IV. RELEVANCY, MATERIALITY, AND (A) Facts in Issue and Relevant to Issues. $99. Evidence held admissible to meet defendant's claim that the suit, unless groundless, would have been brought before.-Berry v. Doolittle (Vt.) 97. $194. In an action by a railroad for loss of property by fire, cinders collected by a witness E. T. & H. K. Ide v. Boston & M. R. R. (Vt.) for plaintiff held properly received in evidence. 101. $195. Models are admissible only where properly verified by preliminary evidence showing they are sufficiently accurate to help the jury.-Hassam v. Safford (Vt.) 197. § 199. In an action by a railroad for loss of property by fire, the court properly permitted an experiment of a spark arrester received in evidence.-E. T. & H. K. Ide v. Boston & M. R. R. (Vt.) 401. §108. The state of mind of a person interfering with the employment of another by a master may be proved by showing that there was no good reason for his doing the act, in which case malice may be inferred from the proved absence of other motive, and, if there be a sufficient justifiable motive, it may still be proved that, in fact, malice was the moving (A) Nature, Form, and Incidents in Genforce. Huskie v. Griffin (N. H.) 595. § 113. A sale consummated on terms embodied in an offer to sell is evidence of the true value of the property at that time.-Belka v. Allen (Vt.) 91. § 113. In a buyer's action for deceit, evidence as to the amount of wood and timber on the land sold is admissible to show its actual value. -Belka v. Allen (Vt.) 91. § 113. In the buyer's action for deceit, evidence of the seller's offer to resell to the buyer two years after the sale for one-half the former price held not too remote to be an index of value.-Belka v. Allen (Vt.) 91. § 113. Evidence of the market value of hay in May is inadmissible in an action for failure to deliver the hay the previous October.-Austin & McCargar v. Langlois (Vt.) 489. (B) Res Gestæ. VII. ADMISSIONS. erai. 213. Evidence that an agent of one of the parties to a contract sued on asked one of the plaintiffs if he would accept a certain sum to settle the matter was properly excluded as an Weand & McDermott (Conn.) 767. offer of compromise.-Beattie v. McMullen, (C) By Grantors, Former Owners, or Priv ies. § 236. In proceedings to establish a claim against a decedent's estate, certain evidence held admissible as parts of conversations between the parties at the making of the agreement relied on by claimant.-Appeal of Hull (Conn.) 925. VIII. DECLARATIONS. As evidence of partnership, see Partnership, $49. In criminal prosecutions, see Criminal Law, § By agent as to his authority, see Principal and 364. (E) Competency. Agent, § 22. (A) Nature, Form, and Incidents in Gen eral. $271. Admission of certain evidence held not erroneous as a self-serving declaration.— Hoxie v. Walker (N. H.) 183. § 271. A letter sent to plaintiff by defendant. giving his version of the contract in suit, held properly excluded as self-serving.-Austin & McCargar v. Langlois (Vt.) 489. IX. HEARSAY. § 314. An admission by a witness, not made as a part of his testimony, is not competent evidence of the fact admitted against the party for whom he testifies.-Genest v. Odell Mfg. Co. (N. H.) 593. § 317. A question what, apart from his obOf impeaching evidence, see Witnesses, §§ 374, servation, a witness had heard that enabled him 392. to say what would be done by others in his line of work, was properly excluded as hearsay.State v. Flanigan (Md.) 818. V. BEST AND SECONDARY EVIDENCE. § 158. Letters written by a railroad claim agent to an injured servant are the best evidence of the representations made thereby by the claim agent to the servant.-Vaillancourt v. Grand Trunk Ry. Co. of Canada (Vt.) 99. § 166. Where items in a book of account were received in evidence, the admission of oral testimony of the contents of the items was not erroneous.-Pierce v. Norton (Conn.) 686. $174. A bill rendered held the best evidence whether its items were dated, and its inspection by the jury to determine that fact was proper.-Hoxie v. Walker (N. H.) 183. X. DOCUMENTARY EVIDENCE. In actions to establish boundaries, see Boundaries, § 36. In criminal prosecutions, see Criminal Law, § 447. (C) Private Writings and Publications. § 355. In a case wherein an engineer's decisions as to the requirements of a contract were in question, held that his oral and written statements, in case of his inability to testify, were the best proof thereof, and that entries in his diaries and memoranda made by him were admissible, but the entries prior to the date of the contract were properly excluded.-Beattie v. McMullen, Weand & McDermott (Conn.) 767. (D) Production, Authentication, and Effeet. $379. Maps and plans are admissible only where properly verified by preliminary evidence showing they are sufficiently accurate to help the jury.-Hassam v. Safford (Vt.) 197. $380. Photographs are admissible only where properly verified by preliminary evidence showing they are sufficiently accurate to help the jury.-Hassam v. Safford (Vt.) 197. § 382. Evidence preliminary to admission of models, maps, plans, and photographs is addressed to the court, and the sufficiency of the verification, though a question of fact, is for its determination.-Hassam v. Safford (Vt.) 197. XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. (A) Contradicting, Varying, or Adding to Terms of Written Instrument. § 387. Action of school board dismissing a principal of schools, regularly entered on its minutes, held conclusive as to the propriety of the dismissal.-Toye v. Exeter Borough School Dist. (Pa.) 60. § 397. Evidence of statements of parties to a written contract are inadmissible to change the effect of the writing afterwards executed. Beattie v. McMullen, Weand & McDermott (Conn.) 767. the machinery room of a mill, certain questions as to plaintiff's belief or expectation as to whether the shafting would fall, etc., held properly excluded.-Girard v. Grosvenordale Co. (Conn.) 1126. § 471. In an action against a railroad for loss of property by fire, a witness, testifying to opportunities for observation, held entitled to testify that on the occasion of the fire shortly before the injury he saw nothing which could have caused the fire, unless it was caused by an engine.-E. T. & H. K. Ide v. Boston & M. R. R. (Vt.) 401. § 474. A witness, to express an opinion as to the market value of land, must have such knowledge of the subject-matter as can be reasonably expected under the circumstances.-Catlin v. Northern Coal & Iron Co. (Pa.) 56. § 486. In an action against a railroad for the loss of a mill by fire set by an engine, a witness may show his familiarity with the structure, but he may not appraise each part thereof, but must limit his estimate of the value to a lump sum.-E. T. & H. K. Ide v. Boston & M. R. R. (Vt.) 401. its area, etc., must be determined before a wit§ 4982. Sufficiency of knowledge of land, ness can express an opinion as to its market value.-Catlin v. Northern Coal & Iron Co. (Pa.) 56. (B) Subjects of Expert Testimony. 471. (C) Competency of Experts. $419. Parol evidence is always admissible to disclose the true consideration of a deed or In criminal prosecutions, see Criminal Law, § other written contract.-R. A. Sherman's Sons Co. v. Industrial & Mfg. Co. (Conn.) 773. ́(B) Invalidating Written Instrument. § 434. Where the alleged fraud goes to the legal existence of the instrument, parol evidence is admissible, though the instrument is under seal.-Vaillancourt v. Grand Trunk Ry. Co. of Canada (Vt.) 99. § 441. Where parties reduced their agreement to writing, the writing merges the preceding negotiations and is the conclusive evidence of their final understanding, so that evidence of verbal agreements prior to or contemporaneous with the execution of the writing is inadmissible to vary its terms.-O'Loughlin v. Poli (Conn.) 763. (D) Construction or Application of Language of Written Instrument. § 448. Where an assignment of a chose in action admits of two interpretations as to the subject-matter, parol evidence is admissible.-New Jersey Produce Co. v. Gluck (N. J. Sup.) 443. § 450. An insurance policy providing for premiums based on the traffic earnings of a ferry held not ambiguous as to what earnings were referred to; and hence not subject to be varied by parol evidence.-Fidelity & Casualty Co. v. Thames Ferry Co. (Conn.) 780. § 460. In the absence of fraud by the vendor, the vendee under a bill of sale was estop ped from varying or modifying the agreement by parol testimony.-Griffin v. Star Printing Co. (Del.) 1072. § 461. Parol evidence to show the meaning of a guaranty held inadmissible.-Newcomb v. Kloeblen (N. J.) 511. XII. OPINION EVIDENCE. § 542. Witness held not qualified to testify as expert as to gases in a certain quality of land.-State v. Flanigan (Md.) 818. he would expect as to the formation of gas un$542. Where a witness could only say what der the circumstances in question, and not what gases would be formed, his opinion was properly excluded.-State v. Flanigan (Md.) 818. § 542. Witness held not qualified to testify as to decomposition of garbage producing carbon dioxide.-State v. Flanigan (Md.) 818. § 542. Witness held not competent to testify whether there was any effective way of dispersing dioxide gas in dangerous quantities in excavation work.-State v. Flanigan (Md.) 818. § 543. A witness held competent to state his opinion of the value of corporate stock.-Halper v. Wolff (Conn.) 890. $ 543. One held competent to estimate the value of a mill.-E. T. & H. K. Ide v. Boston & M. R. R. (Vt.) 401. $543%. Witness held not qualified to give expert opinion as to the extent a lot had been damaged by the cutting of a shade tree.-Van Ness v. New York & N. J. Telephone Co. (N. J.) 456. 5432. A person held not an expert as to the amount of damages to premises from the incumbrance of a sewer running through them. Morrell v. Preiskel (N. J. Sup.) 994. § 546. Exclusion of opinion of witness as expert held in view of his testimony within the discretion of the trial court.-State v. Flanigan (Md.) 818. (D) Examination of Experts. In criminal prosecutions, see Criminal Law, 88 In criminal prosecutions, see Criminal Law, § 448-483. nesses in General. §§ 483. § 553. Question as to what witness would ex(A) Conclusions and Opinions of Wit-pect as to the formation of gas from his knowledge of gases given out in vegetable decomposi§ 471. In a servant's action for injuries by tion held properly excluded in view of the evithe shafting falling upon him while he was in dence.-State v. Flanigan (Md.) 818. § 553. A question to an expert which as- | claimed.-State v. Suffield & Thompsonville sumes material facts not in evidence is errone- Bridge Co. (Conn.) 775. ous.-Lawson v. Crane & Hall (Vt.) 641. $555. An expert, having testified to the value of improved property, both as to the land and the building thereon, could state what in his opinion was the value of each, in an action for breach of covenant against incumbrance in a deed to the property through which a sewer ran. Morrell v. Preiskel (N. J. Sup.) 994. § 558. In action on insurance policy, where expert testified as to the value of the property lost, questions as to the price at which he had sold the property before the fire and as to his interest in the suit were improperly excluded. Reed v. Firemen's Ins. Co. of Newark (N. J.) 477. XIV. WEIGHT AND SUFFICIENCY. Oredibility, impeachment, contradiction, and corroboration of witnesses, see Witnesses, §§ 317-398. In criminal prosecutions, see Criminal Law, §§ Instructions as to weight and sufficiency, see Of newly discovered evidence, as affecting right Verdict contrary to evidence ground for new As to particular facts or issues. See Domicile, § 10; Usury, § 117. Adultery as ground for divorce, see Divorce, 129. $ 586. Positive evidence of a fact is entitled to greater weight than evidence of a negative character.-Lenkewicz v. Wilmington City Ry. Co. (Del. Super.) 11. § 586. Testimony of certain witnesses that they were not annoyed by odors from defendant's rendering plant did not overcome positive proof that complainant and others were nauseated by such odors.-Rausch v. Glazer (N. J. Ch.) 39. § 590. In an action by a bank on a note given by defendant, the jury held entitled to consider certain evidence in weighing the testimony of plaintiff's vice president.-National Bank of North America in New York v. Thomas (R. I.) 1092. $598. A verdict in a civil action should be for the party in whose favor the evidence preponderates.-Lenkewicz v. Wilmington City Ry. Co. (Del. Super.) 11; Schelich v. City of Wilmington (Del. Super.) 367. As method of review of proceedings on petition Bill of exceptions in general, see Exceptions, for review, see Review. Bill of. Contributory negligence in general, see Negli-Necessity and sufficiency for purpose of review gence, § 135. Damages to person suing for death by wrongful act, see Death, § 77. Desertion, as ground for divorce, see Divorce, & 133. Good faith of purchaser of bill or note and Negligence of fellow servant, see Master and Payment, see Payment, § 73. in civil cases, see Appeal and Error, §§ 248- Requisites of record for purpose of review, see To instructions, see Trial, § 281. EXCEPTIONS, BILL OF. In criminal cases, see Criminal Law, § 1092. Payment of debt secured by mortgage, see Taking exceptions at trial, see Trial, § 281. Mortgages, § 319. Validity of deed, see Deeds, § 211. Violation of injunction, see Injunction, § 230. In particular civil actions or proceedings. For injuries at railroad crossings, see Rail- For injuries from negligence, see Negligence, §§ For injuries to persons on or near street rail- For violation of injunction, see Injunction, § 230. On bills or notes, see Bills and Notes, § 525. To enforce liability of corporate officers for To enforce specific performance, see Specific To order denying motion for new trial, see New In criminal cases, see Criminal Law, § 1092. § 55. Denial of certification of a transcript, because no exception was taken within seven trial, held not a finding that the transcript was days from the denial of the motion for a new incorrect.-Vassar v. Lancaster (R. I.) 711. $55. Under Court and Practice Act 1905, § 494, and Supreme Court rule 13 (62 Atl. ix), a transcript of testimony is not the only proof of its correctness.-Vassar v. Lancaster (R. I.) 711. EXCESSIVE DAMAGES. See Damages, § 132. § 584. A committee or other trier is bound to consider all the competent evidence for all the purposes for which it was offered and Ground for new trial, see New Trial, § 76. EXCESSIVE FINES. See Criminal Law, § 1214. EXCHANGE. EXECUTORS AND ADMINISTRATORS. See Descent and Distribution; Wills. Extent and execution of testamentary powers, see Powers, §§ 16, 36. Testamentary trustees, see Trusts. Compelling exchange of receivers' certificates Testimony as to transactions with persons subfor bonds, see Receivers, § 127. sequently deceased, see Witnesses, § 144. EXCISE. II. APPOINTMENT, QUALIFICATION, AND TENURE. Regulation of traffic in intoxicating liquors, see Presumptions as to observance of law in apIntoxicating Liquors. EXCLUSION. pointment, see Evidence, § 83. § 10. In determining the domicile of a decedent for the purpose of making the place.cer From possession, element of adverse possession, tain, it is a rule of law that it shall be the soil see Adverse Possession, § 37. Of will, see Wills, §§ 114-119. Priority of claim of execution creditor against estate of decedent, see Executors and Administrators, § 263. where, at the time of decease, a person has a permanent abode, without any intention of removing therefrom.-Mather v. Cunningham (Me.) 809. $10. Evidence held to show that a decedent domicile of origin in Maine, and acquired a at the time of his death had abandoned his domicile of choice in China, so that the probate court in Maine had no jurisdiction of his estate.-Mather v. Cunningham (Me.) 809. § 10. A Chinese domicile gives a decedent's estate a fixed place of abode, and subjects it to II. PROPERTY SUBJECT TO EXECU- the law governing the locality.-Mather v. Cun TION. § 29. At common law corporate shares were not subject to levy, not being considered as a chattel or a debt.-Fowler v. Dickson (Del. Super.) 601. V. STAY, QUASHING, VACATING, AND RELIEF AGAINST EXECUTION. Audita querela to prevent enforcement of judgment, see Audita Querela, § 3. Restraining sale for defenses to judgment available in original action, see Judgment, § 429. Review of order on motion for stay, see Appeal and Error, § 82. ningham (Me.) 809. § 10. Though a person may have abandoned his domicile of origin, yet if he is prevented by law from acquiring a domicile of choice, then his domicile of testacy would be his domicile of origin.-Mather v. Cunningham (Me.) 809. §14. The authority of an executor nominated in the will is not complete until there has been a compliance with all the prerequisites of Rev. St. 1903, c. 66, § 8.-Chadwick v. Stilphen (Me.) 50. § 14. The probate of a will held not to determine the person to whom, or the time when, letters testamentary shall issue.-Chadwick v. Stilphen (Me.) 50. § 171. If a final judgment against defendant § 17. An adopted child acquires no right to was merged into a judgment subsequently ob- administer on the estate of his adopting parent. tained by plaintiff on scire facias against de-In re Smith's Estate (Pa.) 622. fendant's debtors factorized into the action, defendant's remedy to prevent the enforcement IV. COLLECTION AND MANAGEMENT of the judgment was by a proceeding in the nature of an equitable action or of audita querela. -Russell Lumber Co. v. J. E. Smith & Co. (Conn.) 949; Same v. Waterbury Nat. Bank (Conn.) 950. X. SUPPLEMENTARY PROCEEDINGS. Authority of attorney, see Attorney and Client, $94. $ 371. Where the disclosure commissioner is unable to appear and take a poor debtor's disclosure, it may be taken by the probate judge. acting ex officio as a disclosure commissioner. -West Cove Grain Co. v. Bartley (Me.) 730. $379. Under Rev. St. c. 114. § 23, as amended by Pub. Laws 1905, pp. 137, 144, cc. 131, 134, and Pub. Laws 1907, p. 4, c. 2, where in proceedings to examine a poor debtor there is no magistrate in the town where the debtor, petitioner, or his attorney resides, and the subpœna is issued by the next nearest magistrate, it should be made returnable before such magistrate in the town where he resides.-West Cove Grain Co. v. Bartley (Me.) 730. $ 420. Objections to the irregularities of the summons in disclosure proceedings against a debtor, because not returnable to the proper town, held waived.-West Cove Grain Co. v. Bartley (Me.) 730. OF ESTATE. Extent and execution of testamentary powers, see Powers, §§ 16, 36. (A) In General. § 109. An executrix held entitled to allowIn re Walsh's Estate (N. J.) 563. ance for the expense of a bond furnished. § 111. An executrix held not entitled to an allowance for certain proctor's fees.-In re Walsh's Estate (N. J.) 563. (C) Personal Property. Rights of distributees as against administrators, see Descent and Distribution, § 76. VI. ALLOWANCE AND PAYMENT OF CLAIMS. (A) Liabilities of Estate. Admissions by intestate, see Evidence, § 236. Liabilities of devisees and legatees, see Wills, $ 847. Liabilities of heirs and distributees, see Descent and Distribution, § 142. 206. Where it appears that services were rendered without expectation of payment at the time, no promise of payment will afterwards be implied.-Appeal of Gillette (Conn.) 762. X. ACTIONS. § 210. Where one promised to pay another by will for services rendered, but died without making a will, and the services were per§ 437. Rev. St. c. 89, § 14, limiting actions formed pursuant to the agreement, there could against the executors and administrators, apbe a recovery for the value thereof, not exceed-plies to claims against estates after representaing the amount which claimant should have re- tion of insolvency as well as before, and is an absolute bar unless suit is brought within the ceived by will.-Appeal of Hull (Conn.) 925. period limited.-Jellison v. Swan (Me.) 920. § 212. Where a testator leaving real estate dies after May 20th within any given year, his personal estate is chargeable with the payment of taxes assessed as of May 20th of that year. -Shearman v. Cameron (N. J. Ch.) 979. § 221. In proceedings to establish a claim against a decedent's estate for services, evidence held to justify a finding that there was no expectation on either side that compensation should be made justifying disallowance of the claim.-Appeal of Gillette (Conn.) 762. § 438. Joinder of the heir and residuary legatee with the administrator of a grantor held improper in an action on the grantor's covenant. -McKillop v. Post (Vt.) 78. § 454. Injunction to restrain execution creditor from selling real estate of a decedent, on judgment against the executor, denied.-Holschumaker v. Etchells (Del.) 644. $455. A residuary legatee held not entitled to review by writ of error a judgment against the estate. Court & Practice Act 1905, §§ 886, 888, 891.-Carney v. Superior Court (R. I.) § 221. In an action against an estate to recover for maintenance of decedent's child, cer1018. evidence held inadmissible.-Armitt v. English (N. J. Sup.) 130. tain evidence § 221. In an action against decedent's estate to recover for maintenance of decedent's child, evidence that decedent had at his death cash on hand, and that he generally paid his bills, was too remote.-Armitt v. English (N. J. Sup.) 130. (B) Presentation and Allowance. XI. ACCOUNTING AND SETTLEMENT. (B) Proceedings for Accounting. for the perpetuation of evidence of an account470. Under Rev. St. c. 67, § 20, providing ant's compliance with a decree of distribution, the accountant must act within the time prescribed.-Appeal of Mudgett (Me.) 916. Presumptions as to extension of time for pres- to allow an account of distribution to heirs entation, see Evidence, § 83. (D) Priorities and Payment. $261. Taxes not mentioned by Rev. Code 1832, c. 89, § 25, fixing the order in which demands against decedents shall be paid, held, to be included in the last clause composed of "other demands," so as to be paid after judgments.-Dayett v. Willits (Del. Orph.) 689. $263. Under Rev. Code 1852, p. 846, c. 111, $ 63, held that where one creditor obtained judgment and execution, and levied upon the debtor's chattels, which were sold at the debtor's administrator's sale. he was entitled to the proceeds in preference to another judgment creditor who had obtained no execution or levy.-Dayett v. Willits (Del. Orph.) 689. $264. Rights of chattel mortgagee, under 15 Del. Laws, p. 616, c. 477. § 1, as amended (20 Del. Laws, p. 976, c. 458). upon the death of the mortgagor in possession, stated.-Dayett v. Willits (Del. Orph.) 689. $265. Where a son, as executor of his mother's estate, collects money for property sold, and allows his father to use it, such sum held to be a proper charge against the father's estate on the son subsequently becoming executor of the father's estate.-Shearman v. Cameron (N. J. Ch.) 979. § 271. Property in the hands of trustees held not subject to the debts of the beneficiary.Galard v. Winans (Md.) 626. § 470. A judge of probate has no jurisdiction and legatees, unless presented within one year after decree of distribution.-Appeal of Mudgett (Me.) 916. for and another, both distributees of the estate, $502. Partnership affairs between an execushould not be settled through the executor's account. In re Wentz's Estate (Pa.) 424. $502. The mingling of the administration account with the distribution account held bad practice.-In re Wentz's Estate (Pa.) 424. $504. Refusal to allow filing of exceptions to adjudication of administrator's account within the term nunc pro tune held error.-In re Irwin's Estate (Pa.) 212. § 513. An action against an executor and trustee for discovery and accounting, held properly brought in chancery.-Shearman v. Cameron (N. J. Ch.) 979. given circumstances, it is proper to allow a § 513. An amount of a credit which, under trustee stated.-Shearman v. Cameron (N. J. Ch.) 979. VII. DISTRIBUTION OF ESTATE. Partition of property of estate, see Partition. Right of executor to set off individual claims against distributee, see Set-Off and Counter-V. Cameron (N. J. Ch.) 979. claim, § 46. § 513. Effect of approval by the orphans' court of an executor's report stated.-Shearman VIII. SALES AND CONVEYANCES UNDER ORDER OF COURT. Restraining sale by execution creditor for defenses to judgment available in original action, see Judgment, § 429. IX. INSOLVENT ESTATES. 419. Under Gen. St. 1902, §§ 409, 410, 620, an administrator held entitled to appeal from the allowance of a claim against the estate.-Appeal of Gillette (Conn.) 762. XII. FOREIGN AND ANCILLARY AD- § 518. Rev. St. 1903, c. 66, §§ 13, 16, authorizing ancillary administration of a nonresident's estate, held in recognition of the common-law principle that an executor's authority is confined to the sovereignty appointing him.-Chadwick v. Stilphen (Me.) 50. § 518. Where but one of two executors of a foreign will petitioned for letters testamentary, held that he was the legal executor of the will having authority over the estate to be admin |