objectionable, as calling for evidence which might be opinion.-Worden v. Gore-Meehan Co. (Conn.) 422.

$474. In condemnation proceedings, certain testimony as to the value of the land sought to be taken held inadmissible.-White v. Pennsylvania R. Co. (Pa.) 1035.

§ 488. Certain facts held not to exclude testimony as to value of the land sought to be taken. Savings & Trust Co. of Indiana, Pa., v. Pennsylvania R. Co. (Pa.) 1039.

§ 488. Certain testimony held competent as to the market value of the land.-Savings & Trust Co. of Indiana, Pa., v. Pennsylvania R. Co. (Pa.) 1039.

§ 4982. Competency of witness in eminent domain to testify as to the value of the land determined.-Leard V. Pennsylvania R. Co. (Pa.) 1034.

(B) Subjects of Expert Testimony.

§ 517. An expert called to prove as a fact the law of a sister state may testify only to

what the law of the sister state is, and he cannot apply that law to the facts in controversy. -Jenness v. Simpson (Vt.) 886.

(C) Competency of Experts.

§ 543. Objection to the competency of a wit ness held untenable.-Savings & Trust Co. of Indiana, Pa., v. Pennsylvania R. Co. (Pa.) 1039.

§ 546. While the question of market value of land is not one exclusively for an expert, the trial judge should see that every witness called to prove such value has a proper foundation of knowledge so as to make his opinion of some real worth before admitting it as evidence. Rea v. Pittsburg & C. R. Co. (Pa.) 73.

(D) Examination of Experts.

§ 547. In an action for death of a servant by a cave-in in a tunnel, a question asked an expert with reference to the safety of the tunnel held properly disallowed, the witness having already given an opinion which rendered the question unnecessary.-Worden v. GoreMeehan Co. (Conn.) 422.

$552. In an action for a railroad passenger's death, claimed to have resulted from taking the grip while in an unheated waiting room, held not error to exclude a question to a physician as to where intestate contracted the cold. -Crawford v. Maine Cent. R. R. (N. H.) 1078. § 553. A question calling for expert opinion based on a fact assumed, which was neither admitted nor proved, was properly disallowed.— City of Bayonne v. Standard Oil Co. (N. J.)

146.

§ 555. In an action for death of a servant by a cave-in in a tunnel, a question asked an expert with reference to the safety of the tunnel held properly disallowed for failure to assume facts on which it was based.-Worden v. Gore-Meehan Co. (Conn.) 422.

§ 555. On an appeal from a tax assessment, where an assessor who had passed on the assessment while testifying on direct examination produced a diagram in court under an order of the court, made as required by Baltimore City Charter, § 170, and explained that it contained data relating to property in the neigh borhood, held, that it was admissible.-City of Baltimore v. Hurlock (Md.) 558.

§ 555. On an appeal from an assessment where an assessor who made the assessment qualified as an expert in valuations, held, that the data on which his opinion as to the valuation of the assessment in question was grounded, was admissible on direct examination.-City of Baltimore v. Hurlock (Md.) 558.

§ 555. In proceedings to condemn land in a large city, the field which a witness may consider in forming an opinion of the selling price of land in the vicinity should be reasonably adjacent to such lands and of the same generPittsburg & C. R. Co. (Pa.) 73. al character as the immediate locality.-Rea v.

(F) Effect of Opinion Evidence.

§ 571. The question of what the average man will appreciate as bearing on the assumption of risk is for the jury, and an expert giving his opinion that a danger was such that any man ought to understand that it was hazardous is not conclusive on the jury.-Bouthet v. International Paper Co. (N. H.) 650.

XIII. EVIDENCE AT FORMER TRIAL

OR IN OTHER PROCEEDING. In criminal prosecutions, see Criminal Law, §

547.

XIV. WEIGHT AND SUFFICIENCY.

Credibility, impeachment, contradiction, and corroboration of witnesses, see Witnesses, $$ 311-405.

Effect of tax deeds as evidence, see Taxation, § 789.

In criminal prosecutions, see Criminal Law, § 552-561. Questions for jury, see Trial, §§ 139-143. Review as dependent on presentation of question in lower court, see Appeal and Error, § 209.

Review as dependent on presentation of question in record, see Appeal and Error, § 696 Scope and extent of review, see Appeal and Error, $$ 987-1024.

Verdict contrary to evidence ground for new trial, see New Trial, § 72.

As to particular facts or issues. See Deeds, § 211; Fraud, § 58. Assumption of risk by servant injured, see Master and Servant, § 280. Contributory negligence of servant injured, see Master and Servant, § 281. Creation, existence, and validity of trust, see Trusts, $§ 44, 89, 110.

Desertion as ground for divorce, see Divorce, § 133.

Execution, existence, and genuineness of will, see Wills, § 302.

Fraud in procuring bill or note, see Bills and Notes, 520.

Fraud or undue influence in procuring execuNegligence of master causing injury to servtion of will, see Wills, § 166. ants, see Master and Servant, § 278.

Notice of dishonor of bill or note, see Bills

and Notes, § 526.

Title to property sold at tax sale, see Taxation, $ 789. Validity of deed, see Deeds, § 211.

In particular civil actions or proceedings. See Ejectment, § 95; Review, § 23; Work and Labor, § 28.

For fraud, see Fraud, § 58. For divorce, see Divorce, §§ 124-133. For injunction, see Injunction, § 128. For injuries at railroad crossings, see RailFor injuries from defects or obstructions in roads, § 348. streets, see Municipal Corporations, § 819. For injuries from fires caused by operation of railroad, see Railroads, § 482.

For injuries to passengers, see Carriers, § 318. For injuries to persons on or near street railroad tracks, see Street Railroads, § 114. For injuries to servants, see Master and Servant, $$ 276-281.

For price of goods sold, see Sales, § 359. On bills or notes, see Bills and Notes, §§ 517527.

On insurance policies, see Insurance, § 665. Probate proceedings and actions relating to wills or probate, see Wills, § 302. To foreclose mortgage, see Chattel Mortgages, § 278.

§ 586. Testimony of witnesses that automobile horn was sounded, and that they heard it, held of more weight than that of witnesses who say that they did not hear it.-Campbell v. Walker (Del. Super.) 601.

§ 586. As a rule direct or positive evidence of a fact is entitled to greater weight than evidence of a merely negative character.-Truman v. Wilmington City Ry. Co. (Del. Super.) 636. § 586. The affirmative testimony of witnesses that they heard the ringing of a car bell is of greater weight than the negative testimony of other witnesses that they did not hear it ring. -McCartney v. People's Ry. Co. (Del. Super.)

771.

$ 586. Proof of negligence in failing to signal at a highway as required by P. L. 1903, p. 663, § 35, held not conflicting so as to require submission of that fact to the jury.-Blauvelt v. Erie R. Co. (N. J. Sup.) 1048.

§ 588. Where testimony is conflicting, the jury held required to weigh the testimony on the respective sides and give their verdict to that side on which the testimony is of the greater weight.-Campbell v. Walker (Del. Super.) 601.

§ 588. In estimating weight of evidence, jury held bound to consider witnesses' means of knowledge, their intelligence, apparent truthfulness, and fairness, and any other facts that show the reliability of their statements.-Campbell v. Walker (Del. Super.) 601.

§ 588. A jury should reconcile conflicting testimony, if they can; but, if they cannot. they should accept that part of it which they deem worthy of credit and reject that which they deem unworthy.-Truman v. Wilmington City Ry. Co. (Del. Super.) 636.

$588. The jury should reconcile conflicting testimony, if they can, and, if they cannot, should be governed by that testimony which they deem most credible.-Brinckle v. England (Del. Super.) 638.

§ 588. In determining the weight of testimony and credibility of witnesses, the jury may consider their apparent fairness, opportunity of knowledge, and accuracy of recollection.-Butler v. Wilmington City Ry. Co. (Del. Super.) 871. $588. Rule governing jury in weighing conflicting testimony stated.-Klair v. Philadelphia, B. & W. R. Co. (Del. Super.) 1085.

§ 590. The testimony of four reputable witnesses, two of whom are without interest and two of whom testify against their own interest. must prevail over the testimony of one interested witness.-Russell v. Carman (Md.) 903. $ 596. The jury must decide in favor of the party on whose side the weight of the evidence preponderates.-McCartney v. People's Ry. Co. (Del. Super.) 771.

$ 598. In an action by the seller for the contract price of goods, which the buyer had returned on the ground of a defect of quality, the jury. in determining the issue of quality, is bound by a preponderance of the evidence.Moline Jewelry Co. v. Otwell, Lowe & Tull (Del. Super.) 300.

§ 598. The preponderance of evidence depends on the weight of the testimony.-Butler v. Wilmington City Ry. Co. (Del. Super.) 871.

$598. The greater number of witnesses testifying one way held not controlling, to the exclusion of other elements of credibility.-Marzulli v. Metropolitan Life Ins. Co. (N. J. Sup.) 1051.

§ 36. Under Acts 1898, No. 35, a bill of exceptions held filed in time. Jenness v. Simpson (Vt.) 886.

§ 40. Under Gen. Laws 1909, c. 298, § 17, and under c. 278, §§ 3, 4, the time for filing a bill of exceptions and the transcript held in the first instance the same, but, where the time for filing the transcript is extended beyond that originally fixed for the filing of the bill of exceptions, the bill of exceptions need not be filed at the same time as the transcript, but only within 10 days thereafter.-Horton v. Amoral (R. I.) 265.

§ 55. The Supreme Court will not, under Gen. Laws 1909, c. 298, § 21, establish the truth of a bill of exceptions, on failure of the superior court to act thereon, where it and the transcript of evidence were filed in the superior court after the time as extended therefor. Sections 17, 18.-James R. McLean Co. v. Wheelwright (R. I.) 261.

§ 55. A petition to establish the truth of exceptions and the correctness of the transcript of testimony held to establish the exceptions, in the absence of any objection thereto.-Cohen v. Superior Lodge, No. 516, I. O. B. A. (R. I.) 897.

$55. A petition to establish the truth of exceptions, under Gen. Laws 1909, c. 298, § 21. will be denied for want of sufficient affidavit of petitioner to establish the truth of the exceptions.-Warren v. Warren (R. I.) 1041.

EXCESSIVE DAMAGES.

Ground for new trial, see New Trial, § 76.
EXCESSIVE FINES.

See Criminal Law, § 1214.

EXCISE.

Regulation of traffic in intoxicating liquors, see Intoxicating Liquors.

EXCISE COMMISSIONERS. See Intoxicating Liquors, § 61.

Act establishing board of excise commissioners as special or local law, see Statutes, § 94.

her estate on her predeceasing him.-In re Grattan's Estate (N. J. Prerog.) 813.

IV. COLLECTION AND MANAGEMENT OF ESTATE.

(A) In General.

$275. Irregularities in issuance of the writs of fieri facias and venditioni exponas or in the sheriff's return to the writ of fieri facias are cured by acknowledgment of the sheriff's deed in open court.-Clough v. Welsh (Pa.) 1000.

XI. EXECUTION AGAINST THE

PERSON.

§ 448. Under Pub. St. 1901, c. 236, § 12, where a justice of the superior court presiding at the trial retired before judgment was rendered, held, that his successor could grant a certificate that the cause of action arose from defendant's willful and malicious act, for the purpose of preventing defendant's discharge from arrest under chapter 235.-Leighton v. Bills (N. H.) 643.

$ 448. Under Pub. St. 1901, c. 236, § 12, a defendant cannot be discharged from arrest in the cases provided if a certificate that the cause of action arose from his willful and malicious acts is made upon the back of the execution issued in the action.-Leighton v. Bills (N. H.) 643.

EXECUTIVE POWER.

Constitutional limitations, see Constitutional Law, § 76.

$ 88. Appointment of a mortgagor as the mortgagee's executor or administrator discharges or suspends right of action on the debt since the appointee cannot sue himself.-Stewart v. Hurd (Me.) 838.

$88. Appointment of a mortgagor as exeentor or administrator of the mortgagee and his charging himself with the amount of the debt in his inventory and account does not ipso facto discharge, nor amount to payment of, the note and mortgage.-Stewart v. Hurd (Me.) 838. (B) Real Property and Interests Therein. father, was in possession of certain real estate § 131. Where plaintiff, as executor of his devised to defendant, and charged himself with the reasonable value of the use and occupation, and expended the same in payment of testator's debts, he was not liable therefor to the devisee, under Rev. Code 1852, amended to 1893, c. 89. § 28.-Loscolzo v. Eggner (Del. Super.) 607.

§ 138. Power of executor to sell real estate for division held mandatory, and to attach to an administrator with the will annexed, under Court and Practice Act 1905, § 840.-In re Adams (R. I.) 524.

V. ALLOWANCES TO SURVIVING WIFE, HUSBAND, OR CHILDREN.

Inheritance by surviving wife, see Descent and Distribution, § 55.

See Descent and Distribution; Wills. Conclusiveness of judgment against estate of decedent in one state against administrator in another state, see Judgment, § 688. Courts of probate, see Courts, § 202. Promise to pay debts barred by limitation, see Limitation of Actions, § 143. Testamentary trustees, see Trusts. Testimony as to transactions with persons subsequently deceased, see Witnesses, §§ 139-181.

I. ADMINISTRATION IN GENERAL.

§ 1. The general duties of an executor are to collect the effects of decedent, to pay the claims against his estate, and distribute the residue to those entitled thereto.-In re Hibbler's Estate (N. J. Prerog.) 188.

§ 1. "Trustee" defined. In re Hibbler's Estate (N. J. Prerog.) 188.

§ 1. The office of executor or trustee will be determined by the character of the estate confided to him by the will and the powers to be exercised by him as the representative of testator. In re Hibbler's Estate (N. J. Prerog.) 188. III. ASSETS, APPRAISAL, AND INVENTORY.

§ 46. A policy on a husband's life taken out by him for his wife's benefit held to belong to

CLAIMS.

(A) Liabilities of Estate. Promise to pay debts barred by limitation, see Limitation of Actions, § 143.

§ 221. In an action by a daughter to recover for services rendered decedent, evidence held not to show that the services were rendered under a mutual understanding that plaintiff was to be paid therefor.-Danyew v. Powers Estate (Vt.) 785.

(B) Presentation and Allowance. $227. A written claim, to be presented to an executor or administrator, under Rev. St. e. 89. § 14, must exhibit the nature, as well as the amount, of the claim.-Hurley v. Farnsworth (Me.) 291.

$227. A written claim for "balance due Jany. 1, 1904, $2,265.50," does not exhibit the nature of the claim, as required by Rev. St. c. 89, § 14.-Hurley v. Farnsworth (Me.) 291. § 227. Evidence held insufficient to show waiver by administrator of right to be informed of nature of a claim' presented against the estate.-Hurley v. Farnsworth (Me.) 291.

(C) Disputed Claims.

§ 256. Under certain conditions, held, that the Supreme Court will not reverse a decree

of the orphans' court dismissing exceptions to the auditor's report.-In re Fry's Estate (Pa.) 1033.

VII. DISTRIBUTION OF ESTATE. Partition of property of estate, see Partition.

§ 314. Under P. S. 2973, an executor held to have the right to appeal from a decree of distribution. In re Vincent's Estate (Vt.) 714.

VIII. SALES AND CONVEYANCES UNDER ORDER OF COURT.

(B) Application and Order.

Demurrer in suit for sale of land, see Equity, § 233. Objections as to parties in suit for sale of land, see Equity, § 117.

§356. Under Orphans' Court Act (Laws 1898. p. 743) § 81. a creditor may file his bill in chancery to enforce his statutory lien.Simpson v. Bockius (N. J. Ch.) 758.

356. A bill to subject land conveyed by a decedent to a creditor's lien held not defective for failure to state that the suit is brought for the benefit of other creditors than complainant. -Simpson v. Bockius (N. J. Ch.) 758.

(C) Sale.

§ 388. Under Rev. Code 1852, amended to 1893, p. 690, c. 90, § 8, defining the rights acquired by a purchaser at an executor's sale of real estate, a purchaser after confirmation by the court, acquires the right to the accruing rents from the day of sale.-Lynch v. Doordon (Del. Super.) 297.

$388. Stipulated conditions of sale in respect to real estate sold by plaintiff as executor under order of the orphans' court held to be a reservation by the executor of the rents accruing during the time between the sale and its confirmation.-Lynch v. Doordon (Del. Super.)

297.

§ 392. In an action on a bond, evidence held to justify refusal of a request assuming the existence of a certain condition.-Hobbs v. Bennett (Me.) 362.

X. ACTIONS.

Administrator as party to suit to construe will, see Wills, & 700.

Effect of death and administration in general, see Limitation of Actions, $ 80. Right of action for partition, see Partition, § 32.

Rules of court relating to proof of representative capacity, see Courts, $§ 80. Testimony as to transactions with decedent, see Witnesses, § 159.

§ 439. In an action to subject land conveyed by a decedent to a lien of a creditor, decedent's administrator is a proper party.-Simpson v. Bockius (N. J. Ch.) 758.

§ 443. Under Gen. Laws 1909, c. 285, § 4, the court held authorized in its discretion to permit an amendment to the declaration in an action against an administrator so as to cure the defect arising from a failure to allege the filing of the claim in the office of the clerk of the probate court as required by statute.-Roberts v. White (R. I.) 497.

§ 444. A plaintiff suing an administrator as such need not, at common law, prove defendant's representative character unless it is denied by a special plea.-Roberts v. White (R. I.) 497.

§ 448. Under Gen. Laws 1909, c. 285. § 4, the court held authorized in its discretion to permit an amendment to the declaration in an action against an administrator so as to cure

the defect arising from a failure to allege the filing of the claim in the office of the clerk of the probate court as required by statute.Roberts v. White (R. I.) 497.

§ 455. The variance between the declaration in an action against an administrator with will annexed and the evidence showing the filing of the claim in the manner required by Court and Practice Act 1905, § 883 et seq., held not open to defendant.-Roberts v. White (R. I.) 497. XI. ACCOUNTING AND SETTLEMENT. (A) Duty to Account.

$465. One to whom funds were paid as representative of the heirs of deceased held not accountable therefor as her administrator on subsequently being appointed as such.-In re Grattan's Estate (N. J. Prerog.) 813.

(B) Proceedings for Accounting. § 468. An executor, who was also remainderman, failing to account for personal property passing under the will, in the proper jurisdiction, could be compelled to account for such property in a suit by the life tenant.-Geyer v. Geyer (N. J. Ch.) 449.

(D) Compensation.

§ 495. One may be executor and trustee under a will and entitled to commissions on the corpus of the estate in each capacity.-In re Hibbler's Estate (N. J. Prerog.) 188.

§ 496. No more than 5 per cent. in all may be allowed to a trustee or trustees, either one or several in succession, for the care and management of the corpus of the trust estate. -In re Hibbler's Estate (N. J. Prerog.) 188.

§ 501. An allowance to one made executor and trustee under a will held an allowance to him as trustee, though the accounts were filed as executor.-In re Hibbler's Estate (N. J. Prerog.) 188.

(E) Stating, Settling, Opening, and

view.

Re

his final accounting for 20 years, all doubts as $508. Where an administrator has delayed to the validity of a judgment sustaining exceptions to such an accounting will be resolved against the administrator.-Huston v. Roe (N. J. Prerog.) 162.

§ 511. Statement as to right of exceptant to the account of an administrator to collect counsel fees awarded him.-In re Grattan's Estate (N. J. Prerog.) 813.

$ 515. The superior court has jurisdiction to determine whether the legatees agreed to discharge the executor and to then divide the estate among themselves and to give effect to such agreement.-Wentworth v. Wentworth (N. HI.)

646.

§ 515. A party interested in the estate of a decedent and aggrieved by the distribution of the estate pursuant to a settlement between the legatees and the executor must, if he desires further administration, apply therefor to the probate court.-Wentworth v. Wentworth (N. II.) 646.

XIII. LIABILITIES ON ADMINISTRATION BONDS.

Competency of testimony to contradict executor as witness in action on bond, see Witnesses, § 390.

Lien of judgment on indemnity bond, see Judgment, $795. Self-serving declarations in action on executor's bond, see Evidence, § 271.

$537. Under Court and Practice Act 1905, $$ 883. 886. 1012, 1013, 1027, held, that it was necessary, to enable a creditor to sue on a bond given by an executrix to pay debts and

legacies, to file the claim sued on with the probate court, and to show that it had not been disallowed by the executrix, or, if disallowed, that it had been established, though it is not necessary to obtain a decree of unfaithful administration.-Municipal Court of Providence v. Bostwick (R. I.) 53.

EXECUTORY CONTRACTS.

In general, see Contracts.

EXECUTORY DEVISES.

See Perpetuities, § 6.

EXEMPTIONS.

See Homestead.

From legacy, inheritance, and transfer taxes, see Taxation, § 876. From liability for loss of or injury to goods, see Carriers, §§ 147-157. From liability for loss of or injury to live stock, see Carriers, § 218.

From taxation, see Taxation, §§ 204-251, 876.

EX PARTE PROCEEDINGS.

Habeas corpus, see Habeas Corpus.

EXPENDITURES.

By guardian, see Guardian and Ward, § 58.

EXPENSES.

Of counties, see Counties, § 137.

EXPERT TESTIMONY.

See Evidence, §§ 517, 543-555, 571. Compensation of expert witnesses, see Witnesses, § 28.

EXPRESS COMPANIES.

Right of shipper to proceeds of insurance, see Insurance, § 582.

EXPRESS TRUSTS.

See Trusts, §§ 14-61, 140.

EXPROPRIATION.

See Eminent Domain.

EXTENSION.

Of time for payment or other performance as discharge of surety, see Principal and Surety, § 105.

See Brokers.

FACTORS.

FAILURE OF CONSIDERATION.

Of release, see Release, § 13.

FALSE IMPRISONMENT.

See Kidnapping.

Right to make, and mode of making, arrest in general, see Arrest, § 63.

I. CIVIL LIABILITY.

(A) Acts Constituting False Imprisonment and Liability Therefor.

§ 15. The duties of a railway policeman under P. L. 1904, p. 322, § 4, are confined to criminal cases.-Taylor v. New York & L. B. R. Co. (N. J.) 169.

815. If railway policemen appointed under P. L. 1904, p. 322, § 4, are employed in matters aside from their statutory duties, the employer is liable for what they do the same as in other cases of agency.-Taylor v. New York & L. B. R. Co. (N. J.) 169.

FALSE REPRESENTATIONS.

See Fraud.

Affecting right to specific performance, see Specific Performance, § 53.

Affecting validity of insurance policy, see Insurance, §§ 256-291, 655, 723.

Affecting validity of sale, see Sales, § 43; Vendor and Purchaser, §§ 33-36.

FALSE SWEARING.

See Perjury.

FAMILY.

See Husband and Wife.
Homestead, see Homestead.

Services rendered between persons in family relation, see Work and Labor, § 7.

FAMILY SETTLEMENTS.

See Wills, § 740.

FARES.

For carriage of passengers, see Carriers, § 249.

FARMS.

Farming on shares, see Landlord and Tenant, §§ 324-327.

EXTRA WORK.

Compensation for alterations and extra work by party to contract, see Contracts, § 232.

EXTRINSIC EVIDENCE.

In general, see Evidence, §§ 397-458.

FAULT.

FEDERAL GOVERNMENT.

See United States.

FEES.

Of witnesses, see Witnesses, § 28.

FEE SIMPLE.

FACT.

Evidence of matters of fact or conclusions, see
Evidence, § 471.

Findings of fact, see Trial, §§ 400-404.
Judicial notice of facts, see Evidence, § 29.
Questions of law or fact, province of court and
jury, see Trial, §§ 138-143.

Construction of wills, see Wills, §§ 597–627.

FELLOW SERVANTS.

See Master and Servant, §§ 168-201.

FEME COVERT.

See Husband and Wife.