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EVIDENCE Continued

direct examination, it was error to overrule objections there

to on cross-examination.-Bowsher v. C. B. & Q. R. Co., 16.
12. Rule Applied- It appearing by the conductor that a passenger

was ejected for failure to pay ten cents extra fare on failure
to buy a ticket, it was error to permit testimony as to
whether he had not carried others without exacting such
payment; and that another was injured by passing under

a plank used to transfer baggage and mail-Idem.
Death-See & ante.

Declarations-See * post.
18. WIFE AS TO DIVORCE—When No Estoppel-Where a wife made

declarations, in random conversations, that her husband
had secured a divorce from her, and it is not shown that
they were communicated to any party interested in the
matter or acted on by any such party, she would not be
estopped by such declarations to deny the divorce.-Good-

win v. Goodwin, 319.

Defenses-See 33 post.
14. Defense and Counterclaim- Parol evidence cannot vary a note,

but is admissible to establish a cause of action against plain-
tiff which operates as a payment of his note.-Clement, Bane

& Co. v. Houck, 504.
15. Degree of Proof-In an action on an accident policy defended

on the ground that the wound was self-iflicted, an instruction
that all the circumstances to warrant such findings must
be consistent with such conclusion, and absolutely incompat-
ible with any other reasonable hypothesis. states a rule
obtaining only in criminal cases, and was properly refused.-

Long v. Travelers Ins. Co., 259.
16. PREPONDERANCE SUFFICIENT IN CIVIL SUIT-In a civil action,

an instruction that plaintiff's case must be established by a
fair preponderance of the evidence is proper.-In re Jamison,

720.
Doctors -See, ante.
Estoppel-Soe 18, ante.

Exclusion-See", ante.
17. Where, in an action for services, plaintiff had just testified

that a bill which he had once presented to defendants, and
which was paid, was rendered before any of the transactions
in controversy arose, and that some of the items in suit were
not in such bill, it was not error to sustain objection to a
question as to why they were so included.—Lindt v. Schlitz

Brew. Co., 200.
18. BROKERS-Double Commissions-In an action by a broker for

commission in purchase of lands for defendants, the issue
being whether plaintiff could have a commission from a
buyer after having been paid one by the seller, defendants
having introduced the vendor as a witness, and he having
testified that he paid commissions to such broker for effect.
ing the sale, it was not error to exclude evidence of the

amout paid by him.-Idem.
Small Bigures refer to subdivisions of Indes. The others to page of report.

INDEX.

791

EVIDENCK Continued

19. REFT'SAL TO EXCLUDE—Harmless Error-No prejudice results

from a refusal to strike out answers requiring simple com-
putations to make them definite answers to question as to
the value of abutting property immediately before and after
injury thereto resulting from street improvement.-Millard

v. City of Webster City, 220.
20. Expert Evidence- DUTIES OF BRAKEMAN-Plaintiff's intestate,

a. brakeman on defendant's road, was thrown from the top
of a freight car, and killed, while the train was being backed,
under directions of the head brakeman, to kick certain cars
onto a switch. The head brakeman had failed to uncouple
the cars to be kicked off, so that when he signaled to stop,
the suden jerk threw deceased to the ground. Held, such
head brakeman should have been permitted to testify what
deceased's duties on top of the car were, and what his duty
would have been as to stopping a switched car if it had been

detached.-Quinlan v. C. R. I. & P. Ry. Co., 89.
21 INSTRUCTIONS ON EXERT TESTIMONY-An instruction character-

izing expert testimony in a case as “made up largely of mere
theory and speculation, and which suggests mere possibil-
ities," was properly refused.-Long v. Travelers Ins, Co.,

259.
22. SUBJECT OF EXPERT TESTIMONY—The distance at which powder

stains are caused by firearms, and the probable effects of
gas generated by the explosion of powder in the dischage
of a gun, as dependent on its proximity to the person of
one claiming to have been accidentally injured thereby, are

subjects of expert evidence.-Idem.
23. Same-An expert may not say whether testator was capable of

transacting ordinary business intelligently.-In re Betts, 111.
24. Whether Part of Land Has Been sold.-Witnesses familiar

with the business of a corporation may say whether it has
sold portions of land which it had owned.-Boddy v. Henry,

462.
25. Impeachment_FORMER CONVICTION—Under Code, section 4602,

providing that facts which have heretofore caused the ex-
clusion of testimony may still be shown to lessen its cred-
ibility, it was error to introduce the record of the federal
court showing a conviction in another jurisdiction for carry-
ing on the business of a liquor dealer without paying the

special tax.-Palmer v. C. R. & M. Ry. Co., 442.
26. SameCode, section 4613, does not permit the introduction

of a record of conviction in another jurisdiction for an
offense less than a felony, to affect a witness' credibility.

-Idem.
Harmless Error-Sees, 19 ante.
Husband and Wife-See 13 ante, " post.
Improper Obtaining-See 1 ante.
Insurance -See 'ante, post.
Instructions-See al ante.
Intent-Seo 17 ante.

Invoice-See 3 post.
Small figures refer to subdivisions of Index. The others to page of report,

EVIDENCE Continued

27. Intent in Obtaining Insurance— It was proper, as evidence of

an itention to defraud, to show that defendant had falsely
represented that he was going on the road as a collector, and
he would be able to pay the premium from his salary; that
he falsely represented the premium note to have been signed
by his wife as surety, he having imitated her handwriting;
that he kept from her the fact of obtaining insurance
aggregating $34,000, though accustomed to talk over such
matters with her, and that he entertained the agents, while
preparing his policies, with stories of others being injured
while hunting, and who were indemnified.-Long v. Travelers

Ins. Co., 259.
Marriage-See 34, post.

Materiality-See is, ante.
28. POWDER STAINS-Plaintiff wore an overshoe over a slipper, and

the evidence tended to show that the former had no powder
stains, and was split down to the toe, and the theory of
the defense was that the muzzle of the gun when discharged
was inside the top of the overshoe, and hence must have
been voluntarily placed there for that purpose. Held, that
the distance at which the powder stains are caused by fire-

arms was material.-Idem.
29. Motive— Evidence tending to show plaintiff's insolvency and

that he was in pressing need of money to pay insistent cred-
itors, was rightly received for the purpose of fixing a motive

for plaintiff's alleged self-infliction of injuries.-Idem.

Notes-See 33, post.
30. Objection After Answer— An objection to a question after the an-

swer is in, is ordinarily too late, to be available. -Parker v.

City of Ottumwa, 649.
31.-Opinions— COLLISION WITH BICYCLE-Time to Dismount-In

an action for injuries received by a bicycle rider in collision
with defendant's street car, it was error to allow defendant's
witnesses to state how long it would take to dismount on
meeting an approaching team.- Palmer v. C. R. & M. Ry.

Co., 442.
Order of Proof-See 5, ante.

Parol Variance-See 4, ante.
32. PAROL VARIANCE OF INVOICE TAKEN—The fact that a witness

has made an invoice of the cost price of goods did not pre-
clude him from testifying orally to the wholesale cost there-

of.-Shawyer v. Chamberlain, 742.
33. DEFENSES TO NOTE-In a suit on a note the defense was that

prior to the giving of the note the maker had agreed to pur-
chase goods from plaintiffon an understanding that, if
the goods proved unsaleable in defendant's territory, he
should have a right to return them at their purchase price,
and that a portion of them were unsaleable, and hed been
tendered to plaintiff. Held, that evidence to substantiate
this defense, as a defense, was properly excluded.-Clement,
Bane & Co., V. Houck, 504.

Small igures refer to subdivisions of Inder. The others to page of report.

EVIDENCE Continued

Pleading-See, ante.
Physicians-See , ante.

Powder Stains -See 98, ante.
34. Presumptions—CONTINUANCE OF FIRST MARRIAGE-Where a man

was married to two women the presumption of the validity of
the second marriage, in the absence of other evidence of a
divorce, would not overcome the presumption of a continu-
ance of the first marriage, in a case in volving property

rights.—Goodwin v. Goodwin, 319.
86 Rebuttal-Self Serving Declarations—Where a defendant con-

tends that another is the guilty party, that other should not be
allowed, on rebuttal, to narrate a conversation, not had in the
presence of defendants, which conversation amounts to a
declaration that narrator is innocent, though the person with
whom the conversation was had testified thereto for the state,

on his direct examination.-State v. Lee, 348.
36. REPAIR AFTER ACCIDENT—Where defendant in an action for in-

juries occasioned by a defective sidewalk offered evidence
tending to show that the walk was in good repair before,
at, and after the accident, it was competent to show in
rebuttal that repairs were made near the place in question,

after the accident.-Parker v. City of Ottumwa, 649.
Repairs -See 36, ante.

Representations-See 39, ante.
37. Secondary-Conclusions of the witnesses as to the number of

acres of land belonging to a corporation, based on docu-

mentary evidence, are not admissible.—Boddy v. Henry, 462.

Sidewalks-See 86, ante.
38. Statute of Frauds—CONTRACT WITH SIGNATURE TOR& OFF—Where

a husband and wife were proved to have executed an ante-
nuptial contract, and after the death of the husband all that
could be found was the first four pages, the signature being
missing, the statute of frauds, requiring such contracts to
be in writing, and signed by the parties, did not render such
part inadmissible in evidence to prove the contents of the

contract.—Devoe's Estate, 4,
39. Telephones— CONVERSATION BY-Evidence of a conversation over

a telephone is not inadmissible.-Shawyer v. Chamberlain,

742.

Transactions with Decedents - See &. ante.
40. Value - See 18 ante-Where, in an action for injuries to a passen-

ger sustained by reason of ejection from a train, there was no
evidence of the reasonable value of a doctor's services ren.
dered to the passenger, he could not recover for such services.

-Bowsher v. C. B. & Q. R. R. Co., 16.

Witnesses - See 8 ante.
EXAMINATION OF PERSON—See BREACH OF PROM., ?.
EXCEPTIONS-See APPEAL, 15, 16, "?; ESTATES OF DECED., 8.

Small figures refer to subdivisions of Index.

The others to page of report.

ΤΟ.

EXECU

FACTORS
EXECUTIONS.
1. Levy on Corporate Stock- NOTICE OF LEVY—Notice of Sale-

Under Code, sections 3894, 3974, providing that corporate stock
may be levied on under execution by notifying the president,
etc., that the stock has been levied upon, a notice to such
officer is a part of the levy, and sufficient, though it is in
the past tense, and being served in all interested. also
answers as the statutory notice of sale.-Croft v. Colfax

E. L. & P. Co., 455.
2. SAME-When Informal Levy Sufficient-Code, sections 3894.

3974, requiring corporate stock to be levied on under exe-
cution by notifying an officer of the corporation, etr., does not
apply to special execution in foreclosure of a pledge of stock
in the possession of the judgment debtor, but the sale passes
title as against a judgment debtor, who does not question
the proceedings until after the sale, though no formal levy

was actually made.--Idem.
3. Mortgage by Wife-- Rights of Execution Sale Purchaser-

Where the title to real estate is in the husband, but the wife
is the beneficial owner, a purchaser thereof at an erecution
sale under a judgment against a husband, who knows the
interest of the wife therein, cannot enjoin foreclosure sale
under a prior mortgage thereon given by the wife.-Bush

v. Herring, 158.
4. RightS OF EQUITABLE OWNER—Where a title to real estate

is held by a husband, but the beneficial interest is in the wife.
the sale thereof, under an execution against the husband,
to the judgment debtor of the latter, who has notice of the
interest of the wife, conveys no title as against the wife

and her grantee.-Idem.
EXECUTORS–See Estates OF DECED.. .
EXPERTS–See DFCEIT. 6: FviD.. 20. 21, ??, ?4; Wills, 5.
EXPERT AND OPINION EVIDENCE-See BOUNDARIES, “; Rail , %.

FACTORS.
1. Conditional Sale To-- Where goods are consigned to a factor

to be sold and accounted for by him as provided by a written
contract. stipulating that he shall buy at a fixed price all
goods remaining unsold on a certain date and that the title
shall not vest in him until the purchase price shall be paid
in full, the goods remaining unsold after said date are held
by him as owner under a conditional sale, and not as ageat.

-Norton v. Fisher, 595.
2. Mortgage of Factor- RIGHTS AGAINST CorsigxOR-His mort.

gagee for value, without notice, after such date, is entitled

to such goods against the consignor.-Idem.
3. Sales on Credit- IMPLIEN POWER TO MAKE-In the absence of

instructions or usage to the contrary, a factor has implied
power to sell the goods of his principal on a reasonable
credit, provided he exercised due care with respect to the
responsibility of the purchaser and in collection of the price.
-Walker v. Dubuque Fruit Co., 428.

Small øgures refer to subdivisions of Index. The others to page of report.

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