For compensation of attorney, see Attorney and Client, 166.

For compensation of broker, see Brokers, §§ 85, 86.

For delay in transportation or delivery of goods, see Carriers, § 104.

For delay in transportation or delivery of live stock, see Carriers, § 228.

§ 43. In an action on an indemnifying bond. court held not entitled to take judicial notice of statement in petition in attachment suit as to residence of defendant.-Constantine v. Rowland (Iowa) 189.

II. PRESUMPTIONS.

For fraud, see Fraud, §§ 50, 57.

For injunction, see Injunction, § 127.

For injuries at railroad crossings, see Railroads, § 347.

For injuries by servants, see Master and Servant, $330.

309.

As to particular facts or issues. See Alteration of Instruments, § 27; Boundaries, § 33.

Constitutionality of statutes, see Constitutional Law, § 48.

For injuries from negligent or wrongful use of street, see Municipal Corporations, § 706. For injuries from sale of liquor, see Intoxicating Liquors, § 309.

For injuries to passengers, see Carriers, § 318. For injuries to persons on or near street railroad tracks, see Street Railroads, §§ 113, 114. For injuries to servants, see Master and Servant, §§ 265-281.

For libel or slander, see Libel and Slander, 88 101-110.

For loss of or injury to live stock in course of transportation, see Carriers, § 228.

For price or value of goods sold, see Sales, § 359.

For unpaid taxes, see Taxation, § 593.

On bills or notes, see Bills and Notes, §§ 492

525.

On contract of suretyship, see Principal and Surety, 159.

On insurance policy, see Insurance, § 651. Probate proceedings and actions relating to wills or probate, see Wills, §§ 289, 297. To anul marriage for fraud, see Marriage, § 60. To determine and establish rights of mortgagor's creditors, see Chattel Mortgages, § 201. To enforce mechanic's lien, see Mechanics' Liens, §§ 279, 281.

To enforce specific performance, see Specific Performance, § 121.

To establish boundaries, see Boundaries, §§ 33, 36.

To reform written instrument, see Reformation of Instruments, §§ 43, 45.

In criminal prosecutions.

See Criminal Law, §§ 309-531; Homicide, $8 163, 203; Larceny, § 50; Rape, §§ 36-54; Receiving Stolen Goods, § 8.

Bastardy proceedings, see Bastards, § 59. Violations of liquor laws, see Intoxicating Liquors, § 233.

Review and procedure thereon in appellate

see Mechanics' Liens, § 279.

Prejudice from error in trial court, see Appeal and Error, § 1031.

Validity of tax deed, see Taxation, § 788.
Validity of deed, see Deeds, § 196.

In particular civil actions or proceedings. For injuries to servants, see Master and Servant, § 265.

For libel or slander, see Libel and Slander, §

101.

To enforce mechanic's lien, see Mechanics' Liens, § 279.

To establish boundaries, see Boundaries, § 33.

$59. One is presumed to have heeded the instinct of self-preservation, so that it will not be presumed that assured voluntarily swallowed a fish bone.-Jenkins v. Hawkeye Commercial Men's Ass'n (Iowa) 199.

§ 67. It is not to be presumed that, because professional schools existed on a particular date, they existed a year anterior thereto.-Pierce v. Stolhand (Wis.) 259.

$87. A presumption will serve in the place of evidence, but should never be placed in the scale to be weighed as evidence.-Peters v. Lohr (S. D.) 853.

§ 89. Presumption that a person shown to be insane continued so held rebuttable.-Davis v. Davis (S. D.) 715.

60.

Fraud in transfer of property by mortgagor to mortgagee, see Mortgages, § 294.

Mistake as ground for reformation of contract, see Reformation of Instruments, § 43. Payment of debt secured by mortgage, see Mortgages, 319.

Prejudice from error in trial court, see Appeal Reliance upon false representations of seller, and Error, § 1032. see Sales, § 52.

Testamentary capacity, see Wills, § 52.

In particular civil actions or proceedings. See Mandamus, § 168.

By beneficiary against trustee, see Trusts, § 262. For breach of warranty of goods sold, see Sales, § 439.

For price of goods sold, see Sales, § 52.

On bills or notes, see Bills and Notes, $$ 492, 494.

On contract of suretyship, see Principal and Surety, § 159.

Probate proceedings and actions relating to wills or probate, see Wills, § 289.

To annul marriage for fraud, see Marriage, § 60. To assert invalidity of conveyance of homestead, see Homestead, § 122.

§ 96. Execution and delivery of a note sued on being admitted, the burden is on defendant to establish a counterclaim for money paid to plaintiff at the time of its execution, based on fraud and a want of consideration.-Pierce v. Stolhand (Wis.) 259.

IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL.

(A) Facts in Issue and Relevant to Issues. In criminal prosecutions, see Criminal Law, § 354.

§ 113. The amount of insurance on a building held not to be direct evidence of its value, but admissible in some cases as impeaching testimony of the insurance agent as to value.Holmes v. Rivers (Iowa) 801.

(B) Res Gestæ.

§ 123. In an action for injuries to a passenger, by starting the car before plaintiff had time to alight, evidence that the conductor stated at the time that he "thought they were off" is admissible as res gestæ.-Reese v. Detroit United Ry. (Mich.) 539.

127. Complaints of existing pain made by an injured person long after the injury held admissible.-Duffey v. Consolidated Block Coal Co. (Iowa) 609.

(C) Similar Facts and Transactions. Other offenses, see Criminal Law, §§ 369-372. (E) Competency.

In criminal prosecutions, see Criminal Law, § 393.

V. BEST AND SECONDARY EVIDENCE. In criminal prosecutions, see Criminal Law, § Review of determination of question of admissibility, see Appeal and Error, § 992.

401.

§ 183. Evidence held to establish a foundation for the admission of secondary evidence. Blaha v. Borgman (Wis.) 1047.

VII. ADMISSIONS.

(A) Nature, Form, and Incidents in General.

$207. Notice of personal injuries under St. 1898, § 4222, subd. 5, held an admission as to extent thereof.-Berger v. Abel & Bach Co. (Wis.) 410.

(B) By Parties or Others Interested in Event.

§ 222. Declarations of a legatee prior to the making of a will are inadmissible on an issue as to its validity.-Casad v. Ripley (Iowa) 196. (E) Proof and Effect. Effect of admissions on trial as relieving adverse party from necessity of offering proof, see Trial, 8 36.

VIII. DECLARATIONS.

By testator as to execution or revocation of will, see Wills, § 297.

eral.

§ 271. Letters amounting only to self-serving declarations of the agent of the party seeking to introduce them are not admissible.-Dillivan v. German Sav. Bank (Iowa) 350.

§ 271. A letter written by plaintiff to its agent, not communicated to defendant, held inadmissible in evidence against defendant.Northwestern Fuel Co. v. Central Lumber & Coal Co. (Minn.) 981.

(A) Public or Official Acts, Proceedings, Records, and Certificates.

§ 333. Under Pol. Code, §§ 866-873, inclusive, registry fee book kept by another register of deeds held inadmissible to show to whom a deed was returned when recorded.-Davis v. Davis (S. D.) 715.

§ 336. Under St. 1898, § 4156, the record of a deed held properly admitted in evidence.Blaha v. Borgman (Wis.) 1047.

337. Under Comp. Laws 1897, § 10,193, the official records of the action of the council of a city, in ordering changes in theaters to render them safe to the public, held admissible in evidence.-Norris v. McFadden (Mich.) 54. (B) Exemplifications,

Transcripts,

Certified Copies.

and

§ 348. Omission of the words "that the attestation is in due form," required by Code Civ. Proc. § 529, from the certificate of the judge to the record of a foreign judgment, held supplied by certain other statement.-Davis v. Davis (S. D.) 715.

§ 348. Certificate of judge on record of action in another state held not limited to the certificate of the clerk to the journal entry, but to apply to the prior certificates of the clerk upon the petition, answer, and reply.-Davis v. Davis (S. D.) 715.

(C) Private Writings and Publications. § 359. In an injury action by a servant, certain photographs of the place of injury held admissible.-Forseth v. Iron River Lumber Co. (Wis.) 1036.

§ 364. Where decedent contributed to the support of his parents, the mortality and annuity tables might be used in determining the measure of damages for his death, but not as the basis of a computation in fixing the damages at the amount of the probable pecuniary loss to the parents.-Hackett v. Wisconsin Cent. Ry. Co. (Wis.) 1018.

(D) Production, Authentication, and Ef

fect.

§ 378. A letter held properly identified as that of certain person and properly admitted.-Tilden v. Smith (S. D.) 841.

§ 382. The question whether a sufficient foundation for admission of documentary evi

dence is laid is addressed to the discretion of the trial court.-O. N. Bull Remedy Co. v. Boyer (Minn.) 20.

XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. (A) Contradicting, Varying, or Adding to Terms of Written Instrument.

§ 419. Parol evidence is competent to show the actual consideration for deeds of land where the rights of innocent purchasers for a valuable consideration are not involved.-Ruch v. Ruch (Mich.) 52.

§ 419. Parol evidence that a note sued on was given for the accommodation of the payee is not objectionable as varying or contradicting the written contract.-National Citizens' Bank of Mankato v. Bowen (Minn.) 241.

§ 424. In an action against a carrier for loss of a horse, plaintiff held entitled to introduce oral evidence of his contract with defendant.Cox v. American Express Co. (Iowa) 202.

§ 424. Where the controversy is between a party to a written contract and one who is neither a party nor a privy to it, parol evidence tending to vary it is admissible.-Heisler Pumping Engine Co. v. Baum (Neb.) 916.

(B) Invalidating Written Instrument. § 431. Evidence to show that an instrument, though signed was never in fact delivered, held not within prohibition of parol evidence varying written contract.-Koester v. Northwestern Port Huron Co. (S. D.) 740.

§ 432. While parol evidence is admissible to show that the consideration for a deed was either greater, less, or different from that expressed, it is inadmissible to show that there was no consideration, in the absence of fraud or mistake.-Maxwell v. McCall (Iowa) 760. (C) Separate or Subsequent Oral Agree

ment.

§ 441. Parol evidence held inadmissible to show that the purchaser of land assumed and agreed to pay the mortgage debt as part of the consideration for the land.-Dillivan v. German Sav. Bank (Iowa.) 350.

§ 441. The vendor of land may show by parol that the crops were reserved on the sale of the land.-Cooper v. Kennedy (Neb.) 1131.

§ 441. Parol evidence that the buyer should only be required to pay for so much of the goods as he sold and might return the balance held inadmissible, where the contract provided for payment at a specified date.-Ady v. Barnett (Wis.) 1061.

8 445. An agreement between a landlord and tenant that the latter's holding over shall be on different terms or for a different period may be proved by parol.-Waterman v. Le Sage (Wis.) 1041.

(D) Construction or Application of Language of Written instrument.

§ 450. A deed held sufficiently ambiguous to warrant the admission of extraneous evidence showing the circumstances surrounding the parties when it was executed.-In re Barkhausen (Wis.) 649.

§ 457. The rule as to the necessity of determining the meaning of technical expressions by proof of usage stated.-A. M. Dillow & Co. v. City of Monticello (Iowa) 186.

$460. Though a chattel mortgage fails to state that the property covered thereby is the property of the mortgagors or in their possession, parol evidence is competent to show that it is the identical property levied on.-Peppers v. Harris (Iowa) 625.

§ 471. A witness may testify that a person is conscious, since it is not a conclusion, but the observation of the witness. In re Murray's Estate (Iowa) 193.

§ 471. It is error to overrule an objection to a question calling for an opinion of a witness not pertinent to any issue in the case.-White v. Chicago & N. W. Ry. Co. (Iowa) 309.

$483. Opinion of a witness held inadmissi ble.-Winkler v. Power & Mining Machinery Co. (Wis.) 273.

(B) Subjects of Expert Testimony. $507. When expert evidence is directed to ordinary phenomena easily observable by any person of ordinary intelligence, it is unnecessary and improper.-Ladwig v. Jefferson Ice Co. (Wis.) 407.

§ 513. Under St. 1898, § 1862, and under the franchise of a street railway company, the testimony of an expert as to the proper equip ment of street cars held competent as against the company.-Fisher v. Waupaca Electric Light & Ry. Co. (Wis.) 1005.

(C) Competency of Experts.

§ 543. Witness held competent to testify on the market value of horses.-Berry v. Chicago, M. & St. P. Ry. Co. (S. D.) 859.

(F) Effect of Opinion Evidence. ion of experts so far as they clash with common $574. Weight should not be given the opinknowledge or ordinary observation of simple implements.-Ladwig v. Jefferson Ice Co. (Wis.)

407.

XIV. WEIGHT AND SUFFICIENCY. Credibility, impeachment, contradiction, and corroboration of witnesses, see Witnesses. §§ 344-383.

Effect of tax deeds as evidence, see Taxation, § 788.

Instructions as to weight and sufficiency, see Trial, §§ 236, 237.

Questions for jury, see Trial, §§ 140, 142. Review as dependent on presentation of question in record, see Appeal and Error, $ 695. Scope and extent of review, see Appeal and Error, 88 989-1012.

As to particular facts or issues. See Alteration of Instruments, § 29; Novation, § 12; Partition, § 63. Authority of agent, see Principal and Agent, § Cancellation of insurance policy, see Insurance, § 235.

123.

Consideration of assignment of savings bank account, see Banks and Banking, § 301. Contract for private railroad crossing, see Railroads, 102.

Contributory negligence of servant injured, see Master and Servant, § 281.