Reception of evidence.

Error in striking out parts of answer, see Pleading, 5.

Curing error in admission or exclusion of, see Appeal and Error, 18, 19. 1. Rejection of evidence on the subject of insurance rates, in a proceeding to assess damages for the exercise of the right of eminent domain, is not error where the property owner expressly disclaims a right to recover for increased fire risk. Boyne City, G. & A. R. Co. v. Anderson, 8: 306, 109 N. W. 429, Mich.

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2. The court may, in the exercise of its discretion, conditionally receive evidence apparently incompetent because its relevancy is not apparent, or because it is not the best evidence, if counsel gives assurance that he will supply the necessary foundation afterward. Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94.

3. If evidence which is apparently in competent or not the best evidence is conditionally received on the assurance of counsel that he will supply the necessary foundation afterward, the court should, on his failure to introduce the necessary connecting evidence to show the relevancy of the admitted evidence, exclude the latter on its own motion, or, if the failure to connect is not apparent or glaring, the objecting party should move to exclude it.

Pittman v. State, 8: 509, 41 So. 385, 51 Fla. 94.

4. The court, after reopening the case upon the application of one of the parties, for the purpose of allowing certain evidence on a particular point to be introduced, is not compelled to reopen it for the introduction of evidence generally. Bridger v. Exchange Bank, 8: 463, 56 S. E. 97, 126 Ga. 821.

5. After both parties to a case on trial have announced the evidence closed, and a motion for the direction of a verdict has been argued, it rests in the sound discretion of the judge to determine whether he will permit the case to be reopened for the introduction of further evidence. Bridger v. Exchange Bank, 8: 463, 56 S. E. 97, 126 Ga. 821.

Remarks of court.

6. The judge cannot be regarded as ex

Sufficiency of evidence to go to jury.

7. Evidence of persons present at a railroad crossing and listening for signals, that the bell of an approaching locomotive was not rung, although negative in form. has probative value sufficient to take the issue to the jury, where other witnesses testify that the bell did ring. Cotton v. Willmar & S. F. R. Co. 8: 643, 109 N. W. 835, 99 Minn. 366.

Questions of law and fact.

8. The question of suicide of one found cumstances which might have been accidenthanging to a strap in his barn under ciral is for the jury, although such an accident may never have occurred before, where there is no evidence that decedent's circumstances were such as to drive him to desperation. Tackman v. Brotherhood of A. Y. 8: 974, 106 N. W. 350, Iowa, -.

9. The questions whether real property levied upon is reasonably capable of subdivision, and whether the levy is excessive, are for the jury, where it appears that the extends back 200 feet to an alley which property fronts 55 feet on a street, and gives an outlet to another street a short distance away, and there are houses on the lot fronting on the public street, separately numbered, while on the rear of the lot there are three dwelling houses, each of which rents separately, and there is testimony as to the value of the property and the amount unpaid upon the encumbrance upon it. Bridger v. Exchange Bank, 8: 463, 56 S. E. 97, 126 Ga. 821.

10. The question whether there was a regular, recognized street crossing at the point where one was injured by a trolley car while attempting to cross the street is for the jury, where the evidence is conflicting. Hayward v. North Jersey Street R. Co. (N. J. Err. & App.) 8: 1062, 65 Atl. 737, N. J. -.

11. Whether one struck by a trolley car running at a high rate of speed and without warning signals, while she was standing in the street awaiting the passage of a patrol wagon to which her attention was wholly drawn, was guilty of contributory negligence, is a question for the jury. Hayward v. North Jersey Street R. Co. (N. J. Err. & App.) 8: 1062, 65 Atl. 737,— N. J.

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12. The relation created by a written contract for construction work on a railroad track, between the parties thereto, is exclusively a question for the court. Good v. Johnson, 8: 896, 88 Pac. 439, Colo. -.

13. In the absence of any evidence tending to show bad faith in a subcontract for the construction of a railroad track, the question of bad faith should not be submitted to the jury in an action to hold the contractor liable for injuries to an employee

14. Failure of a thirteen-year-old boy to stop and reflect upon the danger of the proceeding before attempting to obey the sudden command of his foreman to remove threads caught in a moving cogwheel does not, as matter of law, render him guilty of negligence, where he does not put his hands upon the cogs, but grasps the threads, which, being too strong for him to break, draw his hand into the cogs. Dougherty v. Dobson, 8: 90, 63 Atl. 748, 214 Pa. 252.

15. The question of negligence in leaving in a street a team unattended, but hitched to a ground weight, the brakes on the wag on being set, so as to render the owner liable for injury to a bicycle, caused by their running away, is for the jury. Caughlin v. Campbell-Sell Baking Co. 8: 1001, 89 Pac. 53, Colo.

16. The contributory negligence of one struck by a train at a railroad crossing while riding across the track in a vehicle driven by another is a question for the jury, where, before going upon the track, both driver and passenger looked and listened, and the latter did not assume to control the actions of the driver, except by calling his attention to a headlight some distance away and in a direction opposite to that from which the train inflicting the injury approached. Cotton v. Willmar & S. Falls R. Co. 8:643, 109 N. W. 835, 99 Minn. 366.

17. Where the evidence is conflicting, the questions of assumption of risk and contributory negligence are for the jury, in an action against the master for negligent injuries to his servant. Johnson v. GriffithSprague Stevedoring Co. 8: 432, 88 Pac. 193. -Wash.

18. Whether a boy twelve years of age, employed as door tender at the entry of a mine, who was run over and killed by mine cars, was of such capacity as rendered him chargeable with contributory negligence, is a question for the jury. Bare v. Crane Creek Coal & C. Co. 8: 284, 55 S. E. 907, W. Va.

19. In an action to recover damages for personal injuries due to exposure alleged to have been caused by the negligence of the defendant, who sent the plaintiff, while in a fainting and helpless condition, away from his house, where he was by invitation, and he was found next morning nearly frozen to death at a point by the roadside where he had fallen from his cutter, the question of defendant's negligence should be submitted to the jury, where it appears that defendant knew that plaintiff was seriously ill, and that he was incapable of holding the reins to guide his team when he was placed in the cutter. Depue v. Flateau, 8: 485, 111 N. W. 1, Minn.

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20. Whether a person setting a fire on his own premises used such care, caution, and diligence as a prudent and reasonable man would have exercised under the circumstances to prevent damage to others is a

21. The question of waiver of proofs of loss should be submitted to the jury in an action on an insurance policy, where the ad juster of the company, after investigation informed the insured that the company would refuse to pay the loss on the ground that the policy had been assigned, and that the insured would have to deal directly with the company, which advised him that the matter was still in the hands of the adjuster. Allen v. Phoenix Assur. Co. 8: 903, 88 Idaho, -. Pac. 245,

Direction of verdict; nonsuit.

22. A motion for the direction of a ver dict is properly denied where the facts on the whole case as presented are impossible of reconciliation. Hayward v. North Jersey Street R. Co. (N. J. Err. & App.) 8: 1062, 65 Atl. 737, N. J. -.

23. When the evidence adduced by one of the parties to a civil action at law is sufficient to warrant a finding in his favor, and no evidence appreciably tending to overthrow the case so made has been adduced by the opposite party, it is the duty of the court to direct a verdict in favor of the former, if requested so to do. Kuykendall v. Fisher, 8: 94, 56 S. E. 48, W. Va.

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24. A verdict is improperly directed by the court in favor of the defendant, where the plaintiff has introduced evidence which would authorize the jury to find a verdict in her favor. Davis v. Albritton, 8: 820, 56 Ga. S. E. 514,

27. It is error for the trial court to grant a nonsuit in an action on an insurance policy, where the plaintiff makes a prima facie case establishing the fact of issuance and delivery of the policy and the payment of the premium thereon, the loss through and on account of the cause insured against, and the furnishing or notice and proofs to the insurer as required by the policy, or the waiver thereof on the part of the insurance company. Allen V. Phoenix Assur. Co. 8: 903, 88 Pac. 245, Idaho -.

28. In an action to recover damages for personal injuries caused by defendant's negligence, testimony of the plaintiff upon cross-examination, directly at variance with her testimony on direct examination and with the evidence of other witnesses called in her behalf, is not available upon a motion for a nonsuit and for the direction of a ver

WILLS.

Devise of house and lot to carry ease-
ment by implication, see Easements.
Relief against judgment of probate, see
Judgment, 8.

Power of equity to control discretion of

testamentary trustee, see Trusts, 2.

1. The whole rents and income of the estate belong to testator's widow during her widowhood, under a will giving her all testator's estate, to be used and managed by her for the mutual benefit of herself and "our children," upon condition that, should she marry, she should have only what the law allows a widow; expressly stating that this is not to be understood as any restriction upon her, and with the expressed desire that advances shall be made to the children as circumstances shall require, and, after her death, the estate which she may not have disposed of shall be equally divided among the children. Trout v. Pratt, 8: 398, 56 S. E. 165, Va. -.

2. Under a will directing the executors and trustees thereby created to sell the residuary real estate and divide the proceeds into parts to be paid to or held in trust for testator's children, and providing that, in the event of the death of any child before the payment to him of his share, the executors shall convey the share of the one so dying to his issue absolutely, and if he die leaving no issue then the share shall be divided among the survivors, the daughter of a child takes the parent's share in case of his death before the property is sold, the trustees acting in good faith, although he has, by will, disinherited her. March v. March, 8: 180, 78 N. E. 704, 186 N. Y. 99. (Annotated)

3. A provision in a will which, after devising the property in fee simple to one person, directs that upon her death all property undisposed of shall pass to others named, is void. Bernstein v. Bramble, 8: 1028, 99 S. W. 682, Ark. -.

WITNESSES.

Right of accused person to compulsory process for, at expense of county, see Criminal Law, 1-3. Competency to testify as to handwriting, see Evidence, 46. Competency of physician to testify, see Evidence, 48.

WRIT AND PROCESS. Service on corporations. Validity of statute authorizing personal judgment against foreign corporation upon service of summons upon auditor of state, see Constitutional Law, 19.

Sufficiency of service to sustain decree

pro confesso against corporation, see Judgment, 1.

Sufficiency of service to sustain judg ment against nonresident or foreign corporation, see Judgment, 2.

1. An agent of a foreign corporation, whose contract of agency demands of him the exercise of judgment in the business matters of his principal, and who has charge of the business of his principal in the territory covered by his contract is a managing agent within the meaning of Cobbey's (Neb.) Anno. Stat. 1903, §§ 1074, 1076, providing for the service of summons upon the managing agent of a foreign corporation. Ord Hardware Co. v. J. I. Case Threshing Mach. Co. 8: 770, 110 N. W. 551, Neb.

2. A citizen who has a cause of action against a foreign corporation, growing out of business transactions within the state may, under Cobbey's (Neb.) Anno. Stat. 1903, §§ 1074, 1076, have recourse to the courts of the state by the service of process upon the managing agent of such corporation. Ord Hardware Co. v. J. I. Case Threshing Mach. Co. 8: 770, 110 N. W. 551, Neb. Service by publication.

stituted service of process by publication 3. The legislature may provide for suband mail upon a resident of the state, in an action for tort, who cannot be personally served in the county where the suit is brought. Nelson v. Chicago, B. & Q. R. Co. 8: 1186, 80 N. E. 109, 225 Ill. 197.

4. That, under the chancery act, no per sonal judgment can be based on service of process by publication does not impose a like limitation in case of an action against a railroad company for personal injuries, although the statute provides that, in case of inability to obtain personal service in the county where the suit is brought, service may be made by publication "with like effect" as is provided in the chancery act. Nelson v. Chicago, B. & Q. R. Co. 8: 1186, 80 N. E. 109, 225 IN. 197.