surveyed, and platted the city of Lincoln, are not competent evidence to prove the purpose for which the reservation of a block was made. This could be proved only by the plat and report of the commissioners, together with the act of the legislature confirming them. State Historical Ass'n v. City of Lincoln, 14 Neb. 336 (15 N. W. 717).

153. (1883.) A statement of a sheriff that an attachment has not been levied on certain goods is not the best evidence of that fact. Harrison v. Baker, 15 Neb. 43 (14 N. W. 541).

154. (1894.) A memorandum book kept by the manager of a brick yard and containing the signature of an employee to receipts for brick received and hauled by him is not admissible to show that such employee was laboring at the time, the statements of those who saw him being the best evidence. Omaha & R. V. R. Co. v. Brady, 39 Neb. 27 (57 N. W. 767).

155. (1900.) Blue prints of architectural plans offered are not subject to the objection that they are not the best evidence. School District v. Fiske, 61 Neb. 3 (84 N. W. 401).

156. (1901.) An agreement of accord and satisfaction, which has been performed, between a county board representing the county and those having claims against the county, may be proven by parol evidence in the absence of any written record or minutes of the county board of such agreement. Green v. Lancaster County, 61 Neb. 473 (85 N. W. 439).

157. (1903.) Where the record of a deed is primary evidence, by virtue of section 13, chapter 73, Compiled Statutes, the rule that there are no degrees of secondary evidence does not apply. Staunchfield v. Jeutter, 4 Unof. 847 (96 S. W. 642).

Fact of existence of writing. 158.

(1888.) The rule as to proof of written instruments and records does not preclude that of oral testimony of the existence of such instruments and records, preliminary to their introduction or proof of loss. Village of Ponca v. Crawford, 23 Neb. 662 (37 N. W. 609; 8 Am. St. Rep. 144).

Laws of other states.

159. (1905.) The unwritten law of another state may be proved by parol evidence Rieck v. Griffen, 74 Neb. 102 (103 N. W 1061).

160. (1907.) The statute and constitu-.

tion of another state or territory cannot be proved by parol, under the provisions of sec tion 396 of the code. Cook v. Chicago, R. I. & P. R. Co., 78 Neb. 64 (110 N. W. 718). Municipal ordinances.

161.

(1898.) Where a party desires to prove the existence of an ordinance of a city of the metropolitan class he may pursue the method pointed out by section 124 of the code, or he may resort to the common law method of proof. Johnson v. Finley, 54 Neb. 733 (74 N. W. 1080).

Ownership of property.

162. (1899.) It is competent to prove the ownership of a store building by parol evi dence when it does not appear that such building is real estate. Knights v. State, 55 Neb. 225 (78 N. W. 508; 76 Am. St. Rep 78).

Existence and contents of records.

163. (1891.) Where papers in a case have been lost, as the license to sell real estate. proof that such license or other papers a tually existed at the time of the sale ma be shown by parol or other secondary evidence. Keller v. Amos, 31 Neb. 438 (48 N. W. 59).

164. (1896.) Where the files of a case have been lost,-such as papers in an attachment proceeding,-that such papers existed. and their contents, may be proved by parol, the proper foundation having been laid for the introduction of secondary evidence Regier v. Shreck, 47 Neb. 667 (66 N. W 618).

165. (1896.) A certified transcript of the record of a deed may, under section 13, chapter 73, Compiled Statutes, be read in eridence when the original is lost or not within the control of the party offering the proof Thams v. Sharp, 49 Neb. 237 (68 N. W. 474) Contents of by-laws of corporation.

166. (1894) In an action against a building and loan association to recover pay ments on shares of stock, parol evidence of the contents of the by-laws of the association is not admissible. American Bldg. & Loc Ass'n v. Mordock, 39 Neb. 413 (58 N W. 107).

Contents of notices.

167. (1890.) Testimony as to the cottents of a publication of a notice is inadmis sible since it is not the best evidence. Sahs bury v. Iddings, 29 Neb. 736 (46 N. W. 267)

Deeds and conveyances. See, also, Deeds, IV.

168. (1888.) The question of permitting the introduction of records to prove the title of the plaintiff in an action for injury to crops and to the land itself, instead of requiring the production of the original evidence of title, rests to a great extent in the discretion of the trial court, and unless there is a clear abuse of that discretion error will not lie. Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 138 (40 N. W. 948; 13 Am. St. Rep. 482).

169. (1889.) Under the provisions of section 13 of chapter 73, Compiled Statutes 1887, the record of a deed duly recorded, or a transcript thereof duly certified, may be read in evidence with like force and effect as the original deed whenever, by the party's oath or otherwise, the original is known to be lost, or not belonging to the party seeking to use it, nor within his control; and therefore, in an action in ejectment, where the defendant seeks to prove title in a stranger as a defense, and it sufficiently appears that the original deed does not belong to him, a copy of the record will be competent evidence in the first instance, without proof of the loss of the original, or that it is not under the control of the party seeking to use it. Buck v. Gage, 27 Neb. 306 (43 N. W. 110).

170. (1903.) The record of a deed may be shown without inquiry as to the original whenever the evidence as a whole fairly indicates that the original is not in the possession or under the control of the party offering such proof. Staunchfield v..Jeutter, 4 Unof. 847 (96 N. W. 642).

Contents of private memoranda and writings.

171. (1896.) In an action on a subscription contract, parol evidence may be admitted to prove the contents of the subscription book after proof of its loss, though similar books not offered in evidence are in existence. Rawlings v. Young Men's Christian Ass'n, 48 Neb. 216 (66 N. W. 1124).

172. (1896.) An objection to a question calling for the contents of books, held properly sustained. Columbia Nat. Bank v. Rice & Co., 48 Neb. 428 (67 N. W. 165).

173. (1898.) In absence of fraud, mistake, or ambiguity the writing signed by the parties constitutes the best and only competent evidence of the contract originally niade. State Bank of Ceresco v. Belk, 56 Neb. 710 (77 N; W. 58).

174. (1901.) A writing is the best evidence of what it contains. Peterson v. State, 63 Neb. 251 (88 N. W. 549).

175. (1904.) Where the question in issue was whether or not drafts had been paid for when issued, it is incompetent for an ascountant, who had examined the books of the bank, to testify as to what the books showed in that regard. The books themselves are the best evidence. Mendel v. Boyd, 71 Neb. 657 (99 N. W. 493).

176. (1904.) An acknowledgment, by a husband and wife, of an instrument conveying a homestead, or placing an incumbrance thereon, should appear from the instrument itself in the form of a certificate of the officer before whom the acknowledgment was taken, and, in the absence of such certificate, it is not competent to show by parol that the instrument was in fact acknowledged. Solt v. Anderson, 71 Neb. 826 (99 N. W. 678).

Preliminaries to admission of secondary evidence.

177.

Proof as to existence or availability of primary evidence.

(1877.) To establish the existence of a grade for a street in a city the records and files pertaining thereto should be produced; and unless these be shown to be either lost or destroyed, secondary evidence will not be received. Nebraska City v. Lampkins, 6 Neb. 27.

178. (1878.) Where defendant offered parol testimony as to the contents of certain letters, proof that the agent of plaintiff produced the letters in another case, leaving them in the court where that trial took place, and never saw them afterward, and testimony of the judge of that court that the letters were produced in that trial, and that they were not returned to the witness, and that he had examined the files in the case and could not find the letters, was sufficient proof to let in the secondary evidence. Russell v. Wohlers, 7 Neb. 466.

179. (1880.) A letter-press copy of a letter cannot be read in evidence without first proof of the loss or non-possession of the original. Delaney v. Errickson, 10 Neb. 492 (6 N. W. 600; 35 Am. St. Rep. 487); (1883) Ward v. Beals, 14 Neb. 114 (15 N. W. 353); (1898) Westinghouse Co. v. Tilden, 56 Neb. 129 (76 N. W. 416).

180. (1883.) Where a paper is shown to have been destroyed, it is not necessary to prove that it has been searched for as a

foundation for the introduction of parol testimony of its contents. Hawley v. Robeson, 14 Neb. 435 (16 N. W. 438).

181. (1884.) On the question whether there is sufficient proof of the loss of a letter to render admissible secondary evidence of its contents, a wide discretion is left to the trial court. Hapgood Plow Co. v. Martin, 16 Neb. 27 (19 N. W. 512).

182. (1886.) Where it is sought to prove by a member of a law firm after its dissolution that he has made search for certain instruments sent to the firm and that he cannot find them, in order to admit secondary evidence of their contents it must be made to appear that he retained the possessicn of the same, and that search was made in such places as the instruments, if in existence, in all probability would be found. Post v. School District No. 10, 19 Neb. 135 (26 N. W. 911).

183. (1886.) Before secondary evidence is admissible to prove the existence of contents of a paper claimed to have been attached to and a part of the files of a case in court, it must appear that diligent search has been made in the proper office for such paper, and that it is lost or destroyed and cannot be found. Murphy v. Lyons, 19 Neb. 689 (28 N. W. 328).

184. (1888.) In an action in ejectment it was stipulated between the parties that certified copies of the record of deeds should be used in evidence without proof of the loss of the originals, and that such copies contained all that the originals contained. Plaintiff offered in evidence a certified copy of a deed executed by the Lincoln Land Association, a corporation, which was objected to for the reason that the copy did not show that the original deed was under the seal of the corLoration, that is, that no impression of the seal was thereon. The objection was overruled, and the copy admitted. Held, Correct, it being recited in the deed that the seal of Colvin the corporation was thereto affixed. v. Republican Valley Land Ass'n, 23 Neb. 75 (36 N. W. 361; 8 Am. St. Rep. 114).

185. (1888.) Proof of the contents of certain letters is not admissible without showing a loss or destruction of such letters. McClure v. Campbell, 25 Neb. 57 (40 N. W. 595).

186. (1890.) Before a copy of a letter is introduced in evidence, over objection, it should be shown that the original cannot be produced. Watson v. Roode, 30 Neb. 264 (46 N. W. 491).

187. (1890.) Before the contents of a written instrument can be established by oral testimony, the loss of the instrument must be accounted for. Meyers v. Bealer, 30 Neb. 280 (46 N. W. 479); (1896) Demp ster Mill Mfg. Co. v. First Nat. Bank of Holdrege, 49 Neb. 321 (68 N. W. 477).

188. (1890.) Where the order of allow ance to a bill of exceptions made by the trial judge has become detached and lost after the bill was filed in the trial court, but b fore its filing in the supreme court, a certificate of the clerk of the district court that the bill, together with the order, was filed i his office, that by some means unknown the became separated, and that he has made di gent and ineffectual search for the order, is sufficient to admit secondary evidence of the contents of the order. Warren v. Brown, 31 Neb. 8 (47 N. W. 633).

189. (1892.) One who has assisted in searching in the office of the county clerk. under the direction of the latter, for a deer left therein for record is a competent wit ness to prove the loss of such deed in order to lay a foundation for secondary evidence thereof. It is not necessary in such case to call the clerk in order to establish the loss of the deed prima facie. Buchanan v. Wise, 34 Neb. 695 (52 N. W. 163).

190. (1894.) One who has made an ex amination of the office or books where a record should be found, and shows sufficient knowledge of the subject, is competent te testify to the non-existence of the record. Gutta Percha & Rubber Mfg. Co. v. Village of Ogallala, 40 Neb. 775 (59 N. W. 513; 42 Am. St. Rep. 696).

191. (1894.) Proof that the charter of an association has been destroyed by fire is sufficient to authorize testimony of the se retary of such association as to its contents. Phenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 21 (59 N. W. 752).

192. (1895.) Courts have not attemred to define the precise degree of diligence essential in attempting to procure the pri mary evidence of a material fact in order to establish the foundation for secondary e dence. But it is sufficient, as a rule, if the party offering such proof has exhausted a the sources and means of discovery wish the nature of the case would suggest, and which are accessible to him. Baldrin t Burt, 43 Neb. 245 (61 N. W. 601).

193. (1895.) Evidence examined, and held that a sufficient foundation had bee

established for the admission of secondary evidence of the mortgage alleged in petition. Baldwin v. Burt, 43 Neb. 245 (61 N. W. 601). 194. (1895.) The existence of a record must be proved by its production or by an authenticated copy. The non-existence of a record may be proved by the oath of any one who has made a search therefor. Smith v. First Nat. Bank of Chadron, 45 Neb. 444 (63 N. W. 796).

195. (1896.) In an action to set aside a sale of a stock of goods as fraudulent, the admission of parol testimony as to the bill of sale is erroneous, where the absence of the bill itself is not accounted for. Dempster Mill Mfg. Co. v. First Nat. Bank of Holdrege, 49 Neb. 321 (68 N. W. 477).

196. (1901.) Before secondary evidence can be introduced as to the contents of a private instrument, there must be some evidence that the paper once existed and that a bona fide and diligent search has been unsuccessfully made for it in the place where it is most likely to be found. Samuelson v. Gale Mfg. Co., 1 Unof. 815 (95 N. W. 809). 197. (1901.) Before the contents of a lost letter can be introduced in evidence there must be testimony of its loss and also testimony tending to prove the handwriting, or that it came from the alleged writer or his authorized agent, or was received in due course of mail in answer to letters previously mailed to the address of the alleged writer. Whitwell v. Johnson, 2 Unof. 66 (96 N. W. 272).

198. (1901.) Evidence examined, and held not to be sufficient identification to permit the contents of the letter to be received in evidence. Whitwell v. Johnson, 2 Unof. 66 (96 N. W. 272).

199. (1903.) When the loss or destruction of a written instrument is shown, secondary evidence of its contents is admissible. Larson v. Cox, 68 Neb. 44 (93 N. W. 1611).

200. (1903.) Ordinarily, to justify the reception of a copy of a private writing in evidence, it must appear that it is a true copy of some writing, admissible in evidence, which has been lost or destroyed, or which is in the possession of the adverse party, who refuses to produce it on due notice. Peycke v. Shinn, 68 Neb. 343 (94 N. W. 135).

Demand or notice to produce primary evidence.

201. (1877.) Where a defense to an action on a promissory note is a breach of a

warranty in the sale of a threshing m chine, and such written warranty was le.: with the plaintiff, the defendants cannot introduce parol evidence to show what the contract was, without first taking the necessary steps to require plaintif to produce the written contract. Birdsall v. Ccrter, 5 Neb. 517.

202. (1890.) While the better practice is to serve notice on adverse party to prsduce private writings in his possession before evidence can be given of their contents, notice may be dispensed with on proof that such party has stated that the writings are lost. Barmby v. Plummer, 29 Neb. 64 (45 N. W. 277).

VI. DEMONSTRATIVE EVIDENCE. Examination of person of injured party out of court, see Damages, §§ 142-146. View by jury, see Trial, §§ 55-60, 683, 684. In general.

203. (1904.) It is not error to permit the plaintiff, although crippled, to walk to the witness stand in the presence of the jury. City of Minden v. Vedene, 72 Neb. 657 (101 N. W. 330).

Exhibition of person to jury.

204. (1898.) In an action for personal injuries the right of plaintiff to exhibit an injured limb should not be denied on the ground that she is young, handsome, and attractive, and consequently that the sympathies of a jury composed of men would be unduly excited in her behalf. Omaha Street R. Co. v. Emminger, 57 Neb. 240 (77 N. W. 675).

205. (1902.) In an action for personal injuries it is not error to permit the plaintiff to exhibit the injured member to the jury after the introduction of evidence to the effect that it was permanently injured as and in the manner alleged in the petition, and that its condition at the time exhibited was wholly due to such injury. City of Crete v. Hendricks, 2 Unof. 847 (90 N. W. 215).

206. (1904.) In an action for personal injury it is not error to permit plaintiff to exhibit his injured limb to the jury. Chicago, B. & Q. R. Co. v. Krayenbuhl, 70 Neb. 766 (98 N. W. 44).

207. (1904.) Although a plaintiff in an action to recover damages for personal injuries may be permitted to show his wounds and contusions to the jury, it may be reversible error to permit a dramatic exhibi

tion by him in the presence of the jury as a demonstration of the extent of his physical disabilities Felsch v. Babb, 72 Neb. 736 (101 N. W. 1011).

Experiments.

208 (1903.) Proof of an experiment, without establishing the fact that the person who made the experiment is competent to do so, and that the apparatus used was of the kind and in a condition suitable for the experiment, and that it was honestly and fairly made, is without probative force. Omaha Street R. Co. u. Larson, 70 Neb. 591 (97 N. W. 824).

Writings submitted for comparison.

209. (1881.) Defendant having denied the genuineness of the promissory note on which the action was brought, called his son as a witness, who testified in chief that certain words in the note which his father actually gave were written by himself. On cross-examination he was required to write the same words in the presence of the jury, for their inspection and comparison with the note in controversy. Held, Competent evidence and cross-examination. Huff v. Nims, 11 Neb. 363 (9 N. W. 548).

210. (1890.) Under section 344 of the code, school orders drawn by a party as treasurer are admissible to afford comparison of handwriting with the signature of a note which he denies having executed. Grand Island Banking Co. v. Shoemaker, 31 Neb. 124 (47 N. W. 696).

211. (1896.) Under section 344 of the code, the genuineness of handwriting may be determined by comparing the disputed writing with that proved to be genuine. Such genuine writings upon proof should be admitted in evidence for the purpose of permitting the jury as well as experts to make the necessary comparison. First Nat. ank of Madison v. Carson, 48 Neb. 763 (67 N. W. 779).

212. (1901.) If writings offered as evience of handwriting are admitted by a party to be his, but he claims that their form is the result of duress or fraud, the proper course is to show such fact for the purpose of affecting their weight. Schmuck v. Hill, 2 Unof. 79 (96 N. W. 158).

VII. ADMISSIONS.

A. Nature and Incidents in General. Pleadings.

213. (1886.) When a cause is being tried upon an issue formed by an amended

petition, answer, and reply, the original petition, if inconsistent with the amended petition, is competent evidence for the parpose of proving admissions inconsistent with the claim and testimony of plaintif upon trial. Bunz v. Cornelius, 19 Ne), 197 (26 N. W. 621).

214. (1896.) No proper foundation hav ing been laid for its introduction, a bill cf particulars filed in a justice court is properly excluded, in an action by an agent for compensation for selling a threshing machine, which instrument showed plaintif claimed less than in the present trial. Aul man v. Martin, 49 Neb. 103 (68 N. W. 340)

215. (1899.) Admissions made by a liti gant in his pleading in a suit are competent evidence against those who subsequently come into the suit as his successors in interest to the matter in litigation. Miller v. Nicodemus, 58 Neb. 352 (78 N. W. 618).

216. (1899.) When a litigant files at amended pleading, the averments of which are inconsistent with the averments of his original pleading, the original is eviden in the case as an admission of the litigant contrary to his claim in the amended pleading but is not conclusive. Miller v. Nicodemus, 58 Neb. 352 (78 N. W. 618).

217. (1899.) Pleadings may be received in evidence in suits, other than those it which they were filed, as admissions or declarations against interest. Parton r State, 59 Neb. 460 (81 N. W. 383; 80 Am. St. Rep. 689).

218. (1899.) Pleadings, when not signel or verified by the party himself, are received in evidence only upon actual or presumptive proof that the admissions which they contain were either made by his direction or were afterwards sanctioned by him. Paxton v. State, 59 Neb. 460 (81 N. W. 383: 80 Am. St. Rep. 689).

219. (1900) Pleadings may be introduced as evidence in actions other than those wherein they were filed, as admissions against interest. Parton v. State, 60 Neb. 763 (84 N. W. 254).

220. (1903.) It is not reversible error to refuse to allow a defendant to introduce in evidence plaintiff's original petition. where there is no substantial difference in the statement of the facts contained therein. and in the one on which the suit is tried. School District of Omaha v. McDonald, 68 Neb. 610 (94 N. W. 829).

221. (1904 ) A plea of guilty entered