Volume 1 — Indiana Appellate Court Reports

<p>Promissory Note. — Release of Surety. — One of two makers of a joint and several promissory note, governed by the law merchant, who is, in fact, a surety upon the note, but whose suretyship is not indicated in any way in the note, may avail himself of the statutory provisions, and by giving notice in accordance with section 1210, R. S. 1881, procure his discharge from liability on the note, if the holder thereof, to whom the note has been given, fail' to proceed within a reasonable time to bring his action thereon.</p> <p>Same. — Notice to Sue. — Seasonable Time. — Where the surety on a note gave proper notice to the payee, March 31, to sue thereon, the surety and the payee being residents of Hendricks county, and the principal debtor being a resident of Jefferson county, an action instituted on April 2d in the circuit court of Hendricks county, which did not commence its term until June 4th, was not brought within a reasonable time after the notice, it appearing that suit might have been brought in the circuit court of Jefferson county during a term pending when the notice was given.</p>

<p>From the Fountain Circuit Court.</p>

<p>From the Gibson Circuit Court.</p>

<p>Promissory Note. — Joint Makers. — Judgment Against One. — Release of the Other. — Where a judgment is rendered on a joint promissory note against one of two joint obligors, the other is thereby absolutely discharged, unless the plaintiff, in some legal way, saves his right to pursue the other also.</p> <p>Same.— Vacation of Judgment. — Revival of Inability. — But if such judgment is afterward set aside and vacated, the liability of both obligors is revived.</p> <p>Judgment. — Merger of Cause of Action. — Whether or not a cause of action is merged in a judgment depends on the question whether there is or is not a valid judgment. If the judgment is ineffective, or coram non judiee, or is reversed, or set aside, there can be no merger.</p>

<p>Factors and Brokers. — Town, Trustees. — Sale of Municipal Bonds. — Employment of Broker. — Town trustees are not required themselves to sell municipal bonds issued pursuant to the provisions of section 4488, B. S. 1881, but may employ a broker to make the sale.</p> <p>Same. — Contract of Employment. — Pleading.—Complaint.—The complaint in an action by the broker to recover for his services rendered in selling the bonds need not aver that the broker was employed by the trustees while they were in session; an averment that the town by its trustees engaged him to sell the bonds shows the employment was authorized. Same. — Parol Contract of Employment. — The contract of employment need not be in writing.</p> <p>Same. — Bonds.—Legality of Issue. — Pleading.—In an action by the broker for his services, it is unnecessary to aver that the bonds sold were legally issued.</p>

<p>From the Elkhart Circuit Court.</p>

<p>From the Warren Circuit Court.</p>

<p>Animals. — Running at Large. — Impounding.—Compliance with Statute. — One who relies upon section 2639, B. S. 1881, for his authority in impounding an animal found running at large, must show a strict compliance with the statute.</p> <p>Same. — Residence of Defendant. — Pleading.—Answer.—Insufficiency.—Tc an action of replevin an answer showing that when the answer was filed the defendant was a resident of the township in which the animals were taken up by him, but without showing that he was a resident of the township at the time of the taking up of the animals, is- insufficient.</p> <p>Same. — Retaking Possession after Commencement of Action of Replevin. — A retaking of possession by the plaintiff after the commencement of the action of replevin is no bar to the action.</p> <p>Same. — Section 2639, R. S. 1881, TJnrepealed. — Section 2639, E. S. 1881, is not repealed by the act of March 7,1887 (Acts 1887, p. 38), by which it is made the duty of road supervisors to cause certain specified domestic animals found running at large to be impounded.</p>

<p>From the Decatur Circuit Court.</p>

<p>From the Starke Circuit Court.</p>

<p>Judge. — Special Appointment. — Special Judge Non-Besident of Circuit.— Exceptions. — A judge appointed a special judge to try a cause, which appointment was made in open court by an order duly entered in the order-book, and in pursuance thereof such special judge qualified and filed his written oath with the clerk, which oath was also entered in the order-book, and the whole proceedings signed by the regular judge. Afterwards an appointment in due form was made out by the judge at his residence in an adjoining county and filed, and no objection was made to it at the time of filing.</p> <p>Held, that there was no error in the appointment of the special judge; that the fact that the special judge was a resident of another judicial circuit did not disqualify him from acting; that the appointment as entered in the records was sufficient without the special appointment; and that no question was presented concerning the filing of the special appointment, because of the fact that no objections were made at the time it was filed.</p> <p>Same. — Bill of Exceptions. — A bill of exceptions signed by the special judge, reciting that his written appointment was signed by the regular judge at his residence in another county, and transmitted to the clerk by express, presents no question on appeal.</p> <p>Pleading. — Board of County Commissioners. — In an action before a hoard of county commissioners for services rendered,a county by an attorney, a statement of account, showing the items of the claim, is sufficient.</p> <p>County Commissioners. — Employment of Attorney. — The fact that a county has an attorney regularly employed to attend to the legal business of the county, does not prohibit the board of county commissioners from employing a second attorney, especially if the first contract is void because of the length of employment.</p> <p>Same. — Practice.—Dismissal on Appeal.- — Befusal to Plead. — The practice on appeals from county commissioners is to try cases upon the issues made before the commissioners; but if both parties and the court act upon the theory that issues should be made in the circuit court, a withdrawal, by the defendant, of his answer, and an announcement by him of an intention to abide the result of a demurrer sustained to a part of it, justifies the court in dismissing the appeal at his costs.</p>

<p>From the Delaware Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Greene Circuit Court.</p>

<p>From the Clark Circuit Court.</p>

<p>Promissory Note.— Action by Endorsee.— Fraud, as Defence.— Innocent Holder. — Special Verdict. — In an action by the endorsee of a note against the maker, where the answer alleges that the execution of the note was obtained by fraud, and that the consideration was fraudulent, and'that the plaintiff had full knowledge of the consideration for which the note was given, a reply by the plaintiff averring that at the time he purchased the note he had no notice of any defence thereto, but admitting the other averments of the answer, does not amount to such an admission of the allegations of the answer as to entitle the defendant to judgment notwithstanding the general verdict, in which it was found that the note was assigned to the plaintiff before maturity for a valuable consideration in due course of business, and that the plaintiff purchased the same without any knowledge of the existence of any defence thereto.</p> <p>Special Verdict. — Instructions to Jury. — Where a special verdict is requested, the instructions of the court are very limited; but it has the right to instruct the ju’ry as to the nature of the action, as, also, respecting the form of their verdict and their general duty thereto. General instructions as to the law, however, are unnecessary.</p>

<p>Promissory Note. — Patent-Right,—Sale.—Non-Compliance with Statute.— Rights of Innocent Pwehaser. — A promissory note, not governed by tbe law merchant, given for a patent-right, the vender of which has not complied with the statute of this State, which requires venders of patent rights to file with the county clerk copies of the letters-patent, and to make an affidavit that the letters are genuine, and requiring that notes given for the purchase of such rights shall contain the words “given for a patent-right,” can not be'collected by the payee, a purchaser with notice, or an innocent holder.</p> <p>Same. — Exercise of Right in Another Slate. — The fact that the right sold was to be exercised and enjoyed in another State is immaterial.</p>

<p>From the Decatur Circuit Court.</p>

<p>Pleading. — Fraud.—In pleading fraud it is necessary to show the facts constituting it.</p> <p>Same —Fraudulent Representation.— Deceiving. — Relying Upon. — A person defending upon the ground of fraudulent representations must show himself to have been ignorant of the truth in regard to the matter about which the representations were made; and that he relied upon the representations, and acted upon them to his damage.</p> <p>Same. — Illegality of Consideration. — Pleading.—If the maker of a note, in an action thereon against him, desires to plead the illegality of the consideration thereof, he must state fully and clearly all the facts which enter into and constitute the consideration, and render it invalid.</p> <p>Fraud. — Promise, to be Performed in Futwre. — A promise, to be performed in the future, can not ordinarily be made the basis on which to found an action, or a defence, for fraud.</p> <p>Same. — Illegality of Contracts. — Presumption of. — Amount of Proof. — Courts will not indulge any presumptions against the legality of a contract; but, on the contrary, they will indulge the presumption of legality until it is clearly overthrown by facts. They will not declare it illegal without a complete showing of all the facts and circumstances.</p>

<p>From the Greene Circuit Court.</p>

<p>From the Kosciusko Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Harrison Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Starke Circuit Court.</p>

<p>From the Franklin Circuit Court.</p>

<p>Railroad. — Far-rir-Crossing.—Gate Erected at.- — Killing Stoch. — Liability for. —Under the acts of April 8th and 13th, 1885, where a gate is erected at a farm crossing by a railroad company for the convenience of an adjacent land-owner, or is erected by the adjacent land-owner with the consent of the company, the company is not liable, in the absence of negligence, for the injury or killing of animals belonging to such landowner or other persons, which enter upon the track through such gate.</p> <p>Same. — Verdict.—Ambiguity.— Venire deNoro. — The law, as stated, is applicable only to gates erected at farm crossings, and where the verdict is ambiguous and uncertain as to whether there was a farm crossing for the convenience of the adjacent owner at the place where the gate was erected, and through which the animals entered, a motion for a venire de novo should be sustained.</p>

<p>Judgment. — Dismissal without Prejudice. — No Bar to Second, Swit. — Where, after evidence is heard in a cause, and a special finding is prepared but not signed, the plaintiff, by leave of court, obtained before the court announces its finding, dismisses his action without prejudice, such proceedings are no bar to a second suit on the same cause of action.</p>

<p>From the Decatur Circuit Court.</p>

<p>Replevin. — Pleading.—Complaint.—In an action of replevin an averment in the complaint that the defendant “ unlawfully holds ” the property is equivalent to an averment that it is “ unlawfully detained.”</p> <p>Same. — Detention of Properly. — Venue.-—In such action the complaint need not allege that the property is detained in the county where the suit is brought. Section 1547, R. S. 1881.</p> <p>Appellate Codbt. — Practice.—-Instructions.—Applicability of to Evidence.— Certification by Trial Court. — Presumption.—A certification by the lower court under section 650, R. S. 1881, that the instructions given were applicable to the evidence will be presumed, on appeal, to have been truthfully made.</p>

<p>Cbimtnal Law. — Anso».—Married Woman.— Husband’s Property. — Under our statute (section 1927, B. S. 1881) a woman is guilty of the crime of arson in burning her husband’s barn.</p> <p>Slander. — Complaint.—Overruling Demurrer. — Harmless Error. — Where, in ' an action for slander, there is no evidence tending to prove a set of words alleged in a paragraph of the complaint, available error can not he predicated on the overruling of a demurrer thereto.</p> <p>Same. — Necessary Extrinsic Facts. — Innuendo.—If extrinsic facts are needed to make the words actionable, it is not sufficient to supply them by way of innuendo.</p> <p>Same. — Complaint.—Sufficiency.—The words, “ It is the opinion of the people that Mary Daum burnt the barn, and it is mine,” lire not actionable without an allegation of extrinsic facts showing that the barn spoken of was the property of another, and was worth twenty dollars or upwards.</p> <p>Same. — The words, “ We had a fire in our neighborhood last night; Lu Damn’s barn burnt, I don’t know any thing, but the report is that Mary Daum burnt the barn,” are not actionable without an allegation of some extraneous facts giving them a slanderous meaning, and a colloquium to connect them with such facts.</p>

<p>Change op Venue. — Motion to Issue an Execution, — Upon a motion to issue an execution upon a judgment, either party is entitled to a change of venue from the judge, upo,n filing the proper affidavit; and it is error to refuse it.</p>

<p>From the Madison Circuit Court.</p>

<p>Promissory Note. — Real Party in Interest. — Transfer by Ouardianof Ward's Note. — Where a guardian assigns notes belonging to the estate of his ward in payment of his individual debt to the assignee, who has knowledge of the ownership of the notes, the maker may defeat an action thereon by such assignee, on the ground that the assignee has no title, and is not the real party in interest.</p>

<p>Railroad.— Venue. — Suit for Service Rendered.— Where Brought. — Section 796 of Code of 1852 Still in Force. — An action may be brought against a railroad corporation for services renderéd it in any county where it has an office for the transaction of business, or any person resides, upon whom process may be served. Section 796 of the Code of 1852 is still in force.</p> <p>Same. — Action for Medical Services Rendered. — In an action against a railroad company to recover for services rendered as a physician, where it is alleged that such services were rendered at the special instance and request of the defendant, the plaintiff must show that the defendant employed him, or directed him to be employed, to perform the services for which he seeks to recover.</p> <p>Same. — Employment.—Evidence of. — In an action against a railroad company for medical services rendered it, it is error to admit the declarations of a physician, made at the time of the alleged employment, to the effect that the company would pay the plaintiff, unless it is first shown that such physician had authority to bind the company.</p> <p>Same. — Power to Employ Physician. — A physician who is only occasionally employed by a railroad company to attend to persons injured thereon, but who is not its regularly employed physician, has no power to bind the company in the employment of another physician to assist in a case in which he, the former, is specially employed by such company.</p>

<p>Costs. — Appeal from Justice. — Interest.—Attorney’s Fees. — In an appeal by a defendant from the judgment of a justice of the peace, the interest accruing upon the claim between the date of the rendition of the judgment before the justice and the date of rendering judgment in the circuit court, and the attorney’s fees allowed the plaintiff in the latter court can not be deducted from the judgment rendered in such circuit court, in order to amerce the plaintiff in the costs accruing on such appeal.</p> <p>Attorney. — Fees are Fot Costs. — Attorney’s fees provided for in a contract are not costs, nor in the nature of costs. They form a part of the cause of action, and are recovered because they are provided for in the contract sued on.</p>

<p>Appellate Court. — Error in Overruling Demurrer for Misjoinder. — Judgment not Reversed for — A judgment will not be reversed for erroneously overruling or sustaining a demurrer for a misjoinder of causes of action.</p> <p>Practice.— Venire de Novo. — A venire de novo will be awarded only where the verdict is defective, uncertain or ambiguous.</p> <p>Same. — New Trial. — Joint Motion. — A joint motion by two or more co-parties for a new trial will not be sustained if any one of the parties be not entitled to a new trial.</p>

<p>From the Marshall Circuit Court.</p>

<p>Master and Servant. — Negligence.—Patent Defects. — A servant is bound to know what is open to observation and can be ascertained by the ordinary exercise of the senses. He is chargeable with notice of defects patent and obvious.</p> <p>Same. — Minor or Inexperienced Servant. — Assumed Disks. — A minor or inexperienced servant, in his contract of employment, by legal implication, assumes all the risks ordinarily incident to the service, including all of which he has notice, and all that are patent and obvious to him.</p> <p>Same. — Instructions to Inexperienced Servant. — Sufficiency of. — -Instructions to an inexperienced servant must be such as to enable him to comprehend the dangers of his situation and appreciate the necessity of adopting prudent methods for his protection.</p> <p>Same. — Minor.—Hazardous Employment. — Instructing.—A master may employ an infant in a hazardous occupation, if he will furnish him with such information relative to the perils of his situation as will enable him to comprehend the dangers and understand how to avoid them.</p> <p>Same. — Servant Unable to Understand Instructions. — May not Employ. — It is an actionable wrong for a master to expose in a hazardous employment one whom he knows to be lacking in capacity to understand and appreciate the dangers surrounding him, however much he may have been instructed.</p> <p>Same. — Capacity of Infant to Appreciate and Understand Danger. — To justify a master in the employment of an ignorant and inexperienced infant in a hazardous calling, such infant must possess sufficient capacity to understand the dangers of the situation, and to appreciate the importance of heeding prudent warnings for his own safety.</p> <p>Practice. — Demmrer to Bad Paragraph Overruled. — Presumption.—Where a demurrer is overruled to a bad paragraph of a complaint containing one or more good paragraphs, it will be presumed harmful and be held reversible error, unless it affirmatively appears by the record that the judgment rests exclusively upon the good paragraphs.</p> <p>Same. — Interrogatories Showing Verdict Based on Good Paragraphs. — If interrogatories answered by the jury show that the general verdict is based entirely upon the good paragraphs, the overruling of the demurrer is a harmless error.</p> <p>Same — Improper Evidence Cured by Instructions. — If the court admit improper evidence, the error is cured by the judge informing the jury in his instructions that such evidence is incompetent and should not be considered by them for any purpose.</p> <p>Instructions. — Completeness.—Not Applicable to Whole Case. — It is not necessary that each instruction should contain the whole law of the case, or any branch of the case with the recognized exceptions. If an instruction contains a complete statement of a proposition of law applicable to the facts in a given case, it will be held good as a part of a series containing the entire law of the case.</p> <p>Same. — All Construed Together. — Failure to Define Contributory Negligence.— All the instructions should be considered together, and construed with reference to each other. An instruction on the negligence of the defendant, to be sufficient, need not make any allusion to the contributory negligence of the plaintiff, if such contributory negligence has been defined in other instructions given to the jury.</p> <p>Same. — Rejusal.—It is not error to refuse an instruction covered by one given.</p>

<p>Negligence. — Evidence.—In an action to recover for an injury to a mare from a wrong entrance, caused by the negligence of the owner of the stallion, it is error to- permit witnesses, even though experts, to testify that in their experience they had known of wrong entrances, of the character described in the complaint, being made without injury to the mares.</p> <p>Same. — Charge of. — Indefiniteness.—An.objection first made on appeal that the charge of negligence in such action is not sufficiently definite presents no question.</p> <p>Appellate Coubt. — Improper Admission of Material Evidence. — Presumption. —Where material evidence has been improperly admitted it will be presumed that it influenced the verdict or finding unless the contrary clearly appear.</p> <p>Pleading. — Complaint.—Bate.—AbbreviaMon.—The figures “ 88,” stating in a complaint the date of the commission of a tort, will be read as “ 1888.”</p> <p>Statute op Limitations. — Plea of. — Complaint.—A demurrer to a complaint, on the ground that the action it barred by the statute of limitations, will not lie unless it appears on its face that the action was not commenced within the period of limitation, and, also, that the case is not within any of the exceptions.</p>

<p>From the Owen Circuit Court.</p>

<p>Bill of Exceptions. — “All the Testimony.” — A statement in a bill of exceptions that it contains “all the testimony given to the jury” is not sufficient to show that it contains all the evidence given to them.</p> <p>Practice. — Amendment of Complaint After Evidence Heard. — A complaint may be amended by leave of the court after all the evidence is heard, so as to conform to such evidence; and unless the record shows affirmatively that the defendant was misled or prejudiced by such amendment, the presumption is, on appeal, that he was not prejudiced either by the amendment or by leave of the court allowing the plaintiff to make it.</p> <p>Same, — Reswearing Jury. — Bill of Exceptions. — It is not error to refuse to re-swear the jury when an amended complaint is filed during the trial if a new issue is not thereby tendered. In order to present any question on appeal touching the action of the court in such an instance, a bill of exceptions is necessary.</p> <p>Same.— When not Error to Refuse a Special Verdict. — After instructions have been requested by a party, some of which have been argued and the court has designated those he will give to the jury, it is too late for such party to insist that the jury be required to return a special verdict, although the court may in its discretion direct one to be returned.</p> <p>Insteuctions. — Refusal of. — Evidence not in Record,. — A refusal of instructions stating correct legal propositions is not available error on appeal when all the evidence is not before the court. The Appellate Court will presume that they were inapplicable to the case made by the evidence.</p> <p>Ventee de Novo. — A venire de novo is only proper when there is some defect in the verdict or finding of the court; and a motion for it raises no question respecting the filing of an amended complaint during the trial, nor respecting a refusal of the court to direct a verdict for the party making it.</p>

<p>Contract. — Separate Breaches. — Action.—Pleading.—Where all the items upon which a recovery is claimed are alleged breaches of the same contract, it is not necessary that there should be a separate paragraph for each item, but all may be embraced in one by assigning each item as 'a separate breach.</p>

<p>Negligence. — JPleading. — Complaint. — Contributory Negligence. — Where a complaint charges negligence upon the part of the defendant producing an injury, and avers that the plaintiff was without fault contributing to the injury, it will be held good, unless it necessarily appears from other averments that the plaintiff was, in.fact, blameworthy.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Decatur Circuit Court.</p>

<p>Animals. — Running at Large — Impounding.—Animals which escape from an enclosure in which they have been placed by their owner for the purpose of confining them, and which he endeavors to recover when he learns of their escape, are not “ animals running at large ” within the meaning of the act of March 7th, 1887 (Acts 1887, p. 38), making it the duty of road supervisors to impound animals found running at large upon the roads.</p>

<p>From the Vanderburgh Superior Court.</p>

<p>Taxes.— Omitted Property.— Under-Valuation. — Under the tax law of 1881 the county auditor had no power to increase the valuation of property returned, under his general authority to assess omitted property. The. auditor could only assess property as omitted where it was distinct, definite and recognizable articles which had not been listed and properly appraised for taxation by the owner.</p> <p>Same. — Assessing Property under Wrong Item, of Schedule. — Omitted Property. —Property listed under the wrong item of the owner’s tax schedule can not be regarded as omitted property so as to authorize the auditor to revalue it as such.</p>

<p>From the Rush Circuit Court.</p>

<p>From the Carroll Circuit Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>Landlord and Tenant. — Waste. — Ejection of Tenant. — Forfeiture of Crops. — Judgment.—Iu an action by a landlord against his tenant for posession of the leased premises, because of waste committed by the latter, a general judgment for possession in favor of the former does not forfeit the tenant’s right to the crops growing on the leased premises, although he moved away before they were harvested. Section 286, E. S. 1881.</p> <p>Costs. — Replevin.—Dividing Costs of Action. — In an action of replevin where part of the property is awarded the plaintiff and the remainder to the defendant, the costs may be divided between the parties in the same ratio that the property is awarded by the judgment.</p>

<p>From tbe Marion Superior Court.</p>

<p>New Trial. — Admissions After Trial not Newly Discovered Evidence. — Admissions of a defendant made after trial are not newly discovered evidence within the meaning of the statute.</p> <p>Appellate Court..— Evidence not in Record. — Review.—The Appellate Court will not pass upon the question whether a new trial should have been granted on the ground of newly discovered evidence, if the record . fails to show that it contains all the evidence given on the trial.</p>

<p>Foreign Corporations. — Failure to File Agent’s Authority. — Sv.il by Assignee of Note Taken by it. — The holder of a note may maintain an action on it although the note was taken by a foreign corporation, which had not complied with the provisions of sections 3022 and 3030, E. S. 1881, and by it transferred to such holder.</p> <p>Promissory Note. — Payable at a Place not a Bank. — Defence.—If the place where a note is payable purports to be a bank within this State, when in fact it is not such a bank as the statute requires a note to be payable at in order to protect a bona fide purchaser thereof, that fact must be set up by answer, to be available as a defence.</p> <p>Same. — Note Procured by Fraud. — Answer and Reply. — Burden. — If the maker alleges that the note sued upon, which is bankable paper, was procured by the fraud of the payee, a reply to such an answer that the plaintiff had no notice or knowledge relating to such fraud, but took it for value in the usual course of business, in good faith, before maturity, is sufficient. The burden rests upon the plaintiff, after the defendant has shown that the note was procured by fraud, to show that he took the note in the manner alleged in his reply.</p> <p>Venire de Novo.— When Denied. — A motion for a venire de novo will not be sustained unless the verdict or finding is so defective and uncertain upon its face that no judgment can be rendered thereon.</p>

<p>Promissory Note.— Collateral Written Agreement.— An agreement in writing, executed at the same time a promissory note is executed, with reference thereto, becomes a part of the contract, and it and the note must be construed together in ascertaining the liability of the maker of such note and his surety.</p> <p>Sureties. — Construction of Contract of. — A surety has a right to stand upon the very terms of his contract of suretyship ; but such a contract, like the contract of any other person, must be given a reasonable interpretation, in accordance with the established rules of construction — not a forced and unreasonable construction.</p> <p>Same. — Collateral Contract as to Interest. — Inability for Interest Accruing after Note is Due. — Attorney’s Fees. — An agreement in writing signed by the payees of a note, that the surety “ shall not be bound to us for interest, but for the principal alone,” relieves the surety from all liability to pay the interest accruing before the note falls due, but not from liability for the interest accruing after its maturity, nor from attorney’s fees allowed when suit is brought on the note.</p>

<p>Railroad. — Killing Stock. — Fencing Track. — Pleading.—-Answer.—Demurrer, —In an action for the killing of plaintiff’s cow which had entered upon the defendant’s railroad track, where the track ought to have been securely fenced but was not, an answer setting up matters of evidence from which it might be inferred that it could not have been fenced without interfering with the rights of the public, or the free use of 'the tracks by the company or jeopardizing the safety of its servants, but without alleging any issuable facts to that effect, is demurrable</p> <p>Pleading.— Only Ultimate Facts to he Pleaded. — Where facts are sufficiently pleaded it is the duty of the court to proclaim the law applicable to them, and declare the rights and liabilities of the parties upon such facts. But it is the office of pleading to assert ultimate or issuable facts, which alone can call into exercise the functions of the court to make the application of the law, and not mere matters of evidence from which such facts may be inferred.</p>

<p>Parent and Child. — Domestic Service. — Express Contract of Payment. — How Inferred. — Where a father and his adult children live together as members of the same family, there is no implied undertaking on the part of either to pay for services, but such an undertaking may always arise, not only from an express contract, but it may be inferred from surrounding circumstances.</p> <p>Statute oe Limitations. — Services.—Contract.—Where services have been rendered under an agreement which does not fix any specified time for payment or when the contract shall end, it amounts to one continuous contract, and the statute of limitations does not begin to run against any cause of action arising out of such agreement until the service has ceased.</p> <p>Practice. — Refusal of Instructions. — Available error can not be predicated upon the refusal to give instructions requested, even if they state the law correctly, where such instructions are substantially embraced by those given by the court of its own motion.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Marshall Circuit'Court.</p>

<p>From the Porter Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Bill op Exceptions. — Presumption as to Time Given for Filing. — Parol Leave to File. — If a bill of exceptions, duly signed, but without date, is filed at any time during the trial term, but after the date of such trial, and the motion for a new trial overruled, it will be presumed; on appeal, that time within the term for the presentation of the bill to the judge was given by parol at the proper time, and that the bill was presented to him within the time so allowed, even though the date of presentation is not stated in the bill.</p> <p>Negligence. — Failure to Anticipate the Wrongful Act of Another. — It is not negligence to assume that another will do his duty, or to fail to anticipate the fault of another.</p> <p>Same. — Cattle at Large in a Town. — Excavation in Streets. — It is not negligence in the owner of cattle to allow them to run at large in the streets of a town, where an ordinance thereof permits it, in which excavations are being made for the laying of gas-pipes.</p> <p>Same. — Excavation in Street. — Guarding.—One making an excavation in a public highway must keep it constantly guarded while it is dangerous.</p> <p>Same. — Contributory.—Sufficient to Defeat Action. — Negligence which will bar a recovery must have contributed directly and proximately to the injury of which the plaintiff complains.</p> <p>Evidence. — Admission After Close of Case. — -It is within the sound discretion of the trial court to permit the plaintiff to introduce further evidence after the defendant has closed the case.</p>

<p>Insurance. — Forfeiture by Season of Breach Against Vacancy. — Waiver.— Where a policy of insurance on a dwelling-house is conditioned to he void if the house should become vacant or unoccupied, the right being reserved to the company to cancel the policy for, a breach of the condition by returning the unearned premium, if the company after notice that the property has become vacant accepts payment of the premium due, and refuses, when requested by the insured, to return the unearned premium and cancel the policy or issue a vacancy permit, it thereby waives the right to forfeit the policy and is liable for any loss that may afterwards occur.</p>

<p>Decedents’ Estates. — Account Against.— Sufficiency. — An account filed against a decedent’s estate must contain all the facts necessary to show, prima facie, that the estate is lawfully indebted to the claimant; but it is sufficient if it apprise the defendant of the nature of the claim, the amount demanded, and- contains enough substance to bar another action for the same demand. A complaint against an estate is put upon the same footing with a complaint in a cause originating before a justice of the peace.</p> <p>SAME. — Account for Worh and Labor Performed. — A complaint for work and labor, to withstand a demurrer, must show that the services performed were not merely voluntary, and must show an agreement to pay, or circumstances from which the same may be properly inferred; and the same is true of an account for such service filed against an estate.</p> <p>Same. — Account Good in Part. — Demurrer.—If any part of a claim filed against an estate is sufficient, the complaint or statement can not be held bad, because there are individual items which, when taken singly, would not amount to a good cause of action.</p> <p>Same. — Parties to Action. — Name of Administrator. — Summons.—Appearance. — Waiver. — When a claim is filed against an estate.it is not necessary to issue a summons for the administrator, nor to formally make him a party, nor to endorse his name on the claim as a defendant. Even though such were necessary, a full appearance by the administrator is a waiver of them.</p> <p>Same.— Commencement of Action. — When the claim has been filed and entered upon the docket the action has been commenced.</p> <p>Same. — Affidavit.—Sufficiency.—Credits.—“Justly Due and Owing.” — A statement in the affidavit attached to a claim filed against an estate, “ that no payments have been made thereon except the credits therein given, and that there are no set-offs against the same to ” the affiant’s “ knowledge,” is equivalent to setting forth “ all credits and deductions to which the estate is entitled; ” and the statement that the balance shown “ is now justly due' and owing,” is the equivalent of saying that it “ is justly due and wholly unpaid.”</p> <p>Same. — Failure to Attach Affidavit to Second Paragraph of Complaint. — Where a second paragraph of complaint against an estate is filed in open court, after leave obtained, the failure to verify it is an immaterial error if the first paragraph has been duly verified.</p> <p>Contract. — Specific Performance. — Quantum Meruit. — If there has been an agreement which, in all its essential features, amounts to an enforceable contract, a party may sue, in some.instances, in case of a violation of such contract, either for a specific performance or for damages for a breach of the contract; but when the elements entering into such agreement are such as do not amount to an enforceable contract, or one the violation of which can not well be compensated in damages, and oneof the parties has, in good faith and in an attempt to carry out its provisions, rendered services or delivered articles of value to the other party, and such other party has accepted the same, although the exact terms of the contract can not be legally enforced, the law will yet hold the recipient of such services or articles liable for their value.</p> <p>Practice. — Trial by Jury. — Waiver of Right to Insist that Court Should Try Cause. — -A failure to object to a trial by jury is a w-aiver of a right to insist that the cause should be tried by the court.</p> <p>Statute oe Limitations. — Continuous Contract. — Services.—Where services have been rendered under an agreement which does not fix any eg^tsún time for payment or when the contract shall end, the statute, of limitations does not begin to run until the services have ended, such an.agreement being a continuous contract; but for services rendered before such agreement, for which there is a liability under an implied contract, the statute of six years is a bar, although the services rendered were continuous and uninterrupted.</p> <p>Costs. — Decedent’s Estate. — -Unverified Paragraph of Complaint. — The claimant against an estate is entitled to recover his costs, if he is successful in establishing his claim, notwithstanding the fact that by leave of court he has filed a second paragraph of complaint which is unverified.</p>

<p>Appellate Court. — Conflicting Evidence. — Where the evidence is conflicting the Appellate Court will not undertake to weigh it, but will accept that which the trial court deemed credible and satisfactory.</p>

<p>From the La Porte Circuit Court.</p>

<p>From the Warrick Circuit Court.</p>

<p>County Auditor, — Compensation for Official Services. — Before a county auditor can sustain a demand for compensation from the county for official services performed by him, he must show a statute conferring clear and unequivocal authority upon the board of county commissioners to make an allowance to him for such services out of the county treasury.</p> <p>Same. — Compensation for Filing Paper.— When Deemed Covered by Salary.— If a paper filed by the auditor be one in the filing of which the county is directly interested, rather than any natural person; or if, under the circumstances of the particular case, the collection of a fee from any natural person for the filing is impracticable or unauthorized, the compensation of the auditor for such services must be regarded as covered by the salary.</p>

<p>From the Spencer Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Negligence. — Owner Setting Out Fire on His Premises — The ow,ner has the right, for the purpose of reducing his land to a state of cultivation, to kindle a fire upon it, if he does so at a proper time, under ordinarily favorable circumstances, and in a reasonably prudent manner.</p> <p>Same. — Starting Fire in Stubble or Peat Bed. — It is negligence in an owner to start a fire on his own land when it is immediately surrounded by highly combustible and inflammable material, as stubble, up to the very border of an adjacent proprietor’s soil, and from there on indefinitely • and so it is negligence in him. to start a fire, in a dry time, in his peat bed, filled with rotten roots, if such bed is immediately surrounded by soil of the same kind owned by another.</p> <p>Same. — Special Verdict. — Where the facts, in an action for negligence, are found by a special verdict, it is the province of the court to decide whether such facts amount, at least prima facie, to negligence.</p>

<p>Insurance. — Other Insurance. — Forfeiture.—Notice of. — Waiver.—Conditions against other insurance, although coupled with clauses of forfeiture absolute and positive in terms, are voidable only; and the insurer with actual notice of additional insurance, in order to work a forfeiture on that'account, must, in some satisfactory manner, declare his disaffirmance, or he will be presumed to have given consent and waived the forfeiture.</p> <p>Same.— Waiver by Sequesting the Publication of Data for Estimating Amount of Loss. — If the adjuster of an insurance company visit the scene of the conflagration within a few days after the fire, and, upon hearing of the other insurance for the first time, cause the insured to procure duplicates of his bills of purchase, and other data, for the purpose of obtaining a basis for the payment of the loss, the jury may find from these facts a waiver of the forfeiture occasioned by the breach of the policy against other insurance.</p> <p>Notice. — Mailing Letters in Post-office. — Proof of Having Written. — Where actual notice is required, evidence of the mailing of a letter containing such notice, properly addressed and stamped, is prima facie proof of the receipt of the notice, and if its receipt ig not denied the court may instruct the jury to so find; but if its receipt is disputed, the question should be submitted to the jury, to be determined from all the evidence, both positive and circumstantial, whether the notice was in fact received or not. A witness can not testify that he saw the author of the letter writing a letter, and that he told him he was writing it for the purpose of giving the notice.</p> <p>Instructions. — Court Drawing Inferences for Jury. — If the evidence is undisputed upon an essential fact, and but one inference may be properly drawn from it, the court may so instruct the jury, and to that extent control the verdict; but if the evidence is conflicting, or is of such a character that different inferences might be drawn from it, the question must be submitted to the jury without interference on the part of the court, except to instruct generally upon the law of the case.</p>

<p>From the Delaware Circuit Court.</p>

<p>From the "White Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>Railroad. — Killing Stock— Wilful Injury. — JBoidence.—In an action against a railroad company for wilfully killing plaintiff’s cow, a witness for plaintiff testified that the train came almost to a stop about a thousand feet from the crossing where the cow was standing; that she could be seen by one upon the engine for a half-mile ; that the train started up and increased its speed to thirty miles an hour until it struck the cow, and then ran much slower; that the engineer was looking out of the cab in the direction of the crossing, but gave no signal, and made no attempt to frighten her from the track. The engineer testified that he did not see the cow in time to avoid striking her; that he tried to stop his engine, and that he did not intend to kill her.</p> <p>Held, that it was error to withdraw the case from the jury, as it was for them to say whether the killing was wilful.</p> <p>Same. — No Presumption that Animal will Leave Track. — An engineer has no right to presume that a cow or other animal will leave the track as the engine approaches in time to avoid injury.</p> <p>Instruction.— Verdict.— When Court May Direct. — Where there is an absolute failure of evidence upon a material point in a given case, it is within the power of the court to direct the verdict; but where the evidence is conflicting, or where it is of such a character that different inferences may reasonably be drawn from it, tbe court bas no right to withdraw it from the jury.</p>

<p>From the Warren Circuit Court.</p>

<p>Sale. — Acceptance.—Where the owner of goods places them in the hands of a dealer to be sold, and afterwards sends him a proposition to sell to him at the market price, the retention of the goods without response creates a presumption of the acceptance of the proposition to sell, or implies a promise to pay for the goods a fair market value.</p>

<p>From the Miami Circuit Court.</p>

<p>Practice. — Collateral Motions. — Bill of Exceptions. — Collateral motions, such as motions to paragraph a pleading and to make it more specific, and the rulings thereon, can be brought into the record only by a bill of exceptions or by a special order of the court.</p> <p>Same. — Time of Filing. — Where exceptions are taken to rulings made on such motions in forming issues, the exception must be reduced to writing at the time, unless leave is obtained to reduce them to writing within a given time, or unless the bill is filed within the term at which the ruling is made; in which event it will be presumed that such leave was granted when the ruling was made.</p> <p>Same. — A bill of exceptions, filed after the close of the term upon leave given, because of the overruling of the motion for a new trial, will not embrace motions made during the framing of the issues.</p> <p>Evidence. — Privileged Communications. — Attorney.—Scrivener.— Communications made to an attorney acting as scrivener are not privileged.</p> <p>Appellate Court.— Weight of Fhidencc. — Where there is evidence fairly tending to sustain the verdict of the jury, on every material point, the verdict will not be disturbed merely on the weight or sufficiency of the evidence, however conflicting the evidence may be, or however great, apparently, may be the preponderance against the finding or verdict.</p>

<p>From the Madison Circuit Court.</p>

<p>From the Gibson Circuit Court,</p>

<p>From the Greene Circuit Court.</p>

<p>From the Jackson Circuit Court.</p>

<p>Guardian and Ward. — Authority to Sell Ward’s Ileal Estate. — Notice of Guardian’s Power. — The power of a guardian to sell his ward’s real estate depends upon express authority of the court under whose jurisdiction he ants, granted in stx'ict conformity to the statute authorizing such sales; and all who deal with him are bound to know the circumscribed character of his powers.</p> <p>Vendor and Purchaser. — Parol Contract. — Money Paid On. — .Recovery.— Enforcement of Contract. — If a purchaser of real estate by a parol contract pay money on the contract for it, he may recover back the money advanced upon the purchase, if the vendor either declines to perform the contract or is unable to do so. Such a contract, however, can not be enforced.</p> <p>Same. — Recovery of Money Paid Under Parol Contract.— Vendor Able and Willing to Carry Out Contract. — Under a parol contract for the sale of real estate, if the vendor is able and willing to consummate the sale, the vendee can not rescind and recover the money he has advanced.</p> <p>Same. — Doubtful, or Irregular, Title. — A purchaser of real estate is not bound to carry out an executory contract of sale if there is such a defect, or irregularity j in the title, as justly excites his suspicion, or which may involve him in litigation, although it might be pronounced good by legal advisers.</p> <p>Same.- — Contract with Guardian to Purchase Ward’s Estate. — Irregularity of Order of Sale. — Doubtful Title. — Recovery of Money Paid. — A guardian entered into a written contract of purchase for the sale of his ward’s real estate, upon the express conditions that a third person having an interest in it would join in the sale; that the ward’s wife would convey her interest in it, and that he could obtain authority from the proper court enabling him to make a sale that would give to the purchaser a “good and perfect title.” Four hundred dollars were paid down by the purchaser as a forfeit. The guardian filed a petition reciting the necessity for the sale, the contract he had entered into, and asked authority to carry out its provisions and execute a deed to the purchaser. The court found the interest of the ward’s estate would he promoted by acceptance of the proposition made, appointed appraisers, who reported inslanter (whereupon the guardian at once filed the necessary bond), and directed the guardian to publish notice of the sale for ten days in a designated daily paper; and at the expiration of the time, if he did not receive a higher bid, he was directed to convey the land at once by deed to the purchaser named in the written contract. No terms were fixed for the payment of the purchase money, but the terms of the written contract were for cash. Before the expiration of the ten-day limit, the purchaser under the contract paid five hundred dollars more, and the parties, by written agreement endorsed on the contract, extended the time of performance four days beyond the limit named in the contract, upon the condition that if the purchaser should, at the end of that time, decide that the title to the real estate was defective, the money was to be returned; but if he elected not to consummate the contract, it was to be retained by the guardian. The purchaser declined to consummate the sale, on the ground, as he claimed, that the title was defective.</p> <p>Held, that the title was so doubtful that the purchaser was entitled to recover back the money paid; but if it had not been doubtful, the contract was valid and enforceable.</p>

<p>Pleading. — Failure to Reply. — Judgment.—Tire failure to reply to a paragraph of answer containing a good affirmative defence admits its truth, and entitles the defendant to judgment; and the insufficiency of the other paragraphs of the answer is immaterial.</p>

<p>From the Steuben Circuit Court.</p>

<p>Malicious Trespass. — Killing Dog. — Damages.—One who wilfully and maliciously kills a dog which is not vicious or dangerous in its disposition and habits, and is not engaged in committing damages, is liable to the owner for the fair value of the animal.</p> <p>Verdict. — Special Findings. — Special findings conirol the general verdict only where there is an irreconcilable conflict between them upon a material question.</p> <p>New Trial. — Motion For.— Pendency of Motion for Judgment on Special Findings. — The fact that a motion for judgment on special findings is taken under advisement, and not ruled upon until the subsequent term, does not excuse a failure to move for a new trial within the time fixed by section 561, B. S. 1881.</p> <p>Same. — -A motion for judgment upon special findings may be made after a motion for a new trial.</p> <p>Same. — Application.—Time of Making. — An application for a new trial must be made within the time fixed by section 561, B. S. 1881, unless an extension of time be given by agreement of the adverse party, except for causes discovered after the term at which the trial was had.</p>

<p>Promissory Note. — Action on. — Pleading.—General Denial. — Proof of Endorsement. — In an action against the maker on a promissory note, alleged to have been assigned to the plaintiff by written endorsement, there can be no recovery, if the general denial is in, without proof of such endorsement.</p>

<p>Bastardy. — Dismissal of Prosecution. — Note.—Consideration.—Death of Child. —Where the father of a bastard child gives to the mother a promissory note for the purpose of maintaining the child and securing the dismissal of the bastardy proceeding, the death of the child shortly after its birth will not defeat the collection of the note on the grourid of a failure of consideration.</p> <p>Same. — Reduction of Judgment. — Section 996, R. S. 1881, which provides that the judgment may be reduced by the court upon the death of the child before the expiration of the time limited for the last payment, does not provide for any reduction where notes are given as above.</p>

<p>From the Elkhart Circuit Court.</p>

<p>From the Fayette Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Appellate Court. — Motion to Suppress Deposition or Amend a Pleading.— A motion to suppress a deposition or to amend a pleading can not be assigned as an independent error in the Appellate Court.</p> <p>Same. — Demurrer.—Exception.—Failure to Take. — On appeal it must appear of record that an exception was taken to the ruling on a demurrer to make such ruling available for review.</p> <p>Expert Evidence. — Proof of Pedigree of Morse. — A witness who has had. experience in the breeding and in the pedigrees of horses may testify as to the pedigree of a horse, although he obtained his knowledge of such pedigree from trotting registers, stud books and advertisements.</p> <p>New Trial. — Cumulative Evidence. — A new trial will not be given because of newly discovered evidence which would probably not change the result of the trial.</p> <p>Same. — Diligence.—A party asking a new trial because of newly discovered evidence must show that he used due diligence to discover it before the trial.</p>

<p>From the Jefferson Circuit Court.</p>

<p>Interrogatories to Jury. — Jury Not Required to Find Items of Evidence.— In an action against an estate for services rendered in loaning, collecting and disbursing decedent’s money, covering a period of thirteen years, it is noterror for the court to refuse to require the jury to find, specially, the number of days the plaintiff worked for the decedent each year, how much his services were worth each year, how many loans, collections and renewals he made, with amounts and names, since it is the intention of the statute that the jury maybe required to find only material and substantial facts, and not items of evidence.</p> <p>Same. — Instruction.—The court may properly instruct the jury that in answering interrogatories they should give their recollection of the facts proven.</p> <p>Appelrate Court. — Practice.—Refusal of Instruction. — Record.—The refusal of an instruction requested can not be assigned as error where the record does not show that the instruction was requested.</p> <p>Same.— Venire de Novo. — Overruling Motion. — Independent Error. — The overruling of a motion for a venire de novo present's no question on appeal, unless it is assigned as independent error.</p>

<p>From the Porter Circuit Court.</p>

<p>From the Marion Circuit Court.</p>

<p>From the Whitley Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>From the Marshall Circuit Court.</p>

<p>Change oe Venue. — Failure to Perfect in Time. — Clerk Misleading Party.— A party applying for a change of venue is bound to complete it within the time allowed, and can not allege as an excuse for not perfecting it within time that the clerk of the court failed to notify him when the change was granted, according to his agreement to do so, or that he misled such party in stating that the change had not been granted, when, in fact, it had been.</p> <p>Pleading.— Variance Between Complaint and Bill of Particulars. — If there is a variance between the allegations of a complaint and a bill of particulars, the former control.</p> <p>Evidence. — False Representations Made to a Commercial Agency. — If a merchant, by false and fraudulent statements, made to a commercial agency) obtain a rating of credit to which he is not entitled, in order to induce a wholesale dealer to intrust him with a correspondingly large bill of goods, this circumstance may be given in evidence against him as a badge of fraud; and such wholesale dealer may show that he acted upon the information thus obtained, and was thereby induced, in good faith, and as a business man of ordinary prudence, to part with his goods.</p> <p>Judgment.— Waiver of Tort.— Form of Judgment. — If the plaintiff waive the tort, and sue ex contractu, he can not recover a judgment ex delicto, even though the evidence show a tort.</p> <p>Same. — Kind of Judgment. — How Determined. — If the complaint is unambiguous, oral evidence can not be heard to determine the character of the judgment.</p> <p>Same. — Modifying.—In deciding a motion to modify a judgment the court can not look beyond the pleadings.</p> <p>Exemption. — Fraud.—-In an action ex contractu the defendant can not be deprived of his right to claim his exemption on the ground that the evidence shows the transaction to amount to a tort.</p> <p>Practice. — Misjoinder.—Reversal of Case. — A case will not be reversed for a misjoinder of causes of action.</p> <p>Same. — No Misjoinder when One of two Paragraphs is Bad. — If there are only two paragraphs in a complaint, and one of them is bad, to all intents and purposes there is but one paragraph in the complaint, and there is, therefore, no misjoinder.</p> <p>Same.— Waiver of Tort. — Effect.—A waiver of a right to sue ex delicto is a waiver as to the entire remedy, and not of a part of it only; but such waiver does not apply to the evidence.</p>

<p>Bastardy. — Defendant Not Paying Judgment. — Surety Not Liable.' — If the defendant in a bastardy case performs all the conditions of his bond, but declines or fails to pay the judgment rendered against him, and goes to prison in compliance with the terms of the judgment, his bondsman is not liable for the amount of the judgment.</p> <p>Same. — Plea of Payment. — A plea of payment, in an action on a bastardy bond, before suit is brought thereon, is a valid defence.</p>

<p>Natural Gas.— Unduly Increasing Pressure. — Burning a Customer’s House. —Defective Flue. — Contributory Fegligence. — If a furnisher of natural gas negligently increase the pressure of gas in a consumer’s pipe so beyond the accustomed pressure that it overheats the stove of the customer, and, without the latter’s fault,' sets fire to his house and destroys it, he is liable to the consumer thus injured for the amount of his damages; but if the house catch fire by reason of a defective flue, then the furnisher of the gas is not liable, although the consumer had no notice of the defect; and it is error to refuse to so instruct the jury at the request of the furnisher.</p> <p>Same. — Failure to Pay for Gas Furnished. — Trespasser.—The furnisher of the gas can not escape liability on the ground that it was the contract between him and the consumer that if a bill for gas furnished was not paid when due, the former liad the right to cut off the supply of gas, and that the fire occurred after the bill was due and before it was paid. In such an instance the consumer is not a trespasser.</p> <p>Same. — Subsequent Vendee not Liable. — Assumption of Vendor’s Liabilities.— Evidence. — A person who has purchased the plant of the furnisher after the fire has occurred is not liable for the damages; and the contract of purchase is inadmissible in evidence, even though the purchaser assumes in the contract all liabilities of the vendor — no allegation of such assumption being in the complaint.</p> <p>Venire de Novo.— Use of Plural “Defendants.” — Only One Defendant Found Against. — The use of the word “ defendan ts,” when there is more than one, followed by the name of only one defendant, does not render the verdict so uncertain as to entitle the defendant named to a venire de novo. Same. — Failure to Find Against all the Defendants. — If the finding is against one of several defendants by name, the omission to find in favor of the other defendants is not ground for a venire de novo.</p> <p>Partnership —Partners Individually Liable for Tort. — In an action against a partnership firm for a tort, the individual members of the partnership may be held liable for the injury.</p>

<p>From the Miami Circuit Court.</p>

<p>Parent and Child. — Liability of Parent for Goods Purnisked, to Child.— A parent is liable for goods furnished to his child at his instance and request, although the child is of full age.</p> <p>Instructions. — Practice. —Instructions not properly brought into the record by a bill of exceptions, or as provided by sections 533, 535, R. S. 1881, will not be considered on appeal.</p>