Volume 10 — Indiana Appellate Court Reports

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

<p>Malpractice. — Physician and Patient. — Evidence.■—Waiver of Privilege. —Where a patient sues his physician for alleged malpractice in the treatment of the patient’s injury, the privilege existing between them is thereby waived as to all matters connected with the treatment of the injury, in which the physician participated.</p> <p>Special Finding. — How Considered. — Facts in Issue Should be Found in Substance. — A special verdict should be considered as a whole, and, when thus considered, the facts relied on should be found clearly, definitely, and plainly — not exactly as pleaded, but the substance of the issues should be proved.</p> <p>Same. — How Construed. — Intendment.—Inferences.—A special verdict should be construed reasonably and fairly, giving no heed to in.fmitessimal defects and subtle and refined distinctions, and giving no aid by intendment or inferences other than those which necessarily follow.</p>

<p>Quieting Title.— When Plaintiff not Entitled to Judgment for Costs — The plaintiff, in an action to quiet title against a defendant not in possession, can not recover costs against the defendant, on default, simply because the defendant refused, on demand, to execute a quitclaim deed to plaintiff prior to bringing suit, nor because such defendant has acted wrongfully or fraudulently.</p>

<p>From tlie Sullivan Circuit Court.</p>

<p>Evidence. — Deed.—Offered in Evidence Second Time. — Exclusion or Admission not Error. — If a deed, or a copy thereof, has once been introduced in evidence without objection, it is not error to admit or exclude the same from evidence thereafter.</p> <p>Same. — Parol Evidence of Amount of Lien. — Trust and Trustee. — Sale.— Balance Due. — In an action for a balance of the proceeds of a sale of certain real estate held in trust, it was not error to admit testimony as to the amount of a claim, in the form of a mortgage, then existing against a piece of property taken in exchange for a part of the property so deeded in trust.</p>

<p>Criminal Law. — School Teacher. — Assault and Battery on Pupil — Buie. —Presumption.—A school teacher is not guilty of assault and battery in inflicting corporal punishment on a pupil for infraction of a rule, where the rule is a reasonable one, and the punishment inflicted is not cruel or excessive, and is inflicted in a reasonable manner and a proper spirit; and in addition to the presumption of innocence, the law presumes that the teacher has done his duty.</p>

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

<p>Justice of the Peace. — Jurisdiction.—Amount Sought to he Recovered. —Bill of Particulars. — In an action before a justice of the peace, it is the amount for which judgment is sought that determines the question of 'jurisdiction, and not the amount shown by the bill of particulars filed as an exhibit with the pleading.</p> <p>Judgment.— Default.— When Should he Set Aside. — Appellate Court Practice.- — While the appellate tribunal will not review the action of the trial court in refusing to set aside a judgment taken by default, except where it appears that there has been an abuse of discretion, yet if to permit the judgment to stand would be an injustice which the court should rectify, the Appellate Court will order the judgment and default set aside.</p>

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

<p>Cokpokatioit. — Antecedent Contract Made by Promoters. — When Corporation Liable. — A corporation, after its organization, may adopt a contract made prior thereto by promoters in its interest and make the contract the obligation of the corporation. But if the contract is not primarily for the benefit of the proposed corporation and the latter does not adopt or promise to perform it, the corporation is not liable thereunder, although there be an acceptance of benefits by it.</p> <p>Same. — Pacts Stated. — Non-Liability of Corporation. — Where A enters into a contract with Z and others to build and equip a factory for them for $5,000 within ninety days after said amount is subscribed by Z and the others, and the subscribers agree to pay said sum upon the completion of the factory and to incorporate as soon as the full sum is subscribed, shares to be issued to the subscribers in proportion to their paid-up interest, and each stockholder to be liable only for the amount subscribed by him, and where, shortly after the contract is executed, the corporation is formed, a committee appointed by it to select the site for the factory and to accept it when completed, all of which is done, and the corporation continues thereafter to own and operate the factory, the corporation is not liable to A under the contract.</p>

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

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

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

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

<p>Pleading. — Complaint.—Condition Precedent. — II a complaint based on a written contract containing a condition precedent to be performed by the plaintiff, does not allege that he has performed such condition, the pleading is fatally defective.</p>

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

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

<p>Malicious Prosecution. — Invoking Criminal Law to Determine Contractual Bights. — A person lias no right to invoke the aid of the criminal laws of the State to determine the rights of another under a contract.</p>

<p>Fence. — Along Railroad Right of Way. — Action by Land-Owner for Gost of Construction. — Recovery.—Notice.—Before a land-owner can recover the cost of constructing a fence along his lands abutting on the right of way of a railroad company, the road having been constructed after the passage of the act creating the liability, he must show that that part of the road on which the lands abut had been completed twelve months before he gave notice of his intention to build the fence.</p> <p>Same. — Railroad.—Notice.—Evidence.—In such case, where the only evidence of a delivery of notice is by the plaintiff, to the effect that he gave a copy of the notice to the agent of defendant, not indicating to what notice he referred, the evidence does not sufficiently establish notice.</p>

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

<p>Pleading. — Practice.—Motion to Strike Out Part of Complaint. — The overruling of a motion to strike out parts of a complaint is not available error.</p> <p>Contbact. — To Pay Money After Death. — A contract to pay money after the death of the promisor is enforcible if based upon a valid consideration.</p> <p>Same. — Promise to Pay Money to College After Death. — Consideration.— Conditions. — Acceptance.—Trust.—An instrument promising to pay to a college a certain sum of money six months after the promisor’s death, “to be used as the capital stock of said institution is used, the principle to be loaned on real estate, and the interest only to be used for current expenses of the college,” which is accepted by the college upon the terms and conditions therein specified, imposes an enforcible trust and is supported by a good consideration.</p> <p>Same. — Endowment of Chair. — Condition Precedent. — Where an instrument promises to pay to a college, after the promisor’s death, a sum of money in consideration of the endowment of a professorship in a certain name, the acceptance of the instrument creates an enforceable trust, but the trustee is not bound to name the chair in advance of the collection of the money promised.</p> <p>Same. — Pleading.—Consideration.—A plaintiff may set up in his complaint as many considerations as he chooses for the instrument declared on, and it is sufficient to establish one, if it be valid and adequate.</p> <p>Same. — Special Finding as to Consideration. — Conclusion of Law.— Where the facts and circumstances under which a contract was made are set out in a special finding and disclose a sufficient consideration underlying the contract, a conclusion of law that there was a good consideration is justified without specifically naming it.</p> <p>Same.— Corporation. — Power to Contract. — A corporation has implied power to make any contract that may be reasonably calculated to further the purpose of its incorporation, and that is not expressly forbidden by law.</p>

<p>Guardian and Ward. — Femoval of Guardian. — Failure to Account.— Penalty. — Demand.—Where a guardian is removed by order of court, and fails and refuses to account to his successor in the trust, a complaint against him and his sureties which alleges these facts will, if supported, authorize the imposition of the statutory ten per cent, penalty, although a demand is not specifically averred.</p>

<p>Landlord and Tenant. — Ejectment.—Complaint.—Description of Seal Estate. — State and County. — Where a complaint in ejectment is captioned “State of Indiana, Perry County,” and in the body of the complaint the property is described as being in “said county,” the . fact that the property is in Perry county, Indiana, is sufficiently alleged.</p> <p>Same. — Lease.—Privilege of Additional Term. — Sental.—Construction of Contract. — Where, by a written contract, real estate is leased by one person to another, “to have and to hold during the term of one year from the first day of April, 1892, with the privilege of renting the same for three years longer,’ the lessee agreeing to pay as rent thirty dollars per month, in advance, he is entitled to retain the property for the three years upon the same terms of. rental as for the first year.</p> <p>Same. — Time of Exercising Privilege. — Selinquishment.—What Does Not Amount to. — Where a contract of lease, giving the lessee the privil-' ege of an additional term, does not fix the time within which the privilege must be exercised, the right to exercise it continues up to the time of the expiration of the first term, and if asserted, a prior statement of an intention to give up the premises, made upon the lessor demanding an unauthorized increase of rent for the additional term, which statement is in no manner acted upon by the lessor, does not amount to a relinquishment of the privilege.</p>

<p>Pleading. — Complaint.—Theory.—Must he Good as to all Plaintiffs. — A complaint must proceed upon a single, definite theory, and to be good must state a cause of action upon that theory in favor of all who join as plaintiffs.</p> <p>Same. — Joint Plaintiffs. — Complaint Must Show Interest of Both. — A complaint by two persons to rescind a contract made by one of the plaintiffs only and which shows no interest therein of the other plaintiff, is bad.</p> <p>Contract. — Bescission.—Parties.— Conveyance and Exchange. — Where two persons, owning personal property, enter into a contract with a third person to exchange such property for real estate, and agree between themselves that the real estate shall be transferred to one, the latter may sue to rescind the contract without joining the other if he shows that the transfer to him was a conveyance.</p>

<p>Pleading. — Counterclaim.-—-Sufficiency of. — A pleading by a defendant, which states facts arising out of the subject-matter declared on in the complaint sufficient to constitute in his favor an independent action, is good as a counterclaim.</p>

<p>Railroad. — Damages to Property. — Permitting Fire to Escape from Bight of Way . — Necessary Allegations. — In an action against a railroad company to recover the value of property destroyed by fire, the complaint is sufficient which showed that the company negligently permitted combustible material to accumulate on its right of way, which caught fire from a passing engine, and which was negligently permitted to spread onto plaintiff’s property, which was thereby destroyed, etc.</p>

<p>Criminal Law. — Extortion. — Fees.—Indictment.—An indictment charging the defendant with extortion in receiving illegal fees, to he sufficient, must allege that the fees received were for official services.</p>

<p>Guardian and Ward.- — Final Settlement. — Beview and Correction of Previous Beports. — Upon a final settlement of a guardian, all previous or concurrent reports are subject to review and correction.</p> <p>Appellate Court Practice. — Conflicting Evidence. — If the evidence is conflicting, the appellate tribunal will not weigh it.</p>

<p>Promissory Note.- — Escrow.—Delivery to Agent of Payee. — If the maker of a promissory note deliver the same to an agent of the payee, it is the same as a delivery to the payee, and an escrow can not be created by such delivery.</p> <p>Same. — Escrow.—Instructions by Maker to Payee's Agent. — A mere instruction from the maker of a note to the agent of the payee, as to what to do with the note delivered to him, will not constitute the payee’s agent the agent of the maker, so that such delivery will amount to an escrow.</p> <p>Same. — Delivery.— When Admissible in Evidence. — If the evidence establish the fact of delivery to the payee’s agent, the note is admissible in evidence.</p>

<p>Recovery. — When the Stile of Secundum Allegata et Probata Does Not Apply. — The doctrine that the plaintiff must recover secundum allegata et probata, if at all, does not debar a recovery where different paragraphs of complaint are filed, and evidence is introduced in support of all the paragraphs, but which is sufficient only to sustain one of such paragraphs.</p> <p>Decedent’s Estate.— Trustee of Decedent.— When Trust Ceases With Death. — Duty of Trustee to Pay Over to Administrator. — Where a deceased, in his lifetime, delivered to his brother a certain sum of money for certain purposes, there being no direction for specific payment of debts after the death of the decedent, at decedent’s death the trust ceased, and the decedent’s brother was in duty bound to account to the administrator for any balance in his hands.</p> <p>Same. — Trustee Accounting to Administrator. — Entitled to What Credits. —In such case, the trustee, in accounting with the administrator, is entitled to credits for any debts paid in good faith, in the same manner,|and to the same extent as an administrator or an executor de son tort.</p>

<p>Evidence. — Beal Estate. —Title. —Possession.—Street.—Dedication.— Plat.- — Presumption.-—-A mere showing that some one, not proved to be the owner, has placed on record a map or plat in which a street or highway is laid off, will raise no presumption against a party in possession, who has proved title in himself, coupled with possession for more than twenty years. Such plat, taken by itself, and without evidence of ownership by the donor, is of no value as tending to establish a dedication.</p> <p>Highway. — -Street.—Abandonment.—-Nonuser.—Failure to Keep in Repair. — The failure of municipal authorities to keep a street in repair, or the mere nonuser of a portion or all of such street by the public for a considerable time, will not authorize an inference of abandonment.</p> <p>Same. — Street.—How Vacated.- — The only way by which a street can be lawfully abandoned is by a proceeding to vacate the same.</p> <p>Same. — Occupancy.—Estoppel.—The mere occupancy of a street by an individual, without objection by the municipal authorities, creates no estoppel.</p>

<p>Chattel Mortgage. — Second and Subsequent Mortgagee. — Estoppel.— Fraud. — Where one accepts a chattel mortgage, wherein it is stipulated that it is second and subsequent to another mortgage executed upon the same property, he can not be allowed to assail the prior mortgage on the ground that it was made with the intent to defraud creditors.</p>

<p>Prom the Orange Circuit Court.</p>

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

<p>Poor.' — Physician.—Employment by Township Trustee.— Validity of Contract. — It is only where the board of county commissioners has failed to make provision for medical attention to the poor of a township, or where there is an emergency, that the township trustee can make a contract with a physician that will bind the county.</p> <p>Same. — County Commissioners. — Allowance to Physician. — Estoppel.— The board of county commissioners has a right, in its discretion, to make an allowance to a physician for services to the poor under a trustee’s employment, although it has in force arrangements with other persons to render such services, and the fact that such an allowance is made does not estop the board to reject a claim for subsequent attention to the same persons.</p> <p>Same.- — Contract.—Only Parties May Question. — It is only the parties to a contract that have a right to question its validity.</p>

<p>from the Howard Circuit Court.</p>

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

<p>Election. — Publication of List of Nominations. — Compensation.—Legal Pate. — As the election law of 1889, as amended in 1891 (Acts 1891, p. 126, section 23), requires the list of nominations published by the county clerks to be “arranged, as far as practicable, in the order and form in which they will be printed upon the ballots,” but provides no compensation for the printing, the rate fixed by the general law (section 6011, E. S. 1881), is applicable.</p> <p>Same. — Manner of Publication. — Statutory Pequirernent. — In the absence of a finding of fact as to the necessity for printing the list of nominations of the same size as the regular ballot in order to make it conform to the statutory requirement of order and form, the Appellate Court can not determine the question as a matter of law, and hence will not disturb a judgment fixing the publisher’s compensation at the rate provided in section 6011, E. S. 1881, for printing done according to the requirements of that section.</p>

<p>Assignment oe Errors. — Assignment Unsupported by Beeord. — Assignment, Error in Overruling Motion for Judgment on Special Finding, etc. —Beeord, Overruling Motion for Judgment Non Obstante. — An assignment of error that the court erred in overruling a motion for judgment on answers to interrogatories, notwithstanding the general verdict, has no foundation, and is without support, where the record discloses that the motion referred to was for judgment non obstante veredicto, the two motions being materially different from each other.</p> <p>Same. — Overruling Motion for Judgment, etc., can not be Made an Independent Assignment. — New Trial. — Such question (the overruling of a motion for judgment on the special verdict, notwithstanding the general verdict) can not be presented to the appellate tribunal in the first place, but must be made a basis in a motion for a new trial.</p> <p>Verdict. — Sufficiency of Evidence. — Personal Injury. — Negligence.— Contributory Negligence. — That the evidence is sufficient to sustain the verdict, see opinion.</p>

<p>Common Carrier. — Receiving Goods Without Prepayment of Freight.— Demand for Freight Charges. — Delivery.—Railroad.—If a common carrier receives goods for carriage without requiring prepayment, it is not entitled to demand its freight charges until its duty has been performed, either by delivery or offer to deliver at the place of destination.</p> <p>Same. — Duties of. — Demand for Freight Charges. — Succeeding Carrier.— And if, under such state of facts, the goods are to l?e delivered to a succeeding carrier, the carrier having the goods in charge must place them at the point of delivery to the succeeding carrier, or show a good excuse for its not being done, before it can rightfully demand its charges.</p> <p>Same.— When Its Rights as a Warehouseman Degin. — Until a carrier’s duty as such is terminated by a performance of all the duties devolving upon it, its rights as a warehouseman do not begin.</p> <p>Same. — Nonperformance of Duty. — Fxcuse.—Refusal of Connecting Carrier to Receive Goods and Assume Charges.— Warehouseman. — The refusal of a connecting and succeeding carrier to receive goods and assume the charges accrued is not sufficient to excuse the carrier having the goods in charge from any further attempt at performance of the duties on its part; but it must perform all the duties devolving upon it, or show a good excuse for not performing them, before its duties as a carrier cease or its rights as a warehouseman begin.</p>

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

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

<p>Appeal from Kosciusko Circuit Court.</p>

<p>Telegraph Company. — Discrimination.—Penalty.—When Company is not Liable. — Where a telegraph operator received a message for transmission and the charges thereon, in good faith, believing that-his company had an office at the point of destination, and, in the due order of time, attempted to transmit the same, when he learned for the first time that his company did not have an office at such point for the transaction of general telegraphic business, and hence could not deliver the message, and, at first opportunity, tendered back the transmission fee, the company is not liable for the penalty prescribed by sections 5511 et seq., E. S. 1894, for discrimination.</p>

<p>Becord. — Rulings and Collateral Matters. — Practice.-—Bulings of court and motions of a collateral nature can only become part of the record by order of court or. by bill of exceptions.</p> <p>Same. — Error Must have Foundation in Record. — Error can only be predicated upon rulings and exceptions shown by the record.</p> <p>Judgment. — Power of Court to Correct. — Mistakes and Omissions.— Clerical Error. — Practice.-—Courts have the power to correct mistakes and supply omissions in their judgments at any time when the record itself furnishes the means for making the corrections or supplying the omissions, and belonging to this class of errors are clerical errors arising from misprisions of the court or the clerk.</p> <p>Costs. — Liability for. — Motion to Betax. — In taxing costs those only should be taxed for which the party is liable, and if erroneous or unjust fees or costs are taxed, the party has his remedy by motion to retax.</p>

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

<p>Railboad. — Personal Injury.— Contributory Negligence. — Bailroad Crossing. — Where A, in approaching a railroad crossing, was riding in a wagon as the guest of B, no regular train being then due, they being nearer the railroad track when eighty feet distant from the crossing than they were to the crossing, and from this point eighty feet distant until they reached the crossing, A conversed with B as to the possibility of a train coming at that time, and also used his eyes and ears to detect the approach of a train, but saw and heard none, and told B to watch his horse, and just as they had made the crossing a train approached from the east at the rate of fifty miles an hour, without giving statutory signals as required by law, and negligently or willfully permitting a great quantity of steam to escape when opposite the already frightened horse, causing it to become unmanageable, whereby A was injured in escaping from the wagon in order to avoid imminent danger, the train being visible in its approach from the northeast at all points in the highway between the crossing and ninety feet east of the crossing, — -the court can not say, as a matter of law, that A was guilty of negligence contributing to his injury.</p> <p>Verdict. — Sufficiency of Evidence. — That the evidence is sufficient to support the verdict, see opinion.</p> <p>Instructions to Jury. — Personal Injury. — Expenses Incurred. — Absence of Evidence as to. — In an action for personal injuries, claiming, among other things, damages for expenses incurred, it is error to instruct the jury as if there were evidence in the case in support of such claim, when, in fact, there is no evidence showing the amount of expenses incurred.</p> <p>Same. — Erroneous.— When Harmless Error. — Special Finding. — If the special finding show that the facts on which the court erroneously instructed them did not exist, the instruction, under such circumstances, was harmless.</p> <p>Dissenting opinion by Ross, J.</p>

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

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

<p>Notice. — Summons.—Eeturn, Sufficiency of. — Corporation.—Beversal of Judgment. — Where subordinate councils of a corporation are the agents of the supreme council, and the officers of the subordinate council are its agents, and, therefore, subagents of the supreme council, service on the president, secretary and treasurer of St. Julien Council No. 89, being a subordinate council of said corporation, the Catholic Benevolent Legion, the return showing that no other superior or higher officers of the corporation were found in the county, such service is sufficient to give the court jurisdiction, and where there is nothing in the return of service to show that the persons served were the officers or agents of defendant, but such fact is shown when taken in connection with defendant’s answer, and the return might have been amended in the trial court, the cause will not be reversed for such intervening error, where the ultimate judgment is right.</p> <p>Estoppel. — Defense.—Delinquencies of Defendant's Agent. — In an action, the defendant can not be heard to interpose the delinquencies of its own agency or instrumentality to defeat the action.</p> <p>Life Insurance. — Soliciting Agent. — Power to Waive Conditions of Application. — Benevolent Society. — A soliciting agent to take applications for insurance may waive such conditions of the application as do not relate to the by-laws, and this principle applies as well to benevolent societies as to ordinary insurance companies.</p> <p>Same. — Death of Insured. — When Sufficiently Established. — Evidence.— The fact that the insured went to the lake to bathe, the finding of his wearing apparel near by, the footprints in the sand leading to the water, the dangerous condition of the bottom of the lake at that point, together with the unexplainable absence and failure of the insured to return, all tend to prove death by drowning, and the jury might legitimately infer death by such means.</p> <p>Same. — Evidence.—Death of Insured. — Drowning of Others at Same Place. — In such case, evidence that other persons were drowned at the same place is admissible as tending to show that the place where the insured went to bathe was dangerous.</p> <p>Assignment of Errors. — Joint Assignment. — Instructions to Jury.— An assignment of error that the court erred in giving several instructions, naming them conjunctively, can avail nothing unless all are bad.</p> <p>Yerdict. — •Sufficiency of Evidence. — The Fact of Death. — Insurance.— That the evidence is sufficient to sustain the verdict, see opinion.</p>

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

<p>Insurance. — Apportionment of Insurance Among Various Items of Property. — Liability Confined to Such Items. — Where an insurance policy provides for insurance to the amount of |1,000, and apportions the full amount on items of property insured, then in existence, and granting the assured permission “to erect a * * building to be used for warehouse and finishing rooms, * * to be insured under this policy,” there is nothing in the policy creating a liability for the building to be afterwards erected, the full amount of insurance having been exhausted on the other items of insurance, and the insurance granted upon each separate item of property named in the policy constitutes a separate contract of insurance.</p>

<p>Pleading. — Complaint.-—Personal Injury. — Negligence.—In an action for damages for personal injury, the complaint is fatally defective where it does not appear, by direct allegations or necessary inference, that the injuries complained of were the result of defendant’s negligence.</p>

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

<p>Appeal, — Cause Originating Before a Justice of the Peace. — Amount in Controversy. — An appeal can not be prosecuted from a cause originating before a justice of the peace, on a penalty prescribed by city ordinance, where the amount in controversy, exclusive of interest and costs, is less than fifty dollars, where the validity of the ordinance is not in question.</p> <p>Obdinance. — Of City. — When Validity not in Question. — Action.■—An action to recover the penalty prescribed for the violation of a city ordinance does not necessarily call in question the validity of the ordinance.</p>

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

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

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

<p>Taxes. — Action to Recover Those Illegally Assessed and Collected. — Distribution of Same to Various Funds After Commencement of Action.— Liability of County. — When A filed his claim with the board of county commissioners for the refunding of $437.95 of taxes illegally assessed and collected,the same was yet in the treasury of the county, and no part had yet been distributed to or paid over to the State nor to the town (the town of Crown Point), but afterwards $62.94 of such taxes were distributed and paid to the State, as its part of said taxes; and $284.14 were distributed and paid to the town of Crown Point, as its part of said taxes. The circuit court, on appeal, from the board of commissioners, allowed $90.87 of the claim (the amount yet remaining in the county treasury), and found that A was entitled to a certificate of the board of commissioners to the auditor of State for a refunding to A of the amount paid to the State.</p> <p>Held, that A is entitled to have the amount of $375.01 (the amount remaining in the county treasury, together with the amount paid to the town) refunded to him by the county, with interest thereon.</p> <p>Held, also, that A is entitled to have the amount paid as State taxes ($62.94) refunded to him out of the State treasury, and, to that end, is entitled to have a certificate from the county board to the auditor of State for the refunding of the same.</p> <p>Same. — Wrongful Distribution of Taws Dlegally Assessed and Collected. —Liability of County. — In such case, when the county, notwithstanding the legal proceedings to recover the taxes so paid, distributed the same to the State and town authorities, it did so at its own risk and peril, and the taxpayer can not be required to pursue such funds into the hands of the parties to whom they were wrongfully distributed.</p> <p>Same. — Defense.—Voluntarily Paid. — The fact that the taxes were voluntarily paid constitutes no defense under the statute cited. '</p> <p>Same. — Trust.—Liability of County. — As long as such taxes remained in the county treasury, it was held in trust by the county either for the taxpayer or for the proper funds to which it respectively belonged ; and, when the board of commissioners received notice of the claim, the county became a trustee for the claimant, and in the event it was awarded to him, the county was bound to refund the sa.me to him.</p>

<p>Statute of Limitations. — Six Years’ Statute. — Defense.—Promissory Note. — Indorsement.—In an action on a contract of indorsement of a promissory note, the six years’ statute of limitation is not available as a defense.</p> <p>Promissory Note. — Bank Note. — Demand of Payment, What Amounts to. — Waiver.—Indorser, Liability of. — If a note-is payable in bank, it is unnecessary that payment be demanded of the maker, in the sense of making a personal or written demand upon him, in order to bind the indorser. In such case the only demand necessary is that the note be at the place designated, on the day it falls due, and there be some one there authorized to accept payment; and such presentment for payment must be made at such time, unless it is not in the holder’s power to do so by the use of reasonable diligence, or unless the necessary steps to fix the liability of the indorser are prevented by some act of his which puts the holder off his guard, in which case the holder is excused and liability attaches to the indorser.</p> <p>Same. — Indorser.—Waiver of demand. — In such case the waiver of demand, by the indorser, is a question of fact for the jury.</p> <p>Same. — Dishonored.—Notice.—Indorser.—It is the duty of the maker of a bank note to be at the bank during its business hours and pay the same; and if he fails to make payment at maturity, that fact alone is a dishonor, and the holder may notify the indorser, and thus fix his liability.</p>

<p>Estoppel. — Street Improvement. — Land-Owner.—Unless the proceedings under which a street improvement is being made are totally void, a property-owner who stands by, and, without objection, receives the benefit of the work, is estopped thereafter to question the legality of the proceedings.</p> <p>Verdict. — Sufficiency of Evidence. — That the evidence is sufficient to sustain the verdict, see opinion.</p>

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

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

<p>Railroad. — Common Carrier. — Insurer.—Contract.—Railroad companies that undertake to carry freight for hire are insurers, and, in the absence of any stipulation to the contrary in the contract of carriage, are liable, except only when the failure to deliver occurs through the act of God or the public enemy.</p> <p>Same. — Negligence.—Contract Limiting Liability. — Loss by Mre. — Burden of Proof. — While a carrier can not by special contract exonerate itself from the consequences of its negligence, it may thus restrict its liability; and where fire, not occurring through the carrier’s fault, is a casualty against which it has contracted, and a loss to goods results from fire, the burden is upon the owner to show that the loss is attributable to the negligent act of the carrier.</p> <p>Same. — Belay in Forwarding. — Fire Communicated from Adjacent Building. — Proximate Cause. — Where a railroad company, which has contracted against liability for loss by fire, negligently delays to forward a car load of goods, and the same, while standing upon the track, is destroyed by fire communicated from a burning building, the carrier is liable if its negligence is the proximate cause of the loss.</p> <p>Same. — Delay in Forwarding Loaded Car. — Bwning of Car. — Fire Must be Caused by Carrier's Negligence. — Where a carrier has contracted against liability for loss by fire, its negligence in failing to forward a car loaded with the shipper’s goods will not render it liable, where the goods are destroyed by a fire communicated from the burning of a building situated near the track on which the car is standing, unless it be shown that the fire was caused by the carrier’s negligence.</p> <p>Same.— What is Proximate Cause. — Intervening Efficient Cause. — Where the injury follows the negligence in unbroken sequence, without an intervening efficient cause, even though the defendant could not have foreseen the particular result, the latter will be liable if he could reasonably have anticipated some injurious consequence; but it is otherwise if there be an intervening efficient cause in itself sufficient to break the causal connection between the original wrong and the injury.</p> <p>Same. — -When a Negligent Act is the Proximate Cause. — Unusual Consequences. — Where an injury results from the negligent act or omission of a defendant, such act or omission will be deemed the proximate cause, unless the consequences are so unnatural and unusual that they could not, by the highest practical care, have been foreseen and provided against.</p>

<p>Replevin. — Chattel Mortgages. — Sale, Warranty. — Separate Defenses of Several Defendants. — Inure to Benefit of All. — Where in an action of replevin against several defendants the plaintiff introduces chattel mortgages executed by the defendants, but no one of them joint as to all the defendants, and no one of them covering all the property, the separate defenses made by the different defendants for breaches of warranty made upon the sale of the goods inure to the benefit of all.</p> <p>Same. — Breach of Warranty Matter of Defense. — May Drove Under General Denial. — In such case, the breach of warranty constitutes matter of defense, and is available, under the general denial, without an affirmative plea.</p>

<p>Partnership. — Scope of Business. — Livery Stable. — Note.—Sufficiency of Evidence. — Where a partnership is formed for the purpose of conducting a livery business, the buying, selling, and bartering of horses are not transactions beyond the scope of the partnership; and where a note growing out of such a transaction purported to have been executed by the partnership, and there is evidence tending to prove that it was so executed, the verdict will not be disturbed on the weight of the evidence.</p> <p>Instructions to Jury.— When not Misleading. — Burden of Proof.— Where an instruction, after stating that the burden was on the plaintiff to establish the material allegations of his complaint, or some paragraph thereof, by a preponderance of the evidence; also, that “the burden is on the defendant to establish the material allegations of his answer [general denial and non est factum], or some paragraph thereof, by the preponderance of the evidence given in support of the same,” — the instruction, though not commendable, when construed with all the instructions given, and especially with a subsequent one stating that the plaintiff must show by a preponderance of all the evidence in the cause that defendant executed the note, or that the same was executed with his authority, before he could recover, was not misleading to the jury.</p>

<p>Bastardy. — Institution of Suit. — Defendant Absent from State. — Subsequent Service of Process. — A bastardy [proceeding may be instituted in any county of the State against a nonresident, although he may not be within the county at the time of the institution of the action, and process may afterwards be served upon the defendant if he comes within the county.</p> <p>Same. — Defendant Absent from State. — Certification to Circuit Court.— Subsequent Arrest. — Jurisdiction.—Where the defendant in a bastardy proceeding was not in this State at the time proceedings were instituted against him, and was not present either in person or by attorney, and was absent from the State for more than two years after the certification of the cause to the circuit court, but was subsequently arrested in said county on a warrant issued from the circuit court, in said cause, the circuit court acquired jurisdiction of the defendant.</p>

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

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

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

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

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

<p>Beal Estate. — Sale.—Growing Crops. — Parol Beservation. — Growing crops are in the nature of personal property, and upon a sale of the land may be reserved by parol.</p> <p>Same.— Evidence. — •Consideration.—Parol evidence is admissible to show a reservation of growing crops as a part of the consideration of the sale of land.</p> <p>Practice. — Exception.—Appeal.—In the absence of an exception to a ruling, no question relating thereto is available on appeal.</p> <p>Same. — Exclusion of Testimony. — Scope ofBuling. — Where an objection to part of offered testimony is sustained, error can only be predicated upon the ruling within its scope.</p> <p>Yeedict. — Clerical Error. — Objection to Form. — The use, in a verdict, of the word “defendant” for “defendants” is not a material defect where it appears that it is a mere clerical error, and that no objection to the form of the verdict was made before the discharge of the pry.</p> <p>Same. — Surplusage.—An unnecessary finding in a verdict will be treated as surplusage, and it can not be made the basis of available error.</p> <p>Appellate Court Practice. — Brief.—Waiver of Errors. — Alleged errors, which are not, in a proper sense, discussed by the complaining party, will be deemed waived.</p> <p>Instructions to Jury. — Exception.—Practice.—A general exception to a ruling refusing to give a series of instructtons fails if any one of the instructions asked is bad.</p> <p>Same. — Instructions Ashed. — Not Duty of Court to Correct. — It is not the duty of a trial court to modify or correct inaccurate instructions asked by a party.</p>

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

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

<p>Appeal from Henry Circuit Court.</p>

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

<p>Deposition. — Failure to Take. — Negligence.—Liability for Costs. — If a party give notice to take depositions, and thereby require the attendance of the opposing party or his counsel, and then fail to take the deposition because they had exercised no diligence to procure the attendance of the witness, the former is liable to the penalty prescribed by section 452, R. S. 1894, upon motion and affidavit of the facts.</p> <p>Appellate Court Practice. — Presumption.—Motion and Affidavits.— Record. — Where the record shows the filing of a motion, and affidavits in support thereof, and the bill of exceptions contains such motion and affidavits, the presumption is that they are all the affidavits filed, unless the record or bill affirmatively shows that bthers not embodied in the bill were made.</p>

<p>Demubreb. — Joint Demurrer. — When Unavailable. — Complaint.—A joint demurrer to a complaint, by two defendants, can only be sustained where the complaint is bad as to both the demurring parties.</p> <p>Judgment. — Beversal.—Eight on the Evidence. — Appellate Court Practice. — If the judgment is clearly right on the evidence, it will not be reversed because of intervening errors.</p>

<p>Husband and 'Wide.' — Antenuptial Contract. — Sow Construed. — Intent. —In the construction of antenuptial contracts much liberality will be indulged to effectuate the actual intent of the parties, and in seeking the intent the courts will look not only to the letter of the instrument, but also to its general scope and purpose, and to the conditions, situation and surrounding circumstances attending the parties at the time the agreement was entered into.</p> <p>Same. — Antenuptial Contract as to Personal Property. — Life Estate. — Remainder Over. — Settlement of Estate. — Administrator’s Report. — Exceptions. — Trial.—Motion for New Trial. — Practice.—Mrs. F., a widow, was seventy years of age, childless, and without living father or mother, but having living brothers and living nephews and nieces by deceased sisters. She had real estate, and a large amount of personal property which had been acquired by her deceased husband during the time she was his wife. Mr. B., a widower, was sixty-eight years of age, and had children living by a former marriage, and was possessed of an estate very much less than that held by Mrs. F. With this condition of things before them, Mr. B. and Mrs. F., just prior to their marriage, entered into an antenuptial contract which provided that “the survivor shall take no absolute right in the real estate of the other, but shall have the full use, control and rents of all such real estate as would descend to such survivor, under the law, during the life of such survivor; and shall take and have such part of the personal property of the one first departing this life as the law would give such survivor, and if any part of such personal property shall remain at the death of such survivor, it shall go to the heirs and legal representatives of the one dying first.” The wife died intestate, the husband qualified as administrator, and later filed a final report showing a large amount of personal property in his hands for distribution. In this report he stated that he was the only heir at law of the decedent and entitled to the whole of such property, as absolute owner. He alleged that the brothers of the decedent and the children of her deceased sisters claimed an interest in the property, and on his application they were made parties to the proceeding, he denying that they had any interest, and asking a judgment establishing his ownership. The defendants filed exceptions to the part of the report asserting absolute ownership in the surviving husband, and alleged that he only took a life estate in the personal property. Upon a hearing it was adjudged by the trial court that the husband was the absolute and unconditional owner.</p> <p>Held, that, construing the antenuptial contract as a whole, and in the light of surrounding circumstances, the surviving husband took only a life estate in the personal property, with such power of disposition as might be necessary to the full enjoyment thereof, with remainder over to the wife’s heirs.</p> <p>Held, also, that a motion for a new trial was the proper practice for saving the question for decision, a motion to modify the judgment not being necessary.</p> <p>Evidence. — Agreed Statement. — Introduction.—Use of Word “Offered” Instead of “Given.”- — Judge's Certificate to Bill of Exceptions. — Where the parties to an action agree upon the evidence, reduce it to writing and sign it, and in presenting the agreement to the court the word “oSered” is used, but the judge certifies that the evidence contained in the bill of exceptions was “given,” it sufficiently appears that the evidence offered was introduced and given.</p>

<p>Evidence. — Death of Agent and Witness of Defendant Does Not Disqualify Plaintiff as to Transactions Between Them. — The fact that an agent of defendant, with whom plaintiff had made oral contracts concerning the matter in controversy, is dead, and his deposition not having been taken, is not sufficient to disqualify the plaintiff from testifying concerning such contracts, and does not come within the rules laid down in sections 506 and 507, K. S. 1894.</p>

<p>Agency. — Agent Acting in Apparent Scope of Authority. — Unknown Limitation. — The public, in dealing with an agent (railroad station agent) acting within the apparent scope of his authority (agreeing to furnish cars to a shipper at a specified time), have the right to rely upon his apparent authority, notwithstanding some unknown limitation upon it.</p>

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

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

<p>Master and Servant. — Knowledge by Master of Defective Machinery.— Knowledge Actual and Imputed. — When Sufficiently Alleged. — Case Distinguished. — Where a servant is injured by reason of defective machinery, the master is chargeable not only with knowledge which he actually possessed, but also with that knowledge which, by the exercise of reasonable care and diligence, he might have acquired, and no specific allegation of failure to inspect is necessary to bring the question of imputed knowledge into the case. Chicago, etc., R. R. Co. v. Fry, Admx., 131 Ind. 319, distinguished.</p> <p>Same. — Respective Duties when Defect is Latent, When Obvious.— Where the defect is open and obvious, both the master and servant are chargeable with notice of its existence, but where it is latent, they are not equally chargeable with knowledge of its existence, although they have equal opportunities to ascertain it; for it is the duty of the master (which it is not of the servant, unless expressly imposed by the terms of employment) to search for defects.</p>

<p>Railroad. — Passenger Alighting Prom Moving Train. — Contributory Negligence. — Personal Injury. — It is not an act of ordinary prudence for a passenger to leap from a train, in the darkness of night, when the train has passed the proper station and is running at an increasing rate of speed, all of which the passenger was aware of while he was yet upon the platform of the car, and before he had begun to descend the steps for the purpose of alighting.</p>

<p>Prom the Wabash Circuit Court.</p>

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

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

<p>Railroad. — Receiving Goods to be Delivered to Connecting Carrier.— Liability. — In the absence of a special contract as to goods received by a common carrier, marked for a point beyond its line, the obligation of the carrier is nothing more than to transport safely to the end of its line and then deliver to the connecting carrier, to be forwarded to the point of destination.</p> <p>Same. — Freight.—Overcharge.—Sufficiency of Complaint. — Ownership.— In a complaint which alleged that the defendant railroad company agreed to carry certain goods for plaintiff for a reasonable reward, to be paid by plaintiff, and that the railroad company exacted an overcharge from the consignee, who in turn deducted the same from the price of the goods, the ownership of the goods was immaterial, the material question being who paid the freight.</p> <p>Sam:e. — Action for Overcharges. — Necessary Allegations. — Defense.—In an action for overcharges for freight, in excess of the contract price, it is unnecessary for the plaintiff to negative in his pleading all the other sources from which appellant might have acquired a rightful claim against him for the amount of the alleged overcharge. If the collection of the additional sum was justified by any other cause, it was matter of defense.</p>

<p>Contract. — Railroad.—Sale Under Foreclosure of Mortgage. — Liability of Purchaser. — Where a decree foreclosing a railroad mortgage provides that any purchaser may, before a deed is executed to him, abandon or disclaim a contract executed by the mortgaging company subsequent to the mortgage by giving written notice thereof to the commissioner making the sale, a compliance with the provision by the purchaser, and the execution of a deed making the foreclosure proceedings a part thereof by reference, carries the property to the purchaser free from any liability under the contract, unless such contract be subsequently accepted and ratified.</p> <p>Same. — Acceptance and Ratification — Where, in such case, the contract is between the mortgaging company and manufacturers and provides for use of a private track leading to the factories, in consideration for which a greatly reduced freight rate is made to the latter, between certain points, the use of the track by the purchasing company in common with other railroad companies, in delivering freight, but without claiming any right thereto under the contract, or assuming any special contract thereof, but on the contrary at all times demanding the current freight rate, which is largely in excess of the contract rate, does not amount to such an acceptance of the contract as binds it to the rate therein fixed.</p>

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

<p>Witness. — Action by Executor. — Deposition of Deceased Party. — Putting in Evidence. — Competency of Adverse Party. — Under section 498, E. S. 1881 (section 506, E. S. 1894), the adverse party to an action in which an executor or administrator is a party, is competent to testify as to matters embraced in a deposition of the decedent on file in the case, and which can be used as evidence, and to bring the deposition and its contents to the knowledge of the court, and to enable such party to testify as to the matters therein, it is proper for him to put it in evidence if the other side fails to do so.</p>

<p>Master and Servant. — Bailroad.—Car.—Latent Defects. — Knowledge of. — A complaint showing that the plaintiff’s decedent, the foreman of a crew in charge of a “derrick car,” was killed, without his fault, in an accident caused by latent defects in the car, not discoverable without a close inspection, and of which the employe had neither knowledge nor opportunity to acquire knowledge prior to the accident, is good upon demurrer.</p> <p>Same. — Buies Delating to Employes. — Inspection of Machinery, etc.— Contributory Negligence. — 'Wham a railroad company has adopted a rule requiring every employe to see for himself, before using them, that the machinery, tools and material provided for him, or subject to his management or use, are in proper condition for the intended employment, the mere fact that an employe is in charge of a derrick car and of the crew operating the same will not justify the court in adjudging, as matter of law, that such employe is guilty of contributory negligence in failing to discover latent defects in the car which brought about an accident in which he was killed.</p> <p>Same.— Tendency of Timber to Decay.- — Master Chargeable with Knowledge. — Negligence.—A railroad company is chargeable with knowledge of the tendency of the timber in its cars to decay, and where it knows, or, by the exercise of reasonable care, can discover, that a car in use by its employes is unsafe by reason of decay, it is chargeable with negligence.</p> <p>Same. — Damages.—What Not Excessive. — Upon the facts of this case, three thousand dollars are held not to be excessive damages for the negligent killing of an unmarried youth nineteen years of age.</p> <p>Special Verdict.— Venire De Novo. — Practice.—Findings of evidence, conclusions of law, and matters outside of the issues, in a special verdict, are not grounds for granting a venire de novo.</p> <p>Same. — Negligence.—Freedom from Fault. — In an action for personal injuries alleged to have been negligently caused by the defendant, if a special verdict shows, upon considering all the facts found, that the plaintiff was not at fault, it is sufficient, as to that matter, to support a judgment for the plaintiff.</p>

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

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

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

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

<p>Practice. — Cause Originating Before Justice of Peace. — Sustaining Demurrer to Answer. — The sustaining of a demurrer to an affirmative paragraph of answer in an action originating before a justice of the peace is not available error, as such facts were provable withoutbeing specially pleaded.</p> <p>Evidence. — Contract.—When not Provable by the Terms of Other Contracts. — In an action to recover for the services of a stallion it is not competent to prove the terms of contracts made with other persons as to such service for the purpose of establishing the contract in this case.</p> <p>Appellate Court Practice. — Court will not Search Secord for Errors not Pointed Out. — -Where reference is not made to the pages and lines of the record where alleged error may-be found, the court will not search the record for them.</p> <p>Instructions to Jury. — Instruction Defused Given in Substance in Other Instructions. — There is no available error in refusing an instruction where it is given in substance in other instructions.</p>

<p>Appellate Court Practice. — Sufficiency of the Evidence. — Issues.— The appellate tribunal can not pass upon the sufficiency of the evidence, where the record does not disclose the questions at issue, the answer not being set out in the record.</p>

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

<p>Decedents’ Estates. —Administrator.—Confession of Judgment. — Costs. —An administrator has no power, except by permission of court, to allow judgment to go by confession, and, hence, an offer by the administrator, without leave of court, to confess judgment, can in nowise affect liability for costs.</p>

<p>Pleading. — Beply.—Accord and Satisfaction. — Sufficiency.—The following paragraph of reply was made to an answer by way of set-off based on a note for $150: “Plaintiff, for * * reply to defendant’s * * answer herein, says that on the-day of June, 1887, the plaintiff sold and delivered to the decedent [plaintiff’s action being on a claim against an estate] a span of mules, for the sum of $390, and that $150 of said purchase-price was to have been applied in full accord and satisfaction of the note set out in defendant’s * * answer herein, and that said decedent accepted the same in full payment of said note, and promised to pay plaintiff the balance due her, which still remains due and unpaid.”</p> <p>Held, that the facts pleaded in the reply do not constitute a good accord and satisfaction, and do not constitute a bar to an action on the note.</p>

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

<p>Master and Servant. — Assumption of Risks Incident to Service. — Personal Injury. — Obvious Danger. — Oravel Pit.- — Where a servant enters upon an employment which is from its nature necessarily hazardous, he assumes all the usual risks and perils incident to the service ; and where the danger is alike open to the observation of all, both the master and the servant are upon an equality, and the master is not liable for any injury resulting from the dangers incident to the business. A servant employed to mine gravel in a pit assumes the risk of an overhanging bank composed of black, loose and brittle loam caving in on him, where, if he had used his sense of sight, he could have seen the danger.</p>

<p>License. — Public Use of Lot as Roadway. — Revocation of License.— Dangerous Obstruction.— Warning to Public. — Negligence.—Where a lot owner has permitted the public to travel, in vehicles and otherwise, over his lot for a considerable time, until there was a well defined way across the lot, indicating that the public were in the habit of driving across the same, it amounted to a license to the public to cross the lot, and the lot owner was bound to take notice of it. If, in such case, there has not been a dedication of the way, the lot owner has the right to forbid the further use of the way, and to fence his property, but he must do so in a manner not calculated to injure those who attempt to continue to use the way without any knowledge of such revocation or of the barrier erected. To stretch a barbed wire across such way, without anything to warn the traveler of its existence, is not a discharge of the duty which such lot. owner owes to the public, and is negligence.</p>

<p>Railroad. — Damages to Land by Fire. — Negligence.—Proximate Cause w —Intervening Agencies. — If a railroad company negligently suffer fire to escape from its engines, and to communicate with combustible materials negligently permitted to accumulate on its right of way, and if it negligently suffer the fire to escape from its right of way and to the farm of the plaintiff, destroying his fences, etc., the defendant company will be held to respond in damages, notwithstanding there were intervening farms over which the fire had escaped to plaintiff’s farm.</p> <p>Same. — Damage to Land by Fire. — The fact that railroad men and others, immediately after the fire had escaped from the right-of-way, did all in their power to arrest its progress, can not relieve the railroad company from liability.</p> <p>Interrogatories to Jury. — Rejecting.—Practice.—It is not error for the court to refuse to propound to the jury interrogatories which called for answers that amounted to mere legal conclusions upon evidentiary facts.</p>

<p>Life Insurance. — Complaint, Sufficiency of. — A. O. TI. W. — Nonpayment of Assessments. — Suspension or Forfeiture. — Reinstatement.— Conditions. — Where the complaint of a beneficiary alleged that her insured, a member of the A. O. U. W., carrying a life policy for $2,000, was suspended for nonpayment of assessments, and the by-' laws provide that such member, if living, “may renew the same at any time within three months from the date of the forfeiture, provided : 1st. All assessments that have been made during that time shall be paid. 2d. This fact shall be reported to the lodge at a stated meeting. 3d. The lodge shall, by a majority vote, declare said certificate renewed,” and the complaint shows that the insured performed all the conditions on his part to be performed to effectuate such renewal and reinstatement, except where performance was rendered impossible by the act of the defendant, and the insured died under such circumstances, the complaint states a cause of action on the policy, and was sufficient on demurrer.</p> <p>Same. — Suspension of Member. — Reinstatement.—Tender of Dues and Assessments. — Refusals—Right of Recovery. — Where, in such case, the financial officer of the subordinate lodge of which the insured was a member refused to accept money in payment of all the insured’s dues and assessments then due, because the insured was then in a dying condition, and reported the same to the lodge at a stated meeting, and no action was taken thereon by the lodge, the suspension having been rightful, the right of the insured to reinstatement was not absolute, but qualified, depending upon the affirmative action of the lodge; and had the financial officer accepted such assessments and dues, the lodge would not have been compelled to reinstate him, such act being a discretionary one vested in the members of the lodge, and, under such circumstances, the beneficiary can not recover on the policy.</p>

<p>Highway. — Street.—Improvement of Sidewalk. — Lien.—■Statute Construed. — The act of 1859, relating to the improvement of sidewalks, was not repealed by the act of 1889, relating to the same subject, and a lien may be enforced under the act of 1859, by the city, for improvements made under such act.</p>

<p>Defense. — By one Maker of a Note. — When Inures to Benefit of all Defendants. — No Bight to Becover at all. — If one of the persons who executed a note establish a defense which would defeat plaintiff’s right to recover at all, such defense inures to the benefit of all the other defendants, whether they individually made such defense or not.</p> <p>Promissory Note. — Surety Signing After the Incurring of the Original Obligation, and Without New Consideration. — A party who signs a note as surety, after the incurring of the original obligation, without any new or distinct consideration passing therefor, is not liable.</p> <p>Verdict.- — Sufficiency of Evidence. — That the evidence is sufficient to sustain the verdict, see opinion.</p>

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

<p>Railroad. — Expulsion of Passenger.— Ticket.— Validity of. — Evidence. —Where, in an action by a passenger to recover for an expulsion from a train, there is a question upon the trial as to the validity of the ticket offered by the passenger, it is competent for the conductor of the train to testify as to whether or not such ticket was, as to size and shape, such as was issued by the defendant during the period within which it was claimed to have been purchased.</p>

<p>Guaranty. — Debtor and Creditor. — Composition.—Fraud.—Nonseparable Contract. — Where, upon an assignment by a debtor for the benefit of creditors, a composition with the creditors is arranged, and one creditor, without the knowledge of the others, who are unsecured, procures, in consideration that he shall sign the composition agreement, a guaranty securing his existing claim and providing for future credit, such guaranty is fraudulent and unenforceable both as to existing and subsequent indebtednesses.</p>

<p>Principal and Surety. — Question of Suretyship. — How Tried. — Pleading. — In an action upon a promissory note, a question of suretyship can be tried only by the filing of a cross-complaint and the formation of issues thereon. If a pleading amounting to a cross-complaint is filed, it is sufficient, although denominated an answer.</p> <p>Same. — Appearance.—Process.— Void Judgment. — Where, in an action against several persons upon a promissory note, one of the defendants files a pleading alleging that he is surety, and that all the other defendants are principals, a judgment to such effect is void as to a defendant who is a co-surety, if the latter neither appeared to nor was served with process under such pleading.</p> <p>Same. — What is Not an Appearance. — Default.—Where the record shows no official act in behalf of a defendant, such as the making or arguing of a motion or the filing of a paper, but does show that the defendant was defaulted by the plaintiff, it will be taken as conclusive that there was no appearance by such defendant, either to the complaint or to the cross-complaint of another defendant alleging suretyship.</p> <p>Same. — Contribution.—Insolvent Surety. — Where one of several sureties has paid the whole debt, he may, in a suit for contribution against another solvent surety, recover one-half the amount paid upon a showing that the other sureties are insolvent.</p> <p>Judgment. — Agreement as to. — Finding.—A party before the court may bindingly agree to the form of a judgment, but a mere finding of evidentiary facts bearing upon the question of such an agreement is not, in the absence of a finding of the ultimate fact that there was such an agreement, sufficient to show that the party is concluded.</p>

<p>Parent and Child. — Recovery for Services. — Contract.—Declarations Upon Express Contract. — Quantum, Meruit. —Under a complaint brought by a son against his father to recover upon an express but non-special contract for services rendered there may be a recovery upon a quantum meruit upon proof of an implied promise.</p> <p>Same.. — Existence of Contract a Question for the Triers. — Rule Upon Appeal. — In an action by a son against his father to recover for services rendered, a judgment in favor of the plaintiff will not he disturbed on appeal if there is any evidence tending to establish an express contract, or circumstances from which it may be inferred that there was an agreement or understanding that compensation was to be made.</p>

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

<p>Prom the Monroe Circuit Court.</p>

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

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

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

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

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

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