Volume 100 — Indiana Reports

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

<p>Warehouseman. — Evidence.— Unsigned Memoranda. — In an action against a warehouseman to recover for damages to eggs stored in his warehouse, unsigned slips of paper upon which were written by plaintiff’s employees the number and quality of eggs in each barrel when stored, and also the relative number of good and bad eggs when they were withdrawn from storage, and which were then reported to plaintiff’s book-keeper, and a. synopsis of each entered upon his books, do not constitute the best evidence of such facts, and parol evidence thereof is admissible.</p> <p>Same. — Measure of Damages. — Instruction.—In such case, an instruction, which, in effect, tells the jury that in making up the amount of damages, in the event of a finding for the plaintiff, the eggs should be estimated at the highest market price which the plaintiff could have obtained for them, at the time they were injured, is erroneous, as they should be estimated according to their market value in the locality where they were injured, and, if the time be indefinite and the market fluctuating, the average range of prices would be the proper standard of their market, value.</p> <p>Evidence.— Witness. — Expert.—Time.—Remoteness.—Discretion of Gourt. — ■ Where B. is called as a witness by the defendant to impeach the competency of F., a witness for plaintiff, in a particular employment, and it is proposed to prove by B. that three or four years previously F. had been in his service, and that he was neither an expert nor a competent-person for such particular employment, the trial court may exclude-such testimony as too remote, as in such cases the remoteness or proximity of the time rests very much in the discretion of the nisi prius court.</p> <p>Same. — Proof of Reputation. — Particular Employment. — Proof of reputation • is not admissible to show what a party’s relations are to a limited number of persons, or wh%t his qualifications maybe for.some merely private pursuit, or whether he is skilled in some particular employment.</p>

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

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

<p>Highway. — Location.—Petition.—Jurisdictional Fact — Appeal. — Practice.— In a proceeding for the location of a public highway, the fact whether the petition was signed by twelve freeholders, six of whom resided in the immediate neighborhood of the proposed highway, is jurisdictional, and the finding of the board of commissioners on that subject is conclusive. Objection to the petition for such reason can only be made before the board, before viewers are appointed, and it can not be made in the circuit court on appeal.</p> <p>¡Supbeme Court. — Improper Argument of Counsel. — Bill of Exceptions. — Presumption. — Practice.—Where alleged improper remarks of counsel to the jury are not preserved in the record by bill of exceptions showing that they were objected to, or what action the court took with respect to them, the Supreme Court will not consider them, hut will presume, nothing appearing in the record to the contrary, that if the remarks were inappropriate, the trial court in some way set the-matter right.</p> <p>¡Same.- — Judgment.—Motion.—Where there is no bill of exceptions in the record showing that objection was made to the order and judgment of the trial court, or any motion to modify or-change it, no question in relation thereto is properly before the Supreme Court.</p>

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

<p>Promissory Note. — Party in Interest. — Plea in Bar. — In an action on a promissory note by the endorsee, a verified answer by the makers, admitting the execution of the note, but alleging that the payee was still the owner thereof, and that the plaintiff had no interest in it other than as the agent and trustee of the payee, who was the real party in interest, and that the note was assigned to the plaintiff only for the purpose of collection, is a plea, not in abatement, but in bar.</p>

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

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

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

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

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

<p>Guaranty. — Notice.—Lease.—Pleading.—Demurrer.—A guaranty^ written upon a lease and delivered with it, which recites that in consideration of the making of the lease and agreement that security should be given for the performance of the agreements contained therein on the part of the lessee, “ I hereby undertake and agree to and with ” the lessors, that the lessee “ will do and perform ail his agreements in said lease by him to be done and performed,” signed by the lessee and the guarantor, is one of strict guaranty, and, as such, makes it the duty of the guarantee to give notice to the guarantor of the default of his principal; but the giving of such notice is not a condition precedent to the guarantee’s right to maintain an action against the guarantor, and the complaint, to withstand a demurrer, need not aver notice, nor does the failure to give notice discharge the guarantor from liability except to the extent of damages he may suffer thereby, and this must be set up in defence.</p> <p>Same. — Matter of Defence. — If the failure of the lessors to be present at the end of the lessee’s term to accept the surrender of possession is available to the guarantor at all, it can only be made so by answering that fact, coupling it with such other facts as would show injury to him; so, also, if the guarantor is injured by the subsequent conduct of the lessors in prosecuting suits against the lessee, or by accepting payment of damages, such facts are matters of defence.</p>

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

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

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

<p>Assignment on Ebbob. — Practice.—A joint assignment of error, in the Supreme Court, by two or more appellants, can not be sustained, unless it is well assigned by all.</p>

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

<p>Pim Insurance. — Application.—Pleading.—Complaint.—Exhibit.—The application for a policy of life insurance need not be filed with the complaint in an action on the policy.</p> <p>Same. — Disease.—Answer.—Demurrer.—Where an answer fo a complaint on a policy of life insurance avers that the insured answered “No” to the question in the application, “ Has any near relative been afflicted with or died of consumption,” etc., whereas he had had near relatives who were afflicted with and had died of such disease, but does not name them or state the degree of relationship, it is insufficient on demurrer, as stating a conclusion of law.</p> <p>Same. — Contract of Insurance, Pom Construed,. — Interrogatory to Applicant.— Ambiguity. — A contract of life insurance should be liberally construed,. with a view to effectuate its purpose, and, if there be any ambiguity in an interrogatory propounded to the applicant, or if it be capable of more than one answer, it should be construed most strongly against the insurer, and most favorably to the insured, in whose favor all doubt should be resolved.</p> <p>Samé. — Partial Answer.— Warranty. — General Provisions of Application. — If the answer given by the applicant to an interrogatory be in itself true, and there is no intentional suppression or omission or fraud on his part, though the question be such as to suggest a fuller-and more detailed answer, yet, if the insurer be content with the partial answer, he can not claim a warranty extending beyond sn ch partial answer; nor can general provisions following the questions and answers in the application make this otherwise.</p> <p>'Same. — Evidence. —Physician. —Privileged Communication. — Waiver. — Beneficiary. — Under section 497, B. S. 1881, relating to privileged communications, a physician can not, in an action by the beneficiary on the policy, when objection is made by the plaintiff, testify as to his professional attendance on the insured before the date of his application for insurance ; this privilege, however, creates no absolute incompetency, and it may be claimed or waived by the beneficiary, but the production in evidence, by such beneficiary, of facts learned in a professional capacity by one physician, is not a waiver of the right to object to the divulging of other confidential communications by other physicians.</p> <p>Same. — Declarations of Insured. — Bes Gestee. — Hearsay.—Breach of Warranty_ —The declarations of the insured, made some time previous to his application for insurance, and not shown to have been parts of the res gestae of any acts or facts indicating a diseased condition of the insured, which the declarations tend to explain, can not prove or tend to prove the fact of his ill health, but constitute mere hearsay, and, as such, are not admissible against the beneficiary, to show a breach of warranty.</p> <p>Same. — Burden of Proof. — Where the defendant, in such case, pleads in answer that the insured made an untrue answer to a certain question contained in the application, the burden is on him to establish such fact.</p>

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

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

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

<p>Malicious Prosecution. — Instruction.—Malice.—Probable Cause.^ln an action for malicious prosecution, an instruction informing the jury that malice may be inferred from the want of probable cause, but that the want of probable cause can not be inferred from malice, is right.</p> <p>Same. — Evidence.— Witness. — Impeachment, Credibility After. — In such case, if the defendant testifies as a witness, and impeaching testimony, regarding his reputation for truth and veracity, has been offered against him, it is not erroneous for tlie court to instruct the jury that they are to determine his credibility under all the facts and circumstances as proved, and that if he “ gave a fair, candid and honest statement ” of the whole transaction in controversy, they should not disregard his testimony.</p>

<p>Pleading. — Argumentative Denial. — Demurrer.—A pleading which contains an argumentative denial of material allegations in the pleading to which it responds, is good on demurrer.</p> <p>"Wateecoukse. — Obstruction of. — License.—Consideration.—Argumentative Denial. — Demurrer.—Complaint, alleging that plaintiff and defendant were owners of adjoining lands through which flowed a natural watercourse; that plaintiff, with the knowledge of defendant, expended $1,000 in tile drains leading into such watercourse on plaintiff’s land ; that defendant unlawfully filled up and obstructed said watercourse, whereby plaintiff’s land was irreparably damaged, etc. Answer, that the obstruction complained of was not of a natural watercourse, but of an artificial outlet to ponds of water, made by plaintiff with license of defendant, which license was granted without consideration, and was afterwards revoked, and the outlet filled up, and that defendant did not obstruct the natural outlet of said ponds.</p> <p>Held, that the complaint was sufficient on demurrer.</p> <p>Held, also, that the answer averred facts constituting an argumentative denial, and was good on demurrer.</p> <p>Same. — Estoppel.—In such case, if any act was done, or money expended, on the faith of such license, the effect of which would be to prevent the revocation thereof, it should be pleaded.</p>

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

<p>Railroads. — Principal and Agent.— Liability for Acts of Agent. — Torts.— Where a corporation employs an agent to detect and arrest offenders against its property, and such agent, acting within the general scope of his employment, arrests an innocent man, such corporation is liable therefor, although the particular act was not directly authorized.</p> <p>Same. — Evidence.—Declarations of Agent. — In an action by the injured person- for damages, he may give in evidence the declarations of the agent made at the time of the arrest.</p> <p>Malicious Prosecution.— Good Character of Plaintiff. — -Evidence of the good character of the plaintiff, in actions for malicious prosecution, is competent.</p> <p>Same. — Evidence.— Probable Cause. — Evidence of information received before preferring the charge, by the person who institutes a prosecution for a criminal offence, and tending to establish the guilt of the person prosecuted, is competent as to the question of probable cause, but evidence of information received after the charge has been preferred is not.</p> <p>■Same. — Province of Court and Jury. — Instructions.—Hypothetical Statement.— In an action for malicious prosecution, if the facts are not disputed, the court must decide as matter of law, whether they constitute probable cause; but where the facts are. disputed the court must hypothetically state the material facts which there is evidence fairly tending to prove, and positively direct as to the law thereon, leaving to the jury to determine the existence or non-existence of the facts.</p> <p>Incomplete Instructions. — Instructions which profess to fully state the law upon a particular subject, but which omit some material fact, essential to the validity of the hypothesis, may be properly refused.</p>

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

<p>Cbiminal Law. — Gaming.—Indictment.—Duplicity.—Motion to Quash. — An indictment under section 2079, R. S. 1881, charged that one D., on, etc., “was the keeper, manager and tenant occupying a certain building, * * and did then and there * * unlawfully and knowingly permit and suffer” certain persons “to be and remain, playing and gaming therein at the unlawful games of faro and poker, * * for money, ® * and did then and there, on,” etc., “ unlawfully keep said building to be used and occupied for gaming, contrary,” etc. On motion to quash,</p> <p>Held, that the indictment is not bad for duplicity.</p> <p>■Same. — In such case, where the offences charged were committed by the same person, at the same time, and as a part of the same transaction, and subject the offender to the same punishment, they may be joined •conjunctively in one count as one offence.</p>

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

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

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

<p>Mastee and Seevant. — Fellow Servant. — Liability of Master.— General Buie. —As a general rule, the common master is not liable to a servant for an injury caused by the negligence of a fellow servant engaged in the same line of employment.</p> <p>Same.— Who are Fellow Servants. — Servants serving a common master in the same line of employment are fellow servants, although some may he superior to others.</p> <p>Same. — Alter Ego. — -When Master is Liable. — Where a non-resident corporation entrusts to a superior resident officer, or agent, the duty of superintending the machinery of its factory and of managing its business, it is responsible to a servant who suffers an injury from unsafe or defective machinery upon which the servant is employed, under the control and. direction of such officer or agent.</p> <p>Same. — Agent Bepresenting Master. — Delegation of Master's Duties. — Where the master delegates to an agent the performance of duties which the law devolves upon him, the agent stands as the representative of the master, and a servant may maintain an action for injuries caused by the negligence of the agent in matters in which he performs the duties of the-master and is his representative.</p> <p>Same. — Duty of Master to Provide Safe and Suitable Machinery. — It is the duty of the master to use ordinary care and diligence to provide safe and suitable machinery for use by the servants whom he employs to work upon it-</p> <p>Same. — Duty to Keep Machinery in Safe Condition. — The master’s duty does-not end with providing safe and suitable machinery, but he is also hound to exercise a reasonable supervision over it, and to exercise ordinary care in keeping it in safe condition for use by his servants, and this duty he can not rjd himself of by casting it upon an agent.</p> <p>Same. — Degree of CareBequired of Master. — It is only ordinary care that is required of the master, but ordinary care requires that he should take notice of the liability of a rope to become worn and unsafe from age and use.</p> <p>Same. — Measure of Damages. — In computing damages, it is proper to take into consideration the pain and suffering endured by the injured servant, the expenses incurred for medical attention, the permanent effect of the injury, and its effect upon the ability of the injured person to earn money, or to pursue his trade or profession.</p> <p>Same. — Excessive Damages.— Verdict. — The appellate court will not interfere with the verdict of the jury in such a case as this on the ground that the damages are'excessive, unless they are such as to induce the belief that the jury acted from partiality, prejudice or corruption.</p> <p>Same. — Contributory Negligence. — Where the evidence upon the question of contributory negligence is conflicting, or the inferences to be drawn from it are doubtful or not clear, the court will not decide, as a matter of law, whether there was or was not contributory negligence, but will, under proper instructions, leave the question to the jury as one of fact.</p> <p>Same. — Obeying Directions of Vice-Principal. — A servant can not, as matter of law, be deemed guilty ’of contributory negligence because he changes from one part of the machinery to another in the shop where he is employed, in obedience to the directions of the agent set over him by the master.</p> <p>Evidence. — Exhibition of Injured Hand to Jury. — It was not a material error to permit the plaintiff in the course of his testimony to exhibit his injured hand to the jury.</p>

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

<p>Practice. — Striking out Pleadings. — New Trial. — -That a pleading or part thereof has been erroneously struck out, is not cause for a new trial; such ruling can only be presented to the Supreme Court by an assignment of error founded thereon.</p> <p>Injunction. — City.—Streets.—Where a city is about to take land for a street wrongfully, under color of right, without assessment and tender of compensation, the owner may have injunction.</p>

<p>City. — Power over Streets. — Railroad Tracks. — Running of Trains. — Security of Citizens. — Non-Exercise of Legislative Power. — Liability for Personal Injury. — Under section 3161, E. S. 1881, the common council of an incorporated city has exclusive power over the streets, highways and alleys within such city, and may grant a railroad company the right and privilege to lay down and use railroad tracks over, along or across such streets, highways or alleys. Under the forty-second clause of section. 3106, E. S. 1881, such common council may provide, by ordinance, for the security of citizens and others from the running of trains through the city, and, to that end, may require such railroad company to provide and use suitable safeguards at the intersections of streets, highways or alleys, or elsewhere, within such city; but such city is not liable in damages for injuries to persons or property, which may result from the-non-exercise of such legislative power by its common council.</p> <p>Railroad. — Negligence.—Proximate Cause. — Intervening Agency. — Sufficiency of Complaint. — In an action to recover damages for the death of the plaintiff’s testator, caused, as alleged, by the defendants’ negligence, there is. no error in sustaining a demurrer to the complaint, where it appears, upon its face, that such negligence was not the proximate cause of such death, but that it resulted directly from the act of an intervening agency, over which the railway company defendant had no control.</p>

<p>Negligence. — Actionable when. — An action for negligence will only lie where the defendant was under some duty to the plaintiff which he has omitted to perform.</p> <p>Same. — Where one merely permits others, for their own accommodation, to pass over his lands, he is under no legal duty to keep them free from pitfalls or obstructions which may result in injury. Aliter, if he invite or induce such passage.</p> <p>Same. — Pleading.—Contributory Negligence. — A complaint for negligence resulting in injury, in which it fairly appears that the plaintiff needlessly took the risk of probable danger, does not sufficiently negative contributory negligence by the averment that the injury occurred “ without any negligence on the part of the plaintiff.”</p>

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

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

<p>'Contract. — Damages.—Remoteness.—In a suit to recover for the value of a table-rake to be attached to a reaper, a counter-claim, alleging that by the contract of sale the plaintiff agreed to adjust the same to the defendant’s reaper so that he could properly harvest a crop of his wheat, known by the plaintiff to be then growing, that the plaintiff could not and did not do so, whereby the defendant, being unable to procure another machine, was compelled to use it to avoid greater loss, whereby he lost 80 bushels of his wheat, of the value, etc., is bad on demurrer, the damages being too remote.</p> <p>Costs. — Recoupment.—Counter- Claim. — Suit in the circuit court on a contract for the purchase of a machine by the defendant. Answer, that the plaintiff failed so to adjust the machine as agreed, whereby the defendant suffered loss, etc. The plaintiff recovered less than $50.</p> <p>Held, that the answer, though not a counter-claim in form, was such in fact, within the meaning of section 591, R. S. 1881, and as it might be presumed that the claim was reduced below $50 by reason thereof, the plaintiff could recover costs.</p> <p>Parties. — Principal and Agent.— When Agent May Sue in his Own Name.— An agent, selling property for and by authority of his principal, on credit, and having accounted to and satisfied his principal therefor, may sue the purchaser in his own name.</p>

<p>City. — Street.—Sidewalks.—The word “street” embraces sidewalks, and the statute requiring compensation for damages resulting from a change of grade applies to changes in the grade of a sidewalk.</p> <p>Same. — Change of Grade. — Compensation for Damages. — Injunction.-—-Where a change in the established grade of a street occasions serious injury to an adjoining property, owner, he may maintain an injunction to restrain the municipal authorities from proceeding until the damages are assessed and tendered as provided by statute.</p> <p>Same. — Authority to Improve Streets. — Right to Collect Assessment for Cost of Second or Subsequent Improvement. — The authority to improve streets is a continuing one, and the corporate authorities may make a second or subsequent improvement, and collect the expense thereof from the adjoining lot owners.</p> <p>Same. — Discretion of Corporate Authorities. — Injunction.—The municipal authorities are invested with the power of determining when a second improvement is necessary, and the courts can not control this discretionary power by injunction.</p> <p>Same. — Change of Grade.— Character of Injury Resulting. — An averment in a complaint, that “the plaintiff will sustain damages, occasioned by the change of grade, in the sum of $-,” is not sufficient to entitle the plaintiff to an injunction, because it does not show that the damages will be of a serious character.</p> <p>Same. — Constitutional Law. — Consequential Damages Resulting from Change of Grade. — Consequential injuries resulting from a change in the grade of a street do not constitute a taking of private property for a public-use within the meaning of the Constitution, and a property owner can only claim damages for such injuries in cases where the right to damages is given by statute.</p>

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

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

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

<p>Supreme Court. — Bill of Exceptions. — Apparent Omission of Evidence. — Although the bill of exceptions concludes with the usual formula, “ this was all the evidence given in the case,” yet if, on the face of the bill, there is an apparent omission of evidence, the Supreme Court will not consider or decide any question which depends, for its proper decision, upon the evidence in the cause.</p>

<p>Pleading. — Complaint.—School Teacher. — Employment by School Town. — Contract. — A complaint against the school town of R., alleging the employment of the plaintiff by the defendant to teach school and a breach of the contract, is sufficient without alleging employment by the trustees of such school town, or that the town was incorporated, or that there was a board of trustees in said town.</p> <p>Same. — Account.—In such case, a paragraph of complaint founded on an account is not bad on demurrer for that reason.</p> <p>New Tbial. — Misconduct of Attorney in Argmnent. — Instruction.—A citizen of M. county was engaged to teach school in F. county, and subsequently brought suit to recover for services. On application of the plaintiff, the venue of the cause was changed from F. county to M. county, where, upon the trial of the cause, the plaintiff’s attorney in the closing argument, over the objection of the defendant, urged the jury to “stand by your own citizen,” and also, over objection and against the admonition of the court, told the jury that “the school trustees, pupils and citizens of F. county are trying to disgrace and oppress a citizen o£ M. county,” and other language calculated to prejudice the jury against the defendant. There was a verdict for plaintiff.</p> <p>Held, that this was such misconduct as entitled the defendant to a new trial.</p> <p>Held, also, that the court could not, in its instructions, cure the error.</p>

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

<p>Pbomissoby Notes. — Consideration.— Warranty of Machine, Breach of. — Notice. — Pleading.—Counter-Claim.—In an action upon promissory notes given by the defendant in payment for a harvester and binder, he answered, setting up a warranty executed by-the plaintiff’s agent, whereby the machine was “ warranted to be well made, of good material, and durable with care,” and it was agreed that if, upon one day’s trial, the machine would not work well, the purchaser should give immediate notice to the plaintiff, or its agent, and allow time to send a person to put it in order, and if it could not then be made to work well, the defendant should return it at once to the agent, and all cash and notes received in settlement would he refunded. It was alleged that the defendant, in the first harvest after he received the machine, tested it, and after vain attempts to make it run and cut, first with three horses and then with four, was compelled by its failure to work well to abandon his efforts ; that its weight upon the necks of the horses was so great as to injure them ; that it was defective in material and construction, and would not work at all; that he immediately gave notice to the plaintiff’s agent, and said agent attempted to make said machine work, and failed; that defendant retained said machine at the solicitation of said agent, and on his agreement that plaintiff would so repair it by the next harvest that it would work as warranted, and, relying upon said agreement, paid one note, not in suit; that plaintiff had wholly failed and refused to repair said'machine. Prayer for judgment for the amount of the note paid and for the cancellation of the notes in suit.</p> <p>Held, that the answer was sufficient as a counter-claim.</p> <p>Held, also, that the heavy draught and the weight upon the horses were breaches of the warranty, and the defendant was not bound to show what defect in the construction of the machine caused these results.</p> <p>Held, also, that the facts, that there was an original defect in the construction of the machine, and that the plaintiff, upon notice, attempted to remedy it and failed, gave the defendant a right of action upon the warranty, notwithstanding the stipulation for notice upon one day’s trial.</p> <p>Evidence.— Comparison with Standards not Admitted. — It is improper to permit a witness to base a conclusion as to the character of a machine, as to draught and manner of doing work, by comparison with other machines that the witness has seen, and which are not admitted to be true-, standards of excellence.</p> <p>Pbactice. — Open and Close. — Where, under the pleadings, the plaintiff is entitled to recover his whole demand without proof unless the defendant establishes his answer demanding affirmative relief, the latter is entitled to open and close the evidence and the argument.</p> <p>Same. — ■ Answers to Interrogatories — Judgment Notwithstanding General Verdict. —A judgment upon answers to interrogatories, notwithstanding the general verdict, will be rendered only when they show a fact or facts inconsistent therewith.</p> <p>Same. — Re-Submitting Interrogatories. — The trial court may refuse, without error, to re-submit interrogatories to the jury for additional answers, when any fuller responsive answers which they might return could not control the general verdict.</p>

<p>Master and Servant.— Inexperienced Servant. — Dangerous Employment.— Cauiibn. — It is the duty of a master not to expose an inexperienced servant to a dangerous service without giving.him.warning, or such instruction as will enable him to avoid injury, unless both the danger and the means of avoiding it are apparent.</p> <p>Same. — Alter Ego. —Fellow Servants. — If the master subjects the servant to the command of another, without information or caution with respect to such obligations as the master owes, the other stands in the master’s place, notwithstanding the two servants are, as regards the common employment, fellow servants. Aliter, if he defines the duty and authority of each with respect to the other, or gives instructions covering the subject of their employment, so as to give no authority to the one over the other, or so as to point out the danger of the service and the means of avoiding it.</p> <p>Same. — Equal Knowledge of Danger. — Negligence.—Where both the master and the servant have equal knowledge of 'the danger of the service required and of the means of avoiding it, and the’ servant, while engaged in the performance of the work he is set to do, is injured by reason of his own inattention and negligence, the master is not liable.</p> <p>Contributory Negdigence.— Minor. — Contributory negligence on the part of a minor will defeat his right to recover for an injury, as in the case of an adult.</p>

<p>Bailboad. — Fences.—If proper fences are built and maintained, it will make no difference, in an action by an adjoining land-owner for stock killed, whether such fences are built and maintained by the railroad company or such adjoining land-owner, or whether they are upon the right of way, .or upon the lands of such owner, with his consent.</p> <p>Same. — Agreement by Land-Owner to Fence. — Animals.—Where an adjoining land-owner expressly or impliedly agrees to build and maintain fences between his lands and the railroad, as to him the track will be regarded as fenced, and he can not recover from the company for the loss of animals which, for the want of such-fence, pass to the track and are injured or killed.</p> <p>Same. — Farm Oi-ossings. — Gates.—Negligence.—Where gates are allowed at farm crossings for the convenience of an adjoining land-owner, he is bound to keep them closed, and if he fails to do so, and his animals pass through them to the railroad and are injured or killed, he can not recover from the company on the ground that it has neglected to fence its track as required by the statute.</p> <p>Same. — Cattle-Pits.—In such case, and as to such land-owner, the company is not bound to maintain cattle-pits at such crossing.</p>

<p>Voluntary Assignment.— Possession of Goods.— Intervening Liens. — The voluntary assignment of his goods by a failing debtor, for the benefit of his creditors, where the possession of the goods is not delivered to nor taken by the assignee, will not defeat the intervening liens of attaching creditors before the consummation of such assignment by the delivery of possession of the goods to the assignee.</p>

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

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

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

<p>Res Adjudicata. — A judgment is only conclusive upon matters within the issues, and not on after-occurring facts not involved in the suit in which the judgment was rendered.</p> <p>Same. — Evidence.—It will be presumed that the questions involved in the issues in a former action were tried therein, and oral evidence of such fact is harmless.</p>

<p>Pleading. — Joint Demurrer. — Parties.—A party against whom a cause of' action .is shown can not demur to the complaint because no cause of action is shown against some other defendant. And so, where there is-a joint demurrer, and a cause of action is shown against any one of the parties demurring, the demurrer must be overruled.</p> <p>Parties. — Joint Interest of Plaintiffs. — Where there are several plaintiffs, a joint interest in each and all of them must be shown, in order to a. recovery.</p> <p>Decedents’ Estates.— When Heirs may Collect Debts. — Where there is no> administration, and there are no debts to pay, the heirs may collect the1 debts payable to their deceased ancestor.</p> <p>Costs. — Postponement of Trial. — Judgment.—A preliminary judgment against defendants on a motion to postpone trial to a day in term, for all the costs, of the term, is erroneous. It should be only for the costs caused by the delay.</p>

<p>Railboads. — Consolidation.—Public Policy. — Under tlie statutes of this State, railroad corporations may acquire by purchase, or consolidate with, other connecting or intersecting lines; and the organization of a railroad corporation, with the view of ultimately consolidating, upon equitable terms and in accordance with the provisions of the statute, with one already existing, is not against public policy.</p> <p>Same. — Buying Stock in other Roads.— Ultra Vires. — A railroad company, having power to consolidate with connecting or intersecting lines, may, under the statute, with a view to accomplishing such consolidation and carrying out the object for which it was created, purchase the stock of such other roads.</p> <p>Same. — Equity.—Estoppel.—Persons who constituted a majority of the directors when such purchase of stock was made, can not be heard in equity to question the validity of such purchase.</p> <p>Same.— Transfer of Stock. — Sureties. — Indemnity. — A railroad company, merely organized, but without means or credit, purchased stock of another company., giving its notes therefor with sureties, the stock purchased being" held by one of the sureties for indemnity. It failed to pay its notes at maturity, and. its stockholders prevented the making of assessments or calls upon themselves to provide a fund for such payment, the stock purchased then being of less value than was supposed when the purchase was made. Thereupon an arrangement was made by the concurrence of the purchasing company and its sureties, some of whom were its directors, whereby an association of men, including said sureties, took, in good faith, a transfer of the stock, paying therefor the notes which had been given for it.</p> <p>Held, that the transfer of the stock was not void, and equity would not interfere to set it aside at the instance of stockholders who had paid nothing upon their stock subscriptions.</p> <p>Same. — Forfeiture of Slock for Non-Payment of Calls. — Notice.—The non-payment of calls upon subscriptions for capital stock, if notice of the calls and demand of payment be made, will, without other notice, warrant a forfeiture of the stock under section 3896, R. S. 1881.</p> <p>Practice. — Pleading.—Complaint.—Amendment.—Interrogatories.—When an amended complaint is filed, it supersedes not only the original complaint, but interrogatories filed with it, and in that case it is not error .to refuse to require more specific answers to such interrogatories.</p>

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

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

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

<p>Guardian and Ward. — Personal Liability of Guardian. — Taxes.—County Treaswer. — Contract.■—Statute of Frauds. — A guardian, E., whose ward’s land was advertised for sale for taxes, requested S., the treasurer, to receipt such taxes as paid and hold the receipt for a short time, when he would get money from a sale of the land and pay the same. S. thereupon did as requested, and in his settlement with the auditor accounted for such taxes as paid. E. sold the land and settled with his ward without paying S.</p> <p>Held, that E.’s promise is not within the statute of frauds, and that he is personally liable to S. for the amount of such taxes.</p>

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

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

<p>Contract.' — Work and Labor. — Evidence.—Upon the trial of a claim by a daughter-in-law, against the estate of her father-in-law, upon an implied contract for care and nursing during his last sickness, evidence tending to show that she and her husband lived with the deceased in his house as a common family, he hiring domestics, furnishing supplies, and the like, is admissible.</p>

<p>Will. — Construction.—Charge of Support and Education of Children. — A devise of land to the children of the testator’s deceased son in fee simple, with the addition of these words, “ It is my desire and intention that the mother of said children shall use and occupy said land until the youngest of said children shall become twenty-one years of age, to support and educate said children,” gives the mother an estate in the land until the youngest child reaches full age, charged, however, with the support and education of the children, and such devise is not upon condition of her personal occupancy of the land.</p> <p>Same. — Guardian.—-In such case, where it appears that the children of the testator’s deceased son have residéd with their mother, and it is not shown that she has been unable or failed to educate or support her children, a guardian of such children can not call upon her for any portion of the rents and profits of'said land; and if the guardian has collected the rents of said land, he must account to the mother for them.</p>

<p>Pbactice.— Weight of Evidence. — Where evidence tends to sustain the verdiet, the Supreme Court will not disturb it on the weight of the evidence.</p> <p>Same. — Excessive Damages. — A verdict will not be disturbed on the ground: of excessive damages, unless they appear, at first blush, to be grossly excessive.</p> <p>Municipal Cobpoeation. — Negligence.—Streets.—It is the duty of municipal corporations to keep all their streets in a reasonably safe condition-for travel, so as not to endanger the persons and property of those lawfully using them, and they are liable for negligently suffering the streets, to become unsafe.</p> <p>Same. — Notice of Defect in Streets. — Time.—A municipal corporation is liable-for injuries caused by its neglect or omission to keep its streets in a safe condition for (ravel, as well as for those caused by defects occasioned by the wrongful acts of others, where the corporation has actual or constructive notice of the defect which caused the injury. Notice to the corporation of the unsafe condition of a street may be inferred from the length of time it has existed, as well as from other facts and circumstances. What is such a length of time must, in a great measure, depend on the circumstances of the particular case, and must, in most cases, be a question of fact to be submitted to the jury.</p> <p>Same. — Crossing Constructed by Private Person. — A municipal corporation is not exempted from its liability for defects in a crossing by the mere-fact that it was constructed by a private person. If such crossing is constructed in a public street, where the public pass on foot, and the same gets out of repair and becomes unsafe, and remains so for such a length of time that the proper authorities, in the exercise of reasonable care and prudence, ought to have discovered the defect and repaired it, the-corporation is liable for the negligence, without actual notice.</p>

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

<p>Railroads. — Eight of Way. — Measure of Damages. — The damages for taking the right of way for a railroad upon condemnation are measured by the value of the land taken and any injury to the rest of the tract through which it extends.</p> <p>Same. — Condemnation.—Notice.—Practice.—Filing exceptions to the inquest in proceedings to assess damages for right of way taken by a railroad company is a waiver of notice.</p> <p>Same. — Construction of Statute. — Sheriff.—Jury.—In such proceedings, under sections 887 and 925, R. S. 1881, the requirement that the sheriff shall charge the jury is merely directory, and its omission does not affect the proceedings.</p> <p>Same. — Damages.— When and to Whom They Accrue. — When a railroad takes possession and builds its road upon the lands of another without appropriation or condemnation, as the statute provides, the damages then accrue to the owner, and a subsequent conveyance of the whole tract gives the grantee no right to any damages. •</p> <p>Same. — Guardian and Ward. — A guardian can not grant to a railroad company a right of way upon lands of his infant ward.</p>

<p>Pleading. — Answer in Abatement. — Pendency of Prior Action. — Demurrer.— Error. — It is error to sustain a demurrer to a verified answer in abatement setting up that a prior action, between the same parties and for the same cause of action, is pending and undetermined on appeal in the Supreme Court.</p>

<p>Partnership. — Notice of Dissolution. — Promissory Notes. — After the dissolution of a partnership, if one partner executes a note in the individual names of both partners (not the firm name), for goods in the line of the partnership business, sold and delivered to him on the firm’s credit by one who had dealt with the firm, and had no knowledge of the dissolution, no notice thereof having been given, the note will bind both.</p>

<p>Descents. — Adoptive Child.. — Adoptive Parents. — Where a husband and wife jointly adopt a child, and the child so adopted dies, without children or their descendants, the owner of land inherited from the adoptive mother, the surviving husband and adoptive father will inherit such land in preference to the natural mother.</p> <p>Stare Decisis. — Bona Fide Purchaser. — Judicial decisions are evidences of the law, but where they are not long established, and are palpably erroneous and plainly productive of injustice, they should be overruled, and a party who buys lands during a pending litigation can not hold it as a bona fide purchaser solely on the ground that in former decisions the court had declared the law to be as claimed by his grantor.</p>

<p>Instructions. — Admissions.—It is fatal error to instruct the jury that evidence of verbal admissions made some time ago are subject to imperfection and mistake, and should be cautiously received, because the party may not have expressed his own meaning, or may have been misunder.stood, and the witness may not give the exact language, and thereby change the meaning; but admissions deliberately made against interest, and well understood, are entitled to consideration : nevertheless the jury are the exclusive judges of the weight of the evidence.</p> <p>-Signature. — Misconduct of Counsel. — The genuineness of a signature was in issue by an answer under oath, purporting to be signed by the party, but this was not put in evidence, nor was there any evidence that the name was written by the party. In argument his attorney was permitted, over -objection, to hand the affidavit and paper in dispute to the jury, that . they might judge of the handwriting by comparison, which they did. 'Held, that this was error.</p>

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

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

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

<p>Municipal Cobpobation.— Annexation of Territory.— Estoppel of LandOwner. — A property-owner does not estop himself from contesting the validity of proceedings ordering the annexation of territory to the corporation in cases where there is no jurisdiction to make the order, by voting at municipal elections and by offering himself as a candidate for office; nor does he estop himself by unsuccessfully petitioning the common council to improve the streets.</p> <p>■ Same. — Jurisdiction of Common Council in Annexation Proceedings.- — -The common council of a city has no authority to order the annexation of contiguous territory unless it has been laid off into lots and platted, without the consent of the owners, and an order annexing territory not platted, and in cases where the owner has not consented, is void.</p> <p>■ Same. — Estoppel of Property-Owner. — Imp'ovements by City. — If the property-owner for a considerable length of time acquiesces in the annexation proceedings, and, without objection, sees the city make improvements and expend large sums of money upon the faith of the validity of the proceedings, he will be estopped from impeaching the validity of the proceedings, although he may not have directly received any benefit from the improvements made by the city.</p> <p>¡Same. — -Corporate Boundary. — -Ignorance of Facts. — Estoppel.-—Where public officers, having no personal interest in the matter, and acting in good faith, assume to make a change in the corporate boundaries of a' city, and fail through mistake of fact to proceed in accordance with the statute, a property-owner who resides in the territory sought to be annexed, and who sees the city spend large sums of money in making public improvements on the territory annexed, maybe estopped even though he did not know that the proceedings were void.</p> <p>•Cueative Statutes.— Validity and Effect. — Curative statutes are valid, and may heal defects and irregularities in judicial proceedings ; but, where the proceeding was had in a tribunal having no jurisdiction of the subject-matter, the proceeding is void, and can not be made valid by a curative statute.</p> <p>Same.— Common Council. — Board of Commissioners. — Jurisdiction.—Where the-statute confers exclusive jurisdiction upon the board of commissioners to order lands annexed to a city, the power can not be exercised by the-common council, and a statute attempting to legalize an order made in such a case by the common council is inoperative and void.</p>

<p>Tbespass. — Stock Running at Large. — Fencing.—In the absence of an order by the board of county commissioners permitting cattle to run at large, the owner is liable for damages caused by any trespass they may commit while so running at large, without reference to the quality of fencing through which they may pass, or whether they are breachy or accustomed to doing mischief. ■</p>

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

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

<p>Contbact. — Consideration.—Restraint of R-ade. — Damages.—Partus.—Pleading. — G. & G., as partners, owned and operated a livery stable in the town of R., as did H. and also J. Bros. The last named sold for merely the value thereof the personal property used in the business, a part to G. &. G. and the remainder to H., but did not sell or lease the stable, and, in consideration of the purchase, made a written contract with them, agreeing not to engage in'the business in the stable of J. Bros., nor to permit others to do so for a period of five years, and that $2,500 should be paid as liquidated damages for breach of the contract. There was a breach by act of one of the sellers, but IT. having quit the business refused to join G. & G. as plaintiffs, and therefore they made him.a defendant.</p> <p>Held, that the written contract was upon sufficient consideration, and was. valid.</p> <p>Held, also, that it was unnecessary to allege special damages, the sum fixed by the contract being liquidated damages, and not a penalty.</p> <p>Held, also, that IT., having refused to join as plaintiff, was properly made-a defendant under section 269, R. S. 1881.</p> <p>Held, also, that G. &. G. could sue alone and recover the whole liquidated, damages.</p> <p>Held, also, that both defendants were liable for a breach of the contract by the act of one.</p> <p>Practice. — Signing Instructions. — Supreme Court. — There is no error in refusing instructions which are not signed by the party or his counsel, nor will the Supreme Court consider a refusal in any case unless all the instructions given are in the record.</p> <p>Same. — Ewmination of Witness. — Where a witness is asked as to a lost instrument, about which he has been testifying, “ Is that all you remember of the contents of the instrument?” it is not error upon his request to read to him his testimony already given.</p> <p>Harmless Error. — Evidence.—The refusal to permit a defendant to prove the truth of a necessary averment in the plaintiff’s complaint is a harmless error.</p>

<p>■Contract. — Rescission. — Equity. — Pleading. — Complaint. — Demurrer. — In equity, the court may require a plaintiff to do equity, as a condition upon which it will grant relief, and a failure to show in the complaint to rescind a contract, That the plaintiff has offered to do equity before suit brought, if the complaint offer to submit to the order of the court in that respect, does not necessarily render it bad on demurrer.</p> <p>Same. — Family Settlement. — Complaint by a widow to set aside a family settlement, by which she had accepted payment of a sum greatly less than she was by law entitled to, in full of her share of her deceased husband's estate. The complaint offered to submit to such terms as the court would decree, but did not aver an offer to rescind or repay before suit brought.</p> <p>Held, that it was sufficient on demurrer.</p> <p>Same. — Fraud.—A husband, seventy years of age, died intestate, owing no debts, with an estate, exclusively personal, of $21,529, a childless widow and three children by a former marriage surviving. While living, he had given to his children all his real estate and $6,000 in cash, and at the same time $9,000 to the wife, for which she had executed a receipt to him as for “ my share of division in th§ estate.” At the marriage she had nothing. He had accumulated his estate, was sixty years old and eight years her senior. After his death, it being rumored that she claimed a further share, there was a meeting of the heirs and herself, attended also by a reputable and intelligent neighbor, who was sl mutual friend, of bin to all the parties and had their confidence, whose presence the heirs had requested in the belief that he might be able to promote an amicable adjustment. All parties knew the facts, and the widow was a woman of ordinary mind, intelligence and business experience, but in infirm health temporarily. The only statement by the neighbor to her, subject to question, was that the $9,000, which she had received, would be charged to her in the final settlement. She named the sum of $2,000 as satisfactory; her proposition was accepted, the money paid, and she executed an assignment to the heirs of all her interest in the estate.</p> <p>Held, that there was no fraud, actual or constructive, and no ground for annulling the settlement.</p>

<p>Evidence. — Practice.—Error in admitting testimony is not available where no objection is made to its introduction, and no motion made to strike it out.</p> <p>Same. — It is not error to reject evidence which, if admitted, would not have any effect on the finding.</p>

<p>Drainage. — Complaint for Assessments. — Exhibits.—In a suit by a commissioner of drainage to collect an assessment of benefits, a copy of the assessment should be made a part of the complaint; otherwise it will be bad, and a bad answer sufficient for it.</p> <p>Same. — Answer.—To a good complaint in such case, an answer is bad which shows that the original petition for drainage was defective.</p>

<p>Township Trustee. — Eligibility.—A township trustee who has been in' office two consecutive terms immediately preceding the election at which' he offers himself as a candidate is ineligible.</p> <p>Same. — -Election.— Voles for Ineligible Candidate. — -Votes cast for a person not eligible to election can hot be counted against eligible candidates.</p> <p>Same.- — Qualification.—Forfeiture of Office by Failure to Qualify. — A person elected to the office of township trustee who fails to give bond as required by section 5527, R. S. 1881, for more than six months after the election, will be deemed to have abandoned the office unless some satisfactory excuse for the delay is shown.</p>

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

<p>Pbactice. — Supreme Court. — Where the evidence is not in the record, the Supreme Court will not review the finding of the trial court upon an issue of fact.</p> <p>Same. — Assignment of Error.— Waiver. —Assignments of error not discussed are considered as waived.</p>

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

<p>Statute op Frauds. — Parol Contract — Personally.—Consideration.—A parol contract for the purchase of five thousand bushels of corn, at fifty cents per bushel, payable on delivery, the purchaser as a part consideration of the sale to furnish bags in which to put the corn when shelled,, which he does to the value of $100, is within the statute of frauds and can not be enforced.</p> <p>Same. — Earnest.—Part Payment. — In such case the delivery of the bags is not “ earnest or part payment.”</p>

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

<p>Injunction. — Judgment.—Right of Land-Owner to Enjoin Sale of Land on ■ Judgment against Another. — A land-owner may maintain an injunction to prevent the sale of his land upon a judgment rendered against another person.</p> <p>Judgment. — Parties.—One who is not made a party to an action is not concluded by the judgment therein rendered.</p> <p>'Parties. — Neeessary and Proper Parties. — Foreclosure of Mortgage. — Owner of Equity of Redemption. — Where land conveyed by mortgage is afterwards sold by the mortgagor, his vendee is a necessary party to the action to-foreclose the mortgage, but the mortgagor is not, unless a personal judgment is sought against him, although he may be a proper party.</p> <p>Vendor and Purchaser.— Volunteer.— Consideration. — One wbo has not paid a consideration for property is, as a general rule, regarded as a. mere volunteer, and a mere volunteer can not secure the defeat of a lien or the overthrow of a judgment.</p> <p>Same. — Bona Fide Purchaser. — Husband and Wife..— Vendor’s Lien. — Precedent Debt. — A wife who receives a conveyance of land from her husband in payment of a precedent debt, and does not change her condition on account of the conveyance, is not a bona fide purchaser for a valuable-consideration in such a sense as to be entitled to defeat the vendor’s lien of her husband’s grantor for the purchase-money of the land.</p>

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

<p>Municipal Corporation. — Establishing Street Grade. — Changing Grade.— Damages to Owners. — Under section 3073, R. S. 1881, the grade of a street, which can not be changed without the assessment and tender of damages occasioned thereby, is a grade established in pursuance of some ordinance or order of the common council involving some general plan •of improvement or grading of a street, or specified portion thereof. And -such grade, when established, must be approved and adopted, in some way, by the common council, and should be made a matter of record. 'The record of the survey establishing the grade should appear in the record which the civil engineer is required to keep; and the proceedings of the council should, in some way, either by ordinance or resolution, show that the survey establishing the grade was authorized or approved so as to make it authoritative. Until proceedings are had by the common council, directing that the grade of a certain street, or streets, or specific portions thereof shall be established, or that a grade already established is approved and adopted, in some authoritative way, by the common council, it can not be deemed that the “ city authorities have once established ” a grade of a street; -and improvements are made by lot-owners subject to the right of the city to establish or change the grade without the assessment or payment of damages.</p> <p>Same. — Estoppel of Coiporation as to Establishment of Grade. — The fact that an ordinance requires all sidewalks to be built in conformity with the grade of the corresponding street, and makes it the duty of the street commissioners to oversee the construction and maintenance of all sidewalks, and requires all persons, before laying a sidewalk, to apply to the city engineer for the proper grade, and to construct the proposed sidewalk in accordance with the grade as given by him, and the fact that one who does so apply makes such improvement according to the direction of the engineer, where the street has not been established by the steps above specified and required by section 3073, R. S. 1881, do not estop the city from establishing a different grade for the street without the assessment and tender of damages. Nor does the fact that the committee on streets, with the city engineer,' directed the owner where to place the sidewalk, estop the city.</p>

<p>Railroads. — Right of Way. — Award of Appraisers. — Exceptions.—Issue.—Evidence. — Damages.—Where a railroad company appropriates land for its right of way, and the appraisers appointed to appraise the damages of the owner of the land, by reason of such appropriation, file their award of such damages, and the owner appeals from such award and excepts thereto upon the ground, among others, that the damages awarded were inadequate and unjust, for the reason that when the road was built, as proposed, upon the line appropriated, it would be necessary for the owner to fill his land, from two to five feet, the entire length of the line appropriated, at large cost to him, and where, upon the trial of the issue thus tendered, evidence is admitted tending to prove the cost of making such fill, as an element of the owner’s damages, the railroad company can not successfully complain of the admission of such evidence as error for the first time in the Supreme Court.</p> <p>Same.— Gost of Fill. — Evidence.—Instruction.-—Error.—Where, upon the trial of the issue so tendered, evidence is offered and admitted, without objection or exception, tending to prove the cost to the owner of making such fill, an instruction, to the effect that in determining the amount of the owner’s damages arising from the appropriation of his land for such right of way, it is proper for the jury to consider, among other things, ■the cost to him of making such necessary fill, is within the issues and applicable to the evidence in the cause, and, therefore, is not an available error.</p> <p>Same. — Evidence.—Opinion of Non-Expert. — The opinion of a non-expert witness, as to the cost or value of the work in making such fill, is competent evidence.</p> <p>Same. — Appropriation for Right of Way. — Appeal from Appraisers’ Award.— Payment of Final Damages.— Vesting of Title. — Where a railroad company appropriates land for its right of way, and the appraisers award damages to the owner of the land, from which award an appeal is taken to the proper court, the payment to the clerk of the damages awarded by the appraisers will operate only as a license to the railroad company to take possession of the land so appropriated; and the title to such land will not vest in such railroad company until it has fully paid the damages finally assessed and adjudged in favor of such owner upon the final determination of such appeal by the proper court.</p>

<p>Married Woman. — Mortgage of Land Acquired by Gift. — Estoppel.—Deed.— While the act of 1879 (Acts 1879, Spec. Sess., p. 160) was in force, a mortgage by a married woman, to secure her husband’s debt, of lands-acquired by gift, was invalid, and a recital in the deed to her, showing a cash consideration, did not estop her from showing by parol evidence that the conveyance was in fact a gift, and not for a valuable consideration. Same.- — Statute Constnied. — The present statute, R. S. 1881, section 5117, which subjects a married woman to estoppel in pais, is not retroactive.</p>

<p>New Trial. — Newly Discovered Evidence. — Diligence.—Where, upon a trial, the controversy turns upon the proof of payment, and the plaintiff, who has the burden and knows the defendant will probably dispute payment, calls but a single witness to prove it, without making any effort to obtain corroborating testimony, though one of his witnesses could have then testified to the newly discovered evidence, the plaintiff fails to show requisite diligence, and is not entitled to a new trial.</p>

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

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

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

<p>Mechanic’s Lien. — Furnishing Materials to Contractor. — Repair of Building.— Under sections 647 and 648, 2 R. S. 1876, p. 266 (see, also, sections 5293 and 5294, R. S. 1881), no lien can be'obtained on a building for materials furnished therefor to a contractor, to be used in repairing the same, under a contract to which the owner is not a party. Nor does the fact that the owner knew that the materials used in repairing the building were being purchased by the contractor from the party who asserts the lien, tend, in such case, to establish any claim against the premises.</p>

<p>Married Woman. — Alienation of Land Acquired by Previous Marriage. — Partition. — -Husband and Wife. — Although a married woman can not, during the existence of a second or subsequent marriage, alienate real estate acquired and held by her in virtue of a previous marriage, yet, if the real estate so acquired and held by her is an undivided share or interest in the lands of her previous husband, she is entitled to have such share or interest set oft’ to her in severalty, and, to that end, she may bring and maintain an action of partition against the owner or owners of the residue of such lands.</p> <p>¡Same. — Lands not Susceptible of Division. — Order of Sale. — Distribution of Proceeds. — Estoppel.—Where, in such suit, it is ascertained or found by the • court that the lands of the previous husband are not susceptible of division between the parties, without damage to their respective interests therein, the court may lawfully order and decree the sale and conveyance of such lands during the existence of such second or subsequent marriage, so as to vest in the purchaser and grantee the fee simple estate in the share or interest therein which descended to such married woman as the widow of her previous deceased husband; and upon such sale and conveyance, the proceeds of the share or interest of such married woman in the lands of her previous husband must be paid to her unconditionally, and thereafter she will be estopped from asserting, as such widow, any further title, claim or interest in or to such lands.</p>

<p>Partnership. — S/ule as to Partnet'ship and Individual Creditors. — Decedents’ Estates. — In this State, partnership creditors, even though there are no partnership assets, and no solvent partner, can not participate with individual creditors in the individual estate of a deceased partner.</p> <p>Same. — Parchase of Partnership Property by One Partner who Agrees to Pay Firm Debts as part Consideration. — ■ Where one partner buys out the entire interest of his co-partners, the firm assets become his individual property; and a promise to pay the debts of the firm, as part consideration of the purchase, is binding on him, and the partnership creditors have a right to treat him as individually liable for their claims, by virtue of such promise, in common with original individual creditors.</p> <p>■Same. — Where the partner so purchasing dies, partnership creditors may file their claims against, and participate on equal terms with individual creditors in, his estate. Zollars, C. J., dissents.</p>

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

<p>Criminal Law. — Murder.—Admission to Bail. - Habeas Corpus. — Supreme Court. — Practice.—In a proceeding by babeas corpus by a party indicted .for murder to be admitted to bail, the Supreme Court, upon appeal by the petitioner, will examine and pass upon the evidence.</p> <p>Same. — Burden of Proof. — An indictment for murder implies primet facie that the accused has no right to bail, and the burden is upon him to show that the proof of his guilt is not evident, and that the presumption of his guilt is not strong.</p>