Volume 12 — Indiana Appellate Court Reports

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

<p>Assignment oe Ekeobs. — When Sufficiently Signed. — An assignment of errors, signed “Dunn and Lowe, East and Miller, for appellants,” is sufficiently signed.</p> <p>AppellateCoubt Peactice. — Brief.—Whenby all Appellants. — A brief filed by appellant’s attorneys “for appellants,” although the title thereof does not contain the names of all the appellants, is the brief of all the appellants.</p> <p>Sale. — Induced by Fraud. — Title.—Purchaser of Vendee, in Good Faith, Without Notice. — Where a sale of goods is induced by fraud, the title to the property remains in the vendee, until the vendor elects to rescind, and a sale by the vendee for value to a third person who is ignorant of the fraud, vests a good title in the latter even against the original vendor.</p> <p>Same. — Fraud.—Knowledge by Purchaser of His Insolvency.— Title.— Setting Aside Sale. — The fact that one who purchases goods may know when he makes the purchase that his debts exceed his assets, does not of itself constitute such a fraud as will justify the setting aside of the sale at the instance of the seller, after the goods have come into the possession, and under the control, of the purchaser; much less can a recovery be had when they have been purchased and passed into the possession of an innocent third person.</p> <p>Same. — Fraud Sufficientto Set Aside a Sale of Goods. — -To constitute fraud sufficient to set aside a sale of goods, the purchase must have been perfected through some artifice, trick, false pretense, misstatement of the facts, or suppression of the truth, which enabled the purchaser to obtain possession of the goods without consideration, he intending, at the time of the purchase, not to pay therefor.</p> <p>Same.- — Bight of Purchaser to Sell or Mortgage Goods. — Preference of Creditors. — Fraud.—Having acquired possession" of the goods, the purchaser may make any honest disposition of them he may see fit. He may sell them or mortgage them in whole or in part to secure any debt which he may owe, and in so doing he may prefer one creditor to another, mortgage the goods purchased from one to pay the debt of another, and such a preference is not a fraud in law, even though the purchaser knows, at the time he sells or mortgages the goods, that he is in failing circumstances and contemplates making an assignment.</p> <p>Debtor and Creditor. — Preference of Creditor. — A debtor may prefer a creditor provided the preference is made in good faith.</p> <p>Fraud. — A Questionof Fact. — Can Not Be Inferred as a Matter of Law.— Fraud is a question of fact to be found as such, and it can not be inferred as a matter of law from other facts or circumstances.</p>

<p>Telegraph Company. — Failure to Promptly Deliver Message. — Prima Facie Case Against Company. — Defense. — Issues.—Tn an action against a telegraph company for negligently delaying the transmission of a message, in which the answer sets up notice to the sender of the company’s inability to promptly send the message on account of a prevailing storm or atmospheric disturbances which prevented the use of defendant’s wires, to which a reply in general denial was filed, when the plaintiff proved the delivery of the message for transmission, and the failure to transmit and deliver the same to the sendee within the time required, he made a prima fade case against the telegraph company.</p> <p>■Same.- — Failure to Promptly Transmit Message. — Defense.—Prevailing Storm. — Notice.—In such case, the fact, if a fact, that the telegraph company could not promptly deliver the message when presented, on account of a prevailing storm, and that the sender had notice of such inability of the company, and left the message for transmission with such knowledge, are matters of defense.</p>

<p>Amendment of Pleading. — Superseding Original. — Striking Out Amended Complaint at Instance of Defendant. — Estoppel.- — When an amended complaint is properly filed it supersedes and takes out of the record the original, but when the amended complaint has been stricken out and rejected by the court at the instance of the defendant, as not having been entitled to be placed on file, the defendant is estopped from asserting that the motion was not really well taken, but that the amended complaint was properly filed, and therefore effectual to supersede the original.</p> <p>Judgment.— When not Affected by Technical Error. — Appellate Court Practice. — A judgment will not be reversed or affected by reason of any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.</p>

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

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

<p>Contract. — Futures.—Margins.—Public Policy. — If, under the guise of a contract which has the appearance of validity upon its face, the real intention is merely to speculate on the rise and fall of the market, without any purpose that any property shall be delivered or received, but with the understanding that at the appointed time the account is to be adjusted by paying of receiving the difference between the contract and the current price, the entire contract is illegal, as against public policy, and falls under the condemnation of the law.</p> <p>Agent. — Illegal Contract. — Bight of Agent to Set Up Illegality. — When He May or May Not Do So. — If A and E enter into a wagering contract, and B pays the wager to C, who is not connected with the original illegal transaction to deliver to A, A can recover the money in an action against C; but if A authorizes 0 to enter into a wagering contract for his benefit, with authority to collect and account to him for the winnings, and 0 enters into such contract in his own name with B, and the wager is paid by B to 0, A can not recover the money in an action against 0.</p> <p>Practice. — Demurrer to Answer. — Assigning the Demurrer to Complaint was Erroneously Overruled.- — Where a demurrer addressed to an answer has been overruled, assigning as error that the court erred in overruling the demurrer to the complaint presents no question concerning the sufficiency of the answer.</p>

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

<p>Contributory Negligence. — Facts Showing. — Allegations of Freedom from Fault. — Where the facts pleaded show contributory negligence on the plaintiff’s part they will overcome the general allegations of freedom on his part from fault.</p> <p>Pleading. — Theory of Pleading, Row Determined. — Single Fact Overturning. — In determining the theory of a pleading its general scope and tenor must be considered, and not merely fragmentary statements; and although a single fact alleged may overthrow a pleading on one theory, yet it may be insufficient to overturn it on another theory.'</p> <p>Same.' — Theory, Row Facts Considered in Relation Thereto. — Inconsistent Facts. — When the theory of a pleading is settled, any fact alleged that is pertinent to that theory may be considered in connection with the other facts pleaded which are pertinent to such theory, in determining the sufficiency of the facts pleaded to constitute a cause of action or defense; and when two facts are pleaded, both of which are pertinent to the theory of the pleading, and one is inconsistent with the other, that one which is strongest against the pleader must be accepted as overcoming that one most favorable to him.</p> <p>Master and Servant. — Assumption of Risks. — A person entering into another’s service assumes all of the ordinary and usual risks incident to the service to be performed.</p> <p>Same. — Master and Servant.- — Employing Servant to Work with Defective Machinery. — A master may engage a servant to work with defective machinery, tools and appliances, and to work in an unsafe place; and if the servant know of such defective appliances and unsafe place, he is presumed to have contracted with reference to them in his employment; and if injured by reason thereof he can not recover damages for injuries from his employer.</p> <p>Same. — -Safe Machinery and Place to Work. — Limitation of General Mule. — The rule that the master must furnish his servant reasonably safe machinery, tools and appliances with which to do his work, and a reasonably safe place in which to do it, applies only where the work is such that such machinery and place can be furnished for the work.</p> <p>Same. — Hazardous Work, Servant's Knowledge of Machinery, Presumption of Knowledge of Misk. — If a servant contracts to perform hazardous duties, knowing the kind of machinery, tools and appliances with which he is to work and the place where he must perform such work, he is presumed to know the dangers incidental to the work arising from causes open and obvious, the dangerous character of which cause he had an opportunity to observe and ascertain.</p> <p>Same. — Duty of Servant to he Watchful for Dangers. — A servant entering upon the performance of his duties is bound to proceed with care and observe all dangers which are open and obvious. He can not wait to be informed of such dangers, but he must ascertain for himself the probable dangers which he may encounter in the performance of such duties.</p> <p>New Trial. — No Evidence to Support Verdict. — The court will not weigh the evidence and determine which side has a preponderance, when there is a conflict in it; but if there be no evidence on a vital point it will review it and order a new trial.</p> <p>Appellate Court Practice. — Presumption in Favor of Mulings of Lower Court. — The Appellate Court indulges every reasonable presumption in favor of the rulings of the lower court, and such rulings will be upheld unless the complaining party shows affirmatively, on the face of the record, that an error has been committed prejudicial to his rights.</p>

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

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

<p>Agency. — Evidence.—Proof of Transaction Before Proof of Authority or Batidcation. — Harmless Error. — Evidence of a transaction between an agent and a third party, before proof is made of such agency or ratification, is not harmful error where the subsequent evidence discloses such authority or ratification of the agent’s act.</p> <p>Same. — Unauthorized Act. — Batification.—Burden of Proof. — If an agent act outside of the apparent scope of his authority, the burden is upon the one dealing with him to prove that the 'principal ratified such act.</p> <p>Same. — Batification, When Only to Extent of Knowledge of Terms of Contract. — A principal, when advised as to all the facts, can not elect to approve in part and reject in part, but where the principal receives his information as to the terms of the contract from the opposite party, and ratifies the contract thus communicated, acceptance of benefits under it can not be regarded as a ratification of additional provisions of such contract, as to which he had no knowledge, but only binds the principal so far as he was informed of the terms of the contract.</p> <p>Evidence. — Answer Indicating That Witness, Knowledge is Hearsay.— Kffect. — Strildng Out. — Where an answer of a witness indicates that his knowledge on a subject is mere hearsay, it will not be sufficient cause for striking out his entire evidence on the subject, but should be taken in connection with the remainder of his testimony as affecting its weight.</p>

<p>Decedent’s Estate. — Appeal.—Dismissal.—Time of Tiling Transcript. —Where an appeal is taken by an administrator from a judgment on a claim, the transcript must be filed in the appellate tribunal within thirty days from the time the bond is filed, or the appeal will be subject to dismissal.</p> <p>Same. — Appeal.—Extension of Time for. — Td. such case, if appellant desires more time for appeal, he should make seasonable application, sufficient showing, and give proper notice.</p>

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

<p>Pleading. — Complaint to Enforce a Laborer’s Lien Against Bailroad.— Sufficiency of. — A complaint in an action to enforce a laborer’s lien against a railroad for labor performed is sufficient where it appears that the work was done in the county where the notice of lien was filed; that it was done on the railroad mentioned; that the work was such that a lien can be held therefor under the statute; and that the work was such as was provided by the contract to be done; the work contracted to be done being to grub and clear the right of way and grade and construct the road bed.</p>

<p>Bailment. — Hire.—Degree of Care. — Special Contract. — Bailed Property Stolen. — Liability of Bailee. — If a person hire a horse and buggy to drive to a certain place, and agrees to put the horse and buggy in a livery stable and have the same kept there during his stay, but in violation of such agreement hitches the horse, with the buggy attached thereto, to a public hitching rack, and the horse and buggy are stolen, the bailee is liable in damages.</p> <p>Same. — Negligence of Bailee. — Proximate Cause.— Care. — Special Contract. — The violation of the degree of care established by the special contract to put the team in a livery stable was- negligence, and the loss of the property was the proximate result of that negligence.</p> <p>Same. — ■Degree of Care. — Special Contract. — If, in a bailment, there is a special contract providing what degree of care the bailee shall exercise over the property, the bailee is required to use such care as the contract prescribes.</p> <p>Demand.- — When Not Necessary. — It is unnecessary to make a demand when it could avail nothing, as where the plaintiff counts upon the loss of property through defendant’s negligence.</p>

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

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

<p>Amendment oe Pleading. — Discretion of Court. — It is largely within the discretion of the court whether or not an amendment of a pleading may be made; and such discretion will not be disturbed unless a clear abuse is shown. The court has full power to permit a pleading to be amended in order that it may conform to the evidence.</p> <p>Same. — Continuance.—Changing -Issues. — The person objecting to an amendment of a pleading after the evidence is closed is entitled to introduce additional evidence to meet any issues that may be changed by such amendment; and if necessary to accomplish that end, he is entitled to a continuance to secure his witness; but in order to present any question relative to the introduction of the proposed evidence, he must offer it if at hand, and if not at hand, move for a continuance until he can obtain it.</p> <p>Payment. — Note or Bill Payable in Bank. — Bebutting Presumption of Payment. — Burden.—Taking a note or bill of exchange payable in a bank of this State operates prima facie as the payment of the debt for which it is taken, and the burden is upon the creditor to show that it was not so received. In such an instance the presumption of payment may be rebutted by evidence that the note or bill was ■ not so received.</p> <p>Oonteact. — Evidence to Vary Terms of Written Contract. — Bills of Exchange. — The terms of a written contract in which the purchaser of an instrument agrees to pay a certain cash sum for it, or five days after shipment of it to make bills of exchange for the full amount due, payable in a certain amount monthly, the title to the instrument to remain in the vendor until it is paid for in full, is not violated by allowing the introduction of testimony of witnesses to show that the bills were not to be taken as payments, and that the title was to remain in the vendor until they had been paid in cash.</p> <p>Pbactice. — Absolute Title Averred.- — Evidence of a Qualified Title.— Under an averment of an absolute title, evidence of a qualified title may be shown.</p> <p>Oonteact. — Conditional Sale. — Title not Vesting Until Paid for. — A contract of sale providing that the title to the article sold shall remain in the vendor until all the purchase-money is paid, is valid.</p> <p>Execution. — Defendant Holding Property by Conditional Title. — An article held by the vendee upon the condition that the title to it is not to vest in him until he has paid for it can not be levied upon and sold under an execution against him.</p> <p>Constable. — Sale on Execution. — Defendant Holding Property Under a Conditional Sale. — Liability.—A constable 'who levies an execution upon property in the possession of the execution defendant by virtue of a contract that the title to such property is not to vest in such vendee until paid for, is liable to the vendor on his bond for • its value if he sell such property.</p> <p>Chattel Mortgage. — Sale on Execution. — Liability of Execution Officer. — If an execution officer sell property upon which there is a chattel mortgage, and delivers it to the purchaser, without requiring him to comply with the conditions of such mortgage, he will be liable to the mortgagee on his official bond for damages.</p>

<p>Law and Fact. — Issues.—Sow Tried or Determined. — Instructions.— Where the court in- instruction number one stated the issue to the jury, and read the complaint and answer to it, and in instruction number two, “you must determine the issue upon and under the evidence presented to you and upon the instructions of the court as to the law of the case,” the issue spoken of in the latter instruction was the issue of fact, and the jury were not misled thereby.</p> <p>Same. — Issues.—Sow Tried. — In a civil case, issues of law must be determined by the court, and it is the duty of the jury to decide issues of fact when submitted to it for trial.</p> <p>Instructions to Jury. — Partij Complaining of Instruction Given, Substantially Same as One Given at his Request. — If an instruction given at the instance of the plaintiff is substantially the same as one given at the instance of defendant, defendant can not be heard to complain of the instruction given at the instance of plaintiff, and vice versa.</p> <p>Same. — Refusing Instructions Already Given in Substance. — It is not error to refuse instructions substantially covered by others given.</p> <p>Railroad. — Traveler Approaching Crossing. — Duty to Stop, Look, and Listen. — The law does not require a traveler upon a highway, with a team, in all instances, in approaching a railroad crossing, to stop and look and listen for an approaching train; nor does the law fix any particular point or distance from the crossing at which he must stop, nor that he must stop still at all.</p> <p>Same.— Traveler at Crossing.- — -Frightened Sorses. — Inevitable Accident. —The fact that a traveler loses control of his team at a railroad crossing and collides witñ an approaching train does not necessarily make the accident inevitable.</p> <p>Practice. — Leading Question. — Discretion.—Reversible Error. — Witness. — Evidence.—Leading questions to witnesses are largely in the discretion of the trial court, and will not amount to reversible error except in clear cases of abuse of discretion.</p>

<p>Landlord and Tenant. — Tenant Holding Over. — Tenancy from Tear to Tear. — The mere fact that a tenant continues to hold possession of the premises for more than one year after the expiration of his lease, does not create a new tenancy from year to year under the statute.</p> <p>Same.— Tenant Wrongfully Holding Over. — Notice to Vacate. — Possessory Action. — A tenant wrongfully holding over after expiration of lease is not entitled to notice to vacate before suit for possession.</p> <p>Same. — Sufficiency of Complaint Against Tenant Holding Over. — That the complaint, in an action for possession against a tenant holding over, is sufficient, see opinion»</p>

<p>Municipal Corporation. — City.—Insufficiency of Complaint for Damages Besulting from Defective Sidewalk. — In an action against a city for damages for injuries sustained by plaintiff stepping into a “hole and broken place” while passing on and along the sidewalk in said city, the complaint is insufficient which does not show that defendant knew of the “hole and broken place” a sufficient length of time prior to the accident to have repaired the same in the exercise of reasonable care; nor that the “hole or broken place” had existed for such a length of time prior to the accident that appellant, in the exercise of reasonable care, should have discovered and repaired it.</p>

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

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

<p>From the St. Joseph Circuit Court.</p>

<p>Appeal Bond. — Approved by Clerk. — When Valid. — Waiver.—Estoppel. —An appellee may insist that the statute regulating the approval of appeal bonds be followed, yet he may waive this right; and when he has expressly waived it, and the opposite party has acted upon the waiver, filed his bond (which was approved by the clerk of the court) and received the full benefit of it, appellant will be estopped to deny its validity.</p>

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

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

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

<p>Demand. — Street Sprinkling Assessment. — A demand is not a prerequisite to an action for the collection of a street sprikling assessment.</p>

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

<p>Instructions to Jury. — Test of Correctness. — The test to be applied in determining the correctness of an instruction is not whether it states the law correctly, but does it state the law correctly as applied to the evidence and the facts under the issues.</p> <p>Agency. — Broker.—Real Estate. — Agent Interested as Purchaser. — When Entitled to Commission. — If one employ a firm of real estate brokers to procure a purchaser for certain real estate, and the brokers procure a sale thereof to a syndicate of which one of the brokers is a member, the brokers can not collect commission for such sale unless it is made to appear that the principal, knowing the interest of one of such brokers (Ms agent) in the syndicate purchasing the property, specially undertook and agreed to compensate them for making the sale.</p> <p>Same. — Rule Where Agent’s Interest Conflicts With Sis Principal’s.— Burden of Proof. — Where it appears that the interests of the agent and those of Ms principal conflict, the courts will subject the acts of the agent to the closest scrutiny and infer that he acted corruptly and from self-interest in all cases of doubt, thus casting upon the agent the burden of proving the good faith and honesty of the transaction, and it will not suffice to show that the principal has received all that he directed the agent to ask, or that the amount received was all' that could have been obtained from a stranger; for the agent can not act in the dual relation of both agent and principal.</p>

<p>Negligence. — Tort Feasors, When Jointly and Severally Liable. — Action Against One Tort Feasor. — Damages Not Apportionable. — Parties.— Where two separate and distinct causes unite in producing an injury and it is impossible to apportion the damages between the separate tort feasors each tort feasor is jointly and severally liable for the whole injury, nor will the fact that the plaintiff has instituted his suit against one tort feasor only, avail the defendant in defeating a recovery. The term theory, as applied to pleadings, defined.</p>

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

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

<p>Pleading. — Complaint, Sufficiency of on Demurrer, On Appeal When Questioned for First Time. — Inference.—If a demurrer be filed to a complaint no intendment arises and every material fact necessary to the statement of the cause of action must be alleged or the demurrer for want of facts will be sustained; but when the complaint is first challenged on appeal it will be held sufficient (by reason of the curative effects of the verdict and the inferences which arise in favor of the correctness of the trial court’s rulings) if the facts alleged are sufficient to bar another action for the same cause.</p> <p>Same. — Complaint, Sufficient as to Personal Liability, Insufficient as to Mechanics’ Lien. — If a complaint state facts sufficient to entitle plaintiff to a personal judgment against defendant it will be sufficient, although it be insufficient as to the foreclosure of a mechanics’ lien which was auxiliary to such personal liability.</p>

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

<p>Appellate Court Practice. — Appeal, Dismissal for Failure to File Brief Within Stxiy Days. — Supersedeas Brief, When Will not Save from Dismissal. — A supersedeas brief will not save an appeal from dismissal (where a. more general brief has not been filed within sixty days from the time of submission), which does not discuss' any point relied upon for a reversal of the case.</p>

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

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

<p>Negligence. — Defined.—Duty to Third Person. — Actionable negligence consists in the breach of some duty owing from one person to another, by reason of which such person was injured. A duty owed to a third person is not sufficient to enable the injured person to recover.</p> <p>Same. — Faculties Must be Used. — Contributory Negligence. — A person must exercise his own faculties so as to avoid danger, if he can reasonably avoid it; and the failure to do so, if it contributes proximately to the injury, will prevent the injured person recovering damages for his injuries.</p> <p>Same. — Elements of Contributory Negligence. — The two essential ele. ments of contributory negligence are want of ordinary care by the plaintiff and a causal connection between such want of care and the injury.</p> <p>Same. — Ordinary Care Defined.- — Ordinary care is that degree of care and foresight which a discreet and cautious individual would, or ought to, use if the whole risk and loss were to be his own exclusively.</p>

<p>Mechanic’s Lien. — Notice, Materialman’s, Sufficiency. — The mere wording of a materialman’s notice of an intention to hold a mechanic’s lien is of little importance if it inform the owner and others interested that the person giving it claims to have a lien on the property for materials furnished.</p> <p>Same. — Materialman, Loss of Claim. — Owner Paying Contractor Before Notice of Claim. — A materialman, furnishing the contractor materials, does not lose his lien by the mere fact that the owner of the property paid the contractor in full before he had any knowledge of such materialman’s claim.</p> <p>Same. — Materialman Looking to Contractor. — Loss of Lien. — A material-man does not lose his right to a lien, though he furnish the materials primarily on the credit of the contractor and with the expectation that he should and would pay for them, even if he have no intention, at the time he furnishes such materials, to resort to any lien he might otherwise have.</p> <p>Same. — Materialman’s Averments and Proof. — The material man need not aver nor prove that he furnished the materials upon the credit of the building. If he furnished them for the building and they are used in it, and the improvement is made by the authority and direction of the owner, the right to the lien attaches.</p> <p>Same. — Construction of Statute Liberal. — The statute relating to mechanics’ liens is construed liberally in favor of the mechanic and materialman.</p> <p>Same. — Personal Liability of Contractor for Materials. — A contractor who purchases material for a house is liable to the materialman for its cost.</p> <p>Payment. — Law Making Application. — Where payment is made on a general or running account, without having been applied on any particular item, either by the debtor or creditor, the law makes the application by applying it to the oldest item.</p> <p>Practice. — Amending Exhibit. — Continuance.—The court may permit an exhibit to be amended, and the opposite party, upon a .proper showing, may obtain a continuance by reason of the amendment having been made.</p>

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

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

<p>Contbact. — Construction.—Ambiguous.—Circumstances of Parties.— If the terms of a contract are doubtful or ambiguous, the circumstances and situation of the parties to it may be considered for the purpose of arriving at their intention.</p> <p>Same. — Particular Words Followed by General Words. — Limitations of Rule. — If a particular recital in an instrument be followed by general words, the latter will be qualified by the particular recital; but this rule is limited to those instances where it is plainly and irresistibly to be inferred that the person using the language could not have intended to use the words in the general sense they import.</p> <p>Same. — Agreement to Assume All Indebtedness of Firm. — Schedule of Indebtedness. — Indebtedness Not Enumerated. — A contract by a third individual to pay all the debts of a certain dissolved firm of two persons according to a schedule attached to the agreement, reciting the amount of 'such indebtedness, and containing an agreement to save one of the members of the firm from all liability on the firm’s indebtedness, in consideration of the transfer of all the assets of the firm to such individual, and also stipulating that after a sale of enough of such assets to pay such indebtedness the remainder, if any, should be transferred, at the option of such individual, to the other member at its cost price, or he should pay such other member the cost price of the goods remaining, is sufficient to bind such individual to the payment of indebtedness of the firm not enumerated in such schedule, and of which he had no knowledge when the agreement was made.</p>

<p>Instructions to Jury. — Assuming a Fact in Issue to be Proven. — It is not error, in instructing the jury, to assume á fact as proven, as to which the evidence is not conflicting and is undisputed.</p> <p>Malicious Prosecution. — Probable Cause. — Law and Fact. — In an action for malicious prosecution, "it is for the jury to determine whether certain facts exist, but whether the facts proved or assumed do ordo not constitute probable cause is a question of law which it is the duty of the court to decide.</p> <p>Same. — Probable Cause. — Instruction.—Singling Out Only Part of Facts Tending to Prove Probable Cause. — In such case, it was error for the court to single out certain facts tending to, or offered for the purpose of showing probable cause, and upon such isolated parts tell the jury that if they find the defendants did not honestly believe, or have reason to believe, it to be true, 'no probable cause existed for the prosecution, where there is other evidence tending to prove a state of facts which, if found to be true, would constitute probable cause.</p>

<p>Railroad. — Damages for Stock Killed or Injured. — Interest From Date of Injury Not Allowable. — In an action based on section 5312, R. S. 1894, for damages for stock killed or injured by the locomotive or other carriages run on such road, the amount of recovery is limited by section 5316, R. S. 1894, to the value of the animals killed or the injury done, and interest can not be recovered on the amount of the damages from the date of the injury; for the statute expressly limits judgment to “the value of the animal or animals killed.” Both the right and the remedy, in such case, are created by statute.</p>

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

<p>Mechanic’s Lien. — Finding as to Time of Completion of Work. — Conflicting Evidence. — Appellate Court Practice. — In an action to enforce a mechanic’s lien, where the court has found that the work was completed at a certain time, the appellate tribunal can not disturb the finding when the evidence as to such fact is conflicting.</p> <p>Same. — Admissions of Contractor’s Son and Servant, When not Binding. —Admissions of the contractor’s son, while working for his father, that the time for filing liens for the work done by his father had expired, could not bind the father, where the statements were not made in the father’s presence and were unauthorized by him.</p> <p>Same. — Quaere.—Reviving Right of Lien. — Laches.—After the contract has once been completed, and the statutory limitation begins to run, can a party revive an expired right of lien which he has lost in consequence of laches, by performing some work in the house, such as merely patching the plastering after work has been substantially completed?</p>

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

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

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

<p>Railroad. — Complaint for Damages for Injuries to Passenger While Alighting from Train. — Unsafe Place. — That the complaint is sufficient when the gravamen of the action is that the railway company failed in its duty to provide the plaintiff, a passenger, with a reasonably safe place in which to ¿light from the car, and in inducing her to alight at a point other than the regular station, while she was under the belief, induced by the defendant, that she was about to alight upon the platform of the regular station, see opinion.</p> <p>Same. — Injury to Passenger While Alighting. — Contributory Negligence. —Law and Fact. — Where a passenger, on arriving at her destination, went upon the platform of the car, the night being dark and no light except that of a lantern held by a brakeman, and descended the steps, holding to the railing, when the brakeman took hold of her arm and said, “Now, you will have to take a little jump,” and the brakeman overbalanced her, and she fell down to the ground (three or four feet) the brakeman falling on her, she believing at the time she attempted to alight that she was at the depot platform and did not know otherwise until she fell, — the court can not say, as a matter of law, under such circumstances, that she was guilty of contributory negligence, but it is a question for the jury.</p> <p>Witness. — Expert.—Basis of Opinion.• — An expert witness, in giving his opinion, must first state all the facts upon which he bases his opinion.</p> <p>Same. — Nonexpert.—Opinion as to Physical Condition or Health. — A nonexpert witness may give an opinion as to the health or physical condition of another, based upon facts within his personal knowledge first stated.</p> <p>Evidence. — Res Gestee. — Statements made by a passenger and a brakeman, who had fallen, made immediately after they had arisen from the fall, constituted part of the res gestee.</p>

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

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

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

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

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

<p>Mechanic’s Lien. — Complaint Insufficient to Enforce Lien, Yet Sufficient as Showing Indebtedness by Defendant to Plaintiff. — A complaint, although insufficient to enforce a mechanic’s lien, for failure to show that the materials were furnished for the particular building under consideration, will be good as against a demurrer for want of facts if it show a personal obligation or indebtedness by the defendant to the plaintiff, for the material furnished.</p> <p>Same. — Insufficiency of Evidence to Support Finding. — That the evidence does not support the finding that the materials were furnished for the building in question, see opinion.</p> <p>Pleading. — Complaint Sufficient as Against Demurrer, if it Entitles Plaintiff to Some Relief. — A complaint under which plaintiff is entitled to some relief is sufficient to withstand a demurrer for want of facts, even though the facts averred do not authorize all the judgment demanded by plaintiff.</p>

<p>Bill oe Exceptions. — When Shown to be in Record. — No Independent Entry. — Clerk’s Certificate.- — File Mark. — Where it is clearly and affirmatively shown in the clerk’s certificate to the transcript that the bill of exceptions was duly and properly filed in his office, in vacation, within the time allowed by the court, in term, for the filing of such bill, the bill is sufficiently shown to be in the record, although there is no record or independent entry or statement except the file mark of the clerk and the clerk’s certificate, showing the filing of the bill of exceptions.</p> <p>Evidence. — Transcript of Judgment. — Best Evidence. — Breach of Contract. — Where, in a compromise agreement between a railroad company and an employe, it was agreed that judgment should be rendered in favor of the employe, and that in addition thereto such employe should have future, permanent employment furnished him by the railroad company, which agreement was set out in full in the judgment, it was not error to admit a transcript of such judgment in evidence in a subsequent suit for a breach of the contract for future employment, where no objection was interposed on the ground that it was not the best evidence.</p> <p>Same. — Cross-Examination.—Limits of. — The inquiry, on cross-examination, must be confined to what the witness testified to in chief.</p> <p>Same. — Sufficiency of. — That the evidence is sufficient to support the finding, see opinion.</p>

<p>Judgment. — Motion to Modify, When Properly Sustained. — Where, in an action to recover the purchase-price of an article, payable in installments, the first installment only being due, a motion to modify the judgment by reducing the amount from the whole purchase-price with interest to the amount of the installment due with interest, was properly sustained.</p>

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

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

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

<p>Action. — By Nonresident Against Nonresident. — Brought in this State. —Plea in Abatement. — The fact that both plaintiff and defendant are nonresidents of this State does not deprive plaintiff of the right to bring his action in this State against defendant, provided the defendant is voluntarily within the jurisdiction of the court of the county where the action is brought.</p>

<p>Contract. — For Sale of Land. — A agreed by parol to sell to B a farm for $13,000, and subsequently A, having an opportunity to sell the farm to other parties for $13,800, telegraphed B saying: “Willyou take $400 and let them have it, or will you take it at $13,400?” To which B replied: “I will take $400 and let them have the farm.”</p> <p>A did not sell the farm to such other parties, but negotiated further with B concerning the sale of the farm to him, which was never accomplished. B did not intimate that he was entitled to the $400 mentioned in the telegrams until his negotiations with A had ended. S,eld, that B was not entitled to the $400.</p>

<p>Demurrer. — Defect of Parties. — If the complaint disclose a defect of parties plaintiff, it is insufficient on demurrer for such reason.</p>

<p>Pleading. — Complaint, Sufficiency when Questioned for First Time on Appeal. — Where a complaint is questioned for the first time on appeal, if the complaint contain enough to render judgment thereon a complete bar to another action for the same cause, it will be sufficient.</p> <p>Exceptions. — Essential to Questions on Appeal. — In order to present any question on appeal respecting the rulings of the trial court, an exception must be saved to such rulings.</p> <p>Waiver.— Assignment of Error. — Failure to Argue. — Failure to argue an assignment of error amounts to a waiver of the assignment.</p> <p>Practice — B ill of Exceptions. — Motion to Have Jury Returned for Further Deliberations. — The ruling of the trial court, in refusing to re. quire the jury to return to the jury room and further consider upon a verdict, can only be questioned on appeal by bringing the motion and the court’s ruling thereon into a bill of exceptions.</p>

<p>Appeal. — Necessary Parties. — Dismissal.—Whenever the judgment of the appellate tribunal would affect all the parties to the judgment appealed from, they must all be parties to the appeal, and a submission of the cause by agreement or by joinder in error will not waive the necessity for all parties being before the court. But where the judgment on appeal would not affect a party he need not be made a party on appeal.</p> <p>Pleading. — Complaint for Damages to Land for Gravel Taken by Road Supervisor. — Where a road supervisor has taken gravel for the repair of a highway, and the damages to the land-owner have been fixed, the land-owner need allege and prove nothing more than that such damages have not been paid.</p> <p>Assignment op Eeboe. — When too Indefinite. — An assignment of error that “The court erred in sustaining appellee’s demurrer to the reply to the first paragraph of appellant’s answer as to the answer to which it was carried back,” is not sufficiently definite.</p>

<p>Appellate Court Practice. — Sufficiency of Evidence. — Rules as to Appellate Court, as to Trial Court. — After the trial court has approved a verdict, all presumptions are in its favor in the appellate tribunal, and it will not interfere unless there is an absolute want of evidence fairly sustaining a material and essential fact in issue, or unless it clearly appears that substantial justice has not been done. The trial court is not bound by such presumptions, but is on equal terms with the jury.</p> <p>Record. — Appeal.—Affidavits in Support of Motion for New Trial.- — How Made Part of. — Affidavits filed in support of a motion for a new trial and copied into the transcript by the clerk, no effort having been made to bring them into the record by order of court or bill of exceptions, are not properly in the record.</p> <p>Malpractice. — Evidence.—Character of Physician and Surgeon. — In an action against a physician for malpractice, evidence of good character as a physician and surgeon, in 1893, was not admissible to rebut a charge of negligence in 1886.</p>

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

<p>Watercourse. — Overflow Water. — Surface Water. — The water of a river overflowing its banks, and not flowing in or confined to any particular or permanent way, is surface water.</p> <p>Same. — Railroad.—Overflow Water. — Damages.—Special Finding. — Recovery. — That the special findings, in an action against a railroad company by a land-owner for damages for obstructing the natural course of overflow water of a watercourse, are insufficient to entitle the plaintiff to damages, see opinion.</p>

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

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

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

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

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

<p>Landlord and Tenant. — Tenant Holding Over, When Oreates a Lease for Another Term of Equal Duration. — If a lessee for a certain period fixed by the lease holds over such period, and the landlord accepts or demands rent for the holding over after the expiration of the original lease, the holding over, with such implied consent of the landlord, creates by implication a new lease for another term of equal duration, and upon the same conditions as the original tenancy ; but this rule is limited to cases where the fixed period of the lease is for less than one year.</p> <p>Same. — Holding Over. — Tenancy from Year to Year. — Where the period of the tenancy is for a year or more, such holding over creates a new tenancy from year to year, and not for the same period of duration as the old one.</p> <p>Same. — Lease, When not Created by Parol or Implication. — A lease for more than three years can not be created by parol nor arise by implication of law.</p>

<p>Damages. — Amount of Recovery. — When Appellate Court Will Not Interfere. — If there is a conflict in the evidence as to the amount of the recovery or damages, the appellate tribunal will not interfere with the discretion given to the jury and the trial court.</p>

<p>Damages. — As to Land. — How Proven. — The measure of damages for injury to real estate is the difference in its value by reason of the injuries,'which is ascertained by proof of the value of the land before and after the injury.</p> <p>Same. — As to Crops. — How Proven. — The measure of damages to crops is proved by showing the difference in the value of the crops with and without the injury.</p> <p>Same. — How Proven. — Opinion Evidence. — Damages may be proven by opinion evidence, but not, however, by opinions of what the injury amounts to in dollars and cents, for it would be an attempt to substitute the opinion of the witness for that of the jury on a question directly involved in the issues.</p> <p>Appellate Court Practice. — Error Prima Facie Prejudicial. — Reversal. — Harmless Error. — Where an error complained of by appellant is prima facie' prejudicial, it devolves upon appellee to show that it was harmless before the judgment will be affirmed.</p>

<p>Highway. — Used Territory, at Railroad Crossing, Including More than Actual Boundaries. — Rights of Traveling Public. — Irrelevant Instruction. — Misleading Jury. — la an action by the father for the death of his son on a railroad track at a place where it crossed a highway, the court instructed the jury that “a public street * * is a public highway, and such street is not necessarily confined to the boundaries of the same as originally laid out and shown by the plat; but if for more than twenty years the boundaries of the street have been occupied, used and recognized by the public as including more territory than the actual boundaries, then the persons traveling upon or along such street are authorized to regard the whole of such territory as the street.”</p> <p>Held, that owing to the unsatisfactory character of the evidence in relation to the use and occupancy by the public of the place where the accident occurred, as a part of the street, the instruction in question was not pertinent and applicable to the evidence, and was calculated to mislead the jury.</p> <p>Same. — Street.—Uailroad Right of Way. — The use of a railroad right of way without the consent of the railroad company, unless founded on some claim of right, is not sufficient to authorize the traveling public to regard that part of the track as a part of the street or highway.</p> <p>Same. — Railroad Right of Way. — Street, Actual Use Beyond Boundaries as Platted. — Rights of Traveling Public. — It a part of a railroad right of way was occupied and recognized as a part of' a street before the construction of the railroad, and such use, occupancy and recognition afterwards continued, then, as between the railroad company and the public, it would perhaps be proper to say to the jury that the rights of persons upon the street, as such, would be determined by the question as to what was in fact the street, and not what was included in the plat.</p>

<p>Master and Servant. — Assumption of Risk Incident to Service. — When Rule Does Not Apply. — Where the gist of the negligence, on the part of the master, complained of, is the failure to properly instruct an inexperienced servant as to the use and operation of a dangerous machine and the working of and about the same, and it is shown that proper instructions were not given the servant, and that he was without experience in such employment, of which the master had knowledge, and the dangers were apparent only to an experienced man, the rule that the servant assumed the risk incident to the employment does not apply.</p> <p>Same. — Duty of Master to Instruct Inexperienced Servant. — General Warning of Danger. — Simply warning an employe of danger generally does not excuse the master from pointing out the particular danger of his employment, and to so instruct him as to enable him to avoid such danger.</p> <p>Same. — Interrogatories to Jury. — That the answers to interrogatories are not sufficient to overcome the general verdict, see opinion.</p> <p>Damages. — •What May be Considered in Estimating. — Deprivation of Pleasure and Satisfaction of Free Use of Limb. — Instruction.—Personal Injury. — In an action for personal injury, the crushing and lacerating of a hand and arm, it was not error to instruct the jury that in estimating the plaintiff’s damages, if they were found, they should take into consideration the extent of plaintiff’s injury, his bodily and mental suffering, and the fact “that he is deprived of the pleasure and satisfaction in life that those only can enjoy who are possessed of a sound body and the free use of all its members.”</p> <p>Instructions to Jury. — Appellate Court Practice. — Party Complaining of His Own Instructions. — A party can not complain of instructions which the record shows were given at the request of the party himself.</p>

<p>Misconduct of Pabty. — Boarding Witnesses at Bestaurant of a Juror. —Where a party to an action made arrangements to board all his witnesses (fifteen or twenty in number) at a hotel during the trial, at reduced rates, under which arrangement they took one meal (dinner), and afterwards, on the same day, and before the next meal, the jury having been empanelled and sworn and the statements of the parties made to the jury, plaintiS took his witnesses to a bakery and restaurant owned and operated by one of the jurors, and boarded them there during the continuance of the trial, and of such fact the juror had knowledge; it appearing that plaintiff did not know, when he first went to the restaurant, that the juror was the owner thereof (but whether he learned such fact before he made arrangement with the clerk, or person in charge, to take them there, is not shown), — the circumstances under which plaintiS took his witnesses to the restaurant of the juror throw grave suspicion on him, notwithstanding his explanation (that they went to the restaurant because of the crowded condition of the hotel) seems fair and reasonable, it not clearly appearing that plaintiff did not know the juror was the proprietor thereof before he completed arrangements to take his witnesses there.</p> <p>Bams. — Knowledge of Complaining Party. — Beversible Error. — But because of the failure to show that the complaining party did not have knowledge of such conduct before the close of the trial, such conduct does not amount to reversible error.</p> <p>Pleading. — Absence of Contributory Negligence, When Sufficiently Appears. — No General Averment. — The absence of the averment of freedom from contributory negligence, in an action for tort, is not a fatal defect, where it appears from the statement of the facts and circumstances under which it occurred, that the plaintiS was without contributory fault or negligence.</p> <p>Same. — Bailroad.—Damages.—Nuisance.—Malodorous Freight. — Complaint. — More must be shown than annoyance and injury by ofiensive odors from either standing ormoving cars close to plaintifi’spremises to entitle plaintiS to damages. Abuse of such right must be made to appear, i. e., that cars loaded with malodorous freight were unlawfully or wrongfully suBered to remain near plaintiñ’s premises an unreasonable length of time.</p> <p>Appellate Court Practice. — Error Affirmatively Shown by Complaining Party. — It is the duty of one complaining of error to show, by proper argument and authority, wherein the error consists.</p>

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

<p>Appellate Court Practice. — Assignments of Error Based on Bulings in Former Actions. — Where the record discloses that certain of the assignments of error are based on rulings made in a former action which was dismissed before the case in which they aré assigned was commenced, the court can not reverse the judgment rendered in the subsequent action on account of the rulings made in a former action for the same cause.</p> <p>Municipal Corporation.' — Street.—Dedication.—Suit for Damages for Appropriation of Land. — Necessary Allegation.- — Where a fair construction of a complaint is that plaintiff’s land therein described was appropriated for permanent use as a street, a recovery of damages thereon works a dedication of the land to the city for street purposes ; and in such case it is not necessary for plaintiff to aver a willingness to convey the land described before he could recover its value.</p>

<p>Special Verdict. — Construction. — Intendment. — Essential Facts.— A special verdict is to be construed reasonably and fairly, yet it must, without aid from intendment or inference other than those necessarily following, contain within itself all those facts essential to establish the case before judgment can be rendered upon it in favor of him on whom rests the burden of proof.</p> <p>Same. — Insufficiency ofAction for Tort. — Mecovery.—That the special verdict in an action for tort, for failure of the city to keep a certain one of its streets in reasonably safe condition for travel, is not sufficient to entitle plaintiff to recover damages, see opinion.</p>

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

<p>Municipal Cobpokation. — Sewer.-—Void Assessment. — Assessment not According to Benefits. — An assessment for a public sewer made under the statute for street improvements, and placing the assessment not according to the benefits received but according to the linealomeasurement of the property fronting on the sewer, is void.</p> <p>Same. — Sewer.—When Property-Owner not Estopped. — Improvement not Made Under Color of Statute.- — A property-owner has the right to assume that his property will be assessed for improvements at least under color of the statute, and where the remedy sought is ijot a collateral but a direct proceeding attacking the assessment, there is no estoppel.</p>

<p>Master and Servant. — Negligence.—Vice-Principal.—Superintendent of Bepair Shops. — Where one of the duties of a manager and superintendent of car repair shops was to examine particularly for all defects in cars and to mark the same with chalk, so that each defect would be noticeable to laborers employed thereon, a neglect of such foreman to mark a defect which he might have discovered on proper inspection, whereby a laborer employed to repair the defects thus indicated was injured by reason of the unsafe place caused by such neglect, the duty neglected was one owing from the master to the servant.</p> <p>Same. — Assumed Bisks. — Employes assume all the ordinary, obvious risks incident to their employment, but they assume no extraordinary and unknown risks caused by the employer’s breach of duty.</p>

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

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

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

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

<p>Federal Court. — Removal of Causes. — Jurisdiction.—If a complaint seek to recover “two thousand dollars and all other proper relief,” the amount in controversy is only the §2,000, and jurisdiction of ■ the cause is not in the United States court.</p> <p>Railroad. — Expelling Passenger from Car. — Special Verdict, Finding as to Expulsion. — In an action for damages for being wrongfully and forcibly ejected from a car against plaintiff’s will, she being a passenger, a finding that the “porter stopped the train and ordered her [plaintiff] to get off the train, in the presence and hearing of the conductor in charge of the train, and then and there forcibly and against her will ejected and removed her from the car and train,” — sufficiently shows that the passenger did not voluntarily leave the train at such point.</p>

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

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

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

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

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

<p>Special Yeedict. — When Inferential Fact of Negligence May Be Brawn By the Court. — If the ultimate facts in a special verdict are such that only one inference may be drawn from them, viz., negligence or no negligence, the jury need not find the inferential fact of negligence also, and the court will determine, as a matter of law, from the facts found, whether there was or was not negligence.</p> <p>Same. — When Inferential Fact of Negligence Must Be Brawn By the Jury. —If, however, the ultimate facts are such that reasonable men of equal intelligence may honestly and rationally differ as to the inferences and conclusions to be drawn from such facts, it is for the jury to determine the inferences also; and, in such cases, these inferences must be stated in the verdict.</p> <p>Same. — Contributory Negligence, When Freedom From Sufficiently Found. —Inferential Fact. — It is not enough for the jury to state in their verdict, in an action for tort, that the injury was received by the plaintiff without his contributory negligence. The verdict must state some fact or facts from which the inference of freedom from contributory fault may be drawn, either by the court or jury, or both.</p> <p>Same.— Ultimate Facts. — Inference of Negligence or Want of Negligence. —Province of Court. — The court must determine whether there were such ultimate facts found as authorized the jury to draw the inference of negligence or want of contributory negligence.</p> <p>Same. — Freedom From Contributory Negligence. — Becovery.—The special verdict must affirmatively establish the plaintiff’s freedom from contributory negligence, as well as the defendant’s negligence, before there can be a recovery.</p> <p>Railroad. — Negligence.—Fire Escaping From Bight of Way. — Special Verdict. — Theory of Complaint. — That the special verdict contains sufficient facts to support the theory of the complaint that the injury complained of resulted from the defendant’s (the railroad company’s) negligence in permitting fire to escape from its right of way onto plaintiff’s premises, see opinion.</p> <p>Same. — Special Finding. — Quantity of Combustible Material on Bight of Way. — A finding that the railroad company had allowed large quantities of dry grass, weeds and combustible material to accumulate on its right of way for more than two months previous to the time of the fire, when such material was in a highly inflammable condition, in sufficient quantities to cover the right of way from within eight feet of the track continuously up to and adjoining plaintiff’s premises, is definite enough as to the quantity of such material.</p> <p>Same. — Special Verdict. — Negligence.—Fire Escaping From Bight of Way. — The fact that the special findings show that defendant was negligent in setting out the fire is not sufficient to vitiate the finding that it was negligently suffered to spread.</p> <p>Same. — Fire Escaping From Bight of Way. — Negligence.—It is not necessary, to constitute negligence in suffering the fire to spread, that defendant should have been present or had notice of the fire and failed to do anything to put it out. It was the negligence of defendant antecedent to the fire that created the liability.</p>

<p>Oeimistal Law.- — Indictment, Sufficiency of. — Oounty fair. — Leasing Grounds for Gaming Devices. — An indictment which charges, in substance, that defendant and fourteen others, acting as the directors, officers and managers of the Kentland Agricultural Fair Association, organized under and pursuant to the laws of the State of Indiana, on or about the 14th day of September, 1894, at said county and State, did then and there unlawfully rent, lease and donate a portion of the grounds and premises owned and used and occupied by the above named association to one G. to be used for the purpose of carrying on a game of chance with dice, etc., states a public offense, and is sufficient.</p>

<p>Criminal Law. — Intoxicating Liquors, Selling to Minor. — Sufficiency of Indictment. — An indictment charging that “Stephen Allen, late of said county, on or about the 15th day oí June, 1894, at said county and State aforesaid, did then and there unlawfully sell intoxicating liquors to one Avery Barnes, he, the said Avery Barnes, being then and there a person under the age of twenty-one years and a minor, ’ ’ is sufficient on motion to quash.</p> <p>Same. — Intoxicating Liquors. — Sale.—Price.— In charging such offense, it is not necessary to state the price of the sale, for tke charge of a sale necessarily includes a money consideration and a price.</p> <p>Same. — Sale to Minor. — Statute Construed.■ — It is the purpose of the statute to make all sales of intoxicating liquors to minors a criminal oSense.</p> <p>Same. — indictment, Purpose of. — The purpose of an indictment is (1) to inform the court of the facts alleged, so that it may decide whether or not they are sufficient, in law, to support a conviction; and (2) to furnish the accused with such a description of the charge against him as will enable him to make his defense and avail of his conviction or acquittal for protection against further prosecution for the same offense.</p> <p>Same. — Indictment, Sufficiency of. — Minor Circumstances. — Minor circumstances, merely descriptive of the main fact, need only be stated with that degree of particularity that carries knowledge of the offense and bars a future prosecution. If such circumstances are not the vital elements of the offense, it is unnecessary to descend into details and describe them minutely.</p> <p>"Same. — Indictment Following Language of Statute. — It is the general rule that an indictment or information is sufficient if it charges the offense in the language of the statute or in terms substantially equivalent thereto.</p>

<p>Highway. — Along Bank of Watercourse.— Watercourse Encroaching On.— Belocation. — Statute Construed. — The statute, sections 6780-6784, R. S. 1894, providing for the relocation of a highway along the bank of a watercourse, when the washing away or falling in of the bank has rendered the highway unsafe, awards' damages to the land-owner or occupant only in two instances, viz.: (1) when the fence shall be removed, and (2) when the road shall be changed to the rear of a building.</p> <p>Same. — Damages.—Case not Within Statute.— Complaint Insufficient.— Statute Construed. — Where the plaintiff’s claim or complaint is that owing to the high water of 1892 and 1893 the road or highway entirely washed away and caved into the river, “and that the public and supervisor of said road have moved in upon his lands and taken a strip thirty feet wide and one mile long for a public highway, in place of the highway so washed away as aforesaid,” etc., the pleading does not bring the case within the remedy provided by statute, sections 6780-6784, R. S. 1894.</p> <p>Same. — Statute Construed. — Compensation.—Bight to Take Property. — ■ There is nothing in such statute which confers power on the supervisor to take property for road purposes which did not exist before the law was passed, except in the two instances above mentioned, and then full compensation is provided.</p> <p>Same. — Liability of County for Property Taken. — Before the county can be held liable for land so appropriated, it must be shown that the county, in some way, appropriated or condemned the new road under and by virtue of some statute, or at least the proper officials must so act in the premises as to make the county responsible for their acts.</p> <p>Same . — Statutory Bemedy. — Construction.—If, in such case, a remedy has not been given, the court is powerless to place it in the statute by construction.</p> <p>Same. — Constitutional Law. — Just Compensation. — Such sections of the statute (6780-6784, R. S. 1894) are not unconstitutional on the ground that they authorize the taking of property without just compensation.</p>

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

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

<p>Bill of Exceptions. — Not Signed by Judge. — A bill of exceptions not signed by the presiding judge is not properly a part of the record.</p> <p>Negligence. — Law and Fact. — Master and Servant. — There are cases in which the court may rule as a matter of law that certain appliances and the manner of their construction are reasonably safe or unsafe, and that the master is or is not negligent in providing them; and between these two extremes there is a large number of instances in which negligence or want of negligence of the master in providing given appliances is a question for the jury.</p> <p>Same. — Law and Fact. — Master and Servant. — Railroad.—Whether or not a railroad company was guilty of negligence in providing a car with the brake staff and wheel projecting near the center of the running board, whereby a brakeman was injured, is a question for the jury.</p> <p>Master and Servant. — Assumed Risk. — Law and Fact. — Obvious Danger. — As a general rule, when the danger to a servant in the prosecution of his employment is open and obvious, he. assumes the risk. He is bound to make use of his senses, and if he proceed to work when he knew or could have known of the danger by using his senses, he will be deemed to have accepted the risk. But there is a class of cases where the danger is obvious, in which the assumption of the risk can not be ruled as a matter of law, but is a question for the jury, viz.: Where the servant is surrounded by extraordinary circumstances not of his own making, or where his attention was diverted from the danger by great or more important duties to his master.</p> <p>Same.- — Assumed Risk. — Law and Fact. — Railroad.—Brakeman.—Personal Injury. — Where a car was so constructed that the brake staff and wheel projected near the center of the running board, of which fact the brakeman was ignorant, and in response to an urgent call to loosen brakes, and hurriedly attempting to find the brake or brakes that were holding the train, and in so doing his attention was diverted from a danger (the brake staff and wheel so constructed) which might otherwise have been apparent, and is injured by tripping upon the same, the question of assumed risk is a question for the jury.</p> <p>Same. — Assumed Risk. — Exigencies of Case. — In such case, it was proper for the jury to take into consideration all the exigencies of the occasion, and the things that operated most strongly on the servant’s mind, in determining whether or not he assumed the risk.</p> <p>Verdict. — Sufficiency of Evidence. — That the evidence is sufficient to sustain the verdict, see opinion.</p> <p>Dissenting Opinion by Ross, J.</p>

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

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

<p>Drainage. — Public Ditch. — Bepairs and Cleaning. — Action by Township Trustee for Work of Cleaning and Bepairing. — Conditions Precedent.— Notice.— Time. — The fixing of the time, and notice thereof, within which a landowner shall repair and clean the allotment of a public ditch set off to him by the township trustee are conditions precedent to the right of the trustee to recover for having such work done, on failure of the landowner to repair and clean the same between the 1st day of August and the 1st day of November.</p> <p>Same. — Party Plaintiff. — Such action against the landowner may be brought in the name of the trustee or in the name of the township.</p>

<p>New Tbial. — Finding Contrary to Evidence. — Promissory Note. — Set-Off. — That the answer of set-off to an action on a promissory note, wherein it is alleged that a judgment against the plaintiff’s assignor was assigned to defendant prior to the assignment of the note to plaintiff, is sustained by the evidence, and that the finding for plaintiff is contrary to the evidence, see opinion.</p> <p>Opinion on petition for rehearing by Davis, J.</p>

<p>New Trial. — Answer to Interrogatory to Jury not Sustained by the Evidence.- — It is not, ordinarily, sufficient to authorize a new trial to show that an answer to an interrogatory consistent with the general verdict is not sustained by the evidence.</p> <p>Vebdict. — Contrary to Instructions.- — Contrary to Law. — The fact that the verdict is contrary to the instructions of the court does not necessarily render it contrary to law.</p> <p>Railroad. — Duty to Keep Premises Safe. — Delivering and Deceiving Freight.- — A railroad company, which is a common carrier of goods, and by its conduct invites or induces the public to use its premises, such as depots and other places set apart for receiving and discharging freight, is under special obligation to keep such premises safe for such use for all persons coming upon the premises to transact business with such company, and among those who are entitled to this protection are such persons as came there for the purpose of delivering or receiving freight, who are entitled to protection from approaching trains.</p>

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

<p>Landlord and Tenant. — Lease.—Nature of. — Notice.—Where there was a lease for one year, with the following provision: “This agreement to run as long as G-- [the lessor] and D — — [the lessee] agree, but when they do not agree, G-is to have full possession * * at once,” and before the expiration of the year G-gave X)-notice that he could not hold over, such notice was sufficient, without regard to the length of time of the notice before the year expired, and if the tenant held beyond the year, without a new lease having been made to him, his possession was unlawful, and no further notice was necessary before bringing action for possession.</p>

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

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

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

<p>Marriage Contract. — Sufficiency of Evidence. — The evidence, to sustain the validity of a marriage contract, must show that it is binding upon both the parties.</p> <p>Same. — Evidence.—Decree Granting Plaintiff Divorce. — In such case, a certified copy of the decree granting plaintiff a divorce from her husband, is competent evidence.</p> <p>Damages. — Excessive.—Jury Influenced by Prejudice, etc. — New Trial.— When, upon an examination of the evidence, it appears to the mind of the court that the damages assessed are so excessive and unjust that the jury, in assessing them, must have been influenced by passion, prejudice or partiality, or have proceeded upon a wrong principle, a new trial will be ordered.</p>

<p>Contract. — Condition for Maintenance in Deed. — Breach of. — Ability of Benedciary to Support Himself. — -Where a father conveyed to his son certain land, “upon the express condition and consideration that the said grantee shall furnish and supply * * [B], a nephew of the grantor, with suitable food, shelter, and raiment, when the said * * [B] shall be unable to provide for himself,” a refusal of B’s request for shelter, etc., can not be construed as a breach of the condition of the conveyance, where the record does not disclose but that the refusal was because of B’s ability to provide himself with all he needed, and where there are circumstances evincing a full recognition of his (the grantee's) legal duty and a willingness to perform it.</p>

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

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

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

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

<p>Superior Court. — Beview in General Term. — Buling on Demurrer.— Judgment Beversed. — •'Where there are several affirmative paragraphs of answer, to all of which demurrers are filed, except the third, which are overruled, and plaintiff elects to stand by his demurrer to the first and second paragraphs of answer, and appeals from the judgment of the special term of the superior court, it is error for the general term to reverse the judgment simply because the demurrer to the first paragraph of answer should have been sustained.</p> <p>Same. — Special Term. — Buling on Demurrer. — Harmless Error. — In view of the record, the overruling of the demurrer to the first paragraph of answer was harmless, and the general term should have affirmed the judgment of the special term, notwithstanding such error.</p>

<p>Real Estate. — Sewer and Street Assessment Liens Paid by Purchaser and Solder of Equitable Title.— When Vendor Liable for Reimbursement, When Sot. — Where real estate is sold and the purchase-price is to be paid in ninety-six monthly installments, a deed for the property to be made to the vendee when seventy-five of such installments have been paid, and in the event of failure to pay the installments as the same mature, the previous payments to be retained by the vendor as rent, and the vendee to forfeit all rights to the property as purchaser thereof, the vendee can not recover from the vendor the amount of sewer and street assessments paid by him to protect the property, andhssessed against the property after the contract of sale, unless the legal title should fail to vest in the vendee by reason of his failure to pay the installments as they mature, in which event the vendor would receive the enhanced value of the property on account of the improvements and should reimburse the vendee for the improvement assessments paid by him.</p>

<p>Liens. — Priority of. — Street Assessment Liens. — The Last Shall he First and the First Last. — Since it is the theory of the law that every street improvement enhances the value of the property at least to the extent of the assessment lien, so every improvement made increases the security for the payment of assessments previously made, and, therefore, it follows that the last assessment for such improvement must take precedence, as a lien, over those previously-made.</p>

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

<p>Alienating Husband’s Affections. — By Parents of JPusband. — Damages. — Special Verdict, Sufficient to Entitle Plaintiff to Recover.— In an action for damages by the wife against the parents of her husband, for alienating his affections from her, the special verdict states facts entitling plaintiff to judgment, which establishes that plaintiff, in all things, deported herself as a wife should, and was, therefore, blameless; that the defendants maliciously alienated her husband’s affections from her by falsely and-maliciously telling her husband false and malicious reports concerning her, thereby causing him to refuse to live with or provide for her.</p> <p>Same. — Special Verdict. — The failure to set forth in the verdict the nature and character of the statements made by defendants to plaintiff’s husband does not vitiate the same.</p> <p>Same. — Essentials.—Construction.—The verdict is to be construed reasonably and fairly, yet keeping in mind that it must contain within itself, without aid by intendment or inference other than those which necessarily follow, all those essential facts which are required to authorize a recovery by the party on whom rests thé burden of proof.</p>

<p>Appellate Court Practice. — Filing in Appellate Court a Substitute for Pleading Lost in Court Below. — The Appellate Court has no power to grant leave to file substituted pleadings for those lost in the court below. Such relief must be sought in the trial court.</p>

<p>Railroad. — Person Entering Upon Track in Front of Engine Beady to Move at Any Moment. — Failure to Look and Listen. — Contributory Negligence. — Where one enters upon a railroad track in front of an engine which is liable to move at any moment, and walks along the track in front of it for a distance of three hundred feet or more, and neither looks nor listens to see whether the engine is moving, and is struck by the engine when he might have avoided the accident by the exercise of ordinary care, such conduct amounts to contributory negligence.</p> <p>Same.— Walking in Front of Moving Train. — Presumption that Such Person Will Leave Track in Time to Avoid Injury. — Contributory Negligence. — Becovery.—When a person is walking on a railroad track in front of an approaching train the servants in charge of the train have the right to presume, up to the last moment, that he will step off the track in time to avoid injury, where it is possible to do so. And even if such person has a right to walk on the track, the right of the company in running its trains takes precedence over his, and he must, by due exercise of his senses, take proper precaution against injury, or failure to do so will amount to contributory negligence and defeat a recovery, regardless of defendant’s negligence, unless the injury was willfully inflicted.</p> <p>Interrogatories to Jury.— When Will Override General Verdict. — Answers to interrogatories override the general verdict only where both can not stand, and this antagonism must be apparent on the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can direct judgment in favor of the party against whom a general verdict has been rendered.</p>

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

<p>Real Estate. — Trespass. —Answer, Bightful Possession. — Owner.— Remote Grantee. — In an action for damages for trespass to real estate for cutting and carrying away clover and timothy hay growing thereon, an answer was sufficient which alleged that defendant purchased the growing hay from the owner of the land, by whom he was put in possession thereof, and so continued until it was cut and carried off; the plaintiff being a remote grantee of the owner who sold the hay, and subsequent to the sale.</p> <p>Same. — Parol Contract. — Sale of Growing Ray. — Possession.—A parol contract for the sale of an interest in real estate for a valuable consideration may be validated by possession taken and given under the contract.</p> <p>Same. — Equity.—Bightful Fossession.— Wrong-doer. — Equity will not permit one who has rightfully gone into possession as purchaser to be transformed into a trespasser at the will of the vendor or his privy.</p>

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

<p>Raxlkoad. — Liability for Stock Injured on its Tracks by Season of Defective Fencing. — Stock not Struck by Locomotive or Oars. — Statute Construed. — The liability of a railroad company for stock injured or killed on its tracks by reason of its failure to properly fence the same, is limited to cases where the stock is struck by a locomotive or cars.</p> <p>Concurring opinion by Davis, J.</p> <p>Dissenting opinion by Gavin, J., which is concurred in by Lorz, J.</p>

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

<p>Libns. — Priority of. — Mechanic’s Lien. — Mortgage.—Estoppel in Pais.— Where M., who is entitled to a mechanic’s lien against the property of a corporation, informs one with whom the corporation is negotiating a loan that he releases all claim to a lien on said property, on the faith of which representation such person makes the loan and accepts a mortgage on the property as security therefor, in the belief that such mortgage was the first and prior lien thereon, and M. having (with full knowledge of all the facts and circumstances) accepted and retained a part of the money so loaned, he is, in equity and good conscience, estopped from asserting that his mechanic’s lien (which he afterward filed) is superior to such mortgage lien.</p>

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

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

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

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