Volume 128 — Indiana Reports

<p>Will. — Life-Estate.— Power of Sale. — A testator devised all his real estate to his wife “ for and during the time of her natural life,” with directions to her to conduct the farming operations thereon in the same manner as the testator would do if he were still living, with a view of keeping their children “ together at home so long as they may be under the age of twenty-one years, and may desire to remain,” with a gift to her of all the interest on liis money, and other annual profits of his “estate for her maintenance and the support ” of their family “ so long as she shall live;” and provided that at her death all his realty and personalty remaining should be divided among their children, share and share alike; and also provided that, in order to pay debts, costs of administration, or for the payment of any sum given by the will, the executors could sell and convey at any time, without an order of court, on such terms as they saw fit, any of the real or personal property of the testator, except the home farm, unless in case of the most absolute necessity.</p> <p>PTeld, that the will vested in the wife a life-estate in the land and the fee in the children, subject to be divested only in case a sale became necessary to pay debts, costs of administration, or any sum provided by the will to be paid.</p> <p>Deed. — Warranty.—Estoppel.— Subsequently Acquired Title.— Any subsequently acquired title by a grantor in a warranty deed to the premises conveyed by him inures to the benefit of the grantee, and such grantor is estopped to claim title thereto.</p>

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

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

<p>Marbied Woman. — Loan to. — Suretyship.—Where a married woman personally applies for a loan, and the loan is made in good faith under the belief that the money is for her own use, and she executes a mortgage upon her separate property as security, her husband joining, such married woman is liable as principal, and the fact that there is a secret understanding between the husband and the wife that the money is being borrowed for the husband’s use, and is handed to him by the wife as soon as received, is immaterial.</p>

<p>Life Insubaítce. — Premium Overdue and Unpaid.— Validity of Provision Against Liability. — A provision in a policy of insurance that the insurer shall not be liable for a loss occurring while a note given for premium is overdue and unpaid, is valid, and exonerates the insurer from liability while such delinquency continues.</p> <p>Same.— Waiver of Forfeiture Incurred by Non-Payment of Premium. — A provision in a policy of insuz-ance pz-oviding for the forfeiture of the policy for non-payment of the premium is for the benefit of the insurer, and may be waived by it.</p> <p>Same. — Premium Note Overdue. — Extension of Time of Payment. — Loss Luring Extension. — A clause in a policy of life insurance provided that if any premium should be settled by note, such settlement should not be deemed a payment, but only an extension of the time for the payment of that premium ; and if the note, or any z-enewal of it, should not be fully paid when due, then, for any loss occurring while such note remained due and unpaid, the insurer should not be liable, but the whole amount of the premium included in such note should be considered as earned, and the insurer might collect it. The insured failed to pay a premium when due, and gave his note therefor, due in seven months, and before this note was due, the time of payment was extended by mutual agreement five months, during which five months he died.</p> <p>Held, that there was a sufficient consideration to support the agreement to extend the time of payment the extra five months, that it was not a mere indulgence to the maker; and that the insurer was liable for the loss occurring under such policy.</p> <p>Same. — Proof of Extension of Note. — Tile Season. — Where it is alleged that the note was extended izntil the season for the sale of tile for a designated year had expired, evidence of the period constituting the tile season is admissible to show such extension.</p>

<p>Railroad. — Appropriation of Land for Right of Way. — Measure of Damages. — Evidence.—In a proceeding by a railroad company to appropriate land for its right of way, it is proper to prove the value of the land without the road across it, and its value when divided by the road into parcels, and it is proper for the jury to consider such evidence in assessing the damages.</p> <p>Same. — Appropriation Proceedings. — Jurisdiction.—The principal object of proceedings to appropriate land for the right of way of a railroad is to appropriate and acquire a title to the land, and the assessment of damages is a mere incident to and arises out of the act of appropriation ; and the Supreme Court has jurisdiction on appeal.</p> <p>Practice. — Objection to Evidence. — Where part of the answer of a witness is competent, though part is incompetent, it is not error to overrule a motion to strike out such answer.</p>

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

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

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

<p>Summons. — Omission of Full Names of Plaintiffs. — Motion to Quash. — Where the Christian names of the plaintiffs are not given in full in the summons, but are set out in the complaint, it is not reversible-error to overrule a motion to quash the summons.</p> <p>Practice. — Complaint.—Numbering Paragraphs. — In a suit to foreclose a chattel mortgage securing two notes, where the cause of action is stated in one paragraph of the complaint, it is not error to overrule a motion to require the plaintiff to separately state and number his causes of action.</p> <p>Interpleader. — Bill.—Sufficiency of. — A bill of interpleader filed under section 273, R. S. 1881, which does not aver that the alleged claimant ever demanded payment of the note sued on, or claimed that it had any right to collect the note, nor aver that the defendant paid, or offered to pay, the amount due into court or surrender the mortgaged property, is demurrable.</p> <p>Chattel Mortgage. — Foreclosure.—Failure to Object to Form of Judgment. —In an action to foreclose a chattel mortgage, where the notes secured waive valuation laws, but the mortgage does not, and the judgment is that the mortgage be foreclosed and the property sold according to law, to pay and satisfy the indebtedness, the judgment will not be reversed, there being no objection to its form, on the ground that the judgment is for the sale of the mortgaged property without relief.</p>

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

<p>•Constitutional Law.— Uniformity of Statute, — Local or Special Legislation. —A statute which is. of general and uniform operation throughout the State, and operates alike upon all persons, under the same circumstances, is not subject to the objection that it is special or local legislation.</p> <p>Same.— Uniformity in Taxing Disirict. — Ii a tax law provides that the rate of assessment and taxation shall be uniform and equal throughout the locality in which the tax is to be levied, it does not violate the section of the Constitution requiring that a’tax law shall provide for a uniform and equal rate of assessment and taxation.</p> <p>Fbee Gbavel Road. — Act of 1889for Purchase of Road is Valid. — The act of March 8, 1889 (Acts 1889, p. 276), providing for the purchase of toll roads is constitutional, and does not violate either section 22, article 4, or section 1, article 10, of the Constitution.</p> <p>Same. — Majority of Votes Cast Gives Authority to Purchase. — If the requisite number of freeholders, citizens of two or more townships, jointly petition the board of county commissioners for an election to determine if a certain designated toll road shall be purchased and made a free road, and an election is ordered and held pursuant to the request of such petition, such townships thus petitioning constitute an election district; and if a majority of all the votes cast in such district is in favor of such purchase, the purchase must be made, although a majority in one or more of the townships is against it.</p> <p>Same. — Exemption of Realty from Taxation.— Validity of Statute. — The provision in the statute exempting from taxation real estate previously assessed for free gravel roads, until other property has paid an amount equal to such assessments, does not render the statute void.</p> <p>Same. — Objections to Proceedings.— When to he Made. — Objections to the petition for an election, notice thereof, appraisement of the road, and reguIarity of the election must be made before the final order for the purchase of the road is entered by the board of county commissioners.</p> <p>Statute. — Object in Construing. — Isolated Words or Sentences. — The object to be attained in construing a statute is to ascertain the intention of the Legislature which passed it, which intention is to be ascertained by looking to the whole statute, and not in the consideration of isolated words, or sentences.</p>

<p>Mechanic’s Lien. — Surety on Gontractor’s Bond can not Enforce Lien for Materials Furnished. — A surety on a contractor’s bond who undertakes that the contractor shall pay for all materials used in the building can not enforce a lien for materials furnished by him at the request of such contractor.</p>

<p>Estoppel. — Sale of Heal Estate. — Acquiescence.—Pleading.—In an action to enjoin the sale of certain real estate on execution to satisfy a judgment i'n favor of the defendant and against a third person, the complaint alleged that before the judgment was recovered the real estate was conveyed to the plaintiff' and the deed recorded on the same day. The answer alleged that at the sale on execution (which took place after the complaint was filed) the plaintiff stood by and saw the real estate sold as the property of the judgment debtor and purchased by the judgment creditor and made no claim thereto, but it failed to allege that the defendant had no notice of the sale to the plaintiff of the real estate in controversy.</p> <p>Held, that the answer was insufficient as a plea of estoppel, and was demurrable.</p>

<p>Easement. — Parol lácense.■ — When Irrevocable. — A naked parol license to enjoy an easement over land is revocable by the licensor at any time while it remains executory, but an executed parol license to use another’s land, granted upon a consideration, or upon the faith of which money has been expended, can not be revoked.</p> <p>Quieting Title. — Insufficiency of Answer Setting up an Easement,. — In an action to quiet title, an answer which, without denying plaintiff’s title, sets up an easement in the land as a full defence to the action, is demurrable.</p> <p>Same. — Railroad.—Easement.—Directing Verdict. — In a suit against a railroad company to quiet title, where it was a material question whether the company had avalid easement in the land, depending upon whether the entry upon said land by the company and the construction of the roadway were with the knowledge and consent of the owner, and the owner testified that he objected to and protested against the entry, which statement was not denied by the defendant, it was error in the court to take the case from the jury and direct a verdict for the company. Practice. — Overruling Demurrer to Bad Answer. — Sustaining a demurrer to a good special answer, when the facts pleaded can be shown under the general denial already in, is not available error, hut it is otherwise where the court overrules a demurrer to a had answer. Such error is fatal.</p>

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

<p>Will. — Construction of. — Joint-Tenancy.—Where it was provided in a will bequeathing all of the testator’s personal property to two of his granddaughters, that the property should be held in trust for said children until they became of lawful age, and that if they should die without any children of their own, the property should go to his three sons, naming them, the share of one of the devisees, who died intestate under the age of twenty-one years, unmarried and without a child or children of her own, passed to the three sons of the testator. There is nothing in the will to indicate that it was the intention of the testator that the survivor should take the whole estate on the death of one of the granddaughters, or that the interest of the deceased granddaughter should descend to her heirs. Under the statutes of Indiana, property held by two or more persons as joint tenants does not go to the survivor, unless it is so expressly stipulated in the instrument creating the estate.</p>

<p>Negligence. — Gontributory Negligence. — The negligence of the driver of a wagon can not be imputed to one who is riding in the wagon with him, hut the latter can not recover unless it affirmatively appears that he was free from contributory negligence.</p> <p>Railroad. — Accident at Grossing. — Gontributory Negligence. — Where a wife was riding in a wagon with her husband who was driving, and they approached a railroad crossing, known by the wife to be dangerous, when a train was coming up in full view, and the husband stopped the team, but immediately afterwards attempted to cross in front of the train and both were killed, the wife in failing to warn the husband or to look or • listen for approaching trains was guilty of contributory negligence, and there can be no recovery for her death.</p> <p>Same. — ■Photograph as Evidence.- — It was not error to permit a witness to testify that a photograph introduced in evidence was a correct representation of the crossing and surroundings where the accident occurred.</p> <p>Juror. — Relationship to Counsel. — Setting Aside Verdict. — A verdict will not be set aside because a juror was permitted to serve who was the husband of a niece of the wife of one of the defendant’s attorneys.</p>

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

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

<p>Decedents’ Estates. — Insufficiency of Personal Assets. — Payment of Indebtedness by Purchase of Part of Real Estate. — Right of Contribution. — A purchaser of land set off to one of the children of a decedent in a partition proceeding, who, in order to prevent the land so purchased by him from being sold to discharge outstanding claims against the estate, pays off such indebtedness, the executor not having any assets with which to do so, is entitled to contribution from one who has also purchased a portion of said estate, but who refuses to pay his proportion of said indebtedness.</p> <p>Same. — Expenses of Administration. — Real Estate of Decedent Liable for. — Under our statute, the land of a decedent is subject to be sold by an executor or administrator to make assets with which to pay the expenses of administration.</p> <p>Same. — Statute of Limitations. — Application to Sell Land to Pay Debts.— When Must be Filed. — The fifteen years’ statute of limitations applies to applications of an executor or administrator to sell lands for the purpose of making assets with which to discharge the liabilities of the estate represented by him. The statute does not begin to run, however, until the executor or administrator discovers the insufficiency of the personal estate, and that it is necessary to sell land to make assets to pay off such liabilities.</p> <p>Same. — Statute of Limitations. — Defence of. — Sow Pleaded. — Demurrer.—Complaint. — -In an action by an executor to sell land of a decedent for the purpose of discharging liabilities against his estate, a demurrer will not lie to the complaint on the ground that the action is barred, by the statute of limitations, unless the complaint affirmatively shows that such is the fact. The statute of limitations must be pleaded, and is not available on demurrer unless it affirmatively appears that the case is not within any of the exceptions to the statute.</p> <p>Pleading: — Sufficiency of Complaint. — Motion to Make More Specific. — In the absence of a motion to make more specific, a complaint sufficiently alleges a conveyance of land to the plaintiff which avers that the plaintiff “ purchased ” the same.</p> <p>Practice.— Uncertainty in Complaint. — Sow Reached. — Demurrer.—A demurrer will not lie to a complaint for uncertainty. The remedy is by motion to make the complaint more specific.</p> <p>Supreme Court.- — Absence of Objection Below. — Effect of on Appeal. — The Supreme Court will not reverse rulings of the circuit court to which no objection was made and no exception reserved, and rulings which the court below had no opportunity to correct.</p>

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

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

<p>Exemption. — Tort.—Under bur statute, no exemption can be had upon a judgment rendered in actions for tort.</p> <p>Same. — Misjoinder of Causes of Action. — Contract and Tort. — But where the plaintiff improperly unites his right of action for a tort with his right of action on a contract, and takes judgment in such form as to preclude the possibility of separating one from the other, he thereby reduces his superior rights in the action sounding in tort to a level with his inferior rights in the action on contract, and the defendant is entitled to treat the judgment as rendered upon contract, and to claim his exemption.</p>

<p>Office. — Township Trustee. — Defalcation.—Vacation of Office. — Appointment of Successor. — Where an officer becomes a defaulter, flees the State, leaves no one to care for the public affairs, and indicates a settled purpose to abandon the office, it may be deemed vacant without a judicial determination, and the vacancy may be filled by appointment. The sureties on the bond of the defaulting officer can not challenge the right of the appointee to prosecute an action for the recovery of the public money.</p> <p>Same. — The presumption is that the power of appointment is rightfully exercised by the officer invested with that power.</p> <p>Same.- — ■Collateral Attack. — Where there has been an appointment to, and the actual incumbency of an office, a collateral attack on the right of the appointee to hold the office is unavailing.</p> <p>Same. — Reports.—Evidence.—The reports of a township trustee, showing an indebtedness to the township, will, unless satisfactorily contradicted, warrant a finding against him and his sureties.</p>

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

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

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

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

<p>Husband and Wine. — Desertion by Husband. — Eight of Wife to drops Grown on Husband’s Land. — Where a husband deserts his wife and children, leaving them without support, the wife may cause the land left in her possession to be cultivated during his absence for the support of herself and children, and her rights in the crop are superior to the rights of a chattel mortgagee of the husband with notice of all the facts.</p>

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

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

<p>Ckimxnal Law.' — ■ Larceny.— Information. — Duplicity. —An information charging in one count the larceny of two distinct articles of personal property belonging to different persons, without alleging that the property of the two owners was stolen at the same time and by the same act, is bad for duplicity.</p>

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

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

<p>Contract. — Rescission.— Waiver. — One who, uninfluenced by the fraud, deals with the property as his own, after having fully discovered that fraud has been practiced upon him in the contract or transaction by or through which he acquired the property, thereby waives his right to rescind.</p> <p>Same. — Acts not Amounting to Waiver of Right to Rescind. — Equivocal acts, however, which do not clearly evince a purpose, with complete knowledge of the fraud, to retain the property as his own, will not defeat the right of the person defrauded to rescind. The act must be unequivocal, and must show an election to retain the property after discovering the deceit before the right to rescind is gone.</p> <p>Same. — Purchaser oj Partnership Interest. — Fraud.—Where the purchaser of an interest in a partnership seeks to rescind the contract because of the vendor’s misrepresentations, and has fully perfected his right to claim a rescission by tendering back everything that had been received, and by offering to place the fraudulent vendor in statu quo, the fact that such purchaser afterwards received money arising from the sale of some of the assets of the firm does not affect his right to compel the rescission, if the property was sold in the course of the firm’s business, and the money received was fully accounted for without loss to the vendor.</p> <p>Same. — Assignment of Firm Assets. — Repudiation of. — The purchaser of an interest in a partnership who offers to rescind because of the fraud practiced upon him by the partner, does not lose his right of rescission by afterwards joining the other partners in a deed of voluntary assignment of the firm assets, where after the deed was signed and acknowledged, but before it was delivered or recorded, be repudiates the assignment, and does not consent to the delivery of the deed.</p> <p>Tender. — Fraud.—Rescission of Contract. — In a suit for rescission on the ground of fraud, no tender of the property received is necessary; it is sufficient for the plaintiff to show that he has preserved the property substantially in the condition in which he received it without intentional or unnecessary change.</p> <p>Vendor and Vendee. — Bona Fide Purchaser.— Who is not. — The plaintiff, who had exchanged certain real estate for an interest in a partnership, offered to rescind, and perfected his right to do so by giving notice and taking all the necessary steps, because of the misrepresentations of the partner as to the firm assets. Afterwards a conveyance of the real estate was taken from the fraudulent partner by such partner’s father in consideration of an antecedent debt.</p> <p>Meld, that such grantee was not an innocent purchaser as against the plaintiff.</p> <p>Practice. — Special Finding. — Facts Found Unsupported by Fvidence. — Motion for New Trial. — Where facts found are not sustained by the evidence, the question is properly presented in the Supreme Court for review by a motion for a' new trial, and not by a motion to strike out such parts of the finding as are supposed to be unsupported by the evidence.</p>

<p>Cbtminai. Law. — Abortion.—Sufficiency of Indictment. — An indictment for criminal abortion charging that an instrument was feloniously introduced into the womb of a pregnant woman, with the intent to produce a miscarriage, such operation not being necessary to save the woman’s life, is sufficient without showing what kind of a wound it produced or what disease it caused.</p> <p>Same. — Indictment.—The indictment was not bad because it showed both miscarriage and death.</p> <p>.Same. — Duplicity.—Charging Accessory. — -The indictment was not bad for duplicity because it charged an accessory before the fact as principal.</p> <p>:Same. — Evidence.—Declarations in Last Illness. — Declarations and exclamations indicative of pain or suffering, made by the woman in her last illness, and not referring to the past, are competent evidence.</p> <p>Same.— Witness. — Impeachment.—Where the State is neither surprised nor prejudiced by the testimony of a witness called by it, it may not contradict such witness by evidence of contradictory statements made out of court.</p> <p>Same. — Evidence.—It was not competent for the State to show that the woman, upon whom the abortion was produced, was buried at the expense of the county.</p> <p>Same. — Instruction.—Reasonable Doubt. — In a case where the evidence of guilt is purely circumstantial an instruction that “ The defendant is to have the benefit of any doubt. If, however, all the facts established necessarily lead the mind to the conclusion that lie is guilty, though there is a bare possibility that he may be innocent, you should find him guilty,” is erroneous.</p> <p>Jubob. — Competency of. — Defective Eyesight. — A juror whose eyesight is so defective that he can not see the expression of the faces of the witnesses, nor observe their deportment or demeanor, is not competent, especially where various articles illustrative of the testimony are placed before the jury.</p> <p>Same. — The defendant was not negligent where his counsel fully examined the juror as to his qualification, and there was nothing in his answers to indicate that his eyesight was defective.</p>

<p>Master and Servant. — Railroad.—Damages.—Defective Machinery. — Mn,ployee’s Means of Knowledge.— What Complaint Musi Aver. — In an action for damages against a railroad company for the death of a brakeman alleged to have been caused by the unsafe and defective condition of a brake on one of the defendant company’s cars, it is not necessary to aver facts in the complaint, showing affirmatively that the employee had no means of ascertaining the defect. It is the duty of the master to provide suitable and proper appliances; the employee has the right to rely on the master having discharged his duty, and he is not required to search for defects, nor is he required to aver facts in his complaint, showing that he had no means of knowledge. It is sufficient to aver that he had no knowledge of such defect.</p> <p>Same. — Defendant’s Knowledge of Defective Machinery. — Averment of Complaint as to Sufficiency of.- — Demurrer.—Negligence.—-Where the complaint alleges that the brake was defective in certain particulars, and that the defendant company negligently used such brake in its business upon the day of the injury, and for many days prior thereto, a demurrer will not lie on the ground that the complaint does not allege that the defendant company had any knowledge of the defect-, by means of W'hich it is averred the deceased receiy.ed the fatal injury.</p> <p>Same. — Safe Appliances. — Duty of Employer to Furnish and Maintain. — Knowledge of Defects Chargeable to Employee. — The duty of the employer does not end with simply providing safe machinery and appliances for the use of his employees, but the further duty is imposed of continuously exercising reasonable diligence and care to ascertain and know the condition of such machinery and appliances, and to keep them in a safe and proper condition. The employee is charged with the knowledge of such defects as he could have ascertained by the exercise of reasonable care and diligence in this behalf.</p> <p>Instructions to Jury.- — Weight of Evidence. — An instruction is properly refused which tells the jury what weight they should give to the evidence. The jury are the judges of the weight of the evidence.</p> <p>Same. — Co-Employees.— Who are not. — It is not error to refuse to instruct the jury in an action for damages for the death of an employee of a railroad company alleged to have resulted from a defective brake, that the car-inspectors were the co employees of the brakemen. The company was charged with the duty of providing and maintaining safe appliances for use in the operation of its business. If this duty is intrusted to an agent, a car-inspector for instance, such agent stands in the attitude of the master, and is not a co-employee of the brakeman.</p> <p>Same —Defective Machinery. — Knowledge of. — Employee— It is proper to refuse to instruct the jury, in such an action, that it was the duty of the brakeman to know whether the brake was in good and safe condition, and if he continued to use or operate it without such knowledge and it proved to be unsafe, and because of its infirmity he was thrown from the car and lost his life, then his negligence contributed to the injury and no recovery could be had.</p> <p>Same. — Assuming Facts to be Established. — Ejfect.of.—An instruction is properly refused which assumes that the evidence establishes a fact, and then states what wa« the duty of a party in view of the fact so assumed to exist.</p> <p>Verdict.— Weight of Fkidence. — A verdict will not be disturbed for the reason that it is not supported by the evidence, if there is any evidence in the record supporting the verdict.</p>

<p>Beal Estate. — Action to Recover.— Within what Time Must be Brought. — Foreclosure Sale. — Statute of Limitations. — Legal Disabilities. — Married Woman. —Execution Debtor.— Who is Under Section SOS, R. S. 1881. — A mortgage was executed by a husband and wife on the lands of the husband to secure his debt. After the execution of the mortgage the land was conveyed to the wife. The mortgage was thereafter foreclosed, the husband and wife being made parties to the foreclosure proceedings. Tiie land was sold at sheriff’s sale, the mortgagor being the purchaser, and in due time he received a sheriff’s deed therefor. After the death of the wife, and more than ten years from the date of the foreclosure sale, an action was instituted by the husband and children to recover said real estate, on the ground that the decree for the sale of the land was void for certain reasons set forth in the complaint.</p> <p>■Held, that the husband was an execution debtor within the contemplation of section 293, B. S. 1881, and that any action for the recovery of the real estate in which he joined must be brought within ten years after the foreclosure sale.</p> <p>Held, also, that the wife was an execution debtor under the provisions of the statute, and that all persons claiming title under her, acquired since the rendition of the judgment, must bring suit within ten years after the foreclosure sale.</p> <p>Held, also, that the sale of the land under the decree was sufficient to give color of title and bring the case within the operation of the statute of limitations.</p> <p>Held, also, that the wife was not within the exception in favor of persons under legal disabilities, contained in the present statute.</p> <p>Pleading. — Complaint.—Joint Cause of Action. — Demurrer.—A complaint not showing a cause of action in favor of all the plaintiffs is bad on demurrer.</p>

<p>Practice— Pleading. — Leave to Amend. — Discretion of Couirt as to. — Rule on Appeal. — The granting of leave to amend pleadings, after the issues are closed, and especially pending the trial, is a matter resting largely in the discretion of the trial court. It is only in cases where there seems to have been an abuse of that discretion, apparently resulting in injustice, that the Supreme Court will interfere. Where the record shows that the party requesting leave to amend could not possibly have been injured by the refusal of the court to permit it, the question whether or not the court abused its discretion will not be inquired into.</p> <p>Same. — Errors.-— When Parly ean Complain. — A party can only complain of the court’s errors when he is injured by them.</p> <p>Same. — Errors Assigned.— When Waived. — A party to be entitled to have alleged errors considered must do more than merely call attention to them, and assert that they are errors. Unless there is at least an attempt at argument, or something to indicate wherein they are claimed to be erroneous, aside from the mere assertion, they will he considered as waived.</p> <p>Eminent Domain. — Condemnation Proceedings.- — Measure of Damages. — Assessment of Damages. — The rule in condemnation proceedings is that all damages present or prospective, that are the natural or reasonable incident of the improvement to be made, or work to he constructed, not including such as may arise from negligence or unskilfulness, or from the wrongful act of those engaged in the work, must be assessed. Damages are assessed once for all, and the measure should be the entire loss sustained by the owner, including in one assessment all injuries resulting from the appropriation.</p> <p>Same. — Damages.— What May be Considered in Estimating. — Railroad.—In an action for the appropriation of lands by a railroad company, it was proper to instruct the jury that they might consider the manner in which the land would be divided by the line of the railroad as affecting the size and shape of the fields, the access of stock to water, the passage from one part of the farm to another, the possible danger from fire emitted from the locomotives, etc.</p>

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

<p>Mandamus. — Ministerial Officer. — Specific Fund. — Distribution of. — A minis- ’ terial officer, who has a specific fund in his hands, may be compelled by mandamus to make lawful distribution of the fund. This remedy is proper, for the reason that the officer is liable, if liable at all, for the violation of a duty imposed upon him by law.</p> <p>Same. — Drainage.—Ditch Commissioner. — Cost of Improvement. — Must Pay Out of Specific Fund. — Demand before Suit. — Parties to the Action. — Where a ditch commissioner has collected the assessments levied for the construction of a ditch, it is his duty, upon proper demand, to pay the amount due for the construction of the ditch out of the specific fund. In a mandamus proceeding to compel him to do so, he can not successfully urge as a reason for withholding the fund that the land-owners who paid the assessments which created the fund are not parties to the action.</p> <p>Same. — Petition for. — Necessity of Demand. — Public Officer. — Presumption as to. —In such an action a demand is essential. The presumption is that an officer will do his duty upon request, and to put him in the wrong a’demand is necessary. Where the duty is owing to a private, person, and not to the public, a demand must be alleged with precision in the petition for a writ of mandamus.</p>

<p>Heal Estate. — Sale on Execution. — Action to Recover.— Within what Time Must be Brought. — Section 293, R. S. 1881, Applies to Void Sales. — Where land was sold under a decree of foreclosure by a sheriff without the county in which he holds office, and in due time a sheriff’s deed was executed to the purchaser, and under that purchase he entered into possession of the land, and held it for more than ten years under his sheriff’s deed, before a suit was instituted to recover the land, the action for recovery is barred by the statute of limitations. Section 293, clause 3, R. S. 1881, providing that an action can only be brought by the execution debtor to recover real property sold on execution within ten years from the day of sale, applies to sales where there was an entire want of jurisdiction in the court to order the sale of the property.</p>

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

<p>Gravel Boad. — Construction of. — Issuance of Bonds for. — Action for Accounting Against County. — Bondholders May Maintain. — Extent of Equity Belief.— Proceedings were instituted to construct a free gravel road. Assessments were made on the contiguous lands, and coupon bonds were sold to the plaintiffs, who paid the full face value thereof, to raise money for the construction of the road. The money arising from the sale of the bonds was paid into the general fund of the county. Separate suits were afterwards instituted by certain land-owners to enjoin the county officers from placing the several amounts assessed against their' respective tracts of land on the tax duplicate, and to declare their assessments void. The proceedings to restrain the officers were sustained in the court below, and several judgments were rendered according to the prayer of the complaint. An appeal was taken in one of the oases, and the judgment was reversed. The bondholders were not parties to these proceedings, and had no notice of their institution.</p> <p>Held, that the bondholders could maintain an action in equity against the county and its officers for an accounting of the money which had been received from such assessments, and which it was alleged had gone into the general fund of the county, and have the same applied to the liquidation of the bonds, together with the interest due thereon.</p> <p>Held, also, that the bondholders could compel the officers who were charged with the duty of collecting the assessments to place on the tax duplicate the assessments which had been set aside.</p> <p>Held,, also, that where a court of chancery takes jurisdiction of a cause for any purpose, it retains it under its control for all purposes, and administers complete relief, as the justice of the case may require.</p>

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

<p>Insurance —Loss by Fire. — Policy Construed. — ProPata Liability. — Theplaintiff held a policy in the defendant company for $1,500. The policy was on twenty-one items of property which were classified in the policy, and opposite each item a valuation was affixed, making, in the aggregate, $90,000. The policy provided that the company only insured onesixtietli part of each of said sums, and that its liability was limited to such a proportion of the loss as the amount insured thereby bore to the entire amount of insurance. At the time of the fire the aggregate insurance on the property was $60,000, and the loss $51,000.</p> <p>Held, that under the terms of the policy the defendant company was liable for one-fortieth, and not sixtieth, of the loss.</p>

<p>New Trial. — As of Right. — Motion for.— When May be Made. — Motion in Arrest of Judgment. — A motion lor a new trial as a matter of right may be made after a motion in arrest of judgment has been filed. The rule that a motion for a new trial comes too late after a motion in arrest of judgment, only applies to motions for a new trial for cause, where the party has knowledge of the fact on which he grounds his motion for a new trial at the time of moving in arrest of judgment.</p> <p>Same. — Section 1064, R. S. 1881, Construed. — -The provisions of section 1064, K. S. 1881, relative to new trials as a matter of right, are mandatory, and the court has no discretion, but must grant a new trial upon compliance with the requirements of the section, at any time within one year after the rendition of the judgment.</p> <p>Same. — Complaint.— When Authorizes New Trial as Matter of Right. — Joinder of Partition Count. — Effect of. — -Under a complaint by heirs of a grantor, the first paragraph of which seeks to have a deed set aside because of alleged fraud and undue influence exercised by the grantee over the grantor, and the second and third paragraphs of which are to quiet title to the same land, and for partition thereof respectively, a new trial may be claimed as of right by either party. The joinder of the count for partition does not deprive them of that right.</p> <p>Instructions to Jury. — Judged as Entireties. — Obvious Mistake. — Instruction not Vitiated. — Instructions are not to be judged by detached clauses or sentences, but as entireties. Where a mistake in an instruction is so obvious that a jury could not have been misled thereby, there is no available error.</p>

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

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

<p>Bailboads. — Consolidation of Companies. — Title to Meal Estate.- — Where land is conveyed in fee simple to a railroad company, and afterwards the company is consolidated with another, and further consolidations take place from time to time, the new companies formed by the successive consolidations succeed to said real estate.</p> <p>Estoppel. — Adverse Possession. — Tire heirs of the grantor to the railroad company, and their grantees, are estopped by his deed from setting up an adverse title derived from possession alone, as against his grantee and those claiming under it.</p> <p>Abatement. — Plea in. — Former Action.- — Non-Payment of Costs in. — -Practice. — It is a matter in the sound discretion of the court, as to whether or not, it will stay proceedings upon the filing of a plea in abatement alleging that the plaintiffs had formerly commenced an action upon the identical supposed cause of action set up in the complaint in the second action, and had dismissed the same, and that the defendants had recovered a judgment in said original action for costs which had not heen paid.</p>

<p>Injunction. — Application to Dissolve Pending Appeal. — A motion to dissolve an injunction, made unsuccessfully in the lower court while an appeal from the order granting it is pending in the Supreme Court, is not sufficient to authorize the dismissal of the appeal when it is not made to appear, that the appellant has taken a position in the lower court inconsistent with the one he occupies in the Supreme Court, or that the position of the parties to the appeal has been in any manner changed or altered.</p> <p>Same. — Interlocutory Judgment.— What is not. — In an action to restrain the enforcement of a city ordinance, a submission of the case upon the complaint, a finding that the injunction should be granted and the granting of the injunction as prayed, and an order that it be continued “ until the validity of the ordinance in question shall have been finally determined ” in the Supreme Court, is not an interlocutory, but a final judgment.</p> <p>Municipal Corporations. —Injunction.— Validity of an Ordinance.— A court of equity may enjoin the enforcement of a void city ordinance in order to prevent a multiplicity of actions, or at the instance of any person whose interests are to be injuriously affected thereby ; but if it is not void, a court of equity can not determine whether or not the plaintiff is guilty of its violation.</p> <p>Same.— When Entire Ordinance Musi be Void. — Unless the party asking an injunction points out some particular provision in the ordinance that infringes upon his rights or privileges, in order to justify a court in declaring the ordinance void, the ordinance must be void in loto.</p> <p>Same. — Saloon Closing Ordinance.— Validity. — An ordinance requiring all keepers of saloons, and of other like place, to eject every person not regularly employed therein at the hour of 11 p. m., to close and lock the doors securely, and permit no ingress thereto between that hour and 5 A. m.; requiring all persons not employed to depart between such hours) when requested ; making it unlawful to open the door, or leave it unlocked, or to permit ingress thereto between such hours, and extending the same rules and regulations to Sundays, legal holidays and election days, is valid.</p>

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

<p>Negligence. — Traveller on Highway.— Voluntary Intoxication. — If a traveller on a highway, by reason of his own voluntary intoxication, exposes himself to danger and receives injuries which he could, and by the exercise of ordinary prudence would have avoided if sober, he is guilty of contributory negligence, and can not recover for such injuries.</p> <p>Instructions to Jury. — Erroneous Instructions.— When Judgment not Reversed Therefor. — Where the record affirmatively shows that the verdict is right upon the evidence, the judgment will not be reversed because the court has erred in the instructions given to the jury.</p>

<p>Subrogaoson.— Volunteer. — Note Given by Third Person in Payment of Judgment. — Subrogated to Lien of Judgment. — Judgment Over. — The owner o£ land gave amortgage upon it, which was foreclosed, and the land bought in at sheriff’s sale by the mortgagee for one-half the amount of the debt. The plaintiff, after the sale, filed a transcript of the judgment in an adjoining county. One 0., by agreement all around, then executed his note, for four-fifths of the debt to the mortgagee, and the mortgagor agreed with O. to pay the remainder due on the foreclosure, and he had so paid him. By agreement C. took an assignment of the sheriff’s certificate as a security for the liability he incurred in giving the note to the mortgagee. O. was compelled to pay the note he had given.</p> <p>Held, that C. was entitled to be subrogated to .the lien of the j udgment upon the land in the county where it was rendered, and was also entitled to a judgment for the sum in excess of the value of the land. .</p>

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

<p>Drainage. — No Notice. — Collateral Attach. — An order made establishing a ditch without notice to those interested is void; but if only part have i / •> *. been notified, it is void as to all those who have not received notice. Those who have not received notice may attack the proceeding collaterally.</p> <p>Same. — Collateral Attach for Want of Notice. — Pleading.—The person who collaterally attacks an order establishing a ditch and the assessments incident thereto, because of lack of notice, must aver in his complaint, fully and specifically, that no notice was given.</p> <p>Same. — Notice.—Presumption as to Giving, and as to the Order Establishing the Dram. — In a collateral attack upon an order establishing a ditch, and making an assessment, it will be presumed that the court establishing the ditch found, as a jurisdictional fact, that a notice was duly given before it entered the order.</p> <p>Same. — Priority of Tax; and Ditch Lien. — The lien of the State for taxes is paramount and superior to the lien of a ditch assessment.</p> <p>Same. — Redemption from Tax Sale by Holder of Ditch Lien. — -The holder of a ditch lien has a right to redeem from a sale of the land for taxes.</p> <p>Same. — Foreclosure of Tax Lien. — Parlies to Ditch Proceeding. — Party Acquiring Ditch Lien. — The holder of a tax lien seeking to foreclose it after a ditch is established, andbefore its construction islet, should make parties to his petition all who were parties to, and affected by, the ditch proceedings; and any person acquiring the ditch lien, or any part of it, by reason of his having constructed the ditch, after the commencement of the proceeding to foreclose the tax lien, will not be bound thereby, unless the parties to the ditch proceedings are made parties to the tax lien foreclosure proceedings.</p>

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

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

<p>Chattel Mortgage. — Recording.—As between the mortgagor and the mortgagee or the latter’s assignee, it is not necessary to record a chattel mortgage. As between them it is valid without recording.</p> <p>Same. — Receiver.—If a petition to foreclose a chattel mortgage shows that the mortgagor is insolvent, that the mortgaged property is not sufficient in value to secure the debt, and that there is danger of its removal 'beyond the jurisdiction of the court, it is sufficient to authorize the appointment of a receiver of such property.</p>

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

<p>Abatement. — Plea of. — Purchase Price of Beal Estate. — Action to Becover.— Insufficiency of Plea. — In an action to recover the agreed purchase price of a tract of land conveyed by the plaintiff to the defendant, a plea in abatement is bad, which alleges that at the time the plaintiff conveyed the real estate to the defendant she had no legal title to the same, but that the legal title was in another, and that an action was pending against the defendant upon his warranty, he having conveyed the land, but which does not show that either the defendant or his grantees have been disturbed or interrupted in their possession.</p>

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

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

<p>X/TEtr. — Labor Performed in Working Mine. — Expenses Incurred by Assignee.— Preference. — The costs and expenses, including wages of a laborer that lie employed, incurred by the assignee of a mining property, are made by statute a preferred claim and lien upon the property assigned, prior to all other claims, even to those for labor incurred prior to the assignment of the property. Elliott’s Supp., section 1598.</p> <p>Same.- — Assignment of Property. — Foreclosure of Claim. — Innocent Purchaser.— Laborer's Claim. — A mining company made an assignment of all its property to F., authorizing him in the deed of assignment to operate and develop the mine, pledging him the property as security for any money he advanced of his own in developing the mine, and directing him to pay certain debts. Prior to the assignment a mortgage was given D. on the property assigned, and recorded. C. held a duly recorded mechanic’s lien, and S. a valid claim for mining labor rendered the assignee. F. took possession of the property, advanced $5,000, and a year afterwards foreclosed his lien except as against D., C. and S., and at the sale under the decree the Coal Bluff Mining Company purchased it. The plaintiff worked for F. in the mine, but the purchaser had no knowledge of his claim for wages.</p> <p>Held, that the plaintiff was entitled to foreclose his lien for wages against the property in the hands of the purchaser, standing on the same basis with the claims of F.; and the fact of F. abandoning the trust and foreclosing his claims did not affect the plaintiff’s lien or rights.</p>

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

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

<p>Common Cabbies. — Falsely Charging Passenger Concerning Payment of His Fare. — Misconduct of Passenger in Heat of Passion. — Hjecting.—A railroad company can not justify the act of its conductor in expelling a passenger, who has paid his fare, on account of his having, in the heat of passion, when he was falsely charged with the failure to pay, used improper language, such as swearing in the presence of female and other passengers in a loud tone of voice.</p> <p>Same. — Ejecting Passenger. — Damages Occasioned by Passenger Besisting. — A passenger lawfully in a car, who is illegally and wrongfully ejected, may recover for the damages occasioned to his person by his making a reasonable resistance to prevent his removal.</p> <p>Damages.— When Hxemplary May be Given. — Exemplary damages may he given when malice and oppression weigh in the controversy, and the act is not punishable as a crime.</p>

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

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

<p>Decedents’ Estates. — Sale of Land by Administrator. — Mortgagee not Parly to Proceeding. — Lien not Divested. — To divest the lien of a mortgage by an administrator’s sale oí land, the mortgagee must be made a party to the proceeding, and the court must order the sale of the land to discharge the lien. "Where the mortgagee was not a party to the proceeding to sell, and the court did not order a sale to pay his mortgage, the lien of the mortgage was not divested, and the purchaser took the land subject to such lien, notwithstanding the administrator’s assurance to the contrary.</p> <p>Same. — Final Settlement.— When May be Set Aside —Summons.—Under section 2403, E. S. 1881, any person interested in an estate which has been finally settled, if he was not personally served with summons, and did not appear at the hearing of such final settlement, may have the same set aside if it affects him adversely, for any of the causes therein specified.</p> <p>Same. — Final Settlement. — Action by Creditor to Set Aside. — Estoppel.—When a creditor of a decedent seeks to set aside the final settlement of the administrator, on the ground that the administrator misappropriated the funds arising from the sale of certain real estate, he is not estopped from so doing because formerly he had brought a suit, in which he was defeated, to set aside the sale of the land, alleging as a reason therefor that the land sold too cheap. Neither is he estopped because he failed to object to certain acts and declarations of the administrator, it not appearing that he knew his rights, or that his failure to object in any degree influenced the conduct of the administrator, or that the administrator did not know all the facts as fully as he did.</p>

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

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

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

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

<p>Basement. — Implied Dedication. — The implied dedication by the owner of land platted for a town site of a strip of land fronting a river, to the public as a common, for the purpose of a landing, and for access to the river, does not vest in the town, or in the public, the fee of the land, but the fee remains in the grantor, subject to the easement.</p> <p>Same. — Alluvial Accretions. — Such easement attaches to alluvial additions caused by changes in the course of the river, and the public has the right to pass over such additions for the purpose intended by the dedication.</p> <p>Same. — Abandonment of Landing. — Non- User of Easement. — A non-user of the easement, for the purpose intended, for a period of thirty years, due to an abandonment of commerce upon the stream, will be taken as an abandonment of the easement.</p> <p>Special Finding. — Judgment.—Intendment.—To warrant a judgment in favor of a party, on a special finding, the finding must contain all the facts necessary to the judgment, and nothing is to be taken by intendment.</p>

<p>Practice. —Demurrer.— Answer. —Insufficient Paragraph.— Overruling Demurrer to. — Effect of. — It is error to overrule a demurrer addressed to an insufficient paragraph oí answer, although there are other and more comprehensive paragraphs of answer.</p> <p>.Covenant. — Running with Land.— What is. — A covenant in a deed of certain premises, “ together with the mill and all privileges and easements thereto belonging,” is a covenant running with the land that the grantors had a right to maintain the dam at the height it was when the deed was made.</p> <p>Same. — Action for Broken Covenant. — Subsequent Qraniee.— When can not Maintain. — In a suit by a subsequent grantee against the grantors in the above deed based upon the breaking of said covenant, the grantors may successfully defend by showing that they sold the land with the agreement that the grantees, among other things, were to repair or rebuild the old dam, and that it should not he raised beyond its original height; that for the purpose of deceiving their grantors the grantees destroyed the marks indicating the height of the dam, and falsely represented that the height was not increased, and that therefore the grantors executed the deed in ignorance of the fact that the height of the dam had been increased.</p>

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

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

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

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

<p>Parties. — Action by Ward After Attaining Majority. — Contract for His Benefit. —Necessary Parties. — A. was indebted to plaintiff upon certain notes payable to his guardian, representing the balance of purchase-money for a stock of goods belonging to the ward and purchased by A. Thereafter A. sold said stoekof goods to the defendants, who each agreed to pay said notes, and jointly also promised to do so, and relieve A. from all legal responsibility in the payment of the same. The ward, when he attained his majority, settled with his guardian,and in the settlement said notes were transferred to him. He brought suit against the defendants on the contract entered into between them and A. in reference to the payment of said notes.</p> <p>Held, that the defendants could be sued jointly.</p> <p>Held, also, that A. was not a necessary party to said action, the complaint not seeking to affect or change in any way his rights as fixed by the contract entered into between him and the defendants.</p> <p>Same. — Pleading.—Answer.—Rescission of Contract Before Acceptance.— Written Agreement. — Parol Agreement in Contravention of. — A paragraph of answer in such an action pleading a rescission of the contract before any acceptance of it by the plaintiff or his guardian for him, states a good defence, but a paragraph of answer pleading a parol agreement in contravention of the written agreement is bad.</p> <p>Same. — Answer.—Contract—Plea of Mutual Mistake. — Fraud.—Reformation of Contract. — Misrepresentations of Law. — A paragraph of answer in such an action which alleges a mutual mistake iu the contract, and seeks to have it reformed, is good, as is also a paragraph which alleges that the defendant was induced by fraud to accept the bill of sale containing said contract, setting up the facts as to what the true contract was, and the fraudulent representations and deceit by which he was induced to accept it, and asking for its reformation. A paragraph is bad which alleges misrepresentations as to the law,.and the necessity for a written contract, and as to the legal effect of the contract in question.</p>

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

<p>Mai/pbacticb. — Pleading.— Waiver of Tort. — In an action against a physician for malpractice, the plaintiff may elect to sue on contract, and thus waive the tort.</p> <p>Same. — Pleading.—Actions Ex Contractu or Ex Delicto. — A complaint in an action against a physician for malpractice alleged that the plaintiff employed the physician to give professional attention to his wife, in childbirth, for which compensation was to be paid, and that the physician contracted with the plaintiff to render the required services; that, as a breach of said contract, the physician failed to give the plaintiff’s wife proper attention, causing her great injury.</p> <p>Held, that the complaint was in contract, and not in tort.</p> <p>Witness. — Privileged Communication. — Where a plaintiff, in an action for malpractice, testifies to an occurrence of the sick room, the physician, or one in attendance as a consulting physician, may testify as to what occurred, as the plaintiff by testifying removes the obligation of secrecy on the physician’s part.</p>

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

<p>Res Adjudicata. — Quieting Title. — Might of Alienation. — Estoppel.—Section 18,1 G-. & H., provides that if a widow remarries, holding'real estate in virtue of a previous marriage, such widow may not during such marriage, with or without her husband’s assent, alienate such real estate, and if during such marriage she shall die the real estate shall go to her children by the previous marriage. While this statute was in force, during a second marriage, a widow and her children conveyed real estate held by descent from the widow’s former husband. In a suit instituted by the grantee, in which the widow and her children were made parties, the title was quieted.</p> <p>Held, that the children were estopped by the decree to dispute, upon the widow’s death, the validity of the alienation, having failed to do so in the suit to quiet title.</p> <p>Pabtition. — Pleading.— General Penial. — Relinquishment of Widow’s Interest. —Evidence.—In an action for partition the heirs claimed one-third of the land, and the defendant the entire tract.</p> <p>Held, that the title was put in issue, and that under sections 1055 and 1070, R. S. 1881, evidence was admissible under the general denial tending to prove a parol partition of the land between the widow and children, by which the widow’s interest in the land in dispute was divested, she taking instead other lands equal in value to one-third of the land owned by her former husband, since such a partition would be a complete defence to the action.</p>

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

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

<p>Decedents’ Estates. — Corporate Stock. — Personal Property. — Shares of stock in a corporation, owned by the decedent at the time of his death, are personal property.</p> <p>Same. — Sale.—Such stock descends to the heirs at law, subject to the right of the administrator to subject the same to sale in the manner prescribed by the laws of the State.</p> <p>Same. — Public and Private Sales. — The common law right of the administrator- to sell and dispose of personal property does not exist in this State. Sales of such property must be made in the manner prescribed by our statutes upon the subject. In the absence of an order from the proper court, the sale must be public, and where the sale is private, under the order of the court, it must be made in substantial compliance with the order.</p> <p>Same. — Sales Under Order of Court.— When Title Passes. — In cases of private sales, where the order of the court does not require a confirmation, if the sale is made in substantial compliance with the order of the court, the title passes to the purchaser upon his compliance with the terms of the sale.</p> <p>Same.— Validity. — Where an order to sell stock at private sale required the administratrix to make the sale on good security, and the sale was made upon the individual note of the purchaser without any security and on a credit of ten years, the statute authorizing a credit of only twelve months, the sale was void and vested no title.</p> <p>Same.' — Corporate Stock. — Transfer of on Books of Corporation.- — Inability for Illegal Transfer. — In such case, if the corporation, with notice that the stock belonged to the estate of the decedent, and with notice of the order of sale, cancels the certificates of stock, and issues a new certificate to the purchaser, without inquiring into the validity of the sale, it is liable to the estate for any loss occasioned thereby. It is hound to know that the sale has been made in compliance with the terms of the order.</p> <p>Same. — Liability of Corporation to Estate. — A purchaser of such new certificate, in good faith, and without notice of any illegality in the surrender and cancellation of the original stock, is not liable to the estate, its remedy being against the corporation.'</p> <p>Pleading. — Exhibits.—Admissibility in Evidence. — Where a certain sworn statement is set out in the complaint, the plaintiff can not object to its introduction in evidence by the defendant.</p>

<p>Kaieboad. — Fencing Track. — Duty as to.— Violation of Duly. — Injury to Passenger. — A railroad company must take measures to so fence its track as to prevent animals from running upon it. If the duty to fence is negligently violated, and the violation of duty is the proximate cause of injury to a passenger, his right of action is clear and complete.</p> <p>Same. — Accident to Passenger. — Presumption of Negligence. — Burden of Removing. — The burden of proof is upon a railroad company to remove the presumption of negligence which arises from the happening of an accident which causes injury to a passenger.</p> <p>Evidence. — •Conflicting.— Verdict not Disturbed. — Where there is a conflict of evidence upon a disputed question of fact, the decision of the trial court will not be disturbed.</p> <p>Witness. — Non-Fkpert.—Speed of T-ain. — A non expert witness may give an opinion as to the speed at which a train was moving.</p> <p>New -Tbial. — Surprise.—Where a party proceeds with a trial, fully cross-examines the witness whose testimony creates the alleged surprise, and takes the chance of a verdict, he can not have a new trial on the ground that he was surprised by the testimony, without showing a very strong and clear case.</p> <p>Same. — Misconduct of Jury.— When Communication to Court is not. — After a jury had been deliberating for some hours they sent by the bailiff to the court a communication as follows : “ The jury stand eleven to one. We 1 have stood that way all night. No hope of a verdict.” The communication was shown to the plaintiff’s attorneys. The misconduct of the jury, if misconduct at all, was not such as to entitle the defendant to a new trial. The misconduct of a jury must be gross, and clearly result in an injury to the complaining party, to justify the awarding of a new trial.</p>

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

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

<p>Judgment. — Justice of the Peace. — Irregularities.—Relief.—Injunction.—Appeal. — Injunction will not lie to restrain the collection of a judgment rendered by a justice of the peace because of irregularities occurring at the trial. The remedy is by appeal.</p>

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

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

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

<p>Attorney and Client. — Profit Made by Attorney. — Must Account to Giient. —Where an attorney was employed to enforce and collect a judgment and decree against specific lands, and proceeded so far in his employment as to procure a sale of the land, and had his client, under his advice, purchase it for the benefit of the estate represented by him, and thereafter, while he was yet such attorney, he purchased an outstanding title, under an express agreement that he would hold it in trust for the estate represented by his client, and subsequently sold the land at a great advance, lie must be held as a trustee for his client. He must account for all the profits made in the transaction after deducting the amount he was to pay for the title and his reasonable attorney’s fees.</p>

<p>Taxes. — Gounty Auditor. — Assessment of Omitted Property. — The auditor has no power to increase the valuation of property properly listed for taxation, over the valuation placed on it by the township assessor or by the board of equalization; he can only assess property which has been omitted from the assessment lists and has not been assessed.</p> <p>Same. — Omitted'Property.—Identification.—To justify such assessment by the auditor there must be specific omitted property which is susceptible of identification.</p> <p>Same. — Insufficient Description. — A description of the property omitted as consisting of “ money on hand or on deposit, money loaned, and credits due the estate,” is an insufficient identification and description upon which to base an assessment of omitted property, especially where it is admitted that the part of the property listed and assessed, and that not listed and assessed, all belonged to the same classes.</p> <p>Same. — Valuation of Listed Properly. — Fraud.—While the person listing property is required to place a valuation upon it, such valuation will be regarded only as a mere statement of opinion, and fraud can not be predicated on such statement.</p> <p>Same.— Void Assessment. — Deeree.—Construction of. — Where an assessment made by the county auditor is adjudged void, and a decree is ren- ■ dered cancelling the tax and enjoining its collection, and directing the auditor to strike out and obliterate from the tax duplicate the tax assessed, the words “strikeout” and “obliterate,” will be construed as requiring the auditor to make such a memorandum on the tax duplicate as will show a cancellation.</p>

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

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

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

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

<p>Divorce. — Alimony.—Evidence.—Pension.—For the purpose' of determining the amount of alimony to be given, the wife may testify as to the amount of pension money the husband is receiving.</p> <p>Same. — Alimony.— When Not Excessive. — An allowance of $1,100 as alimony is not excessive where the custody of two small children is given to the wife, the three remaining children of the family being able to care for themselves, and the husband is the owner of real estate worth two thousand dollars, in the purchase of which three hundred dollars of the wife’s money was used.</p> <p>Same. — Custody of Children. — Discretion of Trial Court. — Supreme Court.— The Supreme Court will not disturb an order of the trial court awarding the custodj’' of the children, unless it appears that the court has abused its discretion.</p>

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

<p>Verdict. — Special.—Conclusions of Law.— When Verdict not Vitiated. — A special verdict is not vitiated by reason of stating conclusions of law, if, after eliminating all such conclusions, the necessary facts are fully set forth.</p> <p>Railroad. — Personal Injuries. — Negligence.—Crossing.—Failure io Give Signal. — A railroad company will not he exonerated from liability in an action for personal injuries alleged to have been sustained by a traveller on the highway when its servants in charge of a train failed to give the proper signals for a crossing which the train was approaching, but did give a signal for a second crossing before reaching the first crossing, which signal was given at a point much nearer to the latter crossing-than the signal required for that crossing, and the traveller who was upon the highway stopped and looked and listened and approached slowly, and continued to look and listen, seeing or hearing nothing, until his horses were in such close proximity to the train that they became frightened at the train, or at the sounding of the whistle for the second crossing, and he was injured in consequence thereof. As between the railroad company and the approaching traveller it induced him to approach to within an unsafe proximity to the crossing by the failure to give the lawful signals, and the train was not lawfully there as against the traveller without having first given the signal required by law before coming upon the crossing.</p> <p>Same. — Special Verdict.— When not Defective. — A special verdict in such a case is not defective whioh fails to find that the horses were docile, and that the traveller could have heard the signals if sounded, and would have stopped and could have controlled his horses at that distance.</p> <p>Instruction to Jury. — Action for Personal Injuries.- — Instruction as to Peril of Life. — Propriety of. — An instruction in an action for damages for personal injuries alleged to have been sustained by the plaintiff, is not erroneous which states, among other things, that the jury should “ take into account the peril, if any there was, to plaintiff’s life,” and which concludes with the statement that only such damages shall he assessed “ as will reasonably and justly compensate the plaintiff for his injuries.” It was proper for the jury to consider the hazard and jeopardy in which the plaintiff was placed; in other words, the peril, to his life, and allow such damages as resulted therefrom in determining the damages which he sustained, and his suffering in body and mind by reason of the injury.</p> <p>Practice. — Action for Personal Injuries. —Medical Fkaminalion of Party.— Motion for.— When Properly Overruled. — It was not error in an action for personal injuries for the court upon the second trial of the cause to refuse to require the plaintiff to submit to an examination by medical experts, the motion to that effect not having been made by the defendant until after the plaintiff had put in his evidence and rested his case, and the motion not being supported by any affidavit showing any necessity for it, or any belief as to what such examination would develop.</p>

<p>Constitutional Law. — Police Power. — Needful Regulations. — Legislature.— “Where a subject is within the police power of the State, the question as to what regulations are proper and needful is one for legislative consideration and decision.</p> <p>Same. — Legislature.— Usurpation of Power. — Presumption.—Courts will not presume that the Legislature has usurped power or disregarded the organic law. A party who asserts that the Legislature has usurped power or has violated the Constitution must affirmatively and clearly establish his position.</p> <p>Natubal Gas.— Qualities of. — Judicial Knowledge. — The courts will take judicial notice of the qualities of natural gas, and that it is in a high degree inflammable and explosive.</p> <p>Same — Police Regulation.- — Natural gas is so dangerous that its use may be made the subject of a police regulation.</p> <p>Same. — Transportation Through Pipes. — Pressure.-—Act of March 4th, 1891, Regulating.— Validity of. — The act of March 4th, 1891 (Acts 1891, p. 89), regulating the mode of procuring, transporting and using natural gas, which prohibits the use of more than the natural pressure or an artificial pressure exceeding three hundred pounds to the square inch, is a valid exercise of the police power, and is constitutional.</p> <p>Same. — Regulation of Use of Property.— Vested Rights. — Said act is but a regulation of the use of property, and is not a taking of property without compensation, nor is it an interference with vested rights or in violation of the provision of the Federal Constitution that no person shall be deprived of property by any State without due process of law.</p> <p>Same. — Can not be Made Subject of General Commerce. — Natural gas can not be made the subject of general commerce between the States because of its local nature and <intrinsic qualities, and it can not, so far as local safety is concerned, be made the subject of uniform Federal legislation, but is a legitimate subject for reasonable police regulation.</p> <p>Same. — Interstate Commerce. — Act of March jlh, 1891, not a Regulation of.— Case LHstingitished. — Natural gas, because of its local characteristics and peculiarities, and its inherent dangerous qualities, is a proper subject for State legislation, and the act regulating the pressure to he employed in its transportation through pipes, while it affects a commercial commodity, is but an exercise of the police power — a regulation of the mode of using property — and is not a regulation of interstate commerce in the constitutional sense oí the term. State, exrel., v. Indiana, etc., Co., 120 Ind. 575, distinguished.</p> <p>Olds, J., dissents.</p>

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

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

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