Volume 13 — Indiana Appellate Court Reports

<p>Prom Lawrence Circuit Court.</p>

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

<p>From tbe La Grange Circuit Court.</p>

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

<p>Marriage Contract. — Breach of. — Evidence. — Declarations of Affianced. — When Not Admissible. — Declarations of the affianced, which were not made, and did not purport to have been uttered, in connection with, or during the performance of any act of which they can be said to form a part of the res gestee, but were bare statements to her parents and relatives, in the absence of defendant, are not admissible in evidence in an action by her for breach of marriage contract.</p>

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

<p>Arbitration. —Aivard.—Notice.—When an agreement for submission to arbitration does not provide that notice of the award shall be given to the parties no notice is required.</p> <p>Same. — Agreement to Submit. — Rule of Court of Record. — An agreement to submit differences to arbitration must provide that the submission thereof shall be made a rule of some court of record, which shall be designated inr the agreement.</p> <p>Same.— Arbitrators.— Limitation of Poiver to Act.— Arbitrators have power to act until an award has been made upon the matters submitted to them.</p> <p>Same. — Aivard, What Does Not Amount To. — Subsequent Proceedings and Award. — Where an agreement to submit to arbitration limited the arbitrators to the consideration of R.’s interest in a land contract, a finding of the value of the property did not amount to an award of the matters submitted, and the arbitrators may after-wards pass upon R.’s interest therein exclusive of incumbrances.</p>

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

<p>Practice. — Overruling Demurrer to Insufficient Paragraph of Complaint. — Harmless Error. — The overruling of a demurrer to an insufficient paragraph of complaint is harmless .error where the record shows that the judgment was based on other paragraphs.</p> <p>Insurance. — Life.—Assignment of Policy. — Case Adhered To. — The case of Union Central Life Insurance Company v. Woods, as to assignment of policy by the beneficiary, the wife, to secure her husband’s debt, adhered to.</p> <p>Same. — Life.—Amount of Policy Paid to Supposed Assignee.— Remedy of Beneficiary. — Where an insurance company has paid the amount of the policy to a supposed assignee of the policy, but the assignment is voidable for the reason that it was made to secure a debt of the assignor’s husband, the wife, the beneficiary, may pursue the insurance company for the amount "of the policy, or may compel the supposed assignee to pay the amount over to her.</p>

<p>Appeal. — Dismissal Of. — Parties Plaintiff. — Notice.—Where one of several co-parties appeal, lie must make the other co-parties appellants and serve notice of the apx>eal on them, or the apx>eal will he dismissed.</p>

<p>Municipal Corporation. — Sewer.—Notice, Sufficiency. — Notice of proposed sewer construction, signed by the city clerk, which shows, upon its face, that it was ordered by the council was clearly the council's notice, and was sufficient.</p> <p>Same. — Sewer.—Notice for Hearings. — Publication of notice on September 2d and each succeeding day, except Sruiday, up to and including September 16th, the day appointed for the meeting for hearings, was sufficient notice.</p> <p>Same. — Sewer.—Notice of Hearing of Report. — General.—A general notice that the engineer’s report has been made, and that a heaving will be had thereon at a specified time and place, is sufficient, without special notice to the land-owner.</p> <p>Same.- — Notice.—Legislature..—The power to fix the kind of notice lies with the Legislature.</p> <p>Same. — Sewer.—Benefits Passed Upon by Common Council. — Not Reviewable by Any Other Tribunal. — The question of benefits to property in a city from the construction of a sewer having once been passed upon by the common council, no other court or tribunal has any power to review or pass upon it.</p>

<p>Alteration op Instrument. — Note.—Alteration by Stranger, by Servant of Payee. — Spoliation.—Recovery.—A being a traveling salesman for B, but not a general agent, and having no authority to make settlements or take notes on B’s accounts, was instructed by B to procure for him, from C, a note on account of an indebtedness due from C to B, and having procured the note, and while he was in the process of conveying the same to B, and without the authority, knowledge or consent of either B or C, A altered the note by striking out the words “after maturity” and inserting the words “from date,” so as to make the note read “with eight (8) per cent, interest from date.”</p> <p>Held, that, although alteration was a material one, A when he made the alteration of the note stood in the relation to it of a stranger, and as servant to the payee, and that his act was a mere spoliation. Held, also, that B, not having ratified the act of A, could enforce the note in its original form.</p> <p>Same. — Agent.—Servant.—While A was engaged in treating with C, concerning the note, he was an agent; when the note was delivered to him, it was in law delivered to B, and A ceased to deal with C, and was no longer an agent; all of A's duties concerning the note then related to B, in carrying and delivering it to him, and he was a mere servant of B.</p> <p>Same. — Prevailing Rules as To. — For prevailing rules in relation to alteration of instruments, see opinion, p. 85.</p> <p>Master and Servant. — Distinction Between Servant and Agent.— There is a legal distinction between agent and servant. Agency, in its legal sense, always imports commercial dealings between two parties by and through the medium of another, and the agent negotiates and treats with third parties in commercial matters for another. A servant is concerned with matters of manual and mechanical execution, while an agent is the more direct representative of the master or principal, and clothed with higher powers and broader discretion than a servant.</p> <p>Public Policy. — Defense.—The doctrine of public policy can only be invoked to prevent and not to perpetuate a fraud.</p> <p>Davis, C. J., and Gavin, J., dissent.</p>

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

<p>Pleading. — Complaint.—Note.—Indorser.—Notice.—That the averments of the complaint are not broad enough to bring the case within the exceptions to the rule that the indorser of a note is entitled to notice of nonpayment, as where the indorser is the principal debtor and the maker an accommodation-maker, see opinion.</p> <p>Promissory Note. — Indorser.—Notice.—To hold the indorser of mercantile paper, notice of dishonor muse ordinarily be given him.</p> <p>Same. — Indorser.—Accommodation Maher. — Notice.—But an indorser fori whose accommodation the note has been given is not entitled to notice.</p> <p>Same. — Indorser.—Notice.—Discounted by Indorsee. — Accommodation Maher. — Although the note be discounted by the indorsee to accommodate the payee who indorses it, yet the indorser is entitled to notice unless the note was executed for his accommodation as between himself and the maker.</p>

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

<p>Municipal Corporation. — Town.—Sidewalk Improvement. — Notice. — Act of 1859. — Under the act of 1859, for the grading and laying of sidewalks in incorporated towns, the ordinance for such improvement is sufficient notice to the lot-owner, where further notice is not provided for by ordinance.</p> <p>Same. — Sidewalk Improvement. — Notice.—Act of 1859. — Where after the passage of the ordinance requiring the improvement, the lot-owners were ordered to grade the sidewalk in front of their lots, that was all the notice they were entitled to, and it was immaterial whether such order was oral or written.</p> <p>Same. —Sidewalk. —Improvement Lien. —Notice.—The property-owner having had ample opportunity to be heard before the assessment was made, and before the work was done by the municipality, an improvement lien attached and was enforcible.</p> <p>Same. — Sidewalk.—Improvement Commenced by Lot-Owner. — Taken Charge of and Completed by Toivn. — Defense.—The fact that the lot-owner had undertaken to do the work himself will not prevent the municipality from taking charge of and completing it, unless it be shown that he had substantially complied with the requirements of the ordinance.</p> <p>Same. — Town Authorities Taking Charge of Work. — Notice.—The ■ lot-owner having had sufficient notice to make the improvement, it is not essential that he should again be notified of the intention of the town authorities to take the work into their own hands, if he has failed to comply with the requirements of the ordinance.</p> <p>Pleading. —Answer to Entire Complaint. — Partied Defense. — A fact which can only be a partial answer, is not available if it be pleaded in ansiver to the entire complaint.</p> <p>Same, — Answer.—General Denial. — Argumentative Denial. — It is not error to sustain a demurrer to an answer which is but an argumentative denial, when the general denial is also pleaded.</p> <p>Judgment. — Objection to Form. — When Not Available on Appeal.— Practice. — The form of a judgment cannot be an available objection on appeal, where no such objection was made in the trial court.</p>

<p>Contributory Negligence. — Special Verdict, Insufficiency. — Damages. — Personal Injury. — Where the jury find, in an action for injuries sustained by falling into a ditch in a street, that she was walking slowly and carefully when she (the plaintiff) was injured ; that she knew that the ditch was in the street; that the night was dark ; that she had reasonably good eyesight; but there is no finding that she was using her sense of sight, or that she had the ditch in mind at the time, nor that she was looking out for the ditch or paying any attention to where she was going, nor is the inferential fact found that she was, under the circumstances, using due care and caution at the time she was injured, the court cannot adjudge, as a matter of law, that plaintiff was entirely free from contributory negligence.</p> <p>Same. — When Negligence or Freedom from Is a Question of Fact.— Two Inferences.- — When two inferences may be reasonably drawn from the facts found relative to contributory negligence, then the ultimate inference of contributory negligence or freedom from such negligence is a question of fact for the jury.</p> <p>Evidence. — Personal Injury. — Excavation in Street. — Circumstances. —Ingress and Egress. — In an action for damages sustained by falling into a ditch in a street, while plaintiff was on her way home in the night-time, evidence touching the surroundings and the means of ingress and egress to and from her residence is admissible, as bearing on the question of due care.</p> <p>Pleading. — Action by Married Woman for Damages for Bodily Injury. — Necessary Allegations. — Recovery.—In an action by a married woman for damages for personal, bodily injury, the complaint should allege such facts as entitle her to recover; for ordinarily the right of recovery, in such case, is in the husband.</p>

<p>Record.— Several Paragraphs of Pleading Based on Same Written Instrument. — One Copy Siifficient. — Where several paragraphs are based upon the same -written instrument, each professing to set out a copy, one copy of such instrument in the record is sufficient.</p> <p>Principal and Surety. — Surety Assuming Part of Principal's Obligation. — Release.—Contract.—Consideration.—If a surety contract to assume a part of the principal’s obligation and release him therefrom, he may do so; and, in such case, the surrendering of a part of a judgment held by the principal, -whereby the surety and others were enabled to raise money on their lands to discharge liens, was sufficient consideration to support the contract.</p> <p>Harmless Error. — Sustaining Demurrer to Paragraph of Answer. —It is harmless error to sustain a demurrer to a good paragraph of answer, where the same facts are provable under another paragraph pleaded.</p> <p>Bill oe Exceptions. — Evidence, General Statement That All Is in Record — When Will Not Control. — A general statement that the record contains all the evidence given in the case will not control when it affirmatively appears from the body of the bill itself that it does not embrace all the evidence given in the cause.</p>

<p>.Decedent’s Estate. — Claim, Sufficiency. — Breach of Covenant.— Deed. — Possession.—Where a claim against a decedent’s estate for a breach of covenant in a deed discloses that the deceased, instead of delivering possession according to the covenant of his deed, retained possession, stating the amount of the claimant’s damage, the claim is sufficient, and it matters not whether the deceased retained personal possession or put another in his stead.</p> <p>Same. — Claim, Essentials Of. — It is not necessary that a claim against an estate fulfill all the requirements of an ordinary complaint.</p>

<p>Damages. — Real Estate. — Interfering with Enjoyment of Possession. —Railroad.—Where a person owning a certain tract of land, on. which were machinery and sheds for manufacturing brick from, clay, taken from said tract of land, sold the land to a railroad company, reserving the right to the possession of the entire tract of land for a period of one year, except a right of way sixty feet wide, the grantor is entitled to damages where the railroad company, shortly after the execution of the deed, entered the brickyard and constructed a track over the clay bed, making it impracticable to dig the clay and run the brickyard.</p> <p>Deed. — Intention of Parties. — Reservations and exceptions in a deed are, as a general rule, construed against the grantor, yet where the intention of parties can be fairly ascertained from a deed, such intention will govern.</p> <p>Conveyance. — What Precludes. — A grant of property includes, as incident thereto, all that is necessary to its enjoyment.</p> <p>Real Estate. — Right of Tenants to Work Open Mines, Clay Pits, etc. — Tenants for life or years are entitled to work open mines, quarries, clay pits and gravel beds.</p>

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

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

<p>Street Railroad. — Negligence.—Injury to Passenger. — Child on Car at Invitation of Driver. — Recovery.-—Where a driver on a street car invited a child about ten years of age to ride upon the car, and the child, while upon the car, in response to such invitation, was injured by the mules attached thereto giving the car a violent jerk while the driver had temporarily abandoned the lines and left them hanging loosely on the brake, the injury is one for which damages may be recovered.</p> <p>Negligence. — Facts Alleged to Constitute Negligence Stated in Complaint. — Two Inferences. — Laxo and Fact. — -Qxicere.—Where the facts constituting negligence are alleged in the complaint, and there is room for difference of opinion between reasonable men as to whether or not negligence should be inferred, is the right to draw the inference of negligence or no negligence therefrom, as in case of special verdict, for the jury, as a question of fact, or for the court, as one of law ?</p> <p>Bill of Exceptions. — Filing.—Recox'd.—Where there is nothing in the record to show that the bill of exceptions was ever filed in the clerk’s office, the bill is not properly in the record.</p>

<p>Erom Porter Circuit Court.</p>

<p>Decedent’s Estate. — Executor.—Final Report. — Claim of Executor. —Exception To. — Burden of Proof. — Claims of an executor, in his final report, for credits against the estate, are in the nature of separate complaints, and exceptions to them or any one of them placed the burden on him (the executor), and he is required to establish the correctness of Ms report in respect to such matters as are embraced in the exceptions.</p> <p>Same. — Issues Joined by Claim and Exception, Hoio Tried. — The issues joined on the claims for credits and exceptions thereto should be tried and determined by the same rules that govern in ordinary civil actions arising out of claims filed against estates of deceased persons.</p> <p>Same. — Strained or Technical Construction. — Claim.—No strained or technical rule should be applied to defeat a just claim in settling the estate of a deceased person.</p> <p>Same. — Executor Paying Claim Not Filed. — If a breach of a covenant by the deceased occurs before a final settlement of the estate, it is a proper claim against the estate; and while the statute contemplates that claims should be filed and allowed before being paid, still if the administrator or executor has paid a just and valid claim, he is entitled to credit therefor.</p> <p>Special Finding or Verdict. — Office Of. — The office of a special finding or verdict is to determine such facts embraced within the issues as give rise to the legal conclusions. These facts are usually the ultimate facts, the proof as contradistinguished from the evidence.</p> <p>Same. — Facts and Inferences. — What Should Be Stated.— Sometimes an ultimate fact contained in the verdict is a conclusion or inference' from other facts, in which case the verdict should also find and set out the facts wMch give rise to the inference or conclusion.</p> <p>Same. — Irrelevant and Foreign Matter. — Judgment.—If, after eliminating all irrelevant and foreign matter, the facts remaining are sufficient to support the conclusions of law, the verdict or‘finding will not be deemed insufficient to support the judgment by reason of such foreign matter.</p> <p>Same. — Silent as to Maternal Fact in Issue. — Where a verdict or finding is silent upon a material fact in issue, such silence is equivalent to a finding against the party having the burden of proving such facts.</p> <p>Same. — Recovery.—Before the plaintiff is entitled to recover, he is required to produce a state of facts which will supx>ort conclusions of law of his right to recover.</p> <p>Same. — Legal Conclusions. — Conclusion Not Warranted by the Finding. — The stating of legal conclusions not warranted by the findings will not be prejudicial error if the legal conclusions correctly drawn support the judgment.</p> <p>Same. — Sufficiency of Finding. — Judgment.—Recovery.—If a finding will not siqiport a judgment for the plaintiff, and the defendant has asked no affirmative relief rmderthe issues, then the finding will support a judgment in favor of the defendant.</p> <p>Venire de Novo. — When Awarded. — A venire de novo is only awarded in this State for formal defects in the verdict or finding of the court, such as ambiguity and uncertainty.</p> <p>Same. — Purpose Of. — It reaches defects in a verdict or finding that, in some instances, can be reached in no other manner.</p> <p>Same. — Special Finding. — Party Having Burden of Issue Entitled to Clear andUnambiguous Finding. — While irrelevant matter and unwarranted conclusions may be disregarded in drawing the legal conclusions and in pronouncing judgment, still the party having the burden of proof on any issue is entitled to have a finding thereon which is clear, certain and xmambiguous.</p> <p>Same. — Attempt to Find on a Fact in Issue. — Uncertainty. — If there be an attempt to find upon any issue or fact, and the finding falls short owing to the statement of legal conclusions and evidentiary matters, so as to render the verdict ambiguous or uncertain, then, the motion for a venire de novo must prevail.</p> <p>Same. — Cannot Be Granted as to Part Only. — A venire de novo, if granted, must be granted as to all the issues, and not to part only.</p> <p>Beal Estate.— Conveyance. — Breach of Covenant of Seizin.— Burden of Proof. — Where the grantor of real estate puts Ms grantee in possession with covenants of seizin, such covenants run with the land, and a remote grantee may enforce them against Ms remot.e grantor when he shows that he has yielded to a paramount title; but the burden of showing that such title was paramount, is upon the person disseized.</p>

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

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

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

<p>Bill of Exchange. — Oral Acceptance. — Debtor and Creditor.— Sufficiency of Complaint to Enforce Payment. — Where a creditor draws a bill of exchange on his debtor for balance due him, payable to a third party, and the drawee makes an oral acceptance of the same, a complaint to enforce payment by the drawee, which alleges, among other things, the acceptance, and that the bill is due and unpaid, is sufficient without alleging that the drawee, at the time of his acceptance, had funds of the drawer in his hands with which to meet the bill.</p> <p>Same. — Oral Acceptance. — Statute of Frauds. — Debtor and Creditor. —Consideration being presumed, oral acceptance by the drawee was a promise to pay his own debt owing to the drawer, and did not come within the statute of frauds.</p>

<p>Landlord and Tenant. — Eviction of Tenant, What Amounts To.— •A landlord having rented a farm to A and B- for a term of five years, and before the end of the first year having put another into a house on the farm, who began to plough for wheat, the landlord having rented the farm to the latter for a term of five years, the acts of the landlord were of such a serious and permanent character as to indicate an intention upon the part of the landlord to deprive the lessees A and B of the enjoyment of the land, and amounted to an eviction from part of the land.</p> <p>Same. — Eviction from Part. — Right to Abandon the Whole. — If a tenant is evicted from a material part of the premises, he has a legal right to abandon the whole.</p> <p>Evidence. — Inapplicable to Issues. — Evidence not applicable to the issues is inadmissible.</p>

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

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

<p>Evidence. — Relevancy.—Statement of Counsel. — Whenever the evidence does not obviously bear on the question at issue, the court should be advised of its character, that its relation to the case may be seen, and if such evidence is objected to, there should be an offer, in some form, that the witness will, if permitted to answer the question, testify to a given fact.</p> <p>Special Verdict. — Duty of Jury. — Facts Which Jury Cannot Agree Upon. — It is the duty of the jury in returning a special verdict, to find all the ultimate facts within the issues, and upon which evidence was given, one way or the other, and, in the event they cannot agree upon any fact upon which evidence has been given, the verdict should state what fact or facts it cannot agree upon.</p> <p>Same —Duty of Court to Require a Finding or Report a Disagreement. — Instruction.—It is the duty of the court to require the jury to find one way or the other on the facts in issue, and upon which evidence was introduced, or report a disagreement on such fact or facts upon which they cannot agree.</p> <p>Same. — Distinguishing Between Evidentiary Facts and Ultimate Facts and Conclusions of Law. — It is often difficult to distinguish between evidentiary facts and ultimate facts, and between.ultimate facts and conclusions of law, for no general rule can be laid down for such determination. Each case must depend largely upon its own particular issues, character and circumstances.</p> <p>Same. — Evidentiary Fact, When Will Take Place of Ultimate.— Where the finding of an evidentiary fact is such as to necessarily involve the essential or ultimate fact, the failure to find the ultimate fact in direct terms may be immaterial; but if the existence of the evidentiary fact is not inconsistent with the non-existence of the ultimate fact, or if the existence of the ultimate fact is equivocal or doubtful, then the verdict or finding is insufficient.</p> <p>Jury. — Inability to Agree Upon Material Fact.- — Discharging Jury.— Practice. — Special Verdict. — It does not necessarily follow that because the jury disagreed upon a material fact, it became the duty of the court to discharge independently of any motion to that effect.</p> <p>"Venire de Novo. — How Differs from Motion for a Neio Trial. — The essential difference between a motion for a new trial and that for a venire de novo is that a motion for a venire de novo is never granted except for cause appearing on the face of the record, while a new trial may be obtained on extrinsic causes. They both accomplish the same result, but proceed upon different grounds.</p> <p>Same. — Beaches What Defects. — Some things may occur on the trial that cannot be reached by a motion for new trial, and these tilings generally relate to the verdict itself, and can only be reached by a motion for a venire de novo.</p> <p>Same. — Special Verdict. — Failure to Find Upon All the Issues, or on a Material Fact in Issue. — Under the practice in this State, the failure to find upon all the issues, or the failure to find any material fact within the issues, does not entitle the moving party to a venire de novo. Silence upon any issue, or upon any material fact within the issues, is regarded as a finding against the party having the burden of proof upon such issue or fact.</p> <p>Same. — Finding Contrary to Evidence, Remedy. — New Trial. — If the verdict is contrary to the evidence upon such issues or facts, the remedy is by motion for new trial and not by a venire de novo.</p> <p>Same. — Verdict.—Special Finding by Court. — The motion for venire de novo applies, under the practice of this State, to special findings by the court as well as to verdicts.</p> <p>Same. — Motion for, When May Be Entertained. — Under the practice of this State, a motion for a venire de novo can only be entertained when the verdict or finding is so defective (in matter of form), uncertain, or ambiguous upon its face, that no judgment can be rendered upon it, and the question of insufficient or indefinite findings can be presented in no other way.</p> <p>Same. — Attempt Which Falls Short of Finding Ultimate Fact. — If there be an attempt to find under an issue, or an attempt to find an ultimate and essential fact, and such attempt falls short because of conclusions or of evidence or evidentiary facts stated, then the verdiet or finding must go down before a motion, for a venire de novo.</p> <p>Same. — Disregarding Legal Conclusions and Evidentiary Facts in Verdict or Finding. — Exception to Rule. — In considering a judgment upon a special verdict or finding, conclusions of law, evidence and evidentiary facts, and findings not within the issues may, as a' general rule, be disregarded; and if, after such elimination, the verdict is still complete, definite, and certain, and will support a judgment for either the plaintiff or defendant, then a motion for a venire de novo will not prevail. But there are exceptions to this general rule, where conclusions of law and evidence and evidentiary facts cannot be disregarded, as where there is an affirmative defense and the verdict or finding states the facts showing a right of action in plaintiff, and then states conclusions of law or matters of evidence in attempting to find upon the affirmative defense which it is apparent, if in proper form, would defeat the plaintiff’s action. In such a case the conclusions of law and matters of evidence could not be disregarded, and a motion for a venire de novo should prevail.</p> <p>Same. — Failure to Agree on Material Fact. — Special Verdict. — A failure to agree upon a material fact renders the verdict defective and uncertain, and a motion for a venire de novo should be sustained'unless for some other reason apparent upon the record substantial justice has been done by the judgment rendered.</p> <p>Burden of Proof. — Special Verdict. — Recovery.-—The party having the burden of proof must produce such a state of facts in the verdict or finding as will support the legal conclusions of his right to recover.</p> <p>Same. — Replevin.—Issues.—In an action of replevin, where the only answer is the general denial, the plaintiff, under such issue, must show his right of possession, and if the defendant attempt to prove his right of possession the burden under such issue is upon him.</p> <p>Fraud. — Special Verdict. — Ultimate Fact. — Fraud, in this State, is a question of fact, and must be found and stated as a substantive fact, and not merely the badges of fraud; and the same rule applies to the absence of fraud.</p>

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

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

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

<p>Judgment. — Agreement Compromising Controversy. — Advancements. —Subsequent Equalization and Extinguishment by Ancestor.— Revival of Advancements by Agreement of Heirs. — Collateral Attaclc.- — T, a large property owner, had made advancements in various amounts to his children and grandchildren. Afterwards, being old and infirm and intending to make a general settlement with his descendants, and to equalize former advancements, he made conveyances to them, at the same time surrendering to each all receipts and other evidences of advancements. Subsequently he sold the remainder of his land to M;the husband of one of his daughters, taking notes, secured by mortgage, for the purchase money. Af ter this some of the parties instituted proceedings to have T declared of unsound mind and incapable of managing his estate. While this proceeding was pending T assigned the notes received by him from M to two other children, and soon afterward died. An action was then brought by some of the heirs against the others in which it was sought to have the above mentioned deeds, and the assignments of the notes and mortgage and the delivery of the receipts and notes to his descendants, set aside on account of fraud and undue influence and want of capacity. An agreement of compromise was afterwards made between the parties, and adopted by the court in the judgment rendered in that case, whereby the defendants paid into the hands of C and A, as trustees, a certain sum of money which, after payment of attorneys’ fees, costs and expenses, was to be distributed among the plaintiffs according to their interests, “ taking into account advancements ” theretofore made by T. Action by B, one of the plaintiffs, against the trustees and others, to determine her interest.</p> <p>Held, that the agreement of compromise and the judgment rendered in pursuance thereof are binding upon the parties and not subject to collateral attack ; that, although T may, in his lifetime, have treated the advancements as extinguished, the effect of the agreement was to revive them ; and that the advancements received by B were properly taken into consideration in fixing her interest in the fund in the hands of the trustees.</p> <p>Same. — Attorney’s Power to Compromise. — Presumption.—Absence of Client. — The attorney for a party plaintiff will be presumed, until the contrary is shown, to have had full power to bind his client in an amicable settlement of the matters in controversy ; and where an agreement of compromise is signed by him, upon which a judgment is rendered, the judgment is not subject to collateral attack, although the client was not personally present when the compromise was agreed to.</p> <p>Special Finding. — Conclusions of lazo. — Amounts Due Each Party. —Only Necessary to Give Basis for Computation. — Where there is a special finding and conclusions of law in a case brought to determine the different interests of the parties in a fund, the court is not bound to state in its conclusions tbe exact amount coming to each party, but it is sufficient if it give the basis in such manner that, by a mere calculation, the amount can be readily found.</p>

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

<p>Estoppel. — Married Woman. — Business in Name of Husband.— Mortgage by Husband. — Rights of Creditors. — Where a wife furnishes money to her husband for the purpose of purchasing a retail drug store, clothes Mm with all the usual indicia of title, and permits him to carry on the business in Ms own name and to hold himself out to the world as the absolute owner, she is estopped to deny such ownersMp and his right to mortgage the stock, as against creditors who, in the regular course of business, and in reliance upon Ms apparent ownerslnp, sold goods to him on credit and after-wards took a mortgage thereon to secure the debt. Case ordered transferred to supreme court with recommendation that Mcdrr v. Sell, 60 Ind. 249, be overruled.</p> <p>Lotz, C. J., flies dissenting opinion.</p> <p>Same. — Evidence.—Husband's Declaration of Ownership. — Giving Credit Upon. — Declarations made by the husband in such case, to one from whom he purchases goods, that he is the owner of the business, are admissible to prove, in an action by the wife against such creditor, that credit was given to the husband on the faith of Ms ownersMp.</p>

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

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

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

<p>Slander. — Publication.—Words Spohen of and to Wife in Presence of Husband Only. — Tbe speaking of slanderous words of and to the -wife in the presence of the husband only constitutes a publication.</p>

<p>Appeal Bond. — Action On. — Recovery.—Measure of Damages.— Where the complaint and the finding show that at the time the appeal bond was executed the appellant owned sufficient property subject to execution to satisfy the judgment, but that when the appeal was dismissed he owned no property subject to execution, the plaintiff is entitled to recover on the bond, and the measure of plaintiff’s damages is the amount of plaintiff’s judgment with interest and costs.</p>

<p>Pleading. — Complaint.—Damages for Deceit. — In an action based on deceit in the exchange of property, the complaint is insufficient which does not disclose that the x>rox>erty bargained for was never conveyed to xilaintiff. For facts of comx>laint, see oxiinion.</p> <p>Fraud. — Fraud is never presumed, but must be alleged and proved before it can be adjudged to exist.</p> <p>Harmless Error.' — Overruling Demurrer to Dad Paragraph of Complaint. — -Unless it clearly appears from the record that the judgment is founded on a good paragraph of complaint, the error of overruling a demurrer to a bad paragraph cannot be regarded as harmless.</p>

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

<p>Record. — Clerk’s Certificate, What Includes. — Papers Filed After Date of Certificate. — The certificate of the clerk as to the correctness of the record does not include anything filed after the date of the certificate.</p> <p>Same. — Bill of Exceptions.- — Filing.—If the record fail to show that the bill of exceptions was filed in the clerk’s office after it was. signed by the judge, it is not properly in the record.</p>

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

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

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

<p>Pleading. — Complaints.—Action On Clerk of Circuit Court's Bond.— Letters of Guardianship. — The complaint, in an action on a clerk’s bond, which shows a breach by the clerk of his bond in wrongfully issuing letters of guardianship, which, on their face, certified that he (the guardian) had been appointed in term time, when in truth, and in fact he had not been appointed by the court, and that by reason of such wrongful act plaintiff’s property was lost, sufficiently states a cause of action.</p> <p>Guardian and Ward. — Clerk Issuing Letters in Term Time ta One Not Appointed by Court. — Liability on Bond. — If a clerk issue letters of guardianship in term time, without the appointment-having been made by the court, and by reason of such appointment the guardian got possession of the ward’s property and squandered. it, the clerk is liable on his bond.</p>

<p>Elections. — County Board of Election Commissioners. — Power to Bind County for Tickets, Etc. — The board of county election commissioners has authority to order tickets, cards of instruction, and sample ballots, and the county is liable for the reasonable value of the work and supplies so performed and furnished.</p> <p>Same. — Board of Election Commissioners. — County Officer. — The hoard of election commissioners is not a county officer within the purview of the constitution or of the act of 1875 relating to duties of county commissioners.</p>

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

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

<p>Amendment oe Pleading. — When in Discretion of Trial Qourt.— Departure from Original Action. — So long as there is no change of the nature of the action, it is the right of the plaintiff to amend his complaint at any time before answer, without leave of court; but if the amendment seek to introduce a new and different cause of action, after a demurrer has been sustained to the complaint, and especially after a reversal in the appellate tribunal with direction to sustain such demurrer, whether such an amendment may be made as will change the cause of action, becomes a matter of discretion with the trial court; and if it appear that the proposed amendment is a departure from the original cause of action, and the court rejects it, the appellate tribunal will not disturb the ruling.</p> <p>Dissenting opinions by Gavin, J., and Davis, J.</p>

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

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

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

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

<p>Pleading. — Answer Setting Up Warranty and Breach Thereof.— Reaping Machine. — In an action for the purchase-price of areaping machine, an answer which alleged that the machine was warranted to do certain work, but that it failed to do such work as warranted, the manner of the work done by the machine being specifically described, which shows that the work was not done as warranted, is sufficient as showing breach of the warranty, and to advise plaintiff of what issue must be met.</p> <p>Same. — Answer.—Failure of Machine to Work Well. — Notice.—If the selling agent was present when the machine was tested, and failed to make it work properly, no further notice to the company of such failure was necessary.</p> <p>Venire de Novo. — Special Findings. — Evidentiary Facts. — The fact that special findings contain evidentiary facts and not ultimate facts, is no cause for a venire de novo.</p>

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

<p>Pleading.— Tort. — Willful Injury. — Complaint. — Negligence. — Where the theory of the complaint is that of a willful injury, it is not necessary to allege the negligence of the defendant and the want of contributory negligence on the part of plaintiff.</p> <p>Special Finding. — Negligence.—Willful Injury, — Where the action. is for a willful tort, it is not necessary for the finding to show negligence or want of contributory negligence.</p> <p>Railroad. — -Trespasser.—Willful Injury. — The fact that one who enters a train is a trespasser will not justify a willful or wanton, injury.</p> <p>Same. — Evidence. — Statements of Station Agent. — Passenger. — Freight Train. — In an action for damages for having been wrongfully expelled from a freight train, evidence of statements made by the station agent containing information concerning the arrival of the next freight train and that it would carry passengers, was admissible.</p>

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

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

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

<p>Assignment for Benefit of Creditors. — Assignor’s Claim of Exemption as Householder. — Failure to Select Articles of Property.— Agreement with Assignee to Pay Amount Out of Proceeds of Property. — Where an assignor, who makes an assignment for the benefit of creditors, waives or foregoes the right of selection of specific articles of property, under his claim of exemption, in pursuance of an agreement with the assignee that in lieu of such property he shall have the proceeds thereof to that amount in money, when the property is sold, the assignor, in view of the promise of the assignee, is entitled to the proceeds of such property, in the hands of the assignee, to the amount of his exemption.</p>

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

<p>Criminal Law. — Assault.—What Constitutes. — To make a case of assault, it must be made to appear that there was some unsuccessful effort on the part of the defendant to do physical violence to the person assaulted, and that the defendant had the present ability to commit such violence.</p> <p>Same. — Assault.—Purpose to Injure. — Threats.—A mere purpose to injure, however vigorously expressed, is not sufficient, unless it be accompanied by an effort to carry it into immediate execution.</p> <p>Same. — Assault.—Sufficiency of Evidence —That the evidence is sufficient to support a conviction of assault, see opinion.</p>

<p>Appeal. — Jurisdiction.—Review of Judgment. — Supreme Court.— Appellate Court. — In an appeal from a judgment in an action to review a judgment, jurisdiction is in the court which would have had jurisdiction of an appeal from the original action.</p> <p>Same. — Jurisdiction.—Supreme Court. — Action to Set Aside Tax Sale and Quiet Title. — Jurisdiction on appeal in an action to set aside a tax sale of real estate and declare it null and void and to quiet title, is in the supreme court.</p>

<p>Criminal Law. — Gaming House. — Indictment.—Time, When Not Essence of Offense. — Time is not of the essence of the offense of keeping a building to be used or occupied for gaming, and the indictment will not be insufficient, if the time of the offence be imperfectly stated.</p> <p>Same. — Gaming House. —Indictment. —Knowledge. — “Knowingly Permitting,” Etc. — An indictment in such case is insufficient, as being based upon the second clause of section 2173, R. S. 1894, to wit: “knowingly permits the same to be used or occupied for gaming,” where knowledge, by the defendant, of such offence is not averred.</p> <p>Same.- — Instruction.—Offence Not Sufficiently Charged.- — Prejudicial Error. — If the court charge the jury to convict upon proof of guilt under an insufficient charge of the offence in the indictment, it is prejudicial error.</p>

<p>Criminal Law. — Reporting False Measure. — Two Offences Charged in Same Count. — Affidavit.—That an affidavit charging the defendant, who had charge of a pair of scales, with having knowingly reported a false and untrue weight, is sufficient, and does not contain a charge of two offences in the same count, see opinion.</p> <p>Same. — Sufficiency of Evidence. — That the evidence is insufficient to support such charge, see oxiinion.</p>

<p>Pleading. — Answer.— Garnishment. —Attachment.—An answer alleging that the defendant has paid the amount demanded in the complaint in discharge of a judgment rendered against him in garnishment proceedings, but which does not allege that any writ of attachment was ever issued in the cause, nor what judgment, if any, was rendered by the court against him in the attachment proceedings, is insufficient on demurrer for want of facts.</p>

<p>Injunction. — Restraining a Resident from Prosecuting Attachment Proceedings in Foreign State. — Violation of Order. — Liability in Damages to Debtor. — Since the courts of this State have the power to restrain a resident of the State from prosecuting an. attachment proceeding in a foreign State, against a resident of this State, in violation of the section (2283, R. S. 1894) of the criminal statute, a person .who, in violation of such a restraining order, prosecutes such proceeding in attachment or garnishment to judgment, and collects the same, is liable in damages to the one from whom the debt is thus collected.</p> <p>Same. — Damages.—Failure to Obey Mandate. — Sufficiency of Answer. — Defense. ■ — • In an action by the debtor for damages by reason of the failure of the plaintiff in the attachment proceeding to obey the mandate, and collecting money belonging to the debtor from the garnishee defendant, an answer is insufficient which does not deny the injunction, but relies upon the fact that the appellee did not appear in the attachment proceeding and plead the injunction in his defense.</p> <p>Same. — Damages.—Notice to Garnishee. — Defense.—The fact that the garnishee in the attachment proceeding was not notified of the injunction, and was not a party thereto, cannot avail the defendant in the action for damages.</p> <p>Same. — Notice of Contents of Decree. — Certified. Copy. — One who was a party to an injunction proceeding, which resulted in an order and decree for injunction, is bound to take notice of the contents of such order and decree, and it is not necessary to serve upon him a certified copy of the same.</p> <p>Record. — Of Court of Another State. — When Properly Authenticated. — Jurisdiction.—The record of a court of another State is properly authenticated where the same is attested by the clerk of such court, under his hand and the seal of the court, and the judge of the court certifies that the person who signed the certificate was the clerk of the court, and that the attestation is in due form of law. In such case jurisdiction of the foreign court will be presumed. '</p> <p>Evidence.— Excluding. —Tending to Establish Defense Formerly Adjudicated. — Damages.—Injunction.—It was not error to reject evidence in an action for damages for failure to obey an injunction, which tended to establish the same defense set up in the injunction proceeding and determined against the defendant.</p>

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

<p>Slander. — Whore, What Constitutes. — A single act of illicit sexual intercourse does not, in all cases, constitute a woman a whore. For instructions refused on such questions, see opinion.</p>

<p>Parties. — Defendant. —Subscription Contract. — Nonliability.—A defendant in an action based on a subscription contract is not liable where such party was not a subscriber.</p> <p>Pleading. — Complaint.—Individual Liability on Subscription Contract.— In an action on a subscription contract, the complaint does not show a cause of action against any of the defendants severally, if it fails to disclose any defendant to be in default on his subscription.</p> <p>Mechanic’s Lien. — Action to Foreclose. — Notice of Lien Should Be Made Part of Complaint. — The notice to hold a mechanic’s lien is the foundation of the action to foreclose the lien, and the original or a copy thereof should be filed with the complaint.</p> <p>Same. — Foreclosure.—Complaint.-—Record. — Notice.- — Appeal. —The fact that a copy of the notice appears in the transcript as having been given in evidence, to which reference is made by note at the end of the complaint, will not obviate the necessity of copying such notice in the transcript in connection with the complaint with which it is filed, unless it be shown that the instrument, or copy referred to, was in fact filed.</p> <p>Appellate Court Practice. — Insufficient Complaint. — Intervening Errors Harmless. — Where, under the averments of their complaint, the appellants are not entitled to any relief, any intervening error is harmless and must be disregarded.</p> <p>Same. — Appeal of Plaintiff. — Smallness of Judgment Assigned as Error. — Complaint Insufficient — If plaintiff appeal, assigning as cause for reversal the smallness of the judgment recovered, which judgment appellant could not have sustained on appeal by the appellees, by reason of the insufficiency of the complaint, neither could lie, upon the same complaint, have supported a larger one, and the cause will have to be affirmed.®</p>

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

<p>Mechanic’s Lien. — Description.—Sufficiency of Complaint. — Where, in an action to enforce a mechanic’s lien, the description in one paragraph and notice therein set forth is: “The north part of lot number twenty (20) in Walnut Hills addition to tlie city of Anderson, Madison county, Indiana, as well as on the one-story frame dwelling house recently erected thereon by you,” the descriptions in the remaining paragraphs and the notices filed therewith being" the same except as to number of lots and parts thereof, the descriptions, standing alone, are insufficient, and unless aided by averments in the complaint, such as would admit extrinsic evidence in. aid thereof, the complaint is insufficient.</p>

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

<p>Partnership.--Nontrading. — Power to Execute Partnership Note-Implied Authority. — A partner in a nontrading firm has no implied authority to execute a firm note, for the purchase of horses, in the absence of any necessity, usage or custom justifying use of the'firm name, although horses are used in the business.</p> <p>Same. — Execution of Partnership Note. — Scope of Partnership Business. — Burden of Proof. — In an action on such note, in order to justify a recovery over the plea of non est factum, the plaintiff was required to establish that the giving of the note was within the general scope of the partnership business; and if the partnership be a nontrading one, plaintiff must go further and show such additional facts as are necessary to establish the right, either directly by proof of express authority, or inferentially by proof of usage, custom or necessity therefor.</p> <p>Same. — Distinction Between Trading and Nontrading Partnerships.— Commercial Paper. — A marked distinction exists, a's to the power to execute commercial paper, between trading or commercial partnerships and those of nontrading or noncommercial partnerships.</p> <p>Same. — Trading Partnership, What Does Not Constitute. — It is not sufficient to constitute a trading partnership that a firm engaged in the dairy business should, in the course of its business, buy some articles such as wagons, horses, etc., not to sell again, but simply for use in its business.</p> <p>Same. — Nontrading.—Dairy Business. — Firm Note. — Implied Authority. — A partnership to conduct a dairy business is a nontrading partnership within the rules as to implied authority in one partner to execute firm paper.</p>

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

<p>•Record. — Affidavit on Motion for a New Trial. — A part of an affidavit on a motion for a new trial, stricken out by the court below, is not properly a part of the record on appeal, where it is neither presented by a bill of exceptions nor made so by order of the court, although it is copied into the record.</p> <p>Appellate Court Practice. — Newly Discovered Evidence. — New Trial. — The appellate court cannot pass upon the question of newly discovered evidence involved in a motion for a new trial, where all the affidavits and statements considered by the court below are not properly before it.</p> <p>Variance. — Between Complaint and Proof. — Tnist Fund. — There is not a fatal variance between the avermentof a complaint, in anaction to recover a trust fund derived from the sale of real property, that the property was sold for the sum of §1,000, and proof that the consideration was in lands of the value of §1,000.</p> <p>J udgment. — For Money. — Sufficiency.—Amount. — Calculation. — A money judgment is not unsupported because the special findings fail to assess the damages or amount of recovery, where there are enough facts found to enable the court to make a mathematical calculation and arrive at the amount of the judgment.</p> <p>New Trial. — Newly Discovered Evidence. — New evidence that would not change the result is not ground for a new trial.</p> <p>Statute oe Limitations. — Exceptions.—When Must Be Specially Pleaded. — A statute of limitations containing exceptions must be specially pleaded if relied upon as a defense, unless the complaint clearly shows that the plaintiff is barred, notwithstanding the exceptions.</p> <p>Trust. — Sale of Real Estate Held in Trust. — Trust Fund. — A valid trust in the piroceeds of a sale of real property conveyed to one under bis parol promise to hold the title for the benefit of another who paid the purchase price, is created by the former’s agreement to hold such proceeds for the use and benefit of the other, even if the trust could not have been enforced as to the real property.</p> <p>Same. — Express Parol Trust in Land. — When May Be Enforced as Resulting Trust. — An express trust in real estate, resting in parol, may be enforced as a resulting trust where one pays the consideration, and by agreement and without fraudulent intent the conveyance is made to another to hold the land in trust for the party paying the purchase money.</p>

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

<p>Fraud. — Partnership.—Failure, in Statement to Commercial Agency, to Disclose Individual Inabilities. — Failure of the members of a firm to disclose their individual liabilities in a statement furnished to a commercial agency, purporting on its face to relate to the financial condition of the firm, and not affirmatively stating that the members had no individual obligations, does not constitute fraud as a matter of law, entitling a seller to rescind a sale to the firm made upon the faith of a report in accordance with the statement.</p>

<p>Insurance. — Return of Appraisers. — Award.—Arbitration.—The return of appraisers selected by an insurance company and the insured to determine the damage to the insured property from fire is not an award by arbitrators within the law as to the conclusiveness of awards.</p> <p>Demurrer. — To Answer. — Admits What Facts. — Insurance.—A demurrer to an answer does not admit the truth of an erroneous allegation thereof that the complaint declares upon an award by appraisers, and not upon a policy of insurance, as a demurrer admits as true only those facts which tend to constitute a defense.</p> <p>Pleading.— Answer of Appraiser^ Award. — Complaint Based on Insurance Policy. — An answer of an insurance company, which merely attacks the validity of an award of appraisers selected to determine the damage, is bad where the complaint declares upon the policy, and alleges the facts with reference to the appraisement simply to show notice of the fire and want of good faith on the part of the company.</p>

<p>From tbe Hamilton Circuit-Court.</p>

<p>Master and Servant.— When Relation Exists. — So Brief Interval for Dinner that Servant Cannot Leave Premises. — Invitation.— Railroad. — Where so brief an interval (thirty minutes) is allowed an employe (a section hand) in which to eat his dinner that he cannot leave the premises of his employer for that puipose, his act in eating his dinner on the premises is an incident to the service; and the mere fact that the employe was not at work as a section hand at the moment he was injured is not conclusive that the relation of master and servant did not then exist. Under the circumstances, there was an implied invitation by the railroad company to the employe to eat his dinner on the premises.</p> <p>Same. — Brief Interval for Dinner. — When Relation of Master and Servant Continues During Sueh Interval. — Under the circumstances, the relation of master and servant and the duties incident to such relation continue during the interval for dinner.</p> <p>Same. — Duty of Master to Keep Premises Safe. — The rule is, in such case, that it is the duty of the master to keep in a reasonably safe condition, having in view the nature and character of the business, all the machinery and appliances used in and about the premises where the employes, in the performance of their services and matters incident thereto, would naturally and ordinarily be likely to go.</p> <p>Same. — Eating Dinner on Premises. — Invitation.—Going to Another Part of Premises to Pump House. — In such case it is not necessary to show that the employe remained on the premises to eat his dinner by invitation of the master, for the reason that the right to remain grows out of the relation of master and servant, which continues during such cessation from actual labor. But where a servant goes to another part of the premises — to a pump house near where he was working, as was the custom with him and his co-employes, the weather being cold and blustery — for the purpose of eating his dinner, and while so doing is injured by a defective boiler, it is incumbent upon him to show an invitation, express or implied, by the master to go to such other place.</p> <p>Same. — Incident to Service. — Servant Eating Dinner on Premises.— Invitation, Ultimate Fact, Special Verdict. — Recovery.—It was not necessarily. an incident to the employe’s service as section hand, that he should eat his dinner in the pump house in that vicinity, and before the servant can recover from the railroad company for an injury sustained there, the ultimate fact, where there is a special verdict, that the decedent was in the pump house in the line of his duty by invitation- of the company, must be found.</p>

<p>Drainage. — Land Owner’s Allotment of Diteh Cleaned by Township Trustee. — Lien for Expenses, How Created. — It is essential to a lien upon land for the expense incurred by a township trustee in cleaning a land owner’s allotment of a public ditch, that the trustee shall certify the cost thereof to the auditor, and that the latter shall place the same upon the tax duplicate as provided by R, S. 1894, section 5638.</p> <p>Same. — Conclusiveness of Allotment by Surveyor. — Action by Trustee for Expenses of Repairing. — An allotment of a public ditch by the surveyor under R. S. 1894, section '5633, is conclusive against the property owner, in an action by the township trustee for the ex-líense incurred in cleaning out such allotment, if the surveyor had jurisdiction.</p> <p>Same. — Lien for Expenses of Cleaning by Toivnship Trustee. — Collected as Other Taxes. — -Statute Construed. — A lien for the expense incurred by a township trustee in cleaning a property owner’s allotment of a public ditch is created by R. S. 1894, section 5638, providing’that the trustee shall certify the cost of the cleaning to the auditor, who shall place the same on the tax duplicate as other taxes against the land owner, to be collected as other taxes are collected.</p> <p>Same. — Action by Trustee to Foreclose Lien. — Personal Judgment.— A personal judgment may be recovered against a land owner in an action by a township trustee to recover the expenses incurred in cleaning the land owner’s allotment of a public ditch, and to foreclose a lien therefor upon his real estate, although the facts essential to a lien are not established, under R. S. 1894, section 5638, providing that such expense shall be collected as other taxes are collected.</p> <p>Same. — Notice of Time and Place of Hearing Objections, Necessary to Give Surveyor Jurisdiction to Make Allotments. — Service upon a resident owner of land, of a copy of a notice that the surveyor will hear objections that may be made to the allotments of a public ditch, is essential to confer jurisdiction upon the surveyor to make an allotment as against such owner, under Acts1889, section 3 (R. S. 1894, section 5634; Elliott Supp., section 1304), providing that “ a copy of said notice shall also be served upon the trustee of the township in which an allotment is made to any highway, as summons are served upon each resident owner.”</p> <p>Same. — Allotments of Ditch by Surveyor, When Subject to Collateral Attack. — An allotment of a public ditch by a surveyor under the Indiana statute is subject to collateral attack if he was without jurisdiction because of failure to serve the notice of a hearing of objections thereto, required by R. S. 1894, section 5684.</p> <p>Same. — Basis of Iden. — Record of Allotment Need Not Be Made Exhibit to Complaint. — The record of the allotment of a public ditch is not the basis of the lien upon the real estate of the owner for the expenses incurred by a township trustee in cleaning out the same, so as to require a copy thereof to be filed as an exhibit with the complaint in an action to foreclose such lien.</p> <p>Same. — Essentials of Complaint in Action by Trustee to Recover Amount Expended in Cleaning Allotment of Property-Owner.— A complaint in an action under R. S. 1894, sections 5682 et seq , to recover the amount expended by a township trustee in cleaning out a property-owner’s allotment of a public ditch, and to foreclose a lien upon the real estate, need not allege in detail all the facts neces- . sary to the legal establishment of the alleged public ditch, but an averment that a public drain, which is described, has been duly established and opened as such, is sufficient.</p>

<p>Accident. — Insurance.—Railroad Employe Struck by Cars While Walking Along the Track of Company Other than His Employer.— Clause in Policy Exempting Insurance Company. — Recovery cannot-be had for the death of a railroad employe struck by the cars, while walking along the track of a company other than his employer in returning to his home from his work, under a policy of accident insurance exempting the company from liability if the accident occurs while the insured is on a railroad roadbed, except in the case of an employe engaged in his prescribed duty as such.</p>

<p>Judgment. — Motion for Specified Amount Less than That of General Verdict. — When Properly Refused. — Answers to Interrogatories.— A motion for judgment upon interrogatories for a specified amount less than tbe jury find in their general verdict is properly refused, where the answers to the interrogatories are insufficient to warrant a judgment for so small an amount, even though they would warrant a judgment for less than the amount of the general verdict.</p>

<p>Liens. — Waiver of Priority. — Junior Mortgagee. — Mechanics Lien.— A junior mortgagee given priority for a certain sum by agreement of the first mortgagee waives such priority to the extent of the liens by subsequently permitting mechanics’ liens to be filed foiwork done under a contract made in the interval between the mortgages, and advancing the money on the junior mortgage -without requiring satisfaction of the liens.</p> <p>Same. — Priority of Liens. — Mortgage.—Mechanics’ Liens Acquired Subsequently to Mortgage. — Statute Construed. — That the security afforded by a mortgage on land is benefited by the erection of a building bn the land does not make subsequently perfected mechanics’ liens for material and labor furnished in the erection of such building superior thereto so far as the land is concerned, under R. S. 1891, section 7258, providing that mechanics’ liens take priority only over other liens subsequently created, as no change in the law relative to the rights of mortgagees was effected by section 7256, save as to the buildings.</p>

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

<p>Appellate Court Practice. — Weighing Conflicting Evidence. — Conflicting evidence will not be weighed by an appellate court.</p> <p>New Trial. — Action in Contract. — Excessive Verdict.-An assignment as a cause for a new trial in an action on contract, that the verdict or finding is excessive, does not call in question the amount of such verdict or finding.</p> <p>Evidence. — Insurance.—Sale of Goods'. — In an action by the assignee of an insurance xiolicy, a question requiring a witness to state whether a sale of the stock of goods insured was made by the assignor to plaintiff, and to state how he knew, is proper as a preliminary question, where defendant is given opportunity on cross-examination1 to bring out what the witness knew about the transaction.</p>

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

<p>Appellate Court Practice. — Sufficiency of Evidence. — Assignment of Error. — Excessive Damages. — The evidence will be held on appeal to be sufficient to sustain a verdict for damages, if under it the successful party is entitled'to anything, where there was no assignment in the motion for new trial that the damages were excessive or the amount of the recovery too large.</p> <p>Accident Insurance. — Insured Alloxoed Wages During Time of Disability. — Recovery on Policy. — That the employer of an insured allows him his wages during the time he is incapacitated from work does not prevent his recovery under a policy of accident insurance indemnifying him against the loss of the money value of his time.</p> <p>Same. — Evidence as to Suffering of Insured. — Damages.-—Evidence as to the suffering of the insured, and as to how much he slept during the injury, is admissible in an action upon a policy of accident insurance indemnifying him against the loss of the money value of his time, in so far as the discomfort may have interfered -with his capacity to work, but not as an independent element of damages.</p> <p>Same. — Defense.-—Injured in More Hazardous Glass Than That Insured in.— General Denial. — Evidence that the insured in a policy of accident insurance was in a more hazardous class when he was injured than that in which he was insured is not admissible under a general denial.</p> <p>Assignment op Errors. — Joint Assignment of Several Instructions.— A joint assignment of error in giving several specified instructions fails if any one of such instructions is correct in fact, or, by failure of counsel to discuss it, is deemed to be correct.</p> <p>Same. — Error Not Discussed. — Waiver.—An assignment of error that is not discussed will be deemed by the appellate court to have been waived.</p>

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

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

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

<p>Street-Improvement Assessment. — Property Abutting on Bridge not Improved not Liable for Assessment. — An abutting property-owner is not assessable, under R. S. 1894, section 4298, providing that the cost of street improvements shall be assessed at a sum fixed by multiplying the average cost per running foot by the number of running feet of each owner abutting on the street improved, for that part of his property which abuts on a bridge in the street, which bridge is not improved.</p>

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

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

<p>Attachment. — Property of Resident Householder, When Not Subject to Attachment. — Exemption.—If a defendant present to the sheriff a duly verified inventory of all his property, containing all the requisites of the statute, and makes the affidavit required, he being a resident householder of the State, and it appearing from the inventory that his property of every kind does not exceed in value six hundred dollars, the defendant’s property is not subject to attachment under such circumstances.</p> <p>Harmless Error. — Cause Fairly Tried and Determined. — Reversal.— Appellate Court Practice. — Overruling a demurrer to a pleading will not amount to reversible error if it appear from the whole record that the merits of the cause have been fairly determined.</p>

<p>Record. — Answer Stricken Out, When a Part of Record on Appeal.— A paragraph of an answer stricken out' on the trial is not part of the record on appeal, unless made so by bill of exceptions or an order of the court, even though copied into the transcript by the clerk.</p> <p>Harmless Error. — Defense.—Striking Out Affirmative Answer.— Same Facts Provable Under General Denial. — Appeal.—Matter of defense pleaded in a paragraph of an answer which does not constitute a plea in abatement, or set-off, or a plea of the statute of limitations, -may, under R. S. 1894, section 1528 (R. S. 1881, section 1460), be given in evidence without plea, so that the striking out of such paragraph, even though error, is harmless.</p>

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

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

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

<p>County. — Inability for Personal Injury Caused by Defect in Highway. — A county is not liable for injuries sustained by a person by reason of defects in a free gravel road or an ordinary highway.</p>

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

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

<p>Pleading. — Complaint.—Personal Injury of Servant. — Incompetent Co-employe. — An allegation, in a complaint for injuries sustained by the negligence of a fellow-servant in charge of a railroad engine, that such fellow-servant “was not a locomotive engineer, and that he was incompetent,” is equivalent to the charge that he was unfit and unable to do properly what was required of him to run and operate said locomotive, is sufficient to withstand a demurrer.</p> <p>Same. — Complaint.—Incompetent Co-employe. — Proximate Cause of Injury. — That the complaint is sufficient as showing that the injury was the result of the incompetency of the fellow-servant, who liad charge of the locomotive, see opinion.</p> <p>Master and Servant. — Sufficiency of Evidence on Appeal. — Incompetent Co-employe. — Damages.—That the evidence is sufficient to sustain the verdict for plaintiff in an action for damages sustained by reason of the incompetency of a co-employe, see opinion.</p> <p>Same. — Duty of Master to Employ None But Competent Servants. — ■ Duly of Employe. — An employe has the right to presume that Ms employer will employ none but competent co-employes; and it is not a servant’s duty, unless there is something to put Mm on inquiry as to his co-employe’s fitness, to institute an inquiry as to his qualifications.</p> <p>Same. — Knowledge of Co-servant’s Incompetency. — Assumption of Sisk. — One who knows, or by the exercise of reasonable diligence might have known, of the incompetency of a co-employe, and with such knowledge continues in service with Mm, assumes all risk incident to such incompetency.</p> <p>Dissenting opinions by Reinhard, C. J., and by Ross, J.</p>

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

<p>Insurance. — Refusal to Pay Loss. — Waiver of Condition to Arbi trate. — -An insurance company which, refuses to pay a loss, without offering to submit to arbitration the question as to the amount of damages, waives compliance with a provision in the policy that any disagreement as to the amount of loss shall be submitted to appraisers.</p> <p>Same. — Waiver of Written Notice of Loss, What Amounts to. — An insurance company which acts upon a notice of loss by its agent, and recognizes the sufficiency thereof by requiring additional proofs' of loss and sending an adjuster, waives a provision in the policy requiring the insured to give written notice of the loss.</p> <p>New Trial. — Assignment for. — Excessive Damages. — Action on Contract. — An assignment as ground for new trial that excessive damages were assessed, which applies only to cases of tort, raises no question on a motion for new trial in an action ex contractu on an insurance policy.</p> <p>Pleading-. — Same Exhibit May Serve as Such for All Paragraphs Based Upon It —Record.—An exhibit which is once filed with a pleading may be used as an exhibit for all subsequent paragraphs of the pleading of which it is made a part.</p>

<p>Pleading. — Complaint.—Willful Failure to Deliver to Assessor last of Taxable Property. — A complaint alleging that defendant willfully failed and refused to deliver to the assessor a list of taxable property, as required by R. S. 1894, section 8465, providing a penalty for failure to willfully refuse to deliver such list, sufficiently alleges that the assessor tendered a blank upon which to make the list, as required by section 8458.</p> <p>Evidence. — Cross-Examination of Witness. — Discretion.—The scope of the cross--examination of witnesses is largely in the discretion of the trial corn-t.</p> <p>Same. — Excluding.—Harmless Error. — Error, if- any, in excluding evidence is cured where such evidence is subsequently admitted.</p>

<p>Action. — Conversion,—Money Had and Received. — An action, either for conversion, or for money had and received, may be brought against one to whom the money is sent, with directions to pay a particular debt due from the sender to a third party, where he in disregard of such direction converts the money to the use of some one else. '</p> <p>Conversion. — Misapplying Proceeds of Accepted Draft. — Corporation. — The president of a corporation who discounts accepted draft, sent to the corporation with an express direction that it shall be used to discharge a note of the corporation, on which the sender is an indorser-, and uses the proceeds of the draft in paying the employees of the corporation, is guilty of conversion, even though such sender was indebted to the corporation in excess of the amount of the draft.</p> <p>Dissenting opinion, Ross, J.</p>

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

<p>Negligence. — Sale of Poisonous Drug for Harmless One. — Evidence. —Tbe mere sale of a poisonous drug to one who asks for a harmless one, is insufficient to show negligence of the druggist in making the sale.</p> <p>Same. — In Sale of a Drug. — When Erroneous Label of Wholesaler Will Not Protect Retailer. — The label of a harmless drug placed by reputable wholesale dealers on a poisonous drug purchased from them, will not protect from liability a retail dealer, who fails to discover the mistake in handling the drug and putting it into a jar, and who negligently sells it as the harmless drug indicated by the label.</p>

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

<p>Railroad. — Damage to Land by Fire. — Complaint, Insufficiency. — A complaint for damages for fire set by defendant’s locomotive, alleging that defendant failed to keep its right of way free from combustible material, and its servants negligently set fire thereto, is insufficient where it does not allege that defendant negligently permitted the fire to escape from its right of way.</p> <p>Same. — Evidence.—Inability.—Payment of Loss by Same Fire, to Other Land-owners. — Evidence that defendant paid other land-owners for losses caused by the same fire for which plaintiff brings suit is inadmissible to show that defendant recognized its liability.</p> <p>Same. — Special Verdict. — Real Estate. — Description.—Clerical Error. —A special verdict in an action for damages from fire set by defendant’s locomotives, agreeing with the description of the land contained in the first paragraph of the complaint, will not be presumed to have been based solely on the second paragraph, which gave a different description of the land, although the discrepancy is claimed to be simply a clerical mistake.</p>

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

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

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

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

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

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

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