Volume 131 — Indiana Reports

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

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

<p>Practice. — Erroneously Sustaining Demurrer to Reply. — Special Findings of Fact Curing Error. — Error occasioned by improperly sustaining a demurrer to a reply is cured if the special finding of facts show that the plaintiff was not deprived of putting his whole case into the record for review by the Supreme Court.</p> <p>Bankruptcy. — Foreclosure of Mortgage on Lands of Estate Pending Bankruptcy Proceedings. — If suit be brought against- a bankrupt, pending his proceedings in bankruptcy, to foreclose a mortgage upon land which he has assigned to his assignee in bankruptcy, and the assignee represents to the United States Court, in which the proceedings in bankruptcy are pending, that the lands ought to be abandoned because of no value to the estate in bankruptcy, and the court so orders, the foreclosure will be binding upon all who are parties to it. "</p> <p>Res Judicata. — All Defences Must be Plead in Foreclosure Proceedings. — In a foreclosure proceeding the defendant must set up all defences he is entitled to or he will be barred.</p>

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

<p>Practice. — Sustaining Demurrer to Special Answer. — Facts Provable Under General Denial. — It is not error to sustain a demurrer to a good affirmative paragraph of answer when all the allegations of facts contained in it can be proved under the general denial.</p> <p>Judgment.— Void and Voidable.— When is. — A judgment of a court of competent jurisdiction is not void unless the thing making it so is apparent upon the face of the record. If the infirmity do not so appear, the judgment may be voidable, but it is not void.</p> <p>Same. — Fraud.—Judgment Obtained by, Binding on Parties. — A judgment obtained by fraud is binding on the parties until set aside in some proceeding instituted for that .purpose.</p> <p>Same. — Death of Defendant Before Judgment Rendered. — If a defendant has been served with process and then dies, a judgment thereafter rendered against him is not void nor open to collateral attack.</p> <p>Administrator’s Sale. — • Voidable. — Five Years’ Statute of IAmitations. — A party to a voidable sale of land by an administrator is barred by the five years’ statute of limitations.</p> <p>Same. — Estoppel.—Heir Receiving Proceeds of Voidable Sale. — An heir of the decedent who receives and retains a part of the proceeds of an administrator’s sale which is voidable by reason of some defect in the proceedings, is estopped to contest the validity of such sale.</p> <p>Same. — Death of Heir After Notice and Before Sale. — No Second Notice. — Effect on Sale. — If an heir of the decedent die after notice given him of the commencement by the administrator of proceedings to sell real estate to pay debts of the estate, and a sale thereafter takes place without any further notice (or any suggestion of the death of such heir), and is affirmed, such sale is valid, and the heirs of such heir can not attack its validity.</p> <p>Same. — Fraud.—Death of Heir. — Failure to Give Second Notice. — A. died and left five heirs. B., one of the heirs, took out letters of administration, procured an order to sell lands to pay debts, but died before sale. C. was appointed administrator de bonis non, and secretly sold the land to D. at its appraised value, but for less than half that E. offered for it, with the fraudulent design of putting the title to the land in the latter, and of cheating the heirs of A. and B. The heirs of B. were not made parties to the proceedings to sell, and had no notice thereof, and were minors. The sale was affirmed.</p> <p>Held, that the sale was not void nor subject to collateral attack.</p>

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

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

<p>Pleading. — Supplemental Complaint. — Demurrer..—A demurrer will not lie to a supplemental complaint.</p> <p>Practice. — Conflict of Emdence. — If the evidence, though conflicting, tends to sustain the finding, the finding will not be disturbed.</p>

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

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

<p>Appeal. — Dismissal of. — Supreme Court. — Omission of Names of Certain Defendants in Docket-Entry. — An appeal will not be dismissed because the names of certain persons appear among the appellants who were not parties to the judgment, the persons referred to being parties to the action, and the judgment for costs being rendered' against the defendants generally, without setting out their names. The clerk, in giving the title of the cause in the docket-entry preceding the trial, seems to have omitted their names, but this was a mere clerical misprision which could not work a discontinuance of the cause as to them, or shield them from the judgment, which appears from the whole record to have been rendered against them and the other defendants.</p> <p>Trial by Jury.— When Cause can not be Withdrawn from Jury. — After a cause has been'submitted to the jury for trial, the evidence introduced, argument had, and the jury has retired for consideration, it is too late for the court to reconsider its ruling, and, without the consent of both parties, withdraw the cause from the jury and decide it on the evidence that had gone to the jury.</p>

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

<p>Chattel Mobtgage. — Given to Save Surety on Note Harmless. — Right of Payee of Note to Foreclose. — Trustee.— Who May Plead. — Disability of Married Woman. — The owner of personal property mortgaged it to his wife, the consideration being that she had become liable to pay certain notes executed by him; and it contained' a condition that if he should pay the notes and hold her “ harmless and exempt from paying the same, or any pai;t thereof, then ” the mortgage to be void, otherwise to remain in force.</p> <p>Held, that the lien of the mortgage attached to the property in the nature of a trust, so remained until the notes were paid, and that the payee or owner of the notes could maintain an action to foreclose the mortgage.</p> <p>Held, also, that her coverture could not be set up as a defence by those claiming a lien on said property which was subsequent to the lien of the mortgage, on the ground that there was no consideration for her assuming the payment of the notes for the reason that a married woman could not become surety.</p> <p>Held, further, that a contract of suretyship by a married womamean only be avoided by her or by those in privity of blood with or in representation of her.</p> <p>Tbustee. — Beneficiary’s Notice of Creation of Trust Fund. — It is not necessary that the beneficiary of a trust should have requested or have knowledge of the creation of the fund to enable him to maintain a suit therefor.</p>

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

<p>Practice. — Testing Complaint for First Time on Appeal. — Fule as to. — Where the sufficiency of a complaint is questioned for the first time in the Supreme Court by assignment of error, it will withstand such attack if it be sufficient to bar another action for the same cause, and would be good after verdict.</p> <p>Same. — Sustaining Demurrer to Good Paragraph. — Facts Provable Under General Denial. — It is not error to sustain a demurrer to a good paragraph of answer if all the matters therein averred are admissible in evidence under the general denial, which is pleaded.</p> <p>Bridges, — Neglect in Constructing or Fepairing. — County Liable. — A county is liable for a failure to exercise reasonable care in the construction of its bridges, or to exercise reasonable care in keeping them in repair.</p> <p>Same. — Counties not Insurers. — Anticipating New or Unusual Use of. — Counties are not insurers of the safety of their bridges, nor are they bound, when constructing them, to anticipate uses not then known, and necessities which are not within ordinary experience.</p> <p>Same. — Fepairing.—Sufficiency of. — In repairing bridges counties have performed their whole legal duty when they have put them in as good a condition of strength and soundness as will make them as secure as new bridges. of the same kind and plan.</p> <p>Same. — Latent Defects. — In the construction of a bridge a county is not liable for latent defects, which could not have been discovered by the use of reasonable diligence in the material used ; and it is only bound to use ordinary or reasonable care to make'the structure safe for the uses for which it was intended.</p> <p>Same. — Employing Suitable Person to Examine and Fepair. — Coumiy not Liable for His Error. — If a county employ a competent person to examine and repair a bridge, and he makes the examination and repairs it, and reports that it is sufficient, the county is not liable if his judgment as to the sufficiency of the bridge was erroneous.</p> <p>Same. — Ordinary Use of Bridge. — Plaintiff Must Show He was so Using. — In order to recover damages caused by a bridge breaking down, the plaintiff must show that at the time of the accident he was using the bridge in the ordinary and usual manner in which that bridge was, had been, and was intended to be used ; and if he was not travelling in the usual and ordinary way in that vicinity he can not recover.</p> <p>Same. — Extraordinary Use. — One who uses a bridge in an unusual manner or subjects it to an unusual or extraordinary load or strain, and is thereby injured, can not recover damages for such injury.</p> <p>Same. — Proof of Use of Bridges for Traction Engine. — In an action for an injury caused by a county bridge breaking down by reason of running a heavy traction engine upon it, it is error to allow the plaintiff to prove that traction engines had passed over other highways and bridges in the county, if the bridge broken down had been constructed several years before traction engines were known or used.</p> <p>Negligence.— When Question of Law for the Gourt. — Where the facts are undisputed, and can lead to only one conclusion, the question of negligence is a question of law for the court.</p> <p>McBride, J., dissents.</p>

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

<p>Life Insubaitce. — General Agent, Who Is. — Powers of to Grant Extension of Time of Payment. — An agent of a mutual life insurance company, assigned to the territory of a State, charged with the duty of soliciting applications for membership, collecting membership fees, organ- ! izing local aid societies, appointing sub-agents, and in addition thereto empowered “ to assist in working within the territory ” named, “ and to do and perform such, other acts and things as may be necessary to build up the interests and defend the rights of said life association in said territory,” is a general agent, and has power to orally agree to an extension of the time of payment of dues, even when the policy would be avoided if payment had not been made within the time limited, unless an extension had been granted.</p> <p>Same.— Waiver of Forfeitweby Accepting Payment — Extension of Time of Payment. — Death on Day to Which Time of Payment was Extended. — Company Liable. — A by-law of a mutual insurance company provided that full monthly payments were “ due from each member on'the first day of each calendar month, with the remainder of the month allowed as days of grace for payment,” and that the membership “should not cease until after the days of grace ” had expired. It was also provided that if any monthly payment was not paid to the association at its home office within the time as above stated, the membership should “ cease and terminate, the certificate become null and void, and all money paid thereon be forfeited to the association, and credited to the contingent fund.” The assured paid his installment, due September first, on October 4; the one due October first, November first; the one due November first, December 2d; and the one due due December first, by oral agreement with the general agent having the powers previously enumerated, was to have been paid January 5th; but-before the close of business hours the insured suddenly fell dead.</p> <p>Held, that the insurance company had extended the time of payment, and were liable.</p> <p>Same —Declarations of President of Insurance Company after Death of Insured. —Conversations had with the president of the insurance company after the death of the insured, tending to show the powers of the agent above mentioned, and also showing a willingness to have accepted the payments after the days of grace had elapsed, is admissible in evidence when taken in connection with the other facts.</p>

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

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

<p>Appeal. — In Term. — Bond.—The filing of a bond is an essential step in perfecting a term appeal, and where a bond is not filed within the time limited by the order granting the appeal, the appeal must be on notice.</p>

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

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

<p>National Banks — Assets Held in Trust. — For What Purpose. — The assets of a bank are held in trust: 1. For the payment of its indebtedness. 2. For the distribution among the stockholders of the surplus only, if any, after the payment of such indebtedness.</p> <p>Same.— Withdrawal of Assets — When Gan Not be Pone. — There can be no voluntary withdrawal of any portion of the assets of a bank, where the effect of such withdrawal will be to impair the capital stock, or endanger the security of its creditors. Where the capital stock of a bank is reduced to meet an impairment, and to escape an assessment by the controller of the currency, there can be no withdrawal of depreciated securities which caused the impairment.</p>

<p>Contract. — Extension of Time. — Forbearance to Sue. — An agreement to extend the time of payment of a debt for a limited period of time, even if • founded upon a sufficient consideration, is, in substance, an agreement not to sue within that time, and can not he pleaded in bar óf an action brought within that time. The only remedy for the violation of such an agreement is an action for damages.</p>

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

<p>Injunction. — Decree without Bond Being Filed. — Collateral Attach Upon. — A decree granting an injunction without a bond being filed is at most Only erroneous, and can not be collaterally attacked.</p>

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

<p>Municipal Coepobations. — Street Improvement in Oily. — Appeal.—Mow Transcript Construed. — Precept,■—By statute the transcript certified to the ’ circuit court by the city clerk in an appeal from a street improvement, constitutes the complaint of the contractor; and it should not be construed with rigid strictness against him, and ought to stand, unless there is some defect in it which affects the substantial rights of the parties.</p> <p>Same. — Right of Appeal Statutory. — The right to appeal from a precept is a statutory right; and there is no inherent right of appeal from it.</p> <p>Same — Questions Tried on Appeal. — Legislature May Restrict— The Legislature has the power to declare what questions shall be tried on an appeal, and may preclude parties from litigating such as it may deem properly settled by the decision of the municipal officers.</p> <p>Same. — Questions Antecedent to Making of Contract. — Transcript, What Included. — -No question that reaches back of the time of the contract for street improvement can be litigated on an appeal from a precept; and no irregularity in the proceedings prior to that time can be drawn in question. The steps taken in the proceedings prior to that time need not be incorporated in the transcript. Moberry v. City of Jeffersonville, 38 Ind. 198, McEwen v. Gilker, 38 Ind. 233, and Kreisch v. Helm, 45 Ind. 438, held to be overruled.</p> <p>Same. — Affidavit for Precept Made by Only One Contractor. — The affidavit of one of two or more joint contractors, to obtain a precept, is sufficient.</p> <p>Same. — Description of Lot Assessed. — Sufficiency of Affidavit as to. — If the notice to the property-owner of the amount of the assessment contains a description of the property owned, and such notice is combined with the affidavit for a precept, the latter need not contain a description of the lot against which it is desired to obtain a precept.</p> <p>Same. — Sufficiency of Affidavit fon- a Precept. — It is sufficient if the affidavit for a precept substantially conform to the statutory requirements; and it need not contain a recapitulation of all the steps that have been taken previous thereto in the proceedings. Section 3165, R. S. 1881. Balfe v. Johnson, 40 Ind. 235, and Clements v. Lee, 114 Ind. 397, distinguished. 1</p> <p>Same. — Appeal from Several Precepts. — Some of Affidavits Insufficient. — If there is a joint appeal from several precepts, and the several precepts are included in one transcript, and on such appeal the transcript is treated by the appellants as a single complaint, the overruling of a demurrer for want of facts is not an available error in the Supreme Court, even though some of the affidavits for precepts are defective.</p> <p>Same.t — Estimates of Costs, Engineer Makes. — The city civil engineer is the proper officer to make the estimate and apportion the costs to each lot or tract of land.</p> <p>Same. — Variance of Names of Contractors in Precept and Council Proceedings. —A variance between the names of the contractors as set out in the precept and in the proceedings of the council is immaterial if it reason, ably appears that one and the same person is meant.</p> <p>Same. — Assessment.— What is Sufficient. — Allowing Credit on Former Void -4s-sessments. — If the estimate of the city civil engineer is adopted and approved by the common council, that is a sufficient assessment; and the fact that the resolution adopting the estimate provides that property-owners who have paid part of former assessments which have been vacated, does not impair the effectiveness of such assessment.</p> <p>Same. — Assessment Void as to Other Property-Owners. — The owner of property against which a precept to collect an assessment has been issued, can not object to its enforcement on the ground that assessments against neighboring lots are void.</p> <p>Same.— Vacating' Void Assessment. — Re-Assessment.—Name of Owner Not Given. — If an assessment is void for not giving the name of the owner of the lot assessed, it may be vacated by the common council, and a new assessment made. A failure to state the name of a lot-owner correctly is sufficient to warrant a vacation of the asssessment.</p> <p>Lien. — Payment.—Tender.—To prevent a legal or equitable lien ripening into a title, the owner of the property must pay or tender the amount of the lien.</p> <p>Practice. — Theory of Trial Court.- — Appeal.—The appellate tribunal will act upon the theory voluntarily assumed in the trial court.</p> <p>Special Verdict.— When Sufficient. — Surplusage.—A special .verdict will be sustained if, after eliminating improper matters, it contains facts sufficient to sustain a judgment.</p> <p>Venire de Novo. — Object.— When Effective. — A motion for a venire denovo reaches matter of form, and is effective only when the verdict is materially defective.</p>

<p>County. — Liability to Worlmien Tearing Lown Bridge. — Liable Only to a Traveller. — A county is not liable for any injury to a servant while engaged in teai'ing down one of its bridges, although he works under the immediate charge or control of its agent, who is known to the board of commissioners to be incompetent. For an injury occasioned by an insufficient bridge, it is liable only to a traveller.</p>

<p>Breach oe Promise. — Evidence.—Illicit Intercourse.— Violent Conduct of Defendant. — Evidence showing all the facts in connection with the association of the plaintiff and defendant together and their treatment of each other, including their illicit intercourse with each other, and the defendant’s violent conduct to the plaintiff, is proper.</p> <p>Same. — Statute of Limitations. — -A right of action for a breach of promise to marry is not barred where the time between the first refusal to marry the plaintiff and the bringing of the suit is less than six years.</p> <p>Same. — Statute of Limitations. — Postponement of Marriage. — If there is an agreement to marry, and the time for its consummation is postponed from time to time by the defendant up to a date less than 'six years prior to the commencement of the action when the defendant refused to marry the plaintiff, the action is not barred by the statute of limitations.</p> <p>Practice. — Instructions.— Written. — Commenting on.— Waiver. — The practice of commenting on written instructions condemned.</p>

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

<p>Deed.— Use of Word “Executed.” — Delivery.—The word “executed,” in reference to the execution of a deed, implies a delivery.</p> <p>Special Findings. — Evidentiary Facts.— Use of Word “Executed” in.— Statements of evidentiary facts should not he inserted in a special finding, and will not be considered on appeal. For use of the word “executed,” in a special finding, as applied to a deed, see opinion.</p> <p>Same. — New Trial. — Assailing Conclusions of Law by. — A motion for a new trial is proper where there is a special finding; but it is not a proper mode of assailing the correctness of the conclusions of law.</p> <p>New Trial. — Bill of Exceptions For Not Necessary. — A motion for a new trial does not require a bill of exceptions to make it a part of the record.</p> <p>Practice. — Competency of Witness. — Question under Section 630, Hoiv Reserved. — A question upon the competency of a witness may be reserved under the provisions of section 630, R. S. 1881; and to present such a question it is unnecessary to bring all the evidence into the record. But to be available so much of the evidence must be stated as will enable the appellate tribunal to clearly understand the nature and effect of the ruling of the trial court and to see its prejudicial character.</p> <p>Same. — Competency of Evidence. — Reserved Question under Section, 630. — An independent and distinct ruling upon the admissibility of evidence may be presented on appeal as a reserved question of law under section 630; but the questions and answers connected with other evidence can not be so reserved without bringing in all the evidence upon the subject to which such questions and answers relate.</p>

<p>Negligence. — Direeling Verdict for Defendant.— When Should not be Done.— The court should not direct a verdict for the defendant, in an action to recover damages on account of the negligence of the plaintiff, if the evidence is such that a fair inference may be drawn from it that the defendant was guilty of negligence producing the injury, and that the plaintiff was not guilty of negligence which contributed to such injury.</p> <p>Same.— When Court may Direct Verdict for Defendant. — If from the evidence no reasonable inference of negligence on the part of the defendant causing the injury can be drawn, or there is but one reasonable inference to the effect that the plaintiff’s negligence contributed to the injury, then it is the duty of the court, on request, to direct the jury to return a verdict in favor of the defendant.</p> <p>Same. — Inference to be Drawn from Evidence. — Directing Verdict. — If the evidence is such that impartial men may differ as to the conclusion to be drawn from it, the court must submit the question of negligence to the jury ; but if there is no evidence supporting any particular fact or theory of the case and authorizing a reasonable inference of such fact or theory essential to a recovery or sufficient to create a reasonable difference of opinion,in the minds of impartial men sitting in judgment on the case, then it is the duty of the court to direct the jury to return a verdict against the party having the burden of establishing the material facts essential to a recovery. '</p> <p>Same. — Mine.—Injury in Shaft of. — For a case where the defendant is not liable for an injury inflicted by a descending cage, in the shaft of a mine, see opinion.</p>

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

<p>Pleading. — Complaint.—If the plaintiff is entitled to any substantial relief, on the facts stated in his complaint, a demurrer thereto should he overruled.</p>

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

<p>Taxes. — Injunction.—A tax-payer who asks that the collection of a tax assessment be enjoined must pay or tender the sum rightfully assessed.</p> <p>Same. — Notice.—Pleading.—In an action by a corporation to enjoin the collection of a tax assessment, if the complaint contains no allegation that notice of the meeting of the board of equalization was not given, it will be presumed that notice was given according to law, and where it appears that the board was in session it will be presumed that it was organized and convened according to law.</p> <p>Same. — -Valuation of Corporate Stock. — Notice.—Sections 6357, 6358, R. S. 1881, provide that “ the auditor shall annually, on the meeting of the county board of equalization, lay before said board the schedule and statement ” required to. be made and delivered to the assessor by corporations, and that the “ board shall value and assess the capital stock.”</p> <p>Held, that this is sufficient notice to the corporation that its capital stock will be valued. The act of March 9th, 1889, does not apply to such a case.</p>

<p>Practice. — Sufficiency of Pleading. — Review on Appeal. — Where a demurrer to a paragraph of a complaint is overruled, but plaintiff amends it before jpdgment, the defendant can not question the sufficiency of the original paragraph on appeal.</p> <p>Taxes. — Quieting Title.— Tax Deed. — Description.—In an action to quiet title by the holder of a tax deed, the provision of the act of 1881 (Elliott’s Supp., section 2143), that if the plaintiff’s title is invalid, the amount due shall he ascertained and the lien declared and foreclosed, applies as well to a defect in the description, as to any other defect in the steps necessary to pass a valid title, and proof of the misdescription may be made without special allegation of the misdescription.</p> <p>Same. — Imperfect Description of Land. — Lien for Taxes not Defeated Thereby. —While an imperfect description of the land in a tax deed will defeat the title, yet it will not defeat the lien, if the purchaser can show what property was intended to be taxed.</p> <p>Same. — Interest.—Where the State’s lien for taxes has been transferred to the purchaser, and a deed has been issued, interest is computed at twenty per cent, per annum. Elliott’s Supp., section 2143.</p>

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

<p>Venire de Novo.— When Lies. — A venire de novo will be awarded only when the verdict is defective in form.</p> <p>Fraud. — Rescission of Conveyance.— Value of Land Exchanged. — In an action to rescind a conveyance of land procured by the fraudulent representations of the defendant, it is not necessary to state the value of the land conveyed, though such a statement is proper.</p> <p>Same. — Allegation of Reliance on Fraudulent Representations. — A.n allegation that the plaintiff relied upon the representations of the defendant and was thereby deceived is sufficient to withstand a demurrer, without an allegation that the plaintiff had no information concerning them.</p> <p>Same. — Relying on Statements.— When Party May. — A party may rely upon the statements made to him by the defendant when he is ignorant of their untruthfulness and the subject-matter is not in the vicinity of the place of negotiation.</p> <p>Same. — Parties.—Person Holding Title to Land. — A person to whom land is conveyed, in an action for a rescission for fraud, is a proper party defendant, though he had no knowledge oí the fraud.</p> <p>Same. — Death of Defendant. — Substituting Administrator. — If a defendant, who is a party to a fraudulent transaction, die pending suit for a rescission, his administrator may be substituted.</p> <p>Same. — Evidence.—Admissions.—The admissions of a defendant, who furnishes the consideration to secure a conveyance of land executed by the plaintiff, and who is the real party in interest, though the conveyance was made to a co-defendant, are admissible, in an action to rescind the conveyance for fraud.</p>

<p>Juey. — Advisory.— Court may Disregard its Findings — In a case of equity jurisdiction where the court for its information submits certain questions of fact to a jury, the court is at liberty to disregard the answers of the jury to interrogatories, and to render judgment in disregard of the findings.</p> <p>Same. — -Instructions to. — In cases where the finding of the jury is merely advisory, and in no sense binding oh the court, it is doubtful if the reversal of a judgment because of instructions given to the jury in any such case would be advisable. Certainly not, where, as in the case at bar, the record affirmatively shows that the court did not follow the findings of the jury.</p> <p>Special Finding.— When too Late to Request— After a general finding has been announced by the court, it is too late for a party to request the court to make a special finding.</p>

<p>Railroad. — Construction of. — Damages.— Bight of Action.— When and to Whom it Accrues. — Does not Descend to Heir. — Answer.—In an action against a railroad company for the assessment of damages occurring by reason of the construction of a railroad across the lands of the plaintiff, which lands she inherited from her father and mother, an answer is good which pleads facts showing that the cause of action accrued long prior to the institution of plaintiff’s suit, in favor of the then owner of the lands, and that the right to recover the damage vested in him at that time. The right of action accrued at the time when the ancestor might have maintained an action for the damages or instituted proceedings to have had his damages assessed. This he could have done as soon as the grade was completed through the land connecting with and constituting one continuous road-bed for many miles on either side of the land as shown by the finding of facts. Such a right is a chose in action and does not descend to the heir as an incident to the real estate.</p> <p>Same. — Evidence.— When Proper to Strike Out. — In such an action it was not error for the court to strike out and take from the consideration of the jury certain evidence given on the trial with reference to the administration and settlement of the estate of plaintiff’s father, the complaint proceeding upon the theory that the plaintiff claimed the right, to have the damages assessed on account of being the owner of the real estate, and not upon the theory that her father owned the land at the time the cause of action accrued, and that the chose in action descended to her because she was the only child.</p>

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

<p>Mechanic’s Lien. — Furnishing Material. — Notice.—Sufficiency of. — The notice required under section 1692, Elliott’s Supplement (now repealed), to enable a person furnishing material to acquire a lien, need not be in writing. Mere information to the owner of a building that one is furnishing material to be used in its construction, or his personal knowledge of that fact alone, however acquired, is not sufficient ground upon which to base a lien. There must be some affirmative act or statement that will reasonably tend to put the owner upon his guard and afford him an opportunity to protect himself from loss.</p> <p>Same.— When Notice Must be Given. — Where the material is,.like brick, of such a nature that it may be used as fast as delivered, if notice is delayed until it has in fact been worked into and become a part of the structure, it is too late. A notice given after that time is not given at the time of the delivery of the material. A notice given, however, while the delivery of the entire number of brick contracted for was in progress would be good as to the portion of the brick not then used, although delivered before the date of the giving of the notice. Coefey, J., dissents.</p> <p>Same. — Complaint—Parly to Whom Notice is Owen. — Sufficiency of Averment as to. — In an action to enforce a mechanic’s lien against a church corporation, an averment in the complaint “ that during the time the plaintiff was delivering and furnishing the bricks for said purpose, he notified the defendant corporation that he was furnishing the bricks for said structure,” is sufficient without averring to what officer or person representing the corporation the notice was given. It is the statement of a fact and not of a legal conclusion.</p> <p>Same. — Description of Property in Notice. — A description of the property in the recorded notice is sufficient which describes it as follows: “ Your church property at the southeast corner of Alabama street and Merrill « street, in the city of Indianapolis, Indiana, as well as upon the new church building (house) recently erected thereon by you,” although the numbers of the lots and the name of the county are not given. The complaint supplemented this description by averments making it full and specific. See Elliott’s Supp., section 1690.</p>

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

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

<p>Parties. — Foreclosure of Mortgage. — Death of Mortgagor. — Supplemental Complaint. — Parties.—In an action to foreclose a mortgage, if the mortgagor, or the owner of the equity of redemption, die, his administrator should be made a party defendant, if- he enters no appearance, by a supplemental complaint and service of process.</p> <p>Same. — Appearance.—Amending Complaint. — Demurrer by Administrator. — In ’ such an instance an appearance does not relieve the plaintiff from filing such additional pleading. The order-book entries, making the administrator a party, can not be resorted to in aid of the original complaint ; and a demurrer by the administrator to the complaint for want of facts is well taken.</p> <p>Same. — Foreclosure of Mortgage.— Wife of Owner of Equity of Redemption.— Death of Husband. — The wife of the owner of the equity of redemption is a proper party in the foreclosure of a mortgage; and when he dies she is a necessary party. If the land has been conveyed by the mortgagor, then the wife of the grantee is a proper party defendant.</p> <p>Demurrer. — Order-Book Entry, Varying Contents of. — The order-book entry of the filing of a demurrer can not control the contents of the demurrer.</p> <p>Estates. — Action by Legatee Concerning Assets of Estate, Can not Maintain. —A legatee, whether his legacy be specific, general or residuary, has no right, until the estate is settled, without the consent of the executor, to withdraw a portion of the assets of the estate liable for the payment of the debts of the testator, except as provided by statute, and he can maintain no action to recover such assets from a third party.</p> <p>Practice.' — Striking Out Pleading. — Making Part of Record. — If part of a pleading is stricken out on motion, no error can be assigned thereon unless such part of the pleading is made a part of the record by a hill of exceptions.</p> <p>Same. — Overruling Motion to Strike Out not Error. — Overruling a motion to strike out a part of a pleading is not such an error as will reverse the case.</p> <p>Witness. — Competency of Mortgagee in Foreclosure Suit when Mortgagor is Dead. — In a suit to foreclose a mortgage, where the mortgagor is dead, the mortgagee is not a competent witness to any matter which occurred prior to the death of the mortgagor.</p> <p>Abatement. — Death of Mortgagor. — Continuing Action Against Administrator. — In a suit to foreclose a mortgage, if the mortgagor dies, the action does not abate, but his administrator may be brought in by supplemental complaint, and the action continued against the mortgagor’s estate. Sections 271, 2310, R. S. 1881.</p> <p>Appeal. — Foreclosure of Mortgage. — Administrator a Party. — In an action to foreclose a mortgage, where the mortgagor dies pending the action and his administrator is made a .party defendant, an appeal therefrom is taken under the civil code, and not under the decedent’s act.</p>

<p>Taxation. — Enjoining Collection of Taxes. — Part Valid. — Tender or Offer to Pay Must be Shoum — Where the complaint shows that part of the taxes the collection of which is sought to be enjoined are valid, and there is no offer or tender to pay them, the complaint can not withstand a demurrer for want of facts.</p>

<p>Constitutional Law. — Penalty for Obstruction of Highway, Validity of. — ■ A statute providing a penalty for the obstruction of a public highway, and also providing that the penalty shall be payable to the trustee of the township for the benefit of the public highways of the township, is not invalid because such penalty is not payable to the common school fund of the State.</p> <p>Pbactice. — Amendment of Oomplaint After Evidence Heard. — It is not error to allow an amendment to a complaint after the evidence is heard, even though such amendment has the effect to make a bad complaint a good one.</p> <p>Continuance. — Absent Witness. — Diligence Must be Shown by Parly Applying. —An affidavit which shows that the attorney of the party applying for a continuance, because of absent witnesses, has been diligent to secure their attendance, is not sufficient, unless it also shows that the party himself has been diligent to procure their attendance; and this is true where the affidavit for such continuance is made by the attorney.</p> <p>Pleading. — Action to Recover Penally. — Each Day a Separate Offence.' — Paragraphs. — In an action for the recovery of a penalty for an offence which is shown to be continuous, the penalty being fixed at so much for each day of its continuance, it is not necessary to declare in separate counts for each day’s penalty, but all may be grouped together in one count, covering the entire period.</p>

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

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

<p>Damages. — Ditch Assessment. — Appeal Bond. — Sufficiency of. — In an appeal from an assessment made against the land-owners along the main ditch, and also along the south arm thereof for the amount expended for repairs on the ditch, it is not necessary that the lands assessed from which the appeals are taken should be described in the appeal bonds, the appeals having been taken separately, nor need the bonds state whether the lands were assessed for repairs to the main ditch or to the south arm. It was proper to name the county surveyor as the obligee in the appeal bonds, although the assessments were made by a deputy surveyor.</p> <p>Same. — Right of County to Defend,. — Refusal to Remit. — County Surveyor.— Where appeals are taken from ditch assessments, the county being the party and the only party financially interested in the collection of these assessments, it is proper for the board of county commissioners to employ attorneys to appear and protect the interests of the county in said appeals, and it is error for the court to refuse to permit such attorneys to represent the county surveyor. Where, however, said attorneys did appear for the party who made the assessments, and continued the litigation, the error is not available.</p> <p>Same. — Burden of Proof. — In such appeals the burden of proof is upon the county surveyor, and it is not error to require him to open and close the case.</p> <p>.Same. — Board, of County Commissioners. — Power to Appoint Deputy Surveyor. . —Sufficiency of Appointment. — Collateral Attack. — The power to appoint a deputy to act in cases wherein the regular surveyor is interested is specially delegated to the board of county commissioners. When they have made such appointment, the presumption exists, at least upon a collateral attack, that the county surveyor was interested in a matter wherein he was required to act, and that the board had knowledge of the fact. It is not necessary to recite the grounds upon which a board of county commissioners proceeds in a matter which is within their jurisdiction. An order of appointment by a board of commissioners which recited that the board appointed “ A. E. as deputy surveyor for Fulton county, Indiana, in compliance with section 5952, R. S., 11th ■specification, section 140, R. S 1881,” was broad enough to include the making of assessments for ditch repairs, and sufficient to withstand a collateral attack.</p>

<p>Malicious Prosecution. — Excessive Damages.— When Verdict will not be Disturbed. — New Trial. — In an action for malicious prosecution which involves the question of compensation for an injury to character, a new trial will not be granted on the ground of excessive damages, unless they are so outrageous as to induce the belief that the jury acted from prejudice, partiality or corruption.</p> <p>Same.— Witness. — Testimony of in Criminal Cause. — Admissibility of in Action for Malicious Prosecution.- — Where one of the appellants in the cause was a witness, and testified at the trial of the appellee on the charge of embezzlement, it was proper for the appellee in his action to recover damages for malicious prosecution on account of said charge of embezzlement, to prove what the testimony of said appellant was on the criminal trial.</p> <p>Same. — Instructions to Jury. — An instruction in an action to recover damages for an alleged malicious prosecution, which stated, among other things, that the plaintiff before he could recover must prove by a preponderance of the evidence “ that the defendants, or such as are held liable, caused the arrest of the plaintiff', or were instrumental therein, or in some way voluntarily aided or abetted in the prosecution of the plaintiff,” is not objectionable on the ground that it assumes some of the defendants will be held liable, when taken in connection with a subsequent instruction which informed the jury that “ there can be no finding against any defendant who is not shown to have been connected with the instigation or carrying on of the prosecution.”</p> <p>Instructions to Jury. — Must be Considered Together. — Instructions given to a jury must be considered as a whole. If when taken together they fairly and correctly state the law, the cause will not be reversed, even if some of the instructions, considered alone, might seem incorrect.</p> <p>Verdict.— Weight of Evidence. — Where there is testimony which is susceptible of an interpretation that will sustain the verdict the same will not be disturbed.</p>

<p>.Heal Estate. — Conveyance.—Equitable Title. — Purchaser with Notice. — Exe- ' cvtion Creditor.— When not bona fide Purchaser. — A. executed a deed to B. for certain real estate on the 19th day of October, 1885. B. thereafter sold the land to C. and delivered the deed he had received from A. to C.’s agent, and the same,not having been recorded, was destroyed, and A. made a conveyance directlyto C. Subsequently A. executed another deed to B., reciting as a reason for so doing the loss or destruction of the prior deed. C. afterward conveyed the land to D.</p> <p>.Held, that D. acquired a good title to the land as against an.execution creditor whose claim rested upon a sheriff’s sale made on.a judgment rendered on the 26th day of February, 1886, against A. and others.</p> <p>Held, also, that at the time the judgment was rendered, A. had no estate or interest in the land upon which the judgment could fasten, and that B. was the equitable owner of the land, if not the legal owner, and that against a prior equitable title a judgment can'not prevail.</p> <p>Held, also, that C. being a bona fide purchaser in all that the term implies, her grantee acquired title even if he purchased with notice.</p> <p>Held, also, that an execution creditor who buys at his own sale is not a bona fide purchaser within the meaning of the law.</p> <p>Same. — Statute of Frauds.— When Creditor can not Take Advantage of. — A creditor can not take advantage of the statute of frauds to avoid a sale of lands made by the debtor, although the latter might have done so if he had elected.</p> <p>-Same. — Conveyance to Defraud Creditors. — Innocent Grantee. — Protection of.— Presumption of Good Faith. — If a conveyance is made with intent to defraud creditors, and the grantee does not participate in the fraud, and' pays a valuable consideration for the realty, his rights and the rights; of his grantees are secure against such creditors. The presumption is in favor of good faith, and unless overcome makes a prima facie case.</p> <p>Same.— Voluntary Return of Deed. — Title not Revested. — The voluntary return of a deed to the grantor for the avowed purpose of cancellation does not revest the grantor with title. Speer v. Speer, 7 Ind. 178, and Thompson v. Thompson, 9 Ind. 323, distinguished.</p>

<p>■Partnership. — Partner's Interest. — Sale of.— Promissory Note.— Set- Off.— Where one partner transfers all his right, title and interest in the assets of the firm, including the books and accounts of the partnership, to a continuing member of the firm, or another, and the outgoing member receives in payment of his interest the note of the purchaser, the maker of the note can not set off an account apparently due the firm from the member whose interest was transferred.</p> <p>Same. — A sale by one partner to a continuing member of the firm, or to another, in the absence of any special agreement to the contrary, carries with it the actual interest of such partner. The presumption is that the account of such partner with the firm was taken into account, and his interest in the partnership increased or diminished according to the state of his account, and that such selling partner, in the absence of a special agreement to that effect, is not liable to account to the purchaser for any sum which may be due from him to the firm, and, prima facie, such transfer cancels his account, in so far at least as the purchasing partner is concerned.</p>

<p>Practice. — Sustaining Demurrer. — Harmless Error.— Where a demurrer was sustained to a paragraph of answer, and all the evidence that could have been given to support said paragraph was admissible under other paragraphs, the error, if such it was, in sustaining the demurrer, is not an available error on appeal.</p> <p>Mortgage. — Money Advanced to Pay Off Liens. — Failure of Wife to Join in Mortgage. — Fights of Wife. — Section 2495, F. S. 1881, construed. — The defendant, in common with several others, owned a tract of land. He and his wife executed mortgages on his undivided interest to the plaintiff to secure the indebtedness of the husband for an amount in excess of his said interest. The entire tract was heavily encumbered. The defendant acquired the interest of the others, upon the understanding that he was to assume and pay off the mortgages. The plaintiff agreed to furnish a sufficient amount of money to pay off and discharge all of said liens except those owned by himself. He did so, and the defendant executed a mortgage to the plaintiff on the entire tract for the money so paid by the plaintiff and for the amount of his own mortgages. The defendant’s wife refused to join in this mortgage.</p> <p>Held, that the mortgage executed to the plaintiff by the defendant represented the whole of the consideration paid by the defendant for the conveyance of the property to him, and that the plaintiff was as much entitled to the protection of section 2495, B S. 1881, which declares that although a wife do not join in a mortgage, giyen to secure the whole or any part of the purchase-money, she is not entitled to any interest as against the mortgagee, as he would haye been if he himself had been the vendor.</p> <p>Held, also, that the mortgage, in so far as it represented the money paid as purchase-money, was superior to any interest of the wife, but not as to the amount paid in extinguishing the mortgages executed by the husband upon his own interest.</p>

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

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

<p>Railroad. — Complaint.— Contributory Negligence. — Demwrrcr. — Motion to Make More Specific. — In an action to recover damages for personal injuries resulting in death, a general averment in the complaint that the party was without fault is sufficient, unless the facts specially pleaded clearly show that he was guilty of contributory negligence. Such an averment is sufficient to withstand a demurrer or a motion to make more specific.</p> <p>Same. — Construction of Track. — Duty as to. — Co-Employee.—If a railroad company so negligently constructs its tracks and side tracks, that cars occupying the main line of its track can not pass cars occupying the adjacent side track without, endangering the lives of the employees charged with the duty of moving such cars, its negligence is actionable. If one of its employees is, by reason thereof, killed or injured while in the discharge of his duty, and is himself without fault, and using due care, such company is liable to respond in damages. It was the duty of the company to contemplate that sooner or later cars might have to pass each other at each and every point on the two tracks. It. is no defence that those whose acts brought such ears into such dangerous proximity were co-employees with the one injured.</p> <p>Same. — Negligence.—Proof of Custom. — It was proper for the plaintiff to show that it was customary to cut moving trains at the station when the decedent was killed. As bearing on the question of negligence and tending in some degree to show whether or not the decedent was negligent, it was competent to prove that he was or was not doing his work in the usual and customary way.</p> <p>Same. — Instructions to Jury. — Prefatory Statement. — Contributory Negligence.— An instruction to the jury which fairly and tersely, states all of the material facts necessary to be established by the plaintiff to entitle him to recover is not objectionable on the ground that the jury might fail to make the necessary connection between the prefatory statement, “ If you shall find from the evidence,” and the propositions that follow. The defendant can not complain of a clause in said instruction which informed the jury that to entitle the plaintiff to recover the intestate must have been “ without any fault ór negligence on his part.”</p> <p>Instructions to Jury — When Court Should not Direct Verdict. — Where there is evidence tending to support the plaintiff on all material questions, it is proper for the court to refuse to instruct the jury to return a verdict in favor of-the defendant.</p> <p>Same. — Correctness of. — See Opinion. — For correctness of instructions on some of the more material points involved in the case, see latter part of opinion.</p> <p>Verdict.— When mil not be Disturbed. — Where there is evidence tending to sustain the verdict on all material points, it will not be disturbed.</p>

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

<p>Mabbied Woman. — Promissory Note.— Suretyship. — Innocent Purchaser.— Under section 5119, B. S. 1881, a note made payable in bank, executed by a married woman as surety, is void as to her, in the hands of an innocent purchaser, for value, acquired in the regular course of business. She alone can claim the benefit of the statute.</p> <p>Same. — Estoppel in Pais.— What is not. — While a married woman is bound under our statute by an estoppel in pais, like any other person, the form of the contract (she signed the note apparently as principal) does not operate as such an estoppel where there was no statement or rep-' resentation of any kind to indicate that she was the principal on the note.-</p> <p>Same. — Consideration Paid to Husband. — Suretyship of Wife.- — -Tim fact that the husband did, and the wife did not, receive the consideration for which the note was executed, conclusively establishes the proposition that she was a surety and not the principal in the note, notwithstanding the form of the contract. ■</p> <p>McBbide, J., dissents.</p>

<p>Injunction. — Natural Gas. — Sinking Well. — ■ Use of Explosives. — Adjoining Land-Owner. — A land-owner has the legal right to sink a well on his own land, and draw therefrom all the gas that may naturally flow to it, although by so doing he may dimmish the supply of an adjoining land-owner, and an injunction will not lie to prevent the use of an explosive in “ shooting ” a well on the ground that it will increase the flow of gas to the injury of an adjoining land-owner.</p> <p>Same. — If parties sink a gas well in the center of a thickly populated city where they can not collect the necessary quantity of nitro-glycerine to “shoot” it, without endangering the property and lives of those who have no connection with their operations, they must be content with such flow of gas as can be obtained without such “ shooting,” and an injunction will lie against them to prevent the accumulation or use of said explosive.</p> <p>Same. — Act Complained of a Crime. — The application for such an injunction can not be defeated, because the accumulation of nitro-glycerine within the corporate limits of a town or city is a crime. A private citizen may maintain an action for a public wrong, if he suffers an injury peculiar to himself, and not sustained by the general public.</p> <p>Same. — Temporary.— What Sufficient to Authorize. — To authorize a court to grant a temporary injunction it is not necessary that a case should be made that would entitle the plaintiff to relief at all events at the hearing. It is sufficient if the court find upon the pleadings and evidence a case which makes the transaction a proper subject for investigation in a court of equity.</p>

<p>Dbainage — Act of March 9th, 1875. — Lien of Assessment Under. — Priority of Mortgage Lien. — Under the act of March 9th, 1875 (Acts of 1875, p. 97), an assessment for the construction of a ditch is not a lien upon the land benefited superior to a prior mortgage thereon. The act, indeed, contains no provision making the assessment a lien upon the land benefited.</p>

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

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

<p>Practice. — Answer.—Reply in General Denial. — Proof Under. — The plaintiff, under a reply of general denial, is not confined to negative proof in denial of the facts stated in the answer, but may introduce proof of facts independent of those alleged in the answer, but which are inconsistent therewith, and tend to meet and break down the defence.</p> <p>Supreme Court.— Weight of Evidence. — Where there is some evidence upon every material question necessary to sustain the finding of the court, the same will not be disturbed on appeal.</p>

<p>Contempt. — Newspapeb Publication. — Reflection Upon Court or Grand Jury.— The publication of an article reflecting upon the grand jury, tending to bring them into disrepute, and to embarrass and interrupt a legitimate investigation by them as to the commission of a crime at any time during their session, is subject to the cognizance of the court, and the author thereof is liable for contempt.</p> <p>Same. — Answer Purging of.' — Language not per se Libellous. — When the language used in a newspaper article is not per se libellous, and only becomes so by the use of innuendoes, and is fairly susceptible of an innocent meaning, in so far as any reflection upon the court is concerned, and the defendant answers under oath that he used it in a sense not libellous, and declares he intended no imputation upon the court, either impugning the motives or integrity of the judge, or to embarrass the administration of justice, his answer must be taken as conclusive. The disclaimer also applies to the grand jury. The judge himself can not assert facts existing in his own mind as against the answer. If he believes the facts stated are untrue, that issue may be tried, and the judge can testify as to the facts within his knowledge in a proper prosecution.</p> <p>Same. — Language per se Libellous. — Insufficiency of Answer. — If a newspaper article is per se libellous, making a direct charge against the court or jury, admitting of but one fair and reasonable construction, and requiring no innuendo to apply its meaning to the court, the publisher of the article can not escape liability for contempt by admitting the publication of the article, but denying that he intended the plain and mistakable meaning which the language used conveys.</p> <p>Same.— What Necessary to Constitute. — To constitute a contempt there must be an act coupled with an intended disrespect to or defiance of the court.</p>

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

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

<p>Geaved Boad. — Board of County Commissioners. — Appeal to Circuit Court.— In the matter of the establishment of a free gravel road, an appeal can only he taken to the circuit court from a final order of the board of county commissioners.</p>

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

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

<p>Constitutional Law. — Statute Requiring Trustees to be Residents of State Invalid. — The statute (section 2988, B. S. 1881) requiring a trustee of any person, association or corporation to be a bona fide resident of the State of Indiana is unconstitutional, being in conflict with article 4, section 2, and the Fourteenth Amendment of the Constitution of the United States.</p>

<p>Slander and Libel. — Evidence of Defendant’s Pecuniary Condition. — In actions for slander, evidence of the defendant’s pecuniary condition is competent.</p> <p>Same. — In an action of slander or libel, for imputing the commission of a crime to the plaintiff, a plea of justification must be proved beyond a reasonable doubt.</p> <p>Practice. — Repeating Instructions Unnecessarily. — It is error for the court to repeat in the charge rules of law, though applicable to the case, in such form as to give to them such an undue prominence that they may mislead the jury. *</p> <p>Same. — Contradictory Instructions. — The court can not by contradictory instructions leave to the jury the duty of determining which of the two lines of instructions shall be followed, or what rule of law shall control the case.</p> <p>Same. — Objections to Evidence. — Specific objections to evidence must be stated to the trial court, and the objections as stated must be brought into the record on appeal.</p> <p>Criminal Law. — Embezzlement.—Intent to Defraud. — Evil Intent. — To constitute the crime of embezzlement of money there must be, either at the time of receiving the money or at some subsequent time, some element of fraud or evil intention; for if there be no fraudulent purpose or evil intention there is no crime.</p> <p>Same. — Intention to Return Money Taken. — If there is a wilful and known wrongful taking, use or appropriation of the employer’s money by an agent, the criminality of the act is not removed by the intention to make restitution of the money.</p> <p>Same. — No Intent to Deprive Owner of Money or Mis Property. — It is not essential to the crime of embezzlement that at the time the wrongful act is perpetrated there should be an intention to deprive the owner of his property.</p>

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

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

<p>Master and Servant. — Action for Damages. — Injury of Infant. — Contributory Negligence. — Danger Known to Defendant. — Complaint.—In an action by a minor, by his next friend, to recover damages occasioned by a personal injury, the complaint alleged that the appellee, who was an infant, without knowledge or experience of the dangerous prpperties of * hot slag or cinder, was employed by the appellant to carry and wheel away from a furnace, and dump upon adjacent ground, a part of which was covered with water, hot slag; that the appellant, with knowledge that such slag was liable to explode and injure the appellee, if it came in contact with damp earth or water, negligently failed to instruct the appellee as to his duties, or to warn him of the danger of handling such slag, or to give him any instructions which would enable him to safely perform his duties ; that the appellee was injured by the hot slag coming in contact with a small quantity of water which had collected on the surface of the ground at the point where he was directed to deposit the slag.</p> <p>Held, that from the allegations concerning the ignorance of the appellee there was nothing in the complaint from which it could be averred that he was guilty of negligence.</p> <p>Held, also, that as the place where the appellee was directed to deposit the hot slag is alleged to have been covered by water, the presumption is that such fact was known to the appellant.</p> <p>Same.; — Existence of Dangers. — Duty of Master to Warn Infant. — Where a master takes an infant into his service, the law imposes upon him the duty of explaining to him fully the hazard and dangers connected with the business, and of instructing him how to avoid them.</p> <p>Same. — Hiring by Independent Contractor. — Effect of. — The fact that the appellee was not independent of the appellant in so far as that it might require his discharge for failure to do his duty while at work, did not necessarily make him the servant of the appellant when he was employed by an independent contractor. To make him such there must have been a contract between him and the appellant, either express or implied.</p> <p>Contract. — Independent Contractor. — Negligence.—Where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is left.</p>

<p>Public Officer. — Bight to make Contracts with Ministerial Officers. — Officers controlling the affairs of a public corporation may contract with ministerial officers of the corporation, unless such contracts are prohibited by statute.</p> <p>County Commissioners. — Allowances by. — Construing the acts of 1879 and 1883 together, concerning allowances by boards of county commissioners, the plain conclusion required is that where there is an “ indispensable public necessity ” there is authority of law for making a contract with a county officer.</p> <p>Same. — Review of Decision. — Sow Effected. — In order to review the decision of a board of county commissioners as to the existence of an “indispensable public necessity,” there must be a pleading properly alleging facts showing that the finding of the existence of a public necessity was wrong.</p> <p>Same. — Contract with Officer of County.— Validity of. — Where a board of county commissioners contracted with the county clerk at a stipulated price (the record showing “ an indispensable necessity ” for so doing) to index and re-arrange certain papers and files in his office, he. may recover against the county on the contract. The claim is not for extra compensation, nor for official services nor for added official duties, but solely and exclusively for compensation due under a special contract, which the board had the same right to make with the county clerk as with a private individual. Board, etc., v. Barnes, 123 Ind. 403, and Board, etc., v. Johnson, 127 Ind. 238, distinguished.</p> <p>Same. — Practice.— Contract Spread of Record. — Admission Implying. — Where the record contains an express admission that a contract was entered into between the parties as alleged in the complaint, the admission implies that there was a contract properly spread of record, and makes unavailing the objection that it is not shown that the contract was spread upon the record of the board of county commissioners as the statute requires.</p>

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

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

<p>County Superintendent. — Election of. — Township Trustees.— Quorum.— Members Present Declining to Vote. — Where the township trustees of a county, six in number, met on the day appointed by statute for them to do so, to elect a county superintendent, and after perfecting their organization, proceeded to ballot for such officer, and after a number of ballots had been taken, without an election, three of the trustees, after protesting against further balloting, stepped from the part of the room occupied by them and mingled with the spectators, and thereafter another ballot was taken, said withdrawing trustees still remaining in the room but not voting, and the other three trustees cast their votes for the appellee, he was legally elected to the office of county superintendent if the requirements of the law were complied with in other particulars. There was no such absence of the three trustees as can be said to have broken a quorum. Being present it was their duty to act. The presiding officer had a right to treat them as part of the board, to treat them as present and failing or refusing to vote.</p> <p>Same. — Election of After Midnight — Validity of. — Where the township trustees of a county met on the first Monday of June, as required by section 4424, R. S. 1881, to elect a county superintendent, and organized and proceeded to the election, they had the right, and it was their duty to complete the work for which they were convened, and the fact that they were unahle to complete their work before the hour of twelve o’clock at night did not invalidate their acts done after that hour.</p>

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

<p>Injunction. — Natural Gas. — “Shooting” Well.— Use of Explosives. — An injunction will lie to prevent the “ shooting” of a gas well and the accumulation of nitro-glycerine for that purpose, when it will endanger the dwelling-house of the plaintiff, and the lives of himself and family.</p> <p>SAME. — Increasing Flow of Gas. — Adjoining Land-Owner. — A party has the right to explode nitro-glycerine in his well for the purpose of increasing the flgw of gas, and an injunction will not lie to prevent his doing so, on ’the ground that thereby gas will be drawn from the plaintiff’s land into the defendant’s well.</p> <p>Pleading. — Complaint.—Construction of.— What Court Will Look to. — In construing a complaint, and in determining the rights of the parties thereunder the court will look to the nature of the afcts alleged, and if such acts are lawful within themselves, the use of such epithets as “ unlawfully,” “maliciously” and “wantonly,” in the complaint, can not make them unlawful.</p>

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

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

<p>Negligence.— When Question of Contributory Negligence is for Jury. — Where the circumstances of a particular case are such as to warrant different inferences, so that one impartial and sensible man may draw the inference and conclusion that the injured person was guilty of contributory negligence, while another man, equally impartial and sensible, may draw a different conclusion, the court will not decide as a matter of law the question of contributory negligence, but will leave it to the jury under proper instructions.</p> <p>Railroads. — Rate of Speed. — A railway company may not run its trains in a populous city at the same rapid rate of speed it may in the country and escape liability on tbe ground that it'may run such trains at any rate of speed it chooses.</p> <p>Same. — Ordinance Regulating the Speed of Trains, Validity of. — An ordinance of a city requiring all trains within the limits to be run at a speed not over four miles an hour, if its enactment is authorized by a statute, is valid, and evidence will not be heard that such ordinance is unreasonable, and therefore void.</p> <p>Same. — Failure to Enforce Ordinance. — A railway company violating an ordinance by running its trains at a rate faster than is allowed by the terms of such ordinance, can not set up as a defense that the officers and citizens of the city have never enforced such ordinance, although it has been enacted many years before.</p> <p>Same. — Person Approaching Track, When Should Look for Coming Trains.— The court will not undertake to say to the jury just how many feet from a railroad track a person approaching a crossing should look for approaching trains before attempting to cross such track, but will leave that question to the jury.</p> <p>Same. — Requirement of Person Approaching Crossing. — All the law requires of a person about to cross a railroad track at a public highway, is to use ordinary care to avoid injury!</p> <p>Same. — Company Organized Under Special Charter. — No Right to Regulate Speed in Cities or. Towns Reserved. — The speed of the trains of a railway company organized under a special law of the State may be regulated by a municipal ordinance, enacted in pursuance of a general statute, although no reservation to regulate the speed of such company’s trains is inserted in such special charter.</p> <p>Constitutional Law. — Police Power. — Slate Depriving Itself of Right to Exercise. — A State can not deprive itself of the right to exercise the police power, and such an attempt, if made, is only a mere license, which may be revoked.</p>

<p>Injunction.— Restraining Order Issued by Judge Absent from, State.— A judge of this State can not sit in chambers in the State of Michigan, and issue a valid restraining order. Where an appeal, however, was not taken until after a trial of the cause on its merits, and a final judgment in the appellee’s favor which vacated the temporary injunction, the error, though properly saved by the appellant, was not an available error.</p> <p>Easement. — Pleading.—Description of Land. — Exhibits.—In a suit to establish a right to the easement of a right of way across certain lands, the complaint is defective if it does not contain a description of the land over which the easement is claimed. Reference can not be had to exhibits filed with the complaint to make good such an omission, such exhibits being in no sense copies of the writing forming the basis of the pleading.</p>

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

<p>Drainage.— Who May Sue on Assessments. — A commissioner of drainage, in charge of the construction of a ditch, may sue for and collect so much of the assesment made for the construction of such ditch before the same was referred to him as may be necessary to its construction, and he is not restricted to the assessment made by himself.</p>

<p>Election. — Illegal Voter. — Contest.— Weight of Evidence. — Where the question involved in a contested election case is one of fact respecting the validity of certain votes cast by persons whose qualifications to vote are assailed, the Supreme Court will not pass upon the weight of the evidence, but will affirm the decision of the lower court.</p>

<p>Eminent Domain. — Scope of Power. — Definition.—The power to exercise the right of eminent domain embraces all cases where, by the authority of the State and for the public good, the property of the individual is taken, without his consent, for the purpose of being devoted to some particular case, either by the State, in its sovereign capacity, or by a corporation, public or private, or by a private citizen to whom such right has been granted by the State.</p> <p>Same.' — Limitations Upon Power of. — Tender.—The right of eminent domain is limited only by the Constitution; and the only limitation in this State is that no man’s property shall be taken by law without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.</p> <p>Same.— When May be Exercised. — Supervisory Power of Courts. — The right of eminent domain is to be exercised only where public necessity or convenience requires it; but where such necessity or convenience is declared by the representative of the sovereign — the Legislature — courts can not question the wisdom of such declaration.</p> <p>Same. — Time, Manner and Occasion of Exercise of. — The time, manner and occasion of the exercise of the right of eminent domain are wholly in the control and discretion of the Legislature except as it is-restrained by the Constitution of the State.</p> <p>Same. — To Whom Eight is Granted. — The exercise of the power of eminent domain being an attribute of sovereignty, the sovereign may grant it to whomsoever it may think proper, and deny it to all others.</p> <p>Same. — Payment of Damages on Appeal. — Entry on Land Condemned Pending Appeal.— Validity of Statute. — A statute allowing an entry upon the land pending appeal from the assessment of damages, on payment to the clerk of the court of the amount of the damage assessed for the benefit of the land-owner, is valid, such payment being equivalent to a tender; but a statute directing the clerk to hold such money until the case on appeal is determined is unconstitutional.</p> <p>Same — Payment of Damages Under Protest. — A payment under protest does not render the payment or a tender invalid, the protest being a nullity.</p> <p>Naturae Gas. — Entry on Land Pending Appeal. — Act Valid. — That part of the act of the Legislature (Acts 1889, p. 22) authorizing natural gas companies in appropriating land for a right of way, to cause the assessment of damages to be made, to appeal therefrom, and, on paying to the clerk of the court the amount of damages assessed, to enter on the land appropriated pending the appeal, is valid.</p> <p>Same.— Validity of Act, Eestrictions on Citizens of this Slate. — The act of 1889, authorizing citizens or corporations of this State to exercise the right of eminent domain, is not invalid on the ground that it does not authorize citizens or corporations of other States to exercise such right.</p> <p>Same. — Local Law, is Not. — The natural gas law of 1889 is not subject to the objection that it is local or special.</p> <p>Constitutional Law. — General Law, What is.— Uniformity of • Operation. —A law which applies generally to a particular class of cases is not a local or special law. The Constitution does not require that the operation of a law shall be uniform, other than that the operation shall be the same in all parts of the State under the same circumstances.</p>

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

<p>Damages. — Judgment.—Collateral Attack. — Demurrer.—In a suit on a guardian’s bond alleging damages because of the negligence of the guardian in the discharge of his duty in instituting and prosecuting a suit against appellant, as next friend and guardian of his ward, in which action appellant was interested and was then a ward of said guardian, the complaint alleged that the guardian failed to employ counsel to defend the rights of said appellant, and that but for said breach of duty and neglect, said appellant would not have been damaged therein, and that the judgment rendered against said appellant, as a result of said breach of duty on the part of said guardian, was erroneous. A demurrer to the complaint was sustained.</p> <p>Held, that the attack upon the decree being made in a suit upon a guardian’s bond is necessarily collateral, and to be successful facts must be pleaded showing that the decree is absolutely void.</p> <p>Held, also, that as the court rendering the judgment attacked had jurisdiction of the subject-matter and of the parties, and the decree was such as might have been rendered in such a case, the decree is binding upon ail the parties to it until set aside by a direct proceeding brought for that purpose.</p> <p>Held, als'o, that as against a collateral attack a judgment will be conclusively presumed to be correct, and averments in the complaint that'appellant’s rights were greater or different from what they were then adjudged to be, must be disregarded as in conflict with the finding and judgment of the court.</p> <p>Held, also, that in so far as this proceeding is concerned, it will be presumed that, notwithstanding a failure on the part of the guardian in the performance of his duty, she suffered no loss by reason of said neglect, and that the court meted out justice to appellant.</p> <p>Held, also, that the complaint does not state a good cause of action, and that the demurrer was rightly sustained.</p>

<p>Evidence. — Bill of Fhiidence— Use of to Prove Testimony of a Deceased Witness at Former Trial. — A witness’ testimony incorporated in a bill of exceptions for the purpose of an appeal is not admissible evidence on a second trial after the case has been reversed and the witness is dead, unless it is first shown that the testimony of such witness therein contained is a true statement of his evidence.</p> <p>Bill oe Exceptions.— Verity. — When Imports. — Object.—A bill of exceptions imports absolute verity only for the purpose of an appeal of the cause in which it was filed, and is made for no other purpose.</p>

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

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

<p>Tax Commissioners. — State Board. — Power to Punish for Contempt. — So much of the tax law of 1889, as attempts to confer upon the State Board of Tax Commissioners power to fine and imprison for contempt is unconstitutional.</p> <p>Constitutional Law. — Independence of the Three Departments of State. — The power of the three great departments of the State are not merely equal, but they are exclusive in respect to the duties assigned to each, and they are absolutely independent of each other.</p> <p>Contempt. — Power to Punish for, Who May Exercise. — Only the courts and the General Assembly can punish for contempt; and the power to do so can not be conferred upon any other official or board of officials.</p> <p>General Assembly. — Delegation of Power. — The General Assembly can not delegate its law-making power to any person or body.</p>

<p>Habeas Corpus. — For sufficiency of petition see opinion.</p> <p>Deposition. — Seal of Notary. — Clerk’s Certificate. — When a notary public in a foreign State, taking a deposition, omitted his seal from the certificate, but the clerk of the county, by a proper certificate, attested to the official.character and signature of the notary, there is no cause for suppressing the deposition.</p> <p>Costs. — Bond for. — In law, prima facie, the domicil of the husband is the domicil of the wife, and when the husband makes a motion to require the wife to give a non-resident’s bond, and makes no proof of her non-residence, but relies upon the averments of the complaint to show that fact, the husband being a resident of this State, the wife could not be required to give a bond for costs in an action against her husband.</p>

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

<p>Contbact. — Subscription to Secure Removal of Manufactory. — Conditions Precedent. — -Recovery of Money Paid. — Performance of Agreement. — Citizens of Plymouth were negotiating with an electric light company to move its business of manufacturing incandescent lights to such city, and the company wrote that it was “not expedient to” do so, but added: “ We, however, feel that we are under obligations to recognize your efforts, and we will, however, move all the manufactory of the Jenney Arc Lamps and Dynamos from Fort Wayne to Plymouth on condition of you giving our company ten acres of ground suitably located for our works, and $15,000 in cash, to be invested in buildings and machinery on said grounds, and will take $115,000 of the capital stock of our company,” paying therefor in the following manner: 25 per cent, cash on - a date given, and the remainder in three equal installments- on dates named. Three days after, the agents of such citizens called on the company and asked for an invoice of its property, and to investigate its financial condition, but the officers thereof said it was impracticable to do so then, owing to the state of their business, and in lieu thereof the company executed the following writing: “We will guarantee that our invoice will show a surplus of $300,000 of good assets over and above our liabilities, counting patents and good will at $100,000 on April 1, 1888. This guarantee is made because the company has not invoiced this year, and to satisfy you that we will not declare any dividend that will impair the assets below the sum as shown in the invoice, of which we give you a copy, dated January, 1887, and that we will in addition change our letter of March 24 [quoted above] to conform to your subscription to stock, $115,000 and bonus of $15,000, which is that the $15,000 is to be paid within ten days, and 25 per cent, of stock so soon as we commence moving machinery to Plymouth, and 25 per cent, every three mfmths thereafter until paid.” The propositions in these two letters were accepted by the citizens, and the company was informed that they had “raised the proper amounts,” and that they would fully comply with the terms of the propositions. Subsequently the plaintiffs, who were citizens of Plymouth, subscribed, for the purpose of inducing the company to bring its “factory” to the city, fifteen thousand dollars; they and others also subscribed for stock of the company amounting to $115,000, the money to be paid in installments of 25 per cent, every three months, “ the first installment to be paid when said company shall commence removing the machinery of their arc light manufacturing plant to the city of Plymouth.” Both of these subscriptions were turned over and accepted by the company. A tract of ten acres was also conveyed to it, upon which it erected a shop at a cost of $11,000, and placed a boiler, or engine, and some other machinery, therein, and then called upon the stockholders for the payment of 25 per cent, of their subscriptions. Payment was refused, and suit brought to recover back the $15,000, on the ground that the company had not complied with its contract.</p> <p>Held, that the persons who subscribed the $15,000, the persons who subscribed for the stock, and the donators of the land were all acting together in a common enterprise, and their promise and acts together constituted the consideration for the promise to remove the manufacture to Plymouth.'</p> <p>Held, that the failure of the company to make the invoice was a breach of contract.</p> <p>Held, that the averment that the company had never “ moved all or any part of the manufacture of Jenney Arc Lamps and Dynamos from Fort Wayne to said city of Plymouth, nor did said company even begin the removal thereof,” was sufficient to show a non-compliance with the contract on the part of the company, and to excuse the payment of the subscriptions or the tender of the amount thereof.</p> <p>Held, that, construing all the writings together, the machinery referred to was the machinery of the manufactory at Fort Wayne.</p> <p>Held, that the condition on the part of the company could only be complied with by a bona fide commencement of the removal of the machinery actually belonging to and used in its business at-Fort Wayne; and until a commencement, or a beginning, of this character was made, there was nothing due on the stock subscriptions.</p> <p>Held, that the erection of the building was not in any sense or degree the rendition by the company of any part of the consideration.</p> <p>Held, further, that the invoice was to he furnished within a reasonable time; and to show what was such a reasonable time it was competent to show what the directors of the company said, when they gave the guaranty, about the time when it would be practicable and convenient for them to make the invoice.</p>

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

<p>Practice. — Answer.—Filing During Trial. — As to whether an answer should be permitted to be filed in a cause during trial is a matter of discretion with the court, and can only be taken advantage of when there is an abuse of discretion.</p> <p>Juey. — Filing Pleadings, After Swearing of. — Besmearing of.— Unavailable Frror on Second Trial. — Where pleadings are filed in a cause, after the jury have been sworn to try said cause, and the jury is not resworn after filing said pleadings, and there is a second trial of said cause, the failure to reswear the jury in the first trial is not error to be taken advantage of in the second.</p>

<p>Practice. — Error.—Improper Assignment of. — Motion for New Trial. — Error can only be assigned on a question that was presented and ruled upon by the court below, and where a motion for a new trial in the court below was to the whole cause, and the assignment of error was in the ruling of the court “ in overruling appellant’s motion for a new trial on the cross-complaint,” there is no question presented for the decision of this court on appeal.</p>

<p>Master and Servant. — Action for Damages. — Railroad.—Complaint.—Contributory Negligence. — In an action by the plaintiff against a railroad company for damages for the alleged negligent killing of the decedent, a complaint is not objectionable on the ground that its specific averments show the decedent to have been guilty of contributory negligence when it avers that the decedent was required to perform a service outside of the line of his employment, and at a place other than that provided for the performance of his regular and, ordinary duties; that its performance would subject him to great danger unless certain precautions were observed in the placing of signal flags, and that he believed the proper precaution had been observed, but which does not aver that the decedent made a personal investigation to ascertain if the proper signals were in fact displayed, and the place in which he was directed to work, thereby made safe.</p> <p>Same. — Risks Assumed by Servant. —A servant impliedly assumes all of the ordinary and usual risks incident to his service, so far as they are known to him, or so far as one of his age and experience ought, in the exercise of ordinary care, to he able to discern them, even where the duties of the service are necessarily hazardous.</p> <p>Same.— Unusual Employment. — Increased Danger. — Special Care of Master.— Assumption as to. — If a master orders the servant to do some 'act outside of the duties ordinarily incident to his employment, and subjecting him to additional hazard, but which service could be made safe by special care upon the -part of the master, the servant has the right to assume that such special care will be taken, and the failure of the master to exercise such care will render him liable.</p> <p>-Same. — Hazardous Employment. — Duty of Servant. — In such a service, outside of the duties of his ordinary employment, the servant does not necessarily assume the additional hazard in undertaking to perform the unusual and extra service, even though the dangers attending it are obvious. If the apparent danger is such that a person of ordinary prudence, exercising that prudence, would refuse to encounter it, the employee proceeds at his peril. Otherwise, he may undertake the service, using care proportioned to the apparent increased risk, and if in so doing, he is injured by the employer’s fault, he may recover for the injury.</p> <p>Same, — Relative Duties of. — Instruction to Jury. — Where the plaintiff sought to recover damages against a railroad company for the alleged negligent killing of his decedent, who was ordered by the company’s general foreman to perform a service outside of his regular line of duty and subjecting him to additional danger, and which killing was averred to be due to the failure of the company to display proper signals, an instruction to the jury correctly stated the law, which informed them, in substance, that in the absence of any rules on the subject of signals or previous direction to the decedent on that subject, it would have been the duty of the foreman to have displayed the signals if by so doing the place where the decedent worked would have been rendered safe, and his failure to do so would be the failure of the company, but if the decedent knew that it was his duty to display the signals, and he neglected to do so, and by reason of such failure he was injured and killed, the company would not be liable.</p> <p>Hegligence. — Contributory.— Complaint. — Specific Averment. — A general averment in the complaint that the injured party was himself free from fault or negligence is sufficient, unless it is overcome by-the specific averment of other facts, showing notwithstanding the general averment that he was guilty of contributory negligence.</p>

<p>Pleading. — Defects Cured. — In an action on a note and for the foreclosure of a mortgage, facts which are not averred in the pleading, but which appear in copies of the note and mortgage therein set out, cure the deficiency of the paragraph.</p> <p>Same. — Complaint.—Sufficiency of Demurrer. — A complaint which states an immaterial fact is not bad on demurrer if it also states a cause of action for some relief.</p> <p>Married Woman. — Estoppel.—Suretyship.—Representations. —When a married woman represents that a loan, which is secured by mortgage on her lands, is for her own use, she will be estopped, as against one who in good faith has contracted with her in reliance upon her statements, from asserting that she is a surety, and not the principal in the transaction.</p>

<p>Fraudulent Conveyance. — Special Finding. — Silence of as to Other Property. —Where, in a suit to set aside an alleged fraudulent conveyance of land, the special finding of facts failed to disclose that the grantor had no property other than the said land out of which the debt sued for might be made either at the time of the conveyance or from that time to the time suit was brought, a judgment setting aside the conveyance was erroneous. The finding being silent upon these material facts, it stands as if such facts were not proven.</p> <p>Special Finding. — Cero not he Amended After Judgment. — A special finding can not be amended and defects in the same supplied on motion of one of the parties to a suit after the rendition of the judgment.</p>

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

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

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

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

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

<p>Trespass. — Tortious Entry upon Lands. — Statute of Limitations. — Change of Ownership. — Railroad.—An action for damages for a tortious entry upon lands by a railroad company must be brought within six years after the cause of action has accrued. The action will not lie where there has been a change of ownership since the original trespass, and suit was brought more than six years after the commission of the trespass, but less than six years after the defendant succeeded in ownership to the original trespasser. Section 292, it. S. 1881.</p>

<p>Negligence. — Contributory.—Railroad.—Infant.—Improper Grade at Crossing. — In an action against a railroad company to recover damages for personal injuries alleged to have been sustained by the plaintiff, by reason 'of being thrown out of a vehicle while crossing the defendant’s • track, at a highway or street crossing where the grade of the railroad had been constructed and maintained at a much higher grade than that of the highway, the fact that the injured party was an infant, and was driving the team at the time of the accident, does not of itself establish contributory negligence.</p> <p>SAME. — Synopsis of Evidence. — The evidence fails to establish contributory negligence when it shows that the horses were gentle and docile ; that the injured party, a girl of twelve, had driven them together a number of times within a short time previous to the accident; that she had driven in the vicinity of the railroads and cars, and across railroads; that the horses were not afraid of or liable to be frightened by the cars, and that she would have been able to have stopped them at the time of the accident if the railroad had been properly constructed at the crossing.</p> <p>Raileoad. — Crossing Highway. — Duty to Restore to Previous Condition. — Failure to do so. — Liability for Damages. — It is theduty of arailroad company upon building its railroad across a highway, to restore the highway as nearly as possible to its previous condition, and failing to do so the company is liable for damages sustained on account of injuries received by reason of the unsafe condition in which it was left, provided the injured party used care commensurate with the apparent danger.</p>

<p>Criminal Law. — Abortion.—Sufficiency of Indictment. — Averment as to Intent. — In an indictment for criminal abortion, charging that the defendant feloniously, unlawfully and wilfully employed an instrument in and upon the body and womb of a pregnant woman, with intent to produce a miscarriage, etc., the allegation “ feloniously and unlawfully ” applies to the intent with which the instrument was used, as well as to the use of the instrument itself.</p> <p>Venue. — Change of.- — Ruling Upon Application for. — Bill of Exceptions. — No question is presented upon the ruling of the court denying a change of venue when there is no bill of exceptions in the record containing the affidavits, rulings or exceptions.</p> <p>Instructions to Jury. — Mow Considered when Evidence not in Record.— When the evidence is not in the record, instructions given by the court can not be regarded as erroneous if they can be considered as correct upon any state of facts admissible under the issues, and instructions requested and refused will be presumed to have been refused because not applicable to the facts of the case.</p> <p>Same. — Evidence Concerning Cood Character. — Criminal Prosecution. — Instructions to the jury in a criminal prosecution are erroneous which declare that if the jury find from the evidence, “ independent of the evidence of good character,” that there is a reasonable doubt of guilt then they should acquit, but that they must convict if they find, independent of the evidence of good character, that he committed the crime. The effect of these instructions was to deprive the accused of the benefit of evidence of good character, which they assume had been given. Evidence of good character is to be considered in connection with other evidence upon the question of guilt or innocence, and it is not, as these instructions assert, to be considered apart from the other evidence.</p>

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

<p>Common Carriers. — Contract to Furnish Suitable Cars. — Liability for Breach of. — Sufficiency of Complaint. — Measure of Damages. — Demurrer.—In an action by a quarry company against a railway company for damages for breach of contract to furnish the quarry company with strong and amply sufficient and properly inspected cars for the transportation of the product of the quarry, the complaint alleged that the railway company had in its service a car inspector, whose duty it was to inspect the cars that were to be furnished the appellant; that a defective car was delivered to the plaintiff by the railway company ; that its defective condition might have been discovered by the railway company on proper inspection, but that it carelessly and negligently failed to inspect the car, and knowingly delivered it to the plaintiff without inspection ; that the plaintiff, relying upon the fact that the railway company had performed its duty to inspect, received from it said car, believing it to be safe and secure, the defect being hidden and unknown to the plaintiff; that the car, by reason of its defective condition and without any default on the part of the plaintiff, broke loose and ran down a grade, killing one of the plaintiff’s employees.</p> <p>Held, that the complaint stated a good cause of action against the railway company for breach of duty.</p> <p>Held, also, that as it can not be said that merely nominal damages are recoverable, the judgment sustaining the demurrer to the complaint must be reversed.</p> <p>Same. — Estoppel.—Contributory Negligence. — In such an action the defendant can not successfully demur to the complaint on the ground' that it does not show that the employee who was killed was free from contributory negligence, when the complaint avers that the railway company, through its general counsel and solicitor, represented the administrator of the deceased employee in an action brought by him against the quarry company for damages resulting from the death of his intestate, and that the railway company, after receiving notice from the quarry company of the pendency of the action, and that it would hold the railway company liable for all damages recovered, refused to defend said action, and the quarry company defended it at its own expense, and judgment was rendered against it. The conduct of the railway company in said behalf worked an estoppel, as a recovery could not have been had by the administrator if his intestate had been guilty of contributory negligence.</p> <p>Same. — Judgment in Former Action.— When Inoperative as an Estoppel. — The judgment recovered by the administrator against the quarry company did not preclude the latter from maintaining an action against the railway company for a breach of its duty as a carrier. The former action was for an injury resulting from a breach of duty owing by the quarry company to an employee, while the present action is brought for the breach of duty owing by a carrier to one for whom it had undertaken to carry goods or property. Further than this the railway company was not a party to the action in which the judgment was rendered, nor in privity with any of the parties in such a sense as to make the judgment available as an estoppel to the injury of the plaintiff.</p> <p>Pleading. — Complaint.—Averment as to Special Damages. — If a plaintiff states facts constituting a cause of action, an error in laying special damages does not invalidate the complaint when legal damages are recoverable.</p>

<p>Gbavel Roads. — Remonstrance Against Purchase of. — Order of County Commissioners Sustaining. — Appeal from. — Where the board of county commissioners, after the preliminary steps had been taken, looking to the. purchase of a gravel road, sustained a remonstrance filed before it, against completing the purchase, and entered an order to that effect, and an appeal was taken from such order to the circuit court by the company, the court did not err in overruling a motion filed by the appellant for an order on the board of commissioners to issue the bonds of the county to it in payment for its toll road. The remonstrance set forth that the appellant had no title to a portion of the road which-had been appraised, and the issue thus tendered remained untried and undetermined.</p> <p>Same. — Description of Road in Petition. — Sufficiency of. — -A petition filed with the board of county commissioners for an election on the question of purchasing a gravel road, need only contain such a description of the road as will enable the surveyors and viewers to find and identify the' road which is to be made the subject of purchase.</p> <p>Same. — Order of County Commissioners. — Right of Company to Appeal. — The. gravel road company, though not a party of record to the proceedings . before the board of commissioners, had such an interest in the matter involved as to authorize it to prosecute an appeal to the circuit court.</p> <p>Same. — Refusal to Purchase. — Final Judgment of County Cmnmissioners.— Where Appeal from IAes. — The final judgment of the board of commissioners refusing to purchase the gravel road involved judicial action from which an appeal would lie, and the only remedy to which the appellant was entitled was that of an appeal to the circuit court.</p> <p>Same. — Sufficiency of Petition. — Judgment of County Commissioners Upon.— Where the board of commissioners ordered an election to pass upon the question of the purchase of a gravel road, it necessarily passed upon the suificiency of the petition requesting such an election, and having the right to determine whether or not it would proceed on the petition, and having determined that it would proceed, its judgment was not void.</p> <p>County Commissioners. — Appeal from.— What Questions can be Considered, —Jurisdiction.—Upon appeal from the board of commissioners to the circuit court no questions can be considered except such as were presented and involved- in the commissioners’ court, save the question of jurisdiction.</p>

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

<p>Appellate Court. — Jurisdiction of. — Actual Amount in Controversy Determines. — In a suit for the recovery of money only, when an examination and comparison of the several paragraphs of complaint make it apparent that the cause of action stated or attempted to be stated in each grows out of the same transaction, and that the actual amount in controversy is three hundred dollars instead of twelve hundred dollars, the prima facie amount in controversy, the jurisdiction of the cause is in the Appellate Court.</p>

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

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

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