Volume 134 — Indiana Reports

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

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

<p>Negligence. — When a Question of Law. — Pacts Undisputed. — Bight of Defendant to Judgment of Court. — In an action for damages, where the facts asserted as negligence are found, and do not remain to be settled from conflicting evidence, and the inference therefrom is free from dispute, it is the right of the party charged with negligence to secure the judgment of the court as to whether such facts constitute actionable negligence.</p> <p>Bailkoad.' — Bight to Make Noise. — Limitation of.— Presumption of Knowledge by the Public of Such Bight. — Bailroad companies, in the operation of their trains, have the right to make all reasonable and usual noise incident thereto, whether occasioned by the escape of steam, rattling of cars, etc., and persons whose duties call them near a railroad must be presumed to know of this right, and to act with reference thereto. Where the law confers the right to use a dangerous element, the only restriction on such use is that it be not abused.</p>

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

<p>Estoppel. — Conveyance of Land by Wife to Husband to Avoid Statute Against Suretyship by Wife. — Mortgage on by Husband. — Bight of Wife to Avoid. — Acts and Declarations by Wife. — -Where the wife, to avoid the statute which prohibits the wife from becoming the surety of her husband, and for the purpose of enabling him to mortgage her land, conveyed her real estate, through a third person, to her husband, of all of which facts the mortgagee had knowledge, the wife can not be estopped, by anything which she could do or say, from avoiding the mortgage.</p>

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

<p>Cbiminal Law. — Murder.—Instructions to Jury. — Certainty.—Seasonable Doubt.— Unwarranted Inference. — Where, in a criminal action for murder in the first degree, the court, among other things, instructed the jury that ‘ ‘unless the evidence given in the cause satisfies you, beyond a reasonable doubt, that on or about the 7th day of April, 1890, at this county, the defendant did cut and stab said Silas Bell, thereby causing his death, as charged in the indictment, you will find the defendant not guilty,” the instruction contains a correct statement of the law, and, considering the instructions as a whole, the instruction can not be misleading as warranting an infer, ence that if it was proved beyond a reasonable doubt that the defendant did cut and stab Bell, thereby causing his death, he was guilty.</p> <p>Same. — Instructions to Jury. — Affirmatives and Negatives Pregnant.— Sule as to in Instructions. — The statement' of a proposition of law in an instruction to a jury in the form of an affirmative or negative pregnant is subject to all the objections as a rule of pleading, and is likely to be much more misleading and harmful.</p> <p>Same. — Instructions to Jury. — Affirmatives Pregnant. — Where, in a criminal action for murder, the court instructed the jury, among other things, that “ if there is any reasonable hypothesis consistent with the innocence of the defendant, which does not contradict any credible evidence given in the cause, you must acquit,” and further stated: “But if the defendant, being without fault, then honestly believed himself to be in imminent danger of great bodily harm, and could think of no less dangerous means of preventing such harm than the use of his knife, he would be justified in making such use of it as then appeared to him to be necessary,” such instructions are subject to the objection of being affirmatives pregnant, and must be deemed to have influenced the jury to the prejudice of the defendant, and, therefore, are erroneous.</p> <p>Same. — Instructions to Jury. — Self-Defence.—Homicide.—Where, in such case, the defendant prepared and asked the court to give the following instructions, which are, in substance: (1) Where a person, without fault, is violently assaulted in a place where he has a right to be, he may, without retreating, repel force by force, and if, in the reasonable exercise of self-defence, he kills his assailant, he is justifiable ; (2) if the defendant went to Asher’s house to administer to his wants as an invalid, having no ill will or quarrel with Bell, the deceased, and said Bell requested defendant to go out of the house with him, which he did, and then said Bell threatened to assault, and did assault and beat the defendant, without cause, and if the defendant, at the time, believed and had reason to believe that said Bell was about to, and would, do him great bodily harm, and in the reasonable defence of his person he inflicted wounds upon said Bell, of which he died, then defendant is not guilty, and should be acquitted; these instructions state the law correctly, and it was error for the court to refuse to give them.</p>

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

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

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

<p>Demurrer. — Joint and Several. — Sufficiency of. — Assignment of Errors. —Several Assignment. — Sufficiency.—A demurrer which is in the following form: “The plaintiff, fm. H. Funk, as guardian, demurs ; severally to the second, third, and fourth paragraphs of separate answer of said Rentchler and wife, for the reason,” etc., challenges ■ the sufficiency of each of such paragraphs of answer; and an as-i signment of error based on the overruling of such demurrers, which ' is as follows: “The court erred in overruling the demurrers to the second and fourth paragraphs of amended answer, and each of them,” is good not only as to the paragraphs jointly, but as to each separate paragraph.</p> <p>Guardian and Ward. — Insane Person. — Conveyance of Land by Ward.— Voidable Title. — Power of Guardian to Batify. — Power to Convey.— Where a person of unsound mind, previous to the adjudication of such unsoundness, and previous to the appointment of a guardian for such person, conveys land, the guardian of such person, afterwards appointed, can not, by any act of his, without being authorized by the proper court, convert such voidable title into a valid and unim- , peachable one. A guardian of an insane person being powerless to convey land of his ward, without an order of the proper court, he has not the power to do such acts, in ratification of a conveyance by his ward, as are the equivalent of a conveyance, for a guardian can not do, without the direction of the court, that which his ward was powerless to do before restoration to reason, so as to affect the title to his ward’s lands.</p> <p>Supreme Court Praotioe. — Points in Becord not Suggested by Counsel and not Perceived by the Court. — Behearing.—Where the record contains points which counsel do not suggest on the original hearing, and the court does not perceive, such points will not be considered on petition for a rehearing.</p> <p>Same. — Questions of Practice. — Sow Construed. — The Supreme Court does not favor an unduly rigid construction of questions of practice.</p>

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

<p>Criminal Law. — Arson.—Indictment.—Sufficiency to Withstand Motion in Arrest of Judgment. — An indictment which, omitting the formal parts, reads as.follows: “That Bazil Ledgerwood and Samuel Harbin, on the 7th day of October, 1891, at and in the county of Daviess, in the State of Indiana, did then and there unlawfully, willfully, maliciously and feloniously set on fire and attempt to burn down and destroy the county courthouse, situate in the city of Washington, in Daviess county, in the State of Indiana, which county courthouse was then and there the property of Daviess county, and then and there of the value of fifty thousand dollars,” is sufficient in its statement of the facts constituting the offense, as defined by section 1927, B. S. 1881, as amended by the act of March 9, 1891, to withstand a motion in arrest of judgment.</p> <p>Same. — Criminal Statute — Failure to Define a Crime. — Not Invalid as Being in Conflict with Section 237, It. S. 18S1. — Purpose of Section ■ 237, B. S. 2881. — Section 237, B. S. 1881, not Bepealed or Modified by Subsequent Enactments. — Cases Overruled. — An act declaring what shall be a crime in this State is not invalid because it fails to define the crime, as being in conflict with section 237, B. S. 1881, which section reads as follpws: “ Crimes and misdemeanors shall be defined and punishment therefor fixed by the statutes of this State, and not otherwise.?’ The intent of the language above quoted being to adopt a new and different system of criminal law, from that which had formerly prevailed, but not for the purpose of securing a more minute definition of crimes and misdemeanors than that afforded by the common law, and, therefore, section 237 is not invalid in the sense of attempting to bind future Legislatures ; and the enactment afterwards of criminal statutes which ■did not specifically define the crimes designated therein did not repeal or modify the provision in question in said section 237. Ilood v. State, 56 Ind. 263, and Ardery v. State, -56 Ind. 328, overruled.</p> <p>Same. — Statute Construed. — Act of March 9,1891, Belating to Arson.— The act of March 9, 1891, relating to the crime of arson, is not invalid for indefiniteness.</p> <p>Same.' — Jurisdiction Over the Person. — Confinement in Jail to Await Action of Grand Jury. — Plea of Guilty. — Bendition of Judgment Deferred to Next Term. — Effect on Jurisdiction. — Where an indictment is returned against the defendant, while he is confined in jail to answer to such charge, and when he comes into court, and on being arraigned voluntarily pleads guilty to the indictment, the court has jurisdiction over the person of the defendant; and the fact that the rendition of judgment on the plea of guilty was deferred until the next term of court, does not affect the jurisdiction of the court in such case.-</p> <p>Same. — Jeopardy.—When Attaches. — When Waived. — Plea of Guilty.— Withdrawal of Plea. — Effect.—Where a plea of guilty is entered and accepted by the court, jeopardy attaches as much as if there had been á trial by jury and a verdict of guilty returned; but when the defendant voluntarily withdraws his plea with the consent and permission of the court, he waives the defense of former jeopardy the same as he would by moving to set aside a verdict of guilty, and for a new trial.</p> <p>Same. — Practice.—Allowing State to Pile Counter Affidavits and Motions. ' —-When not Error. — Motion to Strike Out, and for Discharge. — There is no prror in permitting the State, in a criminal action, to file counter-affidavits and counter-motions to appellant’s motion to strike out and for discharge, when the action of the court on these motions was fully justified without regard to the affidavits or counter-affidavits.</p> <p>Same.- — Punishment.—When not Excessive. — Where, in a criminal action, the punishment inflicted is within the limits prescribed by the statutes, it can not be said to be excessive.</p> <p>Same. — New Trial. — Motion for not Proper Under Plea of Guilty. — A motion for a new trial was properly overruled where there had been no trial, as on a plea of guilty.</p> <p>Same. — Statute Construed. — Common Law Crimes. — Nonexistence in this State. — Section 237, R. S. 1881, providing that “crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this State, and not otherwise,” has not been repealed by subsequent acts, and consequently common law crimes do not exist in this State.</p>

<p>Special Finding. — Practice.—Motion to Modify.— Power of Court to Change its Finding. — Where a court finds a fact not supported by the evidence, or fails to find a fact which the evidence requires it to find, the remedy is by a motion for a new trial, and not by a motion to alter or change the finding. A court has no power to change, in any manner, its finding after the same has been filed and announced.</p> <p>Real Estate. — Color of Title. — Permanent Improvements. — Presumption of Good Faith. — Special Finding. — When Erroneous. — •'Where aperson has color of title to land, and makes permanent improvements on the same, the appellate tribunal will presume, until the contrary is shown, that they were made in good faith; and where the court finds to the contrary, and the finding is not supported by the facts . in the finding, as well as those in evidence, the finding will be held erroneous.</p>

<p>Railroad. — Grossing.—Complaint.— General Averment of Freedom from Contributory Negligence Overcome by Specific Averments. — Where a complaint against a railroad company-, for injuries received at a railroad crossing, contains the general averment of freedom from contributory negligence, and also contains the additional averment that the plaintiff, “not knowing or observing, and not having time or opportunity to know or observe that a portion of said train had been” detached and was following, started to cross the track, the additional averment rendered the complaint bad on demurrer, as showing contributory negligence, the complaint not proceeding upon the theory that the plaintiff was of such tender years as to want sufficient discretion to avoid the danger.</p> <p>Same. — Bailroad Crossing. — Duty of Traveler to Look and Listen. — It is the duty of a person, about to cross a railroad track to look and listen, that he may ascertain if there is any danger, and avoid it, and to fail to do so is negligence.</p> <p>Contributory Negligence. — Age of Irresponsibility, not Wholly Irresponsible, and of Besponsibility. — Degrees of Care. — In determining whether one is guilty of contributory negligence, the age may be taken into account; children of tender years, not having reached the age of responsibility, not being guilty of contributory negligence, and children 'having attained an age when they are not wholly irresponsible, and not chargeable with the same degree of care as adults, and adults who have attained to an age of sufficient discretion to appreciate the danger.</p>

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

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

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

<p>Appeal. — Practice.—Question of Law Arising During Trial. — How Saved. — Hew Trial. — Where a motion was made, in the trial court, to strike out certain evidence, which was overruled, and the ruling excepted to, but such action of the court not having been made a cause for a new trial, no question is presented on appeal as to the correctness of such ruling, for, to preserve the question for this court, it would have been necessary to have assigned it as a cause for a new trial.</p> <p>Evidence.— Impeaching Testimony.— When Competent.— Impeaching testimony only becomes competent after a foundation is laid, and • only such testimony is competent which comes within the limits of such foundation.</p> <p>New Teial. — Cause for. — Newly Discovered Evidence.— When Sufficient. —The Supreme Court will not reverse a judgment for failure to grant a new trial for newly discovered evidence, unless it is of such a character, and of such importance as it would be reasonable to suppose that it would have changed the verdict or finding had it been given in the trial. *</p>

<p>Assignment of Errors. — Joint Assignment. — When Must Fail. — Where an assignment of error is that the court erred in sustaining demurrers to several (naming them) paragraphs of complaint, the assignment must fail if any one paragraph is bad.</p> <p>Pleading. — Sufficiency of Complaint. — Trust.—Advancement.—A paragraph of complaint seeking to quiet title and enforce an equitable lien against land was, in substance, that A. conveyed to B., the husband of 0. (the daughter of A.), in trust and for the use of O., a certain tract of land as an advancement to her of apart of his (A.’s) estate; that B. paid no consideration therefor, and accepted the trust, and took possession of the land, and so held it until, with C.’s knowledge and consent, he sold the land and invested the proceeds in other lands, taking the deed in his own name, and held the same until his death; that each and all of the conveyances were made in good faith and without fraud; that B. at no time denied, but admitted, that he held the same for her use and benefit; that the defendants are heirs and creditors of B., and are claiming some interest in said land adverse tO'C. Wherefore, etc.</p> <p>Held, that the paragraph of complaint was insufficient on demurrer, in failing to show the existence of a trust in favor of 0.</p>

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

<p>Rent. — When Due. — Action for. — Tenancy from Year to Year. — What Constitutes Such a Tenancy. — Sufficiency of Complaint. — Landlord and Tenant. — Where one holds as' a tenant without a contract as to the duration of the tenancy, he is a tenant from year to year; and, under such a tenancy, where action is brought to recover accrued rent before the expiration of the year, and the complaint does not allege an agreement or a custom from which it appears that the rent was due when the suit was commenced, the complaint is insufficient; for, under such a tenancy, in the absence of a special agreement or custom to the contrary, rent is not due until the end of the year.</p> <p>Real Estate. — When Building a Part of. — When Personalty. — Where a building is erected, prima facie, it is a part of the land upon which it stands, and ’ in order to rebut this presumption of law, a state of facts must be shown which will take it out of the general rule.</p>

<p>Municipal Corporation. — Gity.—Common Council. — City Attorney.— When Duly Appointed. — Mandamus.—Evidence.—In an action against the mayor of a city to compel him to issue an order to the relator for services rendered as city attorney, the plaintiff objected, without avail, to the admission in evidence of a resolution passed by the common council subsequent to the bringing of the action. The admission in evidence of such resolution, though erroneous, was harmless, for the reason that the relator must fail in his action, because he had never been duly elected city attorney, the common council having no power to appoint another city attorney as long as the office is filled.</p> <p>Pleading. — Answer.—Can not be Questioned First on Appeal. — The sufficiency of an answer can not be questioned for the first time in the appellate tribunal.</p>

<p>Fraudulent Conveyance. — Action to Set Aside. — Sufficiency of Complaint. — Undue Induenee. — In an action to set aside a fraudulent conveyance of land, the complaint is sufficient which alleges, in substance, the great age and feebleness of intellect of the grantor, the persistent and long-continued importunities of the grantee, the gross inadequacy or want of consideration, the relation of the parties, the nature of the transaction, and the circumstances surrounding the same, together with the allegation of undue influence and other allegations indicating fraud.</p> <p>Assignment op Errors. — Overruling Demurrer to Complaint. — When Assignment of Mr or Amounts to Admission of Truthfulness. — Where an assignment of error is that the court erred in its conclusions of law on the facts found, and the facts found are substantially the same as alleged in the complaint, to which the appellant had demurred in the court below, and the overruling of which demurrer he assigns as error, the facts found are admitted to beHrue by virtue of the assignment of error on the overruling of the demurrer.</p> <p>Same. — Mow Question May be Saved for JReview on Appeal. — -Before an alleged error can be brought before this court for review, it must, in general, be brought to the attention of the trial court,[so that, if the error in fact exists, it may be corrected in that court.</p> <p>Special Findings.— When not Contrary to Law. — Where the findings of the court are within the issues presented by the pleadings, and are supported by the evidence, they can not be contrary to law.</p>

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

<p>Pleading. — Master and Servant. — Action by Servant for Damages. — Suf. ficiency of Complaint. — Necessary Allegations. — In an action for damages by a servant against his master, for injuries received while in the line of his employment, by reason of defective machinery, the complaint, in such an action, must allege not only the violation of the master’s duties, but such performance of his own duties that it may appear that he has not been negligent in contributing to his injury, and that he has not assumed the risks incident to the defects of which he complains; and, to make the complaint sufficient, it must be further alleged that the defendant had knowledge of such defect, or, by the exercise of reasonable cafe and prudence, should have known it. In such an action it is not incumbent upon the plaintiff to allege that he did not know of the defect, and could not have known of it by the use of ordinary care and prudence, the allegation that he did not know of such defect being sufficient to rebut any imputed knowledge thereof.</p> <p>Same. — Master and Servant. — Place and Appliances of Employment.— Latent Defects. — In such a case, where the defect is latent, it should be made to appear affirmatively that the master knew of it, or by reasonable diligence might have known of it.</p> <p>Master and Servant. — Safe Place and Appliances. — Servant Chargeable with Knowledge of Patent Defects. — While the employe may repose confidence in the prudent and cautious adherence to duty by the employer, yet he may not repose that blind confidence in the performance of the employer’s duty which fails to observe patent defects, which an ordinary observance.of the employe’s duty would readily disclose.</p>

<p>Pleading. — Railroad.—Action for Damages. — Sufficiency of Complaint. ■ — When Plaintiff Rightfully on Defendant's Car. — Plat-Car.—SideTrack. — Lumber Company. — Contributory Negligence. — In an action against a railroad company for damages caused by the alleged negligence of the railroad company, it appears, from the complaint, that the plaintiff, at the time of receiving the injury complained of, was upon a flat-car helping to unload lumber from the car, a part of which he had purchased, and that he was thus helping at the request of the lumber company, to which the car-load of lumber was consigned, and by which it was owned; that the car-load of lumber was upon a side-track provided by the railroad company to deliver cars upon, to be unloaded by the owner of cars thus delivered; that \ while so engaged in unloading the lumber the plaintiff, without any fault on his part, but wholly by the fault and negligence of the defendant, was injured.</p> <p>Held, that the plaintiff was rightfully on the car, if there by the invitation of the lumber company, and that being requested by the ! lumber company to assist in unloading lumber from the car, he had a right to be at any proper place to do the work, whether such place be on or ofE the car.</p> <p>Held, also, that it is unnecessary that the complaint should show that there was an executed contract between plaintiff and the lumber company to purchase a particular or separate portion, or all, of the lumber upon the car; that if plaintiff had purchased a bill of lumber of the lumber company, a part of which was upon the car not separated from the other, and he entered upon the car, at the request of the lumber company, to assist in unloading the car, he was there of right.</p> <p>Held, also, that the general averment of freedom from contributory negligence is sufficient as embracing all specific averments that might be made to that effect.</p> <p>Same. — How Construed. — -A pleading is not only to be judged by its general scope, but the language used must be given a reasonable and fair construction, and if by such construction the pleading will withstand a demurrer, the demurrer to it should be overruled.</p> <p>Verdict. — Chance or Quotient Verdict. — Illegality of. — Chance or quotient verdicts are universally condemned, and where it is shown by competent evidence that a verdict has been reached by such means, it will be set aside.</p> <p>Witness.- — Competency of Jurors to Testify as to Their Verdict. — Jurors are not competent witnesses to the fact that their verdict was arrived at in an illegal manner, but when the verdict is attacked as being arrived at illegally, the jurors are competent witnesses to sustain its validity.</p> <p>Vebdict. — Invalidity of. — How Shown. — Witness.—Competency of. — The invalidity of a verdict because of the manner of arriving at it, may be shown by affidavit of the bailiff, or other person who may be in a position to know the fact, except a member of the jury, who is incompetent to testify to that fact.</p> <p>Bill oe Exceptions. — General Bill. — Special Bill. — When Bill Must Show that it Contains all the Evidence. — Exception to Buie. — Affidavits. — The rule requiring a bill of exceptions to show that it contains all the evidence given in the cause, only applies to general bills purporting to contain the evidence given on the trial of the cause, and does not apply to collateral matters, such as affidavits filed in support of motions.</p> <p>Same. — Presumptions.—It will be presumed, by the appellate tribunal, that the trial court did its duty in requiring a bill of exceptions to show the facts upon which the ruling was made, before the bill is signed; and that the ruling of the trial court is correct.</p>

<p>Descent. — Second Wife without Children. — Children by First Wife.— Life Estate. — Fee Simple. — Statute Differently Construed. — A. died intestate, in 1855, leaving as his widow a second wife, by whom he had : no children, and heirs by the first wife. Partition proceedings were had, which resulted in a judgment for partition, declaring the widow [ entitled to a third of the land, which was set off to her, and the remainder was partitioned among the children by the former wife. The widow, in 1865, sold and conveyed, by quitclaim deed, the land so set off to her to one B., and, about the same time, certain of the children by the former wife conveyed their interest in said land to B. by quitclaim deeds. In December, 1885, the grantees of B. commenced suit to quiet their title to said land, making defendants thereto the children of A. by his first wife. Did A.’s widow, upon his death, acquire a life estate or fee simple interest in the lands of A.?</p> <p>Held, that A.’s widow took a fee simple interest in the lands of her husband, but, as the statute (sections 2483 and 2487, R. S. 1881) was construed to mean, at the time the land was sold and conveyed, that the widow should be entitled to a life interest in the lands, the statute, as then construed, must determine the rights of the parties, and a subsequent change in its construction could not operate retroactively so as to impair the obligation of contracts.</p> <p>Held, also, that the children by the first wife, at the time they executed their quitclaim deeds, had no interest in the land, and that such deeds do not estop them from asserting an after-acquired right to such land.</p> <p>Title. — When not Affected by Partition Proceedings. — In an action for the partition of land, where no other question is adjudicated, the judgment does not vest a new title, but the parties hold by the same title as existed before judgment.</p> <p>Statute oe Limitations. — -When Begins to Bun Against Heirs. — Where land descends to a second wife without children, the statute of limitations does not begin to run against the children of the first wife by the same husband until the death of the step-mother.</p>

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

<p>Demurrer. — Overruling to Argumentative Answer. — No Available Error. —It is not reversible error to overrule a demurrer to a paragraph of answer which amounts merely to an argumentative denial of the matters alleged in the complaint.</p> <p>Judgment. — Non Obstante Veredicto. — Interrogatories to Jury. — Damages. — Obstructing Stream. — Judgment should not b'e rendered on answers to interrogatories notwithstanding'the general verdict, unless there is an irreconcilable conflict between the general verdict and the answers to the interrogatories; and, in an action for damages to crops and lands by reason of the construction of a dam across a stream, the general verdict awarding damages to the plaintiff is not irreconcilably in conflict with the answers to interrogatories which show that the crops and lands would have been damaged in the absence of the dam, but that the dam might have aggravated the damages.</p>

<p>Highway. — Public Easement in. — Bights of Fee-Owner. — Statute strued. — Natural Gas. — The act of February 20, 1889, relating to natural gas companies, does not enlarge the interest of the public in highways, nor diminish the right of the fee-owner in the soil. The land-owner, in the absence of legislation to the contrary, holds the right to permit the incumbrance of the fee with an easement in addition to that of the public to pass and repass upon the highway, when such additional easement does not prejudice the rights of the public therein, all rights being reserved to the fee-owner, which are not inconsistent with the easement of the public for the purpose of travel.</p> <p>Injunction. — Natural Gas Company. — Pipe Line. — Highway.—Essential Facts. — In an action, by the commissioners of the county, to enjoin a natural gas company from laying its pipes in certain highways thereof, where it does not appear that at the time the suit was instituted, the company was attempting or threatening the use of any of such highways for such purposes, the injunction will not be granted.</p> <p>Natural Gas. — Bights of Company as Affecting Highways. — The right of natural gas companies to affect the fee of a highway are secured through proceedings in the circuit court against the fee-owner, while as affecting the easement of the public, they are secured through the commissioners of the county.</p> <p>Cancellation op Instrument. — Permit to Use Highway. — County Commissioners. — Natural Gas. — When a board of county commissioners seeks to cancel a permit by them to a natural gas company to use a. highway for its pipe line, it is incumbent on the plaintiff to allege and prove facts entitling it to a rescission, and if the plaintiff fails to> show that defendant has not acted upon the permit in good faith, such failure is fatal to the action, even if the order was voidable.</p>

<p>Pleading. — Complaint.—Sufficiency of Allegation as to Value. — Subrogation of Insurance Company to Bights of Insured. — Bailroad.—In an action by an insurance company to be subrogated to the rights of the insured for damages sustained by the insured by the negligence of the defendant railroad company in permitting sparks of fire from its engines to be communicated to stacks of hay of the insured near defendant’s right of way, and by reason thereof they were destroyed, and plaintiff compelled to pay a large sum of insurance, the allegation as to value that the hay so destroyed was of ‘great value, ’ ’ is sufficient to withstand a demurrer, but might have been made more specific on motion to that effect.</p> <p>Subrogation. — Insurance Company to Bights of Insured. — Damages to Property Insured. — Where property is injured or destroyed by the negligent act or omission of one, under such circumstances as that the owner of the property may maintain an action for such injury or destruction, if such property is insured, such insurer, if compelled to make good the loss to the owner, may be subrogated to the rights of the owner, and recover from the wrong-doer a sufficient sum to reimburse him for such outlay, provided the damages are sufficient to equal the sum paid.</p> <p>Damages.' — Foreign Insurance Company. — Non-Compliance with Statute. —Subrogation to Bights of Insured. — Matter of Defense.- — In an action by an insurance company against a railroad company for damages ' to property insured by it, and by reason of which insurance it was compelled to reimburse the insured, and to be subrogated to the rights of the insured, it is not a matter of defense by the railroad company that the insurance company has never complied with the laws of this State relating to foreign insurance companies, the insurance company being entitled to be subrogated to the rights of the insured, as to the injury to such property, regardless of the fact of non-compliance.</p> <p>Quaere, is a contract of insurance made in this State by a foreign insurance company, which has not complied with the law of this State relating to such companies, void ?</p>

<p>Description. — Beal Estate. — Lot Abutting on West Side of Street. — So Many Feet off East Side of Such Lot. — Beckon from Center of Street or West Boundary of Street. — Where a lot was described as follows: “ Commencing at the southeast corner of lot 5, thence north to the northeast corner, west 72 feet, south to the south line, and east to beginning,” there being a street on the east side of said lot, the land conveyed was a strip 72 feet wide off the east side of said lot, extending west from the west boundary of said street, and not from the center of the street.</p> <p>Same. — Lots and Streets. — When Lot-Owner Takes to Center of Street. —Description by Metes and Bounds. — Where land is legally platted for town purposes, a lot must be understood to mean the land independently of the street, though the adjacent lot-owner, by the purchase of the lot or that portion adjacent to the street, takes title, ordinarily, to the center of the street, subject to the rights of the public; and he would take title to the center of the street, if, in describing the lot, or such part thereof, it were described by metes and bounds running to and along the street.</p>

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

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

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

<p>Deposition. — By Defendant in Criminal Action. — Two Methods.■ — Statute Construed. — As to the manner of taking depositions within the State by a defendant in a criminal action, there are two methods: First, by leave of court; and, second, by notice to the prosecuting attorney. And the word “ conditionally,” as used in the statute, does not express the method of taking the deposition, but the condition of its use.</p>

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

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

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

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

<p>Pleading. — Sufficiency of Complaint. — Action Against Directors of Water-Works Company. — Corporation.—Forfeiture.—In an action against the directors of a water-works company to enforce a forfeiture for failure to collect the capital stock in the time alloted by law, the complaint sufficiently shows that the company was organized under the “manufacturing and mining associations act,” which alleges that the company was organized for the purpose .of constructing, running, and operating a water-works system, as that is the only act under which the company could have organized for such purpose.</p> <p>Same. — Necessary Parties Defendant. — Water-Works Company. — Directors of. — Suit Against. — In such an action, it is immaterial whether the plaintiff sue all or a majority of the directors; for whatever duty is enjoined, the violation of which will leave the company insolvent, is, by the terms of the statute, mandatory, and a refusal on behalf of any number of the directors to enforce the duty of the company to collect the stock, is an assent to the violation of its duty.</p> <p>Evidence. — Water-Works Company.— Payment for Stock. ■ — ■ Secretary Competent Witness. — -In an action against a water-works company, where the material question in issue was whether the stock had been paid for, the secretary of the water-works company may testify as to such question, such fact not appearing upon the face of the contract upon which the stock was issued.</p>

<p>Receiver. — Complaint.—Sufficiency, Sow Tested on Appeal. — On an appeal from an order of court appointing a receiver, where the sufficiency of the complaint is called in question, the appellate tribunal will test the sufficiency of the complaint only in so far as it relates to the appointment of the receiver and the cause therefor. The complaint must contain some facts authorizing the appointment of a receiver at the time such appointment is made, or it will be insufficient. If the complaint has an object other than that of the appointment of a receiver, it remains in the trial court, in so far as the other branch of the case is concerned, and the sufficiency of the case in that respect can not be questioned on such an appeal.</p> <p>Same. — Corporation.—Appointment of Beceiver on Application of Shareholder. — Equity.—A shareholder of a corporation, as well as a creditor thereof, has a right to invoke the authority of a court of equity in the appointment of a receiver of the corporation, where the conditions essential to such proceeding exist; and this principle is also true of a shareholder who has rights as a policyholder or creditor.</p> <p>Same. — &roundfor Appointment. — Power of Court Over Management and Property of Corporation. — To authorize the appointment of a re- . ceiver there must be some valid ground for so doing, though the object may be, in so far as the power of the court is concerned, to wrest the management and property of the corporation from the hands of designing, incompetent, and irresponsible officers in charge of its affairs, who are squandering or converting the funds, and require an accounting by such officers; and such management and property of the corporation may be so held until the management is changed or proper security is given for the fu-nds of the corporation. The court has the power at any time, when it will sub-serve the interests of the parties, to discharge the receiver and restore the management and property of the corporation to its duly constituted management.</p> <p>Same. — Corporation.—Shareholder.—Bedress by,Sow Obtained. — Equity. —A stockholder or shareholder is bound to seek redress by application to the directors or the corporation itself, before applying to a court of equity for the appointment of a receiver, where that is feasible and will afford to him an adequate remedy, and he can only apply to a court of equity in the first instance where an emergency exists for so doing, and it is made to appear that an application to the directors or the corporation would be impracticable, or that relief by injunction will' not afford a proper remedy by staying the illegal acts of the corporate officers until relief can be had through an application to the directors or the managing body.</p> <p>Equity.- — Insolvent Corporation. — Power to Dissolve. — A court of equity has no power, independently of statute, to dissolve an insolvent corporation. ■</p>

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

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

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

<p>Highway. — Fraud in Establishment.-^-Waiver of Fraud. — Action to Van cate Order. — Not Seasonably Brought. — A petition to establish, a highway was presented to the board of commissioners of the county. A remonstrance was filed thereto, and by agreement between the petitioners and the remonstrators, the case was continued to the next term of commissioners’ court, when, upon the performance of certain conditions by the remonstrators (the opening of a private right of way), the petition should be dismissed. The private way was promptly opened, but the petitioners, at the succeeding term of court, represented to the board that the remonstrators had not performed the condition precedent to dismissal, and therefore viewers were appointed, who reported favorably to the establishment of the highway, and an order was made to that effect. The former remonstrators filed a petition to vacate the highway, and the former petitioners remonstrated thereto, and, upon viewers being appointed, they reported the highway to be of public utility, and from this last proceeding the petitioners appealed to the circuit court, and after-wards dismissed the appeal. Afterwards, nearly a year after the order was made, the petitioners in the last proceeding brought suit in the circuit court to vacate the order establishing the highway, as having been procured by fraud.</p> <p>Held, that the plaintiffs, by the proceeding to vacate the highway in the manner prescribed by statute, waived the fraud alleged in their complaint.</p> <p>Held, also, that the action to set aside the order was not seasonably brought, being delayed too long after the discovery of the fraud.</p> <p>Judgment. — In Bern. — Establishing Highway. — Parties to. — A judgment establishing a public highway is a judgment in rem, and is not in favor of the petitioners therefor, but is in favor of the public.</p>

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

<p>Pleading. — Personal Injury. — Damages.—When Complaint Need not Negative Knowledge of Defect. — Railroad.-—Duty to Construct Safe Crossing. — The rule that an employe who sues the employer for injuries sustained because of defective machinery or appliances, must aver that he did not have knowledge of the defect, does not apply to a case where a person rightfully crossing a public street falls into a ditch or pit wrongfully left unguarded by a railway company under a duty to construct a safe crossing.</p> <p>Evidence. — Affidavit for Change of Venue Incompetent. — Reversible Error. — Harmless Error. — An affidavit made in support of an application for a change of venue is not competent evidence, and its admission as such will amount to reversible error, unless such admission worked no harm.</p> <p>Same. — Declarations and Admissions of Railway’s Counsel. — When not Binding on Company. — -When Incompetent as Evidence. — Reversible Error. — The legal adviser, or general counsel, of a railway company has no authority, by virtue of his general employment, to bind the company by declarations or admissions outside of the business of the law department, unless it is shown that such counsel is vested with special or general authority concerning matters outside of such department.</p>

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

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

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

<p>Railroad. — Railroad Crossing. — Injury.—Complaint for Damages.— Necessary Allegations. — High Rate of Speed. — When Negligence. — In an action against a railroad company for damages because of injuries received at a railroad crossing,the complaint is sufficient which alleges, in substance, that defendant’s train was running across a street in the city of Greenfield at a dangerous, reckless, and unusual rate of speed, fifty miles per hour, over and across the street where the injury occurred, where a great many persons were constantly passing, and where the plaintiff was injured without her fault, but by the fault and negligence of the defendant. The particular facts being sufficiently stated, it is the province of the jury to say whether the speed of the train at the street crossing, or its unusual character, or other facts and circumstances, were acts of negligence or not. And whether a given rate of speed is negligence or not must depend on the circumstances of each particular case.</p> <p>Same. — Railroad Crossing. — Priority of Passage. — Care Required of Traveler and of Company. — Equal Rights. — The right of priority of passage at a railroad crossing belongs to the railroad company; but, in other respects, the rights of the traveler and the rights of the company are equal; and neither has the exclusive right to the use of the crossing, and both are required to use ordinary care to prevent a collision.</p> <p>Same. — Bailroad Grossing.- — -Dangerous Speed. — Negligence.—Whether the speed of a train at a crossing is dangerous and negligent depends upon the circumstances, a high rate of speed being allowable in thinly settled parts of the country where but few persons would have occasion to cross, while, not to be dangerous, less speed is required through a city or village where crossing is more frequent.</p> <p>Same. — Personal Injury. — Bailroad Grossing. — Wien Negligence of Husband not Ascribed to Wife. — Where, in approaching a railroad crossing, the wife, riding in the wagon with her husband, was under his protection and control, and because he was in control of the team, it does not follow that his negligence, if any, could be ascribed to her.</p> <p>Same. — Bailroad Grossing.- — Bate of Speed. — Gity Ordinance. — Regardless of a city ordinance, a railroad company is required to run its trains over frequented crossings in such a manner as to have due regard to the safety of the people who cross its track, the rate of speed to be guided by the circumstances of each case.</p> <p>Same. — Duty to Look and Listen.— When Failure to See or Hear Train is not Negligence. — It does not follow absolutely, and under every circumstance, that because a person could, by looking and listening, see a train, he is negligent in not seeing or hearing it, if there are surrounding circumstances that may prevent him from seeing or hearing.</p> <p>Verdict. — General.—Answer to Interrogatories. — That the general verdict and answers to interrogatories are not in irreconcilable conflict, see opinion.</p> <p>Evidence.— Gross-Examination. — Explanatory Evidence. — Conversations. — On cross-examination, where the witness was asked why he set his clock by the whistle of a train on a certain day, and to give reason why he remembered a particular circumstance, the answers to such interrogatories are not erroneous because among the circumstances related are words of conversation necessary to show why the memory of such act remains clear.</p> <p>Same. — Personal Injury. — Declarations of Pain. — Admissibility in Evidence. • — In an action for damages because of personal injuries, it is competent to prove expressions of pain and suffering made by the injured person at the time of the pain and suffering, whether at the time or after the date of the injury, and it is immaterial whether such declarations or exclamations of suffering were made in the course of a conversation or not; but it would not be proper to give in evidence declarations by the injured party of past suffering.</p> <p>Same. — State of Health Previous to and Subsequent to Injury. — How Proven. — In such actions it is proper to prove, by physicians and other witnesses, the conditions of health and strength both before and. after the injury; and physicians may also state the conclusions they have formed from knowledge gained by examinations and observations.</p> <p>Same. — Personal Injuries. — Inseparable Incidents to Accident. — In such an action, it is not error, in adducing evidence, to mention in connection with such personal injuries, the death of another by the same accident, such fact being inseparably connected with the occurrence which caused the injuries complained of.</p> <p>Same. — Physician and Patient. — Good Faith of Patient. — Complying with Directions of Physician. — In such a case testimony was offered to the effect that the plaintiff took to her bed the second time, by the advice of her physician, intimating that plaintiff had tried to exaggerate her injury,- and that the physician employed was incompetent. There being nothing to show that plaintiff acted otherwise than in good faith as to the injury sustained by her, it was proper for her to follow the advice of her physician, and such evidence was properly excluded.</p> <p>Same. — Admission or Exclusion of. — When Harmless Error. — The exclusion of competent testimony, or the admission in evidence of incompetent testimony, will not amount to reversible error where such exclusion or admission could not have harmed the complaining party.</p> <p>Same. — Personal Injuries. — Employment of Physician by Defendant to Examine Injuries. — The fact that a physician was emplyedby the defendant in an action for damages because of personal injuries, to make an examination of the plaintiff’s injuries, that he might inform himself of the facts before testifying, may affect the credibility of his testimony, but does not make it incompetent.</p> <p>Same. — Bailroad.—Speed of Train at and Previous to Accident. — Where the evidence in a case as to the speed at which a train was running at a certain time and place is conflicting, the rate at which the train was accustomed to be run at that place shortly prior to the happening of the event in issue may be given in evidence.</p> <p>Same. — Bailroad.—Notice of Circumstances Surrounding Crossing. — In an action against a railroad company because of injuries received at a railroad crossing, it is not necessary for the plaintiff to prove that the defendant had notice of the circumstances surrounding the crossing.</p> <p>Instructions to Jury. — Incompleteness of Instruction. — An instruction to a jury is not bad because it is incomplete in its statement of the law, if it is completed by other instructions given.</p> <p>Same. — Assumption of Fact.— When not Error. — The assumption of a fact in an instruction is not error, where the fact is not controverted.</p> <p>Same. — Fair Preponderance of Evidence. — An instruction which stated, among other things, that the jury must be the judges of the fair preponderance of the evidence, is in this respect correct.</p> <p>Same. — Modification of by Court. — Degree of Care. — An instruction was asked in the following terms: That plaintiff, to avoid danger, should have exercised her senses as fully as possible. The court modified it so as to read: Should have exercised her senses as an ordinarily prudent and careful person. Such modification was necessary and right.</p>

<p>Decedent’s Estate. — Administrator.—Action for Damages Because of Death of Decedent. — Control of Action. — Bight to Compromise. — Answer of Compromise with Widow, and Payment. — The authority given to the personal representative of a deceased person, under section 284, R. S. 1881, to prosecute an action for damages, includes, by necessary implication, the -right to control such prosecution; and the widow, if any, and heirs of the decedent, not being parties to the action, and having no right to be parties thereto, have not the right to compromise the action, and such a compromise can not be pleaded in answer to an action by the personal representative of such decedent.</p>

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

<p>Instructions to Jury. — Enumeration of Facts and Circumstances.— Limitation of Considerations of Jury to Facts Enumerated.— When Erroneous. — If, in instructing the jury, the court seeks to limit the consideration of the jury to the facts and circumstances enumerated in it, and the instruction omits material facts disclosed by the evidence, such instruction will be erroneous.</p> <p>Same. — Negligence.—Passenger.—Street Railroad. — Requisite Degree of Care. — Where a passenger ^entered a street railroad transfer car, and while waiting there received injuries by falling out of a door of the car, an instruction was erroneous which informed the jury “ that if she took the position against or close to the door without observing it, she did so without being guilty of negligence, and that if defendant’s servant was guilty of negligence, she can recover, if, occupying the position she did, she fell without fault on her part.”</p> <p>Negligence. — Passenger.—Entering Public Place. — Requisite Degree of Care.- — Persons traveling, entering cars or vehicles or structures for the accommodation of passengers while waiting for cars, are not justifiable to go into such place and close their eyes and ears to the natural and ordinary use of the premises and things surrounding them. They are required to use their senses to such extent as a reasonably prudent person would have done under the circumstances to avoid danger.</p> <p>Railroad. — Common Carrier of Passengers. — Degree of Care Required of. — A common carrier qf passengers is required to exercise the highest degree of care, diligence, vigilance, and skill, which care is dependent to some extent upon the degree of peril which would be incurred by reason of a lack of vigilance.</p> <p>Same. — Passenger.—Dutrj of to Follow Directions of Company’s Servants. —Reliance on Servant’s Knowledge of Danger. — Presumption.—It is the duty of a passeiiger on a car to follow the reasonable instructions of those in charge of the car in regard to moving from one part of the car to another, unless it is apparent to the passenger that the movement would be attended with danger; and the passenger may rightfully presume that the servants in charge of the cars are familiar with their operations, and have a reasonable knowledge of what is safe and prudent for the passengers to do. And if, in obedience to the directions of such a servant, a passenger, standing in a safe ! place, where injury would not have occurred, moved to another part of the car, unaware of the fact that the place was unsafe, and while there received an injury .by reason of assuming such position without fault on her part, the company would be liable for such injury ; and in the absence of apparent danger, such passenger had the right to assume that the place to which she was directed to move was safe.</p>

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

<p>Instructions to Jury.— Will. — Mental Incapacity. — Instructions as to. — ■ In an action contesting the validity of a will, because of unsoundness of mind of the testatrix and undue influence, the plaintiffs requested the court to instruct the jury that unsoundness of mind, in law, means the same thing as insanity; but this the court refused to give, and of its own motion gave the statutory definition of “a person of unsound mind,” and otherwise fully instructed the jury as to the various degrees of mental disease, and as to what condition and degree of mental infirmity would disqualify a person from making a ■ valid will, the instruction given fully covering all that was requested. The action of the court was clearly right.</p> <p>Insanity. — Presumption of Sanity.— When Presumption of Insanity Obtains. — The law presumes that every person is of sound mind, until the contrary is shown; and when unsoundness of mind of a permanent nature has been established, the presumption is that that state of mind continues until the contrary is proven.</p> <p>Evidence.' — Declarations of Deceased Person Against Interest. — Will.-— Legatee. — Undue Inflxience.— Unsoundness of Mind. — The declarations of a deceased legatee as to the incapacity of the testator to make a will, and declarations tending to show undue influence, being against the interest of the legatee, are competent in evidence against his heir, made a party in his stead, and representing all his interest.</p>

<p>Pleading. — Duplicity.—Sufficiency of Complaint. — Personal Injuries.— Mailroad. — In an action against a railroad company by an employe for damages because of personal injuries sustained, the paragraph of complaint, which states two causes of action, is not fatally defective Ywhere objection is waived to the form of pleading, if either cause is sufficiently stated.</p> <p>Judgment. — Sufficiency of Evidence to Sustain. — A judgment will not be reversed as not being sustained by the evidence, when the evidence tending to support it is insufficient to( uphold it, disregarding all conflicting and unfavorable evidence thereto.</p> <p>Master and Servant.— When Servant Does Not Assume Dangers Incident to Service. — Duty of Servant to Obey Orders. — Service Not Within Contract by Order of Master. — Where a servant agrees for a given consideration to perform certain services, the servant assumes all the ordinary risks and dangers incident to such service; but where , the master orders the servant to perform service other than that embraced in the contract of hire, a different rule prevails, and there is no implied agreement that the servant will take on himself the risks ' incident to the service, but, on the other hand, the master impliedly assures the servant that he has exercised reasonable care to have l the place, machinery, etc., in a safe condition, and fit for the business for which they are used, and further assures such servant that [ he has exercised reasonable care in the selection of the servants with whom such servant is to labor in his new service into which he is ordered.</p> <p>Same. — When Servant’s Compliance with Master’s Order Not Negligence. —Personal Injury. — In such a case it is not contributory negligence \ for the servant to obey the order of the master, unless the danger in the new service into which the master has ordered him is so glaring that no prudent man would have entered into it.</p>

<p>Estoppel. — Mamed Woman. — Contract as to Her Separate Estate.— When Estopped from Denying Validity. — Where A. was indebted to B. by note, fora certain sum of money, and upon the maturity of the note A. represented to B. that he had the money with which to pay off such note, and that his, A.’s, wife desired to borrow said money for the purpose of making improvements on, and paying off liens on, certain real estate which she held as her separate estate, and that, to secure such loan, she and her husband would join in the execution of a mortgage on said real estate to B., in which representations the wife joined, being present at the time; and relying upon such representations by the wife, B., in good faith, consented to make the loan, delivering up A.’s note for the amount, and receiving the wife’s note and said mortgage instead, and directed A. to pay the money to his, A.’s, wife, which he agreed to do, and to which the wife consented; she will be estopped, under such circumstances, from denying the validity of the contract by which she induced B. to part with the consideration therefor.</p> <p>Judgment. — Not Contrary to Evidence. — That the finding of the trial court is supported by the evidence, see opinion.</p>

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

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

<p>Statute of Limitations. — Action for Partition. — Fifteen Tears’ Statute. • — When a Good Defense. — The twenty years’ statute of limitation does not apply to actions for partition; and, to make the plea of the fifteen years’ statute a good defense in such an action, it must show an adverse holding for fifteen years.</p> <p>Same. — Set-Off.—Life Equal to Original Claim. — The life of a set-off is equal to that of the original claim, and is only barred when the original claim is barred.</p> <p>Pleading. — Bad Beply to Bad Answer. — Overruling Demurrer to Beply.— Assignment of Error. — A bad reply is good to a bad answer, and error , can not be predicated upon the action of the court in the overruling ’of a demurrer to such reply.</p> <p>Same.' — Partition.—Counter-Claim for Improvements. — Answer Setting Up Beceipt of Bents and Profits. — In an action for partition, when the tenant in possession asks an allowance for improvements made while in possession, the co-tenant may answer setting up the facts as to the receipt of rents by the tenant in possession due the co-tenant, and such facts may be taken into account in making the adjustment.</p> <p>Trial by Jury. — Partition,—Cross-Complaint for Equitable Belief.-— General Motion. — In an action for partition, when the defendant answers by cross-complaint asking for equitable relief — an accounting between the tenants — the defendant demanded a trial of the issues by a jury, which was refused. The issues joined on the cross-com-r plaint demanding equitable relief were triable by the court alone, and there was no error in the action of the court. Had the motion for submission been confined to the issues joined on the complaint, the result would have been different.</p> <p>Description. — -Partition.—• Order of. — -Commissioners' Beport. — -Variance. — It is not error for the court to overrule a motion to set aside ; the report of commissioners in partition, on the ground that the description of the land in the order of partition and the description in the report of the commissioners do not correspond, unless such variance affirmatively appears of record.</p>

<p>Estoppel. — Quieting Title. — Subsisting Lien. — Failureto .ássert. — -Where a defendant to an action to quiet title to land fails to assert any lien which he may have thereon, such defendant will be estopped thereafter from asserting such lien. Such lien should have been set up by way of cross-complaint, and saved from the operation of the ' decree quieting title.</p>

<p>Mortgage. — School Fund Mortgage. — Mamed Woman. — When can not Defend Against. — Allowing Aitditor to Pay the Money to Another.— Bemedy. — Where a married woman obtains a school fund loan, and executes her note and mortgage therefor, her husband joining in the mortgage, which are accepted by the county auditor, she has a right to the money which the loan calls for, and if the officer or officers refuse to discharge their duty in this behalf, and pay the money over to her, and if she fails to exact her rights in that behalf, or waives her right to the money, and directs or permits the auditor to retain and pay the money to others, she may have a right of action against the auditor, but she can not defend against the mortgage executed to the State.</p>

<p>Action by Parent for Death of Child. — Measure of Damages. — Instruction to Jury. — Bailroad.—In an action by the father for the death of his son caused by the negligent act of a railroad company, the son being unmarried and of age, and the father and mother being the only heirs at law of said son, an instruction given to the jury to the effect that they should assess a sum of money equal to the amount the deceased would most probably have earned during the period of his life in which he would probably have earned money, deducting therefrom the reasonable and probable cost of his own support and personal outlay, making fair deduction for present payment of such sum, is erroneous; the decedent being under no legal obligation to support his father and mother, and it not being probable that they would have survived him and become his heirs, the measure of damages must be different from a case where the decedent leaves a wife, or a wife and children.</p>

<p>Taxes. — Special Finding.— Value for Taxation. — When Not Within Issues. — Finding Disregarded. — Where the court, in an action to enjoin the addition of ¡¡¡¡27,425 to plaintiffs’ taxable property as ordered by the county board of equalization, finds, as to bills receivable and credits, “their fair value for taxation as compared with other property and. choses in action of a similar kind and character in said township,” such finding is not within any proper issue, and should . be disregarded, the issues being as to the market value or the fair cash value.</p> <p>Conclusions of Law. — Special Finding of Facts. — When Conclusion is Erroneous. — The conclusions of law upon a special finding of facts must be supported by the facts found, or it will amount to reversible error.</p>

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

<p>Injunction. — Action to Enjoin Enforcement of Execution. — Necessary Allegations to Authorize Presumption Against Title. — Decedent’s Estate. — In an action to enjoin the enforcement of an execution against lands alleged to have been purchased by the plaintiffs at executor’s sale, the execution debtor being a son of the testator, and not having been made a party defendant to the proceeding to sell, before the court can indulge the presumption against the title of the plaintiffs, the pleading should state a defense not only as against the parties to the action, but as against every imaginable circumstance, and every possible conjecture or surmise.</p> <p>Exemption prom Execution. — Answer of. — Necessary Allegations. — An answer setting up the right of exemption must show that the cause of action is based upon a contract express or implied, the general allegation of the existence of such right not being sufficient.</p>

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

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

<p>Wi uh. — Construction of . — Precatory Trust. — Devisee to Pay Certain of Proceeds of Sale of Devise to Another. — Diability of Devisee. — Where a tes- ' tator devised certain real estate to A., providing that when A. sells or disposes of said realty she may pay to B. or her guardian, out of the proceeds of the sale, the sum of §1,000, and bequeathed all personal property to A., the proper construction to be placed upon such devise, considering the will as a whole, is that it was the intention of the testatrix to give to B. §1,000 out of the proceeds of the sale of said land; but A. could not be made personally liable to B. for such sum until the funds with which to pay it had come into her hands, and she refused payment, upon proper request to do so; and, in such event, the personal liability could not exceed the sum in her hands.</p> <p>Quaire, could A. be compelled, in a proper proceeding for that purpose, to sell the land devised to her to raise the necessary fund out of which to pay B.?</p>

<p>Pleading. — Attack on Final Order or Judgment, How Made. — Notice.— Waiver. — Where a final order or judgment is assailed because jurisdiction of the person was not acquired, it is proper to attack such proceedings by complaint; and the complaint in such action, where the defect as to jurisdiction is want of notice, need not show that there was not a waiver of notice.</p> <p>Same. — Sufficiency of Complaint on Appeal. — Where a complaint is not objected to in the trial court, it will be sufficient on appeal, if it states a prima facie cause of action sufficient to bar another action.</p> <p>Estoppel. — Bitch Assessment.— Knowledge of Land-Owner. — Want of Notice. — Action to Set Aside Assessment. — When Estopped. — Where a land-owner has full knowledge that officers and parties are in good faith acting upon the assumption that proceedings in which a special ditch assessment was made are valid, he is estopped to deny the effectiveness of such proceedings on the ground that he had no notice, if he lies silently by without objection until the improvement is completed or considerable sums of money are expended upon it. But such estoppel can not be created by bare intendments; the facts constituting such, estoppel must appear with precision, clearness, and fullness.</p>

<p>Gbavel Road. — Purchase of Toll Boad. — Action to Enjoin Levying of Tax ' .to Pay for.— When Plaintiff is Estopped to Deny Constitutionality'of Law. — Where a resident voter and taxpayer of a township brought suit to enjoin the board of commissioners of the county from levying a tax to pay bonds issued by the county in payment for a toll road purchased under the provisions of the statute, Acts of 1889, p. 276, alleging the unconstitutionality of the act, the plaintiff having delayed bringing the suit until the road had been conveyed to the \ county and made free, and until the county had paid the purchase- ' price, and having received all the benefits contemplated by the law, he is estopped from denying the constitutionality of the statute.</p>

<p>Bailroad. — Consolidated Company. — Liability for Obligations of Original Company. — Complaint.—The corporation into which railroad companies become merged as a consolidated company succeeds to the rights and privileges, and assumes and becomes liable for the debts and obligations of the original companies, and a complaint based on such liability for tort need not contain the articles of consolidation.</p> <p>Evidence. — Condition of Injured Person. — Expressions of Suffering.— Where action is brought to recover damages for personal injuries, it is proper to prove the condition of the injured person, and, also, to prove declarations or expressions of present pain or suffering as a result of the injury.</p>

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

<p>Judgment. — Beview of. — Nature of. — A proceeding in review of judgment for error of law is in the nature of an appeal, and must be tried by the record alone, the court which originally tried the case sitting as an appellate court in the review; and the only errors which can be considered on review are such as might have been tried on appeal to this court.</p> <p>New Trial. — Motion for. — Time of Making. — Where a verdict in a case was rendered December 17, 1889, and on the 26th day of December, 1889, judgment was rendered thereon, and it being the last day of the term, the court adjourned, and no offer being made to file a motion for a new trial until the next term of court, and no agreement for the extension of the time for filing such motion having been made and entered of record, it was too late to make such motion at the ensuing term of court, the adverse parties objecting thereto.</p> <p>Harmless Error. — Overruling Demurrer to Paragraph of Complaint.— Where the special verdict in a cause shows that the finding is based upon the first paragraph of complaint, the fact as to whether the court erred in overruling a demurrer to the second paragraph will not be reviewed on appeal, the error, if any, being harmless.</p> <p>Same. — Sustaining Demurrer to Answer. — Same Facts Provable Under . General Denial. — In an action for damages by an employe because of personal injuries, it was not error to sustain a demurrer to a paragraph of answer alleging that the injury was done during the noon hour, that alone not being sufficient to show that he was not in line of duty; and since the complaint alleged that he was on duty at the time of the injury, the negative thereof could have been proved under the general denial, which was pleaded.</p> <p>Employer and Employe. — Employe of Tender Tears. — Duty to Instruct. —It is the duty of one who employs a person of tender years and inexperience in any occupation attended with danger, especially where- there is extra hazard, to give his employe timely caution, and make him aware of the risks which he undertakes.</p> <p>Special Verdict. — Personal Injury to Minor.— IVhen Entitled to Compensation for Expenses of Sickness. — It is not objectionable in a special verdict that it finds that the plaihtiff, who was a minor, was at an expense of $200 for medical and surgical attention, it appearing from the finding that plaintiff had no means of support but his daily labor, from which fact it must be presumed that he was without parental support and he himself entitled to compensation for the expenses of his sickness.</p> <p>Amendment of Pleading. — Presumption of on Appeal.— Variance.— Where there is a variance between the case made by the pleadings and that made by the proof, and the pleading could have been aniended so as to correspond with the proof, such amendment will be presumed, on appeal, to have been made.</p>

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

<p>Evidence. — Objections to. — Sow Made. — Where objection to evidence is that it is “immaterial, irrelevant and incompetent,” such objection is too general and indefinite, and no question can be raised thereby on appeal. •</p> <p>Same. — Tax Duplicate. — When Admissible. — Tax Beceipts. — A certified copy of the tax duplicate is not proper'evidence of the value of the property taxed for purposes other than taxation; neither are tax receipts admissible to prove values.</p> <p>Instkuctions to Juky. — Limit in Application of Evidence. — In an action to quiet title to real estate, an instruction given by the court limited the application of the evidence of the condition of the estate to a ' determination of the one question, as to what was included in an alleged settlement and compromise. In view of the fact that there was evidence introduced by both parties as to the value of the estate, such instruction was not erroneous.</p> <p>Same. — Erroneous.— When will not Worlc a Beversal. — Correct Verdict.— Where a verdict is correct upon the evidence, a cause will not be reversed upon an erroneous instruction.</p>

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

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

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

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

<p>Elections. — Contest of. — Notice.—Requisites of. — When an election is contested, if the contest is in the commissioners’ court the notice of .contest must state the time and place of contest; while if the contest is in the circuit court, the notice of the time and place of contest need not be stated, as the law determines that.</p> <p>Same. — Costs of Contest. — Prevailing Party Entitled to. — Where an election is contested upon issues joined, the prevailing party is entitled to a judgment for costs.</p> <p>Assignment of Errors. — Cross-Assignment.—When Objection too Late. —Objection to cross-errors, relating to the manner and time of making them, comes too late when made as a cause to modify the judg- . ment.</p>

<p>Railkoad. — Master and Servant. — Assumption of Dangers Incident to Service. — Construction Train. — Co-Employe. — Personal Injury. — Where a servant employed to work upon a construction train upon a railroad track half finished, in the service of delivering ties along said track, and, while thus engaged, said train loaded with ties and running at the rate of fifteen or twenty miles an hour was derailed, injuring said employe, the railroad comqpany was not liable to said servant in damages, such accident being one of the dangers incident to the service, the perilous condition of the road being equally obvious to both master and servant; and the engineer being a co-employe with the injured servant, the company would not be liable for any negligence on the part of the engineer contributing to the injury.</p> <p>Same. — Employe.—When of Sufficient Discretion. — In such case, the employe, who was about nineteen years of age, could not be said to be void of sufficient discretion to comprehend the dangers of the business in which he was engaged.</p>

<p>Highway. — Order Locating. — When Void.— Width an Essential Element. — Injunction.■—The petition for the location of a highway does not necessarily contain a description of the width of the proposed road, and it can not he presumed that it did contain it; and an order locating and establishing a highway giving no other specification of the width than by reference to the petition, viz: “It is ; ordered by the board that a road be established and opened as prayed for in the petition in this case,” is not in compliance with ; the statute, and is void, and its enforcement may be enjoined.</p>

<p>Instructions to Jury. — When Error to Give Oral Instruction. — Reading from Book. — Request for Written Instructions. — Where, at the proper time, the court was requested to give its instructions to the jury in writing, and the court gave its first instruction partly in writing and partly orally, by reading to the jury a section of the statute, the action of the court, in giving part of its instruction orally, was erroneous, and will amount to reversible error, unless this court can know that the result reached by the jury and the court was correct. But in such a case the court may copy into an instruction selections from the statute or other authorities, and read them as a part of the written instructions.</p>

<p>Moetgage. — School Fund Mortgage. — Married Woman.— When can not Set up Suretyship for Husband in Defense. — A married woman, who signs the statement required by statute to obtain a loan of the school funds, can not avoid a repayment of the loan, on the ground that she signed the statutory note and mortgage as surety for her husband.</p> <p>Same. — School Fund Mortgage. — Married Woman. — In such case, such married woman alone signed and swore to the statement of her title, and she and her husband both signed the statutory note and mortgage, and the auditor issued the warrant payable to her alone, and the money was paid to her. If she lost it by paying it over to her husband, it was the result of her own folly, for which the State is not responsible.</p>

<p>Criminal Law. — Rape.—Verdict.—Evidence.—Resistance Offered. — That the verdict is sustained by the evidence, see opinion.</p> <p>Same. — Rape.—Resistance.—Instructions to Jury. — In an action for rape, where the accused was charged of committing such crime upon the person of a child but little above the age of consent, who, that she might be cured of epilepsy, was placed in charge of the accused, who professed to cure by charms, the child being weak-minded and inexperienced, and for the purpose of treatment yielded herself implicitly to the accused, it was not error for the court to refuse to instruct the jury that “the prosecuting witness ought to have made an outcry that'would have waked her parents up stairs.”</p> <p>Deposition. — Motion to Suppress. — Wien Rightly Sustained. — Criminal Law. — A motion to suppress a deposition in a criminal case was ’ rightly sustained, where the order of the court directed that such deposition should be taken at a certain place, and the certificate of the notary shows that it was taken at another place, and the notice leaves it uncertain at which place it was to be taken.</p> <p>Witness. — Gross-Examination of. — When Permitted. — A witness for the plaintiff can not be cross-examined after plaintiffs case is closed, without the consent of the plaintiff and of the court.</p>

<p>Criminal Law. — Indictment.—Defeats Cured by Verdict. — Where an indictment or an information contains all the essential elements of a public offense, but is defective by reason of uncertainty and imperfection in the manner of describing the offense charged, such indictment or information will be held good after verdict, though it might have been quashed on motion to that effect.</p> <p>Same. — ■Murder in Second Degree. — Charge, Mow Made. — “ Without Premeditation." — An indictment for murder in the second degree is sufficient if it alleges that the crime was committed feloniously, willfully, purposely, and maliciously, without alleging that the crime was committed without premeditation.</p> <p>Same. — Attempt to Commit a Felony. — Certainty of Charge. — No greater certainty is required in describing a felony which an accused attempts to commit, than is required in case the felony had been actually committed.</p>

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

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

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

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

<p>Supreme Court Practice. — Verdict.—Sufficiency of Evidence to Sustain.- — Buie as to. — Appeal.—It was never intended by the expression, that “the verdict, on appeal, can not be disturbed in this court when the evidence tends to support it,” to hold that less than sufficient legal evidence to establish the issues, or the truth of the verdict or finding, would suffice, excluding from consideration all evidence conflicting therewith. If the evidence, besides merely tending to support the verdict, be such that if every fact proved, and every fact which could be logically and reasonably deduced therefrom, were admitted to be true, and these facts embraced every fact essential to the existence and truth of the verdict, then, and not until then, is the evidence sufficient to support the verdict, no matter how great the contradictions to that evidence.</p> <p>Evidence. — -On Former Trial. — When can be Considered on Subsequent Trial. — Where, upon a second or subsequent trial, the testimony of a witness on the former trial is supposed to have a bearing on the credibility of his testimony on the pending trial,' it is incumbent upon the adverse party to introduce proof of such former testimony, for not until then can such evidence be considered.</p> <p>Same. — Incompetent Evidence. — Motion to Strike Out. — When not Available Error. — A party can not sit by and allow improper testimony to go to the jury, and then make the court’s refusal to strike it out available error.</p> <p>Instructions to Jury. — Befusal to Give. — Embraced in Other Instructions Given. — -Correct in Part Only. — It is not error to refuse to give to the jury an instruction correct in point of law and applicable to the evidence, if other instructions be given embracing the substance of the one refused; neither is it error to refuse to give an instruction if a part of it is incorrect, though the most of it be correct.</p> <p>Pleading. — Appeal.—Supreme Court Decision. — Law of the Case. — Buling on Complaint. — Where a complaint has once been held good on appeal, it can not thereafter, in another appeal of the same case, be questioned, as the former decision becomes the law of the case on the points ruled on throughout all its subsequent stages.</p> <p>Negligence. — Injury. — Combined Causes. — Liability in Damages. — • Where two causes combined result in an injury, one of which was the negligence of the defendant, and the other an accident for which neither the plaintiff nor defendant are responsible, the defendant will be liable in damages.</p>

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