Volume 138 — Indiana Reports

<p>Special Finding. — Omission of Material Fact. — Pemedy.—Practice.— Where a special finding omits material facts, the remedy is by a motion for a new trial and not by a motion to modify.</p> <p>Fraudulent Conveyance. — Husband and Wife. — A husband who has paid out money for the betterment of his wife’s real estate, and who, for the purpose of defrauding her creditors, joins her in making conveyances whereby the title is placed in himself and wife by entireties, can assert no claim thereon as against the creditors sought to be defrauded.</p>

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

<p>Surety of the Peace. — Sufficiency of Affidavit. — Fear of Personal Injury. — An affidavit for surety of the peace, of the following tenor, is sufficient: A, being duly sworn, on his oath says that he has just cause to fear, and does fear, that B will kill and murder him, and that he makes this affidavit only to secure the protection of the law, and not from anger or malice.</p> <p>Same. — Affidavit Sworn to Before Notary Public. — An affidavit for surety of the peace may be sworn to before a notary public.</p> <p>Same. — A Criminal Action. — Nature of. — Preponderance of Evidence.— While a prosecution for surety of the peace is a criminal action, yet it is simply for the prevention of crime, the only question to be decided being whether the prosecuting witness has just cause to entertain the fears expressed in his affidavit, which is to be decided by the preponderance of the evidence.</p> <p>Same. — Seasonable Doubt. — Province of Jury. — The doctrine of reasonable doubt has no place in such an action, nor is the jury the judge of the law.</p> <p>Same. — Procedure.—Pailure of Defendant to Testify. — Instruction to Jury. — In such case, the following instruction was correctly refused: “This case is governed by the law governing criminal cases, except where the law provides otherwise. If the defendant did not testify in his own behalf, you can not take this fact into consideration, nor talk about it in the jury room.”</p> <p>Same. — Evidence of Communication of Threats. — It was not error to permit the complaining witness to testify that certain persons told him, in the absence of the defendant, that the defendant threatened to kill Mm and to do Mm other injuries, where the evidence is not in the record; for it must be presumed that the threats were also proved.</p> <p>Same. — Misconduct of Counsel. — Argument to Jury. — Where, in his argument to the jury, the State’s attorney said the following: “Gentlemen of the jury — The defendant did not go on the witness stand and testify in this case. He knew we had his neighbors in the court, and that we would impeach him if he did testify.” Also, “If * * the complaining witness did swear to a lie, as Mr.-says he did, why did the defendant not call his neighbors, who are here in court?” And, also, “We have an illustration of permitting cranks to run at large, in the killing of Carter Harrison, the mayor of Chicago, the most outrageous murder of our time. Had the murderer been placed under bonds, that murder would not have occurred.” Such remarks were beyond the bounds of legitimate argument, and being sanctioned by the court, amount to reversible error.</p>

<p>Instructions to Jury.— Filing. — Bill of Exceptions. — Instructions which are brought into the record by a general bill of exceptions are only required to be filed in and as a part of such bill.</p> <p>Master ash Servant.' — Bailroad.—Incompetent Employe. — Negligence. —Injury to Fellow-Servant. — The fact that a fireman, who has occasionally served as engineer in a switch yard, is placed in charge of an engine to do switching, is not sufficient in itself to charge the railroad company with negligence, in an action by a fellow-servant to recover for an injury alleged to have been sustained by reason of the incompetence of such person.</p> <p>Same. — Employment of Servant. — Knowledge as to Fitness. — In an action by a servant to recover for an injury alleged to have been caused by the negligence of a fellow-servant, the fact that the latter had been employed only a few hours prior to the injury and that he had been secured from the same branch of service of another company without inquiry as to his fitness, is not in itself sufficient to charge the defendant company with negligence.</p> <p>Same. — When Case May be Withdrawn From Jury. — It is the duty of the trial court to take the case from the jury, upon proper request, when any element essential to the finding of the fact in issue has not been proved, or when there is no evidence from which, when undisputed, the jury would be justified in concluding that such fact exists.</p>

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

<p>Administrator. — Court Control of. — May be Ordered to Dismiss Action. ■ —Costs.—Legacy.—Distribution.-—Foreclosure of Mortgage. — It is within, the power of the circuit court, having probate jurisdiction, to order an administrator with the will annexed to dismiss a suit in another court to foreclose a mortgage against legatees, upon a showing by the latter that the debts of the estate are paid; that the same is ready for final settlement; that the mortgage debt is less than their share, and that they are willing to accept the amount of such debt upon distribution; and if it appears that the suit was wrongfully brought, it may be ordered dismissed at the administrator’s costs.</p>

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

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

<p>Guardian and Ward. — Guardian Pitying Certificate of Purchase.— When Seld in Trust. — Where it is the duty of a guardian to protect his wards’ interest by buying a certificate of purchase, and he makes the investment for himself, he will be held as their trustee, and all benefits derived from such purchase will inure to the benefit of the wards.</p> <p>Same. — Guardian Assuming Position Antagonistic to Wards’ Interest.— When Seld a Trustee. — Reimbursement.—Wherever a guardian assumes a position in relation to his wards’ funds, by which he puts his personal interest in conflict with theirs, or acquires any interest or title adverse to that of his wards, he will not, whether he intended any fraud or not, be permitted to retain the advantage, but the same will inure to the benefit of his wards, and he will hold what he has acquired, in trust for them, subject only to his right to be reimbursed for what he has invested.</p> <p>Same. — Mortgage Deed Seld by Guardian. — Junior Lien Seld by Wards. —Right to Redeem. — Where a guardian purchases a certificate of sale of lands on a senior lien, on which his wards hold a junior lien, and takes a deed therefor in his own name, in the nature of a mortgage, for the purpose of holding it as, additional security for the money advanced by him in the purchase thereof, until such time as he might repay himself out of the funds of his wards, but in his final report and settlement he made mention of the certificate and deed, but took credit for the junior mortgage, which he turned over to his wards, the wards have a right to have the deed to the guardian set aside and to redeem from said sale. The fact that the guardian at no time liad sufficient funds of Ms wards with, which to reimburse himself for the purchase-money, could not preclude the wards from redeeming, nor could it defeat a constructive trust.</p> <p>Same. — Bight of Wards to Bedeem.— Tender of Bedemption Money.— Bents and Profits. — And in such case it is unnecessary to allege that . the redemption money was tendered to the guardian, where it is alleged that he has been more than paid by the rents and profits by him received.</p> <p>Same. — Final Settlement. — When does not Preclude Bight of Wards to Bedeem. — Bes Adjudicata. — In such case, the wards were not precluded from their right to redeem, by the judgment of final settlement, such matter not being involved in, the final settlement, and it not being necessary to set aside such report before proceeding to redeem.</p> <p>Same. — Arrangements Between Guardian and Ward Soon after Ward Becomes of Age. — The conduct and all arrangements between guardian and ward soon after the ward has become of age will be closely scrutinized.</p> <p>Statute of Limitations. — Guardian and Ward. — Constructive Trust.— Action to Enforce. — An action to enforce a constructive trust growing out of a fiduciary relation (guardian and ward), the act (the claim of adverse title) complained of being poispnous in its conse- - quences, the suit can only be barred by the fifteen years’ statute of limitations, which would begin to run when the guardian was discharged from his trust and began to claim title absolute in himself adversely to the trust.</p> <p>Variance. — Complaint and Proof. — When Immaterial. — A variance between the complaint and the evidence is immaterial where the complaint might have been amended so as to cure it, after the evidence was all in; and such amendment will be presumed.</p> <p>Evidence.— Value of Bents and Improvements. — How Proven. — Where the facts sought to be elicited is the rental value of lands and the value of improvements, the proper test is, on the’ one hand, what was the rent of the place really worth? and, on the other, what is the reasonable value of the improvements made? Not. what rent was actually received, and what the improvements cost.</p> <p>Same. — Offer to Prove. — Specific Statement. — An offer to prove will not be available unless the facts sought to be elicited are specifically stated.</p> <p>New Triad. — As of Bight.— When nót Demandadle. — A new trial as of right is not obtainable where the cause proceeded to judgment on the entire complaint against the defendant, as to one of the paragraphs of which a new trial as of right was not demandable; notwithstanding such an issue was raised by the cross-complaint, to which the judgment makes no reference.</p>

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

<p>Taxes. — State Board of Tax Commissioners. — Original Jurisdiction. — Extent of Authority to Order Addition. — The State Board of Tax Commissioners has no original jurisdiction to revise individual tax lists other than railroad property and the equalization of assessments of real estate; and not having the power themselves, they can not order an addition to be made by the county auditor.</p> <p>Same. — Addition to Assessment by County Auditor. — Notice.—The county auditor has no power to add to an assessment without giving the property owner written notice of his intention so to do.</p> <p>Constitutional Law.— When Constitutional Question will not be Passed XJpon. — Practice.—A constitutional question will not be passed upon unless necessary to a determination of the merits of the case.</p> <p>Parties.— Taxes. — Action to Enjoin. — County Commissioners. — In an action to enjoin the collection of taxes, the county commissioners are proper parties along with the county treasurer.</p>

<p>Description. — Seal Estate. — Omission of State. — Parol Evidence.— Judicial Notice. — Where the description of land is complete in every respect, except the county and State wherein the land is situated is omitted, the description being by section, township and range, the court takes judicial notice that there could be but one such description in this State, the fact that the land is located in this State may, under proper averments in the complaint to that effect, be proven by parol. .</p> <p>Contract. — Agent.-^-Parol Authority to Sign. — Parol Evidence. — Specific Performance. — Where a contract for the sale and conveyance of land is made, and signed by one person (A) as owner, and the complaint for specific performance discloses the fact that the land was held in common by A and several others, and alleges that A signed the contract for himself and for such other owners as their authorized agent, the authority of A to sign the contract may be proven by parol.</p> <p>Practice. — Judgment Based on One Paragraph of Complaint. — Rulings on Other Paragraphs Not Available Mrror. — Error can not be predicated upon a paragraph of complaint, where the special findings show that the judgment is based upon another paragraph óf the complaint.</p> <p>Estoppel. — -Contract.-—Real Estate. — Conveyance.—Waiver.—Where a grantee of real estate procures the conveyance to be made in a manner different from that stated in the contract for conveyance, he can not thereafter object that the contract in that respect was not complied with.</p> <p>Harmless Error. — Sustaining Demurrers to Paragraphs of Answer.-— Same Facts Probable Under General Denial.— Sustaining demurrers to paragraphs of answer is not available error, if error at all, where the same facts are provable under the general denial, which is pleaded.</p> <p>Title. — By Adverse Possession. — A Marketable One. — Quieting Title.— Title by adverse possession is as high as any known to the law, and is a marketable title, and a decree quieting the title is only a confirmation of the title so held.</p> <p>'Special Finding. — Motion to Strike Out or to Make More Specific.— Practice. — New Trial. — A motion addressed to a special finding, either to make more specific or to strike out, etc., is not authorized by any rule of practice, the remedy for any such defects being by motion for new trial. •</p> <p>Judgment. — Form Not Objected to in Trial Court. — Supreme Court Practice. — Where no motion to modify a decree was made in the trial court, the form of the decree can not be objected to on appeal.</p> <p>Parties. — Defendant. — Specific Performance. — Contract.—Conveyance. —Where A entered into a contract with B to convey to him certain lands, and upon request of B, A made the deeds to both B and his wife, and tendered the same to B, which were refused, the wife was not a necessary party defendant in a suit for specific performance.</p>

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

<p>Deed. — Conveyance to School Township for School Purposes. — Implied Condition. — Beversion.-— Title. — Where land is conveyed by warranty deed to a school township, “for the use of the common schools,” without any expressed condition, there is no implied condition by which the property would revert to the grantor, upon a mere nonuser of the same for school purposes, the title being as good as could be made to a school township.</p> <p>Same.- — School Property.— Township Trustee. — Negligence.—Forfeiture. —Any negligence or inattention to duty on the part of the school trustee could not work a forfeiture of the property, of which he had but temporary charge.</p> <p>Same.- — -School Property. — Relocation of School-House. — Abandonment. —The locating of the school-house on different ground, and the using of the old school-house and grounds for public meetings, the house being supplied for such purpose with temporary-seats by the trustee, do not amount to an abandonment of the premises.</p> <p>Same. — Construction by Parties. — -When will not Prevail.— Common Schools. — A construction placed on a deed by the parties, where it is a conveyance to a school township, for the use of the common schools, will not prevail over the plain terms of the deed which is in strict compliance with the statute.</p> <p>Parties.— School Township. — School Town.— School Property.— A school town is a proper party in an action affecting property which it acquired by accession, from the school township, by reason of its incorporation.</p>

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

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

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

<p>Mechanic’s Lien. — Purchaser of Beal Estate. — Liability of. — Complaint. —A complaint to enforce a mechanic’s lien under the act of 1883 is sufficient as to a purchaser of the real estate if it shows that the furnishing 'of materials commenced prior to the transfer.</p> <p>Same. — But a complaint against A to enforce a mechanic’s lien, which shows that the contract was made with B prior ,to a conveyance of the land to A, is bad if it fails to show that materials were furnished or labor done while the title was still in B.</p> <p>Same. — Failure of Purchaser to Becord Peed. — Notice.—The right to assert a mechanic’s lien is not affected by the failure of a purchaser of the real estate to have his deed recorded, whereby notice of the transfer is not acquired until after the work is begun.</p> <p>Same. — Sufficiency of Notice.- — Time of Completion of Work. — Pleading. —A general allegation that notice of intention to hold a lien was filed “within sixty days after furnishing the material and doing the work” is sufficient under the statute and is not controlled by special averments showing that the work was submitted to inspection and test at an earlier day, if it also is shown that defects were thereby disclosed which postponed its actual completion to the date alleged.</p>

<p>Waiver. — Filing Amended Paragraph After Demurrer Sustained to Original.- — Practice.—The filing of an amended paragraph of answer after the sustaining of a demurrer to the original paragraph, amounts to a waiver of the ruling on demurrer.</p> <p>Pleading. — Cross-Complaint.—Attorney’s Lien.- — Where a cross-complaint seeking to have an attorney’s lien declared on certain land does not allege that the notice of hen was entered within a reasonable time after the rendition of the decree, nor that the services were of any value, it is insufficient. ■></p> <p>Quaere, can an attorney’s lien be enforced in a suit to enjoin the enforcement of a supposed legal lien by execution?</p> <p>Judgment. — -Objection to Form, Sow Made. — Waiver.—Practice.—-Objection to the form of a judgment should be raised by motion to modify, and when not so raised, it is waived.</p>

<p>Beformation of Instrument. — Deed.—Decision, When not Contrary to Law. — The findings and conclusion of the court effecting a reformation of a written instrument (a deed), are not contrary to law, where it appears, not only by the preponderance of the evidence, but to a moral certainty, that words (a reversionary clause), by mutual mistake, were omitted therefrom, materially altering the effect of the instrument. For the evidence, see opinion.</p>

<p>School Township. — Teacher. — Contract. — Mistake.—Reformation.— A contract for the services of a teacher in the public schools of a township, which, as written and signed, appears upon its face to be between the teacher and the civil township, may, in an action thereon against the school township be reformed upon allegations of mutual mistake, and enforced against the latter corporation.</p> <p>Same. — Reformation of Contract. — Demand.—Where the only relief sought is the reformation of a contract, a previous demand for a correction is essential; but where, in addition to the reformation, a recovery is asked, no prior demand is necessary.</p> <p>Same. — Township Trustee. — Contracts of Predecessor. — Presumption as to Knowledge. — -An incoming township trustee is presumed to have come into possession of knowledge of all the affairs of his school township, and he can not ignore contracts made by his township through his predecessor, upon the ground that it is defective in form.</p> <p>Same.— Character of Contract. — Inquiry.-—A contract between a township, by its trustee, and a teacher, for the latter’s services, although on its face the contract is by the civil township, is sufficient to put a successor of the trustee upon inquiry as to the real character in which the outgoing trustee intended to, and did, contract.</p> <p>Same.— Trustee May Employ Teacher for Service Extending into Term of Successor. — A township trustee may employ a teacher for a school term which will be in the official term of his successor in the trust.</p> <p>Same-. — ■ Teacher's Contracts.— Limited by Available Public Eunds.— The nature of the service, and the public interests involved, require that contracts to teach public schools shall be construed to be so limited as to correspond with the public funds available.</p> <p>Same. — Offer of Different School.— Teacher Not Bound to Accept. — A teacher who has contracted with a township for a certain school is not bound to accept in lieu thereof an inferior school, which by reason of a lack of attendance is likely to be discontinued by the trustee at any time.</p> <p>Same. — In an action by a teacher upon a contract to teach a particular school, an answer that a different school was offered is avoided by a reply showing that another competent teacher had been previously contracted with for the offered school.</p> <p>Same. — Construction of Contracts of Public Officers. — The powers of a public officer to contract being prescribed by law, his contracts are presumed to have been executed in the capacity corresponding with the official duty the officer ought to perform respecting the subject-matter in hand.</p>

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

<p>Common Schools. — Township Trustee. — Enumeration Beport. — When-Binding on Superintendent. — The enumeration made by a school trustee, of children who are of school age in his township, when properly and regularly reported, is binding and conclusive on the county superintendent, and he must make it the basis of his report to the State superintendent.</p> <p>Same. — County Superintendent. — Beport of. — Mandamus.—Statute Construed. — Parties Plaintiff. — The duties required of the county superintendent by the provisions of section 4431, E. S. 1881, are ministerial only, and he maybe compelled, by mandate, to perform them, and in such case the trustees are proper parties to enforce the performance.</p> <p>Same. — Township Trustee.- — Enumeration Beport.- — Statute Construed.-— The provisions of section 4430, E. S. 1881, in so far as they affect township trustees, are penal, and apply only where the trustee has failed to file any report, and have no application where a report in proper form, duly verified, has been filed.</p>

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

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

<p>Trust. — Husband and Wife, — Personal Property. — A husband who receives from his wife a deposit of money belonging to her separate estate, and uses it for his own purposes, becomes charged as trustee of the money, and his heirs are liable to account to the wife.</p> <p>Same. — Resulting Trust in Land.— When it Does Not Arise. — To create a resulting trust in land, under the second clause of section 2976, E. S. 1881, in favor of a wife by reason of the use by .the husband, in part payment for the land, of money held, by him as her trustee, it must appear that the money was delivered by the wife prior to the purchase, -and under a contract by the husband to return the identical money when requested.</p>

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

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

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

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

<p>Divorce. — Affidavit of Residence, etc. — Before Whom Made. — In a divorce proceeding, the affidavit of residence and occupation, as required by the statute, may be made before any officer of the State authorized to administer oaths.</p> <p>Same.— Complaint, Sufficiency of. — Where the complaint alleges certain facts quite generally, which, upon motion, might have been made more specific, but others are specific as to acts of cruelty, the complaint can not be held insufficient.</p> <p>Same. — Residence, IIow Established. — Statutory Requirement Indispensable. — Judicial Notice. — Sufficiency of Evidence. — Where residence is proven by several witnesses, only two of whom appear to be freeholders, the residence of one of such freeholders not being disclosed, and the residence of the other being given as “Bainbridge, Monroe township,” the court will take judicial notice that the latter was a resident freeholder of this State, but can not do so as to the former; and as proof of residence, as required by the statute, can not be dispensed with, the evidence was not sufficient to sustain a finding for plaintiff.</p>

<p>Fraudulent Conveyance. — Complaint.—Recovery.—Necessary Allegations and Proof. — In an action to set aside a fraudulent conveyance, it must be both alleged and proven, before the plaintiS can succeed, that at the time of the conveyance, and at the time the suit was brought, the debtor did not have enough property left, subject to execution, to pay his debts.</p> <p>Same. — Insolvency at Time Suit is Brought to Set Aside Conveyance.— Relating Bach. — Presumption.—The fact that insolvency exists at the time suit is brought to set aside a fraudulent conveyance, does not raise the presumption that the insolvency existed prior to that time, and does not extend the insolvency back to the time the conveyance was made.</p>

<p>Appeal. — Dismissal.—When Prosecuted Under Decedent’s Act, When Under the Code. — Where an administrator petitioned for an order to sell land to satisfy an allowed claim secured by a lien on the land, and other creditors being made parties thereto upon their own motion, filed a cross-complaint to which the claimant was made a party, and issues being joined on the cross-complaint, the trial resulted in a judgment thereon against the claimant, setting aside and disallowing the claim, an appeal from such proceeding is governed by the decedent’s act; and if, in such case, an appeal is desired to be prosecuted after the expiration of the thirty days allowed by statute, leave must be obtained of the appellate tribunal, in accordance with the statute.</p>

<p>Pleading. — Answer, Sufficiency of.— Theonj. — Injunction.—An answer to a complaint in a suit, for injunction is sufficient where the conduct complained of is confessed, and the answer is justified by a theory sufficient, though different from that upon which complaint is made.</p> <p>Highway. — Established on Section Line. — Change of Course to Correspond with Partition Line. — Where a highway has been established upon a section line, public interests require that the highway should not vary its course to correspond with partition lines, and it matters not upon whose land it is located.</p> <p>Costs. — Overruling Motion to Betax. — When not Error. — There was no error in overruling a motion to retax all costs against defendants, where part of such costs were properly taxable against the plaintiff.</p>

<p>Injunction. — Insufficiency of Complaint. — Adequate Legal Remedy.— If a complaint for injunction does not show that the plaintiff would not have an adequate legal remedy for all injury he might suffer, it is insufficient on demurrer.</p> <p>Same. — Injury to Freehold. — Cutting and Removing Corn. — Landlord and Tenant. — -An injunction forbidding a tenant from cutting and removing stocks of com from a field cultivated by him as tenant, can not be justified on the ground that such cutting and removal would be an injury to the freehold.</p>

<p>Appeal. — Dismissal.—Failure to Page, Number Lines, and Make Marginal Notes. — When will not be Reinstated. — Where an appeal has been dismissed for failure to make marginal notes and for failure to . number the lines and pages, in accordance with rule 31 of this court, the appeal will not be reinstated where no excuse is shown for the noncompliance with the rule before dismissal.</p>

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

<p>Appellate Court. — Jurisdiction.—■Money Demand. — Where the amount in controversy on a money demand is less than $3,600, the jurisdiction, on appeal, is in the Appellate Court.</p>

<p>Practice. — Overruling Motion to Strike out Parts of Pleading. — When not Reversible Error. — The overruling of a motion to strike out parts of a complaint is not such error as will work a reversal where it is manifest that the moving party has not been prejudiced by the ruling.</p> <p>Same. — Refusing to Strike out Interrogatory. — No Answer Disclosed by Record. — -The defendant can not complain of the overruling of a motion to strike out an interrogatory propounded to him by the plaintiff, where the record does not disclose any answer to the interrogatory.</p> <p>Specific Performance. — Contract.—Conveyance of Land. — Statute of Prauds. — Part Performance. — Parties.—Consideration.—A entered into a written contract with B to convey to him certain land, and subsequently B executed a written contract to convey certain described parts of said land to C, in the event of a conveyance to him (B) under the terms of the first mentioned contract. By parol agreement of all the parties to the first two contracts and D, the first named tract (the tract to be conveyed from A to B) was to be conveyed to D, who was to perform the stipulation of said two contracts as to B. A conveyed the said land to D, but D refused to comply with the terms of the contract by which the conveyance to 0 was to be made. C brought suit against D for specific performance.</p> <p>Meld, that, as between B and C, the two written contracts entered into and formed the basis, as one, of the transactions.</p> <p>Meld, also, that as between B and C, there was a full performance on the part of B and his obligor, A.</p> <p>Meld, also, that the suit for specific performance was not barred by the statute of frauds.</p> <p>Meld, also, that C was a proper party to enforce performance by D.</p> <p>Meld, also, that the receiving of valuable consideration by D from B for assuming the performance, is sufficient consideration to support the promise of D.</p>

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

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

<p>Real Estate. — Description.—Quantity.—Metes and Bounds. — It is only-in the absence of monuments, courses and distances that the quantity of land named in a deed will govern.</p> <p>Same. — Description.—Metes and Bounds. — Adverse Possession. — Bjectment. — "Where the evidence does not expressly show any adverse possession of lands beyond the metes and bounds fixed in the deed, the metes and bounds must control in a possessory action.</p> <p>Ejectment. — Recovery.—Issues Formed by General Denial. — Relative Strength of Title. — Where the complaint in an action for ejectment is answered only by general denial, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the alleged weakness of his adversary’s title.</p> <p>Title. — Color of Title. — Adverse Possession. — Where there is no color of title there can be no constructive possession, and consequently no ripening of title into ownership.</p>

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

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

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

<p>Township Trustee. — Insurer of Public Funds. — Deposit.—Failure of Bank. — A township trustee is an insurer of the safety of the public funds in Ms charge, and is bound to account for money lost by the failure of a bank in which the funds are deposited, even though’ he be without fault.</p> <p>Same. — Statute.—Public and Private. — For Belief of Tmstee. — Constitutional Law. — An act of the Legislature providing for the reimbursement by a township of a trustee who lost public funds by the failure of a bank, and which is not declared to be a private statute, is, under section 27, article 4 of the constitution, a public law.</p> <p>Same. — Taxation.—Private Use. — A public statute which is intended to, and in effect does, so tax an individual as to take private property for private use is not valid.</p> <p>Same.— Taxation for Belief of Trustee. — Beimbursement of Fund by Trustee.- — Where a township trustee makes up from, his private means school funds of the township lost by the failure of a bank in which they were deposited, he has no legal right to a return of the money so paid by him, and a statute for his relief directing his successor in the trust to repay such money, to do which it is necessary to levy a tax upon the people of the township, is unconstitutional.</p> <p>Same. — State School Funds. — Loss by Bank Failure. — -Taxpayers of Township not Liable. — Where State school funds, coming into the hands of a township trustee for common school purposes, and not raised by taxation upon the township, are lost by the failure of a bank in which the trustee has deposited them, the Legislature has no power to impose upon the taxpayers of such township the burden of making good the loss.</p> <p>Same. — Act to Believe from Judgment. — Impairment of Obligation of Contract. — Belief of Public Officer. — A legislative act seeking to release a township trustee and his bondsmen from liability on a judgment rendered against them on account of public funds lost in a failing bank, is void under section 24 of the Bill of Eights, as impairing the obligation of a contract, and for the additional reason that the Legislature has no power to reimburse a public officer for money lost by him in his official capacity.</p>

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

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

<p>Judgment. — Fraud in Obtaining. — Necessary Showing in Application for Belief. — A party who seeks relief from a judgment alleged to have been obtained against him by fraud must show in his application that he has a meritorious defense which he was prevented from making, that he was not guilty of laches in failing to prevent or discover the fraud, and that he seeks relief promptly after making the discovery.</p> <p>Same. — Unauthorized Appearance by Attorney. — Bemedy.—Injunction.— Belief by a defendant against a judgment obtained through the unauthorized appearance of an attorney should be sought in the original cause by way of an application therein for a stay of proceedings and a hearing upon the merits, and not by way of a collateral proceeding for an injunction.</p>

<p>Mortgage. — Of Building. — When Gh'ound Included. — A mortgage written and executed in the form of a real estate mortgage, but describing thejroperty as “one one-story frame building store-room, situate on lot nuteiber forty-two, in block number tbirty-four in the original ^ plat of the' town of Kirklin,” includes not only the building but also that part of thé-lot upon which the building stands, and as much more as is necessary to the use of the building as a place for the sale of merchandise.</p>

<p>Fugitive. — Arrest and Detention Upon Telegram. — Habeas Corpus.— Insufficient Setwn. — To a writ of habeas corpus directed against a police officer and the county sheriff, the defendants made return that the police officer arrested the petitioner and delivered him into the custody of the sheriff for commitment; that he did so upon a telegram from H., the chief oí police of Portland, Oregon, to the efEect that the latter held a warrant for the petitioner upon a charge of forgery, and directing the arrest; that after the arrest H. sent to the officer, by telegraph, a copy of a warrant issued to and held by H. for the petitioner’s arrest; that H. had sent a further tele- . gram that he had started, with proper papers, for the petitioner; that defendants believed the petitioner guilty of said crime, made the arrest in good faith and believed that H. was en route to procure the petitioner’s extradition.</p> <p>Held, that the return is bad.</p>

<p>Deed. — Conveyance to Gh’antee’s “Heirs.” — When Void for Uncertainty. —A deed purporting to convey real estate “to Francis Carrico’s heirs,” Francis Carrico being alive, is, in the absence of words showing that the grantor intended the term “heirs’^to mean “children,” void for uncertainty, and upon the death of the grantor, without further alienation, the real estate descends to his heirs.</p>

<p>Constitutional Law.— Unexpended Balance of School Revenue, in Hands of School Corporations.- — Act of March 3d, 1893. — Statute Construed. —The act of March 3d, 1893 (Acts 1893, pp. 195-6), providing “that any school corporation not expending the sum total of the tuition revenue apportioned to it by the State, shall, on the first Monday in July annually, report to and return to the county treasurer of the county in which said school corporation is situated, the unexpended balance .of tuition revenue from said source in excess of $100, and the county auditor of said county shall include all such unexpended balances in his report to the State Superintendent of Public Instruction, as revenue collected in his county and ready for distribution at the next apportionment,” and providing a penalty, is constitutional and valid.</p> <p>Same. — Validity of Act. — Scope of Consideration. — With the justice, the propriety, the policy, the advisability or desirability of a statute, the courts can have nothing whatever to do, so long as the act does not infringe some provision of the constitution, State or Federal, or some valid treaty or law of Congress.</p> <p>Common Schools. — School Revenue. — Distribution.—Control and Title Remain in the State. — School Corporations Aijents of the State. — The distribution of school revenue to the school corporations of the State does not change the title or ownership of the money. The persons to whom the money is entrusted, and to whom it is delivered, hold it as the agents of the State, and the State does not lose its control over it until it is paid out for tuition purposes.</p> <p>Parties. — Plaintiff.—State, ex rel. Attorney-General. — School Revenue. — Unexpended Balance.— Township Trustee. — Action.—An action to recover the unexpended balance of- tuition revenue, in excess of $100, in the hands of a township school trustee, which he has neglected or refused to pay over to the county treasurer, is properly brought in the name of the State on the relation of the Attorney-General.</p> <p>Demurrer. — Defeat of Parties Defendant.' — Failure to Designate Proper Parties.— Waiver. — Where a demurrer on the ground of defect of parties defendant does not designate the proper parties, the demurrer is insufficient in form, and the objection is thereby waived.</p>

<p>Railroad. — Negligence.—Personal Injury. — Proximate Cause. — Pernote Cause. — Concurring Causes.- — Fellow-Servant Pule —Defective Headlight. — Collision.—A, as engineer, was in charge of engine No. 172, which he was required to operate with a defective headlight. A had special orders to stop at S, and remain until No. 167 passed. A stopped at S, but in violation of such order pursued his journey with the defective engine, before No. 167 had passed. After leaving S two and three-quarter miles, and having observed the approach of No. 167, A stopped his engine when one and a quarter mile distant from No. 167, there being upon the front of No. 172 two green lights burning brightly, and on board were handlamps to be lighted and placed in the headlight when it failed, for any reason, which, when placed in the headlight, could be seen for the distance of five miles, but on this occasion they were not so placed, and no headlight was burning. From S eastward the track was straight and free from obstruction, with a decline in the grade for four miles. No. 167 came from the east at the rate of thirty miles an hour, and her engineer and fireman having looked but failed to observe No. 172, collided with the same, in which collision B, the fireman on No. 172, was injured, for which injury he sues the railroad company for damages.</p> <p>Held, that the proximate cause of B’s injury was the negligence of A, a fellow-servant of B, in not obeying the order given him to remain on the side-track at S until No. 167 passed, and in failing to place the lighted handlamps in the headlight.</p> <p>Held, also, that the negligence of the railroad company in failing to furnish a proper headlight was a remote cause of the injury.</p> <p>Held, also, that the negligent omission of the company to furnish a ' proper headlight, and the negligent acts of A were not concurrent in causing the injury.</p>

<p>Taxes. — Omitted Property . — Power of County Auditor to Assess. — Information. — In making assessment of omitted property, the county auditor may act upon any information, written or oral, or even upon Ms own belief.</p> <p>Same. — Omitted Property. — Notice.—Description.—-The notice of intention to assess, by the auditor, need describe the property only in general, terms.</p> <p>Same.— Taxing Statutes Liberally Construed. — The power to assess is a summary one, and to secure uniform and just taxation, and to protect the revenues of the State, and in the interests of honest taxpayers, it is necessary that assessment statutes should be liberally interpreted in aid of the taxing power.</p> <p>Same. — Suit to Cancel Taxes Levied on Omitted Property. — Insufficiency of Complaint. — Failure to Come into Equity with Clean Sands.- — • Where an administrator brings suit to cancel certain taxes assessed against omitted property of Ms decedent, by the county auditor, the administrator'must show, in his complaint, that he has done equity, before he is entitled to equitable relief; and where the administrator makes no pretense that the original assessment was a fair or just one, or that the decedent had, in fact, given in all his property for taxation, the complaint is insufficient on demurrer for want of facts.</p> <p>Same. — Omitted Property.— When Notice Should be Served on Administrator. — The personal representative of a decedent is the proper person to receive notice of intention to assess omitted property from the assessment of his decedent.</p> <p>Same. — When Irregularities do not Affect Assessment. — Irregularities do not affect the correctness of a tax assessment, if the proceedings are substantially correct, and the assessment is fair and just.</p> <p>Same.— Omitted Property. — Bight of Gounty Auditor to Assess. — Beenaatment of Old Section (1881) in New Statute (1891). — Effect.— That section of the tax law of 1881 authorizing the assessment of omitted property by the auditor, was reenacted, verbatim, in the tax law of 1891; and the reenactment of such section in the new law has the effect to keep such section of the old law in force without interruption, even though the old law was expressly repealed.</p>

<p>Municipal Cokpobation. — City.—Street Improvement. — Street Bailway. — IVhen Cost of Paving Between the Bails is Chargeable to the Bailway Company. — Where, by contract between a street railway company and a city, it is left to the judgment of the council whether they would assess the cost of pavement between the rails, against the railway company or against the abutting property, the assessment for the cost between the rails of the street railway can not attach to the abutting property when the ordinance directs that it shall be levied against the property of the company, and the contractor is sent to it for his pay.</p> <p>Same. — Street Improvement. — Row Made. — Cost of. — The street improvement could only be made on the order of the common council, and the assessment for its cost could be directed only against the specific property designated in the ordinance.</p> <p>Same. — Street Improvement. — Authority of Mayor to Contract for.— When Ordinance a Part of Contract.- — If a mayor enter into a contract with a bidder for street improvement, by authority of the common council, his contract with the contractor for the improvement is binding only in so for as it is within the power conferred by the common council, and the ordinance directing the improvement, when properly referred to, constitutes a part of, and is the base of, the contract. That the ordinance is a part of the contract, see opinion.</p> <p>Same. — Street Improvement. — Duty of Contractor to Take Notice of Ordinance. — Contract.—It is the duty of a contractor to inform himself as to an ordinance on which his contract is based and which is to form the basis of his claim.</p>

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

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

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

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

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

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

<p>Will. — Construction of. — Beal Estate. — Expectancy.—Conditional Fee. —Defeasible Interest. — S. died testate in 1871, leaving his widow, a son and two daughters as his only heirs at law. The will provided as follows: “Item third. — It is my will, after the payments aforesaid are made, and after expenses of administration are all paid, that my wife, * * if she shall survive me, and remain my widow, shall have the use of all the remainder of my estate, both real and personal, during her lifetime, * * to be kept and used by her during * * her natural life, if she so long remain my widow; but in case of her marriage after my deceased, this provision of my will to be void, * * and, in that case, I desire that she take out of my estate, * * only such provision as the laws of the State of Indiana make for widows at. the time of my death., Item four: — At the death of my wife, if she shall not marry again, I bequeath all my property, share and share alike, to my children * * *. In case my wife should again marry, and so take the provision herein made for her, * * I bequeath the remainder of my estate * * to my children, * * as provided in the former part of this will.”</p> <p>Held, that the children of S. took a conditional fee in expectancy, which was to ripen into an absolute fee at the death of the widow.</p> <p>Held, also, that the son having died prior to the widow, who is still unmarried, his estate was a defeasible one, which was thereby defeated, and there remains no interest which can be subjected to the payment of the son’s debts.</p> <p>Same. — Distribution to Children at Death of Widow. — Where there is an c expressed or fairly implied intention to fix the time for distribution of the testator’s estate to his children, “at the death of his widow,” the law will uphold his purpose and intention.</p>

<p>Election. — For Adoption of Proposed Measure. — Majority.—■Failure to Vote. — Acquiescence.■—Where a measure is proposed to the people, and its adoption made to depend on a vote of the majority, those who do not vote are considered as acquiescing in the result declared by those who do vote, even though those voting constitute a minority of those entitled to vote.</p> <p>Same.— When Majority of all Votes Required. — Regular Flection. — Where a question is required to be submitted at a certain regular election, and is made to depend upon a majority of the votes cast at “such election,” a majority of all the votes cast at the election is meant, and not merely a majority of the votes cast on that particular question.</p> <p>Same. — When Less than a Majority of all Votes Sufficient. — Where, at a general election, a proposition is submitted to the voters, the result of the vote on the proposition will be determined by the votes cast for and against it, in the absence of a provision in the law, under which it is submitted, to the contrary.</p> <p>Same. — Votes Upon Particular Proposition.— What Required. — Where a legislative body provides that a proposition shall be submitted to the voters, that those in favor of the proposition shall cast an affirmative vote, and that those electors opposed to the proposition shall cast a negative vote, and that a “majority of the votes given” shall be requisite to the adoption of the proposed measure, then the only votes to be counted and considered, in determining whether the measure is adopted or not are those which are given on the particular question involved.</p> <p>Same.— Union of City and Town. — Election Upon.— Vote Required.— Statute Construed. — The act of February 16, 1857, for the union of cities and towns, being sections 3233 et seq., E. S. 1881, requiring the votes of a majority of the qualified voters of each corporation, at a special election held on a day to be fixed by the city and town authorities for the purpose of determining the matter, the result of which is to be specially canvassed and declared, only contemplates a majority of the persons voting upon the proposition for union, and the fact that the day fixed for the election is the day upon which the general municipal election is required by law to be held, and that the votes cast in favor of! such proposition do not constitute a majority of the votes cast for municipal officers, does not affect the result.</p>

<p>Mortgage. — Strict Foreclosure. — Gan not be had Against Owner of the Fee. — Purchaser at Sheriff’s Sale. — Parties.—In 1876, B. recovered a judgment against C. who was at the time the owner of certain real estate, which judgment became a lien on the land. The land was sold by the sheriff, on execution issued on this judgment, on February 17, 1877, to J. and J. received a sheriff’s deed for the same, March 16, 1878. W being the owner, by assignment, of a mortgage on such land, executed June 17, 1875, by C. and wife, brought suit January 8, 1878, against C. and wife, to foreclose the same, to which action J. was not made a party, and obtained a decree foreclosing the same March 11, 1878, and the land was sold to W. May 11,1878, for which he received a sheriff’s deed June 20,1879. W. brings suit against J. for the purpose of obtaining a decree in strict foreclosure.</p> <p>Held, that J. by his purchase at sheriff’s sale, became the owner of the fee, of the land in dispute, and was such owner at the time the action for strict foreclosure was brought.</p> <p>Held, also, that a strict foreclosure can not be had against one who owns the fee to the land; but is only applicable against one. who has an equity of redemption which has not been cut off or barred.</p> <p>Held, also, that as J. was not a party to the suit of W. to foreclose his mortgage, the decree in that case can in no wise affect J.’s rights.</p>

<p>New Trial. — As to Part 'of Issues. — Pule as to. — In order that a new trial may be granted as to part oí the issues, it must clearly appear that the issues to be decided are wholly between the parties as to whom a new trial is asked, and that the rights of the other parties to the original action will not be afiected.</p> <p>Same. — As of Bight. — Buie as to. — It is only in actions for the recovery of real estate and to quiet title to real estate that the losing party may have a new trial as of right under the statute, section 1064, R. S. 1881; and if two or more substantive causes of action proceed to judgment in the same case, whether properly or improperly joined, one being of the class in which a new trial as of right may be granted and the other not, the latter will control the procedure, and a new trial as of right will be denied.</p>

<p>Criminal Law. — Larceny.—By Husband of Wife’s Money. — Under the enabling statutes of this State the husband’s interest in his wife’s personal property is abolished, and he may be convicted of the larceny of her money.</p> <p>Same. — Larceny by Trich and Artifice. — One who obtains money or goods by some fraudulent trick or artifice, and carries them away, is guilty of larceny.</p> <p>Same. — Facts of Case. — For facts held sufficient to constitute larceny by a husband of his wife’s money, by trick and artifice, see the opinion.</p>

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

<p>Highway. — Dedication.—Prima Facie Evidence of . — Recorded Plat.— Street. — Personal Injury. — Incorporated Town. — In an action against an incorporated town for personal injuries sustained by reason of an obstruction in one of its public streets, the plat of the addition containing such part of the street, which was filed and recorded in the recorder’s office for more than sixteen years prior to the accident, is prima facie evidence of ownership by the dedicator, and of his intention to so dedicate it.</p> <p>Same. — Dedication.-—Acceptance.—Where it appears that such street was used by the public both before and ever since the dedication, and that the town authorities worked the street where such work was needed, an acceptance of the dedication is sufficiently established.</p> <p>Same. — Street.— Obstruction (Post). — Personal Injury. — Contributory Negligence. — Frightened Team. — -Where the plaintiff’s team became frightened and unmanageable and shied out of the beaten path of the road, and bringing plaintiff’s wagon into collision with a post in the roadway, a few feet from the beaten path, causing plaintiff’s injuries, he is not guilty of contributory negligence, even though he knew the post was in the road.</p> <p>Same.- — Obstruction.— Use of Street With Knowledge of Obstruction. — A person is not legally compelled to forego the use of a public highway which is open to public use simply because of an obstruction therein.</p> <p>Special Finding.- — Failure to Find Fact Within the Issues, and the Evidence.— When Not Ground for Reversal. — Burden of Proof. — A. failure to find a fact within the issues, which is established by the evidence, is not ground for reversal of the judgment, provided the facts essential to a recovery are found; for a failure to find upon an issue in such a case is equivalent to a finding against the party upon whom rests the burden of proof upon that issue.</p> <p>Damages. — Personal Injury. — Combined Causes. — Several Liability.— If two causes combine to produce injuries, defendant is not relieved of liability because it is responsible for only one of such causes; provided the plaintiff is free from contributory negligence.</p>

<p>Execution. — Levy.—Lien.—Continuance Beyond Life of Execution.— Special Finding. — Presumption Supporting. — A special finding that an execution issued by a justice of the peace was levied upon personal property, and that the levy continued for a period longer than six months prior to the issuing of a vendi, is a finding of fact, and it will be presumed, in the absence of anything to the contrary, that the evidence supported the finding that the levy, in some legal way, was maintained beyond the life of the original execution, and an exception to a conclusion of law that the lien of the execution continued is not well taken.</p> <p>Supreme Court Practice. — Buie where Same Question Presented by Pleadings and Special Findings. — Rulings upon pleadings will not be considered on appeal where the same questions are presented by exceptions to conclusions of law upon a special finding of facts.</p> <p>Practice. — Motion to Modify Judgment. — Bill of Exceptions. — In order that any question may be presented on appeal upon a motion to modify a judgment, the motion must be brought into the record by bill of exceptions.</p> <p>Same. — Erroneous Befusal to Grant Change of Venue. — How Question Saved. — The erroneous refusal of a change of venue must be made the ground of a motion for a new trial or it will not be considered on appeal.</p>

<p>Supreme Court Practice. — Assessment of Damages. — Weight of Evidence. — The Supreme Court can not pass upon the sufficiency or insufficiency of the damages assessed where to do so would require it to weigh conflicting evidence.</p> <p>Nuisance.' — Privy.—Injunction.—The erection of a privy and vault within three and one-half feet of the dining room of an adjoining owner may be enjoined as a nuisance, without reference to the manner in which the vault is constructed or to the intention of the defendant to use disinfectants.</p>

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

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

<p>Judgment. — Objection to Form of. — Question, Sow Saved. — Supreme Oourt Practice. — An objection to the form of a judgment can not be considered by this court, unless the objection was made at the time the judgment was entered, and a motion was made or other appropriate steps taken to modify and correct it.</p>

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

<p>Negligence. — County.—Defective Bridge. — The rule that counties are liable for injuries caused by defects in bridges which they are bound to keep safe, but negligently fail to do so, is the law of this State, although there is no statute creating such liability.</p> <p>Fridge. — Complaint.-Motion to Make More Specific. — Where a complaint alleges an injury while crossing “a bridge over a natural watercourse,” and alleges that the bridge was one which it was the duty of the county to maintain, and that it constituted part of a public highway, a motion to make the pleading more specific, by setting out more particularly the character, size and description of the watercourse, and the character, size and position of the bridge over the same, may be properly overruled.</p> <p>Same. — Duty of County to Maintain Bridges. — Personal Injury. — Under section 2892, E. S. 1881, the board of county commissioners is charged with the duty of causing all bridges in the county to be kept in repair, whether they cross natural or artificial watercourses, and for a breach of this duty, resulting in injury to a traveler, without contributory fault, the county is liable.</p> <p>Same. — Character of Bridge. — No matter by whom, when or for what purpose built, or whether temporary or permanent, as soon as it becomes the duty of the board of commissioners to maintain the bridge, that duty permits no other consideration than the reasonable safety of the persons crossing it in a proper manner.</p> <p>Watercourse. — Definition.—A watercourse, in its most general sense, is a course or channel in which water flows. In its legal sense, it consists of bed, banks and water, a living stream, that is, a permanent or continuous stream, confined in a channel, but not necessarily flowing all the time, as the question does not depend upon the length of time water flows as compared with the time the channel is diy.</p> <p>Same. — Instructions Defining Watercourse. — For instructions defining a' watercourse held to have been properly given, and for instructions held to have been properly refused, see opinion.</p> <p>Verdict. — General.-—When Prevails Against Answers to Interrogatories. —A general verdict will prevail against answers to interrogatories, latter, being themselves free from conflict, are in absolute conSc£vSQ$h the verdict.</p> <p>Bill op Exceptions. — Omission of Some Evidence. — Questions Arising Upon Evidence. — Practice.—Where the bill of exceptions affirmatively shows that evidence was introduced which is omitted from the transcript, the statement of the bill that it contains “all the evidence given in the cause,” will not prevail, and no question arising upon the evidence will be considered.</p>

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

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

<p>Life Insurance. — Application.—False Entries in by Agent. — Estoppel.— Where an applicant for life insurance, in good faith, gives truthful answers to the questions asked him, but the agent, whether purposely or otherwise, without the knowledge or connivance of the applicant, inserts false answers, the wrong is that of the assurer, and the latter is estopped from imputing it to the assured.</p> <p>Same. — Failure of Assured to Bead Answers in Application and Policy.— Negligence. — An applicant for life insurance is justified in assuming that the agent has, in good faith, correctly recorded his answers to the questions asked; and if the answers are given by him truthfully and in good faith, he is not chargeable with negligence if he signs the application thus prepared without reading it, or if he accepts and retains the policy issued thereon, with a copy of the application attached, without searching it to ascertain whether the assurer’s agent had acted honestly with his principal.</p>

<p>Negligence. — Bailroad.—Obstruction on Depot Platform. — It is negligence on the part of a railroad company to place an obstruction consisting of a plank two inches thick upon a depot platform used by passengers and trainmen.</p> <p>Bams. — Brakeman.—Duty to Alight from Moving Train. — Personal Injury Where a brakeman upon a freight train is required, in the discharge of his duty, to alight from the moving train while passing a station to receive orders, and does so without any negligence, but by reason of an obstructing plank nailed upon the station platform by the employer is caused to stumble and fall under the train to his injury, the employer is liable in damages.</p> <p>Same. — Contributory Negligence. — Alighting Upon Icy Platform. — In such case the getting off the moving train, being in the line of duty, is not negligence, even though the platform upon which the brakeman alighted was covered with sleet.</p> <p>Supreme Court Practice.— Verdict.' — Judgment Upon. — Beversal with Mandate to Enter. — Where, after a general verdict for a plaintiff, the trial court gives judgment for the defendant upon answers to interrogatories, the Supreme Court, on appeal by the plaintiff, if it finds such answers consistent with the general verdict will not order a new trial, but will remand the case with instructions to render judgment upon the verdict.</p>

<p>New Trial. — Exception to Ruling on. — When Sufficiently Made to Appear in Record. — Supreme Court Practice. — Where an exception to the overruling of a motion for a new trial appears in that part of the transcript where the order book entry of the motion and the ruling thereon áre found, but no such exception appears in the bill of exceptions, where the motion and order overruling it are also found, an exception is sufficiently made to appear to entitle the appellant to have the questions involved in the motion for a new trial considered and decided.</p> <p>Same. — Evidence.—Affidavit.—Clerical Error. — A ground for a new trial, that the court erred in receiving in evidence, over appellants objection, the affidavit of G. is unavailing where no such affidavit was put in evidence; and the fact that on the page to which the brief refers, the affidavit of M. is found, and G. appears as the notary public before whom the affidavit was made, doesnot justify the court in treating it as a clerical error.</p> <p>Evidence. — Objection to. — Town.—Incorporation Proceeding. — Census and Affidavit. — Where in a proceeding to incorporate a town, objection was made to the introduction in evidence of the census and affidavit thereto, “for the reason that there is no proof except the affidavit attached,” the objection does not include the affidavit, but is an objection to the introduction of the census without additional proof of its correctness.</p> <p>Same. — Objeation to Should be Specific. — Confined to on Appeal. — Grounds of objection to evidence must be stated particularly, and if the evidence is received over such objection, the objecting party will be confined to such objection on appeal.</p> <p>Same. — Proceeding to Incorporate a Town. — Preliminary Steps Admissible on Appeal to Circuit Court. — The preliminary steps and juris- , dictional facts made to appear before the board of commissioners, in a proceeding to incorporate a town, may be made to appear in the circuit court on appeal.</p> <p>Same. — Introducing Transcript on Appeal. — Mot Prejudicial Error.— Where the transcript of a case on appeal in the circuit court was introduced in evidence, there was no prejudicial error.</p> <p>Supreme Court Practice. — Ground for New Trial can not be Made Independent Assignment of Error. — No question is saved to the admission of affidavit in evidence over objection, where such alleged error was not made a ground of motion for a new trial.</p> <p>Municipal Corporation. — Town.— Unplatted Land in Corporation Limits. — Validity of Incorporation. — The fact that unplatted or farming land is included in the limits of an incorporated town does not render the incorporation invalid.</p>

<p>County Commissioners. — Contract for Stationery. — Administrative Act. —No Appeal from. — The act of the board of county commissioners in entering into a contract for the purchase of stationery for the county is an administrative one, from which an appeal will not lie.</p> <p>Same.— Contract for Stationery, When Void. — Injunction.—If, in performing such act, the board fails to comply with the requirements of the statute, the act of the board is void, and it may be so declared, and injunction will lie to prevent the board from carrying out the terms of such contract.</p> <p>Same.— Void Contract. — Injunction.—Estoppel.—Stationery.—The fact that the plaintiff, in an injunction proceeding against the board of commissioners and other defendants to restrain them from taking any action under such void contract, and to have such contract declared void, had endeavored to become a bidder before the board on such contract, could not prevent him from bringing an action as a, taxpayer, for the purposes aforesaid.</p> <p>Same. — Contract for Stationary. — Must he Made in Strict Compliance with the Letter and Spirit of the Statute. — In making a contract for stationery for the county, the statements required of the county officers, the notice to bidders, and the reception and examination of bids are the essence of the law governing such transaction, and the board must exercise their powers in this regard in strict compliance with the letter and spirit of the statute.</p>

<p>Constitutional Law. — When Question duly Presented. — Appellate Court Jurisdiction. — Where a constitutional question is so pertinent to the record and presented by counsel in such apparent good faith supported by argument, that the court naturally feels it to be a duty to pass upon and decide the question one way or the other, the constitutionality of the statute is in question, and duly presented within the meaning of the statute, Acts 1893, p. 30, exception 1.</p> <p>Same.— When Question not duly Presented. — Appellate Court Jurisdiction. — But if the statute, the constitutionality of which is thus assailed, is not material to the determination of the appeal, and the case may be decided and finally determined without deciding such constitutional question, then the constitutional question is not presented within the meaning of such statute.</p> <p>Statute Construed. — Street Improvements. — Contractor.—Lien.—Pore-closure. — The amended seventh section of the act of 1889, as amended by the act of 1891, conferring the rights on the contractor for street improvements to foreclose his lien, and to recover a reasonable attorney’s fee, did not impair any vested right or constitutional guaranty. It simply provided a remedy for the enforcement of a right which had already been created by the act of 1889, in conferring a lien on the contractor.</p> <p>Same. — When Statute Petrospective. — Semedial Statute. — Street Improvements. — Act of 1891. — The statute conferring such rights on the contractor being a remedial statute relating to the mode of procedure in the enforcement of a right, is retrospective, and applies to causes of action subsisting at the date of its passage.</p> <p>Special Findings. — Amendments, When May he Made.- -Amendments to special findings by the court may be made by the trial court during the term and before the rendition of the judgment.</p>

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

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

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

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

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

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

<p>From the De Kalb Circuit Court.</p>

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