Volume 14 — Indiana Appellate Court Reports

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

<p>Accident Insurance. — Manner of Paying Premiums. — Forfeiture.— An accident insurance policy reciting that it is given in consideration of an order on a designated railroad company for the premiums payable from his wages for specified months, which did not become due -until the middle of the following month, and providing that a just claim arising before the first premium is due shall be paid, is not forfeited by the insured leaving the employ of the railroad company with no wages due him, and being accidentally killed before re-entering its employ, on the third day of the first month named in the order.</p> <p>Forfeiture. — Forfeitures are not favored in law, and the law will not supply a cause of forfeiture not provided for.</p>

<p>Huntington Circuit Court.</p>

From the Vanderburgh Circuit Court. Statement of Case. The appellant was the plaintiff and the appellees were the defendants in the circuit court.

<p>Criminal Law. — Diseased Meat. — Offering to Sell for Human Food. —Knowledge.-—Indictment.—An indictment, under section 2164, R. S. 1894, charging that defendant unlawfully and “ knowingly ” had in his possession, on a certain day, the meat of a certain diseased and injured animal, with the unlawful intent to sell the same for human food, sufficiently charges defendant’s guilty knowledge that the meat was diseased.</p>

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

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

<p>Contract. — Sub-purchaser, Promise to pay Notes of Nis Vendor.— Statute of Frauds. — An agreement by a sub-purcliaser of a machine to pay as the consideration certain notes executed by his vendor, the original purchaser, to the original vendor, as part of the purchase-price thereof, is not within the statute of frauds, as it is only a promise to pay his own debt.</p>

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

<p>Evidence. — Presumption.—Natural Gas. — Injury to Premises — It will not be presumed in the absence of evidence, that natural gas cannot be conducted through pipes without injury to the premises through which it passes.</p> <p>Natural Gas. — Damages.—Future Losses by Fire and Explosions.— Eminent Domain. — Condemnation Proceedings. — Damages cannot be allowed for probable future losses by fire and explosions as independent items, disconnected from the diminished value of land, in proceedings to condemn the same for laying pipes to convey natural gas.</p> <p>Same.' — Instructions to Jury. — Invading Province of Jury. — Condemnation Proceedings. — An instruction that natural gas is highly inflammable and liable to explode, and that in considering the damages to be assessed for land condemned to lay pipes to convey such gas, the jury may consider the probability of injuries from fire or explosions which may result from the ordinary, careful, and prudent operation of the pipe line, invades the province of the jury in assuming that there will be a probability of accidents with the best of care.</p>

<p>Pleading. — Complaint.— Railroad.— Damages.— Animals. — • Jurisdiction. — A complaint against a railway company for killing plaintiff’s horses, alleging that plaintiff owns a farm lying in the county where suit is brought, and that his horses entered on the railroad track at an unfenced point on the lands of an adjoining owner, is insufficient to show that the horses were killed in the county where the suit is brought.</p> <p>Jurisdiction. — Demurrer for Want of Facts. — An objection to the jurisdiction on the ground that the action has been commenced in the wrong county cannot be raised under a demurrer for want of facts.</p> <p>Same. — Action in Wrong County. — Arrest of Judgment. — An objection to the jurisdiction on the ground that the action is brought in the wrong county may be made on a motion in arrest of judgment, although section 436, R. S. 1894, provides that such objection shall be deemed to have been waived, unless taken by answer or demurrer.</p>

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

<p>Action. — Trespass.—Destruction of Growing Crop. — Jurisdiction.— County. — An action for the destruction of growing com on rented land, by cattle wrongfully permitted to go upon such land, is an action for trespass on real estate, the jurisdiction of which is in the county where the land is situated, instead of that in which the de- , fendant resides.</p>

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

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

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

<p>Appeal. ■ — ■ Amount in Controversy. — Action Commenced Before Justice of the Peace. — Costs.—The recovery of plaintiff, and not the amount sued for, is the amount in controversy on an appeal by defendant from an order re-taxing costs, within section 644, R. S. 1894, allowing an appeal to the appellate court in actions commenced before a justice of the peace only where the amount in controversy, exclusive of interest and costs, exceeds §50.</p>

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

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

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

<p>Evidence.— Malicious Prosecution. — Illness by Reason of Such Prosecution.- — Damages.—Evidence that plaintiff, in an action for malicious prosecution, became ill by reason of such prosecution and unable to attend to business for a specified time, thereby forfeiting his earnings under a special contract, is inadmissible under a general allegation that he was “greatly injured in his business.”</p> <p>Appellate Procedure. — Malicious Prosecution. — Evidence.—Remittitur.- — Recovery.—Error in admitting, without a proper pleading, evidence that plaintiff, in an action for malicious prosecution, became ill by reason of such prosecution, thereby forfeiting his earn, ings for a specified time under a special contract, cannot be cured by a remittitur of the amount allowed for being unable to attend to business, where it cannot be determined how much plaintiff’s becoming ill may have affected the jury in fixing the amount of recovery for distress and humiliation.</p>

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

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

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

<p>Replevin.— Judgment. — Return of Property. — Possession.—A judgment in replevin, that defendant has the return of the property, is not prejudicial to plaintiff, where it is found that he is not entitled to the possession, even though the right of possession was in a third ‘ person.</p> <p>Infant. — Chattel Mortgage. —Repudiation. —Possession. —The transferree of a chattel mortgage executed by an infant is not entitled to the possession of the mortgaged property by virtue of the mortgage, where the infant repudiates the contract.</p> <p>Endorsee.. — Promissory Notes Secured by Mortgage. — Possession of Mortgaged Property. — The endorsee of notes secured by mortgage is not entitled by virtue of the endorsement to the possession of any of the mortgaged property.'</p>

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

<p>Estoppel. — Promissory Note. — Forgery.—Promise After Maturity to Pay. — Extension of Time. — An admission by one who knows that his name is on the note, that he is liable thereon, and an agreement by him to stand good for it, made to the holder after its maturity, does not estop him to claim that his name is forged, although the holder extended the time of payment until another maker became insolvent, unless he was induced to make the extension by such admission and agreement.</p> <p>Practice. — Sustaining Demurrer to Reply to Answer of Non Est Faetum. — Appellate Procedure. — Sustaining a demurrer to a reply to an answer of non est factum to a note in suit, setting up that the note was signed by defendant, or by a third person with full authority from him, is not error, as such facts were put in issue by the answer.</p>

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

<p>Replevin. — Impounded Animals. — Road Supervisor. — Possession.— The possession of animals running at large, by a supervisor, who impounds them as required by section 3838, R. S. 1894, becomes wrongful ab initio, and the owner may recover his property without payment to the supervisor, where the supervisor fails to comply strictly with the statute as to notice.</p> <p>Animals.— Running at Large. — Supervisor Impounding. — When Statutory Charges Not Recoverable. — Notice.—A road overseer who takes up animals unlawfully running at large, under section 3838, R. S. 1894, making it his duty to do so, is not entitled to recover the statutory charges, where he serves the notice on the agent of the owner in his individual capacity and not as agent, instead of upon the owner herself, as required by section 2834.</p> <p>Same. — Impounding.—Notice.—Appearance by Owner. — Waiver. — The appearance of the owner of animals taken up by the road overseer while running at large, under section 2838, R. S. 1894, making it his duty to impound them in such case, does not operate as a waiver of a failure of such overseer to give immediate notice to the owner as required by section 2834.</p> <p>Instructions to Jury. — Instruction as to State of Facts on Which Plaintiff Must Fail. — An instruction which undertakes to set forth a state of facts .upon which the plaintiff must fail, is bad if it omits an essential element.</p> <p>Dissenting opinion by Boss, J.</p>

<p>Railroad. — Speed of Train. — Ordinance.—Negligence Per Se. — Running an engine with a box car attached, through a city, at the rate of twenty miles an hour, in violation of an ordinance limiting the speed of trains to twelve miles an hour, is negligence per se.</p> <p>Same. — Child Twelve Years of Age. — Sui Juris. — Personal Injury.— Railroad and Highway Crossing. — A girl twelve years of age, of average intelligence, accustomed to cross a railroad track, is chargeable with knowledge that such railroad track is a place of danger, and that care must be used to avoid being struck.</p> <p>Same. — Personal Injury. — Collision at Intersection of Highway.— Negligence. — Contributory Negligence. — The negligence of a railroad company, in violating a city ordinance limiting the rate of speed of railroad trains, does not relieve a pedestrian on the street from exercising due care in crossing the track.</p> <p>Same. — Personal Injury. — Railroad and Highway Crossing. — Child Twelve Years Old. — Contributory Negligence. — A girl twelve years old, of ordinary size and intelligence, who attempts to walk across a railroad track in front of an approaching' train which she could have seen if she had looked when five feet from the track, while the bell was ringing and after the whistle had sounded, is guilty of such contributory negligence as will prevent a recovery.</p> <p>Special Verdict.' — Freedom From Contributory Negligence. — Personal Injury. — Railroad.—A finding that plaintiff, twelve years of age, was a child of immature years, and was exercising caution and prudence to the best of her judgment, and was without fault or negligence in attempting to cross defendant’s railroad track, does not require a judgment in her favor where it clearly appears from . other findings that she was guilty of contributory negligence.</p>

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

<p>‘Appellate Procedure. — Dismissal of Appeal. — Receiving Money Paid on Judgment. — An appeal will be dismissed, where the appellant accepts and receipts for the amount of the judgment, which is left with the clerk of the court, and acknowledges full satisfaction of the judgment, although he did not know the legal effect of such action on his part, under section 644, R. S. 1894, providing that the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.</p> <p>Same. — Dismissal of Appeal. — Receipt by One Co-plaintiff of Money Paid on Judgment. — A receipt entered in satisfaction of a judgment by one of two joint co-plaintiffs, is binding upon the other so as to require as to both the dismissal of an appeal taken by them from the judgment, under section 644, R. S. 1894, providing that the party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.</p>

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

<p>Mechanics’ Lien. — On Land. — House Destroyed by Fire Before Completion and Before Filing Notice of Lien. — A subcontractor is entitled to a lien on the land, for work done and material furnished in plastering a house, winch was destroyed by fire before its completion, and before the notice of lien was filed, under section 7256, R. S. 1894, making the entire land upon which any building is erected, including the portion not covered therewith, subject to the lien.</p>

<p>Eminent Domain.— Highway.- — ■ Gas Pipe Line.— Damages.- — -The building of a pipe line for gas or oil along a highway is an additional burden upon the fee, for which compensation must be made to the owner.</p> <p>Same. — Gas Company. — Pipe Line. — Highway.—A gas company cannot, under section 5103, R. S. 1894, construct a natural gas pipe line in and along a highway, without the 'consent and against the protest of the owners of the abutting land.</p> <p>Highway. — Right of Owner of Fee to Remove Gas Pipes Laid Therein Without Permission of Owner. — The owner of the fee in a highway may tear up and remove gas pipes laid therein without lawful authority or permission from such owner; and neither she nor those assisting her are liable, in the absence or use of unnecessary force or violence.</p> <p>Same. — Gas Pipe Line.■ — Permission from County Commissioners.— Highway. — Statute Construed. — The right to lay a pipe line along a highway, without permission from the county commissioners, is not given by act of February 20, 1889, subdivision 5, empowering pipe line associations to lay lines over or across, or under any highway, and providing that wherever the county commissioners shall direct, the lines may be laid along the right of way.</p> <p>Estoppel. — Highway.—Gas Pipe Line. — The owner of land abutting on a highway is not estopped to object to the laying of a natural gas pipe line in and along such highway, because he made no objection to the laying of such pipe lines in and along other, highways.</p> <p>Appellate Procedure. — Error.—Waiver.—Brief.—Alleged error in overruling plaintiff’s demurrer to a specified paragraph of an answer, and in sustaining defendant’s demurrer to a specified paragraph of the reply, will be deemed to have been waived, where there is no further reference thereto in the brief or argument than that if plaintiff’s construction of a designated act is correct, such ruling was error.</p>

<p>Railroad. — Damages.—Ejecting Passenger. — Ticket.— Explanation of Passenger.- — A railroad company is liable for damages in ejecting a passenger, who presents to the conductor a ticket calling for an intermediate station other than his destination, where the mistake as to the ticket was due entirely to the fault of the ticket agent, and the passenger explained the situation to the conductor. Dissenting opinion by Ross, J.</p>

<p>Appellate Procedure. — Error in Striking Out Part of Answer, Hoto Saved. — Bill of Exceptions.- — To present for review the ruling of the trial court in striking out a part of an answer, it is necessary that the ruling should be preserved in a bill of exceptions, reduced to writing at the time, or within the time allowed by the court in which to file the bill of exceptions.</p> <p>Same. — Record Entry. — Order of Oourt. — Position in Record. — An entry copied by the clerk in a record on appeal, as follows : “And the parties are given ninety days to file bill of exceptions,” will not be regarded as an order of court, where contained between the signature and jurat of an affidavit contained in the record, but as part of such affidavit.</p>

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

<p>County. — Repairs on County Buildings. — Liability for Benefits.— A county is liable for the benefits received from labor done and materials furnished in making repairs in county buildings, under a. contract with the county commissioners, although the contract is. ultra vires, because the board was not in session when it was executed.</p> <p>Same. — Liability for Claim for Repairs on County Buildings. — A claim for labor done and material furnished in repairing county buildings is not defective in this State, because made against the commissioners of the county, and not against the board of commissioners.</p> <p>County Commissioners. — Allowance of Claim. — Conclusive Adjudication. — The allowance or refusal to allow a claim against a county in this State, by the board of commissioners, does not necessarily constitute an adjudication which is conclusive if not appealed from.</p> <p>Evidence. — Mechanics’ Lien. — Work and Materials Furnished at Request of County Commissioners. — Former Adjudication. — It is-competent to show by parol that work done and materials furnished at the request of the county board of commissioners, in addition to that called for by written contracts, was not litigated in a former allowance by the board of a claim under the written contract, even if such allowance be considered an adjudication.</p> <p>Interrogatories to Jury.— When Will Not Override General Verdict. — Answers to interrogatories will not override the general verdict, unless they are absolutely irreconcilable with it upon any reasonable hypothesis.</p>

<p>County. — Defective Approach to Bridge. — Personal Injury. — Inability. — A county is not liable for personal injuries occasioned by the defective condition of the approach to a bridge, under the statute imposing upon the county commissioners the duty of keeping in repair all bridges, unless expressly made so by statute.</p>

<p>Partnership.- — Executing Note after Dissolution. — A partner has no authority to execute a negotiable note in the name of the firm after its dissolution, except by the consent of his partner.</p> <p>New Trial. — Newly Discovered Evidence. — A new trial will not be granted for newly discovered evidence not procured because of the belief that the witness was dead, due to the fact of the parties hearing that the son of the witness’ father was dead, and his belief that there was but one son, where investigation would have disclosed the facts and enabled him to procure the witness.</p>

<p>Judgment. — lies Adjudicata. — Judgment in Ejectment. — Tax Title.— A judgment in ejectment by one claiming under a tax title, expressly decreeing that tbe tax title deed is invalid, is conclusive of a claim for taxes, under section 8641, R. S. 1894, providing that the court shall ascertain the amount due the party holding the tax deed and claiming a decree for the payment thereof, where no reservation of the claim for taxes is contained in the judgment, although the judgment states that no evidence was offered as to the amount, as the deed itself is evidence of some amount.</p>

<p>Variance. — Indictment and Proof. — Gaming House. — Proof that a. witness before a grand jury, in a prosecution for permitting persons to remain in defendant’s building for the purpose of gaming therein, knew the names of the persons engaged in the gambling, is not a fatal variance from an indictment alleging that such persons were unknown to the grand jurors, where the evidence shows a continuing offense and the names of the persons engaged in the gambling are only an incidental matter.</p>

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

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

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

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

<p>Criminal Law. — -Associating - with a Prostitute.- — Sufficiency of Indictment. — Statute Construed. — Plural Includes Singular.— The offense denounced by section 2089, R. S. 1894, of associating with females known or reputed as prostitutes, may be committed by associating with one female so known as reputed.</p>

<p>.Action. — Party Defendant. — Assignor.—Endorsement. —The fact that the assignment of an account is in writing upon the same paper, which contains a statement of the account, does not make it an endorsement in writing, within section 277, E. S/1894, providing that the assignor shall be made a defendant in an action brought by the assignee of a claim arising out of a contract and not assigned by endorsement in writing.</p> <p>Same. — Booh Account. — Assignment.*—Assignor a Necessary Party Defendant. — An open or book account cannot be endorsed in writing so as to make it unnecessary to make the assignor a party, under section 277, E. S. 1894, requiring him to be made a defendant in an action by the assignee upon a claim arising out of a contract and not assigned by endorsement in writing.</p>

<p>Railroad. — Stock Killed. — Private Crossing. — Failure to Maintain Gates. — Failure of a person to maintain substantial gates across a wagon and driveway where it goes through railroad fences, as required by sections 5320-5322, R. S. 1894, does not make him liable to another person whose cattle are without right in a highway, and pass through such driveway to the railroad track on which they are killed ; neither is the railroad company liable for the killing of such stock. ■</p> <p>Same. — Private Crossing. — Duty of Landoumer to Maintain Gates, Owing to Railroad Only. — The duty of an adjoining landowner to erect and maintain substantial gates in the line of a railroad fence across a private driveway, fixed by sections 5320-5322, R. S. 1894, is one which he owes to the railroad company only.</p>

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

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

<p>Landlord and Tenant. — Action in Ejectment by Landlord. — Summons. — Tenant Yielding Possession. — A tenant, upon whom a summons in ejectment is served by his landlord, has a right to yield the possession, and no acts of the latter, without such tenant’s consent, can thereafter restore the relation of landlord and tenant between them.</p> <p>Same. — Tenant Wrongfully Evicted. — Measure of Damages. — -A tenant wrongfully evicted is not confined to the difference between the contract rent and the actual value of the use of the premises, but may recover expenses for removing his furniture to other premises with, perhaps, the value of the time actually lost.</p> <p>Same. — Lease.—Condition Of.- — Care of Premises. — Wear and Tear Incident to Use. — The provision in a lease that the lessee shall turn over the premises at the end of the term in as good condition as when leased, is limited by the dirty of the landlord to permit such wear and tear of the premises as is incident to the use to which they are put.</p> <p>Pleading. — Counterclaim.—Damages.—Landlord and Tenant. — A counterclaim in an action for rent for the destruction of defendant’s business by the landlord’s repeatedly and insolently demanding possession, ordering the defendant to vacate, threatening suit and commencing an ejectment suit against him, sufficiently avers that the possession of the lessee was interfered with, and that he was ejected, where it further states that by reason thereof he was unable to conduct the school for which he had leased the room, and he was compelled to cease to carry it on and his business was thereby destroyed.</p> <p>Same.— Answer. — Action for Rent. — -Constructive Eviction. — Landlord and Tenant. — Ejectment.—An answer in an action for rent, averring a constructive eviction by showing that the lessor brought an action to oust the lessee, and that thereupon both the latter and his subtenant removed from the premises and turned the keys over to the lessor, is sufficient, although the complaint alleges that he has used and is still using and occupying the premises.</p> <p>Same. — Answer.—Landlord and Tenant. — Action for Damages to Premises. — Subletting.— An answer in an action by a landlord against a tenant for injury to the building by subletting contrary to the terms of the lease, that the plaintiff consented and suffered the sublessee to p .it an engine in the building to propel his machinery, and that no greater injury was done than was incident to the conduct of the business so carried on with the consent of the landlord, if argumentative is not demurrable.</p> <p>Same. — Counterclaim.—Damages.—Averment of Due and Unpaid not Necessary. — Landlord and Tenant. — A counterclaim in an action for rent averring the destruction of defendant’s business by the interference of the landlord with his possession, need not aver that the damages are due and unpaid.</p>

<p>Evidence. — Opinion of Witness as to Value of Hay. — A person unacquainted with the market-price of hay, which has been stacked a year, and who has never seen the hay in question, cannot give his opinion as to the value of hay which has been a year in the stack, although he has been dealing in hay for several years, and is acquainted with the character of the hay grown in the vicinity.</p>

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

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

<p>Appellate Procedure. — Dismissal.—Failure to File Assignment of Errors Within a Year. — An appeal will be dismissed for failure to file the assignment of errors within a year, where no sufficient excuse therefor is shown.</p>

<p>Evidence.— Parol.-Contents of Letter.-Parol evidence is not admissible to prove the contents of a letter in the absence of proof of loss of the same, or that it is beyond the jurisdiction of the court, or that an effort has been made to procure the original, and that it cannot be produced.</p> <p>Mortgage. — Chattel.—Acceptance by Mortgagee. — Replevin of Mortgaged Goods.— The bringing of an action by a chattel mortgagee to replevin the mortgaged chattels does not constitute an acceptance of a mortgage recorded without his knowledge, so as to affect an intervening purchaser at a sale under execution against the mortgagor.</p> <p>Same. — Chattel.—Executed and Recorded Without Knowledge of Mortgagee. — When Void as Against Subsequent Purchaser. — If a chattel mortgage be executed without the knowledge of the mortgagee, and is delivered to a third person, and is by him recorded, it is void as against a subsequent purchaser of the goods on execution against the mortgagor.</p> <p>Same. — Chattel.—Acceptance.—Subsequent Purchaser. — In such case, the acceptance of the mortgage, after such sale, by the administrator of the mortgagee, cannot affect the rights of the purchaser.</p> <p>Harmless Error. — Evidence, Excluding. — Excluding testimony, if error, is harmless, where it w;as subsequently admitted.</p> <p>Witness. — Credibility of a witness is a question solely for the trial court.</p> <p>Lien. — Purchaser of Mortgaged Chattels.- — Execution Sale. — A purchaser at an execution sale of mortgaged chattels has a lien on the excess remaining, after the mortgage has been satisfied.</p>

<p>From St. Joseph Circuit Court.</p>

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

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

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

<p>Criminal Law. — Common Law Crimes. — Common law crimes do not exist in this State.</p> <p>Same. — Gaming Tenement. — Corporation. — Public Nuisance. — Statute Construed, — A corporation is not indictable under section 2173, R. S. 1894, for keeping a tenement for gaming, although it may be liable under section 1970, for maintaining a public nuisance, where the gaining is carried on to such an extent as to make it a nuisance.</p>

<p>PUBiiia Improvement. — Description.-—Street Assessment. — An assessment against 163 feet of a lot described by number in a certain addition is sufficiently definite and certain.</p> <p>Same. — Street Assessment. — -Waiver.—Estoppel.—A property owner wbo executes a written waiver of objection to tbe illegality or irregularity of an assessment for public improvements, under section 4397, R. S. 1894, allowing payment in annual installments upon the execution of such a waiver, cannot afterwards be heard to question the regularity of the assessment.</p> <p>Same. — Installment, When Due and Payable. — The first installment of an assessment for public improvements payable in ten annual installments, under section 4297, R. S. 1894, providing that the first installment shall be due and payable when the first tax falls due after the completion and acceptance of the work, is due and payable at the next regular time following the completion and acceptance of the work and the making of the assessment that taxes are payable, whether it be the April or November installment, although if the assessment had not been made payable in installment it •would have been payable in the following April.</p>

<p>Evidence. — Statement Made to One in Presence of Another. — When Not Admissible. — A statement made to one person in the presence of another is not admissible in evidence against the latter unless it was made within his hearing.</p> <p>Same. — Sustaining Objection to. — Appellate Procedure. — The sustaining of an objection to evidence will not be held erroneous on appeal if there is any valid ground of objection, although the one given was not a valid one.</p> <p>Witness. — Surviving Partner. — Decedent’s Estate. — An alleged surviving partner is not a competent witness in an action against the estate of an alleged silent partner to recover for goods sold and delivered, to prove the partnership, its duration or time of dissolution, or fix upon the deceased any liability for the goods pin-chased, but is competent to testify to the purchase of the goods, and that the purchase price is unpaid.</p>

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

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

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

<p>Damages. — Appeal Bond. — Only nominal damages can be recovered against the sureties on a term time appeal bond which was not perfected by filing the record intime, where no damage is shown to have resulted from the stay of execution during the sixty days allowed by the statute for perfecting the appeal.. %</p> <p>Appellate Procedure.— Damages, Nominal.— Reversal of Judgment. — A judgment will not be reversed to enable a party to recover nominal damages only.</p>

<p>Criminal Law. — Killing Diseased Animal for Food. — Affidavit and Information. — An affidavit and information under section 2164, R. S. 1894, making it an offense for any person to kill for the purpose of sale, any siok, diseased, or injured animal, need not allege that the meat was to be sold within the State.</p> <p>Same. — Killing Diseased Animal for Food. — Affidavit and Information. — An information charging that defendant did “knowingly” kill for the purpose of selling for food sick, diseased, and injured animals, sufficiently shows that defendant knew them to be sick, diseased, or injured at the time of the killing, and that he knew of the purpose to sell them for food.</p>

<p>Husband and Wife. — Implied Contract. — A wife is not liable to lier husband in this State upon an implied contract only.</p> <p>Appellate Procedure. — Costs.—lietaxing.-—Where no motion to retax costs or to modify the judgment was made in the trial court, the action of the trial court thereon will not be reviewed on appeal.</p>

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

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

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

<p>Appellate Court. — Jurisdiction.—Vendor’s Lien. — Equity.—The Appellate Court does not have jurisdiction of an appeal from a judgment declaring a vendor’s lien, which is peculiarly of equitable cognizance, under section 1337, R. S. 1894, limiting its jurisdiction to cases for the foreclosure or enforcement of liens of purely statutory origin.</p>

<p>Appellate Procedure. — Instruction.—Failure of an instruction to include a proposition which might properly be connected therewith is not reversible error, where no request therefor is made.</p> <p>Pleading.' — Complaint.—Contributory Negligence. — General Averment. — A general averment of freedom from contributory negligence is sufficient as against a demurrer, unless the facts specifically set forth show negligence.</p> <p>Same. — Complaint.—Street Railroad. — Speed of Car. — A complaint alleging that defendant’s street railway car was run at an excessive rate of speed, and that no care or diligence was exercised by defendant, sufficiently alleges a failure to give notice of the car’s approach.</p> <p>Street Railroad. — Contributory Negligence. — Crossing Track.— Failure to Look and Listen. — Failure to listen before attempting to cross a street railway tract, even if negligence, is not as a matter of law such contributory negligence as will prevent a recovery for injury caused by a collision with a car, unless such failure materially contributed to the accident.</p> <p>Contributory Negligence. — Raw and Fact. — Contributory negligence is a question of law only when the facts are undisputed and but one inference may be reasonably drawn therefrom.</p> <p>Bill on Exceptions. — Time of Filing. — A bill of exceptions filed February 26th is one day too late, where sixty days were allowed to file such bill from the overruling of a motion for a new trial on December 27, 189á, preceding.</p> <p>(See note at end of opinion.)</p>

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

<p>Principal and Surety. — Contract of Surety Strictly Construed.— The contract of a surety must receive a strict interpretation and cannot be extended beyond the fair scope of its terms.</p> <p>Bond. — Decedents Estate. — Paying Widow's Distributive Share to Her Attorney. — Judgment.—The condition of a bond providing for the payment to an attorney of the amount of the distributive share in an estate turned over by him to his client, in case he should be ordered to pay the same into court, is not broken by the recovery of a judgment for such amount against the client only, and it cannot be enforced by the administrator of such estate, although he procures an assignment thereof and the client is insolvent.</p>

<p>Pleading. — Plea in Abatement. — When Available. — Pleas in abatement must be filed at the earliest opportunity, and will not avail if filed with or after pleas in bar have been filed, as the provisions of section 368, R. S. 1894, to that effect are imperative.</p> <p>Same. —Answer.—When Demurrable. — Garnishment. — Fraud. — Insurance. — A paragraph of an answer by garnishing creditors of an insured, made parties upon their petition in an action on the policy by the assignee of the claim thereunder, under an assignment antedating the garnishment, is demurrable where it merely alleges that the assignment was fraudulent and without consideration as to creditors, and asks that the cause he dismissed, but does not seek a judgment against the assignor.</p>

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

<p>Pleading. — Demurrer.—A demurrer to a paragraph of an. answer is properly overruled where it is good as an argumentative denial.</p> <p>Appellate Procedure. — Admission.—Exception to Conclusions of Law. — The correctness of all the facts found which are properly within the issues is admitted by excepting to the conclusions of law.</p> <p>Same. — Dismissal.—Issue of Fact. — Denial Under Oath by Appellant. — An appeal will not be dismissed on a motion by the appellee raising an issue of fact, where appellant denies under oath any material fact adduced in support of the motion.</p> <p>Burden of Proof. — Evidence. — Purchaser of Machine. — Warranty. — A purchaser of a machine under a warranty who relies upon a breach thereof as a defense to an action on the contract, has the burden of showing compliance on his part with the terms of the contract.</p> <p>Sale. — Warranty.—Reaping Machine. — Notice.—A purchaser of a machine' under a warranty requiring him to give notice of any defects and allow a reasonable time to remedy them cannot avail himself of the benefits of the warranty, where he returns the machine on the day after giving notice of defects and before such notice has been received by the seller and refuses to give it further trial.</p>

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

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

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

<p>Railroad. — Damage by Fire. — Negligence.—A railroad company is liable for damages to land not contiguous to its right of way, from a fire negligently permitted to escape from its right of way upon the contiguous land,whence it was communicated to the land in question, where the fire was a continuous one.</p> <p>Evidence. — Value of Property. — Opinion.—A witness who has actual knowledge of the very property in controversy is competent to give an opinion as to its value, basing such opinion upon the facts to which he has already testified.</p> <p>Same. — -Value of Land. — Damage by Fire. — Productiveness.—The capacity of lands to produce crops before and after an injury by fire thereto, is an element to be considered in determining the value and ascertaining the damages.</p>

<p>Pleading.— Demurrer to Answer.— Overruling.— A demurrer to an answer as a whole must be overruled where the answer contains a general denial.</p> <p>Appellate Procedure.— Answer.— Testing Suffiaiency Of.— The sufficiency of an answer, or of any paragraph thereof, cannot be tested for the first time by an assignment of error in the Aj>pellate Court.</p> <p>Special Verdict. — Essentials Of. — Judgment.—To entitle the party upon whom the burden of proof rests to a judgment on a special verdict, such verdict, when reasonably and fairly construed, must set forth all the facts required to sustain the judgment; and any essential fact not specially found, or necessarily included therein, will be deemed determined against him.</p>

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

<p>Contract. — Estimate of Engineer — Fraud or Mistake. — The effect of a provision of a contract that the estimates of the engineer of one of the parties as to work done, shall be conclusive upon both parties, is merely to make such estimates prima facie correct, but they may be attacked either for fraud or mistake.</p> <p>Same. — Where Made. — Presumption.—A contract will be presumed to have been made in the State in which suit is brought, unless the contrary is made to appear.</p> <p>Evidence. — Fraud.-—Mistake.-—-Burden of Proof. — A party having the burden of establishing fraud or mistake in a civil action, is reqnired to prove the same by a preponderance of the evidence, hut he is not required to establish the same beyond a reasonable doubt.</p>

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

<p>New Trial. — Sufficiency of Assignment. — Evidence.—An assignment as a cause for a new trial, that a witness was permitted to read certain books of account in evidence, sufficiently presents the question of the correctness of the court’s ruling in permitting the several questions calling for such evidence to be answered.</p> <p>Evidence. — Bootes of Original Entries. — When Admissible. — Books of original entries are inadmissible unless it is made to appear that better evidence is not obtainable, or that the transactions do not admit of more satisfactory evidence.</p> <p>Same.- — Books of Account. — Mechanic’s Lien. — Books of account are not admissible to prove the performance of work and furnishing of materials, where the entries were made from information and memoranda furnished to the bookkeeper, and not from his personal knowledge of the transaótions involved, — especially in the absence of a showing of necessity for their admission to prevent a failure of justice.</p> <p>Bill of Exceptions.— When Properly Authenticated.— A bill of exceptions is sufficiently and properly authenticated and identified by incorporating it in an order-book entry, the correctness of which is properly certified by the clerk, showing that it was signed by the judge and afterward filed.</p> <p>Same. — When Not Properly in Pecord. — Signature of Judge. — Filing. — A separate bill of exceptions to the overruling of a motion to require the submission of issues to a jury for trial, excepted to at the time, will not be considered, where it was not signed by the judge or filed until the following term, in the absence of any extension of time for filing.</p> <p>Appellate Court. — Jurisdiction. — Constitutionality of Statute.— The Appellate Court does not have jurisdiction of an appeal the decision of which involves a determination as to the constitutionality of a statute.</p>

<p>Injunction. — Damages. — Dissolution of Order. — Plaintiff in an injunction proceeding is not liable to the defendant for damages occasioned after dissolution of the order in an action which is not founded upon the undertaking or upon a malicious prosecution by such plaintiff. (See note at end of opinion.)</p> <p>Maxim. — Damages.—Damnum absque injuria.</p>

<p>Natural Gas. — Pipe Line. — Explosion.—Damage.—A purchaser of a natural gas-pipe line, for defects in the original construction of which it is not liable, is liable for damages occasioned by an expíosion of escaping gas, where it knew, or by the exercise of ordinary care could have known, of the existence of the leak at the point where the gas which exploded escaped long before the accident. (See note at end of opinion.)</p> <p>Evidence.— Natural Gas Pipe IAne. — Kinds of “Sleeves.” — Negligence. — Explosion.—Evidence of the different kinds of “sleeves” for connecting gas pipes in use at the time of an explosion of escaping gas is admissible upon the question of negligence by the company owning and operating the line at the time of the explosion, in . connection with evidence charging it with knowledge of the existence of the leak, although the kind of sleeve used was that in common use at the time of the original construction.</p>

<p>Special Verdict. — Failure to Find Fact in Issue. — Burden of Proof. — Any facts in issue, as to which, a special verdict is silent, must be deemed found against him, upon whom rests the burden, of proof with reference thereto.</p> <p>Same. — Master and Servant. — Constructive Notice. — Railroad Tunnel. — That a master was chargeable with constructive notice of the manner in which the “lagging” resting upon “bents” supporting the roof of a tunnel were jointed, rendering his failure to notify an employe thereof actionable negligence, is not shown by a special verdict which does not find that the situation could have been ascertained by an inspector, nor that the master did not inspect it with all proper care.</p> <p>Master and Servant. — Assumption of Risk. — Knowledge of Danger. — Exception to Rule. — Knowledge by the servant of the danger from a faulty construction, or the existence of such facts as by the exercise of reasonable care would have apprised him thereof, ordinarily constitutes an assumption of the risk. A promise to repair or order out special line or place of work creates an exception to this rule.</p> <p>Same. — Evidence.—Negativing Assumption of Risk. — Evidence that an employe did not know exactly how the particular pieces of “lagging” placed upon wooden bents supporting the roof of a tunnel were jointed, does not discharge the burden resting upon him to negative an assumption of the risk from the fall of such pieces due to the removal of certain bents on which they jointed, where it appears that he knew the general manner of construction, and that there was no uniformity as to the place of jointing.</p> <p>Same. — Master’s Duty a Continuing One. — Assumed Risks. — It is the master’s duty to exercise care, furnish a safe place and machinery, and to keep them so. The servant assumes ordinary and obvious risks, but not those added by the master’s negligence, of which he has no knowledge.</p> <p>Same. —Inspection. —Reasonable Care. — Latent Defects. —Distinction Between Duty of the Master and Duty of Servant. — Reasonable care upon the part of the master demands inspection and search for latent defects, while reasonable care on the servant’s part requires attention and observation of open or obvious defects and peril.</p> <p>Appellate Procedure. — Special Verdict. — Evidence.—'The Appellate Court cannot resort to the evidence to supply omissions in a special verdict.</p>

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

<p>Criminal Law.- — Intoxicating Liquors.— Saloon. — Loitering.—Affidavit. — That an affidavit, under the “Nicholson Law,” making it an offense to allow a minor to loiter in a room where intoxicants are sold as a beverage, charges that defendant suffered the minor “to be” as well as “to loiter” in his saloon, does not render it vulnerable to a motion to quash for indefiniteness and ■uncertainty.</p> <p>Evidence. — Criminal Law. — Saloon.—Loitering.—The jury have a right to conclude that a minor was suffered to loiter within the meaning of the “Nicholson Law” forbidding the keepers of rooms where intoxicants are sold as a beverage to allow minors to loiter therein, from evidence that the minor named in the affidavit was suffered to remain in the room from fifteen to twenty minutes.</p> <p>Instructions to Jury.— Criminal Law. — Saloon.— Loitering. — An instruction in a prosecution, under the “Nicholson Law” for allowing a minor to loiter in a room where intoxicants are sold as a beverage, that if there was a loitering, the length of time during which it was permitted war immaterial, is not erroneous.</p> <p>Trial.- — Evidence.—Remarks by the Court. — Credibility of Witness. —A remark by the court in the presence of the jury in a criminal case upon admitting evidence of statements of a witness contradicting his testimony, that the evidence is admitted as bearing upon the credibility of the witness, does not constitute error.</p>

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

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

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

<p>Appellate Court. — Jurisdiction.—Damages.—Railroad Right of Way. — The Appellate Court has jurisdiction of an appeal from an award of damages in proceedings to condemn lands for a railroad right of way, where the only question involved is the amount of damages recoverable.</p>

<p>From the St. Joseph Circuit Court.</p>

<p>Trial. — Nonsuit.—Trial by Jury. — The defendant cannot require the withdrawal of a case from the jury by a motion for a nonsuit.</p> <p>Appellate Procedure. — Scope of Consideration. — Parties will, in the Appellate Court, be confined to the grounds of objection stated to the trial court.</p> <p>Evidence. — Master and, Servant. — Mining.—Fall of Cage. — Safety Catches. — Evidence as to the distance a cage used in a mine would drop when detached from the hoisting rope, before its descent ought to be checked and stopped by approved safety catches, is admissible to prove that such catches were not in good order at the time of the breaking of the hoisting rope and the fall of the cage.</p> <p>Same. — Expert.—Mining.—Fall of Cage. — Safety Catches. — The distance which a cage used in a mine will drop when detached from the hoisting rope, before its descent ought to be checked and stopped by approved safety catches, is a proper subject of expert testimony.</p> <p>Same. —Mining. —Negligence. —Hoisting Rope. —Cage. —Safety Catches. — Proof of negligence of a master with reference either to the hoisting rope or the safety catches used in connection with a cage operated in a mine is sufficient to charge him with responsibility for. the fall of the cage, although negligence in hoth respects was alleged, and the accident could not have occurred without the existence of defects in both appliances.</p> <p>Same. — Negligence.—Independent Act.— Mine Inspector. — Cage Safety Catches. — Evidence that the State mining inspector on an occasion prior to the accident in question found the safety catches removed from the cages used in the mine, is inadmissible upon a question as to whether the safety catches were in a defective condition at the time of the fall of the cage.</p>

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

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

<p>County. — Public Printing. — Sufficiency of Claim. — County Commissioners’ Allowances. — A claim presented to the board of county commissioners for publishing a specified number of allowances at ■ 3 cents per line, instead of per allowance, is not insufficient, where the total charge shows that the amount charged was 3 cents for each allowance.</p> <p>Same. — Public Printing. — Contract.—The proper officer may contract for the cost of printing allowances at less than 5 cents per allowance, under section 7852, R. S. 1894, requiring the publishing of allowances at a cost not to exceed 5 cents for each allowance.</p> <p>Same. — County Auditor. — Publication of Commissioners’ Allowances. — The county auditor, and not the board of commissioners, is the proper officer to contract for publication of the list of allowances made by the commissioners, under section 7852, R. S. 1894, providing that the auditor shall be required to publish such allowances in a newspaper.</p>

<p>Insurance. — Life.— Avoidance of Policy. — Suicide. — No action, can be sustained on an insurance policy providing that self-destruction by the insured, whether sane or insane, within three years, will avoid the policy, where the insured within such time commits suicide by taking poison, whether the act is deliberately done with such intent or otherwise.</p> <p>Same.' — Demand on Policy. — Denial of Liability. — No demand on an insurance policy is necessary before bringing suit, where the company denies liability on the policy.</p> <p>Same.' — Life.—Suicide by Poison. — Denial of Motion to Save Body Exhumed. — A motion for the exhumation of the body of an insured who is alleged to have committed suicide by taking poison, by which the policy would have been avoided, is properly refused, when made more than nine months after his death, and nearly four months after the commencement of the action and only two days before the beginning of the trial, and no effort for an autox>sy was made before burial, although the company denied liability at that time on the ground of suicide, and no reason for the delay in making the application is shown. (See note at end of opinion.)</p> <p>Evidence. — Life Insurance. — Suicide.-—Ex Parte Evidence Taken Before the Coroner. — Ex parte testimony taken before the coroner over the body of an insured, alleged to have committed suicide, is inadmissible as affirmative evidence in support of the defense of suicide in an action on the policy, where the coroner and all the witnesses examined by him have been produced.</p> <p>Same. — Insurance.-—Suicide.—Letter of Company Denying Liability. —A letter written by the agent of an insurance company denying liability on an insurance policy, on the ground that the insured had committed suicide, in response to a postal card from the administrator of the insured announcing his death, is admissible for plaintiff.</p> <p>Same. — Insurance.—Payment of Premium. — Prima Facie Evidence.— ' A receipt for the first premium on an insurance policy, signed in the name of the general agent and delivered to the insured, and a denial by the company of liability on the policy on the sole ground that the insured committed suicide, constitute prima facie evidence of the payment of such premium.</p> <p>Instructions to Jury.— Erroneous. — When not Cured. — An erroneous instruction is not cured by a correct instruction on the same matter which is contradictory of the former instruction.</p>

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

<p>Landlord and Tenant. — Abandonment of Premises by Tenant. —■ Inability for Rent. — The abandonment of leased premises by the lessee does not discharge him from payment of rent, unless the lessor does something signifying an intention to resume possession.</p> <p>Same. — Abandonment of Premises. — Rent.-—Burden of Proof.— Estoppel. — A lessee who has abandoned the demised premises has the burden of proving in an action for rent, that the lease had been surrendered or that the lessor had estopped itself to claim the rent.</p> <p>Same. — Abandonment of Premises. — Re-renting.—The landlord is not required to rent the premises, after the tenant has abandoned them, for the latter’s benefit.</p>

<p>Insurance. — Accident.—Construction of Policy. — Indemnity Clause. An. accident insurance policy the printed form of which provides for payment of a principal sum in case of death from injury, and of weekly indemnity in case of a total disability for a period not. exceeding fifty-two consecutive weeks, does not cover a case of death from injury, where the part of the policy relating thereto is left blank, and only the actual indemnity clause is filled out.</p> <p>Maxim. — Construction.—Qui hceret in litera, hceret in cortice.</p>

<p>Appeal Bond. — Action, On. — Defect of Parties in Bond. — Recovery: —An action on a bond on appeal from a judgment adjudging the possession of land to two given persons, by virtue of which appellant holds possession of the land, which bond complies in all respects with section 7115, R. S. 1894, except that the name of one of the appellees does not appear therein, may be maintained by both appellees, under section 1235, providing that in an action on a defective bond plaintiffs may suggest the defect in the complaint and recover, the same as if there were no defect.</p>

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

<p>Evidence. — Sufficiency.—Special Finding. — A finding that a note ex- ■ ecuted by a married woman and her husband to their son was without consideration, and merely as surety as to her, is sustained by evidence of the payee that he had charged nothing to her account before the execution of the note, and that he was unable to state any work he had done for her.</p> <p>Same. — Sufficiency.—Special Finding. — Note.—Title.—A finding that a note executed by plaintiff to his father belonged to his mother, is sustained by evidence that it was in the latter’s possession at her death, a few months after that of the father, and that plaintiff was her administrator, listed the note as hers, caused it to be appraised as such, and so held it at the time of the trial.</p> <p>Same. — Concert of Action. — Claims against Estate. — Evidence that two brothers of plaintiff had each filed a claim against the estate of' their father and mother for taking care of them during part of the time in which plaintiff testified that he was working for his mother, is admissible, where the circumstances show that all three were* acting together to recover claims against the estate.</p> <p>New Trial. — Newly Discovered Evidence. — Diligence.—A new trial for newly discovered evidence is properly refused for want of diligence where the affidavit of the alleged newly discovered witness states that he knows the facts to which he will testify because he worked with the party making the motion.</p> <p>Promissory Note. — Transfer.—A valid transfer of a note may be made after the death of the payee.</p> <p>Same. — Signature to. — A note is signed by its maker where she writes her own name thereto, or it is written by another in her presence and by her direction, either with or without her mark. Instruction to [Jury. — When Properly Refused. — An instruction which as written does not accurately state the law is properly refused.</p> <p>Same. — Burden of Proof. — Signature to Note. — An instruction that it devolved on x>laintiff to show that the deceased signed and delivered the note on which suit is brought is proper where the burden of proving the execution of such note rests upon him.</p> <p>Interest. — Note.—When Allowable. — Interest is properly allowed upon a note from its maturity, although it does not specifically call for interest.</p> <p>Appellate Procedure. —Bill of Exceptions. — Affidavits.—New Trial. — The trial court does not, by incorporating in a bill of exceptions affidavits used on a motion for new trial, thereby adopt them as his own so as to establish the truth of the facts therein set forth.</p>

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

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

<p>Pleading.— Complaint for Money Loaned. — Sufficiency. — A complaint alleging that defendant is indebted to plaintiff in a specified amount for money loaned and advanced at the special instance and request of the former, and that he agreed to repay the same, that the same with interest is due and wholly unpaid, and that plaintiff demanded payment before suit, which was refused, is sufficient in the absence of a motion to make more specific.</p> <p>Same. — Complaint.—Repugnancy.—Inconsistency.—A complaint will not ordinarily be held bad for uncertainty and repugnancy, unless the inconsistency is such as to destroy the entire meaning.</p> <p>Same. — Complaint for Money Loaned. —Sufficiency. — A complaint alleging that plaintiff while county treasurer loaned, and advanced to defendant, at his instance and request, a specified amount, upon the latter’s promise to repay the same by a claim against the county for which he would obtain a county order at the meeting of the board of county commissioners, and that defendant had never repaid such amount or obtained any county order, is not bad as impliedly showing that the money advanced was paid from.the county treasury.</p> <p>Assumpsit. — Borrowed Money. — One who borrows money under an agreement to repay tlie same in a county order for the amount thereof may be required to pay the same in money, where he fails to deliver the order according to his agreement.</p> <p>Harmless Error. —Demurrer to Answer. — Sustaining a demurrer to a paragraph of answer is not available error where the evidence in support thereof was admissible under the general denial.</p> <p>Same. — Refusing Leave to File Motion. — Leave Subsequently Granted. —Refusal to allow defendant to file a written motion requesting certain special findings of fact to be made, is not prejudicial error, where the court offered to allow him to file the same thereafter and he refused to do so.</p> <p>Evidence. — Parol.—Explaining Written Receipt.— Parol evidence is admissible to explain an instrument in the nature of a receipt.</p>

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

<p>Pleading. — Complaint.—Contributory Negligence —Personal Injury. —The complaint in an action for injuries caused by negligence, must show either by direct averment or by statement of the facts and circumstances under which the injury occurred, that the injured person was not guilty of contributory negligence.</p> <p>Same. — Complaint.—Contributory Negligence. — An allegation in a complaint alleging that plaintiff’s wife was violently thrown from defendant’s hack because of the negligence of defendant in managing the horses and vehicle, is insufficient to show that the injury occurred without contributory negligence on her part.</p> <p>Evidence. — Opinion as to Value of Services. — Care of the Sick.— Personal Injury. — A witness who took care of plaintiff’s wife after the injury for which suit is brought is competent to give her opinion as to the worth per day of taking care of her, without a further showing that she is acquainted with the value of such services.</p> <p>Same.— Burden of Proof. — Contributory Negligence. — Shifting of Burden. — The burden of proving that no negligence of plaintiff’s wife contributed to the injury for which suit is brought, does not shift from plaintiff on proof that defendant’s negligence was the proximate cause of such injury</p>

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

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

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

<p>Justice of the Peace. — Action for Possession of Real Estate.— Defenses. — Answer.—In an action before a justice of the peace by the landlord' against his tenant who is unlawfully holding over, for the possession of the premises, all defenses are available to the defendant without answer. Section 1528, R. S. 1894.</p> <p>Instructions to Jury. — Action for Possession of Land. — Justice of the Peace. — For instructions in an action before a justice of the peace for the possession of land by a tenant who unlawfully holds over, see opinion.</p> <p>Same. — Evidence Not in Record. — Presumption.—Appellate Procedure. — Where the evidence is not in the record, it will be presumed that the instructions were applicable to the evidence, and that the jury were governed by the instructions.</p>

<p>Agency. — Building Association. — PrepaidtStoclc, Sale of. — Scope of •' Agent’s Authority. — A building and loan association whose agent is not expressly authorized to sell prepaid stock and collect the price thereof, is liable to one for money paid to such agent for prepaid stock sold to him by the agent, the transaction being within the scope of the agent’s apparent authority, and the purchaser being ignorant of any limitations on the agent’s authority ; but without the knowledge, approval or ratification of the association, the agent has no right to trade or agree to trade prepaid stock of his principal for stock in another association.</p>

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

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

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

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

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

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

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

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

<p>From the St. Joseph Circuit Court.</p>

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

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

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

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