Volume 143 — Indiana Reports

<p>Appellate Procedure. — Neto Trial. — Newly Discovered Evidence.— Affidavits Not in Record,. — Alleged error in denying a motion for new trial for newly discovered evidence will not be considered on appeal, where the affidavits in support of such motion are not made a part of the record.</p> <p>Same. — Reversal of Judgment. — Weight of Evidence. — A judgment will not be reversed in the Supreme Court on the weight of the evidence.</p>

<p>Appellate Procedure. — Sufficiency of Evidence. — A finding by the court will not be disturbed on appeal on the ground of the insufficiency of the evidence, where there is sufficient evidence to sustain it.</p> <p>Burden of Proof. — Sale.—Fraud.—Notice.—Real Estate. — The burden of proving that a purchaser of land had notice that such land had been fraudulently omitted from a prior deed to plaintiff rests upon the latter, where he alleges such notice in the complaint.</p>

<p>Railroad —Transfer Track for Convenience of Foundry. — Changing to Main Track. — Easement.—A railway company to which is conveyed a right of way limited to a track right only over specified, land, in consideration of its maintaining a transfer track by the> grantor’s foundry so as to connect its railroad with another railroad, running over the same land, or a spur track from its road to such, foundry, cannot, after a transfer track has been built and maintained for ten years for the special use and convenience of the-foundry, move such track so as to appropriate other land of the. grantor and change the transfer into a part of its main track, thus depriving the grantor of the exclusive use of such track while, loading and unloading cars.</p>

<p>Bailroad. — Personal Injury of Brakeman. — Train Running on Track of Another Company. — Negligence of Fellow-Servant. — A railroad company is not liable for an injury to a brakeman in the service of another railroad company, caused by the negligence of his fellow-servant on a train owned and operated by his employer, merely because the injury was received while the train was running on the road of the former.</p> <p>Same. — Interrogatories to Jury. — General Verdict Overthrown.— Personal Injury of Brakeman. — A general verdict for plaintiff in an action for negligent injuries, under a complaint based on the theory that' a brakeman was employed by defendant, is overthrown by special answers to interrogatories to the effect that plaintiff was not in defendant’s employ, but in the employ of another railroad company, which owned, controlled, and operated the train which injured him.</p>

<p>Elections. — Ballot Prepared by Poll Clerics. — Legality.—Inability of Elector to Read. — A ballot prepared by the poll clerks at the request of an elector who is unable to read and write intelligently is legal, although he states that he can read, under section 6244, R. S. 1894, providing that any elector who “ declares ” that from his inability to read the English language he is unable to mark his ballot, may have the same prepared by the poll clerks.</p> <p>Same. — Tie Vote. — When Election Will Not Be Set Aside. — Case Overruled. — Ah election will not be set aside because a tie vote is produced by adding to the opposing candidate a vote rejected by the -election board, under'section 6313, R. S. 1894, providing that an election shall not be set aside for irregularity or malconduct of such board, unless the contestee was thereby caused to be declared elected when he had not received the “highest number” of votes, nor for illegal votes unless the number thereof taken. from him would reduce his number of legal votes “below” the number given to some other candidate. Gimble v. Green, 134 Ind. 628, overruled in part.</p>

<p>Interest. — Tax Sale. — Redemption.—Imnatie.—-Interest cannot be allowed in computing the necessary amount to redeem a lunatic’s land from a tax sale, under section 8610, R. S. 1894, authorizing a redemption from such sale within two years by any land-owner, on payment of the purchase-money with costs and 25 per cent, additional, and all taxes paid, with interest, and section 8611, authorizing a redemption in a similar manner by insane persons within, two years after their recovery.</p> <p>Tax Sale. — Redemption.—Lunatic.—Conveyance.-—A purchaser at a tax sale of land belonging to a lunatic, who has received a tax deed, cannot, on redemption, recover under section 8641, R. S. 1894, providing that where any conveyance pursuant to a tax sale proves invalid the purchaser shall be entitled to recover from the owner the amount of legal taxes, charges and interest at 20 per cent, from the date of the sale, and all subsequent taxes paid with like interest, as by sections 8610, 8611, such lunatic has the right to redeem within two years after the expiration of the disability by paying the amount paid at the tax sale, with costs and penalty not exceeding 25 per cent, in addition, and the taxes which have been paid thereon, with 6 per cent, interest.</p> <p>Opinion on Petition, by Monks, J.</p>

<p>Railroad. — Personal Injury of Employe by Negligence of Fellow-Servant. — Recovery.—Rules and Regulations. — Recovery cannot be had for injuries to railroad employes from the failure of other employes to observe the rules for operation of trains, adopted and promulgated by the company. (See note at end of opinion.)</p> <p>Same. — Train Dispatcher, Incompetency. — Special Finding. — Rules and Regulations. — Findings of the jury that a train dispatcher had issued forty orders for trains to rim ahead of schedule time and to depart from stations before schedule time, and that his office was in the same building as that of the president of the road, are evidentiary merely, and not the equivalent of a finding of the ultimate fact as to the competency of such dispatcher, especially where the rules of the company permitted him to make such orders.</p> <p>Same. — Rules and Regulations. — Promulgation.—Extra Trains.— The adoption and promulgation by a railroad company of rules permitting regular trains to be converted into extra trains running without a schedule, and requiring trains of the latter class to take a side-track at least five minutes before the arrival of any scheduled train at the last station to which it is safe for the extra train to run, exonerates the company from liability for the death of an engineer of a schedule train from a collision between it and such an extra train running ahead of its ordinary schedule, due to the non-observance of the rule as to side-tracking by his co-servants in charge of such train.</p> <p>.Same. — Personal Injury. — Negligence of Fellow-Servant. — Special Train.- — A railroad company is not liable for the death of an engineer caused directly by the negligence of a fellow-servant in failing to observe the general rules of the company in connection with a special order and in running past a station instead of waiting on a side-track for such engineer’s train.</p> <p>Special Finding. — Question Not in Issue. — A special finding of a jury upon a question not in issue will be disregarded.</p> <p>Presumption. — Appeal.—Special Verdict. — Presumptions will not be indulged in on appeal for the sake of supporting a special verdict.</p> <p>Note. — On. the question whether a train dispatcher is a fellow-servant of trainmen, the authorities are found in a note to Little Rock & M. R. Co. Burry (Ark), 25 L. R. A. 386).</p>

<p>Pleading. — Filing amended Complaint Takes Original Complaint and Answer Out of Record. — Appelate Procedure. — The originalcomplaint and an answer filed thereto are taken out of the record by the subsequent filing of an amended and substituted complaint.</p> <p>Evidence. — Purchase of Chose in Action. — Enforcement.—Necessary Proof. — One who acquires title to a right of action against a township, by purchase on the foreclosure of a mortgage executed by a ■ railroad company which owed such claim, is not, in enforcing such right, freed from the necessity of showing a valid judgment, order of sale, and deed, under sections 736-738, R. S. 1894, doing away with the necessity of such proof where any debt or thing in action legally or equitably assignable is “given up by defendant” and sold on execution, and the sheriff “assigns and delivers” the same to the purchaser.</p> <p>Same. — Chose in Action. — Action on by Assignee. — Ansioer of Assignor. — Title.—In an action against a township to recover on a right of action claimed to have been assigned to plaintiff, the answer of the alleged assignor, which is made a party defendant, admitting an assignment to plaintiff of all its right, title, and interest to such claim, is not admissible against the township to prove plaintiff’s title.</p> <p>Same. — Tifie.—Deed.—Railroad.—A deed conveying the roadbed, track, and all other property of a specified railroad company, purporting to have been executed under a decree foreclosing a mortgage executed by such company, is insufficient evidence of the purchaser's title, where no judgment, decree, order of sale, execution, or return is given in evidence.</p> <p>Statute oe Limitations.- — Six Years’ Statute. — Fund for Aid of Railroad. — Conversion to Use of Defendant. — A complaint' giving a detailed account of a litigation concerning a fund for which suit is brought, received by defendant township, and the transfer of the same to plaintiff by sale under a mortgage foreclosure, and alleging that plaintiff demanded payment of the sum, and that defendant has wrongfully converted it to its own use, does not state a cause of action based on a judgment, but one for money received from a fund belonging to plaintiff and wrongfully converted to defendant’s use. which is barred by the six years’ statute of limitation.</p>

<p>Instructions to Jury. — Filing.—Record.— Instructions must be filed under section 542, R. S. 1894, to make them a part of the record.</p> <p>Evidence. — Mortgage.—Certificate of Acknowledgment. — The certificate of the acknowledgment of a mortgage before an authorized officer is sufficient prima facie evidence of its execution to entitle it to be read in evidence.</p>

<p>Tax Lien. — Against Land of Lunatic. — Foreclosure.—Guardian.— A tax lien against land belonging to a lunatic cannot be ordered foreclosed and the land sold to pay the lien, in an action by the lunatic’s guardian to recover possession of the land and to cancel the lien, under sections 8610, 8611, R. S. 1894, giving lunatics two years after their recovery to redeem from a tax sale.</p> <p>Same. — Sale.—Possession.—A lien for taxes on land belonging to a lunatic, in favor of a purchaser of such land at a tax sale, does not entitle the purchaser to the right of possession.</p>

<p>Common Schools. — Transfer of Pupil from One School Corporation, to Another. — The trustee of a school corporation cannot deny anew transfer of a pupil from the school corporation of his residence in. pursuance of section 5959, R. S. 1894, for a year subsequent to that when the original transfer was made, where it has enumerated such, pupil in the last enumeration as transferred for such subsequent year and received the distribution of the State school tax and other funds based on such enumeration, and levied and collected a part of all the school taxes upon the property of his father placed upon the duplicate of the year in question under the law concerning-transfers, and admitted the pupil to the school for the greater part of the school year.</p> <p>Same. — Transfer of Pupil. — The transfer for school purposes authorized by section 5959, R. S. 1894, providing that when persons can be better accommodated at the school of an adjoining township or of any incorporated town or city, the trustee of the school corporation in which they reside shall, upon request, at the time of making the enumeration, transfer them for educational purposes, is only for the next school year; and a person so transferred must request and procure a transfer at the time of making the enumeration each year so long as he wishes the same to continue.</p> <p>Same. — Transfer of Pupil. — School Town — School City. — Atransferfor school purposes may be made from any school corporation, including a township, to another in the same or adjoining county, undej section 5959, R. S. 1894, providing that when persons can be better accommodated at the school of an adjoining township or of any incorporated town or city, the trustee of the school corporation in which they reside shall, at such person’s request, transfer them for educational purposes, when construed with sections 5958, 5960, but a transfer cannot be made to a township unless it adjoins the school corporation from which the transfer is made.</p> <p>Same. — Transfer from One School Corporation to Another. — Appeal to County Superintendent. — A transfer of a person for school purposes by the trustee of a township to another town or city, under section 5959, R. S. 1894, becomes final after the lapse of thirty days from the giving of the notice of such transfer to the trustee of the down or city to which the transfer is made, required by that section, without an appeal to the county superintendent, as provided by section 6028, authorizing an appeal to such superintendent from all ■decisions of trustees relating to school matters, and that such appeals shall be governed by the rules relating to appeals from justices of the peace to circuit courts.</p>

<p>Subrogation. — Purchaser at Invalid Execution Sale. — Sheriff’s Deed. —Redemption.—Appeal.—A judgment creditor who purchases certain land at a sale on execution issued under his judgment, and ’ receives a sheriff’s deed which is held invalid on appeal because of the sheriff’s failure to have appraised the rents and profits of the land sold, is entitled to be subrogated to the rights of a prior judgment creditor to whom the same land is sold under his judgment, where he redeems the land from such sale pending his appeal, although such redemption is made not as a junior judgment creditor, but as the owner of the land.</p>

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

<p>Will. — Devise in Fee Simple to Wife not Limited by Subsequent Precatory Words. — An absolute devise in fee of certain land to the testator’s wife is not limited or charged with any trust by a subsequent provision in the will, that it is the testator’s “request and wish’’ that she will make such provision by will, or otherwise, that at her death a specified son of the testator may share equally in the property -willed to her, with the testator’s other children.</p>

<p>Railroad. — Passenger.— Injury while Alighting from Train. — Contributory Negligence.- — A woman is guilty of such contributory negligence as will prevent a recovery, in attempting to alight unaided with heavy bundles in her arms from a train, the step of which is more than two feet above the platform while the train is in motion ■ and increasing its speed, although she does so from fear that she will be carried beyond her station. (See note at end of opinion.)</p> <p>Sake. — Negligent Construction of Station Platform,. — Passenger.— Injury while Alighting. — For a railway company to construct a station platform twenty-six inches below the level of the lower steps of the cars, so as to compel passengers to jump that distance when alighting, is such negligence as will render it liable for injuries sustained by a passenger who is thrown from the car to the platform upon the sudden starting of the train while she is attempting to get off, and who is free from contributory negligence, especially where it fails to give her sufficient time to alight.</p> <p>Same. — Passenger Injured while Alighting. — Contributory Negligence. — A railway passenger who, upon going -with heavy bundles upon a car platform to alight at her station, and seeing that the car has started without giving her time to get off, goes down the steps and jumps off onto the station platform, and is injured, is guilty of such contributory negligence as will prevent a recovery, although her action is caused by fear that she will be carried beyond her , station, it being her duty to remain on the car, and, if damaged by being carried beyond, to sue the company therefor.</p> <p>Note. — A very extensive review of the authorities as to injuries in getting on and off railroad trains is contained in a note to Carr v. Eel River & E. R. Co. (Cal.), 21 L. R. A. 354.</p>

<p>Bill or Exceptions. — When not Properly in the Record. — Statement of Trial Judge. — Filing.—Signing.—A bill of exceptions purporting to have been signed and filed after the expiration of the time limited therefor, will not be considered on appeal, notwithstanding a statement signed by the trial judge that it was presented to him in due time, where such statement follows the signature of the judge in the bill instead of being contained therein as required by the statute.</p>

<p>Appellate Procedure. — Affidavits Charging Misconduct of Parties and Jurors. — Bill of Exceptions. — Affidavits charging misconduct of parties and of jurors, and counter-affidavits in denial and in explanation of such charges, present no question for review on appeal, where they are not in the record by a bill of exceptions.</p> <p>Same. — Sufficiency of Instruction. — Record,.—The sufficiency of an instruction will not be passed upon by the appellate court where the record does not disclose that it contains all the instructions given.</p> <p>Same. — Commissioners’ Court. — Objections to Proceedings. — Jurisdiction. — Highway.—Objections to the proceedings before a board of county commissioners upon which that court assumed jurisdiction of the subject-matter of, and parties to, a proceeding to establish a highway under the statutes, are not available on appeal from a judgment of the circuit court establishing the highway and disallowing the remonstrant’s claim, where he appeared generally before the commissioners’ court and the circuit court, and did not raise such objections in either.</p> <p>Same. — Weight of Evidence. — The Supreme Court cannot, upon appeal from a judgment of the circuit court establishing a highway, weigh the evidence as to public utility to determine conflicts, and pass upon the question of preponderance, but the evidence must be accepted as supporting the verdict upon that question, where there is evidence which, if standing alone, would support it.</p> <p>Eminent Domain. — Establishing Highway. — Offsetting Damages by Benefits. — The rule that the benefits resulting from the establishment of a highway may be considered as against any damages for land taken is not in violation of the Const., article 1, section 66, providing that no man’s property shall be taken without just compensation.</p>

<p>Municipal Corporation. — City Ordinance. — Passage.—Suspending Rules. — An ordinance providing that all ordinances shall be read three times before being passed, and that no ordinance shall pass or be read the third time on the same day in which it was introduced unless the rule be suspended by a two-thirds vote, cannot be annulled or repealed by a mere majority vote.</p> <p>Same. — City.—Enacting Ordinance. — Mode of Procedure. — The mode of procedure in the enactment of ordinances when committed to the authority or power of a city council, and not regulated by the charter law of that city, may be fixed by an ordinance which will govern so long as it is enforced in the enactment of all ordinances.</p> <p>Same. — City.—Creating Additional Wards. — The creation of additional wards, thus occasioning a vacancy in the office of councilman, which the council can fill by appointment, under the act of February 26, 1891, is within the power of the council, under section 3470, E. S. 1894 (Acts 1891, p. 83).</p> <p>Same. — City.—Duty of Mayor to Recognize Members of Common Council, etc. — Mandamus.—The duty of a mayor to recognize members of a common council and permit them to exercise their duties as such may, in case of his refusal, be enforced by mandamus.</p>

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

<p>Appeal. — From Board of Commissioners. — Highway.—Dismissal of Appeal. — Aeeeptanee of Damages Awarded. — Release.—The acceptance by a remonstrator of the amornit awarded him by the decision of the board of county commissioners as damages from the establishment of a highway, after the dismissal of an appeal from such decision by the circuit court, and after the filing of the transcript upon appeal from the judgment of dismissal in the Supreme Court, is a release of the error of the circuit court in dismissing the appeal.</p> <p>Appellate Procedure. — Presumption.—Notice.—Answer.—The Supreme Court will presume the facts stated in an answer in bar of the appeal to be true, where the appellant was duly notified in writing, service of which he acknowledged, long before the answer was filed, that such answer would be filed, and he failed to put in any denial óf such facts in any form of pleading or otherwise.</p> <p>Highway.— JRemonstrators. — Several Appeals. — Separate Transcripts. — It is not essential to the prosecution by different remonstrators of several appeals to the circuit court, from a decision of the board of county commissioners awarding damages from the establishment of a highway within a single county, that several and separate transcripts of the saíne record be filed, as under section 6754, R. S. 1894, it is apparent that an appeal in the proceeding is an entirety.</p>

<p>Assignment of Errors. — Collective.—Conchisions of Law. — An assignment of error that the court erred in its “conclusions of law,” of which there are several, fails if any of the conclusions are correct.</p>

<p>Mortgage. — Quitclaim Deed by Wife of Mortgagor. — Indemnifying Mortgage on other Land to Wife by Mortgagor, to Secure Her Inchoate Interest in the Land Mortgaged. — The consideration paid by a mortgagee of land for a quitclaim deed thereto executed by the •wife of the mortgagor will be deducted in determining the amount due the wife under a mortgage on other land from her husband, indemnifying her inchoate interest in the former land, whether the • payment was made to her or to some one else with her consent.</p> <p>Same. — Indemnifying Mortgage. — Inchoate Interest of Wife. — A mortgage executed by a husband to his wife, conditioned upon his fully paying and satisfying a mortgage on other land and saving to the'wife her inchoate interest in such land, and expressly providing that the husband shall pay a specified amount which is the same as that for which such other mortgage was given, is an indemnifying mortgage only, but the wife is entitled to recover thereon the amount of her loss where the husband becomes insolvent and fails to pay such other mortgage, although she joins with him in a quitclaim deed to the land covered thereby instead of waiting for the mortgage to be foreclosed.</p>

<p>Public Improvement. — Widening Street. — Resolution.—Nunc Pro Tune Entry. — Municipal Corporation. — A nunc pro tunc entry upon the minutes of a common council, to supply the omission of a former entry of the resolution submitting to the city commissioners the question o'f widening a street, to show that the resolution was adopted by a two-thirds vote, as required by section 3630, R. S. 1894, is binding upon a purchaser of property affected in the interval between the original and the nunc pro tune entry, where the original entry did not affirmatively show a non-compliance with the statute. (See note at end of opinion.)</p> <p>Same. — Street.—Eminent Domain. — Compensation.—Tender.—Land cannot be appropriated for the purposes of a street unless compensation is first assessed and paid or tendered.</p> <p>Same —Street.—Damages Assessed. — Tender.—Payment.—Appellate Procedure. — A finding that damages assessed by city commissioners on account of the appropriation of land for the widening of a street, have not been tendered to the owner, will not be deemed, on appeal, -to negative payment of such damages, as an offer of payment may have been made and accepted, which, if unaccepted, would not have been effectual as a tender, and a finding may have been intended merely to negative a tender, under section 3646, R. S. 1894, which does not involve an actual offer of the money.</p> <p>Appellate Procedure. — Special Findings of Fact and Conclusions of Law Blended. — Purported findings of fact which embraced legal conclusions inseparable from the facts, or which may have been made up and composed of matters of fact and law blended inseparably, will not be considered on appeal.</p> <p>Burden of Proof. — Tender.—Payment.-—Damages.—Public Improvement. — Street.—The burden of negativing tender Or payment of damages assessed for land appropriated for widening a street, the failure to pay or tender which is essential, under section 3644, R. S. 1894, to an action to enjoin the proceedings, is upon the plaintiff in such action.</p> <p>Same. — Right Dependent Upon a Negative. — A party whose right is dependent upon a negative has the burden of proving such negative.</p> <p>Same. — Purchaser of Premises Affected by Public Improvement.— Resolution. — -Municipal Corporation.-^Nunc Pro Tunc Entry.— One who asserts that a nunc pro tunc entry upon the minutes of the. common council, showing that the Submission of the question • as to the widening of a street to the commissioners was by a two-thirds vote, as required by section 3630, R. S. 1894, is not binding upon him, upon the ground that he purchased the premises affected after the submission and before such entry, has the burden of showing that he is such a purchaser.</p> <p>Note. — The authorities as to the entry of a judgment nunc pro tuna are collated in a note to O’Sullivan v. People (Ill.), 20 L. R. A. 143.</p>

<p>Appellate Procedure.- — Overruling Demurrer to Paragraph of Complaint. — Finding and Judgment on Another Paragraph. — The overruling of a demurrer to a paragraph of a complaint will not be review-ed on appeal, where it is admitted that the case was tried and finding made and judgment for plaintiff rendered on another paragraph.</p> <p>Same. — Sufficiency of Evidence. — Bill of Exceptions. — Filing.—The sufficiency of the evidence to sustain the judgment cannot be considered where nothing in the record shows that the bill of exceptions was filed in the office of the clerk after it was signed or that it contains all the evidence.</p> <p>Bill of Exceptions. — Signature of Judge. — Filing.—Record.—A bill of exceptions to become a part of- the record, -under section 641, R. S. 1894, must be first signed by the judge and then filed with the clerk.</p> <p>Partition. — Personalty, Stock of Merchandise. — Equity.—Tenants in Common. — An action in equity will lie for the partition of a stock of merchandise purchased under an agreement that it should be divided equally between the purchasers, in favor of one purchaser against the other, who is in exclusive possession, even if he denies the former’s title.</p> <p>Replevin.— Co-Tenants. — Trover. —Title. — Neither replevin nor trover will lie in favor of one co-tenant of personalty against the other who is in exclusive possession thereof, but who does not deny the title of the former. (See note at end of opinion.)</p> <p>Note. — The liability of a tenant in common to an action of trover is the subject of an extensive note to Waller v. Bowling (N. C.), 12 L. R. A. 261.</p>

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

<p>Appellate Procedure. — Sufficiency of Evidence. — Bill of Exceptions. — A question on appeal depending on tlie evidence cannot be considered where the evidence is not in the record, or, if in the record, the bill of exceptions does not contain all the evidence.</p> <p>Bill of Exceptions. — Filing.—Record.—A bill of exceptions is not properly in the record where the record does not disclose that it was filed in the office of the clerk after it was signed by the trial judge.</p> <p>Receiver. — Setting Aside. — Restoring Goods. — Hearing Second Petition For. — Practice.—The court may hear a second application for the appointment of a receiver before setting aside the first appointment and restoring the goods held by the receiver, where the first appointment is.set aside and the goods restored previous to the making of the second order appointing the'same person receiver again.</p> <p>Same. — Void Order. — Same Person Appointed Second Time. — One who has been appointed receiver under a void order, may be again appointed under a subsequent order, even without vacating or setting aside the order claimed to be void.</p>

<p>Judgment. — Foreclosure Decree Against Guardian of Insane Person. —Setting Aside.- — Notice.—A decree of foreclosure against the guardian of an insane person who is served with notice of the commencement of the action will not be set aside, under section 399, R. S. 1894, on the ground of his excusable neglect where attorneys appeared for him in such action, although they were .unauthorized, unless it is made to appear not only that such attorney had no authority and that there is a meritorious defense to the cause of action, but also that the rights of bona fide purchasers or other innocent third" parties have not intervened.</p> <p>Same. — Mortgage by Guardian of Insane Person. — Foreclosure.—Setting Aside Decree. — Notice.—Appearance by Attorney. — -A decree foreclosing a mortgage executed by the guardian of an insane person will not be set aside, under section 399, R. S. 1894, on the ground of excusable neglect of such insane person because she was not served with summons and did not authorize an appearance by attorney in "the action as she was neither a necessary nor proper party defendant.</p>

<p>Appellate Procedure. — Sufficiency of Paragraph of Complaint.— When Will Not Be Considered. — The sufficiency of paragraphs of a comxilaint as to which a demurrer has "been sustained will not be considered on appeal, where all of the facts stated therein could have been proved under another paragraph which was left standing.</p> <p>Appeal Bond. — Term-Time Appeal. — Abandonment.—Vacation Appeal. — Nonpayment of Judgment. — The nonpayment of a judgment affirmed uxion a vacation axuieal does not constitute a breach of the condition for the xiayment of judgment which may be rendered or affirmed, in a bond given on a term-time appeal which was abandoned before the taking of the vacation appeal by failure to file the transcrixit within sixty days after filing the bond, as required by section 650, R. S. 1894</p> <p>Same. — Term-Time Appeal Bond. — Breach, Nonpayment of Judgment Affirmed on Vacation Appeal. — The breach of the condition of a term-time appeal bond, that the appellant will prosecute his appeal, does not support recovery against the sureties, under a complaint assigning as the sole breach the nonpayment of the judgment affirmed upon a vacation appeal taken after abandonment of the term-time appeal.</p>

<p>Pleading. — Answer.—Objection to Jurisdiction.- — Action to Forfeit Charter of Railroad Corporation. — In Wrong County. — Waiver.— An objection to the jurisdiction in a proceeding to forfeit the charter of a railroad company on the ground that it was brought in the wrong county is waived if not raised by answer, where the fact does not appear upon the face of the complaint.</p> <p>Summons — Railroad Company Organized in this State. — Service on Officer in Another State. — Service on a railroad company incorporated in the State cannot be made on an officer or director of the company in another State, under section 319, R. S. 1881 (section 321, R. S. 1894). (See note at end of opinion.)</p> <p>Same.— Proof of Service. — Railroad Corporation. — No Officer or Authorized Agent in County.- — Proof of service of process upon a corporation, under 2 G. & H. Stat. 63, 2 Davis Sta't. (1876) 49, if that is still in force, cannot be made without proving that no officer or person authorized to transact business resides within the county where the corporation has been located or has exercised its powers.</p> <p>Note. — On the question who may be served with process in suit against a foreign corporation, a great number of authorities are found in a note to Foster v. Chas. Betcher Lumber Co. (S. Dak.), 23 L. R. A. 490,.</p>

<p>Municipal Corporation. — City. — Annexation of Territory. — Amended Petition on Appeal, Exeluding Certain Territory Included in Original Petition. — Petitioners for the annexation of certain territory to a given- city may be permitted on appeal to the circuit court, from an order of annexation by the commissioners’ court, to file an amended petition excluding certain territory included in the original petition, under section 4224 et seq., R. S. 1894, giving the right of appeal to the former court and providing that such appeal shall be tried and determined as an original cause.</p> <p>Same. — City.—Annexation of Territory. — Appeal from Commissioners’ Court. — Injunction.—Answer.—Notice.—Jurisdiction.—An answer in an action to enjoin the annexation of plaintiff’s territory to defendant city need not allege notice to plaintiff of an appeal from an order of annexation by the commissioners’ court to the circuit court, where the jiurisdiction of the latter court over the person of plaintiff was not questioned by the complaint.</p> <p>Evidence. — Annexation of Territory to City. — Appeal Bonds.— Harmless Error. — The admission in evidence in an action to enjoin the annexation of certain territory to a given city of the bonds given by certain parties on appeal to the circuit court from an order' of annexation by the commissioners’ court, upon which appeal the lands of such parties were omitted from the petition describing the land to be annexed, is not prejudicial to plaintiff.</p>

<p>Will. — Intention of Testator. — The intention of the testator will be carried out, in construing a will, so far as it can be done lawfully and consistently.</p> <p>Same. — Devise of Land. — When Vests. — A devise of land will be deemed to vest at the death of the testator unless an intention to the contrary on the part of the testator clearly appears.</p> <p>Same.' — Devise in Fee, When Not Cut Down by Subsequent Provisions. —A devise in fee cannot be cut down by subsequent provisions of the will unless the intention to do so is manifest from words as clear, certain and effective as those which created the fee.</p> <p>Same. — Devise.—Suspension of Power of Alienation. — An unlawful suspension of the power of alienation for a longer period than any number of lives in being is created by a will forbidding absolute devisees of land to alienate the same for twenty-five years after the execution of the will.</p> <p>Same. — Devise.—When Vests. — Provisions in Case of Death of a Devisee. — A devise to the testator’s children “and to their respective heirs forever ” vests absolutely on the death of the testator, notwithstanding a subsequent provision that, upon the death of any child without lawful issue living at the time of such death, his share shall pass absolutely to such of the children as shall then be living and the descendants of such as are dead, and a provision in a codicil executed after the death of one child, devising the share given her by the will to her only child, subject to the same “limitations and restrictions” under which she would have taken under the will.</p> <p>Same. — Devise.—Fee Simple. — Devise Over. — Vesting.—A devise in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of the death without issue of such primary devisee, vests absolutely in the latter upon the' death of the testator during°his lifetime.</p>

<p>Evidence. — Gift, Invalidity Of. — Growing Crop. — Life Tenant.— Real Estate. — Evidence that a life tenant of land stated about a year before his death that all his personal property was to “go to ” the remainder-man, is insufficient to show that a gift to a third person by such life tenant of a growing crop of corn which is not in existence at the time of such statement was invalid.</p> <p>Real Estate. — Death of Life Tenant. — Growing Crop. — Remainder-man. — A life tenant may as against the remainder-man dispose of a crop of com growing on the land at the time of his death.</p>

<p>Criminal Law. — Indictment.—Duplicity.—Appellate Procedure.— An indictment cannot first be attacked on appeal on the ground of duplicity.</p> <p>Appellate Procedure. — Affidavits in Support of Motion for New Trial. — Striking Out. — Record.—Criminal Lato. — Alleged errors in striking out an affidavit filed in support of- a motion for new trial in a criminal action cannot be considered on appeal, where such affidavit is not contained in the' bill of exceptions, and is merely referred to therein as having been previously inserted in the record at a specified page.</p> <p>Evidence. — Copy of Register of Insane Hospital. — Sufficient Verification.- — An affidavit by the superintendent of a hospital, that a copy of a register, which he is required by section 8040, R. S.. 1894. to keep, is “ a true copy of the records as they appear at said institution,” is insufficient to authorize its admission in evidence, under section 466, making such copies admissible when duly verified as being “ true and complete ” copies.</p> <p>Same — Proceeding of an Examination by a Commissioner as to Sanity. — Criminal Law. — Insane Hospital. — The proceedings of an examination by a commissioner as to the sanity of a given person instituted to determine if she is a proper subject to be admitted as a patient into a hospital for the insane, finding that she is of sound mind, and at times feigned insanity to escape criminal prosecution, is inadmissible against such person on a criminal prosecution against her.</p>

<p>County Seat. — Removal.—Local Legislation. — County Business.— The relocation of a county seat is not within the prohibition of the Const., Art. 4, section 22, against local legislation regulating county and township business, as the term business signifies the conduct of the usual affairs of the county, and of such as commonly engage the attention of county officers, and not an act which can be done only in a particular case and by authority of a special law.</p> <p>Same. — Removal.—Constitutional Law. — Notice.—Statute Construed. —A statute providing for the relocation of the county seat of a particular county is not invalid because it does not provide for notice of the proceedings for the removal, as such proceedings are not an ordinary adversary proceeding which will affect the rights of life, liberty or property.</p> <p>Same. — Removal.—Sufficiency of Petition. — Removal Act of 1889.— A petition for the relocation of a county seat, under the act of March 9, 1889, providing that whenever fifty-five per cent, of the legal voters shall by petition request the county commissioners to relocate the county seat, designating the site desired, and that its provision shall apply only where an appraisement and election has been had prior to its passage, need not aver that such election and appraisement were had.</p> <p>Same. — Removal.—Appeal to Circuit Court. — Trial De Novo. — Remanding. — On appeal from the action of a board of county commissioners on which the cause is tried de novo, the right to remand a petition for the relocation of a county seat exists the same as if made before the cause was tried by the board of commissioners.</p> <p>Same. — Removal.—Remonstrance, Time of Filing. — Appeal.—Remonstrance against the relocation of a county seat cannot be first filed or offered in evidence on appeal from the decision.of the county commissioners, under the act of 1889, p. 299, section 2, providing that every filer of any petition or remonstrance shall be liable to the action of the grand jury for false filing of names, which is the only provision as to filing.</p> <p>Same. — Removal.—Instruction. —Number of Legal Voters in County. —II oio Determined. — An instruction upon a trial of the question of the relocation of the county seat, upon appeal from the county board, that the number of names on the poll books of the precinct election officers is to be taken as the true number of legal voters in the county, is properly refused in view of the provision of the act of March 9, 1889, that the number of legal ballots cast at the next preceding general election at which a congressman was voted for, with ten per cent, added, shall be considered the whole number of votes of such county.</p> <p>Same. — Removal.—Instruction.— Prima Facie Evidence. — Petitions and Affidavits. — An instruction on a trial as to the relocation of a county seat, under the act of March 9, 1889, that' the petitions and affidavits are prima facie evidence that they were signed by the persons whose names are attached thereto, is not reversible error, where from the remainder of the instruction the jury could not have -understood that the petitions are to be considered as evidence without the accompanying affidavit.</p> <p>Same. — Removal.—Instruction.—Petitioner Ceasing to Be a Legal Voter after Signing Petition. — Harmless Error. — An instruction upon a trial as to the relocation of a county seat authorizing the counting of a petitioner who has ceased to be a resident of the county since he signed the petition, is harmless, if error, where no complaint is made that any petitioner ceased to be a legal voter after he signed the petition.</p> <p>Same. — Presumptive Evidence. — Name of Person Appearing on Petition, Who Swears He did Not Sign Same. — There is no presumption that a person who testifies that he did not sign a petition for the rélocation of a county seat is the person of the same name whose signature purports to be attached to the petition, where the inquiry involves the canvass of all the voters of the county without regafd to townships or voting precincts.</p> <p>Same. — Removal.—Erroneous Instruction as to Signatures. — Appellate Procedure. — Reversal of Judgment. — A judgment for removal of a county seat will not be reversed on appeal because of error in an instruction as to a presumption against the validity of signatures of the petitionerswhere the whole record shows that the merits have been fairly tried and determined.</p> <p>Same. — Removal.—Name on Remonstrance. — Defense.—Same Person Having Previously Signed Petition. — A name upon a remonstrance to the relocation of a county seat, under the act of March 9, 1889, providing that any person may defend by proof that any of the petitioners have since signed the remonstrance, has no effect unless the remonstrator had previously signed a petition.</p> <p>Same. — Removal.—Names on Petition. — Discredit is not thrown upon all of the names upon a petition for the relocation of a county seat, by proof that a name on such petition is not entitled to be counted.</p> <p>Same. — Removal.—Instruction.—Qualification of Petitioner, Sanity, etc. — Harmless Error. — Error in an instruction that no standard of intelligence or sanity is fixed as a qualification for the petition for the relocation of a county seat, is not cause for reversal where it cannot affect sufficient petitioners to make the total number of competent petitioners less than the per cent, required by statute.</p> <p>Same. — Removal.—Cross-Examination of Affiants as to Truth of Facts in Affidavit. — Opponents to the relocation of a county seat, under the act of March 9, 1889, are not entitled to cross-examine the affiants to the petition as to their personal knowledge of the facts stated in the affidavit.</p> <p>Same.— Removal.— Appeal to Circuit Court.— Power of Circuit Court to Render Final Jiidgment.- — The circuit court, on appeal from the decision of the county commissioners, under the act of March 9, 1889, as to the relocation of the county seat, may render a final judgment for such relocation under the provision that the appeal shall be under the same regulations as provided by law for appeals in other cases from the board of commissioners, and the section 7805, R. S. 1894, providing that the court, on such appeals, . may make a final determination of the proceedings appealed, cause the same to be executed, and send the same down to such board with an order how to proceed.</p> <p>Same. — Removal.—Signature to Petition. — Omission of Month, Day and Hour of Signing. — Failure to designate the month, day or hour of the signing of a petition for relocation of a county seat, as provided by the act of March 9, 1889, will not invalidate the signature, where none of the petitioners have afterwards signed a remonstrance, as the sole object of stating the time of signing is to determine whether a petition or remonstrance was first signed by the particular petitioner.</p> <p>Same. — Removal.—Signing Both Petition and Remonstrance, and Afterwards Another Petition. — Counting.—The name of one who signs a petition, subsequently signs a remonstrance, and still later signs another petition, for the relocation of a county seat, -under the' act of March 9, 1889, must be counted under the provision allowing as a defense only the fact that the petitioner “afterwards signed a remonstrance.”</p> <p>Same. — Removal.—Statute.— Local.— Constitutional Law. — An act relating to the removal of county seats which in its operation can refer only to a single county, being on the subject not embraced within the prohibition of the Const., Art. 4, section 22, against local legislation upon the particular subjects mentioned, the determination of the Legislature, by its enactment, that a law of general and uniform operation throughout the State cannot be made applicable as required by section 23 to authorize local legislation, is final and conclusive upon the courts.</p> <p>Judicial Notice. — History of Country and State. — Courts will take judicial notice of the history of the country and of the State. (See note at end of opinion.)</p> <p>Same. — Location of County Seats. — The courts will take judicial knowledge of the location of every county seat in the State.</p> <p>Same. — Election for Removal of County Seat. — Appraisement.—Public Acts. — History.—The court will take judicial knowledge of every election for removal of a county seat, and appraisement of the public buildings of the county, under a State statute, as being public acts, a record of which is required to be.kept by public officers, that are part of the history of the county.</p> <p>Note. — -The power of the court to take judicial notice of facts is the subject of a very extensive note to Olive v. State (Ala.), 4 L. R. A. 33.</p>

<p>"Will. — Devise.—Rife Estate. — Remainder, When Vests. — Real Estate. —A devise to the testator’s wife for life, and at her death to a specified daughter if she still survive, and otherwise to the heirs of the latter, vests the remainder in such daughter at the death of the testator.</p>

<p>Specific Performance. — Contract in Deed to Pump Water from Well for Benefit of Grantor, at Specified Daily Bate. — An executory contract by the grantee in a deed to pump water from a well upon the premises for the benefit of the grantor at specified daily rate, is too indefinite to be specifically enforced, where there is no limit of time and no provision as to' the repair or replacement of the pumps, or the sinking of the well deeper in case the water should fail.</p> <p>Contract. — Hi Deed, to Pump Water for Benefit of Grantor. — Indefinite Period.— When Terminated. — A contract in a deed by which the grantee agrees for an indefinite period to pump water at a daily • compensation for the use of the .grantor, is terminated when the pumping machinery becomes wholly worn out and the well fails to furnish water.</p> <p>Same. — Termination of Contract. — Remedy of Grantor. — -Under a contract in a deed by which the grantee is to pump water from a well upon the premises for the benefit- of the grantor, at a certain sum per day, the latter to have the right, upon the failure of the grantee to pump water, to operate the well and use water therefrom, the grantee is bound to pump only so long as his works make it convenient for him so to do; and as soon as he fails, the remedy of the grantor is to enter upon the land and procure water from the well at his own expense.</p> <p>Same. — -In Deed. — Aceeptance by Grantee. — Performance.-—Statute of Frauds. — The acceptance by the grantee of a deed containing a contract on his part to pump water from' a well upon the premises conveyed for the benefit of the grantor, for an unlimited period, and his actions under such contract are equivalent to a signature thereof by him, which will take the contract out of the statute of frauds.</p>

<p>Estoppel.— Railroad. — Remonstrance.— Drainage Assessment.— A railroad company whose assessments for benefits from the construction of a drain are reduced in view of its remonstrance that it should be allowed for the cost and expenses of making a proper passage way under its track, is estopped to assert that the cost of disturbing its bridge over the drain was not a proper ground of remonstrance.</p> <p>Evidence. — Drainage.-—Character of Country and Earth Through Which the Drain Passes. — Injunction.—Railroad.—-In a suit to enjoin a railroad company from interferring with the alteration of its bridge to allow the passage of a dredge along the stream in the construction of a ditch improvement, evidence of the character of the country, and the earth through which the drain was to be made is admissible to show that the method of making it by use of a dredging machine is the proper and efficient method.</p> <p>Injunction. — When Pond Not Required. — A bond is not required under the statute, in case of an injunction in the final decree, but only-where the injunction or restraining order precedes the final decree or judgment.</p> <p>Damages. — Drainage Assessment. — Deducting Damages Caused by Temporary Change in Railroad Bridge. — The cost of temporary changes in a railroad bridge to allow the construction of a ditch improvement, is properly considered in determining the reduction from the assessment of the company to be made for damages for such cost, if when made not in the interest of the improvement, but that of the traveling public, it is a proper charge by the company and does not arise from its continuing duty to so maintain its bridges as to admit public rights subsequently accruing.</p>

<p>Appellate Procedure. — Assignment of Errors. — Bill of Exceptions. — The denial of a motion below to have the record changed so asto show that a bill of exceptions was presented and filed within the time allowed therefor will not be considered by the appellate court, in the absence of an assignment of error.</p> <p>Same. — Bill of Exceptions. — Presenting to Judge. — Affidavits.—The Supreme Court will not consider affidavits for the purpose of ascertaining therefrom why a bill of exceptions was not presented to the trial judge within the time granted by the court below.</p>

<p>Public Improvement. — Alley.—Assessment.—Statute Construed.— A lot abutting upon an alley intersecting a street improved between the latter and the next parallel street is assessable under a statute providing that half the cost of street and alley intersections shall be apportioned upon the lots abutting upon the intersecting streets or alley to the first street parallel to the street or alley improved, although between it and the street improved the alley is intersected by an alley wide enough to make a street in some cities.</p> <p>Statute. — Unjust.—Constitutional Lcno. — A statute is not unconstitutional merely because it is unjust.</p>

<p>Repobteb’s Longhand Manuscbipt op Evidence. — Filing.—-Incorporating in Bill of Exceptions. — Appellate Procedure. — The requirement of section 1476, R. S. 1894, that it must appear that the longhand manuscript was filed in the clerk’s office before it was incorporated in the bill of exceptions, must be complied with to entitle the evidence to consideration.</p> <p>Bill op Exceptions. — Filing.—Record.—A bill of exceptions must be filed in the office of the clerk below before it can become a part of the record on appeal, under section 641, R. 'S. 1894.</p> <p>Same. — Certification by Cleric. — Appellate Procedure. — A purported bill of exceptions cannot be considered by the Supreme Court where it is not certified to be, or identified as, the bill of exceptions, by the clerk of the trial court.</p> <p>Same. — When not in Record. — Not Incorporated in Transcript.— Attached to Transcript. — A bill of exceptions cannot be considered by the Supreme Court, where it is not incorporated in the transcript, but is merely attached to the transcript after the clerk’s certificate and after the assignment of errors.</p> <p>Instructions to Jury. — Evidence not in Record. — Appellate Procedure. — An instruction will be considered as correct upon appeal in the absence of the evidence, unless it would be erroneous on any state of facts admissible under the issues.</p> <p>Same. — Burden of Proof. — An instruction that it devolves on plaintiff to prove all the material facts in the complaint by a preponderance of the evidence is proper.</p>

<p>Appellate Procedure. — -Want of Notice of Appeal, — Waiver.— Objection to the jurisdiction for want of notice of appeal, is waived by filing a brief discussing the merits, before action upon such objection (under a motion made on special appearance) is had.</p> <p>Ferries. — Petition for Establishment. — Essentials Of.- — A petition for the establishment of a ferry, under section 6597, R. S. 1894, allowing any person holding lands on either side of a river or creek which is the boundary between two counties, to apply to the county commissioners of the county in which such lands lie for the establishment of a ferry, must show the petitioner’s right of claim to land upon the stream in the county in which such petition is made.</p>

<p>Will. — Devise.—Fee Simple Absolute. — A widow takes a fee simple absolute of her husband’s lands under a will giving her the “residue of all my estate” after payment of debts, “subject to a . division” among his children at her death, “in accordance with their obedience to her as she shall deem proper.”</p>

<p>Mastee and Seevant. — Personal Injury of Servant. — Contributory Negligence. — Assumed Risk. — A laborer working near a fence against which a tall panel of fence projecting two feet or more above and below the permanent fence, has been set up nearly in an upright position, cannot recover against his employer for the fall of such panel upon him, caused by the wind, where he had as good an opportunity to know of the danger as the master could have had.</p> <p>Special Findings. — Conflict.—General Verdict. — Special findings must be treated as true and the general verdict as untrue in case of an irreconcilable conflict between them.</p>

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

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

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

<p>Contributory Negligence.— Freedom, From. — Care.— Sidewalk.— Personal Injury. — One who goes upon a sidewalk in the dhrk with knowledge of its unsafe condition must, to be free from contributory negligence, exercise care proportioned to the known danger and more than would be required had she been ignorant of the defect, or had it been daylight.</p> <p>Appellate Procedure. — Reversal of Judgment. — Personal Injury.— Sidewalk.— Contributory Negligence.— A verdict awarding the plaintiff damages for injuries received through the failure of a city to keep its sidewalks in a reasonably safe condition will be set aside on appeal, unless there is evidence showing that the plaintiff in passing over the sidewalk exercised reasonable care to avoid injury. u</p> <p>Same. — Rehearing.—Waiver.—Ground for rehearing will be regarded as waived or abandoned when not supported by any argument or authority in the brief.</p> <p>Same. — Rehearing.—Question First Raised on Motion For. — Bill of Exceptions. — Filing.—The point that the transcript fails to show that the bill of exceptions was filed in the office of the clerk of the court below cannot be first raised on motion for rehearing.</p>

<p>Action. — To Set Aside Fraudulent Conveyance. — By Creditors.— Creditors may maintain an action to set aside a fraudulent conveyance by their common debtor, and subject the property conveyed to the satisfaction of their several debts, although their claims are separate and distinct.</p> <p>Assignment of Errors. — Joint.—A joint assignment of error is not good as to any of the appellants if it is not good as to all.</p> <p>Bill of Exceptions. — Filing.—Record.—A bill of exceptions cannot be considered as a part of the record where it does not appear that it was ever filed in the clerk’s office.</p> <p>Appellate Procedure. — Judgment, Reversal. — Demurrer.—Misjoinder of Causes of Action. — A judgment will not be reversed, under section 844, R. S. 1894, for error in overruling a demurrer for misjoinder of causes of action.</p> <p>Judgment. — In Action to Set Aside Fraudulent Conveyance, etc., by Several Creditors. — A judgment in an action by several separate creditors to set aside 'alleged fraudulent conveyances by several defendants, subjecting the land so conveyed to “ payments to the judgment mentioned in the complaint, in the order of their priority,” is not invalid as subjecting to the payment of a judgment against one of the defendants the land of the other defendants.</p> <p>Pleading. — Complaint.—Fraudulent Conveyance. — Debtor and Creditor. — A complaint in an action to set aside as fraudulent separate conveyances by several defendants, brought by several separate creditors, is not demurrable for want of sufficient facts, where it alleges that each plaintiff has a judgment in which one of the defendants is a judgment defendant, although some of the plaintiffs have no judgments against the other defendants.</p> <p>Demurrer. — Joint and Several. — A demurrer by all of several defendants reciting that they demur jointly as well as separately and severally to the ‘ ‘first, second, and third paragraphs of the complaint, will be treated as a general demurrer by all the defendants, and is bad if the complaint is good against any of them.</p> <p>Same. — Misjoinder of Parties. — Misjoinder of parties, plaintiff or defendant, is not a cause of demurrer, under section 342, R. S. 1894.</p>

<p>Appellate Procedure. — Sever sal of Judgment. — Sufficiency of Evidence. — The Supreme Court cannot reverse a judgment and order a new trial on the ground that the fair or overwhelming preponderance of the evidence is against the verdict where there is evidence which is legally sufficient, standing alone, to establish the material allegations of the complaint.</p> <p>Railroad. — Personal Injury of Traveler at Crossing.-Contrib'Utory Negligence. — A finding that plaintiff in an action for personal injuries received in a collision with an’ engine at a highway crossing was free from contributory negligence is not supported by evidence legally sufficient, standing alone, so as to preclude the appellate court from disturbing it, where it rests entirely upon plaintiff’s evidence that the engine was running at from twenty-five to thirty miles an hour, and that, although his view was unobstructed and his hearing exceptionally good, he did not observe its approach upon stopping to look and listen.</p>

<p>Co-Tenancy. — Tenants in Common. — Remote Grantee of Such a Tenant. — -A remote grantee of the undivided interest of a tenant in common — is tenant in common with the owner of the remaining interest in the property.</p> <p>Same. — Tenants in Common. — Title.—Possession.—As a general rule one tenant in common cannot deny the validity of the common source of title, or assert a paramount title or interest in some third person as against his co-tenant, while he claims or remains in possession.</p> <p>Same. — Co-Tenant. Purchasing Outstanding Title. — Trust.—A purchase of an outstanding title by one of two co-tenants standing in such relation of trust and confidence as to preclude either from acting in hostility to the interests of the other, is not void, but the right of the other co-tenant is limited to sharing in the benefits of such purchase upon contribution of, or offer to contribute, his proportionate part of the purchase-money.</p> <p>Judgment. — Notice by Publication. — Defect or Falsity of Affidavit For. — Collateral Attack. — Defects or falsity of the affidavit upon which a notice by publication against non-residents is ordered, under section 320, R. S. 1894, does not render the judgment entered upon service by publication subject to collateral attack.</p>

<p>Harmless Error. — Sustaining Demurrer to Paragraph of Answer.— Appellate Procedure. — Sustaining a demurrer to a paragraph of an answer which set up as a defense to a complaint by a landlord against his tenant for unlawfully holding over, matters which, -under sections 7106-7107, R. S. 1894, might be shown under a general denial, is harmless error where such a denial has been set up in another paragraph, although the paragraphs demurred to state facts sufficient to constitute an answer.</p> <p>Same. — Sustaining Demurrer to Affirmative Paragraphs of Answer.— Same Facts Provable Under General Denial. — Subsequent Withdrawal of General Denial. — The sustaining of demurrers to paragraphs of an answer setting up matters in confession and avoidance of the matters alleged in a complaint for the recovery of possession of real estate is harmless error, although they state facts sufficient to constitute a defense, where by another paragraph a general denial is pleaded under which the matter set up in the other paragraphs may be shown; and the subsequent withdrawal of the general denial does not render the ruling harmful.</p>

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

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

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

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

<p>County Commissioners. — Jurisdiction.-—Location of Highway.— Macadamized Road. — A board of county commissioners has jurisdiction of a proceeding for the construction of a free macadamized road, where a petition is duly presented to it under the statute requiring them to exercise judicial powers in the location, establishment, and construction of such roads.</p> <p>Same. — Record of Proceedings. — Collateral Attack. — Macadamized Road. — The record of proceedings of county commissioners in constructing a free macadamized road, of which proceeding they had jurisdiction, cannot be collaterally impeached on the ground that they verbally directed the viewers and engineer not to report certain land liable to be assessed.</p> <p>Highway. — Land-owner.—Public Improvement Assessment. — Maeadmized Road. — Notice.—Appeal.—All persons owning land within two miles of a proposed highway are bound by the assessment of benefits by the board of county commissioners, from which no appeal was taken, where notice was given of finding a report of the apportioning committee, and the time and place and the hearing thereof by such commissioners, as required by section 6860, R. 8. 1894, although their lands were at first not reported as benefited by the viewers and engineer under the provision of section 6858.</p>

<p>Eailboad. — Contributory Negligence. — Highway and Railroad Crossing.- — One who fails to look in both directions before attempting to drive across a railroad track, and to stop and listen, when his view in one direction is obstructed, is guilty of such contributory negligence as will prevent a recovery for his death caused by a collision with a train coming from that direction.</p>

<p>Bill op Exceptions. — Reporter’s Longhand Manuscript of Evidence Containing Instructions and Exceptions thereto. — A bill of exceptions in -which is embodied the original longhand manuscript of the shorthand report of the evidence and its incidents, which incorporates also instructions given and refused and exceptions thereto, cannot properly be certified to the Supreme Court, and if so certified will be disregarded, because the Indiana statute requires that a bill containing anything more than the stenographer’s report of the evidence be copied by the clerk and the transcript thereof be certified by him.</p>

<p>Estoppel. — Appellate Procedure. — Corporation.—An appellant, who has treated an organization as a corporation by suing it, securing a receiver for it, and obtaining a judgment against it as such, is estopped on appeal to assert that it is not a corporation.</p> <p>Corporation. — Action by Creditor to Reach Assets. — Corporation in Charge of Receiver. — A creditor of a corporation cannot maintain a suit to reach assets for the payment of debts withheld from the corporation, where it affirmatively appears that a receiver is in charge of the corporation, administering its effects.</p> <p>Same. — Corporation Paying Debt Owing by Its Directors. — When not Fraudulent. — Insolvency.—It is not fraudulent for a corporation which is not insolvent, or contemplating dissolution, to pay, by assignment of notes and accounts, an indebtedness for which its directors have become responsible directly to such creditors.</p> <p>Same. — Officers, Liability to Receiver for Money Received for Payment of Debt. — Officers of a corporation, to whom money borrowed by it is turned over to pay to a third person in discharge of a debt upon which they are personally liable, who fails to make payment until after a receiver is appointed for the corporation, are accountable to the receiver for such moneys.</p>

<p>Mines and Mining. — Coal.—Weighing Before Screening. — When not Illegal. — Criminal Law. — Failure to weigh coal before it is screened is not a violation of the act of March 2, 1891, providing that all coal mined under contract for payment by quantity, shall be weighed before being screened, and full weight credited to the miner, provided nothing shall be so construed as to compel payment for impurities loaded with the coal, where the only way possible to avoid paying for the impurities is by screening before weighing, and even then some impurities will be paid for.</p> <p>Courts. — Constitutional Question, When Will Not Be Decided. — The constitutionality of a statute will not be determined by the courts when the cause in which the determination is sought may be decided and finally disposed of without such decision.</p>

<p>Corporation. — Insolvency.—Trust.—Creditors —An insolvent corporation does not hold its property in trust or subject to a lien in favor of creditors, in any other sense than does an individual debtor.</p> <p>Same. — Insolvency.—Executing Mortgage to Secure Money to Pay Indebtedness. — A mortgage executed by an insolvent corporation in compliance -with an agreement to secure an advance of money to discharge an indebtedness of the corporation, is valid as against its creditors, although the president and secretary were individually liable on the indebtedness so discharged, of which fact the mortgagee had knowledge.</p> <p>Note. — The right of an insolvent corporation to make preference among its creditors is the subject of an exhaustive note to Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co. (Tex.), 22 L. R. A. 802.</p>

<p>Eminent Domain. — Opening Alley. — Resolution of Common Council. — Damages.—Deferred Payment. — A provision of a resolution of a common council approving the final report of the city commissioners in a proceeding, under sections 3629-3657, R. S. 1894, for the opening of an alley and appropriating the land, that the owner’s damages shall not be paid until after the collection of assessments for benefits, does not warrant a dismissal of the proceedings, as the council is authorized to delay the opening until the benefits are 'collected, and otherwise the damages assessed are due as soon as the land is appropriated.</p> <p>Highway. — Opening Alley. — Resolution of City Council Accepting Report of City Commissioners. — Conclusiveness Of.— Appeal. — The adoption of a resolution by a common council of a city, accepting the report of the city commissioners in a proceeding for the opening of a street or alley, is conclusive as to public utility, under section 3643, R. S. 1894, limiting the review upon appeal to the regularity of the proceedings of the commissioners, and the questions’as to the amounts of benefits . or damages, and providing that such appeals shall not prevent the city from proceeding with the proposed appropriation.</p>

<p>Corporation. —Insolvent. —Preferring Creditors. —Directors. —Stockholders. — An insolvent corporation retaining possession and control of its property may prefer any of its creditors who are not stockholders or directors, even though the preferred claims are secured by the endorsement of the directors and part of the stockholders.</p>

<p>Bill op Exceptions. — Filing, Independent Record Entry Of.- — A purported bill of exceptions will not be considered by the Supreme Court, in the absence of the entry in the transcript, independent of the bill, indicating that it was filed with the clerk below, as required by section 641, R. S. 1894.</p> <p>Appellate Procedure. — Rehearing.-—Certiorari.—A rehearing will not be granted to enable the petitioner to secure an amendment of the transcript upon certiorari,</p>

<p>Master and Servant. — Personal Injury of Servant. — Complaint.— Knowledge. — A complaint for injuries to an employe from the giving way of an unsupported embankment, of the danger from which such employe was not notified, must aver that he had no knowledge of the danger as broadly as it avers knowledge on the part of the employer.</p> <p>Same.. — Personal Injury. — Averment as to Knowledge. — Insufficiency Of. — An averment in an action for injuries to an employe from the giving way of an unsupported embankment of dirt, clay, and stone, that he had no knowledge that said dirt, clay, and stone had been loosened and left without support, without any allegation that he did not know that it was in danger of falling, or that there was danger in passing close to the bank, is insufficient, especially where the allegation of negligence on the part of the employer is that he did not notify the employe that there was danger in passing close to such bank.</p> <p>Same. — Complaint.—Averment Too General. — Appellate Procedure. Defective description of the cause of personal injuries cannot be considered on appeal unless questioned by a motion to make the complaint more specific.</p> <p>Appellate Procedure. — Bill of Exceptions. — Filing.—Record.— Evidence. — The evidence is not in the record on appeal, where nothing appears in the record to show that the bill of exceptions was ever filed.</p>

<p>Evidence. — Application of Rentals on Railroad Lease. —Construction Contract. — Oral evidence is inadmissible to show that rentals on a railroad lease are to be applied upon a construction contract, so as to impose on the lessee a new burden in addition to the payment of the agreed rent when the road is completed and accepted, which is all that the lease calls for.</p> <p>Action. — Parties in Interest. — Beneficiaries.—Only beneficiaries and real parties in interest, and not those who merely anticipate benefit from the promise, are within the rule permitting an action on a contract by a third person for whose benefit it was made.</p> <p>(See note at end of opinion.)</p> <p>Same. — Assignment of Instrument as Collateral Security. — Suit on by Assignor. — An absolute assignment of a contract as collateral security prevents the assignor from maintaining an action upon it on his own account, even after notice to the assignee to institute the action.</p> <p>Contract. — To Build Railroad. — Separate Contracts Not Part of ■Same Transaction. — A person who contracts to build a railroad cannot claim that a lease made by the owner with another company, which is not on its face connected with its contract, forms a part of the same transaction so as to establish contract relations between him and the lessee.</p> <p>Same. — Construction of Railroad. — Payment.—Delivery of bonds in payment for the construction of a section of a railroad, under an agreement requiring full compensation for such portion as soon as it is completed, extinguishes the contract as to that part.</p> <p>Same.' — Obligation.—Breach.-—Without obligation, theré can be no actionable breach of contract.</p> <p>Note. — The right of a third party to sue upon a contract made for his benefit is extensively discussed in a note to Jefferson v. Asch (Minn.), 25 L. R. A. 257.</p>

<p>Pleading. — Complaint.—Foreclosure of Chattel Mortgage. — Record of Mortgage. — A complaint to foreclose a chattel mortgage set out therein, and purporting to have been executed by a mortgagor residing in a certain county, insufficiently shows a compliance with the statute requiring such mortgages to be recorded in the county where the mortgagor resides, by alleging that it was recorded in a certain other county ‘ ‘ where said property was and is now situated, and where defendant lived, or where the mortgagor mentioned by name then resided.”</p> <p>Same. — Complaint.—Foreclosure of Chattel Mortgage. — Recording Mortgage. — The allegation in a complaint to foreclose a chattel mortgage, that one of the defendants asserting a senior lien acquired it with knowledge of the mortgage, is of no force to take the case out of the rule requiring strict compliance with the statutory provisions as to recording.</p>

<p>Pleading. — Complaint.— Personal Injury.— Railroad Accident.— Death of Engineer.- — A complaint for the death of an engineer on a freight train — alleged to have been caused by a defective draw-bar and coupling appliances on one of the cars of another freight train, causing it to break apart and a section of the train to collide with his engine after both engines had been reversed upon discovering that the trains were approaching each other on the same track — is bad where it does not show that the engine attached to the colliding train was reversed in time to prevent a collision if the draw-bar and appliances had not been defective and the train had not broken in tyo.</p> <p>Same. — Complaint.—Contributory Negligence. — Railroad Employe.— A general averment in a complaint for the death of a railway employe,that his injuries were inflicted without fault or negligence on his part, sufficiently alleges the absence of contributory negligence to withstand a demurrer, where the facts alleged therein do not necessarily raise an inference of contributory fault.</p> <p>Same. — Complaint.—Railway Accident. — Collision of Trains. — Negligence. — A complaint alleging that defendant railway company while carelessly and negligently backing a train'failed to provide a clear track for the train of a deceased engineer, or to take any precaution against injuring him by other trains, and carelessly omitted to provide a flagman or other means of warning him of the .•approach of any train, and that he was killed by the backing of •.the train at a high rate of speed against his engine, states a cause •of action, although it does not recite all the facts and circumstances tending to show defendant’s negligence.</p> <p>Bailroad. — Inevitable Accident. — The breaking without fault or negligence of a draw-bar and coupling-pins holding freight cars together, which were in good condition and apparently sound, caused by the momentum of the freight train upon the engine being reversed upon discovering the approach of another train with which a section of the train breaking apart collided, killing the engineer, who was in the employ of another company and then engaged in taking freight cars home to defendant’s yards, is an inevitable accident for which defendant is not liable.</p> <p>Same. — Accident.—Collision.—Negligence.—Contributory Negligence. —One of two railway companies which daily takes each other’s freight cars home to its yards, without either company taking any other precaution than to preserve a sharp lookout to prevent collisions, is not liable for the death of an engineer of the other company by a collision while he was bringing its freight cars home, which would not have occurred if it had exercised due precaution to keep a proper lookout and notify him'of the approach of .its train, where his own neglect to observe similar precautions proximately contributed to the accident.</p>

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

<p>Pleading. — Answer.•—limitation of Action. — Practice.—Upon demurrer to an answer setting up the statute of limitation, the court cannot look beyond the facts alleged in the answer and admitted by the demurrer to the averments in the complaint, to ascertain when the cause of action accrued.</p> <p>Same. — Argumentative General Denial. — Fraudulent Conveyance.— Antenuptial Agreement. — Paragraphs of a separate answer of a married woman in a suit to set aside conveyances by her husband through a third person to himself and her as tenants by entireties, as fraudulent as to creditors, setting up an antenuptial agreement for the conveyance of such real estate to a trustee to be reconveyed after the marriage to the husband and wife, and the execution of such conveyance and re-conveyance without knowledge of his indebtedness on her part or intent to cheat, hinder or delay any creditors, are sufficient as argumentative general denials.</p> <p>Statute of Limitations. — Action to Set Aside Fraudulent Conveyance of Real Estate. — The six years statute of limitations governs a suit to set aside conveyances of real estate as fraudulent in respect to creditors.</p> <p>Same. — Not Interrupted by Appeal. — Fraudulent Conveyance. — The running of the statute of limitations against a cause of action to set aside a conveyance as fraudulent as to creditors, is not interrupted by an appeal in a suit against the debtor upon the original cause of action in favor of the creditor, as the two might have been joined, or the action to set aside the conveyance been commenced when judgment was recovered upon the original claim.</p> <p>Harmless Error. — Sustaining Demurrer to Argumentative General Denial. — General Denial Subsequently Withdrawn.- — Error in sustaining demurrer to paragraphs of a reply is harmless where they amount only to argumentative general denials, and a general denial is at the time interposed, although it is afterward withdrawn.</p>

<p>Receiver. — Appearance by Defendant. — Appointment at Chambers Without Notice. — Appearance by defendant in an action solely for the appointment of a receiver does not authorize an appointment without notice at chambers, under section 1244, R. S. 1894, providing that receivers shall not be appointed in term or vacation until the adverse party shall have appeared and had reasonable notice of the application, although the appointment might be made in open court.</p>

<p>Bill oe Exceptions. — Presenting Proper Bill Within Time Allowed. —A party who prepares and presents to the judge a proper bill of exceptions within the time allowed, cannot be deprived of any rights thereunder by the failure or refusal of the judge to sign the same, if he take due measures to secure such rights.</p> <p>Appellate Procedure. — Affidavit in Support of Motion for New ■ Trial. — The refusal to allow affidavits in support of or against a motion for a new trial to be presented and filed after argument and submission of the motion, cannot be reviewed on appeal in the absence of an abuse of the discretion of the trial court.</p> <p>New Trial. — Newly Discovered Evidence. — A new trial will not be given for new evidence cumulative or impeaching in its nature, or where it would not probably change the result.</p>

<p>Note. — The syllabus to the original opinion in this case was, by some inadvertence, omitted from the case as published in volume 142, p. 475, and hence its republication in this volume.</p> <p>Bailroad. — Duty to Properly Light Platform and Waiting-rooms in Night Time.- — It is the duty of railroad companies, within a reasonable time before the arrival and departure of its passenger trains, in the night time, to properly light its waiting-rooms and the platform connected therewith, and approaches thereto, so as to make them comfortable and safe for the use of passengers wishing to take passage on its trains.</p> <p>Same. — Same Platform and Depot Used by Tivo Companies. — Duty to Light. — Where two railroad companies use the same depot and platform, and a person enters upon the premises in the night time to take passage on a train of one of the companies, no duty to light is owing to such passenger from the other company.</p> <p>Same. — When One Becomes a Passenger.- — Depot Platform. — Failure to Bight. — Injury.—Snch person, on her arrival at the station, became entitled to all the rights, privileges, and protection of a passenger from the company on whose train she was waiting to take passage; and she had the right to retire from the depot to answer a call of nature, no closets being provided in the depot for such purpose, and, while so doing and returning again, such person was entitled to all the protection of a passenger, and the company’s duty to her as such continued; and the company is liable for damages sustained by her by unintentionally stepping off the platform and being precipitated to the ground below by reason of the darkness at such part of the platform.</p> <p>Same. — Duty to Light Platform. — It is not only the duty of the railroad company to light the platform between the depot and the track, but it is its duty to keep all parts of the platform lighted of which the passenger may reasonably make use in approaching or leaving the depot.</p> <p>Special Verdict. —Erroneous Finding. — Harmless Error. —If a special finding of a fact can be eliminated from a verdict, and the judgment necessarily be the same, such finding is harmless even if erroneous.</p> <p>Appellate Procedure. — Judgment Reversed as to One Joint Defendant ■and Affirmed as to Another. — Special Verdict. — A. judgment rendered upon a special verdict may be reversed as to one joint defendant and affirmed as to the other, under the statute authorizing a judgment against one alone of several joint defendants, although there is no apportionment of the damages assessed between the defendants.</p>

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

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

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