Volume 146 — Indiana Reports

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

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

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

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

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

<p>Harmless Error.— Jury-in Cause Triable by Court. — Where in an action on notes, and to set aside a conveyance as fraudulent, triable by the court, and the jury, called to determine certain questions of fact, were instructed to return a general verdict as to the notes, instead of being directed to find on the particular questions of fact, and the court disregarded the verdict of the jury, the error was harmless.</p> <p>Same. — Swearing of Jury in Cause Triable Only by Court. — Where in an action, triable only by the court, a jury is called to determine certain questions of fact, and are erroneously sworn to “well and truly try the cause now in hearing,” etc., and the court in rendering judgment disregards the verdict of the jury, and makes a finding for itself on every question, the error, if any, is harmless.</p>

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

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

<p>Pleading. — Answer Out of Record is not Brought in by Mere Reference Thereto in a Subsequent Pleading. — An original answer which has been taken out of the record, by the court sustaining a demurrer thereto, cannot be brought into an answer to a supplemental complaint by merely referring thereto and adopting the same as a part thereof, p. 57.</p> <p>Telegbaph Companies. — Collection of Taxes by Suit in Name of State. — Injunction.—An injunction restraining county auditors and county treasurers from collecting taxes assessed against a telegraph company, does not prevent an action to recover the same in the name of the State, under section 8488 Burns’ R. S. 1894. p. 58.</p> <p>Same. — ■ Taxation. — Penalty.—Constitutional Law. — Section 11, Act of March 6, 1893 (8488, Burns’ R. S. 1894), providing that if a telegraph company refuse to pay the taxes assessed against it, an action for the collection thereof may be maintained in the name of the State by the Attorney-General, and the judgment shall include a penalty of fifty per cent, of the amount of the taxes is constitutional, pp. 61-68.</p>

<p>Liquor License. — Remonstrance.—Right of Remonstrators to Withdraw Their Names.- — Under section 9, Acts 1895 (Acts 1895, p. 348), providing for the filing of a remonstrance against the granting of a liquor license, remonstrators have no right to withdraw their names from the remonstrance after the beginning of the three days’ period when the remonstrance is required to be on file, which begins on Friday next preceding the Monday on which a regular session of the board of commissioners begins.</p>

<p>Municipal Corporations. — Powers Delegated to Cities by Legislature. — Limitation of Powers. — Lights at Street and Railroad Crossings. — A. statute empowering a city to require all railroad companies to maintain lights similar to those maintained by such city at streets crossed by their tracks, will authorize the passage of an ordinance providing for electric lights, where the city maintains electric lights, but not for lights of the “arc pattern.” p. 73.</p> <p>Same. — Ordinance Requiring Railroad Companies to Maintain Lights at Streets Crossed by Its Tracies. — An ordinance requiring railroad companies to maintain a light at all places where its tracks cross a street “on the same schedule plan adopted and used by said city,” and imposing a fine for each night where there is a failure to provide the specified light, is bad for its failure to fix definitely the times of lighting, p. 7b-</p> <p>Same. — Public Safety. — Lights at Railroad and Street Crossings.— Statute Construed.— Section 5173, Burns’ R. S. 1894 (Acts 1893, p. 302) authorizing cities to provide by ordinance for the security and safety of citizens and others from the running of trains through cities by requiring railroad companies to keep and maintain lights at points where the tracks cross a street, on all nights that the common council may direct, does not authorize the passage of an ordinance requiring railroad companies to maintain a light at every street and railroad crossing whether or not the security and safety of the citizens require it. p. 7b.</p> <p>Same. — Exercise of Power Conferred by Legislature. — Where the power granted by the legislature to a city is general, and the manner of the exercise thereof left to the discretion of the city, an ordinance passed in pursuance thereof must be a reasonable exercise of the power granted, p. 69.</p> <p>Practice. — City Ordinance. — Overruling a demurrer to an answer setting up the invalidity of an ordinance is in effect holding the ordinance invalid, p. 69.</p>

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

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

<p>Pleading. — Assault and Battery. — Answer in Justification of Assault. — An answer to a complaint for an assault and battery in justification thereof which does not allege any fact necessarily implying that the occurrence alleged in the complaint, and that set up and justified in the answer, were one and the same, is bad.</p> <p>Same. — Practice.—Facts alleged in one paragraph of a pleading can not be called to the support of another paragraph.</p> <p>Practice. — Harmless Error. — Overruling a demurrer to a bad answer will not be presumed harmless unless the evidence as set out in the record shows that the cause was properly tried and determined upon its merits.</p>

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

<p>Statutes. — Construction of in Contested Election Cases. — Statutes providing for contesting elections should be liberally construed in order that the will of the people in the choice of public officers may not be defeated by any merely formal or technical objections. p. 10S.</p> <p>Notice. — Special Session of Commissioners’ Court. — Commencement of Term of New Member of Board After Notice. — The board of county commissioners is not dissolved by one member going out and another coming in, and if the existing members of the board have proper notice of a meeting of the board to hear and determine contested election cases, called by the auditor as provided by statute, no further notice is required to be served on new members' who become such before the meeting, p. 104-</p> <p>8amh. — Commissioners’ Court. — Special Session. — Contested Election. —Where the notice to the board of county commissioners to meet in special session to try a contested election case was not served, but the members appear at the time and place fixed to try the same, thus waiving service of notice, neither the contestor nor contestee can object to such want of service, p. 104-</p> <p>Same. — Commissioners’ Court. — Special Session. — Where a notice to the members of the board of commissioners to meet in special session states their names incorrectly or names the wrong persons, and the legal members thereof attend, the special session will be lawful, p. 104-</p> <p>Same. — Commissioners’ Court. — Special Session. — Contested Elections.- — Statute Construed. — When notice has been issued to the' board of commissioners, and the contestee, as required by section 4760, R. S. 1881 (6316, Burns’ R. S. 1894), and the board of commissioners fail to meet in such special session, and no other special session is called before the next regular session of the board, such contested election case, as provided in said notice for a special session, may be tried at the regular session of such board, p. 105.</p> <p>Commissioners’ Court. — Extension of Trial Beyond Regular Term. . — Statute Construed. — Section 1379, R. S. 1881 (1442, Burns’ R. S. 1894) which provides that, if at the expiration of any term of court the trial shall be progressing, the court may continue its sitting beyond such time, is applicable to the board of commissioners when sitting as a court in the trial of a cause.</p> <p>Same. — Rules Governing. — A board of county commissioners sitting as a court for the trial of a contested election case has the same power to make and correct its entries to conform to the facts, and is governed by the same rules in the exercise of such power as the circuit court, and the presumption will be indulged in favor of a nunc pro tunc entry by it, that it was made upon proper evidence, and that it states the facts as they occurred in the cause.</p>

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

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

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

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

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

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

<p>Executors and Administrators. — Sale of Real Estate Without Petition or Order of Court. — A domestic executor may sell real estate without a petition or order of court where the will directs the sale thereof and empowers the executor to make such sale. p. 133.</p> <p>Same. — Sale of Real Estate by Foreign Executor. — Failure to File Authenticated Copy of Appointment. — Jurisdiction of Subject-matter. —The failure of the circuit court to require a foreign executor to file an authenticated copy of his appointment, and of the will and foreign probate thereof, before granting an application to sell real estate, is an irregularity, but will not amount to such an error as to deprive the court of jurisdiction over the subject-matter, p. 135.</p> <p>Judgment. — Collateral Attack. — Pleading.—Complaint.—Where it is sought to collaterally impeach a judgment for want of notice to the parties against whom it is rendered, it is not sufficient to allege generally the want of such notice, but the complaint must allege what the record of the judgment sought to be impeached discloses on the subject, or the complaint will be bad. p. 135.</p> <p>Same .— Collateral Attack. — Pleading.— Complaint. — An allegation that none of the heirs or legatees of a testator were made parties to the petition of the executor to sell real estate, is not equivalent to an allegation that they were not parties to the proceedings as disclosed by the record, essential to a complaint collaterally impeaching the decree of sale upon the ground that they had no legal notice of the filing of the petition and the pendency of the action. p. 138.</p>

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

<p>Guardian and Ward — Action by Guardian for Injury to Ward— Statute Construed.— Under the provisions of section 266, R. S. 1881 (267, R. S. 1894) the guardian of an infant who has received a personal injury as the result of a wrongful act of another, may maintain an action against the wrongdoer for the recovery of such damages as are personally sustained by his ward. p. 152.</p> <p>Appeal and Error. — Special Finding. — ..When the special verdict of the j'ury or special finding of the court omits to find any fact essential to support the j'udgment below, the judgment cannot be sustained, p. 152.</p> <p>Negligence. — When a Question for the Jury and When for the Court. —Special Verdict. — When, under the facts disclosed by a special verdict, the question is presented either as to the negligence of the defendent or as to whether the plaintiff was without fault, and two inferences may reasonably be drawn as to either of such ultimate facts, the determination thereof is within the province of the jury, and their finding will be accepted by the court as controlling; but where the facts found are such that the court can adjudge as a matter of law that the injured party was or was not guilty of contributory negligence, the finding of such ultimate fact, whatever it may be, will be disregarded by the court, p. 15S.</p> <p>Same.— Special Verdict.— Damages.— In an action for personal injuries to plaintiff’s ward, the special verdict returned by the jury showed that such ward, a boy fifteen years of age, purchased an excursion ticket from Anderson, Indiana, to Benton Harbor, Michigan, and return; that he entered one of the coaches and seated himself, that when the train reached Alexandria, a station about 12 miles from Anderson, the coach in which he was seated was detached from the train and left upon the side-track, and the passengers in this coach were instructed to go into another coach; on entering the coach as directed he found all of the seats occupied and the aisle thereof filled with passengers; after standing in the car for some time he became sick, and believing that he would be compelled to vomit, and in order to avoid soiling the car and persons standing near him, he voluntarily left the car and went out on the steps leading to the ground, and while thus standing on the lower step, by a sudden jerk of the car, he was thrown to the ground and was injured; the jury also found that there was ample room in the car for him to ride and that if he had remained in the car he would not have been injured and that “ it was not a safe place to stand where he did even if the train ran smooth and did not jerk.” — Held, that the facts disclosed'by the special verdict show a clear and undoubted case of contributory negligence upon the part of ward. p. 154.</p>

<p>Justice of the Peace. — Jurisdiction.—Unless the record of a judgment rendered by a justice of the peace shows affirmatively that jurisdiction was acquired, the same is void. ’</p> <p>Partnership. — Judgment.— Confession Of.— A partner has no authority to confess judgment against his partners, and if judgment be entered upon such confession, it will be void as to them, but valid as to him.</p> <p>Same. — Where partners are sued and one partner files an affidavit confessing judgment, signed by the firm name, but which purports to be and is his affidavit, the judgment is void as to the partnership.</p> <p>Practice. — Waiver.—When a demurrer to the answer is sustained and an amended answer is filed, error is waived as to sustaining of demurrer.</p>

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

<p>Free Gravel Roads. — Proceedings for Additional Assessment.— County a Proper Party Plaintiff. — 'She county has such interests in the proceedings under sections 6860, et seq., Burns’ R. S. 1894, for the reassessment of lands benefited by and for the cost of constructing a free gravel road in excess of the estimated cost, as will entitle the board of county commissioners to be made a party plaintiff, although the county cannot ultimately be required to bear any part of the cost of such road. (</p> <p>Same. — Construction Of. — Reassessment by County Commissioners.— The board of commissioners of a county has the power to cause a reassessment against the lands benefited, to cover such additional cost of construction as may be found to exceed the original estimate.</p> <p>Same. — Additional Assessment of Benefits. — Defenses.—In proceedings for a reassessment to cover additional costs of construction of a free gravel road there is no question open except the validity and amount of the additional assessment.</p> <p>Same.— Construction Not in Compliance with Contract. — Remedy.— If a free gravel road when completed is not up to the standard contracted for, the remedy is upon the contractor’s bond.</p>

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

<p>Appeal. — Assignment of Errors. — Parties.—The assignment of errors is appellant’s complaint in the Supreme Court, and the only parties over whom it acquires jurisdiction are those named therein.</p> <p>Same. — When Dismissed. — An appeal will be dismissed if the assignment of errors does not contain the full names of all the parties.</p>

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

<p>Ejectment. — Improvements.—Tax Title. — An invalid tax deed constitutes a colorable title under the provisions of section 1098, Burns’ R. S. 1894, which will entitle the holder to recover in ejectment for improvements made by him upon the land.</p> <p>Appeal. — Objections not Raised Below. — The objection that an occupying claimant exercised his right to recover, for improvements, under a cross-complaint in the main action can not be first made on appeal.</p> <p>Limitation oe Action. — Taxes and Improvements Paid by One Occupying under Tax Deed.— The right of action of an occupying claimant to recover for taxes paid and improvements made upon land, accrues when he is adjudged not to be the rightful owner thereof, and a recovery of the premises awarded to the plaintiff.</p>

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

<p>Pleading. — Action on Note and Mortgage. — Sufficiency of Answer.— In an action on a note and to foreclose the mortgage security, an answer alleging that defendent has fully paid “all the notes and items charged and mentioned in the complaint''1 is sufficient to cover the obligations of both the note and the mortgage, p. 199.</p> <p>Fraud. — Attorney and Client. — Excessive Fees. — Where an attorney at law makes false statements to his client as to the value of land of which such client is an heir, and as to the value of attorney’s fees in asserting claim against an adverse claimant, and falsely states to such client that such adverse.claimant has employed all the attorneys in the town, such client being uneducated and uninformed as to the value of the land, and uninformed as to what steps had,been taken in the premises by the adverse claimant, such false statements on the part of the attorney constitute fraud, available as a defense to a note given to the attorney for excessive fees. p. S00.</p> <p>A.ppeal and Error. — When Rulings of the Trial Court are Correct for Reasons Other Than Counsel Presents. — The Supreme Court will not reverse the ruling of the trial court, if correct, even though counsel in support thereof should not give the correct reasons for the holding, p. 19S.</p> <p>Same. — Longhand Manuscript of Evidence, When Filed. — Bill of Exceptions. — The longhand manuscript of the evidence must be filed with the clerk before it is incorporated in the bill of exceptions. p. SOI.</p>

<p>From the Gass Gircuit Court.</p>

<p>Free Gravel Roads.— Objections to Petition. — When Presented.— Statutes Construed. — Objections to a petition for the construction of a free gravel road under sections 6879-6899, Burns’ R. S. 1894, that the same was not signed by a majority of the resident landowners whose lands were within two miles of the proposed improvement, to be available must be made prior to the report of the viewers.</p> <p>Appeal and Error,— Bill of Exceptions. — Transcript Must Show Filing Of. — A bill of exceptions is not properly in the record as provided by section 641, Burns’ R. S. 1894 (629, R. S. 1881), unless it appears from the transcript that it was filed in the cause.</p>

<p>Schools. — Relocation of School Building. — Power of Township Trustee. — Statute Construed. — Sections 5930, a, b and c, Burns’ R. S. 1894, providing that the change of site and removal of school building must be done by petition to county superintendent signed by township trustee and a majority of the patrons of the school where the building is located, takes away the discretion hitherto exercised by township trustees under section 4444, R. S. 1881, in the matter of the removal and relocation of the site of a public school building.</p> <p>Same. — Moving School Building. — Erection of New Building on New Site. — Statute Construed. — Sections 5920, a, b and c, Burns’ R. S. 1894, must be construed as applicable alike to cases where it is desired to build a new schoolhouse in a new location, as it is to the mere removal of a schoolhouse to a new location.</p>

<p>Appeal. — Informal Demurrer. — A judgment will not be reversed on appeal on account of the informality of a demurrer which was sustained to an insufficient answer to which it was addressed.</p> <p>Practice. — -Court May Revise Its Ruling During Term.. — The court may, at any time during the term in which the ruling is made, revise its ruling upon a demurrer, and thereby incidentally set aside a judgment entered upon such ruling.</p> <p>Wills. — Construction Of. — Life Estate.— Condition Subsequent.— Where a testator, after devising to his wife a life estate in certain lands and the remainder over to his son, conditioned that the son should provide a comfortable support for his mother as long as she should live, and that in the event he failed to do so the land at her death should be sold and the proceeds thereof divided equally among testator’s children, such provision is a condition subsequent and the title to such real estate vests in the son at the death of the testator, where the testator survived the wife and no alterations were made in the will.</p>

<p>Court Stenographer. — Section 1, Act of March 7, 1873 (Acts 1873, p. 194) relating to the employment of shorthand reporters by parties in trial court has not been repealed.</p> <p>Appeal and Error.— Bill of Exceptions. — Transcript Musi Show Filing Of. — The transcript must affirmatively show that the hill of exceptions was filed in the office of the clerk, and also the date of filing the same.</p> <p>Same. — Longhand Manuscript of Evidence. — When Filed. — The longhand manuscript of the evidence must be filed with the clerk before it is incorporated in the bill of exceptions.</p> <p>Practice. — Evidence.—Breach of Marriage Contract. — Where in suit for breach of marriage contract an- answer is filed calling in question the good character of the plaintiff before the time of the alleged contract, it is not error to admit in evidence on the trial such answer, together with depositions taken in support thereof, even though the answer had been withdrawn before the commencement of the trial.</p>

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

<p>City Ordinances. — Repeal of Ordinance by Implication. — Lights at Street and Railroad Crossings. — A municipal ordinance requiring railroad companies to maintain an electric light of a certain specified power at each point where the road crosses a public street, and imposing a fine of §50.00 for each violation thereof is impliedly repealed by a subsequent ordinance requiring all railroad companies to provide for the safety of citizens and others by maintaining electric lights at such points as are therein specified, and imposing a penalty of not less than §25.00, nor more than §100.00 for every train run over such crossing where a light is not kept and maintained.</p> <p>Same. — Repeal of Luring Progress of Prosecution. — Where, during the progress of a prosecution for the violation of a city ordinance such ordinance is repealed by implication, without reservation as to pending actions thereunder, the prosecution must fail.</p>

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

<p>License. — Revocation.—A license to erect an outside stairway to the upper story of a building on the land of another becomes irrevocable after the building has been erected, in reliance upon such license, at a large expense, without any other stairway.</p> <p>Same. — Easement.—An executed parol license may become an easement on the land of another and impose a servitude on one estate in favor of another.</p> <p>Contract. — Consideration.—W. and C. are the owners of adjoining unimproved lots. They enter into an agreement whereby W. in the construction of a building on his own lot is to construct a wall on the partition line, which wall is to used by both, when C. has erected an adjoining building. Until the erection of such adjoining building and a permanent stairway built, W. to have the right to maintain over the land of C. an outside stairway. Acting upon this agreement W. constructs the building including the outside stairway. Held, That the contract is supported by a valuable consideration.</p> <p>Notice. — The erection and maintenance for more than fifteen years of an outside stairway on the land of one person leading to a building on the land of another is sufficient notice of an agreement between the two for the construction of such stairway, to all persons claiming under the former.</p> <p>Practice. — Harmless Error. — Error in sustaining a demurrer to one paragraph of answer is harmless where all the evidence which could have been given thereunder is admissible under a general denial which is pleaded.</p> <p>Contract. — Not Rescinded Because Parties Did Not Foresee all Consequences. — An agreement between two persons supported by a sufficient consideration, by which one is allowed to maintain an outside stairway to his building over the land of the other, will not be rescinded on the ground that the land has greatly increased in value since the agreement was made.</p> <p>Appeal. — Longhand Manuscript. — How Made Part of Record. — The record must affirmatively show that the longhand manuscript of the evidence was filed in the clerk’s office before it was embodied in the bill of exceptions.</p>

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

<p>Master and Servant. — Defective Machinery. — Complaint.—In an action by an employe against his employer for personal injuries caused by defective machinery, a complaint alleging a knowledge both on the part of the employe and employer as to the defect, and a promise on the part of the employer to remedy the same, is not sufficient to withstand a demurrer unless it is further alleged that after the knowledge and promise on the part of the employer, a reasonable time had intervened before the accident for the employer to have remedied the defect.</p>

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

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

<p>Wills. — Construction.—Active Trust. — Testator devised real estate to his wife in trust, that in the event C. marries and has issue and the wife thought it advisable, she might convey the real estate to such “issue or children,” and in case no such conveyance was made the real estate was to go at the wife’s death to a certain township for school purposes. Held, That the trust created by the will was in the nature of an active one, that the interest of C.’s children was dependent upon the action of the wife in conveying same to them, and that by conveyance to one of C.’s children, the other children acquired no interest therein.</p>

<p>Wills. — Execution.—Attestation.—Statute Construed. — Under section 2746, Burns’ R. S. 1894, providing as to the form of execution and attestation of wills, it is not essential to the validity of a will that the attesting clause should recite all the forms required by the statute ; it is sufficient if the witnesses subscribe their 'names as such opposite the word “witnesses.”</p>

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

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

<p>Actions. — Joinder of Causes. — Right to Jury Trial. — Statute Construed. — Under section 409, R. S. 1881 (412 Burns’ R. S. 1894),which provides that “in case of the joinder of causes of action or defenses which prior to 1852 were of exclusive equitable jurisdiction with causes of action or defenses which prior to said date were designated as actions at law and that the former shall be triable by the court, and the latter by a jury, unless waived,” etc., there may properly be joined causes or defenses, one of which is triable by the court and the other by a jury.</p> <p>Same. — Practice.—Equitable Jurisdiction. — Where equity takes jurisdiction of the essential features of a cause it will determine the whole controversy although there may be incidental questions of . a legal nature.</p> <p>Same. — Equitable Defense. — Answers showing that all of the defendants except one were bankers and that between February, 1887, and January, 1891, they received from plaintiff and his agents, by way of deposits, large sums of money aggregating more than $300,-000.00, all of which they had paid out upon appellant’s checks and that the deposits consisted of 600 items and the payments upon checks consisted of 800 items, do not present an equitable defense to an action for money had and received on the ground that the transaction was complex and multifarious in character.</p> <p>Assumpsit. — Sufficiency of Complaint. — Demand.—In assumpsit for money had and received, where the complaint alleges the receipt of money by defendant for the use and benefit of plaintiff, it need not allege.a demand.</p> <p>Practice. — Correction of Ruling in the Formation of Issues. — -Where a ruling upon the formation of the issues is wrong it may be corrected by the court, but it must be done at such time and in such manner as not to prejudice the rights of the pleader.</p>

<p>Appeal and Error. — Bill of Exceptions. — Entry. —Where the court entry showing the filing of the bill of exceptions erroneously refers to the bill as appellant’s “longhand transcript of the evidence,” such unnecessary words may be rejected as surplusage.</p> <p>Bill oe Exceptions. — Filed in Open Court — The* filing of a bill of exceptions with the clerk in open court is equivalent to a filing in the clerk’s office.</p> <p>Master and Servant. — Negligence of Servant.^A servant nineteen years of age, active and intelligent, is guilty of negligence in stepping over a revolving shaft projecting fourteen inches above the floor, containing projecting oil cups and set screws, instead of passing out by either of two other ways which were generally used, and were comparatively safe, although he testified that he was unaware of the presence of the set screw'or oil cup, where the evidence showed that he had for nearly two-years worked in the mill, and for three weeks in and about this particular machinery, oiling the shaft at the point where he was hurt.</p> <p>Same.— Assumed Hazards. — Where a paper mill and machinery was constructed and maintained after approved plans, although the gearings, set screws, pulleys, belts, and other exposed parts of machinery might be rendered more safe - by being boxed, such extraordinary care cannot be required, and the usual and ordinary risks attendant upon work about such machinery are hazards of the service which are assumed by the employe.</p>

<p>Appeal. — Review.—Law of Case. — A decision of the Supreme Court constitutes the law of the case, so far as the principle involved is applicable, throughout all stages of the cause thereafter; this is true regardless of whether the question arose each time in the same manner.</p> <p>Negligence. — Defective Bridge. — A person having no knowledge of a defect in a bridge is not guilty of negligence in passing over the same, though he may have no legitimate business requiring him to do so.</p> <p>Trial. — Interrogatories to Jury. — Special Verdict.— In an action against a county for damages for personal injuries sustained by reason of a defective bridge, an interrogatory, ‘‘Was not plaintiff’s fall and injury occasioned solely by reason of the rotten, defective and doty condition of the timbers of said bridge, and the failure of the defendant to repair the same ?” does not submit a question of law to the jury, and is not in violation of the act of March 11, 1895, prescribing that each interrogatory to the jury be so framed as to require the finding of but one fact.</p> <p>.Practice. — Conclusion of Negligence. — Special Verdict. — The conclusion of negligence is not for the jury where a special verdict is returned.</p> <p>Trial. — Interrogatory to Jury. — When Improper. — In an action for damages for personal injuries the following interrogatory to the jury, ‘‘Was not said injury received without any fault or negligence of the defendant ?” is improper as involving both the law and the facts.</p> <p>Same. — Interrogatory to Jury.— Ultimate Conclusion of Fact.— Where, in an action against a county for damages for personal injuries resulting from a defective bridge, it was found that the injuries resulted from the decayed condition of the bridge, of which the defendant had knowledge and failed to repair, and that the plaintiff had no knowledge of the defects, that he went over the bridge slowly and carefully, and that he could not have seen the defects, an interrogatory to the jury calling for an ultimate conclusion of fact as to plaintiff’s contributory negligence is improper.</p> <p>Practice. — Special Verdict.— Improper Findings. — Improper findings in a special verdict do not defeat the verdict but should be disregarded.</p> <p>Same. — Interrogatories to Jury, When May Be Rejected by Court. — \ It is not error for the court to reject interrogatories propounded to the jury, where there are other interrogatories covering the same facts.</p> <p>Appeal. — Erroneous Instruction. — When Not Available Error. — An erroneous instruction is not available error when it is such an instruction as cannot be applied by the jury.</p>

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

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

<p>Payment. — Bank Check. — A check may be given and received, by agreement of the parties, as payment of a debt, and the debt for which it is so given is thereby extinguished, and if the check is not paid the right of action is on the check and not on the obligation or indebtedness for which it was given.</p> <p>Execution Sale.— Estoppel. — Where a sheriff received a check in payment for a deed issued under an execution sale of real estate, and thereby agreed to accept such check as so much cash, and further agreed to hold the check until next day in order that the purchaser, as a junior encumbrancer, might restrain payment to the execution creditor the amount of his said lien of such purchase-money, but the sheriff in violation of his said agreement transferred said check to plaintiff’s attorney, informing him of the agreement to hold the check, and the purchaser next day, upon learning of the violation of the agreement made the night before, ordered the bank on which the check was drawn not to pay same, and such check was never returned or tendered to said purchaser, plaintiff by his conduct in receiving the check from the sheriff with a knowledge of the agreement, ratified the acts of the sheriff and is not entitled to the remedy provided by section 773, Burns’ R. S. 1891 (760 R. S. 1881), for recovering judgment for the amount at which real estate is sold by the sheriff on execution.</p> <p>Tendee. — Money Deposited with Clerk of Court. — Where, pending a trial, defendant deposits certain money in court to be returned to him on condition plaintiff surrenders to the clerk of the court defendant’s check issued in payment of the debt in suit, the money and check to be held by the clerk subject to the order of the court, and such check is not surrendered, an order of court to return the money deposited is proper.</p>

<p>Wills. — Contest Of. — Right to Prosecute Action as Poor Person. — If the right to prosecute an action as a poor person under section 260, R. S. 1881 (261 Burns’ R. S. 1894), can be extended by construction to proceedings to contest a will after the probate thereof, under sections 2596, 2597, R. S. 1881 (2766, 2767, Burns’ R. S. 1894), the contestant would not, by reason thereof, be relieved from giving bond as required by sections 2596, 2597, (2766, 2767), supra.</p>

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

<p>Deeds. — Validity Of. — Delivery to Third Person for Benefit of Grantee. — Where, after the execution of a deed, the grantor handed the deed to his wife saying, “take it and keep it in a safe place until my death, then deliver it to B. F. Wells,” endorsed on the deed were the words “after my death this deed to be delivered by B. F. Wells,” and the wife kept the deed as directed, and at the death of grantor delivered same to B. F. Wells, who, after having it recorded, delivered it to grantee, such deed is not, invalid as an attempt by grantor to make a testamentary disposition of the land without the legal formalities of a will.</p> <p>Same. — Delivery.—"Where a grantor executes a deed, reserving no right to recall the deed or alter its provisions, and delivers it to a third person to hold until his death and then deliver same to grantee, the delivery thereof as directed constitutes an effectual legal delivery, and on the death of grantor the grantee succeeds to the title.</p> <p>Appeal and Error. — Evidence.—Objections to the admission of evidence not stated at the time it is objected to cannot be urged on appeal.</p>

<p>Appeal and Eeeoe. — Joint Assignment of Errors. — An assignment of errors as follows: “The appellants severally aver that there is error,” etc., setting out three alleged errors, is a joint assignment, the word “severally” applying to the specifications of error and not to the appellants.</p>

<p>Appeal. — Bill of Exceptions.— Record. — A bill of exceptions containing the evidence signed by the judge and properly entered in the order book in term time as one of the entries in the cause, is a part of the record.</p> <p>Resulting Tkust. — Conveyance to a Person Not Paying Consideration. — Statutes Construed. — Under the last clause of section 3398, Burns’ R. S. 1894 (2976, R. S. 1881), construed with section 3396, Burns’ R. S. 1894 (2974, R. S. 1881), when a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust results in favor of the latter, unless it shall be made to appear that by agreement, without any fraudulent intent, the person to whom the conveyance was made was to hold the land in trust for the one paying the purchase-money.</p>

<p>Trial. — Venire de Novo. — Special Verdict. — A special verdict is not subject to a motion for a venire de novo when it finds facts sufficient to enable the court to pronounce judgment thereon, although the jury fails to find upon all the issues.</p> <p>Same.— Special Verdict.— Statute Construed. — Under section 555, Burns’ R. S. 1894 (546 R. S. 1881), providing for a special verdict, as amended by the Act of March 11, 1895 (Acts of 1895, p. 248), when there is a demand for such a verdict upon “all the issues of the cause,” a general verdict is not contemplated, but leaves the court to pronounce its judgment upon the special verdict. Same. —Instructions.—Where the court of its own motion gave instructions numbered 1 to 6, and at the request of plaintiff another set of instructions numbered 1 to 10, an assignment of errors that “the court erred in giving instructions numbered 1 to 6 inclusive,” refers to those given on court’s own motion.</p> <p>Same. — Under section 555, Burns’ R. S. 1894, as amended by Act of March 11, 1895, the absence of the usual concluding formula, to-wit: “If, upon the facts found, the law is with the plaintiff, then we find for the plaintiff; if the law is with the defendant, then we find for the defendant,” will not vitiate a special verdict.</p>

<p>Husband and Wipe. — Wife's Separate Estate. — Widow Remarrying. —Right of Alienation. — Descent.—The provision of section 3641, Burns’ R. S. 1894 (2484, R. S. 1881), that if a widow shall marry a second or subsequent time, holding real estate by virtue of any previous marriage and there be children alive by such marriage, she cannot alienate such real estate during such second or subsequent marriage, does not preclude her from leasing the real estate for the period of her natural life.</p>

<p>Peomissoby Note. — Payment.—Defendant executed, as surety, a promissory note payable to a certain bank pursuant to an agreement, that in the event defendant assigned to the bank a certain judgment owned by him he should be relieved of all liability on the note. On the death of the maker of the note it was filed and proven as a claim against his estate and defendant in accordance with his agreement assigned the judgment held by him to the bank. A receiver thereafter appointed for the bank sold all accounts, notes and choses in action of the bank. Held, that the note had wholly ceased to be an asset of the bank before the appointment of a receiver.</p> <p>Agency. — President of Bank as Agent. — Where the president of a bank is held out to the public as fully empowered to attend to all the business of the bank, an adjustment by him of a claim in favor of the bank, by taking the assignment of a judgment, is valid.</p> <p>Evidence. — Executed Parol Agreement. — Contemporaneous Written Obligation. — An executed parol agreement may be proven even as against a written obligation contemporaneous with the parol agreement.</p>

<p>Municipal Corporations. — Powers Limited to Those Granted by the Legislature. — Municipal corporations possess such powers only as are granted by the legislature in express words and those necessarily or fairly implied or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation.</p> <p>Same. — Statutes Granting Powers to a Municipality Strictly Construed. — Any doubt or ambiguity in the terms used by the legislature in granting powers to a municipal corporation is resolved against the corporation.</p> <p>Same. — -Ordinances.—When Constitutional. — An ordinance expressly authorized by specific and definite legislative authority will be upheld unless it conflicts with the constitution; while an ordinance which the municipality seeks to uphold by virtue of its incidental powers, or under a general grant of authority, will be declared invalid, unless it be reasonable, fair and impartial.</p> <p>Same. — Town Ordinance Requiring Railroad to Maintain Crossing Gates. — Statutes Construed. — Sections 4404 and 4357, Burns’ R. S. 1894 (3333 and 3367, R. S. 1881), do not authorize an ordinance to compel a railroad company to keep, at its own expense, a watchman and erect and maintain a gate on each side of the track at each street crossing within the corporate limits of a town.</p>

<p>Criminal Law. — Affidavit and Information. — Not Necessary to File in Open Court.- — It is not necessary that an affidavit and information be filed in open court, a filing in term time in clerk’s office is sufficient.</p> <p>Same. — Affidavit and Information. — Order-Booh Entry of Filing.— An order-book entry of the filing of an affidavit is unnecessary. The mere statement of the clerk that the same was filed as shown by his file-mark is prima faeia sufficient to give jurisdiction.</p> <p>Same. — Affidavit and Information. — An information need not state that it was filed when the court was in session, and that the grand jury had been discharged for the term.</p> <p>Same. — Rape.—Sufficiency of Affidavit and Information. — An affidavit and information charging that defendant ‘ ‘did then and there unlawfully, feloniously and in a rude, insolent and angry manner touch, strike, pull, push, grasp and wound one A., a woman then and there being, with intent then and there and thereby unlawfully, feloniously, forcibly and against her will to ravish and carnally know her,” etc., contains the essential elements of an assault and battery with intent to commit a rape.</p>

<p>Street Railway. — Negligence of Driver. — Willful Injury. — Evidence that the driver of a street car slowed up the car at the signal of the plaintiff who was on the oar with a friend; that the friend safely alighted while the oar was in motion; that while plaintiff was on the platform waiting for the car to stop before getting off, the driver struck the mules with a whip, giving the car a sudden jerk, throwing plaintiff off, is not sufficient to support a charge of willful injury in the absence of proof that the driver knew at the time of striking the mules and starting the car that plaintiff had not alighted from the car. pp. 432-J35.</p> <p>Same. — Willful Injury of Passenger. — To entitle one to recover for an injury without showing his own freedom from contributory negligence, the injurious act or omission must have been purposely and intentionally committed, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation, p. 435.</p> <p>Same. — Instruction to Jury. — Accident.—An instruction to the jury that if plaintiff was injured as alleged and the injury was accidental, defendant would not be liable, is not erroneous where the whole instruction shows that the word “accidental” was used in the popular sense to signify something resulting undesignedly and without the fault of either party, p. 431.</p> <p>Negligence. — Instruction.—Question of Law. — In an action for personal injuries resulting from alleged negligence of defendant, an instruction that it is for the jury to determine whether the acts of the defendant, if established, “under all the circumstances amounted to negligence,” is not objectionable as authorizing the jury to decide a question of law, where the court by other instructions had defined what it takes to constitute negligence, p. 438.</p> <p>Same. — Street Railway. — Passenger.-—Contributory Negligence. — Instruction. — An instruction to the jury that a street car company, as a common carrier, is bound to the highest degree of care for the safety of passengers, and that such company is liable for injury to a passenger caused by the failure to exercise such care, provided such passenger was not guilty of contributory negligence, is not erroneous because it fails to add an unrequested charge that only ordinary care is required of the passenger, p. 440.</p> <p>Instructions to Jury. — When. Not Reviewable on Appeal. — When it is not shown by the record that all the instructions given by the trial court are in the transcript, the refusal of the court to give certain instructions offered is not reviewable on appeal, p. 441'</p> <p>Evidence. — Custom May be Shown as a Fact. — A custom or usage is a fact that may be stated by a witness in the first instance without stating the incidents or instances within his knowledge by which he became possessed of the knowledge of the custom, p. 443.</p> <p>Railroad. — Duty of Passenger. — It is the duty of one about to take passage on cars to ascertain for himself whether the rules of the carrier will permit a stop at a particular point where he may desire to get off. p. 443.</p> <p>Harmless Error. — Evidence.—It is harmless error to reject admissible evidence where it is clear that the admission of the evidence would not have changed the result, p. 444- -</p> <p>Same. — Rejected Evidence. —The rejection of proper evidence is harmless where other questions were afterwards put to the same witness in better form that elicited all the testimony that the rejected question could have elicited, p. 444.</p>

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

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

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

<p>Municipal Corporations. — Limitation of Indebtedness. — A contract by a óity for a fire alarm system, at a time when the city was indebted more than 2 per cent, on the assessed valuation of its taxable property, is void under the provisions of Art. 13 of the constitution limiting municipal indebtedness to 2 per cent, of the value of the taxable property, where such city had no money in the treasury to pay for such system either at the time the contract was made or when same was completed and accepted, although there were sufficient funds on hand to pay for it at the time fixed by contract for such payment.</p> <p>Same. — Municipal Indebtedness. — Where a municipal corporation contracts for a usual or necessary thing and agrees to pay for it annually or monthly, as furnished, the contract does not create an indebtedness for the aggregate sum of all the installments, as such indebtedness does not come into existence until it is earned.</p> <p>Same. — Municipal Indebtedness. — Current Expenses. —When the current revenues of a city are sufficient to pay the current expenses necessarily incurred to sustain corporate life, no indebtedness is incurred; but a debt for current expenses cannot be made beyond the constitutional limit.</p> <p>Same. — Municipal Indebtedness. — Payable Out of a Particular Fund. —Municipal obligations payable out of a particular fund, and for which the fund only and not the municipality is liable, are not within the inhibition of Art. 13 of the constitution limiting municipal indebtedness to 2 per cent, of the value of the taxable property.</p> <p>Statutory Construction. — Clause Taken From Statute of Other State. — Where a clause is taken from the constitution or statute of another state it will be deemed to have the meaning given it by the courts of that state.</p>

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

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

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

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

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

<p>Negligence.— Injury Received by Driver on Race Track. — Proximate Cause. — An association conducting a horse race is guilty of negligence in starting a race of ten horses on a track thirty-seven feet wide at a time when another horse which had entered the race was being driven on the track in an opposite direction and was at a point within sixty feet of such starting place, and such negligence was the proximate cause of a collision between the horses and vehicles in such race, and the injuries resulting therefrom received by one of the drivers thereof.</p> <p>Evidence. — Special Verdict. — Sufficiency Of. — All of the allegations of a complaint are not required to be found in a special verdict, but it is sufficient if the facts found constitute a cause of action within the allegations of the complaint.</p>

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

<p>Mechanic’s Lien. — Notice.—A notice of intention to hold a mechanic’s lien is not invalid for failure to specify when the work was done, or material furnished.</p> <p>Same.— Notice. — Contents Of.- — Under the statute providing for a mechanic’s lien, the notice thereof is sufficient when it states the amount due, to whom, from whom, and for what, and describes the premises; and such notice may be signed through the agency of an attorney.</p> <p>Practice. — Harmless Error. — Sustaining a demurrer to a paragraph of answer alleging facts which could have been proven, so far as the same were competent, under the general denial is harmless error.</p> <p>Same. — Admission of Evidence Under General Denial. — The defendant, under the general denial, is not confined to negative proof in denial of the facts stated in the complaint, but may introduce proof of facts, independent of those alleged in the complaint and inconsistent therewith.</p>

<p>Municipal Coepoeation.— JRules for Government of Common Council.— Ordinances.— Repeal.— Rules for the government of a city council, presented in writing and adopted at a regular meeting of such council, are in effect an ordinance and cannot be repealed on a mere verbal and general motion to that effect.</p>

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

<p>Adverse Possession. — Essential Elements Of. — Ordinarily there are five indispensable elements in adverse possession: 1. It must be hostile and under a claim of right. 3. It must be actual. 3. It must be open and notorious. 4. It must be exclusive. 5. It must be continuous.</p> <p>Same.— Possession of Part of Tract, Constructive Possession of Entire Tract. — Possession under color of title of any part of a tract of land is held constructively to include the whole of such lands.</p> <p>Same. — Exercise of Exclusive Dominion.— Possession under color of title cannot be more than the exercise of exclusive dominion over it. It is not necessary that the land be cleared or fenced, or that any building be put upon it.</p> <p>Same. — Unproductive Lands. — Actual Occupancy Not Necessary.— Adverse possession of unproductive lands is shown by the recording of deed under which the occupant claims; payment of taxes; cutting of all the valuable timber; going upon the land at intervals, claiming absolute ownership; the employment of agents in the neighborhood to look after it, and the building of a brush'fence around a portion cleared, without proof of actual occupancy.</p>

<p>Corporation. — May Deal with Its Property as an Individual When Not Restrained by Statute. — A private corporation, unless restrained by statute, may legitimately deal with its property in the same manner that an individual deals with his.</p> <p>Mortgage.— Preferences. — Where a mortgage or other security is given to secure an honest debt, and is in a bona fide manner accepted for that purpose, the fact that the giving and accepting of such security may result in defeating the claims of other creditors, affords no legal or equitable grounds for complaint on the part of the latter.</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.—Preferences.—Directors.—A preference made by an insolvent corporation to some of its directors, who voted in favor thereof, is not invalid where the vote of such directors was not necessary to the passage of the resolution authorizing the preference.</p>

<p>Special Verdict. — Failure to Find as to Material Fact in Issue.— Presumption. — When any fact material to the issue is not set forth . in a-special verdict, the presumption is that there was not evidence sufficient to establish such fact, and the same is treated as found against the party having the burden of proof as to such fact.</p> <p>Negligence. — Willfulness.—To constitute a willful injury the act which produced it must have been Intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to inflict the injury complained of.</p> <p>Same.— Contributory Negligence. — Railroad.—In an action against a railroad company for the alleged negligent killing of a section hand, freedom from contributory negligence is not sufficiently shown where there is no evidence as to what deceased was doing at the time he was struck by the train.</p> <p>Same. — Willful Killing. — Railroad.— A finding against a railroad company for a willful killing of a section hand, who was standing on the track, is not warranted in the absence of evidence showing what the deceased was doing at the time, even though the track was clear and deceased could have been seen from the cab of the engine for half a mile, and no signals were given of the approach of the train.</p>

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

<p>Ejectment. — Plaintiff Must Have Title at Commencement of Action. —In order to maintain an action for the possession of real estate the plaintiff must have title at the commencement of the action. A finding that plaintiff became the owner at a time prior to the commencement of the action is not sufficient.</p> <p>Special Finding. — Nothing Added by Inference. — Nothing can be added to a special finding of facts by inference or intendment.</p> <p>Same. — Law and Fact. —Cannot Aid Each Other. — The statement of a fact or facts in the conclusion of law cannot make the special finding good which fails to find such fact or facts.</p>

<p>Practice. — Answer.—Demurrer.— Harmless Error. — An erroneous ruling in sustaining an answer against a demurrer is harmless error if the judgment upon the merits is in favor of the plaintiff upon the issue tendered by such answer.</p> <p>Pleading. — Municipal Corporation.— Condemnation of Land for Street Purposes. — Answer.—Statute Construed. — Under section 3643 Burns’ R. S. 1894 (R. S. 1881, 3180), providing for appeals from proceedings for the condemnation by cities of lands for street purposes, an answer by appellant objecting to the amount of damages assessed as being too small, and demanding an increased amount of damages will be sufficient as against a demurrer.</p> <p>Appeal. — Longhand Manuscript of Evidence. — When Filed. — The longhand manuscript of the evidence must be filed with the clerk of the trial court before it is made part of the record.</p> <p>Same. — Where Judgment is in Excess of Demand. — Presumption on Appeal. — Where the amount of the judgment rendered is in excess of the demand-in the pleadings, the question ¿will be treated on appeal as if the pleading had been amended to conform to the proof.</p>

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

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

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

<p>Intoxicating Liquors. — License.—Bemontrance.—When Bemonstrator May Not Withdraw His Name. — Under section 9, Act of March 11, 1895, providing that, if three days before the regular session of the board of county commissioners a majority of the legal voters shall sign and file a remonstrance, the license shall not be granted, a withdrawal of one’s name cannot be made after the beginning of the third day before such meeting, and a motion signed by a number of remonstrators and filed with the board of commissioners after such time, stating that they had signed the remonstrance under “mistake and misapprehension” should be overruled.</p>

<p>Municipal Corporations. — Power of Common Council in Declaring What Shall Constitute a Nuisance. — A municipal corporation although authorized by its charter to declare what shall constitute a nuisance, may not declare that to be a nuisance which in fact is not.</p> <p>Same. — Cities.—Invalid Ordinance. — Partially Burned Building. Not a Nuisance. — Under section 23 of the act governing cities having more than ñfty thousand and less than one hundred thousand population as amended by section 4 of the Act of March 11,1895, authorizing such cities to declare what shall constitute a nuisance, an ordinance declaring a partially burnt building to be a nuisance irrespective of its actual condition or location, is invalid.</p>

<p>Wills. — Setting Aside a Will and Establishing Lost Will, ----- in Same Proceeding. — While the right to set aside a will and its probate is given by statute,- and the right to establish a lost or destroyed will is of equitable cognizance, yet both rights may be enforced in one proceeding, p. 623.</p> <p>Same. — Substitution of Unprobated Will for Probated Will. — Contest. — Limitations.—A proceeding to substitute one will, not probated, for another which has been probated, involves the contest of the latter will, and must be commenced by the filing of complaint or petition within three years after such latter will has been offered for probate, as provided by section'2766, Bums’ R. S. 1894.</p>

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

<p>Lis Pendens.— Failure to File. — Bona Fide Purchaser.— Where a decree to enforce a vendor’s lien has been reversed on appeal to the Supreine Court, and such reversal has been entered in the lower court, and no lis pendens notice having been filed, one purchasing the real estate against which the lien is sought to be enforced, takes it discharged of such lien.</p>

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

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

<p>Practice. — Special Appearance. — When Amounts to General Appearance. — When a motion is filed under a special appearance, to strike out a cross-complaint for want of process against the plaintiff, and for other reasons which are.such as must be taken advantage of by demurrer or answer, the filing of such motion constitutes a full appearance equivalent to the service of process.</p> <p>Same. — Motion to Strike Out Cross-Complaint for Want of Sufficient Facts. — It is error to strike out a, cross-complaint on the ground that it does not state facts sufficient to constitute a cause of action.</p> <p>Same. — Motion to Strike Out Cross-Complaint on the Ground That Complainants are not All Parties to the Action. — Where a motion is made to strike out a cross-complaint in which several defendants join, on the ground that some of them are not properly parties to the action, it is not error to refuse to strike out such a motion when such objection does not apply to all the parties. «</p> <p>Election oe Remedies. — Estoppel.—When a party joins in a complaint as plaintiff, and by leave of court dismisses his complaint in order to join in a cross-complaint as a defendant, it does not amount to a conclusive choice or election of remedies so as to estop him from becoming defendant and setting up matters involved in his cross-complaint.</p>

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

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

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

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

<p>Mortgages. — Redemption.—Merger.—Inchoate Interest of Wife.— Where a mortgagee obtains title to real estate through foreclosure of a mortgage executed by the husband, the wife not joining therein, and afterward under Acts of 1861 (Acts 1861, p. 79,2 Davis R. S. 220, 2 G. and H. 251), redeems from a sheriff’s sale under foreclosure of a senior mortgage on same real estate, in which such wife did join, by paying to the clerk of the court the full amount for that purpose, the prior mortgagee accepting the money in satisfaction thereof, the lien of the mortgage did not merge as to the inchoate dower interest of the wife, but the redemptioner thereby obtained a lien on the wife’s interest in said real estate, which could be divested only by redemption on the part of the owners or their privies against whom the judgment had been rendered, and upon the failure of such wife to redeem within the year of redemption, all interest in such real estate was lost to her forever.</p>

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