Volume 15 — Indiana Appellate Court Reports

<p>Pleading.— Counterclaim. — Set-off.—Action by Assignee of Note.— Private Corporation.- — In an action on a note given in payment of stock in a private corporation, by the assignee of the note, the note having been assigned as collateral security for a debt past due and unpaid, and the assignor having become insolvent, the maker of the note, who is a stockholder and officer of the assignor company, has the right to set up a counterclaim or set-off as a defense to the note, an obligation running from him to the assignor.</p> <p>Corporation. — Insolvency.—Stock and Notes Due for Shares Held in Trust. — If a company becomes insolvent and ceases operations, the fund represented by the stock and by the subscriptions of notes due from the shareholders for the same becomes a trust fund for the payment of debts due the creditors of the concern, and cannot be absorbed in whole or in part by the stockholders who are also officers of the corporation, in payment of claims, real or fictitious, alleged to be due them.</p> <p>Sam®. — Liability of Stockholders to Creditors of Corporation. — Capital Stock. — Capital stock being the stake or pledge upon which the corporation obtains credit, nothing short of actual payment would satisfy the claims against the stockholders, at least to the extent of the purchase-price of the stock, if not the full face value thereof.</p> <p>Same. — Insolvency.—Action by Creditor to Compel Assessment of Delinquent Subscribers. — If a debtor of an insolvent corporation has a right to its proportional part of the capital stock, it should bring an action in equity to compel an assessment upon the several delinquent subscribers to an amount necessary to pay all debts of the defunct company.</p>

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

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

<p>Evidence. — Motion to Strike Out. — Practice.—If evidence be admitted without objection, a subsequent motion to strike out comes too late.</p> <p>Same. — Evidence.—Estoppel.—Appellate Procedure. — A party cannot object to the testimony of non-expert witnessess as to the genuineness of a signature, upon the ground that they merely testified to having seen the person in question sign his name, without stating that they were acquainted with his handwriting or signature, where his witnesses have testified in a similar manner.</p> <p>Same. — Striking Out. — Non-Expert Witness. — Genuineness of Signature. — The testimony of a non-expert witness, as to the genuineness of a signature, will not be stricken out because he admits, on cross-examination, that his opinion was based, in part, upon comparisons made out of court, where his opinion was given after his testimony on direct examination that he had often seen the person in question sign his name, and the adverse party has waived any objection as to the sufficiency of such qualification.</p> <p>Same. — Decedent’s Estate. — Claim for Work and Labor. — In an action against a decedent’s estate, on a note alleged to have been executed by the decedent for work and labor done by the claimant while living with the decedent, evidence that claimant did but little if any work while he lived with the decedent is competent.</p> <p>New Trial. — Substantial Justice. — Practice.—If, in the trial court, it does not appear that substantial justice has been done, a new trial should be granted.</p> <p>Appellate Procedure.— Presumption. — Verdict.— After the trial court has approved the verdict of the jury, all presumptions are in its favor in the Appellate Court, and the verdict will not be disturbed unless it appears that substantial justice has not been done.</p>

<p>Appellate Procedure. — Brief.—Under rule 19 of Appellate Court, an appeal will be dismissed if a brief is not filed by appellant within sixty days from submission.</p> <p>Same. — A supersedeas brief properly referring to the record and stating concisely some of the propositions relied upon for reversal, with an argument supporting the same, will be sufficient to prevent a dismissal under this rule.</p>

<p>Superior Court. — General Term. — Jurisdiction of Person. — Appearance. — Where the record, on appeal from the general term of the Superior Court, recites that the “parties” were present “by counsel, and that the appellant [appellee below] objected and excepted to the ruling and judgment of the court,” such appearance, as shown by the record, gave the court jurisdiction of the person of the appellee, in the general term, notwithstanding the fact that no notice of appeal was served on appellee, and 140 days had elapsed from the time the appeal was prayed for until appellant, in the general term of the Superior Court, filed its assignment of errors therein.</p> <p>Appellate Procedure.— Presumption. — Record.— Error.— As the Appellate Court presumes the correctness and regularity of the judgment and proceedings of the court below, the party appealing therefrom is required to present a record which shows affirmatively that such proceedings and judgment are wrong, before the judgment will be disturbed.</p> <p>Pleading. — Complaint.—Life Insurance. — In an action on an insurance policy which provides for the payment of a specified amount in the event the decedent’s death results directly and immediately from “physical, bodily injury inflicted by external, violent, and accidental means,” the complaint is insufficient which does not allege that death resulted from injuries accidentally received.</p>

<p>Contract. — Statute of Frauds. — An agreement to apply a precedent debt in payment of goods exceeding gioO. 00 in value, purchased under an oral contract, will not take the transaction out of the operation of the statute of frauds, unless a receipt or credit is actually given.</p> <p>Same. — Statute of Frauds.- — Delivery.—An agreement by a seller of a carload of wheat, by an oral contract, to ship the same to such point as the purchasers should designate, and send the bill of lading to them, accompanied by a delivery of sacks in which to ship back to him flour agreed to be taken in part payment, is not such a delivery as will take the contract out of the statute of frauds.</p> <p>Practice. — Jury.—Directing Verdict. — If there be any evidence having any legal weight upon any controverted fact, the parties are entitled to go to the jury thereon.</p>

<p>Appellate Procedure. — Conflicting Evidence. — If the evidence is conflicting, the determination of the trial court will not be disturbed on appeal.</p> <p>Evidence. — Burden of Proof. — In an action for goods sold and delivered, the burden is on the plaintiff to prove an absolute sale.</p> <p>Contract. — Sale of Goods.- — Agency.—Recovery.—One who receives goods under an arrangement with a salesman that the goods are to be sold by him, the sendee, and paid for as sold, the goods, however, to remain the property of the sender until sold, is not liable to the sender for the unsold goods.</p> <p>Special Finding. — Failure to Find Certain Facts. — The absence of a finding upon certain facts in issue is equivalent to a finding against him who has the burden of proving them.</p> <p>Harmless Error. — Overruling Demurrer. — Answer.—Special Finding. — A party cannot be harmed by the overruling of a demurrer to an answer which the court by its special finding declares untrue.</p> <p>Same.— Overruling Demurrer. — Answer.— The overruling of a demurrer to a paragrairh of the answer is harmless to plaintiff where neither the judgment nor any conclusion of law is based thereon.</p>

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

<p>Interrogatories to Jury. — Answers To. — General Verdict. — While every reasonable presumption is indulged in favor of the general verdict, the same presumptions arise in favor of answers to interrogatories, which are a part of the verdict; and it is the duty of the court to reconcile the answers to interrogatories with the general verdict; but, if it cannot be done, the general verdict must give way to the answers to interrogatories.</p> <p>Same. — Answers Irreconcilable with General Verdict. — Personal Injury. — Master and Servant. — A finding by the jury, in answer to interrogatories, that plaintiff who sued for injuries sustained while in defendant’s employ, alleging that she was employed to perform specified work free from special danger, but was required to leave such work and assist in operating a dangerous machine with which she was unacquainted, had assisted in its operation a number of times previously, and that the danger from operating it was apparent, requires a verdict for defendant, notwithstanding a general verdict for plaintiff.</p>

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

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

<p>Sale. — Conditional Title. — Resale to Purchaser Without Notice.— Recovery of Purchase-price. — Where a conditional vendee of goods resold them to one not having notice of his conditional title; the value of the goods to be determined by invoice, and while they were being invoiced, the original vendor seized the goods, claiming them as his, thus stopping the invoice, but the second vendee replevied them from the first vendor and sold all the goods without taking an invoice, the second vendee having paid part of the purchase-price to his vendor, — a recovery of the balance of the purchase-price by the first vendor as assignee of the contract ■ of resale between the second vendor and the second vendee, can not be prevented by the non-performance of the condition to°invoice the goods.</p> <p>Practice. — Plea in Abatement. — Demurrer, Overruling. — Hearing Evidence and Fads Pleaded. — If the' facts upon which a plea in abatement are predicated were heard, and a special verdict rendered thereon by the jury, it is tantamount to overruling the demurrer to such plea, and trial, special verdict, and judgment thereon against the demurring party.</p> <p>Appellate Procedure. — Special Verdict. — Demurrer.—If the same questions are presented, both by demurrer to the pleadings and the special verdict, ruling upon demurrer is immaterial.</p>

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

<p>Descent. — Rights of Surviving Husband. — Statiite Consfrued. — The one-third share of a deceased wife’s real property taken by her husband under section 2642, R. S. 1894 (section 2485, R. S. 1881), giving him such share in lieu of the tenancy by curtesy allowed by the common law, is not, either in his hands or in the hands of his grantee, subject to the payment of general debts of the estate of the deceased wife.'</p>

<p>Appeal. — Dismissal of.— Necessary Parties. — Where one co-party appeals, he must make the other co-party appellant, or the appeal will be dismissed.</p>

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

<p>Pleading. — Complaint.—Bin.—Denial of Equal Accommodations, etc.— Statutory Penalty. — The averment in a complaint in an action under sections 3391-3393, R. S. 1894, to recover the statutory penalty for the denial to plaintiff of the full and equal privileges and enjoyment of the accommodations and facilities of an inn, to the effect that the same were denied plaintiff, is sufficiently specific and need not specify the particular accommodations and privileges denied him.</p> <p>Same. — Complaint.—Inn.—Statutory Penalty. — Proof.— In such an action, plaintiff need not aver or prove that the meals and lodging applied for were necessaries, although he avers that he was under twenty-one years of age at the time, where the complaint avers that the privileges were refused because he was a negro.</p> <p>Evidence.- — Agency.—Arrangement for Board and Lodging at Inn. —Football Teams. — Evidence that a football team had arranged to entertain another team at a hotel, and that the latter had accepted an invitation from the former to be entertained, is sufficient to establish authority in the manager of the former team to make arrangements with the proprietor of the hotel to entertain a member of the latter team, in connection with evidence that such member acquiesced in the arrangement between the two teams.</p> <p>Infant. — Contract.-—Agency.—Necessaries.—An infant can bind himself by an agent for necessaries, where he could have bound himself directly.</p> <p>Deposition. — Motion to Suppress. — When Made.- — A motion to suppress a deposition, for objections appearing on its face, must be made and a decision had before the beginning of the trial, and the overruling of such motion made after commencement of the trial is not error.</p> <p>Trial. — -Ruling on Admission of Evidence. — Rule as to Written Instructions. — Practice.—The rule requiring the court to give all the instructions in writing, when so requested, is not violated by announcement of the court’s understanding of the law involved, upon making a ruling on the admission of evidence.</p> <p>Instructions to Jury. — Signature of Judge. — Record.—Appellate Procedure. — The failure of the trial judge to sign the instructions, given on motion of appellant, is not available to the latter, where there is no claim that the instructions in the record are not identical with those given; as the requirement that the judge must sign the instructions is mandatory only for the purpose of getting the instructions into the record, and if they are improperly in the record, for want of signature, the appellant cannot complain.</p> <p>Same. — Signature of Judge. — Practice.—The failure of the trial judge to sign instructions given on motion of appellant, is not available error, where no motion was made below to have the in-structions signed.</p> <p>Damages . — Innkeeper.—Statutory Penalty. — Recovery in an action under sections 3291-3293, R. S. 1894, providing that any person denying the full and equal enjoyments of the accommodations of an inn to another on account of color or race shall forfeit a sum not to exceed §100.00 to persons aggrieved thereby, is not limited to damages actually proved.</p> <p>Recovery. — Innkeeper.— Statutory Penalty.^- Civil Rights. — It is not essential to the right of a recovery of the penalty prescribed by sections 3291-3293, R. S. 1894, for the denial of the full and equal enjoyment of the accommodations of an inn, on account of race'or color, that a person unlawfully denied entertainment through his agent should have personally applied for and been refused entertainment.</p> <p>Civil Rights. — Innkeeper.—Denial of Equal Accommodations by Hotel Clerk. — Diability of Proprietor. — Denial, on account of race or color, of entertainment at a hotel, by the clerk thereof, renders the proprietor hable for the penalty provided by sections 3291-3293, R. S. 1894, which provide a forfeiture to the person aggrieved, for the denial of the full and equal accommodations of an inn on account of race or color.</p> <p>Argument to Jury. — Misconduct of Advocate. — Interrogatories to Jury. — It is not such misconduct as amounts to reversible error, for counsel to caution the jury that his opponent has filed interrogatories for them to answer, and that they should be careful to have their answers conform to the verdict.</p> <p>Same. — Misconduct of Advocate. — Interrogatories to Jury, — Practice. —A statement by counsel that interrogatories were given to them by his opponent to “ catch them,” will not require a reversal where it does not appear that the trial court was requested to correct the alleged injury done, and that the appellant excepted to the refusal.</p>

<p>Pleading. — City Ordinance. — Contributory Negligence. — An averment, in a complaint, of the existence of an ordinance is all that is required in order that the same may become entitled to be admitted in evidence.</p> <p>Same. — Personal Injury.— Contributory Negligence.— If there be no general averment that the injury was received without any fault on part of plaintiff, but a statement of the facts be pleaded in such a way as to preclude the presumption of contributory fault on plaintiff’s part, this will be sufficient.</p> <p>Same. — Railroad.—In an action against a railway company for personal injuries caused by the alleged negligence of defendant in running its train over a street crossing at a rate of speed prohibited by a oity ordinance, an averment that without any fault or negligence on the part of plaintiff, defendant’s train, by reason of its negligence, came in close proximity to the horse driven by plaintiff, while plaintiff was attempting to cross the tracks, and frightened said horse, and caused him to upset the buggy and throw the plaintiff to the ground, does not sufficiently allege plaintiff’s freedom from contributory negligence.</p>

<p>Contract. — Consideration.—Harvesting Machine. — Pvrehase-priee. —The purchaser of a harvesting machine having refused to pay the purchase-price therefor, on account of the machine having failed to do good work, and, in order to induce the buyer to pay the purchase-price, the seller promised to make the machine do good work in the next harvest, or, upon failure to do so, to furnish him with another machine which would do good work, the payment of the purchase-price, under such conditions, was sufficient consideration for the second contract to make the machine- do good work or furnish one which would do good work.</p> <p>Same. — Breach of. — ■Damages.—Where the seller of a harvester, in order to induce the buyer to pay the purchase-price, promised to make the machine do good work, or upon failure so todo, to furnish him with another good machine, the, buyer, upon breach of such contract, is entitled to recover the value of the machine from the seller.</p> <p>Same.— Notice — Harvesting Machine. — Where one bought a harvester in June, 1891, and, upon testing it, found that it did not do good work, and refused to pay the purchase-price therefor, and the seller, in order to induce the buyer to pay the purchase-price, promised to make the machine do good work or furnish another good machine, and it -was stipulated, as a part of such agreement, that the buyer should give the seller at least two days’ notice before he wished to start the machine, but before the buyer was ready to start the machine the seller sent agents and experts to the buyer’s premises to correct and repair the defects in the machine, and, after making, as they claimed, the necessary repairs, informed the buyer that the machine was all right and would do good work, no reason existed for giving notice before the machine was tried, and the buyer having tested the machine at the beginning of the next harvest, and upon finding the machine still insufficient, notified the agent of the seller, he did all that was required of him.</p> <p>Special Verdict. — Amount of Recovery. — In an action on breach of contract to furnish plaintiff another harvester, on failure to make the first one do good work, a finding that the machine to which plaintiff was entitled and which defendant failed to furnish was worth §185, is a sufficient assessment of the amount of recovery.</p> <p>Appellate'Procedure. — Joint Assignment of Errors. — Under a joint assignment of errors that the court erred in refusing to give two instructions offered by appellant, the assignment must fail unless both instructions should have been given.</p> <p>Same. — Failure to Argue an Assigned Error. — Waiver—The failure to argue the sufficiency of an instruction refused and included in the assignment of errors, amounts to waiver of the error, if any, as to such instruction.</p>

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

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

<p>Pleading — Contributory Negligence, — The doctrine of contributory negligence does not apply to an action for damages for injuries sustained by being forcibly ejected from a passenger train.</p> <p>Railroad. — Passenger.—Ejection Of. — Failure to Produce Evidence of Payment of Fare. — Evidence.—Evidence that a conductor asked a passenger for his ticket about five minutes after he had paid his fare, and upon being informed of such payment, without making further inquiry told the passenger that he was lying, and forcibly ejected him from the train, is sufficient to justify the inference that the conductor acted in a spirit of malice, entitling the passenger to exemplary damages.</p> <p>Damages. —Elements of. — Railroad Passenger.— Damages for the wrongful ejection of a passenger from a train may include pain, suffering, loss of time and also feeling of shame and humiliation occasioned by such wrongful act.</p> <p>Instruction to Jury. — It is not error for the court to refuse to give a requested instruction, when same is not signed by counsel.</p>

<p>Decedent’s Estate.— Doctrine of Subrogation. — Where a widow advances money to the administrator of her husband’s estate, to be used by him in paying off just and valid claims against such estate, she is subrogated to the rights of the creditors whose claims were paid by her.</p> <p>Same. — Unrecorded Deed. — Delivery.—Where real estate was conveyed to decedent and his wife, jointly, and deed delivered to decedent by grantor, and said deed found among the private papers of decedent unrecorded, the delivery of the deed to decedent inured to the benefit of his wife, and, at his death, the entire title to the real estate vested in her.</p>

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

<p>Railroad and Highway Crossings. — Statutes Construed. — Section 5307, R. S. 1894, requires the whistle, upon a locomotive-engine, to be sounded upon approaching any highway crossing and the bell to be rung until the crossing is reached; section 5308, R. S. 1894, makes the company liable in damages to any person who shall be injured in person or property, by reason of the omission of such signals.</p> <p>Same. — Animals.—Contributory Negligence of Owner. — An owner of stock is not guilty of contributory negligence, when he has securely enclosed same, and they escape without his fault.</p>

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

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

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

<p>Railroad. — Contributory Negligence. — Personal Injury at Highway Crossing. — One who approaches a highway and railroad crossing, has no right to assume, from the fact that a railroad engine has just crossed the highway, that a train will not follow in the space of one minute; and if, acting on such assumption, she approaches the crossing without looking or listening, and is injured by a following train, when, if she had looked, she could have seen the approaching train at any point within 160 feet of the crossing, she is guilty of contributory negligence.</p>

<p>Special Verdict. — Railroad. — Negligence. —- Signals. — Value of Horse Killed at Crossing. — in an action against a railroad company for the value of a horse killed at a railroad and highway crossing, by reason of the company’s failure to give signals, which had escaped from plaintiff’s enclosure, without his fault, the special verdict, which fails to find that the death of the horse was the result of defendant’s negligent omission to give the proper signals, is not sufficient to support a recovery.</p>

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

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

<p>Township Trustee. — ■Misapplication of Township Funds. — Inability of Stireties. — If a school township is liable for the payment of orders issued by its trustee for borrowed money, and the trustee misappropriates such money, his sureties will be liable therefor.</p> <p>Same. — Power of Township Trustee to Borrow Money. — A township trustee has no express power to borrow money for school purposes, except upon compliance with sections 6006 and 6007, R. S. 1881 (sections 8081 and 8082, Burns’R. S. 1894); but if he does obtain it, and rightfully expends it for the benefit of the schools of his township, the township will be liable for its repayment.</p> <p>Appellate Procedure. — Assignment of Error. — An assignment of error must rest upon a ruling of the court, made against the party assigning it; several appellants cannot base error upon a ruling which affects but one of them.</p>

<p>Insurance. — Failure to Pay Premiums. — Forfeiture.—Mutual Benefit Association. — The provision in a certificate of life insurance, in a mutual benefit association, that monthly payments shall be due and payable to the secretary of the local section, without notice, on the first day of each and every month, and a failure to'make such payment on or before the tenth day of each month, shall cause, from and after such date, a forfeiture of such certificate, is not waived by the promise of the president of the section, as a personal favor to the agent of the insured, to notify him when anything should become due on the certificate, and his failure to keep such promise, where he did not assume to act for or in behalf of the insurer in making such promise.</p>

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

<p>Promissory Note. — Agency.—Liability of Agent. — A promissory note payable to a bank, signed “T., Trustee for Bank,” cannot be enforced by the bank where the facts show that the note was given by such trustee merely as the agent of the bank, for unsold stock of the bank held by him as trustee, the dividends of which were credited to the bank.</p>

<p>County Clerk. — Action to Recover Money Received by Color of Office. —Demand.—Redemption Money. — Tax Sale. — Money voluntarily paid to the clerk of a court, by one seeking to redeem land sold at tax sale, after the expiration of the time allowed by the court for the payment of the judgment, was received, not by virtue of his office, but by color of his office, and can not be recovered in an action on the bond of the clerk, in the absence of a showing that a demand was made therefor previous to bringing the action.</p> <p>Appellate Procedure. — Substituted Pleading. — Practice.— The Appellate Court has no power to grant leave to file a substituted pleading for one that was lost in the court below. Such relief must be sought in the trial court.</p>

<p>Pleading. — Complaint.—Contract.—The first paragraph of a complaint, alleging that defendants are indebted to plaintiff in the sum of §500 for services rendered at defendants’ special instance and request, will be held to be on a quantum meruit, it being followed by a second, paragraph for 8500 expressly agreed to be paid for the services, though the bill of particulars filed with both paragraphs recited: “Said services being rendered upon the promises and agreement of * * * to pay said * * * 8500 for his services.</p> <p>Trial. — Complaint.—Special Findings. — General Verdict. — Contract. —A general verdict for plaintiff will be treated as having been rendered upon the paragraph of complaint which seeks recovery on a quantum meruit, although the jury returned interrogatories in which they said they based their verdict on another paragraph of the complaint, which declared upon a special contract, where they further state that the amount found due was not by reason of a contract, but that the amount allowed was the reasonable value of plaintiff’s services.</p>

<p>Insurance. — Life.—Insurable Interest. — Unale and Nephew. — Thirteen-Year-Old Boy. — One does not have an insurable interest in the life of his thirteen-year-old nephew, simply because they lived together in the house of the boy’s mother, and the uncle kept his nephew.</p>

<p>Pleading. — Complaint.—Mechanic’s Lien. — A complaint to foreclose a mechanic’s lien, which avers that the defendants purchased of the plaintiffs “ certain building materials [naming them], ’ which were delivered at the “building for the purpose of being used in the erection and construction of the same, And were used in the construction of said building,” sufficiently shows that the materials were furnished for defendants’ buildings.</p> <p>Mechanic’s Lien. — Special Finding. — Judgment.—A finding of facts in an action to foreclose a material-man’s lien, as to material furnished under a general contract for a number of buildings, which shows the amount of material furnished for each building, and that payments had been made which should be applied in the proportion of §64.22 to each house, is sufficient to sustain a judgment in foreclosure for the amount due on each building.</p>

<p>Railroads. — Fires By.— Negligence.— Damages. — Where a railroad' company’s servants started a fire in a dry time, to bum the weeds. and grass along its right-of-way, and the fire spread to adjoining land, burning the soil and peat thereon, the company’s servants having knowledge of such facts and making no effort to prevent the spreading of the fire, the railway company was guilty of negligence.</p> <p>Same. — Fires By.- — Contributory Negligence. — If a fire be negligently started and negligently permitted to escape to the premises of another, the owner of such premises, if he have knowledge thereof, must exercise due care to prevent the injury or he will be deemed guilty of contributory negligence, A land-owner is not required to live on his premises and keep a vigilant outlook for negligence on the part of others. He may rely upon the presumption that others will conform to the legal duties resting upon them.</p> <p>Same.' — Fire By.- — Special Verdict. — A special verdict showing that lands burned were those of the plaintiff, and describing them as they are described in plaintiff’s complaint, is sufficient to show that they are the same lands the complaint described.</p>

<p>Pleading. — Complaint on Executor's Bond. — Exhibit.—A complaint on an executor’s bond, founded on section 365, R. S. 1894, is not good on demurrer, unless the original or a copy of such instrument is filed therewith, notwithstanding the averment in the complaint that such instrument is filed with the pleading.</p>

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

<p>From the Hancock Circuit Court</p>

<p>Corporation. — Subscription to Capital Stock. — In subscribing to the capital stock of an existing corporation, it is not necessary for the subscriber to sign and acknowledge the articles of association.</p> <p>Same. — Complaint.—Subscription to Capital Stock. — Matter of Defense. — In an action on a subscription to the capital stock of an existing corporation, conditioned to be valid or binding on the subscriber only in case a certain aggregate amount of stock was subscribed, where the complaint alleges performance of this condition, it need not aver that the subscriptions were made in good faith by solvent parties not under any disabilities; the fact that any of the subscriptions were not so made being a matter of defense, to be specially pleaded.</p> <p>Same. — Answer.— Subscription to Capital Stock. — Defense.— An allegation that the amount of stock required was never subscribed by solvent persons in good faith is not sufficient as a defense to a complaint alleging that it was subscribed, but is a mere conclusion where the answer does not allege that a single subscription was made by an insolvent person, or by one who did not subscribe in good faith.</p> <p>Same. — Allegation of Corporate Existence. — In an action on a subscription to the capital stock of an existing corporation, it is not necessary to allege facts showing a legal incorporation.</p> <p>Same. — Conditional Subscriptions. — A corporation may take subscriptions to its capital stock conditioned that same shall be valid and binding on the subscriber only in the event a certain aggregate amount is subscribed.</p> <p>Same. — Pleading.—Corporate Existence. — In an action by a corporation organized under the manufacturers and miner’s act, to recover a subscription to its capital stock, made in advance of its incorporation, the complaint must show that all the steps necessary to create a legal corporation under such act have been taken.</p> <p>Same.— False Representations of Organizers Of. ■— In an action by a corporation, on a subscription to its capital stock, the fact that the promoters of such corporation, prior to its incorporation, made false representations as to the purpose of the organization, constitutes no defense.</p> <p>Same. — Subscription to Capital Stock in Excess of Chartered Capital. —The mere fact that the promoters of a corporation secured subscribers to the capital stock thereof in excess of the amount prescribed in its charter, does not constitute a defense to an action by such corporation to recover on a preliminary subscription to such capital stock in the absence of any averment that such excess entered into the capital stock after the incorporation, or that the subscription sued on was a part of such excess.</p> <p>Same. — Articles of Association. — Mention of Purposes of Corporation Not Within Purview of Statute. — The mere fact that the articles of association mention some purposes not within the purview of the statute under which the corporation is organized, does not vitiate the organization.</p> <p>Pleading. — Demurrer to Answer. — It is not material error to sustain a demurrer to paragraph of answer if all defenses admissible under it can be made under remaining pleadings which are sustained.</p> <p>Appellate Procedure. — Assignment of Errors. — Sufficiency Of. — • An assignment of error which is not discussed by counsel will be considered as waived.</p> <p>Practice. — Plea in Abatement. — It is not error to sustain a demurrer to a plea in abatement, when the question sought to be raised by the plea was presented by an answer in bar.</p>

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

<p>Pleading. — Joint Answer. — Demurrer.—An answer pleaded jointly as to several parties must be good as to all, or a demurrer to it is properly sustained.</p> <p>Same. — Complaint.—Appeal Bond. — The execution of an appeal bond by the sureties is not sufficiently alleged by a complaint avering the execution of the bond by the principal defendant, and that the appeal was perfected.</p> <p>Appellate Procedure. — Assignment of Errors. — A joint assignment of errors must be good as to all of the parties joining therein, or it cannot be maintained. '</p> <p>Appeal Bond. — Statute Construed. — A judgment defendant is not liable on an appeal bond where such bond was not signed by such defendant, but was signed by sureties. Where a bond is complete in all its parts, valid and sufficient upon its face to accomplish the purpose for which it was.intended, there is nothing in it upon which the curative statute, section 1285, B. S. 1894 (section 1221, B. S. 1881), can operate.</p> <p>Same. — An appeal bond showing that it was executed for a term-time appeal is not enforcible when such appeal is abandoned by failure to file the transcript within the time required by law,</p> <p>Same.' — The defendant against whom is rendered a judgment appealed from,is not liable on an appeal bond which he did not execute, although liable upon the judgment appealed from.</p> <p>Collateral Attack. — Judgment.—Appeal Bond. — The liability of a defendant against whom judgment is rendered cannot be contested in this court in an action on the appeal bond.</p> <p>Summons. — Service.—Sufficiency Of. — Service on the president, secretary and treasurer of a council of a benefit society, when no other or higher officers thereof can be found in the county, is sufficient to give jurisdiction over the supreme lodge.</p>

<p>Contributory Negligence. — Special Verdict.— Inferential facts of due care and freedom from fault contained in a special verdict, cannot be given effect unless tbe 'primary facts upon which such inferential facts were founded are such that the conclusion announced may be reasonably drawn therefrom.</p>

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

<p>Appellate Procedure. — Waiver.—An assignment that the court erred'in overruling the demurrer to complaint is waived where no objection to the sufficiency of the facts alleged in the complaint is pointed out on appeal.</p> <p>Pleading. — Duplicity Of. — Where the facts pleaded are such that they may be construed as proceeding upon different theories in the statement of a cause of action, the construction placed upon them by the trial court will be followed by this court.</p> <p>Common Carrier. — Railroad Ticket.' — Contract.—The face of a railroad ticket is, as between the passenger and conductor^ conclusive evidence as to whether or not the passenger is entitled to ride; its terms constitute the contract between the passenger and the company.</p> <p>Same. — Railroad Ticket. — Ejection of Passenger. — Exemplary Damages. — One who applies for a ticket entitling him to ride, and pays the usual fare therefor, and accepts without reading it because of the poor light, an excursion ticket, the time limit of which has expired, given him by the ticket agent, on the latter telling him that it is all right and will be accepted by the conductor, may recover exemplary damages from the company for his ejection from the train on presenting such ticket.</p>

<p>Guaranty. — Notice.—Acceptance.—A guaranty in the words: “I hereby agree to hold myself responsible for, and agree to pay for, any goods and merchandise which may be purchased of you by A. L. Lane, Lebanon, Indiana, to the amount of §500,” constitutes an original undertaking, and it is unnecessary to aver or prove notice of acceptance thereof.</p> <p>Same. — Continuing Guaranty. — An agreement to be responsible for the purchase-price, and to pay for “any goods and merchandise which may be purchased,” to the amount of §500, not limited as to time, is a continuing one.</p>

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

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

<p>Witness.— Competency Of.— Opinion. — A witness may give an opinion as to the value of-services rendered in waiting upon and nursing a sick person, without first having shown to possess any special knowledge upon the subject of the value of such services.</p> <p>Evidence. — Competency Of. — Where decedent, prior to her death, lived with the family of her son-in-law, evidence that no charge was made for her support while she lived with her other children, is admissible in an action against her administrator, by such son-in-law, to recover for her support.</p>

<p>Landlord and Tenant.' — Natural Gas and Oil Lease. — Liability of Assignee Not in Possession. — The assignees of a natural gas and oil lease are bound by their acceptance of such lease, to make good the covenants contained in the lease to pay rent, and such obligations are not postponed until actual entry upon the land.</p> <p>Same. — Pleading.-—Assumption of Lease. — Statute of Frauds. — In a suit by a lessor of a natural gas lease, against an assignee of such lease, it is not necessary to plead an assumption thereof by such assignee, nor is such transaction affected by the statute of frauds.</p> <p>Same. — Surrender of Lease. — A condition in a lease that a surrender thereof by lessee should satisfy all damages between the parties thereto, applies to future rentals and not to rentals already accrued.</p> <p>Same. — One tenant in common of a lease cannot, without the consent of his co-tenants, bind their interests by a surrender of such lease.</p> <p>Same. — A provision in an oil ímd gas lease that a failure to complete an oil well on the leased premises, or make payment of a specified rental, shall render the lease null and void, is not effective in behalf of the lessee unless the lessor so elects.</p> <p>New Trial. — Joint Motion. — A joint motion for new trial by all the defendants, on the ground that the1 verdict is excessive, is properly denied unless the verdict was wrong as to all of the defendants.</p> <p>Same. — Instructions.—A motion for a new trial on the ground of error in giving several instructions is properly denied unless all of the instructions were erroneous.</p>

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

<p>New Trial. — Finding After Term. — Statute Construed. — Where a finding of the court is made, after the expiration of the term of court, in which such case was submitted, and such finding filed with the clerk during vacation, such finding will not become effective until the next succeeding term of court, and a motion for a new trial filed at said succeeding term of court was in time, under section 561, R. S. 1881 (section 570, R. S. 1894).</p> <p>Appellate Procedure. — Fvidence.—Review of on Appeal. — A finding by the court on conflicting evidence will not be disturbed on appeal.</p>

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

<p>Appellate Procedure. — Statute Construed. — An appeal is properly presented, in an action on a gravel road contractor’s bond, under section 645, E. S. 1894, authorizing appeals to be taken within one year, and is not governed by the special statute, sections 2609-2610, E. 8. 1894, relating to appeals in matters growing out of decedent’s estates.</p> <p>Gravel Eoad. — Contractor’s Bond. — Action—Liability of Sureties. —Subcontractors.—Statute Construed.- — -Debts of subcontractors are not within the scope of a gravel road contractor’s bond, under section 5592, E. S. 1894, guaranteeing the faithful performance of the work, and “thatthe contractor shall promptly pay all debts incurred by him.”</p>

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

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

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

<p>Appellate Procedure. — Omission of Evidence from Record. — When evidence material to the determination of the merits of the question in issue is omitted from the bill of exceptions, such omission will preclude the consideration of the question attempted to be presented in this court, unless it appear affirmatively that the omitted evidence is not necessary to the determination of such question.</p>

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

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

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

<p>Estoppel. — Married Woman. — Mortgage of Her Property by Her Husband. — A wife is not estopped to claim title to chattels as against one to whom her husband executed a mortgage thereon, for the reason that upon learning that her husband was attempting to mortgage the property she did not seek the mortgagee and assert her title to the property, where it is shown that she did not collude with her husband for the purpose of defrauding the mortgagee.</p>

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

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

<p>Master and Servant. — Injury to Employe. — Defective Machinery.— Inexperience of Employe. — It is the duty of an employe who is operating machinery with which he is unfamiliar, to inform his employer, and if he conceals his inexperience and undertakes to operate such machinery and is injured by reason of his inexperience, the employer is not answerable therefor.</p> <p>Same. — Condition of Machinery. — The servant has a right to assume that the master has done his duty, and that the machinery furnished him with which to work is in reasonably good condition and repair and that the natural risks attendant upon its use are not increased by defects.</p> <p>Same. — Conflict of General and Special Findings of Jury. — A general verdict in favor of a servant for injuries received by reason of the defective condition of machinery cannot stand where the answers to interrogatories negative a finding of the defect alleged in the complaint as the basis of the action, alfhough another and distinct defect is found, where no amendment of the complaint was made to conform to the proof.</p>

<p>Landlord and Tenant. — Construction, of Lease. — Under a lease providing for the payment of a specified rental each year in advance for every well from which gas is used off the premises, so long as gas is found on the premises, the lessee is not liable for the rental upon the failure of the well, or if it become impracticable to use th^ gas therefrom.</p>

<p>Patents — Definition.—A patent is a grant to the patentee, his heirs and assigns, for a stated period, of the exclusive right to make, use, and vend the invention or discovery throughout the United States.</p> <p>Same. — Transfer of Limited Interest In. — License.-—A transfer of a right to make and use a patented appliance upon a particular number of machines is merely a license and not a grant of an interest in the patent.</p> <p>Same. — Implied Contract. — A railroad company is not entitled to the use of an invention by its master mechanic, where none of the company’s material or labor entered into the discovery or perfection of the invention, and nothing belonging to the company was devoted to the construction of the appliances until after the invention had been put in definite form and patent either issued or applied for.</p> <p>Same. — Licensee.—Rights of Subsequent Purchaser. — A purchaser of a patent right takes subject to the rights of a licensee theretofore granted.</p> <p>Same. — Measure of Damages. — The measure of recovery by a patentee for the use of his appliance by a licensee is not the worth or value of the appliance to the licensee, but its value generally.</p> <p>Trial. — Special Interrogatory to Jury. — That an answer by jury to a special interrogatory is not sustained by the evidence, does not invalidate the general verdict where the matter to which the question relates does not affect the right of recovery of the party in whose favor the verdict is rendered.</p>

<p>Insurance. — Mutual Benefit Association.— Evidence.— A finding that the medical examiner-in-chief of a mutual benefit association disapproved an examination before a special examiner appointed for that purpose, of an applicant for a transfer from one class to another, and rejected the application because of applicant’s age, and for no other reason, is justified by a letter from such medical examiner-in-chief to an officer of applicant’s lodge, referring to the rejection, stating that the physical condition of a man 75 years of age is not such as to warrant acceptance.</p>

<p>Practice. — Motion to Withdraw Plea in Bar and File Plea in Abatement. — Error cannot be predicated on the ruling of the trial court, in overruling a motion to open the issues and allow defendants to withdraw their answers in bar and file a plea in abatement, where no abuse of discretion is shown.</p> <p>Decedent’s Estate. — Bight of Widow. — Ante-Nuptial Agreement.— Bequest. — The fact that a widow is mistaken as to her legal rights, being barred from asserting any interest in her husband’s estate, in case she survived him, by reason of ante-nuptial agreement, does not deprive her of a legacy bequeathed to her in her husband’s wall, notwithstanding she filed a claim against the estate, in addition to the legacy.</p> <p>Same. — Claim by Widow. — Costs.—The fact that the estate incurred costs in defending the claim of the widow, does not justify the administrator in disallowing the claim.</p>

<p>Pleading. — Complaint.—Railroad.—Death by Wrongful Act. — Willful Injury. — A complaint, in an action against a railroad company for willful injury to plaintiffs decedent, while passing through a • train of cars standing on the track, does not state a cause of action where it is not disclosed that defendant had actual knowledge that decedent was between the cars when the train was started and the injury done.</p> <p>Railroad. — Licensee.—A railroad company owes to a mere licensee no duty of protection against its negligence.</p>

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

<p>Attachment. — Restitution Bond. — Waiver. — Damages. — Defendants in an attachment, proceeding cannot maintain an action for damages upon the attachment bond, for not prosecuting the attachment to effect, when the complaint shows upon its face that they caused the attachment to he dissolved by filing a bond for the restitution of their property; the restitution of the goods being, in legal effect, a waiver of the right to assert that the attachment proceedings were wrongful and oppressive.</p> <p>Same. — Restitution Bond. — Effect Of. — The attachment defendants, by executing a bond for the l’estitution of the attached property, bound themselves to pay the personal judgment that might thereafter he rendered in the action; and there was no issue thereafter, in the attachment proceedings, to be determined, the attachment having been discharged upon the filing of such bond.</p>

<p>Practice, — Instructions to Jury Rendered Immaterial by Answers to Interrogatories. — Insurance.—A refusal to give an instruction concerning false answers and representations made by the assured in her application for insurance, is rendered harmless by a finding of the jury, in answer to interrogatories, that none of the answers or representations made by the assured were false.</p> <p>Insuranpe. — Proof of Death. — Waiver Of. — Where proofs of death ard received by the insurer, and no objections are made to the same at the time, but liability denied upon other grounds, such action will constitute a waiver of the requirement for strict proof.</p>

<p>Trial. — Conflict Between General and Special Verdict. — Special answers control the general verdict only when the antagonism between them is so great that it cannot be removed by any evidence admissible under the issues.</p> <p>Decedent’s Estate. — Claims Against. — Defenses.-—Under section 3334, R. S. 1881 (section 3479, R. S. 1894), providing that when a claim against an estate is transferred for trial, the executor or administrator need not plead any matter by way of answer, except a set-off or counterclaim, the defense of full or partial payment is available without special plea.</p>

<p>Sale. — Implied Warranty. — One who sells a chattel with knowledge-that it is to be used for a particular purpose, impliedly warrants the article to be reasonably fit for that purpose.</p> <p>Same. — Implied Warranty. — Breach.—Counterclaim.—On the breach of an implied warranty that a chattel is reasonably suitable for the purpose for which it is purchased, the buyer need not rescind the contract and return the property, but may, when sued for the purchase-price, set up his damages in a counterclaim.</p>

<p>Decedent’s Estates. — Claims Against. — Order of Payment. — When Administrator Liable for Payment Out of Order Provided by Statute. — Statute Construed.- — If an estate is solvent, and all the debts are paid, or there is ample assets to pay all of the debts, the administrator is not guilty of a breach of his trust simply because he does not pay such debts in the order designated by section 2378, R. S. 1881 (section 2541, R. S. 1894).</p>

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

<p>Former Adjudioation. — The true and just rule is that the plaintiff cannot be heard in a subsequent action to say that the issues properly tendered by his complaint in the former actions were not heard and determined; and the defendant having had his day in court cannot deny that he had the opportunity to meet and litigate all of the issues thus tendered by the complaint.</p> <p>Same. — Whenever the matters which a defendant can plead, either by way of answer or counterclaim, go to defeat the right of the plaintiff to recover, they must be taken advantage of or they will be deemed to have been adjudicated ; but if it is simply such matter as entitles the defendant to judgment against the plaintiff, which he may, by way of cross-action, have set-off against the plaintiff’s right, he can take advantage of the opportunity to plead it and have it determined or not, as he chooses.</p> <p>Same. — Judgment on Ante-nuptial Contract. — A judgment in an action on an ante-nuptial contract for farm products agreed to be delivered yearly, is not a bar to a subsequent action for products which had not matured and were not due under such contract at the time issue was joined in the former action. .</p>

<p>Municipal Corporation. — Personal Injuries. — Defective Sidewalk.— Contributory Negligence. — Knowledge on the part of a pedestrian of a defect in a sidewalk is not in general, conclusive evidence of negligence on his part in attempting to use it. He is not bound to forego the use of the walk, but must use care commensurate with the danger to be encountered.</p> <p>Same. — Personal Injuries. — Evidence.—Sufficiency Of.— Evidence that plaintiff was injured by falling over a loose board in a sidewalk, which was tipped up by another person stepping thereon, and that she knew of the condition of the walk, and was looking for holes in the walk, is insufficient to support a verdict in her favor.</p> <p>Same. — Notice of Danger. — One who knows that there are loose boards on a sidewalk is chargeable with knowledge that they are liable to tip when a person steps upon the ends thereof.</p> <p>Same. — Contributory Negligence.- — Burden of Proof. — In an action for personal injuries, the burden is upon the plaintiff to show that she was free from contributory negligence.</p>

<p>Promissory Note. — Law Merchant. — The essential requisites of a promissory note to be negotiable by the law merchant are: (1) a date; (2) an unconditional promise to pay money; (3) a fixed time for payment; (4) a definite amount to be paid; (5) a place where payment is to be made.</p> <p>Same. — Negotiability Of. — Cost of Collection. — The stipulation in a promissory note to pay “cost of collection,” does not destroy its negotiability.</p> <p>Same. — Negotiability Of. — Exchange.—The stipulation in a promissory note, providing for “exchange,” renders the sum to be paid indefinite and uncertain, hence the obligation is non-negotiable, under the law merchant.</p>

<p>Pleading. — Complaint.—Exhibit.—Construction.—Bond.—In an action on a contractor’s bond, the terms of the bond are controlling, and not the allegations of the complaint in relation thereto.</p> <p>Bond. — Of Subcontractor. — Extent of Sureties Liability. — The sureties on a bond given by a subcontractor, conditioned that he will complete the work contracted for, and that he will save the contractor harmless and indemnify him against loss arising out of or by reason of any lien created by reason of the work to be performed, or materials furnished by such subcontractor, are not bound to pay for work and material furnished to the subcontractor, the bond not providing that the subcontractor shall fully keep and perform his contract with the contractor.</p> <p>Same. — Liability of Sureties. — Sureties on a subcontractor’s bond are only bound to the extent that they guarantee the payment of debts.</p> <p>Same. — Scope Of. — A new condition cannot be added to a bond, in the absence of mistake, where it appears to be complete and perfect on its face.</p> <p>Suretyship. — Construction.—The contract of a surety will be strictly construed.</p>

<p>Municipal Corporation. — Change of Grade of Street. — Damages.— A city is liable to property owners where it has established the grade of a street, and the abutting property has been improved in conformity to such grade, and a new grade subsequently established to the injury of the property.</p> <p>Same. — Change of Grade in Street. — Damages.—The city is not liable in damages for a change from the natural grade of a street to one established by the city.</p> <p>Same. — Complaint —Damages.—Change of Grade ofStreet. — Where the ordinance set out in a complaint for damages for change in the grade of a street is a general one and fixes the grade at the crossings of the streets surrounding plaintiff’s property, taken in connection with the averment that the street was graded in accordance with such established grade, the complaint sufficiently shows a previously established grade.</p> <p>Same. — Ordinance.—Lost Récord. — The losing of the record of an ordinance does not render the ordinance invalid, where it does not appe'ar but that the original is in existence.</p>

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

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

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

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

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

<p>Malpractice. — Evidence.—In an action against a physician, to recover damages resulting from the alleged negligence of such physician in treating plaintiff’s injured thumb, it was not error for plaintiff’s witness, who was a physician, to examine the injured thumb in the presence of the jury, and to exhibit and describe its condition.</p> <p>Practice. — Cross-examination of Witnesses. — The trial court has a wide discretion as to the course and scope of the cross-examination of witnesses, and this court will not review that discretion, unless it is apparent that it has been abused.</p> <p>New Trial. — Newly-Discovered Evidence.- — A new trial should not be granted on account of newly discovered evidence, unless such evidence would probably produce a different result, or in some way influence the verdict.</p>

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

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

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

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

<p>Evidence. — Deed.— Consideration.— Where the consideration in a deed is expressed in general terms, as being in •‘satisfaction of any and'all claims of any and all kinds of the grantee against the grantors, or either of them,” parol evidence is admissible to show the nature of the consideration.</p>

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

<p>Banks and Banking. — Presumption of Genuineness of Checks' and Drafts. — Custom of Customers. — A banker who knows the custom of his customers in drawing checks and drafts, has a right to assume, nothing appearing to the contrary, that all checks and drafts drawn in that manner are genuine.</p> <p>Same. — Checks and Drafts. — Signature.—The banker must, at his peril, see that the signature is genuine, but he is not bound to ascertain and know that such customer personally filled out or wrote the check.</p> <p>Same. — Signed Check Stolen, Pilled Out and Cashed. — Negligence of Agent. — Liability of Principal. — A person who signs blank checks, and puts them in possession of his agent to be filled out by the agent and used as needed in the prosecution of the principal’s business, will be required to reimburse the bank for such a check, which was stolen, by reason of the agent’s negligence, and filled out and cashed by the person named as payee therein.</p> <p>Same. — Signed Check Stolen, Pilled Out and Cashed. — Estoppel.— The person thus signing the blank checks is estopped, as between herself and the bank which cashed the check, by reason of her negligence, from setting up that it was stolen and the name of the payee and amount inserted without her knowledge or consent.</p>

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

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

<p>Pleading. — Complaint.•—City Ordinance. — Penalty.— In an action for the penalty for the violation of a city ordinance, the complaint makes sufficient reference to the ordinance, when it covers both the offense and the penalty, and refers to the ordinance by number and date.</p> <p>Evidence. — City Ordinance. — Proof of Publication. — When Unnecessary. — In an action for the penalty for the violation of a city ordinance, proof of the publication of the ordinance need not be made, unless it be denied by affidavit.</p>