Volume 16 — Indiana Appellate Court Reports

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

<p>Sale. — Contract.—An agreement by which A was to furnish to B a music box with a dropslot attachment, B to remit each week the collections therefrom, making up the amount to a certain sum if below that, until he had remitted §250, at which time B was to own the box, with an option to A in case of default to sue for the balance due, or to refund one-half of the collections remitted and retake the box, is a contract of sale and purchase on which the first party can sue in case of a. default in payment for the unpaid balance of the contract price.</p> <p>Appeal. — Pleading.—Answer.—Sustaining a demurrer to a paragraph of answer is not reversible error, although the paragraph is good, where the same defense alleged therein is set up in another paragraph which is not held bad.</p> <p>Contract. — Execution of, Without Reading. — A party cannot be relieved from a written contract upon the ground that it does not represent his understanding of the agreement, where he signed it without having it read or without reading it himself, unless he was induced to sign it by some misrepresentation.</p>

<p>Master and Servant. — Safe Place to Work Must be Provided.— Latent Defects. — A servant has a right to assume, without looking for latent defects, that the master has done his duty in providing safe premises or working places for his servants, unless he has knowledge of the defects or can obtain such knowledge by the use of ordinary care. pp. IS, lj.</p> <p>Pleading. — Complaint.—Damages for Personal Injuries. — Contributory Negligence. — A general averment in a complaint in an action for personal injuries that plaintiff was free from contributory negligence is sufficient unless the facts pleaded in detail show that he was guilty of negligence notwithstanding such general averment. p. 13.</p> <p>Instructions. — Incomplete.—The proper remedy for an alleged omission in giving an instruction, correct so far as it goes, is not by exception but by a request for an instruction supplying the omission. p. U.</p> <p>Same. — Contributory Negligence. —On the issue of contributory negligence, in an action for personal injuries, it is error to instruct the jury that “contributory negligence on the part of the servant would not prevent him from recovering damages which he might otherwise be entitled to if by the exercise of ordinary care on the part of the master the consequences of such servant’s negligence might have been avoided,” when not limited to a case where the master’s negligence was committed after he was aware of servant’s danger, pp. lj-17.</p>

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

<p>Pleading. — Complaint.—Violation of City Ordinance. — Penalty.— In a suit to recover the penalty for a violation of a city ordinance, so much of the city ordinance as relates to the offense must be referred to in the complaint by number of the section or sections and the date of adoption.</p> <p>Same.- — Evidence.—City Ordinance. — In a suit to recover the penalty for a violation of a city ordinance, the city is not required to aver or prove publication of the ordinance, unless this fact be denied by affidavit.</p>

<p>Verdict. — Presumption.—Every presumption is in favor of the general verdict, p. 29.</p> <p>Same. — Interrogatories.—Where the evidence is not in the record, the answers to interrogatories will not be allowed to overthrow a general verdict, unless there is such antagonism upon the face of the record as is beyond any possibility of being removed by any evidence legitimately admissible under the issues, p. 29.</p> <p>Practice. — Theory.— Every case must proceed upon some theory; if a complaint is based upon one theory it can not be sustained upon some other, p. 30.</p> <p>Railroads.— Complaint.— Immaterial Allegations Need Not be Proved. — An allegation in a complaint for personal injuries against a irnion railroad company under whose directions the trains of several different companies are operated, that the train which struck and injured plaintiff was a train of a designated company, is immaterial and need not be proved, p. 30.</p> <p>Same. — Crossing.—Negligence.—Presumption.—A person who is injured at a railroad crossing is presumed to be negligent; but this presumption is overcome by a general verdict returned by the jury and approved by the trial court, p. 33.</p> <p>Same. — Grossing.—Contributory Negligence. — One is not, as a matter of law, guilty of contributory negligence in failing to wait until a train going in one direction has passed far enough to enable him to see whether a train on an adjoining track is approaching from the opposite direction, where a large number of trains pass the crossing daily and the safety gates are open, indicating that no train is approaching, pp. 33-41.</p> <p>Same . — Crossing.—Violation of City Ordinance. — Negligence.— Failure to operate safety gates at a railway crossing, as required by a city ordinance, is negligence, p. 37.</p> <p>Appeal. — Contributory Negligence. — Verdict.—The burden of showing on appeal that a general verdict for plaintiff is'wrong because plaintiff was guilty of contributory negligence, rests upon defendant. pp. 48-54.</p>

<p>Executors and Administrators. — Action to Compel Payment of Claim. — Change of Venue. — An action to compel an administrator to pay a claim allowed against the estate, the amount of which by his final report he attempts to retain in payment for services rendered to the claimant, is not a civil action within the meaning of section 416, Burns’ R. S. 1894, providing for a change of venue of certain civil actions.</p>

<p>Instructions. — Will be Considered as a Whole. — Where the instructions as a whole state the law correctly, it is not reversible error that some particular instruction or part of an instruction is incomplete or inaccurate.</p> <p>Negotiable Instruments. — Note Given for Patent Bight. — A note given in consideration of a conveyance of a patent right, which does not contain the words “given for a patent right,” or words of like import, is invalid in the hands of one who accepts it with full knowledge of the consideration for which it was given.</p> <p>Appeal and Error. — -Instruction.—A judgment will not be reversed for refusal of a correct instruction, unless the record affirmatively shows that such instruction was tendered to the court before the argument was commenced as provided by section 542, Burns’ R. S. 1894 1533, R. S. 1881).</p> <p>Same. — Instructions.—Presumption.—It will be presumed on appeal that instructions tendered and refused, were refused because they were not tendered in time, where the record does not affirmatively show that they were tendered before the argument was commenced.</p>

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

<p>Bribery. — Hiring Elector to Refrain from Voting. — Within the meaning of section 6325, Burns’ R. S. 1894 (1396, E. S.), providing that whoever hires any elector to vote or refrain from voting any ticket, or for any candidate, shall become liable to the person hired to vote or to refrain from, voting in the penalty of $300.00, it is not essential to a “hiring” that the elector shall have actually carried out his agreement to vote or refrain from voting.</p>

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

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

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

<p>Bills and Notes. — Alteration of Instrument. — The validity of a note having all the essentials of negotiability except the name of a bank at which it is payable is not destroyed by the insertion therein, by the legal holder, of the name of a bank in the blank space after the words “negotiable and payable at,” where the insertion was merely by way of a memorandum, and was made in lead pencil, and in a different handwriting from that in the body of the note, and no attempt was made or intended to be made to transfer it to an innocent purchaser, and the action is on the note in its original condition.</p>

<p>Pleading. — Action on Insurance Policy. — Complaint.—In an action on an insurance policy an allegation that the policy was in the possession of the company, and that its agent refused to deliver it up on demand, saying that he had sent it to the company, and that the company was not liable and would never pay the holder anything, is a sufficient excuse for not setting out a copy of the policy, and for not averring that proof of loss had been made as required by the terms of the policy.</p> <p>Appeal and Error. — Interrogatories to Jury. — New Trial.— The submission or refusal to submit interrogatories to a jury as a part of its special verdict, is a matter arising upon the trial, and unless the rulings of the trial court is made a cause for a new trial they cannot be assigned as error on appeal.</p>

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

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

<p>Pleading. — Answers.—Proof.—Where there are two paragraphs of answer, one in confession and the other in denial, the plaintiff cannot treat the answer in confession as dispensing with the proof of the facts put in issue by the paragraph in denial.</p> <p>Life Insurance. — Insurable Interest.— The legal liability of a mother to support her son unless he is unable to earn a livelihood, and she is able to provide for his support, created in behalf of the county or town by the laws of Illinois, does not give a son an insurable interest in the life of his mother, where the latter is seventy-six years old when the policy on her life is issued, and there is nothing to justify an inference that she had or would ever have sufficient ability to support him.</p> <p>Same. — Policy.—Incontestable Clause. — A provision on the back of a certificate of insurance that it shall be incontestable “after one year from the date as provided in the by-laws,” does not render it incontestable upon the death of the insured seven years after its date, where the by-laws provide that the certificate shall be incontestable in case of all deaths occurring “ within three years ” from the date of the certificate.</p>

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

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

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

<p>Contract. — Land Purchased to he Held in Trust for Another.— Parol Agreement. — Statute of Frauds. — B, a railroad company, made an oral agreement with W by which W purchased, to he held for B, a tract of real estate, for a consideration of §5,000. B advanced a payment of §2,500, and the real estate was conveyed by warranty deed to W, who executed a mortgage for balance of purchase money which B verbally agreed to pay. B failed to pay off said mortgage when due, and the same was foreclosed and a personal judgment rendered against W. The lands did not sell on foreclosure sale for enough to satisfy the judgment, and W was compelled to pay the deficiency remaining after sale of the lands. Held, in an action by W against B to recover the amount of the deficiency paid by him, that B’s promise to pay the remainder of the purchase price was not an attempt to create a trust or convey an interest in land by parol, nor was it a promise to pay the debt of another.</p>

<p>Intoxicating Liquors. — Damages Resulting from Illegal Sale to Minor. — Liability of Bondsmen. — The liability of the bondsmen of a saloonkeeper for damages resulting from illegal sales of liquor to a minor is not affected by the fact that the sales were made by the bartender and not by the saloonkeeper in person.</p> <p>Same. — Damages Resulting from Illegal Sales to Minor. — Statute Construed. — Under section 7288, Burns’ R. S. 1894, providing that saloonkeepers shall be liable upon their bonds “to any person who shall sustain any injury or damage to his person or property, or means of support, on account of the use of such liquors, so sold,” the loss of services of a minor son who contributed by his earnings to the support of his father’s family is a damage within the meaning of the statute, although the earnings and income of the father is sufficient to keep the family from .becoming dependent.</p>

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

<p>Pleading.— Action Against a Town. — Complaint.— A complaint against a town alleging that pursuant to a contract the plaintiff furnished such town with electric lights for which said town owed plaintiff a certain sum which was due and unpaid, is sufficient to withstand a demurrer without alleging that the amount due under the contract had been allowed by the town board; that there was funds in the hands of the town treasurer with which to pay the claim; or, that said town could have paid said indebtedness at any time prior to the commencement of the action.</p> <p>Appeal. — Joint Assignment of Error. — A specification of error that “the court erred in sustaining the demurrer of the appellee to the third, fourth, fifth, sixth and eighth paragraphs of appellant’s answer,” is a joint assignment and must fail if any one of the paragraphs is bad.</p> <p>Same. — Failure to Discuss Error. — Waiver.—An assignment of error that is not discussed will be deemed to have been waived.</p>

<p>Bastardy. — Evidence.—Engagement to Marry.— Evidence of an engagement to marry between the accused and the relatrix in a bastardy proceeding, is admissible to show the relation upon which they stood to each other, p. 155.</p> <p>Same. — Evidence.— Evidence of the time and frequency of acts of sexual intercourse occurring near the time of conception, between the accused and relatrix in a bastardy proceeding, is admissible where the accused has admitted having sexual intercourse within a short time thereafter, but denies the particular act resulting in conception, p. 155.</p> <p>Same. — Evidence.— Cross-Examination of Defendant. — Letters.—It is not error to permit the defendant in a bastardy proceeding to be asked on cross-examination if he wrote certain extracts from letters which were read by counsel for relatrix, such extracts containing statements contradictory to his testimony in chief, and not being garbled or wrested from their proper meaning, the entire letters having been subsequently offered and read in evidence, p. 156.</p> <p>Witness. — Cross-Examination, Scope Of. — When on direct examination a general subject is opened up, the cross-examination is not confined to matters particularly brought by the original examination, but may extend to any and all phases of that subject, p. 158.</p> <p>Same. — Impeachment.—A witness who had lived for many years in a neighborhood from which he had moved four months before giving his testimony, may be impeached by showing his reputation in such neighborhood, pp. 158, 159.</p> <p>Appeal.' — Bill of Exceptions. —Record.—When time is given beyond the term to file a bill of exceptions, this fact must appear from the record by order-book entry, and not by statement in the bill of exceptions, p. 159.</p>

<p>Insurance.— Action on Policy.— Complaint. — A complaint in an action on an insurance policy is not bad for a failure to directly aver the consideration and time of expiration of the policy, where the policy itself is made a proper exhibit, p. 161.</p> <p>Same. — Proof of Loss. — Waiver.—A denial by an insurance company of all liability on an insurance policy, operates as a waiver of the requirement for proof of loss. p. 161.</p> <p>Same. — Construction of Policy. — Where an insurance policy is so drawn as to be fairly susceptible of two different constructions, that construction will be adopted which is most favorable to the insured, p. 162.</p> <p>Same. — Construction of Policy. — A policy of insurance covering a certain specified building, a boiler and engine “ while contained in above described building,” and certain machinery, tools, and patterns, covers the patterns insured even though they were not in the building at the time they were burned, p. 162.</p> <p>Same. — Parol Evidence.— In an action on a fire insurance policy, parol evidence is admissible to identify the property covered, p. 163.</p> <p>Appeal and Error. — Evidence.—Objections to the admission of evidence, not stated at the time it was objected to, cannot be urged on appeal, p. 163.</p> <p>Insurance. — Evidence.—In an action on an insurance policy, where a greater loss is proved than was at first claimed, the insured may explain the discrepency by showing that his first claim was made through a misunderstanding as to the construction of the policy. p. 164.</p>

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

<p>Husband and Wife. — Husband’s Inability for Necessaries for Wife. — A husband who has abandoned his wife is liable for necessaries furnished the wife after abandonment, when it is shown that her own means are inadequate for her support.</p>

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

<p>Trial. — Burden of Proof. — Right to Open and Close. — Where no issue is formed on the complaint, and the only issue is upon a counterclaim filed by the defendant, the defendant has the burden of proof, and has the right to open and close.</p>

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

<p>Insurance. — Construction of Policy. — Payment of Premium. — A provision in an insurance policy that where a note is given for the premium and the same is not paid within thirty days after it becomes due the policy shall be void until the note is paid, is not applicable where no note is given and the insured is given a reasonable time in which to pay the premium, p. 208.</p> <p>Pleading. — Action Against a Foreign Insurance Company. — Jurisdiction. — The question of jurisdiction of the court in an action on a policy of insurance issued by a foreign insurance company, brought in the county in which the company had an agent, other than the county in which the plaintiff and the agent issuing the policy resided, can only be raised by a special plea alleging such facts as are necessary to raise that issue, pp. 210, 211.</p> <p>Pleading. — Action on Insurance Policy. — Complaint.—In an action on an insurance policy a complaint alleging that the policy was executed and delivered to plaintiff in consideration of a specified amount as a premium, is sufficient without alleging a payment or an agreement to pay anything, as it is immaterial whether the premium was paid in cash or whether a credit was given for the same. p. 211.</p> <p>Insurance. — Failure to Pay Premium at Time Fixed. — The failure of assured to pay the premium on an insurance policy within a definite and fixed time does not work a forfeiture of the policy in the absence of any stipulation to that effect in the policy, p. 212.</p>

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

<p>Highways.— Vacation of.— Assessment of Damages. — Appeal.— Waiver. — The failure of the petitioners for the vacation of a highway to move the board of commissioners to set aside the report of reviewers assessing damages, and appoint a new set of reviewers, does not waive the objections to the report and preclude the right of appeal to the circuit court.</p> <p>Same. — Vacation of. — Abutting Landowner. — Remonstrance.—Statute Construed. — The owner of land abutting on a highway at the point of intersection by another highway that is sought to be 'vacated, is not an owner of land through which the highway sought to be vacated passes, within the meaning of section 6746, Bums’ R. S. 1894, giving right to remonstrate for damages.</p>

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

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

<p>Bill OS’ Exceptions. — Signature of Judge. — Mandamus.— Ninety days’ time was given for appellant to file bill of exceptions. Two days before the expiration of said time appellant's counsel called to secure the signature of appellee, who as special judge had tried the cause, but appellee was absent from home at the time and did not return for several days thereafter. Counsel for appellant thereupon caused the clerk to indorse on the bill of exceptions that the same had that day been presented for the signature of the judge, and the counsel took it but failed to present it for the judge’s signature until nine months had elapsed, during all of which time the judge (appellee) was almost continuously at home. The judge refused to sign the bill. Held, in an action by appellant to mandate the judge that the judge properly refused to sign the bill of exceptions.</p>

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

<p>Railroad Company. — Damages by Fire. — Contributory Negligence. —Special Finding. — A judgment against a railroad company for damages for negligently causing a fire is not sustained by a special finding which fails to find facts showing that the damages resulted without contributory negligence on the part of plaintiff.</p>

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

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

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

<p>Railroads. — Passenger on Freight Train. — Contributory Negligence. —A passenger on a freight train who leaves her seat to get a drink of water for her child is not guilty of contributory negligence so as to preclude a recovery for damages caused by a negligent stopping of the train.</p> <p>Same. — Passenger on Freight Train. — Assumption of Bisk. — A passenger on a freight train does not assume the risks growing out of the negligent operation of such train.</p> <p>Same. — Ticket Purchased in One State, Tort Occurring in Another. —The fact that a passenger purchased his ticket in Illinois does not support the proposition that the company is not liable for a tort in Indiana.</p>

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

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

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

<p>Landlord and Tenant. — Construction of Lease. — A lease for one year with the agreement that if lessee should prove to be a satisfactory tenant and should do what was right the lessor would again rent the premises to him for another year, cannot be construed as a leasing of the premises for an additional year.</p> <p>Same. — Ejectment.— Equitable Lien for Improvement. — Under a lease for one year which stipulates that should the lessee prove satisfactory as a tenant and do what was right the lessor would rent him the premises for another year, and which stipulates further that lessee might build a house on the premises, for which lessor would pay lessee whenever his tenancy should cease, the lessee has an equitable lien upon the real estate for the value of a house built, and a court of equity will protect him in possession of the real estate until he is paid for the value of the improvement so made.</p>

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

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

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

<p>Intoxicating Liquors. — Violation of Law. — Sufficiency of Affidavit. —An affidavit charging a violation of section 4 of the Act of March 11, 1895, which requires that any room where intoxicating liquors are sold shall be situated upon the ground floor or basement of the building and fronting on the street or highway, alleging that defendant was the proprietor of the room where the liquors were sold and that such room did hot front on the street or highway, is t sufficient without directly averring that defendant or his agents sold liquors in such room.</p>

<p>Criminal Law. — Public Indecency.— Sufficiency of Affidavit. — Under section 3081, Burns’ R. S. 1894, providing that whoever being over fourteen years of age, uses or utters any obscene or licentious language or words in the presence of any female is guilty of public indecency, etc., if the language is not obscene or licentious per se it must be shown by extrinsic averments that it was used in an obscene or licentious sense and was so understood by the female.</p>

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

<p>Statutes. — Reenactment.—An amendatory statute which simply defines the same offense in substantially the same language as that used in the statute amended does not take away the right of prosecution under the amended statute for an offense committed before the act as amended became effective.</p> <p>Same. — Saving Clause. — The provisions of section 248, Burns’ R. S. 1894, that the repeal of a statute shall not have the effect to repeal or extinguish any penalty, forfeiture, or liability incurred thereunder, are by law imported into the subsequent repealing acts and obviate the necessity for individual saving clauses.</p> <p>Same. —Repealing Acts. —Statute Construed. —Penalty. —The provision of section 248, Burns’ R. S. 1894, that “the repeal of a statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide,” applies to penal statutes imposing punishment by imprisonment, and the word “penalty” is not restricted to a pecuniary liability.</p>

<p>Sales. — Breach of Contract. — Measure of Damages. — In an action by the seller against the purchaser of personal property for a breach of the contract, where the title to the property had never passed to the purchaser, the measure of damages is the difference between the price fixed by the contract and the market value of the property at the time and place of delivery.</p> <p>Same. — Pleading.—Complaint.—Breach of Contract.- — R entered into a contract with M by which R agreed to furnish M 500 cords of bark on or before November 1, 1898, the price to be governed by the ruling price in Cincinnati in the spring months of 1893, and such additional sum as it would require to deliver the bark to Columbus, Ind., over and above what it would cost to deliver the bark to Cincinnati. R prepared for market the 500 cords of bark, and at the time for delivery notified M that he was ready to ship the same; whereupon M repudiated the contract. Held, that R’s complaint declaring upon a breach of the contract, averring that R, after the breach, sold the bark for the best price attainable, which was a specified sum less than he would have realized but for the breach, but does not allege the market value at Columbus when the default was made, or the expense of shipment and sale, is not sufficient to withstand a demurrer.</p> <p>Same. — Breach, of Contract by Purchaser. — Seller’s Remedy. — Notice. —The seller, in an executed sale not accompanied by delivery, has his choice of two remedies.- He may retain the property for the benefit of the purchaser, and subject to his orders, and sue for the entire purchase price; or he may resell the goods and recover from the purchaser the difference between the contract price and the price of sale. But if the latter course be pursued, the seller, except under peculiar circumstances, for example, where the goods are of a perishable nature, is required to give the purchaser a preliminary notice of the time and place of resale.</p>

<p>Harmless Error. — Overruling a demurrer to a bad paragraph of answer is harmless error where plaintiff’s liability was determined by the findings of the court expressly made under the other paragraphs thereof.</p> <p>Sales. — Warranty.—Waiver of Notice. — Where a manufacturer, through a local agent sold a harvesting machine, warranting same to do good work, such warranty containing the condition that if the machine did not do good work the purchaser to give immediate notice thereof in writing, both to the agent from whom he received the machine and to the manufacturer; the local agent was present at a trial of the machine at which it failed to work, and told the purchaser to try it again, and if it still failed to work to return it; such statement by the agent constituted a waiver of the written notice provided for in the warranty.</p> <p>Judgment. — Special Finding.— Failure to enter judgment on a special finding at the term of court the finding was made and filed, or any order continuing the cause, did not divest the court of jurisdiction thereof.</p>

<p>Guaranty. — Notice of Acceptance. — A bond executed by an employe conditioned that he pay over to his employer all sums of money received by him as such employe, signed by his guarantors or sureties and delivered by him to his employer as a part of the consummation of the contract, is an absolute continuing undertaking on the part of sureties or guarantors, and no notice of the acceptance thereof by the guarantee was necessary.</p> <p>Appeal and Error. — Joint Assignment of Error. — Failure to Argue Error Assigned. — An assignment of error made jointly to the ruling of the court in sustaining a demurrer to two paragraphs of a pleading is insufficient if either of them is good, and where such ruling as to one of the paragraphs is not attacked in the appellant’s argument, such failure to argue will constitute a waiver as to both paragraphs.</p>

<p>Malicious Prosecution. — When Action For Will Lie. — Search Warrant. — Procuring a search warrant to be issued may be made the foundation of an action for malicious prosecution, notwithstanding the affidavit on which such warrant was issued does not charge a crime.</p> <p>Practice.— Harmless Error.— Malicious Prosecution.— Sustaining a demurrer to a paragraph of answer in an action for malicious prosecution, alleging the existence of probable cause, the nonexistence of malice and the good faith of the action, is harmless, as such facts were admissible under the general denial.</p>

<p>Railroads. — Damage by Fire. — Complaint.—In an action against a railroad company for damages caused by fire, a complaint alleging that the defendant negligently permitted a fire to originate on its right of way, and negligently permitted it to escape upon the plaintiff’s lands, and to burn the soil and crops thereon, is sufficient to withstand a demurrer.</p> <p>Practice. — Examination of Witness. — Harmless Errors — The propounding to a witness, of an improper question, where the answer thereto is not responsive and contains no statement as to the issue being tried, is harmless error.</p> <p>Same. — Examination of Witness. — Leading Questions. — The use of leading questions in the examination in chief of a witness is within the sound discretion of the court.</p>

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

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

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

<p>Judgment. — Complaint to Set Aside Default. — Sheriff’s Return not Conclusive. — In a proceeding tinder section 399, Burns’ R. S. 1894, to set aside a default and to be relieved from a judgment, the plaintiff may show that the summons was not in fact served upon her, and that she had no notice of the pendency of the action against her, notwithstanding the fact that the sheriff’s return shows service by copy at her residence.</p> <p>Same. — Relief From Judgment Talcen by Default, After Sale. — The mere fact that a sale had been made -under a judgment and the judgment satisfied of record, does not deprive one against whom the judgment was taken, of relief under section 399, Burns’ R. S. 1894.</p> <p>Pleading. — Demurrer.—Harmless Error. — Sustaining a demurrer to a bad pleading is harmless error, although the demurrer is insufficient to test the pleading.</p>

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

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

<p>Contract. — Breach of. — Measure of Damages. — The measure of damages for failure to carry out a contract of purchase of all tomatoes plaintiff should raise on a certain tract of land, is such contract price, less the cost of gathering and delivering the tomatoes, where it is shown that there was no other market for the tomatoes; and where there is no evidence as to the cost of gathering and delivering the tomatoes or as to their value in the field, only nominal damages can be recovered.</p>

<p>Bills and Notes. — Principal and Surety. — Decedents Estates. —Statute Construed. — Under the provisions of section 2468, Burns’ R. S. 1894, that “if a decedent be a surety only in any joint, or joint and several contract or in any judgment founded thereon, his estate shall not be liable for the payment thereof, unless it be shown that the principal is a nonresident of this State or is insolvent,” etc., proof that principal was insolvent at the time of the trial is sufficient to justify a judgment against a decedent’s estate on a claim filed against the estate wherein decedent was surety on a promissory note which was the basis of such claim, without showdng that payee used due diligence in prosecuting the principal to insolvency, where no notice was given by surety to proceed against principal.</p> <p>Evidence. — Admissibility of, in an Action on Claim Against a Decedent's Estate. — Agency.— Statute Construed. — The signing of the name of a surety to a note, at the latter’s request, and in his presence by one of the makers, does not constitute such maker an agent and render him incompetent to testify to such fact after the death of surety, in an action against his estate on such note under section 508, Bums’ R. S. 1894, providing that “No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness, in any suit upon or involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of the decedent.”</p>

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

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

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

<p>Pleading. — Complaint by Receiver. — Sufficiency of. — The complaint, in a suit commenced by a receiver upon an obligation due a corporation for which he is acting, is not sufficient to withstand a demurrer, which does not allege that leave of court to institute and prosecute the action was obtained before suit was brought, pp. 478-481-</p> <p>Same —Complaint.—Receiver.—The necessary averment in an action by a receiver that he has been given leave by the court to bring the action is not supplied by the averments of the complaint that he has been appointed as receiver and has qualified and entered upon his duties as such, “and accordingly he brings this suit.” p. 481.</p> <p>Same.— Complaint. — Receiver.—Statutes Construed. — The omission from the complaint of the necessary averment in an action by a receiver, that he has been given leave of court to bring the action, is not aided upon appeal by sections 348, 401, and 670, Burns’ R. S. 1894, providing that no objection taken by demurrer and overruled shall be sufficient to reverse the judgment if it appears from the whole record that the merits of the case have been fairly determined, and that technical defects, or defects in form shall not be ground for reversal, pp. 481-484-</p>

<p>Parent and Child. — Excessive Punishment of Child. — Assault and Battery. — A parent has the right to administer proper and reasonable chastisement to his child, without being guilty of assault and battery, but excessive, unreasonable, or cruel punishment is unlawful. Whether the punishment inflicted is excessive or cruel is a question for the jury.</p>

<p>Railroads. — Negligence.—Proximate Came. — While the conductor and a brakeman of a train were assisting others in unloading a heavy piano from a freight car, the conductor, who was within the car, stepped into a hole which had negligently been permitted to remain in the floor of the car, and thereby lost his hold on the piano the weight of which was thrown on the brakeman, by reason of which he was injured. Held, in an action by the brakeman against the railroad company, that the hole in the car floor was not the proximate cause of the injury and therefore the company was not liable.</p> <p>Negligence. — Fellow Servant. — The negligence of a conductor of a freight train while engaged in unloading freight, causing an injury to a brakeman assisting him, is that of a fellow servant.</p>

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

<p>Patents. — Sale of Patent Right. — Statute Construed. — Appellant was the owner of a certain patent right which it claimed was infringed by appellee through using certain improvements upon windmills which it made and sold. To release all liability and to provide against future liabilities, the parties entered into a written agreement by the terms of which in consideration of $2,000, for which notes were given, appellant released appellee from all damages accrued and “granted and licensed” the appellee company to continue the manufacture of the windmills as theretofore with the patented improvement. Held, in an action on the notes, that the notes were not given for a patent right within the meaning of section 8130, Burns’ R. S. 1894, requiring that notes given for a patent right shall contain the words “given for a patent right.” pp. 1/.96-501.</p> <p>Same. — Sale of Patent Right. — The sale of an unexclusive right to utilize an invention is not a sale of a patent right within the meaning of section 8130, Burns’ R. S. 1894. p. 501.</p>

<p>Contract. — Interpretation.—Instruction.—C entered into a written contract with M to furnish 1,200,000 brick to be used in the construction of a sewer which M was under contract to build, delivery to commence about April 1, at the rate of not less that 300,000 brick per month. It was well known to C that M was under contract to complete the sewer by August 1, but this fact was not inserted in the contract. Held, on the trial of an action brought by M against C, for failure to furnish the brick in accordance with the contract, that it was erroneous to instruct the jury that it was the duty of C to furnish the whole of said 300,000 brick, so to be delivered each month, early enough in the month to enable M, by the exercise of reasonable diligence, to lay the same in the sewer within the month, pp. 605-510.</p> <p>Same. — Construction.—Extrinsic Facts. — The rights plainly given by the terms of a contract are not to be reduced or lessened by construction unless it shall appear by extraneous facts that such reduction is essential to the accomplishment of the object for which the contract was made. p. 510.</p>

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

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

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

<p>Chattel Mortgage. — Must be Recorded in Gounty Where Mortgagors Reside.^- Under section 6638, Burns’ E. S. 1894, a chattel mortgage to be valid, as to persons not parties thereto, must be recorded in the county where the mortgagors reside, and within ten days after its execution.</p> <p>Same. — Residence of Mortgagors. — Burden of Proof. — Where in an action against a constable and his bondsmen it is charged that such constable levied execution on, and sold certain personal property that was covered by mortgage, the burden of proof is on the plaintiff to show that the mortgagors reside in the county where the mortgage was recorded.</p> <p>Special Verdict.— Residence of Mortgagors.— A special verdict which makes no finding as to the residence of the mortgagors of a chattel mortgage, except the recitals in the mortgage, a copy of which mortgage is set out in the finding, does not sufficiently find the fact of such residence, so as to bind others than the parties thereto.</p>

<p>Appeal. — Weight of Evidence. — A judgment of the trial court will not be reversed on the weight of the evidence if there is any evidence to sustain it.</p>

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

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

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

<p>Appeal and Error. — Longhand Manuscript of the Evidence, How Incorporated in Bill of Exceptions. — The record must affirmatively show that the longhand manuscript of the shorthand report of the evidence was filed in the clerk’s office before- the filing of the bill of exceptions, and not at the same time and as a part thereof.</p> <p>Same. — Instructions.—Evidence not in Record. — It will be presumed on appeal, the evidence not being in the record, that the instructions asked and refused were refused because not applicable to the case made by the evidence; and that the instructions cannot be regarded as erroneous if they would be correct under any state of facts admissible under the issues.</p>

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

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

<p>Insurance. — Forfeiture.—Waiver of by Accepting Delinquent Assessments After Loss. — Mutual Insurance Company. — Where a director of a mutual insurance company, who was acting" as collector, called upon assured the next morning after a fire and collected two delinquent assessments on a policy of insurance covering such loss, having knowledge of such loss, and the company retained the money so collected, a forfeiture of such policy on account of such delinquency is thereby waived.</p>

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

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

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

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

<p>Principal and Surety. — Bonds.—Where duties are imposed upon a principal in a non-official bond, which, are not commonly attached to the position which he is filling, and no mention of such unusual or different duties is made in the condition of such bond, the sureties thereon can only be held for the default of the principal in the performance of suck duties as are commonly understood to belong to the class of employment by which the principal is designated. pp. 660, 661.</p> <p>Same.' — Extension of Liability of Surety by Implication. — Sureties are favorites of the law and are not bound beyond the terms of the engagement, and their liability cannot be extended by implication beyond the strict terms of the contract, p. 661.</p> <p>Oeeioees. — Bonds.—Water Works Superintendent. — Liability of Sureties on Bond of. — The sureties on the bond of a water works superintendent of a town are not liable for his default in failing to account for water rents collected by him, in the absence of any resolution or ordinance fixing the duties of such superintendent, or any condition in the bond sued upon authorizing him to collect water rents, although his contract of employment provides for such collection, as the collection of water rents forms no part of the duties of superintendent ih the ordinary meaning of the word. p. 662.</p>

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

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

<p>Damages. — Personal Injuries. — Burden of Proof. — Contributory Negligence. — In an action for damages for personal injuries, the plaintiff must allege and prove his freedom from contributory negligence. p. 6S9.</p> <p>Municipal Cobpobations. — Streets Must be Kept m Reasonably Safe Condition.- — It is the duty of a city or town to keep its streets in a reasonably safe condition for travel, p. 691.</p> <p>Same. — Failure to Keep Street in Safe Condition. — Duty of Traveler. —The failure of a town to keep its streets in a reasonably safe condition will not excuse the traveler from the use of ordinary care, p. 691.</p> <p>Same. — Rights of Traveler Who has Knowledge of Defect in Street.— One who has knowledge that a street in a city is out of repair, is not, therefore, bound to forego travel thereon; but the care on the part of the traveler in such case must be in proportion to the danger that might be encountered by reason of the defect or obstruction. p. 691.</p> <p>Negligence. — When a Question of Law. — Facts Undisputed.. — In an action for damages for personal injuries, where the facts as to the manner in which the injury occurred are undisputed, it is the province of the court to determine whether or not the facts amount to negligence, p. 693. ,</p> <p>Contributory Negligence. — Horseman in Use of Street. — A horseman who is apprised of an obstruction in a street at which his horse took fright and turned back, and voluntarily rides the horse a second time to the place of obstruction and is thereby thrown from his horse and injured, is guilty of contributory negligence so as to preclude a recovery in an action against the municipality. p. 693.</p>

<p>Appeal. — Jurisdiction of Supreme and Appellate Courts. — Action to Quiet Title. — Default.—An appeal from, a judgment in a proceeding to be relieved from a default and judgment thereon, entered in an action to quiet title to real estate, must be to the Supreme Court.</p>

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

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

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

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

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

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