Volume 18 — Indiana Appellate Court Reports

<p>County. — Commissioners Have No Powers Except as Granted by Statute. — A. county is not liable for an act of the board of commissioners not within the scope of its statutory powers; and of this fact all persons dealing with the board must take notice, pp. 4, 5.</p> <p>Same. — Powers of Commissioners as Board of Health. — Preventing the Spread of Contagious Diseases.— Sections 6718, 6719, Burns’ R. S. 1894, making the board of commissioners a county board of health with the duty of protecting the public health by the removal of causes of diseases, and by preventing the spread of contagious diseases, do not authorize the board to furnish medical treatment and medicines to a particular family'afflicted with smallpox, where the family is not shown to be indigent; but only such portion of the expense as was necessary to prevent the spread of the disease. pp. 6, 7.</p> <p>Appeal and Error. — Special Finding. — Record.—"Where a purported special finding of facts with the conclusions-of law thereon, not signed by the judge, is' copied in the transcript by the clerk, and is not contained in the bill of exceptions, or made part of the record by order of the court, it will be treated as a general finding, and the exception to the conclusion of law presents no question for review. pp. 8, 9.</p> <p>Same. — Bill of Exceptions. — Longhand Manuscript of Evidence. — The record must affirmatively show that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in the bill of exceptions, p. 9.</p> <p>Same. — When New Trial May be Granted for Excessive Recovery, Though the Evidence is Not in the Record. — Where one of the reasons assigned in a motion for a new trial was that the recovery was excessive, and a general finding of the court contains statements of facts indicating that the amount assessed was too large, a new trial will be granted, though the evidence is not in the record. pp. 9-11.</p>

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

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

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

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

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

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

<p>Special Verdict. — Harmless Error. — Where there is a special finding or a special verdict, errors in overruling demurrers to pleadings are harmless., p. 64-</p> <p>Principal and Surety. — When the Relation Exists. — Neither of two stockholders of a corporation who execute a note for the benefit of such corporation by signing the note on its face will be held a surety for the other, although the proceeds were used, to the knowledge of both, in payment of a note of the corporation indorsed by one of them, and the other was president of the corporation and first signed the note, but with the understanding that the former was to subsequently sign it. pp. 60-63.</p>

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

<p>Principal and Surety. — Failure of Principal to Sign Instrument.— Where a person signs a note as surety for another without an agreement that the latter’s signature would be obtained, the failure to obtain such signature will not release the surety, pp. 82, 83.</p> <p>Same. — Fraudulent Concealment of Facts From Surety. — One who believes that she is executing a note, simply as surety, for the value of goods purchased by her son from the payee at the time, is entirely released from liability where the payee knew such to be her belief, and did not inform her that a preexisting debt was included. pp. 83, 84.</p> <p>Instruction. — Principal and Surety. — An instruction that if anote in suit “is a perfect note on its face, this is a strong inference that the party signing the same did so as principal, and not otherwise,” invades the province of the jury and is erroneous, p. 85.</p>

<p>Interrogatories to Jury. — Conclusions.—Answers to interrogatories which call for a conclusion of the jury cannot be considered in determining the sufficiency of a verdict, p. 91.</p> <p>Complaint. — Necessary Averments. — Contributory Negligence. — Damages. — A complaint-in an action for injuries arising from negligence must aver specifically that the plaintiff was free from contributory negligence, or must state facts showing that his own negligence did not proximately contribute to the injury, p. 91.</p> <p>Same.— Personal Injuries. — Specific Facts Pleaded Control General Averments. — A general averment that an injury was inflicted without any fault or negligence on the part of the person injured is controlled by a statement of specific facts and circumstances upon which such general averment is based, p. 91.</p> <p>Master and Servant. — Fellow Servant. — The test whether in a given case an employe is to be regarded a vice principal or a fellow servant, is not his title, or rank, or power to employ or discharge, but the nature of the services which he performs. An employe authorized to perform duties which are clearly the master’s duties is, to that extent, a vice principal, pp. 96, 97.</p> <p>Same. — Fellow Servant. — Negligence.—In an action against a railroad company by an employe for an injury received while assisting in constructing a bridge, caused by a jackscrew falling from the timbers above and striking plaintiff, an averment in the complaint that such jackscrew fell and injured plaintiff by reason of the negligence of the foreman in failing to watch it, and prevent it from falling is but a charge of negligence of a fellow servant for which no recovery can be had against the company, pp. 98-103.</p>

<p>Municipal Corporation. — Foreclosure of Assessment Lien for Sidewalk Improvement. — Complaint.—In an action^ to foreclose an assessment lien for the construction of a sidewalk, an averment in the complaint “that the plaintiffs completed said work in accordance with the terms and stipulations of said agreement, to the entire satisfaction of the department of the public works of said city, and the same was duly accepted hv said department,” is a sufficient averment that the plaintiffs completed the work, and performed all the conditions of said contract on their part to be performed, pp. 104, 105.</p> <p>Same. — Failure of Property Owner to Pay Assessment for Sidewalk Improvement. — Action.—The contractor’s remedy upon the failure of a property owner to pay an assessment lien for the construction of a sidewalk is exclusively in rem. p. 106.</p> <p>Same. — Sidewalk Improvement. — Foreclosure of Lien. — Counterclaim. —In an action to enforce a lien for an assessment for the construction of a sidewalk, the defendant cannot set up as a counterclaim damages sustained by reason of the failure to do the work according to the plans and specifications, pp. 105-107.</p> <p>Same. — Lien for Sidewalk Improvement. — Indianapolis City Charter. —Under the act of March 6, 1891, known as the Indianapolis city-charter, the board of public works are the sole judges of the question as to whether a contract for the construction of a sidewalk was performed according to its terms, and acceptance by such board, in the absence of fraud, is conclusive, p. 108.</p> <p>Same. — Sidewalk Improvement. — Indianapolis City Charter. — Fraud. —Fraud on the part of the contractors for a sidewalk improvement -under the Indianapolis city charter, to invalidate the acceptance of the work by the board of public works, must be fraud in connection with the act of the board in the approval of the work, and the mere fact that the work was fraudulently done is not sufficient. p. 109.</p>

<p>Appellate Court.— Jurisdiction in Causes Originating Before Justice of the Peace. — The Appellate Court has no jurisdiction of an appeal from an order of the circuit court denying a motion to mod- « ify a judgment, where the case originated before a justice of the peace, and the amount in controversy, exclusive of interest and costs, does not exceed §50.00. p. 111.</p> <p>Appeal and Error. — Bill of Exceptions. — A purported bill of exceptions hearing filemarks of the clerk of the court below, found with the' transcript, but not a part thereof, or referred to therein, or in any certificate of the clerk, cannot be considered on appeal, p. US.</p>

<p>Landlord and Tenant. — Action for Possession. — Damages.—In an action by a landlord for possession of property, and damages for its unlawful detention, the rental value of the premises during the time of the unlawful holding is recoverable as damages, p. 117.</p> <p>Same. — Action for Possession an Action in Tort.— Exemptions.— An action by a landlord, under section 7106, Burns’ R. S. 1894, for possession of property unlawfully detained by a tenant, sounds in tort, and no exemption can be had upon a judgment rendered therein, pp. 117,118.</p>

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

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

<p>Railroads. — Ticket is Contract Between Purchaser and Railroad.— A railroad ticket is a contract between the purchaser and the railroad company, p. 129.</p> <p>Same. — Ticket.—Condition.—A condition in a railroad ticket that it shall not be good for a return passage unless signed by the original purchaser on the day of departure returning, and in the presence of the authorized agent of the company, which is made in consideration of a reduction of fare, is not unreasonable, p. 180</p> <p>Same. — Damages.—Ejection of Passenger. — A railroad company is not liable in damages for refusing to accept a ticket for a return passage, and in ejecting the passenger, where the ticket tendered by such passenger was an excursion ticket containing the conditions that, in order to entitle the holder to a return passage, it must be signed by the original purchaser, on the day of the departure returning, and in the presence of the authorized agent of the company, where such ticket was not signed or attested, although it was shown that the passenger applied at the office of the company at the terminal point, a small station, at 10:15 p. m., after the office was closed for the purpose of having the ticket signed and attested. pp. 126-136.</p>

<p>Intoxicating- Liquor. — Gift of Liquor by Druggist Without Prescription. — Evidence.—In tbe prosecution of a druggist for giving away intoxicating liquor without a prescription, in violation of section 9y) of tbe act of March 11, 1895, it was shown that a practicing physician came into defendant’s store and behind the prescription case where defendant and prosecuting witness were, and while the defendant was only a few feet away, and where he could see all that was done, the physician poured from a flask two glasses of whisky, one of which he drank, the other he gave to prosecuting witness, and at once the physician and prosecuting witness left the store. Within a few minutes defendant found lying upon his prescription case what purported to be a prescription, signed by the physician, for whisky for prosecuting witness, which defendant filed with other prescriptions, and charged the liquor to the physician. Held, that the evidence authorized the jury to conclude that the gift was made with-the defendant’s consent, pp. 136-138.</p> <p>Same. — Gift of Liquor by Druggist. — Prescription.—Under section 9)4 of the act of March 11, 1895, providing that druggists shall sell intoxicating liquor in less quantities than a quart at a time,, only upon prescription signed by a regular practicing physician, a prescription addressed to no one, and made for a “sufficient quantity” is not a compliance with the statute, pp. 139, lift.</p>

<p>Appeal and Error. — Special Ver diet. — Harmless Error. — Errors in overruling demurrers to pleadings, when there is a special verdict, are not material, as a correct statement of the law upon the facts found would correct such errors, p. 145.</p> <p>Railkoads. — Construction of in Public Highway. — The public is not deprived of its easement in a public highway by the admission of a railroad company to the use of such highway, p. 150.</p> <p>Same. — Construction of in Highway. — Injury to Person Near Track. —A railroad company constructed’ its road bed along and over a public highway, rendering the use of such highway, for vehicles, impossible; but the public continued to use it for a foot way, and on each side of the track a space three feet wide was kept smooth by the company for the use of foot passengers. D was walking-along the foot way and, when at a distance of forty feet from the track, was struck and injured by a cross-tie which fell from a derailed car of a passing freight train, such car being derailed by the negligence of the company. Held, that D was on the-public highway, where he had a right to be, and that he could recover from the company for injuries sustained, pp. 149, 150.</p>

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

<p>Appeal and Error. — Sufficiency of Complaint May be Assailed on Appeal for First Time. — Under section 346, Bums’ R. S. 1894, the sufficiency of a complaint may be raised for the first time by assignment of errors in this court, p. 16%.</p> <p>Principal and Surety. — Contribution Between Co-Sureties. — Complaint. — A complaint by a guardian of an insane person, alleging that his ward became surety with defendant’s decedent and another on certain notes, and to prevent suit being brought was compelled to pay such notes, and that the maker and other surety were insolvent, and demanding that the estate of decedent contribute one-half -of the amount so paid, states a cause of action, pp. 159-16%.</p> <p>Same. — Contribution Between Co-Sureties. — Complaint.—A complaint by a guardian of an insane person alleging that his ward became surety with defendant’s decedent and another on three certain notes, and to prevent suit being brought was compelled to pay such notes, and that payment was demanded of decedent in his lifetime, and of the administrator of decedent’s estate, which had been refused, and demanding judgment against the estate, states a cause of action, pp. 159-16%.</p> <p>Same. — Alteration of Instrument by Promring Additional Sureties.— Discharge. — Where a promissory note has been fully executed and delivered, without any agreement that further signatures thereto shall be obtained, and another person signs the same without the knowledge or consent of the previous signers, this is such a material alteration as relieves the previous signers from liability, pp. 164-166.</p>

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

<p>Appeal and Eeeoe. — Complaint Assailed for First Time on Appeal. —When Defects Cured by Verdict. — A complaint which is attacked for the first time on appeal will be upheld if it contains the material averments necessary to state a cause of action, although such averments are defectively made. pp. 178, 17S.</p> <p>Mastee and Seevant. — Negligence.—Incompetency of Fellow Servant. —Complaint.—In an action against an employer for personal injuries caused by the incompetency of a fellow servant, of which incompetency the defendant well knew, and of which plaintiff had no knowledge, it is not necessary that the complaint allege specifically in what manner the incompetency of such fellow servant appeared.- pp. 17S, 17b.</p>

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

<p>Ckuhnal Law.— Fornication. — Indictment. —Statute Construed'.— An indictment under the provisions oí section 2077, Bums’ R. S. 1891, which charges that the parties who were unmarried lived and cohabited together as man and wife, sufficiently charges the crime of fornication.</p>

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

<p>Evidence. — Written Statement Made Out of Court. — A written statement made out of court by one not a party to the suit, in the absence of the plaintiff, to the effect that certain radiators placed in his hotel building by defendants were unsatisfactory and defective in certain particulars described, >nd that by reason of the delay in the completion of the work beyond the time specified in the contract, 1350.00 was deducted from the price to be paid defendants in settlement, is inadmissible in evidence as a defense in an action against defendants for the purchase-price of such radiators.</p>

<p>Contract. — Subscription.— Delivery.— Complaint. — A complaint in, an action on a subscription to a contract to pay a certain sum of money to secure the location of a manufactory, which alleges that certain subscriptions were solicited and given by private individuals to reimburse plaintiff for its subscription, among which was defendant’s, sufficiently shows the delivery of such contract to plaintiff.</p>

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

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

<p>Practice. — Consolidation of Causes. — The right to consolidate causes is one of the inherent powers of a court, which should be exercised only when necessary to the ends of justice, to avoid multiplicity of suits, and to save costs to litigants, p. 216.</p> <p>Appeal. — Consolidation of Causes in Appellate Court. — Dismissal.— Where defendant appeals, and plaintiff files cross-errors, a second appeal from the same judgment, presenting the same questions, afterwards taken by plaintiff, will not be consolidated with the first, but will be dismissed, pp. 216, 217.</p> <p>Same. — Cross-Errors. — Dismissal by Appellant. — -The dismissal of an appeal by appellant does not carry with it the assignment of cross-errors, p. 219.</p>

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

<p>Evidence. — Sufficiency Of. — The sufficiency of the evidence to sustain the verdict is a question for the trial court.' p. 228.</p> <p>Same. — Contradiction of Witness by Party Producing Him,. — Criminal Law. — Statute Construed. — Under the provision of section 1865, Bums’ R. S. 1894 (1796, R. S. 1881), the party producing a witness in the trial of a criminal cause may contradict him where he has given testimony prejudicial to the party by whom he was introduced. p. 229.</p>

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

<p>Complaint. — Ejection of Passenger. — Necessary Averments. — A complaint in an action against a railroad company for the wrongful ejection of a passenger, alleging that such' passenger tendered to. the conductor the regular cash fare to a station on defendant’s road is insufficient, which does not allege that the regulations of defendant provided for the discharge of passengers from the train on which plaintiff was riding at such station.</p> <p>Same. — Ejection of Passenger. — It must affirmatively appear from the complaint in an action against a railroad company for the ejection of a passenger, that the ejection was wrongful.</p>

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

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

<p>Bills and Notes. — Indorsement of Note to Co-Payee. — Liability.—A promissory note was made payable to the order of two persons, one of whom assigned his interest in the note to his co-payee by the following indorsement on the back thereof: “I sign over my interest on the within note to Orlando C. Saffell.” Held, that the assignment merely transferred the assignor’s interest in the note, and did not make him liable as an indorser.</p>

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

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

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

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

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

<p>Animals. — Liability of Township for Horse Killed by Dog. — Repeal of Statute by Implication. — The act of March 5, 1891 (sections 2856-2864, Bums’ R. S. 1894), providing a method of taxing dogs, and for the payment hy the township for horses and other animals killed by dogs, was impliedly repealed by the act of March 6, 1891 (sections 8457-8654, Burns’ R. S. 1894), providing another and antagonistic method for the taxation of dogs. Following Kerlin v. Reynolds, 142 Ind. 460.</p>

<p>Practice. — Exclusion of Evidence to Prove Admitted Fact. — Harmless Error. — The exclusion of evidence offered in support of a proposition is harmless, where, in the presence of the jury, the opposing counsel admit the truth of the proposition so sought to be proved. p. 287.</p> <p>Instructions. — Pleading and Proof. — While the evidence must correspond with the pleading, yet if there may be a recovery upon proof of some of the allegations without evidence sustaining others, the proof of all the averments should not be required in the instructions to the jury. p. 288.</p>

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

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

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

<p>Complaint. — Fires from Railroads. — Negligence.—Contributory Negligence. — A complaint against a railroad company for damages to property from fire escaping from right of way, which alleges that the fire was by defendant carelessly and negligently allowed to escape to plaintiff’s adjoining premises, and burn up and destroy plaintiff’s property, without the fault or negligence of plaintiff, sufficiently shows negligence upon defendant’s part, and negatives contributory negligence on the part of plaintiff, p. 309.</p> <p>Appeal and Eeeob. — Complaint Attacked for First Time in Appellate Court. — Under proper assignment of error any defect in a complaint which would have been an available ground of demurrer before judgment can be taken advantage of in the Appellate Court, where such judgment is taken by default, pp. 309, 310.</p> <p>Same. — Assignment of Error. — Complaint.—Where the sufficiency of the complaint as a whole is assigned as error, and any paragraph thereof is good, the sufficiency of the other paragraph, cannot be questioned, p. 310.</p>

<p>Appeax and Ebbob. — Evidence.—Where there was some evidence sustaining the finding of the jury, a judgment based on such finding will not be reversed on appeal, p. 812.</p> <p>Masteband Sebvant. — Work and Labor. — Decedent’s Estate. — Pleading. — Defense.—Where the relation of master and servant is shown to exist in the trial of a cause against a decedent’s estate, it does not devolve upon the claimant, who lived in decedent’s family during the rendition of such services, to show that her services were worth more than board and clothes furnished her by decedent, as such charge for board and clothing was matter properly in defense to be proved under a plea of set-off. pp. 812, 818.</p> <p>Same. — Parent and Child. — In an action against a decedent’s estate for work and labor by one who lived in decedent’s family, the question as to whether the family relation existed is one of fact to be determined from the facts and circumstances of each case, and when it is shown that the relation of parent and child was formed and continued to exist, the courts will not reduce that relationship to one of master and servant, p. SlJj..</p> <p>Evidence. — Value of Services. — Work and Labor. — Where a witness testified in an action against a decedent’s estate for work and labor done, that she had seen plaintiff working for decedent, particularized the kind of work she had seen her do, and then stated the value of such services, the admission of such, evidence will not be held to be erroneous on the ground that it was not shown that the witness knew the value of such services in the neighborhood in which the work was done, where the record fails to show how far away witness lived, pp. 315, 316.</p>

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

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

<p>Contracts. — Deed.—Reservation.—Where a deed of conveyance to real estate was made “subject to all rents and profits of said farm for the year 1895,” etc., and contemporaneously with the execution of such deed a written contract was entered into between the parties reciting that such deed is executed, “subject to all rents and profits of said farm for the year 1895, as evidenced by two certain leases, one to Jacob Wycliff for the rent of said place to September 1, 1895, and the other to the Shelbyville Gas Company for $100.00 per annum. * * * It is further expressly agreed that in case said Shelbyville Gas Company refuses to pay said Binford the $100.00 rent for the gas well in the fall of 1895, on account of his not being the owner of the farm, that the said Thomas will receive and receipt for said rents and turn the same over to Binford.” The grantee collected the $100.00 rent from the gas company which was in advance to November, 1896, and tendered to grantor $11.50, the'proportion thereof for the year 1895. Held, that by the terms of the contract the grantor was entitled to recover the $100.00. pp. 331-334.</p> <p>Practice.' — Overruling Demurrer to Bad Answer. — Overruling a demurrer to a bad answer is not rendered harmless by reason of a general denial being pleaded, or because there are good answers under which the same evidence is admissible, p. 33J¡..</p>

<p>Compromise and Settlement. — Contract Procured by Fraud. — Rescission. — Return or Tender of Consideration. — A party claiming to have been induced by fraud to sign a contract and agreement, and having received something of value for the execution of the alleged contract, cannot ignore the same and proceed in the assertion of his original rights as if the contract had not been made, without disaffirming the contract, and restoring or offering to restore, what he may have received under the contract.</p>

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

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

<p>Courts. — Jurisdiction.—Presumption.—Foreign Judgments. — An allegation in a complaint on a foreign judgment that the court in which such judgment was rendered was a court of general jurisdiction, is sufficient to raise the presumption that such court had jurisdiction of the subject-matter of the action and of the person of the defendant, pp. 893-396.</p> <p>Same. — Foreign Judgments. — Law of Other States. — Presumption.— In an action in this State on a judgment obtained in another state it will be presumed, in the absence of any showing to the contrary, that the common law prevails in such state, p. 397.</p> <p>Parties. — Dismissal as to One Party. — Amendment of Pleading.— Presumption. — Foreign Judgment. — Where the record of a foreign judgment shows that the action was originally brought on a joint cause of action, but at the time .of the trial the plaintiff dismissed as to one of the defendants,- and the remaining defendant appeared and made no objection to the dismissal of the action as to his co-defendant, and the cause was tried on the theory that he was individually liable, it will be presumed that the pleading was so amended as to give the court jurisdiction of the subject-matter. pp. 397, 398.</p> <p>Judgment.- — Transcript.—Admission in Evidence in Action on Foreign Judgment. — An objection to the admission in evidence of the transcript of a foreign judgment in an action on such judgment, for the reason that the words “pending in said court,” contained in such transcript, shows upon its face that it is still pending, is not well taken, as such words mean nothing more than that the cause was still pending in so far as the collection of the judgment was concerned, p. 398.</p> <p>Same . — Transcript.—OlerJc’s Certificate. — Foreign Judgment.— The admission in evidence of the transcript of a foreign judgment in the trial of an action on such judgment is not objectionable for the reason that the clerk’s certificate to such transcript shows that there was more than one defendant where such action was Originally brought against two defendants jointly, and before trial dismissed as to one, and which'shows that -the plaintiffs and defendant are identical with the plaintiffs and defendant in the original suit. p. 398.</p> <p>Former Adjudication. —Foreign Judgment. — Answer. — Counterclaim. — In an action on a foreign judgment rendered on a quantum meruit for legal services performed by the plaintiffs in such action an answer by the way of counterclaim, alleging that such judgment defendant expecting to become the assignee of a certain company, employed plaintiffs to look after and control all legal matters pertaining thereto, and that snch plaintiffs failed to inform defendant that, in order to bind the trust estate for attorney’s fees a formal order of court should be made authorizing such employment, and that by reason thereof said judgment was obtained against defendant personally, is not a mere defense that should have been pleaded in the original action, and the issue raised by such counterclaim was not res judicata, pp. 399-412.</p>

<p>Intoxicating Liquors. — Indictment.—Nicholson Law. — Statute Construed. — An indictment under section 4 of the act of March 11, 1895 (Acts 1895, p. 350), which charges that defendant holding a license to sell intoxicating liquors occupied a room for the sale of such intoxicating liquors which did not front a street or highway, as in said act provided, is insufficient without charging that^iquor was sold in such room.</p>

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

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

<p>Pleading. — Theory.—The court will determine the theory of a pleading from the prominent or leading allegations thereof, p. 488.</p> <p>Special Verdict. — .Railroad.—Stock Killed on Right of Way.— Fences. — Negligence.—A special verdict in an action against a railroad company for killing stock that had escaped from plaintiff’s pasture, which finds that defendant had permitted its fence along such right of way to be and remain out of repair for one day preceding the injury, and which fails to find that the stock escaped by reason thereof, is insufficient to establish actionable negligence on the part of defendant, pp. 488-442.</p>

<p>Bills and Notes. — Township Orders. — Assignment.—A note or order issued by a township trustee is not commercial paper, and its assignment cannot cut off any defense of the township thereto, p. US.</p> <p>Township Trustee. — Power to Bind Township for Purchase of Beading Circle Boohs. — Schools.—Statute Construed. — A school trustee has no authority under section 5920, Burns, R. S. 1894, to bind his school township by a contract for the purchase of reading circle books for the use of the public schools of his township, p.</p> <p>Fraud. — Township Trustee. — Bepresentations as to Township Order. —Mobility Of. — A township trustee cannot be held personally liable for the amount of a township order, by reason of a written statement made by him to the purchaser thereof that the order was all - right, where such order was on its face void. pp.</p>

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

<p>From the Ma’dison Circuit Court.</p>

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

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

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

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

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

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

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

<p>Intoxicating Liquors. — License.—Appeal.—A proceeding to obtain a license to sell intoxicating liquor is a judicial proceeding, and an appeal may be taken from the decision of the hoard of commissioners by the applicant or by a remonstrant, p. 520.</p> <p>Same. — Appeal.—Trial De Novo. — An appeal from a decision of the board of commissioners refusing to grant a license to sell intoxicating liquor, stands for trial in the circuit court de novo. p. 520.</p> <p>Same. — License.—Appeal.—Collateral Attach. — Where the board of commissioners refused remonstrants to withdraw their names from a remonstrance to an application for a license to sell intoxicating liquor, and the applicant appealed to the circuit court, a judgment of the circuit court granting the remonstrants the right to withdraw their names, and a finding in all things in favor of the applicant fixed his right to a license and all privileges thereunder, whether such decision of the circuit court was right or wrong, and such judgment is binding against a collateral attack in a prosecution against such party for selling liquor thereunder, although the State was not a party to such proceeding, pp. 520, 521.</p>

<p>Special Verdict. — Omission of Essential Fact. — An essential fact omitted from a special verdict will be considered as found against the party having the burden of proving it. p. 528.</p> <p>Same. — Negligence.—When Judgment for Defendant Will Be Set Aside. — Where the questions and answers going to make up a special verdict, in an action for damages for the death of plaintiff’s decedent, caused by the alleged negligence of defendants, are not in form as contemplated hy law, and when construed together show negligence on the part of defendants, and such answers therein tending to show defendants’ freedom from negligence are contradicted by other answers, and which states some facts from which freedom from fault on the part of decedent may be inferred, a judgment rendered on such special verdict in favor of defendants will be set aside, pp. 528-525.</p>

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

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

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

<p>Railroads. — Fires Escaping from, Bight of Way. — Damages.—Contributory Negligence. — Burden of Proof. — In an action against a railroad company for damages on account of fire escaping from its right of way and damaging plaintiff’s property, resulting from the negligence of defendant, the burden is upon plaintiff to plead and prove want of contributory negligence upon his part. pp. 560, 551.</p> <p>Special Verdict: — Bailroads.—Fires Escaping from Bight of Way. — Damages.— Freedom from Contributory Negligence. — A special verdict in an action for damages against a railroad company, caused by fire escaping to plaintiff’s premises by reason o'f defendant’s negligence, to entitle plaintiff to a judgment thereon, must show that plaintiff was free from negligence proximately contributing to the damage suffered by him. 552, 553.</p> <p>Railroads. — Fires.—Damages.—Contributory Negligence. — In an action against a railroad company for damages on account of fire escaping from its right of way, it devolves upon plaintiff to show a reasonable effort on his part, under the circumstances, to prevent the loss for which he sues, where he had notice of the fire endangering his property, p. 553.</p> <p>Same. — Fires.—Damages.—Special Verdict. — A special verdict in an” action against a railroad company for. damages on account of fire escaping from its right of way to plaintiff’s premises, must show all the facts essential to a recovery; mere conclusions of law and matter of evidence stated in the verdict will not serve the same purpose as the finding of facts, p. 553.</p> <p>Special Verdict. — Negligence.—Where negligence is in issue, and the facts are such that different conclusions may be drawn, the primary facts from which such conclusions are drawn by the jury must be stated in the verdict, p. 554.</p> <p>Same. — Bailroads.—Fires.—Contributory Negligence. — An interrogatory and answer in a special verdict in an action against a railroad company for damages from fire escaping from its right of way: “Did not the plaintiff and the members of his family make all reasonable efforts to subdue and extinguish said fire? Answer, Yes,” do not sufficiently show plaintiff’s freedom from contributory negligence, pp. 554, 557. •</p> <p>Same. — Finding as to Admissions Made by Party. — A finding by the jury, by an interrogatory and answer, that defendant, in the trial of the action, admitted its liability as alleged in plaintiff’s complaint, and waived any proof relative thereto, except as to the amount of recovery, is improper, pp. 557-559.</p>

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

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

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

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

<p>New Trial. — Complaint.—Newly Discovered Evidence. — In an action to obtain a new trial, on tbe ground of newly discovered evidence, tbe facts essential to tbe validity of tbe complaint must be alleged. If any of the essential elements of the complaint are wanting, they cannot be supplied by resorting‘to the evidence nor the pleadings in the original case. pp. 60S, 603.</p> <p>Same. — Newly Discovered Evidence. — On the trial of a suit on a promissory note, where the answer was payment, a witness testified that payee, in a conversation with her, stated that he had had a settlement with the drawer of the note, and that they were “square.” There was a finding and judgment for plaintiff. At a subsequent term of court, defendant brought an action for a new trial on the ground of newly discovered evidence in that payee had admitted that the note had been paid. Held, that the newly discovered evidence was evidence of the same kind as had been offered at the trial, and therefore cumulative, pp. 603-607.</p>

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

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

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

<p>From the Daviess Circrnt Court.</p>

<p>Intoxicating Liqtxoks. — License.-—Wholesale Dealers. — Indictment. —An indictment or information for violation of section 3 of the act of March 8, 1897 (Acts 1897, p. 253), prescribing a license to sell intoxicating liquors, with a proviso exempting wholesale dealers from compliance therewith, need not aver that defendant is not a wholesale dealer, as that is a matter of defense, p. 632.</p> <p>Saxe. — Sale Without Lcense. — Indictment.—Statutes Construed. — An affidavit and information charging that defendant did unlawfully transact a certain business, to wit, the business of selling malt liquor for the purpose of gain, in less quantities than five gallons at a time, etc., he not having at the time a valid license, etc., does not charge an offense described by section 3 of the act of March 8, 1897 (Acts of 1897, p. 253), for which punishment is prescribed by section 2186, Bums’ R. S. 1894. pp. 629-633.</p>

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

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

<p>Cbiminal Law. — Authority of Policeman to Make Arrest Without Warrant. — A policeman of a city has authority to arrest, without a warrant, a person violating a criminal statute of the State in his presence or view. p. 669.</p> <p>Pleading. — Answer.—False Imprisonment. — An answer in justification to a complaint for false imprisonment, sufficiently identifies the arrest and imprisonment justified, if it is stated in the answer to be the same imprisonment complained of by plaintiff, pp. 669, 670.</p> <p>Same. — Answer.—Confession and Avoidance. — Duplicity.—An answer, admitting certain facts averred in the complaint, alleging new matter in avoidance or justification thereof, and denying all other material allegations of the complaint, is not bad for duplicity, pp. 670-672.</p>

<p>Municipal Cobpobation. — Change of Oracle of Street. — Damages.— Repeal of Statute. — Indianapolis City Charter. — So much of section 3508, Burns’ R. S. 1894, as provides for the assessment and tendering of damages, before the grade of a street can he changed after it has been duly established, in cities of 100,000 inhabitants, was repealed by the act of March 6, 1891 (Acts of 1891, p. 137), commonly designated as the Indianapolis city charter, pp. 676-682.</p> <p>Same. — Property Abutting Street. — Damages from Surface Water.— When City Not Didble. — A city is not liable to the owner of property abutting on a street, for damages resulting from the flow of surface water upon such property, where the cause of such flow is that the lots are below grade, pp. 682, 688.</p>

<p>Railroads. — Injury at Crossing. — Contributory Negligence. — Where a driver of a team of horses in crossing a railroad track which he knew to be dangerous and which was so located that an approaching train could not be seen, approached such crossing driving in a trot, without stopping to listen whether a train was approaching or not, was guilty of such negligence as to bar a recovery for an injury received by being struck by a passing train on such crossing, notwithstanding defendant’s negligence in failing to sound the whistle or ring the bell in approaching such crossing as required by statute, pp. 685-687.</p> <p>Special Verdict. — When Ultimate Facts Will he Disregarded. — Negligence. — When the facts found in a special verdict are such that the court can, as a matter of law, adjudge that the injured party was or was not guilty of contributory negligence, the finding of such ultimate facts will be disregarded, p. 687.</p>

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

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

<p>Complaint. — Sufficiency of, in Action for Debt. — A complaint which avers that plaintiff delivered to defendant a certain quantity of wheat of a stated market value is not sufficient in an action for debt. p. 696.</p> <p>Bailment. — When Contract Amounts to. — A receipt drawn by a warehouseman for a certain quantity of wheat “received in store, subject to our charges. Fire at owner’s risk,” Constitutes a contract of bailment, pp. 696, 697.</p> <p>Warehouseman. — Conversion.— Action for Recovery of Property Converted. — Where a warehouseman sold wheat on deposit and appropriated the money to his own use, an action against such warehouseman, waiving the conversion and seeking a recovery upon an implied contract, must be for the price received for the wheat, and not for the value of the converted wheat, p. 697.</p> <p>Same. — Bailment.—Property Accidentally Destroyed. — When property in the custody of a bailee is destroyed accidentally, without any fault on his part, the bailee is not liable, p. 699.</p> <p>Same. — Warehouse Receipts. — Construction.—Commercial Usage. — A receipt given by a warehouseman for wheat received may be construed by adopting the meaning of its own terms as explained by commercial usage, pp. 700-70%.</p> <p>Same — Grain Deposited in Common Receptacle. — Destruction by Fire. —Liability of Warehouseman. — Owners of wheat deposited with a warehouseman engaged in receiving grain in store and mingling same in a common receptacle and selling and shipping the grain so stored, are owners as tenants in common of the entire quantity of the grain so commingled, and a depositor of grain who has so deposited a certain quantity is the owner of an undivided portion of the common amount, not only while his grain is actually present in the common store, but his title as tenant in common will continue so long as any grain so deposited by any of the depositors remains in store, unless withdrawn or transferred by him. If at any time the whole mass is less than the aggregate deposits, then each depositor owns such proportion of the grain in store as his deposit bears to the aggregate of all the deposits; and if the warehouse and contents be destroyed by fire, without fault of the warehouseman, at a time when there is not a sufficient amount of grain in the warehouse to satisfy the demands of all depositors, by reason of sales thereof made by the warehouseman, a depositor can recover for the value of the grain deposited by him, less his proportionate share of the aggregate amount on deposit at the time of the fire. pp. 702-704.</p>

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

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

<p>Appeal from the Grant Circuit Court.</p>

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

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