Volume 19 — Indiana Appellate Court Reports

<p>Evidence. — Agreed Statement of Facts. — How Brought into Record. —An agreed statement of facts is not an agreed case under the statute by reason of it being certified as such, but when such statement is mere evidence in the cause, it must be brought into the record by a bill of exceptions, pp. 3.</p> <p>Action. — Property Seized on Execution. — Trial of Rights Of. — Exclusive Remedy. — The failure of a person claiming the ownership of property, after having received notice of the seizure of the same as provided by sections 1618, 1614, Burns’ R. S. 1894 (1545, 1546, R. S. 1881), to institute proceedings to try the right to such property as therein provided, will constitute a bar to any subsequent action against the officer seizing the property for the recovery thereof. pp. 3-7.</p> <p>Replevin. — Notice.—Description of Property. — A notice pleaded in answer to a complaint for the replevin of a cow seized by an officer under a writ of execution, which describes the property as “one brindis heifer supposed to be four years old,” does not contain a sufficient description of the property to protect such officer under sections 1613, 1614, Burns’ R. S. 1894 (1545, 1546, R. S. 1881), providing the time and manner of the trial of the rights of property seized on execution, where the complaint described the property as “one cow, red in color, with brindle stripes, and partly white tail, dehorned, and about three years old.” pp. 7, 8.</p>

<p>Highways. — Remonstrance.—Failure of Remonstrance to State Any Specific Claim of Damages. — Waiver.—Evidence.—Where in the location of a highway an owner of real estate over which the proposed highway passed, filed a remonstrance for damages, the refusal of the circuit court on appeal to admit evidence as to specific damages on the ground that the remonstrance contained' no specific claim covering the damages inquired about was error where the petitioners made no objections to the remonstrance, nor in any way tested the sufficiency of same, either in the commissioners’ court or in the circuit court.</p>

<p>Appeal and Error. — Assignment of Error. — Where the court overruled a demurrer to six paragraphs of answer, an assignment of error attacking but one paragraph should designate the particular paragraph attacked, p. 15.</p> <p>Same. — Longhand Manuscript of Evidence. — -How Made Part of Record. — In order that the original longhand manuscript of the evidence become a part of the record on appeal, the record must affirmatively show that said transcript was first filed in the clerk’s office, afterwards incorporated in the bill of exceptions, then presented to the trial judge and authenticated by his signature, and such bill of exceptions then filed with the clerk, p. 16. Instructions.— When Evidence Not in Record. — Presumption.— When the evidence is not in the record the court will presume that requested instructions were refused because they were not applicable to the case made by the evidence, p. 17.</p> <p>Same. — When Evidence Not in Record. — Where the evidence is not in the record, instructions given by the court cannot be regarded as erroneous if they can be considered correct upon any state of facts admissible under the issues, p. 17.</p> <p>New Trial. — Misconduct of Jury. — A new trial will not be granted on account of misconduct of jurors, unless it be made to appear affirmatively that the party complaining had no knowledge of such misconduct before the jury retired to consider their verdict, pp. 17-19.</p>

<p>Appeal and Error. — Assignment of Error. — Par ties. — The assignment of errors is the appellant’s complaint in the appellate court and must contain the full names of all the parties to the appeal. p. SO.</p> <p>Same. — Dismissal.—Where there was no judgment for or against the only appellant named in the assignment of errors, the appeal will be dismissed by the appellate court of its own motion, p. SI.</p>

<p>Negligence.' — Complaint for Personal Injury. — Sufficiency.—Proximate Cause. — A complaint charging that defendant, engaged in the mining business, placed a large amount of slack, dirt, small coal, and other refuse from its mine near a public highway, knowing that it was the nature of such refuse matter to take fire and burn at and near the bottom and along the sides, and after so burning large portions thereof wduld slide down, thereby making a noise and emitting smoke, and that plaintiff’s horse while being driven along such highway became frightened at the burning and falling of such material and ran away and injured plaintiff, sufficiently connects defendant’s negligent act in placing the material along the highway with the immediate cause of plaintiff’s injury.</p>

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

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

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

<p>Complaint. — Tested for First Time on Appeal.— Where a complaint omits the statement of a material fact essential to a right of recovery, the question may be raised for the first time on appeal, pp. 50, 51.</p> <p>Insurance. — Cancelation of Policies. — Remedy.—Life Insurance.— Where a policy of insurance is wrongfully canceled by the insurer the insured may obtain a reinstatement thereof, or maintain an an action for damages, the measure of damages being the cash surrender value of the policy, p. 52.</p> <p>Same. — Cancelation of Policy. —Return of Premium. —Life Insurance. —Where a policy of insurance is issued and the risk attaches thereunder, an action cannot be maintained, in the absence of a contract to that effect, for the return of the premium paid. p. 52.</p> <p>Same. — Cancelation of Policy. — Remedy of Insured. — Life Insurance. —Where a life policy duly issued has been wrongfully canceled by the insurer, the insured may sue and recover the present value of the policy, or he may tender the premiums as they become due and a recovery may be had for the full amount of the policy on the death of the insured, or a proceeding in equity may he maintained to declare the contract valid, pp. 52-57.</p>

<p>Taxation. — Railroads.—Recovery of Taxes Y/rongfully Assessed.— Where the personal property of a railroad company has been assessed by the township assessor the board of equalization has no power to increase the assessment so made, and an action may be maintained to reqover taxes paid under such wrongful assessment. p. 66.</p> <p>Same. — Railroads.—Recovery of Taxes Wrongfully Assessed. — Taxes which have been distributed to the township and city cannot be be recovered from the county in an action to recover taxes wrongfully assessed, where such distribution had been made before the claim for the recovery of such taxes had been filed with the board of commissioners, p. 67.</p>

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

<p>Action. — When Debt Not Due. — Attachment.—A suit for a debt not due at .the commencement of the action is permitted by section 925, Burns’ B. S. 1894 (913 Horners’ B. S. 1897), only upon the condition that one or more of specified grounds of attachment be shown and maintained, pp. 87, 88.</p> <p>Pleading. — Landlord and Tenant. — Rents.—Attachment.—A plaintiff cannot complain of the action of the court in overruling a demurrer to an answer to a complaint for rent, directed to the portion of the complaint relating to the rent not due at the commencement of the action, where he admitted that an attachment proceeding brought by him for such rent not yet due could not be maintained, p. 88.</p> <p>Landlord and Tenant. — Lease.—Covenant.—Where a lease contains a covenant on the part of the lessor to make improvements or repairs upon the leased premises, and there has been a breach of the covenant, the lessee may himself make the improvements and recover the expense from the lessor, or, without making them, he may recover from the lessor, ordinarily, an amount representing the consequent diminution in the rental value of the leased property. pp. 88, 89.</p> <p>Same. — Lease.— Counterclaim.— Failure to Repair.— Opinion Evidence.— Where in an action brought against a lessee for rent defendant files a counterclaim alleging the failure of plaintiff to make repairs to the leased premises as contained in the lease, the admission in evidence of the opinion of witnesses as to the amount of damages caused by failure to make such repairs is reversible error, pp. 88, 89.</p>

<p>Appeal.— Time of Taking.— Under the provision of section 645, Burns’ R. S. 1894 (633 Homers’ R. S. 1897), the record in an appealed cause and the errors thereon assigned must be filed in the appellate court within one year from the rendition of the judgment, where appellant is not under legal disability, and the time begins to run from the rendition of the judgment and not its entry.</p>

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

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

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

<p>Practice. — Harmless Error.— Sustaining a demurrer to one of several paragraphs of answer is harmless error, where the same evidence is admissible under other paragraphs, p. ISO.</p> <p>Insurance. — Cancelation of Policy. — Withdrawal.—Mutual Insurance. — Where the by-laws of a mutual fire insurance company which pays all losses by assessments upon the members provide tkat in order to withdraw from such society the member must pay up his past dues, obtain the written consent of the directors thereof and return the policy for cancelation, a policy holder cannot terminate his membership except in the manner provided in the bylaws, and where a member paid up all assessments and requested the secretary to erase his name from the books of the society and the secretary complied with such request and promised- the member that no further assessments should be made Against him, such action will not constitute a cancelation of the policy of insurance and the company is liable for a loss occurring under the policy held by such member, pp. 1S0-1S4.</p> <p>Insurance. — Cancelation of Policy. — Mutual Fire Insurance Company. — The board of directors of a mutual fire insurance company has no authority to order the secretary of the company to cancel a policy in any manner other than that provided in the by-laws. p. 125.</p> <p>Same. —Ansiver.—Cancelation.—It was not error to strike out an allegation in an answer to a complaint on a fire insurance policy that plaintiff regarded his policy in suit canceled and that he had publicly announced that he had withdrawn from the company. p. 125.</p> <p>Same. — Special Finding. — Sufficiency.—Where the special findings in an action on a fire insurance policy state that the policy was issued to plaintiff, that it had not expired, that all dues and assessments were paid, that plaintiff had not assigned the policy nor surrendered it for cancelation, such findings show the policy to be in force although such fact is not stated in so many words, p. 125.</p> <p>Same. — Mutual Fire Insurance Company. — By-Laws.—An old by-law of a mutual insurance company providing that no member could withdraw without first paying all past dues and obtaining the written consent of the board of directors, and a new by-law providing that such withdrawing member shall return his policy to the secretary for cancelation, are not inconsistent with each other. p. 126.</p> <p>Same. — Mutual Fire Insurance Company. — By-Laws.—Amendment.— Special Finding. — An insurance company cannot complain of a finding by the court that an old by-law of the company was in force where the rights of the parties were set out under both the old and the new or amended by-law. p. 127.</p> <p>Same. — Policy.—Household Furniture. — Carpets and bed clothing are covered by the term “household furniture” in a policy of insurance. p. 127.</p> <p>Witness. — Impeachment.—A witness cannot be impeached on an immaterial matter, p. 127.</p> <p>Same. — Examination.—It is not error to sustain an objection to a question asked a witness, if the witness is afterward permitted, without objection, to answer the same question put in a different form. p. 127.</p>

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

<p>Libel. — Damages.—The law presumes general damages as natural and probable consequences of the publication of defamatory language which is libelous per se. p. 135.</p> <p>Same. — Damages.—Where in a civil action for libel the wrong is of such a character that defendant would be liable to a criminal prosecution therefor exemplary damages cannot be assessed, p. 135.</p> <p>Same. — Evidence.—In the trial of a civil action for libel the defendant may, under the general denial, prove plaintiff’s general character to be bad in mitigation of damages, p. 135.</p> <p>Libel. — Failure to Award Nominal Damages. — The appellate court will not reverse a judgment on account of the failure of the jury to award to plaintiff nominal damages in an action for libel where the defamatory matter published is libelous per se and has not been justified by establishing its truth, pp. 185, 136.</p> <p>Instructions. — Failure to Give. — A cause will not be reversed on account of the failure of the court to give additional instructions not requested, where there is no reversible error in the instructions given, p. 137.</p>

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

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

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

<p>Complaint. — Sufficiency.—Personal Injuries. — Negligence.— A complaint against a foundry company for damages for personal injuries ■which alleges that defendant excavated a large molding pit and permitted same to remain open and unsupplied with lights or signals and without guards or railing around it, and that plaintiff in the performance of his work without any carelessness on his part, on account of the darkness and color of the floor of the foundry, walked into the pit and thereby sustained the injuries complained of, is sufficiently specific and states a cause of action against defendant, pp. 151, 15S.</p> <p>Special Verdict. — Contributory Negligence. — The findings in a special verdict in the trial of an action hy an employe against a foundry company for damages for personal injuries received by falling into a molding pit left open and unguarded by defendant, that plaintiff did not look on the ground ahead of him as he approached the pit, and that if he had carefully watched where he was stepping he would not have walked into the pit; that there was a rim from four to ten inches in height around said pit which plaintiff could have seen, if he had been looking down and ahead of him, and that the pit was one of the usual appurtenances of foundries such as defendant’s, will not support the necessary conclusion that plaintiff was fre.e from fault approximately contributing to his injury, pp. 158, 153.</p>

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

<p>Insurance.— Vacancy of Premises.— Pleading.— Condition Subsequent. — A provision in*a policy of fire insurance that if the premises become vacant the policy shall be void is a condition subsequent and need not be negatived in a complaint on such policy, pp. 17C-179.</p> <p>Same. — Notice.—Proof of Loss. — Waiver.—Where an insurance company notified assured that it would not pay a' loss for the reason that the premises insured were unoccupied at the time of the fire, such action constituted a waiver of notice and proof of loss required by the policy, p. 179.</p> <p>Same. — Vacancy of Premises. — A condition in a policy of fire insurance that if the premises become vacant, unoccupied, or uninhabited, the policy shall become void, means that if the house insured should cease to be used as a place of human habitation, or for living purposes, the policy shall become void. pp. 180, 181.</p> <p>Insurance. — Vacancy of Premises. — Where the occupant of a house had stored his household goods in one room of the house with no intention of returning to the house to eat or sleep, but intended to remove the goods as soon as the owner of the house demanded possession thereof, such house was vacant within the meaning of a clause making the policy void if the premises are or shall become vacant, unoccupied, or uninhabited, pp. 181-195.</p>

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

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

<p>Appeal and Error. — Complaint.—Default.—Sufficiency When Tested for First Time on Appeal. — In an appeal from a judgment by default it will not be assumed that anything was proved beyond what is shown in the complaint, and the complaint must be sufficient to have withstood a demurrer for want of sufficient facts as against an assignment on appeal that it does not state facts sufficient to constitute a cause of action, p. 211.</p> <p>Pleading. — Exhibit.—Insurance.—Failure to Sign Policy. — An insurance policy filed as an exhibit in an action thereon controls the averments of the complaint, and where such policy is not signed the complaint is insufficient when tésted for first time on appeal. pp. 211-216.</p> <p>Jurisdiction. — Action Brought in Wrong County. — Waiver.—Under the provision of section 346, Burns’ R. S. 1894 (343, Horner’s R. S. 1897), objection to the jurisdiction of the court on the ground that the action was brought in the wrong county is waived if not made by answer or demurrer. ,p. 218.</p> <p>Repealed Statute. — Practice.—Section 796 of R. S. 1852, pertaining to the rules of pleading and practice in civil cases is repealed by section 1315, Burns’ R. S. 1894 (1291, Homer’s R. S, 1897), Evansville, etc., R.R. Co. v.Spellbring, 1 Ind. App. 167, overruled, pp. 219-222.</p>

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

<p>Practice. — Commissioners’ Court. — Appeals.—An appeal from the commissioners’ court in an action on account is tried de novo in the circuit court, and a motion made in the commissioners’ court to dismiss is no part of the record on appeal, pp. $30, $31.</p> <p>Appeal and Error. — Motion to Dismiss. — Where the reasons for a motion to dismiss a cause do not appear by bill of exceptions, the appellate court cannot review a ruling of the trial court denying the motion, p. $31.</p> <p>Judgment. — Entered by Agreement. — Appeal.—Sufficiency of Complaint. — Where a judgment was entered against defendant by agreement of its attorney in open court, the question of the sufficiency of the complaint cannot thereafter be raised, where no fraud' or collusion is shown, p. $3$.</p> <p>Same. — New Trial. — Evidence.—Judgment by Agreement. — No question is presented in a motion for a new trial for the reason that the finding of the court was not sustained by sufficient evidence and was contrary to law, where the record shows that the court had jurisdiction of the parties and of the subject-matter, and where the judgment was entered by agreement of the parties, no evidence being admitted, pp. $36-$S8.</p> <p>County Commissioners. — Rejected Claims. — The board of county commissioners has power to agree that a judgment be entered against it in the circuit court on appeal from such board rejecting a claim filed for allowance, pp. $38, $39.</p>

<p>Pleading. — Construction.—Where a pleading is uncertain and ambiguous and the theory thereof rendered obscure, it will be construed most strongly against the pleader, and particular expressions will be made to harmonize with the general trend of the meaning of the language of the entire pleading taken as a whole, p. 244.</p> <p>Fraud. — False Representations. — Complaint.—Statute of Frauds.— Allegations in a complaint charging that defendant falsely and fraudulently represented to plaintiff that a certain salt mining company was in a prosperous condition, thereby inducing plaintiff to purchase stock in said company, which was issued direct from the company to plaintiff, amount only to charging defendant with statements made for the purpose of establishing the credit of the said company with intent that it should thereby obtain money, and not being made in writing such representations are within the statute of frauds, section 6634, Burns’ R. S. 1894 (4909, Horner’s R. S. 1897), providing that “no action shall be maintained to charge a person by reason of any representation made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representations be made in writing and signed by the party to be charged thereby or by some person thereunto by him legally authorized.” pp. 244-248.</p> <p>Statutory Construction. — Statute of Frauds. — The word “person” as used in the statute of frauds, section 6634, Burns’ R. S. 1894 (4909, Horner’s R. S. 1897), is a generic term and includes both natural and artificial persons, p. 247.</p>

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

<p>Husband and Wife. — Tenants by Entireties. — Action for Damages. ' —Parties.—Natural Qas Explosion. — A husband may maintain an action for damages to a storeroom of which he held possession, ■caused by a natural gas explosion, without joining his wife, where the premises were held by him and his wife as tenants by entireties. pp. BBS-255.</p> <p>Abatement and Revival. — Parties.—A defect of parties plaintiff, such defect not being apparent on the face of the complaint, can be assailed only by a plea in abatement, p. 255.</p>

<p>Decedents’ Estates. — Claim,.—Form Of. — The statement of a claim filed against a decedent’s estate need not be in any particular form, but is sufficient if it apprises the administrator or executor of the nature of the claim and the amount demanded, and shows enough to bar another action for the same demand, p. 259.</p> <p>Statute of Frauds. — Promise to Pay the Debt of Another. — To make the promise to pay the debt of another collateral and bring it within the statute of frauds, section 6629, Burns’ R. S. 1894 (4904, Horner’s R. S. 1897), it must be a promise to answer to the creditor for the debt, default, or miscarriage of a third person who is liable therefor and continues liable; the statute has no application where the original debtor is discharged and the promisor is substituted as the debtor, pp. 259, 260.</p> <p>Same. — Promise to Pay the Debt of Another. — Consideration.—Where a promise is made to a debtor to pay his debt to a third person, upon a sufficient consideration passing between the debtor and the promisor, an action may be maintained on the promise without the discharge of the original debtor, p. 260.</p> <p>Evidence. — Variance.—Decedents' Estates.— Claims.— There was no material variance between the statement of a claim filed against a decedent’s estate and the proof thereof, where the statement showed a balance of a certain amount for opera chairs of the date of the original purchase, and the proof showed that the goods were purchased by another and decedent had assumed the payment of such balance, pp. 261, 262.</p>

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

<p>Bills and Notes. — Waiver of Protest and Nonpayment. — Indorser.— The right of an indorser of a promissory note governed by the law merchant to require presentment for payment and notice of nonpayment may be waived by the terms of the n6te. p. 269.</p> <p>Same. — Notice of Nonpayment. — Inability of Indorser. — The indorser of a promissory note governed by the law merchant is not entitled to presentment for payment or notice of nonpayment in order to fix his liability, when by the terms of the note such notice is waived, p. 269.</p> <p>Same. — Indorser May Be Sued Without Joining the Maker. — The holder of a promissory note governed by the law merchant may sue the indorser without joining the maker as a defendant, and without having previously sued the maker, p. 270.</p> <p>Same. — Indorser.—Rights and Remedies. — The indorser of a promissory note may, by paying the note in the hands of the indorsee, prosecute an action on the note against the maker; and the fact that the maker had become insolvent and had died after the maturity of the note and before suit was brought thereon against such indorser cannot be made available by the indorser as a defense to such action, p. 270.</p> <p>Official Bonds. — Breach Of. — Action On. — It is not enough in an action on an official bond to show merely a breach of official duty, but it must be shown that the relator had sustained damages by reason of the breach thereof, pp. 270, 271.</p> <p>Evidence. — Admissibility.—Objection.— It is not error to overrule an objection to the admission of certain evidence as a whole where part of the evidence objected to was admissible, p. 271.</p> <p>Same. — Objection to Admission Of. — An objection to the admission of evidence for the reason that same was “irrelevant, immaterial, and incompetent” raises no question for review on appeal, p. 271.</p>

<p>Attorneys. — Dissolution of Partnership. — The acceptance of the office of circuit judge by a member of a law firm effects a dissolution of such firm, and it is immaterial as affecting the question of dissolution, whether or not the other member consented to such withdrawal, p. 276.</p> <p>Same. — Division of Fees after Dissolution of Firm.- — Where a member of a law firm has severed his connection with the firm by accepting the office of circuit judge, a contract of employment of such firm in pending business is of a divisible nature, under which a recovery may be had for services of which the client has already had the benefit, but such person can have no interest in any fees for services rendered by the remaining member of the firm in concluding that particular business, p. 280.</p>

<p>Taxation. — Collection of Taxes. — County Treasurer. — Fees.—Under the provisions of section 5928, R. S. 1881, relative to the fees of a county treasurer for the collection of delinquent taxes, a county treasurer whose term of office had expired before certain delinquent taxes were paid, cannot maintain an action against the board of commissioners of the county for the compensation provided in said statute for the collection of such taxes, although such officer did the greater part of the work which resulted in the collection thereof.</p>

<p>Former Adjudication. — Counterclaim,.—Where it is shown in an action on account that plaintiff had appeared in an action against him by defendant on a promissory note and filed answer and counterclaim setting up the same matter embraced in the account in suit and judgment was rendered for the full amount of the note, the issue thus presented, whether fully determined or not, amounts to an adjudication, and constitutes a bar to the subsequent action. pp. 285-287.</p> <p>Special Verdict. — Must be Considered as a Whole. — A special verdict must be considered as a whole, not in detached portions, p. 288.</p>

<p>Gravel Roads. — Construction.—Liability of Superintendent. — The act of 1889 (Acts 1889, p. 433), does not authorize an action to be brought against the superintendent of construction of free gravel roads for material used in the construction thereof, pp. 290-292.</p> <p>Appeal and Error.— Record. — Jurisdiction. — Default. — Where judgment was rendered against defendant on default the record must show service of process at the time of such default, p. 292.</p>

<p>Banks and Banking. — Principal and Agent. — Subagent. — Complaint. — Where a depositor authorized a bank to honor checks drawn on his deposit by his agent and general manager, recovery may be had by the bank against such depositor for overdrafts, under an allegation in the complaint that the checks were drawn by such agent and general manager, notwithstanding the proof showed that part of said checks were drawn by a subagent, where the evidence further showed that such checks were drawn by direction of the agent, by and with the consent of the depositor, and that the bank before honoring such checks was informed by the agent and general manager of such arrangement.</p>

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

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

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

<p>Criminal Law. — Affidavit and Information.— Corporations.— Section. 1754, Bums’ R. S. 1894, requiring that in a criminal prosecution against a corporation a copy of the indictment or information shall be served and returned with the summons, does not require service of the affidavit upon which an information is based, pp. 315-317.</p> <p>Same. — Under What Statute a Corporation is Indictable for Maintaining Nuisance. — For maintaining a public nuisance a corporation is indictable only by virtue of section 1970, Burns’ R. S. 1894; and upon conviction is amenable to punishment as provided in section 2154, Bums’ R. S. 1894. pp. 318-32G.</p> <p>Nuisance. — Discharging Offal Into River. — Corporation.—Where a corporation by the operation of a factory discharges offal into a river, so as to affect injuriously people along the river, such corporation maintains a nuisance within the meaning of section 2153, Burns’ R. S. 1894. pp. 326-330.</p>

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

<p>Special Verdict. — Negligence.—Theory.— Burden of Proof.— The burden is upon the plaintiff, in an action for damages for personal injuries based upon defendant’s negligence, to show in the special verdict a right to recover on some consistent theory, and every fact necessary to make out a case upon such theory must appear in the verdict; the silence of the verdict in ahy material respect amounts, as to such matter, to a finding against plaintiff.</p>

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

<p>Nuisance.. — Immaterial Averment. — Proof.—Criminal Law. — Where an affidavit charging a public nuisance in conducting a flour mill in a populous portion of the city, alleged that defendant erected and maintained a smoke-stack of insufficient height to carry away the soot and smoke, such allegation, although unnecessary, and not a material averment of the affidavit, must be proved as charged.</p>

<p>Township Trustee. — Unauthorized Contracts. — Liability of. Township. — The failure of a township trustee to observe the requirements of the law relative to incurring an indebtedness on the part of the township will prevent a recovery on such contract, but an action may be maintained against the township for the benefit conferred on it through the performance of the contract, pp. 3GS, SG3.</p> <p>Practice. — Harmless Error. — In an action against a township trustee and his bondsmen for money alleged to have been borrowed by such trustee without authority of law and appropriated to his own private use, no error was committed in sustaining a demurrer to an answer alleging that the money so borrowed was used in the construction of a schoolhouse, as such allegation was provable under the general issue, pp. 36S, 364.. '</p>

<p>Decedents’ Estates. — Claims Against. — Form Of. — A claim against a decedent’s estate need not be in the form of a regularly drafted complaint, but a succinct and definite statement showing prima facie indebtedness of the estate to the claimant, due, or to become due, and setting. forth the demand with sufficient clearness to apprise the defendant of the nature of the claim, and to bar another action for the same demand, is sufficient, p. 366.</p> <p>Contracts. — Promise to Malee Provision by Will. — A promise upon a valuable consideration to make provision by will is a valid contract, and an action will lie for its breach, p. 366.</p> <p>Decedents’ Estates. — Promise of Decedent to Pay Certain Sum of Money at Time of Death. — An express promise to pay a certain sum of money at or after the death of promisor, if founded upon a valuable consideration, may be enforced after his death against his estate, pp. 366, 367. ‘</p> <p>Trusts. — May be Created by Parol. — A trust in personal property-may be created and established by parol, p. 367.</p> <p>Same. — Transfer of Personal Property by Parol. — Personal property may be, by parol, transferred by the owner thereof to another in trust for a third person, p. 367.</p> <p>Decedents’ Estates. — Claims.—Demand.—No demand of the administrator was necessary before filing a claim against a decedent’s estate for money which decedent received and promised to pay claimant at or after promisor’s death, p. 367.</p> <p>Appeal and Error. — Record.—Instructions.—Instructions not set out in the record cannot be considered on appeal, p. 367.</p> <p>Same. — Bill of Exceptions. — The bill of exceptions must be filed in the clerk’s office after being signed by the judge, p. 368.</p>

<p>Negligence. — Defective Street.— Personal Injuries.— Sufficiency of ^Complaint — Municipal Corporations. — A complaint alleging that while plaintiff was walking home on a street in general use by the public she stepped into an excavation or hole in the portion of such street generally used by pedestrians and was injured without her fault, states a good cause of action against defendant city, where it ig ■ alleged that such holes or excavations were dug more than sixty days prior to the injury, and that the city had notice of them at the time they were dug but that plaintiff had no knowledge of the existence thereof, pp. 369, 370.</p> <p>Municipal Coepobations. — Streets.— Where a public highway is brought within the corporate limits of a city and left open for public travel the city is bound to keep such highway in reasonably safe condition for travel, whether such road was laid out and opened by the board of county commissioners or had become a public highway by user. pp. 370, 371.</p> <p>Same — Streets.—Repairs.—When a street within the limits of a city is in common use by the people, it is the duty of the city to keep it in a reasonably safe condition for ordinary travel whether it is an improved street or not. pp. 371, 372.</p> <p>Same. — Streets.—Sidewalks:—A sidewalk is a part of a street, and the authority of a city over a street extends over the sidewalk as a part of the street, p. 372.</p> <p>Evidence. — Weight Of. — The verdict of a jury will not be disturbed on the ground of conflicting evidence where there is some evidence to support it. p. 372.</p> <p>Municipal Corporations. — Defective Streets. — Notice of Defect.— Actual notice on the part of a city of a defective street or sidewalk is not necessary where the defect has existed for such a length of time that with reasonable diligence it might have been known. p. 373.</p> <p>Same. — Defective Streets. — Knowledge of Defect. — Contributory Negligence. — The fact that a person injured on a defective sidewalk had knowledge of the defect will not deprive him of his right of action for such injury, but such knowledge, together with all other facts bearing upon the question, is to be considered by the jury in determining whether such person was guilty of contributory negligence. pp. 373, 37h.</p> <p>Highways. — When Road Becomes Public Highway by Use. — Where a highway has been used by the public for more than twenty years it becomes a lawfully existing highway, and the right of the public to use it becomes fixed, p. 37A</p> <p>Damages. — Amount Of. — Discretion- of Jury. — A. jury has a wide discretion in awarding damages, and a verdict will not as a general rule be disturbed on account of excessive damages, p. 375.</p> <p>Judges. — Misconduct of During Trial. — Harmless Error. — A statement by the court in the trial of a cause, in the presence of the jury, referring to absent witnesses, “I do not feel disposed to keep this jury waiting at the expense of the county to suit the convenience of saloon-keepers and gentlemen of elegant leisure,” is not reversible error, pp. 375, 376.</p>

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

<p>Negligence. — Street Railways. — Injury of Passenger. — Presumption of Negligence. — The fact that a person was injured while a passenger on a street railway does not raise the presumption of negligence on the part of the railway company, p. 885.</p> <p>Same. — Personal Injuries. — Street Railways.— Proximate Cause.— Carrying a passenger on a street car beyond his station is not the proximate cause of any events occurring at another place where he attempted to alight, resulting in injury to such passenger, p. 886.</p> <p>Same. — Personal Injuries. — Street Railways. — Special Verdict — Facts found in a special verdict in an action against a street railway company for injuries to a passenger while attempting to alight from a car, to the effect that the passenger failed to give notice in time to have the car stopped where he desired to alight, and, ' expecting the car to stop, in attempting to change his position from the platform to the step below, preparatory to alighting, he was thrown from the car and injured'by the gradual increase in speed, do not show negligence on the part of the defendant railway company. pp. 886-889.</p>

<p>Intoxicating- Liquors.— Permitting Persons to go in Saloon on Days When Sale of Liquor is Prohibited. — Nicholson Law. — In a prosecution under section 5323c, Horner’s R. S. 1897 (Acts 1895, p. 248), making it unlawful for the proprietor of a saloon to permit any person or persons other than members of his family to go into the room and place where intoxicating liquors'are sold upon such days or hours when the sale of such liquors is prohibited by law, evidence that the bartender who was in charge of the saloon during the absence of defendant from the city, entered the saloon on Sunday during such absence, and against the positive instructions of defendant not to enter the saloon on days and hours prohibited by law, is not sufficient to justify a conviction of the proprietor for such act of his bartender.</p>

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

<p>Bills and Notes. — Breach of Condition.— Waiver.— Pleading.— Where a complaint on a promissory note conditioned that payee erect a factory of certain dimensions, averred a breach of condition therein, and counted on a waiver thereof by payer based upon an extension of time of payment, a demurrer is properly overruled to an answer to such complaint which avers that the proposition under which the note was signed had been withdrawn and a new contract entered into; that the payee of the note had received the full amount of donation agreed upon and had no further interest in the note, and that such note was indorsed to plaintiffs without consideration, all of which facts were unknown to defendant at the time the promise relied upon in the complaint was made. pp. 406-410.</p> <p>Contracts. — Waiver.—A person cannot he bound by a waiver of his rights unless such waiver is made distinctly, and with a full knowledge of the rights which he intends to waive, pp. 410-420.</p>

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

<p>Street Improvements. — Foreclosure of Assessment Liens. — Redemption from Sale. — Recovery of Redemption Money Paid. — Where a judgment foreclosing an assessment lien for street improvements is set aside as void, money paid by the property owner in redeeming the property from such foreclosure sale pending the action to set aside the judgment was not a voluntary payment, and may be recovered.</p>

<p>Action. — Demand.—Where money is due on a contract, the suit therefor constitutes a sufficient demand, p. 481.</p> <p>Complaint. — Sufficiency After Verdict. — A complaint ’ will be held sufficient after verdict, unless the averment of an essential fact has been omitted, p. 4^8.</p> <p>Same. — When Attacked for First Time on Appeal. — Where enough facts are stated in a complaint to bar another action for the same cause it will be held sufficient against an attack for the first time in the Appellate Court, p. 4SS.</p> <p>Evidence. — Weight Of. — A verdict will not be set aside on account of conflicting evidence where there was some evidence to sustain the verdict, p. 43%-</p>

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

<p>Removal of Causes.— Amount in Controversy. — Jurisdiction.— Under the provision of the Federal statute that a cause may be removed from a state court to the Federal court where the controversy is between citizens of different states and the amount involved exceeds $2,000.00, the court, in determining whether a cause is removable under such statute will look both to the complaint and petition for removal, and if the amount demanded in the complaint is less than $2,000.00 the cause is not removable, notwithstanding it is alleged in the body of the complaint that plaintiff’s damage for which he seeks relief is $10,000.00. pp. 442, 4V¡.</p> <p>Plea in Abatement. — Amendment of Complaint. — A plea in abatement alleging that after filing a complaint, and before the return day, plaintiff obtained possession of the complaint and changed the amount of the prayer therein from $10,000.00 to $1,999.99, and that the alteration was made for the express purpose of preventing the removal of the cause to the Federal court, is properly overruled, as plaintiff may amend his complaint without leave of court before answer, pp. 443, 444.</p> <p>Negligence. — Railroads.—Pleading.—To constitute negligence on the part of a railway company in the operation of its road, facts must be stated which affirmatively show that the accident relied upon resulted from the want of some precaution which the railway company ought to have taken, pp. 447, 448.</p> <p>Same.— Complaint.— Sufficiency.— Railroads. — Horse Frightened at Hand-car. — A complaint against a railway company for damages for personal injuries which alleges that defendant’s servants were running a hand-car on defendant’s track, approaching a highway at great speed, and that as they approached the highway they saw plaintiff in his buggy near the crossing, his horse badly frightened and him and his companions in imminent danger; and with full knowledge of such facts continued to run the hand-car nearer to plaintiff, and made no effort to stop the car or check its speed, and that if they had done so plaintiff could have managed his horse and averted the injuries complained of, charges actionable negligence on the part of defendant, pp. 450-458.</p> <p>Practice. — Motion to Strike Out Part of Pleading. — Harmless Error. —It is harmless error to overrule a motion to strike out parts of a pleading, pp. 452, 453.</p> <p>Evidence. — Sufficiency of to Sustain Verdict. — The appellate tribunal will not disturb a verdict of a jury upon the mere weight of the evidence, but where there is no evidence to support the verdict upon a material question in issue, the judgment will be reversed. pp. 453-457.</p> <p>Same. — Opinion of Witness. — In the trial of a cause against a railroad company for damages to plaintiff caused by his horse becoming frightened at a hand-car on defendant’s track, it was improper to ask plaintiff as a witness whether he could have turned his horse and thus averted the injury if the highway had not been obstructed with cross-ties, and whether he could have managed and controlled the horse had defendant stopped the hand-car, as such questions called for the opinion of the witness, pp. 457-434.</p>

<p>Contracts. — Indexing Records.— County Commissioners.— A contract entered into by the county commissioners with the recorder to reindex the deed and mortgage records for the sum of four cents for each entry of .deed and mortgage, when construed with sections 5938 et seq., Horner’s R. S. 1897, providing the manner in which such work shall be done, is held to mean four cents for each instrument indexed, and not four cents for each entry.</p>

<p>Notaries. — Power to Administer Oaths. — Judicial Notice. — The power to administer oaths is not conferred upon a notary public by common law, but by legislative enactment, and courts of this State cannot take judicial notice of legislative enactments of other states conferring such powers., pp. JflO, Jfll.</p> <p>Same. — Jurisdiction.—Affidavit.—Where by the caption of an affidavit it appears to have been sworn to in Marion county, Indiana, but by the certificate- of the notary that it was sworn to in Hamilton county, Ohio, the place of such officer’s jurisdiction, it will be presumed that such officer acted according to law and made the affidavit within his jurisdiction, pp. Jfll, Jfi2.</p> <p>Garnishment.— Attachment. — Affidavits.—Where affidavits in attachment and garnishment are held insufficient no further proceedings can be had in such case until sufficient affidavits are filed, p. Jfl%.</p> <p>Same. — Attachment.—Affidavits.—Where the court dismissed a cause in attachment and garnishment on account of the insufficiency of the affidavits on which such proceeding was based, additional affidavits filed with the clerk while the court had under consideration the original affidavits are not properly á part of the record on appeal, pp. Jfl%-lflh.</p>

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

<p>Mechanic's Lien. — Railroads.—Under the provisions of section 7265, Bums’ R. S. 1894, that “all persons who shall perform work or labor in the way of grading, building embankments, making excavations 'for the track, building bridges, trestle work, works of masonry, fencing, or any other structure, or who shall perform work of any kind in the construction or repair of any railroad, or any part thereof, etc.,” shall be entitled to a lien, a person performing work and labor in digging a well for a railroad company in its stock yards along the right of way owned and operated by the railroad company may hold a lien against the railroad for the value of such work.</p>

<p>Appeal and Error.— Jurisdiction. — Under the provision of section 1336, Burns’ B. S. 1894, that the Appellate Court has no jurisdiction of causes originating before a justice of the peace in which the amount in controversy exclusive of interest and costs does not exceed fifty dollars, the Appellate Court in determining the amount in controversy is not limited to the prayer of the complaint, but may examine the entire record for such purpose, and the fact that plaintiff amended his complaint in the circuit court, increasing his demand to more than fifty dollars will not give the Appellate Court jurisdiction where the evidence of the plaintiff on the trial showed the amount due him to be less than fifty dollars.</p>

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

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

<p>Bonds. — Principal and Surety. — Discharge of Surety. — Guardian and Ward. — -The only way in which a surety can be released from liability on a guardian’s bond is by complying with the provisions of section 2517, Horner’s R. S. 1897. pp. 525-535.</p> <p>Same. — Filing New Bond. — Release of Surety on Original Bond.— Guardian and Ward. — The filing of a subsequent bond by a guardian before receiving pension money due his ward will not release the surety on the original bond given by such guardian at the time of his appointment, as such second bond was an additionalbond, and cumulative in its legal character, pp. 525-535.</p> <p>Same. — Guardian and Ward. — Additional Bond. — Order of Court.— The fact that the court used the words “new bond” in its order showing the filing of a second bond by a guardian will not 'change the legal status of the parties or the binding effect of either bond. p. 535.</p>

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

<p>Contracts. — Warranty.■—Sales of Machinery. — Where’a machine is sold under a warranty to be well made and to do a reasonable amount of work, the purchaser could not abandon the contract and insist upon the warranty, where the contract provided that if the machine would not bear such warranty, immediate notice should be given the seller, and if it could not be made to fill the warranty it was to be returned by the purchaser to the place where he received it and another substituted therefor, or money or notes returned. pp. 557-559.</p> <p>Same. — Warranty.—Where a corn husker was sold under a contract warranting it to do good work, providing “that if the machine will not bear the above warranty, after a trial of two days immediate notice shall be given the Keystone Mfg. Co.,” etc., and the purchaser retained said machine for ten days, husking corn, after having been informed by the agent that he could not make it work, the purchaser lost his right to set up the warranty, where the contract further provided that the continued use of the machine after the expiration of the time named in the warranty would be evidence of the fulfillment of the warranty, pp. 559, 560.</p> <p>Same.— Preliminary Negotiations.— Preliminary negotiations of a sale are merged into a written contract of sale entered into by the parties, p. 560.</p> <p>Same. — Sale of Machinery. — Instruction.—In the trial of an action for the purchase price of a corn husker, an instruction to the j ury to the effect that plaintiff did not agree to teach defendants how to run the machine, and if it failed to operate properly on account of the unskilfulness with which it was handled by defendants that plaintiff should recover, etc., was properly given where the contract provided that if the machine would nor bear the warranty to do good work, after two days’ trial, immediate notice should be given plaintiff who would send a competent person to remedy the defect, and the defendants’ skill in the management of the machine was raised by the evidence, pp. 560, 561.</p>

<p>Former Adjudication. — Answer.—Sufficiency.—An answer to a complaint alleging that prior to the commencement of such action plaintiff filed a complaint against the same parties alleging the same facts as in the present complaint, to which complaint defendant’s demurrer was sustained on account of insufficiency of facts, and plaintiff refusing to plead further judgment was rendered for defendant which was unappealed from, and is still in full force and effect, is sufficient to show a former adjudication in bar of the action, where it is shown that the court had jurisdiction of the parties and of the subject-matter of the action, pp. 56%, 5G3.</p> <p>Appeal and Error . — Longhand Manuscript of Evidence. — Row Made Part of Record. — The longhand manuscript of the evidence cannot become a part of the record without being incorporated in a bill of exceptions, and, after being signed by the judge, filed with the clerk of the court, p. 564-</p>

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

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

<p>Evidence. — Weight Of. — Special Finding. — Where there is any evidence supporting the material facts of a special finding, the court, will sustain the finding without weighing the evidence, pp. 602,603.</p> <p>Contracts. — Intoxicating Liquors. — Enforcement of Illegal Contracts. — The law will not assist in enforcing the collection of an account for beer sold to be retailed by the purchaser without license, where the seller knew that the purchaser had no license to. sell, and that it was to he disposed of in violation of law. p. 80S.</p>

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

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

<p>From the De Kalb Circuit Court.</p>

<p>Arbitration and Award. — Action on Award.— Complaint. — The material allegations of a complaint to recover an award made by an arbitrator are, the existence of the differences between the parties to the action; an agreement to submit the matters in dispute to arbitration; the substance of the agreement, if oral, and if written, the agreement in full; that an award was made in accordance with the terms of submission; the substance of the award, if oral, the award itself if written, and that defendant failed to abide by or perform the conditions of the award, p. 621.</p> <p>Complaint. — Exhibit.—An exhibit filed with a complaint does not control or affect»the complaint in any manner unless the complaint is founded upon the exhibit, p. 621.</p> <p>Arbitration and Award. — Arbitrator Cannot Change Award.— When an award has been made and published the arbitrator becomes functus officio, and he cannot thereafter change the award, pp. 621, 622.</p> <p>Same. — Revocation of Submission. — A written submission of a cause to arbitration requires a written revocation, and cannot be revoked orally, p. 623.</p>

<p>Work and Labor. — Implied Promise to Pay For. — When an Attorney May Bind Client in Employment Of. — A court reporter may recover for services rendered defendant in furnishing him copies of evidence during a trial in which he was acting as court reporter where such copies were furnished at the request of defendant’s attorney, and used in the conduct of such trial with the knowledge of defendant, although there was no express promise to pay for such services, pp. 624-626. ■ .</p> <p>Complaint. — Variance. — Recovery may be had on proof of an implied promise to pay, although the complaint avers an express promise, p. 626.</p>

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

<p>Appeal. — Final Judgment. — Appeal Will Not Lie from Order of Court Vacating a Judgment. — An order of court vacating a judgment rendered at the last preceding term of court is not a final judgment within the meaning of section 644, Burns’ K. S. 1894 (633, Homer’s R. S. 1897), from which an appeal will lie.</p>

<p>Evidence. — Partnership. — Declaration of Partner.— Statements made by one partner in the absence of the other in the negotiation of a loan for the partnership business are admissible in evidence in an action for the collection of the money so loaned.</p>

<p>Coroners. — Inquests.—-When a coroner has held an inquest on view of a body, and returned a verdict, and filed same with the clerk of the circuit court as provided by statute, he cannot afterward upon his own motion or upon application of friends of the deceased hold a second inquest, and bind the county for the value of the services of a surgeon who made an examination of the body at such second inquest, pp. 634-650.</p> <p>Special Verdict.— Motion for Judgment.— Practice.— Where a special verdict has been returned it becomes the duty of the court to render judgment in favor of the party entitled thereto without any formal motion, p. 650.</p>

<p>Bills and Notes. — Consideration. — Defense.—The fact that the seller charged exorbitant and excessive prices for merchandise for which a promissory note was given will not, in the absence of fraud, constitute a defense to an action on the note. pp. 653, 653.</p> <p>Same. — Agreement to Accept a Less Sum than Amount Due. — Consideration. — An agreement made by the payee of a promissory note past due to accept a less sum than the amount due thereon is not binding where there was no valid consideration for such agreement. p. 653.</p> <p>Same. — Part Payment. — -Where the payer sent the payee of a prpmissory note a check for part of the sum due, with the words in the body of the check “In full of all notes and obligations to date,” and accompanied same by a letter stating that he-made such tender for several reasons, the acceptance of the check acknowledging the receipt thereof on account did not operate as a discharge of the entire debt. 65J^-663.</p>

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

<p>Evidence. — Weight Of. — Where a verdict is returned on conflicting evidence the Appellate Court will not weigh the evidence for the purpose of determining the preponderance thereof, p. 664,.</p> <p>S.4HE. — Natural Gas Contract. — In an action to recover for the price of gas furnished defendant, it was error to admit in evidence, in defense thereof, the testimony of witnesses who received gas from the same main as defendant, to the effect that they had an insufficient supply of gas during the time in question, without showing that their connections were of the same or of a similar character as that of defendant, where it was defendant’s duty under the contract to conduct the gas from the main to his residence, pp. G646G7.</p> <p>Evidence. — Admission.—Objection.—Waiver.—Where a party objects to the admission of evidence and afterward introduces evidence of the same character in rebuttal thereof, he does not thereby waive his objection, pp. 667, 668.</p>

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

<p>County Commissioners. — Joint Session. — Notice of Meeting. — It is not provided by statute how notice shall be given to convene boards of commissioners of adjoining counties in joint session, but it will be presumed where such boards met that some hind of notice was given, pp. 674, 675-</p> <p>Bridges. — Construction of on County IAnes. — Power of County Commissioners. — Boards of county commissioners have no powers to construct bridges across a stream on the boundary line between counties except such as are expressly or impliedly granted by statute, and contracts entered into with boards of commissioners of adjoining counties for the construction of such bridges which are not in substantial compliance with the statute providing therefor, are void. pp. 675, 676.</p> <p>Same. — Construction of on County Line. — Void Contract. — Recovery. —Quantum Meruit. — Where boards of county commissioners of adjoining counties have failed to comply with the statute in the construction of a bridge across a stream on the boundary line of such counties, the contractor cannot recover on the quantum meruit for the construction thereof, although the counties accepted the bridge, and the same was used by the citizens thereof, pp. 676-679.</p>

<p>Costs.— Judgment Less Than Fifty Dollars.— Mechanic’s Lien.— Where it is shown by the finding and judgment of the circuit court in an action to foreclose a mechanic’s lien, that plaintiff abandoned the lien, and judgment was rendered on account only for a sum less than $50.00, the cost of such action should he taxed against plaintiff under the provision of section 600, Burns’ R. S. 1894 (591, Homer’s R. S. 1897), that, in actions for money demands on contract commenced in the circuit or superior courts if the plaintiff recover less than $50.00 exclusive of costs, he shall pay costs, etc.</p>

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

<p>Appeal and Error. — Assignment of Error. — Failure to Discuss.— Waiver. — Assignments of error which are not discussed are deemed waived, p. 688.</p> <p>Appeal and Error,. — Evidence.—Record.—The longhand manuscript of the evidence must be filed in the clerk’s office before it is embodied in the bill of exceptions and signed by the judge, pp. 688-690.</p>

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

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

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