Volume 2 — Indiana Appellate Court Reports

<p>Replevin Bond. — Action Upon. — Nominal Damages, When only Recoverable. —Levy Upon Mortgaged Property. — Replevin of by Mortgagee. — Failureof Mortgagees Relieve Property. — Attorney’s Fee. — A. executed a chattel mortgage to B. to secure the payment of certain promissory notes. The notes not being paid at maturity, A. delivered the mortgaged property to B. at an agreed valuation, which was its fair cash value, and which left a balance still due and unpaid. D. thereafter obtained a judgment against A. , and levied upon a portion of the property which had been delivered to B. B. replevied the property, giving the usual replevin bond. In the trial of the replevin case, return of the property was adjudged to D. B, did not return the property, hut sold it, receiving therefor its fair cash value, which was less than the balance due to him from A.</p> <p>Held, in an action by D. on the replevin bond, that the right to the possession of the property only, and not the title, having been in issue in the replevin suit, B. might prove in mitigation of damages, for his failure to return the property, that he held a valid, unsatisfied, and prior chattel mortgage lien on the property.</p> <p>Held, also, that the plaintiff was not entitled to recover from the defendant his attorney’s fee in the replevin suit.</p> <p>Held, also, that the mortgagor’s equity of redemption in the property mortgaged by him to B.,. being less than the amount yet. unpaid on the mortgage indebtedness, D. could only recover nominal damages against B.</p> <p>Bepi/evih. — What Judgment m Determines. — When Title Not im Issue. — Presumption. — The action of replevin is primarily possessory in its character, and unless the title to property is distinctively put in issue, a judgment in such action determines nothing beyond the right of possession. Where it is not shown by the record that the title was in issue, the presumption will be that it was not in issue.</p>

<p>Teust.—Express Trust in Land.—Parol Agreement to Sold Proceeds of Sale of Land in Trust.—Consideration.—Inchoate Interest.-. -While an express trust in land can not be established by parol, a parol agreement to hold the proceeds of a sale of the land, in trust for another, is valid, if based upon a sufficient consideration, and the conveyance, by a wife, of her inchoate interest is sufficient consideration to establish such a trust.</p> <p>'Same.—Parol Agreement of Mortgagee to Sold Part of Proceeds of Sale of Mortgaged Lands in Trust for Wife.—Inchoate Interest.—Statute of Frauds.—Fraud.—Where the wife joined with her husband in executing a mortgage upon his real estate, as security to an existing creditor of the husband, and the wife joined therein only upon the parol agreement of the mortgagee that in consideration of her signing the mortgage with her husband, and of her agreement then made, that she would not appear to or resist a foreclosure of the mortgage, and that she would not redeem from the sale to be made on the foreclosure of the mortgage, he (the mortgagee) would take and foreclose the mortgage, and purchase the lands at the foreclosure sale, and would hold one-third of the land for her, and would protect her inchoate interest therein, and, as soon as he could sell the land, would pay her one-third of whatever should be realized from the sale of the lands,'—the mortgage as executed in connection with the parol agreement was not the creation of a trust in or concerning lands within the meaning of either of sections 3391 or 6831, R. S. 1894, nor was it a trust “in goods or things in action,” as contemplated by section 6631, supra. The only thing the mortgagee was to do was to hold for, and pay to, the wife one-third of the proceeds of the sale, which was not an express trust in real estate, but in the proceeds of sale; and where the original agreement itself relates to the proceeds there need be no other promise after the sale is made. To establish such trust it is not necessary that the transaction should be tainted with fraud, but it is sufficient to bring the facts within the rule that (if the transaction would result in fraud upon the wife) the statute of frauds and trusts can not be used as an instrument to work a fraud.</p> <p>Same.—Devisee Acquiring Property Upon Which a Trust is Impressed.— Liability for.—In such case, where the mortgagee had purchased the lands at sheriff’s sale, according to agreement, but died testate before receiving the deed therefor, having devised all such lands to his wife, who obtained a sheriff’s deed therefor, with full knowledge of the trust, and sold the same, receiving therefor $8,000, and held the same until her death, although often requested to pay to the beneficiary the one-third of the purchase-price, which she neglected to do, the estate of the mortgagee’s wife will be held liable for the trust interest.</p> <p>Same.—Statute of Limitations.—Continuing or Executory Trust.—The trust being a continuing or executory one, the statute did not begin to run, even after the sale, until there was a disavowal of ¿he trust or a refusal to perform upon proper demands, and the action being commenced within less than four years after the sale, it was not barred.</p> <p>Same.—Mes Adjudicata.—Foreclosure of Mortgage.—■Default.—The fact that the wife, the cestui que trust, was made a party to the foreclosure proceeding, was duly served with process, and made default,, would not amount to res adjudicata so as to debar a suit on the trust agreement, where the default was a part of the special agreement creating the trust.</p> <p>Same.—Evidence.—Decedent's Estate.—Permitting Claimant to Testify. —Abuse of Discretion.—Where plaintiff’s two daughters, competent witnesses, had, as the court determined, made out a prima facie case for plaintiff, it was not error, under such circumstances, for the court, of its own motion, to call the plaintiff to the witness stand and permit her to give her version of the transaction in relation to the trust, the suit being a claim against a decedent’s estate.</p>

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

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

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

<p>Justice OE the Peace. — Jurisdiction.—Landlord and Tenant. — Leased Premises. — Action by Tenant to Secover Possession. — Circuit Court Has Exclusive Jurisdiction. — Justices oí the peace have no authority to hear and determine suits brought by tenants against a landlord, or any one else, to recover the possession of premises under a lease. A leasehold constitutes a “ valid subsisting interest in real property,” within the meaning of section 1050, B. S. 1881, and all actions for the recovery thereof belong exclusively to the circuit court. Where the possession of the prem- ■ ises is the real thing in controversy, and the claim for damages is purely incidental, the subject-matter of the action is wholly without the jurisdiction of the justice, and his acts respecting it are void.</p> <p>Same. — Appeal From. — When Can Not Confer Jurisdiction. — Where a justice of the peace has no authority to try a case, an appeal from his judgment can confer no jurisdiction upon the circuit court.</p> <p>Sam:e. — Absence of Jurisdiction. — Appeal to Circuit Court. — Amendment of Pleadings.— When Jurisdiction Can Not be Acquired Thereby. — Where a case which a justice of the peace had no authority to try is appealed to the circuit court, the latter court can not acquire jurisdiction by permitting the pleadings to be amended in the absence of one of the parties, and without his consent. A party is not required to attend court to protest against unauthorized acts, and his absence can not be construed as consenting thereto.</p> <p>Jurisdiction. — Absence of. — Amendment of Pleadings. — The exercise of jurisdiction is necessarily involved in settling issues and permitting amendments to pleadings in pending suits, and a court which has no jurisdiction to hear and determine the subject-matter of an action is, as a rule, utterly destitute of power to settle issues or permit amendments to the pleadings in such action.</p>

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

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

<p>Pleading. — Exhibits.—Muniments of Title. — Lease.—A written instrument which is not the foundation of an action, but is only evidence of the title asserted, need not be set out with the complaint. Such are muniments of title; as a lease, in an action for possession brought by the lessee.</p> <p>Same. — Omission of Exhibit Oared by Verdict. — Not Available on Appeal. — Error committed in a failure to file a proper exhibit with the complaint is cured by the verdict, and is not available on appeal if not taken advantage of in the 'trial court.</p> <p>Landlobd and Tenant. — Lease from Year to Year. — Notice.—All general tenancies, in which no term is fixed, are tenancies from year to year, requiring notice to terminate them.</p> <p>Same. — Notice.— When Unnecessary. — If the time is definite and certain in a lease, a notice to quit is unnecessary.</p> <p>Same. — Sam Payable in Gi’oss to be Credited at a Given Rate per Month. — If a lease is given containing no express provisions respecting its duration, but providing for the payment of a sum in gross, which shall be credited upon rent at a given rate per month, a tenancy is created for the term for which the sum named would pay at the stipulated rate per month.</p> <p>Same.— Title Bond Turned into a Lease, and Payment Thereon into Bent. — A gave B. a title bond for a lot, conditioned to give him a deed for it on payment of the remainder of the purchase-money at the end of twelve months. Seventy-five dollars was paid down. Afterwards the bond was modified by endorsement thereon, to the effect that A. should have the right to refuse a deed, and that the seventy-five dollars should “go toward paying rent on” the “ lot at the rate of six dollars per month.” B. was also given the right to refuse a deed, and “ to let the seventy-five dollars go as rent” if he did “ not wish to buy ” the lot “at the “endof twelve months.”</p> <p>Held, that the bond was converted into a lease, determinable without notice in twelve and one-half months from its date.</p> <p>Same. — Construction of Lease. — Intention of Parlies. — Leases are construed as all other contracts, with reference to discovering the intention of the parties from the instrument taken as a whole.</p> <p>Appellate Court. — Jurisdiction.—Lease.—All actions for the recovery of the possession of premises under a lease, involving no questions except such as arise upon the construction of the lease, are appealable to the Appellate Court.</p>

<p>Master and Servant.—Obvious Banger.—Personal Injury of Servant. —Nonliability of Master.—Stone Quarry.—Where it appears that the servant of a stone quarry company, whose duty it was to assist in moving stone from place to place, by the use of a traveler and “dogs, ’ ’ had equal opportunity with the company to observe the position and appearance of the stone, which fell upon him while he was attaching the “dogs” thereto, inflicting mortal injuries, the position and appearance of the stone being clear and open to the observation of every one, the company is not liable in damages for the death of the servant.</p>

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

<p>Guardian and Ward.— Word’s Property. — Possession of. — Action to Recover. — Guardian Should Institute. — The guardian is the proper party to institute an action of replevin for the recovery of the possession of personal property belonging to his wards. It is his duty to take such steps and avail himself of such legal remedies as will put his ward’s estate in his hands, that he may account for it as required by law.</p>

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

<p>Sale.— WindmiU. — Action for Price of. — Notice of Defects. — When Mill Deemed Erected. — Instruction to Jury. — In an action for the recovery of the price of a wind-mill, under a contract of sale which provided, that notice of any defects in the mill must be given by the defendant to the plaintiffs within ninety days after the mill was put up, an instruction was proper which stated to the jury that the time when the mill-owner erected the mill was a question of fact for the jury to decide under all the evidence in the case, “ but it should be deemed as erected in contemplation of law, when placed properly in position to perform the work intended, and left with the defendant as a performance of the contract read in evidence on the part of the plaintiff, even though in some of its parts it was not yet wholly and skilfully adjusted.”</p> <p>Same.— Waiver of Notice of Defects.— What Does not Constitute. — The fact that the plaintiffs after the expiration of said ninety days made some repairs on the mill or remedied some of the alleged defects did not of itself constitute a waiver of the provision in the contract requiring notice to be given within ninety days after the mill was put up.</p> <p>Same. — Evidence.— Conversation Delating to Dejects. — Inadmissibility of. — A conversation between the defendant and an alleged agent of the plaintiffs after the expiration of said ninety days was not competent for the purpose of proving notice to the plaintiffs of defects in the mill.</p> <p>Same. — A conversation within said ninety days between the defendant and M., a person alleged to be an agent of the plaintiffs, in which the defendant stated that the mill did not and would not work, and would have to be fixed or taken away, and requested M. to tell G., who had negotiated the sale of the mill, that it did not work and to come and fix it or take it away, is not admissible, the contract of sale requiring that notice of defects should be given to the plaintiffs, and there being no evidence that at the time of said conversation either of said parties was an authorized agent of the plaintiffs.</p> <p>Evidence. — Conversation.—-Cross-Examination.—Striking Out Questions and Answers.— When not Error. — Where on cross-examination there has been a full examination as to all the details of a conversation, the exclusion of a single question and answer relating thereto will not be available error. It is not error to strike out on cross-examination a question and answer which have no reference to anything the witness had testified to in chief.</p>

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

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

<p>Cotjhty Clerk. — Money Received by in Payment of Judgment. — Action for.— Statute of Limitations. — Where money is received by a clerk in payment of a judgment, a statement in a receipt therefor to the judgment defendant that the money is to be applied on the judgment, does not amount to a contract, in writing, to pay the money to the judgment plaintiffs, and an action against the clerk for the money received is not thereby taken out of the operation of the statute limiting such actions to six: years.</p>

<p>Appeal. — Theory of Case. — The theory upon which a cause proceeded in the trial court should be the theory upon which the action of that court is tested on appeal. ></p> <p>Railroad. — Injuries to Stock. — Pleading.—In an action against a railroad company for killing stock, where the complaint alleges that the railroad was not fenced at the place where the animal entered upon it, it Is oot necessary that it he also alleged or shown that the railroad could properly have been fenced at such place. If it could not properly be fenced, this is a matter of defence.</p> <p>Same. — Liability for Stock Killed. — Horn Affected by Act of April 8th, 1885.— The act of April 8th, 1885 (Acts 1885, p. 148), providing for the construction and maintenance of farm crossings by the owners of tracts of land separated by a railroad, and the erection and maintenance of gates if the road is fenced, does not repeal the law rendering railroad companies liable for stock killed or injured by their cars where they do not securely fence in their railroads.</p> <p>Same. — Fence.—Private Way. — A private way across a railroad from a farm lying wholly on one side of the right of way to a highway on the opposite side of the right of way is not a farm crossing within the meaning of section 5 of the act of April 13th, 1885 (Acts 1885, p.224), which provides that “All gates and bars at farm crossings shall * '* * be constructed and maintained and kept closed by the owner of such farm crossing.”</p> <p>Same. — Act of April 13th, 1885. — Said act of April 13th, 1885, does not relieve a railroad company from liability for injury to animals which enter upon the track through a gateway to such private way, left open in a fence separating the railroad from a public highway.</p>

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

<p>Bill of Exceptions.— Mow Set Out.— Certification of. — A bill of exceptions can not be regarded as a part of the record, unless it be'set out in the transcript of the record of the cause as made and certified by the clerk of the circuit court.</p> <p>Evidence. — Newly Discovered.— What Record Must Disclose. — The rule that the right to a new trial depends largely upon whether the newly discovered evidence would be cumulative, as, also, whether if not cumulative, it would change the result on a second trial, makes it indispensable that the record on appeal should disclose what the issues and evidence were in the first trial, as well as what is the newly discovered evidence.</p>

<p>Tbespass. — Plaintiff’s Might of Possession. — In an action for trespass to realty, where the plaintiff is in peaceable possession of real estate, his right thereto can not be brought in question by any one except the rightful owner.</p> <p>Same. — Lease.—Title.—A tenant from year to year, in possession under a lease from the remainder man, consented to by the owner of the life-estate, has sufficient title to maintain an action for trespass against one who purchased the land with actual knowledge of the tenancy and subject to the lease.</p> <p>Same. — Growing drops. — Pleading and Proof. — An allegation in a complaint charging the defendant with the carrying away and destruction of one hundred and fifty bushels of potatoes belonging to the plaintiff is supported by proof that the defendant’s servants dug up and carried away and destroyed about one hundred and fifty bushels of potatoes, which, though fully matured, were standing in the ground, and had not been harvested; as growing crops planted by a tenant constitute personal property for all practical purposes.</p>

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

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

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

<p>PbACTIce. — Failureio Swear Witness. — Record.—New Trial. — Where a witness testifies without having been sworn, hut it does not appear in the record that the party against whom the testimony was given and his attorney were not aware of the mistake in time to have it corrected, a new trial will not be granted on account of such omission.</p> <p>Misconduct of Counsel. — Argument.—Practice.—Where counsel is guilty of misconduct, and the opposing party at the time objects, and the court does all in its power to relieve the party injured from the consequences of such misconduct, no question can be presented to this court unless the injured party moves to discharge the jury.</p>

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

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

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

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

<p>Decedent’s Estate.—Claim, Sufficiency of.~A claim against a decedent’s estate, of the following tenor: “Estate of Bobert Stewart, deceased. In account with James M. Small and Laura E. Small, wife of said James M. Small, Dr. Eor board, washing, sewing, nursing and expense of last sickness, watching with and caring for deceased from November 1, 1888, to September 29,1893. Total of 256 weeks, $2,125,” is sufficient.</p> <p>Parent and Child.—When Services Not Ch'atuitous.—Presumption.—A promise by a parent to give to a child land in consideration of board, nursing, care and attention is sufficient to rebut the presumption which arises, when the services were rendered while the parent was living as a member of the child’s family, that they were gratuitously rendered.</p>

<p>Replevin.—Property not Included in Mortgage.—Subsequent Mortgagee. —Sale.—Title.—Where A sold a printing press, including blanket, stocks, wrenches and overhead fixtures for power, on payments, on which a mortgage was executed to secure the deferred payments, and in addition to.the above described property a paper folder without additional price, which was not included in the mortgage, A can not replevy the paper folder from 0, who was a purchaser for value, from B, in reliance on the public records of both A’s andB’s mortgages, which disclosed no lien on the folder, and who, in accordance with the terms of his mortgage on the folder and the other property above mentioned, executed subsequently to A’s mortgage, advertised and sold the folder at public auction and became the purchaser thereof and took possession of the same.</p>

<p>Notice. — What Constitutes. — Whatever is notice enough to excite the attention of a man of ordinary prudence, and call Eor further inquiry, is, in equity, notice of all the facts to the knowledge of which an inquiry suggested by such notice, and prosecuted with due and reasonable diligence, would have led. If a man have actual notice of circumstances sufficient to put a man of ordinary prudence on inquiry, as to a particular point, the knowledge which he might by the exercise of reasonable diligence have obtained, will be imputed to him by a court of equity.</p> <p>Contract. — Goods Fraudulently Obtained. — Disaffirmance of Contract. — Where possession of property has been wrongfully obtained by means of a voidable contract, and the vendor has received nothing of value, the bringing of an action to reclaim the property is ordinarily a sufficient disaffirmance of the contract.</p> <p>Appellate Court.— Waiver of Error. — The failure of counsel to discuss alleged error of the court in overruling a motion for a new trial constitutes a waiver.</p>

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

<p>Master and Servant.—Duty of Master to Servant.—Delegation of.— Liability.—A duty which the master owes to the servant can not be delegated to another servant or agent, whether of high degree or low, so as to absolve the master from liability for its nonperformance.</p> <p>Same.—Negligence.—Dangerous Place to Work.—It is negligence on the part of the master to have in the third floor of its building, where men were set to work, a hole nine feet by twenty-eight, covered with rotten canvas, without any guard about it, or any warning to its employes of its existence.</p> <p>Same.—Safe Place to Work.—Scope of Buie.—The duty of the master to keep the working place safe does not cease when he has provided competent men and proper materials to work with.</p> <p>Same.—When Servant Chargeable with Knowledge of Danger.—Opening in Floor.—Where it appears that the servant entered the third floor of the building and found a canvas stretched down on it; that he was ordered to lay planks across there to walk on; that he saw his fellow-workmen walk around it and not across it; that he shoved a plank over it, saw it sag down, and placed one board on top of another lest one should break, and thought the canvass was put there to catch a person if he should step on it, the servant ought, in the exercise of reasonable care, to be chargeable with knowledge of the hole under the canvas, and will be deemed to have had actual knowledge thereof.</p>

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

<p>Husband and Wine. — Criminal Conversation. — Admissibility of Evidente.— In an action by a husband for his wife’s seduction, it is not error to permit the husband, in testifying to a conversation between himself and the defendant in his wife’s presence, relating to the seduction, to detail what was said by the wife to the defendant during such conversation concerning the charge.</p> <p>Misconduct of Counsel. — New Trial. — Where, in his closing argument to the jury, an attorney goes outside the issues, indulges in the discussion of matters which have no connection with the case, and uses abusive and denunciatory language, calculated to prejudice the defendant in the minds of the jury, and, upon objection by the opposing party, the court fails to do all in its power to remedy the injury, a new trial will be awarded.</p>

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

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

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

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

<p>Railroad. — Stations.—Duty of Fencing. — Railroad companies are not required to fence their tracks at stations where passengers are received or discharged.</p> <p>Same. — Occasional Use of Station as Such. — Although the station is used as such only at irregular intervals, by picnic parties and for camp-meetings, it is still a station within the meaning of the law, and the company is not required to fence its track.</p>

<p>Common Carrier. — Shipment of Live Slock. — Ownership of Stock. — Presumption as to. — Complaint.—In an action against a railroad company as a common carrier for an alleged breach of special contracts for the shipment of cattle, when it appears from the complaint as a whole that the plaintiffs were the owners of the stock, and no consignee is named in the contracts, it will be presumed that the shipment was to be made to them.</p> <p>Same. — Complaint.—Averments as to Common Carrier. — Sufficiency of. — All corporations operating railroads in this State are made common carriers by provision of statute. An averment that a corporation is engaged in operating a line of railroad is equivalent to an averment that it is a common carrier.</p> <p>Same. — Oral Agreements. — Merger of in Written Contract. — All antecedent and contemporaneous oral agreements of the parties are conclusively presumed to be merged in a written contract covering the subject-matter, when one is made. This presumption is applicable to the contracts of carriers.</p> <p>Same. — Time of Shipment. — Obligation of Garrieras to. — "Where the contract of a carrier for the transportation of goods is silent with reference to the time of shipment, the law imports into the contract an obligation to ship within a reasonable time after the goods have been delivered for that purpose, and this element becomes a substantial provision of the contract, as much as if it had been expressly written in it, and-its effect can not be changed, altered or modified by parol. Cincinnati, etc., P. W. Co. v. Case, 122 Ind. 310, distinguished.</p> <p>Same. — A railroad company is bound to transport live stock within a reasonable time after receiving it, but it can not be said as a matter of law that this means that the shipment must be made on the first train leaving after the property has been delivered for transportation.</p> <p>Pleading. — Complaint.—Must Proceed on Definite Theory. — Every complaint must be construed with reference to the general theory upon which it proceeds, and its legal value estimated accordingly.</p>

<p>Special Finding. — Material Facts. — Silence as to. — Preemption Arising.— "Where a special finding is silent as to a material fact it will be presumed as against the party having the burden, where the evidence is not in the record, that such fact was not proven.-</p> <p>Same. — Conclusions of Law. — Exception to —Effect of Motion for New Trial.— An exception to the conclusions of law concedes, for the purposes of the exception, that the facts are correctly found. The talcing of an exception, however, does not preclude the filing of a motion for a new trial</p> <p>Same.— When Motion for New Trial Proper. — Where pertinent and material facts are proven, but the court does not find upon them, and thereby impliedly finds that they are not proven, the finding in such respect is contrary to law, as well as contrary to the evidence, and good cause arises therefrom for a new trial.</p> <p>Bill op Exceptions. — Evidence.— When Properly in Becord. — Certificate of Judge.— What it Imports. — No matter by whom evidence is taken down, it must be regarded as in the record, if fully and accurately embodied in the bill of exceptions, duly signed by the judge and properly filed. It is the certificate, or signature, of the judge that gives verity to the matters contained in a bill of exceptions, and it is upon him, and him alone, that the Appellate Court must rely for the assurance that the bill of exceptions contains all the evidence given at the trial. A bill of exceptions, when properly signed and in the record, imports absolute verity, and is conclusively binding upon the Appellate Court.</p> <p>Pleading.— Value of Worh. — Action to Becover.— General Denial.— What May be Prosed, Under. — In an action for the recovery of the value of certain work alleged to have been performed by the plaintiff for the defendant, the latter may prove under the general denial that the work was not done for him, but for others.</p>

<p>Life Insurance.—Manner of Death.—Statements in Proofs not Conclusive.—The statements in the proofs of death required by an insurance company, either of fact or opinion as to the manner of death, are not conclusive.</p> <p>Same.—Suicide.—Burden of Proof.—Where, in defense of an action upon a policy of life insurance, the insurer pleads suicide as the cause of death, the burden is upon the latter to establish this issue by a fair preponderance of the evidence, not by a prima facie case alone, but by such proof as will overthrow all the evidence to the contrary.</p> <p>Same.—■Presumption Against Suicide.—Doubt as to Cause of Death.— Question for Triers.—Suicide will not be presumed, but on the contrary the presumption is that the death of an insured was not voluntary, and where the evidence leaves the manner of death in doubt, the conclusion reached by the court or jury trying the case will be upheld.</p> <p>Same.—Shot Wound in Forehead.—Mvidence Considered.—For a consideration of evidence showing death by a pistol shot wound in the forehead held sufficient to sustain a finding of accidental death, see opinion.</p>

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

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

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

<p>Vendor and Purchaser. — Rescission of Executory Contract of Sale by Vendor. —Cash Payment. — Forfeiture.—Where a cash payment is made by the vendee when the sale is made, and notes are given for the remainder of the purchase-price, the first of which is to be paid before the deed is delivered, and by consent of the parties the time of payment of such note is extended from time to time, the vendor, after making a sale to another upon the failure of the vendee to pay, can not claim the cash payment as forfeited. When the second sale is made a right of action accrues to the first vendee to recover the cash payment made.</p> <p>Attorney and Client.— Privileged Communications.— An attorney may testify against his client if his testimony does not involve confidential communications made to him in the course of his professional business with the client, or advice given as to matters in the action in which he is testifying.</p>

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

<p>Arbitration and Award. — Services as Arbitrator. — Action to Recover for.— Parties. — Plea in Abatement. — Where the plaintiff had performed services as an arbitrator at the request of the defendant, he was entitled to recover the reasonable value of his services in an action brought by him against the defendant without joining the other parties to the submission as co-defendants. If they should have been so joined that was matter in abatement.</p> <p>Same. — Reasonable Value of Services. — Right of Arbitrator to Recover.— Written Agreement of Submission. — Inadmissibility of in Evidence. — Plea in Bar.— Parol Evidence. — The parties to an arbitration entered into a written agreement of submission which provided, among other things, that “ It is further agreed that all expenses except fees of attorneys of respective parties, incurred in this arbitration, shall be equally borne and paid by the parties hereto.”</p> <p>Meld, that the written agreement of submission was not admissible in evidence against the plaintiff, who had performed services as an arbitrator, in an action against one of the parties to the submission.</p> <p>Meld, also, that whatever might be the proper effect as between the parties to the arbitration of the agreement concerning the payment of expenses, the plaintiff’s right to reasonable compensation for his services .was not affected thereby.</p> <p>Meld, also, that if the excluded instrument would have shown that the plaintiff was employed by the parties to the submission jointly, that could not have availed as a defence in bar.</p> <p>Meld, also, that the objection that the oral evidence tended to vary the written instrument was not pertinent.</p> <p>Pleading. — Plea in Abatement.— What Must Show. — An answer in abatement alleging that other persons are liable jointly with the defendant, which fails to show that such other persons 'are living and subject to the process of the court, is bad.</p> <p>Same. — Plea in Abatement.— When May be Struck Out. — Sustaining Demurrer to. — Effect of. — Plea in Bar. — If an answer in abatement be pleaded with an answer in bar, the answer in abatement may be struck out on motion. If a demurrer be sustained to it, however, an equivalent result has been accomplished, and there can be no available error in such action of the court, whether the answer in abatement would have been good or bad, if pleaded before the answer in bar, instead of with it.</p>

<p>Evidence.—Repetition of Question.—Rejection.—The following question: “How much wheat, if you know, was delivered to your firm out of cars Nos. 439 and 1889 each from Buck,” was properly rejected where the witness had previously stated that lie only saw a part of the wheat weighed, and that he could not say how many bushels were in the cars.</p> <p>Same.—Memorandum of Weights Made by Different Persons.—There was no error in refusing to admit in evidence a copy of the memorandum of the weights of wagon loads of wheat put in the cars, where the memorandum was made by different persons.</p>

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

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

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

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

<p>Contributory Negligence.—Parent and Child.—Is Child Twelve Tears Old Sui Jurist—Law and Fact.—Railroad Depot.—The court can not say, as a matter of law, that a boy twelve years old is incapable of taking care of himself at a depot, such question is for the jury to determine.</p> <p>Same.—Walking Close to Moving Train.—It was not necessarily negligence for such boy to walk slowly along the station platform, within a foot and a half of the train moving at the rate of two miles an hour.</p> <p>Same.—Trespasser.—Depot Platform.—Nor was he necessarily a trespasser because he failed to leave the platform and take the shortest route home.</p> <p>Same.—General 'Averment.—When not Overcome by Specific Facts.— It is not enough to overthrow the general allegation of freedom from contributory negligence that the specific facts fail to show want of negligence.</p> <p>Railroad.—Duty as to Passenger Depot and Platform.— To Whom Extends.—It is the duty of a railroad company to keep its station and platform in a reasonably safe condition, and to have them reasonably well lighted. Such duty is not limited to actual passengers only, but includes those who come to meet friends or “speed the parting guest.” 1</p> <p>Damages.—Excessive.—When Sufficient Data.—It being shown by the evidence that the deceased was nearly twelve years old, a healthy boy, ordinarily bright and intelligent, who had gone to school, learned to read and write and cipher, was a good boy to work and help do chores about the house, run errands and feed the stock, there are sufficient data to enable the jury, by the aid of the ordinary every day knowledge presumably common to every man, to assess not only nominal damages, but reasonable substantial damages for the loss of the boy’s services until twenty-one.</p> <p>Evidence.—Physician and Patient.— When Privilege Attaches.—Physician Employed by Railroad Company.—The knowledge acquired from a patient by a physician while treating the patient is confidential ; and the fact that the physician was employed and paid by the defendant railroad company does not prevent the privilege from attaching when the relation of physician and patient actually exists.</p>

<p>Slander. — Pleading.—Complaint. —In an action for slander the complaint averred that the defendant, in the presence of others, addressed to the plaintiff words charging him with having obtained money from the defendant by false pretences, by selling tickets for an alleged entertainment, when he knew no such entertainment was to be given.</p> <p>Held, that the words were actionable, per se, and that the complaint was sufficient.</p> <p>Same. — In order to be actionable per se, it is not necessary that the words should be such as to describe the offence imputed by them with technical accuracy, but it is necessary that they should be such as to convey to the minds of the hearers an imputation of crime.</p> <p>•Same. — Excessive Damages. — In an action for slander the judgment will not be reversed on the ground of excessive damages, unless they appear at first blush to be grossly excessive.</p>

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

<p>"Witness. — Impeachment.—In an action on account, where a witness testifies that the defendant admitted the debt, it is competent to show that the witness had said out of court that she would not swear that the defendant had told her that he was so indebted.</p>

<p>Pleading.—Filing Amended Paragraph—Effect of.—If a paragraph of a pleading be amended the amended paragraph supersedes the original paragraph, and when the original paragraph goes out of the record by the filing of the amended paragraph, all the rulings concerning it also go out with it.</p> <p>Appellate Couet Pkactice.—Becord.—Motion to Strike Out Special Verdict.—If the record does not show that a motion to strike out a special verdict is in the record, nor that it was in writing, nor that it, together with the court’s ruling thereon, was made a part of the record by order of the court, no question is presented.</p> <p>Veedict.—Beceiving General Verdict.—Special Verdict Bequested.— When Beversible Error.—Practice.—When a special verdict has been requested, the party requesting it should object to the court’s receiving a general verdict, otherwise the right to have a special verdict returned is waived. And if the court receives the general verdict notwithstanding such objection, and proper exception is saved, it-will be reversible error.</p>

<p>Lien. — Livery-Stable Keepers. — Bemoval of Animal. — Beplevin.—A livery- _ stable keeper is entitled to a lien for the feed and care of a horse boarded at his stable, and the lien is not divested by reason of the fact that the horse is used more or less each day. If the horse be removed without the livery-stable keeper’s knowledge, or consent, he may maintain an action of replevin for the purpose of enforcing his lien.</p> <p>Same.— When it Attaches. — The lien attaches to the animal as the eare and feed are being bestowed, and does not hold simply from the time the board becomes due or payable.</p>

<p>Husband and Wife.— Use of Wife's Separate Estate by Husband with. Wife's Consent.—Trust.—If the husband, with the wife’s consent, use money belonging to the wife as part of her separate estate, in his business and for support of his family, without any understanding as to whether the same was a loan or a gift, it will be presumed that, as to such money, the husband is the trustee of the wife, and the husband or his estate is liable to the wife for such money.</p>

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

<p>Negligence. — Driving Oattle through Streets. — Persons driving cattle through the streets of cities or towns are bound to use the utmost diligence and care to avoid injuries to passersby.</p> <p>Same. — Where one might have avoided an accident, yet if he, in good faith, and with ordinary prudence, acted upon appearances and was deceived thereby, negligence will not be imputed to him.</p> <p>Same. — Contributory.— When Question for Jury. — Where the evidence of contributory negligence is conflicting, or the inferences to be drawn from it are doubtful, or not clear, the court will not decide as a matter of law whether or not there was contributory negligence, but under proper instructions will leave the question to the jury as one of fact. Instbuctions to Juby.— Waiver of Objections. — A party can not object on appeal that the instructions given by the court were not sufficiently comprehensive and definite, if he fails at the trial to submit to the court instructions supplying the omission complained of.</p> <p>Appellate Coubt.— Weight of Evidence. — The Appellate Court will not disturb the judgment because of a failure in the evidence to sustain the verdict.</p>

<p>Master and Servant.—Safe Place, Appliances and Transportation.— The master is bound to furnish his servant with a reasonably safe place in which to work, and suitable machinery and appliances, and, when he is transported from one place to another, safe means of transportation.</p> <p>Same.—Ordering Servant to Perform Services Outside of His Regular Employment and More Dangerous.—If the master or other person standing in the relation of superior or vice principal orders a servant into a position of greater danger than exists in the ordinary course of his employment, and which he would not otherwise have incurred, and he obeys, and is thereby injured, the master is liable, unless the danger is so apparent that to obey would be an act of recklessness. Same.—Special Finding.—Recovery.—That the special finding of facts is not sufficient to support a recover}-, see opinion.</p>

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

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

<p>Libel.—Publication■ Charging Priest with Immoral Conduct in Orphan Asylum.-—Bight of Bishop to Maintain Action.—A bishop of the Catholic Church who, as such, is superintendent of an orphan asylum and responsible for its management and government, and for the character and conduct of employes and instructors therein, may maintain an action for libel upon a publication charging that a young girl, an inmate of the asylum, was incarcerated in a dungeon for refusing to submit to the sexual desires of a priest who officiated in the asylum as instructor, if it appear that the libeolus words were published of the plaintiff.</p>

<p>Contract.— Quantum Meruit. — Evidence.—In an action to recover for work and labor in clearing and grading certain land, at an agreed price per acre, it appeared that after a part of the work was done, the plaintiff and the defendants disagreed as to the contract, the defendants declining to pay the plaintiff unless he would do the work according to their understanding of the terms and conditions of the contract.</p> <p>Held, that it was competent for the plaintiff to show what the work done and accepted was worth, though its value should be greater than the contract-price.</p> <p>Same. — Instructions.—In such case, the evidence being conflicting as td whether there was a special agreement between the parties as to the manner in which the work should be done, it was proper to submit the question to the jury.</p> <p>Same. — Instructions.—The court instructed the jury that if there were such a contract, and the plaintiff performed a portion of the work in the manner provided therein, and the defendants did not perform their part of such contract, the plaintiff would be entitled to the contract price for the work done; and the court instructed further, that if there were such a contract, and the plaintiff failed of his own fault to complete the work, he would be entitled to'the contract-price, but wouldjbe liable to defendants for any sum in excess of the contract-price the defendants would be compelled to pay to have it completed; and that if there was no special contract, the plaintiff would be entitled to recover the reasonable value of the work done.</p> <p>Held, no error.</p> <p>Instruction to Jury. — Appeal.—Waiver of Objection. — An objection that an instruction by the court is not full enough will not be considered on appeal, where no request was made at the trial for an instruction supplying the omission.</p>

<p>Decedent’s Estate.—Claim.—State of Indiana.—Statute of Limitations.—The provision in section 2465, E. S. 1894, that a claim against a decedent’s estate, filed after one year, shall be barred if not filed at least thirty days before final settlement of the estate, applies to a claim of the State upon a judgment on a forfeited recognizance bond; the provision of the general statute of limitations-(section 805, E. S. 1894), that “limitations of actions shall not bar the State of Indiana,” does not apply to claims against decedents’ estates.</p>

<p>Verdict.— Special Findings. — Motion for Judgment Upon. — If the special findings can be reconciled with the general verdict under any proof that might have been made within the issues, a motion for judgment on the special findings, notwithstanding the general verdict, may be properly denied.</p> <p>Sale. — Nursery Trees. — Implied Warranty. — In the sale of nursery trees for transplanting, the law implies a warranty upon the part of the seller that they shall be reasonably fit for and adapted to that purpose.</p> <p>Same. — Inadequacy of Consideration. — The mere fact that an article may have been worth less than the contract-price, in the absence of a breach of warranty or fraud in the sale' of it, constitutes no defence to an action for the purchase-price; nor is evidence of such fact admissible to reduce the amount of recovery.</p> <p>Practice. — Excessiveness of Amount of Mecovery. — Motion for New Trial.— Assignment of Failure of Evidence. — Where the appellee is entitled to recover any amount, the excessiveness of the amount of recovery can not be made available under an assignment in the motion for a new trial, of the failure of the evidence.</p>

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

<p>Insurance.—Transfer and Assignment.—Waiver of Conditions as to Notice and Indorsement.—Conditions in a fire insurance policy providing that the policy shall be void if -written notice of a transfer of the property be not given, or if the policy be assigned before loss without the assent of the insurer indorsed thereon, may be waived.</p> <p>Same.—Assenting to Assignment.—What is Sufficient.—In assigning a policy, any method of assent by which the insurer leads the assured to consider that the assignment is sufficient, is all that is required.</p> <p>Same.—What Amounts to Waiver of Conditions.—Where at the time of the transfer of insured property the insurer is orally notified of the transfer and assignment, and, having the policy in its possession, with nearly five years to run, consents thereto, and does not avail itself of its right to cancel the policy, but fails to indorse its consent upon the policy, its conduct is such as to mislead the assured and his assignee, and the conditions requiring written notice of transfer, and requiring indorsement upon the policy, will be deemed waived.</p> <p>Same.—Consent to Transfer.—Effect as to Assignment.—The insured’s consent to a transfer of the property will not be effective as to an assignment of the insurance to the grantee unless such consent is given with knowledge that it is the purpose and agreement of the assured and his grantee to transfer the insurance as well as the property.</p> <p>Same.—Assignment After Loss.—A. policy of insurance, after the destruction of the property, becomes a mere chose in action, and may be assigned as such.</p> <p>Same.—Conditions Precedent.—Pleading.—A general averment that the insured and his grantee and assignee have performed all the conditions of the ’policy on their part to be performed is a sufficient pleading of the conditions precedent.</p>

<p>Special Verdict. — Formal Conclusion. — Omissionof.—A special verdict is not vitiated by the want of the usual formal conclusion.</p> <p>Same. — Negligence.—Negligence may be pleaded in general terms, without stating the particular facts constituting it. In a special verdict, however, the particular facts proved under such a pleading should be set out.</p> <p>Practice.— Venire de Novo. — The fact that a special verdict contains no finding upon particular matters of fact in issue is not sufficient ground for a venire de novo. To require a venire de novo the verdict must be so defective that a judgment can not be rendered on it.</p> <p>Same. — In examining the verdict under a motion for a venire de novo, mere conclusions of Jaw, mere evidence and findings outside of the issues will be disregarded; and if, when stripped of such improper matters, the verdict is sufficient to sustain a judgment for either party, a venire de novo will not be granted.</p>

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

<p>Railroad. — Negligence.—Injury to Passenger.— Violently Starting Train.— Pleading. — Complaint.—In an action against a railroad company to recover damages for an injury received by the plaintiff while a passenger on one of defendant’s trains, the complaint alleged that when the train stopped at the plaintiff’s destination she was notified by the servants of the company to alight, and that she went out upon the platform, but could not get off where the train had then stopped, and was told by the servants of the company to remain on the platform; that while she was thus upon the platform, in the dark, with a child in her arms, without giving her time to return into the cars, the train was negligently started with a violent jerk, which caused the car-door to violently close upon and injure her finger. The complaint alleged that the plaintiff was without fault.</p> <p>Held, that the complaint shows actionable negligence on the part of the defendant, and that it was good against a motion to dismiss.</p> <p>Held, also, that it does not appear from the averments of the complaint that the plaintiff was guilty of contributory negligence.</p> <p>Held, also, that the plaintiff was not negligent in going upon the platform and placing her finger in a position where it was liable to be injured if the door closed upon it, it not appearing that she so placed her hand voluntarily, and independent of the sudden motion of the train.</p> <p>Same. — Pleading.—The general averment that the plaintiff was without fault is sufficient, unless the facts specially pleaded clearly show negligence proximately contributing to the injury.</p> <p>Same. — Passenger. — Obedience to Employee’s Orders. — Contributory Negligence. — A passenger who is told by an employee of the train to remain on the platform of the car until a more suitable place for alighting is reached, is not guilty of contributory negligence in failing to attempt to return to her seat when the car is started, if the danger is not so obvious that a reasonably prudent person would not have obeyed the employee.</p> <p>Same. — Injury to Passenger. — Prima Facie Evidence of Negligence. — Where injury is sustained by any one while upon a railway company’s train as a passenger, it is treated as prima fade evidence of negligence on the part of the company. This rule applies not only to defects in machinery; but also to the acts of the servants engaged in operating the machinery.</p> <p>Contributory Negligence. — Verdict.—The verdict of á jury in respect to contributory negligence will not be disturbed except in very clear cases.</p>

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

<p>Intoxicating Liquors.—Sale to Minor.—Drowning While Intoxicated. ■—Action Upon Bond for Damages.—Proximate Cause.—Sale by Employe, Liability for.—Where a licensed retailer, who, either himself or through an employe acting within the scope of his employment, unlawfully sells or furnishes intoxicating liquors to a minor, whereby the latter becomes intoxicated, and while on his way home in that condition falls into a river and is drowned, an action for damages therefor may be maintained upon his bond.</p> <p>Same.—Criminal Character of Act Does Not Believe from Liability.—In such case, the fact that the act of the employe in making the sale or furnishing the liquor to the minor was criminal will not relieve his principal from liability.</p> <p>Special Verdict.—Additional Bindings, Motion for.—Practice, Appellate Court.—No question is presented on appeal upon an oral motion in the trial court to require a jury, which has brought in a special verdict, to return to the jury room and find upon other facts, unless the motion is brought into the record.</p> <p>'.Same.— Venire de Novo.—-A venire de novo will only be awarded where the special verdict is ambiguous, indefinite or wanting in form.</p>

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

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

<p>Minor. — Suit for Services. — Averment as to Manumission of Infant. — Sufficiency of. — In an action brought by an infant by his next friend, against the defendant for work and labor done for and at the request of the defendant, a complaint is sufficient which avers that, though an infant, the plaintiff had been manumitted and set free by his father. The further averment in the complaint that the appellee was living with his father at the time the action was instituted, and was so living with him during the entire time the work was being performed, does not vitiate the averment as to his full emancipation.</p> <p>Same. — Complaint.—Defect of Parties.— Demurrer. — A demurrer to the complaint on the ground of defect of parties, in that the plaintiff’s father was not made a party defendant, was properly overruled. The complaint averred that from the beginning to the close of the services referred to, the plaintiff was the sole party interested in them, having been completely emancipated before any of them were rendered. If there were any facts which made it necessary that the father should become a party they do not appear in the complaint, and should be set. up in some pleading or application by the defendant.</p> <p>Same. — Manumission of Infant. — Right to Earnings. — The rights of an infant after emancipation by his parent, to demand and recover his earnings, are as complete as if he had reached the age of majority. When the father has once emancipated and set free his son he has no further pecuniary interest in his services and earnings, and can not after-wards reclaim the right to the same.</p> <p>Same. — Complaint for Services. — Answer Alleging Special Contract, — Right of Infant to Avoid. — Toa complaint filed by an infant by his next friend, against the defendant for work and labor done for and at the request of the defendant, alleging that the plaintiff had been manumitted and set free by his father, an answer which avers that the work claimed for was done under a special contract of apprenticeship made by the plaintiff and his father, by which the plaintiff was to learn the art of moulding iron, and was not to receive his full wages until he had served out his term of apprenticeship, which he had not done, etc., is bad. Such a contract, as the one pleaded in the answer, is voidable upon the part of the infant party. He has a right, in such a case, to abandon the contract and sue and recover on a quantum meruit.</p> <p>Same. — Manumission of Infant. — How May be Proved. — The fact of the emancipation of an infant may be proved by circumstances the same as any other fact. A formal contract between the parent and infant need not be proved. The acquiescence of the father in the acts of his son in drawing his own wages, and other facts tending to show that the father had emancipated him, may be given in evidence to the jury.</p> <p>Crumpacker, J., dissents.</p>

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

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

<p>•County.—Gravel Road Bonds—JVo General Liability.—There is no general liability resting upon counties by reason of gravel road bonds issued in pursuance of the act of March 11, 1877 (R. S. 1894, section 6861).</p>

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

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

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

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

<p>Maeeied Woman.—When not Liable for Necessaries of Life NurnishecH Her.—A married woman cohabiting with her husband can not be held liable for necessaries of life furnished her, unless she expressly agrees to pay therefor and they are furnished on her credit.</p>

<p>Sake. — Bona Fide Purchaser. — Defence of Title. — Liability of Seller for Expenses of Suit. — Joint Tort Feasors. — Where a chattel is purchased in good faith and converted to the buyer’s own use, but after its conversion it is claimed by another, and the buyer contests the claim by authority from the seller, who agrees to indemnify him for the expenses of the action, and, as a result of the suit, a judgment is recovered against the buyer and seller jointly, they are not joint tort feasors, and the buyer may maintain an action for the money expended in defending the title.</p> <p>Practice. — Good Special Answer. — Sustaining Demurrer to.— When not Error. —It is not error to sustain a demurrer to a good special answer where the facts pleaded may be shown under the general denial already in.</p> <p>Instructions to Jury. — Where no instructions are in the record except those objected to, and they contain no misstatements of the law, it can not be said there was any error in giving the ones criticised.</p> <p>Same. — Refusal of. — Available error can not be predicated upon the refusal to give an instruction requested, where the record does not contain all the instructions.</p> <p>Appellate Coubt.— Weight of Evidence. — Where there is some evidence to support the verdict, the Appellate Court will not reverse the judgment on the weight of the evidence.</p>

<p>Juby.— Voir Sire.—Irrelevant Question.—In a prosecution for selling liquor to a minor it was not error to refuse an answer to the question propounded to a juryman on his voir dire: “Do you believe a man who is engaged in the sale of intoxicating liquors under a license is a moral man?” where it does not appear that the question of morality was in issue nor that the defendant was engaged in selling intoxicating liquors. "</p> <p>Same.— Voir Dire—Mistake of Law—Challenge for Cause.—The mere fact that a juror, as shown by his voir dire, is mistaken as to the legal effect of the filing of the affidavit and information, is not sufficient cause for challenge.</p> <p>Sams.—Competency of Juryman.—A juror’s competency is not to be determined from one question alone, but from all he says upon the subject.</p>

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

<p>Appellate Court.—Mffect of Supreme Cov/rt's Order Transferring a Case.—An order of the Supreme Court transferring a cause to the Appellate Court séttles the question of jurisdiction, and is binding on the Appellate Court.</p> <p>Replevin.—Affidavit, Failure to File, Effect.—Taxes.—If no affidavit accompanies a complaint in replevin, the plaintiff is not entitled to possession of the property; but the action proceeds so that the title to the property or right to its possession may be determined; and a failure to aver that the property was taken for a tax does not render the complaint bad.</p> <p>'Same.—Property Taken for Taxes.—Trover.—Eeplevin, under our statute, is a possessory action, and if it appear upon the trial that the property was taken for a tax, the plaintiff will not be entitled to it. In such a case, if the seizure was wrongful, the injured party is reipitted to his action for trespass or trover or other proper action.</p> <p>Same.—Illegality of Taxes.—If it appear that the property was seized for taxes, the illegality of the tax can not be considered.</p> <p>'Same.—Stranger's Property Seised for a Tax.—If the property of a person is seized who does not owe the tax, he may maintain replevin for the property against the tax collector seizing such property.</p> <p>Practice.—Anticipating Defense.—If the complaint anticipates a defense which, if pleaded by the defendant, would be a bar to the action, the plaintiff must plead facts sufficient to avoid such defense, or the complaint will be insufficient to withstand a demurrer.</p> <p>Town.—Power of Marshal to Collect Taxes.—When the town marshal has received the tax duplicate of his town, and the warrants attached thereto, they confer upon him the same powers as an execution issued to him by a justice of the peace, and he may seize the property of any taxpayer on such duplicate, any place within the county wherein such marshal’s town is situated.</p> <p>Taxes-.—Demand Before Levy.—A seizure of property for taxes is not illegal because of the failure of the tax collector to first make a demand of payment of the person owing for such taxes.</p>

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

<p>County. — Negligence.—Failure to Keep Bridge in Repair. — Action for Injuries. ■ — In an action against a board of county commissioners to recover damages for injuries sustained by the plaintiff while crossing a bridge which the defendant had negligently permitted to remain out of repair, it appeared from the pleadings and the special finding of the court that the bridge, which was over a small stream, had been rebuilt, with bannisters, in the year 1881, by the trustees of the township ; that in October, 1888, the plaintiff, with her husband, undertook to drive across the bridge in a buggy, the horse, which was reasonably safe and gentle, being driven by her husband in a careful manner; that when near the west end of the bridge the horse scared at a crooked log, extending from the corner of the bridge, which had been placed there by the road supervisor to keep the earth from washing away; that the horse backed the buggy to the north side of the bridge, where there was no railing, and had not been since June, 1887, and the plaintiff, her husband, and the horse and buggy were precipitated to the creek below, the plaintiff receiving the injuries complained of, without negligence by her or her husband; that in May, 1888, two of the county commissioners had crossed over the bridge, but did not notice that the railing was off; that the accident and injuries occurred because of the horse being frightened and the absence of the railing.</p> <p>Held, that the facts show a negligent breach of duty on the part of the defendant resulting in the injury to the plaintiff, and that the plaintiff was without fault.</p> <p>Held, also, that the fright of the horse did not relieve the defendant from liability, as the injury would not have occurred but for the negligence of the defendant in failing to provide a proper railing for the bridge. Same. — Negligence of Supervisor. — The fault of the supervisor, if it were such, in placing the kind of log he did at the approach to the bridge $• was not a good defence, as the' defendant’s own negligence helped approximately to bring about the accident.</p> <p>Same. — Proximate Cause. — Where two causes combine to produce an injury, both of which causes are in their nature proximate, the one being a culpable defect in the bridge itself, and the other an occurrence for which neither party is responsible, the county is liable, provided the injury would not have been sustained but for such defect.</p> <p>Same. — Bepair of Bridges. — Duty of County Commissioners. — Township Trustees. —The duty imposed by section 2892, R. &. 1881, upon county commissioners to keep bridges in repair is not removed by the act of April 13th, 1885 (Acts 1885, p. 202), making it the duty of township trustees to make repairs when the cost is less than seventy-five dollars.</p>

<p>Xandloed and Tenant.—Possessory Action.—Sufficiency of Complaint. —Expiration of Lease.—In an action by a landlord to recover possession from a tenant, tlie complaint sufficiently shows that the tenancy had ceased, where it appears that the lease under which possession was acquired expired May 27,1893, and that from that time until institution of the action, June 10, 1893, the tenant retained possession unlawfully.</p> <p>Same.—A tenancy which expires at a stated time requires no notice to terminate it.</p> <p>Same.—Tenant Molding Over.—When not a Tenant from Tear to Tear.— A subtenant in possession, and holding over, under a lease subject to renewal, but which has not been renewed, is not a tenant from year to year.</p>

<p>Bill of Exceptions.—When Not Properly in Record.—Time for Filing. —Order-Book Entry.—An order granting time to file a bill of exceptions after term must be made during term and must appear in the order-book. A recital of the fact in the bill of exceptions is not sufficient, nor is such a recital in the order-book, made at the time of filing the bill, sufficient.</p> <p>Same.—Time for Filing.—When Not Sufficiently Shown.—Where it appears in the bill and in the entry showing its filing that it was presented and filed “within the time allowed by the court,” it is not sufficient to make it a part of the record.</p> <p>Evidence.'—Conflict of.—Question for Jury.—If there be a conflict in the evidence, whether that of the plaintiff or defendant, or of both, it is the province of the trial court or jury to determine which is correct.</p>

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

<p>Sheriff. — Liability of for Deposit in Lien of Bail. — While the sheriff is not authorized by statute to receive money on deposit in lieu of bail, yet if he does so from a prisoner in his charge, he is liable to the State for the money received.</p> <p>Same. — Estoppel to Deny Legality of Transaction. — The act of receiving the money amounted to an agreement on his part to pay it to the clerk, who alone had the statutory right to receive it, and he is estopped to deny the legality of the transaction, or the prisoner’s liability.</p> <p>Same. — Action in Bern. — Notice by Publication. — Proceedings by the State against the sheriff to recover the deposit, after forfeiture thereof declared, are purely in rem so far as they affect the prisoner, and therefore while he was served with notice by publication, being a non-resident, and not personally, he was as fully bound by such proceedings as if the service had been personal.</p> <p>Same. — Setting Aside Judgment of Forfeiture. — Pleading.—In such action, the complaint need not aver that the judgment of forfeiture had not been set aside, the presumption being that the judgment remains in force till ' the contrary is alleged.</p> <p>Same. — Judgment of Forfeiture Equivalent to Demand. — Pleading.—The judgment of forfeiture was equivalent to an order upon the sheriff to pay the money into court, and an averment of a demand was unnecessary.</p> <p>Same. — Judgment of Forfeiture. — Indictment.—Where a prisoner, held to bail by a justice of the peace, to answer any indictment that might be returned against him by the grand jury, deposits money with the. sheriff in lieu of bail, it is not necessary, in an action against the sheriff to recover the deposit, to aver that an indictment was returned.</p> <p>Same. — Payment to Successor. — The complaint, which alleged that the sheriff failed to pay the money, as he was in duty bound, is not defective because it did not allege that he failed to pay it to his successor.</p> <p>Same. — Order Setting Aside Judgment of Forfeiture Procured by Collusion and Fraud. — Collateral Attach Upon. — Where the prosecuting attorney and sheriff, for the purpose of defrauding the State, procured by collusion and fraud an order of court setting aside the judgment of forfeiture, the order so procured is void, and may be collaterally attacked.</p>

<p>Judgment.—Motion in Arrest of.—Sufficiency of Complaint.—Killing Stoalc on Bailroad.—If a complaint in an action for damages against a railroad company for the killing of stock does not aver that the accident occurred within the county where the action is brought, the defect may be taken advantage of by motion in arrest of judgment.</p>

<p>Insurance.—Forfeiture of Policy.—Waiver.—Deceiving Overdue Premium.—If an insurance company accept a premium overdue, with knowledge that loss has occurred within the time the premium was overdue, it thereby waives the forfeiture and restores the policy to its full force and effect, not only as, to the future but from the beginning.</p> <p>Same.—Application, Erroneous Statement in, Made by Insurance Agent. —Warranty.—An answer in the application stating that the insured held title by warranty deed when in fact she held title by descent, even if it amounts to a warranty, will not avoid the policy where it appears that a correct answer was given, but that the agent who wrote the application, probably through some misconception as to the force and purport of the question, wrote an incorrect answer of which the insured had no knowledge.</p> <p>Same.—Notice of Loss.—Denial of Liability.—Waiver of Proof of Loss. —A denial of liability by the insurance company after notice of loss obviates the necessity of furnishing proofs of loss.</p> <p>Same. — Amount of Insurance Distributed. — Becovery.—Where the amount of the policy is distributed §450 to house and §150 on personalty, the amount of recovery for loss of personalty can in no event exceed §150.</p> <p>Evidence.—As to Oontents of Letter.—Notice.—A witness may testify to the contents of a letter written to him by defendant, on preliminary proof of loss having been made; and the letter not being in defendant’s possession, notice to produce it was not necessary.</p>

<p>Negligence. — Proximate Cause. — A sewing machine company, by its employee, undertook to remove a sewing machine, which it had purchased, from the house of the woman who had formerly owned it. The machine weighed about two hundred pounds, and when the employee came the woman, the former owner, told him that he could not remove it alone without taking off the top, embracing the machinery and' gearing, and she removed the belt so the top could be taken off. The employee insisted that he could carry the machine without taking it apart if he could get it upon his shoulder. She protested, and sought to convince him that he could not, and told him that it had required two men to carry it whenever it was moved before, and called his attention to the fact that the belt was off and the top loose, and if he undertook to shoulder the machine without replacing the belt the top was likely to fall off and break. Without heeding her protestations, he asked a man who was then moving her household goods to assist him in shouldering the machine, which he undertook to do, hut when the machine was being raised it was not kept level, and the top fell off, striking against the wall and rebounding to the floor, and broke in pieces. She was standing near when the top fell, and a piece of iron struck her as it broke and destroyed one of her eyes. The employee knew that the belt was off when he undertook to lift the machine, and that there was nothing to hold the top in its place, and that it was liable to fall and break. In an action against the sewing machine company for the injury,</p> <p>Held, that the employee’s careless act in undertaking to remove the machine in the manner and under the circumstances that he did was the proximate cause of the injury, and that the fact that the top of the machine first struck the wall and then fell to the floor did not relieve the defendant from liability.</p> <p>Same. — Nor can the defendant escape liability on the ground that the injury was of such an extraordinary character that it could not have been foreseen, since the employee knew of the condition of the machine and the liability of the top to fall and break.</p> <p>Same. — The act of the plaintiff in removing the belt from the machine, since it was done with defendant’s knowledge, will not exonerate the defendant from liability.</p> <p>Same. — Nor will the fact that the man who was moving plaintiff’s household goods helped defendant’s employee to lift the machine upon his shoulder affect the right of recovery, since he was not acting for the plaintiff while so engaged, but for the employee.</p>

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

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

<p>Landlord and Tenant. — Action for Possession Before Justice of the: Peace. —Complaint.—Sufficiency of. — In an action before a justice of the peace under section 5213, R. S. 1881, to recover the possession of the leased premises, a complaint is.sufficient which alleges that the defendant rented the premises of the plaintiff for $6.25 per month payable in advance, that on a certain day there became due from the defendant to the plaintiff one month’s rent, and that since then the defendant has been unlawfully in possession of the premises because of the non-payment of said rent.</p> <p>Same. — Pleading.—Special Answer.— When Court May Refuse to Permit Filing of. — The court may properly refuse to permit an answer to be filed in such action which avers that a change was made in the terms of the lease by which the tenant was to pay rent at the end of each month, and not in advance, since the matter alleged may be shown without being specially pleaded.</p> <p>Same. — Holding Over. — Terms of Lease. — Modification o/'.-.-The plaintiff’s trustees, by oral agreement, leased certain premises to the defendant until the expiration of their term of office, the rent to be payable in advance. Defendant paid the rent for each month in advance up to the time the term of office of said trustees expired. Prior to the date of the expiration of their term of office, and the election of the new trustees, defendant paid the rent in advance for the month ending after such election. The defendant held over, and did not pay in advance at the beginning of the next month, but several days after the end of the month he made the payment, informing the trustee' authorized to collect the rent that he would not pay the rent in advance any longer. The trustee, who was authorized only to collect the rent, and not to change the terms of the lease, afterwards, under the direction of the trustees, notified the defendant that he must pay in advance or give up the property. The defendant, however, continued to pay the rent at the end of the month, and the trustee continued to accept it for several months, until an action for possession was commenced before a justice of the peace.</p> <p>Held, that the defendant, by holding over after the expiration of the tenancy, gave the plaintiff the option of treating him as a tenant for another term, and the fact that the trustee accepted the rent offered did not change the terms of the contract in regard to the payment of the rent in advance.</p>

<p>Bank Check.1 — Action on. — Complaint.—In an action by the holder of a bank check against the drawer, when payment has been refused on demand, the complaint need not allege that the drawer has no funds in bank.</p> <p>Same. — Notice of Dishonor. — Failure to Allege. — Nor is the complaint defective because it fails to allege notice of the dishonor of the cheek, where it does not appear that the drawer was injured by the failure to give notice.</p> <p>Same. — Real Party in Interest. — Estoppel.—The drawer of a bank check is estopped to deny that the payee is the real party i» interest.</p> <p>Pleading. — Breach of Covenant. — Deed.—Exhibit.—Where, in a suit upon a bank check, given for the purchase money of real estate, a breach of covenant of warranty is pleaded as a set-off, the deed in which the alleged warranty is contained is the foundation of the defence, and it, or a copy thereof, must be filed as an exhibit with or set out at length in the body of the answer.</p>

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

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

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

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

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

<p>Criminal Law. — Information.—Sufficiency of. — Immaterial Informality. — The second count of an information which begins with the statement that, “Frank Barnett (prosecuting witness) further swears,’' is not so defective that a motion to quash it should have been sustained. These words do not necessarily mean that the information was not the official statement of the prosecuting attorney. The words used, at most, amount to a mere informality, and could not have possibly injured the defendant.</p> <p>Same. — Gaming.—Renting House to be Used for. — Information.—Sufficiency of. —A count in an information charging the defendant with renting a house to be used and occupied for gaming, is sufficient if it follows the language of the statute defining the offence. The name of the person to whom the room in question was rented by the defendant, need not be averred.</p> <p>Same. — Instruction to Jwry. — Section 8079, R. S. 1881. — In a prosecution by information in two counts, the first of which charges the defendant with keeping a gaming-house, and the second of which charges the defendant with renting a house to be used and occupied for gaming, an instruction to the jury correctly states the law, which says that the jury should find the defendant guilty if satisfied beyond a reasonable doubt “that the defendant, at the time and'place mentioned in the information, did unlawfully keep the room mentioned in said information for gaming, or rent said room to others to be used and occupied for gaming.” The instruction is in substantial accord with section 2079, E. S. 1881, upon which the information was based. It was not necessary that the jury should have found that the defendant knowingly permitted the building or rooms to be occupied for gaming, or that he rented the building or room to others to be used for gaming, and it was s.o used, before a conviction could follow.</p> <p>Same. — Instruction to Jury.— When Acquittal Should be Had, — Reasonable Doubt. — The following instruction was given in a criminal case: “The defendant is presumed to be innocent of all offences charged in the information, until the contrary is proved. If you have a reasonable doubt whether his guilt has been so proved, it is your duty to acquit him.”</p> <p>Held, that the instruction stated correctly the principle of law contained in it.</p> <p>Instruction to Jury. — Refusal to Give.— When not Considered on Appeal.— The alleged error of the court in refusing to give certain instructions will not be considered on appeal where the refusal of the court is not set forth as one of the grounds in the motion for a new trial.</p>

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

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

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

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

<p>Guardian and Ward. — Conversion.—Liability of Defaulting Guardian’s Estate. — In Whose Name Action May be Drought. — Where a guardian of infant wards converts the assets in his hands to his own use, and dies without having refunded the same, a claim may be filed and maintained against his estate by the succeeding guardian. Such action may be maintained in the guardian’s own name.</p>

<p>Criminal Law. — 1Hot.—Affidavit and Information. — Sufficiency of. — An affidavit and information charging that “on,” etc.,“in” etc., A.,B. and C. “did then and there, in a riotous, tumultuous, and violent manner, assemble themselves together, and then and there, in a riotous, tumultuous, and violent manner, having then and there the present ability so to do, unlawfully attempt to commit a violent injury on the person of said affiant by then and there violently and unlawfully threatening to beat, cut and shoot said affiant, contrary to the form of the statute,” etc., state facts sufficient to constitute a charge of riot. The affidavit and information were sufficient without the allegation “ having then and there the present ability so to do.”</p>

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

<p>Execution. — Levy of on Personal Property. — Lien.—Continuance of. — Return Pay. — Sheriff.—The lien of the levy of an execution on personal property can not continue for the protection of the officer, as against the levies of writs on other judgments, longer than thirty days after the return day of the execution, unless a second execution has been issued.</p>

<p>Erom the Madison Circuit Court:</p>

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

<p>Bill of Exceptions. — When Not Presented in Season. — Where the motion ' for a new trial was overruled on the third day of October, 1889, and forty days from that time were given in which to file a bill of exceptions, a bill of exceptions presented to the judge for his signature on the 13th day of November, 1889, was’ not presented in season. By excluding the first day, and including the last, the bill was not presented until the forty-first day. A bill of exceptions does not become a part of the record unless it has been presented to the judge for his signature within, the time allowed.</p>

<p>Negligence.—Master and Servant.—Master Entrusting Performance of Duty to Fellow-Servant.'—If an employe be injured while in the service of his employer, by the negligence of a coemploye engaged in the same general employment, when the master has exercised reasonable care in the selection of such coemploye, the employe who is thus injured can not, as a general rule, recover damages of his employer ; but if the master entrusts the performance of a duty he owes directly to such injured servant to a fellow-servant, the negligence of the latter is the negligence of the master, and the master is liable to another servant who is injured by such negligence.</p> <p>Same.—Stone Standing on Edge Falling on Servant.—(See opinion for facts and liability J</p>

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

<p>Trespass. — Entry by Authority of Law. — By License from Parly. — Trespass Ab Initio. — Where an entry, authority or license is given any one by the law, and he abuses it, he becomes a trespasser ab initio; but where an entry, authority or license is given by the party, and he abuses it, then he must be punished for his abuse, but will not be a trespasser ab initio.</p> <p>Instruction to Jury. — Issues.—An instruction not within the issues of the case is erroneous.</p> <p>License. — Consideration.—A consideration is not essential to the validity of a license.</p> <p>Landlord and Tenant. — Entry by Lessor to Make Repairs. — Exceeding Terms of License. — Trespass Ab Initio. — Where the lessor, in pursuance of a license from the lessee, enters upon the leased premises during the term to make repairs, and after the entry exceeds the terms of the license, he does not thereby become a trespasser ab initio, but is liable only for the acts done in excess of his authority.</p> <p>Same.— Wrongful Entry. — Abuse of Authority Must be Pleaded Specially. — In an action by the lessee against the lessor for a wrongful entry, where the lessor pleads as a defence a license and an agreement to enter, an abuse of the authority given can not be shown under the general denial, but must be pleaded specially.</p> <p>Same. — Instruction.—In such action, where the lessee replies to such defence by the general denial only, an instruction to the jury that the lessee is entitled to recover if the terms of the license were exceeded after the entry, is erroneous, because not within the issues.</p> <p>Same. — Instruction.—The lessor, after pleading the license in one paragraph, alleged in another an extension of the lease in consideration that the lessee would permit the lessor to enter upon the premises before the expiration of the time named in the original lease to make repairs. The court, which had already charged that a violation of the terms of the license would make the lessor a trespasser a& initio, charged as to the agreement that the instruction in reference to the license would apply to the agreement.</p> <p>Meld, error, as charging, in effect, that if the lessor violated a part of the agreement, he thereby became liable in damages for a total violation.</p>

<p>Pleading.—Complaint, Necessary Allegations.—Master and Servant.— Bailroad.—Defective Track.—Personal Injury of Brakeman.—In an action by a brakeman to recover damages occasioned by the defective condition of the railroad track, the complaint must allege, to show a good cause of action, that the defective condition of the track at the place where defendant was injured was the result of defendant’s negligence; or, if not due to defendant’s negligence, that defendant knew of the defective and dangerous condition of the track a sufficient length of time prior to the accident to have repaired the same in the exercise of reasonable diligence; or that it was defective and dangerous for such a length of time prior to the accident, that defendant, in the exercise of reasonable care, should have discovered and repaired it.</p> <p>Sajie.—Notice of Defective Condition, When Necessary to Allege, When Not.-—If the defendant placed the track in such defective and dangerous condition, it is not necessary to aver that defendant had notice thereof; otherwise such allegation is necessary.</p> <p>Railroad.—Negligence.—Change or Bepair of Track.—Care.—A railroad company has the right to make necessary changes or repairs in its track, but in making such changes or repairs, it is required, in the discharge of its duty to its employes, to use reasonable care to provide and maintain the same in reasonably safe condition for the performance of the duties required of its employes. Ordinarily it would be negligence to leave such work, at any time, in an unfinished condition longer than would be required, under the circumstances, in the exercise of reasonable care and diligence, to> complete the work.</p> <p>Same.—Personal Injury of Brakeman.—Contributory Negligence.—Defective Track.—A brakeman has the right to assume that the track is in a reasonably safe condition; and the fact that he might, on examination with his lantern, have disclosed the defective and dangerous condition of the track before stepping thereon between the cars, is not sufficient to charge him, as a matter of law, with contributory negligence.</p> <p>Evidence.—Bes Gestae.—An Injured Brakeman.—Statements made by an injured brakeman after he had been removed two hundred feet distant from the place of the accident, and ten minutes after he was injured, in relation to the manner in which the accident occurred, are not part of the res gestae.</p>

<p>Cbiminal Law.— Unlawful Sale of Intoxicating Liquors.—Sufficiency of Indictment.—An indictment charging that defendant “did * * unlawfully sell to * * at and for the price of five cents, a less quantity than a quart at a time, to wit, one pint of * * beer, he the said * * not then and there having a license under the State law to sell intoxicating liquors,” sufficiently states a criminal offense.</p>

<p>Pkomissoey Note.—Person Not Signing Note, Compelling Plaintiff to-Join as a Defendant.—The payee of a note can not be compelled to join as a party a person in a suit against the maker, who receives a part of the proceeds of the note and who agrees to pay such note.</p> <p>Pleading.—Cross-Complaint.—Chancery Practice.—The code does not, provide for a cross-complaint, but the chancery practice of determining the rights of the parties on each side of a case is recognized by our decisions, and in such cases the rules of pleading and the practice of chancery courts, as modified by the spirit of the code, govern.</p> <p>Same.—Discretionary Power of Court, Cross-Complaint.—Delaying Opposite Party.—Under the statute providing that the court “may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves,” the power to determine a controversy between the parties on the same side, as between themselves, is a discretionary one, and should not be exercised to the detriment of the opposing party by delaying his judgment. R. S. 1881, section 568.</p> <p>Practice.—New Parties.—A defendant to an action can not insist that a new party defendant be brought in to settle a controversy purely among the defendants which does not affect the plaintiff.</p> <p>Same.—Sufficiency of Petition to Bring in New Parties.—To make a petition sufficient, under section 277 (R. S. 1881), to bring in a new party, it must be shown that the party sought to be brought in is a, necessary party, and it must contain a prayer for relief.</p> <p>Same.—New Parties.—Demurrer Sustained to a Cross-Complaint.—“Interpleader Cross-Complaint,” Party to.—If a person is only a party-defendant to a cross-complaint, and his demurrer is sustained to such cross-complaint, he can not be required to answer a separate and distinct pleading, called an “Interpleader Cross-Complaint,” for he is not a party thereto.</p> <p>Demurrer.—Argumentativeness.—Argumentativeness is not a cause for demurrer, and to overrule a demurrer to an argumentative denial is not error. To sustain a demurrer to such answer is not erroneous if a general denial is on file, under which the same facts can be proven.</p>

<p>Special Finding. — General Verdict.— When Will Stand. — A general verdict must stand, unless the special finding of facts, taken as a whole, is so inconsistent with the general verdict that both it and the special finding can not stand together, the antagonism being apparent upon the face of the record without looking to the evidence.</p> <p>Same. — General Verdict.— Presumptions in Favor of. — Upon a motion for judgment, on a special finding of facts, every reasonable presumption will be indulged in favor of the general verdict, and if it be possible to reconcile it with the special finding upon any supposable state of facts provable under the issues, the motion will not be sustained.</p> <p>Same.— When Will Control. — It the answers to interrogatories, taken together, show that the party in whose favor the general verdict is rendered is entitled to a larger sum than that awarded him in the general verdict, the special finding will control.</p> <p>Same. — Motion for Judgment on.— What Court Will Consider. — While the court, upon a motion for judgment on the findings of the jury in answer to interrogatories, will not look to the evidence, it will consider the pleadings, and will regard the issues.</p> <p>Same. — Answers to Interrogatories. — Motion for Judgment on. — Overruling of —Bill of Exceptions. — The action of the court in overruling a motion for judgment on the answers of the jury to interrogatories need not be shown by bill of exceptions.</p> <p>Promissory Note. — Answer.—Total Failure of Consideration Pleaded.— Partial Failure May be Shown — Under an answer setting up facts showing an entire failure of consideration on a promissory note, a partial failure may be proved.</p> <p>Same. — Partial Failure of Consideration.— When Recovery Not Affected.— Where, in a suit on a promissory note, the matter as to which there has been a partial failure of the consideration is so uncertain in its character that there is no method by which the damage arising therefrom can be estimated or determined, the partial failure will not affect the recovery.</p> <p>Quantum Meruit. — Special Contract — Recovery.—In an action on a special contract there can not be a recovery on a quantum, meruit.</p> <p>Attorney and Client. — Promissory Note for Services. — Measure of Recovery. — The general employment of an attorney in a cause, as to defend against an indictment, contemplates the performance by him of all service that may be ne'cessary and proper until the termination of the case. When the contract of employment fixes the amount of his compensation, and a promissory note is given him for such fee for service to be performed, a court, or jury, in an action on the note, can not inquire into tbe matter for the purpose of making a contract for the parties. If there has been no fraud, the consideration can not be attacked on the ground of its inadequacy. The measure of recovery is the amount of the note, and the jury have no right to measure the amount of recovery by what it finds to be the value of the services actually rendered by the attorney.</p>

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

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

<p>Proceedings Supplementary to Execution. — Fraudulent Conveyance.— Trust. — Pleading.—In a proceeding supplementary to execution under sections 815-822, B. S. 1881, the fraudulent character of a transfer of property may be inquired into, but the plaintiff must disclose in his complaint or affidavit the nature of the claim he seeks to enforce against the third party, and if he relies upon a fraudulent transaction between the judgment debtor and such third party, there should be proper averments thereof. And so if he regards the transaction as amounting to a trust, he should set out the facts constituting the trust.</p>

<p>Appellate Court Practice.—Weight of Evidence.—Preponderance.— The appellate tribunal will not weigh conflicting evidence and determine which side has the preponderance.</p> <p>Same.—Excessive Recovery.—Question, Sow Raised.—Before the ques. tion of excessive recovery can be raised on appeal, it must first have been made the ground of a motion for a new trial.</p> <p>Same.—Argument in Support of Error Assigned.—What not Sufficient.— To simply state that instructions do not state the law, and should not have been given, without presenting any argument pointing out wherein they are erroneous, or citing any authorities in support of the assertion, is not such discussion of the question as will be deemed sufficient to require its consideration.</p> <p>Witness.—Claimant Against Decedent’s Estate.— When Competent.-— Where a claimant has been called to the witness stand, and was sworn and testified as a witness for the decedent’s estate, the barrier to her competency as a witness was removed, and she may testify in her own behalf.</p> <p>Evidence.—Tax-assessment List.—When Properly Excluded.—Where, in an action on a claim against a decedent’s estate the preliminary proof shows that the assessment list offered in evidence against the claimant was not hers, and that she did not sign it, there was no error in excluding the tax list from the evidence.</p>

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

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

<p>Arbiteation.—Award.—When Upheld.-—• Intendment— Technical Objections:—When an award has been made by arbitrators, the policy of the law forbids that the controversy should again be opened, except it be impeached by fraud, corruption, partiality, or undue means, or other misconduct on the part of the arbitrators; and for the purpose of sustaining an award, technical objections should be disre-. garded, and every fair intendment should be drawn to uphold it.</p> <p>Same.—Correcting or Modifying Award After it has been Filed in Court. —Miscalculations, misdescriptions, and imperfections in form in the award, when apparent upon the face of the record, may be corrected or modified after the award has been filed in court.</p> <p>Same.—Motion to Strike out Exceptions.— When not Error to Sustain.— Where exceptions to an award are based upon facts extrinsic to the record, and no fraud or misconduct is charged against the arbitrators, which objections could have been presented to the arbitrators and a determination thereon had before the award was completed, it was not error to sustain a motion to strike out such exceptions.</p> <p>Same.—Scope of Inquiry .—Exception to Award.—Partnership.—Evidence.—Where the scope of the inquiry of arbitrators is limited to partnership matters, they exceed their authority when they go beyond partnership affairs; and when such question is presented by exception, evidence may be heard for the purpose of determining whether or not an item is embraced within the subject-matter of the controversy.</p>

<p>Master and Servant. — Railroad.—Action for Damages Against. — Loss of Services of Minor. — Complaint.—Dangerous Condition of Machinery. — Contributory Negligence. — Sufficiency of Averment. — In an action by a father against a railroad company to recover damages for the loss of services of his minor son, who is alleged to have been killed by the carelessness of such company, in that he was set at work at a hazardous engagement without being given sufficient warning and instruction to enable him to avoid the injury, the complaint did not aver that the deceased had no means of informing himself of the dangerous condition of the boiler which he was ordered to work upon, before the accident occurred, but did aver the youth, inexperience and ignorance of the decedent, and that the injury occurred without his fault.</p> <p>Held, that the complaint after verdict was sufficient.</p> <p>Held, also, that an averment in the complaint that the plaintiff was free from fault, negatived contributory negligence.</p> <p>Same. — Defective Machinery. — Injury Resulting from.— When Servant can not Recover. — Latent Defects. — The principle of law that a servant can not recover from his master for an injury resulting on account of a dangerous defect in the service, if he had the same means of discovering the defect as the master had, only applies where the servant is under the same obligation as the master to know the condition of the same. While a servant may have an opportunity, he is not bound to make a critical examination of the condition of an implement or item of machinery before using it to ascertain if it contains any latent defects, unless so required by the terms of his employment.</p> <p>Declarations. — Made by Minor. — Action by Father for Loss of Service. — Inadmissibility of Declarations as Admissions. — Res Gestee. — In an action by a father against a railroad company to recover damages for the loss of the services of his minor son, who it was alleged had been killed through the carelessness of the defendant company, a declaration of the deceased, made substantially at the place of the injury and in the presence of the engine which inflicted the injury, and within from two to five minutes after the accident, to the effect that nobody was to blame but himself, etc., is not admissible as an admission. The services of the deceased during his minority belonged to the plaintiff as his lawful right and it was not within the power of the deceased to have legally defeated this right. His admission could not therefore bind the plaintiff. Such a declaration is admissible, however, as a part of the res gestee.</p>

<p>Actions Consolidated.—Inherent Power of Court.—When May Be Exercised.—The power to consolidate causes is one of the inherent powers of the court, when the consolidation will expedite its business, prevent costs and a multiplicity of suits, when one action will answer all the purposes of justice.</p> <p>Same.—Appeals.—When May Be Consolidated.—Where an appellant, in the Appellate Court, after the term at which the judgment appealed from was rendered, flies his complaint for a new trial on account of new evidence discovered after the term at -which judgment was rendered, to which a demurrer was sustained, from which decision an appeal is also prosecuted to the Appellate Court, the two causes, may be consolidated.</p>

<p>Prom the Clinton Circuit Court. ■</p>

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

<p>Sale. — Executed.—Buyer Takes with all Defects in Absence of Warranty.— Where the sale is an executed one, the buyer takes the thing sold with all the defects, if there be neither warranty nor fraud.</p> <p>Same.— Sound Price.— Warranty.— A sale for a sound price does not imply a warranty.</p> <p>Same. — Unsound Animal. — Where there is no wilful misrepresentation or artful device to disguise the character or conceal the defects of the thing sold, the vendee is bound by the contract, even though the vendor got a decided advantage in the trade, and put off on the vendee a defective article, such as an unsound horse,</p> <p>Same. — Latent Defects. — Silence of Seller.— Warranty. — The mere fact that the seller is aware of a latent defect in the animal will not amount to fraud if he fail to disclose it, unless he made some statement or made use of some act or device calculated to deceive the buyer, or to induce him not to make inquiry. His mere silence is not such an act as will constitute fraud, and no warranty can be implied therefrom.</p> <p>Same.— Warranty by Auctioneer.— When Seller not Bound. — The seller will not be hound by express warranties made by the auctioneer, or other special agent, unless he has specifically authorized such warranty.</p>

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

<p>Pleading.—Counterclaim.—Under the code, a counterclaim embraces both recoupment at common law and the cross-bill in equity.</p> <p>Replevin.—General Denial.-—Anything which will tend to defeat plaintiff’s claim of title, or right of possession, in replevin, may be given in evidence under the general denial.</p> <p>Execution.—Levy on Property of Person Assuming Judgment Debt.—If a stranger to a judgment agree to pay it of£, that will not authorize the levy of an execution issued thereon, upon such person’s property.</p> <p>Same.—Consolidation, Levying Execution on Property of Consolidated Companies for debt of old Company.—If two corporations consolidate under the name of an execution defendant corporation, and the latter supersede the old corporation, assuming all the liabilities, and succeeding to all its rights and privileges, such execution against the old binds the personal property of the new corporation.</p> <p>Same.—Bale of Stranger’s Property.—The sale of the property of a person not a party to a judgment and execution is void.</p>

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

<p>Divorce. — Allowance Pending Action. — Appeal.—An appeal will lie directly from an order making an allowance to attorneys for services rendered to a wife in an action for a divorce, without awaiting the final judgment in such action.</p> <p>Same. — Order Making Allowance. — How Enforced. — While an order making an allowance may be enforced by the court making it, the person having the right to enforce payment may waive this mode of enforcing his claim and bring an action on the order.</p> <p>Same. — Attorney’s Fees. — Action for. — Defence.—Where, pending an action for divorce, the court makes an order that the defendant pay to the wife’s attorneys a certain sum within a given time to enable her to prepare her case for trial, the fact that subsequent to the order the wife voluntarily dismisses the action and returns to her husband, is no defence to an action on the order, where the defendant has taken no steps to have the order rescinded or modified.</p>

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

<p>Married Woman.—Statute Construed.—The different sections of the-statute declaratory of the rights of married women, and for their protection, must all be construed together.</p> <p>Same.—Suretyship.—Whenever the result of a transaction is such as to impose upon the wife’s property a liability to answer for the debt of another, she must be regarded as the surety and entitled to the protection of the statute, whether she be a party to any written contract or not.</p> <p>Same.— Suretyship.— Seal Estate.— Personal Property.— Mortgage.— Pledge.—There is no difference in principle, between a mortgage of her real estate and a mortgage or pledge on her personal property.</p> <p>Same.—Suretyship.—Separate Property.— Mortgage.—Pledge.—Whenever a married woman either pledges or mortgages her separate property to secure the debt of another, she occupies the position of a surety within the statute.</p> <p>Interrogatories to Jury:—Judgment on Answers to.—Scope of Consideration.—Evidence.—-In determining the right of a party to judgment upon answers to interrogatories the court will not consider what evidence was introduced on the trial, but simply what might have been properly offered under the issues.</p> <p>Estoppel.—Married Woman.—There can be no element of estoppel as to a married woman where all the parties are fully conversant with her rights in the matter in controversy.</p>

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

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

<p>Pleading. — Justice of the Peace. — Appeal.—The rules of pleading before justices of the peace are applicable in the circuit court on appeals from justices, and all defences except the statute of limitations, set-off, matter in abatement, and the denial of the execution or the assignment of a written instrument, may be given in evidence without plea.</p> <p>. Landlobd and Tenant.— Termination of Tenancy by Notice to Quit. — Damages Pecoverable. — Where the tenancy has been terminated by a notice to quit,the landlord is entitled not only to recover damages for the subsequent unlawful detention of the property, but also to recover the rent-which accrued prior to the determination of the lease, while the possession was held thereunder lawfully, and which remains due and unpaid.</p> <p>Same. — Notes Given as Collateral Security for Pent. — Action for Possession.— Merger in Judgment. — Where a tenancy is terminated for non-payment of rent, and by summary proceedings under the statute a judgment for possession of tbe demised premises and for damages for tbe detention thereof is recovered, notes given as collateral security for the rent are not necessarily merged in the judgment recovered, but they may be surrendered for cancellation, and be merged in such judgment.</p> <p>Same. — Removal of Tenant by Summary Proceedings. — Rent.—Where for nonpayment of rent a tenant has been removed from the premises by summary proceedings under the statute, he can claim exemption from liability for rent as such for so much of the term as has elapsed after the termination of the relation of landlord and tenant; and in a suit on the lease for rent only the rent accrued up to the determination of the lease can be recovered.</p> <p>Same. — Cancellation of Notes. — In such case it is proper to require negotiable paper given and received as collateral security for the rent for the term, and still in the hands of the lessor, to be brought into court and surrendered for cancellation.</p> <p>Same. — Merger.—Finding.—In a suit upon notes given for rent, a finding that in summary proceedings under the statute, before a justice of the peace, to remove the tenant from the leased premises for non-payment of rent, a judgment was rendered for possession of the said premises and for damages for the detention of the same, does not support a conclusion of law that the notes were merged in the judgment.</p> <p>Same. — Rights of Indorsee. — Although negotiable notes are given for the rent, if in an action by the lessor against the lessee the notes, still in the hands of the former, are treated by the parties, and by the court, as collateral security for the rent, and are surrendered for the use of the lessee, or for cancellation, the subsequent indorsement of the notes by the lessor after their maturity confers no right of action upon the indorsee.</p>

<p>Practice.—Motion to Strike Out Pleading.—Bill of Exceptions.—Order of Court.—A motion to strike out a pleading, with the rulings of the court thereon, can be shown only by a bill of exceptions or by special order of court.</p> <p>Appellate Court Practice.—Weight of Evidence.—Verdict.—Parties in Family Belation.—Law and Fact.'—The court will not disturb a verdict upon the weight of the evidence bearing upon the question •of promise to pay for services by parties standing in the family re'lation, where the existence of such promise is a question of fact for the jury.</p> <p>Assignment of Errors.—Motion to Strike Out Pleading.—How Assigned.—A ruling of the court on a motion to strike out a pleading must be separately assigned as error, and not as a ground for a new trial, and must be presented by bill of exceptions or special order of court.</p> <p>Evidence.—Exclusion of Testimony.—Question, How Saved.—The exclusion of testimony can only be made available error by asking some pertinent question of the witness, and, if objected to, stating to the court what testimony the witness would give in answer to the question proposed.</p>

<p>Evidence.—Admissions.—Vendor and Vendee.—Sale.—In an action by the guardian of remaindermen against the life tenant and others for saw logs alleged to have been sold by the life tenant, it was not error to admit evidence of admission of the alleged sale, by the alleged purchaser, who was also a party defendant, made in the absence of the vendor.</p> <p>Same.—Limitation of Application.—Instruction to Jury.—If the vendor desires to have such evidence limited as affecting only the purchaser, he should have asked the court to instruct the jury to that effect.</p> <p>Same.— Vendor and Vendee.—Sale.—Privity in Design.—To make such evidence competent, as affecting the purchaser, it was not necessary to show that he and the vendor had a joint interest or privity in design.</p> <p>Same.—Immaterial.—Harmless Error.—Evidence of the sales of other timber, ten years previous to that in controversy, was immaterial and harmless.</p> <p>Same.—Irrelevant to Issues.—Harmless Error.—Evidence which is irrelevant to the issue and could not have prejudiced the defendant in any event, is harmless.</p>

<p>Partition Fence.—Bight to Construct.—Liability for Injury to Stock• While in Process of Construction.—Negligence.—An adjoining landowner has the right to construct a fence on the partition line, subject to agreement and legal conditions, but he must use due care in its erection and leave it in a reasonably safe condition when completed, or respond in damages for injuries to stock of another lawfully pasturing in adjoining premises to his, resulting from such negligence in constructing or defective condition after construction, in the absence of contributory negligence on the part of the complaining party.</p>

<p>•Judgment.—On Answers to Interrogatories.—When Beversible Error.— It is reversible error to refuse to render judgment on the general verdict where the answers to interrogatories are not sufficient to overthrow the general verdict.</p>

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

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

<p>Judgment.—By Default.—Application to Set Aside Default.—Notice.— When an application is made during the term at which the judgment by default was taken, the proper proceeding is by motion without notice. But if made after the term, the application is a new proceeding in the nature of a complaint, and requires notice. However, notice can not be insisted on as a prerequisite where there is an appearance and demurrer.</p> <p>Same.—By Default.—Application to Set Aside.—When may be Made.— The defendant could have asked and. obtained leave at the same term of court to file an amended complaint or application to set aside the default, and had the cause been continued till the next term he could have filed an amended complaint then. But the judgment by which the court overruled the application was a final determination of the question; and such ruling remained in fien only during such term, unless the cause was postponed until next term.</p> <p>Pkactice.—Motion to Strike out Motion.—Effect.—A motion to strike out another motion, if sustained, would be equivalent to overruling the first motion.</p>

<p>Real Estate.—Trespass and Wrongful Appropriation.—Averments as to Ownership.—Where, in a complaint to recover damages for a trespass upon and wrongful appropriation of land, the averments as to ownership show title in the plaintiff, the complaint will withstand a demurrer, although such averments are not as clear and specific as the rules of careful pleading require.</p> <p>Same.—Presumption as to Continuance of Ownership.—An averment that the plaintiff was the owner of the land on the 26th of May, and that the wrong complained of occurred on the 28th of the same month, is sufficient to show ownership on the latter day, as ownership and occupancy are presumed to continue until the contrary is made to appear.</p> <p>Same.—JBailroad.—Street.—Grant of Bight of Way by Municipal Authorities.—Damages.—Abutting Owner’s Bight of Action.—The owner of land abutting on a highway or street is not debarred from recovering damages from a railroad company constructing a trackjthereon, by the fact that the municipal authorities have granted the company a right of way over such street or highway.</p> <p>Same.—Proof as to Quantity of Land Taken.—It is not essential to the maintenance of the action, that the plaintiff should prove the exact width or dimensions of the land appropriated, if it be shown that some land was taken.</p> <p>Same.—Duration of Injury.—Inferences by Jury.—Where a railroad company wrongfully appropriates a strip of ground and constructs thereon a side track, the probable duration of the injury may be inferred by the jury from the facts as to the use actually made of the siding and of the land upon which it is constructed.</p> <p>Same.—Adverse Possession.—Occupancy by Third Person.—The erection of telegraph poles upon the ground in controversy by another corporation, which permitted the railroad company to use one of its wires, can not be made the basis of a claim of title or adverse possession by the latter.</p> <p>Same.—Assessment of Damages—Special Statute—Remedy by Independent Action.—Where the owner of land acquiesces in the appropriation thereof by a railroad company, he is not bound to proceed under the special statute for the assessment of damages, but may recover in an independent action for the permanent injury sustained.</p>

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

<p>Services. — Payment of. — Request for.— What Law Implies. — Presumption May be Overcome. — Evidence.—Where one is employed in the service of another for any period of time,the law implies a promise to pay. And where one accepts and retains the beneficial results of another’s services, the lav/ will imply a previous request for the services, and a promise to pay for them. The presumption, however, that the services sued for were rendered under an implied promise that they should be paid for, may be rebutted by evidence that the relation between the parties was such as to exclude the inference that they were dealing on the footing of contract.</p>

<p>Negligence.—Proximate Cause.—Bailroad.—Master and Servant.— Open Switch.—Absence of Switch Light.—Killing of Fireman.— Violation of Buie by Engineer.—Where a railroad company negligently leaves a switch open, whereby a passenger train proceeding upon the main track in the night time runs into the switch and collides-with a freight train standing upon the side track, killing the fireman of the passenger engine, without his fault, the company is liable, its act being a proximate cause of the injury, although, the switch light having accidentally gone out sometime prior to the collision, the engineer did not stop his train upon observing that there was no light, thus violating a rule of the company providing that the absence of a light was to be regarded as a signal of danger.</p> <p>Same.—Contributory Negligence.—Absence of Sioitch Light.—Duty to Observe.—In such case the fireman is not shown to have been guilty of contributory negligence, although required by a rule of the company to keep a constant lookout ahead when not engaged in firing, so as to give notice of danger to the engineer, where it appears that his duties and circumstances at the time were such that he could not have discovered the absence of the switch light in time to have-given the engineer warning to stop the train, and where the engineer had notice that the light was not burning at least as early as the fireman could have communicated knowledge of such fact to him and had determined to proceed without stopping his train. Boss, J., dissents.</p>

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

<p>Instructions to Jury.— Directing Verdict— Where the evidence in a cause, without material contradiction, shows a certain fact to be established, the jury may be so instructed.</p> <p>Conversion.— Who Liable. — In an action for the conversion of a quantity of potatoes, it appeared that the plaintiff consigned a car-load of potatoes to a certain person, to be delivered to the purchasers as they demanded them. Such consignee had no authority to sell. An agent of the Standard Oil Company, to whom the plaintiff was indebted, purchased the potatoes of the consignee, knowing he had no authority to sell, and sold them to the original purchasers, and credited the plaintiff with the amount received, after paying the consignee for freight, etc., and his own expenses. The purchasers had knowledge of all the facts.</p> <p>Held, that all the parties to the transaction were jointly liable for the conversion, and that the original purchasers, having abandoned the contract with the plaintiffs, and having purchased the potatoes from the agent of the Standard Oil Company to assist him in collecting the company’s debt, can not be heard to say they purchased the potatoes from the plaintiff, and that their only liability is in contract.</p> <p>Same. — Interest.—Measure of Damages. — In estimating the measure of damages in such action the jury had a right to add interest on the value of the potatoes from the day of the conversion.</p> <p>Same.— Value of Goods Converted. — As the plaintiff had no opportunity to inspect the potatoes at the time of the conversion, the jury were justified in finding for him the highest price and the largest quantity proved, so that the wrong-doers could not, under any phase of the case, profit anything by their acts.</p> <p>Same. — Plea of Payment. — No Evidence to Support. — Instruction.—Although there was a plea of payment, there was no evidence to support it, and the court did not err in failing to direct the attention of the jury to the question of payment.</p> <p>Same. — Evidence.—The plaintiff having been asked on cross-examination as to whether the consignee was his agent for the purpose of handling any goods for him about the time of the conversion, and whether he conveyed any goods to him, the court did not err in excluding the answers to these questions unless the inquiry was limited to the goods in controversy.</p>

<p>Jurisdiction. — Justice of the Peace. — Defective Summons. — Appeal to Circuit Court. — Effect of Appearance. — Where a party has been sued before a justice of the peace, the service of the summons being defective, and judgment is taken by default, and the defendant files his appeal bond within the statutory period, and takes an appeal to the circuit court, such an appeal constitutes an appearance, and confers jurisdiction upon the circuit court over the defendant. It is a waiver of the defective summons, and it was proper for the circuit court to overrule the defendant’s motion to quash the summons and dismiss the action.</p>

<p>Agency.—Nonliability of Agent for Nonfeasance of Duty Owing the Principal.—If an agent fail to perform a duty which he owes to his principal, and by reason of such nonperformance or neglect of duty a third person sustains injury, no action can be maintained against the agent by such third person on account thereof.</p> <p>Same.—Rental Agent.—Failure to Keep Premises in Tenantable Condition.—Nonliability of Agent.—The failure of an agent employed to look after, rent, collect rents, pay taxes, and make the necessary repairs of certain premises, and keep them in a tenantable eondidition, is nonfeasance of a duty owing his master, and not misfeasance, and does not render the agent liable to a third party.</p>

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

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

<p>Crimustai. Law. — Verdict.— When will Not be Disturbed. — Gift of Liquor. — Evidence. — A judgment in a criminal action will not be disturbed where there is some evidence tending to sustain the verdict on every material point. For a statement of the evidence tending to show a gift of intoxicating liquor on Sunday, to be drank as a beverage, etc., see opinion.</p>

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

<p>Malicious Prosecution. — Pleading.—Sufficiency of Complaint.— In an action for malicious prosecution begun by a capias, a complaint which alleges that the affidavit for capias was made maliciously and without probable cause is not defective because it does not also allege that the writ upon which the arrest was made was procured maliciously and withou t probable cause.</p> <p>Same.— Voluntary Dismissal-of Action Complained of.■ — Evidence.—Evidence explanatory of the voluntary dismissal of the action complained of is admissible on behalf of the defendant, and it is error to exclude it.</p> <p>Same. — Evidence.—Where the existence of the debt on which the alleged malicious prosecution was instituted was in controversy, it is error to refuse to permit the defendant to testify that a settlement had been made prior to the institution of the suit, in which it was agreed by the parties that the plaintiff was indebted to the defendant.</p>

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

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

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

<p>Landlord and Tenant. — Lease.—Surrender and Release of by Parol.— A written lease, not under seal, may be surrendered and released by parol.</p> <p>Same. — Agreement to Release Lessee. — Surrender of Possession to Another Tenant. — Where a lessor agrees to accept a surrender of the premises, and release the lessee from liability under the lease, and accept another tenant in his stead, and in pursuance of such agreement the lessee surrenders possession to the new tenant, these facts constitute a surrender of possession to the lessor.</p> <p>Same.— Consideration fora Release. — The sale by the lessee of an established business to the new tenant, and the putting of such tenant in possession, constitute a sufficient consideration for the release by the lessor.</p> <p>Practice. — Action for Rent — Right to Open and Close. — Where, in an aotion on a lease providing for attorney’s fees for its enforcement, the burden of the issues is on the defendant, and the defendant admits . that if the plaintiffs recover any judgment they can recover attorney’s fees for the amount alleged in the complaint, the plaintiffs are not entitled to open and close. Camp v. Brown, 48 Ind. 575, distinguished.</p>

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

<p>Decedents’ Estates. — Statement of Claim Against. — The statement of a olaim against an estate is sufficient if it apprises the administrator of the nature of the claim, the amount demanded, and contains sufficient substance to bar another action for the same demand.</p> <p>Same. — Agreement to Pay Promissory Note After Death. — Testamentary Disposition. — A written instrument executed by the decedent before his death, which acknowledges an indebtedness by the decedent for money received, and contains a promise to pay after his death, is a contract in the nature of a promissory note, and not an attempted testamentary disposition of property, and may be enforced against his estate.</p> <p>SAME. — Annual Settlement of Accounts. — Provision for. — The fact that such instrument also contains a provision for annual settlements, to be indorsed on the agreement, of mutual accounts that might be made, will not destroy or impair the contractual quality of the instrument.</p> <p>Same. — Claim.—Sufficiency of Statement. — Such instrument, when followed by an affidavit that the account, after deducting all credits, set-offs, and deductions, to which the estate is entitled, is due and unpaid, is a sufficient statement of the claim.</p> <p>Same. — Amendment of Claim. — Where, after the transfer from the appear- ‘ anee to the issue docket, of a claim against an estate, an additional statement of the claim is made at a subsequent term, it may be used as an amendment, or second paragraph of the claim, and need not be placed on the appearance docket.</p> <p>Same. — An instrument containing an admission of an indebtedness by the decedent, and a promise to pay after his death, will, if duly authenticated and introduced in evidence, support a judgment against his estate.</p> <p>Same. — Payment in Instalments. — Judgment.—If such instrument provides that the debt shall be paid in instalments, and some of the instalments are not yet due, the judgment, upon proof of the claim, need not be rendered for a gross sum, but the administrator may be permitted to pay the debt in instalments as they become due.</p>

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

<p>Mortgage.—Statutory Penalty for Failure to Satisfy Mortgage.—Complaint, Sufficiency of.—Presumption.—In an action to recover the §25 forfeiture for failure and refusal to satisfy a mortgage upon demand after the debt secured by the same has been paid, the complaint is sufficient which establishes the relation of mortgagor and mortgagee, for the relationship once being established, it will be presumed to continue until the contrary is made to appear.</p>

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

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

<p>Costs. — Taxation, of. — Action of Trover. — Where the unlawful conversion of the property is the gravamen of the action, it is an action of trover, and if the plaintiff recovers more than five dollars the costs of the action should be taxed against the defendant. See section 592, B. S. 1881. Taylor v. Blount, 7 Blackf. 38, distinguished.</p>

<p>Bastabdy. — Notice by Publication. — Personal Judgment. — A personal judgment can not be rendered in a bastardy proceeding against a defendant who has not been arrested or in custody, and upon whom no process has been served except notice by publication, even though he be a resident of the State, but temporarily absent therefrom. The statutes of this State nowhere provide for notice by publication in bastardy cases. The process must be either by a warrant or capias.</p> <p>Judgment. — Against Person'. — When Void. — Jurisdiction.—As a general rule, a personal judgment is absolutely void where it appears upon its face that the court had no jurisdiction either of the person or the subject-matter.</p>

<p>Railroad. — Negligence.—Defective Crossing. — Action for Injury to Horse.— Sufficiency of Complaint. — In an action for an injury to plaintiff’s horse at a railway crossing, alleged to have been carelessly constructed, and permitted to remain in an unsafe condition, a complaint is sufficient which alleges that the plaintiff had no knowledge of the unsafe condition of the crossing, and that while the plaintiff’s employee was riding the horse over the crossing in a careful manner, one of its feet was caught in a space improperly between the iron on one side o£ the railroad track and the boards of the crossing, and the horse in trying to extricate itself received such injuries that it was rendered worthless.</p> <p>Same. — Notice of Defect. — Evidence.—In such action evidence tending to show the defective condition of the crossing some months previous to the injury, and that one of the horses driven by the witness was caught in the same way and at the same place, is admissible on the question of notice.</p> <p>Same. — Instructions to Jury. — For a series of instructions considered and held to state the law correctly, see opinion.</p> <p>Pbactice. — Evidence.—Where the court sustains an objection by the plaintiff to questions asked by the defendant of a witness, but after-wards permits the defendant to ask the witness the same questions to which it had sustained objection, there is no error available to the defendant.</p>

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

<p>Negligence.—Pleading in General Terms.—Vagueness.—Negligence may be pleaded in general terms under our code, but the allegations must not be so general as to culminate in vagueness or be so uncertain as to admit of almost any kind of proof. If enough be averred to show the existence of a legal duty and its breach, a very slight designation that the act done or omitted was committed or omitted in the absence of due care, is sufficient to support a charge of negligence.</p> <p>Same.'—Complaint, Averment of Negligence.'—In a complaint founded upon a failure to perform a legal duty the act done or omitted to be done should be characterized as having been negligently done or negligently omitted.</p> <p>Same.—Dependent or Independent Causes, Joinder.—If there be several causes dependent or independent of each other, all of which contribute to the injury, an action may, in a proper case, be founded upon all or any one of the causes.</p> <p>Same.—Negativing Assumption of Sisk.—Averment of Notice.—Specific Control General Allegations.—The pleader may negative the assumption of the risk on the part of the plaintiff and aver knowledge of the defects on the part of the defendant in general terms, but if he, after making the general allegation, also attempt to state the facts specifically, the specific will control the general allegations. Notice.—Master Must Take Notice that Machinery and Tools Wear Out—A master is chargeable with notice of the tendency of machinery and tools to wear out.</p> <p>Same.— When Master Not Entitled to Notice.—If the negligent act is an affirmative one and is done by the master personally, notice to him is involved in doing the act, and the same is true if the negligent act be done by another under his order or direction.</p> <p>Same.—Averment of Notice to Master, When Necessary.—If the negligent act is one of omission on the part of the master, notice is not necessarily involved in the act itself, and should be directly alleged, or such facts should be averred from which notice follows as a necessary inference.</p> <p>Same.— Notice to Master, General Allegation of Negligence Not Sufficient. —A complaint must contain a direct averment that the master had notice of the defect causing the injury, or such facts must be averred from which notice arises as a necessary inference, and in such cases a general allegation of negligence is not sufficient.</p>

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

<p>Replevin.—Property Claimed as Exempt from Execution.—Refusal to Set Same Off to Defendant.-—Mortgaged Property.—Where the judgment defendant, after levy and before sale, presented to the sheriff a schedule of all his property of every description whatever, and demanded that the property described in the complaint be set off to him as exempt from execution, and the property was appraised according to law, but the sheriff refused to set the same off to such defendant, he being a householder and entitled to such exemption, the judgment defendant may replevy the same. The fact that the property was mortgaged did not deprive defendant of the right to have the same exempted.</p> <p>Sheeiee’s Sale.—Notice of Recorded Mortgages.—Presumption of Duty Performed.—The sheriff is bound to take noticq of recorded mortgages, and he must require the purchaser to comply with the conditions thereof before placing him in possession, and in that regard it will be presumed that the sheriff did his duty.</p>

<p>Supreme Court. — Jurisdiction.—Constitutionality of Statute. — The Supreme Court has jurisdiction of all appeals where the constitutionality of a statute is involved.</p>

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

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

<p>Damages.—Excavation in Public Alley.—Violation of Ordinance.—Proximate Cause of Injury.—Where a trench is excavated in a public alley for the purpose of tapping a public sewer in violation of a city ordinance, one whose horse, in passing along the alley, steps into the excavation and is injured, can not recover therefor by reason of the violation of the ordinance, such breach of duty not being a proximate cause of the injury.</p> <p>Same.—Bight of Abutting Owner to Dig Trench in Alley.—Consent of Municipal Authorities.—Ordinance Prohibiting Excavation.—Proof of. —An abutting property-owner may dig a trench in a public alley for the purpose of making a sewer connection without the consent of the municipal authorities, unless there is an ordinance to the contrary, and the existence of the ordinance must be made to appear by the party having the burden of proof.</p> <p>Same.—Negligence.—Independent Contractor.—Where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed, except that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the contractor.</p> <p>Same.—Bespondeat Superior.—When Does Not Apply.—Case Stated.— Where A. grants to his neighbor, B., a license to connect with the former’s private sewer—a work neither dangerous nor a nuisance— and B. employs O. to do the work, the relation between A. and 0. does not admit of the application of the rule respondeat superior.</p>

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

<p>Fibe Insubance.—Clause Forfeiting Policy if Property Insured is Incumbered, Valid.-—A provision in a policy of insurance providing that it shall be void if there is an incumbrance upon the property insured of the date of the issuance of the policy, is valid.</p> <p>Same.—Enforcing Forfeiture.—Construction.—Courts are averse to giving effect to forfeitures, and construe the contract of insurance most strictly against the insurer, resolving all doubts in favor of the insured.</p> <p>Same.—Waiver of Terms of Policy.—Forfeiture, Buie of Construction.— Valid and enforceable provisions of a contract of insurance may be waived not only by express agreement, but by the conduct of the insurer; and in determining whether a harsh and inequitable forfeiture clause is to be deemed waived, the courts generally apply the same liberal rule in favor of the insured as governs in the construction of the contract itself.</p> <p>Same.—Incumbrance, When Will Not Avoid Policy.—-Waiver by Failure to Inquire.—If there be no written application for insurance, no questions asked, no statements made, and no knowledge by the assured that the existence of the incumbrance on the property insured works a forfeiture of his insurance, the insurer is deemed to have waived the provision of the policy against an incumbrance.</p>

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

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

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

<p>Railroad.— Use of Same Trade by Two Companies’ Trains.—Sale of Tickets.-—Agency.—Where the trains of one railroad company, by an arrangement between it and another company, use the track of the latter company between certain points, and regularly stop at intermediate stations to receive and discharge passengers, to whom tickets bearing the names of both companies are sold in the usual way by the local company’s ticket agent, the proceeds being divided between the two companies, the local company will be deemed the agent of the other in issuing tickets, and the latter is bound to accept them.</p> <p>Same.—Agent’s Authority.—Purchase of Ticket Without Notice of Bevocation.—Duty of Company to Accept.—Ejectment of Passenger.—Where a railroad company runs its trains regularly over a part of the line of another company, customarily stops at intermediate stations to receive and discharge passengers, and accepts tickets sold by the latter company’s agent, and by its conduct leads the public to believe that the local company’s agents are authorized to sell tickets for use upon its trains, it is bound to accept a ticket from, and is liable for ejecting, a passenger who (with knowledge of the custom and relying upon the local agent’s authority, without notice of its withdrawal) purchased the ticket in the ordinary course after the revocation of the agent’s authority to sell that kind of a ticket.</p> <p>Same.—Ticket Bearing Names of Two Companies.—Presumption:— Where one railroad company, between certain points, uses the track of another company, and, at intermediate stations, tickets bearing the names of both companies are sold to passengers, without limiting words upon the face thereof, it is an indication to passengers who know that the trains of both companies run over the same track, that the ticket is intended for use upon the trains of either company.</p> <p>■Same.—When Erroneous Instruction Harmless.—Instructions going to the question of the defendant’s duty to accept the ticket tendered by the plaintiff, although incorrect, will be deemed harmless, and not available for a reversal of the judgment where the verdict rightfully determines the duty of the defendant in that particular.</p> <p>'Same.—Damages.—Measure of.—Excessive Damages.—As there is no standard by which the damages sustained by a passenger by reason of a wrongful public expulsion from a train can be accurately measured, the amount fixed by the jury in this case will not be disturbed on appeal.</p>

<p>Negligence.—Child Non Sui 'Juris, Negligence of Parent.—Negativing Imputed Negligence.—In an action by a child non sui juris for injury occasioned by the negligence of the defendant, the negligence of its custodian is imputed to the child, and therefore the general averment that the injured child was without fault is sufficient to negative the imputed negligence of the parent or custodian. On the trial it must be shown that the custodian was without fault. '</p> <p>Same.—Child, Non Stii Juris a Question for Jury.—In such an action, whether the plaintiff was sui juris or non sui juris, is a question of capacity for the jury.</p> <p>Same.— When Child May Maintain an Action for a Negligent Injury.— If a child is of such tender years as to be wholly irresponsible, in an action by the child, there should be imputed to it, without limit or qualification, the conduct of the parent or person standing in-loco parentis, but such is not the rule if the child has capacity to exercise discretion in its own behalf.</p> <p>Same.—Special Verdict.—Injury to Child.—Finding as to Contributory Negligence, When Jury May Determine.—The finding in a special verdict that the child had sufficient capacity to exercise reasonable care, and that he was in the exercise of ordinary care, can stand only as ultimate facts, drawn as inferences from given specific facts on which they are predicated. If the jury find the facts specially in relation to the age, experience, capacty, and conduct of the child when injured, and it is indisputable that only one inference can be drawn from the facts, and that is the conclusion that the child was guilty of negligence contributing, as a proximate cause, to its injury, then the finding that the child was not guilty of contributory negligence should be disregarded, but if there is room for a difference of opinion between reasonable men as to the inferences which may fairly be drawn from such facts, then it is proper for the jury to determine the'question of contributory negligence.</p> <p>Same.—Degree of Care Required of a Child Sui Juris.—-In an action by a child who is sui juris, for damages for personal injuries sustained by it on account of culpable negligence on the part of the defendant, the latter can not escape liability solely on the ground that the child is. chargeable with contributory negligence because it did not exercise the ordinary care that a reasonably prudent adult person should have exercised under similar circumstances. If the child exercise ordinary care as a reasonably prudent child of the same age, experience, and capacity should have exercised under similar circumstances, it is not guilty of contributory negligence.</p> <p>Same.—Degree of Care Required of a Child Non Sui Juris.—In an action for negligence by a child non sui juris, if it in fact exercised the ordinary care that a reasonably prudent adult person should have exercised under similar circumstances, the negligence of its parents can not be imputed to it to defeat a recovery.</p> <p>Same.—Child Playing in Street.—A child is not guihy of contributory negligence per se by playing in a public street.</p>

<p>Master and Servant.—Guaranty Against Iniury.—Scope of Guaranty. —Where a servant, a young girl of fifteen years, employed in a laundry to iron flannels with a flat-iron, was, over her objection, set to operating a “mangle,” upon the assurance of the master that it was not difficult to manage or dangerous to the operator, “and that he (the master) would take all the risk of any accident that might occur to her by reason of her operating said mangle,” the guaranty of the master against injury did not extend to injuries received through the servant’s own negligence, but only such as might befall her by reason of the master’s negligence or by reason of the natural dangers incident to the use of the machinery when operated by her in an ordinary and prudent manner.</p> <p>Same.—Contributory Negligence.—Voluntary Act.—That the injuries complained of were not the result of plaintiff’s negligence nor of a voluntary act which must inevitably result in injury, see opinion. Same.—Guaranty Against Injury.—Scope of Guaranty.—Under such guaranty, if the servant used ordinary care, such as was to be expected of one of her age, intelligence and experience, and nevertheless was injured, the master agreed to answer therefor, and is liable. Same.—Servant of Tender Years Chargeable with Knowledge of what Is Dangerous.—At the age of fifteen any child of ordinary intelligence must know that to place its hand on a bar of iron heated to a great heat must burn, or to place its fingers between two heavy rollers, where the space is too small to admit them, must result in their being crushed.</p> <p>Interrogatories to Jury.—When General Verdict Can Not Stand.— If the jury, in answer to interrogatories, find a material fact contrary to what they must have found in order to have reached the' general verdict, the general verdict can not stand.</p>

<p>Negligence.—Proximate Cause.■—It does not aid the plaintiff in an action based upon a negligent tortious act or omission to show negligence on the part of the defendant, unless such negligent act be also the proximate cause of the injui-y.</p> <p>Special Veedict.— When Not Aided by Inference or Intendment.—Sow Construed.—A special verdict will be construed reasonably and fairly, but it must contain within itself, without aid by intendment or inference, other than those which necessarily follow, all those essential facts which are required to authorize a recovery by the party upon whom rests the burden of proof.</p> <p>Stebet Railroad.—Personal Injury of Passenger.—When Not Liable.—■ Contributory Negligence.—Giving Signals.—•'Where a street-car passenger gave asigna] (as it was the custom of passengers to sometimes do) to stop at the next street crossing, and in obedience to the signal the motorman slowed up at the crossing and came almost to a standstill, when the passenger gave another signal (as she intended) to stop, and about the same time stepped from the car, and while she was in the act of alighting the speed of the car was greatly accelerated, causing her to fall to the ground, etc., the railroad company is not liable in damages for injuries sustained, it not appearing but that the second signal given by her was the regular signal to start up the car, nor that the motorman knew, or by the exercise of due care might have known, that she was not yet off, but was in a position of danger should he start up the car, nor that the car would not have come to a full stop had she delayed giving the second signal.</p>

<p>Special Finding.—When will Override G-eneral Verdict.—The special findings override the general verdict only when both can not stand, and this antagonism must be apparent upon the face of the record beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of a party against whom a general verdict has been rendered.</p> <p>Same.—Facts Found.—Malpractice.—For special findings that do not override the general verdict in favor of plaintiff, in an acfion for malpractice in failing to properly reduce a fracture of a bone and replace dislocated parts of the wrist, etc., see opinion.</p>

<p>Appeal.—From Judgment by Default.—An appeal lies from a judgment by default.</p> <p>Same.—Appellate Court Practice.—Joint Appeal from Judgment by Default and from Puling on Motion to Set Aside Default.—Where a motion to set aside a judgment by default is overruled, and appeal is taken, in which errors are assigned questioning the sufficiency of the complaint, and also the ruling of the court on the motion to set aside, and no objection is made to the assignment of errors as for a misjoinder, the appeal is as much from the judgment by default as from the ruling on the motion to set aside, and the court can not disregard it in either case.</p> <p>Same.—From Judgment by Default.—Sufficiency of Complaint.—Not Aided by Judgment.—When the appeal is from a judgment taken by default, the rule that the complaint will be held sufficient unless there is an entire failure to state a cause of action, does not apply; and in such case the complaint is not cured by the verdict or finding.</p> <p>Pleading.—Complaint to Foreclose Street Assessment Lien.—Assessment Poll as Fxhibit.—In an action to foreclose a street assessment lien, a copy of the assessment roll, or at least that portion of it which relates to defendant’s property, should be made an exhibit of the complaint, to make the complaint sufficient on demurrer or on appeal from judgment by default.</p>

<p>Instructions to Jury.—Sow Made Part of Becord.—Piling, etc.—Instructions given, in order to be made apart of the record, must be filed, and the fact of the filing must be shown in the transcript. Appellate Court Practice.—Sufficiency of, and Weight of, Evidence.— The appellate tribunal will not weigh conflicting evidence, nor reverse where there is evidence tending to support the finding of the court below.</p>

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

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

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

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

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

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