Volume 20 — Indiana Appellate Court Reports

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

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

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

<p>Instructions. — Repetition of Instructions. — Where a proposition of law is clearly and fully covered by an instruction it is not error to refuse an instruction covering the same proposition, p. SO.</p> <p>Same. — Directing Verdict. — It is within the province of the court to direct a verdict by instructions only where there is a total absence of evidence upon some essential issue, or where there is no conflict, and the evidence is susceptible of but one inference, pp. SO, SI.</p> <p>Evidence. — Weight of. — Where there is some evidence to support the judgment the Appellate Court will not weigh the evidence or disturb the judgment, p. 22.</p> <p>Appeal and Error. — Failure to Discuss Error Assigned. — Waiver. —The failure to discuss error assigned amounts to a waiver of such, error, p. 22.</p>

<p>Contracts. — Complaint.—Demand.—A complaint for the price of certain wheat was based upon the following instrument: ‘ ‘Received of Lydia Emmons forty-two 35-60ths bush, wheat, in store, to be paid for on demand, in flour at 36 lbs. per bush., and twelve lbs. bran, subject to any loss by fire or otherwise.” Held, that the complaint, to be good as against a demurrer, must allege a demand for payment in flour and bran. pp. 23, 2J¡..</p> <p>Contracts. — Construction.—Extrinsic Evidence. — Where it cannot be determined from a contract itself whether the parties intended a bailment or a sale, resort may be had to extrinsic evidence. p. 25.</p> <p>Same. — Construction.—Usage.—Although usage cannot control an express contract, yet, where a contract is ambiguous, the presumption is that it was made with reference to known usage or general course of the particular business, p. 25.</p>

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

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

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

<p>Parent and Child. — Enticing Child Aioay from Home. — Seduction.— Damages. — Proximate Cause. — Defendant enticed plaintiff’s minor daughter away from home, and, over plaintiff’s objection, employed her to perform household duties in his home, where, without his knowledge, she was seduced by his son, and became pregnant with child. Held, that the damages sustained were remote, and not the proximate result of such wrongful employment, pp. kl¡--50.</p> <p>Appeal and Error. — Failure to Assess Nominal Damages. — The Appellate Court will not reverse a judgment for failure to assess nominal damages, pp. SO, 51.</p>

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

<p>Compromise and Settlement. — Construction of Agreement. — Personal Injury. — Railroads.—Where a railroad employe made a written. proposition to the company in settlement of a claim for an injury sustained by him while in the employ of the company, containing a stipulation, “I am to remain in the service of said company as brakeman as long as I want to, providing my work shall prove satisfactory,” and subsequently signed a release which the company’s claim agent presented to him in which it was provided that he was to be employed “for such time only as may be satisfactory to said company,” it will be presumed, in the absence of any showing of fraud or mistake, that claimant consented to such variance. . pp. 55-61.</p> <p>Contracts. — Construction.—Master and Servant. — Where a railroad company in consideration of a release of liability for injuries sustained by an employe, agreed to re-employ him as a freight brakeman, he having been formerly employed as an extra freight brakeman, and he rendered services as such extra brakeman during the re-employment, the contract to re-employ is properly construed by considering the nature of the previous employment and the manner in which the parties treated the contract, p. 61.</p>

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

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

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

<p>Evidence. — The Appellate Court will not reverse a judgment on the evidence where there is evidence sustaining the judgment, p. 85. Same. — Harmless Error. — It is harmless error to refuse the admission of evidence tending to prove matters established by other uncontradicted evidence and shown to exist by the special findings. pp. 85, 8G.</p> <p>Trusts. — Advancements.—Husband and Wife. — Where a father made an advancement to his daughter’s husband without any intention or agreement of the parties that the money should be repaid to the wife, no trust was thereby dreated in her favor, pp. 83-87.</p>

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

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

<p>Banks and Banking.— Collections.— Default of Correspondent. — A. bank in accepting for collection a draft payable at a distant bank is only bound to the exercise of reasonable skill and ordinary diligence in selecting its correspondents and making the collection, and is not liable for the default of a correspondent, where due care was exercised in the selection of such correspondent.</p>

<p>Bills and Notes. — Consideration.—Fraud.—The collection of a note given as part purchase money of an electric belt and truss business, including stock, material, and machinery on hand, cannotbe defeated by proof of a statement made by the seller and payee of the note at the time of sale to the effect that the business was worth an amount greatly in excess of that realized therefrom by the purchaser, where the purchaser received substantially the articles mentioned in the inventory.</p>

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

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

<p>Injunction. — Bond.—Attorney’s Fees. — Attorney’s fees for defending an injunction suit at the trial on the merits of the cause may be recovered in an action on the bond, although the injunction was not the sole object of the action, pp. lj.9, 150.</p> <p>Bonds. — Names of Sureties in Body of Bond. — Injunction.—The fact that the names of the sureties on a bond filed in a suit for an injunction did not appear in the body of the bond cannot be questioned on appeal, where the court approved the bond upon issuing the restraining order, p. 150.</p> <p>Same. — Injunction.—Obligees.—Where the names of the mayor and marshal of a city were placed in a bond as obligees, filed in a suit against such city for an injunction, any rights under such bond would not accrue to such officers individually, but to them for the benefit of the city. p. 150.</p>

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

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

<p>Practice. — Overruling Demurrer to Bad Answer. — Harmless Error.— Available error cannot be predicated on the action of the court in overruling a demurrer to a defective answer where plaintiff was not injured by such defect, pp. 157, 158.</p> <p>Principal and Agent. — Acts Not Within Scope of Agent’s Authority. —When Principal Bound By. — The authority of an agent must proceed from his principal, and in ascertaining the extent of his authority the court will look to what has been expressly or impliedly authorized before the performance of the act of the agent in question, and to the action of the principal in adopting or rejecting such act; if the subsequent conduct may be explained and understood in a sense consistent with a previously existing limitation upon the agent’s authority, such subsequent conduct .cannot furnish, as against the principal, a foundation for an implication of extended authority by way of ratification of an unauthorized act. pp. 158-165.</p>

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

<p>Adultery. — Indictment.—Criminal Law. — An indictment for adultery which charges that the woman was then and there a married woman and the wife of one 'William Jones, sufficiently shows that thehusband wasliving, and that they were not divorced, pp.168,169.</p> <p>Appeal and Error. — Affidavits.—How Brought into Record. — Criminal Law. — Affidavits to sustain causes assigned for a new trial, in a criminal cause must be brought into the record by bill of exceptions. p. 169.</p>

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

<p>Practice. — Interrogatories to Jury.— The time during the trial in which the request for answers to interrogatories to the jury shall be made is largely within the discretion of the trial court, and unless there is a clear abuse of discretion the action of the court will not be disturbed, pp. 174--176.</p> <p>Evidence. — Weight Of. — New Trial. — Where the evidence is conflicting, and there is some evidence to support the verdict, and the trial court has overruled a motion for a new trial asked because the verdict is not sustained by sufficient evidence, the action of the trial court is conclusive upon this court, pp. 176, 177.</p> <p>Practice. — Setting Aside General Verdict. — Where the facts found by answers to interrogatories were entirely inconsistent with the general verdict, and such facts were sustained by the evidence, no error was committed by the trial court in disregarding the general verdict and rendering judgment on the answers to the interrogatories. p. 177.</p>

<p>Municipal Corporations. — Negligence.—A city is not liable for an injury sustained by a person caused by slipping upon a loose brick in the sidewalk which turned under her foot, where no defect was apparent in the sidewalk, and the city had no knowledge of the defect.</p>

<p>Practice. — Motion- to Dismiss. — A motion by defendant to dismiss an action for the reason that the demand was paid off, is properly overruled, pp. 181, 182.</p> <p>New Trial. — Motion for. —A motion for a new trial for the reasons that “the finding and judgment of the court is contrary to the evidence,” and “the finding and judgment of the court is contrary to law,” does not state a ground for a new trial under section 568, Burns’ E. S. 1894. p. 182.</p>

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

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

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

<p>Practice. — Admission of Evidence. — Exception.—Appeal and Error. —No error is committed in refusing an offer to prove a fact or facts where the offer embraces more and is of wider range than the question asked the witness, pp. 210-212.</p> <p>Same. — Evidence.—Life Insurance. — A question propounded to a witness in an action on a life insurance policy as to whether under the constitution a member had the right to change the beneficiary in his policy is properly rejected as the constitution itself is the best evidence of such fact. pp. 213, 214.</p> <p>Live Insurance. —Declarations of Insured. — Statements or admissions made by insured are not admissible in evidence in an action on a policy of life insurance for the purpose of defeating the rights of the beneficiary, p. 214.</p> <p>Same. — Ownership of Policy. — Where an insurance policy is issued upon the life of one person for the benefit of another, and such beneficiary is named in the policy, it becomes the property of such beneficiary from the time it goes into force, pp. 214, 215.</p> <p>Same.' — Warranties.—Warranties in an insurance policy are not favored in law. p. 218.</p> <p>Instructions. — Life Insurance.— Warranties.— Guaranty. — An instruction to the jury in an action on a life insurance policy that “the word warranty means more than an agreement, it means a guaranty,” is erroneous, as the words warranty and guaranty have different meanings, pp. 217, 218.</p> <p>Same. — Life Insurance. — Construction of Contract. — An instruction given to the jury in an action on a life insurance policy that “the word warranty means more than an agreement, it means a guaranty. Warranties are not favored in law and nothing can be construed as a warranty except that which was and is plainly and unequivocally declared to be such by the parties” is erroneous, as it gave the jury to understand that they had the right to construe the contract between the parties and determine whether the answers in the application amounted to warranties, where such answers were made warranties by the express terms of the contract, pp. 217-219.</p> <p>Instructions. —Life Insurance.— Contradictory Instructions.— The court erred in charging the jury in effect in one instruction, in the trial of an action on a life insurance policy, that they might construe the contract between the parties and determine whether certain answers of the insured to questions in the application amounted to warranties, and in another instruction informing the jury that such answers were warranties, and if any answer was untrue the warranty was broken, and the policy void, as such instructions were contradictory, pp. 217-219.</p> <p>Same. — Life Insurance. — Contradictory Instructions. — An erroneous instruction is not cured by a correct instruction on the same matter which is contradictory of the erroneous one, it can only be cured by withdrawing it. pp. 219-220.</p> <p>Same. — Life Insurance. — Contradictory Instructions.— Where the court gives instructions which are contradictory and tend to mislead the jury, the judgment will be reversed, pp. 219, 220.</p>

<p>Bills and Notes. — Principal and Surety. — Release of Surety by Extension of Time. — In order to release the surety on a promissory note by reason of the extension of the time of the payment of the note, it is necessary that the extension should be for a definite period, that it should be for a valuable consideration; that it should be done without the consent of the surety and that the holder of the note should have knowledge of the fact that.the person seeking the relief for such cause is surety, p. 221.</p> <p>Instructions. — Incomplete Instruction. — An instruction which undertakes to set out the material facts necessary to be proved in order to maintain an action or defense must be correct and complete, pp.</p>

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

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

<p>Damages. — Death by Wrongful Act. — Complaint.—Beneficiaries.—In an action by the personal representatives for damages for “the death of their decedent caused by the wrongful act of another, brought under the provisions of section 285, Burns’ R. S. 1894, an allegation that decedent leaves heirs and next of kin who are entitled to damages and who have been damaged is sufficient to permit the introduction of evidence to establish who the beneficiaries were. pp. 242, 243.</p> <p>Same. — Death by Wrongful Act. — Elements of Damages. — Damages for bereavement, pain, or as a solatium are not recoverable in an action for death by wrongful act, the question is one solely of pecuniary loss. pp. 243, 244.</p> <p>Same. — Excessive Damages. — Death by Wrongful Act. — A judgment in favor of the mother for $2,750.00 for the death of her daughter by the wrongful act of defendant is excessive, where the daughter was married and lived with her husband, but contributed her personal earnings amounting to $2.50 per week to the support of her mother, pp. 243-247.</p>

<p>Bills and Notes.— Drafts. — Acceptance.— Sales.— A stock dealer bought a lot of cattle, sent them to a commission merchant for sale, and drew a sight-draft on the commission merchant in payment for the cattle as he had been in the habit of doing, being at the time indebted to the merchant for overdrafts previously made. The bank receiving the draft for collection gave the merchant notice thereof, and the merchant agreed to inform the bank in the afternoon of that day whether he would accept the draft. In the meantime the merchant sold the cattle, and after reimbursing himself from the proceeds of the sale for the amount due him for overdrafts, paid the balance to the holder of the draft and notified the bank that he would not accept the draft. Held, that the sale of the cattle with the knowledge of the draft, under the circumstances, did not amount to an acceptance of the draft, and that the commission merchant was not liable for the payment of the draft.</p>

<p>Pleading. — Answer.—Cross-Complaint.— Bills and Notes.— The receiver of a bank sued a manufacturing company for balance due on a promissory note. Defendant by way of answer and by cross-complaint set up an agreement entered into by it and the president and cashier of the bank, by the terms of which defendant assigned to such president and cashier certain mill machinery and stock as collateral security for a debt owing by defendant to said president and cashier, and also to the bank, wherein it was agreed that the stock should be sold, and the proceeds, after paying the operating expenses of the mill, be applied to the payment of the debts so secured, and the surplus returned to defendant, and alleged that the money received from such sale was in excess of the debts secured, and that the surplus was not returned to defendant, asking that the amount collected from such sale be first set off against the demand, and demanding judgment for the surplus. Held, that defendant’s demand set forth in the answer and the cross-complaint was within the definition of a set-off as provided by section 351, Burns’ R. S. 1894 pp. 253-259.</p> <p>Plea in Abatement. — Pendency of Prior Action. — A prior action pleaded by way of abatement must be between the same parties or their privies, and for the same cause of action, pp. 259, 260.</p> <p>Special Verdict. — Elimination of Improper Matter. — Where a special verdict after the elimination of improper matter consisting of conclusions of law and evidentiary facts' contains enough facts to support a judgment within the issues, it will be held sufficient. pp. 261, 262.</p>

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

<p>Special Verdict. — Sufficiency.—A special verdict in an action against a board of county commissioners to recover for work and labor performed in preparing plans and specifications for a public building which shows that the board adopted the plans and received bids on them, and afterwards rejected them on account of imperfections therein is sufficient to support a judgment for defendant, where it was also shown in the verdict that plaintiff agreed that if his plans were not used in the construction of the building he was to receive no pay for them.</p>

<p>Words and Phrases. — Construction.—Rules of Court. — Change of Venue. — Where a rule of court requires that applications for change of venue must be made by the second Wednesday of the term of court, an application made on the second Wednesday is a sufficient compliance with the rule. pp. 279, 280.</p> <p>Marriage. — Contract of Marriage. — No particular form of words is necessary to constitute a marriage contract, p. 282.</p> <p>Breach of Marriage Promise. — Repudiation of Contract. — Action for Breach. — Before an action can be maintained for the breach of a marriage contract it must be alleged and proved that the contract has been repudiated, and such repudiation must be shown by the acts, words, or conduct of the party who so repudiates it, and to be without sufficient reason or cause. A mere request for a postponement of the marriage ceremony for reasonable cause does not amount to a repudiation Or renunciation of such contract, pp.</p>

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

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

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

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

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

<p>Special Finding. — Sufficiency.—A special finding must find the facts and not mere matters of evidence, p. SSI.</p> <p>Same.— Venire De Novo. —Where a special finding is defective in failing to find the material facts in issue the proper remedy is a motion for a venire de novo. pp. SSI, 3SS.</p>

<p>Township Trustees. — School Supplies. — Sections 8081, 8083, Burns’ R. S. 1894, providing that Before a township trustee can contract a debt in excess of the fund on hand to which the debt is chargeable he shall obtain an order from the hoard of county commissioners, etc., is not applicable to a debt incurred for stoves used in theschoolhouses of the township.</p>

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

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

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

<p>Instructions. — Elections.-— Purchase of Votes.— Penalty.— In the trial of an action to recover the penalty provided by sections'6335, et seq., Burns’ R. S. 1894, for purchasing or attempting to purchase votes at an election held pursuant to law, the court erred in refusing ■to instruct the jury that defendant was presumed to be innocent of the crime therein charged until such presumption was overthrown by the preponderance of the evidence.</p>

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

<p>Partnership.— Assignment for Benefit of Creditors. — Cannot be Made by One Member of Firm,. — One member of a partnership can not make an assignment for the benefit of creditors of the partnership property nor create a trust therein without the consent or ratification of the other members of the firm.</p>

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

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

<p>Appeal and Error. — Bill of Exceptions. — Motions.—A motion to make a complaint more specific must be- set out in the bill of exceptions in order to become a part of the record on appeal, p. 379.</p> <p>Master and Servant. — Negligence.—Damages.—Special Verdict.— Sufficiency. — A special verdict in an action by a section hand against a railroad company for damages for injuries sustained while breaking stone for defendant which finds that the handle of the hammer furnished him by defendant was made of a hickory pole with the bark on, and was worm-eaten and defective, and by reason of such defects broke and caused the hammer to glance and thus cause a piece of the stone to fly toward plaintiff and strike him in the eye, wounding the eye and destroying the sight, is sufficient to sustain a judgment for plaintiff, pp. 379-382.</p> <p>Special Verdict. — Ultimate Facts. — Practice. —The question as to the manner in which plaintiff received an injury is one of fact to be found by the jury, and such conclusion will not be disturbed under a motion for a judgment on the verdict, pp. 382, 383.</p> <p>Same. — Weight of Evidence. — Where there is evidence tending to support the findings in a special verdict the Appellate Court will not disturb the verdict on the sufficiency of the evidence, p. 383.</p> <p>Appeal and Error. — Interrogatories to Jury. — Objections to Form of. — When Made for First Time on Appeal. — Objections to interrogatories to the jury filed with the special verdict on the ground that they were not so framed that the jury in answering them should answer as to a single fact only will not be considered on appeal under a motion for judgment upon the verdict,-where no such objection was presented in any form to the trial court, p. 383.</p>

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

<p>Mortgages.- — Sale of Mortgaged Chattels on Execution. — Liability of Officer. — A constable who sells mortgaged chattels on an execution against the mortgagor, and delivers the same to the purchasers without requiring a compliance with the terms of the mortgage, is liable only for nominal damages, where the chattels were not removed from the county and were within a short distance of where the mortgagee lived.</p>

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

<p>Pleading. — Natural Gas Lease. — Action on Lease. — Assignment of Lease. — In an action on a natural gas lease against the assignee thereof for the recovery of the rentals under the terms of the lease ' the complaint is not bad for failing to set out a copy of the assignment. pp'. 406, 407.</p> <p>Practice. — Harmless Error. — Error cannot be predicated upon the action of the court in sustaining a demurrer to a paragraph of complaint where the same facts were provable under another paragraph. p. 407.</p> <p>New Trial. — Puling of Court on Pleadings. — The rulings of the court on the pleadings are not causes for a new trial, and have no proper place in a motion therefor, p. 408.</p>

<p>Appeal and Error. — Longhand Manuscript of Evidence. — How Made Part of Record. — In order that the original longhand manuscript of the evidence be made part of the record without being copied by the clerk, it must be filed in the clerk’s office before being incorporated in the bill of exceptions, pp. 415, 416.</p> <p>Attachment.— Personal Judgment. — Abandonment of Attachment proceedings. — The rendition of a personal judgment in an attachment proceeding without adjudication of the issue in attachment amounts to an abandonment of the attachment proceeding, and the judgment stands as though no attachment had been commenced. pp. 416-417.</p> <p>Judgment. — Joint Obligors. — Common Law Rule Not Changed. — The common law rule that a judgment recovered against one of two joint debtors is a bar to an action against the other is not changed by sections 322, 323,' Burns’ E. S. 1894. pp. 417, 418.</p> <p>Judgment. — Joint Obligors. — Where the holder of a joint note sues a part of the joint obligors, and takes a judgment against them, the judgment merges the obligation, and bars a subsequent action against the other joint obligors; but by proceeding under section 332, Burns’ E. S. 1894, he may take judgment against those served, and suggest upon the record the return of “Not found” as to those not summoned, and then by proceeding under section 323, Burns’ E. S. 1894, he may have the joint obligors not found bound by the judgment in the same manner as if they had all been before the court originally, pp. 417-422.</p>

<p>Sales. — Contracts.—Orders.—-Plaintiff sued defendant for the value of a car load of spokes. It was found by the special verdict that plaintiff sold defendant a car load of spokes in 1895, and another in 1896, which were paid for. A short time after the latter sale plaintiff wrote defendant, “We have a oar load of spokes on hand now. If you want them, send a man over and take them up, and we will pay his car fare to Ft. Wayne. Let us hear from you by return mail.” Defendant replied, “Your favor of the 28th inst. is received, but, as we are chuck full of cheap spoke stock, we will -not be able to use yours just now. We think, however, that we can do so after September 1st.” About a month thereafter defendant wrote plaintiff that owing to a depression in business they would discontinue all purchases of wheel material. “and will not accept any after September 1, 1896. If you have any stock manufactured upon our order, please deliver same before that date.” Held, that the correspondence did not amount to a sale nor show that plaintiff had a standing order of sale. pp. 428~4%7.</p> <p>Special Yerdict.— Practice — Contracts.—Sales.—It is the duty of the jury in an action on a contract of sale to find in the special verdict the facts in relation thereto, and it is for the court to say whether a contract was entered into. p. J¡,25.</p>

<p>New Trial. — Evidence.—When the evidence is not in the record reasons assigned for a new trial which depend upon the evidence cannot he considered on appeal, p. J$9.</p> <p>Instructions.- — When Not in Record. — The Appellate Court cannot consider an alleged error of the trial court in failing properly to instruct the jury where the instructions given are not in the record. p. J$9.</p> <p>Special Verdict. — Objections.—Where appellant made no objection to a special verdict, took no exception thereto, and moved for a judgment thereon, he will not be heard to object to it as such on appeal, pp. 429, 430.</p> <p>Street Railroads. — Negligence.—Plaintiff sued defendant for damages on account of injuries to his buggy and team of horses caused by a collision with a street car. The special verdict showed that plaintiff drove upon the track about thirty or forty feet ahead of an • approaching car for the purpose of passing another vehicle; that the motorman on the car had no warning that plaintiff was going to turn upon the track, and- did all in' his power to stop the car before it struck the buggy. Held, that defendant was not guilty of negligence. 430, 431.</p>

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

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

<p>Appeal and Error. — Parties.—Decedents’ Estates.— Pending the approval of a final report of the administrator of a decedent’s estate, showing the estate to be insolvent, the wife of decedent filed a petition asking that a sum of money theretofore paid by her on certain claims against the estate he paid her by the administrator. The court, at the request of the administrator and petitioner, and also appellant, a creditor of the estate, made a special finding of the facts, stated conclusions of law thereon and rendered judgment in favor of petitioner, from which the creditor appealed. Held, that the administrator was a necessary party to the appeal,</p>

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

<p>Mortgages. — Conveyance of Mortgaged Real Estate. — Assumption of Mortgage. — Where a grantee of real estate by the terms of the deed assumed and agreed to pay, as a part of the purchase-money, a mortgage thereon, he thereby became the principal debtor for the debt so assumed, and the mortgagor, who was the grantor, became surety, p. Jfi7.</p> <p>Same. — Conveyance of Mortgaged Real Estate. — Assumption of Mortgage. — Liability.—Where a purchaser of a part of a tract of real estate assumed and agreed to pay a certain mortgage on the entire tract, the part conveyed became the primary security, and the grantee was thereby bound to protect the owner of the remaining portion thereof from loss by reason of the mortgage, p. Jfil.</p> <p>Mortgages. — Conveyance of Mortgaged Beal Estate. — Assumption of Mortgage. — Liability.—The fact that the owner of a portion of a tract of real estate did not appear and seek affirmative relief in a suit to foreclose a mortgage existing on the entire tract would not release the owner of the remaining portion thereof, who had assumed the payment of the mortgage, from liability to such owner for the violation of such agreement, pp. ^69, JfiO.</p> <p>Same. — Deeds. — Assumption of Mortgage. — Estoppel.— Where a grantee of real estate went into possession of the real estate under a deed of conveyance containing a stipulation that the grantee assumed, as part of the purchase-money, the payment of a mortgage existing thereon, and received the rents and profits thereof until the foreclosure of the mortgage, and until the year of redemption had expired, he will be estopped from disclaiming his acceptance of the deed. pp. JflO, Ifll.</p>

<p>Special Verdict. — Sufficiency.—The special verdict must find in favor of the party having the burden of proof all the facts essential to a recovery, p. 478.</p> <p>Railroads. — Fires Escaping from. Right of Way. — Damages.—Special Verdict. — A special verdict in an action against a railroad company for damages on account of fire escaping from its right of way to plaintiff’s premises must show the negligence of defendant, and that the injury sustained by plaintiff was without his fault or negligence, and it must also show what plaintiff did to prevent the injury. p. 474.</p> <p>Same. — Fires Escaping from Right of Way.— Damages.— Special Verdict. —Interrogatories. —Passive Negligence. —An interrogatory , and answer in a special verdict in an action against a railroad company for damages on account of fire escaping from defendant's right of way to plaintiff’s premises, ‘ ‘ Did plaintiff do anything which in any way aided the spread of said fire from said right of way, or which in any way contributed toward the spread of said fire to his said lands? Ans. p No.”, shows that plaintiff did nothing contributing to his injury, but does not show that he did not omit to do something which he should have done to prevent the injury. pp. 474-478.</p> <p>Appeal and Error. — Rehearing.—Petition.—A petition for a rehearing, and brief in support thereof may be presented together, but the particular points upon which the rehearing is asked must be stated in the petition, pp. 479-48%.</p>

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

<p>Replevin. — Possession.—Special Verdict. — Where the special verdict shows that defendants were not in possession of the property in question a judgment thereon in replevin is unwarranted, p. 403.</p> <p>Assignment for Benefit of Creditors. — Conversion.—An assignee for the benefit of creditors is not a purchaser for value as against a defrauded seller of the goods assigned, and the refusal of the assignee to surrender the goods to the seller amounts to a conversion. p. 495.</p> <p>Same. — Fraud..—Conversion.— Sales.— A purchase of goods by one who at the time of the purchase knew he was not able to pay for them, and intended not to pay for them, is such a fraud as will entitle the vendor to avoid the sale, although there was no fraudulent representation made, and an assignment of such goods for the benefit of creditors amounts to a conversion, pp. 495, 496.</p>

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

<p>Appeal and Error. — Law of Case. — Pleading.—A holding by the court in a former appeal of the cause in the consideration of the special verdict, that certain facts therein found amounted to negligence on the part of defendant, constitutes the law of the case as to subsequent pleadings therein in which such acts of negligence were properly pleaded, p. 504.</p> <p>Special Verdict. — Master and Servant. — Damages for Personal Injuries. — A special verdict in an action for personal injuries found that plaintiff, a boy about eighteen years of age, who was employed in defendants’ factory to assist in making dental supplies was required by defendant to run the engine and instructed to report to certain other employes who had formerly run the engine anything which he might observe to be out of repair, and to follow the advice of such employe relative thereto; that plaintiff observed that a belt was worn and had begun to break, and reported the same to one of such employes, who instructed him to remove the belt and repair the same, and in attempting to remove the belt, without stopping the engine, he was caught by a set-screw in a revolving shaft, and injured; that plaintiff was not instructed to stop the engine before removing the belt, although he had seen the engine stopped on a previous occasion for the purpose of removing the belt. The jury found that the shaft was revolving at the rate of 240 revolutions a minute, and that plaintiff could not see the set-screw, and did not know of the existence thereof, although he had oiled the bearings on the line shaft within three inches of the set-screw once a day for about three weeks prior to the accident. Held, that there was not such ambiguity in the verdict as to render it insufficient to sustain a judgment for plaintiff, pp. 505-511.</p> <p>Master and Servant. — Fellow Servant. — The question wffiether or not the facts exist which make two or more employes fellow servants is a question of fact, but when such facts are found it becomes a question for the court to determine whether or not those facts bring the matter within the legal definition of a fellow servant. p. 512.</p> <p>Damages. — Assessment.—Jury not Required to Itemize. — Practice.— No error was committed in refusing to submit certain interrogatories to the jury inquiring concerning the several amounts allowed as separate items in the assessment of damages in an action for damages on account of personal injuries sustained by plaintiff while in the employ of defendant, p. 513.</p>

<p>Plea in Abatement. — Appeal and Error, — Assignment of Error.— Sufficiency of Complaint. — A demurrer to a plea in abatement does not reach the record, and cannot be carried back and sustained to an insufficient complaint, and the sufficiency of the complaint cannot be considered on appeal on an assignment of error based upon the action of the court in overruling such demurrer, pp. 517-519.</p> <p>Same. — Dilatory Pleas. — A plea in abatement is a dilatory plea, and is not regarded favorably by the courts, p. 519.</p> <p>Process. — Nonresident Corporations. — Jurisdiction.—Under the prov visions of sections 313 and 816,-Horner’s R. S. 1897, the court acquires jurisdiction of a cause of action arising in this State against a foreign corporation doing business in this State, by service of process upon its superintendent who at the time was in this State as the agent and representative of the corporation, and engaged in the transaction of business' for it, although a resident of another state, pp. 519-SS4-</p>

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

<p>Township Trustee. — Contracting Debts Contrary to Law. — Where a township trustee contracts a debt contrary to the provisions of sections 8081, 8082, Burns’ R. S. 1894, and anything for which the trustee has the authority to expend money from the special school fund has, under the contract, been received and retained by the school township which is beneficial to such township, there may be a recovery against the township for the benefit so derived by it. pp. 545, 546.</p> <p>Same. — Insurance of School Property. — Under the provision of section 5920, Burns’ R. S. 1894, placing upon a township trustee.the duty of caring for and managing the school property belonging to the township, he has such implied authority, that in the exercise of his discretion, he may make reasonable expenditures from the special school revenue in procuring insurance on such property against fire. pp. 546, 547.</p>

<p>Railroads. — Personal Injuries.— Negligence.— Plaintiff’s intestate, while in the employ of a street contractor in loading gravel upon a wagon near defendant’s railroad track where it had been deposited by defendant for such contractor, was struck by defendant’s locomotive and cars which had ran off the track, and was fatally injured. The jury found that the locomotive was thrown from the track by reason of the accumulation of gravel thereon from unloading cars. It was also found that intestate was a farmer and had never worked about railroad tracks, and did not know that the track was in a dangerous condition. Held, that intestate was not guilty of such negligence contributing to his injury as to prevent a recovery, pp. 648-555.</p> <p>Railroads. — Street Employe. — Negligence.—An employe engaged in shoveling gravel for a street contractor at a place near the railroad track where it had been deposited by the railroad company has the right to assume that the track is in safe condition for the passage of trains and that he may pursue his work of shoveling gravel without danger of injury from the derailment of a passing locomotive through the accumulation of gravel upon the track, p. 555.</p>

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

<p>Railroads.' — Common Carrier. — Liability for Lost Baggage. — A railroad company is the insurer of the baggage of a passenger until its arrival and discharge at the place of its destination, and until the owner has reasonable time and opportunity to claim it and remove it. p. 574-</p> <p>Same. — Common Carrier. — Baggage.—Where a passenger is informed of the particular time of the arrival of his baggage, notice of its arrival is not necessary in order to relieve the carrier of its liability as a common carrier. . p. 574•</p> <p>Same. — Common Carrier. — Baggage.—Warehouseman.-—Where baggage is not called for within a reasonable time, it is the duty of the carrier to store it, and when this is done its liability as a carrier ceases, and that of warehouseman attaches, pp. 574, 575.</p> <p>Same. — Baggage.—Liability as Warehouseman. — A railroad company is only bound to the exercise of ordinary care in storing and caring for unclaimed baggage, p. 575.</p>

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

<p>Complaint. — Action Against Sheriff. — Payment of Liens out of Order. —A complaint against a sheriff to recover the surplus remaining from the sale of real estate under a foreclosure proceeding which alleged that plaintiff was the holder of a certificate of purchase of such real estate at a prior foreclosure sale thereof under a junior mortgage, and that such surplus was paid to a judgment creditor whose lien was junior to plaintiff’s lien, is not bad for failing to state the name of the owner of the land at the time of the decree of foreclosure of the junior mortgage, or the mortgagor, where it was alleged that certain parties named were defendants in such proceeding, and that plaintiff became the purchaser of the real estate at the sheriff’s sale, and which also alleged that plaintiff was a party to the foreclosure of the senior mortgage, and that it was therein decreed that plaintiff held the next oldest lien on the real estate, pp. 590-692.</p> <p>Liens. — Priority.—Satisfaction,—Sheriffs.'— Where the writ under which a sheriff made a sale of real estate contained notice that plaintiff's lien was second to that of the person for whom the sale was made, it was the duty of the sheriff to apply the surplus arising from the sale to the satisfaction of such lien without demand. pp. 592, 593.</p> <p>Sheriffs. — Foreclosure Sales.— Misapplication of Surplus. — Where the writ under which a sheriff's sale of real estate was made stated the name of the person holding the next oldest lien, the sheriff is liable on his official bond for the application of a surplus arising from such sale to another judgment lien junior to that of the person named in the writ. pp. 593, 594.</p>

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

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

<p>Special Finding. — Executors and Administrators. — Exceptions to Report. — Practice.—The trial court may make .a special finding of facts and state its conclusions of law thereon, as provided by section 551, Horner’s R. S. 1897, in the trial of exceptions to an administrator’s report, pp. 616, 617.</p> <p>Same. — Objections. — When Made for First Time on Appeal. — Appeal and Error. — Where no objections were interposed by the complaining party in the court below to the court making a special finding of the facts he will not be heard to complain of same on appeal. p.,617.</p> <p>Practice. — Venire De Novo.- — A venire de novo should be granted where a verdict or finding is so imperfect, ambiguous, or uncertain that it will not support a judgment, p. 618.</p> <p>Same. — Venire De Novo. — A written mqtion need not be made for a venire de novo. p. 618.</p> <p>Executors and Administrators. — Reports.—Exceptions.—An administrator’s report may be contested by exceptions filed thereto. p. 619.</p> <p>Executors and Administrators.— Decedents’ Estates. — Claims.— Mortgages.— An administrator of a decedent’s estate is properly credited in his report as such administrator with the amount of a mortgage assumed by decedent in his lifetime in the purchase of real estate, paid by such administrator, although the mortgage was not filed as a claim against the estate, pjp. 619-625.</p>

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

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

<p>Appeal. — Review of Conflicting Evidence. — Where the evidence is conflicting the verdict of the jnry will not he disturbed on appeal. p. 653.</p> <p>Instructions. — Special Verdict. — Harmless Error. — Where the jury is instructed to return a special verdict the giving of general instructions is harmless error, p. 658.</p>

<p>Gaming. — Wager.—Disaffirmance.—Recovery of Money in Hands of Stakeholder. — Either party to a wagering contract may disaffirm such contract before the determination of the event upon which the wager is laid, and may maintain an action against the stakeholder for the recovery of the money or property in. his hands so wagered, after a demand made upon him for the surrender thereof.</p>

<p>Replevin. — Demand.—Where personal property is unlawfully taken it is not necessary to demand the return of the property before bringing an action in replevin, p. 658.</p> <p>Mutual Benefit Association. — Rights of Seceders to Lodge Property. —Where the majority of the members of a subordinate lodge withdraw from the jurisdiction of the grand lodge, the minority, who continue steadfast in their allegiance, and to whom the charter was again delivered, are, as between them and the seceding majority, entitled to the property of the lodge, pp. 659-668.</p>

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

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

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

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

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

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

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

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

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

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

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

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