Volume 21 — Indiana Appellate Court Reports

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

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

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

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

<p>Master and Servant. — Negligence in Furnishing Defective Tool.— Complaint. — In an action by a servant against the master for damages resulting from a defective implement furnished, it is not necessary to allege that the plaintiff carefully examined the implement before proceeding to use it. p. SI.</p> <p>Same. — Negligence.—Special Verdict. — In an action against the proprietor of a lumber yard for damages for injuries sustained by plaintiff employe while driving a team hitched to a lumber truck, a special verdict found that the injury was caused by the breaking of a linchpin; that the pin had been greatly worn by constant use, which worn condition conld not be seen on account of the dirt and grease covering it and the outer portion of the hub; that it was no part of the plaintiff’s duty to inspect the truck; and that the defendant had used the truck in his yard for nearly two years prior to the time of plaintiff’s injury, and had made no inspection thereof. Held, that the defendant was liable, pp. 31-35.</p> <p>Instructions. — Special Verdict. — Practice.—The giving of instruc- • tions as to the law of the case is improper- in cases where the jury has been ordered to return a special verdict, and the action of the court in giving or refusing to give such instructions is not reversible error, p. 36.</p>

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

<p>Principal and Surety. — Extension of Time of Payment. — Release of Surety. — In order that the extension of time of payment may release a surety it must appear that it was for a consideration, for a time certain, and without the surety’s consent, and that the holder knew that the person seeking to be released was a surety, p. 41.</p> <p>Same. — Extension of Time of Payment. — Equitable Estoppel. — In an action on a promissory note by the payee against the principal and surety, the surety answered that after the note became due the payee told him that he had extended the time of payment and had agreed to give the principal one year more time; that by reason of such statement the surety was induced to neglect any and all means he might have used for his own protection; and that at the time of such extension the principal was solvent, and that at the time suit was brought he was insolvent. Held, that such answer did not plead an equitable estoppel, as.it did not appear from the pleading that the extension of time was without the knowledge or consent of the surety, p.</p>

<p>Decedents’ Estates. — Claim for Board of Decedent. — Evidence.— Plaintiff filed a claim against his sister’s estate for board and care. The evidence showed that she lived with him from the time she was a child until her death at the age of twenty-eight; that plaintiff’s family was large and the sister was treated as a member of the family and assisted with the housework; there was no agreement to receive pay for her services, nor to pay for board or care received by her. Held, that the facts and circumstances were not such as to imply a promise to pay for board and care. pp. 43-45.</p> <p>Same. — Claim.-—-Evidence.—-No error was committed in refusing to allow a claim against a decedent’s estate for feed and care of a pony, where the evidence showed that decedent, a sister of the claimant, lived with him as a member of his family, and there was no agreement as to keeping the pony. pp. 45, 46.</p>

<p>Fixtube. — Rouse Built by Mistake Upon the Land of Another. — Conversion. — E being the owner of a certain tract of real estate executed a mortgage thereon, and, with the money thus procured, built a dwelling house, but by mistake the house was located upon - the land of another. Such owner, after learning his mistake, sold and conveyed the real estate, falsely representing to the grantee that the house was on the land sold. The mortgage was afterwards foreclosed, and the foreclosure purchaser removed the house onto the land so purchased. E brought srut for conversion of the house. Held, that the action could not be maintained, p. 48.</p> <p>Same. — Dwelling Rouse. — That the foundation of a dwelling house consisted only of blocks set on end can have no bearing on the question as to whether or not the house was built as a permanent fixture, p. 49.</p>

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

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

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

<p>Evidence.— Appellate Court Will Not Weigh. — The Appellate Court will not weigh the evidence for the purpose of determining the preponderance thereof, p. 76.</p> <p>Same. — Bills and Notes. — Documentary Evidence. — A chattel mortgage offered in evidence in a suit on a promissory note given for the purchase price of a gas engine, for the purpose'of showing the value of the engine, was properly rejected, where the mortgage covered a large number of other chattels besides the gas engine, and no value was placed upon any specific article therein described, pp. 76, 76.</p>

<p>Limitation of Actions. — Bills and Notes, — Pleading.—A complaint on a promissory note, the note showing upon its face that it is barred by the statute of limitations, is not bad as against a demurrer, where the complaint does not show that plaintiff is not within some of the exceptions stated in the statute, pp. 77, 78.</p> <p>Same. — Bills and Notes. — Payment of Intereét. — The payment of interest on a promissory note by the principal will not suspend the running of the statute of limitations as to the surety, pp. 79, 80.</p> <p>Appeal and Error. — Evidence.—Act of 1897. — Where a transcript was filed in this court after the act of March 8, 1897, relative to the manner of bringing the evidence into the record became operative, the appeal will be governed by said act although the bill of exceptions embracing the evidence was signed and filed before the act went into effect, p. 81.</p>

<p>Decedents’ Estates. — Complaint to Set Aside Settlement. — A com-, plaint by creditors to set aside the final settlement report of a dece- . dent’s estate on the ground of fraud, under section 2558, Burns’ R. S. 1894, must show that such fraud worked pecuniary damages to the petitioners, pp. 885.</p> <p>Complaint. — When Defeet Not Cured by General Verdict. — A complaint failing to aver a material fact cannot be cured by general verdict, p. 85.</p>

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

<p>Insurance. — Action Against Railroad Company on Policy Procured for Employe. — An action cannot be maintained against a railroad company by the beneficiaries of an accident insurance policy for the benefits accruing under such policy, where the company took out the policy in an accident company for the benefit of plaintiff’s decedent, who was one of its employes, and retained from the wages of the insured the money to pay the premium, where it is not shown that defendant failed to apply the money so retained to the payment of premiums on the policy.</p>

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

<p>Justice of the Peace.— Authority of Cannot be Questioned in Action for Replevin. — Where one is acting as justice of the peace under an appointment, his authority cannot be questioned in an action brought against a town marshal to replevy goods levied on to satisfy a judgment rendered by such justice, pp. 107, 10S. Judgment. — Execution.—Variance. —A variance of five cents between the execution and the judgment on which the writ issued is not sufficient to destroy the identity of the judgment and render such writ void. 4 p. 109.</p> <p>Replevin. — Of Goods Levied On by Marshal. — Costs.—Pending an action in replevin against a town marshal and the execution creditor for goods taken on execution, the marshal returned a part of the goods not legally held by him. Afterwards judgment was rendered against the plaintiff as to the remainder of the goods. Held, that the court could properly make a division of the costs, taxing against the plaintiff all costs after the return of the property illegally held. p. 109.</p> <p>Same. — Action Against Marshal and Execution Creditor. — Costs.— In the trial of an action in replevin against a town marshal and the execution creditor special findings of the court showed that the property was detained by the marshal on whom the demand had been made; that the execution creditor did not advise that the levy be made, and at no time had possession of the property. Held, that the execution creditor was liable for no part of the costs, pp. 109,110.</p>

<p>Appeal and Error. — Finding of Trial Court May be Sustained Without Direct Evidence. — In civil actions the proof of circumstances from which a given inference may be drawn is sufficient to sustain the finding of the trial court, p. 112.</p> <p>Pleadin a — Conversion of Mortgaged Chattels. — Complaint.—Proof. —Variance.—Where a complaint by a mortgagee for the conversion of mortgaged property alleges that plaintiff is the owner and .entitled to the immediate possession of the property, proof of a breach óf a provision in the mortgage that if the mortgagor sold the property without the consent of the mortgagee the latter should be entitled to the unconditional possession thereof, is not a variance. pp. 112, US.</p> <p>Conversion.— Action Against Purchaser of Mortgaged Chattels.— Where a chattel mortgage provided that, if the mortgagor sold the mortgaged property without the consent of the mortgagee, the mortgagee should have the right to immediate possession of the property, it was not necessary in an action for conversion against the purchaser of the property to show that the mortgagor was insolvent. p. 131.</p> <p>Landlord and Tenant. — Contract of Tenancy Made by One of Several Tenants in Common. — Where, after the death of 'a landlord, a contract is made by one of the heirs to continue a tenant upon the land, such contract will be binding upon the remaining heirs who make no objection thereto, but stand by and see the crop put out and reaped by the person thus continued, pp. 113, 11^.</p> <p>Same. — Tenancy Not Destroyed by Transfer of Leased Land to Tenant’s Wife. — Where one held land as tenant of certain heirs to whom he was to pay a stipulated rent, the fact that such tenant’s wife became the owner of the land before the expiration of the lease did not destroy the tenancy, p. 111.</p> <p>Verdict. — Remittitur.—Erroneous Instruction as to Measure of Damages Cured. — An erroneous instruction as to the measure of damages is cured by the filing of a remittitur and the rendering of judgment for the correct amount, p. Ilk-</p>

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

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

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

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

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

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

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

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

<p>Nuisance. — Depositing Sewage in Stream. — Prosecution in Adjoining County. — Jurisdiction.— Criminal Laze. — Where sewage is deposited in a stream, in violation of section 2154, Burns’ R. S. 1894, prosecution may be instituted therefor, under section 1649, Burns’ R. S. 1894, in an adjoining county into which such offal was carried by the current of the river and deposited to the damage of the inhabitants of such county, pp. 168, 170-172.</p> <p>Appeal and Error. — Assignment of Cross-Errors. — Process.—The sufficiency of service of process cannot be raised by appellee in the Appellate Court without assignment of cross-errors, p. 169.</p> <p>Same. — Final Judgment. — Indictment.—Criminal Lazo. — Where the court sustained a motion to quash one count of an indictment and the prosecuting attorney entered a nolle prosequi as to the remaining count, and the court ordered the defendant discharged, and judgment was entered accordingly, such order and decree amounts to a final judgment from which an appeal will lie, although there was no judgment for costs, pp. 169, 170.</p> <p>Nuisance. — Public Place. — Wabash Fiver. — The Wabash River is a public place within the meaning of section 2154, Burns’ R. S. 1894, making it unlawful for any person to cause any offal or filth to be collected or remain in any place, to the damage or prejudice of others or the public, pp. 172-177.</p>

<p>Appeal. — Sustaining Demurrer to Complaint Not a Final Judgment. —Sustaining a demurrer to a complaint is not a final judgment, and from such ruling alone, without further action of the court, an appeal will not lie.</p>

<p>Officers. — Entitled Only to Salary Provided by Statute. — A public officer takes and holds his office for the compensation stipulated by statute whether the duties of the office be increased or diminished. p. 180.</p> <p>Same. — Action by County Against Cleric to Recover Illegal Fees.— Payment on Order of Judge No Defense. — Statutes Construed.— Under section 5854, R. S. 1881, construed with sections 6543 and 6544, Burns’ R. S. 1894, a circuit court clerk was not authorized to receive fees for certifying to the county auditor jurors’ and bailiffs’ bills from time to time during the term; although he complied with the provisions of section 6029, R. S. 1881, requiring an officer in doubt as to the proper charge to be made for services rendered to present the matter to the circuit judge, since the allowance of such fees was in violation of section 6030, R. S. 1881. pp. 181, 18S.</p> <p>Same. — Allowance of Illegal Fees by Board of Commissioners No Defense in Action to'Recover. — The fact that an illegal claim for fees was allowed to a circuit court clerk by the board of county commissioners is no defense to an action by the county to recover such fees. p. 188.</p>

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

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

<p>Contracts. — Consideration.—Conveyance of Real Estate. — Mortgagor and Mortgagee. — Breach of Contract. — Measure of Damages. — : Plaintiff, for the purpose of avoiding the foreclosure of mortgages on her land, conveyed same to the holder of the junior mortgage under written agreement that grantee would use all due effort to sell same at the best possible price and pay to her all money remaining after the satisfaction of the mortgages. Grantee, without any special effort, sold the land for a sum sufficient only to discharge the mortgages, which was more than $600 below the market value of the land. Held, that the conveyance of the real estate was a sufficient consideration for the promise to use due effort to sell the same, and that grantor could recover of grantee the difference between the price obtainable by reasonable effort, which in the absence of proof to the contrary would be the actual market value of the land and the price at which it was sold.</p>

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

<p>Notary Public. — Official Acts Not Questioned Collaterally. — City Attorney. — Where a notary public accepts the office of city attorney, his official acts thereafter as notary public cannot be questioned in a collateral proceeding.</p>

<p>Replevin. — Sales.—Breach of Warranty. — Special Verdict.- — In an action in replevin to recover an engine seized by tbe seller upon default of payment in compliance with the terms of a mortgage thereon, a special verdict showing a breach of warranty, which fails to show any damages resulting from such breach, is not sufficient to sustain a judgment for plaintiff, p. 215.</p> <p>Sale. — Warranty.—Notice.—Waiver.—A .contract of sale and warranty provided for written notice to be sent by registered letter to the vendor within a specified time in the event the machine sold should not fulfill the terms of the warranty. On a breach of the warranty a notice was sent, but not by registered letter. The notice was received and acted upon. Held, that by receiving and acting upon the notice the vendor waived the requirement for registering. pp. 215, 216.</p> <p>Sales. — Defective Machine. — Breach of Warranty. — Where a machine which failed to fulfill the warranty made by the vendor is retained and settled for by the vendee upon the promise of the vendor to remedy the defect, the vendee does not lose his rights under the .warranty, p. 217.</p>

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

<p>Prom tlie Wabash Circuit Court.</p>

<p>Appeal and Error. — Assignment of Error. — Suppression of Deposition. — Praetiee.—In order to present any question on appeal as to the action of the court in sustaining a motion to suppress parts of a deposition, such ruling must be specified as a cause for a new trial. p. 234.</p> <p>Same. — Assignment of Error. — Refusal of Instructions. — An assignment of error that the court erred in giving certain instructions, and in refusing to give certain instructions therein specified, presents no question on appeal, p. 234.</p> <p>Same. — Instructions.—Record.—In order to present any question on appeal as to giving or refusing to give instructions it must be shown that such instructions were filed as a part of the record; instructions offered and refused are not a part of the record by an entry that “ all the instructions to the jury are now filed and ordered to be made a part of the record in the cause without bill of exceptions,” followed by a copy of the instructions given and refused, pp. 234,235. Same. — Instructions.—Error cannot be predicated upon the action of the court in giving instructions where no exceptions were reserved in the court below, p. 236.</p> <p>Sales. — Warranty.—Notice.—Principal and Agent. — Where machinery was sold under warranty to do good work, conditioned that the warranty should be satisfied unless the purchaser give the company and its agent through whom the sale was made written notice within ten days after trial and failure to fulfill the terms of the warranty, the seller is bound by a notice given to its selling agent where such agent accepted the notice and acted thereon, pp. 236-241. Evidence. — Weight Of. — The Appellate Court cannot weigh the evidence for the purpose of determining the preponderance thereof. p. 241.</p>

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

<p>Husband and Wife. — Enticing and Alienating.— Complaint.— A complaint by a husband for damages for alienating the affections of his wife by false and malicious statements need not set forth what was said by the defendant, or even state the character of any statement made by him to her whereby her affection was alienated and she was induced to separate herself from her husband, p. 252.</p> <p>Limitation of Actions. — Husband and Wife. — Enticing and Alienating.— An averment in a complaint for alienating the affections of plaintiff’s wife to the effect that defendant’s wrongful conduct which produced the result for which plaintiff sought damages began four years before the suit was brought did not show that the action was barred by the statute of limitations where it appeared from the complaint that the injurious consequence of such conduct was not fully accomplished until the wife abandoned plaintiff less than two weeks before the commencement of the action, pp.252,253.</p> <p>Husband and Wife. — Enticing and Alienating. — Complaint.— A complaint for damages for alienating the affections of plaintiff’s wife is not bad for failing to allege that defendant had knowledge of the marital relation between plaintiff and his wife, where it was alleged that defendant had knowingly, purposely and maliciously alienated the affection of plaintiff’s wife from him, and broken up his family, p. 253.</p>

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

<p>Work and Labor. — Labor Performed for and Allowed by Receiver.— Lien. — Res Adjudicata. — Au action was instituted involving and affecting certain mortgaged property, and a receiver was appointed therefor. The mortgagee filed a cross-complaint to the action and obtained the ownership of the property, and afterwards filed exceptions to that part of the receiver’s report allowing a certain claim for labor performed for such receiver. Issues were joined on the exceptions resulting in a judgment for the amount of the claim, and making the same a lien on the property. Held, in a subsequent action to enforce payment of the claim for labor, that the rights of the parties were adjudicated in the proceedings had upon the exceptions to the receiver’s report.</p>

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

<p>New Trial. — Special Judge. — No error was committed in overruling a motion for a new trial on the ground that a special judge arbitrarily and without authority, set the cause for trial, over the objection of defendant, where no question was raised at the time as to the authority of the special judge, and defendant proceeded to trial before the regular judge without objection, where it is not shown that defendant was prejudiced by not having the trial postponed. pp. 266-268.</p> <p>Instructions.— Appeal and Error.— Assignment of Error. — New Trial. — Where it is assigned as a cause in a motion for a new trial that the court erred in giving an entire series of instructions, the assignment will not be available on appeal if any of the instructions be not erroneous, pp. 268, 269.</p> <p>Verdict. — Motion to Make More Specific. — Practice.—A motion to make the verdict more specific made after the jury has been discharged comes too late. pp. 269, 270.</p> <p>Same. — Motion to Make More Specific. — Practice.—A motion to have the verdict made more specific without indicating in what respect it was desired to have the verdict modified is not sufficiently definite. pp. 269, 270.</p>

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

<p>Mechanic’s Lien. — Notice.— General Employment. — Plaintiffs filed notice of intention to hold liens for material furnished and labor performed in the construction and repair of a building within sixty days from the date the last item of labor was performed. The evidence showed that the work was begun more than a year before the filing of the notice; there was no certain or specified amount of work to be done, no certain amount agreed to be paid, no certain time for payment, and no certain time when the services should end. Held, that the contract of employment was continuous, and that such notice will reach back and include all of the items charged under the general employment.</p>

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

<p>Intoxicating Liquors. — Instructions.—Courts Know Judicially that Beer is Intoxicating. — In a prosecution for selling “intoxicating ' liquors, to wit, beer” in a less quantity than a quart at a time in, violation of section 7285, Burns’ R. S. 1894, no error was committed in instructing the jury that the question as to whether beer is an intoxicating liquor was not one for their determination, as courts take judicial notice that beer is intoxicating, pp. 302-305.</p> <p>Trial. — Misconduct of Attorney. — A cause will not be reversed on account of an objectionable statement made by the prosecuting attorney in his argument to the jury which was excepted to by defendant’s counsel and assigned as a cause for a new trial, where the court at the time admonished the prosecuting attorney to keep within the evidence, and cautioned the jury not to consider such statement, and where no exception was taken to such action of the court, it not appearing that defendant was prevented from having a fair trial on account of such statement, pp. 305, 306.</p>

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

<p>Appeals. — Must be Taken in Manner Prescribed by Statute. — There can be no appeal from the decision of a court which has by the statute jurisdiction of the subject-matter of the action, and has acquired jurisdiction of the person, unless an appeal is expressly authorized by statute; and all appeals must be taken in the manner directed by the statute authorizing them. p. 314-</p> <p>Criminal Law. — Appeals from Justice of the Peace. — Recognizance Essential. — Where one tried before a justice of the peace and convicted of a misdemeanor desires to appeal, he must enter into a recognizance, as provided by section 1712, Burns' B. 8. 1894. It is not sufficient that a transcript of the proceedings be certified to the circuit court, and that he submit himself to the actual custody of the court, and remain in jail until tried by the circuit court, p. 314-</p>

<p>Witnesses. — Competency.—Suit Between Two Estates. — Statute Construed. — Section 506, Burns’ R. S. 1894, providing that where one party to a transaction is dead, and his rights have passed to another who represents him as executor or administrator, the surviving party to the transaction shall not testify to matters which occurred during the lifetime of the decedent, does not apply in a suit between two estates.</p> <p>Same. — Competency.—Decedent’s Estate.— Statute Construed.— The term “party” as used in section 506, Burns’ R. S. 1894, means a party to the issue, and not merely a party to the record, and a person is not an incompetent witness under that section, unless he has some interest in the result of the suit in common with the party, calling him.</p>

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

<p>Master and Servant. — Place Where Servant is Required to Go Must be Kept in Safe Condition. — Where an employe is required in the line of his duty and employment to go to a bin from time to time to get scrap iron to be used in and about the forges of a blacksmith shop, it is the duty of the employer to keep the bin in a reasonably safe condition so as to protect the employe from injury, pp. 826-328. Same. — Safe Place to Work. — An employe has a right to assume that a place where he is required to go from time to time in the line of his employment is kept in a reasonably safe condition, p. 827. Same. — Safe Place to Work. — Inspection by Master. — It is the duty of the employer to use due diligence in providing a safe place for an employe to work, even though it requires an inspection by some duly authorized officer for that purpose, p. 328. ,</p> <p>Appeal and Error. — Conflicting Evidence. — The Appellate Court will not weigh conflicting evidence, p. 329.</p> <p>Same. — Instructions.—A. general objection to instructions as a whole will not be considered on appeal, where no particular defects are pointed out. p. 329.</p> <p>Same. — Instructions All Construed Together. — A cause will not be reversed by this court because one instruction is not technically correct, where the instructions taken as a whole state the law correctly. p. 830.</p> <p>Instruction. — Master and Servant. — Proximate Cause. — An instruction that “a railroad company is not an insurer of the lives and limbs of its servants, and it cannot be held liable for an injury sustained by its servants, unless it was guilty pf some act of negligence which resulted in the injury, and which was not contributed to by the carelessness and negligence of the servant himself,” correctly expresses the law, though it does not in terms refer to the doctrine of proximate and remote cause, p. 331.</p> <p>Same. — Master and Servant. — Hazardous Employment. — An instruction that “it is the duty of one engaged in a hazardous employment to keep a constant lookout for danger that besets him, and to which he is exposed, of which he had equal advantages and opportunities with the master to know, and fully understand, he cannot recover for an injury as a result of such danger,” is not rendered prejudicial to the master by the expression “and fully understand,” since the expression placed upon the servant an additional burden, p. SSI.</p> <p>Same. — Verdict.—When Court May Direct. — The court is only authorized to direct a verdict for defendant where there is no evidence to support plaintiff’s cause of action, p. SSS.</p>

<p>Contract. — Rescission.—A party cannot affirm that part of a contract in his interest, and repudiate the remainder. A contract can only be rescinded in fofo. pp. 336, 337.</p> <p>Same. — Chattel Mortgage. ■— Consideration. — A wholesale grocer offered to furnish a retailer, who was indebted to him, fifty dollars worth of goods if the retailer would execute a note and mortgage on his stock due one day after date covering the old and new account. The note and mortgage were executed, but plaintiff learning of a prior recorded mortgage on the stock did not deliver the goods, but immediately foreclosed the mortgage. Held, that as the mortgagee had not complied with his part of the contract, in consideration of which the mortgage had been given, he could not enforce the mortgage, pp. 335-337.</p>

<p>Negligence. — Personal Injury. — Fellow Servant. — Contributory Negligence. — Plaintiff was injured by the falling of a scaffold which he helped to build. The scaffold became unsafe through alterations made by two competent workmen and fellow servants, under the direction of a foreman. The manner of making the alterations of the scaffold was wholly within the discretion of the two workmen. Plaintiff wás not warned that the alterations were being made, but was within five feet of where the work was being done and must have known it. Held, that the injury resulted from the negligence of the fellow servants to which plaintiff contributed, pp. 838-34%-</p> <p>Same. — Contributory Negligence. — Co-Employes’ Inability Act. — The co-employes’ liability act (section 7083 et seq., Burns’ R. S. 1894), does not give an injured employe any right of action, where he was not in the exercise of due care and diligence when injured, p. 843.</p>

<p>Replevin. — Writ.—Return.—Jurisdiction.—The return of the doings of a constable upon the writ is not necessary to confer jurisdiction in an action of replevin.</p>

<p>Benevolent Society. — Construction of Policy. — Suicide.—A policy of insurance in a mutual benefit society designated five instances in which there should be a participation in the benefit fund of the society, the last of which was that the sum of $100 would be paid as a funeral fund, “if death shall result from any cause at any time ■while this member is in good standing.” There was a further provision that “no benefits will be paid for self-inflicted injuries.” Held, that the company was not hable for the funeral benefit upon the death of the member by suicide.</p>

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

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

<p>Bills and Notes. — Negotiable Instruments. — Interest Due at Time of Purchase of Note. — A bona fide purchaser for value of negotiable paper is within the protection of the law merchant, although the interest on thesnote purchased was due and unpaid at the time of the purchase, pp. 858-360,</p> <p>Evidence. — Rills and Notes. — Admission by Joint Maker. — A letter from one of the joint makers of a promissory note to the payee thereof containing an admission is admissible in evidence in an action on the note by the assignee thereof, p. 860.</p>

<p>Negligence. — Complaint.—Sufficiency.—A complaint by an employe against the employer for damages on account of injuries sustained by falling into an open and unguarded excavation for a well while traveling from a boarding tent in defendant’s field to a town one-fourth of a mile distant is not bad for failing to allege that defendant directed plaintiff to take the route he took, or go in the direction taken, where it was alleged that he was directed by defendant to go to said town for lodging, that there was no road or traveled way from the tent to the town, and that he started across the field in the direct route to said town. pp. 868-364.</p> <p>Interrogatories to Jury. — Conflict with General Verdict. — Judgment. — Answers to interrogatories in an action for damages on account of injuries sustained by plaintiff from falling into an open well while going from a boarding tent to a town one-fourth of a mile distant, at the direction of defendant, who was his employer, showing that he could have gone west of the tent 150 feet to a private roadway, then north 475 feet to a public road, then west 1,150 feet to the town, without any obstructions, instead of going the direct route across the field and coming in contact with the well; that the sand and dirt from the well was thrown upon the ground immediately around it, extending twelve or fifteen feet; that when he came in contact with the dirt and sand he did not stop to ascertain whether there was any danger, are not sufficient to justify the court to render judgment for defendant notwithstanding a general verdict returned by the jury for plaintiff, pp. 364-367.</p> <p>Same. — Conflict with General Verdict. — Where a general verdict in an action for damages on account of personal injuries sustained, returned under the provisions of section 546, Horner’s R. S. 1897, finds negligence on the part of defendant and freedom from negligence on the part of plaintiff contributing to his injury, it will not be set aside as being in irreconcilable conflict with answers to interrogatories, where, under the issues, other facts might have been shown consistent with the general verdict, as under such section a party is not required to prepare interrogatories to elicit all the facts pertinent to the issues, p. 367.</p> <p>NegligeNce. — When Question for Jury. — Where different inferences may be fairly drawn from the conceded facts as to negligence, the question of negligence must be submitted to the jury. pp. 308, 300.</p> <p>Same. — Negligence of Co-Employe. — The doctrine of the negligence of co-employe will not apply to defeat an action by an employe against his employer for injuries received by falling into an open well, where the hole was dug by employes of plaintiff’s employer, engaged in a different kind of work, and not co-operating with plaintiff in the line of work in which he was engaged, pp. 869, 370.</p>

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

<p>Appeal and Error. — Assignment of Error. — Ruling on Pleadings.— Special Verdict. — Errors assigned as to rulings on the pleadings need not be considered, where the questions urged arise on the special verdict, p. 876.</p> <p>Attachment and Garnishment. — Jurisdiction.—Fraud.—Where a garnishee responded to a summons served upon him, and made oral answer admitting an indebtedness to the defendant in the attachment proceedings, the court acquired such jurisdiction of his person as enabled it to render a valid judgment against him for the amount of the admitted indebtedness, and, in the absence of fraud, the judgment so rendered will protect the garnishee from the demands of the defendant in such action in a subsequent action by him against the garnishee for the recovery of the same debt. pp. 376-880. Fraud. — Question of Fact. — Fraud is a question of fact, and cannot be presumed or inferred as a matter of law. p. 380.</p> <p>Special Verdict. — Ultimate Facts. — Inferences. — The Appellate Court cannot draw conclusions or inferences from the ultimate facts found in a special verdict, but must take such facts as found by the jury. p. 880.</p>

<p>Pleading. — Complaint.—Demurrer.—A complaint, to withstand a demurrer for want of sufficient facts, must state a cause of action in favor of all the plaintiffs, p. 885.</p> <p>Same. — Complaint.—Husband and Wife.— Where a complaint by husband and wife states a cause of action in favor of both, a statement therein of other facts constituting a cause of action in favor of the husband alone, while improper, does not render the complaint bad on demurrer for want of sufficient facts, pp. 385, 386. Municipal Corporations. —Improvement of Street. — Diverting Surface Water. — A municipal corporation, in the lawfully authorized improvement of its streets, cannot without liability divert surface water from its natural courses by an artificial channel, and thereby cause it to flow upon adjacent property, p. 389.</p> <p>Same. — When City Required to Provide for the Escape of Surface Water. — Sewers.—Nuisance.—It is the duty of a city to provide reasonably sufficient means of escape for the surface water, for the escape of which it has created the necessity, and its failure to perform that duty will give right to successive actions-for recurring injuries to an adjacent owner of real estate without regard to the time of such owner’s purchase of the premises, pp. 389, 390.</p> <p>Appeal and Eeeob. — Bill of Exceptions. — Instructions Improperly Incorporated. — An original bill of exceptions containing the evidence is not rendered insufficient, as such, merely because the court’s instructions to the jury are improperly incorporated therein. p. 391.</p>

<p>Municipal Corporations. — Nuisance.—A municipal corporation is liable in damages for maintaining a nuisance the same as an individual. pp. 393, 394-</p> <p>Nuisance.' — Public Nuisance May Become a Private Nuisance. — A public nuisance may become a private nuisance by inflicting upon a particular individual some special or peculiar damage, p. '394. Same.— Municipal Corporations. — The fact that plaintiff was a resident of the city, and the city committed the acts complained of in an effort to keep its streets clean for the benefit of the public, will not destroy his right to maintain an action for damages against such city for creating a nuisance, pp. 394, 395.</p> <p>Same. — Damages.—Contributory Negligence. — The fact that plaintiff deposited,garbage and filth upon a street which created bad odors and noxious vapors will not relieve the city from liability for depositing garbage and filth near plaintiff’s premises of such a nature as to produce sickness, where it was shown that odors arising from the garbage deposited by plaintiff was not the cause of his sickness of which he complained, pp. 395, 396.</p> <p>Instructions.— Joint Assignment of Error. — New Trial. — Where the action of the court in refusing to give instructions was presented by a joint assignment in the motion for a new trial, no error was committed in overruling the motion if either of the instructions was properly refused, p. 397.</p>

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

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

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

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

<p>Instructions. — Partnership.—Decedents’ Estates.— Claims. — No error was committed in instructing the jury in the trial of an action on a claim against a decedent’s estate, filed by a member of a law firm for legal services, that if the jury found that the claim or any part thereof was for any transaction had between decedent and any firm of which plaintiff was a partner, and that such transaction was a part of the firm business plaintiff could not recover, pp.422-424.</p> <p>Evidence. — Decedents’ Estates. — Partnership.—The admission in evidence of checks given by decedent payable to the law firm of which plaintiff was a member would not amount to reversible error in the trial of an action on a claim against a decedent’s estate, where the question was in issue whether the services mentioned in the claim were the personal services of plaintiff, or the services of the firm of which he was a member, p. 4%4'-</p> <p>Same. — Decedents’ Estates. — Partnership.—No error was committed in striking out the testimony of a witness in explanation of a letter written to decedent by the firm of which plaintiff was a member in the trial of an action on a claim against the decedent’s estate, where the letter was unambiguous, and the evidence stricken out was not in fact an attempt to explain the letter, but simply the statement of the witness’ conclusion that the contents of the letter had nothing to do with the action, p. 4%4.</p> <p>Same. — Contradiction of Written Instrument. — Evidence tending to contradict the terms of a check introduced in evidence is properly excluded, where such check was unambiguous, pp. 4®4, 4%5.</p> <p>Same. — Decedents’ Estates. — Administrator as Witness. — An administrator is a competent witness as to his decedent’s signature to a written contract in favor of the estate, in an action on a claim against such estate, p. 4®5.</p> <p>Same. — Decedents’ Estates.— No error was committed in admitting in evidence certain leases in the trial of an action on a claim against a decedent’s estate, a part of the claim being for renting and looking after decedent’s farms, where the leases tended to show that decedent looked after his farms himself, pp. 4%5, 4%6.</p> <p>Same. — Decedents’ Estates. — Documentary Evidence. — A letter, written by the law firm of which plaintiff was a member to decedent, was properly admitted in evidence in the trial of an action on a claim against such decedent’s estate for the purpose of showing that decedent was dealing with the firm instead of plaintiff alone, where the question was in issue whether the services for which the claim was filed were the personal services of the plaintiff, or the services of the firm of which he was a member, p. 4%6.</p> <p>Same. — Check.—Evidence of Payment. — Presumption.—The fact that a check was marked “paid,” and was found among the papers of decedent who drew it, would raise the presumption that the check had been paid. pp. 4%&< 4~‘-</p>

<p>Agency.— Husband as Agent for Wife in Renting Her Separate Property. — "Where a husband acts merely as the agent oí his wife in renting her separate real estate, hé may bind his wife, but does not render himself liable upon the failure of his wife to carry out the terms of the rental contract so made. jpp. 430, 431.</p> <p>Appeal. — Bill of Exceptions. — A bill of exceptions, to become a part of the record, must he filed with the clerk after having been signed by the trial judge, p. 431.</p> <p>Practice. — Recovery Must be Upon Theory of Complaint. — A party must recover, if at all, upon the theory of at least one paragraph of his complaint, p. 433.</p>

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

<p>Justices of the Peace. — Jurisdiction.—Bastardy.—Justices of the peace have complete jurisdiction to hear and determine bastardy cases, and a judgment rendered by a justice of the peace is a bar to all prosecutions for the same cause, p. jjl.</p> <p>Fraud. — Representations.—Fraud cannot be predicated upon a mere promise to do something in the future, although such promise be fraudulently made, and aJterwards broken; fraudulent representations, to be available, must relate to a past or an existing fact.- p. jJiS.</p> <p>Bastardy. — Former Adjudication. — A reply to an answer pleading former adjudication in a bastardy proceeding alleging that fraudu-' lent representations were made to relatrix in order to induce her to sign an entry dismissing the proceeding before the justice of the peace relied on in defendant’s answer, and that relatrix was at'the time a minor, is not sufficient, where a finding and entry was made by such justice of the peace, as provided bj; section 994, Horner’s R. S. 1897, showing that suitable provision had been made and secured for the maintenance of the child, and it was not alleged that such finding was securedfrom the justiceof the peace by fraud.jyi.</p> <p>Same. — Judgments.—Dismissal.—A proceeding in bastardy is a civil action, and a judgment dismissing a bastardy suit, although obtained by fraud, cannot be set aside without refunding, or offering to refund, to defendant the money paid by him to secure the judgment of dismissal, p. JJ/S.</p>

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

<p>Appeal. — Criminal Law. — That the verdict is not sustained by the evidence is not a cause for a new trial in a criminal case. p. 451.</p> <p>Trespass .- — Highway.—Easement of Abutting Owner. — The owner of lands abutting on a public highway has such a proprietary right to the center of the highway that the refusal of one unlawfully upon such part of the highway to depart upon notice renders him liable to prosecution for criminal trespass, pp. 453-455.</p> <p>Highways. — Pipe Line for Carrying Natural Cas. — The construction of a pipe line along a public highway, for the purpose of carrying natural gas, is an imposition of an additional burden upon the fee from that embraced in the easement for highway purposes, for which compensation must be made to the owner, p. 454-</p> <p>Trespass. — Unlawfully Upon Public Highway. — Constructing Pipe Line. — Where one enters upon a public highway, and without a • grant from the county commissioners, or permission of the owner of the fee, constructs upon and along such highway a pipe line for carrying natural gas, such person becomes a trespasser, pp. 453,454-</p> <p>Same. — Talcing Up Pipe Line Unlawfully Constructed on Public Highway. — Where a pipe line was constructed along and upon a public highway without a grant from, the county commissioners, and without the permission or knowledge of the owner of the fee, it is unlawful for one to go upon such highway and remove the pipe line without the consent of the owner of the fee. p. £54.</p> <p>Same. — Highways.—Unlawful Construction of Pipe Line. — -Estoppel. —Where a pipe line was unlawfully constructed along and upon a public highway without the knowledge or permission of the owner of the fee, the fact that the owner of the fee, after the construction, made no objection to the line or its maintenance will not estop such owner from asserting the right to prohibit the removal of the pipe line. pp. 455, 456.</p> <p>Same. — Highways.—Unlawful Use. — Where one goes upon a public highway to use it for any purpose not contemplated by law, and not having taken the proper steps to acquire the right to use the highway for the purpose desired, such person is a trespasser within the meaning of section 2018, Burns’ R. S. 1894. pp. 456, 457.</p>

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

<p>Prom thé Clay Circuit Court.</p>

<p>Guaranty. — Absolute Guaranty. — Notice.—Where an absolute guaranty is made, no notice of acceptance by the guarantee is required. p. 480.</p> <p>Bond. — To Indemnify Vendor against Loss. — Notice of Acceptance Not Necessary. — A bond “to indemnify or make good any loss by reason of nonpayment of goods” sold to the principal on the bond, and a bond conditioned that the “parties hereto” agree to indemnify the obligee “against any and all loss that may arise * * * and all persons interested in said contract are hereby secured,” are original joint and several undertakings, and require no notice of acceptance. pp. 411-48%.</p> <p>Pbactice. — Action on Bond. — Where one joins with a principal debtor in executiiig a bond, the obligee may, upon default, sue both obligors in the same action, p. 48%.</p> <p>Same. — Judgment Entered on Last Day of Term. — Motion in Arrest. —The fact that special findings and conclusions of law were entered on the last day of the term, and judgment rendered on the same day, does not prevent the filing of a motion in arrest of judgment. pp. 48%, 488.</p>

<p>Negligence. — Action by Child. — Proximate Cause. — Special Verdict. —To authorize a judgment for plaintiff on a special verdict, in an action by a child for alleged injuries caused by the negligence of the defendant, the verdict must not only show that the infant was of such tender years that it was non sui juris, but facts must also be found from which the court could, as a matter of law, adjudge the defendant guilty of negligence which was the proximate cause of the injury.</p>

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

<p>Pleading.— Complaint. — Attached for First Time on Appeal. — A complaint attacked for the first time on appeal will be held good if it is sufficient to bar another action for the same cause, p. 494-</p> <p>Evidence. — Warranty.—Evidence in the trial of an action for breach of warranty in the sale of a stallion that plaintiff took the horse home and advertised him in season, with the pedigree as warranted, is sufficient to show that plaintiff relied and acted upon the representations made by defendant, pp. 494, 495.</p>

<p>Pleading. — Complaint.—Exhibit.—Variance.—Where, in an action upon a contract of employment, the complaint alleges that the contract was for the term of one year from the date of its execution, and a memorandum filed with the complaint as an exhibit shows that the employment was not to be performed within a year from the making thereof, the exhibit controls, p. 497.</p> <p>Contracts. — Part Performance. — Statute of Frauds. — The doctrine of part performance has no application to contracts that cannot be performed within a year. p. 498.</p> <p>Statute oe Frauds.' — Order of County Commissioners. — Attestation. — In an action against a board of county commissioners based upon an order set out in the proceedings of such board, and signed “Peter Dillon, P. B.,” such order cannot be held to be signed by the board so as to take the contract expressed therein out of the statute of frauds, in the absence of a showing that the signature was by one lawfully authorized to make the attestation on behalf of the board. p. 500.</p>

<p>Appeal and Error. — Assignment of Errors. — New Trial. — Errors of law occurring at the trial are causes for a new trial, but cannot be assigned independently as error on appeal, p. 50S.</p> <p>Same. —Evidence Not Weighed on Appeal. — A judgment will not be reversed either in a civil or criminal case where there is evidence which fairly supports the verdict of the jury on every material point. p. BOJ,.</p> <p>Instructions. — When Instruction is Incomplete.— Appeal.— Error cannot be predicated on the giving of an incomplete instruction, where an additional or more definite instruction was not requested by the complaining party, p. 60J.</p> <p>Highways — Dedication Need Not Be in Writing. — In order to constitute a dedication for highway purposes, it is not necessary that there be a grant or conveyance by deed or writing on the part of the owner of the land. p. 506.</p> <p>Same. — Implied Dedication. — Where a landowner, by open and visible acts, unequivocally indicates to the public an intention to throw open a street or alley, and the public acts upon the faith that there was a dedication, the law will treat the acts of the owner as constituting a dedication, p. 505.</p> <p>Same. — Dedication.—Presumption.—The unopposed use of a highway by the public over the land of an individual who»is cognizant of the fact, for a short space of time, may be sufficient to raise the presumption of dedication, p. 506.</p> <p>Same. — Dedication.—Evidence.—The use of land for a highway for such a length of time that public accommodations and private rights might be materially affected by an interruption of the enjoyment would be evidence that the landowner intended to dedicate to the public, p. 506.</p> <p>Instructions. — Must he Considered as a Whole. — Appeal.—Instructions must be considered as a whole and not in detached portions; and if when so considered they state the law correctly the cause will not be reversed on appeal even if some of the instructions considered alone may seem incorrect, p. 506.</p> <p>Appeal and Error. — Record.—Rules of Court. — The party asserting that a certain statement made by the court to the jury was improper and erroneous must cite the page and line of the record containing the statement, pp. 507, 508.</p> <p>Appeal and Error.- — Misconduct of Counsel. — How Error Made Available.— Misconduct of counsel can be made available error on appeal only by an objection made at the time and invoking the intervention of the court, and, if the court refuses to interfere, by reserving an exception, p. 508.</p> <p>Practice.' — Limiting Time of Argument to Jury. — Discretion of Court. —Limiting time of argument of counsel to jury is within the sound discretion of the trial court, pp. 508, 509.</p>

<p>Bonds. — Construction of Schoolhouse. — Action on Bond. — Parties.—A bond executed by a contractor to secure the performance of a contract entered into for the construction of á schoolhouse and pay all debts incurred in the prosecution of the work inures to the benefit of one furnishing labor and material in the construction of such building, and such person may maintain an action on the bond for the recovery of money due him for such labor and material without making the school corporation a party, pp. 514, 515.</p> <p>Same. — Construction of Schoolhouse. — Change of Plans. — Liability of Sureties. — The sureties on a bond given to secure the performance of a contract entered into for the construction of a school building are not released from liability thereon to material men who furnished material used in the construction of such building by reason of the fact that the plans and specifications were departed from and a more expensive building constructed without the knowledge or consent of the sureties, where the contract, made a part of the bond, provided that changes could he made in the plans and specifications. pp. 515, 516.</p>

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

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

<p>Life Insurance.— Insurable Interest. — Contract. — Complaint. — Where au insurance company contracts with the person whose life is insured to pay the sum insured to another person, it is not necessary for such other person, in an action brought by him upon the policy, to show that he had an insurable interest in the life of the insured, p. 527.</p> <p>Same. — Insurable Interest. — A person has an insurable interest in his own life, and may cause a policy of insurance to be issued thereon, and appoint any ■ one to receive the money in case of his death during the existence of the policy, p. 527.</p> <p>Same.— Insurable Interest.- — A policy of insurance issued to one person upon the life of another, the former having no insurable interest, is void as against public policy, pp. 527, 528.</p> <p>Same. — Insurable Interest. — -Complaint.—A complaint on an insurance policy by the mother upon the life of her son, which shows that the mother was the contracting party, is bad as against a demurrer, where it is not shown that the mother had an insurable interest in the life of the son. pp. 529, 530.</p> <p>Same. — Contract.—Insurable Interest. — Complaint.—Plaintiff in an action on a life insurance policy cannot be permitted to claim that the complaint declares upon a policy issued to her, and also that it declares upon a policy issued to the person whose life was insured. pp. 530, 531.</p>

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

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

<p>Municipal Corporation. — -Whew IAablefor Damages from Surface Water. — An action will lie against a municipal corporation for collecting surface water and pouring it upon the land of another to his damage, p. 539.</p> <p>Judicial Notice. — Incorporation of Town. — The Appellate Court will take judicial notice of the incorporation of a town. p. 540. Appeal and Error, — Assignment of Error. — Complaint.—Where the sufficiency of a complaint as a whole is assigned as error, and one' of the two paragraphs thereof is good, the sufficiency of the other paragraph cannot be questioned, p. 540.</p> <p>Municipal Corporation. — When Drain Will be Held to Have Been Constructed By. — Where a ditch is shown to have been constructed under the supervision of a town marshal, and the work was accepted and paid for by the town, the construction of such ditch will be held to have been done under the authority of the town. pp. 540, 541.</p>

<p>Contracts. — Delivery.—Complaint.—Where it is alleged in a complaint on a contract that it was executed in duplicate, by two parties, it will be presumed, in the absence of any showing to the contrary, that each of them retained a copy; and it is not necessary to allege delivery, pp. 543-545.</p> <p>Evidence. — Weight.—Appeal and Error. — The Appellate Court will not reverse a judgment on the weight of the evidence, where there is evidence sustaining the judgment, pp. 545, 546.</p>

<p>Trespass. — Affidavit and Information. — Description of the Land.— In a prosecution, under section 1941, Horner’s R. S. 1897, for entering upon the lands of another after being forbidden to do so, the affidavit and information need not describe the land more particularly than by designating it as the land of the person named other than the defendant, p. 5J/.7.</p> <p>Same. — Affidavit and Information. — Sufficiency.—An affidavit and information charging that the defendant being about to enter unlawfully upon the lands of C., and being then and there forbidden to do so, did thereafter enter upon the land of C., does not sufficiently charge that the defendant entered upon4he lands the-entry of which was forbidden, p. 5Jfl.</p>

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

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

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

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

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

<p>Judgments. — Setting Aside Default. — Excuse.—One seeking relief from a judgment by default, under section 339, Burns’ R. S. 1894, must not only show that he has a meritorious defense, but must show a sufficient excuse under the statute for suffering the default. pp. 597, 598.</p> <p>Same.— Setting Aside Default. — Excuse—A. statement made to defendant’s attorney by the deputy clerk that his case was set for trial on a certain day of the term, and that no advantage could be taken of defendant before such time, is not a sufficient excuse, under section 339, Burns’ R. S. 1894, to justify the court in setting aside a judgment entered by default before the day set for trial, where there had been no appearance and no issues made in the cause. pp. 59S, 599.</p>

<p>From the Madison Circuit Court. Transferred to Supreme Court.</p>

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

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

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

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

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

<p>From the Boone Circuit Court. Transferred to Supreme Court.</p>

<p>Decedents’ Estates. — Advancements.—Interest.—A son upon receipt of §500 advanced to him by his father signed a statement acknowledging the receipt thereof in full of all claims as heir of his father, and agreeing to pay interest on the sum advanced at the rate of six per cent, from date. No interestwas paid during the lifetime of the father. Held, that at the death of the father his estate could recover interest on the sum so advanced at the rate of six per cent, per annum from the date of the instrument until the date of the father’s death.</p>

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

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

<p>Highways. — User.—Railroads.—A highway may be acquired by user over lands appropriated and used as a railroad right of way. pp. 665, 666.</p> <p>Same. — User.—The uninterrupted use of a road by the public contin- • uously for twenty years constitutes it a public highway, p. 666.</p>

<p>■Bonds. — Principal and Surety. — Guaranty.—Default. —Notice.—Contracts. — Breach Of. —Damages.-—A person who signs a bond to secure the performance of a contract entered into by the principal with a town to light its streets is a surety, and not a guarantor, and upon the failure of the principal to comply with such contract both principal and surety become liable for the damages occasioned by such failure, and no notice was necessary, pp. 672. 67S.</p> <p>Same. — Principal and Surety. — Action on Bond. — Defense.—An answer by a surety on a bond given to secure the performance of a contract that the principal informed him that he had been released from the contract, and that if he had known that the principal was held to the performance of the contract he would have performed same, is no defense to an action on the bond for damages on account of failure to perform the contract, pp. 67S, 674-Same. — Principal and Surety. — Action on Bond. — Defense.—In an action on a bond given to secure the performance of a contract to light the streets of a town with electricity at $50 per light per annum, an answer by a surety thereon alleging that after the abandonment of the contract by the principal a bid was submitted to light the streets at $57 per light, but the bidder was informed that bids for over $50 per light would not be considered, and the bid was temporarily withdrawn for the purpose of making some changes therein, and within three days the town accepted a bid for $63 a light, presents no defense, p. 674-</p> <p>Same. — Contracts. — Abandonment.—Action on Bond. — Upon the abandonment of a contract to light the streets of a town suit may be brought on the bond to secure the performance thereof without entering into another contract, pp. 674, 675.</p>

<p>Railroads. — Unloading Freight. — Personal Injuries. • — Contributory Negligence.— Plaintiff for the purpose of unloading goods from a oar backed his wagon up against the oar in such manner that any movement of the car was liable to upset the wagon. The car was coupled to a freight train which was out in two, and the engine was engaged in switching, the time when the train would couple up being uncertain, all of which was known to plaintiff. The station agent had pointed out the car containing the goods and told him he would have time to unload them. After he had unloaded the goods and got in his wagon, the car in being coupled up was moved, and some part thereof caught the wagon and upset it, injuring plaintiff. Held, that the action of plaintiff in placing his wagon in such close contact with the car, in the absence of any statement showing the necessity therefor, was negligence which proximately contributed to his injury, and precluded a recovery, pp. 676-680,</p> <p>Special Verdict. — Interrogatories to Jury. — Answers to interrogatories in a special verdict in an action for damages on account of personal injuries to the effect that plaintiff’s injuries were received without any fault or negligence on his part contributing thereto, and that such injuries were caused by the negligence of defendant, are improper, and should be disregarded, p. 678.</p> <p>New Trial. — Time of Application. — Special Judge. — Where the verdict was not returned on the last day of the term, no error was committed in refusing permission to file a motion for a new trial on the first day of the succeeding term on the ground that the case was tried by a special judge, where the record does not show that the regular judge was disqualified to sit in the case, as the motion could have been filed with the regular judge, and passed upon at a subsequent term by the special judge, p. 680.</p> <p>Venire De Novo. — When Granted. — A venire de novo will not be awarded unless the verdict is so defective and uncertain that no judgment can be rendered upon it. pp. 680, 681.</p>

<p>Master and Servant. — Promise to Repair. — Assumption of Risk.— Where a servant, by reason of the promise of the master to repair a defect in appliances with which he was at work as soon as the job upon which he was then engaged was completed, continued in the service and was injured, during the time required to complete such work, he should be regarded as relieved from the assumption of the risk. This' holding being in conflict with Standard Oil Co. v. Helmiek, 148 Ind. 457, the cause is transferred to the Supreme Court.</p>

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

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

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