Volume 22 — Indiana Appellate Court Reports

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

<p>Municipal Corporations. — Defective Sidewalls. — Subsequent Repairs by Abutting Property Owner. — Evidence. —In an action against a city for personal injuries sustained by plaintiff by reason of a defective sidewalk, evidence that the defect was repaired by an abutting property owner after plaintiff was injured is admissible, pp. 12,13.</p> <p>Evidence. — Repair of Defective Foundation Wall Adjoining Sidewalk. — Opinion.—In an action for damages sustained by plaintiff in falling through a hole in a sidewalk and the cellar wall of an abutting property owner, testimony that witnesses knew of the defective condition of the sidewalk and of the cellar wall at the time of the alleged injury; that they had examined the sidewalk and wall just before the trial; and that the condition of the wall showed where and how the work of filling the hole therein had been done, is not inadmissible as a matter of opinion, p. 13.</p> <p>Negligence. — Parents Negligence Not Imputable to Child. — The negligence of the parent is not imputable to the child in an action by the child for damages on account of an injury caused by defendant’s negligence, pp. llh 15.</p>

<p>Municipal Corporations. — Nuisance.—Complaint.—A cause of action is stated by a complaint alleging that a city deposited large quantities of decomposing vegetable matter near plaintiff's residence, thereby creating a nuisance by which offensive and noxious vapors and odors were generated and emitted, causing plaintiff’s children to become sick and diseased, and rendering her premises valueless and unfit for a place of residence, pp. 16-18.</p> <p>Municipal Corporations. — Nuisance.— Special Verdict.— In an action against a city for maintaining a nuisance near plaintiff’s residence, the plaintiff bases her right of recovery upon damages resulting from the sickness of her children, money expended by her for medical attention for her children, and for damages to her property. A special verdict found that the sickness of plaintiff’s children was not caused by the nuisance of which she complained; that the market value of the property was not decreased, as the nuisance had been abated before the trial of the case; that the rental value of the premises was decreased from twenty-five to fifty per cent.; and that the jury did not know what the rental value of the property was before or during the existence of the nuisance. Held, that a judgment for plaintiff was not upheld by the special verdict.</p> <p> pp. 18-21. </p>

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

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

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

<p>Appeal and Error. — Special Findings. — "Where the special finding of facts and conclusions of law are not signed by the trial judge, nor brought into the record by a bill of exceptions, the special finding of facts will be regarded as a general finding on appeal, p. 44-</p> <p>Same. — Evidence.—No question 4s presented upon the sufficiency of the evidence to sustain the special findings, where the evidence is not in the record, p. 45.</p> <p>Bills and Notes. — Delivery of Note by Agent in Violation of Makers’ Instructions. — Innocent Purchaser. — Estoppel.—The maker of a note governed by the law merchant placed such note in .the hands of her husband, as her agent, to be delivered by him upon certain conditions. The husband in violation of instructions given delivered the note unconditionally. Held, in an action on the note by an innocent purchaser, for value, before maturity, that the maker was estopped from denying the execution of the note. pp. 45-47-</p>

<p>Erom tlie Benton Circuit Court.</p>

<p>Officers. — Salaries.—Township Assessors. — Power of County Commissioners to Fix Salary.■ — The board of commissioners has the power to fix the salary of a township assessor in a township containing a population of more than 25,000 and less than 75,000 for a period of one year at a time, under the provision of section 8084 Burns 1894, and the salary allowed such officer for the first year of his term will not control the board in fixing his salary for the subsequent years of his term of office, pp. 62-65.</p> <p>Same. — Salaries.—Accepting Less Than Amount Due. — An officer who accepts and receipts for less than the amount of his salary provided by law may recover the remainder not so received, p. 63.</p> <p>Same. — Salaries.—May he Increased or Diminished. — The salary of a public officer may be increased or diminished at any time by the law making power, unless otherwise provided by the Constitution, but such change cannot operate retrospectively, pp. 63- 65.</p>

<p>Negligence. — Defective Sidewalk. — Cities.—In an action against a city for damages on account of personal injuries caused by a defective sidewalk, evidence that the defective condition of the walk was of common knowledge, was personally known by the marshal, and had been brought to the knowledge of the common council is sufficient to show negligence on the part of the city. pp. 08, 69.</p> <p>Same. — Contributory Negligence. — Personal Injuries. — Evidence that plaintiff was walking slowly and carefully along a sidewalk containing loose boards, looking for holes, and that the walk appeared smooth at the place of the accident is sufficient to show that she was proceeding cautiously, pp. 69, 70.</p> <p>Same. — Knowledge of Danger. — Sidewalk.—Knowledge that a sidewalk is dangerous does not make it negligence to use it cautiously, but makes it incumbent upon the traveler to use caution proportionate to the known danger, p. 70.</p> <p>Same. — Knowledge of Danger. — Contributory Negligence. — WhenQuestion Of Fact. — In an action for an injury sustained by plaintiff while walking on a sidewalk known by her to be dangerous, the question as to plaintiff’s negligence in attempting to use the sidewalk under such circumstances was properly submitted to the jury. p. 70.</p> <p>Instructions. — Negligence.—Personal Injury. — Knowledge of Danger. — An instruction, in an action for a personal injury resulting from a defective sidewalk, to the effect that if plaintiff knew of the defects thereof she might use the walk provided she did so with care and caution rendered reasonably necessary by her knowledge of such defects is equivalent to informing the jury that plaintiff was required to exercise care proportionate to the known danger, and does not leave her conduct to conjecture, pp. 71, 72.</p> <p>Same. — Evidence.—Weight.—Witnesses.—Credibility.—Impeachment. —An instruction that in determining the weight to be given plaintiff’s testimony, the jury should consider the evidence relative to her testimony on the former trial, and if they found contradictions in her testimony given in the two trials it was their province to determine on which occasion she was telling the truth, is not erroneous as assuming that there had been no impeachment of plaintiff as a witness, or invading the province of the jury in assuming that her testimony was entitled to full weight and credit, regardless of any contradicting statements, p. 72.</p> <p>Instructions. — Impeachment of Witness. — It is not proper for the court in instructing the jury as to the weight to be given the testimony of a witness to inform them that the witness had been impeached. p. 72.</p> <p>Same. — Credibility of Witness. — It is not error to instruct the jury that the credibility of a witness may be determined from his testimony at the pending trial and at a former trial of the same cause. pp. 72, 73.</p> <p>Damages. — Personal Injury. — Negligence.—Evidence.—To warrant a recovery in an action for a personal injury caused by the alleged negligence of the defendant, it is necessary for plaintiff to prove by a fair preponderance of the evidence the negligence of the defendant, his injury, and his freedom from negligence contributing to the injury, p. 73.</p> <p>Instructions. — When Erroneous. — An instruction which assumes a material fact not supported by the evidence is erroneous, p. 75.</p> <p>Appeal and Error. — Waiver.—-Assignments of error not discussed are waived, p. 75.</p>

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

<p>Verdict. — Presumptions.—A general verdict is presumed to have been rendered upon the substantial merits of all controverted matters, and every reasonable presumption will be indulged in its favor, p. 8%.</p> <p>S^me. — Interrogatories. — Answers in Conflict with General Verdict.— Answers to interrogatories will not overthrow and control the general verdict on account of being in conflict therewith, where such interrogatories are contradictory, and in conflict with each other. p. S2.</p>

<p>Erom the Marshall Oirctiit Court.</p>

<p>Evidence. — Sales.—Acceptance.—The written, acceptance of an offer of sale cannot be varied or contradicted by proof of prior or contemporaneous oral negotiations, where there is no claim of fraud or mistake, pp. 88, 89.</p> <p>'Sales. — Executory Contract.— The written acceptance' by the buyer of a proposal by the seller to furnish a heater, free on board cars, at a certain price, in the words ‘ ‘ accepted with the understanding that the heater is your property until accepted and paid for,” amounts to an executory contract, and the buyer may refuse to accept the heater after such delivery, pp. 88-91.</p> <p>Practice. — Pleading.—Joint Demurrer. — It is not error to overrule a demurrer addressed jointly to two paragraphs of answer unless both paragraphs are bad. p. 91.</p> <p>Appeal and Error. — Assignment of Error. — Where the court -overruled a joint demurrer to two paragraphs of answer, separate assignments assailing the rulings upon each paragraph present no question for review, pp. 91, 92.</p> <p>Appeal and Error. — Presumptions in Favor of Trial Court. — Where a new trial was granted on account of the insufficiency of the evidence, the Appellate Court will presume in favor of the action of the trial court, where the evidence on which the verdict was rendered is not in the record. p. 92.</p> <p>Same. — Interrogatories.-—Available error cannot be predicated upon the action of the court in permitting improper interrogatories to go to the jury. p. 92.</p>

<p>Township Trustee. — Report. — Approval. —The approval by the board of county commissioners of a report made by a township trustee that the revenues were not sufficient to pay the indebtedness of the township, and that he paid same with his own money, does not amount to an adjudication of the validity of the claims, and such approval will not prevent the township, in a suit against it for the payment of such claims, from requiring plaintiff to itemize the claims so paid. pp. 9S-9S.</p> <p>Practice. — Order to Make Complaint More Specific. — Refusal to Comply With Order. — Judgment.—A judgment,upon refusal of plaintiff to comply with an order of court requiring him to make his com-. plaint more definite and certain, that he take nothing by his complaint is improper, under the provisions of section 336 Burns 1894, that, for disobedience by a plaintiff of an order concerning pleadings in an action, the court may dismiss the action without prejudice, and such judgment will be treated, on appeal, as a judgment of dismissal, p. 96.</p>

<p>Appeal and Eeeor. — Rules of Court. — Dismissal.—An appeal will be dismissed for failure to comply with Appellate Court rules twenty-five and thirty requiring appellant to refer to pages and lines of the record in discussing the evidence, and to place marginal notes on the transcript indicating the several parts of the pleadings, exhibits, orders of court, bills of exception, etc.</p>

<p>Administrators. — Appointment.—Decedents’ Estates. — Courts have a wide discretion in matters concerning the appointment of administrators, and the refusal of a court to appoint the son of deceased as co-administrator with the widow will not be reviewed on appeal where an abuse of discretion is not shown.</p>

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

<p>New Tbial. — Joint Motion. — A joint motion for a new trial is properly overruled as to all the parties joining therein, if either party is not entitled to a new trial, p. 105.</p> <p>Appeal and Ebbob. — Joint Assignment of Error. — A joint assignment of error must he good as to all of the appellants, p. 105.</p>

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

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

<p>Verdict. — Sufficiency.—Bills and Notes. — A verdict for plaintiff in an action on a promissory note for a certain amount, “less credits on back of note," is not so defective that a judgment cannot be rendered thereon, jp. 116.</p> <p>Same. — Sufficiency.—Amount.—A verdict which requires only a computation by the court to fix the exact amount thereof so that the amount of recovery may be expressed in a single sum is sufficiently certain within the meaning of the provision of section 557 Burns 1894, that in actions for the recovery of money the jury must assess the amount of recovery, p. 117.</p> <p>Appeal and Error. — Briefs.—Buies of Court. — In discussing rulings of the court on the admission of evidence, the places in the record where such rulings may be found must be pointed out. p. 118.</p> <p>New Trial. — Joint Motion. — A joint motion for a new trial must be good as to all of the parties who join therein, or it will not be good as to any of them. p. 118.</p> <p>Appeal and Error. — Joint Assignment of Error. — A joint assignment of error which is not good as to some who join therein cannot be good as to others or as to all. p. 118.</p> <p>Practice.- — Burden of Proof. — Bills and Notes. — Where in an action on a promissory note the execution of the note is denie4 un4er oath, the burden of proving its execution is upon the plaintiff throughout the trial, p. 119.</p> <p>Same. — Evidence.—Order of Admission. — Discretion of Court. — The trial court has a very wide discretion as to the order of introduction of evidence, and to warrant a reversal for admission of evidence out of its proper order there must appear to have been an abuse of discretion tending to defeat the ends of justice, pp. 119, 120.</p> <p>Same. — Evidence.—Order of Admission. — Where, in-an action on a promissory note, plaintiff proved by a witness who was acting as agent of the payee in procuring the note, that he had seen each one of the defendants sign the note, and defendants introduced evidence tending to show that some of the signatures were not in the handwriting of the persons whose signatures they purported to bp, evidence by an expert who had made comparisons of the signatures that they were the signatures of defendants was properly admitted in rebuttal, pp. 120, 121.</p>

<p>Master and Servant. — Defective Appliances. — The master is chargeable with knowledge of defective appliances furnished a servant. p. 124.</p> <p>Same. — Defective Appliances. — Inspection.—The duty of inspecting appliances furnished by the master does not lie equally upon the servant and the master, as the servant has the right to rely upon the master doing his duty in the furnishing of safe appliances, unless the defect is such that an ordinarily prudent person would observe it. p. 124.</p> <p>Same. — Assumption of Risk. — More Hazardous Work. — The implied - assumption by a servant of the risks incident to the particular work he is employed to do does not extend to more hazardous work outside of his contract of hiring, unless he voluntarily goes into such hazardous work. pp. 125,120.</p> <p>Judgment — Complaint.—Variance.—A judgment will not be set aside for the reason that answers to interrogatories show that the general verdict is based upon a different state of facts than those alleged in the complaint, where such answers show in effect the same state of facts as those alleged, pp. 127, 128.</p> <p>Master and Servant. — Defective Appliances. — Trial.—Finding.— An inexperienced person may use a defective tool without experiencing any trouble in its use, and without discovering its defects; and a finding by the jury that plaintiff had used appliances, alleged to be defective, prior to the time of the injury complained of is not inconsistent with the conclusion in the general verdict that he was ignorant of the defect, pp. 128, 129.</p> <p>Master and Servant. — Disregard of Master’s Instructions. — Vice-Principal. — Where one employs another and instructs him personally not to do certain dangerous work, it is the duty of the person so employed to disregard an order of a vice-principal to do such work; and if he disregards the instructions of the master, and follows the orders of the vice-principal, he does so at his own risk in so far as the master is concerned, pp. 129-181.</p>

<p>Boundaries. — Description.—Deeds.—A description of real estate in a lease: “One tract of land, each twenty (20) feet square of the following real estate in Union township, Howard county, Indiana, to wit: All that part W. £ N. E. £ sec. 24, town 23 north, range 5 east, which lies south and west of Wildcat creek, containing in all thirty-two acres, one of said twenty (20) foot tracts being eight rods south and fifteen east of northwest corner of the above described land” is insufficient, admitting that the word “rods” should be supplied after the word “fifteen ”, as it is manifest that every part of the square tract cannot be eight rods south and fifteen rods east of the northwest corner of the whole tract, and the description fails to state what part of it is so*situated. pp. 133, 131f.</p> <p>Same. — Description.—Deeds.—In the description of real estate in a written instrument the land must be so far described that it may be identified without resort to parol evidence, p. 133.</p> <p>Same. — Description.—Deeds.—In the description of real estate: “All that part W. J N. E. 4 section 24, town 23 north, range 5 east,” etc., the figure “4” after “N. E.” means “ quarter ”, and should be so read. p. 135.</p> <p>Contracts.- — Construction.—Where the language of a contract is indefinite or ambiguous, it is the duty of the court to adopt the construction and practical interpretation which the parties themselves place upon same; but the effect of a contract will not be controlled by an erroneous construction given it by the parties, where its meaning is clear, pp. 136-139.</p>

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

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

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

<p>Contributory Negligence. — Interrogatories.—Verdict.—An answer to an interrogatory in an action for damages on account of the death of plaintiff’s decedent, that the evidence does not show what care decedent was using at the time of the accident, is not necessarily a finding that the evidence does not show that he was exercising any care, and is not inconsistent with a general verdict for plaintiff, jpp. 154, 155.</p> <p>Same.' — Knowledge of Danger. — Streets.— One has the right to presume, and to act on the presumption, unless he has knowledge to the contrary, that a street is in a reasonably safe condition for travel; and the fact that he knows, or has reason to believe, the street to be unsafe will not preclude him from using same, if he uses care proportioned to the known or apprehended danger, p. 156.</p> <p>Instructions. — Defective Streets. — Constructive Notice. — An instruction, in an action for damages resulting from a defective street, as to what constitutes constructive notice, that “a very short time may be sufficient, considering the location of the defect in a street, the character of it, the extent to which the street is used, to what extent the defect or obstruction is permanent and prominent, and such other things as throw light on the question,” is not objectionable as inviting the jury to consider everything they might think proper, where the instruction ended with the sentence: “What the facts are, and the reasonable inferences therefrom, are for you to determine, under all the evidence and circumstances considered in accord with the court’s instructions.” pp. 156, 157.</p> <p>Streets. — Street Railways. — Where a street railway is built in a public highway under a contract with the county commissioners, it is the duty of the railway company to maintain its track so as to preserve the public highway in a reasonably safe condition for public use and travel after the highway became a part of the city, whether there was any ordinance requiring it to he done or not. pp. 157, 158.</p>

<p>Appeal and Error. — Law of Case. — Where by the undisputed evidence a case is made identical with that stated in a complaint in a former appeal held to constitute a cause of action, the former opinion constitutes the law of the case, and must be followed in the subsequent .appeal.</p>

<p>Appeal and Eeeoe. — Assignment of Error. — Assignments of error that the judgment is excessive, that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in giving certain instructions, only embody reasons properly assignable in a motion for a new trial, and present no questions for review-on appeal, p. 168.</p> <p>Same. — Record.—An alleged error in overruling a motion for a new trial will not be reviewed on appeal, where the bill of exceptions showing the alleged error is not made part of the record, p. 168..</p> <p>Appeal and Error. — Record.—Instructions.—Where it is attempted to make the instructions a part of the record without a bill of exceptions, they must be filed in the clerk’s office as a part of the papers in the causa pp. 163, 163.</p> <p>Same. — Court Rules. — Transcript.—Dismissal of Appeal. — •'Where appellant disregards rule thirty of the Appellate Court requiring the transcript to be paged and the lines of each page to be numbered, and marginal notes to be placed on the transcript indicating the several parts thereof, the cause will be dismissed, p. 16S,</p>

<p>Railboads. — Injury at Crossing.- — Contributory Negligence. — When Question for Jury. — Plaintiff traveling along the street in a funeral procession was thrown from the seat of the carriage in which she was riding by a sudden movement of the carriage, caused by an approaching train, and was injured. There was a space of about 100 feet where the track could be seen in the direction of the approaching train, but upon reaching a point within 100 feet of the track the view thereof was cut off by box cars and other obstructions. As the procession approached the crossing the funeral director descended from the hearse and walked ahead of the hearse across the track, and the flagman beckoned for the procession to move forward. Plaintiff and her husband both looked toward the track, but did not “ see or hear anything” until so near the track that they could not turn back on account of the carriages following. Held, that the question as to plaintiff’s contributory negligence was for the determination of the jury. pp. 164-17$.</p> <p>Appeal and Ebbor. — Examination of Witness. — Objection.—Only such objections to questions asked in the examination of a witness as were presented to the trial court can be urged on appeal, pp. 17$, 173.</p> <p>Evidence. — Declarations as to Suffering. — Personal Injuries. — Plaintiff in an action for damages on account of personal injuries may show in evidence declarations made as to existing pain and suffering, pp. 17$-174.</p>

<p>Erom tlie Wells Circuit Court.</p>

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

<p>Appeal and Error. — Evidence.—A judgment will not be reversed on appeal, where there is some evidence supporting it. p. 187. Evidence. — Waiver.—A party waives his right to object to the admission of evidence by himself introducing the same kind of evidence in chief, p. 187.</p>

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

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

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

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

<p>Contracts. — Executory.—Breach.—Conversion.—Where in an executory contract for the sale of timber the seller refuses to assist in measuring and grading the timber, as provided by the contract, the buyer’s proper remedy is an action for the breach of the contract; and if instead of pursuing such remedy he takes possession of the property, without the consent of the seller, and contrary to his directions, and sells it to a third person having knowledge of the facts, the original buyer and such third person will be liable to the original seller as for conversion, pp. SIS, SIS.</p> <p>Judgment. — Remittitur.—Practice.—Conversion.—Plaintiff sued defendant for the conversion of timber in logs. The jury returned a general verdict in favor of plaintiff for §400, and found by answers to interrogatories that plaintiff sold defendant a quantity of timber, defendant to cut’the timber, and the logs to be measured and graded by both parties before being delivered by plaintiff and accepted by defendant; that a dispute arose as to the measurement and grading of the logs, and defendant took them from the premises after he had been forbidden to do so. The jury found the amount of the timber cut, and the prices defendant was to pay for the various kinds and grades of timber, and that defendant removed 25,942 feet “or more” thereof, but did not know the valúe of the timber taken. The plaintiff at the instance of the court, pending a motion for a new trial, filed a remittitur for §277.17, and judgment was rendered against defendant for §122.83. Held, that the verdict of the jury was contrary to law, and that the action of the court in permitting plaintiff to file a remittitur was unwarranted, and did not cure it of such defect, pp. 213-S20.</p>

<p>Intoxicating Liquors. — Giving Away Liquor on Legal Holiday.— Statutory Construction. — Section 2194 Burns 1894, making it unlawful to sell, barter, or give away, to be drunk as a beverage, any spirituos, vinous, malt or other intoxicating liquor, upon any legal ' holiday, etc., is intended to apply to dealers in liquor, and does not apply to a person, not a dealer, who gave away champagne, as an act of hospitality, at his private office on New Year’s day to persons there assembled.</p>

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

<p>Bills and Notes. — Pleading.—Answer.—Non Fst Factum. — An answer to a complaint in an action on a promissory note, alleging that defendant could not read, and that the payee undertook to read the instrument for him, and read same as if it contained a clause making the payment thereof conditional, but failed to read that it was payable in bank, and provided for the payment of interest from date, is not sufficient as an answer of non est factum, where it was not averred that a disinterested person could not be found to read the instrument for him.</p>

<p>Execution. — Supplementary Proceedings.- — -Executors.—An executor is required to answer in proceedings supplementary to execution, under section 881’ Burns 1894, as to funds in his hands belonging to a legatee who is the judgment debtor, pp. 248, 248.</p> <p>Same. — Supplementary Proceedings. — Executors.—Courts.—An executor is required to answer as to funds in his hands belonging to a legatee in proceedings supplementary to an execution issued from the court of another county, pp. 248-250.</p> <p>Same. — Supplementary Proceedings. — Complaint.—Decedents’ Estates. —A complaint in a supplementary proceeding, to reach a legacy of the judgment debtor in the hands of an executor, is not bad for failing to allege that the estate is solvent and that a year had elapsed since the issuance of letters testamentary, pp. 250, 251.</p>

<p>Mortoaces. — Promise to Pay. — Words and Phrases. — A promise to pay contained in a mortgage, in the words “and the mortgagor expressly agree to pay the sum of money above secured,” makes both parties who have signed it promisors, p. 254.</p> <p>Principal and Surety. — Mortgages.—Husband and Wife. — Decedents’ Estates. — Claims.—In an action on a claim against a decedent’s estate, based upon a mortgage executed by decedent and his wife, it is immaterial whether deceased executed the mortgage as principal, or only as surety for his wife. pp. 254, 255.</p> <p>Decedents’ Estates. — Claims.—Joint Mortgage. — Parties.—Where a husband and wife executed a mortgage jointly, the death of the husband made the claim several for the purpose of enforcing it against his estate upon the express promise to pay contained in the mortgage, pp. 255, 256.</p> <p>Same. — Claims.—Evidence.—Principal and Agent. — Section 508 Burns 1894, providing that no person who shall have acted as an agent in ■ making a contract with any person who may have died shall be a competent witness in any suit involving such contract, etc., is intended to prevent an agent of a person still living from testifying in behalf of his principal against the estate of the other party to the contract, p. 257.</p> <p>Evidence. — Contracts.—Bills and Notes. — Execution of Note. — Decedents’ Estates. — No error was committed in permitting a witness to testify that a person other than the one who signed the note did in fact execute it and receive the consideration therefor, p. 258.</p> <p>Same. — Decedents’ Estates. — Mortgages.—Husband and Wife. — In the trial of an action on a claim against a decedent’s estate, based upon a mortgage executed by decedent and his wife, the testimony of a witness that decedent naid the interest thereon was properly admitted, where the question of the capacity in which the wife signed the' mortgage was in issue, p. 258.</p> <p>Witnesses. — Children.—The'provision of section 505 Burns 1894, that children under ten years of age shall be incompetent as witnesses, unless it appears that they understand the nature and obligation of an oath, refers to the age of the child when offered as a witness, not the age at the date of the transaction, pp. 258, 259.</p> <p>Decedents’ Estates. — Claims.— Attorney’s Fees.— Attorney’s fees may be recovered on a claim against a decedent’s estate based upon a promise to pay contained in the mortgage signed by decedent and wife given to secure a note signed by the wife, providing for attorney’s fees. p. 259.</p> <p>Decedents’ Estates. — Claims.—Evidence.—Where, in the trial of an action on a claim against a decedent’s estate, plaintiff introduced evidence to show that deceased had made statements during his life tending to show that he acknowledged the debt in suit as his own, an offer by defendant to prove that at about the same time decedent made other statements directly to the contrary was properly excluded as self-serving, p. 259.</p> <p>Same. — Claims.—Evidence.—Husband and Wife. — In the trial of an action against a decedent’s estate, based upon a mortgage executed by decedent and his wife to secure the payment of a.n'ote signed by the wife, an offer to prove that the mortgaged premises were sufficient to pay the debt, and that the wife was solvent, was properly rejected, where the question of suretyship was not in issue, pp. 259, 260.</p>

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

<p>Husband and Wife. — Tenants by Entireties. — Mechanic’s Jjien. — Section 6968 Burns 1894, providing that “ Whenever repairs or improvements are made on real property of the wife by order of the husband with her consent thereto, in writing, delivered to the contractor or the person performing the labor or'f urnishing the material, she alone shall be personally liable for the labor performed or the material furnished, ” has no application where the lands are owned by husband and wife as tenants by the entireties, p. 275</p> <p>Pleading. — Conclusion.—Husband and Wife. — An answer to a complaint to foreclose a mechanic’s lien on lands held by husband and wife as tenants by the entireties, alleging that the property was purchased with the wife’s separate means, and that the husband by intimidations and threats procured the title thereto to be made in himself and wife, over her objections, is not the statement of substantive facts, but is a mere conclusion, pp. 275, 276.</p> <p>Appeal and Error. — Harmless Error.- — -Waiver.—A party will not be heard to complain of the action of the court in sustaining a demurrer to an answer, where after sustaining the demurrer additional paragraphs of complaint were filed, to which defendant did not tender any issue by affirmative answer, but went to trial upon the general issue made by an answer in denial, and the special findings were based upon the additional paragraphs of complaint, pp. 276, 277.</p> <p>Mechanic’s Lien. — Husband and Wife. — Tenants by Entireties.— Contract for Improvements Made by Husband. — Where the husband, over the objections of the wife, contracts for a dwelling to be placed on lands owned by them as tenants by entireties, and the wife stands by and sees the work being done, boards the carpenters, moves into the house, and attempts to borrow money after the death of her husband to discharge the liens thereon, such action of the wife amounts to an acceptance of the building, and the parties furnishing labor and material in the construction thereof may acquire and enforce a lien against such property, pp. 277-279.</p>

<p>Appellate Court. — Jurisdiction.—Cause Originating Before Justice of the Peace. — Highways.—Commutation Money. — Neither the Supreme nor Appellate Court has jurisdiction oí an appeal from a judgment for $2.50 in an action originating before a justice of the peace for commutation money for two days’ work under call of supervisor of road district, brought under the provisions of section 6825 Burns 1894.</p>

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

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

<p>Erom tlie Henry Circuit Court.</p>

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

<p>Instructions. — Attachment.—Fraud.—An instruction in the trial of' a proceeding in attachment that if the jury found that defendant when in failing circumstances had preferred one creditor over another, by conveying to him property by deed or mortgage such fact of itself would not justify the issuing of a writ of attachment, is not erroneous, pp. 306, 307.</p> <p>Same. — Attachment.—Fraud.—An instruction in the trial of an action in attachment that, if defendant left the State on a certain day, went to a foreign state and returned to this State on a certain day and did not make any public announcement as to where he waa going, or when he would return, that these facts standing alone would not sustain the charge of fraud, is not an invasion of the province of the jury. pp. 307, 308.</p>

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

<p>Guaranty. — Notice of Acceptance. — Complaint.—A complaint in an action to enforce a guaranty bond need not aver notice of acceptance, where the guaranty was by its form absolute and continuous. p. S15.</p> <p>Same. — Evidence.—Statement of Account. — In an action on a bond given to secure the payment of an account for certain merchandise furnished a salesman, a statement of the account showing the particular items of merchandise furnished, admitted in evidence, was sufficient to connect the account with the undertaking, pp. S15, SIS.</p> <p>Account.' — Credits.—Guaranty.—Defendant executed a bond to secure payment for certain goods to be furnished a salesman. The salesman obtained credit to'an amount in excess of the amount of the bond, and the defendant executed a new bond similar to the first, for a larger amount. The payments made after the execution of the second bond exceeded the amount of the price of goods received, and the defendant contended that by reason thereof no liability existed on the second bond. Held, that the payments, in the absence of any directions to the contrary, should be applied to the debits in the order in which they occurred, and that defendant was liable on the second bond. pp. SIS, S17.</p>

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

<p>Bonds. — Construction of Schoolhouse. — Action on Bond. — Parties.— Principal and Surety. — A bond executed by a contractor to secure ' the performance of a contract entered into to build a schoolhouse and pay all debts incurred, 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. 329, 330.</p> <p>Bonds. — Construction of Sclioolhouse. — Change of Contract. — Release of Surety. — A surety on a bond given to secure the performance of a building contract will not be relieved from liability by a change made in the contract without’ the consent of the surety, where the contract provided for certain changes, and such change was made conformably therewith, pp. 330, 331.</p> <p>Attorney’s Fees. — Conditional Provision. — Contracts.—The provision of section 7532 Burns 1894, that agreements to pay attorney’s fees depending upon any condition set forth in a bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness are illegal and void, is not applicable to a clause in a contract providing that the contractor shall be liable for attorney’s fees for any failure in the performance of the contract, p. 331.</p>

<p>Insurance. — Issuance of Policy. — Mistake.—Correction.—Reformation. — Complaint.—An error in an insurance policy may be corrected by agreement of the parties in interest, and a complaint declaring upon a policy in favor of a person other than plaintiff is not bad where it is alleged that by the mistake of the agent who wrote the policy the name of the owner of the property was omitted, and the name of her husband was inserted instead thereof, and that the mistake was corrected by the agent by an indorsement on the policy making same payable to the proper person, pp. 333-336.</p> <p>Pleading. — Complaint.—Relief.—A complaint is not bad for the reason that it asks more than is necessary to proper relief, p. 335.</p> <p>Deed. — Record.—Delivery.—Presumption.—Where a deed is recorded by the grantor, its delivery will be presumed; but such presumption is not conclusive, and may be overthrown, pp. 336, 337.</p> <p>Insurance. — Correction of Policy. — Special Verdict. — Where a complaint in an action on an insurance policy alleged that by the mistake of the agent who wrote the policy the name of the owner of the property was omitted and the name of her husband was inserted instead thereof, and that thereafter the error was corrected by the agent, hy authority of the company, a special verdict which fails to find that the correction was made by the authority of the company, or acquiesced in by the company, will not support a judgment for plaintiff on the policy, pp. 337-339.</p> <p>Special Verdict. — Conflict.—An irreconcilable conflict in the findings in a special verdict, on a'particular point in issue, results in no finding upon such issue, p. 338.</p> <p>Same. — Judgment.—Exception.—Bill of Exceptions. — Appeal and Error. — An exception to the action of the court in overruling a motion for judgment on a special verdict may be presented on appeal without a bill of exceptions, p. 339.</p>

<p>Erom the Eloyd Circuit Court.</p>

<p>Pleading. — Complaint.—Breach of Contract. — Damages.—A complaint for damages for breach of a contract which alleges that defendant entered into a contract to purchase certain vegetables raised by plaintiff, that plaintiff delivered the vegetables in accordance with the terms of the contract, and that defendant refused to accept and receive them is sufficient as against a demurrer, under section 373 Burns 1894. pp. 345, 346.</p> <p>Same. — Complaint.—Breach of Contract —Damages.—In an action for damages on account of the failure of defendant to receive and accept certain articles purchased by him of plaintiff, it is not necessary to allege that the money is due and unpaid, p. 346.</p> <p>Same. — Complaint.—Breach of Contract. — Damages.—A complaint in an action for damages for the breach of a written contract which alleges generally the performance of all of the conditions of the contract on the part of plaintiff, and the breach thereof by defendant, is sufficient, under section 373 Burns 1894, as against a demurrer, p. 346.</p>

<p>Contracts. — Gas and Oil Lease — Landlord and Tenant. — Plaintiff brought suit for acreage rent under an agreement that the party of the first part has “this day granted and leased to the second party, their heirs and assigns ” certain tracts of land, the second party to pay $100 each year for each gas well drilled which produces gas in paying quantities, and until the drilling of a gas well, the second party to pay an annual rental of 50-100 dollars an acre, to be paid on the 1st day of January of each year. The instrument contained the further clause: “This grant and lease shall be deemed to commence at and run from the date of the signing hereof, and shall be deemed to have terminated whenever natural gas ceases to be used generally for manufacturing purposes in Howard county, Indiana, or whenever the second party, their heirs or assigns, shall fail to pay or tender the rental'price herein agreed upon, within sixty days of the date of its becoming due, and in the event of the termination hereof for any cause, all rights and liabilities hereunder shall cease and terminate.” Defendants never took possession of the premises. Held, that the agreement ran only from year to year, and that at the end of any year either party could terminate the agreement, the one by refusing to accept, and the other by refusing to pay the stipulated sum.</p>

<p>Contracts. — Bills and Notes. — Suit was brought on a contract whereby defendant assumed and agreed to pay a certain $250 note executed by plaintiff. The contract referred to a bill of sale in which the consideration for the purchase of a stock of goods by defendant from plaintiff is stated as being $1,912, but there was no such statement in the contract. The consideration expressed in the contract sued on was certain notes and rent due, amounting to $1,912, and the note of $250 described in the complaint. Held, that the agreement to pay the $250 note was not without consideration, pp. 354. 360.</p> <p>Instructions. — Bills and Notes. — Action on Contract Assuming Payment of Note. — Where a complaint in an action on a contract in which defendant had assumed the payment of a certain note executed by plaintiff, proceeded upon the theory that plaintiff had paid the note, an instruction to the effect that plaintiff could recover whether he had paid the note or not is erroneous, pp. 360-364.</p> <p>Account. — Action On. — Complaint.—Bill of Particulars. — Exhibit.— A complaint charging that defendant is indebted to plaintiff in a certain sum for goods and merchandise, consisting of a general stock of merchandise, sold in bulk for a certain sum, without inventory or itemized statement of the different articles constituting the stock having been made, and that defendant sold the goods to different persons at retail, and paid the amount promised, except the sum sued for, states'a good cause of action on the quantum meruit for goods sold and delivered, and shows a valid excuse for not filing a bill of particulars as an exhibit, p. 364.</p>

<p>Contracts. — Breach.—Damages.—Plaintiff and defendant entered into a written contract by the terms of which it was agreed that plaintiff should convey to defendant, in trust, certain described real estate to secure a loan, upon the payment of which the property was to be reconveyed. The contract contained a stipulation that the grantee should keep the property insured in such amounts as he might deem proper. After the conveyance, one of the buildings, on which there was no insurance, was destroyed by fire, and plaintiff brought suit on the contract for damages sustained thereby. Held, that by the terms of the contract it was wholly discretionary with the defendant as to the amount of insurance he should place upon the property, and that there was no basis upon which damages could be assessed.</p>

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

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

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

<p>Negligence. — Proximate Cause of Injury. — Contributory Negligence. —Where the driver of a street sprinkler, in attempting to cross a street car track in front of a oar, miscalculated the time it would take him to cross and get out of the way, and was struck by the approaching car, and injured, such action on the part of the driver was the proximate cause of the injury, and he cannot recover therefor, although the negligence of the motorman in control of the car contributed to the injury, pp. 378-380.</p> <p>Street Railways. — Injury at Crossing. — -Rights of Company Superior to that of Vehicles. — The right of a driver of a vehicle to cross a street car track is subject to the superior right of the company as to priority of passage, pp. 381, 383.</p> <p>Negligence. — Contributory Negligence. — Wilfulness.—Where the negligence of plaintiff pfoximately contributed to his injury, lie cannot recover in an action for damages therefor, no matter how-negligent the defendant may have been, unless the negligence of defendant was such as to imply a wilful intention to inflict the injury, p. 3S3.</p>

<p>Bastardy. — Action When Relatrix is a Minor. — Process.—Statute Construed. — The provision of section 256 Horner 1897, that before any process shall be issued in the name of an infant who is sole plaintiff, a competent and responsible person shall consent, in writing, to appear as next friend, is not applicable in a bastardy proceeding, since the relatrix is not sole plaintiff. p. 385.</p> <p>Same. — Practice.—Trial Without Answer on -File. — In an action for bastardy, a trial may be had without answer being filed, p. 386.</p> <p>Same. — Evidence.—Relatrix asWitness —Instructions.—Where,on the trial of one charged with bastardy, evidence tending to show that relatrix had made statem ents out of court contradictory to her sworn testimony, it is proper for the court to instruct the jury that they could only consider such evidence as affecting her credibility as a witness, p. 387.</p> <p>Same. — Evidence.—Instructions.—Where, in the trial of a bastardy proceeding, there was evidence tending to show that, about the time the child was begotten, the defendant had a certain contagious venereal disease, and that relatrix did not have such disease, it is proper for the court to instruct the jury that such facts might be considered by them in arriving at their verdict, p. 388.</p> <p>Same. — Evidence.—In a bastardy proceeding the State may recover, although it was shown, by evidence introduced at the trial, that the defendant, at the time the child was begotten, was affected with a venereal disease, and that the relatrix had not been so affected, p. 388.</p> <p>Practice. — Exclusion of Evidence. — Harmless Error. — Error in excluding an answer to a question propounded to a witness is cured by afterwards admitting the answer to a similar question propounded to the same witness, p. 389.</p> <p>Same. — Misconduct of Counsel. — Where counsel in making opening statement-to the jury is guilty of misconduct, and the opposing party at the time objects, and the court admonishes the jury to disregard the statement, no question can be presented to this court, unless the injured party moves the court to discharge the jury. pp. 389, 390.</p> <p>Same.— Exclusion of Evidence — Impeachment of Witness. — The exclusion of evidence laying the ground for impeachment on an immaterial matter is not error, p. 390.</p> <p>Evidence. — Privileged Communication. — Clergyman. — Confessions and admissions made to clergymen in the course of discipline enjoined by their respective churches are privileged, pp. 390, 391.</p> <p>Practice. — Bastardy.—Defendant’s Statement to Jury. — The statement of counsel to the jury of the facts upon which defendant bases his defense should follow the statement made by counsel for State, and, by the refusal to make a statement at the time, the right to state the defense is waived, pp. 391, 392.</p> <p>Bastardy. — Excessive Judgment. — A judgment for §800 for the support of a bastard child is not so clearly excessive as to warrant a reversal of the cause on appeal, p. 392.</p> <p>Same. — Custody of Child. — In a bastardy proceeding the defendant, who is shown to he the father of the child, is properly refused the custody of the child which is only three months old, although he proposed to give bond to maintain and educate the child under the order of the court, p. 392.</p> <p>Same. — Appeal.—Replevying Judgment. — After judgment has been rendered against the defendant in a bastardy proceeding, and an appe.al bond given, the court may require the defendant to replevy the judgment, pp. 392, 393.</p> <p>Same. — Evidence.—Financial Condition of Defendant’s Father. — For the purpose of determining die amount of the judgment to be assessed against the defendant in a bastardy proceeding, evidence of the financial condition of defendant’s father, with whom defendant lives and works, is admissible, p. 393.</p>

<p>Practice. — Motion to Make Complaint More Specific. — Appeal and Error. — The overruling of a motion to make the complaint more specific is not reversible error, where it is not reasonably probable that the defendant was deprived, to his prejudice, of some material and specific information which he clearly demanded by his motion. pp. 395, 396.</p> <p>Same. — Motions.—How Construed on Appeal. — As against the action of the trial court, motions must, on appeal, be construed most strongly against the proposers thereof, p. 396.</p> <p>Practice. — When General Verdict Controls Answers to Interrogatories. — Where answers to interrogatories propounded to a jury are returned with the general verdict, the verdict must control unless there be answers, which, being uncontradicted by other answers, can not be reconciled with such general verdict, pp. 396, 397.</p> <p>Same.- — Answers to Interrogatories Propounded to Jury. — Motion for Judgment On. — In considering a motion for j udgment on the answers to interrogatories, notwithstanding the general verdict, the court cannot give any effect to items of evidence stated in the answers, p. 399.</p> <p>Railroads. — Fires.—Damages.—Evidence.—On the trial of an action against a railroad company for damages caused by fire ignited by sparks from a passing locomotive, evidence is admissible to show that other fires adjacent to the right of way sprung up after the passing of the particular locomotive, pp. 39G-Jfl0.</p> <p>Railroads. — Fires.—Damages.—Expert Testimony. — On the trial of an action for damages caused by fire ignited by sparks from a passing locomotive, there being evidence to which the hypothetical questions were pertinent, an expert may testify as to the size of sparks which could be seen at a given distance in the daytime, and whether a locomotive, equipped in a certain way, .would emit sparks with such life that they would carry fire a given distance, if it was being operated in weather ordinarily prevailing in the month, of March, and whether a locomotive was properly equipped which would, in going six miles, set out as many different fires at certain points along the right of way. pp. JfOO, Jfi2.</p> <p>Same. — Fires.—Damages.—Proximate Cause. — Where, in an action for damages caused by fire set by a passing locomotive, there is evidence showing that the fire was negligently started in the premises adjacent to plaintiff’s bam, and passed directly or indirectly as a natural consequence, without the intervention of any independent and responsible human agency, to plaintiff’s property, as an ordinarily prudent person would have regarded as reasonably possible under the state of existing wind and weather, the evidence is sufficient to uphold a finding that the escape of the fire from the locomotive was the proximate cause of the burning of plaintiff’s property. p. Jfi5.</p>

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

<p>Complaint. — Action on Appeal Bond. — A complaint in an action on an appeal bond, which does not name the surety as a defendant either in the caption or body of the complaint, and does not aver that the bond was executed, nor connect the surety with the cause of action stated, is insufficient as against the surety, p. 421.</p> <p>Practice. — Action on Appeal Bond. — Statute of Limitations. — An appeal bond is a written contract for the payment of money, and a right of action thereon accrues, against which the statute of limitations begins to run, when the judgment is rendered on appeal; and it is not necessary to attempt the collection of the judgment before suing on the bond. pp. 421, 422.</p> <p>Limitation of Action. — Appeal Bond. — An action on an appeal bond is governed by section 293 Horner 18^7, and must be commenced within ten years, p. 422.</p>

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

<p>Decedents’ Estates. — Claims.—Affidavits.—Complaint.—Where a claim against a decedent’s estate was disallowed and transferred to the issue docket, and an amended complaint filed, the fact that the compliant was not accompanied by affidavit will not render the same bad as against a demurrer for want of sufficient facts. pp. 428, 429.</p> <p>Limitation oe Actions. — Pleading.—Where there are exceptions to a statute of limitations, so that a reply relying upon such an exception can be pleaded to an answer setting up the statute, it is not necessary in the complaint to show that the case is within any of the exceptions, and the complaint will not be held insufficient on demurrer though it show that since the cause of action arose the period of limitation has run, unless it also shows that no exception is applicable, pp. 429-434.</p> <p>Fraud. — Decedents’ Estates. — Complaint.—A complaint against a decedent’s estate alleged that plaintiff became the owner by inheritance from her maternal grandfather of certain real estate ; that decedent, who was plaintiff’s father, induced plaintiff to believe that the interest in the real estate which would have descended to her mother, had she lived, had descended to him; that decedent presented to plaintiff a quitclaim deed for her interest in said lands, and requested her to sign and acknowledge the same, which she did, without reading it or being made acquainted with its contents, relying upon her father as to the contents thereof and the propriety of making the same ; that afterward decedent paid her §105, and informed her that this was all she was entitled to as a consideration for the deed; that after its execution it was sent away for, record and plaintiff had no means of ascertaining that the consideration was different from what her father had stated; that decedent received as a consideration for the deed §600; and that plaintiff was cheated and defrauded of her rights in the premises. Held, that the complaint did not show a cause of action for fraud, pp. 429-433.</p> <p>Fraud. — Pleading.—Decedents’ Estates. — Evidence.—Under the provision of section 2479 Burns 1894, that when any claim against a decedent’s estate is transferred for trial it shall not be necessary for the executor or administrator to plead any matter by way of answer, except set-off or counterclaim, it is not necessary for a claimant in an action against a decedent’s estate to allege in his complaint any matter which ■would constitute a good reply to an answer of the statute of limitations, as the statute of limitations may be given in evidence under the general denial, p. 434.</p>

<p>Appeal and Error. — Motion for New Trial. — The Appellate Court cannot determine whether a proper motion for a new trial was pending in the court below when the appeal was taken, where the motion is not in the record, p. Jb$7.</p> <p>Same. — Verdict.—Interrogatories.—Every reasonable presumption is indulged in favor of the general verdict, and it must stand unless there is an irreconcilable conflict between it and the special answers to interrogatories propounded to the jury. pp. HI H%-</p> <p>Master and Servant. — Negligence. — Verdict. — Interrogatories to Jury. — In an action against a stone company for the death of plaintiff’s intestate, the complaint alleged that deceased was employed to fasten hooks attached to a traveling derrick for the purpose of moving the stone; that three months prior to the accident the defendant had negligently placed a very large stone so that each end rested on two small stones placed on loose, new-made dirt. The large stone fell and killed deceased a few minutes after he had removed a smaller stone which was near to but in no way connected with, the larger one. Answers to interrogatories propounded to the jury stated that the loose new-made dirt caused the stone to fall; that the condition of the ground Where the stone stood was latent, so that a man of ordinary prudence could not have discovered it, and its condition was unknown to decedent. Held, that the special answers are not in irreconcilable conflict with the general verdict in. favor of plaintiff, pp. 487-HI</p>

<p>Banks and Banking.— Deposits. — Payment.—Where a debtor makes a deposit with a creditor bank, with an agreement that it shall be subject to the depositor’s order for a specific purpose, it cannot in violation of such order, be applied by the bank in payment of the depositor’s debt. p. 451.</p> <p>Mechanic’s Lien. — Payment.—Banks and Banking. — A contractor purchased from appellee, a banker, materials used in the construction of appellants’ building, no time being specified when he should pay for the same, except that he should make a payment out of the first money received on the contract. The contractor afterwards deposited with the banker a sum of money, more than sufficient to pay for said material. The banker knew the'money deposited had been received from appellants to apply on the contract price. The deposit was made subject to the contractor’s order. Such sums were paid out on the contractor’s orders, that the balance was insufficient to satisfy the banker’s claim. Held, that the deposit was not a payment, and the banker was entitled to enforce a material man’s lien for the unpaid balance, pp. 445-450.</p> <p>Same. — Agreement to Secure Against Mechanic’s Liens.- — The fact that a contractor agreed to furnish security against mechanic’s liens, and gave bond for the performance of his contract, will not preclude a material man from enforcing his lien, where he was not a party to the contract or bond. pp. 451, 452.</p>

<p>Practice. — Demurrer.—Harmless Error. — The ruling on a demurrer to a paragraph of answer is harmless, where evidence supporting all the allegations .thereof is admissible under the general denial, which is pleaded., p. 458.</p> <p>Appeal and Eeeoe. — Complaint.—Evidence.—Where the finding is against appellant upon every material allegation of his complaint, it will not be disturbed on appeal, if there is any evidence to sustain the judgment, p. 458.</p> <p>Mechanic’s Lien. — Mortgages.—Priority.—A mechanic’s lien relates to the time when the first labor was performed, or first material furnished, and is not superior to the lien of a prior executed and recorded mortgage, p. 458.</p> <p>Moetoaqes. — Unrecorded Assignment. — Priority of Lien. — The priority of a mortgage lien is not affected by a failure to record an assignment thereof until after a junior lien has attached, p. 458.</p>

<p>Parent and Child. — Right of Action. — The right of father or mother to recover damages for the wrongful killing of a child is statutory, and such an action cannot be maintained by a woman, where she is not the mother and has not legally adopted the child, although it was given to her in infancy, and she had ever since maintained and treated it as her own.</p>

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

<p>Verdict. — Special Answers. — Public. Officer. — When the jury, by answer to an interrogatory, find that a public officer at the close of his term, had on hand a specified sum of public money, the answer, tobe consistent with the general verdict, will be construed as meaning the amount he then had, without regard to the amount with which he was chargeable, p. Jfl3.</p> <p>Public Officer. — Action Against. — Demand.—No demand is nec- , essary before suit against a public officer, for failure to turn over to his successor at the expiration of his term, all public money in his hands belonging to the office, p. Ifib.</p>

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

<p>Highways. — Gravel Roads. — Hauling Heavy Loads. — An oil tank resting upon springs and bolsters fastened to the running gears of a wagon is not a part of the wagon within the meaning of section 2047 Burns 1894, making it unlawful to haul upon gravel roads loads exceeding 2,500 pounds in weight, at certain seasons of the year, but is a part of the load. pp. 479-485.</p> <p>Evidence. — Criminal Law —Lntent.—In a prosecution under section 2047 Bums 1894 for hauling a heavy load over a gravel road the intent of the defendant was not of the essence of the offense, and no error was committed in refusing to permit defendant in the trial of such action to testify as to his intentions, pp. 485, 486.</p> <p>Appeal and Error . — Record.—Instructions.—Available error cannot be predicated upon the action of the court in refusing to give instructions tendered, where such instructions were not signed by the complaining party nor his counsel, p. 487.</p>

<p>Judicial Notice. — Cities.—Incorporation.—The Appellate Court will take judicial notice of the incorporation of cities in this State. p. 490.</p> <p>Officers. — Public Officer. — Police. —A police officer of a city in the performance of his duties as a peace officer is not acting as an agent or servant of the municipality, but acts in the capacity of a public officer appointed by the city upon the authority of the legislature. p. 492.</p> <p>Criminal Law. — Common Law Offenses. — Since the enactment of the code of 1852, section 287 Burns 1894, providing that “ crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this State, and not otherwise,” there are no common law offenses in this State; but 'where a statute enacted subsequently to the foregoing section creates a crime by name, without defining it, a prosecution may be maintained, and the courts will define the crime by the aid of common law definitions, p. 492.</p> <p>Officers. — Police.—Failure to Perform Duty. — Indictment.—Criminal Laic. — An indictment charging that defendant, while acting as a policeman in an incorporated city, did then and there unlawfully and unnecessarily delay, and neglect to disperse and arrest a riotous mob, does not charge an offense within the meaning of section 2105 Burns 1894, which provides that any officer under the Constitution or laws of this State, who fails to perform any duty in the manner and within the time provided by law, shall, upon conviction, be fined and imprisoned, pp. 492-494-</p> <p>Criminal Law. — Arrest of Judgment. — A motion in arrest of judgment must be sustained, where a cause was tried and the punishment assessed under a section of the statute which is not applicable. p. J$4-</p> <p>Same. — Arrest.—Failure of Police Officer to Perform Duty. — Indictment. — An indictment charging that defendant while acting as a policeman in an incorporated city failed to arrest and disperse a riotous mob cannot be sustained, under section 2127 Burns 1894, providing that a county clerk, sheriff, coroner, constable, or other ministerial officer who refuses or neglects to perform any duty he is required by law to perform in any criminal case or proceeding shall be punished by fine or imprisonment, pp. 494-496.</p>

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

<p>Negligence.— Proximate Cause. — Fires.—Natural Gas. — Plaintiff sued defendant for damages on account of loss of property by fire. The complaint alleged that by reason of defendant’s failure to supply gas in a safe manner, a stove in its office became overheated and set fire to the building, which was communicated to plaintiff’s property. The special verdict showed that the fire originated in a building leased by the person acting as secretary and treasurer of defendant company, and that the real cause of the fire was the condition of the stove and the dangerous condition of the fire permitted therein by him. Held, that the proximate cause of the damage to plaintiff was not within the scope of the cause of action set forth in the complaint.</p>

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

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

<p>Street Railways. — Grossings,—Negligence.—One is guilty of contributory negligence in attempting to cross a street railway track without first looking and listening, p. 520.</p> <p>Same. — Grossings.—Negligence.-—The fact that the street car company was running its cars at an unlawful rate of speed will not excuse a traveler for his failure to observe an approaching car nor his failure to use ordinary care to avoid injury, p. 520.</p> <p>Negligence. — Street Railways. — -Injury at Grossing. — Where a person driving along a street toward an approaching street car which he could plainly see for a distance of 1,000 feet, attempted to cross the track and was struck by the car before he had traveled a distance of ten feet, and was injured, he was guilty of such negligence as to bar a recovery, although the car was being run . at a rate of speed in violation of a city ordinance, pp. 515-520.</p>

<p>Township Trustee.- — Debts Contracted Contrary to Law. — A township trustee has no power to bind his township by contracting a debt in excess of the fund on hand to which such debt is chargeable, in violation of sections 8081, 8082 Burns 1894; but when the trustee undertakes to bind the township by contracting a debt contrary to the provisions of said statute, and anything for which the trustee has authority to expend money from the special school fund has, under his contract, been received and retained by the school township, there may be a recovery against the township for the benefit so derived by it.</p>

<p>Evidence. — Burden of Proof. — Negative Averments. — Where a complaint in an action against a lessee of land for natural gas purposes alleged that by the terms of the lease the lessee agreed to complete a well within one year, and in default thereof would pay to lessor a certain annual rental, and that lessee failed to put down a well, and no evidence was introduced to show that no well had been put down, a judgment in favor of plaintiff for such rent will be reversed, pp. 526-529.</p> <p>Judgment. — Complaint — Special Findings. — Variance.—A complaint in an action for rent alleged that plaintiffs, husband and wife, were the owners of the real estate. The special, findings showed that the husband alone was the owner. Held, that a judgment in favor of plaintiffs jointly will not be reversed on account of such variance,where no objection or motion to modify the judgment for such reason was made. pp. 539, 530.</p> <p>Complaint. — Gas and Oil Lease. — Action for Rent.— Sufficiency of Complaint. — A complaint for rent due on a gas and oil lease which alleges that plaintiffs were the owners of the leased premises; that they leased it to defendant for gas and oil purposes; that it agreed to drill a well within a certain specified time, and in case such well was not drilled it was to pay a fixed annual rental; that the well was not drilled, and that there was due and unpaid §55, the amount of six months’ rental, states a cause of action, p. 530.</p>

<p>Special Verdict. — Sufficiency.— A judgment for royalties for the use of certain patented devices can not be rendered on a special verdict which finds that the use of the devices was worth a certain sum, but that such sum was not due from the defendant to the plaintiff.</p>

<p>Judgments. — Correction.—Replevin.—A judgment in replevin may be corrected on motion by supplying the alternative portion thereof fixing the value of the property which was omitted by the clerk iu entering same, where the memoranda of the court on the original trial fixed the value of the property, and authorized the entry of judgment in the form as corrected, pp. 536-539.</p> <p>Same. — Correction.—Delay.—The delay of plaintiff for two years in making an application for the correction of a judgment was not ground for denying the same, where the application was made as soon as the omission was discovered, p. 539.</p>

<p>Schools. — Truant Officer. — Compensation.—A truant officer, under the provisions of the act of 1897 (Acts 1897 p. 248), is entitled to compensation at the rate of 82 per day for each day of actual service, and is not limited to the twelve weeks provided in the act for compulsory attendance at school.</p>

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

<p>Criminal Law. — When Prosecution Commenees. — The commencement of a criminal prosecution dates from the issuing of the warrant. pp. 550-553.</p> <p>Same. — When Prosecution Commences. — limitation of Actions.— Section 1750 Burns 1894. requiring the clerk to issue warrants upon all indictments returned within ten days after the close of the term is mandatory, and. when an indictment is returned, and no warrant is issued thereon for more than two years, the prosecution is barred by the statute of limitation, pp. 550-553.</p>

<p>Criminal Law. — Justices of the Peace. — Appeal.—Plea of Guilty — Section 1712 Burns 1894, providing that “Any prisoner against whom any punishment is adjudged may appeal to the criminal court, and, if there is none, then to the circuit court of the county, within ten days after trial,” etc., does not authorize an appeal from a'judgment upon a plea of guilty.</p>

<p>Municipal Corporations. — Opening of Streets. — Street Improvements. — The action of a city council approving the report of city commissioners estimating benefits and damages for opening a street can not have the effect of a judgment, unless such action is in strict conformity with the statute, pp. 558, 559.</p> <p>Municipal Corporations.— Opening Streets. — Void Proceedings. —Where proceedings to open a street are void, no act of any person can render the same valid; but when a party by his conduct has said they were valid, he is then precluded from saying they are void. pp. 559, 560.</p> <p>Same. — Street Improvements. — Void Proceedings. — Estoppel.—Where property owners having notice of a street improvement by publication, according to law, made no objection, and permitted money to be expended which benefited their property, they will be estopped from denying the validity of an assessment therefor, although the action of the council in opening the street was illegal and ^oid. pp. 560, 561.</p> <p>Appeal and Error. — Assignment of Cross-Error. — It is not necessary in the assignment of cross-error to set out the names of the parties to the appeal, pp. 561, 562.</p>

<p>Landlord and Tenant. — Lien—Purchaser of Grain from Tenant Must Take Notice— One purchasing grain of a tenant is bound to take notice of the landlord’s statutory lien for his share of the crop under the lease, p. 564.</p> <p>Same. — Lien.—When Purchaser of Farm Products is Liable to the Landlord for Conversion. — Where a tenant, without the consent of the landlord, sells the crops raised on the leased premises, not retaining enough, in kind, of the various crops to pay the landlord his share of the crops as provided by the lease, and the purchaser . commingles the same with other like products so that its identity is lost, the purchaser is liable for conversion, p. 567.</p> <p>Same. — Authority of Tenant to Sell Crops. — A contract between a landlord and tenant stipulating that the tenant shall deliver the crops raised at designated places does not of itself authorize such tenant to sell the crops, p. 568.</p>

<p>Executors and Administrators. — Misappropriation of Trust Funds. — Action for Recovery Cannot be Maintained Against Estate of Administrator by Administrator De Bonis Non. — An action cannot be maintained against the estate of a deceased administrator by an administrator de bonis non for the misappropriation of funds of such estate; such action must be brought on his official bond under the provisions of section 2458 R. S. 1881.</p>

<p>Frauds, Statute Of. — Contracts.—Sales.—Plaintiff brought suit to recover for certain machinery alleged to have been sold by him to defendants at a price exceeding $50. The complaint was based upon a written proposal executed by defendants to a third person. Held, that the complaint was bad, as the proposal or contract of sale was within the statute of frauds (section 6685. Burns 1894), providing that no contract for the sale of goods for the¡ price of $50 or more shall be valid unless the purchaser shall receive part of such property, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made and" signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized, pp. 678-584.</p> <p>Contracts. — Sales.—Parol Evidence. — Frauds, Statute Of. — A written contract of sale must set forth the terms of the sale with reasonable certainty, and the failure of the writing to do this in any respect cannot be supplied by parol proof, pp. 584-587.</p> <p>Frauds, Statute Of. — Contracts.—Sales.—-Acceptance of Goods.— Complaint, — Averments in a complaint for the purchase price of machinery, that the purchasers inspected the machinery upon its arrival, and said they would accept it if the seller would procure a new axle for the truck, which was done, and defendants th^n assisted in setting up the machinery, and plaintiff turned same over to them in substantial compliance with his contract, but defendants refused to accept the same, do not show such an acceptanee of the property purchased as contemplated by the statute of frauds to take a contract which is void by the statute of frauds out of the statute, pp. 587, 588.</p> <p>Frauds, Statute 0¶. — Contracts.—Sales.—Acceptance.—When the person to whom a written proposal to purchase machinery was made transferred same to a third person and sold him the machinery, such action does not amount to such an acceptance of the proposal as to constitute a valid contract between the parties, pp. 588-592.</p> <p>Contracts. — Sales.—Executory Contracts. — Assignment.—A written proposal to purchase machinery conditioned that the machinery was to be delivered to the purchasers, and warranted, and if it could not be made to fill the warranty it was to be returned, and another machine substituted, is not assignable, p. 592.</p>

<p>Coepobations. — Articles of Incorporation. — Where a corporation organizes under a general act, and inserts in its articles of incorporation regulations and provisions additional to those required by the creative statute, such additional regulations and provisions are void. p. 595.</p> <p>Same. — Creation for a Particular Purpose. — Where a corporation claims the right to exist for a certain purpose, it must show that it was organized under a statute authorizing the creation of a corporation for that particular purpose, p. 595.</p> <p>Same. — Organization for Particular Purpose. — Statute Construed.— Subdivision thirteen of section 3503 Horner 1897, providing for the creation of corporations “for the purpose of buying and selling merchandise and conducting mercantile operations” does not authorize the creation of a corporation to buy and sell bonds; since the. term “merchandise” does not include bonds, p. 596.</p> <p>Same. — Contract by Pretended Corporation Organized Without Authority. — Nul Tiel Corporation. — Where there is no grant of power-existing for the creation of a corporation pretended to be organized, there can be no de facto corporation, and, in a suit by such pretended corporation upon a contract executed by it, the other party to the contract is not estopped to deny the corporate existence at. the time of the contract, pp. 597-599.</p>

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

<p>Contributory Negligence. — Personal Injuries. — Answers to Interrogatories. — When in Conflict mth General Verdict. — Answers to interrogatories in the trial of an action for damages on account of personal injuries sustained by plaintiff by falling into an unguarded ditch while passing along a sidewalk near the ditch after dark, to the effect that plaintiff knew of the location of the ditch and its dangerous condition, and the only precaution she took to avoid falling in the ditoh was “ to feel with her feet, and search with her eyes ” show plaintiff to be guilty of negligence contributing to her injury, and are in irreconcilable conflict with a general verdict for plaintiff.</p>

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

<p>Erom tbe Eandolph Circuit Court-.</p>

<p>Prom the Marion Circuit Court,</p>

<p>Appellate Court . — Jurisdiction.—Suit for Relief From Judgment Taken Before Justice of Peace. — The' Appellate Court has ho jurisdiction of an appeal from a judgment of a circuit court in an original proceeding for relief from a judgment taken before a justice of the peace by default, since such suit is not an incident of the cause in which the judgment was rendered.</p>

<p>Estoppel. — Forgery—Bills and Notes — Principal and Surety. — Where the payee of a promissory note called upon the surety, before the note was due, and while the principal was solvent, to see if he would buy it, and the surety examined the note, and his signature, and made no claim of forgery, but arranged for a subsequent meeting to purchase or take up the note, and the payee by reason thereof delayed bringing suit on the note until after the insolvency and death of the principal, the surety will be estopped from setting up the defense of forgery.</p>

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

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

<p>Bonds. — Construction of Schoolhouses. — An action may be maintained against the sureties on a bond given by a contractor to secure the performance of a contract to construct a school building by one furnishing labor and material in the construction of such building. pp. 654, 655.</p> <p>Same. — Construction of Sehoolhouse. — Condition as to Payment of Claims. — A condition in a contract for the construction qf a school building that there should be no claims against the contractor for work or material in the construction of the building, imposes upon the contractor an obligation to discharge the claims, and his failure to pay and discharge such claims constitutes a breach of the contract for which the sureties on his bond are liable, p. 655.</p> <p>Same. — Action On. — Variance.—The fact that a complaint in an action on a contractor’s bond alleges that the contract and bond were executed on the same date, and the exhibit shows that the bond was executed five days after the execution of the contract, does not amount to a variance, where the undertaking clearly identifies the contract, pp. 655, 656.</p>

<p>Erom the "Warrick Circuit Court.</p>

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

<p>Eminent Domain. — Proceeding to Acquire Easement for Pipe-Line.— Measure of Damages. — In a proceeding, under the act of February-20, 1889, for the appropriation of an easement in lands for the purpose of laying natural gas mains, the measure of damages is the actual value of the land appropriated, and any injury to the residue. pp. 679, 680.</p> <p>Appeal and Error. — Interrogatories to Jury. — A party who at the trial of a .cause did not object to the submission of special interrogatories to the jury, cannot on appeal complain that such interrogatories were not authorized by statute, p. 684-</p>

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

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

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

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

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

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

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

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

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