Volume 25 — Indiana Appellate Court Reports

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

<p>Seduction.— Complaint.— Promise of Marriage.—A complaint for seduction, which alleges promise of marriage as one of the means employed by defendant to accomplish his purpose, is not bad for failure to aver that defendant failed and refused to keep that promise, p. 10.</p> <p>Same.—Complaint.—Plaintiff’s Chastity.-—In an action for seduction the complaint need not aver the former chastity of plaintiff, p. 10. Venue.—Number of Changes.— When a party is granted one change of venue from the county, whether it is perfected or not, the party who asks it can have no other change, p. 11.</p> <p>Seduction.—Evidence.—Financial Condition of Defendant.—In an action by a woman for her own seduction, it is not error to permit the defendant to testify as tq his financial condition, p. 11.</p> <p>Trial.—Deposition as Evidence.—By Whom Bead.—Where a party who took a deposition offered the same at the trial, but read only the examination in chief, it was not reversible error for the court to permit the party against whom the deposition was taken to read the cross-examination and re-cross-examination thereof, if the deposition was read in consecutive parts, and went to the jury as a whole. pp. 12-1L</p> <p>Same.—Practice.—Admission of Deposition Taken in Another Cause Under Alleged Agreement.-—Where, on the trial of an action, a party seeks to introduce in evidence a deposition taken in another cause, upon an alleged agreement that the deposition should be so used, and the question as to whether or not such agreement had been made is submitted by means of affidavits and counter affidavits, the ruling of the trial court thereon will not be reviewed on appeal, unless it appears that the trial court abused its discretion, p. lfy.</p> <p>Seduction.-—Evidence of Prior Unchastity.-—For What Purpose Admissible.—In an action by a woman for her own seduction, evidence of specific acts of immorality on her part, prior to the time of the alleged seduction, is admissible in mitigation of damages, and -as tending to show that she was not seduced, p. 16.</p> <p>Instruction. —May Contain More Than One Proposition of Law.— An instruction is not bad because it embraces more than one proposition of law. p. 16.</p> <p>Seduction.—Measure of Damages.—In an action for seduction the plaintiff may recover damages for her anguish of mind and her pain and suffering incident to the birth of a child, the fruit of such seduction, p. 16.</p> <p>Seduction.—When Several Acts of Intercourse Constitute the Elements of One Wrong.—Where, in an action for seduction, successive acts of intercourse are shown to have occurred under a promise of marriage, and by arts, wiles, persuasions and solicitations on the part of the defendant, the several acts of intercourse may be regarded as constituting the elements of one wrong, p. 17.</p> <p>Instructions.—All Construed Together.—If the instructions given, all taken together, state the law correctly, and are not calculated to mislead the jury, the judgment will not be reversed on appeal, though one or more of the instructions standing alone do not correctly state the law. p. 18.</p>

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

<p>Warehousemen.— Receipts.— Transfer.-— Negotiable Instruments.— Bailment.—A warehouse receipt transferred by mere delivery is not negotiable under §8723 Burns 1894, and the assignee takes the same subject to any defense existing at the time of the transfer or before notice thereof to the warehousemen.</p>

<p>Trespass.—Ejectment.—Master and Servant.—Landlord and Tenant. —Forcible Entry and Detainer.—Where plaintiff occupied a house and appurtenances as a part of the contract price for services to he performed by him as a farm hand, the relation of master and servant, and not that of landlord and tenant, existed, and when, for any cause, his contract of employment was ended, his rights in the premises ended, and an action could not be maintained by him against the owner of the premises for forcible ejection, pp. 8J$.--87.</p> <p>Same.—-Ejectment.—Master and Servant.—Landlord and Tenant.— Forcible Entry and Detainer.—Section 7118 Burns 1894, relative to forcible entry and detainer, is not applicable to a case where the relation between the landowner and occupant is that of master and servant, pp. 37, 38.</p>

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

<p>Breach op Marriage Promise.—Evidence.—The testimony of plaintiff in an action for a breach of marriage promise that defendant asked her to marry him, that she consented, that he asked her to go to his home and get it ready for the marriage, and that the day for the marriage was fixed, was sufficient to justify the jury, if they believed the testimony to be true, in finding that there was an unconditional promise and agreement to marry, p. 55.</p> <p>Breach oe Marriage Promise.—Excessive Damages.—A judgment for breach of marriage promise will not he reversed as excessive unless the amount assessed clearly appears to have been the result of prejudice, partiality, or corruption, pp. 55, 56.</p>

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

<p>Pleading.—Payment.—A plea of payment to constitute a bar-to an action must allege that payment was made before the commencement of the action, p. 79.</p> <p>Same.—Payment.—Gravel-Road Certificates.—A plea of payment in an action by the assignee of a gravel-road certificate to enforce the collection thereof must allege that payment was made before the certificate was assigned and before notice to defendant of such assignment, pp. 80, 81.</p> <p>Same.—Payment.—Gravel-Road Certificates.—An answer by defendant in an action by the assignee of a gravel-road certificate to enforce collection that he furnished gravel and performed certain labor in the construction of that part of the road abutting on his lands, under an agreement with the contractor that the same was to be applied in payment of his assessments, is insufficient, where no date was specified on which such contract was entered into, and it was not shown that the contract was made prior to the issue and sale of the certificate, pp. 81-83.</p> <p>Estoppel.—Payment.—Gravel-Road, Certificates.—Pleading.—In an action on a gravel-road certificate by the assignee, the defendant answered that his assessments, on which the certificate was issued, had been paid by him in labor and material furnished in the construction of the road abutting his lands, under an agreement with the gravel-road contractor, with the knowledge and consent of the superintendent. Plaintiff replied that it had been the owner of the certificate for ten years and that defendant had made payments of interest thereon during such time, and asked for extension of time, and failed to inform plaintiff of the payment claimed to have been made by him to the contractor until it was too late to bring suit against the superintendent. Held, that the facts pleaded by the reply were sufficient to constitute an estoppel to the defense pleaded by the answer, pp. 83-89.</p> <p>Appeal and Error.—Assignment of Cross-Errors.—The action of the court in overruling a demurrer to the complaint cannot be reviewed on an appeal by plaintiff from the ruling on the answers where no assignment of cross-error was made thereon by appellee, pp. 89,90.</p>

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

<p>Taxation.—National Sanies.—A national bank cannot recover taxes paid by it on its real estate because the value thereof was not deducted from the valuation of the capital stock of the bank as required by §8471 Burns 1894, since the wrong, if any, was the overvaluation of the capital stock, which affected the individual stockholders, and not the assessment of the real estate as such to the bank.</p>

<p>Receivers.—Authority to Sue.—Pleading.—Evidence.—Where the authority of the plaintiff to sue the defendant receiver was not properly questioned by answer, it was not necessary that such authority be shown in evidence on the trial of the cause, p. 101.</p> <p>Bills and Notes. — Party in Interest.—Burden of Proof.—The holder of a note is prima facie the owner thereof, and entitled to sue upon it, and the burden of showing that he is not the real party in interest, as well as of showing payment, is upon the defendant in the event of a suit by the holder, p. 101.</p> <p>Practice.—Defect of Parties.—Waiver.—Objection to a complaint on account of defect of parties, if not made ground of dumurrer, or set up by way of answer in abatement, is waived, p. 101'.'</p>

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

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

<p>Landlord and Tenant.—Rent.—Payment.—Pleading.—A complaint in an action for the second year’s rent due under a gas lease, which, by its terms, shows that there was no rent due for the first year of the tenancy, is not rendered bad by reason of an averment “that the agreed advance payment of rental for the first year * * was duly paid by said defendants at the time said lease was executed.”</p>

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

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

<p>Criminal Law.—Former Conviction.—Disturbing Public Meeting.— An affidavit charging that on a certain day defendant “was found disturbing the peace in a certain public at Bethana Church in Greene county, State of Indiana, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana,” does not state any criminal offense, and a conviction based thereon is no bar to a subsequent prosecution for disturbing a public meeting.</p>

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

<p>Landlord and Tenant. —Lease.—Bent Payable in Advance.—Notice to Quit.—Demand for Bent.—Where a tenant from month to month by the terms of his lease is to pay his rent in advance, it is not necessary, in an action for possession for failure to pay rent when due, to prove notice to quit or a demand for the rent.</p>

<p>Trial.—Practice.—When Duty of Court to Direct Verdict.—It is the duty 'of the trial court to direct a verdict in cases where there is an entire failure of proof as to any material fact, the establishing of which is necessary to the cause of action or defense, p. 133.</p> <p>Parent and Child.—Services of Child After Majority.—Liability of Parent.—Failure of Proof.—In an action by a daughter against the administrator of her father’s estate for services rendered her father as housekeeper after she became of age, it is proper for the trial court to direct a verdict for defendant where the evidence failed to show an express or implied contract to pay for such services, p. 134.</p>

<p>Bond. — Action. — Pleading. — A contract with a city for certain sidewalk improvements provided that the work should be completed at a specified time. The bond given to secure the performance of the contract stipulated that any extension by the city of the time for the completion of the work should in no way release the sureties on the bond. The work was not completed within the time specified, but upon its completion it was approved and accepted by the city. Held, in an action on the bond by a material man for the value of materials furnished the contractor at a time subsequent to the time named for the completion of the work, that it was not necessary for the complaint to aver an extension of time by the city, and that there need be no finding of such extension other than that the work had been completed under the contract and accepted.</p>

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

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

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

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

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

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

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

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

<p>Appeal and Eeeoe«—Parties.—Notice.—The word co-parfcies, as used in §647 Burns 1894 providing that a part of several oo-parties may appeal and must serve notice of the appeal upon all the other co-parties, means parties to the judgment appealed from, and not co-plaintiffs or codefendants, pp. 220, 221.</p> <p>Same.—Joint Exceptions.—Where an exception is made jointly to the conclusions of law, and any one of-the conclusions is right the exception must fail. p. 221.</p>

<p>Municipal Coepoeations.—Street Improvements.—Bonds.—Foreclosure.—Where a property owner pays an instalment of a street improvement assessment which has been made and placed upon the tax duplicate under §4290 et seq. Burns 1894, the treasurer’s receipt discharges the lien of the assessment to the extent of the payment, and the holder of a bond issued on account of such improvement cannot maintain an action to foreclose the lien of the assessment because of the failure of the treasurer to pay such instalment to the owner of the bond.</p>

<p>Master and Servant.—Railroads.—Negligence.—Instructions.—An instruction in an action against a railroad company for personal injuries to a brakeman caused by the alleged negligence of defendant in maintaining a defective hand-hold on the side of a car which gave way when ip proper use by plaintiff, wholly ignoring plaintiff’s knowledge of the defect or danger, and authorizing a verdict for plaintiff even though the plaintiff had knowledge of the defect and danger, or could have had such knowledge by- the exercise of • ordinary care, was erroneous, p. 230.</p> <p>Railroads.—Rules Governing Braleemen.—Compliance With Rules Required.—A rule promulgated by a railroad company requiring that brakemen ‘ ‘examine and know for themselves that hand-holds and other parts and mechanical appliances which they are to use are in proper condition; and, if not, to put them so, or report them to the proper parties, and have them put in order before using,” is a reasonable rule, and a brakeman who is furnished and is acquainted with such rule has no right to presume without examination that the railroad company has done its duty in properly maintaining such appliances, pp. 229, 230, 232.</p> <p>SaMe.—Rules Governing Braleemen.—Instruction.—Burden of Proof. —Where a brakeman was required by the rules of the company to examine and know for himself that all ladders, hand-holds and appliances which he was to use were in proper condition, and if not to put them so, it was erroneous, in an action by such brakeman for personal injuries caused by the giving way of a hand-hold, to instruct the jury that unless it was shown that the plaintiff had been given sufficient time to make the inspection, and provided with necessary tools therefor, he would not be bound by the rule, since by such instruction the plaintiff would be relieved of the burden the law places upon him to show his own want of knowledge of the defects, pp. 233,234. ,</p>

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

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

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

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

<p>Reatos, Statute oe.—Sheriff's Certificates.—Contracts of Sale.—A sheriff’s certificate of sale of real estate represents an interest in the land, and a contract to sell or transfer such certificate is within the statute of frauds, and, to be enforceable, must be in writing.</p>

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

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

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

<p>Executors and Administrators.—Execution of Mortgage.—Personal Liability.—A will gave the executor power to mortgage decedent’s real estate to pay debts. The executor mortgaged the real estate without order of court and afterward reported the execution of the mortgage to the proper court and the same was approved. The mortgage was given to secure the payment of certain promissory notes executed by the executor as such. The mortgage referred to the power given by the will, and contained a personal covenant on the part of mortgagor to pay the sum secured. The proceeds derived therefrom were applied to the payment of the decedent’s debts and the discharge of liens upon the real estate mortgaged. Default was made in the payment of the notes and the mortgage was foreclosed and the land sold for a sum less than the amount of the debt. Held, that the executor was personally liable for the deficiency. pp. 272-278.</p> <p>Executors and Administrators.—Mortgages.—Personal Liability.— Interpretation by Parties.—Where a mortgagee foreclosed a mortgage executed by an executor upon his decedent’s estate, the act of foreclosure did not affirm the proposition that the debt was the debt of the decedent’s estate 'and not that of the mortgagor so as to bind the mortgagee and prevent him from proceeding against the mortgagor personally for a deficiency in the payment of the debt by the sale of the mortgaged premises, pp. 278, 279.</p>

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

<p>Corporation.—Employment of Physician for Injured Employe.— Authority of Agent.—The employment of a physician by the manager of a private corporation, to render medical and surgical treatment on behalf of an employe who had been injured while in the line of his duty, will not bind the corporation, in the absence of a showing that such employment was within the scope of the manager’s authority.</p>

<p>Sales.—Rejection of Goods.—Possession by Vendee.—Pleading.—In an action for goods sold and delivered defendant filed a special answer or counterclaim alleging that tbe goods were sold by sample and that under the agreement defendant had the right to reject inferior goods furnished; that inferior goods were delivered and defendant promptly rejected the faulty goods, notified plaintiff thereof and asked instructions as to what disposition should be made of the inferior goods, and that plaintiff refused to receive back the .goods so rejected or to substitute acceptable goods therefor. Held, that the facts pleaded do not bring the case within the rule that when goods are kept by the vendee in his possession the presumption arises that the goods were of the kind bought and satisfied the contract of sale, and that the answer was good as against a demurrer for want of facts, pp. 285, 286.</p> <p>Appeal and Error.—Exceptions.—The action of the court in overruling a motion for a new trial will not be considered on appeal, where it is not shown that any exception was taken to the ruling on the motion at the time it was made, but that an exception was taken on the following day and a motion for a nunc pro tunc entry made and overruled, and no error assigned on such ruling, p. 286.</p>

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

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

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

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

<p>Damages.—Negligence.—Proximate Cause.—Railroads. —Where defendant negligently ran its locomotive through the streets of a town at a dangerous and unusual rate of speed and struck a person and hurled his body at and against plaintiff, who was standing on the platform of defendant’s station, and injured him, such injury was not the natural and probable consequence of defendant’s negligence, and plaintiff cannot recover damages therefor.</p>

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

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

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

<p>Appeal and Error.—Assignments of Errors.—New Trial.—Errors in the giving and in the refusal to give instructions, and in the admission and rejection of evidence cannot be presented for review on appeal by independent assignments of error. Such questions must be assigned as causes in a motion for a new trial, p. SS9.</p> <p>Same.—Bill of Exceptions.—Evidence.—"Review.—Where a bill of exceptions shows upon its face that it does not contain all the evidence, the Appellate Court will not consider any question which depends for its proper decision upon the evidence, although the bill states that it contains all the evidence, p. Sifi.</p> <p>Bastardy. — Amount of Judgment. — Discretion of Court. — The amount of judgment in a bastardy proceeding is largely in the discretion of the court .and will not be disturbed on appeal unless it is shown that the judge has abused his discretion, p. S40.</p>

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

<p>Corporations.—Enforcement of Stock Subscription.—A subscriber tt> the capital stock of a proposed corporation can be compelled to pay such subscription only upon a showing that a de jure organization of the proposed corporation has been formed, p. 353.</p> <p>Same.— Organization.—Statute Construed.—Where it is sought to incorporate under the manufacturing and mining statute, §5051 Bums 1894, and it is specified in the articles that the objects of the corporation are to furnish motive power to carry on manufacturing and mining business, to manufacture all kinds of merchandise, and to sink and operate oil and gas wells, to take stock in other corporations, loan and donate money, etc., the articles of incorporation are void. pp. 353-357.</p>

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

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

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

<p>Courts. — Justices of the Peace.—Jurisdiction.—Presumption.—A justice of the peace court being of special limited jurisdiction no presumptions will be indulged as to its jurisdiction, but when it is made to appear that it has acquired jurisdiction the same presumptions are indulged in favor of its proceedings as of courts of general jurisdiction, pp. 379-382.</p> <p>Garnishment.—Action on Bond.—Validity of Proceeding. —Estoppel.—Where a plaintiff instituted an action in garnishment before a justice of the peace, filed an affidavit and bond conditioned that he would prosecute his proceedings in garnishment to effect and pay all damages if such proceedings should be wrongful or oppressive, and procured the issuance of a writ of garnishment, he will be estopped from setting up the defense, in an action on the bond, that no affidavit in attachment was ever filed and the writ was improperly issued, pp. 382, 383.</p>

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

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

<p>Nuisance.—Complaint.—Misjoinder of Parties.—In an action by two plaintiffs for the abatement of a nuisance, a complaint which expressly alleges that the plaintiffs were severally injured in sums specified is insufficient for want of sufficient facts.</p>

<p>Judgment.— Action to Set Aside Default.—Defect of Complaint in Original Action not Cured by Judgment.—On. appeal in an action to set aside a judgment taken by default, a fatal defect in the complaint in the original action is not cured by the finding of the court, since no trial was had.</p>

<p>Pleading.—Parties.— Cross-Complaint.—A cross-complaint by part of defendants, in an action on a promissory note, against the other defendants to recover from cross-defendants certain attorney’s fees for which cross-plaintiffs were liable, and which cross-defendants by way of compromise and settlement of the original action had agreed to pay, is bad on demurrer, since the matters alleged therein are not germane to the complaint, and do not in any' way affect the subject-matter of the original action.</p>

<p>Erom the Porter Circuit Court. Affirmed.</p>

<p>Action.—Demand.—Suit on Contract for Wages.—In an action- for wages due under a contract it is not necessary that the complaint allege a previous demand, since the suit constitutes a sufficient demand, p. JfiS.</p> <p>Attachment.—Quashing Writ.—Complaint. — Attachment proceedings are merely ancillary to the main action, and the quashing of the writ of attachment does not carry with it the complaint, p. J/.08'.</p> <p>Appeabance.—Judgment.—Where in an action against a foreign corporation on account and in attachment defendant appeared to the main action and filed answer, such appearance gave the court power to render a personal judgment, p. Jfi8.</p> <p>Trial.—Jury.—An action on account and in attachment is properly submitted to a jury for trial, since the attachment is not the foundation of the action, p. 409.</p> <p>Verdict.—Uncertainty.—Description of Property.-—In an action on account and in attachment a verdict for plaintiff in a named sum, and that he was entitled to have the property attached sold, without specifically describing the property, is not so uncertain that a judgment cannot be pronounced upon it. p. 409.</p>

<p>Erom the Marion Superior Court. Affirmed.</p>

<p>Erom the Randolph Circuit Court. Affirmed.</p>

<p>Erom the Madison Circuit Court. Affirmed.</p>

<p>Municipal Corporations.—Repair of Street by Independent Contractor.—Negligence of City.—A street was being improved by independent contractors. It became necessary to lower a bridge forming part of the street so as to correspond with the new grade. One end of the bridge was raised several inches in order that the abutment might be cut down. While the bridge was thus raised the workmen employed by the contractors placed a block at the end of the bridge, making a step for footmen who continued to cross. During the time the bridge and street were being repaired the plaintiff passed over the bridge several times, using the block as a step in descending therefrom. At dusk on a certain evening, about two hours after plaintiff had thus crossed the bridge in safety, he attempted again to cross. No lights or barriers having been placed at the bridge, the plaintiff fell and was injured. Held, that .the city was liable, pp. 428-436.</p> <p>Damages.—Excessive Damages.—Appeal.—The verdict of a jury will not be set aside on appeal on the ground that the damages assessed are excessive, where the damages assessed are not so great, in view of the evidence, as to induce the belief that the jury acted from prejudice, partiality or corruption, pp. 436, 437.</p> <p>Evidence.—Standard Life Tables.—Personal Injuries—In an action against a city for personal injuries sustained by reason of the city’s negligence, standard life tables may be introduced in evidence to show the probable duration of the plaintiff’s life on the question of compensation, where the injuries are shown to be permanent, p. 437.</p>

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

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

<p>Evidence.—Notice.—Where, in an action for the purchase price of goods sold, defendant claimed he had disposed of his store and business in connection therewith prior to the sale of the goods, evidence as to a publication of a notice of the sale of the store, in a newspaper, in the town in which the store was located, was properly excluded, it not being shown that plaintiff, a non-resident, had notice of such publication, or any opportunity of seeing a copy thereof. UP- 470, 471.</p> <p>Appeal and Error.—Evidence.— The ruling of the court in excluding testimony will not be reversed on appeal if the ruling can be sustained upon any theory, whether advanced at the time of the ruling or not. p. $71.</p> <p>Same.—Jury.—A judgment in an action on an account will not be reversed because the jury took to their room the complaint, with which was filed a verified bill of particulars, at the end of which was a memorandum of interest due on the account, where the proper amount of interest was included in the verdict, p. $71.</p>

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

<p>Alteration of Instruments.—Bonds.— Contracts.—Principal and, Surety.—Release of Surety.-—In an action on a bond given to secure the performance of a contract entered into by an agent for the sale of goods, it was shown that the contract authorized the agent to sell goods “ in the State of Indiana and,” with a blank of two and a half lines in the printed form of contract after the word “and,” but the contract was otherwise complete upon its face; that after the execution of the bond by defendants, on the back of the contract, and without their knowledge or consent, plaintiff filled in the blank space, giving the agent additional territory in the state of Illinois. Held, that the alteration was material and unauthorized, and released the sureties on the bond.</p>

<p>Municipal Cobpoeations. — Sewers. — Construction. — Declaratory Resolution.—A resolution declaring the “desirability of, and ordering the construction of a sewer,” is a substantial compliance with the statute as to the declaration of necessity, since by ordering the improvement made the council necessarily determines the necessity thereof, p. 486.</p> <p>Same.—Sewers.—Assessments.—Complaint.—A complaint to enforce a sewer assessment lien is not bad as failing to show that the contract for the improvement was let to the best bidder, where it is averred that notice was published calling for bids, and afterwards the bid of a person named was accepted, p. 486.</p> <p>Same.—Sewers.—Resolution.—Notice.—An assessment made for the construction of a sewer is not invalid because of the failure of the council to adopt a resolution of necessity and give notice thereof as provided by §4389 Burns 1894, where notice was given for hearing objections to the final estimates as provided by §4294 Burns 1894. pp. 486-488.</p> <p>Same.—Sewers.—Assessments.—A resolution for the construction of a sewer provided that the entire cost thereof should be paid from the general fund of the city, and the clerk was ordered to advertise for bids, conditioned that the contractor should accept the obligation of the city in payment for the work. After the completion of the work it was ascertained that the city was indebted beyond the constitutional limit, and to relieve the city from the debt, and give the contractor better security, the city made a new and different estimate, and assessed the cost thereof to the property owners. Held, that the assessments were invalid, pp. 488-498.</p> <p>Same.—Sewers.—Assessments.— Estoppel.—Where a sewer was constructed under a resolution providing that the cost thereof should be paid from the general fund of the city, a property owner who was benefited by the improvement and stood by and permitted the work to proceed without objection is not thereby estopped from contesting the validity of an assessment against his property made after the work was completed, accepted, and paid for in the manner provided for in the resolution and contract, p. 491.</p>

<p>Negligence. — Question of Fact. — Railroads. — The question as to whether a railroad company was guilty of negligence in running a passenger train with the locomotive in the rear was properly submitted to the jury, in an action by a passenger for personal injuries, caused by the train striking a horse on the track, p. 497.</p> <p>Same.— Proximate Cause.—Railroads.—The negligence of a railroad company in running a train with the locomotive in the rear was the proximate cause of an injury to plaintiff while a passenger thereon, caused by the train striking a horse on the track, pp. 497, 498.</p> <p>Special Finding.— Verdict.— Evidence.— Railroads.— Personal Injuries.—A special finding in an action against a railroad company for damages for personal injuries to plaintiff while a passenger on defendant’s train, caused by the train striking a horse on the track, to the effect that the train wai=> running at a speed of twelve miles an hour, over a safe track, well fenced, with good cattle-guards at crossings, safe cars and locomotive, in charge of competent men, when the horse suddenly sprang upon the track, fifteen or twenty feet in front of the train, and it was impossible to stop the train and avoid a collision, is not in irreconcilable conflict with a general verdict forplaintiff, where the evidence showed that the train was being run backward, with a light caboose on the front, and that a train run in such manner was easily derailed by coming in contact with an obstruction on the track, pp. 438-600.</p> <p>Carriers.—Injury of Passenger.—Negligence.—Where a passenger is injured by the derailment of a train he is only required to show that he was injured without fault on his part, the law then presumes negligence upon the part of the carrier, and it devolves upon the carrier to remove such presumption, p. 600.</p> <p>Evidence. — Expert Testimony.— Railroads.—The testimony of an experienced railroad man as to the danger in running a train backward is admissible in the trial of an action for personal injuries received by a passenger who was injured while riding on a train run with the engine in the rear. pp. 601, 60S.</p> <p>Evidence.—Rebuttal.—Damages.—Railroads.—Where, in. the trial of an action against a railroad company for injuries received by a passenger caused by a collision of the train with a horse on the track, the defendant introduced evidence to the effect that the road was fenced, and stock was prohibited from running at large, it was proper for plaintiff to prove in rebuttal that stock was frequently seen on the road. pp. 504, 505.</p> <p>Carriers.—Personal Injury of Passenger. — Negligence.—Instructions.—An instruction in the trial of an action against a railroad company for personal injuries to a passenger that when a carrier receives a passenger on its train it undertakés to carry him safely to his destination was not misleading when considered with another instruction that the greatest possible care to be exercised by a railroad company for the safety of its passengers is not to be understood as requiring the utmost degree of care which the mind can attain to or is capable of inventing, but simply means the greatest degree of care that is consistent with the particular mode of transportation. pp. 505-508.</p>

<p>Malioiou^ Prosecution.—Evidence.—Financial Condition of Defendant.—In the trial of an action for malicious prosecution, it was not error to admit evidence as to defendant’s financial condition, p. 509.</p> <p>Same.—Evidence.—Malice.—Advice of Lawyer.—Where, in the trial of an action for malicious prosecution, defendant introduced evidence to show that he acted upon the advice of a lawyer in instituting the criminal prosecution, evidence that the person referred to did not hold himself out to the public as a lawyer was competent as tending to show that defendant acted upon the advice of one who was not a lawyer, pp. 509, 510.</p> <p>Same—Evidence.—Malice.—Advice of Lawyer.—The fact that defendant in an action for malicious prosecution stated the facts to an attorney at law and sought his advice before instituting the criminal prosecution, is not conclusive evidence that he acted without malice, or that probable cause existed, p. 510.</p> <p>Same .—.Probable Cause.—Instructions.—Where, in an action for malicious prosecution, the fa'cts necessary to constitute probable cause were controverted, it was proper for the court to inform the jury that certain facts, if proved, would not constitute probable cause. pp. 510, 511.</p>

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

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

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

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

<p>Erom the La Porte Circuit Court.</p>

<p>From the La Porte Circuit Court.</p>

<p>Executors and Administrators—Ex Parte Application for Letters of Administration.—Discretion of Court.—Although the circuit court has a discretion in the granting or refusing applications for letters of administration, yet where the proceeding is ex parte and a verified application shows the party entitled to letters, they should be granted, p. 533.</p> <p>Same.—Letters May Be Granted Though No. Tangible Assets.—The right to letters of administration does not depend upon the existence of tangible assets to administer. Letters may be granted in order that an action may be prosecuted, pp. 533,</p> <p>Same.—Letters of Administration to Prosecute Action on Official Bond of Sheriff for Permitting Death of Prisoner.—Where a sheriff of a county permited a prisoner to be taken from the county jail and put to death, the widow of the deceased prisoner was entitled to letters of administration, although the only asset of such deceased prisoner’s estate was the right of action on the official bond of the sheriff fqr breach of official duty, and such breach had occurred more than two years prior to the application for such letters. pp. 534, 535.</p>

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

<p>Work and Labor.—Bill of Extras. — Breach of Contract. — Complaint.—A charge in a complaint by a plastering contractor, in an action to recover for extra work and certain expenses incurred in carrying out his contract, that under the contract defendant was to notify plaintiff when to begin work, that he notified him, and plaintiff took a large number of men a distance of sixty miles to commence the work and found the building not ready, and was compelled to return again, at great expense, states a cause of action. pp. 539-542.</p> <p>Appeal and Error.—Motions.—The action of the court in overruling a motion to strike out parts of the complaint is not a ground for a new trial, and such ruling incorporated in a motion for a new trial presents no question for review, pp. 542, 543.</p> <p>Same.—Motions.—A. judgment will not be reversed because of the action of the court in overruling a motion to strike out parts of a complaint, p. 543.</p> <p>Evidence.—Contracts.—In the trial of an action by a subcontractor for extra work, the court erred in permitting a witness to testify as to the work plaintiff was required to do under the contract, where the original contract and plans and specifications were made a part of the contract, and were not ambiguous, indefinite <jr uncertain pp. 544, 545.</p> <p>Contracts.—Work and Labor.— Bill of Extras.— Instructions.— Where a contract sued upon by a subcontractor for extra work in plastering a school building embraced the original contract and plans and specifications, which provided that any changes or modifications in the contract or specifications could only be made in writing, by the parties to the original contract, an instruction to the effect that plaintiff could not recover for extra work or material, except for crooked walls, unless it was shown that a change, in writing, was made in the plans and specifications requiring extra work or extra material, was improperly refused, pp. 545, 546.</p> <p>Same. — Construction. — Instructions. — In an action by a sub-contractor to recover for extra work and material in the construction of a building, the question as to what plaintiff was required to do under the contract was a matter for the determination of the court, and not for the jury. pp. 546, '547.</p>

<p>Master and Servant. — Negligence. — Complaint. — In an. action against a city for damages, the complaint set forth that plaintiff 's intestate was employed by defendant city to assist in the digging of a trench sis and one-half feet deep, preparatory to the laying of water-mains; that while intestate was thus engaged at a point where the ground was compact and hard, he was directed by defendant’s superintendent to go to another point, where the trench had been dug by other workmen, to dig bell-holes in the bottom of the trench, and where the banks or walls of the trench were composed of- earth of a loose and unadhesive character, which fact was unknown to deceased, but well known to the defendant; that without any fault on the part of the deceased the trench caved in, causing bodly injuries from which death resulted. Held, that the complaint stated a good cause of action, pp. BJfi-BBB.</p> <p>Master and Servant.—Answers to Interrogatories.—General Verdict. —Conflict.—Where an employe of a city was digging bell-holes at the bottom of a deep water-main trench dug by other workmen, and was killed by the caving in of the walls because not properly braced, answers to interrogatories propounded to the jury showing that the deceased was experienced to some extent in such work, and that by the exercise of his senses of sight and feeling he could have learned of the danger, are not in such conflict with a general verdict in favor of the plaintiff as to render such general verdict erroneous pp. 556, 557.</p> <p>Same.—Contributory Negligence.— Safe Place to Work.—Where a person employed by a city to assist in the digging of a trench six and one-half feet deep, preparatory to the laying of water-mains, was engaged at the work at a point where the walls of the trench were solid and firm, and was ordered to another part of the trench, dug by other workmen, where the walls of the trench were composed of gravel and loose earth, the fact that in getting from one point to the other the employe -walked along the bottom of the trench and had good opportunity to notice the difference in the character of the walls was not sufficient to charge him with contributory negligence, since he had a right to assume, in the absence of warning or notice, that the city had furnished him a safe place to work. pp. 557. 558.</p> <p>Appeal.—Joint Assignment in Motion for New Trial.—Instructions. —A joint assignment, in a motion for a new trial, that the court erred in the giving or the refusal to give a series of instructions will not be considered on appeal, where appellant’s attorney has failed to present in his brief an argument against the ruling of the trial court as to each instruction in the series, p. 559.</p> <p>Trial.—Failure of Jury to Answer Interrogatories.—In the trial of an action against a city for the death of a person employed to assist in the work preparatory to the laying of water-mains, which death was caused by the caving in of the walls of a trench dug by other workmen, the following interrogatory, among others, was propounded to the jury: “If you answer that there was any secret, hidden, latent, or unexposed danger upon or along the line of said trench, state fully and clearly what it was.” Held, that upon the failure of the jury to return an answer to the interrogatory, it was not error for the court to refuse to require such answer, since the interrogatory was too general in its nature, p. 560.</p> <p>Same.—Opinion Evidence.—Notice.—In the trial of an action against a city for the death of an employe, caused by the caving in of a water-main trench, another person employed on the work at the same time was permitted to answer a question calling for a conversation had with the city superintendent, in which conversation witness had refused to do the work afterwards assigned to the deceased, for the reason that “it was not safe.” Held, that the question was not objectionable as calling for an opinion of the witness, since it was adapted to show notice to the city. %>. 560.</p>

<p>Receivers.—Appointment in Another State.—Foreign Corporation.— Attachment.—A receiver appointed for a foreign corporation in another state does not thereby acquire such title to the property of the corporation situate in this State as to defeat an attachment subsequently issued at the instance of a creditor by a court in this State.</p>

<p>Corporations.—Toll Roads—Action for Toll.—Defense.—Want of Repair.—Where a turnpike company was incorporated by special act of the General Assembly in the year 1848, the company in accepting the charter impliedly agreed to maintain the road in good repair, and the act of 1859 (§3684 Burns 1894) rendering tolls uncollectible where turnpike roads are permitted to remain out of repair, does not impose any additional burden, and its provisions are therefore binding on such company, pp. 568-570.</p> <p>Turnpikes and Toll Roads.—Action for Toll.—Instructions.—In an action by a turnpike company to recover tolls, to which the defendant pleaded as a bar to recovery, under §3684 Burns-1894, that the road was out of repair, it was proper for the court to inform the jury by proper instruction what constituted condition of repair or want of repair; whether such condition existed or not having been submitted to the jury in other instructions. It was also proper to instruct the jury that if, at any time, any one or more of the trips for -which recovery was sought were taken, the road was in good repair, they should find for the plaintiff for the amount charged for ' such trip or trips, p. 571.</p> <p>Trial.—Misconduct of Jury.—New Trial.—A new trial will not be granted on account of misconduct of jurors, unless it be made to appear affirmatively that the party complaining had no knowledge of such misconduct before the jury retired to consider their verdict. p. 572.</p>

<p>Landlord and Tenant.— Contracts.— Assignment.— Rents.— Complaint.—A complaint alleged tliat defendants executed a contract wherein it was agreed that they should not remove their stock of goods until the rent then due and to become due should be paid, and that the stock should stand good for the rent, and that such contract was duly assigned to plaintiff; that defendants failed to comply with said contract in that the stock of goods was removed without the knowledge or consent of plaintiff and disposed of and delivered up to the purchaser, and refused to pay the rent, or apply the proceeds of the sales thereon. Held, that the complaint was indefinite, and was insufficient as based on an action for breach of contract, or for rent. pp. 574, 575.</p> <p>Appeal and Error.—Harmless Error.—The rule that error in overruling a demurrer to a complaint is cured by special finding of facts and conclusions of law thereon, is based upon the premise that a right result was reached, p. 576.</p>

<p>Sales.—Failure to Comply with Terms of Sale.—Plaintiff bid off growing wheat at a certain price per acre at an administrator’s sale. By the terms of the sale a credit was to be given until December the 25th, but the auctioneer announced that the purchaser of the wheat should pay one-half of the bill for a quantity of fertilizer used in the sowing of the wheat. Notes were prepared and delivered to plaintiff for signature covering the amount of the purchase. Plaintiff executed one of the notes with surety and returned them to administrator saying that his surety refused to sign the fertilizer note. The administrator returned the notes to plaintiff and afterwards sought to have the matter settled, but plaintiff stated that the notes were in the hands of his attorney. The clerk of the sale reported the wheat unsold. Plaintiff afterwards paid the fertilizer bill to the fertilizer company. Held, that the administrator was warranted in treating the wheat as unsold, and that plaintiff could not recover damages for failure to deliver the wheat.</p>

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

<p>Criminal Law.—Failure to Pay Dog Tax.—Indictment.—An indictment, under the act of 1897 (Acts 1897, p. 178), for keeping or harboring a dog without holding a township assessor’s or township trustee’s receipt showing the required tax has been paid for same as provided in said act, which follows the language of §9 thereof is sufficient.</p>

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

<p>From tlie Madisou Superior Court.</p>

<p>Action.—Limitation.—Death by Wrongful Act.—Statutes In Pari ,Materia.—All statutes of the State on the subject of death by wrongful act are in pari materia, and must be construed together, and when so construed the provision of §285 Burns 1894 limiting the time within which an action may be brought for death by wrongful act to two years applies to §7473 Burns 1894, known as the coal mining act. pp. 503-596.</p> <p>Limitation of Actions.—Death by Wrongful Act.—Infants.—The provisions of §285 Burns 1894 limiting the time within which an action may be brought for death by wrongful act to two years applies to infants as well as to adults, pp. 596, 597.</p>

<p>Trial.—Witnesses.—Cross-Examination.—Tbe extent to which the cross-examination of a witness may be carried for the purpose of determining his credibility is within the discretion of the court, and a cause will not be reversed for such reason unless an abuse of discretion is shown, pp. 598, 599.</p> <p>Same.—Criminal Law.—Character Witness.—The character a defendant is permitted to introduce in evidence in the trial of a criminal charge is the character involved in the charge, p. 599.</p> <p>Same.—Criminal Law.—Evidence.—Intoxicating Liquors.—Where, in a prosecution for selling intoxicating liquors on Sunday in violation of law, a witness testified that defendant’s character as a saloon-keeper was good, there was no error in permitting the"witness to be asked on cross-examination whether he had ever heard about defendant running gambling in connection with the saloon, pp. 599, 600.</p> <p>Trial.—Criminal Law.—Character Witness.—Where, in a criminal prosecution, a witness, who had testified to defendant’s good character, said on cross-examination that he had never heard any one speak about his character, it was proper to permit such questions to be asked as would disclose the facts on which the witness based his answer, p. 600.</p> <p>Intoxicating Liquors.—Elegál Sales.—Prosecution.—Evidence.—A judgment convicting defendant of the charge of selling intoxicating liquors in violation of law will not be reversed because the judgment was based on the evidence of two witnesses who were employed to obtain evidence of violation of law and purchased the liquor constituting the illegal sale, since the act of purchasing the liquor was no legal wrong, and it was for the'jury to determine the truth of the testimony, pp. 600, 601.</p> <p>Criminal Law.—Evidence.—Trial.—In a prosecution for selling liquor in violation of law the court erred in requiring defendant, who voluntarily became a witness in his own behalf, to answer questions on cross-examination which might expose him to criminal prosecution. pp. 601, 60S.</p>

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

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

<p>Appeal and Error.—Record.—Motion to Strike Out Parts of Pleading.—In order to present any question for review upon appeal on the ruling of the court upon a motion to strike out a pleading or a part thereof, such pleadings or parts of pleading, the motion, and ruling thereon, must be brought into the record by a bill of exceptions. p. 630.</p> <p>Beneficial Associations.—Forfeitures.—Prohibited Occupations.— Estoppel.—Where the local officers of a fraternal insurance company received the dues and assessments of a member after he had engaged in the liquor traffic, with a knowledge of such fact, and the company received and retained the last payment with a knowledge thereof, and of the further fact that he died while so engaged, the company will be estopped from asserting a forfeiture of the certificate under a by-law prohibiting members from engaging in the sale of intoxicating liquors, pp. 631-638.</p> <p>Same.—Forfeitures. — Prohibited Occupations.—Estoppel.—Where a fraternal insurance company sent blank forms for proof of death and required them to be filled out and sworn to by beneficiary, with knowledge that insured had engaged in the sale of intoxicating liquors in violation of the by-laws of such company, the company is estopped from setting up a forfeiture of the certificate on the ground that he engaged in such prohibited occupation, pp. 638-640.</p> <p>Sams.—Certificate.— By-Laws.—"Conflict.—Where the certificate issued by a fraternal insurance company provides that the board of trustees may suspend members from all benefits of the order who after admission engage in occupations prohibited by the by-laws, and the by laws provide that members who engage in such prohibited occupations shall stand suspended, the court, in determining the rights of the parties, will adopt the provision that will give the greater right to the insured and his beneficiary, pp. 640-642.</p> <p>Beneficial Assocations.—Collection of Assessments.—Local Officers Agents of Company.—Where payment of dues and assessments to the local officers is the only method provided by a fraternal insurance company, and it is made the duty of such officers to transmit same to the home office of the company, the local officers in the collection and transmission of dues and assessments are the agents of the company, notwithstanding a ^provision in the by-laws to the contrary. pp. 643, 644.</p>

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

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

<p>Negligence.—In Construction of Swimming Pool at Public Park.— Action for Death.—Complaint.—In an action by a parent for the death of a son, the complaint alleged that a railroad company, for which the defendant was acting as receiver, owned and operated for profit a park; that located in the park was a body of water held out to the public as a suitable place for bathing, swimming, and diving; that defendant had negligently left concealed under the surface of the water certain timbers; that plaintiff’s son, desiring to bathe in the water thus provided, and, being ignorant of the concealed timbers, leaped head foremost into the water, striking the timbers, sustaining injuries from which death resulted; that the defendant was conducting the business of the park under the order and direction of the court. Held, that the complaint stated a good cause of action, pp. 660-652.</p> <p>Same.—Contributory Negligence.—The receiver of a railroad company was operating for profit a public park owned by such company, in which park there was a body of water held out to the public as a suitable place for bathing. A plank walk with rope barriers about three feet high was thrown around a portion of the bathing place, forming an inclosed pool. Notices were posted in conspicuous places in the adjoining bath-house as follows: ‘ ‘Bathers who are not good swimmers must not go outside of the pool. Good swimmers do so at their own risk.” A boy sixteen and one-half years old, able to read the English language, an active diver and swimmer, stood on the walk and dived over the guard rope into the water outside the pool. His body came in contact with obstructions concealed beneath the water, and unknown to him. Held, that the boy was guilty of such contributory negligence as to bar a recovery for his death resulting therefrom, pp. 652-654.</p>

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

<p>Contracts.—Construction.—A contract “for five M., each, letterheads, 8-lxll, business cards, envelopes, statements, at twelve dollars per M., and hangers * * * at 22c. each,” is construed as a matter of law to be a contract for the purchase of 5,000 hangers at 22c. each, as well as for 5,000 each of letter-heads, cards, envelopes and statements at twelve dollars per thousand, pp. 663-669.</p> <p>Same. — Construction. — A contract is only to be construed most strongly against the moving party when it will equally admit of two or more interpretations, p. 669.</p>

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

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

<p>Assignment for Benefit of Creditors.—.Mortgages— Instructions not Applicable to Evidence.—An insolvent debtor executed a mortgage on real estate to defendant to secure plaintiff and other creditors whom he wished to prefer, defendant giving due bills to each of the creditors so secured as a memorandum of claim. The next day the debtor made a general assignment for the benefit of creditors, and the assignee, pursuant to an order of court, sold and conveyed the land to defendant. Defendant paid off prior liens, and settled with all of the other creditors, except plaintiff, who refused to accept less than the full amount of his claim and brought suit on the due bill given him by defendant. Held, that the court erred in instructing the jury that if they believed that defendant accepted a deed to the land assuming the encumbrances thereon he would be liable for the full amount of plaintiff’s debt, where the deed is not in evidence, and there is no evidence that it contained any stipulation for the assumption of the encumbrances by the grantee.</p>

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

<p>Negligence.—Cleaning Drain.—Damages to Stock on Lands Outside the Line of the Ditch.—That one has the right to go upon the lánds of another for the purpose of dredging or cleaning a ditch does not relieve him for acts of negligence committed upon the lands outside the line of the ditch, pp. 683-684.</p> <p>Judicial Notice.—Animals.—Courts will not take judicial notice that coal, free in its constituent parts from poison, would not, if taken into the stomach of animals, have a tendency to produce death. p. 684.</p> <p>Negligence.—Complaint.—Contributory Negligence.—In an action for damages resulting from acts of negligence committed in clean* ing a drain, on lands outside the line of the ditch, an allegation in the complaint “ that by reason of said careless, negligent, and unlawful acts of said defendant, which were without fault or negligence on plaintiff’s part,” sufficiently negatives contributory negligence on the part of plaintiff, p. 684.</p> <p>Appeal and Eeeoe.—When Evidence Not in Record.—Under the act of March 3, 1899 (Acts 1899, p. 384), the evidence is not properly in the record, where it is not shown that any time was fixed by the court in which the transcript of the evidence was to be filed with the clerk, the clerk does not certify that the certificate of the judge attached is that of the judge, and the certificate of the clerk does not show when the longhand manuscript of the evidence was filed in his office, pp. 684, 685.</p> <p>Same.—Instructions.—Presumption.—It will be presumed on appeal that instructions tendered and refused were refused because they were not tendered in time, where the record does not affirmatively show that they were tendered before the argument was commenced. p. 686.</p>

<p>Appeal.—Joint Assignment of Errors.—Where three parties have joined in an appeal by the assignment of joint errors, and have filed a joint brief, it is too late for two of them to say that they decline to join in the appeal of their co-appellant, p. 690.</p> <p>Same.—Joint Assignment of Error.—A joint assignment of error must be good as to all the appellants who join therein, or it will not be good as to any. pp. 690-692.</p> <p>Work and Labor.—Foreclosure of Laborer’s Lien.—Complaint.—In an action to recover for work and labor performed, and to foreclose a laborer’s lien, if the complaint states facts sufficient to support a personal judgment, it will be good against a demurrer, although it may not state facts sufficient to justify a foreclosure of the lien. pp. 690, 691.</p>

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

<p>Vendor and Purchaser.— Contracts.—Assignment.—Liability of Assignee for Purchase Money.—Plaintiff entered into an agreement with C. to convey to him certain described real estate upon the payment of notes executed for the purchase price, it being provided that upon failure to make any payment the contract should become a lease and the payments made should be applied as rental for the several terms between the times of payment, and that the covenants and agreements should extend to the assigns of the parties. The contract was assigned to defendant, who went into possession of the land, but did not assume the payment of the notes, and continued in possession until default was made in payment. Held, that although a liability existed for use and occupation, an action could not be maintained against assignee on the note.</p>

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

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

<p>From the La Porte Circuit Court.</p>

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