Volume 28 — Indiana Appellate Court Reports

From Vanderburgh. Superior Court; J. H. Foster, Judge. Action by Swift & Co. against Dyer-Veatch Co. and others to set aside a mortgage. From a judgment for defend.ants, plaintiff appeals.

From Marion Superior Court; J. M. Leathers, Judge. Action by Laura E. De Ruiter against Derk De Ruiter for divorce and alimony and to set aside a conveyance of real estate. From a judgment for plaintiff, defendant appeals.

<p>Erom Marion Superior Court; J. L. McMaster, Judge.</p> <p>Suit by Provident Saving, Loan and Investment Association against Hiram E. Rose and others. Erom a. decree for plaintiff, defendants Hiram E. Rose and Nellie-B. Rose appeal.</p>

From Sullivan Circuit Court; W. W. Moffett, Judge. Action by Joseph H. Wortman against Adam V. Minich ■and others, for damages for personal injuries. From a judgment for defendants, plaintiff appeals.

From Tippecanoe Circuit Court; TV. C. L. Taylor, Judge. Frank Flint was granted a license to sell intoxicating liquors by tbe circuit court on appeal from the board of commissioners refusing a license, and William H. Good-wine, who was a defendant in the proceeding, appeals.

<p>Prom Warren' Circuit Court; C. E. Lake, Special Judge.</p> <p>Action by Thomas J. Richards against the Chicago & Eastern Illinois Railroad Company for personal injuries. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Justices of the Peace. — Judgments Less than §50. —Resewed Questions of Law. — Section 642 Bums 1901, which provides a manner of presenting to the appellate tribunal under certain conditions, reserved questions of law, without bringing up the whole record, applies to cases appealable in the first instance, and not to cases which §644 Burns 1901 mates unappealable.</p>

From El'khart Circuit Court; E. E. Mummert, Special .Judge. Application by George W. McLaughlin for a license to ¿sell intoxicating liquors, and O. P. Wisler and others filed .a remonstrance. From a judgment affirming the action •of the board of commissioners refusing a license, the applicant appeals.

Erom Delaware Circuit Court; Joseph G. Leffler, Judge. Suit by the International Building and Loan Association against Preston S. Hartman and others to foreclose a mortgage. Erom a judgment for plaintiff, defendants appeal.

Prom Vanderburgh. Superior Court; J. H. Foster, Judge. Suit by the Union Mutual Building and Loan Association against Christina Aichele and others to foreclose, a mortgage. Prom a judgment for plaintiff for part of demand, it appeals.

From Porter Circuit Court; John H. Gillett, Judge. In an action by Jonas M. Lautman against Jule C. Pepin and others on a promissory note plaintiff recovered judgment, and defendants filed a complaint for a new trial on the ground that the judgment was obtained because of the perjured testimony of plaintiff. From an order sustaining a demurrer to the complaint, defendants appeal.

<p>Appeal. — Joint Assignment of Errors. — A joint assignment of errors mnst be good as to all the appellants who join therein, or it will be good as to none. '</p>

<p>Appeal. — Bill of Exceptions. — Longhand Manuscript of Evidence. — A court stenographer’s longhand manuscript of the evidence, even if in the form of a bill of exceptions, is no part of the record on appeal, where the record does not show affirmatively that such manuscript was filed in the clerk’s office after it was signed by the judge.</p>

From Vanderburgh Superior Court; L. O. Rasch, Special Judge. Action by Clement Peek against George Tretheway and others for breach of garnishment bond. From a judgment for plaintiff, defendants appeal.

From Parke Circuit Court; A. F. White, Judge. Action by William A. Deitrick against the Board of Commissioners of Parke county to collect claim for extras in the construction of gravel road. From a judgment for defendant, plaintiff appeals.

From Fulton Circuit Court; A. G. Capron, Judge. Action by Moses Barnett and others against the Bryce Furnace Company to cancel a contract. From a judgment for defendant on demurrer to complaint, plaintiffs appeal.

From Clark Circuit Court; C. W. Cook, Special Judge- Action for trespass by Ann Morgan and others against-the Kentucky and Indiana Cement Company and others. From a judgment for plaintiffs, defendants appeal.

<p>Schools. — Teaching Music. — Liability of Township for Music Charts Purchased by Trustee. — A complaint in an action against a school ■ township to recover the value of certain music charts furnished by plaintiff and placed in the schools of the township by the trustee thereof is not bad, because music is no't one of the branches of study required by the statute (§5984 Burns 1901) to be taught in the public schools, since under such statute school trustees have authority to prescribe the teaching of music in the common schools, pp. 91-93.</p> <p>Same. — Teaching Music. — Direction by Trustee. — Pleading.—An averment in a complaint in an action against a school township for the value of certain music charts, to the effect that the trustee placed the charts in the public schools of the township for the purpose of being used, where they still remain, and have ever since been used by the pupils, is equivalent to stating that the trustee directed that music be taught, pp. 93, 94.</p> <p>Same. — Trustee.—Purchase of Music Charts. — School trustees have authority under §5920 Burns 1901 to purchase music charts for the use of the schools of their townships without the approval of the board of education, pp. 94, 95.</p>

<p>From Huntington Circuit Court; G. W. Watkins, Judge.</p> <p>Action by William C. Schofield and others against the Huntington Manufacturing Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>'Wills. — Construction.—Life Estate. — Power to Charge with Support.— A testator devised certain real estate to his wife ‘ ‘ to have and to hold during her life,” and by the terms of the will empowered her to sell all the real estate except the “home farm,” and appropriate the same to her support. Held, that the widow received only a life estate in the home farm, and could not, therefore, charge it with a claim for necessary aid and assistance furnished her in her old age.</p>

From Owen Circuit Court; G. W. Grubbs, Judge. Action by A. C. Ayres against S. M. Blevins and others on promissory notes given in settlement for a stone crusher. From a judgment for defendants, plaintiff ap.peals.

<p>From Decatur Circuit Court; F. T. Hord, Judge.</p> <p>Action by W. R. Noah and others against V. N. Carr.. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Fountain Circuit Court; J. V. Kent, Special Judge.</p> <p>Action by Samuel Buffey against the Indiana Bituminous Coal Company for personal injuries. From a judgment for plaintiff, defendant appeals.</p>

From Porter Circuit Court; J. II. Gillett, Judge. Action for damages for personal injuries by Henry Harmon against the Famous Manufacturing Company. From a judgment for plaintiff, defendant appeals.

<p>Erom Allen Superior Court; W. J. Vesey, Judge.</p> <p>Action by Maumee School Township against School Town of Shirley City and others. Prom a judgment for plaintiff, defendants appeal.</p>

From Clay Circuit Court; 8. M. McGregor, Judge. Action by William Holliday against George W. Miller and others for partition and to quiet title. From a judgment for defendants, plaintiff appeals.

From Decatur Circuit Court; W. O. Barnard, Special Judge. Action by Charles Zoller, Jr., and others to enjoin the city of Greensburg from collecting assessments for local improvements. From a judgment for plaintiffs, defendants appeal.

From Jay Circuit Court; J. M. Smith, Judge. Suit by Jennie Morgan against Green Street to quiet title. Defendant filed cross-complaint to foreclose mortgage. From a judgment for defendant on cross-complaint, plaintiff appeals.

<p>Erom Marion Superior Court; J. M. Leathers, Judge.</p> <p>Action by Frederick Marchal against the Indianapolis Street Railway Company for damages. Erom a judgment for defendant on demurrer to complaint, plaintiff appeals.</p>

<p>From Marshall Circuit Court; A. C. Capron, Judge.</p> <p>Action by Charles C. Yink against Charles L. Alleman for rent. From a judgment for defendant, plaintiff appeals.</p>

Prom Warren Circuit Court; J. M. Babb, Judge. Action by Jennie A. Bonner and others against Bonnie Bonner and others to quiet title to real estate. Prom a judgment for plaintiffs, defendant Bonnie Bonner appeals.

From Marion Superior Court'; J. M. Leathers, Judge. Action for damages for personal injuries by Pansy S. O’Brien against the Van Camp Hardware and Iron Company. From a judgment for plaintiff, defendant appeals.

<p>Costs. — Former Suit. — Vexation. Where a former action for same cause was dismissed and costs remain unpaid, the second action will he deemed to he vexatious until the inference is removed by plaintiff, the slightest countervailing evidence being sufficient to remove the presumption of vexation, p. 16%.</p> <p>Same. — Former Suit. — Stay of Proceedings. — Where a suit is brought in which the costs of a former suit, for the same cause, dismissed by plaintiff, remain unpaid, the proper practice is to move to stay the proceedings until the costs of the former case are paid. p. 16%.</p> <p>Same. — Former Suit. — Plea in Abatement. — Practice.—A plea in abatement by defendant because of the non-payment of - costs in a former suit for the same cause will be regarded as a motion to stay the proceedings, p. 16%.</p>

<p>Railroads. — Injury at Crossing. — Signal Bells. — Where a railroad company maintained signal bells at a crossing for the purpose of ■warning travelers of approaching trains, a traveler approaching the crossing had the right to presume that ho train or locomotive was approaching when the bells did not ring, but he was not thereby excused from ascertaining for himself whether a train or locomotive was in fact approaching, p. 167.</p> <p>Same. — Injury at Crossing. — Signal Bells. — Where in an action against a railroad company for injuries sustained at a crossing it was shown that defendant maintained signal bells at the crossing which did not ring when decedent attempted to cross the tracks, such failure was a circumstance to be considered by the jury in determining the ultimate question of negligence, p. 167.</p> <p>Same. — Injury at Crossing. — Verdict.—Special Finding. — Where plaintiff’s decedent while attempting to cross three parallel railroad tracks was struck by a car on the third track and killed, an answer to an interrogatory that there was no evidence that after crossing the first track he looked or listened for the approach of a locomotive or train is an admission that the finding in the general verdict that he did look and listen had no evidence to sustain it. pp. 167, 168.</p>

<p>Mo.net Paid. — Deeds.—Consideration.—Mortgages.—Payment by Grantor. —Where a grantor conveyed real estate to her daughter conditioned that the grantee should pay as a consideration therefor, after the death of grantor, certain specified amounts to grantor’s children, and one-half of a certain mortgage existing on the real estate, but grantor paid the mortgage before her death, it will be presumed, in the absence of any'showing to the contrary, that she intended that the grantee should be released from the payment of that part of the consideration.</p>

From Marshall Circuit Court; A. C. Capron, Judge. Pétition by John Sills and others for the distribution of the estate of Pachel Sills, deceased. From a judgment in favor of petitioners, Harley A. Logan, administrator, appeals.

<p>Highways. — Petition to Establish. — Jurisdiction of County Commissioners. — In proceedings to establish a highway, under §6742 Burns 1901, the board of commissioners has no jurisdiction unless the petition is signed by at least twelve freeholders of the county, six of whom reside in the immediate neighborhood of the proposed highway, p. 176.</p> <p>Same. — Petition to Establish Highway. — Amendment.—The board of county commissioners has power to allow amendments to petitions to locate a highway, p. 176.</p> <p>Pleading. — Amendment of Answer. — Courts are more liberal in permitting amendments to answers than to complaints, p. 176. Same. — Complaint.—Amendment.—One test by which to determine whether or not a new cause of action is alleged by an amended complaint is to inquire whether the same evidence would support the original and amended complaint, p. 177.</p> <p>Highways. — Location of.' — Amendment of Petition. — “Where the petition for the location of a highway was filed after due notice as required by statute, and subsequently an amended petition was filed materially changing the length of the proposed highway, no new notice being given, the board of commissioners had no jurisdiction to determine the matters set forth in the amended petition, since such amended petition was equivalent to a new proceeding. pp. 177, 178.</p>

From Gibson Circuit Court; O. M. Welborn, Judge. Action by Paul S. Brownlee and others against John B. Hall for damages for the conversion of a legacy. From a judgment for plaintiffs, defendant appeals.

Pending an appeal by tbe Baltimore & Ohio Railroad Company and the Baltimore & Ohio & Chicago Railroad Company from a judgment by the DeKalb Circuit Court granting the Wabash Railroad Company a crossing at grade over the tracks of the former, the appellants made application for an injunction pendente lite;

<p>Master and Servant. — Railroads.-—Overhead, Obstructions. — The danger from the branches of trees which a railroad company permits to hang over its tracks so low that they come in contact with employes while engaged in their duties on the tops of its cars is not a danger incident to the service, pp. 193, 194.</p> <p>Same. — Railroads.—Overhead Obstructions. — A railroad employe whose duties require him to go upon the tops of the cars has the right to assume that the company will not permit a.dangerous obstruction to remain above its tracks, p. 194.</p> <p>Same. — Railroads.—Removal of Overhanging Limbs. — Where the removal of overhanging limbs of trees is necessary to provide a reasonably safe place for the trainmen of a railroad company to work, it is not only the right but the duty of the company to remove such overhanging limbs, p. 195.</p> <p>Contributory Negligenoe. — Circumstantial Evidence. —Freedom from contributory negligence, like any other disputed fact, may be proved by circumstantial evidence, p. 196.</p> <p>Railroads. — Overhead Obstructions. — Evidence.—A finding of the jury that plaintiff’s intestate was knocked from the top of a car by the limbs of a tree was justified by evidence which showed that decedent was a careful, competent and experienced railroad conductor ; that at the time of the accident he was in a proper place in the performance of his duty; that he had not at any time been warned of the existence of the danger; that he was seen to leave the caboose with his lantern; that a witness saw the motion of a man’s arms, and saw the branches of a tree moving, and saw the lantern fall, and another witness saw decedent fall from the top of the car at a place consistent with the theory that the overhanging tree branches caused him to fall. pp. 196-198.</p> <p>Same.- — Death of Employe Caused by Overhanging Dimbs. — Due Care.— A sober, careful and experienced railroad conductor while in the line of his duty was knocked off the top of a freight car by overhanging limbs of a tree and killed. The overhanging limbs were not such an obstruction as was at all times apparent to persons on the top of the cars and decedent did not know and while acting as conductor did not have reasonable opportunity to learn of the dangerous character of the obstruction. Held, that the jury properly found that decedent was exercising due care at the time he was killed, p. 198.</p> <p>Master and Servant. — Due Care. — Evidence.-—In an action for the death of an employe, it is proper to consider, on the question of due care, that the decedent was a sober, industrious and experienced employe, p. 199.</p> <p>Contributory Negligence. — Evidence.—Slight positive testimony, whether circumstantial or otherwise, when taken in connection with the instincts of self preservation, and the desire to avoid pain and injury to oneself, may be sufficient to support a conclusion that one who suffers injury did not help to bring it upon himself, p. 200.</p> <p>Master and Servant. — Overhead Obstructions. — Assumption of Risk.— In an action against a railroad company for the death of an employe caused by an overhead obstruction, in the nature of overhanging limbs of a tree, it was for the jury to determine from all the circumstances of the case whether or not such employe assumed the risk of injury from such obstruction, pp. SOI, SOS.</p> <p>Same. — Assumption of Risk. — Instructions.—In an action against a railroad company for negligently causing the death of an employe, an instruction which did not purport to state all the material facts was not erroneous because.of the omission of the element of decedent’s duty respecting open and obvious risks, where the omission was fully covered by other instructions, pp. SOS, SOS.</p> <p>Master and Servant. — Assumption of Risk. — Equal Knowledge. — The principle that the law will not permit a servant to recover from his master for an injury resulting on account of a dangerous defect in the service can only apply where the servant is under the same obligation as the master to know-the condition of the service, p. 203.</p> <p>Same.- — Measure of Damages. — Evidence.—-In an action for the death of an employe caused by the negligence of the employer, evidence as to the character of decedent for sobriety and industry is competent on the question of damages, p. 20f.</p> <p>Same. — Knowledge of Danger. — Evidence:—Although no legal obligation rested upon a railroad company to erect and maintain warners on either side of a tree the limbs of which overhung the track, and the failure to do so was not negligence, yet, in an action against the company for the death of a conductor caused by such obstruc- • tion, evidence that warners had not been erected was admissible as tending to show that decedent did not know of the obstruction and had not been warned of the danger, p. 205.</p> <p>Same. — Railroads.—Obstruction of Track. — Evidence.—It appearing that defendant had allowed the limbs of a tree to obstruct its track for a period of a year prior to the death of an employe caused thereby, evidence that deceased had never been notified of the obstruction was admissible, since the existence of the obstruction for so long a time charged defendant company with notice thereof, and with the duty of informing its employes of the danger therefrom. p. 205.</p> <p>Same. — Death of Employe Caused by Overhanging Limbs of Tree.- — Evidence. — In an action against a railroad company for the death of an employe who was 'knocked from defendant’s train by the overhanging limbs of a tree, one of defendant’s witnesses testified on cross-examination that after the accident he picked up some small branches underneath the overhanging limbs, and that his reason for picking .them up was that he did not know but that they might be needed as evidence. Held, that it was not reversible error to permit the witness, on further cross-examination, to be asked whether at the time he did not think there might be some connection between the broken branches and the injuries to decedent, pp. 205, 206.</p>

<p>From Tippecanoe Superior Court; W. D. Wallace, Judge.</p> <p>Action by Edith Treschman against Lena Treschman for damages for an assault. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Mortgages. — Principal and Surety. — Husband and Wife. — Tenants by Entireties. — Estoppel.—Under §348, Bums 1901, providing that no objection taken by demurrer and overruled shall be sufficient to reverse the judgment if it appears from the whole record that the merits of the cause have been fairly determined, a judgment foreclosing a mortgage executed by a husband and wife on real estate held by them as tenants by entireties, in which the wife set up the plea of suretyship, will not be reversed because of the failure of plaintiff’s reply, pleading an estoppel on the part of the wife, to state that he believed the representations made by the wife that the money borrowed was for the joint use and benefit of herself and husband and their joint property, and that he acted upon such representations and belief in making the loan, where the facts specially found by the court fully established an estoppel.</p>

<p>Bills and Notes. — Pleading.—A complaint in an action on a promissory note is not bad as against demurrer for want of facts because of its failure to allege the execution of the note, and that it was given for value, where it is alleged that defendant by his certain promissory note, made part of the complaint, promised to pay plaintiff a named sum, and the note itself recites that it is given for value received, p. 228.</p> <p>Bills and Notes. — Execution of Note. — Evidence.—Where in an action. on a promissory note the defendant does not deny under oath the execution of the note, no proof of execution is necessary other than the note itself, p. %28.</p>

From Marshall Circuit Court; A. G. Capron, Judge. Action hy William Zehner against the Terre Haute and Indianapolis Railroad Company, for damages for destruction of water power. From a judgment for plaintiff, defendant appeals.

From Shelby Circuit Court; Douglas Morris, Judge. Action by State on the relation of Frank B. Remo against James E. Golding and others for-damages on a bond given for sale of intoxicating liquors. From a judgment for defendants on demurrer to complaint, relator appeals.

From Delaware Circuit Court; J. G. Leffler, Judge. Action by Hibbert B. Masters against Samuel P. Anthony on a judgment obtained against the latter in the state of Florida, and assigned to plaintiff. From a judgment in favor of plaintiff’, defendant appeals.

<p>Evidence. — Letters.—No error was committed in refusing to admit in evidence in the trial of a bastardy proceeding a letter purporting to have been written by relatrix to defendant, where relatrix testified that she did not write it, and it was not shown that it was received in due course of mail or that it was genuine.</p>

<p>Estoppel. — Husband and Wife. — Mortgage.—Partition.—Where a husband joined his wife in the execution of a mortgage for the purchase money of her real estate, and was present at a sale thereof by her administrator to discharge the debt, and heard the announcement made that all of the land would be sold, and stood by without objection and saw all of the land sold for a sum insufficient to satisfy the debt, ho will be estopped to claim a one-third interest in the land as against the purchaser who was ignorant of any claim or right of the husband in the land and was deceived by his conduct.</p>

From Huntington Circuit Court; G. W. Watkins, Judge. Action by the Indiana Mutual Building and Loan Association against Mary B. Plank and husband to foreclose a mortgage. From a judgment for plaintiff, defendants appeal.

<p>Bills and Notes. — Negotiability Destroyed. — The negotiability of a promissory note is destroyed by a clause therein “that without notice the payee or holder may extend the time of payment of the principal.” p. 269.</p> <p>Same. — Assignment.—Defenses.—Notice.—The right to defend against a note in the hands of a third person under §277 Burns 1901 is limited to defenses existing at the time or before notice of the assignment, pp. 269, 270.</p> <p>Same. — Indorsement.—Presumption.—Where a note is indorsed in blank, without date, it will be presumed that the transfer was made on the date of the note. p. 270.</p> <p>Same. — Defenses.—Pleading.—Where the maker of a promissory note sets up a defense against the note in the hands of an assignee, the burden rests upon him to show by his pleadings that it was acquired before notice of the assignment, p. 270.</p> <p>Same. — Assignment.—Contract Between Original Payee and Makers.— Where the original payee of a promissory note entered into a contract with the makers after assignment of the note, and notice thereof to makers, extending the time of a guaranty of the consideration, the rights of the assignee are not affected thereby. pp. 271, 272.</p>

Prom Hancock Circuit Court; C. G. Offutt, Judge. Action by 'Nancy J. Collyer, administratrix of tbe estate of Mary Caldwell, deceased, against Benjamin H. Cook, administrator of tbe estate of ¥m. G. Caldwell, deceased, for the possession of certain notes claimed to be assets of the estate of plaintiff’s decedent. Prom a judgment giving each estate one-half thereof, plaintiff appeals.

From Elkhart Circuit Court; H. D. Wilson, Judge. Action by Guy C. Johnson and others against Mary S. Sherwood for breach of covenant of warranty. From a judgment in favor of plaintiffs, defendant appeals.

<p>Appeal. — Justices of the Peace. — Jurisdiction.—An appeal from a judgment of §185 is not prohibited by the act of 1901 (Acts 1901, p. 566), providing that no appeal shall he taken to the Supreme or Appellate Court in any civil case within the jurisdiction of a justice of the peace, where the amount demanded, as well as the amount shown hy the facts pleaded to be due, was in excess of §200, and equitable relief was sought.</p>

From the Hendricks Circuit Court; T. J. Gofer, Judge. Action by the State on the relation of the School Commissioners of the city of Indianapolis on the bond of Samuel A. Hogue, treasurer of the Board of School Trustees of West Indianapolis. From a judgment in favor of relator, defendants appeal.

From Whitley Circuit Court; J. W. Adair, Judge. Action by John Butts against the Lake Shore & Michigan Southern Railway Company for personal injuries at a railroad crossing. From a judgment for plaintiff, defendant appeals.

From Montgomery Circuit Court; J. V. Kent, Special Judge. Action by Samuel Hutton and others against Xelson Cunningham and others to enforce a trust in certain lands. From a judgment for defendants, plaintiffs appeal.

From Allen Superior Court; E. O’Rourke, Special Judge. Action by John Ferguson and others against Charles Pape for damages for breach of contract to furnish lumber and logs. From a judgment for plaintiffs, defendant appeals.

From Floyd Circuit Court; W. G. TJtz, Judge. Action by David-M. Kepley and another, executors of tbe will of Philip M. Kepley, deceased, against Martha E. Hawes and others for the construction of a will. From a judgment for plaintiffs, defendants appeal.

From Jay Circuit pourt; J. M. Smith, Judge. Action by Abraham Shewalter, administrator of the estate of Mary A. Farmer, deceased, against the Hamilton Oil Company for the recovery of rent on an oil and gas lease. Erom a judgment for defendant, plaintifi appeals.

From Blackford Circuit Court; JE. C. Vaughn, Judge. Action by James M. Sutton against the School City of' Montpelier for the collection of an assessment for the improvement of a street. From a judgment for defendant, plaintiff’ appeals.

From Marion Superior Court; L. M. Harvey, Judge. Suit by the Board of Church Extension of the United Presbyterian Church against the city of Indianapolis and others to quiet title to real estate. From a judgment for plaintiff, defendants appeal.

From Johnson Circuit Court; K. M. Hjord, Special Judge. Suit by Joseph White as guardian against William C. Tucker and others to quiet title to wards’ real estate. From a judgment in favor of plaintiff, defendants appeal.

From Adams Circuit Court; JD. D. Heller, Judge. Dore B. Erwin as administrator of the estate of John Laughery filed exceptions to the report of Robert S. Peterson as guardian of the decedent, who was a person of unsound mind. Erom a judgment sustaining the exceptions in part, the guardian appeals.

Erom Rush Circuit Court; L. H. Stanford, Special Judge. Action by the State on the relation of Andrew C. Brown, administrator de bonis non of the estate of Thomas W. Hilligos, deceased, against William A. Cullen and others, sureties on the bond of Henry Ormes, administrator of such estate. Erom a judgment in favor of plaintiff, defendants appeal.

<p>.Bills and Notes. — Fraud.—A owned a tract of land on which, there was an invalid tax lien; B, knowing the invalidity of the lien, entered into a contract to clear the title in consideration of $2,700; A executed her note to B for such sum secured by mortgage on the land, and B assigned the note to O who assumed the performance of the services. D conveyed certain lands to A, receiving a deed to the lands mortgaged, A agreeing to convey the same to B and O when they paid to her $7,000, and accounted to her for the $2,700; D assumed the payment of the $2,700 note conditioned that A should give him a mortgage on the land he conveyed to her, which she did, ignorant of the invalidity of the tax lien and induced by fraudulent statements made by B and O. B and O afterward paid D’s note and caused it to be transferred to E who took it with knowledge of all the facts, and sought to enforce the collection thereof. Held, that the note was without consideration.</p>

From Howard Circuit Court; W. W. Mount, Judge. Action by Lawrence Simpson against the Pittsburgh Plate Glass Company for the recovery of rent on a natural gas and oil lease and to restrain defendant from cutting off plaintiff’s supply of gas. From a judgment sustaining demurrer to complaint, plaintiff appeals.

<p>Schools. — Contract with Teacher. — False Representations. — Fraud.—In an action by a school teacher on a contract of employment with a township trustee which was rescinded by the trustee because of false representations of the teacher -that she was an unmarried wcinian, evidence that plaintiff was not married at the time she sought employment and represented to the trustee that she did not intend to be married during the school year, and that at the time she signed the contract she was married, but signed it in her maiden name, without disclosing to the trustee the fact of her marriage, will not support a verdict-for plaintiff, pp. 856-358.</p> <p>Contracts. — Fraud.—Schools.—The principle that fraud cannot be predicated upon acts which the party charged has a right by law to do, nor upon the non-performance of acts which by law he is not bound to do, does not apply where one, for a consideration, agrees not to do what under the law, hut for the agreement, he would have the right* to do. p. 358.</p> <p>Same. — Schools.—Contract Conditioned that Teacher Should Remain Unmarried. — Although a promise to do an act in the future which the promisor has no intention of fulfilling is not fraud, a contract-made with a teacher to teach school conditioned that she will remain unmarried during the school term may be rescinded upon the breach of such condition, p. SSS.</p>

<p>.Appeal and Error. — Transfer of Came. — Where a cause was affirmed by the Appellate Oourt, upon the authority of a decision of the Supreme Court, without written reason, under the act of 1901 (Acts 1901, p. 565, §1337q Burns 1901), the cause will not be transferred to the Supreme Court on a petition for a rehearing raising the question of the constitutionality of the act of 1901 permitting the affirmance of causes by the Appellate Court without written reason.</p>

<p>From Knox Circuit Court; B. M. Willoughby, Special Judge.</p> <p>Action by Alexander L. Hays against Albert Mussel-man and others on a promissory note. From a judgment for plaintiff, defendants appeal.</p>

From Dearborn Circuit Court; G. E. Downey, Special Judge. Action by Martin Goble against the Ohio Valley Coffin Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.

From Grant Circuit Court; J. L. Custer, Judge. 'Suit by Charlotte Marley and others against the National Building, Loan and Savings Association No. 2 to cancel a bond and mortgage. From a judgment for defendant, plaintiffs appeal. •

From Montgomery Circuit Court; Jere West, Judge. Action between Elizabeth Miller and George W. White and others on appeal from a survey. From a judgment confirming the survey, Elizabeth Miller appeals.

<p>Wills.' — Descant and Distribution. — Whore real estate is given absolutely to one person with a gift over to another of such portion as may remain undisposed of by the first taker on Ms death, without issue, the gift over is void, and the fee simple title vests in the first taker.</p>

<p>DrvoRCE. — Allowance.—New Trial. — Appeal and Error. — The granting of an allowance to the wife under § 1054 Burns 1901 in a suit for divorce is not a cause for a new trial, but is the subject of an independent assignment of error on appeal, p. 879.</p> <p>'New Trial. — Appeal and Error. — The ruling of the court on a question affecting its jurisdiction is not a cause for a new trial, p. 880.</p> <p>Divorce. — Affidavit as to Residence. — Complaint.—A complaint for divorce properly sworn to, containing also the matter required by § 1048 Burns 1901 in an affidavit as to the residence of the plaintiff may serve the purpose of a complaint and the required affidavit as to residence, pp. 880-382.</p> <p>Same. — Allowance to Wife. — Abuse of Discretion. — Appeal and Error.— To warrant the reversal of a judgment for divorce on account of the abuse of discretion of the court in making an allowance to the wife pending the litigation, the abuse of discretion must clearly appear, p. 382.</p> <p>Tbial. — Separation of Witnesses. — Disobedience of Order of Court.— Appeal and Error. — Available error cannot be predicated upon the action of the court in permitting a witness to testify who was present during the trial and listened to the testimony of other witnesses, after an order had been made for a separation of the witnesses, where it is not shown that the party in whose favor he testified was responsible for the disobedience of the order of the court, pp. 38%, 388.</p> <p>Same. — Evidence.—Admission after Argument. — A cause will not be reversed because of the action of the court in admitting evidence of the residence of plaintiff, and other testimony,\in a divorce proceeding, after the argument of counsel, where the court gave defendant the opportunity to rebut any of the testimony given. p. 383.</p>

<p>From Jasper Circuit Court; R. S. Dwiggins, Special Judge.</p> <p>Suit by George ~W. Peters against Cyrus Y. Jones and others to quiet title. From a .judgment for plaintiff, defendants appeal.</p>

From Marshall Circuit Court; T. E. Howard, Special Judge. Suit by Elsie W. Fromm and others against John IJ. Lawrence and others, for the possession of real estate. From a judgment for defendants, plaintiffs appeal.

<p>Adverse Possession. — Quieting Title. — Plaintiff’s grantor purchased the east twenty feet of a lot, on which lot two houses had been built by the owner and a fence put up between them, which at the south end was on the true line, but at the north end was three feet and eleven inches west of the true line. There was a barn on the north end of the west part of the lot, the east side of the bam being up to the fence in question. Plaintiff and his grantor occupied the inclosure including the strip of ground in dispute for more than twenty years, without question, exercising those acts of ownership usually practiced by owners of such land, and using it for the purpose to which it was adapted. Held, that the possession was adverse and amounted to a grant.</p>

From Marshall Circuit Court; S. Parker, Special Judge. Suit by Samuel Jack and’ others against William R. White to quiet title. From a judgment for defendant on cross-complaint, plaintiffs appeal.

Prom Howard Circuit Court; W. W. Mount, Judge. Action by Susan E. Logan upon a claim against Ruth J. Crampton and others, administrators of the estate of Isaac Crane, deceased, for services as housekeeper. Prom a judgment for plaintiff, defendants appeal.

Prom Greene Circuit Court; W. W. Moffett, Judge. Action by John O. Heaton against Joseph W. Stone-for commission for the sale of timber. Prom a judgment, for plaintiff, defendant appeals.

From Marion Superior Court; Vinson Garter, Judge. Action by Daniel Foley against the New Telephone Company on a contract for the repair of a street. From a judgment for plaintiff, defendant appeals.

From Monroe Circuit Court; W. II. Martin, Judge. Action by Ancil Adams against the Western Union Telegraph Company for damages resulting from delay in delivering a telegraph message. Plaintiff died after the rendition of a judgment in his favor and the defendant appealed, Mary E. Adams, plaintiff’s ' administratrix being substituted as appellee.

From Vanderburgh Superior Court; J. H. Foster, Judge. Action by the New York Life Insurance Company to determine to whom.it should pay the proceeds of an insurance policy. To such proceeding W. M. Blakey and J. E. Williamson intervened, claiming an equitable interest in the policy for attorney fees. From a judgment against them, they appeal.

From Lake Superior Court; H. B. Tuthill, Judge. Action by Harry L. McQoy against George McCoy and others upon an account aud for the appointment of a receiver. From a judgment denying the claims of Henry Schrage and others to an interest in funds in the hands of the receiver, the claimants appeal.

<p>Insurance. — Employers Liability Insurance. — Notice of Inability.— Immediate Notice.- — The word “immediate” as used iu an employer’s liability policy providing that the employer shall not incur any expense without the consent of the insurer, but “if an accident is sufficiently serious to necessitate immediate medical assistance, the same may be rendered at the cost of the corporation, who will not, however, pay the cost for any subsequent medical aid, unless previously authorized by them, ” means within a reasonable time, and such time could in no event extend beyond the period within which the notice of the accident was or should have been forwarded and such further interval as might have - been necessary to enable the insurance company to act therein. 'pp. 438-443.</p> <p>Insurance.' — Employers Liability Insurance. — Medical Assistance. — Living Expenses. — A provision in a policy of an employer’s liability company giving the insured the right to render immediate medical assistance to an injured employe at the expense of the insurer does not include living expenses of the employe, p. 443.</p>

Prom Johnson Circuit Court; W. J. Buckingham, Judge. Action by John C. Springer, administrator, against San Francisco Calvin and others for the construction of a will. From the judgment of the court, defendants appeal.

<p>Appeal and Error. — Assignment of Errors. — Parties.—Executors and Administrators. — The rule that the assignment of errors shall contain the full names of the parties requires that the names of the administrators of an estate shall be set out in the assignment of errors in an appeal from a judgment in an action on a claim against a decedent’s estate.</p>

<p>From Randolph Circuit Court; A. O. Marsh, Judge.</p> <p>Action by Laura B. Hancock against Daniel S. Wiggins and John T. Burroughs. From a judgment for defendants on demurrer to complaint, plaintiff appeals.</p>

From Clark Circuit Court; W. G. Utz, Special Judge- Action by James R. Kelly against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company and the city of Jeffersonville for damages for the overflow of' land. From a judgment for defendants, on demurrer to complaint, plaintiff appeals.

<p>From Orange Circuit Court; D. M. Alspaugh, Judge.</p> <p>Action by Byron E. Martin against tbe Chicago, Indianapolis and Louisville Railway Company for damages. From a judgment for plaintiff, defendant appeals.</p>

From Martin Circuit Court; M. 8. Hastings, Special ■Judge. Action by John W. Heaton, assignee of the JenkinsHeaton Lumber Company, against Benjamin C. Johnson, ■surviving partner of the firm of Johnson & Chenowith, for the enforcement of a contract. Prom a judgment for plaintiff, defendant appeals.

From Warrick Circuit Court; E. M. Swan, Judge. Action by Henry Fenlner, by next friend, against tbe Buehner Chair Company for personal injuries. From a judgment for plaintiff, defendant appeals.

Prom Madison Superior Court; II. C. Ryan, Judge. Action by Patrick O’Brien and others against James M. Bradley and others to quiet title. Prom a judgment, for defendants, plaintiffs appeal.

<p>From Grant Superior Court; Hiram Brownlee, Judge,</p> <p>Action by Robert Andrews against-the Mississinewa, Mining Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Quieting Title. — Railroads.—Streets.-—Highways.—Municipal Corporations. — A complaint in an action by a railroad company against a city to quiet title to a strip of land which defendant city claimed as a street is not defective in failing to show that there was no-public highway across the strip of ground in dispute, where the complaint alleged that there has never been any street or highway laid out over the strip of ground, that neither the defendant nor the public ever occupied or used the strip of ground for highway purposes and averred generally the non-existence of a highway at the place in question, pp. 498-501.</p> <p>Same.- — Pleading.—In an action to quiet title it is sufficient to aver in the complaint that plaintiff is the owner of the real estate, without specifically averring the kind of title, or how derived, and that the claim of defendant is unfounded and a cloud upon plaintiff’s title, p. 501.</p> <p>Appeal and Error. — Evidence.—Marginal Notes. — Court Rules. — The Appellate Court will not consider the evidence on appeal consisting of more than BOO pages, where no marginal notes are made as required by the rules of the court, p. 503.</p>

<p>Deeds. — Delivery.—Where one executes a deed and delivers it to a third person to hold until the death of the grantor, parting with all dominion over it, and reserving no right to recall it, the delivery is effectual; hut where the grantor reserves the right to recall such deed at his pleasure, there is no delivery.</p>

From Lake Circuit Court; C. N. Morton-, Special Judge. Action by Homer L. Iddings, township trustee, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company for damages to a highway of the township from fire escaping from the railroad right of way. From a judgment for plaintiff, defendant appeals.

<p>Negligence. — Contributory Negligence. — Pleading.—A complaint in an action against a natural gas company for personal injuries caused hy the escape of gas from defendant’s pipes is not had for failure to allege freedom from contributory fault on the part of plaintiff, where it does not appear hy specific averments of the complaint that plaintiff was guilty of negligence.</p>

<p>From Delaware Circuit. Court; A. O. Marsh, Special Judge.</p> <p>Action by the Union Central Life Insurance Company against Albert W. Evans and others on a ■ promissory note. From a judgment for defendants, plaintiff appeals.</p>

From Lawrence Circuit Court; Newton Crooke, Special Judge. Action by Joel L. Hobbs, administrator, on a judgment against tbe Salem-Bedford Stone Company and others pending an appeal from such judgment to the Appellate Court. From a judgment for plaintiff, defendants appeal-

From Knox Circuit Court; G. W. Shaw, Judge. Action by F. A. Tbuis, administrator, against the city of Vincennes for damages for death of Theodore Thuis resulting from the alleged negligence of defendant. From a judgment for plaintiff, defendant appeals.

Erom Monroe Circuit Court; W. II. Martin', Judge. Action by the State on the relation of Arthur Webb against John S. Stockwell, guardian, and others as sureties on his bond. Erom a judgment in favor of defendants, relator appeals.

From Newton Circuit Court; 8. P. Thompson, Judge. Action ■ in replevin by John W. Tanner and others against John DeJong and the Mishawaka Woolen Manufacturing Company. From a judgment for the Mishawaka Woolen Manufacturing Company on its cross-complaint, plaintiffs appeal.

From Jay Circuit Court; J. M. Smith, Judge. Action by William A. Nichols against Adelma Lupton and others for money paid. Adelma Lupton died pend-' ing suit, and Ambrose Gh Lupton and another, executors, were substituted as defendants. From a judgment for plaintiff, the defendant executors appeal.

<p>From Marion Superior Court; J. L. McMaster, Judge.</p> <p>Action by Olive Ott against August Aldag for damages on account of personal injuries. From a judgment for plaintiff, defendant appeals.</p>

Prom Clark Circuit Court; J. K. Marsh, Judge. Action by William Sims against the Baltimore and Ohio Southwestern Railway Company for injuries received while a passenger. Prom a judgment for plaintiff, defendant appeals.

<p>Mortgages. — Deed Absolute in Form. ■— Conveyance by Mortgagee. — Where a mortgagee, to whom mortgaged real estate has been conveyed on an understanding that the mortgagor might redeem within the year, conveys the real estate within the year of redemption to an innocent purchaser, an action will lie to recover the difference between the value of the property and the amount of the mortgage debt; but where the person to whom the property was conveyed had full notice and knowledge of the agreement, no title was thereby conveyed, and the proper remedy was an action to quiet title, pp. 549-664.</p> <p>Mortgages.' — Conditional Sale. — Deeds.—An agreement whereby a mortgagor conveyed the mortgaged real estate to the mortgagee by deed absolute upon its face, tlie mortgagor to have the right to have the real estate reconveyed to her upon the payment of the - mortgage debt within a year, did not'constitute a conditional sale. pp. 554, 555.</p>

From the Wells Circuit Court; J. W. Headington, Special Judge. Suit by Lemuel Heller against Michael Dailey and others to enforce the covenants of an oil and gas lease. From a decree for defendants, plaintiff appeals.

From Marion Superior Court; Vinson Garter, Judge. Suit by Mary J. Wagner against Rebecca S. Carskadon and others for partition of real estate. From a decree for defendants, plaintiff appeals.

<p>Prom Allen Superior Court; W. J. Vesey, Judge.</p> <p>Action by Bertha Timmons against Henry Roehrs for damages. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Blackford Circuit Court; Levi Mock, Special Judge.</p> <p>Action by Darius Lillard and others against Charles F. Mather and others. From a judgment for defendants, plaintiffs appeal.</p>

From Marion Superior Court; J. M. Leathers, Judge. Action by Margaret E. Crans against the city of Indianapolis for damages on account of personal injuries sustained because of a defective street. From a judgment for plaintiff, defendant appeals.

<p>From Cass Circuit Court; JD. H. Chase, Judge.</p> <p>Action by Samuel Gray against tbe Pittsburgh, Cincin nati, Chicago and St. Louis Railway Company for damages. From a judgment for plaintiff, defendant appeals.</p>

From Huntington Circuit Court; J. T. Cox, Special Judge. Suit by William Runtle and others against Edsell W. Chamberlain and others to quiet title. From a judgment in favor of plaintiffs, defendants appeal.

<p>Husband and Wit's. — Bills and Notes. — Suretyship.—Coverture.—The defense of coverture under the laws of Indiana cannot be interposed by á married woman in an action against her as surety on a note executed and made payable in Indiana, given to make good the default of the principal on a bond executed in Ohio in which such married woman was surety, since the bond was governed by the laws of Ohio.</p>

From Franklin Circuit Court; F. S. Swift, Judge. Action in replevin by Sophia Gordon against Andrew J. Miller and others to obtain possession of a mill and machinery by virtue of a chattel mortgage. From a judgment for defendants, plaintiff appeals.

From Marion Circuit Court; H. G. Allen, Judge. Action by Jerome D. Wells against the Vermont Life Insurance Company to compel the issuance of a paid-up life policy. From a judgment for defendant, plaintiff appeals.

From Vanderbnrg Superior Court; J. H. Foster, Judge. Motion by Samuel W. Little, assignee of a judgment against Charles A. Koerner and others, for leave to issue execution thereon more than ten years after its rendition. Erom a judgment denying the motion, plaintiff appeals.

<p>From Marion Superior Coui’t; J. L. McMaster, Judge.</p> <p>Action for damages by Nancy E. Reed, as administratrix of John Reed, deceased, against the Citizens Street. Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

From Marion Superior Court; J. L. McMaster, Judge. Action for damages for personal injuries by Samuel Rittenhouse against the Terre Haute and Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals.

<p>Appeal. — Joint Assignment of Error. — An assignment that the court erred in overruling appellant’s several demurrers to each of a number of paragraphs of answer is joint, and presents no question for review if any one of the answers is good. p. 64J.</p> <p>Principal and Surety. — Married Women as Surety. — Form of Contract. —Whether the contract of a married woman binds her as principal or only as surety, and is therefore void, is not to be determined from the form of the contract, but from a determination of the question whether she received the benefit of the consideration on which the contract rested, p. 648.</p> <p>Former Adjudication. — Ruling on Demurrer to Answer Does not Constitute. — Where a cause is disposed of upon a demurrer to an answer, and not upon its merits, it does not constitute a former adjudication. It is only where the matter in issue has either been actually or presumptively denied that the judgment is a bar to another action, p. 650.</p> <p>Appeal. — Bill of Exceptions. — Evidence Not in Record. — Errors arising under the evidence cannot be considered on appeal, where it affirmatively appears from the record that it does not contain all the evidence, even though the bill of exceptions contains the statement that “this was all the evidence given in the cause.” p. 651.</p>

From Wayne Circuit Court; H. G. Fox, Judge. Suit by Martin L. Young and others against Thomas B. Stevens and others for the recovery of money paid as sureties, and to set aside a mortgage as fraudulent against creditors. From a judgment for defendants, plaintiffs appeal.

From Shelby Circuit Court; F. E. Gavin, Special J udge. Action by Andrew C. Bowlby against Mary E. Kline •and others to foreclose a mortgage assigned to him by a building and loan association. From a judgment for defendants, plaintiff appeals.

<p>Brokers. — Commissions.—Sale of Land. — Finding Purchaser. — “Where, under a contract to pay a broker a certain percentage on a stated selling price per acre for certain described land “in case he furnished a purchaser for said property” at such price, the broker obtained a purchaser who agreed to take the land at such price and give in exchange certain personal property, and the landowner examined the personal property, inventoried it, agreed upon its value as being equal to that of the land, and agreed to make the exchange, but subsequently refused to complete the trade, the broker is entitled to the commission, since the contract did not require that the broker should find a purchaser for cash, or that the sale of the land should be actually consummated on some other terms, pp. 666-668.</p> <p>Same. — Commissions.—Pleading.—An answer to a complaint in an action by a real estate broker for commission alleging that the broker did not act in good faith but fraudulently induced the defendant to agree to an exchange of his land for personal property which he knew was not worth as much as defendant’s property is insufficient, where no direct averment of facts showing fraud is made. pp. 668-670.</p>

From Washington Circuit Oourt; D. M. Alspaugh, Judge. Action by Alfred Gullett against Andrew N. Gullett, administrator, to recover for services rendered decedent under promise of decedent to make provision therefor in his will. From a judgment for plaintiff, defendant appeals.

<p>From Marion Criminal Court; Fremont Alford, Judge.</p> <p>Will Nichols was convicted of being an agent for a lottery scheme, and he appeals.</p>

<p>Contracts. — Proper Performance. — Cancelation.—A contract for the building of a schoolhouse, providing that after due notice to the contractor that the work is not progressing rapidly enough, or that the work is not in accordance with the plans and specifications, the contract shall be canceled, does not give the other party to the contract the sole prerogative of deciding whether the work is being properly performed, pp. 682, 683.</p> <p>Same. — Contractor Prevented from Completing Work. — Measure of Damages. — Where a contractor enters into a special contract to build a schoolliouse, and is prevented from completing the work solely by the action of the other party to the contract, the damages, in an action by the contractor, are measured by the contract, and not by the market price, p. 685.</p>

From Hamilton Circuit Court; J. F. Neal, Judge. Action on notes, and to foreclose chattel mortgage, by J. I. Case Threshing Machine Company against Clark Millikan. From a judgment in favor of plaintiff on its complaint, and in favor of defendant on his cross-complaint, plaintiff appeals.

From Delaware Circuit Court; J. G. Leffier, Judge. Suit by John B. Davison against William Campbell, township trustee, and others to caneel an assessment for the repairs of a public ditch. From a judgment for defendants, plaintiff appeals.

From Lawrence Circuit Court; Newton Crooke, Special Judge. Action for damages for personal injuries, by Frank Smallwood against the Bedford Quarries Company. From a judgment for defendant, plaintiff appeals.

From Madison Superior Court; II. C. Ryan, Judge. Action by Patrick O’Brien and others against DanielW. Bush and others to quiet title. From a judgment for defendants, plaintiffs appeal.

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Action by the Union Mutual Building and Loan Association against David A. Coulter and others. From a judgment for defendants, plaintiff appeals.</p>

From Boone Circuit Court; B. S. Higgins, Judge. Action by Charles D. Russell and others against Milton Roush for possession of real estate. From a judgment for plaintiffs, defendant appeals.

From Clay Circuit Court; S. M. McGregor, Judge. Action by Lydia Spurgeon against The Central Iron and Steel Company and others for damages for obstructing a street. From a judgment for defendants, plaintiff appeals.