Volume 31 — Indiana Appellate Court Reports

<p>Trespass. — Title.—Special Finding. — Appeal.—A judgment against a railroad company for damages for wrongfully entering upon plaintiff’s land and removing a fence will not be reversed on the question of ownership of the land, where the special findings upon which the conclusions of law were based showed the record ' title of the land to be in plaintiff, and no facts were stated showing title by adverse possession in defendant, there being evidence to sustain the findings.</p>

<p>Judgment. — Mistake.—Setting Aside. — No error was committed in setting aside a judgment, under §399 Burns 1901 authorizing'the court in its discretion to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, where it appeared that defendant, in an action on a promissory note, left his home on business before the case was set for trial, and left with his family and counsel instructions where he could be reached by mail or telephone, and his counsel wrote him, but he failed to receive the letter, and his daughter telephoned him, and some person representing himself to be defendant answered saying he would be home for the trial, and judgment was taken without defendant’s knowledge that the case was set for trial.</p>

Erom Sullivan Circuit Court; O. B. Harris, Judge. Action by Q-eoi’ge A. Rich, administrator of the estate of Joseph H. Rich, deceased, against the Evansville & Terre Haute Railroad Company. Erom a judgment for defendant on demurrer to complaint, plaintiff appeals.

<p>Pleading. — Amendment.—Where, upon the sustaining of a demurrer to a complaint consisting of a single paragraph, the plaintiff filed “an amended second paragraph of complaint by leave of court first had and obtained,” the complaint filed under such leave will be regarded as an amended complaint, and, being so considered, it must be regarded as an amendment of the complaint originally filed, hence the original no longer constitutes a proper part of the record on appeal, and the error, if any, in sustaining the demurrer, must be treated as waived.</p>

<p>Erom St Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Action by Mary E. Small against Walter Einch. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From the Superior Court of Marion County; J. L. McMaster, Judge.</p> <p>Action by Harry J. Milligan against tlie Equitable Trust Company of New London. From a judgment -for plaintiff, defendant appeals.</p>

Prom Boone Circuit Court; B. S. Higgins, Judge. Suit by Elizabeth Kersey against Samuel J. Utter and others to cancel a deed. From a judgment for plaintiff, defendants appealed and pending the appeal plaintiff died, and her heirs were substituted as appellees.

<p>Erom the Superior Court of Allen County; J. H. Aiken, Judge.</p> <p>Action by James II. Jameson against the Union Life Insurance Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Corporations. — Elections.—Right of Stoclcholder to Vote. — The provision of §3425 Burns 1901, that each stockholder shall have one vote for each share owned and held by him for ten days previous to the meeting of the corporation, and of §5055 Burns 1901, that each share shall entitle the owner to one vote, are not merely directory, but are express reservations from granted powers, securing to the stockholder an important and valuable right, pp. 38-46.</p> <p>Same. — Officers.—Election.—Provisions in the articles of association of a corporation, organized under the statute of this State regulating the organization of manufacturing and mining companies, that the affairs of the association shall always be managed by a certain named board of directors, unless they shall become incapacitated, resign or die, and that certain named persons shall hold the other offices of the company so long as they shall remain shareholders,- unless they shall become, incapacitated, resign or die, are in contravention of the statute providing for the annual election of officers, and are inoperative and void. pp. 88-46.</p>

From St. Joseph Circuit Court; W. A. Funk, Judge. Action by Edward E. Paxson against Edwin E. Dean for damages for wrongful eviction. From a judgment in favor of plaintiff for- mere nominal damages, he appeals.

From Delaware Circuit Court; J. G. Leffler, Judge. Proceeding by the Muncie Natural (3-as Company against William L. Allison and wife to condemn an easement for natural gas pipe-lines. From a judgment of the circuit court awarding defendants damages, plaintiff appeals.

<p>Trial. — Joint Tort Feasors. — Separate Trials. — Where action, is commenced against two persons as joint tort-feasors, the defendants are not entitled to separate trials, although the plaintiff might have elected to sue the defendants, separately, p. 54.</p> <p>False Imprisonment. — Procuring Arrest.— Question of Fact. — In an action for false imprisonment, the question as to whether the defendant procured and directed an unlawful arrest is a question of fact. p. 55.</p> <p>Trial. — Evidence.—Instruction.—Where, in the trial of an action against two defendants, a deposition is read which is not competent evidence against one of the defendants, such defendant has a right to an instruction limiting the deposition to the party against whom it is competent, pp. 55, 56.</p> <p>Evidence. — Deposition Taken Without Notice. — A deposition objected to by one not present when it was taken, and to whom no notice has been given of the intention to take it, is not competent evidence against him. pp. 55, 56.</p> <p>Same. — Deposition taken Without Notice. — The fact that a party not present at the taking of a deposition, and who-had no notice thereof might have introduced it in evidence against those who were parties to it does not affect his right to object to its introduction by them against him. pp. 56, 57.</p> <p>Depositions. — Taken by One of Two Defendants. — One of two defendants can not take depositions by service of a notice upon the sole plaintiff, and thereby bind his codefendant, pp. 56, 57. Evidence. — Depositions.—The evidence delivered by depositions, like other evidence, must be scrutinized, excluded and limited by the court in accordance with the rights of the parties, p. 57.</p> <p>False Imprisonment. — Fardera of Proof.■ — Presumption.—In an action for false imprisonment, the fact that the plaintiff was imprisoned is sufficient to raise the presumption that such imprisonment was illegal, and the burden of establishing the contrary is on the defendant. p. 57.</p>

<p>New Trial. — Causes.—Overruling Demurrer. — The action of the court in overruling a demurrer to the complaint can not properly be made a cause in a motion fer a new trial, p. 58.</p> <p>Appeal and Error. — Overruling Demurrer to Complaint. — New Trial.— The rising of the court on demurrer to a complaint can not be presented on appeal under an assignment thereof in a motion for a new trial, p. 58.</p>

From Carroll Circuit Court; T. F. Palmer, Judge. Proceeding by Charles A. Hornbeck and others for the establishment of a public highway in which Eliza vV. Angelí and others remonstrated. From a judgment of the circuit court establishing the highway, Eliza V. Angelí appeals.

<p>From Ohio Circuit Court; N. S. Givan, Judge.</p> <p>Action by the Aultman Company against Nathan Mc-Cardle and others. From a judgment for plaintiff, defendants appeal.</p>

From the Superior Court of Vanderhurgh County; J. H. Foster, Judge. Action by Mary A. Goelz> executrix of the last will of Mary A. Long, deceased, against the People’s Savings Bank, in which Katharine Long and Joseph Bastian were, upon petition, made defendants. From a judgment for defendants, plaintiff appeals.

Erom Cass Circuit Court; D. H. Chase, Judge. Action by the State on the relation of Catherine Graham against George W. Walters, administrator of the estate of Henry Hubler, deceased, and others. Erom a judgment for defendants, relatrix appeals.

<p>Trial. — Special Finding. — Request.—Waiver.—It is the duty of the court to find the facts specially upon proper request, but the right to a special finding may be waived by the party requesting it after the request is made. p. 84.</p> <p>Same. — Special Finding. — Request.—Waiver.—A request for special findings will be presumed, on appeal, to have been waived, where, without any, objection made or exception taken, the court made a general finding and rendered a decree thereon, p. 84.</p> <p>JüRV. — Right to Jury Trial. — Abatement of Nuisance. — Injunction.—A party is not entitled to a jury triabas of right in a suit to enjoin and abate a nuisance, p. 85.</p> <p>Nuisance. — Evidence.—Harmless Error. — In a suit by tenants who occupied a part of a building as storerooms against a tenant of another part of the building to enjoin and abate a nuisance consisting of a stairway which cut off light and ventilation from plaintiffs’ rooms, and offensive and unhealthful odors created by defendant, there was no reversible error committed in permitting evidence to be introduced as to the rental value of the rooms occupied by plaintiffs if the premises were free from the annoyances about which complaint was made, where mere nominal damages were awarded; nor was defendant harmed by evidence showing the annual volume of business done by plaintiffs, pp. 85, 86.</p> <p>Same. — Evidence.—In a suit by tenants who occupied a part of a building as business rooms against tenants of another part of the building to abate a nuisance created by the latter consisting of an obstructing stairway and certain offensive and unhealthful odors, evidence that these odors were the subject of comment by plaintiffs’ customers was competent as showing the nature and extent of the nuisance complained of, and the effect upon plaintiffs’ business, p. 86.</p> <p>Same. — What Constitutes. — The erection of a stairway by tenants of a building so as to obstruct the rear entrance to rooms occupied by other tenants, and the creation of offensive odors by cooking, and by throwing refuse matter in the alley in the rear of the building, constitute a nuisance within the meaning of §290 Bums 1901. pp. 86, 87.</p> <p>Same. — Mandatory Injunction. — Discretion of Court. — In a suit to abate a nuisance, and for an injunction, a mandatory order that a stairway which obstructed an entrance to plaintiffs’ rooms be removed will not be reversed, where no abuse of discretion is shown, p. 87.</p> <p>Appeal and Error. — Decree Not Sustained by Evidence. — Motion to Modify. — Where any part of a decree is not sustained by the evidence, the remedy is by motion to modify; and where no motion was made to modify, the question can not be reviewed on appeal. pp. 87, 88.</p>

<p>Pleading. — Conversion.—Counterclaim.—In an action for conversion, a counterclaim by defendant, based upon alleged facts in no way connected with the acts of conversion complained of, is properly stricken out. pp. 89, 90.</p> <p>Trial. — Materiality of Evidence a Question of Law. — The question as to whether evidence is material is a question of law, the determination of which, in a civil action, is solely with the court: p. 90.</p>

<p>From Warrick Circuit Court; G. W. Cook,- Special Judge.</p> <p>Suit by Celestia Matthews against Wesley Wilson and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal. — Assignment of Error. — An assignment that “the court erred in rendering judgment” presents no question on appeal, p. 99.</p> <p>Same. — Exception.—Review.—Where an exception is not taken, the ruling of the court can not be successfully attacked on appeal. p. 99. '</p> <p>Railroads. — Injury to Licensee. — Contributory Negligence. — Plaintiff, who was sixty years old and in full posession of his faculties, went to a railroad station to meet a train. After the arrival of the train, and before it pulled out, plaintiff left the depot, walking between the main track and a side-track, which space the public was licensed to use as a footway. The train followed in the same direction and struck plaintiff who was walking too near the track and not looking nor listening for the train at the time. Plaintiff knew the train would proceed in the direction and at the time it ’did, and was familiar with the tracks, crossings, and surroundings. Held, that the plaintiff was guilty of contributory negligence. pp. 100-102.</p> <p>Trial. — Verdict.—Special Findings. — Conflict.—When the special finding of facts is irreconcilably in conflict with the general verdict, the former must control, p. 101.</p>

<p>Railroads. — Fires Escaping from Right of Way. — Damages to Land not Contiguous. — Complaint.—A complaint against a railroad company for damages from fire to land not contiguous to defendant’s right of way need not aver that the fire was negligently permitted to escape from the intervening land, where it contains the allegation that the fire was negligently permitted to escape from the right of way. pp. 104,■ 105.</p> <p>Appeal. — When Record Fails to Shore Paragraph on which Verdict Rests.— Where, on appeal, it does not affirmatively appear from the record upon which of several paragraphs of complaint a verdict rests, the judgment must be reversed if any paragraph is bad. p. 106.</p>

<p>From Perry Circuit Court; E. M. Swan, Judge.</p> <p>Action by Sue E. Hall against the Grand Lodge Ancient Order of United Workmen. From a judgment for plaintiff, defendant appeals.</p>

<p>Mortgages. — Railroads.—After-Acquired Property. — Use.—Judgments.— Land adjacent to the depot grounds of a railroad company occupied by buildings leased for postoffice, grocery, barber shop, and other purposes foreign to the necessary means of operating the railroad, did not pass as after-acquired property for purposes connected with or appertaining to the railroad by the foreclosure of a mortgage executed by the railroad company containing a clause including after-acquired property appertaining to the railroad, and was subject to sale under a judgment obtained against the railroad company after the execution of the mortgage.</p>

<p>Building and Loan Associations. — Liquidation.—Adjustment of Loans. — Plaintiff, a borrower from a building and loan association, brought suit to have the amount of the mortgage lien ascertained and adjudged, demanding damages for breach of contract, and to quiet title upon payment of amount found due. It appeared that plaintiff subscribed for sixty-five shares of stock, thirty-five shares thereof to be “oash shares,” and thirty shares “coupon shares,” on which it was to have a loan of $2,600 and pay fifty cents per share per month on the cash shares, and sixty, cents on the coupon shares, for ninety-eight months in full payment of the loan, but the bond and mortgage were executed in accordance with the printed forms of the association, expressing a different contract. The association accepted payments for a period of fourteen months in accordance with the agreement, and then notified plaintiff that it had suspended business, and refused to receive further payments. ¡Held, that the remedy sought by plaintiff is incompatible with the recovery of damages for the breach of. the contract, and, in ascertaining the amount due on the loan, it not being properly disclosed whether the association was solvent or insolvent, the parties should be placed in the relation of debtor and creditor, and the borrower charged with legal rate of interest on the loan from the date of its execution to the time of the rendition of the finding, and credited with the amount paid as'interest and premium, as treated by the association in distributing the same upon its books.</p>

<p>From Boone Circuit Court; B. 8. Higgins, Judge.</p> <p>Action by Margaret Coombs against Jefferson Township, Boone county. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From White Circuit Court; T. F. Palmer, Judge.</p> <p>Suit by the Jasper County Telephone Company against Robert A. Parkinson, treasurer of Jasper county, and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>From Sullivan Circuit. Court; O. B. Harris, Judge.</p> <p>Action by Lizzie Souter by next friend, against George A. Thomas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Circumstantial and Opinion Evidence, — Weight.—On appeal the court will not weigh the evidence, although the verdict of the jury is based wholly on circumstantial and opinion evidence, and positive evidence to the contrary was discredited by the jury.</p>

<p>Insurance. — Void Policy. — Recovery of Premiums. — Insurable Interest.— One who took out policies of insurance on the lives of persons in whom he had no insurable interest, without their knowledge or consent, and in violation of §4905 Burns 1901, can not recover from the company the premiums paid by him thereon, although the company knew all of the facts.</p>

<p>Infants. — Deeds.—Disaffirmance.—Restoring Consideration. — In a complaint to set aside a deed made by plaintiff while she was an infant it is not necessary to allege that the consideration was restored before disaffirming the sale, where it is alleged that plaintiff received no consideration for the sale. p. 160.</p> <p>Same. — Contracts Voidable. — Contracts of infants are not void because of nonage, but voidable only. pp. 160-162.</p> <p>Same. — Disaffirmance of Contracts. — The contract of an infant can not be avoided or disaffirmed because of nonage merely until the infant reaches majority, p. 161.</p> <p>Same. — Deeds.—Disaffirmance.—The act of disaffirming a deed made by an infant need not be by instrument of equal solemnity, nor in writing served upon the grantee, but may be accomplished by the infant, upon arriving at full age, by some act of positive and distinct dissent inconsistent with the continued validity of the deed. p. 161.</p> <p>Same. — Deeds.—Disaffirmance. —Where a married woman twenty years of age residing in Dakota, in January, 1884, executed a deed to real estate in Indiana, the disaffirmance thereof by her after her return to Indiana in November, 1885, was within a reasonable time after arriving at full age. pp. 162, 163.</p> <p>Limitation of Actions. — Pleading.—Amendment.—Where the amended pleading states a different cause of action from that stated in the original complaint it can not be made to relate back to the time of filing the original so as to defeat the operation of the statute of limitations; but an amendment which amounts to a restatement of the original cause of action does relate back to the filing of the original, p. 163.</p> <p>Same. — Pleading.—Amendment.—Presumption.—Where the record shows that the pleading filed was “an amended complaint,” it will be presumed, in the absence of some' showing to the contrary, that it was a restatement of the original cause of action. p. 163.</p> <p>Pleading-. — Misjoinder of Causes of Action. — Demurrer.—A misjoinder of causes of action is not reached by demurrer for want of sufficient facts, p. 163.</p>

<p>Erom Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Suit for partition by Frank Taylor and others against Jessie E. Schlichter and cithers. From a judgment for plaintiffs, defendant Schlichter appeals.</p>

<p>Appeal. — Filing Amended Complaint Without Leave. — No Exception.— Where no objection was made to the filing of an amended complaint, no error can be predicated upon the court’s action in permitting it to be done. p. 171.</p> <p>Same. — Record.—Pleading Withdrawn. — When a pleading is withdrawn, all rulings thereon pass out of the record with it. p. 171.</p> <p>Same. — Joint Exception.- — -Separate Assignment of Error. — A separate assignment of error by one defendant, on a ruling to which appellant with his codefendants excepted jointly, presents no question for review, p. 172.</p> <p>Injunction. — Complaint.—Irreparable Injury. — In an application for an injunction, it is not necessary to aver that the plaintiff will suffer irreparable injury if the relief asked is not granted; an averment that applicant will suffer great injury is sufficient. p. 172.</p> <p>Same. — More Efficient Remedy. — A remedy at law will not bar injunction, where the remedy by injunction is more practical and efficient, p. 172.</p> <p>Appeal. — Precipe.—Transcript.—Bill of Exceptions. — Evidence.—Where the precipe filed by the appellant directed the clerk to prepare and certify a ‘ ‘full, true, and complete transcript of the proceedings, papers on file, and judgment” in the.cause, the action of the clerk in certifying the original bill of exceptions was unauthorized, and the same is- no part of the record, p. 173.</p> <p>Trial. — Special Finding. — Motion to Modify. — A motion to modify or strike out a special finding is not recognized by the code of procedure in this State, and such motion may be overruled or stricken out by the court. If the facts are found contrary to the evidence the remedy is by motion for a new trial, p. 176.</p> <p>Tbial. — Special Finding. — Conclusions of Law Without the Issues. — The assignee of an oil lease brought suit to enjoin another, who claimed a lease of the same premises, from drilling for oil thereon. The original lessor was not made a party to the suit. Held, that conclusions of law as to the rights between the lessor and the assignee under the lease were without the issues, and erroneous. p. 177.</p> <p>Same. — Conclusions of Law. — Surplusage.—Where the judgment follows the conclusions of law as a whole, and the evidence is not in the record, no part of the conclusions can be considered as surplus-age. p. 178.</p>

<p>From Boone Circuit Court; B. 8. Higgins, Judge.</p> <p>Suit by Zimri C. Lewis against William Tron and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Life Estates. — Royalties from Oil Wells. — Gas and Oil Lease. — Where testator leased lands for oil, and two oil-wells were in operation at the time of his death, the devisee of the life estate is entitled to the royalties accruing from wells drilled under the provisions of the lease, after the death of testator, as well as from those drilled prior to the death of testator.</p>

<p>Municipal Corporations. — Obstmction of Street. — Notice. — Contributory Negligence. — A complaint against a town for personal injuries, caused by the alleged negligence of defendant in permitting a large flag to be suspended in a principal street, which frightened plaintiff’s horse as she attempted to drive under it, and caused • the horse to run away and injure plaintiff, shows, on its face, that plaintiff was guilty of contributory negligence in attempting to drive under the flag, and was bad against demurrer, pp. 196-300.</p> <p>Appeal and Error. — Briefs.—Rehearing.—It is too late for appellee to appear for the first time and file a brief after the case has been decided, p. 301.</p>

From DeKalb Circuit Court; P. V. Hoffman, Special Judge. Proceeding by the Wabash Railroad Company to obtain a crossing over the tracks of the Baltimore & Ohio Railroad Company. From a judgment establishing the crossing, defendant appeals.

<p>From Huntington Circuit Court; Levi Mock, Special Judge.</p> <p>. Suit by John M. Hatfield against Joshua W. DeLong and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Intoxicating Liquors. — Agreement Not to Permit Sale of Liquor on Premises. — Subsequent Purchaser. — Covenant.—An agreement of record between the owner of the south half of a lot and the purchaser of the north half not to permit the sale of intoxicating liquors on the south half of the lot, nor to convey the same without inserting a restrictive clause to that effect in the deed, made in consideration of such purchase, and of an agreement to erect a joint building on the lot, though not a covenant running with the land, is enforceable in equity against a subsequent owner under a deed without the restrictive clause, pp. 216-218.</p> <p>Same. — Agreement Not to Permit Sale of Liquor on Premises. — Monopoly. —Restraint of Trade. — A contract prohibiting the sale of intoxicating liquors upon a certain lot is not invalid as against public policy in restraint of trade, or tending' to create a monopoly. p. 218.</p>

<p>Municipal Corporations.— Defective Bridge. — A city is liable in damages for failure to keep its bridges in a reasonably safe condition. p. $19.</p> <p>Same. — Defective Bridge. — Notice.—A city is chargeable with notice of a defect in a bridge in a populous part of the city consisting of a hole two feet long and six inches wide which had existed for three or four months, pp. $19, $$0.</p> <p>Damages. — Pleading.—Evidence.—An averment in a complaint in an action for personal injuries that “the muscles of plaintiff’s legs, arms, sides, back, abdomen, and bowels were strained and bruised to an extent that plaintiff suffered great pain of body and anguish of mind’ ’ was sufficient to admit evidence that a hernia with which plaintiff was suffering at the time of the injury was aggravated by the injuries received, p. $$0.</p>

<p>Damages. — Assault and Battery. — Punitive Damages. — Punitive damages can not be awarded for an assault and battery, since defendant is also subject to a criminal prosecution, p. SSI.</p> <p>Appeal and Error. — Harmless Error. — Erroneous Instruction. — A cause will be reversed because of an erroneous instruction given where it does not clearly and affirmatively appear from the record that the verdict is right upon the evidence, pp. SSI, SSS.</p>

<p>From the Superior Court of Madison County; II G. By an, Judge.</p> <p>Suit by the Enterprise Natural Gas Company and others against the Richmond Natural Gas Company. From a judgment for plaintiffs, defendant appeals.</p>

From Marion Circuit Court; H. G. Allen, Judge. Suit by Lillian L. Masters against James D. Maris for the specific performance of a contract to convey real estate. From a judgment for plaintiff, defendant appeals.

<p>Bills and Notes. — Fraud as to Consideration. — Praud in the procurement of the contract for, or in connection with, the consideration of a negotiable promissory note, will not bar a recovery by an innocent holder, p. 246.</p> <p>Same. — Fraud in Procuring Signature. — Where the signature to a note is secured by fraud going to the character of the paper, its maker having no intention of signing a note, he will, in the absence of negligence in affixing his signature or in failing to discover the fraud, be no more bound by it than he would be if the signature were a total forgery, p. 246.</p> <p>Same. — Fraud in Procuring Signature. — Answer.—In an action on a negotiable note by an innocent holder, an answer alleging that “if the signature is genuine, it was obtained by fraud, either in substituting the note for an insurance application or reading the same incorrectly or by means of a carbon transmitter, ’ ’ is insufficient, where there were no averments showing diligence on the part of defendant, and no excuse for want of negligence shown except that defendant was ‘ ‘not educated in the English language as it is printed.” pp. 246, %41 •</p>

<p>Husband and Wine. — Contract of Wife to Éell Seal Estate. — Notes.— Consideration. — The individual contract of a married woman to sell real estate, and to execute a bond for a deed, is void, and constitutes no consideration for purchase-money notes, pp. 849, 850.</p> <p>Same. — Void Contract of Mamed Woman. — The contract of a married woman which is void as to her, and incapable of ratification by her, is also void as against the other party thereto, p. 850.</p> <p>Husband and Wife. — Void Contract of Married Woman to Sell Land.— Inability for Rent. — One who takes possession of real estate under the void contract of a married woman to sell is liable for rent. p. S51.</p>

<p>Contracts. — Mistake.—Fraud.—Where a person signs an agreement from which certain stipulations previously agreed to were omitted, and there is no relationship between the parties so as to excuse lack of care, the person so signing will be bound by the oontract. pp. 254-256.</p> <p>Fraud. — Diligence.—If one fails to use ordinary care and diligence to guard against fraud and imposition, he can not obtain relief from the courts, p. 256.</p> <p>Trial. — Recovery too Small. — Remedy.—Where plaintiff claims that the jury’s answers to interrogatories entitle him to an amount greater than the general verdict, his remedy is by motion for judgment non obstante veredicto, and not by motion for new trial. Madden v. Dunn, 24 Ind. App. 505, overruled, pp. 256, 257.</p> <p>Appeal. — Harmless Error. — Error in overruling a demurrer to an answer is harmless, where the jury found for plaintiff, p. 257.</p> <p>Contract.-^Breach. — Measure of Damages. — Where plaintiff sues for breach of a contract by which he was employed by defendant to install an electric light plant, the measure of damages is the difference between the contract price and the amount which it would have cost him to perform the contract, p. 257.</p> <p>Trial. — General Verdict. — Answers to Interrogatories. — Conflict.—Where the facts specially found by the jury in answers to interrogatories clearly show that the jury have erred in computing the amount of recovery fixed by the general verdict, the special findings control, pp. 257, 258.</p>

<p>Railroads. — Fires from Locomotives. — Contributory Negligence. — Instructions. — As instruction in an action for damages to plaintiff’s buildings, caused by fire escaping from defendant’s locomotive, that the jury, in determining whether or not plaintiff was guilty of contributory negligence, might consider, along with the other circumstances of the case, the character and age of the shingles on the roofs of the buildings and their inflammable character, and also whether or not plaintiff maintained any water appliances at its plant at the time of the fire, was erroneous; since a person has the right to construct a building on any part of his property and enjoy the same without reference to the proximity of a railroad, and he is not required to keep his property in such condition as to guard against the negligence of the railroad company, pp. 260, 261.</p> <p>Same. — Fires from Locomotives. — Duty of Owner of Property. — As instruction in an action for damages caused by fire escaping from defendant’s locomotive to plaintiff’s buildings that if plaintiff or any of its officers or servants had knowledge of the fire it was its duty to extinguish it as speedily as possible was erroneous, as the law requires only reasonable efforts, under the circumstances proved, to prevent loss. p. 262.</p> <p>Negligence. — Proof of One of Several Acts of Negligence Charged.— Instructions. — Railroads.—Fires.'—Where in an action for damages for fire escaping from a locomotive the complaint charged that the fire was caused fey a live coal or spark negligently emitted from the locomotive, that the spark-arrester was defective and that the engineer was operating the engine in a negligent manner, an instruction that plaintiff in order to recover must prove all of the acts of negligence charged was erroneous, as proof of either act of negligence shown to be the proximate cause of the injury was sufficient, pp. 262, 268.</p> <p>Appeal and Error. — Evidence.—Objects Used in Illustration Not in Record. — The failure to make drawings of objects used as.mere reference in a trial, for the purpose of illustration, a part of the recprd on appeal is not a sufficient reason for disregarding the entire evidence, when a vital issue in the case can be determined without the inspection of the object to which reference has been made. pp. 264, ^S5.</p>

<p>Municipal Corporations. — Vacation of Street. — Objection by Property Owner. — A person competent to object to the vacation of a street as a property owner, under §§3648, 3650 Burns 1901, must be a property owner immediately upon the street or the part thereof to be vacated, p.268.</p> <p>Same. — Vacation of Street. — Injunction.—A complaint by a property owner upon a street, but not abutting the part sought to be vacated, is insufficient to entitle plaintiff to injunctive relief, where the facts pleaded do not show that any special damages will result to plaintiff’s property by the proposed vacation, pp. 26Q.-269.</p>

<p>From "Wells Circuit Court; J. P. Hale, Special Judge.</p> <p>Action by Bettie Monroe against the city of Bluffton. From a judgment for defendant on demurrer to complaint, plaintiff appeals.</p>

<p>From Laporte Superior Court; H. B. Tuthill, Judge.</p> <p>Action by Minnie Fuenfstueck against John Harrold. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom "Warrick Circuit Court; E. M. Swan, Judge.</p> <p>Suit by Lavina Bateman against Jacob IT. Bennett. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Prom Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Suit by John Tevis against Louis Hammersmith and others. Prom a judgment for defendant on demurrer to complaint, plaintiff appeals.</p>

<p>Sales. — Delivery,—The law only requires such a delivery as is consistent with the nature and situation of the thing sold, and with the relations of the parties to the sale. p. 293.</p> <p>Same. — Threshing Machinery. — Delivery.—Where threshing machinery sold was to be delivered at a designated place, but by a subsequent arrangement between the parties it was agreed that the machinery should be accepted as it stood, the buyer can not successfully defend an action on the purchase-money notes on the ground that the machinery had not been delivered to the place first designated, pp. 292-294.</p>

<p>From Hendricks Circuit Court; T. J. Gofer, Judge.</p> <p>Claim by Ella Baird against Eldridge E. Ellis, administrator of tbe estate of James A. B. Baird, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Elkhart Circuit Court; J. D. Ferrall, Judge.</p> <p>Action by Ollie B. Bobbins against the Noyes Carriage Company. Erom a judgment for plaintiff, defendant appeals.</p>

From Jasper Circuit Court; J. S. Lairy, Special Judge. Action by Clara Coen, administratrix' of the estate of Madison Makeever, deceased, and others, against Everett Halstead. From a judgment for ’plaintiffs, defendant appeals.

From Greene Circuit Court; W. W. Moffett, Judge. Action by Marilda Martin, administratrix of the estate of John R. Martin, deceased, against the Chicago, Indianapolis & Louisville Railway Company and the Perry-Mathews-Buskirk Stone Company. From a judgment for plaintiff, defendants appeal.

<p>Erom "White Circuit Court; T. F. Palmer, Judge.</p> <p>Suit by Ered Spencer against Charles C. .Spencer. Erom a judgment for defendant, plaintiff appeals.</p>

From Putnam Circuit Court; P. O. Colliver, Judge. Annexation proceedings by tbe board of trustees of tbe town of Cloverdale, to which James H. McCoy remonstrated. From a judgment for petitioners, remonstrant appeals.

<p>From Delaware Circuit Court; J. G. Leffler, Judge.</p> <p>Action by George Lowe against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals.</p>

From Montgomery Circuit Court; Jere West, Judge. Action by Dora Clements against Ilosea Ristine and others. From a judgment for plaintiff, defendant Ristine appeals, and appellee Clements assigns cross-errors.

<p>Appeal. — Question of Law. — Bill of Exceptions. — Review.—Where an appeal has been taken under §642 Burns 1901, and the question reserved is upon the admission or exclusion of evidence, the bill of exceptions should show that the objection was made, with the grounds of objection, and that exception was taken at the time. p. 351.</p> <p>Same. — Motion to Strilce Out Evidence. — Bill of Exceptions. — Review.— The ruling of the trial court on a motion to strike out “all the evidence” of a certain witness will not be reviewed on appeal, where the bill of exceptions sets out only a part of the evidence given by the particular witness, p. 352.</p> <p>Trial. — Instructions.—The trial court may refuse to give instructions that are a substantial repetition of instructions already given. p. 352.</p> <p>Same. — Instructions.—Number of Witnesses. — Preponderance of Evidence. —It is not error for the trial court to refuse an instruction that would give or have a tendency to give the jury to understand that the preponderance of evidence is to be determined by the number of witnesses testifying on each side. p. 352.</p>

From the Superior Court of Marion County; J. M. Leathers, Judge. Action by Harry Locke, by his next friend, against Abram G. Brower and others. From a judgment for plaintiff, defendants appeal.

From Putnam Circuit Court; P. O. Colliver, Judge. Action by Charles E. Moore and another against Moses D. Payne and Elizabeth E. Batman. From a judgment for plaintiffs, and for Elizabeth E. Batman on her cross-complaint, defendant Moses D. Payne appeals.

<p>Master and Servant. — Defective Appliance. — Knowledge of Master.— Complaint. — A complaint for personal injuries received by plaintiff while assisting in the laying of a pipe-line, under the direction of a foreman, which alleges that the injury occurred because of the weak and insecure condition of the blocking and scaffolding constructed by defendant’s superintendent and foreman, is sufficient without alleging specifically that the defendant had knowledge of the defects, p. S7S.</p> <p>Same. — Defective Appliance. — Knowledge of Servant. — Instruction.—When Defective Instruction Not Cured by Others. — In an action by a servant for injuries sustained while in the employ of defendant in the laying of a pipe-line, charging that the cause of the injury was the defective construction of certain blocking and scaffolding, an instruction which undertakes to enumerate certain facts which, if proved, will authorize a verdict for plaintiff, is erroneous if it omits all reference to plaintiff’s knowledge or means of knowledge of the defects; and such instruction is not cured by another instruction which states the law correctly, pp. 374, 876.</p>

<p>From Jackson Circuit Court; T. B. Buskirk, Judge.</p> <p>Suit by Ilettie K. Thompson against Louisa H. Jami-son and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Prom Laporte Circuit Court; J. G. Richter, Judge.-</p> <p>Action by Gideon A. Price against J. O. William Lonn. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Husband and Wife. — Wife not Required to Support Husband. — A wife is under no legal obligation to support her husband, nor to pay out of her separate property, the expenses of her husband’s last sickness and funeral expenses, pp. 387, 388.</p> <p>Same. — Wife’s Agreement to Pay Expenses of Husband’s Last Sickness.— A husband was sick and unable to support himself. His wife upon the promise of her husband’s grandfather to make certain provision for her out of his estate supported her husband out of her own separate means until his death. Held, that the agreement formed the basis of a valid claim against the grandfather’s estate. pp. S88, 889.</p>

<p>Pleading. — Complaint on Fire Insurance Policy. — Variance.—The complaint on a fire insurance policy described the property insured as a dwelling situated on lot number twenty-five in “McTeagert’s addition ” to a certain city, while the policy showed that the defendant insurance company agreed to insure against loss by fire a dwelling situated on lot twenty-five in “McTeagert’s fifth addition to said city.” Held, that the variance might have been good ground for objection to the introduction of the policy in evidence, but did not make the complaint bad. pp. $94, 395. Deeds. — Delivery.—A delivery of a deed is not effective without an intent on the part of the grantor that it is to be delivered, accompanied by an act to carry out such intent, pp. 395, 396.</p> <p>Same. — Execution and Record of Deed Without Knowledge of Grantee.— Delivery. — Where a deed of conveyance was executed and recorded without the knowledge of the grantee, and after record the grantors took possession of the deed and exercised dominion over it, and where the purpose of the grantor was that the deed should not be delivered except upon a certain contingency which did not arise, there was no delivery, p. 396.</p> <p>Pleading. — Complaint on Fire Insurance Policy. — Reply.—Departure.— To a complaint on a fire insurance policy for damages to a dwelling-house, the defendant insurance company answered that the plaintiff was not the owner of the property insured at the time the policy was issued, and that the policy by its terms was thereby rendered invalid. Held, that a reply which admitted that the records in the county recorder’s office showed that plaintiff had deeded the property to another, but that the deed was without consideration, had never been delivered, and was made and recorded without the knowledge of the grantee, was not bad as being a departure from the complaint, pp. 396, 397.</p> <p>Exemption. — Pleading.—The right of exemption is given only upon contracts express or implied, and when such right is pleaded it must appear that the judgment was of the character entitling the claimant to the exemption, p. 397.</p>

Prom Marion Circuit Court (7,468); Vinson Garter, Special Judge. Irene Allison filed a claim against the estate of Helen J. Tate, deceased, for services. Prom a judgment for plaintiff, defendant appeals.

<p>From Hendricks Circuit Court; T. J. Gofer, Judge.</p> <p>Action by the American School Furniture Company against Lincoln School Township. From a judgment for plaintiff, defendant appeals.</p>

<p>From the Superior Court of Marion County (61,710); Vinson Carter, Judge.</p> <p>Action by David J. Leathers against Henry W. Lawrence and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Beneficial Associations. — Members.—Resort to Court. — A member of a mutual benefit society is not required to exhaust his remedies within the order before resorting to the courts, unless the by-laws of the society make it obligatory upon him to do so. pp. 428, 429.</p> <p>Same. — Rejection of Members. — Evidence.—Plaintiffs brought suit on a policy of insurance in a beneficial association, alleging that after the issuance of the policy the association created a new class to which members could pass by paying certain increased assessments and passing a medical examination; that some years before his death the deceased made application to be transferred to such class and at such time was ‘ ‘in perfect physical and mental health and condition” and was arbitrarily refused admission thereto. Physicians and others testified that at the time he made application for transfer his physical and mental conditions were good. The evidence further showed that his examination disclosed a pulse rate, claimed by the examiner in chief to be excessive for a man at age of applicant and for such reason he was rejected by the medical examiner in chief, and no attempt was made to prove that the pulse, rate was not excessive. Held, that the complaint was not sustained by the evidence, pp. 423-431.</p> <p>Evidence. — Action on Insurance Policy. — Heirs as Witnesses. — Heirs of insured were not incompetent witnesses, under §507 Burns 1901, as to the health of insured when he made his application, in an action on an insurance policy payable to the “legal heirs” of insured. pp. 431, 432.</p>

<p>From Daviess Circuit Court; M. S. Hastings, Special Judge.</p> <p>Action by Mary LaZear against Katherine LaPlante. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Mastee and Seevant. — Section Hands. — Fellow Servants. — Gangs of section hands employed during the day by the same railroad company, and who were proceeding homeward on two hand-cars after the close of the day’s work, were fellow servants, p. 445.</p> <p>Same. — Defective Brakes on Hand-Car. — Proximate Cause. — Plaintiff averred in his complaint that he was one of a number of section hands on defendant’s railroad; that at the close of the day’s work he and five of his co-employes boarded a hand-car and started to a city six miles distant; that other co-employes to the number of from eight to twelve boarded a second hand-car, larger and swifter than the first, and followed in close proximity to the first; that by reason of defective brakes the second car became unmanageable, and ran into and derailed the first, causing plaintiff’s Injuries. On the trial the evidence as to whether the brakes were defective was conflicting, but there was no evidence whatever showing an attempt on the part of those in charge of the car to úse the brakes. Held, that the defective brakes were not the proximate cause of the injury as alleged in the complaint, and that there could be no recovery, pp. 442-446.</p>

From Ohio Circuit Court; N. S. Givan, Judge. Proceeding by Ruth E.. Barricklow for the removal of Stephen H. Stewart, executor of the will of Presley Gregg, deceased. From a judgment for defendant, plaintiff appeals.

<p>From Morgan Circuit Court; M. H. Parks, Judge.</p> <p>Action by Katharine Dickson against the Pennsylvania Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Miami Circuit Court; J. T. Cox, Judge.</p> <p>Action by Carl II. Wells, by next friend, against, the Indiana Manufacturing Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Adams Circuit Court; B. K. Erwin, Judge.</p> <p>Action by Frank Morvilius against the Ft. Wayne Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Action by Josephine Barnett against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals.</p>

<p>From the Superior Court of Marion County (52,553); J. M. Leathers, Judge.</p> <p>Action by Enos Flynn against the Old Wayne Mutual Life Association. From a judgment for plaintiff, defendant appeals.</p>

From Shelby Circuit Court; Douglas Morris, Judge. Action by Armstead King and wife against the Morristown Fuel & Light Company and another. From a judgment granting insufficient relief, plaintiffs appeal.

Erom Gibson Circuit Court; O. M. Welborn, Judge. Suit by the State, on the relation of John T. Ballard, against James H. McGreggor and others. Erom a jud.gment for plaintiff, defendants appeal.

<p>Counties. —Physician for Poor Person. —Payment. —Appropriation by County Council. — A complaint against a county by a physician for services rendered a poor person is insufficient, where it is not alleged that the county council had made an appropriation for the payment of such claim or class of claims.</p>

<p>Negligence. — Complaint.—A complaint for personal injuries will not be held insufficient because the act of negligence was charged in general terms, where no motion was made to make more specific. pp. 489, 490.</p> <p>Appeal and Error. — Evidence.—Instructions.—Bill of Exceptions. — The original manuscript of the evidence and the instructions can not be brought up by one bill of exceptions, pp. 490-492.</p> <p>Same. — Instructions.—Where Evidence Not in Record. — In the absence of the evidence, a cause will not be reversed because of the alleged error of court in giving certain^ instructions and in refusing to • give certain instructions, where the instructions' given were correct as mere abstract propositions of law; since the court can not say, in the absence of the evidence, that the instructions given were not applicable to the case or that those refused were applicable. p. 498.</p>

<p>Appeal. — Joint Exceptions. — Review.—An exception taken by two or more coparties jointly to a ruling is a formal notice of their purpose jointly to reserve the question and assign it as error on appeal, and unless the action of the court excepted to jointly can be reviewed as to all who join in the exception, it may not be reviewed as to any of them. pp. 494, 495.</p> <p>Contbacts. — Rescission for Failure to Comply with Provisions. — Recovery of Part of Consideration Paid. — C entered into an agreement with three stockholders of a corporation by the terms of which he was to purchase their certain shares of stock, $2,000 to be paid at the time the agreement was entered into, and a second payment at a fixed time in the future. The stock was not to be assigned to C until the second payment was made. The contract was signed by the three stockholders and the corporation. The cash payment was made to the three stockholders. Upon default in making second payment, C was notified by the three stockholders and the corporation that they had determined to rescind any rights of plaintiff under the contract because of his failure to comply with its provisions. Held, that there could be no recovery by C against the corporation on account of the $2,000 payment, pp. 496, 497.</p> <p>Corporations. — Fraud of Stockholder in Sale of His Stock. — Where corporate stock is purchased of stockholders who individually misrepresent the condition of the corporation for their own benefit, the corporation is not liable in damages for such fraudulent misrepresentations, although the agreement as to the terms of sale be signed by the corporation, p. 498.</p>

<p>From "Wabash Circuit Court; W. G. Sayre, Special J udge.</p> <p>Action by Sherman F. Bash against the Everett Piano Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Striking Out Interrogatories. — New Trial. — Alleged error of court in striking out interrogatories must be presented on appeal by specification in motion for new trial, p. 509.,</p> <p>Building and Loan Associations. — Foredomre of Mortgage. — Answer. —Exhibits.—No error was committed in striking out exhibits consisting of printed statements of the condition of plaintiff building and loan association filed with answers to a complaint to foreclose a mortgage, such matters being merely evidence and admissible without being made exhibits, p. 509.</p> <p>Debts, Action of. — Ultra Vires. — Estoppel.—A borrower is estopped - by receiving a loan and keeping the money from setting up the defense that the creditor had no power to make the loan. pp. 509, 510.</p> <p>Building and Loan Associations. — limitation of Payments. — Maturity of Stock.-. — A limitation placed on the number of payments a stockholder is required to make to mature his stock as provided by the certificate of stock is of no avail to a borrowing member, where such agreement as to-the number of payments is not carried into the bond and mortgage securing the loan but on the contrary provided therein that the borrower shall continue to pay the dues until the stock matures, pp. 510, 511.</p> <p>Building and Loan Associations. — Representations Made by Officers.— Estoppel. — Oral or printed statements made by the officers or agents of a building and loan association in direct contradiction of the by-laws, or in contradiction of the contract itself, whether relied upon by the person to whom made or not, can not be made the basis of an estoppel in a suit by the building and loan association to ■ foreclose a mortgage, where the by-laws are made part of the loan contract by reference thereto, unless such representations were fraudulently made. p. 511.</p>

<p>From Wayne Circuit Court; II. C. Fox, Judge.</p> <p>Suit by Amanda Wright against George T. Kepler. From a judgment for plaintiff, defendant appeals.</p>

<p>Quieting Title. — Tax Sale. — Description.—A description of real estate in a notice of tax sale and certificate of sale as “lot one, Col. W. Oo. ’ ’ is too indefinite and uncertain to support a suit to quiet title, pp. 518, 519.</p> <p>Tax Sales. — Description.—Section 8601 Burns 1901 requires that land be advertised for tax sale by same description as on tax duplicate, pp. 519, 520.</p> <p>Same. — Imperfect Description. — Lien.—Where in a suit to quiet title to lands under a tax sale certificate it appeared that defendant had obtained title through a sale and subsequent conveyance under a partition proceeding, and there was nothing of record to show that the land had been sold for taxes because of the imperfect description thereof, the court properly held that the tax sale was invalid and did not convey title, but that the lien of the State was transferred to plaintiff, and that he was entitled to a first lien for the amount he paid together with penalties and interest, p. 520. ,</p>

<p>From the Superior Court of Madison County; H. C. ■ My an, Judge.</p> <p>Action by Benjamin F. Swift against John W. Parkhurst and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From the Superior Court of Vanderburgh County; W. M. Wheeler, Special Judge.</p> <p>Action by Addie R. Marshall against the Grand Lodge of the Ancient Order of United Workmen. From a judgment for plaintiff, defendant appeals.</p>

<p>Municipal Corporations. — Defective Streets. — Notice.—Proof.—An averment in a complaint against a city for personal injuries sustained because of a defect in a sidewalk, that defendant had notice of the dangerous condition of the sidewalk for a long time prior to the date of the accident, was sufficient, and proof of actual notice by the city of such defect was not necessary. p. S/fl.</p> <p>New Trial. — Newly Discovered Evidence. — Cumulative Evidence. — A new trial will not be granted on account of newly discovered evidence which is cumulative, p. 5Jfl.</p>

<p>From Monroe Circuit Court; Newton Crooke, Special Judge.</p> <p>Action by John M. Cabell and another against Susan F. McKinney and others. From a judgment for defendants, plaintiffs appeal.</p>

Erom Vanderburgh Circuit Court; A. C. Hawkins, Judge. Suit by Walton R. Wbeeler, administrator with will annexed of the estate of Anna R. Slinghart, deceased, against Peter Herbert and others to sell real estate to pay debts. Erom a judgment for plaintiff, defendant Herbert appeals.

<p>Pleading. — Demurrer.—Form.—A demurrer to a complaint “for the reason that said complaint does not state a cause of action,” though not in the form of the statute, is sufficient to question the complaint under the fifth statutory cause, p. 657.</p> <p>Negligence. — Carriers.—Complaint.—Proximate Came. — JRailroads.— A complaint against a railroad company for damages for injury to a car load of horses alleging that it was the duty of defendant to place the car at the chute at the stock-yards upon arrival at its destination so that the stock might be unloaded, and that defendant not only failed so to place the oar, but refused to do so when requested, and that, disregarding its duty and plaintiffs’ request, the car was placed by defendant among other cars, away. from the chute, - and in a position where it was impossible to unload the horses, leaving the car and horses so situated until the next day, and during the time the horses were in defendant’s charge, and while standing on the side-track they became and were injured, to such an extent that when they were unloaded from the oar two of the horses died, and others were crippled, while showing negligence, does not show that the negligence charged was the proximate cause of the injury, pp. 558-561.</p>

<p>Contracts. — When Void as Against Public Policy. — Contracts are not held void as against public policy, unless the contract itself requires the doing of something affecting the public good, or the consideration is immoral or hurtful, or is forbidden by statute. p. 569.</p> <p>Mortgages. — Taken in Name of Nonresidentto Avoid Taxation. — Validity. —Public Policy. — A mortgage executed in proper form and duly recorded is not void on the ground of public policy because taken in the name of a nonresident by whom it was assigned to the real owner, and the assignment withheld from record, in order to avoid the payment of taxes, pp. 563-5T0.</p>

From Kush Circuit Court; Douglas Morris, Judge. Partition proceeding by Mary H. Haugh and others against Maria P. Smelser and others. From a judgment for defendants on demurrer to complaint, the plaintiffs and all defendants, except Maria P. Smelser, appeal.

<p>Quieting Title.— Complaint. — Gas and Oil Lease. — A complaint against a lessee to quiet title which shows on its face that the lease had expired before the action was brought, and it is not shown that the lessee was contending that the lease, in any manner, affected the real estate at the time the action was commenced, or that plaintiff was the owner of any right, title, or interest in the real estate upon which the alleged lease was executed, is insufficient.</p>

<p>Covenants. — Warranty Deed. — Grantee’s Knowledge of Encumbrances.— The right of a grantee to recover on a covenant of warranty in a deed is not affected by the grantee’s knowledge of the existence of an encumbrance at the time of conveyance, pp. 588, 58f..</p> <p>Vendor and Purchaser. — Reconveyance by Warranty Deed to Satisfy Purchase-Money Mortgage. — Judgment.—Priority.—Judicial Sale. — The mortgagor of land, in satisfaction of a purchase-money mortgage, reconveyod the land to the mortgagee, and the mortgagee, not knowing that there was on the land the lien of a judgment against the mortgagor, satisfied the mortgage. Thereafter the mortgagee conveyed the land by warranty -deed to plaintiff. After the death of mortgagee, plaintiff brought suit to enjoin the levy of execution on the land by the judgment creditor and to revive the mortgage lien as prior to the judgment, and the court so decreed. The amount of the mortgage lien was fixed at the face of the mortgage less the rental value of the land while occupied by plaintiff. The judgment creditor bought the land at judicial sale, paying to plaintiff the amount of his mortgage lien. Subsequently plaintiff paid to the judgment creditor the amount of both mortgage and judgment and took an assignment of the certificate of sale in order to cut off certain other judgment liens existing on the land. Held, that the plaintiff could recover the amount Of the judgment from the mortgagee’s heirs, after his estate had been finally settled, pp. 578-589.</p> <p>Covenants. — Against Encumbrance. — A covenant of warranty against encumbrances, in a deed of conveyance, runs with the land. p. 587.</p> <p>Covenants. — Breach of Covenant. — Death of Covenantor. — Action Against Heirs.- — Where a claim against a decedent’s estate is in the nature of damages for a breach of warranty in a deed which had been executed by decedent, and which did not accrue until after the final settlement of the estate, there may be a recovery in an action against the legal heirs of the decedent, pp. 587-589.</p> <p>Appeal. — Pleading. — Proof. — Variance. — Complaint Considered as Amended. — Where a certain transaction is erroneously referred to in a complaint as a “redemption,” when the facts set forth in the same connection and the proof on the trial showed, not a redemption but a procurement of an assignment of a sheriff’s certificate of-sale, the judgment will not be reversed on appeal for variance. The language of the complaint in this respect will be considered as amended, p. 589.</p>

Erom Tipton Circuit Court; J. C. Blacklidge, Special J udge. Suit by Mary Krise and others against Isaac D. Wilson and others. Erom the action of the court in granting defendants a new trial as of right, plaintiffs appeal.

<p>From Monroe Circuit Court; W. II. Martin, Judge.</p> <p>Action by James B. Mulky against James Karsell and others. From a judgment for defendants on demurrer to complaint, plaintiff appeals.</p>

<p>Erom Porter Circuit Court; W. C. McMahan, Judge.</p> <p>Action by Mary E. Ryan, administratrix of tbe estate of Thomas J. Ryan, deceased, against the Baltimore & Ohio Railroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County; (62,656) Vincent Gr. Clifford, Special Judge.</p> <p>Action by Q-eorge J. Dawson against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Pleading. — Sham. Pleading. — Motion to Strike Out. — Examination of Adverse Party. — A complaint can not be stricken o,ut as sham pleading upon answers to questions propounded to a party, pursuant to §517 Burns 1901, providing for the examination of an adverse party as witness.</p>

<p>From Superior Court of Marion County (62,210); Vinson Carter, Judge.</p> <p>Suit by Catharine J. Hammond against Mary A. "Webb -and husband. From a judgment for plaintiff, defendant Mary A. Webb, appeals.</p>

From Jackson Circuit Court; I). A. Kochenour, Special Judge. Suit by Albert J. H. Wieneke and another against Solomon Deputy to quiet title. From a judgment for defendant on his cross-complaint, plaintiffs appeal.

<p>From Knox Circuit Court; O. H. Cobb, Judge.</p> <p>Action by Pernilla P. Llaugbton and others against the Life Assurance Company of America. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Vigo Circuit Court; J. JE. Piety, J udge.</p> <p>Action by Richard J Barrett and others against Mary Burke and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

From the Superior Court of Allen County; J. H. Aiken, Judge. Actions by Arthur Burns and others against the Trustees of Huntertown Cemetery Church and others, consolidated. From judgments in favor of defendants, plaintiffs appeal.

<p>Appeal-. — Sufficiency of Answer. — The sufficiency of an answer can not be raised for the first time by an assignment of error in an appellate tribunal, p. 644.</p> <p>Same. — Joint Assignments of Error. — Answers.—A joint assignment of error challenging the sufficiency of two paragraphs of answer is not available if either paragraph is good. p. 645.</p> <p>Chattel Mortgages. — Failure of Consideration. — Foreclosure by Assignee. — A mortgage on a span of- mules was executed to secure two notes for the purchase money thereof. Before the notes became due the mules were taken from the purchaser under a prior mortgage the existence of which the purchaser had no knowledge at the time he executed his notes and mortgage. Held, that the consideration for the last notes and mortgage had wholly failed and that a holder thereof who took an assignment with knowledge of the facts could not recover thereon, pp. 645-647.</p> <p>Same. — Assignee Takes Notice of Terms. — Where, by the terms of a mortgage executed to secure the payment of two notes, both notes become1 due and collectible upon default in the payment of one of them, an assignee who takes the assignment after such default is chargeable with knowledge that both notes were past due at the time. pp. 647, 648.</p>

<p>From Johnson Circuit Court; W.J. Buckingham, Judge.</p> <p>Action by Emelia Davenport against the city of Franklin. From a judgment for plaintiff, defendant appeals.</p>

<p>Intoxicating Liquors. — Sale by Druggist. — Compound Containing Whiskey. — "Where a druggist without license to sell intoxicating liquors, and without a prescription from a physician, sold a.compound consisting of whiskey and gum guiacum to he used, and which was used, hy the purchaser as a remedy for rheumatism, the sale was not in violation of §7276 Burns 1901, making unlawful the sale of intoxicating liquors without license.</p>

<p>From Knox Circuit Court; O. H. Cobb, Judge.</p> <p>Action by Jobn M. Bunting against Samuel P. Ruble. From a judgment for plaintiff, defendant appeals.</p>

<p>From. Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Action by Dennis Hurst against Flora George and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Quieting Title. — Notice of Vendee’s Agent as to Former Conveyances.— Sufficiency of Evidence. — In a suit to quiet title, the evidence showed that the real estate in controversy was a part of a tract of land, a life estate in which had been devised by testator to his wife and the fee to his children; that the children executed to plaintiff a deed which after delivery was returned to the justice of the peace before whom it had been acknowledged, and by whom an important correction was made; that before the deed was returned and recorded, and more than forty-five days after its execution, the grantors gave a warranty deed for the same tract of land to one Stewart who executed and delivered to plaintiff a warranty deed therefor, which latter deed was lost and never recorded; that thereafter the testator’s said children conveyed to defendant adjoining lands, and unintentionally the land in controversy was included. Conversations with defendant’s agents at the time of the last conveyance, admitting knowledge of the former conveyances of the land by the same grantors, were introduced in evidence, but such conversations were denied by the agents. Reid, that the trial court was warranted in finding that defendant’s agents had notice of the prior conveyances before the transfer to defendant, and that defendant took his conveyance charged with knowledge of plaintiff’s right under the unrecorded deeds, pp. 666-669.</p> <p>Principal and Agent. — Notice to Agerú. — Notice to an agent for the purchaser of real estate is notice to the purchaser, p. 670. Notice. — Putting Party on Inquiry. — Whatever puts a party on inquiry amounts to notice, p. 671.</p> <p>Deeds. — Recording.—Validity.—The recording of a deed is not essential to its validity as between the parties, p. 671.</p> <p>Same. — Disaffirmance by Infant Feme Covert. — Under §3364 Burns 1901, a married woman can not disaffirm a conveyance made during minority, until she has restored to her grantee the full consideration received, p. 67%.</p> <p>Vendor and Purchaser. — Possession of Land. — Notice.—Actual possession of lands under claim of title is sufficient notice of such claim to put others on inquiry as to the existence and nature of the claim, p. 673.</p>

From Marion Circuit Court (10,452); JET. C. Allen, Judge. Action by R. W. Dunn and others, executors of the estate of John S. McCray, deceased, against Eleanora Dilks, executrix of the will of John H. Dilks, deceased. From a judgment in favor of defendant, plaintiffs appeal.

<p>Erom Lawrence Circuit Court; W. H. Martin, Judge.</p> <p>Action by tbe John C. Gfroub Company against Zipporah Smith. Erom a judgment in favor of defendant, plaintiff appeals.</p>

<p>From Shelby Circuit Court; Douglas Morris, Judge.</p> <p>Action by Alice B. Bankert against the Court of Honor. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Madison County; II. G. Ryan, Judge.</p> <p>Action by No. 5 Fidelity Building & Savings Union against James Driver and others. From a judgment in favor of Samuel T. Bronnenberg, one of the defendants, plaintiff appeals.</p>

From Orange Circuit Court; W. O. Utz, Special Judge. Application by Frederick R. Nugent for liquor license. From a judgment reversing order of board of' commissioners granting the license, remonstrators appeal.

<p>From Laporte Superior Court; H. B. Tuthill, Judge.</p> <p>Action by Charles Baertz against Gustave Schmidt and another. From a judgment for defendants, plaintiff appeals.</p>

<p>From Hendricks Circuit Court; S. A. Hays, Special Judge.</p> <p>Action by Union National Bank of Muncie, Indiana, against Franklin School Township and others. From a judgment for defendants, plaintiff appeals. Affirmed.</p>