Volume 32 — Indiana Appellate Court Reports

<p>From Elkhart Circuit Court; J. M. Van Fleet, Special Judge.</p> <p>Action by James Du Shane against Charles A. Chapin. From a judgment for plaintiff, defendant appeals.</p>

<p>From Miami Circuit Court; J. T. Cox, Judge.</p> <p>Suit by Joseph Tereba against the Standard Cabinet Manufacturing Company and others. Erom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal. — In Term-Time. — Parties.—Refusal of Coparty to Join in Appeal. — A term-time appeal in -which all the coparties against whom judgment was taken are named as appellants will not he dismissed becausq a part of those so named file their refusal to join as appellants, pp. 16, 17.</p> <p>Contracts. — Assignment.—Acceptance.—Vendor and Purchaser. — The assignee of a contract for the purchase of land, having promised, as a consideration for the assignment, to pay notes given thereunder, he is liable on the notes to the payee though his promise has not been accepted, pp. 17, IS.</p> <p>Evidence. — Identification of Instrument Though Mutilated. — It is proper for a witness to identify a paper as an instrument that was assigned to him, although the instrument exhibited was mutilated, and torn in pieces, p. 20.</p> <p>Vendor and Purchaser. — Contract of Sale. — Assignment.—Possession. —Evidence.—Inanaciionon a contraotfor the sale of land, against the purchaser’s assignee, evidence that the assignee took possession of the land, and the manner in which he used it, is admissible. p. 20.</p> <p>Evidence. — Contract.—Consideration.—The consideration of a written contract may be inquired into by parol, p. 20.</p> <p>Vendor and Purchaser. — Evidence.—Harmless Error. — In an action on a contract for the sale of a stone quarry and quarry machinery, the admission of evidence as to what machinery was on the land is not harmful error, although defendant’s liability did not depend upon the amount of property received, p. 21.</p> <p>Principal and Agent. — Agency Denied. — Ratification.—Evidence.— Whore the authority of persons representing themselves as agents of a certain corporation is denied by the corporation, evidence that such persons so represented themselves while negotiating the contract in controversy is not prejudicial, if their acts were subsequently ratified, p. 21.</p> <p>Bills and Notes. — Action on Notes Assumed by Assignee of Contract. — Demand. — In an action on notes assumed by an assignee of a contract for the sale of land, demand before bringing suit is unnecessary. p. 21.</p>

<p>Appeal and Error. — Joint Assignment of Error. — Separate Motions.— No question is presented upon the ruling of the court upon separate motions for a new trial by a joint assignment of error by all of the appellants, p. 23.</p> <p>Same. — New Trial. — Specification as to Exchmion'of Evidence. — A specification in a motion for a new trial that the court erred in refusing to permit a witness named to answer a certain question, followed by the question, sufficiently presents the court’s ruling, p. 23.</p> <p>Intoxicating Liquors. — Damages for Illegal Sales. — Evidence.—In an action for damages caused by illegal sales of liquor to the husband of relatrix, evidence that relatrix during the months when the sales were alleged to have been made abused and assaulted her husband and attempted to demolish defendant’s saloon with a hatchet is not admissible in mitigation of damages, pp. 23, 24.</p> <p>Appeal and Error.' — Joint Exception. — Separate Assignment of Error.— Exceptions taken by all of the appellants are not available in a separate assignment of errors by one of the appellants, p. 24.</p>

<p>From Allen Circuit Court; Edward O’Rourke, Judge.</p> <p>Action by George Richards against the Government Building & Loan Institution. From a judgment for plaintiff, defendant appeals.</p>

<p>From Wells Circuit Court; E. G. Vaughn, Judge.</p> <p>Suit by Kelley B. Wood and others against Jonn F. Pond and another. From a judgment for plaintiffs, defendant John F. Pond'appeals.</p>

<p>Master and Servant. — Mines and Minerals. — Injury of Miner. — Contributory Negligente. — In an action for injury to a coal miner, tlie evidence showed tliat plaintiff, at his request, was sent to remove slate that had fallen upon the tracks; that in removing the slate he pushed down a prop, without examining the roof of the mine, and slate fell upon him, causing his injury.' He was an experienced miner, and wore a cap with a'miner’s lamp on it, and could see the roof of the mine by the reflection of the light. Held, that plaintiff was guilty of contributory negligence.</p>

From Decatur Circuit Court; F. T. Hord, Judge. Suit by James T. McCoy against Curtis McCoy and others. Defendant Arabella McCoy filed cross-complaint. From judgments for plaintiff and cross-complainant, defendants- Curtis McCoy and another appeal.

<p>From Orange Circuit Court, Thomas B. Buskirk, Judge.</p> <p>Action by Dath Steele, administrator of tbe estate of William Mason, deceased, against the Norton-Reed Stone Company. From a judgment for plaintiff, defendant appeals.</p>

From Perry Circuit Court; JE. M. Swan, Judge. Action by Louise Sweeney against John M. Webb. From a judgment for defendant on his cross-complaint, the defendant appeals, asserting that the judgment is too small.

<p>Negligence.— Contributory Negligence. — Dangerous Premises. — Injury of Child at Play. — In an action against a manufacturing company for injuries sustained by a twelve year old child, it appeared that defendant’s plant and grounds were located in a populous part of a city; that the grounds were covered with a thick growth of trees and bushes, and a barbed-wire fence, out of repair, and broken in many places, leaving large spaces through which access might be had to the grounds, ran among the trees along the avenue adjoining the grounds. The children of the neighborhood were accustomed to play in the grove on both sides of the fence, and, on the day of the injury, plaintiff and a number of her playmates were playing in the grove, and having no knowledge of the existence of the fence plaintiff ran into same and was severely injured. Held, that both the question as to the negligence of the defendant and the question whether plaintiff proximately contributed to the injury by her own fault were questions of fact for 'the determination of the jury.</p>

<p>Railroads. — Defective Crossing. — Sidewalk.—Pleading.—An averment in a complaint, in an action against a railroad company for personal injuries sustained because of a defective sidewalk maintained by defendant at its crossing, “that on the southwesterly side of said Monroe street, and over the right of way of the defendant to the first track north, was constructed for foot passage a sidewalk,” etc., sufficiently showed that the sidewalk was in the street, p. 65.</p> <p>Same. — Defective Crossing. — Notice.—Where a complaint, in an action against a railroad company for personal injuries sustained by plaintiff because of a defective, wooden crossing maintained by defendant, alleged that defendant had permitted the crossing to become worn, rotten and ont of repair for a month before the injury, it was not necessary to allege notice thereof to defendant, pp. 65, 66.</p> <p>Railroads. — Defective Crossing. — Negligence.—Complaint.—In an action against a railroad company for an injury sustained because of a defective crossing, the complaint alleged that on and before the day of the injury defendant negligently permitted the crossing to become worn and ont of repair so that the boards of the sidewalk, by reason of age and weather, became thin and water-soaked, and that plaintiff, in 'walking over “said crossing,” and not knowing the condition thereof, stepped on one of the boards, which broke under his weight and allowed his foot to go through, “by reason whereof” he was thrown to the ground, and, by reason of the fall, so caused, he suffered physical injuries described. Held, that the complaint sufficiently showed negligence on the part of the defendant, that the' injury occurred on account •of the defective condition of the sidewalk, and that defendant’s negligence was the proximate cause of the injury, pp. 66-72.</p> <p>Negligence. — Contributory Negligence. —Pleading. —Statutes. — Section 359a Burns 1901 making it unnecessary for plaintiff in an action for personal injuries to allege or prove freedom from contributory negligence applies to an action commenced after the taking effect of the act, though the cause of action arose before the statute became effective, p. 72.</p>

<p>Prom Elkhart Circuit Court; J. D. Ferrall, Judge.</p> <p>Action by Frieda Stutsman against Jemima Stutsman. From a judgment for plaintiff, defendant appeals.</p>

<p>Municipal Corporations. — Streets. — Dedication. — Evidence. — The failure of the city to repair a street or exercise control over it, though admissible in evidence on the issue as to the existence of the street, is not conclusive evidence against former dedication. p. 85.</p> <p>Same. — Streets.—Dedication.—Evidence.—The action of the city in instituting condemnation proceedings for the opening of a street and the assessment of benefits and damages on the theory that no street existed, while admissible on the issue as to the existence of the street, is not conclusive evidence of former dedication, p. 85.</p> <p>Same. — Streets.—Dedication.—Mere permissive use of land as a street floes not of itself constitute a dedication thereof, p. 85,</p> <p>Municipal Corporations. — Streets.—Dedication.—The intent to dedi- ■ cate need not actually exist, but must appear to exist, p. 85. - ’</p> <p>Same. — Streets.—Dedication.—Acceptance.—User.—The long continued use of a street by the public is sufficient evidence of acceptance. p. 87.</p> <p>Same. — Streets.—Dedication.—Intention.—Where no express dedication appears, the question whether there was an intent to dedicate becomes a mingled one of law and fact. p. 87.</p>

<p>Intoxicating Liquors. — Unlawful Sales. — Damages for Death of Husband. — An action for damages may be sustained under §7288 Burns 1901 by a widow for the loss of her means of support resulting from the death of her husband caused by use of intoxicating liquors furnished him in violation of law. pp. 89, 90.</p> <p>Same. — Unlawful Sales. — Damages for Death of Husband. — Proximate Cause. — The sale of liquor*to one while intoxicated was the'proximate cause of his death, where it was shown that by reason of such intoxication he lost his reason and judgment and all care of himself, and, while drunk and unconscious, contracted a severe cold, although the direct cause of his death was pneumonia. p. 91.</p> <p>Same. — Unlawful Sales. — Damages for Death Resulting from Exposure.— Proximate Cause. — Disease brought about through exposure by a person unable to care for himself because of intoxication is neither extraordinary nor unnatural, and is, within the meaning of the law, the ordinary and natural result of the wrongful sale of liquor to an intoxicated person, p. 91.</p> <p>Same. — Unlawful Sales. — Damages for Loss of Support. — Sales by Others. —In an action against a saloon-keeper by a woman for the death of her husband and the consequent loss of his Support caused by drinking liquor sold to him unlawfully, it is not necessary to show that all the liquor which produced the intoxication was furnished by defendant, p. 92.</p>

<p>Pleading. — Misjqinder of Parlies. — Pemumr.—The question of misjoinder of parties is not raised by demurrer for want of facts. p. 95. *</p> <p>Appeal and Error. — Misjoinder of Causes of Action. — A judgment will not be reversed for"misjoinder of canses of action, p. 95.</p> <p>Counties. — Township Assessors. — Action for Services. — A complaint by township assessors against the board of county commissioners alleging that the county is indebted to each of them, and that • the board, upon proper claim filed with it, has rejected sncli claims, states a cause of action, pp. 96, 97.</p> <p>Trial. — Misconduct of Counsel. — The action of plaintiff’s attorney in exhibiting to the jury in his closing argument an instruction prepared by defendant’s counsel containing an interlineation by the court, and making comments as to the preparation of the instruction by counsel, and the change therein by the court, was not such misconduct as to warrant a reversal, pp. 97, 98.</p> <p>Evidence. — Expert Testimony. — Time Required for Making Assessments.— The questions as to how long it would take to assess certain townships for taxation and as to how many persons an assessor could assess in one day are not proper subjects for expert testimony. pp. 99, 100.</p> <p>New Trial. — Joint Assignment. — Appeal and Error. — Where evidence excluded applied to but two of plaintiffs a motion for a new trial as to all of the plaintiffs based upon such ruling is not available. p. 100.</p>

From Superior Court of Marion County (59,095); Vinson Carter, Judge. Suit for partition by Llora White and others against George W. Brown and others. From a judgment for plaintiffs, defendants appeal.

<p>Trusts. — Express Trusts. — Deeds.—A deed conveying certain land “in trust,” without stating the purpose of the trust or any bene- . ficiary, is insufficient under §3391 Burns 1901 to create an express trust, pp. 109, 110.</p> <p>Same. — Deeds.-—Mortgage by Agreement. — Whore a widow conveyed certain lands to plaintiff in trust to pay the debts of her husband, the conveyance, after the payment of such debts, could not be changed by parol agreement to a mortgage upon the lands remaining unsold to indemnify the trustee or grantee against loss by reason of his future suretyship of grantor, pp. 110, 111.</p> <p>Contracts. — Within Statute of Frauds.- — Oral Modification.- — A contract, which, being within the statute of frauds, has been made in compliance therewith, can not be orally modified, p. 111.</p> <p>Principal and Surety. — Bills and Notes. — While a surety on a promissory note assumes .liability thereon to the payee from the time of executing the note, yet until lie has been compelled to pay the debt, or has sustained some loss by reason of'his surety-ship, he has no cause of action against his principal, even though the principal be insolvent and wholly unable to discharge the debt or any part of it. pp. Ill, 112.</p> <p>Executors and Administrators. — Claims. — Complaint.— Principal and Surety. — A complaint alleging that claimant was compelled. to pay and did pay, on a certain date, for the intestate, as her surety, a specified amount on a note, sufficiently states a claim against the decedent’s estate, p. 112.</p>

<p>Negligenc®. — Contributory Negligence. — Railroads.—Injury at Crossing. —An employe was riding slowly along the railroad track on a speeder inspecting the wires and pipes of the interlocking appliances where several roads crossed and looked and listened for trains when he was about seventy-five feet from the center of the crossing, and again when lie was about thirty-five feet from the crossing, but did not look before going upon the track, though he had an unobstructed view, and could have stopped the speeder within a distance of one foot. Held, that he was guilty of negligence precluding a recovery for injuries sustained by being struck by a train which was backing without a brakeman in proper position on the rear car. -</p>

<p>Erom Bartholomew Circuit Court; F. T. Ford, Judge.</p> <p>Action by the People’s State Bank of Brownstown against ITalleek Jones. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Bill of Exceptions. — Identification.—A bill of exceptions is sufficiently identified where the order-book entry shows the filing of the bill of exceptions containing the evidence, the certificate of the clerk shows that the transcript contains the original bill of exceptions, and the certificate of the trial judge, attached to the bill,, shows that it is the bill of exceptions and that it contains all the evidence, pp. 123, 124.</p> <p>Same. — Instructions.—Record.—Where all of the instructions given and refused were, on motion, ordered filed and made a part of the record without bills of exceptions, and the certificate of the clerk shows that the transcript contains copies of all the instructions given and refused, and exceptions thereto, the instructions are in the record, though the clerk does not certify that the transcript contains a full and complete copy of the bills of exceptions containing the instructions, p. 121j..</p> <p>Evidence. — Hearsay.■—■Principal and Agent. — In an action for personal injuries caused by the alleged negligence of defendant’s minor son in riding a horse against plaintiff, evidence that the boy told witness, before the accident, 'that he was on an errand for his father was inadmissible, pp. 125, 126,</p> <p>Damages.' — Instruction.—Evidence.—Where in the trial of an action for personal injuries facts were given in evidence which were not proper to he considered in estimating damages, an instruction which, after stating correctly the facts proper for the jury to consider in determining the amount of damages they would award plaintiff, in case they found for her, added, “and all the facts and circumstances proved in the case,” was erroneous. pp. 127-129.</p>

<p>Appeal and Error. — Harmless Error. — Refusal of Instruction Cured by Answers to Interrogatories. — The refusal of the court to instruct the jury, in an action against a street railroad company for personal injuries sustained by plaintiff by reason of the alleged negligence of defendant in suddenly starting the car while plaintiff was attempting to alight, that if the accident did not happen as alleged, but that she attempted to alight while the car was in motion, there could be no recovery, was harmless, where the answers to interrogatories show that the car was not in motion when she attempted to get off. p. 131.</p> <p>Negligence. — Street Railroads. — Carriers.—The action of a motorman in suddenly starting a street car while a passenger is in the act of alighting is negligence, p. 132.</p> <p>Carriers. — Injury to Passenger. — Instruction.—Street Railroads. — In an action by a passenger against a street railroad company for injuries sustained by suddenly starting the car while she was attempting to alight, an instruction that while a common carrier is not an insurer of the safety of its passengers, the law exacts of it the highest practicable care for the safety of its passengers in the operation of its cars, and stopping and starting the same to enable passengers to get on and off, and for any failure to exercise such care, and for slight neglect of its duty in this respect, resulting in an accident or injury, it is liable to a passenger, who is herself without fault, for an injury sustained, as the proximate result of such negligence, states the law correctly, p. 133.</p> <p>Trial. — Intemgaiories. —Instruction. — Carriers. — Street Railroads. —An instruction in an action by a passenger against a street railroad company for injuries sustained while alighting from a car, that if the burden was upon either party to show any particular fact called for in any question, such fact should be established by a fair preponderance of the evidence to warrant answering the question as showing the fact established, and if there was no preponderance of evidence, then such fact would not be proved, and the answer should be in the negative, was proper, since the burden was on defendant as to the question of contributory negligence. pip. 133, 134.</p>

<p>Negligence. — Contributory Negligence.— Pleading. — Where a complaint shows that the plaintiff was guilty of contributory negligence, notwithstanding the fact that it also shows the defendant was guilty of the negligence which caused the injury, it is 'insufficient as against demurrer, p. 135.</p> <p>Same. — Contributory Negligence. —Pleading. —The presumption indulged in favor of the plaintiff that he was free from negligence contributing to his injuries sued for will he overcome by specific averments of facts which show that he knew, or had opportunity to know, of the danger, and, knowing of the danger, did not use care commensurate therewith, p. 135.</p> <p>Same.— Contributing Negligence. — Question of Fact. — Where, in an action for damages for personal injuries sustained by plaintiff as a result of falling into a ditch, the evidence was conflicting as to whether plaintiff knew of the existence of the ditch, at the point where he received his injuries, the question was for the determination of the jury. p. 136.</p>

<p>Appeal and Error. — Assignment of Error. — Parties.—A joint assignment of error hy plaintiff and his wife upon the action of the court in overruling their demurrer to defendant’s cross-complaint, and the overruling of plaintiff’s motion for a new trial, presents no question on appeal, where the plaintiff alone excepted to the ruling on the demurrer and alone moved for a new trial.</p>

<p>Municipal Corporations. — Street Improvements. — Assessment of Property by Common Council Not Assessed by Commissioners. — Where in a street improvement proceeding under §3623a et seq. Burns 1901, the commissioners in their first report described and reported as affected by the improvement two lots owned by plaintiff, not adjoining the street to be improved, and, at the hearing assessed the entire cost of the improvejnent upon the abutting property, and no part tliereof against plaintiff’s property, an assessment thereafter made by the common council against plaintiff’s said property, under a notice “to the property owners on Fourteenth street * * * affected by the construction of said street” was illegal, and the assessment made against such property was invalid.</p>

Erom Allen Circuit Court; Edward O’Rourke, Judge. Action by the State, on the relation of John H. Bran-nan, administrator de bonis non of the estate of James Franklin Smothers, deceased, against Robert L. Romy and another. From a judgment in favor of plaintiff, defendants appeal.

<p>Adverse Possession. — Findings.—Whether possession of land is adverse is not properly a conclusion of law but an ultimate fact. p. 160.</p> <p>Same. — Mistake.-—Division -Line. — The fact that one claiming title to a strip of land by adverse possession based his claim upon the" mistake of the parties that the line fence built by them represented the true line will not prevent the running of the statute. p. 160.</p> <p>Same. — Boundaries.—Division Lirie. — Where plaintiff held possession of land up to a division fence for thirty-two years, exercising exclusive dominio'n over it, claiming to be the owner, and that the fence was the true boundary, his possession was adverse, pp. 160, 161.</p> <p>Same. — Claim of Ownership. — Where one holds a disputed strip of land provisionally, or disclaims ownership except to the true " line, wherever that may be, his possession beyond the true line is not adverse, pp. 160, 161.</p> <p>Same . — Claim of Oionership. — Division Line. — Fences.—A finding in a suit to quiet title to a strip of land claimed by adverse possession that plaintiff did not claim to be the owner of any portion of the land beyond the true line must be considered in connection with his further claim that a fence constructed by the owners was on the true line. p. 161.</p>

<p>Criminal Law. — Inquisition. —Information. —Intoxicating Liquor. —An information based upon an affidavit made by a witness before a justice of the peace under a subpoena commanding the witness to appear before such justice of the peace and answer questions concerning violations of the criminal laws of the State, as provided by §7811 Burns 1901,(charging the sale of intoxicating liquor without a license, and filed with the clerk of the circuit court, without the knowledge of the witness, is not bad against a plea in abatement challenging the jurisdiction of the court. p. 164.</p> <p>Criminal Law. — Inquisition.—Contempt.—The refusal of a witness to appear before a justice of the peace in response to a subpoena issued under §7811 Burns 1901 and answer concerning violations of criminal laws does not amount to a contempt of court, p. 164.</p> <p>Intoxicating Liquors. — Sales Without License. — Evidence.—Evidence in a prosecution for selling intoxicating liquor without a license that the prosecuting witness was in defendant's place of business “along in June and April” of the year 1903; that he asked for hop ale, was waited upon by defendant, got what he called for, and drank it, and that it was intoxicating, fixes the time with sufficient definiteness, p. 165.</p> <p>Same. — Evidence.—Where in a prosecution for selling intoxicating liquors without a license'the prosecuting witness testified to purchasing .hop ale, testimony of a witness that he bought and, drank hop ale at other places than at defendant’s, and that it was intoxicating, was competent for the purpose of showing that hop ale was intoxicating liquor, p. 165.</p>

From Huntington Circuit Court; Levi Mock, Special Judge. Action of Franziska Zeller and others against Anna B. Zeller, executrix of the will of William A. Zeller, deceased. From a judgment for defendant, plaintiff Franziska Zeller appeals.

<p>Appeal and Error. — Evidence.—Conflict.—A verdict will not be set aside on conflicting evidence, p. 171.</p> <p>Same. — Harmless Error. — A cause will not be reversed because of an alleged erroneous instruction, where the answers to interrogatories affirmatively show that appellants were not harmed by the instruction. p. 171.</p> <p>Trial. — Interrogatories and Answers. — Conflict.—In an action to recover the possession of certain promissory notes the following interrogatories, in substance, and answers were returned: “Had not the payee <5f the notes pledged them to plaintiffs as collateral security? Answer: No.” “Did not the plaintiffs after the notes had been pledged to them keep said notes in their safe and under their control until August 17, 1901? Answer:' Yes.” Hdd, that the answers are not in conflict, since the latter answer relates to possession of the notes and not to the question of a pledge of them having been made. Wiley, P. J., dissents, pp. 171, 172.</p>

<p>Judgment. — Fraud.—Collateral Attack. — Where a judgment has been procured by fraud, a proceeding to vacate it upon that ground is a direct, and not a collateral, attack, p. 18/f.</p> <p>Same. — Jurisdiction.—Collateral Attack. — A judgment can not be collaterally attacked for lack of jurisdiction .when the infirmity does not appear upon the face of the record, p. 184.</p> <p>Same. — Fraud.—Vacating'.—A judgment can not be vacated for fraud in the cause of action, but may be vacated for fraud in obtaining the judgment, p. 186.</p> <p>Same. — Summons.—False Return. — Fraud.—A suit to vacate a judgment for fraud based upon the false return of the officer as to service of the summons can not be maintained, where no fraud is shown on the part of the judgment plaintiff, pp. 186-188.</p>

<p>Erom Clay Circuit Court; P. O. Colliver, Judge.</p> <p>Action by Thomas W. Jones against the Republic Iron & Steel Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Wells Circuit Court; 8. W. Cantwell, Special Judge.</p> <p>Action by David Clianey. against the Ohio & Indiana Oil Company. From a judgment for defendant, plaintiff appeals.</p>

From Fulton Circuit Court; A. G. Gapron, Judge. Independent action by Sylvester Bertram and others against the' State, on the relation of the Lowell Dredge Company and others, for a new trial. From a judgment on demurrer to the complaint, plaintiff appeals.

<p>Erom Adams Circuit Court; Abram Simmons, Special J udge.</p> <p>Action by Stephen A. D. Whipple and another against the Citizens, Gas & Oil Mining Company. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>From Howard Superior Court; Hiram Brownlee, Judge.</p> <p>Action by Lemuel S. Todd against tbe Milwaukee Fire Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Laporte Superior Court; IT. B. Tuthill, Judge.</p> <p>Suit by Jolin C. Schultz against Josepb Shapiro. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Jasper Circuit Court; 8. P. Thompson, Judge.</p> <p>Action by Barney Clark against William T. Beahler. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Jasper Circuit Court; V. S. Reiter, Special Judge.</p> <p>Suit Ly Ben Hart- against Joseph Sigman and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Erom St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Action by Augusta Kirby against the city of Mishawaka. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Amended Complaint. — Leave of Court. — Nothing appearing to the contrary it will be presumed on appeal that leave was given to file an amended complaint, p. 838.</p> <p>Same. — Amended Complaint Instead of Supplemental Complaint. — Where in an action to recover rent an amended complaint instead of a supplemental complaint was-filed for the recovery of rent accruing after the action was brought and defendant appeared, and, without objection, filed answer and went to trial upon the issue thus presented, it will be held that the parties treated the action as having been brought at the time the amended complaint was filed, pp. 838, 839.</p>

<p>New Trial. — Newly Discovered Evidence. — A new trial on account of newly discovered evidence, under §668 Burns 1901, should have been granted upon an affidavit in which it was shown that if the witness had testified a different result might have resulted, and that the witness denied knowledge of the case until after the trial.</p>

<p>From Superior Court of Marion County (63,541) ; Viii-1 son Carter, Judge.</p> <p>Action by William E. Henderson against Thomas Ashley and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Nuisance. — High Fence Not a Public Nuisance. — The erection and maintenance of a fenoe ten or twelve feet high on one’s own property, shutting off the view, light, and air of an adjoining property owner, is not a public nuisance within the meaning of §2154 Burns 1901, though the fence was erected through motives of malice.</p>

<p>From Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Action by James S. Eads against the Hammond, "Whiting & East Chicago Electric Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Action by the Fidelity & Deposit Company of Maryland against the South Bend Pulley Company and another. From a judgment for plaintiff, defendants appeal.</p>

Erom Allen Circuit Court; TV. J. Vesey, Special Judge. Suit by John W. White, administrator of the estate of James B. White, deceased, against George Godfrey and others'. Erom a judgment for plaintiff, defendants appeal.

<p>Erom Allen Circuit Court; Edward O’Rourke, J udge.</p> <p>Action by Elizabeth Dinkle against the United Brotherhood of Carpenters and Joiners of America. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Licenses. — Parol License lo Remove Timber. — Performance.—Revocation. —Contract.—Forfeiture.—A parol license to cut timber upon the lands of another which has been acted upon and granted upon a consideration that has been performed can not be revoked, for failure of the licensee to remove the timber within' the time limited, where there was no forfeiture clause in the contract, and the licensee was not notified that the timber must be removed within the time fixed by the contract, pp. 283-286. 1</p> <p>Pleading. — Filing of Additional Pleadings. — Discretion of Court. — The filing of additional pleadings is largely within the discretion of the court; but when the justice of the case clearly requires that leave should be granted, it is error to refuse, p. 286.</p> <p>Same. — Refusal of Court to Permit Filing of Additional Answer. — In a suit to enjoin defendant from removing timber from plaintiff’s land, the plaintiff tostifie,d to the granting of a parol license to defendant under which the latter was entitled to remove the timber. Before the examination of the witnesses was concluded, the defendant tendered to the court, and asked leave to file, in addition to his answer of general denial, a special answer setting up the license and claiming the right to remove the timber thereunder. Held, that the court’s refusal to permit the filing of the additional answer was reversible error, p. 286.</p>

<p>From Superior Court of Marion County (51,110); J. L. McMaster, Judge.</p> <p>Action by the Indiana & Ohio Live Stock Iusurance Company against Conrad Bender and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Street Railroads. — Collision with Cyclist. — Contributory Negligence.— Plaintiff, who was riding a bicycle near a street car track, was overtaken by a street car, and was knocked from his bicycle and injured. Plaintiff was going from five to six miles an hour. There was nothing to prevent plaintiff from riding further from the track except the roughness of the street. He could have seen the approaching car if he had looked behind him, but for a distance of 300 feet he had failed so to look, and did not know of the approaching car. At a distance of 300 feet plaintiff - could have heard the ear if he had listened. The motorman in charge of the car saw plaintiff and had reason to believe that unless he slackened the speed of his car, or gave plaintiff warning that the car was liable to come in contact with plaintiff, but failed to slacken the speed of his car or sound the gong. Held, that plain- -. tiff was guilty of contributory negligence, and could not recover. Roby and Black, JJ., dissent. ■ .</p>

<p>Street Railroads. — Passenger upon Alighting Becomes a Traveler.— One who alights from a street car on which he has been a passenger at once becomes a traveler upon the public thoroughfare, charged with the duty of exercising due care. p. 315.</p> <p>Same. — Injury to Pedestrian. — Failure to Look and Listen. — Contributory Negligence. — Plaintiff alighted from a street car on which she had been a passenger, and, without looking and listening for approaching cars, walked to the rear of a car and upon a parallel track five feet distant on which cars traveled in the opposite direction, and was injured. Meld, that plaintiff who was familiar with the manner in which the cars were operated was guilty of contributory negligence and could not recover, pp. 312-317.</p>

<p>Appeal and Error. — Bill of Exceptions. — Authentication.—A bill of exceptions is not sufficiently authenticated, where the only certificate of the judge consists of the words, “Presented to me for signature December 20, 1901.” pp. SSI, 332.</p> <p>New Trial. — Claim Against Decedent’s Estate. — Misconduct of Administrator in Assisting Plaintiff. — Plaintiff filed a claim against a decedent’s estate of which U. was the administrator. After trial and verdict for plaintiff, U., resigned the trust and L., sole heir at law, was appointed administrator de bonis non. There was filed a motion for a new trial on the ground that plaintiff had been guilty of misconduct in procuring the administrator to hunt up evidence for plaintiff and suppress evidence for the defense. Affidavits supporting the motion also showed that during the trial IT. had frequent conferences with plaintiff and her attorneys. Counter-affidavits setting forth the justness of the claim sued for and a denial that U. had hunted up evidence on behalf of the plaintiff were filed. Held, that since it appeared that L. and his Counsel were present during the trial and made no objection to the conduct of U. and the plaintiff, and that, since no material evidence was shown to have been procured or suppressed through the efforts of U., a new trial was properly denied, pp. 332-337.</p>

<p>From Yermillion Circuit Court; A. K. White, Judge.</p> <p>Action by Lysander Shew against Irene Casto and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Huntington Circuit Court; W. J. Vesey, Special Judge.</p> <p>Action by Mary A. Lusch against James Pool and others. Judgment for defendants, and plaintiff appeals.</p>

Erom Vanderburgh Circuit Court; H. A. Mattison, 'Judge. Proceeding by Charles Hille against John A. Neale, township trustee, to be relieved from an assessment for cleaning and repairing a ditch. Erom a judgment for defendant, plaintiff appeals.

<p>Parent and Child. — Action for Death'of Child. — Desertion by Father.— Action by Mother. — The right of a mother to maintain an action for the death of her son, the father having deserted his family, is not a question of capacity, hut a question of right conferred hy statute (§267 Burns 1901) upon the wife and mother under the conditions named, p. 359.</p> <p>Same. — Death of Child. — Right of Mother to Maintain Action. — Pleading. —The right of a mother to maintain an action for the death of her son upon the desertion of the husband and father of his family is an issuable fact which should he averred in the complaint and proved, pp. 359, 360.</p> <p>Master and Servant. — Assumption of Risk. — A servant assumes not only the ordinary dangers of bis employment which are known to him, hut also such as hy the exercise of ordinary diligence could have been known to him. p. 361.</p> <p>Same. — Assumption of Risk. — More Hazardous Work. — Complaint.—A complaint against the master for the death of. a servant which proceeds upon the theory that deceased, at the time of the injury resulting in his death, was tínder orders of the master, engaged in service more hazardous than that of his regular duties, and therefore did not assume the risks incident thereto, must allege that decedent had no knowledge of the danger which confronted him and caused his death, pp.- 361, 363.</p>

<p>Erom Randolph Circuit Court; A. O. Marsh, Judge.</p> <p>Action by Ruth W. Sutton against Lewis K. Smith and others. From a judgment for plaintiff, Lewis K. Smith appeals.</p>

From Hamilton Circuit Court;. J. P. Kemp, Spócial Judge. Suit by Albert Fry and others against John Lawson and others for partition and to quiet title. From a decree for defendants, plaintiffs appeal.

<p>Counties. — Action by Taxpayers for Recovery of Illegal Allowances.— Expenses and Attorney’s Fees. — Defendants as citizens and taxpayers prosecuted certain actions for the recovery, for the use and benefit of the county, money paid by the county commissioners upon alleged illegal claims, and, upon the recovery and collection of the judgments, retained therefrom the expenses incurred, including attorney’s fees, and paid the balance to the county, making a full report of their doings. The board of commissioners accepted and retained the amount so paid, but refused to approve the report, and brought suit for. the amount retained by defendants. Held, that defendants had the right to retain the amount of the expenses out of the fund before parting with it, each item being open to investigation and proof as to correctness.</p>

From Allen Circuit Court; Edward O’Rourke, Judge. Action by John W. White, as ■ administrator of the estate of James B. White, deceased, to revive and modify a judgment. Samuel R. Alden filed a cross-complaint. From a judgment against cross-complainant, he appeals.

<p>Trial. — Complaint.— Uncertainty. — Remedy.—Where the allegations of a complaint are uncertain, the remedy is by motion to make more specific, p. 401.</p> <p>Same. — Misjoinder of Causes. — Remedy.—Where more than one cause of action is stated in a paragraph of complaint, the remedy is hy motion to separate, or by demurrer for misjoinder, pp. 401, 402.</p> <p>Master and Servant. — Failure to Guard Machinery. — Statutory Duty. —Complaint.—In an action hy an employe for personal injuries resulting from the failure of defendant to guard machinery as required by statute, it is sufficient if the complaint allege such failure in the language of tho statute, p. 40s.</p> <p>Appeal and Error. — Theory of Trial Court, How Determined. — The Appellate Court will look to the entire record to determine the theory on which tho case was tried, p. 40s.</p> <p>Same. — Theory of Trial Court. — When the facts pleaded may he construed as proceeding upon different theories in the statement of a canse of action, the construction placed upon them by the trial court will be the theory upon which they will he considered on appeal, pp. 4OS-404.</p> <p>Master and Servant. — Personal Injuries. — Failure to Guard Machinery. — Instruction.—In an action by an employe for personal injuries sustained while using á machine not guarded as required by statute, an instruction reciting the statutory duty of the employer, and stating that if the machine was not properly guarded its use by plaintiff must not be regarded as negligence, is not canse for a reversal of a judgment for plaintiff, where the jury were told in other instructions that the plaintiff could not recover if his own negligence contributed to the injury, pp. 405, 4OG.</p> <p>Same. — Failure to Guard Machinery. — Duly of Employe. — Where it is the statutory duty of the employer to .guard machinery for the protection of employes, an employe is not required to furnish or adjust such guard, or to request his employer to do bo. p. 407.</p> <p>Same. — Injury Caused by Defective Guard. — Evidence.—Question Calling for Conclusion. — Harmless Error. — In an action by an employe for personal injuries sustained while using a machine not guarded as required by statute, where, the defense was that a proper guard had been furnished, and the construction of the guard was particularly described to the jury, it is not reversible error for the plaintiff to testify in his own behalf as to the class of work the guard was made to he used on, since it 'was for the jury to determine whether the guard was proper or not. pp. 4.O8, 409.</p> <p>Same. — Failure of Employer to Guard Machinery. — Evidence.—Notice of Factory Inspector. — Letter.—On the trial of an action for injuries resulting from the failure of a master to guard machinery as required by statute, a letter from the state factory inspector notifying the defendant to provide guards for its machines, including the particular kind of a machine used by plaintiff, is admissible in evidence, though the defendant had, after receiving the letter, changed its name, and the notice contained in the letter was not the notice contemplated by the statute, pp. 409-411.</p> <p>Same. — Failure to Guard Machinery. — Evidence.—Complaints by Employe. —Where, on the trial of an action by an employe for injuries resulting from a failure of his employer to guard machinery, the plaintiff having testified that he had made no complaints, it was not érror to reject testimony offered by the defense showing that no complaints had been made by plaintiff, p. 411-</p> <p>Witnesses. — Laying Foundation for Impeachment. — Improper Question. —Harmless Error. — On the trial of an action by an employe against his employer for personal injuries, a witness for the defense was asked on cross-examination, and for the purpose of laying the foundation for impeaching the witness, whether or not he remembered the circumstance of an agent for an insurance company that had the defendant insured against accidents coming to defendant’s factory after the accident. Held, that the evidence was improper but not reversible error, pp. Jj.ll, 41%.</p> <p>Witnesses. — Duty of Servant in Operating Machine. — Evidence.—It was not error to exclude the testimony of a witness for the defendant relative to the duty of a man operating the particular kind of a machine on which plaintiff was injured, where all of the facts connected with the operation of the machine, and the conduct of plaintiff and defendant as master and servant with reference thereto, had been detailed to the jury. pp. 41s, 41s.</p>

<p>Prom Miami Circuit Court; J. T. Cox, Judge.</p> <p>Action by William Buskirk against the Indiana Manufacturing Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Perry Circuit Court; G. W. Cook, Judge.</p> <p>Action by Henry Rutherford, administrator, against the Prudential Insurance Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>From Clay Circuit Court; P. O. Colliver, Judge.</p> <p>Action by Faustimus Huffman against tbe Evansville & Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Daviess Circuit Court; II. Q. Houghton, Judge.</p> <p>Action by Noah J. Goshorn against the People’s National Bank of Washington. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal and Error. — Reversal of Judgment. — Interest of Party. — A party seeking tlie reversal of a judgment has the burden of showing that his substantial rights were prejudiced by the errors of which he complains, pp. 484, 435.</p> <p>Fraudulent Conveyances. — Attachment.—Death of Defendant. — Substitution of Administrator. — Appeal and Error. — Where in a suit in attachment and to set aside a conveyance as fraudulent the defendant died and his administrator, by order of court, was substituted, the grantee as codefendant can not, on appeal, take advantage of the fact that the complaint does not state a cause of action against the administrator, p. 435.</p> <p>Fraudulent Conveyances. — Complaint.—Allegation of Ownership.— An allegation in a complaint to set aside a conveyance as fraudulent that grantor “was the owner in fee simple of the unencumbered title” is a sufficient allegation of ownership, p. 435.</p> <p>Attachment. — Debt Not Due. — Under §925 Burns 1901 an attaching plaintiff may prosecute his action whether the debt be due or not. p. 435.</p> <p>Same. — Fraud.—Where a father conveyed certain real estate to his son, without consideration, to avoid creditors, and the son, with full knowledge of his father, contracted a debt upon representations that he was the Owner of the real estate thus conveyed to him, the land is liable for the debt. pp. 436, 437.</p> <p>Trial. — Death of Party. — Substitution of Administrator. — Where, pending an action, one of the defendants dies, the court may, upon petition, substitute for such defendant his administrator, p. 438.</p> <p>Attachment. — Motion to Dismiss After Judgment. — A motion to dis'miss attachment proceedings, as against an alleged fraudulent grantee, which was not made until after final judgment, is too late. pp. 438, 439.</p> <p>Same. — Fraudulent Conveyance. — Joint Action. — An action in attachment and to set aside a fraudulent conveyance may be jointly prosecuted, pp. 439, 440.</p> <p>Appeal and Error. — Harmless Firor. — Under the express provisions of §§401, 670 Burns 1901, error which is not prejudicial to the complaining party is not sufficient to reverse a judgment; and where the merits of a cause have been fairly tried and determined, and substantial justice has been done between the parties, a judgment should not be reversed, p. 441.</p>

From Miami Circuit Court; J. T. Cox, Judge. Action by Louisa Waymire, administratrix of the estate of William E. Waymire, deceased, against George R. Chamberlain and others. Erom a judgment for plaintiff*, defendants appeal.

<p>From Vermillion Circuit Court; A. F. White, Judge.</p> <p>Action by Flora Sanders against the Fidelity & Casualty Company of JSTew York. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Joint Assignment of Error. — -A joint assignment of error by three defendants based upon the ruling of the court upon a separate demurrer of one of the defendants, and upon a separate motion for a new trial by the same defendant, presents no question.</p>

From Jay Circuit Court; C. J. Lutz, Special Judge. Proceeding by Eugene Starbuck, treasurer' of Jay county, against Albert Brunson, administrator of the estate of Aaron ~W. Letts, Sr., deceased. From a judgment in favor of plaintiff, defendant'appeals.

<p>From Vanderburgh. Circuit Court, H. A. Mattison, Judge.</p> <p>Action by Henry A. Huff against the T. J. Moss Tie Company. From a judgment for plaintiff, defendant appeals.</p>

Erom Huntington Circuit Court; J. G. Branyan, Judge. Objections by John H. Kratz to the approval of the inventory of Samuel E. Cook as administrator of the estate of Mary A. Kratz, deceased. Erom a judgment dismissing the petition, the petitioner appeals.

<p>From Elkhart Circuit Court; J. W. Adair, Special Judge.</p> <p>Suit by Euel M. Johnson against Henry O. Hodge. From a judgment for plaintiff, defendant appeals. After judgment plaintiff died, and the appeal is prosecuted against Jeannette G-. Johnson and another, as executors.</p>

<p>From Johnson Circuit Court; J. E. McCullough, Special Judge.</p> <p>Action by the Board of Commissioners of Morgan County against William A. Comer. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Suit by.the Wayne International Building & Loan Association against Jack Miller and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Subscriptions. — For Manufacturing Enterprise. — Concealment of Material Facts from Subscriber. — A subscription to a manufacturing enterprise provided that if the owners of certain real estate would locate a factory thereon and plat into lots the remainder, the subscribers would each pay a certain sum for a lot. The persons named as the owners were not in fact the'owners, three, of them having previously conveyed the land to a trustee, but the title was not in such a condition that it was impossible for them to carry out the agreement. Held, that there was not such a concealment or misrepresentation on the part of the promoters as to avoid the contract, pp. 495, 496.</p> <p>Trusts. — Power of Trustee to Convey Land. — Where a declaration of trust provided that the trustee, to whom had been conveyed certain city lots, was to transfer the lots to those entitled to them under their subscriptions in the aid of a factory, such trustee has the legal title with power to convey to the subscribers, and is not merely a nominal trustee, pp. 496, 497.</p> <p>Subscriptions. — Declaration of Trusts. — Power to Convey Land. — Revocation. — Where a declaration of trust directed the trustees to convey certain lots to various persons who should be entitled thereto under their several subscriptions in aid of a factory, and no authority was reserved by the grantors to revoke the power given the trustees, a subsequent writing directing the trustees to make deeds'for lots to whomsoever a person named should direct did not affect the declaration of trust previously executed, p. 497.</p> <p>Same. — For Aid of Factory. — Purchase of Lots. — Distribution by Lot.— Lottery. — A subscription to a manufacturing enterprise provided that the subscribers should pay $100, and each receive a city lot in a certain plat of land. The trustees who held the lots for the purpose were to distribute the lots among the subscribers, by lot, in some fair manner, to be. determined by them. Before the terms of the subscriptions were carried out the proposition was abandoned and a second subscription was signed which referred to the former, but provided that the distribution was to be • made by a committee of four to be named by the subscribers. The method of distribution and the distribution itself were determined and carried out by the subscribers themselves, and was by withdrawing an envelope containing a number of a lot from a box, and an envelope containing the name of a subscriber from another box. Held, that the subscription was not illegal as being in violation of the statute against lotteries, pp. 497-502.</p> <p>Judgment. — Release Without Affecting Liability of Sureties. — For the purpose of converting real estate into cash the sureties on certain judgments which were liens on the land secured the release of the land from the liens in consideration of which they agreed that the proceeds of the sale of the land should be applied on the liens, and that the release should not affect their liability on the judgments, i Held, that the release was conclusive as against the judgment creditor, and that the land was freed from such liens. 2>p. 502, 503.</p> <p>Trusts. — Action by Trustee in Ilis Own Name. — Trustees who are authorized to collect certain subscriptions may sue in their own names for the use of the party for whom the subscription was made. pp. 503, 504.</p> <p>Subscriptions. — Deed.—Execution by Another than Vendor. — One who subscribes $100 for a manufacturing enterprise, on condition that he is to receive a deed for a city lot, can not defeat his subscription on the ground that the deed for the lot was not executed by the vendor, but by a third person, where it appears that he made no objection to receiving the deed from such third person at the time it was tendered, p. 504. ■</p> <p>Same. — Oollection.—Laches.—Estoppel.—Where a subscription in aid of a factory entitled the subscriber to a deed to a city lot when he had paid one half of his subscription, and, relying upon his promise, the factory has been completed according to the contract, and he has not paid anything, nor repudiated his subscription, nor made reply to frequent demands for payment, he must be held to have acquiesced in the delay, and is estopped from claiming that the right to collect the subscription has been lost because of unreasonable delay, pp. 504, 505.</p> <p>Same. — Deed.—Merchantable Title. — Where one makes a subscription for the aid of a factory, and is to receive as a part of the consideration a city lot by perfect title, free from encumbrances, the tender of a merchantable title is a sufficient compliance with the contract, pp. 505, 506. .</p> <p>Tender. — Conditional Tender of Deed. — Where by the terms of a contract to convey land, the grantee was to comply with certain conditions before he was entitled to a deed, a tender of the deed conditioned on a compliance with the contract is sufficient. p. 506.</p> <p>Vendor and Purchaser. — Action for Purchase Money. — Defense.—A vendee who is to receive a perfect title when he has paid one-half the purchase price can not defend an action on the contract when he has neither paid nor tendered any part of the purchase money. pp. 506, 507.</p> <p>Executors and Administrators. —Release of Judgment by Executor. — An executor has general authority to release a judgment lien. p. 507.</p>

<p>Bills and Notes. — Consideration.—Deféndant, a stockholder in a corporation, together with the other stockholders, executed a note, and, as part of the same transaction, defendant and his wife executed a mortgage on certain land to secure same, and delivered the note to plaintiff who was also a stockholder in the corporation. Plaintiff discounted the note at a bank, and the proceeds thereof passed to the credit of the corporation. Thereafter plaintiff becoming liable to the bank as indorser, paid the note and sought the enforcement thereof under the mortgage. Held, that defendants can not be heard to complain on the ground of inadequacy or want of consideration, pp. 608, 609.</p> <p>Same. — Parties to Note. — Form of Note. — Parol Evidence. — The mere form of a note does not necessarily determine the relations to the note of the parties whose names appear on the note. The actual relation may be shown by parol evidence, p. 510.</p> <p>Appeal and Error. — Waiver of Mr or. — Assignments of error not discussed by counsel are deemed waived, p. 510. ’</p>

<p>From the' Superior Court of Marion County (62,826); Vinson Carter, Judge.</p> <p>Action by J. Harry Roberts against William F. Koss and others. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Appeal and Error. — Record.—Amended Pleading. — "Where a complaint was amended, the original ceased to be a part of the record on appeal, it not having been brought in by bill of exceptions or order of court; and it was not within the province of the clerk in such case to indicate what portion of the complaint was original and what portion was matter introduced by amendment, but it was his duty, under §662 Burns 1901, to certify the amended pleading only. pp. 520,_ 521.</p> <p>Same. — Record.—Amendment of Pleading. — Ansvjer.—No question ■ is presented on appeal upon the action of the court in sustaining a demurrer to an answer, where the complaint to which the answer was addressed was amended and the answer was not refiled. p. 521.</p> <p>Same. — Record.—Pleading.—“Where demurrers addressed to several paragraphs of pleading were sustained as to part, and overruled as to others, such rulings can not be-reviewed on appeal, whore the paragraphs held sufficient were dismissed by the pleader and are - not in the record; since the paragraphs in the record to which demurrers were sustained may have been regarded properly by the court as presenting no question that was not as effectually presented by another paragraph of pleading held sufficient on demurrer. pp. 521, 522.</p>

From Clinton Circuit Court; J. V. Kent, Judge. Action by the Union Trust Company, and another, administrators of the estate of John Thieme, deceased, against John II. Thieme, trustee, and others. From a judgment for plaintiffs, defendants appeal.

<p>From Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Action by Elizabeth Groves against Zachariah T. Hobbs. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Judgment. — Execution.—Estates by Entireties. — Lands Purchased with Proceeds from Other I,ands. — Defendant sold and conveyed certain real estate to plaintiff and used a portion of the proceeds in part payment of other real estate purchased, the title to which was in defendant and his wife as tenants by entireties. Defendant recovered a judgment against* a railroad company that had constructed its road upon the land purchased and held by himself and wife by entireties. The land conveyed by defendant to plaintiff was encumbered, and plaintiff recovered a judgment against defendant for breach of warranty and sought, by proceedings supplementary, to reach the judgment recovered by defendant against the railroad company. Held, that the judgment was not subject to the execution.</p>

<p>Mortgages. — Priority.—Waiver.—Conditions.—A vendor, holding a purchase-money mortgage, in order to enable vendee to secure a loan to build a house, executed an instrument reciting such facts, and stating therein, “I hereby waive the lien of my said mortgage and make it second and junior to the lien of a mortgage” executed by vendee to secure the loan to build the house. The instrument contained' further provisions that a house should be erected at a certain cost, within a certain time, free from liens. Mechanics’ liens were filed against the house, taxes became delinquent, and the mortgagor failed to pay the first coupon interest note, and suit was brought to foreclose the mortgage. The vendor filed a cross-complaint seeking the enforcement of his mortgage as a prior lien on the ground that priority had been waived by him on conditions, and that such conditions had been broken. Held, that there was no failure of consideration upon which the waiver was executed and that the contract of waiver was not dependent upon the provision as to liens, pp. S4O-54S.</p> <p>Same. — Waiver of Priority. — Where a mortgagee executed a waiver of priority in-favor .of a mdrtgage executed for a loan with which to construct a house on the mortgaged property the holder of the second mortgage is entitled to priority only to the extent its money was so applied, and is not entitled to an amount retained, without the knowledge of the former, for commission on loan, insurance bn building, and expense incident to the loan. p. 546.</p>

<p>Death by Wrongful Act. — Action for Benefit of Next of Kin.-^Presumption as to Pecuniary Loss. — "Where an action for death hy wrongful act is brought for the benefit of the brothers and sisters and nephews and nieces of the decedent, the presumption that a pecuniary loss in some amount has been sustained does not obtain as in actions for the death of a husband and father brought for the benefit of the wife and children, pp. 548, 549.</p> <p>Damages. — Instruction.—Death hy Wrongful Act. — An instruction in an action for death by wrongful act that “the jury may estimate such pecuniary damages from the facts proved, in connection with their own knowledge and experience which they are supposed to possess in common with the generality of mankind, ’ ’ is erroneous as informing the jury, in effect, that, in estimating the pecuniary damages, they may consider something in addition to the facts proved, pp. 548, 549.</p> <p>Same. — Instruction.—Death hy Wrongful Act. — An instruction in- an action for death by wrongful act, brought for the benefit of the brothers and sisters and nephews and nieces of decedent, that the jury in estimating the pecuniary loss might take into consideration the probable or even possible benefits which might result to the next of kin from the life of decedent is erroneous. - pp. 549, 550.</p>

<p>Vendor and Purchaser. — Breach of Warranty. — Instruction.—Where in an action for breach of warranty the first paragraph of complaint alleged the execution of the deed and the failure of title to part of the land conveyed, and the second paragraph charged fraud of the vendor in misrepresenting the number of acres in the traot conveyed, an instruction which took from the jury the evidence introduced upon the question of fraudulent representation of the amount of land conveyed, and, in effect, told the jury that if certain facts were proved, Which wore only provable under the allegations of the first paragraph, their verdict must be for the defendant, was erroneous.' pp. 551-553.</p> <p>Same. — False Representations by Vendor. — Where a vendee by the fraudulent representations of the vendor as to the extent or number of acres in the tract of land about to be convoyed to him is induced to enter into a contract that he would not otherwise have entered into, and to pay therefor more than he otherwise would, have done, lie will he entitled to an abatement in the purchase price, pp. 553, 554.</p> <p>Vendor and Purchaser. — False Representations by Vendor. — Damages. — Rescission of Contract. — A vendee is not required to rescind the contract in order to recover damages suffered through the fraudulent representations of the vendor, p. 554.</p>

<p>From Huntington Circuit Court; R. K. Erwin, Special Judge.</p> <p>Action by James M. Hatfield and others against Lizzie G. Chenoweth. From a judgment in favor of defendant, plaintiffs appeal.</p>

<p>From Hancock Circuit Court; E. W. Felt, Judge.</p> <p>Suit by Lucian N. Shull against George Elsbury and others. From a judgment for plaintiff, defendants appeal.</p>

Erom Jackson Circuit Court; T. B. Buskirk, Judge. Proceeding by H. William Scbepman and others for tbe establishment of a highway to which J. Henry Buhner and others appeared and moved that the report of the reviewers be set aside. Erom a judgment setting aside the report, the petitioners appeal.

<p>Erom Martin Circuit Court; li. Q. Houghton, Judge.</p> <p>Action by John R. Davis against tbe Southern Indiana Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

From'Lawrence Circuit Court: W. FI. Martin, Judge. Action by the Citizens Trust Company, administrator of the estate of Jacob Y. Bates, deceased, against Hugh Bass and others. Erom a judgment for plaintiff, defendants appeal.

From Olay Circuit Court; P. O. Colliver, Judge.’ Action by Richard Meyer, Jrl, administrator de bonis non of the estate of James Moore, deceased, against George W. Weaver and others. From a judgment for plaintiff, defendants appeal.

<p>New Trial as op Right. — Trespass.—Slandering Title. — Prayer for Injunction. — Quieting Title. — Where the complaint charges continuous and repeated trespass by driving over the land with teams, that the defendants claim title or an interest in the land adverse to plaintiff’s title and right to enter thereon, and deny plaintiff’s title thereto, which claim and denial of title is repeated and circulated, to plaintiff’s damage, and which prevents the sale of the real estate, and constitutes a cloud thereon, and such trespasses are a continuing injury to the plaintiff’s possession, to his damage, and praying for a recovery of damages in a named sum, and for a decree perpetually enjoining the defendants from trespassing on such real estate, or interfering with plaintiff’s possession or slandering his title, and for a decree quieting his title, a new trial as of right can not_be granted, pp. 594-598.</p> <p>Same. — Action to Quiet Title. — Common Law Trespass on Land.— Where in a suit to quiet title the complaint contains distinct averments peculiarly applicable to a common law action for trespass on land, a new trial as of right should be denied, p. 598.</p> <p>Same. — Setting Aside Order Granting New Trial. —Waiver.—After a new trial has been erroneously granted, an amended complaint filed and issue joined, the court may strike out the amended complaint and the answer thereto, set aside the order granting a new trial, and reinstate the original judgment. By appearing and making up the issues the defendant does not waive his right to insist that such a course be followed, p. 599.</p>

<p>Railroads. — Place for Passengers to Alight. — It is the duty of a railroad company to provide a safe place for its passengers to alight. p. 60S.</p> <p>Same. — Alighting from Moving Train. — Negligence.—It is not negligence per se for a passenger to alight from a moving train. The circumstances and conditions under which he acts must all be considered in determining the fact of negligence, and whether he exercised reasonable and ordinary care is a question for the jury. pp. 60S, 60S.</p> <p>Negligence. — Contributory.—Burden.—The burden of establishing contributory negligence is on the defendant; and the burden does not shift, p. 6O4.</p>

From Marshall Circuit Court ;.A. G. Capron, Judge. Action by the State, for the use of Quincy Cram, Drainage Commissioner of Starke county, against Daniel A. Elliott and others. From a judgment in favor of defendants, plaintiff appeals.

<p>Schools. — Teacher’s Contract. — Length, of Employment not Stated. — Where the length of the period of employment in a contract to teach a public school is not specified in the written contract, but it purports to be a contract of employment of the teacher for a term of school commencing at a specified date, such written contract, in this regard, may be aided and explained by parol evidence showing the actual length of the term. p. 6IS.</p> <p>Same. — Arbitrary Termination of Contract. — Under a contract of employment which provides that it “is to hold good as long * * * as said trustee sees fit,” such trustee can not arbitrarily terminate it. Before he can end performance under such a contract there must be some fitness in his act — at least such occasion for such action as to render his conduct referable to the exercise of sound official discretion, though without the consent of the one employed. pp. 61%, 613,</p> <p>Contract. — Mmt Bind Both Parties. — To constitute a contract, there must be a subsisting agreement between at least two parties, which is binding upon both of them. p. 612.</p> <p>Schools. — Improper Dismissal of Teacher. — Recovery.—A teacher in the public schools improperly dismissed by the school authorities is entitled to recover compensation from the school corporation employing her for the remaining part of the term of her employment for services she would have performed if she had not been so dismissed, pp. 618, 6I4.</p> <p>Appeal and Error. — Brief.—The Appellate Court will not search the record to find errors of which complaint is made by the appellant in his brief. The place where they occur must be specifically set forth in such brief, p. 6I4.</p>

<p>Erom the Carroll Circuit Court; T. F. Palmer, Judge.</p> <p>Action by Adam Gerliold against Abner T. Bowen and others. Erom a judgment in favor of plaintiff, defendant Bowen appeals.</p>

Erom Jasper Circuit Courts J. C. Nye, Special Judge. Proceeding 'by William B. Blankenbaker and others to establish a highway to which John Makeever filed a remonstrance. Erom a judgment in favor of petitioners, remonstrant appeals.

<p>Negligenoe. — Contributory, When Does Not Defeat Action. — Only such negligence on the part of the plaintiff as materially contributes to the accident will defeat him in his action to recover damages. p. 624.</p> <p>Trial. — Interrogatories to Jury. — Rules Concerning. — Presumptions Concerning. — Antagonistic Answers. — A general verdict for the plaintiff determines all material issues in his favor. All reasonable presumptions are indulged in favor of the general verdict, and none in favor of the answers to the interrogatories. The answers, to control the general verdict, must be in irreconcilable conflict with it. If the answers are antagonistic or inconsistent, they neutralize each other, and must be disregarded. The answers can override the general verdict only when both can not stand, and the conflict between them must be such that it is beyond the possibility of being removed by any evidence admissible under the issues, pp. 625, 626.</p> <p>Street Railroads. — Crossing Track. — Looking and Listening. — Stopping. — A person approaching a street railway crossing must use the caution of an ordinarily prudent .person. He must look and listen before attempting to cross, but whether he must stop depends upon the circumstances of each particular case. p. 626.</p> <p>Same. — Failure to Give Signals, Effect on Plaintiff’s Conduct. — Right of Jury to Consider. — The failure of those in charge of a street car to give the required signals when approaching a crossing will not excuse a person crossing the track at that point from the exercise of due care, but the jury may consider that fact, in connection with all the circumstances attending the accident, in passing upon the conduct of the person injured, pp. 626, 627.</p> <p>Same. — Evidence of Speed at Same Point at Other Times. — If there be conflict in the evidence concerning the rate of speed of a- car at the point on the track where the accident occurred, evidence of the speed of the defendant’s cars at the same place for several days immediately preceding the date of the accident is admissible. p. 627.</p> <p>Same. — Interrogatories.—Looking and Listening Before Entering on Street Car Track. — A special finding of a jury that the plaintiff, as he was approaching a street car track, and when within ten feet of such track, looked and listened in the direction of an approaching street car thereon, and neither saw nor heard it, but if he had stopped at that point he would have both seen and heard it; and they further found that before his horse entered upon such track he could have neither seen nor heard the approaching car in time to have avoided the accident, is not in such conflict with a general verdict in favor of the plaintiff as to overthrow it. p. 627.</p>

<p>Abatement. — Jurisdiction.—Waiver.—Objection to the jurisdiction of the court over the person of the defendant is waived if he secures a continuance and thereafter demurs to the complaint for want of facts, p. 629.</p> <p>Appeal and Error. — Bill of Exceptions. — Conflicting With Order-Book Entry. — Where an order-book entry made by the clerk is in conflict with a bill of exceptions, the latter controls, p. 630.</p> <p>Same. — Bill of Exceptions. — Can Not Supply Parts Essential to a Judgment. — It is not the office of a bill of exceptions to supply that which is essential to the validity of a judgment, p. 630.</p> <p>Compromise. — Consideration.—An agreement not to bring suit is a sufficient consideration to support the contract, p. 632.</p> <p>Same. — Consideration.—Agreement Not to Sue. — An agreement of a grantee in a deed of conveyance made with a guardian of a child who is a grandchild of the grantor, — the child’s mother who was a daughter of the grantor being dead at the time such agreement was made, — not to bring suit to have such grantor declared insane and to have a guardian appointed to preserve her estate, and to have such deed set aside, is supported by a sufficient consideration. p. 632.</p> <p>Contract. — Consideration.—A person who receives under a contract all the consideration for which he had contracted, can not successfully contend such contract is not supported by a sufficient consideration. p. 632.</p> <p>Same. — Made by Third Person. — Acceptance.—Minor.—Acceptance of a contract made by a third person for the benefit of a minor may be presumed from its beneficial character, p. 632.</p> <p>Same. — No Time for Performance Specified. — In an agreement that a third person shall have the right to sell certain real estate, hut fixes no time within which the sale shall be made, the law implies that such agent or third person has a reasonable time within which the sale is to be made. pp. 632, 633.</p> <p>Same. — Sale of Real Estate. — No Price Fixed. — -In a contract to the effect that certain real estate owned by one of the parties shall be sold and out of the proceeds plaintiff be paid a certain named sum of money, but fixing no price at nor the terms upon which the land shall be sold, the law implies that it is to be sold at a reasonable price and upon reasonable terms; and if the owner fix the price unreasonably high, or exact unreasonable terms, so that no sale can be effected, he will be liable personally for the amount of money to be paid, if it could have been sold ' at a reasonable price and upon reasonable terms, pp. 632, 633.</p>

<p>Trial. — Death.—Abatement.—Substitution of Personal Representative.— Heirs. — Where, in'a proceeding supplemental to execution, a defendant dies, the action does not abate, but the action may be continued, on motion or supplemental complaint, against his personal representative. If the proceedings relate solely to personal .property, his heirs can not be substituted as defendants, p. 636.</p> <p>Appeal and Error. — Substitution of Appellee. — Failure to Substitute in Trial Court. — When a defendant dies before the trial of a cause in the lower court, and his death is suggested of record, neither his personal representative nor his heirs can be substituted as appellees in the Appellate Court, p. 63i.</p> <p>Same. — Deceased Party Substituted,. — A deceased person can not be substituted as an appellee on appeal, p. 637.</p> <p>Same. — Separate Appeals by Different Parties.— Separate appeals in one cause from the same judgment can not be taken by the several parties thereto, pp. 637, 638.</p> <p>Same. — Lack of Parties on Appeal. — Dismissal.—Where the Appellate Court can neither affirm nor reverse the judgment appealed from, because all parties having an interest in the judgment were not made parties to the appeal, it will dismiss such appeal, p. 638.</p>

<p>From Grant Circuit Court; H. J. Paulus; Judge.</p> <p>Suit by Marietta E. Ross against the Logansport & Wabash Valley Gas Company to quiet title. From a judgment for plaintiff, defendant appeals.</p>

<p>From Morgan Circuit Court;' H. G. Barnett, Special Judge.</p> <p>Action by Josie M. Park against Jeff T. Park, administrator of the estate of Benjamin P. Park, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Action by Volta F. Clark against tlio American Car & Foundry Company. From a judgment for plaintiff, defendant appeals.</p>

Erom White Circuit Court; T. F. Palmer, Judge. Action, hy Patrick Hallagan against George W. Tanner and others. Judgment was rendered in favor of plaintiff against some of the defendants, and plaintiff appeals.

<p>Crimiñaí. Law. — Common Gambler. — Indictment.—Under §2180 Burns 1901, providing that “whoever, for the purpose of gaming*with cards or otherwise, travels ahout from pla^e to place, or frequents any place where gambling is permitted, or engages in gambling for a livelihood, is a common gambler, and upon conviction” shall be fined, all the things mentioned in the statute disjunctively may be charged conjunctively in a single count as constituting a single offense, pp. 657, 658.</p> <p>Same. — Common Gambler. — Indictment.—An indictment under §2180 Burns 1901 should charge the kind of gaming indulged in. p. 658.</p>

From Montgomery Circuit Court; Jere West, Judge, Clarence C. Peterman was prosecuted for an alleged violation of the compulsory education law. From a judgment of acquittal, the State appeals.

From Allen Circuit Court; W. J. Vesey, Special Judge. Action by John W. White, administrator of the estate of James B. White, deceased, to revive a decree of foreclosure recovered by John B. White against James R. Godfrey and wife. Carrie S. Alden appeared and filed a cross-complaint as assignee of a part of the judgment, and claimed priority. Prom an order denying her motion to modify the judgment so as to give her priority over the plaintiff, she appeals.

<p>Neolioenoe. — Evidence.—In an action for personal injuries the negligence of defendant causing the injury may he shown hy direct or circumstantial evidence, p. 693.</p> <p>Same. — Evidence.—Inference. — Negligence may he inferred from all the facts proved in an action for personal injuries, p. 693.</p> <p>Same. — Inference.—Failure of Defendant to Offer Testimony. — Where in an action against a street railroad company for injuries sustained by plaintiff caused hy defendant running its car against plaintiff’s wagon, which he was driving, the defendant failed to offer any evidence as to the manner of the accident, the jury had the right to put a construction upon the silence of defendant, and draw the inference of carelessness rather than accident, pp. 694, 693.</p> <p>Same. — Evidence.—Street Railroads. —Personal Injuries. — Contributory Negligence. — In an action against a street railroad company for personal injuries plaintiff testified that he stopped his wagon on the street railroad track awaiting the passage of a freight-train and was struck hy a street car, approaching from the rear, and injured; that it was early in the morning, and hut few cars were in operation; that there were obstructions at the sides to prevent him from driving off the track; that he looked down tfie track in the direction from which the car approached, before going upon the track, and.again while on the track, awaiting the passage of the train, and saw no car approaching; that there were no obstructions to prevent a view along the track for a distance of 900 feet, and the .motorman of the car could have seen plaintiff’s, wagon for that distance. Defendant introduced no evidence, and plaintiff offered no evidence as to the manner of the accident except his own. Held, that the evidence was sufficient on the ques'tion of negligence to support a verdict for plaintiff, pp. 693, 696.</p>

<p>Prom Boone Circuit Court; B. S. Higgins, Judge.</p> <p>Action by William Morrison against Lewis H. Jordan. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Marion County (61,581); J. M. Leathers, Judge.</p> <p>Action by William Campbell & Co. against Huida A. Stout. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Madison Circuit Court; J,, F. McClure, Judge.</p> <p>Suit by Isaac D. Bosworth against the city of Anderson and another. Prom a decree for defendants, plaintiff appeals.</p>

<p>From Howard Superior Court; B. F. Harness, Judge.</p> <p>Action by Anna Freeman and others against the Diamond Plate Glass Company and another. From a judgment for defendants, plaintiffs appeal.</p>