Volume 33 — Indiana Appellate Court Reports

<p>Mines and Minerals. — Gas and Oil Lease. — Where defendant, under a lease conveying all the gas and oil under certain described real estate, entered upon the land and caused to be drilled three gas-wells, and paid plaintiff, under the agreement, $300 per annum rental therefor, the defendant thereby acquired a vested interest in the land for the purposes named in the lease, p. 5.</p> <p>Landlord and Tenant. — Breach of Covenant. — Forfeiture.—The breach of a covenant to develop plaintiff’s land for oil under a lease providing that defendant should operate for gas and oil does not give plaintiff the right to declare a forfeiture or obtain a cancelation of the lease, p. 5.</p>

<p>Contracts. — Pleading Contract. — Presumptions.— A contract upon which, a pleading is based which is not shown to have been in writing will be presumed to have been in parol, p. 7.</p> <p>Landlord and Tenant. — Action for Rent. — Defense.—Answer.— In an action by the owner of land to recover rent accrued since his ownership, , an answer setting up payment under a contract between defendant and the former owner in which it was agreed that defendant was to make certain improvements on the real estate for which he should receive payment when the tenancy terminated was insufficient, it not being shown that defendant had any equitable lien on rents due plaintiff, or that there was any personal liability on the part of plaintiff for the amount claimed, and it was not sought to follow the real estate for the purpose of enforcing any lien. p. 8.</p>

From Jay Circuit Court; J. M. Smith, Judge. John W. Atkinson was convicted of the charge of permitting persons other than members of his family to enter his saloon on Sunday, and appeals.

<p>Evidence. — Suppression.—Presumption.—It is a general rule that, where a party suppresses evidence, the presumption may be indulged that its production would be against the interest of the party suppressing it. p. 25.</p> <p>Same. — Violation of Injunction. — Damages.—In an action for damages for the violation by defendants of an injunction restraining them from the manufacture and use of a machine for the manufacture of paper bags, 'invented by one of the defendants while in plaintiff’s employ, evidence as to the cost of manufacturing paper bags was properly admitted for the purpose of showing that plaintiff had been damaged by the loss of customers and diminished sales of an article which was being manufactured and sold at a profit, p. 26.</p> <p>Trial. — Evidence.—Offer to Prove. — Appeal and Error. — Available error can not be predicated upon an offer to prove that is not responsive to the rejected question, p. 26.</p> <p>Injunction. — Transfer of Enjoined Business to a Corporation. — A defendant who has been enjoined from the use and manufacture of a certain machine can not escape liability by transferring his business to a corporation in which he owns a controlling interest, pp. 26, 27.</p>

<p>From Jackson Circuit Court; T. B. Buskirk, Judge.</p> <p>Action by William Hunsucker against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Trial. — Demurrer to Evidence. — A demurrer to the evidence admits all facts which the evidence tends to prove, and all such inferences as can reasonably be drawn therefrom, and prevents the demurring party from insisting upon the benefit of any evidence in his favor, p. 40.</p> <p>Bills and Notes. — Joint Notes. — Fraudulent Conveyances. — To entitle the holder of joint and several notes to a judgment setting aside a fraudulent conveyance of real estate by one of the makers, in a joint action on the notes, he must show that the other co-obligors are insolvent. pp. 40-42.</p>

<p>Natural Gas. — Injury from Explosion. — Contributory Negligence. — Plaintiff was not guilty of contributory negligence precluding a recovery in an action for damages for injuries caused by an explosion of natural gas, where it appeared that natural gas from defendant’s pipes was escaping in plaintiff’s cellar, and that plaintiff went into the cellar to admit defendant’s superintendent who came to locate the leak, and remained no longer than was necessary to point out the place where she believed the gas was coming in the cellar, when defendant’s superintendent, without any warning, lighted a match which caused the explosion. pp. 43-47.</p> <p>Trial.— Discharge of Juror. — Discretion of Court. — The question of discharging a juror, challenged for cause, was in the sound discretion of the court, where the juror stated that his mind was not entirely free to try the cause, his opinion having been formed by talking to witnesses. pp. 47, 48.</p> <p>Same. — Hypothetical Question. — Assuming Facts Not Proved.— Cured by Instruction. — Error in permitting an hypothetical question which assumed facts not proved was cured by an instruction that the answer should not be considered if there was a failure of proof as to any material facts assumed by the question to be true. pp. 48, 49.</p>

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Suit by Curtis Worrall and others against Thomas J. Clark and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

<p>Specific Performance.-— Contract for Sale of Real Estate.— Inequality. —Plaintiffs contracted in writing to sell defendant a farm, the purchase price to be paid by the immediate delivery of a grocery of the value of $2,000, the payment of $1,625 in cash upon the delivery of the deed and the execution of a note secured by mortgage. Plaintiffs were to furnish an abstract of title as soon as it could reasonably be compiled, and to convey the real estate by warranty deed. No provision was made in the contract for the return of the grocery in the event of the failure of defendant to obtain title to the real estate, and no provision under which specific performance could be enforced. Held, that the contract was unequal, and that suit could not be maintained by plaintiff for specific performance, pp. 58-61.</p> <p>Vender and Purchaser. — Breach of Contract. — Bemedy.—Suit may be maintained for damages for failure to perform an executory contract in writing for the sale of real estate or for specific performance; an action at law for the purchase price will not lie. p. 61.</p> <p>Same. — Breach of Contract by Vendee. — Measure of Damages. — The measure of damages for breach of contract to purchase real estate is the difference between the price of the property as fixed in the contract and the fair cash value thereof at the time of the breach of the contract, p. 62.</p>

<p>Negligence. — Interurban Railroads. — A complaint against an interurban railroad company for personal injuries alleging that defendant negligently carried on the front of its car a banner for advertising purposes which frightened plaintiffs horse while passing along the public highway and caused it to become unmanageable,- causing the injuries complained of, states a cause of action, pp. 64, 65.</p> <p>Trial. — Contributory Negligence. — Burden of Proof. — Instruction.— Harmless Error. — An instruction that “the burden is on defendant to prove contributory negligence, if any, upon the part of plaintiff” was harmless, where the only evidence upon that question was from defendant’s witnesses. pp. 65, 66.</p> <p>Same. — Incomplete Instruction. — An instruction in an action for personal injuries, which purports only to give briefly the theory of plaintiff’s cause of action, and does not undertake to enumerate the facts necessary to be proved to entitle plaintiff to recover, is not erroneous because it is incomplete, where it is not misleading when taken in connection with other instructions given, p. 67.</p> <p>Same. — Interurban Railroads. — Instructions.—Frightening Horses. — An instruction in an action for injuries resulting from plaintiff’s horse becoming frightened at an interurban car on which an advertising banner was displayed, that if plaintiff’s horse became frightened at the running of said car, or at the appearance of said car, aside from the banner, and said car was being run and operated in the ordinary way, the fright of the horse could not be chargeable to the defendant, can not be construed as leading the jury to believe that plaintiff might recover if his horse became frightened at the running of the car unless it was shown that the car was being operated in the ordinary way. pp. 67, 68.</p> <p>Evidence. — Interurban Railroads. — In an action for damages for injuries sustained from plaintiff’s horse taking fright at an interurban car upon which a banner was displayed advertising a carnival, no error was committed in permitting the introduction of evidence describing the banners used for such advertisement, p. 68.</p> <p>Same. — Interurban Railroads. — No error was committed in excluding evidence offered by defendant, in an action for personal injuries resulting from plaintiff’s horse becoming frightened at an interurban car on which an advertising banner was attached, for the purpose of contradicting testimony given on behalf of plaintiff that the banner was of the usual size used on such occasions, where it was not the theory of the complaint that an unusual banner was carried, pp. 68, 69.</p>

<p>From Wells Circuit Court; E. C. Vaughn, Judge.</p> <p>Suit by Josephine Eikenbury against Charles Eikenbury for divorce. From a judgment denying the divorce, plaintiff appeals.</p>

From Randolph Circuit Court; H. C. Fox, Special Judge. Proceeding by Eliza Hinshaw, administratrix of the estate of Absalom Hinshaw, deceased, against Mary Hinshaw Hunt and others to sell real estate. From a judgment for plaintiff, defendants appeal.

<p>Street Railroads. — Duty of Motorman to Amid Collisions. — It is the duty of the motorman of a street car when running a car along a street where persons frequently cross the tracks to have the car under such control as to be able to check it to avoid collisions, and to keep a vigilant outlook to the same end. p. 82.</p> <p>Same. — Injury at Crossing. — Contributory Negligence. — Where plaintiff saw a street ear approaching, knew that it was likely to strike him if he attempted to cross the tracks, hesitated, then, at the suggestion of his companion, struck his horse and attempted to cross the track and was struck by the car, he iras guilty of such contributory negligence as to preclude a recovery for the injuries sustained, p. 82.</p>

<p>From Owen Circuit Court; M. H. Parks, Judge.</p> <p>Action by John M. Leonard against Lulu Wood and others. From a judgment for defendants, plaintiff appeals.</p>

From Noble Circuit Court; J. W. Adair, Judge. From an order of court directing George W. Poppy as administrator of the estate of Henry Walker, deceased, to pay to Amelia Walker her share of decedent’s estate unconditionally, the administrator’ appeals.

<p>Stbeet Ratleoads. — Injury of Passenger While Alighting from Car. — Negligence. — Iu an action against the owner of a street railway for injuries received by a passenger while alighting from a car, the mere fact that the car was moving does not make the question of plaintiff’s negligence one of law for the court, p. 89.</p> <p>Same. — Individual Owner. — Instruction.—In an action against an individual owner of a street railway it was not error to instruct the jury that defendant was under the same obligation to provide for the safety of passengers as a corporation carrier, p. 90.</p> <p>Same. — Injury to Passenger Alighting from. Car. — It is not only the duty of those in charge of a street car to stop the car a reasonable time for passengers to alight, hut they must ascertain and know that no passenger is in the act of alighting before putting the .car in motion, p. 90.</p> <p>Same. — Gamers.—Pegree of Care Pequired. — Negligence.—A carrier must exercise the highest practicable care .for the safety of its passengers, and any failure in this respect constitutes actionable negligence. pp. 90, 91.</p> <p>Same. — Negligence.—It is not negligence per se for a passenger to fail to take hold of the hand-rail in alighting from a street car. p. 91.</p>

<p>From the Porter Superior Court; H. B. Tuthill, Judge.</p> <p>Action by Harriet Winslow against the city of Hammond. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clay Circuit Court; S. D. Coffey, Special Judge.</p> <p>Action by Malinda J. Stephenson, administratrix of the estate of Frederick B. Stephenson, deceased, against the Chicago & Eastern Illinois Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Greene Circuit Court; O. B. Harris, Judge.</p> <p>Action by Benjamin E. McAtee against the Phœnix Insurance Company of Brooklyn, New York. From a judgment for plaintiff, defendant appeals.</p>

<p>Sales. — Severable Contract. — Breach.— Recovay of Purchase Prise Paid,— Where a contract for the sale of skins set out several distinct classes to he furnished, and apportioned the price to he paid for each class, the contract is a divisible one, and entitled the buyer to rescind the contract for fraud as to part of the items and recover the price paid therefor. pp. 116, 117.</p> <p>Same. — Action to Rescind Contract. — Complaint.—In an action to rescind for fraud a contract for the sale of goods, an averment in the complaint 'that the articles shipped were inferior to the quality specified in the contract, and were not marketable in the condition they were in when shipped by defendants and received by plaintiffs, was sufficient in the absence of a motion to make specific, pp. 117, 118.</p> <p>Same. — Rescission of Contract. — Recovery of Purchase Price. — In an action to rescind a contract of sale as to part of the articles sold and to recover the purchase price thereof, evidence as to the value of such articles was immaterial, pp. 118, 119.</p> <p>Tbial. — Misconduct of Jury. — Affidavits of Jurors. — New Trial. — The affidavits of three jurors that statements were made to the jury, by members of the panel, to the effect that defendants were Jews, and unworthy of be-belief, and that one of defendants’ witnesses had attempted to defraud an insurance company by burning his own property, were not ground for a new trial, since a juror can not impeach his own verdict. p. 119.</p>

<p>From Lake Circuit Court; H. S. Barr, Special Judge.</p> <p>Action by William Pennington on a claim against the estate of Chester Guernsey. From a judgment for plaintiff, defendant appeals.</p>

<p>From Jackson Circuit Court; T. B. Buskirk, Judge.</p> <p>Action by Heloise MacMillan and others against James S. Clements and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>From Clay Circuit Court; P. O. Colliver, Judge.</p> <p>Action by Thomas Watson against the Terre Haute Electric Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Carriers. — Injury of Passenger Alighting from, Train. — Contributory Negligence. — Complaint.—In an action for injuries sustained by a passenger in alighting from a moving train, the complaint alleged that the brakeman announced the station, the air brakes were applied, and the brakeman went out of the door and down the steps to the platform, but did not take his lantern; that the train appeared to have stopped and the action of the brakeman led plaintiff to believe it had stopped; that plaintiff stepped from the car steps to the platform, and because of the wet and slippery condition of the platform, and the fact that the train was moving, he was thrown upon the platform and injured. Held, that the complaint shows contributory negligence on the part of plaintiff precluding a recovery.</p>

From Morgan Circuit Court; J. L. Clark, Special Judge. Action by Daniel W. Norton and another against Robert Fisher and others to foreclose a sewer assessment. From a judgment in favor of defendants, plaintiffs appeal.

<p>From Superior Court of Marion County (63,607); Vinson Carter, Judge.</p> <p>Action by William Bordenchecker, by next friend, against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Washington Circuit Court; W. H. Paynter, Special Judge.</p> <p>Action by Jacob B. Cunningham, administrator of the estate of Enoch Morris, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Fayette Circuit Court; F. S. Swift, Judge. Suit by Thomas Maley against Thomas J. Clark and others, as mayor and members of the common council of the city of Connersville, to enjoin the awarding of a contract for a street improvement. From a judgment in favor of defendants, plaintiff appeals.

<p>Attorneys. — Disbarment.-—Change of Venue. — The accused in a disbarment proceeding, brought under §988 Burns 1901, is entitled to a change of venue from the county and to a change from the judge as in ordinary civil actions.</p>

<p>From Steuben Circuit Court; S. A. Powers, Special Judge.</p> <p>Action by Frank S. Paul against the Baltimore & Ohio Railroad Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal and Error. — Acceptance of Benefit of Judgment. — r Waiver. — Where it appears from a verified answer in bar to the errors assigned that after the rendition of the judgment in an ejectment proceeding the appellant took possession of that portion of the land awarded him, and has since held the same, appropriating to his own use the rents and profits arising therefrom, and exercising acts of ownership over the same, the appellant thereby waives his right to appeal from the judgment, and the appeal *will be dismissed. .</p>

From Sullivan Circuit Court; W. R. Nesbit, Special Judge. Proceeding by James J. Pearson and others to establish a highway. The Merom Gravel Company filed objections. From a judgment establishing the highway the objector appeals.

<p>From Huntington Circuit Court; O. W. Whitelock, Special Judge.</p> <p>Action by John Nieman against the Ft. Wayne Gas Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Huntington Circuit Court; A. H. Plummer, Special Judge.</p> <p>Action by Ida M. Hamilton against John Lowery. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>From Marion Circuit Court (10,551); H. C. Allen, Judge.</p> <p>Action by George W. Clark against the Citizens Street Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Suit by the city of Valparaiso against the Valparaiso City Water Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Daviess Circuit Court; M. S. Hastings, Special Judge.</p> <p>Action by Samuel Reynolds against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Lawrence Circuit Court; W. H. Martin, Judge.</p> <p>Action by Bettie F. Nichols, administratrix of the estate of Charles L. Nichols, deceased, against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Huntington Circuit Court; S. M. Sayler, Special Judge.</p> <p>Suit by Cyrus H. Stults against the Huntington WaterWorks Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Negligence. — Contributory.—Master and Servant. — Defendant maintained a pit in a path used by its employes while engaged in their work, which could be passed over with safety when covered, but the covering had been removed by defendant, without the knowledge of plaintiff, and plaintiff, while passing along the path, after dark, fell into the pit and was injured. Held, that the question of contributory negligence of plaintiff was one of fact for the determination of the jury. pp. 252-254.</p> <p>Same. — Contributory.—Master and Servant.— Where there were different paths which a servant could travel while engaged in his work, and all of them were apparently equally safe, the act of the servant in choosing one in preference to the others, although he was injured while passing over it, was not an act of negligence, p. 254.</p> <p>Appeal and Error. — Evidence.—Objection.—Exception.—An objection to the question asked plaintiff, in an action for personal injuries, why he quit work, for the reason that “it is immaterial as to why he quit, the witness having stated that he quit of his own volition, and that he was not discharged by the defendant” is too general and indefinite to present any available question, p. 255.</p> <p>Evidence. — Admission.—Where, in an action by a servant for injuries sustained from falling into an unguarded pit, while going from his work to the tool house, all the surroundings and conditions existing at the time could be placed before the jury from which they could determine the necessity for the servant to pass the pit, the refusal of the court to permit a witness to testify whether there was a necessity therefor was not error, p. 255.</p>

<p>From Huntington Circuit Court; J. C. Branyan, Judge.</p> <p>Martin Stapf was convicted of selling liquor without a license, and he appeals.</p>

<p>From Wells Circuit Court; E. C. Vaughn, Judge.</p> <p>Application by John S. Krewson, executor of the will of John T. Fuchshuber, deceased, for directions as to the manner in which he should distribute testator’s estate. From the order directing the manner of distribution, John A. Fuchshuber and others, children of testator, appeal.</p>

<p>Railroads.— Obstruction of Street.— Affidavit. — Section 2291 Burns 1901 defines two offenses — permitting a train to stand across a street, and stopping a train across a street and failing to leave a designated space— but the last act may be said to be but a continuation of the first, and an affidavit charging both acts is not bad for duplicity, pp. 261, 262.</p> <p>Same. — Obstruction of Street. — Affidavit.—An allegation in an affidavit in a prosecution, under §2291 Burns 1901, for obstructing a street with a train of cars used in carrying freight, that defendant had charge of running a railroad freight-train and freight-cars is sufficient without alleging that the train in charge of defendant was carrying or used for carrying freight. ' p. 262.</p> <p>Same. — Obstruction of Street. — Evidence.— Railroad Train.— Out of Oars.— Evidence that defendant had charge of a cut of cars which were being switched from place to place for the purpose of setting cars at different places was sufficient to warrant a conviction under §2291 Burns 1901. pp. 262, 263.</p>

<p>From Harrison Circuit Court; C. W. Cook, Judge.</p> <p>Action by Mary E. Turner, administratrix of the estate of George F. Turner, deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Jay Circuit Court; H. C. Fox, Special Judge.</p> <p>Suit by Isabelle Williams against Peter B. Manley and others. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>Railroads. — Signals at Crossings. — Purpose.—The object in requiring railroad companies to give signals of the approach of trains to highway crossings is not altogether to prevent a collision with the trains, but to enable travelers approaching the crossing to avoid the danger arising from being in close proximity to the track when the trains pass. p. 278.</p> <p>Same. — Injury at Grossing. — Failure to Give Signals. — Proximate Cause. — A complaint in an action for damages for injuries sustained at a railroad and highway crossing alleged that by reason of certain obstructions persons approaching the crossing were unable to see more than ten feet along the track in the direction from which the train approached without going upon the track; that plaintiff and her husband approached the crossing in an open sleigh, driving in a walk, and looked and listened for the approach of trains, and when within ten or fifteen feet of the track stopped their horse and looked and listened for trains; that on failing to see or hear any they drove on, looking and listening, when, without any signal or warning, defendant negligently pushed a train of freight cars upon the crossing in such close proximity to the horse as to frighten the horse, causing it to become unmanageable, causing the sleigh to be upset, and the injury complained of. Held, that the negligence of defendant in failing'to give signals was the proximate cause of the injury. pp. 276-279.</p> <p>Negligence. — Proximate Cause. — The proximate cause of an injury is that which sets in motion the chain of circumstances leading up to the injury, p. 278.</p> <p>Railroads. — Signals at Crossings. — Where, by reason of the location of the engine at the rear end of the train, signals could not be heard at a highway crossing, it was the duty of those in charge of the train to give warning of its approach in some other way. p. 279.</p> <p>Railroads. — Signals at Crossings. — Ordinances.—An ordinance prohibiting railroad companies from sounding locomotive whistles within the corporate limits of the city, containing the proviso that nothing in the ordinance should prohibit the sounding of fire alarms, or such danger signals as are necessary for the protection of life and property, was immaterial in an action against a railroad company for injuries caused by failure to give signals of the approach of a train, and no error was committed in striking the same from the evidence on motion of plaintiff. pp. 280-282.</p> <p>Negligence. — Contributory.—Instruction as to Burden of Proof. — An instruction in an action for personal injuries “ that under the law as it now is, contributory negligence on the part of the plaintiff is a matter of defense, and must be proved by a fair preponderance of the evidence in the case, but such contributory negligence may be proved by witnesses introduced by the defendant or those introduced by the plaintiff, or by both” is not erroneous because the word “witnesses” was used instead of the word “evidence,” especially where the jury was told in another instruction that “if you find from the evidence in this case that the plaintiff was guilty of any negligence on her part which proximately contributed to the injuries of which she complains, your verdict should be for the defendant.” pp. 282, 283.</p> <p>Evidence. — Expressions of Pain and Suffering. — In an action for personal injuries, plaintiff’s husband, testifying as a witness, was asked to state to the jury — “using her language — what exclamations of pain, if any, she had given since the date of the accident,” and answered, “she says, ‘my back and hip hurts me.’” Held, admissible as an expression of present, existing pain. pp. 283, 284.</p>

<p>Divorce. — Appeal from, Judgment for Alimony. — Remarriage.—Where a husband to whom, a divorce was granted appealed from the judgment against him for. alimony and after the submission of the cause on appeal remarried, the appeal will be dismissed, since by his remarriage he accepted the benefits of that part of the decree and rendered it impossible for the court to do what the justice of the case might require that it should do.</p>

<p>From White Circuit Court; G. F. Marvin, Special Judge.</p> <p>Action by William H. Helton and wife against Amelia Fastnow and husband. From a judgment for defendants, plaintiffs appeal.</p>

<p>From Parke Circuit Court; A. F. White, Judge.</p> <p>Suit by James H. Carrithers against Maggie Vansell and husband. From a judgment for plaintiff, defendants appeal.</p>

<p>From Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Action by Leander B. Zaring, administrator of the estate of Samuel H. Cagly, deceased, against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Floyd Circuit Court; E. G. Henry, Judge pro tem.</p> <p>Action by Emma B. Loughmiller against the Union Central Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (60,060); J. M. Leathers, Judge.</p> <p>Action by John F. Wasson and another against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Decatur Circuit Court; J. K. Ewing, Special Judge.</p> <p>Action by John F. Goddard, administrator of the estate of John H. Binder, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Warren Circuit Court; Joseph M. Rabb, Judge. Application by John Sexton for a license to sell intoxicating liquors. John C. Goodwine and others remonstrated. From a judgment denying the license, the applicant appeals.

<p>From Crawford Circuit Court; C. W. Cook, Judge.</p> <p>Action by William P. Jones against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Marion Circuit Court (10,987); H. C. Allen, Judge. Proceeding by tbe Indianapolis & Martinsville Rapid Transit Company to appropriate certain lands for a right of way owned by the Indianapolis & Vincennes Railroad Company. From a decree in favor of plaintiff, defendant appeals.

<p>Appeal and Error. — Assignments of Error. — Assignments that the court erred in giving certain instructions and that the verdict is not supported by sufficient evidence and is contrary to law are reasons for a new trial, and are not properly assigned as independent errors on appeal. p. 347.</p> <p>Insane Persons. — Examination by Justices of the Peace. — Notice.—The fact that a person has been declared of unsound mind by two justices of the peace, under the statute, and sent to an insane hospital, and afterwards discharged as cured, is not notice to persons who deal with him, in good faith, that he is of unsound mind and incompetent to transact business," where there was nothing in his actions or conduct which would cause a prudent man to think he was otherwise than sane. pp. 347-349.</p>

<p>From Newton Circuit Court; Frank A. Comparet, Special Judge.</p> <p>Action by Frank E. Babcock against the Board of Commissioners of Jasper County. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Malicious Prosecution. — Principal and Agent. — Malice.—Where in an action against an agent and his principals for malicious prosecution the jury found in answer to interrogatories that the principals did not maliciously institute the prosecution, the plaintiff is not entitled to recover against them.</p>

<p>From Pulaski Circuit Court; J. C. Nye, Judge.</p> <p>Suit by the Cincinnati, Richmond & Muncie Railroad against John Stauffer and wife. From a judgment for plaintiff, defendants appeal.</p>

<p>Slander. — Words Spoken. — The words: “You damned old-! You broke in Patterson’s house and stole the coal ” — charge a crime, and are slanderous per se. p. 362.</p> <p>Same.— Words Spoken. — Inducement.—Complaint.—A complaint for slander in one paragraph alleged: “Aaron Acton (plaintiff meaning) tore off the roof of J. S. Patterson’s coal shed and took out some coal. You can call that stealing, or what you please.” In another paragraph the language charged was: “Acton (plaintiff meaning) broke Patterson’s coal shed open and took his coal. You can call it what you please.” And in another paragraph: “Acton (plaintiff meaning) broke Patterson’s coal shed open and took coal. You can call it what you please. That is what he done.” And in another paragraph charged: “Me and my wife (meaning defendant and his wife) saw Acton and Owen (meaning the plaintiff and one Charles Owen) go to Patterson’s coal house and pry the coal house roof off and take the coal. You can call it what you please. That is what he done.” Each paragraph contained the averment, following the language charged, “Thereby charging and intending to charge the plaintiff with the crime of larceny or stealing the coal, and it was so understood by the parties, respectively, to whom such statements were made.” Held, that though'the words charged do not amount to a direct charge that plaintiff had committed larceny, they were susceptible of being so understood, and, taken in connection with the inducement alleged, they are actionable, pp. 363, 364.</p> <p>Same. — Intent.—Evidence.—Punitive Damages. — The defendant in a slander suit can not defeat the action, or escape the consequences of the slanderous utterances, by proof that he did not intend to make the charge which he did in fact make; but where it is sought in such action to recover punitive damages, and to establish malice in fact, the intent of the defendant becomes an issue, and evidence relative thereto is admissible. pp. 364 — 366.</p>

<p>From Elkhart Circuit Court; Joseph D. Ferrall, Judge.</p> <p>Action by Samuel D. Coppes and others against the Union National Savings & Loan Association of Indianapolis. From a judgment for defendant, plaintiffs appeal.</p>

<p>From Blackford Circuit Court; E. C. Vaughn, Judge.</p> <p>Action by Henry C. Zeigler against the Board of Commissioners of Blackford County. From a judgment for defendant on demurrer to complaint, plaintiff appeals.</p>

<p>Master and Servant. — Employers’ Liability Act. — Complaint.— A complaint in an action by a section hand for injuries sustained alleging that the foreman, acting for the master, ordered plaintiff to use an appliance under circumstances that made such use dangerous, and that plaintiff, in conforming to the order, was injured, states a cause of action under #7083 Burns 1901. pp. 380, 381.</p> <p>Same. — Defective Appliances. — Time to Make Repairs. — Railroads.—A complaint against a railroad company for injuries sustained because of an alleged defect in the brake of a hand-car is not objectionable for failure to show that the defect existed long enough after it was or should have been known by defendant to enable it to repair the same pp. 381, 382.</p> <p>Same. — Tools and Appliances. — Duty to Inspect. — Hand-Car.—It can not be said as a matter of law that a hand-car used by a railroad company to transport its laborers to and from their work is, ipso facto, a tool used by the employes, in the sense that the company is relieved from the duty of inspecting it. p. 382.</p> <p>Same. — Instructions.—Tools and Appliances. — Duty of Master. — An instruction that it is the duty of the master “ to furnish reasonably safe machinery and appliances,” etc., with which his servant is to work, instead of stating that it is the duty of the master to use reasonable care in furnishing such tools and appliances, is not erroneous, pp. 383, 384.</p> <p>Same. — Defective Appliances. — Knowledge of Servant. — An instruction, in an action for injuries sustained by reason of a defective brake on a handcar which plaintiff was assisting in operating, that if plaintiff knew or should have known of the defective brake the plaintiff would not be chargeable with an assumption of the risk unless he was chargeable with knowledge that danger existed from such conditions, was erroneous, but was rendered harmless by answers to interrogatories that plaintiff did not know of the defect, p. 385.</p> <p>Same. — Defective Appliances. — Knowledge of Servant. — Allegations and Proof.— Where the complaint in an action by a servant for injuries sustained by reason of a defective hand-car averred that “plaintiff then and there did not know, and could not see or know, that said brake was out of order as aforesaid,” it was necessary, in order to sustain the allegation, that the evidence show not only that he had no knowledge of the defect and danger, but that he could not have known it by the exercise of ordinary care. pp. 386-387.</p>

From the Vanderburgh Circuit Court; A. C. Hawkins, Special Judge. Proceeding by John T. Phillips, executor of the will of Elizabeth Aiken, deceased, and others, against Daniel A. Heldt and others for the construction of the will. From a judgment construing the will, petitioners appeal.

<p>From Tipton Circuit Court; J. V. Kent, Special Judge.</p> <p>Suit by Theophilus Magaw, guardian, against James Balph and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Hendricks Circuit Court; T. J. Cofer, Judge.</p> <p>Action by Leonia Lindsay, administratrix of the estate of Howard Lindsay, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Parties.—In an appeal by plaintiff from the insufficiency of a judgment in a suit to foreclose a chattel mortgage, other lien holders who were made parties, and whose interests were not joined with plaintiff, were properly made appellees, pp. 414, 415.</p> <p>Same. — Marginal Notes. — The inadequacy of marginal notes in a bill of exceptions containing the evidence, in the consideration of an assignment of error requiring an examination of the evidence, is not sufficient ground for dismissing the appeal, where there are assignments of error to be considered which do not involve an examination of any of the evidence, p. 415.</p> <p>Same. — Conclusions of Law. — Joint Assignment. — An assignment that the court erred in its conclusions of law is not available unless all of the conclusions of law are erroneous, p. 415.</p> <p>Mortgages. — Foreclosure.—Substituted Property. — Injunction.— Good- Will.— The owner of a printing establishment in which a daily and weekly newspaper were published executed a mortgage on the presses, type, etc., and thereafter printing presses owned by mortgagor’s wife were installed, the mortgaged property stored in a different building and the newspapers, under a different name, were printed and sent to the old patrons. Held, that the mortgagee, on foreclosure, had no rights in the property substituted, and that though the mortgage included the good-will of the business, the mortgagee could not enjoin the mortgagor’s wife from conducting the business in her own name with her husband as agent. pp. 415-422.</p>

From Newton Circuit Court; C. W. Hanley, Judge. Suit by Alexander B. Tolin and others to enjoin Schuyler C. Jones as auditor of Newton county from letting a contract for the construction of a ditch. From a judgment dissolving a temporary restraining order, plaintiffs appeal.

<p>From St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Suit by Hilary Early against August Boldt. From a judgment for plaintiff, defendant appeals.</p>

<p>Gaming. — Recovery of Honey Lost. — Bucket-Shop Transactions. — Dealing in options upon any kind of property is not a game within the meaning of §6676 Burns 1901, and an action can not be maintained under such statute for the recovery of money lost in bucket-shop transactions.</p>

<p>From Randolph Circuit Court; John W. Macy, Judge.</p> <p>Suit by William E. Leonhard against Emanuel Rothschild. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Railroads. — Fences.—Insufficient Fence. — Construction by Landowner. — Where a fence along a railroad right of way was destroyed by fire and the railroad company after notice by the adjoining landowner to rebuild the fence built a fence insufficient to turn stock, the action of the landowner in making such incomplete fence into a fence as the statute designates was not in the nature of repairs, under §5325 Burns 1901, but amounted in character to building the fence entire, and a recovery can be had therefor, under §5324 Burns 1901. pp. 462-464.</p> <p>Railroads. — Fences. — Construction by Landowner. — Notice.—Recovery.—An itemized statement of the expense of the construction of the fence showing by indorsement thereon that it was presented to defendant’s agent for payment more than sixty days before bringing an action against a railroad company to recover the cost of constructing a fence along the railroad right of way was sufficient to authorize the finding that the statement was presented to the company more than sixty days before the suit was brought, pp. 464, 465.</p>

<p>Bankruptcy. — Preference of Creditors. — Partners borrowed money from a bank with which to buy a stock of goods, giving their notes with surety. The notes were renewed from time to time, and the firm became insolvent and sold and transferred the entire stock of goods to the surety, paid from the proceeds thereof the amount due the bank on the notes, and divided the remainder between themselves. Thereafter, within four months of such transfer, such partners were adjudged bankrupts on a petition filed about the time of the transfer of the stock of goods. Held, that the sale and transfer was an unlawful preference within the meaning of the bankruptcy law of 1898 (Act 1898 c. 541, 30 Stat. 562). pp. 465-475.</p> <p>Same. — Transfer of Property by Bankrupt. — Recovery by Trustee. — Demand.— No demand is necessary before the commencement of an action by a trustee in bankruptcy to enfore his rights as such trustee to property unlawfully transferred by the bankrupt, p. 475.</p>

<p>From Huntington Circuit Court; J. C. Branyan, Judge.</p> <p>Action by John Lusch against the city of Huntington. From a judgment for plaintiff, defendant appeals.</p>

<p>From Madison Circuit Court; J. F. McClure, Judge.</p> <p>Action by the Brannum Lumber Company against Edward M. Pickard. From a judgment for defendant, plaintiff appeals.</p>

<p>From Blackford Circuit Court; E. C. Vaughn, Judge.</p> <p>William E. Christ was convicted of keeping a building or room to be occupied for gaming, and appeals.</p>

<p>From Elkhart Circuit Court; Anthony Deahl, Special Judge.</p> <p>Action by John Bertch against the St. Joseph Ice Company and others. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>Contracts. — For Benefit of Third Person. — Where part of the consideration for the conveyance of real estate was an agreement on the part of the grantee to pay a certain sum of money to a third person, such person is entitled, under §251 Burns 1901, to maintain an action for the recovery of the money so agreed to be paid without assignment by the grantor, pp. 496, 497.</p> <p>Infants. — Limitation of Actions. — A cause of action in favor of an infant is not barred by the statute of limitations, but such action by reason of §297 Burns 1901 may be brought within two years after the disability of infancy is removed, pp. 497, 498.</p> <p>Guardian and Ward. — Collection of Debts Due Ward. — A guardian may enforce by suit the collection, of all debts due his ward. p. 498.</p> <p>Vendor and Purchaser. — Vendor’s Lien. — A vendor’s lien is given for the security of the unpaid purchase money of real estate, and, if by consent of the vendor the purchaser is to pay the purchase money to a third person, such creditor may enforce a vendor’s lien. p. 498.</p> <p>Vendor and Purchaser. — Husband and Wife. — Inchoate Interest of Wife.— The right of a woman in land by virtue of her marriage, while it remains inchoate, and after it has become complete by the death of her husband, is subject to the lien of the husband’s grantor for the payment of the purchase money of the land., p. 498.</p> <p>Same. — Enforcement.—A vendor’s lien is available against the grantee, his heirs, devisees, and other immediate successors in interest, and against all subsequent encumbrancers of the land under the grantee who are not bona fide purchasers for a valuable consideration and without notice, p. 498.</p>

<p>Pleading. — Amendment During Trial. — An interlineation in a complaint, made during the trial, changing the amount of the-demand, did not amount to such an amendment as to require the complaint to be refiled, and such complaint may be considered on appeal as changed, p. 500.</p> <p>Negligence. — Based Upon Act of Servant. — Scope of Employment. — Complaint. — A complaint seeking to charge the master with negligence based on the act of the servant need not allege in direct terms that the servant was acting within the scope of his employment, pp. 500-502.</p> <p>Appeal and Error. — Evidence.—Precipe.—Record.—An objection to the consideration of the evidence on appeal, for the reason that the clerk’s certificate does not state that the transcript embraces the original longhand manuscript of the evidence which is called for by the precipe, is not well taken, where the certificate and precipe conform to the provisions of §7 of the act of 1903 (Acts 1903, p. 338). pp. 502, 503.</p> <p>Negligence. — Street Railroads. — Carriers.—Aged and Infirm Passengers.— Instructions. — In an action against a street railroad company for injuries sustained by plaintiff by the alleged negligence of defendant’s servants in suddenly starting the car as plaintiff was about to alight, the court instructed the jury that the servants in charge of a street car are required to give more care and attention to aged or infirm persons in boarding cars, riding thereon, or. alighting therefrom, than would be required of them in relation to persons in good health and possessed of full vigor of body and mind, and in determining the care and caution of the employes of defendant, and the negligence or absence of negligence of the employes, the jury might consider plaintiff’s age and infirmities at the time of the accident. Held, that the instruction was erroneous, since it might have been understood as authorizing the jury in finding the defendant guilty of negligence in failing to restrain plaintiff from voluntarily walking off the car, there being no allegation in the complaint charging defendant with the duty of watching over or restraining plaintiff, pp. 503, 501.</p>

<p>Injunction. — Gas and Oil Lease. — Acts of Third Persons. — One entitled to the exclusive right of gas and oil products on a tract of land under an unexpired lease from the owner of the land may enjoin the invasion thereof by a stranger, and the threatened drilling of a well by him, for the purpose of extracting gas or oil, the damages that would accrue being'incapable of definite ascertainment.</p>

<p>From Miami Circuit Court; J. N. Tillett, Judge.</p> <p>Jacob P. M. Miller was convicted of an assault, and he appeals.</p>

<p>Pleading. — Absence of Prayer for Judgment. — Where a complaint in an action to establish plaintiff’s right to use a highway states a cause of action in other respects, it is not bad against a demurrer because of the absence of a prayer for judgment, p. 519.</p> <p>Deeds. — Agreement to Construct Highway. — 'Where the principal consideration for the execution of a deed was the opening and construction of a highway adjacent to the land conveyed, the failure of the grantee to construct the highway did not deprive the grantor-of the right to use the same. pp. 519, 520.</p> <p>Same. — Agreement to Construct Highway. — Where part of the consideration for the execution of á deed was the construction of a “passable highway” for “public utility,” the parties contemplated that the way should be suitable to the particular locality, p. 520.</p>

From Wells Circuit Court; James P. Hale, Special Judge. Suit by Charles M. Miller against the city of Bluffton and another to enjoin the carrying out of a contract for a street improvement. From a judgment in favor of plaintiff on demurrer to complaint, defendants appeal.

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Action by J. Harve Koontz against tbe Muncie Pulp Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Jay Circuit Court; John M. Smith, Judge.</p> <p>Action by Fred H. Wilkinson against Samuel E. Wilkinson. From a judgment for defendant, plaintiff appeals.</p>

<p>Intoxicating Liquors. — Illegal Sales. — Damages for Death from Intoxication. — Complaint.—A complaint against a brewing company and a saloon keeper for damages for the death of plaintiff’s son from acute alcoholism alleged that the defendant brewing company “colluded and connived and became a party in interest with” the saloon keeper in conducting the saloon in which the liquors were sold to plaintiff’s son without a license, and “became interested in the proceeds and profits of said business.” Held, that the charge of collusion was sufficient to admit proof of the brewing company’s connection with the business, pp. 545, 546.</p> <p>Same. — Death from, Unlawful Sale of Liquors. — A saloon keeper began business without a license, executing his note to defendant brewing. company in payment for a license, which the brewing company agreed to get for him. The agent of the brewing company after-wards telephoned the saloon keeper that a license had been granted. The saloon keeper leased the building in which the saloon was conducted, and the brewing company paid the rent and furnished the liquor. Held, that the brewing company was liable in damages for the death of plaintiff’s son resulting from acute alcoholism from drinking intoxicating liquors purchased in said saloon. Wiley, J., dissents. pp. 545-547.</p>

<p>Contracts. — Construction.—In construing a contract, the court will, if possible, give effect to all its parts, and determine its true meaning from a consideration of all its provisions taken together as a whole. p. 562.</p> <p>Gas and Oil Lease. — Termination.—Mines and Minerals. — A gas and oil lease “for the term of twelve years, and so long thereafter as petroleum or mineral substances can be produced in paying quantities, or the payments hereinafter provided for are made according to the terms and conditions attaching thereto,” by which the lessee agreed to commence operations for drilling and mining purposes within one year from the execution of the lease, or, “in lieu thereof, for delay in commencing such operations,” thereafter pay to lessor $20 per year in advance until such operations were commenced and a well completed, contemplated the development of the property, and the lessee could not hold the premises longer than twelve years by merely making the annual payments, and could hold the premises as long beyond twelve years as gas and oil could be produced in paying quantities, upon payment of the royalties and well rentals, pp. 562-564.</p>

<p>From Superior Court of Marion County (43,902); Vinson Carter, Judge.</p> <p>Action by C. & A. Potts & Co. against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal AUD Error. — Evidence.—Assignment of Error. — Statute of 1903.— Where error is not assigned under the act of 1903 (Acts 1903, p. 341), and the motion for a new trial is on the grounds that the decision of the court is not sustained by sufficient evidence, the only question for determination on appeal is whether the judgment had any evidence on which to rest. p. 585.</p> <p>Same. — Evidence.—Mortgages.—Foreclosure.—Where, in an action to foreclose a building and loan association mortgage, the defendant interposed the defense of fraud, charging that plaintiff represented to defendants that they would be required to make but seventy-two payments of $9 each, and a witness called by both parties testified that at the time of the execution of the bond and mortgage he read the same over to the mortgagors just as they were printed and written, and that he did not think anything was said as to the number of payments, a judgment for plaintiff was 'not without evidence, p. 585.</p>

<p>Principal. and Agent. — Contract in Excess of Agent’s Authority. — Not Binding on Principal. — Defendant authorized an agent to sell his farm for a certain sum, the first payment to be made on February 1. The agent entered into a contract with the purchaser without the consent of the owner by the terms of which the first payment was not to be made until March 1, and without authority from his principal obligated his principal to furnish an abstract of title, pay taxes after the purchaser took possession, and-to credit on the purchase price any insurance the purchaser might receive from the destruction of any buildings on the land before the execution of the deeds. Held, that the contract was in excess of the agent’s authority and not binding on the principal unless ratified by him. pp. 590-597.</p> <p>Same. — Authority of Agent. — Knowledge.—Duty to Ascertain. — A person dealing with a real estate agent with knowledge that the authority of the agent rests upon correspondence with the principal must ascertain the extent of the agent’s authority, and is bound by the restrictions therein, pp. 597, 598.</p> <p>Same. — Contract in Excess of Agent’s Authority. — Satification.—An agent executed a contract for the sale of a farm, in excess of his authority, and sent one copy to his principal requesting that he have his wife sign it, and delivered a copy to the purchaser. The principal held the copy sent him and corresponded with the agent, making objections to the contract and counter proposals, the agent’s answers indicating the rejection thereof by the purchaser. The vendor did not communicate with the purchaser, but had reason to believe that the agent and the purchaser were in communication. Held, that the failure of the principal to communicate with the purchaser did not amount to a ratification of the contract, p. 598.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Nathan N. Spence against the city of Muncie. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clay Circuit Court; P. O. Colliver, Judge.</p> <p>Action by James M. Brown against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by James B. Clark against Thomas Huff and others. From a judgment for plaintiff, defendants Huff and another appeal.</p>

From Greene Circuit Court; O. B. Harris, Judge. Action by the State of Indiana, on the relation of George Davidson, trustee of Washington township, Greene county, Indiana, against Francis M. Hornbeck and others. From a judgment in favor of relator, defendants appeal.

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Scott K. Newcomb against William J. Yoe and another. From a judgment for plaintiff, defendants appeal.</p>

<p>From Superior Court of Vanderburgh County; W. M. Wheeler, Special Judge.</p> <p>Action by Douglas Dallam against the estate of Belle D. Stockwell, deceased. From a judgment in favor of defendant, plaintiff appeals.</p>

From Sullivan Circuit Court; O. B. Harris, Judge. Proceedings by Enoch J. Yager, executor of the will of Mary E. S. Canaday, deceased, against Henry D. Canaday and others for the sale of real estate. From a judgment against Canaday, he appeals.

<p>From Henry Circuit Court, John M. Morris, Judge.</p> <p>Action by Charles Andis against the Indianapolis & Greenfield Rapid Transit Company. From a judgment for plaintiff, defendant appeals.</p>

From Wabash, Circuit Court; A. H. Plummer, Judge. Charles Dudley was indicted for selling intoxicating liquors without a license. From a judgment of acquittal the State appeals.

<p>From Jasper Circuit Court; C. W. Hanley, Judge.</p> <p>Action by Jacob Dyke against the Presbyterian Church of Remington and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Nuisance. — Affidavit.—Slaughterhouses.— An affidavit charging defendant with unlawfully maintaining a certain building as a slaughterhouse near a public highway along which divers persons were continually passing, and permitting said slaughterhouse to be and remain filthy and offensive from decayed animal matter, the charge being substantially in the language of §2154 Burns 1901, was sufficiently certain to inform the court and jury upon what charge and for what crime defendant was to be tried, and was not bad for duplicity.</p>

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Elinore Gillespie against Margaret C. Hedekin, administratrix of the estate of Thomas B. Hedekin, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>Contempt. — Statement Filed by Judge. — Presumption.—A statement filed by the judge in a contempt proceeding confined to matters that occurred in the presence of the judge and in open court will be treated as importing absolute verity, p. 658.</p> <p>Same. — Disorderly Conduct of Attorney in Presence of Court. — When the conduct of an attorney was disorderly and his demeanor towards the court insulting and of such a character as to embarrass the proceedings of the court and impede the due administration of justice the court has power, on its own motion, to punish the guilty person summarily for contempt, pp. 656-658.</p> <p>Same. — Direct Contempt. — Inherent Power of Court. — Courts possess inherent power, aside from any pow'er the legislature may attempt to confer, to punish direct contempts, p. 658.</p> <p>Same. — Legislature May Regulate Procedure. — While it is not necessary to look to any statute to ascertain whether a particular act does or does not constitute a contempt, still the. legislature may, within limits, regulate the procedure in such cases, pp. 658, 659.</p> <p>Same. — Construction of Statute. — The word “arraigned” as used in §1023 Burns 1901 is used synonymously with “accused,” or “charged,” and the statute does not require that the accused be arraigned within the meaning, of the criminal code.' p. 660.</p> <p>Same. — Adjudication.—When the court adjudges the acts or conduct to be a contempt, its adjudication is .a conviction, p. 660.</p> <p>Same. — New Trial. — Appeal.—Where the punishment inflicted for contempt of court is a fine of $50 or more, or imprisonment, provision is made by statute for a motion for a new trial and rescission of the judgment, and, if the motion is overruled, an appeal, pp. 660, 661</p> <p>Same — Presence of Accused. — Presumption On Appeal. — Where on an appeal in a contempt proceeding it does not affirmatively appear from the record that the accused was present or that he was absent from court when the contempt proceedings were had against him, the presumption will be indulged on appeal that he was present., p. 661.</p> <p>Same. — Appeal and Error. — A recital in a motion to set aside a judgment in a contempt proceeding, incorporated in a hill of exceptions, that the judgment was rendered without any notice or appearance, and without giving appellant any opportunity to be heard, can not perform the office of a statement of the fact incorporated in a bill of exceptions, since the bill itself contains no evidence of any irregular proceedings. p. 662.</p> <p>Same. — Judgment.—Order-Book Entry. — Appeal and Error. — An order-book entry in a contempt proceeding reciting that on the 21st day of December “the following proceedings were had and entered of record” does not necessarily show that the court did not on December 16, when the appellant was present, adjudge the acts and conduct to be a contempt, since the statute does not require that the charge shall be reduced to writing immediately upon its being made, but requires that the charge (which may have been previously made orally) shall be reduced to writing, and “the same shall be substantially set forth in the order of the court on the same.” pp. 662, 663.</p>

<p>Negligence. — Street Railroads. — Injury of Child, on Track. — Instructions.— An instruction, in an action against a street railroad company to recover for the death of plaintiff’s infant son, that if the motorman could have discovered the presence of the child on the track by proper care and diligence, and could have known the peril of his position in time to have avoided the injury to the child, it was his duty to do so, and his failure to do so would constitute negligence on the part of defendant company, is not objectionable as to the care required of the motorman, when considered in connection with another instruction to the effect that the motorman was required to use only ordinary care. pp. 665-667.</p> <p>Negligence. — Injury of Child. — Non Sui Juris. — Where, in an action against a street railroad company for the death of plaintiff’s infant son, the complaint does not" allege that the child was non sui juris, that question was not in issue and should not have been submitted to the jury. p. 667.</p> <p>Same. — Action by Parent for Injury of Child. — Negligence of Parents. — In an action by a parent for the death of his infant child, the negligence of the parents is a proper question for the consideration of the jury. p. 668.</p>

<p>Contracts. — Conditions Precedent. — Repudiation.—Pleading.—In an action on a contract for damages for failure of defendant to construct a telephone line to plaintiff's premises, it was not necessary to aver in the complaint that plaintiff had erected, at his own expense, suitable poles on which to attach the wires as the contract required, where it was alleged that plaintiff was ready and willing to perform all of the conditions of the contract imposed upon him, and that defendant had repudiated the contract, pp. 672, 673.</p> <p>Contracts. — For Benefit of Third Person. — Enforcement.—A contract between two parties, made for the benefit of another, may be enforced by such other party, although he was not a privy to it, and no consideration passed from him to the party bound, p. 673.</p> <p>Same. — For Benefit of Third Person. — Acceptance Implied. — It is not necessary in a suit on a contract made by others for plaintiff’s benefit to allege an acceptance of the contract, since an acceptance is implied from bringing the suit. p. 674.</p>

<p>From Pike Circuit Court; E. A. Ely, Judge.</p> <p>Action by Frank E. Taylor against the School Town of Petersburg. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal. — Precipe.—Transcript.—Record.—The failure of- a transcript to disclose the filing of a precipe will not render the same defective; since it was the duty of the clerk, where there was no written precipe directing him to certify a portion of the record, to make a complete transcript of the proceeding, p. 685.</p> <p>Officers. — Truant Officer. — Oath.—A truant officer, under §6033b Burns 1901, is a public officer, and must qualify as provided by §7533 Burns 1901, before assuming the duties of the office, pp. 685, 686.</p> <p>Same. — Truant Officer. — Appointment.—The provision of §6033b Burns 1901, that the appointment of truant officers shall be made on the first Monday in May is directory, and does not preclude a subsequent appointment. p. 686.</p> <p>Officers. — Truant Officer. — Tenure. — Where one was duly appointed county truant officer, he was entitled to hold his office until the first Monday of the succeeding May, and until his successor was appointed and qualified, p. 686.</p>

<p>Bills and Notes. — Answer.—Non Est Factum. — Signature.—Execution.— In an action on a promissory note, an answer admitting that defendant “signed” the note sued on, but averring that thereafter, without his knowledge or consent, the note was materially altered, is insufficient, the averment of signature not being equivalent-to an averment of “execution.” p.688.</p> <p>Pleading. — Reply.—Plaintiff, by filing a reply, does not waive his exception to the action of the court in overruling his demurrer to defendant’s answer, pp. 688, 689.</p>

<p>From White Circuit Court; T. F. Palmer, Judge.</p> <p>Suit by Thomas J. High against Haney Beasey and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Railroads. — Death of Person on Track. — Complaint.—Contributory Negligence. — In an action against a railroad company for death, the complaint alleged that deceased was crossing the tracks of defendant company, and had reached one of two parallel tracks, when a passenger train one-half an hour late stopped on the farther, track, barring the progress of the deceased, and compelling him to stop on the nearer track, the escaping steam of the passenger engine making a loud noise; and that an irregular train not then due to pass, and bearing no light and giving no signals, approaching on the track on which decedent stood, ran over him. Held, that the complaint does not show that the deceased was guilty of contributory negligence, pp. 692-694.</p> <p>Same. — Death of Person on Track. — Complaint.—Contributory Negligence.— In an action against a railroad company for the death of a person on the track, the burden of establishing contributory negligence is, by §359a Burns 1901, placed upon the defendant, and it is therefore unnecessary to aver in the complaint that the person killed was not guilty of contributory negligence; nor is it necessary to state any facts with a purpose thereby to negative contributory negligence, p. 694.</p> <p>Death by Wrongful Act. — Person Killed in Illinois. — Complaint.—In an action against a railroad company for death by wrongful act in the state of Illinois, the statute of that state set out in the complaint required the action to be brought by the personal representative of the deceased, and'for the benefit of the widow and next of kin. The complaint averred that plaintiff was administrator, and that deceased left surviving him “as his only heirs at law,” his father, mother, and certain sisters and brothers. Held, that the complaint is not insufficient for failure to allege that the deceased left surviving him any widow or next of kin. pp. 694-697.</p> <p>Same. — Action by Personal Representative. — Complaint.—Where the right of action for death by wrongful act is given by statute to the personal representative alone, and he sues for the recovery of damages, which, when recovered, shall inure to the benefit of'the widow and next of kin of the decedent, it is necessary that he show in his complaint the existence of some person or persons who have suffered pecuniary injury through the death of his intestate, p. 698.</p>

From Superior Court of Marion County (57,932); J. L. McMaster Judge. Suit by Harry E. Hamilton against Edward F. Claypool and others, to which Theodore Stein, trustee, filed a cross-complaint. From a judgment for cross-complainant, Claypool and others appeal.

<p>From Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Francis M. Echelbarger against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Clarinda Curless against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Orange T. Florea against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Allen Circuit Court; Edward O’Rourke, Judge.</p> <p>Action by Caroline S. Bremer against Horace Mariotte. From a judgment for plaintiff, defendant appeals.</p>

<p>From Delaware Circuit Court; J. G. Leffler, Judge.</p> <p>Action by Fremont Wilson against the Consumers Gas Trust Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Delaware Circuit Court; J. G. Leffler, Judge.</p> <p>Action by Benjamin W. Couch against the Consumers Gas Trust Company. From a judgment for plaintiff, defendant appeals.</p>