Volume 34 — Indiana Appellate Court Reports

From St. Joseph Circuit Court; W. A. Funic, Judge. Celenda Tj. Chipman filed her current report as administratrix of the estate of Cassius H. Chipman, deceased. From a judgment sustaining certain exceptions filed by Millie Wells and husband, said administratrix appeals.

<p>Erom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Action hy the Perrin National Bank against Rufus S. Zaring and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>From Johnson. Circuit Court; W. J. Buckingham, Judge.</p> <p>Action by The Caxton Company against White River School Township. From a judgment for plaintiff, the defendant appeals.</p>

<p>Erom Wells Circuit Court: E. O. Vaughn, Judge.</p> <p>Action by Nancy Sanders against William PL Covault and another. Erom a decree for plaintiff, defendants appeal.</p>

<p>1. Master and Servant. — Coal Mines. — Dangerous Place. — Making Safe. — Assumption of Risk. — Where, in an action by an administrator for the death of his decedent on account of injuries received in a coal mine, it is alleged that such decedent was ordered by the mining boss to go to a certain place in such mine to explore, ascertain and locate a dangerous place in such mine and make the same safe; that pursuant to such order said decedent did so explore,' that he did not know that such place was extremely hazardous; that while carrying out such order, and without any fault on his part, slate fell on him, causing injuries from which he died; and that the defendant did not know of such danger, such complaint is not sufficient on demurrer, since it affirmatively appears that such decedent knew of the danger and that it was his duty under the employment to make such place safe, the ordinary risks incurred in such undertaking being assumed, and since the defendant was properly carrying out a duty imposed by the law. (§7472 Burns 1901, Acts 1897, p. 168.) p. 19.</p> <p>2. Same. — Master’s Duty. — Safe Place to Work. — The rule of “safe place” does not apply where an employe is engaged in making a dangerous place safe. p. 21.</p> <p>3. Same.- — Means of Making Dangerous Place Safe. — By statute (§7472 Burns 1901, Acts 1897, p. 168) it is the duty of the mining boss of a coal mine to make all dangerous places safe, and he is not required to do this personally, but may employ servants to do such work, and the ordinary risks of such work are assumed by such servants, p. 21.</p>

<p>Erom Allen Circuit Court; J. II. AUcen, Judge.</p> <p>Action by Herbert N. Towne against Thomas E. Ellison. Erom a judgment for plaintiff, the defendant appeals.</p>

<p>From Superior Court of Vanderburgh County; J. H. Foster, Judge.</p> <p>Action by Peter Aschoff against the City of Evansville. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Superior Court of Marion County (62,498); Vinson Garter, Judge.</p> <p>Action by Lida Wigmore against Edward E. Claypool for damages for personal injuries. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Decatur Circuit Court; B. L. Smith, Special Judge.</p> <p>Action by Daniel Davem and others against the Board of Commissioners of the County of Decatur. Erom a decree for defendant, plaintiffs appeal.</p>

Erom Delaware Circuit Court; G. II. Koons, Judge. Action by Dove S. Dillier, as administratrix de bonis non of the estate of William EL Eortner, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company. Erom a judgment for defendant non obstante veredicto, plaintiff appeals.

<p>Erom Delaware Circuit Court ; J. G. Lejjler, Judge.</p> <p>Action by Charles Leer against the Indiana Natural Gas & Oil Company. From a decree for plaintiff, defendant appeals.</p>

<p>From Tippecanoe Circuit Court; B. P. DeHart, Judge.</p> <p>Action by Bernhard Muller against James M. Fowler and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Health. — Powers of Board. — Authority.—By §6718 Burns 1894, Acts 1891, p. 15, §8, the board of commissioners of a county are ex officio a board of health, and it is their duty “to protect the public health by the removal of causes of diseases when known, and in all cases to take prompt action to arrest the spread of contagious diseases,” and in the exercise of their discretion within the authority conferred such board’s acts have the force of an act of the legislature, the whole authority of the State being included and delegated, p. 75.</p> <p>2. Same. — Legislative Powers of Board.- — Police Power. — Private Property. — Invasion of. — Judicial Question. — While the action of a board of health is usually legislative, and not subject to review by the courts, yet under the guise of the police power of the State, personal and property rights can .not arbitrarily be stricken down, and if such rights are so invaded, such board’s action is open to review by the courts, p. 75.</p> <p>3. Police Power. — Hospital.—Destmetion of Private Property.— Compensation.- — Where a board of health provides for the erection of a hospital for the benefit of the public health, and such erection destroys the value of private property, such action will be upheld by the courts only- when most clearly and unequivocally authorized, the distinction being kept clearly in, view between private property contaminated with contagious disease, and that which is not dangerous to the public health, p. 75.</p> <p>4. Same. — Destruction of Private Property. — Justification.—Where plaintiff’s private property has been destroyed by the State or one of its municipalities, it is not a sufficient answer in justification to say that the act of destruction complained of was performed in the exercise of the police power, but such answer must show that it was in the proper exercise of such power, taking into consideration all of the circumstances, p. 77.</p> <p>5. Same.- — -Grant to Municipality. — Presumption.—Where the State directs some specific act to be done, which, without such authorization would constitute a private nuisance, but does not give specific directions how the same shall be done, it can not be presumed, in the absence of a public necessity therefor, that the State would so exercise such power as to injure private property, p. 77.</p> <p>6. Municipal Corporations. — Statutory Powers. — Contagious Diseases. — Hospital.—Private Property: — Where a statute makes it the duty of the county board of health “in all cases to take prompt action to arrest the spread of contagious diseases,” if such board decides to build a hospital in such manner as to injure or destroy private property, it must be shown in justification thereof either that such act was expressly authorized by statute1 or is plainly and necessarily implied from the powers expressly conferred, and the burden of showing such justification is on such board, p. 77.</p>

<p>1. Bills and Notes.- — -Consideration.—Patent Right. — Where, in an action on a promissory note, not negotiable as an inland bill of exchange, it is answered that such note was given in consideration of certain patented articles, and the exclusive right to sell such patented articles in a certain county, and that the payee of such note had not caused any copy of his letters patent to be filed in the clerk’s office of such county; that he had caused no affidavit of the genuineness of such patent or that he had full authority to sell same, to be filed with such clerk; that he had filed no affidavit giving his name, age, residence or occupation; that no clause containing “given for a patent right” or “given for a right to manufacture a patented article” or any other words showing the consideration, was written into such note, such answer states a good defense to such note, since by §§8130, 8131 Burns 1901, Acts 1899, p. 112, a note given under such circumstances is forbidden, p. 85.</p> <p>2. Same. — Consideration.—Want of. — An answer, in an action on a prommissory note by an' assignee, averring a want of consideration, is sufficient, and it is not essential for such answer to show that such want existed before notice of the assignment had been given to the maker, p. 88.</p> <p>3. Same. — Fraud.—Where the payee of a note procured the maker thereof to execute such note by fraudulently representing to such maker that such payee had secured orders for the alleged patented article for which such note was given, from all the representative ' citizens of the different townships in the maker’s county and that such maker relied upon such false representations, and that in truth, no such orders were given, and such article was not salable except to a very few people, such fraudulent conduct is sufficient to vitiate such note and a defense setting up such facts is sufficient, p. 88.</p> <p>4. New Trial. — Weighing Evidence.- — Where there is some evidence tending to support the finding, the judgment below will not be disturbed. p. 89.</p> <p>5. Judgment. — Power of Appellate Court to Render. — Under the law of 1903 (Acts 1903, p. 338), the Appellate Court has no power to render a final judgment on the weight of the evidence, where the case is triable by jury, even though a trial by jury is waived by the parties and the court tries the same. p. 89.</p>

<p>From Bartholomew Circuit Court; F. T. Fiord, Judge.</p> <p>Action by Vincent F. Browning against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Negligence. — Contributory.—Defense.—The law of 1899 (Acts .1899, p. 58) making contributory negligence a matter of defense, did not change the. duties of a traveler attempting to cross a railroad track, p. 97.</p> <p>2. Railkoads. — Sighway Crossings. — Failure to Give Signals. — Duty of Traveler. — The fact that a railway train fails to sound the whistle and ring its bell for a highway crossing, is negligence, per se, but such failure does not excuse a traveler from using ordinary care in crossing the track, p. 98.</p> <p>3. Same. — Siglnoay Crossing.- — Degree of Care Required of Traveler. —The quantum of care required of a traveler in crossing a railway track with which he is familiar, is prescribed as a matter of law, and if there be any physical infirmities, or obstructions of any kind, greater precautions must be used than usual in ordinary cases, p. 99.</p> <p>4. Raileoads. — 'Train Visible to Traveler. — Presumption.—There is a presumption that a person saw and heard an approaching- train which he could have seen and heard by the use of ordinary care. p. 99.</p> <p>5. Same.- — Contributory Negligence of Traveler. — Where plaintiff’s decedent was familiar with the railway crossing on which he was killed, and the headlight of the engine was visible for two and a half miles when decedent approached within 40 feet of the track, and the noise of the train could have been heard for a much farther distance than 40 feet from the crossing, it must be held that plaintiff was guilty of contributory negligence in attempting to cross such track, p. 100.</p>

Erom Superior Oourt of Marion County (64,435); Vinson Garter, Judge. Proceedings in contempt in aid of an action by tbe Indianapolis Drop Eorging Company and others against tbe White River Lodge International Association of Machinists and others. Erom a finding of guilty, the defendants appeal.

<p>1. Bills and Notes. — Execution.—Complaint.-—Necessary Averments. ■ — Where a complaint on a promissory note alleged that defendant, a corporation, adopted and used the style of “R. J. Beatty, President,” in which to execute notes in the usual course of its business, and that such defendant in such name “executed” the note in suit, such complaint shows the formation of a complete contract, and it was not necessary for such complaint to show a promise to pay when a copy of the note was set out, or to show that such note was executed in the usual course of business, or that it was executed for a debt of the corporation, or to show that such note was “signed,” since “execution” includes signature as well as delivery, p. 110.</p> <p>2. Same. — Payable in Foreign State. — Law Merchant. — Presumption. —There is, strictly speaking, no general law merchant peculiar to any particular state, but the presumption is that the rules thereof are the same everywhere, the custom of merchants being similar over the commercial world, p. 112.</p> <p>3. Same. — Foreign Law. — IIow Provecí. — Where it is claimed that the note in suit is governed by the laws of a foreign state, it is not necessary that such foreign law should be statutory, since our statute (§484 Burns 1901, Acts 1881, p. 240, §342) provides that the 'unwritten or common law of one of the United States may be proved as a fact in the courts of this State, p. 113.</p> <p>4. Bills and Notes. — Payable in Foreign State. — What Law Governs. — A note executed in Indiana and made payable in a bank in a foreign state, is governed by the laws of such foreign state, p. 113.</p> <p>5. ' Same. — Law of Foreign State. — Presumption.—Decisions of Foreign State on Law Merchant. — Where a note is governed by the law merchant of a foreign state, the presumption is that such law merchant is the same as in this State, but the decisions of the highest courts of such foreign state in such case are binding, as to what that law is, on the courts of this State, p. 114.</p> <p>6. Same. — Complaint.—Law of Foreign State. — Sufficiency.—Where, in an action on a promissory note governed by the laws of a foreign state, the complaint alleges, that it is the common and unwritten law of such foreign state, established and adjudicated by the highest courts of such state, that such note as ■ set out is governed by the law merchant and is negotiable, and that a purchaser for value, without notice, before maturity, and in due course, takes such note free from any defenses, such complaint is sufficient as to such foreign law. p. 114.</p> <p>7. Same. — Ansiver.-—-Ultra Vires. — Failure and Want of Considerartion. — In an action on a note governed by the law merchant, executed by a corporation, answers of ultra vires, want of consideration and failure of consideration are all bad as against an innocent holder for value, p. 114.</p> <p>8. Res Judicata. — Law of Case. — Former Appeal. — The law as laid down on a former appeal is the law of the case all the way through, but only to the extent that the facts remain the same. p. 115.</p> <p>9. Evidence. — Depositions.—Foreign Notary.- — Where a deposition was taken upon notice before a notary public in a foreign state, and such notary certifies that the witness was duly sworn; that his testimony was reduced to writing by her; that it- was taken at the time and place specified; that defendant appeared by attorney, and such certificate was signed by such notary, and her seal was attached, a motion to suppress for the reason that it did not appear that by the laws of such foreign state a notary public had any authority to take depositions or administer an oath was properly overruled, since it appears that such notary has complied with our statute (§404 Burns 1901, Acts 1881, p. 240, §327) which furnishes the rules and methods for taking depositions, p. 110.</p>

<p>1. Landlord and Tenant. — Complaint for Rent Toy Assignee of Landlord. — Sufficiency.—Where, in an action by a landlord against his tenant for rent from January 0, to July 25, 1900, the complaint alleged, that such rent was paid by the tenant to such landlord’s grantor to July 25, 1899; that by the terms of the lease the tenant should pay $56 a year -until a well' was drilled, such rent to be deposited in a bank; and that rent was paid to July 25, 1899, since which time no rent has been paid, is sufficient; since it does not show that such rent was to be paid in advance or at the end of the year, and since the averment that no payments have been made since July 25, 1899, must be held to mean no payments to plaintiff, and as it does not appear that defendant had notice that plaintiff had purchased the land, there could be no default in not paying such rent to such plaintiff, for it might rightfully have been paid to some one else. p. 123.</p> <p>2. Quieting Title. — Gas and Oil Lease. — Gomplamt.-—Sufficiency.—• Where, in an action by a landlord against his tenant to quiet title, the complaint averred the execution of the lease and that such tenant was claiming some rights and privileges under such lease, which were adverse and a cloud upon plaintiff’s title; that such tenant failed to pay rent and furnish gas as provided in such lease, and where the provisions of the lease were not set out except by way of recital, it must be held that such complaint was insufficient, since the presumption obtained as against the pleader that such lease was still valid and in force, such complaint failing to show that there were not good reasons for defendant’s claims, p. 123.</p>

<p>Erom Superior Court of Alleu County; O. N. Seaton} Judge.</p> <p>Action by John Knoll and another against George Baker and another. Erom a decree for defendants, the plaintiffs appeal.</p>

<p>Erom St. Joseph Circuit Court; W. A. Funk, .Judge.</p> <p>Action by Petronella Rosniakowski against Jozef Rosniakowski for divorce. Erom a decree for plaintiff, the defendant appeals.</p>

<p>Erom Boone Circuit Court; S. B. Artman, Judge.</p> <p>Action by Edwin P. Conrad against the Cleveland, Cineinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for defendant, the plaintiff appeals.</p>

<p>From Whitley Circuit Court; Joseph W. Adair, Judg.e.</p> <p>Action by Matilda J. Sihler against the Ft. Wayne Trust Company. From a decree for plaintiff, defendant appeals.</p>

<p>Erom Lawrence Circuit Court, James B. Wilson, Judge.</p> <p>Aetion by Mary Moore against tbe Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Superior Court of Vanderburgh County; J. H. Foster, Judge.</p> <p>Action by Henry Busche against Annie Pittman. Erom a decree for defendant, the plaintiff appeals.</p>

Erom Superior Court of Vanderburgh County; J. II. Foster, Judge. Action by Morris Ellis, a minor, by his next friend John Ellis against Charles H. Espenlaub and another.’ Erom a judgment for plaintiff, defendants appeal.

Erom Ohio Circuit Court; R. L. Davis, Special Judge. Edgar U. Bailey and others filed their petition for a change of a public highway before the board of commissioners. Llora Scherer and others appealed to the circuit court. Erom a judgment for petitioners, remonstrants appeal.

<p>1. Contracts. — Liquidated Damages. — Penalty.—A contract entered into between the cross-complainant, an extensive dealer in stone in Indianapolis, and the plaintiff, the owner of a stone-quarry, providing among other things that for all the stone sold by the cross-complainant for the plaintiff he should receive a five per cent, commission, and for all stone sold in such city by the plaintiff himself or through others than cross-complainant, the cross-complainant should receive twenty-five per cent, commission, such contract further binding cross-complainant not to sell stone for others than those named in the contract, and not forbidding the plaintiff to sell personally or through others in such city, such contract for a commission of twenty-five per cent, must be held to be liquidated damages and not a penalty, since the loss to cross-complainant can not “be easily and precisely determined by any pecuniary standard” and the per cent, fixed can not be said to be greatly disproportionate to the loss. p. 177.</p>

<p>From Porter Circuit Court; II. B. Tuthill, Judge.</p> <p>Action by Joseph Fordeck against the Standard Oil Company of Indiana. From a judgment rendered on a¡ verdict for $1,800, defendant appeals.</p>

From Marion Circuit Court (10,537) II. O. Allen, Judge. Action by Elizabeth Peirce as administratrix of the estate of Ferdinand N. Armstrong, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment rendered on a verdict for $2,250, defendant appeals.

<p>From Huntington Circuit Court; J. T. Gox, Special Judge.</p> <p>Action by Enos T. Taylor and others against Firman D. Smith and another. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Pleading. — Estoppel.—Knowledge of Party. — Fraud.—Where, in an action by the owners of real estate to set aside and declare void a judgment in partition procured by defendant and the plaintiffs’ father by joining such children, who were minors, as parties plaintiff, without their knowledge or consent, the defendant answered that at the commissioner’s sale of the lands involved in such judgment in partition he was the purchaser; that he immediately took possession of such lands and has held possession ever since; that plaintiffs live in the vicinity and knew of such occupancy and of the improvements thereon made by the defendant; that plaintiffs are all of age; that plaintiffs have never made any claim to such lands, nor complained of any irregularities in such judgment and sale; that plaintiffs have rented such real estate and paid rent to the defendant and have always recognized defendant’s ownership thereof, such answer is bad on demurrer as a plea in estoppel, since no facts are shown whereby plaintiffs induced defendant to change his position injuriously, no - fraud is shown' on their part, no deceit practiced, and since such answer fails to allege that the defendant did not know all of the facts, p. 209.</p> <p>2. Limitation of Actions.- — Void Judgment. — Setting Aside. — Fraud. ■ — -Where, in an action by the owners of real estate to set aside and declare void a judgment in partition procured by defendant and the plaintiffs’ father, by joining such children, who were minors, as parties plaintiff, without their knowledge or consent, the defendant answered the six-year statute of limitations, such answer was bad on demurrer, since the relief sought was against a judgment obtained without jurisdiction over the person of the plaintiffs, and fraud was merely an incident and not the gist of the action, p, 209.</p> <p>3. Judgment. — Jurisdiction.—Declaring Void. — Where it is shown that the defendant, a tenant in common of certain lands with the plaintiffs, and the plaintiffs’ father joined the children, who were minors, as parties plaintiff, in a suit for partition, without plaintiffs’ knowledge or consent; that the father was appointed commissioner; that as such commissioner he sold the lands to the defendant; that no consideration was ever paid to the plaintiffs therefor; that nothing was paid to such commissioner as such for such lands; that such proceedings were had for the purpose of divesting the title of plaintiffs; and that it was all done without the knowledge or consent of the plaintiffs, a decree should be awarded plaintiffs setting aside such judgment, p. 211.</p>

<p>Prom Superior Court of Allen County; O. N. Heaton, J ndge.</p> <p>Action by John O. Hursh against Emillus Case. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Greene Circuit Court; O. B. Harris, Judge.</p> <p>Action by Mary E. Wicker, a‘s administratrix of the estate of Elmer J. Wicker, deceased, against tbe Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

Erom Superior Court of Marion County (63,492) ; V. G. Clifford, Judgq pro tem. Action by Seth M. Richcreek against Mary K. Russell and another. Erom a decree for defendant Mary K. Russell on her cross-complaint, the plaintiff appeals.

<p>From Orange Circuit Court; T. B. Bushirk, Judge.</p> <p>Action by Carolus C. King and others against the Board of Commissioners of the County of Martin. From a decree for defendant, plaintiffs appeal.</p>

<p>Contracts. — Partnership.—Bo-each.—Damages.—Where, in an action by a member of a partnership for damages for breach of a contract for the purchase of his interest, it is shown that the contract sued on had never been completed, and that the final terms thereof had never been adjusted, such cause of action fails, since the plaintiff in such suit must prove a contract complete in all of its terms.</p>

<p>Erom Marion Circuit Court (7,659); H. O. Allen, Judge.</p> <p>Action bj Ivan N. Walker against the estate of J. Warren Sawyer, deceased; Sarah R. Sawyer, administratrix. From a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Vanderburgh. County; John H. Foster, Judge.</p> <p>Action by Hal. H. Branham against the Pacific Mutual Fife Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant. — Dangerous Works and Ways. — Promise to Repair. — Assumed Risk. — Where a servant enters upon an employment the dangers of which are known to him, he must be held to assume such risks unless the master expressly promises to remedy such defects, and the promise is the basis of the exception, p. 250.</p> <p>2. Same. — Promise to Repair Defect. — Lessening Danger. — What Risk Assumed hy Servant After Promise to Repair. — Where the servant objects to working in a place because of dangers, and the master promises to repair, such servant must show that such repairs would avoid the dangers, and if the servant continue, he is not relieved from all risk, but must not expose himself to known dangers, although there be such promise to repair, p. 256.</p> <p>3. Pleading. — Complaint.—-Master and Servant. — Dangerous Wo?-7cs and Ways. — Promise to Repair. — Where a complaint by a servant against his master for damages for personal injuries shows, that such servant was employed as fireman; that in firing he used slabs; that the cut-olf saw from which such slabs were received was in the second story and that the operator pitched the slabs from such story so as to fall in front of the furnace on the first floor; that plaintiff could not see such operator, nor could the operator see plaintiff; that defendant promised to repair by putting in a chute; that by reason of such promise plaintiff remained and was injured, and there was no allegation showing that such chute would have avoided or lessened the dangers, such complaint is bad. p. 257.</p> <p>4. Master and Servant. — Dangerous Machinery. — Factory Act.— Chute. — Where a sawmill consists of a two-story building and a cut-off saw is operated in the second story, and the slabs from such saw are pitched so as to fall in front of the furnace on the first floor, the failure to provide a chute in which such slabs may be carried does not constitute negligence under section nine of the factory act (Acts 1899, p. 231). p. 258.</p>

<p>1. Pleading. — Complaint.—Warranty.—Breach.—Where the defendant warranted that a corn-husker, which he sold to the plaintiff, was well made, of good material, and that it would do as good or better work than others of its kind, and the complaint alleged that such eorn-husker wholly failed to husk corn properly; that it shelled a great deal of the corn; that its cog-wheel, snapping-roller, shucking-rolls and belt-tightener constantly broke and rendered it impossible to husk corn, it was sufficiently shown that such machine failed to comply with the terms of such warranty, p. 262.</p> <p>2. Same. — Complaint.—Breach of Warranty. — Consideration.—Failure. — Where a machine, sold to the plaintiff, was warranted to be of a certain material and to do certain work, and on failure to fulfil such warranty the defendant had the right to furnish a new machine that would fulfil the conditions, or return the plaintiff’s money and notes, and it was alleged in the complaint that such machine did not fulfil the warranty and was returned to the defendant, who accepted it, and that the defendant failed and refused to return such money and notes or to furnish or tender such new machine, the failure of consideration for such notes was sufficiently shown, p. 262.</p> <p>3. Same. — Complaint.—Alternative Option 6y Defendant. — Demand. —Where a contract for the sale of a corn-husker provided that if such busker did not fulfil the warranty given, the plaintiff would have the right to return it, and the defendant would have the right to furnish a new one that would fulfil the warranty or return the money and notes given in payment thereof, and the complaint showed a return and acceptance of such machine by defendant, it was not necessary for the plaintiff to show a demand for such new machine, since such option belonged to the defendant, and the burden was on him to show that he duly offered such new machine and that plaintiff refused it; otherwise, plaintiff’s cause of action for the cancelation of the notes given was perfect, p. 264.</p> <p>4. Trial. — Special Finding.- — Venire de Novo.- — Where, in an action for the cancelation of notes and a mortgage given as the purchase price of a corn-husker, the court, in its special finding, failed to set out the complete contract of the parties for such sale, but did set out those parts the violation of which caused the rescission of the sale, a motion for a venire de novo because of such failure was properly overruled. p. 265.</p>

<p>Contkacts. — Acceptance of Article Conditioned on “Satisfaction of Purchaser." — Test.—Rejection.—Where a certain furnace device was contracted for by defendant and it was provided in such contract that defendant should have a certain time in which to test same, and if at the expiration of such time such device fulfilled the warranty given, and was constructed in a good workmanlike manner, and “to the satisfaction of said second party,” and the defendant notified plaintiff within the time that he could not accept the device, and thereby rejected same, the plaintiff can not recover.</p>

<p>From Superior Court of Marion County (59,414) ; John L. McMaster, Judge.</p> <p>Action by James N. Sbockney against Archibald M. Arbaugh and others. From a judgment- for plaintiff, defendants appeal.</p>

<p>From Hamilton Circuit Court ; John F. 'Neal, -Judge.</p> <p>Action by Joseph Irvin against the City of Frankfort. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Trial. — Evidence.—Deposition.—Variance Between Place m Notice and Place Where Taken. — Suppression.—Where notice was given to defendant that plaintiff would take the deposition of a witness at “the office of H. O. Stover, 725 Walnut street,” Philadelphia, Pennsylvania, and the deposition was taken, in the absence of defendant, at “the office of William O. Stover, 727 Walnut street,” a motion to suppress should have been sustained, since by statute the notice to take must show a fixed place and a definite time, and for aught that appears defendant may have appeared at the time and place appointed.</p>

<p>From Wayne Circuit Court, R. O. Fox, Judge.</p> <p>Action by the Cincinnati, Richmond & Muncie Railroad and another against Louisa II. White for the condemnation of land. From a judgment in favor of defendant for less than she claimed, she appeals.</p>

<p>1. Insurance.- — Mutual Benefit Certificate.- — Beneficiary.-—Tested Interest. — A beneficiary in a mutual benefit certificate acquires no vested interest in such certificate until the death of the assured, and such assured may without such beneficiary’s consent make a new appointment unless forbidden by the organic law or rules and regulations of the association, p. 300.</p> <p>2. Same. — Mutual Benefit Certificate. — Laws of Association. — The assured, in a mutual benefit association takes a certificate subject to the reasonable rules, by-laws and regulations of the association issuing it, such regulations forming a part of the co'ntract. p. 303.</p> <p>3. Same. — Mutual Life. — Beneficiaries.-—Creditors.—Death of Creditor Beneficiary Before Assured. — Where the assured had a benefit certificate made payable $3,000 to a brother to secure such brother for money due such brother from assured, and $1,000 each to assured’s two sisters, and such brother predeceased the assured, and the bylaws of the insurer association provided that upon the death of a beneficiary, the benefit should be paid to the surviving beneficiary or beneficiaries, each sharing pro rata, unless otherwise provided in the benefit certificate, such two sisters were entitled to the full bene.fit, and such brother’s administrator was not entitled to any part thereof, p. 303.</p>

Erom Superior Court of Madison County; Edward D. Reardon, Special Judge. Action by Louis B. Barrett against Pleasant Kisling for the dissolution of a partnership and an accounting. Erom a decree for plaintiff, defendant appeals.

<p>1. Pleading. — Complaint.—Negligence.—Raib-oads.—Where the complaint shows that defendant was running a freight-train in the city of Indianapolis; that at a certain street the train was stopped and was divided so as to open the street; that while plaintiff was crossing the tracks along the line of the sidewalk a section of said train was “carelessly and negligently, suddenly and violently, pushed backward without the ringing of any bell,” or notice or signal of any kind, and “without anyone at the rear of the train to give warning to travelers,” whereby plaintiff was injured, etc. — an ordinance of such city forbidding the moving of any train backward without a “lookout” at the rear, and the ringing of the bell — such complaint is sufficient, p. 311.</p> <p>2. Negligence. — Railroads.—Backing Car Across Street in City.— Ordinance. — Where defendant, without the ringing of its bell or stationing a “lookout” at the rear of its train, in violation of a city ordinance, backs its freight-train across the sidewalk, causing the injuries complained of, such defendant is guilty of actionable negligence, the purpose of such ordinance being for the protection of travelers, and the defendant’s cutting of its train and opening the street being an invitation to travelers to pass. p. 314.</p> <p>3. Same. — Contributory Fault. — Where the evidence shows that plaintiff undertook to cross the street between the sections of a freight-train which was cut to open the street, and, in passing, he went within three feet of the rear of one of such sections, and because of the backing of such section plaintiff was injured, the question of his contributory negligence was for the jury. p. 317.</p> <p>4. Same. — Presumption that Railroad Company Will Not Violate the Law nor City Ordinance, — Contributory Fault. — A traveler has the right to presume that a railroad company will not violate the law of the State, nor the ordinances of a city, and he may rely ujion such presumption until there is evidence to the contrary, the question of his contributory fault, or want of due care, being for the jury, p. 317.</p> <p>5. Tkial. — Erroneous Admission of Evidence. — during.—Where the court erroneously excludes certain evidence, its subsequent admission cures such error, p. 319.</p>

<p>1. Quieting Title. — Allegation of Fee-Simple and Proof of Equitable Title.- — The plaintiff in an action to quiet title must set out the nature of his title, and if a fee-simple title is alleged, recovery can not be had on proof of an equitable title, p. 322.</p> <p>2. Estates. — Fee-Simple.-—Statute of Uses. — Construction.—Where land is bought by a father, paid for with his money, title taken in his name, rented by him, taxes paid by him, no contract made as to transferring title to anyone, no trust declared in the deed nor otherwise, and no attempt to do so, though he told his daughter it would be hers, and that he bought it for her, and she made improvements on it with his knowledge and consent, still, such title does not pass under the statute of uses to such daughter, since the father has more than a nominal title, and also has the power of disposition and management thereof, p. 322.</p>

<p>Eroni Blackford Circuit Court; Edwin C. Vaughn, Judge.</p> <p>Action by James W. Wilson and another against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company for damages for breach of covenant. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>From Daviess Circuit Court; Glinton K. Tharp, Special Judge.</p> <p>Action by Grace Quillen against .tbe Baltimore & Ohio-Southwestern Railroad Company and others. From a judgment for plaintiff, -defendants appeal.</p>

From Clark Circuit Court; James K. Marsh, Judge. Action by Harry Bower, by his next friend, against the Baltimore & Ohio Southwestern Railroad Company. After verdict, plaintiff amended his complaint by substituting William P. Gillard as administrator of the estate of Walter Bower, deceased, as plaintiff. Judgment for plaintiff. Defendant appeals.

<p>Erran Yigo Circuit Court; James E. Piety, Judge.</p> <p>Action by Samuel Oheelc against Morgan Preston. Erorn a judgment for defendant dismissing the cause, plaintiff appeals.</p>

Erom Gibson Circuit Court; O. M. Welborn, Judge. Prosecution by tlie State of Indiana against tbe Acme Eertilizer Company for maintaining a public nuisance. Erom a judgment of gnilty and assessing a fine of $100, tlie defendant appeals.

<p>1. Counties. — Voluntary Services. — Liability.—Where the clerk of the circuit court, without authority from the board of commissioners, hires persons to do janitor service for his office, paying- them therefor, such expenditures were voluntary, and there being no statute on which to found such claim, it constitutes no liability as against the county, the mere beneficial character of the service not being sufficient to support such claim, p. 352.</p> <p>2. Sake. — Board of Commissioners. — Cleric.—Agency.-—The clerk of the circuit court is not an agent of the board of commissioners, and pay for services in doing janitor work at the request of such clerk alone can not be enforced against the county, although such board might, in their discretion, have contracted for such services, p. 353.</p>

<p>1. Pleading. — Theory.—Redundancy.—Prayer.—A complaint must, proceed upon a definite theory, but if a precise theory is deducible from the facts alleged, redundancy will not destroy same, and in determining such theory, the prayer may be considered, p. 304.</p> <p>2. Pleading. — Complaint.—Setting Aside Fraudulent Conveyance.— Insolvency of Debtor. — A complaint to set aside a fraudulent conveyance must allege the insolvency of the debtor, p. 3G5.</p> <p>3. Liens. — Vendor and Purchaser. — Subsequent Purchasers with Uotice. — The purchaser of real property takes the same charged with an equitable lien in favor of his vendor for any unpaid purchase money, unless such vendor has by his acts estopped himself from asserting such lien, and a subsequent purchaser with notice, as well as the heirs of such purchaser, takes such land subject to such lien, p. 365.</p> <p>4. Same. — Vendor and Purchaser. — Satisfaction.—The foreclosure of a vendor’s lien and sale of the property under such decree and a ■ failure to redeem during the year for redemption, defeat the lien of such vendor as to any unsatisfied part of the judgment or debt, p. 366.</p> <p>5. Same. — Vendor and Purchaser. — Subsequent Grantee Without Consid&ration. — Where the purchaser of real property, charged with a vendor’s lien, conveys such property to his wife without consideration, the vendor’s lien is not defeated, p. 367.</p> <p>6. Same. — Agreement of Parties. — An agreement between the parties will not alone authorize the court to establish a lien by implication, but any such agreement or promise is proper evidence to be considered by the court in determining the existence of such lien, p. 367.</p> <p>7. Same. — Merger in Judgment. — The lien of the vendor is not merged so as to be defeated by a release of a decree establishing same, when it is shown that the release was obtained for the purpose of borrowing money for the payment of a prior encumbrance, and that there was an agreement that such lien would not be extinguished by such release of such decree, p. 368.</p> <p>8. Pleading. — Complaint.—Forecloswe of Vendor’s Lien. — Sufficiency. —Where it is shown in a complaint that defendant did not pay the purchase money for lands bought by him from plaintiff; that the identical land was sought to be sold to make payment of such unpaid purchase money; that such land had been conveyed by the defendant husband to defendant wife without consideration to defeat the collection of such unpaid purchase money, and that the plaintiff had never released his lien either by waiver or estoppel, such complaint is good on demurrer, p. 368.</p> <p>9. Same. — Complaint. •— Fraudulent Conveyance. — Sufficiency. —An allegation in an action to declare fraudulent and void a certain conveyance and to subject such land to a vendor’s lien that defendant “had not, nor has he since, nor has he now, sufficient other property subject to execution to pay his debts, and especially to pay the said amount due this plaintiff,” is sufficient to show that the land described was subject to execution, p. 368.</p> <p>10. Pleading. — Complaint.—Fraudulent Conveyance. — Failure to Allege Value of Property. — Harmless Error. — Where, in a complaint to set aside a fraudulent conveyance and subject land to a vendor’s lien, it is not alleged what the value of such land is, such failure is one that can not harm the defendant, and is not a reversible error, p. 369.</p> <p>11. Same. — Complaint. — Fraudulent Conveyance. ■— Consideration. —Want of.- — Failure to Allege.- — Where a complaint to set aside a fraudulent conveyance, made by the husband to his wife, alleged either, (1) that the wife knew of the husband’s indebtedness, and of his purpose to defraud his creditors, and that she received such conveyance to aid or assist him, or, (2) that no consideration was paid, such complaint is sufficient, p. 369.</p> <p>12. Same. — Answer.—Vendor’s Lien. — Waiver.—An answer, in an action to foreclose a vendor’s lien, attempting to avoid such lien by showing an extinguishment by the lienor having a decree rendered in his favor in a former action on a greater amount of land than was included in the conveyance, must also show such facts as will amount to an agreement, or that the parties did agree to such relinquishment at the time such decree was rendered, p. 370.</p> <p>13. Same. — Answer.—Vendor’s Lien. — Extinguishment.—An answer, in an action to foreclose a vendor’s lien, attempting to show an ex-tinguishment thereof by a former decree of foreclosure of such lien and a sale thereunder, is bad, where it also shows a redemption from such sale by the owner and the postponement of the payment of plaintiff's lien and decree by the execution of certain notes evidencing such lien, which notes were the ones involved in the pending suit, p. 370.</p> <p>14. Trial. — Fraudulent Conveyance. — Special Finding. — Failure to Find Value.- — Harmless Error. — Where the special finding, in an action to declare void a conveyance of real estate and to subject same to a vendor’s lien, fails to show the value of such property, such failure does not harm defendant, and is not a reversible error, p. 371.</p> <p>15. Same. — Fraudulent Conveyance — Special Finding. — Failure to Find Insolvency. — Where the special finding, in an action to foreclose a vendor’s lien, shows that defendant “was on the date of the execution of the deed to his wife, and has been continuously ever since, and now is, insolvent,” is sufficient to show that he had no property subject to execution at the time of such conveyance and at the filing of the suit. p. 371.</p> <p>16. Same. — Motion to Modify Judgment. — Reason Given.- — A motion to modify a judgment by striking out certain specific parts thereof must show the reasons therefor, since the trial court is entitled to know the grounds on which such motion Is made. p. 372.</p> <p>17. Appeal and Error. — Equity Case. — Weighing Evidence on Appeal. — In an equity cause tried prior to the taking effect of the law of 1903 (Acts 1903, p. 338, §8), the Supreme and Appellate Courts will not weigh the evidence, and where the evidence tends to support the finding, the judgment of the trial court will not be disturbed. p. 372.</p>

Erom Huntington Circuit Court; James G. Branyan, Judge. Action by Melissa Risser against Jesse M. Dungan and others. Erom a decree in favor of defendants, the plaintiff and certain cross-complainants appeal.

<p>From Crawford Circuit Court; O. W. Gook, Judge.</p> <p>Action, by Jacob W. Davis, as administrator of tbe estate of Mary E. Davis, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Tipton Circuit Court; Walter W. Mount, Judge.</p> <p>Action by Della Leonard against John Whetstone and wife. Prom a judgment for defendants, plaintiff appeals.</p>

<p>From Miami Oireuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Daniel W. Yeagley against the Eire Association of Philadelphia. From a judgment for plaintiff, defendant appeals.</p>

Erom Harrison Circuit Court; O. W. Oook, Judge. Prosecution by tbe State of Indiana against Harriet Tab-' ler and James R. Tabler for maintaining a public nuisance. Erom a judgment qua siting the indictment, the State appeals.

<p>1. Trim. — Interrogatories.—Error in Overruling Demurrer to Answer. ■ — Harmless.—Where, in an action on a promissory note, issue is joined on an answer of payment, and the jury in answer to an interrogatory said that such note had been paid prior to the bringing of the suit, error in overruling a demurrer to another paragraph of answer is harmless, since payment is a complete defense, and completely extinguishes the cause of action, p. 400.</p> <p>2. Appeal and Error. — Interrogatories.—Refusal to Require More Specific Answer. — Failure to Bring up Evidence. — Where, in an action on a note, issue was joined on the question of payment, an interrogatory was submitted to the jury asking when and by whom such note was paid, and the jury in answer said “can’t say by whom or when; note was marked ‘paid,’ ” a motion to require the jury to answer more definitely can not be considered on appeal, where the evidence is not brought into the record, since the evidence might not warrant a more specific answer: p. 401.</p> <p>3. Trial. — Interrogatories.—Failure to Require More Specific Answer. —Harmless Error. — Where the party submitting interrogatories would not be entitled to recover, regardless of what the answer to a certain interrogatory might be, it is a harmless error for the court to refuse to compel the jury to make its answer to such interrogatory more specific, p. 402.</p>

<p>Erom Posey Circuit Court; O. M. WeTborn, Judge.</p> <p>Action by Cíate C. McKinney against the Evansville & Terre Haute Kailroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

From Porter Circuit Court; Harry B. Tuthill, Judge. Action by Helen Ernest as administratrix of the estate of Wilber J. Ernest, deceased, against the Grand Trunk Western Railway Company. From an order sustaining a demurrer to plaintiff’s second paragraph of complaint, plaintiff appeals.

Erom Allen Circuit Court; Joseph W. Adair, Special Judge. Action by Charles W. Branstrator, as administrator with the will annexed of the estate of William Branstrator, deceased, against Thomas E. Ellison and others. Erom a decree for plaintiff, defendants appeal.

<p>Erom Blackford Circuit Court; Edwin O. Vaughn, Judge.</p> <p>Actiou by Noab Lucas against tbe Jobnston Glass Company. From a decree for plaintiff, tbe defendant appeals.</p>

Erom Superior Court of Madison County; Henry C. By an, Judge. Action by James E. Buckland against the Union Traction Company of Indiana for damages for personal injuries. Erom a judgment on a verdict for plaintiff for $500, defendant appeals.

<p>1. Landlord and Tenant. — Lessee.—Assignee.—Covenant.—Liability. — Where a lessee enters into a contract with his landlord, and afterwards assigns his lease, such lessee continues liable upon his express covenants, but the assignee becomes liable upon those covenants that run with the land, the lessee being liable because of privity of contract, the assignee because of privity of estate, and an assignee in possession, or who has the immediate right to possession, under a lease when rent falls due, will continue liable notwithstanding a subsequent assignment, p. 427.</p> <p>2. Same. — Lease.-—Parol Surrender.■ — Statute of Frauds. — A parol agreement between the lessor and lessee to substitute an assignee of the lessee and to bind the assignee to the terms of the lease and relieve the lessee, is void as against the statute of frauds, such lease being for an interest in land and not being for three years or less. p. 428.</p> <p>8. Same. — Lease.—Incorporeal Hereditament. — Parol Surrender.— The written lease of an incorporeal hereditament can not be surrendered except by a written instrument, p. 428,</p>

From St. Joseph Circuit Court; Walter A. Funle, Judge. Action by Peter Sokola, as administrator of the estate of Anton Sczmankowski, deceased, against the Central Union Telephone Company and tire South Bend Electric Company. From a judgment for defendant South Bend Electric Company and for plaintiff on a verdict for $6,000 against the Central Union Telephone Company, the telephone. company appeals.

From Green© Circuit Court; Orion B. Harris, Judge-. Petition by Sarah E. Curtis and others for the establishment of a public highway. Josiah O. Harris filed a remonstrance. From a judgment establishing such highway, remonstrant appeals.

Erom Bartholomew Circuit' Court; Hugh Wiclcens, Special Judge. Action by Emma L. Neighbors, as trustee under the will of Mathias Nauman, deceased, against Eremont Davis and others. Erom a decree for plaintiff, defendants Eremont Davis and Allie Davis appeal.

Erom. Tippecanoe Circuit Court; B. P. DeHart, Judge. Action by Elizabeth A. Kelley against Edwin R. Rush, as administrator of the estate of Thomas J. Kendall, deceased and others. Erom a decree in favor of plaintiff, defendants appeal.

<p>Erom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Action by James T. Sbipp against Charles E. Delaney and wife. Erom a decree for plaintiff, defendants appeal.</p>

<p>From Marshall Circuit Court; Joseph W. Adair, Special Judge.</p> <p>Action by David Fertig against the Pennsylvania Company. From a judgment on a verdict for $1,200, defendant appeals.</p>

From .Jasper Circuit Court; J. W. Osiuald, Special Judge. Action by John Deane against Alfred C. Robinson. From a judgment dismissing the cause of action on appeal from a justice of the peace, plaintiff appeals.

Erom Monroe Circuit Court; James B. Wilson, Judge. Application by Enos S. De Moss for license to sell intoxicating liquors, to which William L. Bryan and others file a remonstrance. From a judgment of the circuit court reversing a judgment of the board of commissioners refusing such license, the remonstrants appeal.

<p>From "Whitley Circuit Court; Joseph W. Adair, Judge.</p> <p>Action by Isaac Van "Winkle against the New York, Chicago & St. Louis Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Sullivan Circuit Court; Orion B. Harris, Judge.</p> <p>Action by David Hollenback, Jr., against William H. Poston. From a decree for defendant, tbe plaintiff appeals.</p>

<p>From Porter Circuit Court; Willis O. McMahan, Judge.</p> <p>Action by Robert M. Phillips, as trastee and individually, against Charles Gr. Hutchinson and others. From a decree for defendants, plaintiffs appeal.</p>

Erom Elkhart Circuit Court; Joseph D. Ferrall, Judge, Action by Jeanette G. Johnson and another, executors, against Mary S. Sherwood. Erom a decree for defendant on her counter-claim, plaintiffs appeal.

<p>From Tipton Circuit Court; James F. Elliott, Judge.</p> <p>Action by William P. Siceloff against the Union Traction Company of Indiana. From a judgment on a verdict for $1,200, defendant appeals.</p>

<p>Erom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Everett Hawkins against George A. Doyle & Co. and others. Erom a judgment for pláintiff, defendants appeal.</p>

<p>1. Appeal and Eeeoe. — Decedents’ Estates. — Where an action does not involve the exercise of probate jurisdiction, an appeal from a judgment therein is governed by the civil code, though an administrator be a party, p. 521.</p> <p>2. Same. — Term-time.—To constitute a term-time appeal there is requisite (1) an appeal prayed during the term at which judgment is rendered, (2) the penalty of bond must be fixed and surety named during such term, (3) the bond must be filed during term, or time fixed by court, and the bond filed within such time, (4) the transcript must be filed in Supreme Court within 00 days from filing the bond, p. 521.</p> <p>3. Same. — Term-time.—Failure to Stay. — Where an executor desires to take an appeal under the civil code he must ask for a stay of the proceedings in the court below, and in the absence of an order granting such stay, an appeal taken will be treated as a vacation appeal, p. 522.</p> <p>4. Same. — Term-time.—Failure to File Transcript in Time. — Where a term-time appeal is prayed and the appellant fails to file his transcript within the time allowed by law for term-time appeals, such appeal must be treated as a vacation appeal, p. 522.</p> <p>5. Same. — Necessary Parties. — Where two parties were claiming the proceeds of an insurance policy, and in an action to determine the rightful owner, the insurance company filed an interpleader and paid the proceeds of the policy into court, but no order for the discharge of such company was made, a vacation appeal which fails to make such company a party must be dismissed, p. 522.</p>

<p>From Grant Circuit Court; II. J. Paulus, Judge.</p> <p>Action by Drew B. Pierce against the Indiana Natural Gas & Oil Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Myron G. Reynolds against Henrietta Wilkie and husband. Erom a decree for plaintiff, defendant Henrietta Wilkie appeals.</p>

Erom Perry Circuit Court; G. W. Cook, Judge. Action by Henry Rutherford, administrator of the estate of Katie Ling, deceased, against the Prudential Insurance Company of America. Erom a judgment for defendant, plaintiff appeals. Eor opinion on appellee’s motion to dismiss, see Rutherford v. Prudential Ins. Go., 32 Ind. App. 423.

<p>1. Appeal and Ebbob. — Bill of Exceptions. — Narrative Form.— Where a bill of exceptions was duly signed and filed, the fact that the evidence therein is set out in narrative form is no reason that such bill should be disregarded, p. 545.</p> <p>2. Same. — Bill of Exceptions. — Transcript.—Conflict as to Date of Trial. — Where the bill of exceptions shows that the evidence in the cause was introduced on January 29, 1902, and the transcript shows the trial was held on January 23, 24, 27, 28 and 29, 1902, the date of the bill controls, p. 545.</p> <p>3. Appeal and Error. — Bill of Exceptions. — Official Reporter. — It is not necessary that the bill of exceptions shall be transcribed by the official court reporter, p. 545.</p> <p>4. Same. — Bill of Exceptions. — Evidence Not All in Record.. — Where the bill of exceptions shows that a witness testified, “I did not notice any difference between that rick and others, in the mode of piling, etc.,” and the 'bill recites that “this was all the evidence given in the case,” such bill does not show that other evidence was introduced, as the bill shows that “etc.” was used by the witness, p. 540.'</p> <p>5. Same. — Bill of Exceptions.- — Objections to Approval by Judge.— What shall be contained in a bill of exceptions is a matter exclusively for the trial judge, and objections made by a party to his approval are unavailing, p. 540.</p> <p>6. Same. — Transcript.—Precipe.—Original Bill of Exceptions.- — ■ Where appellant by his precipe directs the clerk to make a transcript in a certain cause, it is the duty of the clerk to make a complete transcript, and under the act of 1903 (Acts 1903, p. 338, §7) the original bill of exceptions may properly be included therein, p. 540.</p> <p>7. Same. — Bill of Exceptions. — Instructions.—How Made Part of Record. — -Where instructions are incorporated into the bill of exceptions it is not necessary for the judge to sign marginal exceptions thereon, p. 546.</p> <p>8. Evidence.- — Impeachment of Witness. — Grounds.—Where, in the trial of a cause by a-servant against his master for personal injuries, objection was made to evidence tending to impeach a witness, on the grounds (1) that notice-to such witness would not be notice to the master; and (2) the evidence was incompetent, irrelevant and immaterial, and on appeal such evidence was assailed because it was an attempt to impeach a witness on a collateral and immaterial matter brought out on cross-examination, no question is presented, since the question on appeal was not passed upon by the trial court, p. 547.</p> <p>9. Same. — Dangerous Place. — Notice to Foreman. — Verbal Statements. —Where notice to the master of a dangerous place is material, in an action by the servant for personal injuries, evidence of the statements made by an employe to the foreman of such master on informing such foreman of such dangerous place is admissible. The notice being competent, the statement accompanying it is also competent, p. 548.</p> <p>10. Master and Servant.- — Assumed Risk. — Obvious Dangers. — The doctrine of assumed risk depends upon an implied contract created, in the case of an obvious danger, from the voluntary act of the servant in continuing in the'employment, p. 549.</p> <p>11. Same. — Assumption of Risk. — To charge a servant with an assumption of the risk of a danger it must be shown that such servant not only knew of the defect, but also appreciated the danger therefrom. p. 550.</p> <p>12. Same. — Assumed Risk. — Obvious Danger. — Evidence.—Where the evidence is conflicting the question whether the servant knew of defects not incidental to liis work, and appreciated the dangers arising from such defects, is one for the jury. p. 551.</p> <p>13. Master and Servant. — Assumption of Risk. — Knoioledge of Danger. — Where the servant merely knows that there is some danger, but does not fully appreciate what the danger really is, he does not assume the risk thereof, p. 553.</p> <p>14. Trial. — Instructions.—“Defect.”—“Danger.”—Where there is a question of asJtimed risk submitted to the jury, the distinction between “defect” and “danger” should be clearly made known by proper instructions, p. 553.</p> <p>15. Same. — Knowledge of Danger. — Evidence.—Where from the nature of the defect and dangers arising therefrom there can be but one inference as to the servant’s knowledge and appreciation thereof, the assumption of such risk is a question of law for the court, but where diverse inferences may be drawn from the facts, it is a question for-the jury. p. 553.</p> <p>16. Master and Servant. — Assumed Risles. — Dangers Out of Line of Duty. — Where a servant is at work where there are obvious dangers arising from defects out of 1ns line of employment^ he will nevertheless assume such risks by continuing in the service, p. 556.</p> <p>l^. Trial. — Negligence.—Dangerous Works and Ways. — Instructions. —Where it is charged that defendant was negligent in piling a rick of pig iron near the place where the servant was working, and that such iron fell on such servant, inflicting injuries, and the answers to interrogatories fail to show that there was no negligence therein, such answers do not absolve the master from the charge of negligence, and render harmless an instruction relative to assumed risk. p. 557.</p> <p>18. Trial.- — Interrogatories Outside of Issues. — Where an interrogatory asks for a fact which is outside of the issues in the case, the answer thereto can not be considered, p. 557.</p> <p>19. Same. — Interrogatories.—Conclusions.—Where the answer to an interrogatory was that “the work was carefully done,” such answer is a conclusion, and can not be considered, p. 558.</p> <p>20. Words and Phrases. — “Care” and “carefulness” are antonyms of “neglect” and “negligence,” and are conclusions, p. 558.</p> <p>21. Trial. — Interrogatories.—Conclusion.—An answer to an interrogatory that “the men piling the iron exercised ordinai’y and reasonable care” is a conclusion, and can not be considered, p. 558.</p> <p>22. Evidence. — Comparison of Alleged Negligent Act With Others Not Negligent. — Where it is alleged that the negligent act of defendant consisted in piling a rick of iron, evidence of piling other ricks is not admissible, p. 558.</p> <p>23. Trial. — Interrogatories.—An answer to an interrogatory that defendant “did not know the rick was dangerous” is not equivalent to a finding that defendant used reasonable care to provide a safe working place, p. 558.</p> <p>24. Evidence. — Opinion.—Where there is no charge of wilfulness, what the employes thought about the safety of a rick, alleged to have been negligently piled, is outside of the issues, p. 558.</p>

<p>1. Fraud. — Execution of Instrument Without Reading. — Relying Upon Representations of Opposite Party. — Where plaintiff and his wife executed an assignment- of a title bond to the defendants, one of whom wrote such assignment and included therein plaintiff’s personal property, such defendants being- the parents of plaintiff’s wife, who at the time lay fatally sick, and the plaintiff and his wife signed such assignment without reading it, upon the representation by defendants that it contained only the title bond, the question as to whether a fraud was practiced upon plaintiff was for the jury, p. 561.</p> <p>2. Judgment. — Dismissal of Complaint. — Cross-Complaint.—Property Not Included in Judgment. — Res Judicata. — Where plaintiff dismisses his cause before the court announces its decision, but the court renders judgment against plaintiff on a cross-complaint, but the judgment fails to include the personal property mentioned in such cross-complaint, there is no res judicata as to such personal property, p. 562.</p>

<p>1. Railroads. — Rights of Way. — Failure to Fence. — Right of Abutter to Fence. — Notice.—Where a railroad company’s fence of its right of way had been built more than one year, but such company had permitted such fence to become out of repair, the abutting landowner had the right to repair such fence upon giving the notice required by §5325 Burns 1901. p. 565.</p> <p>2. Same. — Rights of Way. — Fence.-—Repairing by Making New.— Where a railroad company fails to repair its fence as provided by statute, the abutting owner has the right to do so, upon notice, and if the old fence is decayed so as to be useless, such abutter may replace by an entirely new fence, p. 565.</p> <p>3. Trial. — Instructions.—Error.—Verdict Right on Evidence. — Where the court gives an erroneous instruction, but the verdict is clearly right under the evidence, such error is harmless, p. 566.</p>

<p>Erom Sullivan Circuit Court; Orion J3. Harris, Judge.</p> <p>Action by Otto Brocksmith against the Bostock-Ferari Amusement Company. From a judgment for plaintiff, defendant appeals.</p>

From Mariou Circuit Court (12,604) ; Henry O. Allen, Judge. Application by William H. Davis for license to sell intoxicating liquors at retail. Thomas Affleck and others file a remonstrance. From a judgment refusing such license, said applicant appeals.

<p>From Laporte'Circuit Court,; John O. Richter, Judge.</p> <p>Action by tbe "A. R. Beck Lumber Company and another against Charlotte Krotz and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>ErOrn Jasper Circuit Court; Gharles W. Hanley, Judge.</p> <p>Action by Joseph A. Engle against Elizabeth C. Johnson and others. Exom a judgment for defendants, plaintiff appeals.</p>

<p>il. Discovert.- — StatutoryExamination of Party. — Second Examination. — It is within the "power of a court to order a second examination of a party where it is shown that such party failed and refused to answer questions submitted in such first examination, p. 599.</p> <p>2. Contempt. — Refusal of Party to Answer Questions on Statutory Examination. — Whether a party who fails or refuses to answer questions on an examination under the statute is guilty of a contempt is a question largely in the discretion of the trial court, p. 599.</p> <p>3. Constitutional Law. — Defense.—Refusal to Permit. — Contempt. —Due Process of Law. — The denial of the right of defense because the defendant has committed contempt, constitutes the taking of his property without due process of law. p. 599.</p> <p>4. Costs. — Examination of Party. — Failure to Read. — Where a party takes a Statutory examination of the adverse party, and fails to read such examination on the trial of such cause, the cost thereof is taxable against the party taking same. p. 599.</p> <p>5. Contempt.- — Strildng Out Demurrer. — Where plaintiff moves to strike out defendant’s demurrer to the complaint on account of alleged contempt of defendant in failing to answer questions on a statutory examination of such defendant, such motion should be overruled, p. 600.</p> <p>6. Appeal and Error. — Supreme Court Rules. — Where appellant assigns as error the sustaining of defendant’s demurrer to plaintiff’s complaint, but fails to set out a copy of such demurrer in his brief, no question is presented, p. 600.</p> <p>7. Discovert. — Statutory Examination of Party. — Refusal to Testify. —Remedy.—Where a party fails or refuses to testify on examination under the statute, such fact, at the request of the other party, should be reported by the officer taking such examination, to the circuit or superior judge, who “shall order such party to appear and testify.” (See concurring opinion, Roby, J.) p. 600.</p>

<p>1. Pleading. — Complaint.—Negligence.—Factory Act. — A complaint which alleges that defendant “wholly failed, neglected and refused carefully and securely to incase or guard said ripsaw,” and negligently failed “to put a proper hood or covering over the top of said saw,” and failed to put a “spreader” immediately behind such saw, and by reason of such negligence plaintiff was injured, states a cause of action under the factory act. It is not necessary for the' complaint to refer to such act. p. 605.</p> <p>2. Same. — Complaint.-—Knowledge of Danger. — It is not necessary in a complaint for negligence under the factory act to allege that plaintiff had no knowledge of the unguarded condition of the machinery causing the injury, nor that plaintiff did not see and comprehend the danger, p. 606.</p> <p>3. Trial. — Instructions.—Giving Theory of Complaint in Four Paragraphs. — Where the complaint was in four paragraphs, the first, for negligence in failure to guard a ripsaw, the second, for improperly guarding a ripsaw, the third, for exposing the plaintiff, who was inexperienced, to dangers of an unguarded ripsaw, and the fourth, for failure to caution plaintiff as to the dangers, and for negligence of a fellow servant, known by the master to be incompetent, and the court in an instruction outlining the theory of the case to the jury said the “paragraphs were substantially the same,” and then detailed the different facts in all of the paragraphs, concluding by the statement “these are the substantial averments of the complaint, each paragraph stating them somewhat differently from the others,” such instruction is misleading and submitted the case upon an erroneous theory, p. 607.</p> <p>4. Trial. — Instructions Purporting to Cover Whole Complaint But Not Applicable to One Paragraph.- — Where an instruction purports to apply to the entire complaint consisting of four paragraphs, and the facts contained in such instruction were in no manner connected with one of such paragraphs, such instruction is misleading and erroneous, p. 611.</p> <p>5. Same. — Instructions.—Issues.—Evidence.—Where the plaintiff testified that he knew the unguarded ripsaw was unsafe and dangerous, it is improper for the court to instruct the jury that “if the plaintiff was ignorant of its unsafe condition” he would be entitled to recover, since instructions should be kept within the issues and the evidence. p. 611.</p> <p>6. Same. — Instructions.—Evidence.—Where the court instructed the jury that the paragraphs of the complaint were substantially the same, and then gave an instruction as to defendant’s liability upon hiring a laborer known to be incompetent, which fact was material only under one paragraph, and about which there was no evidence, such instruction was erroneous, p. 612.</p> <p>7. Same. — Merits of Cause. — Whether a cause has been tried upon its merits is a judicial question, and where the record shows error to the injury of the complaining party, such record shows' the cause has not been tried upon its merits, p. 613.</p>

<p>Erom Eloyd Circuit Court; James K. Marsh, Special Judge.</p> <p>Action by Joseph Stier against the City of New Albany. From a judgment rendered upon a verdict for $1,200, the defendant appeals.</p>

Original action by the State of Indiana, on the relation of George Grau, against Joseph W. Adair, as judge of the Whitley Circuit Court, for a writ of mandate compelling such defendant to settle and sign a bill of exceptions in a cause tried by defendant.

<p>1. Raileoads. — Obstructing Dram. — Injm-y to Upper Proprietor. — ■ Liability. — Where a railroad, company makes a fill across a public drain and for the purpose of carrying off the water flowing through such drain, puts in the bottom of such drain an iron pipe insufficient to carry off such water, and thereby causes such water to back upon the lands' of an upper proprietor, such company is liable to such proprietor for such damages, p. 631.</p> <p>2. Appeal and Error. — Bill of Exceptions — Evidence.—Failure to Include All.- — Where the bill of exceptions shows that a plat was introduced in evidence, but no plat is contained in the bill, the evidence is not in the record, p. G32.</p> <p>■3. SAkE. — Brief.-—Points.—Appellate Oowt Rules. — Where appellant’s brief does not contain any points and authorities on certain questions raised, as required by Appellate Court rule 22, such questions will not be considered, p. 632.</p>

From Boone Circuit Court; Samuel B. Arlman, Judge. Action by the Bankers Surety Company against Jonathan J. Moore as administrator of the estate of Willis E. Moore, deceased, to be released from defendant’s official b&nd. From a judgment relieving plaintiff and removing defendant from said trust, defendant appeals.

<p>1. Negligence.- — Proximate Cause. — Concurrent Causes. — Where defendant’s fault, together with some other event which is not the fault of plaintiif, concur to produce the plaintiff’s injuries, the defendant is liable, p. 640.</p> <p>2. Same. — Anticipating the Injury. — It is not necessary that the defendant should have anticipated the precise injury which occurred. It is enough that plaintiff was injured by such negligence when in the exercise of his legal rights, p. 640.</p> <p>3. Tkial. — Interrogatories.—Where, in an action against a railroad company for injuries caused by the fall of plaintiff’s horse upon a narrow road, and the precipitation of plaintiff over an unguarded embankment at a highway crossing, the answers to the interrogatories , showed that neither the want of a proper guard-rail nor the narrowness of the road caused such horse to “choke, stumble or reel,” such answers were not in irreconcilable conflict with a general verdict for plaintiff, p. 641.</p> <p>4. Negligence. — Proximate Cause. — Question for Jury. — What is the proximate cause of an injury is usually a question for the jury, p. 641.</p> <p>5. Rallboads. — Highway Crossings. — FmhanJcments.—Failure to Provide Cfuard-Rails. — Where a railroad company constructs its road across a public highway and causes a fill in such highway, and the width of such highway at the top is but twelve feet, and the railroad company fails and neglects to place any guards along the sides of such road, such company is liable to a person driving over such crossing fox-injuries caused by the stximbling and falling of his horse and such person’s precipitation over such embankment caused thereby, since proper guards would have prevented such fall. p. 641.</p>

<p>1. Pasties. — Plaintiffs.—Nuisance.—Injunction.—Where ■ there are several plaintiffs in an action the complaint must show a cause of action in favor of each; that each has a common grievance; that the injuries complained of were committed at the same time-by the same act, and that each is interested in the same relief or some part of it. p. 647.</p> <p>2. Same. — Plaintiffs.—Hushand and Wife. — Where a wife owned real estate, and her husband owned and operated a stone-quarry on such real estate, they may both join in an action to restrain a defendant from erecting and maintaining a nuisance which injures both of them individually, p. 649.</p> <p>3. Injunction. — Affirmative Wrongful Acts. — Demand.—A previous demand to desist is not necessary in an action to restrain defendant from the commission of affirmative wrongful acts amounting to a nuisance and causing irreparable injury to plaintiffs, p. 649.</p> <p>4. Pleading. — Complaint. — Injunction. — Injury. — Where the complaint shows that defendant has obstructed a watercourse by depositing sand in its' channel and by erecting dams, and that defendant is continuing such deposits, thereby causing the channel to be filled up several feet, when taken in connection with the allegations of injury, is sufficient as against the objection that the complaint does not show irreparable injury on account of such discharge of sand into such stream, p. 650.</p> <p>5. Pleading. — Complaint.—Theory.—Briefs.—The court on appeal may examine the briefs of counsel to aid in determining the theory of the complaint, p. 651.</p> <p>6. Injunction. — Violation of Rights. — Adequate Remedy at Law.— Trespass. — Delay.—A complaint for injunction must show a violation of plaintiff’s rights; that there is no adequate remedy at law; that the acts1 complained of constitute more than a temporary trespass ; that no unreasonable delay has occurred; that it is not to prevent a past injury and that it is not a “doubtful” case. p. 651.</p> <p>7. Same.- — Flowing Lands. — Complaint.—Where an injunction is sought to prevent defendant from flowing plaintiffs’ lands, the complaint should set out the nature of the land, in order that the court can determine the character of the injury, p. 653.</p> <p>8. Waters and Watercourses. — Building Levees Along Banlcs. — The owner of lands along a watercourse may build a levee along the bank of such stream, provided it does not interfere with the free flow of water in the full width of the channel, p. 653.</p> <p>9. Pleading. — Conclusions. — Probative facts and not conclusions should be alleged, p. 654.</p> <p>10. Waters and Watercourses. — Obstructions.—Injunction.—The owners of glass-works have no right to discharge sand into a watercourse to the serious injury of others, p. 654.</p> <p>11. Injunction.- — Injuries.—To sustain an action for injunction the injury apprehended must be substantial and serious, and for which courts of law could furnish no adequate remedy, p. 654.</p> <p>12. Trial. — Special Findings. — Injunction.—Where the special findings fail to show facts sufficient for injunctive relief as to one of the' plaintiffs, a decree granting an injunction is erroneous, p. 656.</p> <p>13. Injunction.- — Temporary Interest. — Special Findings. — Where the special findings showed that one plaintiff was the owner of the business of quarrying stone and that another owned the real estate, and such finding failed to show anything in reference to the terms of the plaintiff’s interest in such quarry, such findings do not support a decree for injunction, p. 657.</p>

From Laporte Circuit Court; John G. Richter, Judge. Action by Anton Dobyzkoski, by his next friend, against Hattie Woodard, as administratrix of the estate of Tullar J. Woodard, deceased. From a judgment for plaintiff, defendant appeals.

<p>From Hancock Circuit Court; E. W. Felt, Judge.</p> <p>Action by City Bond Company against Mary L. Bruner and husband. From a decree for defendants, plaintiff appeals.</p>

<p>Erom Superior Court of Marion County (62,654); James M. Leathers, Judge.</p> <p>- Action by Margaret Bruce against David A. Myers and others. Erom a judgment for defendants, plaintiff appeals.</p>

From Knox Circuit Court; O. E. Cobb, Judge. Action by the City of Vincennes against William A. Cullop as administrator de bonis ñon of the estate of Charles Graeter, deceased. From a judgment for plaintiff, defendant appeals.

<p>1. Abatement. — Liens. — Street Assessments. — Appeal to Circuit Court. — -Where one or more landowners appeal from a street assessment made by a city council, the whole assessment is superseded, and on appeal, the landowners who did not join in such appeal may plead in abatement of an action to foreclose such street assessment lien, that such appeal has not been determined, p. 675.</p>

From Montgomery Circuit Court; Jere West, Judge. Action by Lizzie R. Swisher and husband against Schuyler C. Kennedy, as administrator, of the estate of Volney Q. Irwin, deceased. From a judgment for plaintiffs, defendant-appeals.

Erom Lagrange Circuit Court; Joseph D. Ferrall, Judge. Action-by Melvin U. Demarest, as'treasurer of tbe school city of -Elkhart, against William II. Holdeman and others. Erom the'decree rendered, plaintiff and others appeal.'

From Monroe Circuit Court; W. H. Capron, Special Judge. Charles L. Jones applied foi^ a license to sell intoxicating liquors. From a decree granting the license, remonstrators appeal.

<p>From Grant Superior Court; Hiram Brownlee, Judge.</p> <p>Action by William M. Ward and wife against the Crown Oil Company and others. From a decree for plaintiffs, defendants appeal.</p>

<p>From Parke Circuit Court; Howard Maxwell, Special Judge.</p> <p>Action by the First National Bank of Wabash against the Wabash Yalley Coal Company. From a judgment for plaintiff, defendant appeals.</p>