Volume 4 — Indiana Appellate Court Reports

<p>Justice of Peace.— Void Judgment. — Failure of Justice to Sign. — Breach of Official Duty. — A purported judgment rendered by a justice of the peace is void where he fails to sign his name to such judgment. His failure to do so constitutes a breach of official duty.</p> <p>Same.— Void Judgment of Suretyship. — Bight of Action by Surety on Official Bond. — Complaint.—Insufficiency of. — A complaint was filed before a justice of the peace on a promissory note. The complaint averred that the defendant S. was principal on said note, and that the defendant L. Was surety thereon, but there was nothing contained in the complaint by which it appeared on the face of the note that L. was surety. A default was taken against S., and without any complaint of suretyship or paper of any kind being filed, and without summons or notice to S. to answer the complaint, but in S.’s absence, and without his knowledge, the justice proceeded to try the question of suretyship, and found that S. was the maker of said note and L. surety thereon. Judgment was rendered accordingly, but the justice failed to sign the judgment. L. paid it and instituted suit against the justice and his sureties on the official bond. He averred the foregoing facts in his complaint, and in addition thereto alleged that the levy upon S.’s property was released by order of the plaintiff because of the want of a judgment to support the execution ; that at the time and for more than fifteen days after the rendition of said j'udgment S. owned sufficient property in the bailiwick of the constable out of which tlie judgment could have been made; that the plaintiff remained ignorant that the judgment was void until a long time after S. had absconded from the State, taking bis property with him or disposing of it; and that thereupon the plaintiff paid said judgment in full.</p> <p>Held, that such payment did not furnish L. a good cause of action on the justice’s official bond, for the reason that the judgment of the justice on the question of suretyship was without validity, and even if the justice had signed the judgment his attempted adjudication of the question of suretyship would have been without force or effect.</p> <p>Held, also, that if L. desired a.judgment of suretyship in his favor against S. it was his duty to have adopted the procedure required by sections 1212 and 1213, B. S. 1881, and having failed to do so, he can not be heard to say that he was damaged by a failure of the justice to render up and sign a void judgment of suretyship in his favor against S.</p>

<p>From the Marion Circuit Court.</p>

<p>Evidence. — Competency of Admissions.— Compromise. — A party can not render an admission incompetent by testifying that he intended it to bring about a compromise, unless, in fact, there was an honest controversy between the parties, and an agreement pending or proposed to settle it without litigation.</p> <p>InStbuctions TO Jury. — Bowi Brought Into the Record. — Filing.—Bill of Exceptions. — Instructions can not be brought into the record without a bill of exceptions, unless it affirmatively appears that they were filed,, and to be filed the attention of the court should be called to the filing and the filing minuted on the docket, and be made to appear as a part of the court proceedings in the order book.</p>

<p>Partnership.— Who May be Regarded as Partners. — Name of Partnership.— Where persons associate themselves with each other, and carry on business together under a common name, but the association is not a corporation, the persons composing it may be regarded as partners. The business of a partnership may be carried on under any name which the partners adopt, though it be one in form appropriate for a corporation</p> <p>Same. — Complaint.—Averments not Conflicting. — Where a complaint contained the direct averment that the defendants were partners, doing business under a firm name and style mentioned, the further averment that they held themselves out and permitted themselves to be held out as partners, was not inconsistent with the prior averment, and did not render the pleading insufficient.</p> <p>Parties. — Non-Joinder of. — Demurrer.—A demurrer for non-joinder of necessary parties defendant will not lie, unless the complaint on its face shows the defect of parties.</p> <p>Same. — Answer in Abatement. — Omitted Parties Subject to Process. — Answer Must Aver. — An answer in abatement for non-joinder of persons alleged to be jointly liable with the defendants, which does not show that such persons were subject to the process of the court, is insufficient.</p> <p>Same.— Objection as to Defect of. — How Must be Taken.— Waiver of. — If the objection that there is a defect of parties defendant be not taken either by demurrer or answer in abatement, “ the defendant shall be deemed to have waived” such objection. Section 343, E. S. 1881.</p> <p>Appeal.— When Question not to be Considered. — A question not assigned as a reason for a new trial can not be considered on appeal.</p>

<p>From the Pulaski Circuit Court.</p>

<p>Appeal. — When Governed, by Decedents’ Estates Statute. — The sections of the statute concerning decedents’ estates relating to appeals are applicable only to appeals from decisions rendered in proceedings provided for in that statute, and have no relation to cases prosecuted independently of that statute.</p>

<p>Vendor and Purchaser. — ^Representations by Purchaser. — Bight to Bely on. —Fiduciary Belation — As a rule a seller has no right to rely upon a purchaser’s representations respecting the Value of the property in negotiation. The buyer has the same right to disparage its value in order to obtain a good bargain as the seller has to enhance its value for the same purpose. But this rule does not apply to those standing in a fiduciary relation, when one is led to rely upon the judgment and integrity of another, induced by his integrity or better means of information. Such confidence can not be abused by one in whom it is imposed, though inspired by no act of his, provided he knows of it and suffers it to exist.</p>

<p>From the Boone Circuit Court.</p>

<p>Railroad. — Killing Stock. — Complaint.—Motion to Make More Specific. — In a complaint against a railroad, company for damages for killing a horse which had wandered upon the track, the complaint, among other things, stated that the horse entered upon the track immediately north of the city of La Payette. A motion to make the complaint more specific as to the point where the horse entered upon the track was correctly overruled.</p> <p>Same. — Duty to Fence Against Animals. — Private Crossing. — The act of April 8, 1885 (Acts of 1885, p. 148), does not apply in cases where land separated by a right of way of a railroad company is not owned by the same person.</p> <p>Same. — Liability for Stock Killed. — Duty to Make and Keep Fence in Repair.— The acts of 1885 do not repeal the law rendering railroad companies liable for stock killed or injured by their locomotives and cars, where they do not securely fence in their railroads and properly maintain the fences.</p> <p>Same. — Private Crossing. — Fheeption to Liability — Railroad companies are bound to maintain fences at private crossings, as to animals entering them, except that duty is not owing to one who has undertaken to maintain the fence, nor to one for whose benefit the private crossing is maintained.</p>

<p>Contract. — Action upon Instrument.— Agreeing to Become Surety. — Complaint. — Parties.—In an action upon the following writing : “ Mr. C. C. Smith: Sir — If it is agreeable with you, let Joshua Hill have one wagon on time, and I will go on note with him as surety. Yours, etc., S. P. Webster,” — the complaint alleging the delivery of the wagon to Hill solely on the credit of Webster, and the execution of anote by H., and the refusal of W. to sign the same as surety, and the insolvency of H., — it was proper to describe the note in the complaint, but it was not necessary to set out a copy of the same, as it was not the foundation of the action.. It was not necessary to make H. a party to the action, as W. could not be entitled to have H. sued with him without becoming a joint maker of the note with him.</p> <p>Same. — Promise of Suretyship. — Notice of Acceptance. — Formal Demand. — If W. was not bound to take notice that his promise had been accepted, he became bound immediately upon the receipt of the notice, as alleged in the complaint, to sign the note as surety, and he was so bound continuously thereafter. It was not necessary to aver in the complaint that a formal demand had been made by the plaintiff.</p> <p>Same. — Promise of Suretyship. — Scope of.— What does not Pelease Promisor.— The fact that the note of H. showed that the sale of the wagon to him was a conditional sale, the ownership to remain in the plaintiff until payment, would not release W. from his promise. He did not, as he might have done, prescribe the form of the note, and must be regarded as having left the making of it and its form to H. and the plaintiff, and as having relied on H. for information concerning the same. Having made the terms of his promise general, he must be regarded as consenting to whatever they covered upon a reasonable construction. The conditional sale was within the scope of his agreement.</p> <p>Same. — Proceeding Against. — Party Agreeing to Become Surely. — Other Pemedies Need not be Exhausted. — The failure of the plaintiff to take possession of the wagon would not bar his action against the defendant. He was not obliged to exhaust any other security before proceeding against him.</p>

<p>Erom the Bartholomew Circuit Court.</p>

<p>Railroad. — Action for Wages Against. — Recovery of Attorney’s Fees and Statutoi'y Penally. — Elliott’s Supp., Sections 1596-1598 Construed. — The act of March 3d, 1885 (Elliott’s Supp., sections 1596-1598), which provides ' that every company, corporation or organization in the absence of any written contract to the contrary shall be required to make full settlement with and full payment in money to its employees engaged in manual or mechanical labor done for the company at least once in every calendar month, and failing to do so shall be liable to a penalty of one dollar for each succeeding day, with reasonable attorney’s fees in-case of suit, etc., applies to a suit brought against a railroad company for work and labor.</p> <p>Same. — Decision of Court on Foi'mer Appeal. — Continues to be Law of Case.— Void Judgment of Garnishment. — -Where, on a former appeal, the Supreme Court held that, according to the statutes of Missouri, which were introduced in evidence to support the answer of the railroad company, the judgment of garnishment rendered in a justice’s court in St. Louis was void, and constituted no defence to the cause of action set out in the complaint, such declaration continues to be the law of the case on a subsequent appeal to the Appellate Court.</p>

<p>From the Jennings Circuit Court.</p>

<p>Pleading. — Answer in Abatement. — Non-Resident of County. — Insufficiency of. —Can not be Aided by Affidavit in Attachment. — Where an action was instituted to recover attorney’s fees, and with the complaint an affidavit and undertaking in attachment were filed, the ground for the same being the alleged non-residence of U., one of the defendants, an answer in abatement by the remaining defendants was demurrable which set forth that they were not residents of the county in which the cause of action was instituted, and that the cause of action, if any, was in another county; in which they resided, but which did not allege that U. (neither did the complaint) was not a resident of the county in which the action was brought. The affidavit in attachment can not be looked to in considering the sufficiency of the answer in abatement.</p> <p>Same. — Pleas in Abatement. — How Construed. — Pleas in abatement must allege every fact necessary to their sufficiency. No presumptions of law or fact are allowed in their favor. Every intendment must he taken against them.</p> <p>Jurisdiction. — Service Upon Non-Resident. — Attachment Against Property of. — Jurisdiction Over Other Defendants. — A non-resident of the State, or person having no permanent residence in the State, may be sued and process served upon him in any county in the State where he may be found ; but a proceeding in attachment against his property will not of itself confer jurisdiction in the same action over persons as defendants who have their usual place of residence in another county. See , section 312, E. S. 1881.</p> <p>Attorney and Client. — Action for Attorney’s Fees. — Employment by Unauthorized Attorney. — Where plaintiff’s claim was for legal services alleged to have been rendered for U., and such services were rendered at the request of C., who was not employed or recognized by U. as his attorney, there can not be a recovery. An attorney must first have employment himself before het.ean, by the procurement of assistant counsel, bind or pledge the credit of another for the payment of assistant counsel.</p>

<p>From the Harrison Circuit Court.</p>

<p>Insurance. — Mutual Fire Insurance Company. — Appointment of Receiver for. —Losses Occurring Thereafter. — Liability to Members Without Notice.— Where an application was made for the appointment of a receiver for a mutual fire insurance company of this State, and there was an appearance by the company to such application, and a confession of insolvency, and good cause existed for the appointment of a receiver, and it was adjudged insolvent, its property sequestrated by tbe court, and an order entered appointing a receiver, every member of the company is bound by such order without further notice, and all liability over future losses then ceases. A member of the company under such circumstances can not recover on a policy for a loss occurring after the appointment of a receiver. The plaintiff, having given a premium note in consideration of his policy, belonged to that class of policyholders who were members of the insurance company under our statute. Sections 3751-2, R. S. 1881.</p> <p>Same. — Reason for Appointment of Receiver.— When Decree Need not Disclose. —Averment of Insolvency in Complaint. — Admission of in Answer. — Where the complaint averred the insolvency of the company, and the answer admitted it, it was not necessary that the decree should disclose the court’s reason for the appointment of the receiver.</p>

<p>BailroAD. — Action for Injuries by Fire. — Complaint.—Averments as to Negligence. — Motion to Malee More ¡Specific. — Where an action was brought against a railroad company for injuries caused by fire, and the complaint alleged that the defendant negligently permitted combustible material to accumulate on its right of way, that in operating its locomotives the rubbish was ignited, and that defendant negligently permitted the fire to escape without any fault of plaintiff and to enter on plaintiff’s land, where it injured and killed a large number of trees, a motion requiring the plaintiff to state more specifically the acts of negligence and the number of trees injured and destroyed, etc., was properly overruled.</p> <p>Interrogatories. — Motion to Require Fuller Answers.— When Correctly Overruled. — A motion to require interrogatories to be answered more fully should be overruled when it appears that they have been sufficiently answered to the extent to which they tend to elicit material facts.</p> <p>Jury.— View of Premises. — Discretionary with Court. — -Evidence.—The power to require the jury to view premises for the purpose of making a more intelligent application of the evidence is discretionary with the court. Section 538, B. S. 1881.</p> <p>Special Verdict.— When not Error to Refuse. — Where the appellant had requested the court to instruct the jury in writing, and after the evidence had all been heard, and the court had intimated to counsel the character of the instructions, it was not error to refuse to grant a special verdict.</p> <p>Practice.— Argument to Jury.— Misconduct of Counsel.— When Available Error. — Misconduct of counsel in argument to jury to constitute available error must be objected to at the time, and the intervention of the court invoked and the ruling of the court, if adverse, must he duly excepted to.</p> <p>Instructions to Jury. — Refusal to Give, When not Error. — When an instruction to a jury is refused, but the same points are fully covered by other instructions, there is no. available error.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Railroad. — Killing of Stock. — Evidence.—Cattle Tracks near where Stock was Killed. — Propf of Admissible. — In an action against a'railroad company for the killing of cattle which it was alleged entered upon the railroad and were killed at a point where it was not securely fenced, and the defendant sought to show that the animals were killed at a highway crossing, plaintiff had the right to prove that there were cattle tracks along the railroad near the point where he claimed his cattle were killed, without proof that the tracks were made by the cattle actually killed.</p> <p>Same. — Evidence.—Opinion of Witness. — Direction in which Cattle were Thrown. —In such an action, it was not error to permit the plaintiff to prove by a witness his opinion as to which direction the animals were thrown by force of the collision, as bearing upon the direction the train was running which collided with them, although the witness did not see the animals upon the track, but testified to indications and appearances along the track shortly after the injury, an opportunity being afforded to cross-examine the witness, and obtain the basis of his knowledge upon the question. The appearances in the judgment of the trial court could not be described to the jury with sufficient vividness to enable them to form as accurate conclusions thereon as the witness could, and under such circumstances opinions are admissible.</p> <p>Same. — Acts April 8th and 18th, 1885, Construed. — Stock Kitering upon Track TJnfenced through Unenclosed Lands. — Liability for Killing of. — The acts of April 8th and 13th, 1885 (Acts 1885, Sess. Laws, pp. 148 and 224), do not absolve railroad corporations from liability under the police laws for killing stock which enter upon the track where it is unfenced, through unenclosed lands. These acts provide for farm crossings, and for fencing railroads for the benefit of the adjoining proprietor whose land is enclosed, and the liability for injury to stock remains the same as it was prior to the passage of such acts, except as to such as enter upon the track at farm crossings.</p> <p>Witnesses. — Absence of.— When not Ground for Continuance. — The law provides for taking the depositions of witnesses who live without the reach of a subpoena, and a party who relies upon his ability to obtain the presence of witnesses under such circumstances, and does not avail himself of the provisions for procuring their testimony according to the law, is not entitled to a continuance as a matter of right if he fails to secure the attendance of such witnesses. The court may, in its discretion in such a case, grant a continuance, but that discretion is not ordinarily subject to review.</p> <p>Evidence. — Objection that it is Immaterial. — No Question Presented on Appeal. —An objection to the introduction of evidence that it is immaterial, is too general and indefinite to raise any question for review on appeal. One objecting to the introduction of evidence must state specifically the ground of objection in order to avail himself of exceptions to an adverse ruling upon appeal.</p>

<p>From the Boone Circuit Court.</p>

<p>Will. — Election Under. — Estoppel.—A assigned a certain amount of bank stock to B, his wife, and conveyed to her, in fee simple, a certain amount of land. Afterwards he made a will devising said bank stock and land to B for her use during her life and at her death said property was vested absolutely in C. Upon the death of A, B elected to take under the will. After so electing, B sold said bank stock. B died and C filed a claim against B’s estate for the amount of the stock so conveyed.</p> <p>Eeld, that when B elected to take under the will, she was thereby estopped to deny A’s right to dispose of said bank stock, though the title was in her, and that in electing to take under the will she gave effect to all its provisions and undertook to perforin all the burdens attached to her benefit.</p> <p>Held, also, that C had a right to treat the title to the stock as vested by the sale and sue for its conversion.</p> <p>Same. — Doctrine of Election.— What it Implies. — The doctrine of election is of equitable origin, and there can be no election unless the testator confers some benefit, and, by the terms of the will, assumes to dispose of some right of the party electing.</p> <p>Verdict. — Court Directing upon Evidence.— When Proper. — Where the evidence clearly establishes the right of the plaintiff to recover, without contradiction, and no defense is proven against such right, it is proper for the court to direct a verdict for the plaintiff, but not otherwise.</p>

<p>Common Carrier. — Loss of Baggage. — Limitation of Liability as to Amount of Loss. — Effect of on Bight of Recovery. — The defendant railroad company, in consideration of a sum paid to it by the plaintiff, undertook to safely carry the plaintiff and her baggage from Portland, Oregon, to Indianapolis, Indiana, by way of its own road and connecting lines. The ticket contained the following words : “ None of the companies represented in this ticket will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding $100.” Following this was the signature of the general passenger agent, and immediately after that the following: “ I agree to the above contract Mrs. Osceola Nicholai.” When the trunk reached its destination it was discovered that a sealskin sacque, jewelry, etc., of the value of three hundred dollars had been abstracted era route.</p> <p>Held, that where the exemption provided for by contract is not for loss or damage from a particular cause, but as to amount only (as in the case at bar), and the carrier will not account, nor attempt to account for a re. fusal to deliver the property which it undertook to safely carry, the presumption is that there has been negligence on the part of the carrier, and the plaintiff may recover the full amount of the loss she has sustained.</p> <p>Instructions to Jury. — Erroneous Instructions.— When Judgment not Reversed on Account of. — An instruction to the jury in such a case that gave them to understand that it was of little importance whether the plaintiff omitted to read the contract to which she had signed her name, provided the railroad company had not called her attention specially to its terms, was erroneous, as it was her duty to re.ad the contract, if she had the opportunity of doing so, and no fraud, imposition or deception was practiced to prevent her from doing so; but as the verdict of the jury was right upon the evidence, the judgment should not be reversed for the giving of an erroneous instruction.</p>

<p>Principal and Agent. —Purchase of Stolen Property from Agent. — Previous Dealings with. — Devocation of Agency. — Notice.—Liability of Purchaser.- — ■ Where the plaintiff had constituted J. as his agent, and had sent him to the defendant’s mill on two occasions in charge of his teams loaded with wheat, and authorized him to do business for him, and the defendant to trust him, to deal with him, and to pay him the proceeds for the wheat, which he accordingly did, and the plaintiff received the money so paid without protest; and without any notice of the revocation of the agency the defendant received wheat on another occasion from J. which he had stolen from the plaintiff, and paid him for it the plaintiff can not recover of the defendant the value of said wheat. In delivering the third load of'wheat, the defendant had the right to believe that the agent had been acting within the scope of his authority, as recognized and represented by the plaintiff to the defendant.</p> <p>Same. — Third Parties Dealing with Agent. — Devoaation of Agency. — Notice.— Third parties dealing bona fide with one who has been accredited to them as an agent are not affected by the revocation of his agency, unless notified of such revocation.</p>

<p>Erom the Greene Circuit Court.</p>

<p>Bastardy. — Personal Judgment. — Constructive Notice. — A personal judgment in a bastardy case upon a constructive, notice is void. A judgment of filiation in such a case is designed to furnish the basis of a judgment for personal recovery, and it has no other office or function. It does not affect the condition or status of the parties in any other manner. The judgment being personal, it can not be upheld as fixing the liability of a defendant, unless the court had jurisdiction of his person. The warrant takes the place of the' summons in ordinary civil actions.</p>

<p>Taxation.— Wrongful Be-Assessment by Auditor. — Taxes Voluntarily Paid.— Becovery of. — While section 6416, R. S. 1881, provides for the assessment of omitted property by the county auditor, it does not provide for a re-assessment by him of property assessed and returned by the assessor.</p> <p>. Such a re assessment is wrongful within the meaning of section 5813, R. S. 1881, and taxes voluntarily paid on account of the same may be recovered.</p> <p>Same. — Tax Schedule.— Valuation by Party. — Adoption of by Assessor. — The valuation entered in the column headed “Valuation by Party” on a tax schedule, is to be regarded as having been adopted by the assessor, except so far as a different valuation is entered in the column headed “Valuation by Assessor.”</p>

<p>Negligence. — Obstruction of Race-Track. — Injury to Horse Being Speeded.— Liability of Owner of Track. — Complaint.—Sufficiency of. — A complaint stated a good cause of action which alleged that the defendant was the owner and proprietor of a track, and had advertised and solicited the public to exhibit and speed horses thereon, representing that said track was suitable and safe in all respects therefor; that the defendant prepared an exhibition to take place on said track for a specified premium, and solicited and accepted from the plaintiff a sum of money, as a fee for the privilege of entering said contest for said premium; that while the plaintiff was exercising his,horse on said track, at the special call of the defendant, preparatory to said exhibition of speed, the defendant negligently suffered and permitted the track to he obstructed, by allowing the spectators to rush upon and stand and walk upon said track, and the plaintiff’s horse in consequence thereof collided with another ho-rse rightfully upon the track, whereby the plaintiff’s horse and sulky were wholly destroyed, without any fault or negligence on his par-t, to his damage, etc. The grounds and track were undCT^thesunerwgjgn, of the defendant, and the particular occasion was one for which it had made preparation for profit to itself. It, therefore, assumed the obligation of omitting no attention which was reasonably necessary to the proper use and enjoyment of its track by the plaintiff under the circumstances.</p> <p>Evidence. — Reversal of Judgment. — There must be an entire failure of evidence on some material point before a judgment will be reversed because of the evidence alone.</p>

<p>Township. — Bridges.—Neglect to Repair. — Liability for Negligence of its Officers. — Townships are political corporations created to perform certain governmental functions, and are not liable for the negligent acts of their officers unless expressly made so by statute; and when officers of a township expend funds in constructing or repairing bridges which belong to the county, they perform services for the county, and not for the township, and the latter can not be made answerable for their misconduct.</p> <p>Same. — Primary Duty to Repair Bridges in County. — Duty of Township to Contribute, Conditional. — The duty to contribute seventy-five dollars towards the construction or repair of bridges under certain conditions is a mere special assessment upon the township for local benefits, and carries with it only such liabilities as the law expressly imposes. The duty to keep bridges in repair is primarily in the county, and it can only enforce contribution from the township under certain conditions.</p>

<p>Cbiminal Law. — Indictment.— Venue. — Caption.—Where the record showed that an indictment was returned by “ the grand jury of Morgan county, Indiana, into open court,” and in the indictment the grand jury was styled “ the grand jury of the county of Morgan,” it sufficiently appears that the “ Morgan county ” there named is the identical “ Morgan county ” named in the caption of the indictment, and which is there shown to be a county in the State of Indiana. The caption or margin of an indictment may be looked to to determine the question whether an indictment was found by the grand jury of the county in which the court was held.</p> <p>Same. — Sale of Intoxicating Liquor. — Indictment.-—-Averment as to Selling Without License. — In an indictment charging the defendant with selling “ one quart of intoxicating liquor, to wit, beer, to be then and there drunk, and suffered to be drunk, in the house,” etc., of the said “Thomas Howell, where the said liquor was sold,” it was sufficient to aver that the defendant did not have a license under the State law to sell intoxicating liquor, and it was not necessary to aver that the defendant did not have a license to sell liquors to be drunk in the places named in the charging part of the indictment. The indictment followed substantially the .words of the statute. This is ordinarily sufficient where the statute defines the offence which it creates.</p> <p>Same. — Competency of Jurors. — Formation and Expression of Opinion. — Ability to Yield to Evidence. — On a trial for selling intoxicating liquor to be drunk on the premises, two of the jurors who served upon the trial were challenged for cause, but were held by the trial court to be competent. They both served the day before upon a jury in a criminal cause, in which the appellant was the defendant, which involved, to some extent, the question as to how the appellant used, and permitted to be used, his house, the lot in the rear of it, and the appurtenances belonging to the house in the matter of the sale and drinking of liquors, They said, on their voir dire, that they had formed and expressed an opinion as the result of that trial as to how said premises were shown to have been kept, but that the opinion so formed would yield to evidence, and that they could try the case at bar fairly and impartially, and that it would not require any more evidence favorable to the appellant to enable them to render a verdict in his favor in the present case than if they had not heard the evidence in the former case. It was not shown that they had talked with the witnesses or ever heard them testify as to the subject-matter involved, or that they had any prejudice against the appellant, or the business in which he was engaged. Held, that under section 1793, R. S. 1881, the court did not abuse its discretion in allowing said jurors to serve.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Judgment. — Res Adjudicata. — Personal Property. — Sale of by Judgment Debtor. Repurchase of. — Execution Lien. — Exemption.—Where, after the sale of personal property by a judgment debtor, who claimed it as exempt from execution, it was decided in an action between the purchaser and the sheriff, who had levied upon the property in the purchaser’s possession, that the same was subject to the levy, and no appeal was taken from said judgment, and the judgment debtor thereafter repurchased the property, he took it subject to said lien, and is concluded by said judgment from setting up a claim to exemption.</p> <p>Appeal. — Decision of Supreme Gourt. —Law of Case on Subsequent Appeal.— The decision of the Supreme Court in a cause continues to be the law of the case on a subsequent appeal to the Appellate Court.</p>

<p>From the Henry Circuit Court.</p>

<p>Pbactice. — Misconduct of Counsel in Argument. — Question.—How Saved. — In order to save the question of alleged misconduct on the part of counsel in making an argument to the jury, an objection should have been made, and a ruling insisted upon that the remarks were improper, and that they should be withdrawn by counsel and disregarded by the jury, and, failing to obtain a favorable ruling, an exception should have been taken to the action of the court. After this still other remedies were available. The complaining party could have moved to set aside the submission and discharge the jury, or he could have asked the court to give a special instruction upon the subject of the counsel’s objectionable remarks.</p> <p>Same. — Evidence.—Admission of. — Appeal.—Absence of Available Error.— Where there was no objection to the admission of evidence when it was first offered, and no exception to any ruling of the court thereon, and after the testimony had been given the appellant moved to strike it out, but failed to point out to the court any specific objection thereto, there is no available error.</p>

<p>From the Clark Circuit Court.</p>

<p>Vebdict.— Weight of Evidence. — A verdict will not be disturbed on the mere weight of evidence when there is evidence tending to sustain it. For discussion of evidence sustaining verdict in favor of plaintiff against the defendant railroad company, for injuring plaintiff’s colt resulting in its death, see opinion.</p>

<p>From the Marion Superior Court.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Howard Circuit Court.</p>

<p>County. — Prisoner in Jail. — Physician for. — Section 5764, B. S. 1881. — Partial Bepeal of by Section 4993, B. S. 1881. — Section 5764, R. S. 1881, which provides that it is the duty of the board of county commissioners to contract with one or more skilful physicians having knowledge of surgery to attend upon all prisoners confined in jail, or paupers in the county asylum, and that they may also contract with physicians to attend upon the poor generally in the county, and no claim of a physician or surgeon for such services shall be allowed by said board; except in pursuance of the terms of such contract, is repealed by section 4993, R. S. 1881, which went in force September 19th, 1881, in so far as it relates to the employment of physicians to attend upon all prisoners confined in jail. By the last named section an ex officio board of health is constituted, whose secretary shall be a physician, and it is made the duty of such secretary to “ render such medical aid and surgical science as may be required by persons confined in the county jail,” and such other medical services as the county commissioners may require.</p> <p>Same. — Employment of Physician by Jailer. — Liability of County. — Where a prisoner confined in the county jail became suddenly seized with a virulent and dangerous illness, and was in such a dangerous condition that delay for an hour would have been fatal and his life lost, and the secretary of the board of health lived at such a distance that his services could not be procured in less than four hours, the jailer, under section 4993, R. S. 1881, was authorized to employ a physician to attend the prisoner, and the county is liable for the expense so incurred.</p>

<p>From the Bartholomew Circuit Court.</p>

<p>Railkoad. — Injure^Employee.—Employment of Physician by Conductor. — Liability of Company. — Where there was an accident on the defendant company’s road, and an imperious necessity for the preservation of life, and to prevent great bodily suffering the conductor of the train which ran off the track — the highest agent of the company on the ground— employed a physician with the concurrence of the local surgeon of the company to attend to one of the injured persons, an employee of the company, and it was agreed by the said physician and the local surgeon that an amputation was necessary, which operation was performed by said physician, the local surgeon being unable by reason of the extraordinary service devolved upon him by the injury of so many persons to give the immediate aid and attention to said employee required by the emergency and necessity growing out of the aeeident, the railroad company was bound by the employment of said physician, and liable for the payment of his professional services in performing said operation. The company would not be liable, however, for any ser- . vices“rendered by said physician after the emergency had ceased.</p>

<p>Attachment. — Lien of. — Following Proceeds of Property Attached. — Priority to Subsequent Execution.— Proceedings Supplementary.— Sale of Attached Property by Agreement of Parties. — Where a writ of attachment was levied upon a number of hogs, and by agreement between the debtor and the attaching creditor, the hogs were sold by a third party, to whom the sheriff entrusted them for that purpose, and the money realized from the sale was paid to the clerk of the court, the lien of the writ was transferred from the hogs to the money, and the fund could not be subjected by proceedings supplementary to execution (the issuance of the execution being subsequent to the delivery of the writ of attachment to the sheriff) to the payment of another judgment against the debtor. The hogs were still in custodia legis when the sheriff permitted the third party to sell them. He was the mere servant or agent of the officer. Property may be sold by agreement of the parties to the record without pursuing all the steps named in the statute.</p> <p>Proceedings Supplementary to Execution.— Pleadings.— Motion to Strike Out. — Demurrer.—Although in proceedings supplementary to execution no pleadings are required after the order requiring parties to appear, and answer has been made, a judgment will not be reversed because of the refusal of the court to sustain a motion to strike out answers and a cross-complaint filed by an attaching creditor who was made a party to the proceeding, or because of its refusal to sustain a demurrer to the same.</p> <p>Practice. — Exclusion of Testimony. — How Question Saved. — To save a question on the ruling of the trial court in excluding the testimony of a witness, a proper question should be asked, and, upon objection, the court should be informed of the answer expected, and, if the objection be then sustained, an exception should be reserved at the time of the rulings.</p>

<p>Divorce. — Dismissal of Action. — Attorneys’ Fees. — Supervisory Power of Court. —In a divorce proceeding, where plaintiff’s attorneys performed services in the case upon the understanding that they should be paid out of allowances which should be made by the court, and the plaintiff during vacation filed her written dismissal of the cause, and said attorneys moved to set aside such dismissal, setting forth that they had not been paid for services rendered in the case, and asking an order against the defendant for the value of such services, and the court overruled a demurrer to the attorneys’ motion, and made an order directing the defendant to pay said attorneys’ fees, the action of the court was within his supervisory power, and was not error.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Animals. — Running at Large. — Escaping from Enclosure. — Act of March 7th, 1887, Constnted. — Animals escaping from an enclosure in which they have been placed for the purpose of confining them, and which the owner, when he learns of their escape, endeavors to recover, can not be regarded as animals “ running at large,” within the meaning of the act of March 7th, 1887 (Acts of 1887, p. 38).</p>

<p>From the Noble Circuit Court.</p>

<p>Iítsubance. — Policy on Animal. —Complaint.—Ownership at Time of Death.— Absence of Averment Concerning. — In an action to recover on a policy of insurance for the death of a horse, a complaint was defective which failed to show that the plaintiff was the owner of the horse or had any interest in it at the time of its death.</p> <p>Pjractice. — Insufficient Complaint. — Answer. — Demurrer. — When the complaint is insufficient, it is error to sustain a demurrer to an answer filed thereto.</p>

<p>From the Blackford Circuit Court.</p>

<p>Breach oe Promise. — Immoral Consideration. — Insufficiency of Complaint.— In an action for the breach of a contract of marriage the complaint failed to state a good cause of action which averred that the plaintiff, an unmarried woman, was solicited by the defendant to have sexual intercourse with him, which she refused to do; that thereafter defendant agreed with and promised her that if she would have sexual intercourse with him and become pregnant from such intercourse he would at once marry her; that in consideration of such promise and agreement so to marry in case of pregnancy, to which promise and agreement she assented, plaintiff yielded to defendant’s solicitation and had sexual intercourse with him, from which pregnancy resulted and from which a child was born to the plaintiff; and that immediately upon the discovery of such pregnancy plaintiff, who was then willing to marry'defendant, requested him to fulfil his said promise of marriage, which he refused to do, and still refuses to do, to her damage, etc. The contract pleaded was based upon an immoral consideration, and will not sustain an action for its breach. If there was an implied promise on the part of the plaintiff to marry it was so united with the immoral part of the consideration and so dependent upon the consequences of the immoral conduct proposed that it can not be separated and made to serve as a valid consideration. Kurtz v. Frank, 76 Ind. 594, and Wilson v. Ensworth, 85 Ind. 399, distinguished.</p>

<p>From the Rush Circuit Court.</p>

<p>Municipai, Cobpobation. — Action for Damages Against. — Defective Sidewalk. — Liability of Abutting Property-Owner. — Duty to Keep in Safe Condition. — Remote Grantor. — The defendants owned a lot with a business building thereon, abutting upon one of the public streets of a town. There was an area in the sidewalk in front of said building, partly covered by a flagstone and partly open, for the purpose of light and of gaining access to the basement. The open portion was guarded by an iron railing. The stone was placed on a secure foundation, but partly on account of decay and partly on account of an unusually severe rainstorm, the foundation gave way and one side of the stone was thrown forward so as to render the sidewalk dangerous. The stone was removed from its dangerous position with the knowledge and consent of the municipality, and the area thereby left uncovered and unguarded for a period of three weeks. During that interval a pedestrian fell into the excavation caused by the removal of the stone, and was injured, and recovered a judgment against the municipality.</p> <p>Held, that, in an action against the abutting property-owners by the city, they can not escape liability by showing that the particular part of the area which caused the injury was of no benefit to and was not used by them, as the area must be considered as an entirety.</p> <p>Held, also, that although the area was excavated by a prior owner and a remote grantor of the defendants by and with the consent of the town, the defendants were liable for a failure to keep it in a safe condition, if they maintained and used it. It is presumptively a beneficial appurtenance to the realty.</p> <p>Held, also, that if the injury was caused by the giving way of the foundation walls which supported the flagstone, those walls were made necessary by the area, and it was the duty of the defendant to maintain them in a safe condition.</p> <p>Same. — Excavation Made With Consent of. — Duty of Abutting Property-Owner Concerning. — Where an excavation is made in a sidewalk with the consent of the municipality, the abutting property-owner is bound to exercise ordinary care and diligence to maintain it in a safe condition.</p> <p>Pbactice. — Pleading.—Sustaining Demurrer.— Harmless Error.— How Can not be Converted into Harmful Error. — Where a demurrer was sustained to a paragraph of answer, and all the facts contained in said paragraph were admissible under the general denial on file, it was not reversible error, even if the ruling was erroneous, and the defendants can not make it such by withdrawing their general denial.</p> <p>Same. — In determining the effect of the ruling of the court, regard must be had to the condition of the record at the time it was made, and if it was then correct, or harmless if wrong, it can not afterwards be changed by the act of the party against whom it was made, and be rendered available upon appeal.</p>

<p>Pbactice. — Complaint.—Motion to Make more Specific. — How made Part of Record. — A motion to require the plaintiff to make his complaint more specific can only become part of the record by hill of exceptions or order of court, and when it has been merely copied in the transcript, but does not constitute a part of the record by virtue of section 650, R. S. 1881, it can not be made a part of a bill of exceptions or be brought into the record by reference to it as having been theretofore set out in the record.</p> <p>Pleading. — Action for Negligence. — Complaint.—Averments as to Negligent Act or Omission. — The complaint in an action for negligence must show that the plaintiff’s injury was caused or occasioned by the negligence alleged. It is not enough to charge the defendant with a negligent act or omission ; it must also be shown with reasonable certainty that such act or omission was the direct or proximate cause of the injury, or the complaint will be bad on demurrer. The particulars of the negligence, however, or the circumstances which made it negligent, need not be set out.</p>

<p>Fom the Hamilton Circuit Court.</p>

<p>From the Morgan Circuit Court.</p>

<p>Township Trustee. — Purchase of School Supplies.— Written Acknowledgment of Indebtedness. — Authority to Issue. — Six Years’ Statute of Limitation.— Where a township trustee purchased school supplies and issued a written acknowledgment of the indebtedness of the township therefor, and in an action on such certificate of indebtedness it is alleged in the complaint that the furniture sold was suitable and necessary for the schools of the township, and that it was delivered to and received and accepted by tbe corporation, and had ever since been used by the schools, and was of the value agreed upon and stated in the certificate of indebtedness, such action of the trustee was clearly within the scope of his authority, and such action on the written instrument of indebtedness was not within the six years’ statute of limitation.</p> <p>Same. — School Supplies. — Purchase in Violation of Sections 6006 and 6007, P. S, 1881. — Matter of Defence. — Anticipating Objections. — If the certificate of indebtedness in question had been made in violation of sections 6006 and 6007, B. S. 1881, which were then in force, such matter was a defence which it was incumbent upon the defendant to jilead. It is not necessary in a complaint to anticipate possible objections in a complaint which do not appear.</p>

<p>From the Steuben Circuit Court.</p>

<p>RaiI/BOAB. — Killing of Animals. — Fencing of Track. — Burden of Proof When Company Denies Obligation to Fence. — Fmdence.—In an action against a railroad company to recover damages for the killing of animals which entered upon the track at a pointwliere it was not fenced, the burden of proof is upon the defendant who seeks to defeat a recovery upon the ground that the company was not bound to maintain a fence at that point, as it would have endangered the lives of its employees engaged in switching, and a verdict in favor of the plaintiff will not be disturbed where it does not clearly appear from the evidence that the maintenance of a fence and cattle guards at the point where the cattle entered upon the track would have endangered the safety of the employees of the company.</p> <p>Same. — Pleading.—Belief From Obligation to Fence. — General Denial. — Proof of conditions which would release a railroad company from the duty of fencing its track at a particular point may he given under the general denial.</p>

<p>Poob Peeson. — Township Trustee.' — Duly of to Furnish Relief. — The nature and. extent of the relief to be granted a poor person by a township trustee is largely in the discretion of the trustee, but the fact that a poor person is already being cared for furnishes no excuse for not making arrangements for future relief that he regards necessary.</p> <p>Same. — Aid Voluntarily Furnished by Brother of.— Compensation for. — Presumption as to.' — -Where a person of moderate competency voluntarily takes care of and gives relief to his afflicted pauper -brother, there is a strong presumption that such services are to be rendered gratuitously, but the facts are not conclusive evidence of such intention. It should be left to the jury to determine whether services so rendered were-gratuitous or whether the county is to be looked to for compensation, and positive proof of a contract with the township trustee that the pauper was to be cared for at the county’s expense, such contract being in his power to make, is conclusive evidence overcoming the presumption arising from kinship.</p> <p>Same. — Found in one County and Brought into Another. — Duty to Assist.— The mere fact that a pauper is found in one county is no reason why, after he has been transported into another county in good faith, he should not be given assistance as a transient pauper.</p> <p>Husband and Wife. — Evidence.—Earnings of Wife. — Proof of Wife’s Services. — Husband Entitled to. — The common law rule that the earnings of the wife belong to the husband is still in force in this State, except where she carries on a separate business or works for others on her own account, and in a suit by the husband for services rendered his afflicted pauper brother, whom he kept in his family, testimony as to the services of the wife and the value thereof was properly admitted.</p> <p>Continuance. — Application for. — Sickness of Attorney —Where application for a continuance is made on account of the sickness of an attorney employed in the ease, but such application does not disclose how long said attorney has been sick, and whether other counsel might not have been employed to take charge of the case, the application will not be sufficient to warrant a continuance.</p> <p>, Same. — Private Arrangements Between Attorneys as to Notice of Trial. — Not Binding on Court. — The court can not be bound by the private arrangements of counsel among themselves as to sending each other notice of the time of trial, and any breach of such arrangements will not work a continuance.</p>

<p>From the Boone Circuit Court.</p>

<p>From the Allen Superior Court.</p>

<p>From tlie Shelby Circuit Court.</p>

<p>From the Madison Circuit Court.</p>

<p>Common Caebieb. — Destruction of Goods in Transit by Fire. — Contract Limiting Carrier’s Liability. — Action Must be Upon. — Negligence.—Burden of Proof. — Where an owner of goods when he delivered the same to a common carrier for shipment received and accepted a hill of lading therefor which contained a stipulation against the carrier’s liability for loss by fire, and the goods were so destroyed, an action against the carrier for their loss must be instituted on the contract and not on the common law liability. The burden of proof in such an action would be on the owner to establish negligence.</p> <p>Same. — Bight to Limit Liability. — Special Contract. — Negligence.—A common carrier may, by special contract, limit his common law liability as an insurer for damages not occasioned by his own negligence. Fire which does not occur through the carrier’s fault is a casualty against which he may exonerate himself from responsibility by contract with the shipper. As to whether or not the carrier was guilty of negligence is a fact for the jury. Negligence can not be inferred from the mere fact, that the fire occurred while the goods were in the carrier’s possession and in transit when there is a contract exempting the carrier from liability as an insurer.</p>

<p>Decedents’ Estates. — Claim in Several Paragraphs. — Insufficient Paragraph.— General Verdict for Plaintiff. —Where a claim was filed against an estate, the statement of the claim being in four counts, and a demurrer to the first was overruled and a general verdict was returned for the plaintiff, and it did not appear that the verdict was based upon the first count, which was insufficient; the judgment must be reversed.</p> <p>Same. — Claim Against — .Parol Contract for Conveyance of Land. — Statute of Frauds. — In an action against a decedent’s estate a complaint is bad which seeks to recover judgment against the estate for the value of a piece of land, basing the right of recovery upon a parol contract, which, it was alleged, was entered into between the plaintiff and the decedent, by which the latter agreed to give the plaintiff forty acres of land of a specified value if the plaintiff would return to the home of the decedent, and live with, take care of and wait on the decedent during her lifetime, said contract being within the provision of the statute of frauds which requires all contracts for the sale of land to he in writing.</p>

<p>Beplevin. — Title and Bight of Possession. — General Finding. — Motion for Venire de Novo. — In an action of replevin where both the title and the right of possession are in issue, a general finding or verdict for the plaintiff is a sufficient finding of the facts. The fact that the finding does not embrace all the issues joined by the parties furnishes no ground for a motion for a venire de novo.</p> <p>Same. — Assessment of Damages.— Value of Property.— When Unnecessary to Find. —Harmless Error. — Where, in an action of replevin, the property was already in the possession of the plaintiff at the time of the finding and judgment in her favor, it was not necessary that the finding of the court should assess the plaintiff’s damages or establish the value of the property. If the omission, however, was an error, it was in favor of the defendants and they can not complain.</p> <p>Same. — Attaching Creditors.— Unnecessary Parties.— When can not Complain that Complaint is Defective. — When attaching creditors who were unnecessary parties to an action of replevin were made parties defendant to the action instituted against a sheriff on his motion, and appeared in court and answered the complaint by a general denial, and also by an answer or cross-complaint, in which they set up their interest at length, they can not be heard to say that the complaint was defective as to them, and that they were improperly joined as defendants. Had these parties been brought into the case upon the plaintiff’s motion and without any other or further averment in the complaint as to them than the following — “ the plaintiff avers that the other defendants claim some right and title in and to the property described herein, and asks that they be required to answer their complaint, as their claims are unknown to the plaintiff” — the complaint would have been radically defective as to them. But when such parties are invited into court upon motion of defendant and by the order of court, a different rule obtains.</p> <p>Same. — Judgment for Costs. — It was proper to render a jndgmentfor costs against the attaching creditors alone upon the issue tendered by their cross-complaint contesting the title to the property. The sheriff was only their representative, and he was not liable for the payment of any share of the costs.</p> <p>Costs. — Judgment for. — Motion to Correct or Modify. — Motion in Arrest of Judgment. — When parties are not satisfied with the judgment for costs against them in the shape in which it was rendered, their remedy is to file a motion to correct or modify the judgment. A motion in. arrest of judgment does not challenge the form.</p> <p>Pleading. — Complaint.—Defect of Parties.— Waiver of Objection.— When a complaint might have been defective for a failure to set out the names of new parties who were brought into the ease by the order of the court, an objection on that ground was waived by the said parties appearing and answering the complaint.</p> <p>Arbest op Judgment. — Joint Motion. — Effect of. — A joint motion in arrest of judgment by all the defendants can not be sustained as to a part only.</p> <p>Same.— When Motion can be Pesorted to. — Defect in Pleadings. — A motion in arrest of judgment can only be resorted to for a defect in the pleadings not cured by the verdict or finding or the statute of amendments or waived by failure to demur.</p>

<p>From the Marion Superior Court.</p>

<p>From the Marshall Circuit Court.</p>

<p>From the Carroll Circuit Court.</p>

<p>Arrest or Judgment. — Action Originating Before Justice. — Complaint.— Killing of Animals. — Absence of Averment as to Contributory Negligence.— Railroad. — In a common law action commenced before a justice of the peace against a railroad company for negligence in killing the plaintiff’s mule, the complaint will be held defective when attacked by a motion in arrest of judgment, when it contains no averment that the killing complained of was without the contributory fault or negligence of the plaintiff. While the same strictness of pleading is not required in cases originating before a justice of the peace as in those commenced in the circuit court, still, where there is a failure in an action instituted before a jqstice to plead some independent fact essential to a recovery,, the omission is fatal, even on a motion in arrest of judgment.</p>

<p>Evidence. — Demurrer to.— What it Concedes. — In an action against a railroad company for delivering property to a person other than the consignee, a demurrer to the evidence should have been overruled when the evidence tended to show that the plaintiff was the owner of the property set out in the complaint and specified in the bill of lading and delivered to the defendant; that the property was, without any authority from the plaintiff, turned over by the defendant to one who was not the designated consignee and converted by him to his own use, and that-he was insolvent; and that the property was of a certain value. A demurrer to evidence concedes the truth of all the facts which the evidence demurred to tends to prove and all such inferences as can reasonably be drawn therefrom, and if there is evidence favorable to the party demurring, the court can not consider it when it is in conflict with that against him.</p> <p>Same. — Demurrer to. — Defects in Pleadings. — Defects in pleadings can not be taken advantage of to support the ruling on a demurrer to the evidence.</p>

<p>Taxes. — Re-assessment of Property by Auditor. — Omitted Properly. — Additional Taxes Paid. — Right to Recover. — Section 6416, R. S. 1881, as Amended in 1889, Construed. — -Where a county auditor, assuming to act under section 6416, R. S. 1881, as amended in 1889, which authorized him to assess property which had been “ omitted, in whole or in part, in the assessment of any year, or number of years, from the tax duplicate,” assessed taxes od the amounts of difference between the amounts of money loaned out on mortgage by the plaintiff for several years, as reported by him to the assessor and adopted by that officer, and the actual amounts so'loaned out by the plaintiff during said years, and the plaintiff paid the taxes on said additional assessments, he may recover the amount so paid, under sections 5813, 5814, R. S. 1881. Such assessments made by the auditor were simply increases in the valuation of property listed by the owner for taxation over the valuation made by the assessor, and were not assessments of omitted property under the statute, and were, therefore, wrongful and without authority.</p>

<p>From the Howard Circuit Court.</p>

<p>Infant. — Married Woman as Next Friend for. — Liability for Qosts. — Under the recent statutes of this State, enlarging the civil rights of married women, a married woman may act in the capacity of next friend for a minor. The liability of a next friend for costs is imposed by statutej and is a direct primary liability, not in the nature of a suretyship, and a judgment may be rendered against a married woman upon such liability.</p> <p>Same.— Written Consent of Next Friend. — Filing of. — While section 256, R. S. 1881, seems to imperatively require the filing of the written consent of the next friend to act in such capacity before process shall issue, the provision is merely directory, and process may issue and the cause proceed without such consent, until it is required by the defendant.</p> <p>Same. — Insolvency of Next Friend. — Femoval of. — Discretionary With Court.— It is discretionary with the court to remove a next friend on the ground of financial irresponsibility, and error can not be successfully predicated on the court’s refusal to make a removal for that cause.</p> <p>Contract. — Illegal Consideration. — Compromiise of Criminal Prosecution.— Where the compromise and settlement of a criminal prosecution en-« . tered into the consideration for which a sum of money was deposited with a third party to be paid to the plaintiff, the consideration was tainted with illegality to such an extent as to render the agreement void and prevent a recovery of the money on the part of the plaintiff.</p>

<p>From the Clark Circuit Court.</p>

<p>From the Porter Circuit Court.</p>

<p>.Criminal Law. — Intoxicating Liquor. — Sale to Minor.— What Constitutes.— Inviting Another to Drink. — Where a minor invites another to drink with him, and the order is made and each calls for what he wants, the sale is to him who made the invitation, and the instant the liquor called for was set on the bar the title to it vested in the purchaser, and the fact that the liquor ordered for the minor’s companion was a gift to him does not defeat the sale to the minor, for the minor was able to revoke the gift and drink the liquor himself.</p> <p>Same — Intoxicating Liquor. — Prohibiting Sale to Minor'. — Purpose of the Statute. — The statute prohibiting the sale of intoxicating liquors to those of nonage is for the purpose of protecting them from the temptation to imbibe intoxicants and makes it unlawful to put liquor in their possession or control, either by sale, barter or gift, except for sacramental, mechanical, medicinal and business purposes.</p>

<p>From the Parke Circuit Court.</p>

<p>Railkoad. — Failure of Passenger to Procure Ticket. — Extra Charges for Such Failure.— When Legal. — A railroad company may discriminate in its rates of fare in favor of those passengers who purchase tickets before entering the cars, but to justify such discrimination proper facilities should be afforded by the railroad company for the procurement of a ticket before the passenger goes upon the train, and if such facilities are not afforded the passenger he will be entitled to be carried at the ticket-rate, or he may pay under protest the excess demanded, and after-wards recover it back, but he is not obliged to do so.</p> <p>Same. — Entering Car as a Passenger.— When Rightfully there. — When a Trespasser. — Where a person enters a railroad car as a passenger, either with or without a ticket, he is rightfully there, but the instant he refuses to pay his full fare and comply with the reasonable regulations of the company he becomes a trespasser.</p> <p>Same. — Taking Passage without a Ticket. — Tendering Regular Fare. — Acceptance by Conductor. — Contract to Carry for Same — Where a person entered a railroad car without having first purchased a ticket, and having announced his destination, he tendered the regular ticket-fare, which the conductor accepted, and after passing on "a few seats he returned and demanded the extra fare imposed by the rules of the company against passengers taking passage without ticket, the fact that the conductor accepted the regular fare and passed on a short distance did not amount to a contract to carry the passenger to his place of destination for that amount, and the passenger, in refusing to pay it, the railroad company haying provided reasonable facilities for procuring a ticket, became a trespasser, and could rightfully be expelled from the car.</p>

<p>From the Martin Circuit Court.</p>

<p>From the Boone Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>Injunction. — Restraining Order. — Continuance of by Agreement of Parties in Open Court. — Effect of on Injunction Bond. — In an injunction proceeding, where a restraining order was granted and continued in force to a certain date, at which time the defendant in the injunction proceedings appeared in open court with the plaintiff in said suit and entered into an agreement with him that said injunction and restraining order should be continued until the further order of the court, and that the court should make and enter an order carrying into effect said agreement, which was accordingly done by the court, such an agreement by the parties to the action amounted to no more than a waiver of a formal hearing, and the injunction was continued in force by the order so entered, and the bond already given was continued in force by the statute, and the defendant, notwithstanding said agreement, was still protected by the injunction bond.</p>

<p>From the Huntington Circuit Court:</p>

<p>Notice. — Motion to Set Aside. — Raises no Question as to Sufficiency of Complaint. — Affidavit the Foundation of Notice. — A motion to set aside notice, whether constructive or actual, will raise no question respecting the sufficiency of the complaint; for the affidavit is the foundation for notice by publication, and, if that be sufficient, the notice will be upheld.</p> <p>Real Estate. — Sale of Under Execution. — Failure to Offer Rents and Profits. —Irregularity of Sale. — Relief From. — A sale of land upon execution under our statutes, where the judgment does not waive appraisement, is irregular, unless the rents and proceeds of the land for a term of seven years be appraised and offered for sale before the fee simple is sold, and such sale will be set aside in an action brought for that purpose and judgment-plaintiff purchasers are entitled to the same relief as others, and have the same right to rely on the regularity of the proceedings of the officer as strangers to the proceedings.</p>

<p>From the Porter Circuit Court.</p>

<p>Evidence. — Receipt.—Prima Facie Evidence. — Subject to Explanation, etc. — A receipt is only prima facie evidence of what it contains. It will not • work an estoppel, and may be explained, controlled, qualified, or even contradicted by parol evidence.</p> <p>Same. — Performance.—-Prevention of.— Proof of Strict Compliance. — Excuse from. — If a parly to a contract, who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispense with, or by any act of his own prevents, the performance, the opposite party is excused from proving a strict compliance with the condition.</p> <p>Instbuctions to Juey.— When Should be Refused. — Performance of Contract. —Proof of Necessary When. — In an action to recover for extra work performed at the request of the defendant, the defendant requested the court to give an instruction to the jury based upon the assumed position that the plaintiff was required to show, before he could recover that the defendant’s engineer had certified under the contract that the contract had been completely performed.</p> <p>Held, that, as the action was for work performed outside of the contract it could not be governed by the contract, and that the instruction was correctly refused. That the evidence supports the verdict, see opinion.</p>

<p>Bill op Exceptions. — Apparent Omission of Evidence. — Supreme Court. — Although a bill of exceptions .concludes with the usual formula, “ this was all the evidence given in the case,” yet if, on the face of the bill, there is an apparent omission of evidence, the Supreme Court will not consider or decide any question which depends, for its proper decision, upon the evidence in the cause.</p>

<p>From the Morgan Circuit Court.</p>

<p>Railroad. — Maintenance of Sighway Grossing. — Where a railroad company crosses a street or highway with its track, the company must maintain the street or highway in a reasonably safe condition for the use of the public.</p> <p>Witnesses. — Physician as an Expert. — Injury to Person. — It is competent to ask a medical witness his opinion as to the probable cause of an injury to a person, or its probable results.</p> <p>Pbactice. — Improper Question Resulting in no Injury to Person Complaining.— An improper question, as one calling for a conclusion, which does not mislead the jury, is not such an error as renders a new trial necessary.</p> <p>Same. — Condition of Railroad Crossing at Time of Injury and Trial. — Question why no Change was Made, Improper. — Where the suit is to recover damages for an injury occasioned by a defective railroad crossing, it is competent to prove that the condition of the crossing is the same at the time of the trial as at the time of the injury, but it is not competent to prove why no change was made in its condition.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Prom the Madison Circuit Court.</p>

<p>Assignment of Error.— When Must be Filed. — Amendment, When Allowed. — Where an assignment of error is not based upon a question reserved in the court below, leave to amend the assignment will not be granted, unless due diligence was used in the first instance to make the assignment complete, and in criminal actions, as well as civil, assignments of error must be filed within a year from the date of the judgment below, and an amendment which would amount in effect to a new assignment can not be made beyond such time.</p>

<p>From the Morgan Circuit Court.</p>

<p>Cbiminai. Law. — Malicious Trespass, Indictment. — In a prosecution for malicious trespass, it is only necessary to describe the nature and character of the injury with reasonable certainty.</p> <p>Same. — Larceny.—Malicious Trespass. — A person guilty of larceny of a certain article can not be convicted of a malicious trespass on the same article by proof of the acts constituting the theft.</p>

<p>Negligence. — Intervening Agency. — Remoteness of Consequences. — In the case of a tortious act,if some other power or force, beyond the control of the original actor, may be justly said to constitute the more direct cause, and the result following the primary eause was extraordinary, unusual or unnatural, and the consequences for which damages are claimed are not such as might have been reasonably anticipated, thefirst cause is too remote to be taken as the proximate or efficient one.</p> <p>Same. — Throwing Carcass of Dog Near Highway. --Frightening Horse of Traveller. — The owner of a dead dog, who places it in a proper place, and which is, without his knowledge or consent, taken by another and placed near a highway, so that it frightens the horse of a traveller, to its and his injury, is not liable in damages to the person injured.</p>

<p>Services. — Member of Family Can Not Recover For. — One who becomes a. member of another’s family and lives with him as such member, can not, without a special contract, recover for his services rendered as a member thereof.</p> <p>Same. — Quantum Valebat.— Accepting Services, Implied Promise to Pay.— Where one is employed in the service of another the law implies a promise to pay, and where a person accepts and retains the beneficial results of another’s services, the law implies a previous request, and a promise to pay for them.</p>

<p>Appeal. — Brief.—Sufficiency of.— What Must Contain. — A brief which does not contain both the questions for decision and an argument or statement of the infirmity of the rulings relied upon for a reversal, is not sufficient to fulfil the requirements of the law.</p>

<p>From the Hancock Circuit Court.</p>

<p>Appeal. — Sufficiency of Evidence to Sustain Verdict. — A judgment will not be disturbed on appeal where the assignment of error íb that the verdict was not sustained by the evidence, if there is any evidence tending to support the verdict. For sufficiency of evidence, see opinion.</p> <p>Instructions to Jury. — Harmless Error.— Hot Ground for Reversal.— Where the court instructed the jury in substance that they might consider the position of the account as shown in the book and the manner of placing it as they saw it in the book, and that they had a right to take the book with them and consider it, there was no error, except it be in the clause, “ You may take the book with you and consider it; ” and the record not showing that they did take the book with them, the instruction could have worked no harm, if wrong.</p> <p>Evidence. — Ledger Kept Solely by Defendant. — Properly Rejected. — Where the defendant offered to introduce in evidence two ledgers containing the plaintiff’s bank accounts, which books were kept by the officers of the bank and with which the plaintiff had nothing whatever todo, such evidence was properly excluded.</p>

<p>Evidence. — Sufficiency of to Sustain Verdict. — Where the testimony is conflicting this court can not disturb the result reached in the trial court because of alleged insufficiency of evidence.</p> <p>Same. — Rejection of. — Steps Necessary to Save Exception to. — Where a question as to the rejection of evidence is sought to be preserved in the record, a pertinent question should be propounded to the witness, and, upon objection, a statement should be made as to what the witness will testify thereto.</p>

<p>From the Steuben Circuit Court.</p>

<p>Bill of Exceptions. — Filing.—A bill of exceptions is no part of the record unless it is filed in the court below; and a certificate of the clerk “ that the above and foregoing transcript contains true and complete copies of all the papers and entries in said cause,” does not show that a bill of exceptions inserted in the transcript has been filed.</p>

<p>Repievin. — Condition of Bond. — The condition in a replevin bond given by a plaintiff to prosecute the action to effect, and without delay, means a continuous prosecution to a final judgment in favor of the plaintiff, and the plaintiff must diligently pursue the case and succeed or he will be liable on such bond.</p> <p>Same. — Dismissal, Breach of Bond. — A dismissal of a replevin suit is a breach of the bond given to the plaintiff, and renders him liable to the defendant.</p> <p>Same. — Bond, Independent Conditions. — The three usual conditions incorporated in a bond given by a plaintiff in an action of replevin are separate and independent, and a breach of any one of them entitles the defendant to maintain an action thereon.</p> <p>Same. — Dismissal, Judgment of JReturn of Property. — On the entry of a judgment of dismissal by the plaintiff, who has possession of the property replevined under his bond, the court has no power to award a judgment of return.</p>

<p>Municipal Coepoeations. — Actions for Violations of Ordinances. — An action to recover a penalty for the violation of a municipal ordinance is a civil action, and is controlled by the rules of the civil practice.</p> <p>Appeal. — Less than §50 in Controversy.— Validity of Municipal Ordinance.— In an action by a city, commenced before its mayor, to recover a penalty for the violation of its ordinance, where the defendant appeals from a judgment of less than fifty dollars, and does not controvert the validity of such ordinance, the Appellate (or Supreme) Court has no jurisdiction of the case, and will dismiss the appeal.</p> <p>Same. — Jurisdiction Conferred by Consent. — Power of Court to Pass on Bight of Appeal. — Parties to an appeal can not by consent confer jurisdiction on the court to which the appeal is taken ; but, notwithstanding the lack of jurisdiction, such court has the power to decide the right of appeal, and announce authoritative adjudications with reference thereto.</p>

<p>From the Johnson Circuit Court.</p>

<p>Special Verdict. — Province of the Jury in. — When Plaintiff Entitled to Judgment. — Conclusions of Law. — It is the province of the jury in rendering a special verdict to find the facts only, leaving judgment thereon to the court; and all conclusions of law, if any, stated in such special verdict must be eliminated in considering the ruling of the court. Unless the special verdict states all the facts essential to a recovery by the plaintiff, the defendant will be entitled to a judgment thereon.</p> <p>Same. — For the insufficiency of the facts, as shown by the special verdict, to entitle the plaintiff to recover, see opinion.</p> <p>Gravel Boad.— Width of.— Uniformity of Width. — Company Operating Under General Law. — A turnpike company operating under the general law relating to such corporations need not construct or maintain its road of a greater width than eight and one-half feet, and the road need not be of uniform width throughout its course.</p>

<p>Practice. — Demurrer.—Overruling.— When not Reversible Error. — If any of several paragraphs, to which a demurrer is addressed separately, is good, the overruling of the demurrer is reversible error unless it appears affirmatively that the finding is based npon some one or more of the good paragraphs, if any there be.</p> <p>Pleading. — Answer.—Sufficiency of. — A paragraph of answer which shows that the contract sued on is speculative and illegal, and that the plaintiff is not an innocent holder for value, is sufficient to withstand a demurrer.</p> <p>Estoppel. — Answer of.— When Sufficient. — An answer of estoppel in pais, where both parties have knowledge of the facts, can not prevail unless the answer shows a binding contract.</p> <p>Pbomissoby Note. — Partial Failure of Oonsideration. — Rlegal Consideration. —Only Actual and Legal Consideration can be Recovered. — -In an action on a promissory note for $200, the consideration of the note being twenty bushels of oats of the value of about $10, all other pretended consideration being illegal and void, the court correctly drew its conclusions of law that the defendant was not liable on the note, except for the value of the oats received by him.</p>

<p>From the Kosciusko Circuit Court.</p>

<p>Master and Servant. — Discretion of Action in Employee. — Misjudgment of Employee. — Liability of Master. — "Where a master employs one in a vocation requiring him to act under certain conditions, and commits to his discretion the duty of determining when and what action may be necessary, the employer will be responsible for the misjudgment, as well as the misconduct of the servant, and if he acts when there is no occasion for it at all, though intending to accomplish some end of the employment, such responsibility will still exist.</p> <p>Same. — Liability of Master for Acts of Servant. — Rule as to. — The master will he responsible for the acts of the servant when they are performed in the general scope of his employment and with a view of accomplishing some end thereof, but the master will not be held liable for the acts of a servant who uses his position for a cloak to protect him in the execution of a purely private purpose, unconnected with the service of the employer.</p> <p>■Same. — Exercise of Care in Employment of Servant. — Lack of. — Responsibility of Master. — Acts Beyond Authority. — A complaint based upon the theory that the master is bound to exercise reasonable care in the selection of his servant, and, having failed to do so, the master would he responsible for the wrongs of the servant, whether they occurred in the line of his employment or not, is bad, and the overruling of a demurrer thereto will constitute reversible error.</p> <p>Same. — Evidence.— What May be Proven Under General Lenial. — Acts Beyond Authority. — In an action against a master for the negligent and wrongful acts of a servant it was incumbent upon the plaintiff to prove the commission of-the trespass, and that such trespass was committed by the servant while engaged, in the discharge of his duty as such servant; and, under the general denial, any evidence was admissible tending to disprove the trespass, or to prove that when the trespass was committed the servant was not acting for the master.</p>

<p>From Cass Circuit Court.</p>

<p>Mechanic’s Lien. — Material Men Seeking to Enforce. — Failure to Institute Suit within one Year.— Vokmtary Assignment by Contractor. — Fights of Assignee as against Material Men. — ’Where material men had filed their notice of an intention to hold a mechanic’s lien, but had not instituted an action to enforce the same within one year, as provided by statute, they are precluded from recovering the amount agreed to be due from the owner of the property, as against the assignee of the contractor, thelatter having made a voluntary assignment for the benefit of his creditors, including the amount so due from the property-owner.</p> <p>Sam®. — Notice of Material Men to Owner After Voluntary Assignment by Contractor. — Priority of Assignee Unaffected. — -When, after a general assignment by a contractor for the benefit of his creditors, certain material men gave notice to a property-owner of their intention to hold him responsible for material furnished by them to the contractor, the assignee of the contractor is entitled as against the material men to the amount agreed to be due from the property-owner for said material.</p>

<p>Insurance. — Premium Notes. — Suit on after Adjustment of Loss. — Set-off.— Former Adjudication. — Liability on Note. — An action was brought on a note given in payment of a premium on an insurance policy, and before the note became due the horse, on which the policy was issued, died, and due proof of said loss was made to the company. Afterwards, and before the note was due, the company cancelled said policy, and tendered plaintiff his note, and demanded a surrender of the policy, which was refused, and suit was brought on the policy for the loss sustained. A judgment was rendered therein on the policy by agreement of the parties for the sum of $150, which was still in force when suit was brought on said note. At the time judgment was rendered by agreement, nothing was said concerning said premium note. ’The defendant claimed that the $150 was in full settlement of all matters between him and plaintiff growing out of said policy.</p> <p>Held, that a judgment will not be a bar to a subsequent action unless the matter sued upon in such action might have been litigated in the action upon which the judgment rests, and the question as to what might have been litigated in the former action must be determined by the pleadings therein, and can not be proven by parol evidence; that the company was not bound, in the action on the policy, to set up the note in cross-demand, and was not barred from afterwards bringing an action on the same; that it could not be presumed that the amount of the note was deducted in the settlement of the loss under the policy, unless the insurance policy provided for the payment of the premium before the payment of any loss.</p>

<p>Master and Servant. — Action for Value of Services. — Judgment Beyond Allegation of Complaint. — Where, in an action for the value of personal services alleged to have been performed for the defendant, a judgment is rendered in the plaintiff’s favor for the value of services covering a period not embraced in the allegations of the complaint, the judgment must be reversed.</p>

<p>Demubbee. — Answer.—Form of as to. — Not Sufficient to “Bar” Action. — A demurrer that the answer does not state facts sufficient “ to bar the plaintiff’s action” is defective, and presents no question as to the sufficiency of such answer.</p> <p>Same. — Form.—Must Fulfill Statutory Requirements. — A demurrer must substantially fulfill the statutory requirements or it will not be error to overrule it.</p> <p>Bills op Exchange. — Bill Payable on Demand. — Character of. — Foreign Bill. —A bill of exchange, payable on demand, is in the nature of a bank cheek, and is intended to be paid without delay, having in view the reasonable convenience of the holder; and this rule applies toa bill payable in a foreign country.</p> <p>Same. — 'Negotiability.—Circulation of. — Bills of exchange, payable on demand, are negotiable, though not intended for general circulation, and may he put into the arteries of trade and supply commerce with aliment in the journey to their destination.</p> <p>Same. — Putting into Circulation. — Holder Must Without Unreasonable Delay.— The holder of a bill of exchange is bound to put it into circulation without unreasonable delay or forward it to the drawee for acceptance or payment, as the case may be.</p> <p>Same. — A Year's Delay in Circulation. — If a foreign bill of exchange, payable on time, is kept in circulation for a year or even more, such delay in presenting it will not discharge the drawer.</p> <p>Same. — Burden to Show Excuse for Delay in Presenting for Payment. — The burden is on the holder of a bill of exchange, where its presentment has been delayed, to show an excuse for such delay.</p> <p>Same. — Memorandum Attached to Bill.— When does not Show Excuse for Delay. —A memorandum attached to a bill of exchange, stating the names of the drawer, the drawee, the payee, the amount and date, and that a duplicate would be issued after six months if the original be lost, does not show an excuse for an unreasonable delay in presenting it for payment.</p> <p>Same. — Issuing Foreign Bills in Sets. — Object of. — Payment of orie, Payment of all the Set. — The issuance of a foreign bill of exchange in a set of three is to guard against accidental delay in the mails and to insure safe transmission; and the whole set constitutes one bill, and the discharge of any one of the three discharges all of them.</p> <p>Same. — Delay in Presenting Original. — Issuance of Duplicate. — Delay in presenting the original of a foreign bill of exchange for payment will not be excused by reason of the fact that such bill is issued in duplicate, and delay in presenting the original will relieve the drawer from liability on the duplicate.</p> <p>Same. — Delay Discharging Drawer. — Drawee Still liable. — A delay which discharges the drawer does not necessarily discharge the drawee, if the latter has funds of the drawer in his hands against which the hill was drawn.</p>

<p>Attachment. — Court Instructing Jury to Find for Garnishee Defendant, When May. — Where the evidence shows that the garnishee defendant was not indebted to the principal defendant, and showed no property belonging to him at the time the attachment proceedings are commenced, and there is no evidence of fraud or bad faith, the court may instruct the jury to find for such garnishee defendant.</p>

<p>Cbiminai. Law. — Indictment.—Foreman of Grand Jury Using Initial of His Christian Name. — The use of the initial of his Christian name by a foreman of the grand jury in signing the endorsement on the indictment, “A true bill,” is sufficient.</p> <p>Same. — Argument.—Misconduct of Prosecuting Attorney. — Staling Offer of Compromise. — A statement of the prosecuting attorney, in his statement of the case to the jury, that the State had offered to inflict only a nominal fine if the defendant would plead guilty, accompanied by a further statement that the offer was refused, though improper, is not such misconduct as will render a new trial necessary.</p> <p>Same. —Misconduct of Prosecuting Attorney. — Motion to Discharge Jury.— When Must be Made. — If the defendant considers that he can not have a fair trial because of the misconduct of the prosecuting attorney in his argument, notwithstanding the direction of the court to the jury that they must not consider such misconduct, he must move that the jury be discharged and a new jury called.</p> <p>Same.- — Obstructing Highway. — Nuisance.—To build and maintain a fence across a public highway is a public and indictable nuisance.</p> <p>Same. — Obstructing Highway. — Statute of Limitations. — The maintenance oi a fence, constructed many years before by the defendant across a public highway, until a date within two years previous to the finding of the "indictment, is an offence not barred by the statute of limitations.</p> <p>Same. — Evidence of Highway Obstructed. — It is not necessary that record evidence, in a prosecution for obstructing a highway, should be introduced to show that the road had been located and opened as a public highway; for a highway may become such by user.</p> <p>Same. — Obstruction of Highway. — Abatement of Nuisance. — In a prosecution for obstructing a highway, upon conviction, the court may order the abatement of the obstruction as a part of its judgment.</p> <p>Same. — Jury not Sole Judges of the Law. — While the jury have a right to determine the law, they are not the sole and exclusive judges of it.</p> <p>Highway. — Does not Depend upon its Condition or the Amount of Travel. — In determining whether a road has ever been opened as, and is in fact a public highway, the question does not depend on the condition it is then in, nor the amount of travel upon it; and such question may be determined without reference to the condition of the road or the amount of travel thereupon.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Monroe Circuit Court.</p>

<p>From the Henry Circuit Court.</p>