Volume 41 — Indiana Appellate Court Reports

<p>1. Pleading. — Answer.—Sustaining Demurrer to Paragraph of.— Facts Provable, Under Another Paragraph. — Sustaining a demurrer to a paragraph of answer is harmless, where the facts therein contained are provable under another paragraph, p. 2.</p> <p>2. Trial. — Instructions.—Erroneous in Favor of Appellant. — Appellant cannot complain of erroneous instructions, where the errors were in his favor, p. 2.</p> <p>3. Trusts. — Money Collected by Attorney. — Care.—Money collected by an attorney for his client belongs to the client; and in taking care of such money, the attorney is required to use the care that a prudent and diligent man would exercise, p. 4.</p> <p>4. Same. — Money Collected by Attorney. — Deposit in Attorney’s Name. — Bights of Client. — Where an attorney collects money for his client and deposits it in a bank to his own credit, the client may elect to treat such deposit as a trust fund, or hold the attorney personally responsible for the amount, p. 4.</p> <p>5. Evidence. — Declarations to Bank Officer as to Oionershvp of Money. — In an action by a client against his attorney for money collected, declarations made by such attorney to the officers of a bank where the attorney deposited such-money to his own credit, are inadmissible in evidence, there being nothing to show that the. attorney’s directions for depositing were not complied with, p. 4.</p> <p>6. Payment. — Checks.—Presumptions.—There is a disputable presumption that the acceptance oí a check does not discharge the indebtedness for which it is given, unless it is presented and paid or certified, p. 5.</p> <p>7. Same.- — Checks.—Burden of Proof. — The burden to prove that a check was received in payment and discharge of a debt is upon the drawer of the check, p. 5.</p> <p>8. Same. — Cheeks.—Evidence.—Where the evidence showed that an attorney collected money for his client and deposited it in his own name in a bank; that payment thereof was made by check which was accepted in settlement of the amount due; that the bank on which the check was drawn closed, and the check was never paid, such client cannot recover against such attorney for such money, p. 5.</p>

Prom Superior Court of Marion County (69,255); John L. McMaster, Judge. Suit by the VvTestern Construction Company against Russell B. Harrison, trustee, anti others. From a decree for plaintiff, Russell B. Harrison, trustee, and another appeal.

<p>Prom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Mary P. Pfingston against the Grand Lodge, Ancient Order of United Workmen of Indiana. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—negativing Contributory negligence.— In a complaint for damages for personal injuries, it is not necessary to negative contributory negligence, p. 13.</p> <p>2. Same. — Complaint.—negligence.—Obstructing Street. — A complaint alleging that defendant street railroad company negligently piled brick in the street and failed to place a danger signal thereby, and that plaintiff, without knowledge thereof, while riding his bicycle, ran against such obstruction and was injured, states á cause of action, p. 13.</p> <p>3. Tbial. — Instructions.—Erroneous Theory. — In an action against a street railroad company for personal injuries sustained by the plaintiff in riding his bicycle, at night, against a pile of brick negligently placed in the street by defendant, instructions framed upon the theory that contributory negligence is a matter of law, and that defendant's negligence consisted in failing to keep the street in repair, were properly refused, p. 13.</p> <p>4. Same. — Instructions.—Bicyclists.—Care.—Presumptions as to Condition of Streets. — xln instruction that a bicyclist has the right to ride his bicycle on the streets at night, and may assume that the streets are not obstructed, and that he is not guilty of contributory negligence as a matter of law in so doing, is correct, p. 14.</p>

<p>Prom Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by Seymour M. Closson against Martin J. Bligh. Prom a judgment for defendant, plaintiff appeals.</p>

Prom Huntington Circuit Court; James M. Hatfield, Special Judge. Suit by James Gallagher against John Heaston and another, as executors of the will of John McGlinn, deceased. Prom a decree for plaintiff, defendants appeal.

<p>1. Pleading. — Complaint.—Work and Labor. — Initial Attack on Appeal. — A complaint alleging that defendant is indebted to plaintiff in a certain sum for work and labor done by plaintiff for defendant, an itemized bill of which is attached to and made part of the complaint, is sufficient, when attacked for the first time on appeal, p. 24.</p> <p>2. Parent and Child.- — Husband and Wife. — Work and Labor.— Evidence.' — Where a bill of particulars, in an action by the husband and father for services performed by himself, his wife and child, specifies the services performed by such wife and child, it is not erroneous to admit evidence of the value of their services, p. 25.</p> <p>3. Appeal. — Weighing Evidence. — Where there is a conflict in the evidence, the decision of the trial court will be upheld, p. 25.</p> <p>4. Costs. — Agreed Judgment. — Attachment.—Release.—Where the plaintiff agrees to release his attachment lien and not to issue execution until a certain day, in consideration that no question will be made upon such attachment or upon the costs occasioned thereby, the costs of such attachment are properly taxed against the defendant, p. 20.</p>

Prom Hendricks Circuit Court; James L. Clark, Special Judge. Suit by James O. Vannice against James A. Dungan, as administrator of the estate of Washington Gregg, deceased, and others. ' Prom a decree for defendants, plaintiff appeals.

<p>Prom Payette Circuit Court; L. L. Broaddus, Special Judge.</p> <p>Action by Charles Jones against John G. Hammond. Prom a judgment for plaintiff, defendant appeals. ■</p>

Prom Whitley Circuit Court; Joseph W. Adair, Judge. Pinal report of Albert Bush, as administrator of the estate of Joseph Bush, deceased, to which Catherine Bush files exceptions. Prom an order striking out such exceptions, ex-ceptor appeals.

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by the Board of Commissioners of the County of Boone, against Theodore R. Caldwell. From a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (68,470); J.ames M. Leathers, Judge.</p> <p>Suit by William H. Johnson and another against the Home Brewing Company. From a decree for plaintiffs, defendant appeals.</p>

From Whitley Circuit Court; Joseph W. Adair, Judge. Pinal report of Albert Bush, as administrator of the estate of Joseph Bush, deceased, to which Catherine Bush excepts. Prom a judgment for the exceptor, the administrator appeals.

Prom Porter Circuit Court; Willis C. McMahan, Judge. Application of Louis Berg for license to retail intoxicating liquors, against which J. M. Hale and others remonstrate. Prom a judgment for the applicant, remonstrants appeal,

<p>1. Tbial. — Instructions.—Applicability of, to Evidence. — Appeal.— Under §691 Burns 1908, §650 R. S. 1881, as well as in tbe absence of a statute, the courts, on appeal, where the evidence is not in the record, will consider that the instructions given in a case were applicable to the evidence produced, p. 54. '</p> <p>2. Same. — Instructions.—Evidence.—Appeal.—Under the act of 1903 (Acts 1903, p. 338, §§4-6, §§664-666 Burns 1908) parties may appeal by including only that portion of the evidence that illustrates the ruling of the trial court, such act being remedial. Roby, J., concurring, pp. 55, 59.</p> <p>3. Appeal. — Harmful Error. — Reversal.—A substantial error is ground for reversal, unless shown to be harmless, or cured by the court, p. 56.</p> <p>4. Same. — Bills of Exceptions. — Settling.—It is the duty of the trial judge to settle bills of exceptions; and his motive should be to have such bills state the facts, p. 56.</p> <p>5. Same. — Errors.—When Harmful. — Whether an alleged error is harmless must be determined from the facts of the particular case. p. 57.</p> <p>O. Same. — Precipe.—Absence of. — Where there is no precipe, or one not calling for a specific part of the record, it is the duty of the clerk to certify a complete transcript, p. 57.</p> <p>7. Tbial.. — In structions. — Negligenee. — Contributory.—Proximate Cause. — Instructions, in a personal injury case, stating that if the plaintiff was guilty of contributory negligence he cannot recover, are erroneous, since such negligence, to defeat plaintiff, must be a proximate cause of the injury, p. 58.</p> <p>8. Same.- — Instructions.—Contributory Negligence. — Carriers.—An instruction, iu a personal injury case, that if the plaintiff, a passenger on an interurban railroad, was guilty of any act that contributed to bis injury, he cannot recover, is fatally erroneous . under any view of the evidence admissible in the ease. pp. 58, 61.</p> <p>9. Same. — Instructions.—Hoio Considered. — Instructions in a case must be considered as a whole; and a judgment should not be reversed, where an error in one of them is not misleading, p. 58.</p> <p>10. Same. — Instructions. —■ Curing. — Contributory Negligence. — Curriers. — An instruction, in a personal injury case, that if the passenger was guilty of any act contributing to his injury, he cannot recover, is not cured by an instruction that if the evidence as to the proximate cause of the injury is evenly balanced, the verdict should be for the defendant, since it leaves in doubt tbe party on whom rests the burden to prove contributory negligence. p. 58.</p> <p>11. Tbial. — Instructions.—Curing.—Erroneous instructions may be cured only by their withdrawal, p. 58.</p> <p>12. Same. — Instructions. — Evidence.—Statutes.—Where the instructions, but not the evidence, are contained in the record, and one of such instructions is bad under any evidence admissible within the issues, the judgment will be reversed, whether the appeal was perfected under the act of 1908 (Acts 1903, p. 33S, §§4-0, §§664-666 Burns 1908), or under §691 Burns 1908, §050 R. S. 1881. p. 59.</p>

Prom Monroe Circuit Court; James B. Wilson, Judge. Petition by Henry C. Duncan for the levy of a railroad subsidy tax, against which Grant Cox and others remonstrate. Prom a judgment for remonstrants, petitioner appeals.

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Suit by Prank J. Pashong against the Board of Commissioners of the-County of Huntington. Prom a decree for plaintiff, defendant appeals.</p>

<p>From Dubois Circuit Court; E. A. Ely, Judge.</p> <p>Suit by Andrew Greener and others against Robert H. Fleming and others. From a decree for plaintiffs, defendants appeal.</p>

<p>Prom Superior Court of Marion County (64,356) ; James M. Leathers, Judge.</p> <p>Action by James C. Eaton, by his next friend, against the Parry Manufacturing Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Pleading. — Complaint.—Contracts.—Assignment.—Notice of. — Failure to Cive. — A complaint by tbe assignee of a contract, providing that tbe second party should employ a pumper for an oil well, selected by the first party, is bad, where it fails to show that notice of such assignment was given to such second party.</p>

<p>1. Descent and Distbibution. — Payment of Debts. — Wills.—Legatees are not entitled to their legacies until the testator’s debts are paid. p. 100.</p> <p>2. Wills. — Legacies.—Charge to Pay Debts. — Creditors’ Rights.— Testators have the right to charge the payment of their debts upon certain legatees; but charges to pay so made do not affect the rights of the creditors to be paid. p. 101.</p> <p>3. Same. — Legacies.—Charges to Pay Debts. — A will bequeathing to testator’s wife one-third of the testator’s property as soon as it can be converted by the executor into money, one-third to testator’s nephew “after the payment of [testator’s] debts,” and one-third to certain other designated persons “after the payment of [testator’s] debts,” gives to the widow one-third of the gross amount of such estate, and to the other legatees the remaining two-thirds subject to the payment of all of testator’s debts, p. 101.</p>

From Huntington Circuit Court; Levi Block, Special Judge. Suit by Andrew G. Brookover as guardian' of Mary A. Brookover, an insane person, against Henry F. Kase, as city treasurer of the City of Huntington. From a decree for defendant, plaintiff appeals.

<p>From Rush Circuit Court; Will M. Sparhs, Judge.</p> <p>Suit by Elizabeth Radebaugh against Michael Scanlan. From a decree for defendant on his cross-complaint, plaintiff appeals.</p>

<p>Prom Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Ezra P. Eaton against the Meridian Life and Trust Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Albert W. Kelsay against the Chicago, Cincinnati & Louisville Railroad. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by Susan Goben against the Home Building, Loan Fund & Savings Association and another. From a decree against plaintiff, she appeals.</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Suit by Omer T. Ludlow, as guardian, against Carrie G. Colt and another. From a decree for defendants, plaintiff appeals.</p>

<p>Prom Union Circuit Court; George L. Gray, Judge.</p> <p>Action by Laura Lathrop, as administratrix of the estate of Alexander Lathrop, deceased, against the Phoenix Accident & Sick Benefit Association. Prom a judgment for plaintiff, defendant, appeals.</p>

<p>' Prom Superior Court of Marion County (66,440) ; John L. McMaster, Judge.</p> <p>Action by Charles O. Wamsley, as administrator of the estate of Minnie Wamsley, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Prom Hamilton Circuit Court; Samuel B. Artman, Special Judge.</p> <p>Action by Plora J. Cipe, as administratrix of the estate of Sylvester H. Gipe, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Suit by Arthur C. Wright against Mary E. Retherford and others. Prom a decree for plaintiff, defendant Retherford and another appeal.</p>

<p>Prom Howard Superior Court; B. F. Harness, Judge.</p> <p>Suit by Daisy D. Jones against Prank J. Leeds and others. Prom the decree entered, plaintiff appeals.</p>

<p>Prom Huntington Circuit Court; Janies C. Branyan, Judge.</p> <p>Action by Edward Stuver against the City of Huntington. Prom a judgment for plaintiff defendant appeals.</p>

<p>1. Appeal. — Technical • Objections to Record. — Complaint.—Sufficiency. — Where a cause must be reversed upon other grounds, technical defects in the record, precluding the questioning of the complaint, will not be considered, and in the interest of both parties upon another trial, the sufficiency of the paragraphs of the complaint will be considered, p. 177.</p> <p>2. Pleading. — Complaint.—Master and Servant. — Negativing Notice of Defects. — In a common-law action by a servant against his master for personal injuries caused by defective appliances, the complaint must negative the servant’s knowledge of such defects, p. 177.</p> <p>3. Same. — Complaint.—Master and Servant. — Statutory Duty. — A complaint by a servant counting upon the master’s statutory liability, must allege facts showing that such master violated a statutory duty. p. 17S.</p> <p>4. Master and Servant. — Factory Act. — Defective Elevators.— Statutes. — Section 8025 Burns 1908, Acts 1899, p. 231, §5, requiring owners and lessees of certain manufacturing, mercantile and industrial establishments (1) to enclose and secure elevator shafts, where, in the opinion of the factory inspector, it is necessary, (2) to provide proper trap or automatic doors for freight elevators, if, in the opinion of the factory inspector, safety requires it, and (3) requiring the factory inspector to inspect elevators and require that they be kept safe, imposes the absolute duty upon such owners and lessees to provide their elevators with safety devices, only where' so ordered by the factory inspector, p. 178.</p> <p>5. Statutes. — Factory A.ct. — Construction.—Kindred Sister-State Legislation-. — In determining whether §8025 Burns 1908, Acts 1899, p. 231, §5, imposes upon factory owners an absolute duty to provide their elevators with safety devices, kindred similar legislation in other states, wherein it had been decided that an absolute duty was not thereby imposed, should be given great weight. p. 181.</p> <p>6. Same. — Factory Act. — Elevators.—Criminal Lato. — Damages.— The violation of §8025 Burns 1908, Acts 1899, p. 231, §5, requiring factory owners and lessees to provide certain precautions for the safety of their elevators, when ordered by the factory inspector, being penalized by a subsequent section (§8045 Burns 1908, Acts 1899, p. 231, §25), constitutes a misdemeanor, and also subjects such owners and lessees to a civil action'for damages, p. 181.</p> <p>7. Words and Phrases. — “Shall.”—Factory Act. — The word “shall,” as used in §8025 Burns 1908, Acts 1899, p. 231, §5, providing that the factory inspector “shall” require that elevators be kept in a safe condition, imports that they shall be where necessary and practicable, p. 181. ■ . i</p> <p>8. Appeal. — Instructions.—Interrogatories.—Master and Servant. —Assumption of ItisJc. — The giving of an instruction that defendant was under the statutory duty of providing safety devices on the elevator used in its establishment, regardless of any order on the part of the factory inspector, constitutes reversible error, where the answers to the interrogatories show that plaintiff knew of the defect, p. 182.</p>

<p>1. Insurance. — Election.—Waiver.—Burden of Proof. — Where assured’s right of action depends upon his election to accept, or the company’s waiver of, a provision of his policy, the burden is upon such assured to show such election or waiver, p. 18*5.</p> <p>2. Same. — Withdraioal of Reserve.^-Notice. — •Waiver.—Question for Jury. — Where assured failed to notify the company of his election to withdraw his accumulated reserve, but the company “lapsed” his policy and denied any liability thereunder, the question whether the company’s acts in “lapsing” such policy and denying liability constituted a waiver of its right to demand assured's election, was properly submitted to the jury. p. 185.</p> <p>3. Trial. — Instructions.—Insurance.—Policy.—Place of Execution. —An instruction, in an action upon an insurance policy that if the assured made an application for a policy of insurance, and paid the premium upon the policy to be issued, whose terms had been agreed upon; that such application had been forwarded to New York for acceptance at the home office of the company, and that such application was accepted, and the policy issued and returned to its Kentucky agent for unconditional delivery to assured in Kentucky, the policy would be governed by the New York law, is correct, p. 186.</p> <p>4. Contracts. — Offer.—Acceptance.—The acceptance, by word, writing, or conduct, of an explicit offer, creates a contract, p. 186.</p> <p>5. Same. — Offer.—Accept anee try Letter. — Lex Contractus. — Where an explicit offer is made to a' person in another state, and such offer is accepted unconditionally by a letter mailed in due course, the mailing of such letter closes the contract; and such contract is governed by the law of the state in which the letter is mailed, p. 1S7.</p> <p>6. Trial. — Question for Jury. — Insurance.—Notice of Forfeiture. — • Where assured testified -that he received from the company no notice of the forfeiture of his policy, and two agents of the company produced separate copies of such notice, which were materially different, the question whether a notice of forfeiture was mailed to assured is for the jury. p. 189. •</p> <p>7. Insurance. — Forfeitures.—Notice.—Where a statute provides that a forfeiture of an insurance policy can be enforced only after notice is sent to the assured, the giving of such notice is a condition precedent to the company’s right to forfeit, p. 1S9,</p> <p>8. Same. — Recovery of, by Bankrupt. — Where a bankrupt, thinking, and being legally advised, that his insurance policy was wholly worthless, failed to include same in his schedule in bankruptcy, and no trustee in bankruptcy was ever appointed, such bankrupt being afterwards discharged, he has the legal right to maintain an action on such policy. Comstock, J., dissenting, p. 189.</p>

<p>From Laporte Circuit Court; John C. Richter, Judge.</p> <p>Action by Daniel M. Henry and another against the City of Laporte. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Pleading. — Counterclaim.—Sales.—Implied Warranty. • — Damages. — A counterclaim, in an action for the price of iron pipe to be used in sinking an oil-well, alleging that defendant bought such pipe for the purpose of using it in sinking a certain well, to plaintiff’s knowledge, and that it was unfit for the purpose and worthless, and by reason of its unfitness, defendant was damaged. is sufficient upon demurrer, p. 202.</p> <p>2. Tkial. — Instructions.—Duplication— It is not erroneous to refuse instructions requested, which are already covered by those given, p. 204.</p> <p>3. Sales. — Implied Warranty of Fitness. — A dealer, as well as a manufacturer, who sells an article for a specific purpose, the purchaser having made no inspection nor tested its fitness therefor, impliedly warrants that the article is fit for the use intended, p. 205.</p> <p>4. Tbial. — Y arianee. — Amendments. — Presumptions. — Appeal. — Where there is a variance between the pleading and proof, which might have been obviated by an amendment at the trial, such pleading will be deemed amended on appeal, p. 205.</p> <p>5. Same. — Instructions.—Inapplicability to Evidence. — Sales.—Specific Articles. — Implied Warranty. — An instruction that if the plaintiff bought from the defendant, a dealer, a specific brand of pipe, there would be no implied warranty of fitness by defendant, is correctly refused as tending to mislead, where the uncontradicted evidence showed that the purchaser ordered such pipe without inspection: that it was properly branded; that the quality thereof could be determined only by actual use, and that it proved insufficient when tested by actual use. p. 20G.</p> <p>G. Evidence. — Exclusion of. — Cumulative.—It is not erroneous to exclude evidence showing that a’certain manufacturer made, during a specific period, but one kind of pipe, and that defendant sold, during the period in controversy, only such kind, where such facts were already established by uncontradicted evidence, p. 209.</p> <p>7. Appeal. — Weighing Evidence.- — A verdict which was supported by the evidence upon the theory of the complaint, will not be set aside on appeal, as unsupported, where the theory of the complaint was sufficient, p. 210.</p>

Prom Ripley Circuit Court; Willard New, Judge. Action by William Wuest, by his next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals. (Por order requiring appellee to file brief on appeal, see 40 Ind. App. 693).

<p>Prom Grant Circuit Court; II. J. Paulus, Judge.</p> <p>Suit by James M. Gillespie against John M. Duling. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Prom Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Monroe Huntzinger against William L. Townsend, as administrator of the estate of Olive J. Townsend, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

From Dearborn Circuit Court; G: E. Downey, Judge. Action by Margaret E. Cook against the Cincinnati, Lawrenceburg & Aurora Electric Street Railway Company. From a judgment for plaintiff, defendant appeals. (For decision on merits see — Ind. App. —) On motion to dismiss appeal.

<p>From Superior Court of Marion County (64,706) ; John L. McMaster, Judge.</p> <p>Action by the Romona Oolitic Stone Company against the Western Construction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Suit by Nancy J. Sanders against John P. Crawford and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>Prom Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by J ames A. Pring against the Indiana Union Traction Company. Prom a judgment on a verdict for plaintiff for $4,000, defendant appeals.</p>

<p>From Porter Circuit Court; Willis G. McMahan, Judge.</p> <p>Suit by Nathan DeMass, as administrator of the estate of Henry E. McDonald, deceased, against John A. Kreiger. From a decree for plaintiff, defendant appeals.</p>

From Marion Cirenit Court (14,327); Henry Clay Allen, Judge. Action by Mary E. Miznerr, by her next friend, against George W. Pein and another. From a judgment on a verdict for plaintiff for $3,000, defendants appeal. (For decision on transfer, see 170 Ind. —.)

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Suit by George Kunz against Stella S. Holbrook and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Appeal. — Initial Attack on Separate Paragraphs of Complaint.— The different paragraphs of a complaint cannot be separately attacked for the first time on appeal, p. 268.</p> <p>2. Same. — Assignment of Errors. — Joint.—A joint assignment, to be available, must be sufficient as to all joining therein, p. 268.</p> <p>8. Same. — Assignment of Errors. — Neto Trial. — Interrogatories.— Succeeding Street Railroad Company. — Where a street railroad company and its successor, which is alleged to have succeeded to the former company’s liabilities, are sued for an injury sustained because of the negligence of the former company, and both companies answer by denial, the former company’s separate motions for judgment on the answers to the interrogatories, and for a new trial, are not available to the successor company under a joint assignment of errors on appeal, though the successor company admitted in evidence that it was liable for the former company's negligence, p. 268.</p> <p>4. Same. — Assignment of Errors. — Failure to Present Questions.— Dismissal. — Where the assignment of errors fails to present any question for review, the appeal will be dismissed, p. 271.</p>

<p>1. Trial. — Instructions After Verdict. — The court has the right in a civil case, even after a verdict has been returned, but before the jury is discharged, to withdraw an erroneous instruction and to resubmit the case to the jury. p. 272.</p> <p>2. Appeal. — Verdict too Small. — Appellant will not be heard to complain that the verdict against him was too small, p. 273.</p> <p>3. Principal and Agent. — Notes.-—Evidence.—Circumstantial.— Where the evidence showed that, without express authority, the father signed his son’s name to a note as surety, such father being principal, and that it was the business custom for the father so to sign such son’s name, the notes so signed being honored by the son, a verdict against the> son will be upheld, p. 273.</p>

<p>1. Pleading. — Complaint. — Sales. — Liquidated Damages. — Contracts. — A complaint alleging that a partnership firm contracted to purchase from plaintiff a cash register and, failing to accept same when delivered, were to pay to plaintiff, as liquidated damages for breach of contract, and not as penalty, the sum of $440, and that said firm did, without right, refuse to accept such register on delivery, states a cause of action, p. 275.</p> <p>2. Appeal. — Complaint.—Paragraphs.—Sustaining Demurrer to One. — Pacts Provable Under Another. — It is not reversible error to sustain a demurrer to a paragraph of complaint whose facts are provable under another paragraph, p. 276.</p> <p>3. Pleading. — Answer.—Sales.'—Rescission.—-An answer showing that defendant returned to plaintiff on a certain day a cash register contracted for from plaintiff; that such register was received and accepted by the plaintiff in rescission of such contract, and that plaintiff has ever since retained same, sufficiently shows a rescission of such contract, p. 276.</p> <p>4. Trial. — Venire de Rovo. — Defective Verdict. — Sales.—Contracts. —Damages.—In an action for liquidated damages for breach of a contract for the sale of a cash register, a verdict in form: “We the jury find for the defendant said defendant paying forty ($40) to plaintiff and plaintiff retaining the cash register,” is fatally defective on a motion for a venire de novo. p. 277.</p>

<p>1. Municipal Cobpobations. — Towns.—Sewers.—Condemnation of Private Property for. — Linder §4443p Burns 1901, Acts 1901, p. 401, §10, towns have the legal right to condemn private property for an outlet for a public sewer, p. 282.</p> <p>2. Same. — Towns.—Sewers.—Void Proceedings. — Where the town engineer’s report of a proposed sewer failed accurately to describe the beginning, route, terminus, fall, outlet, size or cost thereof, or the boundary of the drainage district, description of lands which would be damaged, the names of the owners, or the damage caused thereby, such requirements being jurisdictional, the proceedings taken thereon for the construction of such proposed sewer are void. p. 283.</p> <p>3. Same. — Sewers.—Outlets.—Notice.—A notice Of the construction of a proposed sewer, stating that the outlet of such sewer was to be “at the lot line” of the plaintiff’s property, is notice that the sewer will not enter her lot. p. 280.</p> <p>4. Same. — Totons.—Sewers.—Engineer’s Report. — The town engineer’s report of a proposed sewer, as finally adopted, should set out the boundaries of the drainage district, the size and kind of sewer, the outlet and probable cost thereof, and specific details' of the work. p. 286.</p> <p>5. Appeal. — Briefs.—Evidence.—Where it is contended that the decision is unsupported by the evidence, the appellant must set out the evidence or substance thereof in his brief, p. 287.</p> <p>6. Same. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 288.</p>

<p>From Superior Court of Marion Cqunty (66,407); John L. McMaster, Judge.</p> <p>Suit by the Indianapolis Brewing Company against Helena Behnke. Prom a decree for defendant, plaintiff appeals.</p>

From Dubois Circuit Court; E. A. Ely, Judge. Action by Fannie B. Mitchell against the City of Tell City. Prom a judgment for defendant on the answers to interrogatories, notwithstanding a general verdict for plaintiff for $1,000, plaintiff appeals.

<p>1. Courts. — Circuit.—Jurisdiction.—The circuit courts of Indiana have general jurisdiction; and their judgments import jurisdiction of the subject-matter and of the parties to the action, p. 300.</p> <p>2. Judgment. — Validity.—A decree showing that the parties appeared to the action, and that an order was made upon defendant to pay to the plaintiff a certain sum of money, is valid upon its face. p. 300.</p> <p>3. Same. — Validity.—Collateral Attach. — A decree of . the circuit court for the payment of money is not subject to a collateral attack, where the court had jurisdiction of the parties and subject-matter. p. 300.</p>

<p>1. Appeal. — Parties.—Vacation.—In a vacation appeal, the appellant must make his coparties appellants, p. 303.</p> <p>2. Same. — Parties.—Notice.—Vacation.—Jurisdiction.—A party taking a vacation appeal may serve notice thereof upon his co-parties or their attorneys of record, and file the proof of such service with the court on appeal, notice being necessary to jurisdiction, p. 304.</p> <p>3. Same. — Parties.—Notice.—Filing of, in Trial Court. — The filing of the service of notice on coparties, in a vacation appeal, in the trial court and the certifying of same in the transcript on appeal, gives the court, on appeal, no jurisdiction, such- procedure being wholly unauthorized, p. 304.</p> <p>4. Same. — Parties.—Notice.—In a vacation appeal a notice served upon the coparties’ attorneys, who were not attorneys of record, is insufficient, p. 305.</p> <p>5. Same. — Trial Court Record. — Notice of Appeal. — Statutes.—Section 663 Burns 1908, Acts 1903, p. 338, §3, providing that all motions or pleadings filed shall be a part of the record without a bill of exceptions, applies only to such pleadings and motions properly filed in the trial court, and does not apply to a notice of appeal to coparties, which should be filed only with the court on appeal, p.- 305.</p> <p>6. Same. — Final Judgment. — Complaint.—Cross-Complaint.-—Notice to Coparties. — Appearance.—Where plaintiff filed an action against defendants and took a judgment against all of them on December S, from which one defendant prayed an appeal, and such defendant, in such action, filed a cross-complaint against his codefendants and others, but did not make the plaintiff a party thereto, a decree thereon being entered in such defendant’s favor on March 23 following, the judgment on the complaint was .final as to plaintiff, and notice to coparties of an appeal therefrom must be filed within the year, an appearance entered after-wards being unavailing, p. 306.</p> <p>7. Same. — Parties.—Judgment Defendants. — Where a joint judgment is rendered against three defendants — two upon default, and one upon trial — the defaulting defendants must be notified by the other defendant who desires to take a vacation appeal, p. 307.</p> <p>8. Same. — Right of. hy Defaulting Defendants. — Defendants who suffered judgment by default, have the right to take an appeal from the judgment rendered, p. 307.</p> <p>9. Appeal. — Jurisdiction.—Waiver.—Where the court, on appeal, has no jurisdiction, the failure of appellee to move to dismiss the appeal, or his filing of a brief upon the merits, is no bar to the dismissal of such appeal, p. 307.</p>

<p>1. Pleading!. — Complaint. ■ — ■ Contracts.- — Offer.—Acceptamce.—Executed.- — Money Due Under. — A complaint alleging that defendant ordered certain books from plaintiff, and agreed to pay a certain price therefor; that the books were shipped to defendant, who refused to receive them, the complaint failing to show that the order was ever accepted, and demanding the contract price, is for money due upon an executed contract and not for damages for breach thereof, and is insufficient, p. 308.</p> <p>2. Same. — Complaint.—Contracts.—Sales.—Retention of Title. — Re- ■ fusal of Purchaser to Receive Goods. — A complaint showing that defendant contracted for a sot’ of books, the plaintiff to retain title until payment was made therefor; that the books were shipped but defendant refused to accept same, and failing to show who had the books, is bad, where the action is for money due under the contract, and not for a breach thereof, p. 310.</p>

<p>1. Appeal. — Assignments of Errors. — Initial Attack on Separate Paragraphs of Complaint. — An assignment of errors alleging that the paragraphs of a complaint severally fail to state facts sufficient to constitute a cause of action, presents no question on appeal, though such paragraphs were severally demurred to below and an exception saved, p. 312.</p> <p>2. Same. — Assignments of Errors. — Complaint.—Paragraphs.—Initial Attack on. — Though each paragraph of a complaint is fatally defective, a reversal for that reason cannot be ordered where the initial attack, on appeal, is made only upon the separate paragraphs, no question being raised as to the entire complaint, p. 312.</p> <p>S. Same. — Instructions.—Whether in Record. — Under §544a Burns 1905, Acts 1903, p. 338, §1, providing, among other things, that the judge, before instructing the jury, shall indicate by a signed memorandum, at the close of the instructions requested, which thereof would be given and which refused, instructions given on November 13 and subscribed by the judge on November 28 do not comply therewith, and are not a part of the record, p. 313.</p> <p>4. Appeal. — Instructions.—Whether in Record. — Where a party presents a number of instructions, and the judge subscribes a memorandum at the close thereof, stating which thereof were given, and which refused, such instructions are not a part of the record under §560 Burns 1908, §535 R. S. 1881, requiring the judge to subscribe and date a memorandum at the margin or bottom of each instruction showing whether it was given and excepted to, or refused and excepted to. p. 315.</p> <p>5. Vendor and Purchaser. — Misrepresentations as to Amount of Land Conveyed. — Where the vendor misrepresented, to the purchaser, the boundaries of his land, and falsely represented that the tract sold contained 35.70 acres, whereas it really contained but 29 acres, a verdict for the proportionate value of the shortage will not be disturbed, p. 315.</p>

<p>1. Judgment. — Form of. — Foreclosure.' — -Evidence. — Appeal. — ■ Where the evidence is not brought into the record, the Appellate Court cannot hold that the decrees entered in a foreclosure case are improper, p. 317.</p> <p>2. Same. — Motions to Modify. — Where the form of a decree is improper, the remedy is a motion- to modify, p. 317.</p>

Prom Vanderburgh Circuit Court; Louis O. Basch, Judge. Action by Philip W. Prey against William P. Miedreich, as administrator de bonis non of the estate of John Durkin, deceased. Prom a judgment for plaintiff;, defendant appeals.

<p>Prom Henry Circuit Court; John M. Morris, .Judge.</p> <p>Action by Lorenzo D. Gwynn, as administrator of the estate of John J. Stock, deceased, against Eliza M. Stewart. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Motions to Make More Specific. — Complaint.—Work and Labor. — The overruling of a motion to make more specific a complaint demanding, among other things, a judgment for work and labor performed, is harmless error, where the decision was against plaintiff as to everything except for such work and labor, p. 330.</p> <p>2. Same. — Motion to Make More Specific. — Complaint.—Work and Labor. — It is not reversihle error to overrule a motion to make more specific a complaint alleging that defendant owed plaintiff $300 for three months’ work and labor commencing June 7 and ending September 7; that he was employed as defendant’s manager at $100 per month, and that he performed services of the value of $300 which the defendant accepted, p. 330.</p> <p>3. Wokk and Labok. —- Corporations. — Officers. —■ Evidence. — Evidence showing that plaintiff, who was an officer of a private corporation, was solicited by a director of the company who was the majority stockholder thereof, to manage the corporation’s affairs, and that in the performance thereof plaintiff did common labor of the value of $300, such labor being accepted by such company, entitles plaintiff to a judgment for such amount, p. 331.</p> <p>4. Evidence. — Employment of Laborer by Director of Corporation. —Contracts.—In an action against a corporation by an officer thereof, for services performed, evidence that a director, who was a majority stockholder, directed plaintiff to perform such labor, is admissible to show the employment, and that the services were rendered with expectation of pay. p. 332.</p>

<p>Appeal. — Parties.—Jurisdiction.—Where all of the plaintiffs, in whose favor a partition decree was entered, were not made parties to the assignment of' errors on appeal, such appeal will be dismissed.</p>

<p>Prom Lake Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by Joseph Antonia against the Hammond, Whiting & East Chicago Railway Company. Prom a judgment on a verdict for plaintiff for $1,500, defendant appeals.</p>

<p>From Randolph Circuit Court; John W. Macy, Judge.</p> <p>Action by Nellie Clark against the United States Health and Accident Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations.- — Foreign.—Agents.—Right to Do Business. — Jurisdiction. — Contracts.—Section 3453 Burns 1901, §3022 R. S. 1881, providing that every agent, of a foreign corporation, in this State shall file with the clerk of the circuit court, a certificate of authority, and §4099 Burns 1908, §3023 R. S. 1881, providing that, • as a condition precedent to the right to do business, such agent shall file a certificate authorizing the company to be sued upon ■ any claim arising out of the transactions of such agent, do not apply to transactions between the company and such agent, nor to the acts of a nonresident manager who enters this State for the purpose of appointing agents, p. 362.</p> <p>2. Sales. — Implied Warranty of Fitness. — Contracts.—A contract by which an agent agrees to take any of his principal’s unsold fertilizer, on hand at a certain date, at a certain price, cannot be enforced, where the fertilizer, when delivered to the agent, was unsalable and unfit for the purposes intended, p. 363.</p> <p>3. Same. — Conditional.-—-Demand.—Contracts.—A contract providing that the agent will purchase his principal’s unsold fertilizer at an agreed price, if the principal so requests, is not enforceable until a request is made. p. 363.</p>

<p>1. Appeal. — Briefs.—Alleged errors not discussed are waived, p. 3GG.</p> <p>2. Descent and Distribution.' — Widower’s Rights m ■Deceased, Wife’s Real Estate. — Estoppel.—Waiver.—Under §3016 Burns 1908, Acts 1891, p. 71, §1, a widower, unless he is estopped, or has waived his right, is entitled to one-third of his deceased wife’s real estate subject to its proportion of the wife’s antenuptial debts, p. 366.</p> <p>3. Estoppel. — Mortgages.—Descent and, Distribution. — A husband who Joins his wife in a mortgage of her lands to pay her debt, the mortgage stipulating that the mortgagors agree to pay the debt secured, is estopped, upon his wife’s death, from asserting his marital rights to such land. p. 366.</p>

<p>Easements. — Implied—Light.—Vendor and Purchaser. — Deeds.— A deed, absolute upon its face, executed to one-half of a two-story building, a stairway next to the center of the grantor’s side leading to the second floor, and a hallway of substantially the same width as the stairway extending forward from the head of the stairs to a window, on the grantee’s side, which furnished light for the stairway, does not impliedly contain a reservation of an easement to the light from such window.</p>

<p>Prom Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Prosecution by the State of Indiana, on the relation of Ezza M. Nussear, against Alonzo Breeden. Prom a judgment for defendant, the State appeals.</p>

<p>1. Bankbuptcy. — Fraud.—Discharge.—Public Policy. — Public policy forbids the discharge of a bankrupt from his liabilities incurred through fraud while acting in an official or fiduciary capacity, whether such liabilities are in the fornj of a judgment or otherwise, p. 376.</p> <p>2. Same. — Fraudulent Taking of . Note. — Discharge.—Defendant’s fraudulent securing of possession of a note executed by defendant to plaintiff does not amount to a fraud so that the debt evidenced by such note is not the subject of a discharge in bankruptcy, such note being mere evidence of a contract debt free from fraud, p. 376.</p> <p>3. Same. — Preferences.—Validity.—Plaintiff’s surrender to defendant of a note payable to him by defendant, in consideration of the full payment of said note by said defendant after his discharge in bankruptcy, constitutes a fraud upon the other creditors ; and the proof of the debt evidenced by such note, though reduced to a judgment, in bankruptcy constitutes a discharge thereof, p. 376.</p>

<p>Prom Lake Superior Court; Cornelius B. Collins, Special Judge.</p> <p>Action by Bumadette Eagan, by her next friend, against the City of Whiting. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Contracts.—Breach.—Initial Attach on Appeal. — Res Judicata. — Where the complaint states that defendants failed to comply with the terms of their contract, and then specifically alleges wherein they failed, it is sufficient when attacked for the first time on appeal, especially where on prior appeals it had impliedly been held sufficient in sustaining demurrers to answers, p. 381.</p> <p>2. Same. — Complaint. — Contracts. — Assignments. — A complaint showing that defendant lessees assigned their lease which contained their express covenant to pay, is not bad as failing to show a liability, since such assignment would not release them from their covenant, p. 3S1.</p> <p>3. Contracts. — Leases.—Covenants.—Parol Releases. — An express covenant to pay, contained in a written gas and oil lease, cannot be released by a parol agreement entered into by which the lessor agreed with the lessees and their assignee to permit such assignee to be substituted as lessee, and to relieve such lessees from liability, p. 381.</p> <p>4. Appeal. — Judgment.-—Lato of the Case. — Answer.— Where an answer setting out certain facts has been held insufficient upon prior appeals, such decisions are res judicata as to the sufficiency of such facts, when pleaded in a subsequent answer, p. 3S3.</p> <p>5. Contbacts. — Breach.—Evidence.—Veto Trial. — Where the evidence shows that defendants violated their contract, to plaintiff’s damage, a decision for plaintiff is not unsupported by the evidence. p. 383.</p> <p>G. Same. — Drilling Wells. — Time.—A contract providing that defendants shall drill “at the rate of one well every sixty days after date until five wells are completed” means that one well should be drilled -within sixty days, a second, within 120 days, etc., from the date of the lease, p. 383.</p> <p>7. Same. — Drilling Wells. — Failure.—Penalty.—Where the first well is drilled within the time fixed in a contract, a provision therein, that in case no well is completed within GO days from date the grant shall become null and void unless a penalty of $1 per day is paid for each day completion is delayed, .does not apply in determining liability for delay in sinking subsequent wells, p. 384.</p> <p>8. Damages. — Contracts.—Drilling Wells.^-Delay. — Where a contract provides that in case any well is not completed in sixty days the lessees shall pay $1 per day until such well is completed, the contract calling for the sinking of five wells, the $1 payment attaches to each of three alleged delayed wells-for the days each of the wells was delayed, p. 384.</p> <p>9. Appeal. — Parties.—Death.—Where an appellant died after submission of the cause on appeal, the judgment will be entered as of date of submission, p. 385.</p>

<p>1. Mechanics’ Liens. — Separate BtMdings. — Notice.—Where, in repairing a house, some of the tin gutters, at the owner’s request, were placed on the barn on the ■ owner’s immediate premises, a mechanic’s lien can be taken for such labor and material; and a notice of an intention to hold a lien for labor and material so furnished, is not void. pp. 386, 387.</p> <p>2. Same.' — Notice.—Defects.—A notice describing the land upon which a mechanic’s lien is sought as the north part of a certain quarter section, and another part of said section, instead of specifying all of such section except a certain part, is not void; and a lien can be decreed thereon, upon averment and proof of the true description, the notice being sufficient to apprise the owner of the property intended, pp. 386, 388.</p> <p>3. Same! — Servants of Subcontractors. — Second Subcontractors.— Under the Indiana mechanics’ lien statute (§8295 Burns 1908, Acts 1899, p. 569), providing, among other things, that “contractors, subcontractors, * * * and all persons performing labor or furnishing material or machinery for the erection, altering, repairing, or removing any house * * * may have a lien,” the servant of a subcontractor, as well as an independent contractor of a subcontractor, has the right to hold a mechanic’s lien for labor performed upon a building; and it is not necessary in such case to show a contractual relation with the owner, pp. 387, 388.</p>

<p>1. Pleading. — Complaint.—Railroads.—Setting Fires. — Consequent Dmiages. — A complaint alleging that plaintiffs owned a house of the value of $4,000; that defendant railroad company negligently set it on fire whereby it was totally destroyed, and demanding damages therefor, is sufficient on demurrer, though it does not in terms allege that plaintiffs were damaged by reason of such fire, p. 392.</p> <p>2. Railroads. — Setting Fires. — Defective Spark-Arresters. — Circumstantial Evidence. — Evidence showing that defendant railroad company’s freight-engine passed within 100 feet of plaintiffs’ mill; that such engine was “working hard,” and throwing sparks and cinders promiscuously to a distance of 110 feet; that first-class spark-arresters would not so emit sparks and cinders, and that about twenty minutes later plaintiffs’ mill burned, supports a verdict for plaintiffs that defendant set the fire, and that a defective condition of defendant’s spark-arrester was the cause thereof, p. 393.</p> <p>3. Trial. — Instructions.—Peremptory.—Railroads.—Setting Fires. —A peremptory instruction should be refused, where plaintiffs proved by circumstantial evidence that defendant railroad company, by the use of its defective spark-arrester, set fire to plaintiffs’ mill and destroyed it. p. 395.</p> <p>4. Railroads. — Setting Fires. — Standard of Care. — Railroad companies are required to use ordinary care under the circumstances to prevent the setting of fires, p. 396.</p> <p>5. Trial. — Instructions.—Railroads.—Setting Fires. — Standard of Care. — Instructions stating that railroad companies are required to use a high degree of care and skill to prevent the escape of fire from their engines, are not prejudicially harmful, where other parts of the instructions correctly state that ordinary care under the circumstances is the requirement, such high degree of care and skill evidently referring to the equipment of the locomotives with spark-arresters, p. 396.</p>

<p>1. Trial. — Instructions. — Peremptory. — Evidence.—How Considered. — In determining whether a peremptory instruction for defendant should be given, the court should consider only the evidence most favorable to the plaintiff, p. 399.</p> <p>2. Interurban Railroads. — Negligence.—Speed.—Signals.—It is negligence for an interurban railroad company to run a car, at night, without a headlight, over a street at the speed of fifteen - miles per hour, without giving any warning, contributory negligence being the only defense in cases of injury therefrom, p. 399.</p> <p>3. Trial. — Instructions.-—Peremptory.—Contributory Negligence.— A peremptory instruction for defendant on the ground that plaintiff was guilty of contributory negligence, should be given only when the undisputed evidence will not support any other inference. p. 399.</p> <p>4. Interurban Railroads. — Pedestrians.—Contributory Negligence. —A traveler who, in attempting, at night, to cross an interurban railroad track on a street, was struck by an interurban car running, without a headlight, at the rate of fifteen miles an hour, no signals of any kind being given, and who vainly looked for the approach of a car before attempting to cross, is not guilty of contributory negligence as a matter of law. p. 399.</p>

From Jay Circuit Court; John F. La Follette, Judge. Petition by J ames Givens for license to retail intoxicating liquors, against which Freeman Miller and others remonstrate. From a judgment for petitioner, remonstrants appeal. (On motion for leave to amend assignment of errors, see 39 Ind. App. 40.)

<p>1. Trial. — Verdict.—General.—Special.—Answers to interrogatories to the jury, in order to control the general verdict in a personal injury case, must completely negative every act of negli•gence alleged in the complaint, p. 405.</p> <p>2. Master and Servant. — Incompetent Servants. — Negligence of. — ■ Evidence Required. — The master is liable for the acts of a known incompetent servant only when such servant’s negligent conduct ■ contributes proximately to plaintiff’s injuries, p. 405.</p> <p>3. Same. — Mines.—Engineers.—Stopping Elevators. — The prompt stopping of a descending elevator in a mine shaft, by the engineer, in pursuance of a signal from the mining boss does not constitute negligence, though injury results to a servant on such elevator, p. 406.</p> <p>4. Trial. — Verdict.—General.—Special.—Conflict.—Conflicting answers to interrogatories to the jury nullify one another, p. 407.</p> <p>5. Same. — Verdict, — General. — Special. — Facts. — Inferences. — . Where the facts found in answers to interrogatories to the jury are such that diverse inferences might reasonably be drawn therefrom, it is for the jury to draw such inferences also; and they must be stated in the answers in-order to control the general verdict, no inferences being drawn as against the general verdict, p. 407.</p>

<p>1. Woek and Labob. — Parent and Child. — Implied Contracts. — A foster child is not entitled to'compensation from his foster parents for work and labor, unless the services were rendered with the expectation of reward, and received with the expectation of a recompense, p. 409.</p> <p>2. Same.--Parent and Child. — Implied Contracts. — Damages.—Evidence. — Where the evidence shows that plaintiff was received into decedent’s home as a member of the family, no agreement being made as to compensation for services, and the decedent often, expressed to others an intention of providing for plaintiff in her will, and said upon his attaining the age of twenty-one years, which was one or two years before decedent’s death, that plaintiff would not have to work for nothing, a verdict for $3,000 is excessive, p. 411.</p>

<p>1. Trial. — Conclusions of Law. — Exceptions.—An exception to the conclusions of law upon a special finding of facts admits, for the purposes of such exception, that the facts within the issues have been correctly and fully found, p. 414.</p> <p>2. Chattel Mortgages. — Trusts for Mortgagor. — Fraud.—Presumptions. — In the absence' of any agreement in a chattel mortgage that the mortgagor shall, or shall not account to the mortagee for mortgaged goods sold, by the mortgagor, no inference arises that such mortgage is fraudulent and therefore void. p. 414.</p> <p>8. Trial. — Burden of Proof. — Chattel Mortgages. — Fraud.—The burden of proving that a chattel mortgage is fraudulent as a trust in favor of the mortgagor is upon the party alleging same. p. 414.</p> <p>4. Same. — Special L'indings. — Chattel Mortgages. — Fraud.—Special findings showing that a chattel mortgage was executed upon a stock of goods, and failing to show that there was any agreement that the mortgagors should sell such stock and apply the proceeds to their own benefit, or that they were selling such stock without accounting therefor to the mortgagee, or that the assignee of the mortgagors did not have all of the stock so mortgaged, do not show that such mortgage was fraudulent, p. 415.</p> <p>5. New Tbial. — Special Findings. — Failure to Find Pertain Facts. —Failure of Evidence to Support. — Tlie failure of the court to find certain facts alleged to have been proved, or the failure of the evidence to support certain findings, does not constitute a ground for a new trial, p. 415.</p> <p>6. Tbial. — Special Findings. — Failure to Find. — Effect.—The failure to find an alleged fact is a finding against the party having the burden of proof thereon, p. 416.</p> <p>7 Chattel Mobtgages. — Foreclosure.—Fraud.—-The foreclosure, in favor of the mortgagee, of a chattel mortgage on a stock of goods in the possession of an assignee of the mortgagors, is not prejudicial to such assignee, where such mortgagee was the only creditor, even though such mortgagors did not account to such mortgagee for sales made from the stock, such assignee taking the title to such goods in trust for the benefit of creditors, p. 416.</p>

<p>Prom Randolph-Circuit Court; John W. Macy, Judge.</p> <p>Suit by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against John E. Peight and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Joseph G. Orr against the Indiana Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Yanderburg County; Alexander Gilchrist, Judge.</p> <p>Suit by Mary.Eompf against Jacob Ziegler and others. Prom the decree entered, Jacob Ziegler, Jr., appeals.</p>

<p>New Tkial. — Causes for. — Judgment “Contrary” to Evidence. — That the judgment of the court is “contrary to the evidence,” is not a ground for a new trial.</p>

From Steuben Circuit Court; Ezra D. Hartman, Judge. Action by Isaac Brown, as administrator of the estate of Emmett Brown, deceased, against the Lake Shore & Michigan Southern Railway Company. From a judgment on a verdict for plaintiff for $650, defendant appeals.

<p>Prom Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Suit by Penina Binford and others against Rose C. Small and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>Prom Pike Circuit Court; E. A. Ely, Judge.</p> <p>Suit bjr Joseph D. Barker and others against the Town of Petersburg. Prom a decree for defendant, plaintiffs appeal.</p>

<p>1. Insurance. — Premiums. — Payment.—Waiver.—Agency.—Where a collector for an insurance company accepts past-due premiums, sends them to the company, and they are accepted, the jury may infer a waiver of the conditions of the policy requiring, as a condition precedent to the validity of the policy, that such payments be made in advance, p. 455.</p> <p>2. Same. — Forfeitures.—Construction.—The provisions of an insurance policy for a forfeiture are construed most strongly against the insurer, and in favor of the assured, p. 456.</p> <p>8. Same. — Agen,is of the Insurer ancl Assured. — Validity of Provision for. — Provisions of an insurance policy that the company’s agent shall be considered the agent of assured for certain purposes, are void. p. 456.</p> <p>4. Appeal. — Bills of Exceptions. — How Considered. — Where a second bill of exceptions covering the incidents of the trial is filed, it will be considered as supplementing the first bill, the same as if both were contained in one bill. p. 456.</p> <p>5. Same. — Evidence. — Introduction. — Waiver. — Presumptions.— Where one bill of exceptions states that the insurance policy in question was in evidence, and another bill states that it was identified but not read to the jury, the court, on appeal, will, in order to sustain the regularity of the proceedings and judgment, indulge the presumption that the reading thereof to the jury was waived. Comstock, J., dissenting, p. 457.</p> <p>6. Same. — Merits.—Damages.—Where an unmeritorious appeal is taken, the court, on appeal, may assess proper damages in favor of appellee, p. 457.</p>

Prom Shelby Circuit Court; Will M. Sparks, Judge. Action by John Wendel against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for defendant notwithstanding a general verdict for plaintiff for $1,400, plaintiff appeals.

<p>1. New Trial. — Grounds.—Overruling Request for Jury Trial.— The overruling of a request for a jury trial is properly assigned as a ground for a new trial, p. 468.</p> <p>2. Appeal. — Briefs.—Setting Out Record. — Waiver.—Error assigned on the overruling of a request for a jury trial is not waived, where appellant’s brief merely sets out the request for such trial and the page and line of the bill of exceptions where such request is made á part of the record, p. 468.</p> <p>3. Trial. — Request for Jury Trial. — Complaint.—Paragraphs — Equity. — Where a complaint consists of two paragraphs, one of which constitutes an action at law, and the other a suit in equity, a request “to submit said cause to a jury for trial” is properly overruled, p. 468.</p> <p>4. Same. — Jury.—Contracts.—Reformation.—Where a complaint consists of two paragraphs, one for money due upon a contract, the other for a reformation of the contract and for a money judgment, the first paragraph, upon proper request, must be submitted to the jury for trial, and the second one is triable by the court alone, pp. 469, 470.</p> <p>5. Pleading. — Complaint.—Prayer.—The prayer of a complaint does not conclusively determine the character of a suit, but it should-be considered in determining same. p. 470.</p> <p>6. Estoppel. — Former Adjudication. — Action on Lease. — Answer of Alienation of Land. — Sustaining Demurrer. — Where an action was brought for money alleged to be due under a lease, and an answer was filed that plaintiff had sold and conveyed the leased land, to which answer a demurrer was sustained, the issues being closed by a general denial, and judgment was rendered for the plaintiff, such judgment does not estop defendant from alleging such defense of alienation in a subsequent suit for a reformation of the provisions of the deed, and for a judgment for the rentals due under the lease, p. 470.</p> <p>7. Same, —- Former Adjudication. — Issues. — Pleading. —■ The presumption is that everything provable under the issues in a former suit was determined therein; but for one to avail himself thereof, he must set out the facts constituting such estoppel, p. 473.</p>

<p>Prom Elkhart Circuit Court; James S. Dodge, Judge.</p> <p>Suit by Horace Shopert against the Indiana National Bank of Elkhart and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>1. Pleading. — Demurrer—Form of. — A demurrer alleging that the sixth paragraph of defendant’s answer “is not sufficient to constitute a sufficient cause of defense to plaintiff’s cause of action,” presents no question, p. 483.</p> <p>2. Appeal. — Briefs.—Failure to Discuss Errors. — Waiver.—A failure by appellant to discuss alleged errors is a waiver thereof, p. 484.</p> <p>3. Same. — Instructions.—Hoio Made Part of Record. — Instructions are made a part of the record (1) by order of the court, (2) by bill of exceptions, (3) under the statute (§561 Burns 1908, Acts 1907, p. 652). p.484.</p> <p>4. Same. — Instructions.—Malcing Part of Record. — Statutes.—In order to make instructions a part of the record under §561 Burns 1908, Acts 1907, p. 652, it must affirmatively appear that the exceptions to such instructions were written at the close thereof, dated and signed; or if excepted to orally, the entry thereof must appear upon the records of the court, p. 484.</p> <p>5. Evidence. — Witnesses.—Or edibility. — Limiting Evidence by Instructions. — Decedents’ Estates. — Where evidence is received, over plaintiff’s objection, in an action against an administrator, and upon plaintiff’s motion, an instruction is given limiting the consideration of such evidence wholly to the question of the credibility of another witness, the objection to the introduction of such evidence is waived, p. 485.</p> <p>6. Same. — Papers in Case.- — •Entries. — Former Adjudication.— Where a creditor of an estate procures an administrator to bring a suit in behalf of such creditor, a decree being obtained, the papers and entries in such suit are proper evidence of former adjudication, in a subsequent action by such creditor against the administrator of such estate to recover again on the same claim, p. 485.</p> <p>7. Appeal. ■ — ■ Weighing Evidence. — Witnesses. — Credibility. — The Appellate Court will not weigh conflicting evidence, nor determine the credibility of witnesses, p. 486.</p> <p>S. New Trial. — Surprise.—Diligence.—A new trial, on the ground of accident or surprise, will not be granted where the party failed to use diligence to procure the new evidence; and such diligence is not shown where the evidence was that of a vendee to whom the goods in controversy had been sold. p. 486.</p>

From Dearborn Circuit Court; George E. Downey, Judge. Exceptions by Elviena Block to the appointment of Frederick IT. Butt, as administrator with the will annexed of the estate of Albert W. Butt, deceased. From an order overruling her exceptions, she appeals.

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed in appellant’s brief are waived, p. 490.</p> <p>2. Same. — Briefs.—Rules.—The failure of appellant to comply strictly with Appellate Court rules in the preparation of his brief is not necessarily fatal, p. 490.</p> <p>3. Highways. — Petitions.—Initial Attack on Appeal. — Objections not made before the board of commissioners, in a highway case, cannot be made on appeal, p. 491.</p> <p>4. Same. — Description.—Sufficiency.—A highway petition which describes the proposed route with such certainty that a surveyor- can locate.it is sufficient, p. 491.</p> <p>5. Same. — Description.—A highway petition stating that the proposed road shall be forty feet wide, and shall begin in Davis township, Starke county, Indiana, at the northeast corner of section thirty, in-township thirty-four and range two west, thence to extend north on the section line dividing sections nineteen and twenty, and to terminate at the northeast comer of section nineteen, is sufficient, p. 492.</p> <p>6. Same. — Remonstrance. — Verification by Attorney. — Waiver.— Where a highway remonstrance was verified by a'remonstrant’s attorney, and the petitioners made no objection thereto before the board of commissioners, they cannot be heard to complain thereof on appeal, p. 492.</p>

<p>Prom Clark Circuit Court; Harry C. Montgomery, Judge.</p> <p>Action by Mary E. Martin against the Louisville & Jeffersonville Bridge Company and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1 Tbial. — Instructions. — Specificness. — Objections. — Where an instruction is correct, so far as it goes, it is the duty of the party objecting thereto to present one which is complete and specific. p. 503.</p> <p>2. Same. — Instructions.—Duplication.—Requested instructions are correctly refused, where the law and facts therein contained have been embodied in instructions given, p. 503.</p> <p>3. Same. — Instructions.—Proof of One of Several Acts of .negligence. — Complaint.—Where a complaint alleges that defendant railroad company caused a collision, injuring plaintiff!, by reason of its negligence in the construction, equipment, operation, management and control of its railroad and the trains thereon, an instruction that the plaintiff is entitled to recover upon proof of one of such acts of negligence, is correct, such acts being several and not joint, p. 503.</p> <p>4. Evidence. — Affidavit for Continuance. — Absent Witnesses. — Impeachment of. — Where an affidavit for a continuance was filed, in a personal injury case, setting out that a certain doctor, if present, would testify that the plaintiff was not injured, .and the plaintiff admitted, in order to go to trial, that he would so testify, plaintiff cannot, on the trial, impeach such doctor hy showing that he made statements agreeing with another physician that the plaintiff was injured as alleged. Watson, J., dissenting, pp. 504, 507.</p> <p>5. Witnesses. — Impeachment.—Methods.—Witnesses may be impeached by showing their reputations for veracity and morality, or by showing that they made statements contradicting their testimony, p. 506.</p> <p>6. Same. — Impeachment.-—Laying Foundation for. — Before a witness, testifying orally or by deposition, can be impeached because of his making contradictory statements, he must be asked concerning the making thereof, the time and place being specified, and be given an opportunity to deny or explain same. p. 506.</p> <p>7. Appeal. — Bill of Exceptions. — Introduction of Evidence. — Where the bill of exceptions shows that questions were asked, objections made and overruled, exceptions taken, answers given, motions to strike out made and overruled, and an exception taken, there is an affirmative showing that the evidence was introduced, although the court remarked: “Well, it has not been read to the jury yet,” such remark evidently referring to the introduction of other evidence, p. 509.</p>

<p>1. Pleadins. — Complaint.—Theory.—Mechanics’ Liens. — Where one paragraph of a complaint alleged that defendants were the owners of a certain lot, and that plaintiff furnished, to their contractor, materials used in a dwelling on such lot; the second, that defendant Nyce was the owner of the lot, and that plaintiff furnished such material to a contractor employed by Nyce’s agent, and the third, that Nyce was the owner of the lot and that, by his conduct, he is estopped from denying liability for the materials used in the erection of the house, such paragraphs proceed upon sufficiently definite theories, p. 514.</p> <p>2. Same. — Complaint.—Mechanics’ Liens. — Use of Materials Furnished. — Paragraphs of a complaint for the foreclosure of a mechanic’s lien, alleging that the material sued for was furnished to a contractor employed by defendants, and that such material was sold to be used, and was used in defendant’s house, sufficiently shows for whose use the material was sold. p. 515.</p> <p>3. Mechanics’ Liens.' — Statutes.—Construction.—Beal Property.— Mechanics’ lien statutes are construed according to the requirements of giving substantial justice; and such liens ordinarily, though not in Indiana (§8295 Burns 1908, Acts 1899, p. 569), are not permitted upon a building, except in connection with some interest in the real estate upon which such building is situated, p. 517.</p> <p>4. Same. — Foreclosure of. — Action.—A suit for the foreclosure of a mechanic’s lien is a proceeding in rem, the purpose of the mechanic’s lien statute (§8295 Burns 1908, Acts 1899, p. 569) being to give the laborer, or person furnishing material, a lien for such work or material upon the interest which the person had who ordered the work done. p. 517.</p> <p>5. Same. — Foreclosure.—Owner.—Tenant.—Where the owner of a lot placed a tenant in possession thereof for the purpose of erecting a house thereon, the person furnishing material therefor is' entitled to a lien upon the building as against the owner, as well as such tenant. Rabb, J., dissenting, and holding that the materialman has a right to a lien upon the lot also. p. 517.</p>

From Superior Court of Marion County (66,555); James M. Leathers, Judge. Action by Newton F. Holtsclaw against the Indianapolis Traction & Terminal Company and another. From a judgment on a verdict for plaintiff for $5,000, against such company, it appeals. (On motion to dismiss appeal, see 40 Ind. App. 311.)

<p>Prom Morgan Circuit Court; I. H. Fowler, Special Judge.</p> <p>Suit by Julius C. Kiefer against Catherine Dickson. Prom a decree for defendant, plaintiff appeals.</p>

<p>Prom Martin Circuit Court; Hiram, McCormick, Special Judge.</p> <p>Action by Walter Southern against Poster A. Pletcher and another. Prom a judgment for plaintiff, defendants appeal.</p>

Prom Dekalb Circuit Court; Emmet A. Bratton, Judge. Action by Mary C. Robbins, as administratrix of the estate of Theodore A. Robbins, deceased, against the Pt. Wayne Iron & Steel Company. Prom a judgment for defendant on the answers to the interrogatories notwithstanding a general verdict for plaintiff for $1,500, plaintiff appeals.

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed are waived, p. 566.</p> <p>2. Municipal Cobpokations. — Towns.—Grading Streets. — Obstructing Drains. — A town is liable for tbe negligent and unskilful grading of its streets in sucb manner as to obstruct tbe'flow of the waters collected thereon, and running in channels along the street, and the consequent overflow of same upon adjacent lots, p. 568.</p> <p>3. Same. — Streets.—Drains.—Obstructions.—Negligence.—The damming of the gutters along a street without providing any outlet for the water flowing therein, thus causing plaintiffs’ lots to be overflowed, constitutes negligence, p. 569.</p>

<p>1. Pleading. — Complaint.—Interurban Railroads. — Killing Children on Streets. — A complaint alleging that defendant interurban railroad company negligently ran its car, provided with a defective brake, at an excessive speed, in violation of a city ordinance, and without any warning, over plaintiff’s child six years old, when such child was in plain view for a quarter of a mile, causing the death of such child, states a cause of action, p. 572.</p> <p>2. Same. — Complaint.—Interurban Railroads. — Negligent Acts.— Joint or Several. — A complaint alleging that defendant interurban railroad company ran its car at an excessive speed, in violation of a city ordinance, and without warning, over a child in plain view for a quarter of a mile, and that the brake and vestibule of such car were defective, states several and not joint acts of negligence, the proof of any one of which entitles plaintiff to a verdict, p. 573.</p> <p>3. Same. — Complaint.•—Several Acts of Negligence Alleged in Same Paragraph. — Proof.—It is proper in an action based upon the commission of divers acts of negligence, to include all of them in one paragraph, and proof of one of such acts is sufficient, p. 573.</p> <p>4. Trial. — Instructions.—Several Acts of Negligence. — Proof of One. — An instruction that if plaintiff proves one of several acts of negligence alleged, and that such one, independent of the others, was the proximate cause of the injury, the plaintiff should recover, is correct, p. 573.</p> <p>5. Same. — Instructions.—Remarks of Court. — The criticism that the court told the jury that the several paragraphs of the complaint were substantially the same, is not well taken, where no such statement appears in any of the instructions, p. 574.</p> <p>6. Same. — Instructions.—Contributory Negligence. — Interrogatories. —Appeal.—An instruction stating that if defendant interurban railroad company committed the negligent acts alleged, and saying nothing of contributory negligence, the plaintiff should recover, is erroneous; but such error is not reversible, where the answers to the interrogatories show that plaintiff was not negligent. p. 574.</p> <p>7. Same —Instructions.—Burden of Proof. — Contributory Negligence. — An instruction, in a personal injury case, that the burden of establishing contributory negligence is on the defendant, is correct, p. 574.</p> <p>8. Same. — Instructions.—Applicability to Evidence. — Interurban Railroads. — Defective Brakes. — An instruction stating the duty of an interurban railroad company in providing brakes is not inapplicable to the evidence, where such evidence showed that the car ran 150 feet after the brake was applied, such fact being evidence of a defect, p. 575.</p> <p>9. Tbial. — Instructions.—Interur'ban Railroads. — Ringing Gongs Between Streets. — An instruction that if the motorman of an interurban car failed to sound his gong between the street crossings, such fact would not charge the company with negligence, is properly refused, p. 575.</p> <p>10. Same. — Instructions. — Interurban Railroads. — Operation of Gars Without Fenders. — An instruction that it does not constitute negligence for an interurban railroad company to run its cars without fenders, is properly refused. ’ p. 575.</p> <p>11. Interurban Railroads. — Killing Child on Street. — Negligence. —Contributory.—Where there was evidence showing that as a child six years old was crossing the interurban railroad track, the motorman of the approaching car, running at an excessive speed, his car having no fender and a defective brake, ran his car over such child, a verdict for plaintiff is justifiable, p. 576.</p> <p>12. Negligence. — Contributory.—Measure of Negligence in a Child. —Failing to anticipate the negligent operation of a street-car is not necessarily negligence in an adult, and the standard by which the conduct of a child is measured is not so high as that applied to the adult, p. 576.</p> <p>13. Damages. — Excessive.—Death of Child. — A verdict for $2,250 for the death of a child six years old, is not excessive, p. 576.</p>

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed in appellant’s brief, are waived, p, 577.</p> <p>2. Same.- — Briefs.—Alleging Errors.- — Specific rulings of 'the trial court must be set out as the foundation .of any question on appeal, p. 578.</p> <p>3. Same. — Excluding Evidence. — New Trial. — No question on the exclusion of evidence can be raised on appeal, unless such exclusion is set out as a reason for a new trial, p. 578.</p> <p>4. Appeal. — Recovery Too Large. — ATeto Trial. — Tbe amount of recovery can be questioned on appeal, only where made a reason for a new trial, p. 57S.</p> <p>5. Same. — Weighing Evidence — The Appellate Court will not weigh conflicting evidence, p. 579.</p> <p>O. Same. — Instructions.—Boto Questioned. — To raise any question on the instructions, on appeal,’ the appellant must set out the objectionable instructions, or the substance thereof, and point out the errors therein, p. 579.</p> <p>7. Conversion. — Measure of Damages. — Where defendant wrongfully converted plaintiff’s wheat to his own use, the .measure of damages is the value of the wheat at the time of the conversion, without any deduction on account of the labor bestowed upon it by defendant, p. 579.</p>

<p>1. Mobtgages. — Deeds.—Conditional Sales. — Repayment of Considerwtion. — The want of a covenant to repay the money received is not conclusive evidence that a conditional sale of the property conveyed was intended.. p. 583. -</p> <p>2. Same. — Satisfaction.-—-Deeds.-—Conditional Sales. — Evidence.— Whether a mortgage debt was extinguished by the satisfaction of record thereof, and the taking of a deed to the mortgaged premises, with a contract for reconveyance upon payment of the debt, is a question of the intention of the parties, which must be determined from a consideration of the entire transaction, p. 583.</p> <p>3. Mortgages. — Deeds.—Sales.—Evidence.—Where the evidence shows that the husband borrowed, from defendant, $425 for two years, the wife executing a mortgage on her land, worth $1,200, as security therefor, and that upon maturity of the note given, she executed, to the defendant, her warranty deed therefor taking a contract for a reconveyance upon payment thereof with interest and any taxes or other liens to which the grantee might be liable, such deed constitutes a mortgage, equity construing a writing as a mortgage, rather than a conditional sale. pp. 583, 585.</p> <p>4. Same. — Deeds.—Inadequacy of Consideration. — Inference.—The inadequacy of the consideration for a deed tends to raise an inference that such deed is in reality a mortgage, p. 584.</p> <p>5. Appeal. — Weighing Evidence: — The Appellate Court will not weigh conflicting evidence, p. 584.</p> <p>6. Mortgages. — Bents and Profits. — Owner of. — The mortgagor in possession of lands, is entitled to the rents and profits thereof, p. 585.</p>

Prom Marshall Circuit Court; Harry Bernetha, Judge. Objections by Mary E. Bentley to the confirmation of the appointment of Henry L. Jarrell, as administrator of the estate of Edward H-il-1, deceased. Prom a judgment overruling such objections, and confirming the' appointment, the objector appeals.

<p>Pro® Orange Circuit Court; Asa Elliott, Special Judge.</p> <p>Action by William E. Walker against the' Baltimore & Ohio Southwestern Railroa,d Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Clark Circuit Court; Harry C. Montgomery, Judge. Action by Lucy Abegglen, as administratrix of-the estate of Ulrich Abegglen, deceased, against the Baltimore & Ohio Southwestern Railroad Company. Prom a judgment on a verdict for plaintiff for $2,500, defendant appeals.

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Action by William IT. Richey, as administrator of the estate of Perry Lee Richey, deceased, against the' Indianapolis Traction & Terminal Company. Prom a judgment on a verdict for plaintiff for $2,500, defendant appeals.

Prom Boone Circuit Court; Samuel B. Artman, Judge. Action by Mattie M. Lowden against the Pennsylvania Company. Prom a judgment for defendant, notwithstanding a general verdict for plaintiff for $3,500, plaintiff appeals.

<p>■1. Pleading. — Answer.—Principal and Surety. — Release.—Change of Contract. — In an action, against a contractor’s. surety, by a company furnishing materials for use in the heating plant to be installed, an answer that such contractor and the owner, subsequently to the giving of the bond sued upon, agreed that such plant should be connected with another building, for which such contractor should receive extra compensation, is not sufficient, there being no change in the original contract, p. 623.</p> <p>2. Same. — Answer.—Principal and Surety. — Contracts.—Breach.— Release.• — In an action, by one furnishing materials, against the surety of a contractor whose contract provided that the owner should retain a certain per cent of the contract price until all claims were paid, an answer by such surety that' such owner . failed to retain such per cent is insufficient, as against the one so furnishing materials, to show a release because of a breach o! contract, pp. 624, 625.</p> <p>3. Contracts. —Building.—Sureties.—Materials.—Liability for.— Where a surety bond provides that the contract shall be duly performed and that the materials furnished shall be paid for, an action by one furnishing materials is independent of any right of the owner, and the breach of the contract by such owner does not affect such right, p. 624.</p> <p>4. Mechanics’ Liens. — Sehoolhouses.—A mechanic’s lien cannot be taken on a schoolhouse for the repair thereof, p. 625.</p> <p>5. Principad and Surety. — Contracts.—Breach.—Release.—Third Persons. — Where a bond is executed for the protection of third persons furnishing materials for a building, the owner’s or contractor’s breach of the contract cannot affect such person’s rights. p. 626.</p> <p>6. Same. — Contracts.—Payment of Attorneys’ Fees. — A provision that the surety shall pay the attorneys’ fees in case a recovery is had upon such surety’s undertaking, is valid and enforceable. p. 626.</p> <p>7. Interest. — Past Due Claims. — Building. Contracts. — Surety sMp. —A surety is liable for interest upon a delayed claim for the payment of materials furnished to the principal, p. 627.</p>

<p>From Lake Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by the Town of Lowell against Philip M. McNay. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Erroneous Ruling Precedent. — Transfer.—Where a ease appealed to the Appellate Court is governed by what is deemed an erroneous ruling precedent, the Appellate Court will transfer such case to the Supreme Court with a recommendation .to .overrule such precedent.</p>

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Application of Charles Sherwood to have reviewed the action of the mayor of the city of Evansville in revoking his license to.sell intoxicating liquors. From a judgment denying the application, he appeals.

<p>From St. Joseph Circuit Court; George Ford, Special Judge.</p> <p>Suit by Will N. Bergan against the Cooperative lee & Fuel Company and others. From a decree for defendants, plaintiff appeals.</p>

<p>Prom Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Suit by Mary M. Duzan and others against William Chappel and others. Prom a decree for defendants, plaintiffs appeal.</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Suit by George Kunz against Joseph K. Burkam and others. From a decree for plaintiff, defendants appeal.</p>

<p>From Marion Circuit Court (14,027) ; Henry Clay Allen, Judge.</p> <p>Action by the.Indiana Fuel Supply Company against the Indianapolis Basket Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Highways — Use of, for Automobiles. — The use of automobiles upon the streets and highways is lawful, p. 666.</p> <p>2. Negiigence. — Use of Automobiles. — Care.—The use- of automobiles upon the streets or highways is governed by the general rule that the driver or owner must so use same as not to injure others, p. 666.</p> <p>3. Highways— Automobiles. — Speed.—Statutes.—The speed and care required in the operation of automobiles are regulated by statute (§10465 Burns 1908, Acts 1907, p. 55S, §1). p. 066.</p> <p>4. Negiigence. — Use of Automobiles. — An automobilist who knowingly drives his machine past a frightened horse and thereby causes such horse to run away and to injure its driver, is liable for such injuries, p. 667.</p> <p>5. Tbial. — Allegations of Complaint. — Proof of. — In an action for damages caused by defendants’ negligence in the use of their automobile, it is not necessary for the proof to show that the automobile was as large as it was alleged to be,' substantial proof of the material allegations only being required, p. 668.</p> <p>6. Evidence. — Exclusion of. — Offer of Proof. — In order to present any question upon the exclusion of evidence, the complaining party must make an offer of the proof sought to be introduced, p. 60S. '</p> <p>7. Same. — Conclusion's.—Striking Out. — Harmless Error. — It is a harmless error, in an action for damages against an automobilist for frightening plaintiff’s horse and causing it to run away and to injure plaintiff, to strike out an answer showing that plaintiff had his horse “under control” when the automobile came alongside of the plaintiff’s buggy, where the witness afterward testified that at such time the plaintiff’s horse was “a little scared,” was “running like any other horse that was scared,” and that plaintiff was “holding the lines.” p. 66S.</p> <p>S. Tkial. — Instructions.—Harmless.—Interrogatories.—An instruction as to the liability of an automobilist for damages on the theory that he had time to slacken the speed of his machine after knowledge of the plaintiff’s danger, and did not do so, is harmless, where the answers to the interrogatories to the jury show that such automobilist increased his speed after such knowledge, p. 669.</p> <p>9. Same. — Instructions.—Invasion of Province of Ju/ry. — An instruction that if the jury “further find defendants’ driver .was far enough away to stop his” automobile and thus avoid injuring plaintiff, and he failed to do so, the plaintiff should recover, does not take the question of defendants’ negligence from the jury, where the jury had been propérly instructed that the burden of . proof was upon the plaintiff to establish the allegations of his complaint, p. 670.</p> <p>10. Same. — Instructions.—Contributory negligence in Use of Defective Harness. — An instruction omitting any mention of plaintiff’s contributory negligence in the use of his harness, is not misleading, where such instruction was conditioned upon the proof of other elements of the case stated in other instructions, and one of such other instructions stated the necessary care required of plaintiff in furnishing proper harness, p. 670.</p> <p>11. Same. — Instructions.—Automobiles.—Speed.—Care.—It is not erroneous for the trial court, in an automobile negligence case, to instruct as to the consideration to be given to the fact of speed, if found to be less than the statutory rate, where the instruction further outlines the duty of the automobilist to use proper care, under the circumstances, in passing plaintiff’s buggy, p. 670.</p> <p>12. Same. — Instructions.—Using Due Care. — An instruction, in an automobile negligence case, stating that if plaintiff was driving along the road and “using due care for his own safety,” is not bad for failing to define the meaning of “due care,” where other instructions were given defining negligence and contributory negligence, and the care required from plaintiff, p. 671.</p> <p>13. Trial. — Instructions.—How Considered. — Instructions must be considered as a- whole, p. 671.</p> <p>14. Same. — Instructions.—Automobiles.—Contributory Negligence. —Owe of Harness. — An instruction, in an automobile negligence case, relating to the tact, if found, that the tugs of plaintiff’s harness became detached from his buggy, is properly refused, where no reference was made as to plaintiff’s negligence in connection with their attachment thereto, p. 671.</p> <p>15. Same. — :Duplication of. — It is not erroneous to refuse to give an instruction already covered by instructions given, p. 672.</p>

Prom Hancock Circuit Court; Robert L. Mason, Judge. Petition by Alice Keeley to have Prank Keeley adjudged a person of unsound mind. Prom an order so adjudging, the prosecuting attorney appeals (see City of Indianapolis v. Keeley, 167 Ind. 516).

<p>Prom Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by Prank Bools against the Indianapolis & Eastern Railway Company. Prom a judgment for defendant, plaintiff appeals.</p>

Prom Miami Circuit Court; Robert J. Loveland, Special Judge. Action by Daniel C. Reynolds against the Wabash Railroad Company and another. Prom a judgment on a verdict for plaintiff for $1,500, defendant company appeals.

<p>From Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Suit by William W. Roe against the Windfall Natural Gas, Mining & Oil Company, and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>Prom Perry Circuit Court; Christopher W. Coolo, Judge.</p> <p>Suit by Isabella Cassidy against John Daniel Johnson and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>1. Appeal. — Briefs.—Where appellant’s brief sets out the substance of the questioned paragraph of complaint, and states that a demurrer thereto was overruled, the Appellate Court may, on appeal, consider the sufficiency of the facts stated in such paragraph. p. 703.</p> <p>2. Railroads. —• Detectives. — Authority. —• Inferences. — The mere fact that a railroad company employed a certain person as a detective does not imply that such person had authority to make arrests, p. 704.</p> <p>3. Pleading. — Complaint. — Railroads. — Detectives.—Authority to Arrest. — Agency.—A complaint alleging that defendant railroad company employed a detective and authorized him to arrest all persons who had stolen any of such company’s property; that said detective while so acting, and within the scope of his employment, and without a warrant or any authority at law, unlawfully assaulted and imprisoned plaintiff, sufficiently shows that such detective was acting as defendant’s agent in the commission of such acts. p. 704.'</p> <p>4. Appeal. — Briefs.—Evidence.—Where appellee supplies the evidence omitted from appellant’s brief, the sufficiency of the evidence will be considered, p. 705.</p> <p>5. Railroads. — Detectives.—Authority.—Question for Jury. — Assault. — False Imprisonment. — Where the evidence showed that defendant railroad company’s detective was ordered to investigate a supposed theft of money from one of its depots; that he suspected plaintiff of the crime, and arrested him, assaulted him, took him before a magistrate and had him committed to jail, releasing him a little later upon ascertaining that no theft had been committed, the question whether the company authorized such arrest was for the jury. pp. 705, 707.</p> <p>6. Trial. — General Verdict. — Effect.—Appeal.—A general verdict for plaintiff is a finding, in Ills favor, on all of the allegations of his complaint, and such verdict will not be disturbed, on appeal, where there is evidence from which an inference supporting such verdict may reasonably be drawn, p. 700.</p> <p>7. Words and Phrases. — ‘‘Detective.”—A “detective” is an officer whose duty it is to detect crimes and apprehend the criminals, ■p. 706.</p> <p>8. Criminal Law. — Felonies.—Arrest.—Process.—Damages.—Any person may arrest a felon without a warrant; but if he wrongfully arrests an innocent person, he is liable in an action for damages, p. 707.</p> <p>9. Trial. — Instructions.—False Imprisonment. — Bm'den of Proof.— An instruction, in an action for false imprisonment, that if plaintiff was imprisoned, the presumption is that it was illegal, and that the burden of showing it to be legal is upon defendant, is correct, p. 707.</p> <p>10. Appeal. — Instructions.—How Made Part of Record. — Instructions may be made a part of the record under §561 Bums 1908, Acts 1907, p. 652, or under §§558, cl. 6, 560 Burns 1908, §§533, 535 R. S. 1881, in which latter case the indorsement on the margin of the instruction excepted to must be dated, p. 708.</p> <p>11. Same.' — Briefs.—Instructions.—Where the questioned instruction is neither set out literally, nor in substance in the brief on appeal, it will not be considered. ,p. 708.</p> <p>12. Trial. — Instructions.—Misleading.—False Imprisonment. — An instruction, in a false imprisonment case, sustained by the Supreme Court decisions, and which correctly announces the legal effect of the arrest of an innocent person by a private individual without a warrant, cannot be held to be misleading, p. 708.</p> <p>13. Same. — Instructions.—Inapplicable to Evidence. — Railroads.— Detectives. — Authority to Arrest. — An instruction that a detective’s employment by defendant railroad company might be proven by circumstantial or direct evidence, and that the jury might consider the nature of the defendant’s business, its property, and money received in determining such question, is incorrect, but not reversible, where there was no evidence of such facts, p. 708.</p> <p>14. Same. — Instructions. — False Imprisonment. — Railroads.—Detectives. — An instruction that a railroad company may employ agents to procure the arrest and prosecution of persons stealing goods or money from such company, but if such agents in the course of the employment assault and imprison an innocent person, the company is liable, is not objectionable, p. 709.</p> <p>15. Same. —■ Instructions. — Railroads. — Detectives. —Authority.— Instructions, tendered, stating that unless the detective committing the arrest and falsely imprisoning plaintiff was authorized by defendant railroad company so to arrest and imprison, the company would not be liable, were correctly refused, p. 709.</p> <p>16. Appeal. — Mandate.—Death.—A mandate of affirmance will be modified, where it appears that the appellee died after submission and before affirmance. p. 710.</p>

<p>From Ripley Circuit Court; Willard New, Judge.</p> <p>Action by John Wuest against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From St. Joseph Circuit Court; Lucius Hubbard, Special Judge.</p> <p>Liquor remonstrance by James W. Kitch and others. From a judgment for remonstrators, Herman Greening and others appeal.</p>

From Marion Circuit Court; Henry Clay Allen, Judge.- Exceptions by Pearlie B. Hocke to the final report of Sylvanus Jackson, administrator of the estate of William A. Jackson, deceased. From a judgment against the administrator, he appeals.