Volume 43 — Indiana Appellate Court Reports

<p>1. Pleading. — Complaint.—Theory.—Title to Bank-Stock. — Notes. —Release.—A complaint alleging that defendant owed to the plaintiff a certain note and that he sold and delivered to the plaintiff in payment thereof certain shares of bank-stock, and claiming title to such stock, and the dividends thereon, is not based upon such note, and answers thereto, which do not deny the complaint, and which show the payment, release, satisfaction and discharge of such note by the defendant are bad. p. 3.</p> <p>2. Bankruptcy.- — Discharge.—Subsequent Contracts as to Debt.— Consideration. — A discharge in bankruptcy does not discharge a debt, and the bankrupt’s subsequent agreement to transfer certain stock to the creditor in consideration of a discharge of such debt, is supported by a valuable consideration, p. 4.</p> <p>3. Pleading. — Answer.—Bankruptcy.—Discharge by Agreement.— An answer, to a complaint claiming the ownership of certain shares of stock and the dividends thereon, alleging that the defendant owed to the plaintiff a certain note, that plaintiff agreed with defendant that if defendant would not publish plaintiff’s name as one of defendant’s creditors in bankruptcy, the plaintiff would discharge defendant from any obligation to pay the debt, is bad, since it is not responsive to the case. p. 4.</p> <p>4. Corporations. — • Stoclc.— Sale of. — Delivery.— Title. — Equitable. —Legal.—The sale and delivery of shares of stock, without a transfer thereof on the books of the corporation, vest the equitable, but not the legal, title thereto in the purchaser; and such purchaser has the right, as between himself and the vendor, to the dividends thereon. State, ex rel., v. First Nat. Bank, etc., 89 Ind. 302, criticised, p. 4.</p> <p>5. Pleading. — Answers.—Overruling Demurrer to. — Fuels Provable Under Another. — Error in overruling a demurrer to an insufficient affirmative paragraph of answer is not rendered harmless because the facts stated therein are provable under the general denial already pleaded, p. G.</p>

<p>From Orange Circuit Court; Thomas B. BuskirJe, Judge.</p> <p>Action by Robert A. Troth against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Marion County (67,803); James M. Leathers, Judge. Action by Henry Maag against the National Surety Company and another. From a judgment for plaintiff and certain others, said company and others appeal.

<p>From Benton Circuit Court; Joseph M. Babb, Judge.</p> <p>Action by Zephyr Cyr against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Starke Circuit Court; John G. Nye, Judge. Action by Viola Baker, as administratrix of the estate of Julius E. Baker, deceased, against Louisa Baker and others. From a judgment for plaintiff, a part of the defendants appeal.

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Action by Willard Hicks against the Morgantown Manufacturing Company. Prom a judgment on a verdict for plaintiff for $2,500, and from an order correcting the bill of exceptions filed, defendant appeals. (Por decision on merits, see — Ind. App. —.)

From Noble Circuit Court; Joseph W. Adair, Judge. Cross-complaint by Isaac Baugber against David Milbourn and others. From a decree for cross-complainant, defendant Milbourn and another appeal.

<p>1. Trial. — Instructions.—Others Explanatory. — Burden of Proof.- — ■ Notes. — Where the court instructed, in an action on a note, wherein affirmative defenses were pleaded, some of which placed the burden of proof upon the plaintiff, that the burden of proving the material averments contained in such answer was upon plaintiff “as stated in these instructions,” is not misleading, where the jury was later instructed as to the burden of proof as to each paragraph, p. 45.</p> <p>2. Trial. — Instructions.—As to Single Paragraph of Answer. — Misleading. — Notes.—-An instruction that the fourth paragraph of answer denies the transfer of the note in suit to the plaintiff, and that if a preponderance of the evidence shows that it was so transferred, the verdict should be for plaintiff for the amount due together with attorneys’ fees, is not misleading, where other instructions clearly stated the law as to the remainder of the case. p. 45.</p> <p>3. New Trial. — Excessive Recovery. — Notes.—Attorneys’ Fees.— Where the judgment on a note includes excessive amounts for attorneys’ fees, a remittitur, or in case of a failure thereof, a reversal will be ordered, p. 47.</p>

<p>1. Negligence. — Telegraphs and Telephones. — Using Same Poles.— Master and Servant. — Assumption of Rislc. — It does not constitute negligence per se for a telegraph company to string its wires on poles used by an electric light company; and a servant engaged in the repair of such telegraph company’s wires assumes the risks ordinarily incident to work in such circumstances, p. 51.</p> <p>2. Evidence. — Judicial Notice. — Electric Wires. — Dangers.—Courts take judicial notice that electric wires, on which there is no current, are not dangerous, p. 52.</p> <p>3. Master and Servant. — Assumption of Risk. — Repairing Telegraph Wires. — Charged Electric Light Wires. — Contributory Negligence. — Jury.—A servant in carrying, in the day time, a naked, grounded wire up a telegraph pole on which are strung telegraph and electric light wires, is not negligent, as a matter of law, for his failure to inspect such light wires to determine whether they are charged with electricity, nor does he, as a matter of law, assume such risk, both questions being for the jury. p. 53.</p> <p>4. Trial. — Instructions.—hwasion of Province of Jury. — Assumption of Risk. — Contributory Negligence. — An instruction that a servant engaged to repair telegraph wires, in carrying a naked, grounded wire up a telegraph pole on which were strung telegraph and electric light wires, one of which light wires, without any knowledge by such servant, was charged, to plaintiff’s damage, assumed the risk of injury from such cause and was also guilty of contributory negligence, invades the province of the jury, p. 56.</p> <p>5. Trial. — Instructions.—Dangerous and Safe Method of Perfwaving Work. — Contributory Negligence. — An instruction that if a servant, in repairing telegraph wires, carried a naked, grounded wire up a telegraph pole on which were strung telegraph and electric light wires one of which light wires was charged, to plaintiff’s damage, when he could have tested such wires without danger, he is guilty of contributory negligence, is bad, since the element of plaintiffs knowledge of the danger is omitted, p. 57.</p>

From Gibson Circuit Court; O. M. Welborn, Judge. Action by Jefferson C. Raley against the Evansville Gas & Electric Light Company. From a judgment for defendant, notwithstanding a general verdict for plaintiff for $3,000, plaintiff appeals. On motion to dismiss appeal. (For decision on merits, see — Ind. App. ■ — ■.)

Prom St. Joseph Circuit Court; Walter A. Funk, Judge. Action by William J. Slattery, as surviving partner of the firm of Edward Slattery & Son, against the School City of South Bend and others. Prom a judgment for. defendants, plaintiff appeals.

<p>1. Appeal. — Bills of Exceptions. — Time for Filing. — Statutes.— Courts have no power, except that given by statute, to grant time beyond the term for the filing of a bill of exceptions, p. 00.</p> <p>2. Appeal. — Bills of Exceptions. — Time for Filing. — Extensions.■— Where a judge granted time beyond the term for the filing of a bill of exceptions and such period expired without the filing thereof, the judge has no jurisdiction afterward, even by consent of the parties, to extend such time, the statute (§661 Burns 1908, Acts 1905, p. 45) requiring an application for extension of time within which to file a bill of exceptions, to be made “prior to the expiration of the time first given.” p. 06.</p> <p>3. Pleading. — Complaint.—Amendments to Conform to Proof. — Requirements of Motion. — Evidence.—A motion to amend the complaint to make it conform to the proof should state the reasons therefor, or a bill of exceptions should show the reasons given orally to the trial court, in the absence of which the Appellate Court cannot properly review the ruling thereon, p. 67.</p> <p>4. Pleading. — Amendments.—Written.—How Made Part of Record. —A motion to amend a complaint, under §662 Burns 1908, Acts 1903, p. 338, §2, must be made in writing, and is a part of the record with or without a bill of exceptions, p. 67.</p> <p>5. . Master and Servant. — Unsafe Ways, Worlcs and Machinery.— Negligence. — Accident.—A servant, to- recover against his master for negligence in maintaining unsafe machinery must prove some defect therein from which an injury might have been anticipated, and from which the injury proceeded, p. 68.</p> <p>6. Trial. — Instructions.—When Shown Harmless try Interrogatories to Jury. — Where the answers to the interrogatories to the jury show that the result on the facts could not have been different, error in giving instructions is harmless, p. 69.</p>

<p>Prom Henry Circuit Court; John M, Morris, Judge.</p> <p>Action by Prank Seeley against the Lake Erie & Western Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Anna A. Halan against the Supreme Lodge Knights of Honor. From a judgment for plaintiff, defendant appeals.</p>

<p>From Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Suit by Anna Rebecca Vert against Dora McNew and others. From a decree for plaintiff, defendants appeal.</p>

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

<p>1. Reformation. — Leases.—Subsequent Purchaser with Notice. — - Equity. — Equity courts have power to reform written leases, even as against a subsequent purchaser with notice, p. 96.</p> <p>2. Landlord and Tenant. — Holding Over. — Leases.—Options.— Where a lease provided: “This lease shall end and terminate on February 24, 1905, unless, upon the option of said I lessee], it shall be extended to February 24, 1912,” the mere holding over was sufficient notice to the lessor, and to his vendee, with notice, of an election to hold until 1912. p. 96.</p>

<p>1. Negligence. — Elements.—Complaint.—Actionable negligence consists of throe elements, (1) a duty from defendant to protect the plaintiff, (2) a violation of such duty by defendant, and (3) resulting injury to the plaintiff; and these elements must be shown in a complaint, by direct averments, p. 103.</p> <p>2. Pleading. — Complaint.—Municipal Corporations.- — Obstructions of Streets. — A complaint showing that the plaintiff, a traveler, was injured upon a street, sufficiently shows that such city owed him a duty to exercise ordinary care to keep its streets in a safe condition, p. 103.</p> <p>3. Municipal Corporations. — Streets.—Safety.—It is the duty of a city to keep its streets in a reasonably safe condition, p. 103.</p> <p>4. Pleading. — Complaint.—Municipal Corporations. — Streets.—Obstructions. — Lights.—A complaint alleging that defendant city negligently permitted a certain obstruction to remain in a certain street “without placing around, or at the- same, any safeguards, railing or lights,” shows, by direct averment, the want of lights at such obstruction, p. 103.</p> <p>¡5. Pleading. Complaint. Sufficiency. — A complaint, under §343 Burns 1908, §338 R, S. 1881, is sufficient if it states the facts constituting the cause of action in plain and concise language and “in such manner as to enable a person of common understanding to know what is intended.” p. 103.</p> <p>0. Words and Phrases.— “Without.” — Complaint.— The word “without” imports a positive negation; and an allegation that a dangerous obstruction was permitted “without” any lights, directly avers the absence of lights, p. 104.</p> <p>7. Pleading. — Complaint. — Municipal Corporatiofns. — Defective Streets. — Proximate Cause. — A complaint alleging that defendant city negligently permitted certain obstructions to remain, without signal, in a street, and that'plaintiff, at night, and “without being able to see” the same “by reason of the darkness,” drove against the same, frightening his horses and causing them to run away, to his injury, shows that the city’s negligence was the proximate cause of the injury, p. 104.</p> <p>8. Pleading. — Complaint.—Recitals.—An averment that the plaintiff was not able to see the obstruction in question “by reason of the darkness of the night,” does not show that the night was dark. p. 104.</p> <p>9. Pleading. — Complaint. — Municipal Corporations. — Defective Streets. — Darkness.—A complaint alleging that the plaintiff drove against an obstruction in the street at night, sufficiently shows that it was dark at the time. p. 105.</p> <p>10. Appeal. — Affirmance with Damages. — The Appellate Court has the right to assess damages in the affirmance of a case. p. 105.</p>

<p>1. Appeal. — GOnvplaint. —Paragraphs. — Overruling Demurrer.— When Harmless. — Interrogatories to Jury. — Where the interrogatories to the jury show that the verdict rests upon a certain paragraph of complaint, erroneous rulings as to the others will be considered harmless, p. 107. *</p> <p>2. Trial. — Interrogatories to Jury. — Purpose.—The office of an interrogatory to the jury is to disclose a single, primary fact within the issues, and not the ultimate fact involved in the case, inferences therefrom being for the court, p. 110.</p> <p>3. Trial. — Verdict.—Interrogatories.—Conflict.—Where the general verdict and answers to interrogatories to the jury are not in irreconcilable conflict, the general verdict controls, p. 110.</p> <p>4. Trial. — Verdict.—Interrogatories.—Conflict.—Conflicting interrogatories nullify each other, and do not control the general verdict. p. 110.</p> <p>5. Negligence. — Proximate Cause. — A wrongful act or omission constitutes actionable negligence when it is the proximate cause of plaintiff’s injury; and it is the proximate cause when an ordinary person should have foreseen some injury therefrom. p. 111.</p> <p>0. Negligence. — Question for Court. — Interrogatories to Jury.— Whether defendant was guilty of negligence must be determined from the facts, the facts only, and not the inferences therefrom, being proper subjects for interrogatories to the jury. p. 111.</p> <p>7. Trial. — Interrogatories.—Probable Conduct of Passenger an Street-Car. — Whether it was reasonably probable that a passenger upon a street-car would arise from her seat upon the conductor’s giving of a signal to stop, and whether, having so arisen, she would take a position which would be rendered perilous by the stopping of the car, are not proper subjects for interrogatories to the jury, facts only being proper, p. 111.</p> <p>8. Evidence. — Judicial Notice. — Whether Summer Cars are Open.— Courts take judicial notice that the ordinary summer street-cars are open, having no enclosing sides, with seats extending crosswise, and having no guard rail preventing easy egress and ingress. p. 112.</p> <p>9. Trial. — Complaint.—Verdict.—Interrogatories.—In considering the interrogatories to the jury the allegations in the complaint must be regarded as proved, where the general verdict is for the plaintiff, p. 112.</p> <p>10. Trial. — Interrogatories.—Place of Danger. — Street Railroads. —Whether a passenger occupied a place of danger on a street-car is not a proper subject for an interrogatory to the jury. p. 113.</p> <p>11. Street Railroads.— Sudden Stop.— Passengers.— Injury.— Where a passenger upon a street-car was being carried past her destination, and, upon signal, the conductor caused the car to come to a sudden stop, thereby throwing such passenger, who had just arisen preparatory to alighting, to her injury, the company is guilty of negligence, p. 113.</p> <p>12. Negligence. — When Question for Court. — Jury '. — Whore different inferences may reasonably be drawn from the facts alleged to constitute negligence the question is for the jury, otherwise for the court, p. 114.</p> <p>13. Trial. — Interrogatories.—Street Railroads. — Passengers.—Dangerous Place. — Judicial Notice. — An interrogatory and its answer showing that it was reasonably probable that a passenger . on an open street-car running twelve miles per hour, upon the giving of a signal to stop, would arise and take a position near the edge thereof, and that such position could not be considered as dangerous where the car was brought to a sudden stop, will not be permitted to control a general verdict for plaintiff, since the courts take judicial notice that 'such place would bo dangerous under the circumstances, p. 114.</p>

<p>From Fayette Circuit Court; George L. Gray, Judge.</p> <p>Action by Grace Kelso against Eliza Kelso. From a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (68,379) ; John L. McMaster, Judge.</p> <p>Action by The State of Indiana, on the relation of Elizabelli Dark, against James M. Mann and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Criminal Law. — Bail.—Fixing of, by General Order. — Estoppel to Question, by Surety. — A surety on a bond, in a criminal case, is estopped from questioning tlie validity of tlie bond on tlie ground that tbe order fixing the penalty thereof was a general court order made at a prior term of the court, where the bond was voluntarily executed and the penalty reasonable, p. 133.</p> <p>2. Trial. — Special Findings. — Evidentiary Facts. — Judgment.—Entries. — A special finding showing a nunc pro tunc entry of a judgment of forfeiture is not a finding merely of an evidentiary fact, p. 133.</p> <p>3. Pleading.— Complaint.— Amendments.— Appeal.— A complaint will be deemed amended on appeal, where it might have been amended below, p. 133.</p> <p>4. Pleading. — Complaint.—■Forfeiture of Bond. — Criminal Law.— A complaint setting out defendant surety’s bond, and alleging that it was executed to secure the release of a prisoner held on a felony charge, that the amount of the penalty thereof was fixed by the court, that the prisoner failed to appear for trial, and that a judgment of forfeiture was entered before the commencement of the action on the bond, is sufficient, p. 133.</p> <p>5. Criminal Law. — Bail.—Bonds.—A judgment for the full penalty of a bond in a criminal case is justifiable, where the prisoner failed to appear for trial, p. 134,</p>

<p>1. Pleading. — Complaint. — Municipal Corporations. — Defective Streets. — Injuries.—A complaint by a pedestrian alleging that defendant town constructed an open ditch in a certain street and loft it unguarded, that a culvert without guard-rails was erected across same, that the town negligently failed to light such place, that the plaintiff, without any knowledge of such condition, undertook to walk along such street in the night-time and fell into such ditch, to her injury, states a cause of action, p. 136.</p> <p>2. Pleading. — Complaint. — Municipal Corporations. — Defective Streets. — Adjacent Dangers. — The want of a sufficient railing or barrier to prevent travelers upon a street from running into some dangerous excavation or obstruction adjacent to the street and in the general direction thereof, may be described as a defect in the street itself, p. 140.</p> <p>8. Municipal Corporations. — Defective Streets. — Guard-Rails.— Whether a guard-rail is necessary for the protection of travelers along a street must be determined from all of the facts of the particular case, there being a duty on the part of the municipality to keep the streets, at all times, reasonably safe for travel in (he ordinary modes, p. 1-10.</p> <p>4. Municipal Corporations. — Guarding Dangerous Streets. — Negligence, — In the absence of negligence municipalities are not liable for a failure to construct barriers to prevent travelers from going outside of tlie line of the streets and thereby sustaining injuries, p. 141.</p> <p>5. Municipal Corporations. — Discretion ary Acts. — Lighting Streets. — Municipalities are not liable for their discretionary acts, such as lighting the streets, p, 141.</p> <p>6. Municipal Corporations. — Defective Streets. — Unanticipated Dangers. — Municipalities are not liable for a failure to guard defects in streets, where injuries therefrom could not reasonably be anticipated, p. 141.</p> <p>7. Municipal Corporations.— Streets.— Ditches.— Guarding.— A properly constructed ditch, twenty-two inches deep, cut for drainage purposes adjacent to a sidewalk, is not required to be covered its entire length, and is necessary although there might be nights when the streets would not be lighted, p. 142.</p> <p>8. Municipal Corporations. — Defective Streets. — Duty.—Accident. —Darkness.—Municipalities are not insurers of the safety of their streets; and where the defect is such that no prudent person would anticipate any danger therefrom, the question of liability is for the court, but where a traveler is forced out of the traveled way by some accident, to his injury, he can recover, darkness, however, not being such an accident, p. 143.</p> <p>0. Municipal Corporations. — Sidewalks.—Unguarded Ditch Adjacent. — Darkness.—Injury.—Where a town constructed a ditch twenty-two inches deep adjacent to a sidewalk, securely covering the same at street crossings, but leaving it uncovered between street crossings, it could not reasonably be anticipated that an elderly woman, on a dark night, would walk along such covered way thinking she was on the sidewalk, and fall over the end thereof into the ditch, to her injury, p. 143.</p>

<p>1. Accounts. — Stated.—Avoidance of. — Accounts stated presumptively settle the matters in controversy between the parties thereto,* but they may be impeached for fraud, illegality, or by showing clearly that contested items were unintentionally omitted therefrom, p. 146.</p> <p>2. Pleading.— Answer.— Account Stated.— Reply.— Statute of Frauds. — Contracts.—A reply of the statute of frauds can be pleaded to an answer of an account stated, the legality of such account stated being thereby questioned, p. 147.</p> <p>3. Tbial. — Instructions.—Principal and Agent. — Commissions.—Instructions that if the agent contracted to write insurance on a commission the jury should find for him if the insurance premiums had been paid in cash to the company, or if premiums had been paid in notes, and he had turned the notes over to the company, and it had collected same, are correct and do not proceed upon'two inconsistent theories, p. 147.</p> <p>4. Tbial. — Verdict.—When Beyond Control of Jury. — Until a verdict is returned into court, received, recorded and the jury discharged, such jury has control over its unsealed verdict, p. 149.</p> <p>5. Tbial. — Verdict.—Polling Jury. — Questions Permissible. — Where the court, on request by the cross-complainant for a polling of the jury, propounded the two questions, “Is this your verdict?” and “Are you still satisfied with the verdict?” whereupon one of the jurors expressed his dissatisfaction, and they were directed to retire for further deliberations, and afterward returned a different verdict, at which they all expressed satisfaction, reversible error is not shown, pp. 149,152.</p> <p>6. Trial. — Polling Jury. — The right of a party to demand a poll of the jury did not exist at the common law, but does by statute (§570 Burns 1908, §544 R. S. 1881). p. 150.</p> <p>7. Trial. — Polling Jury. — Purpose.—To poll a jury imports a questioning thereof to determine whether the verdict returned is satisfactory; and no form of questioning is prescribed therefor, p. 151.</p>

<p>Prom Posey Circuit Court; Walter 8. Jackson, Special Judge.</p> <p>Action by Albert Bailey against the Evansville Hoop & Stave Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals.</p>

<p>1. Municipal Corporations. — Street Improvement Contracts.— Time Limits. — Liquidated Damages. — Municipal corporations, in tlieir contracts for street improvements, may fix a time within which the work shall be completed, and may stipulate for liquidated damages in case of a violation thereof, p. 370.</p> <p>2. Evidence. — Judicial notice. — Seasons.—Time of Malcmg Street Improvements. — Courts take judicial notice of the seasons of the year and that street improvements are not made during the winter months, p. 172.</p> <p>3. Contracts.— Consideration.— Street Improvements.— Time for Completion. — An agreement by a contractor to make certain street improvements within a certain time is a sufficient consideration to support a contract for such street improvements, p. 172.</p> <p>4. Contracts. — Liquidated, Damages. — Waiver.—Municipal Corporations. — Where a contractor contracted with a city for the making of street improvements within a certain time, failing therein the contractor agreed “to pay and forfeit to the city” a certain sum, the payment of the assessments by the property owners, and the payment of a part of the cost assumed by such city do not waive the city’s claim for liquidated damages, p. 173.</p> <p>'5. Damages. — Liquidated.—Question for .Court. — Contracts.—The question whether certain damages specified in a contract are liquidated is for the court, p; 173.</p> <p>6. Damages. — Liquidated.—Failure to Complete Street. — Cities.— Contracts. — There is no definite standard of ascertaining the exact damages sustained by a city, the frontagers, and travelers, by reason of a contractor’s failure to complete street improvements within the contract period; and the parties have the right to stipulate in advance the amount of such damages, p. 174.</p> <p>7. Damages. — Liquidated.—Estoppel.—One contracting to pay liquidated damages in case of a breach of his contract is estopped from claiming that uo damages were sustained. p> 174.</p> <p>8. Words and Phrases. — “Forfeit."—Contracts.—The word “forfeit,” as used in a contract providing for damages in <j¡ase of a breach, ordinarily but not always imports a penalty, the true meaning being determined by the connection in which it is used, p. 174.</p> <p>0. Contracts. — Street Improvements. — Time of Completion. — Liquidated Damages. — Cities.—A contract requiring the contractor to complete certain street improvements “on or before October 1,” and “to forfeit to the city * * * as liquidated damages” a certain sum per day thereafter until completion, provides for liquidated damages, and not for a penalty, p. 175.</p>

<p>1. Tbial. — Instructions.—Railroads.—Street Grossings. — Care Required. — An instruction in a street crossing case that it was the duty of the railroad company “to give timely warning, of the approach of its locomotive and train of cars * * * to the plaintiff * * * whether or not there was a statute or ordinance requiring signals to be given at said street crossing, and any failure to exercise this care * * * was negligence,” is not erroneous as a general instruction, there being a subsequent specific instruction outlining the statutory duty of the company as to the sounding of its whistle and the ringing of its bell. p. 179.</p> <p>2. Railroads. — Street Grossings. — Signals.—Negligence.—Where a railroad company gives the statutory signals at a street crossing it has discharged its duty, and negligence cannot be imputed against it on account of any conditions which may render such signals inadequate, p. 180.</p> <p>•</p> <p>3. Trial.— Instructions.— Railroads.— Use of Streets.— Care. — An instruction that defendant railroad company has no exclusive rights in the street and that it must “so use and manage its trains as not to injure others who are lawfully using the street, and the running of trains at a high speed over the crossing, without * * * ringing a bell or sounding a whistle, will render the company liable if plaintiff was without fault,” is not erroneous. p. 180.</p> <p>4. Railroads. — Using Streets. — Statutory Signals. — Gare.—The giving of the statutory signals by a railroad company using the streets does not wholly absolve it from its duty to care for others using such streets, p. 180.</p> <p>5. Damages. — Special.—Railroads.—Gare and Medical Services.— Time. — Damages for care, medical expense and loss of time, caused by the negligence of a railroad company must be specially alleged and proved, p. 182.</p> <p>6. Damages. — Special.—Complaint.—Averments of. — Railroads.—A complaint averring that defendant railroad company negligently injured plaintiff causing him to be “unable to perform manual labor” and causing him “to hire a physician at great expense,” and further averring that his injuries are permanent, to his damage in a certain sum, covers special damages proved as to care and medical expense and loss of time. p. 183.</p> <p>7. Railroads. — Street Grossings. — Negligence. — Gontrih utory. — When Inferences for Jury. — The questions of negligence and contributory negligence on the part of a railroad company and Uh: driver of a buggy, the evidence showing that the driver stopped, alighted, looked and listened for a train, but neither saw nor heard any, that he drove upon the track, looking and listening, the company’s cars obstructing the vision, and was struck by a train, are for the jury. p. 184.</p> <p>8. Negligence. — Undisputed Facts — Diverse Inferences — Duties of Courts. — Where the facts in a negligence case are undisputed, and a jury and the trial judge have drawn therefrom the inference of defendant’s negligence, courts on appeal should be very reluctant to hold that only one inference — that of freedom from negligence — can be drawn by reasonable men. p. 185.</p> <p>0. Negligence. — Traveler at Railroad Crossing. — A traveler, upon ■ crossing a railroad track, must act with reasonable care, under the particular circumstances, to avoid injury, the sufficiency of such care being ordinarily a question for the jury. id. ISO.</p> <p>10. Negligence. — Traveler on Railroad Crossing. — Seeing and Hearing. — The presumption is that a traveler approaching a highway crossing saw and heard a train which was visible and audible, but the law does not prescribe the distance a traveler shall be from the crossing when he must look and listen, p. 180.</p> <p>11. Appeal. — Weighing Hvidence. — The Appellate Court cannot weigh conflicting evidence, p. 180.</p>

<p>From Randolph Circuit Court; Henry G. Fox, Special Judge.</p> <p>Suit by Ricliard II. Jones against the Erie Crawford Oil Company. From a decree for plaintiff, defendant appeals.</p>

<p>1. Apeeal. — Briefs.—Waiver.—Errors not discussed in appellant’s brief in the points and authorities are waived, p. 192.</p> <p>2. Appeal. — Assignments of Errors. — Exceptions to Conclusions of Laxo. — In order to question conclusions of law on appeal, a proper exception must be taken to each conclusion in the trial court, and error assigned thereon, p. 192.</p> <p>3. Appeal. — Assignments of Errors. — “Rendering Judgment for Appellee." — An assignment, on appeal, that the trial court erred in “rendering judgment in favor of appellee” presents no question, p. 193.</p> <p>4. Appeal.- — Bills of Exceptions. — Ilow Made Part of Recox'd.— Where a motion for a new trial was overruled and an exception taken on July 6, and six months’ time was granted on July 7, for filing bills of exceptions, and on' October 23, appellee's motion for judgment on the special findings was sustained and a decree entered, and on October 26, an apjpeal was prayed and granted and six months’ time granted in which to file bills of ex-ceirtions, a bill filed on the following January 23, is not in the record, since time must be asked upon taking the excexition at the overruling of the motion for a new trial (§656 Burns 1908, §626 R. S. 1881). p. 193.</p> <p>5. Taxation. — A’onresidents.—Rotos cmd Mox'lgages. — Where a citizen and resident of Arermont loaned money upon notes and mortgages in Indiana, keeping such notes and mortgages in Vermont, and making loans through axiplieations furnished by an Indiana attorney who was xiaid for his services, except for cancelations, by the axiplicant, such notes and mortgages are not taxable in Indiana, p. 195.</p>

<p>From Superior Court of Marion County (69,110); Vinson Carter, Judge.</p> <p>Action by Kate M. Fraser against William F. Churchman. From a judgment for part of the relief demanded, she appeals.</p>

From Marion Circuit Court (15,371); Henry Clay Allen, Judge. Action by George Yanthis, and others, as trustees of the Second Baptist Church of Indianapolis, against William Kemp and others. From a judgment for defendants, plaintiffs appeal.

<p>From Clinton Circuit Court; Joseph Glaybaugh, Judge.</p> <p>Cross-complaint by the Commonwealth Loan & Savings Association of Indiana against William II. AAUley. From a decree for cross-complainant, defendant appeals.</p>

<p>Injunction. — Trade Name. — Misrepresentations.—Fraud.—Where a medicine company seeks to restrain another company from using a similar name, thereby deceiving the^ public and injuring the plaintiff, and it is shown that plaintiff’s representations as to the curative properties of its medicine are misleading, dangerous and fraudulent, equity will deny any relief.</p>

<p>From Elkhart Circuit Court; James 8. Dodge, Judge.</p> <p>Suit by William P. Bacon against Ada L. Bacon. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Paragraphs.—Demurrer to Complamt. —A demurrer to a complaint consisting of two or more paragraphs should be overruled, where one paragraph is sufficient, p. 223.</p> <p>2. Pleading. — Complaint. — Paragraphs. —• Demurrers.— Special Findings. — Where the special findings show that the judgment rests upon the first paragraph of a complaint, errors in rulings on demurrers to other paragraphs are harmless, p. 223.</p> <p>3. Railroads. — Fights of Way. — Fences.—Construction.—Where a railroad company, having no fence enclosing its right of way, refuses, upon notice from an abutting landowner, to build one, such landowner, under §5448 Burns 1908, Acts 1885, p. 224, §2, has the right, after giving thirty days’ written notice to the company, to construct such fence and charge the cost thereof to the company, p. 223.</p> <p>4, Railroads. — Riyhts of Way. — Pencos.-—Por Whose Benefit. — -The purpose of laws requiring railroad companies to fence their rights of way is to safeguard passengers, p. 224.'</p> <p>5. Appeal . — Penalties.—The Appellate Court will impose a penalty upon the appellant in proper cases, p. 224.</p>

<p>. Prom Montgomery Circuit Court; Joseph Claybaugh, Special Judge.</p> <p>Suit by the Advisory Board of Coal Creek Township of Montgomery County and others against Peter Levandowsky and others. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>(Syllabus by the Court.)</p> <p>1. Action. — Consolidation of Causes. — Equity.—Equity will not grant relief because of a multiplicity of actions, where such actions may be consolidated ntJa.w. p. 232.</p> <p>2. "jÍotion. — Consolidation of Causes. — Inherent Potoers of Courts. —The courts — staJaitm-y snpetinn. may, in proper cases, consolidate actions at law, p. 232.</p> <p>3. Action. — Joinder of Plaintiffs. — Persons having separate causes of. action nomina* -Hio-gfinift person oannntl^iltirhs plainj-iffa. p. 232.</p> <p>4. Action. — Improper Joinder of Plaintiffs. — Demurrer.—Where plaintiffs join in one action, and the complaint fails to show: a iflint cause of action in favor of all, it will be bail on iinmnnw p. 233.</p> <p>5. Action. — Consolidation.—Federal. Statutes. — Discretion.-—Under §921 It. S. TJ. S. 1878, §921 U. S. Comp. St. 1901, the consolidation of similar actions regts in the discretion of the court, p. 233.</p> <p>6. Pleading. — Complaint.—PTCnyrwiftlsi—siiperfluous.—Equity.— A paragraph of complaint in a suit to restrain several defendants from prosecuting against plaintiff, separate actions at law foi damages, praying that if the court should be of the opinion that the deprivation of a jury trial would be unfair to defendants, the court should refer the questions of fact to a jury, is superfluous, the court possessing such right in every suit in equity, p. 233.</p> <p>7. Equity. — Multiplicity of Actions. — Bills of Peace. — Equity has jurisdiction to determine controversies arising out of a right claimed by one as against many, or by many as against the one. p. 234.</p> <p>8. Equity.- — Bills of Peace. — Classes—Bills of peace were used for two purposes (1) to prevent a vexatious recurrence of litigation by several persons asserting the same right, and (2) to prevent the reiteration of an unsuccessful claim, p. 234.</p> <p>9. Equity. — Multiplicity of Actions. — Jurisdiction.—Equity takes-jurisdiction on the ground of. the prevention of a multiplicity of actions, fit where the controversy is between but two persons and the plaintiff has established his right at law, and (2) where the persons controverting plaintiff's right are so numerous as Jo require injtmHlbh. "irsitñ ——</p> <p>10. Equity. — Multiplicity of Actions. — Jurisdiction.—Jurisdiction of a. .suit is assumed on the ground of the prevention of a multiplicity of actions only where the prevented successive actions^at law involve flip same questions of law and a similar state of facts, and where a decree would necessarily determjiie-the oonfr-oyAvtefl question as to all ofJhe-flefturdiwten. p. 235.</p> <p>11. Equity. — Multiplicity of Actions. — Community of Interest.— Commimitg: of interest in the joint parties is requisite in orrier to give a court of equity jurisdiction on the ground of n prevp-.ulJ.op of a multiplicity of actions: and such community of interostex’tsiVTTrriy'^vTierii some right common'TtriillVjShrtparties is in controversy, p. 241.</p> <p>12. Equity.— Multiplicity of Actions.— Continuing Injuries.— Equity has jurisdiction of a case wherein plaintiff desires jo restrain continuing injuries which would result in the bringing of several actions at law therefor, p. 243. “* “</p> <p>13. Equity. — Multiplicity of Actions. — Separate Causes. — Wliere the same person, is sued, or is. liable to be sued, bv several persons upon separate causes of action, equity cannot, interfere, p. 240.</p> <p>14. Equity. — Multiplicity of Actions. — Grounds for Relief Prom.— Courts of equity — will not entertain jurisdiction of a suit brought on the ground, .of a provantion-isE-n-^aiiltiplicity of netiop^-TrVeepf for the prom of ion., of justice the onnvt being roquieod-to-uarpretap a sound legal discretion in respect to the fn.oiE-af-o.qeii particular case. p. 240.</p> <p>15. Action. — Formalism.—Justice.—The purpose of litigation is to establish jusiice; and the courts are more and more disregarding formalism in determining the justice of the litigation, p. 249.</p> <p>16. Constitutional Law. — Right of Jury Trial. — Equity.—Where a plaintiff has a clear right to a jury trial, the courts are not disposed to deny such right, p. 249.</p> <p>17. Equity. — Jurisdiction.—Prevention of Costs. — Equity will not restrain tho bringing of several actions at law, merely on the grbuniLqf the prevention of oosüsl p. 250.</p> <p>18. Constitutional Law. — Jury Trial. — Equity.—The constitutional provision for a jury trial — §20, article 1 — applied only to common-law cases, the ver<jict of a jury in equity eases being merely advisory, p. 250.</p> <p>10. Constitutional Law. — Jury Trial. — Volite.—The liberty of the citizen is largely safeguarded by his right to a jury trial, p. 251.</p> <p>20. Equity. — Multiplicity of Actions. — Damages.—Where several persons are injured because of an alleged negligent act, they cannot be deprived of the right of a jury trial by the bringing of a suit by the alleged negligent person to restrain the bringing of separate actions on the ground that the alleged negligence did not exist, that the multiplicity of actions would be ruinous, and that such injured persons were insolvent, p. 254.</p> <p>21. Pleading.— Complaint.— Master and Servant.— Injunction.— Multiplicity of Actions. — Damages.—Avoidance of Jury Trial.— A complaint by a company to prevent its several servants who were injured by its alleged negligence from bringing separate actions for damages is not sufficient, if such suit were maintainable in any event, unless it completely negatives every possible liability to any one of the injured persons., p. 255.</p>

Prom Hancock Circuit Court; Edward W. Felt, Judge. Action by Frank M. Millikan against Lottie M. Trees, as administratrix of the estate of Cyrus E. Trees, deceased, and others. From a judgment for plaintiff, defendants appeal.

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Suit by John H. Rohsenberger against Otto A. Carlstedt. From a judgment for defendant, he appeals.</p>

<p>From Bartholomew Circuit Court; Marshall Hacker, Judge.</p> <p>Action by the City of Columbus against the Columbus Street Railway & Light Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Probate Court of Marion County (4,200); Merle N. A. Walker, Judge.</p> <p>Action by Cyrus J. Clark and another against Caroline Schindler and others. From a judgment for defendants, plaintiffs appeal.</p>

From Lagrange Circuit Court; James S. Dodge, Judge. Suit by Susan M. Ellison against John B. Flint and another. From a decree for plaintiff for a part of her prayer, she appeals.

<p>From Fayette Circuit Court; George L. Gray, Judge.</p> <p>Action by Martha ,T. Mullen against the Town of New Castle. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Nuisance. — Telephones.—Removal of, After Suit Filed. — Injunction. — Damages.—Where a suit is filed to compel a telephone company to remove a pole standing in front of plaintiff’s door, and for damages caused thereby, and after the filing of the suit such company removes such pole, the only question remaining is that of damages, p. 2S7.</p> <p>2. Pleading.— Complaint.— Nuisance. — Telephone Poles. — Particular Damage. — A complaint alleging that defendant maintained a telephone pole “in close proximity and directly in front of the main entrance of” plaintiff’s saloon, that the saloon stands on a street corner, that the door thereto opens upon such corner, and that such pole stands on the corner, sufficiently shows special damage and a nuisance to the plaintiff, pp. 288,289.</p> <p>3. Nuisance. — Telephones.—Appropriation.—Remedies.—Where a telephone company so maintains its poles as to constitute a private nuisance, the injured landowner is not restricted to the statutory remedy for the assessment of damages for lands appropriated to a public use. p. 288.</p> <p>4. Damages.— Permanent Injuries.— Nuisance. — Telephones.-—The placing of a telephone pole in such a position as to constitute a nuisance to the plaintiff, does not constitute a permanent injury to the land. p. 289.</p> <p>5. Eminent Domain. — Appropriation.—Assessment of Damages.— Remedies. — Where a public-service company appropriates plaintiff’s land to a public cause, plaintiff may maintain an action for damages, or may pursue the statutory remedy for an assessment of damages (§893 et seq. Burns 1901, §881 ei scq. It. S. 1881). p. 289.</p> <p>6. Pleading.— Complaint.— Inferences.— A complaint must state facts sufficient not only to suggest the inference desired, but to compel it. p.289.</p> <p>7. Pleading. — Complaint. — Allegations. — Recitals. — Averments that defendant maintains a pole at a certain place, and that the entrance to plaintiff’s saloon is in the southeast corner of a certain building, are direct allegations and not recitals, p. 289.</p> <p>8. Nuisance. — Private.—Damages.—Telephones.—-The placing of a large telephone pole directly in front of the door of plaintiff’s saloon, so as to interfere with his business, constitutes a particular damage which is not suffered by the community generally, p. 289,</p> <p>9. Pleading.— Complaint.— Injunction. — Damages.—Telephones.— Rights of Public. — Nuisance.—Where the purchaser of a lot erects a business house thereon, the door facing a large telephone pole, a complaint to compel the company to remove such pole and claiming no damages, is not bad because public rights had intervened or because the lot owner had not objected to the placing of such pole, or because of acquiescence in a nuisance, the limitation in such case being twenty years, p. 290.</p> <p>10. Vendor and Purchaser. — -Construction of Buildings. — Telephone Poles. — The purchaser of a lot, in front of which a telephone company had erected a pole, is not compelled to erect his buildings with reference to such pole, no rights having been acquired by such company by grant or limitation, p. 290.</p> <p>11. Pleading.— Answer.— Nuisance.— Telephones. — In a suit to compel the removal of a telephone pole standing in front of plaintiff’s door, an answer which fails to show that its location at that particular place was necessary to the operation of the system, is bad. p. 291.</p> <p>12. Telegraphs and Telephones. — Location of Poles. — Necessity.— Where a company removed a pole which constituted a nuisance to the plaintiff, it sufficiently appears that there was no public necessity for its location at that point, p. 291.</p> <p>13. Trial.— Verdict.— Interrogatories.— Conflict.— Where the answers to the interrogatories to the jury are not in irreconcilable conflict with the general verdict, it prevails, p. 291.</p> <p>14. Nuisance. — Telephone Poles. — A telephone pole standing directly in front of the door of a business house, twenty-three inches from the steps, constitutes a private nuisance, p. 291.</p> <p>15. Nuisance.— Special Damage.— Proof Without Allegations Thereof. — In an action for damages for a nuisance, proof of special damages is admissible without any special allegations thereof, p. 292.</p> <p>10. Evidence. — Exclusión.—Objections.—Changing on Appeal. — Objections to the admission of testimony cannot be urged, on appeal, unless they were presented in the trial court, p. 292.</p> <p>17. Evidence. — Exclusion.—Nuisance.—Telephone Poles. — Removal. —Effect on System. — The exclusion of evidence as to the effect upon the telephone system the removal of a certain pole would have, is not erroneous, whore such pole constituted a nuisance. • p. 292.</p> <p>18. Nuisance. — Removal.—Objections.—Evidence.—Evidence tending to show losses which would be caused by the removal of a nuisance is not admissible on behalf of defendant, p. 293.</p> <p>.19. Evidence. — Permission of City to Place Telephone Poles.— Nuisance. — Evidence of a franchise from the city to erect telephone poles in the streets, and that the city officers directed the location of such poles, is not admissible in an action by a lot owner to compel the removal of one which is a private nuisance to him. p. 293.</p> <p>20. Evidence. — Impeachment.—Interest.—It is proper to show, in impeachment, that a witness for defendant company, prior to the trial, said that he must catch a car because the company had a case and if he did not “side in” with the company he would lose his job. p. 294.</p> <p>21. Trial.— Instructions.— Nuisance.— Telephone Poles.— Instructions requested stating that a telephone pole directly in front of the door of a business house did not constitute a nuisance to the owner, were properly refused, p. 294.</p> <p>22. Trial. — Instructions.—When Shotcn to he Harmless by Interrogatories. — Nuisance.—Telephone Poles. — Damages.—Where instructions outlined the damages which might be caused by reason of the cross-arms and wires on a telephone pole, and for obstruction to the egress from, and ingress to the plaintiffs house caused by such pole, alleged errors therein are rendered harmless, where the answers to the interrogatories to the jury show that no damages were given therefor, p.294.</p> <p>23. Trial.— Instructions. — ■ Nuisance.— Definition.— Instructions that a nuisance consists of an annoyance, and signifies such a use of one’s property, or course of conduct as trangresses upon the just restrictions upon the use of property and the conduct of business which the law imposes, and that a private nuisance is one affecting a single individual, or a certain number of persons, in the enjoyment of some private right, are not erroneous, p. 295.</p> <p>24. Trial. — Instructions.—Nuisance.—Question for Jury. — An instruction submitting to the jury the question whether a telephone pole maintained in front of the door of a saloon constituted a nuisance, is proper, p. 295.</p> <p>25. Trial. — Instructions.—Nuisance.—Interference with Comfortable Enjoyment. — An instruction that because frontagers have no right of damages for the erection of a telephone pole in the street they are not prevented from recovering damages where the pole is so maintained “as to interfere with the comfortable and reasonable enjoyment of the premises,” is not erroneous, p. 296.</p> <p>26. Trial. — Instructions. — Cities. — Franchises. — Telephones. — Streets. — Sidewalks.—An instruction that neither the legislature, nor the common council of a city, has the right to authorize the substantial impairment of property or interfere with the beneficial enjoyment, thereof outside of that taken for streets, is not errone-</p> <p>. ous on the ground of excluding the city from the sidewalks, since streets include sidewalks, p. 296.</p> <p>27. Trial. — Instructions.—Special Damages. — Interrogatories Rendering Harmless. — Instructions as to special damages are rendered harmless, where the answers to the interrogatories to the jury show that no such damages were awarded, p. 297,</p> <p>28. Appeal. — Remittitur.—Juüyment.—AYhere the judgment is too large and the excess can be definitely determined, the judgment will be affirmed conditionally upon the filing of a remittitur for the excess, p. 207.</p>

<p>From Jefferson Circuit Court; Hiram Francisco, Judge.</p> <p>Action by The State of Indiana, on the relation of Grace Joyce, against Hugh S. Brown and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Descent and Distribution. — Widow with Children. — Read Property. — Subsequent Marriage of Widow. — Partition.—Judgment.— Where a husband died, leaving a widow and children, and the widow remarried and filed a suit for partition alleging that she was the owner of one-third of such real estate in fee simple, a decree in her favor that she was the owner of such part in fee simple and setting off such interest to her, does not estop such children, after her death during such subsequent marriage, from claiming title to such real estate under §3015 Burns 1908, §2484 R. S. 1881, casting the descent upon surviving children as to all lands received by a widow from her husband, where she remarries. p. 300.</p> <p>2. Descent and Distribution.— Remarrying Widow.— Childless Second Wife. — Title.-—Alienation.-—Under §3015 Burns 1908, §2484 R. S. 1881, a remarrying widow, there being living children by the former marriage, takes a fee-simple title, without the privilege of alienation, to one-third of the deceased husband’s real estate, but descent, as to such property, is cast upon her children by the marriage in virtue of which she received such real estate; and under §2487 R. S. 1881, a childless second wife, there being children of her husband surviving, took a fee-simple title, without the power of alienation, to one-tliird of her husband’s real estate, the same descending to his children at her death, p. 302.</p>

<p>1. Evidence. — Declarations of 'Secretary and Treasurer of Corporation. — Admissibility.—Res Gestae. — Declarations oí a secretary and treasurer of a corporation as to the receipt of payment for an account are not admissible against the corporation unless .shown to have been made during the transaction of the company’s business, relating to such account, or as part of the res gestae of tho transaction, p. 304.</p> <p>2. Appeal. — Rev? Trial. — Insufficient Evidence. — Where the only evidence supporting a decree was legally inadmissible, such decree will be reversed as unsupported, p. 3)05.</p>

<p>]. Appeal. — Term-Time.—Defective Bond. — Appearance.—Effect.— Where an appeal bond is defective or wanting, and the appellee liles a brief upon the merits, the appeal will not be dismissed, but will be considered a vacation appeal, p. 307.</p> <p>2. Appeal. — Bond.—Defects.—An appeal bond which omits the name of the surety in the body thereof, and which is not signed by the appellant, is sufficient, p. 307.</p> <p>3. Injunction. — Erection of Telephone Line Upon Plaintiffs Land. —Cessation After Suit. — Damages.—Where a telephone company threatened to stretch its wires over plaintiff's land, without right, but failed to do so, after suit was brought, the plaintiff has a right to an injunction and nominal damages, p. 309.</p> <p>4. Trial.— Evidence. — Variance.— Injunction.— Telephones.— AVhere a complaint alleged that defendant telephone company had stretched its wires, without right, over plaintiff’s land, and the proof showed that the poles were set, but the wires were not strung, there is no material variance, and an injunction was proper, p. 310.</p> <p>5. Telegraphs and Telephones. — Invading Private Lands. — Statutes. — Section 5790 Burns 190S, Acts 1903, p. 204, giving telephone companies, operating outside of cities and towns, the free use of the highways, and providing that they shall not obstruct ingress to nor egress from, any premises, does not authorize a company to invade private land for the purpose of stretching wires over it. p. 310.</p> <p>0. Evidence. — Intention.—Telephone Companies. — Injunction.—In a suit to restrain a telephone company from stretching its wires over plaintiff’s land, testimony by a director, of the intention of the company, unsupported by any acts of the company, was properly excluded, p. 310.</p> <p>7. Injunction. — Stretching Telephone Wires Over Plaintiff’s Land. —Evidence.—Inferences.—AVhere the evidence showed that defendant telephone company dug a hole in which to set a telephone pole, in such a position that the wires if strung thereon would necessarily pass over plaintiff’s land, and plaintiff’ filled the same, the defendant shortly after reopening same in the work of constructing its line, the court’s inference of a threatened invasion of plaintiff's rights is warranted, p. 312.</p> <p>8. Appeal. — Harmless Error. — Nominal Damages. — Questions concerning evidence of substantive damages will not be considered on appeal, where only nominal damages were awarded, and where plaintiff was entitled thereto, p. 312.</p>

<p>1. Trial, — Motion for Venire de Nodo. — Time for Making. — Judgment. — A motion for a venire do noro must be made before the vendition of judgment, p. 314.</p> <p>2. Trial. — Special Findings. — Omissions.—Venire de Novo. — Where the special findings omit facts material to plaintiff’s right of recovery, it must he held that the plaintiff has failed to prove same, and a motion for a venire de novo is not the proper procedure to reach the alleged defect, p. 334.</p> <p>3. Judgment. — lies Judicata. — Divorce.—A judgment in a divorce case concludes the parties thereto as to all matters litigable within the issues, p. 315.</p> <p>4. ' Divorce. — Parties.—State.—Duty of Courts. — The State is a proper third party to all divorce suits, and it is the duty of the court, of its own motion, to inquire in to all the facts, whether they are, or are not set out in the pleadings, p. 315.</p> <p>5. Divorce. — Duty of Courts. — Prosecuting Attorneys. — Statutes.— Although §§1050a-1050c ISurns 1901, Acts 1901, p. 330, provide for compensation for prosecuting attorneys for defending undefended divorce eases, the trial court has the inherent right to accept the services of any amicus curiae in defending such cases, or in informing the court of the facts, p. 310.</p>

<p>From Cass Circuit Court; Joseph M. Rabb, Special Judge.</p> <p>Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred to the Supreme Court. (Transferred to the Appellate Court. [See 172 Ind. 19.] Transferred again to Supreme Court. [See 44 Ind. App. —.] Transferred again to the Appellate Court. [See 172 Ind. 562.] Transferred again to the Supreme Court. [See 44 Ind. App. —.] For final decision, on appeal, see — Ind. —.)</p>

<p>From Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Action by Margaretha E. Nieman against Jacob Stevens. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Drains. — Assessments.—Notine.—Collateral A Hack. — Injunction. —A suit to enjoin the collection of a drainage assessment constitutes a collateral attack thereon and can be sustained only where the proceedings assailed are void; and a drainage assessment made without any notice to the interested landowner is. void. p. 320.</p> <p>2. Drains. — Invalidity.—Who Can Question. — An assessed landowner who has notice of a drainage proceeding, will not be permitted to complain of his assessment, on the ground that some oilier assessed person did not have notice thereof, p. 320.</p> <p>3. Drains.— Petitioners.— Dismissal.— Notice.— A drainage petitioner who dismisses the petition as to himself, is not thereafter entitled to notice in order to make valid the assessment made, in such proceeding, against his land, the statute (§5624 Burns 1905, Acts 1905, p. 456, §3) failing to provide for notice to the petitioners, p. 320.</p> <p>4. Pleading.— Complaint.— Allegations.— General.— Particular-Drains. — Notice.—Allegations that the plaintiff had no notice of a drainage assessment, the collection of which plaintiff sought to enjoin, are ineffectual, where the complaint further shows that Xilaintiff was one of the petitioners for such drain, but withdrew from the petition before the hearing thereon, p. 321.-</p>

<p>1. Insurance. — Suicide.—Provisions.—Where assured’s application for insurance provided that the insurer ‘‘shall not be responsible under this contract * * * if I should die * * * by suicide, whether sane or insane,” and assured’s certificate provided that no benefits would be paid in such case “except it be committed in delirium resulting from illness, or while * * * under treatment for Insanity, or [assured! lias been judicially declared to be insane; but in all cases not within said exceptions,” certain sums should be paid to the beneficiary, suicide constitutes a complete defense to the contract of insurance, p. 323.</p> <p>2. Insurance. — Suicide.—Incontestable Glauses. — Mutual Benefit Societies. — Change of Constitution. — Effect on Contract. — Where a mutual benefit certificate provided for non-liability in case of suicide, but assured’s certificate contained a provision rendering it incontestable after two years, except for fraud, the assured committing suicide five years after the granting of the certificate, his beneficiary is entitled to the insurance therein specified, although the society, after such certificate had thus become incontestable for suicide, enacted a by-law providing for ceretain partial payments in case of suicide, such by-law being invalid as impairing the obligation of assured’s contract, p. 324.</p>

<p>From Superior Court of Tippecanoe County; Henry II. Vinton, Judge.</p> <p>Action by Jane Vest against the City of LaFayette. From a judgment for plaintiff, defendant appeals.</p>

<p>From Marion Circuit Court (14,028) ; Henry Clay Allen, Judge.</p> <p>Action by Caleb Dalton against the Indianapolis Coal Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Oomplaint.—Possession.—Notice to Quit. — Lmidlord and Tenant. — A complaint for tbe possession of rented premises need not allege a demand for the rent due in order to determine the tenancy, where it alleges that by contract the rent was payable in advance, that a failure to pay the rent when due should terminate such tenancy without notice, and that, on such failure to pay, plaintiff should have the immediate right of possession, p. 338.</p> <p>2. Pleading. — Answer.—Sustaining Demurrer to Paragraphs of.— Pacts Provable Under Other Paragraphs. — It is not erroneous to sustain a demurrer to paragraphs of answer, where the facts therein alleged are provable under other paragraphs of answer, p. 339.</p> <p>3. Landlord and Tenant. — Payment of Bent. — Where a tenant agreed to pay his rent in advance on a certain day of each month, the landlord was under no obligation to call upon him more than once on such day; and if the tenant desired to pay at a later hour in the day, it was his duty to seek the landlord and make the payment, p. 389.</p>

<p>Appeal. — Time of Taking. — Decedents’ Estates. — Appeals from judgments in claims against decedents’ estates, except upon permission granted by the Supreme, or Appellate Court, must be perfected by filing an approved appeal bond witliin ten days after the judgment appealed from is rendered, and by filing the transcript on appeal within ninety days after the filing of such bond.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by The State of Indiana against Benjamin N. Lukins and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Contracts. — Customs.—Inferences.—Where two parties have been engaged for many years in the iron business, and have had extensive dealings with each other, the inference is that contracts executed by them were made with reference to the customs of such business, p. 346.</p> <p>2. Contracts. — Bales.—Manufactured Articles. — A contract for the sale and delivery of various articles of common manufacture by an iron manufacturing company does not require, but clearly contemplates the manufacture of such articles by the vendor, pp. 347, 354.</p> <p>3. Damages. — Measure.—Breach of Contract. — Actual compensation for the loss sustained is the proper measure of damages in case of a breach of contract, such damages covering only such loss as should reasonably bo expected by the parties to flow from a breach thereof, p. 348.</p> <p>4. Damages. — Breach of Contract. — Manufacturer.—Dealer.—The measure of damages, sustained by a manufacturer, for the breach of a contract with a dealer to furnish such dealer certain goods of its manufacture, is the 'difference between the manufacturer’s actual cost of manufacture and delivery, and the contract price. Roby, J., dissenting, p. 34S.</p> <p>5. Damages. — Breach of Contract. — Manufacturer.—Dealer.—The measure of damages sustained by a dealer, by reason of a manufacturer’s breach of contract to furnish certain articles to such dealer, is the difference between the contract price and the market price, p. 349.</p> <p>0. Damages. — Sale of Goods. — Breach of Contract. — The breach of a contract for the sale of goods in stock, by the vendor or purchaser, entitles the other party to damages, the measure thereof being the difference between the contract price and the market price, p. '349.</p> <p>7. Damages. — Breach of Contract. — Manufacturing Goods. — Where the purchaser repudiates his contract with a manufacturer, for certain goods to be manufactured, before such goods aro manufactured, the vendor is not required to manufacture the goods and take chances of securing a market for them. p. 349.</p> <p>8. Damages. — Speculative.—Cost of Manufacture. — Breach of Contract of Sale. — The fact that the actual cost of the manufacture of goods is difficult of exact ascertainment does not render speculative the damages to which the manufacturer is entitled — consisting of the difference between the manufacturer’s cost and the contract price — for the purchaser’s breach of contract, p. 354.</p> <p>9. Trial. — Instructions.—Cost of Manufacture. — Time of. — Sales.— In an action for damages for the breach of a contract by tbe purchaser for certain goods to ho manufactured upon its order, where the cost of manufacturing varies according to the time of manufacture, it is the duty of defendant to present instructions covering such question, general instructions having been given by the court, p. 355.</p> <p>10. Damages. — Breach of Con truck — Alternatives.—Where a party to a contract, having the alternative, violates such contract, in estimating damages, that alternative must be selected which is least injurious to such person having the alternative, p.355.</p> <p>11. Trial. — Instructions.—General.—Particular.—Duty of Party.— Where the court gives correct general instructions covering the subject, it is not reversible error that other proper instructions, not requested, were not given, p. 355.</p> <p>12. Aepeai.— Excessive Damages.— Weighing Evidence.— Where there is some evidence sustaining the damages given, the Appellate Court will not weigh the evidence on such question, p. 350.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Suit by George N. Higman against George A. Daly and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Pleading. — Demurrer to Complaint. — Filing of Amended Complaint.- — Effect.—Tho ruling upon a demurrer to a complaint presents no question, on appeal, where an amended complaint was subsequently filed, such original complaint thereby going out of the record, p. 360.</p> <p>2. Pleading. — Complaint.—Landlord and Tenant. — Iloldmg Over.— Tort. — Damages.—A complaint by a landlord against the tenant for damages for unlawfully holding over sounds in tort, and is sufficient, p. 361.</p> <p>3. Pleading. — Complaint.—Landlord and Tenant. — Ose and Occupancy. — Contracts.—A complaint by a landlord against the tenant i'or the use and occupancy of her premises is upon contract, and is sufficient, p. 3C1.</p> <p>4. Pleading. — Amendments.—Circuit Courts, on Appeal from Justices.- — -Appeal.—Circuit courts, in cases appealed from justices of the peace, have the same right to permit amendments which such justices had, and a right of review exists only for an abuse of discretion, p. 301.</p> <p>5. Pleading. — Complaint.—Amendments.—Changing Cause of Action on Appeal from Juslice of the Peace. — Landlord and Tenant. —On appeal from a justice of the peace, the circuit court should not permit the plaintiffs to amend their complaint from one in tort to one on contract, p. 361.</p> <p>6. Pleading.— Complaint. — Amendments.— Increasing Damages.— Landlord and Tenant. — Holding Over. — It is proper, where a landlord sued for possession and damages before a justice of the peace, the tenant subsequently vacating the promises, for the justice, or the circuit court, on appeal, to permit an amendment to Include the whole of the damages to the time of vacating the premises, p. 361.</p> <p>7. Apdeal. — Bight Result. — Landlord and Tenant. — Holding Over. —The wrongful refusal to strike out a paragraph of complaint, in an action by a landlord against the tenant for unlawfully holding over, is harmless, where the evidence fully sustains the other paragraph of complaint, pp. 362, 363.</p> <p>8. Landlord and Tenant. — Contracts.—Breach.—Payment of Beni. —Excuses.—Where a landlord agreed to execute a written lease to the tenant, and refused to do so, upon demand, such tenant may not lawfully hold possession of the premises without the payment of the stipulated rent, p.362.</p>

Prom Probate Court of Marion County; Merle N. A. Walker, Judge. Suit by James C. Curtis, as administrator de bonis non, with the will annexed, of the estate of Catherine Malone, deceased, against the Celtic Savings & Loan Association No. 3, and others. Prom a decree for plaintiff and another, defendant association appeals.

From tbe Clark Circuit Court; Barry C. Montgomery, Judge. Final report by Zachary Taylor, as administrator with the will annexed of the estate of Mary A. Taylor, deceased, to which Allen L. Taylor, as administrator de bonis non with the will annexed of the estate of Mary A. Taylor, deceased, files exceptions. From an order approving such report, exceptor appeals.

<p>1. Appeal. — Erroneous Ruling Precedent — Transfer.—Where a ruling precedent of the Supreme Court is deemed erroneous, it is the duty of the Appellate Court to transfer the pending case to such court with a recommendation to overrule such precedent, p. 376.</p> <p>2. Negligence.— Proximate Cause.— Maxims.— The doctrine of proximate cause is embodied in the maxim, “causa próxima non remota speclatur.” p. 376.</p> <p>8. Negligence.— l.’ny miniad (Joy wheels.- — ■ Slipping and Falling Into. — Where a servant slips, throwing his hand, in falling, into an unguarded cogwheel, the statute (§8020 Bums 1908, Acts 1899, p. 231, §9) requiring such cogwheel to he guarded, the proximate cause of the injury is the failure of the master to guard such cogwheel, proximate capse always having relation to the injury, p. 37G.</p> <p>4. Statutes. — Factory Act. — Purpose.—The object of section nine of the factory act (§8029 Burns 1908, Acts 1899, p. 231) was to compel factory owners to guard their dangerous machinery, and thereby save the employes from death or injury, p. 377.</p> <p>5. Statutes. — Factory Act. — nullification by Judicial Decision.— Under judicial decisions holding that under §8029 Burns 1908, Acts 1899, p. 231, §9, requiring dangerous machinery to be guarded, servants who stumble, slip or misjudge, are not protected thereby, and that persons who purposely get hurt thereby cannot recover, and that the absence of such required guard does not constitute a proximate cause of an injury received by reason of the failure to guard, such act is practically nullified, p. 377.</p> <p>6. Negligence. — Proximate Cause. — Substantial Rights. — Logic.— The law should not refine the doctrine of proximate cause to the point of denying substantial justice, the subtleties, disputations, and learning of the schoolmen not being applicable thereto, p. 378.</p>

<p>From Elkhart Circuit Court; James S. Bodge, Judge.</p> <p>Action*by John Swanson against the Workingmen’s Mutual Protective Association of Benton Harbor, Michigan. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Husband and Wife. — Alienation.—Parent and. Child. — Evidence. —Sufficiency.—Evidence, in an action by a wife 'against her father-in-law for alienation, showing that defendant advised plaintiff’s husband to stop pa5'ing life insurance, which he did, that defendant told plaintiff’s husband that she had been intimate with another, that he told her two children that she was a “lewd character,” “came from a low element,” and was “ignorant,” that he asked her husband to tell her lawyers that there was nothing in the case, that defendant wanted the husband and wife to go to school, the son refusing, and that defendant advised them to live on defendant’s farm, which the husband refused to do, and that the husband lived with the plaintiff after the bringing of the action, subsequently abandoning her, does not support a verdict for alienation, p. 383.</p> <p>2. Husband and Wife. — Alienation.—Action by Wife. — A wife may maintain an action for the alienation of her husband’s affections, p. 386.</p> <p>3. Husband and Wife. — Alienation.-—Parent and Child. — Malice.— In an action by a wife against her father-in-law or mother-in-law for the alienation of her husband’s affections, the defendant’s intent is the principal question, the presumption being that it is good. p. 386.</p> <p>4. Parent and Child. — Continuance of Relationship. — The relation of parent and child, and the correlative obligations thereof, do not cease upon the marriage of the child, the presumption being that the parents’ acts toward the child are for the good of the child, p. 386.</p>

From Boone Circuit Court; Joseph Glaybaugh, Special Judge. Action by The State of Indiana, on the relation of Robert J. Ferguson and others, against Jonathan J. Moore and others. From a judgment for plaintiff, defendants appeal.

<p>1. Highways. — Improvement of. — Expenses.—Liability of Cotmty for. — Statutes.—Under §6802 Burns 1905, Acts 1905, pp. 521, 557, §75, providing that “all expenses incurred” in the construction of improvements to highways shall be included in the sum for which bonds are issued for the payment pf such improvements, the fees of petitioners’ attorneys are not included, pp. 404,406.</p> <p>2. Counties.— Boards of Commissioners.— Higlmays.— Improvements. — Attorneys.—Boards of Commissioners are not obliged to act upon the advice of attorneys representing petitioners for highway improvements; and if such boards need legal advice, they should secure such for themselves, p. 405.</p> <p>3. Pleading.— Complaint.— Highways. — Attorneys.—Necessity for. —Conclusion.—A complaint alleging that a necessity existed on plaintiffs part to employ attorneys to prepare a petition for a highway improvement, and to conduct such cause before the board of commissioners, states a conclusion only. p. 406.</p> <p>4. Highways.— Eund for Constructing.— Claims Against.— Statutes. — A claimant asserting a right to receive payment from the fund created for the construction of highway improvements, must show a statute clearly authorizing such payment, p. 407.</p>

<p>1. Trial. — Instructions.—Given by Court. — Appeal.—On appeal, all instructions given by the court must be considered as given upon the court’s own motion, p. 408.</p> <p>2. Evidence. — Exclusion.—Offer of Proof. — Error can be shown in the exclusion of evidence only by making a proper offer of proof, thereby showing that the evidence offered is relevant to the issue and beneficial to the offerer, p. 409.</p> <p>9. Appeal. — Weighing Evidence. — Falling■ from Street-Oar. — Question for Jury. — The Appellate Court cannot weigh conflicting evidence as to whether plaintiff fell from the stopping of a streetcar, or its starting, such question being one of fact for the jury, p. 409.</p>

<p>From Clay Circuit Court; Ared F. White, Special Judge.</p> <p>Action by Benjamin H. ITendrix against the Chicago & Eastern Illinois Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed in part.</p>

From Jackson Circuit Court; John M. Lewis, Special Judge. Suit by Elijah Basey, as surviving partner of the firm of Cabell & Basey, against Howard McKinney and others. From a judgment for defendants, plaintiff appeals.

<p>Prom Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Suit by Jerome A. Gleason against Elizabeth Gleason. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Negativing Contributory Negligence.— Personal Property. — Damages.—In an action for damages to personal property, the plaintiff must allege directly, or by necessary implication, freedom from contributory negligence, p. 428.</p> <p>2. Pleading. — Complaint.—Negativing Contributory Negligence.— Failure to Look for Street Car. — A complaint against a street railroad company for damaging plaintiff’s carriage, and showing that plaintiff’s servant drove up the street and onto the track, but failing to allege that he looked for a car, is bad, since it fails completely to negative contributory negligence, p.428.</p> <p>3. Pleading. — Complaint.—Street Railroads. — “Last Clear Chance.” —A complaint alleging that plaintiff’s servant drove up a certain street and onto defendant street railroad company’s track, and that defendant ran its car against plaintiff’s carriage, to plaintiff's damage, fails to state a case under the rule of “last clear chance.” p. 429.</p> <p>4. Negligence. — Contributory.—Imputing.—Master and Servant.— Contributory negligence, of a servant in driving upon a street railroad track will be imputed to the master, where the action is for damages to the master’s carriage, p. 429.</p>

<p>Prom Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by Benjamin P. Noble, as administrator of the estate of Charles Cattell, deceased, against the Indianapolis Traction & Terminal Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading. — Complaint.—Recovery of Bank Stock. — A complaint alleging that plaintiff was the owner of certain shares of bank stock, that defendant wrongfully obtained possession thereof and procured the proper bank officers to reissue them in his name, and demanding same, together with the dividends collected thereon by defendant, states a cause of action, p. 432.</p> <p>2. Pleading. — Complaint.—Recovery of Bank Stock. — Description. —A complaint alleging that plaintiff was the owner of ten shares of bank stock which defendant wrongfully procured and had same reissued to himself, and demanding such stock, is sufficiently definite, p. 433.</p> <p>3. Pleading. — Complaint,—Demand.—A complaint which is sufficient for the recovery of certain bank stock, is not rendered bad for demanding certain dividends thereon, collected by defendant, where no demand therefor was alleged, p. 433.</p> <p>4. Evidence. — Sale of Bank Stock. — Declarations.—Acts.—In an action to recover ten shares of bank stock from a block of 300 shares claimed by defendant under a contract of sale by the plaintiff, evidence of the declarations of plaintiff’s agent to defendant regarding the sale of 290 shares, the written agreement by defendant with plaintiff’s agent, and plaintiff’s continued services as director in the bank, after such sale, there being ten remaining shares, the title to which was in dispute, is admissible. p. 434.</p> <p>5. Evidence. — Incompetent.—Harmless Error. — In an action for the recovery of bank stock, evidence, by the husband, that plaintiff, his wife, had not disposed of such stock subsequently to an alleged sale, by which defendant claimed title, is erroneous, but does not constitute reversible error, p. 435.</p> <p>(5. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, pp. 435,436.</p> <p>7. Judgment. — Failure 'to Move to Modify. — Complaint.—Demand. —Where a complaint for the recovery of stock and the dividends paid thereon, failed to allege a demand for the dividends, a failure to move to modify the judgment which included such dividends, waives the question on appeal, p. 435.</p> <p>8. Corporations. — Unauthorized Issue of Stock. — Rights of Holder. —The holder of stock reissued without any authority from the owner thereof, obtains no title thereto, p. 436.</p> <p>9. Pleading. — Insufficient Allegations. — Judgment. — Appeal. — - Where a complaint for the recovery of stock and the dividends paid thereon, fails to allege a demand, and no question thereon is made in the court below, it is too late, on appeal, to attack such judgment, p. 437.</p> <p>10. Pleading.— Complaint.— Initial Attach on Appeal.— A complaint attacked for the first time, on appeal, is sufficient, if it states facts sufficient to bar another action for the same cause, p. 437.</p>

<p>1. Evidence. — '“Cars.”—-Trade Meaning. — Contracts.—Where a contract called for ten “cars” of coal, evidence of the meaning of such word, by the custom of the coal trade, is admissible, p. 440.</p> <p>2. Trial.. — Oral Testimony. — Directing Verdict. — The court should not direct a verdict for the one having the burden of proof, where a part, or all, of the evidence is oral. p. 440.</p> <p>3. Evidence. — Varying Terms of Written Contracts. — Evidence is not ordinarily admissible to vary the terms of a written contract, p. 440.</p> <p>4. Trial. — Directing Verdict. — Whore the plaintiff’s evidence is sufficient to warrant a recovery, and the defendant’s evidence does not conflict therewith, the trial court may direct a verdict for the plaintiff, p. 440.</p> <p>5. Contracts. — Telegrams.—Letters.•—Evidence.—Where defendant telegraphed to plaintiff to “ship at once ten cars [of coal], mine run,” and the plaintiff telegraphed to the defendant that the coal would be shipped “in any equipment available,” following such message with a letter to defendant stating that such coal would be shipped “in any equipment available,” and with an acknowledgment stating that shipment would be made “in any equipment available. * * * If any error has been made in this order, as before stated, please advise us by return mail,” and no objection was made, the mode of shipment became a part of the contract, and defendant had no defense because of shipment in hopper-bottomed cars. p. 440.</p>

<p>From Dekalb Circuit Court; Emmei A. Braitan, Judge.</p> <p>Suit by Henry Fuesse against John F. Fuelling and others. From a decree for plaintiff, defendants appeal.</p>

<p>Prom Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Suit by Thomas P. Lloyd against Inez Arney. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Trial. — Interrogatories.—Conclusions.—Conclusions in interrogatories to the jury, and the answers thereto, cannot be considered, p. 455.</p> <p>2. Negligence.— Contributory. — ■ Municipal Corporations.-— Defective Streets. — Care.—Knowledge, by a traveler, of a defective street does not constitute him guilty of contributory negligence in the use of such street, but he must use care commensurate with the known danger, p. 455.</p> <p>3. Negligence. — Knowledge of Danger. — Volenti Non Fit Injuria.— One who voluntarily casts himself upon a known danger is guilty of contributory negligence, p. 455.</p> <p>4. Evidence. — Inferences.—Jury.—Courts.—It is the duty of tho jury and the trial judge to weigh the evidence, draw the proper inferences therefrom, and arrive at the justice of the case. p. 450.</p> <p>5. Appeal. — Weighing Evidence. — The Appellate Court will not disturb a judgment where there is some evidence to support it. p. 45G.</p> <p>G. Negligence.— Contributory.— When Matter of Law.— Jury. — ■ Where the facts are undisputed, and different inferences cannot be drawn, the question of contributory negligence is for the court, hilt the right of the jury to draw inferences should not lightly he denied, p. 45G.</p> <p>7. Negligence. — Defective Streets. — Care.—Question for Jury.-— Appeal. — Whether a traveler used care commensurate with the known danger of a defective street, is a question for the jury, and the verdict is conclusive on appeal, p. 457.</p> <p>8. Negligence.— Contributory.— Municipal Corporations. — Defective Streets. — Knowledge.—Where the answers to the interrogatories to the jury show that a traveler knew of a defect in a street and carefully tried to avoid same, hut was injured thereby, a general verdict in his favor is controlling, and he is entitled to judgment thereon, p. 457.</p>

<p>Prom Vigo Circuit Court; J ames E. Pieiy, Judge.</p> <p>Action by The Batesville Bank against Francis Lehner. From a judgment for defendant, plaintiff appeals,</p>

<p>Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by Charles Jenkins against the LaFayette Box Board and Paper Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Wells Circuit Court; O. W. Watkins, Judge.</p> <p>Suit by Edward Mossburg and another against the United Oil and Gas Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>From Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by the Town of New Castle against the Indianapolis & Eastern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Lake Superior Court; Charles W. Hanley, Special Judge.</p> <p>Action by Jennie E. Ethridge against the Supreme Tent, Knights of the Maccabees of the World. From a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (70,469); George F. Mull, Judge pro tem.</p> <p>Action by Wilford D. Appleton and others against Francis M. Helms. From a judgment for plaintiffs, defendant appeals.</p>

<p>Prom Harrison Circuit Court; Christopher W. Cook, Judge.</p> <p>Action by Caroline Gibboney against the Second National Bank of New Albany. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Richard C. Clark against the Board of Commissioners of the County of Clinton. From a judgment for plaintiff, defendant appeals.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Oda Buey against the American Sheet & Tin Plate Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.</p>

From Superior Court of Marion County (73,418); John L. McMaster, Judge. Action by Charles E. Norman, by his next friend, against J. Irving TIoleomb. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. On motion for a writ of certiorari. (For decision on merits, see — Ind. App. —.)

<p>From Martin Circuit Court; Tlileary Q. Houghton, Judge.</p> <p>Action by Orpheus 'M. Dickey against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading.— Complaint.— Contracts.— Performance.— Excuse.— In an action upon a contract the plaintiff must allege performance upon his part or an excuse for nonperformance, p. 510.</p> <p>2. Pleading.— Complaint.— Contracts. — Nonperformance.—Excuse. —Abandonment.—A complaint alleging that defendant contractors “abandoned” the contract sued upon, and that defendant sureties notified plaintiff not to pay any more money on such contract, sufficiently shows a repudiation, and excuses plaintiff’s failure to allege the performance of the provisions of such contract on his part. p. 510.</p> <p>3. Words and . Phrases. — “Abandonment.”—“Repudiation.”—The word “abandonment” imports the relinquishment of a right, and the word “repudiation” imports the renunciation of a duty. p. 510.</p> <p>4. Pleading. — Answers.—When Rulings on, Shown Harmless by Interrogatories. — Where the answers to the interrogatories to the jury show that plaintiff failed to prove the allegations of the complaint, thereby losing the case, erroneous rulings upon affirmative answers are harmless, the right result being reached, p. 517.</p> <p>■5. New Trial. — Instructions.—Appeal.—The giving of an erroneous instruction must be set out as a reason in the motion for a new trial, or it cannot be considered on appeal, p. 518.</p> <p>(i. Appeal. — Record.—Co-unterclaim.—Failure to Include. — Instructions Thereon. — Where an instruction related to a counterclaim, and such counterclaim was not made a part of the record, the correctness of the instruction cannot be determined on appeal, p. 518.</p> <p>7. Trial. — Instructions.—Sureties.—Unauthoriced Change of Com tract. — Discharge.—An instruction, in an action against sureties, that if the principals, without the knowledge or consent of such sureties, materially changed the terms of the contract, for a consideration, they would be discharged from liability, is not erroneous. p. 518.</p> <p>5. New Trial. — Instructions.- — -Joint Assignments. — Appeal.— Where the giving of two or more instructions is jointly assigned as a reason for a new trial, such assignment is not available, on appeal, unless all of such instructions are bad. p. 519.</p> <p>9. Appeal. — Briefs.—Waiver.—Points not discussed are waived, p. 519.</p>

<p>From Floyd. Circuit Court; William G. TJtz, Judge.</p> <p>Action by Charles E. Price and another against Samuel P. Walker. From a judgment for defendant, plaintiffs appeal.</p>

<p>Prom Clinton Circuit Court; James F. Elliott, Special Judge.</p> <p>Petition by John Unger against Jacob Mellinger, as executor of the will of Eliza Unger, deceased. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Julia A. Poorman against Albert Flowers, as administrator of tlie estate of George Flowers, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>From Hancock .Circuit Court; Robert L. Mason, Judge.</p> <p>Action by the Cas Belt Torpedo Company against Edward C. "Ward. From a judgment.for defendant, plaintiff appeals.</p>

From Hancock Circuit Court; Eobert L. Mason, Judge. Action by Frederick Myers against Sterling R. Holt. From a judgment for plaintiff for $150 on a verdict for $300, a remittitur having been filed for $150, defendant appeals. On motion to dismiss appeal. (For decision on merits, see — Ind. App. —.)

<p>From Dearborn Circuit Court; George E. Downey, J udge.</p> <p>Action, by Job Miller against the Cincinnati, Lawreneeburg & Aurora Electric Street Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Suit by Milton Wright and others against Ilalleck W. Floyd and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Prom Superior Court of Marion County (69,896); John L. McMaster, Judge.</p> <p>Action by, Mary A. Collins against the Catholic Order of Foresters. From a judgment for defendant, plaintiff appeals.</p>

From Tipton Circuit Court; J. F. Elliott, Judge. Action by Minnie C. Brown, as administratrix of the estate of William Cruse, deceased, against the American Steel and Wire Company. From a judgment for defendant, plaintiff appeals.

<p>1. Appeal.— Sufficiency of Complaint — Demurrer.— Form of.— Where a judgment was rendered for defendant on demurrers to the complaint and cross-complaints, against him, the sufficiency of such complaint and cross-complaints will determine the disposition of the case on appeal, regardless of the form of the demurrers. p. 57C.</p> <p>2. Decedents’ Estates.'— Final Settlement.— Want of Notice.— Judgment. — Fffcct.—Administrators.—The final settlement and discharge of an administrator, without giving a proper notice thereof, is, as to heirs or creditors not appearing, ineffectual for any purpose, p. 576.</p> <p>3. Executobs and Administbatobs. — Trust Funds. — Application of. —Trust funds coming into the possession of an administrator must be applied as the law provides, and no ex parte order of the court can deprive those legally entitled of their rights to such funds, p. 577.</p> <p>4. Pleading. — Complaint.—Setting Aside Pinal Report of Administrator. — Recovery of Trust Funds. — A complaint alleging that the defendant was an administrator and had collected as a trust fund a certain sum, that he had, without notice, made a final settlement which had been approved, and that he had never paid to the court or to the legal heirs the money due to them, but had retained it, states a cause of action, such settlement constituting no defense, p.577.</p>

<p>1. Principal and Agent. — Authority.—Termination of. — In a continuous transaction or negotiation tlie authority of an agent does not expire by the performance of a single act, however important, p. 584.</p> <p>2. Vendor and Purchaser.- — ■ Agents.— Shortage in Acreage.— “About." — Where a purchaser, by his agent, contracted with a vendor, for the conveyance of “about” 850 acres of land, the vendor refusing to warrant the acreage, such purchaser is bound thereby and cannot recover for a shortage in the number of acres conveyed, p. 584.</p> <p>3. Vendor and Purchaser. — Shortage m Acreage. — Question for Jury. — Whethev a certain tract of land contained the number of acres specified in the deed and contract of sale is a question for the jury. p. 584.</p> <p>4. Trial. — Instructions.—Recovery Upon “One or Both Paragraphs” of Complaint. — An instruction that “to entitle plaintiff to recover * * * he must establish * * * the material allegations of one or both paragraphs of the complaint, * * * and, if he has failed so to do, then your verdict should be for the defendants,” is not erroneous. Manion v. La-Ice Brie, etc., R. Co., 40 Ind. App. 569, distinguished, p. 584.</p> <p>5. Appeal. — Right Result.- — The judgment of the trial court will not be disturbed, where the right result was reached, p. 585.</p>

<p>1. Contracts. — Sales.—Real Estate. — Statute of Frauds. — A contract by children to transfer a life estate in their two-thirds interest in lands inherited from their father for a fee simple in their mother's share, subject to a life estate in her, is not one for partition, but for a conveyance of interests, and is within the statute of frauds, p. 58S.</p> <p>2. Contracts. — Real Property. — Part Performance. — Payment of Purchase Money. — Statute of Frauds. — Payment of the purchase money is not alone a'sufficient part performance of an oral contract for the sale of real estate to take it out of the statute of frauds, p. 588.</p> <p>3. Contracts. — Specific Performance. — Demand.—'To be a subject for specific performance, a contract must be mutual in obligations and remedies; and as to contracts for the conveyance of real estate, a demand therefor must be made before the commencement of the suit. p. 589.</p> <p>4. Vendor and Purchaser. — Contraéis.—Sales.—Tender.—Demand. —Specific Performance. — Where one contracts to purchase real estate and to pay therefor upon the execution of a deed, the . obligations are mutual, and the purchaser, upon tendering the money and demanding a deed, is entitled to maintain a suit for specific performance, p. 589.</p> <p>5. Vendor and Purchaser. — Contracts.—Specific Performance.— Demand. — When Unnecessary. — Where a vendor contracted to sell his land to plaintiff, but sold it to another, the plaintiff is not required to make a tender of the purchase money in order to maintain a suit for specific performance, a demand being useless, p. 589.</p> <p>G. Vendor and Purchaser. — Contracts.—Specific Performance.— Where children orally agreed with their mother to give to her a life estate in the huid inherited from their father, in exchange for the fee simple to her land so inherited, subject to a life estate in her, and she afterward conveyed her land, such children are not entitled to specific performance, but if they were, they should show a willingness to carry out the terms of their contract., pp. 590,593.</p> <p>7. New Triad. — As of Bight. — Beal Property. — Tille.—Complaint. —Paragraphs.—Where a paragraph of complaint under which a new trial as of right is demandable, is joined with another, under which a new trial is not demandable, and judgment is rendered on both, a new trial of the cause is not demandable. p. 590.</p> <p>S. New Trial. — Complaint.—Paragraphs.—Quieting Title. — Beformation. — Whore a complaint contained two paragraphs — one for quieting title, the other for reformation and for quieting title— a new trial is not demandable as a matter of right, p. 593.</p> <p>9. Pleading. — -Complaint.—Quieting Title. — A complaint to quiet title must show that defendant claims some interest in the land, adverse to plaintiff, which claim is unfounded and which is a cloud upon plaintiff’s title, p. 503.</p> <p>30. Partition. — Oral.—Statute of Frauds. — An oral contract by cotenants for partition, followed by the taking of exclusive possession of their several parts by such cotenants, is not within the statute of frauds, p. 594.</p> <p>31. Specific Performance.— Possession.— Statute of Frauds. — - Where a vendee sues for the specific performance of an oral contract for the sale of land, claiming that his possession is sufficient to take tlie contract out of the statute of frauds, lie must show a possession pursuant to sucli contract, p. 5!>5.</p>

<p>1. Pleading.— Complaint.— Allegations.- — Parties.—Representative Capacity. — A complaint whose caption is, “The State of Indiana, ex rel. Otis P. Crim, Auditor of Madison County v. * * and which begins, “The State of Indiana, on the relation of Otis P. Crim, as auditor of Madison county, complains,” etc., sufficiently shows that the relator was the auditor of Madison county, p. 597.</p> <p>2. Pleading. — Complaint.—Construction.—Where a complaint is neither indefinite nor ambiguous, the court will construe it liberally to the attainment of substantial justice, p. 598.</p> <p>3. Compromise and Settlement. — Impeachment. — Evidence.— Boards of Commissioners. — Treasurers.— Fraud.— Mistake. — An unimpeached settlement between the board of commissioners and a county treasurer constitutes pri-ma facie evidence that such treasurer has duly accounted for funds received, but a settlement shown to haye been made through fraud or mutual mistake is not binding, p. 599.</p> <p>4. Compromise and Settlement. — Officers. — Statutes. — Under §6086 Burns 1908, §5811 R. S. 1SS1, a settlement between the board of commissioners and a county treasurer is not conclusive, such statute being for the protection of the officer as well as the county, p. 599.</p> <p>5. Compromise and Settlement. — Officers.—Statutes.—Avoidance of Litigation. — Payment.—Under §6086 Burns 1908, §5811 R. S. 1881, a compromise entered into between a board of commissioners and a county treasurer, for the purpose of avoiding litigation, is not conclusive, payment being the only method of extinguishing the county’s right of action, p. 599.</p> <p>6. Arbitration and Award. — Submission.—Revocation of. — At the common law a party could revoke tlie submission to arbitration at any time before the award was made, the court having nothing to do therewith; but a statutory submission made and entered upon under an order of court, cannot be revoked without the consent of the court, p. 600.</p> <p>7. Arbitration and Award. — Irregularities.—Waiver.—Where arbitrators commit irregularities in the conduct of their work, a party knowing thereof and making no objection thereto waives his right to make objection thereto after the submission of their award, pp. 601, 603.</p> <p>8. Arbitration and Award. — Award by Majority. — Deliberations.— Waiver. — While the deliberations of arbitrators should be participated in by all, an award by a majority thereof is binding; but parties may waive such unanimity of participation by allowing the majority of the arbitrators to proceed, without mailing any objections thereto, p. 602.</p> <p>9. Arbitration and Award. — Invalidity.—Burden of Proof. — The burden of proving that an award is invalid is upon the party asserting same. p. 603.</p> <p>10. Arbitration and Award. — Invalidity.—IIow Shoum. — Evidence. —The invalidity of an award may be shown by affidavits, p. 003.</p> <p>11. Boards or Commissioners. — Allowances.—Effect.—Judgment.— An allowance by the board of commissioners to a county treasurer does not constitute a judicial determination of the rights of the parties, p. 604.</p> <p>12. Trial. — Opening Issites. — Answer.—The refusal to permit an opening of the issues for the filing of an answer which constitutes no defense to the action, is not erroneous, p. 604.</p>

<p>Prom Payette Circuit Court; George L. Gray, Judge.</p> <p>Action by Joseph W. Walker against The State of Indiana, on the relation of Pearl Laboyteaux. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Spencer Circuit Court; Boscoe Kiper, Judge.</p> <p>Petition by Zack Honisfager and another to which John T. Leonard answered. From a judgment for petitioners, Leonard appeals.</p>

<p>1. Appeal. — Weighing Evidence. — Where there is some evidence tending to prove every material allegation of plaintiffs complaint, the judgment of the trial court will not be disturbed, p. 611.</p> <p>2. Appeal. — Briefs.—Instructions.—A brief which sets out the questioned instructions given by the court, but not the additional ones given, does not properly present any question thereon, p. 612.</p> <p>3. Appeal.— Briefs.— Evidence.— References to Transcript.— In questioning the admission of testimony or its sufficiency, the brief should set out the page and line of the transcript where the same may be found, p. 612.</p>

<p>1. Appeal. — Precipe.—Omissions.—Mffect.—Where appellant’s i>reeipe called for particular parts of the record, but omitted the motion for a new trial, no question can be' raised thereon, although the clerk embodied a copy thereof in the transcript, p. 615.</p> <p>2. Appeal.- — GlerWs Certificate. — The clerk’s certificate gives verity to the record entries, and the inclusion of a copy of a paper or entry, which his certificate does npt cover, is unavailing, p. 616.</p>

<p>Pleading. — Answer.—Libel and Slander. — To a complaint alleging that defendant called the plaintiff a thief and said that the plaintiff “stole Ed O’Haver’s money,” an answer that plaintiff represented himself to be the deputy prosecuting attorney, and, as such, collected a fee from said OTIaver when he was not such deputy, and that the conversation in which such statement was made referred to, and was understood by all to refer to such unlawful taking of such fee, sufficiently shows that the crime of larceny was not imputed to plaintiff.</p>

<p>Prom Probate Court of Marion County (8,702) ; Schuyler A. Haas, Judge pro tem.</p> <p>Applications by William Cooper and John Cooper for letters of administration on the estate of John Ellis, deceased. From the appointment of John Cooper, William Cooper appeals.</p>

<p>From Clay Circuit Court; John M. Iiawley, Judge.</p> <p>Suit by Adaline Wise against Millard T. Wise. From a decree for plaintiff, defendant appeals.</p>

<p>1. Judgment. — Inconsistent Actions. — Estoppel.—A party cannot procure a judgment against one .party and then recover a judgment against another for the same matter, upon a wholly inconsistent or contradictory state of facts, p. 629.</p> <p>2. Judgment. — Former Adjudication. — A judgment rendered in a former action is, as to all matters which might properly have been litigated under the issues, conclusive in a subsequent action for the same cause, p. 631.</p> <p>3. Judgment. — Former Adjudication. — Debt.—Mechanics’ Liens.— A judgment rendered in a suit against the present defendant and another, the complaint asking for a judgment for work and labor against both, and for the foreclosure of a lien therefor against the present defendant, is conclusive against a subsequent action by such plaintiff against the present defendant for such work and labor, p. 631.</p>

<p>1. Pleading.. — Answer.—Special.—Possession of Beal Property.— Under statutes for the recovery of the possession of land, defendant may deny possession specially, p. 633.</p> <p>2. Trial.— Action for Possession.— Defense.— Evidence.— Possession. — Where defendant in an action for possession makes defense, the plaintiff need not prove defendant’s possession (§1102 Burns 1908, §1056 It. S. 1881). p. 633.</p> <p>3. Trial. — Withdrawing Case from Jury. — Judgment on Pleadings. —Possession.—Quiet Title. — In an action for possession, and for quieting title, the defendants answering specially that they disclaim title and deny having possession, it is not erroneous for the court to withdraw the case from the jury and to render judgment for plaintiff on the pleadings, p. 633.</p>

Prom Clinton Circuit Court; Joseph Claybaugh, Judge. Action by Sarah Reser, as executrix of the will of Harvey Reser, deceased, against the Farmers’ Mutual and others. From a judgment for plaintiff, defendants appeal.

<p>From Howard Superior Court; B. F. Harness, Judge pro tem.</p> <p>Action by Joseph Goff against the Kokomo Brass Works. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading.— Complaint.— Mines.— Failure to Furnish Props.— Notice. — A complaint alleging that the defendant coal mining company negligently failed to deliver to the plaintiff miner the necessary props for his room, that plaintiff requested the same by posting his requisition upon the blackboard and by sending notice orally through the driver, to plaintiff’s injury, is sufficient, an allegation that it was customary to notify defendant by sending word by the driver being unnecessary, p. G50.</p> <p>2. Mines. — Coal.—Props.—Notice of Need of. — Where a coal mine operator actually receives notice of a miner’s need of props for his room, such operator is liable for neglect in furnishing same, the means used in conveying the notice being immaterial, p. 051.</p> <p>3. Trial.— Variance.— Pleading.— Evidence.— Custom.— Mimes.— Props. — Notice.—Where a complaint alleges that the plaintiff coal miner notified the defendant operator by posting his requisition for props on the blackboard, and by sending word by the driver of such need, proof that notice by the driver was the customary way of giving notice, constitutes no variance, p. 652.</p> <p>4. Mines. — Falling Slate. — Place of Injury. — Evidence.-—Evidence by a coal miner that he had been drilling a hole and as he started to get up to go back down the entry the slate fell upon him, sufficiently shows that he was in a servant’s proper place when injured, p. 652.</p> <p>5. Mines. — Failure to Furnish Props. — Evidence.-—Evidence showing that a coal miner notified his company of his need of props on Saturday and again on Monday, that the boss visited his place but once during all the time he worked in the subentry, and did not then inspect the roof, that the use of props would have made the roof safe, that such miner inspected the roof but discovered no immediate danger, and that while at work the slate fell upon him, to his injury, supports a verdict for such miner, p. 652.</p>

<p>1. Municipal Corporations. — Streets.—Use of. — Railroads.—Teamsters. — The rights of an interurban railroad company and of drivers of vehicles to the use of the streets of a town are equal, ordinary care not to injure others being required of all. p. 655.</p> <p>2. Negligence. — Driving Down Gar Trades in Street. — Interurban Railroads. — It is not negligence, as a matter of law, to drive down the tracks of an interurban railroad company laid in the streets of a town. p. 656.</p> <p>3. Negligence.— Ordinary Care.— Jury.— Interurbam. Railroads.— Whether a huckster used ordinary care in driving down an interurban railroad company’s tracks in a street, after dark, is a question for the jury. p. 656.</p> <p>4. Witnesses. — Interest.—Contingent Fees. — Physicians.—A physician who testifies as an expert, and whose fee is contingent upon plaintiff's recovery, is interested; and it is proper to show such fact on cross-examination, p. 656.</p> <p>5. Trial.— Cross-Examination. — Discretion.—Witnesses.—Interest. —Appeal.—The latitude to be allowed on cross-examination in determining the interest, bias, or prejudice of a witness is largely discretionary with the trial judge, whose decision will be overthrown, on appeal, only for abuse of such discretion, p. G5G.</p> <p>6. Evidence. — Interest of Witness. — Exclusion.—Harmless Error. —The trial court’s refusal on cross-examination, to permit the showing of physician’s interest is harmless, where three other physicians testified substantially as he did, two of whom were appointed by the court to examine the plaintiff, p. 657.</p>

<p>1. Landlord and Tenant. — Lease for Saloon Business. — Contracts. • — Public Policy. — A five-year lease of premises to be used for saloon purposes is not void as being contrary to public policy, p. 659.</p> <p>2. Contracts. — Subsequent Impossible Performance. — Subsequent Change of Law. — Discharge.—The promisor in a contract is not discharged because of the subsequent impossibility of performance thereof, except where such impossibility is occasioned by a change of the law making such performance unlawful, p. 659.</p> <p>3. Landlord and Tenant. — Lease for Saloon. — Denial of License.— The denial of a license to retail intoxicating liquors, by the board of commissioners, to a tenant, does not discharge him from the terms of an absolute five-year lease to the premises, p. 659.</p> <p>4. Landlord and Tenant. — Leases for Five Years. — Discharge hy Oral Contract. — A written lease for five years cannot be discharged,' changed, or modified by a subsequent parol agreement. p. 660.</p>

<p>1. Pleading.— Oomplamt.— Nuisance.— Negligence.— A complaint alleging that defendant company owned certain oil-wells, that it caused crude oil and salt water to flow over plaintiff’s land, injuring the land and crops, destroying the well, and emitting noisome odors, to plaintiff’s damage, is grounded upon the maintenance of a nuisance, and not upon negligence, p. 603.</p> <p>2. Pleading. — Answer.—Nuisance.—Negligence.—To a complaint for a nuisance for running crude oil and salt water over plaintiff’s land, to her damage, an answer that the running of such oil and water was necessary for the defendant’s enjoyment of its property, that defendant was not actuated by malice, and that defendant used due care to avoid any injury to the plaintiff, is sufficient, p. 663.</p> <p>3. Nuisance. — Operation of Oil-Wells. — Reasonable Use of Premises. — Question for Jury. — Whether defendant’s use of its property in operating an oil-well and discharging salt water and crude oil upon plaintiff’s land, to her damage, was reasonable, is a question for the jury. p. 664.</p> <p>4. Appeal. — Weighing Evidence. — The Appellate Court cannot weigh conflicting evidence, p. 664.</p>

<p>From Knox Circuit Court; Orlando H. Cobb, Judge.</p> <p>Action by John Adams against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Final Judgment. — Setting Aside Award of Arbitrators.— No appeal lies from a judgment setting aside an award made by arbitrators, there being no final judgment.</p>

<p>1. Judgment.— Res Judicata.— Issues. — Equity.—Law.—A decree in equity is res judicata in a subsequent action at law, where the merits of the action at law were determined in the suit in equity, p. 671.</p> <p>2. Judgment. — Res Judicata. — All matters litigable within the issues in the former action are res judicata in a subsequent action, p. 671.</p>

<p>Prom Bartholomew Circuit Court; Marshall Hacker, Judge.</p> <p>Suit by John H. Kamman, as guardian of Mary A. Uland, an insane person, against the D’Heur'& Swain Lumber Company. From a judgment denying the petition of John H. Kamman, as administrator of the estate of Mary A. Uland, deceased, to be substituted as plaintiff, he appeals.</p>

<p>1. Descent and Distribution. — Advancements.—Voluntary Conveyances. — Presumptions.—Burden of Proof. — A voluntary conveyance from a father to his child is presumed to constitute an advancement, and the burden to show that it was not so intended is upon the child, p. 677.</p> <p>2. Deeds.— Voluntary.— Consideration.— Presumptions. — A voluntary conveyance is one made without any consideration; and where a consideration is named in a deed, the presumption is that such consideration passed, p. 678.</p> <p>3. Deeds. — Consideration.—Family Settlements. — -Evidence.—Deeds executed at about the same time by a father to three of his children, naming a money consideration, such sons executing to the father mortgages for a part of such consideration, do not constitute presumptive evidence of a family settlement; and where the evidence as to the voluntary character of the deeds is conflicting the trial court’s decision is final, p. 678.</p> <p>4. Evidence. — Declarations of Grantor After Execution of Deeds.— Declarations of a father that certain deeds executed to three of his children constituted advancements or gifts, made ten days after the execution of the deeds, are incompetent, p. 678.</p> <p>5. Witnesses— Competency. — Heirs.—Record BooJcs. — In an action between heirs, affecting the property .of decedent, one of such heirs is incompetent, under §522 Burns 1908, §499 R. S. 1881, to testify that a certain book was a family record book in which decedent recorded transactions in the way of transfers or gifts of property to his children, p. 678.</p> <p>6. Witnesses.' — Competency.—Heirs.—Hand-ioriting of Decedent. —In an action between heirs, affecting decedent’s estate, one of such heirs is competent to identify the decedent’s hand-writing, such fact being open to all, but such heir is incompetent to testify that she saw the decedent write or that she heard his declarations. p. 679.</p> <p>7. Appeal.— Evidence.— Exclusion. — Witnesses.—Heirs.—Statutes. —Exception.—Where testimony of an heir, in an action affecting the property of decedent, is wrongfully excluded on the ground that such heir was not a competent witness (§522 Burns 1908, §499 R. S. 1881), the appellant must, by the record on appeal, plainly show that the testimony came within an exception to the statutory rule, p.679. *</p> <p>8. New Trial. — Newly-Discovered Evidence. — Subsequent Declarations of Parties. — The declarations of parties, made subsequent to the trial, may be a ground for a new trial because of newly-discovered evidence. Stanley v. Peeples, 13 Ind. 232, disapproved. p. 680.</p> <p>9. New Trial. — Newly-Discovered Evidence. — Diligence.—Admissions of Parties. — Where an affidavit showing newly-discovered evidence is filed in support of a motion for a new trial, and there is no showing of any diligence in seeking direct proof of the issue, but merely a showing that evidence of certain admissions by the prevailing parties has been discovered, the proper diligence is not shown, p. 680.</p> <p>10. New Trial.' — Newly-Discovered Evidence.— Affidavits. — Conflict. — Appeal.—Where affidavits in support of, and in opposition to, the granting of a new trial because of newly-discovered evidence, are conflicting, the decision of the trial court thereon is binding on appeal, p. 681.</p>

<p>1. Contracts. — Statute of Frauds. — Real Estate. — Imperfect Description. — Evidence.-—A contract for the sale of real estate which contains such a description thereof as, aided by extrinsic evidence, is sufficient to enable one to identify the land, is not within the statute of frauds, p. 683.</p> <p>2. Contracts: — Sales of Real Estate. — Description.—Statute of Frauds. — A contract by which defendant agreed to pay to plaintiff $300 for a quitclaim deed to “the Casey farm, to be sold on a vendí sale April 22, 1905, at Knox,” is within the statute of frauds, there being no description of the land. p. 683.</p>

<p>1. Decedents’ Estates. — Final Settlement. — Pending Claims.— Under §2906 Burns 1908, Acts 1883, p. 151, §19, the accounting which an administrator is required to make at the end of one year from the issuing of letters and notice thereof is not necessarily final, and a final settlement of a decedent’s estate cannot be made, while there are properly filed and unallowed claims pending against same. p. 686.</p> <p>2. Decedents’ Estates. — Claims.—Time of Filing. — Statutes.-— Under §2828 Burns 1908, Acts 1883, p. 151, §5, one year, and under certain circumstances a longer time, is allowed from the time of the appointment of an administrator and the publication of notice thereof, within which to file claims against the estate, p. 687.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Suit by John Garretson and another against James S. Garretson. From a decree for plaintiffs, defendant appeals.</p>

Prom Superior Court of Allen County; O. N. Heaton, Judge. Action by Alice M. Racine, as administratrix of the estate of Claude H. Racine, deceased, against the Paul Manufacturing Company. Prom a judgment on a verdict for plaintiff for $600, defendant appeals.

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by John T. Anderson against Darius Nesbitt. From a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Joseph Linton against the Louisville, Henderson & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.</p>

<p>From Superior Court of Marion County (71,109) ; James M. Leathers, Judge.</p> <p>Action by Anna M. Miller against tbe Indianapolis Traction and Terminal Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Controlling and Subsidiary Matters.- — -The courts, on appeal, may disregard subsidiary matters of procedure, where the controlling question requires an affirmance of the judgment, p. 726.</p> <p>2. Wills. — Trusts.—Charge Upon Lands. — A will devising and bequeathing all of testator’s real and personal estate to his widow and further providing: “My will is that my beloved wife pay to [appellee], an adopted daughter, the sum of $500 when she arrives at the age of twenty-one years old, providing she [appellee], is good and kind to my wife, as a daughter should be, and if not obedient, my will is that she shall not receive the $500 herein named,” creates a continuing trust in favor of appellee, which is a charge upon the real estate devised, and subject to be defeated by her improper conduct, p. 726.</p> <p>3. Wills. — Legacies.—Directions to Devisee, or Executor to Pay.-— A will bequeathing a legacy and directing it to be paid by the devisee, or executor who is a devisee, constitutes such legacy a charge upon the real estate, p. 729.</p> <p>4. Contracts. — Acceptance of Devise. — Payment of Legacy. — A devisee accepting a devise charged with the payment of a legacy, becomes personally liable for the payment thereof regardless of the value of the devise, p. 729.</p> <p>5. Wills. — Construction.—Intention.—The intention of the testator is the object which should be attained in the construction of a willand to determine such intention all the words used, together with the relations of the parties, should be considered, p. 729.</p> <p>6. Limitation oe Actions. — Legacy.—Contract of Devisee to Pay. —A contract by a devisee to pay a legacy which was a charge upon the devisee’s land, is governed by the fifteen-year statute of limitations (§296 Burns 1908, §294 R. S. 1881). Rabb and Myers, JJ., dissenting, p. 730, 733.</p> <p>7. Wills. — Trusts.—Continuing.—Legacies.—Charge Upon Land.— Limitation of Actions. — A devisee accepting real estate charged with the payment of a legacy, takes it subject to a continuing trust against which the statute of limitations does not begin to run until after a demand is made and refusal given. Rabb and Myers, J.T., dissenting, p. 730.</p>

<p>Prom Owen Circuit Court; Joseph W. Williams, Judge.</p> <p>Suit by Mary E. Truelove and others against Emeline Truelove and others. Prom a decree entered, plaintiffs appeal.</p>

<p>Prom Dearborn Circuit Court; George B. Downey, Judge.</p> <p>Action by Lawrence Swango, by next friend, Cornelius Swango, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff for $500, defendant appeals.</p>

<p>From Wells Circuit Court; Edwin G. Vaughn, Judge.</p> <p>Action by S. Walter Smith against the Ohio Oil Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by The State of Indiana against Harry A. Axtell. From a judgment for plaintiff, defendant appeals.</p> <p> Affirmed. </p>

<p>From Laporte Superior Court; Charles B. Truesdell, Special Judge.</p> <p>Action by the Warren-Scharf Asphalt Paving Company against Amelia Leeds. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Olaybaugh, Judge.</p> <p>Action by Florence M. Cox against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Laporte Superior Court; Charles E. Truesclell, Special Judge.</p> <p>Action by Warren-Scharf Asphalt Paving Company against William F. Woodson, trustee. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clinton Circuit Court; Joseph Olayhaugh, Judge.</p> <p>Action by William M. Reser against the Farmers’ Mutual and others. From a judgment for plaintiff, defendants appeal.</p>