Volume 45 — Indiana Appellate Court Reports

<p>Prom Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by George G. Wood and another against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Attorney and Client. — Collections.—Liability.—An attorney is liable to his client upon demand for money collected for such, client, p. 19.</p> <p>2. Attorney and Client.- — Collections.—Wolice.—-It is the duty of an attorney, within a reasonable time after collecting money for a client, to notify such client of such fact. p. 19.</p> <p>3. Attorney and Client. — Collections.—Recovery of Rees. — Insi ructions. — In an action by a client against her attorneys, for the recovery of money collected by them for her, an instruction' that the jury should ascertain the amount collected and deduct therefrom a reasonable sum for attorneys’ fees, and return a verdict for the remainder with interest, properly protects the interests of the attorneys, p. 20.</p> <p>4. Appeai. — Affirmance with Damages. — The Appellate Court, in its discretion, may affirm a judgment with damages, p. 20.</p>

<p>1. Commerce. — Unfair Trade. — Deceit.—No person has the right to represent his goods as those of another, p. 2.3.</p> <p>2. Trade-Marks and Trade-Names. — Similarity.—Deceit.—Injunction.- — Where a person or a corporation has assumed a name so similar to another that the business of the latter is being diverted, or is liable to diversion thereby, injunction will lie to prevent the use of such name by the former, p. 23.</p> <p>3. Fraud. — Trade-Names.—Deceit-—The use of a trade-name so similar to that of another that the public is deceived thereby, constitutes a fraud upon the person whose trade is thus despoiled. p. 24.</p> <p>4. Fraud. — Elements. — Separation of. — Unfair Competition.— The essence of unfair competition is fraud, and it is determined from a consideration of all the circumstances combined, p. 25.</p> <p>5. Trade-Marks and Trade-Names.— “Anderson Cheese Cutter Company.” — Right to Use. — The use of the trade-name “Anderson Cheese Cutter Company” cannot ordinarily be restrained, the local name “Anderson’' being rightly used by any one, unless by long-continued use it has gained a secondary meaning, and the words “cheese cutter” being merely descriptive, may ordinarily be used by any one. p. 25.</p> <p>O. Tuadio-Marks and Trade-Names.-— Exclusiveness.— Proprietary Rights.- — Injunction.—To restrain the defendant from using a certain trade-name it is not necessary for the plaintiff to establish an exclusive or proprietary right in the words used. p. 25.</p> <p>7. Fraud. — Diversion of Mail. — Trade-Names.—Unfair Competition. — A person or corporation whose mail is diverted to another because the latter, for fraudulent purposes, has adopted a similar trade name, has a right of action for fraud and may restrain the further use of such trade-name. p. 27.</p> <p>8. Injunction.— Trade-Names.— Unfair Competition. — Complaint. —A complaint by the “Computing Cheese Cutter Company” alleging that the defendants under the name of “Anderson Cheese Cutter Company” conspired to deprive the plaintiff of its business, that they “are deceiving the public and plaintiff’s customers, thereby securing orders and profits intended for the plaintiff,” and are wrongfully obtaining letters containing orders intended for the plaintiff, to plaintiff’s damage, states a cause of action. Comstock, P. J., and Rabb, J., dissenting, p. 27.</p>

<p>1. Tnsuraxoe. — Mutual Benefit Societies. — Suicide Glauses. — Sane or Insane. — A mutual benefit certificate providing that “no benefit shall be paid in case the member commits suicide, within five years, whelhor sane or insane,” does not insure against hanging while insane, p. 33.</p> <p>12. Insurance. — PoMeies.~-Oonditions.—Suicide.—Mutual benefit associations have the right to exclude from their risks liability for self-destruction, sane or insane, p. 35.</p>

<p>1. Words and Phrases. — “Necessary."-—The word “necessary” may import indispensably requisite, needful, appropriate, reasonable for the purpose, convenient, useful, suitable, or inevitable, but its true meaning must be determined from the circumstances in which it is used. p. 37.</p> <p>2. Words and Phrases, — “Reasonable."—The word “reasonable” imports appropriate, necessary, ordinary, or usual under the circumstances, and always implies the exercise of good faith and a sound discretion, p. 38.</p> <p>3. Master and Servant. — Liability to Third Persons. — The master is liable to third persons injured by the wrongs of his servant acting within the scope of his employment, though the particular act was not authorized, p. 39.</p> <p>4. Master and Servant. — Scope of Employment. — Wrongful Acts. —Wrongful acts committed by a servant in doing the thing authorized by the master subjects such master to liability therefor, p. 41.</p> <p>5. Master and Servant. — Bailment.—Injuring Horse. — Scope of Employment. — A company whose traveling salesman hired a horse to drive to Niles (ten miles a.way), and he drove to Buchanan (fourteen miles away), thereby fatally injuring the horse, is liable therefor, where the master’s business required the salesman to go to Buchanan, p. 41.</p>

<p>From Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by Hallie Walsh, against the Indianapolis and Martinsville Rapid Transit Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals.</p>

<p>From Warrick Circuit Court; Boscoe Kiper, Judge.</p> <p>Action by William Fleener and another against James F. Tennyson. From a judgment for plaintiffs, defendant appeals.</p>

<p>Prom Jay Circuit Court; John F. La Follette, Judge.</p> <p>Action by the People’s Bank against Levi L. Gilpin. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (67,478); James M. Leathers, Judge.</p> <p>Action by William V. Rooker against Margaret Bruce. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Railroads. — Crossing Accidents. — Justices of the Peace. — Complaint. — A complaint, in an action before a justice of tbe peace, •alleging that defendant railroad company negligently ran its engine against plaintiff’s horse and wagon, at a speed in violation of the city ordinance, after the defendant knew or should have known of the danger, and without any negligence on plaintiff’s part, to plaintiff’s damage, states a cause of action before a justice of the peace, p. 59.</p> <p>2. Trial. — Verdict.—General.—Effect.—A general verdict settles all conflicts in the evidence in favor of the successful party, and establishes all allegations upon which there is any proof, p. 60.</p> <p>8. Railroads. — Crossing Accidents. — Last Clear Chance. — Evidence. — Where it was impossible for the engineer to avoid the accident complained of, after he ascertained, or should have ascertained, the danger, the company is not liable, p. GO.</p> <p>4. Negligence. — Complaint.—Railroads.—Injuries lo Property.— Negativing Contributory Negligence. — Presumptions.—In actions for damages to property, the plaintiff must aver and prove freedom from contributory negligence, and the presumption is against the one having the burden of proof, p. 60.</p> <p>5. Railroads. — Grossing Accidents — Evidence.—Where a driver, in the night, drove upon a crossing, without using any care, and liis horse was killed by a passing train, no recovery can be permitted. p. GO.</p> <p>O. Evidence. — Contradicting Physical Facts. — Presumptions.—A person is conclusively presumed to hear what is clearly audible, aud to see what is plainly visible, p. 61.</p> <p>7. Appeal. — Want of Evidence. — Where there is a total want of evidence to support a material allegation of the plaintiff’s complaint, a judgment in his favor will be reversed, p. 61.</p>

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Action by the Cole Carriage Company against James P. Hornbeck and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by The Crawfordsville Trust Company, as administrator of the estate of Elizabeth Coulter, deceased, against Samuel Coulter. From a decree for plaintiff, defendant appeals.</p>

<p>1. Negligence. — Facts Constituting.- — -Complaint.—A complaint which fails to allege that the acts complained of were negligently done, must allege facts showing a necessary inference of negligence. p. 72.</p> <p>2. Municipal Corporations. — Liability for Negligence. — A municipal corporation is not an insurer of the safety of its streets; and to hold it liable negligence must be shown, pp. 72, 74.</p> <p>3. Municipal Corporations. — Negligence.—Complaint.-—A complaint alleging that defendant city for six months permitted to remain a sidewalk upon which there projected a piece of timber used as a horse for steps constructed by an adjacent lot owner, that the plaintiff without any knowledge thereof was traveling upon such sidewalk, at night, and struck such timber, throwing him heavily upon the walk, to his damage, fails to state a cause of action, since it fails to state that any act was negligently done, and such facts might exist without negligence, p. 74.</p>

<p>Appeai,. — From Boards of Commissioners. — “Aggrieved’’ Persons. — • Taxpayers. — A resident, citizen and taxpayer of a county is entitled to appeal as an “aggrieved” person, under §6021 Burns 1908. §5772 R. S. 1881, giving sucli person a right of appeal from an allowance by the board of commissioners.</p>

<p>From Tipton Circuit Court, J. F. Elliott, Judge.</p> <p>Action by Nancy Freeman against the City of Tipton. From a judgment for plaintiff, defendant appeals.</p>

<p>From Dubois Circuit Court; F. A. Ely, Judge.</p> <p>Action by Anthony A. Bufkins against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Rush Circuit Court; Will M. Sparks, Judge. Action by Augustus L. Perkins against Judson Harmon, as receiver of the Cincinnati, Hamilton and Dayton Railway Company, and another. From a judgment for plaintiff, defendant receiver appeals.

From Cass Circuit Court; John 8. Lairg, Judge. Action by Peter Mellette against the Indianapolis Northern Traction Company and others. From a judgment for defendants, notwithstanding a general verdict for the plaintiff for $8,000, plaintiff appeals.

Prom Dearborn Circuit Court; William R. Bainbridge, Special Judge. Action by Mary E. Hill against Minerva Hill and others, as executors of the will of Abram Hill, deceased. Prom a judgment for plaintiff, defendants appeal.

<p>1. Replevin. — Road Tools. — 'Township Trustees. — Road Supervisors. — A township trustee, so long as there is a legal, qualified and acting road supervisor, cannot, on behalf of his township, maintain an action in replevin to recover possession of the road tools and other effects belonging to such supervisor’s district, p. 103.</p> <p>2. Highways. — Supervisors—Changing Boundaries of District.— The mere change of boundaries of the road districts in a township does not vacate the office of road supervisor, of one of such districts, where the supervisor still resides in such district, p. 103.</p>

<p>1. Bastardy. — Title to Money Recovered. — Parent and Child. — The money recovered in a bastardy proceeding belongs to the child and must be used for its benefit, p. 10(3.</p> <p>2. Bastardy. — Recovery for. — Use of Money. — Trusts.—Money can be recovered in a bastardy case only for the support of the child, and the mother ordinarily becomes its trustee for the use of the child, p. 106.</p> <p>3. Bastardy. — Recovery for. — Trusts.—Notice.—One who knowingly borrows money recovered in a bastardy case thereby becomes a trustee of such money, and is liable to such child, p. 106.</p> <p>4. Bastardy. — Recovery—Rights of Child. — An illegitimate child, by its next friend, may maintain an action for money recovered for its benefit and improperly used. p. 107.</p> <p>5. Trusts. — Limitation of Actions. — Bastardy.—Money Recovered. —Where the father of a daughter who recovered a sum of money in a bastardy case, borrowed such money, knowing of sucli recovery, be thereby becomes a trustee of such money, and the statute of limitations does not begin to run against an action therefor by such child until after his clear and unequivocal repudiation of such trust, p. 108.</p> <p>6. Limitation or Actions. — Infants.—Statutes.—Infants have two years after attaining twenty-one years of age in which to maintain actions which would ordinarily have been barred (§298 Burns 1908, §296 R. S. 1881), and if the defendant dies during such two-year period, the time is extended eighteen months from the time of death, less the unexpired portion of such two-year period (§300 Burns 1908, §298 R. S. 1881). p. 109.</p> <p>7. Bastardy.— Trusts.— Interest.— Parent and Child.— One who knowingly borrows money recovered for, and belonging to, a bastard child, and who commingles such money with his own, for his own use, is liable for such money ana interest thereon, but where such child was a member of the borrower’s family, interest will be computed from the time such child ceased to be a member of the family, p. 109.</p> <p>S. Pabent and Child. — Grandparents.—Grandchildren.—Services. —In the absence of a contract a grandparent is not entitled to compensation for caring for his grandchild who is a member of his family, p. 110.</p>

<p>Prom Hancock Circuit Court; George W. Galvin, Special Judge.</p> <p>Intervening petition by Edmund P. Thayer and others, against Charles E. Kinder and others. Prom a judgment for defendants, plaintiffs appeal.</p>

Prom Monroe Circuit Court; J. B. Wilson, Judge. Suit by Mattie B. Davis against the Buffalo Oolitic Limestone Quarries Company and others. Prom a decree for plaintiff and others, such company and others appeal.

<p>1.- Contracts. — Letters.—Statute of FrrncTs. — A written contracl within the statute of frauds (§7469 Burns 1908. §4910 R. S. 1881) may be made up of letters or telegrams, but a meeting of the minds must be shown, p. 125.</p> <p>2. Contracts. — Letters.—Acceptance.—A letter from defendant stating that he has booked an order from plaintiffs for a certain number of staves of certain dimensions, to be shipped in a certain manner, and specifying the method of payment, and an answer from the plaintiffs stating that they note the defendant’s acceptance of the proposal for certain staves, and the method of shipment, and stating that they would load one car the next day, the defendant replying with directions of shipment, constitute a written contract, all of the letters being construed together, p. 125.</p> <p>3. Contracts. — Pci formalice. — Breach. — Conditions Precedent, — Refusal to Perform. — Complaint.—A complaint alleging that the plaintiffs and defendant executed a contract, that the plaintiffs performed a part of such contract, and were prevented from performing (lie remainder thereof by the defendant, sufficiently alleges the performance of a condition precedent, p. 126.</p> <p>4. Contracts. — Refusal to Per form. — Complaint for Breach. — ■A complaint alleging that defendant repudiated and refused to perform the contract sued upon, need not show a performance, or offer to perform, by the plaintiffs, p. 127.</p> <p>5. Contracts. — Breach.—Manufacturing Staves.— Complaint.— A complaint alleging that defendant contracted with the plaintiffs for them to manufacture certain staves for the defendant, that they did so, but that they failed to load them on the cars, as provided by tbe contract, because the defendant withheld shipping directions, shows an executed contract on the part of the plaintiffs. pp. 129,130.</p> <p>G. Contracts. — Manufacturing and Shipping Goods. — Failure to Give Directions. — Agency.—A person contracting with a manufacturing company for the manufacture and shipment of certain goods cannot by withholding shipping directions abrogate his contract, such company being merely bis bailee or agent in the shipping of the goods, p. 129.</p> <p>7. Contracts. — Manufacture and Shipment of Goods. — Delay in Shipping. — Estoppel.—One who orders, in writing, certain goods to be manufactured and shipped at a certain time, is estopped to take advantage of a delay in shipment, where by a written order he has requested such delay, p. 130.'</p> <p>S. Contracts. — Executed.—Executory.—Complaint.—Demurrer. — A demurrer for want of facts does not raise the question of repugnancy in a complaint for breach of contract, some of the paragraphs alleging an executory, and some an executed, contract, p. 131.</p> <p>9. Contracts. — Severable.—A contract for fifteen loads of staves to be shipped at separate times is severable, p. 131.</p> <p>10. Appeal. — Briefs.—Want of Evidence. — Appellant’s failure to set out or narrate tbe evidence in his brief makes it discretionary with the Court, on appeal, to consider the evidence, p. 131.</p> <p>.11. Appeal. — Technicalities.—A just judgment will not be reversed on technicalities, p. 132.</p>

<p>Prom Putnam Circuit Court; G. C. Moore, Special Judge.</p> <p>Action by Emma A. Payne against the Terre Haute Traction and Light Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Daviess Circuit Court; H. Q. Iloughton, Judge.</p> <p>Suit by John IT. Pahde against Emma P. Pate and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Quieting Title. — Complaint.—Bxhibits.—Abstracts of Title. — An abstract of title furnished by the plaintiffs under the order of the court (§369 Burns 1908, §363 R. S. 1881), In a quiet title suit, does not constitute an exhibit, and forms no part of the complaint, such suit not being'founded upon such abstract.</p>

<p>1. Carriers. — Street Railroads. — Alighting.—Damages. — Instructions. — An instruction that the plaintiff, a married woman, is entitled to recover for “loss of time, if any,” and “the expense, if any, necessarily incurred on account thereof,” is not harmful to the defendant street railroad company, where there was no evidence introduced either as to loss of time, or expense, p. 150.</p> <p>2. Carriers.— Street Railroads.— Alighting.— Damages.— üíarried Women.— Instructions.— An instruction, in an action for personal injuries by a married woman, tliat the plaintiff is entitled to recover for “loss of time, if any,” and tliat tlie jury may consider “liow far, if at all, the injury renders her less fit to pursue her calling and business,” and her ability to earn wages before and after the alleged injury, while not free from criticism, when considered in connection with other instructions, is not prejudicial, p. 152.</p> <p>3. Damages. — Excessive.—An award of $1,000, to a married woman, twenty-seven years old, thrown from a street-car and receiving injuries, which caused intense pain, depression, and impairment of hearing and sight, is not excessive, p. 152.</p>

<p>1. Carriers. — Railroads.—Stations.—Failure to Light. — Complaint. —A complaint alleging that defendant railroad company negligently failed to light the platform in front of its station, by reason whereof the plaintiff in attempting to reach the train stumbled against the raised end of such platform, to her injury, states a cause of action, p. 154.</p> <p>2. Trial. — General Verdict. — Interrogatories.—A general verdict for the plaintiff is a finding in plaintiff’s favor upon all of the issues, and answers to the interrogatories to the jury control the general verdict only when in irreconcilable conflict therewith, p. 155.</p> <p>3. Trial. — Verdict.—Interrogatories.—Conflict.—Hoio Determined. —‘In determining whether there is a conflict between the general verdict and answers to the interrogatories to the jury, only the pleadings, general verdict and such answers will be considered, p. 156.</p> <p>4. Carriers. — Railroads.—Lighting Platform. — Verdict.—Interrogatories. — Conflict.—Where the complaint alleged that the raised end of defendant railroad company’s platform was “wholly unlighted and in total darkness,” answers to interrogatories that the depot was lighted with four lamps which “threw a profuse light out the windows,” are not in irreconcilable conflict with a general verdict for the plaintiff, p. 156.</p> <p>5. Carriers. — Railroads.—Lighting Stations. — Question for Jury.— A railroad company which sells round-trip tickets to a small flag station is required to know that there will probably be passengers there, and is. therefore, required to light its platform for a reasonable time before the arrival of its train, the reasonableness of such time being a question for the jury. p. 156.</p> <p>6. Appeal. — Absence of Evidence. — Instructions.—Presumptions.— In the absence of the evidence, the presumption, on appeal, is that instructions refused were not applicable thereto, p. 157.</p>

<p>From Knox Circuit Court; Orlando S. Cobb, Judge.</p> <p>Action by the Citizens State Bank, of Watseka, Illinois, against Reuben Read and others. From a judgment for defendants, plaintiff appeals.</p>

From Superior Court of Marion County (73,071) ; Bernard Korbly, Special Judge. Cross-complaints by the Indianapolis Mortar and Fuel Company and others against Marion Smail and others. From the decrees entered, defendant Smail and others appeal.

<p>1. Municipal Corporations. — Streets.—Grading.—Occupancy by Railroads. — Cities have the right to establish grades for the streets thereof, and the occupancy of a street by a railroad company does not lessen nor affect such power, p. 167.</p> <p>2. Municipal Corporations. — Grading Streets. — Damages.—Except by statute, cities are not liable for damages caused by the proper grading of streets, p. 167.</p> <p>3. Municipal Corporations. — Grading Streets. — Delegation of Power. — Railroads.—Cities cannot delegate their power to establish street grades to railroad companies, p. 107.</p> <p>4. Railroads. — Changing Grades. — Damages.—streets.—Oities. — A railroad company that changes its grade to conform to a city ordinance, in the absence of negligence, is not liable to a frontager for damages to his lot. p. 168.</p> <p>o. Railroads. — Rights of Way. — Oeeupancy.—Presumptions.—A railroad company that takes possession of a right of way of the full legal width will be conclusively presumed to have appropriated such land. p. 109.</p> <p>O. Railroads. — Occupancy of Streets. — Presumptions.—Easements. —A railroad company which has occupied a certain portion of a street for inore than twenty years obtains title to such portion, but its use is subservient to the use thereof as a street, and the city may require such company to straighten its track therein, p. 169.</p> <p>7. Municipal Corporations.— Streets.— Easements. — Railroads.— Cities may grant to railroad companies the right to use the streets, but sucb grants do not prevent frontagers from recovering damages for the additional burdens imposed upon their lots. p. 170.</p> <p>8. Municipal Corporations. — Streets.—Highways.—Ownership of. —The owner of a lot abutting on a highway owns to the middle of such highway, p. 170.</p> <p>O. Damages. — Railroads.—Streets.—Frontagers.—A railroad company that is compelled by a city to straighten its tracks in a street, requiring the track to be laid on the opposite side of the street from where it formerly lay, is liable in damages for the additional burden to the frontagers upon such side of the street, pp. 170,171.</p> <p>10. Limitation op Actions. — Damages.—Railroads.—Twenty years’ use of a street by a railroad company bars a right of action by frontagers for damages, p. 171.</p> <p>11. Pleading. — Complaint.—Verbal niceties. — Courts will not indulge in mere verbal quibbles in determining the substantial rights of parties, p. 172.</p>

<p>Prom Pulaski Circuit Court; John G. Nye, Judge.</p> <p>Action by Morris Shelton against Charles J. Lundin. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Vendor and Purchaser. — Lands.—Representations.—Presumptions. — A vendor is presumed to know the truth of his representations as to the character of soil on his farm, and the value thereof. p. 180.</p> <p>2. Vendor and Purchaser. — Representations.—Opinions.—Value.— Representations as to the value of a farm are usually consid-</p> <p>. ered as merely expressions of opinion; but where the vendor knows that the purchaser is wholly ignorant of the value of the land, and the value is stated as a fact and relied upon, to the vendor’s knowledge, the vendor is bound thereby, p. 181.</p> <p>3. Vendor and Purchaser. — Representations as to Value. — ■Answer. • — Counterclaim.—Allegations in an answer and in a counterclaim that the vendor falsely represented that his farm was worth $19,-000, that the purchaser was not acquainted with the value thereof, that relying upon the representation he purchased said farm, and that such farm was not worth more than $12,000, do not show that such representation was more than the expression of an opinion, p. 181.</p> <p>4. Vendor and Purchaser. — Representations as to Soil. — Answer. —Counterclaim.—Allegations in an answer and in a counterclaim that the vendor falsely represented the soil on his farm to be rich, very productive, deep and black, for the purpose of cheating the purchaser, that the purchaser was ignorant of the falsity thereof, and that the purchaser was injured thereby, sufficiently show false representations of facts, and constitute a good defense and counterclaim to an action for the purchase price, p. 181.</p> <p>5. Vendor and Purchaser. — False Representations. — Fraud.—Vendors who falsely represent, to a purchaser’s injury, are ordinarily not permitted to take advantage thereof under the pretense that the purchaser should not have believed them. p. 183.</p> <p>6. Vendor and Purchaser. — False Representations. — Fraud.—A vendor’s statements that the soil on his land is very productive, rich, deep, and black, are expressions of fact and not of opinion, pp. 183,184.</p> <p>7. Words and Phrases. — ’“Rich" Soil. — The word “rich,” when applied to the soil, imports fertility, productiveness, and abundance of yield, p. 183.</p>

Prom Jackson Circuit Court; Joseph H. Shea, Judge. Petition by George W. Zollman against which the Board of Commissioners of the County of Jackson, and another, remonstrate. Prom a judgment for petitioner, remonstrants appeal.

<p>1. Landloed and Tenant. — Justices of the Peace. — Complaints before. — Sufficiency.—A complaint before a justice of the peace is sufficient if it apprises the defendant of the nature of the plaintiff’s demand, and states facts sufficient to bar another action for the same cause, p. 189.</p> <p>2. Landloed and Tenant. — Complaint before Justice of the Peace. —A complaint before a justice of the peace, alleging that the plaintiff’s lessor rented to the defendant, for two years, a certain room in her hotel, that defendant took and now holds possession thereof, that the rent was payable monthly in advance and defendant failed to pay same, that defendant unlawfully holds possession of such room, that the plaintiff leased such building including the room rented to defendant, to defendant’s knowledge, and that plaintiff is damaged in the sum of fifty dollars, states a cause of action, p. 190.</p> <p>3. Landloed and Tenant. — Unlawfully Holding over. — Cist of Action. — In actions to recover possession of leased premises unlawfully held by tenants, the wrongful possession is the gist of the action, p. 191.</p> <p>4. Landloed and Tenant. — Rent.—Failure to Pay. — A tenant who agrees to pay in advance a stipulated sum, as rent, on the first day of each month, and who fails to pay same, holds over unlawfully, such failure having determined his tenancy, p. 191.</p> <p>5. Justices of the Peace. — Jurisdiction.—Landlord and Tenant.— Holding over. — Justices of the peace have jurisdiction over actions to recover possession as against tenants unlawfully holding over p. 192.</p>

<p>1. Appeal. — Record.—Complaint.—Paragraphs.—Failure to Present. — Rulings upon the first paragraph of a complaint will not be reviewed, on appeal, where the transcript fails to show the filing thereof, and where such paragraph cannot be separated from the second, p. 193.</p> <p>2. Appeal. — Record.—Instructions.—Questioning.—Where the transcript merely shows the filing of certain instructions, their signature by the judge and by the appellant, but fails to show that such instructions were given at the trial, no reversible error is shown, p. 194.</p> <p>3. Appeal. — Defective Record. — Amendments. — Certiorari. — The Appellate Court is exceedingly liberal in permitting amendments to transcripts on appeal, p. 195.</p> <p>4. Appeal. — Presumptions.—The presumption, on appeal, is that the trial court committed no error, p. 195.</p> <p>5. Witnesses. — Credibility.—Reputation for Morality. — Evidence. —Evidence of a party’s reputation for morality is admissible, in a civil case, as affecting his credibility, but such evidence should be explicitly confined to such purpose, p. 195.</p> <p>6. Appeal. — Weighing Evidence. — Accounts.—The Appellate Court cannot weigh conflicting evidence in an action on on account, p. 196.</p>

<p>From Pulaski Circuit Court; Truman F. Palmer, Special Judge.</p> <p>Suit by Medary M. Hathaway against Frank W. Weeks and another. From a decree for plaintiff, said defendant Weeks appeals.</p>

<p>1. Descent and Distribution. — Childless Widow. — Hews.—Expectancies. — Under §2487 R. S. 1881 a childless second or subsequent wife, the husband’s children by a former marriage being alive, took a fee simple in one-third of his real estate, his children being her forced heirs, such children having merely a fixed expectancy during her life. p. 205.</p> <p>2. Deeds. — Quitclaim.—Estates in Expectancy.- — Estoppel.—A quitclaim deed does not operate upon an estate in expectancy, and the grantor is not estopped from claiming such estate when it becomes vested, p. 205.</p> <p>3. Deeds. — Expectant Estates. — Childless Widow. — Heirs.—Estoppel. — Under § §3020, 3023 Burns 1908, Acts 1899, p. 131, §3, and Acts 1907, p. 71, §1, a father’s children by a prior marriage are es-topped from claiming title as forced heirs of their father’s subsequent childless widow, where they have conveyed such land and have received pay therefor, p. 206.</p> <p>4. Deeds. — Conveyance of Expectancy. — Requisites.—A conveyance of an expectancy is never presumed, is always viewed with suspicion, and the grantee must show that it was made in good faith, without fraud, and upon the receipt of full value, p. 206.</p> <p>5. Descent and Distribution. — Childless Widoxv. — Conveyance T>y Children. — Burden of Proof. — Cura,Uve Statutes. — Sections 3020, 3023 Bums 1908, Acts 1899, p. 131, §3, and Acts 1907, p. 71, §1, were enacted to prevent children of a father who subsequently loft a childless widow from afterwards claiming lands inherited from such widow, which they had sold and for which a fair price had been received, but the burden is upon the grantee to prove that such children intended to convey their expectant estate, p. 207.</p> <p>O. Trial, — Special Findings. — Failure to Find Certain Fads.— Effect. — A failure to find certain facts is a finding against the party having the burden of proving such facts, p. 207.</p>

<p>1. Evidence. — Former Testimony of Nonresident Witness. — The testimony of a nonresident witness upon a former trial is admissible in a subsequent Lrial, p. 209.</p> <p>2. Trial. — Instructions.—Misleading.—An instruction which, considered with others, does not mislead the jury, is harmless. p. 210.</p> <p>3. Assault and Battery. — Damages.—Self-Defense.—Instructions. —An instruction that self-defense cannot be carried further than-the necessity of the case demands, that “a person exercising such right may safely act upon appearances,” and that “the danger must be judged from his standpoint if he entertained an honest belief in its existence,” is not prejudicial to defendant, p. 210.</p> <p>4. Assault and Battery. — Facessive Force. — Instructions.—An instruction that in repelling an assault the defendant had no right to use excessive force, and if he did, he would be liable for such excess, is not erroneous, p. 210.</p> <p>5. ArPEAL. — Death.—Affirmance.—Where the appellee died, after appeal takeD, a judgment of affirmance will be considered as made on the date of submission of the cause, p. 211.</p>

<p>Prom Adams Circuit Court; Richard K. Erwin, Judge.</p> <p>Action by Samuel Stahl and others against the Illinois Oil Company. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Cora Michael and others against the C. Callahan Company and others. From a judgment for plaintiff, -defendants appeal.</p>

Prom Posey Circuit Court; Lucius C. Embree, Special Judge. Suit by Andrew Wasem, as trustee in bankruptcy of tbe estate of Theodore H. Raben, against Rosa Raben and others. Prom a judgment for defendants, plaintiff; appeals.

Prom Wabash. Circuit Court; A. II. Plummer, Judge. Action by Alvira Rogers, as administratrix of the estate of Luther Rogers, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom- a judgment on a verdict for plaintiff for $2,945, defendant appeals.

<p>From Superior Court of Marion County (71,836); Vinson Carter, Judge.</p> <p>Suit by Leopold Mayer against the C. P. Lesh Paper Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Municipal Corporations. — Ordinances.—Repeal by Implication. —The repeal by implication of one city ordinance by another is effected only where the repugnancy between such ordinances is so clear that they cannot be reconciled, p. 257.</p> <p>2. Municipal Corporations.— Ordinances.— Repeal.— City Hospitals. — Superintendents.—Salaries.—An ordinance creating the office of superintendent of the city hospital for contagious diseases, and fixing the salary of such superintendent, is not repealed by an ordinance whose title relates to certain offices and whose subject-matter is not the same as that of the former, p. 257.</p> <p>8. Municipal Corporations. — Superintendent of Contagious Hospital. — Salary.—Failure to Appropriate for. — Contracts.—The city’s failure to appropriate money for the payment of the salary of the superintendent of its hospital for contagious diseases does not prevent his recovery thereof on the ground that an ordinance provides that “no executive department, officer or employe thereof shall have-the power to bind such city to any contract, agreement, or in any other way” beyond the money appropriated for such purpose, since such salary does not rest on a contract, p. 257.</p>

<p>Prom Putnam Circuit Court; Benjamin F. Corwin, Special Judge.</p> <p>Suit by John T. Edwards and another against Prank E. Poor and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>1. Pleading.— Complaint,— Insufficiency.— Directing Verdict.— When Judgment Affirmed on Complaint. — Defects Cured by Verdict. — Where a complaint is insufficient and the case is tried, a verdict being ordered for the defendant on the ground of the insufficiency of the evidence, the Appellate Court will not affirm the judgment on the insufficiency of the complaint, unless the facts stated are not sufficient to bar another action for the same cause, otherwise the defects of the complaint will b.e deemed as cured by the verdict, pp. 266,267.</p> <p>2. Negligence.— Telegraphs and Telephones.' — Complaint.— Barring Another Action. — A complaint alleging that defendant telephone company negligently attached a cable to a cable seat, thereby grounding the cable seat and causing injury to a city employe who was ascending the telephone pole in order to make repairs, and that defendant electric light company negligently maintained an uninsulated high voltage wire so near such polo as to come in contact with one climbing such pole, thereby injuring such employe, is sufficient to bar another action for such injury, p. 266.</p> <p>3. Trial. — Directing Verdict. — Jury.—Where there is any evidence, direct or inferential, tending to support the plaintiff's cause of action, a verdict for the defendant should not be directed, p. 267.</p> <p>4. Trial.— Directing Verdict.— Joint Defendants.— Negligence.— In an action against two defendants for negligence, if there is evidence tending to support a judgment against one or both, a judgment on a directed verdict for both will be reversed, p. 268.</p> <p>5. Negligence. — Trespassers.—Licensees.—The owner of property is not liable to trespassers or bare licensees for mere negligence. P- 273.</p> <p>6. Telegraphs and Telephones. — Electric Lights. — TJse of Poles by Others. — Streets.—Telegraph, telephone, electric light and other companies licensed to set poles along the streets of cities impliedly consent to the use of such poles by the employes of others for the purpose of properly maintaining their wires, p. 271.</p> <p>7. Telegraphs and Telephones. — Electric Lights. — Poles.—Use of, by City. — Negligence.—Where a city maintains a police telephone system using the poles of a telephone company, such company, as well as an electric light company, whose poles are set in the street under a license from the city, are liable for negligence to a city employe who climbs such poles to repair the city’s wires, and receives injuries by coming in contact with their wires, p. 272.</p> <p>8. Telegraphs and Telephones. — Electricity.—Negligence.—Complaint. — Proof.—An allegation that the plaintii'f, a city employe engaged in disentangling its police telephone wires from the company’s wires, had an express invitation from defendant telephone company to climb its poles in the prosecution of his work, is supported by proof of an implied invitation, p. 276.</p> <p>9. Telegraphs and Telephones.— Electric Light Companies.— Negligence.— Poles.— Contributory Negligence.— Telephone and electric light companies are liable for negligence in the maintenance of their poles and wires; and it is no defense that the injured employe might have escaped Injury by doing his work in some other manner, p. 277.</p> <p>10. Negligence. — Electric Light Companies. — Uninsulated Wires.— An electric light company maintaining a defectively insulated wire so close to a telephone pole that it injured an employe rightfully climbing such pole, is liable therefor, p-. 277.</p> <p>11. Negligence. — Joint.—Complaint.-—Proof.—Telephone and Electric Light Companies. — -A complaint alleging that defendants telephone and electric light companies by their alleged particular acts of negligence caused injuries to the plaintiff, will support a verdict against one or both of such companies, p. 278.</p> <p>12. Negligence. — Telephone and Electric Light Companies. — Directing Verdict. — Evidence.—Evidence tending to show that defendant electric light company maintained an uninsulated wire so near to a cable seat on a telephone pole that a city employe in climbing such pole was Injured thereby, and that defendant telephone company maintained a cable attached to a cable seat by means of a wire, thereby causing such employe, when he came near such uninsulated wire to receive a shock therefrom, is sufficient to entitle the plaintiff to a submission of his case to the jury as against each defendant, p. 270.</p> <p>18. Negligence. — -Contiibulory.— Question for Jury.— Telephone and Electric Light Companies. — Whether a city employe who in disentangling tlio police telephone wires from those of a telephone company climbed the company’s pole and in so doing received a shock from an electric light wire maintained uninsulated near the telephone pole which supported a cable attached to a cable seat by means of a wire, was guilty of contributory negligence, is a question for the jury. p. 280.</p>

Prom Elkhart Circuit Court; Anthony Deahl, Special Judge. Action by Lake Shore and Michigan Southern Railway Company against Nancy E. Dodge, as executrix of the will of Henry C. Dodge, deceased. Prom a judgment for plaintiff, defendant appeals. Affirmed conditionally.

<p>1. Hussand and Wiii?. — Fraudulent Conveyances. — Payment of Debts. — Insolvency.—Preferences.—A conveyance made by an insolvent husband to his wife in payment of a debt is not necessarily fraudulent as to creditors, though such conveyance operates as a preference in her favor, p. 285.</p> <p>2. Tbial. — ¡¿pedal Findings. — Conclusions of Law. — Questioning Correctness of. — New Trial. — The correctness of conclusions of law upon a special finding of facts can be raised by exceptions to such conclusions, but not by a motion for a new trial, p. 285.</p> <p>3. Appeal.- — Weighing Evidence. — Parties.—Examination of, Before Trial. — A judgment for defendant will not be disturbed on appeal because bis evidence at the trial was inconsistent with his testimony on his examination before trial, p. 285.</p>

From Allen Circuit Court; E. O’Rourke, Judge. Action by Eli Merriman, as administrator of the estate of Mary Lyons, deceased, against the city of Fort Wayne. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.

<p>1. Husband and Wife. — Wife’s Bight to Contract. — A married woman may contract to care for the children of another, not a member of her husband’s family, and enforce payment therefor in her own name. p. 292.</p> <p>2. Husband and Wife. — Contracts of Wife. — Caring for Infants.— Fraudulent Conveyances. — A married woman who contracts to care for another person’s children has the right to the compensation therefor; and land purchased with the money so received cannot be taken in payment of the debts of her insolvent husband, p. 292.</p>

<p>Prom Pulton Circuit Court; 8. N. Stevens, Special Judge.</p> <p>Suit by Lyman M. Brackett and others against Charles C. Campbell and another. Prom a decree for plaintiffs, defendants appeal.</p>

<p>From Huntington. Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by the McCaskey Register Company against Nelson J. Curfman. From a judgment for defendant, plaintiff appeals.</p>

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

<p>1. Deeds. — Granting Clause. — A deed reciting that the grantor and his wife “convey and warrant” to the grantee a certain tract of land, conveys the fee-simple title to the grantee (§3958 Burns 190S, §2927 R. S. ISS'l), the words “heirs” and “assigns” being unnecessary (§3960 Burns 1908, §2929 R. S. 1881). pp. 320, 327, 328.</p> <p>2. Deeds. — Granting Clause. — Limiting Scope of. — The use of the words “convey and warrant” in the granting clause of a deed may be controlled by modifying and limiting words used in the habendum clause of such deed. pp. 320, 328.</p> <p>3. Deeds. — Granting Clause. — Limiting.—A deed by which the grantors “convey and warrant to Luzette Merrill [certain land], said Luzette Merrill * * * to have and to hold the use of the lands * * * during her natural life, and upon her death the absolute title in fee simple * * * shall vest in the heirs of the body of said Luzette Merrill” and that “in ease said Luzette Merrill shall die without leaving any heirs of her body living at the time of her decease, then upon the death of said Luzette Merrill the title to one-third of said lands shall vest in Ira Merrill, the husband of said Luzette Merrill, and the title to the remaining two-thirds of said land shall vest in the heirs of the body of Martha K. Adams, sister of said Luzette Merrill,” gives to Martini K. Adams, or, if dead, to her children, two-thirds of such land, and to the husband of Luzette Merrill one-third thereof, in the event of the death of Luzette Merrill leaving no living child, pp. 322,323,324,325.</p> <p>4. Deeds. — Construction.—Words.—Courts will give effect to all of the words used in a deed, and give them their ordinary meaning when possible, pp. 323, 329.</p> <p>5. Deeds. — Remainders.—Limiting after Grant of Mstate Tail.— A valid remainder may be limited after the grant of an estate tail (§3994 Burns 1908, §2058 R. S. 1881). p.323.</p> <p>6. Deeds. — Remainder with Double Aspect. — A deed may provide, on the happening of a designated contingency, for the gift of a remainder in fee to certain persons, and to others upon the failure of the happening of such contingency, p. 323.</p> <p>I. Words and Phrases. — “Heirs of the Body.”- — Deeds.—The words •“heirs of the body,” as used in a deed giving certain land to a daughter and upon her death to her children and “heirs of the body” of said daughter then living, import children, p. 324.</p> <p>8. 'Deeds. — Remainder to Children. — Shelley’s Case. — A deed giving to the grantors’ daughter a life estate, remainder to her children and “the heirs of the body” of such daughter then living, gives a vested remainder to such children by purchase and not by descent, p. 325.</p> <p>9. Descent and Distribution. — Contingent Remainder. — Adopted Children. — An adopted child takes the interest of its adopting parents in a contingent remainder of land. p. 325.</p> <p>10. Estates. — “Property."—-Statutes.— The word “property,” as used in §1350 Burns 1908, §1285 R. S. 1881, providing that real “property” shall include “lands, tenements and hereditaments,” includes every species of title, inchoate or complete, and every right which lies in contract, executory or executed, p. 32(5.</p> <p>II. Deeds. — “Children.”—“Heirs of the Body." — Adopted Child.— An adopted child takes no title under a deed to his adoptive mother and her “children” and the heirs of her body living at her death, p. 826.</p> <p>12. Descent and Distribution. — Adopted Children. — Adopted children inherit the same as other children, p. 326.</p> <p>13. Deeds. — Warranty.—“Heirs."—At.the common law the word “heirs” was necessary to a deed in granting an absolute title, the failure to use which resulted in the creation of a life estate, p. 328.</p> <p>14. Descent and Distribution. — Heirs.—Living Persons. — A living person has no heirs, p. 329.</p>

<p>Prom Superior Court of Marion County (68,219); Vinson Garter, Judge.</p> <p>Suit by the State of Indiana, on the relation of Charles W. Miller, Attorney-General, against Catherine Lehman and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>1. Wills. — Remainders.— Contingent.— Vested.— Postponement.— Presumptions. — The law favors the vesting of estates absolutely, rather than contingently, and at the earliest possible moment, the presumption being that words of postponement relate to the beginning of the time of enjoyment and not to the vesting of the estate, p. 342.</p> <p>2. Wills.- — Construction of Language. — Presumptions.—The presumption is that the words of a will were employed in their customary legal sense, p. 342.</p> <p>3. Wills.- — Remainders.—Vesting.—A will devising to testator’s widow certain real estate for life, and further providing that “at her death * * * the rest and residue of [his] property to be divided among [his] children then living and their descendants,” gives a remainder to testator’s children, vesting at his death, but the enjoyment of which was postponed until the death of such widow, Corey v. Springer, 138 Ind. 506, and Wood v. Robertson, 113 Ind. 323, distinguís]] ed. p. 343.</p> <p>4. Wills. — Legacies.—Vesting.—Enjoyment.—A will bequeathing to each of two of testator's sons a certain sum of money, making such sums a charge upon certain devised lands, and providing that “at her [testator’s widow’s] death, after the payment of said sums” the remainder of the property to be divided, gives a legacy to such two sons, vesting at testator’s death and payable upon the death of his widow, p. 346.</p>

<p>Prom Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by J ames Dunlap against tbe Indiana Union Traction Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Tippecanoe Circuit Court; Bichard P. Be Hart. Judge.</p> <p>Action by Louis Cook against John Ormsby and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Prom Superior Court of Tippecanoe County; Henry H. Vinion, Judge.</p> <p>Action by Charles S. Plaskett against the Benton-Warren Agricultural Society. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Clinton Circuit Court; Joseph Glaybaugh, Judge.</p> <p>Action by Emmaliue Miller against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Weighing Evidence. — Breach of Contract. — Rescission.— Agency. — Ratification.—.Where a manufacturer of buggies contracted to sell aud deliver to retailers a certain number of buggies, retaining the right to take possession of such buggies if such manufacturer felt insecure, and the buggies were shipped and the evidence was conflicting as to the manufacturer’s retention of the goods, his sales agent later taking possession of such goods, and the manufacturer ever afterwards holding such possession and not offering to return or deliver such buggies to such retailers, a verdict for such retailers, in an action for breach of contract, will be upheld on appeal,</p>

<p>Prom Howard Superior Court; Patrick PL. Elliott, Judge.</p> <p>Action by Adam Record against John W. Wilson. Prom a judgment for plaintifi', defendant appeals.</p>

From Henry Circuit Court; Ed Jachson, Judge. Final report of Josiah P. Nicholson, as administrator of the estate of James W. Fletcher, deceased, to which Thomas Fletcher excepts. From a judgment against the exceptor, he appeals.

<p>1. Descent and Distribution.- — Widows.—Childless.—Prior to tho act of 1899 (Acts 1899, p. 331), a childless second wife took a fee simple in one-tliird of her husband’s real estate, but his children by a former marriage, or their descendants, became her forced heirs, p. 3S1.</p> <p>2. Descent and Distribution. —■ Widows. — Childless. — Forced Heirs. — Husbands of. — Where a daughter by a former marriage is the expectant forced heir of her father’s childless second wife, and she, together with her only child, predeceases such childless second wife, her husband takes no interest in such land, the act of 1901 (Acts 1901. p. 554) providing that the children, or their descendants, shall become such heirs, p. 381.</p> <p>3. Descent and Distribution. — Widows.—Childless.—Heirs of.— Law Governing. — The law in force at the death of a childless second wife governs as to the persons who shall be her heirs, p. 381.</p> <p>4. Deeds. — Partition.—Childless Second Wife. — Forced Heirs. — A deed by a childless second wife’s expectant forced heir — a child by the husband’s former marriage — to such wife merely for the purpose of partitioning such husband’s land, conveys no additional title, p. 381.</p> <p>5. Deeds. — Consideration.—Expectant Forced Heirs of Childless Second Wife. — Estoppel.—A deed from the expectant forced heirs of a childless second wife, of the land to be inherited, in trust for the benefit of the grantors, does not preclude such grantors, under §3020 Burns 1908, Acts 3899, p. 131, §3, estopping such children when a deed is executed thereto supported by a valuable consideration, from claiming such lands, p. 381.</p> <p>6. Judgment. — Partition.—Title.—Childless Second Wife. — Heirs of. — In a suit, for partition, by a childless second wife against the descendants of a child of her husband by a former marriage, including the husband of a deceased daughter, a decree dividing the land and providing that the plaintiff shall hold the fee of a certain part and that such part should descend to such children, or their descendants, as such widow’s forced heirs, gives to such • husband no right as an heir. p. 382.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Suit by the New Long Distance Telephone Company against Julia White and another. From the decree entered, plaintiff appeals.</p>

From Superior Court of Marion county (76,209); John L. McMaster, Judge. Suit by Charles O. Britton, as receiver of the Hoosier Sand and Gravel Company against Cbarles H. Vancleef and others. From a decree for plaintiff, defendants appeal. Affirmed.

<p>1. Master and Servant. — Goal Mines. — Props.—Assumption of Risk. — Instructions.—An instruction that a coal miner who works, knowing that the master has failed to furnish props or timbers with which to secure his roof, is not thereby precluded from a recovery for injuries sustained thereby, and that the risks assumed by the miner are those only which occur after the master has performed the duties imposed by law, is correct, p. 393.</p> <p>2. Master and Servant. — Goal Mines. — Imposed Duties. — Contributory Negligence. — Instructions.—An instruction that the mining statute (§8580 Burns 1908, Acts 1905, p. 65, §12) was designed to protect miners not only from apparent, but also from remóle and latent dangers, and that a miner injured because of a violation of such statute can recover therefor, unless he has notice of imminent or immediate danger, is not erroneous, p. 393.</p> <p>3. Master and Servant. — Coal Mines. — Defective Roofs. — Notice. —Assumption of Risk. — Instructions.—The refusal to give an instruction that if a servant in a coal mine knew of a defective and dangerous condition in the roof of his room and failed to notify the mine boss thereof, and continued to work in such defective and dangerous room, he cannot recover, is not prejudicial to defendant, where another instruction covered the subject of contributory negligence, p. 394.</p> <p>4. Master and Servant. — Coal Mines. — Violation of Rules or Law by Servant. — Contributory Negligence. — The violation of a rule by a servant, which contributes to such servant’s injury, prevents a recovery by such servant, p. 395.</p> <p>5. Master and Servant. — Violation of Statute or Rules. — Contributory Negligence. — Proximate Cause. — The violation of a statute, or the rule of his master, by the servant, precludes a recovery of damages by him, where such violation was the proximate cause of the injury, p, 395.</p> <p>6. Master and Servant. — Goal üfmes. — Statutes.—“Unsafe Place.” —Contributory Negligence. — Question for Jury. — Whether a servant is guilty of contributory negligence in failing to notify the mine boss of an “unsafe place” (§8580 Burns 1908, Acts 1905, p. 65, §12), of which he has knowledge, or in remaining in an “unsafe place,” after notice, is a question for the jury. p. 396.</p>

<p>1. Divorce. — Alimony.—Amount of. — The amount o£ alimony to be given in a divorce case is largely discretionary with the court, p. 398.</p> <p>2. Divorce. — Alimony.—Measure of. — A wife who secures a divorce should be granted alimony sufficient to place her in as good a financial position as she occupied during marriage, p. 399.</p> <p>3. Divorce. — Alimony.—Evidence.—Alimony in the sum of $3,000, given to a wife who is granted a divorce because of her husband’s cruelty, the evidence showing that he owned land valued at $6,425, and a life estate in other land having an annual rental value of $1,272, is not excessive, p. 399.</p> <p>4. Divorce. — Allowances to Wife for Expenses. — A wife who has sufficient property should not be granted a temporary allowance pendente lite, but where a wife secures a divorce, or a husband’s application is denied, the statute (§1080 Bums 1908, §1042 R. S. 1881) requires an allowance covering the expenses of the wife; and the sum of $200 is not excessive in a contested ease, where the husband’s property is valued at more than $6,000. p. 400.</p> <p>5. Divokce.— Alimony.— Instalments.— Stay.— Motion to Modify Judgment. — Appeal.—A judgment for alimony made payable in instalments conditioned upon defendant’s staying the judgment is not bad, the presumption being that the stay was to be given as required by statute (§§732, 733 Burns 1908, §§690, 691 R. S. 1881) ; and no question can be raised, on appeal, as to the form of judgment, there being no motion to modify, p. 400.</p>

<p>Prom Ohio Circuit Court; George E. Downey, Judge.</p> <p>Action by Andrew T. Cook against the Cincinnati, Lawrenceburg and Aurora Electric Street Railway Company.</p> <p>From a. judgment on a verdict for plaintiff for $2,700, defendant appeals.</p>

<p>From Allen Circuit Court; JS, 0 ’Rourhe, Judge.</p> <p>Action by William B. Sible and another against S. Bash & Go. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Insurance. — Beneficiaries.—Vested Rights. — A policy giving to the assured the right to change his beneficiary does not give such beneficiary a vested right, p. 414.</p> <p>2. Insurance. — Policies.—Mutual Abrogation. — A policy giving no vested right to the beneficiary may be abrogated by the mutual consent of assured and the company, p. 414.</p> <p>3. Insurance. — Contract.-—Policy.—Notes.—The policy and the premium notes constitute the contract between the company and assured, p. 414.</p> <p>4. Insurance.— Policy■— Cancelation— Where assured delivered up his policy to the company’s local agent and obtained his premium note, his policy ceases to be binding, although the company, at its home office, without knowledge of the facts, has issued a short rate premium for the time the policy was outstanding, p. 415.</p> <p>5. Insurance. — Policy.—Notes.—Estoppel.—Where a policy is surrendered and the premium note canceled no action can be supported on the policy, and the company is estopped to maintain an action on the note. p. 415.</p>

<p>From Warrick Circuit Court; Roscoe Kiper, Judge.</p> <p>Action by J. Wilfred Gaidry against Ferdinand Holtz and another. From a judgment for plaintiff, defendants appeal.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Lizzie Fisher against the Supreme Tent, Knights of the Maccabees of the World. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Wobk and Labok. — Money Advanced. — Complaint.—Bills of Particulars. — In an action for commissions on sales, and for money expended, a complaint which shows neither by its averments nor by the bill of particulars thereto attached that the commission was earned, nor that such money was advanced by the plaintiff, is not sufficient, a general allegation of indebtedness being insufficient. p. 428.</p> <p>2. Pleading. — Common Counts. — Code.—The common counts, as established by the common law, are sufficient under the Indiana code, but a common count which fails to allege that the work sued for was done, or that the money sued for was advanced by the plaintiff, is bad. p. 429.</p> <p>3. Appeal. — Defective Pleadings. — Evidence Not in Record. — Right Result. — Where the pleadings alone are in the record, the Appellate Court is unable to tell whether a correct result was reached, p. 429.</p>

<p>Prom Lagrange Circuit Court; James S. Dodge, Judge.</p> <p>Action by Prank S. Finley and another against the City of Kendallville. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Railroads. — Rights of Way. — Contracts.—A railroad company receiving a grant of a right of way on which to build switches must abide by the conditions of such grant, p. 436.</p> <p>2. Railroads. — Violating Basement Rights. — Increase of Hazard.— A railroad company that violates the provisions of a right of way contract, thereby increasing the hazard to the grantor’s property, can be enjoined, p. 430.</p>

<p>1. Trial. — Talcing Case from Jury. — Appeal.—A directed verdict for the defendant can be upheld, on appeal, only where the facts, together with the inferences therefrom, most favorable to the plaintiff, wholly fail to entitle him to any relief, p. 438.</p> <p>2. Contracts. — Support.—Failv/re to Conform. — Damages.—Where the plaintiff’s decedent conveyed her farm to her son, such son agreeing to furnish, for her, firewood, vegetables, apples and cider, and the evidence, in an action by her administrator for damages, fails to show that any vegetables or apples were raised on the farm thereafter, or that any cider was made, and further shows that such son furnished some of the wood used by the grantor, and agreed with the person who furnished the remainder to pay for it, no breach of the contract is shown, p. 439.</p> <p>3. Tbial. — Directing Verdict. — Proving Different Cause of Action. —Variance.—Where the evidence shows a wholly different cause of action from the one alleged, a verdict for defendant should be ordered, p. 440.</p>

<p>1. Pleading. — Complaint.—Theory.—A complaint should proceed upon a definite theory, p. 443.</p> <p>2. Railroads. — Inter-urban.—Injuries on Highways. — Frightening Horses. — Complaint.—Where a complaint alleges that defendant interurhan railroad company negligently ran its car along the highway upon which the plaintiff was traveling in a buggy, that the plaintiff’s horse became frightened thereat, to defendant’s knowledge, and that the defendant refused to stop its ear, thereby causing such horse to throw the plaiDtiff from her buggy, to her injury, such charge of negligence is the gist of the action, and is the only charge defendant should be expected to meet. p. 443.</p> <p>3. Railroads. — I nlerurban. — Vse of Highways. — Nuisance.—The authorized use of a public highway by an interurhan railroad company does not of itself constitute a nuisance, p. 443.</p> <p>4. Appeal. — Instructions.—How Jlade Part of Record. — Where the word “given,” or the word “refused,” was written before each of the instructions set out in the transcript, such instructions can not he considered a part of the record, the statute (§561 Burns 1908, Acts 1007, p. 652) requiring a memorandum showing which instructions were given and which refused, signed by the Judge, at the close of the instructions, p. 444.</p>

<p>From Lake Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Sylvester A. Smith against the Knickerbocker Ice Company. From a judgment for plaintiff for $1,500, defendant appeals.</p>

<p>Prom Dubois Circuit Court; E. A. Ely, Judge.</p> <p>Action by Fred H. Poetker, as receiver of the People’s State Bank, against Harve Tindle and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Noble Circuit Court; Joseph W. Adair, Judge.</p> <p>Action by Frank R. Hill against James B. Ward. From a judgment for defendant, plaintiff appeals.</p>

<p>From Elkhart Circuit Court; James 8. Dodge, Judge.</p> <p>Suit by John H. Doering against William Davenport. From a decree entered, plaintiff appeals.</p>

<p>1. Contracts. — Uncertain.-—Assumption- of Payment of Debts.— Sales. — Maxims.—A contract stipulating that the purchaser of a stock of goods assumes and agrees “to pay the outstanding bills for said place,” is not void for uncertainty, the maxim, “That is certain which can be rendered certain” applying- thereto, p. 4G9.</p> <p>2. Contracts. — Consideration.—Preamble.—Sales.—A contract reciting in its introduction that “Whereas it is the desire of said [vendor] to exchange his equity in a stock of goods and store to said [vendees] for said two respective pieces of real estate,” and further providing that the vendees shall pay the outstanding debts due for such goods, does not show that the provision for the assumption of the debts is void for the want of a consideration. p. 470.</p> <p>3. Contracts. — Assumption of Payment of Debts. — Judgment.— The purchasers of a stock of goods, assuming and agreeing to pay the debts due from the owner thereof, cannot be held liable where, in an action against such owner and such purchasers for one of such debts the judgment was in favor of such owner and against such purchasers, p. 471.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Suit by Walter G. Todd against Timothy L. Mills, George M. Todd being impleaded. From the judgment, plaintiff and another appeal.</p>

Prom Probate Court of Marion County (claim 8,894); Frank B. Ross, Judge. Action by Joseph Miller against Andrew J. Bailey, as administrator of the estate of Jehu Miller, deceased, and another. Prom a judgment for plaintiff, said administrator appeals.

<p>1. Railroads. — Negligence.—Complaint.—Common Count for Services of Surgeon Treating Injured Employe. — License.—Railroad companies may employ surgeons to treat injured employes; and a common count for services rendered is sufficient in an action by a surgeon who performed such services, an averment that the plaintiff was licensed being unnecessary, pp. 480,481.</p> <p>2. Railroads. — Claim Agents. — Ratification of Acts of. — Employment of Surgeons. — A railroad claim agent, or “assistant law agent,” having power to compromise claims, who authorized the employment of plaintiff to attend an injured employe, and whose settlement of such employe’s case by the payment of a certain sum and by the agreement to pay the doctors’ bills, was adopted and ratified, had authority to employ a physician, and the company is estopped to deny such authority, pp. 480,482.</p> <p>3. Railroads. — Claim Agents. — Employment of Surgeons. — Authority. — Whether a claim agent acts within the scope of his authority in employing a surgeon to attend an injured employe, is a question of evidence, p. 481.</p> <p>4. Contracts. — Statute of Frauds.- — Railroads.—Employment of Surgeon. — A railroad company’s contract of employment of a surgeon is not within the statute of frauds, because (1) it is the company’s debt, and (2) if not the company’s debt, it is a promise, founded upon a sufficient consideration, to pay another’s debt, the original debtor not being discharged, p. 481.</p> <p>5. Railroads. — Claim Agents. — “Law Agents.” — Authority.—Verdict. — Appeal.—A verdict, founded upon some evidence, that a railroad company’s “law agent” had authority to employ a surgeon to attend an injured employe, is conclusive on appeal, p. 483.</p>

<p>1. Fraud. — •Deeds.—•Infants.— Misrepresentations as to Age.— Husiand and Wife. — A deed executed by a married woman having the appearance of being, and believed by the grantees to be, more than twenty-one years old, and two subsequent deeds executed by such woman to confirm such former deed, expressly showing that she was twenty-one years old, constitute a fraud upon the grantees, such woman having received and failed to return the consideration received (§§3979, 3980 Burns 1908, §§2944, 2945 E. S. 1881). pp. 490,494.</p> <p>2. Deeds. — Consideration.—Married Woman. — A deed executed by a married woman in consideration of lands conveyed, at her request, to her husband and her father-in-law, upon an agreement by them subsequently to convey certain of such lands to her, is supported by a consideration moving to her. p. 493.</p> <p>3. Mortgages. — Infant Grantors. — A mortgage executed by an infant married woman’s grantee, ignorant of her age and believing her to be twenty-one years old, and which grantee received two subsequent ratifying deeds upon an express representation that the grantor was twenty-one years old, is valid and binding, there having been no return of the consideration to such grantee, p. 494.</p>

From Jay Circuit Court; John F. LaFollette, Judge. Suit by Peter Myer, as administrator of the estate of Sarah Myer, deceased, against Joseph M. Minch and others. From a judgment for defendants, plaintiff appeals.

From Cass Circuit Court; John 8. Lairy, Judge. Appeal by Weldon Webster from au order of tbe City of Logansport for tbe improvement of an alley. From a judgment for said Webster, the City of Logansport appeals.

<p>From Grant Circuit Court; E. J. Paulus, Judge.</p> <p>Suit by David H. Griffith and another against John S. Sprowl and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Decedents’ Estates. — Debts.—Sale of Beal Estate to Pay.— Petition. — A petition by an administrator to sell real estate to pay his decedent’s debts, which substantially complies with §2854 Burns 1908, §2338 R. S. 188.1, is sufficient, p. 519.</p> <p>2. Mortgages.- — Execution by Wife. — A mortgage executed by a wife to be valid must be signed by her husband, p. 519.</p> <p>3. Descent and Distribution. — Husband from Wife. — Estoppel.— A husband, unless estopped, inherits one-third of his deceased wife’s real estate free from her postnuptial debts, p. 519.</p> <p>4. Descent and Distribution. — Husband from Wife. — Debts.— Estoppel. — Mortgages.—A husband who joins his wife in executing a mortgage upon her real estate is estopped, at her death, to claim his one-third interest in such land, where such part is necessary to pay the mortgage, p. 520.</p> <p>5. Descent and Distribution. — Sales of Beal Estate to Pay Debts. —Including Husband’s Part. — Estoppel.—Where a surviving husband is made a party to a petition to sell real estate to pay his deceased wife’s mortgage debts, and he defaults, a decree being entered to sell the fee simple title, and giving the husband his portion out of the proceeds, and he accepts such portion, receipting the administrator in full for his share, he is estopped from claiming any interest in such real estate, pp. 520, 522.</p> <p>6. Descent and Distribution. — Husband and Wife. — Mortgage Debts. — The same rules, as to the payment of mortgage debts, applying to the inheritance by a wife from her husband apply to the inheritance of a husband from his wife. p. 521.</p> <p>7. Descent and Distribution. — Husband from Wife. — Mortgage Debts. — A husband’s one-third interest in his deceased wife’s real estate is liable, if necessary, for the payment of her mortgage, p. 521.</p> <p>8. Limitation of Actions. — Administrators’ Sales of Beal Estate. — A suit by a party for the recovery of real estate sold by an administrator must be brought within live years after the confirmation of such sale (§295 Burns 1908, subd. i, §293 B. S. 1881), even though the sale was void. p. 521.</p>

Prom Warrick Circuit Court; Roscoe Kiper, Judge. Pinal report of Joseph M. Hudspeth, as guardian of Allie R. Kitchen and another, to which Allie R. Kitchen and another except. Prom the judgment rendered, the guardian appeals.

<p>1. Master and Servant. — Factory Act. — Emery-Wheels.—Dust.— Burden of Proof. — In an action by a servant against his master for the injury of an eye by dust from an emery-wheel, the burden is upon the plaintiff to prove that he was a servant, that he was operating an. emery-wheel not properly provided with an exhaust-fan, that it was practicable to provide such exhaust-fan, and that the injury occurred in the manner alleged, p. 532.</p> <p>2. Words and Phrases. — ‘“Dust."—“Dust” ordinarily imports fine, dry particles of earth or other matter capable of being carried by the wind. p. 533.</p> <p>3. Master and Servant. — Factory Act. — Emery-Wheels.—“Dust."— The word “dust,” as used in §8029 Burns 1908, Acts 1899, p. 231, §9, requiring factory owners to provide proper exhaust-fans to carry away the “dust” created, includes particles of emery and iron, where iron is being ground on an emery wheel, pp. 533, 534.</p> <p>4. Master and Servant. — Factory Act. — Emery-Wheels.—Dust.— Instructions. — Question for Jury. — An instruction that the statute (§8029 Burns 1908, Acts 1899, p. 231, §9) requires that exhaust-fans for emery-wheels shall be of sufficient power to remove all dust, and that the jury must decide whether the alleged particles causing the injury complained of were “dust” within the meaning of the statute, is correct, p. 534.</p> <p>5. Master and Servant. — Factory Act. — Emery-Wheels.—Dust.— Instructions. — Presumptions.—Verdict.—Jury.—A general verdict •for plaintiff in an action for injury to an eye caused by dust from an emery-wheel, is a finding that plaintiff’s eye was injured by dust, and, in the absence of an instruction technically defining “dust,” the presumption is that the jury understood the word in its ordinary sense, p. 534.</p>

<p>1. Specific Performance. — Sales.—Description of Lands. — Fraud. —Complaint.—A complaint alleging that defendants sold to the plaintiff all of the lots owned by them within a certain enclosure except one lot in the southwest comer and possibly two in the southeast corner, that in executing the deed they omitted certain other lots which they owned, that the plaintiff paid the agreed price, and that as soon as he ascertained the facts he demanded a conveyance of the remainder, which was refused, is sufficient, the description of the land contracted for being capable of ascertainment. p. 537.</p> <p>2. Specific Performance.— Sales of Lands.— Consideration.■— Fraud.- — The fact that vendors contracted to sell certain lots for less than their market value does not justify them in fraudulently refusing to include all of such lots in their deed. p. 539.</p> <p>3. Specific Performance.— Heal Property.— Contracts. — ■ Inadequacy of ConsUlijration. — Specific performance lies to enforce contracts for the sale of real estate; but inadequacy of price can be invoked as a defense only so far as it furnishes evidence of fraud as a fact. p. 539.</p> <p>4. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 539.</p>

Prom Hamilton Circuit Court; Ira W. Christian, Judge. Action by Melvin Newby, as administrator of the estate of Peter Cruse, deceased, against the Indianapolis and Northwestern Traction Company. From a judgment for plaintiff, defendant appeals.

<p>Prom Lake Superior Court; Harn; B. TutlviU, Judge.</p> <p>Action by Louis Klitzke and others against the Western Union Telegraph Company. 'From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Theory.—Changing of, on Appeal. — The theory of a complaint adhered to in the trial court cannot be changed on appeal, p. 556.</p> <p>2. Contracts. — (las and Oil. — Breach.—Election.—Complaint.—A complaint for rentals, under a contract providing that the plaintiff “shall have, free of expense, gas, * * * to light and heat the dwellings on the premises, * * * free of cost, within one day from this date, or in lieu thereof, the sum of $20 yearly in advance,” need not allege that the leased premises had dwellings thereon, the contract giving to the plaintiff an option to take either the gas, or the rental, pp. 556,560.</p> <p>3. Contracts. — Qas and Oil. — Breach.—Complaint.—A complaint for rentals under a gas and oil contract for the year ending February 12, 1906, alleged to have been demanded under a contract executed February 13, 1899, the contract providing that “a well shall be drilled within two years from this date, or the royalty [$100, annually] paid to first party,” is sufficient, where it shows that no well has been sunk, the date of the contract showing that the first two years have expired, p. 557.</p> <p>4. Contracts. — Qas and Oil.■ — Construction.—A gas and oil contract providing in clause one that a well shall be sunk within twelve months, or there shall be paid “a yearly rental of $30 in advance until said well is drilled,” and in clause three, that “should gas be found, second party agrees to pay to first party $100, yearly” for each used well, and in clause four, that free gas shall lie furnished to the owner, “or in lieu thereof, the sum of $20 yearly in advance,” and in clause seven, that “a well shall he drilled within two years from this date, or the royalty paid to first party,” gives the royalty under clause three only when a well is used, gives the royalty of $100 yearly, when no well is sunk within two years, and gives the rental of $30 under clause one until a well is sunk, after which clause one is superseded by clause four, giving free gas, or the rental of $20, yearly, pp. 557, 558, 561.</p> <p>5. Contracts. — Construction.—Parts.—Contracts, where possible, will be construed so as to give effect to all parts thereof, p. 558.</p> <p>C. Contracts. — Operation of. — “Within One Day from this Date." —The words “within one day from this date,” as used in a gas and oil contract providing that the landowner should have gas, “free of cost, within one day from this date, or in lieu thereof, the sum of $20, yearly, in advance,” refer to the date of the completion of a well, and not to the date of the contract, p. 559.</p> <p>7. Contracts. — Construction.—Ambiguities.—Where a contract is ambiguous, the circumstances will all be considered as well as the construction placed thereon by the parties themselves, in determining the true meaning thereof, p. 559.</p> <p>S. Words and Phrases.' — “Royalty.”—Gas and Oil Contracts.— The word “royalty,” as used in gas and oil contracts, ordinarily imports a share of the product or profit reserved by the owner for permitting another to use the property, p. 560.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Suit by the Town of Remington against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a decree for plaintiff, defendant appeals.</p>

Prom Warrick Circuit Court; Boscoe Kiper, Judge. Pinal report by Matilda Roberts, as administratrix of the estate of Monroe Roberts, deceased, to which William Dimmett and others except. Prom a judgment for the ex-ceptors, the administratrix appeals.

<p>Prom Probate Court of Marion County; Frank B. Boss, Judge.</p> <p>Action by Sylvester P. Wilson against Andrew J. Bailey, as administrator of the estate of Jehu Miller, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal.-— Affirmance.— Weighing Evidence.— The Appellate Court will not weigh conflicting evidence, nor consider any testimony except that which sustains the verdict, p. 574.</p> <p>2. Schools. — • Teacher.— Implied Qualifications. — ■ Con,tracts. — - A school teacher in accepting employment impliedly agrees that he lias the requisite knowledge to teach the prescribed branches, and that ho has the ability, in a reasonable degree, to impart that knowledge to pupils, p. 575.</p> <p>Senooi.fi. — Teachers.— “Incompetent.”— Discharge.— Justification. — A school board is .-justified, in discharging a school teacher who is unable to maintain discipline in his school, such teacher being “incompetent.” p. 575.</p>

<p>1. Mechanics’ Liens. — Oil I Veils. — Coal Used m Sinking. — Judicial Notice. — Under §8295 Bums 1008, Acts 1899, p. 569, providing that “all persons performing labor or furnishing material or machinery * * * may have a lien” upon the structure “for which they may have furnished material or machinery of any description, * * * to the extent of the value of any labor done, material furnished or either,” a person who furnishes coal to an independent contractor to be used in generating power to sink an oil well, for defendant, has no right to a mechanic’s lien upon such well or its fixtures, the court taking judicial notice that such coal did not actually become a part of such well or fixtures. Haskell v. Gallagher, 20 Ind. App. 224, overruled, p. 579.</p> <p>2. Mechanics’ Liens. — Statutes.—Construction.—The statute providing for the creation of mechanics’ liens (§8295 Burns 1908, Acts 1899, p. 569) is strictly construed in determining what persons are entitled to the benefits thereof, p. 579.</p>

<p>1. Carriers.— Railroads.— Passengers.— Alighting. — Complaint.— A complaint alleging that the plaintiff was a passenger on defendant railroad company’s train, that the brakeman announced plaintiff’s destination and opened the door, that the plaintiff arose and walked to the door as the train came to a stop, that the train stopped suddenly, causing plaintiff to catch the door facing to prevent his falling, that the stop caused the door to close, catching plaintiff’s hand and inflicting injury, that such injury was caused by the carelessness of defendant in opening the door, in not fastening it securely and in suddenly stopping the train, states a cause of action, p. 5S1.</p> <p>2. Carriers.- — Passengers.—Railroads.—Care.—Railroad companies are required to use the greatest practicable care toward their passengers. p. 583.</p> <p>3. Carriers.— Passengers.— Alighting.— Railroads.— Negligence. —Contributory.—Question for Jary. — Whether a passenger is contributoriiy negligent in alighting from a train, and whether the railroad company was negligent in inviting him to alight, are questions for the jury. p. 585.</p> <p>4. Carriers.— Passengers.— Alighting.— Railroads.— Complaint. —Paragraphs.—Instructions.—Where one paragraph, alleged that the plaintiff was injured while standing in the door of defendant railroad company’s coach, and another that he was on the platform, the injury in each ease being caused by the closing of the door upon his hand, an instruction that the paragraphs were substantially the same is not prejudicial to the company, p. 585.</p> <p>5. Carriers. — Railroads.—Passengers.—Stepping Upon Platform of ■ Coach. — Statutes.—A passenger on a railroad train, who goes upon the platform of a car at the invitation of the brakeman, preparatory to alighting, and who is there injured because of the company's negligence, is not xirecluded from a recovery by §5810 Burns 190S, §8928 R. S. 1881, prohibiting a recovery, where the passenger went upon the platform in violation of the posted rules of the company, p. 585.</p> <p>6. Trial. — Instructions.— Inconsistency.— Estoppel.— Appellant is estopped to complain of inconsistencies in the instructions, where such inconsistencies were caused by erroneous instructions given at its request, p. 585.</p> <p>7. Carriers. — Accidents to Passengers. — Presumptions.—Burden of Proof. — Carriers are required to remove the presumption of negligence arising from the happening of an accident to a passenger, p. 586.</p>

<p>1. Descent and Distribution. — Lands Conveyed by Gift. — Statutes. —Under §2997 Bums 1908, §2473 R. S. 1881, lands conveyed to an intestate by gift, or in consideration of love and affection, descend to the donor, if living, where such intestate leaves no husband, or wife, or children or the descendants thereof, p. 589.</p> <p>2. Descent and Distribution. — Husband to Wife. — Under §3028 Burns 1908, §2490 R. S. 1881, a surviving widow takes her intestate husband’s entire estate, where he left no child, father nor mother, p. 590.</p> <p>3. Statutes. — Construction.—Aids to. — The primary purpose in construing a statute is to determine the intent of the law-making-body, and as aids in determining such intent, the court may consider the history of legislation on such subject, the purpose to be accomplished, and the construction courts have given to similar language, p. 590.</p> <p>4. Descent and Distribution. — Husband to Wife. — Lands Conveyed by Gift. — Where an intestate leaves no children, or their descendants, father, or mother, lands conveyed to him by gift descend to his widow (§3028 Burns 1908, §2490 R. S. 1881), unless the donor survived the intestate, the donor’s heirs not being included in the statutes (§2997 Burns 1908, §2473 R. S. 1881). p. 591.</p>

Prom Montgomery Circuit Court; Jere West, Judge. Street assessment by the City of Crawfordsville against Eliza I. Brown. Prom a judgment, on appeal to the circuit court, reducing the amount thereof, the city appeals.

<p>Prom Starke Circuit Court; John G. Nye, Judge.</p> <p>Suit by John G. Lobstein and others against Andrew H. Dressel and others. Prom a decree for plaintiffs, said Dressel appeals.</p>

<p>1. Appeax,. — Briefs.—Waiver.—Points not discussed are waived, p. 603.</p> <p>2. Contracts. — Gas and Oil. — The object of a contract for the sinking of oil and gas wells is to explore the land for oil and gas, and to develop the production thereof, p. 603.</p> <p>3. Contracts. — Options.—Gas and Oil. — Under a contract providing that the contractor shall “drill an additional well each sixty days, or pay $1 per day for each and every day’s delay over that time until three wells are drilled,” and that the contractor “shall have the right to * * * cancel or annul this contract or any part thereof at any time,” such contractor may not retain the gas and oil, and operate the two wells drilled, and cancel the contract so far as it affects other parts of the real estate, or requires the sinking of a third well. pp. 603, 604.</p> <p>4. Contracts. — Oil and Gas. — Heal Property. — Vested Interests.— A contractor who sinks oil or gas wells under a contract giving to him a part of the gas or oil discovered, upon the discovery and development thereof, acquires a vested interest therein, p. 604.</p>

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not' discussed are waived, p. 607.</p> <p>2. Insurance. — Policies.—Voidable.—Answer.-—In an action on a fire policy, an answer alleging that the assured, contrary to the company’s rules of which he had knowledge, placed oil and gasoline in his barn, that lie left stoves burning in such barn, and that such stoves set the barn on fire, thereby destroying it, is insufficient, there being no showing of a rescission of the contract because of the alleged breach, or any return, or offer of return, of the premiums or assessments received, p. 607.</p> <p>3. Insurance. — Fire Policies. — Violation of Buies by Assured.— Negligence. — -Wilfulness.—Answer.—An answer, in a fire insuranee case, that the plaintiff placed gasoline and oil stoves in the insured barn, and that he negligently and carelessly left them burning, in violation of his contract, and that he “wilfully and carelessly” left them burning, by reason whereof the barn was destroyed, does not show a wilful or intentional burning of the barn, and is therefore insufficient, p. 608.</p>

<p>From Marion Circuit Court (15,574); Henry Clay Allen, Judge.</p> <p>Action by John Shea against tbe Indianapolis Southern Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Tipton Circuit Court; J. F. Elliott, Judge. Action by Sidney IÍ. Ganiard, as administrator of the estate of James W. Lee, deceased, against the Indiana Natural Gas and Oil Company. Prom a judgment for plaintiff, defendant appeals.

<p>1. Pleading. — Complaint.—Demurring to Complaint After Anstoer. —Warner.—The filing of a demurrer to a complaint after the filing of an answer raises no question, where the answer is not first withdrawn by leave of court, p. 620.</p> <p>2. New Trial. — Excessive Recovery. — Motion to Modify Judgment. —Contracts.—Where the amount of recovery, on a breach of contract, was too large, the question is properly raised by making such amount a ground for a new trial; and it is not necessary to move to modify the judgment, p. 621.</p> <p>3. Suretyship and Guaranty. — Bonds.—Debts Contracted Prior to Execution of. — Sureties and guarantors who agree to “guarantee the payment in full of any and all true accounts which may at any time be due * * * on account of merchandise shipped to” their principal, are not liable for preexisting accounts for goods received, p. 621.</p>

<p>1. Nuisance. — Maintenance of Saloon. — Complaint.—A complaint attacked for the first time on appeal, alleging that defendants maintained a disorderly drinking saloon, offensive to the public, and privately injurious to the plaintiff, is sufficient, since it states facts sufficient to bar another suit for the same cause, p. 624.</p> <p>2. Nuisance. — Damages.—Saloon.—Evidence.—Evidence that the treasurer of a Milwaukee brewing company, residing at Milwaukee, owned a building in the business district of Indianapolis and rented it through a local agent to a saloon-keeper for saloon purposes, that his brewing company furnished its beer to such saloon-keeper who sold only that brand, that the owner discharged his rental agent and substituted as his agent the brewing company’s agent, and that the saloon was afterwards carried on by the brewing company does not support a judgment for damages, nor a decree of injunction, pp. 624, 626.</p> <p>3. Nuisance. — Saloon.—Location.—Business District. — A saloon located in the business district does not constitute a nuisance per se. p. 625.</p> <p>4. Nuisance. — Damages.—Saloon.—Landlord.—Notice.—A landlord who rents property for saloon purposes is not liable for damages caused by the unlawful operation of a saloon thereon, unless he had notice of the misconduct; and such notice must be alleged and proved, p. 625.</p> <p>5. Evidence. — Presumptions.—Burden of Proof. — Every one is presumed to obey the law, and he who alleges against another an evil act or an evil intent has the burden of proving it. p. 626.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Henry C. Kennedy against the Indiana Match Company. From a judgment for plaintiff for $2,750, defendant appeals.</p>

<p>1. Carriers. — Passengers.—Contributory Negligence. — Instructions. —Jury.—An instruction that if the plaintiff received any of her alleged injuries by reason of the collision of two of defendant interurban railroad company’s cars, while she was a passenger, and that if, at the time of the collision, she were seated and had nothing to do with causing the collision, she would not bo guilty of contributory negligence, is not an invasion of the province of the jury, nor was it prejudicial to defendant, p. 634.</p> <p>2. Carriers. — Passengers.-—Injuries.—Aggravation of, by Passengers. — Contributory Negligence. — The subsequent aggravation of an injury received by a passenger because of the carrier’s negligence does uot constitute contributory negligence, p. 634.</p> <p>3. Carriers. — Passengers.—Injuries Exciting Predisposition to Disease. — Instructions.—An instruction that if the plaintiff’s predisposition to disease was developed exclusively by injuries negligently Inflicted by defendant interurban railroad company, while* alie was a passenger upon defendant’s ear, she is entitled to recover, is not harmful, p. 635.</p> <p>4. Trial. — Inslrueiiuus.—Inapplicability.—Instructions not applicable to the evidence should not be given, p. 635.</p> <p>5. Trial. — Instructions.—Duplication.-—An instruction requested, covered by one given, should be refused, p. 636.</p> <p>6. Carriers. — Passengers.—Accidental Injuries. — A carrier is not liable for purely accidental injuries sustained bj a passenger, p. 636.</p> <p>7. Carriers. — Passengers.—Injuries.—Wet Rails. — Interurban railroads are bound to anticipate, and take precautions to avoid, the dangers due to wet tracks and climatic conditions, p. 636.</p> <p>8. Trial. — Instruct ions. — Argumentative.—Argumentative instructions are properly refused, p. 637.</p> <p>9. Damages. — Bxcessive—negligence.—A judgment for $4,000, in favor of a woman thirty-five years old, permanently injured in her health by the negligence of an interurban railroad company, while she was a passenger on its car, is not excessive, p, 637.</p>

<p>1. Nuisance. — Open Sewers. — Cities.—Complaint.—A paragraph of complaint alleging that defendant city maintained an open ditch into which it discharged sewage, that such ditch was in the rear of plaintiff’s lot and that offensive odors arose therefrom, to plaintiff’s damage, is sufficient, though it fails to allege that it was defendant’s duty to keep such ditch clean, p. 640.</p> <p>2. Nuisance. — Definition.—'“Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property,” is a nuisance (§291 Burns 1908, §289 R. S. 1881). p. 641.</p> <p>3. Nuisance. — Action.—Parties.—Any person whose property is injuriously affected, or whose personal enjoyment is lessened, by a nuisance, may maintain an action therefor, p. 641.</p> <p>4. Nuisance. — Sewers.—Complaint.—A paragraph of complaint alleging that defendant city discharged sewage into an open ditch at the rear of plaintiff’s lots, rendering them less desirable for building purposes, and -worthless for garden purposes, to plaintiff’s damage in the sum of $500, is sufficient, p. 641.</p> <p>5. Nuisance. — Sewers.—Injury to Lots. — Complaint.—A paragraph of complaint alleging that defendant city discharged sewage into an open ditch at the rear of plaintiff’s lots, rendering them less desirable for building and garden purposes, and that plaintiff purchased one of such lots on the day of the filing of the action, is sufficient, since the other lots were alleged to be damaged, p. 641.</p> <p>6. Appeal. — Errors Relied Upon. — Waiver.—Where appellant relies upon errors in the complaint for a reversal, an alleged error in the overruling of the motion for a new trial may be regarded as waived, p. 642.</p>

<p>Prom Starke Circuit Court; William A. Foster, Special Judge.</p> <p>Suit by Jennie Green and another against Nellie Selvage and others. From a decree for plaintiffs, defendants appeal.</p>

<p>Prom Superior Court of Marion County (76,858); Pliny W. Bartholomew, Judge.</p> <p>Cross-complaint hy Emma Peters against Edward Peters. Prom a decree for cross-complainant, cross-defendant appeals.</p>

<p>1. Wills. — Codicils.—Effect.—The purpose of a codicil is to enlarge, or restrain, but not to revoke, or supersede, the provisions of a will. p. 647.</p> <p>2. Wills. — Construction.—Intention.—How Ascertained. — In construing a will the courts will consider only the language used in the will. pp. 648, 049.</p> <p>3. Wills. — Derise to Devisee and His Heirs. — Bule in Shelley’s Case. — A devise to a devisee and his heirs, either mediately or immediately, gives a fee-simple title to such devisee, p. 648.</p> <p>4. Estates. — Fee-Tail.—Statutes.—Fee-tails are by statute (§3994 Burns 1908, §295S R. S. 1881), made fee-simple titles, p.649.</p> <p>5. Wills. — “Heirs.”—The term “heirs,” as used in a will, is a word of limitation, p. 649.</p> <p>G. Wills. — CodicÁls.—Construction.—Estates.—“Heirs of’ Devisee. —A will devising certain real estate to the devisee “in fee simple,” followed by a codicil revoking and canceling such devise and giving in lieu thereof the same land “to vest in said [devisee] at [testator’s] death for a period of natural life of said [devisee] and at the death of said [devisee] the remainder and the fee simple of said described real estate * * * shall vest in the heirs of” said devisee, gives to such devisee a fee simple title, p. 649.</p>

<p>1. Peeading. — Complaint.—Amendment.—Limitation of Actions.— An amended complaint ordinarily relates to the time of the filing of the original complaint, but this role does not apply, where it states a new cause of action, p. 654.</p> <p>2. Action.' — Cause of. — What Constitutes.- — A cause of action consists of a right of the plaintiff and a breach of such right by the defendant, p. 654.</p> <p>3. Pleading. — A mended Complaint. — Few Cause of Action. — Tests. —An amended complaint ordinarily contains a new cause of action, (1) where the new allegations deprive defendant of any defense which he had to the original cause, (2) where the evidence establishing the original, will not establish the new, (3) where the new allegations, if in reply, would have constituted a departure, (4) where the new allegations set up a title not before asserted, and (5) where a judgment on the original complaint would not constitute a bar to the amended complaint, p. G54.</p> <p>4. Master and Servant. — Electric Light Companies. — Failure to Insulate. — Amended Complaint. — Failure to Turn Off Current.— Limitation of Actions. — Where a servant, in an original complaint, alleged that defendant electric light company negligently failed to insulate its wires, thereby injuring him, his subsequent amendment of such complaint by adding the averment that - such company negligently failed to turn off the current from its wires, thereby injuring him, does not introduce a new cause of action against which the statute of limitations would constitute a bar, since the facts alleged in either complaint would bar another action for the same cause, pp. 655, 657.</p> <p>5. Appeal. — Briefs.—Presenting Record. — Waiver.—Where appellant questions the answer, he should set it out in his brief, but the appellee’s failure to call attention thereto constitutes a waiver, on its part, of the defect, p. 655.</p> <p>6. Appeal. — Briefs.—Failure to Comply With Rules. — Waiver.— The question of the failure of appellant to comply with the rules of the Appellate Court in presenting questions in his brief, must be presented at the earliest opportunity; and the filing of a brief on the merits constitutes a waiver of the defect, p. 656.</p> <p>7. Appeal. — Briefs.—Rules.—Waiver.—The Appellate Court may, in its discretion, refuse to consider alleged errors not properly presented in the appellant’s brief, p. 657.</p> <p>8. Appeal. — Rehearing.—Questions not presented at the original hearing cannot be presented on rehearing, p. 657.</p> <p>9. Master and Servant. — Electric Light Company. — Failure to Insulate. — Complaint.—A complaint alleging that defendant electric light company negligently failed to insulate its wires, that it knew thereof and the plaintiff lineman did not, and that in performing his work the plaintiff was injured thereby, states a cause of action, p. 658.</p> <p>10. —Pleading.—Answer.—Partial.—A paragraph of answer, sufficient as to a part of the complaint, is bad, where it is addressed to the entire complaint, p. 658.</p>

<p>Appeal. — Weighing Evidence. — Contracts.—Core Drilling. — Where the defendant company hired the plaintiff to do certain core drilling at certain prices, and there was some evidence that, under defendant’s direction, and without defendant’s objection, he performed the work, defendant cannot escape payment therefor on the ground that the method of doing the work was somewhat changed.</p>

<p>Appeax.— Weighing Evidence.— Breach of Warranty.— Waiver.— Vendor and Purchaser. — Whether a purchaser waived his right of action against his vendor for a breach of warranty by assisting such vendor to become guardian of his children and, through such guardian, receiving an ineffective conveyance of their shares, is a question for the trial court, whose judgment upon the weight of the evidence is conclusive on ap>peal.</p>

Prom Greene Circuit Court; Charles E. Henderson, Judge. Suit by Sarab J. Pethtel and another against William T. Pethtel and others. Prom a decree for plaintiff and certain defendants, William T. Pethtel and others appeal.

<p>From Adams Circuit Court; Bichará K. Erwin, Judge.</p> <p>Action by Daniel B. Ninde against Richard Klein. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Intoxicating Liquobs. — Illegal Sales. — Loss of Support. — Proximate Cause. — Instructions.—An instruction that before there can be a recovery for loss of support caused by the illegal sale of liquors it must be shown that such sale was the proximate cause of such loss, is erroneous, p. 675.</p> <p>2. New Trial. — Designating Instructions Questioned. — A motion for a new trial assigning as one reason the giving of certain numbered instructions, and, as another, the giving of certain instructions requested by plaintiff, sufficiently designates the questioned instructions, where two sets of instructions were presented, one by plaintiff, the other by defendants, p. 675.</p> <p>3. Intoxicating Liquobs. — Illegal Sales. — Loss of Support. — Proximate Cause. — Conflicting Instructions. — Certain instructions that the alleged illegal sale of liquors must, to warrant a recovery for loss of support, be the xiroximate cause of such loss, are not cured by others stating that a recovery is warranted, if such sale was the direct or remote result of such loss. p. 676.</p>

<p>Prom Ilenry Circuit Court; Ed Jackson, Judge.</p> <p>Action by Harley A. Gouldsberry against John W. Wise-man. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Tbusts.— Certificates of Deposit.— Trustees.— A certificate oí deposit given by a person to his wife to be delivered, at his death, to the beneficiary, constitutes a trust fund in favor of such beneficiary. p. 682.</p> <p>2. Evidence. — Declarations.—Trustees.-—Declarations of a wife as to how she came into possession of, and the purpose for which she holds, a certain certificate of deposit given to her by her husband, to be delivered at his death, to a third person, are admissible in determining tbe real beneficiary, p. 682.</p> <p>3. Evidence.— Declarations of nominal Purchaser. — ■ Resulting Trusts. — Declarations of a nominal purchaser, while he holds the title to the lands in controversy, are admissible to establish a resulting trust in favor of third persons. p. 682.</p> <p>4. Evidence. — Declarations of Trustee After Expiration of Trust.— Declarations of a trustee, after parting with the possession of the subject-matter of the trust, are not admissible to show the rightful beneficiary, p. 683.</p>

<p>1. Trial. — Verdict,.—Interropatories.—Conflict.—A general verdict for tlie plaintiff constitutes a finding in bis favor upon all of the issues, and answers to interrogatories to the jury overturn such verdict only when they are irreconcilable therewith upon any evidence admissible within the issues, p.686.</p> <p>2. Tkiaj,.'— Interrogatories.— Conflict.— Conflicting interrogatories nullify one another, p. 387.</p> <p>3. Tbekpass.— General Verdict.— Interrogatories. — ■ Reversal.— Mandate. — Where a complaint alleged, among other acts of trespass, that the defendant authorized the cutting of plaintiff’s trees and the destruction of his wheat and fences, to his damage, answers to interrogatories which fail to negativo all of such acts will not overturn a general verdict for the plaintiff; and a judgment for the plaintiff may he ordered on a reversal. Rabb, P. J., and Myers, C. J., dissent, p. 087.</p>

<p>Prom Scott Circuit Court; Joseph H. Shea, Judge.</p> <p>Action by James G. Bottorff against Thomas E. Bottorff. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Dubois Circuit Court; John Tj. Bretz, Judge. Action by John W. Ragle and others against Eliza J. Dedman and others. From a judgment for defendants, plaintiffs appeal. On motion to dismiss appeal.

<p>Appeal.^-Omission of Evidence from Bills of Exceptions. — -Yew Trial. — -An assignment that the court erred in overruling appellant’s motion for a new trial cannot be considered, where the questions depend upon the evidence, and some of the evidence pertaining thereto is affirmatively shown by the bill of exceptions to be omitted.</p>

<p>1. Railroads.- — Fences.—Notice.—A notice given by a landowner, under §544S Burns 1908, Acts 1885, p. 224, §2, providing for tbe construction of a new fence, is proper, where the old fence was so out of repair that a new one was needed, p. 097.</p> <p>2. Ai>rnAL. — Affirmance,—Penalty.—The Appellate Court may, on affirming a judgment, impose a penalty, p. 698.</p>

<p>From Pulaski Circuit Court; F. J. Vurpillat, Special Judge.</p> <p>Action by John G. Boyles and another against Julia T. Wirrick and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>Railroads. — Fencing Rights of Way. — Statutes.—The object of laws requiring railroad companies to fence their rights of way, is for the protection of life and property.</p>

<p>Prom Dekalb Circuit Court; Emmet A. Bratton, Judge.</p> <p>Action by Perry Muhn and another against the Vandalia Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Wills.— Construction.- — Intention.—-A will should be so construed as to carry out the intention of the testator, and the courts in doing so will consider all parts thereof, p. 700.</p> <p>2. Wills. — -Conditions.—Failure of. — A provision in a will that if the devisee should die before lie becomes twenty-one years old the property shall go to certain persons, will not be considered, where such devisee attained such age. p. 707.</p> <p>3. Wills.— Language of.— “Descend.” — The word “descend,” as used in a will providing that “if said John Horsely Hayes shall die leaving children, the farm shall descend to them,” means to “go to.” p. 707.</p> <p>4. Wills,— Devise of Fee Simple.- — Subsequent Words Cutting Down. — Where a provision of a will gave to the devisee a fee-simple Utle, a subsequent clause, to cut down such estate, must use language equally clear and specific, limiting such estate, p. 70S.</p> <p>5. Wills. — Devise of Feo Simple. — Limiting.—A will in form: “I will and bequeath unto my grandson * * * tlie farm on which I now live,” and further providing in a subsequent clause that if such grandson should “die before he attains 1he age of twenty-one years, the property hereby willed to him shall be equally divided between my two children” and that if such grandson should “die leaving children, the farm shall descend to them, but it is not to be sold or disposed of by said” grandson, gives to such grandson a fee simple p. 700.</p>

From Clark Circuit Court; H. C. Montgomery, Judge. Suit by Clara Copeland and another against William H. Bruning and another, as trustees under the will of John P. Bruning, deceased. Prom a judgment for defendants, plaintiffs appeal.

<p>From Oass Circuit Court; Joseph M. Rahh, Special Judge.</p> <p>Action by Charles "M. Peek against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for $4,000. defendant appeals. (Transferred from Appellate Court, 43 Ind. App. 316. Transferred back to the Appellate Court, 172 Ind. 19. Retransferred to the Supreme Court, 44 Ind. App. 02. Retransferred to the Appellate Court, 172 Ind. 502.)</p> <p>(The appellee having died, his administrator and the appellant, compromised the case; and the judgment was reversed by the Supreme Court on a confession of error in accordance with such agreement. — Reporter.)</p>

<p>From Porter Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by Bessie Cronin against Arthur F. Zimmerman. From a judgment for defendant, plaintiff appeals.</p>

From Martin Circuit Court; H. Q. Houghton, Judge. Action by the State of Indiana, on the relation of Ida Noelting and others, against August Baker and others. From a judgment for plaintiff, defendants appeal.