Volume 46 — Indiana Appellate Court Reports

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

<p>Prom Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by "William H. Broyles against tbe PittsburgColumbia Oil and Gas Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Clark Circuit Court; E. C. Montgomery, Judge. Action by Ella Dieckman, as administratrix of the estate of George W. Dieckman, deceased, against the Louisville and Southern Indiana Traction Company. From a judgment for defendant, plaintiff appeals.

<p>Prom Tippecanoe Circuit Court; Richard P. De Hart, Judge.</p> <p>Suit by Albert L. Emens against Alice A. Emens. Prom a decree for plaintiff, defendant appeals.</p>

From Probate Court of Marion County (8,517) ; Merle N. A. Walker, Judge. Petition by Edwin S. Jaqua, as administrator of the estate of Bayard Gray, deceased, to which John Gray and others object. From an order denying the prayer thereof, the administrator appeals.

<p>1. Bills and Notes. — Chattel Mortgages. — Contract to Dismiss Suit Upon. — Answer.—In a suit by a mortgagee to enforce the payment of certain notes and a chattel mortgage securing them, an answer that a third person, subsequent to the bringing of the suit, had contracted with the mortgagee to pay to him a certain sum in consideration of the cancelation of the pending suit, and an additional sum for the discharge of the mortgage debt, which contract had been accepted by the mortgagors, and that such third person, in pursuance thereof, had purchased from the mortgagors their equity in the mortgaged property, and had offered to pay to the mortgagee the contract price, which was refused, and that he is still ready and willing to carry out such contract, states a complete defense, pp. 27, 29.</p> <p>2. Dismissal. — Cancelation.—Con-tracts.—A contract for the cancelation of a suit imports a dismissal thereof, p. 28.</p> <p>3. Feaud. — Contracts for Benefit of Third Persons. — Violation.— The refusal by a party who contracts for the benefit Of a third person, to carry out such contract, constitutes a fraud upon such third person, p. 28.</p> <p>4. Estoppel. — Violation of Contract for Benefit of Third Person.— Action. — Dismissal.—A mortgagee who files suit for foreclosure and who agrees with a third person to accept a certain sum in dismissal of the suit and an additional sum in discharge of the mortgage debt, such third person, in pursuance thereof, purchasing from the mortgagors their equity in the property, is estopped to proceed with his suit, where such third person offers to pay the agreed amounts, p. 2S.</p> <p>5. Contracts. — Benefit of Third Persons. — Consideration.—A contract for the benefit of third persons need not be supported by a consideration moving from such third persons, p. 2S.</p> <p>6. CoNTRAors. — Dismissal of Suit. — Costs.—A mere contract to dismiss a suit implies that the plaintiff will pay the costs up to the time of dismissal, p. 29.</p>

<p>Prom Martin Circuit Court; Hileary Q. Houghton, Judge.</p> <p>Action by Nancy E. Gilkison against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Elkhart Circuit Court; J ames 8. Dodge, Judge. Action by Edward S. Laudeman, as administrator of the estate of Jessé Leeper, deceased, against Russell & Co. and others. Prom a judgment for defendants, plaintiff appeals.

<p>Prom Noble Circuit Court; Joseph W. Adair, Judge.</p> <p>Action by Peter Dolan, as administrator of the estate of John E. McKee, deceased, against the Prudential Insurance Company of America. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales. — Conditional.—Retention of Title. — Assignment of. Rights Under Contract. — Bills and Notes. — Where a vendor sells an article, the vendee by a written contract agreeing that title thereto should not pass until the final payment of the notes given therefor, and the notes given contained no provision in reference to title, an assignment of such contract and notes vested in the assignee all the rights and title of the vendor in and to such article, p. 46.</p> <p>2. Sales. — Conditional.—Assignment of Contract Rights. — Delivery. — The assignment of a contract retaining title to an article conditionally sold, together with the notes given therefor, constitutes a sufficient delivery to pass all of the vendor’s rights to the property, p. 4S.</p>

<p>1. Animals. — Dogs.—Killing Sheep. — Townships.—Complaint.—A complaint for damages on account of sheep killed by dogs, need not aver that the defendant township has money with which to pay such damages, such claims being payable in order of presentation as the money becomes available, p. 51.</p> <p>2. Animals. — Dogs.— Sheep.— Ownership.— Admissions.— An answer by a township, in an action against it to recover damages for sheep killed by dogs, that certain sheep of plaintiff’s were killed by dogs, as alleged in the complaint, and that defendant tendered to plaintiff $120 for his damages, and brought such tender into court for plaintiff’s benefit, sufficiently admits that the plaintiff was the owner of the sheep, p. 52.</p> <p>3. Appeal. — Harmless Error. — Evidence.—Admissions.—Failure to prove a fact is not harmful, where defendant expressly admitted such fact. p. 52.</p> <p>4. Animals.— Dogs.— Sheep.— Allegations.— Instructions. — An instruction that the only question in a case of damages for sheep killed by .dogs was that of damages, and that the burden was upon the plaintiff to prove the amount of damage sustained, is not prejudicial, where it was agreed that the plaintiff had- filed his claim for damages and that defendant had tendered the amount it thought to be correct, and where all of the formal averments of the complaint were testified to by the plaintiff’s witnesses, and stood wholly uncontradicted, p. 52.</p> <p>5. Appeal. — Record.—Contradiction.—Instructions.— Modifications. —An assignment that the court erred in modifying a certain instruction is not available, where the record in one place shows that it was modified, and in another, that it was given as requested. p. 53.</p> <p>6. Animals.— Sheep. — ■ Pedigree.— Damages.— Evidence.— In an action for damages for sheep killed by dogs, evidence that such sheep were pedigreed and useful for breeding purposes, is admissible, the damages recoverable being their highest market price for any purpose, p. 53.</p> <p>7. Animals.— Sheep.— Killing of, by Dogs.— Damages. — • How Shown. — To recover damages for sheep killed by dogs, individual damages, and not damages to the flock as a whole, must be shown., p. 54.</p> <p>8. Animals.— Sheep.— Damages.— Evidence.— Where there was uncontradicted evidence that the loss sustained by the killing and maiming of certain sheep was in excess of the verdict, the fact that damage sustained by the worrying and overheating of others was not specifically shown, is not reversible error, p. 54.</p>

<p>1. Sales. — Retention of Title. — Wholesalers.—Retailers.—A wholesaler who sells goods to a retailer, retaining title thereto so long as anything shall be unpaid thereon, does not impliedly authorize a sale thereof in bulk by such retailer to another, so as to pass the title thereto, p. 57.</p> <p>2. Appeal.-— Weighing Evidence. — - Verdict.-— Where there was a conflict in the evidence on an issue, the verdict returned is conclusive on appeal, p. 59.</p> <p>3. Sales. — Manufacturers.—Retailers.—Retention of Title. — Third Persons. — A manufacturer who retains title to goods furnished to a retailer to be sold in the usual manner, impliedly authorizes the conveyance of an absolute title to the retail purchaser, p. 63.</p> <p>4. Sales. — Title.—Ordinarily, a vendor can pass no greater title to goods than that which he possesses, p. 63.</p> <p>5. Sales.— Retention of Title.— Wholesalers.— Retailers.— A contract by which a wholesaler retains title to goods furnished to a retailer to be sold in the usual manner is valid, p. 63.</p> <p>6. Sales. — Contracts.—Retention of Title.— Wholesalers.— Retailers. — A contract providing that the wholesale vendor shall retain title to the goods sold to a retailer, and that if such retailer “sells out,” all notes and accounts given for such goods shall become due and payable, does not authorize such retailer to sell the whole stock to another retailer, and to pass the title thereto, p. 63.</p> <p>7. —Trial.—“Instructions.”—What Are. — Directions as to Answering Interrogatories. — Directions to a jury as to the answering of interrogatories do not constitute “instructions” within the meaning of the law. p. 64.</p> <p>8. Trial. — Interrogatories.—Objections to Submission of. — Objec-' tions to the submission of interrogatories must be made prior to the submission thereof, p. 65.</p>

<p>Prom Clinton Circuit Court; Samuel B. Artman, Special Judge.</p> <p>Suit by Abner T. Bowen and others against W. O. Eaton &-Co. and others. Prom the decree entered, plaintiffs appeal.</p>

<p>1. Appeal. — Presenting Same Question Twice. — Where the demurrer to the complaint and the motion for judgment on the answers to the interrogatories present the same question, a ruling on the demurrer is sufficient, p. 82.</p> <p>2. Master and Servant. — Negligence of Fellow Servant. — At the common law a master is not ordinarily liable for the negligence of a fellow servant, p. 83.</p> <p>3. Master and Servant. — Safe Place. — Tools.—Ordinarily where a master has provided for his servants a safe place in which to work, and safe appliances with which to work, he is not liable for transitory dangers produced by the manner in which the work is done. p. 83.</p> <p>4. Master and Servant. — Methods'.—It is the • master’s duty, to adopt a practical method for the conduct of his work, so as to minimize the dangers thereof, p. 83.</p> <p>o. Master and Servant. — Neglect of Master’s Duty. — A master is liable for a neglect of his duty, whether committed by him personally, or by some servant delegated to perform it. p. 84.-</p> <p>•6. Master and Servant. — Dtoties.—Method and Manner of Worlc. —The selection of the method, and the direction as to the manner, of doing the work, are masters’ duties, p. 84.</p> <p>7. Master and Servant. — Foreman’s Orders. — Obedience to.— Warnings of Dangers. — Where a foreman directed a servant to give his whole attention to constructing a bed of spalls, assuring him that he, the foreman, would warn him of any danger from the stone which was being thrown over the cliff to a point near such bed, but because of the foreman’s failure so to warn the servant he was injured, the master is liable, p. 85.</p> <p>5. Appeal. — Harmless Frr or. — Considering Interrogatories. — In considering whether alleged errors in giving instructions are harmless, the court may consider the -answers to the interrogatories to the jury. p. 89.</p>

<p>1. Trial. — Verdict.—Interrogatories.—Answers to interrogatories to the jury control the general verdict only when in irreconcilable conflict therewith, p. 92.</p> <p>2. Bills and Notes. — Amount Due. — Verdict.—Interrogatories.—■ Where there was a general verdict for $25 for the plaintiff, in an action on four notes, and the answers to the interrogatories did not show the amount due, nor facts from which it could be definitely determined, the general verdict controls, p. 92.</p>

Prom Noble Circuit Court; Joseph W. Adair, Judge. Cross-complaint by Iieury N. Becker and others against Joseph R. Becker and others. Prom a judgment for cross-defendants, cross-complainants appeal.

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Abraham Kimmerling and another against William J. Welborn. From a judgment for plaintiffs, defendant appeals.</p>

Prom Lawrence Circuit Court; James B. Wilson, Judge. Action by Harley Whitted, by his next friend, against the United States Cement Company. Prom a judgment on a verdict for plaintiff for $1,200, defendant appeals.

<p>1. Highways. — Use of. — The rights of people to the highways, and their duties with reference to the use thereof, are equal and reciprocal. p. 112.</p> <p>2. Negligence. — Automobiles.—■Use of Siglmays. — The driver of an automobile who negligently or carelessly runs his machine upon a highway in such manner as to frighten horses, causing them to injure persons, is liable, p. 112.</p> <p>3. Negligence. — Automobiles. — Complaint.—A complaint alleging that the defendant’s chauffeur negligently drove defendant’s automobile, along a public highway, at an improper rate of speed, without warning, thereby frightening plaintiff’s horse, to plaintiff’s damage, states a cause of action, p. 113.</p> <p>4. Negligence. — Automobiles.—■Instructions.—Instructions that automobilists have a legal right to use the highways, but that such right must be exercised in a manner consistent with the rights of others lawfully using such highways, that they must use due care in the running of their machines, and that the speed thereof must be such as not to endanger the lives of others using such highways, are correct, p. 113.</p> <p>5. Negligence. — Automobiles.—Instructions.—An instruction that if the defendant was not operating its automobile at a speed of more than twenty-five miles an hour, the plaintiff whose injury was caused by the fright of his horse at such automobile could not recover, is properly refused, p. 114.</p>

<p>1. Insurance. — Reinsurance. ■— Contracts. — Complaint. — A complaint against a reinsuring company upon a life policy need not set out the contract between the original company and the re-insuring company, p. 117.</p> <p>2. Insurance.— Reinsurance.— Contracts. — Effect on Policy-holders.' — A reinsuring company which takes over the risks and business of an Indiana company assumes the risks as they exist, and cannot limit or reduce the liabilities under the existing policies. p. 117.</p> <p>3. Insurance.— Performance. — - Avoidance.— Answer.— Where the complaint alleges generally the performance of all the conditions to be performed by plaintiff, the failure of assured to perform some condition in his policy, by the terms of which the insurance is avoided,-must be set up in an answer, p. 117.</p> <p>4. Insurance.- — Assessment.—C&mplaint.—Answer.—Carrying D emurrer bade to Complaint. — In an action upon a life policy, a demurrer to an answer alleging that the company was organized under the assessment plan and that it had no power to issue the policy sued upon should, if the answer be sufficient, be carried back and sustained to the complaint, p. 118.</p> <p>5. Insurance. — Assessment. — Extended Insurance. — Powers of Companies. — Sections 4742, 4745 Burns 1908, Acts 1897, p. 318, §§4, 7, giving to assessment insurance companies the power to fix the fee rates, amounts of premiums, assessments, or periodical calls, and to accumulate a reserve fund for mortuary purposes, and other funds in excess of the amount required to be provided for the purposes of such corporation, authorize such companies to contract for extended insurance, pp. 118,122.</p> <p>6. Insurance. — Premiums.•—Rislcs.—Presumptions.—The presumption is that in fixing its premiums an insurance company took into consideration the risks assumed, pp. 120,125.</p> <p>7. Insurance. — Reinsurance.—Contracts.—Obligations upon Policyholders. — A policy-holder in an insurance company, whose right to extended insurance is fixed, is not affected by a contract between his company and a reinsuring company by the terms of which all policies upon which premiums were not paid when due, or within thirty days thereafter, shall be null and void, and the premiums theretofore paid forfeited, p. 121.</p> <p>8. Insurance. — Reinsurance.—Imposing Conditions upon Policyholders. — A reinsuring company has no right to impose new conditions upon a policy-holder whose rights under his policy were fixed before the reinsuring-company took over the business and property of the original company, p. 121.</p> <p>D. Insurance.— Reinsiirance. — • Contracts.— Policies.— Complaint. —A complaint expressly based upon an insurance policy cannot be considered as based upon a reinsuring contract between the original and the reinsuring company, merely because an excuse. is made in the complaint for failing to set out' such contract. p. 122.</p>

<p>1. Intoxicating Liquors. — Unlawful Sales. — Death of Salooiu keeper. — Abatement.—The 'death of a saloon-keeper who unlawfully sold liquor to a person, thereby causing his death, does not discharge such saloon-keeper’s surety on his bond, the cause of action on behalf of the widow and children being for the.loss of support, and not for personal injuries received by the decedent, pp. 127,129,130,131.</p> <p>2. Intoxicating Liquors. — Retailers.—Bonds.—Contracts.—A bond given by a retailer of intoxicating liquors constitutes a contract with the State to compensate persons deprived of their means of 'support by reason of unlawful sales of liquor made by such retailer, p. 128.</p> <p>3. Intoxicating Liquors. — Unlawful Sales. — Injuries.—Complaint. —A complaint for loss of means of support caused by an unlawful sale of liquor, alleging that defendant surety’s principal unlawfully sold liquor to decedent by reason of which he died, is sufficient, regardless of a description of the manner of death, or of its failure to allege that such principal sold to him all of the liquor which caused the death, p. 129.</p> <p>4. Appeal. — Harmless Error. — Judgments will be reversed on appeal only where prejudicial error has been committed, p. 130.</p> <p>5. Action. — Abatement.—Death of Defendant. — Personal Injuries. —An action for personal injuries ordinarily abates with the deatli of the party injured as well as with the death of the defendant, p. 131.</p>

<p>Prom Dearborn Circuit Court; George E. Doivney, Judge.</p> <p>Action by Mary D. Miller against Harry C. "Willette, as administrator of the estate of W. H. H. Willette, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Cass Circuit Court; John S. Lairy, Judge. Appeal from an order authorizing Eobert M. Sands to appeal from a judgment of a justice of the peace against him in favor of the Logansport Credit Exchange.

From Hancock Circuit Court; Robert L. Mason, Judge. Application by Arch Duncan, against which W. L. Aider-son and others remonstrate. From a judgment for remonstrants, the applicant appeals.

<p>Prom Putnam Circuit Court; John M. Rawley, Judge.</p> <p>Suit by James B. Nelson and another against the State Life Insurance Company. Prom a decree for plaintiffs, defendant appeals.</p>

<p>1. Bills and Notes. — Cancelation.—Destruction. — Lost Instruments. — A note which has been voluntaria destroyed by the payee in order to cancel the evidence of indebtedness thereof cannot be sued upon as a lost instrument, nor can the debt evidenced thereby be collected, p. 143.</p> <p>2. Bills and Notes. — Voluntary Cancelation. — Evidence—Circumstantial. — Evidence that upon the death of the uncle of the maker of the note in controversy the note could not be found, that such uncle was aged, and had an abundance, that he had no wife nor descendants, that the maker of the note was his nephew,'that he was paralyzed, and that the uncle was warmly attached to him, that he told such nephew and his wife “that the note would never' bother them,” and that the note in controversy was the only note in existence, constitutes sufficient circumstantial evidence to support a verdict that such uncle voluntarily forgave the debt and canceled the noto. p. 144.</p> <p>3. ¿Appeal. — Weighing Evidence. — The weight of the evidence is a question for the trial court., p. 145.</p> <p>4. Bills and Notes. — Cancelation—Presumptions. — Evidence. — There is a presumption that a note in the hands of the payee is unpaid; but such presumption may he overthrown by evidence of the voluntary cancelation of the note by such payee, p. 145.</p> <p>5. Evidence. — Declarations of Agent. — Hushamd and Wife. — Declarations of a wife outside the scope of her' agency in transacting the business of her husband, are not admissible against him. p. 145.</p> <p>6. Appeal. — Mandate.—Death.—Where appellee dies pending an appeal,‘an affirmance of the judgment will be made as of the date of the submission of the cause, p. 145.</p>

<p>1. Insurance. — Reinsurance.—Statute, Part of Contract. — Where, under §4753 Burns 1908, Acts 1897 p. 318, §15, one insurance company reinsures the risks of another, the statute becomes a part of the contract, and imposes the same obligations and insures the same rights as existed under the original contract, p. 147.</p> <p>2. Insurance — Associations.-— Expulsion of Members.— Notice.— Where the charter of an association gives it the power to expel a member for certain causes, it cannot exercise such power without giving notice to such member, p. 14S.</p> <p>3. Insurance. — Beneficial Associations. — Assessments. — Notice. — An assessment made by an insurance company, no definite time being fixed for the payment thereof, is not binding on the assured and does not affect his rights until notice thereof has been given to him. p. 149.</p>

<p>From Fountain Circuit Court; Isaac E. Schoonover,. Judge.</p> <p>Suit by Wilmer N. Foster and others against William B. Gray as Auditor of Fountain county, and another. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Beneficial Associations. — Waiver of Constitutional Provision. ■ — Reply.—Conclusions.—A reply, in an action against a beneficial association, that defendant waived the suspension of the deceased member, alleged in defendant’s answer, by accepting, unconditionally, payment of the dues for the delinquent months, as being in full compliance with the contract, the same as if the amounts had been paid at the stipulated times, and that defendant thereby waived a suspension for failure to pay, shows a waiver, and does not state a’ conclusion, p. 164.</p> <p>2. Beneficial Associations. — Failure to Pay Assessments. — Forfeitures. — Instructions.—An instruction that defendant beneficial association to sustain its defense that the deceased member suffered death from his own improper conduct — excessive use of alcohol — must show that such conduct was the proximate cause of his death, is correct, the fact of its contributing to his death being insufficient to defeat the beneficiary, since forfeitures are strictly construed against the insurer, p. 165.</p> <p>8. Beneficial Associations. — Failure to Pay Assessments. — Suspension. — Waiver.—Instructions.—An instruction that if defendant beneficial. association’s local officer ' collected the assured’s three delinquent assessments unconditionally and as being in full compliance with the contract, and as having been paid when due, and did not report such arrearages until the receipt of the proofs of death, and that upon receipt of such information the association did not repudiate such officer’s acts, but retained the money and thereby ratified such acts and estopped themselves from setting up such defense — then if you find for the plaintiff you will assess the damages according to the contract, is not erroneous, where there was evidence tending to establish such facts, p. 166.</p> <p>4. Beneficial Associations. — Failure to Pay Assessments.— Forfeiture. — Instructions.—In an action against a beneficial association, the by-laws providing that “any member indebted for three months’ dues * * * shall 'stand suspended,” and that a “suspended member shall not again be placed in benefits until six months from the date of settling in full all arrearages,” an instruction that if the assured had failed to pay his dues for three months he was not a beneficial member until six months thereafter, and would be entitled only to a certain small stipulated amount, was correctly refused, where there was evidence of a waiver of such suspension, p. 166.</p> <p>5. Beneficial Associations.— Evidence.— Public Documents.— Boards of Health. — Causes of Death. — In an action upon a benefit certificate providing for a forfeiture if the assured should come to his death by his own improper conduct, a record of the board of health, required by the state law, or by a municipal ordinance, that he died from acute alcoholism is inadmissible on behalf of the defendant, as tending to show the cause of death. Roby and Hadley, JJ., dissent, p. 167.</p>

<p>1. Bills and Notes. — Bills of Exchange. — Ownership.—Burden of Proof. — Instructions.—An instruction, in an action by an indorsee of a bill of exchange against-the acceptor thereof, that the burden is upon the plaintiff to prove that he is a good-faith purchaser of such bill, is incorrect, where the answers consisted of the general denial and affirmative defenses, such burden being on the defendant, p. 181.</p> <p>2. Appeal. — Prejudicial Instructions. — Burden of Proof. — Where the evidence is conflicting, a general verdict for appellee acceptor does not render harmless an instruction erroneously placing the burden of proof upon the appellant assignee to establish that he •was a bona fide holder of the bill of exchange sued on. p. 181.</p>

Prom Boone Circuit Court; W. H. Parr, Judge. Action by Alice Keely, as guardian of Prank Keely, a person of unsound mind, against the City of Indianapolis. Prom a judgment for defendant, plaintiff appeals. On motion to dismiss the appeal.

Prom Jasper Circuit Court; Charles W. Hanley, Judge. Suit by Harry C. Willette, as administrator of the estate of Louisa B. Willette, deceased, against Benjamin J. Gifford and others. Prom a judgment for defendants, plaintiff appeals.

<p>1. Evidence. — Judicial Notice. — Failure of Natural Gas. — Courts take judicial notice of the failure of natural gas. p. 190.</p> <p>2. Contracts — Extension of Gas-Mains.— Torts.— An action to recover the contract price of certain extensions of gas-mains' never laid, does not sound in tort. p. 197.</p> <p>3. Contracts. — Discharge.—Extension of Gas-Mains. — Failure of Gas. — Recovery of Contract Price. — A contract between a gas company and the owner of certain lots whereby such company, for a certain sum agreed to extend its mains along the alleys to the rear of such lots and to connect with such lots as soon as buildings were erected thereon, is discharged by the failure of natural gas, and such owner cannot recover for the company’s failure to connect with the remainder of the lots, after the natural gas fields have failed and gas cannot be obtained, p. 197.</p> <p>4. Contracts. — Impossible Performance. — A contract to furnish natural gas to consumers does not ordinarily render the company liable for its failure to furnish it, where there has been a failure of gas. p. 199.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Washington Township of Morgan County against the City of Martinsville. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Municipal Corporations. — Street Assessments.' — Reappraisement. — Petition.—A petition to the circuit or superior court for a reappraisement of the benefits received from a certain street improvement, under §8716 Burns 1908, Acts 1905 p. 219, §111, should allege that the petitioner appeared before the council at the time designated, for the hearing of objections or remonstrances, and made objections thereto, p. 210.</p> <p>2. Municipal ■ Corporations. — Street Assessments. — Appraisers.— Failure to Report. — Where appraisers, appointed under §8716 Burns 1908, Acts 1905 p. 219, §111, to assess the benefits received from certain street improvements, fail to agree, a new set of appraisers should be appointed, p. 211.</p>

<p>Prom Hamilton Circuit Court; Ernest E. Cloe, Special Judge.</p> <p>Action by the Security Mutual Life Insurance Company against Jacob Prankel and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Railroads. — Duty to Consignee’s Servants. — Licensees.—Invitation. — Contracts.—Where the servant of a glass company was engaged in unloading- a car in the enclosed yard of sueb glass company, and defendant railroad - company in switching other cars was compelled to move the car that was being unloaded, and the servant, in accordance with a custom known to the railroad company’s local employes, and unknown to the glass company or to the railroad company’s contracting officers, remained in the car while it was being switched and was injured by the negligence of the railroad company’s engineer, such railroad company is not liable, the servant’s ride being for his own convenience and pleasure and not for the benefit of either company, pp. 223,226, 229.</p> <p>2. Negligence. — Duty.—Liability for negligence arises only from the breach of a duty. p. 224.</p> <p>3. Railroads. — Trespassers.—Licensees.—Railroad companies are liable to trespassers and bare licensees only • for wilful injuries. p. 224.</p> <p>4. Railroads. — Licensees by Invitation. — Duty.—A railroad company that has invited, expressly or impliedly, a person to come upon its grounds, is liable for its failure to exercise ordinary care toward him. p. 224.</p> <p>5. Railroads. — Riding on Freight Trains. — Invitation.—A iTailroad company is not liable to a person negligently injured while riding upon one of its freight trains, where he was invited so to do by a person having no authority to invite him. p. 225.</p> <p>6. Railroads. — Licensees.—Invitation.—Inferences.—An invitation to enter, or remain, upon railroad jiremises is implied, where the licensee’s presence is of mutual interest or advantage to the company and the licensee, but is not inferred when his presence is for his sple pleasure or benefit, p. 225.</p> <p>7. Railroads. — Violation of Rules. — Custom.—A railroad company may assume that its rules will be- complied with by its servants, and notice of a custom in opposition to its rules will rarely be presumed, based upon the disregard or violation of rules by faithless servants, p. 225.</p> <p>8. Railroads. — Freight Trains. — -Dangers.—Presumptions. — Every one is presumed to know that riding upon a freight train is dangerous, especially when the cars are being switched, p. 226.</p> <p>9. ' Carriers. — Railroads.—Shipments. — Contracts. — Delivery. — Custom. — Contracts of shipment may be oral, and the time, place, and manner of delivery may be fixed therein, or the manner of delivery may be regulated by custom, p. 226.</p> <p>10. Carriers. — Contracts.—Parties.—Train Crews. — Unless specially authorized, train crews cannot contract for the transportation of freight, p.227.</p>

<p>Prom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Bertha Copeland against the Murin Ice and Coal Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals.</p>

<p>From Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by The State of Indiana, on the relation of the Town of Knightstown, against John O. Holtsclaw and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Prom. Greene Circuit Court; John G. Robinson, Special Judge.</p> <p>Petition by Cyrus E. Davis against James G. Hert and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>From Crawford Circuit Court; C. W. Cook, Judge.</p> <p>Action by Sallie Hughes against the American Building and Loan Association. From a judgment for plaintiff, defendant appeals.</p>

From Whitley Circuit Court; Joseph W. Adair, Judge. Action by I-Ienry Jeffries, as executor of the will of David Jeffries, deceased, against John W. Orndorf, as executor of the will of Marcus L. Jeffries, deceased. From a judgment for plaintiff, defendant appeals.

Prom Harrison Circuit Court; C. W. Cook, Judge. Action by Roy C. Sieg.against the Southern Railway Company and another. Prom a judgment on a verdict for the plaintiff for $5,000, defendants appeal.

<p>From Warrick Circuit Court; Boscoe Kiper, Judge.</p> <p>Action by Wendelin Schmitt against Aaron M. Weil. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Carl Brandi against Ferdinand C. Bicknese. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Jennings Circuit Court; Perry E. Bear, Special Judge. Action by The State of Indiana, on the relation of the Board of Commissioners of the County of Ripley, against Abraham L. Donaldson and others. Prom a judgment for plaintiff, defendants appeal.

<p>From Eandolph Circuit Court; J. W. Macy, Judge.</p> <p>Suit by the American Building and Loan Association of Indiana against Mary J. ■ Fowler and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Railroads. — Obstructing Watercourses. — Nuisance.—Damages.—■ Where a railroad company obstructs a. watercourse, thereby causing the plaintiff’s land to be overflowed, but such nuisance is abatable, the damages recoverable are only such as have accrued up to the time of the bringing of the action, p. 296.</p> <p>2. Railroads. — Obstructing Watercourses. — Permanent Injuries.— Damages. — Measure of. — Although the complaint alleges that the . defendant railroad company’s obstruction of a watercourse and consequent backing of water over plaintiff’s land caused permanent damage, the courts know that an overflow of surface-water is abatable and does not injure permanently, and therefore the measure of damages is the diminution of the value of the use of. the land prior to the commencement of the action, p. 297.</p> <p>3. Evidence. — Drainage of Overflowing Waters. — Nuisance.—Railroads. — In an action against a railroad company for wrongfully obstructing a watercourse, thereby causing plaintiff’s land to overflow, evidence that such landowner, at a small expense, could have connected his drain with a pipe placed by defendant under its roadbed, thereby draining his land, is admissible, p. 297.</p> <p>4. Damages.— Duty to Minimise.— It is the duty of a person damaged by the acts of another, to exercise reasonable care to minimize such damages, p. 298.</p>

<p>Prom Wabash Circuit Court; Samuel E. Cook, Special Judge.</p> <p>Action by Walter A. Kendlesparker against the Port Wayne and Wabash Valley Traction Company. Prom a judgment on a verdict for plaintiff for $1,500, defendant appeals.</p>

Prom Lake Circuit Court; W. O. McMahan, Judge. Action by Andrew P. Letherman, as administrator of the estate of Daniel P. Horner, deceased, against the Valparaiso Lighting Company. Prom a judgment on a verdict for plaintiff for $5,000, defendant appeals.

<p>1. Vendob and Puechasee. — Options.—Election.—Failure to Exercise. — Effect as to Third Persons. — 'Where purchasers secure an option upon a tract of land, upon certain conditions, a breach of any one of which operates as a forfeiture of the purchasers’ rights, and the vendor, upon a breach of the conditions, fails to exercise his right of forfeiture, the vendee of the purchasers cannot, because of such provision for forfeiture, raise the question of such purchasers’ right to sell the land. p. 315.</p> <p>2. Vendob and Puechasee. — Liens.—Title Bond. — Option.—One holding an option upon a tract of land has the right to sell such land, and is entitled to enforce a vendor’s lien for the purchase money, p. 316.</p> <p>3. Evidence. — Admissions of Agent. — Authority.—The admissions of an agent are not admissible in evidence until his agency is established, p. 317.</p> <p>4. Vendoe and Puechasee. — Liens.—Equity.—In a suit by the holders of a title bond to certain real estate, against their vendees who, .at the direction of such holders, obtained a-deed direct from the owner, the land being worth $2,000, and the amount paid to the owner being $506, equity requires very clear proof of defendant’s rights, 'where they attempt upon technical grounds to avoid payment of the balance, p. 317.</p> <p>5. Appeal. — Changing Theory of Case. — Appellants cannot change the theory of their case on appeal, p. 318.</p> <p>6. Evidence. — Complaint. — Unauthorized, Averments. — Attorney and Client.- — Where an attorney under a misapprehension of the facts inserted certain unauthorized and untrue allegations in a complaint, such complaint has no probative force as an admission of the plaintiff, p. 318.</p> <p>7. Appeal. — Weighing Evidence. — A determination by the Appellate Court that there is no evidence supporting a certain allegation does not constitute a weighing of the evidence, p. 320.</p>

From Probate Court of Marion County (Estate No. 5,871); Frank B._ Boss, Judge. Final report of .William H. Richey, as administrator of the estate of Perry L. Richey, deceased, to which Nora Cleet excepts. From a judgment for the exceptor, the administrator appeals.

<p>1. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 331.</p> <p>2. Pleading.— Issues.— Variance.— Negligence.— Driving Against Vehicle. — A complaint alleging that defendant negligently drove bis buggy against the rear wheel of plaintiff’s buggy, breaking it and injuring the plaintiff, is sustained by evidence that defendant drove alongside plaintiff’s buggy, in an attempt to pass, and collided with plaintiff’s buggy, p. 332.</p>

<p>Prom Elkhart Superior Court; Vernon W. Van Fleet, Judge.</p> <p>Action by Ira Neff against the Elkhart Rubber Works. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by James P. Saunders against John W. Pritchard. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Injunction. — Damages.-—Complaint.—A complaint to enjoin defendant from plowing upon plaintiff’s land, alleging that defendant entered upon plaintiff’s land in violation of defendant’s lease and plowed one acre thereof, to plaintiff's damage in the sum of $50, is sufficient on demurrer, as a claim for damages, regardless of the right to injunction, p. 338.</p> <p>2. Injunction. — Possession.—Threats of Disturbance to Right of. —A threatened disturbance of a real property owner’s right of possession authorizes injunctive relief, p. 338.</p> <p>3. Appeal.— Presentation of Question.— Motion for Change of Venue. — Default Judgment.- — Motion for Mew Trial. — The overruling of a motion for a change of venue constitutes no ground for a motion for a new trial, where the judgment was rendered upon a default, p. 338.</p> <p>4. Landlord and Tenant. — Former Adjudication. — Action for Rent. —Injunction from Molding Over. — A judgment for the rent due for a term under a lease does not estop the landlord from maintaining a suit to prevent such tenant from holding over. p. 338.</p>

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Abraham Becovitz against Abraham Saperstein and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Quieting Title. — Trusts.—Talcing Property in Another’s Name. —Fraud.—Complaint.—Appeal.—A complaint to quiet title, alleging that the plaintiff paid for a tract of land, and upon an agreement to transfer upon demand, the deed was made to defendant, but that defendant, upon demand, refused so to transfer, is not reversibly bad for failure to allege a want of fraudulent intent, where such fact was established by the evidence, p. 343.</p> <p>2. Pleading. — Complaint.—Amendment on Day of Trial. — -It does not constitute reversible error for the court to permit the plaintiff, on the day of trial, to amend her complaint, where no prejudice to defendant’s rights resulted, p. 344.</p> <p>3. Trusts.— Fraud.— Deeds.- — -Payment of Consideration by Another. — Contracts.—Where a sister paid the purchase price of land and took the deed in the name of her brother-in-law, upon an oral agreement to convey to her upon demand, a trust exists in her favor, and her rights cannot be defeated on the ground that the deed was so taken to avoid any trouble or notoriety because of a ' threatened action against her brother by an alleged common-law wife. p. 344.</p>

Prom Johnson Circuit Court; William E. Dewpree, Judge. Action by The State of Indiana, on the relation of John C. White, as administrator de bonis non of the estate of Martha J. Handy, deceased, against Thomas W. Cravens and others. Prom a judgment for plaintiff, defendants appeal. On motion to dismiss.

<p>1. Fraud. — Subjecting Goods to Payment of Debts. — Ownership.— Complaint. — Conclusions.—Au allegation, in a complaint to subject a stock of goods to the payment of debts, that the defendant “was not the owner of the goods,” states a mere conclusion, p. 351.</p> <p>2. Fraud.' — Secret Mortgages. — Creditors.—Where the owner of a stock of goods sold such stock and delivered possession to his vendee, taking a conditional mortgage thereon but keeping it secret, such stock is liable to- be taken on execution to satisfy such vendee’s creditors, the vendor being treated as any other common creditor, p. 351.</p> <p>3. Fraud. — Sales.—Vendor.—Mortgages.—In a complaint lor the subjection of a stock of goods to the payment of a vendee’s debts, allegations of fraud made against the vendor in. concealing its mortgage upon such goods are without effect, since the goods were liable to be taken for the vendee’s debts regardless of the mortgage. p. 351.</p> <p>4. Sales. — -Rights of Vendor.— Insolvency.— An ordinary sale of goods to a merchant, whether solvent, or insolvent, vests the title thereto in such merchant, the vendor becoming a mere creditor. p. 352.</p> <p>5. Assignments for Benefit of Creditors.— Insolvency.— Preferences. — An insolvent may prefer a bona fide creditor in making an assignment for the benefit of creditors, p. 352.</p> <p>■6. Sales. — Mortgages.—Creditors.—An owner of a stock of goods who sells such stock, taking a mortgage thereon and keeping it secret, may be settled with by a transfer of the replenished stock, though such vendee left unpaid creditors who had sold to him part of such, stock, p.352.</p> <p>7. Mortgages. — Power of Sale. — Invalid as to Creditors. — Possession. — A mortgagee who holds a mortgage, void as to the mortgagor’s creditors, may nevertheless enforce his mortgage, if he ' takes possession of the mortgaged goods before any other lien attaches ; and this rule prevails although the mortgagor is given the right to sell the goods, p. 352.</p>

Prom Hendricks Circuit Court; John C. Robinson, Judge. Action by Lewvearl Keys, by his next friend, against the Vandalia Eailway Company. Prom a judgment for $2,000 on a verdict for plaintiff for $5,000, a remittitur having been filed for $3,000, defendant appeals.

<p>Prom Dearborn Circuit Court; Frank B. Shutts, Special Judge.</p> <p>Action by William Pohle against Leonard Harmon and others. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Intoxicating Liquors. — Sales to Intoxicated Persons. — Knowledge. — Presumptions.—Evidence that a saloon-keeper sold liquor to an intoxicated person shows, prima facie, that such saloon-keeper knew such person was intoxicated, the presumption being that he knew what was apparent, want of knowledge in such cases constituting a defense, p. 375.</p> <p>2. Intoxicating Liquors.— Sales to Intoxicated Persons.— Damages. — Statutes.—Section fifteen of the act of 1875 (Acts 1875 [s. s.] p. 55), prohibiting the sale, barter, or gift, of liquor to an intoxicated person, is still in force so far as it supports a civil action under §8355 Burns 1908, §5323 Ii. S. 1881, giving to any person whose right of support has been injured by reason of the sale of liquor to any intoxicated person, a right of action on the bond of the saloon-keeper, p. 376.</p> <p>3. Intoxicating Liquors.— Sales to Intoxicated Persons.— Damages..■ — Direct and Remote. — Evidence.—In an action for damages caused by the sale of liquor to an intoxicated person, it is only necessary to prove that the liquor sold contributed to the intoxication and that the damages were either directly or remotely caused thereby, p. 377.</p> <p>4. Trial. — ■Instructions.— Inapplicability.— An instruction not applicable to the evidence should be refused, p. 377.</p> <p>5. Intoxicating Liquors. — Sales to Intoxicated Persons. — Outside of Saloons. — Bonds.—Liability.—The surety on a saloon-keeper’s bond is liable for unlawful sales made to intoxicated persons in a room outside of the saloon proper, p. 377.</p>

<p>Prom Pulton Circuit Court; Harry Berneiha, Judge.</p> <p>Action by the Rochester Improvement Company against David D. Ginther. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by Mary P. Heineman, as administratrix of the estate of George W. Heineman, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals.

<p>1. Account. — Assumpsit.—Contracts.— Implied.— Evidence of Express. — Variance.—In an action in assumpsit on an account for the value of books sold and delivered, evidence of a written contract between the parties is admissible, the agreed price constituting the maximum amount of damages recoverable, p. 402.</p> <p>2. Account.— Goods Sold and Delivered.— Evidence.— Evidence showing that the plaintiff sold and delivered to defendant, upon his written order, certain books, entitles the plaintiff to a judgment. p. 402.</p>

<p>From Jay Circuit Court,- John L. LaFollette, Judge.</p> <p>Action by Prescott K. Dederick and another against Peter Baumgartner and others. From a judgment for defendants, plaintiffs appeal.</p>

Prom Hamilton Circuit Court; Ira W. Christian, Judge. Suit by John B. Wiseman, as guardian.-of Raymond Wise-man and others, against William P. Lowe and others. Prom a decree for plaintiff, defendants appeal.

From Spencer Circuit Court; Roscoe Kiper, Judge. Pinal report of William Stevenson, as administrator of the estate of Doeia H. Hullett, deceased. Prom an order in favor of Basil Gray and others, the administrator appeals.

Prom Orange Circuit Court; Thomas B. Buskirk, Judge. Petition by Aaron Maris, as administrator of the estate of Louisa Wolfe, deceased, against Louis Wolfe and others. Prom a judgment for defendants, plaintiff appeals.

<p>From Marion Circuit Court (16,594); Henry Clay Allen, Judge.</p> <p>Action by Alvin King against the Laycock Power House Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Gibson Circuit Court; Heráis Clements, Judge.</p> <p>Suit by Henry Herring and another against George T. Keneipp. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>Prom Superior Court of Marion County (72,380); John L. McMaster, Judge.</p> <p>Action by Eben H. Wolcott and others against Eobert E. Moore. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>From Perry Circuit Court; C. W. Cook, Judge.</p> <p>Suit by Adolph Zuelly and others against Martin P. Casper'and another. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>1. Master and SERVANT.^Sia/e Place. — It is the duty of a master to furnish for his servant a reasonably safe place in which to work. p. 439.</p> <p>2. Master and Servant. — Assumption of Rislc. — Want of Knotoledge. — Interurban Railroads. — Poles too near Trade. — Complaint. - — A complaint against an interurban railroad contracting company alleging that such company set its poles within four and one-half feet of the track, and that the plaintiff, without knowledge thereof, in discharging his duty of extending his arm from the side of the car to signal the engineer, sustained injuries by striking one of such poles, states a cause of action, the allegation of want of knowledge sufficiently negativing assumption of risk, p. 439.</p> <p>3. Master and Servant. — Assumption of Rislc. — Negativing.— Complaint. — A complaint at the common law, alleging that defendant Interurban railroad contractor placed trolley poles too near the track, and that the plaintiff, in signaling to the engineer, sustained Injuries, and that the plaintiff was ignorant of the proximity of such poles to the track, states a cause of action, p. 439.</p> <p>4. Master and Servant. — Assumption of Rislc. — Failure to Negative. — A paragraph of complaint alleging that defendant interurban railroad contractor negligently set a crooked trolley pole near the track, that the crook thereof was too near the track and that the plaintiff brakeman in signaling to the engineer was struck on the hand, sustaining injuries, is bad, since it does not negative the assumption of the risk. p. 439.</p> <p>o. Appeal. — Verdict upon Several Paragraphs of Complaint. — Insufficiency of Paragraphs. — A judgment resting on a complaint consisting of several paragraphs, some of which are insufficient, will be reversed unless it affirmatively appears that it rests upon a good one. p. 439.</p>

<p>From Kosciusko Circuit Court; Lemuel W. Royse, Judge Pro Tern.</p> <p>Suit by Alonzo U. Doty and another against the Sandusky Portland Cement Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Railroads. — Raising Grade.- — A railroad company has a right to elevate the grade of its tracks, p. 448.</p> <p>2. Railroads.' — Elevating Grade. — Farm Crossings. — Destruction of. — Damages.—Complaint.—A railroad company that is granted a right of way on condition that it maintain a farm crossing for the grantor, may elevate its track so that it is impracticable to maintain such crossing, but a complaint showing such facts and demanding damages, is sufficient, p. 448.</p> <p>3. Railroads. — Farm Crossings. — Failure to Maintain. — Complaint. —A complaint alleging that defendant railroad company agreed to maintain a farm crossiug over its track for the plaintiffs, that an underground crossing is impracticable, that an overgrade one can not be constructed where defendant attempted to construct it, but can be at another point, and demanding damages, is sufficient, p. 448.</p> <p>4. Railroads. — Farm Crossings.— Evidence.— Oral. — Possession.— Title. — Damages.—In an action by the owners of a farm, against a railroad company, for damages for the company’s failure to construct and maintain a farm crossing, oral evidence th¿t the plaintiffs occupy the land is sufficient evidence of ownership, where there is no evidence otherwise, p. 449.</p> <p>5. Estoppel. — Denying Title ■under Deed Conferring Title. — A railroad company is estopped to deny a title recognized by the deed under which it claims, p. 450.</p> <p>6. Railroads. — Deeds.—Covenants Running with Land. — The successor of a railroad company to which was granted a right of way on condition that it maintain a farm crossing, is bound thereby, pp. 450,453.</p> <p>7. Railroads. — Farm Crossings. — Failure to Maintain. — Damages. —Instructions.—In an action against a railroad company for damages for failure to maintain a proper farm crossing over its tracks, an instruction that if the finding is for the plaintiffs the measure of damage should be “the cost of the construction or completion of a crossing, together with such amount as will compensate them for the loss of the use and enjoyment of their lands” up to the time of the trial, if such loss existed, and if it be found necessary, in the construction of á proper crossing, to extend the approaches into plaintiffs’ land, and that the land will be damaged thereby, such damage may also be considered, is not objectionable, where the evidence showed that a crossing at the point where defendant attempted to make it would require approaches, pp. 451,452.</p> <p>8. Judgment. — Res Judicata. — Opinion on Former Appeal. — The opinion of the Appellate Court in a case constitutes the law of-the case, in subsequent appeals therein, p. 451.</p> <p>9. Railroads. — Farm Crossings. — Faihire to Malee. — Depreciation of Land. — Evidence.—In an action against a railroad company for damages for its failure to construct and maintain a farm crossing, evidence of the value of the plaintiffs’ farm with and without a proper crossing is admissible, p. 453.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Mary Estella Farneman against Lucy Farneman. From a judgment for plaintiff, defendant appeals.</p>

<p>From Marion Circuit Court (15,866) ; Henry Clay Allen, Judge.</p> <p>Action by Maurice L. Yuster against John Keefe. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Daviess Circuit Court; Hileary Q. Houghton,. Judge.</p> <p>Action by Charles E. Haughton, as administrator of the estate of George A. Haughton, deceased, against the Iowa. .Life Insurance Company. Prom a judgment for plaintiff,, defendant appeals.</p>

<p>Prom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Anton ITeitz and others against the Knox County Home Telephone Company. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>1. Teial. — Interrogatories.—Verdict.—Conflict.—Answers to interrogatories to the jury control the general verdict only when they are in irreconcilable conflict therewith on any supposable state of the evidence within the issues, p. 494.</p> <p>2. Railroads. — Pedestrians.—Invitation.— Complaint.— Theory.— A complaint alleging that a stock-yards and transit company owned and operated a railroad yard, that a packing company employed a large number of servants, that such transit company maintained avenues, streets and paths across such yards for the use of such servants, that the plaintiff was a servant of such packing company and that in crossing such yard, in a snow storm, in the dark, she was run over and injured by a freight train negligently operated by defendant railroad company, by running without signal, proceeds upon the theory that the plaintiff and defendant were in such yard by invitation, and that plaintiff was injured because of defendant’s negligence, p. 494.</p> <p>3. Railroads.— Ownership.— Interrogatories.— Conflict.— An ■ answer to an interrogatory to the jury, that the plaintiff’s injury occurred on the private property of defendant railroad company, is irreconcilable with any evidence admissible under a conqplaint alleging that such injury occurred upon the private property of another, pp. 497,499.</p> <p>4. Railroads. — Trespassers.—Duty Toward. — A railroad company is not required to anticipate the presence of trespassers upon its tracks, and is liable to them only for wilful, wanton, or reckless injuries inflicted, p. 497.</p> <p>5. Railroads. — Trespassers.—Contributory Negligence. — A pedestrian that knowingly enters upon a railroad track at a point of danger and where an entry thereon is forbidden, is guilty of contributory negligence. .p.497. ■</p> <p>6. Railroads. — Municipal Ordinances. — Places Affected by. — A municipal ordinance prescribing the method of operating railroad trains, applies to the operation of trains on the private grounds of the companies, as well as upon the public places, within the city. pp. 498, 503.</p> <p>7. Railroads. — Ownership.—Private or Public. — Interrogatories.— An answer to an interrogatory, that the plaintiff was injured on the private property of defendant railroad company is inconsistent with a complaint alleging that such injury occurred upon a street, p. 500.</p> <p>8. Railroads. — Wilful Injuries. — Contributory Negligence. — Contributory negligence constitutes no defense to an action against a railroad company for wilful injuries, p. 502.</p> <p>9. Railroads. — Negligence.—Wilful Injuries. — Complaint. — Paragraphs. — Verdict.—Interrogatories.—Conflict.—A general verdict, on a complaint consisting of several paragraphs some of which alleged negligence, and some, wilful misconduct, is not overturned by answers to interrogatories which merely negative negligence, p. 502.</p> <p>10. Appeal. — Mandate.■—Where justice requires, a new trial may be ordered, though the appellant technically might be entitled to. a judgment, p. 502,</p> <p>11. Railroads. — Trespassers.—Knowledge of Presence of. — Question for Jury. — Whether a railroad company knew of plaintiff’s presence upon its track, is a question for the jury. p. 503.</p> <p>12. Railroads. — Contributory Negligence.— Jury.— Whether the plaintiff was guilty of contributory negligence in attempting to cross defendant railroad company’s track, is a question for the jury. p. 504.</p>

<p>1. Divorce. — Residence.—Complaint.—A complaint for divorce that fails to set out, as required by statute (§1066 Burns 1908, §1031 R. S. 1881), that the plaintiff has been a resident of the State for the last two years, and of the county for the last six months, is bad. p. 505.</p> <p>2. Divorce. — Residence.—Witnesses.—Evidence.—The residence of the plaintiff in a divorce suit must be established by at least two resident freeholders and householders of the State, p. 506.</p>

<p>1. Constitutional Law. — Full Faith and Credit. — Foreign Judgments. — Divorce.—Alimony.-—Instalments.—A decree, in an Ohio divorce suit, requiring the husband, as alimony, to pay four dollars a week, monthly, until the further order of the court, the Ohio statute (§9233 Laming’s R. S. 1905) authorizing judgments for alimony to be made payable “in gross or instalment, as the court deems just and equitable,” constitutes a judgment for the payment of money, and is entitled to the “full faith and credit” clause of the federal Constitution (Art. 4, §1). pp. 508, 510, 511. 512, 513.</p> <p>2. Divorce. — Alimony.—Instalments.—Judgment.—A judgment for alimony payable in instalments, is erroneous, p. 509.</p> <p>3. Execution. — Judgment.— Divorce.— Alimony.— Judgments for alimony are collectible by execution, p. 509.</p> <p>4. Appeal. — Judgment.—Final.-—Divorce.—An Ohio decree for a . divorce and for alimony payable in monthly instalments, is appealable. p. 509.</p> <p>5. Jubsment. — Action on. — • Payment.— Modification.— Collateral Attach. — In an action on a foreign judgment, payment, or subsequent modification thereof, constitutes a defense, but such judgment is not subject to a collateral attack for mere errors or irregularities. p. 511.</p> <p>6. Divorce.- — Alimony.—Basis of Right. — Husband and Wife. — A claim for alimony is based upon the common-law duty of the husband to support his wife during-marriage, and he cannot escape such duty by treatment causing her to obtain a divorce, p. 512.</p> <p>7. Bankruptcy. — Claims.—Discharge.—Alimony.—A claim for alimony ordered paid in gross or by instalments, is not provable in bankruptcy; and a discharge therein does not affect such claim, p. 512.</p> <p>S. -Judsment. — Foreign.—Action on. — Complaint.—A complaint alleging that the plaintiff secured an Ohio decree for alimony, payable monthly, that a certain sum is due thereunder, setting out an Ohio statute authorizing the entering of such a decree, and praying- judgment, is sufficient, p. 513.</p>

<p>Prom Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Suit by James Baxter against William H. Baxter. Prom a decree for plaintiff, defendant appeals.</p>

From Superior Court of Marion County (72,080); Charles T. Hanna, Judge. Action by August Schwinge, as administrator of the estate of Bertram H. Schwinge, deceased, against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.

<p>1. Master and Servant. — Negligence.—Several Acts of. — Proof of One. — Instructions.—Where a complaint alleged several acts of negligence as the cause of plaintiff’s injury, an instruction that proof of one of such acts, together with the.other material alie-, gations of the complaint, was sufficient, is not erroneous, nor misleading. p, 533.</p> <p>2. Master and Servant. — Several Acts of Negligence. — Assumption of Risk. — Instructions.—An instruction that the plaintiff is entitled to recover upon proof of one of the alleged acts of negligence, is not erroneous on the ground that it wholly omits the assumption of risk, where another instruction accurately stated the law as to such question, p. 533.</p> <p>g. Master and Servant. — Unsafe Premises. — Negligence Concurring with Act of Cod. — Instructions.—An instruction that if the falling of defendant’s shed upon, plaintiff was caused partly by defendant’s negligence, the mere fact that an unusual wind aided in the fall, would not relieve defendant from liability, is correct, p. 534.</p> <p>4. Master and Servant. — Obvious Defects. — Instructions.—Duty to Ash More Specific Ones. — An instruction that it is not the duty of a servant to inspect the working place for defects, but he is required to observe obvious defects, is not misleading on the ground that it omits dangers of which the plaintiff had actual knowledge, it being appellant’s duty to present a more specific instruction if desired, p. 534.</p> <p>5. Master and Servant. — Unsafe Place. — Duty of Master and Servant. — Instructions.—An instruction that defendant “was bound to know the construction of said buildings,” alleged to be defective, and that plaintiff was required to know of obvious defects, but that such defects would not preclude a recovery unless plaintiff appreciated the dangers therefrom, though not clear, is not prejudicial, when considered with another instruction clearly stating the law applicable thereto, p. 534.</p> <p>C. Master and Servant. — Obvious Defects. — Appreciation of. — Presumptions. — Instructions.—Curing by Interrogatories. — An instruction that the plaintiff, who was a mature man, was required to kuow of obvious defects, but that he might recover if he did not appreciate the dangers therefrom, though erroneous, is cured by answers to interrogatories showing that he was ignorant of the defects causing the injuries, and could not have learned thereof by the exercise of ordinary care. p. 535.</p> <p>7. Damages. — Elements.—Instructions.—An instruction that if the jury should find for the plaintiff, it should, in assessing damages, consider his loss of time, the nature and extent of his injuries, loss of health, lessening of his ability to labor, “inability to enjoy life,” pain and suffering, and if the injuries are permanent, the probable length of his life, is incorrect, his “inability to enjoy life” constituting speculative damages. American Strawboard Co. v. Foust, 12 Ind. App. 421, and Pittsburgh, etc., R. Co. v. Cozatt, 34 Ind. App. 682, overruled, p. 535.</p>

<p>From Superior Court of Marion County (71,674) ; Vinson Carter, Judge.</p> <p>Action by Amelia Rosenstein against the American Central Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Perry Circuit Court; C. ~W. Cook, Judge.</p> <p>Action by Charles B. Wilbur against the Tell City Canning Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Mortgages. — Notice.—Constructive—Where a vendor takes a mortgage as part payment of the purchase price of the land sold, and records It, subsequent purchasers of such, land are charged with constructive notice thereof, p. 556.</p> <p>2. Vendor and Purchaser. — Equities.—A vendor whose lands are subject to a valid recorded mortgage can transfer only such rights as he has in the premises, p. 556.</p> <p>3. Vendor and Purchaser.' — Mortgages.—Sale after Foreclosure Suit is Begun. — Purchasers Pendente Lite. — Lis Pendens Notice. —Where a purchaser buys mortgaged real estate after the beginning of a foreclosure suit, he becomes a purchaser pendente lite, and is bound by the decree entered in the suit, and this is true without the filing of the statutory Us pendens notice (§329 Burns 1908, Acts 1889 p. 201). p. 556.</p> <p>4. Mortgages.' — Foreclosure.—Parties.—Subsequent Purchasers.'— Deeds. — Notice.—A mortgagee, on filing a foreclosure suit, is chargeable with all deeds to such real estate, on record at the time of such filing, and if any grantee thereof is omitted as a party, his rights will not be affected, p. 557.</p> <p>5. Action. — Commencement of. — Publication of Notice. — Foreclosure of Mortgage. — A suit against a nonresident for the foreclosure of a mortgage is deemed commenced at the time of the first publication of the nonresident notice, p. 557.</p> <p>6. Deeds. — Delivery.—Burden of Proof. — The execution of a deed includes its delivery; and the burden of proving delivery rests upon the one claiming under it. p. 557.</p> <p>7. Deeds. — Delivery.—Evidence.—Appeal.—Where the evidence as to the delivery of a deed was unsatisfactory, furnishing a basis for various inferences, in many respects contradictory and uncertain, and the trial court has found that such delivery occurred subsequently to the commencement of a foreclosure suit, such decision will not be disturbed on appeal, pp. 557, 558.</p> <p>S. Deeds. — Delivery.—Leaving at Recorder’s Office. — The unexplained leaving of a deed, by the grantor, at the recorder’s office, is deemed a delivery of such deed. p. 558.</p>

<p>From Starke Circuit Court; Adrian L. Courtright, Special Judge.</p> <p>Suit by Benjamin F. Thomas against "William V. Tolley and others. From a decree for plaintiff, defendants appeal.</p>

<p>1. Appeal. — Jurisdiction.-— Street Improvements.— Statutes.— In the absence of a statute providing therefor, no appeal lies from a judgment in a street improvement proceeding, p. 568. ,</p> <p>2. Appeal. — Street Improvements.- — Statutes.-—Under section one of the act of 1909 (Acts 1909 p. 417), providing that, on appeal from a street improvement proceeding, the circuit court may confirm the order of the council, or sustain the objections thereto, “and such order of the court shall be final and conclusive upon all of the parties thereto,” no appeal lies from the judgment of the circuit court, p. 569.</p> <p>3. Appeal. — Right of. — Statutes.—The right of appeal is statutory, p. 569.</p>

<p>From Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Orin W. Baumgardner against Emery Church and another. From a judgment for plaintiff, defendants appeal.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Thomas Howell against the Princeton Coal Mining Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals.</p>

<p>1. Master and Servant. — Railroads.—Switches.—Uncoupling Engine. — Backing Engine on Another Track. — Complaint.—A complaint alleging that, in the night, defendant’s engineer ordered the plaintiff, a brakeman, to stand between the main .track and side-track and to uncouple his engine from the train, that while standing there, looking east, in the act of doing such work the engineer of a switch engine on the main track negligently backed such engine, from the west, noiselessly and without signal, upon the plaintiff, to his injury, states a cause of action, pp. 578, 580.</p> <p>2. Pleading. — Complaint.—Paragraphs.—Initial Attack on Appeal. — A complaint in two paragraphs, attacked for the first time on appeal, will be held sufficient, if either paragraph is good, p. 580.</p> <p>3. Master and Servant. — Railroads.-—Switches.—Running Down Brakeman. — Verdict.—Interrogatories.—A general verdict for a brakeman in an action against a railroad company for running a switch engine, noiselessly and without signal, against him in the night while he was obeying orders to stand between the main and side-tracks and uncouple the engine from the train on the sidetrack, is not overcome by answers to interrogatories showing that the switch engine extended over the rail- twenty-six inches and the distance between the near rails of the two tracks was eight feet, no presumptions or inferences being indulged in favor of such answers. p. 581.</p> <p>4. Negligence. — Contributory.—Verdict.—Interrogatories.—A general verdict for the plaintiff in an action for negligence is a finding that defendant was negligent, and that plaintiff was not guilty of contributory negligence, p. 581.</p> <p>5. Negligence. — Contributory.—Failing to See Visible Objects. — A. failure to see the approach of a switch engine in the night cannot be held to constitute contributory negligence as a matter of law. p. 582.</p> <p>6. Appeal. — Weighing Evidence. — Th“ Appellate Court will not weigh conflicting evidence, p. 582.</p>

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by James R. Bennett, by Ms next friend, against tbe Perry, Matthews, Buskirk Stone Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal. — Moot Questions.- — Contracts.-—Restraint of Trade. — Physicians. — Wliere a physician sold his practice in a certain county, agreeing not to prosecute his profession therein for a term of years, and, upon a violation thereof, he was enjoined to cease until the expiration of that time, his appeal will be dismissed, where it is not ready for decision before the expiration of such time.</p>

<p>From Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by William C. Jones against Isabella Irwin, as administratrix of the estate of Henry Hawkins, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Divorce. — Gruel and Inhuman Treatment. — Impairment of Mind or Body. — Whatever endangers or impairs the soundness of mind, or body, or both, may constitute a cause for divorce on the ground of cruel or inhuman treatment, p. 595.</p> <p>2. Divorce. — Cruel and Inhuman Treatment. — Refusal of Husband to Speak to, or Associate with, Wife. — Complaint.—A complaint alleging that the husband for more than two years has refused to speak to his wife, that he refuses to visit the neighbors with her, and does not permit them to visit her, states a cause for divorce, p. 595.</p>

<p>1. Specific Performance. — Contracts of Sale of Land. — Description.- — Defective.—Parol Evidence to Complete. — Where the description in a contract for the sale of real estate is consistent, blit incomplete, and its completion' does not alter or contradict that which is given, nor require that a new description should be introduced, parol evidence is admissible to complete the description and identify the property, p. 600.</p> <p>2. Contracts. — Written.—Application of, to Subject-Matter. — Description. — Parol Evidence. — Parol evidence is admissible to apply the terms of a written contract to the subject-matter thereof, since the office of a description is not to identify, but to furnish the means of identification, p. 601.</p> <p>3. Contracts. — Ambiguities.—Parol Evidence. — Parol evidence is admissible to clear up ambiguities in a written contract, the result being not to alter or vary the writing but to explain it. p. 601.</p> <p>4. Contracts. — Sales of Real Estate. — Description.—Indefinite.— Parol Evidence. — A contract by a widow for the sale of “all of her interest in the real estate formerly owned by” her deceased husband, contains a sufficient description, when identified by parol evidence, to render the contract enforceable, p. 603.</p> <p>5. Contracts. — Sales of Land. — Consideration.—Payment.—Definiteness. — A contract by which a widow agrees to sell her interest in certain property “for $3,000,” imports that such sum is payable in cash on delivery of the deed. p. 603.</p> <p>6. Contracts. — Sales of Land. — Concurrent Delivery of Deed and Payment of Consideration. — Tender.—Specific Performance.— Where a contract for the sale of land requires the consideration to be paid in cash, it is not necessary for the purchaser to make a tender, where it is shown that he was ready to pay. p. 603.</p> <p>7. Contracts. — Sales of■ Land. — Delivery.—Statute of Frauds. — A ■ written contract, that is only a written statement of an oral agreement for the sale of land, need not be delivered to take it out of the statute of frauds, p. 604.</p> <p>8. Contracts. — Validity.—Sales of Land. — Statute of Frauds. — An oral contract for the sale of land is not void, but, by reason of the statute of frauds, is merely unenforceable, p. 604.</p> <p>9. Contracts.' — Sales of Land. — Written Memorandum. — Sufficiency. — To render a contract for the sale of lands enforceable, it, or a memorandum containing the necessary parts thereof, must be in writing and signed by the party to be charged, but it is not material who has the writing,, or the manner of its execution, p. 604.</p> <p>10. Specific Performance. — Unjust Contract.- — -Incapacity of Party. — Where an aged widow who had been suffering from nervous prostration, and who was having trouble in regard to her land, in a period of excitement signed a contract for the sale thereof for an insufficient amount,, afterwards refusing to execute a deed, or to carry out the .contract, and the purchaser was not damaged except by the loss of the profits from the contract, specific performance will not be decreed, pp. 606, 610.</p> <p>11. Specific Performance. — Fairness Requisite. ■— Contracts.— Courts of equity protect the weak and aged, and refuse to enforce contracts, unless they are fair, equitable and just. p. 608.</p> <p>12. Specific Performance. — Discretion of Court. — The enforcement of specific performance of a contract is not a matter of right, but rests in the sound discretion of the court after considering the particular facts of each case. p. 610.</p>

<p>1. Limitation of Actions. — State.—Real or Nominal Party. — ■ Where the State is a real party to an action the statute of limitations does not run, but if only a nominal party, it does, and the court will search the record to ascertain the facts, p. 612.</p> <p>2. Limitation of Actions.— Auditors.— Fees. — ■ Salary. — School-Fund Mortgages. — The State is a nominal party in an action by it, on relation of the board of commissioners, to collect from a county auditor, unlawful fees, and excessive salary received by him, and for his wrongful cancelation of school-fund mortgages, p. 613.</p> <p>3. Counties. — Auditors’ Fees. — Under §7325 Bums 1908, Acts 1895 p. 319, §115, all fees taxed on behalf of county auditors belong to their respective counties, p. 613.</p> <p>4. Counties. — Auditors’ Salaries. — Excessive.-—-Right of Action.— The county is the proper party to collect any excess of salary paid to a county auditor, p. 614.</p> <p>5. Schools. — Funds.—Trusts.—Counties.—Liability for. — Counties are directly liable, as trustees, to the State for the loss of any school funds entrusted to them. p. 614.</p> <p>6. Schools. — Funds.—Counties.—Liability.—Parties to Action.— For a loss of school funds by a county, the State must recover from the county and not from the officer causing the loss. p. 615.</p> <p>7. Limitation of Actions.— Counties.— Officers.— In actions for the benefit of a county, against an officer thereof, the statute of limitations applies the same as between individuals, p. 615.</p>

<p>From Spencer Circuit Court; Boscoe Eiper, Judge.</p> <p>Action by Herbert Matthews against the Hohenstein-Hartmetz Furniture Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant. — Unguarded Rip-Saw. — Service at Time of Injury.— Complaint.— A complaint alleging that defendant operated a manufacturing establishment, that the plaintiff was employed therein to operate a rip-saw, that such saw was driven by steam power, that w'hile plaintiff was employed such saw was unguarded, to defendant’s knowledge, that it was practicable to guard such saw, that plaintiff was directed by defendant’s foreman to rip certain pieces of timber, that while doing so a piece of timber caught and jerked his hands against the saw, injuring him, sufficiently shows that defendant operated a factory, that plaintiff was working therein when he received his injuries, and that he was operating a dangerous, unguarded saw at the time he received his injuries, pp. 626, 627.</p> <p>2. Master and Servant. — Factory Act. — Dangerous Machinery.— Complaint. — Inferences.—Section 8029 Burns 1908, Acts 1899 p. 231, §9, requires, under penalty, any person engaged in manufacturing to guard all saws, when practicable, and, if guards become ineffective, to replace them; and in a complaint for injuries sustained because of a failure to guard, inferences cannot supply omitted material facts, p. 626.</p> <p>3. Pleading.— Complaint. — • Allegations.— Necessary Inferences.— A complaint containing general allegations is sufficient, if the allegations compel, but insufficient, if they merely permit, the inference of the necessary facts constituting the cause of action, p. 627.</p> <p>4. Damages. — Excessive.—The sum of $2,500 is not excessive damages for a man whose hands were badly mangled by an unguarded rip-saw, destroying the use of his hands for many purposes, p. 629.</p> <p>5. Master and Servant. — Proximate Cause. — Unguarded Saw.— Practicability of Guarding. — Jury.—What is the proximate cause of an injury and whether a proper guard on a rip-saw would have prevented the injury complained of, are questions for the jury, p. 630.</p> <p>6. Master and Servant. — Negligence.—Safe Ways, Worlcs and Machinery. — Instructions.—In an action for injuries received because of an unguarded saw, instructions defining negligence and setting out the common-law duties of masters as to furnishing safe places, tools and machinery, are not improper, p. 631.</p> <p>7. Master and- Servant. — Unguarded Saw. — Instructions.—Consideration of. — In an action under the factory act for injuries sustained by reason of an unguarded rip-saw, instructions as to defendant’s duty to furnish safe tools are not misleading, where other instructions tell the jury that the plaintiff must recover according to his complaint and that the plaintiff’s injuries were caused by the unguarded condition of the saw. p. 631.</p> <p>S. Master and Servant. — Unguarded Saw. — Servant’s Duty. — Instructions.- — -An instruction that it was not the servant’s duty to furnish a guard for an unguarded rip-saw on which he was working, that it was not his duty to guard the saw, and that he need not complain thereof, is not erroneous, p. 631.</p> <p>9. Master and Servant. — Unguarded Saw. — Spreader.—Failure to Use. — Acquiescence of Master. — Instructions.—An instruction that if defendant furnished a spreader for a rip-saw, and instructed plaintiff not to use the saw without attaching it thereto, and that plaintiff failed to do1 so for four or five weeks, to defendant’s knowledge, then, if it was practicable to guard the saw, and plaintiff was injured by reason of such failure to guard, the defendant is liable, is correct, such spreader being used for a different purpose than that of a guard, p. 631.</p> <p>10. Trial.- — ■ Instructions.— Interrogatories.— Answers.— “Testimony.” — “Evidence."—An instruction that the jury should answer the interrogatories according to the weight of the “testimony,” and that if the “evidence” showed there was no “testimony” relating to the matter inquired about, the answer should be that there was no “evidence,” is not misleading, though “testimony” was interchangeably used for “evidence,” “testimony” being only the declarations of witnesses, p. 632. •</p> <p>11. Master and Servant. — Unguarded Saw. — Contributory Negligence. — Instructions.—An instruction that defendant is liable for failing to guard the rip-saw on which plaintiff was working, when injured, if practicable to do so, is not bad on the ground that it ignores contributory negligence, where other instructions fully explained the effect of contributory negligence, p. 633.</p> <p>12. Master and Servant.' — Unguarded Sano.— Notice. — ■Contributory Negligence.— Evidence.— Evidence showing that plaintiff knowingly operated an unguarded rip-saw does not show contributory negligence, p. 633.</p>

<p>1. Action. — Process.—Change of Venue. — Quashing Service. — Alias Summons. — Jurisdiction.—Where an action was brought against a town and summons was issued and served, and a change of venue taken from the county, and the summons subsequently quashed and its service set aside, the court may properly issue an alias summons from such latter .county and the court will, on proper service thereof, obtain jurisdiction, the action having been brought in the proper county, p. 638.</p> <p>2. Pbocess. — Oral Direction for. — Failure to Endorse on Complaint. —Continuance.-—Appeal.—Where the record does not disclose any order of court, or endorsement on the complaint, for the issuance of an alias summons, the presumption is that the plaintiff orally directed the issuance thereof; and if it commanded an appear- • anee at a time not authorized by law, it would be a valid service for the next term, the defect being ground for a continuance only, p. 639.</p> <p>3. Pbocess.— Defective.— Waiver.— Appearing to Amended Complaint.— Ashing Change of Venue.— Appeal.— Appellant waives any defect in the service of a summons issued from the court to which a cáse had been taken on a change of venue, by asking for a change from such county, and by entering a full appearance to an amended complaint filed in the county to which the case was sent on appellant’s motion, such defect not going to the merits of the controversy, and therefore not constituting reversible error, p. 639.</p> <p>4. Pleading. — Insufficient Plea in Abatement. — Defective Demurrer. —It is not erroneous to sustain a defective demurrer to an insufficient plea in abatement, p. 640.</p> <p>5. Appeal.- — Presenting Questions. — Changes of Venue. — Independent Assignment of Rulings on. — A ruling on a-motion for a change of venue cannot be assigned independently on appeal, since it constitutes a ground for a new trial only. p. 640.</p> <p>6. Negligence. — Towns.—Defective Sidewalks. — Notice of Injury.— Statutes. — Complaint.—The act of 1907 (Acts 1907 p. 249, §S962 Burns 1908), requiring persons injured because of a defective sidewalk to notify the town thereof within a certain time, has no retroactive effect, and a complaint for damages for injuries prior thereto need not allege compliance therewith, p. 640.</p> <p>7. Municipal Cobpobations.— Defective Sidewalks.— Liability.— Towns are liable for negligence in the maintenance of their sidewalks. p. 641.</p> <p>8. Limitation of Actions. — Process.—Defective Ansioer. — An answer showing that the summons, in an action against a town, directed the sheriff to summon the marshal of the defendant town, that the town should have been summoned, and that two years had elapsed since the happening of the injury complained of, is bad, the statute (§321 Burns 1908, §317 R. S. 1881) curing defective process, where it is sufficient to inform defendant of the action against him, of the name of the plaintiff, and of the time for appearance, p. 642.</p> <p>9. Pleading. — Pleas to Jurisdiction. — Picas in Bar. — Joining.—A plea to the jurisdiction, joined with a plea in bar, may be stricken out on motion, or a demurrer thereto may be sustained, the plea to the jurisdiction being required to precede the plea in bar (§371 Burns 190S, §365 R. S. 1881). p.643.</p> <p>10. New Tbial. — Change of Judge. — Affidavit for. — Omission of notarial Seal. — A motion for change of judge, based upon an affidavit from which the notary public’s seal was omitted, should be overruled, the attestation being void (§9534 Burns 190S, §5963 R. S. 1881). p.643.</p> <p>11. Municipal Cokpokations. — Defective Sidewalks. — Instructions. —An instruction, in an action against a town for damages because of injuries sustained on account of a certain defective sidewalk, that it was the duty of- the town to keep all sidewalks within the town in a good and safe condition, is not prejudicial on the ground that the town was under no duty to keep private walks in order, p. 643.</p> <p>12. Tbial. — Instructions.—Duplication.—It is not erroneous to refuse to duplicate instructions, p. 644.</p> <p>13. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 644.</p> <p>14. New Tbial. — Improper Admission of Evidence. — Subsequent Withdrawal. — Appeal.—Reversible error is not shown in the improper admission of evidence, where such evidence was subsequently withdrawn by proper instructions, p. 644.</p> <p>15. Appeal. — Mandate.—Death.—Where appellee died after submission of an appeal, a judgment of affirmance will be dated as of the time of submission, p. 644.</p>

<p>Prom Superior Court of Madisou Couuty; Cassius M. Greenlee, Judge.</p> <p>Aetiou by Iiarsbaw, Puller & Goodwin Company against tbe Penn-Ameriean Plate Glass Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom. Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Jerome D. XJlay and others against William Bentle, Sr., and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Municipal Corporations. — Town Trustees. — Acceptance of Alley Improvements. — Judicial Acts. — A board of trustees of a town in accepting alley improvements, acts in a quasi-judicial capacity, p. 675.</p> <p>2. Municipal Corporations. — Alley Improvements. — Acceptance.— Fraud. — A town board’s acceptance of alley improvements, secured by fraud, will be set aside, p. 675.</p> <p>3. Municipal Corporations. — Acceptance of Alley Improvements. ■ — Setting Aside. — Fraud.—Collateral Attack. — Cross-Complaint.— In a suit by a contractor for alley improvements, to foreclose a lien therefor, the defendant property owner may, by cross-complaint, have such acceptance set aside, for the contractor’s fraud, therein, such cross-complaint constituting a direct attack, p. 675.</p> <p>4. Municipal Corporations.— Alley Improvements.— Fraud.— Bribery. — Evidence. — Evidence showing that an alley improvement contractor furnished to the town inspector money with which to discount the pay of laborers, that such inspector realized from $2 to $3 a day by doing so, that the engineer and the town board relied upon his reports in the acceptance of the work, and that the contractor, with the inspector’s knowledge, used 590-barrels of cement, instead of 960, as provided in the contract, by reason whereof the work was defective, shows fraud sufficient to set aside the acceptance, p. 676.</p> <p>5. Municipal Corporations. — Alley Improvements. — Acceptmce.— Setting Aside. — Fraud of Contractor. — In order to set aside a town board’s acceptance of an alley improvement, it is not necessary to show fraudulent conduct by the trustees, fraud on the contractor's part in securing such acceptance being sufficient, p. 676.</p> <p>6. Municipal Corporations. — Alley Improvements. — Acceptance.-— Fraud. — Aggrieved Party. — The property owners who are required to pay for alley improvements are aggrieved parties, where fraud is practiced and, by proper proceedings, they may avoid payment, p. 676.</p>

<p>Prom Benton Circuit Court; James T. Saunclerson, Judge.</p> <p>Action by William Bowman against Paul Kuhn and others. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Suit by the Citizens National Bank against Otto L. Klauss, as Treasurer of Vanderburgh County. Prom a decree for plaintiff, defendant appeals.</p>

<p>1. -Principal and Surety. — Married Women. — Estoppel in Pais.— . A married woman cannot become a surety or guarantor, and cannot be bound as such except by an estoppel in pais. p. 691.</p> <p>2. Estoppel. — Knowledge of Facts. — Married Women. — Suretyship. —A married woman cannot be bound by an estoppel in pais where the other party to the contract knew the facts, p. 691.</p> <p>3. Landlord and Tenant.— Surrender of Possession.— Future Rents. — A surrender of possession to the landlord, and an acceptance by him, extinguish the lease, as well as liability for future rents, p. 691.</p> <p>4. Appeal. — Instructions.—How Considered. — Instructions should be considered as a whole, and if they fairly- state the law, the judgment appealed from will be affirmed, p. 692.</p>

Prom Clark Circuit Court; 'William, O. Utz, Special Judge. Action by Louise Duetz, as executrix of the will of Bernard Duetz, deceased, against the Louisville and Southern Indiana Traction Company. Prom, a judgment for defendant, plaintiff appeals.

<p>1. Appeal. — Jurisdiction.—Appellate Court. — The Appellate Court has no original jurisdiction, its powers being limited to the correction of errors of the trial courts, p. 696.</p> <p>'2. Appeal. — Legalizing Acts. — Effect of, on Decision. — The passage of a legalizing act after an appeal has been taken does not authorize a reversal of a judgment which was correct at the time it was rendered, y. 696.</p> <p>3. Appeal.— Constitutional Law.— Jurisdiction.— The Appellate Court has no jurisdiction to determine constitutional questions, p. 697.</p>

<p>1. Trial. — Verdict.—Return of. — Judicial Acts. — Record.—Section 570 Burns 1908, §544 R. S. 1881, providing that the verdict must be in writing, signed by the foreman “and when returned into court the foreman shall deliver” it, imports that the verdict shall be returned by the jury as a body into open court; and the act of the judge in receiving the verdict' is a judicial one. p. 699.</p> <p>2. Trial. — Verdict.—Interrogatories.— Conflict.— Sow Determined. —In determining whether there is an irreconcilable conflict between the general verdict and the answers to interrogatories, only the pleadings, verdict and answers will be considered, p. 700.</p> <p>3. Trial.-— Verdict.— Interrogatories. — ■ Return of.— Record — 'The record on appeal should show affirmatively that the verdict and answers to interrogatories to the jury were returned into open court, and not merely that they were filed with the clerk, p. 700.</p> <p>4. Appeal. — Record.—Inferences.—The court on appeal will indulge inferences to sustain the regularity of the trial court’s procedure, but an appellant must affirmatively show harmful rulings in order to overcome the presumption In favor of the decision of the trial court, p. 700.</p> <p>5. Carriers. — Railroads.—Show Trains. — Contracts.—Negligence.— Where the owner of a circus, including cars for transportation, hired a railroad company to furnish the motive power and necessary train crew for transportation, further agreeing to save the railroad harmless from any damages caused by negligence in such transportation, and a collision occurs because of such crew’s negligence, causing the death of an employe of the circus company, the railroad company is not liable, p. 701.</p> <p>6. Trial. — Interrogatories.—Issues.-—Interrogatories must call for facts within the issues, p. 703.</p> <p>7. Pleading. — General Denial. — Negligence.—The .answer of general denial in a negligence case puts in issue every fact necessary to sustain the charge of negligence, p. 703.</p> <p>S. Negligence. — Duty.—Violation of. — To establish negligence a duty and a violation thereof must be shown, p. 703.</p> <p>9. Negligence.— Carriers. — ■ Relation.— Interrogatories.— In an . action by the administratrix of an employe of a circus company against a railroad company for negligence, it is proper to submit an interrogatory asking as to any relationship existing between the railroad company and the decedent, p. 703.</p> <p>10. Carriers.. — ■ Negligence. — ■ General Denial,— Contract of Transportation. — Evidence.—In an- action by the administratrix of a deceased employe of a circus company against a railroad company for negligence in transporting such employe, the contract of transportation between the railroad company and the circus company is admissible in evidence under the general denial to the complaint. _p. 703. i</p> <p>11. Carriers.— Private.— Circus Companies.— Contracts.— Public Policy. — Contracts between circus companies and railroad companies by which the railroad companies transport the circus trains, but without liability for negligence, are not contrary to public policy, p. 704.</p>

<p>From Steuben Circuit Court; Emmet A. Bratton, Judge</p> <p>Action by Anna Treharne against Lewis I. Matson. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Quieting Title.- — Separate Tracts. — Misjoinder.—Question of.— Sow Raised. — Where plaintiff sues to quiet title to separate tracts of land, defendants may raise the question of misjoinder of causes by requiring the plaintiff to set forth the sources of title, and then by filing a motion to separate causes; but the question can not be raised on the evidence, p. 721.</p> <p>2. Judgment.- — Res Judicata. — Foreclosure.—Public-Service Corporations. — Contracts.—Assignment of. — Estoppel.—Where a trust company sued to foreclose its mortgage upon the property of a public-service corporation, including its contract with a city, and all of the creditors of such corporation were made defendants, and a receiver was appointed whose powers were subsequently enlarged upon the petition of an intervening creditor, to that of a general receiver for the creditors of an insolvent corporation, and who was authorized to sell all of the property of such corporation, a defendant creditor is estopped from alleging in a subsequent proceeding either that such alleged corporation was not a corporation de jure, or de facto, and, therefore, had no power to execute the mortgage, that it was not the owner of the property, or that the contract with the city was not a subject of sale by the receiver, pp. 725,729.</p> <p>3. Mortgages. — Foreclosure.— Judgment.— Estoppel.— Defendants in a mortgage foreclosure suit are estopped by a decree of foreclosure from subsequently asserting any right or interest in the property that might have been set up at the time .as a defense in the foreclosure suit. p. 726.</p> <p>4. Receivers. — Powers.—Sales.—Corporations.—Insolvency.— A receiver is an officer of the court, and where the powers of a receiver appointed to take charge of the property of a corporation pending foreclosure, are enlarged to that of a receiver for the benefit of creditors of such corporation, the court has jurisdiction to order the sale of the property upon whatever terms the court may think proper, and to convey through the receiver a perfect title thereto, p. 727.</p> <p>5. Receivers. — Sales.—Orders for. — Foreclosure.—An order for a receiver’s sale of property, entered upon a hearing of the receiver’s petition therefor, is not rendered less effective because a foreclosure was also entered as a part of the decree, p. 728.</p> <p>6. Courts.— Jurisdiction.— Receivers. — ■ Intervening Petitions.— A court has jurisdiction, upon an intervening petition of a creditor, to enlarge the power of a receiver, appointed to take charge of the property of a corporation pending a foreclosure, to that of a receiver for the general creditors of the corporation, p. 728.</p> <p>7. Corporations.— Street Railroads. — ■ Right to Hold Property. —■ IIow Questioned. — Whether a street railroad company has the right to purchase and hold land on which a gristmill and elevator are situated is a question which the State alone can raise, p. 729.</p> <p>8. Judgment. — Res Judicata. — Receiver’s Sale. — Setting Aside. — A judgment for defendant in a suit by a railroad company to set aside a receiver’s sale estops such company from questioning the regularity or validity of the proceeding by which such sale was authorized, p. 729.</p> <p>9. Deeds. — Description.-—Purpose.—The purpose of a description in a deed is merely to furnish a means of identification of the land conveyed, p. 731.</p> <p>10. Deeds. — Description.—Railroad Right of Way. — A description in a deed, in form: “Commencing at the northwest corner of the land now occupied by the * * * Light Company; * * * ■ thence northwesterly along the west line of the * * * railway, as now laid out and occupied by it, * * * to the northwest corner of said right-of-way; * * * thence northeasterly to the east line of said right-of-way; thence southeasterly * * * to a point twenty-five feet oast of the place of beginning; thence west to the place of beginning,” is sufficient, p. 731.</p>

<p>From Jackson Circuit Court; John M. Lewis, Special Judge.</p> <p>Claim of Robert C. Light against Benjamin F. Schneck, administrator of the estate of Louis Schneck, deceased. From a judgment for defendant, claimant appeals.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gil■christ, Judge.</p> <p>Action by Elizabeth Peters and others against the Brotherhood •of Painters, Decorators and Paperhangers of America. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Miami Circuit Court; Joseph N. Tiilett, Judge.</p> <p>Action by Martha Olinger against the Fort Wayne and Wabash Valley Traction Company. From a judgment for plaintiff for $400, ■defendant appeals.</p>

From Jackson-Circuit Court; Joseph H. Shea, Judge. Suit by Emma C. Vogel, executrix of the last will and testament of Valentine Vogel, deceased, against George L. Hancock and another. From a decree for defendants, plaintiff appeals.