Volume 48 — Indiana Appellate Court Reports

<p>From Dubois Circuit Court; Thomas Duncan, Special Judge.</p> <p>Action by the Ferdinand Railway Company against Edward Link and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Evidence. — Judicial Notice. — Sister-State Laws. — Rule of Decision. — Courts do not take judicial notice of the laws of other states, and the law of the state in which the action is brought determines prima facie the rule of decision, a party depending upon the law of another state being required to plead and to prove it. p. 5.</p> <p>2. Justices oe the Peace. — Procedure.—Defenses.—When Required to he Pleaded. — In an action before a justice of the peace, all defenses except the statute of limitations, set-off, matter in abatement, and non esi factum, may be given in evidence under the general denial (§1749 Burns 1908, §1400 R. S. 1881). p. 5.</p> <p>3. Bills and Notes. — Execution in Another State. — Presumptions as to Law Governing. — California.—Civil Law. — Though the ordinary presumption is that a note executed in another state is governed by the common law as interpreted and applied in this State, such presumption does not obtain for the State of California, the court taking judicial notice that it constituted a part of Mexico, and was not originally settled by English people, and was therefore governed by the civil law, unless such law was superseded by subsequent constitutional or statutory enactment, p. 5.</p> <p>4. Evidence. — Judicial Notice. — Historical Facts. — Courts of other states judicially know that the civil law prevailed in California at the time of its admission into the Union, but they do not judicially know whether the civil law has been changed since that time. p. 7.</p> <p>5. Bills and Notes. — Execution in California. — Presumption as to Governing Law. — There being no presumption that the common law prevails in California, such state having been governed by the civil law, the courts of this State, in an action upon a note executed in that state, will determine the validity of the note by the laws of this State, where the laws of California have not been proved, p. 8.</p> <p>6. Bills and Notes. — Husband to Wife. — A note executed by a husband to his wife is not void because of the relationship of-the parties, p. 8.</p> <p>7. Bills and Notes. — Duress.—Concealment of Husband's Clothing. — Attorneys.—A wife who was living in separate apartments from her husband in San Francisco at the time of the San Francisco earthquake, and who concealed her husband’s best suit and refused to disclose its whereabouts until he executed the note in suit which represented, as she claimed, a part only of his upkeep, is not guilty of duress of goods, as a matter of law, on the ground that her husband was a lawyer and was under the dire necessity of presenting a neat appearance to hold his clients, especially where there is a failure of proof that he had any clients, p. 8.</p> <p>8. Appeal. — Death.—Mandate.—Where appellant dies before an affirmance of the judgment appealed from, it will be affirmed as of the date of submission, p. 11.</p>

From Pulaski Circuit Court; J. C. Nye, Judge. Action by George A. Ginther, as administrator of the estate of Joseph W. Davis, deceased, against the Chicago and Erie Railroad Company. Prom a judgment for plaintiff for $5,375, defendant appeals.

<p>Prom Payette Circuit Court; George L. Gray, Judge.</p> <p>Action by Charles P. Yance against the Oliver Typewriter Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Superior Court of Marion County (77,581); Vinson Carter, Judge. Action by tbe Gem Garment Company (Edwin H. Shedd, as receiver thereof being substituted as appellant), against the American Credit Indemnity Company of New York. Prom a judgment for defendant, plaintiff appeals.

<p>Prom Johnson Circuit Court; William, A. Johnson, Special Judge.</p> <p>Action by Nancy J. Haworth against James T. Polk. Prom a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by Alice Meyer, individually, and as guardian of Edith Schrader and others, against John Schrader and others. From a judgment for the plaintiff, as guardian, defendants appeal.

<p>Action by Ida Slider against the City of Indianapolis. Prom a judgment on a verdict for the plaintiif for $1,200, defendant appeals.</p>

<p>1. Appeal. — Failure to Present Questions.- — Assignment of Errors. —Tbe failure of tbe appellant to question the sufficiency of an answer' in his assignment of errors is fatal to the raising of any question thereon, p. 46.</p> <p>2. Appeal. — Answer.—Special Findings. — Conclusions of Earn.— Where the special findings show the same facts as are set out in an answer, the question of the sufficiency of the answer is unimportant, the exceptions to the conclusions of law raising the same questions, p. 46.</p> <p>3. Bills and Notes. — Payable in Bank. — Pleading and Proof. — In an action on a note payable in bank, it is not necessary that the holder should plead and prove that the note was duly presented for payment at maturity, at such bank, but the maker may show that he was prepared to pay at such time and place, thereby avoiding any penalty for nonpayment, p. 50.</p> <p>4. Bills and Notes. — Payable in Bank. — Payment by Deposit.— Agency. — A note payable in bank is not discharged by the mere deposit in such bank of sufficient money to pay it, since the bank is not the holder’s agent for receiving payment unless such holder has deposited such note in such bank for collection, p. 50.</p> <p>5. Bills and Notes. — Mortgages.—Maturity.—Default of One Note of Series. — Penalties.—A provision in a mortgage that the failure of the maker of a series of notes secured by the mortgage to pay each note at its maturity shall cause the remaining ones to become due, is not in the nature of a penalty, nor a forfeiture. p. 51.</p> <p>6. Mortgages. — Default in Payment.- — -Equitable Relief. — Where a mortgagor defaults in the payment of one of a series of notes, thereby causing the entire debt to become due, equity will refuse relief, except for good cause shown, p. 51.</p> <p>7. Banks. — Deposits.—Using for Payment of Note Payable at Bank. — The deposit for collection of a note payable in bank authorizes such bank to apply the maker’s general deposit in the payment thereof; and a failure to present the note at such bank for payment, when the maker has deposited money for its payment, relieves the maker of further interest or costs, p. 51.</p> <p>8. Mortgages. — Failure to Pay. — Excuses.—Inequitable Misconduct of Mortgagee. — Where a mortgagee’s inequitable, but not necessarily fraudulent misconduct is the cause of the mortgagor’s failure to pay a note at its maturity, equity will not permit the foreclosure of the mortgage, provided the mortgagor is ready to pay the note. pp. 52, 55.</p> <p>9. Bills and Notes. — Default.—Deposits in Bank. — Foreclosure for Entire Debt. — Tender.—Where the maker of a series of notes had money on deposit with which to pay the one to become due, the payee’s failure to present it, and his avoidance of the maker, in order that the provision in the mortgage might take effect, making the entire debt due upon default in the payment of any note at its maturity, will preclude his enforcement of such provision, the maker having made a tender in court of the sum due. pp. 54,55.</p> <p>10. Fraud. — Question of. — Inferences.—Fraud, when relied on as a cause of action, or as a defense, must be found as a fact, and not be left merely to inference, p. 55.</p> <p>11. Appeal. — Weighing Evidence. — Where there is some evidence tending to sustain the facts found, the trial court’s decision will not be disturbed for a want of evidence, p. 55.</p>

Prom Miami Circuit Court; Joseph N. Tillett, Judge. Action by Thomas Lauder, as administrator of the estate of Harry E. Lander, deceased, against the Toledo, St. Louis and Western Railroad Company. Prom a judgment on a verdict for plaintiff for $5,000, defendant appeals.

<p>1. Trial. — Special Findings. — Purpose.—The purpose of a special finding is to set out the ultimate facts proved, and not conclusions therefrom, and, to authorize a recovery, such findings mus l contain every fact necessary thereto, p. 72.</p> <p>2. Negligence. — Question of Law or Fact. — Negligence is sometimes a question of fact, sometimes a question of law and sometimes a mixed question of law and fact; but where the facts are undisputed, or where a special finding is made, negligence becomes a question of law. p. 73.</p> <p>3. Negligence. — Proximate Cause. — Question of Law or Fact.— Where the facts are undisputed, what is the proximate cause of an injury is a question of law. p. 73.</p> <p>4‘. Trial. — Conclusions of Law. — Defects.—Correct Judgment.— The failure correctly to state conclusions of law, where a correct judgment is rendered on, the facts found, constitutes harmless error, p. 73.</p> <p>5. Telegraphs and Telephones. — Suspending Uninsulated Telephone Wire over Trolley Wire. — Negligence.—The maintenance of an uninsulated telephone wire over a trolley wire constitutes negligence, pp. 73,75.</p> <p>6. Electricity. — Use of. — Care Required. — Electricity is highly dangerous, and persons making use thereof are required to use care commensurate with the dangers thereof, p. 74.</p> <p>7. Telegraphs and Telephones. — Eleetrieity.—Injury to Animals on Private Grounds. — Where a telephone company maintained an uninsulated wire over a trolley wire, and such telephone wire broke and fell on the trolley wire, thereby becoming charged with electricity and killing plaintiff’s horses, the fact that such horses, at the time they were killed, were on private property, does not affect such company’s liability, so long as they were there rightfully, p. 74.</p> <p>8. Telegraphs and Telephones. — Maintenance of Telephone Wire over Trolley Wire. — Injuries to Animals. — Proximate Cause.— The maintenance of an uninsulated telephone wire over a trolley wire, such telephone wire breaking during a storm and falling upon the tfolley wire, thereby killing plaintiff’s horses, constitutes the proximate cause of the death of such horses, p. 74.</p> <p>9. Negligence. — Proximate Cause. — What is. — The proximate cause of an injury or death is the decisive cause, p. 74.</p> <p>10. Negligence. — Contributory.—Burden of Proof. — Destruction of Property. — In actions for tbe destruction of property by negligence, the burden of proving freedom from contributory negligence is upon tbe plaintiff, p. 75.</p> <p>11. Negligence. — Contributory.—Freedom From. — Special Findings. — Telephone Wires. — Driving over. — Special findings that defendant telephone company’s broken wire, heavily charged with electricity, was lying upon the ground, which was covered with grass and weeds tending to obscure the wire, and that plaintiff’s servant, who was competent and who, in a careful manner, drove plaintiff’s team upon it, both horses being killed, sufficiently show freedom from contributory negligence, p. 75.</p> <p>12. Negligence. — Prowimate Cause. — Contributory FegUgence.— Where plaintiff shows that defendant’s negligence was the proximate cause of the death of his two horses, and that plaintiff did not contribute thereto, he is entitled to recover, p. 76.</p>

<p>Prom Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Joseph Schoenig against the City of Indianapolis. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. New Telal. — Oomplamt.—Exhibits.—Foreign Affidavits. — Authentication. — An affidavit, certified by an officer of a sister state and attached as an exhibit to a complaint for a new trial on the ground of newly-discovered evidence, after the term, cannot be considered as a part thereof where it is not authenticated as required by §498 Burns 1908, §475 R. S. 1881, providing that “when any affidavit is taken in another state, and certified by the officer or justice of the peace taking the same, under his hand and seal of office, if he have any such seal, and attested by the clerk of the circuit or district court, or court of common pleas of the county where such officer exercises the duties of his office, under the hand of the clerk and seal of his court, the Clerk also certifying that the officer or justice of the peace is, by the laws of said state, duly empowered to administer oaths * * * such affidavit shall be deemed sufficiently authenticated.” p. 87.</p> <p>2. New Teial. — Neioly-Discovered Evidence. — Hoto Shown. — Oomplamt. — A verified complaint for a new trial on the ground of newly-discovered evidence, after the term, setting out the name of the witness relied upon and the facts to which he will testify, sufficiently shows such newly-discovered evidence without an exhibit setting out the authenticated affidavit of the witness, p. 88.</p> <p>3. Pleading. — Motion for New Trial. — Newly-Discovered Evidence. —In determining the sufficiency of a motion for a new trial on the ground of newly-discovered evidence, the court can look only to the facts set out in affidavits on file. p. 89.</p> <p>4. New Teial. — Action for. — Newly-Discovered Evidence. — Procedure. — The procedure in an action for a new trial on the ground of newly-discovered evidence, after the term, is similar in pleading and proof to any other civil action, p. 89.</p> <p>5. New Teial. — Newly-Discovered Evidence. — Diligence.—Complaint. — A complaint for a new trial, after term, on the ground of newly-discovered evidence, must set out the facts showing the requisite diligence to discover such evidence before the trial, p. 90.</p> <p>6. New Teial. — Netoly-Dlscovered Evidence. — Diligence.—Absent Witness. — Complaint.—A complaint for a new trial, after the term, on the ground of newly-discovered evidence, alleging that the witness whose testimony was relied upon as a basis for securing such new trial was a defaulter and had absconded on August 8, 1907, and that from that time until his arrest, on April 28, 190S, appellant made diligent search for him in all parts of the world, but could not find him, shows sufficient diligence up to the time of the arrest, but not afterwards; and as neither the complaint nor the judgment sets out the date of the trial, the complaint is insufficient to show proper diligence before such trial, p. 90.</p>

<p>From Superior Court of Yigo County; John E. Cox, Judge.</p> <p>Action by Harry C. Crampton against Isaac Leventhal. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Assignments of Errors- — Joint.—Several.—Husband and Wife — Where a landowner and his wife jointly and severally assign errors, on appeal, in a condemnation case, whether such joint assignment and the wife’s separate assignment present any question will not be determined where the landowner’s separate assignment presents all the questions, p. 98.</p> <p>2. Eminent Domain. — Railroads. — Damages. — Instructions.—In an action for the appropriation by a railroad company of a tract of land including a house, an instruction that “evidence has been permitted * » * as to the value of the walls and foundation of the building * * * and the value of other separate parts of said building, and also of a well on the land,” and that “the real question * * * is the fair market value of the improvements taken as a whole, and as they existed on the real estate appropriated” on the day of the filing of the instrument of appropriation, is not prejudicial, where the case was tried, and evidence admitted, on the theory that the damage should cover the depreciation in value of the land and improvements, and where another instruction was given stating that “the measure of damages is the difference in the value of the real estate at the time of the appropriation, and the value of the residue after1 the strip is taken under the appropriation proceedings,” and that “the words ‘real estate’ include both the land and the improvements thereon.” p. 98.</p> <p>3. Eminent Domain. — Damages.—Instruction.—“Should" Consider Evidence. — In an eminent domain proceeding, an instruction that the jury “should” consider the evidence of the amount paid by the defendant for the real estate in question, along with all the other evidence in the ease, in determining the damages, is not erroneous, since it is the duty of the jury to consider all the evidence and give each particular part thereof the weight it deserves, p. 99.</p> <p>4. Eminent Domain. — Damages.—Specific Future Use. — In an eminent domain case, an instruction that opinions of witnesses as to the damages sustained, based upon the value of the property to the defendants for an intended specific future use “should be disregarded so far as [they are] so based upon the value for an intended specific future use,” is correct, p. 100.</p> <p>5. Eminent Domain. — Evidence. — Appraisers’ Report. — Instruction Curing Erroneous Admission of. — In an eminent domain proceeding, an appeal to the circuit court compels a trial of the case de novo, and the admission of evidence showing the amount of the assessment of damages by the appraisers is erroneous, but an instruction that the cause is on trial de novo regardless of such appraisement, that the jury has nothing to do with such appraisement, and that “it is not even evidence of any character * * * and [the jury] should not consider it at all,” cures such error, especially where the evidence shows that substantial justice has been done. p. 100.</p>

<p>1. Municipal Corporations. — Officers.—Fire Chief. — Removal.— Under §8781 Burns 1908, Acts 1905 p. 219, §160, providing that “every member of the fire and police forces, and all other appointees of the commissioners of public safety, shall bold office until they are removed by the board” and that “they may be removed for any cause other than politics,” after a bearing upon preferred charges, a fire chief of a city of the third class cannot be removed for political reasons, p. 110.</p> <p>2. Municipal Corporations. — Officers.—Fire Chief. — Under §8780 Burns 1908, Acts 1905 p. 219, §159, providing that the board of public safety “shall appoint * * * a chief of the fire force and all other officers, members and employes of such fire” force, such chief is a public officer and can be discharged from such office only as the statute directs, p. 110.</p> <p>3. Municipal Corporations. — Firemen. — Fire Chief. — Salary.— Complaint. — A complaint in two paragraphs, the first of which alleges that the plaintiff was fire chief of defendant city of the third class, that the board of safety discharged him for political reasons only, and that a certain sum is due to him as salary, the second, alleging that he had been a member of the fire force for twenty years and had never been dismissed and that there was due to him a certain sum, is sufficient, such discharge being void, such complaint entitling plaintiff to recover upon one paragraph but not upon both. pp. 110,114.</p> <p>4. Oehcees. — De Facto. — De Jure. — Salaries.—Quo Warranto.— Where a de facto officer is in possession and performing the duties of an office, the de jure officer, to recover the salary, must first establish his right to such office by a quo warranto proceeding, p. 112.</p> <p>5. Municipal Cobpobations. — Fvre Chief. — Salary.—Answer.—In an action by a chief of the fire department of a city of the third class for salary as chief and also as a fireman, answers alleging that 'the plaintiff surrendered and abandoned the position as fire chief and as a fireman are sufficient on demurrer, since they constitute argumentative denials, p. 114.</p> <p>6. Oppicebs. — Salary.—Performance of Duty. — The salary of an official position belongs to the officer as an incident to the office and does not depend upon the performance of the duties of such office, p. 114.</p> <p>7. Municipal Cobpobations. — Firemen.—Salary.—Performance of Duty. — The statute makes provision for the appointment, compensation and removal of city firemen, and since their duties are of a public nature they are so far official that either a chief or a fireman is entitled to his salary as an incident to the position, whether he performs the duties of such position or not. p. 114.</p> <p>8. Pleading. — Rulings.—When Harmless. — Error in overruling a demurrer to a paragraph of answer is harmless, where no evidence was introduced in support of such answer, p. 115.</p> <p>9. Municipal Cobpobations. — Firemen. — Salaries. — Evidence.— Evidence that the plaintiff was a fire chief in a city of the third class, that the board of safety appointed another, that plaintiff introduced the new appointee and asked to be assigned to duty under him and that he was never so assigned, does not support a verdict for defendant, where one paragraph of complaint alleged that plaintiff was a fire chief and that such board discharged him for political reasons only, and another alleged that he was a fireman and had never been discharged, p. 115.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Paul E. Bartrom, by his next friend, against the City of Huntington. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. New Tbial. — Gromds.—Special Findings. — Questions relating to the special findings in a case cannot properly be made grounds for a new trial, p. 125.</p> <p>2. Contbacts. — Consideration.—Use of Property. — In an action for the use of an engine, boiler, and drilling machinery, one paragraph of the complaint alleging an agreement by defendant to pay a reasonable compensation for the use of such property, the court finding that defendant had the possession and use thereof for forty-seven days, a sufficient consideration to support the contract is shown, p. 126.</p> <p>8. Contbacts. — “Use” of Property — In an action by plaintiff for the use of its property by defendant, a judgment for the “use” thereof for the time defendant had the possession thereof was proper, though defendant did not actually use the property during the whole of such time. p. 126.</p> <p>4. Contbacts. — Use of Property. — Custom.—In an action for the use of property for the repair of an oil well after “shooting,” the custom of furnishing such property free before “shooting” has no application, p. Í26.</p> <p>5. Contbacts. — Varying by Proof of Custom. — In an action for the agreed reasonable price of property furnished for use in repairing an oil well, proof of a custom of furnishing the free use of such property is inadmissible, p. 127.</p> <p>6. Evidence. — Inadmissible.—Introduction of. — Objecting to Similar. — The fact that a party made no objection when its opponent introduced incompetent evidence in the former’s favor does not estop such party from objecting to similar incompetent evidence offered against it. p. 127.</p>

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by William S. Woods against Everett Halstead and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Master and Servant. — Relation of. — Mines.—Shot Fivers. — A shot firer in a coal mine is a servant of the operator of the mine whether employed directly by such operator, or indirectly, as an assistant to the miners, pp. 141,143.</p> <p>2. Master and Servant. — Relationship.—Burden of Proof. — Variance. — In an action by a coal miner for injuries received, the burden is upon him to show that the relationship of master and servant exists between him and defendant; and he must recover, if at all, upon the cause of action alleged, p. 142.</p> <p>3. Mines. — Duties of Inspection. — Reliance upon Performance of.— It is the common-law and the statutory duty of the operator of a coal mine to inspect the working places of miners and keep them in a reasonably safe condition for the use of servants; and an employe has the right to rely upon the operator’s performance of such duty. p. 142.</p> <p>4. Master and Servant. — Concurrent negligence of Fellow Servant.- — Fffeet.—The concurrent negligence of a fellow servant with that of the master in producing an injury to a servant does not relieve the master from liability, p. 142.</p> <p>5. Master and Servant. — Coal Mines. — Shot Fivers. — Defective Partitions. — A complaint by a shot firer in a coal mine, alleging that the plaintiff was employed by defendant as a servant in its coal mine, that neither the defendant nor its mine boss visited the rooms in the mine at any time, that the pillars between the rooms were negligently permitted to be made less than fifteen feet thick, that defendant knew thereof and plaintiff did not, that a fellow servant, ignorant of such condition of the partition, bored a hole therein, placed and fired a shot therein, to the injury of plaintiff, who was in an adjoining room, and that the defendant employed more than 100 men in such mine, states a cause of action; and another paragraph alleging the same facts except that the plaintiff was elected and employed by the miners with the consent of defendant, and that defendant paid to such miners certain sums of money with which to pay the wages of the plaintiff, also states a cause of action, p. 142.</p> <p>6. Trial. — Peremptory Instructions. — Where there is some evidence tending to sustain the material allegations of plaintiff’s complaint, a peremptory instruction for defendant should be refused, p. 143.</p> <p>7. Master and Servant. — Coal Mines. — Shot Hirers. — Instructions. —In an action for damages by a shot firer in a coal mine, an instruction that if the miners elected to have plaintiff employed as a shot firer. and contributed to the payment of his wages, such payment being made through appellant, plaintiff was neither a trespasser, nor a mere licensee, in such mine, and that defendant would owe him the duty, while so engaged, to furnish him a reasonably safe place in which to work, is correct, p. 144.</p> <p>8. Master and Servant. — Coal Mines. — Rooms.—Mining Boss. — • —Instructions.—In an action for damages by a shot firer in a coal mine, an instruction that if the jury should find that it was the duty of the mine boss to direct and govern the form and location of the rooms and that it was his duty to make the partition walls fifteen feet thick and he negligently failed to do so, that at the place the shot was fired such wall was only five to seven feet thick, that this was the proximate cause of the injury, that the plaintiff was not guilty of contributory negligence and that the risk was not assumed, the verdict should be for the plaintiff, is a correct statement of the law. p. 144.</p> <p>9. Master and Servant. — Coal Mines. — Damages.—Issues.—Instructions Concerning. — In an action by a coal miner for damages for personal injuries, an instruction that the preponderance of the evidence must establish -the injury substantially as alleged, and that the injury was caused by the negligence of defendant, but that if the plaintiff was an experienced miner and knew as well as defendant of the danger, he cannot recover, furnishes to defendant no cause for complaint, p. 145.</p> <p>10. Master and Servant. — Coal Mines. — Shot Hirers. — Contributory negligence, — Assumption of Rislc. — Instructions.—In an action by a shot firer in a coal mine for damages caused by the alleged negligence of the operator of such mine in making the partition walls of the rooms too thin, thereby causing a shot to break through the wall to plaintiff’s injury, the elements of contributory negligence and assumption of risk enter, and an instruction thereon is proper, p. 145.</p> <p>11. Master and Servant. — Coal Mines. — Duties of Boss. — Evidence. — In an action for damages by a shot firer in a coal mine, evidence is competent showing why pillars of coal were left-standing between the rooms therein, what were the duties of the mine boss in respect to such pillars and as to the giving of notice to shot firers of a shot placed for the making of a “breakthrough,” and the proper location of the “break-throughs;” and such shot firer, as well as other miners, was a competent witness as to such facts, p. 145.</p> <p>12. Master and Servant. — Ooal Mines. — Blasting.—Evidence.— Jury.- — Evidence that a shot firer was hired by the miners in a coal mine with the operator’s knowledge and consent, that while in a room a shot was fired by a miner in an adjoining room, injuring plaintiff because the partition wall was too thin, that it was not the duty of the shot firer to ascertain the thickness of the wall and that he could not have known such thickness except by an examination, and that the miner who fired the shot did not know the thickness thereof, requires a submission to the jury of the questions of defendant’s negligence and plaintiff’s contributory negligence, p. 146.</p>

Prom Greene Circuit Court; Charles E. Henderson, Judge. Action by Lula Bennett, as administratrix of tb© estate of Emery G. Bennett, deceased, against the Evansville and Terre Haute Railway Company and another. Prom a judgment for defendants, plaintiff appeals. (For final decision, see — Ind. —.)

<p>1. Limitation of Actions. — Coal Mines. — Mortal Injury to Miner. —Accrual of Right of Action to Widow and Children. — Time of. —Under §8597 Burns 1908, Acts 1907 p. 253, providing that “for any injury to person or persons * * * occasioned by any violation of this [mining] act, * * * a right of action shall accrue to the party injured * * * and in case of loss of life, by reason of such violation, a right of action shall accrue; first, to the widow, if any”; and if none, then to other dependents, an action by a widow for the negligent killing of her husband in violation of the mining law, brought within two years after his death, is not barred by the statute of limitations, though he lived three years after he sustained the injury, but filed no action therefor, pp. 151,154.</p> <p>2. Statutes. — Construction.—In Pari Materia. — All statutes on the same subject-matter should be construed in pari materia; and where a statute is in derogation of the common law no exceptions not contained therein will be allowed, p. 152.</p> <p>3. Action. — Death.—Abatement and Revival.- — The act of 1907 (Acts 1907 p. 253, §8597 Burns 1908), amending the act of 1905 (Acts 1905 p. 05), providing that for the death of a husband, occasioned by the violation of any of the provisions of said act regulating coal mines, his widow, or children, shall have “a right of action,” creates a new and independent right of action in favor of such wife and children, p. 153.</p> <p>4. Abatement. — Action.—Death.—Damages.—At the common law an action for personal injuries abated with the death of the injured person, p. 153.</p>

<p>1. Mechanics’ Liens. — Contractors.—Subcontractors.—Prior to the taking effect of the act of 1909 (Acts 1909 p. 295) a mechanic’s lien could not he enforced on behalf of a contractor or subcontractor, p. 101.</p> <p>2. Courts. — Decisions.—Effect.—The decisions of the Supreme Court are binding upon the Appellate Court, p. 161.</p> <p>3. New Tkial. — Excessive Recovery. — Where the judgment rendered is too large, giving the plaintiff a larger amount than is warranted by the evidence, a motion for a new trial on that ground should be sustained, p. 161.</p>

<p>1. Trial. — Conclusions of Law. — Exceptions.—Time of Talcing-— Appeal. — Statutes.—Section 656 Burns 190S, §626 K. S. 1881, providing that “the party objecting to the decision must except at the time the decision is made,” is mandatory, and exceptions taken twenty-one days after conclusions are announced present no question on appeal, p. 163.</p> <p>2. Trial. — Conclusions of Law. — Amendments.—Exceptions.—The trial judge, at any time while the action is m fieri, may recall and amend the special findings and conclusions oí law, and the defeated party may at such time except to such conclusions, whether exceptions had originally been taken or not. p. 165.</p>

<p>1. Pleading. — Complaint.—Sufficiency.—Initial Attach on Appeal. ■ — A complaint attacked for the first time on appeal is sufficient if the facts alleged will bar another action for the same cause, p. ICS.</p> <p>2. Account.— Sales.— Complaint.— Sufficiency.— “Sold.” —A complaint on account alleging that the defendants are “indebted to plaintiff in the sum of $150, with interest thereon, for hay sold and delivered by plaintiff to said defendants,” and setting out an itemized statement thereof in a bill of particulars, sufficiently shows that a sale was made at the request of defendants, and that a contract was made therefor, the word “sold” importing a contract of sale of some article of value, made upon a valuable consideration, a price paid therefor, and the mutual consent of the parties, p. 168.</p> <p>3. Pleading. — Complaint.—Sufficiency.—A complaint stating the facts constituting the cause of action in plain and concise langauge and in such a manner as to enable a person of common understanding to know what is intended, is sufficient, p. 168.</p> <p>4. Appeal. — Considering Evidence. — The Appellate Court will not weigh conflicting evidence; and in determining whether there is evidence to sustain the judgment below, only that most favorable to appellee will be considered, p. 169.</p> <p>5. Sales. — Principal and Agent. — Evidence.—Evidence that the plaintiff engaged to deliver certain quantities of hay to a person in charge of a stable at the Indiana state fair grounds, such stable having a large sign over the door with defendant’s name thereon, showing that such company dealt in hay and grain, that, later, the general manager of such company drove to plaintiff’s house and doubled the order, that the plaintiff delivered the hay to men at such stable and that he had not been paid therefor, sustains a judgment for plaintiff against such company, whether the sale was made in the name of the company or not. p. 169.</p> <p>6. Appeal. — Briefs.—Points not argued will not be considered, p. 171.</p>

Prom Jasper Circuit Court; G. W. Hanley, Judge. Action by William P. G-affield against James T. Morton and another. Prom a judgment for plaintiff, defendant James T. Morton appeals. On motion to dismiss the appeal. (For final decision, see — Ind. App. —.)

<p>Prom Clark Circuit Court; Harry G. Montgomery, Judge.</p> <p>Action by Tbomas P. Crawford against Amelia "Wellinger and another. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Prom Dearborn Circuit Court; George E. Downey, Judge.</p> <p>Suit by the Greendale Land Company against Bertha Snyder and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>1. Insurance.— Policies. — - Voidable.— Election.-— Rescission.— Return of Consideration. — The so-called void clauses of an insurance policy render such policy voidable, in case of a breach thereof, at the election of the insurer; and in order to rescind such contract the insurer must return the benefits received, p. 187.</p> <p>2. Courts. — Supreme.—Appellate.—The Appellate Court is bound by the rules of law announced by the Supreme Court, p. 188.</p>

<p>Prom Probate Court of Marion County (9,413); Frank B. Boss, Judge.</p> <p>Action by Nancy C. Gardner against Fred W. Eppert, as executor of the last will of Francis M. Eppert, deceased. From a judgment for plaintiff, defendant appeals.</p>

<p>From Fountain Circuit Court; 1. E. Schoonover, Judge.</p> <p>Suit by the Brownell Improvement Company and another against Mary P. Nixon and others. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>Prom Fountain Circuit Court; I. E. Schoonover, Judge. Suit by Mary A. Rhodes against John H. Lucas. From a decree for plaintiff, defendant appeals.</p>

<p>1. Insurance.— Mutual Benefit. — Beneficiaries.— Complaint.— A complaint by tbe party named as the beneficiary in- the certificate of a mutual benefit society, against such society and a contesting beneficiary claiming under a different benefit certificate, is not bad as to such contesting beneficiary, though it would be as to the society, for failing to allege that the plaintiff and the assured had done all things required of them to be performed, or the facts showing that they had performed such conditions, p. 229.</p> <p>2. Insurance.— Mutual Benefit.— Beneficiaries.— Volunteers.— A mere volunteer beneficiary of a mutual benefit certificate on the life of another, acquires no vested right therein until the death of the assured, p. 232.</p> <p>3. Insurance. — Mutual Benefit. — Beneficiaries.—Equitable Bights of. — Where a daughter agreed with her father to pay his assessments in a benefit society in consideration of his making her the beneficiary of his certificate therein, and she performed her agreement, he cannot, without her consent, substitute another as the beneficiary thereof. B unyan v. Reed, 34 Ind. App. 295, distinguished. p. 232.</p>

<p>1. Torts. — Use of Property. — Damages.—The owner of property has a right to use it in a reasonable manner, and if in the use thereof incidental injury is done to another, no recompense can be demanded therefor, p. 241.</p> <p>2. Nuisance. — Trespass.—Overfloicing Mineral Waters. — Damages. —The operator of a gas well or oil well, who suffers salt water therefrom to overflow his neighbor’s land, destroying its fertility and the vegetation thereon, is liable therefor, p. 241.</p> <p>3. Waters. — Surface.—Artificial Plo-wage. — Damages.—*The owner of land over which surface-waters naturally flow has no cause of action therefor, but he has a cause of action where the overflowing waters have been artificially collected and discharged upon such land, p.242.</p> <p>4. Waters. — Streams.—Pollution.-—Cities.—While lower riparian owners have been held remediless in eases where streams have been polluted by upper proprietors, or cities, the conservation of the public health requires that such holdings should be largely restricted; and cities have no right to east polluted water on the surface so that it will flow upon a servient owner’s land. p. 242.</p> <p>5. Nuisance. — Contributory Negligence. — Contributory negligence constitutes no defense to an action for maintaining a nuisance, p. 244.</p> <p>6. Nuisance. — Negligence.—Discharging Collected Watei's. — Complaint. — A complaint alleging that defendant in operating its oil and gas well discharged saline waters upon plaintiff’s land, thereby destroying its fertility and vegetation, states a cause of action regardless of any allegations of negligence therein contained. p. 245.</p> <p>7. Venue. — Change of. — Effect.—The court to which a cause of action has been transferred by a change of venue has sole jurisdiction thereof and should proceed with the ease as though such ease had originated in such court, p. 245.</p> <p>8. Parties. — Additional, on Change of Venue. — A plaintiff, after a change of venue from the county has been granted, may amend his complaint by adding new parties, though such parties live in the county from which the case was taken, p. 246.</p> <p>9. Nuisance. — Continuance of. — Damages.—A nuisance constitutes a continuing offense and gives rise to damages in plaintiff’s favor as long as it continues, p. 246.</p> <p>10. Nuisance. — Damages.—For What Time Assessed. — Supplemental Complaint. — Ordinarily damages can be awarded only to the time of the commencement of an action, but in an action for nuisance a supplemental complaint may be filed for damages accruing after the filing of the complaint, and in that way damages ma3f be recovered up to the time of the trial, p. 247.</p> <p>11. Pleading. — Complaint.—Supplemental.—The original and the supplemental complaint constitute the complaint in a cause, the supplemental complaint merely bringing forward the matters accruing after the filing of the original complaint, p. 247.</p>

<p>1. Nesiioence. — Contributory.—Negativing Complaint. — It is not necessary, in a complaint for personal injuries, to negative contributory negligence, p. 250.</p> <p>2. Carriers. — Passengers.—Sudden Start of Cars. — Complaint.— Inferences. — Where a complaint shows the relation of passenger and carrier between plaintiff and defendant, the duties of the carrier need not be set out, since the law fixes them; and an allegation that the defendant violently started its car, thereby throwing the plaintiff therefrom, sufficiently states a cause of action, pp. 250, 252.</p> <p>8. Carriers. — Passengers.—Sudden Start of Car. — Contributory Negligence. — Complaint.—A complaint showing that the plaintiff was guilty of contributory negligence is bad on demurrer; but a complaint alleging that the plaintiff arose, preparatory to alighting from the car, and that the car started with a violent jerk, thereby throwing her therefrom, does not show contributory negligence. p. 252.</p> <p>4. Carriers. — Passengers.—Standing in Car. — Where a passenger is known to be standing in a car, regardless of the reason therefor, it is the duty of the persons in charge of the ear to operate it in such a manner as not to throw such passenger therefrom, p. 252.</p> <p>5. Carriers. — Passengers.—Standing in Cur. — Contributory Negligence. — It does not constitute contributory negligence, as a matter of law, for a passenger to stand on a moving car. p. 252.</p> <p>6. Carriers. — Care Toward Passengers. — While it is not the customary duty of a motorman to look after the passengers on his car, it is his duty to exercise the highest practicable degree of care in the operation of his car; and this may require him to see whether passengers are in a position of safety, pp. 252,258.</p> <p>7. Damages. — Excessive.—Interurban Railroads. — Where a verdict is not so large as to indicate that the jury acted from prejudice, partiality or corruption, it will not be disturbed on appeal, p. 253.</p> <p>8. Appeal. — Briefs.—Waiver.—Points not argued are waived, p. 253.</p> <p>9. Cabriebs. — Stations.-—-Passengers.—Complaint.—A complaint by a passenger of an interurban railway company, alleging that she arose in the car preparatory to alighting, that a signal to stop had been given, that the motorman negligently gave the ear a sudden jerk, thereby throwing plaintiff from the car, but failing to allege that the place where she was attempting to alight was at a usual stopping place, is sufficient, p. 253.</p> <p>10. Carriers. — Passengers.—Sudden Start of Car. — Signal by Stranger. — Proximate Cause. — Jury.—In an action by a passenger against an interurban railway company for negligently and suddenly starting the ear with a jerk, thereby throwing her therefrom, the alleged fact that a stranger gave the signal for the motorman to proceed, is not conclusive that the proximate cause of the injury received was the giving of such signal and not the alleged negligence in starting the ear with a jerk, the question being for the jury; and an instruction that on proof of such alleged fact the plaintiff could not recover, was correctly refused, pp. 255,259,260.</p> <p>11. Negligence. — Evidence.—Inferences.-—Appeal.—In a negligence case, evidence of facts from which an inference of defendant’s negligence arises, is sufficient to sustain a verdict, on appeal, p. 259.</p> <p>12. Trial. — Verdict.—Inferences.—Appeal.—On appeal, all reasonable inferences are drawn in favor of the general verdict, p. 260.</p> <p>13. Trial. — Verdict.—Interrogatories.—Conflict.—The general verdict controls the answers to the interrogatories to the jury unless they are in irreconcilable conflict therewith, p. 261.</p>

<p>1. Trial. — Verdict.—Interrogatories.—Conflict.—Answers to the interrogatories to the jury control the general verdict only when they are in irreconcilable conflict therewith under any supposable evidence admissible within the issues, p. 266.</p> <p>2. Railroads. — Crossing Accidents. — Violating Ordinances. — BacJcing Engine toithout Light or Lookout. — Interrogatories.—Answers to interrogatories to the jury that the plaintiff looked and listened for an approaching train before going upon the defendant’s railroad track on a street crossing, that he neither saw nor heard any, that he was prevented therefrom by the noise of another train, and the dark and rainy night, and that because of an embankment and curve he could not see the approaching engine before he reached the point where he was struck, are not in conflict with a general verdict for the plaintiff, p. 266.</p> <p>3. Railroads. — Crossing Accidents. — Instructions.—In an action t>y a pedestrian against a railroad company for damages sustained at a street crossing, an instruction that the plaintiff, to recover, must establish by a preponderance of the evidence (1) that he received the injuries as alleged in the complaint, and (2) that such injuries were the immediate and proximate result of defendant’s carelessness and negligence, as alleged in the complaint, and that if the plaintiff so failed to establish either, he could not recover, is correct, and where followed by an instruction as to the effect of contributory negligence, is not prejudicial, p. 267.</p> <p>4. Trial. — Instructions.—Row Considered. — Instructions should be considered as a whole; and if they fairly present the law of the case they will not be held prejudicial, p. 268.</p> <p>5. Railroads. — Crossing Accidents. — Ordinances.—Instructions.— In an action for damages sustained at a street crossing because of defendant railroad company’s violation of a city ordinance, an instruction that the plaintiff, in the absence of knowledge to the contrary, had a right to assume that defendant would obey the city ordinance in reference to the moving of its trains, is correct. p. 268.</p> <p>6. Railroads.— Crossing Accidents.— Ordinances.— Lookout on “Rear End of Locomotive.” — Instructions.—In an action against a railroad company for injuries at a street crossing caused by defendant railroad company’s running backwards a locomotive and tender without a lookout on the rear of the tender, in violation of a city ordinance requiring all companies so operating trains to provide a watchman on the “rear end of such locomotive, car, or train of cars,” an instruction that it was the defendant’s duty when it ran an engine and tender backwards to station a watchman on the rear of the tender, is not objectionable, p. 268.</p> <p>7. Railroads. — Grossing Accidents. — Contributory Negligence. — ■ Presumptions. — In an action for damages sustained at a street crossing, because of defendant railroad company’s violation of a city ordinance, an instruction that the presumption is that when a person approaches a railroad crossing along a street or highway, and is injured in attemiiting to cross, ho is not guilty of contributory negligence, is incorrect, there being no presumption in such case. Nichols v. Baltimore, etc., R. Co., 33 Ind. App. 229, Pittsburgh, etc., R. Co. v. Reed, 36 Ind. App. 67, Cleveland, etc., R. Co. v. Schneider, 40 Ind. App. 38, and Wamsley v. Cleveland, etc., R. Co., 41 Ind. App. 147, partly overruled, pp. 209,270.</p> <p>8. Negligence. — Contributory.—Burden of Proof. — Contributory negligence constitutes a defense; and the burden is on defendant to prove such defense by a preponderance of the evidence, p. 269.</p> <p>9. Railroads. — Crossing Accidents. — Contributory Negligence.— Instructions. — Curing by Interrogatories. — In an action for injuries sustained by a traveler at a street crossing, answers to the interrogatories to the jury that the plaintiff was not guilty of contributory negligence do not cure an erroneous instruction that the plaintiff is presumed to be free from contributory negligence, such answers probably being influenced by such erroneous instruction, pp. 270, 271.</p>

<p>1. Master and Servant. — Removing Slag — Explosions.—Failure to Warn. — Proximate Cause. — Complaint.—A complaint alleging that defendant operated a foundry, that the plaintiff was employed to remove slag, that he knew nothing of the dangers of an explosion thereof by the contact of water therewith, that defendant knew thereof but failed to warn him, that defendant negligently left pools of water near such slag, and that the plaintiff, while performing his work, stepped therein, splashing water upon the slag and causing an explosion, to his injury, sufficiently shows defendant was negligent, that its negligence was the proximate cause of the injury, and that the accident was one that the defendant should have anticipated, pp. 275, 278.</p> <p>2. Master and Servant. — Latent Dangers. — Duty to Warn. — It is the master’s duty to warn servants of the latent dangers of their service, pp. 276,277.</p> <p>3. Negligence.- — Proximate Cause. — The proximate cause of an injury is the decisive cause; and it may consist in omission as well as commission, p. 277.</p> <p>4. Pleading. — Complaint.—Construction.—A complaint should be liberally construed with a view of giving substantial justice to the parties, p. 277.</p> <p>5. Trial. — Interrogatories.— Contradictory Ansioers.— Conflicting answers to interrogatories to tbe jury nullify one another, p. 279.</p> <p>6. Appeal. — Instructions.—Bills of Exceptions. — Instructions maj> be brought into the record by a special bill of exceptions, p. 279.</p> <p>7. Master and Servant. — Latent Dangers. — Failure to Warn. — Instructions. — An instruction that it is the duty of a master to warn his servant who is ignorant of a danger, known to the master, is not misleading on the ground that it required the master to warn the servant against obvious dangers, where the complaint and the evidence showed that the servant was injured by splashing water upon hot slag, thereby causing an explosion, p. 279.</p> <p>8. Master and Servant. — Latent Dangers. — Duty to Warn. — Instructions. — In an action by a servant against defendant iron company for negligence in failing to warn him of the dangers of the contact of water with hot slag, an instruction that the duty of the master to instruct an ignorant servant of latent dangers is commensurate with the danger to be apprehended, is not prejudicial, p. 280.</p> <p>9. Master and Servant. — Latent Dangers. — Implied notice. — Instructions. — “Must.”—“May.”—In an action by a servant against defendant iron company for failing to inform him of the latent danger of the contact of water with hot slag, the refusal of an instruction, that if the jury should find that the plaintiff worked in close proximity to such slag prior to his injury and that it was common knowledge among the employes that the contact of water with hot slag would cause an explosion, the jury must consider such evidence on the question of such servant’s notice of such danger, is not erroneous, since said instruction confines the jury to the bare facts stated therein. Roby, J., concurs. p. 280.</p> <p>10. Trial. — Instructions.—Duplication.—It is not erroneous to refuse to duplicate instructions, p. 282.</p>

<p>1. Insurance. — Loans on Policy. — Forfeitures.—In an insurance policy upon which the assured and his beneficiary had borrowed money from the company, pledging the policy as a security therefor, a provision that “if any premium on said policy or any interest on said loan is not paid on the date when due, * * * such pledge shall, without demand or notice of any kind, * * * be foreclosed by said company, by deducting the amount due on said loan from the reserve on said policy,” is not invalid on the ground that the legal requirements for a foreclosure are not granted thereby, p. 293.</p> <p>2. Insurance.' — Lex Loci Contractus. — Loans.—Place of. — Sushand and Wife. — Suretyship.—An. insurance policy issued by a New York company, and providing that the “contract contained in such policy and * * * application shall be construed according to the law of the State of New York, the place of said contract being agreed to be the home office of the company,” and providing further that “the amount loaned [on the policy] at any time shall be such as the insured may desire,” and that the “policy shall be duly assigned to the company as collateral security for the loan,” and a loan agreement executed by the insured and his wife who was the beneficiary in the policy, providing that such agreement was “made under and pursuant to the laws of the State of New York, the place of said contract being said home office of said company,” are governed by the laws of New York, and the wife’s rights as beneficiary, are subject to the rights and actions of the assured under the provisions of the policy, pp. 295,297.</p> <p>3. Insurance. — Married Women. — Rights of. — New Torio Statute. —The New York statute providing that “a married woman may, in her own name, cause the life of her husband to be insured for a definite time,” and that when she survives such time she is entitled to receive the insurance money as her separate property “free from any claim of a creditor * * * of her husband,” and that “a policy of insurance on the life of any person for the benefit of a married woman is also assignable * * * and may be surrendered * * * by her * * * with the written consent of the assured,” applies to insurance taken by a wife upon theelife of her husband, and not to a policy taken by the husband in which the wife is named as beneficiary; and the wife is authorized to assign, with her husband’s written consent, a policy so taken by her. p. 296.</p> <p>4. Insurance. — Beneficiary.—Bight to Change. — Effect.—The beneficiary of an insurance policy does not have a vested right therein, where the assured is authorized to change beneficiaries, p. 296.</p> <p>5. Insurance. — Options.■—Bight to Exercise. — The husband has the right to exercise the options provided in an insurance policy taken out by him, where his wife is named as beneficiary, and where he has the reserved right of changing beneficiaries at any time. p. 296.</p> <p>6. Insurance. — Contracts. — Suretyship.—Married Women. — Statutes. — The Indiana statute (§7855 Burns 1908, §5119 R. S. 1881) declaring void all contracts of suretyship executed by married women, does not apply to a loan obtained by a husband and his wife on an insurance policy, where the provisions for the loan in question were contained in the policy in which such wife’s rights were acquired, p. 297.</p> <p>7. Insurance. — Loans. — Forfeiture. — Waiver.— Prejudice.— An agreement by an insurance company to be lenient with a borrower and not to enforce a forfeiture, the written contract for the loan providing for a forfeiture, though probably unenforceable, must be shown to have been violated to the beneficiary’s prejudice, before the beneficiary can found a claim thereon, p. 298.</p> <p>8. Insurance. — Extended.—Conditions Precedent. — Failure to Perform. — An action for extended insurance cannot be maintained, where the policy provided that the payment of any loan to the assured should be a condition precedent to the automatic extension of such insurance and where the assured had failed to pay his loan. p. 299.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Chester Fairchild against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Rush Circuit Court; L. L. Broaddus, Special Judge.</p> <p>Suit by Alfred Kendall and Bessie E. Norris against Marcus A. Kendall. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>1. Pleading. — Demurrer.—Defect of Parties. — A demurrer for defect of parties must set out the names of the proper parties, p. 313.</p> <p>2. Pleading. — Demurrer.—Want of Pacts. — Defective Parties. — A demurrer for want of facts does not raise the question of a defect of parties, p. 313.</p> <p>S. Corporations. — Wrongful Transfer of Stoclc. — Remedies.—The owner of stock wrongfully transferred upon the books of a corporation may elect to sue in equity or at law. p. 314.</p> <p>4. Corporations. — Stoclc. — Wrongful Transfers. — Townships. — Railroads. — A township whose stock in a railroad company was unlawfully sold and transferred, and reissued by the company may, in an equitable proceeding, compel such company to cancel such stock and reissue the stock to such township, pp. 314,316.</p> <p>5. Specific Performance. — Contracts Relating to Personal Property. — Value.—Specific performance lies to enforce contracts relating to personal property only when such property has a peculiar value, p. 316.</p> <p>6. Corporations. — Wrongful Transfer of Stoclc. — Reissuing.—Complaint. — A complaint by a township to compel a railroad company to cancel stock issued to one to whom the township trustee had unlawfully assigned it, and to compel the company to reissue the stock to the township, does not need to contain a prayer for alternative relief in damages in case the court should refuse to order the stock canceled and reissued, p. 318.</p> <p>7. Corporations. — Wrongful Transfer of Stoclc. — Reissuing.—Coup-plaint. — Value.—A complaint to compel a corporation to cancel stock unlawfully held by another and to compel the reissuance of such stock to the owner, alleging the par value thereof, but failing to allege the real value, is sufficient, the prima facie presumption being that the par value constitutes the real value, p. 318.</p>

Prom Miami Circuit Court; Joseph N. Tillett, Judge. Action by William P. Lenhart and another against the Peru Heating Company and another. Prom a judgment for plaintiffs, said company appeals.

<p>1. Bills and Notes. — Discharge.—Agency.—How Alleged. — In a suit on notes and to foreclose a mortgage securing them, an answer that “the duly authorized agent of said plaintiff came to the defendants, and * * * agreed and contracted to take the machinery set out in the plaintiff’s mortgage and his complaint herein, in full payment * * * of the debt herein sued on, and * * * that in compliance with said contract said defendants surrendered” such property to such agent, is insufficient, since it fails to show that such agent was authorized to make such a settlement, p. 340.</p> <p>2. Bills and Notes. — Discharge.—Agency.—Ratification.—Allegations of. — In a suit on notes and to foreclose a mortgage securing them, an answer alleging that plaintiff’s duly authorized agent agreed to accept the property, for which the notes were given, in discharge thereof, and that the property was surrendered to and accepted by him, the answer further alleging that “the plaintiff has been in full and complete possession and control of said property ever since it was * * * surrendered as above set out,” is bad on the theory of ratification, since it fails to show that the ifiaintiff knew of the conditions of such surrender and possession, the mortgage giving to plaintiff the right of possession in case of a default in payment, p. 342.</p> <p>3. Pleading.— Answer.— Theory.— A paragraph of answer must proceed upon some definite theory apparent from the general scope and character thereof; and upon such theory it must stand or fall. p. 344.</p>

<p>From Saint Joseph Superior Court; Vernon W. VanFleet, Judge.</p> <p>Action by the Schmidt Cut Stone Company against Samuel S. Perley and others. From a judgment for plaintiff, defendant Samuel S. Perley appeals.</p>

<p>1. Appeal. — Briefs.—¿Waiver.—Dismissal.—Where appellant’s brief fails to show how the issues iu a case were decided, what the judgment was, what were the alleged errors, and separately-numbered points, and authorities to support them, no question is presented; and the appeal should be dismissed, pp. 349, 350.</p> <p>2. Appeal. — Briefs.-—-Requisites.—Briefs should be so prepared that all questions presented by the assignments of errors can be determined without examining the record, p. 350.</p> <p>3. Appeal. — Rules.—Courts.—The rules of the courts on appeal should be uniformly enforced, p. 350.</p>

Prom Probate Court of Marion County (8,956); Frank B. Ross, Judge. Action by Benjamin E. Hinshaw, as administrator de bonis non, with the will annexed, of the estate of Eliza J. Gray, deceased, against the Security Trust Company, as executor of the last will of Pierre Gray, deceased. Prom a judgment for the defendant, plaintiff appeals.

<p>1. Compromise. — Contracts of. — Contradicting.—Oral Evidence — The execution of a receipt in settlement of a negligence case, in form: “I, [plaintiff], in full accord and satisfaction of such disputed claim do hereby acknowledge the receipt of the sum of $350 to me in hand paid by [defendant] * * * from any and all actions, causes of action, claims and demands, for, upon, or by reason of, any damage, loss, injury, or suffering which hereafter may be sustained by me * * * in consequence of such accident and injury,” does not preclude the plaintiff from proving by oral evidence that an agreement to give him work was also a partial consideration for such release, the consideration stated being a recital, pp. 360, 371.</p> <p>2. Appeal. — Weighing Evidence. — Verdict.—Where the evidence as to the facts is conflicting, the verdict is conclusive on appeal, p. 362.</p> <p>3. Contracts. — Avoidance.—Election.—Where a person has an option to avoid a contract, his election to avoid must embrace the entire contract, and he cannot avoid the objectionable parts and affirm the favorable ones. p. 362.</p> <p>4. Contracts. — Ratification.—Disaffirmance.—A person cannot ratify a contract and afterwards disaffirm it. p. 362.</p> <p>5. Principal and Agent. — Ratification.—Authority.—Whether the general superintendent of a manufacturing company and the agent of a liability company were authorized to settle with an injured servant by paying him a certain sum and by agreeing to give him employment is immaterial, where the manufacturing company is pleading the payment of such sum as a complete discharge of the liability, p. 362.</p> <p>6. Election. — Inconsistent Positions. — Where a person has a right of election between inconsistent positions, he will be restricted to that first chosen, p. 363.</p> <p>7. Compromise. — Election.—Discharge.—Estoppel.—Where a defendant pleads in discharge of a liability a purported complete release which is asserted by the plaintiff to be only a partial release, the defendant is-thereby estopped to question the release as it was actually made. Eabb, J., dissents, p. 363.</p> <p>8. Contracts.— Discharge.— Action.— Answer.— Reply.— Corporations.' — In an action upon a contract presumably executed by a corporation in discharge of an alleged liability, such corporation may answer a want of authority on the part of the alleged agent who executed the contract, and, in such event, the plaintiff, if he succeeds, is required to reply the facts showing such agent’s authority, p. 371.</p>

<p>1. Tkusts. — Empress. — Creation of, by Parol. — Executed.—The rule that an express trust in land cannot be created by parol has no application where the alleged express trust has already been executed, p. 376.</p> <p>2. Fraudulent Conveyances. — Consideration.—Marriage.—Creditors. — Answers.—Partial.—In a suit by a creditor to set aside an alleged fraudulent conveyance made by defendant husband to his wife, an answer in bar of the cause of action that the fee of srich land was conveyed to the wife, subject to a life estate in the husband, in consideration of marriage and that such marriage had been accordingly consummated, is bad, because, at the time of such conveyance the husband owned a life estate in such land, such interest being subject to the demands of creditors, p. 376.</p> <p>3. Fraudulent Conveyances. — Intent.—Equitable Rights. — Notice of Creditor's Claim. — Evidence.—Evidence that the defendant wife before marriage entered into a contract with the defendant husband whereby she should receive his property in consideration of her marriage to him and of caring for him during his sickness, such wife having no knowledge of any claims against him, sustains a judgment for her in a suit to set aside the conveyance so made to her, though at the time the conveyance was actually made she knew of the plaintiff’s claim, and though she testified that the conveyance was made to prevent the plaintiff from obtaining the property, p. 376.</p> <p>4. Witnesses. — Competency.—Default Judgment. — Hxis’band and Wife. — Fraudulent Conveyances. — In a suit to set aside an alleged fraudulent conveyance made by a husband to his wife, such husband and the trustee through whom the transfer was made are competent witnesses in behalf of such wife, though a default judgment was taken against such husband, p. 378.</p> <p>5. Appeal. — Defective Ansioer. — Harmless Error. — The overruling of a demurrer to a defective paragraph of answer does not constitute harmful error, where the special findings show that the case was correctly decided on the merits, p.378.</p>

<p>From Gibson Circuit Court; Rerdis Clements, Judge.</p> <p>Suit by Elmer G. Devin against John R. McCoy, as trustee of Elmer G. Devin and others. From a judgment for defendant, plaintiff appeals.</p>

<p>From Johnson Circuit Court; J. E. McCullough, Special Judge.</p> <p>Suit by John C. Dunn against Ora "W. Means. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading.— Complaints.— Demurrers.— Additional Paragraphs. —Appeal.—On appeal, an “additional paragraph,” alleging the same cause of action, filed after the sustaining of demurrers to all previous complaints and paragraphs, and after taking leave to amend, will be considered as an amended complaint, and as a waiver of all previous exceptions, p. 394.</p> <p>2. Pleading. — Complaint.—Repetitions.—A complaint alleging the facts constituting the cause of action in such a manner as to enable a person of common understanding to know what is intended, is sufficient as against a demurrer, though it contains many vain repetitions, p. 395.</p> <p>3. Pleading. — Complaint.—Sufficiency.—A complaint that entitles the plaintiff to any part of the relief prayed for is sufficient on demurrer, p. 396.</p> <p>4. Reformation. — Deeds.—Mistake.—Fraud.—Equity will reform a deed whenever through a mutual mistake, or a mistake of one of the parties accompanied by the fraud of the other, it does not express the agreement of the parties, p. 398.</p> <p>5. Trusts. — Express.— Resulting.— Fraud.— Deeds.— Section 4019 Burns 1908, §2976 R. S. 1881, providing,.among other things, that §4017 Burns 1908, §2974 R. S. 1881, which provides that “when a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter,” “shall not extend to cases * * * where * * * by agreement and without any fraudulent intent, the party to whom the conveyance was made * * * was to hold the land * * * in trust for the party paying the purchase money,” does not apply to a suit to reform a deed so as to create a trust in favor of plaintiffs, for the reason that such a trust is express, the statute applying only to resulting trusts, p. 398.</p> <p>6. Befobmation. — Contracts.—Consideration.—Deeds.—Complaint. —A complaint to reform a deed must allege a valuable consideration for the antecedent contract, a mere volunteer being unable to maintain such suit. p. 398.</p> <p>7. Befobmation. — Deeds.—Consideration of Antecedent Contract. —Trust.—Construction of. — In a suit for the reformation of a deed the court will perhaps not consider the deed as reformed in order to ascertain if a valuable consideration has been yielded; but the court, in determining whether a valid and enforceable trust is created, will look to the deed as reformed, p. 399.</p> <p>8. Befobmation. — Deeds.-—Trusts.—-Consideration.—Family Settlements. — Complaint.—A complaint to reform a deed so as to show a trust therein in favor of plaintiffs, alleging a consideration of $2,000, love and affection, and a family settlement, for the making of such deed, states a sufficient consideration, p. 400.</p> <p>9. Befobmation. — L-adlies.—Notice.—Complaint.—A complaint by the beneficiaries of an alleged trust, alleging that their father in executing a deed to their sister omitted by a mutual mistake of himself, such sister and the scrivener, to create such trust, that the father had the deed recorded at once, but did not, during his lifetime, learn of such omission, and that it was not until a short time after the father’s death that such beneficiaries learned of it, sufficiently shows diligence, the rights of no third persons having intervened, p. 401.</p> <p>10. Befobmation. — Deeds.—Statute of Frauds. — A suit to reform a deed is not an action to enforce a parol agreement for the sale of land, and is not affected by the statute of frauds, p. 402.</p>

<p>1. New Thial. — Statutory.—When Demandable. — Bow Determined. —Whether a new trial as a matter of right is demandable in a given case is determined by a consideration of the issues therein prosecuted to final judgment, p. 404.</p> <p>2. Easements. — Bights of Way. — Implied Brants of. — Complaint. —A complaint alleging that plaintiff’s joint grantors conveyed to him a tract of land having no outlet except over their retained land, and that subsequently they conveyed such retained land to defendants, shows that the plaintiff’s deed carried with it an implied grant of a way as of necessity over defendants’ land. p. 404.</p> <p>3. ' Easements. — Servient Estates. — Subsequent Grantees. — Subsequent grantees of land burdened with an easement take such land subject thereto, p. 405.</p> <p>4. Easements. — Character of Estate. — Extinguishment.—A right of way over land constitutes an interest therein; and such interest, whether acquired by adverse use, or by express or implied grant, can be extinguished only in a mode recognized by law. p. 405.</p> <p>5. New Tbiai. — Statutory.—Easements.—In a suit to confirm a right of way as of necessity a new trial as a matter of right is demandable. p. 406.</p>

<p>From Huntington Circuit Court; Samuel TS. Gooh, Judge.</p> <p>Action by Alvin R. Kiracofe against the Chicago and Erie Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Superior Court of Marion County (75,481); Vinson Carter, Judge.</p> <p>Action by the Meyer Brothers Coffee and Spice Company against Harry H. Pauley. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Pike Circuit Court; E. A. Ely, Judge.</p> <p>Aetion by Ella Coulson against William P. Dearing, as executor of the last will of Amanda Tlelsley, deceased. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Prom Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Suit by the Perpetual Building, Loan and Savings Association against Bert E. Stiller and another. Prom a judgment for defendants, plaintiff appeals.</p>

From Superior Court of Marion County (74,345); James M. Leathers, Judge. Action by Abbie J. Thomas, as administratrix of the estate of W. Scott Thomas, deceased, against Frank Ittenbach and another. From a judgment on a verdict for plaintiff for $1,000, defendant appeals.

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed are waived, p. 440.</p> <p>2. Partition. — Quieting Title. — Complaint.—Cross-Complaint.—A suit to quiet title to alleged interests in certain lands and for partition necessarily assails defendant’s claim of title to the whole thereof; and she may assert her title in a cross-complaint and have all matters of title litigated in the one suit. p. 440.</p> <p>3. Quieting Title. — Mistake in Former Decree. — Cross-Complaint. —A cross-complaint setting out that defendant’s mother had obtained an order setting over to her the real estate in question as the widow of the owner, his estate being appraised at less than $500, that the land had been erroneously described in such decree, that defendant’s mother had been in possession thereof at all times and that she had conveyed it to the defendant by a correct description, and that defendant owns it, is sufficient on demurrer, the plaintiffs’ complaint asserting ownership of certain interests in such land. p. 441.</p> <p>4. Judgment. — Errors.—Correcting.—Evidence.—A decree erroneously describing real estate can be corrected in a proper proceeding; and other evidence besides the decree is admissible, p. 441.</p> <p>5. Appeal. — Bight Besult. — Where the trial court reached a right result on the merits, its decision will not be disturbed, p. 441.</p>

<p>1. Drains. — Void Order Establishing. — Injunction. — Estoppel.— Jurisdiction. — One who obtains a decree enjoining the construction of a drain established under an order alleged to be void for want of jurisdiction, is estopped to assert in another suit that the hoard had jurisdiction in making such void order and that therefore the board’s jurisdiction was lost in such proceeding, p.444.</p> <p>2. Drains. — Void Orders. — Jurisdiction.—An order for the construction of a drain, made at a void special session, does not affect the board’s jurisdiction to proceed with the drainage case at a later regular session, pp. 445,446,447.</p> <p>8. Drains. — Erroneous Judgment. — Remedy.—Appeal.—The remedy for an erroneous order made by the board of commissioners in a drainage ease is by appeal, p. 445.</p> <p>4. Judgment. — Void.—A void judgment is a nullity, p. 440.</p> <p>5. Judgment. — Final.—Subsequent Change. — Boards of Commissioners.- — Boards of commissioners have no power to change final orders made in eases over which they have jurisdiction, and where such orders are made when they are in lawful session, p. 447.</p> <p>6. Drains. — Injunction.—Parties.—Where a drain has been established and a commissioner appointed to construct it, a suit to restrain the construction thereof must be against such commissioner, and not against the petitioners, p. 447.</p>

<p>From Benton Circuit Court; J. T. Saunderson, Judge.</p> <p>Suit by Simon J. Straus and others against Edwin S. Yeager. From a judgment for defendant, plaintiffs appeal.</p>

<p>From Lake Superior Court, Virgil 8. Reiter, Judge.</p> <p>Action by James T. Clark against Wall Kee. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by John E. Lewis and others against Larkin W. Crouch and others. Prom a judgment for plaintiffs, defendants appeal.</p>

From Switzerland Circuit Court; Hiram Francisco, Judge. Suit by Hosier J. Harris, as guardian of John D. Mottier, a person of unsound mind (Eddie Mottier, as administrator of bis estate, being substituted as appellee, upon such ward’s death), against Lilly Humphrey and another. From a decree for plaintiff, defendants appeal.

<p>Prom Superior Court of Mariou County (75,062); Lawson M. Harvey, Special Judge.</p> <p>Action by Jay G-. Yoss against the Capital City Brewing Company. Prom a judgment for defendant, plaintiff appeals.</p>

From Pike Circuit Court; John L. Brets, Judge. Action by John W. Frame and another against William C. Vawter, as administrator with the will annexed of the estate of Matilda Frame, deceased. From a judgment for plaintiffs, defendant appeals.

<p>1. Municipal Coepoeations. — Street Improvement Assessments.— Wawer. — Personal Liability. — A waiver executed, by a frontager cuts off his right to make a defense to a street improvement assessment for anything appearing or omitted in the assessment proceedings, and makes him personally responsible for the deficit of cost and interest existing after the sale of the assessed lot on foreclosure of the lien. p. 490.</p> <p>2. Municipal Coepoeations. — Street Improvement Assessments.— Foreclosure. — Oomplai/nt.—Conditions Precedent. — Abatement.— A complaint to foreclose a street improvement lien that fails to allege the giving of the requisite notice to defendant to pay the amount due, is bad both as to the enforcement of the lien and as to the securing of a personal judgment, p. 490.</p> <p>3. Municipal Corporations. — Street Improvement Assessments.— Statutes. — Contracts.—Street improvement liens are statutory; and the remedy for enforcing them may be altered by the legislature at any time before contract rights intervene, p. 400.</p> <p>4. Municipal Corporations. — Street Improvement Assessments.— Liens. — Foreclosure.—■Notice.—Abatement.—Under §8721 Burns 1908, Acts 1907 p. 550, §3, providing that no person who has filed a waiver in a street improvement proceeding shall be sued unless “served with fifteen days’ personal written notice of such delinquency,” a suit filed without the giving of such notice may be abated, p. 491.</p> <p>5. Appeal. — -Mandate.—Death.—Where a party dies after the submission of a case on appeal, the judgment rendered will be entered as of the date of submission, p. 491.</p>

<p>1. Municipal Cobpobations. — Street Assessments. — Statutes. — Amendments. — Saving Glauses. — Section four of the act of 1909 (Acts 1909 p. 412) providing that any aggrieved lot owner may appeal to the circuit court from his assessment, repeals that part of §8716 Bums 1908, Acts 1905 p. 219, §111, providing for the appointment by the court of appraisers to reassess the benefits; and as there is no saving clause to such act of 1909, the court is powerless to proceed under such §8716 with a petition theretofore filed in accordance therewith, p. 493.</p> <p>2. Municipal Cobporations. — Street Assessments. — Petition to Appoint Appraisers. — Appeal.—The rights and remedies in street improvement proceedings are entirely statutory; and a petition, under §871G Burns 1908, Acts 1905 p. 219, §111, for the court to appoint appraisers to reassess the benefits to petitioner’s lot, does not constitute an appeal to the circuit court; and the. court is without jurisdiction to hear judicially any matter connected with such assessment, p. 494.</p> <p>3. Municipal Cobpobations. — Street Assessments. — Conclusiveness of. — Appeal.—No appeal lies from a street assessment made pursuant to §8716 Burns 190S, Acts 1905 p. 219, §111, providing that the boards of public works shall assess the abutting lots for the cost of street improvements, and that if the owner of any lot is aggrieved he may petition the circuit court for the appointment of appraisers, whose report shall be “final and conclusive.” p. 494.</p> <p>4. Appeal.— Jurisdiction.— Dismissal.— Street Assessments.— The Appellate Court has no jurisdiction of an appeal from an order of the circuit court in a street assessment proceeding, where the circuit court had none. p. 494.</p>

Prom Jefferson Circuit Court; Hiram Francisco, Judge. Action by The State of Indiana against Michael Noon (Thomas B. Dillon, as the administrator of his estate, prosecutes the appeal). Prom a judgment for plaintiff, defendant appeals.

<p>■From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by James W. Johnson against Patrick Hallagan. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Wells Circuit Court; John M. Smith, Special Judge.</p> <p>Action by Lancaster Township of Wells County against John C. Graves, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by the J. I. Case Threshing Machine Company against Prank T. Souders. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Municipal Cóbpobations. — Street Improvements. — Assessments. —Appeal.—Under §8714 Burns 1908, Acts 1905 p. 219, §109, providing that “tbe question of special benefits shall be deemed conclusively determined by and in the proceedings before the board of public works,” and §8716 Burns 1908, Acts 1905 p. 219, §111, providing that if the owner of any lot shall petition the circuit court within ten days from the completion of the assessment roll, the court shall appoint three appraisers whose report “shall be final and conclusive,” no appeal lies from the assessment so made, and a defendant in a foreclosure suit cannot, therefore, contest the amount of his assessment, pp. 510, 511.</p> <p>2. Appeal. — Right of. — The right of appeal is statutory., p. 511.</p>

<p>1. Appeal. — Precipe. — Certificate. — Bills of Exceptions. — “Evidence.” — Where appellant’s precipe directed the clerk to “prepare and certify a full, true and complete transcript of all the papers, orders, evidence and proceedings, filed and had in” the cause, and the clerk certified that the transcript contained “full, true and correct copies of all papers * * * and * * * the original bill of exceptions, containing the evidence * * * as required by said precipe, and as directed by the plaintiff herein,” the bill of exceptions is a part of the record, the direction to include the “evidence” being equivalent to a direction to include the bill of exceptions, which alone contained the evidence, the clerk’s certificate curing the defect, if any exists, pp. 514, 515.</p> <p>2. Appeal. — Transcript.—Copies.—With the exception of the bill of exceptions (see §§657, 067 Burns 1908, Acts 1897 p. 244, Acts 1903 p. 338, §7), the transcript on appeal may contain only copies of the papers and entries below; and if the originals thereof be certified they cannot be considered, p. 515.</p> <p>3. Contracts. — Sales of Animals. — Breach.-—Market Price. — Complaint. — A complaint for the breach of a contract for the purchase of hogs, alleging that the plaintiff, upon defendant’s refusal to accept the hogs, shipped them to the Union Stockyards at Indianapolis and sold them at a certain price, being the best price he could obtain, sufficiently shows that he sold them at the market price. Ridgley v. Mooney, 10 Ind. App. 302, distinguished, p. 516.</p> <p>4. Pleading. — Evidence.—Judicial Notice. — A complaint alleging that animals were sold at a stockyard sufficiently shows that they were sold at the market price, since courts judicially know that the sale of animals at such places determines the market price, p. 517.</p> <p>5. Contracts. — Bales. — Breach. — Notice. — In an action for the breach of an executory contract to purchase hogs, it is not necessary for the plaintiff, after the vendee’s refusal to accept the hogs, to prove that he gave such vendee notice of the sale of the hogs, since the title remained in the vendor, and the action was merely for the breach of contract, p. 517.</p> <p>6. Contracts. — Sales.—Breach.—Special Findings. — In an action for the breach of an executory contract to purchase a certain number of hogs, special findings that defendant refused to accept the hogs, that the plaintiff sold them and that his loss thereon in consequence of such refusal was a certain sum, requires a judgment for the plaintiff in such amount, p. 518.</p>

<p>From Warrick Circuit Court; Roscoe Riper, Judge.</p> <p>Action by John E. Fitzpatrick against George L. Mesker. From a judgment for plaintiff, defendant appeals.</p>

<p>From Henry Circuit Court; Ed Jackson, Judge.</p> <p>Suit by Joseph Mouch against the Mooreland Rural Telephone Company. From a decree for plaintiff, defendant appeals.</p>

<p>1. Drains. — Repairs.—Notice.—Jurisdiction.—Under §5631 Burns 1905, Acts 1905 p. 456, §104, providing that the repairs on drains “shall be let as a whole or by sections, as the surveyor may deem for the best interests of the parties * * * after notice first given for ten days by posting,” such surveyor’s jurisdiction to proceed is restricted to the method prescribed; and his action in letting such contract and in repairing the drain without the giving of such notice is void. p. 529.</p> <p>2. Drains. — Repairs.—Assessments.—Notice.—Complaint.—A complaint alleging that the county surveyor, without notice, and without bids, let a contract for the repair of • a drain extending through plaintiff’s land, that he made an assessment for the expenses thereof and placed such assessment on the tax duplicates against plaintiff’s property, and praying that such assessment be canceled and declared void, is sufficient, p. 530.</p> <p>3. Drains. — Repairs.— Jiorisdiction. — Injunction.—Appeal.—Where a drain is repaired without giving the affected landowners any notice thereof, and without receiving any bids for the making of such repairs, the remedy is by injunction and not by appeal, p. 530.</p> <p>4. Tbiae. — Verdict.—Issues Decided. — A general finding constitutes a finding on every issue in favor of the prevailing party, p. 531.</p> <p>5. Appeal. — Weighing Evidence. — Where there is any evidence tending to support the finding of the trial court, the judgment will not be disturbed, p. 531.</p>

<p>1. Pleading. — Complaint.—Sufficiency.—Demurrer.—Special Findings.- — Conclusions of Law. — The overruling of a demurrer to a complaint need not be considered on appeal, where the exceptions to the conclusions of law upon the special findings present the same questions, p. 533.</p> <p>2. Trial. — Conclusions of Law. — Exceptions.—Special Findings.— An exception to the conclusions of law admits, for the purposes of such exception, that the facts were correctly found, p. 535.</p> <p>8. Specific Performance. — Contract to Convey Real Estate.— Possession. — An oral contract by a father to purchase real estate for his daughter will be specifically enforced, where she was put in possession under the contract, where the purchase price was paid, and where the father repudiated the contract, p. 535.</p> <p>4. Specific Performance. — Contracts.—Demand.—When Unnecessary. — Where the vendor repudiates his contract to convey, or places himself in a position which would render a demand unavailing, no demand is necessary before bringing a suit for specific performance, p. 536.</p> <p>5. Specific Performance. — Refusal to Perform Contract. — Demand. —Where the contract fixes the time for making a conveyance upon payment of the purchase price, a failure to make the conveyance perfects the purchaser’s right to compel the performance of the contract, p. 536.</p> <p>6. Frauds, Statute of. — Contracts to Convey Real Estate. — The fifth clause of §7462 Burns 1908, §4904 R. S. 1881, providing that “no action shall be brought in any of the following cases: * * * Fifth. Upon any agreement that is not to be performed within one year from the making thereof,” does not apply to an oral contract that might be performed within one year, nor to any contract concerning real estate, p. 537.</p>

Prom Greene Circuit Court; Charles E. Henderson, Judge. Action by the E. I. DuPont Company against the Pennsylvania and Indiana Coal Company. Prom a judgment for plaintiff for part of its demand, it appeals.

<p>From Superior Court of Madison County; Cassius M. Greenlee, Judge.</p> <p>Action by Jacob H. Harter against Austin P. Bradley and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>Prom Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Mary Bisson against Morse Harrod. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Vendor and Purchaser. — Liens.—Purchase of Land Subject to. —Presumptions.—Suretyship.—One taking a deed “subject to all liens,” does not become personally liable to pay such liens; but the land thereafter constitutes the primary fund from which such liens are to be paid, the presumption being that the amount of the liens was deducted from the purchase price, p. 567.</p> <p>2. Vendor and Purchaser. — Liens.—Agreements to Pay. — Liability. — A purchaser who accepts a deed containing a promise to pay existing liens becomes personally liable for the payment of such liens, p. 568.</p> <p>3. Vendor and Purchaser. — Assumption of Payment of Liens:— Suretyship. — Where a purchaser buys land encumbered by a mortgage, agreeing to pay such mortgage, the mortgagee, unless he has assented to such arrangement, may treat both the mortgagor and the purchaser as principal debtors; but the land constitutes the primary fund for the payment of the mortgage, and a personal judgment for the residue only may be taken, p. 568.</p> <p>4. Vendor and Purchaser. — Covenants in Prior Deeds. — Effect.— Presumptions. — A purchaser is bound by the terms of covenants contained in prior deeds to the lands purchased; and he is presumed to know thereof, p. 569.</p> <p>5. Vendor and Purchaser. — Covenants in Prior Deeds. — Effect.— A purchaser whose vendor agreed in his deed to accept the deed to the land in question, “subject to all liens,” is bound thereby, though no mention is made in his deed of one of such liens, p. 569.</p> <p>6. Subrogation. — Sureties.—Vendor and Purchaser. — Liens.—If a mortgagor is primarily liable for the payment of his mortgage, he cannot be subrogated to the rights of the mortgagee; but where he has conveyed the land to a grantee who has agreed to pay the lien, such mortgagor is subrogated, upon payment of the mortgage, to the rights of the mortgagee in the enforcement of the lien against the land. p. 569.</p> <p>7. Vendor and Purchaser. — Prior Liens. — Asswm/ption of Payment of. — Evidence.—Where the deed of a grantee’s remote grantor provided that the land was sold for a consideration of $1, and “subject to all liens,” the stated consideration for the deed to the grantee, made on the same day, being $5,000, an existing lien thereon for $3,500 being specifically assumed as a part of the purchase price in such last deed, such facts tend to show that an existing mortgage for $500 was assumed by the grantee of such remote grantor, p. 570.</p> <p>8. Vendor and Purchaser. — Liens.—Specific Mention of One and Omission of Another. — Evidence.—A deed conveying land encumbered by two mortgages, specifically naming one to be assumed for payment by the purchaser, tends to show that such vendor considered himself liable as a principal for the payment of the other mortgage for which he was liable under the provisions of his. deed. p. 571.</p> <p>9. Vendor and Purchaser. — Recorded Deeds. — Liens.—notice.— A deed duly recorded containing a provision that the land is conveyed “subject to all liens,” constitutes notice thereof to all subsequent purchasers, and: is binding upon them, making such land the primary source of funds for the payment of such liens, p. 571.</p> <p>10. Subrogation. — Vendor and Purchaser. — Liens.—Deeds.—Principal and Su/rety. — Answer.—In a suit by the personal representative of defendant’s remote grantor, to recove] che amount of a lien upon defendant’s land, paid by such representative, an answer that such lien constituted the individual debt of decedent, that it continued his debt until his death, and that the debt was fully paid by such representative before the bringing of the suit, is insufficient where the complaint alleged that the deed from decedent was executed “subject to all liens,” of which the lien in question was one, such answer failing to show that decedent was primarily liable as a principal, p. 571.</p> <p>11. Subrogation.— Vendor and Purchaser.— Liens.— Deeds. — Answer. — Evidence.—In a suit by a remote grantor’s personal representative to recover the amount of a lien upon defendant’s real estate, paid by such representative, an answer that such decedent as a part consideration for his conveyance to the defendant’s grantor orally agreed to pay such lien, and that he and the plaintiff subsequently paid it, is sufficient, though there was a provision in the deed from decedent that the land was conveyed “subject to all liens,” oral evidence being admissible to show the real consideration, p. 572.</p> <p>12. Vendor and Purchaser. — Liens.— Payment. — Consideration.— A vendor who had mortgaged his land, afterwards conveying it, orally agreeing to pay such mortgage, is not a surety in the payment of the mortgage, but a principal; and the consideration for his original mortgage is sufficient to support the subsequent agreement to pay such mortgage, where he and his grantee mutually agree in determining the purchase price that the mortgage shall be paid by such vendor, p. 574.</p> <p>13. Subrogation. — Vendor and Purchaser. — Liens.—Forbearance to Sue. — Consideration.—Answer.—In a suit by the personal representative of a remote vendor for subrogation to the rights of a mortgagee of defendant’s lands, the complaint alleging that such remote vendor’s deed contained a provision that the land was conveyed “subject to all liens,” an answer that the defendant accepted his deed upon the representation that the specific mortgage assumed was the only lien against the land, that he believed such representation, being ignorant of another mortgage thereon, that when he learned of the other mortgage he called upon such remote vendor and threatened to institute an action against defendant’s vendor, that as a settlement thereof such remote vendor agreed to pay such mortgage, and that pursuant thereto, he paid interest thereon, and after his death, his administratrix paid it, is sufficient, such, agreement being supported by a consideration, since he might have become liable, having acknowledged that he was primarily liable for the debt. pp. 574, 577.</p> <p>14. Frauds, Statute of. — Contracts.— Surety . — Vendor ancl Purchaser. — Where a mortgagor conveys the lands in question “subject to all liens,” and his grantee conveys such lands to the defendant, making no mention of the mortgage in question, such mortgagor’s promise to the defendant to pay such mortgage is not a promise to pay the debt of another, and, therefore, is not within the statute of frauds, pp. 575, 577.</p> <p>15. Contracts. — Consideration.—Value of.- — Where parties agree to a consideration of indeterminate value for their contract, the courts will uphold the contract, p. 575.</p> <p>16. Subrogation.— Vendor and Purchaser.— Liens.— Agreements to Pay. — Consideration.—Answer.—Where a mortgagor conveys the mortgaged lands “subject to all liens,” and his grantee conveys without mentioning such mortgage in his deed and such mortgagor and his personal representative are compelled to pay such mortgage, an answer, in a suit by such representative for subrogation to the rights of the mortgagee, that the defendant demanded that such mortgagor pay the debt, that he was financially embarrassed and could not pay it, but promised that if time for payment were extended by the mortgagee — the State of Indiana — he would pay it, and that defendant granted such extension, is bad, since the defendant was powerless to grant such an extension, p. 577.</p> <p>17. Pleading. — Overruling Demurrer to Insufficient Paragraph of Answer. — Appeal.—The overruling of a demurrer to an insufficient paragraph of answer constitutes reversible error, where the finding for defendant was general; and the court on appeal will not examine the evidence to determine whether such ruling was harmless. MeFadden v. Schroeder, 9 Ind. App. 49, overruled, pp. 577, 578, 582.</p> <p>18. Appeal. — Harmless Brror. — Where an error is shown affirmatively to have been harmless, the judgment will not be disturbed, pp. 578,581.</p>

<p>1. Nuisance. — Use of P'i¡pperty. — Incidental Damage. — Maxims.— Though the maxim “sic utere tuo ut alienum non laedas’’ expresses a well-settled rule of law, it must be limited in its broad statement so as not to include the damages incident to the proper use of property, expressed in the words “damnum absque injuria." p. 58G.</p> <p>2. Nuisance. — Definition^-Statutes.—“Whatever is injurious to health, or indecent, or offensive to the senses; or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property,” constitutes the statutory definition of a nuisance (§291 Burns 1908, §289 R. S. 1881) ; and it is for the courts to determine whether the particular facts bring the case within the statute, p. 588.</p> <p>3. Raileoads. — Intemrban.—Nuisance.—The use of a high voltage of electricity by an interurban railroad does not constitute a nuisance per se, where it is authorized by law, though the circumstances and manner of such use may make it a nuisance, p. 58S.</p> <p>4. Pleading. — Allegations.—How Considered. — A pleading is presumed to contain all the facts in the party’s favor, p. 588.</p> <p>5. Injunction. — Steam Railroads. — Interurban Railroads. — Use of Electricity. — Complaint.—A compiaint by a steam railroad company to enjoin an interurban railroad company from operating its line, alleging that defendant has installed and is using high-tension currents of electricity, that by induction all electrical conductors in proximity to such system are caused thereby to have similar electrical currents, that such currents interfere with the plaintiff’s telegraph lines, that such interference could have been avoided by defendant’s installation of electrical devices and appliances, and that upon the completion of defendant’s road the interference will destroy plaintiff’s use of its telegraph lines, to its damage, does not state a cause of action, pp. 588, 589, 591, 598, 594.</p> <p>6. Railroads. — Interurban.—Eminent Domain. — Interurban railroad companies are g«tm-public corporations, and are empowered to select their routes, and to condemn the property necessary for ‘their use. p. 589.</p> <p>7. Damages. — Sine Injuria. — Use of Property. — Legislative Sanction. — One using his property under legislative sanction, in a reasonable and proper way, without malice or negligence, is not liable for incidental damages to others, such injuries being regarded as “damnum absque injuria”; and the fact that the plaintiff was established in the use of his property before defendant located and established its business does not affect the question, p. 590. -</p> <p>8. Evidence. — Judicial Notice. — Electricity.—Courts take judicial notice that 33,000 volts of electricity, if uncontrolled, is dangerous to life, limb and property, p. 593.</p> <p>9. Constitutional Law.- — Destruction of Property. — Use.—The legislature has no power to authorize such a use of property as virtually to deprive an adjoining owner of the legitimate and proper uses of his property, p. 593.</p>

<p>From Rush Circuit Court; Will M. Sparks, Judge.</p> <p>Action by Chauncey K. Poer against Joseph S. Johnson. From a judgment for defendant, plaintiff appeals.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Action by Henry Rawie against Edmund R. Week. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint.—Demurrer.—Amended, Complaint. — The filing of an amended complaint while a demurrer to the original complaint was pending takes such original complaint out of the record and a subsequent ruling on the demurrer raises no- question. p. 608.</p> <p>2. Pleadmg. — Amended Complamt. — Demurrer.—A demurrer filed after the filing of an amended complaint will be deemed as addressed to such amended complaint, the original complaint being out of the record, p. 608.</p> <p>3. Injunction. — Deeds.—Covenants.— Breach.— Railroads. — ■ Complamt. — A complaint alleging that the plaintiff conveyed a right of way to defendant railroad company’s agent, that defendant company accepted and occupied such right of way, that a covenant in such deed required the grantee to construct “a standard fence of woven wire, with barbs on top, sufficient to turn all kinds of stock and should permanently maintain a good and lawful fence,” that defendant was threatening to erect an unlawful fence insufficient to turn stock, that the erection of such fence would work irreparable damage to plaintiff and that defendant was insolvent, and praying an injunction, is sufficient when questioned for the first time on appeal, p. 608.</p> <p>4. Injunction. — Legal Remedy. — Injunctive relief will not be denied on the ground that the plaintiff has a legal remedy, unless the legal remedy is as full and adequate as the remedy in equity. p. 608.</p> <p>5. Injunction. — Deeds.—Covenants.—Fences.—Railroads.—Where plaintiff’s deed to- a railroad company provided for the construction and maintenance by the company of a fence “sufficient to turn all kinds of stock,” and the company was threatening to build an insufficient fence, the plaintiff’s remedy in equity is much more adequate than his remedy at law, especially where plaintiff used his lands for grazing purposes, p. 609.</p> <p>6. Injunction. — Multiplicity of Suits. — Defective Fences. — Where defendant railroad company agreed to construct and maintain a fence “sufficient to turn ail kinds of stock” along its right of way through plaintiff’s land, equity will restrain the construction of an insufficient fence on the ground that it will prevent a multiplicity of actions for a breach of the covenant, pp. 609, 610.</p> <p>7. Injunction. —■ Deeds. — Covenants to Construct Fence along Railroad Right of Way. — Statutes.—The fact that railroad companies are required by statute to fence their rights of way, does not prevent them from contracting to construct and maintain a particular kind of fence; and they may be enjoined from constructing a different kind of fence from the one contracted for. p. 610.</p> <p>8. Injunction. — Restraining Breach of Covenmt. — Specific Performance. — The breach of a contract enforceable by specific performance may be enjoined, the remedy of injunction against a breach being a negative specific performance, p. 010.</p> <p>9. Specific Performance. — When Granted. — In order to enforce specific performance of a contract it must be founded upon a valuable consideration, it must be definite, fair, just, and specifically enforceable against both parties without hardship against either, and there must be no equally adequate legal remedy. p. 611.</p> <p>10. Specific Performance. — Contracts.—Definiteness.—Parol Evidence. — Pences.—Injunction.—A contract by a railroad company to construct and maintain along its right of way “a standard fence of woven wire, with barbs on top, sufficient to turn all kinds of stock” is susceptible of specific performance, parol evidence being admissible to apply the terms thereof to the subject-matter; and the violation of such contract may be enjoined, pp. 611, 614.</p> <p>11. Injunction. — Legal Remedy. — Election.—The fact that plaintiff chose an equitable remedy when he might have secured relief in an action at law, is not a sufficient answer to a suit in equity, p. 612.</p> <p>12. Injunction. — Partial Relief. — Injunctive relief will not be denied on the ground that full relief cannot bo awarded; and if one party has fully performed his part of the contract, and the other is in the enjoyment of his rights secured by the contract, he may be enjoined from violating the express affirmative provisions on his part. p. 612.</p> <p>13. Specific Performance. — Buildmg Contracts. — Ordinarily, building contracts will not be specifically enforced; but in certain cases, where justice cannot be otherwise secured, they will be so enforced, p. 614.</p> <p>14. Specific Performance — Discretion.—The right to specific performance is a matter of sound legal discretion, controlled by equitable principles, and exercised upon a consideration of all the circumstances of the particular case. p. 614.</p> <p>15. Injunction. — Breach of Covenant to Pence. — Deeds.—Agency. —A railroad’s breach of covenant to build a particular kind of fence may be enjoined; and the fact that the deed containing the covenant was executed to the company’s agent does not affect the matter, where the company was in possession of the land and accepting the benefits of the grant, p. 614.</p> <p>16. Appeal. — Presumptions.—On appeal the presumption is in favor of the action of the trial court, p. 618.</p>

<p>1. Master and Servant. — Coal Mines. — Props.—Registering Reed thereof. — Complaint.—In a complaint for personal injuries alleged to have been sustained because of a lack of props for a coal mine in which plaintiff was employed, it is not necessary to allege that the plaintiff registered a request for props on the blackboard provided for that purpose. Muren Coal, etc., Co. v. Copeland, 46 Ind. App. 230, followed, p. 616.</p> <p>2. Master and Servant. — Goal Mines. — Power to Make Roof Secure. — Complaint.—Transfer.—Whether a complaint by a miner for injuries sustained because of an insecure roof in a coal mine must allege that such roof could have been made safe, is a question the Appellate Court cannot decide where there is an equal division of the judges on such question, and the ease will be transferred to the Supreme Court, p. 616.</p>

<p>1. Appeal. — Transcript.—Verity.-—A properly-prepared and duly-authenticated transcript imports verity, p. 620.</p> <p>2. Appeal. — Matters in Bar. — Mow Shown. — Matters in bar of an appeal may be presented without formal pleadings, by a verified motion to dismiss, and such motion may be resisted by counter-affidavits. p. 621.</p> <p>8. Appeal. — Judgment.—Authority of Attorneys. — Contradicting.— Where the record shows that attorneys represented defendant and settled his case, his affidavit that they were not authorized will not overthrow the record, where counter-affidavits, as convincing as defendant’s, stated that such attorneys were authorized. p. 621.</p> <p>4. Appeal. — Judgment by Agreement. — Contradicting.—Estoppel.— A judgment for possession and for damages for unlawful detention of real estate, further providing that “in pursuance of the agreement of the xiarties to this action * * * the writ of ejectment shall not issue under this judgment” until a certain time, affirmatively shows an agreement by the parties to the judgment, and the parties are estopped to prosecute an appeal therefrom after the benefits thereof have been accepted, p. 621,</p> <p>5. Appeal. — Dismissal.— An appeal from a judgment by agreement will be dismissed, p. 622.</p>

<p>Prom Hendricks Circuit Court; James L. Clark, Judge.</p> <p>Action by Charles H. H. Sherman against the Indianapolis Traction and Terminal Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Railkoads. — Use of Streets. — Frightening Horses. — Last Glem' Chance. — Complaint.-—A complaint alleging that the plaintiff was driving his horse along a street, that the defendant’s interurban car approached from the rear at an excessive speed, making unusual and unnecessary noises, frightening plaintiff’s horse, which was gentle and safe and which was driven in a careful manner, that defendant’s servants could have seen that plaintiff’s position was perilous, and that he could not escape, that defendant negligently continued its reckless speed, and blowing its whistle, in an endeavor to pass him, knowing that the horse was running away, to plaintiff’s damage, is sufficient, p. 635.</p> <p>2. Negligence. —• Contributory. —■ Negativing. — Complaint. — Since 1899 (Acts 1899 p. 58, §362 Burns 1908) it is not necessary, in a complaint for personal injuries, to negative contributory negligence, a complaint, otherwise good, being sufficient where it does not affirmatively show such negligence, p. 638.</p> <p>3. Railroads. — Running úoim Travelers. — Wilful Injuries. — Complaint. — A complaint alleging that the plaintiff was driving along a street, that the defendant’s ear approached from the rear at an excessive speed, causing unusual noises and frightening plaintiff’s horse, that defendant’s servants saw plaintiff’s plight and wilfully and maliciously sounded the whistle, causing such horse to run away, that they then purposely and maliciously pursued said horse in order to frighten it still more, that they knew the plaintiff could not stop the horse nor extricate himself from the danger, that, seeing the horse plunge and rear, they continued maliciously to sound the whistle intending to cause the horse to continue to run away, to plaintiff’s damage, shows a wilful injury, p. 638.</p> <p>4. Appeal. — Briefs.—Waiver.—Points not discussed are waived, p. 646.</p> <p>5. Railroads.— Running down Travelers.— Noises.— Brightening Horses. — Evidence.—In an action by a traveler for injuries sustained because of the approach of defendant’s car and of unusual and unnecessary noises made, thereby frightening plaintiff’s horse and causing it to run away, it is not necessary for the plaintiff to show that such operation or noises were not necessary nor usual at other times, or under other circumstances, p. 641.</p> <p>6. Railroads.— Speed.— Nonexperts.— Evidence.— Nonexperts are competent to testify as to the speed of a train, p. 641.</p>

<p>Prom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Erastus Leonard against George L. Mesker. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Floyd Circuit Court; William G. TJtz, Judge.</p> <p>Action by the Baltimore and Ohio Railway Company against the New Albany Box and Basket Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal. — Weighing Evidence. — The jury trying a case is the sole judge of the weight of the evidence and of the credibility of the witnesses; and where there is some evidence tending to sustain every material allegation of the complaint, the judgment will not be disturbed, on appeal, for a want of evidence, p. GGO.</p> <p>2. Work and Labob.— Compensation. — Payment. — Evidence.— Where plaintiff alleges that, by contract, she was to receive $1.50 a week for her services, and that if she remained with decedent and his wife during their lives, she was to receive certain land, and the evidence shows that she so remained, and that she received $1.50 a week, it is for the jury to determine whether she was paid in full. p. 661.</p> <p>8. Work and Labor. — Burden of Proof. — Harmless Error. — In an action for services rendered, an instruction that if the claimant rendered any services “for which she has not already been paid, she would be entitled to recover the reasonable value thereof, unless they were gratuitously rendered, and the burden is on defendant to show that they were rendered gratuitously, if rendered at all,’’ is erroneous, the burden being upon plaintiff to establish affirmatively her right to recover; but such error was harmless, where there was no evidence that such services were rendered gratuitously, p. 661.</p>

<p>1. Quieting Title. — Complaint.—A complaint, alleging that the plaintiffs own certain real estate, and that defendants claim an interest therein, which claim is unfounded and constitutes a cloud upon plaintiff’s title, will be held sufficient, p. 665.</p> <p>2. Quieting Title.— Ownership. — How Alleged.— Complaint. — A complaint alleging that the plaintiffs were tenants by the entirety of certain land and that they are entitled to the free and uninterrupted possession thereof, shows ownership sufficiently to withstand a demurrer, p. 666.</p> <p>3. Quieting Title. — Issues.—Evidence.—In a suit to quiet title, the defendants may introduce evidence of any right which they may claim, the claim of any right by defendants being necessarily adverse to the ownership in fee by the plaintiff, p. 666.</p> <p>4. Quieting Title. — Possession.—Evidence.—In a suit to quiet title, the plaintiffs alleging their ownership and right to possession, and the defendants pleading a general denial, evidence of an easement claimed by defendants is admissible, p. 666.</p> <p>5. Pleading.— Judgment.— Motion in Arrest.— Complaint.— Paragraphs. — A motion in arrest of judgment should be overruled where any one of the paragraphs of complaint is good. pp. 667, 668.</p> <p>6. Quieting Title. — Description.—Complaint.—In a suit to quiet title, a description of the land in question as “twenty acres off of the west side of the northwest quarter of the northwest quarter” of a certain section, is sufficient, p. 667.</p> <p>7. Pleading. — Complaint. — Paragraphs. — Motion in Arrest. —• Where the paragraph of complaint on which the judgment rests is sufficient on demurrer, a motion in arrest should be overruled, regardless of the sufficiency of the other paragraphs, p. 668.</p>

<p>From Rush Circuit Court; Will M. Sparks, Judge.</p> <p>Action by Cyrus C. Barrett against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Newton Circuit Court; Charles W. Hanley. Judge.</p> <p>Action by Percy Coon against the Chicago and Eastern Illinois Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Answer.—Demurrer to. — Form.-—A demurrer to a paragraph of answer on the ground that such paragraph “does not state facts sufficient to constitute an answer in said cause,” presents no question, p. 693.</p> <p>2. Pleading.— Paragraphs of Answer.— Facts Provable Under Another. — Demurrer.—It is harmless error to sustain a demurrer to a paragraph of answer, where the, facts therein alleged are provable under another paragraph, p. 693.</p> <p>3. Vendor and Purchaser. — Vendor’s Liens. — Subsequent Purchasers. — Notice.—Special Findings. — Special findings in a suit to establish and to enforce a vendor’s lien, that prior to the conveyance of the real estate in question to defendant “he had notice and knowledge of said notes due to plaintiff * * * which were claimed to be notes as a part of the purchase money of said real estate,” are insufficient to show that defendant had notice that such notes evidenced a part of the purchase price of such real estate; and the burden being on plaintiff to establish such fact, the findings do not support a decree in her favor, p. 694.</p> <p>4. Appeal. — Mandate.—Reversal.—New Trial. — Though appellant is technically entitled to a judgment on the special findings, where the interests of justice require, a new trial will be ordered on a reversal, p. 695.</p>