Volume 49 — Indiana Appellate Court Reports

<p>Cross-complaint by Charles F. Martin, as guardian of Nancy Groover, deceased, against Harvey M. Caldwell and others. Prom, a judgment for defendants, plaintiff appeals.</p>

<p>Suit by Claudia Mueller against Robert J. Ruf and others. From a deereei for plaintiff, defendants appeal.</p>

<p>1. Mobtoases. — Liens.—Suits.—Abatement.-—Decedents’ Estates. — * Suits for the enforcement of liens against the estates of decedents cannot be maintained until the expiration of “one year from the death of the decedent” (§2S47 Burns 1908, Acts 1883 p. 151, §17). p. 14.</p> <p>2. Couets. — Jurisdiction. — Dismissal.— Appeal. — Whenever the trial court ascertains that it has no jurisdiction of a case it should allow the plaintiff to dismiss it, or dismiss it on its own motion; and an appeal from a dismissal, where the trial court had no jurisdiction, will be dismissed, p. 14.</p> <p>3. Liens. — Decedents’ Estates. — Suits.—Time for Filing. — A cross-complaint to enforce a judgment lien, in a suit to foreclose a mortgage on the real estate of a decedent, cannot be enforced, if filed within one year from decedent’s death, where it seeks to compel the senior mortgagee first to exhaust the widow’s one-third interest in the property, thereby leaving a surplus sufficient to pay such judgment lien, p.' 15.</p> <p>4. Descent and Distribution. — Mortgages.—Widows.—A widow who joins in her husband’s mortgage is entitled, at Ms death, to require such debt to be paid primarily from the proceeds of two-thirds of his personal estate not required for the payment of preferred claims, secondarily from two-thirds of the land which does not descend to her as a widow, and lastly from her one-third in- . terest in the mortgaged land. p. 15.</p> <p>Prom Monroe Circuit Court; James B: Wilson, Judge.</p>

<p>1. Witnesses. — Competency. — Physicians. — Evidence. — Railroads. — In an action by a passenger against an interurban railroad company for damages for personal injuries, tbe company’s physician who examined the plaintiff’s injuries is not competent to testify, over plaintiff’s objection, to the character of such injuries. p. 17.</p> <p>2. Damages. — Excessive.—Railroads.—A judgment for $3,000 is not excessive, where the plaintiff, a passenger, was thrown from her car under very terrifying conditions, badly cut and bruised, two ribs and collar bone broken, and where she was under a physician’s care for a considerable time, and where she was liable to suffer pain for a long time in the future, p. 18.</p> <p>3. Carriers. — Railroads.—Curves.—Guard Rails. — Evidence.—Experts. — Where a complaint alleged that defendant interurban railroad company negligently constructed its road with sharp and dangerous curves and negligently failed to provide guard rails for such curves, expert testimony of a civil engineer is admissible to show that in such circumstances guard rails should have been provided, p. 18.</p> <p>4. Carriers. — Passengers.—Derailed Cars. — Causes.—Complaint.— Evidence. — Where a complaint details the acts of alleged negligence of defendant interurban railroad company in causing its car to leave the track, to plaintiff’s injury, concluding with a general averment that by reason of such acts and because of the negligence of defendant plaintiff was violently thrown from her seat out of such car twenty-five feet on the ground, the plaintiff is not required to prove all of such acts of negligence, the gist of the cause of action being the negligent throwing of plaintiff from her seat to the ground, the particular manner of its being done whether as alleged, or otherwise, being immaterial, p. 19.</p> <p>From Clark Circuit Court; E. C. Montgomery, Judge.</p>

<p>1. Deeds. — Testamentary.—A deed purporting to convey real estate but which postpones title and the enjoyment thereof until after tile death of the grantor, is a testamentary instrument and is invalid as a deed; but a deed may lawfully convey the title and postpone the enjoyment, p. 23.</p> <p>2. Deeds. — Ufe Estates. — Remainders.—Testamentary Dispositions. —A deed by a mother and father reciting that the grantors, “retaining the rents and profits [of certain land] during .the life of” such mother, “convey and warrant to the son of the above grantors” certain real estate, “reserving to [the mother] the rents and profits and full control of the land during her natural life, and after the death of [the mother] the grantee * * * to pay” to the father, during his life, a certain sum annually, and to pay a certain mortgage, “and after the death of” the grantors “the land * * * to be the absolute property in fee simple” of such son, conveys a present interest to the son, and is not a testamentary instrument, the mere reservation of a life estate having no such effect, p. 24.</p> <p>3. Deeds. — Construction.—Deeds will be construed, if possible, so as to give them legal efficacy, p. 26.</p> <p>From Fountain Circuit Court; Isaac Schoonover, Judge.</p>

<p>1. Carriers. — Passengers.—Railroads.—Stations.—Defects.—Where a complaint alleged that defendant railroad companies negligently removed a platform from in front of their station-house, that they negligently excavated .the earth from underneath such station-house and along the edge of their platform, by reason of which the plaintiff in stepping from the station-house fell, to her damage, answers to interrogatories to the jury that the defendants removed a board platform from in front of the waiting room and had placed a cinder platform in its place, that the plaintiff, ignorant of any defect therein stepped from the door of the station-house onto such cinder platform, that her foot and leg went below the surface of the cinder platform to about four inches above the knee, but did not go straight down but passed under the sill of the building, are not in irreconcilable conflict with a verdict for the plaintiff, pp. 27, 30.</p> <p>2. Trial. — Verdict.—General.—A general verdict for the plaintiff imports a finding in the plaintiff’s favor on every material and issuable fact. p. 30.</p> <p>3. Trial. — Verdict.—Interrogatories.—The answers to the interrogatories to the jury control the general verdict only when they are in irreconcilable conflict therewith under any state of facts provable within the issues, p. 30.</p> <p>4. Trial. — Verdict.—Presumptions.—All reasonable presumptions are made in favor of the general verdict, and none against it. p. 30.</p> <p>5. Carriers. — Passengers.—Stations.—Platforms.—J oint Liability for — One defendant railroad company cannot escape liability for defects in a platform jointly used, on the ground that it did not construct the platform, where the evidence shows that it had control over such construction, p. 3i.</p> <p>6. Trial. — Interrogatories.—Conflict.•—Conflicting answers to interrogatories to the jury nullify one another, p. 32.</p> <p>Prom Laporte Superior Court; Harry B. TutMU, Judge.</p>

<p>Action by Walter C. Runcie against the Kupfrian Park Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by Edwin E. Watts against the City of Princeton. From a judgment for defendant, plaintiff appeals.</p>

Action by Charles Liddil, as administrator of the estate of Raymond Liddil, deceased, against the L. T. Dickason Coal Company. From a judgment on a verdict for the plaintiff for $1,800, defendant appeals.

<p>Action by Jacob L. Sullivan against Jacob Hoopengarner. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal. — Costs.—Superfluous Matters in Transcript. — Where the appellant includes superfluous matter in his transcript on appeal, the cost thereof, on reversal, should not be charged to the appellees, p, 60.</p> <p>2. New Tbial. — Special Findings. — Evidence.—If the court fails to find all the facts proved, or the facts found are contrary to, or unsupported by the evidence, the remedy is by a motion for a new trial, p. 60.</p> <p>3. Appeal. — Transcript.—Costs.—Where appellant excepted to the conclusions of law and also moved for a new trial on the ground that the decision was not supported by the evidence, the bill of exceptions containing the evidence was a proper part of the transcript on appeal for presenting the ruling on the motion for a new trial, and the cost thereof was properly taxed to appellees on reversal.' p. 61.</p> <p>4. Appeal. — Mandate.—Costs.—Taxing.—Where a judgment of reversal was ordered and the appellees desired a retaxing of costs, their motion therefor should be filed within sixty days — the period allowed for a petition for a rehearing, p. 61.</p> <p>5. Appeal. — Costs.—Taxing.—It is the clerk’s duty to tax the costs on a reversal according to law; and if he fails so to do his action can be upheld only so far as it is legal, p. 61.</p> <p>Prom Tipton Circuit Court; Jesse B. Coleman, Special Judge.</p>

<p>Action by Edward Bom and another against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Action by Mary J. Mug against John Ostendoi’f. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Action by Charles P. Hornaday against the Advance Veneer and Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Charles G. Clem against the Vandalia Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial. — Special Findings. — Conclusions of Law. — Demurrer to Complaint. — Appeal.—Where the facts within the issues are fully and correctly found, exceptions to the conclusions of law present the same questions as the rulings on the demurrers to the pleadings, p. 102.</p> <p>2. Guardian and Ward. — -Sales of Real Estate. — Setting Aside.— Limitation of Actions. — Statutes.-—Under §295 Burns 1908, subd. 4, §293 R. S. 18S1, providing that actions “for the recovery of real property sold by * * * guardians or commissioners of a court, upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming a title under a party, acquired after the date of the judgment,’ shall be commenced within five years from the date of confirmation of such sale, the heirs of an insane ward whose land was sold in 1900 by a commissioner appointed on an order of sale made upon the guardian’s ex parte application to sell such real estate for the payment of debts, and for other purposes, are barred from maintaining a suit in 1906 to set aside such sale, even though such sale was void. pp. 103, 107.</p> <p>3. Judgment. — Final.—Decree for Sale of Real Estate of Ward.— An order for the sale of real estate, made on an ex parte application of a guardian, constitutes a final judgment, p. 107.</p> <p>4. Guardian and Ward. — Sales of Real Estate. — Recovery of.— Setting Aside Deed. — Statutes.—A suit to set aside a sale of real estate ruado by a commissioner appointed by the court in an ex parte application by a guardian for tbe sale of his ward’s real estate, constitutes an action for the “recovery” of such real estate within the meaning of §295 Bums 1908, subd. 4, §293 R. S. 1881, providing that all actions “for the recovery of real property sold by executors, administrators, guardians, or commissoners of a court,” shall be brought within five years from the date of confirming the deed. p. 107.</p> <p>5. Statutes. — Oonslruetion.—Intent.—In construing a statute the intent should control the strict letter thereof, where adherence to the strict letter of the statute would lead to absurdity, p-. 108.</p> <p>Prom Whitley Circuit Court; Lemuel W. Royse, Judge.</p>

<p>1. Bills and Notes. — Accord and Satisfaction. — Instructions.— In an action on notes, tbe defense being accord and satisfaction, an instruction that it tbe settlement “was made by tbe defendant with the understanding and belief that the notes in controversy were included in it, and that plaintiff knew or should have known by the negotiations which took place that the defendant so understood the fact and while knowing such fact, executed the receipt in controversy and upon its delivery to the defendant took and accepted” defendant’s money in settlement, the defendant should recover, though subject to some criticism, is not prejudicial, p. 110.</p> <p>2. Accoed and Satisfaction. — Unliquidated Debts. — Settlement.— Where a debtor attaches conditions to the payment of a certain sum in satisfaction of an unliquidated sum, to the creditor’s knowledge, such creditor by accepting such money is bound by the conditions, p. 115.</p> <p>Prom Tippecanoe Circuit Court; DeWitt C. Wilson, Special Judge.</p>

Action by Nellie Phipps, by her next friend, against the Singer Sewing Machine Company. Prom a judgment on a verdict for plaintiff for $1,000, defendant appeals.

<p>1. Appeal. — When “Taken.” — Statutes.—Under §672 Burns 190S, §683 R. S. 1881, providing that in all cases appeals “must be taken within one year from the time the judgment is rendered,” an appeal is “taken” at the time of filing the transcript and assignment of errors in the Supreme or Appellate Court, p. 130.</p> <p>2. Appeal. — When Taken. — Judgment.-—Rendition.-—Entry of.— Signing by Judge. — An appeal must be taken within one year from the time the judgment is actually rendered, or the motion for a new trial overruled, if it is filed after judgment, the time of rendition of judgment being considered as the time when the judge actually renders it, and not the time when the entry thereof is made, or the time when the judge signs the entry or docket, p. 131.</p> <p>3. Appeal. — Judgment.—Failure of Judge to Sign. — The failure of a judge to sign the order book containing an entry of a judgment rendered constitutes a mere irregularity and does not render the judgment void. p. 133.</p> <p>4. Appeal. — Trmscript.—Court Dockets. — Bench Dockets. — The “court,” or “bench” docket is not a record from which a transcript may be taken to the Supreme Court; but, though authorized by law, its use is to serve as a memorandum docket in which the judge keeps minutes from which the order books may be made. p. 133.</p> <p>5. Appeal. — Time of Taking. — Where a judgment was actually rendered on October 8, 1908, a motion for a new trial overruled on October 10, 1908, an appeal taken on December 28, 1909, is too late though the order-book entry of the judgment was not signed by the judge until December 17, 1909. pp. 133,134.</p> <p>6. Judsment. — Rendition.—Subsequent Signing of Docket by New Judge. — The subsequent signing by tho judge rendering judgment, or by a subsequent judge, of a docket containing a judgment theretofore rendered relates back to the time of the actual rendition of the judgment, p. 135.</p> <p>From Pulaski Circuit Court; John G. Nye, Judge.</p>

<p>1. Contracts. — Conditions Precedent. — Proof of. — Where conditions precedent are required by contract to be performed, the fact that they may appear technical will not dispense with proof of their performance, p. 141.</p> <p>2. Contracts. — Conditions Precedent. — Sureties.—Where a surety company expressly set forth certain conditions limiting its liability, which should be “conditions precedent to the rights of the obligee to recover” thereunder, in order to recover, it is necessary for such obligee to prove that such conditions were performed. p. 141.</p> <p>3. Principal and Surety. — Surety Companies. — Limiting Liability. —A surety company ordinarily has the right to name the conditions under which it will become liable, but such conditions must be free from fraud 'or oppression, p. 142.</p> <p>4. Contracts. — Conditions Precedent. — Trial.—Special Findings.— Omissions. — Where plaintiff is required in an action upon contract to prove the performance of conditions precedent, a failure in the special findings to show the performance thereof, or an excuse for such failure to perform, constitutes a finding against the plaintiff, p. 142.</p> <p>5. Appeal. — Mandate.—Neto Trial. — Where justice requires, a new trial may be ordered, on appeal, though appellant on the special findings would technically be entitled to a judgment p. 143.</p> <p>Prom Superior Court of Marion County (77,633); P. W. Bartholomew, Judge.</p>

<p>1. Appeal. — Briefs.—Waiver.-—Points not argued are waived, p. 144.</p> <p>2. Cabbiebs. — Passengers. — Establishment of Relation. — Street Railways. — A person cannot become a passenger on a street car without the company’s consent, p. 145.</p> <p>3. Cabbiebs. — Repeatedly Ejecting Passengers. — Damages.—Where a passenger on a street railway, after inlying his fare, was wrongfully ejected from the car and he immediately returned and was forcibly 'ejected a second time, and he returned again and was struck by the conductor, lie may recover damages for the entire misconduct, the relation of carrier and passenger never having terminated, pp. 146,150.</p> <p>4. Cabbiebs. — Passengers.—Severance of Relation. — Street Railways. — A passenger who voluntarily leaves a street car thereby ceases to be a passenger thereon, p. 150.</p> <p>5. Cabbiebs.- — Trespassers.—Street Railways. — Remedy.—One who enters a street car and refuses to pay his fare becomes a trespasser ; and ho may be removed therefrom without liability, provided unnecessary force is not used. p. 150.</p> <p>C. Cabbiebs. — Passengers.—Misconduct.—Street Railways. — A passenger upon a street car who is guilty of misconduct thereon, may be expelled from the car. p. 150.</p> <p>7. Appeal. — Affirmance.—Damages.—-Where an unmeritorious appeal is taken the judgment appealed from may be affirmed with damages, p. 150.</p> <p>" Prom Superior Court of Marion County (75,992); Clarence E. Weir, Judge.</p>

<p>1. Troveb. — Trespass. — Converting Timber. — Life Estates. — Remainders. — Complamt.—A complaint alleging that the plaintiffs are tlie owners oí the remainder in fee simple of certain land, that the defendants unlawfully entered upon such land and cut, converted and removed certain valuable trees, to plaintiffs’ damage, states a cause of action, the allegations thereof overcoming the presumption that the life tenants were in possession of the land and that the timber was used for fences, wood and other proper purposes by the life tenant, p. 153.</p> <p>2. Pleading. — Complamt.—■Initial attack on Appeal. — All intendments are in favor of a complaint attacked for the first time on appeal; and if there is not a total failure to state some essential fact, it will be held sufficient, p. 154.</p> <p>3. Trover. — Trespass.—Damages.—Interest.—In an action for conversion, where exemplary damages are not given, the jury, in its discretion, may award interest on the value of the property, p. 154.</p> <p>4. Troveb. — Trespass.—Life Estates. — Remainders.—Instructions.— In an action for damages for trover for converting certain trees, an instruction that if the plaintiff remaindermen had knowledge that the defendants were going to cut such trees under an arrangement with the life tenant, and that they failed to object, but allowed such timber to be cut, such failure constituted a license to cut such timber, barring plaintiffs from a recovery, is too favorable to defendants, since it did not charge the plaintiffs with a knowledge of the actual cutting of the timber, or of the ummber or kind of trees to be cut, or of the use to be made thereof, pp. 155,156.</p> <p>5. Estoppel. — License.—Effect.—A license partakes of the nature of an estoppel and may be implied from inducements and representations of the owner, or from silence where an owner sees and knows the extent of the acts done, and fails to object thereto, p. 156.</p> <p>6. Trover. — Trespass.—License.—Instructions.—Ciiring 6y Interrogatories. — Any objection to an instruction as to defendant’s license to convert the trees sued for is overcome by answers to interrogatories to the jury that no license was given, p. 157.</p> <p>From Harrison Circuit Court; Christopher W. CooTt, Judge.</p>

<p>1. Appeal. — Assignments of Errors. — Admission of Evidence.— New Trial. — Alleged error in the admission of evidence cannot be assigned independently on appeal,-but must be made a ground for a new trial, p. 159.</p> <p>2. Appeal. — Assignments of Errors. — Inten'ogaiories.—Eeio Trial. —Questions relating to the interrogatories to the jury cannot be made grounds for a motion for a new trial; and if such answers should be in conflict with the general verdict, a motion for judgment notwithstanding the general verdict is proper, the ruling on such motion being assignable independently on appeal, p. 160.</p> <p>8. Appeal. — Briefs.—Omission of Evidence by Appellant. — Supply by Appellee. — Where material evidence is'omitted from appellant’s brief, but is supplied by appellee’s brief, the sufficiency of the evidence may be determined, p. 160.</p> <p>4. Contracts —Breach.—Worle and Labor. — Complaint.—A complaint alleging that defendant company hired plaintiff to work for it for three years at $3,600 a year, that plaintiff worked ten days and that defendant then refused to let him continue, and thereafter refused to permit him to work, that he has diligently sought similar work but has found none and that he has been damaged a certain sum, is sufficient on demurrer, p. 160.</p> <p>5. Appeal. — Weighing Evidence. — The Appellate Court will not "weigh conflicting evidence, p. 162.</p> <p>O. Contracts. — Breach.—Excessive Recovery. — A judgment for $5,000 is not excessive for the breach of a contract to pay to the plaintiff for his services $3,600 a year for three years, the evidence showing that he had been out of employment because thereof for eighteen months, p. 163.</p> <p>7. Contracts — Worle and Labor. — Breach.—Duty to Seek Other Employment. — Instructions.—In an action for damages for wrongfully discharging a servant in violation of his contract, instructions that it was the servant’s duty to seek similar work elsewhere, and that he should not recover more than his actual loss would have been had he made reasonable effort to seek work elsewhere, are not erroneous, p. 163.</p> <p>8. Contracts. — Work and Labor. — Breach.—Measure of Damages. —Instructions.—In an action for damages for defendant’s breach of plaintiff’s three-year contract of service, instructions that the plaintiff should recover his full damages to the end of the term, "Crediting defendant with what plaintiff had earned since his discharge to the time of trial, and also with what he might reasonably earn in the future to the end of such term were properly given. Pape v. Lathrop, 18 Ind. App. 633, overruled, p. 163.</p> <p>9. Trial. — Instructions.—Duplication.—It is not erroneous to refuse to duplicate instructions, p. 165.</p> <p>10. Trial. — Instructions.—Ilow Considered. — Instructions must be considered as a whole; and if they fairly state the law, there is no prejudicial error, p. 166.</p> <p>From Laporte Superior Court; H. B. Tuthill, Judge.</p>

<p>Suit by»Raleigh. L. Spencer against James Johnson and another. Prom a decree for plaintiff, defendants appeal.</p>

<p>1. Evidence.- — Sundays.—Complaint.—Courts take judicial notice that September 8, 1907, was Sunday, p. 173.</p> <p>2. Telegraphs and Telephones. — Failure to Send Message. — -Sundays. — Necessity. — Complaint. ■— A complaint alleging that the plaintiff applied to the defendant telegraph company, on September 8, 1907, to transmit and deliver a message to his wife informing her that the late trains prevented his arrival at home until morning, that defendant agreed to deliver such message that evening, and that defendant negligently failed to transmit such message impartially, in good faith, and in its order, and that it was not delivered that evening, sufficiently shows a necessity for the transmission and delivery of such message on Sunday, p. 174.</p> <p>3. Contracts. — Voidable. — Procedure. — Sundays. — Telegraphs. — Contracts made on Sunday to transmit and deliver telegraphic messages are merely voidable; and such question must be raised by an answer, p. 174.</p> <p>4. Telegraphs and Telephones. — Sundays. — Necessity. — Verdict. — In an action against a telegraph company for its failure to transmit and deliver a message on Sunday, as it had agreed, a general verdict for the plaintiff constitutes a finding that there was a necessity for sending the message on that day. p. 174.</p> <p>Prom Warrick Circuit Court; Boscoe Kiper, Judge.</p>

<p>Appeal. — Jurisdiction.—Transfer.—Where a constitutional question is presented on appeal, the Appellate Court is without jurisdiction and the case will be transferred to the Supreme Court.</p> <p>From Carroll Circuit Court; James P. Wason, Judge.</p>

<p>1. Judgment. — Nonresidents.—General Appearance. — Where nonresidents appear by attorney and a personal judgment is rendered against them and they jointly move for a new trial, the judgment is valid, p. 177.</p> <p>2. Appeal. — Assignments of Errors. — Parties.—The assignment of errors on appeal constitutes the complaint; and the names of all the necessary parties must be set forth as parties thereto, p. 177.</p> <p>3. Appeal. — Vacation. — Parties. — Dismissal. —■ Amendments. —Where a party to the judgment below has been omitted from the assignment of errors, on a vacation appeal, and the year for appeal has expired, no amendment can be made; and the appeal will be dismissed, p. 17S.</p> <p>Prom Clark Circuit Court; Harry O. Montgomery, Judge.</p>

Action' by The State of Indiana, on the relation of the Ludlow Palls Quarry Company against Peter Holthouse and others. Prom a judgment for plaintiff, certain defendants appeal.

<p>1. Appeal. — Assignments of Errors. — Rendering Judgment. — An assignment, on appeal, that the court below erred in rendering judgment against appellant, presents no question, p. 186.</p> <p>2. Contracts. — Void.—Conditions Precedent. — Failure to Perform. —Where a statute forbids the carrying on of a business without the performance of a condition precedent, a contract made for the purpose of carrying on such business, without complying with such statute, is void. p. 1S7.</p> <p>3. Contracts. — Void.—Statutes.—Misdemeanors.—A statute making the carrying on of a business, without the performance of some condition, a misdemeanor, makes void a contract made in violation thereof, though such statute does not in terms provide that such contract shall be held void. p. 187.</p> <p>4. Injunction. — Transfer of Vote. — Void.—License.—Stock Food. —Answer.—In a suit to restrain defendants from transferring a bankable note alleged to have been executed without consideration, and through fraud, an answer that it was given for a certain quantity of stock food, that plaintiff was defendant’s agent in Indiana to dispose of such food, such answer failing to show that defendants had done the requisite things entitling them to sell such food, is bad, there being no presumption that defendants had performed such conditions, p. 188.</p> <p>5. Pleading. — Insufficient Answer. — Defective Reply. — A defective reply is good enough for an insufficient answer, p. 191.</p> <p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p>

<p>1. Cemeteries. — Taxation.—Constitutional Law. — The Constitution (Art. 10, §1) providing that the general assembly shall provide for a uniform system of taxation of all property “excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be especially exempted by law,” authorizes the exemption from taxation of property of cemetery associations, used exclusively for burial purposes, p. 197.</p> <p>2. Taxation. — Statutes.—Construction.—Statutes for the taxation . of property are construed liberally in favor of equality; and statutes exempting property from taxation are construed strictly, p. 107.</p> <p>8. Statutes. — In Pari Materia. — Statutes relating to the same subject-matter should be construed together, p. 198.</p> <p>4. Cemeteries. — Taxation.—Statutes.—Section 6 of the act of 1848 (Local Laws 1848, p. 444) incorporating the Greenbush Cemetery Association, providing that “all real estate so dedicated for the [cemetery] purposes aforesaid * * * shall forever be exempt from taxation,” and section 11 thereof providing that “all moneys thereafter acquired by said association for the sale of lots * * * shall be held in trust and used exclusively for transacting the ordinary business of said association for the protection of said cemetery * * * and shall, upon no pretext whatever, be diverted from the objects contemplated in this section,” must be construed with the law of 1843 (R. S. 1843 p. 208) providing that the following property shall be exempt from taxation; “every graveyard not exceeding ten acres,” and with section 6 of the act of 1852 (1 R. S. 1852 p. 106), changing the above language to exempt “also every cemetery.” p. 198.</p> <p>5. Statutes. — Construction.—Intention.—To ascertain the intention of a statute is the prime consideration in eontruing it; and such intention is to be ascertained by a consideration of all the language used, the strict letter thereof yielding to the evident intent, p. 198.</p> <p>6. Statutes. — Construction.—Aids.—Prior cmd Subsequent Statutes. — History.—In construing a statute, prior and subsequent legislation on the same subject-matter may be considered as well as the history of the times, p. 199.</p> <p>7. Statutes. — Construction. — Conflict. — Where possible, effect should be given to all parts of a statute; and of two possible constructions, the one upholding the general purpose of the law is to be preferred, p. 199.</p> <p>8. Statutes. — Strict Construction. — Intention.—The evident intention of a statute should not be defeated because such statute is required to be strictly construed, p. 199.</p> <p>9. Statutes. — General.—Special.—Repeal.—A general statute covering the subject-matter of a special act, without apt language showing such intention, will not repeal such special act. p. 199.</p> <p>10. Statutes. — Provisions for Construction. — A statutory provision that the statute in question shall be liberally construed is mandatory, but does not annul the established rules of statutory construction, p. 200.</p> <p>11. Taxation. —Cemeteries. —Funds. —Loaned. —Money loaned at interest by the Greenbush Cemetery Association chartered by the act of 1848 (Local Laws 1S48 p. 444) and which must inure exclusively to the uses of the cemetery owned and controlled by such association, is not taxable, such money being absolutely essential to the perpetuity of tlie association and necessary for the attainment of its expressed purposes. p. 201.</p> <p>Prom Montgomery Circuit Court; Jere West, Judge.</p>

<p>Suit by Rebecca P. Stults and others against Nelson, Cheesman & Co. and others. Prom a judgment for defendants, plaintiffs appeal.</p>

Action by William E. Thompson, as administrator of the estate of John Thompson, deceased, against Benjamin E. Wallace and another. Prom a judgment for plaintiff for $2,000 against said Wallace, he appeals.

<p>Action by the Tincher Motor Car Company and others against the Board of Commissioners of the County of Saint Joseph. From a judgment for plaintiffs, defendant appeals.</p>

<p>Action by Rebecca Hartman against Charles Turner. From a judgment for plaintiff, defendant appeals.</p>

<p>Suit by Valentine Berkey, as guardian of Fannie Rensberger, an insane person, against Jonas Rensberger and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Action by Samuel M. Johnson against the Metropolitan Life Insurance Company. Prom a judgment for plaintiff, defendant appeals.</p>

Suit by Charles Fossler and another against Tacey B. Belk and others. From a decree for plaintiffs, Tacey B. Belk and certain other defendants appeal. For opinion on motion to dismiss appeal, see 42 Ind. App. 480.

<p>1. Removal or Causes. — Diverse Citizenship. — Amount Demanded. —Complaint.—A complaint showing that defendant owes to the plaintiff more than $2,000, but which demands less than $2,000, does not authorize the removal of the cause to the federal court on the ground of diverse citizenship, p. 258.</p> <p>2. Removal oe Causes. — Waiver of Bight. — Proceeding to Trial.— Statutes. — Under the federal act of 1888 (25 Stat. 435, §3, 1 U. S. Comp. Stat. p. 510), providing that a party desiring to remove a cause from the state to the federal court must file his petition “at the time, or any time before the defendant is required by the laws of the State or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” a defendant who makes up the issues, requests a jury trial and tries the ease, waives his right to a removal of the cause to the federal court, p. 258.</p> <p>3. Paktnekship. — Accounting. — Jsfotes. — Complaint.—Amendment. —A suit in equity for an accounting between partners is not changed to an action at law by reason of an amendment to the complaint demanding judgment on a note alleged to have been executed in a settlement of such partnership, especially where the evidence showed that such note was not negotiable, and not amounting, therefore, to a payment of the debt. p. 259.</p> <p>4. Partnership. — Accounting.—Joinder of Action at Law. — Where an action at law on a note is joined with a suit -for an accounting between partners, the whole cause is drawn into equity, p. 2G0.</p> <p>5. Action. — Lato.—Equity.—How^ Determined. — Whether a cause is of legalj or of equitable cognizance, is determined from the general scope and character of the facts and pleadings involved, p. 2G0.</p> <p>G. Pleading. — Complaint. — Amendments.—Variance.—Amendments to a complaint are liberally permitted, even after verdict, where no injustice is occasioned thereby, p. 261.</p> <p>7. Pleading. — Complaint. — Amendments. — Partnership. — Accounting. — Potes.—In a suit by one of two partners for an ac- • counting, it is not prejudicial to permit 'the plaintiff, after the decision is announced, to amend his complaint so as to include a note shown by defendant to have been given in settlement of their partnership affairs, p. 261.</p> <p>S. Appeal. — Right Result. — Where- it affirmatively appears that the trial court reached a right result, the judgment appealed from will be affirmed, p. 262.</p> <p>Prom Huntington Circuit Court; Samuel E. Goolc, Judge.</p>

Suit by Robert B. Tansel, as administrator of the estate of Robert B. Myers, deceased, against Blanche Smith and others. ' Prom a decree for defendants, plaintiff appeals.

<p>Action by David Levine and others against Abraham Gladstein. From a judgment for plaintiff, defendant appeals.</p>

<p>Suit by John Gray against Bertha M. "Washburn. Prom a decree for plaintiff, defendant appeals.</p>

<p>Action by Horace M. Batt against tlie United States Health and Accident Insurance Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by George O. Hoffman and another against Jonathan Isler and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Master and Servant. — Employers’ Liability Act. — Train Dispatcher. — Motorman.—Orders.—Complaint. — A complaint by a motorman of an interurban car, alleging that defendant company’s dispatcher ordered him to operate a certain car as motorman, and that while operating such car he was injured, does not show that he was injured while acting “in obedience to the particular instructions given by any person delegated with the authority in that behalf,” as provided in subdivision three of section one of the enxployers’ liability act (Acts 1893 p. 294, §8017 Burns 1908). p.292.</p> <p>2. Pleading. — Complaint.—Proliwity.—Prolixity does not vitiate a complaint, p. 293.</p> <p>3. Master and Servant. — Defective Appliances. — Knoioledge.— Knowledge by a motorman of defective fuse which he used, precludes a recovery by him for injuries sustained by his use of such fuse. p. 293.</p> <p>4. Pleading. — Complaint.—-Theory.—The theory of a complaint must be determined from its general scope and tenor; and the facts stated may overthrow the complaint on one theory and sustain it on another, p. 293.</p> <p>5. Negligence. — Several Acts of. — Complaint.—A complaint that alleges several acts of negligence, each of which is alleged to be the proximate cause of the injury, is sufficient if one of such acts shows a cause of action, p. 294.</p> <p>6. Negligence. — Elements.—Complaint.—A complaint for negligence must show a duty owing from defendant to plaintiff, a breach of such duty by defendant, and proximately resulting injury to the plaintiff, p. 294.</p> <p>7. Master and Servant. — Railroads.—Safe Appliances. — Inspection. — It is the duty of an interurban railway company to furnish safe equipment for the operation of its cars, and to make reasonable inspection thereof, p. 294.</p> <p>8. Master and Servant. — Assumption of Rislo. — Interurban Railroads. — Latent Dangers. — A motorman assumes the ordinary patent but not latent risks of his employment, p. 294.</p> <p>9. Master and Servant. — Latent Defects. — Interurban Railroads. —Defective Motors. — Complaint.-—A complaint alleging that the defendant interurban railway company’s motor and the wires connected therewith were not properly insulated and were encased and hidden, that the switch was defective and the wires leading therefrom to the motor were hidden, that these defects were known to defendant and unknown to the plaintiff, a motorman, that defendant failed to make a proper inspection, that because of these defects the plaintiff in trying to adjust a fuse was injured, states a cause of action, and warrants a recovery upon proof that any one of such acts was the proximate cause of his injury, p. 295.</p> <p>10. Negligence. — Several Acts Combined. — Recovery.—Where several acts in combination are required to constitute a cause of action, all such acts must be proved in order to warrant a recovery. p. 295.</p> <p>From Wells Circuit Court; Charles E. Sturgis, Judge.</p>

<p>Action by the Wells & Nellegar Company and another against Ezra A. Short. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>Action by Emory M. Hays, as administrator of the estate of Nellie Hays, deceased, against Hattie N. Hays. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Schools. —- Buildings. — Bonds. — Toims.—Statutes.—Specific.— Repeal by Implication. — Section one of the act of 1909 (Acts 1909 p. 100) providing that “in all cities, except cities of the first and second class, * * * and in incorporated towns” the boards of school trustees in such towns may borrow money and issue bonds as such school board may determine upon giving certain notices, impliedly repeals the act of 1907 (Acts 1907 p. 655 §§0556-6559 Bums 190S), providing that school boards-in towns of “less than 5,000,” may contract debts for building school houses when authorized by a resolution of the town board, and also the act of 1907 (Acts 1907 p. 576, §§6565-6570 Bums 1908), providing that the boards of school trustees of towns of “not more than 2,000” may borrow money for building school houses when authorized by a resolution approving it passed by the town board, pp. 304, 306.</p> <p>2. Statutes. — Special. — Subsequent General. — Effect.—A subsequent general statute will not ordinarily repeal by implication a prior special one. p. 305.</p> <p>3. Statutes. — Reenactment.—Prior Limiting Ones. — The reenactment of a former statute does not ordinarily repeal an intermediate limiting one, but such limiting statute will be held to limit the reenacted statute, p. 305.</p> <p>4. Statutes. — Intention.—The intention of a statute should govern in its construction, p. 306.</p> <p>5. Pleading. — Theory.—Complaint.—Striking out Parts. — Where a complaint cannot be made sufficient on the theory upon which it is based, striking out parts thereof is harmless, p. 309.</p> <p>Prom Orange Circuit Court; Thomas B. Buskirk, Judge.</p>

<p>Action by Wood Green against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by James M. Jones against the Deep Vein Coal Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Action by the McParlan Carriage Company against the Connersville Wagon Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Cross-complaint by Louisa Z. Watson against Timothy S. Owen and others. From a decree for cross-complainant, cross-defendant Owen appeals.</p>

<p>1. Appeal. — Assignments of Errors. — Jomt.—An assignment that “the court erred in overruling appellant’s demurrer to the second, third and fourth paragraphs of appellee’s answer,” is joint, and is unavailing if any of the paragraphs is good. p. 326.</p> <p>2. Corporations. — Stocic Subscriptions. — Ansioer.—Payment.—In an action to recover on a stock subscription, an answer that such subscription was paid, is good. ' p. 326.</p> <p>From Fountain Circuit Court; I. E. Schoonover, Judge.</p>

<p>1. Appeal. — Parties.—Where two or more are sued jointly and final judgment is rendered against one only, he alone can appeal therefrom, p. 330.</p> <p>2. Appeal. — Questions Presented. — Demurrer to Complaint. — Exceptions to Conclusions of Law. — Where the exceptions to the conclusions of law present the same questions as the demurrer to the complaint, the court on appeal need only to decide the points raised by such exceptions, p. 330.</p> <p>3. Trial. — Conclusions of Tmio. — Deceptions.—Exceptions to conclusions of law admit, for the purposes of such, exceptions, that only the facts set out in the special findings are correctly found, p. 330.</p> <p>4. Injunction. — County Treasurers. — Collecting Taees. — Duplicates. — Special Findings. — Failure to Find Threats of Collection. —Judicial Notice. — In a suit to restrain a county treasurer from collecting taxes levied against the plaintiff, a special, finding that the duplicate “containing said valuations of property was delivered by said auditor to defendant * * * treasurer of said county, who now has it in his possession,” sufficiently shows that such defendant was threatening to collect such tax, since the court takes judicial notice of such officer’s duty, it being unnecessary to find facts of which the courts take judicial notice, p. 330.</p> <p>5. Trial. — Special Findings. — Conclusions of Lato. — Amendments. —Special findings, or conclusions of law, may be amended at any time before final judgment and during the period within which a bill of exceptions containing the evidence may be filed, p. 331.</p> <p>6. Appeal. — Amending Special Findings and Conclusions of Lato. —Favorable Rulings.- — A party is not harmed by an amendment of the special findings and conclusions of law, made in his favor, p. 332.</p> <p>7. 1’leading. — Motions for Judgment on Certain Paragraphs of Complaint. — A motion for judgment on certain paragraphs of the complaint is not recognized by our code. p. 332.</p> <p>8. Trial. — Conclusions of Lato. — Questioning.—If the facts found do not justify the conclusions of law, an exception to such conclusions presents the question of their correctness, p. 332.</p> <p>9. Judgment. — Motions to Modify. — Office of. — The office of a motion to modify a judgment is to correct some matter of form in such judgment, but not to secure the substitution of a different one. p. 332.</p> <p>10. Injunction. — Taxation.—“Fair Clash Value.” — Special Findings. — In a suit to restrain a county treasurer from collecting certain taxes, a special finding that the plaintiff’s personal property at the times in question was of a “fair cash value,” instead of a “true cash value,” is not prejudicial, §6330 R. S. 18S1 defining “fair cash value” the same as §10197 Burns 1908, Acts 1903 p. 49, §7, defines “true cash value.” p. 332.</p> <p>11. Appeal. — Weighing Evidence. — The Appellate Court will not weigh conflicting evidence, p. 334.</p> <p>Prom Cass Circuit Court; John 8. Lairy, Judge.</p>

<p>Action by Burlie B. Searfoss, by Ms next friend, against John W. Cole. -Prom a judgment for plaintiff, defendant appeals.</p>

Action by Cora M. Tucker against'the Grant Trust and Savings Company, as administrator of the estate of Harvey S. Mark, deceased. Prom a judgment for plaintiff, defendant appeals.

<p>1. Quieting Title. — Complaint.—A complaint alleging that the plaintiff is the owner in fee simple of certain real estate, that defendant claims some interest in such real estate which is adverse to plaintiff’s title, and which is a cloud upon plaintiff’s title, states a cause of action for quieting title, p. 358.</p> <p>2. Quieting Title. — Evidence.—In order to recover in a suit to quiet title, or in an action in ejectment, the plaintiff must show that he is the owner of the property; and he must recover on t¡j.a strength of his own title and not on the weakness of the title of his adversary, p. 35S.</p> <p>3. Deeds. — Conditions Subsequent. — Covenants.—A deed of general warranty conveying land, but containing after the description of the land a provision that “it is especially agreed as a part of the consideration herefor that the real estate above described and hereby conveyed is conveyed for, and shall be used only for, manufacturing purposes,” conveys a fee simple title, such provision constituting a covenant and not a condition subsequent, where the consideration was stated to be “$1 and other good and valuable consideration” and there was no other evidence of the actual consideration, and where there was no evidence that the grantor had other land in the vicinity that would be benefited, pp. 359,362, 364.</p> <p>4. Deeds.' — Conditions Subsequent. — To forfeit an estate a condition subsequent in a deed must be fairly expressed, the presumption being that doubtful clauses in a deed are covenants rather than conditions subsequent, p. 359.</p> <p>5. Deeds. — Conditions Subsequent. — Forfeitures.—If the language in a deed clearly indicates an intention on the part of the grantor that a certain stipulation therein was to be complied with under a penalty of forfeiture, a breach thereof will work a forfeiture, p. 360.</p> <p>6. Deeds. — Covenants.—Conditions Subsequent. — Soio Determined. —In determining whether a clause in a deed constitutes a covenant, or a condition subsequent, the court will first consider the language used, and if it is clear it will control; but if it be ambiguous, the court will consider all the circumstances including the conduct of the parties, pp. 360, 362.</p> <p>7. Deeds. — Conditions Subsequent. — -A clause in a deed providing that a failure to perform its requirements shall render the deed void and that the estate shall be forfeited, constitutes a condition subsequent; but any language clearly indicating such intention is sufficient, p. 360.</p> <p>8. Deeds. — Conditions.—Use of Property — Covenants.—A clause in a deed requiring the property conveyed to be used for a certain purpose, but specifying nothing as to a termination of the estate for a violation thereof, constitutes a covenant and not a condition subsequent, p. 362.</p> <p>9. Deeds. — Conditions Subsequent. — Consideration.—A condition subsequent is more readily implied in a voluntary deed than one based upon a valuable consideration, p. 363.</p> <p>10. Deeds. — Support.—Conditions Subsequent. — Clauses in deeds executed in consideration of the support of the grantors are usually construed as conditions subsequent, p. 366.</p> <p>From Delaware Circuit Court; J. G. Leffler, Judge.</p>

Suit by the Romona Oolitic Stone Company against George A. Weaver and another. Prom a judgment for plaintiff for part of its demand, it appeals.

<p>Action by George W. Jackson against Joseph R. Morgan and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal. — Reversal.—Want of Evidence. — An entire want of evidence tending to support a fact necessary to plaintiff’s recovery requires a reversal of the judgment; but in determining such want of evidence only that favorable to plaintiff will be considered. p. 394.</p> <p>2. New Tbial, — Want of Evidence. — Where the verdict is without evidence to support it, or where the evidence directly contradicts the verdict, a new trial should be granted, p. 394.</p> <p>3. Insurance. — Policy. —■ Conditions. ■— Violations. — Avoidmce.— Where an insurance policy contained a provision that such policy should not take effect unless it was delivered to the'assured while in good health, unless before its date assured had not been attended by a physician for a serious disease, and unless he had not been afflicted with pulmonary disease or chronic bronchitis, and two doctors testified that they treated assured, before the policy was delivered, for tuberculosis, and the beneficiary, as sured’s wife, testified that assured was in sound health when the policy was delivered, that one of such doctors treated assured for typhoid-malaria, and that the other, to her knowledge, did not treat him, such doctor testifying that the treatment was given at the doctor’s office, a verdict for the plaintiff is not supported by the evidence, the defendant having duly tendered back the premiums paid at the first opportunity after knowledge of the facts, p. 395.</p> <p>Prom Superior Court of Allen County; Owen N. Heaion, Judge.</p>

<p>1. Municipal Cobpobations. — Defective Sideioalks. — Imane Persons. — Declarations.—In an action by the guardian of an insane person against a city for damages sustained by such insane person by reason of an alleged defective sidewalk, where a witness for defendant, over plaintiff’s objection, had been asked what such insane person had said to him, at a certain place and time, after a guardian had been appointed, and such witness answered that such insane person said that his attorney wished to see him and that such attorney “thought the trial was all shot to pieces,” the overruling of a motion to strike out such answer on the grounds that it did not tend to prove any issue in the case and that it was spoken while such person was under guardianship, was not erroneous, where one of the issues in the case involved such person’s sanity when he agreed to an alleged settlement of his case shortly prior thereto, p. 399.</p> <p>2. Compbomise. — Declarations Concerning. — Evidence.—Insane Persons. — In an action by the guardian of an insane person for injuries sustained by such person, declarations made by a companion, in the presence of such person, to one of the attorneys for defendant, before an adjudication of insanity, relating to a compromise of his case, are admissible as tending to show the fairness of a compromise subsequently made by him and prior to such adjudication, pp. 400, 401.</p> <p>3. Witnesses. — Competency.—Under §519 Burns 1908, §496 R. S. 1881, providing that “all persons, whether parties to or interested in the suit, shall be competent witnesses * * * except as herein otherwise provided,” competency is the rule and incompetency the exception, p. 401.</p> <p>4. Witnesses. — Competency.—Sow Questioned. — Trial.—Appeal.— Tile objection that a question is “irrelevant and incompetent” does not raise tbe question of tbe competency of the witness, p. 401.</p> <p>5. Compromise. — Evidence Concerning. — Evidence concerning an effort to compromise is ordinarily inadmissible, p. 401.</p> <p>6. Witnesses. — Competency. — Insanity. — In an action by the guardian of an insane person, evidence of his declarations made prior to the guardianship in reference to a compromise of his case, is admissible, where the consideration of such declarations is limited to the question of his sanity at the time of a compromise subsequently made, his sanity at that time being in question, although such insane person was incompetent to testify, p. 402.</p> <p>Prom Boone Circuit Court; Willett H. Parr, Judge.</p>

<p>Action by Marltwood Anderson and another against the Evansville Brewing Association. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>Action by George P. Spiegel against the Evansville and Southern Indiana Traction Company. Prom a judgment on a verdict for plaintiff for $1,363, defendant appeals.</p>

<p>1. Appeal. — Evidence not in Record. — Questions thereon. — Where the Appellate Court’s attention is called to the fact that the evidence is not in the record, it will not determine, questions depending thereon. p. 441.</p> <p>2. Exceptions, Bills oe. — Authentication.—Evidence.—Judges.— Pro Tempore Appointments. — Statutes.—Under §1483 Burns 1908, §1364 R. S. 1881, providing that a judge pro tern, “shall have the same power and authority during the continuance of his appointment as a regularly elected judge,” a judge appointed to serve from June 18 to June 26, inclusive, has no authority after June 26 to sign a bill of exceptions in a case tried by him while acting under such appointment, the regular judge being the proper person to sign such bill. p. 441.</p> <p>3. Municipal Corporations. — Contractors.—Bonds.—Principal md Sureties. — Labor and Materials. — Subrogation.—Parties.—Appeal. —In a suit by a company furnishing labor and materials for a city contractor, against such contractor and its surety, for the value of such labor and materials and praying for an order directing the city officers to deliver over to it sufficient money due from the city to such contractor to satisfy plaintiff’s claim, the surety, in a cross-complaint, asking also for the apiilication of the funds in the custody of such officers to the payment of any amount it might be compelled to pay, such surety may not demand the reversal of a judgment in favor of the plaintiff against such contractor and it for the amount due, merely because the court should also have granted the equitable relief prayed, where the plaintiff was making no objection to the judgment, especially where the contractor had assigned everything to another who had not been made a party, and where such money had already been attached, pp. 443, 447.</p> <p>4. Parties. — Cross-Complaint.—Sureties.—In an action against a contracting company and its surety, such surety, by a cross-complaint, has no right to make a party thereto one who is not a necessary party to the action, in order to litigate cross-complainant’s rights with such party, especially where the plaintiff’s and the cross-complainant’s rights rested upon different instruments. p. 446.</p> <p>Prom Superior Court of Marion County (76,229) ; John L. MoMaster, Judge.</p>

<p>Action by Nicholas Behme against the City of Evansville. Prom a judgment on a verdict for plaintiff for $3,000, defendant appeals.</p>

<p>Suit by Otto 6. Welimeier and others against the Mercantile Banking Company and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. -New Tbial. — Failure of Evidence to Support Special Findings.— Appeal. — Failure of the evidence to support the special findings constitutes no ground for a new trial, such question being raised only under the assignment that the decision is not sustained by sufficient evidence, or that it is contrary to law. p. 465.</p> <p>2. Bills and Notes. — Coverture and Suretyship. — An answer of coverture and suretyship, by a married woman, constitutes a complete defense to an action on a note executed by her. p. 467.</p> <p>3. Bills and Notes. — Answer of Coverture and Suretyship. — Failure to Reply. — Effect.—In an action on a note, there being an answer of coverture and suretyship, the submission of the case for trial, without the filing of a reply, constitutes a waiver of any objection because of such failure, the presumption being that the defendant consented to a trial as if a general denial, but no affirmative reply, had been filed to such answer, p. 467.</p> <p>4. Estoppel. — Pleading.—To secure the benefit of an estoppel, the facts must be affirmatively pleaded, p. 46S.</p> <p>5. Tbial. — Special Findings. — Facts outside the Issues. — Appeal.— Special findings outside the issues will be disregarded on appeal, p. 468,</p> <p>6. Bills and Notes. — Coverture and Suretyship. — Issues.—Special Findings. — Appeal.—In an action on a note, the defense being coverture and suretyship, and no reply being filed, special findings showing that such defense was proved, but showing an estoppel in pais, will not support a judgment for the plaintiff; and such judgment will be reversed because it is contrary to law. p. 468.</p> <p>From Hendricks Circuit Court; James L. Glarh, Judge.</p>

<p>1. Quieting Title. — Gross-Gomplaint.—Allegations as to Title. — > Sufficiency. — Appeal.—A cross-complaint to quiet title, alleging that the cross-complainant was the “owner” of the premises described and asking that his title thereto be quieted, is sufficient, especially when questioned for the first time on appeal, p. 473.</p> <p>2. Quieting Title. — Gross-Gomplaint. — Description. —• A cross-complaint describing the land in dispute as “beginning at the northwest corner of the east half of the southeast quarter of section one, and running thence east 1,350.1 feet; thence south 821.5 feet: thence west 1,351 feet; thence north 811.2 feet to the place of beginning.” sufficiently identifies the land. p. 474.</p> <p>3. Appeal. — Briefs.—Failure to set out Evidence. — Few Trial. — A failure by appellant to set out tlie evidence, or the substance thereof, in his brief, constitutes a waiver of any error in overruling his motion for a new trial, the sufficiency of the evidence to support the special findings and the decision being the only grounds thereof, p. 474.</p> <p>4. Quieting Title. — Nature of Proceedings. — Lwry.—The action to quiet title is statutory (§1110 Burns 1908, §1070 It. S. 1881), and is triable by jury. p. 474.</p> <p>5. Quieting Title. • — • Legal. — Equitable. — Complaint. — GrossGomplaint. — New Trial. — Where plaintiff’s complaint and cross-complaint alleged a legal title to a certain parcel of a certain tract, and defendant’s cross-complaint also alleged a legal title to another parcel of such tract, but the decree was based on their legal rights to such parcels and on their equitable rights to a small residue of such tract, a new trial will be ordered where justice demands, p.474.</p> <p>6. Advekse Possession. — Lapse of Time. — Judicial Notice. — Quieting Title. — Courts take judicial notice that the prescriptive period necessary for the perfection of a title by adverse possession is twenty years, p.475.</p> <p>Prom Randolph Circuit Court; James T. Merryman, Special Judge.</p>

<p>Action by Irving E. Tyner against the Southern Indiana Gas Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not supported by any points, argument, or authority, are waived, pp. 497,499.</p> <p>2. Railroads. — Street Grossings. — Contributory Negligence. — Interrogatories. — In an action against a railroad company for running its cars without warning or signal, over a street crossing, thereby causing plaintiff’s horse to take fright and to injure the plaintiff, an answer to an interrogatory to the jury that if iilaintiff, on . approaching the crossing, had looked, he could have seen the cars when he was twenty-seven feet from the main track, does not, as a matter of law, overthrow a general verdict for the plaintiff, where other answers showed that the plaintiff, when thirty feet from the track vainly stopped, looked and listened for a train, that the train moved at the rate of six miles an hour, and the plaintiff three miles an hour, and that the plaintiff advanced twelve or fourteen feet after he might have seen the cars. p. 497.</p> <p>3. Negligence. — Contributory.—When Question of Fact. — Interrogatories. — Where answers to interrogatories to the jury contain facts of such a character that contributory negligence is the only reasonable conclusion that can he drawn therefrom, the court may so declare; and a general verdict for the plaintiff will be overthrown; otherwise the general verdict must prevail, p.498.</p> <p>4. Negligence. — Contributory.—Close Questions of Time and Distance. — Question for Jury. — Where the question of contributory negligence depends upon close calculations of time or distance, it is one of fact for the jury. p. 499.</p> <p>5. Trial. — :Verdict.—Interrogatories.—Answers to the interrogatories to the jury overthrow a general verdict only when they are in irreconcilable conflict therewith under any evidence admissible within the issues, p. 499.</p> <p>6. Railroads. — Street Crossings. — Complaint.—Allegations of Iiujuries. — Evidence.—Under a complaint alleging that the plaintiff was greatly and severely bruised and injured, that “his back and right hip and body were injured and bruised,” that he “received a severe shock and jolt” and that a “condition of piles with which he was afflicted was greatly aggravated,” evidence is admissible to show that the plaintiff was compelled to undergo an operation for the removal of a fistula, p. 501.</p> <p>7. Damages. — Excessive.—Evidence.—In' estimating damages the jury may consider all admissible evidence relating thereto; and a judgment for $500 cannot be considered excessive, where plaintiff was thrown, severely bruising his body, legs and ankles, and that his ligaments were tom and broken, his hips and body bruised, and an operation for fistula necessitated thereby, p. 502.</p> <p>Prom Randolph Circuit Court; J ames 8. Engle, Judge.</p>

Action by Edmon G. Hall and others, as receivers of the Goodland Bank, against Arthur J. Spinney and another. From a judgment for plaintiffs, defendants appeal.

<p>Action by Oscar W. Bowman against George S. Cook and others. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Action by State of Indiana, on the relation of Jasper Buey, against Charles H. Troy, as auditor of Hancock County. From a judgment for defendant, plaintiff appeals. Transferred to Supreme Court under §1392 Burns 1908.</p>

<p>Petition by Matilda Topp against John Neat. From a judgment for petitioner, defendant appeals.</p>

<p>1. Assault and Battery. — Damages.—Special.—‘Evidence of Employment of Another to Labor. — In an action for damages for assault and battery, the complaint alleging that by reason of the plaintiff's injuries, he was disabled eight weeks and thereby prevented from performing labor or transacting business, it is not erroneous to permit him to testify that he was compelled on account of the injuries to keep a hired mail all winter, the evident purpose being to show the extent of his incapacity to perform labor, and not to prove special damages, p. 517.</p> <p>2. Assault and Battery. — Special Damages. — Complaint.—Evidence. — Where .a complaint for assault and battery does not allege special damages for the employment of additional help because of the alleged injuries, no recovery can be given therefor, and evidence thereof is inadmissible, p. 518.</p> <p>3. Assault and Battery. — Damages.—I temising. — Interrogatories. —In actions of tort, where damages are not specially pleaded, it is improper to require the jury, in its answers to interrogatories, to itemize the elements thereof, p. 518.</p> <p>4. Assault and Battery. — Dam-ages.—Improper Itemising. — Questioning. — Appeal.—In an action for damages for assault and battery, no special damages being pleaded, and an answer to an interrogatory to the jury apparently showing an inclusion in the general verdict, of the sum of $50 expended for extra labor necessitated by injuries received, no question is presented thereon on appeal, where no objection was made because thereof, nor exception reserved, and where no charge of excessive damages was made in the motion for a new trial, and no motion made to modify the judgment, p. 519.</p> <p>5. Appeal. — Saving Questions. — Presentation of Rulings. — Judgment.- — Motions to Modify. — It is the duty of an appellant to show by the record that he presented the matter complained of to the trial court for decision; and where a judgment appealed from is partly valid, it will not be disturbed, where the trial court was not properly asked to modify it. p. 519.</p> <p>6. Appeal. — Presentation of Error. — Presumptions.—It is the duty of an appellant specifically to present error of the trial court in a proper, legal manner, since the court on appeal will not search for errors, every presumption being indulged in favor of the action of the trial court, p. 519.</p> <p>7. New Trial. — Neioly-Discovered Evidence. — Corroborative.— Cumulative. — Impeaching.—A new trial will not be granted on the ground of newly-discovered evidence, where such evidence is merely corroborative, cumulative, or impeaching, p. 519.</p> <p>8. Appeal. — Presentation of Questions. — Neio Trial. — Newly-Discovered Evidence. — Evidence not all in Record-. — The overruling of a motion for a new trial based on newly-discovered evidence, will not be disturbed on appeal, wh’ere the bill of exceptions containing the evidence includes the evidence of only two witnesses and shows that others testified, since the omitted evidence might show the newly-discovered evidence to be merely corroborative, cumulative, or impeaching, p. 520.</p> <p>Prom Jasper Circuit Court; George F. Marvin, Special Judge.</p>

<p>Suit by Jacob Ruby against Martha A. Ewing and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>1. Mechanics’ Liens. — Materials.—Perfecting Lien. — Blements.— To establish a mechanic’s lien on real estate for materials furnished it must be shown that the building erected was authorized by the owner of the land, that the materials were furnished to the contractor to be used, and that they were actually used, in the building, and that the notice of lien was filed within sixty days after the materials were furnished, p. 532.</p> <p>2. Mechanics’ Liens. — Time of Piling TÑotice. — The notice of intention to hold a mechanic’s lien for materials furnished must be filed within sixty days after the. date of the last delivery of such materials to the contractor; and such delivery, actual, or constructive, must be at or near the building, p. 532.</p> <p>8. Mechanics’ Liens. — Materials.—When “Furnished." — Materials, for which a mechanic’s lien can be enforced, are “furnished,” when they are sold and delivered to the contractor, for use in the building in question, under and pursuant to the contract therefor, p. 532.</p> <p>4. Mechanics’ Liens. — Materials.—Time of Furnishing. — Use of.— Where defendant on October 3, furnished materials to the contractor for use in plaintiff’s building and such materials were actually used therein, a notice of mechanic’s lien filed the following January 12, was too late, though such materials were actually used in the building withili sixty days prior to the date of the filing of such notice, p. 533.</p> <p>5. Mechanics’ Liens. — Statutory.—The rights of materialmen to mechanics’ liens are purely statutory; and to enforce such rights, holders must bring themselves within .the terms of the statute, a liberal interpretation being given to such act for some purposes. p. 533.</p> <p>6. Mechanics' Liens. — Subcontractors.—Who Are. — Prior to the act of 1909 (Acts 1909 p. 295), subcontractors had no right to a mechanic’s lien- for materials furnished; but the fact that one person furnished all of the stone for a building, dressed ready for use, does not constitute him a subcontractor, where he does not perform any specific part of the work in the actual construction of the building, with or without the furnishing of materials therefor, p. 534.</p> <p>7. Mechanics’ Liens. — Materials.—When Furnished. — Mistakes.— Where defendant furnished the last of his materials on November 27, his notice of intention to hold a lien, filed the following February 12, is too late, though by the contractor’s error, one piece, which was not used, was not delivered until December 9, and though, through the fault of the architect, two pieces, which were unused, were not delivered until December 17. p. 534.</p> <p>Prom Putnam Circuit Court; John M. Rawley, Judge.</p>

<p>Action by Etta Graham against the Supreme Lodge Knights of Pythias. From a judgment for plaintiff, defendant appeals.</p>

Action by the State of Indiana, on the relation of the Romona Oolitic Stone Company, against the Central States Bridge Company and another. From a judgment for plaintiff, plaintiff appeals.

<p>Suit by Frank Crawford against Flora A. Haddon and another. From a decree for plaintiff, defendants appeal.</p>

<p>1. Master and Servant. — Vice-Principal.—Complaint.—Motion to malte more Specific. — Facts within Knowledge of Defenda/nt.— Where a complaint alleged that a certain person was defendant company’s master mechanic and vice-principal, that he had power to employ servants, that he set the plaintiff to work in a dangerous place, without warning to plaintiff thereof, and that the plaintiff was injured thereby, overruling a motion to make such complaint more specific by setting out more fully the facts relating to the authority, duty and conduct of such alleged vice-principal, is not erroneous, such facts being 'peculiarly within the knowledge of defendant, p. 574.</p> <p>2. Master and Servant. — Safe Place. — Fellow Servants. — Complaint. — A complaint alleging that, without warning plaintiff of any danger, defendant’s master mechanic and vice-principal ordered plaintiff to leave his regular work and to clean out a certain boiler, that other boilers were connected therewith by a pipe, that such pipe contained a valve by which to in'event the steam from entering from the other boilers into plaintiff’s boiler, that plaintiff was ignorant of such valve, and if'he had seen it, would not have known that it was open, that defendant knew such valve was open and that it was dangerous, that' while plaintiff was working in such boiler defendant negligently .turned on the steam into the other boilers, that such steam escaped through such pipe into plaintiffs boiler, severely injuring him, shows that defendant’s negligence was the proximate cause of the injury, that plaintiff was ignorant of the dangers, that no warning was given, and that he war, not injured by a fellow servant, p. 575.</p> <p>3. Master and Servant. — Negligence.—Complaint.—Amendments. —New Cause of Action. — Limitation of Actions. — Where an amended complaint in an action by a servant against his master for negligence, filed after the expiration of two years from the time the cause of action accrued, declares upon a different cause of action than the one stated in the original complaint, an answer that such cause is barred by the statute of limitations is good. p. 576.</p> <p>4. Appeal. — Law of the Case. — The decision, on appeal, constitutes the law of the case as to the points decided, but not as to new points arising at a subsequent trial, p. 576.</p> <p>5. Master and Servant. — Complaint.—Amendments.—Neio Cmise of Action.- — Where the original c-omplaint, in an action by a servant against his master, purported to state a cause of action for a violation of tile employers’ liability act, for negligence in maintaining an unsafe place, for failing to warn of danger, and for defective ways and works, an amended complaint alleging that defendant ordered the plaintiff to cease his regular work and to clean out a boiler, that a pipe connected such boiler with other boilers, that a valve was used to prevent the steam from escaping from other boilers into such boiler, that plaintiff was ignorant of such valve and defendant knew thereof, that defendant failed to warn plaintiff of the dangers of his situation, that defendant turned on the steam into the other boilers and it escaped into the boiler, thereby injuring him, does not state a new cause of action, pp. 576, 578, 581, 583.</p> <p>G. Negligence. — Complaint.—Few Cause of Action. — Additional Facts. — The averment in an amended complaint, of additional facts relating to the same occurrence as set out in an original complaint, does not necessarily signify that a new cause of action is stated, p. 578.</p> <p>7. Limitation oe Actions. — Amended Complaint. — Appeal.— Where a complaint is held insufficient on appeal, the cause of action set out in the amended complaint relates back to the filing of the original complaint, unless a new cause of action is pleaded, p. 580.</p> <p>S. Judgment. — Res Judicata. — Master and Servant. — Complaint.— Paragraphs. — A judgment on a complaint alleging- that the defendant negligently caused injuries to its servant by its violation of the employers’ liability act, by negligence in maintaining an unsafe place, by failing to warn him of dangers, and for defective ways and works, constitutes a bar to another action for the same injury, where the complaint alleges that the injury was caused by transferring the plaintiff from his regular work and causing him to work inside a boiler where he was injured by the turning on of the steam into another boiler and the escape of such steam therefrom through a connecting pipe and an open valve into plaintiff’s boiler, a change in theory, or a change in paragraphs making no difference, p. 582.</p> <p>O. Tbtal. — Verdict.—Interrogatories.—The general verdict constitutes a finding in favor of the successful party on all the issues; and such verdict can be overthrown by the answers to interrogatories only when they are in irreconcilable conflict therewith, p. 583.</p> <p>10. Master and Servant. — Fellow Servants. — Interrogatories.—In an action by a servant against his master, answers to interrogatories to the jury that G. was defendant’s master mechanic and had supervision of the work which he 'ordered plaintiff to do, that it was G’s duty to see that plaintiff’s working place was kept safe, that plaintiff was taken from his regular, less-hazardous employment and ordered to do the work in question, that he did not know of the defects in the works and ways and that G. did, that G. failed to notify him of such defects, or warn him of the dangers, that defendant did not use ordinary care to protect him and could by the use of ordinary care have prevented his injury, nullify any answers tending to show that his injury was caused by the act of a fellow servant, thus leaving in force the general verdict, pp. 584,587.</p> <p>11. Trial. — Reception of Evidence. — Discretion.—Appeal.—Rulings of the trial court in admitting evidence will not be held erroneous, where the admission thereof was discretionary and there was no abuse of such discretion and no harm done to appellant, p. 585.</p> <p>12. New Trial. — Misconduct of Jury. — Conflicting Evidence.- — Appeal. — Alleged misconduct of the jury in reading a newspaper account of a former trial of the pending case is not a sufficient ground for a new trial, where defendant showed no diligence in ascertaining the nature of the article before the return of tbe verdict; and where the trial court upon conflicting evidence on such motion decided against appellant, such decision will not be disturbed on appeal, p. 585.</p> <p>13. Master and Servant .- — Vice-Principals.—Felloio Servants.— Whether a servant occupied a position of vice-principal in relation to an injured servant is determined by ascertaining whether the act, or omission, producing the injury involved a duty owing by the master to the injured servant, and not by difference in rank, or by his power to hire or discharge servants, p. 586.</p> <p>14. Master and Servant. — Viee-Principals.—Felloio Servants.— Where a servant in discharging a masterial duty injures another servant, the master is liable, since such a duty cannot be delegated so as to absolve the master from liability, p,. 586.</p> <p>15. Master and Servant. — Safe Place.- — Defects.—Warning.—It is the master’s duty to provide a safe working place for his employes, and to warn them of latent defects, or hidden dangers, p. 586.</p> <p>16. Master and Servant. — Viee-Prmeipals.—Evidence.—Evidence that defendant failed to provide for plaintiff a safe working place, and to keep it safe while at work and in failing to warn him of latent defects and hidden dangers of the boilers and connecting pipes and valves causing plaintiff’s injuries, shows a violation of a masterial duty- p. 587.</p> <p>17. Corporations. — Employes.—Assumption of Risk. — Corporations act through agents and employes; and such employes assume the ordinary risks of the service, but not those of hidden dangers, or of latent defects, p. 587.</p> <p>18. Master and Servant. — Latent Defects. — 'Where a master is chargeable with notice of latent defects, he is liable for injuries to servants caused thereby, unless he gives warning thereof, p. 587.</p> <p>19. Master and Servant. — Change of Service. — Latent Dmgers.— Concurrent Negligence of Felloto Servant. — Evidence.—Evidence that defendant company’s master mechanic ordered the plaintiff to cease his usual labor of unloading cars and to enter a boiler for the purpose of cleaning it, that while the plaintiff was in such boiler the steam was turned into another boiler connected by an underground pipe with the one in which plaintiff -was working, that the stop-cock in such pipe was left open, that the plaintiff knew nothing thereof and the defendant failed to warn him of such dangers, that the steam escaped through such boiler into the one in which plaintiff was working, to his injury, supports a verdict for the plaintiff, even though the steam was turned on by a fellow servant, such act constituting defendant liable, at least, for concurrent negligence, p. 588.</p> <p>20. Trial. — Instructions.—IIoio Considered. — Where the instructions considered as a whole fully and fairly present the law of the case, the judgment will not be disturbed because of immaterial defects therein, p. 589.</p> <p>Prom Dekalb Circuit Court; Emmet A. Bratton, Judge.</p>

<p>1. Contracts. — Reformation. — Deeds. — “Executed." — Cross-Complaint, — A cross-complaint alleging that cross-complainant “executed” to her mother a warranty deed and that pursuant to a certain contract such deed was to be “delivered” to her mother, is not bad on the ground that if the deed was “executed,” such contract could not affect it, the word “executed,” as used, importing the signing and acknowledgment only, p 591.</p> <p>2. Witnesses. — Attorneys.—Confidential Communications. — Where an attorney, in the presence and at the behest of a mother and her daughter, prepared deeds and a contract to be executed by them, he is a competent witness, in a suit to reform such contract, to testify as to the conversation leading up to the execution of such deeds and contract, p. 592.</p> <p>3. Reformation. — Contracts.—Failure to Express Real Contract.— Mistakes of Law. — Equity will reform a writing so as to express the real intention of the parties to a contract, though the scrivener tried, but failed, to execute it so that their intentions would be carried out. p. 594.</p> <p>Prom Monroe Circuit Court; James B. Wilson, Judge.</p>

<p>1. Townships. — Advisory Boards. ■ — ■ Minutes. — Statutes.—Under §9590 Burns 1908, Acts 1899 p. 150, §1, providing that “the township advisory board shall elect one of its members secretary, who shall record the proceedings thereof * * * which shall be signed before the board adjourns,” the minutes of a meeting held on January 30, and signed on January 31, are irregular, p. 597.</p> <p>2. Officers. — Lucrative.—Township Advisory Boards. — The office of member of a township advisory board is both public and lucrative. p. 597.</p> <p>3. Contracts. — Void.—Public Policy. — Violating Criminal Lav).— Township Advisory Boards. — Under §2423 Burns 1908, Acts 1905 p. 584, §517, making it a crime for any person holding a lucrative public office to be interested in any contract in regard to which he exercises any official jurisdiction, any contract executed in violation of the provisions thereof is void as against public policy, p. 597.</p> <p>4. Townships. — Warrants.-—Validity.—Minutes of Board. — Special Meetings.- — Emergencies.—Where a township advisory board met in special session on January 30, and its minutes dated January 31, recite: “Board met at call of trustee to make refunding orders given by old trustee, and audit orders. * * * One [order] to W. R. Hawkins for the sum of $1,000 due January 30, 1908,” no emergency is shown, as required by §9595 Burns 190S, Acts 1901 p. 415, §1, authorizing the trustee to borrow money in case of an emergency, and the warrant issued under such authority is void. pp. 59S, 600.</p> <p>5. Townships. — Advisory Boards. — Powers.—Notice.—The powers of township advisory boards are statutory, and must be exercised in the manner prescribed; and persons who deal with such boards are chargeable with notice of the extent of the powers granted, p. 599.</p> <p>From Madison Circuit Court; Frank P. Foster, Special Judge.</p>

<p>Suit by Eliza J. Bucher against Newton Cameron, as treasurer of Huntington County. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Quieting Title. — Cancellation.—Lease.—Setting out as Exhibit. —Complaint.—A complaint to quiet title to certain real estate and to cancel a lease thereon need not set out such lease as an exhibit ; and if it is set out, the sufficiency of the complaint must be determined without reference thereto, p. 604.</p> <p>2. Quieting Title. — Cancellation of Lease. — Complaint.—A complaint to quiet title and to cancel a lease, alleging that plaintiff is the owner of the land, that he executed to defendant’s assignor a lease, that such lease was duly assigned to defendant, that one condition thereof required the lessee to sink yearly three wells provided they were paying wells, and one each sixty days thereafter until ten were drilled, that one paying well was sunk and defendant’s assignor iilugged it, and that the lessee wholly abandoned said lease and sunk no other wells on the premises, and that wells on the adjoining lands are being operated and plaintiff’s oil being removed, states a cause of action, p. 604.</p> <p>3. Contracts. — Cfas and Oil Leases. — Abandonment.—Evidence.—■ Special Findings. — Special findings showing that the lessee of land agreed to sink certain wells for gas and oil, and that if gas and oil could be found in paying quantities, to sink other wells, that the lessee sunk one well and found gas in paying quantities but did not explore for oil, but plugged such gas well, that the assignee of the lease never took possession under such lease, that such assignee operated oil wells on adjacent lands and was extracting the oil from plaintiff’s land, sustain a conclusion of law quieting plaintiff’s title and canceling such lease, pp. 604, 606.</p> <p>4. Trial. — Special Findings. — Evidence.—-In determining whether a special finding is supported by the evidence only that most favorable will be considered, p. 606.</p> <p>5. Trial. — Special Findings. — Omissions.—Courts cannot look to the evidence to supply an omission in the special findings; and such omission will be considered as a finding against the party having the burden of proving the omitted fact. p. 606.</p> <p>From Wabash Circuit Court; A. H. Plummer, Judge.</p>

<p>1. Pleading. — Amendments.—Trial courts have much latitude in permitting amendments to pleadings, p. 610.</p> <p>2. Limitation oe Actions. — Amended Complaint. — New Cause of Action. — An amended complaint stating a new cause of action does not relate back to the time of filing the original complaint, where the statute of limitations is answered, but the sufficiency of such cause must be tested as of the date of filing such amended complaint, p. 610.</p> <p>3. Pleading. — Complaint. —■ Amendments. — New Cause. — Test.— Whether a new cause of action is stated in an amended complaint may generally be determined by ascertaining (1) whether the same evidence will support both, (2) whether a judgment on one will constitute a bar to a judgment on the other, (3) whether the same measure of damages will govern both, and (4) whether the same defenses are open to both. p. 610.</p> <p>4. Bills and Notes. — Partnership.—Complaint.—Amendment.— New Cause. — Where an original complaint demanding the recovery from defendants of an alleged sum due from them as a partnership liability, is amended by-dismissing as to one thereof and by declaring on a check issued by the other to the plaintiff in payment of such debt, a new cause of action is stated, p. 611.</p> <p>5. Partnership. — Liability.—Joinder.—Where partners are sued upon a joint liability they can be held, liable only upon proof establishing such joint or partnership' liability; and §594 Burns 1008, §508 It. S. 1881, providing that “judgment may be given for or against one or more of several * * * defendants” cannot be invoked to sustain a judgment against one partner without showing him to be jointly liable as such partner, p. 611.</p> <p>6. Bills and Notes. — Cheeks.—Payment of Partnership Debt.— Evidence. — In an action on a check given by one partner in payment of a partnership debt, it is not necessary to show a partnership liability as against the drawer of the check, p. 611.</p> <p>7. Pleading. — Complaint. — Amendments. — Discretion.—Appeal.— The discretion of the trial courts in permitting amendments is judicial; and if the right is denied or unreasonably abridged the error will not be considered harmless, p. 611.</p> <p>8. Bills and Notes. — Partnership. — Complaint.—Amendments.— The trial court may permit the amendment of a complaint against two defendants on a partnership liability so as to declare against one thereof on a check issued in payment of such liability. p. 612.</p> <p>9. Pleading. — Complaint.—Amendments.—New Cause. — Parties.— Jurisdiction. — Plea in Abatement. — Where a complaint declaring against two parties on a partnership^ liability was dismissed as to one and an amended complaint filed against the other on a check issued in payment of such debt, a.plea in abatement by such defendant that he, at the time of the filing of the amended complaint, was a resident of another county, should be sustained, since the defendant has a right to be sued in his own county. p. 612.</p> <p>10. Appeal. — Obiter.—Where the trial court erroneously sustained a demurrer to a plea in abatement to the jurisdiction, the court, on appeal, cannot determine the merits of the substantive defenses pleaded, since upon a trial of such plea below, the court may not have jurisdiction; and any decision on such defenses would be obiter, p. 612.</p> <p>From Newton Circuit Court; Jas. T. Saunderson, Judge.</p>

<p>1. Pleading. — Complaint. — Essentials. — Statutes. ■— Section 343 Burns 190S, §338 R. S. 1SS1, providing, among other things, that “the complaint shall contain * * * a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended” is the existing law, and furnishes the sole test by which the sufficiency of a complaint should be determined, p. 615.</p> <p>2. Telegraphs and Telephones. — Cross-Arms.—Defects.—Negligence. — Complaint.—A complaint alleging that the plaintiff was employed by defendant telephone company as a cableman, that, at defendant’s request, plaintiff undertook to repair a cable on a cross-arm, that while attempting so to repair such cable the cross-arm upon which plaintiff was working broke and the plaintiff was thrown to the ground, to his injury, that such cross-arm was knotty and defective, and by reason of its being maintained a great number of years it had become further weakened, rotten, and unfit for service, that the defendant had notice of such defects and the plaintiff did not, sufficiently shows that defendant’s negligence was the proximate cause of plaintiff’s injuries, and states a cause of action, p. 617.</p> <p>3. Pleading. — Complaint. — Judicial Notice. — Evidence.—Gravitation. — Courts take judicial notice of the law of gravitation; and an allegation that the cross-arm on which plaintiff was suspended, broke and plaintiff fell to the ground leaves nothing to inference, p. 617.</p> <p>4. Appeal. — Weighing Evidence. — Contributory Negligence. — A verdict that the plaintiff was free from contributory negligence will not be disturbed on appeal, where the evidence thereon was in conflict, p. 617. .</p> <p>5. Master and Servant. — Telephone Cross-Arm. — Defects.—Assumption of Risk. — A telephone tableman going upon a defective cross-arm and falling therefrom when it broke, did not assume the risk of the dangers thereof due to the knotty and rotten condition of such cross-arm, where he was ignorant thereof, the plaintiff not being required to search for latent defects, p. 618.</p> <p>G. Master and Servant. — Safe Place. — A servant may rightfully assume that the places in which, and instrumentalities with which, he is set to work are safe and adequate; and if he sustains injuries in consequence of the employer’s failure to notify him of latent defects or dangers therein, the master is liable, p. CIS.</p> <p>From Hancock Circuit Court; Robert L. Mason, Judge.</p>

<p>1. Principal and Surety. — Payment by Surety. — Recovery.—Implied Contracts.- — Complaint.—A complaint by a surety alleging that he became defendant’s surety on a certain note, that he was compelled to pay a certain balance thereon, that there is due to him from defendant because thereof a certain sum, for which he demands judgment, states a cause of action on the implied contract of the principal to repay; and the setting out of a copy of the note does not make it an action on such note. p. 621.</p> <p>2. Pleading. — Complaint.—Theory.—The theory of a complaint is determined from its general scope, and not by fragmentary parts thereof, p. 621.</p> <p>3. Limitation of Actions. — Nonresidents.—Foreign Statutes.— “Causes of Action Arising without this State.” — Where a surety residing in Indiana was compelled to pay, in this State, his principal’s note executed and payable in this State, such principal at the time of such payment being a citizen of a sister state, a cause of action arose in this State in favor of such surety, and §299 Burns 1908, §297 R. S. 1881, providing that “when a cause of action has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defense here as though it had arisen in this State: provided, that the provisions of this section shall bo construed to apply only to causes of action arising without this state,” does not give the defendant the benefit of a defense based upon the statute of limitations of such sister State, pp. 022, G26.</p> <p>4. Principal and Surety. — Payment by Surety. — Cause of Action. —1-Vhen Arises. — A cause of action arises in favor of a surety against his principal at the time he pays his principal’s obligation. p. 025.</p> <p>5. Principal and Surety. — Payment of Surety. — Rights of Action. —Lex Fori. — Remedies.-—Where a surety is compelled to pay his principal’s debt, he may follow him into the state of the principal’s residence, or he may sue him in this State provided he can obtain service upon him; and the remedy used, except as differently prescribed by statute, will be that of the place where the action is brought, p. 020.</p> <p>O. Appeal. — Mandate.—Death.—Where the appellant dies after submission and before an affirmance of the judgment, such affirmance will be made as of date of submission, p. 026.</p> <p>From Whitley Circuit Court; Luke H. Wrigley, Judge.</p>

Action by Milbert F. Price and Louis E. Lyons, partners, doing business under the name of the Puritan Manufacturing Co., against Harry D. Swartz. From a judgment for defendant, plaintiffs appeal.

Action, by John Gardner against the Miami Coal Company to recover for personal injuries. Prom a judgment for plaintiff, the defendant appeals.

<p>Aetiou by Robert Campbell agaiust Jacob H. C. Smith as executor of the will of Jacob First, deceased. From a judgment for defendant, plaintiff appeals.</p>

<p>Action by Oluey W. Rhillips against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgr ment for plaintiff, defendant appeals.</p>

<p>1. W.vtebs and Watebcoubses. — Diversion.—Complaint.—Negativing Negligence. — In a complaint for diversion of a water course, plaintiff must show that the damage complained of was not caused or contributed to by his own fault or negligence, p. 649.</p> <p>2. Pleading. — Facts.—'Conclusions.—Pacts are to be positively averred and mere recitals or conclusions are insufficient to state material facts, p. 649.</p> <p>3. Pleading. — Construction.-—Presumptions.—Where but one inference can be drawn from facts positively and directly averred they carry with them such other facts as are necessarily inferred from the facts well pleaded, but if the construction is doubtful, the doubt must be resolved against the pleader, p. 649.</p> <p>4. Watebs and Watebcoubses. — Diversion.—Pleading.—Negligence. — Negligence of plaintiff in an action for diversion of a watercourse may be negatived either by general averment or by setting forth facts showing due care. p. 650.</p> <p>5. Watebs and Watebcoubses.- — Damages.—Contributory Negligence. — In an action against a railroad company for damages to adjoining land caused by the negligent obstruction of a watercourse, the complaint must aver that plaintiff was without fault or negligence on his part. p. 650.</p> <p>6. Waters akt> Watercourses. — Statutory Action. — Pleading.— Where a statute is relied upon in ail action for the alleged negligent diversion of water upon plaintiff’s lands, the averments in the complaint should bring the case within its provisions or state facts so fully and directly that the court may see that the facts bring the case under the statute, without indulging in speculation or depending upon doubtful inferences, p. 651.</p> <p>7. Courts. — Rules of Decision. — Decision of Supreme Court. — The Appellate Court is bound by the decisions of the Supreme Court when announced, so Jong as they remain unchanged, p. 652.</p> <p>8. Damages. — Contributory Negligence. — An injured employee who by his own negligence contributes to his injury can not recover, though his employer’s liability is based upon the violation of a positive statute, p. 652.</p> <p>9. Trial. — Verdict.—Apportionment of Damages. — In a case sounding in tort the jury is not required to itemize the damage assessed. p. 653.</p> <p>10. Trial. — Special Interrogatories. — Form.—A special interrogatory should call for an answer stating a single inferential and issuable fact, as distinguished from a mere evidentiary fact, p. 653.</p> <p>Prom Ohio Circuit Court; George E. Downey, Judge.</p>

<p>Suit by Julia T. Brennan and Bernard T. Brennan against Henry Newhaus, Kajetan J. Bauer and German American National Bank. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Teoveb and Conversion. — Complaint.—Requisites.—Allegation of Ownership. — In an action for conversion the complaint must allege that the plaintiff had either a general or special ownership of the property converted at the time of the alleged conversion. p. 660.</p> <p>2. Trover and Conversion. — Complaint.—Allegation of Bailment. —Ownership of Property. — Where it appears from the averments of the complaint that the defendant at the time of the alleged conversion, held the property under a contract of bailment entered into between him and the plaintiff, an allegation as to the ownership by the plaintiff at the time of the bailment is unnecessary. p. 660.</p> <p>3. Bailment. — Title of Bailor. — Estoppel against Bailee. — A bailee is estopped to deny the bailor’s title or ownership of the property bailed at the time of the bailment but is not estopped when sued for conversion, from showing that the title held by the bailor at the time of the bailment has been acquired by himself, or has passed to another, p. 661.</p> <p>4. Troves and Conversion. — Title to Property. — In an action to recover the value of personal property converted, the title thereto is always in issue, p. 662.</p> <p>5. Trover and Contorsión. — Complaint.—Sufficiency.—That a complaint shows that at the time of alleged conversion defendant held the property under a contract of bailment with plaintiff does not obviate the necessity of alleging ownership of the property by plaintiff at the time of the conversion, p. 662.</p> <p>6. Pleading. — Aider l)y Inference. — A material fact will not be inferred in aid of a pleading unless such fact is a necessary inference from the other facts pleaded and the only inference that can be drawn therefrom, p. 663.</p> <p>Prom Marion Circuit Court; Charles Remster, Judge.</p>

<p>Suit by Fred Hoffman against Samuel T. Zollman, Anna C. Zollman, Meda Blackwell and Milton G-. Blackwell. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Action by John R. Stiegelmeyer against John Edward Stiegelmeyer, Automatic Train Control Company, William E. Hayward, Orion W. Beckwith, Charles H. Peirce, Carey L. Smith, Fred L. Schaub, Charles E. Anderegg and Indiana Trust Company. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Action by John A. Newby against the City of Logansport. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by Thomas McGruder against William Henderson. From- a judgment for plaintiff, the defendant appeals.</p>

<p>Action by Burton B. Porter against tbe Grand Trunk Western Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Action by Harry L. Roberts against James Johnson and another. From a judgment for plaintiff, the defendant appeals.</p>

<p>Action by the Postal Telegraph-Cable Company of Indiana against the Chicago, Lake Shore and South Bend Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Laporte Superior Court, Harry B. Tuthill, Judge.</p>