Volume 5 — Indiana Appellate Court Reports

<p>Damages. — Excessive.—Must be Assigned as a Cause for a New Trial. — If the damages are excessive it is cause for a new trial; but unless so assigned it is not available on appeal.</p> <p>Chattel Mortgage. — Indefinite Description. — Parol Evidence to Aid.— Where it was impossible to tell from the description to which of two boilers the description applied, parol evidence was admissible to identify the property actually mortgaged.</p>

<p>From the Owen Circuit Court.</p>

<p>From, the Benton Circuit Court.</p>

<p>From the Fulton Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>From the St. Joseph Circuit Court.</p>

<p>New Trial. — Motion for.— Objection to Statements of Counsel to Jury. — No Exceptions Taken to Action of Court. — Where opposing counsel objected to statements made in the course of argument, but there was no exception taken to the action of the court in relation thereto, a motion for a new trial based upon such statements and action of the court was properly overruled.</p> <p>Jury. — Challenge for Cause. — Overruling of.— When not Error. — There is no error in overruling a challenge to one called as a juror, based upon the ground that such person occupied the same rooms as an office which were occupied by opposing counsel.</p> <p>Practice.' — Deposition.—Sustaining Motion to Strike Out. — Harmless Error.— Where error is assigned because of the sustaining of a motion by the court to strike out certain parts of a deposition, and the bill of exceptions shows in one place that a motion to strike out such parts of the deposition was sustained, and in another place that such parts, with all the other parts of the deposition, were read in evidence to the jury, there is nothing to show that such ruling worked any harm, and it is, therefore, no ground for a reversal, even if wrong.</p> <p>New Trial. — Motion for. — Newly-Discovered Evidence.— What Motion Musi Show —An application for a new trial on the ground of newly-discovered evidence is not regarded with favor, and to be available the appellant must show to the court that he used due diligence to discover the evidence in time to use it on the trial, and a mere statement that such diligence was exercised is not sufficient, but he must set forth facts constituting it.</p> <p>Same. — Statements Made by Witness After Tñal not Ground for New Trial.— Statements made by one of appellee’s witnesses after trial to the effect that he had received money for testifying in the case is not sufficient ground for a new trial.</p>

<p>Damages.— Breach of Contract.— Complaint.— Sufficiency of.— Measure of Damagees. — In an action for breach of contract, a complaint which states facts sufficient to entitle the plaintiff to nominal damages is sufficient to withstand a demurrer, and the measure of damages is the difference between the actual cost and the contract price.</p> <p>New Tbial. — Newly-Discovered Evidence.— When Sufficient Ground fora New Trial. — Newly-discovered evidence, to be a ground for a new trial, must be such as could not with reasonable diligence have been produced in the previous trial, and must not be cumulative evidence.</p>

<p>Attobney and Client. — Railroad.—Action Against for Legal Services.— Annual Pass.— When not Compensation. — Where the plaintiff, an attorney; rendered legal services for the defendant railway corporation during a certain year, he is entitled to recover for the value of the same, notwithstanding the fact that during said period the defendant company carried the plaintiff on its said railroad free of charge on an annual pass issued to him by the receiver of the company.</p> <p>Same. — Where a railroad company sent the plaintiff an annual pass as compensation for the legal services he might render the company in his county during “ the current year ” (1885), and the pass was accepted upon the terms stated, the plaintiff may, nevertheless, recover for the value of his services in a case in which he was employed by the general counsel of the company, who stated to him that the case was a very important one, and that while the company could not pay large fees it ought to pay plaintiff a reasonable fee for defending the suit, to which plaintiff replied that he would help to defend the case and would leave the matter of his compensation to his colleague in the case and to the general counsel of the company, and the general counsel replied that there would be no trouble about that, and for him to go ahead and hunt up the evidence, etc.</p> <p>Same. — The plaintiff accepted a pass from defendant company for the year 1886 upon the same terms as those set forth in the preceding paragraph. In the latter part of the year he notified B., who was in the employ of the general counsel of the company, and intrusted with the matter of the employment of counsel for the company in the various counties of Indiana, that he would not do any more work for the company for a free pass, and B. remarked that the new management proposed to pay attorneys for the work they did. In January of 1887 the plaintiff wrote to the general counsel of the company that if they desired to retain his services to please renew his pass. In reply they sent him a pass, stating that it was to compensate him for such incidental work as he might be called upon to render for the company that year, and that for work requiring greater labor they would make such allowance as they deemed reasonable. The pass was accepted and used by the plaintiff.</p> <p>Held, that the services of the plaintiff in certain litigated cases in the latter part of 1886, and during the year 1887, were not compensated for by the pass issued to him during these years by the company.</p> <p>Same. — Demand Before Action.— When Unnecessary. — "Where the general counsel of the company were to make such allowance for the legal services of the plaintiff in the year 1887 as they might deem reasonable, but the company for more than a year before the bringing of the suit disclaimed all liability to the plaintiff on account of such services, it was not necessary that the plaintiff should make a demand on the general counsel for an allowance for his services before instituting his action.</p> <p>Practice. — Bill of Exceptions.— When Evidence not Properly Certified. — Appeal. — Where a judge fails to certify in a bill of exceptions that “ this was all the evidence given in the cause,” no question is presented on appeal which depends for its determination upon the evidence introduced in the cause.</p>

<p>Master and Servant.— Injury to Minor. — Dangerous Machine.— Complaint. — Contributory Negligence. — In an action to recover for personal injuries alleged to have been sustained by a minor, the complaint averred that the plaintiff, a lad of sixteen, was required by the defendants, against his will, to operate a dangerous machine, viz., a planer, with rapidly revolving and uncovered knives; that he had no knowledge of the dangers and hazards of said machine; that the defendants were fully acquainted with the dangers incident to the operation of the machine, but failed to inform the plaintiff thereof; that while he was trying to cleanse the shavings from in front of the knives in said machine, and to oil the part of the same in front of said knives, so he could insert the planks therein, his hand was drawn into the machine and three of his fingers cut off.</p> <p>Held, that the averments were sufficient to overcome any presumption of negligence that might arise from the fact of the plaintiff’s placing his hand so dangerously near the planer while it was in motion. Atlas Engine Works v. Eandall, 100 Ind. 293, distinguished.</p> <p>Same. — Contributory Negligence. — Answers to Interrogatories Establishing.— Where in such an action the jury found in their answers to interrogatories that the plaintiff was a bright, intelligent boy, 16 years of age ; that he had knowledge of the dangerous condition of the machine he was operating, and knew that he must be careful in order to avoid injury ; that he had received some instruction and caution from the defendants as to the use of the machine and its hazards, though not as much as they should have imparted to him ; that he was hurt while wiping the platform of the machine in front of the revolving knives; that it was not necessary for him to do this in the performance’of his duty in operating the machine; that he knew how to stop .the machine, and could easily have done so, and that he was not ordered or directed by the defendants to do the work in which he was so engaged when his fingers came in contact with the revolving knives, the answers show such contributory negligence on the part of the plaintiff that a general verdict in his favor must be set aside.</p> <p>Practice. — Judgment upon Special Finding.— When will not be Ordered.— Where the court is satisfied,from the record that injustice would result by ordering a judgment upon the special finding or verdict, it is its duty to remand the cause, with directions to grant a new trial.</p>

<p>From the Hendricks Circuit Court.</p>

<p>From the Fountain Circuit Court.</p>

<p>Costs. — Independent Judgment for. — Not a Debt Founded Upon Gontract— Sight of Exemption Against. — The right of exemption does not exist against an execution issued upon a judgment for costs in favor of the defendant against an unsuccessful plaintiff in an action founded upon or growing out of a contract. Where costs are recovered independent of any other judgment, they do not constitute a debt founded upon contract. While the judgment for costs in the case at bar may be an incident to a suit upon contract, the law does not permit the right of exemption against such a judgment.</p>

<p>From the Bartholomew Circuit Court.</p>

<p>Pleading. — Demurrer.—•Improper in Form, but Sustained to Insufficient Pleading. — The sustaining of an improper demurrer to an improper answer is not available error.</p> <p>-Slandeb. — Pleading, Matters in Mitigation. — Matters in mitigation may be given in evidence under the general denial.</p> <p>Same.— Words Imputing Crime. — Presumption of Malice Not Conclusive. — Where the slanderous words, alleged in the complaint to have been spoken, charge or impute a crime, it is error to instruct the jury that “ the law conclusively presumes, from the falsity of the words, that they were spoken maliciously.”</p> <p>Same. — Malice in Law and Malice in Fact Defined. — Malice in law is the malice which is inferred from the doing a wrongful act without lawful justification or excuse; while malice in fact differs from the former in that it must be proved expressly, while malice in law is inferred, from the publication of the false language.</p> <p>Same. — Malice in Law, Rebutting Presumption of. — The presumption of malice in law may be rebutted by evidence.</p> <p>Same. — Justification, How Pleaded. — Evidence to Rebut Malice. — A defense setting up a legal excuse for the publication of slanderous words must be specially pleaded, though evidence tending to rebut malice may be given under the general issue in mitigation of damages.</p> <p>Instructions to Jury. — Jnconsistency, Confusion as to the Lato. — If instruc- ■ tions are inconsistent and tend to confusion as to the law, the case will be reversed.</p>

<p>From the Marion Circuit Court.</p>

<p>From the Cass Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>Decedent’s Estate. — Claim Against. — Submission of on Agreed Statement of Facts. — Section 532, E. S. 1881, which provides for the.submission of a matter in controversy upon an agreed statement of facts, does not apply to claims filed against a decedent’s estate. The filing and allowance of such claims are governed by special statute, and jurisdiction can only be acquired in the manner pointed out in the act concerning decedents’ estates. Elliott’s Supp., sections 385 and 387.</p> <p>Same. — Release of Vendor’s Lien. — Consideration.—Qifl inter maos. — A father devised real estate to his son, subject to certain conditions, one of which was that he would pay to his father and mother, or at the death of either, to the survivor, a certain sum of money per year, and board and house room while they lived. The father died, and the mother executed to the son a quitclaim deed to the land, in consideration of which he executed to his mother a written contract, by which he agreed to pay her a less sum per year than she was allowed by will, and board during her natural life, she agreeing to release the land from any lien thereon for the purchase-money named in the contract, and that the new contract should be no lien on the same. The son then gave his mother his note for the money due her under the will and contract. After the son’s death a claim was filed against his estate on the note so given by him to his mother.</p> <p>Held, that there was no release of any lien for the remainder of the purchase-money covered by the note, and which had accrued at the time the contract was entered into, and that the court did not err in decreeing a vendor’s lien for the amount of the note.</p> <p>Held, also, that if there was an attempted release, the same was without consideration, and void, or voidable, as to the promisor, it being based upon a promise to pay a portion simply of what was already due from the decedent to his mother.</p> <p>Held, also, that if it was claimed that the release of the lien and the acceptance of the smaller sum annually by the mother was a gift inter vivos from her to her son, the burden of proof would be upon his estate to establish that fact, and, considering the advanced age of the mother, and the confidential relations existing between mother and son, and all the circumstances, the court had a right to conclude that the transaction was tainted with undue influence, if not with fraud, and that where such a finding is made, although the facts are agreed upon in writing, the conclusion of the lower court will not be disturbed on appeal. Practice. — •Agreed Statement of Facts. — Not a Special Finding. — An agreed statement of facts can not be regarded as a special finding, and an exception to a conclusion of law based thereon will avail a party nothing.</p>

<p>Practice. — Bill of Exceptions. — Motion to Make More Specific. — How Brought into Record. — Where a bill of exceptions relating to the ruling of the court in overruling a motion to make the complaint more specific was filed, but it did not contain the motion, and it was stated in the bill that the motion was in writing and filed in open court, and reference was made to certain pages of the transcript, on which pages the motion ■appeared, no question on such ruling was presented on appeal. A motion to make a complaint more specific must be brought into the record by bill of exceptions or by special order of the court.</p> <p>Railroad. — Action for Personal Injuries. — ■Complaint.— Contributory Negligence. — In an action against a railroad company to recover for personal injuries, the complaint alleged that the plaintiff was driving in the night-time along a public highway which crossed the defendant’s railroad ; that a train of the defendant was backed toward and over said crossing, and the defendant carelessly and negligently omitted while approaching said crossing to give any signal by bell or whistle, or otherwise; that before crossing the railroad track the plaintiff stopped and listened, but on account of the negligence of the defendant, he neither saw nor heard any train approaching; and that the accident occurred without any fault or negligence on his part.</p> <p>Held, that the complaint showed that the plaintiff was not guilty of contributory negligence.</p> <p>Same. — Section JD20, B. S. 1881, Construed. — Statutory Signals at Highway Crossing.— When Inapplicable. — Section 4020, R. S. 1881, providing what signals shall be given when a locomotive engine approaches a highway crossing, is not applicable by its terms to a train of cars without an engine. Those in charge of such a train, however, will not be relieved from the obligation to take such other proper precaution, as the circumstances require, to avoid injury.</p> <p>Same. — Train Without Engine Passing over Highway Crossing. — Negligence.— Instructions to Jury. — Whether it is negligence to detach cars from a train and to permit them to proceed along the track and over a highway crossing without an engine attached, must depend upon the circumstances of the particular case. The facts may be of such a character, shown by undisputed evidence, that the conduct of the company may be said to be negligent per se, but usually it will be a question for the jury under proper instructions.</p> <p>Same. — Becmiery upon Erroneous Theory. — Where an action against a railroad company for personal injuries received at a highway crossing from collision with a train of cars without an engine, was tried upon the theory that -the action was based upon the negligent omission of the statutory signals alone, which the defendant was not required to give, it can not be concluded that the jury found for the plaintiff on the ground that the defendant was chargeable with some other negligence, and a verdict in his favor must be set aside.</p>

<p>From the Tipton Circuit Court.</p>

<p>Bastardy. — Evidence of Intercourse With Other Men.— When Inadmissible.— Where in a prosecution for bastardy,it was proved without any contradiction that the child was born on the 15th of January, a fully developed nine-months’ child, it was error to permit evidence to be introduced to show that the relatrix had had sexual intercourse with men other than the defendant in the latter part of the preceding May. Such evidence must be confined to about the time when the child was begotten.</p>

<p>From the Vermillion Circuit Court.</p>

<p>From the Floyd Circuit Court.</p>

<p>Deceit. — Action for. — False Representations Goncerning Soundness of Horse. —Evidence.-—The defendant bartered a horse to the plaintiff, representing that some time prior to the sale “ a rectal tumor, caused by the bursting of a small blood vessel, had been removed,” but that the horse had recovered from this and was “ as sound as ever.” The evidence clearly disclosed that the horse was not sound; that the “ rectal tumor” resulted from a virulent constitutional disease, which rendered the horse practically valueless, and from which he soon after died, and that the defendant knew, or ought to have known, the horse was unsound at the time he parted with him. The plaintiff purchased the horse, relying upon the representation as to its soundness and believing the same to be true.</p> <p>Held, that the plaintiff was entitled to recover in an action for deceit. Same. — Instruction to Jury. — An instruction to the jury in such an action was correct, which informed them that they should use their “ own judgment ” in determining whether they would, from all the facts and circumstances proven in the case, infer that the defendant was guilty of the fraudulent conduct charged against him. Densmore v. State, 67 Ind. 306, and Wright v. Slate, 69 Ind. 163, distinguished.</p>

<p>Bill of Exceptions. — Date of Presentation to Judge. — Must be Stated in Bill. —Evidence.—Where a motion for a new trial was overruled on December 27th, and sixty days were granted to file a bill of exceptions containing the evidence, and the bill was signed and approved by the judge on the 28th day of the following March, and filed with the clerk on. April 1st, but it did not appear in the bill when it was presented to the judge, although it was stated on the margin of the transcript, under the judge’s signature, that it was presented to him on February 20th, the evidence was not properly in the record. Section 629, R. S. 1881, requires that “ the date of the presentation shall be stated in the bill of exceptions.</p>

<p>From the Adams Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Master and Servant. — Action for Personal Injuries. — Defective Passage- Way in Mine. — Contributory Negligence. — Complaint.—Knowledge of Defect. — In an action by a coal miner against the company employing him to recover damages for injuries sustained by the falling of a large piece of slate upon him from the roof of an entry or passage-way through which he was passing, it appeared from the complaint that the plaintiff passed through the entry where the injury occurred when the passage was unlighted, and so dark that he could not see its condition, without providing any light for himself, and knowing that none had been provided by the company. The complaint further averred that the plaintiff was without fault.</p> <p>Held., that it did not appear from the complaint that the plaintiff was chargeable with contributory negligence.</p> <p>Held, also, that it was sufficient to allege that the plaintiff had no knowledge of the defect without alleging facts to show affirmatively that he had no means of ascertaining the defect.</p> <p>Same. — Safe Premises for Work. — Employee’s Duly as to Inspection. — One who is engaged as a coal miner, to dig out coal in a mine, has a right to assume, in the absence of apparent defects, that a passageway provided in the mine by his employer, through which it is necessary for the employee to pass in going to and from his working place in the mine, has been constructed and is maintained with such skill, prudence and caution that it is safe for such use; and he is not bound to inspect it, or to search therein, for the purpose of discovering latent and hidden defects which render it dangerous for such use.</p>

<p>From the Greene Circuit Court.</p>

<p>From the Grant Circuit Court.</p>

<p>From the Daviess Circuit Court.</p>

<p>Bill oe Exceptions. — Filing of After Term. — Motion to Strike Out. — 'When Not Properly in Record. — The defendant filed a motion to strike out the plaintiff’s claim, which motion was overruled. An entry was made in the record, as follows : “ To which ruling of the court defendant excepts, and time is given to prepare and file his bill of exceptions.” At a subsequent term of court the cause was tried and the defendant’s motion for a new trial overruled, and time given to file a bill of exceptions. A bill of exceptions was filed thereafter, containing, among other things the defendant’s motion to strike out the claim and the proceedings relating thereto.</p> <p>Held, that, as the record entry concerning the motion to strike out showed that when the ruling was made thereon time was given to prepare and file a bill of exceptions, hut failed to show what time was given or that any definite period extending beyond the term was given, a bill presented after the term could not save the exception. See section 629, B. S 1881.</p> <p>Held, also, that a bill of exceptions filed after the term at which the trial was had and at which the motion for a new trial was overruled, under the leave given when a new trial was refused, could not properly embrace a ruling made at a previous term on a motion to strike out the plaintiff’s claim.</p> <p>Statute of Frauds. — Parol Agreement to Convey Real Estate. — Services Rendered Thereunder. — Recovery on Quantum. Meruit. — While a parol agreement by S. to convey a piece of real estate to L. at the end of one year if she would come to his house and take charge of his property and look after it and care for him while sick, etc., is within the statute of frauds and non-enforceable, nevertheless when valuable services are rendered pursuant to such a contract, the party rendering them is entitled to recover on the quantum meruit.</p>

<p>From the Steuben Circuit Court.</p>

<p>Municipal Cobpobation. — Action Against for Personal Injuries. — Defective Sidewall. — Answers to Interrogatories. — General Verdict. — The plaintiff brought suit against a town for personal injuries occasioned by a hole in a culvert. She alleged in her complaint that the sidewalk had been defective for more than two weeks prior to the accident, and that the defendant had knowledge thereof. A general verdict was returned for the plaintiff, but the jury, in answer to interrogatories submitted to’ them, found that the hole complained of had only existed about four hours before the accident occurred, and that the only officer of the town who had knowledge of its existence was the town trustee, and that h§ only knew of it two hours before the accident.</p> <p>Held, that it was error to allow judgment in favor of the defendant upon the interrogatories, as the town authorities may have been guilty of negligence notwithstanding the answers to interrogatories.</p> <p>Held, also, that while ordinarily it would be the proper practice to order judgment in favor of the plaintiff upon the general verdict, yet, in view of the absence of the evidence from the record, and, the improbability of the defendant’s negligence, the case should be retried.</p> <p>Black, J., dissents, holding that judgment should be entered in favor of the plaintiff upon the general verdict.</p>

<p>Contbact. — Construction of. — Certainty as to Subject-Matter. — Complaint.— The plaintiff purchased of the defendant “ the large cottonwood and sycamore trees on the Kentucky side of Diamond Island,' the logs to be measured on the bank of the river.” In pursuance of said contract, 300,000 feet of logs were cut and measured by the plaintiff, for which he paid the defendant the price agreed upon. The defendant then forbade the plaintiff to cut the remaining trees, and sold the same to other persons. The plaintiff instituted an action for damages for the breach of the contract.</p> <p>Meld, that'the contract was sufficiently definite and certain as to the subject-matter upon which it was to operate to be the basis of such an action for damages, without the averment of extrinsic matter in the complaint.</p>

<p>From the Elkhart Circuit Court.</p>

<p>Gdabdian and Wabd.. — Board of Infant. — Contract for by Mother Who is also Guardian. — Personal Liability of Mother. — Where a mother, who is also guardian of her infant son, engages hoard for him, she becomes liable for the payment thereof personally and not as guardian. Under our code there is no such thing as filing a claim against a guardianship or against the estate of a ward.</p> <p>Same. — Original Undertaking. — Suretyship.—Married Woman. — Such a contract for board is not a contract of suretyship, but an original undertaking, and a married woman may be bound thereby. The fact that she stated that she would “stand good ” for the board of her son would not imply a guaranty or suretyship. One may “ stand good ” for a debt of his own or for goods which he may purchase for another, and yet be the original and only obligor.</p> <p>Peactice. — Judgment Non Obstante. — There must be a direct and irreconcilable conflict between the general verdict and answers to interrogatories before the court will be warranted in sustaining a motion for a judgment non obstante.</p>

<p>From the Blackford Circuit Court.</p>

<p>Injunction. — Action on Undertaking. — Complaint.—Demurrer.—In an action on an undertaking to pay the defendant in an injunction suit all his damages and costs accruing by reason of the injunction or restraining order if the injunction should not be sustained, the sufficiency of the complaint can not be raised by a demurrer not addressed to the complaint but to the assumed breaches set forth therein.</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Boone Circuit Court.</p>

<p>Practice. — Christian Name of Plaintiff Must Appear in Pleadings. — Demurrer. — Where the Christian names of the plaintiffs do not appear in any of the pleadings in the case, and the defect is not cured in any manner, the complaint is bad on demurrer. The first subdivision of section 338, B. S. 1881, requiring that the complaint shall contain “ the title of the cause, specifying the name of the court in which the action is brought, and the names of the parties to the action, plaintiff and defendant,” requires that the Christian names of the parties, and not merely their initials, should be given.</p> <p>Promissory Note. — Action by Endorsee Against Maher. — Endorsement Need not be Averred in Complaint.- — -In an action brought by an endorsee against the makers of a promissory note, the note, and not the endorsement, is the contract constituting the cause of action. It is sufficient to aver in the complaint that the note was endorsed by the payee to the holder, without setting forth the endorsement.</p> <p>Same— When Note Need not be Given in Evidence. — In such an action, where the general issue was not tendered by the defendants, and there was evidence given that the plaintiff was the bona fide holder and owner of the note, and the endorser was made a party defendant to the action, it was not necessary for the plaintiffs to give the note in evidence.</p> <p>Evidence.— Written Instrument.— When Parol Evidence of Inadmissible.— Where a written instrument was deposited with one who testified as a witness, and he stated that he had deposited it in a certain place; that lie had looked for it but did -not find it; that he “ may have looked it over some way,” parol evidence was not admissible to prove its contents. Before such evidence can be introduced there must be proof in addition to the loss that a diligent but unsuccessful search was made for the instrument in all places where it was likely to be. In the ease at bar the loss of the instrument was not sufficiently shown ; neither did it appear that a proper search had been made for it.</p>

<p>Replevin. — Form of Verdict. — Alternative Judgment. — Under the statute a party bringing an action for the recovery of personal property may, if the proper affidavit is made and bond filed, have delivery of the property before trial, or he may waive such delivery in the first instance, and rely upon a successful termination of the action, in which case he will recover a judgment for the subsequent delivery of the property to him. In either case, however, it is the duty of the jury to fix the value of the property and assess the damages sustained by the detention. The jury having done this, it becomes the duty of the court to render judgment in the alternative “ for the delivery of the property, or the value thereof in case delivery can not be had, and damages for the detention.” See sections 549 and 572, R. S. 1881.</p> <p>Same.— Usable Animal. — ■Measure of Damages. — In an action of replevin for the recovery of a horse, the measure of damages for the detention thereof is the value of the use of the animal during the entire period of detention.</p> <p>Same. — Excessive Damages.— What are not. — Where the jury in an action of replevin found the value of the horse to be $115, and that the damages for its detention for about two years were $150, the verdict (there being evidence to support it) will not he disturbed, as it can not be said to be so grossly excessive as to appear- outrageous at first blush.</p>

<p>From the Allen Circuit Court.</p>

<p>Landlord and Tenant. — Action for Possession. — Institution of Before Justice of Peace. — Title to Land. — Insufficiency of Plea in Abatement. — In an action instituted before a justice of the peace for the recovery of leased premises, a plea in abatement which averred that the title to said premises was involved; “ that the defendant purchased said lot of D. on the -day of September, 1890, for $1,300; ” that he had made a payment of purchase-money on said lot and that he was not a tenant of the plaintiff, but claimed said lot by right.of purchase, did not put the title to the land in issue, as it did not show when the alleged purchase was made, whether before or after the tenancy, or whether or not the defendant had purchased the land of the plaintiff, or if the vendor was not the landlord it does not appear whether the vendor’s title was paramount to that of the landlord, or was derived from the landlord, or that the vendor had any title, and neither does it allege a conveyance.</p>

<p>Surety oe The Peace. — Proceeding Before Justice.— Waiving of Trial.— Effect of. — Although section 1609, B. S. 1881, concerning “surety of the peace ” proceedings, provides for the issue to be tried and determined ' by the justice or jury, and section 1610 provides that if the justice or jury shall find that the affiant has just cause to entertain the fears expressed the person complained of shall enter into a bond, etc., yet if the defendant expressly waives a trial and furnishes bond for his appearance at the circuit court he can not be heard to complain because he was not tried in order that the “justice or jury” might ascertain whether the things he had confessed were true or not.</p> <p>Same. — Appeal to Circuit Court. — Defective Judgment. — Collateral Attach— Where, in a surety of the peace proceeding, upon appeal to the circuit court, the defendant was found “ guilty as charged in the affidavit,” and ordered to enter into a bond to keep the peace “ for the period of one year,” the form of the judgment, although defective and irregular (see section 1612, B. S. 1881), can not be successfully attacked in a collateral proceeding. The defendant having made no objection to the form of the judgment at the time, and having acquiesced in it and performed the order of the court, he thereby waived all objection thereto and can not thereafter assail it collaterally.</p> <p>Same. — Issue to be Tried. — Scope of Judgment. — The issue to be tried in a “surety of the peace proceeding” is not the guilt or innocence of the de" fendant, but whether the complaining witness has just cause to entertain the fears expressed in his affidavit. The court is not authorized to inflict any immediate punishment upon the defendant. He can only be required to furnish a proper guaranty for good behavior for a determinate period.</p>

<p>Conveyance. — Covenants Against Encumbrance Suffered by Grantors. — Not Applicable to Lien for Taxes. — Where a covenant in a deed limited the liability of the grantors to encumbrances which resulted from acts o£ theirs or things suffered by them, taxes which were a lien upon the realty at the date of the conveyance, though not payable until later, do not constitute an encumbrance within the scope of that covenant. An encumbrance upon property, suffered by the grantor, means one within his power and duty to have avoided. “ Suffer ” in that connection, implies responsible control, and it can not be held to apply to a thing not caused by the act of the party nor within his power to prevent, nor to a lien which he is under no personal obligation to discharge.</p>

<p>Husband and Wine. — Conveyance by Wife — Agreement of Husband to Convey Land to Wife in Lieu Thereof.— Validity of. — A contract entered into between husband and wife by which the former agreed with the latter that in consideration of her joining with him in a deed to certain lands owned by him he would convey to her a designated tract in fee simple is not void.</p> <p>Same. — Surrender by Wife of Inchoate Interest. — Consideration.—The fact that the real estate which the wife joined in conveying, as well as that which the husband promised to convey to her, was his property before and at the time of the marriage, and she only had an inchoate interest in the same, would not affect the validity of the arrangement entered into between the husband and wife. The averments by the wife of an inchoate interest in a husband’s real estate is a sufficient consideration to support a conveyance by him to her of another portion of his realty equivalent in value to the interest surrendered by her.</p> <p>Same. — Failure of Husband to Convey. — Claim of Wife Against his Estate.— Complaint.— Will. — When at the death of the husband he had failed to perform his part of the contract, and had not conveyed the land as agreed to his wife, she can file a claim against his estate and recover the value of her interest in the lands, in the conveyance of which she joined. To entitle her to recover, the wife need not aver in her complaint that she renounced the provisions of a will made by her husband by the terms of which he devised to her a less interest in the land that he had agreed to convey to her in fee. No presumption can be indulged against the wife that because she did not affirmatively renounce the will, she had accepted under it.</p> <p>Same. — Statute of Frauds.- — The action of the wife against her husband’s estate not being an action for the specific performance of an oral contract concerning real estate, but a claim for the recovery of the value of the purchase-price of land conveyed by her, which it is alleged has never been paid, her right of recovery is not barred by the statute of frauds.</p>

<p>County. — Jail.—Fees of Sheriff for Committing and Discharging Inmates.— Liability of County to Pay. — A sheriff is entitled to be paid out of the county treasury the fees which he is authorized by statute to tax and charge for committing and discharging persons to and from the county jail. In keeping the jail he is acting for the county. The compensation of the sheriff for receiving and discharging the inmates of the jail is part of the expense of keeping the jail, which expense the county, by statute, is required to bear. See sections 6115, 6118 and 5873, R. S. 1881.</p> <p>Black, J., dissents.</p>

<p>Pbomissoby Note. — Instilment in Writing Negotiable Under La/w Merchant. —The following instrument in writing, dated and signed, “ April first eighteen hundred and eighty-nine (1889), for value received, pay to * * * or order, four hundred dollars ($400), with 8 <f0 after maturity until paid. Payable at Exchange Bank, Bluffton, Ind.,” is a promissory note negotiable by the law merchant. It amounts to a promise to pay money and is a negotiable instrument under section 5001, B. S. 1881. It is payable to order and in a bank in this State, and is, therefore, negotiable as an inland bill of exchange. Section 5006, B. S. 1881.</p> <p>Same. — Action Upon by Endorsee. — Defence by Maher Against Payee.— When Answer need not Aver Notice of by Plaintiff. — -In an action by an endorsee upon a promissory note to which the maker had a valid defence against the original payee, the burden is upon the plaintiff to aver and prove that he obtained such paper before maturity without notice of the equities or defence of the maker, and that he paid a valuable consideration therefor. Where the complaint does not allege that the transfer was made to the plaintiff without notice of any defence the defendant in pleading his defence need not allege notice thereof to the plaintiff.</p> <p>Same. — Complaint.—Insufficient Averment as to Absence of Notice. — An averment in the complaint in such an action, that the plaintiff and the payee became the owners of the note, in due course of business before maturity, for a valuable consideration and in good faith, is not equivalent to an allegation that they came in possession of such note without any notice of defences on the part of the maker. In pleading want of notice the consideration must be set out with a distinct averment that it was bona fide and truly paid, and notice must be denied down to the time of paying the money and the delivering of the note.</p> <p>Same. — Answer.—Demurrer.—Sustaining of.— When not Harmless Error.— Where, in such an action, a demurrer was sustained to a paragraph of answer which stated a good defence, but did not aver notice thereof to the plaintiff and his endorsee, and the same defence was set forth in another paragraph, coupled with an allegation of notice, the sustaining of the demurrer was not harmless error, as the court in effect decided that such answer, without the averment of notice, was insufficient. The paragraph of answer being good without such averment, the fact that the defence was subsequently pleaded, supplemented by the averment of notice, can not make the error harmless.</p>

<p>From the Cass Circuit Court.</p>

<p>From the Fountain Circuit Court.</p>

<p>Criminal Law. — Keeping a House of Ill-Fame. — Evidence.—Where, in a prosecution for keeping a house of ill-fame, there was evidence that men and women resorted to the house, and from the character of the people who went there, and all the attendant circumstances, the jury might have inferred that they resorted to the house for the purpose of prostitution or lewdness, a verdict against the defendants will not be disturbed on appeal on the ground that it was contrary to the evidence. Fox, J., dissents.</p>

<p>Extortion. — Money Paid on Account of Alleged Criminal Prosecution. — Action to Pecover. — If a person is guilty of a crime, and upon being threatened with a criminal prosecution therefor pays money in order to sup. press such prosecution and thus protect himself from punishment, he can not recover the money so paid. This is so even if the defendant in the civil suit had represented that a criminal case had been brought against the plaintiff by the prosecutor at the defendant’s instance, which was untrue, and that if the money was not paid the defendant would cause him. “ to be sent to the State prison,” and if the money was paid the case would be dismissed.</p> <p>Same. — Money Paid on Account of Alleged Civil and Oriminal Actions.— Voluntary Payment. — If a person is indebted to another in a small amount for property which it was claimed he had unlawfully taken from the other, and upon being told that a suit had been instituted to recover the value of the same, and that a criminal case was pending against him for the alleged larceny, both of which statements were untrue, he paid, without investigation of any sort, a sum largely in excess of the value of the property it was asserted he had stolen, a portion of which amount was to be paid, as he supposed, to the prosecuting attorney to dismiss the criminal case, he can not recover the amount so paid. If he was injured it was his own fault in not using ordinary prudence in the premises. It was not an involuntary payment, as he was not arrested or placed under restraint in any way, or intimidated by any attempted or threatened violence against his person.</p>

<p>From Boone Circuit Court.</p>

<p>From the Tipton Circuit Court.</p>

<p>Bailboad. — Action Against for Killing Animal. — Negligence.—Sufficiency of Averment Concerning. — In an action against a railroad company to recover damages for the killing of a mule, an averment in the complaint “ that the defendant, without any fault or negligence on plaintiff’s part, carelessly, negligently and wrongfully ran its train over and upon the plaintiff’s brown horse mule,” is a sufficient allegation of the particular act of negligence complained of to withstand a motion to make more specific.</p> <p>Same. — Instruction to Jury. — Animal Running at Large. — In such action it was not error to refuse to instruct the jury that “ if the plaintiff knowingly and consentingly permitted his mule to habitually run at large in the immediate vicinity of the place where he was killed,” he himself was not free from negligence and not entitled to recover where the evidence clearly showed that the animal was not running at large with the plaintiff’s knowledge at the time it was killed, but, on the contrary, he had taken every precaution that a man of ordinary prudence would take to securely fasten the animal in his stable, and that it escaped without his knowledge or fault, and wandered along the street to the place on the track where it was killed.</p> <p>Same. — Animal Securely Confined. — Escape of Without Owner's Fault. — If, after an owner has carefully confined an animal in a properly secured place, it escapes therefrom without his knowledge or fault and wanders unattended to a public railway crossing and is there negligently injured by the company, he may recover for such injury whether there be an order of the board .of ■ commissioners allowing animals to run at large or not.</p> <p>Same.- — Failure to Ring Bell.— Unlawful Rate of Speed. — Evidence.—Where in an action against a railroad company for the killing of an animal at a street crossing, the evidence showed that the plaintiff was without fault or negligence, and that the defendant’s train was running at the time at a greater rate of speed than that allowed by the city ordinance, and that the bell was not rung while passing over said street, it was a question of fact to be determined by the jury whether said failure to ring the bell or the rate of speed caused the injury to the animal.</p> <p>Pleading. — Action for Personal Injuries or Damages to Property — Complaint.— Averment as to Negligenee. — A complaint to recover for a personal injury or damages to property is sufficient to withstand a demurrer when it charges the act which resulted in the injury as having been carelessly and negligently done, without alleging the specific acts constituting the negligence.</p>

<p>From the Hancock Circuit Court.</p>

<p>Peomissoby Note. — Novation of Parties. — Insufficiency of Answer Alleging.— What Necessary to Constitute a Novation — In a suit upon á promissory note, an answer attempting to plead a novation of parties is bad which fails to show when the payees agreed to take the new parties for the payment of the note, or that said parties ever entered into a new promise or agreement with the payees as to the payment of the note. Novation means the substitution of one debtor by mutual agreement for another. There must be a new agreement between all the parties that takes the place of the old debt.</p>

<p>From the Marion Circuit Court.</p>

<p>From the Parke Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Demurrer. — Judgment Upon. — Res Adjudícala. — An adjudication upon a demurrer is as binding upon the parties and operates as res adjudícala the same as in the case of a judgment rendered upon issues joined and tried by the court or jury. The expression, “ the court renders judgment for the defendant,” employed by the court in rendering judgment upon the demurrer, was sufficient.</p> <p>Decedents’Estates. — Claim Against. — Allowance or Rejection of. — Binding Force of. — The allowance or rejection of a claim against an estate, though not a judgment in the strict sense of the term, yet operates as an adjudication between the claimant and administrator or executor of the controversy between them, and is binding upon the estate and its representatives, as well as upon the claimant.</p> <p>Practice. — Former Adjudication. — Statute of limitations. — Demurrer.— Harmless Error. — Where a plea of former adjudication is held to be good, a ruling upon a demurrer to the answer of the statute of limitation, even if erroneous, is not available error. If the same controversy has been once adjudicated between the parties, it is utterly immaterial whether the subject-matter giving rise thereto is barred by the statute or not.</p>

<p>From the Delaware Circuit Court.</p>

<p>Decedents’ Estates. — Proceeding Upon Claim. — Answer Alleging Piling of Final Settlement Account. — Insufficiency of. — In a proceeding upon a claim against a decedent’s estate,an answer was insufficient which showed the filing and pendency of the final settlement account of the administratrix before the filing of the plaintiff’s claim, but which failed to show that the account for final settlement was filed after one year had expired from the time of giving notice by the administratrix of her appointment.</p> <p>Pbactice. — Bad Answer. — Reply.—Demurrer.—Any reply upon demurrer is good enough for a bad answer.</p>

<p>From the Huntington Circuit Court.</p>

<p>Prom the Madison Circuit Court.</p>

<p>From the Morgan Circuit Court.</p>

<p>Raibboad. — Killing of Animals. — Complaint Need not Allege Road Could have Been Fenced. — Where; in an action against a railroad company to recover damages for the killing of an animal, the complaint alleged that the railroad was not fenced at the place where the animal entered upon it, it was not necessary to allege or show that it could have been properly fenced at such place.</p> <p>Same. — Complaint.—•Jurisdictional Fact. — Demurrer.—In such an action a complaint is defective for not alleging the place where the animal was killed, as such an allegation is a jurisdictional fact, but the defect can not be taken advantage of under a demurrer averring that the complaint did not state facts sufficient “to constitute a cause of action.” The demurrer must specifically challenge the jurisdiction of the court.</p> <p>Same.— Obligation to Keep Fences in Repair. — Statute Construed. — A railroad company is liable, under the statute, for a failure to keep a fence in repair after it is built, if animals are killed on that account, to the same extent as if there had been a total failure to fence. In either event the road is not securely fenced as required by statute.</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Vigo Supreme Court.</p>

<p>From the Morgan Circuit Court.</p>

<p>BastAKDY.— Evidence. — Instruction to Jury.— Impeachment of Relatrix.— Where, in a prosecution for bastardy, the defendant introduced evidence for the purpose of showing that some person other than the defendant was the father of.the child, it was error for the court to instruct the jury that such evidence was introduced as tending to impeach the relatrix, and could be considered for no other purpose.</p>

<p>From the Allen Superior Court.</p>

<p>County Commissioners. — Appeal from Decision of by One not Party to Proceeding, — Filing of Affidavit and Appeal Bond. — Any person aggrieved by the decision of a board of county commissioners may appeal therefrom, although not a party to the proceeding, by filing in the office of the county auditor his affidavit setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest, and by filing his appeal bond, within the time specified by statute. Sections 5772-4, R. S. 1881.</p> <p>Same. — Delay of Auditor in Filing Transcript. — Mights of Appellant not Affected thereby. — -The delay of the auditor in filing the transcript and papers until after the expiration of the period within which the statute (section 5774, R. S. 1881) directs the filing, is not good ground for the dismissal of the appeal. His delay will not be permitted to prejudice an appellant who has complied with the statutory requirements.</p> <p>Same. — Appeal from. — Presumption Concerning Jurisdiction of Circuit Court.— The circuit court being a court of general superior jurisdiction, and having authority to hear and determine an appeal from the decision of a board of county commissioners, it will be presumed, on appeal to the Appellate Court, that the things necessary to be done to confer jurisdiction of the appeal from the board of commissioners were done, the record being silent or not showing the contrary.</p> <p>Same. — Money Expended on Account of Ditches, — B,eimbursement of County for. —Might to Employ Attorneys to Secure. — A board of county commissioners has authority to employ attorneys to take such legal measures as may be necessary to reimburse the treasury of the county for money paid out of the treasury on account of the location and repairing of ditches.</p>

<p>Railroad. — Expulsion from Train. — Argument of Counsel. — An action was instituted by the plaintiff against a railroad company to recover damages on account of his expulsion from a train. Counsel for the plaintiff in the course of his argument used the following language: “ The conduct of the conductor and the railroad employees shows that they have become like the corporation for whom they work; they have become so hard-hearted and unfeeling that they have no charity for their fellow-man.” The statement was objected to at the time by counsel for the defendant, but the court overruled the objection, with the observation that the language was fairly justified by the evidence.</p> <p>Held, that there was not such an abuse of the discretion vested in the court concerning the argument of counsel, as to justify a reversal of the judgment.</p> <p>Same. — Consequential Damages. — Where, in such an action, the evidence showed that the plaintiff was ejected from the train at a distance from any station, and had to walk a number of miles to reach his destination, he is entitled to recover damages for any injuries that may have resulted to him on account of his long and fatiguing walk.</p> <p>Same.— When Passenger Without Ticket may he Charged Higher Bate. — It is only where a railroad company affords a reasonable opportunity to a passenger to purchase a ticket that it will he allowed to charge such passenger a higher rate of fare, because he is without a ticket.</p> <p>Instructions to Jury. — Sow Must be Signed. — Section 533, R. S. 1881, requires all instructions requested by a party to be signed by such party or his attorney, and instructions not so signed may be refused without regard to their merits.</p>

<p>Attachment. — Payment by Garnishee of Void Judgment. — Principal Defendant may Recover of Garnishee. — Where, in a proceeding of attachment in another State, against a resident of this State, who makes no appearance, judgment is rendered against him without jurisdiction, a garnishee will not be protected by the judgment rendered against himself or by his payment thereof when he is subsequently sued by the principal defendant. The garnishee, for his own protection, must see that the court has jurisdiction of the principal defendant.</p> <p>Same. — Defective Attachment Bond. — Absence of Jurisdiction. — Where, in such proceeding, the attachment bond did not comply with the requirements of the [Illinois] statute, being “ in the penal sum of-dollars,” instead of “ in a penalty in at least double the amount of the plaintiff’s claim,” the court trying the case lacked one of the essential prerequisites of jurisdiction.</p>

<p>From the Fountain Circuit Court.</p>

<p>Judgment. — By Default. — Application to be Believed From. — Conflicting Affidavits. — Evidence.—Where, in an application to be relieved from a judgment rendered by default, the affidavits and counter-affidavits are conflicting upon the main issue, the Appellate Court will not weigh the evidence and determine where the preponderance is, but the judgment of the trial court will be sustained as in other cases of conflicting evidence.</p> <p>Same. — Inexcusable Negligence. —Where the plaintiffs in an action suffered an entire term to pass without making any effort to close the issues or have the cause set for trial, and to excuse their neglect stated that they did not know that an answer had been filed, and a rule taken against them to reply, they failed to establish a legitimate excuse for their laches, and were not entitled to relief from a judgment taken against them by default.</p>

<p>From the Dearborn Circuit Court.</p>

<p>Justice oe the Peace. — Action Against for Accepting Insufficient Replevin Bond. — Complaint.—Presumption.—Under sections 1221 and 1433, B. S. 1881, any bond filed with a justice of the peace, with good and ample security, regardless of the particular form, is sufficient in an action of replevin, and a complaint against the justice does not state a good cause of action which charges that he failed to take the particular kind of bond provided for in section 1547, B. S. 1881. As the complaint did not allege that the justice did not take a good and lawful bond of any kind before the issuing of the writ of replevin, the presumption is that he did his duty in that respect.</p> <p>Same.— Value of Property Replevied. — Complaint.—Averment that Justice was Without Jurisdiction. — Presumption.—An allegation in the complaint in such action, that the property was worth more than $300 at the time the writ of replevin was issued, and that the justice knew it was worth more than that sum, without showing from what source he gained his information, and without an allegation that the complaint in the action of replevin, and the affidavit (if an affidavit was filed) showed the property to be worth more than $200, does not state a good cause of action. The presumption is that the justice acted in good faith, and that the paper filed in the replevin action showed that he had jurisdiction of the subject-matter.</p>

<p>Erom the De Kalb Circuit Court.</p>

<p>Master and Servant.— Visible Defect. — Duty of Employee to Look. — Contributory Negligence. — An employee must use the faculties which he possesses, and if there should he a visible defect in a tool used by him which he could see by looking, he is guilty of negligence if he does not look, unless some reasonable excuse is given for his not doing so.</p> <p>Same.— Who is a Fellow-Servant —How Determined. — As to whether, in a given case, one is acting as a fellow-servant or a vice-principal is a conclusion to be drawn from the proven facts and circumstances.</p>

<p>From the Clark Circuit Court.</p>

<p>Municipal Corporation. — Inability of for Purchase of Boad Scraper: — Section 334%, B. S. 1881, Construed. — A municipal corporation has full control over its streets and alleys, and is in duty hound to keep them in safe condition for the travelling public, and is liable on a promissory note given for the purchase of a “ reversible road scraper ” to be operated on its streets. Section 3342, R. S. 1881, forbidding an incorporated town to borrow money or incur any debt or liability, save on petition, etc., does not apply to the purchase of articles of indispensable necessity.</p>

<p>Witness. — Non-Expert.—Mental Oondiiim of Party. — Scope of Examination.— A non-expert witness, in giving an opinion as to whether or not a person was of unsound mind, has the right to consider things which he saw and had personal knowledge of, although he may he unable to describe them as well as the descriptive facts to which he had testified.</p>

<p>INSURANCE. — Fire.—Failure of Broker to Pay Premium. — Action Against for Loss. — Evidence.—Where a broker was employed to procure a policy of insurance on a piece of property, and he caused to be issued and delivered to the plaintiff a policy in an insurance company of which he was not the agent, and the plaintiff paid to him the premium required to obtain said policy, to be paid by the broker to the insurance company, which payment he failed and neglected to make, and thereafter, and during the term of the policy, the premises were destroyed by fire, and the policy was non-enforceable because of the broker’s failure to pay the premium, the latter was liable to the plaintiff, who believed in good faith that the premium had been paid, for the damage sustained by him by reason of such default. For a discussion of the evidence tending to show that the broker was the agent of the plaintiff, and not of the company, see opinion.</p> <p>Agent. — Gratuitous Service. — Failure to Obey Instructions. — Inability for Loss Occasioned Thereby. — Where one has undertaken or entered upon a service, although it be gratuitous, it is his duty to conform to the instructions given. The trust and confidence reposed in him furnish a sufficient consideration for the undertaking to obey instructions, and a failure to do so will subject him to liability for the loss or damage occasioned thereby.</p>

<p>Promissory Note.--Negotiable by Law Merchant. — Action Upon by Endorsee.— Want of Consideration. — Answer.—In an action by an endorsee upon a promissory note payable to order in a bank in this State, an answer pleading a want of consideration, does not state a good defence.</p> <p>Same. — Executed, by Husband and Wife. — Separate Answer of Wife Pleading Coverture.— Peply. — Where, in an action upon a promissory note executed by a husband and wife, the wife filed a separate answer admitting the execution of the note, but alleging that at the time she executed it she was, and still was, a married woman, the wife of her co-defendant, the burden was cast upon the plaintiffs of showing in the reply that the contract was one which the wife had the power to make. A reply to such paragraph of answer was bad which alleged that the note was executed in pursuance of a contract made between the wife and the payee of the note, and was beneficial to her and her separate estate, and was, therefore, a contract which she had lawful power to make. To render the reply sufficient, it should have shown a state of facts from which the court could determine that the wife was not a surety.</p> <p>Same. — Consideration.— Liability of Wife if She Contracted as Principal. — Estoppel. — In an action upon a promissory note governed by the law merchant, bought by endorsees before maturity, in good faith and without notice, against the makers, husband and wife, it is not necessary for ■the plaintiffs to establish, as against the wife, that the consideration was in fact beneficial 'to her or to her estate, or that there was a sufficient consideration, if it be shown that she contracted as a principal- in fact, upon a consideration sufficient or insufficient, or if such circumstances be shown as will estop her from denying that she contracted as a principal.</p>

<p>Eailroad. — Frightening Animals. — Liability.—Eailroad companies are not liable for frightening animals by their locomotives, cars or carriages while using them in the ordinary way.</p> <p>Same. — Action for Injury to Property. — Accident at Crossing. — Demurrer to Evidence. — In an action against a railroad company to recover damages for injury to a horse and vehicle at a crossing within the corporate limits of a town, the evidence for the plaintiff showed that he had passed over the crossing to a point on the north side of the track, where he was out of harm’s way, but for the fright occasioned by escaping smoke from the engine; that at the time his horse became frightened he was about five or six feet north of the crossing, and the engine was about one hundred and fifty feet east of the crossing, and the horse commenced to back toward the crossing about the same time the engineer reversed his engine, and caused the same to move along the track slowly to the point where the plaintiff was on the crossing, crushing his buggy and injuring his horse. The plaintiff was in plain view of the engine during all the time it was moving to the point one hundred and fifty feet east of the crossing, and until it returned and his property was damaged. The plaintiff made every effort to attract the engineer’s attention. The persons in charge of the engine did not see him until after the accident occurred.</p> <p>Held, that, as the jury might have reasonably decided from the plaintiff’s evidence that the damage complained of was caused by the negligent running of defendant’s cars, it was error for the court to sustain a demurrer to the evidence.</p> <p>Evidence. — Demurrer to.— What it Admits. — A demurrer to the evidence admits all the facts which the evidence tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence.</p>

<p>Proceedings Supplementary to Execution. — Statute Respecting Special Findings Not Applicable to. — Proceedings supplemental to execution are classified as civil actions, and the rules of practice prescribed by the civil code are applicable, except where different rules are expressly provided by statute. The hearing in such proceedings is required by law to be summary, and the character of the judgment is expressly prescribed so that the provisions of law respecting special findings do not obtain.</p> <p>Same. — Evidence.—Necessity of Issuance of Execution upon Judgment. — Affidavit Can Not be Resorted to to Supply Proof. — Before a judgment creditor is entitled to relief in a proceeding supplementary to execution, the evidence must show that an execution had been issued upon the judgment. The affidavit containing an allegation that an execution had issued and was then in the hands of the sheriff can not be resorted to for the purpose of supplying such proof. Facts are to be established in the trial of such proceedings íd the same manner as in other civil actions.</p>

<p>From the Porter Circuit Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>Bailroad. — Action Against for Killing of Animals. — Complaint.—Inability to Fence. — Matter of Defence. — A complaint against a railroad company, under the statute, for the killing of animals, is sufficient if it allege that the right of way was not securely fenced at the point where the animal entered upon the track and was killed, and if it was not the duty of the company to fence the road at the place in question, such fact is a matter of defence, concerning which the complaint need not make any averment.</p> <p>Same. — Inability to Fence. — Burden of Proof. — If the animal entered upon the right of way at a place where the company could not fence, the burden is on the defendant to prove that fact. For a discussion of the evidence, showing that it was the duty of the company to maintain a fence at the point where the animal was killed, see opinion.</p> <p>Same. — Contributory Negligence. — Not a Defence. — In an action under the statutes to recover damages for animals killed on account of the defendant’s failure to fence its road, the question of contributory negligence does not arise, and can not be relied upon as a defence.</p> <p>Verdict. — General Interrogatories to Jury. — If the answers to interrogatories can, by any hypothesis, be reconciled with the genera] verdict, the latter will control, and the court should not render judgment against the party who has the general verdict in his favor.</p>

<p>Railroad. — Action Againstfor Killing of Animal. — Inability to Fence. — Burden of Proof. — In an action against a railroad company to recover damages for the killing of an animal, which it was alleged entered upon the defendant’s right of way at a point where it should have been but was not securely fenced, the burdeu of proof is on the defendant to show that the company could not fence its track at the particular place where the animal entered upon the right of way without endangering the safety of its employees.</p> <p>Same. — Animal Taken Upon Bight of Way. — Effect of on Bight of Becovery.— Where, in such an action, the evidence showed that the plaintiff had taken his horses upon the company’s right of way, and allowed them to graze there a short time, but before the train arrived he had taken them upon the public highway, he, with the two horses he was leading, being fifty or sixty feet, and the animal that was killed, which was following, being about thirty feet west of the crossing when said train approached that frightened it and afterwards killed it, the fact that he had previously taken said animals upon and over said company’s right of way will not prevent his recovery, provided he is otherwise entitled to recover.</p> <p>Same.— Witness. — Opinion.—It was not error for the court, in such action, to refuse to permit a witness to state what, in his opinion, would be the effect of putting in cattle-guards across any point crossing the side track or main track where a switch runs parallel with it, and what would be the effect in the particular case in question. This was a matter for the jury to determine.</p> <p>Evidence. — Exclusion of. — How Made Available on Appeal. — The exclusion of testimony can only be made available by asking a pertinent question of a witness on the stand, and if objection is made, stating to the court what the witness will testify to in answer to said question, and if the court sustains the objection, reserving an exception.</p>

<p>From the Montgomery Circuit Court.</p>

<p>From the Scott Circuit Court.</p>

<p>County. — Employment of Physician by Township Trustee. — Liability of County Therefor. — Demand.—If a pauper requires a surgical operation to be performed upon bim, and the township physician is incompetent toperform it, it is the duty of the township trustee to select and employ a physician to perform the needed service, and the county will be liable for the reasonable value of the services. Under such circumstances it would not be necessary for the plaintiff to allege or prove that the county physician refused to perform an operation that he could not by reason of his want of knowledge and skill. A demand upon him to perforin the service was unnecessary.</p> <p>Same. — The mere fact that a board of commissioners employs physicians to attend the poor of a county will not operate as a limitation upon the power of a township trustee to employ others in cases of emergencies.</p> <p>Same. — Authority of Township Trustee in Relieving Necessities. — It is for the township trustee to determine as to the necessities of persons, and in the absence of fraud or collusion his determination is conclusive.</p> <p>Practice. — Imperfection in Pleadings.— When Disregarded.— When Judgment will not be Reversed. — Forms, variance and imperfections in the pleadings will be disregarded where they might be amended in the court below; neither will a judgment be reversed if the cause has been fairly tried and determined in the court below.</p>

<p>Judgment. — Evidence.—Reversal on Appeal. — Where the evidence fails not only to support a judgment, but is in direct conflict with it, the judgment will be reversed on appeal.</p>

<p>Master and Servant. — Action for Personal Injuries. — Defective Machinery.— Employee’s Knowledge of. — Complaint.— In an action by an employee against his employers, to recover damages for personal injuries, a complaint failed to state a good cause of action which averred that the plaintiff was required to shift a belt from one pulley to another, which propelled a circular saw ; that the belt was rottep, and no shifter being provided, the plaintiff was compelled to shift it with a stick, and while attempting to do so the stick was caught in the frayed edges of the belt and broken, and a piece thereof struck and injured the plaintiff, but which failed to aver that the plaintiff was ignorant of the defective condition of the belt. An allegation in the complaint that the plaintiff was ignorant of the danger attending the shifting of the belt with a stick does not aid the complaint. The defendants had the right to assume that the plaintiff could fully appreciate the perils of the situation, and would use prudent means for his own protection.</p> <p>Same. — Complaint.—Averment as to Absence of Contributory Fault. — Demurrer. —The fact that the complaint in such action averred that the plaintiff was without contributory fault did not make it good against a demurrer. The defect in the complaint was, that it failed to make a case of actionable negligence against the defendants.</p> <p>SAME. — Complaint.—Proof of Variance. — Where in such an action the complaint proceeded upon the theory that the plaintiff was ignorant of the danger, it will not be supported by proof that he did know all about it, but remained in the service of the defendants upon their promise to provide a remedy.</p> <p>Negligence. — Defective Machinery. — Assumption of Enhanced Danger by Em'ployee. — Duty of Employer. — Negligence consists in the omission of a duty, and where there is a defect in machinery or appliances under such circumstances that the employee, by the terms of his engagement, assumes the enhanced dangers, the employer is under no obligation to remedy the defect. He owes no duty to remove the danger, consequently his failure to do so will not constitute negligence.</p>

<p>Peactice. — Instructions to Jury.— Waiver in Brief. — It is not sufficient on appeal for counsel to refer to an instruction given by the court below, and state in their brief that in their opinion the instruction does not correctly state the law. Counsel must do more than make assertions in order to have a question reviewed on appeal. They must “state reasons for their propositions, and if necessary cite authorities in their support.”</p> <p>Instructions to Jury. — Reference to Paragraph of Complaint to he Considered. — Where a complaint was in two paragraphs, and the issue joined upon the first paragraph was not submitted to the jury, it was not error for the court to instruct the jury that it was only necessary for them to give attention to the second paragraph of the complaint.</p> <p>Same. — Malicious Prosecution. — Malice.— Grand Jury. — Subpcena.—In an action for malicious prosecution, where the evidence tended to show that the defendant procured himself to be subpoenaed before the grand jury in order that he might testify against the plaintiff, it was proper for the court to instruct the jury that “ as to whether a person appears before the grand jury voluntarily or under process of subpoena, it is only material as touching the question of malice. If a person appears voluntarily some inference of malice might arise, but not necessarily so. On the other hand if a person appears in answer to a subpoena, the inference would be that he did so without malice, but if other facts show that he testified falsely and maliciously, the subpoena would not protect him.”</p>

<p>Taxes. — Conversion of by School Township. — Action by School Town to Recover. — Mandamus.—Where a fund, derived from taxes levied for school purposes, and rightfully belonging to a school town, has been diverted and appropriated to the use of the school township, an action will lie in favor of the former against the latter for the recovery of the same. Resort need not be had to a mandamus proceeding.</p> <p>Same. — Legality of Tax. — Regularity of Assessment. — School Township can not Controvert. — The township, having received and used the fund, can not controvert the legality of the tax imposed, or the regularity of the assessment.</p> <p>Same. — Constructive Trust. — Statute of Limitations. — The statute of limitations would bar a recovery for any portion of the fund which came into the hands of the defendant more than six years prior to the bringing of the suit, as the plaintiff’s claim is founded upon a constructive trust to which the statute applies.</p> <p>Practice. — Complaint.—Motion to Strike Out. — The overruling of a motion to strike out a portion of a paragraph of complaint is not reversible error under any circumstances.</p>

<p>Animals. — Killing of Dog. — Repeal of Act of March 7th, 1883. — Attempted Revivor of. — The act of March 7th, 1883 (Acts 1883, p. 148), providing among other things a penalty for the mischievous or malicious injuring or killing of any dog duly listed for taxation, etc., was repealed by the act of March 5th, 1891 (Acts 1891, p. 453), on the same subject, and it was not error to quash an affidavit founded upon the first act after the passage of the latter act. The provision in the act of March 6th, 1891, on the subject of taxation, “ that nothing in this act shall be construed so as to repeal or modify any of the provisions of an act to provide for the taxation of dogs, etc., in force March 7th, 1883,” etc., was not sufficient to revive the said act of March 7th, 1883, that was repealed by the act of March 5th, 1891,</p> <p>Statutes. — Repealed Act. — How Revived. — Where an act has been repealed it can not be revived and re-enacted by mere reference to its title. The mode provided for in the Constitution must be followed.</p> <p>Same. — Title of Act.— Considered for what Purpose.- — While the title of an act can not control plain words in the body of an act, it may be considered for the purpose of ascertaining the mind of the legislature.</p>

<p>Pbactice. — Appeal.—Sufficiency of Evidence. — Bill of Exceptions. — Stenographer’s Certificate. — To present any question on appeal, concerning the sufficiency of evidence, the bill of exceptions must contain a statement that “ this was all the evidence given in this cause,” or words of equivalent import. The certificate of the official stenographer that “ the foregoing is a true, complete and impartial report of the evidence, rulings of the court and exceptions thereto,” is not sufficient. There must be some expression by the judge, either in the bill of exceptions or in his certificate, wherein it is declared that such bill embodies all the evidence given at the trial.</p> <p>Same. — Instructions to Jwry. — How Brought into Record. — It is not necessary, in order to bring an instruction properly into the record for review, to incorporate it in the bill of exceptions. It is sufficient to write on the margin, or at the close, “ given and excepted to,” which memorandum must he dated and signed hy the judge, and the instruction filed. The giving of them as a whole, no exception having been taken, presents no question when assigned as a cause for a new trial.</p> <p>Witness. — Testimony on Former Trial. — Refreshing Recollection. — Where a witness was interrogated regarding a certain transaction, who failed to testify as fully as the counsel who had called him desired, it was not error to submit to him a paper, which was not read in evidence, containing an examination of the witness on the same subject at a previous trial, and to read extracts to him from the paper for the purpose of refreshing his memory, and to ask him if, after hearing such passages read over to him, he did not now recollect the facts as he had formerly testified.</p>