Volume 6 — Indiana Appellate Court Reports

<p>Judgment. — Default.—Action to Set Aside. — Return of Service by Sheriff.— Amendment of. — When Made. — Effect.—Appearance of Counsel. — Duty of Client. — In an action to set aside a judgment by default it is alleged in the verified motion that the affiant was informed by his co-defendant in the action in which the default was taken that he had employed counsel to appear for both of them in said action ; that at the time, and previous thereto, of taking said default, said attorney was sick and unable to appear and attend to said case; that at the time the default was taken, the court had no jurisdiction of the defendant, affiant here, because there was no record of return of service on said affiant, which only consisted of the following endorsement on the summons issued to the sheriff for affiant: “ Came to hand January 7th, 1891; served, as commanded, by reading to and within the hearing of the within named defendant, John: Heaton, January 8th, 1891.” That the affiant has a good and meritorious defense in said cause of action, and that said default would not have been taken but for his, affiant’s, reliance upon the appearance of said attorney. The plaintiff, in the cause defaulted, filed a counter affidavit, alleging, among other things, that the said defendant in said cause was duly served with summons, and that return of service was endorsed on said summons as follows : “Came to hand January 7th, 1891. Served, as commanded, by reading to and within the hearing of the within named John Heaton, January 8th, 1891. John S. Miller, Sheriff B. C.” (The transcript of the record contains the return of service as above last set out.) That the said attorney employed by defendants to appear in said cause of action had a partner, and that said firm name was entered in appearance for said defendants, and that no excuse is given why the partner of said side attorney did not attend to said matter.</p> <p>Held, that-the showing made to the court was not sufficient to cause the judgment to be set aside, and that the negligence of the attorney is the negligence of the client.</p> <p>Held, also, that the evidence afforded by the transcript can not be wholly disregarded.</p> <p>Held, also, that an amendment by a sheriff to his return speaks from the date of the return amended, and is the act of the officer as of that time, and that, in the absence of a showing to the contrary, it will'be presumed that the amendment was lawfully made so that the return should declare ¡he truth.</p> <p>Held, also, that where a firm is entered in appearance for a party, the excusable absence of one of the firm does not answer for the absence of the other.</p> <p>Held, also, that the allegation of a meritorious defense can not avail anything, where a reasonable excuse is not given for suffering the default. Held, also, that a party to a suit is not excusable for not giving some attention to the action.</p>

<p>Erom tbe Vermillion Circuit Court.</p>

<p>Appeal. — Practice.—Question on Appeal.. — How Properly Presented — Bill of Exceptions. — Brief.—Before a question is properly presented on appeal to this court, the matter relied upon as establishing the error must appear in the bill of exceptions and be discussed by counsel in his brief.</p> <p>Practice. — Premature Action. — Plea, in Abatement.— When Proper. — Plea in Bar. — When an action is prematurely brought, and the fact does not appear on the face of the pleading, the proper remedy is by a plea in abatement, and such matter can not he effective as a plea in bar.</p> <p>Reformation op Instrument. — Equity. — Promissory Note. — Mistake in Pate. —Cross-complaint..—Where a note, by mutual mistake, is made payable earlier than the parties intended, such note, upon a proper showing, ‘ will be reformed so as to conform to the mutual intent, and such action to reform need not be a separate one, but may be in the nature of a cross-complaint.</p> <p>Pleading. — Eraud.—Necessary Allegations. — Signing Contract in Ignorance of Contents. — Effect.—Where fraud is relied upon, the facts constituting it must be pleaded and must appear to be such as are calculated to deceive, and if a party signs a contract in ignorance of its contents, he can not avoid the contract because of that fact.</p> <p>Equity.— Action to Cancel Notes. — Failure to Offer to No Equity. — Where a party in his cross-complaint demands that certain notes be delivered up and canceled because fraudulently executed, but makes no offer to repay the benefit derived therefrom, he has not placed himself in a position to obtain the relief demanded:</p>

<p>Taxes. — Fraudulently Converting Properly. — Forfeiture.—Sufficiency of Complaint. — Statute Construed. — -To Whom Taxed. — In an action against a person for forfeiture for fraudulently converting taxable property into ' property not subject to taxation, the complaint alleged in substance that the defendant, on the 31st day of March, 1888, having a large sum of money on deposit in a certain bank, drew his check on said bank for $24,025, and requested and received therefor the said sum in what is commonly called greenbacks; that upon receiving the said sum of money he enclosed it in a package and placed the same, for safe keeping in said bank, where he kept the same until the 11th day of April, 1888; that he then withdrew said package and placed the amount thereof ($24,025) on deposit in said bank, with which he had a contract to keep not less than $100,000 on deposit for one year, beginning January 11th, 1888; that he drew said money with the intention of holding it only a few days, until after April 1st, 1888, with the fraudulent intent to prevent such property from being listed for taxation, and of evading the payment of taxes thereon; that in listing his property for taxation he, said defendant, with the intent aforesaid, failed and refused to list for taxation the said sum of $24,025, which he had temporarily converted for the purpose aforesaid. Wherefore, etc.</p> <p>Held, that the complaint set forth facts sufficient to constitute a fraudulent attempt against the public revenue, as provided for by law, and subjecting the defendant to the penalty therein provided.</p> <p>Held, also, that the terms of the statute are general, and not limited to transactions whereby taxable property is removed from the State, or whereby it is transferred to a non-resident.</p> <p>Held, also, that where taxable property has been temporarily converted for the purpose of avoiding taxation, it is to be taxed to the person who makes such conversion, if the assessor discovers that such conversion has been made ; and it is the duty of the assessor to cause such property to be assessed at its fair cash value.</p>

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

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

<p>Erom the Marshall Circuit Court.</p>

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

<p>Jurisdiction. — Appellate Court. — Matters Equitable Purely and Incidentally.— Where an action for damages is sustained by reason of being wrongfully deprived of the use of leased premises, and the defendants answered affirmatively, and, in addition thereto, filed a eross-complaint asking for a judgment against the plaintiffs for rent, and that said judgment be-declared a lien on certain crops on said leased premises, and that said lien be foreclosed, the cross-complaint being a demand for affirmative equitable relief and not a matter incidentally arising and invoking a consideration in equity, this court has no jurisdiction of the case; for matters purely equitable in character are within the jurisdiction of the Supreme Court, but equitable matter incidentally arising will not deprive this court of jurisdiction.</p> <p>Same. — Expressly or Impliedly Determined in Every Case. — May be Raised at Any Time. — Court May Determine of Its Cum Motion. — A court must and does determine in every case either expressly or by necessary implication, whether or not it has jurisdiction, and to determine that question it must look to the law, the only source of jurisdiction. The question of jurisdiction may be raised at any stage of the proceedings, and if counsel do not raise it, it is the duty of the court, of its own motion, to inquire into it.</p>

<p>Baiíboad. — Complaint for Damages. — Construction of. — Copy of Ticket Not Necessary. — Passenger.—Common Carrier. — Preach of Contract. — In an action by a passenger against a railroad company for damages by reason of a breach of the contract — in’failing to carry the passenger to her destination, by carrying her beyond her destination, and compelling her to walk back through a cold wind and carry her baggage and a year old child, from which exposure she became sick — it was held that the theory of the complaint is that the plaintiff was injured because of a violation of the contract to safely carry the plaintiff to her destination, and that it was not necessary to set out in the complaint a copy of the ticket.</p>

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

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

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

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

<p>Pleading. — Sufficiency of Gomplaint Based on Section 3261, B. S. 1881.— Agricultural and Unimproved Land in Gity Limits. — Ilow Taxed. — Bccorery of Illegal Taxes. — In an action based on section 3261, B. S. 1881, for the recovery of taxes illegally collected, the complaint, to be sufficient, must allege, among other things, that the land is not used for other than agricultural purposes, or is wholly unimproved. The allegation that “the land was used for agricultural purposes ” is not sufficient; and the court has the right to infer from such allegation that, as it was taxed for all general city purposes, it was used for other than agricultural purposes.</p>

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

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

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

<p>Assignment oe Ekroes. — Joint Assignment.— When Such Assignment Must Fail. — Demurrer.—Where an assignment of error does not refer to the’ rulings on demurrers separately, but assigns them jointly, if any paragraph .to which any of- such demurrers refer is sufficient, the assignment must fail.</p> <p>Same. — Joint Assignment.— When Must Fail. — Instructions to Jury. — An assignment of error setting up jointly as error the giving of several instructions can avail nothing, unless all the instructions given and thus assigned as error are erroneous.</p> <p>Sale. — Made on Sunday. — Ratified on a Secular Day. — Effect of Ratification. — • A sale made on Sunday, but which is ratified on a secular day, by a retention of the property by the vendee, and a. promise to pay for it, is a valid contract, the retention of the property being the consideration for the promise to pay.</p> <p>HARMLESS Error. — Sustaining Demurrer. — Another Paragraph Admitting the Same Evidence. — Where a demurrer to a paragraph of answer has been sustained, and there is another paragraph of answer substantially the same, admitting all the evidence admissible under the paragraph to which the demurrer was sustained, such ruling only amounts to a harmless error, and can avail nothing on appeal.</p>

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

<p>Railroad. — Master and Servant. — Injury of Servant. — Release of Company for Damages in Consideration of Future Employment. — Breach of Contract of Employment by Company. — Action for Damages for Breach. — Right to Recover.— Where a person in the employ of a railroad company, as a brakeman, received injuries while in the discharge of his duties as such brakeman, and said company — in consideration of a written release by said employe, discharging the company from all liability arising out of the personal injury sustained by the servant, which release was executed — promised to pay the employe $100, and to give him steady and permanent employment at a compensation equal to that he was receiving from the company prior to receiving the injury, the parol agreement to pay the employe S100, and to give him steady and permanent employment, was an acknowledgment by the company of its liability for said injury, and the executed release wms a sufficient consideration for such parol promise; and, if the railroad company, without any fault on the part of the employe, breaks said parol agreement, and discharges the employe from its employment, the employe may maintain an action for damages for the breach of the contract; and, in such action, the release need not be made a part of the complaint, as the action is on the parol promise of the company, and not on a written instrument.</p> <p>Same. — Contract for Services. — Time, “Steady and Permanent.” — Sow Construed.- — Public Policy. — Contract in Violation of. — A parol promise by a railroad company to furnish an employe “steady and permanent” employment, in consideration of a written release of all claims for damages against the company sustained by the employe while in the discharge of his duty as such employe, is not void for uncertainty and indefiniteness as to time of employment; but shows an agreement on the part of the company to retain the employe as long as the latter is able, ready and willing to perform such services as the company may have for him to. do; and the fact that the company is a quasi public servant can not. affect the promise of the company as being against public policy, for the. rights of the public could not be affected thereby.</p> <p>Master and Servant. — Contract of Employment. — Indefiniteness as to Time.— When not Terminable at Will. — Consideration Paid in Advance. — Where A. hires B. and agrees to give him “steady and permanent” employment, on a consideration moving from B. to A., which is paid in advance, there is not a want of mutuality; and the rule that an employment for an indefinite time is an employment at the will of the parties does not apply in such a contract.</p> <p>Contract. — Parol Collateral to Written. — When not Merged. — Consideration.— A parol contract of employment, which is collateral to, and partly in consideration of, a written release by the employe to the employer, is not merged in the written release, and the consideration for the collateral contract may he proved.</p> <p>Same. — Breach of. — Measure of Damages. — Abéis in Mitigation of Damages.— Burden of Proof on Defendant. — -In an action for damages because of a breach of a contract of hire, the servant may treat the contract as continuing in force, and in such ease the measure of damages would be the amount of wages he would have earned under the contract, deducting all such sums as he earned, or by reasonable diligence might have earned, elsewhere, and making allowance for the expenses of obtaining employment ; and the burden is on the defendant to show that the plaintiff might have obtained other employment.</p> <p>Variance. — Between Complaint and Proof. — When not Fatal. — Where, in an action for breach of contract, the complaint averred the time of employment to be “steady and permanent,” and the plaintiff testified upon tlie trial that the time for which the defendant had employed him was during his (plaintiff’s) life, there is no such variance between the proof and the complaint as to he fatal.</p> <p>Statute oe Frauds. — Contract for Personal Seroiees for Indefinite Period or Term of Years not Within. — A contract personal in its character, as for personal services, which might terminate with the death of the party making it, though the contract be for an indefinite period, or a term of years, is not within the statute of frauds.</p>

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

<p>Municipal Corporation. — Employment of Counsel. — Authority to Employ.— When Binding on City.— Valuable Service Unsolicited. — Acceptance of Benefits of. — Inability for. — The common council of a city has the power to employ counsel in addition to the city attorney, to protect the interests of the city, hut such employment must be made directly or through an authorized agency. If an individual councilman should make such an employment, without authority to do so, and the employment be ratified by the common council, it would hind the city; or, if an attorney should render valuable services which are beneficial to the city, and the council, with a full knowledge of the facts, accepts the fruits of such service, the city will be liable for the value thereof.</p>

<p>Special Finding. — Sheriff’s Return to Execution Incorporated in.- — Improper. —Surplusage.—A. sheriff’s return to a writ of execution, being merely an evidentiary fact, should, when incorporated into the special findings in a case, be disregarded as surplusage, the province of a special finding being to state the facts and not the evidence.</p> <p>Deplkvin. — When Will Lie. — Comprehends Action for Trespass. — The action of replevin may be maintained where, prior to the adoption of the code, the action of trespass would lie for the taking of personal property.</p> <p>Partnership. — Execution Against Individual Member. — Taking Possession of Entire Partnership Property. — Sale of Interest. — Redelivery.—On an execution against a member of a partnership, the sheriff may — without interfering with the rights of the other partners, beyond what is necessarily incident to such proceeding — take possession of the entire partnership property in order to reach the interest of the execution defendant, and, after the sale of such interest so levied upon, deliver the property to the other partners and the purchaser of the interest sold.</p> <p>Same. — Execution Against Individual Member. — Levy and Sale. — Must be of Entire Interest. — Interest, How Determined. — Sheriff Trespasser Ab Initio.— Where an execution is issued against an individual member of a partnership, the sheriff can not, in such case, seize and levy upon specific articles of the partnership property, but the levy and sale must be of the entire interest of the debtor in the partnership property, and an invalid interference with the rights of the other partners makes him a trespasser ab initio; and, in such case, if no steps are taken by any of the parties in interest to determine the beneficial interest of the defendant in the partnership property, the sheriff may proceed to sell the apparent interest of the defendant in such property, but in no event can the entire partnership property be sold, and all the proceeds thereof applied to individual indebtedness, in disregard of the interests and rights of the other members*</p>

<p>Appeal. — Jurisdiction.—Case Transferred, to Supreme Court. — Subrogation.— Idea. — Jurisdiction, on appeal, of a case wherein affirmative equitable relief is demanded by way of a cross-complaint to enforce a lien and for subrogation, is in the Supreme Court.</p>

<p>Appeal. — Jurisdiction.—Case Transferred to Supreme Court. — Contribution.— IAen.- — Jurisdiction, on appeal, o£ an action for contribution and to enforce a lien, is in the Supreme Court.</p>

<p>Bridges. — Construction of. — Supplemental Contract for. — Bdcjht to Make. — Effect of. — County Commissioners. — A board of county commissioners, after giving due notice as required by law, contracted with the lowest responsible bidder for the erection of the substructure for a bridge, consisting of two abutments and a pier, for a certain price per cubic yard for the masonry, and, also, a stipulated price per cubic yard for the excavations for the abutments and pier, and the timber used to place the abutments and pier on at so much per thousand feet, all of the work done and materials furnished to be subject to the approval of the county engineer; and on account of a bed of quicksand, which necessitated the driving of piling for a foundation for the pier, said board of commissioners entered into a contract supplemental to the original, for the furnishing and driving of said piling, at a stipulated price per lineal foot, the quantity of the timber used and the depth to be driven to be determined by the county engineer, the piling, after driven, to be cut off square under the bed of the river, etc., and said contract expressly stipulated that it shall be supplemental to, and shall not make void or change, the original contract, except as to the time of completion; and the county engineer ordered a certain number of piling of different lengths to be furnished and driven and cut off as stipulated, which was done.</p> <p>Should the county pay for the tops of the pilings cut off as well as for what remained in the ground under the bed of the river? Did the supplemental contract impose any additional duty or give any further compensation than that imposed or given in the original contract? and was the supplemental contract legal, being made without notice, survey, estimate of the work, or additional bond ?</p> <p>Held, that there was nothing in the supplemental contract which limited the pay to the pilings remaining under the bed of the river and in actual use as a foundation- for the pier, and that the county was liable for the tops cut off, even if they were not in the letter of the contract, as the engineer who ordered the piling was the agent of the county, and the county would not be permitted to take advantage of its own acts which were in excess of the terms of the contract.</p> <p>Held, also, that the supplemental contract served to interpret the original contract, which, in the light of the supplemental, did not contemplate the driving of piling, but the converse, and that the furnishing and driving of piling, etc., was an additional burden which called for additional compensation.</p> <p>Held, also, that the contract supplemental to the original, for the making of a foundation for the pier, by the use of piling, is not such a departure from the original as to require new notice, being an amendment to cure a deficiency in the original contract, and is clearly valid.</p> <p>Same. — Construction of.- — Separate Contracts. — The statute does not require that a bridge shall be constructed under one entire contract, but separate contracts may be made with reference to distinct parts of the structure. Municipal Corporation. — Contract.—Must Conform to Statute. — A public corporation, in executing a power the manner of which is prescribed by statute, must proceed in accordance with the law, or the act will be void. Corporation. — Contracts of.— Ultra Vires. — Rule as to. — The doctrine of ultra vires, in whatever form interposed, is regarded with disfavor by the courts, and a recovery is permitted for money, property or labor on an implied agreement to pay for the same as much as it is reasonably worth; and this rule applies to public corporations as well as to private. Officers. — Notice of Authority of. — In dealing with public officers, all persons are bound to take notice of their official and fiduciary character, and that such officers can only bind the corporation which they represent by contracts which are authorized by law; and there is a wide difference between the contracts of municipal corporations and those of a private corporation.</p>

<p>From tlie 8t. Joseph Circuit Court.</p>

<p>Appeal. — 2leversal of-Judgment.- — Evidence.—This court will not weigh the evidence, nor decide controverted questions of fact, nor reverse a judgment of the court below when the evidence fairly tends to sustain it.</p>

<p>Pleading. — Complaint.—Sufficiency of. — Promissory Note. — Signing in Firm Name. — In an action on a promissory note which was executed in the firm name and style of “Bains & Murray,” the complaint sufficiently connects the defendants, Levi Bains and John II. Murray, with the execution of the note, when it* alleges, among other things, that the defendants were partners engaged in business under the firm name of “Bains& Murray,” and borrowed the money from the plaintiff, and executed their note therefor.</p> <p>Same. — Set-Off.—When not Proper. — An answer by way of set-off to an action on a promissory note was not sufficient, which alleged, in substance, that the defendants had loaned the plaintiff’s deceased husband a sum of money, by draft payable in thirty days after sight, which, after the death of her husband, she had cashed at the bank where payable, and the amount thereof was charged to defendants, which they paid to the hank, such claim was not a matter of set-off against the plaintiff.</p> <p>Appeal. — Bill of Fkceptions. — Beeord.—Matter not Brought in. — Where a motion for a continuance was overruled and excepted to, and time given to file a bill of exceptions, and no bill was ever filed, the affidavit and motion was not properly brought into the record.</p>

<p>Amendment of Pleading. — Complaint. —Judgment. —Presumption. —Where a complaint could have been amended in the trial court so as to be in conformity with the judgment, such amendment, on appeal, will be presumed to have been made.</p> <p>Appeal. — Amount in Controversy. — Jurisdiction.—Recovery.—Amount Demanded. — Where the plaintiff below recovers and is satisfied with the amount of his recovery, and the defendant appeals, the amount in controversy is not what is sued for, but what is recovered.</p> <p>Demubkek. to Evidence. — Railroad.—Freight.—Contract to Carry. — Notice of Loss. — Sufficiency of. — Evidence.—Sufficiency to Withstand Demurrer. — A. brought suit.to recover damages for a breach of a contract of shipment, the contract being for the delivery of a car load of poultry at “team track,” Chicago. The car, when it arrived at 51st street, Chicago, was delayed at that point about nine hours, and in consequence thereof his poultry greatly shrank in weight before he could get them on market. The contract of shipment provided, as a condition precedent to the shipper’s right to recover for any damage for loss or injury to said property, that notice be given in writing of his claim to some officer of the company or its nearest station agent, before the stock is removed from the place of delivery or is mingled with other stock. The only testimony concerning notice of loss was by the shipper, which was to the effect that he notified the carrier by letter, about two weeks after the loss, as soon as he had ascertained the amount thereof. The defendant demurred to the evidence, relying upon the want of evidence in regard to notice, and the demurrer was overruled.</p> <p>Quaere, was the notice, as shown by the evidence, sufficient?</p> <p>Held, that the evidence was sufficient to withstand a demurrer, and that the notice, under the circumstances, was a sufficient compliance with the contract of shipment.</p> <p>Held, also, that it was the duty of the court, under the demurrer-to the evidence, to determine whether there was any evidence from which the jury might have lawfully inferred a reasonable compliance with the condition requiring notice.</p>

<p>Ei’om tlie "Wabasia Circuit Court.</p>

<p>Bill of Exceptions. — Presentation for Signature Beyond Time Limited,.— Not in Record. — A bill of exceptions which is not presented for signature until after the expiration of the time allowed therefor by the court, irrespective of the time when filed, is not a part of the record.</p> <p>Same. — Presentation for Signatv/re.- — Agreement to Extend Time. — Where Bill is not in Record. — On a bill of exceptions, after the certificate and signature of the judge, is the following memorandum: “It is hereby agreed that the time for filing this bill of exceptions is extended to April 1st, 1892, to give me further time to examine the same.</p> <p>“ Nelson J. Bozabth,</p> <p>“March 19th, 1892.</p> <p>“Plaintiff’s Attorney.”</p> <p>This memorandum does not purport to be an agreement to extend the time for the presentation of the bill to the judge for his signature, for the bill had been signed before the making of the agreement contained in the memorandum; and the bill, not having been presented to the judge and signed within the time limited by the court, is not in the record.</p>

<p>Criminal Law. — Indictment.—Obstruction of Highway. — Duplicity.—An indictment for obstructing public "highways is not bacl for duplicity when the act complained of affects more than one highway, but is one and the same transaction.</p> <p>Same. — Obstruction of Highway. — Toll-Gate.—Right to Collect Toll. — Mud Road. — Interference with Travel. — The right of turnpike companies to collect toll is given by statute, aud must bo exercised in strict conformity thereto, and as long as such company, or its servants, confines the keeping of a toll-gate to the exclusive purpose of the turnpike, they are guilty of no violation of the law; but when it impedes the full and unrestricted .use of other public, highways which their turnpike intersects, they violate the statute against the obstruction of public highways, and their right to maintain a toll-gate affords them no protection.</p>

<p>Raílroad. — Complaint for Damages. — Assault and Battery by Bmplmje. — Duty of Company to Protect Passenger. — Acting in iScope of Authority.— When a, Passenger. — Inability of Company. — Gist of Aeiion. — An action was brought against a railway company to recover damages for an assault and battery by one of the company’s servants. The complaint stated in substance, that the company was a duly organized corporation, owning and controlling the union depot and station at Indianapolis, and assumed control of the station and ticket offices therein, and of the gates and ways leading to the trains; that, by the rules and usages of the company, it was the duty of gatemen to stand at the gateways through which passengers must pass in going to and from the cars upon the tracks, and to inspect the tickets of persons passing through said gateways to the oars, and to prevent parties from passing through the gates, who, for any reason, onght not to be allowed to pass, etc., and to keep the passage-ways near and through the gates free from obstruction ; that the plaintiff was waiting in the station with a proper ticket, and when the caller announced the arrival of liis train, and its readiness to receive passengers, plaintiff, with others, started to go to the train, and on arriving at,said gateway, one of the gatemen, without cause or provocation, assaulted, beat, and cursed the plaintiff; that at the time of said assault, the gateman was an employe and servant of the defendant, and on duty.</p> <p>Held., that it sufficiently appears from the allegations of the complaint that the servant was acting within the scope of his employment, and that lie committed the assault while the plaintiff was properly on the master’s premises, and under the charge-of the master’s servants, and entitled to their protection.</p> <p>Held, also, that the Company owed to plaintiff the affirmative duty to protect him from the violence and insults of its own servants, and that for a breach of this duty it is liable, irrespective of the fact whether or not the servant, in the performance of the act, was within the scope of his employment.</p> <p>Udd, also, that one who has purchased a ticket and is passing at the proper time from the depot to the train, is a passenger, and entitled to the rights of a passenger.</p> <p>Udd, also, that the gist of the action vas the unlawful attack upon the appellee, within the defendant’s depot, and hy defendant’s servants; and the precise point at which the attack took place was immaterial.</p>

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

<p>Pleading. —Answer of Novation. —Sufficiency. —Partnership. —Promissory Note. —A promissory note was issued in the firm name and style of Kendall & Learning in favor of one Morrison. In an action on the note by said Morrison against said Kendall & Learning, Learning answered, that after the execution of the note he sold his interest in the firm property of Kendall & Learning to one Billington, and that the firm of Kendall & Learning was dissolved; that in consideration of the sale and transfer of defendant’s interest in the partnership property, and in the adjustment of the affairs of the partnership Kendall & Billington agreed with the defendant and with said Morrison to assume, pay, and discharge all the debts of the firm of Kendall & Learning, including the note sued on; that said Billington was then solvent and able to pay all of said liabilities; that in consideration of the promise of Kendall & Billington, said Morrison agreed with the defendant to accept the liability of Kendall & Billington in lieu of the defendant and release him therefrom, and that in consideration of the promises of Kendall & Billington, said Morrison released and discharged the defendant from liability on said note.</p> <p>Held, that the answer as one of novation is insufficient.</p> <p>Contract. —Novation. —Requisites. —Manner of Making. —Consideration.—• A novation exists where a new obligation is substituted for an old one, and may take place in the following manner: 1. Where the debtor and creditor remain the same but a new debt takes the place of the old one. 2. Where the debt remains the same, but a new debtor is substituted for the old one. 3. Where the debt and debtor remain the same, but a new creditor is substituted for the old one. In every contract of novation there are four requisites: 1. A previous valid obligation. 2. Agreement of all the parties to the new contract. 3. Extinguishment of the old contract. 4. A valid hew contract. The consideration of such a contract is the extinguishment of the old contract, and the making of the new and the extinguishment of the old contract must take place simultaneously.</p> <p>Debtor and Creditor. — Assumption of Debt by Third, Person. — Effect.—The assumption of a debt by a third person does not release the original debtor or affect the right of the creditor.</p> <p>Consideration. — Release.—Novation.—Pelease as well as novation must be supported by a valuable consideration.</p> <p>Pleading. — Answer.—Release.—Conclusion of Law. — In an answer setting up a novation, the averment that the payee did release the maker is the. statement of a conclusion of law and not a fact.</p> <p>Statute or Limitations. — Non-Residence.—Foreign Statute. — The statute of limitations in force at the time the remedy is sought governs, and, under section 297, K. S. 1881, the time during which a defendant is a non-resident can not be computed when the cause of action arises in this State, neither, in such a case, can a foreign statute be pleaded in bar.</p> <p>Same. — Subsequent Statute can not Revive. — If the time limited for commencing an action expires while the statute is in force and before suit is brought, the right of action is barred and can not be revived by a subsequent statute.</p> <p>Same. — Complaint.—When Sufficient as to.- — A complaint is good as against the statute of limitations, unless it appears therefrom or by other pleadings that the cause of action is barred by the statute and does not come within any of the exceptions.</p> <p>Harmless Error. — Intermediate Error.— Ultimate Judgment Correct. — Where the ultimate judgment is correct, intermediate errors will not work a reversal.</p>

<p>Prom the Howard Circuit Court-.</p>

<p>Bill of Exceptions. — Presentation Beyond Time Limited. — Time of Presentment. — IIovj Shown. — Geriijicate of Judge. — Where the certificate of the judge at the close of a bill of exceptions states that the bill was presented for signature on a,certain date, which was beyond the time allowed, and there is no statement in the bill that it was presented at any other or different date, such bill will not be a part of the record. The law requires that the date of presentation be stated in the bill, preceding- the signature of the judge to the bill.</p>

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

<p>Heed. — Covenant Against Incumbrance. — When in Prcesenti.— When in Futuro. —The covenant against incumbrances included in the general warranty in the statutory form of Indiana deeds is one that runs with the land, and is not in prcesenti, unless the deed was ineffectual as a conveyance, in which case the covenant would be in prcesenti, being broken as soon as made.</p> <p>Same. — Covenant Punning with Land. —How Determined. —Deed Conveying Land in Another State. — Whether or not a deed executed in Indiana, conveying land in another State, contains a covenant of seizin that runs with the land, is a question to be decided by the law of Indiana.</p> <p>Action. — Local and Transitory. — How Determined. —The common law rule that an action on a covenant running with the land is a local one has been changed by statute in this State defining local and transitory actions.</p> <p>.Contract. — Action for Breach of. — Venue.—Where an action is brought to recover damages for a breach of contract purely, the law of the State where the contract was made governs.</p> <p>'Pleading. — Sufficiency of. — Action on Breach of Covenant. — Practice.—Motion. —Jurisdiction.—Presumption.'—In an action on a breach of a covenant against incumbrances, the complaint is sufficient which states, among other things, that there was a valid and subsisting mortgage thereon for a large amount, to wit, $1,000, which was foreclosed in the proper court, .and there was an order of sale, and a sale accordingly. This sufficiently shows a valid lien. If the defendant desired more particular allegations, his remedy was by a motion to make more specific. It must be presumed that the court, in the foreclosure proceedings had full jurisdiction of the necessary parties and subject-matter, and did its duty therein.</p> <p>Mortgage. — Assumption of Payment by Grantee. — How Differs from a Pwrchase Subject to a Mortgage. — Where a person assumes the payment of a mortgage upon real estate which he has purchased, out of the proceeds of the sale of the land, he is in a different position to one who has purchased subject to a mortgage. In the former case, he becomes personally liable as soon as he acquires the necessary funds from the sale, while in the latter he does not.</p> <p>Appearance. — Defending in Name of Another. — Effect. of Judgment on Such Defendant. — Where a person appears and defends a suit in the name of the nominal defendants, for his own benefit, the person so defending is precluded by the judgment.</p> <p>■Costs. — Expenses for Defending Title.— When Allowed. — The necessary expenses for defending one’s title are properly allowed when it is shown that the covenantor had notice of the suit, or where he himself defended the action in the name of the grantee defendant.</p> <p>Evidence. — Forecloswre Proceedings.— When Admissible. — Copy of Mortgage. ■ — In an action on a breach of covenant against incumbrances, the record of the proceedings foreclosing a mortgage on the land mentioned in the deed was correctly admitted in evidence, and the admission in evidence of a copy of the mortgage certified to by the clerk of the court could work no harm; and, in such an action, the foreclosure proceedings are admissible against one who appeared and defended said action in the name of another, and as against such defendant, evidence is admissible tending to show the amount of consideration received, and the defendant’s relation to the mortgage.</p> <p>Same. — Deposition.—Possible Relevancy. — Court can not be Required to Anticipate. — Where evidence contained in a deposition might become relevant under possible phases of the case, the court can not be required to anticipate its propriety or impropriety before it is offered in evidence.</p> <p>Same. — Statements of Attorney.— When Admissible.— When not. — While the statements of an attorney are not competent in evidence to show him to have been the attorney of the defendant in a certain foreclosure proceeding, nor as showing the appearance and defense made in such proceeding, yet they might be competent for the purpose of contradicting him as a witness, where the proper foundation has been laid.</p> <p>Same. — Sufficiency of to Sustain Judgment. — That the evidence is sufficient to sustain the judgment, see opinion.</p>

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

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

<p>Demurrer. — Joint Demurrer. — Joint Assignment of Error.— When Each Musi Fail. — If either of the paragraphs of a pleading covered by a joint demurrer is sufficient the demurrer must fail, and the same principle applies to a joint assignment of error.</p> <p>Pleading —Negligence.—Gravamen of Action. — Railroad.—Allowing Eire to Escape. — Sufficiency of Complaint. — In an action against a railroad company for damages for negligently allowing .fire to escape from one of its engines and right of way, to the premises of the plaintiff, the complaint is sufficient which alleges in substance, among other things, that the defendant negligently and carelessly suffered coals and sparks of fire to escape from its locomotive engine, which set fire to dry grass, weeds, stubble and rubbish, which the defendant negligently suffered to gather and remain on its road and right of way adjoining plaintiff’s land, and, spreading to said land, burned his fences, grass, corn, and the soil of the land to a depth of from one to three feet, without the fault of the plaintiff; and the proof of the burning of any of the articles enumerated will entitle the plaintiff to a recovery.</p> <p>Same. — Contributory Negligence. — General Allegation Against.— When Sufficient. —In an action for damages, the general allegation of freedom from con-tributary negligence is sufficient, unless the fact of contributory negligence appears from the facts pleaded.</p> <p>Judgment. — On Interrogatories Notwithstanding General Verdict.• — Before a judgment should be rendered on answers to interrogatories notwithstanding the general verdict, there should be an irreconcilable antagonism between the two.</p> <p>Contributory Negligence. — Ordinary Care. — Railroad Engines. — The owner of land is not bound to use unusual precautionary measures to protect himself or his property from injury at the hands of those who operate dangerous fire-engines across or near his premises.</p> <p>Damages. — Measure of to Land Affected by Eire. — Evidence as to Value. — In recovering damages to land by reason of fire, the measure of damages is the difference in the value of the land before and after the burning; and, in such a case, evidence as to what adjoining land has sold for is incompetent ; and opinion evidence as to the difference in the value of the land is competent; but the assessor’s return of appraisement of said land for taxation is not competent evidence.</p> <p>Judicial Knowledge. — Assessment of Land. — The court takes judicial knowledge that the owners of land do not fix the value of the same for assessment.</p>

<p>Decedents’ Estates. — Claim Against. — Sufficiency as a Pleading. — Requirements of. — Claims against decedents’ estates are not to be tested by the general rules of pleading, but are on the same footing as complaints in actions before justices of the peace, and are sufficient if they apprise the defendant of the nature of the claim, the amount demanded, and would operate as a bar to another action for the same demand.</p> <p>Same. — Services in Family of Decedent. — Promise to Provide for. — Presumption. — A promise made by a decedent, to one rendering services in his family, to provide for her out of his estate, though not enforcible, is sufficient to rebut a presumption that the services were rendered gratuitously..</p> <p>Same. — Recovery for Services.— When Allowed. — Where one renders services for another under a contract express or implied, and the master dies leaving the services unpaid for, the servant is entitled to recover the value of the services out of the decedent’s estate.</p> <p>Demurrer. — Complaint.—Overruling Demurrer to Pad Paragraph.— When not Reversible Error. — It is not reversible error to overrule a demurrer to a bad paragraph of complaint, when it appears from answers to interrogatories that the verdict was based on another good paragraph.</p> <p>Assignment oe Error. — Matter Improperly Assigned. — Overruling Motion.— Cause for New Trial. — The overruling of a motion to require the jury to retire to the jury-room and answer interrogatories more fully is not good as an assignment of error, but should be assigned as a cause for a new trial.</p> <p>Venire de Novo.— When Proper. — A motion for a venire de novo can not prevail unless the verdict or finding is so defective that a judgment can not be rendered thereon.</p> <p>Evidence. — Decedents’ Estate. — Action for Services Rendered. — Value of Estate. — When Admissible. — In an action against a decedent’s estate for services, where the claim or complaint is in two paragraphs, one on account and the other on a promise by the decedent to provide for such services out of his estate, it is not error to admit evidence as to the value of the estate, when such evidence is confined by instruction to the paragraph based upon the promise to provide for the services out of his estate.</p> <p>Same. — Declarations of Deceased Person. — Claim Against Estate for Services.— Presumption. — The declarations of a decedent to the effect that he will provide out of his estate for certain services which are being rendered for him, are competent in evidence to rebut the presumption that such services were gratuitously rendered.</p> <p>Statute op Limitations. — Continuous Services. — Time of Payment not Fixed. — When Statute will Begin to Bmu. — Where services are continuous, and there is no time fixed for payment or when the contract shall end, the statute of limitations will not begin to run until the services are ended.</p> <p>Verdict. — Excessive B.ecovery. — That the amount of recovery under the verdict is not excessive, see opinion.</p>

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

<p>Bailroad. — Trespasser upon Track. — Rule as to Care Required of Company. ■ — Action for Death of Child. — The rule as to the degree of care required by a railroad company as to trespassers upon its track differs when applied to a person of mature years and to a child of tender years. As to the former, when they do not appear under disability, the company owes no duty except not to willfully injure them; but as to the latter the company is under obligation to use care to prevent an injury, after their presence is discovered.</p> <p>Peeading. — Complaint for Damages. — Contributory Negligence.— When Sufficiently Negatived. — The general allegation of freedom from contributory negligence is sufficient, unless the facts averred affirmatively show such negligence.</p> <p>Same. — Action by Mother for Death of her Child. — Necessary Allegations as to Father. — In an action by the mother for the death of her child, the complaint is insufficient unless it shows the father either to be dead, to have deserted his family, or to he imprisoned.</p> <p>Demubbeb. — For Want of Facts. — Sufficient When Cause of Action is not Shown m Plaintiff. — A demurrer to a complaint for want of sufficient facts is well taken where the facts alleged do not show a cause of action in the plaintiff, and, where several plaintiffs join, the complaint must show a# cause of action in all, or it will be bad on demurrer for want of facts.</p>

<p>Railroad. — Passenger.— What Constitutes. — Assisting Another to Board a Train. — When Person Assisting is a Passenger. — Where a father assisted his invalid daughter on the cars at a station, with the agreement and understanding- with the company that the cars would stop long enough to allow him to place his daughter thereon, and to alight therefrom in safety, the relation of carrier and passenger existed between the father and the railroad company, while the father was assisting his daughter thereon, and departing therefrom.</p> <p>Same. — Passenger.— Degree of Care Due to by Carrier.— When Duty to Passenger finds. — A carrier is hound to exercise the highest degree of care to secure the safety of its passengers, and is responsible for the slightest neglect to them, and the duty of the carrier is not ended until the passenger is safely landed at this point of destination, if by the utmost care it can be done.</p> <p>Contributory Negligence. — Pleading.— When General Averment Against not Sufficient. — In an action for damages, the general averment of freedom from negligence is sufficient, unless the court can say as a matter of law from the facts pleaded that the plaintiff contributed to his injury.</p> <p>Same. — Directing Passenger to Alight while Train is in Motion. — Negligence a Question, of Fact. — Where a conductor or a biakeman on a train directs a passenger to alight from the train while in motion, the question as to whether or not the passenger, in alighting from the train in obedience to the direction or, command, is guilty of contributory negligence in so doing, depends upon the particular circumstances of each case.</p>

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

<p>Appeai. — Assignment of Errors. — Motion for a New Trial. — Not Brought into Becord by Bill of Exceptions.- — No Question Presented on Appeal. — Where the only questions sought to be raised on appeal arise upon a motion for a new trial, and there is no bill of exceptions bringing such matter into the record, no question is presented to the Appellate Court. The statements in a motion for a new trial do not, of themselves, constitute evidence of their truthfulness, but such facts, to be potent, must appear in a bill of exceptions.</p>

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

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

<p>Pleading. — Recoupment.— Counterclaim.- — Matter that May be Pleaded as Either. — Defendant May Elect. — Where the same matter may be pleaded by way of recoupment or by way of counterclaim, the defendant has the right to elect which he will plead.</p> <p>Same. — Counterclaim.—When, Rightfully Pleaded. — In order that a counterclaim may be rightfully interposed, there must be some legal or equitable connection between it and the complaint.</p> <p>Same. — Right to Plead Counterclaim. — Where the plaintiff brings before the court a subject-matter of controversy in which the defendant has rights which can only be secured by asking affirmative relief, he may file a counterclaim, and this right to plead does not depend alone on the allegations of the complaint or the contract relations of the parties.</p> <p>Same. — Matters ex Contractu and ex Delicto.— When One May be Pleaded Against the Other. — Matters ex delicto may bo pleaded to matters ex delicto, and matters ex contractu to matters ex contractu,, but matters ex delicto can not be pleaded to matters ex contractu, and nee versa, unless it appears that the matters stated in the complaint, and the counterclaim arose out of the same transaction, and are related to the subject of controversy.</p> <p>Same. — Merger of Account Into Judgment. — Right to Plead Counterclaim to Judgment. — The merger of an account into a judgment does not preclude the defendant from pleading a counterclaim to an action on the judgment.</p> <p>Same.— Bach Pleading Must be Sufficient of Itself. — Rule as to Set-off. — A pleading must be complete within itself without aid by reference to other pleadings, and the samo rule applies to set-off's as to complaints.</p> <p>Same. — Joint Contract. — Death of Party. — Set-Off.—Necessary Averments.— In an action against tbe joint makers of a contract, an answer by way of set-off is invalid, where one of the joint makers has died, which does not aver the death of such joint maker.</p> <p>Parties. — Misjoinder of Parties Defendant. — Demurrer.—In an action on a joint contract, all the joint makers must be made parties defendant, and a failure to so join them is cause for demurrer for misjoinder of parties. Contract. — Joint.—Death of One Party. — Interest Vests im the Other. — A. joint contract is an entirety, and if one of the parties to it dies, the whole interest vests in the survivor:</p> <p>Same. — Merger of Simple into one of Record. — Judgment.—What Defenses Cut off. — Where a simple contract has been merged into a contract of record by judgment of a court of competent jurisdiction, all defenses that might have been interposed to the original action are conclusively shut off.</p> <p>Warranty. — General.— Breach of.— Necessary Averment. — Motion to Make Specific. — A general warranty may be met by a general averment of its breach, and if the opposite party wishes to be informed of the particulars of the breach, his remedy is by motion to make more specific.</p>

<p>Appeal. — Practice.-—-Sufficiency of Evidence. — Bill of Exceptions. — Before the sufficiency of the evidence to sustain the verdict can be considered on appeal, it must affirmatively appear over the signature of the trial judge that the bill of exceptions contains all of the evidence. 'The bill of exceptions preceding the formal conclusion, should contain the words: “And this was all the evidence given in said cause.”</p> <p>Master, and Servant. — Negligence.—Boy.—Dangerous Task. — A master who sets an ignorant boy,to work at a special and dangerous task, without previous instruction, and with knowledge that such boy has not the skill and experience to do it safely, is guilty of culpable negligence, and liable for injury resulting to such boy in his efforts to perform the task in obedience to the master’s direction, unless the proximate cause of the injury is the result dp-such- boy’s contributory negligence.</p> <p>Same. — Contributory Negligence. — In such case, the fact that the boy might, by the use of his eye-sight, have seen the danger, or, by the use of his reasoning faculties, have realized and avoided it, is not sufficient, under the circumstances, to enable the court to say, as a matter - of law, that he was guilty of contributory negligence.</p> <p>Same. — Excessive Damages.- — The Appellate Court will not reverse the judgment of the trial court for refusing a new trial on the ground of excessive damages, unless they appear at first blush to be outrageous and excessive, or that some improper reason was taken into account by the jury in determining the amount.</p>

<p>•From tlie Porter Circuit Court.</p>

<p>Appeal from the Daviess Circuit Court.</p>

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

<p>Erom the Vigo Superior Court.</p>

<p>Damages. — Railroad.—Change of Grade. — Intersecting Highway. — •Conformation of to Change of Grade. — Approaches.—Injury to Abutting Land. — Where a railroad company raises the grade oí its tracks, and, in order to restore an intersecting highway to its former state as required by section 3908, R. S. 1881, it fills and raises the grade of such street beyond its right of way, and in front of the property of a private, abutting land-owner, thereby materially interfering with such owner’s ingress and egress to and from his property, the railroad company is liable to him for the damage done. The approaches to a crossing, whether extending beyond the right of way or not, are a part of it.</p> <p>Same.---Effect of Grant of Right of Way. — A grant of the right of way for the railroad in such case does not carry by implication the right to raise the street beyond the limits of the right of way, nor release the railroad company from the damages accruing to the abutting land-owner.</p> <p>Same. — Effect of Statutory Authority to Change Grade. — The fact that the change of the grade of the street was made to conform to the voluntary change of grade of the railroad, under authority of, and in compliance with, a statute, will not relieve the railroad company from liability.</p>

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

<p>Erom the Vanderburgh Superior Court.</p>

<p>Assignment. — Promissory Note. — Assignment of an Interest. — Action.— Joinder of Assignor and Assignee. — Statute Construed, Section 276, P. S. 1881.— An undivided interest in a promissory note may be assigned, and the assignee may join in an action thereon with the assignor, when the complaint sets up the assignment; and where the assignor assigns only an interest, and retains an interest, and he and the assignee join in bringing the action, section 276, B. S. 1881, does not apply, the assignor being estopped to deny the allegations of the complaint.</p> <p>Pkomissory Note. — Indorser.—Assignor.-—Liability of Bach. — Warranty.— An indorser of a promissory note warrants the liability and ability of the payor to pay, while an assignor only warrants the genuineness of the obligation, and that it is unpaid.</p>

<p>Pleading. — Sufficiency.—Existence of Fact by Necessary Implication. — Where a complaint does not state a material fact directly, but such fact is shown to exist in the pleading by necessary implication, the complaint is sufficient as to such fact.</p> <p>Instructions to Jury. — Irrelevant Instruction. — When Harmless. — The giving of an instruction, a part of which is irrelevant to the case, will not amount to reversible error, when, considered as a whole, it could have done nq harm to the complaining party.</p> <p>Railroad. — Passenger.— Duty of Company to Protect.— Fellow-Passenger.— Injury by. — It is the duty of a carrier to protect its passengers from violence, even from fellow-passengers, when it can be done by proper care.</p>

<p>Pleading.— Wife Against Husband for Support. — Sufficiency of Complaint.— Words and Phrases. — “Abandoned.”—“Deserted."—In an action by a wife against her husband for support of herself and infant children in her charge, an allegation in the complaint that the defendant had “abandoned this plaintiff,” is sufficient, being equivalent to “deserted,” as used in the statute.</p> <p>Same. — Sufficiency of Complaint. — Renouncing Marriage Covenant. — In such an action it is not sufficient to allege in the complaint “that the defendant has renounced the marriage covenant.” Such an allegation is too general. The act or acts claimed to have amounted to such renunciation should be alleged.</p> <p>Judgment. — Argument and Reasoning not Part of. — Constitutes no Precedent.— The process of reasoning or the method by which a court reaches a certain conclusion is no part of the judgment, and does not constitute a precedent.</p> <p>Alimony. — Desertion.— What Amounts to. — Where a husband drives his wife away, or his conduct toward her is such as to compel her to leave his domicile for safety, he is the deserter, and is liable to her for support, unless there is cause for such conduct, Which would amount to a cause for divorce from her.</p> <p>Statute oe Limitations. — Duty of Husband to Support Wife a Continuing One. — Effect on Action. — The obligation of a husband to support his wife and infant children is a continuing one, as long as such relation exists, and the statute of limitations can not affect the right of action by the wife for such support.</p>

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

<p>Exemption j?bom Execution. — Action on Promissory Note. — Set-Off.—Reply of Exemption. — An insolvent debtor, who is plaintiff in an action on a promissory note, may successfully claim such note as exempt from execution or other final process, and he may do so by way of reply to an answer of set-off to the note.</p>

<p>From tie Marion Superior Court.</p>

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

<p>Pleading. — Set-Off Replied to Set-Off. — Sufficiency of Reply.■ — Assignment.— Notice. — Where a set-off is replied to an answer of set-off, the reply is insufficient which does not show that the matters pleaded in reply accrued before the assignment of the account offered as a set-off by the answer, or before the defendant had notice of the assignment.</p>

<p>Erom the Tippecanoe Superior Court.</p>

<p>Telegraph Company. — Delivery of Telegram.— Diligence to Find Person. Addressed. — Negligence.—Where a telegram was addressed to Thomas J. Newhouse, Vandalia freight yards, Torre Haute, Indiana, and a messenger took the telegram to said yards, but failed to find said Newhouse there, and was informed by the assistant yardmaster in charge thei-eof that no such person was employed in or about the yards, and that he did not know any person by that name, which statements were concurred in by others present, it was not a sufficient delivery of the message to leave it with the yardmaster, who made some effort to, hut failed to, deliver it, but the company should have made further search for Newhouse, whose name appeared upon the city directory, and who was known to the postmaster, and to several other persons in public places in the city, and whose whereabouts could have been ascertained.</p> <p>Same. — Telegram.—Addressed in'Care of Another. — What Amounts to. — Judicial Notice. — It can not be said in this case that the message was directed to Newhouse, in care of the agent of the freight yards, as freight yards are not judicially known to be places where telegrams may be left, when addressed there, without further inquiry when the person addressed is not found there.</p> <p>Same. — Telegram. —Negligent Failure to Deliver. — Menial Anguish and Suffering. — Recovery for. — Where the only pecuniary loss sustained by a negligent failure to deliver a telegram is the cost of the message, there may be a recovery, in addition to such cost, for the mental anguish and suffering occasioned by such failure to deliver, and the amount of recovery must necessarily be left largely to the judgment of the jury under the direction of the court, and a judgment will not bo reversed because excessive, unless it appears to be such at first blush.</p> <p>Instructions to Jury. — Damages.—Special Verdict.— When Error to Refuse to Give. — It is error for the court to refuse proper instructions as to the measure of damages, where it is the duty of the jury to assess damages, • even though a special verdict is asked for, provided all the legal rules relative to the request for, and submission of, such instructions are complied with.</p>

<p>Erom the Howard Circuit Court.</p>

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

<p>Evidence. — Admission in Evidence Of Record of a Cause. — Competency.—Action for Attorney’s Fees. — Competency in Evidence of Transcript. — In ail action by an attorney at law for professional services rendered in a certain case, the record of the cause of action is admissible in evidence as a part of the history of the case, showing its nature, the amount in controversy, the amount of recovery, and the services rendered; and, where the cause has been appealed, the transcript of the record is admissible in evidence, for the reason above stated, to show the extent of the services rendered.</p> <p>Same. — Judgment in Evidence. — When Admissible. — Warn! of Mutuality. — In such an action the judgment is admissible in evidence as a part of the record, not being subject to the objection of want of mutuality, as such rule only applies when it is sought to bind a party by the recitals of the judgment.</p> <p>Same. — Record Evidence. — Irregularity in Obtaining. — Presumption of Legality. —Competency.—Matter of record competent as evidence can not he questioned or excluded because of the irregularity in the manner hy which it has been obtained, the presumption being in favor of legitimacy of possession until the contrary appears.</p> <p>Instructions to Jury. — Irrelevancy.—Evidence Tending to Support. — An instruction correct in point of law will not be held to have been given error neously, as being irrelevant, when there is some evidence tending to support it.</p> <p>Verdict. — Presumption of Correctness. — A judgment will be presumed to be correct until the contrary appears.</p>

<p>Evidence. — Declarations and Admissions.— When Competent. — Contract.— Bond.- — Issues, General Denial and Non Est Factum,. — Fraud.—Principal and Agent. — Suit was brought on a contract and bond for the carrying oi mail. The papers evidencing the contract were signed and completed in all respects, except the amount of compensation for such services. The' papers in this condition were delivered to the employer, with authority from the employe to insert the amount agreed upon, $420. The employer, without the consent of the employe, inserted the amount of $320, which the employe repudiated, and refused to carry mail thereunder; and thereupon the employer brought suit on the bond for damages. Issues were formed by pleading answers of genera] denial, and non est factum. The defendant was permitted to prove, over objection of plaintiff, certain statements and admissions made by the plaintiff concerning the amount the defendant was to receive for his services according to the agreement.</p> <p>Held, that the evidence under the issues, as between the parties to the contract, was competent, and that any legal evidence was competent which tended to prove that the instruments, as they appeared in the complaint, were not executed by them.</p> <p>Held, also, that the employer, for the purpose of inserting in the instruments the amount of compensation for the services, was the agent of the employe, and that they had no legal existence, not having been executed according to agreement.</p> <p>Held, also, that the court did not err in rendering judgment for the defendant.</p>

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

<p>Parties. — Malicious Prosecution. — Action for Damages.— When Several May Join as Parties Plaintiff. — Pule as to.' — Two or more persons who have been maliciously prosecuted may join in an action for damages for expenses jointly incurred in defending the same, as for attorney’s fees, etc.; but, as a rule, such actions can not be jointly maintained, as in such cases there is generally a separate injury inflicted, for which only a separate action can be maintained. Loss of time, hotel and livery bills, do not appear to be joint expenses in such a case.</p> <p>Pleading. — Misjoinder of Parties Plaintiff. — Demurrer for Want of Facts.— Sufficiency. — Joinder of Husband and Wife. — A complaint which does not show a cause of action in all the parties plaintiff, is bad on demurrer for want of sufficient facts, except where the husband joins with his wife in an action for injuries to her person or character.</p> <p>Statute op Limitations. — Statement of Claim m Gross. — When Limitation Will not Affect. — Presumption.—“Where a claim for attorney’s fees is stated in gross, and no motion is made to have the claim itemized, the court can not say that judgment rendered thereon is erroneous because a part of the claim may have been barred by limitation. Every reasonable presumption will be indulged in favor of the correctness of the action of the trial court, unless error is affirmatively made to appear by the record.</p>

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

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

<p>Libel. — Classes of Such Actions. — Complaint.—Necessary Averments and Proof in Each Class. — Privileged Communications. — There are two classes of actions that may be maintained for libel, viz. : 1. Where the occasion is not one of privilege. 12. Where the occasion is one of qualified privilege. In the first of these classes it is only necessary to allege and prove the. publication of the libelous language by the defendant concerning the plaintiff; but, in the second class, where the complaint shows upon its face that the communication was a privileged one, it is incumbent on the plaintiff to allege in express terms that defendant acted maliciously, or aver and prove facts sufficient to negative the rights which accrue to-the defendant on account of such privilege. There is no redress for a. libel written under circumstances of absolute privilege.</p> <p>Same. — Privileged Communication. — Question of Law. — As to whether a communication is a privileged one, is a question of law for the court.</p> <p>Same. — Privileged.Communication.—Onus Probandi. — Where the communication is a qualified privileged one, the burden of proof is on the plaintiff' to prove actual or express malice on the part of the defendant.</p> <p>Same. — Complaint.—Allegation of Malice. — Force of Such Allegation. — Theaverment in an action for libel that the defendant published the “malicious ” language complained of, is equivalent to saying that the language was published without sufficient excuse, and is not sufficient to show express or actual malice.</p> <p>Same.- — Privileged Communication. — Matter of Defense. — When Need not be-Pleaded. — The fact that a communication is a privileged one is, ordinarily, a matter of defense, but where such fact is shown by the complaint, it will not be required to be pleaded in defense.</p> <p>Quaere, in an action for libel on a qualified privileged communication, is it necessary to allege and prove a want of probable cause ?</p>

<p>Erom tbe Elkbart Circuit Court.</p>

<p>Appeal from the Marion Circuit Court.</p>

<p>Erom the Hamilton Circuit Court.</p>

<p>From- tlie Whitley Circuit Court.</p>

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

<p>Municipal Corporations. — Power to Malee Contracts. — Must Take Knowledge of Fiduciary Character of Public Officers. — In dealing with public officers, all persons are bound to take notice of their official and fiduciary character, and know that they can only bind the corporation for which they act by contracts authorized by law, and where the manner of exercising a power is prescribed by statute, it must be complied with, or the act will be void. Municipal corporations have power to make contracts in aid-of their local government, and the test of the validity of such a contract is whether or not the object to be accomplished will aid in such government. A municipal corporation may make contracts generally within the scope of their authority, in the absence of a statutory method to be pursued.</p> <p>Same. — Power to Make Contracts. — Contract to Drain Lands of Private Person Void.— Governmental Functions Must Remain Free. — The governmental functions and powers of a municipal corporation must remain free and untrammeled to be exercised for the benefit of the inhabitants as the emergencies may arise, and under this rule a municipal corporation can not make a contract to furnish drainage for the lands of a private person, such a contract, being a limitation on the governmental functions, is . absolutely void.</p> <p>Same. — Drainage.—Ditch.—To Properly Construct and Keep in Repair is a Statutory Duty. — Pleading.—Action for Breach of Should Declare in Tort.— Where a complaint against a municipal corporation, for failure to properly construct a ditch and keep it in repair, declares upon a contract such action must fail. The complaint should declare in tort for breach of a statutory duty.</p>

<p>Contributory Negligence. — Railroad Crossing. — Injury.—Diligence on Part of Traveler. — Where a teamster with his horse and wagon, about to enter upon a railroad crossing, waited at the foot of the approach of such crossing until an approaching freight train had passed from the west, and where it further appears, that before the freight train had passed, and after the freight train had passed 150 feet, and while he was yet at the foot of the approach, about 40 feet distant from the tracks, he looked both east and west, and listened for trains, and saw and heard none except the freight; that after the freight train had passed 150 feet, he started to cross the tracks, and after he had crossed the south track and was entering upon the north track, he discovered a passenger train approaching •on the north track from the east, 390 feet distant, al a speed of 40 miles an hour, without having given any signals; and that, before he could cross the track his wagon was caught and the injury occasioned, the passenger ¡train not being visible from the crossing more than 700 feet because of a curve in the tracks, the Appellate Court can not say as a question of law, on these .facts, which the evidence tends to establish, that the teamster was guilty of contributory negligence.</p>

<p>Erom tlie Monroe Circuit Court.</p>

<p>Contributory Negligence. — Averment of Freedom from Negligence.— When not Broad Enough. — Insufficiency of Complaint. — In an action by an employe against a stone-quarry company for injuries incurred while in the line of his employment, which was the management of a “traveler,” the only averment in the complaint of freedom from contributory negligence is that in plaintiff’s attempt to readjust a certain rope, with the aid of a co-employe, and without any fault of plaintiff or said employe, said rope suddenly became loose and disentangled, thereby causing the same to jerk, swing, and vibrate violently, striking plaintiff about the head, and causing the injuries complained of. This averment of freedom from negligence does not refer generally to the means and causes of the injury, but to the loosing of the rope, which may be only one of several causes of the injury; and it not clearly appearing, from the facts alleged in the complaint, that the plaintiff was free from fault, the complaint must be: held to be insufficient.</p>

<p>Supreme Court. — Jurisdiction.—Amount in Controversy. — Where the amount in controversy on appeal exceeds S3,500, the jurisdiction is in the Supreme Court.</p>

<p>.Appeal. — Appellate Court Practice.— When Finding of Trial Court will not be Dislv/réed. — A finding of the trial court will not be disturbed on appeal -wihen the evidence is conflicting.</p> <p>Paymemt. — Accepting Promissory Note on Pre-Existing Debt. — Presumption of Extinguishment. — How Rebutted. —Where a promissory note, governed by the law merchant, is taken on an antecedent debt, the presumption of law arises that the antecedent debt has been extinguished thereby, and ■tin® note taken in payment, but this presumption may be rebutted by ■showing an agreement that the note should not operate as an extinguish'ment of the pre-existing debt, and the intention of the parties is a question of fact, and, if the legal presumption is overcome thereby, there i should be a.finding to that effect.</p>

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

<p>County. — Liability for Unsafe Condition of Bridge. — Counties must construct, and maintain bridges in a reasonably safe condition, and this obligation obtains although special duties with reference to such bridges have been imposed, upon other officers than the board of county commissioners.</p> <p>Bridges. — Approaches a Part of. — Luty to Maintain in Safe Condition. — Bailings. — The approaches to a bridge are a part of it, and the county is in duty hound to construct and maintain them in a reasonably safe condition ; and where horses become frightened while on an approach, and back a vehicle off the side of the approach, causing injury, the mere absence of railings and thé negligence of the county to maintain them, would not make the county liable, unless the presence of suitable railings would have prevented the accident.</p> <p>Same. — Approaches.—Bailings.—Known Danger. — Degree of Care. — If a traveler knows that the approaches to a bridge are not provided with railings, and consequently unsafe, he is not required to forego the use of the bridge, hut he must use care commensurate with the known danger.</p> <p>Negligence.— When a Question of Law. — Negligence may become a question of law where the fact or facts recited lead inevitably to hut one conclusion, and that of negligence.</p> <p>Same. — Two Proximate Causes, One Innocent, the Other Negligent. — Liability.— Where there are two proximate causes of an injury, one innocent and the other the result of negligence, the person from whom the negligent act arises will be responsible in damages to the person injured, who is himself without fault.</p> <p>Contributory Negligence. — When a Question of Law. — Bridges.—Where a person knowingly enters upon a bridge which is so dangerous that to enter thereon would amount, to contributory negligence, regardless of the degree of care used, such negligence becomes a question of law.</p> <p>Evidence. — Negligence.—Known Danger. — Degree of Care. — Conversation.— In an action for injuries sustained because of a defective bridge, and where the plaintiff had testified that his horses, which had become frightened and backed off the bridge, were gentle, it was error not -to permit the defendant to prove a conversation between the plaintiff and his wife, with reference to the team, in which she said,- in substance, that she did not want to go home that night because the team had acted badly on their way over, and that she thought it dangerous to go under the circumstances. This evidence was admissible to determine whether or not plaintiff had used care commensurate with the known danger.</p> <p>Parties. — Defective Bridge. — Damages.—Board of Turnpike Directors. — Not a Corporate Body. — In an action for injuries received by reason of a defective bridge which was constructed as a part of a free gravel road, the board of turnpike directors can not be made a party defendant, as such board does not exist as a separate corporation which can be brought into court.</p>

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

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

<p>Assignment oe Errors. — Joint Assignment. — Failure of Assignment. — Where an assignment of error includes the giving of several instructions, unless all the instructions are erroneous, the assignment must fail.</p> <p>Inste cjctions to Jury.— When Duty of Court to Indicate What Instruction will be Given. — Assignment of Error Unavailable. — An assignment of error that “the court erred in giving instructions Nos. 10 and 11, as asked by the plaintiff', which instructions were handed to the court, and were not seen by the defendant or his counsel until the argument to the jury had begun,” can avail nothing, in the absence of a showing by the record that the court was requested to indicate what instructions it would give, as provided by section 534, K. S. 1881.</p> <p>Marriage Contract. — Breach of. — Matters in Mitigation, in Bar. — How Pleaded. — How Proven. — Evidence.—In an action for breach of a marriage contract, all matters which go to the mitigation of damages are admissible in evidence under the general denial; but all matters relied oil in bar of the action must be pleaded specially.</p> <p>Same. — Matters in Mitigation. — Physical and Mental Condition. — Evidence.— In such an action, any condition of mind or body which renders a man less fitted to fill the position of husband, or a woman less fitted to fill the position of wife, may bo given in mitigation.</p> <p>Same. — Evidence.—Cumulative.—Admission.—State of Health. — In such action, where the fact that the plaintiff' is afflicted with epilepsy is admitted, and the fact of long courtship and intimate knowledge of the defendant as to plaintiff’s state of health is in evidence, it was not error to exclude testimony which shows the frequency of fits, as such evidence would be merely cumulative.</p> <p>Evidence. — Intent, Motive, Belief. — When Admissible. — When the intent, motives, or belief of a witness become material, in a case, ho may testify to them.</p>

<p>Erom the Roble Circuit Court.</p>

<p>Life IítsuiíAnce. — Assessment Plan. — Bi-Monthly Pools. — Matured Claims; Jfow Paid. — Contested Claims. — Action on Judgment. — Merger of Defenses in Judgment. — Where a life insurance company, doing business on the mutual, or assessment, plan, issued a policy for $1,000, and it was provided-in the contract of insurance, that each calendar year should be divided into six bi-monthly periods, designated as pools; that shares maturing shall he paid with the pool of the months in which the proofs of death maturing the same are approved by the society, and in case any shares, mature, the payment of which is contested by the society, and a judgment is rendered in favor of the plaintiff, said shares shall he placed in, and paid with, the pool then forming, the policy, if a valid and subsisting claim, is entitled to he paid out of the fund created and set apart therefor at the time of the intestate’s death; and, where a judgment is. obtained for the full amount of such claim, and suit is instituted on such judgment, it is not sufficient for the company to answer, that the claim was rejected because it believed the claim to be fraudulent and unjust, and that the judgment should ho paid pro rata out of the pool forming when the judgment was rendered, which pro rata share would amount to $260, and no more; that defendant had repeatedly offered to pay plaintiff said sum, hut had as often been refused, and that defendant brings said sum into court and offers to allow judgment to be entered against it for such sum and costs and costs accruing, the amount which the plaintiff should recover was a question for decision in the original action, and all matters of defense, as to any or all of such amount, were merged in the judgment in that action.</p> <p>Quaere, can a condition in a contract of insurance, which undertakes to vary the amount the beneficiary shall receive in satisfaction of a judgment, as by making the amount of payment depend upon future contingencies, be enforced ?</p> <p>Same. —Property Bights not Abridged by Arbitrary Action of Company. — Courts’ Jurisdiction.. — .Under such a policy, the company can not abridge or destroy the property rights of a member, by the arbitrary decision of .its officers that a claim is invalid. Such act would be an infringement upon the functions of the courts, and therefore invalid.</p>

<p>Erom the Marion Superior Court.</p>

<p>Judgment. — Non Obstante Veredicto. — Exception to, How Saved. — Evidence Can Not Aid.- — An exception to the overruling of a motion for a judgment non obstante veredicto need not be saved by a bill of exceptions, and the court can not look to the evidence in aid of such question.</p> <p>Same. — Motion for, Non Obstante. — Interrogatories and Answevs. — When Special Finding Will Prevail. — Presumptions.—The purpose of interrogatories and answers is to test the correctness of the general verdict, and if the two áre so inconsistent that both can not stand on any reasonable hypothesis, the special findings will prevail. Every reasonable presumption will bo indulged in favor of the general verdict, and nothing will he presumed in favor of the special findings; and if the answers to interrogatories, or the special findings, contradict each other, the general verdict will prevail'.</p> <p>Contxubutoby Negligence. —Railroad. —Highway. —Dangerous Crossing. — Degree of Care Required. — A traveler upon a public highway is not required to forego the use of a railroad crossing because it has been rendered highly dangerous by the company, and he is exonerated from contributory negligence, if ho uses that degree of care which is commensurate with the perilous surroundings, and is injured.</p> <p>Same. — Public Highway. — Railroad Crossing. — Collision of Traveler with Cars. —Presumption of Contributory Negligence. — Where, a traveler on a public highway is injured on a railroad crossing, by coming into collision with a train of cars, it will he presumed that he was guilty of contributory negligence,’ and, in an action for damages, this presumption must be overcome before a recovery can be had.</p>

<p>Criminal Law. — Indictment.—Surplusage. — Motion to Quash.- — Imperfect, Statement of Time (“A. D., 189 — ”).—An indictment for malicious trespass was regular in every other particular, except it began as follows: “The grand jurors for Boone county, in the State of Indiana, duly and legally empanneled, charged and sworn in open court, at the November term of the Boone Circuit Court of said State for the year, A. D., 189 — , to inquire,” etc. The statement that the grand jury was empanneled in the year, “ A. D., 189 — ,” being immaterial, may be treated as surplusage, and such imperfect statement will not render the indictment bad on motion to quash.</p>

<p>Appeal. — Appellate Court Practice. — Sufficiency of Evidence. — When JSTo Ques-tion Presented.. — Where the only question relied upon on appeal is the sufficiency of the evidence to sustain the finding of the trial court, no question will be presented, that can be considered, unless all the evidence ■ is in the record.</p> <p>Bill op Exceptions. — Requisites.—Insufficiency.—A bill of exceptions purporting to contain the evidence introduced on the trial-of the cause wilt, be insufficient, unless it contains the certificate of the judge that it contains all the evidence given on the trial, and even then it will be insufficient if it appears, upon the face of the bill, that it does not contain-, all the evidence.</p>

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

<p>Variance.' — Between Pleading and Proof. — When Immaterial. — Amendment of Pleading. — Presumption.—Where a complaint alleges that an agreement for the restoration of a ditch was entered into by A. and B., and the evidence discloses that the agreement was entered into by A. and the ancestor, deceased, of B., there is no such material variance between the pleading and the proof as to work a reversal of the judgment; B. being in direct privity with his ancestor, the variance could have been obviated in the trial court, by amendment, and that will be presumed to have been done.</p> <p>Nuisance. — Continuing.—Successive Actions for Damages. — Obstruction of Ditch. — The obstruction of a ditch in which a party has an easement for-the drainage of his lands constitutes a continuing nuisance, and successive actions for damages may be maintained because of such continuance.</p> <p>Same. — Existing Nuisance on Band- When Purchased. — Liability of Purchaser. —Bequest to Abate. — The doctrine that one purchasing land with a nuisance already upon it is not to he held liable until requested to remove it, can not he invoked for the benefit of one who was instrumental in creating the nuisance.</p> <p>Easement. — Servitude Created During Unity of Tide. — When Bums with the Land. — Where land is held under unity of title, and while so held an obvious servitude which is apparently permanent is imposed on one part in favor of another, which servitude exists and is reasonably necessary for the fair enjoyment of the dominant estate at the time of the severance of title, then such easement runs with the land, and the purchaser takes his title with the servitude.</p> <p>Pleading. — Counterclaim.—Several Interests of Joint Plaintiffs. — Where two-defendants answer jointly by way of counterclaim, which shows upon its. face that the claim is not a joint hut several one, the counterclaim will be bad on demurrer for want of facts. The same rules of pleading apply to counterclaims as apply to complaints.</p>

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

<p>Ei’om tlie Marion Circuit Court.</p>

<p>Appeal from the Noble Circuit Court.</p>

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

<p>Appeal from the Clark Circuit Court.</p>

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

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

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