Volume 63 — Indiana Appellate Court Reports

<p>1. Appeal. — Waiver of Error. — Briefs.—Failure to Set Out Proposition in Points and Authorities. — Alleged error is waived on appeal by failure to set out the proposition in appellant’s brief under the points and authorities, p. 4.</p> <p>2. Master and Servant. — Employers’ Liability Act. — Constitutioiuality. — Tlie Employers’ Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) is constitutional, p. 4-</p> <p>3. Master and Servant. — Injuries to Servant. — Action under Statute. — Complaint.—Sufficiency.—Where the complaint in an employe’s action for personal injury alleged facts to show that the defendant was a corporation employing more than five men; that at the time of the injury plaintiff was acting in the line of his employment and was, in obedience to his foreman’s order, to which order he was bound to conform, about to remove certain timbers from a building to another part of defendant’s yard, when he was struck by a timber which was pushed out of a window by other of defendant’s employes across an alley through vjihich plaintiff was required to pass in carrying out the foreman’s order, and that at the time such order was given the foremafi knew that timbers were being frequently shoved across the alley, so that it was dangerous to pass through the same, such complaint states a cause of action within the provisions of the Employers’ Liability Act of 1911 (Acts 1911 p. 145, §8920 et seq. Burns 1914). p. 4.</p> <p>4. Appeal. — Review. — Errors Assignable on Review. — W7teii Waived. — Statute.-—Under §344 Burns 1914, Acts 1911 p. 415', pro- . viding that whore a demurrer to a complaint is filed £or want of facts, a memorandum shall be filed therewith stating wherein such pleading is insufficient and that defects not questioned in such memorandum shall be deemed waived, and under §348 Burns 3914, Acts 1911 p. 415, providing that when objection is not taken by answer or demurrer to any of the matters enumerated as grounds for demurrer, except joinder of causes, which do not appear on the face of the complaint, such objection shall be deemed waived,, an assignment of error that “the complaint * * * does not state facts sufficient to constitute a cause of action against appellant” presents no question for review on appeal, p. 5.</p> <p>5. Master and Servant. — Injuries to Servant. — Verdict.—Ansivers to Interrogatories. — In an employe’s action for personal injuries under a complaint stating a cause of action within the provisions of the Employers’ Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) answers to interrogatories supporting the averments of the complaint are not in irreconcilable conflict with a general verdict for plaintiff, even though such answers tend to establish plaintiff’s assumption of risk and contributory negligence while obeying his superior’s command, since the Employers’ Liability Act eliminates the defenses of contributory negligence where the injury complained of resulted from the employe’s obedience to his superior’s command, and that the inherent dangers of the employment contributed to the injury, p. 5.</p> <p>C. Master and Servant. — Employers’ Liability Act. — Contributory Negligence of Servant. — Compliance with Command. — In an employe’s action for personal injuries, the foreman’s order to plaintiff to carry timbers from defendant’s building to the yard, obedience to such order necessitating plaintiff’s passing through an alley where he was injured, was a sufficiently specific direction to bring the case within the purview of the Employers’ Liability Act of 1911 (Acts 1911 p. 145, §S020 et seq. Burns 1914), abolishing the defense of contributory negligence where the injury complained of results from the employe’s obedience to the command of a superior, p. 6.</p>

From Marion Superior Court (96,936); John J. Rockford, Judge. Action by Allen W. Hewitt against The Brownstown Water and Light Company. Judgment for plaintiff, and defendants appeal. Subsequent to the filing of the original transcript appellant filed an additional transcript, and appellee moved that it be stricken from the files of the court.

<p>From Owen Circuit Court; James B. Wilson, Judge.</p> <p>Action by William IT. Guthrie against Charles Lewis and others. From a judgment for plaintiff, the defendants appeal.</p>

<p>1. -Appeal. — Waiver of Brror. — Briefs.—Alleged error in the ruling of the trial court on the demurrer to the complaint is waived on appeal by appellant’s failure to state any point or proposition relating thereto, or to mention or discuss the same in his brief under the heading of “Points and Authorities,” as required by the fifth clause of Rule 22 of the Appellate Court, p. 17.</p> <p>2. Appeal.- — Transei'ipt.-—Motion for a New Trial. — No question is presented for review on appeal by an assignment of error that the trial court erred in overruling defendant’s motion for a new trial, where such motion was not made part of the record by setting it out in the transcript, p. 17.</p>

<p>1. Appeal. — Waiver of Error.- — Briefs.—Alleged error in overruling the demurrer to the complaint is waived where appellant’s brief fails to address any point or proposition thereto, p. 19.</p> <p>2. Insurance. — Accident Insurance. — Total Disability. — Where an accident insurance policy provided for the payment of total disability benefits in case the assured should suffer injury which should, from the date of the accident, disable him and prevent him from, performing every duty pertaining to any and' every kind of business or occupation, and if such injuries wholly and continuously from date of accident should disable and prevent the assured from performing one or more important duties pertaining to his occupation, or in event of like disability immediately following total loss of time, partial disability benefits should be paid, the words “total loss of time” in the provision concerning partial disability, when read in connection with the stipulation in reference to total disability, make it clear that the assured would not be entitled to recover for total disability except in event of total loss of time, during which he was x>revented from performing every duty pertaining to any and every kind of business, p. 20.</p> <p>8. Appeal. — -Revieux—Erroneous Instruction. — Presumption.—In an action to recover benefits on an accident insurance policy, an instruction that, if a person was so disabled that he was disqualified and rendered unable to perform substantially and in a reasonable way his usual and ordinary work and vocation, he was totally disabled, was, in view of the stipulations in the policy, incorrect, and will be presumed to have been harmful, 2-5.</p> <p>4. Appeal. — Excessive Verdict. — Erroneous Instruction. — Cure l>y Remittitur.- — Where,'in an action on an accident insurance policy, defendant made no contention that plaintiff was not partially disabled so as to bring them within the stipulation of the policy in respect thereto, an instruction, which erroneously defined the insurer’s liability under the total disability provision contained in the policy, could not have been prejudiced to defendant’s rights except to the extent that the verdict exceeded what it would have been had the recovery been for partial disability and will be cured by a remittitur of such amount, p. 26.</p>

<p>1. Appeal. — Instructions.—Applicability to Pleading. — In an action for personal injuries received when plaintiff was struck by defendant’s automobile, defendant cannot on appeal complain of an instruction that does not^follow the averments of the complaint as to plaintiff’s location at the time of the accident, Vhere the facts referred to in such instruction are supported by uncontradicted evidence which was received without objection, p. 28.</p> <p>2. Negligence. — Driving Automobile. — Collision on Higluwwy. — Verdict. — Evidence.—Sufficiency.—Violation of Statute. — In an action for personal injuries, where it appeared from the evidence that defendant was proceeding along a public highway in his automobile at a speed of twenty-five miles per hour, and, although he was signalled to stop his car or slacken its speed, failed to do so, but, in attempting to pass plaintiff’s wagon and team, struck anc] injured plaintiff, who was walking on the road beside his horses so as to better control them, such evidence was sufficient to sustain a verdict for plaintiff, since it showed defendant guilty of actionable negligence, especially as he was so operating his motor car at the time of the accident as to violate one of the penal laws of the state, pp. 29, 30.</p> <p>3. Trial. — Jury Questions. — Conflicting Evidence. — Where the evidence upon an issue is conflicting, a question of fact is presented for determination by the jury. p. 29.</p> <p>4. Negligence. — Use of Highway. — Presumptions.—In an action for personal injuries sustained in a collision with a motor car, plaintiff Was without fault in walking on the road beside his horses so as to better control them, since one lawfully using a public highway has the right to assume that others using the highway in common with him will take notice of his presence and exercise a proper degree of care not to harm him. p. 30.</p>

<p>1. Actions. — Predicating Action on a Statute. — Where one predicates his cause of action on a statute, he must bring himself within it. p. 38.</p> <p>2. Railroads. — Crossing Accidents. — Complaint.—Allegations.—Inferences. — Sufficiency.—In an action for personal injuries sustained in a railroad crossing accident, allegations in the complaint that defendant negligently ran its train against plaintiff while running at the high and dangerous speed of fifty miles per hour, and that the engine crew carelessly and negligently failed to sound the whistle or ring the bell of the locomotive on approaching the crossing when within 100 rods thereof, until about 150 feet therefrom, sufficiently showed, aided by reasonable inference permitted in favor of a pleading, that the train which injured plaintiff approached from a point not less than 100 rods from the crossing, and that from such point the whistle was not blown until the train was about 150 feet from the crossing, and such averments were sufficient to charge defendant with negligence in failing to give the” signals required of trains by statute when approaching highway crossings, p. 38.</p> <p>3. Railroads. — Grossing Accidents. — Negligence—Failure to Give Statutory Signals. — The failure of a Railroad company to ring the bell on the engine continuously as a 'train approachesi a street crossing,,being in itself a violation of the statute, constitutes negligence, p. 30.</p> <p>4. Railroads. — Grossing Accidents. — Faihvre to Give Signals. — Independent of statute, it is the duty of those in charge of a railroad train to give reasonable and timely warning of its approach to a highway crossing, and failure to do so constitutes negligence, p. 39.</p> <p>5. Railroads.— Operation.— Speed.— Grossing Watchman.— Negligence. — While running a train over a crossing at a high rate of speed, or failure to have a flagman or watchman stationed at the crossing, is not negligence per se, in the absence of a statute making it so, yet such operation of a train may, in fact, constitute negligence depending upon all the facts and circumstances surrounding the particular case under consideration, p. 39.</p> <p>C. Railroads'.— Grossing Accidents.— Speed.— Negligence.— Gave Required. — The rule permitting a train to be run in the country at a high rate of speed without the imputation of negligence does not obtain as to trains when operated through populous cities and over the much-traveled crossings therein, but the railroad owes to those traveling over such crossings the duty of ordinary care. p. 39.</p> <p>7. Negligence. — Complaint.—Necessary Averments. — Sufficiency.—r Where the duty to use ordinary care is shown by the complaint, the general averment therein that defendant carelessly and negligently did, or omitted to do, the acts necessary to the discharge of such duty, and that such negligent acts were the proximate cause of the injury comxflained of, renders the complaint sufficient as against a demurrer, unless the specific acts pleaded are of a character to destroy the force and effect of such general charge of negligence, p. 40.</p> <p>8. Railroads.— Grossing Accidents. — > Oomplañnt.— Construction.— In an action for personal injuries sustained in a railroad crossing accident, the specific averment in the complaint that the train which injured plaintiff was running at the high and dangerous speed of fifty miles an hour, when considered in the light of averments showing that the crossing where the accident occurred was in a city where vehicles were passing over it every two minutes, did not tend to destroy the effect of a general charge of negligent speed, p. 40.</p> <p>9. Railroads.— Crossing Accidents. —Complaint.—■ Construction.— In an action for injuries sustained in a railroad crossing accident, an averment in the complaint as to the frequency of travel at the crossing strengthens the averment that defendant negligently and carelessly failed to maintain a - watchman at such crossing, p. 41.</p> <p>10. Railroads. — Crossing Accidents.- — Complaint.-—Construction.— Averments in a complaint alleging- that defendant railroad was operating a line of railway through a county named and' was doing business therein; that Main street, or the Michigan road, which it crossed, is the principal street of the city of Rochester, and very much used by the public at the point where it crosses defendant’s railway, are sufficient to show, aided by reasonable inference permitted in favor of a pleading, that the crosping referred to was located within the city of Rochester, and that the railroad was therefore subject to its ordinances, p. 41.</p> <p>11. Appeal.— Review.— Issues.— Amendments Deemed Made.— In an action against a railroad for injuries sustained by plaintiff when struck by a train at a street crossing, even though the averments of the second paragraph of complaint were insufficient to show that the crossing was within the corporate limits of the city of Rochester, and that the railroad was, therefore, subject to its ordinances, where the issue as to the location of such crossing was fully tried and proof thereon made under the first paragraph of complaint, the second paragraph, being in all other respects sufficient as against demurrer will be treated on appeal as having been amended in respect to such defect to conform to the proof, p. 42.</p> <p>12. Railroads. — Crossing Accidents. — Complaint.—Construction.—• In an action for personal injuries sustained in a railroad crossing accident, while averments in the complaint charging that plaintiff’s view of the crossing was obstructed by buildings, etc., as he approached riding in a top buggy with the side curtains down, and that on account of obstructions he could not see or hear any train‘approaching, may tend to show, when standing alone, that plaintiff was guilty of contributory negligence in going upon the crossing,- yet such averments, read in connection with others in the complaint alleging that when he approached the crossing he proceeded carefully and exercised all due care and caution to see and hear any train, may be fairly interpreted as meaning that plaintiff used all care and caution usually exercised by a man of ordinary care and prudence to see and hear an approaching train, and that he could not, and did not, see the train, pp. 42,43.</p> <p>13. Negligence.— Complaint.— Disclosure of Defense.— Contributory Negligence. — Contributory negligence is a defense, and, while it may appear from the complaint, when it does, it is the duty of the court to hold the complaint insufficient- as against a demurrer predicated on such ground, yet the court can do this only when it can say, as a matter of law, that under the facts pleaded, honest and reasonable men could draw but one inference therefrom — that the plaintiff’s conduct was not that of a man of ordinary care and prudence, p. 42.</p> <p>14. Railroads. — Crossing Accidents. — Duty of Traveler Approaching Crossing. — Pleading.—The law requires persons traveling on the streets of a city in a vehicle, and approaching a railroad crossing, to stop before passing over a crossing only in those eases where ordinary prudence would dictate such a course, and it is only in exceptional cases that the court can say that the facts pleaded affirmatively show the necessity for such action, p. 43.</p> <p>15. Appeal.— Devieio.— Verdict.— Answers to Interrogatories.— Presumptions. — A general verdict for the plaintiff is a finding that every averment of the complaint essential to his cause of action is true, and to support the verdict against a motion for judgment on the answers to interrogatories, the court on appeal must assume as proven every fact provable under any supposable evidence admissible under the issues which in any way tends to support the general verdict, or which tends to reconcile it with the answers to interrogatories, p. 44.</p> <p>1G. Railroads. — Crossing Accidents. — Answers to Interrogatories. —Construction.—In an action against a railroad for injuries sustained in a collision at a street crossing, a finding by the jury, in answer to an interrogatory, that obstructions along and immediately east of the street, the side curtains on plaintiff’s buggy and the noise from the steel tires on the buggy did not prevent him from hearing the train approaching as he traveled from a distance 200 feet south of defendant’s main tract toward the ' crossing, is not in irreconcilable conflict with a general verdict for plaintiff, since it does not mean that he heard, or could have heard, the train within the distance mentioned, but means, fairly interpreted, that the things mentioned in the interrogatory did not prevent plaintiff from hearing the train, and not that he may not have be.en prevented from hearing it by something else, or that he in fact heard it. p. 44.</p> <p>17. Railroads. — 'Crossing Accidents — Answers to Interrogatories. —Construction.—In an action for injuries in a railroad crossing accident, the jury’s finding, in answer to interrogatories, that with a box car standing, east of the crossing on the elevator track, which was about twenty-one feet south of the main track, plaintiff could have heard the approach of the train which struck him without stopping his horse, and could have heard the approach of the train before he crossed such elevator track if he had stopped and listened, is not in irreconcilable conflict with the general verdict, which is a finding that plaintiff used ordinary care and that he did not hear the train, since the answer of the jury, under the interpretation most favorable to defendant, will be construed as meaning that plaintiff could have heard the approaching train either by stopping his horse and listening, or without stopping his horse, which is not the equivalent of a finding that he did hear such train, or that by the use of ordinary care he could have heard it. p. 45.</p> <p>18. Railroads. — Crossing Accidents. — Review.—Answers to Interrogatories. — In an action for personal injuries sustained in a collision with defendant’s train at a crossing, where the facts elicited by the jury’s answers to interrogatories do not show that plaintiff failed to use ordinary care to ascertain the approach of the train before proceeding upon the crossing, or that obstructions or noises other than those mentioned in the interrogatories may not have made it difficult or impossible to hear the approach of the train except by the use of extraordinary care, such facts will not invoke the application of the principle that the law .will presume, generally, that a person actually saw what he could have seen if he had looked, and heard what he could have heard if he had listened, such presumption being indulged only in eases where one fails to look or listen, or where the physical surroundings and conditions are such as to force conviction that one did see or hear, notwithstanding a statement or finding that he did not. p. 45.</p> <p>19. Appeal.— Review.— Preswnptions.— Verdict.— Answers to Interrogatories. — In an action for personal injuries in a railroad crossing accident where the general verdict was for the plaintiff, it will he assumed on appeal, on consideration of the refusal of ■ a motion for.judgment on the answers to interrogatories, that the evidence showed that there was something to prevent the plaintiff from hearing the approach of the train at the time inquired about in the interrogatories, in the absence of a contrary finding, p. 46.</p> <p>20. Appeal.— Briefs.— Points and. Authorities.— Abstract Statements. — Instructions.—Where appellant’s brief, under its points and authorities, makes general statements concerning what is proper and required in giving the instructions, but under such heading makes no application of any of these statements . nor reference to any particular instruction, the brief does not comply with the rules of the Appellate Court, and no question on the instructions is presented for review, p. 46.</p> <p>21. Appeal. — Briefs.—Presenting Grounds for Uevieio. — Instructions. — No question is presented for review by criticism of certain instructions made in the argument in appellant’s brief, where the rule of the Appellate Court relating to the presentation of alleged error under the heading of points and authorities'has not been complied with. p. 47.</p> <p>22. Appeal.- — ■'Waiver of Ei-ror. — Briefs.—A ground for a motion for a new trial not referred to under the heading of points and authorities in appellant’s brief is waived, p. 47.</p> <p>23. Evidence. — Testimony of Physician. — Personal Injuries. — Examination. — In an action for personal injuries, a physician, called to examine plaintiff to ascertain the extent of his injuries, but not to treat him, could testify as to what he saw and found in such examination, p. 48. .</p> <p>24. Evidence. — Self-Serving Declarations. — Physician’s Examination. — Personal Injury. — In an action for personal injuries, the testimony of a physician that he found, when examining the plaintiff to ascertain his injuries, a “slight soreness in the intercostal region,” was not objectionable as being a self-serving declaration, where such statement did not purport to be what the plaintiff told the witness, but was based on what the witness found in his examination, p. 48.</p>

<p>From Delaware Superior Court; Robert M. VanAtta, Judge.</p> <p>Action by Samuel R. Clark, by his next friend, Eli H. Clark, against the Central Indiana Railway Company. Prom a judgment for plaintiff, the defendant- appeals.</p>

<p>Prom Marion Superior Court (93,009); Charles J. Orbison, Judge.</p> <p>Action by William D. Headrick and others against the National Life Insurance Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Montgomery Circuit Court; Jare West, Judge.</p> <p>Action by Joseph G. Cooley and another against Francis W. Powers.</p> <p>From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Vigo Superior Court; John E. Cox, Judge.</p> <p>Action by Elva Close against Winfield M. Fox. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by Walter Owens and another against the National Live Stock Insurance Company. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by John B. Phillips against Flora Kurtz. Judgment for plaintiff by default and from an order overruling a motion to set aside the judgment, the defendant appeals.</p>

<p>1. Pleading. — Theory.—Determination.—Theory on Appeal. — The theory of a pleading must be determined by a consideration of its general scope and tenor, and the theory adopted by the trial court will be adhered to on appeal where such pleading, from its plain terms, is susceptible of such construction and theory, particularly where it appears from the record that the parties themselves proceeded on such theory, p. 88.</p> <p>2. Attorney and Client. — Compensation.—Action.—Jury Question. — In an action by a client against an attorney for money collected, where the defendant contended that the money sought to be recovered was retained by him, with plaintiff’s consent, ■ as a reasonable attorney fee, it was for the jury to determine the amount, if any, due plaintiff, p. 89.</p> <p>3. Appeal. — Review.—Evidence.—Verdict.—Where there is some evidence to sustain the verdict, that is sufficient on appeal, p. 89.</p> <p>4. Account Stated. — Agreement of the Parties. — Prior Dealings. —Before there can be an account stated there must have been prior dealings betweert the parties, and, after an examination of all the items by each of the parties, they must have mutually agreed upon the items of the account and that the balance struck is just and due from the party against whom it is stated, p. 89.</p> <p>5. Account Stated. —■ 'Nature of Action. • — - An account stated amounts to more than an admission of an amount due, as it is a new cause of action, and in a suit upon such an account the inquiry is directed not to the original transaction out of which the account arose but to the questions of whether the parties had in fact agreed upon the amount due and whether it has been paid. p. 89.</p> <p>O. Account Stated. — Action.—Bvidence.—Presumption.—Where, in the absence of an express agreement, an implied assent to the amount due is relied on for a recovery, the receipt and retention of a statement of account is proper evidence to be considered in determining whether the parties have agreed upon the amount due, but it is not necessarily conclusive, and amounts to no more than prima facie proof of agreement on a balance, p. 90.</p>

<p>1. Drains. — Gleaning Ditch. — Expenses.—Action to Enjoin Collection. — Complaint.—Sufficiency.—In an action to-enjoin'a county treasurer from collecting, under §6152 et seq. Burns 1914, Acts 1907 pp. 527, 600, relating to the repair and cleaning of ditches, the expenses of cleaning out a landowner’s allotment of a public ditch, where the complaint alleges that the landowner had been notified by the township trustee to clean and repair according to the original specifications certain sections of a ditch which had been regularly allotted to him, that within the time specified in the notice the work allotted was completed in conformity with the specifications, and that the trustee, after notice of the performance of the work, accepted it as completed in accordance with the specifications, such complaint is sufficient as against-objections that it does not sufficiently allege the acceptance of the work by the trustee as completed by the landowner, or when - the work was done by him, or that he completed the work according to the requirements of the notice given by the trustee, and that th'e contents of the notice were not disclosed, p. 92.</p> <p>2. Appeal. — Review.—Findings of Facts. — Contradictions in Evidence. — Where findings of facts are supported by substantial evidence, they cannot be disturbed on appeal because there are contradictions in the evidence given at the trial, p. 94.</p>

<p>From Shelby- Circuit Court; Alonzo Blair, Judge.</p> <p>Action, by Theodore F. Harrison against Archie Greathouse and others. From a judgment for plaintiff, the defendants appeal.</p>

Action by William H. O’Brien, Auditor of State, and another for tbe appointment of a receiver for the Indiana Trust and Savings Bank. Wolf Marcovieh sought to intervene and from a judgment striking out his petition, he appeals.

From Marion Circuit Court (22,364); Charles Remster, Judge. Action by the Antioch Baptist Church, by its trustees, Thomas Roberts and others, against Emma G. Morton and others. Prom a judgment for defendants, the plaintiff appeals.

<p>1. Appeal. — Revi&iv.—Questions Presented. — Motions.—An assignment of error predicated on tbe trial court’s refusal of a motion to modify its finding of facts by striking out certain special findings presents no question for review on appeal, since motions to modify, strike out or add to tbe special findings are not recognized by tbe code of procedure, tbe proper remedy being by a motion for a new trial, p. 120.</p> <p>2. Appeal. — Briefs.—Sufficiency.—Where appellant’s brief fails to show that a motion for a new trial was filed or ruled on, and it is impossible to determine, without a search of the record, what questions were sought to b'e presented by the motion, the brief fails to comply with the fifth clause of Rule 22 of the Appellate Court, relating to the preparation of appellant’s briefs, and no question is presented for review by an assignment of error based on the overruling of the motion for a new trial, p. 120.</p>

From Marion Superior Court (96,933) ; Theophilus J. Moll, Judge. ' Action by the Indianapolis Electric Supply Company against Charles J. Trapschuh and others. Nicholas J. Lux, being made a party defendant, filed an intervening petition, and from a judgment in his favor, the plaintiff appeals.

From Starke Circuit Court; Harley A. Logan, Special Judge. Action by the State of Indiana, on the relation of Nathaniel Brown, against Miles Y. Royer and another. From a judgment for plaintiff, the defendant appeals.

<p>Prom Tippecanoe Superior Court; Henry H. Vinton, Judge.</p> <p>Action by John F. Cunningham against the Lafayette Telephone Company. From a judgment for plaintiff, the defendant appeals.</p>

Prom Marion Probate Court; Mahlon E. Bash, Judge. Action by Dale J. Crittenberger, Auditor of State of the State of Indiana, against the State Savings and Trust Company of Marion county, Indiana, and others. Prom the judgment rendered plaintiff appeals, and defendants move to dismiss the appeal.

<p>From Marion Circuit Court (23,015) ; Charles Remster, Judge.</p> <p>Action by the Pittsburgh, Cincinnati, Chicago, and St. Louis Railway Company against August B. Meyer and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Appeal. — Assignment of Error. — Grounds.—Alleged error of the trial court in directing a verdict is not ground for an independent assignment of error, p. 170.</p> <p>2. Public Lands. — Bioamip Lands. — Patents.—A state patent conveying title to a certain described section of land, together with, all rights, privileges, immunities and appurtenances of whatever nature thereto belonging, such patent having been made according to the act of 1852 regulating the sale by the state of swamp lands donated by the United States to the State of Indiana, is held, on , the authority of the State v. Tuesbwrg Land Oonvpany (1915), 61 Ind. App. 555, not to convey title to the thread of a stream forming a boundary line of the section, even though the stream is a nonnavigable river, p. 172.</p>

From Howard Circuit Court; William C. Purdum, Judge. Charles E. Hancock, administrator of the estate of William Hancock, deceased, filed a current report and Ollie Hancock filed exceptions thereto. From an approval of the report as filed, the exceptor .appeals.

<p>From the Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Action by the Imperishable Silo Company against the National Fire Proofing Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Jay Circuit Court; Clark J. Lutz, Special Judge.</p> <p>Action by Zelpha Denney against Milton D. Reber. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Knox Circuit Court; Benjamin M. Willoughby, Judge.</p> <p>Action by James P. Harris and others .against Edgar R. Riggs and others. Prom a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Insurance.- — Parol Contracts. — Validity.—Parol contracts of insurance may be valid and of binding force, p. 215.</p> <p>2. Insurance. — Contract to Reneio Policy. — Validity.—An insurance company can, by a preliminary oral contract, bind itself to issue or renew a policy of insurance in the future, p. 216.</p> <p>3. Insurance. — Reneioal of Policy. — Authority of Agent. — Oral Contract. — Where an agent for an insurance company has apparent power to solicit insurance, collect premiums, deliver policies, and do all things necessary to transact the company’s business intrusted to his care, and no restriction is brought to the knowledge of an applicant, the company is bound by the agent’s oral contract to renew an existing policy of insurance, p. 216.</p> <p>é. Insurance. — Authority of Agent. — Reneical.—Notice of Expiration of Policy.- — A letter from an insurance company to a policy bolder, informing him of the date of the expiration of his policy and requesting him to see the- company’s agent concerning a renewal and let him take care of his interests, justified the assured in assuming that the agent had full and general authority to act for his principal, p. 216.</p> <p>5 Insurance. — Contracts of Insurance.- — Power of Agents. — Restrictions in Policy. — Provisions in policies of insurance limiting the powers of agents have reference to that policy only, and have no application to preliminary agreements to insure or to renew existing insurance, p. 217.</p> <p>6. Appeal. — Action on Insurance Policy. — Judgment.—Error in Favor of Appellant. — A defendant appealing from, an adverse judgment cannot object ,that the judgment is for a smaller amount than should have been allowed under the findings of fact. p. 217.</p>

<p>1. Costs. — Bond.—Permission to Sue as a Poor Person. — Nonresidence of Plaintiff. — A party granted the right to prosecute an action as a poor person under §261 Burns 1914, §2G0- R. S. 1881, re- ■ lating to the appointment of attorneys for persons without means to prosecute or defend actions, cannot be required to give a bond for costs because he thereafter becomes a nonresident of the state, p. 220.</p> <p>2. Appeal. — Presentation of Error. — Motion for New Trial. — Assignment of Error. — A specification in a motion for a new trial, alleging that the trial court erred in not requiring a bond for costs to he filed- by plaintiff:, who became a nonresident of the state subsequent to the commencement of his action, does not present any question for review as to the court’s ruling per- . mitting plaintiff, after the motion for a cost bond, to prosecute his action as a poor person, since such ruling must be challenged by an independent assignment of error, p. 221.</p> <p>3. Costs. — Bond.—Permission to Sue as a Poor Person. — Nonresidence of Plaintiff. — 'Ruling of Trial Court.- — -Presumption.-—-In the absence of an assignment of error challenging the action of the trial court in permitting plaintiff, after a motion had been filed to require him to furnish a cost bond because he was a resident of another state, to prosecute his suit' as a poor person, it will be assumed on appeal that the ruling of the trial court was proper, and it was not, therefore, error to overrule the motion for a bond for costs, p.221.</p> <p>4. Exceptions, Bill of.- — Time of Presenting for Signing. — Recitals in Bill. — The recital in a bill of exceptions of the day it was presented to the judge for signing, which was after the time given to file the bill, will be taken as correct, regardless of a recital that it was presented within -the time allowed for filing. p. 221.</p> <p>5 Appeal. — Presenting Questions for Review. — Bill of' Exceptions. —Time for Signing and Settlement.- — -The bill of exceptions containing the evidence must be presented to the trial judge for his signature within the time fixed for filing the bill in order to present for determination on appeal any questions requiring a consideration of the evidence, p. 222.</p> <p>6. Appeal. — Questions Revi&ioable. — Sufficiency of Convplaint.— Waiver of Defects. — Statute.—Since the enactment of §3481 Burns 1914, Acts 1911 p. 415, an assignment of error challenging the complaint for not stating facts sufficient to constitute a cause of action is no longer available, p. 222.</p> <p>7. Pleading.' — Complaint.—Motion to Make More Specific. — Knowledge. — Where, in an action to foreclose a mechanic’s lien, the complaint alleged that the.property on which the lien was taken was owned by the defendants, husband and wife, as tenants by entireties, that the buildings erected on the premises were constructed under a contract with the husband with the full knowledge, consent and acquiescence of the wife, and that in all things relating to the contract the husband acted as her agent, a motion to make the complaint more specific as to what knowledge, if any, the plaintiff had given to the wife concerning the contract for the erection of the buildings was properly overruled, since the averments of the complaint, in effect, charge the wife with having all knowledge possessed by the husband, p. 222,</p> <p>8. Mechanics’ Liens. — Husband and Wife. — Tenancy by Entire-ties. — Liability of Wife for Improvements. — Statute.—Section 7860 Bums 1914, §5123 R. S. 1881, which requires the written consent of the wife in order to charge her personally and alone with repairs or improvements made on her separate real estate by order of the husband, has no application to real estate which the wife and husband own as tenants by the entireties, p.223.</p>

<p>From Elkhart Superior Court; James L. Harman, Judge.</p> <p>Action by Effie I. Phillips against Fernando W. Ball and others. From the judgment rendered, the plaintiff appeals.</p>

From Wayne Circuit Court; Daniel W. Comstock, Special Judge. Action for partition by Sarah Myers against Essie Paul, guardian of Neva Paul, and others. Essie Paul, guardian, filed a cross-complaint to quiet title, and from a judgment sustaining demurrers to her cross-complaint, she appeals.

<p>1. Physicians and Sukoeons. — •Malpractice. — Complaint. — Sufficiency. — In an action against a physician for malpractice in treating a burn on plaintiff’s foot, a complaint containing allegations showing the nature and extent of the injury, that the only cure was a certain treatment which the defendant unskilfully and negligently failed to employ, that he negligently used, and continued to use, an insufficient remedy and failed to observe that it was not healing the wo.und, and that as a result of defendant’s negligence and unskilfulness plaintiff suffered great pain, etc., and the foot was amputated, sufficiently states a cause of action for improper diagnosis, from want of skill or care, for use of an improper remedy and the continuance thereof after it should have been observed to be ineffectual, p. 235.</p> <p>2. Appeal. — 'Review.—Evidence.—Sufficiency.—Where there is some competent evidence to support a verdict for plaintiff, it must be sustained on appeal, even though the weight of the evidence was favorable to the defendant, p. 237.</p>

<p>'From St. Joseph. Circuit Court; Thomas W. Slick, Special Judge.</p> <p>Action, by Frank H. Dunnahoo against the Chicago, South Bend and Northern Indiana Railway Company and another. From a judgment fon plaintiff, the defendants appeal.</p>

<p>1. Insurance. — Agent.—Contract.—Unpaid Premimns. — Liability of Agent. — Under a contract between an insurance company and its agent whereby he was required to collect first premiums on applications taken by him and was .prohibited from extending the time for the payment thereof, the agent is not chargeable with premiums unpaid by applicants on insurance written by him, in the absence of any provision in the contract evidencing an intention to make him liable therefor, pp. 254, 255.</p> <p>2. Appeal. — Preswmptions.— Master Commissioner’s Findings.— Adoption by Court. — In an action by an insurance company against its agent to recover money alleged to be due under an agency contract, the court on appeal cannot presume, even though certain provisions of the contract made it defendant’s duty to collect premiums on insurance written by him, that the agent collected the premiums in controversy, where the master commissioner’s report adopted by the court found that the agent did not collect such premiums, p. 254.</p> <p>3. Insurance. — Contract with Agent. — Commissions.—Accounting for Premiums.-^Master’s Report. — Construction.—Where in an action by an insurance company against an agent to recover money alleged to be due under an agency contract, a master commissioner found certain “commissions due or allowed defendant from plaintiff,” such commissions being on uncollected premiums, the word “or” was used, not in its alternative sense, but as a connective, and the word “allowed” as meaning “to concede, consent to, or to grant,” so that the report of the master could be construed as meaning that the company consented to allow such commissions to defendant, though unpaid, notwithstanding a provision in the contract that commissions should be payable only on premiums collected in cash on policies issued on applications procured by the agent and accounted for by him. p. 255.</p> <p>4. Appeal. — Review.—Mastei- Commissioner’s Report. — Fvidence Not in Record.- — Presumption.—Where the evidence is not in the record, the master commissioner’s report of the facts, having been adopted by trial court, must be presumed to be correct, p. 256.</p> <p>5. Appeal. — Master Commissioner’s Report. — Conclusions.— Mere conclusions in the report of a master commissioner, in a case referred to him for a finding of facts, must be excluded, p. 256.</p> <p>6. Appeal. — Preswnvptions.—Action of Trial Court. — Presumptions should be indulged in favor of the action of the trial court until it is made to appear that the court erred therein, p. 257.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Jeptba Crouch and others against George S. Fahl and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Waiver of Error. — Briefs.—An assignment of error predicated on the overruling of the demurrer to the complaint is waived by failure to present it in appellant’s briefs, p. 269.</p> <p>2. Appeal. — Review.—Evidence.—Sufficiency.—Conflicting Evidence. —‘If there is some evidence to sustain the verdict, it is neither the right nor duty of the court on appeal to weigh conflicting evidence, p. 271.</p> <p>3. Tbial. — Instructions.—Statement of Tono. — Scope.—Considered Together. — In an action to recover for damages to a motorcycle caused by a collision with an automobile on a public highway, an instruction that a violation of the law regulating travel on public highways would constitute negligence, which, if the proximate cause' of the damage complained of, would warrant a recovery if plaintiff was free from contributory negligence, states a correct proposition of law, and is not objectionable for failure to make allowance for sudden emergencies and the effect thereof on the question of liability, where the subject was covered by other instructions, as all the law need not be given in a single instruction, but all should be considered together. p.£71.</p>

Prom Grant Superior Court; Robert M. VanAtta, Judge. Action by Orrin H. Trook against William IT. Trook and others. From an order of the superior court of Grant County setting aside an order for a new trial as of right made by the circuit court before a change of venue, the defendant named appeals.

Prom Shelby Circuit Court; Alonzo Blair, Judge. Action by George W. Parker and others against 'William Humfleet, as trustee of Buck Creek township, Hancock county, and others. Prom a judgment for defendants, the plaintiffs appeal.

<p>1. Appeal.— Briefs. — Rules of Court. — Substantial Compliance.— Although the rules for the preparation of appellant’s brief have not been strictly followed, the errors presented will be considered where there has been a substantial compliance therewith, p. 293.</p> <p>2. Appeal! — Revieio.—Instructions.—Consideration.—Misleading Instruction. — In an action for unlawful appropriation of a tract of real estate and for damages, an instruction that the burden was on defendant to prove by a fair preponderance of the evidence that the material allegations of its several paragraphs of, answer, which pleaded the different statutes of limitations, while misleading, if standing alone, was not prejudicial to defendant when read in connection with other instructions, given by the court on its own motion, which covered specifically each paragraph of answer, except that pleading the ten-year statute of limitations, p-. 293.</p> <p>3. Appeal. — Review.—Instructions.—Burden of Proof. — Preponderanee of the Evidence. — Harmless Error. — In an action for unlawful appropriation of real estate and for damages, an instruction which informed the jury that the “burden of proof” and the “fair preponderance of the evidence” did not mean that either party must prove any particular fact by a greater number of witnesses than- the opposing party, but meant the facts testified to by the witnesses' that carried the greater weight, was not prejudicial to defendant as confusing the burden of proof with the preponderance of the evidence, or as excluding documentary evidence from the consideration of the jury, when read in connection with other instructions that “if you find from a fair preponderance of the evidence,” and that, in determining whether defendant had been in possession of the real estate in controversy, the jury should consider all the evidence and be governed by a fair preponderance thereof, and to consider, among facts shown by all the evidence, defendant’s use of the realty, p. 294.</p> <p>4. Appeal.' — Review.—Instructions.—Harmless Error. — Appropriation of Lands. — Measure of Damages. — In an action for possession of lands unlawfully appropriated and for damages, an instruction that, if it should be found that defendant unlawfully apimopriated the real estate in controversy, the measure of damages would be the value of the land appropriated, while not a correct statement of law, was> more* favorable to defendant than one could have been embodying the general rule that the measure of damages was the difference in the value of the whole tract of real estate before the alleged appropriation and thereafter, as the defendant was not required by the instruction complained of to answer for any damages that might have resulted to the residue of the land by reason of the taking of a part thereof, p. 295.</p> <p>5. Appeal. — Review.—Excessive Dmiages. — Presenting Questions for Review. — In order to present for review on appeal an objection that an instruction states an erroneous measure of damages, there must have been, an assignment, as a ground for a new trial, that the damages recovered were excessive, p. 295.</p> <p>G. Appeal. — Review.—Instructions.—Refusal.—In an action for the unlawful appropriation of a tract of real estate and damages, the refusal of defendant’s requested instructions on the question of the burden of proof as to the title of the land in controversy and the different elements to be considered in arriving at the measure of damages was proper, where the court informed the jury, in an instruction on the subject of ownership, that plaintiff, to recover, must show by a fair preponderance of the evidence that he was the legal owner of the real estate in controversy at the time of its appropriation, and where the instructions given as to the measure of damages were more favorable to defendant than it was entitled to. p. 29G.</p> <p>7. Appeal: — Rev/i&io.—Jury Question. — In an action for the unlawful appropriation of realty, the weight to be given- the. evidence relied on by plaintiff, to establish ownership was, if such evidence were competent, for the jury, and, as the general verdict necessarily found for plaintiff upon such, issue, the court on appeal is precluded from further inquiry, p. 296.</p> <p>8. Eminent Domain. — Appropriation/ of Land. — Action by Owner. —Burden of Proof. — Titlt.—In an action for possession of land alleged to have been unlawfully appropriated and for damages, where plaintiff was not in possession of the realty in controversy at the .time the action was commenced and had not -been for a long time prior thereto, the burden was on him. to establish, title as alleged, p.297.</p> <p>9. Appeal. — Review.—Evidence.—Public Records. — Deeds.—Certification. — Admissibility.—Statute.—In an action for the unlawful . appropriation of land, where plaintiff relied, on certified, copies of certain deeds .to establish his title, it was not error for the trial court to admit in evidence certified copies of deeds upon which appeared, above the recorder’s- certificates attached thereto, the words' “Decatur County Recorder’s. Seal. Indiana,” since this was a substantial compliance with §478 Burns 1914, §462 R. S: 1881, which requires that copies of deeds and other instruments required by law to be recorded in, public offices, to be admissible in evidence, must be duly certified by the officer having the custody .thereof, and authenticated by the officer’s seal, which should be attached to the certificate of the officer to the instrument exemplified. p. 297.</p>

From Marion Superior Court (79,933); Pliny W. Bartholomew, Judge. Action by Erskine E. Hunter and another against Oscar A. Jose and another. Prom an adverse judgment defendants appealed, and there was a reversal, with costs ordered taxed against appellees. The latter move that the costs as taxed be retaxed.

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by Allen G. Hypes against Horace Nelson and others. From a judgment for defendants, the plaintiff appeals.</p>

Prom Hamilton Circuit Court; Meade Vestal, Special Judge. Action by Wainright Trust Company, receiver for the firm of Holleran, Haverstick, Wheeler and Patterson, against the United States Fidelity and-Guaranty Company. From a judgment for defendant, the plaintiff appeals.

<p>Prom Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action by Samuel J. Porter against Samantha P. Essig and others. From, a judgment for plaintiff, the defendant appeal.</p>

Prom Knox Circuit Court; Benjamin M. Willoughby, Judge. Action by Nathan W. Ringo, administrator of the estate of James Cross, deceased, against the Vandalia Coal Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Caeriees.. — Carriage of Passengers. — Action for Wrongful Ejectment. — Fares.—Evidence.—-Where a carrier’s published schedules of fares, as filed with, the Railroad Commission, fixed the fare from A to B at ten cents, from A to C at twenty cents, and from B to C at five cents, the schedules not mentioning two stops between B and C, known as stops Nos. 8 and 9, and when passengers boarded trains at other than established fare points, authorized the collection of five cents to the first fare point plus the fare from the first fare point to the destination, while a supplementary schedule fixed the fare at fifteen cents between A and stop No. 8, but fixed no fare between such stop and any other station, such schedules did not definitely or certainly establish the faro between stop No. 9 and B, so that, in an action against the carrier for wrongful ejectment, evidence was admissible to show the fare actually charged by defendant between such points on the day in question for the purpose of ascertaining the interpretation and construction placed on the schedules by the carrier, pp. 335, 336.</p> <p>2. Evidence. — Best and Secondary Evidence. — Railroad Fares.— Schedules Filed With Railroad Commission. — A carrier’s published schedules of fares as filed with, and approved by, the Railroad Commission, such body being invested with control thereof, are the best and, therefore, the proper evidence by which to prove the established fares between stopping places on the ' carrier’s line. p. 336.</p> <p>3. Caeriees. — Carriage of Passengers. — Action for Wrongful Ejectment.— Evidence. — Admissibility.-—-Res Gestee. — In an action against an interurban railroad for wrongful ejectment, the statement made to plaintiff by the conductor on the occasion of the occurrence involved, concerning fares charged by defendant, was admissible as part of the res gestee, p. 337.</p> <p>4. Caeriees.- — Carriage of Passengers. — Action for Wrongful Ejectment. — Passenger Fares. — Splitting up Journey. — Instructions.—■ Statutes. — Section 1 of the act of 1911 (Acts 1911 p. 545), §§3, cl. g, 7, 13 and 14, els. a, b, of the act of 1907 (Acts 1907 p: 454) only make it unlawful for a carrier to charge or collect any rate or tariff different from that fixed in the tariff schedule or by the use of any special rate, rebate, etc., to demand or receive from any person a greater or less fare than it charges any other person for like transportation, and forbids the acceptance by any person or firm of a rebate, but such statutes do not prohibit a passenger from making his journey by stages, regardless of his motive for so doing, and when a carrier offers the traveling public both a local and a through tariff in the duly published schedules, and the sum of the local fares between any two points on the carrier’s line is less than the through rate, a passenger, although he cannot elect at the commencement of his journey to pay the sum of the local fares for a through passage, may make his journey by stages in order to get the benefit of the local tariffs, and it is the duty of the carrier to accept a fare to any regular stopping point that a passenger may indicate; hence, in an action against an interurban railroad for wrongful ejectment instructions stating that one becoming a passenger is obligated to pay the through fare to the final destination intended when boarding a car is erroneous as making the passenger’s original intention controlling, and depriving him of the right to change Ms destination, pp. 337, 346.</p> <p>5. Cabedles. — Carriage of Passengers. — Passenger Fares.- — Local and Through Fares.-r-Luty of Corner. — Where a passenger on an interurban railroad when first approached by the conductor indicated a desire to contract for a through passage to a certain station on the carrier’s line, but upon learning the amount of the through fare expressed his intention to contract for transportation to an intermediate stop and tendered the fare to such point, the conductor should have received the same and carried him to such intermediate stop; even though the passenger’s purpose was to obtain the benefit of the scheduled local fares, which aggregated less than the through fare to the destination originally named by him. p.345.</p> <p>C. Gaeeiers. — Gwriage of Passengers. — Action for Wrongful Ejectment. — Splitting of Journey. — Evidence.—Where a passenger on an interurban railroad has the right to make his journey by stages and to pay the local fares between the various stops, evidence, in an action for wrongful ejectment, that the passenger alighted at the point to which the first local fare covered his transportation is of no controlling importance, except as part of plaintiff’s conduct tending to show that he stood on his right to take advantage of the local fares, which aggregated less than the through fare to his destination, p. 345.</p> <p>7. Carriers. — Carriage of Passengers. — Action for Wrongful Ejectment. — Trial.—Instructions.—Retention of Fare. — A conductor on an interurban car is not authorized to eject a passenger for failure to pay the proper fare while retaining the fare tendered by the passenger, so that, in an action for wrongful ejectment, instructions purporting to state facts which, would justify defendant in ejecting plaintiff from its car, but ignoring evidence tending to prove that the conductor had received and retained the fare tendered by plaintiff, are erroneous, p. 346. ■</p> <p>S. Caebiers. — Carriage of. Passenger.s. — Local and Through Fares. —■Selection by Passenger. — ■Disermvination.—Where a railroad’s published schedule of fares offers to the traveling public two different fares, one a local and the other a through fare, each having the same legal sanction and authority, a passenger may elect which fare he will take, and, where the carrier permits one passenger to contract for a through passage at the through rate, and another for local passage at the local rate, it is not guilty of discrimination, although the aggregate of the local fares between two points on the carrier’s line may be less than the through fare for the same journey, p. 348.</p>

<p>1. Appeal. — Review.—Rulings on Demurrers. — Memorandum of Defects. — Scope of Review. — Although the court on appeal, in reviewing the overruling of a demurrer to a complaint, can consider only the defects pointed out in the memorandum required by §344, el. 6, Burns 1914, its review is not so limited where a demurrer to a complaint is sustained for insufficiency of facts alleged, and it will uphold such a ruling, if the complaint is insufficient for any reason, p. 356.</p> <p>2. Taxation. — Tax Sales. — Failure to Exhaust Personalty. — Sale of Realty. — Injunction.—Where one liable for taxes has personal property in the county out of which his taxes may be collected, he may enjoin the sale of his real estate for the payment of such taxes, p. 358.</p> <p>3. Taxation. — Collection of Taxes. — Injunction. — Pleading and Proof. — One seeking to enjoin the collection of taxes must show by averment and proof either that the property upon which the taxes are assessed is not subject to taxation, or that such taxes háve been" paid. p. 358.</p> <p>4. Taxation. — Collection of Taxes. — Resort to Personalty. — Under §10324 Burns 1914, Acts 1903 p. 49, relating to the sale of property for nonpayment of taxes, personalty is the primary source of funds out of which to pay all taxes, and, if the person liable for taxes has personal property in the county, it is the duty of the officials charged with the collection of taxes to exhaust it before selling the assessed realty, p. 358.</p> <p>5. Taxation. — Paxes on Realty. — Death of Owner. — Liability of Estate. — Taxes accruing on realty before the owner’s death but not those accruing thereafter, become a charge against him, as well as a lien upon all his property, and should be paid by his executor out of the decedent’s personal estate, p. 358,359, 363.</p> <p>6. Taxation. — Dien for Taxes. — Date of Attachment. — The lien for taxes attaches to the property assessed upon the date that the taxes accrue, p. 359.</p> <p>7. Taxation. — Tax Bales. — Validity.—Where an owner of land dies leaving ample funds in his estate with which to pay delinquent taxes assessed against his realty in his lifetime, but his executrix fails to pay the same and the county treasurer sells the land to satisfy such taxes but fails in various ways to comply with the law relating to the collection of delinquent taxes and the sale of land therefor, the purchaser could not acquire title to the real estate by virtue of such sale, since there was a failure to follow the law governing the collection of delinquent taxes, p. 359.</p> <p>8. Taxation. — Payment of Taxes. — Conditions.—Effect.—Recovery. —Where the owner 'of lands sold to satisfy delinquent taxes tendered to the county treasurer the full amount Of money necessary to redeem the land from the tax sale and it was received by him, an attempted imposition of certain conditions in the tender as to a refund of part of the money was of no effect, and on failure to comply witli the conditions there could be no recovery of the money so paid. p. 300.</p> <p>9. Taxation. — Tax Bales. — Invalid Bales. — Rights of Purchaser.— Where a sale of land for taxes is invalid and ineffectual to convey title because the law for the collection of delinquent taxes was not followed, although the tax was valid and constituted a lien on the realty sold, the lien Of the State is transferred to the purchaser at the sale. p. 360.</p> <p>10. Taxation. — Tax Sales. — Invalid Bales. — Payment of Redemption Money to County Treasure.r. — Effect.—The payment to the county treasurer of the amount necessary to redeem land sold for taxes at an irregular sale inures to the benefit of the purchaser at such sale, and satisfies the lien acquired by him. p. 361.</p> <p>11. Pleading. — Complaint. — -Relief Granted. — Prayen-.-^The relief to which a party is entitled is determined by the facts averred and not by the prayer of the pleading, p. 361.</p> <p>12. Pleading. — Theory.—Determination.—In determining the theory of a pleading, the relief demanded may he considered in connection with the averments, p. SGI.</p> <p>13. Evidence. — Public Officers. — Performance of Official Duties.— Presumption. — In considering the sufficiency of a pleading, it is presumed that public officials have done and will do their duty unless the contrary appears from the allegations, p. 362.</p> <p>14. Executors and Administrators. — Accounting and Settlement. —Collateral Attach. — The settlement of a decedent’s estate, although irregular or invalid, cannot be attacked collaterally, p. 363.</p> <p>15. Taxation. — Tax Sales. — Action to Redeem. — Complaint.—Sufficiency. — A complaint, in an action to set aside a sale of land for taxes, is insufficient so far as seeking redemption from the tax sale, where it appears from the averments that the redemption is in legal contemplation already consummated,, since there is no need of invoking the power of the court, p. 36g.</p> <p>16. . SuBR0GATidN.-rP®2/mewi of Taxes,. — liability.—Rights of Pa/gor. —Where an executrix was obligated to pay the taxes on her decedent’s realty, but permitted them to become delinquent, and the purchaser of the real estate paid such taxes after final settlement of the estate to prevent the loss of part of his lands, he is entitled to recover the money so paid, on the principle of subrogation, from those who should have paid it. p. 363.</p> <p>17. Eíxecutors and Administratobs. — Filing Claims Against Estate. —Taxes.—Collection.—While ordinary claims against an estate can only be collected through ádministration as provided by statute, claims for taxes need not be filed by the county treasurer and may be collected from the administrator out of funds in his hands, or the treasurer may seize and sell property assessed to liquidate the amount due. p. 364.</p> <p>18. Executors, and Administrators. — Claim Against Estate.— Failure to File. — Liability of Devisees. — Where the taxes on a testator’s real estate should have been paid by his executrix out of the funds of the estate, but she permitted the same to become delinquent, and' one purchasing such realty from testator’s devisees paid the- tax to protect his property, such purchaser, on failure to enforce his claim, against the estate for the money so paid, cannot recover such money from'the devisees after the settlement of the estate, at least in the absence of a showing that they still have the property received by them in their possession at the time the action was instituted, p.364.</p>

<p>1. Carriers. — Carriage of Goods. — Interstate Shipment.- — Action -for Damages. — Common-law Liability. — There may be á cause of action under the common law against a common carrier for its negligence or wrongful acts resulting in damages to an interstate shipper, although there is a federal statute governing interstate shipments, p. 370.</p> <p>2. Carriers. — Carriage of Goods. — -Action for Damages. — -Defenses. —Under §8592, cl. 11, U. S. Comp. St. 1913, 34 Stat. at Large p. •• 595, providing that every common carrier receiving property for transportation from one state to another shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss or damage to such shipment, the duty is imposed on the carrier of issuing a receipt or bill of lading for an interstate shipment of freight, and, in an action for damages thereto, it can not predicate a defense on its failure to issue the receipt required by the statute, p. 371.</p> <p>3. Appeal. — Waiver of Error. — Briefs.—An assignment of error predicated on the overruling of the motion for judgment on the interrogatories is waived by failure of appellant to present any • point or prox)osition relating thereto in its brief, p. 371.</p> <p>4. Carriers. — Carriage of Goods. — Limiting'Liability.—Special Contracts. — 'Notwithstanding the federal statute governing interstate shipments common carriers may make contracts whereby they limit and define the extent of their liability for interstate shipments under specified conditions, but such carriers cannot, by contract, relieve themselves from liability for damages caused by their negligence or that of their employes, p. 375.</p> <p>5. Commerce. — Interstate Shipments. — Federal Legislation. — Where shipments of freight are interstate, the state law is superseded by the federal statutes relating to interstate commerce as to> all questions of liability or defense covered by such statutes, p. 375.</p> <p>O. Courts. — Jurisdiction of State Courts. — Interstate Convmerce.— Carriage of Goods. — Action for Damages. — Although there are federal statutes governing the liability of common carriers for interstate shixnnents of freight, the state courts are not thereby dexirived of jurisdiction in actions for damages to such shipments, for the federal law is a part, of the law of the state and, in such actions, may be applied by the state courts and'the relief warranted given, p. 375.</p> <p>7. Carriers. — Carriage of Live Stools. — Damages»—Liability.—Limiting by Special Contract. — Where, in an action against a common carrier for damages to an interstate shipment of live stock, the defendant answered that its liability was limited by a special contract issued and accepted by the shixiper several months after the shipment and payment of the freight charges, no receipt or bill of lading having been issued at the time of the shipment, the acceptance of the special contract under such circumstances was without consideration unless it was in accordance with a custom, as claimed by defendant, established by prior similar transactions between the parties, p. 376.</p> <p>8. Trial. — Verdict.—Scope and Effect. — A general verdict for plaintiff is a finding in his favor of every issuable fact and is conclusive on all questions where there is any evidence tending to support the verdict, p. 377.</p> <p>9. Carriers. — Carriage of Live Stools. — Action for Damages. — Evidence. — In an action against a common carrier for damages to a shipment of live stock, evidence that on a few occasions prior to the transaction in controversy plaintiff had shipped live stock under a special contract limiting the carrier’s liability, but that the contracts were procured at the time of the shipment and that in some instances bills of ladiñg had been obtained after shipments were made, was insufficient to show the establishment of a custom, as claimed by defendant, xiermitting the carrier, where a shipment of live stock was made under an oral agreement, to issue to the shipper several months thereafter a special contract restricting its liability as to such shipment, p. 377.</p> <p>10. Cabbiers. — Carriage of Goods. — Shipping Under Oral Agreement — If a bill of lading is not furnished a shipper until after the goods are fully accepted by the carrier under an oral agreement, the bill of lading constitutes no part of the contract and the oral agreement controls, p. 370.</p> <p>11. Appeal. — Review.—Harmless Error. — Admission of Evidence.— In an action for damages to a shipment of live stock, where the verdict and the jury’s answers to the interrogatories showed that the jury found adversely to defendant’s contention that the shipment was made under a special contract restricting carrier’s liability and that the shipper was bound thereby, the defendant could not have been harmed by the ruling of the trial court,.even though erroneous, on certain instructions, the admission of evidence, etc., relating to the provisions of such special contracts, p. 379.</p> <p>12. Appeal. — Revi&io.—Harmless Error. — Admission of Evidence.— Submission of Issues. — Verdict.—Scope and Effect. — In an action by a shipper for damages to a shipment of live-stock, where the carrier claimed that the shipment was made under a special contract restricting its liability, but the shipper contended that he was allowed to exercise no option as to rates or other conditions of transportation, but was compelled to ship under' the special contract or not at all, the general verdict for plaintiff was a finding in his favor on such issue, so that any error by the trial court in the instructions or admissions of evidence relating to such special contract was harmless, p. 380.</p>

<p>From Allen Circuit Court; John W. Eggeman, Judge.</p> <p>Action by Frank Pranger against John R. Hartzell and another. From a judgment for plaintiff, the defendants appeal.</p>

From the Industrial Board of Indiana. Action by Charles Lewis under the Workmen’s Compensation Act against the Columbia School Supply Company. Defendant appeals from a judgment for plaintiff, and the latter moves to dismiss the appeal.

From Clark Circuit Court; Harry C. Montgomery, Judge. Interpleader by the Northwestern Mutual Life Insurance Company against the New Albany National Bank, Lizzie Brown and others. From a judgment allowing Lizzie Brown and others priority in the fund involved, the New Albany National Bank and others appeal.

<p>From Dekalb Circuit Court; Frank M. Powers, Judge.</p> <p>Action by the Deister Concentrator Company against the Deister Machine Company and others. Prom a judgment for - defendants, the plaintiffs appeal.</p>

<p>1. Landlord and Tenant. — Injury to Pedestrian. — Liability of Landlord. — Doors in Sidewalk.- — (Guarding Opening. — In an action for injuries received by a pedestrian falling into a cellarway leading from the sidewalk to the basement of a leased building, the landlord is not liable for negligence in not guarding the opening over the cellarway where the tenant in possession left open the iron grating covering it, nor for failure to provide stops or blocks which would hold the grating in a perpendicular position when raised, thus affording a partial guard to the opening, p. 430.</p> <p>2. Landlord and Tenant. — Repairs to Premises. — It is not the duty of the landlord to keep the leased premises in repair, in the absence of an agreement with-the tenant'to that effect, p. 431.</p> <p>3. Landlord and Tenant. — Injury to Pedestrian. — Nuisance.— Opening in Sidewalk. — Where, in an action by a pedestrian fox-personal injuries received by falling into an unguarded cellarway leading from the sidewalk to the basement of a building, the right of recovery is predicated on the theory that the cellarway was a nuisance when the cover was raised, but it was not contended that, during the ownership of the landlord, the cellarway and doors were not properly constructed or not in good condition, and that the sidewalk was not safe when the doors were closed, the premises did not constitute a nuisaxxce per se, but became so by the act of the tenant in leaving the doors open. p. 431.</p> <p>4. Landlord and Tenant. — Opening in Sidewalk. — Duty of Tenant. —Where doors which cover a cellarway leading from the sidewalk to the basement of a leased building are raised, it is the duty of the tenant in possession to guard the opening, p. 431.</p> <p>5. Landlord and Tenant. — Injuries to Third Persons.- — Liability of Landlord. — Nuisance.—Where property, at the time it is leased, is not in such a condition as to constitute a nuisance in and of itself, but becomes so only by the act of the tenant in possession, and injury to a third person occurs during such possession, the owner is not liable; but where the owner leases premises which are a nuisance in and of themselves, or must, from their nature, become so by use, and the owner receives rent, he is liable, regardless of whether he is in possession, for injuries to third persons flowing from such negligence, p. 433.</p> <p>6. Appeal. — Bill of Exceptions. — Certificate of Judge.- — Sufficiency. —The evidence is properly in the record even though the certificate of the trial judge to the bill of exceptions fails to show that be examined tbe bill before allowing and signing it, since tbe presumption4s that be did so, and tbe sufficiency of tbe certificate is not affected by tbe failure to recite tbe fact therein, p. 434.</p>

<p>From Bartholomew Circuit Court; Hugh Wickens, Judge.</p> <p>Action by Samuel Hamer Williams against the Ohio Farmers Insurance Company. From a judgment for plaintiff, the defendant appeals.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Action by Helen Daywitt, by her next friend, Jane Stewart, against Albert. Daywitt and another. From a judgment for plaintiff, the defendants appeal.

Prom Decatur Circuit Court; Hugh Wickens, Judge. Action by the Brazil R. and B. Company against Will H. Robbins and Charles H. Johnston, doing business under the firm name of W. H. Robbins & Company. Prom a judgment for plaintiff, the defendants appeal.

Prom Madison Superior Court; H. Clarence Austill, Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Madison, against the Herald Publishing Company. From a judgment for relator, the defendant appeals.

<p>From Morgan Circuit Court; Nathan A. Whittaker, Judge.</p> <p>Action by Martin Lake and another against James C. Greer. From a judgment for plaintiffs, the defendant appeals.</p>

<p>Prom Greene Circuit Court; Cyrus E. Davis, Special Judge.</p> <p>Action by the Town of Carlisle against George W. Pirtle. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>From Warrick Circuit Court; Ralph E. Roberts, Judge.</p> <p>Action by Minnie S. Cooksey, administratrix of the estate of Walter Cooksey, deceased, against the Evansville Railways Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Overruling Demurrer to Bad Answer. — ReversiMe Mrror. — Overruling a demurrer to a bad answer is reversible error, even though, the evidence admissible thereunder might have been presented under a general denial, p. 498.</p> <p>2. Sales. — Action for Price. — Answer.—Sufficiency.—In an action on account to collect for goods sold, the averments of the answer are held sufficient to show that plaintiff’s agent, who was indebted to defendant, assumed to have authority to sell the goods and have the price charged to his account with defendant; and that the written order, which advised plaintiff of such assumption of authority, was the only order given for the goods and that they were delivered thereunder, p. 499.</p> <p>3. Sales. — Written Order. — Conditions.—Acceptance by Seller.— Effect. — Where a seller receives a written order for goods showing that the price was to he charged to his , agent and not to the buyer, the seller cannot accept the order and deliver the goods thereunder without being bound by such condition, p. 500.</p> <p>4. Principal and Agent. — Authority of Agent. — Presumption.— There is no presumption that a special agent selling the goods of his principal has authority to pay his personal debts with the goods he sells, p. 500.</p> <p>5. Principal and Agent. — Authority of Agent. — Burden of Proof.— Where, in an action for the price of goods sold, the buyer relies on the agent’s authority to sell the principal’s goods in payment of his personal obligations, the burden is on the buyer to show that the agent had the right to so sell the goods, or that such sale was acquiesced in, or ratified by, the principal, p. 500.</p> <p>6. Sales. — Action for Price. — Answer.—Sufficiency.—In an action on account to collect the price of goods sold, defendant’s answer that the goods were purchased from the seller’s agent under an agreement that they were to be charged to him, and not to defendant, and that such stipulation was embodied in the written order for the goods received and accepted by the seller, is sufficient as against demurrer, p. 501.</p>

Prom Jennings Circuit Court; Robert A. Creigmile, Judge. Proceedings on the petition of Frank Layman for 'a recount of ballots east for the office of township trustee. From an order dismissing his petition, the petitioner appeals.

From Gibson Circuit Court; Simon L. Vandeveer, Judge. Action by Alta O’Brien, administratrix of the estate of William A. O’Brien, deceased, against, the S. W. Little Coal Company. From a judgment for plaintiff, the defendant appeals.

<p>From White Circuit Court; Henry H. Vinton, Special Judge.</p> <p>Action, by Harry C. Eddy against Honey Creek township of White county. Prom a judgment for defendant, the plaintiff appéals.</p>

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Cornelius C. Butler against Harlan H. Butler. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>Municipal Corporations. — Holding Illegal Rape m Village Street.— Injwg to Spectator.- — Recovei'g as for Illegal Act. — Wlhile tbe bolding of a borse race in a village street is a violation of §§2664, 2665 Burns 1914, Acts 1905 pp. 584, 745, yet one wbo goes to attend sucb a race as a spectator, thereby consenting to tbe unlawful act, and, while it is in progress, goes upon tbe street where tbe race is being run and is struck by one of tbe horses and injured, cannot recover, regardless of tbe elements of negligence and contributory negligence, merely because tbe race was held in violation of tbe law.</p>

Prom Dekalb Circuit Court; Emmet A. Bratton, Special Judge. Action by Earl D. Leas, administrator of tbe estate of Sarah A. Rohrbaugh, deceased, against Matilda Rohrbaugh. Prom a judgment for plaintiff, the defendant appeals, and plaintiff moves to dismiss the appeal.

Prom the Industrial Board of Indiana. Action by Frank L. Davis under the Workmen’s Compensation Act against the Union Sanitary Manufacturing Company. Defendent appeals from an award for plaintiff, and the latter moves to dismiss the appeal.

<p>Prom Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Action by Charles C. Dunn against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for defendant, the plaintiff appeals.</p>

From Owen Circuit Court; Robert W. Miers, Judge. Action by the State of Indiana, on the relation of Salt Creek civil township and Salt Creek school township of the County of Monroe. Plaintiffs appeal from a judgment for defendants, and the latter move to dismiss the appeal.

<p>Prom Pike Circuit Court; John L. Bretz, Judge.</p> <p>Action by Louis Krueger against Jacob V. Stimson. Prom a judgment for plaintiff, tbe defendant appeals.</p>

<p>1. Municipal Corporations. — Street Improvements. — Foreclosure of Lien. — Findings,.—Revieio.—Where, in an action to foreclose the statutory lien securing a street improvement bond, defendant contended that plaintiff had at no time been in possession of the bond and that it was held by the paving contractor, defendant’s predecessor in title, at the time he procured a conveyance of the lot involved in payment of the bond and assessment, a finding for defendant is a finding in his favor on the issue of possession of the bond; and, there being some evidence to support such finding, .it is conclusive on appeal, p. 578.</p> <p>2. Municipal Corporations. — Street Improvements. — Foreclosure of Lien. — Evidence.—Sufficiency.—In an action to foreclose the statutory lien securing a street improvement bond, the evidence is held sufficient to warrant a finding that neither the assignment of the bond nor a copy thereof was left at the office of the town clerk, p. 578.</p> <p>3. Vendor] and Purchasbr. — Street Improvements. — Proceedings.— Record. — notice.—The proceedings of municipal corporations in street improvements are required by law to be duly recorded and they are open to public inspection, and persons who acquire real estate encumbered by assessments evidenced by such records are bound by the constructive notice given thereby when duly kept; but only records which the law requires to be kept and which have actually been so kept as to impart notice to those who examine them are binding, p. 580.</p> <p>4. Municipal Corporations. — Street Improvements. — -Bonds.— Lien. — Merger.-—Discharge of Lien. — Where a paving contractor, after assigning street improvement bonds, falsely represented that he was still the owner thereof and thereby induced the owner of real estate assessed for the improvement to convey the real estate to him in consideration of the satisfaction of the improvement lien against the property, the lien was not merged in the contractor’s title and it could be foreclosed against his grantee, since the lien of the total bond issue covered the property of all the owners who signed waivers and the lien of the assessment for which the bonds were issued is by statute (§4296 Burns 1901, Acts 1899 p. 237) declared to be equal upon the property assessed without priority of one of such bonds over any other, and to discharge an improvement lien against any particular tract or lot there must have been payment in full of the assessment against it to the person lawfully entitled to receive the same. p. 582.</p> <p>5. Municipal Corporations. — Street Improvements. — Bonds.—Record. — Notice.—Where bonds are payable to a person named or bearer, the record of the improvement proceeding is notice to all' that such obligation may rightfully be owned and in the possession of some person other than the one named without any assignment or record of transfer, p. 583.</p> <p>6. Municipal Corporations. — Street Improvements. — Bonds.—Notice. — The law charges the owner of property assessed for a street improvement with the knowledge that a particular bond is not issued to cover the assessment of any one tract of realty affected by the improvement except as the amount of such assessment is a part of the aggregate sum for which the bonds are issued, p. 583.</p> <p>7. Vendor and Purchaser. — Street Improvements. — Record of Proceedings. — Notice.—Where it appeared in an action to foreclose the statutory lien securing a street improvement bond, that the record kept by the municipal corporation showed the proceedings for the improvement of the street, the making of the assessment, the waiver filed hy the owner of the realty involved in the action, the issuance of the bonds payable to the contractor or bearer, and that as to the lot in suit such assessment was unsatisfied, a purchaser of the lot is charged with constructive notice of such facts, and with such other facts as an ordinarily diligent search would have disclosed, since the facts shown hy the record are sufficient to put him on inquiry, p. 584.</p> <p>8. Municipal Corporations. — Street Improvements. — Conveyance of Land Assessed. — Deed.—Notice.—Where a paving contractor after assigning a street improvement bond, falsely represented that he was still the owner thereof and thereby procured the owner of land assessed for the improvement to convey the same to him in consideration of the satisfaction of the lien against the property, the record of such deed did not give the holder of the bond notice of any fact that would defeat its right'to foreclose the lien of the assessment if it was -otherwise entitled to do so. p. 585.</p> <p>9. Limitation of Actions. — Bonds Payable in Installments. — Action to Foreclose Lien. — Computation of Period of Limitation.— An action brought on October 16, 1913, to foreclose the statutory lien securing a street improvement bond issued in May, 1902, with tl}e last installment to run ten years from date before maturity, is not barred hy the five, six, or ten-year statute of limitations, p. 585.</p>

From Porter Circuit Court; H. H. Loring, Judge. Action by Wilfred H. Sanders against The Chicago, Lake Shore and South Bend Railway Company. From a judgment for plaintiff, the defendant appeals, and plaintiff moves to dismiss the appeal.

<p>.Appeal. — Questions Presented. — Objections to Instructions. — Ruling on Motion for New Trial. — Where the sole error assigned on appeal was the overruling of the motion for a new trial and under such assignment the appellant presents only the question of alleged error in an instruction, but the brief fails to disclose that any exception was taken or reserved to the trial court’s ruling on the motion, no question is presented for review.</p>

<p>From Lawrence Circuit Court; Oren O. Swails, Judge.</p> <p>Action by Charles M. Poston' against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Marion Superior Court (74,997) ; V. G. Clifford, Judge.</p> <p>Action by Hoosier Construction Company against George Seibert. From a judgment for defendant, the plaintiff appeals.</p>

Prom Fountain Circuit Court; Isaac E. Schoonover, Judge. Action by James Bingham, receiver- of the Columbia Casualty Company, against the Newtown Bank and others. From the judgment rendered, the receiver appeals.

<p>Vendor and Purchaser. — Gontradt for Sale of Beatty. — Forfeiture for Nonpayment of Installments. — Where a contract for the sale of land stipulated that the purchaser should pay the purchase price in monthly installments and expressly made time in the payment of deferred installments material and of the essence of the contract, and it contained a forfeiture clause requiring the purchaser to make his payments at the times specified to prevent a forfeiture of the money paid, his failure to make payments for more than a year without any fault of the vendor-entitled the latter to treat such failure as an abandonment and to forfeit the contract, so that the purchaser, in an action for money had and received, could not recover the money paid on the contract, even though he made a belated tender of the unpaid portion of the purchase price and demanded a deed.</p>

<p>From Decatur Circuit Court; Hugh Wickens, Judge.</p> <p>Action by James Jinks against Irene "Wilson and another. From a judgment for plaintiff, the defendants appeal.</p>

<p>Prom LaPorte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Charles L. Jeffrey and another against Edgar D. Crumpaeker. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Appeal. — Assignments of Error. — Question Presented. — Exceptions. — Assignments of error that are not based on exceptions shown in the record cannot be considered on appeal, p. 637.</p> <p>2. Appeal. — Agreed Case. — Presenting Questions for Review. — Exceptions. — A motion for a new trial is not contemplated in an agreed case, there being no question for decision except the law • arising upon the agreed facts, and a question of law in such a case, to be presented on appeal, must be saved by an exception to the decision of the trial court taken at the proper time. P'. 637.</p> <p>3. Appeal. — Agreed Statement of Facts. — Presenting Question for Review. — Motion for a New Trial. — Bill of Exceptions. — Where issues are joined upon an agreed statement of facts, a motion for a new trial is required to raise any question on appeal involving the evidence, and the agreed statement of facts must be made a part of the record by a bill of exceptions, and the record must affirmatively show that it contains all the evidence that was adduced at the trial, p. 637.</p>

<p>1. Partition. — Commissioner for Sale of Land. — Duties.—Liability on Bond. — The duties of a commissioner appointed to make the sale of land in á partition proceeding are determined by the statutes and the orders of the court, and he is an instrument of the court primarily answerable thereto, and only becomes liable on his bond when he fails to faithfully discharge the duties of his trust, p. 642.</p> <p>2. Partition. — Parties.—Lienholders.—Distribution of Proceeds.— In partition suits it is proper to make those who hold liens on undivided interests in the land parties to the action, and the court has power to protect their interests and, in case of sale, to provide for the payment or satisfaction of such liens out of funds derived from the sale of such interests to' the extent that the net proceeds from the sale thereof shall be sufficient so to do. p. 642.</p> <p>3. Partition. — Commissioner for Sale of Land. — Duties.—Liability to Lienholder. — -A commissioner for the sale of land in partition who follows the order of sale and distributes the funds according thereto has discharged the obligation of his trust in that respect, and he is not liable to one who acquired a lien on the real estate subsequent to the order of sale and the appointment of the commissioner, unless such lienholder before the funds were distributed duly petitioned the court and obtained an order which entitled him to receive payment out of the funds derived from the sale, p.643.</p> <p>4. Judgment. — Money Judgment. — Enforcement.—Duty of Owner. —Money judgments are not self-executing, and in the collection thereof the duty rests upon the owner of the judgment to take the necessary steps provided by law for their enforcement, and if he fails to do so he cannot place the responsibility for such failure upon others who have no legal duty resting upon them in respect thereto, p. 644.</p> <p>5. Partition. — Sale of Land. — Proceeds.—Distribution.—Commissioner’s Bond. — Liability.—Where, in a partition proceeding, an order' is made for the sale of land and it is sold in accordance with the order, one holding a judgment against one of the parties in partition who was not himself a party and who did not file a transcript with the clerk until after the entry of the order of sale cannot recover .on the commissioner’s bond because the commissioner, even though notified of the judgment creditor’s claim, did not pay him the amount thereof, p. 644.</p> <p>6. Partition. — Judgment against Parly. — Presumptions.—The mere fact that a judgment is of record and appears unsatisfied is not conclusive evidence that it is unpaid or that there is not some valid reason why funds in the hands of the commissioner in a partition proceeding should not be applied to such a judgment against an heir to the lands sold. p. 645.</p> <p>7. Judgment.— Money Judgment.— Lien.— The lien of a money judgment is general and not specific, p. 645.</p>

<p>1. Guardian and Waed. — Final Settlements. — Vacating.—Applications to set aside final settlements of guardians must show that the person seeking to set it aside were not notified to appear and did not appear at the hearing of the final settlement report, p. 647.</p> <p>2. Guardian and Ward. — Successive GuwrdiamMps. — Attach on First Guardian's Accounts after Final Settlement. — Where a. guardian resigned and was succeeded by another, who made a final settlement of the estate, an heir to the ward could not, after such final settlement, recover compensation allowed the first guardian at the time of making her last report and penalties for alleged failure to comply with the statutes in making current reports, it not appearing from the heirs’ complaint that she was not notified to appear and was not present at the hearing of the final report, at which time error in partial reports should be presented, since the attack on the last report of the first guardian, which was not a final report, was, under the allegations of the complaint, an attempt to question the final settlement indirectly and a final report which has been approved cannot be questioned on a collateral proceeding, p. 647.</p>

<p>1. Municipal Coepoiiations. — Personal Injuries. — Defective Streets. —Notice.—Failure to give a town notice in writing containing a brief general description of the time, place, cause and nature of the injury, as required by §8962 Burns 1914, Acts 1907 p. 383, 408, precludes the right to maintain an action for personal injuries resulting from any defect in the condition of a street or alley, p. 650.</p> <p>2. Municipal Cobpokations. — Personal Injuries. — Notice to City or Town. — Construction.—Sufficiency.—In determining whether the time, the place and the nature of the injury, etc., are disclosed with sufficient clearness in a notice served on a city pursuant to §8962 Burns 1914, Acts 1907 p. 383, 408, a liberal construction will be applied, and relief will not be denied when by any fair and reasonable construction it can be said that it substantially complies with the statute, but the notice must be sufficiently definite and accurate as to the place of injury that the officers of the municipality will be able to locate it without the aid of any extraneous information, so that they may ascertain the facts and determine the question of liability before suit is brought, p. 651.</p> <p>3. Municipal Cobporations.— Personal Injuries. — Notice.— Sufficiency. — Description of Place. — A notice to a town that plaintiff had been injured by a fall on a street leading from the town to a certain highway, on the hill south of the street ear barn where the street was being improved, and that her fall was caused by the uneven surface of the street and sidewalks, ■ is insufficient to comply with the requirements of §S962 Burns 1914, Acts 1907 p. 383, 408, since no unusual place in the street is designated, and the only defect indicated is not even definitely located at any particular place in the street described, p. 652.</p>

<p>1. Bastards. — Parentage of Child. — Evidence.—Sivfiiciency.—In a bastardy proceeding, evidence by. tbe relatrix that the only occasion upon which she ever had intercourse was with the defendant on a certain date, which was corroborated by the testimony of other witnesses that the defendant had admitted the act of intercourse, and by the attending physician that relatrix had given birth to a fully developed child after the usual period of gestation had elapsed, was sufficient to warrant in finding that the defendant was the father of relatrix’s child, even though the evidence adduced at the trial was conflicting, p. 656.</p> <p>2. Bastards. — Bastardy Proceeding. — Presence of CMld in Court. —The mere fact that during the trial of a paternity suit the mother was permitted by the court, over the objection of the defendant, to have her child with her in the court room where the jdry might see it affords no cause for a reversal, p. 657.</p> <p>3. Appeal. — -Review.— -Hanhless Error.— Presence of OMld in Court. — Instruction.—Any possible harm which might have resulted to the defendant in a bastardy proceeding by the court’s action in permitting the relatrix to bring her child into the courtroom during the trial was cured by an instruction that in passing upon the question whether the defendant was the father of the child, the jury should not take into consideration the appearance of the child’s countenance or draw any conclusion whatever from the, child’s appearance, but should consider only the oral testimony, pp. 658, 659.</p> <p>4. Appeal. — Question Reviewable. — Misconduct of State. — Record. —Alleged misconduct on the part of the State, in a trial of a bastardy proceeding, in permitting the relatrix to exhibit her child to the jury contrary to the- direction of the court is, not available for reversal of the judgment, where the record shows no order of the court directing relatrix not to bring her child into the presence of the jury and that defendant’s motion 'for such an order was overruled, p. 658.</p> <p>5. Appeal. — Bill of Exceptions. — Authentication.—Matters set out in a bill of exceptions not authenticated by the signature of the court cannot be considered on appeal, even though such bill is brought into the record by being incorporated in another bill. p.'659.</p> <p>6. Appeal. — Harmless Error. — Misconduct of Counsel. — Cure by Instruction. — In a bastardy proceeding, alleged misconduct of relatrix’ attorney during the argument to the jury in pointing at the child and saying that there could be no question that a child was conceived, “because there’s the evidence,” even if constituting reversible error when properly presented on-appeal, was harmless where the jury was instructed not to consider the appearance of the child, but to decide the case on the oral testimony alone, p. 660.</p> <p>7. Appeal. — Question Reviewable. — Misconduct of Counsel.- — Bill of Exceptions. — Record.—Where, in a paternity suit, misconduct of the attorney, for the State in the presence of the court and jury were relied on for a reversal of the judgment of the trial court, mere affidavits as to the facts, accompanying the motion for a new trial, cannot take the place or serve the purpose of an unsigned bill of exception, by which appellant attempted to present such facts, and unless the apts complained of are brought into the record by a proper bill of exceptions no question relating thereto is presented, p. 660.</p> <p>8. Appeal. — Questions Revietoable. — Misconduct of Counsel. — Objections. — In ai\ appeal in a bastardy proceeding, alleged misconduct of opposing counsel during the trial of the cause is not available to the defendant where it does not appear from the record that he at the time objected, or called the court’s attention, to the acts complained of. p. 661.</p> <p>9. Appeal. — Assignment of Error. — Grounds.—That “the judgment appealed from is not fairly supported by the evidence” and that it “is clearly against the weight of the evidence,” are not grounds for independent assignment of error, p. 661.</p> <p>10. Appeal. — Assignment of Errot'. — •Grounds.—Refusal of Court to Sign a Bill of Exceptions. — No question is presented for review on appeal by an assignment of error which attempts to present an exception to the refusal of the trial court to sign a bill of exceptions, p. 662.</p> <p>11. Appeal. — -Remeto.—Harmless Error. — Refusal of Judge to Sign Bill of Exceptions. — The refusal of the trial judge to sign a bill of exceptions was harmless error, where the questions attempted to be presented by the bill would in no event afford any ground, for a reversal of the judgment, p. 662.</p>

Prom Morgan Circuit Court; Nathan A. Whitaker, Judge. Action by Alpha C. Croly, by her next friend Joseph Croly, against the Indianapolis Traction and Terminal Company. Prom a judgment for defendant, the plaintiff appeals.

<p>From Marion. Juvenile Court (10,481a); Frank J. Lahr, Judge.</p> <p>Action by the State of Indiana against Cecil Parker. From a judgment of conviction, the defendant appeals.</p>

<p>From LaPorte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Albert S. Taylor against Sam Welty. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>From Daviess Circuit Court; James W. Ogdon, Judge.</p> <p>Action by the National Live Stock Insurance Company against Harry M. "Wolfe. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Walter C. Wood against Elias A. D. Chaney,administrator of the estate of Martha E. Bell, deceased. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Harmless Error. — Withdrawal of Interrogatory. — Where, in an action on a note, the jury answered affirmatively an interrogatory as to whether defendant A signed the note in suit as surety for two of the defendants and by their verdict found that the note was given for a partnership debt of such defendants and was executed by A as surety for them, the withdrawal of an interrogatory, asking whether A agreed with one of the partners that he would stand for the other partner and make good one-half of the partnership business, was harmless, especially as even an affirmative answer to such question would not have been in irreconcilable conflict with the general verdict, p. 697.</p> <p>2. Trial. — Verdict.—Conflicting Ans-ioers to Interrogatories. — Answers to interrogatories which are contradictory neutralize each other and the general verdict prevails, p. 698.</p> <p>3. Appeal. — Briefs.—Questions Presented. — Rules of Court. — No question is presented for review as to alleged error in the giving of instructions where appellant fails to set them out in his brief or to show that any exceptions were reserved to those complained of and no specific point or proposition is directed to the alleged error as required by the fifth clause of Rule 22 of the Appellate Court, p. 699.</p>

From Wayne Circuit Court; Daniel W. Comstock, Special Judge. Action between the Dickinson Trust Company, guardian of M'a-belle M. Howard and Ruth M. Howard, and Thomas J. Study, guardian ad litem of Herbert Myers, and others. From the judg- ment rendered, the former appeals.

From the Marion Superior Court (80,406) ; John J. Rochford, Judge. Action between The Cleveland, Cincinnati and St. Louis Railway Company and Thomas Wise, administrator of the estate of Thomas F. Wise, deceased. From a judgment for the latter, the former appeals.

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Samuel W. Harter against the Board of Commissioners of Boone county.</p>