Volume 7 — Indiana Appellate Court Reports

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

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

<p>Evidence. — Pleadings and Papers aPart Thereof. — Competent Evidence. —All pleadings and papers which are a part thereof on file in a cause are a part of the record and can be commented on by counsel, to the jury, without being introduced in evidence; but if introduced in evidence, the admission will not be erroneous, and the purpose for which they may be considered by the jury may be regulated by instructions from the court.</p> <p>Appellate Coubt Bbactice. — Becord.—Marginal Notes. — Eailwe to Designate Place of Error in Becord. — Where error is alleged by counsel, but no part of the record is designated where it may be found, and the record contains no marginal notes, the appellate tribunal will not search the record for the alleged error.</p>

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

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

<p>Criminal Law. — Trespass.—Description of Land. — In an indictment for trespass, it is not necessary to specifically describe the lands alleged to have been unlawfully entered upon.</p>

<p>Decedents’ Estates. — Statute Construed. — Administrator de bonis non after Final Settlement. — Remedial Statitte. — Retroactive Statute. — The act of March 5, 1891, giving to persons interested in a decedent’s estate the right to have an administrator de bonis non appointed, after a final settlement of the estate has been made, to administer on assets of the estate not included in the former administration, is remedial, and the remedy given is cumulative, being additional to the remedy given by section 2408, R. S. 1881; and, as the act simply gives a remedy for an existing right, it is retroactive as well as prospective in its operation.</p> <p>Same. — Administrator de bonis non after Final Settlement. — Method of Procedure. — Defenses.—Plea in Abatement. — Plea in Bar. — Where an administrator de bonis non is appointed after final settlement of an estate, he proceeds in all respects as other administrators, and if, among the assets not administered, there is a chose in action due the estate, such administrator may institute suit and recover whatever may be due, and the debtor is entitled to the benefit of all defenses that would be available to him in any other action for the same demand; and the validity of the appointment of such administrator can only be questioned by a direct attack, and the right of such administrator to maintain the action can only be tested by plea in abatement.</p> <p>Same. — Final Settlement. — What an Adjudication of. — The final settlement of an estate by an administrator, upon such notice as the statute prescribes, is an adjudication of all matters properly involved in such settlement; but matters which have not been wholly or in part subject to the process of administration can not be said to have been adjudicated.</p> <p>Same. — Administrator de bonis non after Final Settlement. — Appointment of. — How Attached. — Burden of Proof. — Presumption. — In the appointment of an administrator de bonis non after final settlement of an estate, it is the duty of the court to determine whether there are assets unadministered; and after the appointment is made, it can not be attacked in a collateral proceeding; and, if attacked in a direct proceeding, the burden of showing the invalidity will be upon the attacking party, and every presumption will be in favor of the validity of the appointment.</p> <p>Same. — Administrator.—Complaint.—Proferí of Letters. — Plea in Abate-merit. — "Where suit is instituted by such administrator de bonis non, he need only aver that he is the administrator, and need not make profert of his letters; nor can his right to sue be questioned, unless the defendant files a plea in abatement denying such right.</p> <p>Statutory Construction. — When Retroactive. — Remedial Statute.— Vested Right. — Ordinarily, statutes can not be made to operate retroactively, unless a contrary intention clearly and strongly appears, if by making them so to act vested rights would be affected; but this rule can not be invoked in cases where no new right is given or taken away, but only a new remedy is afforded for the enforcement of a right already existing.</p> <p>Dissenting opinion by Lotz, J.</p>

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

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

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

<p>Garnishment. — Jurisdiction.—Judgment and Payment, When Will Not Protect Garnishee. — Default of Garnishee a Confession of Liability.— Amount'of Liability. — Practice.—It is incumbent upon agarnishee defendant to see that the court has jurisdiction of the subject-matter and the person of the principal defendant; for, in the absence of such jurisdiction, a judgment against such garnishee and the payment thereof will afford him no protection, and where the judgment against the garnishee is taken by default, such default amounts to a confession by the garnishee of his indebtedness to the appellee, but not as to the amount; and evidence may afterwards be heard by the court as to the amount of such indebtedness.</p> <p>Judgment. — By Default. — Question of Jurisdiction Not Waived. — Now Raised. — Arrest of Judgment. — Appeal.—Where a defendant fails to demur or answer to an action, and judgment is taken by default, jurisdiction of the court over the subject-matter or person is not waived thereby, but the question may be raised by motion in arrest of judgment, or by assignment of error on appeal.</p> <p>Jurisdiction. — Private Corporation. — Action Against.— Where Brought. —An action against a private corporation for the recovery of money on a personal judgment previously rendered is a personal action, and may be brought in any county where the defendant has an agency connected with such business as the action grew out of.</p> <p>Assignment oe Errors. — Jurisdiction on Appeal. — The errors assigned give jurisdiction to the appellate tribunal, and without such an assignment, no question whatever can be considered; and errors not well assigned will be disregarded.</p> <p>New Trial. — When in Order. — Judgment by Default. — A motion for a new trial is not in order where a judgment has been taken by default.</p>

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

<p>Verdict. — Instruction to Jury to Peturn Verdict in Favor of a Party.— When Erroneous. — An instruction to return a verdict in favor of one of the parties to an action can only be justified when there is no evidence which would sustain a different verdict.</p> <p>Promissory Note. — Material Alterations by Payee. — Pelease of Surety. ■ — A surety on a promissory note is released by a material alteration of the body of a note, made by the payee, with knowledge of the suretyship, without the surety’s consent, and after it has been signed by the surety and is apparently complete.</p> <p>Same. — Alteration of Note. — Limitation of Pule. — The power to fill blanks in a promissory note which has previously been signed does not include the power to make alterations or additions to a completed note.</p> <p>Same. — Material Alteration. — Pelease of Surety. — Where a blank note was presented by A., the maker, to B. and 0. for their signatures as sureties thereon for the purpose of enabling A. to obtain a loan of a certain sum of money from E., who signed it as sureties, and A. presented the same blank note to D. for the same purpose, who signed it, and filled in the blanks, making E. the payee, and making the note complete; and upon presentment of the note to E. signed by A., and B., 0. and D. as sureties, E. objected tojthe note being made payable to him, and upon the suggestion of A. added the word “cashier” to his name in the note, without the knowledge and consent of the sureties, he being at the time cashier of the bank which subsequently sued on the note in the bank name, the addition of the word “cashier” to the payee’s name in the note was a material alteration, making the bank the payee instead of E., and worked a release of the sureties, B., 0. and D.</p> <p>Same. — Alteration.—Descriptive Appellation. — Exception to Pule. — The-law as to the addition of the phrase “cashier” to the name of the payee of the note, as above mentioned, is an exception to the general rule that the addition of a descriptive appellation to a name does not-add to nor detract from the name, nor change the legal effect.</p> <p>Same. — Extension of Time of Payment. — Pelease of Surety. — Defenses Waived. — A contract, upon a valuable consideration, entered into between the payee and principal debtor of a promissory note, whereby the time of payment is definitely extended, releases the sureties thereon, unless they consent thereto or the note contains a provision waiving all defenses on such ground.</p>

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

<p>Supreme Court. — Jurisdiction.—Appeal from Proceeding to Widen Street. — Common Council. — Where proceedings are instituted in a city council tQ_ widen a street, and an appeal is. taken from such original proceedings, the jurisdiction is in the Supreme Court.</p>

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

<p>Mechanic’s Lien. — Subcontractor—Action to Foreclose Lien.- — Sufficiency of Complaint on Appeal. — In an action to enforce a mechanic’s lien by a subcontractor, the complaint was not objected to in the trial court, and only objected to on appeal on the ground that it does not allege the “value of the labor or material furnished.” The complaint not having been tested by demurrer is sufficient on appeal on the objection urged against it.</p> <p>Same. — Special Finding. — Sufficiency.— Value of Labor and Materials.— In such case a special finding was that the value of the work and material, as agreed upon, was $225, and that of such amount $34.93 had been paid, leaving a balance of §190.07 due on the claim. Such finding is sufficient to show that the materials furnished and the work done were of the value agreed upon.</p> <p>Payment. — Items of Account. — Payment on Account Generally.— How Applied. — Where a contractor was indebted to a subcontractor in a number of items of account for labor and material furnished in the construction of several houses for different persons, a payment by the contractor to the subcontractor of a sum of money without designating its application, can not be said to be a payment of any particular item of account, and especially can not be made to apply to items of account which accrued after the payment as aforesaid.</p>

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

<p>Streets and Alleys. — Assessments for Improvements. — Notice.—Void Assessment. — Collateral Attach. — Where proceedings are instituted for the improvement of a street in an incorporated town or a city, the law requiring notice of assessment of property to defray the expense of such improvement must be substantially complied with, or the assessments will be void, notice being necessary to give jurisdiction of the property and the person of the owner, and, consequently, to the validity of the lien itself. And the assessments being void, they are subject to collateral attack. But in such case, where some notice has been given, and the tribunal making the assessment determines that the notice is sufficient, the property-owner will not, as a rule, be permitted to attack such proceeding collaterally.</p>

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

<p>Appellate Court Practice.- — Insufficiency of Appellant's Complaint.— When Subsequent Errors May be Disregarded and Judgment Affirmed. —Exception to. — To the rule that where a complaint fails to state a cause of action, and this failure is raised by demurrer and assigned as cross-error, any subsequent errors may be disregarded and the judgment affirmed, there exists the exception that if the complaint can be so amended as to cure the defects therein, the court may reverse the judgment at the costs of the appellant.</p> <p>Judgment.— Upon Facts Found. — Complaint.—Defects Cured. — Practice. — In considering the right of a plaintiff to judgment upon the facts, many defects in the complaint will be regarded as cured by the evidence and facts found; and where the facts show a party entitled to relief, he will not be debarred therefrom by any undue technicality.</p> <p>Municipal Corporation. — Unsafe Condition of Street. — Liability for. —Notice.—A municipal corporation is not an insurer of the safety of its streets, hut is bound to exercise' reasonable care and diligence to keep them in a reasonably safe condition for use, which includes the duty to keep them free from dangerous obstructions; and liability attaches for negligence in regard thereto, after notice is imputed to it, whether such notice be actual or constructive.</p> <p>Same. — Obstruction of Street. — Notice.—Liability.— Where a pile of brush two feet high projecting eight feet into one of the principal streets of a town, near the business portion thereof, remained in such position for three days, the corporation was chargeable with notice of such obstruction, and with liability for any damages resulting from such negligence, where the injured person is free from contributory negligence.</p>

<p>Taxes. — County Boards of Review. — State Board of Tax Commissioners. —Judicial Powers. — Conclusiveness of.- — Not Controllable by Courts.— County boards of review and the State Board of Tax Commissioners are clothed with quasi judicial powers in bringing about uniformity and equality of taxation. The acts of these boards are judicial in their character, and their judgments are not open to collateral attack. If errors or irregularities are committed, they must be corrected in the mode pointed out by the statute; and if not so cor< rected, they are conclusive; for courts have not the power to control their discretion.</p>

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

<p>Costs. — Subsequent Trial. — Stay of Proceedings Until Payment of Accrued Costs. — Discretionary Act. ■ — When Seviewable. — Practice.- — ■ Where a second action is waged between the same parties for the same cause, the presumption is that the second action is vexatious, and unless the presumption is overcome, the court, in all such cases, will order the proceedings stayed until the costs of the first suit are paid. The burden of removing such presumption rests upon the plaintiff, and the presumption fades away before the slightest countervailing evidence. Whether such proceeding will be stayed or not, is within the sound discretion of the court, which can not be reviewed, except where there is clearly an abuse of discretion.</p>

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

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

<p>Personal Property. — Beal Fixture. — When Becomes a Chattel Fixture. —Assignee's Sale. — Scales.—An owner of real estate abutting on a street erected scales in the street adjoining such property, and, afterwards, while the scales were so situate, made an assignment for the benefit of creditors, such real estate and scales being among the property assigned. The assignee sold the scales to A. as personal property, which sale was approved by the court; and on the day following such sale the assignee sold the real estate to B., who knew of the sale of the scales. B. afterwards sold the real estate to 0., who also knew of the sale of the scales. Afterwards 0. purchased the inchoate interest of the assignor’s wife in the real estate, and, subsequent thereto, A. removed the scales. 0. seeks to recover of A. the value of the scales, or damages for trespass on the real estate.</p> <p>Held, that as the scales were treated as personal property by the trustee, with the sanction and approval of the court, and without objection of any of the parties interested, the claim of 0. is without merit, and he can not recover thereon.</p>

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

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

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

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

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

<p>Conversion. — Parties to. — Demand.—Waiver.—A. was a tenant of land belonging to B. A., as such tenant, set off to B. bis share of the wheat raised on the land. B. and C. both claimed to be the owners of the wheat, and to settle the question of such ownership, B., in January, 1891, recovered a judgment in replevin against C. and A. for the recovery of the wheat, or the value thereof from A. Pending such suit, A., the agent of C., hauled the wheat and stored it in the barn of D.; and E., as an employe of C., hauled the wheat from D.’s bam to the elevator of E., and sold it to G., as the agent of E. B. brought suit against A., C., D., E., F. and G. to recover the value of the wheat alleged to have been converted to their use.</p> <p>Held, that D., E. and G. were in nowise parties to the conversion.</p> <p>Held, also, that as a demand was not made of F. for the wheat, the fact that he purchased the wheat and took possession of it does not make him liable, unless it be shown that he had converted it to his own use, and could not have delivered it, even though a demand had been made.</p> <p>Held, also, that the insistence' of appellants in their brief, that they were entitled to a judgment against all of the defendants, if they were entitled to any judgment, amounted to a waiver of a consideration of the right they might have against any one or more of the defendants.</p> <p>Dissenting opinion by Gavin, J.</p> <p>Opinion on petition for rehearing by K'oss, J.</p>

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

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

<p>Pleading. — Delivery Bond. — When Indorsement Need not he Alleged.— Section 747, R. S. 1881, requiring that a delivery bond, when forfeited, shall be indorsed “forfeited,” etc., does not apply to bonds given to constables, and in an action on such a bond the complaint need not aver that the bond had been so indorsed.</p> <p>Same. — Delivery Bond. — Judgment of Court of Inferior Jurisdiction.— Sufficiency of Complaint. — In an action on a delivery bond based on a judgment of a court of inferior jurisdiction, a statement in the complaint that the plaintiffs recovered judgment, can not be held equivalent to the statutory allegation that the judgment was “duly given or made.” ></p> <p>Bond. — Delivery Bond. — Suit on. — Amount of Becovery. — Where suit is brought on a delivery bond, and a judgment recovered by the plaintiff, he is entitled to recover ten per centum damages on the full amount due on the execution.</p> <p>Same. — Delivery Bond. — Liability on. — Beetraining Order. — Appeal.— Affirmance. — Where a delivery bond has been executed, and subsequent thereto a restraining order was issued by the Supreme Court extending to January 8, 1892, and judgment of affirmance was rendered December 17, 1891, and afterwards, by a nunc pro tunc order, the court adjudged that the restraining order was, by virtue of the affirmance, dissolved, the bondsmen were excused from delivering the property so long as the restraining order was in force; but when such order was dissolved by the affirmance, and the hands of the officer who Held the execution were loosed, then the property should be returned, and, in default thereof, the bondsmen were liable on the bond.</p>

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

<p>Judgment. — :Action to Beview. — Demurrer to Complaint. — When Judgment Should Follow Buling on Demurrer. — Where a proceeding is instituted to review a judgment, and a demurrer is filed to the complaint therein, the ruling on the demurrer to the complaint to review raises every question presented for review, and if the copy of the record and proceedings is complete and true, judgment should follow the ruling of the court upon demurrer, unless the defendant answers matter arising after the rendition of the judgment, or such errors as would have been available as cross-errors on appeal.</p> <p>Same. — Action to Review. — Defenses.—In an action to review a judgment for errors of law appearing on the face of the record, the defendant can answer any other error apparent on the face of the record which, if assigned as cross-error on appeal, would result in an affirmance of the judgment; or he may answer such defenses as the statute of limitation, the pendency of an appeal from the judgment, payment, or he may deny that the record set out in ’ the complaint is a correct and complete copy of the record sought to be reviewed.</p> <p>Same. — Review of.— Venue. — Complaint Must Bring Complete Record.— An action to review a judgment must be brought in the court in which the judgment was rendered, and the complaint must bring before the court a full and complete record of the judgment and proceedings sought to be reviewed; and only such defenses are permissible as would be available on appeal from the original judgment.</p> <p>Record. — Motions and Rulings thereon. — Mow Made Part of Record.— Practice. — Motions to strike out, as well as the rulings of the court thereon, are made part of the record only by proper bill of exceptions or by order of the court.</p> <p>Appellate Court. — Jurisdiction.—Review of Judgment. — The Appellate Court has jurisdiction of an appeal from a proceeding in review of judgment, where it would have had jurisdiction had an appeal been prosecuted from the original judgment reviewed.</p>

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

<p>Baileoad. — Bules and Begulations. — Duty of Passenger to Acquaint Himself With. — A railroad company has the right, and it is its duty, to operate its trains in accordance with established rules, and it is not bound to infringe upon its rules for the accommodation of a passenger. It is also the duty of one about to become a passenger to use reasonable diligence in acquainting himself with such rules and regulations of the company as may affect him as a passenger, and if he fails to do so and makes a mistake, he has no remedy.</p> <p>Same. — Passenger.-—Return Goupon to Station at Which Train is not Scheduled to Stop. — Refusal to Accept. — Complaint.—Necessary Allegation. — Where a person bought a roundtrip ticket entitling him to a passage both ways between the stations A. and B. on a certain line of railroad, and haying made the trip from A. to B., said passenger boarded a passenger train running on the line of railroad, from B. to A., on his return trip, and his fare being demanded, he presented the return coupon, which was still in life, and which the conductor refused, and demanded §2.20 fare of said passenger, which, to prevent being expelled, he paid; and in an action brought by said passenger for the alleged wrongful demanding and receiving of the fare, §2.20, and the resulting injury to his feelings, it not appearing in the complaint that said train was scheduled to stop at A., but appearing therefrom that all trains were required by law to stop at A., it being a place where several railroads cross each other, the complaint was insufficient for failure to allege that A. was a station at which said train was scheduled to stop, the railroad company not being bound to receive the coupon, unless said train, by schedule, was required to stop at A., it being presumed that the fare demanded, §2.20, was the fare to the first station at which said train was scheduled to stop beyond where the plaintiff took passage. The mere fact that plaintiff and others, when the train stopped at the crossing at A., availed themselves of the opportunity of alighting therefrom, can not affect the rights of the company.</p>

<p>Contributory Negligence. — Complaint.—General Averment of Freedom from. — Specific Allegations. — In an action based on tort, the general allegation that the plaintiff is free from contributory negligence is sufficient, unless it clearly appears from the facts pleaded that the person injured was guilty of such negligence; and the facts relied upon to show proper care on the part of the injured person need not be specially pleaded.</p> <p>Same. — Question of Fact, of Law. — Railroad.—Personal Injury. — A passenger train was standing on a side track which crossed a public street extending north and south, the rear end of which train obstructed the highway except about ten feet on the west, and on another track just south of the one occupied by the passenger train was another track crossing said street, on which there was a switch engine standing headed to the west, the rear end. of the engine being within about five feet of the west side of the street. A. approached the crossing and observed the position of the switch engine and passenger train, and that they were standing in the same positions as when he had noticed them some fifty minutes previous thereto, and started to cross the south track and go around the rear end of the passenger, but before he could reach the rear end thereof, the switch engine was suddenly and rapidly started toward him, without signal or warning, and concluding that he could not with safety proceed farther, he turned and made an effort to get off the track, but before he succeeded in doing so, one foot remaining on the track when he was struck by the engine and received the injuries from which he died in a few hours thereafter.</p> <p>Held, that on the facts and circumstances disclosed, the court can not say, as a matter of law, that A. was guilty of contributory negligence.</p> <p>Railroad. — Negligence.—Personal Injury. — Railroad Grossing. — A railroad company is clearly guilty of actionable negligence, when in the night time, without light or signal or warning, it suddenly and rapidly moves an engine across a public street, thereby causing personal injury to a traveler on the crossing.</p> <p>Appellate Court Practice. — Subsequent Appeal. —Res Judicata.— Same State of Facts. — -Where, on appeal, the appellate tribunal held that the appellee could not recover on the facts disclosed, such conclusion will be binding on any subsequent appeal of the same cause, where the state of facts remains the same; but where the facts are different, or are more strongly and clearly presented as to warrant a different conclusion, the former decision will not operate as res judicata.</p> <p>Instructions to Jury.- — Personal Injury. — Bailroad Grossing. — Duty to “Stop," “Look" and “Listen." — Where the court instructed the jury, in an action against a railroad because of personal injuries received at a crossing, that when one approaches a railroad for the purpose of crossing it, it is his duty to “look” and “listen,” the instruction was not bad for failure to also state that such person should “stop,” etc. In view of the facts and circumstances, it was not necessary that the instruction go so far.</p> <p>Jury. — Misconduct of.— Taking Becord to Jury Boom.— Affidavit.— Where, on a subsequent trial of a cause, it is alleged that the verdict in the former trial, together with the papers in the case, was taken by the jury to their room, but the jury make affidavit that the verdict, if taken to' their room, was not seen or commented on by any of them, and that they did not know of its existence there, such charge, in the light of the showing, can not work a reversal.</p>

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

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

<p>Judicial Notice. — Geography and Topography of a Country. — Courts take judicial notice of the topography and geography of the country.</p> <p>Pleading.— Complaint.— Sufficiency of.— Bridge. — Duty to Bepair.— Water-course. — Highway.—In an action against a board of county commissioners for damages for personal injuries received at the approach of a bridge, for the alleged reason that the bridge was never properly constructed or kept in repair, the allegation in the complaint, that the bridge was “on the line and a part of a public highway,” ovfer Little Blue river, in Shelby county, Indiana, was sufficient to show that the bridge was constructed over a natural watercourse, on the line of a public highway, and within Shelby county, and the complaint shows such a state of facts, that it follows as a matter of law that the bridge was one which the board of commissioners was bound to keep in repair.</p> <p>Amendment op Pleading.— When Discretionary with Court. — Abuse of Discretion. — Where a cause was set for trial, the issues having been closed ten days before the day of trial, and on the day previous to the day set for trial the defendant asked permission to file a second paragraph of answer, which was refused, this court can not say that the discretion reposed in the trial court in regard thereto was abused.</p> <p>Judicial Discretion. — Abuse of. — Befusal to Permit Jury to View Premises. — Beversal.—The appellate tribunal will rarely reverse a cause for abuse of discretion in refusing to permit a jury to visit and view the premises where an accident happened.</p> <p>Instkuctions to Juey. — Bridges.—Approach.—Failure to Keep in Safe Condition. — Care by Traveler. — Injury.—Where an instruction was, in substance, that if you find that the approach to the bridge was not maintained by the defendant in a reasonably safe condition for travel, and that the plaintiff at the time of going upon the same, knew that it was not so maintained, she was not bound to forego travel upon the same, but in traveling thereon she was required to use care and prudence in proportion to the dangers, by reason of the failure to properly maintain the approach, known to her.</p> <p>Husband and Wipe. — Personal Injury of Wife. — Duty of Husband to Care for and Furnish Medical Treatment. — When Such Damages Accrue to the Wife, When to Husband. — It is the duty of the husband to support and maintain his wife, and to furnish medical treatment and care in the case of injury or ailment; and presumptively all such damages accrue to him, but this is a naked presumption, and when it is averred and proved that the wife has expended money or incurred a liability on her own account, she is entitled to recover therefor as if she were a feme sole, in case she is entitled to damages for the injury.</p> <p>Opinion on petition for rehearing by Lotz, J.</p>

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

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

<p>Warranty. — Nature of. — Breach of. — Now Pleaded. — A. warranty in a sale of goods is a collateral undertaking forming part of the contract of sale, and in pleading as a warranty a statement on the part of the seller, it should be made to appear as an undertaking which entered into and became part of the contract of sale.</p> <p>Same. — Essential Elements. — Where representations are relied upon as • a warranty, it must be shown that the vendor intended that they should be relied upon, or that they were made for the purpose of inducing the vendee'to purchase, and that he was induced thereby to purchase, or that they were made as part consideration of the contract.</p>

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

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

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

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

<p>Harmless Error. — Sufficient Paragraph of Answer.- — Sustaining Motion to Strike Out. — When Harmless.- — Where the facts pleaded in a paragraph of answer are sufficient to constitute a defense, and such paragraph is stricken out on motion, the ruling of the court will be but harmless error, where, under any view of the case, the same facts are provable under the general denial, which is in.</p> <p>Practice. — Agreement to Withhold Decision Until Arrival of Deposition. ■ — Announcing Decision Previous to Arrival. — Where a cause was called for trial, and plaintiff’s counsel asked that the evidence should not be considered as closed until the deposition of plaintiff, which was supposed to have been taken in his interest in a foreign State, should arrive, which was agreed to by the parties, and the trial proceeded with, it can not be matter of complaint by defendant that the court announced its finding for plaintiff before the arrival of the deposition.</p>

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

<p>Appellate Court Practice. — When Question Must beBuled on in Trial Court, and Excepted to, Before Available on Appeal. — Waiver.■—Where the amount demanded in a complaint was ¡¡>144.82, and the case, by consent of the parties, was referred to a referee, and the referee made a finding and reported to the court that plaintiff was entitled to judgment for §164.67, and the defendant failed to move to modify the finding in the trial court, the question as to the excess of the finding over the amount demanded can not be raised in the appel- - late tribunal; for in all actions where there is an appearance, it is absolutely necessary, in order to present a question to the appellate tribunal, that an exception be taken to the decision of the court— except (1) where the court has no jurisdiction of the subject-matter, and (2) where the complaint does not state facts sufficient to constitute a cause of action — otherwise objection to the decision will be treated as waived.</p> <p>New Trial. — Affidavit in Support of. — When Duty of Court to Entertain. Where the court entertains a motion for a new trial, it is its duty to also entertain an affidavit in support thereof if relevant and pertinent ; still where the, affidavit if it had been filed and considered would not have caused a different result, it will be but a mere irregularity that will not work a reversal.</p>

<p>Instbuctions to Juey. — Variance Between Complaint and Proof.— Gravamen of Action. — License.—Bitch.—Beversible Error. — A complaint for damages because of the obstruction of a tile ditch which the complaint alleged was constructed across defendants’ lands, and that a license so to do was granted the plaintiff upon a good and sufficient consideration, was in every respect supported by the evidence, except that the evidence disclosed the ditch to be an open one instead of a tile ditch. When the evidence was all in, and before the argument had commenced, plaintiff moved to amend the complaint by striking out the word “tile” wherever it appeared in the complaint in connection with the description of the drain, so that the complaint might conform to the proof. This motion the court overruled, and the plaintiff asked the court to give an instruction, in substance, that, as it is averred in the complaint, defendants licensed plaintiffs to construct a tile ditch or drain across the lands owned by them, you are instructed that plaintiffs, in order to show such license, need not show that the tile was in fact laid in the ditch, if the ditch was, in compliance with the license, dug ánd made ready for the tile; that the gravamen of the action is whether the license was given to construct the ditch and whether the ditch was so constructed, and not whether tiles were to be laid in the ditch or were in fact laid therein. This instruction the court refused to give, but gave a converse instruction.</p> <p>Held, that the refusal to give the instruction asked, and the giving of the converse instruction, amounted to reversible error.</p>

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

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

<p>Appeal. — Parties to. — Coparties Not Joining. — Notice, When Essential. —Dismissal of Appeal. — Where only a part of the parties affected by a judgment appealed from join in an appeal, the other coparties not joining, whose rights would be affected by the judgment of the appellate tribunal, must be given the proper notice of appeal, else the appeal will be dismissed, except where such appeal is taken and perfected in term time and such coparties not joining in appeal are made appellees in the assignment oí errors.</p>

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

<p>Instjeance. — Application.— Untruthfulness of. — Burden of Proof.— Where suit is brought on an insurance policy, and the defense is set up that the answers of the insured are untrue, the burden is on the defendant to show the untruthfulness of the statements.</p> <p>Same. — Contract of.— What Constitutes. — Construction. —Warranty.—Representations. — The application for, and policy of, insurance, when the former is made a part of the latter, must be construed together as one contract, and statements and answers will not be construed as warranties when the contents and language of the writings justify construing the same as representations. In such construction the courts will be liberal in order to give the policy effect rather than to make it void. And where the terms of such a contract render it capable of two constructions, it will be given the construction most favorable to the assured.</p> <p>Special Finding. — Incompleteness of. — Presumption.—Where a special finding of fact as to a material point is not full and complete, it will be presumed to be against the party on whom rests the burden of proof.</p>

<p>Recovery. — When Not Excessive. — Beversal of Judgment. — A judgment will not be reversed on the ground of excessive recovery, when there is evidence to support the finding.</p> <p>Evidence. — Opinion Testimony.■ — ■Value of Services. — Nursing Sick Person. — Every person who has arrived at the age of maturity must, in the course of nature, have had more or less experience in caring for the sick or seeing it done, and when one has seen such services as they are being rendered, he is competent to give the facts and then his opinion as to the value of such services, the weight of such evidence to be determined by the jury.</p> <p>Same. — Examination of Witness. — When Objection too Late after Question is Put and Answered. — When a witness is being examined, a party can not wait until a question has been answered by the witness, and then, after taking his chances for a favorable answer, object and move to strike out, if it be unfavorable; provided the party has not been prevented from making his objection at the proper time, and the question indicates the subject-matter and the question is responsive to it.</p> <p>Same. — Biding Out. — When Not Erroneous. — Where evidence is ruled out, the ruling can not be held erroneous merely because the objection upon which it was excluded was too general to have raised any question on behalf of the objector, had his objection been overruled.</p>

<p>Verdict. — General.—Motion for Judgment on Answers to Interrogatories Non Obstante Verdieto. — When Must Fail. — A general verdict is not controlled by answer to interrogatories, unless such answers are irreconcilable with the general verdict. Where, however, a fact is found, in answer'to an interrogatory, which precludes a recovery at all, the fact so found controls the general verdict. But when the facts found are only such as to preclude a recovery upon one branch of a case, and no facts are found which would preclude a recovery upon another branch, it will be presumed that the jury based their verdict upon the branch as to which no facts were found inconsistent with the general verdict.</p>

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

<p>Pleading. — Sufficiency of. — Construction of. — Street Improvement. — Appeal from Precept. — Complaint.—A contractor who had, upon contract with the city, improved a certain street, made affidavit and obtained a precept for the collection of a certain assessment for the improvement, and the party so affected appealed from the precept to the circuit court. In the circuit court, the transcript of the proceedings appealed from constituted the complaint, and should not be construed with rigid strictness against the contractor, and will stand, unless there.is some defect in it which affects the substantial rights of the party objecting to it.</p> <p>Streets and Alleys. — Assessments for Improvements. — Manner of Collecting. — Precept.—•Statute Construed. — The act of 1889 relating to the manner of collecting assessments for street improvements, does not affect such remedies as had attached to accrued liabilities previous to the taking effect of such act.</p>

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

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

<p>Chattel Mortgage. — Description of Property. — Sufficiency of. — Where the property named in a chattel mortgage was described as “one sorrel horse, twelve years old, called ‘Tom/ and one iron-gray horse, four years old, called ‘Hurk,’ ” the description is sufficient, by the aid of parol evidence, to identify the property, and is such as to put a third party upon his inquiry.</p> <p>Demand. — Action for Value of Mortgaged Property. — Conversion.—When Demand is Unnecessary. — In an action to recover the value of certain personal property upon which the plaintiff held a chattel mortgage, which was converted by defendants to their own use and placed beyond plaintiff’s reach, the allegations were sufficient to excuse a demand for the property, if any was necessary, which were as follows : That the defendants obtained possession of the property by virtue of a replevin suit against the owner thereof, based upon a junior mortgage; that while such suit was pending, and during the trial thereof, plaintiff notified defendants of its senior mortgage and exhibited it, and the note it was made to secure, to them and their attorneys; that after defendants had been awarded judgment for the possession of the property, they took the same, converted it to their own use, and sold it, and have put the property beyond the reach of plaintiff, and that plaintiff has been, and still is, unable to secure possession of the same.</p> <p>Replevin. — By Junior Mortgagee for Mortgaged Property. — Against Whom Maintainable. — Defense.—A junior mortgagee may, in any event, maintain replevin against the mortgagor and any person other than a senior mortgagee for any taking of the property which is in conflict with his rights as a junior mortgagee; and in such case the mortgagor can not defeat the replevin suit by the junior mortgagee by setting up property in a stranger, and then simply proving, in support thereof, that there is an older mortgage outstanding.</p> <p>Parties. — Defending in Name of Another. — Judgment.—Nffeet of Judgment on Such Party. — In an action of replevin against the mortgagor by a junior mortgagee for the possession of the mortgaged property, the judgment rendered therein is not binding on the senior mortgagee, who was not a party to the proceeding, there being no issue as to the senior mortgage, and no arrangement between the mortgagor in the suit and the senior mortgagee being shown, in pursuance of which the senior mortgagee conducted the defense.</p> <p>Opinion on petition for rehearing by Reinhard, J.</p>

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

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

<p>Employee and Employe.- — Unsafe Appliances. — Action by Employe for Damages. — Essential Elements. — Instructions to Jury. — Recovery.—In an action by an employe against his. employer for damages resulting from unsafe appliances, while in the line of his duty, the essential elements to be established, in addition to the injury, before there can be a recovery, are (1) that the appliance was defective; (2) that the employer had notice thereof, or, by reasonable diligence, ought to have known of it; (3) that the employe did not know of the defect, and did not have equal means of knowing with the employer; and if, in instructing the jury, any of these essential elements is omitted, such omission will constitute reversible error.</p> <p>Same. — Defective Appliance. — Knowledge of. — Contributory Negligence. — - Complaint. — Necessary Allegation. — In such case, the averment and proof of freedom from contributory negligence- will not supply the lack of an allegation and proof that the employe did not know of the defect.</p>

<p>Damages.' — Abatable Gause. — Becovery.—Bight of Action Subsequent to Becovery, for Failure to Abate. — Bitch.—Unlawful Flowage. — Where plaintiff obtained a judgment for damages, and, also, an injunction abating the unlawful and unnatural flow of water onto his lands from the lands of defendant, caused by the construction of ditches, the cause of the injury being abatable, the judgment for damages covered only such as the plaintiff had suffered to the time of the rendition of the judgment, and for any further trespass or injury to plaintiff, by failure of defendant to abate the nuisance, the defendant is liable in damages, and also liable for contempt of court.</p>

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

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

<p>Change oe Venue. — Costs of. — Failure to Pay. — Bight to Change Defeated.- — Where, on application for a change of venue from the county, the court grants the change, conditioned that the costs of the change shall be paid in a time fixed by the court, the failure to pay the costs within such time destroys the right to a change, and the fact that the clerk has money in his hands to which the party asking for the change is entitled, can not, of itself, be construed as a payment of such costs.</p> <p>Same. — Failure to Perfect in Time Fixed. — Demanding the Cause.- — Jurisdiction. — Where a change of venue has been granted, and the change is not perfected in the prescribed time, the court to which the case was taken may remand the case, provided the court to which the change was taken obtains jurisdiction, and if no jurisdiction is acquired, the remanding order is simply nugatory and harmless.</p> <p>Railroad/ — Negligence.—Presumption.-—Accident to Train. — Proximate Cause. — Liability.—Where an accident occurs to a train by reason of a defect in the road, the law will presume that the railroad company was negligent in the construction or maintenance of the road, but this presumption may be rebutted by evidence; and where an accident occurs and the negligence of the company is not the natural and proximate cause thereof, there is no liability on such company for any damage resulting therefrom.</p> <p>Same. — Dangerous Freight, Oil Tanks. — Bequisite Care. — It is the duty of a railroad company, so far as the rights of an adjacent property-owner is concerned, to exercise care and skill commensurate with the undertaking; and great care should be taken in the transportation through towns and cities, in the night time, of heavy freight trains consisting largely of tanks of oil, which, in the event of an accident, would be dangerous to adjoining property and to life.</p> <p>Opinion on petition for rehearing by Davis, J.</p>

<p>Foeeeituee. — Not Favored in Law. — When Forfeiture will he Decreed.— Lease. — Bent.—Failure to Pay. — While forfeitures are not favored in law, yet when, by a reasonable construction,' it appears that the contracting parties agreed that a forfeiture should take place upon the failure of one of the parties to the contract to comply with a material part thereof, courts will decree a forfeiture. So, where the covenants of a lease are, that the lessee shall pay a certain rental at stipulated intervals, and in case of failure to pay shall forfeit all rights to a continuance of the lease, it can not be said that such failure to'pay is not a material covenant upon which to base a forfeiture.</p> <p>Demand. — Lease.—Nonpayment of Bent. — In an action to have a lease declared forfeited for failure to pay rent as stipulated, the allegation that “the plaintiff, just before sunset, duly demanded payment of §120, the amount due on the premises,” was a sufficient allegation to show a demand.</p> <p>Lease. — Nonpayment of Bent. — Forfeiture.—Notice.—Where a lease provides that notice shall not be necessary, on a failure to pay rent, to terminate tlie lease, demand for the rent is unnecessary, and a failure to pay the rent as specified will work a forfeiture without notice.</p> <p>Set-oee. — Statute Construed, Section 352, R. S-1881.- — Compensated Demands. — Payment.-—The provisions of section 352, B. S. 1881, are simply to preserve the rights of parties to have one claim or demand set off against another and to prevent the assignment of one to avoid it being set off by another, and such cross-demands are compensated in so far as they equal each other, but not in such a sense as to amount to payment, in the absence of an agreement to that effect.</p> <p>Practice. — Answer.—Motion to Strike Out. — Nature and Effect of.— Harmless Error. — Reversible Error. — -A motion to strike out a paragraph of answer admits the truth of the facts alleged, for the purpose of the motion, the same as a demurrer, and where the facts, taken as true, make a good answer, it is error to strike it out, unless the same facts are admissible under another paragraph of answer.</p>

<p>Evidence. — Action for Attorney's Fees. — Becords of Case Admissible.— In an action for attorney’s fees for services rendered in a certain cause of action, where the employment of the plaintiff is denied, the records of such case may be introduced in evidence as tending to show the employment of plaintiff and the character of the services rendered, and as forming a proper basis on which to determine the value of the services, and as tending to corroborate the plaintiff’s testimony that he was employed and rendered the services..</p> <p>Same. — Evidence Foreign to Issue. — When Party Can Not Complain.— Where a party elicits evidence which is foreign to the issues, he can not be heard to complain, the action being his own.</p> <p>Pleading. — Matter of Defense. — What Must Be Specially Pleaded. — Issues. — Practice.—In an action for attorney’s fees, where the only defenses interposed were general denial and payment, neither settlement, accord and satisfaction, nor account stated can be established; for they are affirmative defenses admitting the cause of action, but endeavoring to avoid it by interposing affirmative new matter, and to he available, they must be specially pleaded.</p>

<p>Landlobd and Tenant. — Bepairs and, Improvements. — -In the absence of any contract on the subject, the landlord is under no obligation to pay for repairs or improvements made by the tenant upon the demised premises.</p>

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

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

<p>Pleading. — Complaint.—Sufficiency of. — Demurrer for Want of Pacts. —Where a complaint states a cause of action entitling the plaintiff to some relief, although not all demanded, it is error to sustain a demurrer thereto for want of sufficient facts.</p> <p>TJnsoundnbss of Mind. — Petition for Guardian. — Parties.—Collateral Attack. — Any person may file a petition to have a person declared of unsound mind and to have a guardian of his person and property appointed. Such petitioner is a party to such proceeding only for the purpose of instituting the proceeding, and such a petitioner need not be made a party, in a subsequent proceeding attacking the former judgment of the court therein.</p> <p>Same. — Petition for Guardian. — Adversary Proceeding. — Process.—Production in Com't of Defendant. — Due Process of Law. — Judgment.—A proceeding to have a person declared of unsound mind and incapable of managing his own estate, and to have a guardian of his person and property appointed, is an adversary proceeding, and the party charged of such incapacity must be either produced in open court during the pendency of the proceeding, or, in default thereof, must be duly served with process, otherwise the court can not acquire jurisdiction of the person, and the judgment will be void as denying to the defendant due process of law.</p> <p>Pleading.— Complaint.— Anticipating Defense. — Demurrer.—Where a plaintiff, in his complaint, anticipates a defense, which, if pleaded by the defendant, would be a bar to the action, he must plead facts sufficient to avoid such defense, or the complaint will not withstand a demurrer for want of facts.</p>

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

<p>Insurance. — Application for. — False Information. — Application Written by Company’s Agent. — Attempt to Make Such Agent the Applicant’s Agent for the Purpose of the Application. — Where an application of insurance contains the provision: “I * * * also agree that said society shall not be bound by any statement made to, or knowledge possessed by, any agent or broker not written in this application, hereby appointing such person my agent to enter my answers to the following statements,” the applicant is not estopped, by such statement, to show that the person who wrote the same was, in fact, the agent of the company and not his agent, and that the language ascribed to him was, in fact, not his, but that of the agent.</p> <p>Same. — Agency.—Question of Law. — Admission.—In such case, if the facts constituting the agency are in dispute, so as to leave the question in doubt as to whose agent he is, then an admission in the application, such as above set out, may assist in solving the doubt, and bind the party making it; but when the facts are established, the law determines whether or not there is an agency, and no admission can change it.</p> <p>Same. — Application.— False Information. —Estoppel.— Presumption.— Where a person desiring insurance gives correct information, but the agent of the insurance company, either by fraud or mistake, in filling out the application, gives the company false information, the company is estopped to deny that it was in possession of the facts as they existed, the knowledge of the agent being the knowledge of the company. And it is not the duty of the applicant to see that the agent makes a correct report of his statements. He has a right to assume that the agent will do so.</p> <p>Same. — Judicial Knowledge. — Agent.—Limitations of Authority. — Knowledge of. — Courts judicially know that applications for insurance are usually made with agents in their Capacity as representatives of the company, and if there are any restrictions on their powers as such, it is the duty of the company to bring the same to the knowledge of the applicant.</p> <p>Same. — Application.—False Information. — When Neither Party can Profit by. — Where, by mistake or fraud, the agent of an insurance company, in filling out an application, gives the company false information, the company can not profit by the mistake, neither can the applicant, by his negligence or inadvertence, be placed in a better position than he intended.</p>

<p>Jurisdiction. — Trespass on Beal Estate. — Local Action.- — Defendants Besiding in Another County. — Process, how Served on. — An action for damages, by reason of trespass on real estate, must be brought in the county where such land is situate ;• and in such case, if the defendants, or any of them, reside in another county, process may issue to such county and be served against them therein, as provided by statute.</p> <p>Municipal Corporations.' — Streets and Alleys.- — Seioer.—Authority to Construct. — Trespass on Abutting Land. — Damages.—Where a city confers power on persons to construct a sewer along one of its streets, such power does not authorize them to go beyond the limits of the street and enter upon abutting premises, nor to put earth upon such premises to the inconvenience or injury thereof; and for any such injury the contractors are liable in damages.</p>

<p>Municipal Coepobation. — Grant of Permission to Construct Bailroad Along a Street. — Extent of Such Grant. — Damages to Abutting Property Owner, when Becoverable. — A municipal corporation has the right to grant permission to a railroad company to build its tracks over and upon its streets, but such grant does not transfer any proprietary rights of the persons owning lands abutting on such streets, such permission being simply a grant of the right to share with the general public the use of the easement, and to that extent the power of the city is unlimited; but such a grant does not impair or destroy the right of an abutting land-owner, owning the fee in the street, to recover damages for the additional burden imposed upon his land. If, however, the railroad is not constructed upon that part of the street in which he owns the fee, before he can recover damages he must allege and prove injuries to his property different from those sustained by the general public. A proceeding based upon sections 905-909, R. S. 1881, can only be available when there has been an actual taking of property.</p>

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

<p>Promissory Note. — Mutual Mistake in Inserting Name of Payee. — Action on. — Necessary Parties. — In an action on a promissory note, where it is alleged that, by mutual mistake of the maker and payee, the wrong name was inserted in the note for the payee, and where it does not appear that the payee named in the note ever had any interest therein, it is unnecessary to make such named payee a party to the proceeding.</p> <p>Bill or Exceptions. — When in the Record. — Presentation.—Piling.— Where a motion for a new trial was overruled August 15, 1891, and appellant was allowed sixty days in which to file bill of exceptions, and, on October 13,1891, the bill of exceptions was presented to, and signed by, the judge, and, on May 26, 1892, the bill was filed, the bill was properly in the record, the presentation to the judge being the controlling question.</p> <p>Same. — Bill Purporting to Contain All the Evidence. — Omission of Part. —Vital Defect. — Where a bill of exceptions purporting to contain all the evidence shows that a certain note marked exhibit A was read in evidence, but there is an omission to copy such note in the bill, and it is not clearly shown that the note mentioned in the bill as having been read in evidence is the note sued on, a copy of which is filed with the complaint, such omission will be treated as a vital defect.</p>

<p>Justice op the Peace. — Misdemeanors.—Jurisdiction.— Court of Inquiry. — Binding Over to Circuit Court. — Jeopardy.—Justices of the peace have concurrent jurisdiction with circuit and criminal courts, of misdemeanors wherein a fine of not more than twenty-five dollars is adequate for the offense committed; but where a fine of that amount is not adequate, they have no jurisdiction to convict. And when it is ascertained from the evidence that the offense, of the commission of which the defendant is found guilty, is such that an adequate fine can not be assessed in such court, it is the duty of the justice to hold the accused to the proper court, and, in such proceeding, the defendant has not been put in jeopardy in the meaning of the constitution; such proceeding being simply one of inquiry to determine whether the accused shall be bound over to a court of competent jurisdiction.</p>

<p>Damages. — Public Officer. — When Liable in Damages for Official Misconduct. — Gravel Road. — Letting Contract. — Dejecting Bid. — Board of Commissioners. — To entitle an individual to recover damages against a derelict officer, it must be shown that the failure of such officer was in the performance of some duty which the officer owed such person specially. So, where a bidder sues the board of commissioners and other officers concerned in the letting of a contract for the construction of a free gravel road, for damages, for failure to award such contract to him, he being the lowest and best bidder, alleging fraud, collusion, etc., the plaintiff can not recover in such action, there being no special duty owing the plaintiff by such officers distinct from that which they owe the general public.</p> <p>txRAVEL Road. — Contract for .■ — Dejection of Lowest and Best Bid. — Rem. edy.- — Qucere, what is the proper remedy where the officers charged with letting a contract for the construction of a gravel road have rejected the lowest and best bidder, and awarded the contract to a higher bidder?</p>

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

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

<p>Assault and Battery. — Nominal Damages. — Presumption.—When a peaceable citizen, in a public place where he has a right to be, in the presence of a number of other citizens, is subjected to the humiliation of an unprovoked assault and battery by a man of superior physical strength and weight, there is no presumption that the assaulted party is entitled to recover nothing beyond mere nominal damages.</p> <p>Same. — Recovery.—Pecuniary Loss. — Physical and Mental Suffering.-— In such case, recovery does not depend upon pecuniary loss, but the appellant may recover full compensation for physical suffering and mental agony endured as a result of the assault and battery.</p>

<p>Promissory Note. — Negotiability.—Extension of Time. — Waiver of.— . Meaning of “Any Extension.” — Release.—Where a promissory note contained the provision that “The drawers and indorsers severally waive *' * * all defenses on the ground of any extension of the time of its payment that may be given by the holder or holders to them or either of them,” the stipulation is binding on the parties thereto, and enforceable, but destroys the negotiability of the note as an inland bill of exchange. The expression “any extension” is in the singular, and is only binding as to one extension of time.</p>

<p>Assignment op Errors. — Uncertainty.—Fatally Defective. — Assignments of error which are so uncertain that their application can not be determined with reasonable certainty are fatally defective.</p>

<p>Appellate Court Practice. — Transcript of Record. — Presumption.— Complaint. — An appellate tribunal can not, and will not, indulge in any presumptions or inferences that what purports to be the complaint, attached to the transcript, was duly filed and acted upon in the court below, in the entire absence of any formula or preface at the beginning of the transcript.</p> <p>Same. — Evidence not all in Record. — Effect on Action of Court. — Where the evidence is not all in the record, the court will not consider any question with reference to the sufficiency of the evidence or errors in relation to the admission or exclusion of evidence, nor will the court consider instructions given or refused, where an examination of the evidence is required.</p> <p>Assignment of Erkoes. — When not in Conformity with the Record.— Unavailable. — Where an assignment of error is that “The Warrick Circuit Court erred in overruling the demurrer to the complaint,” and the record does not show any such ruling by such court, but the ruling is shown to have been made by another court, there is no question presented by such assignment.-</p> <p>Opinion on petition for rehearing by Davis, J.</p>

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

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

<p>Partnership. — Dissolution.—Final Settlement. — Indemnifying Bonds.— A. and B. were partners, and in contemplation of a dissolution of the partnership and a final settlement, they entered into a written agreement showing the condition of the affairs of the firm, among the liabilities of the firm being a number of claims designated as “ disputed.” A. purchased B.’s interest in certain real estate, and applied a part of the purchase-money in payment of undisputed liabilities of the firm. Each executed to the other an indemnifying bond to secure the other against loss by reason of nonpayment, by either, of his portion of the partnership liabilities. Such bond can not be construed to include individual debts for which the firm was primarily liable to the creditor.</p>

<p>Employee and Employe.- — Liability of Employer for Medical and Surgical Attention Given an Injured Employe. — Principal and Agent.-— Authority of Agent. — The manager of a factory, for either an indi vidual or a corporation, has not the power to bind his principal for medical and surgical treatment given an employe who has been injured while in the discharge of his duties at the factory, in the absence of any facts showing an emergency, save the necessity for the immediate services of a physician or surgeon.</p>

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

<p>Pleading. — Counterclaim.—When Matter of Defense. — Contract.—Conversion. — In an action by a tenant against Ms landlord for a conversion of the part of the crop due the tenant, the action being one of tort, pure and simple, a counterclaim for the breach of the contract of lease by the tenant will not lie, as the conversion is wholly disconnected from the lease contract.</p>

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

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

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

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

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

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

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