Volume 8 — Indiana Appellate Court Reports

<p>Estoppel. — Street Improvement. — Lien.—Damages.—Wrongful Appropriation of Land. — In. an action to enforce a lien for street improvement, an appeal having been taken from the improvement proceedings, and a judgment rendered on appeal declaring such proceedings null and void, the defendants are estopped to deny the city’s right to the land appropriated for such street, and the resulting lien of the contractor, where, after such judgment annulling the improvement proceedings, the defendants accepted damages of the city for the appropriation of the land as above mentioned. And the rule is the same whether the land-owner accepts damages in proceedings under the writ of assessment or in a suit for damages.</p> <p>Stbeets and Alleys. — Improvement Proceedings. — Appeal from. — Effect of Appeal Judgment. — Practice.—Municipal Gorporation. — Where an appeal is taken from proceedings to improve a street, the city is not compelled to stop the work while the appeal is pending; and, in such case, if, on appeal, the city prevails, the work may be finished under the original proceedings, but if the property-owner is successful, and the court decides that there is some irregularity in the proceedings, the city may correct the same or begin anew, according to the determination of the court on appeal. If, however, the court, on appeal, adjudges the entire proceedings void, and no appeal is taken from such judgment, and the city does not proceed anew under the statute, it amounts to an abandonment of the appropriation of the land, and the title to the property reverts to the owner.</p>

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

<p>Partnership. — Surviving Partners. — Continuing Partnership Business. — Trustee and Cestui Que Trust. — Insurance.—-Receiver.-—Assets.— When a member of a partnership dies, the surviving partners hold the property and money of the partnership in trust for the partnership creditors; and where the surviving partners continue the business of the partnership in another firm-name, and insure the property in such name, and pay the premiums thereon, any money realized on the insurance policy, as well as all other funds of the partnership, belong to the cestui que trust, and primarily to the creditors of the firm; and, in such case, a receiver having been appointed, he is entitled to the possession and control of all the firm assets, including insurance money obtained by the surviving partners on a policy procured by them, and including profits realized in the continuance of the partnership business.</p>

<p>Pleading. — Answer, Inconsistent and Sepugnant. — Demurrer.—Where a paragraph of answer to a complaint on a promissory note, was that the note was given in part payment of a wheat-harvesting machine which was sold upon a written warranty, alleging a breach of such warranty, and that the plaintiff did not become the owner or holder of the note in suit until after maturity, “or if it did become such owner, it was only for the purpose of collecting the same * * or with the agreement and understanding * * that * * [said assignor] would keep * * the plaintiff whole and harmless,”— the answer is so inconsistent and repugnant that it can not withstand a demurrer.</p>

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

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

<p>Intekeogatobies to Juey. — Refusal to Submit. — When Not Available Error. — "Where answers to interrogatories refused, taken in connection with the answers made to interrogatories submitted to the jury, could not have controlled the general verdict, there was no available error in refusing them.</p> <p>Same. — When General Verdict Controlled By. — It is only when the answers to interrogatories are absolutely irreconcilable with the general verdict that the .general verdict will be controlled by them.</p> <p>Insteuctions to Juey. — Those Given not in Record. — No Question as to Those Refused. — Presumption.—"Where instructions given are not in the record, no available question is presented as to those asked and refused, as it will be presumed that those given covered all proper points included in those refused.</p> <p>Contributory Negligence. — Bailroad Crossing. — Exception to Buie Bequiring Traveler to Stop and Listen. — A person approaching a railroad crossing is required to look and listen, because it is the part of a prudent man to do so, for the reason that a due regard for his own safety requires it. If, however, the facts and circumstances under which he approaches it are such as to mislead him, and such as would naturally create in his mind a sense of security and belief that there is no danger, to such an extent that a man of prudence would ordinarily act upon it, then the reason and rule for the precaution fails, as where one railroad train follows another, at a high rate of speed, with but twelve seconds of time between them, the view of the track being materially obstructed.</p> <p>Same.' — When a Question of Law. — Question of Fact. — Where the facts are undisputed, and but one legitimate inference can be fairly drawn from them, the court may take the question of negligence from the jury; but if the undisputed facts are of such a character that different men might reasonably and fairly base upon them different conclusions, then the determination of the question is for the jury.</p>

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

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

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

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

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

<p>Verdict. — Action in Tort.- — -When Verdict must he General. — When Damages can not he Apportioned. — Joint or Several Tort-Feasors. — -Gravel Road. — In an action against a gravel road company and several other defendants, for personal injuries sustained by reason of plaintiff’s horse becoming frightened on the road and precipitating plaintiff and his horse into an open ditch close to the beaten track of the highway, charging defendants with having negligently left said ditch open and unguarded for an unreasonable length of time, and where the duties of the defendants as to the care to be exercised in relation to the ditch are several and not joint, but such neglect results in but a single injury, the verdict of the jury must be general against all of the defendants found guilty, and the verdict can not apportion the damages among the defendants found guilty.</p> <p>'Same.— When Amounts to Acquittal of Part of Defendants. — In such case, where the verdict of the jury is against but two of the defendants, it is equivalent to a finding in favor of the other defendants.</p> <p>■Judgment. — Arrest of.— When Motion for Will Lie. — Verdict Against Part Only of Defendants. — Motion to Modify.— Venire de Novo.— Where a verdict does not find against all the defendants in the action, and the court is proceeding to render judgment against all, the defendants against whom there is no finding may move in arrest of judgment as to them, there being an intrinsic cause appearing on the face of the record which shows that some of the defendants were ■entitled to such relief because there was no verdict against them. Other, and perhaps more appropriate, remedies would be by motion for judgment in their favor, motion to modify, or for venire de novo.</p>

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

<p>Pleading. — Paragraph of Complaint. — Repeated in Same Form. — Demurrer. — Where the facts alleged in a paragraph of complaint are provable under another paragraph, requiring neither more nor less evidence to authorize a recovery, it is not error to sustain a demurrer to such paragraph.</p> <p>New Tbial.— Causes for. — Cause Improperly Assigned Raises no Question on Appeal. — Bulings on motions to strike out pleadings and on demurrers are not proper causes for a new trial, and raise no question when assigned as such.</p> <p>Vebdict. — Instructing Jury to Find for Defendant. — When Error. — Recovery. — Sufficiency of Evidence. — Practice.—When there is any evidence, although conflicting, tending to support and make out the plaintiff's case, and sufficient to sustain a verdict, the court should not instruct the jury to return a verdict for the defendant, but the question of recovery should be left to the jury.</p>

<p>Mechanic’s Lien. — Notice.—Sufficiency of Description. — Materialman. —A notice of intention to hold a materialman’s lien, which described the property as “lot 6, 7 or 8 in Pray and Hunt’s addition to the city of Indianapolis, Indiana, on the west side of Quince street, and about three-fourths of a square south of Prospect street,” etc., is a sufficient description, being sufficiently certain “to enable a party familiar with the locality to identify the premises intended to be described, with reasonable certainty.”</p> <p>Same. — Complaint, Sufficiency of. — Notice.—Variance.—Description.— In such case, where the complaint based upon the notice avers that lot 6 was the one on which the building was erected, the complaint mates a prima facie case, and the question as to whether the description in the complaint is at variance with that in the notice should be submitted for trial.</p>

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

<p>Assignment oe Eeeoes. — Joint Assignment. — Admitting Sufficiency of One Ground of Error. — Effect.—Where an appellant assigns as error that the answers of appellee do not state facts sufficient to constitute a defense to appellant’s complaint, and, also, in another assignment, avers that the overruling of appellant’s demurrer to the second, third, and fifth paragraphs of answer, and then concedes the sufficiency of the second paragraph of answer, no question is presented by such assignments.</p> <p>Pleading. — Answer, Sufficiency of. — Demurrer.—Warranty, Breach of. — • Promissory Note. — In an action on a promissory note given as evidence of the purchase price of a reaping machine, an answer setting up a warranty that the machine was made of good material and would do good work when properly managed, and alleging a breach thereof, is sufficient on demurrer, although the allegations are not full and specific.</p> <p>Instructions to Jury. — Erroneous Instruction. — Warranty.—Breach of. —Machine.—Where a machine is warranted to do good work when properly managed, an instruction to the jury that if, on fair trial, the machine could not be made to “work profitably and successfully,” it did not comply with the warranty, and the buyer might refuse to pay for it, is erroneous.</p>

<p>Decedents’ Estates. — Final Settlement. — What Does not Amount to.— Administrator De Bonis Fon. — Where an administrator filed what purports to be his final report, to which exceptions were filed by claimants, but the exceptions are subsequently withdrawn, with right to enforce and collect their claims in the future, and the order -concludes as follows: “And the estate is continued as to matters embraced in the exceptions only for further administration as the court may authorize and direct, and said * * [A.] now tenders his resignation as such administrator, which is accepted, and said administrator finally discharged,” the provisions of the order continuing the estate for certain purposes, and accepting the resignation of the administrator, are wholly inconsistent with the idea of final settlement, and an administrator de bonis non may be appointed under the provisions of section 2240, E. S. 1881.</p>

<p>Raibboad. — Contributory Negligence. — Special Verdict. — When Plaintiff is Free from, Negligence. — Bailroad Crossing. — Personal Injury. — A. and B., as shown by special verdict, approached a railroad crossing with a wagon and team of horses) under the following circumstances and manner: A. driving and B. sitting in seat with A. On both sides of the street forming the crossing were buildings, which obstructed the view of persons approaching the railroad and materially interfered with their hearing approaching trains; also, box cars projecting into the street from each side, on a switch eight feet from main track, between main track and A. and B., obstructed the view of approaching trains. A. and B., who had made the crossing but a short time before, from the east, were returning. When about fifty feet from the tracks, they stopped their team and looked and listened for approaching trains, and could see and hear none. Then they started to make the crossing, driving in a walk, one listening and looking south for approaching trains and the other listening and looking north for the same. In such manner they approached the crossing, neither seeing nor hearing any, nor any signal of an approaching train, and could not have seen or heard the approach of the train, the company failing to give the statutory signals. While the horses were upon the main track, a train coming from the south and running at the rate of thirty miles an hour, ran against and upon the team and the wagon, injuring B., etc.</p> <p>Held, that the facts found by the special verdict are sufficient to warrant the court in inferring that B. exercised care commensurate with the danger encountered, and was not guilty of contributory negligence.</p> <p>Same. — Railroad Crossing. — Care Required of Traveler in Crossing. — It is incumbent upon a traveler on a highway, riding in a wagon and about to cross a railroad track, who can not see or hear an approacliine train on account of obstructions which are known to him, to use greater precaution to protect himself from injury than where the view is unobstructed, and the opportunity for using the senses of sight and hearing is unimpaired. Oare commensurate with the known danger is required.</p> <p>Same. — Presumptions.—Lawful Conduct. — Statutory Signals. — Railroad Employes. — Traveler.—While a traveler on a highway may presume that the employes of a railroad company will obey the law and give the required warning, so, also, those in charge of the train may assume that the traveler will take every precaution commensurate with the danger which he is about to encounter.</p> <p>Same. — Presumption of Contributory Negligence. — Recovery.—Where a traveler is injured at a railroad crossing, the law raises the presumption that the fault was his own, and he must rebut this presumption before he can recover.</p> <p>Special Verdict. — Province of Jury, of Court. — Conclusion of Law.— Where a special verdict is requested, it is the province of the jury to find only the ultimate facts established by the evidence, leaving the conclusions of law thereon to be stated by the court.</p> <p>Judicial Notice. — Judges.—Terms of Office. — The Appellate Court judicially knows who the judges of the courts of general jurisdiction of the State are, and when their terms of office expire.</p> <p>Bill of Exceptions. — Who May Sign. — Expiration of Judge’s Term of Office. — A person who was judge and presided at the trial of a cause, has no power to sign a bill of exceptions and make the same a part of the record in such cause, after he has ceased to be judge. Such function should be performed by his successor.</p> <p>Waiver. — Motion for Judgment. — Motion for New Trial Pending Above. Motion. — Bight to Exception not Waived. — Where a motion of plaintiff for judgment is pending, the defendant does not waive the right to call in question the action of the court in rendering judgment for plaintiff, by filing a motion for a new trial while the motion for judgment was pending.</p>

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

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

<p>Pleading.— Complaint, Sufficiency of. — Bailroad.—Action for Constructing Fence Along Bight of Way. — Notice.—Exhibit.—When an action is brought against a railroad company for labor performed and material furnished in constructing a fence along the company’s right of way, by the adjacent land-owner, a copy of the written notice to the company need not be set out in the complaint, it not being the foundation of the action.</p>

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

<p>Appeal. — Appellate Gourt. — Jurisdiction.—Money Demand. — Originating Before a Mayor. — An appeal can not be taken from a judgment of a circuit court on a money demand not exceeding $50, exclusive of interest and costs, where the action originated before a mayor of a city.</p>

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

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

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

<p>Harmless Error. — Error Cured by Instruction. — Becovery.—Pleading, Bill of Particulars. — In an action on account, the party is restricted, on recovery, to the items designated in the bill of particulars, and where evidence of items not so included is given, which might have been embraced in the verdict, any error which otherwise might have occurred will be deemed cured by an instruction that “'the defendant would not be entitled to a verdict against the plaintiff on any item not included in such bill of particulars.”</p> <p>Evidence. — Subsidiary or Corroborative Pact. — When the principal fact is given in evidence without objection, it is not reversible error to give in evidence a subsidiary or corroborative fact.</p> <p>Instructions to Jury. — Items of Account. — Bestriding Consideration of Jury. — Exclusiveness.■—Erroneous.—Where many matters are given in evidence, among which are several hundred items of account, conversations, notes, and bank checks, without objection, an instruction which singles out three items of account and says, “these are all the matters proper for you to consider in arriving at a conclusion as to whether the defendant * * was indebted to plaintiff at the date of the execution of the note in suit, and as to whether the plaintiff is now, in fact, indebted to the defendant,” is erroneous, the phrase, “these are all the matters,” etc., conveying the idea of exclusiveness, i. e., the only matters.</p> <p>Opinion on petition for rehearing per curiam.</p>

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

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

<p>Insurance. — Policy on Merchandise. — Provision for Inventory Each-Tear. — When Failure to make not Matter of Defense. — Where an insurance policy issued upon a stock of merchandise provided, as a condition of insurance, that the insured would make an itemized inventory of merchandise * * each year, and correct records of all purchases and freight paid, and all sales made from the time one inventory is made until another shall have been taken, etc., and about two months after the issuance of the policy the property was destroyed by fire, no inventory having been made, the failure of the assured to make an inventory of the merchandise is no matter of defense by the company, the assured having yet ten months in which to make such inventory, under the terms of the policy.</p>

<p>Replevin. — Answer of Property in Third Person.■ — Sustaining Demurrer to. — Harmless Error. — General Denial. — In an action of replevin, it is not available error to sustain a demurrer to a paragraph of answer which only amounts to an answer of property in a third person, such fact being provable under the general denial.</p> <p>Same. — Possession Must be Shown. — Replevin can not be maintained unless the evidence shows the actual or constructive possession of the property in the defendant at the time when the suit was instituted.</p> <p>Same. — Evidence.—Judgment.—Execution.—Constable.—In such case, the suit being against a constable, among others, who had levied an execution on the property in question, the judgment and writ of execution are admissible in evidence as tending to show the right of possession.</p> <p>Judgment. — Voidable.—Collateral Attack. — In an action for work and labor performed, on a demand for §3, the jury returned a verdict as follows: “We, the jury, find for the plaintiff,” upon which the court rendered judgment for plaintiff for §3 and for costs of suit, taxed at §14.75.</p> <p>Held, that the judgment was merely voidable and not void, and could not be collaterally attacked.</p>

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

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

<p>Real Estate. — Contract of Sale. — •Construction of. — Title.—Abstract.— Earnest Money. — Forfeiture.—Where a contract for the sale of real estate provides, among other things, that “said conveyance is to be made by warranty deed, with all liens and taxes discharged, but subject to all existing leases,” and that “a full abstract is to be furnished by us, and said abstract and deed to be subject to reasonable examination and approval by,” * * * the vendee, acknowledging the payment of §500, as earnest money, which the vendee should forfeit, if he failed to carry out the terms of the agreement, provided the title proved good; under such contract the vendee was not bound to consummate the purchase on failure of the vendor to furnish an abstract showing title in him, and hence the earnest money was not forfeited on failure of the vendee to carry out the terms of the contract.</p> <p>Same. — Evidence.—Proof of Title by Adverse Possession. — Erroneous.-—• In such case, in an action to recover the earnest money, it was error to admit "proof of title by adverse possession.</p>

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

<p>Husband and Wife. — Biyht of Wife of Insane Man to Support Out of Sis Estate. — Bemedy.—Can not Bring Action Against. — Guardian and Ward. — The wife and minor children of an insane man, whose estate is in the hands of a guardian, should be provided, out of the estate, with such things as are reasonably necessary for their comfort and welfare, and if the guardian fail to make suitable provisions for them, application therefor may be made to the court under whose authority the guardian is acting, and the court should direct the guardian to make proper provisions; but the wife has no right of action, under such circumstances, against her husband’s estate, for such support.</p> <p>Same. — Bight of Wife and Children of Insane Man to Crops Baised by Them, on Sis Lands. — Seizure by Guardian. — Bemedy.—The wife and minor children of an insane man have a right to the use, for their support, of grain (wheat) raised by them on the lands of the husband and father, previous to the appointment of a guardian for him. The guardian has no right to the custody of such grain, and, on a seizure of the same by him, no right of action lies against him therefor, as guardian; but if any exists, it would be against him as an individual.</p>

<p>Pleading. — Gomplaint, Sufficiency of. — Theory of. — Damages.—Sale of Forged and Worthless Note. — Where a paragraph of complaint alleges, substantially, that the defendant sold and assigned to the plaintiff, by separate instrument, a certain promissory note, alleging date of note, date of assignment, amount of consideration, names of makers and payee; that the note so sold and assigned was a forgery; that by reason thereof the note is absolutely worthless, and that plaintiff has been damaged in the sum of ¡$800, etc., such pleading is sufficient on the theory of injury and damage by reason of the sale to plaintiff of the forged and worthless note.</p> <p>Special Binding. — -When Sufficient. — A special finding will be sufficient which contains the ultimate facts necessary to support the conclusions of law, disregarding evidentiary facts and conclusions of law stated therein.</p> <p>Same. — When Delivery Need Not Be Shown. — Presumption.—It is not necessary that a special finding, in an action for balance of purchase price of a personal chattel, should show a delivery. The sale being complete, it will be presumed that the vendee obtained possession.</p> <p>Vendor and Vendee. — Sale.—Assignment of Forged and Worthless Note. — Action for Value of Articles Sold. — Personalty.—Where a vendor sold a horse of the value of $500, and accepted therefor the vendee’s note for $50 and the assignment of another note which proved to be forged and worthless, the vendor had a right to disregard the assignment and sue for the value of the horse.</p> <p>Appellate Court Practice. — Discussion, What Amounts to. — Simply referring to a ground of objection stated in the trial court, and insisting that the objection there made should have been sustained, does not amount to a discussion, and presents no question for the consideration of the court.</p> <p>Same.- — When Ruling of Trial Court Will be Upheld. — If the ruling of the trial court can be supported upon any theory, whether the same was advanced at the time of the ruling or not, it must be upheld.</p> <p>Evidence. — Transcript of Record of an Action. — When Admissible in Subsequent Action. — Assignment.—Where a written assignment of a note shows that an action on the note.was pending at the time the assignment was executed, it is proper to admit in evidence, in a subsequent action thereon by the assignee, a certified transcript of the record of such action showing the result thereof.</p> <p>Same. — Proof of Contents of Destroyed Letters. — Discretion.—-The court may, in its discretion, reject evidence offered by plaintiff to prove the contents of letters destroyed by him after he had instituted his action; the court having the right to deduce, from such act, the inference of fraudulent design.</p> <p>Same. — Original Evidence, When May be Given. — Discretion.—It is within the discretion of the court to admit original evidence at any stage of the proceeding, and unless abuse of discretion is shown, there can be no cause for reversal.</p> <p>Opinion on petition for rehearing by Reinhard, J.</p>

<p>Guardian and Ward. — Contract.— When the Terms of May be Partly Enforced and Partly Disregarded. — Where a ward, within three years from the final settlement of his guardian, employed counsel to institute suit to set aside certain allowances and to recover certain sums from the guardian, and the guardian promised that if he would not bring suit against him, he would hold all of such sums for him, and manage them for him until he, the ward, should marry and settle down, and then he would pay him all of such sums with their accretions,-and would make him his, the guardian’s, heir, the contract to make the ward the guardian’s heir and to pay the sums of money are distinct and separate matters, and the promise to pay the sums of money may be separated from the promise to make the ward an heir, and be enforced against the guardian or his estate, without working any injustice, the forbearance-to sue being sufficient consideration for such promise.</p> <p>Same.- — Family Delation.' — Where the family relation exists, whether natural or assumed, there is, in the absence of an express agreement, or circumstances from which an agreement may be fairly inferred, no implied obligation to pay for board on the one hand or for work on the other.</p> <p>Same. — Evidence.—Statements of Guardian to Judge. — To a Former Attorney. — In an action by a ward against his guardian to set aside certain allowances made the guardian, the presiding judge was com-' petent to testify concerning the statements made by the guardian to procure the allowance of his claims; and, to the same effect, the statements of a person who had formerly, but was not at the time of the transaction testified to, been the attorney of the guardian, are admissible in evidence.</p> <p>Same. — Evidence.—Declarations of Guardian. — Amount of Estate. — In such case, declarations of the guardian as to the amount of the ward’s estate, or what he expected it to be, were admissible in evidence to show its amount, and also to show that heavy charges made just before the close of the. trust, were an afterthought, and were not contemplated nor intended by him when the ward was living with him as a member of his family.</p> <p>Evidence. — Admission Without Objection. — Appellate Court Practice.— The admission of evidence, without objection, can not be' complained of on appeal.</p>

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

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

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

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

<p>Husband and Wife.— Wife’s Separate Estate. — What Consists of. — Not only is the property actually acquired by gift, devise, or descent, preserved to the married woman, but also the proceeds of such property, whether the natural increase or the money procured by its sale or other property purchased with that money.</p> <p>Same.— Wife’s Separate Estate. — Use of by Husband with Wife’s Consent. — Trustee.—Gift.—Where the husband, with the wife’s consent, used money belonging to the wife, as part of her separate estate, in building a family residence, and there was nothing to indicate that the wife intended the money as a gift, it will be presumed that, as to such money, the husband is the trustee of the wife, and the husband or his estate is liable to the wife for such money.</p> <p>Same. — Personal Property. — Bights in, How Affected by Marriage.— Governed by Law of Husband’s Domicil. — The respective rights of the husband and wife in their personal property, acquired by them by their marriage, are determined by the law of the place of their marital domicil, and that, in the absence of any contrary intention, is the domicil of the husband at the time of the marriage.</p>

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

<p>Railroad. — Duty to Keep Premises Safe for All Persons Transacting Business With It. — Delivering and Deceiving Freight. — A railroad company, which is a common carrier of goods, and by its conduct invites or induces the public to use its premises, such as depots and other places set apart for receiving and discharging freight, is under special obligation to keep such premises safe for such use' for all persons coming upon the premises to transact business with such company, and among those who are entitled to this protection are such persons as come there for the purpose of delivering or receiving freight.</p> <p>Same. — Freight, Delivering and Deceiving. — Safe Premises, Duty of Company as to. — Notice.—Where a box car had been left on a side track, to be loaded with freight, and the consignee of the car was storing her goods therein at the precise point where she was directed to use it for that purpose, there was an implied agreement that the company would protect her from all approaching trains, and that she should not be molested or endangered in her person or property by any act of the company or its servants; and, in such case, the mere fact that a freight train had arrived and passed the box car, on the main track, was no notice to her that such train would enter the side track and endanger her safety by being pushed violently against the car in which she was lawfully engaged in her work of putting away her goods; nor was it her duty, under such circumstances, to leave the car and watch the movements of the freight train.</p> <p>Appellate Court Praotioe. — Searching the Decord. — Error Should he Specifically Designated. — The appellate tribunal will not search the record, for appellant, to find error which is asserted to have been committed. It is his duty to direct the court to the place or places. in the record where it is made to appear that the error was committed.</p>

<p>Judgment. — Railroad.—Drainage Lien. — Foreclosure of. — When Personal Judgment May he Rendered Against Railroad Company. — A personal judgment may be rendered against a railroad company, in an action to foreclose a drainage lien against the railroad of the company, a sale of the road under the lien being forbidden upon the ground of public policy, and the court having the power to furnish a remedy for an existing right.</p> <p>Dissenting opinion by Ross, J.</p>

<p>Recokd. — Plat, When May be Inserted After Bill is Signed by Judge.— Certiorari. — Presumption.—Appellate Court Practice. — It is not necessary to incorporate a plat into a bill of exceptions before the judge has signed the same, but it is sufficient „to refer to such evidence (the plat) by the words “here insert,” and afterwards insert the plat in its proper place in the record, and such action will not be ground for certiorari. In the absence of any showing or statement to the contrary, the court will presume that the transcript of the record, on appeal, duly authenticated by the certificate of the clerk, is correct.</p>

<p>Contract. — Made for Benefit of Third Person. — May Accept and Enforce, or Mescind. — A person in whose favor a contract has been made, may accept the same and enforce it; as, where A. assumes the payment of a debt owing by B. to C., C. may accept and enforce the contract against A., or C. may rescind it before it is accepted.</p> <p>Attorney’s Bees. — 'When Recoverable. — Contract.—Attorney and Client. —A contract to pay attorney’s fees is a contract of indemnity to secure the holder of the note against any liability which he may incur in the event he should be. compelled to employ an attorney to enforce the collection of the debt, and the plaintiff is not entitled to judgment for attorney’s fees, unless an attorney, of necessity, was employed to collect the debt.</p> <p>Practice. — Question, Sow Saved for Appellate Court. — Appeal.—Appellate Court Practice. — In order to present a question for decision to the Appellate Court, as to irregularities or abuse of discretion in the proceedings of the trial court, the foundation must be laid in an exception to the ruling of the trial court.</p>

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

<p>Demurrer.— Uncertainty as a Ground. — Uncertainty is not ground for demurrer, unless the pleading is so vague as not to state a cause of action or a defense.</p> <p>Pleading. — Complaint.—Sufficiency of, How Determined.— Theory of.— The theory and sufficiency of a complaint must be determined from the facts alleged, and not supply from the statements or admissions, of the parties.</p> <p>Judgment. — On Answers to Interrogatories.- — Employer and Employe.— Co-Employe. — Personal,Injury.—In an action for personal injuries received by the negligence of a co-employe, the defendant was entitled to judgment on answers to interrogatories, which established the fact that such co-employe was competent to do the work in which he was engaged at the time of the injuries.</p>

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

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

<p>Principal and Agent. — Agent Acting in Disregard of His Principal's Instruction. — Liability of Agent. — Damages.—Measure of. — -Where A. left money in the hands of B., as his agent, with instructions to loan the same to O., when O. and his wife should execute a mortgage upon a certain eighty acres of land unincumbered, and B., in disregard of such instructions, loaned the money to 0. with a preexisting mortgage on the land, he is liable to A. therefor, if loss resulted therefrom, in a sum not exceeding the amount of the preexisting mortgage.</p> <p>Same. — Evidence.—■When a Witness May Testify to a Conversation with Decedent.- — Decedent's Estate. — In an action by a decedent’s representative, against decedent’s agent, for damages resulting from a disregard, by the agent, of instructions concerning the loaning of money, the party with whom the agent contracted is competent to testify to a conversation which he had with the decedent before the agent turned over the money left with him by the decedent to loan and accepted a mortgage, wherein the decedent directed witness to tell said agent to turn over the money and accept a second mortgage.</p> <p>Demurrer. — Overruling to Insufficient Answer.- — When Beversible Error. ■ — When Harmless. — The overruling of a demurrer to a paragraph of answer not stating a defense to the action is reversible error, unless it affirmatively appears that the verdict rests wholly upon one or more paragraphs of the answer which are good.</p> <p>Assignment of Errors. — Assignment Must be Based Upon Proper Exception. — Misconduct of Counsel. — Where error is predicated upon the misconduct of counsel, no question is presented, on appeal, unless the trial court was given an opportunity to correct the error. No valid exception can be saved unless based upon a ruling of the court.</p>

<p>Municipal Corporation. — Open Drain or Sewer. — Failure to Keep in Repair. — Damages.—Complaint, Sufficiency of. — Where the gist of an action stated in the complaint is negligence of the municipality in failing to keep a drain or open ditch in repair, by carelessly and negligently allowing the same to fill up with sand and other obstructions, and by building across the drain approaches to adjoining alleys without placing drains under the approaches, by reason of which obstructions the water overflowed the drain, and flowed into plaintiff’s cellar, keeping it damp and unhealthful, injuring the foundation of the house, and destroying large quantities of personal property mentioned, the complaint states a cause of action.</p> <p>Same. — Special Verdict. — Sufficiency of. — In such case, where the facts found by the special verdict were, substantially, those alleged in the complaint, and, in addition, that the ditch was so defectively constructed as not to be adequate to carry off the water, the special verdict is sufficient to support the theory of the complaint, and plaintiff is entitled to recover.</p>

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

<p>Appeal.— Trial, What Amounts to. — Mayor.-—Misdemeanor.— Plea of not Guilty. — Finding of Guilty by Agreement. — Where a person was arrested upon an affidavit filed before a mayor, and, upon arraignment, pleaded not guilty, but consented, by his attorney, that‘the court, without the hearing of testimony, might find the defendant guilty as charged, and the court, in accordance with the agreement, found the defendant guilty, the defendant is entitled to an appeal, there having been a trial in legal contemplation, whether the court actually heard any evidence or not.</p>

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

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

<p>Harmless Error.— Overruling Demurrer to Paragraph of Complaint.— •Any error in overruling a demurrer to a paragraph of complaint will be deemed harmless, where it clearly appears that the judgment is founded upon another paragraph of the complaint.</p> <p>Pleading. — Complaint, Sufficiency of.— To JRecover Money Obtained by Duress.- — -Threatened Prosecution for Statements as Witness. — Privileged Communication. — In an action to recover .money obtained through duress and without consideration, the complaint was sufficient which alleged, in substance, that plaintiff, having been duly subpoenaed, testified as a witness in the trial of a cause to which defendant was a party, and, in response to questions asked him, testified that the character of defendant’s son, a witness, was bad for truth and veracity, and that plaintiff testified on cross-examination that he had heard one A. and wife say that said son had stolen a sheep, all of which answers were made in good faith, and without malice, believing them to be true; that the defendant, the next day, threatened to prosecute plaintiff for such testimony, unless plaintiff paid him a certain sum of money; that plaintiff was a person of weak mind, of little education and experience in business affairs, ignorant of the law and of his rights and liabilities as a witness, easily influenced and overcome by a person of strong mind, all of which was known to defendant, and that defendant was a shrewd business man of wide experience, and of force and determination; that plaintiff, believing that defendant would carry out his threats, and by being put in fear of defendant, and against plaintiff’s will, and upon defendant’s promise not to prosecute him on account of said testimony, plaintiff paid defendant the sum of $900, which he seeks to recover.</p> <p>Demand.— Money Wrongfully Obtained. — Where money has been wrongfully obtained by means of a voidable contract, for which there was received no valuable consideration, a demand before suit is not necessary.</p>

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

<p>Harmless Error. — Sustaining Demurrer to (food Paragraph of Answer. —It is harmless error to sustain a demurrer to a good paragraph of answer if there is a paragraph remaining under which the same facts may be proven.</p> <p>Pleading.- — Beply, Sufficiency of. — Accord and Satisfaction. — Part Payment. — In an action for balance due on a car load of bananas, to which the defendant answered that plaintiff received $550.70 in settlement of the car of bananas in suit, a reply that such sum was not accepted in full satisfaction of the amount due, but that it was received in part payment only, of which fact plaintifE had due notice, is sufficient on demurrer.</p> <p>Sale.' — Executory Contract. — Order for (foods.— What Amounts to Acceptance of (foods. — Vendor and Vendee. — The following order was made of Hoadley & Co., New Orleans, May 13, 1891: “Ship Pottlitzer Bros., Fort Wayne, and Pottlitzer Bros., Lafayette, car each of straight run bananas out of steamer ‘Hewes,’ at $1.50 per bunch,” and May 14, Hoadley & Co. shipped a car of bananas to Pottlitzer Bros., at Lafayette, which arrived May 17, and vendees, on inspecting the bananas, wired vendors, May 18 and 19, that they would not accept the bananas as “straight run,” to which the vendors replied at once, by telegram and by letter, that the bananas were “straight run,” and that they must accept them as such, after which vendees took the bananas into their possession and sold them.</p> <p>field, that the conduct of the vendees constituted an acceptance cf the bananas as per order.</p> <p>Accord and Satisfaction. — What Amounts to. — Delivery of Chech for Less than Amount Due. — Debtor and Creditor. — Where a debtor sends a creditor a check in settlement of an account, the check being less than the amount due, an acceptance of the check by the creditor ■will not amount to an accord and satisfaction of the amount due, unless the creditor must have understood, from the words used by the debtor, in connection with the delivery of the check, that they were to accept it in full of their claim.</p>

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

<p>Pleading. — Seply.—General Averment, — Statute of Limitations. — To an answer setting up the six years’ statute of limitations, a reply, in general terms, that defendant has made payments on the claim within six years, is sufficient without pleading the particulars.</p> <p>Appellate Court. — Decision of. — Law of Case. — A decision of the Appellate Court in a case remains the law of the case throughout all its subsequent stages.</p>

<p>Criminal Law. — Indictment.— Venue, When Sufficiently Laid. — An indictment in the following words, omitting the caption: “The grand jurors for the county of Marion and State of Indiana, upon their oaths, present that Lewis Haase, on the 3d day of January, 1891, at and in the county of Marion, and State aforesaid, did,” etc., sufficiently lays the venue, the “State aforesaid” being a sufficient reference to the State (Indiana) mentioned in the introductory portion.</p> <p>Same. — Interruption of Trial. — Filing New Charge for Same Cause.— Arrest, Arraignment, etc. — Jeopardy.— Variance.- — During the progress of a trial on a criminal charge of assault and battery, the prosecuting attorney conceived the notion that there was a variance between the indictment and the proof upon the name of the injured party, and, so believing, asked the court for time to prepare and file an affidavit and information containing the true name of the injured party, to which the defendant objected, and moved the court for a finding and judgment in his favor, which motion was overruled and exception reserved; and after having prepared and filed an affidavit and information, and issued a warrant thereon, which was served upon the defendant, and due return made, appellant being duly arraigned, refused to plead thereto, and the trial under the indictment was then proceeded with before the court to whom it had been submitted, and the defendant found guilty.</p> <p>Held, that such interruption in the trial on the indictment did not amount to reversible error, no substantial injury aSecting the defendant’s legal rights having been shown, jeopardy not having attached under the new charge.</p> <p>Same. — Matter in Abatement.- — Jeopardy.—That another prosecution is . pending against the defendant for the same oSense, can not constitute matter in abatement until the defendant has been placed in jeopardy in the other action.</p> <p>Same. — Jeopardy.—Jeopardy attaches only after the jury has been sworn, or, if the trial is by the court, after the trial has been entered upon.</p> <p>Judgment. — Sufficiency of Evidence to Support. — The judgment of the trial court will not be disturbed where the evidence is conflicting, or where there is some evidence which supports the finding upon which the judgment is founded.</p>

<p>Evidence. — Sufficiency of. — Judgment.—Where the evidence is conflicting, it is for the jury to determine the facts proven, and their determination will not be reviewed on appeal.</p> <p>Instructions to Jury. — Exceptions to. — Sow Saved. — Filing.—Where written instructions have been given to the jury, or refused, and the proper exceptions taken, which are dated and signed by the judge, the record must show that the instructions were filed as a part of the record of the cause, or there will be no question saved, relating thereto, on appeal.</p>

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

<p>Evidence. — Account Books. — WhenAdmissible.-—Where the transactions of a partnership with another firm became relevant to the issues of an action, the books of the firm with which such dealings were had, containing an account of the transactions, are admissible in - evidence, the accurateness of the entries not being questioned, the entries having been made by a disinterested person.</p> <p>Assignment of Errors. — Assignment, Insufficiency of. — -Evidence.— Where an assignment of' error is that "the court erred in refusing to allow the plaintiff * * to testify as to matters that occurred prior to th’e death of Nathan Gray,” the assignmentis not well made, and is insufficient, where the record shows that plaintiff was permitted to testify to many such matters.</p>

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

<p>Special Verdict.' — Failure to Find Essential Fact. — Not Aided by Intendment. — Recovery.—Where a special verdict fails to find any fact essential to support the complaint, the plaintiff must fail. The special verdict can not be aided by intendment.</p> <p>Same.' — Recovery.—Omission of Essential Fact. — Money Paid Out and Expended. — In an action for money paid out and expended, on failure of the vendee to accept a phaeton ordered of plaintiff, the plaintiff can not recover, -where the special verdict returned contains no finding as to the amount expended.</p> <p>Same. — Recovery.—Omission of Essential Fact. — Damages.—Vendor and Vendee. — In such case, where the plaintiff retains the property and sues for damages (the difference between the contract and the market value at date fixed for delivery), the plaintiff can not recover, where the special verdict contains no finding as to such damages.</p>

<p>Pleading. — Gomplaint, Sufficiency of.— To Set Aside Final Settlement. —Decedent’s Estate. — Fraud.—The final settlement of an estate may be set aside, for mistake, fraud or illegality, as provided by section 2403, R. S. 1881. And a complaint comes within the provisions of the above section which states, in substance, that the defendants, seeking to cheat and defraud plaintiff out of his right in the property left him by his father and mother, both deceased, by falsely representing to the court that this plaintiff was dead, his whereabouts not being known since 1872, it now being 1887, by reason of which representations they caused plaintiff’s estate to be administered upon, etc., in which a final settlement was made, etc., all of which proceedings were unknown to plaintiff, and whereas, in truth and in fact, the whereabouts of plaintiff was known to defendants all of such time. Wherefore, etc.</p>

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

<p>Assignment op Ekkoks. — Omission of Name from Title. — Supplied in Body of Assignment. — Sufficiency.—An omission to give the name of a party appellant in the title of an assignment of error may be supplied in the body of the assignment, and the assignment in that respect will be sufficient.</p> <p>Pleading.— Complaint, Sufficiency of Facts. — No Cause‘of Action Against Part of Defendants. — Subcontractor.—Mechanic's Lien. — Personal Liability. — A railroad company contracted with A. to construct certain piers and abutments for a bridge, and A. in turn sublet the work to B., and B. contracted with 0. for labor and materials. Under such contract, 0. performed labor and furnished certain materials, and in due time filed his notice of intention to hold a lien for the same. 0. brought suit against A. and B. and the railroad company for the amount due, praying judgment against the several defendants, and for a foreclosure of his lien, etc. Under such circumstances has 0. a cause of action against A.?</p> <p>Held, that, as the facts do not disclose any state of facts which Would make A. personally liable to 0., there being no privity between them, nor any principle of subrogation whereby C. could succeed to the rights of A., the benefits of the labor performed and the materials furnished by C. having enured, alone, to B. and the railroad company, no cause of action existed against A.</p> <p>Mechanic’s Lien.— What Constitutes. — Labor.—Board, Groceries, Money Furnished, etc. — Bailroad.—In an action on a mechanic’s, etc., lien for labor performed as a foreman in the construction of the masonry for a bridge for a railroad company, the account contained items, besides that for the labor performed, for board, groceries, tobacco, and money furnished the other employes of the contractors.</p> <p>Held, that the item for labor properly constitutes a lien, but that the other items for board, groceries, etc., not being materials entering into the construction of the work, constituted no lien.</p> <p>Same. — Bailroad Laborer. — Lien, Hoio Obtained. — Notice.—Statute Be-pealed. — Where labor was performed for a railway company in 1889 and 1890, in constructing masonry for a bridge, the employe, whether of a contractor or subcontractor, may have a lien for such work upon filing notice of intention to hold a lien, and no other notice (as provided by the act of March 6, 1883, section 9) is necessary, such section, as to notice, having been expressly repealed by the act of March 9, 1889, sectibn 6.</p> <p>Saiie. — Demand.—In such case, where notice of intention to hold a lien was duly filed, a demand for the money due is not necessary before an action will lie.</p>

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

<p>Estoppel. — Mortgage Deed. — Conveyance by Mortgagee.— Action by Mortgagor for Improvements Made at Bequest. — Where A. conveyed land to B. as indemnity for a debt of security, by a deed absolute upon its face, though in fact only a mortgage, and B. conveys the land without the consent of A., by such conveyance B. will be held . to have treated the deed as an absolute conveyance, and in an action by A. for improvements made on such land at the instance and request of B., B. will be estopped from asserting that the deed from A. to him was only a mortgage.</p>

<p>Principal and Agent. — Contract.—Batification, How Pleaded.- — Estoppel. — Law and Fact. — Batification, as the term is applied to principal and agent, is a fact, and not a legal conclusion, and, as such, maybe pleaded in general terms; but when used in a sense akin to estoppel, it is not proper to plead it in general terms, but the acts constituting the ratification must be specially pleaded.</p> <p>Same. — Contract.—Batification, Definition of. — The contract ratified must be one that the parties might have lawfully made in the first instance, and the person who acts as agent must purport to be the agent of the principal, and the contract must be made upon the faith and credit of the principal, ratification being an adoption of that which was done for and in the name of another.</p> <p>Law and Fact. — Commingling of. — Effect.—Special Findings. — -Conclusions of Law. — Appellate Court Practice. — Where a conclusion of law is cast among the finding of facts, it must be disregarded, and can not be used to help out the conclusions of law as stated by the court; and the same rule applies where a fact is stated among the conclusions of law. The appellate tribunal will not transpose a fact improperly cast among the conclusions of law, and vice versa. Gavin, J., and Davis, J., dissent.</p>

<p>Assignment op Errors. — Cause for New Trial. — How Assigned. — A decision of the trial court, which properly constitutes a cause for new trial, can not be independently assigned as error on appeal, among which causes is a ruling on a motion to suppress a deposition.</p> <p>Evidence. — Declarations.—Marriage, Breach of Contract. — fin an action for breach of marriage contract, a person who visited plaintiff when she was in a state of nervous prostration, is competent to testify to certain statements made to witness, which the witness, at plaintiff’s request, communicated to defendant.</p> <p>Same. — Motion to Strike Out. — Hearsay.—Cross-Examination.—It is not error to overrule a motion to strike out evidence, on the ground that on cross-examination it was made to appear that the witness did not have a positive and distinct recollection as to some of the matters testified to by him on examination in chief, and that answers made by him in chief may have been based, in part, on hearsay.</p> <p>Marriage Contract. — Breach of. — Matters in Mitigation. — Set-Off.—• Counterclaim. — Interrogatories to Jury. — Matters in mitigation, in actions for breach of marriage contract, can not be considered as a set-off or counterclaim, and the jury, in answer to an interrogatory, need not state the amount allowed in mitigation, but should only state what matters were so allowed.</p> <p>Misconduct op Counsel. — Argument to Jury. — Exception, How Saved. —If counsel, in argument to the jury, is guilty of misconduct in making statements of a prejudicial character, not warranted by the evidence, and, on objection thereto being made, the court then and there instructs the jury to disregard such statements, the injured party, if he is not satisfied with such redress, should make his dissatisfaction known by calling the attention of the court to such action as, in his judgment, ought to be taken to remedy the wrong, and if such redress is refused, the party may except thereto and save the question for appellate tribunal.</p> <p>Opinion on petition for rehearing by Davis, C. J.</p>

<p>Poor Person. — Bight to Prosecute as. — Nonresident.—The statute giving to certain persons the right to prosecute or defend as a poor person, applies to nonresidents as well as to residents, and in the event such person is a nonresident, he can not he required to give bond for costs, even though he might have brought his action in his own State.</p>

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

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

<p>Pleading. — Necessary Allegations.— Conclusion. — Personal Injury.— Damages. — Bridge.— County. — In an action against a county for injuries sustained while crossing a bridge, the allegation “that the bridge complained of was constructed at a point where the defendant had a right to, and it was its duty to, construct it,” is a mere conclusion, and does not take the place of the necessary allegations of fact showing that the county had authority to build it.</p> <p>Same. — Sufficient Allegation. — Bridge.—Personal Injury. — County.—In such case, an allegation “that the bridge complained of was situate and located over and across a mill-race, through which a large quantity of water flowed rapidly,” is sufficient to show that the bridge spanned a watercourse.</p> <p>County. — Bridges.—Duty to Keep in Bepair. — A county is only bound to repair such bridges as it is authorized to build; and it is not necessary that the county should have built the bridge in order to give rise to the duty to keep in repair, for a bridge may become a county bridge by adoption, no matter by whom it is built, and such duty extends to approaches and railings.</p> <p>Bridge. — When a County Bridge. — Highway.—Mill-Bace.—Where the excavation of a mill-race across a highway necessitates the construction of a bridge across the race in order to restore the highway to a passable condition, a bridge so constructed, it matters not by whom, becomes a part of the highway.</p> <p>Assignment op Errors. — When Will not Lie. — Presumption.—Where the record does not show when instructions, which have been refused, were tendered to the court, error can not be predicated upon such action, for every presumption will be indulged in favor of the action of the trial court.</p> <p>Evidence. — Bepairs of a Bridge Subsequent to Accident. — Admissible for What Purpose. — In an action for injuries received at a bridge alleged to be defective, and received by reason of such defect, evidence that since the happening of the injuries complained of, there has been a new bridge put in across the watercourse, in the place of the old one, is admissible to prove that the bridge was a part of the highway, but not for the purpose of proving that the defendant had been negligent.</p>

<p>Jurisdiction. — -Appeal.—Amount in Controversy, How Determined. — Appellate Court. — Where, in an action for damages, the jury find for the plaintiff in a certain sum, such sum is the amount in controversy on appeal, and'determines the jurisdiction. Had the jury found generally for the defendant, the amount demanded in the complaint would determine that question.</p> <p>Special Verdict. — Overruling Motion to Strike Out Evidentiary Facts and Legal Conclusions. — Harmless Error. — Duty of Court to Disregard. —If a special verdict contain evidentiary facts or conclusions of law, the court, in passing upon the verdict and in rendering judgment thereon, must disregard the evidentiary facts and legal conclusions ; hence, the overruling of a motion to strike out improper findings in a special verdict is not such error as will warrant a reversal of the judgment.</p> <p>Municipal Corporation.— Defective Sidewalk. — Personal Injury.— Damages. — Liability for. — If a city permit a sidewalk to'become out of repair so that a pedestrian, without knowledge or the means of ascertaining its condition, be injured while using the same, without fault on his part, it is liable therefor.</p> <p>Same. — Streets and Sidewalks, When Sufficiently Constructed. — Presumption. — Notice.—Where a city builds and maintains streets and sidewalks, which are reasonably safe for use by persons exercising ordinary care, it has fulfilled its duty in that respect. And pedestrians may presume that the city has done its duty in constructing and maintaining the same. Actual notice on the part of the corporation, of the defective condition of a street or sidewalk is not necessary where such unsafe condition has existed for such time that, with reasonable diligence, it might have been known.</p> <p>Same. — Special Finding. — Becovery.—Sidewalk.—Personal Injury. — In an action for a personal injury, against a city, alleged to have been received by reason of a defective sidewalk, the plaintiff can not recover where the jury specially find that the walk where the plaintiff was injured “was in a reasonably safe condition for use in the customary and proper way, by persons exercising ordinary care.”</p>

<p>Evidence. — Decedent's Estate. — Attorney.—History of a Land Transaction. — Competency.—Note.—In an action on a claim against a decedent’s estate, involving a note bearing eight per cent, interest alleged to have evolved out of a land transaction between the claimant and the decedent, the attorney for the decedent was permitted to testify to the facts in relation to the land transaction between the decedent and claimant’s husband, with the statement by the court to the jury that plaintiff was not bound by anything that was said or done in her absence, but that the circumstances connected with the transaction were proper to go to the jury with the other evidence in the case.</p> <p>Held, that such testimony, as a history of the transaction, subject to the limitations stated by the court, was proper to go to the jury, in order to make the evidence offered in relation to the transaction more intelligible.</p> <p>Same. — Nonexecution of Note. — Circumstance for Jury. — Alleged Maker Having Money to Loan at Date of Execution. — Decedent’s Estate. — In such case, where the defenses interposed were nonexeeution of the note and want of consideration, evidence that the decedent had when the debt in question was said to have been created in 1876 on hand or in bank, from $300 to $1,500, and that decedent made a loan of $300 at six per cent, interest, about the time of the alleged execution of the note, and that decedent continued to have such sums of money at her command during all the time prior to the execution of the note, was admissible as a circumstance which the jury might consider in determining whether such debt was so created and allowed to stand as an open account from 1876 to 1887, and whether the note was then executed as evidence thereof, at eight per cent., when she had money to ioan at six per cent.</p>

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

<p>Harmless Error.' — Sustaining Demurrer to Paragraph of Answer. — It is harmless error to sustain a demurrer to a paragraph of answer, even if good, where the facts provable under such paragraph were admissible under the general denial, which was also pleaded.</p> <p>New Trial. — Joint Motion.— Overruling as to One and Sustaining as to Another. — A party can not be heard to complain of the overruling of a joint motion for a new trial, as to him, unless the motion is well taken as to all the parties who join in making it. In such case, the court may overrule as to one, and sustain it as to another.</p> <p>Same. — Surprise as a Cause. — Since a party who is surprised by the testimony of a witness may procure a continuance on account of such surprise, if, upon motion, he show proper grounds, a strong and clear case must he made before a reversal will be founded upon such cause as a ground for a new trial.</p> <p>Same. — Newly Discovered Evidence.- — When a Cause. — Diligence, When Sufficiently Shown. — Newly discovered evidence is not a ground for a new trial, where no sufficient excuse is shown for the failure to have the testimony at the trial; nor is it sufficient for the party to state in his affidavit, that he could not, with reasonable diligence, have discovered such testimony, for it is incumbent upon him to set out, in his affidavit, the facts constituting diligence.</p> <p>Assault and Batteby. — Instruction to Jury. — Conspiracy.—Evidence.— In an action for damages for an assault and battery, where there was some evidence of a conspiracy leading up to the assault and battery, it is not error for the court to instruct the jury as to what constitutes a conspiracy, the jury being entitled to all the facts and circumstances leading up to the assault and battery.</p> <p>Same. — Instruction to Jury. — Assumption of Fact. — In an action for damages for assault and battery, where the court instructed the jury that if it had been shown that plaintiff had occasionally been meeting at her place of residence a person with whom she had had improper relations, such fact would not justify an assault and battery upon her, such instruction was not erroneous on the ground that it assumes the fact of assault and battery.</p> <p>Same. — Damages, Elements of. — Special Proof. — In an action for assault and battery, the jury has a right to consider all the elements entering into the damages, without special proof as to amounts. Damages. — Excessive,'as a Cause for Beversal. — A judgment will not be reversed on the ground of excessive damages, unless the amount is so large as to lead to the conclusion that it must have been the result of prejudice, partiality, or corruption.</p> <p>Instructions to Juey. — Party Must Ash for, or he Estopped to Com. plain of an Omission. — A party desiring an instruction on a certain point must ásk for it, or he will not be heard to complain because of the absence of such instruction.</p>

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

<p>Insurance. — Accident Insurance. — Premium, What Amounts to Payment of.— Tender of Full Amount of Premium. — Promise by Agent to Apply a Debt Owing by Sim to Insured on Premium. — Presumption.— Where, at the time of the execution of an application for accident insurance, the person seeking insurance exhibited, offered, and tendered to the company’s soliciting and collecting agent, the full amount of the first annual premium for the policy, and the agent was owing the insured a sum less than the amount of the premium, and the agent told the insured to pay him, the agent, the excess of the premium over the amount owing by the agent to the insured, and he, the agent, would pay to the company the amount owing by the agent to the insured, and the insured, acting in entire good faith, paid the sum in excess of the debt owing by the agent to him, and relied, in good faith, upon the agent’s statement, that he, the agent, would pay to the insurance company the remainder of the premium, this, in law, would be a sufficient payment of the premium by the insured; and the insured is not bound to see that the agent pays the money to the company, but he has the right to . presume that it has been so paid, until he has notice to the contrary.</p> <p>Same. — Authority of Agent. — Waiver.—In such case the agent, acting in the general scope of his authority, had the power to waive the payment of the premium in several different installments, and to accept payment in advance, his powers in such matters being equal to the powers of the officers of the company at the home office.</p> <p>Same. — Authority of Agent. — Special Limitation. — Notice of. — In such case, if the party acts in good faith with the agent, relying upon the statements made by such agent, within the scope of his apparent authority, the principal will be bound by such statements, and if there is any limitation on the power of the agent, within the scope of the particular business, it is the duty of the principal to bring the same to knowledge of the applicant.</p> <p>Same. — Contract.—Construction.—The same principles of law ordinarily govern the construction of insurance contracts that govern the construction of other contracts.</p> <p>Opinion on petition for rehearing by Davis, O. J.</p>

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

<p>Drainage. — Foreclosure of Lien. — Misdescription of Land.— When Description Sufficient to Put Parties Upon Inquiry. — Estoppel.—Where, in an action to foreclose a drainage lien, the land was described as 443 acres, in reserve 53, township 29 north, range 10 east, whereas, in fact, only about 150 acres of such land lay in township 29, and reserve and range as stated, the remainder lying in township 28 north, reserve and range as above stated, such description was sufficient to put the defendants on inquiry, and they can not plead that they were misled thereby and induced to refrain from remonstrating, and confine the decree alone to the land lying in township 29.</p>

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

<p>Decedent’s Estate. — Letters of Administration. — When and Where May he &>-anted. — Resident Lying Leaving no Assets in the State. — Letters of administration may be granted under subdivision 1, section 2228, R. S. 1881, in the county where, at his death, the intestate was an inhabitant, leaving no assets in the State, and none coming into it afterward. One of the various reasons for administration, under such circumstances, may be to prosecute some claim of indeterminate value, as for the death of the intestate, as provided by section 284, R. S. 1881.</p> <p>Same. — Administrator, Oause for Removal of, — Discretion, Abuse of.— Inventory.- — Bond.—The failure of an administrator to give bond or to lile an inventory in the time required by statute, or, if no assets, a statement showing such fact, is good ground for removal; but as to such matters the circuit court has a wide discretion, and unless a clear abuse of discretion is shown, the action of the court will not be disturbed on appeal.</p>

<p>Evidence. — Insufficiency of.- — Highway.—Proceeding to Hstablish. — Damages.- — In a proceeding to establish a highway, the judgment in a former proceeding relating to the same subject-matter, which had beon rendered more than six years prior to the commencement of the subsequent action, the damages in the former proceeding having never been paid, nor the highway, as established thereby, never having been opened or worked as such, the judgment in the former proceeding is not a proper basis for damages in the subsequent action, and that being the only evidence, there is clearly a failure of proof.</p> <p>Highway. — Proceeding to Hstablish. — Judgment Functus Officio. — Subsequent Proceeding De Novo. — Where a highway has been established, but has not been opened or used within six years from the time of its establishment, the judgment establishing the highway becomes functus officio, or inoperative, and the only way in which the highway may be again established is by a proceeding de novo.</p>

<p>Pbincipal and Agent.- — Bendering Services at Bequest of Another. — JRecovery. — Broker.—License.—Where a person not engaged in a regular business of stock and exchange broker renders services at the instance and request of another, in the sale of bank stock, the former is entitled to recover of the latter the reasonable value of the services rendered, such services not being in violation of section 5269, et seq., R. S. 1881.</p>

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

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

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

<p>Failure of Proof. — Action on Account by A. for Goods Sold and Delivered to B. — Proof of Sale by G. to B. — Recovery.-—Evidence, Sufficiency of. — Partnership.—Corporation.—Where several plaintiffs join in an action, as partners, for goods sold and delivered to the defendants, and the evidence develops the fact that defendants purchased the goods of A. & Co., and that A. & Co. is a corporation of which plaintiffs are the sole stockholders, the plaintiffs can not recover, the cause of action being one in favor of the corporation, for which the stockholders can not, as individuals, recover, the corporation being, in legal contemplation, separate and distinct from its members or stockholders.</p> <p>Samis. — Legal Capacity to Sue. — Waiver.—Beal Parties in Interest.— Variance. — Amendment of Pleading. — Presumption.—In such case, the defect is not that plaintiffs have not legal capacity to sue, and subject to the principle of waiver. The want of legal capacity to sue has reference to legal disability, such as infancy, idiocy, etc. Neither are the plaintiffs, the stockholders, the real parties in interest ; nor is the variance between the complaint and the proof such as this court will presume to have been cured by amendment.</p>

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