Volume 87 — Indiana Reports

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

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

<p>Appeal Bond. — Penally and Surety. — Approval of Court. — Under section 555 of the civil code of 1852 (sec. 638, B. S. 1881), where an appeal is taken daring term to the Supreme Court, it is necessary to the validity of the appeal bond that its penalty and the surety therein should be approved by the court.</p> <p>Same. — Question of Fact.— Weight of Fhidence. — Supreme Court. — In such case the question as to whether or not the appeal bond was given with such penalty and surety as the court approved is a question of fact, and not of law; and where there is evidence in the record tending to sustain the finding of the trial court that the penalty and surety of such bond were approved by the court, the Supreme Court will not reverse the judgment on the weight of the evidence.</p>

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

<p>Costs.— Justice of the Peace. — Change of Venue. — Appeal—Judgment.—Appearance. — A defendant, sued before a justice of the peace, appeared and obtained a change of venue to another justice, who issued a summons for him, but ho made default, and a judgment went against him. He-appealed and reduced the judgment five dollars.</p> <p>Held, that the costs of the summons issued by the justice to whom the change was taken should be taxed to the plaintiff, that writ being irregular.</p> <p>Held, also, that the plaintiff was entitled to all other costs in the cause, inasmuch as the defendant did not appear at the trial before the justice.</p>

<p>Pleading.— Uncertainty. — •Demurrer.—Uncertainty in a pleading, the result of using a wrong word, when the meaning is obvious, is not ground for demurrer.</p> <p>Same. — Arrest of Judgment. — A defective or inaccurate statement of the.cause of action is cured by a general verdict.</p>

<p>Warranty. — Breach of. — Pleading.—Sale.—Fraud.—A pleading based on the breach of an express warranty of goods sold need not show that the purchaser was deceived by the warranty, nor that the purchase would not have been made but for the warranty.</p> <p>Same. — Principal and Agent. — Oral and Written Warranty. — Merger.—Contract. —Fvidence.—Where an agent selling goods for his principal orally warrants their quality for himself, and as agent procures the making of a contract of purchase in writing, containing a warranty of his principal, the former warranty is not merged in the latter, but is a separate contract, binding the agent personally, and in an action on one of the notes given in payment of the articles sold, payable to the agent, evidence of the oral warranty is admissible.</p> <p>Practice. — Insufficiency of Pleading. — Judgment non Obstante. — Supreme Court. —Whore an answer is deemed insufficient, the plaintiff, after verdict against him, may present the question by motion for judgment non obstante veredicto, but can not make the question for the first time in the Supreme Court.</p>

<p>County Commissioners.— Quorum— Two members oí a hoard of county commissioners are a quorum with power to act, under the provisions of section 5731, B. S. 1881.</p> <p>Cities. — Annexation of Territory.— Notice. — Statute Construed. — Notice of a petition to the county board for the annexation of unplatted territory to a city, under section 3196, B. S. 1881, is sufficient if given thirty days, excluding the first day and counting the last one, and the signature of the city clerk, attested by the city attorney, is a sufficient signing, where it is also shown that the common council directed the notice to be given.</p> <p>Same.— Boundary in Petition and Notice.— Description.— Variance. — Such notice gave a line of the territory to be annexed, from a certain point on a certain road, “ with said road north 241° west, 1295 feet to,” etc.; the petition described the line in the same words save the course, which it gave as “ north 24,1° west.”</p> <p>Held no variance, the monuments given in both fixing the course definitely.</p> <p>Same. — A petition for such annexation is not faulty because it excepts from its prayer platted territory within the lines of a larger territory described, nor because the territory sought to he annexed is composed of separate tracts, some of which do not adjoin the existing city boundary, if thej do adjoin each other.</p> <p>Same. — Decision of County Board. — The sufficiency of reasons for annexation stated in such petition must be left to the tribunal acting upon it, using abound discretion. That the inhabitants enjoy the advantages of city government and institutions, and ought, therefore, to share its burdens; that its highways should be properly graded and improved; that drainage may he provided, and the like, are sufficient.</p> <p>Same. — Evidence.—That some of the owners of the proposed territory, not remonstrants, had, four months before the presentation of the petition, given their written consent to the proposed annexation, is not material, nor is it proper evidence for the remonstrants, on the hearing of such a petition, when a number of other owners have refused.</p> <p>J ury. — ■Misconduct.—A jocose remark of a juror, trying such a cause, to an owner of territory sought to be annexed, “ Do you want that territory ' brought into the corporation? ” which was answered “ No,” is not such misconduct as should set aside a verdict for annexation.</p> <p>Record. — Signing Entries. — That entries were not signed until vacation after the term, does not make the judgment void, it being merely an irregularity. Whether such judgment could be enforced until read and signed in open court, quaere?</p>

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

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

<p>Criminal Law. — Indictment—Disturbing Meeting. — Statute Construed. — An indictment under section 1988, R. S. 1881, charging in proper terms a, disturbance of “ a meeting of inhabitants of S. county, and State of Indiana, met together for a lawful purpose,” is sufficient, without stating more specifically the purpose of the meeting.</p>

<p>Promissory Note. — Endorsement.—Delivery.—An endorsement of a promissory note without delivery passes no title, and a complaint by the holder thereof, showing such an endorsement by him, is not, for that reason, insufficient.</p> <p>Same. — Married Woman. — Contract.—Under section 3, Acts 1879, p. 160, a promissory note executed by a married woman for personal property bought by her for herself is valid.</p> <p>Same. — Husband and Wife. — Consideration.— Gift.— Set-Off.— Assignor and Assignee. — Estoppel.—Suit by an assignee on a note payable to a husband and wife. Answer, as a set-off, that the consideration moved exclusively from the husband, and that the wife’s name as a payee was inserted at his request; that the husband then owed, and still owes, the defendant $500 for rents, and is a non-resident and insolvent.</p> <p>Held, that the answer was insufficient.</p> <p>Held, also, that the effect of such request complied with was to make the wife the donee of the husband, and by such gift, in the absence of fraud, she acquired a joint interest in the note, and a claim against her husband alone could not be set off against them or their assignee.</p> <p>Held, also, that the maker of the note was estopped from saying he became indebted to the husband only.</p>

<p>Pleading. — Harmless Error. — When there are two good paragraphs of a complaint so similar that exactly the same evidence is admissible and sufficient under each, it is a harmless error to sustain a demurrer to one • of them.</p> <p>City. — Street.—Personal Injury.— Pannages. — Wrong-doer, Action Against by Oily for Repayment. — A municipal corporation may maintain an action against one who makes its streets dangerous, for the recovery of damages-it has been compelled to pay to one who has received injuries because of the unsafe or defective condition of the street.</p> <p>Same.— Negligence. — ■Notice.— Res Adjudicóla.— Where the person who-wrongfully or negligently causes a public street to be made unsafe for travel is notified of an action against the municipal corporation, instituted by one who has suffered injury because of such wrongful and negligent act, the judgment will be conclusive against him as to the questions adjudicated in that action.</p> <p>Same. — License.—A license to use a public street does not exculpate the licensee from the consequences of his negligence.</p> <p>Same. — Sidewalk.—Liability of Adjoining Property Owner. — A citizen can not he held liable for an injury resulting from a defective sidewalk upon the ground that he is the owner of the adjoining lot and makes more use than others of a thing causing the injury, constructed and kept for public convenience, to which all have a common right, and over which no-one citizen has specific control.</p> <p>Same. — A citizen of a municipality is not responsible for an injury resulting from an unsafe condition of a street, unless his act caused it to-become unsafe, or he has been guilty of some breach of duty in the particular instance.</p> <p>Same. — Case Stated. — One who was injured by a fall in consequence of ice accumulated about a pump on a sidewalk of a city recovered damages against the city. The city then sued W., who had been notified to defend the suit, to reimburse itself. It appeared by special verdict that W. owned the adjoining lot since 1860 ; that the well had been made for public use by leading citizens in 1852, and with a sample pump put in it, with W.’s consent, by a dealer in pumps, had been ever since used by the public, including the lot owner, who claimed no exclusive interest in it, though on one occasion he caused trifling repairs to be made to the pump. In 1879, before the injury, the city marshal, by direction of the city, notified W. to remove the pump, and by agreement with the marshal, and W.’s consent, it was moved nearer the line of the lot.</p> <p>Held, that a judgment thereon for W. was correct, no wrongful act appearing to have been done by him.</p>

<p>Drainage. — Ditches.—Liability for Obstructing. — The owner oí land is liable, under the drainage law, for obstructing a ditch on his own land, only when wilfully done.</p> <p>Same. — Complaint.—A complaint against a land-owner for obstructing a drain upon his own land should show that the drain was constructed under the statute.</p> <p>Same. — Evidence. — Order of County Board for Establishment. — The order of a county board for the construction of a ditch is admissible in an action for obstructing, to show the legality, but not the actual opening, capacity or utility of the drain.</p> <p>Same. — Negligence.—Contributory Fault. — In the absence of wilful injury, the plaintiff who has stood by and permitted his crops to be ruined by reason of an obstruction in a drain, which he might easily have removed, has no remedy.</p> <p>Practice. — Instructions.—Immaterial Error. — Yerbal inaccuracies in an instruction will be disregarded on appeal, when upon all the instructions the jury must have apprehended the right meaning.</p> <p>Same.— Record.— Affidavits filed with a motion for a new trial do not thereby become part of the record on appeal.</p>

<p>Bill of Exceptions. — Btotion to Strike Out Pleading. — Affidavits.—Amotion to strike out or make a pleading more specific can be shown in the record only by bill of exceptions or a special order; so, also, as to affidavits in support of motions made during the progress of a cause.</p> <p>Negligence. — Action for Death of Another. — Pleading.—Decedents' Estates.— In a suit in the name of an administrator, for an injury causing the death of his intestate, the complaint need not negative contributory negligence by the administrator.</p> <p>Same. — Injury by Go-Servant. — Employer and Employee. — Where a master fails to use ordinary and reasonable care in selecting a co-servant, and, being ignorant concerning him, employs him without enquiry, a fellow-servant who, without fault, is injured by the negligence and want of skill of the co-servant, may recover of the master, if the other facts requisite to a cause of action exist.</p> <p>Instructions. — Presumption.—Unless all instructions given appear by the record, it will be presumed that others refused were embraced in those given.</p>

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

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

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

<p>JpBAcrrcE. — Conclusions of Law. — Exception.—-Exception to conclusions of law upon facts specially found must be taken before the taking of any other step in the cause by the excepting party.</p> <p>.Same. — Pleading.—•Demurrer.— Waiver. — Error in the sustaining of a demurrer is waived by the filing of an amended pleading instead of the one demurred to.</p>

<p>Pleading. — Exhibits.—Dejects Cured by Verdict. — A failure to exhibit copies of a note and mortgage, by a complaint to foreclose, is a defect cured by verdict.</p> <p>Attachment. — Mortgage.—Foreclosure.—An attachment and writ of garnishment may issue in a suit to foreclose a mortgage whenever a personal judgment may be rendered; but whether this would be so where the mortgage security is ample, queere.</p>

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

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

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

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

<p>Prom the Jackson Circuit 'Court.</p>

<p>Brtiii 03? Exceptions. — Time Given for Filing Beyond Term. — Errors.—Supreme Court. — Where time is given beyond the term for filing a bill of exceptions, until a day named, the filing of the bill on such day is not within the time limited, and such bill does not become a part of the record ; and where the errors complained of are shown only by such bill of exceptions so filed, they are not apparent in the record, and present no question for the decision of the Supreme Court.</p> <p>Same. — Motion to Strike Out Bill of Exceptions. — Where it is claimed that a bill of exceptions is not in the record, a formal motion to strike it out is unnecessary, and, if made, it will not be considered or passed upon until the cause is finally decided by the Supreme Court. In such a case all that is necessary is a statement in the briefs of counsel of the grounds upon which it is claimed that the bill is not in the record.</p>

<p>Supreme Court. — Transcript.—Defects.—Certiorari.—Where a transcript for appeal is made up under the direction of the appellant, as provided in section 649, R. S. 1881, the appeal can not be dismissed for defects in it, but they may be cured by certiorari.</p> <p>New Trial. — Evidence.—Dill of Exceptions. — A motion for a new trial for the improper admission of evidence, not specifying it, is not cured by referring for specification to a bill of exceptions not then in existence.</p> <p>Real Estate, Action to Recover. — Complaint.—Possession.—A complaint for the possession of land, which does not aver that the plaintiff is entitled to possession, is bad on demurrer.</p>

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

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

<p>giiEurpr’s Sale. — Publication of Notice in Sunday Newspaper. — Injunction.— publication of notice of a sheriff’s sale in a Sunday newspaper is void, being forbidden by statute, E. S. 1881, section 2000, and the sale may be prevented by injunction.</p>

<p>Judgment. — Lien of. — Heal Estate and Chattels Real. — Agreement of Record.— All final judgments in the Supreme and circuit courts, and courts of common pleas, under section 527 of the civil code of 1852 (section 608, B. S. 1881), were a lien upon real estate and chattels real, liable to execution, in the county where the judgment was rendered, for the space of' ten years after the rendition thereof, exclusive of the time during which the party was restrained from proceeding thereon, “ by agreement of the parties entered of record.”</p> <p>Vendor’s Equitable Lien.— Unpaid Purchase-Money.— Waiver. — The vendor’s equitable lien on real estate sold, as security for the payment of' unpaid purchase-money, is regarded as waived, abandoned or lost, when it appears that the vendor has secured such payment in some other manner.</p>

<p>Mortgage. — Execution.—Sale on Personal Judgment for Mortgage Debt. — Pitcairn# Sale. — A sale of mortgaged real estate on execution upon a personal judgment taken on the mortgage debt is void, and may be so declared At the suit of the mortgagee, who had taken the judgment, caused the sale, and bid off the property.</p> <p>Same. — Covenants of Warranty. — Estoppel.—The covenants of warranty in a mortgage estop the mortgagor from denying the title which the mortgage purports to incumber.</p>

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

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

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

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

<p>Account. — Tkidenee.—New Trial. — Supreme Court. — In a suit upon an open account for an alleged indebtedness, evidence in relation to the amount and value of the defendant’s property is irrelevant and incompetent, and, if admitted and assigned as cause for a new trial, the Supreme Court will reverse the judgment for error in its admission.</p>

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

<p>Promissory Note. — Action on, Against Maher and Endorser. — The maker and endorser of a note negotiable by the law merchant, or by the law of this State, may be jointly sued thereon by the endorsee thereof. Section 5516, E. S. 1881.</p>

<p>Alien. — Pseheats.—Descents.—Pleading.—A complaint by the State to recover lands as escheated, alleging that in 1858 A. died intestate, seized, leaving no heirs in the United States capable of inheriting, and thatM. D., only sister of the intestate, and a resident of the German empire, conveyed the lands in August, 1881, to the defendant W., is bad by reason of the statute of 1861, 1 R. S. 1876, p. 61.</p> <p>Same. — In such case, the complaint, to show title in the State, must allege, either that the decedent was a non-resident of the State at the time of his death, or, if a resident, that he left no non-resident alien heirs, or, if any, that they did not convey the land during eight years immediately after the passage of the act of 1861.</p>

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

<p>Negligence. — Railroad.—Evidence.—Jury.—Supreme Court. — Where, in an • action against a railroad, company to recover the value of property destroyed by fire, the complaint charges negligence not merely in running-tile train, but in permitting dry grass, etc., to accumulate on the right of way, and in running over its track an engine not in proper condition, from which the fire escaped, and fallowing the fire to spread to the plaintiff’s land, causing the injury, and a general verdict is returned for the plaintiff, the Supreme Court will not disturb it on the weight of the evidence, the jury having the right to consider all the circumstances as well as the direct proof, and, in case of a conflict of evidence, to determine whether or not the alleged negligence was proven.</p> <p>Instruction. — Jury.—Practice.—Harmless Error. — A direction to the .jury that the first enquiry should be as to a certain question involved, which, if found for the defendant, ought to result in a verdict for him, can not harm the defendant, though it is the province of the jury to adopt such order for the consideration of the questions involved as they may prefer.</p>

<p>Practice. — Supreme Court. — The Supreme Court will not, on appeal, weigh conflicting evidence.</p> <p>Same. — Eoidence.—In an action for work and labor, the defendant read in evidence a letter of the plaintiff to a third party, claiming pay from him for the work; the plaintiff then testified''that the letter was written at the dictation of the defendant, and it was not error to permit to be read in evidence the letter received iu response, denying the third party’s liability.</p>

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

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

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

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

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

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

<p>Bill op Exceptions. — Evidence.—Omitted Item. — ■Practice.—Supreme Qourt. —Where the transcript of a bill of exceptions does not contain copies of items of written evidence, which the bill shows were read, the Supreme Court will regard the blanks as showing omissions of evidence necessary to enable it to determine whether the evidence itself, as a whole, was sufficient, and, in such case, although the bill of exceptions contains the statement that “ this was all the evidence given in the cause,” it will be regarded as imperfect, and the judgment will not be reversed upon any question depending for its proper decision upon the sufficiency of the evidence.</p>

<p>Practice. — Pleading m■ Part thereof Rejected. — Bill of Exceptions. — Supreme Court. — Where a motion to reject or strike out a pleading, or some part thereof, is sustained, such pleading or part thereof will constitute no part of the record, on an appeal to the Supreme Court, unless it is made so by bill of exceptions or order of court.</p>

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

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

<p>-Change oe Venue. — Bias of Judge. — An affidavit for a change of venue for bias of the judge, which discloses that a decision by the court of a question of law against the party was the real reason which induced the application, is insufficient, inasmuch as the charge of bias is fully negatived by the affidavit itself.</p> <p>Evidence. — Admissions.—Promissory Note. — Non. est Factum. — In a suit on a promissory note, the execution of which was in issue, a letter received by the defendant from the plaintiff, informing him of the loss of the note, fully describing it, and requesting him not to pay it if presented, to which the defendant made no reply, is admissible evidence for the plaintiff.</p> <p>¡Same. — Harmless Error. — The improper admission of evidence, which it is clear could not have harmed the opposite party, is not available error.</p>

<p>Certificate of Deposit. — Payment.—Recoverxj biy Endorsees Barred After Six Years.— Unreasonable Delay. — Endorsees of a bank’s certificate of deposit, not bearing interest, who received it more than six years after it had been paid and should have been surrendered, took it as dishonored paper and not as acontinuing negotiable security,-and can not enforce its second payment by the bank after such unreasonable delay.</p> <p>Same. — Promissory Note. — Dishonored Paper. — Such a certificate is to be regarded as a promissory note, and, if negotiable, must be regarded as paper dishonored by lapse of time when it was negotiated.</p>

<p>Sheriff. — Indemnity Bond. — A sheriff who has levied an execution is not bound unconditionally to defend his levy, and may take from the party concerned an indemnifying bond.</p> <p>Same. — Such indemnifying bond is not statutory, but a common-law undertaking.</p>

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

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

<p>Vendor’s Lien. — Evidence.— Verdict. — Foreclosure.—As to what is sufficient evidence to show a vendor’s lien, entitling the vendor of real estate to a verdict and a decree for the foreclosure thereof, see opinion.</p>

<p>Bill op Exceptions. — Evidence.—Statement.—Where a transcript of a bill of exceptions does not contain an item of written evidence referred to therein, its concluding statement that it contains all the evidence will be deemed untrue, and the bill will not enable the Supreme Court to decide that the finding was not sustained by the evidence, or that the damages were excessive.</p>

<p>Costs. — Offer to Confess Judgment. — Practice.—An offer to confess judgment for the plaintiff for a certain sum, “and all costs to this date,” filed in open court, and at the time refused by the plaintiff’s attorney, is sufficient, under section 514, E. S. 1881, to charge the plaintiff with all costs accruing thereafter if a greater sum than that offered be not recovered.</p> <p>Same. — Notice.—Such filing of the offer to confess, in open court, and then calling the attention of the plaintiff’s attorney to it, is sufficient notice, of the offer.</p>

<p>From the Superior Court of Vanderburgh County.</p>

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

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

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

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

<p>Satisfaction of Mortgage. — Power of Court. — Entry of Satisfaction. — When it appears in a suit for the foreclosure of a mortgage, that such mortgage ought to be entered satisfied, and the court has so found and determined, .it is within the equitable power of the court to order and direct its clerk to enter satisfaction of such mortgage on the record thereof, in the recorder’s office of the proper county.</p> <p>Same. — Judgment.—Effect of Appeal. — In such case an appeal from the judgment, with notice thereof, would not alone stay proceedings under the judgment, or prevent the clerk from making such entry of satisfaction.</p>

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

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

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

<p>Decedents’ Estates. — lixcgiiiom to Account Current. — Exceptions to an account current of an executor or administrator are proper, under section 2891, B. S. 1881, only to test the coi-rcctness thereof, and should not be entertained for other purposes.</p>

<p>Bankruptcy. — Fraudulent Conveyance — The bankrupt act vests the assignee in bankruptcy with authority to institute suits to set aside fraudulent conveyances, and creditors can not maintain such a suit.</p> <p>Same. — Discharge.—Collateral Attack. — The judgment of the court decreeing a discharge in bankruptcy can not be collaterally attacked.</p>

<p>Supreme Court. — Assignment of Error. — An assignment of error, that the court below erred in rendering judgment in favor of the appellee instead of the appellant, is too general to present any question in the Supreme Court.</p> <p>Special Judge. — Appointment.—Bill of Exceptions. — Signature.—A bill of exceptions signed by a special judge, the record not showing that he had presided at the trial, can not be regarded as in the record.</p> <p>Promissory Note. — Mortgage.—Foreign Corporation. — Filing Agent's Authority. — Contract.—Pleading.—Abatement.—In a suit upon a note and mortgage made to a foreign corporation, for a loan of money, an answer in abatement, that the corporation had not complied with the conditions of the statute imposing certain duties on such corporations, before doing business in this State (R. S. 1881, sections 3022-3025), is bad on demurrer, it not appearing where the loan was made.</p>

<p>Corporation.— Wrongful Conversion of Corporate Property. — Action by Stockholders. — The stockholders of an existing corporation can not maintain an action, in their individual names, for the alleged wrongful conversion of the corporate money or property, but the right of action therefor is in the corporation.</p> <p>Same. — Forfeiture of Charter. — Strangers.—The violation of the by-laws and constitution of a corporation, by its officers and members, will give no right of action or legal cause of complaint to persons who are not members of, but strangers to, such corporation.</p>

<p>Promissory Note. — Mortgage.—Interest.— Usury. — Payment.—Recoupment.—~ Extension of Time. — Pleading.—Departure.—Complaint to foreclose a mortgage given in 1856 to secure four notes, one of which was for $2,000; and averring that on settlement a balance was found due on that note of $866.25, for which a note now due was given, a copy of which and of the mortgage was filed with the complaint. Answer, that certain payments had been made at certain times upon the notes described in the mortgage, which payments were stated particularly, that the original notes were for purchase-money of the land mortgaged, and that the note in suit ($866.25) was for the balance of the purchase-money due at its date, and included, as usurious interest paid on the mortgage indebtedness, the sum of $641.26, which it was sought to recoup. Beply, that for extension of time for payment of said original notes after their maturity, the defendant agreed to pay interest at 10 per cent, per annum; that the payments specified in the answer were made under that agreement, and were first applied to the interest due on the several notes at the date of such payments, at the rate so agreed on, whereby there was at the date-, of the note in suit the sum named in it.</p> <p>Held, that the reply was not a departure, and was good on demurrer.</p>

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

<p>Office. — Quo Warranto. — Information by One Claiming by Election. — Eligibility. — An information to oust one from an office, prosecuted on the relation of one who claims the office by election, is bad if it do not show that the relator is eligible.</p>

<p>Negligence. — Railroad.—Injwry by Fires Spreading. — Pleading.—In a suit-against a railroad company for injury by the spread of fire to adjoining-premises, -a complaint is bad which does not charge negligence in permitting the fire so to spread. Woods, C. J., dissents.</p>

<p>Buildino Association. — Bond of Secretary. — Dues and Assessments. — Corporations.— The by-laws of a building association required dues and assessments to be paid to the secretary at weekly meetings, and also required that officer to give bond for the faithful performance of his duties.</p> <p>Meld, that the bond covered all money received by him in his official character, whether paid at the times required or not.</p>

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

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

<p>Description. — Seal Estate. — Complaint.—Cross Complaint. —Pleading.—Practice. — A description of real estate in a cross complaint in an action to quiet title, omitting the county and State, but designating it as “ the real estate in complaint mentioned,” is sufficient. Such a reference is not for the purpose of supplying a needed statement of fact, but is for identification only.</p> <p>Same. — Where property is so described that a decree can be entered that will enable the sheriff to put the claimant in possession, the description is sufficient.</p> <p>Defect of Parties. — Demurrer.—Practice.—A demurrer for defect of parties must specifically point out the defect.</p> <p>Courts. — Common Pleas. — Records not Signed. — Evidence.—Kecords of judgments of the courts of common pleas signed after March 6th, 1873, by order of the circuit courts, arc admissible in evidence, if otherwise-regular.</p> <p>Same. — Act of April SOth, 1881. — Constitutional Law. — The act of April 20th, 1881, Acts 1881, p. 93, making all unsigned records valid and effective, was within the power of the Legislature.</p> <p>Same. — In enacting a statute curing defects in proceedings in the courts, the Legislature does not usurp judicial functions.</p>

<p>City. — Negligence of Fire Department. — A city authorized to maintain and maintaining water-works and a fire department, and collecting taxes for that purpose, is not responsible for the negligence of its fire department in permitting the property oí a citizen to be burned.</p>

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

<p>Negligence.— Railroads.— Pleading.— Liability for Fires.— A complaint against a railroad company for damages resulting, from the escape of fire from the right of way, averring negligence in permitting fire to kindle combustibles on its own property, but not averring negligence in permitting the fire to spread to the adjoining premises, is bad on demurrer.</p>

<p>Practice. — Change of Venue. — Motion to Remand. — New Trial. — The ruling oí a court in remanding, or in rescinding an order remanding, a cause to the court whence it had been removed by a change of venue will not be reviewed on appeal unless made a cause in the motion for a new trial.</p> <p>Same. — Bill of Exceptions. — An exception to the rescinding of an order remanding a cause to the court whence the venue had been changed is not available when the bill of exceptions does not show the remanding order, nor when and for what reason it was made.</p> <p>Same. — Assessment of Damages. — The Supreme Court will not consider, upon conflicting evidence, whether or not the assessment of damages is excessive.</p>

<p>Pleading. — Practice,—Where there is a good answer, a motion by the plaintiff for judgment on the pleadings, or non obstante veredicto, should be over-ruled.</p> <p>.Real Estate, Action to Recover. — Pleading.—Landlord and Tenant.— Contract.— Vendor and Vendee. — Complaint for the possession of real estate in two paragraphs: 1. In the ordinary short form. 2. Setting forth specially the facts showing the plaintiff’s title in fee, that the defendant was tenant under a lease for 10 years from the plaintiff’s grantor; that his term had expired and possession liad been demanded and refused. Answer that the defendant was put in possession under a contract of purchase with the plaintiff’s grantor on ten years’ credit; that he had paid the price and performed all conditions, and that the plaintiff purchased with notice.</p> <p>Held, that the answer was good.</p> <p>.Bill of Exceptions. — Time of Filing. — Practice.—Short-Hand Rq>orter. — A motion for a new trial was made but not disposed of until the next term, when it was overruled and time given for bills of exception, three of which were filed within the time allowed. Two of them related to rulings during the trial, and the third embraced merely the short-hand reporter’s report of the evidence, and was not signed by the judge.</p> <p>Held, that the first and second were too late, and the third was not sufficient to bring the evidence into the record.</p>

<p>Promissory Note. — Consideration.—Dismissal of Came. — The dismissal of a pending cause is a sufficient consideration for a promise to pay a sum of money.</p> <p>Change or Venue. — Judge.—Rule of Court. — Practice.—A rule of court, that an application for a change of venue or of judge can riot be made after the second day of the term, is valid.</p>

<p>Negligence.— Railroads.— Liability for Fires.— Pleading. — A complaint, against a railroad company, averring negligence in suffering the accumulation of combustibles upon its right of way, and negligence in the use-of its engines, which were defective, whereby such combustibles wore ignited, and negligence in permitting the fire thus kindled to escape to the lands of an adjoining owner, and thence continuously to the plaintiff’s lands not abutting on the railroad, whereby the plaintiff’s fences, hay and meadows were destroyed, and that the plaintiff was without fault, is good on demurrer, though the distance to the plaintiff’s lands, the particular defects of the engines and the acts of negligence are not specified.</p> <p>Same. — To permit the accumulation of combustibles upon the plaintiff’s own lands, or lands between those and the railroad, is not negligence per se.</p> <p>Instructions. — -Practice.—Answers to Interrogatories. — Supreme Court. — Error in refusing proper instructions upon a point which, it appears by answers of the jury to interrogatories, was found/or the party complaining, is not available in the Supreme Court.</p>

<p>Pleading. — Statement of Claim Before Btmfl.jrfCoimnissioners. — In the statement of a claim to be allowed by a boarcKof county commissioners, enough must be alleged to show that the counijljs liable for the payment of the demand. v.</p> <p>Same. — Practice.—Amendment on Appeal. — Under the statute all claims against a county must he presented for allowance to the\hoard of commissioners. The remedy for refusal to allow is by appeal. The statement of the claim, if defective, may be amended on the appeal-</p> <p>Board oe Commissioners. — Township Trustee. — Physician for tli\Boor. — A township trustee may employ a physician for the poor of his township only in case of the failure of the county board to do so.</p> <p>Same. — Agency.—Burden of Proof. — The employment of a physiciamby a trustee to treat a poor person is not proof nor evidence of his riglri to make the employment. The failure of the county board to employ miist be shown before the trustee can act. Commissioners, etc., v. Holman, 3$ Ind. 256, distinguished.</p> <p>Same. — Power of Township Trustee. — When, by failure of the county board to employ a physician for the poor of a township, the power of the trustee arises, his decision in respect to a matter within his discretion is conclusive; but he can not, by assuming power, acquire it.</p> <p>Practice. — Bight of Trial by Jury when County a Party.— Change of Venue.— The court can not deny to a county defending against a claim a right of trial by jury because the claimant challenges the householders of the county as interested, and because the county refuses to ask a change of venue. Board, etc., v. Loeb, 68 Ind. 29, distinguished.</p>

<p>Contract. — Construction.—Set-Off.—■Mortgage.—Evidence of Contemporaneous Verbal Agreement. — A written contract was as follows : “ There is due to C. W. Colton thesumof $3,001.25, with interest at 0 per cent per annum from date. The above amount to be paid in such sums and to such parties as he may designate; $1,140.79 is to be retained” by the undersigned, “to protect them against a mortgage binding the flour-mill lease for the above amount.”</p> <p>Held, in an action thereon, that this was a promise to pay Colton or order, the beneficial interest being in him, and did not impose any obligation to discharge the mortgage.</p> <p>Held, also, that it was subject to set-off, as any other obligation to pay money.</p> <p>Held, also, that a contemporaneous verbal agreement to pay the mortgage was not admissible.</p> <p>Witness. — Malice.—Evidence that an adverse witness holds malice or ill-will against the party against whom he testifies is admissible, though he be a co-party, and his evidence tend to fix a liability upon himself.</p> <p>Practice. — Reopening Case. — Discretion of Court. — It is in the discretion of the court to permit additional evidence, after the evidence has been closed, and only in case of its abuse or injustice will the exercise of this discretion be reviewed.</p>

<p>Supreme Court. — Res Adjudícala. — Pleadin.g.—A complaint was held good by the Supreme Court on appeal, and the court below, obeying its mandate, then overruled a demurrer to it. On a subsequent appeal,</p> <p>Held, that the former decision, though erroneous, must be adhered to in that case, and an answer, which neither denied nor confessed and avoided the complaint, must be held bad on demurrer.</p>

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

<p>Telegraph Company. — Failure to Transmit Message. — Complaint.—Demurrer. —In a suit against a telegraph company to recover the penalty prescribed in section 4176, B. S. 1881, the complaint will be sufficient to withstand a demurrer thereto for the want of facts, if it show that the defendant is an electric telegraph company, with a line of wires wholly or partly in this State, and is engaged in telegraphing for the public, and that it has failed, during its usual office hours, upon the. payment or tender of its usual charge,'to receive from the plaintiff a despatch, and to transmit the same with impartiality and good faith, and in its proper order.</p> <p>Same. — Penal and Beneficial Statute. — Pule of Construction. — The statute, though penal, is beneficial to the public, and, while it may not be extended by construction, yet it ought to be fairly enforced.</p>

<p>Witnesses. — Competency.—In a suit by a guardian of an insane person against several for fraud practiced on the ward, the defendants wore not competent witnesses for each other, under the statute'of 1867, 2 R. S. 1876, p. 134.</p> <p>Evidence. — Insanity.—-Where the question of one’s sanity some years ago is involved, evidence as to his present sanity is immaterial.</p> <p>Same. — Declarations of Agent. — The acts and declarations of an agent concerning the business which he is at the time transacting for hi§ principal are proper evidence against the principal.</p> <p>Bide op Exceptions. — Evidence.—A bill of exceptions which declares that it contains all the evidence, but docs not contain written evidence which it shows was admitted, does not present any question in the Supreme Court as to the sufficiency of the evidence to sustain the verdict.</p>

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

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

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

<p>Redemption. — Mortgage.—Sheriff’s Sale. — One who has purchased mortgaged lands at a sheriff’s sale, if not made a party to a suit to foreclose brought before his right to a sheriff’s deed matures, may, after his title matures, redeem.</p> <p>Same. — Pleading.—Tender.—In ouch case the complaint to redeem need not aver a tender or offer to pay the money necessary to redeem; but it is sufficient, where an accounting of rents is also sought, to allege that the plaintiff is ready and willing to redeem when the amount necessary to be paid therefor shall be ascertained, and intends so to do, and that he has demanded an accounting which was refused.</p> <p>Same. — Sale of Lands in Solido. — Where a sheriff first offers separate tracts of lands on execution in parcels, and receives no bids, he may then offer and sell in solido.</p>

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

<p>Negligence. — Liability of Fellow Servant. — A servant is liable to his fellow servant for an injury resulting from his negligence.</p> <p>Same. — Pleading.—Where in a complaint for negligence it is necessary to negative contributory negligence on the part of the plaintiff, an averment that “the injury occurred without any fault” on his part is sufficient. ’</p> <p>Same. — Employer and Employee. — Obedience to a superior, who had a right to direct, by an inferior servant, whose duty was to obey, can not, as a question of pleading, be taken for negligence by the inferior, where it is also alleged that the latter was without fault.</p> <p>Default. — Practice.—Counter Affidavits. — Qn motion to set aside a default for excusable neglect, counter affidavits upon the question of excusable neglect are proper.</p> <p>Verdict. — Form.—A caption to a verdict, naming the parties, is surplus-age, and an error therein should be disregarded.</p>

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

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

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

<p>Fraud. — Replevin.—Demand.—A vendor may reclaim property obtained from him by fraud, and may maintain replevin therefor, unless the property has passed into the hands of a bona fide purchaser, and no demand is necessary before suit.</p> <p>Sam e. — Contract of Sale. — Tender.—Promissory Note. — Where there are two mens of the same name, and A. exchanges with B. a note with that name signed to it, for property, knowing that B. acts upon the belief that the signature is that of one who is wealthy, and A. knows this, and that it bears the signature of the other man of that name, A.’s silence is fraud, and B. may rescind the contract by tendering the note and demanding the property; and if refused may maintain replevin.</p> <p>Same. — Evidence.—Conversations.—Name. —Signature.—In such case evidence is admissible that there was but one person in the county bearing the name of the maker of the note, that he was wealthy, that the signature to the note resembled his, that B., in fact, believed the signature to be his, and that tlie real maker was A.’s brother, residing in another county. So, also, to show that A. know who made the note, his conversations with others as to the identity of the maker are admissible, though these conversations tend to show an attempt by him to perpetrate a like fraud on others.</p> <p>Sale. — Mistake.—Contract.—When both the seller and buyer believe the note given for the sale of property to be that of a certain person when it is really that of another, the contract of sale will be set aside for mistake.</p>

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

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

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

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

<p>Arbitration. — Presumption.—Award.—The adjustment of disputes by arbitration is favored by the law, and, therefore, every reasonable presumption will be indulged in support of an award.</p> <p>Same. — An error of judgment by the arbitrator will not vitiate his award.</p> <p>Same. — Pleading.—Misconduct of Arbitrator. — Evidence.—Partnership.-—Agent. —Partners, on dissolution, placed the assets in the hands of one mutually chosen, and by written agreement authorized him to collect all moneys due the firm and apply the assets in payment of its debts. They also-agreed that he should decide all disputes between them as partners, and that he should state an account between them, as such, with how much either ought to pay the other; and that his decision should be conclusive, and the amount awarded should be paid. Power was given him to examine the partners and other witnesses under oath as to any matter in dispute. He made an award in the mode provided, by stating an account in writing, showing a sum due from one partner to the other. In a suit on this award it was pleaded that he had refused to collect claims due the firm, which were solvent but had since become worthless, sufficient to have satisfied any sum' due from the defendant; and that he had refused to hear evidence which the defendant requested him to hear, and which he could produce, that would have proved that the defendant owed nothing.</p> <p>Held, that no neglect of his duty in his capacity as agent of both parties in collecting debts could affect the validity of his award as arbitrator.</p> <p>Held, also, that as the answer failed to show a refusal to hear any evidence-offered, or that the arbitrator was informed of the nature of it, and only its legal effect, instead of the evidence itself, was shown by the answer, it was bad on demurrer.</p> <p>Same. — Notice.—Demand.—In such case, neither notice of the award nor demand of payment need be averred or proved.</p> <p>Same. — Misconduct.—Partiality or favoritism of an arbitrator is misconduct for which his award may be sot aside; but it must be shown in what . it consisted, and that the complaining party was injured by it.</p> <p>Same. — Interest.—Whore, by an award, a liquidated amount is due and payable from the signing- of the award by the arbitrator, without notice or demand, in an action on the award, interest from its date may be recovered.</p>

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

<p>Pleading. — Sufficiency of Complaint. — Existing Cause of Action. — Arrest of Judgment. — Where the plaintiff’s complaint does not show an existing cause of action against the defendants, or either of them, at the time of the commencement of the suit, a motion in arrest of judgment ought to be sustained.</p> <p>Tease. — Determination of Rental Value.- — Complaint.—By the terms of a lease the rental value of the premises for the last five years of the term was to be determined by appraisers selected by the parties on a certain day of the year, “ or os soon thereafter as practicable.” Prior to that time the interest of II., one of the lessors, had been sold on foreclosure of a mortgage, in which suit a receiver had been appointed to collect the rent, H. in the meantime having become the president of the company of the lessee of the premises. Suit by the lessee to have the rental value determined, the complaint averring that the lessee did not know who then held the sheriff’s certificate — the year for redemption not having expired — nor who the real parties in interest were, and averring the inability of the parties to come to any binding agreement with reference to the rental value. It also showed a probability, amounting almost to a certainty, that within loss than a month after the rent for the first quarter of the last term would become due, the title to H.’s interest would become absolute in some one.</p> <p>Held, that the complaint showed that the time had not yet arrived for the determination of the rental value in the mode provided by the contract of the parties, because it showed that such mode was not then practicable, and that the complaint was therefore insufficient.</p>

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

<p>Decedents’ Estates.— Executor.— Pledging Trust Property. — Notice.—Ann executor or other trustee has no authority to use the assets in his hands as such, for his personal benefit, and one who takes from him with notice-acquires no right in equity.</p> <p>Same. — Promissory Note. — Assignor and Assignee. — Pleading.—-Ownership.—■ An executor, as such, assigned as collateral security to his own creditor a note payable to the testator. The complaint in a suit by the creditor against the maker showed this, and did not allege any right in the assignor other than thus appeared.</p> <p>Held, that the complaint was insufficient after verdict.</p> <p>Supreme Court. — Complaint.—The sufficiency of a complaint may be questioned in the Supreme Court, though a demurrer to it may have been, overruled and no exception taken.</p>

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

<p>IRedemption. — /Sheriff’s Sale. — Statute Construed. — There is no conflict between section 1 of the act of 1861, concerning redemptions from sales oi land by sheriffs, and section 2 of the act of 1879 on that subject, and, therefore, no repeal; and a redemption from a sale made before the latter took effect could be made afterwards by complying with the former.</p> <p>Same. — Redemption by Owner and. Creditor. — Section 7 of the act of 1879, requiring an affidavit showing the facts authorizing redemption, had no application to cases of redemption by the owner of the land, but only by judgment creditor or mortgagee.</p> <p>Same. — Sheriff’s Sale to Administrator. — Decedents’ Estates. — Collateral Attack, ■ — -An administrator, without an order of court, bid off lands, as administrator, at a sale by the sheriff to satisfy a judgment which he had obtained as administrator. Being afterwards removed, the sheriff’s deed, was made to his successor, on whose very informal petition (the heirs being parties and consenting) he sold the land by order of court. The court confirmed this sale and ordered a conveyance, which was made.</p> <p>Held,, that the purchaser obtained a title which could not be questioned collaterally by one from whom he sought to redeem.</p> <p>Held, also, that the purchaser, as owner, had a right, without affidavit, to redeem, under section 1 of the act of 1861, from a sale by the sheriff to satisfy a judgment lien senior to the judgment under which the first administrator purchased.</p>

<p>Decedents’ Estates. — Certificate of Parchase of Land — Petition to Sell and Assign. — Order of Court. — Collateral Attach. — A sheriff’s certificate of the sale of real estate, issued under section 2 of the redemption law of June 4th, 1861 (2 R. S. 1876, p. 220), is assignable by the holder there#, in the event of non-redemption, as well after as before the expiration of the year allowed by law for redemption; and where the holder of the certificate dies before such redemption and before the execution of the sheriff ’s deed, and the proper court, upon the petition of his administrator, has ordered him to sell and assign such certificate, and the same has been done accordingly, the proceedings are not void, even if erroneous, and can not be attacked collaterally.</p> <p>Same. — Final Settlement Report. — Objection to Confirmation. — Demurrer.—Assignment of Error. — The final report of an administrator in settlement of his decedent’s estate is not a complaint nor in the nature of a complaint. It is not the subject of demurrer, and an assignment of error that it does not state facts sufficient will present no question for decision. An objection to the confirmation of such report, upon the ground that the administrator has not collected debts due the estate, which does not show that the debts are collectible or the debtors solvent, is insufficient.</p>

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

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

<p>Bbidges. — JSfegligence.—County.—A county is liable for a failure to exercise ordinary care and skill in the construction of bridges upon the highways of the county, including the approaches thereto.</p> <p>Same. — Complaint.—A complaint in an action against a county for an injury resulting from the negligent failure of the county to put up railings at the approaches of a bridge, which shows that the county built the bridge, but fails to show that it was upon such highway, or at a place where tire county had authority to build it, is bad on demurrer.</p>

<p>Practice. — Striking Out Pleadings. — Evidence.—The refusal to strike out irrelevant or immaterial matter in pleadings or parts thereof is not available error. Evidence in proof thereof should be excluded on objection.</p> <p>Railroad. — Appropriation of Land, for Right of Way. — Compensation.—Eminent Domain. — A railroad can not take private property for right of way, against the owner’s wish, without first paying full compensation therefor.</p> <p>Same. — Payment to Clerk. — Title.—Ejectment.—License.—Statute Construed.— Appeal. — Supreme Court. — Judgment.—A railroad company proceeded to condemn a right of way, under the statute (R. S. 1881, sec. 3907), and, having paid to the clerk the damages assessed, took possession. The owner-appealed to the circuit court, where, on trial, the damages were greatly increased, and judgment rendered therefor. After six months, the judgment being unpaid, he brought ejectment.</p> <p>Meld, that he had a right to recover possession.</p> <p>Meld, also, that the payment made to the clerk did not vest title, but operated only to give a license to take possession, subject to the result of future litigation, determinable upon failure to pay the compensation found just on final trial.</p> <p>Meld, also, that prayer of appeal to the Supreme Court and an intention, to prosecute it did not disturb or suspend the final judgment for compensation.</p>

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

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

<p>Demurrer to Evidence. — Practice.—A demurrer to evidence excludes from consideration the evidence of the demurrant.</p> <p>Same. — Where a demurrer by the plaintiff to the evidence introduced by the defendant is framed upon the theory that the evidence thus demurred to, when taken in connection with the plaintiff’s evidence, constituted no defence, it should be overruled.</p> <p>Same. — Nexo Trial. — "Where there has been a demurrer to evidence, a motion for a new trial can not be entertained.</p> <p>Decedents’ Estates. — Promissory Note. — Pleading.—Evidence.—In an action against a decedent’s estate upon a written instrument, its execution by the decedent must be proved, though not denied under oath.</p>

<p>Growing Trees. — Parol Contract of Sale. — License.—Effect of Severance. — A parol contract for the sale of growing trees or standing timber is merely a license to tbe vendee to enter upon the vendor’s land for the purpose of severing and removing such trees and timber; and if such license be not revoked before the trees are severed, the title thereto will vest in the vendee, and thereafter the license will be coupled with an interest and irrevocable.</p> <p>Same. — Statute of Frauds. — Personal Defence. — Stranger to Contract. — A contract for the sale of growing trees or standing timber is a contract for the sale of an interest in land, and, if not in writing, under section 4904, R. S. 1881, one party can not enforce such contract against the other party; but the statute, as a defence, is strictly personal to the parties, and can not be made available by a stranger to the contract.</p> <p>Same. — Judgment Against Several Parties. — Available Error. — Súfreme Court.— Where it appears that a judgment against several parties is erroneous as to one of them, who has not appealed therefrom, such error will not be available to the other parties, and the Supremo Court will not reverse the judgment on account of such error, as to any of the parties.</p>

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

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

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

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

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

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

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

<p>Judgment. — Misprision.—Correction of Record. — Where it is shown, in a motion to correct the entry of a judgment of dismissal of an action as to a party thereto, that the order o'f dismissal was not intended or understood, by either party to include a dismissal of the cause of action against such party, the error being a clerical misprision, the entry may be corrected.</p>

<p>Pbactice. — Nunc pro tunc Entry. — Record.—Amotion for an entry nunc pro tunc requires no pleadings; nor can the sufficiency of the motion be tested by demurrer or motion to strike out.</p> <p>Same. — Parlies.—Attachment.—Bond.—Principal and Surety. — The only proper parties to a motion for an entry nunc pro tunc are the parties to the original cause, and if others be made parties thereto, as sureties on a bond given to release attached property, their rights will not be affected by a proper entry, and it is not error to refuse so to specify in the entry.</p>

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

<p>Telegraph Company. —Failure to Transmit Message. — Penalty.—Complaint. —Corporation.—A complaint against a telegraph company to recover the penalty fixed by statute, K. S. 1881, section 4176, which avers that the defendant was an electric telegraph company, doing business under the laws of this State, with a line of wire -partly within this State, and engaged in telegraphing for the public, and in transmitting telegraphic messages for hire, sufficiently shows that the defendant is subject to the statute.</p> <p>Same. — Contract.—A telegraph company can not avoid the penal liability imposed by statute for failure to transmit a message correctly, by a contract fixing its liability at a less sum.</p>

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

<p>From the Can-oil Circuit Court.</p>

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