Volume 9 — Indiana Appellate Court Reports

<p>Corporation. — Personal Liability of Stockholders. — When Enforceable. —Under section 5077, R. S. 1894, fixing the liability of stockholders of a corporation, there is, in laborers, no right to enforce the personal liability of stockholders, until some necessity therefor arises, such as the insolvency of the company or their failure to collect by legal process.</p> <p>¡Same. — Payment of Laborers’ Claims by Part of Shareholders. — Can not Enforce Contribution.— Voluntary Payment. — Where certain stockholders of a corporation voluntarily pay the wages of laborers of the corporation, such payments must be deemed voluntary, in the absence of any showing that there was, at the time of such payments, any necessity for resorting to them for such payments; and such shareholders can not enforce contribution therefor from the remaining shareholders.</p>

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

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

<p>Municipal Cobpoeation. — City.—Sidewalk— Gutter Grossing. — Dangerous Oondition. — Personal Injury. — Notice.—Damages.—Liability.— Where a city constructed an oval-shaped, iron gutter crossing 3x9 feet, in a public and much traveled street, the gutter crossing originally being perforated and creased, affording a secure foothold for passers-by, but by long use had become worn “smooth as a polished piece of wood, and very smooth, slick and slippery,” so that no safe foothold was presented by it, except for a short space at each end, of the character of which crossing the city had knowledge for ninety days before an accident causing serious injury to a passer-by who was walking “slowly and carefully” along, and slipped and fell upon the crossing, the dangerous condition of the crossing being the sole cause of the injury, the city is liable in damages to the injured party.</p> <p>Same. — Personal Injury. — Intervening Agency. — Snow.—Defective Sidewalk. — In such case, the presence of snow as an intervening agency is excluded by the finding of the jury; and the fact that many people had passed over the crossing in safety, can not override the showing made by the description of this particular crossing, that it was in itself dangerous.</p>

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

<p>Criminal Law. — Affidavit.—Jurat, Omission of Date in. — Effect.—Clerical Error. — Amendment of Pleading. — Presumption.—Where, in the jurat to an affidavit, made before a police judge, the year in which the same was subscribed and sworn to is given as “189 — ,” such omission was clearly a clerical error, which the judge might have corrected any time during the trial; and, on appeal, such amendment will be deemed to have been made. However, the jurat would not be invalid if no date whatever was written in it, as the officer’s act is sufficiently authenticated by his certificate of the performance of the same.</p> <p>Same. — Sabbath-Breaking.—Statute Construed. — “ Usual Avocation” Defined. — Sufficiency of Affidavit. — The phrase “usual avocation,” as used in the statute creating the crime of Sabbath-breaking, section 2000, R. S. 1881, is, by the manifest intention of the Legislature, equivalent to the term “vocation,” and an affidavit is sufficient which follows the language of the statute in that respect.</p> <p>Same. — Evidence.—Permitting to be Introduced After Close of Evidence and After Argument. — In a criminal action for Sabbath-breaking, it was not error for the court, after the evidence was closed and the argument made, to permit the State to introduce evidence of the fact that the defendant was a person over fourteen years of age, such fact being but a technical point of proof, opportunity being given the defendant to introduce proof on such point.</p> <p>Statutory Construction. — Intention of Legislature Bather than Strict Letter of Statute. — Courts are not bound to adopt such a construction of a statute as would lead to manifest absurdity, in order that the strict letter of the statute may be adhered to; but they will rather look to the intention of the Legislature, as gathered from the import of the whole act, and will carry out such intention, as thus obtained.</p> <p>Evidence.' — Personal Knowledge of Witness. — Presumption.—Where a party testifies to a fact, the presumption is that he testifies from personal knowledge; and, if the adverse party thinks otherwise, he is entitled to interrogate such witness on cross-examination, and if it should then appear that the witness testified without any knowledge upon the subject, the testimony should be rejected or striken out.</p>

<p>Criminal Law. — Intoxicating Liquors. — Selling Without License. — Sufficiency of Indictment. — An indictment for selling intoxicating liquor without a license, etc., is sufficient if it follows the language of the statute.</p> <p>Same. — Evidence.—Intoxicating Liquor.— General Course of Business.— Where the evidence, in an action for selling liquors without a license, etc., tends to show that such business was continuous, it is proper to show the general course of the business.</p> <p>Same. — Evidence.— Statutory Period of Two Tears. — In such case, where the prosecuting witness testified that he was at the fair held at-“this last fall,” and it appears that it was during this fair that he purchased the liquor, such evidence tends to show that the offense was committed within the statutory period of two years.</p> <p>Same. — Evidence Tending to Support Verdict. — Appellate Court Practice. —The appellate tribunal will not reverse a judgment in a criminal action where there is some evidence tending to support the verdict on every material point.</p>

<p>Criminal Law. — Profanity.—When Sufficiently Charged. — Where an affidavit charging the crime of profanity, confessedly sufficient in every other particular, avers that the defendant “did then and there unlawfully and profanely curse, swear, aver and imprecate, by and in the name of God,” etc., “by then and there unlawfully saying God damned,” such averments are sufficient, and do not charge more than one offense.</p>

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

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

<p>Surface Water. — Sight to Protect Against by Levees. — Overflow of Siver. — Sailroad.—It is the settled law of this State, that every person has the right to protect his own land by levees or embankment thereon, from surface water which would otherwise flow upon it from adjoining lands, so long as it does not interfere with any natural or prescriptive watercourse, and this right is possessed by a railroad company for the protection of its right of way, and the overflow caused by a river’s spreading beyond its banks in time of high water must be regarded and treated, in such case, as surface water.</p>

<p>Pbincipal and Agent. — Broker.—Procurement of Purchaser. — Commission. — Becovery of. — In an action by an agent for commission for procuring a purchaser for property, before there can be a recovery, the sale must be traced to the introduction of the purchaser to the owner by the agent; and if, after such introduction, and as a proximate result thereof, the owner makes the sale himself, either personally or by another agent, it will not exonerate such owner from the payment of commission to the agent who has initiated the negotiations; but if the causal connection between the introducing agent and the procurement of the sale be broken, such agent is not entitled to commission.</p>

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

<p>False Imprisonment. — Damages.—Becovery.—Presumption.—Inference_ —Province of Jury. — Mittimus.—Justice of the Peace. — Appellate Court Practice. — In an action for damages, on the bond of a justice of the peace, for illegal imprisonment on a mittimus issued by the justice, it appears that the mittimus bears date of August 21, 1889. The trial was begun on the same day, but the signature to the docket entry bears date of August 22,1889, the trial and judgment all appearing to be in one and the same entry. The oral testimony does not disclose when the judgment was entered and signed. The jury,- in answer to interrogatories, found that the judgment had been rendered at the time the mittimus was issued.</p> <p>Held, that on such state of the record and with the conflicting presumptions arising thereon, the jury were warranted in drawing the inference that the judgment was rendered before the mittimus was issued, and that, therefore, the appellate tribunal will not weigh the evidence or draw a contrary inference.</p> <p>Appellate Court Practice. — Fecovery. — Inference. — Evidence. —• Where there is no evidence to support the verdict of the jury, the appellate tribunal will reverse the judgment based thereon, but if the evidence is evenly balanced as to a material point in issue, the party having the onus can not recover, and if the jury or court may fairly and reasonably draw either of two inferences from the evidence, the appellate court will not undertake, to say which inference should be drawn.</p> <p>Harmless Error..- — Instructions to Jury — Finding.—In an action for damages for illegal commitment to jail, instructions defining the rights of the parties in the event the jury should find that the mittimus was. issued before the judgment was rendered, were rendered harmless, if erroneous, when the jury found that the judgment was rendered before the mittimus was issued.</p> <p>Ross, J., dissents.</p>

<p>Witness. — Competency. — Husband and Wife.- — Decedent’s Estate.— Waiver. — Where a wife is a party to a suit, and incompetent to testify in her own behalf, the adverse party may waive such incompetency and make her a witness in the case; but such waiver would not render her husband a competent witness in her behalf, his status being fixed by statute.</p>

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

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

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

<p>Promissory Note.— Condition Precedent. — Complaint.—Necessary Averments. — Waiver.—-In an action on a note payable on the performances of a condition precedent, the complaint must show a substantial performance of the condition, or a waiver thereof.</p> <p>Conclusions oe Law. — •Special Finding. — Commingling of Law and Fact. — A matter of fact found among the conclusions of law can not be considered for any purpose, and vice versa.</p> <p>Contract. — Condition Precedent. — Becovery.—Waiver.—Special Finding. — Where a promise to pay a sum of money is based upon the performance of a condition precedent, before the plaintiff can recover, there must be shown a substantial performance of the condition, or that the plaintiff waived the condition; and acts, to constitute a waiver, must have been performed with full knowledge that the condition had not been substantially performed, and where the finding is special, such fact must be specially found.</p> <p>"Verdict. — Amount of Beeovery. — Money Judgment. — Where a money judgment only is recoverable, the verdict or finding, whether it be special or general, must determine the amount of recovery, or find such facts as leave nothing for the court to do except to make a mere mathematical calculation.</p>

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

<p>Master and Servant. — Railroad.—Personal Injury of Servant. — Assumption of Risk. — Latent' Defect. — Equal Opportunities to Know of. — Degrees of Care. — If a servant is injured by reason of latent defects in appliances furnished him, the master and servant are not upon an equality. The duty resting upon them is different, and the acts required of them to constitute diligence with reference to the discovery of the defect are different. It can not, therefore, be said, in such a case, that the servant assumed the risk because his opportunties to observe the defect were equal to those of the master, unless the duties of the servant are such as to require an inspection by him.</p>

<p>Bill oeExceptions. — General.—Special.—Record.—Deposition, Motion to Strike Out. — Quaere, where the record does not show that any time was asked, or leave granted, in which to file a bill of exceptions to the ruling of the court on a motion to strike out part of a deposition, can such motion and ruling be carried into the record by a general bill of exceptions filed pursuant to leave granted at a subsequent term of court?</p> <p>Evidence. — Motion to Strike Out, When Too General. — A. motion to strike out evidence “for the reason that it is incompetent,” is too general to raise any question.</p> <p>Same. — Price-List.—When Admissible. — Action for Value of Goods. — In an action to recover the value of a car load of lumber, in which it was contended that the plaintiff sold the lumber to defendants according to the terms set forth in plaintiff’s price-list of the material, and there was evidence tending to show that defendants had received such price-list before they ordered the lumber, the price-list is admissible in evidence as tending to show the terms of the contract, there being nothing in the order in regard to the price of the lumber.</p> <p>Same. — Letter.—Answer to. — Where a letter has been introduced and read in evidence, a letter in answer thereto is also admissible.</p> <p>Contract. — Price.—No Agreement as to. — Fair Market Value at Place of Delivery. — Where the uncontroverted facts show that A., of Fort Wayne, Ind., ordered a car load of lumber of B., a wholesale dealer at Little Rock, Ark., the lumber being, at the time, in B.’s lumber yard at Little Rock, to be loaded on a car, delivered to the carrier, and from there dispatched to A., at Biuffton, Ind., the price of the lumber was the fair market value on board the car at Little Rock, where no price was agreed upon.</p> <p>Opinion on petition for rehearing by Davis, C. J.</p>

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

<p>Pleading. — Answer, Amendment to. — Sufficiency After Amendment.— Banks and Banking. — Forgery.— Township Order. — Notice.—In an action by a bank at C. against a bank at L. to recover money paid by it on account of a forged township order, the defendant having answered that it purchased the order from the payee for a valuable consideration, in good faith, after a proper identification, and forwarded it for collection and received the money without any knowledge or information that the instrument was not genuine, the trustee’s handwriting being entirely unknown to it, and a demurrer having been sustained to such answer, the defendant amended by adding that on the 4th day of January, 1884 (the dBy of its maturity and payment), the payee of the warrant . was living in Lafayette, and had $2,000 of money and property from which the warrant could and would have been collected, but that before January 31, 1884 (the time of the discovery and notice of the fraud), he had left the State for parts unknown, taking with him all his property, and that by reason of appellee’s failure to give appellant immediate notice that such order was a forgery, the money was lost, — the amendment to the answer did not make it sufficient, as it fails to show that either the payee or his property was within reach of any process after a reasonable time had elapsed for the discovery of the forgery.</p>

<p>Appellate Coubt Peactioe. — Appeal.—Dismissal of. — Supersedeas Brief. — Sufficiency of. — Filing.—Where a supersedeas brief is sufficient to bring it within the requirements of rule 25 of the Appellate Court, containing several propositions relied upon for reversal, supported by argument and authority, and also a concise statement of the facts, and the transcript being properly referred to, such brief is sufficient to prevent a dismissal under rule 19 of this court, and the appellant has the right to afterwards file more extended and elaborate briefs.</p>

<p>Bailroad. — Damages to Land by Fire. — Negligence.—Sufficiency of Complaint. — Proximate Cause. — Spark Arresters.- — Iman action against a railroad company lor damages caused by fire being communicated to plaintiff’s lands, the complaint alleged, among other things, that on the 29th day of October, 1891, the premises of A, were fired from sparks and coals of fire emitted from a passing locomotive on said railroad, belonging to defendant, and that defendant, in running said locomotive over said railroad, carelessly and negligently omitted to provide said locomotive with sufficient and proper spark arresters, and carelessly and negligently permitted the spark arresters used in said locomotive to become defective and full of holes, so that the same would not prevent the emission of large and dangerous sparks and coals of fire from said engine; and that without plaintiff’s fault said coals of fire, so emitted from said locomotive, set fire to the premises of A., and without plaintiff’s fault said'fire spread and communicated to plaintiff s lands, etc., to his damage, etc. Held, that the complaint does not state a cause of action, the only negligence charged being in relation to the spark arresters, and the spark arresters not being shown to have been the proximate cause of the injury.</p>

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

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

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

<p>Municipal Cobpobation. — City.—Power to Make Contracts. — Liability for Preach of. — Lighting of Streets. — Employes.—A city has the power to operate a plant of its own for the purpose of lighting its streets, and consequently it has the power to purchase all the materials, and employ all the labor necessary for carrying it on. The right to employ labor, etc., is amongthe general discretionary powers, which are not subject to judicial control except in cases of fraud, or where it is shown that such discretion has been grossly abused to the detriment of public interests; and such contracts, when they do not come within these exceptions, will be upheld.</p>

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

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

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

<p>Superior Court. — Appeal From Special to General Term. — Bill of Exceptions. — Filing After Submission of Cause. — A superior court may, in general term, on appeal from special term, receive and act upon a bill of exceptions, and take judicial notice of the same, when such bill is filed within the time granted by the trial judge, although the bill has been filed after errors have been assigned and the cause submitted.</p> <p>Bill op Exceptions. — Certification that the Bill Contains all the Evidence. — When Sufficient. — The expression “This was all the evidence given [in] said cause,” at the close of the evidence in a bill of exceptions, is a substantial compliance with the law, and is sufficient.</p> <p>Same. — Evidence Sufficiently Incorporated if Given in Substance. — Irresponsive Answers. — If the testimony be given in substance in a bill of exceptions, it is all that is required, and the questions propounded need not be set forth. Where answers are made that are not responsive to questions, the answer will not, on that account, be disregarded, in the absence of objection or motion to strike out.</p> <p>Work and Labor.— The Eight-Sour Law. — Pay for Extra Time.— When Collectible. — Under the act of March the 6th, 1889, constituting eight hours a day’s work for certain classes of laborers, any such laborer can not, without an agreement (express or implied) for pay for extra time, hold the master responsible therefor, especially after the servant has received his wages as agreed upon in the contract of hire.</p>

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

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

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

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

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

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

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

<p>Evidence. — Objections to, How Made. — ■Appellate Court Practice. — Particular objections to the admission of evidence must be made with reasonable certainty, otherwise no question as to its admissibility will be presented on appeal.</p>

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

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

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

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

<p>Contract.— Sale. — Warranty.—Rescission of Contract.— Recovery of Purchase-Money. — Return of Property. — Answer of Failure of Consideration. — Vendor and Vendee. — The rule that where property has been unconditionally sold, with a warranty, the purchaser can not, in the absence of fraud, because of the breach of the warranty, and without the consent of the seller, rescind the contract and recover back the purchase-money paid, does not apply where the vendor has agreed to take the property back and cancel the notes in case the property fails to fulfill the warranty, and in such case, the vendee having offered to return the property, and the vendor having refused to accept it, the vendees were excused from making a specific tender of the same to the vendor. In such case, in an action for the purchase-money, the vendees may set up, by way of answer, a failure of consideration.</p> <p>Vendor and Vendee. — Contract of Sale.— Written and Parol Warranties. —Notice.—If vendees, purchasers of a threshing machine, before they accepted the same, and before they executed notes in payment of the purchase-price, tested the separator, and found that it did not work, and refused to take it and to execute notes therefor, and then the vendor undertook to place the machine in good working order, and, after an attempt to do so, informed the vendees that the machine was now in good working condition, and warranted it to perform good work, and upon the strength of this assurance the vendees executed notes therefor, relying upon the parol warranty, the warranty was valid, and under it the vendees were not required to give written notice, as stipulated in the previous written contract of warranty; and the vendor having acted upon the notice received, the failure to give written notice, even if required, does not debar the vendees from the benefits of the warranty.</p> <p>Pleading. — Warranty ¡Breach of.■ — flow Pleaded. — In pleading a breach of warranty, it is sufficient, generally, to plead the results of defects rather than the defects which caused the results.</p> <p>Same. — Defense.—Answer.— Counterclaim. — Contract, Stipulation in as to Defense. — Where it is stipulated in a contract of sale, that no action for a breach of the warranty, and no claim for recoupment of damages shall be made after the expiration of one year, such stipulation can be made available only to a counterclaim, and not to any defense in bar of a suit upon the contract.</p> <p>Same. — Promissory Note.— Want of Consideration, flow Pleaded. — In an action on a promissory note, it is always proper to plead in general terms the defense of total failure of consideration.</p> <p>Same. — Cross-Gomplaint.—Parties Plaintiff. — A cross-complaint must be good as to all the cross-complainants, or it will be good as to none.</p> <p>Principal and Surety. — Defenses.—Practice.—-Sureties may avail themselves of all defenses to which their principals are entitled.</p> <p>Record. — Exhibit.—Deferred to by Separate Pleadings. — One Gopy Sufficient. — Where an exhibit is referred to in the same manner in separate pleadings in the same cause, one copy of such exhibit in the record is sufficient.</p> <p>Verdict. — Sustained by the Evidence. — That the evidence is sufficient to sustain the verdict, see opinion.</p> <p>Promissory Note. — Agents of Vendor as Sureties on Vendee's Note.— Extent of Liability. — Complaint.—Da. an action on a promissory note given in payment of the purchase-price of machinery, which the vendor’s agents had signed as joint makers or sureties, it was not error to refuse to instruct the jury, that the defendants, the said agents, would be personally liable on the note in suit in the event they failed to discharge certain duties enjoined upon them under their contract of agency with the plaintiff. The case made against such defendants, in the complaint, being that of joint makers or sureties, they could only be held liable to that extent.</p> <p>Instruction to Jury. — Warranty.—Estoppel.—Where an instruction in an action on a promissory note given in payment of the purchase-price of a machine assumes that the only warranty which it is proper for the jury to consider is the written one filed with the pleadings, and charges the jury that the defendants were estopped to claim damages by way of counterclaim, because of the stipulation contained in the written warranty that all liability upon the same ceased with the expiration of the year within which the sale was made, according to stipulation in the written warranty, — it was not error to refuse to give such instruction where the defendants rely upon a parol warranty of which there is some evidence.</p> <p>Same. — Promissory Note. — Assuming Obligation of Payer. — Extent of Liability. — Notice.—Where an instruction proceeds upon the theory that A. would be liable on the note in suit in any event, inasmuch as he knew, or with reasonable care might have known, before he took the place of B. as payer of the note, that the machine, for which the note was given in part payment of the purchase-price, was defective, for which reason he could not reap the benefits of the warranty, — it was not error to refuse to give such instruction, because there was no evidence that A. assumed any obligations beyond the scope of those resting upon the original purchasers.</p> <p>Evidence. — Promissory Note. — Assignment.—Knowledge of by Payer.— In an action on a promissory note, one of the payers of the note was permitted to testify that he first learned in 1892, that the note in suit, and other notes given for the machine, had been transferred. Such testimony could not have injured the plaintiff, in view of the fact that evidence had already been introduced, without objection so far as disclosed in appellant’s brief, that such notes had been assigned by appellant (plaintiff below) to a bank before maturity, and had been transferred back before maturity.</p>

<p>Assignment oe Errors. — Conjunctive Assignment. — Appellate Court Practice. — Where errors as to the giving of instructions are assigned conjunctively, the assignment must be good as to all, or fail entirely.</p> <p>Instructions to Jury. — Must be Signed by the Party Asking the Same or Sis Attorney. — -A refusal to give instructions at the request of a party is not error where the instructions asked and refused are not signed by the party asking the same, or his attorney.</p> <p>Verdict. — Appellate Court Practice. — Evidence.-—The appellate tribunal will not disturb a verdict where the evidence is conflicting, and there is evidence sufficient to sustain it.</p>

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

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

<p>Criminal Law. — Assault.—What Constitutes. — Pistol.— If a person standing on the opposite side of even a very narrow street from another, points an unloaded pistol, or a pistol not shown by the evidence to have been loaded, at the other, and threatens to use it upon him, he is not guilty of the crime of assault, the element of present ability being absent.</p>

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

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

<p>Tobt. — Complaint, Sufficiency of. — Conspiracy, When not the Gravamen of the Action. — Where, in an action for damages, a conspiracy is alleged to have been formed to commit an act, which, if done by one alone, would be an actionable wrong, or where the conspiracy charged is not, by law, a crime, then conspiracy is not the gravamen of the action, and the tort, for the accomplishment of which the conspiracy was formed, must be well pleaded before the complaint can repel a demurrer.</p>

<p>Judgment. — JReversal.— Verdict Correct on the Evidence. — Appellate Court Practice. — Where the verdict is correct on the evidence, the judgment will not he reversed upon an erroneous instruction.</p>

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

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

<p>Municipal Cobpobation. — Oity.—Appropriation of Land for Street.— Liability of Oity for Damages. — While it is the duty of city commissioners to consider and determine what part of the expenses incurred in opening a street ought to be paid out of the general fund of the city, and to designate the same in their report, yet if the common council receives and approves the report without such part being designated, and orders the taking of the property for street purposes, the city thereby undertakes the payment of all damages and expenses in excess of the benefits assessed, and the land-owner is immediately entitled to the same.</p> <p>Same. — Same.—When Bights Become Vested. — Bight to Discontinue Proceedings. — In such case, where the report of the city commissioners is accepted and acted upon by the common council, and the land is ordered sold, the appropriation is consummated, except the payment of damages, and the rights of the parties become vested, and the proceedings can not thereafter be discontinued.</p>

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

<p>Appellate Court Practice. — Questions Depending on the Weight of the Evidence. — The appellate tribunal will not determine questions arising on the weight of the evidence.</p>

<p>Demurrer. — Sufficiency of. — Overruling of. — Ambiguity.—Where a demurrer is of the following tenor: “The defendant herein demurs generally to the plaintiff’s complaint, and to each paragraph thereof separately, and for cause of demurrer says that the same does not state facts sufficient to constitute a cause of action against this defendant,” such demurrer is ambiguous, and there was no error committed in overruling the same.</p> <p>Same.— Construction of. — Statute Construed. — Pleading.-—The provisions of section 379, E. S. 1894, relating to the construction of pleadings, do not apply to demurrers.</p> <p>Evidence. — Malpractice.—Intoxication.—Bes Q-estm. — In an action for malpractice, evidence as to whether the defendant was intoxicated when he performed the services complained of is admissible as part of the res gestae.</p>

<p>„ Contributory Negligence. — Action ly Parent for Death of Child.— When Child is a Bui Juris.— Complaint, Sufficiency of. — Law and Fact. —Care.'—Presumption.—In an action by a father for damages for the death of his child which was nine years of age, the general averment in the complaint that the parents were free from contributory fault does not include the averment that the child was also free from contributing thereto; and in the complaint, in such case, it was necessary to aver that the injury from which the child’s death resulted was not caused by any fault on its part; for it can not be conclusively presumed as a matter of law, of a child of such age, that it is incapable of contributory negligence, and as some degree of care may be required of a child of such age, the degree of care in a given case is a question of fact for the jury.</p>

<p>Parties. — City.—Action to Enforce Sewer Assessment Lien. — Eailroad, —In an action by a contractor for the enforcement of certain sewer assessment liens against a railroad company’s right of way and depot lot, the city in which such property is situated having no interest or concern in the question in dispute, there was no error in overruling the defendant’s petition to make the city a party to the action.</p> <p>Evidence. — City Council Proceedings. — Sewer Assessment. — Appearance. —Waiver.—In an action to enforce a sewer assessment lien, it was not error to admit in evidence, over defendant’s objection, because of certain descriptions therein and misnomer of defendant, the transcript of the proceedings of the city council upon which the alleged lien was predicated, where it appears that during the proceedings before the council, which resulted in the assessment of benefits, for which the lien is sought to be enforced, and before the same were finally settled and confirmed upon the report of the civil engineer, the defendant, by its attorneys, made a full appearance to the proceedings and filed a remonstrance, no objection then being offered to the description and alleged misnomer; such facts constituting a waiver of the objection, even if it ever had any merits.</p> <p>Same. — Abbreviations Explainable by Parol Evidence. — If abbreviations are used in making a ditch assessment, they may be explained by parol evidence, the explanations not being inconsistent with the written terms.</p> <p>Judgment. — Objection to, How Taken. — Motion to Modify. — Assignment of Error. — Practice.—Where objection is made to the form of the judgment merely, such objection must be made in the trial court by a motion to modify, and, if overruled, error must be predicated upon the ruling, a general objection to a judgment not being sufficient.</p> <p>Same. — Bailroad.—Bight of Way and Depot Lot, Foreclosure of Sewer Lien on. — Personal Judgment. — In an action to enforce a sewer assessment lien against the right of way and depot lot of a rail road company, the court may, in addition to a decree foreclosing the lien, render a personal judgment against the company, which may be satisfied by levy and sale, upon execution, of any of its personal property subject thereto, provided the company does not appear to be insolvent.</p> <p>Dissenting opinion by Boss, J.</p>

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

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

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

<p>Special Finding. — Bequest for. — When Sufficiently Appears. — A special finding must appear to have been requested by one or both the parties, in order that it may be regarded as, and have the legal effect of, a special finding. And where it appears from the finding that “The court, having been requested to find the facts specially, makes the following finding of facts in this cause and conclusions of law thereon,” it sufficiently appears that the findings were requested by one or both of the parties to the action.</p> <p>Mechanic’s Lien. — Special Binding. — Sale of Material for a Specific Purpose.- — Becovery.—Where the special findings in amechanic’s lien case simply show that the materials were purchased for, and used in, the building, it does not necessarily follow that they were sold to be used for that purpose, and without a finding of such á sale, there can be no recovery.</p> <p>Opinion on petition for rehearing by Gavin, J.</p>

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

<p>Conversion. — Bight of Action in Mortgagee Against Mortgagor for Conversion of Mortgaged Property. — Sufficiency of Complaint. — Mortgage Improper Exhibit. — The mortgagee of a chattel mortgage sued the mortgagor to recover the value of the mortgaged property alleged to have been converted by him to his own use. The complaint does not directly allege that the plaintiff (mortgagee) is the owner of the property alleged to have been converted, or that he is entitled to its possession, but his rights thereto are alleged to be under the chattel mortgage executed to him by defendant, a copy of which is made an exhibit to the complaint.</p> <p>Held, that the mortgage is not a proper exhibit, it not being the basis of the action, and can not be looked to in determining the sufficiency of the complaint; and as there are no allegations in the complaint showing that the right of possession of the mortgaged chattels remained in the mortgagor, it must be presumed that the mortgagee was entitled to their possession, notwithstanding the mortgage provides that the mortgagor should retain possession of the mortgaged property.</p> <p>Same. — Failure of Proof on Part of Plaintiff. — Proprietary Bight. — Becovery. — Mortgage.—In such case, where the evidence wholly fails to show that the plaintiff (mortgagee) either owned or was entitled to the possession of the property alleged to have been converted, no proprietary right being shown in the plaintiff, there could be no conversion by the defendant,' the mortgagor.</p>

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

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

<p>Contbibutoby Negligence. — Remaining Upon Platform of Street Railway Gar. — Negligence Per Se. — It is not contributory negligence per se for a passenger to remain upon the platform of a street railway car.</p> <p>Appellate Coubt Pbactice. — Conflicting Evidence. — ■Verdict.—Where the evidence is conflicting, the appellate tribunal will not weigh it, nor disturb the verdict.</p>

<p>Pleading. — Complaint, Sufficiency of. — Sewer Assessment Lien. — Board of Public Works. — In an action to enforce a sewer assessment lien, it is not necessary to allege the proper appointment or qualifications of the board of public works, or the adoption of rules for the conduct of their business and notice thereof, as required by statute.</p> <p>Same. — Same.—-Sewer.—Improvement, Where Made. — In such action, where the complaint describes the property assessed as being in “Milligan’s Brook Park Addition to the city of Indianapolis,” and in an exhibit it appears that the proposed improvement is to be made “in said city,” the city of Indianapolis being mentioned in the preceding line, the allegations sufficiently show the improvement to have been made within the city of Indianapolis.</p> <p>Same. — Complaint, Necessary Averments. — Sewer Assessment. — Matter of Defense. — Whatever benefit a defendant, in an action to foreclose a sewer assessment, lien, might derive from the last sentence in section 3846, R. S. 1894, could be available only by way of defense, and need not be negatived in the complaint.</p> <p>Notice. — Street Improvements. — Sewer.— Statute Construed. — Sections 3836 and 3841, R. S. 1894, relating to notice of assessment and demand in condemnation proceedings, are not applicable as to the notice required in street improvements.</p>

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

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

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

<p>Evidence. —Results of Tests or Experiments. — Personal Injury.— Where evidence is offered to prove the results of a test or experiment as to the cause of an injury, it is not error to exclude such testimony if there has been a failure to show, or offer to show, that the test or experiment was made under substantially the same conditions as existed at the time the injury occurred.</p> <p>Same. — Incompetent Testimony. — Motion to Strike Out. — If testimony is partly competent and partly incompetent, before any question can be saved thereto, a motion must be made to strike out the incompetent testimony, and that part only.</p> <p>Same. — Motion to Strike Out, When Too Late. — Where evidence is admitted without objection, a subsequent motion to strike out comes too late.</p> <p>Same. — Objection to. — Specific.—Objection to the admissibility of evidence should be specific.</p> <p>Instruction to Jury. — Master and Servant. — Risks Incident to Service. —Presumption.—Burden of Proof. — The court refused to give the following instruction: “Among the risks assumed by the employe is that arising out of the negligence of a coemploye engaged in the same service. The railroad company is presumed to have discharged its duty to its employe; and when an employe brings an action to recover damages for an injury received in the service of the company, the burden is on the employe to overcome this presumption.” Such refusal was not error, where the jury were instructed generally that the plaintiff must prove the material allegations of his complaint.</p> <p>Master and Servant. — Incompetent Goemploye, Liability of Master for. —Duty of Master. — Notice.—-If the master finds it necessary, as he may, at times, to employ and retain incompetent servants, he should either inform their coemployes of that fact, or give them a reasonable opportunity to acquire knowledge of such fact, before he can screen himself from the consequences of such incompetency.</p> <p>Misconduct op Counsel. — Question, How Saved. — Before any question as to misconduct of counsel during the progress of the trial can be saved, the court must be requested to correct the injury done, and if the court refuses to correct the injury, the complaining party must except thereto.</p> <p>Verdict. — Sufficiency of Evidence. — That the evidence is sufficient to sustain the verdict, see opinion.</p>

<p>Streets and Alleys. — Improvement.—Vicinity.—Assessment of Benefits. — Law and Facts. — Whether land situated 3,200 feet or more from a proposed street improvement would be specially benefited by the improvement, and whether the land was in the vicinity of such improvement, are proper questions to be submitted to the jury; and the court can not say, as a matter of law, that the distance given is too remote for the- land to be specially benefited or to be in the vicinity of the improvement.</p> <p>Same. — Improvement.—•Special Benefits. — Meaning of. — In such case, the fact that other or all property on the street or its extension is equally benefited by such improvement, will not take the land in controversy out of the category of special benefits.</p> <p>Instructions to Jury. — Conjunctive Assignment. — When Unavailable.— Where the giving of several instructions is assigned collectively as error in a motion for a new trial, such assignment will be unavailable if any of such instructions is sufficient.</p> <p>Evidence.— Objection to, When too Broad. — If the objection to the admission of evidence is so broad as to include competent evidence, it is not error to overrule the objection.</p>

<p>Decedent’s Estate. — JRemoval of Administrator. — Change of Venue.— Where an application is made to remove an administrator, the party making the application is not entitled to a change of venue from the judge.</p> <p>Same. — Administrator.— Unlawful Claim for Expenses of Appeal and Interest. — An administrator is not entitled to interest on his claim for services, nor to expenses of appeal, during the pendency of the action and appeal, where the case is one to remove the administrator and compel an accounting.</p>

<p>Justice oe the Peace. — Amendment of Complaint so as to Givethe Justice Jurisdiction.— Cases Distinguished. — A plaintiff in an action before a justice of the peace may, by leave of the court, amend his complaint so as to bring the amount within the justice’s jurisdiction. Kiphart v. Brennemen, 25 Ind. 152, Goodwine v. Barnett, 2 Ind. App. 16, and Caffrey v. Dudgeon, 38 Ind. 512, distinguished.</p> <p>Evidence. — Documents.— Admissibility . — Appellate Court Practice-Question, Bow Presented. — Before the appellate tribunal can pass upon the admissibility of documentary evidence, such evidence must be brought before such tribunal; nor can the statement of counsel, made to the court at the time of offering the evidence, supply the lack of the papers themselves.</p> <p>Opinion on petition for rehearing by Gavin, J.</p>

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

<p>Evidence. — Where the evidence is not in the record, and there is nothing to show whether or not the instructions are applicable or relevant to the evidence, the case will not be reversed on the instructions, if, under any supposable case, the instructions might have been proper.</p>

<p>Pleading.— Complaint. — False Representations. — Cause of Action. — In an action for damages arising from false representations, it must be made to appear in the complaint that the plaintiff was misled thereby, and that the representations which are chargéd to have been false were made for the purpose of deceiving or defrauding the plaintiff, else he has no cause of action.</p>

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

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

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

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

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

<p>Municipal Corporation. — Gity.—Street Improvements, eta.— Vested Sights. — Seport of Gity Commissioners. — Common Council. — When the report of the city commissioners, in a proceeding to open, extend and improve a street, has been accepted and approved by the common council, the rights of parties became vested.</p> <p>Pleading. — Complaint, Sufficiency of. — Damages.—Condemnation Proceedings. — Party in Interest.— City. — Where a complaint, in an action to recover damages awarded in a condemnation proceeding, alleged that by the report of the city commissioners the real estate so taken was reported to belong to plaintiff and her husband, who had been dead for over eighteen years, which fact was well known to said city commissioners and said city council; and that plaintiff was then, and for over twenty years prior thereto had been, in the open, notorious, and exclusive possession of said real estate, as the owner thereof, which facts were fully known to the city commissioners,— the allegations show such an interest in the property appropriated as to entitle plaintiff to recover damages therefor.</p>

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

<p>Pleading. — Sufficiency of Complaint. — ■False Representations. — Fraud. —Real Estate. — Barter.—In an action for damages for false representations, the' complaint alleged, in substance, that the plaintiff bartered a stock of drugs for the same; that.the owner of the land, to induce plaintiff to make the barter, represented the land to be well located, well adapted to farming purposes, that the soil was good and very fertile, that fifty acres thereof were in a high state of cultivation, except a small amount of meadow land, that it was well and securely fenced, contained valuable timber, was well improved, and was of the value of §30 per acre; that plaintiff was a practicing physician at the time the representations were made, and could not, on account of his practice, examine said real estate, and did not have any person to act for him to examine the premises, and that he was compelled to, and did, rely wholly upon the statements of the defendant, as to the kind, character, condition, value and location of the land; that all of such representations were false and made for the purpose of deceiving and defrauding plaintiff (specifically negativing the above representations), and that on account of such fraud, plaintiff has been damaged, etc.</p> <p>Held, that the complaint states a cause of action.</p> <p>Dissenting opinion by Reinhakd, J.</p>

<p>Cbiminai Law. — Township Trustee. — Creating Township Indebtedness in Illegal Manner. — Defense.—To an indictment against a township trustee for the unlawful creation of a debt on behalf of the township, by giving the written obligation of such township, without having first procured the order of the board of commissioners, the defendant can not interpose the defense that the township is not liable up^n the certificate alone, and thus take advantage of his own wrong, after doing all in his power to create the indebtedness, by asserting that the law will not permit the township to suffer from his illegal act.</p> <p>Same. — Township Trustee. — Indictment.—Indebtedness.—In such case, the indictment need not state for what the debt was created, or for what the obligation of the township was given, such being matter of evidence.</p> <p>Same. — Evidence.—Township Indebtedness.- — -Nature of. — Necessity for. —In such case, it is competent to show what the indebtedness was created for, and the necessity therefor.</p> <p>Same.' — Evidence.—Certificate of Indebtedness. — In such case, the certificate of indebtedness set forth in the indictment was admissible in evidence as tending to prove the act charged; a similar certificate for §300, shown to have been executed by defendant on the same day, was also admissible as tending to prove the indebtedness of the township.</p>

<p>Railroad. — Private Crossing. — Written Agreement to Make, Construction of. — Cattle Guards. — Wing Pences. — Gates.—Where a railroad company has agreed, in writing, in consideration of the grant of the right of way, to construct a crossing; and did, in pursuance of the agreement, construct a farm crossing, of which cattle guards and wing fences were an essential part, the company is not in a position to claim that the mere construction of such crossing was a full and final compliance with the terms of the contract, and that having so complied therewith, the company has the right, after maintaining the same for many years, to remove the cattle guards and wing fences without the consent of the land owner, and to erect in lieu thereof gates in the right of way fences, and thenceforth, without notice to the land owner, to rely on him or his tenant to maintain, and keep the gates in repair.</p> <p>Same. — Private Crossing. — Damages.—Defense.—In an action for damages for failure of a railroad company to properly maintain a private crossing according to contract, it is no answer to say that the plaintiff might have performed the duty incumbent on the company, and ■ thus have prevented or lessened the damages.</p> <p>Same. — Private Crossing. — Duty of Land Owner to Maintain. — Where a private railroad crossing is constructed under and pursuant to the terms of a contract, with wing fences and cattle guards, there is no duty devolving on the land owner, by statute, to maintain it.</p> <p>Contract. — Construction by Parties Thereto. — If parties, by their acts, have given a construction to a contract entered into by them, the courts will adopt and enforce that construction.</p>

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

<p>Notice. — Sufficiency of Complaint as to. — City.—Defective Street. — In an action against a city for injuries received from a defect in a street the complaint averred that the excavation was in existence on the 10th day of November, 1890, and that the injury was sustained on the 14th of the same month. Such allegations are sufficient to impute knowledge to the city.</p> <p>Appelbate Court Practice.' — Judgment.—Sufficiencg of Evidence. — A judgment will not be disturbed on the evidence, where it is conflicting, but finds every fact necessary to support the judgment. Evidence. — Personal Injury. — Character and Extent of Injury.— Within Issues. — In an action for personal injuries, wherein it is alleged that plaintiff wan greatly injured in his limbs and abdomen, as well as shocking Ms nervous system, etc., it was not error to permit plaintiff to testify in his own behalf, that since his injury he had a weakness in his back, and a pain in his back similar to pains suffered by him for several years prior to the injury, which pains, since the injury, were much aggravated in character and extent, requiring the almost constant use of porous plasters.</p> <p>Verdict. — Defective.— IIoui Corrected.— A defective verdict may be corrected at any time before the jury is discharged, and the proper method of correcting such a verdict is to require the jury to return to their room under proper instructions from the court as to the correction which ought to be made.</p>

<p>Decedent’s Estate. — Olaim.—Promissory Note. — Execution.—Burden of Proof. — Where a promissory note is filed as a claim against a decedent’s estate and is transferred to the issue docket, the general denial interposed by the law negatives the execution of the note, and the burden of establishing its execution rests upon the claimant-.</p> <p>Peomissoky Note. — Execution, Manner of. — Signature.-—Instruction to Jury. — If the court instruct the jury, in an action on a promissory noto, that the note could only be executed by the maker signing it, or by touching the pen in the hand of the person signing his name for him, such instruction is erroneous.</p> <p>Opinion on petition for rehearing by Boss, J.</p> <p>Davis, O. J., and Gavin, J., concur in the result.</p>

<p>Pleading. — Complaint, Sufficiency of. — Breach of Contract. — Basement. —Bight of Way. — Damages.—A complaint setting forth the facts that the plaintiff purchased of the defendant a certain tract of land, a 1 art consideration for the purchase being that defendant, according to written agreement made a part of the complaint, which was never recorded, would give plaintiff a right of way over his land, which defendant did, which, after being used and traveled for several years, fell into disuse and ceased to be traveled, and the track thereof became partly obliterated and cultivated, so as not to be notice to purchasers, of the existence of a way; that, while the way was in such condition, defendant sold the land containing such way, without disclosing to the purchaser plaintiff’s rights in the land, and said purchaser having no knowledge, actual or constructive, of plaintiff’s rights over and across the same, denies the right of plaintiff to use the same; that by reason thereof plaintiff has been damaged, etc., — does not state a cause of action.</p>

<p>Criminal Law.- — Indictment, Sufficiency of. — County Fair. — Leasing Gt'ounds for Gambling Devices. — An indictment which charged, in substance, that H., while acting as superintendent of privileges and director of the Boone county fair, did, on August 23, 1893, unlawfully lease, rent, and donate a portion of the premises and grounds used and occupied by said fair, to J., to be used and occupied with apparatus, books, and other devices for the purpose of recording and registering bets and wagers, and selling pools upon the results of races, — states a public offense, and is sufficient.</p>

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

<p>Paktition. — Division of Ancestor's Estate Without Administration.— Bank Stock. — Agreed Value.— Mutual Mistake. — Where heirs, all being upon an equality and acting in good faith, effect an amicable partition, without administration of an ancestor’s estate, among themselves, and one of them accepts as his share certain bank stock at an agreed value, when it is in fact worthless, the latter is bound by the transaction, and can not compel the other heirs to contribute.</p>

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

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

<p>Master and Servant. — Negligence.—Infant.—Instruction.—The duty of an employer of a minor to instruct the latter as to the dangers involved in the service and the care to be observed is not gauged by “the knowledge, capacity, and experience of an ordinary youth” of the age of the employe, but by the requirements of the employe himself, and whether the duty has been discharged in the particular case is a question of fact for the jury.</p> <p>Same.— Contributory Negligence. — Burden of Proof. — In an action for negligence, the burden is upon the plaintiff to aver and affirmatively prove not only that the injuries sustained were caused by the negligence of the defendant, but that the plaintiff did not contribute thereto.</p> <p>Same. — Contributory Negligence of Infant. — What would be contributory negligence in one person might not, even under the same circumstances, constitute such negligence in another, as, for example, where one person is a man of mature years and experienced in a given employment, and the other a boy of tender age with little or no experience.</p> <p>Same. — Negligence, When for Court and When for Jury. — When the facts found are such that but one inference may be legally drawn from them, in any event, the question of negligence or the absence of it is for the court, but when the facts found leave room for a difference of opinion between reasonable men as to the inferences that might be drawn from them, it is for the jury to determine, from such facts, whether the party having the burden exercised due care.</p> <p>Same. — Infant.—Hazardous Service. — Where an employer, with knowledge of the youth and inexperience of an employe, directs the latter to perform a hazardous service, without giving to him instruction as to the danger, and cautionary advice as to the care necessary commensurate with the requirerhents of the employe, it constitutes negligence.</p> <p>Same. — Gare Required of Infant. — Special Verdict. — A youth seventeen years of age is not required to use as much care as an adult, but he must exercise reasonable care according to his capacity and the circumstances of the case, and where a special verdict fails to show either by way of such ultimate facts as will enable the court to adjudge, as matter of law, freedom from contributory negligence, or by the finding of an inferential fact to that effect, a judgment for damages will not be sustained.</p> <p>Same. — Insufficient Finding as to Gare Required. — Where the action is ' by an infant seventeen years old, and his age is affirmatively found by the jury accordingly, a further finding that he exercised the care of a boy of from thirteen to sixteen years, which they find to be his apparent age, is not, without more, sufficient.</p>

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

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

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

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

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

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

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

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