The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-09-18

supreme court
Hon. G. V. Howk. G. j.
The following decisions were rendered Sept. II:
wARRANTY-BREAoH-PAR EVIDENCE.
1854 Mary j. Hays vs., Samuel Peck-On q
suit for breach of warranty. parol evidence that
the plaintiff agreed to assume the incumbr
under which the land was sold was admissible
HUSBAND AND wIFE-TENANTs BY ENTIRETIEs
PLEADING.
1868 William j. Mcleod, eft ux., vs.. Etua
Life Insurance Company Hamilton G. G. AT
firmed. Howk c. J-1) 4 complaint against
husband and wife to forec:ose mortgage need
not aver that the wife had received any benefit
OF the consideration, unless it is averred that she
was surety. A married woman may enter in
to an executory contract and be bound as il sole.
u An answer must respond to the whole com
plant. or to so much thereof as it purports to
answer, or it is bad, e. Where husband and
wife, as tenants by entireties, execute mort
gage for the benefit of the common proper ty it
is valid
NEUTRALITY-SUSPICIOUS.
l2068 Alexander Hardy ct al vs.. John Me-
kinney Cass G. c. Reversed Nlblack, j.
H. The act of March 13. 1879, concerning drain
age, does not repeal the act of March y, 1875.
T. Upon appeal from the board of commits
sloners to the Circuit Court the cause stands for
trial de novo The appeal suspends all proceed
ings below. and they cannot be used. The court
ana jury trying the appealed cause succeeds to
all the substantial duties which devolved upon
the viewers and reviewers before the board, and
finding in detail upon all the matters in issue.
between the parties is contemplated. This in
cludes the assessment of benefits and allowance
of damages, where damage is allowed The
finding or verdict ought to be sufficiently specific
upon every question involved to authorize judg-
ment finally determining all matters in contro-
versy, and leaving nothing to the board if the
cause be sent back. The finding in this case
was too general and indefinite to authorize
Judgment finally disposng of the case
NEUTRALITY-SUSPICIOUS. OBSERVATION-DISCLOSURES.
1928 Henry A. Woelery, administrator,
L., n. A. & G. Ry. Co. Washington G. 9. AT
firmed. Mitchell, J.-IJ When a car OF lum
Der was SO loaded that it fell from the car,
injuring a passenger, there is presumption of
negligence against the company. (2.) 1t is the
exclusive province of the Jury to ascertain the
facts when contributory negligence is the issue,
and apply them, when ascertained, to the law,
and return their general verdict accordingly
In doing this they are to be guided by proper
instructions from the court as to the law. (3)
One Woolery, of vigorous health, and forty
eight years old, was a passenger on freight
for passengers, after which he stood by door
at the side of the car, supporting
himself by holding to an iron rod.
While in that position, the train running four
teen or fifteen miles an hour. the stakes which
held the lumber on fat car Immediately ahead
gave way. Some Of it was strewn along the
track, some struck the caboose. making consid
cradle noise and confusion. No car left the
track. The caboose was but slightly injured.
The other passengers sustained no injury.
Woolery jumped out of the open door and was
killed. Held that he was guilty of such con-
trbutory negligence as defeated recovery.
12s49. Joseph w. Thorp ct al vs. Simon
Hanes Marshall G. G. Rehearing denied.
l2065. L., N. A. 6 c. Ry. Co. vs. Frank E.
WOoley Monroe c. G. Rehsaring denied.