The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-02-02
THE COURT RECORD.
SUPREME COURT

Church. Elkhart c. c. Reversed. DOW
ling, il Where the certificate of the
trial judge to the general bill of exceptions
was as follows: And now plaintiff
presents his bill of exceptions. containing
all the evidence offered. introduced and
given in said cause to the point where the
defendant rested its main case, and all OBJ
Jections and exceptions reserved during the
trlal or said cause TO the point where the
defendant rested its main case Said bill
or exceptions contains all the evidence in
said cause TO the point where the defend
ant rested his main case" Held that said
certhcate did not show that the evidence
set out In the bill OF exceptions was all
the evidence given in the cause. q In
passing upon the correctness of conclusions
or law this court can only look to the
pleadings and findings of fact alone 5.
Where the sum named declared TO be
fixed as liquidated damages is not greatly
disproportional TO the loss that may re-
suit from breach of the contract, and
exact pecuniary standard, the sum desig-
mated will be deemed stipulated damages,
and If the sum fixed cannot be recovered
then there Is no exact standard by which
the recovery can be measured and must
be fixed by other persons. although the
parties have fixed the value in writing it
in their contract. 4. An exception to con-
clusions of law Is an admission that the
facts are fully and correctly found. s..
Where facts are found that are not within
the issues they must be disregarded in con-
siderfng the sufficiency of the facts found
to sustain the conclusions Of law. 6. A
party by excepting to the conclusions of
law does not thereby admit that the facts
found were within the issues. z. The
special findings of facts should cover every
material fact necessary to constitute suf-
hcient cause Of action to entitle the pleader
to recover. 8. The findings of a fact not
averred in the pleading, and entirely with
out the issues, must be treated as a fact
not found 8. Where the court finds there
is nothing due material men and contrac-
tors in the foreclosure of lien, such par
ties are not entitled TO an allowance of at
torney's fees In attempting to foreclose an
alleged lien. 10. A church society has a
right to choose any name.
1904. Blue VS.. Beach. vigo c. G. AZ
hrmed Jordan, il The preservation of
the public health Is one OF the duties de-
volving upon the State. q The State boards
ity to secure and promote the public health,
nances, bylaws, rules and regulations
necessary TO carry out the object Of their
conferred upon them receive from the
courts liberal construction. 3. Boards OF
health adopt rules or bylaws by virtue of
legislative authority. and such rules or by
laws within their respective jurisdictions
have the force and effect of a law of the
Legislature. 4. Whatever laws or regula-
lions are necessary to protect the public
health and secure public comfort is legis-
ldtIVG question, ana appropriate measures
intended and calculated TO accomplish these
ends are not subject to judicial review. 5.
The powers granted to boards of health by
statute to adopt rules, bylaws and regu-
lations reasonably adapted to carry out the
purpose or object for which they are Gre
ated is not an improper delegation Of legis-
lative authority within the meaning of the
Constitution. g. In order to prevent the
spread of smallpox in case of an emergency
on account of danger Of the disease spread
ing, the board Of health of a city may pre-
vent any unvaccinated child from attend
ing the public schools. or close the school
temporarily during the emergency.
APPELLATE COURT.
2ss5. p, c., C. & ST. L. Railway Co. VS..
Adams. Madison 8. G. Reversed. Black, j.
for the acts of his servant when the latter is
acting within the scope of his employment.
2. A negligent act Of a servant for which
the master will be responsible must be done
while the servant is engaged in the per-
Torrance Of his duties, and one which per-
tains to the duties OF the servants en-
ployment. 3. The test Of the liability Of the
master for the torts Of his servant is
whether or not the servant at the time OF
committing the tort was acting within the
scope of his authority I'm the business OF
the master. 4. The pleadings in cause
are within the province Of the court alone
and the question as to the sufficiency of a
pleading must be decided as a question OF
law. 5. In deciding upon a demurrer the
meaning of a pleading must be gathered
from what is expressed therein
S045. Estate Of Doddridge VS.. Doddridge
Wayne C.. c. Affirmed. Robinson, il
Mutual consent to a rescission OF a con.
tract may be shown by acts and conduct
as well as by an express agreement. but
silence will not imply a waiver of right
when there Is no obligation upon the party
at the time to speak. g. Where a person
entered in the employ of person upon a
contract that the servant should perform
certain duties and the employer would con-
vey to the servant certain described real
estate, which contract was to be binding
upon the representatives of the employer
and the employer died without making
such conveyance and the heirs OF the de-
cedent bring suit to quiet the title. Held
that the servant, upon the filing of such
suit had the right to ask a decree for a
specific performance of the contract made
by the decedent, or might sue for damages
accruing from a breach OF the contract. OF
she might treat the contract as abandoned
and sue for the value OF her services: also
in case such servant. in the action to quiet
title. files disclaimer, she would be pre-
cluded from asking specific performance
but the filing OF such suit gave the servan,
the right TO select her remedy.
1888 l.. r. & w. r. r. Co. VS.. Ellis. Fay.
cite c. c. Appellants motion to dismiss
SUPERIOR COURT.
Room John L. McMaster, Judge.
Alonzo r. Hill VS.. Caroline Henry; to
f0reclose chattel mortgage. Cause dis
missed and costs paid.
Room FLAMES NJ. feathers, Judge.
Sarah A. Denny VS.. indianapolis Gas
Company; damages. On trial by jury.
Room 3-Vinson Carter, Judge.
Maud B. Griffith VS.. w. Horndon Messen-
ger ct al; note. On trial by jury.
CIRCUIT COURT.
Emma Cook VS.. Isabella Cooks Estate
Allowed by agreement for s625 and costs
agains. estate and in full Of this claim and
claim No. 1928. Preferred claim.
Emma Cook VS.. Joseph Cooks Estate
Settled and dismissed by agreement of par
ties and in full settlement of this claim
and of Claim 69l3.
Catherine Minor VS.. William Minor; di.
vorce. Settled and dismissed by agree
ment. Judgment against defendant fol
costs.
Henry III. GODDARD VS.. John Newlin's Es-
tate. Submitted to court. Allowed fol
81. at costs OF estate.
CRIMINAL COURT.
Fremont Afford, Judge.
State of Indiana VS. Frank Pierce Jessie
Thurber William Preston: conspiracy &C
commit felony. Allen r. Smith files ain
davit.. Defendants arraigned. Each pleads
not guilty.
John w. Healing, Special Judge.
State of Indiana VS.. John Turner: muir