Where an objector to a judgment and order
of sale in special assessment proceedings appears
and makes defense, he waives insufficiencies
in the delinquent list and in the notice of ap-
plication for judgment.-Ottis v. Sullivan (III.)
487.

In special assessment proceedings, held error
to enter judgment of sale on the record as it
stood.-Ottis v. Sullivan (Ill.) 487.

In the absence of anything to the contrary
it will be presumed that lots assessed for a local
improvement as one parcel were owned and im-
proved as one parcel, so as to sustain the assess-
ment under Laws 1901, p. 106, § 41, amending
the local improvement act.-Ottis v. Sullivan
(Ill.) 487.

Where appellant from a judgment and order
of sale in special assessment proceedings fails to
set out any part of the assessment ordinance in
his abstract, the Supreme Court will not search
the record for alleged defects in such ordinance.
-Ottis v. Sullivan (Ill.) 487.

Under Revenue Act (Hurd's Rev. St. 1903, c.
120) § 191, held proper to permit city treasurer's
report, etc., to be amended on application for
judgment and sale for delinquent assessments.
-Ottis v. Sullivan (Ill.) 487.

A special assessment judgment for the "spe-
cial assessment, printers' fees, and costs," is
not subject to the objection of allowing a double
recovery for printers' fees.-Gage v. People
(Ill.) 498.

A special assessment judgment may refer to a
following attached schedule, and make the same
a part of the judgment.-Gage v. People (Ill.)
498.

§ 10. Police power and regulations.
*Town clerks have jurisdiction over prosecu-
tion for the violation of town ordinances.-Chi-
cago, I. & L. Ry. Co. v. Town of Salem (Ind.
Sup.) 631, 634.

§ 11. Use and regulation of public pla-
ces, property, and works.

In an action for injuries in a collision with an
automobile, evidence held to require submission
of the question of defendant's negligence to
the jury.-Hennessey v. Taylor (Mass.) 224.

In an action for injuries in a collision between
plaintiff and an automobile, the interpretation
of plaintiff's testimony and her negligence, if
any, in failing to observe the condition of
travel in the street, held for the jury.-Hen-
nessey v. Taylor (Mass.) 224.

In an action for injuries to plaintiff by a
collision with defendant's automobile, facts
held not to show such a balancing of probabili-
ties by plaintiff that she assumed the risk as a
matter of law.-Hennessey v. Taylor (Mass.)
224.

§ 12. Torts.

In an action against a city by a property
owner for damages from surface water dis-
charged upon plaintiff's property, held that evi-

dence that the water resulted from extraordi-
nary rains was admissible under the general de-
nial.-City of Valparaiso v. Spaeth (Ind. Sup.)
514.

In an action against a city by a property
owner for damages from surface water dis-
charged upon her property from a ditch con-
structed along a street, error in excluding evi-
dence that the water resulted from extraordi-
nary rains was prejudicial.-City of Valparaiso
v. Spaeth (Ind. Sup.) 514.

A city in constructing side ditches, culverts,
and outlets for surface water on the improve-
ment of a street, is only required to provide for
such waters as may be reasonably expected to
fall, and which are not the result of rains of
extraordinary character.-City of Valparaiso
v. Spaeth (Ind. Sup.) 514.

*A city held liable for the discharge of water
upon a lot abutting on an improved street.-
City of Valparaiso v. Spaeth (Ind. Sup.) 514.

Under Local Improvement Act, 88 42, 61, 63,
65, 84 (Hurd's Rev. St. 1903, c. 24. §§ 548,
567, 569, 571, 590), application for judgment
and order of sale against property assessed
cannot be maintained where the rebates of the
excess of assessments over the cost of the im-
provement have not been made.-Gage v. People
(III.) 834.

Failure of city to comply with Local Improve-
ment Act, § 42 (Hurd's Rev. St. 1903, c. 24,
§ 548), requiring the board of local improve-
ments to file a certificate of the date of the
first voucher, etc.. held not prejudicial to a
property owner.-Gage v. People (Ill.) 834.

Under St. 1852, p. 172, c. 244, § 2, and St.
1869, p. 497, c. 155, under which the city of
Boston operates a ferry carrying passengers for
hire, it is liable for injuries to passengers re
sulting from its negligence.-Davies v. City of
Boston (Mass.) 663.

*Under Rev. Laws, c. 11, § 186, a city held
to have no authority to construct a polling
booth in the traveled part of a public street,
as a defect in the street.-Haberlil v. City or
so that such a booth may properly be regarded
Boston (Mass.) 907.

In action for injuries from defects in cross-
walk, instruction as to contributory negligence
held erroneous; the question of contributory
City of Boston (Mass.) 957.
negligence being for the jury.-McMahon v.

A trespasser or mere licensee on the prem-
ises of another cannot recover from the latter
for personal injuries sustained by falling
through an open hatchway on such premises.
-Mallock v. Derby (Mass.) 721.

2. Contributory negligence.
*In an action against a railroad for wrong-
ful death of plaintiff's decedent while attempt-
ing to drive over a crossing, the existence of the
marriage relation alone held not to have the
effect of charging decedent with the negligence
of her husband, who at the time had sole man-
agement and control of the team.-New York,
C. & St. L. R. Co. v. Robbins (Ind. App.) 804.
*The fact that a married woman is riding
with her husband, who has entire control of the
team, while attempting to cross a railroad
track, does not relieve her of the duty of exer-
cising care for her own safety.-New York, C.
&. St. L. R. Co. v. Robbins (Ind. App.) 804.
*A child injured in crossing a street car track

held bound to exercise all the care he might
reasonably have exercised by the employment
of all of his faculties.-Roberts v. Terre Haute
Electric Co. (Ind. App.) 895.

*Where a child was injured by ice dropped by
one delivering the same, that the child was at
the time playing in the street did not bar a re-
covery. Slattery v. Lawrence Ice Co. (Mass.)

459.

*The standard of care on the part of an infant
capable of going on public ways unattended de-
pends upon his age and intelligence.-Slattery v.
Lawrence Ice Co. (Mass.) 459.

*Contributory negligence is a matter of de-
fense.-Union Traction Co. v. Sullivan (Ind.
App.) 116.

*In an action for injuries, the burden of prov-
ing contributory negligence is on defendant.-
Roberts v. Terre Haute Electric Co. (Ind. App.)
323.

*Under Acts 1899, p. 58, c. 41, contributory
negligence is a matter of defense, and must be
proven by defendant by a fair preponderance of
the evidence.-New Castle Bridge Co. v. Doty
(Ind. App.) 557.

*In an action for injuries from falling into
an open elevator shaft, the burden of proving
the defendant's negligence is on the plaintiff.
-Fletcher v. Kelly (Ind. App.) 813.

*In an action for injuries from falling into
an open elevator shaft, the burden of proving
plaintiff's contributory negligence is on the de-
fendant.-Fletcher v. Kelly (Ind. App.) 813.

In an action for injuries from falling into
an elevator shaft, evidence held sufficient to
justify a verdict in favor of plaintiff.-Fletch-
er v. Kelly (Ind. App.) 813.

Where one delivering ice dropped it so that in-
jury resulted to a child, in an action for inju-
ries, the evidence held to sustain a finding that
the child exercised reasonable care.-Slattery v.
Lawrence Ice Co. (Mass.) 459.

In an action to recover for injuries received
by being struck by an electric car while cross-
ing the public street, evidence held to show that
plaintiff failed to exercise ordinary prudence,
and was guilty of contributory negligence as
a matter of law.-Lofsten v. Brooklyn Heights
R. Co. (N. Y.) 1035.

§ 5.

Trial.

Actions-Pleading.

*A plaintiff may plead in one paragraph
different acts of negligence, and on the trial
it is sufficient if he prove such negligence
charged as will establish his case; and this
may be a single act of negligence.-New York,
C. & St. L. R. Co. v. Robbins (Ind. App.) 804.

*Contributory negligence, though a matter
of defense, may be proved under the general
denial. New York, C. & St. L. R. Co. v. Rob-
bins (Ind. App.) 804; Roberts v. Terre Haute
Electric Co. (Ind. App.) 895.

A guardian held not entitled to prove that
his ward was non sui juris where such fact
had not been pleaded.-Roberts v. Terre Haute
Electric Co. (Ind. App.) 895.

*By the express provisions of Acts 1899, p.
59, c. 41, in an action against a railroad for
injuries sustained in a crossing accident, it is
not necessary to allege freedom from contribu-
tory negligence.-Southern Indiana Ry. Co. v.
Corps (Ind. App.) 902.

*The sufficiency of a complaint, in an action
for negligence, as against a demurrer, must be
tested by the specific averments thereof, with-
out reference to the general allegations.-Balti-
more & O. S. W. R. Co. v. Kleespies (Ind.
App.) 1015.

*Where, under the rules of law, a given class
of facts, embodying all the controlling facts
and evidence and the reasonable inference aris
ing therefrom, constitute negligence or due
care, it is proper to so instruct the jury.-
McIntyre v. Orner (Ind. Sup.) 750.

*The question of contributory negligence is
for the jury, except where the exact standard
of duty is fixed.--Union Traction Co. v. Sul-
livan (Ind. App.) 116.

*An instruction in an action for personal
injury held to correctly state the law on the
question of contributory negligence.-Baltimore
& O. S. W. R. Co. v. Kleespies (Ind. App.)

1015.

In an action for injuries to a child in a street,
owing to ice dropped by one delivering it, held a
question for the jury whether the accident
should have been foreseen and guarded against
by defendant's agent.-Slattery v. Lawrence
Ice Co. (Mass.) 459.

In an action for personal injuries, whether
plaintiff was on defendant's premises by invita-
tion or was a mere licensee held a question for
the jury.-Mallock v. Derby (Mass.) 721.

*Question of negligence in the discharge of
fireworks in a public park held a question for
the jury. Crowley v. Rochester Fireworks Co.
(N. Y.) 470.

*In actions for personal injuries arising from
negligence, that the facts are undisputed does
not make the question of negligence one of
law. Sharp v. Erie R. Co. (N. Y.) 923.

*Where a party by his own acts creates a
controlling presumption of contributory negli-
gence, he is guilty thereof as a matter of law.-
Lofsten v. Brooklyn Heights R. Co. (N. Y.)
1035.

NEGOTIABLE INSTRUMENTS.

See "Bills and Notes."

NEW TRIAL.

Briefs on appeal from ruling on motion for new
trial, see "Appeal and Error," § 13.

In condemnation proceedings, see "Eminent Do-
main," § 3.

In criminal prosecutions, see "Criminal Law,"
813; "Homicide," § 3.

Necessity of motion for purpose of review, see
"Appeal and Error," § 4.

Objections for review on motion for new trial,
see "Appeal and Error," § 4.

Remand by appellate court for new trial, see
"Appeal and Error," § 29.

Review of discretion of trial court as to grant-
ing, see "Appeal and Error," § 20.
Review of evidence to sustain verdict on ap-
peal from denial of new trial, see "Appeal
and Error," § 21.

Right to review rulings by certiorari,
"Certiorari," § 1.

see

Waiver in appellate court of grounds for new
trial, see "Appeal and Error," § 26.

§ 1. Proceedings to procure new trial.
Where alleged excessiveness of the judgment
was attempted to be presented by a motion for
a new trial on the fifth statutory ground, and a
new trial was sought only as to the cross-com-
plaint, and not as to the whole case, the motion
was properly overruled.-Oglebay v. Todd (Ind.
Sup.) 238.

The exclusion of evidence offered as a whole,
part of which was not competent, held not well
assigned as ground for new trial.-Indianapolis
& M. Rapid Transit Co. v. Hall (Ind. Sup.) 242.
§ 2. Statutory new trial as of right.
*The main purpose of the suit and the only re-
lief given being injunctive relief held defendant
was not entitled, under Burns' Ann. St. 1901,
$1076, to a new trial as of right.-Indiana
Rolling Mill Co. v. Gas Supply Min. Co. (Ind.
App.) 640.

NEXT OF KIN.

See "Descent and Distribution."

NONSUIT.

Before trial, see "Dismissal and Nonsuit."
On trial, see "Trial," § 4.

NOTARIES.

Criminal complaint before notary interested in
prosecution, see "Indictment and Informa-
tion," § 1.

The legality, under Burns' Ann. St. 1901, 8
8041, of the act of a notary public in taking
an affidavit on which an information was based,
held not open to collateral attack in the pros-
ecution. McNulty v. State (Ind. App.) 547.

NOTES.

Promissory notes, see "Bills and Notes."

NOTICE.

Of particular facts, acts, or proceedings.
See "Mechanics' Liens," § 3.

Action for wrongful death, see "Death," § 1.
Appeal, see "Appeal and Error," § 6.
Change of venue, see "Venue," § 2.

Claim for injury to traveler on highway. see
"Municipal Corporations," § 12.

Default of principal, see "Guaranty," $2.
Municipal improvements, see "Municipal Cor
porations," §§ 6, 8.

Sale on foreclosure, see "Mortgages," § 3.
Sales of trust property, see "Trusts," 3.
Taking private property for public use, see
"Eminent Domain," § 3.

To particular classes of parties.

Abutting owners, see "Municipal Corporations,"
§ 6.

NUISANCE.

Pollution of stream, see "Waters and Water
Courses," § 1.

Right to jury trial in action for damages on re-
fusal of injunction, see "Jury," § 1.

81. Private nuisances.

In a suit to restrain the operation of a
foundry, interfering with the enjoyment of
plaintiff's premises, an allegation of the com-
plaint held to warrant an inference that the
foundry could be so managed as to avoid the
nuisance.-Over v. Dehne (Ind. App.) 883.

*Court, on denial of equitable relief, may re-
tain jurisdiction and determine the question of
damages.-Miller v. Edison Electric Illuminat-
ing Co. (N. Y.) 734.

*Tenant or landlord may recover damages
for injury to enjoyment and occupation of
leased premises.-Miller v. Edison Electric Illu-
minating Co. (N. Y.) 734.

OATH.

Of arbitrators, see "Arbitration and Award,"
§ 1.

OBJECTIONS.

To evidence, see "Trial," § 2.
To instructions, see "Trial," § 9.
To pleading, see "Pleading," § 7.

OBSTRUCTING JUSTICE.

Conspiracy to obstruct justice, see "Con-
spiracy," § 2.

In a prosecution under Cr. Code, § 272, for
conspiracy to induce witnesses in a criminal
case to leave the state, the guilt or innocence
of the person at whose trial the witnesses
should have testified is immaterial.-Tedford
v. People (Ill.) 60.

*It is not necessary, to constitute the offense
defined by Cr. Code, § 272, of inducing wit
nesses in a criminal case to leave the state, to
show that the testimony of such witnesses
would be material.-Tedford v. People (Ill.) 60.

ing witnesses in a criminal case to absent
Indictment charging defendants with indue-
themselves from the "jurisdiction" of the court
held sufficient, under Cr. Code, § 272.-Ted-
ford v. People (Ill.) 60.

OBSTRUCTIONS.

In street, see "Municipal Corporations," § 12
Of easements, see "Easements," § 2.