PARTNERSHIP.

1. RELATION EXISTING BETWEEN PARTNERS IS ONE OF TRUST and confidence,
and when dealing with each other in relation to the partnership matters,
they are required to make full disclosure of all material facts within their
knowledge in any way relating to the partnership affairs. Caldwell v.
Davis, 599.

2. COMMUNITY OF INTEREST EXISTS BETWEEN PARTNERS, producing a com
munity of duty. Id.

3. WHEN CONTRACTING BETWEEN THEMSELVES, PARTNERS ARE REQUIRED to
show the utmost good faith toward each other, and the concealment of
material facts by one, which he should disclose to the other, is a fraud for
which the contract may be canceled. Id.

PAYMENT.

See STATUTE OF LIMITATIONS.

PHYSICIANS.

PHYSICIAN CALLED IN GENERALLY, WITHOUT LIMITATION AS TO HIS AT-
TENDANCE, is impliedly engaged to attend the patient through that ill-
ness, or until his services are dispensed with. Dale v. Donaldson Lumber
Co., 224.

PLEADING AND PRACTICE.

1. MODES OF PROCEDURE AND RULES OF PRACTICE, PRESCRIBED IN CIVIL
ACTIONS, ARE ALL APPLICABLE in Indiana to special statutory proceed-
ings for the enforcement of private rights, except where the statute
authorizing and regulating such special proceeding has expressly or by
fair implication prescribed a different course of procedure or rule of
practice therein. Chicago & A. R'y Co. v. Summers, 615.

2. WHERE ALLEGED MISJOINDER OF PARTIES appears on the face o. the com-
plaint, and is demurred to and overruled but an answer is filed and the
trial proceeded with, the defendant waives his right to insist on the al-
leged error in the appellate court. Fillmore v. Wells, 567.

3. PERSON ENTITLED TO ELECTION BETWEEN INCONSISTENT REMEDIES WILL
BE CONFINET TO ONE which he first prefers and adopts. Nanson v.
Jacob, 531.

4. ARGUMENTATIVE PLEADING IS BAD under all systems of practice. Sup-
ply Ditch Co. v. Elliott, 586.

5. WHERE COMPLAINT DESCRIBES LANDS SUED FOR as east half of a certain
tract, a deed for the south half of the same tract is properly admissible
in evidence, since the one is necessarily overlapped by the other in part.
Green v. Jordan, 711.

6. DEMURRER ADMITS ALL MATERIAL FACTS WELL PLEADED, and all neces-
sary intendments and inferences as to such facts as the demurrer applies,
but all facts not alleged in the pleading attacked by demurrer or neces-
sarily inferred are assumed not to exist. Supply Ditch Co. v. Elliott, 586.
7. MOTION TO STRIKE OUT ANSWER WILL NOT PERFORM OFFICE OF DEMUR-
RER THERETO for want of sufficient facts, and should not be sustained if
the facts pleaded therein are relevant or pertinent to the issue, although
insufficient on demurrer. Chicago & A. R'y Co. v. Summers, 615.

8. DEFENDANT, BY PLEADING OVER AFTER Demurrer OVERRULED, WAVES
ALL OBJECTIONS to the ruling of the court on the demurrer. Tabor v.
Merchants' Nat. Bank, 241.

9. WHERE ANSWER DENIES ASSIGNMENT OF CAUSE OF ACTION TO PLAINTIFF,
and that he is the real party in interest, it is error to exclude evidence
offered in support of the issue so tendered. Nanson v. Jacob, 531.
10. WRIT OF ERROR BRINGS UP WHOLE RECORD, and though the judgment
below were on a demurrer to evidence, advantage may be taken of a
fatal defect in the declaration. Jones v. Old Dominion Cotton Mills, 92.
11. EVERY PRESUMPTION IS IN FAVOR OF CORRECTNESS AND REGULARITY OF
PROCEEDINGS of courts of general jurisdiction, and error cannot be
presumed. Bills of exceptions should therefore state affirmatively that
they contain "all the evidence" submitted to the trial court. Aspinwall
v. Sabin, 258.

12. USUAL PRACTICE OF APPELLATE COURTS IS TO CONSIDER WHOLE REC-
ORD, and pass upon errors in the order in which they were committed,
and generally to reverse the judgment for any material error, not waived,
without looking into the subsequent proceedings. Jones v. Old Dominion
Cotton Mills, 92.

13. WHERE RIGHT VERDICT IS SET ASIDE, APPELLATE COURT WILL RESTORE
Ir and enter judgment thereon, and will reverse a subsequent judgment
that is inconsistent with the previous right verdict. But if the subse-
quent judgment be consistent therewith, it will be affirmed. Yet if the
plaintiff was entitled to a judgment on the first verdict set aside on the
defendant's motion, he is entitled to a judgment on the last verdict,
where both arrived at the same result, the only difference being that the
last verdict found a larger amount of damages in the plaintiff's favor. Id.
14. PRACTICE-JUDGMENT ON LAST VERDICT. The plaintiff had two ver.
dicts in succession, in his favor, for damages for an injury sustained
through the negligence of the defendant. Each verdict was, in its turn,
set aside on the defendant's motion. A third verdict was rendered in
favor of the plaintiff, giving a larger amount of damages, subject, how-
ever, to the defendant's demurrer to the evidence, which the court below
erroneously sustained. Held, that the plaintiff was entitled to judg-
ment on the last verdict. Id.

15 RULE OF Appellate COURT WHERE THERE HAVE BEEN TWO TRIALS of a
case in the lower court is, to look only to the proceedings on the first
trial, and if it discovers that the trial court erred in setting aside the
verdict on that trial, to set aside all proceedings subsequent to such
verdict, and enter judgment thereon. Muse v. Stern, 77.

16. WHERE EVIDENCE IS CONFLICTING, AND INVOLVES CREDIBILITY OF WIT
NESSES, and the trial court sets aside the verdict and certifies the evi-
dence, the appellate court will look to the whole evidence and sustain
the verdict, unless there has been a plain deviation from right and justice,
and the verdict is against the law or the evidence, or without evidence.
Id.

17. COURT CANNOT DICTATE ORDER IN WHICH PARTY SHALL PUT IN HIS
EVIDENCE as to a question of fact. Lewis v. Schwenn, 511.

18. DISCRETION OF TRIAL COURT IN REGULATING CONDUCT OF COUNSEL IN
ARGUMENT will not ordinarily, in civil cases, be interfered with by the ap.
pellate court, unless counsel is permitted, against objections, to make or
persevere in improper remarks. In the absence of timely objection and
exception to such remarks, they will be deemed to have been waived.
Sidekum v. Wabash etc. R'y Co., 549.

See CRIMINAL LAW; CORPORATIONS; ESTOPPEL; MORTGAGES; OFFICE AND
CERS; RAILROADS.

AM. ST. REP., VOL. III.-61

PRESCRIPTION.

-RIGHT ACQUIRED BY PRESCRIPTION IS ONLY COMMENSURATE WITH RIGHT
ENJOYED. The extent of the enjoyment measures the extent of the
right. The right gained by prescription is always confined to the right
as exercised for the full period of time required by the statute. Boynton
▼. Longley, 781.

PROCESS.

MALICE AND WANT OF PROBABLE CAUSE MUST CONJOIN to render action-
able the misuse or abuse of legal process in the common-law or ordinary
remedies. Eslava v. Jones, 699.

POWERS.

See AGENCY.

PROFIT A PRENDRE.

See EASEMENTS; INJUNCTIONS.

RAILROADS.

1. PROCEEDING TO ENFORCE PAYMENT OF JUDGMENT FOR ANIMALS KILLED OB
INJURED BY RAILROAD COMPANY, under section 4030, Indiana Revised
Statutes of 1881, is an original proceeding to be instituted only in the
circuit court of the proper county, the decision in which is a final
judgment, from which an appeal will lie to the supreme court, without re-
gard to the amount of the original judgment sought to be enforced. Chi-
cago etc. R'y Co. v. Summers, 615.

2. COMPLAINT IS SUFFICIENT ON DEMURRER, although, it seems, a motion to
make it more certain and specific would be granted, where, in a proceed-
ing under section 4030, Indiana Revised Statutes of 1881, to enforce pay-
ment of a judgment for animals killed and injured by a railroad com-
pany, it alleges that the "judgment was upon a complaint for stock
killed and injured by said railway company," without showing that the
stock were killed by the "cars, locomotives, or other carriages" of the
company as mentioned in the statute. Id.

3. PLEADING REQUIRED TO BE FILED BY PLAINTIFF IN PROCEEDING TO EN-
FORCE PAYMENT OF JUDGMENT for animals killed or injured by a rail.
road company, under section 4030, Indiana Revised Statutes of 1881,
although called in the statute a "motion," may be demurred to or an-
swered as in other civil cases. Id.

4. RIGHTS OF TRAVELER AND OF RAILROAD COMPANY UPON HIGHWAY CROSS-
ING ARE EQUAL, in a sense; but the right of the company is superior in
respect to the priority of passage. Ohio & M. R'y Co. v. Walker, 638.
5. RAILROAD COMPANY IS NOT BOUND TO BRING TRAIN TO STOP, OR TO
SLACKEN ITS SPEED, when a person is seen crossing, or about to cross,
the track at its intersection with a highway, but may presume that such
person will take all proper precautions to avoid injury. Id.

6. EVIDENCE THAT BRAKEMEN ON RAILROAD TRAINS ARE IN HABIT OF EJECT-
ING FROM TRAIN TRAMPS who refuse to pay their fare, is admissible to
prove that it is within the line of a brakeman's duty to eject a person
for the non-payment of his fare. St. Louis, I. M., & S. R'y v. Hendricka,

220.

7. EVIDENCE OF DEFECT IN RAILROAD TRACK MUST BE CONFINED TO TIME OF
Casualty, of which it is alleged to have been the cause, or to proof of

such a state of facts, so shortly before or after it, as will induce a reason-
able presumption that the condition was unchanged. The jury cannot,
without proof, infer the existence of the defect. Little Rock and Fort
Smith R'y Co. v. Eubanks, 245.

See COMMON CARRIERS; EMINENT DOMAIN; EQUITY, 6; NEGLIGENCE.

RAPE.

See CRIMINAL LAW, 95-98.

RECEIVERS.

RECEIVER OF INSOLVENT CORPORATION APPOINTED IN NEW JERSEY TO
ADMINISTER ASSETS THERE HAS NO POWER to transfer to a foreign
jurisdiction any question touching the appropriation and distribution
of such assets. He cannot thus deprive the court which appointed him
of its authority over him and over the fund which he holds as its officer.
Reynolds v. Stockton, 305.

RECORDS.

THAT RECORDS OF COURT SHOULD BE SIGNED BY JUDGE IS NOT ESSENTIAL
to their validity, in Missouri. Fontaine v. Hudson, 515.

REFEREES.

See ATTORNEYS AT LAW, 2.

REGISTRATION.

See MORTGAGES.

REMAINDERS.

See HUSBAND AND WIFE, 1.

REPLEVIN.

See SALES, 1.

RESCISSION.

See CONTRACTS.

SALES.

1. DELIVERY SUFFICIENT TO COMPLETE Sale. · Where agent of purchaser
buys wheat stored in a warehouse, and orders it delivered on cars, and
it is removed from the warehouse and put in the cars by rightful act
duly authorized, after which the cars are side-tracked awaiting trans-
portation, this is sufficient delivery to the purchaser to exempt the
wheat from liability to seizure under a writ of replevin at the instance
of a third party who claims title to it. Allen v. Agee, 206.

2. IT IS BUYER'S OWN FAULT IF HE IS SO NEGLIGENT as not to ascertain the
right of the vendor to sell, and he cannot successfully invoke his bona
fides to protect himself from liability to the true owner, who can only
be divested of his rights or title to his property by his own act, or by op-
eration of law. Every one is bound at his peril to ascertain in whom the
real title is vested, and no matter how much diligence he may exert to
that end, he must abide by the consequences of any mistake. Velsian
▼. Lewis, 184.

3. MERE POSSESSION OF ANOTHER'S PROPERTY affords no evidence that the
person having possession has power to sell, and he who purchases or
intermeddles with it must see that ho is protected by the authority of
one who has power to sell. Id.

4. POSSESSION Taken under PURCHASE from one without title, and who has
himself been guilty of conversion in disposing of the goods, is possession
unauthorized and wrongful at its inception, and which the absence of
evil intent in the purchaser cannot make rightful or lawful. Id.
5. ON QUESTION OF SOUNDNESS OF HORSE, it is relevant and competent to prove
what kind of and how much work was done by the animal while in the
purchaser's hands. Whitworth v. Thomas, 725.

6. SELLER OF HORSE WHO REPRESENTS HIM TO BE SOUND, knowing him to
be unsound, and thereby misleading the purchaser, who is unable to dis-
cover the defect by ordinary observation, perpetrates a fraud which will
entitle the purchaser to rescind on demand made within a reasonable
time after the discovery of the fraud. Id.

See AGENCY; BONA FIDE PURCHASERS; TROVER.

SCHOOLS.

1. TEACHER'S RIGHT TO CHASTISE PUPIL IS RESTRICTED to the limits of his
jurisdiction and responsibility as a teacher, and is not a general right,
like that possessed by a parent. Van Vactor v. State, 645.

2. TEACHER MAY EXACT COMPLIANCE WITH ALL REASONABLE COMMANDS
within the limits of his jurisdiction, and may, in a kind and reasonable
spirit, inflict corporal punishment upon a pupil for disobedience. Id.
3. PUNISHMENT INFLICTED BY TEACHER UPON PUPIL SHOULD NOT BE CRUEL
OR EXCESSIVE, and ought always to be apportioned to the gravity of the
offense, and within the bounds of moderation; but when complaint is made,
the calm and honest judgment of the teacher as to what the situation
required should have weight, and the reasonableness of the punishment
determined by the varying circumstances of the particular case. Id.
4. INTENT NECESSARY TO SUPPORT CHARGE OF Assault and BATTERY, IN CASE
OF CHASTISEMENT OF PUPIL BY TEACHER, may be inferred from the un-
reasonableness of the method adopted, or the excess of force employed,
but the burden of proving such unreasonableness or excess is upon the
state. Id.

5. TEACHER HAS PRESUMPTION OF HAVING DONE HIS DUTY, in support of his
defense, in addition to the general presumption of his innocence, in a
prosecution against him for assault and battery in inflicting corporal pun-
ishment upon a pupil. Id.

6. LEGITIMATE OBJECT OF CHASTISEMENT OF PUPIL BY TEACHER IS TO INFLICT
PUNISHMENT by the pain which it causes, as well as the degradation which
it implies; and it does not follow that a chastisement was cruel or op-
pressive because pain was produced or abrasion of the skin resulted from
a switch used by the teacher. Id.

7. CHARACTER OF CHASTISEMENT OF PUPIL BY TEACHER, WITH REFERENCE TO
ANY ALLEGED CRUELTY OR EXCESS, MUST BE DETERMINED, when a
proper weapon has been used, by the nature of the offense, the age, physi
cal and mental condition, as well as the personal attributes of the pupil,
and the deportment of the teacher. Id.

SEQUESTRATION.

See JURISDICTION, 5.