Rensselaer Republican, Volume 23, Number 14, Rensselaer, Jasper County, 4 December 1890 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the Indiana Snt preme Court. In equity and at law it has always been held that tenants in eommon of a life estate in land may have compulsory partition, and the statute of this State has not changed this rule. , Votes cast for a person not eligible to an office'can Hot be counted against thd opposing candidate, and the Opposing candidate, although receiving a less number of votes, is duly elected. The tenant of a store-room with a leaking roof, which Lhe landlord, had agreed to repair, but failed to do so, can • not voluntarily permit his goods to remain in the building and suffer great damage from such Teak, and then recover from his landlord the amount of such damage. It is the duty of such tenant to protect his stock by making such repairs himself and offset the cost against his rent. “ T- ?■■,. '• ---^'■ l . , ■''”'■ —i —*—- To a complaint for damages occasioned by the appropriation of the plaintiff’s land for the right of way for a railroad track, the defendant answered facts constituting a good common law arbitration of the amount of plaintiff’s damage, and a tender of the amount of the award, Held: That the submission of the cause of action set out in the complaint to arbitration, and award thereon, was a bar to such cause of action, though the award had not been performed. i ■ 1 One wno purchased property at a public sale made pursuant to a published notice, presumptively purchases upon the terms proposed, and where the terms required the buyer to execute an interest-bearing note, with surety, payable eight months after date, and he failed to do so, and the seller retained possession, there was no complete investiture of title and no •uch transfer of ownership as entitled' the buyer to maintain replevin, even though he tendered the amount of the purchase money part in cash and part by note. * The Common Council of a city has [ the power to choose between bidders for street improvements, and when it has done so its decision is final, and ■ the fact that it did not choose the lowest bid is no defense to an action or a ; precept for the collection of an assessment for such improvement, nor is the fact that it required the successful : bidder to contract to make certain ad- ■ ditional improvements of the same ■ street, not originally contemplated, at substantially the amount of his bid for the improvement originally contemplated. 1 Patrol evidence will not be received fop the purpose of engrafting upon a promisory note which appears upon its face to call for the payment of a definite sum of money, at a specified time, absolutely and unconditionally, a condition which contradicts its terms; > but where the patrol evidence goes to r the extent of showing a eontempor- ■ aneous agreement, whereby the note sued on might be paid or satisfied otherwise than by the payment of money, and that in pursuance of that agreement it had actually been satisfied and surrendered up to the maker who cancelled it as a paid note it is admissable. Appellee had a sum of money on deposit with appelant, a bank. The bank received a note indorsed to it for collection, payable by the depositor to S. & Co., at the bank in question. The bank remitted the amount due on the note to its correspondent and. charged the account to its depositor with the sum remitted. This was done without notice to the depositor, or other authority except such as the law implies from the fact that the note was negotiable and payable at the bank, and was duly indorsed and sent to it for collection. The depositor repudiated the act of his banker, and sued tho banker to recover a balance which comprised the amount paid on the note. The bank acted fn good faith and the note was owing by the depositor. Held. That the bank was entitled to hold the note as the equitable owner or purchaser, and to set it off against the depositor’s suit for the balance of his deposit. (1) Whether a certain state of fact constitutes negligence is a question o fact for the jury to determine, and an instruction telling the jury that such facts did or did not constitute negligence would be erroneous. (2) The credibility of witnesses and the weight to be given to their testimony, are questions for the jury to determine, and instructions telling the jury that under certain circumstances the testimony of one witness is entitled to. more weight than another would be erroneous. (3) When a person is injured while cossing a pailroad, by collision with a train, the fault is prima facie his own. and he must show by a fair prepondorenee of the evidence that he was not guilty of contributory negligence;, eno whose team is injured, by a collision with a train, while it is in charge of a servant, is chargeable with the negligence of such servant; persons about to cross a railroad track are bound to recognize the danger, and make use of the sense of hearing and of sight, and if one sense is not available the obligation to use the other is the stronger, to ascertain if a train is dangerously close; where a cressing is particularly dangerous, care, proportioned to 1 the danger, must be used; failure of the railroad employes to ring the bell or sound the whistle do not enter into the question of contributory negligence of a person injure’! at a crossing. These propositions state the law correctly, and i| was the duty of the trial court to glv< the instructions embodying them, in the absence of others properly cover, ing the same ground. ..