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(Reinhard, J., dissenting) that the latter case, [emption laws.
properly distinguished, did not prevent a re-
covery on the facts alleged.

The statute is not violative

of the constitutional provisions above named, and, as against the objections urged by appellant, the complaint states a cause of action.

In Baltimore, etc., R. Co. v. Adams (1903) 159 Ind. 688, 66 N. E. 43, 60 L. R. A. 396, it was held that the garnishee defendant was It is claimed that the court erred in overnot liable to the original debtor. This court ruling the motion for a new trial, because, said: "The original creditor violated our as asserted, the evidence does not support statutes in sending the claim without the the decision of the trial court. The evidence state for the purpose of garnishment. is sufficient.

A wrong has been done the appellee, but its consequences ought not to be visited upon the appellant in the absence of any showing that it was a party to, or responsible for, such wrong." While in the above opinion, neither the case of Uppinghouse v. Mundel, supra, nor Kestler v. Kern, supra, is discussed, it is evident that this court did recognize the existence of a wrong done the plaintiff, and for which an action might have been maintained against the railway company had the latter participated with the creditors in the violation of the statute, resulting in his loss of a right to exemption, guaranteed him by the Constitution and statutes. In our opinion the case of Kestler v. Kern, supra, declares a correct and a just rule. O'Connor v. Walter, 37 Neb. 267, 55 N. W. 867, 23 L. R. A. 650, 40 Am. St. Rep. 486; Stark v. Bare, 39 Kan. 100, 17 Pac. 826, 7 Am. St. Rep. 537; 18 Cyc. 1485; Wilson v. Joseph, 107 Ind. 490, 8 N. E. 616.

[2, 3] Is our statute constitutional?

In Ohio, with constitutional provisions substantially like our own, a statute similar to ours, with an added provision affirmatively giving the debtor a right of action against the original creditor, was assailed as in conflict with the Constitution of that state. The court said: "The purpose of this section is to protect our citizens in their rights relating to homesteads and exemptions, and as the statutes on that subject are constitutional, any statute which is reasonably in aid of the right must also be constitutional, unless it should conflict with some other part of the Constitution. We find no such conflict. The section in question only prevents our own citizens from resorting to a sharp trick or practice in another state to defeat the provisions of our exemption laws; and the General Assembly has full power to so protect our citizens." Hinds v. Sells, 63 Ohio St. 328, 58 N. E. 800.

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(Supreme Court of Indiana. June 26, 1913.) 1. DRAINS (8 32*)-PROCEEDINGS FOR ESTABLISHMENT OBJECTION TO COMMISSIONERREQUISITES.

An objection to a county surveyor acting as a drainage commissioner, which merely alleged that he was prejudiced, without alleging some traversable fact showing interest or kin1908, 8 6142, providing for objections on acship, is not sufficient under Burns' Ann. St. count of interest in the work or kinship to any party.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 30-33; Dec. Dig. § 32.*] 2. APPEAL AND ERROR (§ 1046*)-PREJUDICIAL ERROR-PRESUMPTIONS-STRIKING MOTION FOR CHANGE OF Judge.

Error in striking a motion for change of judge made under Burns' Ann. St. 1908, § 422, cl. 7, will be deemed prejudicial on appeal, in the absence of a showing to the contrary.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4128 4131, 4134; Dec. Dig. § 1046.*]

3. DRAINS (§ 36*)-PROCEEDINGS FOR ESTABLISHMENT-REVIEW-HARMLESS ERROR.

§ 6148), providing that no person shall be perUnder drainage act (Burns' Ann. St. 1908, mitted to take advantage of any error unless he is directly affected thereby, those who did not remonstrate against the construction of the drain under Burns' Ann. St. 1908, § 6142, nor against the report of the commissioners as provided by section 6143, are not injured by the error in striking their motion for a change of judge.

Dig. 88 44-50; Dec. Dig. § 36.*] [Ed. Note. For other cases, see Drains, Cent.

Erwin, J., dissenting.

Appeal from Circuit Court, Jasper County; Charles W. Hanley, Judge.

Action by Frank B. Ham and others against Almira M. Stockton and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

John A. Dunlap, of Rensselaer, and W. H. Parkinson, of Indianapolis, for appellants. Abraham Halleck, of Rensselaer, for appellees.

Section 22, art. 1, of our Constitution, when adopted, enjoined the duty of the Legislature to provide, by wholesome laws, for exempting from seizure or sale for the payment of debts a reasonable amount of the debtor's property. The Legislature has executed the constitutional mandate by appropriate enactment. Section 745, Burns MORRIS, J. Action by appellees against 1908. Section 2669, Burns 1908, aims at the appellants to establish a public drain. The preservation of the debtor's constitutional cause was docketed, under the provisions right, by further legislation intended to cir- of section 3 of the act of 1907 (Acts 1907, p. cumvent those who by "sharp trick" would 508), on December 10, 1910, the last day subvert the humane provisions of our ex- of the pending term of court. On that day, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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court did not err in overruling the motion. [2] The court did err in striking from the files the motion for a change of judge. The motion should have been granted, and in appointing the drainage commissioners, after such motion was filed, the court acted erroneously, and ordinarily such action would be deemed prejudicial; but appellees contend that such error was harmless, because appellants never remonstrated against the construction of the drain, under the provisions of section 6142, Burns, supra, nor did they remonstrate against the report of the commissioners, as provided by section 6143, Burns 1908. Appellants evidently proceed on the theory that the error in refusing the change of judge made all subsequent proceedings in the cause void.

after the docketing of the cause, appellants | kinship. No such fact was stated, and the filed a motion to quash the summons, which was correctly overruled. They also filed an affidavit for a change of judge, under clause 7, § 422, Burns 1908, and a verified motion in which it was alleged that one Osborne, the county surveyor, ex officio drainage commissioner, should not be permitted to view or assess the lands described in the petition "on account of interest, bias, and prejudice of said Osborne in said proceedings, and against these affiants, which bias and prejudice and interest these affiants say exist, as they are informed, and verily believe." Neither of the last-mentioned motions was acted on at that time, and the cause was continued until the succeeding (February, 1911) term of court. At the next term, on February 25, 1911, the motion for a change of judge was stricken from the files for the reason, as shown by the record, "that appellants have no remonstrance on file." The proper exception was reserved. The motion in relation to the surveyor was overruled, and exception reserved, and over appellants' objection the petition was referred to the surveyor and two other drainage commissioners appointed by the court to make a report thereon pursuant to section 6142, Burns 1908. The drainage commissioners filed their report on March 4th and on March 14th appellants filed what purported to be a remonstrance, in which it was merely alleged that the commissioners' report was void because of the preceding action of the court in striking from the files the motion for a change of judge and the said motion in relation to the surveyor. On April 12, 1911, the regular judge, "by reason of the affidavit for change of venue from the court" theretofore filed by appellants, declined to further act in the cause and appointed a special judge who qualified and proceeded to hear and determine the matters in issue and ordered the ditch established. Appellants filed a motion for a new trial, which sets out the motion for a change of venue and that in relation to the surveyor and the court's action thereon, and assign the latter as reasons for a new trial. This motion was overruled, and proper exceptions reserved. Appellants filed no demurrer, objection, or remonstrance, except as above indicated.

In Smelzer v. Lockhart, 97 Ind. 315, it was held that all proceedings had by a justice of the peace in a cause after the presentation of a proper affidavit for change of justice were absolutely void, but this case was expressly overruled in Turner v. Conkey, 132 Ind. 248, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. Rep. 251, and in the course of the opinion it was said: "A wrong decision may constitute error, but it does not destroy jurisdiction. It is quite clear that the refusal of a judge of a superior court to call in another judge does not destroy jurisdiction, although it may be a palpable wrong entitling the injured party to relief in a direct attack. There is no valid reason why the same rule should not apply to an inferior tribunal." Peters v. Koepke, 156 Ind. 35, 59 N. E. 33.

Here the attack is direct, and the error in refusing to grant the change will be deemed prejudicial in the absence of a contrary showing.

[3] Appellants took no steps provided by the drainage act that would entitle them to any relief. The court had jurisdiction of the appellants and the subject-matter. Notwithstanding the palpable error of the court in refusing to call another judge before the drainage commissioners were appointed, appellants filed no remonstrance against their report, which, if deemed injurious, they had a right to do.

In Goodrich v. Stangland, 155 Ind. 279, 58 N. E. 148, where a defendant in a drainage proceeding had filed no remonstrance within the statutory period, it was held not reversible error to overrule a motion for change of judge because "the appellant had no standing in the court."

[1] It is claimed by appellees that appellants were not harmed by the action of the court in overruling the motion relating to the surveyor, because no fact was alleged in the motion which challenged the competency of the surveyor to act as one of the drainage commissioners. The statute pro- Section 8 of the act (section 6148, Burns vides for "objection * as to why 1908) provides that no person shall be "persaid drainage commissioner, * on ac-mitted to take advantage of any error, decount of * interest in said work, or fect or informality, unless the person comkinship to any person should not plaining thereof is directly affected thereby." act in the matter." Section 6142, Burns, supra. It contemplates the averment of

Appellants were not injured by any erroneous ruling of the court, as shown by the

defects, which this court, on appeal, must [ verdict is not sustained by the evidence. To disregard. Sections 6148, 700, Burns 1908. sustain his complaint appellee traced the tiJudgment affirmed.

ERWIN, J., dissents.

(55 Ind. App. 365)

SULLENGER v. BAECHER. (No. 7,842.)1 (Appellate Court of Indiana, Division No. 2. June 28, 1913.)

1. DEEDS (§ 8*)-TITLE OF VENDOR-BONA FIDE PURCHASER-STATUTES.

The grantee in a quitclaim deed from the grantor, who had been divested of his rights and interest by sale in bankruptcy proceedings, took no title unless he was a purchaser in good faith for a valuable consideration, within the meaning of the recording act, Burns' Ann. St. 1908, 3962. see Deeds,

cases,

tle from the government to a man named Henry L. Wheatley. He then introduced a tax deed for the land in question from the auditor of Knox county to himself, based upon a tax sale of the land as the property of Henry L. Wheatley. He also introduced a quitclaim deed from said Wheatley to himself for the same land. The original opinion holds that the tax deed was ineffective to convey title, and we are still content with this holding.

Upon petition for rehearing appellee calls. our attention to the fact that we did not in the original opinion discuss the effect of the quitclaim deed, and it is earnestly contended that this deed constitutes some evidence of [Ed. Note.-For other title sufficient to sustain the verdict of the Cent. Dig. §§ 13-18, 408-412; Dec. Dig. § 8.*1 jury. This question was not seriously press. 2. Vendor AND PURCHASER (§ 242*) - EvI-ed upon the consideration of the court by DENCE AS TO PURCHASE IN GOOD FAITH the original briefs, and for this reason it BURDEN OF PROOF. was not discussed in the opinion; but it was referred to in the briefs of appellee, and was sufficiently presented to save the question from being waived.

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The grantee in a quitclaim deed from a grantor, who had been divested of his rights and interest by sale in bankruptcy proceedings in establishing title under his deed, had the burden of proving that he was a purchaser in good faith and for a valuable consideration. without notice, either actual or constructive, of the rights of the person to whom the title of his grantor had previously passed.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. 8

242.*|

3. DEEDS (§ 121*)—QUITCLAIM DEED-EFFECT.
Except in so far as the grantee may be
protected by the recording acts, the effect of
a quitclaim deed is limited to the estate and
interest held by the grantor at its execution.
[Ed. Note. For other cases, see Deeds, Cent.
Dig. §§ 394-400; Dec. Dig. § 121.*]

4. VENDOR AND PURCHASER (§ 224*)-BONA

FIDE PURCHASER-FORM OF CONVEYANCE-
QUITCLAIM DEED.

The grantee in a quitclaim deed may be entitled to the protection afforded a bona fide purchaser.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. § 224.*]

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Evidence, in an action to establish title under a quitclaim deed from a grantor, who had been divested of his title by a sale and deed in bankruptcy proceedings, held insufficient to show a purchase in good faith and for value. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. § 244.*]

On petition for rehearing. Petition overruled.

For former opinion, see 101 N. E. 517. Benj. M. Willoughby and James M. House, both of Vincennes, for appellant. Samuel Wardell Williams, of Vincennes, and Charles E. Henderson, of Indianapolis, for appellee.

[1, 2] The quitclaim deed by which Henry L. Wheatley released and quitclaimed to appellee all his right, title, and interest in and to the land in question bears date of May 18, 1909. The evidence shows without dispute that on May 25, 1904, long prior to the execution of this deed, Henry L. Wheatley had been divested of all his title and interest in this land by a sale thereof in bankruptcy proceedings. Our attention is called to some minor defects and irregularities in the proceedings leading up to the execution of the deed of the trustee, but it is not contended that they are of such a character as

to render the deed void. The sale was con-
firmed by the bankruptcy court, and the deed
was sufficient to divest the title formerly
held by Wheatley, the bankrupt. This being
true, he had no title to convey at the time
he made the quitclaim deed to appellee, and
no title passed by this deed unless appellee
was at the time a good faith purchaser for a
valuable consideration, within the meaning
Burns
of the recording act of this state.
1908, § 3962.

[3] The burden rested upon appellee, as the plaintiff below, to establish his title; and, if he relied for that purpose on a deed from a former owner, executed after such owner had parted with the title, it was incumbent on him to prove that he was a purchaser in good faith and for a valuable consideration. This would require him to offer evidence to prove that at the time he received the conveyance he had no notice, either actual or constructive, of the rights of the person to whom the title of his grantor had previously passed. The deed executed by Wheatley to appellee on May 18, 1909, was a mere quitclaim deed. Except in so far as the grantee may be protected by the recording acts, the

LAIRY, J. Appellee recovered a judgment against appellant quieting his title to certain lands. The original opinion holds that the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

effect of such a deed is limited to the estate or interest held by the grantor at the time of its execution. Bryan v. Uland, 101 Ind. 477, 1 N. E. 52; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331.

Is the grantee in a quitclaim deed protected by the recording acts against prior unrecorded conveyances or incumbrances or other equities affecting the title of his grantor? Some cases have gone to the extent of holding that the character of the deed is of itself enough to warn the grantee that he is getting a doubtful title, and that such grantee is conclusively presumed not to be a purchaser in good faith such as will be protected by the registry laws. Snow v. Lake's Adm'r, 20 Fla. 656, 51 Am. Rep. 625; Beakley v. Roberts, 120 Mich. 209, 79 N. W. 193; Smith's Heirs v. Bank, 21 Ala. 125; Steele, etc., v. Bank, 79 Iowa, 339, 44 N. W. 564, 7 L. R. A. 524, 18 Am. St. Rep. 370.

[4] Other cases announce the doctrine that a grantee in a quitclaim deed is not precluded by the form of the instrument of conveyance from proving that he is a bona fide purchaser for value, and that if it is established by evidence that the grantee took the deed with no knowledge of any outstanding conveyance or obligations respecting the property, and without notice of any fact which, if followed up, would lead to such knowledge, he is entitled to the protection of a bona fide purchaser, upon further proof that the consideration stipulated has been paid, and that such consideration was a fair price for the land.or the interest designated as conveyed. Meikel v. Borders, 129 Ind. 529, 29 N. E. 29; Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350; Babcock v. Wells, 25 R. I. 23, 54 Atl. 596, 105 Am. St. Rep. 848, and note thereto.

We think that the doctrine last announced is more consonant with reason, and that it is supported by the weight of authority. The Supreme Court of this state has held that the grantee in a quitclaim deed may be entitled to the protection afforded a bona fide purchaser. Smith v. McClain, 146 Ind. 77, 84, 45 N. E. 41, 43. In the opinion in this case the court says: "While there is some conflict in the authorities upon this question, we think that the correct doctrine under the recording acts is that one may become a bona fide purchaser under a quitclaim deed the same as under any other form of conveyance."

[5] The fact alone that appellee accepted a quitclaim deed does not, in our opinion, conclusively show that he was not a goodfaith purchaser for value, and he was not thereby precluded from showing, if he could, that the consideration named in the deed and actually paid was the fair cash value of the land conveyed, and that at the time the deed was executed he had no knowledge of any unrecorded deed or other outstanding equities affecting the title. The burden was

upon appellee to establish such facts if he sought to bring himself within the protection of the recording statute providing that prior unrecorded conveyances shall be void as against any subsequent purchaser in good faith and for a valuable consideration. Burns 1908, § 3962.

The consideration which was named in the deed, and which was actually paid, as shown by the undisputed evidence, was $10. There is no evidence in the record tending to prove that this was a fair or reasonable price for the land or the interest therein designated. The evidence, therefore, not only fails to show that appellee was a good-faith purchaser for value under the quitclaim deed introduced in the evidence, but, on the contrary, it strongly indicates that he was not. If the verdict in favor of appellee is based upon the theory that he acquired title to the land in controversy under and by virtue of this deed, the evidence fails to sustain it upon that theory.

We have examined the other questions presented by the petition for rehearing, and we find no reason to change our views as expressed in the original opinion. Petition overruled.

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RECORD

(54 Ind. App. 71) DAUGHERTY v. REVEAL. (No. 8,051.) (Appellate Court of Indiana. June 27, 1913.) 1. APPEAL AND ERROR (§ 613*) BILL OF EXCEPTIONS-CERTIFICATE. The certificate of the shorthand reporter is not essential and does not determine the sufficiency of the bill of exceptions, but that fact is to be determined by the trial judge as a judicial act.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2702-2707; Dec. Dig. § 613.*1

2. APPEAL AND ERROR (§ 511*)-BILL OF EXCEPTIONS-FILING-ACTION SHOWN.

The filing of the bill of exceptions containder book entry or the certificate of the clerk. ing the evidence may be shown either by an or

[Ed. Note.-For other cases, see Appeal and Error; Cent. Dig. §§ 2319-2321; Dec. Dig. § 511.*]

3. APPEAL AND ERROR (§ 515*) - RECORDCERTIFICATE OF BILL OF EXCEPTIONS.

Where the bill of exceptions itself shows that it contains all the evidence in the cause and is duly certified and made a part of the record by the trial judge, the failure to state therein that it contains all the evidence is not a valid objection, for by signing the bill and ordering it made a part of the record he adopted it as his own judicial act, upon which all the statements become verities in the Appellate Court.

Error, Cent. Dig. §§ 2322-2325; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 515.*]

4. APPEAL AND ERROR (§ 613*) -RECORDS BILL OF EXCEPTIONS SUFFICIENCY CLERK'S CERTIFICATE.

-

OF

providing for the use of original bill of excepUnder Burns' Ann. St. 1908, §§ 657-660, tions embracing all the evidence, where it appears from the record that such bill was pre

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 33-36; Dec. Dig. § 11.*] 11. LIVERY STABLE KEEPERS (§ 10*)—HIRING

-ACTION FOR CONVERSION.

sented to the trial judge, allowed and signed by [ or is entitled to the immediate possession therehim, filed with the clerk of the trial court, who of and may sue for damages. on request shall embrace in the transcript such original bill of exceptions, a certificate that the transcript contained "full, true, and complete copies of all papers," etc., "and also the orig-11. inal bill of exceptions filed in the office of the clerk of circuit court," and which had previously been filed in open court, signed and sealed by the trial judge, which 'bill was then and there made a part of the record, was a substantial compliance with the statutes, making it appear with sufficient certainty that the bill signed by the judge and made a part of the record was the bill containing all the evidence

in the cause.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2702-2707; Dec. Dig. 613.*]

5. INFANTS (8 94*)-ACTION-PLEADING DEFENSE-NECESSITY.

Infancy may be pleaded either in abatement or in bar, depending upon the facts shown; and, where the facts show or do not deny a good cause of action but merely disclose that the party is a minor, the plea, if made, would be in abatement; but in an action of tort for damages against an infant, who appeared by attorney, filed a general denial, and participated in the trial, a suggestion in a motion for judgment that the evidence showed that he was a minor and that no guardian had been appointed for him would not authorize the court to direct a judgment in his favor.

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 289, 290; Dec. Dig. § 94.*] 6. LIVERY STABLE KEEPERS (§ 12*)-ACTION FOR WILLFUL INJURIES-JUDGMENT.

In an action by a livery stable keeper against an infant alleging either a negligent or willful injury to the horse hired by defendant, where there was no evidence showing that any such act by defendant was the proximate cause of the injury, a verdict for defendant as to such ground was properly directed.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 13; Dec. Dig. § 12.*] 7. INFANTS (§ 93*)-PLEADING DEFENSE.

The general rule is that the plea of infancy is a personal privilege which must be pleaded by the defendant in case the record does not disclose it.

[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 282-284, 286, 287; Dec. Dig. § 93.*]

8. INFANTS (8 46*)-CONtract.

Infants are not bound by their contract except for necessaries.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 98, 101-108, 110; Dec. Dig. § 46.*]

9. INFANTS (§ 59*)-TORTS.

Infants are liable for their torts resulting

in injury.

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[Ed. Note. For other cases, see Infants, Cent. Dig. §§ 161, 163-166; Dec. Dig. § 59.*] 10. BAILMENT (§ 11*)-CARE OF PROPERTY NEGLIGENT AND WILLFUL ACTS OF BAILEE. The law implies a duty on the part of the bailee to use ordinary care and diligence to protect the property from injury and to return it at the time and place agreed upon, though a mere neglect to perform such duty would not subject either a minor or an adult to a suit for conversion; but if the bailee does any willful and positive act in violation of such duty or in repudiation of the contract of bailment, to the injury or loss of such property, the bail

In an action by a livery stable keeper for conversion, it appeared that plaintiff hired a horse to defendant to go to the residence of a certain person, to be put in the barn and left there until his return, but that defendant on reaching there rode a mile and a half or two miles away and again went driving in the afternoon, that the horse was driven slowly and not in any way injured thereby. Held, that the deviation from the terms of the hiring were not sufficient to give the plaintiff an action for conversion.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 11; Dec. Dig. § 10.*] 12. LIVERY STABLE KEEPERS (§ 10*)-HIRING -ACTION FOR CONVERSION.

A livery stable keeper hiring a horse may sue in tort for damages to the property resulting from the violation of the contract or where the act or omission shows an attempt to convert the property and destroy or defeat his interest therein.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 11; Dec. Dig. § 10.*] 13. LIVERY STABLE KEEPERS (§ 10*)-ACTION FOR CONVERSION-QUESTION FOR JURY.

In an action by a livery stable keeper for the conversion of a horse hired to defendant, where there was no evidence tending to connect the death of the horse with any violation of the terms of the bailment or to show any intention to convert the property, there was no error in directing a verdict for defendant.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 11; Dec. Dig. § 10.*] 14. NEW TRIAL (§ 104*)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.

Newly discovered evidence cumulative in character and not curing the inherent weakness of appellant's case was not ground for a new trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.*] Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.

Action by Lewis M. Daugherty against Clyde Reveal. Judgment on a directed verdict for defendant, and plaintiff appeals. Affirmed.

R. P. Bundy, of Zionsville, for appellant. A. J. Shelby, of Lebanon, for appellee.

FELT, J. This suit was brought by appellant against appellee to recover damages for the death of a horse and the destruction of

a buggy. At the close of plaintiff's evidence the defendant moved the court to instruct the jury to find for the defendant because: (1) The evidence wholly fails to show any liability against the defendant, and (2) the evidence shows that the defendant is a minor under the age of 21 years and that no guardian ad litem has been appointed for him. The court sustained the motion and the jury returned a verdict accordingly. Appellant moved for a new trial on the ground that the verdict is not sustained by sufficient evidence and is contrary to law; newly discovered ev

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