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of the conclusions is correct, there is no deed is the consideration for the subsequent available error.

We concur in this contendeed. tion. "It is a general rule in this state that

[Ed. Note. For other cases, see Deeds, Cent.

§ when there are several rulings each must be Dig. $8 294-308; Dec. Dig. § 108.*]

5. APPEAL AND ERROR ($ 1040*)-HARMLESS separately challenged, and the exception

ERROR-ERRONEOUS RULINGS ON PLEADmust be taken to each. Where the objection

INGS. or exception in the court below or assignment Where proof of facts was admissible under of error in this court is joint as to several the general denial and the reply amounted to rulings or acts of the court, the same will answer, the overruling of a demurrer to the

no more than an argumentative denial of the fail unless valid as to all of such rulings or reply was not prejudicial. acts.” Saunders, Treasurer, v. Montgomery, [Ed. Note.-For other cases, see Appeal and 143 Ind. 185, 41 N. E. 453, and numerous

Error, Cent. Dig. SS 4089–4105; Dec. Dig. S

1040.*] authorities cited. No exception was taken or appeal brought 6. APPEAL AND ERROR ($ 959*)—PLEADING (

236*)-AMENDMENTS PLEADINGS–DISfrom the second conclusion of law for John CRETION-REVIEW. W. Tash on his cross-complaint. It must Burns' Ann. St. 1908, SS 403, 405, autherefore be taken as correct, and the general thorizing amendments by leave of court in its

discretion in furtherance of justice, vests in assignment of error overruled. No available the court discretion in allowing amendments error is presented by this record.

to pleadings to conform to the proof, and, in Judgment affirmed.

the absence of anything in the record to show an abuse of discretion, its rulings will not be disturbed.

[Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. $$ 3825-3831; Dec. Dig. 8 (53 Ind. App. 504)

959;* Pleading, Cent. Dig. SS 601, 605; Dec. HANLON V. CONRAD-KRAMMERER

Dig. § 236.*]
GLUE CO. (No. 8,011.)

Appeal from Circuit Court, Floyd Coun(Appellate Court of Indiana, Division No. 1. ty; William Ridley, Special Judge. June 4, 1913.)

Action by the Conrad-Krammerer Glue 1. COVENANTS (8 130*)-WARRANTY-BREACH Company against Thomas Hanlon. From a -DAMAGES.

judgment for plaintiff, defendant appeals. Though, on a total breach of covenant of Affirmed. warranty, the purchaser may generally recover the whole consideration paid, yet where Alexander Dowling, of New Albany, for there is a partial breach he may recover pro appellant. Evan B. Stotsenburg, John H. tanto only, and, where there is a failure of title to one of several tracts of land conveyed by Weathers, and George H. Hester, all of New the same deed, the grantee may recover the Albany, for appellee. consideration paid for the particular tract.

[Ed. Note.-For other cases, see Covenants, HOTTEL, P. J. This was an action by Cent. Dig. $ 245–253, 255, 256, 257; Dec. appellee to recover damages for an alleged Dig. $ 130.*]

breach of a covenant of warranty contained 2. COVENANTS (8 114*)—BREACH OF WAR- in a deed executed by appellant and wife to RANTY-COMPLAINT-CONSTRUCTION.

Where the complaint, in an action for appellee. The complaint is in a single breach of a covenant in a deed which recited paragraph, a demurrer to which was overrulthat the grantor for a specified consideration ed. There was an answer in denial and a conveyed and warranted land described and that the grantor quitclaimed to the grantee special answer setting up that the deed menother real estate described, alleged that the tioned in the complaint was executed withgrantor claimed to be the owner of the land out any consideration. To this answer, aftfirst described and conveyed the same by a deed er a demurrer thereto had been overruled, containing a covenant of warranty, and that he had no title, it sufficiently averred as against the appellee filed a general denial and a a demurrer that the consideration recited in special reply. A demurrer to the special the deed was paid for the tract first described, reply was overruled. There was trial by and that the tract subsequently described was jury which resulted in a verdict for appelquitclaimed without any consideration expressed therefor, and as against a demurrer the lee. Judgment was rendered on the verdict. grantee could recover the consideration speci- and from such judgment this appeal is fied.

prosecuted. [Ed. Note.-For other cases, see Covenants, Cent. Dig. $g 189–202, 263; Dec. Dig. $ 114.*] lied on present for our consideration the

The errors separately assigned and re3. EVIDENCE ($ 419*)-PAROL EVIDENCE- question of the sufficiency of the complaint, CONSIDERATION FOR DEEDS.

The consideration for a deed may be shown and the special reply to withstand the reby parol notwithstanding any recital therein of spective demurrers filed thereto, and the consideration.

ruling of the court in permitting appellee [Ed. Note.-For other cases, see Evidence, to amend its complaint after the close of Cent. Dig. 88 1912–1928; Deć. Dig. § 419.*] the evidence, by substituting the name of 4. DEEDS ($ 108*)–EXECUTION OF DEED TO the Baltimore & Ohio Southwestern RailCORRECT PRIOR DEED-EFFECT.

A deed made to correct a prior deed relates road Company for the name and in the back to the time of the prior deed and takes the place of the Baltimore & Ohio Southwestern place of it, and the consideration of the prior | Railway Company as the true and paramount owner of the tract of land alleged of one thousand dollars, the receipt of, which to have been conveyed by the appellant to is hereby acknowledged the real estate in the appellee. Appellee insists that such New Albany township, Floyd county, Inquestions are not presented because of the diana, described as follows, to wit:" Here failure of appellant, in the preparation of follows a description of the tract described his brief, to comply with rule 22 of this in appellee's complaint and at the end of court (55 N. E. V). We think such brief such description is a period. The deed then evidences a good-faith effort to comply with proceeds with a second clause of conveyance said rule, and that there has been such sub- as follows: "And said grantors convey and stantial compliance therewith as entitles ap- quitclaim unto said grantees the real estate pellant to a consideration of said questions. in Floyd county, Indiana, bounded as fol

· It is urged against the sufficiency of the lows:" Here follows a description of a seccomplaint that the deed filed as an exhibit ond tract not described or referred to in therewith shows that for the same considera- the complaint, except by way of reference to tion the appellant deeded two separate tracts such exhibit. It will be observed that there of real estate; that the complaint alleges are two separate independent clauses of conno defect of title as to the last tract describ- veyance in said deed, the first of which wared in such deed, and shows that appellee rants title and contains a consideration of still retains such tract and seeks to recover $1,000, and the second of which conveys and the entire consideration paid for both tracts. quitclaims with no consideration expressed

It is insisted in effect that the complaint therein. should have alleged either an offer to re- [3] Conceding, without deciding, that it convey such tract in which no defect of title should be presumed that the consideration is alleged, or that it should have alleged the expressed in the first clause of the deed, value of each tract and asked a recovery though separate and independent of said for such proportion of the purchase money second clause, was intended as an expression as the value of the tract in which the title of the consideration for the entire tract confailed bore to the value of the whole prem- veyed by such deed, yet such consideration ises deeded.

is always subject to explanation, and, when [1] It is no doubt true as appellant con- not correctly expressed in the deed, the true tends "that while upon a total breach of a consideration may be alleged and proved. covenant a purchaser may, as a general rule, Louisville Ry. Co. v. Renicker, 8 Ind. App. recover the whole consideration money, so 404, 413, 35 N. E. 1047; Cincinnati, etc., Ry. where there is a partial breach he may re- Co. v. McLain, 148 Ind. 188, 193, 44 N. E. cover pro tanto.” Rawle on Covenants for 306; Long v. Doxey, 50 Ind. 385; Railroad Title, pp. 85, 86, 87; 11 Cyc. 1159, 1163; Co. v. Worland, 50 Ind. 339, 341; Johnson Hoot v. Spade, 20 Ind. 326, 327; Moorehead v. McNabb, 7 Ind. App. 393, 397, 34 N. E. v. Davis, 92 Ind. 303, 306, and cases there 667; Hanover Fire Ins Co. v. Johnson, 26 cited ; Doyle v. Brundred, 189 Pa. 113, 119, Ind. App. 122–131, 57 N. E. 277. 120, 41 Atl. 1107; Lloyd v. Sandusky, 203 Appellee in his complaint alleges that on Ill. 621, 629, 68 N. E. 154.

the 9th day of April, 1908, appellant claimed It is said in 11 Cyc. 1163: "Where the to be the owner of the following described breach is only as to an aliquot and undivided real estate in Floyd county, Ind. (here folpart of the land attempted to be conveyed, the lows a description of the tract first described damages are in proportion to the whole in said deed alone). The complaint then proconsideration paid as that aliquot part of ceeds as follows: “On said 9th day of April, the land is to the whole thereof." The weak- 1908, said defendants, by their deed of conness of appellant's contention 'results from veyance of that date, duly executed and dehis interpretation of the averments of the livered, in consideration of one thousand dolcomplaint and the exhibit made part there- lars paid by this plaintiff, sold and conveyed of rather than from any misconception or to this plaintiff the said above described real misapplication of the law governing in such estate in Floyd county, Indiana.” It will be cases.

observed that the complaint expressly avers While it is true that the deed filed as an that the consideration paid for the tract, the exhibit with appellee's complaint shows a title to which is alleged to be defective, was single consideration and that two pieces of $1,000. This averment was admitted by the real estate are conveyed therein, one of demurrer to be true, and the question which which is not mentioned in appellee's com- appellant attempts to raise on the complaint plaint, the wording of this deed would indi-is by its express averments made a question cate that the consideration mentioned was of fact for the jury to determine under the for the first piece described therein alone, evidence. Where there is a failure of title and it is the piece described in appellee's to one of several tracts of land conveyed by complaint.

the same deed, the vendee can recover the [2] The language of the deed affecting the consideration paid for such particular tract. question under discussion is as follows: Wright v. Nipple, 92 Ind. 310, 314; Wood v. "This indenture witnesseth, that Thomas Bibbins, 58 Ind. 392, 396; Wilson v. Peelle, Hanlon and * * * wife

con- 78 Ind. 384, 388; Overhiser v. McCollister, vey and warrant unto

for the sum 10 Ind. 41, 44; Burton v. Reeds, 20 Ind. 87, 102 N.E.-4




94; Lloyd v. Sandusky, 203 Ill. 621, 68 N. E. no application by appellant for a continu: 154.

ance after the amendment was made, and [4] The reply alleged in brief that the ap- that the evidence is not in the record, there pellant represented to appellee that he was is nothing disclosed by the record from the owner of the tract of land described in which this court can say that the trial court, the complaint (also described in such reply) in permitting such amendment, abused the and offered to sell the same to appellee for discretion lodged in it by the sections of stat$1,000, in consideration of which sum appel- ute, supra. This conclusion is supported by lant agreed to execute to appellee a warranty the authorities just cited. We find no availdeed for such tract; that appellee accepted able error in the record. such offer and paid appellant the $1,000, in Judgment affirmed. consideration of which the appellant executed a deed which is set out in the reply. It is then averred that by such deed appellant intended to deed and include in the warranty KNIGHT v. NICHOLAS et al. (No. 8,019.) therein the real estate before described, being the same as that set out in the complaint (Appellate Court of Indiana, Division No. 2.

June 5, 1913.) and that which the appellant had undertaken to deed for said sum of $1,000; that by mu- 1. JURY ($ 14*)—RIGHT TO TRIAL BY JURY

MECHANICS' LIENS. tual mistake of the parties such deed covered

Since a suit to enforce a mechanic's lien only a part, etc.; and that the deed men- is equitable, the fact that defendant gave a tioned in the complaint was made to correct bond to release the property from the lien does said first deed. These facts clearly show that not make the action one for money only, tri

able by jury. the deed filed as an exhibit with the com

[Ed. Note.-For other cases, see Jury, Cent. plaint was made to correct a previous deed Dig. $$ 40-60, 66-83; Dec. Dig. § 14.*s by which it had been intended to deed the 2. TRIAL (8 405*)—CONCLUSIONS OF LAWreal estate described in the complaint, and EXCEPTION. that the consideration originally paid for fendants, error was assigned to the first and

In an action in which there were two desuch real estate was $1,000. A deed

A deed of cor- third conclusions of law; the second being farection relates back to the time of the orig- vorable to defendant K. After the signature of inal conveyance and takes the place of it. the judge to the conclusions of law, the record Pittsburgh, etc., Co. v. Beck, 152 Ind. 421. showed the entry, "to all of which defendant

, K.

Held, 428, 53 N. E. 439. It follows that the consid- that the exception, though separate as to deeration of the first deed was likewise the fendant K., was joint as to the conclusions of

law. consideration for the last, and that the facts set up in such reply, if necessary to be spe- Dig. $$ 963-965, 967; Dec. Dig. § 405.*]

[Ed. Note. For other cases, see Trial, Cent. cially pleaded, were sufficient to avoid ap- 3. TRIAL ($ 405*)–CONCLUSIONS °F LAWpellant's answer of no consideration.

JOINT EXCEPTION. [5] Of course, if proof of the facts so A joint exception to more than one conpleaded were admissible under the general clusion of law presents no question if any one

is correct. denial, and the reply amounted to no more

[Ed. Note.-For other cases, see Trial, Cent. than an argumentative denial of the answer, Dig. S$ 963–965, 967; Dec. Dig. § 405.*) no harm could have resulted from overruling the demurrer thereto. Appellant also insists

Appeal from Circuit Court, Clay County; that the deed set out in the reply, like that John M. Rawley, Judge. filed with the complaint, shows but one con

Action by Howard Nicholas and others sideration for the two tracts and urges against Frank A. Knight. From a judgment against the reply the same objections urged for plaintiffs, defendant appeals. Affirmed. against the complaint. The reply avers that McNutt & Shattuck, of Brazil, for appelthe $1,000 consideration was in fact paid for lant. Jacob Herr and F. W. Hutchinson, the tract, the title to which is alleged to be both of Brazil; for appellees. defective; and what we have said in discussing the sufficiency of the complaint ap- ADAMS, C. J. This was an action by applies with equal force to this objection to the pellees against appellant and the Knightreply.

Brinkerhoff Piano Company to enforce the [6] It may be said with reference to the collection of a balance claimed to be due third error before indicated that the statute appellees as contractors in the erection of gives the trial court a very wide discretion certain buildings for the piano company, and in the matter of amendments of the plead-to foreclose a mechanic's lien thereon. Beings to conform to the proof. Burns' R. S. fore the issues were closed, appellant, pur1908, S8400, 403, and 405; Cleveland, etc., suant to section 8304, Burns 1908, filed his Co. v. Miles, 162 Ind. 646, 655, 70 N. E. 985; bond with surety, conditioned as provided by Citizens', etc., Co. v. Heath, 29 Ind. App. law, which bond was approved by the court, 395, 399, 62 N. E. 107, and cases there cited; and the property released from the lien. Wood v. Bibbins, supra.

On request, the court made a special finding In view of the fact that the record shows of facts, stated conclusions of law thereon

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favorable to appellees, and rendered judg-12. JUDGMENT ($ 163*)-DEFAULT JUDGMENTment accordingly.

MOTION TO VACATE-HEARING. The errors assigned are that the court of a default on a definite theory, filing an affi

Where defendants moved for the vacation erred: (1) In overruling appellant's motion davit in support thereof, affidavits, subsequently for a new trial; (2) in stating its conclusion | filed in support of the motion, which did not of law No. 1; (3) in stating its conclusion of support the facts 'stated in the original affilaw No. 3.

davit, cannot be considered, for a party must

proceed upon some definite theory and stand [1] Under the first assignment of error, the or fall thereon. only point presented is that the court erred [Ed. Note. For other cases, see Judgment, in overruling appellant's motion for a trial Cent. Dig. & 323; Dec. Dig. 163.*] by jury. The record recites that “defendants Appeal from Superior Court, Lake Couneach move the court for a trial by jury, as ty; John A. Gavit, Special Judge. a matter of right, and the court does now Action by Ernst Tosetti and others against overrule each defendant's motion, and trial Paul Vapinski and another. There was a by jury denied.” Appellant insists that, as default judgment for plaintiffs, and, froro the lien was discharged by the filing of the an order denying defendants' motion to open · bond, the action then became an action at the default, they appeal. Affirmed. law to recover money only, and was properly triable by a jury. This position is not ten

James W. Brissey, of Indiana Harbor, for able. The essential nature of an action to appellants. Reilly & Hardy, of Hammond,

for appellees. foreclose a mechanic's lien is equitable and has always been instituted in this state by a bill in equity. The character of the action

LAIRY, J. This appeal is taken from a cannot be changed during its progress. Scott judgment refusing to set aside a default and v. Goldinghorst, 123 Ind. 268, 271, 24 N. open up a judgment rendered by the court E. 333; Albrecht v. Foster, etc., Co., 126 Ind. in favor of appellee and against appellants 318, 319, 26 N. E. 157.

on April 28, 1909. Appellant Paul Vapinski, [2, 3] As to the second error assigned, the on the 1st day of August, 1910, filed his mocourt, on its findings of fact, stated three tion supported by affidavits by which he conclusions of law, of which the first and sought to be relieved from such judgment upthird are assigned as error. The second con- on the ground that the default was taken clusion was favorable to the Knight-Brink- and the judgment rendered against him erhoff Piano Company. Immediately follow through his mistake, inadvertence, and exing the signature of the trial judge to the cusable neglect. The proceeding is based upconclusions of law, the record shows this on section 405, Burns 1908. entry: “To all of which the defendant Frank

[1] Appellant wholly fails to disclose such A. Knight now excepts separately and sever- a case of mistake, inadvertence, surprise, or ally.” In view of the fact that there were excusable neglect as will entitle him to retwo defendants, the exception must be deem- lief under the provisions of the statute to ed to be several as to the defendant, Knight, which we have referred. The portion of his but joint as to the conclusions of law. It is affidavit which relates to this subject is as well settled that a joint exception to more follows: “That after said suit was filed in than one conclusion of law presents no ques- the above cause this affiant desired to retion if any one is correct. In the case at bar. sist the same, and in conformity to such only the first and third conclusions of law desire did employ and pay a retainer fee to are assigned as error. The joint exception T. M. C. Hembroff, who was a first-class atmust therefore fail. Taylor v. Canaday, 155 torney and in good standing at this bar; that Ind. 671, 676, 57 N. E. 524, 59 N. E. 20; Ra- it was the intention and desire of this affider v. Sheets, 26 Ind. App. 479, 480, 59 N. E. ant that this action should be resisted, and 1090; Schrage v. McCoy, 28 Ind. App. 434, all due preparations made to combat the 436, 63 N. E. 50.

same; that affiant fully believed that his Judgment affirmed.

attorney would prepare his defense in due time, but he did not do so, and failed to en

ter his appearance in such case, all without (53 Ind. App. 547)

the knowledge of this affiant; and that thereVAPINSKI et al. v. TOSETTI et al.

after, to wit, on the 25th day of April, 1909, (No. 8,021.)

judgment by default was taken against this (Appellate Court of Indiana, Division No. 2. plaintiff and his said wife, and in the sum June 6, 1913.)

of $2,340.90, by plaintiff in said cause." The 1. JUDGMENT (8 143*)-DEFAULTS-VACATION courts of this state have repeatedly held that -NEGLIGENCE.

The negligence of the attorney is the negli- the negligence of the attorney is the negligence of the client, and a default suffered gence of the client, and that a default sufferthrough the negligence of an attorney will not ed through the neglect of an attorney will be set aside unless facts are stated which show not be set aside, unless facts are stated such neglect to be excusable.

which show such neglect to be excusable. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 8$ 269, 270, 272-291; Dec. Dig? Carr v. First National Bank, 35 Ind. App. § 143.*]

216, 73 N. E. 917, 111 Am. St. Rep. 159;

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Moore v. Horner, 146 Ind. 287, 45 N. E. 341, mandatory and each informs the jury that and cases there cited.

plaintiff was entitled to recover in the event [2] Subsequent to the filing of his motion that she had proved certain facts by a fair and affidavit, appellant filed two additional preponderance of the evidence. Freedom of affidavits in support of his motion. The facts the plaintiff from contributory negligence stated in these affidavits do not support the was not mentioned or enumerated as one of facts stated in the affidavit of appellant up- the facts necessary to be proved in order to on which the motion to set aside the judg- entitle her to a recovery. ment is based. The facts stated in these affi- [1] In action for damages resulting from davits cannot be considered. Appellant must personal injuries or the death of any perproceed upon some definite theory, and he son, 'contributory negligence is a defense, the must stand or fall on the facts stated in his burden of proving which is placed, by stataffidavit upon which the motion is based. ute, upon the defendant. Burns 1908, § 362.

The judgment of the trial court is cor- The rule as to the burden of proof on the rect, and the judgment is affirmed.

question of contributory negligence as it formerly existed in this state is not changed by

this statute in any cases which do not fall. (54 Ind. App. 512)

within one of the classes enumerated in the RHEA V. SAWYER. (No. 8,017.) 1 act. Cincinnati, etc., Street R. Co. v. Klump, (Appellate Court of Indiana, Division No. 2. 37 Ind. App. 660, 77 N. E. 869; Cleveland, June 4, 1913.)

etc., St. R. Co. V. Stevens, 96 N. E. 493. 1. NEGLIGENCE ($ 122*)–CONTRIBUTORY NEG- In cases such as this the burden of alleging LIGENCE-BURDEN OF PROOF.

and proving that the plaintiff was free from Burns' Ann. St. 1908, § 362, providing that, in actions for personal injuries or death fault contributing to the injury rests with of any person, contributory negligence shall such plaintiff, and there can be no recovery be a matter of defense the burden of proving in the absence of such proof. which is on defendant, does not change the rule

[2] The instructions in question were all as to the burden of proof on the issue of contributory negligence in other cases, and plain- fatally defective for the reason that they tiff in other cases must to recover allege and authorized a recovery by the plaintiff withprove freedom from contributory negligence.

out requiring the jury to find as a prerequi[Ed. Note. For other cases, see Negligence, site to such recovery that plaintiff was not Cent. Dig. SS 221-223, 229-234; Dec. Dig. Ś 122.*)

guilty of contributory negligence. Dudley

. . , 2. TRIAL ($ 296*)-INSTRUCTIONS-ERROR IN et al. v. State, 40 Ind. App. 74, 81 N. E. 89; ONE INSTRUCTION CURED BY ANOTHER.

Voris v. Shotts et al., 20 Ind. App. 220, 50 The error in an instruction, arising from N. E. 484. the fact that it authorizes a recovery by plain

It has been frequently held that the error tiff without requiring a finding as a prerequisite that he was free from contributory negligence, contained in these instructions cannot be cannot be cured by other instructions correctly cured by the giving of other instructions corstating the law.

rectly stating the law. Nickey v. Steuder, [Ed. Note.-For other cases, see Trial, Cent. 164 Ind. 189, 73 N. E. 117; Rahke v. State, Dig. $$ 705–713, 715, 716, 718; Dec. Dig. $168 Ind. 615, 81 N. E. 584; Lake Shore, etc., 296.*]

R. Co. v. Johnson, 172 Ind. 548, 88 N. E. 849. Appeal from Circuit Court, Wells County ; Upon the authority of the cases cited, we Charles E. Sturges, Judge.

are constrained to reverse the judgment of Action by Litta Sawyer against Thomas J. the trial court, with directions to sustain Rhea. From a judgment for plaintiff, de appellant's motion for a new trial. fendant appeals. Reversed for new trial. Abram Simmons and Frank C. Dailey, both

(53 Ind. App. 490)

TIMMONS v. KENRICK. of Bluffton, for appellant. William H. Eich

(No. 7,978.) horn and Edwin C. Vaughn, both of Bluffton, (Appellate Court of Indiana, Division No. 2 for appellee.

June 3, 1913.) 1. ASSAULT AND BATTERY ($ 43*)-ACTIONS

INSTRUCTIONS. LAIRY, J. Appellee recovered a judgment

An instruction that if defendant requested in the Wells circuit court for damages re- plaintiff to have sexual intercourse with him, sulting from the death of two colts. The in a rude and insolent manner and with force complaint is in two paragraphs, both of took hold of her, hugged and kissed her, felt which proceed upon the theory that appellant clothing, all of 'the time imploring her to have

of her breasts, and attempted to raise her was guilty of negligence in castrating the sexual intercourse, all of which was against colts, and that they died as a result of such plaintiff's will, to find for plaintiff, without negligence. Appellant relies for reversal up- stating that the assault and battery' must be

unlawful, was proper since every assault and · on the fifth, ninth, and tenth causes assigned battery is unlawful, and the province of the for a new trial. Those assignments call in jury is to find the facts as to the acts constiquestion the correctness of the first, fifth, and tuting assault and battery, and not to decide sixth instructions given by the court at the whether such acts are unlawful. request of appellee. All of these instructions All of these instructions and Battery, Cent. Dig. $$ 57–59, 61, 62;

[Ed. Note.-For other cases, see Assault are open to the same objection. They are all | Dec. Dig. 8 43.*]

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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