the school trustees shall furnish temporary aid for such purpose," which shall be repaid on the certificate of said officers by the county commissioners, does not authorize a school corporation to contract a debt on behalf of the county with a third person for furnishing such supplies.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Action by Julius Falk against the board of commissioners of Miami county. From a judgment for plaintiff, defendant appeals. Reversed.

John Mitchell, for appellant.

ROBINSON, J. Appellee's complaint avers that appellant is indebted to him in the sum of $562.18 for wearing apparel consisting of clothing, shoes, hats, and caps furnished to children of school age whose parents were too poor to furnish necessary clothing to attend school; that such merchandise was furnished at the request of the board of school trustees of the city of Peru as temporary aid for such purpose, appellant having made no provision therefor, and a full list of the children so aided at once made out and filed with the county auditor by the school trustees; that in May, 1900, appellee filed with the auditor his claim, to which was attached the certificate of the school trustees, which claim was disallowed by appellant. A bill of particulars and the certificate of the school trustees are made exhibits. This certificate, signed by the members of the board of school trustees, recites that the goods were furnished by appellee to school children of the city of Peru whose parents were too poor to furnish such children with the necessary books and clothing with which to attend school, and were furnished at the board's request, and on the board's order, and that appellee has not been paid for the same. Section 6 of the act of March 6, 1899 (Acts 1899, p. 550), provides: "If any parent, guardian or custodian of any child or children is too poor to furnish such child or children with the necessary books and clothing, with which to attend school, then the school trustee of the township, or the board of school trustees or commissioners of the city or incorporated town where such parent, guardian or custodian resides, shall furnish temporary aid for such purpose, to such child or children, which aid shall be allowed and paid upon the certificate of said officers by the board of county commissioners of said county. Such township trustee or board of school trustees or commissioners, sball at once make out and file with the auditor of the county a full list of the children so aided, and the board of county commissioners, at their next regular meeting, shall investigate such cases and make such provisions for such child or children as will enable them to continue in school as intended by this act." The right here sought to be enforced is purely statutory, and the above is the only statutory provision for furnishing

aid to school children whose parent, guardian, or custodian is too poor to furnish them with the necessary books and clothing with which to attend school. The general rule is well settled that a person seeking to enforce a right given by a statute must show himself to be within its terms. The statute plainly directs that the school corporation shall furnish temporary aid for such purpose, and this temporary aid so furnished shall afterwards be allowed and paid by the board of county commissioners upon the certificate of the officers of the school corporation. It does not vest any power in such school corporation to contract a debt on behalf of the county in favor of third persons for such supplies. The legislature has placed the determination of the necessity for furnishing such temporary aid with the officers of the school corporation, and, when they have filed with the county auditor a list of the children so aided, it then becomes the duty of the board of county commissioners to investigate such cases, and make such provision for the children who have been thus aided as will enable them to continue in school. After the school officers have furnished such aid, the statute provides how they shall be repaid. "This part of the section," said the court in Shelby County Council v. State, 155 Ind. 216, 57 N. E. 712, "evidently contemplates nothing more than the reimbursement of the school city, school trustee, or city commissioners for moneys properly laid out by them in furnishing books and clothing to the children of poor parents," etc. As the complaint fails to show a right of action in appellee, the demurrer should have been sustained.

2. Under Burns' Rev. St. 1901, § 662, declaring that all proper entries made by the clerk shall be deemed parts of the appeal record, where the appeal is alleged to have been taken from an interlocutory order from which an appeal would lie, such order must be shown by an entry of record, transcribed and certified by the clerk, and not merely by recital of its substance or purport in the bill of exceptions.

Appeal from circuit court, St. Joseph county; G. W. Funk, Judge.

Action by Frank Mikesell, as administrator, against South Bend Electric Company.

1. See Appeal and Error, vol. 3, Cent. Dig. 2321; Exceptions, Bill of, vol. 21, Cent. Dig. § 62.

Froin an interlocutory order, staying further proceedings until payment of costs in a prior suit, plaintiff appeals. Dismissed.

C. A. Davey and A. D. Harris, for appellant. Brick & Bates, for appellee.

BLACK, J. The record before us shows the filing of appellant's complaint, which is set out, for the recovery of damages for the death of his intestate through the alleged negligence of the defendant, the appellee. Next after the complaint in the transcript is the entry of the filing by the plaintiff of his bill of exceptions, on the 4th of February, 1901, being the first Juridical day of the February term, 1901; and immediately following this entry is the bill of exceptions, after which is the clerk's final certificate to the transcript. The clerk has not transcribed and certified any record entry of any judgment or order or of any proceedings, except as above indicated. In the bill of exceptions there is a recital of an order as follows: "Be it remembered that afterwards, on the said 16th day of November, 1900, the same being the eleventh juridical day of said term of court [the November term, 1900], and before the judge aforesaid, the following further proceedings were had in said cause, to wit: Issue being joined, parties by their attorneys appeared before said court, and after argument of counsel thereon, and upon due consideration of said court, the court ordered and adjudged that said proceedings be suspended until the costs of the former suit are paid, and further ordered and adjudged that said costs must be paid on or before February 1, 1901, or said cause shall be dismissed; to which ruling the plaintiff then excepted, and prayed an appeal from said ruling of said court to the supreme court of the state of Indiana, and at which time asked for sixty days' time in which to file bill of exceptions, which time was granted by said court." The matter thus referred to as having been tried, as indicated by preceding portions of the bill of exceptions, was a motion of the defendant, the appellee, for an order staying further proceedings and the trial of this cause until the costs of a former action voluntarily dismissed by the plaintiff, the appellant herein, should be paid, and fixing a time within which said costs should be paid by the plaintiff, the appellant; which motion was heard, as so stated in the bill, upon atidavits of the contending parties. There is nothing in the bill or elsewhere in the transcript indicating that any judgment or order was subsequently rendered or made, except that it is indicated in the bill that on the 1st day of the February term, 1901, the court, upon the mutual agreement of the parties, extended the time for filing the bill until the 5th day of February, 1901. The transcript of the record on appeal was filed in the supreme court on the 31st of May, 1901. It is from the order staying proceedings so referred to in the bill of exceptions that the ap

pellant has sought to appeal, and he has denominated it as a term-time appeal from an interlocutory order.

Passing by, as unnecessary to the disposal of the cause, the inquiry as to whether the order in question is such an interlocutory order as is contemplated by the statutory provision for appeals from interlocutory orders in certain specified instances, and also the question whether the appeal was perfected in the time required for appeals from interlocutory orders, we will contine our decision to certain objections to the condition of the transcript pointed out and insisted upon by counsel for appellee.

It is shown by the entry of record above mentioned that the bill of exceptions was filed after the term at which the order in question was made, as stated in the bill; but there is no record entry transcribed by the clerk showing the giving of time beyond the term for the presentation or filing of a bill of exceptions. The want of such record entry is sufficient to exclude the bill from the consideration of the court. The order granting time beyond the term for the completion of the bill must appear by an entry of record, and a statement in the bill itself that time was given is not sufficient. Hancher v Stephenson, 147 Ind. 498, 46 N. E. 916; Ewbank, Man. §§ 24, 33; Elliott, App. Proc. § 801.

As the original granting of time beyond the term could not be effectively shown by the bill itself, and as it was not shown by a record entry, and therefore did not appear, a judicial order for an extension of that time could not be shown adequately by a mere recital in the bill, though therein stated to have been made upon agreement of the parties. The judicial action of prescribing time be yond the term for a bill of exceptions should be shown outside the bill itself.

There is another reason why the question whether or not the court exercised properly its discretion in staying the proceedings cannot be examined by us. All proper entries made by the clerk are, under the requirement of the statute, to be deemed parts of the record on appeal. Burns' Rev. St. 1901, § 662. If the order here in question be an interlocutory order, from which an appeal would lie, it should be shown by an entry of record transcribed and certified by the clerk, and not merely by a recital of its substance or purport in a bill of exceptions. It certainly is a part of the duty of the clerk to enter of record any order from which an appeal will lie, and to authenticate such entry by his certificate to the transcript for appeal. Such a proper entry is an essential part of the record, and the certificate thereof is necessary to a complete and perfect transcript on appeal. Gray v Singer, 137 Ind. 257, 36 N. E. 209, 1109; Home Electric Light & Power Co. v. Globe Tissue Paper Co., 146 Ind. 673, 681, 45 N. E. 1108; Bowen v. State, 108 Ind. 411, 9 N. E. 378.

As the transcript does not properly show

any judgment or order from which an appeal has been taken, the appeal is hereby dismissed.

(31 Ind. App. 195)

TOWN OF CROWN POINT v. THOMPSON, 1

(Appellate Court of Indiana, Division No. 1. Oct. 28, 1902.)

HIGHWAYS OBSTRUCTIONS INJURIES
KNOWLEDGE OF DANGER-CONTRIBU-
TORY NEGLIGENCE-PLEADING.

1. Where a complaint in an action against a town alleged that the town authorities negli gently permitted a large flag to be suspended across the street in a most public place, and that the flag was a dangerous obstruction to the street, and was likely to frighten gentle horses, and that, while plaintiff was driving in the street, as her horse approached and attempted to go under it, the horse became frightened and unmanageable, throwing plaintiff to the street, and causing her injuries, the complaint showed on its face that plaintiff was guilty of contributory negligence in attempting to drive under a known dangerous obstruction, and was therefore demurrable.

Appeal from circuit court, Porter county; A. D. Bartholomew, Special Judge.

Action by Maggie A. Thompson against the town of Crown Point. From a judgment in favor of plaintiff, defendant appeals. versed.

Willis C. McMahan, for appellant.

Re

HENLEY, P. J. Appellant prosecutes this appeal from a judgment rendered by the Porter circuit court in favor of appellee against the appellant, for $450. Her action was for damages for personal injuries sustained by her from being thrown from her buggy while driving on appellant's streets, it being alleged that her horse became frightened and ran away on account of an obstruction permitted by appellant to remain in its streets. The complaint was in three paragraphs, which were substantially the same, in so far as they relate to the question herein discussed and decided. The first paragraph of the complaint, omitting the caption, is as follows:

"The plaintiff in said cause, Maggie A. Thompson, complains of the defendant, the town of Crown Point, and avers that she is now the wife, and was the wife on June 3, 1897, of David H. Thompson, and that their home is, and was at said date, near Leroy, Lake county, Indiana. The defendant, the town of Crown Point, was a municipal corporation in the month of June, 1898, and was such corporation many years prior to that date, and is now such municipal corporation, organized under the laws of the state of Indiana, and is known as the county seat of Lake county, Indiana. The plaintiff further avers that said defendant did in the month of May, 1898, permit to be put up a large United States flag, to wit, forty feet long by twenty-five feet wide, by means of a rope attached to said flag, over Main street, and across the same at a point opposite the courthouse, on the 'Rehearing denied, 67 N. E. 555.

public square, and George Strabel's grocery store, on the east side of Main street, so that the same hung within six feet of the ground or street, and wrongfully and negligently permitted the same to remain up, with full knowledge thereof; that said flag wrongfully and negligently so suspended reached nearly across said street, and waved in folds and fluttered in every breeze many times a day, and said flag continued suspended in the manner and form aforesaid with the full knowledge, permission, and consent of the said defendant, its trustees and officers, for a period of thirty days from the time it was put up, in the month of May, 1898; that Main street at the place aforesaid was on said date, and since said time, the main business thoroughfare or street in the said town of Crown Point, and the same was then generally traveled by horses and carriages, horses and wagons, and was then the most frequented with horses, teams, and carriages of any other place or street in the said town of Crown Point, and that said place where said flag was hung and left flying was then a continual business place, on account of the trade and traffic going on all the time with the many and various stores on the east side of said Main street, and in the immediate vicinity of said waving flag; that said flag, whether waving or not, was a dangerous obstruction to said street and to the trathic at said place on said street, in this: that it caused trusty and gentle horses to become frightened and unmanageable by the drivers, and that the same was an object that would frighten and make unmanageable all kinds of horses drawing loaded wagons, carriages, or vehicles of any kind or description, when driven or standing upon said street at the place where said flag was suspended as aforesaid, and in the vicinity thereof. The plaintiff further avers that ou the 3d day of June, 1898, that she drove a well-broken and gentle farm horse along said Main street, hitched to a top carriage, where she had business to do, and near to and at the place where said flag was wrongfully, negligently, and unlawfully suspended, which was fully known to the said defendant and its officers, and where said defendant carelessly, wrongfully, negligently, and unlawfully permitted it to be suspended, and the said flag waving, when said plaintiff's horse approached the same to go under it or by it, became frightened and unmanageable, and violently shied to one side of said street where said flag hung, and caused the said carriage to collide with another vehicle, which caused her said carriage to upset and throw her (the plaintiff) violently to the paved street at the place where the said flag was negligently suspended, and which caused her great and severe physical injuries, to wit, to her head, which struck the pavement with great force, which bruised the scalp and flesh and muscles of the head, and completely stunned her and made her unconscious, and she remained unconscious for several consecutive hours, and her

under it. Applying the law as here stated to the averments of appellee's complaint, we must hold each paragraph of this complaint insufficient.

Judgment reversed, with instructions to the trial court to sustain appellant's demurrer to the first, second, and third paragraphs of complaint.

(29 Ind. App. 658)

UNION CENT. LIFE INS. CO. v. WHETZEL.

(Appellate Court of Indiana, Division No. 1. Oct. 28, 1902.)

LIFE INSURANCE POLICY-NONPAYMENT OF PREMIUMS FORFEITURE - WAIVER - EXTENSION OF TIME BY AGENT-AUTHORITYPAID-UP POLICY-DEMAND.

1. A demand for a paid-up policy is properly made on the general agent of a life insurance company, though he has no authority to issue policies, the original policy not requiring its surrender to any particular person when a paidup policy is desired.

2. A life insurance company, which accepts overdue premiums, cannot say that its agent had no authority to extend the time for a payment of premiums beyond maturity, though the policy forbids its modification, or the waiver of a forfeiture, except in writing, signed by certain officials.

3. In an action to recover the value of a paid-up life policy, which plaintiff claimed should have been issued to him, evidence considered, and held to sustain a finding that the time for payment of a premium on the original policy had been extended, during which extension the demand for the paid-up policy was made; and hence that the demand was made while the original policy was in force, and was in time.

Appeal from circuit court, Noble county; Joseph W. Adair, Judge.

Action to recover the value of a paid-up life policy by Andrew E. Whetzel against the Union Central Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. W. Welker, for appellant. Henry C. Peterson, for appellee.

ROBINSON, J. Appellant issued to appellee a policy insuring his life in the sum or $1,500 for 10 years from September 15, 1889, agreeing to pay him that sum September 15, 1899. The policy was issued in consideration of the statements made in the application "and of the present payment of the sum of $678.25, and of the payment of $135.65 at the home office of the company on or before the 30th day of September, 1894, at noon, and of the like payment of the same amount annually thereafter during the term of five years, and of the payment when due of any and all notes given for premiums or parts of same." The policy further states that "the premium upon this policy, the receipt whereof has been acknowledged, has been paid by $135.65 cash and four notes for $135.65, each, bearing even date, with mortgage securing the same, payable, respectively, on September 15, 1890, 1891, 1892, and

1893." The policy further provides that "failure to pay any one of said notes at maturity will give the company the right, at its election, to avoid this policy, with all of its provisions, and the note or notes past due at the date of the exercise of the election to cancel the policy will be payable, with interest to date of payment, as premium for the period of actual insurance up to the date of cancellation upon the books of the company, and the remaining notes, if any, will thereupon, on surrender of the policy, be surrendered to the maker." It is also provided that "after three years' premiums have been paid, except in case of failure to pay at maturity a premium note, the company will, upon legal surrender of this contract while in force, issue a paid-up nonparticipating policy for an amount equal to as many tenths of the amount insured as there have been annual payments made on this policy at the date of surrender. In case no legal surrender has been made as above provided, and provided the insured has paid at maturity all notes given for premiums, then this policy shall (after three full years' premiums have been paid), without surrender, become a paid-up term policy" for a period to be determined in a manner therein specified. The first clause of certain conditions requires that all premiums or premium notes shall be paid on or before the days upon which they become due, at the company's home office, or to an authorized agent. The sixth clause of these conditions provides that, "Upon the violation of the foregoing conditions, this policy shall be null and void, without action on the part of the company." The eighth clause specifies that the policy and application set forth the complete contract of insurance; that none of its terms can be modified, "nor any forfeiture under it waived, save by an agreement in writing signed by the president, vice president, or secretary of the company." The complaint avers that appellee paid the first five premiums before maturity, and before another premium became due he offered to make a legal surrender of the policy, and at the same time demanded of the company a paidup nonparticipating policy for five-tenths of the face of the policy, and that the com pany refused to receive the surrender of the policy, and also refused to issue the paid-up policy; that, if appellant had issued to him the policy as demanded, it would have become due and payable to him on the 15th day of September, 1899, in the sum and of the value of $750; that on the 28th day of October, 1889, appellee borrowed $1,500 of appellant, and assigned the policy to it as collateral security, which policy was so held by appellant until the 27th day of October, 1899, at which time the loan was paid without recourse to the collateral; that, after the loan of $1,500 was paid, appellee demanded payment of the value of such collateral, to wit, $750, which appellant refused to pay. It is