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Neither the amended claim nor the demur- HOTTEL, P. J. This was an action to enrer thereto, or the substance of either, are join appellee from maintaining, on the lands set out in appellant's brief. Under numerous of its county poor farm, a ditch alleged to decisions of both this and the Supreme have been so constructed thereon that it causCourt, no question is presented. Pry v. ed the water and sand that naturally came Ramage, 176 Ind. 447, 96 N. E. 385; Korporal on its land to flow over on appellant's lands v. Ramage, 176 Ind. 484, 96 N. E. 385; Lev- to its damage. There was an answer in enthal v. Crampton, 48 Ind. App. 92, 95 N. E. three paragraphs, the first and third of 547; Schrader v. Meyer, 48 Ind. App. 36, 38, which were affirmative. A demurrer to each 95 N. E. 335; Cleveland, etc., R. Co. v. Bowen of these paragraphs was overruled, and this (Sup.) 100 N. E. 465. ruling constitutes one of the errors relied on. Appeal dismissed.

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1. APPEAL AND ERROR (§ 757*) - BRIEFS MATTER TO BE INCLUDED.

Under rule 22 of the Supreme and Appellate Courts (55 N. E. v), providing that appellant's brief shall contain a concise statement of so much of the record as fully presents every error and exception relied on, the overruling of a demurrer to the answer would not be considered, where appellant's brief did not contain a copy of the answer, or the substance thereof,

and did not state the ground of the demurrer.
[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]
2. APPEAL AND ERROR (§ 757*) BRIEFS
MATTER TO BE INCLUDED.

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The overruling of a motion for a trial was not presented for review on appeal, where appellant's brief did not set out the motion or the grounds thereof.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 3. APPEAL AND ERROR (8 757*) BRIEFS MATTER TO PE INCLUDED.

[1] Appellant's brief does not contain a copy of these pleadings, or either of them, or the substance thereof, and does not state the fails to comply with rule 22 (55 N. E. v) ground of the demurrer. Such brief wholly

of this court, and hence the ruling attempted

to be presented should not be considered. Holliday et al. v. Anheir, 174 Ind. 729, 93 N. E. 1; Myers v. State, 171 Ind. 673, 87 N. E. 141; Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 142, 72 N. E. 869, 6 Ann. Cas. 607, and authorities there cited.

[2] Error in overruling her motion for new trial is also relied on by appellant. Her brief nowhere sets out such motion or the grounds thereof, and hence error, if any, in the ruling thereon is not presented. Tongret et al. v. Carlin et al., 165 Ind. 489, 75 N. E. 887; Albaugh, etc., Co. v. Lynas, 47 Ind. App. 30-32, 33, 93 N. E. 678, and authorities there cited.

[3] Rule 22 of the Supreme Court and this court has been construed in many cases to mean that briefs must be so prepared that all questions presented by the assignment of error and relied on for reversal "can be deUnder rule 22 of the Supreme and Appel-termined from an examination of the briefs late Courts (55 N. E. v), providing that appel- without looking at the record, and to the exlant's brief shall contain a concise statement of tent said rule is complied with, the errors so much of the record as fully presents every error and exception relied on, referring to the assigned will be determined and others will pages and lines of the transcript, the brief must be considered waived." be so prepared that all questions presented by the assignments of error and relied on for reversal can be determined from an examination of the briefs without looking at the record; and, to the extent that such rule is complied with, the errors assigned will be determined,

and others will be considered waived.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 4. APPEAL AND ERROR (§ 757*) -GROUNDS

FOR DISMISSAL-DEFECTIVE BRIEFS.

Where appellant's brief is so prepared that an intelligent decision of any of the questions attempted to be presented, without looking at the record, is impossible, a dismissal of the appeal is authorized.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]

Appeal from Circuit Court, Morgan County; Henry Clay Allen, Special Judge.

Action by Mary K. Wilt against the Board of Commissioners of Morgan County. Judgment for defendant, and plaintiff appeals. Appeal dismissed.

W. S. Shirley and G. W. Grubbs, both of Martinsville, for appellant. Will H. Pigg, of Martinsville, for appellee.

[4] The failure of appellant to set out in her brief any of the pleadings, the motion for new trial, or the grounds thereof, renders impossible an intelligent decision of any of the questions attempted to be presented under the rule of the court and the authori"without looking to the record"; and hence, ties cited construing it, a dismissal of the appeal is authorized. Appeal dismissed.

(54 Ind. App. 243)

CITY OF NEWCASTLE v. HARVEY et ux.
(No. 8,015.)
(Appellate Court of Indiana, Division No. 2.
Oct. 16, 1913.)

1. WATERS AND WATER COURSES (§ 77*)-
POLLUTION-ACTIONS-COMPLAINT.

In an action for damages and to enjoin the pollution of plaintiffs' fish pond, caused by dumping garbage where it polluted the stream which fed the pond, it was essential to a good complaint that it should allege that defendants allowed or permitted the garbage to wrongfully,

negligently, or carelessly escape from the dumping ground to plaintiffs' injury.

Mark E. Forkner, George D. Forkner, William O. Barnard, and William E. Jef frey, all of Newcastle, for appellant. Frank E. Beach and Fred. C. Gause, both of New

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 65, 66; Dec. Dig. $ 77.*] 2. WATERS AND WATER COURSES (§ 77*)-castle, for appellees. POLLUTION-ACTIONS-COMPLAINT.

In an action for damages and to enjoin the pollution of plaintiffs' fish pond, a complaint, alleging that the defendant negligently, carelessly, and unlawfully deposited and permitted to be deposited on certain real estate garbage, trash, and offal, and on the side of a hill where it would wash and drain into a stream which fed such pond, and negligently, carelessly, and unlawfully deposited such garbage, etc., without making provision for retaining it at the place where it was so deposited, or preventing it from washing into such stream or pond, and negligently, carelessly, and unlawfully permitted it to remain where it could and would be washed into such stream, was not defective as failing to allege that defendants permitted the garbage to wrongfully, negligently, or carelessly escape from the dumping ground to plaintiffs' injury, especially where a supplemental complaint alleged that since the bringing of the suit defendants had negligently, carelessly, and unlawfully permitted such garbage, etc., to wash and drain into said land in the manner

alleged.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 65, 66; Dec. Dig. § 77.*]

3. MUNICIPAL CORPORATIONS (§ 736*)-TORTS

-NUISANCE-LIABILITY.

While a town was charged with the duty of preserving the health of its citizens and was within the bounds of its governmental functions in providing a suitable place in which to deposit garbage, it might not deposit such garbage at such place in a careless and negligent manner, thus causing a nuisance, nor negligently permit it to escape upon the lands of another to his damage, since a municipal corporation has no more right to maintain a nuisance than an individual would have, and for a nuisance maintained upon its property the same liability attaches against it as against

an individual.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1552; Dec. Dig. § 736.*]

4. WATERS AND WATER COURSES (§ 74*)POLLUTION-RIGHTS OF NONRIPARIAN PRO

PRIETORS.

A nonriparian owner does not have the same rights as a riparian owner to divert the water of a stream, or to have it flow pure and unpolluted; and, where he diverts water from a stream, he takes it as he finds it, and cannot recover on account of any damage done him or his property by reason of impurities therein. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 62, 63; Dec. Dig. § 74.*]

5. TRIAL (8 252*)-INSTRUCTIONS ITY TO EVIDENCE.

- CONFORM

It was not error to refuse instructions where there was no evidence to support them, or from which the jury might even infer that facts existed such as those upon which they were based.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]

Appeal from Circuit Court, Henry County; Eugene H. Bundy, Special Judge.

Action by Mahlon D. Harvey and wife against the City of Newcastle and another. From a judgment for plaintiffs, the defendant named appeals. Affirmed.

IBACH, J. This suit as originally filed proceeded against the town of Newcastle and Joseph M. Brown. During the pendency of the suit in the Henry. circuit court the town of Newcastle became a city in manner provided by law, and the plaintiffs filed their amended and supplemental complaint, wherein they sought to recover damages of the defendants for the alleged pollution of plaintiffs' fish pond, caused by defendants dumping garbage where it polluted the stream which fed the pond, and to restrain and enjoin further damage of the same. Separate demurrers to the complaint by each defendant were overruled. Answers in general denial completed the issues. There was a jury trial, verdict and judgment for plaintiff's for $400, and the court perpetually enjoined appellant from polluting the water of appellees' fish pond by permitting any offal or poisonous substances to wash or be drained from off the dump ground described in the complaint.

[1, 2] It is insisted that the complaint is insufficient because it is not alleged that at or prior to the bringing of the suit, appellant allowed or permitted the refuse deposited on the dumping ground to wrongfully, negligently, or carelessly escape therefrom to the injury of appellees. It will be conceded that such averments are essential to a good complaint in cases of this character, but the amended complaint is clear and certain in this regard, for it is alleged that "defendants negligently, carelessly, and unlawfully deposited and permitted to be deposited on said real estate said garbage, trash, and offal, * * and on the side of said hill where the same would wash and drain into said stream which feeds said pond, and negligently, carelessly, and unlawfully deposited the same at the time and place and in the manner aforesaid, without making any provision for retaining the same at the place where it was so deposited, or preventing the same from washing into the said stream and pond, and negligently, carelessly, and unlawfully permitted said garbage to be and remain on said real estate, in the manner above alleged, where the same could and would be washed into said stream." It is further alleged in the supplemental complaint that "since the bringing of this suit said defendants have negligently, carelessly, and unlawfully permitted said garbage, trash, and offal to wash and drain into said land in the manner aforesaid." These statements clearly show that defendants were careless and negligent in allowing poisonous substances and offal to drain

off from the dumping ground into the pond. I which were based on the theory that the There is no merit in the contention that the channel of the stream had been changed by complaint is insufficient to withstand demur

rer.

consent of the parties when a railroad embankment was erected across appellees' land, The second point raised by appellant is and that afterwards appellees had parted that the court erred in refusing to give in- with all their lands upon that side of the structions numbered 2, 3, and 4 at its re- embankment from which the waters flowed, quest. Instruction 2 is as follows: "If the and thus were not entitled to assert any rights defendant town, now city of Newcastle, leas- against appellant. Appellant's contention as ed of the defendant Joseph M. Brown a por- to the abstract proposition of law stated tion of his farm for a dumping ground for above is correct, and well supported by augarbage and other refuse and offensive mat-thority. But the evidence in this case would ter accumulating in said town or city, such make the giving of the requested instructown or city had the legal right to deposit tions erroneous. There is no evidence even such garbage and refuse matter on such tending to show that appellees, or any one ground, and the doing so alone would not else, had changed the course of the stream render them liable to the plaintiff. They affected by the drainage from the dump, or could be made liable only for negligently al- that they had parted with their riparian lowing such refuse matter to wash and es- rights as to it. The evidence upon this point cape into the stream. The complaint does is that the course was never changed; that not aver any such cause of action, and you the natural flow of the water continued should find for the defendants." We have across the lands of the railroad company and seen that the complaint states a good cause appellees; that an artificial ditch was cut of action upon the theory of negligence in north of the railroad to carry the overflow permitting offal and pollution to escape from water in times of heavy rains, while the natthe dumping ground into the stream and ural stream continued through a culvert in pond. But this instruction would tell the the embankment; that although appellees jury that the complaint does not state such a cause of action, and is in effect a peremptory instruction to find for the defendants. It was properly refused.

had conveyed certain lands to the north of the embankment, they had expressly reserved the rights to the stream and the water.

[5] Since there was no evidence to support these instructions, and no evidence upon which the jury might even infer that facts existed in this case such as those upon which they were based, there was no error in refusing them.

Judgment affirmed.

(55 Ind. App. 331) PATTERSON v. STATE BANK OF CHRISMAN. (No. 8,621.)1

[3] As appellant contends, the town of Newcastle was charged with the duty of preserving the health of its citizens, and was within the bounds of its governmental functions when it provided a suitable place in which to deposit its garbage. But while it has such authority, it may not deposit garbage at such place in a careless and negligent manner, causing a nuisance, nor may it negligently permit the garbage and offal, properly deposited, to escape upon the lands of another to his damage. City of New Al- (Appellate Court of Indiana, Division No. 1. bany v. Slider, 21 Ind. App. 392, 52 N. E. 626, and cases there cited. A municipal corporation has no more right to maintain a nuisance than an individual would have, and for a nuisance maintained upon its property, the same liability attaches against a city as to an individual. 2 Add. Torts (Dudley and Baylies Ed.) p. 1315; 2 Hilliard, Torts (4th Ed.) 387, 388.

[4] Finally, appellant cites authority to the effect that a nonriparian owner does not possess the same rights as a riparian owner to divert or take from the water of a stream, or to have the same flow pure and unpolluted, and if a nonriparian owner diverts or takes from a stream the water thereof, he takes the current as he finds it, and if the same is foul or contains impurities, he is charged with the knowledge thereof, and he cannot recover on account of any damage done him or his property by reason of such impurities. Therefore appellant insists that instructions 3 and 4 should have been given,

Oct. 14, 1913.)

1. CONTRACTS (§ 170*)-CONSTRUCTION BY PARTIES.

Where a written instrument was evidently drawn by a layman, and was not certain in its terms, the construction given it and acted upon by the parties themselves would be adhered to. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. § 170.*]

2. JUDGMENT (§ 199*)-JUDGMENT ON SPECIAL FINDINGS NOTWITHSTANDING VERDICT.

In passing upon the correctness of a ruling on a motion for judgment upon interrogatories and answers thereto, notwithstanding the general verdict, only the pleadings, interrogatories, answers, and the general verdict can be considered.

Cent. Dig. §§ 367-375; Dec. Dig. § 199.*]
[Ed. Note. For other cases, see Judgment,
3. TRIAL ($359*)-VERDICT-GENERAL AND
SPECIAL FINDINGS-CONFLICT.

A general verdict determines all the material allegations of the complaint in favor of the pleader, and carries with it every presumption drawn from evidence properly admitted under and inference of fact which might have been the issues, and the answers to interrogatories

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

overcome the general verdict only when they are | tion was not erroneous, especially where the obin such irreconcilable conflict therewith that both cannot stand.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 857-860, 875, 877, 878; Dec. Dig. § 359.*1

4. BILLS AND NOTES (§ 539*)—ACTIONS-SPECIAL FINDINGS-CONSTRUCTION.

In an action on notes signed in the names of defendant's intestate, his son and the son's partner, in which it was claimed that an instrument signed by such parties, providing that all would stand together and support the firm, and that they granted "our names to be used jointly and to be signed by either one of the persons signed below," authorized the son to sign the name of the intestate to such notes, interrogatories by which the jury found that the intestate authorized the son and his partner to sign his name to the particular note sued on, and that the son did sign such name to the notes, showed that the parties construed the instrument as authorizing the son to sign the intestate's name to such notes.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1911-1913, 1934; Dec. Dig. $ 539.*]

5. WITNESSES (§ 188*)-PRIVILEGED COMMUNICATIONS-HUSBAND AND WIFE. Communications between a husband and wife are as a rule privileged.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 734, 736; Dec. Dig. § 188.*] 6. APPEAL AND ERROR (§ 1050*)-HARMLESS

ERROR-ADMISSION OF EVIDENCE.

On the trial of a claim against a decedent's estate on notes signed in the names of the members of a firm and the decedent, the principal issue was whether an instrument executed by such parties, and stating that they would stand together and support the firm, and that they granted the right "of our names to be used jointly and to be signed by either one of the persons signed below," was executed, and, if so, whether it authorized the members of the firm to sign the decedent's name to the notes in question; there being a further issue as to whether decedent was a principal or a surety. Decedent's wife was permitted to testify that the decedent always told her he had an interest in the store of the firm. The jury found that decedent was a surety only. Held that, in view of this finding, the admission of such privileged communication between the husband and wife was harmless error, since it was of such slight consequence on the principal issue that it could not have influenced the verdict.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

7. TRIAL (§ 136*)-PROVINCE OF COURT AND JURY-CONSTRUCTION OF INSTRUMENTS.

That the construction of a written instrument was a question of law for the court did not render its admission in evidence erroneous; this not affecting the duty of the court to construe and give legal effect to the instrument.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323-327; Dec. Dig. § 136.*]

8. WITNESSES (§ 287*)-REDIRECT EXAMINATION-EXPLANATORY MATTERS.

On the trial of a claim against a decedent's estate on notes on which he was a surety, the vice president of the plaintiff bank, after being cross-examined as to why deposits by the principal debtors were not applied on the notes, was permitted to testify on redirect examination that he had no authority from any one to so apply them. Held, that the admission of this explana

jection thereto specified no ground of objection. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. § 287.*] 9. EXECUTORS AND ADMINISTRATORS (§ 221*)— DISPUTED CLAIMS-EVIDENCE-ADMISSIBILITY.

On the trial of a claim against a decedent's estate in which it was claimed that plaintiff had been guilty of laches preventing a recovery, the testimony of the administratrix as to when she first learned of the claim was properly excluded.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 901-9032, 1858, 1861-1863, 1865, 1866, 1871-1874, 1876; Dec. Dig. § 221.*]

10. EXECUTORS AND ADMINISTRATORS (§ 202*) -CLAIMS-CONTRACTS OF SURETYSHIP.

Under Burns' Ann. St. 1908, § 2831, providing that, if a decedent be a surety only on any joint or joint and several contract, his estate shall not be liable for the payment thereof, unless it be shown that the principai is a nonresident or is insolvent, notes on which a decedent, whose estate was being administered in this state, was a surety were enforceable against the estate, where the principals were residents of another state, although the claimant was a bank doing business in that state, and decedent in his lifetime was also a resident of that state.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 730, 738–745, 748, 754, 763; Dec. Dig. § 202.*]·

11. PRINCIPAL AND SURETY (§ 125*)-ACTIONS

AGAINST SURETY-LACHES.

decedent was a surety became due in April and Where notes held by a bank upon which a May, 1909, and active efforts for the collection of the notes began early in 1910, this delay in connection with the failure of the bank to apply on the notes deposits of the principal debtors did not show laches preventing a recovery from the surety's estate, since "laches" is such neglect or omission to do what one should do as warrants the presumption that he has abandon ed his claim and declined to assert his right, and what would be laches in one case may not condressed to the sound discretion of the court, destitute it in another; the question being one adpending upon all the facts of the particular case -citing 5 Words and Phrases.

Surety, Cent. Dig. §§ 312-328; Dec. Dig. & [Ed. Note.-For other cases, see Principal and 125.*]

12. BANKS AND BANKING (§ 134*)—DEPOSITS -APPLICATION ON DEBTS DUE BANK.

A bank has a right to apply deposits toward the discharge of a debt due it from the depositor, but it is not obliged to do so.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 353-374; Dec. Dig. § 134.*]

13. EQUITY (§ 67*)-"LACHES."

Laches is defined to be "such neglect or omission to do what one should do as warrants the presumption that he has abandoned his claim and declined to assert his right," and the question is for the court based on the particular factsciting 5 Words and Phrases, pp. 3969–3972; vol. 8, p. 7700.

Dig. §§ 191-196; Dec. Dig. § 67.*] [Ed. Note. For other cases, see Equity, Cent. 14. APPEAL AND ERROR (§ 525*)-RECORDSTATUTORY PROVISIONS.

Burns' Ann. St. 1908, § 660, provides that, when the record does not otherwise show the decision to which an exception is taken or the grounds of objection thereto, the objecting party must present to the judge a proper bill of exceptions, which, if true, he shall sign and cause

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

to be filed, when it becomes a part of the record. I tiff bank, and, after cross-examination as to Section 558 provides that all instructions must why deposits to the credit of B. W. James be signed by the judge and filed, together with those asked for by the parties, as a part of the and L. F. Busby were not applied to disrecord, and that the instructions shall not be en- charge the notes sued on, was asked on retered on the final record unless either party may direct examination whether he had any auwish to appeal. Section 560 provides that, when a party excepts to the giving or refusal of in-thority from any one to so apply them, to structions, it shall be sufficient to write on the which he answered over an objection specifymargin or at the close of each instruction "Refus- ing no ground that he had no authority to do ed and excepted to" or "Given and excepted to," so. The administratrix was asked a number which memorandum shall be signed by the judge. of questions as to when she first learned of Section 561 provides that the court, before instructing the jury, shall indicate by a memoran- the claims sued on, to which objections were dum signed by the judge at the close of the in- sustained. The plaintiff was an Illinois corstructions requested the numbers of those given poration doing business in that state. B. W. and of those refused; that the instructions given on the court's own motion shall be in writing James and L. F. Busby were residents of if requested; that all instructions requested, that state, and the decedent in his lifetime whether given or refused, and all instructions was also a resident of that state, and died given by the court, shall be filed at the close of there. the instructions; that exceptions to the giving or refusing of instructions may be taken at any time during the term, and may be taken orally and entered on the record or in writing at the close of the instructions requested or given, in which case the party excepting shall enter at the close of such instruction a memorandum which shall set forth that such party excepts to the rulings on the above instructions; that all instructions requested, whether given or refusSHEA, J. This action was brought by ed, and all those given by the court, with all ex- appellee against the estate of Silas M. Busby, ceptions thereto, and all entries upon the records deceased, upon two promissory notes alleged of the court in respect thereto, shall be a part to have been executed by Leonidas F. Busby, of the record without any bill of exceptions, and may be included in the transcript on appeal. Bloomer W. James, and Silas M. Busby, unHeld, that where, at the end of certain instruc- der the name and style of L. F. Busby, B. W. tions refused, and at the close of certain instruc- James, and S. M. Busby, and filed with the tions given, there appeared merely a notation "refused and excepted to" and "given and ex- clerk of the Madison circuit court as a claim cepted to," respectively, signed only by appel- against said estate. Appellee's amended lant's attorneys, the instructions were were not claim not being allowed or disallowed by the brought into the record in any of the modes pre-administratrix, Lillie Patterson, within 60 scribed by statute.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2376-2378; Dec. Dig. § 525.*]

15. APPEAL AND ERROR ( 525*)-RECORDMATTERS TO BE INCLUded.

Under Burns' Ann. St. 1908, § 691, providing, relative to the making up of the transcript, that all proper entries made by the clerk and all papers pertaining to a cause and filed therein are to be deemed parts of the record, but that a transcript of motions, affidavits, and other papers relating to collateral matters, and depositions and papers filed as mere evidence, shall not be certified, unless made a part of the record by exception or order of court, and directed to be certified by the appellant, the record must show an order book entry, or order of court showing the filing of instructions, or they are not properly a part of the record.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2376-2378; Dec. Dig. § Error, Cent. Dig. §§ 2376-2378; Dec. Dig. 8 525.*]

Appeal from Circuit Court, Madison County; Charles K. Bagot, Judge.

Action by the State Bank of Chrisman against Lillie Patterson, administratrix. Judgment for plaintiff, and defendant appeals. Affirmed.

The wife of the decedent was asked what the decedent had told her about his interest in the store known as the Busby & James store, to which she was permitted to answer over objection that he always told her that he had an interest in the store. The witness Newkirk was vice president of the plain

Sparks L. Brooks and Kittinger & Diven, both of Anderson, for appellant. Willis S. Ellis and Alfred Ellison, both of Anderson, for appellee.

days, the same was entered upon the court's claim docket for trial. Appellant's demurrer thereto was overruled. The issues formed were tried by court and jury, resulting in a verdict and judgment for appellee. With their general verdict, the jury returned answers to 11 interrogatories. The overruling of appellant's motion for judgment in its favor upon the interrogatories and answers, notwithstanding the general verdict, and the overruling of its motion for a new trial are the errors relied upon for a reversal of this

cause.

The first note in suit reads as follows:

"Chrisman, Illinois, Oct. 15, 1908. "$1,000.00. Six months after date, we, or either of us, promise to pay to the order of the State Bank of Chrisman one thousand and no/100 dollars, payable at the office of said bank in Chrisman, Illinois, for value received, with interest at the rate of seven per cent. per annum after date until paid, and if not paid at maturity and put in an attorney's hands for collection, we agree to pay ten per cent. attorney's fee on on the amount due. The drawers and indorsers severally waive presentment, protest, and notice of protest of nonpayment of this note.

"Due April 15, 1909."

"L. F. Busby.
"B. W. James.
"S. M. Busby.

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