E. 958, holding failure of sender's agent to reduce damage, from delay in delivery of message, by doing unauthorized act, not available to telegraph company in mitigation.

Cited in footnotes to McPeek v. Western U. Teleg. Co. 43 L. R. A. 214, which holds loss of reward offered for capture of criminal within damages recoverable for failure to deliver telegram; Fererro v. Western U. Teleg. Co. 35 L. R. A. 548, which limits damage for mistake in telegram as to price in offer to sell goods, to difference in price; Western U. Teleg. Co. v. North Packing & Provision Co. 52 L. R. A. 275, which holds agent purchasing live stock through delay in delivering telegram, not required to resell before communicating with principal, to reduce damages.

7 L. R. A. 478, DWYER v. GULF, C. & S. F. R. CO. 75 Tex. 572, 16 Am. St. Rep. 926, 12 S. W. 1001.

Adhered to on third appeal of case reported in 84 Tex. 198, 19 S. W. 470. Penalty imposed on carrier.

Cited in Dillingham v. Fischl, 1 Tex. Civ. App. 551, 21 S. W. 554, and Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 347, 23 S. W. 732, holding statute imposing penalty on carrier refusing to deliver freight upon tender of charges not invalid as regulation of commerce; Ft. Worth & D. C. R. Co. v. Lillard, 4 Tex. App. Civ. Cas. (Willson) 124, holding statute imposing penalty on railroad company for overcharge on interstate shipment not unconstitutional; S. A. & A. P. R. Co. v. Wilson, 4 Tex. App. Civ. Cas. (Willson) 570, holding legislature without power to impose penalty upon railroad companies only, or failure to pay servants within specified time; Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 349, 23 S. W. 732, holding in suit to recover statutory penalty plaintiff must prove a case clearly within terms of the law; Gulf, C. & S. F. R. Co. v. Loonie, 84 Tex. 261, 19 S. W. 385, raising but not deciding question whether suit for statutory penalty for withholding freight and overcharge, applicable to interstate shipment.

Police regulations.

Cited in Texas & P. R. Co. v. Clark, 4 Tex. Civ. App. 614, 23 S. W. 698, holding states may make police regulations relative to commerce within proper limitations; Missouri, K. & T. R. Co. v. Simonson, 64 Kan. 810, 57 L. R. A. 768, 91 Am. St. Rep. 248, 68 Pac. 653, holding statute making specification of weights in bills of lading conclusive evidence against carrier a police regulation. Ratification by carrier.

Cited in Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 348, 23 S. W. 732, and Dillingham v. Fischl, 1 Tex. Civ. App. 552, 21 S. W. 554, holding penalty for refusal to deliver freight on payment or tender not recoverable unless carrier executed bill of lading or ratified it; Miller v. Texas & N. O. R. Co. 83 Tex. 521, 18 S. W. 954, holding ratification not presumed as against connecting carrier from fact that it received and hauled car and collected charges; Pittsburg, C. C. & St. L. R. Co. v. Viers, 113 Ky. 535, 68 S. W. 469, holding connecting carrier, not limiting liability, receives shipment under terms of contract with initial carrier.

Cited in note (10 L. R. A. 418) on liability of connecting carrier.

970

L. R. A. CASES AS AUTHORITIES.

[7 L. R. A.

Limitation of liability by contract.

Cited in Armstrong v. Galveston, H. & S. A. R. Co. 92 Tex. 121, 46 S. W. 33, and Gulf, C. & S. F. R. Co. v. Eddins, 7 Tex. Civ. App. 125, 26 S. W. 161, holding statute forbidding contracts limiting time to present claim or sue does not regulate interstate commerce; Pittmann v. Pacific Exp. Co. 24 Tex. Civ. App. 598, 59 S. W. 949, holding statute prohibiting common carriers from limiting their liability in bill of lading applicable to contracts for interstate carriage; Ohio & M. R. Co. v. Tabor, 98 Ky. 510, 34 L. R. A. 689, 36 S. W. 18, holding constitutional provision that carrier shall not contract for relief from common-law liability not in conflict with Federal Constitution.

Production of bill of lading.

Cited in note (38 L. R. A. 361) on necessity of production of bill of lading.

7 L. R. A. 481, WALLING v. BURGESS, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076. Power of surviving partner.

Cited in Riley v. Carter, 76 Md. 594, 19 L. R. A. 494, 35 Am. St. Rep. 443, 25 Atl. 667, holding surviving partner may execute assignment for benefit of creditors in conformity with insolvent laws; Holladay v. Land & River Improv. Co. 6 C. C. A. 571, 18 U. S. App. 308, 57 Fed. 785, to point that conveyance by surviving partner passes equitable title.

Cited in notes (7 L. R. A. 791) on duty of surviving partner; (28 L. R. A. 133) on disposition of real estate by surviving partner.

Rights of heirs.

Cited in Bollenbacher v. First Nat. Bank, 8 Ind. App. 18, 35 N. E. 403, and Valentine v. Wysor, 123 Ind. 52, 7 L. R. A. 794, 23 N. E. 1076, holding rights of heirs of deceased partner attach only to the surplus remaining after payment of partnership debts.

Cited in note (27 L. R. A. 345) on claims of heirs must yield to partnership claims.

Estoppel from claiming interest.

Cited in Wilmore v. Stetler, 137 Ind. 137, 45 Am. St. Rep. 169, 36 N. E. 856, holding acceptance by heirs of proceeds of land sold as belonging to the decedent estops them from claiming their two-thirds interest therein; Axton v. Carter, 141 Ind. 676, 39 N. E. 546, holding heirs accepting proceeds of sale of land made to administrator through third party ratify sale and cannot avoid it. Error in overruling demurrers.

Cited in Bradshaw v. Van Winkle, 133 Ind. 136, 32 N. E. 877; Schmidt v. Draper, 137 Ind. 253, 36 N. E. 709; Louisville, N. A. & C. R. Co. v. BodenschatzBedford Stone Co. 141 Ind. 258, 39 N. E. 703,- holding error in overruling demurrer to answer immaterial where record shows ruling was harmless; Haas v. Evansville, 20 Ind. App. 490, 50 N. E. 46, holding erroneous overruling of demurrer to answer immaterial where appellant failed to prove his complaint in court below; Indianapolis, D. & W. R. Co. v. Center Twp. 143 Ind. 74, 40 N. E. 134, holding error in overruling demurrer to answer setting up statute of limitations immaterial where record shows final judgment correct, and not based on any finding as to such statute.

Special finding or special verdict.

Cited in Louisville, N. A. & C. R. Co. v. Downey, 18 Ind. App. 145, 47 N. E. 494, and Tulley v. Citizens' State Bank, 18 Ind. App. 242, 47 N. E. 850, holding erroneous overruling of demurrer harmless where there was special verdict or special finding; Runner v. Scott, 150 Ind. 442, 50 N. E. 479, holding error in overruling demurrer immaterial when there is special finding; Smith v. Wells Mfg. Co. 148 Ind. 335, 46 N. E. 1000, holding error in overruling demurrer to answer harmless where special finding is in accordance with facts alleged in subsequent answer; Watson v. Tindall, 150 Ind. 488, 50 N. E. 468, holding erroneous ruling on demurrer to answer harmless where there is special finding, and facts found could have been proved under the general denial; Terre Haute Brewing Co. v. Hartman, 19 Ind. App. 600, 49 N. E. 864, holding sufficiency of answer will not be considered where correct statement of the law may be made on facts specially found; Beasley v. Phillips, 20 Ind. App. 188, 50 N. E. 488, holding court may look to special finding or special verdict to determine whether ruling on demurrer was prejudicial; Gilliland v. Jones, 144 Ind. 670, 55 Am. St. Rep. 210, 43 N. E. 939, holding court may look to special finding to ascertain if ruling on demurrer to answer is harmless.

7 L. R. A. 485, DAVIS v. FOGLE, 124 Ind. 41, 23 N. E. 860.

Wills; effect of subsequent adoption of child.

Cited in Hilpire v. Claude, 109 Iowa, 166, 46 L. R. A. 174, 77 Am. St. Rep. 524, 80 N. W. 332, 'holding under statute making birth of child to testator operate as revocation of prior will, subsequent adoption of child does not have such effect; Re Comassi, 107 Cal. 7, 28 L. R. A. 416, 40 Pac. 15, holding subsequent remarriage and adoption of stranger in blood do not operate to revoke will of married woman.

Cited in footnotes to Flannigan v. Howard, 59 L. R. A. 664, which holds devises and legacies in will ratably abated by adoption of child after its execution: Re Comassi, 28 L. R. A. 414, which holds will not revoked by adopting stranger in blood; Glascott v. Bragg, 56 L. R. A. 258, which holds will in favor of third person revoked by marriage and adoption of child.

Revocation by subsequent marriage.

Cited in footnotes to Re Hulett, 34 L. R. A. 384, which holds will not revoked by marriage alone; Ingersoll v. Hopkins, 40 L. R. A. 191, which holds will giving testator's property to woman made executrix revoked by testator's subsequent marriage to her; Re Kelly, 56 L. R. A. 754, which holds woman's will not revoked by subsequent marriage; Roane v. Hollingshead, 17 L. R. A. 592, which holds rule that will of feme sole revoked by marriage not in force where incapacity removed by statute; Re Comassi, 28 L. R. A. 414, which holds married woman's will not revoked by subsequent marriage after becoming widow.

Cited in notes (10 L. R. A. 57) on presumptive revocation of will; (10 L. R. A. 94) on revocation of joint will.

Manner of effecting revocation.

Cited in footnotes to Billington v. Jones, 56 L. R. A. 654, which holds will revoked by writing on it statement that it is void, stating that it is killed, and

filing it away; Cutler v. Cutler, 57 L. R. A. 209, which holds will revoked by adopting mutilations by vermin.

Right of adopted child to take by descent or will.

Cited in Re Gregory, 15 Misc. 409, 37 N. Y. Supp. 925, holding inheritance of adopted child subject to testamentary power of adopting parent.

Distinguished in Markover v. Krauss, 132 Ind. 304, 17 L. R. A. 810, 31 N. E. 1047, holding children jointly adopted take by descent from deceased parent same property rights as natural children; Bray v. Miles, 23 Ind. App. 443, 54 N. E. 446, holding under will providing share of deceased devisee shall go to children, if there be any, adopted child takes share of adopted parent.

Estoppel to contest will.

Cited in footnote to Hudnall v. Ham, 48 L. R. A. 557, which holds widow precluded from contesting husband's will by antenuptial contract agreeing to release all interest in his estate.

7 L. R. A. 489, CULVER v. MARKS, 122 Ind. 554, 17 Am. St. Rep. 377, 23 N. E. 1086.

Checks and drafts; when presentment necessary.

Cited in Industrial Trust, Title & Sav. Co. v. Weakley, 103 Ala. 464, 49 Am. St. Rep. 45, 15 So. 854, holding unreasonable delay in presentment of check covered by deposit releases drawer.

Distinguished in Industrial Trust, Title & Sav. Co. v. Weakley, 103 Ala. 465, 49 Am. St. Rep. 45, 15 So. 854, holding insufficiency of deposit does not excuse prompt presentment of check where drawer has arranged for overdraft; Citizens Nat. Bank v. Third Nat. Bank, 19 Ind. App. 75, 49 N. E. 171, holding failure of bona fide indorsee of draft to inquire into drawer's right does not excuse collecting bank's failure to present.

Checks; statute of limitations.

Cited in note (22 L. R. A. 110) on statute of limitation as applicable to bank checks.

Certified check; drawer's liability.

Cited in Born v. First Nat. Bank, 123 Ind. 84, 7 L. R. A. 445, 18 Am. St. Rep. 312, 24 N. E. 173, holding drawer of certified check remains liable until payment.

Books of account as evidence.

Cited in Bastrop State Bank v. Levy, 106 La. 589, 31 So. 164, holding book entries of bank deposits, accompanied by proof of handwriting and death of bookkeeper, competent; Cleland v. Applegate, 8 Ind. App. 501, 35 N. E. 1108, holding entries made by disinterested person in course of business competent evidence of transactions; Wilber v. Scherer, 13 Ind. App. 430, 41 N. E. 837. holding permitting witness to read from account book items to which he had previously testified, not reversible error; Harmon v. Decker, 41 Or. 595, 93 Am. St. Rep. 748, 68 Pac. 11, holding merchant's account books not evidence of loans to others; Place v. Baugher, 159 Ind. 235, 64 N. E. 852, holding book into which measurements of saw logs were transcribed the same day on which received admissible.

Cited in note (53 L. R. A. 529) on use of person's books of account as evidence on issues between other parties.

Distinguished in Fleming v. Yost, 137 Ind. 97, 36 N. E. 705, holding book entries of payments, contemporaneously made, admissible to show consideration for conveyance.

Cited in Texas & P. Coal Co. v. Lawson, 10 Tex. Civ. App. 501, 31 S. W. 843, holding where originals in court, transcript of account made by competent bookkeeper, admissible.

Evidence of expert as to conclusions deduced from intricate accounts or calculations.

Cited in Guarantee Co. of N. A. v. Mutual Bldg. & L. Asso. 57 Ill. App. 263; Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 278, 50 Am. St. Rep. 320, 39 N. E. 451, holding accountant may testify as to contents of voluminous and complicated books from abstract made from originals; Bee Pub. Co. v. World Pub. Co. 59 Neb. 722, 82 N. W. 28, holding testimony of decrease of business based on examination of books, improper without their production; Shover v. Myrick, 4 Ind. App. 16, 30 N. E. 207, holding expert may testify as to expectancy, using standard mortality tables.

Secondary evidence.

Cited in New La Junta & L. Canal Co. v. Kreybill, 17 Colo. App. 36, 67 Pac. 1026, holding oral testimony as to contents of voluminous documents admissible, where documents open to inspection affording ample opportunity for crossexamination of witness.

7 L. R. A. 495, THOMPSON v. REASONER, 122 Ind. 454, 24 N. E. 223. Enforceability of judgment until reversed.

Cited in Lake Erie & W. R. Co. v. Smith, 61 Fed. 887, to point judgment rendered by court in exercise of its jurisdiction justifies acts enforcing it until it is reversed or set aside; Boos v. Morgan, 140 Ind. 207, 39 N. E. 919, holding enforcement of judgment rendered by court in exercise of its jurisdiction will not be enjoined unless reversed or set aside.

Cited in note (45 L. R. A. 801) on liability for tort in doing acts authorized by judgment afterwards reversed.

Restitution.

Cited in Chicago & S. E. R. Co. v. Adams, 26 Ind. App. 445, 59 N. E. 1087, holding law raises obligation against one benefited by judgment thereafter reversed to make restitution.

Drains and sewers.

Cited in note (60 L. R. A. 223) on procedure for the establishment of drains and sewers, as to wrongful acts.

7 L. R. A. 498, RAPP v. REEHLING, 124 Ind. 36, 23 N. E. 777.

Contracts made on Sunday.

Cited in Bryan v. Watson, 127 Ind. 44, 11 L. R. A. 64, 26 N. E. 666, holding