State ex rel. Colscott v. King, 154 Ind. 628, 57 N. E. 535, holding citizen and taxpayer has right to examine county auditor's records; Marriage License Docket, 4 Pa. Dist. R. 166, holding citizen may inspect marriage license docket without paying fee; Re Chambers, 44 Fed. 792, holding records of Federal courts open to public examination free of charge.

Cited in notes (10 L. R. A. 212; 27 L. R. A. 82) on common right to inspect public records; (64 L. R. A. 425, 426) on right of taxpayer to inspect books of municipality.

Distinguished in Burton v. Reynolds, 110 Mich. 355, 68 N. W. 217, holding examination by abstracter of files in action relating to land not compellable where not shown necessary to employee's interests; Belt v. Prince George's County Abstract Co. 73 Md. 294, 10 L. R. A. 214, 20 Atl. 982, holding title abstract company cannot copy public records without paying fees.

7 L. R. A. 77, PADUCAH LUMBER CO. v. PADUCAH WATER SUPPLY. CO. 89 Ky. 340, 25 Am. St. Rep. 536, 12 S. W. 554, 13 S. W. 249. Liability of water companies for failure of fire protection.

Followed in Gorrell v. Greensboro Water Supply Co. 124 N. C. 334, 46 L. R. A. 516, 70 Am. St. Rep. 598, 32 S. E. 720; Planters' Oil Mill v. Monroe Waterworks & Light Co. 52 La. Ann. 1251, 27 So. 684; Graves County Water Co. v. Ligon, 112 Ky. 780, 66 S. W. 725,— holding water company liable to owner for burning of property through failure of water supply; Hieronynues Bros. v. Bienville Water Supply Co. 131 Ala. 454, 31 So. 31, assuming as unquestioned in case that damage by fire may be shown to have proximately resulted from breach of contract to supply water.

Cited in footnotes to Eaton v. Fairbury Waterworks Co. 21 L. R. A. 653, which denies water company's liability for destruction of property by failure of water supply; Mott v. Cherryvale Water a Mfg. Co. 15 L. R. A. 375, which holds water company not liable to citizen for burning of property through failure to supply

water.

Cited in note (23 L. R. A. 150) on liability for loss by fire due to lack of adequate water supply.

Distinguished in Boston Safe Deposit & T. Co. v. Salem Water Co. 94 Fed. 240; Stone v. Uniontown Water Co. 16 Pa. Co. Ct. 330, 13 Lanc. L. Rev. 156, 4 Pa. Dist. R. 432; House v. Houston Waterworks Co. 88 Tex. 239, 28 L. R. A. 533, 31 S. W. 179; Fitch v. Seymour Water Co. 139 Ind. 220, 47 Am. St. Rep. 258, 37 N. E. 982; Eaton v. Fairbury Waterworks Co. 37 Neb. 552, 21 L. R. A. 655, 40 Am. St. Rep. 510, 56 N. W. 201; Bush v. Artesian Hot & Cold Water Co. 4 Idaho, 621, 95 Am. St. Rep. 161, 43 Pac. 69,- holding property owner cannot recover from water company for failure to furnish fire protection stipulated in contract or franchise; Ukiah City v. Ukiah Water & Improv. Co. 142 Cal. 179, 64 L. R. A. 235, 75 Pac. 773, holding water company not liable to town for loss by fire through failure of water supply.

Disapproved in Howsmon v. Trenton Water Co. 119 Mo. 315, 23 L. R. A. 152, 41 Am. St. Rep. 654, 24 S. W. 784, holding citizen cannot recover on water company's agreement with town to be liable for failure to supply sufficient fire protection; Britton v. Green Bay & F. H. Waterworks Co. 81 Wis. 58, 29 Am. St. Rep. 856, 51 N. W. 84, and Nichol v. Huntington Water Co. 53 W. Va. 356, 44

S. C. 290, holding failure to supply sufficient water to extinguish fires does not render company liable to individuals.

Right of third person to sue on contract made for his benefit.

Cited in Hall v. Alford, 105 Ky. 666, 49 S. W. 444, holding action maintainable by subcontractor upon contract of contractor for his benefit with owner; Louisville & N. R. Co. v. Schmidt, 112 Ky. 723, 66 S. W. 629, holding lessee liable to mortgage bondholders for breach of conditions of lease to return road in good repair; Blakeley v. Adams, 113 Ky. 396, 68 S. W. 393, holding lien reserved in conveyance of land for benefit of surety of grantee, enforceable by such surety; Peters v. Jackson, 50 W. Va. 650, 57 L. R. A. 431, 88 Am. St. Rep. 909, 41 S. E. 190, holding druggist liable to third person for injuries resulting from druggist's mistake in selling poisonous drug for harmless medicine.

Cited in notes (25 L. R. A. 267) on right of third person to sue on contract made for his benefit; (64 L. R. A. 59) on third person for whose benefit contract is made as real party in interest within the meaning of statutes defining the party by whom an action may be brought.

Distinguished in Mott v. Cherryville Water & Mfg. Co. 48 Kan. 16, 15 L. R. A. 376, 30 Am. St. Rep. 267, 28 Pac. 989, holding citizen cannot maintain action on water company's contract with city to pay damages to any citizen through failure to supply fire protection; Peters v. Johnson, 50 W. Va. 650, 57 L. R. A. 431, 88 Am. St. Rep. 909, 41 S. E. 190, holding only parties to sale of medicine can sue for damages for breach of contract.

Limited in Weatherly v. Capital City Water Co. 115 Ala. 174, 22 So. 140, holding citizen cannot have receiver appointed to carry out corporation's contract to supply city and its inhabitants with water.

Criticized in Lancaster use of Penn Iron Co. v. Frescoln, 16 Lanc. L. Rev. 76, 22 Pa. Co. Ct. 229, holding material men may recover on contractor's bond to city to pay for materials.

7 L. R. A. 81, KENTON INS. CO. v. WIGGINTON, 89 Ky. 330, 12 S. W. 668.

Cited in Caledonian Ins. Co. v. Cooke, 101 Ky. 416, 41 S. W. 279, holding proof of loss waived by insurance company's admission of some liability, and arbitration as to amount of loss; German-American Ins. Co. v. Norris, 100 Ky. 36, 66 Am. St. Rep. 324, 37 S. W. 267, holding insured not required to furnish proofs of loss where general agent denies liability.

Cited in notes (8 L. R. A. 78) on waiver of proofs of loss; (11 L. R. A. 599) on waiver of conditions by refusal to pay loss; (18 L. R. A. 85) on forfeiture of insurance by failure to furnish proofs of loss within stipulated time; (8 L. R. A. 76) on objections to statement of loss.

— What are material misrepresentations.

Cited in Carrollton Furniture Mfg. Co. v. American Credit Indemnity Co. 52 C. C. A. 673, 115 Fed. 79, holding misstatement of past losses in application for insurance against losses on sales, material misrepresentations avoiding policy; Lancashire Ins. Co. v. Monroe, 101 Ky. 20, 39 S. W. 434, holding existence of mortgage does not contradict representation of sole and unconditional ownership.

Parol evidence of mistake.

Cited in note (6 L. R. A. 838) on parol evidence in case of mistake.

7 L. R. A. 84, MERWIN v. AUSTIN, 58 Conn. 22, 18 Atl. 1029. Effect of insolvency on right of set-off.

Cited in Carroll v. Weaver, 65 Conn. 81, 31 Atl. 489, holding ship owner's payment of ship builder's order accepted before insolvency of builder, properly set off against debt to builder; St. Paul & M. Trust Co. v. Leck, 57 Minn. 92, 47 Am. St. Rep. 576, 58 N. W. 826, holding debtor's equitable se,-off unaffected by assignment; Salladin v. Mitchell, 42 Neb. 863, 61 N. W. 127, holding right of set-off unaffected by assignment in insolvency; Momsen v. Noyes, 105 Wis. 567, 81 N. W. 860, holding liability as surety may be set off against assignor's claim against surety.

Cited in notes (9 L. R. A. 108) on set-off of unliquidated cross demand; (13 L. R. A. 233) on surety's right to set off joint indebtedness where insolvency exists; (17 L. R. A. 461) on effect of immaturity of claim at time insolvency occurs on right of set-off.

Distinguished and disapproved in Huse v. Ames, 104 Mo. 99, 15 S. W. 965, holding surety cannot set off payments after assignment, although on debts past due at time of assignment.

Right of insolvent's representative.

Cited in Carroll v. Weaver, 65 Conn. 81, 31 Atl. 489, holding as general rule trustee takes insolvent estate with its burdens and equities; Re Wilcox & H. Co. 70 Conn. 231, 39 Atl. 163, holding receiver of insolvent may also represent creditors; Woodbury's Appeal, 70 Conn. 457, 39 Atl. 791, holding trustee in insolvency to a limited extent, representative of debtor and creditors; Newton Sav. Bank v. Lawrence, 71 Conn. 368, 42 Atl. 225 (dissenting opinion), majority holding insolvency trustee takes insolvent's land unaffected by unrecorded mortgage; Central Trust Co. v. Worcester Cycle Mfg. Co. 128 Fed. 490, holding right of attaching creditor to proceeds of property surrendered to mortgage receiver under stipulation preserving rights, superior to that of subsequent trustee in insolvency.

Right to contribution.

Cited in note (9 L. R. A. 227) on subrogation of surety on payment of claim.

7 L. R. A. 87, HODGES v. KOWING, 58 Conn. 12, 18 Atl. 979. Description of property.

Cited in Moayon v. Moayon, 114 Ky. 873, 60 L. R. A. 423, 72 S. W. 33, holding description covering all grantor's property acquired by will or otherwise and then owned by him, sufficient to uphold contract to convey.

Remedy at law as bar to equitable relief.

Cited in Sabin v. Anderson, 31 Or. 495, 49 Pac. 870, holding attachment or garnishment not adequate remedy precluding bill in equity to discover assets fraudulently concealed; Lockett v. Robinson, 31 Fla. 138, 20 L. R. A. 68, 12 So. 649, holding claimant of lien without adequate remedy in law to reach proceeds of land sold under agreement with owner.

Cited in notes (11 L. R. A. 69) on jurisdiction in equity where remedy at law exists: (8 L. R. A. 626) on right to specific performance where adequate remedy at law.

Specific performance.

Cited in Andrews v. Babcock, 63 Conn. 116, 26 Atl. 715, holding vendor on same footing with vendee as to specific performance of contract for sale of land.

Cited in footnote to Atchison, T. & S. F. R. Co. v. Chicago & W. I. R. Co. 35 L. R. A. 167, which refuses to require payment of interest not provided for as condition of specific performance of contract.

Cited in note (10 L. R. A. 127) as to when doctrine of laches cannot be invoked.

7 L. R. A. 90, HESS v. LOWREY, 122 Ind. 225, 17 Am. St. Rep. 355, 23 N. E. 156. Liability of partners for torts of others.

Cited in notes (37 L. R. A. 834) on liability of physician or surgeon for acts of others; (51 L. R. A. 495) on liability of partnership for torts.

Evidence of transaction with deceased partner.

Disapproved in effect in Bay View Brewing Co. v. Grubb, 31 Wash. 43, 71 Pac. 553, holding evidence of transaction between party in interest and deceased member of partnership inadmissible.

Waiver of right of action ek contractu.

Cited in Rauh v. Stevens, 21 Ind. App. 651, 52 N. E. 997, holding right of action ex contractu may be waived for remedy ex delicto; Lane v. Boicourt, 128 Ind. 421, 25 Am. St. Rep. 442, 27 N. E. 1111, holding, in action against physician for malpractice, plaintiff may waive tort.

Abatement for nonjoinder.

Cited in Alexander v. Collins, 2 Ind. App. 179, 28 N. E. 190, and Boseker v. Chamberlain, 160 Ind. 117, 66 N. E. 448, holding plea in abatement for nonjoinder bad if it does not allege that parties are living and subject to process

of court.

Survival of actions in tort.

Cited in Hamilton v. Jones, 125 Ind. 177, 25 N. E. 192, holding right of action for wrong does not survive death of wrongdoer; Feary v. Hamilton, 140 Ind. 52, 39 N. E. 516, holding action survives only where injury affects primarily and principally property rights.

Cited in footnote to Perkins v. Stein, 20 L. R. A. 862, which holds survivable action for negligently driving over person.

Distinguished in Melvin ex rel. McVey v. Evans, 48 Mo. App. 427, holding action for assault abates against surety on death of principat.

Action quasi ex contractu for damages.

Cited in Holt Ice & Cold Storage Co. v. Arthur Jordan Co. 25 Ind. App. 319, 57 N. E. 575, holding action against storage company for damages to butter, ex contractu.

Exhibition of injuries to jury.

Cited in South Bend v. Turner, 156 Ind. 427, 54 L. R. A. 400, 83 Am. St. Rep. 200, 60 N. E. 271, holding weapons, clothing, and wounds may be exhibited to jury; Arkansas River Packet Co. v. Hobbs, 105 Tenn. 38, 58 S. W. 278, upholding exhibition and exercise of injured leg before jury.

Power of court to order medical or surgical examination.

Cited in Terre Haute & I. R. Co. v. Brunker, 128 Ind. 554, 26 N. E. 178, holdL. R. A. AU.-VOL. I.-57.

ing motion to compel medical examination on second trial after plaintiff had rested, properly overruled; South Bend v. Turner, 156 Ind. 431, 54 L. R. A. 400, 83 Am. St. Rep. 200, 60 N. E. 271, holding abuse of court's discretionary power to order physical examination of injured plaintiff, reviewable; Cook Brewing Co. v. Ball, 22 Ind. App. 663, 52 N. E. 1002, holding injured plaintiff may refuse to submit to medical examination without giving reasons therefor; Graves v. Battle Creek, 95 Mich. 270, 19 L. R. A. 642, 35 Am. St. Rep. 561, 54 N. W. 757, upholding court's power to compel injured plaintiff to submit to physical examination before the jury.

Cited in footnote to Alabama G. S. R. Co. v. Hill, 9 L. R. A. 442, which holds delicacy and refinement of feeling not ground for refusing to order surgical examination of plaintiff.

Cited in note (14 L. R. A. 468) on power to compel plaintiff to submit to phy-ical examination.

Disapproved in Pennsylvania Co. v. Newmeyer, 129 Ind. 410, 28 N. E. 860, holding in absence of statute party not obliged to submit to physical examination: Union P. R. Co. v. Botsford, 141 U. S. 256, 35 L. ed. 739, 11 Sup. Ct. Rep. 1000, holding Federal court cannot order surgical examination of injured plaintiff.

Use of text-books on examination of expert witnesses.

Cited in Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 351, 29 S. W. 128, and Louisville, N. A. & C. R. Co. v. Howell, 147 Ind. 274, 45 N. E. 584, upholding reading of statements from writers of repute, on cross-examination to test expert's knowledge; Shover v. Myrick, 4 Ind. App. 16, 30 N. E. 207, holding scientific books may be referred to by experts to refresh their recollection; Butler v. South Carolina & G. Extension R. Co. 130 N. C. 20, 40 S. E. 770, holding that expert witness cannot be discredited by reading opposite opinion from textbook and asking him whether it is correct.

Cited in note (40 L. R. A. 567) on scientific books and treatises as evidence.

Instructions as to credibility of witnesses.

Cited in Mendenhall v. Stewart, 18 Ind. App. 271, 47 N. E. 943, holding instruction properly qualified, as to witness's interest as bearing upon credibility,

not erroneous.

Conviction as bar to further prosecution.

Cited in footnote to People v. McDaniels, 59 L. R. A. 578, which holds prosecution for assault to commit murder barred by conviction of battery for same acts.

7 L. R. A. 93, PICKLE v. PEOPLE'S NAT. BANK, 88 Tenn. 380, 17 Am. St. Rep. 900, 12 S. W. 919.

Right of payee to sue drawee upon acceptance.

Cited in Cincinnati, H. & D. R. Co. v. Metropolitan Nat. Bank, 54 Ohio St. 68, 31 L. R. A. 655, 56 Am. St. Rep. 700, 42 N. E. 700, holding, without acceptance, holder of check cannot compel payment from drawee bank.

Disapproved in J. N. Houston Grocer Co. v. Farmers Bank, 71 Mo. App. 136, holding payee of checks cannot maintain action against drawee for payment on forged indorsements.