Volume 142 — Indiana Reports

<p>Mandamus. — Witness. — Taxes. — Board of Equalization. — Preliminary Examination. — The court has power' by mandate to order a witness to answer questions asked him by a board of equalization on a preliminary examination, under E. S. 1881, section 6817, although it cannot direct what answer he shali make.</p> <p>Same. — Witness.—Tax Board of Equalization. — Belief-—The fact that a petition by a board of equalization, for a mandamus to compel a witness to testify before it, demands more than the petitioner is entitled to, does not deprive the petitioner of the right to any relief.</p> <p>Taxes.' — Board of Equalization. — Bight'to examine Books and Papers of Corporations and Banks. — Preliminary Examination. — Notice. —Omitted Property. — A board of equalization has power, under R. S. 1881, section 6817, to inspect and examine the books and papers of corporations, including banks, and require a witness to testify, in making a preliminary examination to determine whether any property has been omitted from taxation, before giving any notice to any tax-payer that the board is about to assess property omitted by him.</p>

<p>Will. — Devise.—Description.—Title.—A will devising the testator’s “real estate to-wit,” a specified quarter of a quarter-section, passes the title to another quarter in such quarter-section, where it was the only land owned by the testator.</p> <p>Same. — Signature.—Marie.—Wrong Christian Name. — A will signed by the teststor by making his mark, and duly probated as his will, is not insufficient because another than his given name is written thereon. (See note at end of opinion.)</p>

<p>School Corporation. — Liability for Negligent Acts of Its Officers.— Taxes. — Damages.—Personal Injury. — A school corporation is not liable for the negligent acts of its officers, where no right of action against it is expressly given by statute, and no provision is made for levying taxes or paying damages for personal injuries.</p>

<p>Prom the Lake Circuit Court.</p>

<p>Prom the St. Joseph. Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Injunction. —Complaint, Necessary Allegation. —Taxes. —The complaint in an action to enjoin the collection of taxes, part of which are admitted to be legally due, must allege that a tender of such amount was made, and that it was kept good by paying the same into court. (See note at end of opinion.)</p>

<p>Office and Officer. — Comity Sheriff. — Eligibility. — Service . IAmited to Four Years in Any Period of Six. —Construction. — One appointed sheriff in the place of the officer regularly elected for a second term of two years,, who died after qualifying is not •ineligible to hold after the end of such term, under Const., Art. 6,-section 2, providing that, no person shall be eligible to sucb office “more than four years” in any period of six years, and Art. 2, section 11, providing that an appointment pro tempore to any office shall not be reckoned a part of the term in cases providing that an office shall not be filled by the same person more than a certain number of years continuously.</p> <p>Same. — Sheriff. — Vacancy. — Appointee. — Tenure. — No vacancy occurs in the office of sheriff, authorizing the appointment of another person, where the duly elected sheriff dies before taking oath of office, and one appointed to complete his predecessor’s term of office is holding such office under R. S. 1894, section 7579, authorizing the filling of vacancies in such office by appointments which shall expire when a successor “is elected and qualified. ”</p> <p>Same. — County Sheriff. — Power of County Commissioners to Meet a Successor to an Appoiptee. —A board of county commissioners has no authority to elect a successor to an appointee to the office of sheriff, under R. S. 1894, section 7579, providing that such appointment shall expire when a successor is elected and qualified, who shall be “ elected at the next * * * general election.”</p>

<p>Mortgage. —Foreclosure. —Junior Mortgagee. —Default. —Right of Redemption. —A junior mortgagee of land, served with summons in an action to foreclose the first mortgage, who permits judgment by default to be entered because she did not understand the nature of the summons is not entitled to relief, where she allows the year ' of redemption to pass by after learning of the sale three months after its occurrence, withoirt exercising the right to redeem.</p> <p>Same. — Foreclosure. — Judgment by Default. — Proceeding to set Aside Default. — Essentials. — A judgment by default will not be set aside on the ground that it was obtained through the excusable neglect of defendant, unless she further shows that she had a good defense to the action.</p>

<p>From the Shelby Circuit Court.</p>

<p>Appeal. — Jurisdiction. — Who Must be Made Go - Appellants. — Notice. —A co-defendant, against whom a decree is rendered, must, on appeal from such a decree by the other defendants, be joined with them as a co-appellant, and served with notice thereof, otherwise the appellate court acquires no jurisdiction of the appeal, under R. S. 1894, section 647 (R. S. 1881, section 653).</p> <p>Same. — Dismissal. —Appellees. —Notice. —An appeal in which one of the defendants, against whom the decree appealed from was rendered, is made an appellee, and is not served with the process issued by the clerk of the Appellate Court to bring the appellees into coru-t, and in which there is no appearance for such appellee, must be dismissed.</p>

<p>Appellate Procedure. — Assignment of Errors. — Estoppel.— Finding and Decree Entered as Ashed for by Appella,nt. — One who moves to substitute a new finding and decree in place of one already entered, and causes the same to be entered of record, which is done without objection or exception by any one, is precluded from assigning as error on appeal the overruling of a motion for a new trial and of a motion to modify the decree, both of which rulings were made before he procured the substituted finding and decree.</p>

<p>From, the Vanderburgh Superior Court.</p>

<p>Prom the Vigo Circuit Court.</p>

<p>Municipal Corporation. — Sewer. — Street Improvement. — Assessment. —The construction of a sewer under a street as part of a paving improvement, is within the authority to improve streets, conferred by a city charter upon the board of public works, although authority so conferred is limited by a provision that the cost of street improvements shall be estimated according to the whole length of the street, or so much thereof to be improved as is uniform in the extent and kind of the proposed improvement per running foot, and the cost of constructing drainage sewers as such is required to be assessed according to benefits to, or the area of, the lands affected, where the sewer is a necessary part of the street improvement, and is not to be used to drain the abutting property.</p> <p>Same. — Street Improvement. — “Resident Freeholders. ” — Statute ■ Construed. ■ — “Resident freeholders” within the meaning of a charter providing that after the confirmation of an original resolution for a street improvement, the same shall be conclusive on all persons, unless within ten days thereafter “two-thirds of all the resident freeholders upon the street” remonstrate against it, means resident freeholders upon the street, and not simply residents of the city, owning property on the street.</p>

<p>Injunction. — Want of Equitable Jurisdiction. — Dismissal. — Action to Enjoin Execution and Judgment. —A. suit to enjoin an execution and judgment cannot be dismissed on the ground of a want of equity jurisdiction, because there is a remedy at law, where the same judge, under a reformed system of procedure, exercises both law and equity powers, and the facts show a right to legal relief, which can be granted on amendment of pleadings.</p> <p>Same. —Against Judgment at Law. —Legal Remedy. —An injunction against the enforcement of a judgment at law cannot be granted where there is a legal remedy by review, in a code proceeding which is as practicable and efficient.</p> <p>Pleading. — Complaint for Review of Judgment. — Exhibit. — A complaint for review of a judgment, under R. S. 1894, section 627, must set forth as an exhibit a complete transcript of the judgment, or so much thereof as is necessary to fully present the error complained of.</p> <p>Review of Judgmfnt. —Guarantor. —Indorser.—Promissory Note. — ■ Statute Construed. —An accommodation guarantor or indorser of a note is entitled to review a judgment against him, under R. S. 1894, section 627, without reviewing the judgment against the makers, wdiere after the judgment against him the makers defeated the claim against them in the same action, on the ground of failure of consideration.</p>

<p>Erom the Allen Superior Court.</p>

<p>Appeal. — Dismissal. — Necessary Parties Appellant.— Appellate Procedure.— An appeal by a portion only of tire defendants against whom a joint judgment is rendered will be dismissed, although the other defendants axe made appellees, as they have a right to assail the judgment, and cannot do it in that character.</p>

<p>Contract. — In Violation of Statute. — Penalty. —• Recovery. —There can be no recovery as between the parties on a contract made in violation of a statute, the violation of which is prohibited by a penalty, although the statute does not pronounce the contract void or expressly prohibit the same.</p> <p>Hahe. — Patent Right. — Sale of Letters Patent. — Rescission.-— Letters Tendered Bach. — The tender back of letters patent by a buyer to the seller places the latter in statu quo so as to entitle the former to rescind the contract of sale on the ground that the letters were void for lack of novelty. (See note at end of opinion.)</p> <p>Evidence. — Parol. — Inadmissible to Extend Effect of Written-Contract. — Parol evidence is inadmissible to extend the effect of a written contract to abrogate a prior agreement beyond the terms of such contract where it is complete and there is no apparent am-„ biguity therein that requires an explanation.</p> <p>Injunction. —To Restrain Prosecution of Several Actions in Another State to Avoid Statute of This State. —All Parties Residents of This State. —The right to an injunction to restrain the prosecution of several actions on a contract for the recovery of different installments, commenced in the court of another State for the purpose of avoiding a statute of the State of the residence of the parties, affecting the validity of the contract, is not defeated by the fact that complainant has.other legal defenses available in the foreign jurisdiction.</p> <p>Same. —To Restrain Prosecution of Sevei'al Actions in Foreign State. —All Parties Residents of This State. —Assignee—A party to a contract is entitled to an injunction restraining the prosecution of several actions for the recovery of different installments thereunder, commenced by the assignee of the other party in the court of a foreign State for the purpose of avoiding a statute of the State in which the contract was made and to be performed, and in which ' both the -parties' and such assignee reside.</p>

<p>Will. — Action to Set Aside. — Failure to Make Provision for Granddaughter. — Instruction. — Presumption. —An instruction in an action to set aside a will upon the ground, inter alia, that the testator did not mention a granddaughter, or make any provision for her, either directly or as in her mother’s right, that the law presumes the testator overlooked or forgot her, and that she will take her share -under the law, whether the -will is upheld or not, is a prejudicial error, as there is no such presumption of law upon the facts, and its assumption deprives the omission of its significance upon the issue.</p>

<p>Evidence. — Notice.—Admissions.—Mining Boss. — Personal Injury of Servant. — Dangerous Condition of Mine. — Upon the issue as to knowledge, by a mining company, of the defect in the roof of the. mine, which caused an injury to an employe, evidence that after the accident the mining boss admitted that he had been notified of the defect, is inadmissible in the absence of evidence, offered or given, that at the time of the admission the latter was engaged in the discharge of any duty owing to the company, or that he was transacting any business for it whatever.</p> <p>Appellate Procedure. — Erroneous Instruction. — Instructions Not All in Record. — Reversal of Judgment. — The supreme court will not reverse a judgment for instructions not so palpably erroneous that no supposable instruction would have made them correct, where the instructions given are not all included in the record.</p>

<p>Constitutional Law. — Injunction.—Bond.—Due Process of Law. — ■ Allowing an injunction without a bond to prevent the use of property in violation of a statute does not deprive the owner of his property without due process of law.</p> <p>Same. — Stale Interfering with Use of Private Property. — Police Power. — The right of the State to interfere with the use of private property by its owner belongs to the police'power of the State.</p> <p>Same. — Police Power. — Horse Racing. — A statute prohibiting horse races during the winter months, or public raoe meetings on any track more than three times in any year, or more than fifteen days at a time, or more than twice in sixty days, or with less than thirty days between meetings, is a legitimate exercise of the police power of the State.</p> <p>Criminal Law. — Jeopardy.—Civil Remedy in Addition to Criminal. — Injunction.—A suit for an injunction against the violation of a statute and punishment for contempt of such an injunction, in addition to a criminal prosecution for the illegal act, do not violate the constitutional provision against putting a person twice in jeopardy for the same offense.</p> <p>Horse Racing. — Prohibition Of. — Statute Construed. — Change of Persons, Companies, Associations, or Corporations. — A change of the persons, companies, associations, or corporations who hold race meetings on the same track, does not relieve from or avoid the prohibition of the act of 1895, against holding race meetings more than three times in a year, or twice in sixty days, or with less than thirty days intervening.</p> <p>Statutory Construction. — Statute Providing Both Civil and Criminal Remedies for Its Violation. — Constitutional Law. — A provision for civil remedies and procedure, as well as criminal prosecutions for violation of other provisions of the same statute, does not make it invalid as including more than one subject of legislation.</p> <p>Same. — Violating Statute.- — Remedies Criminal and Civil. — Constitution. — The constitutional provision against local or special laws regulating practice in courts of justice is not violated by including in a statute a provision for remedies both civil and criminal in case of its violation.</p> <p>Same. — Construction.—History of the Times. — A court will examine the history of the times in construing a statute, so as to relieve from the mischief and accomplish the purpose of the act.</p> <p>Same. — Construction.—Horse Racing. — Extending Provisions. — Title of Act. — The terms “race” and “race meeting,” as used in the act of 1895, section 2, without expressly limiting them to horse racing, will not be construed as extending the provisions of the act to embrace a subject not expressed in the title, which is “An act regulating ¿orse racing.”</p> <p>Same. — Penal Statute. — Title of Act. — Extension of Meaning. — The doctrine of strict construction of a penal statute does not apply to expand or extend general words used in the body of a statute beyond the scope of the title, so as to make the act invalid.</p>

<p>From the Clark Circuit Court.</p>

<p>From the Lake Circuit Court.</p>

<p>From the Benton Circuit Court.</p>

<p>Bill of Exceptions. — Filing. — Secoi'd. — Appellate Procedure — A bill of exceptions cannot be considered on appeal, where there is nothing to show that it was ever filed in the office of the clerk of the trial court.</p> <p>Appellate Procedure. — Waiver of Error. — An error in overruling a demurrer is waived by failure to discuss the same in appellant’s brief.</p> <p>Special Finding. — Quieting Title. — Tenants by Entirety. — Seal Estate. — Failure to find that plaintiffs are husband and wife, is fatal to a judgment in their favor, in an action to quiet title to land, of which they allege they are “owners in entirety.”</p> <p>Ejectment. — Burden of Proof. — The burden of establishing, by affirmative proof, his title and right to possession, is upon plaintiff, in an action to recover possession of land.</p> <p>Same, — Complaint, Necessary Averment. — A complaint in an action to recover possession of land is fatally defective, where it fails to allege, as required by section 1066, E. S. 1894, that the plaintiff is “entitled to possession.”</p>

<p>Pleading.— Answer, When Demurrable, — Infancy.—Note.—Mortgage. —An answer, setting up defendant’s infancy as a full defense, both to a note and mortgage, is demurrable, where it is a defense only to the note.</p> <p>Same. — Complaint, When Not Demurrable. — Relief.—A'pleading, in the nature of a complaint, is not demurrable, where it states facts showing that plaintiff is entitled to any of the relief demanded.</p> <p>Real Estate. — Conveyance.—Disaffirmance of Mortgage by Infant Feme Covert. — Restoring Consideration. — Statute Construed. — The term “ conveyance of real estate,” as used in sections 3364 and 3365, R. S. 1894, relating to conveyances of land by infant feme coverts, comprehends mortgages of real estate as well as deeds of conveyance; and before such feme covert can disaffirm her mortgage she must restore the consideration received,, although she may disaffirm the note secured by the mortgage, thus avoiding personal liability.</p>

<p>Railroad. — Evidence.—Passenger Ticket, System of Issuing and Selling. — Number.—Date.—Evidence that defendant railway company, wliicli was sued for personal injuries alleged to have been received on a specified train, had a system of issuing and selling tickets by consecutive numbers, of stamping thereon the dates of their sale, and for the return and preservation of tickets canceled by conductors, and that the tickets returned as sold at the place where-plaintiff’s ticket was bought and dated on the day in question were taken up by other conductors than the one with whom plaintiff claimed to have ridden — is admissible to show that he was not on such train.</p> <p>New Trial. — Cause For. — Evidence as Upon Discovery. — Medical Examination. — Order of Court. — Alleged errors in requiring plaintiff to give testimony before the trial as upon discovery, and to submit to a medical examination out of court before the trial, are not “ errors of law occurring at the trial,” which may be presented on motion for a new trial.</p> <p>Same. — Newly Discovered Evidence. — “Faulty Memory." — A new trial for newly discovered evidence is properly refused, where the only excuse for failing to obtain such evidence on the trial was the applicant’s faulty memory.</p> <p>Instruction to Jury.- -Railroad. — Passenger.—Necessary Proof.— An instruction requiring it to appear by a fair preponderance of the evidence, that plaintiff was a passenger, and not a trespasser, on defendant’s train, to entitle him to recover, is proper, where the pleadings make such theory possible, if he was upon defendant’s train, and the evidence shows that he was not seen by the conductor and other trainmen who would have had opportunities to see him if he had been openly on the train.</p> <p>Same. — Rejected Offer to Prove. — An instruction that the jury should not consider as evidence mere offers to make proof, which offers are rejected, is properly refused. '</p> <p>Same. — As to Consideration of Evidence by Jury. — An instruction that the burden of proof is upon plaintiff to establish his cause of action by a preponderance of the evidence, and that in determining on which side the preponderance lies, the jury may consider the conduct and demeanor of the witnesses, their opportunities for knowing, their interest or lack of interest in view of all the “other evidence, facts and circumstances ” proved on the trial; and from all these ‘ ‘circumstances ’’ determine wdiere the preponderance lies— is not misleading as limiting their inquiry to the “ circumstances.”</p>

<p>Superior Court. —Appeal from General to Special Term Abolished. —Constitutional Law. — A statute abolishing appeals from the special to the general terms, of the superior courts Which were created by statute, and making proper provision for pending cases, is not unconstitutional.</p> <p>Statute. — Clerical Error. — Late of Approval of Act — A clerical error in stating in an amendatory act the date on which the amended act was approved, the title of which is given in full, and the date or approval of which is correctly given in the body of the act, does not render the amendatory act unconstitutional under Const. Art. 4, section 19, requiring every act to embrace but one subject, which shall be expressed in the title.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Prom the Marion Circuit Court.</p>

<p>Bill of Exceptions.— Signed, by Judge after Time Fixed for Filing. —Indorsement.—A bill of exceptions signed by the judge after the expiration of the time fixed for filing it cannot be considered,although there is an indorsement thereon by the judge that it was presented on a specified day within the time fixed.</p> <p>Same. — Time of Filing. — The bill, to become a part of the record, must be filed after it has been signed by the judge and not before.</p>

<p>From the Henry Circuit Court.</p>

<p>From the St. Joseph Circuit Court.</p>

<p>Erom the St. Joseph Circuit Court.</p>

<p>Appellate Procedure. — Cleric’s Certificate. — Reporter’s Longhand Manuscript of JSvidence.~Copy.~A. clerk’s certificate that the record on appeal contains copies of all proceedings is conclusive upon the Supreme Court, that the bill of exceptions is in the transcript by copying the original longhand manuscript of the evidence, and not by incorporating such original therein, as contended by the counsel for appellee.</p> <p>Municipal Corporation. — City.—Changing Grade of Street. — Evidence. — The establishment by a city of a prior street grade, essential to the right of a property-owner to recover damages for an alleged change of grade, should be shown by proof of authoritative acts and proceedings of the common council, in adopting a former town grade, or in designating a new grade.</p>

<p>Appellate Procedure. — Jurors.—Opinions Expressed. — Finding.— The finding of the trial court, that the charge that certain jurors had expressed opinions as to the merits of the case, is not sustained, is conclusive on appeal, where there is evidence supporting it.</p> <p>Same. — Instructions.—Murder.—Self-defense. —Reasonable Doubt.— The refusal of a requested instruction in a prosecution for murder, in which the facts claimed to have been proved by the defendant and the law applicable thereto are stated, is not prejudicial, where • the instruction on the law of self-defense, which was the only defense relied upon, was full and complete and favorable to the defendant, and the law as to reasonable doubt and presumption of innocence was fully explained.</p> <p>Criminal Law. — Homicide.—Self-defense.—The law will not, as a general rule, excuse one who repels a blow with the fist by stabbing his assailant.</p> <p>Instructions to Jury. — Consideration of Evidence. — Criminal Law. — Impeachment.—An instruction in a criminal case, that the jury should consider the impeaching evidence in estimating the weight to he given the testimony of a witness, and also the fact, if they so find it, that the moral character of a witness has been successfully impeached, is proper.</p> <p>Same. — Murder.—Self-defense.— Self-defense is sufficiently covered by a charge in a prosecution for murder, requiring that, before conviction, even in the lowest degree, each of the jury must be satisfied under the evidence of the existence of every ingredient of the crime, and convinced of defendant’s guilt beyond a reasonable doubt, “by the evidence of whatever class it may be, and considering all the facts and circumstances in the evidence as a whole,” and stating that the burden is on the prosecution to prove that the accused actually killed the deceased “under such circumstances as the law will not excuse,” where it was the only defense. .</p>

<p>Erom the Montgomery Circuit Court.</p>

<p>Receiver. — Amendment of Application For. — Foreclosure of Mortgage. — Expiration of Time for Redemption. — An. application by the assignee of a certificate of sale under foreclosure, for the appointment of a receiver to collect rents and profits and apply the same to the payment of mortgages, may be amended by setting up facts entitling the plaintiff to the relief sought, after the reversal of an order appointing such receiver, although the period of redemption has expired in the meantime, where there is a controversy between the plaintiff and the mortgagor over the amount in the hands of the receiver.</p>

<p>Appellate Procedure. — No Reference to Page or Dine in Transcript. — Deposition.—In the absence of a reference to any page or line of the transcript where the rulings may be found, a claim of error in respect to suppressing or refusing to suppress questions and answers in depositions is unavailable.</p> <p>Assignment op Errors. — Collective Assignment. — Appellate Procedure. — Error assigned to a series of instructions given or refused is unavailable if any one of the series is not subject to the objection.</p> <p>Common Carrier.' — Liability for Injuries Inflicted on Passenger by Servant of Carrier.- — Defense.—A carrier cannot escape liability for injuries to a passenger on a steamboat, caused by the quarrelsome, violent, and fighting crew, by showing that men of that class are usually employed for such work. (See note at end of opinion.)</p> <p>Conflict of Laws. — Tort Committed on Ohio River. — Jurisdiction. —Summons.—The law governing a right of action for death from a wrong committed on the Ohio river, between Indiana and Kentucky, including the matter of service of summons and return, when the action is brought in Indiana, is the law of that State as much as if the Ohio river was wholly within the State.</p> <p>Same. — Foreign Administrator, Action by in This State. — The lack of ' any statute giving a right of action in similar cases in the State where an intestate resided does not preclude a right of action by a foreign administrator for wrongful death in this State, under section 284, R. S. 1881.</p> <p>Jurisdiction. — Ohio River. — Courts of Indiana have concurrent jurisdiction of causes of action arising on the Ohio river, between this State and Kentucky, by virtue of the compact with Virginia, under which Kentucky became a State.</p> <p>Deposition. — Cross-Examination Admissible in Evidence. — One who has attended the taking of the deposition, and cross-examined the witness, has no power to exclude the reading of the cross-examination as a part of the deposition.</p> <p>Summons. — Wharfmasters.—Common Carrier. — Wharfmasters, who receive and discharge freight for a steamboat company, and are authorized to transact business in the name of the corporation, may be served with summons against the company, if the chief officer of the company is not found in the county, under section 316, E. S. 1881.</p> <p>Same. — Return Of.-Affidavit. — Agent.—Common Carrier.-Affidavits that persons on whom summons was served, were not agents of a steamboat company, are insufficient to overcome a return of service stating that they received and discharged freight for the company.</p>

<p>Erom the Parke Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Receiver. — Nonresident Plaintiff. — Overruling Motion for Bond, for Costs. — An appointment of a receiver upon the application of plaintiff is not invalid because of the erroneous overruling of a previous motion by defendant to require plaintiff as a nonresident to file a bond for costs, under section 598, R. S. 1894.</p> <p>Same. — To Operate Oil Wells Pending Action for Specific Performance. — Nonresident Defendants. — The appointment of a receiver to operate oil wells pending an action for the specific performance of a contract to assign a lease is authorized, where defendant, who is a nonresident without property in the State, save the machinery on the land, is operating the wells and selling the product.</p>

<p>Prom the Lawrence Circuit Court.</p>

<p>Contract. — In Restraint of Practice of Medicine. — Construction.— Territory. — A stipulation, that in consideration of the purchase of a physician’s property, the seller will, within a reasonable time, leave the field of practice, implies an agreement that he will not*thereafter practice in the territory named.</p> <p>Same. — In Restraint of Practice of Medicine.— Consideration.— Separate Property of Wife.- — That a house in consideration of the purchase of which a husband covenanted to retire from the pz-aetice of medicine in a specified territory was the separate property of his wife, who received the entire consideration therefor, and was built for and used as a residence, and not as a physician’s office, does not relieve him from his covenant.</p> <p>Same. — Against Practice of Medicine. — Consideration.—Injunction.— The adequacy of the considez-ation of a contract not to engage in the practice of medicine within a specified tez-ritory, will not be inquired into in an action for an injunction against the obligor, but it is sufficient if some legal consideration appear.</p> <p>Appellate Procedure. — Dismissal of Appeal. — Injunction.—Contract Against Practice of Medicine. — An appeal from a judgment for defendant, in the action to enjoin him from practicing medicine in a specified territory under a covenant not to practice therein, in consideration of a purchase of property by the covenantee, will not be dismissed because during its pendency the appellant has located and is practicing medicine in a territory reaching to portions of the appellee’s former field of practice.</p>

<p>From the Marion Superior Court.</p>

<p>Receiver. — Leave of Court to Bring Action. — Sufficiency of Complaint.— The complaint in an action by a receiver, in his own name, to sufficiently state a cause of action, must show by direct and positive averments, that leave of court to institute and prosecute the action has been first obtained.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Vigo Circuit Court.</p>

<p>From the Daviess Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>From the Grant Circuit Court.</p>

<p>Costs. — Proportional.—Drainage Proceeding. — Appeal.—An appellant in a proceeding under the statutes of this State, for the establishment of a drain, who succeeds on appeal as to the one issue only, is not entitled to recover all her costs, but only a proportional part thereof.</p> <p>Drainage. — Statute Amended Pending Action. — Abatement.—A proceeding for the establishment of a drain, instituted under sections 4285-4317, E. S. 1881, did not abate upon the amendment of such sections, pending the proceedings, by the passage of the act of 1893, p. 329, but thereafter the proceedings were governed by the provisions of the amendatory act.</p> <p>Same. — Drain Across Railroad Right of Way. — Who May Object.— A property-owner cannot complain of the location of a public drain established under the statutes of this State, across the right of way of a railroad; but such objection must be made, if at all, by the railroad company.</p> <p>Same. — Questions Not Considered on Appeal. — Questions not properly presented to the board of commissioners in proceedings for the establishment of a drain cannot be raised upon appeal to the circuit court, unless they go to the jurisdiction over the subject-matter.</p> <p>Same. — Assignment of Error. — Remonstrance.—Pointing Out Items on Which Evidence Will Be Admitted. — Practice.—No question is-presented by an assignment that the court erred in indicating certain items in a remonstrance in a proceeding for the establishment of a drain under the statutes, upon which the remonstrants would not be permitted to introduce evidence; but the question of the admissibility of evidence as to such items must be raised by an offer of evidence and an exception to the refusal to admit the same.</p> <p>Eminent Domain. — Appropriating Public Property to a Second Public TJse. — The rule that property appropriated to one public use cannot be appropriated to another public use, applies only when the second public use will naturally injure or destroy the first public use.</p> <p>Judgment.' — Drainage.—Finding.—Collateral Attach. — A finding of ' the board of commissioners in a proceeding for the establishment of a drain, that the notice required by section 5663, E. S. 1894, was given, and the judgment of affirmance in the circuit court, are conclusive as against a collateral attack, where some notice was in fact given.</p> <p>Vekdicjt. — Informality.—A verdict is not bad for informality if the court can understand it.</p>

<p>Appellate Procedure. — Appeal from Interlocutory Judgment.— Appointing Receiver. — Sufficiency of Complaint.- — The sufficiency of a complaint will not be considered upon appeal from an interlocutory judgment appointing a receiver as auxiliary to a pending action, further than to test its sufficiency so far as it relates to the appointment.</p> <p>Receiver. — Affidavit.—Sufficiency of Complaint. — Temporary Pending Suit. — -Without Notice. — A liberal construction will be given to a complaint in determining its sufficiency so far as it relates to the appointment of a temporary receiver pending the action, but it must state a cause for such appointment; and if the application is made without notice, the cause for an appointment without notice must appear either in the verified complaint or by affidavit, under section 1311, R. S. 1894, providing that a receiver shall not be appointed without notice of the application to the adverse party, except upon sufficient cause shown by affidavit.</p> <p>Same. — Appointment Without Notice. — Insufficient Cause. — Affidavit. —Sufficient cause within the meaning of section 1311, R. S. 1891, forbidding the appointment of a receiver without notice to the adverse party, except upon sufficient cause shown by affidavit, is not shown where it affirmatively appears that notice could easily have been given, and it does not appear, either by affidavit or by verified complaint, that irreparable or other damage would have resulted from giving the same.</p>

<p>Erom the Decatur Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>Constitutional Law.— Railroad. — Blackboard Law.— Time of Arrival of Train, etc.■ — The discrimination against travelers from railway stations at which there are no telegraph offices, in sections 5186-5187, E. S. 1894, requiring railroads to place in each passenger depot at any station where there is a telegraphic office a blackboard, and to note thereon whether schedule trains are on time, and if late how much, does not conflict with Ind. Const., article 1, section 23, forbidding the granting to any citizen or class of citizens privileges or immunities which on the same terms shall not equally belong to all citizens, or with the provision of the federal constitution, that no State shall deny to any person within its jurisdiction the equal protection of the law.</p> <p>Statute.— General. — Legislative Discretion. — “Whether a general law could be made applicable within the meaning of Ind. Const., article 4, section 23, providing that “ In all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State,” is, as to any case not specially enumerated, a legislative and not a judicial question.</p> <p>Same.- — Blackboard Statute. — Local or Special. — Penalty.—Judgment. —Prosecuting Attorney. — The act of March 9, 1889 (sections 5186-5187, E. S. 1894). is not a local or special law within the Ind. Const., article 4, section 22, forbidding local or special laws for the punishment of crimes and misdemeanors, as requiring a special form of judgment, or a judgment in favor of the in'osecuting attorney, although a portion of the penalty recoverable by the State is to be paid to the prosecuting officer.</p> <p>Same. — Uniform Operation. — General.—A law which operates in all parts of the State in a similar manner where the same circumstances and conditions exist, is a law of uniform operation within Ind. Const., article 4, section 23, providing that in all cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.</p> <p>Appellate Procedure. — Revieiv of Former Decision. — Constitutional Question. — Statute.—A former decision by the Supreme Court upon the constitutionality of a law will not be reviewed by the same court in another action, although the personnel of the bench has changed in the meantime, and some other court might, if the question were originally presented to them, incline to a different view from that formerly held.</p> <p>Statute op Limitations. — When Will Not Run Against the State.— Penalty. — The two years’ limitation under section 294, E. S. 1894, against actions for the recovery of a statutory penalty, does not apply to an action for such a penalty in favor of the State, as section 805 provides that limitations of actions shall not bar the State except as to sureties.</p> <p>Defense. — Action by State to Recover Penalty. — Constitutional Lato. —The violation of Ind. Const., article 8, sections 2, 8, providing that fines assessed for breaches of the penal laws of the State and all forfeitures which may accrue, shall constitute a part of the common-school fund, by the provision of a penal statute, is not available in defense of an action by the State for the recovery of the penalty prescribed by such statute.</p> <p>Eaxlboad.- — Blackboard Statute. — Time for Necessary Provisions for Observance of Requirements. — Eailroad companies were not entitled to any time after the proclamation of the act of March 9, 1889, which took effect sixty days after its approval, to make the necessary provision for the observance of its requirements as to noting upon blackboards to be maintained at stations whether schedule trains are on time, and, if late, how much, as it is provided that compliance shall begin “immediately after taking effect of the áct.”</p>

<p>Erom the Clay Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Sale.— For Cash.— Personal Property.— Constructive Delivery.— Seller’s Dien. — Resale by Purchaser. — A seller for cash of lumber which, remains in his lumber yard is not deprived of his lien for the purchase price as against a purchaser from the buyer, by setting it apart in such manner as to constitute a constructive delivery sufficient to vest title in the buyer.</p> <p>Same. — Subpurchaser.—Notice.—Lien of First Vendor. — Possession.— A subpurchaser who knows that lumber purchased by his seller is in the yard and apparently in the possession of the original seller is bound to take notice that the latter is claiming a lien thereon for unpaid purchase money.</p>

<p>Town. —Annexation of Territory. — Sufficiency of Reasons Not Reviewable on Appeal. — County Commissioners. — The sufficiency of the reasons stated in a petition for the annexation of territory to a town cannot be considered upon appeal, at least in the absence of a plain abuse of the discretion necessarily vested in the county board of commissioners, by the omission of the statute to prescribe what reasons shall be set forth.</p> <p>Same. — Annexation of Territory. — Evidence.—Remonstrant.—Use of Streets. — School Children in Such Territory. — In a proceeding under statutes for the annexation of territory to a town, it may be shown that the office of the remonstrant is within the town, that the streets of the town are used in the transportation of the products manufactured by him within the territory in question that other-factories in the same territory are in prospect and that children residing in such territory attend the schools in the town.</p>

<p>From the Carroll Circuit Court.</p>

<p>From the St. Joseph Circuit Court.</p>

<p>Erom the Putnam Circuit Court.</p>

<p>Appellate Procedure. — Rehearing.—Points Which Will Not Be Considered. — Points not specifically made in the original briefs cannot be made on petition for a rehearing in the Supreme Court.</p> <p>Promissory Note. — Recovery of Interest Paid, in Excess of Contract Rate. — Mistake of Fact. — Assumpsit.—Payment of interest on a note, in excess of the contract rate, under a mistake of fact, may be recovered back whether or not the mistake was mutual.</p> <p>Demand. — Note.—Payment of Excessive Interest. — Answer.—Cross-complaint. — No demand is necessary before an answer, in an action on a note, claiming payment of excessive interest under a mistake as to the contract rate.</p> <p>Pleading. — Set-Off.—Counterclaim.—Partial Answer. — A plea setting up a set-off or counterclaim to part of the claim sued on is not bad in failing to respond to the balance, although it is directed to the entire cause of action.</p>

<p>Estoppel. — Married Woman. — Surety.—Mortgage.—Note.—A wife is not estopped to deny that she executed notes and a mortgage as surety merely for her husband, by a recital in the mortgage that the mortgagors convey the real estate and also the stock of goods, which was the consideration of the notes, that “we” have purchased from the mortgagee, and that “ we” acknowledge that we own the real estate in equal shares, where she had nothing to do with the sale except to sign the notes and the mortgage at the request of her husband after it was consummated. .</p>

<p>From the Porter Circuit Court.</p>

<p>Receiver. — To Harvest and Sell Crops. — Nexv Trial as of Right.— Ejectment. — A receiver to harvest and sell crops will not he appointed pending the statutory new trial in an ejectment action, as the undertaking to pay all costs and damages which shall he recovered in the action, required by section 1076, R. S. 1894, as a condition of a new trial, affords an adequate remedy at law if damages for conversion of the crops would be recoverable in the action, and, if not recoverable, the remedy would be improper.</p> <p>Practice. — Motion.—Procedure.—A mover, under a notice of a motion to be made at chambers on a day and horn specified, or as soon thereafter as counsel can be heard, must proceed within such reasonable time after the time fixed in the notice and within the convenience of the judge as will enable his adversary to be present and be heard without attending through protracted periods of delay and uncertainty.</p>

<p>Prom the Grant Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Municipal Corporation. — Town.—Lighting Expense. — Payable Out of General Fund. — The expense of lighting a town may be paid out of the current revenues of the town, without making a special levy to provide funds for that purpose, even though the effect of such payment is to postpone judgment or other creditors of the town.</p> <p>Same. — Toum.—Lighting Contract.— Debt.— Statute Construed.— A ■contract for lighting a town, the lights to be paid for annually as furnished, does not create a debt within the meaning of section 4877, R. S. 1894, requiring that an indebtedness shall not be incurred except on petition of a majority of the owners of the taxable real estate of the town. (See note at end of opinion.)</p> <p>Pleading. — Complaint.— Injunction.— Town.— Contract for Lighting. — An allegation in the complaint in an action to restrain a town, from entering into a contract for lighting its streets, “that the town will not have money to meet its indebtedness wdien the same matures above the amounts necessary for the necessary running expenses of said town, and will not receive from the present levy sufficient funds to pay said indebtedness, and cannot make adevy in time to pay the same as it matures,” is insufficient, as a mere conclusion.</p>

<p>From the Union Circuit Court</p>

<p>From the Howard Circuit Court.</p>

<p>Contract. — In Restraint of Trade. — Interdicted, Territory, the Whole State Except One City.-— Business, Selling Oil in One City.— Against Public Policy. — A contract by which, one engaged in selling oil in one city binds himself to refrain from carrying on his business in the whole State, with the exception of one other city, is unreasonable as in restraint of trade, and void and unenforcible even as to the city in which he had been engaged in the business.</p>

<p>Township Trustee. — Liability of Township for Office Rent. — Township of Less than 25,000 Inhabitants. — A township trustee has no power, under section 8088, E. S. 1894 (section 6008, R. S. 1881), requiring trustees of townships of less than 25,000 inhabitants to set apart for the transaction of the township business such days of the week or month as such business might require, to bind the township for the rent of an office in which to conduct such business.</p>

<p>Prom the Newton Oircuit Court.</p>

<p>From the Jackson Circuit Court.</p>

<p>Evidence. — Special Finding, When Not Sustained. — Building and Loan Stocle. — Assessment.—A finding that there is due plaintiff in principal and interest, on a note in suit, a specified sum, is not sustained by evidence showing that the suit was brought to recover an assessment made by plaintiff on defendant’s stock, and not upon any unpaid principal or interest.</p>

<p>Pleading. — Complaint.—Easement by Prescription. — Private Way.— Title. — A complaint alleging that plaintiffs are the owners of certain land; and that the only means of access thereto is over a specified road; and that the same has been used by plaintiffs and the grantors for fifty years continuously; and that during all such time such road has been and still is an easement and right of way connected with plaintiffs’ land, sufficiently alleges their title to such road to withstand demurrer.</p> <p>Same. — Complaint.—Easement.—Adverse User. — An allegation that plaintiffs and their grantors have for fifty years continuously used a private road under a claim of right, as a means of access to their land, with defendant’s knowledge and acquiescence, and without objection on his part, sufficiently alleges that such use was adverse.</p> <p>Special Finding. — Private Way. — User.—Presumption.—Title by Prescription. — Failure to find whether the use for fifty years of a private road by plaintiffs and their grantors was permissive is equivalent to a finding'that it was not permissive, under the statute providing that an unexplained use of an easement for twenty years will be presumed to be under a claim of right, or adverse and sufficient to establish title by prescription.</p> <p>Water-course. — Defined.—Diverting.—Water which has a definite source in a spring, and takes a definite course, is a water-course, which cannot be lawfully diverted from its natural channel so as to injure another’s land, although at a certain point it spreads over marshy ground without a defined channel, where it again flows in such a channel. (See note at end of opinion.)</p> <p>Surface Water. — Embankment.—Collecting and Discharging in a Volume on Private Way. — A land-owner cannot, by an embankment, collect surface water on his own land and send it out in a volume on the private road of another to his injury.</p>

<p>Appellate Procedure. — Correct Result Reached. — Practice.—Trial. —The withdrawal of a case from the jury, and rendering judgment for defendant, without any finding of either court or jury, instead of directing the jury to return a verdict for defendant, although error, is not cause for reversal where the correct result is reached.</p> <p>Railroad. —Highway Crossing. — Contributory Negligence. -Damages. One who drives at a trot towards a railway crossing, without looking until his horse’s head runs against a passenger coach, which he might have seen before reaching the track if he had looked, is guilty of such contributory negligence as will prevent a recovery.</p>

<p>Erom the Wells Circuit Court.</p>

<p>Appellate Procedure. — New Trial. — Affidavits.—Record.—Alleged error in denying a motion for a new trial will not be considered on appeal, where affidavits filed in support of such motion are not brought into the record by order or bill of exceptions.</p> <p>Deposition. —Evidence.—Rebuttal.—Payment.—Depositions containing evidence tending to rebut evidence given by defendant under a plea of payment may be read to the jury in rebuttal.</p> <p>Same. — As Evidence in Rebuttal. — Abuse of Discretion. — -Permitting depositions embracing evidence in chief only to be read in rebuttal is not necessarily an abuse of discretion.</p> <p>Evidence. — Parol.—Of Statements Made on Examination and Toteen Down in Shorthand, and Signed by the Party. — Parol evidence is admissible of statements made by one of the parties in an examination which was taken down in shorthand only, and does not appear to have been taken before an authorized officer, although it was signed by such party.</p> <p>Witness. — Refreshing Memory from Shorthand Notes. — A witness may refresh his memory by reference to shorthand notes' of an examination of one of the parties before a person whose official character is not disclosed, where he afterwards states that independently of such notes he remembers that the statements made therein were made by such party on examination.</p>

<p>Appellate Procedure. — Instructions Given. — Not Absolutely Incorrect. — Evidence Not in Record. — A judgment will not be reversed on appeal, in the absence of the evidence from the record, for giving instructions which are not absolutely incorrect under any state of evidence.</p> <p>Same. — Evidence.—Acts of Drunkenness by Plaintiff’s Intestate.— Presumption. — Evidence as to acts of drunkenness on the part of plaintiff s intestate will be presumed, on appeal, in the absence from the record of anything showing the contrary, to have been introduced in rebuttal against evidence to establish an allegation of the complaint that he was a “sober and industrious man.”</p> <p>Same. — Instructions Refused. — Evidence Not in Record. — Instructions will be presumed on appeal to have been properly refused, although they are abstractly correct, in the absence of the evidence from the record.</p> <p>Evidence. — Specific Acts of Intoxication. — Mitigation of Damages.— Death. — Evidence of specific acts of intoxication on the part of plaintiff's intestate is admissible in an action for negligently causing his death, in mitigation of damages.</p>

<p>Pleading. — Complaint.—Review of Judgment. — Tax Lien. — A complaint in an action to review a judgment finding that defendant has a valid and paramount lien for taxes on land sold to him in 1887, for delinquent taxes for 1886 and previous years, alleging that delinquent taxes for a specified amount were illegally placed on the city tax duplicate for 1881, is demurrable where it fails to show that such illegal taxes were a part of the taxes for which the land was sold in 1887.</p> <p>Review oe Judgment. — Complaint.—Material New Matter. — Taxes.Reasonable diligence in discovering the facts of the illegality of delinquent taxes spread upon a city tax duplicate nine years before the rendition of a judgment sought tobe reviewed is not sufficiently averred by an allegation in the complaint that plaintiff made search for the facts, but could not find them in the city or county offices.</p>

<p>Evidence. — Exclusion.—Sparks from, Railroad Engine. — Exclusion of evidence as to how a witness knew that sparks emitted from defendant’s engine were alive is harmless, if error, where he testifies that he has seen live sparks thrown a specified distance.</p> <p>Instructions to Jury.— Negligence.— Railroad. — An instruction which, after stating that the negligence of defendant charged in the complaint consists in its engine being old and out of repair, and not equipped with a proper spark arrester, and also in being negligently and carelessly operated, states that the issue is whether or not the evidence and circumstances preponderate in favor of the proposition that the fire was caused by defendant’s negligence “in operating its engine in the manner alleged,” is not prejudicial error as confining the negligence to the mere operation of the engine, especially where the jury are elsewhere instructed that defendant would be liable if the fire was caused by the failure to use proper appliances, -by suffering them to be out of order, or by negligently operating the engine, or other negligence.</p> <p>&AHE.~Preponderance of Evidence. — Complaint.—An instruction that if a careful consideration of the evidence and circumstances does not create an honest belief “that the allegations of the complaint are true ” there is no preponderance for plaintiff, is not objectionable on the ground that it requires plaintiffs to prove all the allegations of their complaint, where from the other instructions the jury must have understood that the plaintiffs were simply required to prove their alleged cause of action by a preponderance of the evidence.</p> <p>Same. — Impeached Witness, Testimony Of. — An instruction that the jury have the right to reject all the testimony of a witness who has been impeached by proof that he has made contradictory, and inconsistent statements out of court concerning material and relevant matters, is proper under section 515, R. S. 1894, providing for impeachment by such proof.</p>

<p>Erom the Marion Superior Court.</p>

<p>Contributory Negligence.— Appellate Procedure. — Contributory negligence on the part of plaintiff in an action for personal injuries will not be presumed where the complaint is attacked on appeal by an assignment of error in overruling defendant’s motion in arrest of judgment, but no facts are alleged indicating that plaintiff was negligent, and there is an allegation that he was not negligent.</p> <p>Appellate Procedure. — Complaint, Sufficiency Of. — A complaint will not be held insufficient as against an objection first made on appeal, where it contains enough to bar another action.</p> <p>Master and Servant. — Assumed Risk. — Construction of Railroad Bridge. — An employe engaged in building a railway bridge, who knows that wedges used in the construction of a track on which heavy timbers are conveyed are liable to slip out of place, assumes the risk of injury from that cause.</p> <p>Same. — Assumed Risk. — Construction of Railroad Bridge. — An employer is not liable for an injury to an employe engaged in constructing a railroad bridge, caused by the slipping out of a wedge used in the construction of a track on which to convey heavy timbers, where the employe participated in the construction of the track and in the placing and use of the wedges, and knew of their liability to slip out.</p> <p>Same. — Contributory Negligence. — Construction of Railroad Bridge. —An employe engaged in constructing a railroad bridge is guilty of contributory negligence in failing to observe whether a wedge used in the construction of a track on which heavy timbers are conveyed, is out of place, so as to render the track unsafe, before attempting to convey such timber over it, where he knows that the wedge is liable to slip out of place.</p>

<p>Common Schools. — Surplus Dog Fund. — How Distributed. — Township Trustee. — The surplus dog fund, in the hands of a township trustee should be distributed among the school corporations in the township in proportion to the school population of each corporation at the time when such fund should have been distributed, where, since its collection, the division lines of such corporations have been changed.</p>

<p>Bill of Exceptions.'— Filing. — Record.—A bill of exceptions will not be considered as part of the record where the transcript does not show that it was ever filed in the office of the clerk of the trial court.</p> <p>Appellate Procedure. — Court Directing Verdict. — Evidence Not in Record. —A direction of a verdict for defendant will be presumed, on appeal, to have been justified by the evidence, where the evidence is not properly in the record.</p>

<p>Mandamus. — By a County Against the Auditor of Another. — Attorney’s Fee. — Appeal.—Criminal Law. — One county cannot maintain mandamus against the auditor of another county to enforce collection of a claim by the former county against the latter, for money paid an attorney for the State on appeal in a criminal action transferred to such former county from the latter but such claim must, under section 7845, R. S. 1894, be presented to the commissioners of the latter county.</p> <p>Practice. — Maxim.—Notice.—Every one is entitled to his day in court, and no one shall be condemned unheard.</p>

<p>Erom the Jefferson Circuit Court.</p>

<p>From the Huntington .Circuit Court.</p>

<p>From the Marion Circuit Court.'</p>

<p>From the Jennings Circuit Court.</p>

<p>From the Vigo Circuit Court.</p>

<p>From the Adams Circuit Court.</p>

<p>From the Lake Circuit Court.</p>