Volume 144 — Indiana Reports

<p>Deed.— Construction.— Joint Tenancy. — Tenancy by Entirety. — Where a deed conveying land to a husband and wife contains the stipulation, “To have and hold the same to the said Samuel Gor.don and Phoebe Gordon, his wife, in joint tenancy, their heirs and assigns forever,” the conveyance vests an estate in joint tenancy in the husband and wife, and they do not hold as tenants by entirety; the latter part of the phrase, “their heirs and assigns forever,” being superfluous and in no way affecting the meaning or intent of the grantor.</p> <p>Same.—Construction.—No Ambiguity.—Understanding of Parties.— What the grantor or grantees of a deed understood by the terms of a deed, or in what manner they subsequently treated it, has no bearing on its construction, where there is no ambiguity in the deed.</p> <p>Will.—Interest of Joint Tenant not Descendible.—The interest of a joint tenant not being descendible, such tenant has no right or power, under section 2726, R. S. 1894 (section 2556, R. S. 1881), to devise the same by will.</p> <p>Mortgage.— Joint Tenancy—The joint tenant may mortgage his interest in the joint estate in like manner as though he were a tenant in common, and to the extent of the mortgage lien the right of the survivor will be destroyed, and the equity of redemption at the death of the tenant will be all that will fall to the surviving companions.</p> <p>Harmless Error.—Ultimate Judgment Right.—Intervening errors will be deemed harmless, where the ultimate judgment is right.</p>

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

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

<p>Bill of Exceptions.—Filing.—Statement in Record.—A bill of exceptions forms no part of the record, where there is no statement in the transcript that it was ever filed in the office of the clerk of the trial court.</p> <p>Appellate Procedure. — Continuance. — Bill of Exceptions. — Alleged error in refusing a continuance will not be considered on appeal, where the bill of exceptions is not properly in the record.</p> <p>Criminal Law. — Affidavit and Information. — Quashing.— Title of Cause.—Name of Court.—An irregularity in an information in failing to give the title of the cause and the name of the court, as required by section 1800, R. S. 1894, is not fatal, under section 1825, providing that no information shall be set aside for mistake in the name of the court or county in the title, or any other defect which does not tend to prejudice defendant’s substantial rights upon the merits.</p> <p>Same.—Affiadvit, Sufficiency Of.—Crime, Where Committed.—An affidavit in the caption of which a given county and State are named, which refers to the “county and State aforesaid,” and charges that defendant did “then and there, at and in said county,” commit a given crime, sufficiently charges that the crime was committed in such county.</p>

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

<p>Witness.—Nonexpert.—Insanity.—Insanity or unsoundness of mind cannot be proved by a nonexpert witness unless he first gives the facts upon which his opinion is based.</p> <p>New Trial.—Insufficiency of Evidence.—The trial judge should set aside a verdict and grant a new trial, where a verdict is returned which is unwarranted by the evidence.</p> <p>Will.—Testamentary Capacity.— Evidence.— Verdict.— A verdict tbat one was without testamentary capacity cannot rest upon the opinions of witnesses for the contestant that testator’s mind was not very sound, where it appears from other parts of contestant’s evidence that he had mind enough to know the extent and value of all his property, the names of those who might or ought to be the natural objects of his bounty, and was able to hold them in mind long enough to dictate and have his will prepared.</p>

<p>Corporation.—Obligation Incu-rred by President.— Liability.— Agency.—A corporation is liable on obligations incurred by its president, without direct authority, either by virtue of his office or by express sanction of the board of directors, where he is held out by th® managers, in the general course of business as having such authority. (See note at end of opinion.)</p> <p>Same.—Not&by One Corporation in Favor of Another. — Common Directors. —A note made by one corporation in favor of another is not invalid merely because the two corporations have common directors, where it represents a debt justly owing from the maker to the payee</p>

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

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

<p>Appeal.—Drainage Proceeding.—County Commissioners.—Alleged errors of the board of county commissioners in proceedings for a public ditch, cannot be considered on appeal from a judgment of the circuit court on appeal from a decision by the county commissioners.</p> <p>Same.—Drainage Proceeding.—Motion to Dismiss Petition.—Alleged error in overruling a motion to dismiss a petition for drainage on a first appeal to the circuit court from the decision of county commissioners, in which the complaining party succeeded, will not be considered on appeal from a'final judgment of such court on a subsequent appeal from the proceedings of such board.</p> <p>Drainage.—Location of Ditch.—Constructing Diagonally Across Land.-—Discretion of Viewers.—A public ditch may be constructed diagonally across land, where it is the most eligible route in the discretion of the viewers, under section 5659, E. S. 1894, requiring the viewers, where it will not be detrimental to the usefulness of the work to locate the ditch on boundary lines, and, so far as practicable, to avoid laying the same diagonally across lands, but not to sacrifice the general utility of the ditch for such purpose.</p> <p>Burden of Proof.—Drainage Assessment.-—The burden of proving that assessments made by viewers in proceedings to construct a public ditch, are not in proportion to the benefits, rests upon a remonstrant.</p> <p>Witness.—-County Assessor.—Drainage.—A county assessor who is also a viewer in proceedings to construct a public ditch, is competent to testify as to the value of lands to be affected by the proposed drainage.</p> <p>Verdict.—When Responsive to Issues.—Drainage.—A verdict in the circuit court on the trial de novo of proceedings to open a public ditch, that the jury find for the petitioners, and that the proposed ditch will be of practical utility and conducive to public health, and that the assessments in the viewers’ reports are in proportion to the benefits derived, and that no damages should be allowed a specified person—is responsive to the issues allowed by section 5671, E. S. 1894, authorizing an appeal to be taken.</p> <p>Appellate Procedure.—Instruction.— Drainage.— Damages and Benefits.—An instruction that in determining the damages from digging a ditch, the value of any benefits shall be deducted therefrom, is not ground for reversal on the ground that the benefits might have exceeded the damages, where no instruction in that regard is asked.</p>

<p>Evidence.—Admission of Proceedings of Board of School Trustees. —Parol Testimony.—Appellate Procedure.—A party cannot object to the admission of the proceedings of a board of school trustees because it is merely signed by the secretary, where he has objected to the admission of parol testimony of the contents thereof on the ground that the record is the best evidence.</p> <p>Same.—Competency.—Discretion of Trial Court.—Whether the record of the transactions of a board of school trustees, signed merely by the secretary, is sufficient to show the making of an alleged illegal contract, is to be determined by the trial court.</p> <p>Injunction.—Illegal Contract.—Board of School Tmistees.—That the execution of an illegal contract by a board of school trustees for the payment of money to one of its members would constitute a cause of action upon the bond of such member, does not afford an adequate remedy at law, so as to defeat an action by a taxpayer to enjoin the threatened execution of such contract.</p> <p>Same.—Taxpayer, Who is.—Suit to Enjoin 'Misapplication of Public Funds.—An owner of property which has been entered for taxation, who is liable to pay the taxes thereon as soon as they are collectible by law, is a taxpayer of a town within the meaning of the statutes permitting an action by a taxpayer to enjoin the misapplication of public funds, although he has not resided long enough in the town to actually pay taxes.</p> <p>Same.— Illegal Contract.—Public Funds.—-Board of School Trustees.—When Action Will IAe.—An action by a taxpayer to enjoin the board of school trustees from executing an illegal, contract, providing for the paying out of public funds contrary to law, will lie as soon as the steps necessary to the consummation of such illegal purpose have been taken; and it is not necessary to wait until the board is disbursing the money.</p>

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

<p>Constitutional Law.—Due Process of Law.—Mechanic’s Lien.— Statute Construed,.—Section 7257, R. S. 1894, providing that a mechanic’s lien may he acquired by filing in the recorder’s office a notice of intention to hold the lien, within sixty days after performing labor or furnishing material, is not unconstitutional as depriving the owner of his property without due process of law.</p> <p>Mechanic’s Lien.—For Materials Furnished to Contractor or Subcontractor.—A lien may be acquired for materials furnished for a building to either a contractor or subcontractor, under section 7255, R. S. 1894, placing them in the same category, so far as the right to acquire a lien is concerned.</p> <p>Same.—For Materials Furnished.—Destruction of Building Before Notice.—The lien on land for materials furnished for use in a building thereon is not lost by the destruction of the building by fire before notice of intention to'hold the lien is filed.</p> <p>Same.—Notice, Sufficiency Of.—Misdescription.—A notice of intention to hold a lien for materials used in a building, which describes it as a part of a specified out-lot in “ Haney’s ” addition of out-lots, to a specified town, is sufficient, although the addition is “Henley’s,” where the location of the building on the specified out-lot in Henley’s addition is well known, and the owner knew what property was intended to be described in the notice, under section 7257, R. S. 1894, declaring that any description of the lot from which the land can be identified, will be sufficient.</p> <p>Pleading.—Complaint to Foreclose a Mechanic’s Lien.—Sufficiency.— A complaint alleging that both contractors and subcontractors purchased of plaintiffs materials for use in the construction of thebuilding on which a lien is sought to be foreclosed, which materials were “used” in its construction, sufficiently alleges that the materials were purchased for use in the building—especially where a bill of particulars and the notice of intention to file the lien, which are made a part of the complaint, show that the materials were furnished to the contractors and subcontractors to be used in the building.</p>

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

<p>County.—Court House.—Lease of Booms for Private Purposes.—A lease of rooms in a court house to be used for private purposes can ! not be lawfully made by county commissioners in the absence of statutory authority.</p>

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

<p>Injunction.—Nuisance.—Erection of Building.—The erection of a building which will not of itself constitute a nuisance, will not be enjoined because the use to which it is designed to be put would constitute such a nuisance.</p>

<p>From tbe Putnam Circuit Court.</p>

<p>Contract.— Capacity to Contract. — Mental Weakness. — Mental weakness, which is not alone sufficient to destroy capacity to contract, will invalidate a conveyance, if accompanied by undue influenoe, duress, inadequacy of consideration, misrepresentations, concealment, taking advantage of ignorance, inexperience, or want of advice.</p> <p>Evidence.—Burden of Proof .—Oontraet.—Very slight circumstances-will cast the burden of sustaining a contract upon the party asserting its validity, where the other party was old, feeble, illiterate, and weak-minded from sickness or other cause.</p> <p>Appellate Procedure.—Sufficiency of Evidence.— The Supreme Court will not disturb a finding by the court below on the weight of the evidence, where there is evidence sustaining it.</p> <p>Pleading.—Complaint to Set Aside a Deed and Assignment.—Undue Influence.—Restoration of Consideration.—A complaint in an action to set aside a deed and an assignment, upon the ground of undue influence and mental weakness, need not allege a restoration, or offer to restore the consideration, where the only consideration was a promise to support plaintiff for life contained in the deed, as a judgment setting aside the deed would also set aside the promise; and, besides, a provision in a deed for the support of the grantor during life cannot be specifically enforced.</p>

<p>License.—Use of Streets.—Market Wagon.—Oity.—Nonresident.— A nonresident of a oity may be lawfully compelled to pay a'license for driving a market wagon upon its streets, when no discrimination is made against him on account of his nonresidence.</p> <p>Same.—Toll for Use of Streets.—Vehicle.—A toll for the use of the streets, instead of a tax on personal property, is imposed by a license fee charged on vehicles.</p> <p>Same.—For Use of Streets.—Vehicle.—Reasonableness of Toll.—The fact that some revenue arises to a city from fees collected from licenses for the use of streets by vehicles, and that it is applied to the repair of the streets, does not render a license of §3.00 per year for a one-horse market wagon unreasonable.</p> <p>Same.—Toll for Use of Street.—Vehicle.—Police Power.—The police power, and not the taxing power, is exercised in licensing the use of vehicles on streets.</p> <p>Same.—Power of Oity to Exact License for Use of Street.—Vehicle. —The power to license, and to exact a reasonable license fee, for the use of streets and alleys by vehicles, is within the power of a municipality, under a statute giving power to regulate such use.</p>

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

<p>New Trial.—As of Right.—Writ of Assistance.—A motion or petition for a writ of assistance for the possession of land, is not such an action as entitles a party to a new trial as matter of right, under section 1076, R. S. 1894.</p>

<p>_ Evidence.—Parol.—Deed.—Reservation of Life Estate as Security for Contract of Maintenance.—A reservation of a life estate in a deed may be shown by parol evidence to have been intended merely as security for the performance of the agreement by the grantee to support the grantors during their lives.</p>

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

<p>Deed.—Description.—Mistake.—A mistake in a deed in locating the land conveyed in the “northwest quarter” instead of the “northeast quarter” of a given section, will not prevent the title from passing, where there is an additional description by metes and bounds, which furnishes the means of identifying the land conveyed.</p>

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

<p>Appellate Procedure.—Instructions.—Reversal of Judgment.—A judgment may be reversed for instructions which would not have been correct under any evidence, although the evidence is not in the record.</p> <p>Bill op Exceptions.—Filing.—Record.—A purported bill of exceptions cannot be considered on appeal, where the record does not show that it was ever filed in the court below.</p> <p>Instructions to Jury.—Erroneous.—When Not Cured.—An erroneous instruction is not cured by another instruction correctly stating the law, where the first instruction is not withdrawn from the jury.</p> <p>Evidence.—Burden of Proof.—Impeachment of Marriage.— The burden is upon a party seeking to impeach a marriage by proof of a former marriage of one of the parties to prove that the former marriage has not been legally dissolved.</p> <p>Will.—From Husband to Wife.—Reputed Wife a Married Woman at Time of Second Marriage.-—If a husband make provision in his will for his reputed wife, the fact that his reputed wife, at the time of her marriage to him, had a husband living from whom she had not been divorced will not avoid the will as to such wife.</p> <p>Pleading.—Complaint.—Action to Set Aside a Will.—A complaint, in an action to set aside a will, averring generally “that said will was unduly executed,” is sufficient on demurrer, notwithstanding the fact that it is followed by facts which are insufficient to avoid the will.</p>

<p>Appellate Procedure.—Evidence.—Objection.—An objection to an answer responsive to the question asked by the party objecting, is not available on appeal.</p> <p>Evidence.—Attorney and Client.—That a witness has been attorney for a party does not disqualify him to testify as to statements or declarations of the latter,, which are not confidential communications made in the course of professional business, under section 505, R. S. 1894.</p> <p>Same.—Declarations of Agent Adverse to Principal.—The declarations of an agent against the. interest of his principal, are not inadmissible against the latter because the agent is joined as an adverse party in the action.</p> <p>Same.—Motion to Strike Out.—When Properly Overruled.—A motion to strike out all of a witness’ testimony is properly overruled, if some part of it is admissible.</p>

<p>From the Decatur Ourcuit Court.</p>

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

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

<p>Special Verdict.—Railroad.—Rule as to Duty of Brakemen.— . Conclusion of Law.—In an action against a railroad company, a special finding as to the existence of a rule of the company relating to the duties of brakemen, is the statement of a fact upon which the court could determine, as a question of law, whether authority had been given the brakeman to eject a trespasser on the train, and such determination would not infringe any prerogative of the jury.</p> <p>Same.—Railroad.-—Authority of Brakeman.—In such case, if the finding had been that the brakeman had or had not authority to eject the trespasser, such finding would have stated the limit of the issue, both as a question of fact and one of law, and would be objectionable.</p> <p>Evidence.—Burden of Proof.—Railroad.—Trespasser.—Authority of Brakeman.—In an action by a trespasser on a freight train, injured by a brakeman, for damages, the burden is upon the plaintiff to show that the brakeman who inflicted the injury possessed the authority to do the act which resulted in the injury.</p> <p>Railroad.— Rule.—-Brakeman.— Authority to Eject Trespasser.— Under the following rule of a railway company: “They [brakemen] are under the immediate orders of the conductor or yardmaster with whom they serve, and must give him every assistance in the performance of his duty. They are to ask and receive from him all instructions necessary as to their duties. In general, they are the servants and guardians of the train; to do all the work required during its trip, and protect it from danger,”—freight brakemen are not authorized to eject trespassers generally.</p> <p>Same.—Authority of Brakemen.—The fact that a conductor and two brakemen were in charge of and managing a train does not carry the inference that the brakemen had the authority co-equal with the conductor, or that they had any authority other than that implied from their position as brakemen.</p> <p>New Trial.—A Cause, if Tried Anew, Must Be on Same Theory. —A case cannot be tried upon one theory, and, when defeated, obtain a new trial upon a different theory.</p>

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

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

<p>From tlie Marshall Circuit Court.</p>

<p>Injunction.—Against Enforcement of Judgment.—Collateral Attack.—A proceeding to enjoin the enforcement of a judgment by execution constitutes a collateral attack thereon, and cannot be maintained on account of errors for irregularities merely.</p> <p>(See note at end of opinion.)</p> <p>Judgment.—Collateral Attack.—Drainage.—That a drainage ditch has not heen constructed according to plans and specifications, does not render a judgment foreclosing a ditch lien vulnerable to collateral attack.</p>

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

<p>Taxes.—County Board of Review.—Time of Legal Expiration of Session.—How Computed.—The rule for the computation of time fixed by section 1304, R. S. 1894, excluding the first and including the last day, unless the last day be Sunday, when it shall be excluded, governs in determining the legal expiration of the session of the county board of review, which, by section 8533, is limited to eighteen days, and, therefore, intervening Sundays must be included.</p> <p>Same.—County Board of Review.—Void Order.—An order of the county board of review of taxation, made after its legal session, as fixed by section 8533, R. S. 1894, had ended, is void.</p> <p>Same.—Payment or Tender of Payment of Taxes Due.—Injunction.— The payment or tender of payment of taxes admitted to be due, upon the basis of the original valuation of the capital stock of a bank, is not a condition precedent to an action to annul an order by the .county board of review, under the statute, increasing the previous valuation, where the attack is directed against the increase as an entirety.</p>

<p>Evidence.—Damages.—Value of Horses.—Evidence as to the value of horses for the special purpose for whicli they were used . is admissible under an allegation of general damages, in an action for the wrongful killing thereof, as the evidence is of general and not special damages.</p> <p>Same.—Value of Horses for Special Purpose.—Damages.—Harmless Error.—If the admission of evidence as to the value of the particular horses killed, with reference to their use for a particular kind of work, in an action for the wrongful killing thereof, is erroneous, the error is harmless, where the amount of the verdict is but a fair average of the general market-value of horses, as testified to, and is less than any valuation for the horses, with reference to the special use.</p> <p>Damages.—Measure Of.—Wrongful Killing of Horses.—Evidence.— The measure of damages for the wrongful killing of horses fitted for a special kind of work, is the market-value in the locality of horses fitted for such work, if there is such a market-value, and not the general market-value of horses.</p> <p>Appellate Procedure.—Notice.—Reserved Questions of Law.—No question as to the sufficiency of the notice given to the trial court of appellant’s intention to reserve and present specified questions, under section 642, R. S. 1894, arises, where such court has, pursuant to the notice, fully and correctly prepared a special bill of exceptions so as to present briefly and distinctly each of such questions.</p> <p>Constitutional Law.—Killing of Injured, Abandoned or Diseased Animals.—Notice.—Humane Society.—Section 2202, R. S. 1894, authorizing any agent of any society for the prevention of cruelty to animals to kill any animal found neglected or abandoned, and which is injured or diseased past recovery, or by age has become useless, is unconstitutional as depriving the owner of property without due process of law, so far as it permits such killing without notice to him. (See note at end of opinion.)</p>

<p>Appeal.—Will Not IAe from Judgment Rendered in Vacation.— An appeal will not lie to the Supreme Court from a purported judgment rendered without statutory authority in vacation, as such purported judgment is in legal contemplation no judgment at all, but at most a special finding.</p>

<p>From tlie Boone Circuit Court.</p>

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

<p>Pleading.—Answer.—Written Instrument.—Exhibit.—The original written instrument upon which an answer is based, or a copy thereof, must be filed and made part of the answer as an exhibit, under section 365, R. S. 1894, providing that when any pleading is founded on any written instrument the original or a copy must be filed therewith.</p> <p>Appellate Procedure.—Answer.—Exhibit.—Demurrer.—The overruling of a demurrer to an answer, because of the failure to file with it the original written agreement upon whiph it is based, or a copy thereof, as required by section 365, R. S. 1894, is reversible error, where the record does not show that such agreement was properly read in evidence, and was of the force and character ascribed to it in the answer, or otherwise show that the merits of the cause have been fairly determined.</p>

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

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

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

<p>Appellate Procedure.—Dismissal.—Parties Appellant.—Vacation Appeal.—A vacation appeal, by one of two joint judgment defendants, will be dismissed, where the other defendant is made an pellee instead of an appellant, under section 647,' R. S. 1894, quiri'ng all parties against whom judgment is rendered to be made appellants on such an appeal. .</p>

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

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

<p>Natural Gas.—Damages.—Explosion.—Leah in Main.—The destruction of a building by the explosion of natural gas which escaped from a leak in a high-pressure main 80 or 90 feet distant across a street, and reached the building by penetrating the soil under its frozen surface, renders the gas company liable, where it had made no effort to prevent the leak, although this had continued for several years, and notice of thp fact had been given to line-walkers. (See note at end of opinion.)</p> <p>Same.—Notice.—Leah in Main.—Ample notice of a leak in a high-pressure main of natural gas is given to the owner of the main by a continuance of the leak for several years, and also direct information given to line-walkers.</p>

<p>Appellate Procedure.—Waiver. —Sufficiency of Indictment.— An assignment of error, that the court erred in overruling the motion to quash the indictment, is waived by failing to point out any objection to the indictment.</p> <p>Same.—Weight of Evidence.—Criminal Laiv.—A conviction sustained by the evidence, if true, cannot be reversed on appeal, on the ground that the prosecuting witness was unworthy of belief because of his immoral character.</p> <p>Evidence.—Admissions of Defendant in Criminal Case.—Admissions of defendants in a criminal case, which are relevant to the issue, may be given in evidence, whether or not he testifies as a witness.</p> <p>Trial.—Evidence.—Criminal Law.—Admitting Original Evidence After Defendant has Closed.—Discretion.—The trial court may, in its discretion, permit original testimony to be given for the State in a criminal case after defendant has closed his evidence.</p> <p>New Trial.—Newly Discovered Evidence.—Counter Affidavit.—A new trial for newly discovered evidence of a witness, who testified on the former trial, is properly refused, where a counter-affidavit of such witness is filed in which she states that her affidavit filed on the motion for a new trial was false, and that the testimony given by her on the trial was true.</p> <p>Same. — Newly Discovered Evidence. — Counter Affidavit.— The trial court may allow the State, on a motion for a new trial for newly discovered evidence in a criminal action, to file a counter-affidavit at any time before the ruling on such motion.</p>

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

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

<p>Bill of Exceptions.—When Not a Part of Record.—Piling.—Certificate.—Material included in a manuscript, although bearing the form of a bill of exceptions, cannot be considered on appeal, where it was not filed in the clerk’s office, and is not certified to be a copy of the original bill.</p> <p>Appellate Procedure.— Agreed Case.— Bill of Exceptions.—A purported agreement between the parties as to the facts contained in the transcript, standing immediately after the entry of the decree, without a preceding caption, or other indication showing an intention that it should be embodied in a bill of exceptions, followed by a certificate that the foregoing is a full, true, and complete transcript of all papers and entries in the cause as the same appear of record, cannot be considered on appeal, as it is not a bill of exceptions or an agreed case, as authorized by section 562, R. S. 1894.</p>

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

<p>New Trial.—New Matter.— Complaint.— Diligence.— Payment.— Reasonable diligence to discover the new matter relating to the payment of a judgment, upon which an action to review a judgment in a former trial, enforcing the judgment mentioned,is based, is not sufficiently averred by allegations of the complaint that the plaintiffs examined the records of judgments, and inquired into the facts from every source where information was likely to be obtained, in the absence of any allegations as to inquiries of the persons alleged to have made the payments, under section 629, It. S. 1894, providing that the complaint must show that the new matter could not have been discovered, before judgment, by reasonable diligence.</p>

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

<p>Trial.—Excluding Juror.—Criminal Law.—It is not too late to exclude a juror in a criminal case after the jury has been sworn.</p> <p>Appellate Procedure.—Insanity of Juror.—When Not Ground for Reversal.-—An order refusing a new trial on the ground of insanity of a juror will not be disturbed on appeal, where the appellant’s counsel had notice that some question existed of the juror’s mental qualification, although not of the inquisition eight years before, and his confinement in a hospital, and the record does not show the full examination of the juror.</p>

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

<p>Appeal from the Montgomery Circuit Court.</p>

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

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

<p>Appellate Procedure.—Waiver of Error.—Brief.—An alleged error is waived by failure to refer thereto in appellant’s brief.</p> <p>Same.—Sufficiency of Evidence.—Criminal Law.—A conviction amply supported by the evidence will not be disturbed on appeal, no matter how strong the opposing evidence may be.</p> <p>Evidence. — Incompetent.— Objection After Admission.—Appellate Procedure.—An objection to incompetent evidence after its admission, without a motion to strike out the particular matter, will not be considered on appeal.</p> <p>Same.—Objection, When too General.—An objection to the admission of evidence must specifically designate the particular evidence objected to.</p> <p>Criminal Law.—Rape.—Prosecution byinformation.— One maybe</p> <p>. prosecuted for rape by affidavit and information, although a §;rand jury had been in session since his arrest and had been discharged without indicting him, under R. S. 1894, section 1748, subd. 1, authorizing a prosecution in that manner for all public offenses, except treason and murder, where the .court is in session and the grand jury is not in session, or has been discharged.</p> <p>Same.—Prosecution by Information.—Plea in Abatement.—Case Overruled.—A plea in abatement to a criminal charge prosecuted by affidavit and information, alleging that there was a grand jury regularly drawn, and that the grand jury had not been discharged for the term when the affidavit and information were filed, is insufficient under R. S. 1894, section 1748, authorizing a prosecution in that manner, “where the grand jury is not in session, or has been discharged.” (State v. Boswell, 104 Ind. 541, overruled.)</p> <p>Same.—Information.—Plea in Abatement.—A plea in abatement of a criminal charge by affidavit and information must negative all the provisions of the statute authorizing a prosecution of the offense in that manner.</p>

<p>Vendor’s Lien.—Reservation in Note.—Where A sold land to B, taking a note for §3,700 in part payment, and subsequently C sold land to A and agreed to take B’s note in part payment, if it were a purchase-money note, and B thereupon executed a note to C for the amount of the unpaid purchase-price of the sale to A, and another note to A for the balance of the §3,700 due A on the purchase by B, the note by B to C carried a vendor’s lien on the land sold to B by A.</p>

<p>Harmless Error.— Striking Out Interrogatory Filed with Pleading.—Striking out an interrogatory is harmless, if error, where it was not required to enable the party to adapt his pleadings to the facts of the case, and all the information that could have been obtained thereby is fully supplied by the evidence adduced upon the trial.</p> <p>Interrogatories.—Filed with Pleading.—When Properly Stricken Out.—Interrogatories in respect to some matter of opinion, the legal effect of some written instrument, or asking for a conclusion of law or an opinion of hypothetical questions, or requiring the giving of copies of documents, are properly stricken out.</p> <p>Insurance.—Life.—Surrender of Policy Without Demanding Paid-tip Policy.—Forfeiture.—No recovery can be had on an insurance policy providing for the issuance of a paid-up policy after payment of three or more premiums, if the insured surrenders his policy before its expiration by nonpayment of a premium, where the insured allowed his policy to lapse by nonpayment of a premium without demanding a paid-up policy.</p> <p>Verdict.—Court Directing Verdict.—Failure of Evidence.—Trial.— A verdict is properly directed for defendant where the evidence introduced utterly fails to establish the cause of action stated in the complaint.</p>

<p>Appellate Procedure.—Special Finding Silent as to Material Fact.—Presumption.—A material fact will be presumed, on appeal, to be against tbe party wbo was obliged to prove it, where the special finding is silent in regard thereto.</p> <p>Evidence.—Burden of Proof.—Decedent’s Estate.—Widow’s Bights. —Election.—One seeking to subject all of a testator’s land to payment of his debts on the ground that tbe widow did not elect to take under tbe law within a year as required by section 3666, R. S. 1894, has the burden of proving such fact.</p> <p>Will.—Election by Widow.—The failure of a widow to affirmatively elect within a year after probate of the will to accept the provision made by law, as required by section 2666, R. S. 1894, will be deemed an election to accept the provisions made by the will in place of the provisions by law.</p>

<p>Damages.—Death by Wrongful Act.—Contributory Negligence.— Burden of Proof .—Court Directing Verdict.—A verdict is properly directed for defendant in an action for negligently causing the death of plaintiff’s intestate, where there is no evidence that the intestate was free from contributory negligence, although there is no evidence of negligence on his part contributing to the accident.</p>

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

<p>Witness.—Impeachment by Statements Made Out of Court.—The right to impeach a witness by statements made out of court lies only where such statements are contrary to the testimony of the witness in court relative to material matter in issue.</p> <p>Same.—Impeachment.—Negative Answer.—Cross-Examination.—If a party recall a witness ostensibly for the purpose of further cross-examining him, and puts a question not proper in cross-examination, hut eliciting evidence in chief, for the purpose of proving such fact she was such party’s witness, and upon giving a negative answer such party has no right to impeach the witness by statements made out of court, as the testimony of the witness, though not beneficial, is not prejudicial.</p> <p>Same.—Testamentary Capacity.—Cross-Examination.—Where a witness has testified to the testator’s mental unsoundness and to testator’s specific acts towards him, the witness may be cross-examined in explanation of such acts and treatment by the testator.</p> <p>Instructions to Jury.—Will.—Undue Influence.—Instruction not Based on Evidence Given —It is error for the court to instruct the jury as to undue influence in an action contesting the validity of a will, where there was no evidence as to undue influence, and where it does not appear from the record that the instruction was harmless and not misleading.</p> <p>Same.—Testamentary Capacity.—Unsoundness of Mind.—Instructions which inform the jury that if the testator was a person of unsound mind, even though such unsoundness was so slight that it did not impair his capacity to make an intelligent testamentary disposition of his property, the will was void, are erroneous and harmful.</p> <p>Same.—Unsoundness of Mind.— Testamentary Capacity.—An instruction as to unsoundness of mind, in an action testing the valid - ity of a will, which charges that if the evidence shows that the testator did not possess mind enough to know the extent and value of his property, the persons who were the natural objects of his bounty and their deserts, and that he had not sufficient memory to retain all these facts long enough to have his will prepared and executed, then he was of unsound mind and the jury should find for plaintiff, is insufficient in not fixing the time of such mental unsoundness at the time of executing the will.</p> <p>Same.—Sanity.—Presumption.—Will.—In an action testing the validity of a will on the ground of mental unsoundness, an instruction offered to the effect that “every person is presumed to be of sound mind until the contrary is shown,” is correct and should have been given; and an instruction “that the burden is on the plaintiffs to show by a fair preponderance, unsoundness of mind,” does not cure the error, for the instruction as to burden of proof does not raise a presumption as to sanity in favor of the testator.</p> <p>Same.—When Misleading.—Expert Testimony.—Hypothetical Question.—An instruction that the value of expert testimony depends on the degree of harmony between the facts stated in the hypothetical questions and those established by the evidence, and upon the skill and capacity of the experts, is misleading where it does not refer to their conduct and actions on the stand, the materiality of the facts assumed, their partiality or impartiality, and other relevant circumstances.</p> <p>Wills.—“Unsoundness of Mind,” Meaning Of.—Statute Construed.— Instructions.—The expression “of unsound mind,” as used in the Indiana statute of wills, means such a degree of unsoundness of mind as incapacitates one from making a will according to the standard fixed by the adjudicated cases for testamentary capacity. (For instructions as to “unsoundness of mind,” see opinion.)</p> <p>Evidence.—Burden of Proof .—Will, Testamentary Capacity.—Plaintiff in an action to set aside a will on the ground of the testamentary incapacity of the testator has the burden of proving such incapacity.</p> <p>Appellate Procedure.—Rehearing.—Á question cannot first be presented on a petition for rehearing.'</p>

<p>Appellate Procedure.—Sufficiency of Evidence.—The refusal of a new trial, asked on the ground of the insufficiency of the evidence, in a suit by a town to recover as part of a public street land fenced in by defendant, will not be disturbed on appeal where there was evidence that the strip in controversy had never been dedicated by the owner to the public.</p>

<p>Statute Construed.— Change of Construction.— Effect on Vested Rights.—Courts.—The interpretation placed by the supreme court at the time of an administrator’s sale of land for payment of debts, upon sections 2483, 2487, R. S. 1881, that a childless widow whose husband left children by a former wife took only a life estate in one-third of his lands, which interpretation was accepted by the court and all the parties to the proceeding, will be adhered to in determining the validity of such sale in a subsequent action to partition the land, notwithstanding a subsequent interpretation that it gives an estate in fee simple to such widow.</p> <p>Estoppel.—Heirs Joining in Administrator's Sale of Land.—LAfe Estate of Widow.—In a sale of land by an administrator, if the heirs, being the owners of one-third of the land subject to the life estate of the widow, join in the proceedings for the sale and accept the price paid for it by the purchaser, they are thereafter estopped to deny the validity of the sale of the one-third subject to the life estate.</p>

<p>Partition Fence.—Statute Construed.— The provision of the act of June 4, 1852, section 16, as amended, that if either of two adjoining owners fail to maintain his portion of the partition fence, as provided for “in the preceding section,” it can be repaired by the township and the cost made a lien on his land, became ineffective when such preceding section was made void by a second amendment in violation of the constitution.</p> <p>Statute.—Amendment of Section Previously Amended.—Void.—An act purporting to amend a section of an act which has previously been amended is unconstitutional and void.</p>

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

<p>Taxes.—State Board.—Express Companies.—The State board of tax commissioners is not confined for its information as to the value of the property of an express company, to the statements furnished by them as provided by statute, but may resort to such other information as they have or are able to obtain.</p> <p>Same.—State Board.—Unit System.—Routes of Companies.—In assessing express companies the statute authorizes the State board of tax commissioners to use the unit system of valuation, and in so doing the length of the routes and the proportion of such length within the State may be taken into consideration.</p> <p>Same.—Unit System of Valuation.—The object of the unit system of assessment is to prevent destruction of values by disruption and disintegration, and therefore the whole property used in the business is first valued, which necessarily includes all the local properties, and then so much of the whole value thus ascertained is apportioned to this State as its amount and value bears to the amount and value of the whole property.</p> <p>Same.—Express Companies.—Right to Assess Routes.—The length of a route of an express company has a bearing on the earning capacity of the property employed in the business, and the earning capacity determines the value of such property. Hence an assessment on the route of the company within the State under the unit system was proper and right.</p>

<p>Evidence.—Admission.—Decree and Papers in Former Suit—Trespass.—The papers and decreein an injunction proceeding, to restrain the entry of a tracF"of land for the extension of a given street, in which plaintiff in his reply alleges that it was agreed upon between himself and the town treasurer, that he would accept the amount of the award, and open such street when the right of way over adjoining land was procured, and that such condition had not been complied with, are admissible against the plaintiff therein as an admission of the receipt of the money and the condition on which he held it, in a subsequent action by him for trespass for destroying his fences on such land after the right of way over the adjoining land had been procured.</p> <p>Municipal Corporation.—Nunc Pro Tunc Entry.—Report of Assessment of Benefits and Damages.—A town may order the entry nunc pro tuno of the report of assessors of benefits and damages caused the property of a designated person by the opening of a street, which has been inadvertently omitted from the records.</p> <p>Estoppel.—Reception and Retention of Award in Condemnation Proceedings.—The reception and retention of an award in condemnation proceedings estop the landholder to deny the validity of the proceedings.</p> <p>Harmless Error.—Evidence.—Admission of evidence upon which the rights of the parties do not in any manner depend, if erroneous, is not available error.</p>

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

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

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

<p>Damages.—Breach of Contract.—Sale of State Bonds.—Resale.— Damages for tlie breach of a contract for the sale of bonds do not include the profit lost by inability, by reason of the breach, to fulfill a contract for the resale of the bonds at an advance, in the absence of any notice to or knowledge by the party in default of the contemplated resale, but the measure of damages is the increase in the market value of the bonds at the time of such breach.</p> <p>Appellate Procedure.—Nominal Damages.—Failure to Assess.— Reversal.—The failure to assess nominal damages for breach of a contract, is not an error that affects the substantial rights of appellants, entitling them to a reversal.</p>

<p>Contract.—Implied Assumpsit.—Money Paid County Auditor on Unlawful Claims.—An action will lie in favor of a county against a county auditor to recover money ordered paid to and received by him upon an unlawful claim.</p> <p>County Commissioners.—Alloioing Unlawful Claim.—County Not Liable. —The board of county commissioners cannot bind the county by allowing and ordering to be paid an unlawful claim.</p> <p>Same.—Allowance an Administrative Act.—Res Adjudicata.—The allowance of a claim against a county by the board oí county commissioners, is an act by it in its administrative capacity, and is not conclusive as a judicial determination, under section 7830, R. S. 1891, making it a duty of such board to “allow all amounts chargeable " against the county.</p> <p>Evidence.—Burden of Proof.—County.—Recovery of Illegal Claim Ordered Paid.—The burden is on the county, in an action to recover a claim ordered paid by the hoard of county commissioners, to show that the claim was not a legal charge against the county.</p> <p>Payment.—County.—Illegal Claim.—Payment, under an allowance of claims made by the board of county commissioners in defiance of a positive statute,-is not a payment by the county, within the rule that a payment under mistake of law cannot be recovered.</p> <p>Maxim.—Judge.—No one can be a judge in his own case.</p>

<p>Fraud.—Mortgage in Fraud of Creditors.—Not Enforceable.—One who takes a mortgage on the property of another, as part of a scheme to aid him in defrauding his creditors, acquires no rights thereunder, even though a consideration was paid therefor.</p>

<p>Appellate Peocediebe.—Demurrer.—Record.—An Appellate Court will not review a ruling of the trial court oh a demurrer, unless both, the particular pleading demurred to and the demurrer are contained in the record on appeal.</p> <p>Same.—Duty of Appellant to Establish Error.—To entitle a party to a reversal of a judgment, he must point out and establish by the record that the trial court committed reversible error, for all reasonable presumptions are indulged in favor of the rulings of the trial court.</p> <p>Amended Pleading.—Record,.—If a complaint be amended, the amended complaint supersedes the original, and the original will form no part of the record, although copied into it.</p>

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

<p>Appellate Procedure.—Conflicting Evidence.—Finding.—A finding of fact by the court on conflicting evidence will not be disturbed on appeal.</p> <p>Same.—Presumption.—Foreclosure of Mortgage.—Fraud.—Want of Consideration for Notes.—It will be presumed on appeal, in order to support a judgment foreclosing a mortgage, as to three notes which it was given to secure, that a general finding by the court against the third note was upon the theory that there was no consideration therefor, instead of that the giving of the mortgage securing it was fraudulent.</p> <p>Fraud.—A Question of Fact.—Fraud will not be presumed, but must be proved by the party alleging it.</p> <p>Mortgage.—When Not Void.— No Consideration for Notes Secured by Mortgage.—A mortgage is not rendered void perse simply because one of several notes, which it is given to secure, is not supported by a consideration, where there was no fraudulent intent in its execution.</p>

<p>Mechanic’s Lien.—Upon Buildings and Land Gonstituting a Single Plant.—A single lien may be had upon all the buildings and land constituting a single plant, for materials used in an improvement relating to all the buildings without specifying the particular buildings upon which the separate portions of the materials were furnished.</p> <p>Same.—Time of Filing IAen.—Material Furnished to Several Buildings Constituting a Single Plant.—Notice of a mechanic’s lien is in time, if filed within sixty days after furnishing the last of several lots of material ordered and furnished at different times, where they are all supplied under one contract and used in the repair of several buildings constituting one manufacturing plant.</p> <p>Same.—Foreclosure on Property in Hands of a Receiver.—The permission of a court which has appointed a receiver over property to make him a party defendant to an action in another court to foreclose a mechanic’s lien which existed on the property at the time of his appointment is not a relinquishment of control of the property which authorizes a judgment by such other court directing a public sale of the property by the sheriff with clear title to the purchaser.</p>

<p>Descent.—Adopted Child.—An adopted child of a deceasedjhusband, but not of the wife, is not entitled to the protection of section 3641, R. S. 1894, providing that if a widow marry a second time, holding real estate in virtue of a previous marriage, and there be a “child * * * alive by such marriage,” the widow cannot, with or without her husband’s consent, alienate such land, and upon her death during the marriage it shall go to “her children ” by the marriage in virtue of which it came to her, although section 837 provides that an adopted child shall receive all the rights and interest in the estate of the adopting father or mother which a natural heir would be entitled to.</p>

<p>Appeal.—When Premature.—An appeal from the ruling of the trial court sustaining a demurrer, taken before entry of final judgment thereon, is premature.</p>

<p>Pleading.—Cross-complaint.—Judgment.—Mortgage.—A cross-complaint in an action to foreclose a mortgage, which sets up a judgment procured against the mortgagor before the execution of the mortgage, is fatally defective on demurrer if it fails to state that such judgment is a lien on the premises sought to be foreclosed; and it is not helped in this respect by anything contained in the complaint tending to show that fact, since a cross-complaint must be complete in itself without aid from the other pleadings in the case.</p>

<p>Harmless Error.—Evidence.—Breach of Marriage Contract—The admission in an action for breach of promise of marriage, of a decree divorcing plaintiff, if error, is harmless, where plaintiff’s competency to enter into the contract in suit is not denied.</p> <p>Evidence.—Disputed Signature.—It is not error to allow counsel on the cross-examination of a -witness who has testified to the genuineness of a disputed signature, to put into the hands of the witness for comparison signatures of the same person to papers properly in the record, as it is not necessary that such papers should first be put in evidence.</p> <p>Same.—Handwriting.—Opinion.—The mere fact that a witness as to the genuineness of handwriting has only seen the person write since the beginning of the trial is not enough to render his evidence incompetent.</p> <p>Same.—Genuineness of Disputed Signature.— Comparisons.—Appellate Procedure.—An objection to the receipt of expert testimony as to the genuineness of a disputed, signature, founded on a comparison thereof with signatures of the same person to papers in the cause, on the ground that such signatures have been made since the alleged signature became a matter of controversy, does not suggest the objection that they may have been made in a disguised hand for the purpose of manufacturing evidence; and hence the question as to the admissibility of the testimony over such an objection is hot presented on appeal.</p> <p>Pleading.—Complaint.—Breach of Marriage Contract.—Presumption.—Evidence.—Plaintiff, in an action for breach of marriage contract, need not allege or prove defendant’s capacity to enter into such contract, for such capacity -will be presumed.</p>

<p>Municipal Coepoeation.—Ordinance.—Unreasonableness.—An ordinance cannot be successfully assailed in a judicial tribunal for unreasonableness when it has been adopted by express authority of the Legislature without conflict with any constitutional prohibition or fundamental principles.</p> <p>Same.—Ordinance.—Slaughterhouse.—An ordinance prohibiting the maintenance of any slaughterhouse within the city when authorized by statute cannot be defeated by the courts on the ground that it is unreasonable.</p> <p>Same.— Ordinance.— Slaughterhouse.—The necessity or expediency of prohibiting slaughterhouses in a city is implied from an ordinance making that prohibition, without any provision for investigation into the character or condition of the slaughterhouses.</p>

<p>Appeal.—By State.—Payment of Fine and Costs.—The payment by defendant to the clerk of the fine and costs imposed on him does not estop the State from taking an appeal as provided by section 1955, R. S. 1894, upon a question reserved by it.</p> <p>Same.—Criminal Law.—Bight of Appeal by State. —Acquittal.— An acquittal is a condition of the right of appeal upon a reserved question conferred upon the State by section 1955, R. S. 1894, as section 1915 provides that the prosecuting attorney may except to any opinion of the court and reserve a point of law for the decision of the supreme court, and, in case of reversal, take the reserved case to the Supreme Court, and section 1956 provides that the clerk below must certify the judgment of acquittal.</p> <p>Criminau, Law.—Verdict Assessing Less than Minimum Imprisonment.—That a verdict assesses less than the minimum of imprisonment authorized by statute, does not render it void, and the defendant waives the irregularity by failing to object at the proper time.</p> <p>Same.—Arrest of Judgment.—Mere defects or uncertainties in a criminal pleading, or the imperfect statement of an essential element of a public offense in an indictment therefor, will not sustain a motion in arrest of judgment.</p> <p>Judgment.—Arrest Of.—What Amounts to.— The sustaining of an objection by defendant to judgment upon the part of the verdict affixing imprisonment as a part of the punishment is an arrest of judgment within section 1955, E. 8. 1894, providing that the State may appeal to the supreme court upon an order of the court arresting the judgment, although the motion was not based upon any of the statutory causes for arrest of judgment.</p>

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

<p>Contract.— Deed.—Assumption of Liability.— Maximum Limit.— Railroad.— A stipulation in a deed of the property of a railroad company to another company, “ subject to a certain liability in no event to exceed §6,000, growing out of a specified suit,” constitutes an assumption only of §6,000 of the claim if the liability exceed that amount, and not of the full liability of the grantor company in such suit.</p> <p>Damages.—Measure Of.—Conversion of Corporate Stock.—The measure of damages for the conversion of corporate stock is the highest intermediate value between the time of conversion and a reasonable time after the owner has received notice of the conversion, to enable him to replace the stock,—especially where the conversion is not willful and fraudulent, and is without benefit to the party charged therewith.</p> <p>Same:—Conversion of Corporate Stock.—Knowledge Of.—Time for Valuation.—The knowledge of conversion of corporate stock for the purpose of fixing a time for its valuation in the assessment of damages, should be that of some one charged with the duty to act, and not interested by reason of participating in the original wrong.</p> <p>Same.—Conversion.-—Dividends Earned on Stock before Conversion. —Dividends earned upon corporate stock before the date of the technical conversion should, with interest upon them, constitute an element of the damages for the conversion, but those following both the actual and technical conversion cannot be allowed.</p> <p>Same.—Measure Of.—Stock of Corporation.—Conversion.—Where stock of a corporation has been converted, the measure of damages is the highest intermediate value of the stock between the time of conversion, and reasonable time after the owner has received notice of the conversion.</p> <p>Same.—Corporate Stock.—Conversion Of.—Decedent's Estate.—Time for Valuation.—If corporate stock belonging to an estate has been converted, the knowledge of such conversion, for the purpose of fixing a time for the valuation of such stock, should be that of some one who is charged with a duty to act and who has not participated in the original wrong.</p> <p>Conversion.—Corporate Stock.— Time for Valuation.— Notice.— Administrator de Bonis Non.—Where an administrator de bonis non, in an action against the administratrix and a corporation for the conversion of stock owned by the estate, the administratrix having been removed November 21, 1881, made demand for the stock December 21,1881, and brought suit January 5, 1882, December 2, 1881, was a reasonable time within which to charge plaintiff with knowledge of the conversion for the purpose of fixing a time for the valuation of the stock converted.</p> <p>Same.—Recovery.—Administrator de Bonis Non.—In such case the interest of the administratrix, if any, in the stock converted, is not recoverable by the administrator de bonis non.</p> <p>Same.—Measure of*Damages.—Dividends.—Interest.—Neither dividends accruing nor, interest on dividends which have accrued after conversion of stock, can be allowed as elements of damage.</p> <p>Pleading. —Complaint.—Theory.—To Charge Old Railroad Company with Stock and Extend! Charge to New Company.—Fraudulent Conveyance.—That the theory of a complaint against a railroad company is not to set aside a conveyance of stock as fraudulent, but to charge the old company with such stock and dividends accrued thereon, and to extend such charge to the new company which has succeeded to the property rights of the old company, see opinion.</p>

<p>Railroad.—Negligence.—Using Cars Having'Uneven Couplings or Deadwoods.-—It is not negligence for a railroad company to use cars, whether belonging to it or another company, constructed with uneven couplings or deadwoods.</p> <p>Instructions to Jury.—Railroad.—Cars Having Uneven Couplings. —Negligence.—It is error to qualify a requested instruction that it is not negligence for a railroad company to use cars on its railroads and in its yards, the couplings or deadwoods of which az'e not of uniform or equal heights, by the condition that such deadwoods or couplings are in other respects safe appliances, especially where there is no allegation or issue that the couplings or deadwoods are otherwise unsafe.</p> <p>Appellate Procedure.—Instructions.—Refusal to Give.—The several refusals to give instructions asked for as an entirety may be presented to the Appellate Court by several exceptions, and an exception to the refusal to give them as an entirety is not essential.</p> <p>Same.—Record.—Evidence.—Filing.—Sow Shown.—It is not essential to the consideration of the evidence on appeal, that the showing of its filing with the clerk below shall be made by an order-book entry, but such filing may be shown by the certificate of the clerk or by the transcript.</p> <p>Same.—Evidence Not All in Record.—An objection that the record on appeal disclosed that not all of the evidence below is incorporated in the bill of exceptions is not supported by a citation of testimony identifying a map not incorporated in the bill, where it is not affirmatively shown that the map was introduced in evidence.</p> <p>Same.—Constitutional Question.—The Supreme Court will not pass upon the constitutional validity of an act of the General Assembly, when the case in which it is questioned may be correctly decided without passing upon that question.</p>

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

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