Volume 147 — Indiana Reports

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

<p>Trial. — Misconduct of Counsel. — Opening Statement. — Discretion of Court. — Whether counsel for the plaintiff in a cause may, in his opening statement to the jury, anticipate a defense and state what will be shown in rebuttal, or that if certain persons testify, evidence will be given to impeach them, rests largely in the discretion of the trial court, pp. 5, 6.</p> <p>Evidence. — Criminal Law. — Robbery.—Fact that Defendant Owned Property not Admissible to Show Want of Motive. — In a trial for robbery the fact that the defendant is the owner of real estate, of the value of 5800.00, is not admissible as evidence tending to show lack of motive, p. 7.</p> <p>Criminal Law. — Motive.—Proof of motive is not indispensable to a conviction of a crime, p. 7.</p> <p>Evidence. — Conversation Between Husband and Wife in Presence of Third Persons Admissible. — Conversations between husband and wife, in the presence of third persons, are not confidential communications within the meaning of the statute, p. 8.</p> <p>Instructions. — Criminal Law. — Failure to Instruct as to Lower Grades of Offense, Remedy. — A conviction will not be reversed because the trial court omitted to instruct the jury as to the lower grades of the offense charged, unless such instructions were offered and refused, and exceptions taken, pp. 9, 10.</p> <p>Same. — Reasonable Doubt. — An instruction, which, after defining reasonable doubt, tells the jury that if the proof is of such a nature as to exclude such doubt they should find the defendant guilty, does not invade the province of the jury. pp. 10, 11.</p> <p>Same. — Circumstantial Evidence, Weight of. — It is not erroneous to instruct the jury that circumstantial evidence is legal and competent in criminal cases, and if it is of such a character as to exclude every reasonable hypothesis other than appellant’s guilt, it is entitled to the same weight as direct evidence, pp. 11, 12.</p> <p>Appeal and Error. — Failure to Discuss Error Assigned. — Waiver.— In order to secure the consideration of an assigned error the same must be supported by argument. It is not enough to assert in general terms that the ruling is wrong, p. 12.</p> <p>Same. —Instruction.—When not all in Record. —Presumption. —Where all the instructions are not in the record the presumption is that the instructions given to the jury, but omitted from the record, contained the substance of all proper instructions refused, p. 12.</p> <p>Same. — Affidavits in Support of Motion for New Trial, How Made Part of Record. — Affidavits filed in support of a motion for anew trial can only be brought into the record by bill of exceptions, p. 12.</p> <p>Evidence. — Contradiction of Witness as to Collateral Matter. — Evidence is not admissible to contradict the statement of a witness as to a collateral matter, p. 13.</p>

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

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

<p>PLEADING. — Names of Parties. — The names of the parties to a suit being correctly stated in the title it is not necessary that they thereafter be referred to in the several paragraphs of complaint, except generally as plaintiffs and defendants, unless it should become necessary in an allegation to .particularize some plaintiff or defendant, p. 37.</p> <p>Railroads. — Injury at Grossing. — Structure on Right of Way.— Complaint. — In an action against a railroad company for damages for the killing of plaintiff’s intestate at a crossing, a complaint which alleges that defendant negligently piled lumber on its right of way which obstructed the view of travelers on the street, and that the persons managing defendant’s train at the time plaintiff’s intestate was killed, failed and neglected to sound the whistle or ring the bell in approaching the crossing, and were negligently running the train at an unlawful rate of speed, which complaint does not further aver that the view of decedent was obstructed by the lumber, or that the failure to give the signals, "or the unlawful speed of the train caused the injury, does not state a cause of action. pp. 38, 39.</p> <p>Same. — Injury, at Crossing. — Contributory Negligence. — In an action against a railroad company for the killing of plaintiff’s intestate, an allegation that the intestate while passing over said crossing, without carelessness or negligence on his part, and while using due care and caution, was struck by a train, does not negative contributory negligence, as he might have been negligent before going upon the crossing, p. 39.</p>

<p>Criminal Law. — Burglary.—Larceny.—Joinder of Counts. — Where there is a joinder of counts for larceny, and obtaining the same goods by burglary, it is not necessary that the count for burglary should describe the goods intended to be stolen as the same goods charged in the other count to have been stolen, p. 43.</p> <p>Same. — Misjoinder of Counts, When Not Ground for Reversal.— Where there has been a conviction upon one of two counts in an indictment, it is not ground for reversal that there was a misjoinder of counts, p. 43-</p> <p>Same. — Motion to Require State to Elect on What Count of an Indictment the Trial Shall Proceed. — The overruling of a motion by defendant, in a criminal case, to require the State to elect upon which of two counts in an indictment it 'will put defendant on trial is not reversible error, p. 43.</p> <p>Same. — Trial.—Bill of Rights. — The formal declaration of the sentence is not a part of the trial, within section 18 of the Bill of Rights securing to the accused a public trial, pp. 43, 44-</p> <p>Same. — Hearing a Motion for New Trial Not a Part of Trial. — Statute Construed. — Passing upon a motion for a new trial is not a part of the trial within the meaning of section 1855, Bums’ R. S. 1894, providing that no person prosecuted for an offense punishable by confinement in the State’s prison shall be tried unless personally present during the trial, pp. 43-45.</p> <p>•Same. — Special Judge. — Trial in Room Other Than Court Room.— Where, in case of an emergency, steps are taken in a criminal cause before a special judge in a room in the court house other than the court room, and no legal or constitutional rights of the accused are thereby infringed, the error, if any, is not available, p. 45.</p> <p>Same. — Rendering Judgment Before the Hearing of Motion for New Trial. — The rendering of judgment before motion for a new trial is filed and passed upon is not available error unless the accused was prejudiced thereby, p. 45-</p> <p>Evidence. — Weight Of. — The Supreme Court will not pass upon the conflicts of the evidence in a criminal trial, p. 45-</p> <p>Practice. — Misconduct of Counsel in Argument to Jury. — Duty of Court. — It is not the duty of the court to require the attorney for the State in the trial of a criminal cause to retract an improper statement made to the jury in his argument, although it is within the province of the court to withdraw such improper statement from the jury. pp. 45, 45.</p> <p>Criminal Law. — Practice.—Delay of Trial by Defense. — Misconduct ■ of Counsel in Argument, — Where the attorneys for defense in a criminal cause, by frivolous detail in objections and in questioning the witnesses, sought to and did occupy needless time, it is not error for the attorneys for the State to comment thereon in discussing the probable purpose of the defense to divert attention from the merits of the case. pp. 46, 47.</p> <p>Trial. — Use of Stenographer's Copy of Evidence by Counsel in Argument to Jury. — It is proper for counsel in his argument to the jury in referring to the evidence to do so from the stenographer’s copy. p. 47.</p> <p>Appeal and Error. — Practice.—Misconduct of Counsel. — Instructions. — The refusal of the court to instruct the jury in a criminal cause not to take into consideration anything said by counsel for the State in his argument to the jury concerning the trial of another person will not be considered on appeal, where the record does not purport to give the whole of any such statement, and that they were not properly made in answering some argument of defendant’s attorneys, p. 47. '</p> <p>Same. — Affidavits in Support of Motion for New Trial, How Made Part of Record. — Affidavits filed in support of a motion for a new trial can only be brought into the record by bill of exceptions, p. 48. Jury. — Members of Cannot Impeach Their Verdict. — It is not within the power of jurors by their statements, even when made upon oath, to impeach their verdict, pp. 48, 49.</p> <p>Appeal and Error. — Evidence.—Review.—The admission of evidence not objected to and objection properly saved can not be reviewed on appeal, p. 49.</p> <p>Criminal Law. — Evidence.—Conspiracy.—One charged with a felony as principal, may be convicted upon evidence of a conspiracy to commit the crime and an actual participation in the act constituting the crime, pp. 49, SO.</p>

<p>Practice. — Cross-Examination of Witness. — Larceny.—A person on trial for larceny who becomes a witness in his own behalf may be asked on cross-examination whether he had not committed other similar offenses, for the purpose of showing his character, and credibility as a witness, pp. 58, 5fy.</p> <p>Same. — Criminal Law. — Evidence.—Larceny.—Wherever the intent with which an alleged offense was committed is equivocal, and such intent becomes an issue at the trial, proof of other similar offenses within certain reasonable limits, is admissible as tending to throw light upon the intentions of the accused, in doing the act complained of; but where from the nature of the offense under investigation proof of its commission carries with it the evident implication of a criminal intent, evidence of the perpetration or attempted perpetration of other like offenses is not admissible for such purpose, p. 5Jj..</p> <p>Same. — Evidence.—Harmless Error. — It is harmless error on cross-examination of a person charged with larceny, who becomes a witness in his own behalf, to permit questions to be asked him as to his connections with other, crimes of a like nature where he denies having had any connection therewith, p. 55.</p> <p>Witness.-— Character. — Cross-Examination.— Larceny.— One who testifies to the good character for honesty and integrity of a person charged with the crime of larceny may be asked on cross-examination if he has ever heard of accused being implicated in crimes of a similar nature, p. 56.</p>

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

<p>Wills. — Construction of. — Testator Assuming to Bequeath Property Not His Own. — Election by Devisees. — A testator devised his real estate to his children, made certain bequests to other parties, and, assuming that a certain policy of insurance on his life, payable to his children, was his own property, provided that the proceeds of such policy should be paid to his executor to carry out the terms of the will. The children of testator accepted under the will and took possession of the real estate, but as beneficiaries claimed the proceeds of the insurance policy. Held, that the children having elected to take the benefits provided for them in the will abandoned their right to the policy pp. 64^69.</p> <p>Same. — Construction.—Parol Evidence.' — Insurance Policy. — Where a testator bequeaths the proceeds of an insurance policy, describing it only as “my life insurance policy,” parol evidence is admissible in an action to construe the will, for the purpose of identifying the policy, p. 68.</p> <p>Appeal. — Error Not Prejudicial. — Appellant cannot complain of an error of the trial court which reduced the amount for which judgment would otherwise have been rendered, p. 70.</p> <p>Same. — Election to Take Under Will. — Where at the time a testator made his will one of his children had died leaving as his only heir a son to whom testator bequeathed certain property, and where-said testator assumed by said will to dispose of the proceeds of a. certain insurance policy, payable at testator’s death to his children, the son of said deceased child is not put to his election to take under the will, or claim under the policy, as the interest of the deceased child in the policy went to his administrator, p. 70.</p>

<p>Appeal. — Rights in Controversy Abandoned by Appellant. — Dismissal. —Where it appears that before the appeal of a cause that the actual controversy between the parties had been terminated, by the acts of the appellant, the appeal will be dismissed.</p>

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

<p>Wills. — Construction.—Rule in Shelley’s Case. — Testator devised to his son E certain real estate “to have and to hold the same during the full term of his natural life, and after his death I devise and bequeath the same to the heirs of his body by him begotten, if there be any such heirs him surviving, and should he have no heirs of his body by him begotten, him surviving, then I give and devise the said real estate to him hereinbefore devised to the said Samuel and Sumner and to my granddaughter, Effie Pharr, in equal proportions in fee.” Held, that the devise was to E for life with remainder to his children and not to his heirs; that the rule in Shelley’s Case had no application, pp. 96-101.</p> <p>Same. — Construction.—Life Estate. — Where a testator devises only a life estate, and the words describing the devisees of the remainder denote children or other definite persons, or where modifying expressions are used which show that such was the meaning intended, then the persons so designated will take as purchasers, and the life estate will not be enlarged in the first takers., p. 107.</p> <p>Same. — Construction.—Life Estate. — It in the devise of a life estate, the testator has used modifying words in connection with the words of inheritance, the courts will observe the meaning and force of such modifying expressions, in determining whether the intention was to give the estate to the donee and his issue from generation to generation, or to devise his property to his children or grandchildren or other definite persons, p. 111.</p>

<p>Appeal. — Must be From Final Judgment. — Dismissal.—An appeal taken before a final disposition of tbe cause as to all the parties will be dismissed.</p>

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

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

<p>Appeal and Error. — Assignment of Errors. — An assignment of error as to the ruling of the court on demurrer to a pleading which does not apprise the court of the particular pleading intended, presents no question for review on appeal, p. 124.</p> <p>Vendor’s Lien. — Acceptance of Security as to Portion of Unpaid Purchase-money. — Waiver of Lien. — The acceptance by the vendor of a mortgage as security for a portion of the unpaid purchase-money of land sold, constitutes a waiver of the vendor’s lien for the remainder, in the absence of an express agreement that the lien shall be retained, pp. 124, 125.</p> <p>Appeal and Error. — Harmless Error. — The admission of incompetent evidence is harmless, where the finding on such issue was in favor of the party objecting, p. 125.</p>

<p>Affidavit and Information. — Forgery.—Copy of Forged Instrument. —When Signed in German. — Where one of the names alleged to be forged to a promissory note is written in German, the copy of such name to the note, set out in the affidavit and information charging such forgery, need not be written in German, pp. 126, 127.</p> <p>Forgery. — Tittering Forged Instniment. — Separate Offenses. — Former Acquittal. — Forgery, and the uttering of a forged instrument are two distinct crimes, and the plea of former acquittal, on a charge of uttering a forged instrument will not constitute a bar to a prosecution for the forgery of such instrument, pp. 127-129.</p> <p>Evidence — Husband and Wife. — Confidential Communication.— Forgery. — Evidence given by the wife of one charged with forgery that her husband forced her to sign one of the names to the forged note, he spelling the name as she wrote it, is not a confidential communication. pp. 129-133.</p> <p>Verdict. — Separation of Jury Before Returning Verdict Into Court. —No error is committed by the court in permitting the jury, after agreeing upon a verdict and sealing same up,to separate before returning the verdict into court, pp. 133, 134-</p>

<p>Appeal and Error. — Failure to Perfect Appeal Within One Year From the Rendition of Judgment Appealed From. — Statute Construed. — The failure of the clerk to enter a judgment on a verdict, for more than three weeks after the rendition thereof will not constitute a sufficient excuse for the failure of appellant to complete an appeal therefrom within one year as provided by section 645, Burns’ R. S. 1894.</p>

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

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

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

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

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

<p>Venue. — Change of in Application to Have Person Declared of Unsound Mind. — Statute Construed. — The provisions of the civil code as to change of venne applies to the appointment of guardians for persons of unsound mind as provided by section 2715, et seq., Bums’ R. S. 1894, as amended by act of 1895 (Acts 1895, p. 205). pp. 177-180.</p> <p>Action. — Application for Appointment of Guardian for Person of Unsound Mind. — Nature of Action. — An application to have a guardian appointed for a person of unsound mind is not an ex parte proceeding but is adversary, and notice is indispensable unless waived, p. 179.</p> <p>Guardián. — Appointment for Person of Unsound Mind. — Change of Venue. — Where a change of venue has been taken in a proceeding to have a guardian appointed for a person of unsound mind the court trying the cause must make the appointment of the guardian. p. 180.</p>

<p>Officers. — Entitled Only to Fees Allowed by Statute. — An officer is entitled only to the fees allowed by statute, p. 182.</p> <p>Same. — County Auditor. — Under section 126 of the act of March 11, 1895 (Acts of 1895, p. 356), providing that the auditor of a county shall be allowed on his salary only an amount' equal to that collected by him as fees and turned into the treasury, a county auditor who has paid out for office expenses the fees collected by him is not entitled to any salary, p. 184.</p> <p>Constitutional Law. — Fees and Salaries. — Act of 1891. — Stare De-° cisis. — The fee and salary law of 1891 (Acts of 1891, p. 424), is not unconstitutional as being local and special legislation. Henderson, Auditor, v. State, ex rel., 137 Ind. 552; State, ex rel. McCoy v. Krost, 140 Ind. 41, and Walsh v. State, ex rel., 142 Ind. 357, adhered to, and the doctrine of stare decisis applied, pp. 187-190.</p> <p>Same. — Fees and Salaries. — Act of 1895. — The fee and salary law of 1895, providing for salaries for all county officers in full for their services, and that the fees collected by them shall belong to their respective counties, and that certain officers shall receive as salary only an amount equal to the fees turned into the county treasury, is not unconstitutional as being in conflict with section 22, article 4, of the constitution authorizing local and special laws to “be so made as to grade the compensation of officers in proportion to the population and the necessary services required.” pp. 190-197.</p> <p>Same. — A law will not be declared unconstitutional if the case presented can be rightly decided otherwise, p. 196.</p>

<p>Deed. — Description.—When Void for Uncertainty. — -A deed, devise, or reservation of real estate, the description of which is impossible of ascertainment, is void.</p> <p>Same. — Description.—It is not the office of a description in a deed to identify the land, but to furnish the means of identification.</p> <p>Devise. — Reservation.—Boundary Lines. — Uncertainty of Description. — Where the owner of two adjoining eighty-acre tracts of land located a family burial ground on the west line of the east tract, 39 feet east and west, and 78 feet north and south, enclosing same with a fence, and at his death devised to his daughter the east tract, reserving from the devise one acre of land as a family burial ground “ to be taken in a square from out of the west side so as to comprise the present burial ground;” the reservation is void except as to the present burial ground, as it is impossible to determine a starting point for the boundary lines.</p> <p>Same. —Reservation. — Construction. — Effect. — Where a codicil reserves from a devise an acre of land to be taken in a square so as to comprise an original burial ground, the boundaries of which have been established, the impossibility of identifying the land intended to be added to the original burial ground will not defeat the reservation as to the original burial ground.</p>

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

<p>Practice. — Agreed Case. — Intoxicating Liquors. — Statute Construed. —Section 562, Burns’ R. S. 1894 (558, R. S. 1881), providing for the submission of cases on an agreéd statement of facts is not applicable to an application for a license to sell intoxicating liquors, on appeal from the board of commissioners to the circuit court, pp. 225, 226.</p> <p>Same. — Agreed Case. — Appeal.—The finding of the court on the submission of a cause upon an agreed statement of facts is properly-presented for review by an exception to such finding, not by motion for a new trial, p. 226.</p> <p>Same. — Agreed Case. — Statute Construed. — An agreement as to the facts used merely as evidence in the trial of a cause, no affidavit accompanying such agreement as required in agreed cases, the record showing that there were pleadings after the commencement of the proceedings in the ordinary way, does not amount to an agreed case as provided by section 562, Bums’ R. S. 1894 (558, R. S. 1881). pp. 226, 227.</p> <p>Intoxicating Liquors. — License.—Defective Bond. — Where a bond given to procure a license to sell intoxicating liquors was accepted in good faith and approved, and all other requirements of the statute were complied with, sales made under the license granted would not constitute a criminal offense and establish unfitness to be intrusted with a license, although the bond proved invalid on account of the failure of the principal to sign same. pp. 227, 228.</p> <p>Same. — License.—Bond.—Failure of Principal to Sign Bond. — The failure of the principal to sign a bond executed to procure a license to sell intoxicating liquors will not render such bond invalid, pp. 228, 229.</p>

<p>Appeal and Error. — Final Judgment. — A trial finding and judgment, declaring the priority of certain claims against an estate in the hands of an assignee, is not an interlocutory order but a final judgment from which an appeal will lie. p. SSI.</p> <p>Same. — Bill of Exceptions. — Longhand Manuscript of Evidence.— Where it is not disclosed by the record that the longhand manuscript of the shorthand report of the evidence was filed in the clerk’« office before being incorporated in the bill of exceptions and the evidence is not copied by the clerk, but the original is sought to be made a part of the record, the evidence is not properly in the record, although the bill of exceptions contains a certificate of the clerk to the effect that on the day named, being the same day upon which the bill of exceptions was filed, the longhand manuscript of the evidence was filed in his office and is the same which is embodied in the bill of exceptions, pp. SSI, SSS.</p> <p>Same. — Bill of Exceptions. — Motion to Modify Judgment Must be 'Brought Into Record. — No question is presented in this court as to the action of the trial court in overruling a motion to modify a judgment where neither the motion nor the reason therefor has been brought into the record by a bill of exceptions, p. SSS.</p> <p>Assignment for Benefit of Creditors.— Mortgaged Chattels.— Lien of Mortgage Transferred to Funds Arising From Sale of Mortgaged Property. — Where an assignee sells mortgaged property the lien of the mortgage is transferred to the fund arising from the sale; and on petition of the parties claiming under the mortgage the court may direct the distribution thereof according to priorities. pp. SSS, SSL</p> <p>Same. — Distribution of Funds Arising From Sale of Mortgaged Property. — Presumption.—Where the court on petition of the parties ordered the distribution of funds arising from the sale of mortgaged chattels by an assignee according to priorities, and the evidence on which the court made such distribution is not in the record, the action of the court will be presumed correct, pp. 23J/., 236.</p>

<p>Township. — Powers Of. — Townships, civil and school, are corporations with such powers only as are expressly given by statute, or are necessarily implied, p. 235.</p> <p>Same.* — Authority of Trustee. — The acts of a township trustee create no binding obligation against the civil or school township unless they are authorized by law, and all who deal with him must at their peril ascertain the extent of his authority, p. 236.</p> <p>Same. — Expenses.—Livery Sire. — A township trustee has no authority to bind his township for the hire of a conveyance used by him in attending to his oficial duties, pp. 236-238.</p>

<p>Banks and Banking. — Insolvent Bank. — Stockholders’ Double Liability. — Assignee for Benefit of Creditors Cannot Maintain the Action to Enforce. — The assignee of an insolvent bank cannot maintain an action to enforce the double liability of shareholders provided by section 2933, Burns’ R. S. 1894 (2684, R. S. 1881), such action being enforceable only by the creditors.</p>

<p>Mortgage. — Foreclosure of Two Mortgages Held by Same Person.— Priorities.■ — Surplus.—A party held two mortgages of different dates on the same real estate, given by the same person, and foreclosed them at the same time, separate judgments being rendered. He caused the real estate to be sold on the junior decree, and bid it in for the amount of the judgment and costs, and receipted in full for the amount of the decree. Afterwards he caused the same land to be sold to satisfy his senior decree, bid it in, but the amount of his bid exceeded the amount due him on the decree. The surplus which was paid into the hands of the clerk of the court was claimed by the mortgagor under section 1118, Burns’ R. S. 1894. Held, that the mortgagee was entitled to the surplus arising upon the latter sale, up to the amount of the junior mortgage, pp. Sjjjp*</p> <p>Same . — Foreclosure.—Value of Beal Estate Sold. — For the purpose of satisfying the lien, the amount for which real estate sold at sheriff’s sale on a decree of foreclosure is the value of the real estate. p. ejfl.</p>

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

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

<p>Railroads.— Defective Coupling Dink.— Complaint. — Contributory Negligence. — In an action against a railroad company for injuries to plaintiff caused by a defective coupling link a complaint alleging that “the defect was patent and open to inspection of defendant if an examination of the same had been made,” does not show contributory negligence on the part of the plaintiff for failure to observe the defect, pp. 268-270.</p> <p>Same. — Defective Appliances. — Duty of Company. — A railroad brakeman has a right to assume that the company has furnished an engine and cars the appliances of which were in reasonably safe condition, and he is not Required to make a careful examination and inspection to see whether or not the company has performed its duty. pp. 271, 272.</p> <p>Appeal. — Harmless Error. — Error cannot be predicated upon the ruling of one paragraph, of a pleading, where there is another paragraph under which the same evidence would be admissible, p. 272.</p> <p>Expert Testimony. — Medical Witness. — Re-examination.—It is not proper on the re-examination of a medical expert for such witness to testify as to what is said in a certain medical authority as to the difference between certain diseases, for the purpose of showing which of the diseases was indicated by the discharges from plaintiff’s wound, p. 27U.</p>

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

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

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

<p>Receivers — Judicial Sales. — Mines.—A purchaser of a mine at a judicial sale under a decree ordering the property sold subject to all equities, rights and liabilities for the expense and cost made by the receivers, one of whom was appointed to serve during the year of redemption, cannot complain of the allowance of disbursements by the receiver for labor in operating the mine and expenses incurred in repairing said mine and preserving same from damages caused by an explosion because such disbursements were made without an express order of the court, and the order appointing him forbid creating any indebtedness, except such as was authorized by court upon proper notice, where the acts of all the parties as well as those of the court indicate that the prohibition in the order was deemed to extend only to indebtedness incurred by borrowing money, and the purchaser was aware of the expenditures as they were being made and did not object thereto, and accepted outstanding accounts arising from sales of coal made during the receivership.</p> <p>Same. — Attorney’s Fees. — A purchaser of property at a judicial sale under a decree ordering the sale to be made subject to the expense and cost made by receivers, one of whom was to serve during the year of redemption, and who was directed by the court to employ a certain attorney, cannot object to the allowance for attorney’s fees because the receiver discharged such attorney and employed another, where the court ratified such act and the item of legal services was not thereby increased.</p>

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

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

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—The Supreme Court can not consider and decide any question which depends for its decision upon the entire evidence, when the hill of exceptions affirmatively shows on its face that all of the evidence given at the trial is not in the record, notwithstanding a statement in the bill that it contains all of the evidence, p. 301.</p> <p>Same. — Bill of Exceptions. — Longhand Manuscript of Evidence, How Made Part of Record. — It must affirmatively appear from the record that the longhand manuscript of the evidence was filed in the clerk’s office before being incorporated in the bill of exceptions. pp. 301, 302.</p> <p>Judgment. — Modification.—Practice.—The proper mode of objecting to the form or substance of a judgment is by a motion to modify, pointing out in the motion the particular corrections or changes which the moving party desires the trial court to make. p. 303.</p>

<p>Practice. — Pleading.—Amendment.—An amended pleading takes out of the record the original pleading with the rulings thereon, p. S05.</p> <p>Complaint. — Action to Quiet Title. — Statute Construed. — A complaint in an action to quiet title to real estate which shows that plaintiff is the owner of the lands and that defendant is asserting an unfounded claim thereto, is sufficient under the provisions of section 1082, Burns’ R. S. 1894 (1070, R. S. 1881). p. 305.</p> <p>Pleading. — Misjoinder of Causes of Action. — Practice.—A judgment will not be reversed on account of a misjoinder of causes of action, p. 305.</p> <p>Statutory Construction. — “Decision." — “Finding."— The word “decision,” used in section 568, Burns’ R. S. 1894 (559, R. S. 1881), making it a ground for a new trial that the verdict or “decision” is not sustained by sufficient evidence, or is contrary to law, is equivalent to “finding” where the cause is tried by the court, p. 806.</p> <p>Trial. — Practice.—Exception.—An assignment as cause for a new trial .that the decision of the court is contrary to law does not perform the office of an exception to the conclusions of law stated in a special finding of facts, p. 306.</p> <p>Same. — Special Finding. — The facts in issue by the pleadings are those which are regarded as material in the statement of special findings, and it is not necessary for the court to state the conclusion reached upon each incident or circumstance introduced in support or denial of an alleged fact. p. 307.</p> <p>Appeal and Error. — Weight of Evidence. — The Supreme Court will not pass upon the weight of conflicting evidence, p. 307.</p>

<p>Mortgages. — Equitable Assignment. — The assignment of a note secured by a mortgage operates, pro tanto, as an assignment of the mortgage itself.</p> <p>Same. — Record Of. — Presumption.—Where the mortgage record in the county recorder’s office shows no assignment of a note secured by a certain recorded mortgage, it will be presumed that the note is still owned by the mortgagee.</p> <p>Same. — Foreclosure.—Plaintiff May Rely Upon the Record as to Name of Junior Mortgagee. — In an action to foreclose a mortgage the plaintiff has a right to rely upon the record in the county recorder’s office as to the name of a junior mortgagee, and if the record shows no assignment of the junior mortgage, and the junior mortgagee is a nonresident, a notice by publication under that name is sufficient, although the name of the payee of the note secured by the mortgage as set out in the record of the mortgage is not the same.</p> <p>Same. — Laches.—Failure of Junior Mortgagee to Correct Record of His Ifame. — A junior mortgagee is guilty of laches in failing for fifteen years to discover and correct an error in the recording of his name which precludes him from questioning a title based on the foreclosure of a senior mortgage in an action in which he was made a party by the name appearing on the record.</p>

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

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

<p>Murder. — Circumstantial Evidence. — Reasonable Doubt. — Defendant was-indicted for the murder of his wife. At the trial the evidence showed that the defendant was a minister of the gospel; that he and his wife had been married nearly eight years, during which time they lived happily together; although there was some evidence tending to show that defendant had been seen going clandestinely by the back way into the house where a certain young woman lived, and that this same woman had been seen after midnight, on a certain occasion when defendant’s wife was away from home, coming from an alley in the rear of defendant’s house. The evidence at the trial further showed that on the night of the homicide defendant and his wife returned home from church together; that at about one o’clock in the night, the neighbors were awakened by pistol shots and cries of “help” and “murder” at or near defendant’s house, and shortly afterwards defendant was found in the street near his house, dressed only in his night clothes, suffering from a number of slight cuts in the body and two bullet wounds, one of which was a mere flesh wound, and the other more severe, the bullet having entered just below the left shoulder; that defendant’s wife was found lying dead in the doorway, a pistol ball having been shot through her brain. Blood and burnt powder were found on the pillow of the bed where the wife of defendant had lain when shot; that the furniture in the house was in no way disarranged; that defendant’s pistol, razor, pantaloons and pocketbook were found outside of the house, where they might have been thrown from the woodhouse window, and mammalian blood was afterwards found on the sill of such window. It was shown that the cuts om defendant’s body were made by his razor, and that all the pistol shots were from defendant’s pistol. It was also shown that during the night of the homicide a slight snow had fallen, and that immediately after the alarm diligent search was made for the tracks of the alleged burglars, but none were found. The theory of the State was that defendant shot his wife while she was lying in bed, and, afterward, with his own hands, placed her in the doorway; that his own wounds were self-inflicted; that defendant threwthe pistol, razor, pantaloons, and pocketbook from the woodhouse window, and that the blood on the window sill fell from his own wounds while so doing; and that the story of the burglars was a mere fabrication. Held, That the evidence is sufficient to exclude every reasonable hypothesis other than that of defendant’s guilt of the murder, pp. 838-354.</p> <p>Appeal and Error. — Error of Fact. — Remedy.—It is the province of the jury to weigh the evidence and settle conflicts therein, and if they err it is a mistake of fact and not of law; and it is the duty of the trial court to correct such error by granting a new trial. The error is not available on appeal, pp. 353, 354.</p> <p>Circumstantial Evidence. — A Fact in the Nature of an Inference May he Taken as a New Inference. — Where in the trial of a criminal cause it is sought to establish the guilt of the accused by circumstantial evidence, one inference cannot be based on another; but a fact in the nature of an inference may itself be taken as the basis of a new inference, p. 363.</p> <p>Murder. — Proof of Motive Unnecessary. — Proof of motive is not essential to the conviction of one charged with murder. Motive may be inferred from the commission of the crime, p. 364.</p> <p>Evidence. — Jury Should Harmonize Conflicting Evidence. — It is the duty of the jury, if possible, to harmonize seemingly conflicting evidence, and thereby avoid imputing perjury to any of the witnesses. p. 396.</p> <p>Same. • — Failure of Defendant in Criminal Cause to Introduce Evidence, When a Presumption of Guilt. — Where a defendant charged with a crime has -within his reach evidence by which he may repel that which is offered to his prejudice, his failure to introduce such evidence creates a presumption against him. pp. 866-368.</p> <p>Circumstantial Evidence. — Proof of Evidentiary Fact Connected With Primary Fact Only by Circumstances. — Where there were circumstances tending to show that defendant, after having committed a murder, and after having inflicted wounds upon himself, went into the woodshed near the house where the murder was committed, and threw articles from the window thereof, it was not improper to admit the testimony of an expert showing that blood afterwards found upon the window sill was mammalian blood, pp. S68, 369.</p> <p>Witness. — Impeachment.—When a Witness May be Supported by his Declarations Made Out of Court. — A witness sought to be impeached, by showing that he had made statements out of court inconsistent with statements in court, may be supported by proof of declarations made out of court in harmony with those made in court, pp. 371, 372.</p> <p>Evidence. — Testimony of Witness that he Called Attention to a Particular Fact. — Admissibility Of. — The admission of testimony of a witness that he had called another person’s attention to a particular fact, which fact in itself was of no significance, but which taken in connection with other circumstances shown might be of some importance and relevancy, is not error, p. 373.</p> <p>Same. — Mere Conclusion of Witness Not Admissible. — Testimony by a witness that he thinks a pistol was not at a specified place at a given time, as he believes he would have seen it if it had been there, is a mere conclusion of the witness, and is properly excluded, p. 373.</p> <p>Appeal and Error. — Exclusion of Evidence. — No Offer to Prove.— The refusal to allow a witness to answer a particular question is not available error where no offer to prove what witness would testify to is made. pp. 373, 374.</p> <p>Harmless Error. — Improper Cross-Examination of Witness. — To allow witness for defendant charged with the murder of his wife, which he claimed was committed by burglars, the tracks of whom were looked for, to answer the question on cross-examination whether, while dressing defendant’s wounds that night, he did not say to those present: • ‘Some of you level-headed men go out and look for tracks, ” is harmless error, p. 374,</p> <p>Grand Jurors. — Testimony Of.— Oath. — The oath of grand jurors that they will not disclose the proceedings given before them does not prevent them from testifying in court as to such proceedings. p. 375.</p> <p>Same. — Right to Testify in Trial Court as to Proceedings of Grand Jury, Not Limited to Particular Classes of Cases. — Statute Construed. —Section 1731, Burns’ R. S. 1891 (1662, R. S. 1881), providing that a member of a grand jury may be required to disclose the testimony of a witness examined before the grand jury, “for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony upon his trial therefor,” does not limit the right to require grand jurors to testify to the two cases specified, pp. 375-377.</p> <p>Same. — May Give Oral Testimony as to Proceedings Before Grand Jury. — As the statute does not require the testimony of witnesses before the grand jury to be in writing, a grand juror may, in the trial court, detail orally the testimony given by the defendant before the grand jury, where it is shown that all the evidence of the defendant before the grand jury was not reduced to writing, pp. 377-379.</p> <p>Appeal and Error. — Misconduct of Juror. — New Trial. — The decision of the trial court on a motion for a new trial for misconduct of a. juror will not be reviewed on appeal where the evidence as to such misconduct, as shown by the affidavits filed, was conflicting, pp. 378, 379.</p> <p>Circumstantial Evidence. — Subsidiary and Evidentiary Facts Need Not be Proven Beyond a Reasonable Doubt. — The subsidiary and evidentiary facts which are not essential elements of the crime charged against the defendant, when considered together as a whole tend to prove or disprove the existence of one or more primary facts. • necessary to make out the offense, need not be proven beyond a reasonable doubt, pp. 379-381.</p> <p>Instructions. — Incomplete.—Remedy.—An objection to an instruction that it does not properly define certain terms used therein is available only by the aggrieved party asking the court for an additional instruction covering the supposed omission in the one given, pp. 381. 382.</p> <p>Same. — Estoppel.—An instruction; ‘ ‘That the defendant in a criminal cause is not required to satisfy the jury of the existence of any fact which, if true, is a complete defense. It is sufficient if he creates in the minds of the jury a reasonable doubt of the existence of such fact,” is a correct statement of the law as applicable to an affirmative defense in a criminal case though not to the law arising upon a defénse negative in its character; and,although not applicable to the evidence, the defendant is estopped from objecting to the instruction, he having requested the court to give the first sentence thereof, the addition being necessary to make it a correct statement of the law. pp. 383, 384.</p> <p>Same. — Duty of Jury. — The following instruction to the jury in a criminal case: “I submit this case to you with the confidence that you will faithfully discharge the grave duty resting upon you without upon the one hand of being moved by any undue demand for conviction on the part of counsel for the State, or being swayed from its right performance by any undue appeal to your sympathies. You will hear in mind that neither the life nor the liberty of the accused maybe trifled away, and neither taken by careless or inconsiderate judgment. But if after a careful consideration of the law and the evidence in the case, you are satisfied beyond a reasonable doubt that defendant is guilty, you should return your verdict accordingly. Duty demands it, and the law requires it. You must be just to the defendant and equally just to the State. As manly, upright men charged with the responsible duty of assisting the court in the administration of justice you will put aside all sympathy and sentiment, all consideration of public approval or disapproval, and look steadfastly and alone to the law and the evidence in the case, and return a verdict warranted thereby,” is not prejudical to the defendant as being a call to conviction, pp. 884, 885.</p> <p>Same. — Refusal to Give Instruction Covered by Others Given, Not Error. — It is not error for the court to refuse to give an instruction if the subject covered by the instruction is fully covered by another instruction given by the court, p. 887.</p>

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

<p>Appeal and Error. — Harmless Error. — Action to Quiet Title to Real Estate. — Statute of lAmitations. — Practice.—Sustaining a demurrer to a paragraph of answer pleading the statute of limitations, in an action to quiet title to real estate, is harmless error where a general denial has been pleaded, as all matters of defense, including the statute of limitations, were admissible under the general denial. p. 397.</p> <p>Judgment. — Action to Quiet Title to Real Estate. — Lien for Taxes Not Barred by. — A decree quieting title to real estate as against a life tenant will not constitute a bar to an action to enforce a lien on such real estate for taxes paid, as against remainder-men, where it does not appear upon what grounds the action against the life tenant was based, pp. 399-401.</p> <p>Limitation op Actions . — Nonresident Defendants. — Statute Construed. — In an action for the enforcement of a lien for taxes paid, defendants who were nonresidents of the State from the time the cause of action accrued until the beginning of the suit, cannot plead the statute of limitations as a bar to such action, as the time which defendants were nonresidents of the State is not, under section 298, Bums’ R. S. 1894 (297, R. S. 1881), computed in any period of limitation. jp. Jfil.</p>

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

<p>Street Railroads. — Crossings.—Same Rules of Law Do Not Apply as to Steam Railroads. — The rule requiring a traveler to stop as well as look and listen before crossing a railroad track does not apply to.foot passengers crossing a street railroad track at a crossing in a city, unless there is some circumstance which would make it ordinarily prudent to do so, as passengers have special rights at such crossings; the rule requiring foot passengers to use their senses to avoid injury applies also to the controller of the street car or other vehicle upon the street, pp. 411, 41s.</p> <p>Same. — Crossings.—Double Tracies. — Duty of Company to Passenger. — Negligence.—-When a street railway company operating a double-track road discharges a passenger at a street crossing, having reason to know that such passenger, in order to reach his destination, must cross its tracks, it is the duty of the company to regard the rights of the passenger while on the crossing, and so control the speed of cars on its tracks and give such warning of their approach as will reasonably protect the passenger from injury, and the omission of such duty amounts to actionable negligence, p. 413.</p> <p>Same. — Crossings.—Double Tracks. — Contributory Negligence. — Presumption. — Where a passenger on a street car after alighting therefrom, and while attempting to cross a double track, was struck by a car coming in the opposite direction, and there was no evidence as to the acts of decedent from the time he left the car till he was struck, and such interval was long enough to have permitted him to cross the tracks in safety, it will not be presumed that he was free from contributory negligence, although the approaching car was being run in a negligent and reckless manner, pp. 413-413.</p>

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

<p>Wills. — Construction.—Trust and Trustees. — The language “I will that Addison Hadley, Mordecai Hadley and Addison Coffin take in charge, as trustees, and devote the same [certain real estate], if thought practicable, to the erection and maintenance of an institution for the education of the poor, virtuous, and aspiring children and young persons,” vests a naked power in the three trustees not coupled ■with an interest, and upon the death of one of the trustees before the trust takes effect, the trust becomes wholly inoperative and void for want of authority on the part of the surviving trustees to act. • pp. 427, 428.</p> <p>Same. — Construction.—Tnist.—Death of Trustee. — Where certain real estate is devised to three persons who, as trustees, are to take charge of the same, and if deemed practicable by such trustees the land to be devoted to a particular purpose, but if by them not deemed practicable the lands to be sold and the proceeds distributed in a specified manner, the provision for the sale and distribution fails where one of the persons named as trustee dies before the testator. pp. 428-430.</p>

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

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

<p>Criminal Law. — Trial.—Argument of Counsel. — It was not error for the prosecuting attorney in his argument to the jury to properly comment upon evidence which showed defendants to be tramps, where such defendants were on trial for assault and battery with intent to commit murder, p. 448.</p> <p>Criminal Law. — Argument of Counsel. — Error of Logie. — How Cured. — Harmless Error. — A statement to the jury by the prosecuting attorney in the argument of a criminal cause that “the weaker the case a defendant has, in a criminal case, the harder they cry reasonable doubt,” will not warrant a reversal of the judgment where the instruction of the court placed fully and fairly before the jury the rights of defendants under the rule of reasonable doubt as to their guilt or innocence, p. 44$ ■</p> <p>Instructions. — Refusal to Give.— It is not error to refuse to give an instruction where the same subject was fully covered by other instructions given, p. 450.</p> <p>Same. — Assault and Battery. — It is not error to instruct the jury in the trial of a case of assault and battery that, if defendants were present at the time of the commission of the assault and remained near by for the purpose of watching and giving aid if necessary thereto, they would be guilty of aiding and abetting in the commission of the crime, pp. 450, 451.</p> <p>Evidence. — Criminal Law. — In a trial for an assault and battery with intent to kill, evidence that defendants resisted arrest, that they attacked and endangered the lives of the officers, and that three of them thus escaped, were circumstances proper to be brought to the knowledge of the jury for the purpose of determining whether such conduct was or was not an indication of guilt of the crime charged. p. 452.</p>

<p>Counties. — Allowance of Claim. — Arbitration and Award.-"-Boards of county commissioners have no power to submit disputes concerning claims against the county to arbitration, and the allowance of an award so made is without authority and void.</p> <p>Same. — Allowance of Claim. — Arbitration and Award. — Appeal by Taxpayer. — Any taxpayer of the county may appeal from the action of the board of county commissioners confirming an award of arbitrators on a claim against the county.</p>

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

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—The evidence is in the record where the clerk’s certificate to the transcript states that the longhand manuscript was filed in his office before it was incorporated in the bill of exceptions, p. 465.</p> <p>Taxation. — Omission of Credits from Schedule by Direction of Assessor. — The omission of credits from the assessment schedule, in violation of section 6332, R. S, 1881, will not deprive a taxpayer of the benefit of the deduction, where the taxpayer had stated to the assessor the true amounts of such credits, which were omitted at the direction of the' assessor who stated that it was his practice not to list credits where they were exceeded by the indebtedness. pp. 466, 466.</p>

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

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

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

<p>Free Gravel Roads. — Order for an Election on Part of Roads Petitioned for, Not Void. — Collateral Attach. — The act of the board of commissioners in ordering an election on only a part of the roads described in a petition under section 2 of the act of 1895 (Acts of' 1895, p. 146), if erroneous, is not void, and is not, therefore, subject to collateral attack, p. BOS.</p> <p>Constitutional Law. — Taxation.—The power of the legislature in matters of taxation is unlimited, except as restricted by the constitution. p. B0Jj..</p> <p>Same. — Taxing Districts. — The legislature, in the exercise of its power as to taxation in making local improvements, may create a special taxing district without regard to the boundaries of the counties, townships or municipalities, p. 501/.</p> <p>Same. — Improvements.—Assessment.—A tax or assessment for local improvement is based upon the theory that it is a return for the benefit received by the person who pays the tax or by the property assessed, p. 505.</p> <p>Same. — Taxing Districts. — The legislature may declare that all or a portion of the property within a taxing district created is benefited, either according to its value or in proportion to its actual benefit to be determined by the legislature itself by persons selected for that purpose, p. 505.</p> <p>Free Gravel Roads. — Taxation for Construction Of. — -The special tax to be paid for the construction of free gravel roads, under the . act of March 7, 1895 (7286 Thornton’s R. S. 1897), is an assessment of benefits to the persons and property taxed by the legislature in the exercise of its sovereign power of taxation, p. 507.</p> <p>Same. — Bonds for Construction of, Not County Indebtedness.' — Constitutional Law. — Bonds issued by the board of county commissioners, under section 3 of the act of March 7, 1895, for the construction of free gravel roads do not constitute an indebtedness of the county within the meaning of article 13 of the constitution limiting the indebtedness of political corporations to two per cent, of the value of the taxable property, p. 507.</p> <p>Townshies. — Obligations Payable Out of Particular Fund. — Constitutional Law. — Obligations payable out of a particular fund and for ■ which the fund only, and not the township, is liable, are not within the inhibition of article 13 of the constitution, p. 509.</p> <p>Free Gravel Roads. — Special Tax for Construction of, Not a Township Obligation. — The special tax levied by the board of commissioners upon all the property of a taxing district for the construction of a free gravel road under the act of March 7, 1895, is not.an indebtedness of the township or townships composing such taxing district, but an indebtedness of the taxpayers, and for which only their property is liable, p. 509.</p>

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

<p>Street Improvement.— Jurisdiction. — Presumption.—Where a town board ordered a portion of a street adjoining the town to be improved, assuming such part of the street to be within the corporate limits of the town, and proceeded to make the improvement accordingly, it will be presumed, until the contrary is shown, that the board had jurisdiction to make the improvement, and that such action was lawful, p. 521,</p> <p>Boundaries. — Highways and Streams as Boundaries. — Description of Real Estate. — Where land is described as bounded upon a highway or a stream, the middle of the highway, or the thread of the stream is understood as the boundary line. p. 528.</p> <p>Street Improvement. — When Property Assessed for, Does Not Abut Upon the Street Improved. — Statute Construed. — Where a lot separated from a street by an intervening strip of land two feet in width is assessed for the improvement of such street, an action will not lie to quiet the title to such lot as against such assessment until the assessment is paid under section 4290, Burns’ R. S. 1894, which provides that land lying immediately upon and adjacent to the line of the improvement, and extending hack fifty feet shall be primarily liable for the whole cost of the improvement, and if this should prove insufficient other parcels in their order, extending back one hundred and fifty feet, shall be liable for the cost thereof. pp. 523,524-</p> <p>Dedication. — Town Plat. — Street Improvement. — Where by a town plat a strip of land two feet in width, lying between a street and adjoining lots, is reserved for a fence, to be held as the private property of the owners of the several lots in the town, the adjacent lot owner has the same title to such strip of land as he has to the fee of the street to the center thereof, the only difference being that the lot owners of the town, instead of the public at large, have an easement therein, and such strip of land cannot be sold for street improvements any more than could the sidewalk between the lot and the roadway, p. 525.</p> <p>Same. — Town Plat. — Recorded Without Authority of Law. — Although the recording of a town plat was without authority of law, the public acts of the proprietors in making and using a plat and selling lots with reference thereto will constitute a dedication of the streets and alleys, and a reservation of á, strip of land surrounding such town for a fqnce, as to all persons who had obtained title to lots which had been sold according to such plat. pp. 525, 526.</p>

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

<p>Real Estate. — License.—A mere naked license to use the land of another is revocable at the pleasure of the licensor; but when the license has been executed and acted upon, and expense incurred in reliance upon such license, it cannot be revoked without at least placing the licensee in statu quo. p. 532.</p> <p>Vendor and Purchaser. — Notice of License. — A purchaser of real estate without notice of an adjoining landowner’s right to drain his lands through a ditch thereon, even though such right is an irrevocable license, takes the real estate free from such right, and may convey it free from such right to one who has notice or knowledge thereof, pp. 532,533.</p>

<p>, COSTS. — Judgment For. — Retcixation.-—A judgment for costs, “taxed at 8-,” is only for such an amount as is authorized by law; and if improperly taxed by the clerk, they may, upon motion, be retaxed after affirmance of the cause by the Supreme Court.</p>

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

<p>Accident Insurance. — Death by Drowning. — Involuntary death by drowning is a death by accident, p. 549.</p> <p>Insurance. — Conditions in Policy. — Construction.—A condition in an insurance policy which is to operate upon the contract of insurance only subsequent to the fact of loss, will be liberally construed in favor of the beneficiaries, p. 549.</p> <p>Accident Insurance. — Notice of Death of Assured. — Where an accident insurance policy provides that in the event of injury or death of the assured, notice thereof shall be given to the company within ten days from the date of such injury or death, notice wdthin sixteen days is sufficient where it is shown that the notice was given wdthin five days after the beneficiary had learned, through the finding of the coroner, that the death was accidental, especially where the company, through its general agent, was immediately apprised of the death by newspaper accounts, p. 553.</p>

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

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

<p>Appeal and Error. — Complaint.—When Tested for First Time in Supreme Court. — When a complaint is tested for the first time by an assignment of error in this court, it will be held sufficient if it contains facts enough to bar another action, p. 572.</p> <p>Complaint. — Sufficiency Of. — Demurrer.—Where a complaint states facts sufficient to entitle plaintiff to damages in an action for damages and for an injunction, it is sufficient to withstand a demurrer for want of facts, p. 572.</p> <p>Injunction. — Complaint.—Necessary Allegations. — It is not necessary in an application for an injunction to aver that the plaintiff will suffer irreparable injury if the relief by injunction is not granted. All that is necessary is to aver that the plaintiff will suffer great injury, p. 572.</p> <p>Same. — Complaint.—Necessary Allegations. — If, from the facts alleged in the complaint in an application for an injunction, it is apparent that plaintiff has no other complete or adequate remedy, he is entitled to an injunction, p. 572.</p> <p>Same. — Complaint.-—Necessary Allegations. — -A complaint for an injunction to prevent defendant corporation from cutting off the supply of natural gas which it had agreed to furnish plaintiff so long as a sufficient supply thereof existed, and which further alleges that plaintiff, relying on such an agreement, erected an electric light plant at a large expense, and entered into a contract with a number of private consumers to furnish them light, and that to disconnect said plant from the natural gas main would cause a breach of such contracts, for which plaintiff would be liable in damages, and that there is no other gas well accessible to said plant, and that he has no other means of obtaining fuel for the operation of said plant without great delay and expense, states facts sufficient to entitle plaintiff to an injunction, pp. 573, 57j.</p> <p>Same. — Complaint.—Uncertainty of Contract on Which Injunction Is Invoked. — A contract set out in a complaint for an injunction which provides that plaintiff was entitled to sufficient natural gas with which to operate his electric light plant, so long as said gas well would supply the same, expresses with sufficient certainty the agreement of the parties to sustain an injunction for the enforcement thereof, pp. 57j-576.</p> <p>Trial. — Practice.—Separation of Witnesses. — Discretion of Court.— It is within the discretion of the trial court to except from the order directing the separation of the witnesses any agent, director or managing officer of a corporation who is a witness in the canse and whose presence is essential to advise counsel so as to enable them to properly conduct the cause, p. 517.</p> <p>Judgment. — Motion to Modify. — A motion to modify a decree restraining defendant from interfering with plaintiff’s supply of gas from defendant’s well, so as to provide that defendant should not be prohibited from using gas therefrom, is properly denied where the motion to modify omitted a provision in the contract between the parties that defendant should continue to furnish plaintiff with sufficient gas to operate his electric light plant so long as the well should supply gas. pp. 578, 579.</p>

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

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

<p>Appeal and Error. — Record.—Bill of Exceptions. — It should be shown by the record that the bill of exceptions was filed in the clerk’s office after being signed by the trial judge, p. 609. Pleading. — Name of Pleading. — If the allegations of a pleading are sufficient, the name by whioh it may be called will not be controlling. p. 610.</p> <p>Bills and Notes. — Condition.—Construction.—A condition in a note, “ It being understood that the payment of this note is conditioned upon collection of said Krech note,” is properly construed to mean payment in full of the Krech note, where such note was executed to a real estate agent as commission for negotiating a sale of real estate, the Krech note being in part payment of the purchase money thereof and assigned to such agent as collateral security. pp. 610, 611.</p>

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

<p>Criminal Law. — Kidnapping.—Residence of Person Carried Away. —Statute Construed. — It is not necessary in a prosecution for kidnapping, under section 1988, Burns’ R. S. 1894 (1915, R. S. 1881), to prove that the persons carried away had acquired a permanent residence at the place from which they were so taken; proof that such persons were at a place where they had a right to be is sufficient.</p>

<p>Natural Gas. — Waste Of. — Constitutional Law. — Section 2316. Burns’ R. S. 1894, declaring that burning natural gas in flambeau lights is a wasteful use thereof, and forbidding such use under penalty of fine, is not in violation of the fifth and fourteenth amendments to the federal constitution, providing that no person shall be deprived of his property without due process of law. pp. 826-633.</p> <p>Same. — Bill of Rights. — A statute prohibiting the burning of natural gas for illuminating purposes in flambeau lights is not in violation of section 1 of the Bill of Rights, which guarantees to every person life, liberty, and pursuit of happiness, p. 627.</p> <p>Same. — Waste Of. — Constitutional Law. — A statute prohibiting the waste of natural gas being within the police power, a determination by the legislature that the burning of natural gas in flambeau lights is a wasteful use is conclusive on the courts, pp. 633, 634.</p> <p>Constitutional Law. — Unjust Statute. — Whether a .statute encroaches upon the natural rights of the citizen is a legislative and not a judicial question, and courts cannot overthrow it upon that ground, p. 634.</p> <p>Same. — Legislative Power, Limitations Of. — The only limitations upon the power of the legislature are those imposed by the state and federal constitutions and the treaties and acts of congress. pp. 634- 635.</p> <p>Same. — Recital in Statute of Fact Ascertained, Not a Judicial Act.— The recital in a statute of a fact which the legislature ascertained by investigation in order to apply the proper remedy by legislation, is a legislative and not a judicial act, and therefore not in violation of section 1 of article 7 of the constitution, providing that *1 the judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” p. 685.</p> <p>Appeal and Error. — Qualifications of Jurors. — The question of a juror’s qualification to sit on a jury can be presented on appeal only by a bill of exceptions, p. 636.</p> <p>Same. — Misconduct of Court. — A statement by the trial judge, while the jury is being impaneled to try a defendant charged by the State with the violation of the statute, that the jury is not to try the constitutionality of the statute, is not reversible error, where no motion was made to discharge the jury, and the judge at the proper time instructed the jury that they were the judges of the law. p. 637.</p> <p>Natural Gas. — Waste by Flambeau Lights. — Continuous Offense.— Evidence. — The offense of wasting natural gas by burning it in a flambeau light in violation of section 2316, Burns’ R, S. 1894, is a continuous one, and the admissibility of evidence showing a violation of the statute at other times prior to the time charged in the indictment is not error, p. 688.</p>

<p>Appeal and Error. — Overruling Demurrer. — Practice.—Error cannot be predicated upon the action of the court in overruling a demurrer to the first and third paragraphs of a complaint where the judgment appealed from was based upon the second paragraph.</p> <p>Railroad Crossing. — Injury at Grossing. — Negligence.—A railroad company is liable in damages to one who was injured while attempting to cross a railroad track at a much-used crossing by reason of her horse becoming frightened at steam escaping from a locomotive standing in close proximity to such crossing, where the engineer in charge of such locomotive assured plaintiff that it was safe to cross the tracks, and where by due care the escape of such steam could have been prevented.</p> <p>Appeal and Error. — Bill of Exceptions. — How Made Part of Bee• ord. — The bill of exceptions containing the longhand manuscript of the evidence must be filed in the clerk’s office after it is signed by the trial judge in order to become a part of the record.</p>

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

<p>Slander. — Words Not Slanderous Per Se. — Words charging a person with writing and posting up the following notice: “We have been informed that your wife is sick and needs attention and that you are wdlfully neglectful of her. We wish to inform you now and for the last time that you must do something for or have something done at once or we will do something for you in a way that won’t be very pleasant. White Caps,” are not slanderous per se. pp. 694, 995.</p> <p>Same. — Words Spoken of a Transaction Which Is Not a Crime.— . Words actionable in themselves, but spoken of a transaction which is not a crime, and of which the hearers have full knowledge, are ' not actionable, p. 696.</p> <p>Same. — Words Spoken of a Physician, When Actionable. — To render words spoken of and concerning a physician actionable, they must be spoken of him in his professional character. It is not enough that the language disparages him generally, or that his general reputation is thereby affected, or that the words used tend to injure him in his profession, p. 696.</p>

<p>Appellate Court. — Jurisdiction.—Constitutional Question. —Where counsel for appellant in an action pending in the Appellate Court, as a reason for a particular construction of a statute insisted on, used the following words in their brief : “Private property can only be taken for a public purpose upon just compensation given,” a constitutional question is not thereby presented so as to deprive the Appellate Court of jurisdiction, under section 1886, Burns’ R. S. 1894, providing that the Appellate Court shall not have jurisdiction where a question of constitutional law is involved and duly presented. pp. 698, 699.</p> <p>Appeal and Error. — Rehearing.—A rehearing will not be granted to permit a party to present a question not presented upon the original hearing, p. 700.</p>

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