Volume 148 — Indiana Reports

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

<p>Boundaries. — Adverse Possession. — A boundary fence between tracts of land which has existed for more than forty years, and which has been recognized by the adjoining owners and their immediate and remote grantors as the line dividing such tracts of land, is the true line, although the deeds of the respective owners conveyed the land according to the survey which showed such fence not to be the original line according to the survey.</p>

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—Where the longhand manuscript, purporting to contain all the evidence, is followed by the shorthand reporter’s certificate, the instructions, and the judge’s certificate, it sufficiently appears that the bill of exceptions contains all of the evidence, p. 19.</p> <p>Intoxicating Liquors. — Ordinance Restricting Sale to Business Portion of City. — An ordinance prohibiting the sale of intoxicating liquor in the residence portion of a city, and confining the sale thereof to the “ business portion ” of such city, under clause 13 of section 3608, Thornton’s R. S, 1897, is not void for indefiniteness because the boundaries of the residence and business portions are not set forth therein, p. 20.</p> <p>Statutory Construction. — Acts Passed at the Same Session of Legislature. — Where two statutes are enacted at the same session of the legislature they should be construed together, if possible ; but, if they be irreconcilable, the later supersedes the earlier, p. 21.</p> <p>Intoxicating Liquors. — “ Moore Law,” Not Local and Special Legislation. — The act of March 9, 1895, known as the “Moore Law,” amending clause 13 of section 3106, R. S. 1881, authorizing cities to pass ordinances prohibiting the sale of- intoxicating liquors in the residence portion thereof, and confining the sale to the business portion, is not unconstitutional as being local and special legislation within the meaning of section 22, article 4, of the constitution, pp. 21-25.</p> <p>Same. — Acts of March 9 and March 11,1895, Not Repugnant. — No such irreconciliable repugnance exists between the act of March 9, 1895, amending section 3106, R. S. 1881, authorizing cities to license, regulate and restrain the places where intoxicating liquors are kept for sale, and the act of March 11, 1895, which is a general act to better regulate and restrict the sale of intoxicating liquors, as to make the latter operate as an implied repeal of the former, pp. 21, 22.</p> <p>Municipal Corporation. — Validity of Ordinance. — The question whether an ordinance is reasonable cannot be raised to affect its validity, where the power to enact the particular ordinance is specifically conferred upon the municipal corporation, pp. 22, 28.</p> <p>Intoxicating Liquors. — “Moore Law.” — Title of the Act Sufficiently Comprehensive. — The fact that the title of the act of March 9, 1895, fails to mention the subject of prohibiting sales in the residence portion of cities does not render the act unconstitutional under section 19, article 4, of the constitution, as it is not prohibition, but regulation of the traffic that the act provides for. p. 26.</p> <p>Same. — County License. — Evidence.—A license to sell intoxicating liquors issued by the board of county commissioners does not exempt the licensee from compliance with any lawful regulation by a city touching such sales conducted within the corporate limits thereof; and in a prosecution for a violation of an ordinance prohibiting the traffic in the residence portion of the city, the county license is not admissible as evidence, pp. 26, 27.</p> <p>Same. — Violation of Ordinance Restricting Sale to Residence Portion of City. — Former License as Defense. — An ordinance prohibiting the sale of intoxicating liquors in the residence portion of a city, and providing that licenses previously issued shall be no defense to an action founded on the ordinance, is valid, and such license is not admissible as evidence in defense in a prosecution for a violation of the ordinance, pp. 87-81.</p> <p>Same. — Violation of Ordinance Restricting Sale. — Retention of Former License Fees. — Estoppel.—Where an ordinance prohibits the sale of intoxicating liquors in the residence portion of a city, and provides that licenses previously issued shall be no defense in an action founded on the ordinance, the payment of the license fee to, and the retention thereof by the city do not estop the city from the enforcement of the ordinance, p. 38.</p> <p>Municipal Corporation. — Ordinance, Failure to Record and Sign.— Statute Construed. — Section 8534, Burns’ R. S. 1894, providing that ordinances shall, within a reasonable time after their passage, be recorded, and shall be signed by the presiding officer of the city, and attested by the clerk, is directory merely, and a failure to reoord and sign the ordinance for some months after its passage does not affect its validity, pp. 38, 33.</p> <p>Same. — Ordinance.—Action for Violation of, a Civil Suit. — Evidence. — In a civil suit by a city for the violation of an ordinance, it is not essential to recovery by the city to prove a sale to both persons named in the complaint, proof of sale to one is sufficient. p. 83.</p> <p>Intoxicating Liquors. — Construction of Act of March 9, 1895. — “Residence Portion of City.” — The “residence portion of a city,” . within the meaning of clause 13 of section 3608, Thornton’s R. S. 1897, does not necessarily mean a portion of the city given up exclusively to family residences, pp. 3k, 35.</p> <p>Instructions. — Naming of Circumstances to Be Considered. — An instruction that the jury may consider certain enumerated circumstances which were proper for their consideration, but which does not tell them that they were bound to consider them, does not invade the province of the jury. p. 36.</p> <p>Appeal. — Assignment of Error. — An objection to the introduction of evidence, not made a ground for a new trial, will not be considered on appeal, p. 36.</p> <p>Evidence. — Whether or Not a Building Is Within the Corporate Limits of a City, a Question of Fact. — A question propounded to a witness as to whether or not a saloon building is within the corporate limits of a city is not objectionable as calling for a conclusion. p. 37.</p> <p>Appeal and Error. — Weight of Evidence. — The Supreme Court will not weigh conflicting evidence to determine where the preponderance lies. p. 38.</p>

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

<p>Criminal Law. — Affidavit and Information. — Time of Commission of Offense. — Statute Construed. — Under the provision of section 1825, Bums’ E. S. 1894 (1756, E. S. 1881), the failure to state in an affidavit and information the time at which the offense was committed, or the imperfect statement thereof, is not fatal .where time is not of the essence of the offense, p. SI.</p> <p>Same. — Affidavit andlnformation. — Time 'of Commission of Offense. —Statute Construed. — Section 1807, Burns’ E. S. 1894 (1738, E. S. 1881), which provides that “the precise time of the commission of an offense need not be stated in the indictment or information, but it is sufficient if it be shown to have been within the statute of lim- • itations,” etc., is in aid of a liberal construction of criminal pleading, and, while not requiring a statement of the time of the commission of the offense, it renders sufficient a statement which may not be precise, p. 52.</p> <p>Perjury. — False Oath to Affidavit and Information. — A false oath, made before the mayor of a city, charging a person with larceny, may become the subject of a prosecution for perjury, notwithstanding no warrant was issued for the arrest of the accused and no legal steps taken in the case. pp. 52, 53.</p>

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

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

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

<p>Pleading. — Amendment.—Practice.—Where a demurrer is sustained to an original complaint and no appeal is taken from such ruling, such pleading, whether called a complaint or an amended complaint, is out of the record, p. 72.</p> <p>Same. — Amended Complaint. — Practice.—Where a complaint to which a demurrer has been sustained is refiled without any changes being made therein, the ruling on the demurrer to the original complaint applies equally to the unchanged “amended complaint,5’and it is also wholly out of the record, pp. 72, 73.</p> <p>Same. — Supplemental Complaint. — Practice.—Where, at the time of filing a supplemental complaint, the original and amended complaints were out on demurrer, such supplemental complaint has nothing to stand upon, and cannot of itself be made the foundation of an action, p. 73.</p>

<p>Practice.— Motion to Strike Out Another Motion.— A motion to strike out another motion is not a proper motion, but if entertained and sustained by the court, it is- equivalent to overruling the first motion, p. 77.</p> <p>Jurisdiction. — Circuit Court. — Presumption.—A circuit court being a court of general jurisdiction, the presumption is, where a judgment has been rendered, that the court had jurisdiction, especially as to the parties, until the contrary is made to appear, p. 78. Judgment. — Collateral Attack. — Drainage.—Where a motion is made in a drainage proceeding to set aside a judgment entered on the report of the commissioners assessing benefits, on the ground that no notice was given the moving parties, such motion is a collateral attack on the judgment, and must set forth that the record discloses such want of notice, p. 78.</p> <p>Same. — Motion to Set Aside. — Court Not Legally in Session. — The statement in a motion to set aside a judgment, that the court was not legally in session when the judgment was rendered, is a statement of a conclusion of law, and therefore unavailing, p. 79.</p>

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

<p>Pleading. — Complaint.—Mutual Life Insurance. — A complaint by policy holders in a mutual life insurance company to enjoin the company from making an assessment upon its members to pay certain specified policies claimed to be invalid, alleging that the plaintiffs are policy holders in defendant company, is sufficient to show that the plaintiffs were members of the company, without setting forth all the steps taken by the appellees to become members, or stating the amount of fees or assessments paid by them. pp. 85, 86.</p> <p>Injunction. — By Member of Mutual Life Insurance Company to Prevent Payment of Invalid Claim. — A policy holder in a mutual life insurance association may maintain a suit to enjoin the association from paying an invalid claim, where it is shown that the association has accumulated, and is accumulating from the assessments collected from its members, a fund for tbe benefit of all policy holders, from which policies are paid at the death of the holders, and from which dividends are distributed to the policy holders, and added to their policies, pp. 85, 86.</p> <p>Injunction. — To Prevent Officers of Mutual Insurance Company from Paying Invalid, Claim. — Where the officers of a mutual insurance company have accepted the proof of loss of a claim made by the beneficiary of an invalid policy, and are about to lay assessments upon the membei's for the purpose of paying said invalid claim, the, members of the company have'no adequate remedy at law, and are entitled to injunctive relief, pp. 87, 88.</p> <p>Mutual Life Insurance. — Joint Action by Policy Holders. — The holders of separate and independent policies in a mutual life insurance company may join as plaintiffs in a suit to enforce a common interest, p. 89.</p> <p>Pleading. — Abatement Not Pleaded with Answer in Bar. — An answer in abatement cannot be pleaded with an answer in bar, but must precede it, and the issue must be tried first and separately, p. 89.</p>

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

<p>Instructions. — Practice.—Statute Construed. — Section 663, Burns’ R. S. 1894 (650, R. S. 1881), dispensing with the necessity of bringing up the evidence on appeal upon the question of the correctness of instructions, makes no change in the practice as to instructions given, as the court, in the absence of the evidence, presumes that the instructions were applicable, p. 94.</p> <p>Same. — Mortgage Given to Secure a Precedent Debt. — An instruction in an action to quiet title to real estate that a mortgage taken to secure a precedent debt does not constitute the holder thereof a bona fide purchaser, states the law correctly, pp. 94, 95.</p> <p>Deeds. — Consideration.—Pre-existing Debt. — A conveyance of land by a debtor, in payment and satisfaction of a precedent debt, makes the grantee a bona fide purchaser of the land as against prior equities acquired from the grantor, of which the grantee had no notice. pp. 95, 96.</p> <p>Vendor and Purchaser.— Consideration. — Pre-existing Debt.— Where land is conveyed by the owner to another in payment and satisfaction of a debt due from the grantor to the grantee, who is ignorant of an equity in the land in favor of a third person, the" enforcement of such equity against the land will not revive the indebtedness for the payment and satisfaction of which the land was conveyed, and the grantee is as much a bona fide purchaser for value as if he had paid cash. p. 99.</p> <p>Appeal and Error. — Instructions.—Presumptions.—The presumption that the instructions given were applicable to the evidence will prevail on appeal where there is a direct statement in the bill of exceptions that the instructions were applicable to the evidence, notwithstanding certain testimony set out in the bill tended to contradict such statement, as such testimony only nullified the cerifícate, and, both being eliminated, the usual presumption that the instructions given were applicable to the evidence would prevail. pp. 99-101.</p>

<p>Highways.— Obstructions.— Damages to Abutting Owner.— The owner of real estate abutting on a public highway cannot maintain • an action for the obstruction of such highway unless some special injury, one not common to all who use the highway, has been sus- ■ tained, where such abutting owner is not the owner in fee simple of any part of the highway, p. 104..</p> <p>Same — Obstructions.—Damages to Abutting Owner. — Special Damages. — The obstruction of a public highway by a railroad switch in. such manner as to materially interrupt an abutting property owner in his means of access to his property, is a special injury, different in kind from that suffered by the public generally, and entitles such abutting owner to maintain an action for'damages for such obstruction, notwithstanding such abutting owner is not the owner in fee of any part of the highway, pp. 104, 105.</p> <p>Evidence. — Intention of Party. — When the character of an act depends upon the intent with which it was done, the party may testify' as to such intention, p. 106.</p> <p>Same. — Dedication of 'Land to Public Use. — Intention of Party.— Where the declarations, acts, and conduct of a landowner are such as fairly and naturally lead to the conclusion that he intended to dedicate land to public use, and others have in good faith acted upon, such acts and declarations, the fact that the landowner may have entertained a different intention from that manifested by his acts and declarations cannot prevail against the force of his conduct and acts upon which the public or those dealing with him have relied, pp. 106, 107.</p> <p>Instruction.— Highways.— Obstructions.— Damages to Abutting Owner. — In an action against a railroad company by an abutting owner for maintaining a switch in a public highway, an instruction that the jury might “take into consideration the injury to the property, if any, naturally resulting from building the switch, in rendering the same inconvenient of access, if it was so rendered, or in any manner causing the same to be less suitable for use, together with the increased danger from fire emitted from the locomotives, and the decreased rental value of the property, together with all the facts proven which show a natural and necessary decrease in the value of the property,” is erroneous where such abutting owner was not the owner in fee simple of any part of the highway, pp. 107, 109.</p> <p>Same. — Erroneous Instruction. — How Cured. — An erroneous instruction cannot be cured by giving an instruction excluding some of the elements included in such erroneous instruction, but must be withdrawn from the jury. p. 109.</p> <p>Same. — Inconsistent Instruction. — Where two or more instructions are inconsistent and calculated to mislead the jury, or leave them in doubt as to the law, it is cause for reversal, p. 109.</p> <p>Appeal and Error. — Bill of Exceptions. — Evidence.—When Not All in Record. — Where the bill of exceptions purporting to contain all of the evidence shows upon its face that it does not, this court will not consider the sufficiency of the evidence to sustain the verdict of the jury or the finding of the court, pp. 109, 110.</p> <p>Highways. — Obstructions.—Damages to Abutting Oioner. — The damages recoverable by an abutting landowner against a railroad company for maintaining a switch in a highway must be confined to the land described in the complaint and cannot include damages to another tract of land belonging to plaintiff in close proximity to the land described, p. 110.</p>

<p>Appeal and Error. — When Rulings on Demurrers May he Disregarded. — Questions on demurrers to pleadings may properly-be disregarded on appeal, where every phase thereof is presented on special findings and conclusions of law. p. US.</p> <p>Bills and Notes. — Waiver of Defenses on the Ground of Extension of Time of Payment. — A stipulation in a note payable in bank, that “the drawers and endorsers waive all defenses on the ground of any extension of time of payment,” does not take away its negotiability under sections 7515, Burns’ R. S. 1894, but does take away its character as commercial paper, under section 7520, Burns’ R. S. 1894. p. US.</p> <p>Same. — Endorsement.—Complaint.—Statutes Construed. — Where the character of a note as commercial paper, within the meaning of section 7520, Burns’ R. S. 1894, has been taken away by a stipulation that the drawers and endorsers waive all defenses on the ground of any extension of time of payment, a complaint thereon is insufficient as to an endorser in blank, where there is no allegation of the use of due diligence as is required by section 7518, Burns’ R. S. 1894. pp. US-115.</p> <p>Same.— Custody of Note Endorsed in Blank.— The rule that the custody of a note endorsed in blank is prima facie evidence of ownership does not apply to a note which does not possess the qualities of commercial paper, p. 115.</p> <p>Pleading. — Action for Corporation Cannot he Maintained in Name of Officer who is a Mere Agent. — The treasurer of a corporation, to whom a note has been transferred as a mere custodian of the corporation, is not a trustee of an express trust, within the meaning of section 252, Bums’ R. S. 1894, and, therefore, cannot maintain an action on the note in his own name. pp. 118-115.</p>

<p>Appeal and Error.— New Trial. — Record.—Presumption.—Where all that is shown by the record as to the filing of a motion for a new trial is that it was taken np and presented for the consideration of the court, the parties being present, it will be presumed on appeal that the motion was duly and properly filed, pp. 117, 118.</p> <p>Same. — Weight of Evidence. — Sufficiency of Evidence. — The weight of the evidence is for the trial court, but its sufficiency to sustain the findings of the trial court may be considered on appeal, p. 121.</p> <p>Reformation of Lease. — Mistake.—Sufficiency of Evidence. — In an action to reform a lease the evidence showed that the tenant of a certain storeroom, desiring to quit business procured defendant to take up the lease, to which plaintiff consented. Plaintiff drew up a contract by which the premises were leased to defendant for the unexpired term of the lease at a rental of §2,400.00 per year, it being agreed at the time that at the expiration of the lease defendant was to have the storeroom for an additional term at a fair and reasonable rental. The evidence further showed thaEa competitor of defendant desired the room and offered plaintiff more rent and a bonus; that plaintiff’s husband, acting as her agent, proposed to defendant to extend the lease for a term of five years, at §8,000.00 per year, and a bonus of §500.00; that after defendant had taken time to consider the proposition, and the matter had been further discussed, the plaintiff’s said husband drew up the lease which was for a term of seven years, at a rental of §2,000.00 for the first two years, and §8,000.00 for the last five and a bonus of §500.00; that a typewritten copy of the lease was made, and the plaintiff acknowledged them in duplicate, the original being recorded, and the copy delivered to defendant, at which time the defendant paid the §500.00 bonus; that when the first month’s rent became due, defendant, for the purpose of paying the rent, drew his check for §166.66, and plaintiff drew a receipt for §200.00, claiming that there had been a mistake in drawing the lease. Held, that the evidence was insufficient to show that there had been a mutual mistake in the execution of the lease, pp. II8-I84..</p> <p>Appeal and Error. —Vacation Entry by Clerk will be Disregarded on Appeal. — A statement in a transcript that a motion for a new trial was filed with the clerk in vacation is no part of the record, and will be disregarded on appeal, p. 186.</p>

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

<p>Drains. — Report of Reviewers. — Dismissal of Petition. — Costs.—Statute Construed. — Section 5694, Burns’ R. S. 1894, of the drainage law, providing for a hearing of the second report of the viewers by the board of county commissioners, authorizes such board to hear and determine the report of the apportionment according to the evidence, and if the evidence shows that the costs exceed the benefits they are not bound to confirm the report, but are required to dismiss the petition and proceedings at the cost of the petitioners, p. lip.</p> <p>Same.— Appeal. — Statute Construed.— In an appeal to the circuit court, under section 5695, Burns’’R. S. 1894, from the action of the £>oard of county commissioners in dismissing a drainage petition only matters specified in said section can be assigned as error, pp. tyl-lM-</p>

<p>Appeal and Error. — Demurrer not in Record. — Where a demurrer does not appear in the record, no question affecting the pleading to •which the demurrer was addressed can be considered on appeal. p. 146.</p> <p>Intoxicating Liquors. — Remonstrance.—Sufficiency Of. — Under section 9, of the act of March 11, 1895, providing for a remonstrance against the granting of a license, by the board of county commissioners, to an applicant for the sale of intoxicating liquors, it is not necessary that it be set forth in the body of the remonstrance that the remonstrators are legal voters, and constitute a majority of the legal voters of the township or ward as determined by the number of votes cast at the last preceding election, pp. Ufi-lJt8'.</p> <p>Same.— Remonstrance. — Pleading.—Since the only pleading authorized on behalf of the remonstrators against the granting of a license to sell intoxicating liquors is a remonstrance which must be filed with the board of county commissioners, it is not error to sustain a demurrer to an answer filed by the remonstrators after the case has been appealed to the circuit court, pp. 14s, 149.</p> <p>Board op County Commissioners. — Appeal From. — Appeals from a board of county commissioners to the circuit court stand for trial de novo, and suspend all proceedings had upon the questions in issue before the commissioners, which proceedings cannot be taken into consideration upon the trial in the circuit court, p. 149.</p>

<p>Taxation. — Funds of Nonresidents in the Hands of a Beceiver in This State. — The funds of an insolvent mutual benefit assessment society in the hands of a receiver in this State are subject to taxation in the county where they are kept on deposit by such receiver, although the funds had been collected in other states in which the company also did business, and turned over to the Indiana receiver by orders of their respective courts, and were to be distributed to claimants, many of whom vs ere nonresidents.</p>

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

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

<p>Elections. — City Officers. — General Elections. — Statute Construed.— Under the provision of section 3476, Burns’ R. S. 1894, general elections are held quadrennially, beginning on the first Tuesday in May, 1894, and the successor of a city treasurer elected at a special election after the incorporation of such city in 1894 could not be elected until the first Tuesday in May, 1898. p. 179.</p> <p>Appeal and Eeeoe. — Amendment of Pleading. — Presumption.— Where the record does not show a request to amend a pleading it will be presumed on appeal that leave to amend was not sought. p. ISO.</p>

<p>Criminal Law. — Appeals.—Appeals in criminal cases can only be taken from final judgments.</p>

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

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

<p>Practice . — Variance Between Allegations of Complaint and Proof.— A plaintiff must recover according to the allegations of his complaint, or not at all. He cannot recover on the evidence which makes a case materially different from the case made by the pleadings. p. 193.</p> <p>Carriers. — Injury to Passenger. — Contributory Negligence. — A passenger on a railroad train, in the night time, desiring to get off at a certain crossing where the train usually stopped, was informed by the conductor that he could get off, and was directed by the conductor to go upon the platform of the car when the train reached a certain point, and be ready to get off when the train arrived at the crossing. The passenger not only went upon the platform, but, while the train was going twelve or fifteen miles an hour, and at a point 1,600 feet from the crossing, went upon the lower step of the car, and, by a sudden jerk of the train, was thrown from the car and injured. Held, that the passenger was guilty of contributory negligence which precluded recovery, pp. 193-196.</p>

<p>Carriers. — Common Carriers May Contract as Private Carriers.— Exemption From Inability for Negligence by Contract. — Railway companies may contract as private carriers in transporting express matter for express companies, and in such capacity may require exemption from liability for negligence as a condition to the obligation to carry, pp. 199, 200.</p> <p>Master and Servant.— Exemption From Inability. — Express Company. — Notice to Servant. — An employe of an express company who goes upon the tracks of a railroad company in the course of his employment is chargeable with notice of a contract between the express company and the railroad company to the effect that the former will hold the latter harmless against claims by employes of the express company for negligence of the railroad company. pp. 208, 20A</p> <p>Same. — Release of Liability for Injuries Sustained by Servant. — A release by an employe of an express company of all liability for injuries sustained by the negligence of the employer “or otherwise,” includes the liability of the express company to hold a railroad company, with which it does business, harmless against claims by employes of the express company for injuries, and precludes an action against the railroad company for causing his death, by suddenly closing the opening between parts of a train while he was passing between them in discharge of his duty as employe of such express company, pp. 201/.-206.</p> <p>Appe'al and Error. — Motion to Modify Mandate. — A motion to modify a mandate is in the nature of a petition for a rehearing and may be filed during the time allowed for a rehearing, notwithstanding the other party has filed a waiver,' and the opinion has been certified to the court below, p. 207.</p> <p>Same. — Motion to Modify Mandate. — Judgment on Reversal. — Where a judgment is reversed on account of error of the court below in striking from answers certain contracts filed as exhibits thereof, the court will not sustain a motion to modify the opinion so as to give defendant a judgment instead of a new trial, p. 208.</p>

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

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

<p>Drains. — Assessment of Damages. — Intervening Petition by Landowner. — Statute Construed. — An intervening petition, seeking an allowance for damages resulting from the construction of a drain, filed nearly three years after such drain had been established, and nearly two years after the drainage commissioner had reported that the drain was partially completed, is properly stricken from the files, under the provisions of section 5625, Burns’ R. S. 1894, where it is shown that such petitioner was duly notified of the proceedings at the time the drain was established, pp. 225-229.</p> <p>Samé. — Remonstrance.—One who fails to remonstrate against the construction of a drain, as provided by section 5625, Burns’ R. S. 1894, is as much barred by the judgment as if he had remonstrated and been defeated, p. 229.</p>

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

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

<p>Pleading. — Complaint.—Negligence.— Railroad Crossings.— In an action for personal injuries, based upon the negligence of defendant, the fact that a particular act of negligence prohibited by statute is included in the acts constituting the negligence does not confine and limit the theory of the complaint to the statutory offense charged, pp. 270, 271.</p> <p>Same. — Complaint.—Railroad Crossings.- Violation of Statute. — In an action for personal injuries against a railroad company, based upon the negligence of such company, in violating section 2293, Burns’ R. S. 1894 (2172, R. S. 1881), prescribing a penalty for a train to approach the crossing of another railroad track without stopping and ascertaining that there is no other train or locomotive in sight, need not negative the exception provided by section 5156, Bums’ R. S. 1894, where there is a system of interlocking automatic signals, pp. 271, 272.</p> <p>Same. — Negligence.—Breach of Statutory Duty. — Where a breach of a statutory duty is alleged, and exceptions are found in the statutory declaration of duty, the pleader must show that the breach is not included in the exception. But if the exception is stated in a subsequent clause or section of the statute, or if it is declared in another statute, then such exception should be shown by way of defense to the action, p. 272.</p> <p>Same. — Complaint.—Answer.—Where a complaint discloses a prima facie cause of action under a statute, it is for the defendant, by way of answer, to show that the plaintiff should not recover, notwithstanding the allegations of the complaint, p. 272.</p> <p>Evidence. — Introduction of Pleading Filed by Adverse Party. — A party who introduces in evidence a pleading filed by the adverse party, but subsequently withdrawn, may explain and rebut portions thereof which are unfavorable to him. pp. 274, W6.</p> <p>Railroad Crossings. — Signal Lights. — The fact that signal lights, in a railroad crossing signal system, were obscured from view by a car standing across defendant’s track did not excuse defendant company from the duty of stopping its trains to ascertain whether or not the crossing was clear, p. 275.</p> <p>Same. — Obstruction of Signal Lights.- — That the view of the crossings of two railroads, and of the signals designed to warn a train on one track of the presence of a train on the other was obscured by an ' electric light maintained by the city will not relieve the company from liability for a collision between a train standing upon the crossing and another train approaching on the other track, as it is bound to exercise care commensurate with the surroundings, pp. 275, 276.</p> <p>Same. — Duty of Managers of Train Approaching a Crossing. — When means are not provided by which a collision at a railroad crossing is rendered impossible, the rule to stop, look, and listen is not less imperative on a train approaching & crossing of another railroad than upon a traveler about to approach a railroad crossing, p. 277,</p> <p>Evidence. — nonexpert.—Opinion.—A nonexpert witness who has observed the condition of a person may express his opinion as to whether such person was sick or not, where it is impossible for such witness to present to the jury all of the facts upon which the-opinion is based, pp. 277, 278.</p> <p>Same. — As to Faming Capacity of Plaintiff as a Physician. — Damages. — Evidence as to plaintiff’s earning capacity as a physician is admissible in an action for personal injuries, as a means of enabling the jury to arrive at the proper measure of damages, p. 278.'</p>

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

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

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

<p>Descent and Distribution. — Widow’s Share of Real Estate. — Mortgage. — Where a widow’s interest in the real estate of her deceased husband is sold and conveyed to pay her husband’s debts secured by a mortgage thereon, she is entitled to be reimbursed for the full value of her share therein out of other assets of the estate, real or personal, if any, and such claim is preferred and must be paid before the claims of general creditors, pp. 288-292. ■</p> <p>Executors and Administrators. — Modification of, Judgment. — Practice. — An administrator cannot object to the judgment entered in favor of the widow upon her cross-complaint in a proceeding instituted by the administrator to sell the real estate to pay the debts of the decedent, where the modification proposed does not affect the finding of the court that the land was not subject to sale by him. p. 293.</p>

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

<p>Wills. — Name of Beneficiary. — It is not essentially necessary that the testator, in his will, name the legatee or devisee, in order to give effect to the bequest; it is sufficient if the beneficiary is so described therein as to be ascertained and identified, p. 301.</p> <p>Same. — When Beneficiary Not Named in Will. — Parol Evidence.— Where a testatrix devised all of her property to whoever should, at her request, take care of her, providing that the person so selected should have a written statement to that effect, signed by the testatrix, such will is not invalid on account of failure to name a devisee, and a letter written by testatrix to her granddaughter after the execution of the will, telling her that she was sick and requesting her to come and take care of her, informing her that she had made her will and that it was her desire that she should have all of her estate, was admissible in evidence for the purpose of identifying the devisee, pp. 298-305.</p>

<p>Appeal. — Assignment of Error. — Mandamus.—On appeal from an order directing the issue of a peremptory writ of mandate, an assignment that the court erred in overruling the demurrer to the “complaint,” cannot be considered, where the demurrer was addressed to the alternative writ, and not to the complaint or petition, and the alternative writ is not in the transcript, p. 307.</p> <p>Same. — Assignment of Error. — Mandamus.—On appeal from an order directing the issue of a peremptory writ of mandate, a demurrer to the answer and return of an alternative writ cannot be considered where the alternative writ is not in the record, p. 307.</p> <p>Same. — Mandamus.—Where a peremptory writ of mandate has been ordered by the trial court against a justice of the peace, in his official capacity, assignments of error cannot be considered on appeal where they merely present causes of error on behalf of the appellant as an individual, p. SOS.</p>

<p>Practice.— Special Verdict. — A party who makes no demand for a special verdict cannot complain that the demand therefor by the opposite party was not complied with. pp. 309, 310.</p> <p>Evidence. — Harmless Error. — In an action against a railroad company for personal injuries, the refusal of the trial court to admit in evidence an ordinance prohibiting trains from running faster than four miles an hour, was harmless error, where the plaintiff wholly failed to establish her own freedom from negligence contributing to her injury, p. 310.</p> <p>Practice. — Negligence.—When Court May Direct Verdict. — In an action for personal injury, based upon the negligence of defendant, plaintiff must aver and prove his freedom from contributory negligence proximately causing his injury, and upon failure of such proof it is the duty of the trial court to instruct the jury to find against him, even though he establish all other essential facts of his cause of action, pp. 310, 311.</p> <p>Contributory Negligence. — Railroad Crossing. — Where a person, attempting to cross several railroad tracks, saw a-train coming, and turning back to avoid such train, saw a train coming from the opposite direction on another track which she thought she could pass over before it would reach her, and was struck by such latter train, and was injured, she was guilty of such negligence contributing to her injury in attempting to cross said last track, as to preclude a recovery, pp. 311, 212.</p>

<p>Drains. — Change of Line by Agreement. — Objections.—When the line of a ditch, established by the board of commissioners under sections 5655-5688, Burns’ R. S. 1894, is changed on the lands of any one or more persons by agreement of the county surveyor, those owning land on the line of said ditch above where the change was made cannot successfully ask for equitable relief, unless the change in some way interferes with the drainage of their lands, p. 815.</p> <p>Same. — Construction.—Order of Sale of Allotments. — Objection.— Under the provision of section 5673, Burns’ R. S. 1894, of the drainage law, that any job not completed within the time fixed in the .final report of the viewers, shall be sold for construction by the auditor, but that he shall not sell any allotment until the section immediately below shall have been completed, only those whose allotments were sold before the section below was completed have any right to object to such sale. p. 816.</p>

<p>Appeal and Error. — Answers to Interrogatories. — Overruling Motion for New Trial. — Harmless Error. — Error cannot be predicated upon the action of the court in not requiring the jury to return more definite answers to three interrogatories where answers to other interrogatories were such as to prevent a recovery by the camplaining party, pp. 317, 318.</p> <p>Master and Servant. — Damages for Death of Servant. — Defective Appliances. — Knowledge of Danger. — A recovery cannot be had for the death of a servant, caused by defective appliances furnished by the master, where it is shown that the servant had equal, if not better opportunities of knowing the condition of such appliances . than the master, pp. 318, 319.</p>

<p>Special Findings. — Sufficiency Of. — Presumptions.—Presumptions or intendments are not available to support a special finding, but the facts in issue must be stated with reasonable certainty, p. 323.</p> <p>Same .— Sufficiency Of. — Presumptions.—Liens.— Where judgment creditors claim that the lien of their judgments are superior to the lien of a mortgage, and the special finding in the case does not disclose in what county or court such judgments were rendered, the Supreme Court will not presume on appeal that the judgments were rendered in the county in which the real estate is situated, and hold same to be liens on such real estate, under section 617, Burns’ R. S. 1894 (608, R. S. 1881). p. 323.</p> <p>Execution Sales. — Sheriff’s Certificate. — A certificate of purchase, to lands sold at an execution sale, will not pass title to the real estate where no deed has been executed after the lapse of the year allowed for redemption, pp, 323, 324.</p>

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

<p>Drainage. — Sale of Allotment, for Construction, by Auditor. — Presumption. — Where a county auditor, pursuant to section 5673, Bums’ R. S. 1894, proceeds to sell, for construction, an allotment on a ditch established by the board of county commissioners, it will be presumed that such auditor has discharged his duty in every way under the drainage law. p. SSI.</p> <p>Same.' — Sale of Allotment, for Construction, by Auditor. — Injunction. —Complaint.—In an action to enjoin a county auditor from selling, for construction, an allotment on a ditch, on the ground that the section of the ditch immediately below has not been completed, the complaint must allege facts showing that such section has not been completed according to the specifications of the report upon which the ditch was established; an allegation that the sections of the ditch below the allotment “have not been constructed and completed as the law required they should be,” is a mere conclusion. p. 331.</p>

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

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

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

<p>_ Election Contests. — Ineligibility.—Bribery.—Evidence. —-Constitution Construed. — Under the provision of section 6, article 2, of the State constitution that “Every person shall be disqualified for holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat or reward to secure his election,” evidence that contestee offered to purchase the vote of witness at the general election at which he was a candidate was admissible in the trial of an election contest on the ground of ineligibility of contestee. pp. 864, 865.</p> <p>Constitutional Law. — Section 6, article 2, of the state constitution declaring persons elected to office disqualified from holding same by offering a bribe or reward to secure his election is self-executing and needs no legislative enactment to carry it into effect and operation. p. 864.</p>

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

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

<p>Decedents’ Estates. — Appeal.—How Perfected. — An appeal by the administrator of a decedent’s estate cannot be prosecuted under the code governing appeals in general, but must be taken under the statute regulating the settlement of decedents’ estates, sections 2609, 2610, Bums’ R. S. 1894 (2464, 2455, R. S. 1881), which provide that the appeal bond shall be filed within ten days after the decision complained of is made, unless the time is extended by the court to which the appeal is taken, and that the transcript shall be filed in this court within thirty days after filing the bond.</p>

<p>Drains. — Sewerage.—Statute Construed.— The word “drainage” as used in section 3598, Burns’ R. S. 1894 (Acts 1891, p. 304), providing for the drainage of cities, includes sewerage, pp. 380-882.</p> <p>Same. — Sewerage.—Practice.—Statute Construed. — When a petition for drainage is filed in the circuit court, under the provision of section 3598, Bums’ R. S. 1894 (Acts 1891, p. 304), the only question to be tried is the amount of benefits or damages to the landowners outside the city limits, provided such issue is properly presented by remonstrance. p. 882.</p> <p>Same. — Viewers.—Objections to. — When Waived. — In a proceeding to construct a city drain, under section 3598, Burns’ R. S. 1894 (Acts 1891, p. 304), the failure of an interested party to appear and object to the committee appointed to assess the benefits and damages until after the committee had reported the benefits and damages to the common council, and such petition had been docketed in the circuit court, constitutes a waiver of the right to object.- pp. 883, 38j.</p>

<p>Special Findings. — Habeas Corpus. — Statute Construed. — Section 560, Burns’ R. S. 1894 (551, R. S. 1881), providing that the court shall, at the request of either party, make a special finding of the facts and state the conclusions of law thereon, does not apply to habeas corpus proceedings, p, 385.</p> <p>Habeas Corpus. — Motion to Quash. — Practice.—Overruling a motion . to quash a writ of habeas corpus tests the sufficiency of the application for such writ. p. 385.</p> <p>Parent and Child. — Custody of Child. — In a controversy for the custody of a child, whether between the father and mother, or between them, or either of them and third persons, the welfare of the child is paramount to the claims of either parent, and the order of court should in all such cases be made with regard alone to the best interests of the child, p. 388.</p> <p>Habeas Corpus. — Motion to Quash. — The motion to quash a writ of habeas corpus admits the truth of the allegations in the writ the same as does a demurrer to a pleading, p. 388.</p>

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

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

<p>Nuisance. — When a Business Will he Enjoined as. — A business which is a nuisance per se, as also one that is so conducted as to become an actual nuisance, will be enjoined; but a business which merely threatens to become a nuisance, will be enjoined only where the court is satisfied that the threatened nuisance is inevitable, p. 418. Same. — Natural Gas. — A gas well sunk to supply fuel for a manufacturing plant is not per se a nuisance, p. 481.</p> <p>Natural Gas.— Drilling Well Near Dwelling. — Injunction.— The drilling of a gas well within 152 feet of a dwelling house will not be enjoined on account of the noise, pollution of the-air, danger from fire or explosion that would result from operating the well, or on account of_ water or oil from the well, where it is not shown with certainty that water, oil, or gas will be found, and it is not shown that the gas well could not be operated in such a manner as to avoid the injuries apprehended, pp. 488, 483.</p>

<p>County. — Appointment of Attorney by Superior Court.— Statute Construed. — It is not within the power of a superior court, under section 1481, Bums’ B. S. 1894 (1415, B. S. 1881), authorizing the courts of record to allow sums to persons performing services under the orders of the court, to bind the county to pay for the services of an attorney appointed by such court to defend an action brought in the circuit court of the same county to test the constitutionality of the law creating the superior court, pp. 4%7, 428.</p> <p>Same.— Treasurer.— Employment of Counsel. — A county is not required to employ or pay counsel to defend its treasurer in an action brought to enjoin the payment of a warrant issued by the county auditor, p. 428.</p>

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

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

<p>Fraudulent Conveyances.— When Property Conveyed is Exempt from Execution. — A conveyance of real estate cannot be set aside by creditors of grantor as fraudulent -which if retained would be within the debtor’s right of exemption, pp. 437, 438.</p> <p>Evidence. — Admissibility.—Fraudulent Conveyances. — In an action to set aside a conveyance as fraudulent, evidence supporting the right to exempt the property conveyed, at the time of the conveyance, repels the charge of fraud, and is admissible without a special . plea setting up* such right, pp. 438', 489.</p> <p>Fraudulent Conveyances. — Interest of Wife not a Subject of. — The interest of the wife in the husband’s real estate is not, as to the husband’s creditors, the subject of fraudulent conveyance, p. 439.</p>

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

<p>Notice. — Records of Deeds and Mortgages. — The recording of deeds and mortgages is notice to subsequent purchasers and incumbrancers only p. J^51.</p> <p>Mortgages. — To Secure Advancements. — Where the mortgagee has hound himself to make or incur liabilities by advancing money to the mortgagor from time to time, such advancements, when made, relate back, and the mortgage will be a valid lien for the advancements made as against a subsequent purchaser or incumbrancer with notice, actual or constructive, of the mortgage, pp. 451, 452.</p> <p>Same. — Foreclosure.—Subsequent Mortgage. — When it is shown by-complaint or cross-complaint to foreclose a mortgage that any of the defendants are subsequent mortgagees, it must be alleged and proven that they took such subsequent mortgage with actual notice of the mortgage sued on, or that it was recorded within the time fixed by statute, or before the execution of the subsequent mortgage, p. 455.</p> <p>Pleading. — Cross-Complaint.—A cross-complaint must be sufficient within itself, without aid from any other pleadings in the case ; yet for matters of mere description and identification many of the allegations of the complaint may be referred to. p. 456.</p> <p>Mortgages. — Not Recorded Within Forty-five Days. — Subsequent Mortgage. — Statute Consisted. — Under section 3350, Burns’ R. S. 1894, a mortgage not recorded within forty-five days from the time of its execution is fraudulent and void as against a subsequent mortgage taken in good faith and for a valuable consideration. p. 457.</p> <p>Appeal. — Weight of Evidence. — The Supreme Court will not weigh the evidence and pass upon the conflicts thereof, p. 457.</p>

<p>Master and Servant. — Assumption of Rislc. — Promise to Repair.— Where a servant, by reason of the promise of the master to make repairs, continues in the service after notice of a defect in tools or machinery augmenting the danger of the service, the servant may recover for an injury .caused by such defect within such period of time after the promise to repair as would be reasonable to allow for such repairs to be made ; but when such promise to repair is not general, but dependent upon the completion of a certain job of work, the servant cannot recover for an injury received by reason of such defect before the completion of suck job of work. pp. 464^466.</p> <p>Negligence. — Master and Servant. — Negligence cannot be imputed to the master for failure to foresee and guard against a danger which is wholly improbable, p. 466.</p>

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

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

<p>Wills. — Construction.—Advancements.—Where a testator provides in his will that in the event of the death of one of the beneficiaries therein named before arriving at the age of twenty-one, that his property shall descend the same as if no will had been made, upon the death of such beneficiary, testator’s property will descend in same manner as though he had died intestate, and advancements made by testator will be taken into account in the division of such estate.</p>

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

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

<p>, Appeal and Error. — Bill of Exceptions. — When the transcript shows the filing of a completed bill, within the time required, it will be inferred.that the bill was properly signed by the judge prior to the filing thereof, pp. 519, 520.</p> <p>Criminal Law. — Evidence Musi Support the Conclusion of Quilt. — It is the duty of the court, before sustaining a conviction for a crime, to find evidence supporting the conclusion of guilt. It is not enough that evidence merely tends to support such conclusions, p. 521.</p> <p>Larceny. — Evidence.—A conviction for larceny is not sustained by evidence that a person with whom defendant had been tramping, and with whom he entered a store, stole a suit of clothes, while defendant was looking at clothing in another part of the store, defendant manifesting no surprise upon the arrest of both, immediately upon leaving the store, pp. 520, 521.</p>

<p>Larceny. — Identification of Stolen Property. — A watch and chain, the stealing of which is charged, are sufficiently identified, where the prosecuting witness testified that the watch found in defendant’s possession was exactly like his watch, and positively identified the chaino attached thereto as the chain attached to his watch at the time it was stolen, p. 523.</p> <p>Criminal Law. — Possession of Stolen Goods. — Evidence.—When it is proven that property has been stolen, and the same property, recently after the larceny, is found in the exclusive possession of another, the law imposes upon such person the burden of accounting for his possession, and of showing that such possession was innocently acquired; and if he fails so to account satisfactorily for such . possession, or gives a false account, the presumption arises that he is the thief, p. 524.</p> <p>Same. — Possession of Stolen Property. — Evidence.—Where the identity of property described in an indictment for larceny is in dispute, evidence is admissible to show that the defendant, at the .. time of his^rrest, had in his possession other stolen property, pp. 524-526.</p>

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

<p>From tlie Fulton Circuit Court:</p>

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

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

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

<p>Appeal and Error. — Assignment of Error. — Separate Assignments by Different Appellants Under One Title. — Separate assignments of error may be made by each appellant to an appeal from a joint judgment under one title, pp. BBS, BBfy.</p> <p>Assignment for Benefit of Creditors. — Sales.-—Failure to Report to Court. — A purchaser of property from an assignee for creditors cannot interpose as a defense to an action by such assignee for the collection of notes given in payment for such property the failure of the assignee to report the sale to the court, without alleging an offer to return the property, pp. 554, 555.</p> <p>Pleading. — Answer.—Where an answer purports to be a bar or defense to the entire cause of action stated in the complaint, and in fact answers only a part of it, such answer is bad on demurrer for want of sufficient facts to constitute a defense, pp. 556, 557.</p>

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

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

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

<p>From the Cáss Circuit Court.</p>

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

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

<p>Injunction. — Judgments.—Collateral Attack. — A proceeding to enjoin the enforcement of a judgment or decree by execution or de- ■ cretal order is a collateral attack upon the judgment, and cannot maintained for mere irregularities, but only by showing that the judgment or decree, or the part thereof, the enforcement of which is sought to be enjoined, is void. p. 607. .</p> <p>Judgments. — Presumptions as to Validity. — Complaint to Enjoin Enforcement Of. — It will be presumed on appeal that a judgment rendered by a court of general jurisdiction is valid, and a complaint in an action to enjoin the enforcement thereof to be sufficient against a demurrer, must overcome or exclude such presumption. • p. 608.</p> <p>Same. — Complaint to Enjoin Enforcement Of. — Sufficiency.—A complaint by the wife of a judgment debtor to enjoin the enforcement of a judgment and decree ordering the foreclosure of a mortgage and the sale of real estate of which her husband was the owner in fee simple, and directing that the proceeds of such sale, after the satisfaction of such mortgage, be applied to the payment of certain judgments, for the reason as alleged in her complaint that she was not made a party to any cross-complaint by any co-defendant in ' such proceeding, is insufficient where it is not alleged by whom the action in which such decree was rendered was begun, or that such part of the decree assailed was rendered upon a cross-complaint. pp. 608, 609.</p> <p>Pleading. — Complaint.—Action to Enjoin Enforcement of Judgment. —Sufficiency.—A. complaint in an action to enjoin the enforcement of a judgment, must allege what the record of the case in which the decree was rendered shows on the subject, p. 609.</p> <p>Same. — Facts, not conclusions, should be stated in pleadings, p. 610.</p>

<p>Criminal Law. — Use of Stenographer Before Grand Jury. — When Will Not Abate an Indictment. — The presence of a stenographer in the grand jury room, at the request of the prosecuting attorney, and the taking down in shorthand for the use of the prosecution, the evidence upon which an indictment was returned, is not sufficient to abate the indictment, without some showing that the accused was injuriously affected thereby.</p>

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

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

<p>Cbiminal Law. — Officer Interested in Public Contract. — Indictment. —Statute Construed. — An indictment under section 2136, Bums’ R. S. 1894, which charges that defendant, while councilman, became interested as joint subcontractor, in the improvement of certain streets in such city without showing that the street improvement had been let to any person, or that defendant entered into or became interested in any manner, in any contract with the city, is not applicable to such statute, and fails to charge a public offense. pp. 621-624-</p> <p>Same. — Indictment.—An indictment must state by direct averments facts constituting the offense as defined by statute, and such a degree of certainty must be shown by its averments as to fully inform the accused of the charge preferred, and the court and jury of the crime of which, upon the trial, he is to be convicted or acquitted. pp. 624, 625.</p>

<p>Partition. — Wife of Co-Tenant Not a Necessary Party. — In a partition suit between co-tenants a wife of one of the co-tenants is not a necessary party; and in the event of a partition sale of real estate in a proceeding wherein such wife was not made a party, she is bound by such proceedings and sale, though she outlives her husband and becomes his surviving widow; for the inchoate right of the wife to one-third of her husband’s land, subsists by virtue of the seizin of the husband, and is always subject to any incumbrance, infirmity, or incident which the law attaches to the seizin either at the time"of the marriage or at the time the husband becomes seized; and a liability to be divested by a partition sale is an incident which the law affixes to all estates of co-tenancy. ></p>

<p>Elections. — Name of Candidate May Appear More than Onee on Ballot. —Election Commissioners. —Mandate.—Statute Construed. — Under the provision of sections 18 and 26 of the election law of 1889, as amended by the act of 1891, sections 6215, 6222, Burns’ R. S. 1894, the board of election commissioners may be required by mandate to print on the official ballot, under the emblem of each party respectively, the names of candidates properly certified to them by two political parties as provided in such acts, notwithstanding the same list of candidates is certified by both political parties, pp. 677, 678.</p> <p>Statutory Construction. — Where any provision of an act is invalid it may be stricken out, but courts have otherwise no right to add to or take from the law as it is written, or to extend the meaning of the law beyond that which is written, when the meaning is clear, pp. 678, 679.</p> <p>Same. — Questions of Policy and Political Morals. — The courts in the ‘ construction of statutes have nothing to do with questions of policy and political morals; such questions are matters for the consideration of the legislature, p. 679.</p> <p>Elections. — Board of Election Commissioners. — The board of election commissioners is not a tribunal set up for the trial of any abuses that may occur in the nomination of candidates, but mus£ print the tickets as certified to by the proper parties, p. 680.</p> <p>Practice. — Sustaining Demurrer to Special Answer. — Harmless Error. —No error was committed in sustaining a demurrer to a special answer where the same evidence was admissible under the general denial, nor was such ruling rendered harmful by the subsequent withdrawal of the general denial, p. 680.</p>

<p>Practice. — Motion to Strike Out a Motion. — There is no error in refusing to entertain a motion to strike out a motion.</p> <p>Appeal and Error. — Motion to Correct Record. — A motion to correct the record of a judgment by a nunc pro tunc entry is not a part of the record unless made so by bill of exceptions or by an order of court.</p> <p>Same. — Practice.—Hearing Motion to Correct a Record, Nota Trial.— The hearing of a motion to correct the record of a judgment by a nunc pro tunc entry is not a trial, and the code of civil procedure does not contemplate a new trial of such motion; the proper practice is to except to the action of the court in refusing or making the amendment, and on appeal assign such action of the trial court for error.</p>

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

<p>Municipal Corporations. — Improvement of Street. — Preliminary Order. — The preliminary order by resolution declaring a necessity for the improvement of a street, as provided by section 4289, Burns’ R. S. 1894, is not essential to the jurisdiction of the common council of a city. pp. 693, 694.</p> <p>Same. — Foreclosure of Assessment Lien. — Indebtedness of City Beyond Constitutional Limit. — In an action by a contractor against a property owner for the foreclosure of a street assessment lien, the question as to whether or not the city, at the date of entering into the contract for the improvement, was indebted beyond the constitutional limit, and did not have pioney in its treasury sufficient to pay its part of the cost thereof, cannot arise, p. 694.</p> <p>Appeal. — A Statutory Right. — The right to an appeal being purely statutory, the legislature has the authority to make the decision of municipal officers final and conclusive, p. 695.</p>

<p>Cbiminal Law. — Indictment.— Repugnancy. — Murder.— An indictment charging that defendant with a revolver and some other instrument, to the grand jurors unknown, both shot, cut, struck, and bruised deceased, thereby inflicting mortal wounds from which he instantly died, is not bad for' repugnancy, and does not charge two offenses, pp. 697, 698.</p> <p>Instructions. — Criminal Law. — Reasonable Doubt. — ■ Statute Construed. — There is no distinction in the application of the rule of reasonable doubt, as provided in section 1893, Burns’ R. S. 1894, as to cases of positive or circumstantial evidence, pp. 698, 699.</p> <p>Same. — Must be Considered Together. — All of the instructions given in a cause must be considered together, and incomplete instructions may be completed and omissions therein supplied by subsequent instructions given, p. 699.</p> <p>Same. — Inaccuracy of Language. — Criminal Law. — A cause will not be reversed on appeal on account of the use of the word “murder,” in an instruction to the jury defining the degrees of homicide, instead of the word “homicide” where no injury is shown to have resulted therefrom, pp. 699, 700.</p> <p>Same. — Criminal Law. — Must be as to Law and not as to Facts. — Con. stitution Construed. — Under the provision of section 19, article 1, of the constitution that “In all criminal cases whatever, the jury shall have the right to determine the law and the facts,” the province of the court in the trial of a criminal cause is to advise the jury in matters of law only, and it is error to instruct upon the weight of the evidence or the ultimate conclusions from primary facts, or the evidence of such facts, pp. 700-704.</p> <p>Same. — Erroneous Instruction not Cured by Contradictory Instruction. — Where the court in the trial of a criminal cause instructed the jury as to the weight of the evidence and conclusions to be drawn from primary evidence, such error is not cured by the giving of another instruction, informing them that they were the exclusive judges of the law and the facts in the case. p. 704.</p> <p>Same. — Erroneous Instruction. — When not Cured by Verdict. — Where the court in the trial of a criminal cause by an instruction invaded the right of the accused to have submitted to the jury disputed questions of fact involving essential elements of his casé, such error will not be held harmless on the ground that the verdict was right upon the evidence, p. 704.</p>

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