Volume 149 — Indiana Reports

<p>Trust Deeds. — Revocation.—Where a son twenty-two years of age having no business capacity or business experience, intemperate in habits and easily influenced, conveyed to his father, a man of great ability and force of character, his entire estate, valued at $50,000.00, in trust, and at the death of such son to descend to his legal representatives, for a nominal consideration of $600.00, which was never in fact paid, the understanding between the father and son at the time being that such conveyance should only be temporary, such deed being so unconscionable and so impressed with undue influence could not be upheld in equity, and a reconveyance of the property by the father to the son was an act which equity and good conscience required, and the legal representatives of the son at his death had no title to such lands which he had conveyed to bona fide purchasers after such reconveyance, pp. 2-9.</p> <p>Evidence. — Quieting Title. — Declarations Made at Time of Conveyance. — In an action to quiet title to real estate declarations made as a part of the negotiations leading up to a reconveyance of the real estate by a trustee were admissible as tending to show the reason why the deed of reconveyance was executed, pp. 9, 10.</p> <p>Same. — Waiver of Objections. — Where a party in the trial of an action to quiet title to real estate introduces declarations made by the grantor relative thereto, after the execution of such deed, he cannot complain of the introduction in evidence by his adversary of-declarations made by the parties at the time of the execution thereof, p. 10.</p>

<p>Pleading. — Variance.—When the allegations of a pleading vary from the provisions of the instrument upon which it is founded, the provisions of such instrument control, and such allegations will be disregarded, p. 1J¡..</p> <p>Husband and Wife. — Contract of Suretyship. — Building and Loan Association.— Mortgage. — Foreclosure. — Where a mortgage executed by a husband and wife on real estate held by them as tenants by entireties to a building association, conditioned that if the husband, who was a member of such association, and the holder of two shares of stock therein, upon which had been advanced to him the sum of §1,000.00, would pay to said association certain stipulated sums per week, until the dues paid should equal the amount advanced, or until the dissolution of such company, then such obligation should be void, such mortgage did not secure the repayment of the money advanced, but only secured the payment of the weekly dues, interest, premiums, fines, and assessments, as therein specified, of the husband as a member of such association, and such mortgage was, as to the wife, a contract of suretyship, and void under the provisions of section 6964, Bums’ E. S. 1894 (5119, E. S. 1881). pp. 11-17.</p>

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

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

<p>Master and Servant. — Personal Injuries, — Fellow Servant. — Vice Principal. — Where servants of a railroad company were engaged in placing a driving spring in a locomotive, and in doing so one of them, in order to force such spring into the saddle, struck same with a heavy iron, the foreman holding a torch that the blow might fall in the right place, thereby forcing the spring into place with such force as to throw a lever, bar and cold chisel, which were held by other servants in assisting to force the spring in place, and strike and kill one of such servants, the company is not liable, as the participation in the work by the company’s foreman was as that of a fellow servant and not as a vice principal.</p>

<p>Injunction. — Condemnation Proceedings. — Notice.—Opening Street. —Statute Construed.— An injunction will lie to prevent the taking of land by a city for a street, under sections 3623, 3629 et seq., Burns’ E. S. 1894, where the owner thereof had no notice of the condemnation proceedings, and was not made a party thereto, notwithstandingthe provisions of sections 3636 and 3644, Burns’ R. S., 1894, for assessment and payment of damages -which have not been assessed to persons who have had no notice of such proceedings, and providing that no injunction shall lie to restrain such proceedings unless property is sought to be appropriated upon which damages have been assessed and' not paid or tendered.</p>

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

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

<p>Criminal Law. — Reenactment of Statute Not a Repeal of Statute.— An amendatory statute, defining an offense and fixing the penalty for violation thereof in substantially the same language as that employed in the statute it amends, is not a repeal but a reenactment of the statute, and does not deprive the State of the right to prosecute for an offense committed before the act became effective.</p>

<p>Criminal Law. — Appeal.—Imperfect Record. — Where the record does not contain the affidavit and information upon which the prosecution of appellant was based, the Supreme Court will not consider an alleged error of the trial court in the admission of evidence tending to prove other and different crimes than the one charged.</p>

<p>Wills. — Devise of Real Estate. — Remainder.—The law not only favors the vesting of remainders, but presumes that the words postponing the enjoyment of the estate relate to the beginning of the enjoyment of the remainder, and not to the vesting of such estate. p. 53.</p> <p>Same. — Devise to One and His Children. — Common Law Rule. — At common law a devise to one and his children carried an estate in joint tenancy when the person named had children living at the time of the devise, but when no. such children existed, the term, children, was construed as a word of limitation and as equivalent to issue or heirs of his body, and the parent took an estate tail. p. 53.</p> <p>Same. — Devise.—Contingent Remainder. — Heirs.—When a devise is to a person and his issue, or to him and the heirs of his body, and is followed by a limitation over in case of his dying without leaving issue at his death, the only effect of these words is to make the remainder contingent on the prescribed event, p. 5fy.</p> <p>Same.' — Devise.—Remainder.—Statute of 1843. — Under sections 56-74, R. S. 1843, what was an estate tail at common law is declared an estate in fee simple; yet, by express provision of the statute, a remainder may be limited thereon the same as an estate tail at common law. pp. 55, 56.</p> <p>Same. — Devise.—Remainder.—Constmiction.—Where real estate is devised in fee, simple to one, with a devise over if the first taker should die without issue living at the time of his death, the words refer to a death without issue during the lifetime of the testator, unless there is an express or an implied intention to the contrary. p. 56.</p> <p>Same. — Construction.—No word or clause in a will is to be rejected to which a reasonable effect can be given, and that effect must be given to every part of a will if possible, p. 57.</p>

<p>Corporations. — Liability of Stockholders. — When a stockholder of a corporation has paid the full par value of his stock, his liability is terminated, and in the absence of a statute imposing upon him an additional liability, he cannot be compelled to respond to the corporation nor to its creditors in payment of any debts except in cases where there has been a failure to duly incorporate. . pp. 60, 61.</p> <p>Receivers. — Action Against Stockholders of a Corporation to Collect Unpaid Assessments. — Jurisdiction.—Where the stockholders of a corporation have failed to pay assessments due from them on their respective shares of the capital stock, a receiver of such corporation may join all the defendants in one action, though they may not all reside in the jurisdiction where the suit is instituted, pp. 61-63.</p> <p>Same. — Action Against Stockholders of a Corporation to Collect Unpaid Assessments Must Be Authorized by Court. — A complaint by a receiver of a corporation against the stockholders to collect unpaid assessments or calls due oh their respective shares of stock must allege that the receiver was authorized by the court to institute the action, p. 63.</p>

<p>Municipal Corporations. — Sidewalks.—Negligence.—A city or incorporated town is liable for the negligence of its officers in the construction or repair of sidewalks, pp. 66, 67.</p> <p>Special Verdict. — Conclusions of Law. — Conclusions of law in a special verdict must be disregarded by the court in rendering judgment thereon, p. 69.</p> <p>Same. — Contributory Negligence — The findings of a special verdict in an action against a town for an injury received in passing over a board sidewalk which show that plaintiff had frequently passed over such sidewalk and knew that it was old, that the boards were loose and that the sidewalk was dangerous to pass over; that plaintiff passed over same in the night time with his hands in his pockets, with full knowledge that some of the boards were loose and liable to trip a passenger; that he could have safely and conveniently gone home by a different route, and that after receiving the injury there was no evidence that he was actually trying to avoid anticipated danger by reason of said sidewalk being out of repair, fail to to establish affirmatively that plaintiff was exercising ordinary care for his own safety when he was injitred, and that he was free from contributory fault or negligence, pp. 69-71.</p> <p>Same. — Contributory Negligence. — A finding in a special verdict in an action against a town for damages for injuries received on a defective sidewalk that plaintiff was walking slowly and carefully will not warrant the legal conclusion that plaintiff was free from contributory fault, pp. 71-7¿t.</p>

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

<p>Appeal and Error. — Failure to Except to the Appointment of Receiver. — Waiver.—The failure of a party to except to the action of the trial court in the appointment of a receiver is a waiver of any question upon such appointment, pp. 79, 80.</p> <p>Same. — Appointment of Receiver. — When Not Reviewed on Appeal.— Where the record does not contain the affidavits upon which the question of the appointment of a receiver was submitted to the trial court, the question will not be reviewed on appeal, p. 80.</p>

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

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

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

<p>Drains. — Injunction.—For the purpose of preventing threatened injury to land and avoiding a multiplicity of damage suits therefor, one may be restrained from flooding the lands of another with waters that would not naturally flow thereon, pp. 91, 92.</p> <p>Same. — Injunction.—Where a drain was constructed under the provision of section 5656, Burns’ R. S. 1894 (4286, R. S. 1881), and a forty-acre tract of land was assessed, with benefits, for the drainage of two acres of such tract, the owner thereof will be restrained from draining additional portions of such forty-acre tract by lateral ditches into such drain, where it is shown that such waters naturally flow in another direction, and that such drain is insufficient to carry such additional water without damage to other landowners whose lands are drained by such ditch, pp. 92-94.</p>

<p>AAppeal. — Notice.—An appeal is perfected by filing a transcript with. a proper assignment of error thereon, within the time limited for taking an appeal, without the service of notice on the appellee. pp. 96, 97.</p> <p>Same. — Notice.—Process.—Statute Construed. — The notice provided by section 652, Burns’ R. S. 1894 (640, R. S. 1881), to be issued by the Clerk of the Supreme Court in appeals after the close of the term at which the judgment is rendered must be served on the appellee. Notice served on appellee’s attorney is insufficient, pp. 96-10S.</p> <p>Same. — Notice.—Dismissal.—An appeal will not be dismissed for failure properly to notify appellee of the pendency thereof, but the submission will be set aside for such cause, p. 103.</p>

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

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

<p>Mortgages. — Waiver of Priority by Senior Mortgagee. — Mechanic’s Lien. — Where a junior mortgagee, in consideration of a waiver of priority by the senior mortgagee, agrees that he will see that the money he advances is applied to the improvement of the property, but, in violation of his agreement, permits mechanics’ liens to be obtained against the property, he will be obliged to satisfy such mechanics’ liens out of his prior lien, and so protect the senior mortgagee, pp. 127, 128.</p> <p>Building and Loan Association. — Scope of Agent’s Authority.— Where an agent of a building and loan association has authority to solicit applications for stock and to effect loans, it is within the scope of such agent’s authority to bind the association by an agreement that the money advanced to a borrower should be used in the improvement of the mortgaged premises, p. 129.</p> <p>Liens. — Junior Lien Solder. — Marshaling of Senior Liens. — A junior lien holder cannot complain as to the order of marshaling liens senior to his own. pp. 129, 130.</p> <p>Mortgages. — Waiver of Priority by Senior Mortgagee.- — Rights of Junior Mortgagee. — Where a senior mortgagee waives his priority in favor of a junior mortgage for a larger amount, the junior mortgagee is subrogated to the rights of the senior mortgagee to the amount only of the senior mortgage, pp. ISO, 131.</p>

<p>Malicious Prosecution. — Complaint— A complaint in an action for malicious prosecution must aver that the defendant acted maliciously and without probable cause, p. 132.</p> <p>Same. — Probable Cause, a Question of Law. — Where a special verdict is returned in an action for malicious prosecution, the question of the probable cause for the prosecution complained of is not a fact to be found by the jury, but a question of law to be determined by the court, p. 133.</p> <p>Same. — Malice a Question of Pact. — In an action for malicious prosecution, malice is a question of fact to be submitted to and found by the jury, and without proof of malice the action cannot be maintained. p. 133.</p> <p>Same. —Inference of Malice from Want of Probable Cause. — The court or jury trying an action for malicious prosecution may infer malice from want of probable cause, but are not required to do so. p. 133.</p> <p>Same. — Special Verdiat.-No Finding of Malice. — Where there is no finding of malice in a special verdict returned in an action for malicious prosecution, such verdict will not support a judgment for the plaintiff, p. 133.</p> <p>Same. — Malice.—Evidence.—An acquittal of defendant of the crime charged is not prima facie evidence that the prosecution was malicious. p. 134.</p> <p>Special Verdict. — Conditional Conclusion. — The conditional conclusion of a special verdict, finding for the plaintiff if the law is with the plaintiff, otherwise finding for the defendant, is not absolutely necessary to the validity of the special verdict; and this part of the , verdict cannot be considered by the court in determining whether the law on the facts found is with the plaintiff or defendant. p. 135.</p>

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

<p>Appeal. — Record.—Certification of Original Document. — In the absence of statutory authority an, original paper or. document cannot be certified to the Supreme Court, so as to become a part of the record, p. 148.</p> <p>Same. — Incorporation of Evidence in Record. — Instructions.—Statute Gonstrued. — Under the act of March 8, 1897, providing that the original bill of exceptions embracing the evidence may, on appeal, be certified as a part of the record, it is improper to incorporate the instructions, as the statute applies only to the evidence and its incidents. pp. 147, 148.</p>

<p>Officers. — Sheriff Has no Right to Demand Fees in Advance. — A sheriff, in the absence of statutory authority, cannot demand'payment of his fees before serving a summons issued to him from another county.</p>

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

<p>From DeKalb Circuit Court.</p>

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

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

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

<p>Constitutional Law. — Board of Park Commissioners. — Tenure of Office. — The provision of the act approved March 1, 1895, sections 4346-4268, Thornton’s R. S. 1897 (Acts 1895, p. 63), creating a department of public parks in cities having a population of more than 100,000, that the hoard of park commissioners shall hold office for the term of five years, is in violation of the inhibition of section 2, article 15, of the state constitution, that “the General Assembly shall not create any office the tenure of which shall be longer than four years,” and the remainder of the act is inoperative for the reason that there are no instrumentalities left with which to carry the provisions thereof into operation and effect.</p> <p>Monks and Jordan, JJ., dissenting.</p>

<p>Exemptions. — Sales.—Judgment Idens. — Quieting Title. — Where the entire estate of a resident householder, exclusive of valid mortgage liens, does not exceed in value §600.00, he may sell or dispose of any or all of his property, and the purchaser thereof will take it free from the lien of judgments founded on contract, or the lien of an execution that may have issued thereon, and an action may be maintained by the purchaser to quiet title of such real estate against the lien of such judgments, provided suit is commenced for that purpose before the real estate is sold under the judgments.</p>

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

<p>Constitutional Law.— Construction of Constitution. — •'Words or terms used in a constitution which is dependent upon a ratification by the people, must be interpreted in a sense most obvious to the common understanding at the time of its adoption, p. 230.</p> <p>Same. — Lucrative Office. — Constitution Construed. — The term “deputy postmaster,” as used in section 9, article 2 of the constitution, which provides against the same person holding more than one lucrative office at the same time, was, by the framers of the constitution, understood and intended to mean the office of postmaster as now denominated, pp. 226-231.</p> <p>Same. — Acceptance of Second Incompatible or Lucrative Office Forfeits First. — Where the incumbent of a public office accepts and is inducted into a second office that is incompatible with the first, or where both are lucrative offices within the meaning of section 9, article 2 of the constitution, his subsequent resignation of the latter can in no manner serve to restore his right or title to the first office. pp. 231-233.</p> <p>Township Trustee. — Lucrative Office. — The office of township trustee is a lucrative office, p. 232.</p> <p>Pleading. — Action to Oust Public Officer Who Accepts Second Lucrative Office. — Sufficiency of Information. — An information, under section 1145, Burns’ R. S. 1894, to oust defendant from the office of township trustee because he had been appointed to and had accepted the office of postmaster in violation of the provision of the constitution, must negative the exception made in favor of a postmaster whose annual compensation does not exceed ninety dollars, pp. 234,</p>

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

<p>Limitation or Actions. — Concealment of Action. — Statute Construed. —To bring a case within the provision of section 301, Burns’ R. S. 1894 (300, R. S. 1881), providing that if any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto the action may be commenced at any time within the period of discovery of the cause of action, it must be alleged that some trick or artifice was resorted to,, or some material fact misstated to or concealed from the party to prevent the discovery thereof. ■ pp. $4$, $43.</p> <p>Same. — Concealment of Action. — Discovery.—Where the operation of the statute of limitation is suspended by section 301, Burns’ R. S. 1894 (300, R. S. 1881), by the concealment of the cause of action, the statute does not begin to run until after the discovery of the cause of action, or from the time the discovery thereof by the exercise of ordinary diligence might have been made. p. $43.</p> <p>Same. — Concealment of Action. — Fraud.—The concealment of a cause of action within the meaning of section 301, Burns’ R. S. 1894 (300, R. S. 1881), arises out of fraud, and while the fraud in a given case may be sufficient to give to the complaining party a right of action, it may not in the same case be also sufficient to serve to conceal the cause of action within the contemplation of the law. p. $43.</p> <p>Same. — Concealment of Action. — Time of Concealment. — The acts constituting the concealment of a cause of action in such manner as to operate in the suspension of the statute of limitation, as provided by section 301, Burns’ R. S. 1894 (300, R. S. 1881), need not be subsequent to the accruing of the cause of action, but may be concurrent therewith, or even precede it, provided that they are of such a character as to operate after the time when the cause of action accrued and thereby prevent its discovery, and were so designed and intended by the concealer, pp. $4$-$45.</p> <p>Same. — Concealment of Action. — Sufficiency of Facts.— Pleading.— Reply. — Statute Construed. — In an action for damages based upon alleged false representations made by defendant, a bank cashier, in the negotiation and sale to him by plaintiff of stock of such bank, a reply to an answer pleading the statute of limitation, alleging that in such negotiations and sale plaintiff relied upon the statements and representations of defendant in relation thereto, and being requested to keep the particulars of the sale secret did so and soon after moved to another state and some years afterward a rumor reached him that the true value of the stock at the time of the sale was from two to four thousand dollars in excess of the price for which it was sold, that he wrote the cashier several letters concerning same but received no reply, does not state facts sufficient to amount to a concealment of the cause of action within the meaning of section 301, Burns’ B. S. 1894 (300, B. S. 1881), and operate in the suspension of the statute of limitation, pp. 24.6, 247.</p> <p>Same. — Concealment of Action. — Where a concealment of the cause of action is pleaded in reply to an answer pleading the statute of limitation, alleging that defendant made false representations concerning the transaction on which the suit was founded, and requested plaintiff to keep the transaction secret, it must also be alleged that plaintiff relied upon the alleged false representations, believing them to be true, and was thereby prevented from making any inquiry or investigation relative to their truth or falsity, pp. 246, 247.</p>

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

<p>Township Trustee. — Power of to Bedistrict Township for School Purposes. — Statute Construed. — The act of February 7, 1893 (Acts 1893, p. 17), providing for the relocation of schoolhouses, in no way changes the power of the township trustee to redistrict his township for school purposes, and abolish school districts, when no new schoolhouses are built, or the sites of those already existing in districts not abolished, are not changed.</p>

<p>Judicial Notice. — Census.—Courts will take judicial notice of a census or other enumeration made under the authority of the State or of the United States, p. 258.</p> <p>Municipal Corporations. — Metropolitan Police Commissioners.— Appointment. — Census.—Under section 1 of the act of February 28, 1897, providing for the establishment of a hoard of metropolitan police commissioners within and' for cities of 10,000 inhabitants, according to the United. States census of 1890, or according to a census taken under the authority of the .mayor of such city, a census taken by the mayor must be an official enrollment of the people of the city, and must be a public document preserved in the archives of the city subject to the inspection of all those interested. pp. 256-259.</p> <p>Same. — When Possession of Property Protected by Injunction. — Where it is sought to take possession of the police property of a city, without authority of law, those in possession may protect their rights and the rights of the city by the remedy of injunction, p. 259.</p> <p>Same.- — Appointment of Metropolitan Police Commissioners. — Validity. — Under section 1 of the act of February 28, 1897, providing for the appointment by the Governor of a board of metropolitan police commissioners within and for cities of 10,000 inhabitants according to the United States census of 1890, or according to a census taken under the authority of the mayor, the Governor’s right to appoint is determined by the statement as to population certified to him by the mayor; but if the mayor’s certificate is not based upon a census, such as is contemplated by the statute, the appointments have no validity, p. 260.</p>

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

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

<p>Officers. — Comity Superintendent. — Appointment.—Power of County Auditor to Give the Casting Vote. — Statute Construed. — Under section 5900, Burns’ R. S. 1894 (4424, R. S. 1881), providing for the appointment of county superintendent, the county auditor is authorized to give the casting vote in case of a tie, whether such appointment is made by ballot, viva voce vote, or by the adoption of a motion or resolution declaring that the person therein named be appointed to fill the office. State v. Edwards, 114 Ind. 581, overruled.</p>

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

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

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

<p>Limitation of Actions.— When Applicable to Actions Brought by State. — Section 305, Burns’ R. S. 1894 (304, R. S. 1881), providing that limitations of actions shall not bar the State of Indiana, except as to sureties, applies only when the action is by the State in its own interest or in the interest of the public, and has no application where the State is but a nominal party, pp. 293-297.</p> <p>Same. — Pleading.—Action by State. — Party in Interest. — How Determined. — Where the statute of limitations is pleaded in am action where the State is plaintiff the court must determine from the entire record whether the action seeks to enforce a public right, in ' the interest of the public, or a private right, for the benefit of a private person, p. 297.</p> <p>Taxation. — Action for Failure to List Property. — Action by State.— The fact that section 8458, Burns’ R. S. 1894, fixing a penalty for failure to list property for taxation authorizes the prosecuting attorney to bring an action for the violation thereof, instead of the Attorney-General, and provides that the proceeds thereof be paid into the county treasury, instead of the State treasury,'in no way changes the public nature of the proceeding, pp. 298-300.</p> <p>Same. — Action for Failure to List Property . — Repealed Statute. — By virtue of the provisions of section 248, Burns’ R. S. 1894 (248, R. S. 1881), penalties and forfeitures incurred by taxpayers under section 6339, R. S. 1881, may be recovered the same as if said section had ’ not been repealed by the tax law of 1891. pp. 300-302.</p> <p>Same. — Tax Certificates. — Tax certificates are property, and are taxable under the tax law of 1891, as amended by the act of 1895, Acts 1895, p. 26. p. 302.</p> <p>Pleading. — Demurrer.—Answer.-—-Where an answer does not purport to answer the whole complaint, which was in one paragraph, a demurrer to such answer could not be carried back and sustained to the complaint, p. 302.</p> <p>Taxation. — Failure to List Property. — Penalty.—Action For. — The State has a separate action under the tax laws of 1881 and 1891 for each year a taxpayer gives a false or fraudulent list, schedule, or statement, or fails or refuses to deliver to the assessor a list of taxable property which he is required to list. p. 302.</p> <p>Same. — Failure to List Property.— Complaint. — In an action under section 8458, Bums’ R. S. 1894, to recover penalties for failure to list property for taxation for more than one year, the cause of action for each year should be stated in a separate paragraph of complaint. pp. 80S, 308.</p> <p>Taxation. — Failure to List Property. — Foundation of Action. — Complaint. ■ — In an action to recover the penalty provided by section 8458, Burns’ R. S. 1894, for failure to list property for taxation the alleged fraudulent tax lists given are not the foundation of the action and need not be filed with the complaint, p. 303.</p> <p>Appeal and Error. — Record.—Bill of Exceptions. — A motion made, and the ruling of the court thereon, to strike out part of a complaint does not become a part of the record by being copied therein by the clerk, but such motion and .ruling must be brought into the record by bill of exceptions, pp. 303, SO</p> <p>Same. — Record.—Where a motion made and sustained to strike out part of a complaint is not made part of the record by bill of exceptions, the court will consider the complaint as copied in the record, and has no power to disregard the portion stricken out. p. 304.</p> <p>Same. — Rehearing.—Questions not discussed in the briefs filed before the case is decided are waived, and will not be considered on petition for rehearing, p. 305.</p>

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

<p>Mandamus. — Township Trustee May Compel Auditor to Issue Warrant for Funds Belonging to Township. ■ — Where money in the hands of a county treasurer, belonging to a township, has been apportioned, the township trustee is entitled to a writ of mandamus to compel the county auditor to issue a warrant therefor, pp. SIS, SIS.</p> <p>Same. — Prima Facie Bight to Office of Township Trustee. — Where, in an action by the State on the relation of one claiming to be a township trustee, to mandate the county auditor to issue a warrant on the county treasurer for the funds of the township, it is shown that a vacancy in the office of trustee had been judicially determined, and that the board of county commissioners had duly appointed the relator to fill the vacancy, and that he had qualified and taken the oath of office, establishes a prima facie right or title of the relator to the office of trustee, pp. SIS, 311.</p> <p>County Auditor. — To Whom Pie Must Issue Warrant for Township Funds. — It is the duty of a county auditor to issue a warrant for township money to one who is prima facie entitled to the office of township trustee, p. Sty.</p> <p>Township Trustee. — May Maintain One Action for Funds Belonging Both to the Civil and School Townships. — The trustee of a civil township is ex officio trustee of the school township, and entitled to the funds of both; and as trustee of the civil township may maintain one action for money wrongfully withheld, although the money belongs partly to each fund. pp. SlJf., SIB.</p> <p>Mandamus. — Action to Compel Auditor to Issue Warrant to Trustee for Township Funds. — Defense.—Pa. an action against a county auditor to compel him to issue a warrant for the funds of the township, by one who is prima facie entitled to the office of township trustee, it is ho defense that the title to the office of such trustee is in litigation, pp. 315-817.</p>

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

<p>Evidence. — Action to Cancel Note. — Cross-Examination.—Forgery. —In an action to cancel a note on the ground that the same was forged, it was improper to ask a party plaintiff, on cross-examination, whether he had not heard his co-plaintiff make statements affecting the chastity of defendant, on the theory that the note in suit was executed by said plaintiff in compromise of a contemplated slander suit based upon such statement, where the examination in chief had not involved any inquiry as to said statement, p. 328.</p> <p>Same. — Action to Cancel Note. — Forgery.—In the trial of an action brought to cancel a note on the ground of forgery, it is improper to show that plaintiff conveyed property held by him at the time of the alleged execution of the note, on the theory that plaintiff executed same to compromise and avoid a slander suit, and conveyed his property for the purpose of defeating the collection of the note, as there can be no inference from the mere conveyance of property that the grantor is a debtor, pp. 329, 330.</p> <p>Same. — Action to Cancel Note. — Forgery.—In a suit to cancel a note on the ground of forgery, evidence offered to the effect that plaintiff and witness had talked about the note several times, and plaintiff had never denied its execution was properly rejected, where there was nothing in the evidence disclosing the character of such conversation from which it could be ascertained whether any reason existed for the denial of the execution thereof, pp. 330, 331.</p> <p>Same. — Expert Witness. — Forgery.—No error is committed in refusing to permit an expert witness to testify that a forger, in disguising and imitating handwritings, is more particular at the beginning than at the closing of such effort, p. 331.</p> <p>Same. — Exception to Admission Of. — Objections Must be Specific.— Objections made to the admission of evidence must be specific, objections made on the ground that the evidence is irrelevant, incompetent, and immaterial present no question for review, pp. 331, 332.</p> <p>Same. — Action to Cancel Note as a Forgery. — Slander.—Where in the trial of an action to cancel a note as a forgery, defendant introduced evidence to the effect that plaintiff had uttered a slander against defendant by stating, in effect, that she was pregnant, and that when threatened with a suit for such slander, he had executed the note in suit and delivered it to her as genuine in settlement of her supposed damages, evidence going to show that at the time the alleged slander was uttered, defendant was in fact pregnant, was properly admitted for the purpose of determining the influences inducing plaintiff to execute the note. pp. 332, 333.</p> <p>Trial.- — Examination of Witness. — It will not be presumed that the trial court permitted an improper examination to continue, over objections sustained by it until it was itself prejudiced in favor of the examining party, p. S3 If.</p> <p>Evidence. — Expert Witness. — Action to Cancel Note. — Forgery.—No error was committed in the trial of an action to cancel a note as a forgery in permitting witnesses to testify to the genuineness of plaintiff’s signature to bank checks, which were not papers in the case and not admitted to be genuine, where no comparisons were made, and where the signatures so proved were rejected as evidence. pp. SSJf, 335.</p> <p>Trial. — Introduction of Evidence out of Regular Order. — Discretion of Court. — The introduction of evidence out of its regular order is within the sound discretion of the trial court, and, unless made to appear as an abuse of discretion,'is not error, p. 335.</p> <p>Evidence. — Action to Cancel Note. — Forgery.—In an action to cancel a note alleged to have been forged, evidence that defendant sold to witness a forged note and afterward went to the office of witness disguised and offered to sell him the note in suit was competent as a link in the chain of circumstances tending to show defendant’s guilty knowledge of the forgery of the note. p. 335, 336.</p> <p>Same. — Weight Of. — The Supreme Court cannot weigh and pass upon conflicts in, the evidence, and if the evidence most favorable to the decision of the trial court, standing alone, is sufficient, the judgment must be upheld, p. 336.</p> <p>Same. — Action to Cancel Note. — Forgery.—Sufficiency of Evidence to Sustain Judgment. — In an action to cancel a note on the ground that same was forged, evidence that the blank upon which the note was written was printed almost two years after the alleged execution of the note was sufficient of itself to sustain a judgment canceling such note. pp. 336, 337.</p> <p>Costs. — Consolidation of Causes of Action. — Apportionment of Costs. ■ —Where two causes were pending in which the evidence would be substantially the same, and by order of court the trial and proceedings were had in one cause, the finding therein to control the other cause, it will be presumed that the order of court was followed, and that no costs were made in the cause which was not tried, and the judgment of the trial court overruling a motion to apportion the costs between the two causes will be sustained, p. 337.</p>

<p>Criminal Law. — Charge Must be Preferred with Certainty. — In a criminal prosecution .the particular crime with which the accused is charged must be preferred with such reasonable certainty by the essential averments in the pleading as will enable the court and jury to understand distinctly what is to be tried and determined, and fully inform the defendant of the particular charge he is required to meet. p. 343.</p> <p>False Pretenses. — Sufficiency of Affidavit andlnformation. — It is an indispensable requisite to the validity of an affidavit and information charging one with obtaining money by means of false pretenses, that there should be an absolute and direct negative of the material pretenses upon which the State bases the charge, and which it expects to prove and rely upon for a conviction, p. 848.</p>

<p>Railroads' — Construction of Bridges and, Embankments. — Statute Construed. — By clause 5 of section 5153, Burns’ R. S. 1894, a railroad company is empowered to construct its road across a water course so as not to interfere with the free use of the same, and “in such a manner as to afford security for life and property;” and provides that the railroad company shall restore the watercourse “to its former state, or in a sufficient manner not to impair unnecessarily its usefulness or injure its franchises.” Held, that the “life and property” and the “franchises” referred to in the statute are not those of the railroad corporation, but those connected with the watercourse, pp. 8J¡6, 347.</p> <p>Same . — Bridges and Embankments. — Surface Water — Water which flows down a stream in high-water channels, having well-defined beds and banks, is not surface water against which a railroad company, in the construction of its road, has a right to build embankments. pp. 347, 348.</p> <p>Same. — -Liable to Landowner for Damages Caused by Obstructing Water Course. — Where a railroad company constructs bridge embankments, and thereby obstructs a natural watercourse, the company is liable in’ damages resulting to a landowner; and the fact that the embankments were built in a careful manner, so as to protect the charter right of the company is no defense, p. 348.</p> <p>Same. — Construction of Bridge and Embankments. — It is the duty of a railroad company in the construction of bridges and embankments to provide for unusual stages of water, p. 349.</p> <p>Same. — Damages for Obstructing Water Course. — When Action Accrues. — A landowner’s right of action against a railroad company for damages caused by the obstruction of a natural watercourse accrued at the time the landowner was damaged by the overflow of water, pp. 349, 350.</p> <p>Appeal and Error. — Interrogatories to Jury. — New Tidal. — Alleged errors in submitting to the jury certain interrogatories, and in refusing to require more specific answers to others, to be available on appeal must be assigned as reasons for a new trial, p. 350.</p> <p>Same. — Instructions.—Where it is not shown that the instructions set out in the record were all the instructions given, error cannot be predicated on a refusal to give certain instructions requested, p. 350.</p> <p>Same. — Excessive Judgment. — An exception that the judgment is ex- ■ cessive, it being admitted that a judgment for some amount was proper, will not be considered on appeal, unless a motion to modify was made in the trial court, pp. 353, 35J/..</p> <p>Same. — SpecialVerdict.—Modifieationof Judgment. — Review.—Where a special verdict is returned, and in answer to one interrogatory damages are assessed, and in answer to another the interest thereon is found, any error in the amount of interest is an error of law to be corrected by the court by a modification of the judgment, and could not be reviewed in passing on the action of the court in overruling the motion for a new trial, p. 35A</p>

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

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

<p>Evidence. — Hearsay Evidence. — Admissibility Of. — Tax Sales. — Action to Enjoin — In the trial of an action to enjoin the sale of real estate for delinquent taxes, evidence by plaintiff that prior to the purchase of such property he was informed by the deputy treasurer, since deceased, that such taxes had been paid, was properly admitted.</p>

<p>Special Finding. — Venire De Novo. — Where enough facts are found in a special finding to support a judgment thereon the remedy is not by a motion for a venire de novo, as the silence of the finding upon any issue is deemed a finding against the party tendering such issue, p. 378,</p> <p>Same: — Conclusions.—A judgment rendered upon a special finding will not be reversed because the finding contained conplusions, where, disregarding such conclusions, enough facts remain to support the judgment, p. 378'.</p> <p>Pleading. — Evidence. — Practice.—A written statement which is claimed to be the basis of an action is improperly admitted in evidence without pleading it, either in the form in which it was written, or for enforcement in a reformed condition, p. 381.</p> <p>Evidence. — Written Contract Not Pleaded. — Where a defense to an action sounds in contract, and the contract was in writing and not pleaded in the cause, such defense is a question of law that should have been presented by the pleadings, and not being pleaded was not in issue, p. 381.</p> <p>Trial. — Theory.—Practice.—Special Finding. — Where both parties to an action, by their pleadings treat the contract concerning the questions in issue as in parol, no error was committed by the court in finding upon the oral testimony, notwithstanding the -written contract, which was not pleaded, was admitted in evidence, pp.381.</p>

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

<p>Former Adjudication. — Judgment.—Collateral Attack. — Estoppel.— A devisee of real estate, who, after obtaining a decree partitioning and quieting title thereto, is made defendant in an action brought by the administrator of the devisor to sell such real estate for the payment of debts and the widow’s claims, to which proceedings she pleaded the former suit and was defeated and abided the judgment of the court without appeal, is estopped from attacking in a collateral proceeding against the purchaser, the order of sale made therein.</p>

<p>Jury. — Qualification of Jurors. —Examination.—Question of Fact.— The Supreme Court will not interfere with the determination of the trial court of the question concerning the qualification of jurors involving questions of fact, merely because the answers of the juror are, or seem to be, inconsistent or incoherent, pp. 897-399.</p> <p>Same. ■ — • Qualifications of Jurors. — Examination. — Exceptions. — Criminal Law. — To present properly any question as to the qualifications of a juror to sit in a criminal cause, some one or more of the statutory causes provided by section 1862, Burns’ R. S. 1884 (1793, Horner’s R. S. 1897), must be stated to the trial court; an objection stated in general is properly overruled, pp. 898-400.</p> <p>Witnesses. — Cross-Examination.—Discretion of Court. — The extent to which the cross-examination of a witness may be carried rests within the discretion of the trial court, and the Supreme Court will not interfere therewith, on appeal, unless a clear abuse of such discretion is shown, pp. 401, 40%.</p> <p>Criminal Law. — Evidence.—Hearsay.—A person injured, whether living or dead, is not a party to a criminal prosecution therefor, and his admissions and statements are not evidence, either for or against the accused, unless of the res gestae, dying declarations, or threats; but are hearsay, the same as those of any other third person, pp. 402-404. ■</p> <p>Instructions. — Criminal Law. — Harmless Error. — Homicide.— Errors committed in giving or refusing to give instructions concerning the offense of murder in the first and second degree, in the trial of a criminal cause, were harmless where the defendant was convicted of manslaughter, p. 404-</p> <p>Same. — Criminal Law. — Manslaughter.—An instruction that if the jury found from the evidence, beyond a reasonable doubt, that defendant, without malice, express or implied, and without premeditation, but voluntarily, upon a sudden heat took the life of deceased, in manner and form as charged in the indictment, they should find him guilty of voluntary manslaughter is not bad for failure to use the word unlawfully before the word took, where the indictment charged that defendant unlawfully, feloniously, and purposely killed and murdered deceased, p. 405.</p> <p>Same. — Criminal Law.- — Assault and Battery. — An instruction in the trial of a cause of an assault and battery with intent to commit murder is not bad for failure of the court to use the word unlawful in referring to the touching of deceased by defendant, where the elements stated therein were such that when applied to the evidence and construed with the other instructions as a whole, the jury were not misled as to the essential elements of the offense of assault and battery, pp. 405, 406.</p> <p>Instructions. — Must Be Considered Together. — Instructions are considered as an entirety, and not separately or in dissected parts, and < even if some particular instruction, or some portion of an instruction, standing alone or taken abstractly, and not explained or qualified by others, be erroneous, it will afford no grounds for reversal, p. 406.</p> <p>Same. — Inaccuracies.—Technical Errors. — Mere verbal inaccuracies in instructions, or technical errors in the statement of abstract propositions of law, furnish no grounds for reversal, when they result in no substantial harm to the complaining party, if the instructions, taken together, correctly state the law applicable to the facts of the case. pp. 406-410.</p> <p>Same. — Erroneous Instruction. — Harmless Error. — The giving of an erroneous instruction is not reversible error when it appears that the substantial rights of the complaining party were not prejudiced thereby, pp. 410, 411-</p> <p>Same. — As to Character of Accused. — Criminal Law. — An instruction to the effect that in doubtful cases evidence of good character is conclusive in favor of the party accused of the crime is improper, as under the law the jury are the exclusive judges of the facts and of the credibility of the witnesses, and if they have a reasonable doubt of the guilt of the accused he must be acquitted whether there is any evidence of his good character or not. p. 411.</p> <p>Same. — Numbering and Signing. — It is the duty of the trial judge, under section 1892, Burns’ R. S. 1894 (1828, Horner’s R. S. 1897), to number and sign instructions given by him in the trial of a cause, yet a failure to do so will not authorize the reversal of the cause. pp. 411, 41%.</p> <p>Evidence.— Weight Of.— Conflicting Evidence.— Criminal Law.— Where in the trial of a criminal cause there was evidence given sustaining every material allegation in the indictment the Supreme Court will not reverse the cause because of conflicts therein upon some points, p. 41%-</p> <p>Criminal Law. — Excessive Punishment. — Constitutional Law. — The provisions of section 16, article 1 of the constitution that cruel and unusual punishments shall not be inflicted, has reference to the statute fixing the punishment, and not to the punishment assessed by the jury within the limits fixed by the statute, pp. 41%, 41%- •</p>

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

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

<p>Appeal and Error. — Record.—No question is presented on appeal on an assignment of error to the ruling of the court on a demurrer to the amended complaint, where neither the amended complaint nor the demurrer is set forth in the record, p. 425.</p> <p>Same. — Assignments of Error. — Failure to Argue. — Waiver.—Assignments of error are waived by failure to argue same. p. 425.</p> <p>Evidence. — Objection to Admission. — When Evidence not in Record. —Bill of Exceptions. — A specification of error based upon the admission of evidence contrary to the provisions of section 507, Burns’ R. S. 1894 (499, R. S. 1881), in the trial of an action by heirs affecting title to the ancestor’s property, presents no question, where neither the complaint nor the evidence is in the record, and no statement is made in the bill of exceptions as a ground for objection that the action was of the character contemplated by said statute, pp. 4%5, J$6.</p>

<p>Complaint. — Action to Enforce Lien on Real Estate by Infant Legatees. — Demand.—Where by the terms of’a deed the grantee thereof was to pay to each of grantor’s infant grandchildren a certain sum of money upon their arrival at the age of twenty-one years, respectively, a complaint by such grandchildren in an action against grantee, after their arrival at full age, to enforce a lien against the real 'estate so conveyed, need not allege a demand, pp. 437,438.</p> <p>Deeds. — Gifts.—When May be Revoked. — Where a person old and infirm made a conveyance of her real estate to her son, conditioned that he should pay a certain sum of money to her grandchildren upon their arrival at the age of twenty-one years, reserving a life estate therein for herself and husband, and intending to reserve the right to revoke the deed in case it should turn out that the income from the property should not be sufficient for her support and that of her husband, besides paying the necessary expenses of caring for the property, but through her own ignorance and mistake and that of the scrivener, such reservation was not put in the deed, a reconveyance thereof by the son at the request of the grantor, in consideration that if the son would pay the taxes and other expenses against the land she would reconvey same to him free from the conditions in favor of the grandchildren, defeated and revoked the gifts made to the grandchildren by the first deed. pp. 438-434-</p>

<p>Practice. — Withdrawal of Paragraph of Complaint by Court. — The withdrawal of a paragraph of complaint by the court is equivalent to'a dismissal thereof, and no one but the plaintiff can complain of such action, p. 435.</p> <p>Same . — Harmless Error. — Where the court withdrew a paragraph of complaint; a former ruling on a demurrer thereto although erroneous was rendered immaterial and harmless, p. 435.</p> <p>Quieting Title. — Complaint Must Show Title in Plaintiff. — A complaint to quiet title to real estate is bad on demurrer for want of sufficient facts to constitute a cause of action, if the facts stated therein fail to show title in the plaintiff, p. 436.</p> <p>Same. — Parties.—Statutes Construed. — Section 1086, Burns’R. S. 1894 (1073, R. S. 1881), authorizing any person having a right to recover the possession of real estate, or to quiet title thereto, which is in the name of another person, to prosecute either action in his own name must be construed with section 251, Burns’ R. S. 1894 ( 251, R. S. 1881), which requires all actions to be prosecuted in the name of the real party in interest, pp. 437, 438.</p> <p>Appeal.' — Reversal.—Technical Defects. — Overruling a demurrer to a bad complaint affects the substantial rights of the defendant to such action and in such case the trial cannot have a just determination, except the determination be for the defendant, and the Supreme Court will not refuse to reverse such ruling on account of the provision of section 401, Bums’ R. S. 1894 (398, R. S. 1881), to the effect that the Supreme Court shall not reverse any judgment for any error which does not affect the substantial rights of the adverse party, p. 439.</p> <p>Same. — Rehearing.—Questions Presented for First Time. — The Supreme Court is not bound to consider questions presented for the first time in a petition or brief for a rehearing, p. 440.</p> <p>Pleading. — Supplemental Complaint. — A supplemental complaint is not an amendment to the complaint, and its office is not to supply omissions or defects in the original complaint, but to bring up matters proper for litigation in such action that have occurred since ' the commencement of the action, p. 440.</p> <p>Pleading. — Amended Complaint. — Supplemental Complaint. — Facts existing at the time of filing the original complaint must be brought into the case by an amended complaint and not by a supplemental complaint, p. 442.</p>

<p>Fraudulent Conveyance.— Inadequate Consideration.— Innocent Purchaser. — Husband and Wife. — Equity of Wife. — A conveyance of real estate worth $8,000.00 for a consideration of $650.00, made by a husband to his wife to defraud his creditors will be set aside as fraudulent, upon such conditions as will protect the wife’s interests therein, in an action by bona fide creditors of the husband, although the wife had no actual knowledge of her husband’s fraud.</p>

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

<p>Highways. — Establishment.— Evidence of Public Utility.— The ultimate fact of public utility in a proceeding to locate and establish a public highway, on appeal from the board of commissioners to the circuit court, is to be determined from all the evidence relative thereto by the court or jury trying the issue, and it is not necessary ' that such fact be proved by direct evidence, but it may be inferred from all the legitimate facts and circumstances in evidence, pp.456, 457.</p> <p>Same. — Establishment.—Evidence of Public Utility. — It is not essentially requisite in a proceeding to locate and establish a public highway that it be shown that theproposed road will be used by the whole community or by a large part thereof, if it appears that the road will be of public convenience, the mere fact that it will specially facilitate the convenience of one or more persons over that of others, will not deprive it of its public character or utility, p. 457.</p> <p>Same.— Establishment.— Necessity. — : Evidence of Public Utility.— Where it is shown by the evidence that public convenience requires that a proposed highway be established it will be held to be of public utility although it may not appear to be of absolute necessity. p. 457.</p> <p>Evidence. — Weight Of. — Where there is evidence sufficient to support the finding of the trial court the Supreme Court will not weigh the evidence for the purpose of ascertaining the preponderance thereof, p. 457.</p>

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

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

<p>Partition. — Judgment.—Quieting Title. — Former Adjudication. — In an action by a tenant in common for the partition of his moiety in the real estate so held, no issue was raised between the defendants as to the extent of their respective interests in the real estate, as between each other, where defendants did not appear to such action, but were defaulted, and a defendant therein is not estopped from asserting title to the portion of the real estate set off to her codefendant which she held by an unrecorded deed of conveyance made prior to the partition proceeding, pp. 471-481.</p> <p>Appeal and Error. — Rehearing.—Petition.—A petition for a rehearing must state specifically the errors which the petitioner considers the court committed in the former hearing; those not included therein will be deemed waived, and will not be considered, pp. 489, 490.</p>

<p>Special Verdict. — Failure to Find Fact in Favor of Party Having Burden of Proof. — A failure to find a fact in favor of the party upon whom the burden of establishing it rests, is equivalent to an express finding against him as to that fact. p. 498.</p> <p>Negligence. — Willfulness.—Contributory Negligence. — In an action against a railroad company, based on a willful killing of plaintiff’s intestate, it is not necessary to show by the averments of the complaint, nor by the evidence on the trial, nor the facts in the special verdict, a freedom from contributory negligence on the part of the deceased person at the time the injury was sustained, pp. 498, 499.</p> <p>Same. — Willfulness.—To constitute a willful injury, the act which produced it must have been intentional, or done under such circumstances that the effects which followed must reasonably have been anticipated as the natural and probable consequences thereof. p. 499.</p> <p>Railroads. — Injury at Crossing. — Willfulness. — A. railroad train going at the rate of thirty-five miles an hour approached the crossing of a public highway in the country, and when at a distance of about 1,200 feet therefrom a covered buggy in which a traveler was riding was discovered by the fireman, 150 feet from the crossing, moving towards it at a slow gait. The side curtains on the buggy-prevented the traveler from seeing the train, and a strong wind was blowing in the direction thereof. The train continued its speed, and no danger signal or warning was given until the locomotive was within ninety feet of the crossing, when the fireman called to the engineer who applied the brakes and shut off the steam, but too late to prevent the killing of the traveler who had continued to approach the crossing, and was but four or five feet therefrom when the brakes were applied. Held, in an action against the railroad company, that the acts of the employes in charge of the locomotive were not such as would make the company liable for a willful killing. pp. JjSl-510.</p> <p>Railroads. — Presumption That Person Approaching Crossing Will Loolc and Listen. — The employes in charge of a railroad train have a right to presume that a traveler on a public highway, who is approaching a crossing of the railroad, will not only listen, but that he will look in each direction for approaching trains, p. 50L</p> <p>Same. — Special Verdict. — Incredible Finding. — Lx an action against a .railroad company for damages for injury willfully inflicted on plaintiff’s intestate, a conclusion on the part of the jury that the fireman on the locomotive, when approaching a highway crossing, toward which a traveler was leisurely driving, actually knew what was in the mind of such traveler, and what he would do under the circumstances, cannot be accepted as credible, pp. 507, 508.</p> <p>Negligence. — Willfulness.—Special Verdict. — An action for a willful injury is not supported by a finding that the injury was the result of gross negligence, pp. 508-510.</p>

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

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

<p>Judgment. — Action to Review. — Complaint.-—A complaint in an action to review a judgment must contain in the body thereof enough of the pleadings in the cause sought to be reviewed, or the substance, nature or character thereof, to present the question of the alleged error without resorting to the transcript of the record thereof filed with the complaint as an exhibit.</p>

<p>Railroads. — Failure to Give Statutory Signals at Crossings. — Negligence. — The failure of a railroad company to discharge its duty in regard to giving the signals at public crossings, as enjoined upon it by statute, is negligence per se; but to entitle an injured party to recover he must go further and show that such negligence was the cause of the injury, and that he himself was not guilty of contributory negligence, p.526.</p> <p>Practice. — Motion to Direct Verdict. — Evidence.—Appeal.—If a defendant in an action, upon the close of plaintiff’s evidence in chief, moves the court to direct a verdict on such evidence in his favor, he must stand upon his motion; if he subsequently introduces his own evidence, he will be regarded as having waived or receded from his motion, and therefore no question can be considered on such motion on appeal, p. 527.</p> <p>Instructions. — Remedy When Not Sufficiently Specific. — Where an instruction is not sufficiently specific, it is the duty of the aggrieved party to tender a proper instruction and request that the same be given, p. 528.</p> <p>Railroads. — A Person Approaching Crossing May Presume that Statutory Signals will be Given. — A person approaching a railroad crossing has a right to assume that the company will obey the law, by giving the required signals of an approaching train; and if such person, after having exercised due care, and employed his senses of seeing and hearing, can neither see nor hear an approaching train, he is justified in presuming that he can pass over in safety, pp. 528, 529.</p> <p>Instruction. — When Party Estopped from Objecting to an Irrelevant Instruction. — Where a party asks and the court gives an irrelevant instruction, he is estopped from objecting to an amendment by the court of another instruction tendered by him, which amendment does nothing more than to add to the objectionable charge requested in the first instance, pp. 529, 580.</p> <p>Same. — Refusal to Give. — Defective Record. — The refusal to give requested instructions is not available error where the record does not affirmatively show that the instructions purporting to have been given by the court were all the instructions given in the cause. p. 581.</p> <p>Appeal. — Petition for Rehearing. — Sufficiency Of. — A petition for a rehearing is a pleading, and not a mere argument or brief, and where a purported petition for a rehearing does not state any specific cause or causes for which the judgment of the Supreme Court is supposed to be erroneous, it presents no question for consideration. p. 582.</p>

<p>Appeal and Error. — Record.—Motions.—No question is presented on appeal as to the ruling of the court on a motion made by defendant to require plaintiff to elect whether he would sue as trustee or receiver, where such motion was not brought into the record by bill of exceptions or by order of court, p. 538.</p> <p>Practice. — Harmless Error. — An order of court requiring a plaintiff to elect whether he would sue as trustee or receiver was immaterial and harmless,, if erroneous, where the rights of recovery were the same in either capacity, pp. 588, 539.</p> <p>Trusts. — Absconding Officer. — Court may Appoint Trustee to Administer Trust Funds. —The court may, under the provisions of section 3418, Bums’ R. S. 1894 (2996, R. S. 1881), appoint a trustee to take charge of trust funds abandoned by an absconding county clerk and collect and administer them in the interest of the beneficiaries entitled to them in the absence of such clerk or of anyone authorized and willing to act for him. pp. 539-51$.</p> <p>Trusts. — Action to Recover Funds Belonging to Cestuis Que Trust.— An action may be maintained by a trustee appointed by the court to take charge of trust funds abandoned by a county clerk, to recover funds embezzled by such clerk without making the cestuis que trust plaintiffs in such action, pp. 542-544.</p> <p>Same. — Power of Trustee to Maintain Action to Set Aside Fraudulent Transfer of Assets. — One appointed by the court to take charge of trust funds abandoned by an absconding county clerk, and administer same for the benefit of the cestuis que trust, may maintain an action to set aside a transfer of assets made by such clerk in fraud of the trust, the transferee having knowledge of the trust and par- ' ticipating in the fraud, pp. 543, 544.</p> <p>Same. — Recovery-'of Funds Misapplied by Trustee. — Officers.—Bunds held by a county clerk, as such officer, and wrongfully applied to the payment of his individual liabilities, the creditor having knowledge of the trust and knowing that the money so applied was trust funds, may be recovered in an action by a trustee for the use and benefit of the cestuis que trust, pp. 544-552.</p>

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

<p>Judgment. — Relief From Judgment Taken Before Justice of Peace Through Excusable Neglect. — Statute Construed. — Section 399, Burns’ R. S. 1894 (396, R. S. 1881), providing relief from a judgment taken through mistake or excusable neglect, is not applicable to judgments taken before a justice of the peace; and the filing of a transcript of such judgment in the office of the clerk of the circuit court will not make it a judgment of the circuit court, or give such court authority to grant relief therefrom, p. 556.</p> <p>Same. — Judgment Taken Before Justice of Peace. — Excusable Neglect. —Relief.—Relief, after thirty days, from a judgment taken by default before a justice of the peace, is by a proceeding in the circuit court for a new trial, under section 1571, Bums’ R. S. 1894 (1503, R. S. 1881). p. 557.</p> <p>Same. — When Collection of Judgment May be Enjoined. The collection of a void judgment may be enjoined, but not so where it is merely irregular or erroneous, p. 557.</p> <p>Pleading. — Complaint.—Exhibit.-—Summons.—In an action to set aside a judgment for want of proper service, a copy of the summons filed with the complaint as an exhibit, but not made a part thereof, cannot be considered in determining the sufficiency of the complaint. p. 557._</p> <p>Judgment. — Collateral Attack. — The judgment of a justice of the peace is not open to collateral attack, where the defendant is a resident of the township in which the suit is brought, and the facts necessary to confer jurisdiction over the person of the defendant appear affirmatively upon the face of the record, p. 558.</p> <p>Appeal and Eeron. — Bill of Exceptions. — Record.—The evidence is not in the record where the record does not show that the bill of exceptions was filed in the clerk’s office after it was signed by the judge, p. 559.</p> <p>Same. — Bill of Exceptions. — Longhand Manuscript of Evidence.— Prior to the taking effect of the act of March 8, 1897 (Acts, 1897, p. 244), it was necessary that the record should affirmatively show that the longhand manuscript of the evidence was filed in the clerk’s office before it was incorporated in the bill of exceptions, p. 560.</p>

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

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

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

<p>Appeal. — Bill of Exceptions. — A bill of exceptions must be signed by the judge before it is filed with the clerk, p. 593.</p> <p>Statute. — Repeal of, Pending Action Based Thereon. — A proceeding for the issue of a writ of mandate to require the treasurer of a city school board to pay over to the county treasurer a balance of unexpended school revenue, as provided by section 5969, Bums’ R. S. 1894, was not affected by the enactment, after the suit was begun, of the act of March 7, 1895 (Acts 1895, p. 153). repealing the former statute and providing another mode for the enforcement of the liability, pp. 593-595.</p> <p>Parties. — Action to Require Treasurer of City School Board to Pay Over Unexpended Balance of School Revenue. — In an action to require the treasurer of a city school board to pay over to the county treasurer an unexpended balance of school revenue, as provided by section 5969, Bums’ R. S. 1894, it is not necessary to include with the treasurer the other members of the school board, p. 595.</p>

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

<p>Appearance. — Special Appearance. — Jurisdiction. — Cross-Complaint. — Waiver.—Where a defendant enters a special appearance and unsuccessfully denies the jurisdiction of the court over his person, and afterward enters a general appearance and files a cross-complaint demanding affirmative relief, he thereby waives the question of jurisdiction.</p>

<p>Appeal and Error. — Assignment of Error. — Parties.—The assignment of errors must contain the names of all the parties; the names of the appellants should be written before the abbreviation “vs.” and the names of appellees after such abbreviation.-</p>

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

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

<p>Criminal Law. — Affidavit and Information. — An affidavit and information charging defendant with stealing turkeys is not bad for .failure to state that the turkeys were domestic and in possession of the owner where it is charged that they were owned by the person therein named and were of a given value, p. 642.</p> <p>Same. — Special Judge. — Objection.—Waiver.—Where in the trial of a criminal cause on motion of the State for a change of venue from the regular judge, a special judge is appointed to try the cause without objection by defendant, he thereby waives his right to question the jurisdiction of the judge appointed by the regular judge. pp. 642, 643.</p> <p>Same.— Verdict. — Indeterminate Sentence Law.— Petit Larceny.'— Indiana Reformatory Act. — A verdict' simply stating the age of defendant and that he is guilty of petit larceny as charged in the indictment, without fixing the punishment to be inflicted, is authorized by the Reformatory Act (Acts 1897, p. 69), where defendant is over sixteen and less than thirty years of age. pp. 643, 644.</p> <p>Same. — Indeterminate Sentence Law. — Invasion of Right to Trial by Jury. — Constitutional Law. — Indiana Reformatory Act. — The provision of section 13, article 1, of the constitution granting the accused in all criminal prosecutions the right to a trial by jury is not violated by the Reformatory Act (Acts 1897, p. 69) in not requiring the jury to fix the punishment of defendant, pp. 644, 645.</p> <p>Same. — Indeterminate Sentence Law. — Failure of - Court to Fix Minimum Punishment. — Indiana Reformatory Act. — In the trial of a criminal cause, under the indeterminate sentence law of 1897 (Acts 1897, p. 69), the failure of the court to fix the minimum punishment in the sentence is not error of which defendant can complain, p. 648.</p>

<p>Municipal Corporation. — Appropriation for Entertainment of Convention. — Private Subscriptions. — Bight of City to Unexpended Balance. — Having been invested with special authority by the legislature, the common council of the city of Indianapolis appropriated §75,000.00 out of the treasury of the city for the purpose of defraying the legitimate expense in the preparation for the reception and entertainment of the twenty-seventh National Encampment of the Grand Army of the Republic. The ordinance appropriating the money created an “encampment committee” the members of which were vested with the power of disbursing the funds appropriated. Before the said ordinance was passed the president and secretary of the Comrdercial Club, an incorporated body, the primary object of which is to promote the business and commercial interests of the city, appeared before the finance committee of the common council, and represented that it would be impossible to secure private subscriptions in a sufficient sum, and stated that if the appropriation was made by the city, that such appropriation should only be drawn upon to make up any deficiency after the private subscriptions, of which the Commercial Club had charge, were entirely exhausted, and that any unexpended balance of the fund appropriated by the city should be turned into the city treasury. Of the §75,000 appropriated the “encampment committee” appointed by the city turned over §85,000 to the citizens’ executive board upon an order signed by the chairman to the effect that it would be paid out for legitimate expenses only, and any unexpended balance remaining should be turned back into the city treasury. The citizens’ executive board also had charge of, but kept in a separate account, the funds collected by the Commercial Club. After the encampment had been held, there remained a balance of §584.75 belonging to the city’s account, which, with some money belonging to the executive board, was turned over to the city treasurer. Reld, that the city had no claim to any unexpended balance of funds which had been collected by the Commercial Club. pp. 651-669.</p> <p>Municipal Corporation. — Motive of Common Council. — Courts will not inquire into the motive of the common council of a city in the enactment of an ordinance, p. 665.</p>

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

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

<p>Appeal and Error. — Dismissal for Failure to File Brief Within Sixty Days. — Waiver.—Buies of Supreme Court. — Where appellant’s brief is not filed within sixty days after a cause is submitted it becomes the imperative duty of the Clerk of the Supreme Court, under rule twenty, to enter an order dismissing the appeal, unless before the expiration of the time limited the appellee shall have filed with the clerk a written request that the cause be passed upon by the court, and neither the clerk nor the parties by agreement can waive the requirement of such rule, except in the manner provided in its terms.</p>

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

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

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