Volume 152 — Indiana Reports

<p>Erran the Gass Circuit Court.</p>

<p>Master and Servant. — Negligence. — Contributory Negligence. — Complaint. — A complaint in an action for damages for injuries sustained by plaintiff while engaged in defendant’s stone quarry alleged that a large bank of clay, of original deposit and stone, about seven feet in length and eight feet high, and one foot wide, and. weighing about five tons, that had been loosened by the removal of stone, and left unsupported, fell upon plaintiff; that the bank was of a brownish color, and appeared to plaintiff to be a ledge of stone, and the fact that it was a bank of clay was wholly unknown to plaintiff; that banks of clay were unusual in said quarry; that plaintiff when injured was in the line of his duty in the service of defendant, and had no knowledge that the bank had been loosened and left unsupported and was in danger of falling; that plaintiff in no way contributed to his injuries; that defendant well knew that the bank was not a ledge of stone, but a bank of clay and stone, loose and unsupported, and was in danger of falling, and carelessly and negligently failed to notify plaintiff thereof, although defendant well knew that the duties of plaintiff required him to pass beneath and close to said bank; that the superintendent of the quarry was above and near said bank, and saw that it was a mud seam, and had been loosened and was liable to slide down at any time. Held, that, as against demurrer, the complaint alleged facts sufficient to show negligence of defendant causing the injury, and freedom from contributory negligence on the part of plaintiff. pp. 28, 29.</p> <p>Limitation of Actions. — Amended Complaint. — An amended complaint which does not introduce a new cause of action has reference to the time of the filing of the original complaint, and a plea of tlje statute of limitations will be determined with reference to the date when the action was originally commenced, p. SO.</p> <p>Interrogatories to Jury. — When Not in Conflict with General Verdict. — Master and Servant. — Answers to interrogatories in an action for damages on account of injuries sustained by plaintiff while at work in defendant’s stone quarry by reason of a bank of clay falling upon him, that plaintiff had worked in the quarry for over a year and knew that mud seams and dry seams were usual in the quarry; that he received no specific command on the day of the injury to go to the place where he was at work when injured; that at the time he went beneath the embankment, and before it fell upon him, he examined the embankment with the eye and was prevented by sand and mineral deposit from seeing the exact character of the mud bank are not in irreconcilable conflict with a general verdict for plaintiff, pp. 30-32.</p>

<p>Criminal Law. — Indeterminate Sentence Law. — Constitutional Law. —Assault and Battery with Felonious Intent. — The act of March 8, 1897 (Acts 1897, p. 219), known as the indeterminate sentence law, is not an ex post facto law within the meaning of section twenty-four, article one of the bill of rights as applied to an indeterminate sentence upon conviction of assault and battery with felonious intent, the crime having been committed before the passage of the • act, as the new law does not add to or increase the punishment of the offense beyond that existing at the time of its commission, pp. 85-37.</p> <p>Same. — Indeterminate Sentence Law. — Constitutional Law. — Repeal of Good Time Law. — The act of March 8, 1897, (Acts 1897 p. 219), known as the indeterminate sentence law, is not ex post facto in that it repeals the good time law, as the good time law relates only to rules for the government of the prison officials, and the indeterminate sentence law substitutes a new and different method of crediting good time to the convict, p. 87.</p> <p>Same. — Instructions.—Self-Defense.—An instruction to the effect that a person is not justified in using a deadly weapon in defense of, his person when assaulted by one who has no weapon in his hands, nor the appearance thereof, is erroneous, pp. 87, 38.</p> <p>Instructions. — Correct as Abstract Proposition of Law. — Aninstruction which leaves the jury in doubt or uncertainty as to how it should be applied to the evidence, although correct as an abstract proposition of law, is erroneous, pp. 38, 39.</p>

<p>Marshaling Assets. — Liens.—Judgments.—Complaint.— A complaint by a judgment creditor to set aside certain chattel mortgages upon property levied upon, and to sell said encumbered property, and marshal the assets and distribute the same to the persons holding liens thereon according to their priority, and for the appointment of a receiver is sufficient without any allegations as to fraudulent intent and purpose in the execution of the mortgages. p. 41.</p> <p>Same. — Liens.—Where one has a lien on two or more funds as security for a debt, and another has a lien on one only of such funds, and others have liens, some on all of such funds, and some only on a part thereof, a bill to marshal the assets will lie. p. 41■</p> <p>Pleading. — Demurrer.—Joint Demurrer. — Practice.—A demurrer to two paragraphs of answer for the reason that “neither of said paragraphs of answer states facts sufficient to constitute a good defense to either of said cross-complaints,” is joint, and not several, and if either paragraph of answer was good the demurrer was properly overruled, p. 42.</p> <p>Appeal and Error. — Evidence.—Weight of. — Fraud.—Where there is competent evidence, either direct or circumstantial, whioh sustains the finding hy the trial court of fraud in the execution of a mortgage to secure creditors, the Supreme Court will not disturb the finding on the weight of the evidence, p. 1$.</p> <p>Principal and Surety. — Mortgage Executed by Principal in Fraud of Creditors. — A surety who accepts a mortgage, obtained by his cosurety, executed by the principal to such sureties jointly, in fraud of creditors, takes the same charged with all of the infirmities affecting it by reason of the participation of the cosurety in the fraud, although such surety had no knowledge of the mortgage until after it was executed and recorded, p. 45.</p> <p>Appeal and Error. — Rehearing.—A rehearing will not be granted in order that either party may file additional briefs, or request an oral argument; requests for time to file additional briefs, and for an oral argument, must be seasonably made. p. 46.</p> <p>Same. — Rehearing.—The fact that the Clerk of the Supreme Court may have expressed an opinion as to when a case would be decided, or that the parties were negotiating as to a compromise of the cause, is no excuse for a failure to make application for time to file additional briefs, and for an oral argument before the decision of the cause, p. 46.</p>

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

<p>Husband,and Wife. — Purchase-Money Mortgage Executed by Husband Alone. — Foreclosure.-—Inchoate Interest of Wife. — A purchaser of real estate at a foreclosure sale under a mortgage executed by the husband alone takes under such sale nothing more than the interest or title of the husband, which does not embrace the inchoate interest of the wife; and if the mortgage be for purchase money it is then held by the purchaser subject to the right of the ■wife to redeem in the manner and under the conditions provided by law. pp. S9, 60.</p> <p>Deeds. — After-Acquired Title. — Husband and Wife. — Mortgages.— Foreclosure. — Inchoate Interest of Wife. — Redemption.—A grantor conveyed land giving only a certificate of purchase. The land was afterward conveyed by successive warranty deeds. The last grantee mortgaged same for the purchase money, his wife not joining therein, and the mortgage was foreclosed without making the wife a party. After the foreclosure, and pending the sale, the original grantor executed a warranty deed to the last grantor. Held, that such deed related back and vested the after-acquired title in grantee as of the date of his deed; that the inchoate interest of grantee’s wife also attached as of that date; that the purchaser at the foreclosure sale acquired the legal title to the land, subject to the right of the wife to redeem, as to her one-third interest in the manner provided by law. jpp. 60-65.</p> <p>Pleading. — Demurrer.*—Motion to Make More Specific. — The fact that a pleading is not as certain and specific as the rules of good pleading require will not, as a general rule, render it bad on demurrer. Objection to a pleading on the ground that it is uncertain must be interposed by motion to make more specific, p. 61.</p> <p>Same. — Specific Facts Control. — The sufficiency of a pleading depends upon the specific facts alleged, and not upon the mere conclusions of the pleader, p. 62.</p> <p>Husband and Wife. — Inchoate Interest of Wife in Lands of Husband. —A wife cannot be said to take the interest given her by section 2491 It. S. 1881, through her husband, but such interest attaches as an incident to his seizin during coverture,, and cannot be devested through any charge or conveyance made by him, unless she joins therein, p. 66.</p> <p>Estoppel. — Pleading.—Matters creating an estoppel must be specially pleaded, p. 69.</p>

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

<p>Pleading. — Complaint.—Account, Action on. — A complaint alleging that the “plaintiff and defendants have had mutual dealings for two years, each keeping his own accounts, the items of which are numerous; * * * that there is due plaintiff as a balance on said mutual accounts about 8200,” demanding an accounting and judgment, is insufficient, where the nature of the dealings between the parties is not stated and no copy of the account is made part of the complaint.</p>

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

<p>Taxation.— Failure to IAst Property.— Complaint. — In an action against a taxpayer to recover penalties for failure to list property for taxation, each year’s failure constitutes a separate cause of action. and should be stated in a separate paragraph of the complaint. pp. 82, 83.</p> <p>Same. — Harmless Error. — Overruling Motion to Paragraph the Complaint. — The action of the court in overruling a motion to require the State, in an action to recover the penalty for failure to list property for taxation, to state each year’s failure in separate paragraphs is harmless, where the State elected to ask a recovery for one particular year only. p. 83.</p> <p>Pleading. — Legal Capacity to Sue. — Demurrer.—Absence of legal capacity to sue is prescribed by the code as one of the causes of demurrer to a complaint, and such question cannot he presented on appeal where the same was not assigned as cause for demurrer. pp. 83, 84-</p> <p>Taxation. — Failure to List Property. — Action.—Relator.—An action by the State for failure to list property for taxation is properly brought on the relation of the prosecuting attorney, p. 84.</p> <p>Same. — Failure to List Property. — Complaint.—A complaint in an action by the State on the relation of the prosecuting attorney for the recovery of the penalty provided by statute for failure to list property for taxation which discloses that the omitted property consisted of money, bonds, mortgages, notes, etc., subject to taxation, is sufficient without averring the value of the particular property. p. 84.</p> <p>Same. — Failure to List Property. — Penalty.—A penalty of $1,500 for failure to list property for taxation is not excessive, where the evidence showed that defendant omitted from his tax list over $20,000 worth of property held by him, subject to taxation, and converted about $1,800 for the purpose of avoiding taxation, p. 84.</p> <p>Pleading. — Amendment. — The action of the court in permitting plaintiff to amend his complaint after the jury was impaneled, and during the trial, will not be reviewed on appeal, where an abuse of discretion to the prejudice of defendant’s substantial rights is not shown, pp. 84, 85.</p> <p>Appeal and Error. — Evidence.—Admission.—Exception.—No question is presented on appeal as to the action of the court in sustaining an objection to a question propounded to a witness by merely reserving an exception to such ruling, p. 85.</p> <p>Instructions. — Must be Considered Together. — An inaccurate instruction will not operate in reversing a judgment, where the instructions considered as a whole correctly advised the jury relative to the law by which they were to be controlled in arriving at a verdict. p. 85.</p> <p>Appeal and Error. — Erroneous Instructions. — When Cause Will Not be Reversed on Account of. — The Supreme Court will not reverse a judgment on account of erroneous instructions, where the evidence clearly establishes that appellant was guilty of the wrong imputed to him under the complaint, p. 85.</p>

<p>Personal Injuries. — When Death of Injured Person Abates the Action. — In the absence of statutory enactments, actions for injuries to the person abate on the death of the person injured, and do not survive to the personal representatives, p. 87.</p> <p>Statutes. — Construction of when Reenacted. — When the legislature 1 réénacts a statute of the state, it adopts also the construction given to such statute by the courts of the state before such reenactment. p. 88.</p> <p>Personal Injuries. — Damages for Pain and Suffering. — Action Abates with Death of Injured Person. — Under section 282 Horner 1897, providing that a cause of action arising out of an injury to the person dies with the person, except where a right of action is given for injury causing death, an action cannot be maintained by an administrator for damages for the physical pain and suffering of his intestate, since such right of action abates on the death of the intestate, pp. 86-89.</p>

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

<p>Boundaries. — Surveyor’s Record. — Evidence.—A surveyor’s record, reciting that the parties were present and consenting to the survey, without naming them, and without disclosing that such parties had consented in writing, or had been duly notified of the survey, is not admissible in evidence to prove the location of certain corners. p. 100.</p> <p>Same. — Surveyor’s Record. — Notice of Survey. — Presumption.—Where the record of a county surveyor fails to show that the required notice was given to the owners of land adjoining a line sought to be established, it will not be presumed that notice was given, since it is no part of the surveyor’s duty to give such notice, pp. 100, 101.</p> <p>Boundaries. — Statutory Survey. — Evidence.—A contract between the . owner of land adjoining a line sought to be established and a former owner of the land, which contract mentions the quantity of land such owner was to get, but contains nothing as to the location of the disputed line, is not admissible in evidence to 'prove the location of such line. p. 102.</p> <p>Same. — Statutory Survey. — Evidence.—A letter to the owner of land adjoining a line sought to be established from a former owner of such land, stating that no private survey would be recognized and warning him to keep off the land until a legal survey should be made, is not admissible in evidence to prove the location of the line in dispute, p. 102.</p> <p>Same. — Agreement of Landowners that New Survey be Made. — An agreement between adjoining landowners that a survey be made does not justify the surveyor in changing a corner or line lawfully established by previous survey, pp. 102, 103.</p> <p>Same. — Landowner Does Not Waive Rights Under Previous Survey by a Demand for New Survey. — A demand for a survey, or the consent of the owner of lands that a survey may be made, is not an admission that the location of a corner or line is uncertain, or that they have been incorrectly located by a previous survey, nor is it a waiver of any right such owner has under a previous survey. pp. 103, 104.</p>

<p>Mechanic’s Lien. — Foreclosure of Mortgage. — Expiration of IAen. — ' A mechanic’s lien which was foreclosed within one year, as provided by section 7259 Burns 1894, without making a mortgagee of the premises a party, is void as to such mortgagee at the expiration of one year from the time the notice of the intention to hold the lien was filed.</p>

<p>Statutes. — Amendment.— Act of 1885. — Intoxicating Liquors.— License. — Towns.—The act of April 10, 1885 (Acts 1885, p. 171), for the incorporation of towns, authorizing the trustees thereof to license the sale of intoxicating liquors, is void, since it is an amendment of the act of March 1,1877, held by the Supreme Court to be invalid, p. 109.</p> <p>Intoxicating Liquors. — License by Town. — By the act of March 81, 1879 (Acts 1879, p. 201), the seventh clause of the act of 1852 was amended so as to authorize town trustees to license the sale of vinous, malt, and other intoxicating liquors, charging a license fee not to exceed the amount required by the statutes of the State to sell or retail intoxicating liquors; the sum then required by the State for a license to sell spirituous, vinous, and malt liquors, was $100; and for a license to sell vinous and malt liquors only, $50. Held, that construing said laws together a town had the right to issue a license to sell intoxicating liquors generally, and charge a license fee of $100. pp. 110, 111.</p>

<p>W ills. — Construction.—Use of Income of Estate for Life. —Residuum. —Testator bequeathed to his wife the use of all his property both real and personal for and during her lifetime, with a provision that “she shall use but the rents and profits of said estate, or so much thereof as she can make profitable use of.” In a further provision of the will the testator enjoined upon his executors the duty “to assist her and attend to all her business if she so desired.” Held, that the will gave the widow only a right or power to use the income, and, upon her failure to avail herself of that right, the rents and profits remaining with the executors'at her death went to testator’s residuary legatees.</p>

<p>Erom tbe DeKalb Circuit Court.</p>

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

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

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

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

<p>Descent and Distribution. — Husband and Wife. — Childless Second Wife. — Section 1 o£ the act of March 11, 1889 (Acts 1889, p. 430, section 2644 Burns 1894) providing that if a man marry a second or subsequent wife and has by her no children, but has children alive by a former wife, the interest of such wife in the lands of her husband shall be a life estate, and the fee of the same shall vest in such children at the death of the husband is void, as it seeks to amend section 2 of the act of 1853 which was repealed by the act of March 9, 1867. pp. US, llf.1)..</p> <p>Same. — Husband and Wife. — Childless Second Wife. — Plaintiff brought suit for partition of her one-third interest in her deceased husband’s real estate. The pleadings show that plaintiff was a second wife, having no children by the marriage existing at the time of the husband’s death, but having a child living by a prior marriage between her and her said husband, which had been dissolved, and that the husband had children living by a previous wife. Held, that the rights of plaintiff in said lands are determined by section 2487 R. S. 1881, or section 2640 Burns 1894, either of which gives her one-third of the land in fee simple, with limitation as to descent and disposition thereof as provided in [section 2487 R. S. 1881, or section 2641 Burns 1894. pp. 143-145.</p>

<p>Criminal Law. — Defense.—Special Pleas. — Such matters of defense as might have been set up by special plea at common law may yet be presented in that manner in this State, p. US.</p> <p>Same. — Defenses Which May he Specially Pleaded. — Besides the special pleas to the jurisdiction of the court and in abatement, the only defenses that may be specially pleaded are a former acquital, a former conviction, and insanity, pp. 148, 149.</p> <p>Criminal Law. — Evidence.—Record of the Trial and Conviction of Another Charged With Same Offense.■ — The record of the trial and conviction of another person who was indicted and separately tried for the same offense is not admissible in evidence either to prove defendant’s innocence or to establish the grade of the offense. p. 149.</p> <p>Same. — Instruction.—Harmless Error. — An instruction directing the jury to assess the punishment of defendant if they found him guilty, when under the law they could determine only the question of guilt or innocence, is harmless, pp. 151, 152.</p>

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

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

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

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

<p>Appeal and Error. — Motion to Strike Out Part of Pleading. — How Made Part of Record. — A motion to strike out a part or all of a pleading can only be made a part of the record by bill of exceptions or order of court, p. 169.</p> <p>Pleading. — Foreclosure of Mortgage. — Statute of Limitations. — Where a complaint to foreclose a mortgage recites that a certain defendant claims some interest in the mortgaged property, but that if he has any interest it is subject to plaintiff’s mortgage, such defendant cannot plead the statute of limitations, unless he alleges facts showing that he has an interest in the property, p. 170.</p> <p>Same. — Facts in One Paragraph Not Made Part of Another by Reference. — The facts averred in one paragraph of a pleading cannot be adopted and made a part of another paragraph by reference, p. 172.</p>

<p>Erom tlie ITenry Circuit Court.</p>

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

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

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

<p>Prom tbe Pulton Circuit Court.</p>

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

<p>Municipal Corporation. — Costs Incident to Location of County Seat May be Imposed Upon City Where Located. — A city receives such special benefits from the location of a county seat within its corporate limits as would justify the legislature, in its discretion, in authorizing the entire burden of the expenses incident to such location to be laid upon the property of such city. pp. 211,212.</p> <p>Same. — Municipality Serves as an Agency for the Legislature. — A municipal corporation serves but as an agency or instrumentality in the hands of the legislature to carry out its will in regard to local governmental functions, p. SIS.</p> <p>Municipal Corporation. — Aid for Public Improvements. — Location of County Seat. — Statute Construed. — The location in a city of a county seat and the erection of the necessary county buildings are not “public improvements or public works” within the meaning of section 3152 R. S. 1881, authorizing cities to donate money or bonds in aid of public improvements or public works, pp. SIS, SIS.</p> <p>Same . — Bonds for the Relocation of County Seat. — Statutes Afford Color of Legal Authority. — Section 2 of the act of March 9, 1875, (Acts 1875, p. 34,) authorizing county authorities to accept donations towards the expenses of constructing public buildings in connection with the relocation of a county seat, construed with section 8152 R. S. 1881, empowering cities to donate money or bonds in aid of public improvements or public works, did not, in the year 1876, authorize a city to incur a debt for the removal of a county seat and issue bonds therefor; but these sections of the statutes afforded such color of legal authority for the issue of bonds for that purpose that it will be presumed that when such bonds were issued that the common council of the city acted in good faith, pp. 21S-S1B.</p> <p>Constitutional Law. — Legalizing Act. — Municipal Bonds. — In the absence of constitutional restrictions the legislature has the right to legalize the bonds of a city so long as vested rights have not intervened. pp. SIS, S17.</p> <p>Same. — Act Legalizing Jeffersonville City Bonds. — The act of March 2, 1897, legalizing certain bonds of the city of Jeffefsonville did not create a debt of the city greater than two per cent, of the valuation of the property therein, in violation of section 1, article 13, of the Constitution as amended March 14, 1881, but simply legalized the debt which the legislature recognized as having existed before the Constitution was thus amended, pp. SSI, SSS.</p> <p>Same. — Legalizing Act. — Exercise of Judicial Power by Legislature.— Where certain bonds have been judicially declared to be invalid, an act legalizing such bonds is not an attempt of the legislature to exercise judicial power in violation of section 1, article 7 of the Constitution, as respects an action involving the validity of such bonds commenced after the passage of the legalizing act. p. SSB.</p> <p>Same. — Act Legalizing City Bonds Not Local and Special Legislation. —An act legalizing city bonds is not unconstitutional as being local and special legislation, since such legislation does not fall within the cases enumerated by section 22, article 4, of the Constitution. p. SS6.</p>

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

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

<p>Dbains. — Construction in Two or More Counties. — Jurisdiction of County Commissioners. — Where a petition was filed in Kosciusko county for the construction of a ditch having its source in Kosciusko county and its terminus in Marshall county, and for an arm of such ditch having its source in St. Joseph county, the petition in so far as it relates to the construction of the arm was properly dismissed for want of jurisdiction, under section 34 of the act. of April 31, 1881. pp. 246, 247.</p> <p>Same. — Construction in Two or More Counties. — Joint Session of County Commissioners. — Where a petition filed for the construction of ,a ditch extending into two counties, and for an arm of such ditch extending into a third county, was dismissed in so far as it related to the construction of the arm, it was not necessary in a joint session of the county commissioners that the third county be represented, pp. 247, 248.</p> <p>Same. — Failure of Viewers to Report. — Where viewers were appointed and ordered to report on a proposed drain at the March term of court, but, with the knowledge and acquiescence of the petitioners, did not report until the September term, an extension of time for good cause shown having been granted both at the March and the June terms, does not amount to an abandonment of the petition. p. 248.</p>

<p>Highways. — Change of Location. — Railroad Crossings. — Instructions: — In the trial of an action to change the location of a public highway, which had been established, but not opened, the court in one instruction told the jury that the highway proposed to be vacated must cross the railroad at grade and not under it; in another that such highway may be carried under the railroad, if that be the most convenient manner of crossing; and in another instruction informed the jury that it could not be judicially determined what kind of a crossing will be constructed across the railroad on the line of the highway sought to be vacated. The highway sought to he vacated, as shown in the petition therefor, crosses the railroad at grade. Held, That the first instruction correctly stated the law, and that the second and third were in direct conflict therewith, and erroneous, pp. 249-251.</p> <p>Same. — Establishment. — Petition. — Railroad Crossing. — Where a petition for the establishment of a public highway which crosses a railroad right of way does not ask for a crossing under the tracks, it will be held to be a petition for the location of a highway to cross the railroad tracks at grade, where the construction thereof under the railroad would require the removal of a fill and the construction of a bridge or other support for the tracks, p. 251.</p>

<p>Execution Sale. — Purchase by Judgment Creditor. — Secret Equities. —A judgment creditor who in good faith buys land at an execution sale on his own judgment takes the land free from prior secret equities of which he had no notice in like manner as a stranger purchaser. Boling v. Howell, 39 Ind. 329, Petry v. Ambrosher, 100 Ind. 510, Tarkington v. Purvis, 128 Ind. 182, Orb v. Coapstick, 136 Ind. 313, and Shirk v. Thomas, 121 Ind. 147, in so far as they may be deemed to affirm the contrary doctrine, are disapproved.</p>

<p>Erom tlie Vigo Circuit Court.</p>

<p>Appeal and Error. — Record.—Demurrer.—Where the order-book entry showing the filing of the demurrer to an alternative writ of mandate recites that the “defendants jointly and severally demur to said alternative writ,” and the language used in the demurrer filed clearly shows that it is a joint and several demurrer of all the defendants, it will be so considered on appeal, though in the demurrer the word “ defendant ” was used instead of “ defendants.” p. 279.</p> <p>Taxation. — Building and Loan Associations. — Stock in building and loan associations, whether paid up, prepaid, running, or otherwise, is taxable at its true cash value, pp. 279, 280.</p> <p>Constitutional Law. — Exempting Building and Loan Stock from Taxation. — Any law either directly or indirectly exempting stock in building and loan associations from taxation is unconstitutional. p. 280.</p> <p>Taxation. — County Assessor May Inspect Books of Building and Loan Associations and Other Corporations. — Mandamus.—For the purpose of listing the property of building and loan associations and other corporations for taxation a county assessor has the right to inspect the books and papers thereof, and may enforce that right by mandate, p. 280.</p>

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

<p>Deed. — Recital Reserving Life Estate. — Construction.—A conveyance in the ordinary form, except a recital that the “deed is to take effect and be in full force on and after the death of this grantor,” is a deed, and is not testamentary in character. • The only effect of the recital being to reserve a life estate to the grantor, and thus postpone the possession of the grantee until after the death of the grantor.</p>

<p>A-ppeal AND Ekkor. — Bid of Exceptions in Criminal Prosecution.— Under section 1847 R. S. 1881, requiring all bills of exceptions in a criminal prosecution to be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days, if a bill of exceptions is .not presented within the term at which the trial was had, the record must affirmatively show that time beyond the close of the term was granted.</p>

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

<p>Appeal and Error. — Bill of Exceptions. — The certificate of the judge that the bill of exceptions was presented to him on a certain date for signature, will control a journal entry recited in the record that the bill was presented on a later date. pp. SOB, 306.</p> <p>Same. — Bill of Exceptions. — Where the bill of exceptions was presented to the court within the time allowed it is properly in the record, although it was not finally approved nor filed until after the prescribed time. p. 306.</p> <p>Words and Phrases. — Appeal and Error. — The word “protest” is not equivalent to the word “except” as used in reserving an exception to a ruling of the court, and “ earnestly protesting” against a ruling presents no question on such ruling for review, pp. 306, 307.</p> <p>Instructions. — Irrelevant Instructions. — Criminal Law. — Giving instructions irrelevant to the issues and evidence constitutes reversible error, where such instructions tend to injure the complaining party, pp. 307, 308.</p> <p>Same. — Irrelevant Instructions. — Criminal Law. — Giving an instruction defining self-defense in a prosecution for an assault and battery with intent to commit manslaughter does not amount to reversible error, although the evidence showed that defendant was at no time assaulted nor menaced by any threat, sign or gesture, nor at any time in a situation to apprehend bodily harm. pp. 308, 309.</p> <p>Same.' — Irrelevant Instructions. — Criminal Law. — Error cannot be predicated by defendant on the giving of an instruction defining malice and stating some elements of proof thereof as related to murder, where defendant was convicted of assault and battery with intent to commit manslaughter, p. 309.</p> <p>Instructions. — Assault and Battery. — Criminal Law. — An instruction to the effect that if the jury believed, beyond a reasonable doubt, that defendant committed the assault and battery charged in the indictment, and that at the time he did so he was in a sudden heat of passion, produced by the prosecuting witnesses, or either of them, in the employment of personal violence upon him, and being in such heat, before sufficient time had elapsed for the heat to cool, he, by said assault and battery, without malice, purposed and designed to till, then the defendant should be found guilty of assault and battery with intent to commit voluntary manslaughter, is not bad for obscurity, nor by reason of its failure to qualify the degree of violence defendant must suffer before he became entitled to the principle of self-defense, pp. 309, 310.</p>

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

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

<p>Criminal Law. — Trial.—Presence of Accused. — The filing by defendant of a motion for change of venue and for leave to summon witnesses to appear and testify in support thereof and the proceedings of the court on such motions are neither parts of the trial, nor incidents of it, within the meaning of the provisions of section 1855 Burns 1894, that no person prosecuted for an offense punishable by death, or confinement in the state prison or county jail shall be tried unless present during the trial, p. 330.</p> <p>Same. — Change of Venue. — Separate Trial. — The separate motion of one jointly indicted with another for a change of venue involves and includes a motion for a separate trial, p. 330.</p> <p>Same. — Separate Trial. — Affidavit of One Jointly Indicted. — Appeal and Error. — The affidavit of a person jointly indicted with appellant, but separately tried, is not competent evidence on appeal to show that such person did not demand a separate trial. The record is the proper evidence of the proceedings of the court, p. 330.</p> <p>Venue. — Change Of. — Discretion of Court. — Appeal and Error.— Under the statute, section 1840 Bums 1894, it is discretionary with the court to grant or deny a motion for change of venue, and an order of court refusing a change of venue will not be disturbed on appeal where there is no abuse of discretion shown, pp. 320, 321.</p> <p>Ceiminal Law. — Jury.—Misconduct.—Separation.—New Trial. — No error was committed in overruling a motion for a new trial based upon the alleged misconduct of the jury in separating after they retired from the court room, without leave, where it is shown that the separation was unavoidable ; that they were not out of the custody and sight of the bailiff, and that not a word was spoken to th,em by any person, p. 321.</p>

<p>Highways. — Construction of Free Gravel Roads. — Under sections 5091, 5092 Horner 1897, the board of county commissioners is empowered to levy an additional assessment upon the lands benefited by the improvement of a public highway, when the original assessment proves to be insufficient, pp. 323, 32Jf.</p> <p>Highways. — Free Gravel Roads. — Additional Assessment. — The original order of the board of county commissioners in a proceeding for the construction of a free gravel road is not a final determination of the question of benefits accruing to adjacent landowners, and does not preclude the board from making a second assessment to meet a deficit in the cost of such improvement, p. 824.</p> <p>Same. — Free Gravel Roads. — Additional Assessment. — Statute of Limitations. — Where the original assessment of benefits to adjacent lands was not sufficient to meet the entire cost of the improvement, and proceedings were instituted by the board of county commissioners for an additional assessment of such lands, the six-years statute of limitations has no application, p. 825.</p> <p>Same. — Free Gravel Roads. — Additional Assessment to Reimburse County. — An additional assessment to meet the cost of constructing a free gravel road cannot be defeated by the fact that the cost of the improvement had been fully paid by the county, and that the purpose of the assessment was to reimburse the county, p. 325.</p> <p>Appeal and Error. — Evidence not in Record. — New Trial. — Review. —Where the reasons assigned in a motion for a hew trial depend upon the evidence, and the evidence is not in the record, the ruling of the court will not be reviewed on appeal, p. 325.</p> <p>Same. — Special Finding. — Joint Assignment of Error. — Where an exception is made jointly to two or more conclusions of law, the exception must fail if any one of the conclusions is correct, p. 826.</p>

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

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

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

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

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

<p>Wills. — Construction.—Legacy.—Vesting of Estate. — A bequest of 84,000 to testator’s daughter, and providing that “ If she shall die leaving no child surviving her, then said §4,000 shall be equally divided among my other heirs,” refers to the death of such legatee during the lifetime of the testator.</p>

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

<p>Municipal Corporations. — When Gity Becomes Liable on Contracts for Public Improvements. — Statute Construed,.- — Under the act of March 8, 1889, known as the “Barrett Law,” a city is not liable on contracts for the construction of certain public sewers until it has issued and sold improvement bonds, collected assessments, or otherwise realized from the property benefited the amounts to be paid out to the contractors, p. 370.</p> <p>Same. — Improvements.—Complaint by Contractor for Extras. — Sufficiency. — A complaint for extra work and materials by one who contracted with the city to make certain public improvements, which does not show that the extra work and materials were performed and furnished upon orders in writing signed by the engineer and approved by the common council, as required by the terms of the contractas bad on demurrer, pp. 370, 371.</p> <p>Same. — Improvements.—Liability of City. — A city cannot render itself liable for work done, and materials furnished, “beyond the contract,” in the construction of improvements which were to be paid for by assessments on the lots and lands to be benefited, p. 371.</p>

<p>Husband and Wife. — Principal and Surety. — Bills and Notes.— Married Women. — A note executed by a husband and wife in renewal of a note for money loaned the wife and used by the husband, executed prior to the act of 1881 (sections 6960-6970 Bums 1894), enlarging the rights of married women, is a valid and binding obligation of the husband, although void as to the wife, whether he executed the same as principal or only as surety for his wife. pp. 373-375.</p> <p>Principal and Surety. — Bills and Notes. — The relation of suretyship is fixed by the arrangement and equities between the debtors, and is determined by inquiring who received the consideration of the contract, or who, according to the arrangements between the parties, ought to pay the debt. p. 376.</p> <p>Same. — Husband and Wife. — Bills and Notes. — Where a husband and wife executed a note for money loaned the wife, and used by the husband, the husband is the principal, and the wife the surety, p. 376.</p> <p>Same. — Bills and Notes. — Consideration.—Husband and Wife — Anote signed by a wife with her husband in renewal of a note for money loaned the wife and used by the husband, executed prior to the act of 1881 (sections 6960-6970, Burns 1894) enlarging the rights of married women, is not without consideration as to the wife, although the original note was void as to her, as the consideration moving to the husband was sufficient to support said note against all who executed the note with him. pp. 376, 377.</p> <p>Bills and Notes. — Consideration—Mortgages.—The consideration sustaining a note is sufficient to sustain a mortgage securing the same which was executed contemporaneously with the note, and as a part of the same transaction, p. 377.</p> <p>Principal and Surety. — Married Women. — Contracts of Suretyship. —How Avoided. — Contracts of suretyship entered into by a married woman are voidable, not void, and can only be avoided by such married woman and her privies in blood, representation, or estate. pp. 377, 878.</p> <p>Same. — Husband and Wife.— Married Women. — Contracts of Suretyship. — Bills and Notes. — A husband and wife executed a note prior to the passage of the act of 1881 enlarging the rights of married women, for money loaned the wife, and used by the husband. The note was renewed in 1881, and again in 1896, and secured by a mortgage on the wife’s separate real estate. Plaintiffs, judgment creditors of the wife, brought suit -to set aside the mortgage as fraudulent. Held, that the original note was void as to the wife, but valid as to the husband; that in the execution of the renewal note and mortgage the contract as to the wife was one of surety-ship; that the note was not without consideration as to her, since the consideration moving to the husband was sufficient to support the note against the surety; that while the note and mortgage might be voidable as to such surety on the ground of coverture, it was valid as to plaintiffs, pp. 878-378.</p>

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

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

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

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

<p>Pleading. — Complaint for Damages for Wrongful Appropriation of Real Estate. — In an action against a railroad company for tbe wrongful appropriation ol certain lands, a complaint alleging that plaintiff is the owner in fee, and was in peaceable possession under claim of title of described lands of a certain value, and that defendant wrongfully appropriated such lands to its own use, whereby damages were sustained by plaintiff, for which damages judgment is demanded, states a cause of action sufficient to withstand a demurrer, p. 424.</p> <p>Practice. — Complaint for Wrongful Appropriation of Land. —Motion to Strike Out. — In an action against a railroad company it is not error to refuse to strike from the complaint an averment that in the use by the railroad company of the switch or side-track constructed by it on the land appropriated, “ a great noise was kept up, and that such use occasioned confusion and detriment to the plaintiff.” p. 424.</p> <p>Practice. — Overruling Motion to Strike Out. — When Harmless. — The refusal of the court to strike out a part of a complaint alleging that damages resulted from particular facts is harmless, where the special verdict returned by the jury shows that no damages were allowed on that account, p. 424.</p> <p>Same. — Motion to Paragraph Complaint. — When Properly Overruled. — A motion to separate complaint into paragraphs is properly overruled, where but a single cause of action is stated, p. 4%4-</p> <p>Appeal. — Error in Overruling Motion to Paragraph —When Harmless. — Error in overruling a motion to require complaint to be separated into paragraphs is not reversible unless it appears that the appellant has been deprived of some substantial right, p. 424.</p> <p>Same. — Special Verdict. — Weight of Evidence. — Where a special verdict is returned, and a new trial is demanded on the ground that the verdict is not sustained by sufficient evidence, such special verdict is entitled to the same presumptions in its favor as are extended to a general verdict. The Supreme Court will not weigh the evidence, nor attempt to decide a conflict in the testimony, p. 427.</p> <p>Deed.— How, Premises Sought to be Described May be Identified.— For the purpose of identifying the premises sought to be described reference may be had to other conveyances, plats, lines, or records, well known in the neighborhood, or on file in public offices, p. 42s.</p> <p>Evidence. — Deed.—Description.—Reference to Addition of Town.— Where a deed, introduced in evidence for the purpose of locating a particular piece of land, locates the starting point of the description of the land by reference to an addition .to a town, it is not necessary to introduce in evidence the plat of the addition, the existence and location of which is not in dispute, p. 429.</p> <p>Adverse Possession. — Erection and Maintenance of Telegraph Dine by Railroad Company. — The erection of a line of telegraph poles, and the maintenance and use of a telegraph line along the same by a railroad corporation, in the absence of other evidence of the intention of the railroad company to appropriate the strip of land between the telegraph poles and the right of way of the company, are not sufficient to authorize the conclusion that the interjacent strip of land has been appropriated by- the railroad corporation, so as to give the corporation title thereto after twenty years, p. 429.</p> <p>Appeal and Error. — Special Verdict. — Improper Interrogatory.— Harmless Error. — Where a question and the answer thereto in a special verdict are improper, the error, if any, is harmless if the verdict is sufficient regardless of such question and answer., p. 430.</p> <p>Same. — Special Verdict. — When Party Cannot be Heard to Complain of Answer to Interrogatory.- — A party cannot be heard to complain of an answer which is'directly responsive to a question submitted by him in a special verdict. pp>. 430, 431.</p> <p>Deed. — Mistake.—Correction.—Where a mistake was made in a deed, a deed of correction and confirmation relates back to the time of the original conveyance, no new rights having intervened, p. 431.</p>

<p>Trespass. — License to Cut Standing Trees. — Death of Licensor.— Revocation. — Standing trees may be the subject of sale by parol, so as to give the purchaser a license to go upon the land to cut and remove them, but the death of licensor before the license is executed effects a revocation of such license, p. 43%.</p> <p>Boundaries. — Surveys.—Estoppel.—The owner of land who causes a survey to be made according to law, or consents thereto, loses none of his rights by such survey, and is not estopped from claiming title to his land, notwithstanding such survey remains unappealed from; as an official survey is prima facie evidence in favor of the corners so established and the lines so run, and nothing more. pp. 433, 434-</p>

<p>Judgment. — Motion for New Trial. — When Does Not Operate as Stay of Execution. — A motion for a new trial filed after entry of judgment, and within the time allowed by law, does not operate as a stay of execution on the judgment.</p>

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

<p>Municipal Corporation. — Annexation of Territory. — Taxation.— Estoppel. — Where a corporation, having notice of the attempted annexation of its property to a city, received benefits from the city in the way of fire and police protection for more than three years, and permitted its property to be sold for city taxes without calling in question the right of the city to levy the taxes, it will not be permitted to invoke the invalidity of the act of annexation for the purpose of escaping taxation, pp. 443-4-53.</p> <p>Special Finding. — Conclusions of Law. — Ultimate Fact. — Where facts stated in a special finding admit of but one conclusion and lead to but one result, the deduction therefrom is a conclusion of law and not an ultimate fact. pp. 453, 453.</p>

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

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

<p>Boundaries.— Establishment. — ■ Injunction.— Complaint.— Plaintiff brought suit to enjoin an adjoining landowner from entering upon her lands and appropriating to his own use a certain strip of land. The complaint alleged that plaintiff was the owner of a certain described tract of land, and that adjoining same on the east was the land owned by defendant; that the respective owners thereof had agreed upon a line dividing such tracts, and constructed a partition fence thereon more than twenty years before the commencement of the action, which had ever since been recognized as the true line, and that defendant had wrongfully entered upon plaintiff’s land at a point ten feet west of said line for the purpose of locating a partition fence. Held, that the complaint sufficiently alleged that plaintiff was the owner of the land to the partition fence, pp. 470, 471.</p> <p>Same. — Adverse Possession. — Pleading.—A complaint in an action to enjoin an adjoining landowner from encroaching upon the lands of plaintiff, which discloses a continued, notorious, exclusive, and adverse occupancy of the land by plaintiff and grantors for a period of over twenty years, is not bad for failure to allege that the occupancy was under claim or color of title, pp. 471. 47%.</p> <p>Appeal and Error.. — Evidence.—Where there is evidence sufficient to support the finding the Supreme Court will not disturb the judgment upon the weight of the evidence, p. 47%.</p> <p>Evidence. — Adverse Possession. — Declaration of Grantor. — The declarations of grantor made at the time of negotiation and sale of real estate as to the boundaries thereof are admissible in evidence in an action by grantee to enjoin an adjoining owner from encroachment, where the title of plaintiff depended upon adverse possession. pp. 472-474.</p>

<p>Taxation. — Corporations. — Listing Omitted Property by County Assessor. — Where a private corporation had, in good faith, made out and delivered to the proper township assessor a verified schedule of its property, as provided by section 73 of the general tax law of 1891 (Acts 1891, p. 241), the failure thereafter of the county board of review to make any assessment for taxes against the property, did not preclude the county assessor from listing for taxation the property of such corporation, pp. jfiO-Jfid.</p> <p>Same. — Listing Omitted Property by County Assessor. — The failure of the county assessor, on listing omitted property for taxation, to file in the county auditor’s office a statement of his reasons for listing the property will not render the assessment invalid, where there is no other assessment against the owner of such omitted property, pp. Jfl8, 479.</p>

<p>Officers. — County Treasurer. — Appointment to Fill Vacancy. — Term. Construction of Act of March 8, 1897. — A county treasurer elected at the general election in 1896 qualified and took the office on the 9th of Januaiy, 1897, and continued to act until October 11, 1897, when he was removed and another was appointed to fill the vacancy. At the general election in 1898 a third person was elected, who qualified before January 1, 1899. Held, that, under the act of March 8,1897, (Acts 1897, p. 288), construed with section 2, article 6 of the Constitution, and section 5563 Horner 1897, the person elected at the general election in 1898 was entitled to the office on January 1,1899.</p>

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

<p>Appeal and Error. — New Trial. — Evidence Not in Record. — An assignment of error, in overruling a motion for a new trial, will not be reviewed, where the causes assigned for a new trial depend upon the evidence which is not brought into the record, pp. 490, 491.</p> <p>Practice. — Motion for Venire De Novo. — When Made.- — A motion for a venire de novo made after the rendition of the judgment cannot be considered, p. 491.</p> <p>Wills. — Construction.—Devise.—Where by the terms of a will it is clear that the testator intended to devise all of a tract of land to certain persons, and the tract is found to contain more acres than the will calls for as shown by the sum of the acres devised to the difierent persons, the excess will be apportioned among the devisees in proportion to the number of acres named for each in the will. pp. 491-493.</p> <p>Survey.- — Appeal.—Burden of Proof. — The one who appeals from a survey of land, under section 5955 Horner 1897, has the burden of showing that the survey appealed from was incorrect, p. 493.</p>

<p>Erqm tlie Bartholomew Circuit Court.</p>

<p>County. — Claims.—Jurisdiction of Board of Commissioners. — The filing of a claim against a county with the auditor, and his presenting the same to the board of county commissioners,is all that is required to give the board jurisdiction to act thereon, p. 50%.</p> <p>Same. — Claims.—Allowance.—Appeal.—Where the board of county commissioners had jurisdiction in the allowance of a claim, an appeal vacates the allowance and the cause stands for trial de novo, p. 50%.</p> <p>Saxe. — Claims Refiled After Disallowance. — Jurisdiction of Board of Commissioners. — Where a claim against a county for work and material was filed with the board of commissioners, and by them disallowed, and no appeal was taken, the board at a subsequent session had no jurisdiction to allow a claim presented for the same work and material, p. 503.</p> <p>Same. — Claims.—Jurisdiction of Board of Commissioners. — Appeal. —Unless the board of county commissioners has jurisdiction to act on the merits of a claim presented, the circuit court, on an appeal from an allowance by such board, will not have jurisdiction to render judgment against the county, p. 506.</p>

<p>Appeal and Error.- — Special Verdict. — Practice.—Available error cannot be predicated as to the ruling of the court upon plaintiff’s objection to defendant’s request for a special verdict, where the objection was only to “the filing of the defendant’s request for a special verdict,” and no demand was made by plaintiff for a general verdict, either before the introduction of evidence, or after-wards, and no objection was made to the special verdict after the return thereof, and no motion was made for a venire de novo. pp. 509, 510.</p> <p>Street Railways. — Injuries to Trespasser. — Plaintiff, a boy eight and one-half years of age, being unable to get into an open electric street car on account of the crowded condition thereof, stood on the side of the car not intended-for passengers, and on which strips were placed to prevent the ingress or egress of passengers, with his feet on the boxing of the axle, and held on to a portion of a seat with his hands. He rode in a stooped position three-fourths of a mile, when, being unable to retain his hold, he fell and was run over by thó wheels of the car, and injuréd. None of the employes of the train saw the boy hanging on the car when it was in the act of starting nor while under way, but might have seen him, if they had made an examination of that part of the car. Plaintiff did not pay his fare, but intended to do so when called upon. Held, that plaintiff -was not a passenger upon defendant’s cars, to whom it owed the duty of safe carriage and immunity from injury. pp.510-513_</p> <p>Same. — Injuries to Trespassers. — Infants.—Special Verdict. — Where the special verdict in an action against a street railway company for personal injuries shows that plaintiff was wrongfully upon the car at the time of the injury, the fact that he was only eight and one-half years of age did not make him any less a trespasser, p.513.</p> <p>Statutes. — Title.—Constitutional Law. — Special Verdict Law. — The act of March 11, 1895, amending the practice act, and providing for special verdicts, entitled “An act to amend section 889 of an act concerning proceedings in civil cases, approved April 7, 1881, and designated as section 546 of the Revised Statutes of 1881,” sufficiently expresses the subject in the title, pp. B14-, 515..</p> <p>Special Verdict. — Constitutional Law. — Bight of Trial by Jury. — . The act of March 11, 1895, amending the practice act, and providing for special verdicts, is not unconstitutional, as violating the right of trial by jury. p. 515.</p> <p>Interrogatories to Jury. — Practice.—No error was committed in refusing to submit certain interrogatories to the jury prepared and tendered by counsel, where the interrogatories submitted covered every material question of fact in the case. p. 516.</p> <p>Instructions. — Special Verdict. — Where a special verdict is requested no instructions are proper, except such as are necessary to inform the jury as to the issues made by the pleadings, the rules for weighing and reconciling the testimony, and who has the burden of proof as to the facts to be found, with whatever else may be necessary to enable the jury clearly to understand their duties concerning such special verdict and the facts to be found therein, pp. 516, 517.</p>

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

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

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

<p>Erom tlie Marion Circuit Court.</p>

<p>Receivers. — Appointment.—Notice.—Fraudulent Conveyances. — The court has no jurisdiction to appoint a receiver in an action to set aside a conveyance as fraudulent, and for the appointment of a receiver, without notice, and before summons is issued on such complaint.</p>

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

<p>Supreme Court. — Jurisdiction.—Cause Will Not be Transferred from Appellate to Supreme Court at Instance of an Amicus Curiae. —The question of the constitutionality of a statute is not “duly presented ” within the meaning of section 1336 Burns 1894, so as to give jurisdiction to the Supreme Court and require a cause to be transferred from the Appellate Court, where the question of constitutionality is not raised except in a brief on appeal filed by an amicus curiae.</p>

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

<p>Erom tke Oass Circuit Court.</p>

<p>Forgery. — Affidavit and Information. — An affidavit and information charging that defendant “altered, forged, and counterfeited a certain ■written receipt ” is bad for repugnancy.</p>

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

<p>Towns. — Annexation of Territory. — Order of County Commissioners. —Collateral Attach. — The board of county commissioners has jurisdiction to determine the sufficiency of a petition of town trustees, under section 4426 Bums 1894, for the annexation of territory, and where its record shows that the petition came on to be heard, and it was found that due notice had been given, such record is conclusive, and is not subject to collateral attack because of any irregularity in the election or qualification of the town trustees who petitioned for the annexation, or because of any failure to serve with notice some landowners within such territory, pp. 574-579.</p> <p>“ Same. — Annexation of Territory. — Notice to Landowners. — Collateral Attach. — Persons who were not served with notice of a proceeding for the annexation of territory to a town, as provided by section 4426 Burns 1894, but who unite in a joint attack thereon with others who were so served, cannot in that proceeding maintain the attack upon any grounds which are not available to their co-plaintiffs. pp. 574-579.</p> <p>Pleading. — Answer.-—Demurrer.—Where a complaint fails to state a cause of action, it is never reversible error to overrule a demurrer to an answer thereto, p. 580.</p> <p>Same. — Argumentative Denial. — Demurrer.—A denial is not demurrable because argumentative, p. 580.</p> <p>Towns. — Annexation of Territory. — When Owners of Lands Estopped from Questioning Validity of Annexation Proceedings. — Where an owner of territory annexed to a town stands by and permits the municipality to expend large sums of money in building streets, alleys, and sidewalks, enhancing the value of his property, he will be estopped from disputing the validity of annexation proceedings of which he had notice, pp. 580, 581.</p> <p>Same. — Annexation of Territory, — Validity of Proceedings. — The proceedings to annex territory to a town are not rendered invalid by the facts that the certificate of election of the town trustees presenting the petition was not filed until the validity of their acts had been called in question in another suit, which had been dismissed, that taxes paid by owners of the annexed land exceeded the improvements made thereon, and that the owners held in fee the cemetery lots in such land. p. 581.</p>

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

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

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

<p>Bonds. — Attachment.—Construction.—An undertaking in an attachment proceeding containing all the provisions required by statute is to be strictly construed in favor of the obligors the same as a bond containing such provisions would be in the absence of section 1235 Burns 1894 providing that a defective bond is to be read, construed, and enforced the same as if it contained all the conditions and provisions required by the statute, pp. 62J¡., 625.</p> <p>Same. — Attachment.—Construction.—A condition in an undertaking in attachment duly to prosecute the proceedings in attachment, is simply a condition to prosecute the attachment proceedings to a final judgment, and is not the same as a condition to prosecute without delay, or diligently to prosecute, p. 626.</p> <p>Attachment. — Affidavit.—Proof.—The grounds for attachment set forth in the affidavit in attachment are not taken as conclusive against the attachment defendant, but the same may be put in issue, and, to sustain the attachment proceedings, must be established by a preponderance of the evidence, p. 626.</p> <p>Same.— Failure to Sustain Proceedings. — Action on Bond. — Where the plaintiff fails to sustain his proceedings in attachment he is concluded from saying that such proceedings were not wrongful and oppressive, although he recovered judgment in the main action. p. 626.</p> <p>Attachment. — Failure to File New Bond with Amended Complaint. ■ — The failure of plaintiff to file a new undertaking in an attachment proceeding upon filing an amended complaint introducing a new cause of action cannot be questioned in an action on the bond after final judgment sustaining such new cause of action. p. 627.</p> <p>Same. — Action on Bond. — Where Proceeding Was Wrongful and Oppressive in Part. — The obligors in an undertaking in an attachment proceeding are not liable thereon where the proceeding was wrongful and oppressive in part. pp. 627, 628.</p> <p>Same. — Action on Bond. — Judgment as to Part of Amount. — Wrongful Appeal. — An attachment defendant is not entitled to a recovery on the undertaking on the ground that an appeal to the Supreme Court by the attachment plaintiff was wrongful and oppressive, where plaintiff obtained judgment in attachment as to part of the amount claimed, and appealed from the disallowance of the full amount, and the judgment as to the partial allowance was sustained. pp. 627-630.</p> <p>Same. — Action on Bond. — Wrongful Appeal. — Effect of Appeal on Judgment. — Where plaintiff obtained judgment in attachment as to part of the amount claimed, and appealed from the disallowance of the full amount, filing an ordinary appeal bond, such appeal will not suspend the operation of the judgment so far as it had the effect to release that part of the amount attached in excess of the judgment, and the attachment defendant is not entitled to recover on the attachment undertaking for the use of the amount attached in excess of the judgment during the time the case was pending in the Supreme Court, on the ground that the appeal was wrongful and oppressive, pp. 630-633.</p> <p>Appeal.— Bond. — Attachment.—That part of section 650 Burns 1894 relating to damages in an “appeal taken from a judgment for the recovery of real property or the possession thereof” or for ‘ ‘ the recovery or return of personal property ” has no application to an appeal from a judgment in a proceeding in attachment and garnishment, pp. 632, 633.</p> <p>Estoppel. — Attachment.-—Appeal.—Defendant in an action on an attachment undertaking for damages for the loss of the use of property pending an appeal to the Supreme Court from a judgment disallowing part of a claim in attachment will not be estopped from denying the sufficiency of the appeal bond to hold the property by the mere fact that the property attached was not released pending the appeal, pp. 633-635.</p>

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

<p>Maesia&e. — Extinguishment of Debts, — Husband and Wife. — A husband cannot maintain an action against his wife’s estate for an indebtedness created before their marriage, p. 639.</p> <p>Husband and Wife. — Advancement to Wife. — It will be presumed, in the absence of evidence, that payments made by the husband upon the debts of his wife were made as an advancement to her by virtue of her marital rights, anrl she is not bound to repay the same. pp. 639, 640.</p> <p>Same. — Principal and Agent. — Recovery of Money Expended in Management of Wife’s Estate. — Burden of Proof. —in order to sustain a claim by a husband against his wife’s estate for money used by him in payment of her debts and other expenses incident to the management of her estate, the burden rests upon the husband of proving that he used his own money, p. G40.</p>

<p>Master, and Servant. — Wrongful Discharge of Servant.- — Complaint. —A complaint in an action by an employe for his wrongful discharge, alleging a violation of the contract of employment, the amount plaintiff would have earned under the contract, and demanding judgment therefor, sufficiently alleges the damages so as to make the complaint good on demurrer, p. 642.</p> <p>Same. — Wrongful Discharge of Servant. — Complaint.—In an action ' by an employe for his wrongful discharge the complaint need not show that plaintiff could not, with reasonable care and diligence, have obtained other equally profitable employment during the remainder of the life of the contract, since that is a matter of defense. p. 648.</p> <p>Same. — Disobedience of Servant. — Discharge.—The failure of an employe to observe his employer’s rules for conducting business, of which rules the employe had no notice, is not sufficient reason for discharging an employe before the expiration of the time for which he was employed, pp. 648, 644.</p> <p>Same. — Disobedience of Servant in Immaterial Matters. — An employer has no right to discharge an employe before the expiration of the term of employment for trivial and unimportant acts of disobedience or negligence, p. 644-</p> <p>Same. — Breach of Contract of Employment. — When Action May be Brought. — An employe who has been wrongfully discharged may bring suit immediately upon the breach of the contract of employment and recover his full damages to the end of the term for which he was employed, p. 645.</p> <p>Instructions. — Must be Considered as a Whole. — Where the instructions to the jury, taken as a whole, state the law correctly, the cause will not be reversed on appeal, though the whole of the law upon a particular head is not fully stated in one or more of the separate parts of the charge, p. 64.6.</p> <p>Master and Servant. — Breach of Contract of Employment. — Pleadings. — Set-Off.—In an action for breach of contract of employment, the fact that plaintiff earned wages after he was discharged by de-' fendants, can be set up by way of partial answer, but cannot be ' pleaded as a set-off. pp. 647, 648:</p> <p>Appeal and Error. — Instructions. — Presumption. — The presumptions on appeal indulged in favor of the action of the trial court extend as well to the giving of instructions as to any other of the proceedings, p. 649.</p>

<p>Fraudulent Conveyance. — Evidence.—Sufficiency.—In an action to set aside a conveyance as fraudulent grantor testified that he had received from the grantee several items of cash and personal property; that these had not supplied the consideration for the conveyance, but; that he had assigned a certain judgment in payment or as security therefor; that grantee gave nothing for the deed; that he told grantee of his indebtedness to plaintiffs, and grantee “said he wottld do them up. ” Held, that the evidence was sufficient to set aside the conveyance as fraudulent against creditors, pp. 651, 652.</p> <p>Evidence. — Review.—Special Finding. — Where there is evidence which, if standing alone, supports the finding of the trial court, it is the duty of the Supreme Court to accept such evidence and disregard all evidence in conflict therewith, p. 652.</p>

<p>Criminal Law. — Affidavit.—Baseball.—Sunday.—An affidavit in a prosecution for playing baseball on Sunday where an admittance fee is charged, in violation of section 208''' Burns 1894, is not bad for failing to state the-nameof some person who paid an admission fee. pp. 653 656.</p> <p>Same. — Baseball.—Sunday.—Section 2087 Burns 1894, prohibiting any person from playing baseball on Sunday “where any fee is. charged” is not void for uncertainty as to the meaning of the word “fee”, or by whom it is to be paid. pp. 656, 657.</p> <p>Statutory Construction. — Constitutional Law. — The rule that a penal statute will be strictly construed does not apply in determining the constitutionality thereof, p. 657.</p> <p>Constitutional Law.— Baseball. — Sunday. — Section 2087 Burns 1894 prohibiting any person from playing baseball on Sunday, where a fee is charged, is not class legislation within the meaning, and in violation of the fourteenth amendment of the United States Constitution providing that “no state shall make or enforce .any law which shall abridge the privileges or immunities of citizens, nor deny to any person, within its jurisdiction the equal protection of the laws”, nor of article 1, section 23 of the State Constitution providing that “ the-General Assembly shall not grant to any citizen, or class.of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” pp. 657-659.</p> <p>Cbiminal Law.— Police Power. — Baseball.—Sunday.—Section 2087 Burns 1894 prohibiting persons from playing baseball on Sunday where a fee is charged is a valid hxercise of the police power of the State, pp. 659, 660.</p> <p>Same. — Penalties.—Constitutional Law. — Where several different acts are prohibited by law, a difference in the penalties for violations of such several acts cannot be said to constitute a breach of the constitutional provisions intended to secure equal rights to all citizens, pp. 661, 662.</p> <p>Same. — Penalties.—Review.—The graduation of penalties for offenses, differing in their circumstances and surroundings is a matter wholly within the discretion of the legislature, and will not be reviewed by the courts where an abuse of discretion is not shown. pp. 661, 662.</p>

<p>Complaint. — Personal Injuries. — Description of Injuries. — Motion to Make More Specific. — A complaint against a railroad company for damages, alleging that plaintiff, while attempting to enter a passenger car, sustained severe and permanent injuries, described as the displacement of the right ovary, and the rupture of the organs of the “pelvic and ileocolic and right inguinal region, and the straining of the right fallopian tube, and a disarrangement of the uterus,” etc., is not so vague and uncertain in the description of the injuries sustained as to be subject to a motion to make more specific. pp. 665-667.</p> <p>Appeal and Error. — Assignment of Error. — Where appellant assigned the action of the court in overruling separate demurrers to two paragraphs of complaint, “that the court erred in overruling appellant’s demurrer to appellee’s complaint,” the complaint will be considered as assailed as an entirety, and both paragraphs must be shown to be insufficient to render the assignment available, p, 667.</p> <p>Practice. — Harmless Error. — Special Verdict. — Appeal and Error.— Where the special verdict followed the- materal facts as averred in the second paragraph of complaint, an erroneous ruling on a demurrer to the first paragraph will not constitute reversible error on appeal, pp. 667, 668.</p> <p>Contributory Negligence.— Damages.— Railroads. — Complaint.— A complaint against a railroad company for damages on account of injuries sustained by plaintiff in attempting to enter defendant’s passenger car, alleged that defendant neglected to construct a platforni at its station where plaintiff took passage; that defendant stopped its train at a place where the distance from the ground to the lowest step on the car was three feet, and invited the plaintiff to board the car in such position without furnishing a stool to assist her in reaching the steps; that plaintiff requested that a stool be furnished for such purpose, but the servants in charge of the train assured her that they would assist her to board the train in safety, and in making an effort to enter the car without any fault or negligence on her part she was injured. Held, that the corn-plaint does not show, as a matter of law, that plaintiff was guilty of contributory negligence, pp. 668-671.</p> <p>Interrogatories to Jury. — When Properly Rejected. — Interrogatories which do not call for findings of essential facts within the issues are properly rejected, p. 672.</p> <p>Same. — When Properly Rejected. — Special Verdict. — Where a special verdict is so framed, by means of interrogatories, that the jury can find, under the evidence, all of the material facts of the case, neither party can successfully complain of the action of the court in rejecting interrogatories submitted, p. 673.'</p> <p>Same. — Conclusions of Law. — Special Verdict. — Incorporating in a • , special verdict interrogatories requiring the jury to state conclu- . sions of .law instead of .facts is harmless, p. 673.</p> <p>Special Verdict. — Omission of Formal Conclusion. — Where the facts in a special verdict are properly stated the. omission of the formal conclusion will not vitiate it. pp. 673, 674.</p> <p>Appeal and Error. — Record.—Instructions.—Instructions which are not made part of the record by bill of exceptions, nor under the provisions of seotion 544 Burns 1894, are not subject to review on appeal, p. 674.</p> <p>Contributory Negligence. — Special Verdict. — Conclusion.—Where the facts disclosed by a special verdict are such as would warrant ■ reasonable men in drawing two inferences as to the contributory negligence of plaintiff, and the jury found the ultimate fact of contributory negligence in favor of the plaintiff, such inference will be accepted by the court as conclusive, pp. 674-677.</p> <p>Appeal and Error. — Excessive Damages. — Where appellant challenged the damages assessed by an assignment in a motion for a new • trial that the damages were excessive, the Supreme Court will look to the evidence, and not to the.special verdict to determine such question, pp. 677, 678.</p> <p>Same. — Excessive Damages. — The mere fact that damages assessed may appear to the Supreme Court to be excessive will not alone justify it in disturbing the judgment, unless the assessment is so large as to-induce the Relief that the jury was actuated by prejudice, partiality, or. corruption, p. 678.</p> <p>Same. — Record.—Misconduct of Jury. — Alleged misconduct of the . jury cannot be reviewed on.appeal where the affidavits filed upon the trial of that issue have not been brought into, the record by a bill of exceptions. p. 679.</p> <p>Same. — Exclusion, of Evidence. — Exceptions.—How Saved. — In order to present any question on appeal as to the, action of the court in excluding evidence, the record must clearly show that the witness . was asked a pertinent question, and, upon objections being .interposed, that a statement was made bythe party offering the evidence of what was proposed to be proved by the witness in answer to the question, pp. 679, 680.</p>

<p>Master and Servant. — Fellow Servant. — Damages.—Personal Injuries. — Plaintiff was employed to assort and grade pieces of timber to be used as wheel rims, and to do other common labor about defendant’s factory. H., who was employed to do similar work, and who had been authorized by the foreman of that department to direct the men as to the details of the work while he was temporarily absent in another part of the building, instructed plaintiff to remove some lumber from the room in which the rims were . stored. H. assisted plaintiff in removing the lumber, and through his negligence alone the rims fell upon plaintiff and injured him. Held, that H. was acting solely as a fellow servant, and not as a representative of defendant, and as his negligence was the sole cause of the injury, plaintiff cannot recover, pp. 680-688.</p> <p>Same. — Felloiv Servant. — Employers’ Liability Aet. — Plaintiff is not entitled to recover under subdivision 2 of section 1 of the Employers’ Liability Act (Acts 1893, p. 294) for a personal injury sustained while in the employ of defendant, where the injury was caused wholly by one engaged with him in the work, but who was placed in charge of the men by the foreman while he was temporarily absent in another part of the building, pp. 688-691.</p>

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

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

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

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

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

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

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

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

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