Volume 154 — Indiana Reports

<p>Continuance. — Absence of Witness. — Affidavit.—Criminal Law. — An affidavit for a continuance on account of the absence of a witness must affirmatively show that the applicant believes the facts to be true which he alleges he can prove by thp absent witness, p. S.</p> <p>Same. — Absence of Witness. — Affidavit.—Criminal Law. — An affidavit for a continuance on account of' the absence of a witness, alleging that the applicant, who had been confined in jail for four months prior to the time of the trial, had placed in the hands of one of his attorneys the names of his witnesses, and the witness in question was not subpoenaed for the reason that the attorney was informed, as he understood, that a subpoena would be issued for said witness and sent to the sheriff of an adjoining county by another attorney does not show that due diligence was used to obtain the absent ¡witness, pp. 4-6.</p> <p>Same. — Absence of Witness. — Affidavit.—Criminal Law. — An affidavit for a continuance because of the absence of a witness which does not show that there is any probability of procuring the testimony of the witness within a reasonable time is insufficient, p. 6.</p> <p>Criminal Law. — Evidence.—Sufficiency.—Appeal and Error. — Where in the trial of one charged with larceny the evidence was of such a character as to warrant a reasonable conclusion that defendant was connected in some manner with the larceny, the Supreme Court will not reverse a judgment of conviction on the insufficiency of the evidence, pp. 6-9.</p>

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

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

<p>Judgments. — Review.■—Complaint.— Exhibits. — A complaint to review a judgment must state enough of the pleadings or the nature or character thereof to present the question of the alleged error without resorting to the exhibits filed with the complaint, pp. 24-26.</p> <p>Same. — Review.—Complaint.—A complaint to review a judgment for error of law must specifically set forth the ruling of the court relied upon as error, and the facts upon which such ruling is based, pp. 26, 27.</p>

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

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

<p>County Commissioners. — Appeal.—Abandonment of Appeal.— Dismissal. — An appeal to the circuit court from the action of the county commissioners in the establishment of a free gravel road was properly dismissed, where after filing an appeal bond the appellants instituted an action to enjoin the construction of the road and delayed taking any further steps to perfect their appeal for a period of ten months, pp. 39-42.</p> <p>Appeal and Error. — Record.—The Supreme Court will not reverse the action of the circuit court in dismissing an appeal from the proceedings of the county commissioners establishing a free gravel road on account of the insufficiency of the affidavit and appeal bond where the affidavit is merely copied in the record by the clerk without a bill of exceptions or order of court, pp. 42, 43.</p>

<p>Dedication. — Acceptance.—Highways.—To constitute a dedication of land for highway purposes, there must he an offer of the land by the owner, and acceptance of such offer by the public or by the proper local authorities, p. J/6.</p> <p>Same. — Revocation.—The owner of certain real estate offered to dedicate a part thereof to the public for highway purposes. Before the offer was accepted such owner sold and conveyed the real estate, the deed of conveyance containing no reservation of the part so offered to the public. Held, that the conveyance constituted a revocation of the offer to dedicate, pp. Jfi, Ifl.</p>

<p>Appeal. — Transcript.— Must Be Authenticated by Seal of Trial Court. — The transcript of the record of the proceedings in the trial court must be authenticated by the seal of such court, or it will not be considered on appeal.</p>

<p>Railroads. — Liability for Injury of licensee. — A mere licensee injured in the dark by falling into a pit while crossing certain premises of a railroad company cannot recover damages of such company, unless the injury is shown to be wilful on the part of the company.</p>

<p>Appeal and Error. — Parties.—Parties to a judgment whose interests are adverse to that of one appealing from such judgment must be made parties to the appeal, p. 66.</p> <p>Same. — Record.—Agreement.-—An agreement in open court that “all matters material in evidence might be proved under the general denial to the pleadings filed, the same as if specially pleaded by cross-complaint, answer, or reply,” did not withdraw the cross-complaints filed when the agreement was made, and in the absence of such pleadings-from the record, upon which questions raised by the assignment of errors depend, no question is presented, pp. 56, 57.</p>

<p>Negligence. — Personal Injuries. — Complaint. —Municipal Corporations. — A complaint in an action against a city for personal injuries which, alleges that defendant by its servants and agents made an excavation in a public street and left it uncovered and unguarded, and that plaintiff while traveling over the street, exercising due care, and having no knowledge of the existence of the excavation, fell into the same, and was injured, states a cause of action. pp. 59, 60.</p> <p>Special Verdict. — Judgment.—Personal Injuries. — Municipal Corporations. — A special verdict in an action against a city for personal injuries found that the city by its workmen and agents removed certain wooden hitching-posts along the line of a public street, and left a hole from two to four feet deep, and one foot wide, with perpendicular walls, unguarded, in front of the store in which plaintiff was employed; that plaintiff while walking from the store to the street, after dark, for the purpose of entering a carriage to go home, not knowing of the existence of the hole, stepped into it, and was injured. Held, that judgment was properly rendered in favor of plaintiff on the special verdict, pp. 60-62.</p> <p>Municipal Corporations.— Defective Streets. — When City Bound by Acts of City Marshal. — Where in an action against a city for a personal injury caused by a hole left in a public street by the removal of a hitching-post by men employed by the city marshal, evidence that the city paid the men employed by the marshal for doing the work raises the presumption that the work was authorized by the city, and is sufficient to bind the city for injury resulting from the negligent'-manner in which the work was done. pp. 6S-66.</p> <p>Appeal and Error. — Excessive Damages. — A judgment against a city for personal injuries will not be reversed as excessive, where it cannot be said that the amount awarded indicated that the minds of the jurors were influenced by improper motives or feelings, or that they overestimated the amount necessary to compensate plaintiff for the injury he sustained, pp. 66. 67.</p>

<p>New Trial. — Verdict Not Sustained by Sufficient Evidence — That “the verdict is not sustained by sufficient evidence” is the proper and statutory cause for which a new trial may be demanded, and it is not necessary, in addition thereto separately to assign that “the verdict is contrary to the evidence.” p. 69. '</p> <p>Appeal. — Evidence.—Weight Of. — The Supreme Court will not review the evidence, where there was competent evidence to sustain the verdict, pp. 70, 71.</p> <p>Wills. — Testamentary Capacity. — The fact that the testator was, at the time of making his will, suffering great pain, did not take away his testamentary capacity, p. 71.</p> <p>Same. — Undue Influence. — Trial.—Instruction.—The complaint, in a suit to contest a will, charged that such will was invalid upon the ground of the unsoundness of mind of testator, and also for undue influence in the execution thereof. Upon the trial there was no evidence that the execution of the will was procured by undue influence. . Held, that it was not error for the court by proper instruction to withdraw from the jury the question of undue influence, p. 71.</p> <p>Wills. — Undue Influence.- — The fact that some of the relatives ignored by a testator in his will were poor is of itself of little weight in determining whether undue influence was exercised over the testator, p. 75.</p> <p>Same. — Subscribing Witness. — Instruction.—An instruction that “a person who attaches his name as a witness to a testamentary instrument impliedly certifies that the testator is of sound mind, and while the law will subsequently permit him to testify to the contrary, because the truth, if such it be, should be learned, yet the jury trying the case may consider the fact of such implied contradiction in weighing his testimony,” is a correct statement of the law, and is not an invasion of the province of the jury. pp. 76-79.</p> <p>Sasie. — Undue Influence. — Evidence.—Where, on the trial of an action to contest a will, it was contended by plaintiff that the testator’s antipathy for his brother was without substantial foundation, but was due to an insane delusion, it was proper to admit evidence in contradiction thereof showing that such brother had stated to a crowd that testator in his lifetime had improved every opportunity to take advantage of his brothers, and had robbed them, although it was not shown that testator had knowledge of such statement before making his will. pp. 80, 81.</p> <p>Evidence. — Expert Testimony. — Unsoimdness of Mind. — On the trial of an action to contest a will, on the ground that the testator was a person of unsound mind, a physician shown to possess the necessary qualifications of an expert, was asked the question whether or not from his conversation with and examination of testator at a time specified, such testator “was laboring under an insane delusion or anything of that kind.” To which question the witness answered in the negative. Held, that the answer was not objectionable as being a statement of fact, and not the expression of an opinion, p. 82.</p> <p>Trial.- — Misconduct of Juror. — Appeal.—Where the question of alleged misconduct of a juror was tried in the court below upon affidavits and counter affidavits, it will be presumed on appeal that the decision of the trial court was correct, p. 82.</p>

<p>Husband and Wife. — Deeds.—Joint Tenancy. — Estates by Entire-ties. — A deed of conveyance to a husband and wife containing the word “jointly” in the granting clause does not create an estate of joint tenancy, but one of entireties, the word “jointly” being mere surplusage.</p>

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

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

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

<p>Dea.ins. —Assessments.—Vacation. —Supplemental Petition. —Defendant by plea in abatement secured an order of court vacating for want of notice certain assessments made against its lands for the construction of a drain. After the work was established and the assessments approved two of the petitioners filed a supplemental petition asking that the benefits to defendant’s lands be assessed thereon. Held, that the order of court vacating the assessment did not amount to an adjudication that defendant’s lands were not benefited, and that the filing of the supplemental petition waB authorized by law. pp. 10S-10J/..</p> <p>Drains. — Supplemental Petition. — A supplemental petition showing that lands benefited by a drain were not assessed therefor, and asking that such lands be assessed, may be filed in vacation. . pp. 104, 105.</p> <p>Same. — Supplemental Petition. —Notice.—The court is not required to fix in advance what notice shall be given a landowner by one filing a supplemental petition showing that lands benefited by the construction of a drain were not assessed therefor, and if a proper notice is given, the court is not authorized to set the same aside. p. 105.</p> <p>Same. — Final Judgment. — Appeal.—An order of court dismissing- a supplemental petition filed under the provisions of §4279 Homer 1897 in a drainage proceeding after the work was established and the assessments approved was a final judgment within the meaning of the statute from which' an appeal might be taken, p. 106.</p>

<p>Appeal. — Failure to Discuss Errors Assigned. — Waiver.—Errors not discussed by appellant in bis brief are waived, p. 107.</p> <p>Same. — Bill of Exceptions. — Instructions.—Instructions in a criminal case can only be brought into the record by bill of exceptions. p. 107.</p>

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

<p>Drains. — Drainage Law of 1889. — Constitutional Law. — The drainage act of 1885 as amended in 1889 (Acts 1889, p. 285) is not void for uncertainty as violative of the provision of §20, article 4 of the Constitution that “Every act and joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms.” p. 119.</p> <p>Same. — Drainage Law of 1889. — Construction.—The act of 1889 (Acts 1889, p. 285) amending the drainage law of 1885 was intended to apply to the drainage of country lands where no outlet was available without extraordinary labor and expense, except through the corporate limits of a city. p. 119.</p> <p>Same. — Jurisdiction of'Circuit Court. — Drainage Law of 1889. — The legislature may give circuit courts jurisdiction over the matter of drainage in country and city conjointly, although previous exclusive jurisdiction was granted the common council over drainage within the corporate limits of cities, p. ISO.</p> <p>Drains. — Jurisdiction,—Drainage Law of 1889.— If the object of straightening a water course is to prevent the banks from washing, to protect a highway, to avoid the construction of a bridge, or the like, the boards of county commissioners have exclusive jurisdiction ; but if the object is the drainage of wet lands, and the improvement of the water course is merely a means to that end, the circuit court has jurisdiction under the drainage act of 1889. p. ISO.</p> <p>Same. — Petition.—Jurisdiction.—Drainage Law of 1889. — A petition for drainage averring that numerous bodies of land, particularly described, will be “benefited by the proposed drainage, that many highways and streets will be improved. and benefited by the proposed drainage, that the public health will be promoted, and that the proposed results can most readily be accomplished by straightening and deepening the river and constructing lateral drains, and that construction of the drain is impracticable except by going through the corporate limits of a certain city, is sufficient, under the drainage law of 1889, without alleging the particular circumstances by reason of which the proposed drainage could not be accomplished without extraordinary labor and expense and in the best and cheapest manner, except by passing through the corporate limits of a city. pp. ISO, 1S1.</p> <p>Same. — Remonstrance.—Drainage Law of 1889. — Section two of the act of 1889 amending the drainage law of 1885, providing that a drainage petition shall be dismissed if two-thirds of the landowners remonstrate, does not repeal the proviso of section three of the original act that the remonstrants shall be resident landowners, but operates merely as an exception to the rule laid down in section three of the original act, and is applicable to a proceeding for drainage by country and city conjointly, pp. 1S1, 1SS.</p> <p>Same. — Remonstrance.—Drainage Law of 1889. — There is no warrant to act under amended section two of the drainage law of 1885 as amended in 1889, providing that a drainage petition shall be dismissed if two-thirds of the landowners remonstrate, unless the court finds that the drainage cannot be accomplished without extraordinary labor and expense, and in the best and cheapest manner, except by passing through a city. p. 1SS.</p> <p>Same. — Remonstrance.—Dismissal of Proceeding. — The necessity for the drainage of country lands by means of a drain passing through the corporate limits of a city is a jurisdictional fact to be found by the court, and the dismissal of a drainage petition on a remonstrance signed by two-thirds of the resident owners, but less than two-thirds of all landowners affected, is equivalent to a finding that such necessity does not exist, and is not reviewable. pp. 1S1-1S3.</p> <p>Same. — Remonstrance.—Grounds of Objection. — As no grounds need be stated in a remonstrance against the construction of a drain under the act of 1885 as amended in 1889, several papers stating different objections to the proposed drain, signed by remonstrators, may be put together, and all' of the headings but one stricken out, and presented as one remonstrance, p. 123.</p> <p>Drains. — Remonstrance.—A remonstrance against the construction of a drain under the act of 1885 as amended in 1889 is not a pleading, and need not state facts sufficient to constitute a defense to the petition, p. 123.</p> <p>Same. — Remonstrance.—Withdrawal of Remonstrant. — Under the drainage law of 1885 as amended in 1889 (Acts 1889, page 285) a period of ten days after the docketing of the cause is allowed for the filing of a remonstrance for the dismissal of the petition, and after the ten days have elapsed, the question for determination is whether or not the required number of landowners with proper qualifications were remonstrants at the expiration of the ten days’ period, and no remonstrant can subsequently withdraw, p. 124.</p> <p>Evidence. — Offer to Prove. — Available error cannot be predicated on the action of the court in refusing an offer to prove certain alleged facts, where the witness was not produced, pp. 124; 125.</p> <p>Same. — Expert Witness. — The opinion of an expert witness as to whether a proposed drain could be accomplished without extraordinary labor and expense, without passing through the corporate limits of a city, must be based upon facts either admitted to be true, or assumed, or previously testified to by the witness, p. 126.</p> <p>Same. — Costs.—Dismissal of Petition. — Remonstrants to a proposed drain are bound to testify in their own behalf without being sub» pcmaed, and the costs of the sheriff in serving subpcenaes upon them issued on the precipe of the remonstrants, should not be taxed against the petitioners on the dismissal of the petition at the cost of petitioners, p. 126.</p>

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

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

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

<p>Master and Servant. — Negligence.—Railroads.—Pleading.—Notice of Defects. — A complaint alleging that defendant negligently constructed a side-track, and ordered decedent, an engineer, to run his engine over it, and that decedent, without fault on his part, was killed by the overturning of the engine as a result of the giving ’away of the side-track is bad on demurrer in the absence of an allegation that decedent had no knowledge of the defective condition of the side-track, p. 154.</p> <p>Pleading. — Complaint.—Omission of Material Averment Not Cured by Verdict. — The omission of a material averment of fact from a complaint is not cured by a finding of the omitted fact in the special verdict, p. 155.</p>

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

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

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

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

<p>Criminal Law. — Burglary.—Indictment.—An information charging that defendant did then and there unlawfully, feloniously, and burglariously in the night-time, break and enter into the barn of F. with intent then and there feloniously and burglariously to take, steal, and carry away certain pieces of meat then and there situate, said meat being then and there of the value of §3, contrary, etc., is bad for failing to allege that the meat was the property of another than the accused.</p>

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

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

<p>Appeal and Ereoe. — Complaint Challenged for First Time on Appeal. — Where a complaint is first challenged on appeal, it will be held sufficient if each essential element of right of recovery is stated, even if so defectively as to make the complaint obnoxious to demurrer. p. SSI.</p> <p>Trespass. — Injunction.—Complaint.—Averment as to Ownership of property —A complaint in an action to enjoin defendant from trespassing upon certain described property, alleging that plaintiff purchased the property from the owner, and has ever since owned and occupied the same, is a sufficient averment of the kind and extent of plaintiff’s title as against an objection made for the first time after judgment, p. SSI.</p> <p>Same — Pleading.—Title to Property. — A complaint in an action to enjoin defendants from trespassing upon canal property alleged to be owned by plaintiff, which discloses that defendants, since a time prior to the abandonment of the operation of the canal, have maintained a bridge over the property, does not amount to an admission of a superior title in defendants to the ground under the bridge. pp. SSI, SSS.</p> <p>Same. — Injunction.—Complaint.—Railroads.—A railroad company, having purchased a canal and constructed its tracks along the tow-path of same, may maintain an action to enjoin other railroad companies that had maintained a bridge over the canal from appropriating the tow-path under the bridge on an allegation that plaintiff was the owner and in possession of the land and space under the bridge, and that defendants, forcibly and without right, were attempting to appropriate the same permanently to their own use to the exclusion of plaintiff, pp. SSS, SSS.</p> <p>Special Findings. — Railroads.—Right of Way. — Title.—Injunction. —In an action by a railroad company to enjoin other companies from appropriating its right of way, a finding that the original owner of the land platted same, and the land in question appeared by the plat to be a street, does not overcome other findings showing plaintiff to be the owner in fee of the land, where'it was not shown that the street was ever accepted by the public, and the street was never used, opened or improved, and could not be, on account of the topography. of the place, pp. SS3-SS5.</p>

<p>Insolvency. — Principal and Surety. — Transfer of Property to Surety. —An insolvent may prefer and save harmless a surety on a note by transferring to him personal property, unless such transfer is made with fraudulent intent and purpose to cheat, hinder, and delay creditors, p. 228.</p> <p>Fraud. — Must be Found as a Fact. — Fraudulent Conveyances. — Where fraud is essential to a recovery or a defense, it must, where there is a special finding or special verdict, be found as a fact, and a finding that property worth $800 was transferred by an insolvent to his surety on a note, for $200 less than the value, is not equivalent to a finding that the sale and transfer was fraudulent, p. 228.</p> <p>Sales.- — Bill of Sale. — Record.—A bill of sale evidencing the sale of personal property need not be recorded where the property is delivered to the purchaser, p. 228.</p> <p>Injunction. — Replevin.—Injunction, and not replevin, is the proper remedy of one holding property under bill of sale from the judgment debtor to prevent a sale of the property on execution, where the property after levy was left in the possession of plaintiff without any bond, undertaking, or agreement for the return of the property, pip. 829, 230.</p>

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

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

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

<p>Cbiminal Law. — Robbery.—Indictment.—Larceny.—The offense of larceny is included and involved in the charge of robbery, and one may be properly convicted of larceny under an indictment charging robbery, p. 252.</p> <p>Same. — Robbery.— Indictment.— Larceny. — Where defendant was charged with robbery and convicted of the lesser offense of larceny, he is not in a position to complain on the ground that the evidence showed that the crime committed was that of robbery, pp. 2B2, 263.</p>

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

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

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

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

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

<p>Parties. —Interpleader.—Practice. —Petition. —Sufficiency. —One not a party, having an interest in the subject-matter of a pending action that may be adversely affected by the suit, will be permitted, upon a proper showing, under §273 Burns 1894, to come into the case for the protection of his interests, and such petition of intervention need not be as formal as a complaint, and is sufficient if it contains a succinct statement of the facts upon which the equities claimed are predicated, p. 296.</p> <p>Street Bailroads. — Franchises.—Street Improvements. — Paving Between Tracks. — A franchise granting a street railway company the right to occupy the streets of a city conditioned that the street between the tracks shall be paved “ when and as the street may be paved,” requires the railway company to pave the space between its tracks when the street is paved, pp. 297-301.</p> <p>Mortgages. — Street Railroads. — Liens for Improvements. — Priority. —A petition by an intervener, in an action to foreclose a mortgage against a street railway company, seeking to enforce a claim for material furnished for paving between the company’s tracks as preferential to the mortgage, on the theory that the company materially increased the value of its property after the execution of the mortgage, is insufficient, where it is not alleged that the increase in value was made from the current earnings of the company. pp. 297-303.</p> <p>Same.— Street Railroads. — Liens for Improvement.— Priority.— Where, by its charter, a street railroad company was required to pave between its tracks when and as the streets occupied by it were improved, as a condition to the enjoyment of the franchise, such condition was carried into a mortgage executed by the company upon its property, and the lien of a material man for material furnished for paving between the tracks of the company is paramount to the lien of the mortgage, pp. 303-307.</p> <p>Appeal and Error. — Notice.—Appearance.—In the absence of an appearance and declination, a co-appellant will be regarded as having joined in an' appeal, where the record shows that notice of the appeal was given, p. 80S.</p> <p>Same. — Notice.—Appearance.—Where a co-party appeared, assigned errors, and filed a brief in support thereof, such appearance cured any defects in the notice given by appellant, p. 808.</p>

<p>Indictment. — Sufficiency.—False Pretenses. — An. indictment for obtaining money by false pretenses, charging that C. did feloniously, etc., in writing, to wit: * * * Send me 8400 here by first express. K., — pretend to the First National Bank of Vincennes, * * * that he was K., a depositor in said bank, is void for uncertainty, where it is not shown how the writing reached the bank, who wrote it, or procured its transmission, or that it was written without the consent of K. pp. 309-3IS.</p> <p>Same. — False Pretenses. — An indictment for false pretenses must directly negative the truth of the alleged false pretenses, p. SIS.</p>

<p>Appeal and Error. — Parties.—Dismissal.—Where suit was brought for partition of real estate, and defendant notified his remote grantor, who appeared and defended same in the name of the original defendant, showing in his application that defendant had taken no interest in the defense of the suit, and that he was obliged to defend the same or incur liability to said defendant on his covenants of warranty, an appeal taken by such grantor, in the name of defendant, from a judgment granting partition, will not be dismissed upon motion of such defendant, where it appears that the appeal bond was executed by the grantor and the cost of transcript paid by him.</p>

<p>Libel. — Complaint.— Innuendo. —It is the office of the innuendo to explain, not to extend or enlarge, the meaning of the words used, and if words not libelous per se are charged, the absence of inducement showing by extrinsic matter that the words are actionable is not supplied by an innuendo attributing to the words a meaning which renders them actionable, p. 320.</p> <p>Pbactice. — Harmless Error. — Available error cannot be predicated upon the action of the court in sustaining a demurrer which was defective in form, where the complaint to which it was addressed was insufficient for want of facts, p. 321.</p>

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

<p>Prom the Jackson Circpit Court.</p>

<p>Criminal Law. — Indictment.—Indorsement.— It is immaterial on what part of an indictment the .indorsement and grand jury foreman’s signature appears, pp. 346, 346.</p> <p>Same . — Defense of Insanity. — Question of Fact. — The' fact of sanity, when properly put in issue in the trial of a criminal cause, like any other material fact in the case, is considered by the jury, and found by the verdict, and such result, when fairly arrived at, will not be disturbed on appeal, p. 346.</p> <p>Same. — Murder.—Evidence.—Sufficiency.—In a trial under an indictment for murder in the first degree the evidence showed that defendant, a young man of dissolute habits, had become attached to an inmate of a house of prostitution. A loathsome disease rendered defendant a cripple, and the refusal of the woman to cohabit with him while in this condition excited his resentment and jealousy; and armed with a revolver, he went to the brothel where she resided, and after a short and apparently friendly interview, he shot and killed her, and then fired two balls into his own body. While the woman lay dying he asked if she was dead, and said “I have fixed her.” .A short time before the homicide, in a conversation with a friend, he declared that he would “fix her.” Held, that the evidence was sufficient to warrant a conviction for murder in the first degree, pp. 346, S47.</p> <p>Same. — Defense of Insanity. — Opinion Evidence. — The testimony of a witness upon the issue of the sanity of the defendant in the trial of a criminal action was properly admitted in evidence, where the witness gave the facts and circumstances upon which his opinion was founded, as the weight to be given the testimony was a question for the jury, and depended upon the facts narrated as the basis of the opinion, p. 347.</p> <p>Same. — Murder.—Defense of Insanity. — Evidence.—Letters Written by Defendant. — Expert Testimony. — Where in a prosecution for murder the sanity of defendant was in issue, letters written by defendant to the deceased shortly before the homicide were properly admitted in evidence for the purpose of obtaining the opinion of an expert witness upon the question of the sanity of defendant. pp. 848, 349.</p> <p>Criminal Law. — Instructions. — Defense of Insanity. — Harmless ' Error. — An instruction in a prosecution for murder that a man with ordinary will power, which is unimpaired by disease, is required by law to govern and control his passions, and if he yields to wicked passions, and purposely and maliciously slays another, he cannot escape the penalty on the ground of mental incapacity was harmless even though the evidence showed that defendant was of unsound mind. pp. 849, 850.</p> <p>Same. — Instructions.—Defense of Insanity. — Reasonable Doubt. — An instruction on the question of sanity in.a prosecution for murder that where insanity has once been shown to exist, it will be presumed to have continued until the contrary has been shown by the evidence is not bad for failure of the court to add the words “beyond a reasonable doubt ” where the jury were repeatedly told in other instructions that they could not convict defendant unless his guilt was established beyond a reasonable doubt, pp. 850, 351.</p> <p>Same.— Instructions. — Defense of Insanity. — Where in a prosecution for murder the question of the sanjty of defendant was in issue, defendant was not entitled to an instruction as to the presumption that insanity once shown to exist is presumed to continue, in the absence of proof that defendant at any time had been insane, and he could not be injured by an instruction, even if imperfect or incomplete, applicable only to a state of facts which was not shown by the proof, pp. 351, 853. '</p> <p>Same. — Instructions.—Murder.—Absence of Motive as Evidence of Insanity. — Where in a prosecution for murder the evidence showed that the relations between defendant and deceased were immoral and illicit and her character and mode of life kept him unhappy and jealous, and the repugnance for him manifested by the woman in the latter part of their acquaintance, on account of his diseased condition, inflamed his resentment against her, an instruction that absence of motive might be considered as a circumstance indicating insanity was properly refused.1 pp. 858, 358.</p> <p>Appeal and Error. — Denial of Request Made by Attorney During Adjournment of Court. — The denial of a request made by the attorneys for defendant, during the adjournment of court, and in the absence of the attorneys for the State, to send the jury out of hearing while they submitted a motion founded upon the alleged misconduct of one of the attorneys for the State during the argu- ■ ment, constitutes no part of the proceedings in the cause and is not subject to review on appeal, pp. 353, 854.</p> <p>Misconduct oe Counsel. — -New Trial. — Defendant was not entitled to a new trial on account of the misconduct of the prosecuting attorney in referring in Ms argument to the failure of the defendant to testify, where the court sustained defendant’s objection to the statement, and instructed the jury that the remark was improper, and that the failure of defendant to testify should not be considered by them, and the defendant proceeded with the trial without any motion to set aside the submission and discharge the jury. pp. 354-357.</p>

<p>Husband and Wife.— Principal and Surety. — Mortgages.—Foreclosure. — Defense.—In action on a note executed by the wife alone, and secured by a mortgage upon her separate real estate, the burden is upon defendant to allege and prove that she was surety and not principal, pp. 359, 360.</p> <p>Same.- — Principal and Surety. — Mortgages.—Foreclosure.—Answer. An answer in an action to foreclose a mortgage, alleging defendant’s ownership of the mortgaged real estate, her coverture, that the note was given for the debt of her husband, that she signed it as surety and received no part of the consideration, and that it did not inure to her benefit or to the benefit of her estate was sufficient within the meaning of §6964 Burns 1894 to avoid the complaint. p. 360.</p> <p>Appeal and Error. — Practice. — Sustaining Demurrer to Good Paragraph of Pleading . — Harmless Error. — It is harmless error to sustain a demurrer to one paragraph of a pleading where a remaining paragraph contains all the material allegations thereof and no more; but the error is not harmless if the paragraph allowed to stand imposes the burden of adducing more or different evidence than would have been necessary under the paragraph erroneously condemned. Kniss v. Holbrook, 16 Ind. App. 229, disapproved. pp. 361, 363.</p>

<p>Appeal and Error. — Certiorari.—Affidavits.—Neither affidavits nor parol evidence will be accepted or considered for the purpose of contradicting the facts averred in a petition for a writ of certiorari, p. 365.</p> <p>Same — Certiorari.—Record.—A writ of certiorari will not be granted for the purpose of expunging from the bill of exceptions an exhibit embodied therein at the time the bill was signed and approved by the trial judge, where it is shown by the record that the original bill was filed in the clerk’s office of the lower court instead of a transcript thereof, p. 366.</p> <p>Same. — Record.—Correction.—Certiorari.—Where a paper through mistake, inadvertence, or otherwise, has been improperly made a part of the bill of exceptions the remedy is to apply to the lower court to have the bill properly corrected, and, when so corrected, it may be brought to the Supreme Court by a writ of certiorari, pp. 366, 367.</p>

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

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

<p>Appeal and Error. — Correction of Record. — An appeal from a proceeding to correct the record of a case pending on appeal will not be considered unless the transcript of such proceeding is filed as a part of the original appeal.</p>

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

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

<p>Appeal and Error. — Vacation Appeal. — Parties Appellant. — An appellant in a vacation appeal must join all of his co-parties or the appeal will be dismissed, p. 894.</p> <p>— Record.—Judgment.—Recital.—A recital at the beginning of a finding and judgment that the action had been dismissed as to certain parties is overcome by the statement in the record of the facts to the contrary, pp. 894-896.</p>

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

<p>Appeal and Error. — Waiver.—Assignments of error which are not discussed are waived, pp. Jfil, 402.</p> <p>Same. — Record.—No question is presented upon an assignment of error based upon the action of the court in overruling a demurrer to the complaint, where the demurrer is not copied into the transcript. p. Jfl2.</p> <p>Same. — Motion to Modify Judgment. — Available error cannot be predicated upon the action of the court in overruling a motion to modify a judgment when the judgment followed the conclusions of law as stated, p. 402.</p> <p>Same. — Conclusions of Law. — Joint Assignment of Error. — An assignment of error assailing all of the conclusions of law jointly will not be considered on appeal if any one of the conclusions is correct, p. Jfi^.</p> <p>Same. — Joint Assignment of Error. — Failure to Discuss. — An appellant does not waive an assignment of error assailing several conclusions of law jointly by failing to discuss each conclusion of law separately in his brief, where he states certain propositions, supported by argument and citation of authorities, which if true and applicable, show that no conclusions could be properly stated in favor of the appellee upon the facts found, p. 402.</p> <p>Same. — Motions.—Practice.—A party does not waive his exception to the conclusions of law by subsequently moving the court to add to the finding certain facts which were in evidence, pp. 402, 403.</p> <p>Compromise and Settlement. — Judgments.—Fraud.—A judgment on a complaint by heirs and distributees setting aside for fraud and misrepresentation an order of court authorizing the administrator to assign an insurance policy in favor of the estate, upon tbe life of another, in settlement of a suit on a claim pending an appeal from a judgment in favor of the estate, was erroneous, where there was no offer to restore the funds of the estate and place the claimant in the same position he occupied in reference to his appeal, pp.</p>

<p>Bills and Notes. — Action by Assignee. — ■Complaint.—-Allegation as to Assignment. — An allegation in a complaint on a promissory note that the note was assigned by the payee to plaintiff, was not equivalent to an allegation that the payee assigned the note by indorsement in writing, pp. 411, 41%.</p> <p>Same. — Action by Assignee. — The payee of a promissory note must be made a defendant in an action on the note by an assignee thereof where it is not alleged that the payee assigned the note to plaintiff by indorsement in writing, pp. 411, 41%■</p> <p>Appeal and Error. — Defect of Parties. — Waiver.— A defect of parties appearing on the face of a complaint which is not taken advantage of by demurrer in the court below is waived, p. 41%.</p> <p>Same. — Defeat of Parties. — An assignment of error on appeal that the complaint does not state facts sufficient to constitute a cause of action presents no question concerning a defect of parties plaintiff or defendant, p. 41%-</p> <p>Same. — Bill of Exceptions. — A bill of exceptions purporting to contain the evidence presented to and signed by the judge in vacation is not a part of the record, where it is not shown by order-book entry contained in the transcript that time was given to present a bill of exceptions, p. 41%.</p>

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

<p>Criminal Law. — Indictment.—Duplicity.—Administering Poison.— Under the provision of §1919 Horner 1897 making it a crime to administer or procure to be administered any poison to another human being, the State in charging the accused with having violated its provisions may in a single count of the indictment, by using the conjunction and instead of or, as employed in the statute, charge the commission of as many prohibited acts as may be deemed necessary to render the indictment applicable to the evidence without rendering it bad on account of uncertainty or duplicity, pp. 426-428.</p> <p>Same. — Indictment.—Administering Poison. — An indictment charging that defendant unlawfully, feloniously and with premeditated malice administered poison with intent to kill and murder is not bad for failing to state the quantity of the poisonous drug administered. p. 488.</p> <p>Evidence. — Weight.—Criminal Law. — It is the province of the trial court to weigh and determine the credibility to be given the evidence introduced, and the Supreme Court will not disturb the judgment on the weight of the evidence where there is evidence, if worthy of belief, sufficient to sustain the finding upon every material point, pp. 489, 480.</p>

<p>Negligence. — Infants.—Non Sui Juris. — It cannot be said as a matter of law that a child nine years of age is either capable or incapable of negligence, p. 432.</p> <p>Same. — Complaint. — Contributory Negligence. —Infants. —Non Sui Juris. — A complaint in an action for personal injuries alleging that plaintiff by reason of his immature age, judgment, and experience did not comprehend the danger of the situation, and was incapable of negligence in the premises, is not bad for failing to allege that plaintiff was free from negligence contributing to his injury, p. 432.</p> <p>Same . — Non Sui Juris. — Contributory Negligence. — Where in an action for personal injuries a paragraph of complaint charged that plaintiff was non sui juris, and incapable of negligence, a finding that plaintiff was capable of contributory negligence would defeat the action on that paragraph whether he was shown to be guilty thereof or not. p. 43%.</p> <p>Negligence. — Violation of Gity Ordinance. — Proximate Cause. — Complaint. — A complaint in an action for personal injuries charging the violation of a city ordinance as one of the elements of defendant’s negligence is not rendered bad by its failure to show that the violation of the ordinance was the proximate cause of plaintiff’s injury. p. 433. .</p> <p>Sams. — Contributory Negligence. — Proximate Cause. — Railroads.—A complaint against a railroad company for personal injuries alleging that the defendant ran its locomotive against plaintiff, and negligently dragged him 200 feet, although, by the exercise of care and caution it could have stopped the locomotive before plaintiff was injured, states a cause of action, although plaintiff was guilty of negligence in being upon the track, since such negligence on the part of plaintiff was not the proximate cause of the injury, pp. 433-435.</p> <p>Same. — Instructions.—Railroads.— An instruction in an action against a railroad company for an injury received at a railroad and street crossing that if defendant’s servants saw plaintiff on the track, and saw that his attention was diverted from the approach-. ing engine in time to have stopped, by the exercise of ordinary care, before striking plaintiff, the jury would be justified in finding that defendant was guilty of negligence was erroneous, pp. 435-437.</p>

<p>Monopolies. — Anti-Trust Law. — Corporations.—The anti-trust law of 1897 is prospective and does not apply to contracts entered into before the law took effect.</p>

<p>Justices of the Peace. — Change of Venue. — Costs.—Payment of costs is a condition precedent to the right of change of venue in actions before justices of the peace.</p>

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

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

<p>Criminal Law. — Banks and Banking. — Embezzlement.—Indictment. —The same rules of pleading applicable in the prosecution of an official for embezzlement are to' be -accepted in determining the sufficiency of an indictment against bank officials, under §8031 Burns 1894, for receiving bank deposits when the bank is insolvent. P- 444.</p> <p>Same. — Banks and Banking. — Embezzlement.—Indictment.—An. indictment under §2031 Burns 1894 charging the president and cashier of a bank with having received bank deposits when the bank was insolvent is bad for failure to charge that the money was received by them in their official capacity, pp. 445, 446-</p>

<p>Pleading. — Former Adjudication. — The answer of former adjudication is not founded on the pleadings in the former suit, and it is not necessary to file with such answer a. copy of the pleadings in the former suit as an exhibit. p. 447.</p> <p>Former Adjudication. — Slander.—Superior Courts. — Jurisdiction. —The Marion Superior Court has no jurisdiction of actions for slander, and a judgment for defendant in such court in an action for damages for assault and battery and slanderous words used by defendant during the altercation, will not constitute a bar to an action in the circuit court for slander, pp. 448-450..</p>

<p>Criminal Law. — Discharge of Defendant for Delay in Prosecution.— A judgment discharging defendant from an indictment pending against her for failure of the State to bring the cause on for trial within the time prescribed by §1852 Burns 1894 will not be reversed . on the ground that the time of the court was occupied in the trial of other causes, where it was shown that at least eight days of the third term after defendant was admitted to bail were occupied in the trial of civil causes.</p>

<p>Appeal and Error. — Evidence.—A finding and judgment will not be disturbed on the sufficiency of the evidence where there was legal evidence fully sustaining the finding, pp. 455, 450.</p> <p>Same. — New Trial. — Affidavits.—Record.—No question is presented on an assignment in a motion for a new trial based upon newly discovered evidence, where the affidavits in support thereof are not made a part of the record by bill of exceptions or by order of court, p. 456.</p>

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

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

<p>Practice. — Harmless Error. — Where all the evidence admissible under a special answer could have been given under the general denial which was pleaded, sustaining a demurrer to the special answer is not rendered harmful by the subsequent withdrawal of the general denial, pp. 548, 549.</p> <p>Appeal and Error. — Waiver.—Assignments of error which are not discussed are waived, p. 549.</p>

<p>Courts. — Tippecanoe Superior Court. — Statutory Construction. — The act of 1875 creating the Superior Court of Tippecanoe county, giving it the same power to grant restraining orders, injunctions, writs of mandate, etc., “as is now or may hereafter be conferred on circuit courts or the judges thereof” gave such court the power to issue writs of mandate and prohibition conferred upon circuit courts by the subsequent act of 1881. p. 552.</p> <p>Special Finding. — Failure of Judge to Sign. — Venire De Novo. — The failure of the trial judge to sign the special finding of facts is not ground for a venire de novo, since under such circumstances the finding will be treated as a general finding, pp. 552, 553.</p> <p>Same. — Signature of Judge. — The signature of the judge to the conclusions of law following immediately after the special finding of facts constitutes a sufficient signing of the special finding of facts, where the record shows that the conclusions of law and special finding of facts constituted one written instrument, pp. 552, 653.</p> <p>Injunction. — Obstruction of Highways. — Action by Private Person.— The owner of real estate abutting upon a highway has a peculiar and distinct interest in the highway in front of his premises, and may maintain an action for and enjoin the obstruction of such highway, even if it is not upon his real estate, if it materially impairs or interrupts his access to the highway, pp. 653-556.</p> <p>Same. — Obstruction of Highways. — Damages.—To maintain an action for the removal of an obstruction of a highway adjoining plaintiffs’ premises, and for damages, it is not necessary for plaintiffs to show that they were entirely deprived of the means of access to their real estate, but it is sufficient if their means of access have been materially impaired or interfered with. p. 556.</p> <p>Special Finding. — Injunction.—Obstruction of Highway. — In an action to recover damages for the obstruction of a highway adjoining plaintiffs’ premises and enjoining its continuance, it was not necessary or proper for the court to find the amount the real estate was damaged by the obstruction on the theory that it was permanent. • pp. 556, 557.</p> <p>Highways. — Obstruction.—Road Supervisor. — A road supervisor may be compelled by mandate to remove obstructions from a public highway in his road district.' p. 558.</p> <p>Appeal and Eeeoe. — Assignment of Error. — Special Findings.— Objections that the special findings contain evidentiary facts, conclusions of law, and are outside the issues in the case, are not presented on appeal by an assignment in a motion for a new trial that the special findings are contrary to law. p. 558.</p> <p>Special Finding. — Evidence.—A finding as to the distance defendant’s fence encroached upon the highway will not be disturbed on appeal, although no witness testified to the exact distance found by the court, where the distance found was within those testified to by the witnesses, p. 559.</p> <p>Highways. — Obstruction.—Injunction.—Action by Private Person.— The fact that an obstruction in a highway injured others in like manner and degree as plaintiffs, was immaterial so long as the injury was peculiar to plaintiffs, and did not embrace the public in general, pp. 559, 560.</p> <p>Special Finding. — Evidence.—Highways.—Obstruction—A finding in an action to enjoin the obstruction of a highway with a fence that by reason of the obstruction ingress and egress to and from plaintiffs’ premises was more difficult and dangerous, and required more time in effecting a passage through the gateway is sustained by evidence that in driving out of the gate the horses were not disposed to approach near the new fence on account of the barbed wire along the top thereof, that one had to drive carefully, and back, to get through the gate into the highway without cramping the wagon, and that they broke corners off of hay-racks in going in, and often had to lift the end of the wagon over to get in. pp. 560, 561.</p> <p>Highways. — Obstruction.—Damages.—Evidence.—Harmless Error.— The admission of evidence as to damages, in-an action by abutting owners to enjoin the obstruction of a highway and for damages, on the theory that the obstruction was permanent was cured by the assessment of damages up to the commencement of the action, on the theory that the obstruction was temporary, pp. 561, 562.</p> <p>Same. — Obstruction.—Damages.—Evidence.—In the trial of an action by abutting owners to enjoin the obstruction of a highway and for damages, the admission of evidence as to the effect, if any, the continuance of the obstruction would have in diminishing the value of plaintiffs’ land was proper, p. 562.</p> <p>Appeal and Error. — Motions.—Record. —A motion to modify a judgment and the ruling thereon can only be made a part of the record by a bill of exception or order of court, and where appellants’ counsel do not indicate the page and line in the record where such motion and ruling are made a part of the record by bill of exception or by order of court, it will be presumed that the same was not so made.a part of the record, p. 562.</p>

<p>Easements. — Quieting Title. — Complaint.—A complaint in an action to quiet title to an easement in a way adjoining plaintiff’s premises, and to remove an obstruction placed there by defendants, which shows that plaintiff was entitled to use the way is good as against a demurrer, pp. 564, 565.</p> <p>Verdict. — Easements.—Quieting Title. — A verdict in an action to quiet title to an easement in a way, and to remove obstructions placed there by defendants, that the jury find for the plaintiff, that said obstruction should be removed and plaintiff’s easement in the alley quieted, and that they find against defendants on their cross-complaint, is a general verdict, determining all of the material issues in favor of plaintiff, pp. 565, 566.</p> <p>Interrogatories to Jury. — General Verdict. — Conflict.—Answers to interrogatories cannot be aided by any presumptions or intendments as against a general verdict, p. 566.</p> <p>Same . — General Verdict. — Easements.—Quieting Title. — An answer to an interrogatory in an action to quiet title to an easement in a way and to remove an obstruction placed there by defendants that the parties under whom plaintiff claimed title had conveyed the right of way over the same strip of ground to a third party is not in irreconcilable conflict with a general verdict for plaintiff, p. 566.</p> <p>Contracts. — Construction by Parties. — Where parties have by their acts and conduct given their contract a certain construction, the courts will, ordinarily, adopt that construction, pp. 569, 570.</p> <p>Easements. — License.—Where the owners of real estate abutting an alley erected buildings and made improvements on the real estate with reference to the alley, with the knowledge of each other, they cannot be deprived of the use thereof although they had merely a license to use the way. p. 570.</p> <p>Evidence. — Quieting Title. — Easements.—In an action to quiet title to an easement in a way alleged to have been located by deeds, evidence as to the number of years the way had been used, as such, was properly admitted for the purpose of showing the construction given the deeds by the parties and those holding under them, although it was not alleged that plaintiff had title to the way by prescription, pp. 571, 573.</p> <p>Trial. — Admission of Evidence. — It is within the discretion of the court to admit original testimony after the evidence and argument have been closed, and a cause will not be reversed for that reason unless it clearly appears that such discretion was abused, p. 573.</p> <p>Misconduct of Counsel. — Instructions.—The refusal of the court specifically to instruct the jury to disregard a remark made by counsel was not error, where the jury were instructed generally not to pay any attention to side remarks in the case. pp. 573, 5J3.</p> <p>Instructions. — Harmless Error. — Available error cannot be predicated upon the action of the court in giving or refusing to give instructions where the answers to interrogatories show that the complaining party was not injured thereby, p. 573.</p>

<p>Criminal Law. — Evidence.—Cross-Examination.—A question asked a witness for the State on cross-examination if he and another boy did not stone the house of defendant’s brother, where defendant was staying, was not competent as showing hostility of the witness to defendant, ppt. 576, 577.</p> <p>Evidence. — Objections.—Where an objection is sustained, if it appears that the evidence was inadmissible for any reason, and the decision excluding it was correct, it makes no diff erence whether the ground of objection was sufficient or not. pp. 577, 578.</p> <p>Criminal Law . — Evidence.—Cross-Examination.—A question asked a witness for the State on cross-examination for the purpose of showing the ill feeling of the witness and his associates toward defendant “Isn’t it a fact that you boys have got it in for defendant?" was incompetent, where none of the persons supposed to be hostile was named or described in any manner, and the signification of the slang phrase was not explained to the witness, pp. 578, 579.</p> <p>Evidence. — Exception.—Offer to Prove. — In order to save an exception to the ruling of the court excluding an answer to a question propounded to a witness, a statement must be made to the court of the testimony the witness would give if permitted to answer the question, before a ruling is made on such objection, and an exception reserved to the ruling at the time it is made. pp. 579, 580.</p> <p>Instructions. — Refusal to Give. — Available error cannot be predicated upon the action of the court in refusing to give certain instructions where the substance of each, so far as it stated the law correctly, was fully given in the charge of the court, pp. 581, 582.</p> <p>New Trial. — Newly Discovered Evidence. — A new trial will not be granted on account of newly discovered evidence, where such evidence is intended only for the purpose of impeachment, p. 582.</p> <p>Same. — Newly Discovered Evidence. — Where in an application for a continuance on account of the absence of a witness the defendant stated in an affidavit filed in support of the application what he expected to prove by the absent witness, a new trial will not be granted on account of newly discovered evidence of such witness. p. 588.</p>

<p>Master and Servant. — Railroads.—Negligence.—Instruction.—An instruction in an action against a railroad company for the death of an employe caused by the alleged negligence of defendant in maintaining a defective foot-board on its engine which gave way and caused the death of the employe, wholly ignoring decedent’s knowledge of the defect, and authorizing a verdict for plaintiff even though the decedent may have had knowledge of the defect or danger, or could have had such knowledge by the exercise of ordinary care, was erroneous, pp. 585-587.</p> <p>Instructions. — Correction.—No. erroneous instruction cannot be cured by another instruction, which correctly stated the law. p. 587.</p> <p>Negligence. — Master and, Servant. — Burden of Proof. — In an action against a railroad company for the death of an employe caused by the alleged negligence of defendant in maintaining a defective foot-board on its engine which gave way and caused the death of the employe, the burden of proving the decedent’s want of knowledge of the defect, actual and constructive, was upon plaintiff, and not upon defendant, pp. 587, 588.</p>

<p>Vendoe and Puechasee. — Vendors’ Liens. — Husband and Wife.— Principal and Agent. — The purchaser óf real estate at an executor’s sale procured the receipt of plaintiff, an heir and beneficiary, for the amount of her interest in the estate, under the agreement that he would pay the amount thereof to her with interest, or would deed her part of the real estate in payment thereof, which receipt the executor accepted in lieu of that amount of the purchase money. The purchaser sold the land to F. whose husband as her agent had actual notice of plaintiff’s claim before the deed was made and before any part of the purchase money was paid. Held, that the agreement giving the original purchaser the option of paying the purchase money in land did not prevent the enforcement of plaintiff’s lien, and that the land was subject to said lien in the hands of the last purchaser.</p>

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

<p>Evidence. — Weight.—Where in an action on a note the defendant pleaded a set-off on account of rents claimed to be due under a lease, and the lease failed to show on its face any obligation against plaintiff, the action of the court in excluding the lease will not be disturbed on appeal, there being some evidence to support the finding that plaintiff was not the lessee.</p>

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

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

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

<p>Drains. — Maintenance.—Allotment.—The facts that lands were not assessed for the construction of the drain, and that it had been adjudged when the drain was projected that they would not be benefited by its construction, will not exempt such lands from liability for the maintenance of the drain under the provisions of §5633 Burns 1894. p. 618. t</p> <p>Same. — Maintenance.—Allotment.—Constitutional Law. — The act of 1889, §§5632-5636 Burns 1894, providing for the allotment of the work of maintaining a public drain is not unconstitutional as taking private property for public use -without just compensation, and without due process of law, since the statute makes ample provision for notice to the landowners, and for a hearing upon all questions of law and fact, not only before the drainage commissioner, but, on appeal, in the circuit or superior court of the county, and by the express terms of the statute, there can be neither assessment nor allotment in the absence of equal compensating benefits, p. 620.</p>

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

<p>Practice. — Evidence.—Offer to Prove. — Appeal and, Error. — No question is presented on the ruling of the court in excluding the answer to a question propounded to a witness, where the offer to prove was not made until after the 'objection to the question was sustained and an exception reserved, pp. 634, 635.</p> <p>Evidence.- — Dying Declarations. — Criminal Law. — It is not necessary that a dying declaration be made in the presence of defendant in order to render it admissible in the trial of a murder case. pp. 635, 636.</p> <p>Same. — Dying Declarations. — Criminal Law. — An objection to the admission in evidence of dying declarations in the trial of a murder case, on the ground that the written statement was the best evidence, was properly overruled, where it was not shown that the declaration testified to was reduced to writing, pp. 635, 636.</p> <p>Same. — Objection.—Appeal and Error. — An objection to the admissibility of evidence which was not presented in the trial court will not be considered on appeal, p. 636.</p> <p>Same. — Dying Declarations. — Criminal Law. — In a prosecution charging defendant with poisoning her daughter-in-law, the dying declaration of deceased testified to by a witness that “ This was a strange death to die, to be poisoned by her mother-in-law ” was the statement of a fact, and was properly admitted in evidence, pp. 636-639.</p> <p>Instructions. — Evidence.:— An instruction containing language wdiich casts suspicion upon or disparages or discredits any class of evidence is erroneous, pp. 639, 640.</p> <p>Same. — Reasonable Doubt. — Criminal Law. — An instruction in a criminal case informing the jury that if any one of them entertained a reasonable doubt upon the evidence “the jury in such case cannot find the defendant guilty,” was a misleading and inaccurate statement of the law, and was properly refused, pp. 640-644*</p> <p>Appeal and Error. — Separation of Jury. — Objection Made for the First Time on Appeal. — An objection to the action of the court in permitting the jury to separate at its adjournments, in the trial of a murder case, ■will not be considered on appeal, where no objection thereto was made in the court below, p. 644.</p> <p>Misconduct of Counsel. — Waiver.—Appeal and Error. — A cause will not be reversed because of the alleged misconduct of counsel, where the statements objected to were promptly withdrawn by the court from the consideration of the jury and no motion to set aside the submission and discharge the jury was made. pp. Qkk,</p>

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

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

<p>Municipal Corporations. — Street Improvements. — Assessment of ' x J Costs. — Front-Foot Rule. — Injunction.—A street improvement pro66ng whereby it is proposed to assess the total costs of the improvement to the abutting property according to the front-foot rule, regardless of the special benefits accruing from the improvement, and largely in excess thereof in some instances, is not authorized by any statute in force in this State, and may be enjoined by any person affected by the improvement.</p>

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

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

<p>Appeal and Error. — Record.—Instructions.—Criminal Law. — Available error cannot be predicated upon the action of the court in refusing offered instructions in the trial of a criminal cause, where the record does not affirmatively show that it contains all of the instructions given, p. 671.</p> <p>Evidence. — Criminal Law. — Evidence of defendant’s failure to appear to the indictment according to the conditions of his recognizance, the forfeiture of his bail, his flight and re-arrest afforded some basis from which guilt might be inferred, p. 671.</p> <p>Same. — Impeachment.—An immaterial matter cannot be made the basis for an impeaching question, p. 672.</p>

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

<p>Master and Servant. — Negligence.—Scope of Employment. — A complaint in an action against a railroad company for the death of a freight conductor caused by a trestle giving way, alleged that decedent in charge of a train arrived late at night at a station about a mile from the trestle work, and was informed by the superintendent of the road of a severe rain-storm, and of his apprehended danger to the road at a culvert about halfway between the station and the trestle, and at another point beyond the trestle, but nothing was said about the trestle; that the conductor detached the locomotive, and with the engineer, fireman, brakeman and road superintendent, started forward to inspect the road at said points, found the first culvert uninjured and proceeded to the second, and on attempting to cross the trestle, it gave way and the conductor was killed. Held, that the action of the conductor was not such a departure from the work he was employed to perform as to warrant the court in ruling as a matter of law that he was thereby guilty of negligence. pp. 683-689.</p> <p>Negligence. — Evidence.—Railroads.—Master and Servant.— In an action'against a railroad company for the death of a freight conductor caused by a trestle giving way, the evidence showed that the stream across which the bridge was built ran through a wooded district; that the stream was subject to sudden rises, and, when at flood, carried a large amount of driftwood; that defendant had removed a truss-bridge and replaced it with a trestle bridge, the trestle posts standing upon mudsills resting upon leveled rock stratum at the bottom of the stream, without anchors; that the trestle bents were twelve and one-half feet ápart and were placed at such an angle to the channel and current of the stream that a straight line up and down the channel would not show more than three feet between the bents for the passage of driftwood; that on the morning after the accident four or five 'posts of the trestle were found broken and a large tree found resting on the bank below the bridge. Held, that the question of defendant’s negligence was properly left with the jury, and that the evidence was sufficient to sustain a verdict for plaintiff. pp. 689-693.</p>

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

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

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

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

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