Volume 155 — Indiana Reports

<p>Mandamus. — Alternative Writ. — Joinder of Issues. — The right to an alternative writ of mandate may exist independently of the ability to prove it, and the fact that a county order was indorsed as paid will not defeat an action for an alternative writ of mandate to require the county treasurer to pay the order, since under the provision of §1185 Burns 1894 issues of law and fact may be joined as in civil cases, pp. J, 5.</p> <p>Same. — Laches.—The mere delay of sixteen months after the action accrued in applying for a writ of mandate to compel a county treasurer to pay an order on a particular fund cannot be considered unreasonable, or laches of such a character as will alone defeat the action, pp. 5, 6.</p> <p>Counties. — Treasurer.—State School Fund. — In the receipt and disbursement of the State school funds a county treasurer exercises a State function, and an action cannot be maintained against the county for the recovery of such funds, pp. 6, 7.</p> <p>Mandamus. — County Treasurer. — Demand. — Where in an action against a county treasurer for an alternative writ of mandate to require the payment of an order the term of the treasurer against ■whom the action was brought expired and his successor was substituted as the party defendant, the petition need not allege a prior demand upon the substituted defendant, pp. 7, 8.</p> <p>Mandamus.- — Alternative Writ. — Joinder of Issues. — In an action for an alternative writ of mandate to require a county treasurer to pay a balance alleged to be due on an order on the State school fund, an answer by defendant that the order was marked paid by his successor and deposited with the county auditor as a canceled order, that payment was asserted on one side, and denied on the other, as to such alleged balance, and that defendant could not safely pay same until the amount unpaid, if any, was first determined, in an action for that purpose, constitutes a complete defense to such proceeding. pp. 9-13.</p> <p>Same. — Evidence.—County Treasurer.- — County Order.— In the trial ■ of an action for a writ of mandate requiring a county treasurer to pay a balance alleged to be due upon an order on a particular fund, the court erred in excluding the testimony of a witness tending to prove that there was no money in the treasury at the time demand for payment was made that could be used in payment thereof. pp. 13, II.</p> <p>Same. — Evidence.— Presumption.— County Treasurer. — In an action for a writ of mandate to require a county treasurer to pay a balance alleged to be due upon a county order on a particular fund, it cannot be conclusively presumed against a successor in office that the money remained in the treasury until paid out according to law. p. II.</p> <p>Same. — Pleading. — Argumentative Denial. — An answer in a mandamus proceeding to require a county treasurer to pay a balance alleged to be due upon an order on a particular fund, traversing the averment of the complaint that such sum, or any sum, was unpaid upon the older, and also that the money liable for the payment was in the treasury at the time the demand was made, was good as an argumentative denial, and, in the absence of a general denial, a demurrer thereto was properly overruled, pp. II, 15.</p>

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

<p>Railroads. — Occupation of Streets. — Removal. — Municipal Corporations. — Pleading.—In an action by a town to compel a rail-' road company to remove its tracks from a street, an answer that defendant had used the tracks complained of by leave and license of the town for more than thirty years, anu had expended large sums of money in building, maintaining, and equipping the same, with full knowledge and consent of plaintiff, is not bad for failure to justify the use of the tracks for switching, yard, and storage purposes, where the complaint does not show any use of the street for switching, yard, and storage purposes that would necessarily be unlawful, except on the basis that defendant had no right in the street at all. pp. 18-22.</p> <p>Same. — Occupation of Streets.— Municipal Corporations. — Section 5153 Bums 1894 relating to the general powers of railroad companies to construct their roads does not authorize such companies to lay their tracks longitudinally upon the streets of a municipality without its consent or over its objection, pp. 22-25.</p> <p>Municipal Corporations.— Railroads. — Occupation of Streets.— Municipal corporations, under their general powers, have authority to grant railroad companies the right to lay their tracks longitudinally upon a street, provided that the use does not destroy or unreasonably impair the street as a highway for the general public. pp. 22-25.</p> <p>Railroads. — Occupation of Streets. — Adverse Possession. — Presumption. — Municipal Corporations. — The occupation of the streets of a municipality by a railroad company with its tracks for a period of thirty years under such circumstances as to amount to adverse possession raises the presumption of a grant, pp. 25, 26.</p>

<p>Erom the St. Joseph Oireuit Court.</p>

<p>Appeal and Error. — Interlocutory Order. — Contempt.—Depositions. —Witnesses.—An order of court made under the provisions of §420 Burns 1894 requiring a witness to appear before an officer and give his deposition is an interlocutory order, and not a final order from which an appeal will lie.</p>

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

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

<p>Criminal Law. — Larceny.—Felonious Intent. — Jt is not necessary, to constitute the crime of larceny, that the taker should have intended to appropriate the property taken to his own use. p. 46.</p> <p>Same. — Larceny.—Felonious Intent. — An instruction in a prosecution for larceny that to entitle defendant to an acquittal the jury must be satisfied from the .evidence that the felonious intent did not exist is erroneous, p. 47.</p>

<p>Appeal and Error.— Record. — Evidence.—Time of Tiling.— Act of 1899.— Under the provision of the act of 1899 (Acts 1899, p. 384) that the transcript of the evidence shall be filed with the clerk within a time fixed by the court trying such cause, the court must act while the cause is before it, and when the time granted had expired, with nothing done, it was too late at the next term of court to fix a time within which the transcript of the evidence might be filed, as the cause was no longer in fieri.</p>

<p>Malicious Prosecution. — Evidence.—Sufficiency.—In the trial'of an action for malicious prosecution it was shown that plaintiff sold defendant a note purporting to have been executed by plaintiff’s brother-in-law, a non-resident of the State; that plaintiff and' defendant had resided in the same city for a number of years and plaintiff’s reputation for honesty and integrity was good, but the alleged maker of the note was unknown to defendant. When the note matured defendant wrote the maker requesting payment, and was informed by letter that the note was a forgery, whereupon he sent an officer for plaintiff, who gave a minute detail of the transaction out of which the note was given, and. offered to give defendant security in double the amount of the note until the validity thereof could be verified; but that defendant in disregard of plaintiff’s statement and offer, and without advising with the prosecuting attorney, who was present, and against the advice of the chief of police, filed an affidavit against plaintiff charging him with uttering a forged note, upon which a warrant was issued and he was taken into custody. An indictment was subsequently returned against plaintiff, charging him with the offense, hut a nolle prosequi was entered for the reason that the maker of the note had appeared before the grand jury and testified that the note was genuine. Held, that the evidence was sufficient to support a judgment for plaintiff, pp. 50-58.</p> <p>Same. — Probable Cause. — Instruction.—Where defendant caused plaintiff to be prosecuted for uttering a forged bote upon' receipt of a letter from the alleged maker denying the execution of the note, an instruction in ah action against defendant for malicious prosecution to the effect that if defendant believed the statement contained in the letter to be true, and had no knowledge or in- ' formation of any fact which would cause a man of reasonable intelligence or caution to doubt or disbelieve the statement, then there was probable cause for the prosecution, and the verdict should be for defendant, was properly refused, pp. 58-57.</p> <p>Instructions. — Hypothetical Statement. — The rule that a hypothetical instruction must contain a statement of all of the material facts which the evidence reasonably tends to prove applies only to the substantive and controlling facts, and not to the subsidiary and evidentiary facts, pp. 57, 58.</p> <p>Malicious Prosecution. — Probable Cause. — Instructions.—Probable cause does not depend upon the guilt or innocence of the plaintiff, but upon appearances deduced from facts known to the defendant, and information received by him, and -properly investigated, of a character to produce in the mind of a reasonablyprudent and cautious person the honest belief that the crime charged had been committed, and an instruction in an action for malicious prosecution to the effect that if the evidence preponderates in favor of the defendant, and establishes the crime charged, the defendant then had the right to institute the criminal proceeding against plaintiff, was erroneous, as the jury might reasonably infer therefrom that the only defense, so far as probable cause was concerned, was proof that the plaintiff was actually guilty of the crime for which he was prosecuted, pp. 59, 60.</p>

<p>Appeal and Error. — Joint Assignment of Error. — A joint assignr ment of error to the conclusions of law presents no question for review, where each appellant separately excepted to each conclusion of law. p. 61.</p> <p>Corporations. — Corporate Existence. — DeFacto Corporation. — Collateral Attach. — When there is a statute authorizin g the creation of a corporation, an attempt to comply with the statute, and an actual exercise of corporate functions, although some formalities required by law have been omitted, there is at least a corporation defacto, the legal existence of which can only be questioned in a direct proceeding brought by the proper person for that purpose. pp. 62-64.</p> <p>Same.— Corporate Existence. — DeFacto Corporations..— Collateral Attach. — The rule that the corporate existence of a de facto corporation cannot be attacked collaterally is not limited to cases where one by contract admits corporate existence, but is a rule of general application, p. 64.</p> <p>Same. — DeFacto Corporations. — Enforcement of Contracts. — The contracts of defacto corporations may be enforced by and against them the same as if they were corporations de jure. p. 66.</p> <p>Same. — Stochholders.—Diability of Stochholder as Partner. — Stockholders in a defacto corporation cannot be held liable as partners, although there have been irregularities, omissions, and mistakes in incorporating the company, pp. 65, 66.</p>

<p>Guardian and Ward. — Failure of Guardian to Account. — Action oh Bond. — Limitations.—An action by a ward to recover on his guardian’s bond for failure of guardian to account for moneys received, such failure being due to fraud or mistake, is barred after three years from final settlement.</p>

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

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

<p>Statutes. — Subject-Matter.—Title.—Mines and Mining. — Constitutional Law. — The act of 1891 (Acts 1891, p. 57) regulating the operation of coal mines and vesting the right of action for the recovery for the death of an employe in certain persons, is not invalid as em- ■ bracing more than one subject and matters properly connected therewith, nor because of its failure to express the subject of the act in the title thereof, under the provision of article 4, §19 of the State Constitution that “every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” pp. 10^-109.</p> <p>Mines and Mining. — Death by Wrongful Act. — Action—Parties.— Damages. — Under the provision of the act of 1891 (Acts 1891, p. 57) relating to coal mines, vesting the right of action for the recovery for the death of an employe in certain persons therein named, the administrator of a deceased employe of a coal mining company, operated under the provisions of said act, cannot maintain an action for the death of such employe, caused by an explosion of gas in the mine, although decedent was employed therein as a blacksmith at the time of the accident, and was not engaged in actually mining coal. p. 109.</p> <p>Appeal and Error. — Parties.—Substitution.—Where a cause was reversed on appeal for the reason that the right of action was .vested in a person other than appellee, the person authorized to maintain the action in the court below cannot be substituted as a party during the time granted for filing a petition for a rehearing and be allowed to occupy the same position, and exercise the same rights, • as though he had been originally a party to the action, pp. 109-11%.</p>

<p>From the "Warren Circuit Court.</p>

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

<p>Statutes. — Husband and Wife. — Childless Second Wife. — Children by Former Marriage. — Deeds.—Sections 3, 3 and 4 of the act of 1889 (Acts 1889 p. 430), relating to conveyances made by children whose father left surviving him a childless second wife, form a complete statute in themselves, and the subject-matter of such sections is clearly expressed in the title thereof, pp. 145, 146.</p> <p>Descent and Distribution. — Husband and Wife. — Childless Second Wife. — Children by Former Marriage. — Deeds.—Estoppel.—Under *the provisions of §2 of the act of 1889 (Acts 1889 p. 430), children by a former marriage who executed a deed of conveyance during the life of a childless second wife to lands descending from their father, purporting to convey complete fee simple title to the whole tract, except a life estate of the widow in an undivided third thereof, are estopped from claiming title to the one-third interest as the forced heirs of the widow, at her death in 1897, although the deed of conveyance was executed prior to the passage of the act of 1889, and at a time when the law of descent was construed as giving such heirs no present interest in the share of their stepmother in such estate, pp. 143-148.</p> <p>Same. — Husband and Wife, — Childless .Second Wife. — Children by Former Marriage. — Deeds.—Estoppel.—Impairment of Contracts.— Where children by a former marriage executed a deed of conveyance, during the life of a childless second wife, to lands descending from their father, purporting to convey complete fee simple title thereto, except the life estate of the widow in an undivided one-third, the enforcement of the provisions of §2 of the act of 1889 (Acts 1889 p. 430), enacted subsequently to the execution of the deed, but before the death of the widow, making such deed binding on them when their expectancy was realized, does not amount to an impairment of their contract, pp. 148-150.</p>

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

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

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

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

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

<p>Officers. — Impeachment.—Appeal and Error. — Joint Assignment.— In a proceeding to impeach a public officer, undpr the act of 1897 (Acts 1897 p. 278), the person who verifies the accusation is not a party to the proceeding, and an assignment of error by the State, on appeal from the action of the court in sustaining a demurrer to the accusation, made jointly with the person who verified the accusation, presents no question.</p>

<p>Appeal and Error. — Interlocutory Orders. — Building and Loan Mssociations. — Receivers.—An appeal by the holders of paid up and prepaid stock in a building and loan association will not lie from an order of court directing the receiver of the association, on his petition for instructions, to take proper steps to recover dividends illegally paid to holders of such stock.</p>

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

<p>Special Finding. — Motions.—Practice.—Motions to modify a special finding, or to make additional findings, are not recognized by the code of procedure, and such motions are properly overruled, rejected or stricken out by file court, p. 180.</p> <p>Appeal and Error.— Record. — Motions.—A motion to strike out a pleading and the ruling of the court thereon can only be made part of the record by bill of exceptions or by order of court, p. 181.</p> <p>Same —Record.—Motions.—Order of Court. — To make the ruling of the court in sustaining a motion to strike out a pleading a part of the record by order of court, the motion, ruling and pleading must he set out in full in the order, p. 181.</p> <p>Evidence. — Variance.—Appeal and Error. — A cause will not be reversed on appeal because of a variance between the note described in the complaint and the one produced at the trial and offered in evidence, where no reason was given at.the time why said note was not admissible in evidence, pp. 181-185.</p> <p>Appeal and Error. — Special Finding. — Practice.—It is not reversible error to overrule a motion for judgment on a special finding and conclusion of law, if the judgment when so rendered would not conform to the conclusion of law, even if such conclusion is erroneous. The proper remedy is by an exception to such conclusion of law, and assigning the same as error on appeal, p. 186.</p> <p>Special Finding. — Pleading.—Husband and Wife. — A conclusion of law in an action to foreclose a mortgage is not erroneous as to defendant because of the failure of the special finding to show that she was the wife of her codefendant, as alleged in the complaint, where she joined with her husband in a general denial which stated that they were husband and' wife, and no answer was filed denying that they were husband and wife. p. 186.</p>

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

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

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

<p>Appeal. — Joint Assignment of Errors. — An assignment of errors joined in by one who did not appear in the court below, and who took no exception to any action or ruling of the court, is insufficient.</p>

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

<p>Trial. — Jury.—Telegram to Juror. — Criminal Law. — A cause will not be reversed because of the action of the court in informing one--of the jurors in the presence and hearing of the other jurors that he had a telegram for him from his wife, and that he had answered it, telling her that her husband would be home as soon as the trial was concluded, where the nature of the telegram is not disclosed by the record, pp. 267, 268.</p> <p>Instructions. — Reasonable Doubt. — Criminal Law. — Harmless Error. — A criminal cause will not be reversed because of a defective instruction on the question of reasonable doubt, where the charge was not impressed with affirmative error, but was incomplete or obscure, and the court was not requested to give an instruction embracing a more complete exposition of the law relative to the question, and it is not shown that the complainant was prejudiced to any extent in any of his substantial rights, pp. 268-271.</p> <p>Same. — Malice.—Criminal Law. — An instruction that malice as used in the statutes defining murder has a technical meaning, including not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive, that it is not confined to ill will toward one or mpre individual persons, but is used and intended to denote an action growing from any wicked or corrupt motive — a thing done with bad or malicious intent — where the fact has been attended by such circumstances as carry in them the plain indication of a heart regardless of social duty, and fatally bent on mischief, is a proper definition of malice, and the further statement therein that “malice is implied from any deliberate and cruel act against another, however sudden,” was not erroneous as invading the province of the jury. pp. 271, 272.</p> <p>Instructions. — Malice.—Criminal Law. — Where in a prosecution for murder it was shown that after defendant had fired the fatal shot and the deceased had staggered and retreated from twenty to forty feet and ceased to make any demonstration or effort to inflict injury, that defendant stood up in his buggy and deliberately fired another shot at deceased, it was not error to instruct the jury that they might consider the circumstances of the firing of the second shot along with other circumstances as tending to show malice in the mind of defendant, pp. 272-274-</p> <p>Same. — Evidence.—A cause will not be reversed on the ground that certain instructions given were not applicable to the evidence, where there was some evidence to which the instructions complained of were applicable, p. 274.</p> <p>Sake. — Refusal to Give. — Appeal and Error. — A cause will not be reversed because of the action of the court in refusing to give an instruction where it does not affirmatively appear from the record that the instruction was tendered before the commencement of the argument with a request that it be given, p. 275.</p> <p>Criminal Law. — Homicide.—A verdict finding defendant guilty of murder in the second degree will not be disturbed on appeal on the evidence, where it was shown that defendant was sitting in his buggy near the sidewalk engaged in a conversation with another person, and, upon seeing deceased pass along the sidewalk, accosted him with vile language which so angered deceased that he came over to where defendant was sitting, when defendant struck him with a horsewhip and deceased grabbed the whip and struck defendant, whereupon defendant drew a revolver and fired the fatal shot, and when deceased was reeling from the effects of the shot, defendant stood up in his buggy, fired the second shot, and drove .away saying that he had fixed or settled him. pp. 275, 276.</p> <p>Same. — Impaneling Grand Jury. — Appeal and Error. — A cause will not be reversed because of the action of the court in denying defendant’s motion in arrest of judgment based upon the ground that the record did not show that the grand jury which returned the verdict was duly impaneled, sworn, and charged, where the record showed that the grand j ury of the county returned into court the indictment upon which defendant was tried, and that defendant was arraigned thereon and entered a plea of not guilty, without imposing any objection to the impaneling of the jury. p. 276.</p>

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

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

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

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

<p>Criminal Indeterminate Sentence Law. — The act of February 26, 1897 (Acts 1897 p. 69), known as the indeterminate sentence law, is valid, p. S94-</p> <p>Same. — Indeterminate Sentence Law. — Verdict.—A verdict finding defendant guilty of manslaughter is not rendered void because it contains the statement that defendant “is about 55 years old,” since the finding of age has relation to the place, not the justice, of the punishment, p. 294.</p> <p>Criminal Law. — Manslaughter.—Evidence.—Sufficiency.—Defendant rented to deceased a stall in his barn in which to keep a horse a part of each day. Deceased brought feed for his horse which, without objection from defendant, he kept in that part of the bam where the latter kept his feed. In opening the barn door, deceased had to free a hasp held over a staple by a pin. Defendant, becoming suspicious that deceased was stealing feed, concealed himself in the barn loft and saw him taking it. On tbe following night defendant shot and mortally wounded deceased while in the act of stealing hay. There was no evidence that defendant’s feed was kept in a place that was not openly accessible from the stall rented by deceased. Held, that the evidence is sufficient to sustain a conviction, pp. 294, 295.</p> <p>Same. — Admissions.-—-Instruction.—Though, in the trial of a criminal case, the jury “may determine the law for themselves,” the court is not invading the province of the jury in stating to them the law as applicable to the facts as sworn to by defendant, pp. 295, 296.</p> <p>Same. — Instruction.—The following instruction: “If you find,” etc., stating the facts that constitute voluntary manslaughter, “you should find the defendant guilty of voluntary manslaughter,” is not erroneous, as being an invasion of the province of the jury. p. 296.</p> <p>Same. — Homicide.—Instruction.—Where, on the trial of one charged with homicide, there was no evidence that would justify a claim that the homicide resulted from an attempt to prevent a burglary, an instruction as to the effect of burglary as a defense was error prejudicial to the prosecution, and of which the defendant could not complain, pp. 296, 297.</p> <p>Same. — Admissions.—Harmless Error. — Error in admitting testimony of admissions of defendant which were obtained by coercion is cured by the defendant testifying to the same facts, p. 297.</p> <p>Trial. — Misc.nduet of Juror. — Appeal.—Where misconduct of a juror was alleged in a motion for a new trial, and the evidence thereof as presented to the trial court was conflicting, such evidence will not be reviewed on appeal, p. 297.</p>

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

<p>Criminal Law. — Indictment.—Indorsement by Foreman of Grand Jury. — An indictment which was not indorsed “a true bill” over the signature of the foreman of the grand jury who returned it into court is insufficient.</p>

<p>Appeal and Error. — Clerk’s Certificate. — Drains.—The certificate of the clerk to the transcript in an appeal in a drainage proceeding that the transcript contains true and complete copies of all the papers introduced and entries made in said cause is insufficient, as required by §662 Burns 1894, as it does not show that all papers pertaining to the case are contained in the transcript, p. 310.</p> <p>Same. — Separate Assignments of Error. — Drains.—In a proceeding for the construction of a drain, under §5655 et seq. Burns 1894, the rights of each party remonstrating must be separately determined by the jury, and if a new trial is desired by one or more of the remonstrators. who are the owners of separate tracts of land, a separate motion therefor must be filed, and, upon appeal from the action of the court in overruling such motions for a new trial, a separate assignment of error should be filed by each landowner, p. 311.</p>

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

<p>Mortgages. — Trust Deeds. — Complaint.—Where in an action to have a deed declared a mortgage, and for an accounting, the complaint alleging that a bank after foreclosing a mortgage on certain lands which plaintiff formerly owned, and on which she held a second mortgage, agreed with plaintiff that if she would, pay and secure its claim within a certain time it would deed her the land, and that she afterward entered into a contract with defendant to furnish the money to pay the bank and take and hold the lard in his own name as security, but that defendant afterward claimed to be the absolute owner of the real estate and refused to surrender the same to defendant, is not bad for failing to allege that defendant had notice of plaintiff’s contract with the bank at the time he accepted the deed and that she had performed all of the conditions of such contract, or because it was not disclosed by the complaint that plaintiff had a mortgageable interest in the land. pp. 317-321.</p> <p>Mortgages. — Trust Deeds. — Evidence.—Where real estate is transferred as the mere security for a debt, no matter by what form of conveyance. the transferee takes merely as a mortgagee, and has no other right or remedy, and parol evidence is admissible to show that a deed absolute on its face was intended to be a mortgage only. pp. 321, 322.</p> <p>Same. — Trust Deeds. — Complaint.—A complaint in an action to have a deed declared a mortgage, and for an accounting, alleging that certain real estate was conveyed to defendant to secure the payment of money advanced by him for plaintiff, and that defendant claims to be the absolute owner of the land, is not bad for failing to allege a tender of the amount due defendant, or plaintiff’s ability and readiness to perform the conditions of the contract upon her part. p. 822.</p> <p>Same. — Trust Deeds. — Interest.—Usury.—Plaintiff, in order to secure an advancement made by defendant, caused certain real estate to be conveyed to him by warranty deed, absolute on' its face, but intended as a mortgage as security for the payment of the advancement. Held, that an agreement to pay the lump sum. of 510,000 over and above the legal rate of interest for the loan was usurious and void, under §7046 Burns 1894. pp. 323, 324-</p> <p>Costs. — Mortgages.—Trust Deeds. — Where in an action to have a deed absolute on its face declared a mortgage, and for an accounting, the defendant answered, claiming to be the absolute owner of the real estate, and the issue thus tendered was decided against defendant, the costs of such issue were properly taxed, against defendant. p. 324.</p>

<p>Mortgages. — Liens.—Contracts.—The holder of a lien upon real estate surrendered the same in order that the owner might mate a larger loan thereon with a building and loan association. The association entered into a written agreement that after the payment of “all mechanics’ and other liens, which have been or may be hereafter filed against the property described in the mortgage, * * * and when said buildings are fully completed, and all material and labor fully paid,” any sum remaining should be paid to the holder of the original lien. After the payment of the liens, there remained the sum of ¡5800.39, which the association paid to the mortgagor. Held, in an action by the association to foreclose its mortgage, that the original lien holder was entitled to recover on a cross-complaint the amount paid by the association to the mortgagor.</p>

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

<p>Homicide. — Indictment.—Where Death was Caused in Manner Unknown to Grand Jury. — Where the evidence before the grand jury points to the commission of a murder by the accused, but from such evidence they are in doubt as to the cause of death, a count may be framed alleging that the death was caused in some manner to them unknown, pp. 848, 348.</p> <p>Same. — Indictment.—Allegation of Assault. — In an indictment for murder, it is not necessary to charge, in formal and express terms, an assault or an assault and battery, p. 844.</p>

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

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

<p>Deeds. — Record. — Notice.—Quieting Title. — Pleading.—A complaint in an action to quiet title to real estate as against one claiming title by sheriff’s sale, alleging that the husband of plaintiff, having good title to the land in controversy, conveyed it to plaintiff by deed before defendant recovered judgment against the husband, is insufficient, where it was not alleged that plaintiff had her deed recorded within forty-five days, or before the levy and sale, or that defendant had notice of plaintiff’s title before it purchased the property.</p>

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

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

<p>Appeal and Error. — Harmless Error. — In an action against a city marshal and others for damages for removing electric light poles and wires belonging to plaintiff, the alleged error of the court in sustaining a demurrer to defendants’ answer in justification is not available to appellants where they admitted in their brief that the court permitted all evidence to be admitted under the general denial which would have been admissible under the answer in justification. pp. 375, 376.</p> <p>Licenses. — Electric Light Companies. — Municipal Corporations. — A grant to an electric light company to plant and erect poles in the streets of a city for the purpose of furnishing electric lights to the citizens of such city, reserving the right on the part of the city to revoke the grant, and demand that the poles be removed, and remove the same if necessary, constituted a bare license, revocable without causa at the will of the city council, pp. 380, 381.</p> <p>Same. — Electric Light Companies. —Municipal Corporations. —The provision of §4303 Burns 1894, authorizing cities to grant by resolution or ordinance, under such restrictions as the common council may deem proper, to any person or corporation, the right to maintain in the streets, alleys, and other public places in such city, poles, wires, and other necessary appliances for the purpose of supplying electric or other light, carries with it the right to impose any terms on the grant not forbidden by law, and the discretion of the common council is not confined to the mere restriction of methods of use, but extends to restriction of time. pp. 380, 381.</p> <p>Municipal Corporations.— Resolutions. — Preamble.—The preamble of a resolution may be looked to in aid of the interpretation of an ambiguity in the resolution, but, if the terms of the resolution are clear, the preamble cannot be allowed to cast a doubt upon the meaning, p. 382.</p> <p>Municipal Corporations. — Resolutions.—Motives of Council. — In an action against city officers for damages for removing plaintiff’s electric light poles and wires from the streets, the motives or influences that led the councilmen to pass the resolution ordering such removal were irrelevant where the subject-matter was within the scope of their authority, p. 382.</p> <p>Same. — Licenses. — Cancelation. — Removal of Electric Light Poles from Street. — Where, by the terms of a grant to an electric light company to occupy the streets of a city, the common council thereof had authority to terminate the license at will the failure of the company to remove its poles on receiving legal notice from the council so to do, rendered them a nuisance per se, and the city had the right to remove them summarily, pp. 382, 383.</p> <p>Appeal and Error. — Joint Assignment. — Where on appeal from a judgment against certain city officers for damages for removing electric light poles from the streets of the city the evidence established the defense of justification on the part of some of the defendants only, the judgment will not be reversed for such reason on a joint motion on the part of all of the defendants for a new trial, p. -383.</p> <p>Judgments. — Excessive Damages. — A judgment against the city marshal and members of the common council for damages in the sum of §4,000 in favor of an electric light company for the removal of its poles and wires from the street, was excessive, where the city had the right to remove the poles, since the measure of damages was the difference in value between the poles and wires properly removed and as they were actually removed, pp. 383, 38/f.</p>

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

<p>Waters and Water Courses. — Pollution.—Drains.—Manufactures. —Damages.—The rule recognizing the right of a city located on the banks of a stream to discharge its sewage therein, or of a landowner in developing and utilizing the natural resources of his land to discharge water therefrom, which by its natural flowage finds its way to lower lands or into streams, does not apply to a company engaged in the manufacture of articles of commerce for its own profit, which might be operated elsewhere less injuriously to the rights of others, in bringing to its factory material from which, by artificial means, it evolves putrescent, deleterious, and other waste matter which it discharges into a stream, pp. 4.00, Jfil.</p> <p>Same.— Pollution.— Manufactures. — Riparian Proprietors. — Damages. — The fact that a manufacturing company has expended a large sum of money in the construction of its plant, and that it conducts its business in a oareful manner and without malice, will not relieve it from liability to a riparian owner for damages for depositing refuse matter into a stream, pp. Jfil, 402.</p> <p>Waters and Water Courses. — Pollution.—Riparian Proprietors.— Damages. — The fact that a water course is already contaminated from various causes does not entitle others to add thereto, nor preclude persons through whose land the water flows from obtaining relief by injunction against its further pollution, p. 402.</p> <p>Same. —Pollution. — Riparian Proprietors. — Damages.—Estoppel.— A riparian owner who donated straw to induce the construction of a strawboard plant and stood by while a large sum of money was expended in its erection, without knowledge or notice that in the operation of the plant the waters of a stream would be unlawfully corrupted and a public nuisance thereby created, is not precluded from asserting a claim for damages for injury to his property and for an injunction, p. 402.</p> <p>Damages. — Waters and Water Gourses. — Pollution.—Riparian Proprietors. — In an action by a riparian owner against a manufacturing company for damages for the pollution of a stream, the court was not restricted to the mere depreciation of property in ascertaining the damages, but might take into consideration the inconvenience and discomfort to plaintiffs and their families caused thereby, pp. 402, JfiS.</p>

<p>Municipal Corporations. — Street Improvements. — Injunction.—An action will not lie to enjoin a city from proceeding with a street improvement because of a statement in the declaratory resolution that the city will assess the total cost of the improvement against the abutting property without reference to the question of benefits, where the resolution provided that the improvement should be made under the provisions of the act of 1889 (Acts 1889, p. 237), known as the Barrett law, which gives to the abutting property owner the right to be heard before a tribunal empowered, and in duty bound, to adjust all questioned assessments to the basis of actual special benefits received by the improvement.</p>

<p>Injunction. — Legal Remedy, — Counties.—Contracts of Employment. —Accounts. — An action by a taxpayer will not lie to enjoin the county commissioners from entering into a contract employing a person to prepare an index to certain county records, since §7853 Burns 1891, provides an adequate legal remedy.</p>

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

<p>Appeal and Error. — Mandamus.—Alternative Writ. — A judgment on demurrer to an alternative writ of mandate will not be reversed on appeal because the demurrer was addressed to the alternative writ instead of the writ and petition, unless the facts exhibited in the petition and alternative writ entitled the relator to the relief sought, pp. 414, 415.</p> <p>Druggists. — Licenses.—State Board of Pharmacy. — Mandamus.—An action in mandamus will not lie to compel the board of pharmacy to issue an applicant a license without examination or diploma, under the provision of the pharmacy act of 1899 (Acts 1899, p. 159), requiring such board to issue a license to any person who at the time of the taking effect of the act was the proprietor or manager of a store or pharmacy in which physicians’ prescriptions were compounded, where the petition showed that the relator became the owner of the pharmacy on June 19,1899, since such act took effect April 27,1899. pp. 415-417.</p>

<p>Erom the Hamilton Circuit Court:</p>

<p>Cancelation of Instruments. — Fraud-.—Deeds.—Quieting Title.— A complaint to obtain the cancelation of a deed executed by plaintiff, and to quiet his title to the land described, alleged that plaintiff, who was old and infirm, conveyed his farm, of the value of §6,’000, to his daughter and her husband in consideration of their oral promise to give him a home with them on the land so long as he should live, and to support, provide for, nurse, and take care of him when sick, and for the further consideration that the grantees should execute to him their promissory notes for §1,000 with interest, payable at such time as should be agreed upon.; that after the execution of the deed the grantees failed to provide him with a home, and refused to execute their notes as agreed. Held, that the facts averred showed fraud and were sufficient to entitle plaintiff to a judgment canceling the deed and quieting his title to the land. pp. 4B8-^8. -</p> <p>Quieting Title.— Damages. — Complaint.—The fact that damages were claimed for the use of the land, and on account of the cutting and removal of the timber therefrom, did not render an action to set aside a deed of conveyance to the land and quiet the title there to any less an action to quiet title, p. J/,%8.</p>

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

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

<p>Mines and Minerals. — Natural Gas. — Property Rights. — Increasing Natural Flow. — Injunction.—Natural gas in the ground is so far the subject of property rights in the owners of the superincumbent lands, that, while each of them has the right to bore or mine for it on his own land, and to use such portion of it as, when left to the natural laws of flowage, may rise in the wells of such owner and into his pipes, no one of the owners of such lands has the right, without the consent of all the other owners, to induce an unnatural flow into or through his own well, or to do any act with reference to the common reservoir, and the body of gas therein, injurious to, or calculated to destroy it, and an action may be maintained by the owners of superincumbent lands to enjoin another owner from using devices for pumping, or any other artificial process, that shall have the effect of increasing the natural flow of gas.</p>

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

<p>Gravel Roads. — Injunction.—Counties.—An action will not lie to enjoin tbe board of county, commissioners from letting a contract, under the provisions of §§6924-6933 Burns Supp. 1897, for tbe construction of a free gravel road, because of irregularities in the election, since an adequate legal remedy is given by §7859 Burns 1894, granting an appeal from the action of tbe board of commissioners in such cases, pp. 485-&93.</p> <p>Statutes. — Reenactment.—Construction.—Where a statute has been construed by the courts of the State, and the same is substantially reenacted, the legislature adopts such construction, unless the contrary is clearly shown by the language of the act. p. 496.</p>

<p>Mortgages. — Delivery.—Deeds.—Priority.—One of the makers of a promissory note authorized the payee thereof to procure a loan for her from a person named, agreeing to execute a mortgage upon certain real estate and pay the proceeds thereof upon the note. The payee thereafter called at her residence with a note and mortgage which she executed and gave to the payee, who credited the amount thereof upon the note held by him, and, the next day, delivered the note and mortgage to the mortgagee, who gave him a check for the amount and filed the mortgage for record in the recorder’s office of the county. Immediately after signing the mortgage the mortgagor signed and acknowledged a deed conveying the mortgaged premises to her step-granddaughter, who was a joint maker of the first note. Held, that the delivery of the mortgage was complete and effectual, and eo instanti became a valid lien upon the land.</p>

<p>Counties. — Commissioners’ Court. — Collateral Attach. — A judgment of a board of county commissioners establishing a highway is not subject to collateral attack unless it is void. p. 504-</p> <p>Same. — Commissioners’ Court. — Highways. — The commissioners’ court has power to establish highways, but the conditions and manner of its exercise being clearly defined by statute, and the court being one of special and limited jurisdiction, the statute must be strictly followed or the proceeding will be a nullity, p. 504-</p> <p>Same. — Commissioners’ Court. — Judgment.—Highways.—A judgment of a board of county commissioners establishing a highway before the damages assessed were paid, as required by §6752 Burns 1894, is void, and the payment thirty days later did not render it valid. pp. 506, 507.</p>

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

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

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

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

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

<p>Natural Gas. — Transportation from State. — Interstate Commerce.— Constitutional Law. — The act of 1889 (Acts 1889, p. 369), in so far as it attempts to prohibit the owner of natural.gas, from transporting the same by safe methods out of the State, contravenes the federal Constitution relating to interstate commerce, and is void, since natural gas, when reduced to possession, is an article of 'commerce.</p>

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

<p>Criminal Law. — Instructions.—Record.—Instructions in a criminal case can only made a part of the record by a bill of exceptions. P-SBS-</p> <p>Same. — Larceny.—Evidence.—Defendant engaged a horse and buggy at a livery stable to drive to the country to solicit insurance, saying k® wou^ r®turn in the evening of that day. He met one of the men he was going to see, and, being informed that the other persons he desired to see were not at home, he drove to a town about forty miles distant, and wrote and mailed the owner of the horse a letter that he would be compelled to remain three or four days. He remained at the town soliciting insurance, put the horse in a livery stable, registered at a hotel, and made no effort to conceal his identity, nor to sell the horse, and again wrote the owner of the horse, and fearing he would not receive it as soon as he Should, telegraphed, informing him of his whereabouts, and of his being detained, and was arrested on that evening. Held, that the evidence was insufficient to support a conviction of defendant of the larceny of the horse and buggy, pp. 554-559.</p> <p>Criminal Law.' — Larceny.—Felonious Intent. — Where possession of • property is obtained by a bailee for hire, a subsequent appropriation of the property by the bailee is not larceny, unless the felonious intent to appropriate it existed in his mind at the time he obtained the possession, p. 559.</p>

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

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

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

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

<p>Appeals. — Decedents’ Estates. — -An action by an administrator to recover possession of the assets of the estate is not an action growing out of the settlement of the estate within the meaning of §§3009, 3610 Burns 1894, requiring appeals in such cases to be perfected within thirty days, but belongs to the general class of actions, and is governed by §645 Burns 1894 as to appeals, p. 577.</p> <p>Landlord and Tenant. — Lease.—Decedents’ Estates. — Courts.—Jurisdiction. — A lease of lands for a term of years is personal property, the title to which, upon the death of the holder, passes to his administrator, and an action may be brought by the administrator in the county in which defendant resides to set aside an assignment of the lease made by his decedent, regardless of the location of the leased premises, pp. 577, 578.</p> <p>Pleading. — Theory.—A complaint to set aside an assignment of a lease on the ground of unsoundness of mind of assignor is not rendered bad because of averments contained therein as to weakness of mind and fraud, pp. 578, 579.</p> <p>Same. — Cancelation of Instruments. — Return of Consideration. — A complaint to set aside an assignment of a lease on account of the unsoundness of the mind of the assignor, disclosing that assignor, after the assignment, went and lived with assignee until her death, is not bad for failing to aver an offer to restore to the defendant the value of the decedent’s maintenance, where it was alleged that the . assignment was made wholly without consideration, p. 580.</p> <p>Appeal and Error. — Evidence.—Exceptions.—Offer to Prove. — An exception is not properly saved on the ruling of the court in excluding evidence where the offer to prove was not made until after the objection was made and sustained, pp. 580, 581.</p>

<p>Bills and Notes.— Signatures. — Evidence.—In an action against a corporation by an indorsee on a promissory note it appeared that the name of the corporation was printed at the head of the note, and that the note was signed by an individual with the word “ President ” following the name. The complaint alleged that the person who signed the note was the president of the company; that the note was executed by the company, through such person as president, for a debt owing by the company to the payee, and that the payee accepted the same as the note of the company. Held, that extrinsic evidence was admissible to explain the instrument.</p>

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

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

<p>"Mortgages.— Deeds. —Evidence.—A deed, although absolute on its face, will be treated as a mortgage if in fact it was received as security for the repayment of money, and evidence, written or oral, is admissible to show such facts, p. 602.</p> <p>Mortgages. — Deeds.—Special Finding. — A finding in a partition proceeding that on and prior to the date of a certain deed upon which plaintiff’s title to the real estate in question depended the grantor was indebted to the grantee for borrowed money and said deed was executed as security for the same, but without the knowledge of grantee, was sufficient to support a conclusion of law treating the deed as a mortgage when considered in connection with the further finding that the grantee took the deed as security for said indebtedness. pp. 60S, 60S.</p> <p>Same. — Deeds.—Limitation of Actions. — Where a deed absolute on its face was intended as a mortgage, and the persons claiming title thereunder never occupied the land, a mere lapse of time will not bar the right to assert and show that the deed was in fact a mortgage, in defense of an action to enforce the rights of the parties under such deed. pp. 60S, 60Jj..</p>

<p>Law of Case. — Counties.—Removal of County Seat. — Taxation.—A decision, of the Supreme Court in an appeal from a judgment requiring the board of commissioners to order an election under a special act for the relocation of a county seat, holding the provisions of the act for raising revenue valid, is not the law of a new and independent action brought to compel the commissioners to order another election under such act, and its validity as a precedent is subject to review on appeal in such subsequent action, p. 607.</p> <p>Taxation. — ■ Constitutional Law. —Counties. — Removal of County Seats.— The provision of the act of 1895 (Acts 1895, p. 217) for the relocation of the county seat of Jackson county requiring the levy and collection of a special tax in the township in which the county seat should be located, to provide funds for erection of the buildings is in conflict with the general law of the State pertaining to counties, and 'is in contravention of article 4, §2 of the Constitution which provides that the General Assembly shall not pass local or special laws “for the assessment and collection of taxes for State, county, or road purposes,” and also violates article 10, §1 of the Constitution, requiring uniformity and equality of taxation. Overruling, in part, Board, etc., v. State, ex rel., 147 Ind. 476. pp. 605-610.</p>

<p>Erom the Mariou Criminal Court.</p>

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

<p>Pleading. — Death by Wrongful Act. — Action.—Complaint.—Railroads. — A complaint against a railroad company for damages for the death of plaintiff’s decedent is not bad on demurrer for failing to allege that actual damages were sustained, where the complaint alleged that decedent left surviving him his wife and an infant son. p. 635.</p> <p>Railroads.— Injury at Crossing.— Contributory Negligence.— One who attempts to drive over a railway crossing without looking for approaching trains is guilty of contributory negligence, although the view was so obstructed that he could not see approaching trains without going in advance of his team; and the fact that the persons in charge of a train approaching the crossing failed to sound the whistle and ring the bell, as required by law; did not excuse him from the exercise of the caution and vigilance demanded by the known perils of the crossing, pp. 635-6jO.</p>

<p>Criminal Law.' — Larceny.—Instruction.—Poiver of Jury to Fix Penalty. — Where an indictment in separate counts charges petit and grand larceny an instruction to the jury that if they find the defendant guilty the court will fix the punishment, is erroneous, since the jury might assess the punishment of petit larceny at imprisonment in the county jail, if the same was deemed adequate punishment for the offense.</p>

<p>Sales. — Warranty. —Action for Purchase Price of Machinery. —Where the seller of threshing machinery agreed with the purchaser that if the machinery did not do good work after a fair trial he would take it back and surrender the notes, and the machinery after a fair trial failed to do good work, the seller cannot maintain an action on the notes, pp. 6^9, 650.</p> <p>Special Finding. — Harmless Error. — In an action on promissory-notes given for the purchase price of machinery in which it was determined that plaintiff take nothing by the action, a conclusion of law that defendant was entitled to a cancelation of the notes and a release of the mortgage was not reversible error because of the fact that no cross-complaint was filed asking for their cancelation, since plaintiff was not harmed by being compelled to surrender notes which could not be enforced, pp. 650, 651.</p> <p>Practice. — Special Finding. — Amendment.—Tlie court may amend the special finding of facts during the term in which the judgment was rendered and after overruling a motion for a new trial, p. 651.</p> <p>Principal and Aq-ent. — Notice.—Notice to an agent is notice to the principal of any matter that is within the scope of the agency. pp. 651, 652.</p>

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

<p>Erom the Wayne' Circuit Court.</p>

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

<p>Building and Loan Associations. — Liquidation.—Payment of Instalments'After Association goes into Liquidation. — Bights of Borrowing Members. — Where a building and loan association abandons the objects for which it was organized by going into voluntary liquidation, it thereby releases its borrowing members from their obligations to continue the stipulated monthly payments under the contract, and where a member continued her monthly payments after the association had gone into liquidation she was entitled to have the whole amount of the instalments paid by her after the association went into liquidation, including the sum paid as dues, applied on her debt.</p>

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

<p>Appeal and Error. — Assignments of Error. — New Trial. — Assignments of error which are causes for a new trial present no question for review unless first presented by motion for new trial, p. 693.</p> <p>Judicial Notice. — Deputy Attorney-General. — -Courts will not take judicial notice of the official character of the deputies or assistants of the Attorney-General, p. 694.</p> <p>Criminal Law. — Embezzlement by Justice of the Peace. — Indictment. —Demand by Attorney-General. — Deputy.—-No question is presented by a motion to quash an indictment against a justice of the peace for failure to account for fines received by him because of an allegation therein that the demand was made by a person named who was Deputy Attorney-General, since the question as to whether the person named was Deputy Attorney-General was a question of fact to he established at the trial of the cause, p. 694.</p> <p>Same. — Embezzlement by Justice of the Peace. — Fines.—Indictment.— In an indictment against a justice of the peace for the embezzlement of fines collected by him, it is not necessary to negative the provision of the statute that the amount of fines collected by him did not exceed three times the amount he would be entitled to as mileage in making his report, pp. 695, 696.</p> <p>Appeal and Error. — Joint Assignment. — Instructions.—A joint as- . signment of error in a motion for a new trial based upon the action of the court in giving a certain series of instructions, or refusing certain instructions, cannot prevail, unless all of the instructions given were erroneous, or all of those refused were correct, p. 696.</p> <p>Same.— Misconduct of Jury. — Affidavits.—Record.—No question is . presented on appeal upon an assignment in a motion for a new trial as to the misconduct of a juror, where the affidavits filed in support thereof are not contained in the bill of exceptions, p. 696, 697.</p> <p>Officers. — Deputies.—Attorney-General.—Prosecution of Justice of the Peace for Embezzlement. — Demand by Deputy Attorney-General. — la a prosecution against a justice of the peace for the embezzlement of fines collected by him and demanded by a deputy of the the Attorney-General, defendant cannot question the right of the Attorney-General to have two deputies, since there is nothing in the law creating the office of Attorney-General and prescribing his duties which fixes the number of his deputies, pp. 697, 698.</p> <p>Evidence. — Justices of the Peace. — Embezzlement.—Where in a prosecution against a justice of the peace for the embezzlement of fines collected by him the court limited the investigation of the dockets of the justice given in evidence from the time of last settlement until the date of the demand made by the Attorney-General, and counsel for State read a list of oases from the dockets showing fines assessed and paid in excess of the amount reported by such justice, the jury was warranted in considering such matter as evidence in the absence of any objection made at the time by defendant. pp. 698, 699.</p> <p>Justices of the Peace. — Embezzlement. —Failure to Account for Fines Collected. — Where the Deputy Attorney-General examined the dockets of a justice of the peace and failed to ascertain the correct amount of fines collected because of false entries made by such justice, such justice was as much guilty of embezzlement in failing to pay over the fines in excess of the amounts entered on his docket and demanded by the Deputy Attorney-General as if he has refused to pay over the amounts entered, on the docket and demanded, pp. 699-701.</p> <p>Embezzlement.- — Justices of the 'Peace. — Fines Collected. — Indictment. —Description, of Money. — In an indictment against a justice of the peace for the embezzlement of fines collected by him it was sufficient to describe the sum embezzled as money, simply, without specifying any particular coin, note, bill, or currency, p. 701.</p>

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

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

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

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

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