Volume 156 — Indiana Reports

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

<p>Intoxicating Liquors. — License.—Remonstrance.—-Signatures.—Attorney’in Fact. — Statute. Construed. — Under §9 of the act of March 11, .1895 (Acts Í895, p. 248), providing that it shall be unlawful for the board of county commissioners to grant license to sell intoxicating liquors where a remonstrance thereto, signed by a majority of the-legal voters of the township or city ward has been filed, with the county auditor, such legal voters have no authority, by power of attorney, to authorize an agent to sign their names tó “any remonstrance against the granting of a license to any perso'n he may see fit to remonstrate against,” since the voters are not authorized to confer upon another the power of deciding for them, the matters - committed to.their judgment and discretion by the legislature.</p>

<p>pYom the Hendricks Circuit-Court,</p>

<p>Trusts. — Claim of Truslee.~Collateral Attack. — Where, during the continuance of a- trust, issue is taken, on a current report or claim of a trustee, the adjudication is conclusive, not only in collateral , actions, but in subsequent proceedings in the trust itself, p. 32.</p> <p>Same. — Ex Parte Orders. — Collateral Attach. — Ex parte orders made during the continuance of a trust are not subject to collateral attack, p. S3. . • .</p> <p>Same. — Beneficiaries of Trust. — When in Court.— Beneficiaries of an express trust are in court whenever the trustee is in court, p. 33.</p> <p>Same. — Resignation of Trustee. — Claim for Services. — It is proper for a trustee of an express trust who resigns, to include with his resignation his claim for services as such trustee, p. 33.</p> <p>Pleading. — Form.—Judgment.—Decree.—Under the code of this State, distinctions in form being abolished, judgments at law and decrees in equity are all “judgments.” pp. S3, 34.</p> <p>Practice. — Judgment.—Enforcement by Execution. — A judgment requiring the-payment of money is properly enforced by execution,</p>

<p>Courts. — Records.—Collateral Attach. — Habeas Corpus. — Courts of ' Inferior Jurisdiction. - The records of a court of inferior and limited jurisdiction are entitled to the same respect and are equally invulnerable to collateral attack as those of courts of general jurisdiction, where it is affirmatively shown that the court had jurisdiction of the subject-matter of the action and of the person of the defendant, pp. 38, 39.</p> <p>Venue. — Refusal to Grant Change of. — The refusal of a justice of 'the : peace, or other court, to grant a change of venue, when a sufficient affidavit is filed, does not render the subsequent proceedings in the cause void. p. 39.</p> <p>Criminal Law. — Jeopardy.—The pendency of a criminal action < against, a defendant, for the same offense, in another court, where jeopardy has not attached, is not available to defeat a prosecution in a court of competent jurisdiction, p. 39.</p> <p>Same. — Procuring Affidavit to Be Filed to Defeat Prosecution. — Where 1 one who has committed a crime or misdemeanor procures an affidavit to be filed against himself for the purpose of defeating a prosecution already commenced in good faith, or-anticipated, a judgment so procured in such case affords no protection, p. 39.</p> <p>Same. — Plea of Guilty.. — Withdraioal of Plea. — When a defendant ■ enters a plea of guilty to a criminal charge he cannot afterwards withdraw it without leave of court, pp. 39, 40.</p> <p>Habeas Corpus. — Return.—Criminal Law. — A return to a petition for a writ of habeas corpus showing that the court had jurisdiction of th'e subject-matter of the action and of the person of the defendant, that the affidavit charging defendant with the misdemeanor -. had been properly filed, and that defendant pleaded guilty to the offense described in it, that the evidence was heard, judgment rendered against him and a mittimus issued upon the judgment was sufficient, -and if the matters stated therein were true the court could not inquire into the legality of tlio judgment or process, or discharge the prisoner from custody, p. 40.</p> <p>Habeas Corpus. — Evidence. — Sufficiency. — Appeal and Error. — ■ Where in an appeal from the action of the court in denying a writ of . habeas corpus the bill of exceptions does, not state that it contains all of the evidence, the court, cannot determine the question of the sufficiency of the evidence to sustain the finding, p. 41.</p>

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

<p>New-Trial- as-of Right. — Denial of Motion. — Decedents’ Estates.— The denial of a new trial as of right on the ground that two distinct and separate causes of action were joined in each paragraph . of the complaint, one of which related to real estate, and the other ’ personal property, was erroneous, where the action was brought by : children-of decedent by a former marriage against a surviving-Wife to recover as heirs of decedent certain personal and real property . held by such wife, and it was not alleged that decedent’s debts had been paid and the estate finally settled, or that no létters of administration had been granted, since the only cause of action stated • was the one relating to the real estate.- pp. 45-51. ' • , ■</p> <p>Same.— Denial.of Motion — Waiver.—Whpre judgment plaintiffs filed a motion .to vacate an order of court granting a new trial as of right on the ground alone that defendants by their acts confirmed 'the judgment rendered and were thereby estopped to demand a ■> new trial as of right, it was not error to overrule a motion to vacate • , the order, based upon the theory that the action was not of such a character as authorized a new trial as of right, filed almost a year after the overruling of the former motion, and after amended '' * pleadings had' been filed by plaintiff and the cause set for trial. pp.‘51-53. ’ , , .</p>

<p>Appeal. — '-Decedents' Estates. — Quieting ■ Title. — The widow and children of decedent brought an action to quiet title and.cancel a mortgage executed by the administrator on the lands of decedent. The mortgagee filed a cross-complaint and obtained a judgment foreclosing his mortgage, purchased the .land at sheriffs sale and received a certificate of sale which he sold and transferred to another. In a proceeding to review, the judgment was set aside' ás to the children. The purchaser of the certifícate of sale then filed an amended cross-complaint, making the administrator a party, under which he obtained a decree quieting his title to the undivided one-third of the land, subrogating him'; to the rights of the mortgagee, and directing the administrator to sell .the undivided two-thirds to pay the costs of administration and claims against the estate, including the claim of mortgagee. Held, that the probate jurisdiction of the circuit court was not invoked or exercised'by such .proceeding, and' an appeal from such decree was properly taten under the general statute, pp. 54-57.</p> <p>Decedents’ Estates. — Husband and Wife. — Widow Remarrying.— Children by Former "Marriage. — Judgments.—Decedent’s widow, .under coverture of second marriage, and children brought suit to quiet title and cancel a mortgage executed by the administrator of decedent’s estate. The mortgagee by cross-complaint obtained a judgment foreclosing his mortgage, which was. afterward set aside as to'-the children, but held valid against the widow, she having agreed with cross-complainant to accept a certain portion of the land and withdraw all litigation. Held, that a judgment quieting cross-complainant’s title to the widow’s one-third as against the widow and Children was erroneous as to the children, since the foreclosure judgment was set aside as to the children, and the agreement by the widow concerning her interest in the land was made during her second coverture, without the knowledge or consent of the children by the former marriage, and their contingent right under §2641 Burns 1894 to take the interest of their mother, upon her death during coverture, could not be thus cut off. pp. 57, 58.</p> <p>Decedents’ Estates. — Mortgages. — Lien of Mortgagee. — Where a mortgage'executed by an administrator under an order of court on the lands of decedent for the payment of debts was set aside because of a defect in the proceedings the mortgagee is entitled to a lien on the land for the amount of his loan. p. 58.</p> <p>Mortgages. — Foreclosure.—Purchase of Certificate of Sale by Sheriff.— Section 7948 Burns 1894 prohibiting a sheriff from purchasing any judgment or allowance in any court of which he is an officer is intended to insure the disinterestedness of a sheriff in executing writs that come into his hands, and does not prohibit a sheriff from purchasing a certificate of sale on foreclosure of mortgage, p. 59.</p>

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

<p>Pleading. — Complaint to Foreclose Mortgage. — Reply.—Departure:— ■ "Where,-by a complaint against a wits and her -husband,.it is sought to foreclose a mortgage on real estate, the title to which is affirmed to be in the "wife, and the wife answers that the' notes secured by the mortgage were given for.a debt owing by her husband, and that the real estate mortgaged by her husband is, and was at the time the mortgage was executed; her-separate'property, replies seeking to charge the land with the payment of plaintiff’s debt on the basis that the wife had no title as against the plaintiff constitute a departure, an’d are not sufficient to withstand a demurrer.' pp:61, 62'. "</p> <p>Mortgages'. — Foreclosure.— Evidence. — Husband arid ' Wife. — In an action to foreclose a mortgage executed by husband and wife on the wife’s separate real estate, objections were properly sustained to questions in reference to the extent of the husband's indebtedness at the time he conveyed the property to his wife, his intent to defraud his creditors and the wife’s knowledge of such fraudulent intent, p. 62.</p> <p>Mortgages. — Foreclosure.—Evidence.—Husband and Wife. — Vi here, in an action to foreclose a mortgage, the wife filed a separate answer ' that the notes were given for a'debt owing by the husband, and that ' -1 the real estate described in the mortgage was her separate' property, . owned by her at-and-prior to .the time, of .giving th.e, mortgage, .an objection was properly sustained to a question asked the husband as to whether the wife was in fact the owner of the land in' fee ' simple, or whether she held the title only as trustee for him, and for ■ his convenience.-, pp. 62; 63. • -■'■■■</p> <p>•TRUSTS. — Parol Trust. — An express trust, resting in parol.is as .lawful , as one in writing; but, if one seeks to impress such a trust upon an absolute deed, he must produce evidence in, writing that is binding '■ upon the party sought to be charged, p. 63. ' ‘‘ ‘ '</p>

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

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

<p>Judgments. — Review.—Complaint.—A complaint to review a judgment which does not contain in the body thereof enough of the proceedings in the cause sought to be reviewed that, without resort to the exhibits filed, the court may have before it a full and complete statement of the case, is insufficient on demurrer for want of facts, pp. 77-82.</p> <p>Appeal and Error. — Misjoinder of Causes of Action. — A cause will not be reversed for misjoinder of causes of action, p. 82.</p>

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

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

<p>Municipal CorporationsStreets. — Additional Servitude. — Telephones. — Injunction.—The construction of a trench in a sidewalk three feet from the abutter’s property line as a conduit for telephone cables and wires to be used by the public as a means of ■ communication is not a use of the. street inconsistent with the dedication thereof to the public use, and an action cannot he maintained by an abutting property owner to enjoin the prosecution of such work. pp. 91-97.</p> <p>Same. — Streets.—Construction of Trench for Telephone Conduits.— Municipal Authority. — Complaint.—A complaint by an abutting property owner to enjoin a telephone company from constructing a trench in the sidewalk to be used as a conduit for telephone wires, alleging that the company was unlawfully digging the trench, is not sufficient to negative municipal authority to construct the trench. pp. 97-99.</p>

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

<p>Constitutional Law. — Amendments to Constitution. — Adoption by Electors. — rArticle sixteen of the State Constitution requires that a majority of the electors of the State shall ratify a proposed amendment before it shall become á part of the Constitution, pp. 105-109.</p> <p>Judicial ■ Notice. — Election Returns. — The Supreme Court takes judicial notice of election returns made, to the Secretary of State. p. 110.</p> <p>Constitutional Law.— Amendments to Constitution. — Submission. —'Election.—The fact that an amendment to the State Constitution was submitted to the people by an act of the General Assembly which was not in conformity with a law passed by a previous legislature, providing the manner in which constitutional amendments should be submitted, did not render the election held thereunder a special election, pp. 110-118.</p> <p>Same. — Amendments to Constitution. — Adoption by Electors. — Majority. — An amendment to the State Constitution was submitted to the electors of the State at a general election. The Governor’s proclamation announced that'240,031 votes had been cast for, and 144,073 against the amendment. At the same election 664,094 Votes were'cast for presidential electors and 655,965 votes for Governor. Held, that the proposed amendment was rejected for want of a constitutional majority, pp. 112-124- Jordan J., dissents.</p>

<p>Prom tire White Circuit Court.</p>

<p>Criminal Law. — Variance.—Idem Sonans: — The names Pinney and Penny are idem sonans, and the use oí the' former name .in- the assignment of errors on appeal from a conviction in the latter name does not constituted fatal variance, pp. 168, 169.</p> <p>Same. — indictment.—Duplicity.—False Pretenses. — An’ iriformiation charging that defendant obtained possession of certain property by pretending that he would pay 5125 therefor and gaye .in paytaent money issued by the- Confederate States of America, pretending that the same was good and lawful money of the United States is not bad for duplicity, since it is not charged that the property was obtained by color of false token or writing. pp‘. 169-172.</p>

<p>Master and Servant. — Personal Injury. — Knowledge of Danger. — Assumption of Risk. — Question of Fact. — -Complaint.—-A complaint in an action for the death of plaintiff’s decedent alleged that decedent was employed by defendant in a trench; that decedent was to do a certain part of the excavating, such part being six feet six inches deep, and two feet wide; that by orders of the superintendent the earth taken from the trench was piled near the edge thereof, and no precautions were taken to prevent' the banks from falling in;' that the earth was of such a character as rendered it liable to cave in and endanger the lives of workmen; that while decedent was engaged in his work other laborers were employed in digging bell-holes in the bottom bf the trench, and without any knowledge on the part of decedent, the earth caved in upon decedent and instantly killed him. Held,, that the questions as to decedent’s knowledge of the danger and his assumption of the risk were for the determination of the jury. pp. 17^-179.</p> <p>Same. — Personal Injury. — Complaint.—Duty of Master as to Safety of Servant. — A complaint against a city for the death of an employe while working in a trench, caused by the banks falling in, is not bad because it does not expressly aver that the city owed to the deceased the duty of exercising any degree of care for his safety. p. 179.</p> <p>Master and. Servant. — Vice-Prineipal.—Cities.—The inspector of a city water-works while superintending the construction of a trench acted in the place of the city, and in the construction of such work represented the city to the fullest extent, p. 182.</p> <p>Evidence. —Personal Injury. — Master and Servant. — In an action against a city for the death of an employe while working in a trench, caused by the earth caving in, the evidence of a fellow servant that he informed the superintendent that the trench was dangerous and liable to cave in was properly admitted, p. 188. Instructions. — Words and Phrases. — In an action against a city for the death of an employe while working in a trench, an instruction that in such cases the question was whether a man of ordinary prudence would regard the act as hazardous is- not objectionable as using the word “prudence” instead of the word “intelligence.” pp. ISj, 185.</p>

<p>Schools and School Districts. — Construction of Joint Schoolhov.se. —Appeal.—Judgment.—Where upon petition for the construction of a joint Bchoolhouse the township trustees disagreed and an appeal was taken to the county superintendent who decided in favor of the petitioners, and the trustee who favored the petition purchased a lot without the knowledge or consent of the other trustee, and the county superintendent ordered the building constructed thereon, which last order on appeal to the Supreme Court was reversed, a’ judgment ordering the township trustees to construct'a joint Bchoolhouse in accordance with the original petition, eliminating the portion of the judgment disapproved by the Supreme Court, was proper.</p>

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

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

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

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

<p>Indictment. — Presenting False Claim Against County.— Criminal Law. — An indictment under §2353 Burns 1894 for presenting a false claim against a county, charging that defendant presented the claim to the board of commissioners to secure its allowance, and to procure from the boai’d an order on the county treasury for its payment, is not bad for duplicity, since there is but one substantive act described, the language employed being only descriptive of different phases of a single wrongful act. pp. 225-227.</p> <p>Same.. — Presenting False Claim Against County. — Criminal Law.— An indictment under §2353 Burns 1894 for presenting a false claim against a county is not bad for uncertainty and duplicity because of an allegation therein that the claim so presented was “false and fraudulent.” p. 227.</p> <p>Appeal and Error.. — Affidavits in Conflict with Record. — Criminal Law. — Affidavits negativing arraignment of defendant upon the indictment, and waiver of arraignment, filed in support of a motion for a new trial, before the record was signed by the judge, will not be considered on appeal in contradiction of the record showing arraignment of defendant and plea of not guilty, pp. 227-229.</p> <p>Same. — Record.—Correction.—Where the record misstates a fact, the remedy is by motion in the court below to correct it, and, upon an adverse ruling, a bill of exceptions should be taken embracing the . ruling, and independent error assigned thereon in the Supreme Court, p. 229.</p> <p>Same. — Instructions.—When Evidence Not in Record.- — Where the evidence is not in the record, it will be presumed that instructions refused were refused because they were not applicable to the evidence, if they in any way depend upon the evidence for their interpretation; and instructions given will not be held erroneous if they correctly state the law under any supposable state of facts probable under the issues, p. 230.</p> <p>Instructions. — Presenting False Claim Against County. — Criminal Law. — An instruction in a prosecution for presenting a false claim against the county to the effect that it was not enough to prove that the claim was false, but it must be proved beyond a reasonable doubt that defendant filed the claim with the intention of defrauding the county; but that the intention with which the act charged was done, if done at all, might be inferred from all the circumstances proved in the cause, is not objectionable as advising the jury that the facts and circumstances proved in the case were sufficient to establish fraudulent intent, p, 881,</p>

<p>Appeal and Error. — Moot Question. — 'Dismissal.—Where it is shown -on appeal that the record contains nothing but a moot question, the .appeal will,be dismissed. .. ,</p>

<p>Judges. — Appointment of Special Judge. — The appointment of a special judge is a matter wholly within the discretion of the regular judge, and he is not required to consult or conform'to the wishes of the parties in making his selection, pp. 235, 236.</p> <p>Nuisance. —Intoxicating Liquors. — Beer-Garden.—Private Nuisance. • — Injunction.—A complaint to enjoin the maintenance of a disorderly beer-garden in the vicinity of plaintiff’s residence, charging that great crowds of people congregate at said beer-garden at all hours of the day and night, and all days of the week, and that many of the persons visiting such • resort become' intoxicated there, and while in that condition, on said premises, and while departing therefrom, indulge in loud talking, in profane and obscene language and conduct, and pass immediately in front of plaintiff’s residence, thereby depriving plaintiff and his family of sleep, and keeping them in constant fear of injury, is not bad as showing that plaintiff suffers in common with the general public, since a public nuisance may also be a private nuisance, pp. 236-240.</p> <p>Same. — Defense.— Prescriptive Right. — Intoxicating Liquors.— Injunction. — In an action by a property owner to enjoin the maintenance of a disorderly beer-garden in the vicinity of his residence, an answer that defendant fitted up his' premises as a beer-garden at ' great expense, almost thirteen years before the commencement of the suit; .that -the premises were then outside the city limits; that each year he has obtained a license from the county commissioners to sell intoxicating liquors on the premises, and that1 long after the premises so maintained by defendant had been put in ■ operation the plaintiff purchased the lot mentioned and built his . residence thereon, with full knowledge of the character of the garden and resort so carried on. by defendant, does not state facts sufficient to avoid the complaint, since no prescriptive right to violate the law can' be urged against a private action for injury resulting therefrom. pp.240,-241.</p> <p>Same. — Intoxicating Liquors. — Injunction.;— In an action to enjoin the maintenance of a saloon and beer-garden fitted up, designed, and used for the open violation of the laws of the State, in which vicious and depraved persons of both sexes, in great numbers, were invited and'permitted to congregate by day and by night, on every day of the week, including Sundays, drinking, swearing, fighting, and engaging in lascivious conduct, in the near vicinity of plaintiff’s home, an injunction perpetually enjoining defendant from conducting and maintaining such beer-garden and saloon was properly awarded instead of merely enjoining the use of the saloon and beer-garden in an unlawful manner, pp. 242-244.</p> <p>Nuisance.— Injunction. — Evidence.—Newspaper Comment.— In the trial of an action to enjoin the maintenance of a saloon and beer-garden, evidence of the reputation of the saloon and garden, and of newspaper reports concerning same, was properly admitted, where it was alleged in the complaint that such place had become notorious and the subject of newspaper comment because of the open violation of the1 laws therein, and that such evil reputation had affected the ■ value of the property in the neighborhood, pp. 244, 245.</p> <p>•Intoxicating Liquors. — Nuisance.—Immoral Practices. — License.— A license to sell intoxicating liquors affords the holder no protection from the civil consequences of permitting unlawful and immoral practices on the premises where such intoxicating liquors are sold. pp. 245, 246.'</p>

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

<p>Decedents’ Estates. — Estate* Under Five Hundred Dollars. — Title of Wife in Land of Husband. — A proceeding under §§2575-2578 Bums ' 1894, for the settlement of estates under $500, vests the widow with the entire title of her deceased husband in the' land set off to her, and she thereby becomes the absolute owner thereof, in fee simple, with full power to sell and convey the same without restriction.</p>

<p>CáiMiNAL Law. — Assault with Intent to Commit Rape. — Evidence.— . Defendant, engaged in selling medicines, called at the home of the .prosecuting witness and asked if she would have some of his medicines. TsTpon her refusal he stepped inside the room, telling her she looked hearty, and advanced toward her, she stepping backward until reaching about the middle of the room, when she went out on the, porch by the door through which he entered. Defendant then . ashed her how long since she had had any family, and why she did not have more family, and said “ Have one of mine, won’t you?” The nibst offensive part of the conversation occurred out upon the •open porch, in view of her husband in conversation with a neigh- . bor upon the highway thirty rods distant. When she called her husband, defendant left. Held, that the evidence was insufficient to warrant a conviction of an assault with intent to commit rape.</p>

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

<p>Appeal. — Record.—Instructions.—In order to make instructions a part of the record in a civil case, without a bill of exceptions, they • must be filed in open court, and the record must affirmatively show †-hat they were so'filed, p.%77.</p> <p>Appeal. — Record.—A thing done in open court which must be proved by an order-book entry as a part of the proceedings in a cause, cannot be shown by a recital in the certificate of the clerk, p. 278.</p> <p>Same. — When Instructions Not'Part of Secord.u-Thó'refusal to give instructions requested will not be reviewed on appehl, where they only appear in the transcript as a part of the motion for a new trial. p. 278.</p>

<p>Practice. — Cross-Complaint.—Summons.—When, a cross-complaint is filed no summons in respect thereto is necessary in order to give the court jurisdiction over the person of the plaintiff as cross-defendant and require him to answer, pp. 8S3, 88%.</p> <p>Same. — Dismissal of Complaint Does Not Carry Cross-Complaint. — The dismissal of a complaint by the plaintiff, and a withdrawal of his appearance therein, will not operate, without the consent of the defendant, to carry with it a cross-complaint filed by the latter. p. 284.</p> <p>Judgment. — Vacation.—Insane Person. — Under §396 R. S. 1881, providing that a court “shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any-proceeding on complaint, or motion filed within two years,” a judgment rendered against one who was insane at the time, though not ‘adjudged so, will be set aside, pp. 284-286. ,</p> <p>Appeal. — Record.—Instructions.—The court instructed the jury in writing. At the same term of court at which the verdict of the jury was returned appellant filed motion for new trial. On the first judicial day of the following term'of court this motion was overruled, and the bill of exceptions containing the instructions given and refused was filed, showing that the proper exceptions were reserved. Held, that the instructions were properly in the record. pp. 286, 287.</p> <p>Same. — Record.—Evidence.—'Where the record discloses that on the same day on which a motion for a new trial was denied a bill of exceptions embracing the evidence was filed in open court, and the clerk was ordered to file it as a part of tlie record, and immediately after this entry followed the bill of exceptions, the evidence was properly in the record, although it was not shown that time was given in which to file the bill of exceptions, p. 287.</p> <p>Insane Persons. — Transactions With. — Notice.—One dealing with an insane person, but who had not been adjudged so, will not, as a matter of law, be chargeable with knowledge of the mental infirmity of such person, pp. 288, 289.</p>

<p>■Wills. — Admission to Probate. — Petition.—Practice.—Error cannot .be predicated upon the insufficiency of a petition for the admission of a will to probate, since a petition is not necessary in such case. ’ p. 29Í." ‘</p> <p>Same. — Admission to Probate. — Petition.—Practice.—Where the re- ■ quest,to admit a-will to probate is made in the form of a petition, ,. the. original instrument must be produced to the court, but no copy of the will need be filed with the petition, p. 292.</p> <p>Same. — Name of Beneficiary. — Mistake.—Where testator by the terms ’ of his will gave Certain property to his brother “ John Bradley,” it was. proper to allege and prove that testator had been accustomed ,tq designate and call his brother Barzali B. Bradley “John,” and that Barzali B. was the person intended as the beneficiary in the ' will. p. 293.</p> <p>Appeal and Error. — Record.—Affidavit for Continuance. — An affi- . .davit for a continuance improperly copied in the record among the ., ,other proceedings of the, court cannot be made a part of the bill of exceptions by mere reference to the page and line of the transcript, but the same should be set out in the bill at length, pp. 293, 294.</p> <p>Same. —Bill of Exceptions. — Record.—A bill of exceptions prepared . under the provisions of the act of 1899, held to be invalid, signed by .the judge, who stated in his certificate that it contained all of the evidence given in. the cause, and which after being so signed was ' again filed with the clerk, is sufficient, p. 294-</p> <p>Wills. — Evidence.—Settlement of Estate Before Probate of Will. — In a proceeding to probate a will, evidence that the estate was settled before the will was offered for probate on the supposition that decedent died intestate was properly excluded, p. 294.</p> <p>Appeal and Error. — Evidence.—Trial.— Available error cannot be predicated upon the action of the court in excluding evidence, where the offer to prove was not made until after the objection was sustained, pp. 294, 295.</p> <p>Trial. — Admission of Evidence. — Discretion of Court. — The admission of testimony out of its regular order is very much in the discretion of the judge trying the cause, and, unless it appears that there has been an abuse of such discretion, the Supreme Court will not interfere on appeal, p. 295.</p> <p>Same. — Evidence.—Witnesses.—Impeachment.—A matter wholly immaterial cannot be made the basis of an impeachment, pp. 295,296. Instructions. — Repetitions.— Wills. — Where the court charged the jury in a.proceeding to contest the probate of a will that if the evidence showed that decedent executed the instrument offered for probate and requested the subscribing witnesses to attest its execution, “then such instrument is not a forgery,” and if “youfindthat the decedent signed said instrument, it cannot be a forgery,” such repetition of the conclusion that the will could not be considered a forged will did not amount to reversible error, p.298.</p> <p>Wills. — Execution.—Instructions.—In an action to contest the probate of a will the court properly instructed the jury that “if, prior to'June 10, 1894, the instrument in evidence was prepared ready for signing, and on that day was found in the possession of the decedent, and was by him signed, the presumption would be that the same was prepared by his direction, and by signing it ho made it' his own, whether the instrument be made by ink, carbon, or other substance.” p. 298.</p>

<p>Landlord and Tenant. — Repairs by Landlord. — Constructive Eviction. — Discharge of Tenant from Liability for Rent. — A tenant is not discharged from liability for rent because of a constructive •viction by reason of the repairs of the leased premises, where the tenant elected to retain possession of the leased premises and the wrongful acts complained of by the tenant were committed by third persons, without authority or consent of the landlord, pp. 305-310.</p> <p>Landlord and Tenant. — Rents.—Acceptance of Check. — Accord and Satisfaction. — A tenant refused to pay rent of leased premises because of an alleged' constructive eviction from the premises caused by the landlord making repairs. ’The tenant continued to, occupy . the premises, and sent the landlord a statement of account claiming a balance due by reason of being kept out of possession of the prem- ■ ises, and money expended by.him in making repairs.' The- tenant afterward transmitted a check for rent in accordance with the statement formerly made. The landlord acknowledged the receipt of the check “in part payment of rent” for a certain month, to which the tenant made no reply. Held, that the acceptance of the check did not amount to an accord and satisfaction of the landlord’s claim. pp. 311-31Ó. . . ■</p> <p>Same. — Rents.—Acceptance of Check. — Accord and Satisfaction. — A tenant sent a check on the second day of the month for a month’s rent falling due on the first of the month, which was not'received by the landlord until after he had instituted suit thereon. The landlord acknowledged the receipt of the check, stating that he had brought suit and had given credit for same, less the amount of attorney’s fees and court costs in the suit, to which the tenant re- • plied that if check was accepted it must be in full payment of month’s rent. The landlord afterward cashed the fchecki Held, ■■ that ■ the acceptance of the check, under the circumstances, . amounted to a satisfaction of the debt. pp. 311-315.</p> <p>Special Finding. — Evidentiary Facts. — Surplusage.—While items of evidence and evidentiary facts have no place in a special finding, such matters will not vitiate the finding, but will be treated as sur- . plusage. p. 315. ■ •</p> <p>Attorney’s Fees. — Stipulation in Lease. — Landlord and Tenant. — : A stipulation in a lease, “And the said party of the second part agrees to pay attorney’s fees and other costs pertaining to this -ldase or the enforcement of its provisions,” is unconditional and valid. pp. 315, 316. ' ■</p>

<p>Vendor- and Purchaser-. — Foreclosure of Lien. — Husband and Wife. — Parties.—The interest of a wife in lands conveyed to her husband is subject to the superior equity and lieii of the vendor,' and she need not be made a party in á suit by the vendor to enforce his lien for unpaid purchase money in order to bind her interest in the land! pp. 817-819. •</p> <p>Same. — Foreclosure of Lien. — Judgment•—Collateral Attach.-^ Husband and■ Wife.— The title acquired by the foreclosure of a vendor’s lien cannot be defeated in a subsequent action by the vendor for possession, by vendee’s wife, by proof of facts which might have been available to the .vendee as a defense in the original action, but which'he failed to plead or prove, p. 880.</p>

<p>, Chattel Mortgages. — Foreclosure!— Husband and Wife. — Claim of Ownership by Wife. — Estoppel..—Where :in an action to foreclose a chattel mortgage defendant’s wife filed a cross-complaint claiming ownership of the property, and admitted on cross-examination that she knew- at various times that her husband was making bills of sale and chattel mortgages to defendant, such instruments were admissible to evidence acts of ownership by defendant and in support of.the plea of estoppel in connection with the wife’s admissions, pp. 821, '822.</p> <p>Instructions. — Estoppel.—Evidence.—An instructiori-in an action to ' foreclose a mortgage on 'a horse, of which defendant’s wife claimed to be the owner, to the effect that if a fair preponderance of the evidence showed that she was the owner, and the mortgage was executed without her knowledge or consent, and the mortgagee knew, or by the exercise of reasonable diligence might have known that she was the owner of the horse, the verdict should be in her favor, was not erroneous as casting the burden upon the wife of disproving plaintiff’s plea of estoppel, where other instructions were given in which the jury was explicitly told that the plea of estoppel must be established by a fair preponderance of the evidence, pp. 822,828.</p>

<p>Appeal. — Instructions.—New Trial. — The action, of the trial court in sustaining a motion to instruct the jury to return a verdict for one ' of the parties 'can not he assigned as an independent error. To be - made available on appeal it should have been presented below as a cause for a new trial, pp. 823, 324-</p> <p>Same.— Record. — Instructions.—An instruction not shown by the record to have been filed in the cause, not made part of the record without bill of exceptions by special order, and on the margin of which is-no written exception signed by the trial judge, is not a part of the recprd. pp. 824, 825.</p>

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

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

<p>Injunction. — Against Gas Company fot Failure to Supply Gas.— Evidence. — A gas company entered into a contract with plaintiffs, and others to furnish each of them gas for dwelling purposes so long as a sufficient amount of gas would flow from the company’s well. A few years thereafter the company gave notice that it would cut off the gas, claiming that the flow was no longer sufficient to supply the plaintiffs. Held, that plaintiffs are not entitled to an injunction restraining the company from cutting off the gas in the absence of a showing that plaintiffs had no other means of heating or lighting their dwellings.</p>

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

<p>Abatement. — Affidavit and Information. — Perjury.—A plea in abatement to a prosecution for perjury by affidavit and information, to be sufficient'to withstand a demurrer, where an amended affidavit and information' has been filed, must state facts showing that none of the conditions .which authorized suph prosecution existed either on the date of the original or of the amended affidavit and information. pp. 344- 345.</p> <p>Perjury. — Affidavit and Information. — An affidavit and information charging perjury must show the materiality of the matters testified to, and claimed to be false, by general averment or by.an allegation of the particular facts, p. 846. , . . ,</p> <p>Same. — Testimony Need Not Concern the Principal Issue.- — If a witness, with an intention to deceive the jury or court 'trying a cause,. swear so as to make an impression on their minds that a fact material in the cause is different from what it really is, and from what he knows it to he, he is guilty of perjury, p. SJfl.</p> <p>Criminal Law. — Perjury.—Motion to Amend Affidavit and Information. — Waiver.—In a prosecution for perjury the State does not waive its exception to an order of the court quashing an affidavit and information by asking leave to amend subsequent to the ruling of the court, pp. 3j7, 31f8.</p>

<p>Appeal and Error. — Assignment of Error. — Motion to Make Pleading More Specific. — An assignment on appeal that “the court erred in overruling the appellant’s motion to require the appellee to make her amended complaint more specific ” is sufficient to bring before the court for review a motion separately and severally addressed to the fiist and second paragraphs of the complaint, pp. 349-351.</p> <p>Same. — Motion to Make Complaint More Specific.— Error may be predicated upon the action of the court in overruling a motion to make a complaint more specific, p. 351.</p> <p>Negligence. — Complaint.—Motion to Make More Specific. —In an action for damages for personal injuries caused by an explosion of natural gas by reason of the alleged negligence of defendant, the complaint charged that “defendant company had carelessly, negligently and knowingly suffered, permitted and allowed its said high pressure line * * * to become defective, insufficient, and out of repair so that natural gas flowing therein escaped.” Held, that the action of the court in overruling a motion to require plaintiff to' make the charge of negligence more specific was error for which a judgment in favor of plaintiff should be reversed, pp. 351-353.</p> <p>Appeal and Error. — Bill of Exceptions. — Exhibits.—Copy.—Where a map introduced in evidence and referred to in the trial of a cause was lost, the trial court had the power to require a copy of such map to be made and have same inserted in the bill of exceptions. pp. 353-355.</p>

<p>Appeal and Error. — -Elections.—Contested Ballots. — Bill of Exceptions. — In an appeal from an action to contest an election the original ballots should be incorporated in the bill of exceptions containing the evidence instead of copies thereof, p. 357.</p> <p>Same. — Bill of Exceptions. — Evidence.—The bill oí exceptions containing the evidence is properly in the record where it is disclosed by the record that it contains all of the evidence, that it was presented to the judge for signature within the time granted by the law or by the court, and that the same was signed by the judge and , filed with the clerk, pp. 357, 35S.</p> <p>Same. — Bill of Exceptions. — Original Bill. — Although appellant filed a written precipe with the clerk, directing the making up oí the transcript, which amounted to a request for á¡ copy of the bill of exceptions, it does not followthat an oral request'was not subsequently made to insert the original, and where the original bill is in the transcript it will be presumed, in the absence of anything to the contrary, that the clerk incorporated the same at the subsequent oral request of the appellant, p. 358.</p> <p>Same. — Bill of Exceptions. — Signature of Judge. — In the authentication of the bill of exceptions it is not necessary that the judge certify that it contains all the objections, rulings and exceptions reserved during the trial, since the act of affixing his signature amounts to an affirmation of all of the things enjoined by law. p. 859.</p> <p>Elections.1 — Ballots.—Distinguishing Marks. — A ballot containing no mark or character upon it except a slight impression of the regular stamp immediately above the party emblem in the large square inclosing the emblem, and immediately below the emblem a heavy daub, irregular in outline and four times as large as the face of the :stamp, was properly rejected as containing a distinguishing mark. p. 360.</p> <p>Same. — Protested Ballots. — Under the provisions of-§6248 Burns 1894, relative -to the canvass of votes, a ballot which has been regularly . cast by -an elector that exhibits any of the elements of discredit, and objection is made by a member of the board to its being counted, whether it is or is not counted, it is a protested ballot and should be preserved for review, pp. 360-363.</p> <p>Same. — -Ballots.—Distinguishing Marks. — A ballot containing a clean and distinct impression of the regular stamp in the large square containing the party emblem, and entirely free from any mark, spot or character, except small smears of the same color as the impression of the stamp near the bottom of the ballot, indicating the merest touching and movement of the stamp from left to right, was fair and should have been counted, as such mark was not a distinguishing mark within the meaning of the law. pp. 363, 364.</p>

<p>Municipal Corporations. — Validity of Ordinance Regulating the Manner or Running Cars in Railroad Yards. — Under Subd. 42, §3106 E. S. 1881, a city is empowered to regulate by ordinance the manner of handling, operating or running locomotive engines and cars in and through the yards of a railroad company which are situated within such city. pp. 366-371.</p> <p>Railroads. — Failure to Comply with City Ordinance. — Negligence.— The failure of a railroad company to discharge its duty in regard to the maintenance of a, watchman on the rear of a backing train, and the ringing of the engine bell, as provided by a city ordinance, is negligence per se. p. 372. •</p> <p>Same. —Duty of Employes to Look and Listen for Approaching Trains Not Same as Others. — The rule which exacts of a traveler or other person about to cross a railroad track the’caution to look in both directions, and also to listen, in order to ascertain if a train is approaching,' is not applied in all its strictness to workmen engaged in the line of their duty, and the failure of an employe, while in the discharge of his duties, to • look and. listen for approaching trains may or may not be negligence under the particular circumstances 'of- the case. p. 373.</p> <p>Same. — Violation of City Ordinance. — Employe’s Assumption of Risk. —One who accepts employment with a railroad company does not accept the risk or hazard which might result from a non-observance of a city ordinance providing as to the manner' of running cars within the city limits, p. 374-</p>

<p>Appeal and Error.— Bill of Exceptions. — Record.—The date on which the bill of exceptions was signed by the judge, nothing in the bill showing the contrary, must be taken as the date of its presentation, and when such bill was not signed until after the expiration of the time given for presenting the same, the evidence contained therein is not properly in the record, p. S76.</p> <p>Instructions. — When Evidence Not in Record,. — Wills.—Available error cannot be predicated upon the action of the court in instructing the jury in an action to contest a will that the will could'nbt'be set aside for undue influence unless it “was exercised upon the mind of testator by the devisees or one of them,” where the evidence is not in the record, since it pannot be assumed that the evidence required a broader instruction than the court gave. pp. 376, 377.</p> <p>Instructions. — When Evidence Not in Record.— Wills. — Where' the-evidence is not in the'record it must be presumed that the court in chargin'g the jury as to the formal execution of a will conditioned ■ the execution upon the existence of facts with reference to which there was evidence, p. 377.</p> <p>Same. — Wills.— Contest. — Burden of Proof. — In the trial of an action to contest a will on account of undue influence in its execution, an instruction that “.the law presumes .in favor of-honesty and fair, dealing, and whoever asserts the. contrary must prove it to .your satisfaction by a preponderance of the evidence ” did not require plaintiffs to prove undue influence “beyond a reasonable doubt,” but required Of plaintiffs only a preponderance of the evidence, p.378.</p>

<p>Appeal and -ERROR.-^-'Jieserwd! Questions of Law. — Practice.—The rule that alleged errors occurring during the progress of the trial cannot he considered on appeal unless the same are presented'to the trial' court as a ground for a new trial applies to- questions of law-reserved upon the trial-under §642 Burns 1894.</p>

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

<p>Appeal— Proceedings to Establish Drain. — Collateral MoMot).. — Bill of Exceptions. —In proceedings to establish a drain, under the circuit court act (§§4273-4281 -Horner 1897), a motion to strike out parts of the commissioners’ report, being a collateral motion, can only be made part of the record by a bill of exceptions, p. S8S.</p> <p>Same. — Proceedings to Establish a Brain. — Neiii Trial. — Evidence Not in Record. — In proceedings to establish a drain,' a motion for a new trial on the ground that the finding of the court was contrary to law, in that a drain was established which was not described in the petition, will not be considered on appeal, where the evidence is not in the record, .p. 3S3. . .</p> <p>'Drains.- — Reduction of Assessments by Part of Remonstrants. — Joint Motion to Pax Costs. — Where three of four remonstrants to a petition for a drain, under §§1273-4281 Horner 1897, succeeded in reducing their assessments more than ten per cent., but the fourth was defeated on all the issues^ a joint motion to tax all the costs of the trial against the petitioners was properly denied, p. 3SJ¡..</p>

<p>Drains. — Petition.—Attached for First Time on Appeal. — A drainage petition, will not be held insufficient when attacked for the first time on appeal, unless there is a total absence of averment of some fact absolutely necessary to the support of the proceeding, p. S85.</p> <p>Same. — Petition.—Sufficiency.-—A petition for a drain will not be held bad on ari appeal from a judgment establishing the drain because of the failure of the petitioner to allege that he was’ the owner of land liable to be affected by or assessed for the expenses of construction of the ditch, pp. 386, 3S7.</p>

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

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

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

<p>From- the Owen Circuit Court.</p>

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

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

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

<p>Appeal and Error. — Joint Exception. — Where an exception to' the ruling of the'cotirt on demurrer to complaint was made jointly by defepdants, available error cannot be predicated thereon by one of: the defendants on appeal, p. /,21.</p> <p>Same. — Complaint.—Questioned for First Time on Appeal —The total absence from the complaint of an averment of a fact essential to the existence of the cause of action, or the averment of a fact that absolutely destroys plaintiff’s right of recovery, may be raised for the first time on appeal by an independent assignment of error, under §346 Burns 1894,.but more uncertainty, or inadequacy of averment, will be deemed to have been waived by a defendant who proceeds with'the trial to final judgment without objection, p. J,21.</p> <p>Same. — Joint Assignment. — Where an assignment of error challenges the complaint as an entirety, and any paragraph thereof is sufficient, the assignment must fail. pp.</p> <p>Municipal Corporations.— Streets.— Personal Injuries— The fact ■ that a street was so obstructed by the contractor in the construction of a sewer as to be inconsistent with public use will not relieve the city .from liability for a personal injury, when it is shown that the city had notice, or might.have had notice by the exercise of proper oversight, that its licensee had acted in a negligent manner and left its streets in an unsafe and dangerous condition, p.</p> <p>Appeal .and Error. — Verdict. —Answers to Interrogatories. —All reasonable presumptions must be indulged against the special answers and in support of the general verdict, and if the general verdict, thus aided, is not in irreconcilable conflict with the answers, it must stand, p, Jj%3.</p> <p>Contributory Negligence. — Personal Injury of Child. — A. motion for judgment for defendant on answers to interrogatories, in an action'for personal injuries by a child six-and a half years of age on the ground that the answers showed that plaintiff was guilty of contributory negligence was properly overruled, where it was shown that the child was playing on a sand pile in the street and fell into a sewer through a manhole'near by, which had been left uncovered continuously for two weeks with the knowledge of defendants, and that the cliild.did not have intelligence enough to know the danger ,of the open manhole, pp. 423, 4®4-</p> <p>Examination of Person. — Personal Injuries. — Practice.— In an ac-f ion'f or a personal inj ury the court has power to order an examination ' 'of the plaintiff as to the injuries complained of, upon a proper ap- ■ plication therefor by defendant before entering upon the trial, such .motion being addressed to the sound discretion of the court, and the exei'cise of such discretion is reviewable on appeal, and correctable in cases of abuse of discretion. Pennsylvania Co. v. Newmeyer, 139 Ind. 401, overruled, pp. 4%4-432. .</p>

<p>Master and .Servant.-^-Personal -Injury. — Assumption .of Bislc. — ■ . Where plaintiff was employed hy a stone .company to brace and. chock stones placed on cars by the company so that they •would ride Steadily while in process of transportation, he cannot recover for an .injury from at stone falling upon him which was insufficiently braced, caused by other employes jarring the car in loading stone,, since such risk was assumed by him.</p>

<p>Criminal Law. — Conspiracy. — Assault and Battery. — Intent. '■— Drunkenness. — Evidence.—In a prosecution for an assault and battery with intent.to commit murder, and for entering, into a conspiracy with intent to commit murder, the intoxication of defendant is admissible in evidence for the consideration of the jury in determining whether defendant actually entertained the specific intent essential to the crime charged.</p>

<p>Judgments. — Former Adjudication. — County Treasurer. — Mistake in Final Settlement. — Appeal from Board of Commissioners.— Action on Bond. — A county treasurer claimed that he was twice charged with §12,000 in his annual settlement by reason of a change in the system of bookkeeping, and filed an application with the board of commissioners to correct the alleged mistake, which was denied, and an appeal was taken to the circuit court. Pending the appeal, an action was brought by the prosecuting attorney on the relation of the county auditor to recover the amount, in which the defendant filed an answer alleging the mistake in bookkeeping. Such proceedings were had that a judgment was rendered against defendant for the amount claimed, with interest and penalty, and such judgment was affirmed on appeal to the Supreme Court. Thereafter the appeal from the board of county commissioners was tried, involving the same issue as in the action on the official bond, and it was found that a double charge was made against defendant and that he was entitled to have his settlement corrected accordingly. Held, that the judgment on the official bond was an adjudication which constituted a bar to the subsequent action, pp. 450-458.</p> <p>Counties. •— County Commissioners. — Refusal to Correct County Treasurer’s Settlement. — Appeal.—An. appeal will not lie to the circuit court from the action of the board of commissioners in denying the application of a county treasurer for a correction of his annual settlement., pp. 458, 459.</p> <p>Courts. — Jurisdiction. — Circuit Courts. — Appeal from Board of Commissioners. — Where it affirmatively appears that the circuit court has no jurisdiction of a cause appealed from the board of county commissioners, the question of jurisdiction may be raised at any stage of the proceedings, p. 459.</p>

<p>Master and Servant. — Personal Injury. — Incompetent Fellow Servant.— Negligence. — An employer who negligently-or knowingly, employs or retains in his, service an incompetent servant is liable for injuries to a fellow servant sustained through the incompetency of -the -servant so employed or retained, unless the injured servant assumed the risk incident to such inoompetency. p¡ 462.</p> <p>Same. — Personal Injury. — Fellow Servant. — ■Complaint.—A complaint by a servant against the master for a personal injury caused by a fellow servant, alleging that the injury resulted to plaintiff because defendant did not exercise reasonable arid proper care in selecting a competent servant, and in retáining an incoinpetent one' after his inoompetency became known, is sufficient against demurrer. pp. 462,463. _ , ,</p> <p>Same. — Incompetent Fellow Servant. — Assumption of Rislc. — Complaint. — Where a complaint in an action against the 'master for a personal injury caused by the alleged incompetency of 'a fellow servant averred that the incompetency of the fellow servant.was unknown to plaintiff, it cannot be said that plaintiff assumed the risk incident to such incompetency, p. 463.</p> <p>Same. — Incompetent Fellow Servant. — Assumption of Risli. — The wrongful employment of incompetent fellow servants is not one of the common and obvious hazards of the business assumed by the other servants, p. 463.</p>

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

<p>Intoxicating Liquors. — Husband and Wife. — Unlawful Sales. — Loss of Support. — Damages.—Where a saloon-keeper sold intoxicating liquors to a person who was at the time intoxicated, in consequence of which sale the latter became so crazed that he committed murder, and was sent to the penitentiary, the wife of such intoxicated person may maintain an action against the saloon-keeper, under §§15 and SO of the act of 1875 (Acts 1875 s. s., p. 55), for loss of means of support.</p>

<p>Drains. — Remonstrance.—Withdrawal of Signature. — Where a remonstrance to a petition for a proposed drain, under the drainage law of 1885 and amendments thereto (§5622 et seq. Burns 1894), was properly filed within ten days, as provided by §5624 of said act, remonstrants may not subsequently withdraw their names.</p>

<p>Appeal and Error. — Bill of Exceptions. — A bill of exceptions containing the instructions is properly in the record where the motion for a new trial was overruled April 7,1899, and. ninety days time given to file bill of exceptions,' the bill filed May 29, 1899,' copied in the transcript with the statement over the signature of the trial judge that it was tendered to and signed by him on April 7, 1899. p. 479.</p> <p>Municipal Corporations. — Streets.—B.egulation,of Vehicles. — Traction-Engines. — A municipal corporation has no power to pass an ordinance prohibiting the running of traction-engines upon the streets and alleys, and such an ordinance is void. pp. 48O-486.</p>

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

<p>Frauds, Statute of. — Vendor and Purchaser. — Oral Modification of Contract. — Plaintiffs entered into a written contract to purchase certain land of defendant, payment to be made from the sale of town lots.into which the land should be divided, the defendant to execute deeds to purchasers and credit plaintiffs with the amount of purchase price received, and when such credits equaled the full amount of the purchase money of the land, then defendant agreed to convey the part remaining unsold to plaintiffs. Plaintiffs took possession of the land, platted same into lots, and, pursuant to the contract, sold a number of the lots, when defendant orally agreed to accept farm lands taken by plaintiffs in exchange for lots in part payment of purchase money. Meld, that the verbal agreement as to accepting conveyances of other lands falls within the statute of frauds, and is unenforceable, pp. 499-506.</p> <p>Vendor and Purchaser. — Contracts.—Part Performance. — Statute of Frauds. — Plaintiffs entered into a written agreement to purchase certain land, payment to be made from the sale of lots into which the land was to be divided. Plaintiffs took possession of the land, platted same into lots and sold part of the lots, in accordance with the terms of the contract. Thereafter defendant orally agreed to accept conveyances of other lands taken by plaintiffs in exchange for the town lots in part payment of purchase money. Meld, that the agreement is not enforceable by reason of part performance. p. 507.</p>

<p>Appeal and Error. — Joint Assignment. — No question is presented on appeal by a joint assignment of error, where all of the parties joining in the assignment' are not affectedby- the error complained of. p. 509. . > . : •</p> <p>Same. — Demurrer.—Record.—A ruling on. a demurrer to a plea in abatement will not be considered on appeal, where the demurrer is not in the record, p. 509.</p> <p>Same. — Assignment ofRrrors. — Motion for New Trial.— Specifications that the court erred in its conclusions of law and in. overruling a motion for a new trial cannot be considered, .on appeal, where the assignment of errors is joint, and the exceptions to the conclusions pf law and motion for a new trial were several only. p. 509.</p> <p>Same. — Complaint.—Motion to Make More Specific. — An- objection that charges in a complaint against an administrator are indefinite and uncertain cannot be presented for the first time on appeal, but should be presented by’a motion to make the complaint- more specific, p. 510. ' ' "</p> <p>Executors and Administrators.— Misfeasance. — Action on Bond.— An action on the bond of an administratpr for misfeasances and derelictions may be prosecuted by an administrator, de bonis non. p. 510. '■</p> <p>Practice. — Venire de Novó. — The office of a m'otion for a venire de novo is to test the sufficiency of the special finding -to sustain 'the conclusions of law, or-of the special, verdict to sustain a judgment, and not to determine whether the findings are within the issues. p. 510.</p>

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

<p>Corporations. — Per Cent, of Stock Subscriptions to be Paid. — Liability of Stockholders. — An agreement between a corporation and its stockholders that only a certain per cent, of the stock subscribed by each stockholder shall be paid in is binding on the corporation, and the corporation can collect the per cent, specified, and no more. p. 518.</p> <p>Corporations. — Per Cent, of Stock Subscriptions to be Paid. — Insolvency of Corporation. — Liability of Stockholders. — Where the articles of a corporation duly organized, under the manufacturing and mining acts (§§3851-3863 Horner 1897), expressly provide that only fifteen per cent, of each share of stock subscribed shall be paid in by stockholders, and that this provision of the articles cannot be amended or modified except by unanimous consent of all the stockholders, the unpaid portion of the stock is not an asset for the benefit of corporation creditors on its becoming insolvent, p. 620.</p>

<p>Wills. — Contest.—Election.—Estoppel.—Devisees to whom had been devised certain real estate in severalty,.and who had, immediately after the will was probated,-with full knowledge of the mental condition of the testatrix’at'the time the will was executed, and of the manner in which it was executed, taken possession of such real estate, and remained in possession continuously thereafter, will be held to have elected to take under the will and to be estopped from assailing the validity of the will on the ground that the'testatrix was of unsound mind, or that the will was unduly executed. pp. 521, 522.</p> <p>Practice. — Pleading.—Answers.—Demurrers.—In a will contest- the defendants pleaded in separate paragraphs two affirmative defenses. Demurrers to thése answers for want of facts having been overruled, judgment was entered on plaintiffs refusal to reply. Held, that the plaintiffs, by the filing1 of the demurrers and by the refusal to reply, admitted the truth of each paragraph, and that if one of the answers stated a good defense, it was unnecessary for the court on appeal to determine the sufficiency of the other, pp. 521-528.</p>

<p>Practice. — General Denial. — Admissibility of Evidence. — By §377 .Horner 1897, providing that under a general denial of an allegation “ no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove,” 'it is not meant that all evidence must be directly negative in character, but facts independent of those averred in the complaint, of a nature affirmative, but which have a negative effect upon the issues, are admissible, pp. 525, 526.</p> <p>Same. — General Denial. — Admissibility of Evidence. — Banks and Banking. —Plaintiff, who was cashier of a bánk, deposited a certain sum of his own money with a correspondent bank, and had the same placed to the credit of his own bank. He subsequently brought suit against the bank of which he had been, cashier to recover the money so deposited. Held, that under a general denial the defendant might prove that previous to making deposit of money sued for the plaintiff drew his personal check on the correspondent bank with which he had no personal account, in payment of notes held against him by such bank, and that the correspondent bank honored the check and charged same to defendant bank, and that no part of said money had ever been repaid by plaintiff, pp. 526-528.</p>

<p>Mandamus. — To Require■ Townsliip Trustee to Provide School. — An application for a writ of mandate to require a township trustee to furnish, within the school district, a suitable schoolhouse and a teacher for the proper education of children of school age, who were inmates of an orphanage, was properly denied, since the conduct of the, trustee in refusing to'provide the facilities for a school at, the particular place demanded was an administrative act, and the proper remedy was ari appeal to the county superintendent of schools. ' ’’ •</p>

<p>Telegraph Companies. — Failure to Deliver Message After Transmission to Another State. — Penalty.—Where a telegraph company receives a message in this State for transmission over its line's to a place in another state, the failure of the company to deliver the message after it was received in the other state, to the person to whom it was directed, is not a failure of duty for which the penalty prescribed by §§4176, 4176a Horner 1897 may be recovered.</p>

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

<p>Evidence. — Contest of Wills. — Opinion Evidence. — The testimony of a witness, in an action to contest a will on account of the unsoundness of mind of testator, as to the capacity of testator to do business is incompetent, pp. 536, 537.</p> <p>Same. — Privileged Communications. — Physician and Patient. — Wills. —The action of an administrator in the trial of an action to contest a will in failing to call the physician who attended testator, and refusing to permit him to testify in behalf of plaintiff, cannot be commented upon by attorneys for plaintiff, nor considered by the jury to their determination of the case. pp. 537-540,</p>

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

<p>Highways. — Establishment.—Assessment of Damages. — Presumption. —Where, as provided by §1 of the act of March 7, 1895, a jury has been appointed by the board of county commissioners to fix damages sustained by a landowner for land taken in the construction of a. highway, and by such jury damages were awarded, it will be presumed, in a cdllateral .proceeding by the landowner against the board of commissioners to recover such damages, that the lándowner filed a written application with the viewers as provided by the statute, pp. 552-55k-</p> <p>Mandamus. — To Compel County to Pay Damages Assessed in Establishment of Highway. — In an action by a landowner to mandate the board of commissioners of a county to compel the payment of damages-assessed, in proceedings under §1 of the act of March 7, 1895, for the establishment of a highway, it is necessary to allege in the complaint, and prove, and, in case of a special finding, to find that there is sufficient money in the county treasury for the payment of the claim sought to be enforced, pp. 55k, 555.</p> <p>Appeal. — -Cleric's Certificate Must Be Authenticated by Seal. — The certificate of the clerk of a circuit court cannot be considered as authentic, for the purpose of making the evidence a part of the record on appeal, where it is not impressed with the court’s seal. pp. 655, 556.</p>

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

<p>Pleading. — Joint Demurrer. — A demurrer to second, third, and fourth paragraphs of reply on the ground that neither of the paragraphs states ’facts sufficient to avoid the answer is joint, and not several, and if either paragraph was good the demurrer was properly overruled, pp. 564, 565.</p> <p>Appeal and Error. — Joint Assignment. — Conclusions of Law. — An assignment of error challenging all of the conclusions of law jointly must fail if any one of the conclusions is correct, p. 565.</p> <p>Same. — Assignment of Error. — Conclusions of Law. — The correctness of conclusions of law must be questioned by proper exceptions to each conclusion and assigning error thereon, not by motion to restate the conclusions, p. 565.</p> <p>Same.— Special Finding.— Conclusions of Lato.— Exceptions.— Mo-‘ tipns. — Whdlre there is.a special finding and conclusions of- law thereon, and the judgment is rendered in conformity with the conclusions of law, an exception to each conclusion of law, and not a motion to modify the judgment, is the remedy, pp. 565, 566.</p> <p>Same. — Record. — Original Bill of Exceptions. — Although nothing except the evidence and questions concerning the competency of witnesses and the admissibility of evidence can be brought into the • record by an original bill of exceptions, when the original bill contains matters which cannot be brought into the record in that manner, the matters properly in the record will be considered and the improper disregarded, p. 566.</p> <p>Mortgages. — Husband and Wife. — Lands Descending from Former Husband. — Judgments.—Former Adjudication. — Collateral Attack. —A decree of foreclosure, of a mortgage executed by a woman arid her second husband on land which descended from her first husband (there being children of such first marriage living), in violation of §2341 Burris 1894, is conclusive, and cannot be attacked in a collateral- proceeding. McCullough v. Davis, 108 Ind. 292, overruled. ■ pp. 566, 575.</p> <p>Judgments. — Conclusions.—Collateral Attack. — Pleading.—The conclusiveness óf a judgment on collateral attack recovered in a case where the'court had jurisdiction of the parties and the subject-matter of the action' is riot affected by the insufficiency of the pleading upon which it was rendered, p. 575.</p>

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

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

<p>Drains. — Construction.—Appeal.—Where a drain had been ordered' established, under the act of March 7, 1891 (§5690 et seq. Burns 1894), an appeal will not lie from an order of the board of county-commissioners refusing to appoint a commissioner to complete such drain, where the board orders the engineer to report on the condition of the work. ■ •</p>

<p>Municipal Corporations. — Officers. — Salaries. — City Marshal. — Mandamus. — Under the provision of §3462 et seq. Burns 1894, the salary to be allowed a city marshal rests entirely in the discretion of the common council of the city, and-when the council fixes such salary they cannot be compelled, by writ of mandate to change or, increase it.</p>

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

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

<p>Judgments.— Conclusiveness.— Parties.— Decedents’ Estates. — Sales of Beal Estate. — Where a wife took possession .of lands under the will of her deceased husband, and at her death the lands were sold by her administrator for the payment of her debts, parties to such proceeding are concluded by the judgment and order therein . from asserting that. she did not own the land in fee simple, although they were made parties to the proceeding as heirs of their mother and claimed afterward as heirs of their father. Goldsberry v. Gentry, 92 Ind. 193, overruled.' pp. 607-620.</p> <p>Decedents’ Estates. — Executors and, Administrators. — Sales of Beal Estate. — Limitation of Actions. — A purchaser of real estate at administrator’s sale is protected as against parties to the proceeding, after the expiration of five years from the confirmation of the sale, by cl. 4, §294 Burns 1894, although the real estate was so erroneously described as to make the sale voidable or void. pp. 620-628.</p> <p>Mortgages. — Foreclosure. ~r Parties. — Conveyance of Mortgaged Property. — It is indispensably necessary in the foreclosure of a mortgage upon real estate that the person to whom the mortgaged property has been conveyed be made a party, and if he is not made a party, the foreclosure is void as to him. pp. 628, 629.</p> <p>Deeds. — Description.—Tax Deeds. — A description in a tax deed, “A part of the west one-half of the southeast quarter of section twenty-one, township twenty-five north, three west, containing four acres,” is so defective that it conveys no title, pp. 612, 629.</p> <p>Same. — Tax Deed. — Must Be Attested by County Treasurer. — A tax deed which is not attested by the county treasurer, as required by §8624 Burns 1894, is not sufficient to support an action to quiet title, p. 629.</p> <p>Appeal and Error. — Rehearing.—Waiver.—Questions not presented at the original hearing are waived, and the Supreme Court is precluded from» considering the same on petition for a rehearing. pp. 629-631. .</p>

<p>Indictment.-- Presenting False Claim Against County. — Criminal Law. —An indictment, under §2353 Burns 1894, for certifying as correct and presenting a false claim against the county is not bad because it was alleged that defendant made out and presented the claim to the board of commissioners for the purpose of procuring an order for its payment out of the county treasury, when under the law boards of commissioners are only authorized to allow claims against the county, and not to issue orders for payment out of the county treasury, since no order for the payment of the claim could have been issued until the same had been allowed by the board, pp. 638-G34-</p> <p>Same. — Duplicity.—Presenting False Claim Against County. — Criminal Law. — An indictment, under §2353 Burns 1894, for presenting a false claim against a county is not bad for duplicity because of. an allegation therein that defendant “presented a false and fraudulent claim,” since the indictment only charges defendant with present-’ ing one claim, and that it was false and fraudulent, pp. 634, 635.</p> <p>Same. — Presenting False Claim. — Under §1820 Burns 1894, it is not necessary in an indictment for presenting a false claim against a county to set out the claim, p. 635. . ,</p> <p>Appeal and Error. — Record.—Motion for New Trial. — Bill of Exceptions. — A motion for a new trial and the ruling of the court thereon being a part of the record without a bill of exceptions, the same cannot be brought into the record by a bill of exceptions. pp. 635, 636.</p> <p>Same. — Record.—Defect.—Waiver.—A defect in the record is not waived by failure of appellee’s attorney to call attention to same in brief, pp. 636-638.</p>

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

<p>Counties. — County Treasurer. — Loans to County. — A contract entered into by the county treasurer and the board of county commissioners, whereby the former was authorized to furnish the county all money for the payment of orders, bonds, and interest, when presented to such treasurer for payment, for which he should receive six per cent, interest per annum, is in violation of §6548 Bums 1894, and void as against public policy, pp. 648-654.</p> <p>Same. — County Treasurer. — Loans to County. — In an action against a county treasurer for money alleged to be due the county it was shown that he retained $5,086.86 of the public funds which he claimed was due him for interest on loans made to the county. No receipts were filed by him with the county auditor for loans received, as required by §7991 Burns 1894, his bank balances were constantly less than the balances shown to be in his hands by his own books, and he was unable to explain from what source other than the public funds he obtained the large amounts alleged to have been loaned by him to the county. Held, that the evidence showed that the loans were made from the public funds, pp. 654, 655.</p>

<p>Drains. — Remonstrance.—AppealBond.—An appeal to the circuit court from the action of the board of commissioners in overruling a motion to strike out the report of the viewers appointed to establish the line of a proposed ditch was properly dismissed where no bond was filed with the motion or remonstrance, as required by §5665 Burns 1894.</p>

<p>Trusts. — Creation.—Evidence.—Husband and Wife. — It was agreed between a husband and wife that certain land owned by the wife should become the property of her brothers by will or deed. Some time before her death she executed a will disposing of her property, which she afterward destroyed, and, after a private conversation with her husband, stated that it was all settled, that she wanted her brothers to have five or six hundred dollars each, that she had left it entirely with her husband, who had promised to do right with her brpthers, and that she believed he would d'o so. Held, that no trust was created in the land in favor of the brothers, pp. 659, 660. Same. — Husband and Wife. — Contracts.—Consideration.—Ahusband - and wife agreed that certain land owned by the wife should become the property of her brothers; but the proposed trust in favor of the brothers was never created. After the death of the wife, the husband, who was her sole héir, called the brothers together for the purpose of executing to them a deed to the land, but it was agreed in writing that the husband should continue to hold the land and sell it and divide the proceeds among the brothers. Held, that since no trust was created in the land in favor of the brothers, the agreement was, in effect, to hold his own land in trust for them, and, the agreement being without consideration, it was unenforceable. pp. 660, 661.</p> <p>Appeal and Error. — Reversal of Judgment on Insufficiency of Findings.— Pleadings.- — Where a judgment was reversed because the findings did not sustain the complaint, it is immaterial what answers, beyond the general denial, were filed, p. 661.</p>

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

<p>Specific. ■ Performance. — Agreement to Execute Lease. — Where plaintiff expended a large sum of money in equipping a mill on the faith of an oral agreement entered into with defendant to execute ■ a twenty-five year lease for water power to operate the mill,-and began the operation of the mill, paid the quarterly instalments of rent and operated the mill for four years, plaintiff is entitled to be placed in such position that it can enforce its rights the same as if said lease had been executed by defendant at the proper time. pp. 666-673.</p> <p>Same. — Agreement to Execute Leased — Statute of Frauds. — Clause 4 of §6629 Burns 1894, providing that contracts for the sale bf lands or any interest therein cannot be enforced unless the contract or agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged, does not abridge the power of the court to enforce the performance of an oral agreement to execute a twenty-five year lease of a water right to operate a mill, where plaintiff expended a large sum of money in constructing the mill on the faith of the oral agreement, operated the mill for four years, and paid the quarterly instalments of rent as per the agreement, pp. 673, 674-</p> <p>Same. — Agreement to Execute Lease. — Statute of Frauds. — One Year Clause. — Clause 5 of §6629 Burns 1894, providing that no action shall be brought upon any agreement not to be performed within ■one year from the making thereof, unless the same, or some memo- ' randum or note thereof, was in writing, has no application to an action to enforce an oral agreement to execute a lease of a water right, since such lease conveys an interest in the land. p. 674•</p> <p>Corporations. — Contracts.—Manner of Execution. — The provision of §4829 Burns 1894, under which a corporation was organized, that all notes, bonds or contracts entered into by the company; signed by the president, shall be binding on the compaijy, is npt a. restraint upon the general power of the corporation to contract, pp. 674-676.</p> <p>Same. — Agreement to Execute Lease.- — Memorandum.—Evidence.1— A memorandum of the terms of a contract for a lease as agreed . upon between the parties, made in duplicate and read and approved by the parties, is admissible in evidence in the trial of an action for the enforcement of the lease as a part of the transaction between the parties, although the memorandum was not signed.' pp. 676,677.</p> <p>Evidence. — Self Serving Declarations. — Checks.—In. an action to enforce a contract for a lease of waterpower, checks given in payment of the rent were properly introduced in evidence by plaintiff for the purpose of proving payment of rent from the time it went into possession up to the time of the trial, although the check, made after the commencement of the suit, contained the indorsement that it was given in full payment of water rent as per agreement, p. 677.</p> <p>Same. — Self-Serving Declarations. — Letters.—In an action to enforce a contract for a lease of water power, a letter written by plaintiff to defendant, accompanying a check for water rent, stating the terms and conditions upon which the check was sent was admissible in evidence, where defendant accepted the check without making-any objections to the statements made in the letter, pp: 677, 678.</p>

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

<p>'From the Delaware Circuit Court.</p> <p>Transferred from Appellate Court.</p>

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

<p>Erom tbe Elkhart- Circuit Court.</p>

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

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

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

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