Volume 157 — Indiana Reports

From Whit© Circuit Court; Truman F. Palmer, Judge. Habeas corpus by Solomon M. Berkshire against James W. Caley and others to obtain the custody of plaintiff’s minor child. From a judgment in favor of defendants, plaintiff appeals.

From Yigo Circuit Court; James E. Piety, Judge. Action by Rational State Bank of Terre Haute against Sanford Fork & Tool Company and others to set aside mortgages as fraudulent against creditors. From a judgment in favor of defendants, plaintiff appeals.

Erom Lawrence Circuit Court; W. E. Martin, Judge. Action by Lizzie R. Menaugb as administratrix against the Bedford Belt Railway Company and another for damages on account of the death of her husband. Erom a judgment for defendants, plaintiff appeals.

From Wells Circuit, Court,; E. O. Vaughn, Judge. Manclamus to compel the school trustees of the city of Bluffton to enforce an order of the board of health requiring the vaccination of school children. From a judgment in favor of defendants, plaintiff appeals.

From Hamilton. Circuit Court; Theodore P. Davis, Special Judge. Mandamus by tbe State, on the relation of Frank Barnett, against the city of Noblesville, to compel defendant to reinstate relator to the office of city marshal. From a judgment in favor of defendant, relator appeals.

Erom Monroe Circuit Court; W. H. Martin, Judge.. Action against telegraph, company to recover statutory penalty for failure to transmit message. Erom a judgment for plaintiff, defendant appeals.

Erom Delaware Circuit Court; Albert O. Marsh, Judge. Mandamus by. the State on the relation of William E. Willard against Eobert W. Monroe, as county auditor, to compel the issuance of a county warrant. Erom a judgment in favor of plaintiff, defendant appeals.

Erom St. Joseph Circuit Court; Lucius Hubbard, Judge. Action by Laura S. Belledin against David Gooley to contest the will of Lewis Gooley on the ground that the wife of David Gooley was not a competent witness to the execution of the will. Erom the ruling of the court on demurrer to the complaint, plaintiff appeals.

<p>Officers. — Penalty.—Liability on Official Bond. — The penalty imposed on an officer by §132 of the act of March 11, 1895, for failure to report or pay over fees collected is in the nature of a punishment of the officer, and cannot be recovered by the State in an action on an official bond conditioned that such officer shall faithfully discharge his duties and pay over all moneys coming into his hands as such officer.</p>

<p>From Marion Criminal Court; Fremont Alford, Judge.</p> <p>From a conviction for soliciting a bribe, defendant appeals.</p>

From Monroe Circuit Court; W. U. Martin> Judge. Action against telegraph company for damages. From action of court in overruling demurrer to complaint, defendant appeals.

From Hendricks Circuit Court; Thomas J. Gofer, Judge. Action by Elij ah Lee for the custody of his minor son who had been committed to the reform school for boys. From a judgment in favor of defendants, plaintiff appeals.

Erom Monroe Circuit Court; W. H. Martin, Judge. Action by Henry Henley and others against the Western Union Telegraph Company for failure to transmit message. Erom a judgment for plaintiffs, defendant appeals.

<p>From Madison. Circuit Court; John F. McClure, Judge.</p> <p>From a conviction of larceny, defendant appeals.</p>

From Henry Circuit Court; TF. O. Barnard, Judge. Mandamus by the State on the relation of the drainage commissioner of Henry county, against the board of commissioners of Henry county. From a judgment for defendants, relator appeals.

<p>Cbiminal Law. — Pleading.— Conspiracy to Commit a Felony.— In pleading a conspiracy to commit a felony, the elements of the intended felony must be fully disclosed, so that the court may see that a public offense has been committed, p. 102.</p> <p>Blackmailing. — Gist of the Offense. — The gist of the felony defined as blackmailing is the extortion of money, chattels, or valuable securities from a person by threatening to expose his crimes or immoralities. p. 102.</p> <p>Same.— Indictment. — An indictment for conspiracy to blackmail which fails to allege the ownership of the property, or explain the absence of such averment, is insufficient, pp. 102,103.</p>

From Hamilton. Circuit Court; J. F. Neal, Judge. Action by Milton Garrigus against the board of county commissioners to recover for services of expert accountants in examination of certain public records. From a judgment for defendants, plaintiff appeals.

From Clark Circuit Court; J. K. Marsh,, Judge. Appeal from judgment in action originating before a justice of the peace involving the constitutionality of a statute where the amount in controversy was $1.

<p>From Olay Circuit Court; 8. M. McGregor, Judge.</p> <p>Prosecution of Albert E. Kirk for forgery. Erom a judgment of acquittal the State appeals.</p>

<p>Erom Elkhart Circuit Court; J. D. Ferrall, Judge.</p> <p>William W. Currier was convicted of grand larceny, and appeals.</p>

Erom Randolph Circuit Court; J. W. Headingkon, J udge. Action by the Randolph County Bank against William Harris and another on a note executed by the latter to the Citizens Bank and assigned to plaintiff, and to foreclose a mortgage. Erom a judgment in favor of plaintiff, Jesse Canaday, receiver of the Citizens Bank, who' had been made a party, defendant appeals.

Erom Randolph. Circuit Court; A. O. Marsh, Judge. Mandamus by directors of county infirmary of Darke county, Ohio, to compel Thomas J. Overman as sheriff of Randolph county, Indiana, to receive an insane pauper into his custody. From a judgment in favor of defendant, plaintiff appeals.

<p>Criminal Law. — Plea in Abatement. — Former Jeopardy. — The plea of former jeopardy is a plea in bar, and not pleadable as a. plea in abatement, p. 148.</p> <p>Same. — Plea in Bar. — Former Jeopardy. — A defendant is not in legal jeopardy, within the meaning of the constitutional restriction, until he has been put upon trial before a court of competent jurisdiction, upon an indictment or information sufficient in form and substance to sustain a conviction, p. 1J¡8.</p> <p>Same. — Plea in Bar. — Delay in Trial. — A plea alleging the failure of the State to accord defendant a trial within three terms after his arrest, under the provisions of §1852 Burns 1894, must show that the delay was not caused by defendant’s own act. pp. 148, 14.9.</p> <p>Same. — Plea in Abatement. — Prosecution by Information. — A plea in abatement challenging the right of the State to prosecute by information, alleging that no public offense had been committed by defendant at the time of filing the information, and that he was not then under legal charge of having committed the offense stated in the information, does not negative that a public offense had been committed previous to the time of filing the information for which the defendant might be prosecuted, and of which he was accused and not indicted, and the grand jury had been discharged for the term. pp. 1J9, 150.</p> <p>Appeal and Error. — Bill of Exceptions. — A bill of exceptions filed at a subsequent term of court, without leave of court so to do affirmatively appearing from the order-book entry cannot become a part of the record on appeal, pp. 150-168.</p> <p>Criminal Law. — Records.—Lost Information. — Substitution of Copy. • — Where after trial and verdict, and after motion for new trial had been filed, but before final judgment, the information upon which defendant was tried became lost, and the court ordered a copy thereof, which he certified to be correct, to be spread upon the information record, defendant was not injured by such substitution, and the court was not thereby divested of authority to pronounce final judgment, pp. 158, 153.</p>

Erom Boone Circuit Court; J. V. Kent, Judge. Action by Charles Gf. Wills and others against Thomas H. Martin and others to enforce the lien of an assessment for a street improvement. Erom a judgment for plaintiffs, defendants appeal.

From Laporte Circuit Court; J. O. Richter, Judge. Action by William H. Oren against tbe board of commissioners of St. Joseph county for services rendered in sale of bonds. From a judgment in favor of defendant, plaintiff appeals.

Erom the Clinton Circuit Court; J. V. Kent, Judge. Action by Noblesville Gas and Improvement Company to enjoin the city of Noblesville from the enforcement of an ordinance regulating the rates to be charged consumers of natural gas. Erom a judgment in favor of plaintiff, defendant appeals.

From Vanderburgh Circuit Court; H. A. Mattison, Judge. Habeas corpus by Paul C. Hill against Martin Koepke, as sheriff. From the action of the court in overruling a motion to- quash the writ, defendant appeals.

<p>Appeal. — Action to Establish Will. — An action to secure the probate of an alleged will is an action to determine the property rights of living persons, and an appeal in such a case is not governed by §§2454, 2455 R. S. 1881, providing that appeals in matters connected with decedents estates must be perfected within forty days after final judgment, p. 181.</p> <p>Evidence. — Hearsay.—The rule that hearsay evidence must be excluded from the jury applies with equal force to statements made by one who has since died. p. 182.</p> <p>Wills. — Probate.—Hearsay Evidence. — Where it is sought to secure the probate of a will, both witnesses thereto being dead, it is improper to admit testimony as to statements made by one of the alleged witnesses in reference to the will’s execution, although many years have passed, and it is impossible to procure better proof. pp. 181-183.</p> <p>Evidence.— Handwriting.— Opinion: — Where the genuineness of signatures of the testator and of deceased witnesses to a will is in issue, a witness who was a near relative of testator, and a neighbor of the two subscribing witnesses, had seen them write, had received letters from the testator, and was acquainted with the handwriting of each, is shown to have sufficient 'qualifications to entitle him to an opinion as to the genuineness of the signatures of all. p. 184.</p> <p>Wills. — Action to Secure Probate. — Burden of Proof. — In an action to secure the probate of an alleged will, the execution of which is denied, the burden of proof is on the plaintiff to establish its execution by a preponderance of the evidence, pp. 184-187.</p>

<p>Erom Morgan Circuit Court; G. W. Grubbs, Judge.</p> <p>Action by Charlotte Richardson, as administratrix, against Byron Dawson. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From St. Joseph Circuit Court; Lucian Hubbard, Judge.</p> <p>Action by William M. Jewell and others against Albert Gaylor and others. Erom a judgment in favor of defendants, plaintiffs appeal.</p>

<p>Erom Marion Criminal Court; Fremont Alford, Judge.</p> <p>Erom a conviction for attempting to bribe an election judge, defendant appeals.</p>

Erom Vanderburgh Circuit Court; J. H. Foster, Judge. Application for mandamus by the State, on relation of Louis Koester, against Michael Gorman and others, constituting the board of public works of the city of Evansville, and the city of Evansville. Erom a judgment for relator, defendants appeal.

<p>From Wayne Circuit Court; H. G. Fox, Judge.</p> <p>Action by Curran Beall, Jr., against the Union Traction Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Erom Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Habeas corpus by Erank E. Williams for his discharge from prison. Appeal from order quashing the writ.</p>

Erom Morgan Circuit Court; G. W. Grubbs, Judge. Action by Eureka Lumber Company and others against Buff & Blue Oolitic Stone Company. Erom an interlocutory order refusing to appoint a receiver for the stone company, plaintiffs appeal.

<p>Erom Eloyd Circuit Court; W. G. Utz, Judge.</p> <p>Emmet Braxton was convicted of assault and battery with, intent to commit manslaughter, and appeals.</p>

From Marion Superior Court; J. L. McMasters, Judge. Action by Lettie Martin, administratrix, against the Pittsburgh, etc., R. Co., for the death of her husband. From a judgment for plaintiff, defendant’appeals.

From St. Joseph. Circuit Court; Lucius Hubbard, Judge. Action by Samuel E. Barney against the Indiana R. Co. and others on contract. From a judgment for defendants on demurrer to complaint, plaintiff appeals.

<p>Negligence.— Pleading.— Contributory Negligence.— Constitutional Law. — The act of 1899 (Acts 1899, p. 58, §359a Burns 1901), providing that in all actions for damages arising from personal injury or death it shall not be necessary for plaintiff to allege or prove freedom from contributory negligence on the part of plaintiff, or on the part of the person for whose injury or death the action is brought, is not violative of §22, article 4 of the State Constitution, prohibiting the passage of local or special laws regulating the practice in courts of justice, pp. 333-337.</p> <p>Same. — Pleading.—Contributory Negligence. — Constitutional Law. — Statutes. — The act of 1899 (Acts 1899, p. 58, §359a Burns, 1901), providing that in all actions for damages arising from personal injury or death it shall not be necessary for plaintiff to allege or prove freedom from contributory negligence on the part of plaintiff, or on the part of the person for whose injury or death the action is brought, is not invalid because it expressly excludes all pending cases from its operation, p. 337.</p>

<p>Grimnal Law. — Indictment.—Seduction.—An indictment for seduction stating all of the elements of the crime as defined in the statute is sufficient, p. 239.</p> <p>Seduction. — Promise of Marriage by Married Man. — -In a prosecution under §2078 Burns 1901 for seduction, an instruction that if the prosecuting witness, at the time of defendant’s alleged promise to marry her under which she was seduced, knew that defendant was a married man and living with his family, the jury should acquit, was proper, where there was evidence to which the instruction was applicable, p. $39.</p> <p>Trial. —Impeachment. — Criminal Law. —Seduction. —Where in a prosecution for seduction defendant’s wife testified that some days prior to the date of the alleged seduction she met the prosecuting witness on the street with her husband and told her that the man she was with was her husband, and that she wanted her to let him alone, and the State’s attorneys asked her if she had not told a certain person that her husband had run away, leaving her without a cent, and if a certain neighbor had not brought her provisions to keep her from starving while her husband was away with prosecuting witness, the State was bound by her answers in the negative, and the matters inquired about being collateral, the witness could not be impeached thereon, p. $39.</p> <p>•Seduction.— Corroborating Evidence.— Instruction.— Under §1876 Burns 1901, that in prosecutions for seduction “the evidence of the female must be corroborated to the extent required as to the principal witness in cases of perjury,” an instruction that if the jury believed beyond a reasonable doubt that defendant had carnal and illicit intercourse with the prosecuting witness, a female of good repute for chastity, less than twenty-one years old, under promise of marriage which she had good reason to rely on, they should find defendant guilty as charged, was reversible error, since the jury might have found that all the facts on which conviction was conditioned were proved beyond a reasonable doubt by the unsupported testimony of the prosecuting witness, p. $Jfi.</p>

<p>Erom Hamilton. Circuit Court; J. F. Neal, Judge.</p> <p>Action by Manson Head against Clay township, Hamilton county, for damages for the killing and maiming of sheep. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Appellee Herb Smith was tried on the charge of carrying concealed weapons and acquitted. Appeal by State.</p>

From Delaware Circuit Court; Cl. li. Koons, Judge. Action by Jesse Canaday as receiver of tbe Citizens Bank of Union City against Benjamin E. Coddington and others as directors for_damages resulting from alleged negligence in the management of the affairs of the bank. Erom a judgment for plaintiff, Coddington and Smith, appeal.

<p>Ero-m Lake Superior Court; H. B. TuihAll, Judge.</p> <p>Action by Albert M. Ellis, by his next friend, against the city of Hammond for damages for personal injuries caused by an alleged defective street. Erom a'judgment for defendant, plaintiff appeals.</p>

<p>Erom Elldiart Circuit Court; P. L. Turner, Special J udge.</p> <p>Action by Henry Clarke and others against the Acme Cycle Company in ‘which defendant sought to recover damages on a counterclaim. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal. — Case Within Jurisdiction of Justice of the Peace. — Under the provision of the act of 1901 (Acts 1901, p. 566) no appeal lies to the Supreme or Appellate Court from a judgment on a promissory-note not exceeding §200.</p>

<p>Erom Montgomery Circuit Court; Jere West, Judge.</p> <p>Henry Baum was convicted of selling Ms vote and disfranchised. Erom the judgment he appeals.</p>

From Fountain Circuit Court; Joseph M. Babb, Judge. Action by State against the Cleveland, etc., R. Co., to recover penalties for failure to maintain blackboard of dimensions provided by statute for the announcement of the arrival of trains. From a judgment in favor of defendant, plaintiff appeals.

From Marion Superior Court; J. M. Leathers, Judge. Action by Marion Trust Company as administrator of the estate of Mason J. Osgood, deceased, against the Sheridan Brick Works on certain promissory notes, and for the appointment of a receiver. Erom an order of court appointing a receiver, defendant appeals.

<p>Criminal Law. — New Trial. — Verdict Contrary to Law. — An assignment in a motion for a new trial in a criminal cause that the verdict was contrary to law is sufficient to require the Supreme Court to determine whether there is an absence of evidence in support of the verdict as a whole or of some fact essential to the existence of the crime charged, pp. SOS, SOS,</p> <p>Abson. — Evidence.—Sufficiency.—Corpus Delicti. — In a prosecution for attempted arson the evidence showed that an empty cigar box with a hole in the top, smoke and grease marked, as if it had served to hold a burning candle, was found lying on the ground under the edge of a frame house. There were no smoke or heat marks on the house, nor other unusual combustible material present. There was evidence that a cigar dealer gave accused a cigar box similar to the one found, but it was not established whether it was before or after the box was found under the house. The accused was on unfriendly terms with the son of the owner and occupant of the house, but it was not shown that he knew that the son lived in the house with his father, or that he had a father living. Held, that the evidence was not sufficient to support a conviction, pp. 301-305.</p>

Erom Marion Superior Court; Vinson Garter, Judge. Action by Ambrose Russell against the Pittsburgh, etc., R. Co-., for an injury sustained while acting as a porter on a Pullman sleeping car attached to defendant’s train. Erom a judgment for defendant, plaintiff appeals.

From Wells Circuit Court; E. G. Vaughn, Judge. Proceeding by Manford McGeath to' contest the probate of the will of Benjamin F. Starr. From a judgment admitting the will to probate, contestant appeals.

Erom Jay Circuit Court; J. M. Smith, Judge. Sheridan Bailey was convicted before a justice of the peace for violation of the compulsory education law. Erom a judgment of the circuit court quashing the affidavit, the State appeals.

<p>Conteacts. — Construction by Parties. — Patents.—Royalties.—Where a complaint in an action to recover royalty for an improvement sets out a written contract clear and unambiguous in its terms describing the patent by name and number, it was not error to strike out an allegation seeking to embrace therein a second patent, which was not issued until about a year after the contract was entered into, on the theory that by a common understanding and mutual consent the contract was construed and acted upon as embracing subsequent improvements, there being no averment of mutual mistake, nor reformation of the contract sought, pp. 382-337.</p> <p>Pleading. — Answer.—Surplusage.—Paragraphs of answer, good as general denials, not purporting to be pleas in confession and avoidance, are not rendered bad by immaterial matter alleged therein. p. 337.</p> <p>Conteacts. — Rescission.—When a party, even without right, claims to rescind a contract, if the other party agrees to the rescission, or does not object thereto, and permits it to be rescinded, the rescission is by mutual consent, pp. 387, 338.</p> <p>Pleading. — Harmless Error. — Available error can not be predicated upon the action .of the court in overruling a demurrer to an answer where the record shows that at the close of the plaintiff’s evidence in chief the jury, by direction of the court, returned a verdict for defendant, pp. 338, 339.</p> <p>Evidence. — Contracts.—Letters Written in Negotiations. — Merger.— Letters written in the negotiation of a contract are merged in the written contract and are not admissible in evidence in an action on the contract, pp. 889, 8Jfi.</p> <p>Same. — Patents.—Royalties.—Contracts.—In an action on a contract to recover royalty on a patent specifically described by name and number, a second patent not referred to in the contract was not admissible in evidence, p. SJfl.</p> <p>Appeal and Eeeoe. — Presumptions.—Where it is not shown that all of the evidence is in the record it will be presumed on appeal that other evidence was given which j ustified the court in directing a verdict for defendant, p. SJ¡,1.</p>

From. Warrick Circuit Court; E. M. Swan, Judge. Mandamus by State on relation of Wm. E. Mason against William Schrader, road supervisor, to compel the issuance of a road tax receipt. From a judgment awarding the writ, defendant appealed after the expiration of his term of office.

From Marion Superior Court; Vinson darter, Judge. ( Mandamus by the State, on relation of Ann E. Wood, against the Consumers Gas Trust Company to compel defendant to permit relatrix to use natural gas from its main. From a judgment for defendant, plaintiff appeals.

From Wayne Circuit Court; II. G. Fox, Judge. Mandamus by Stated on relation of Samuel J. Johnston, against Wayne County Council and others to require the council to make an additional appropriation for the payment of relator’s services as township assessor. From a judgment for defendants, relator appeals.

From Hamilton Circuit Court; J. F. Neal, Judge. From a judgment acquitting William L. Sopher of the charge of selling intoxicating liquors, the State appeals on reserved questions of law.

<p>From Gibson. Circuit Court; O. M. Welborn, Judge.</p> <p>Joseph D. Keith was convicted of murder, and appeals.</p>

<p>From Parke Circuit Court; A. F. White, Judge.</p> <p>Action by town of Rosedale against James M. Hanner for violation of town ordinance. From a judgment for defendant, plaintiff appeals.</p>

<p>Erom Laporte Superior Court; TI. B. Tuthill, Judge.</p> <p>Action by Colvert H. Defrees against Minnie Leeds to foreclose a street improvement assessment. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Municipal Corporations. — Sewers.— Foreclosure of Assessments.— Complaint. — Section 4430 Burns 1901 provides that the appraisers appointed to assess the benefits in the construction of a sewer shall file the schedule thereof with the clerk of the board of town trustees who shall record the same, after which the assessments therein made shall become a lien on the lots specified. Section 4437 Burns 1901 provides that in an action to enforce the lien the presumption of law shall be that all provisions of the act have been complied with. Held, that such presumption does not render sufficient a-complaint to enforce a sewer assessment lien which fails to aver that the schedule showing the benefits assessed against defendant’s property was recorded in the records of the board of trustees. pp. 399-401.</p> <p>Same. — Sewers.—Act of 1867 not Repealed by Act of 1889. — The act of 1867 (§§4429-4443 Burns 1901) for the construction of sewers was not repealed by the act of 1889, known as the Barrett law, but said acts provide two separate and distinct systems for the construction of sewers by incorporated towns, p. 401.</p>

From Marion Superior Court; Vinson Garter, Judge. Action by William C. Smith and others against Clara L. Shank and others for the enforcement of street improvement assessments. From a judgment for plaintiffs, defendants appeal.

From St. Joseph Circuit Court; W. A. Funic, Judge. Mandamus by State on tbe relation of Watson H. Bunn, against Manuel M. Fisher, Mayor of Mishawaka, and the common council of such city. From a judgment for defendants, relator appeals.

<p>From Marion Circuit Court; II. O. Allen, Judge.</p> <p>Action by David Eobinson against tbe Indianapolis Street Eailway Company on account of personal injuries to bis wife. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Blackford Circuit Court; J. 8. Dailey, Special Judge.</p> <p>Albert Musser was tried and convicted of murder in the first degree, and he appeals.</p>

<p>Fees and Salames. — Act of 1891. — Salary of County Treasurer.— Publication and Distribution of Acts.' — The fee and salary act of 1891 (Acts 1891, p. 424), provided that where a county officer had been elected before “the taking effect” of the act he should not be subject to the provisions thereof. As to county treasurers, this act was unconstitutional until amended by the act of 1893 (Acts 1893, p. 142). Held, in a construction of the act, that the words “taking effect” did not mean “become valid and operative” in all its parts, but referred to the taking effect upon its publication and distribution with other laws of the legislative session of 1891, and that the salary of a county treasurer elected after publication and distribution of the act of 1891, but before the amendment of 1893, was governed by the act of 1891. pp. /¡.lfi-Ji.52.</p> <p>County. — Claims. — Allowance by Commissioners. — In respect to claims against a county,' the board of county commissioners acts in an administrative capacity, with power only to state the amount of legal claims chargeable against the county, and the finding of the board is but prima facie evidence of the correctness of the claim. p. 453.</p> <p>Same. — Allowance by Commissioners of Illegal Claim to Treasurer.— The allowance by a board of county commissioners to a county treasurer of salary and fees to which he was not legally entitled, but which was allowed under a statute which the commissioners thought to be in force, was not a voluntary payment under mistake of law, but was in legal effect a withholding of the county’s money by the treasurer with the connivance of the board of commissioners. pp. 453, 454-</p> <p>Officers.— Right to Office not Contractual. — The right to public office is not contractual, and the rule of law that after a statute has been construed the construction becomes, as to contract rights, a part of the statute, is not applicable, pp. 454-455.</p> <p>County. — Recovery of Fees and Salary Improperly Allowed County Treasurer. — County commissioners, in view of the decision of the Supreme Court holding the fee and salary act of 1891 unconstitutional as to county treasurers, made allowances to the treasurer in accordance with the prior act of 1879. Three months before the close of such treasurer’s term of office the Supreme Court modified its former decision and held that the act of 1891, as amended by the act of 1893, was valid as to county treasurers, and the commissioners made settlement for the last three months in accordance with the act of 1891. Held, that the county in an action against the treasurer could recover the excess which was paid under the act of 1879 over that which should have been paid under the act of 1891. pp. 454-457.</p> <p>Same. — Allowing Claim to County Treasurer. — Entry of Public Necessity. — In an action to recover from an ex-county treasurer an excess of salary, where an answer alleged that the county commissioners had entered an order declaring that public necessity required the services of a treasurer, and thereafter all allowances should be made as a matter of indispensable necessity, but it was also alleged in the answer that the excessive payments were made under a statute which the commissioners thought to be in force, the payment was under the statute, and the public necessity order was no justification for the excessive payments, the reliance on the statute negativing the idea of public necessity, pp. 454-457.</p> <p>Appeal. — Evidence.—Sufficiency.—In an action to recover from an ex-county treasurer an excess of fees and salary, the want of evidence to support a finding that he was allowed a certain sum on a certain date is not material, where it was admitted that upon final settlement the amount received by him exceeded that to which he was entitled by the amount represented by the judgment. pp. 456-458.</p>

<p>Trial. — Admission of Evidence. — Objection.—Exception.—No question is presented on the exclusion of testimony, where the offer to prove was not made until after the objection was sustained and the exception taken, p. 461.</p> <p>Continuance. — Absence of Witness. — Affidavit.—An application for a continuance on account of the absence of a witness is properly denied where it is not made to appear by the facts alleged in the affidavit in support thereof that there was any probability of obtaining the testimony of such witness within a reasonable time. p. 462.'</p> <p>Trial. — Directing Verdict. — Where the evidence introduced by plaintiff wholly fails to establish any cause of action in his favor under the issues, the court may properly direct a verdict for defendant. p. 462.</p>

<p>Pleading. — Evidence.—Proof of either actual or constructive notice is sufficient to support an allegation, in a complaint in an action against a city for personal injuries sustained by reason of a defective culvert, “that the defendant had notice.” pp. 464, 465.</p> <p>Trial. — Interrogatories.—Verdict.—The finding in a general verdict in an action against a city for personal injuries sustained on account of a defective culvert that defendant had constructive notice of the defect, is not affected by an answer to an interrogatory that there was no evidence as to actual notice, pp. 464> 465.</p> <p>Appeal and Error. — Evidence.—Bill of Exceptions. — The evidence is not in the record where the record does not show that the bill of exceptions containing the evidence was ever filed. . pp. 465, 466.</p> <p>Same. — Presumptions.—Evidence Not in Record— It will be presumed on appeal from a judgment in favor of plaintiff, in the absence of the evidence from the record, that the evidence fully sustained the averments of the complaint, p. 466.</p> <p>Same. — Presumptions.—Evidence Not in Record. — A cause will not be reversed on an affidavit filed in support of a motion for a new trial in an action for personal injuries that plaintiff was brought in and out of court in an invalid chair, and as soon as the trial was over he was able to walk without support, where the evidence is not in the record, since it must be presumed in favor of the action of the trial court in overruling the motion for a new trial that plaintiff testified that he could walk without support, and that he explained the use of the invalid chair so that the court in refusing to grant a new trial was satisfied that in fact no fraud had been practiced, pp. 466, 467.</p> <p>New Trial. — Admissions Made After Trial. — Admissions made by a party to an action by act or word after trial may be used to support a charge of misconduct made a ground for a new trial. Sullivan v. O’Conner, 77 Ind. 149, and Crow v. Brunson, 1 Ind. App. 268, disapproved. pp. 466, 467.</p>

<p>Pleading. — Multifariousness.—Parties.—Equity.—In 1897 the county-auditor made a distribution of the common school fund and the county treasurer obtained possession of the orders for the amount apportioned plaintiff school city, marked the orders paid, and canceled them and filed them with the county auditor. The county treasurer claims that he deposited the money in a certain bank which was authorized by the treasurer of the school board to accept and receipt for such funds. The bank accounted for a part thereof, but claimed $5,900 of the money was not deposited with it, but was used by the treasurer in paying a county loan. Mandamus was brought against the county treasurer’s successor to compel him to pay over said balance, but he answered that the canceled orders were on file showing the payment thereof, which the Supreme Court held was a good answer. Plaintiff then demanded that the county auditor sue such treasurer on his bond for said sum, but this the auditor refused to do, and thereafter the county commissioners compromised with the treasurer’s bondsmen for other defalcations of such treasurer, not including the claim in suit, and released them from all liability, whereupon the treasurer of the school city brought suit against the county treasurer and his bondsmen and successors in office, the county auditor, the county commissioners and the bank. Held, that the complaint under §269 Burns 1901, which is a substantial reenactment of the rules governing pleadings in chancery, was not bad for multifariousness, jop. 468-476.</p> <p>Pleading. — Multifariousness.—Parties.—Equity.—Where the subject of the action has become so complicated and entangled that the rights of the parties are involved in doubt, and it is difficult to determine who is liable, and who is not, except upon a full hearing in which all the persons in any way affected or interested are before the court, equity permits the joinder of all those so related to the controversy and who have a common interest in some one or more branches of it. pp. 468-476.</p>

<p>Erom Marshall Circuit Court; A. G. Qafron, Judge.</p> <p>Suit by Charles H. Neu and others to enjoin the town of Bourbon from carrying out a plan to purchase or construct a system of water-works and electric light plant. From a judgment for defendants, plaintiffs appeal.</p>

Ero'ru Jackson Circuit Court; T. B. Bnskirk, Judge. Suit by tbe First National Bank of Seymour against Alexander Greger, treasurer of Jackson county to enjoin tbe collection of taxes. From a judgment for defendant on demurrer to complaint, plaintiff appeals.

From Vigo Superior Court; S. G. Stimson, Judge. Mandamus by State, on relation of Winfield S. Phillips, recorder of Vigo county, to compel the latter to record notice of mechanic’s lien for twenty-five cents. From a judgment for defendant, relator appeals.

From Morgan Circuit Court; M. II. Paries, Judge. Injunction by Sanders Hubbard against E. L. Goss, treasurer of Morgan county, and others to restrain the collection of certain taxes. From a decree for defendant, plaintiff appeals.

<p>From Allen Circuit Court; Edward O'Rourke, Judge.</p> <p>From a judgment in favor of Willard A. Fairfield and others establishing a drain, the remonstrators, Annie A. Smith and others, appeal.</p>

<p>Erom Boone Circuit Court; B. 8. Higgins, Judge.</p> <p>Action by John J. Houlihan against the Indianapolis Union Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Evidence Not in Record. — A bill of exceptions containing the evidence is not in the record where there is no order-book entry showing the filing of the bill after it was signed by the judge, p. 509.</p> <p>Same . — Transcript.—Authentication by Cleric. — The transcript of the record of the proceedings in the trial court must be authenticated by the seal of such court, or it will not be considered on appeal. p. 509.</p>

From Lawrence Circuit Court; W. H. Martm, Judge. Action by Lafayette Chestnut against the Southern Indiana Railway Company for damages on account of personal injuries. From a judgment for defendant, plaintiff-appeals.

<p>Criminal Law. — Conviction for Violation of Penal Statute. — Appeal. —One convicted for having violated a penal statute can have no questions under the statute reviewed on appeal which were not raised in his particular case. p. 520.</p> <p>Food. — Adulteration.—Prosecution Under Act of 1899. — An affidavit charging one with having for sale adulterated milk, in violation of §2 of the act of February 28, 1899 (Acts 1899, p. 189), need not disclose whether any property was taken from defendant, or how the evidence against him was procured, and it is therefore immaterial whether or not the act provides for the taking of property without just compensation, pp. 519-521.</p> <p>Constitutional Law. — Delegation of Legislative Authority. — The provision of the pure food law of 1899 (Acts 1899, p. 189), that within ninety days after the passage of the act the board of health shall adopt measures necessary to facilitate the law’s enforcement, and prepare rules regulating minimum standards of foods, defining specific adulterations, etc., does not render the law violative of §25, article 1, of the Constitution, which provides that “no law shall be passed, the taking effect of which shall be made to depend upon any authority except as provided in the Constitution.” pp. 521-528.</p> <p>Constitutional Law. — Delegation of Legislative, Authority. — The provision of the pure food law of 1899, that the State Board of Health shall adopt such measures as may be necessary to facilitate the enforcement of the law is not a delegation of legislative authority. pp. 521-528.</p> <p>Statutes. — Title of Act. — It is not essential to a good title that the subject of the act shall be expressed in exact terms. It is sufficient if the subject is fairly deducible from the language employed, p. 524.</p> <p>Food. — ■ Constitutionality of Pure Food Law of 1899.— Title of Act.— The following title of the pure food act of 1899 : “An act forbidding the manufacture and sale, or offer for sale, any adulterated foods or drugs, defining foods and drugs, stating wherein the adulterations of foods and drugs consist, and defining the duties of the State Board of Health,” etc., is not in violation of the constitutional requirement that “every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” pp. 528-525.</p> <p>Criminal Law. — Penal Statute. — Prohibitory Section. — The fact that the prohibitory section of a penal statute does not include an act for which a penalty is imposed in a later section, does not render such later section invalid, p. 525.</p> <p>Food. — Violation of Pure Food Law. — Affidavit.—An affidavit charging defendant with violating the pure food law of 1899 (Acts 1899, p. 189), and reciting that he “had in his possession, with intent to sell, one pint of milk, adulterated with a certain substance injurious to health, to wit, formaldehyde,” is not bad for want of an allegation that formaldehyde is either poisonous or injurious to health, p. 526.</p> <p>Same. — Violation of Pure Food Law. — Affidavit.—An affidavit charging defendant with having in his possession adulterated food, need not allege that the food was adulterated by defendant, p. 526.</p> <p>Same. — Enforcement of Pure Food Law by Others Than Board of Health. — The provision of §2 of the pure food law of 1899, that it shall be the duty of the State Board of Health to enforce the provisions of such law, does not exclude individuals from making complaint against one for violation of the statute, p. 526.</p> <p>Same. — Adulterated Mills. — Affidavit.—Where one is charged with having in his possession, with intent to sell, milk adulterated with a substance injurious to health, it is not necessary that the affidavit charging the offense should allege that the milk in defendant’s possession violated a certain standard fixed by the State Board of Health, p. 527.</p> <p>Food. — Adulterated Milk. — Affidavit.— An affidavit charging one with having for sale adulterated milk, need not set out the proviso of §1 of the pure food law, that the law shall not apply to mixtures or compounds recognized as articles of food, and not injurious to health, p. 527.</p> <p>Opinion Evidence.— Physician as an Expert Witness.— Where a physician exhibits such a degree of knowledge as to make it appear that his opinion is of some value, he is entitled to testify, though his knowledge is gained from reading, study and conversations with other physicians, and not from his own experiments, pp. 527, 528.</p> <p>Food.— Adulteration of Milk.— Evidence.— Directing Verdict. — Where, in a prosecution of one charged with “knowingly” having adulterated milk in his possession, with intent to sell the same, the evidence showed that in the middle of the forenoon in the hot season of the year, defendant had the adulterated milk in his exclusive possession, with intent to sell and deliver it to a customer, it was proper to refuse to instruct the jury to return a verdict for defendant on the ground that it had not been proved that defendant had knowledge of the adulteration, pp. 528, 529.</p> <p>Same. — Adulteration of Milk. — Evidence.—Defendant was charged with having in his possession, with intent to sell, milk adulterated with formaldehyde. He testified that he had used no formaldehyde, and that the milk contained none, to his knowledge, but that at the time in question he had put into the milk a substance known as “Palmer’s Preserver,” and that the maker of the substance had told him that it contained no formaldehyde. Defendant was then asked what representations had been made to him as to the substance used, but was not permitted to answer, and a circular was offered in evidence and excluded, which accompanied the preservative and which stated that it was harmless and guaranteed to contain no acid or injurious ingredient. Held, that the exclusion of the evidence was reversible error, pp. 580, 531.</p>

From Clark Circuit Court; J. K. Matrsh, Judge. Action by Mary M. Tilden against the Louisville and Jeffersonville Ferry Company for personal injuries. From a judgment for defendant and overruling plaintiff’s motion to dismiss tbe action, plaintiff appeals.

<p>Criminal Law. — Indictment.— Grand Jury. — Where an indictment, reSular upon its face, is returned into open court without objection, it will, in the absence of anything to the contrary upon the record, Presumed that the grand jury returning it was duly impaneled, charged and sworn, pp. 537-539.</p> <p>Same . — Indictment.—Grand Jury. — Appeal and Error. — Objections to the organization of the grand jury, or to the regularity of the procedings of the court in receiving an indictment, must be presented to the trial court by motion or plea in abatement, otherwise they will be deemed waived, and the fact that a defendant’s defense was unsoundness of mind does not change the rule as to such waiver, pp. 5S9, SJfi.</p> <p>Appeal and Ebbor. — Criminal Law. — Where a defendant in a criminal cause appeals to the Supreme Court from a judgment of conviction, he must show affirmatively by the record that there was error in the proceedings of the court, and that such error was prejudicial to his substantial rights, p. 5Jfi.</p> <p>New Trial. — Newly Discovered Evidence. — Criminal Law. — No error was committed in denying a motion for a new trial, on the ground of newly discovered evidence, in a prosecution for murder in which unsoundness of mind was one of the defenses, where the evidence relied upon was as to unsoundness of mind of defendant and was cumulative, pp. BJfi, 5Jj,l.</p> <p>Criminal Law. — Evidence.—Weight.— Appeal and Error.— Where, in a prosecution for murder, defendant interposed the plea of insanity, the finding of the jury that defendant was of sound mind at the time the offense was committed will not be disturbed on appeal on the evidence, on the ground that the testimony for the defendant on the issue of insanity was of an affirmative character, and that on behalf of the State was negative, and that for this reason the former only should be considered, pp. B^l-SJ¡Jj..</p>

Erom Jasper Circuit Court; B. 8. Dwiggins, Special Judge. Action by William B. Brown against the Chicago, Indianapolis and Louisville Railway Company for damages to plaintiff’s property caused by fire escaping from defendant’s right of way. Erom a judgment for plaintiff, defendant appeals.

<p>Criminal Law. — Affidavit and Information.— Abortion.— Separate Counts Charging Inconsistent Means. — Under §1813 Burns 1901, providing the felony or misdemeanor may be charged in separate counts in the indictment or information to have been committed by different means, the State may, by separate counts or paragraphs, not only in the information, but also in the affidavit on which the information rests, in a prosecution under §1996 Bums 1901, for producing an abortion resulting in the woman’s death, charge the offense to have been committed by the accused by different means or in different ways. pp. 550-554.</p> <p>Criminal Law.— Evidence.. — Bes Gestae. — Abortion.—Where, in a prosecution for abortion, causing the death of the woman, a witness for the State testified to a part of a conversation overheard by her, between defendant and deceased, after the abortion was committed, the defendant was entitled to give the entire conversation for the purpose of rebutting and explaining the portion introduced by the State, pp. 554-569.</p> <p>Evidence. — Conversation.—It is error to permit a witness to testify as to his mere understanding obtained from a conversation, instead of relating the conversation, pp. 569-571.</p> <p>Appeal and Error.— Instructions. — Record.— Available error cannot be predicated upon the action of the court in refusing an instruction offered by appellant where all of the instructions are not in the record, pp. 571, 572.</p> <p>Abortion.— Necessity.— Evidence.— In a prosecution under §1996 Burns 1901, for abortion, the absence of necessity of producing the abortion in order to save the life of the woman may be shown by circumstantial evidence, p. 572.</p>

A judgment for' defendant was affirmed, on appeal, by tbe Appellate Court, and plaintiff made application for transfer of tbe cause to tbe Supreme Court.

<p>Robbery. — Indictment.—Assault.—Where, in an indictment for robbery, an assault is alleged in connection therewith, it is not necessary to the sufficiency of the indictment that it also contain an allegation that the defendant “had the present ability” to commit the robbery, p. 575.</p> <p>Same. — Indictment.—In an indictment for robbery it is not necessary to allege an assault by the defendant on the prosecuting witness. p. 576.</p> <p>Same. — Indictment.—Use of Word "Violently." — An allegation in an indictment for robbery, that the articles stolen were taken “violently” is equivalent to an allegation that they were taken “by violence.” pp. 576, 577.</p>

<p>Erom Marion Criminal Court; Fremont Alford, Judge.</p> <p>Clyde Wynegar was convicted of embezzlement, and appeals.</p>

From Rush Circuit Court; L. P. Newby, Special Judge. Mandamus proceeding by State on relation of George W. Looney, Jr., township trustee, against Samuel E. Clifton, road supervisor, to require the latter to build a culvert as directed. From a judgment for defendant, relator appeals.

Erom Lake Circuit Court; J. II. Qillett, Judge. Suit by E. A. Shedd and others against J. A. Webb and the Lake Shore and Michigan Southern Railway Company to foreclose a mortgage. Erom a judgment in favor of the railway company, plaintiffs appeal.

<p>From Putnam Circuit Court; 8. M. McGregor, Judge.</p> <p>Action by city of Greencastle against Daniel B, Rowland to recover penalty for violation of city ordinance.</p>

Erom Delaware Circuit Court; J. G. Lefler, Judge. Action by J. H. Watkins against the Lake Erie and Western Railroad Company for a horse killed by defendant’s cars. From a judgment for plaintiff in the circuit court for $70, affirming a judgment rendered before a justice of the peace, defendant appeals.

Erom Parke Circuit Court; A. P. While, Judge. Elijah L. Yau Cleave was tried on the charge of producing an abortion. Erom a judgment acquitting defendant, the State appeals on resexwed questions of law.

From Kosciusko Circuit Court; Et. 8. Biggs, Judge. Petition by Wm. C. Davisson and others for the construction of a drain. From a judgment - establishing the drain, Samson J. North, the remonstrant, appealed.

E'rom Clinton Circuit Court.; J. V. Kent, Judge. James Comer was indicted for selling liis vote, and from a judgment discharging defendant, the State appeals.

From Clay Circuit Court; 8. M. McGregor, Judge. Action by John R. Payne against the T'erre Haute and Indianapolis Railroad Company for damages on account of personal injuries sustained. From a judgment for defendant, plaintiff appeals.

<p>From Decatur Circuit Court; Douglas Morris, Judge.</p> <p>Action by Caroline C. Allen against W. M. Hamilton and others. From a judgment for defendants, plaintiff appeals.</p>

From Marion Superior Court; Vinson Garter, Judge. Action by tbe First Rational Bank of Chicago, and others, against John Reagan, assignee of the Krag-Reynolds Company, and others, in which the assignee filed a cross-coanplaint. From a judgment for plaintiffs for part of relief asked, the assignee and other defendants appeal.

<p>Chattel Mortgage. — To Secure Preexisting Debt. — Fraud.— A mortgage made to secure an antecedent debt will not be sustained against a vendor who has been induced to part with the mortgaged property by the fraud of the mortgagor, p. 680.</p> <p>Same. — To Secure Preexisting Debt. — When Valid. — A mortgage executed by a fraudulent purchaser of goods, to secure antecedent creditors, will be held valid as to such creditors who, in consideration of the mortgage, and without notice of fraud, have extended the time of their debt, or assumed any new or additional obligation. p. 681.</p> <p>Replevin. — Goods, the Sale of which Induced by Fraud. — The seller of merchandise cannot maintain an action in replevin against the buyer thereof, on the ground that the sale was induced by fraud, without first restoring or offering to restore the amount received on account of such sale. p. 683.</p>

<p>Railroads. — Use of Bight of Way by Foot-Passengers. — A user of a part of a railroad right of way by the public, as a highway for foot-passengers, where such use was neither exclusive nor adverse, would not prove an implied dedication or a prescriptive right, no matter how long continued, p. 6S5.</p> <p>Railroads. — Injury to Person on Trade. — A person injured while using a foot-patli maintained by a railroad company along its right of way, but not dedicated to the public, cannot maintain an action for an injury caused by the company’s failure to have a watchman, or its failure to operate gates or to give warning of approaching trains, since the company owes such person no duty except to refrain from wilfully injuring him. pp. 685-689.</p>

<p>From Martin Circuit Court; H. Q. Houghton, Judge.</p> <p>Action by Maude E. Peyton, administratrix of the estate of George J. Peyton, deceased, against the Southern Indiana Railway Company for the death of decedent, caused by the alleged negligence of defendant. From a judgment for plaintiff, defendant appeals.</p>

<p>From Delaware Circuit Court; G. H. Koons, Judge.</p> <p>Action by First National Bank of Worcester, Mass., against the Midland Steel Company, on note. From a judgment in favor of defendant, plaintiff appeals.</p>

From Marion Superior Court; Vinson Carter, Judge. Action by Amos C. Heltzel against the City of Indianapolis to enjoin the letting of a contract for street improvements. From a judgment for plaintiff, defendant appeals.

<p>From St. Joseph Circuit Court; Lucius Hubbard, Judge.</p> <p>Petition by Daniel W. Beal and others for public ditch, Herman F. Goppert opposed the petition. From a judgment for Beal, Goppert appeals.</p>

From Laporte Superior Court; Ii. B. Tuthill. Judge. Action by Calvert H. Defrees against Amelia Leeds and others to enforce lien for street improvements. From a judgment for plaintiff, defendants appeal.

<p>From St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Action by Maurice Peifer against Manuel M. Fisher, Mayor of City of Mishawaka, and others for writ of mandate. From a judgment for defendants, plaintiff appeals.</p>

From Laporte Superior Court; H. B. Tuthill, Judge. Action by Calvert H. Defrees against William Blinks and others to enforce a lien for street improvements. From a judgment for plaintiff, defendants appeal.

<p>From the Putnam Circuit Court; S. M. McGregor, Judge.</p> <p>Action by City of Greencastle against Daniel B. Rowland for violating a city ordinance. From a judgment for plaintiff, defendant appeals.</p>