Volume 159 — Indiana Reports

From Fountain Circuit Court; J. M. Babb, Judge. Action by Jacob Ilushaw and Margaret A. Hopton against J. Wesley Whicker to enforce the payment of a mortgage alleged to have been assumed by defendant. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under §1387u Burns 1901.

From Fulton Circuit Court; A. C. Capron, Judge. Proceedings by Daniel W. Ritter and others to open highway, wherein William Fifer files remonstrance for damages. From a judgment for petitioners, remonstrant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Judgments. — Foreign Judgment.— Collateral Attack. — Judgments of the courts of any state having jurisdiction over the subject-matter and of the parties are conclusive on the merits in the other states of the Union until reversed on appeal, or set aside and vacated in a proper proceeding by the court which rendered the judgment, and are not, therefore, open to collateral attack, p. 16.</p> <p>Same. — Action Upon Foreign Judgment. — Evidence.—Transcript.—A transcript which shows that a special appearance was first entered and a motion made “to quash the service and dismiss the action, ’ ’ which was overruled and exceptions taken, that an answer was then filed, the cause tried upon its merits, and a final judgment entered, sufficiently shows that a judge was present at the trial. pp. 18, 19.</p> <p>Same. — Foreign Judgment. — Transcript. — Presumption.—Where from the transcript of a foreign judgment, it appears that the court where the judgment was rendered had a judge, clerk, and seal, the presumption is that the court was one of general jurisdiction, and that it had jurisdiction of the subject-matter of the action and the parties thereto, p. 19.</p> <p>Appearance. — Special Appearance. — Waiver.—By the filing of an answer to the merits, a defendant waives all objections to the jurisdiction of his person, but not the right to question the ruling on appeal, pp. 19-81.</p>

From Howard Superior Court; Hiram, Brownlee, Judge. Action hy Edward L. Wilson and others against Harry Ward and others on a breach of warranty. From a judgment for defendants on demurrer to complaint, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.

From Jay Circuit Court; J. M. Smith, Judge. Action by Charles W. McLaughlin against Daniel L. Adams for commissions for sale of real estate. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Erom Hancock Circuit Court; C. G. Offutt, Judge.</p> <p>Action by Ellen B. Stockdell against the Citizens Street Railroad Company for personal injuries. Erom a judgment for plaintiff, defendant appeals.</p>

From Rush Circuit Court; D. A. Myers, Judge. Action by James R. Scott against Sarah Edgar and husband for the enforcement of á vendor’s lien. From a judgment for defendants, plaintiff’ appeals. Transferred from Appellate Court, under §1337j Burns 1901.

From St. Joseph. Circuit Court; Lucius Hubbard, Judge. Proceedings hy the St. Joseph & Elkhart Power Company to appropriate lands owned by the Indiana Power Company. From a judgment in favor of the former, the latter appeals.

Erom Grant Circuit Court; TP. H. Carroll? Special Judge. In proceedings in the construction of a drain, certain items of the account of Solomon Carter, drain construction commissioner, were disallowed upon exceptions being filed thereto by B. E. Buller and others, and the former appeals. Transferred from Appellate Court, under §1337u Burns 1901.

Erom Hancock Circuit Court; E. W. Felt, Judge. Ho all M. Clark was convicted of an assault and battery with intent to commit murder in the second degree, and he appeals.

Prom White Circuit Court; T. F. Palmer, Judge. Action by Katie Kihm against the city of Logansport for damages for personal injuries. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Clay Circuit Court; P. O. Colliver, Judge. From an interlocutory order appointing a receiver for the Chicago and Southeastern Railroad Company, on the application of Charles Kenney and others, defendant appeals.

From Monroe Circuit Court; W. M. Martin, Judge. Action by Charles Thacker against the Chicago, Indianapolis and Louisville Eailway Company for damages on account of personal injuries sustained. From a judgment for defendant on demurrer to complaint, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Marion Criminal Court; Fremont Alford, Judge. Proceeding by the State against Charles B. Rockwood and others, grand jurors, for an indirect contempt of court. From a j udgment in favor of defendants, the State appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Randolph Circuit Court; W. O. Barnard, Special Judge. Action by Marcus Hotsenpiller against the Creamery Package Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

Erom Lake Circuit Court; J. II. Grillett, Judge. Action by Louisa W. Murpbey, against John Brown, executor of the will of William C. Murphey, deceased, and others, to contest the will. Erom a judgment for defendants on demurrer to complaint, plaintiff appeals.

From Fountain Circuit Court; Jere West, Special Judge. Quo warranto by tbe State on the relation of Omar P. Warren and another against George Ogan and others to try the title to the offices of school trustees of the city of Yeedersburg. From a judgment sustaining a demurrer to the information, relators appeal.

Erom Marion Superior Court; J. M. Leathers, Judge. Action by Elizabeth Hawkins, administratrix of tbe estate of Addis Hawkins, deceased, against Volney T. Malott, as receiver of tbe Terre Haute and Indianapolis Railroad Company for damages for tbe negligent killing of decedent. Erom a judgment for plaintiff, defendant appeals.

From Mai’ion Superior Court; J, M. Leathers, Judge. Suit by Abraham Gr. Brower and others against Emanuel S. Fisher to quiet title. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Master and Servant. — Personal Injury. — Failure to Guard Dangerous Machinery. — Knowledge by Employe. — Volenti non fit Injuria. — A complaint for a personal injury .to an employe while operating a circular saw, resulting from the failure of the employer to guard the same, as required by §7087i Bums 1901, is sufficient without an averment that the plaintiff had no knowledge of the unguarded condition of the saw and the dangers resulting therefrom.</p>

From Marion Superior Court; Vinson Garter, Judge. Action by Louisa C. E. Cook against Minnie L. Buhrlage and Wilhelmina Theine upon promissory notes. From a judgment in favor of defendant Wilhelmina Theine, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Master and Servant. —Monthly Payment of Wages. —Labor Claim. —Assignment-Action by Assignee. — Under §§7056, 7057 Burns 1901, providing that a corporation shall, in the absence of a written contract to the contrary, pay its employes at least once a month, and providing a penalty of $1 a day for a violation thereof, the penalty cannot be recovered upon a demand and action by an assignee of a labor claim, pp. 167,168.</p> <p>Same. — Corporation.—Penalty for Violation of Monthly Payment Wage Law. —Special Finding. —In an action against a corporation to recover penalty for failure to make monthly settlements with employes, a special finding that “there was no contract of employment between any of the employes and the defendant’ ’ is not equivalent to a finding of facts showing that there was no written contract between the corporation and said employes as to the time of payment of wages, p. 169.</p> <p>Constitutional Law. — The constitutionality of a statute will not be passed upon if the question at issue can be passed upon otherwise. p. 170.</p>

From Hamilton Circuit Court; John F. Neal, Judge. Action by Martha Bennett, administratrix of the estate of Alfred Bennett, deceased, against Vincent Case and another for the death of decedent. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

From Vanderburgh Circuit Court; H. A. Mattison, Judge. Action by Wilbur K. Morden against the Studebaker Brothers Manufacturing Company to recover the statutory penalty for failure of defendant to release a mortgage. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Deeds. — Life Estate. — Remainder.— Construction. — Upon the death of the father, intestate, the children qu.itclaijp.ed their two-thirds interest in certain real estate to their mother for the term of her life conditioned that the mother would not convey or encumber the same, and would pay all the debts of her husband, and that at her death all of said real estate should go to the heirs of herself and husband. The mother by a writing, which was a part of the deed, and which was duly acknowledged, accepted the same and agreed to be bound by its conditions. Held, that the deed operated as a conveyance to their mother for her life of the two-thirds held by the children, and as a conveyance to them of her one-third, subject to an estate for her own life therein.</p>

<p>From Marion Superior Court; J. L. McMaster, Judge.</p> <p>Suit by Delavan. Smith and Charles E. Williams to enjoin William H. Hart, Auditor of State, from certifying an assessment to the auditor of Marion county made by the state board of tax commissioners against the Indianapolis Hews Company and also to enjoin the treasurer of Marion county from collecting the tax. From a judgment in favor of plaintiffs, defendants appeal.</p>

From Jeffersou Circuit Court; W. II. Watson, Special Judge. Exceptions by William H. Bruning to the final report of John M. Golden, special administrator of the estate of John F. Bruning, deceased. From a judgment for the administrator, the exceptant appeals. Transferred from the Appellate Court, under §1337u Burns 1901.

<p>Criminal Law. — Affidavit and Information. — Physicians.—An affidavit and information, in the form prescribed by §7323c Bums 1901, charging defendant with unlawfully practicing medicine without first having procured a license so to do, sufficiently states the nature of the accusation, although under the statute various acts may enter into the offense, pp. SIS, S14.</p> <p>Physicians. — Practicing Without License. — Evidence.—Evidence that defendant held himself out as a magnetic healer, advertised as such, and styled himself “Professor”; that he was not a graduate of any school of medicine, and had no license; that he treated a patient for a lame ankle which he diagnosed as rheumatism, the treatment consisting in holding the afflicted parts and rubbing them, and received $1 for the treatment, was sufficient to show defendant guilty of practicing medicine without a license in violation of §§7318-7323e Burns 1901. pp. SI4, SIS.</p> <p>Criminal Law. — Good and Bad Counts of Indictment. — Presumptions on Appeal. — Where there is one sufficient count in an indictment, and a general verdict of guilty is returned on which judgment is rendered, it will be presumed on appeal that the judgment was rendered on the good count, p. SIS.</p> <p>Statutes. — Amendments.—Construction.—Where an act is amended it will be construed as though the amendments as they exist had been incorporated in the original act. pp. S15, SIS.</p> <p>Constitutional Law. — Physicians.—Licenses.—Privileges and Immunities. — The privileges and immunities clause of the fourteenth amendment to the federal Constitution has no application to the denial of the right to practice medicine without first procuring a license as provided by §§7318-7323e Burns 1901. pp. 216, 217.</p> <p>Same. — Police Power. — Statutes.—-Discretion of Legislature. — While laws enacted by a state under its police power must be wholesome and reasonable, a very large measure of authority is vested in the legislative department to determine what is reasonable and wholesome, pp. 217-223.</p> <p>Physicians. — Licenses. — Constitutional Law.— Classification. —Magnetic Healing. — The law regulating the practice of medicine, §§7318-7323e Burns 1901, is a valid exercise of the police power of the State although it exempts physicians and surgeons legally qualified to practice in the state in which they reside, when in consultation with a legal practioner of this State; physicians and surgeons residing on the border of a neighboring State, and authorized to practice under the laws thereof, whose practice extends into the limits of this State; opticians; prevents magnetic healers from following their occupations, and permits the granting of licenses to practice osteopathy, pp. 223-229.</p> <p>Constitutional Law. — Statutes.—Title.—Section 19 of article 4 of the Constitution providing that “every act shall embrace but one subject and matters properly connected therewith” does not require that the title shall be an epitome of the act. It is the subject of the act, and not the matters properly connected therewith that the Constitution requires to be expressed in the title, pp. 229-231.</p>

<p>Evidence. — Books of Account. — Res Gestae. — As sawlogs were delivered to the purchaser at his sawmill, the measurements of such purchaser were entered upon a piece of smooth plank, and on the same day transcribed and entered uppn his general books of account. Held, that the entries in the books were a part of the transaction of the delivery and measurement of the logs, and were admissible in evidence to show the number of feet of sound timber.</p>

<p>Erom Tipton Circuit Court; W. W. Mount, Judge.</p> <p>Mandamus by State on tbe relation of the city of Roblesville against the Chicago and South Eastern Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

From White Circuit Court; T. F. Palmer, Judge. Action by George P. Chase against John D. Davis and others. From a judgment for plaintiff against John D. and Elizabeth Davis, and also in favor of William and Joseph Kreider on a cross-complaint against the defendants, Davis, the latter appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Erom Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Robert Patton was charged with prize-fighting. Erom a judgment sustaining his motion to quash the information, the State appéals.</p>

B. Shively, Judge. Suit by Benjamin E. Burke and others against Merritt C. Mead and others. Erom a judgment for defendants, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Municipal Corporations. — Street Improvements. — Acceptance.—Ac?ministraiive Act. — In determining whether a street improvement has been completed according to law, a town board acts in an administrative and not in a judicial capacity, p. 369.</p> <p>Same. — Street Improvements.— Work Not According to Contract. — Power of Town Trustees. — The board of trustees of a town has the power at any time before the assessment of benefits has been made by such board, under §4294 Burns 1901, against lots and parcels of ground benefited, to set aside and vacate an order requiring the town engineer to make the final estimate and report, on the ground that the improvement was not made according to the contract, p. 370.</p>

<p>Courts.. — Records.—The records of a court are subject to its own control, and when jurisdiction has attached they may not be diminished or altered without the consent of the court in which the cause is pending, excepting only where such change i's directed by some superior or appellate court authorized by law to make such order, p. 274.</p> <p>Same. — Records.— Transcript. — Mutilation.—Appeal.—Where a transcript is filed in the proper court upon appeal, and when notice is given to the appellee, if necessary, the jurisdiction of the court to which the appeal is taken is complete, and the transcript becomes a record of the court, and any addition to or diminution thereof without the leave of the court is a mutilation, p. 275.</p> <p>Constitutional Law. — Legislature no Control Over Court Records. — Extending Time for Filing Bill of Exceptions. — The act of March 11, 1901 (Acts 1901, p. 611), giving to trial courts in certain cases the power to extend the time of filing bills of exceptions, is an attempt by the legislature to exercise control over the records of the court, and is in violation of §1, article 3, of the State Constitution which provides for the exclusive character of the three departments of government, pp. 274-278.</p> <p>Same. — Extending Time for Filing Bill of Exceptions. — Power of Legislature. — The right of the prevailing party in the trial court to require that the bill of exceptions should be settled by the judge, and filed within the time then fixed by such judge, is a vested right, and the act of March 11, 1901, giving the trial courts in certain cases the power to extend the time of filing bills of exceptions, is unconstitutional, as impairing the obligation of contracts, p. 275.</p> <p>Appeal. — Mutilation of Record. — Dismissal.—The removal from the record by the appellant, of the original bill of exceptions, and the filing of a new one in accordance with the provisions of the invalid act of March 11, 1901, while a mutilation of the record, is not a suflicient cause for dismissal of the appeal where the appellant acted in good faith, p. 279.</p> <p>Trial. — Verdict.—Answers to Interrogatories. — Conflict. —Although many answers to interrogatories propounded to the jury tend to sustain the theory of the appellant, a general verdict for appellee will not be overthrown thereby, unless there is an irreconcilable conflict between such verdict and answers, p. 282.</p> <p>Instructions. — Incomplete.—Where an instruction is correct as far as it goes, but incomplete, it may be completed by another which supplies the defects, pp. 283, 284.</p> <p>Master and Servant. — Safe Appliances. — Instruction.—An instruction that “if an employe sustains injury in consequence of the failure or neglect of an employer to use reasonable care and diligence” to discharge the duty of providing safe machinery, then the employe, if injured without his fault, etc., would be entitled to recover, sufficiently charges that only reasonable care is required of an employer in providing safe machinery, p. 884.</p> <p>Instructions. — Incomplete.—An instruction which states certain conditions under which there can be no recovery is not rendered bad because it does not state all such conditions, p. 884.</p> <p>Pleading. — Complaint.—Allegation as to Notice. — Proof.—An allegation of knowledge or notice includes not only actual but constructive notice; and proof either of actual knowledge, or that the defendant by the exercise of ordinary care, might have obtained such knowledge, is admissible under the general allegation of notice. p. 885.</p>

<p>False Imprisonment. — Complaint.—A complaint in an action for false imprisonment setting forth that “defendant unlawfully imprisoned'the plaintiff and deprived him of his liberty for the space of one hour,” etc., is not demurrable on the ground that it pleads a conclusion, pp. 287, 288.</p> <p>Same. — Complaint.—A complaint for false imprisonment is sufficient without alleging that the act complained of was illegal or wrongful, or that the arrest or imprisonment was without competent authority, or malicious, or without probable cause, p. 288.</p> <p>Pleading. — Argumentative Denial. — Harmless Error. — Sustaining a demurrer to an argumentative denial is harmless error where the general denial was pleaded in another paragraph, pp. 28S, 289.</p> <p>Instruction. — When Incomplete. — Where an instruction is correct as far as it goes; but incomplete, it may be completed by another which supplies the defects, p. 293.</p> <p>False Imprisonment. — Arrest Without Warrant. — Unlawful Detention.— Liability of Officer. —Where a person arrested without a warrant is held by an officer for a longer period of time than is required, under the circumstances, without such warrant, he will have a cause of action for false imprisonment against the officer and all others by whom he has been unlawfully detained, p. 295.</p> <p>Same. — Unlawful Detention of Accused by Officer. — An officer arresting without a warrant cannot justify his action in detaining a prisoner for an unreasonable time before obtaining a warrant, upon the ground that such delay was necessary in order to investigate the case and procure evidence against the accused, p. 298.</p> <p>Trial. — Instructions.—Measure of Damages. — Two Defendants. — In an action against two defendants the failure of the court to instruct as to the measure of damages except in the event they found against one certain defendant, is not reversible error, where' the court further instructed the jury that they might find against both defendants, or in favor of either and against the other, pp. 296, 297.</p> <p>False Imprisonment. — Damages.—Wounded pride, humiliation, and mortification resulting from a public arrest are proper elements to be taken into consideration in assessing damages in an action for false imprisonment, p. 299.</p> <p>Same. — Exemplary Damages. — Malice.—Where in an action for false imprisonment the evidence discloses that the plaintiff was a boy fourteen years old, and was accused by defendant in the presence of others of being a thief, and upon denial plaintiff was called a liar, the jury may assess exemplary damages, although no malice on the part of the defendant is shown, pp. 299, 300.</p>

<p>Municipal Corporations. — Vehicle License. — Taxation.—A city ordinance imposing a tax for the use of streets by vehicles is not a tax on the vehicles as articles of property, but the effect thereof is to subject the owners of the vehicles to the payment of a tax for a license or privilege of using such vehicles upon the public streets of the city. p. 806.</p> <p>Same. — Vehicle License. — Taxation.—Police Power. — The adoption of an ordinance fixing a license upon vehicles used upon the streets of a city which neither professes nor is intended in any manner to regulate or restrict the use of vehicles, but the primary purpose of which is to impose a license tax as a revenue for the maintenance and repair of the streets, is not the exercise of a police power, pp. 306, 307.</p> <p>Same. — Vehicle License. — Taxation.—The authority of a city to enforce a vehicle license for the purpose of creating revenue for the maintenance and repair of streets must be conferred by statute, and such power must be strictly construed, p, 307.</p> <p>Same. — Vehicle License.— Taxation.— Constitutional L,aw. — Section 1, article 10, of the State Constitution, which provides for a uniform and equal rate of assessment and taxation relates to a general assessment of taxes on property according to its value, and does not apply to a tax for a license to use vehicles upon the streets of a city. p. 309.</p> <p>Municipal Corporations. — Vehicle License. — Taxation.—A city governed by the general laws of this State relating to the organization of cities, and conferring upon common councils thereof certain enumerated powers (§§3541, 3541a, 3617, 3623 Burns 1901), has power to impose a tax for a license to use vehicles upon its streets, including private vehicles, for the purpose of oreating a revenue for the maintenance and repair of the streets, pp. 307-312.</p> <p>Same. — Vehicle License. — Glassification.—An ordinance imposing a tax for a license to use vehicles upon the streets of a city is properly based upon the use to which such vehicles are devoted rather than the value of the vehicles, p. 312.</p>

<p>From "White Circuit Court; W. S. Bushnell, Special Judge.</p> <p>William Deane’ was convicted of permitting persons on a legal holiday to enter his place of business where intoxicating liquors were sold, and he appeals.</p>

From Wabash Circuit Court; U. Z. Wiley, Special J udge. Proceeding for a writ of assistance by Harry L. Miller against Louisa Gr. Emerick. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court, under §1837j Burns 1901.

<p>Appeal and Error. — Assignment of Error. — Exception.—The action of the court in sustaining the separate demurrers of two defendants to plaintiff’s complaint involved two rulings, and in order to question such rulings on appeal an exception must be taken tc each.</p>

From Jackson Circuit Court; T. B. Buskirk, Judge. Suit by the Pittsburgh, Cincinnati, Chicago and St. Louis Eailroad Company against town of Crothersville and others to enjoin the abatement of an alleged nuisance. From a decree for defendants, plaintiff appeals.

From Marion Superior Court; Vinson Carter, Judge. Action by tbe Indianapolis Water Company against Arthur Jordan and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337j, subdivision 2, Burns 1901.

From Vanderburgh Superior Court; Gr. A. Cunningham, Special Judge. Mandamus by the State on the relation of Alexander Emerson and another to compel an inspection of bank books for the purpose of taxing deposits. From a decree for plaintiffs, defendant appeals.

<p>From Allen Superior Court; J. H. Aiken, Judge.</p> <p>Action by James C. Peltier against Patrick E. Cox. From a judgment for plaintiff, defendant appeals.</p>

<p>From Jay Circuit Court; ,7. M. Smith, Judge.</p> <p>Suit by the town of Geneva against William Drew. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal. — Pleading.—Amendment.—Review of Original. — The Supreme Court will not review a ruling on an original paragraph of complaint which has been superseded by an amended complaint, p. 867.</p> <p>Same. — Bill of Exceptions. — Review.—A bill of exceptions not signed before filing, and not filed within the time allowed after term, can not be considered on appeal, p. 868.</p>

<p>From Hancock Circuit Court; G. Gr. Offut, Judge.</p> <p>Action by Josephine Batley against Citizens Street Eailroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Appeal. — Dismissal for Failure to Join Adverse Parties. — All parties to a judgment must be made parties in the assignment of errors on appeal therefrom, or the appeal will be dismissed.</p>

From Vanderburgh Circuit Court; H. A. Mattison, Judge. Proceedings supplemental to execution by Dina Sauer against Ebei’hardt P. Schenck and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Knox Circuit Court; O. H. Cobb, Judge. John E. Langdon was charged with wife desertion. A motion to quash the affidavit and information was sustained. From a judgment discharging defendant, the State appeals.

<p>Master and Servant. — Carpenter . — Safe Working Place. — Contributory Negligence. — Plaintiff, being a man of mature years, weighing 160 pounds, of extended experience as a house builder, and with good eyesight, went upon an unfinished building, and without direction or advice of his employer walked upon two by six unbridged joists, fourteen feet long, which he knew were designed only to support the laths and plaster forming the ceiling of the chamber below. A defect in one of the joists caused it to break, precipitating plaintiff to the floor below. Held, that plaintiff was guilty of contributory negligence, and could not recover for injuries sustained, pp. 383-385.</p> <p>Appeal. — Instructions.—Harmless Error. — A judgment will not be reversed for errors in the giving of instructions, when, under the facts disclosed by the record, the appellant, who was plaintiff in the trial court, could not have recovered in any event, p. 386.</p>

<p>Appeal. — Assignment of Error. — Constitutional Question. — Review—An assignment of error that a certain specified act of the legislature is unconstitutional, is improper, and presents no question for review. p. 887.</p> <p>Trial. — Rejecting Evidence.— Offer to Prove. — Exception.—In order to save an exception to a ruling of the trial court in excluding evidence, the offer to prove must be made before such ruling, p. 387.</p> <p>Appeal. — Record.—Evidence.—Special Bill of Exceptions. — A special bill of exceptions, under §642 Burns 1901, must show that the evidence embraced in the special bill was all the evidence given upon the issue to which the proffered evidence related, p. 388.</p>

From Marion Superior Court; J. L. McMaster, Judge. Suit by Delavan Smith and another against Harry B. Smith, auditor of Marion county, to enjoin defendant from placing upon the tax duplicate an alleged illegal assessment. From a decree for plaintiffs, defendant appeals.

From Marion Criminal Court; Fremont Alford, Judge. Frank M. Wright was indicted for infringement of trade-marks. From a judgment quashing the indictment and discharging defendant, the State appeals.

From'Jackson Circuit Court; T. B. Buskirk, Judge. Joseph D. Balsley was convicted of larceny, but new trial granted. From a judgment overruling a demurrer to a plea in abatement, the State appeals.

<p>From Grant Circuit Court; U. J. Paulus, Judge.</p> <p>Action by Albert H. Hinton against the Indiana Natural Gas and Oil Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Deed. — Acceptance.—A grantee received a deed from the grantor, and took it to the office of the county recorder for record, when he found that certain of the lots which it had been the intention to convey had been omitted. He paid the record fee, and asked that the lots described in the deed be transferred to him for taxation, but, without having the deed recorded, returned it for correction. Held, that there had been an acceptance of the deed. pp. 408, 409.</p> <p>Same. — Acceptance.—Waiver of Prior Executory Agreements. — When a deed has been delivered and accepted, it is deemed, in the absence of fraud or such mistake as equity will relieve against, a complete relinquishment of conflicting reservations in any prior executory contract relative to the conveyance, p. 410.</p> <p>Same. — Acceptance.—Failure of Title. — In the absence of fraud or relievable mistake, the grantee who accepts a deed without covenants cannot successfully defend against a failure of title. pp. 410, 411-</p> <p>Vendos and Puechasee. — -Acceptance of Deed. — Mistake.—Laches.— Where a deed is accepted as security for the payment of a note, and it is afterward learned that the deed did not include all the land intended, the grantee affirms the contract thus consummated if he does not’ with reasonable promptitude reconvey or offer to reconvey the real estate, and tender back the note. p. 411. -</p>

<p>From Franklin Circuit Court; F. S. Swift, Judge.</p> <p>John S. Johns and another were convicted of bunko-steering, and they appeal.</p>

From Hamilton Circuit Court; J. F. Neal, Judge. Proceeding by Cassius Haworth and others for the construction of a free gravel road. From a judgment for the petitioners, Henry H. Gunn and others, remonstrators, appeal.

From Marion Criminal Court; Fremont Alford, Judge. Frank M. ’Wright was indicted for refilling labeled bottles. From a judgment quashing the indictment and discharging defendant, the State appeals.

From Allen Circuit Court; J. W. Adair, Special Judge. Action between Maumee school township and the school town of Shirley City for the possession of school property. From a judgment for the town, the township appeals.

From Laporte Superior Court; J. O. Richter, Special Judge. Action by William Satkoski against Franceska Andrysiak and others on a promissory note. From a judgment for plaintiff, defendant Franceska Andrysiak appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Marion Criminal Court; Fremont Alford, Judge. Moses Barnett was indicted for purchasing labeled bottles with intent to defraud the owner. From a judgment quashing the indictment the State appeals.

From Marion Superior Court; Vinson Garter, Judge. Suit by the State on the relation of W. A. Ketcham, Attorney-General, against the Terre Haute and Indianapolis Railroad Company for an accounting. From a judgment for plaintiff, defendant appeals.

<p>From Elkhart Circuit Court; H. D. Wilson, Judge.</p> <p>Action by Catherine Butt against the Lake Shore and Michigan Southern Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Action by James II. Poe against Nathan G. Dixon. Erom a judgment for plaintiff, defendant appeals.</p>

From Elkhart Circuit Court; J. 8. Drake, Special Judge. Application for license to sell liquor by Adam Roomer-shine. Remonstrance by Barney Uline and others. From a judgment refusing the license, the applicant appeals.

<p>From Huntington Circuit Court; J. C. Branyan, Judge.</p> <p>"William Cary was prosecuted for perjury. From a judgment sustaining a motion to quash the affidavit and information, the State appeals.</p>

From Tipton Circuit. Court; L. J. Kirkpatrick, Special Judge. Mandamus by the State on the relation of John O. Behymer against Elijah Perry, county auditor, to compel the issuance of a warrant. From a judgment for defendant, ¡Dlaintiff appeals.

From Daviess Circuit Court; H. Q. Houghton, Judge. Mandamus by State on the relation of Jobn W. Greenwood, trustee of Washington township, Daviess county, against the Baltimore & Ohio Southwestern Railroad Company, to compel the latter to construct a highway crossing. From a judgment awarding the writ, respondent appeals.

<p>From Marion Superior Court; Vinson Carter, Judge.</p> <p>William J. Hogan was convicted of violating a city ordinance imposing a vehicle tax, and appeals.</p>

<p>Drains. — Dismissal of Proceedings by County Commissioners. — Appeal.— No appeal will lie to the circuit court from a judgment of dismissal rendered by the board of county commissioners upon a negative report of reviewers in a proceeding to establish a ditch, under §5655 Bums 1901.</p>

<p>From Howard Superior Court; Hiram Brownlee, Judge.</p> <p>Action by Tamma Shelton against Phelan Wolf on a promissory note, and to foreclose a mortgage From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Jasper Circuit Court; S. P. Thompson, Judge.</p> <p>Suit by MeElwaine-Richards Company against Benjamin J. Gifford and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Shelby Circuit Court; Douglass Morris, Judge.</p> <p>Action by Julia F. Bernhamer and another against John H. Brown, administrator of the estate of Charles Bernhamer, deceased. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Appeal. — Motion to Strike Out. — Review:—A motion to strike out part of a complaint will not be reviewed on appeal, where it has not been made a part of the record by bill of exceptions or order of court, pp. 64%, 543.</p> <p>Same. — Motion to Strike Out.- — Harmless Error. — The ruling of a trial court denying a motion to strike out parts of a pleading, even if WTong, does not constitute reversible error, p. 543.</p> <p>Same. — Joint Assignment of Error. — A joint assignment that the court erred in overruling a demurrer to a complaint of, several paragraphs is not available if any paragraph thereof is good. p. 543.</p> <p>Same.. — Bill of Exceptions. — Evidence not in Record. — Where there was an attempt to incorporate the evidence in the record, under section six of the act of 1899 (Acts 1899, p. 384), which section pending the appeal, was held unconstitntional, and there had heon no substantial compliance with the provisions of the previous act of 1897 (Acts 1897, p. 244), the evidence is not in the record, p: 544.</p> <p>Tendee. — Pending Suit to Foreclose Lien. — Attorney’s Fees. — Interest.—• Where, on the day before the trial of a suit to foreclose a materialman’s lien, the defendant tenders and pays into court the amount of the claim, including accrued costs, less attorney’s foes and interest, such tender will not serve to exempt defendant from liability for attorney’s fees and interest, pp. 544-549.</p>

Erom Blackford Circuit Court; E. C. Vaughn, Judge. Action by the International Building and Loan Association against Jonas P. Radebaugh and others.to foreclose a mortgage. Erom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

Erom Marion Circuit Court; H. C. Allen, J udge. Suit by Margaret Bruce against Isaac Russell and another to foreclose a mortgage. Erom a judgment for plaintiff, defendant Isaac Russell appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Erom Tipton Circuit Court; W. W. Mount, Judge.</p> <p>Action by John Wall against the McElwaine-Richards Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Allen Superior Court; W. J. Vesey, Judge.</p> <p>Suit by Mary C. Bronson and husband against Charles H. Dudgeon for the extension of a private way. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Huntington Circuit Court; J. G. Branyan, Judge.</p> <p>Suit by William A. Berry against Marquis D. L. Martin and others to enjoin the sale of real estate under a mechanic’s lien judgment. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901</p>

From Hancock Circuit Court; J. E. McCullough, Special Judge. Action by the Greenfield Lumber and Ice Company against Clint Parker and others on a bond given to secure the performance of a contract to construct a schoolhouse. From a judgment for defendants, plaiutiff appeals. Transferred from Appellate Court, under §1837u Burns 1901.

<p>From Owen Circuit Court; J. R. Miller, Special Judge.</p> <p>Suit by Jobn Spangler and others to enjoin the board of commissioners of Owen county from issuing gravel-road bonds, and levying and collecting a tax for the payment thereof. From a judgment for plaintiffs, defendant appeals.</p>

<p>From Sullivan Circuit Court; O, B. Harris, Judge.</p> <p>From a judgment of the circuit court reversing the action of the board of commissioners in refusing to grant to Alonzo Mattox a license to sell intoxicating liquors, John Ragle, remonstrator, appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Rrom Greene Circuit Court; A. G. Gavins, Special Judge.</p> <p>Action by the State against Charles Hindman and another on a recognizance bond. Frotó a judgment for defendants, the State appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Contracts. — Complaint for Breach. — Pleading.—Performance of Condition Precedent. — Pa. pleading the performance of the conditions precedent in a contract, it is sufficient, under §370 R. S. 1881, to allege generally that the party “performed all the conditions on his part; ’ ’ but if a party does not avail himself of said statute, by making the general allegation thereby authorized, he must allege the performance of all conditions precedent with the particularity required by the rules of the common law.</p>

<p>From Shelby Circuit Court; Douglas Morris, Judge.</p> <p>Myra Freese was convicted of murder in the second degree, and appeals.</p>

<p>Erom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>The Central Trust Company filed report as receiver of-the estate of James T. Polk, to which Grafton Johnson filed exceptions. Erom a judgment discharging receiver, Johnson appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

Erom Elkhart Circuit Court; H. D. Wilson, Judge, Action by Reid, Murdoch & Co. and others against the Rappanee Canning Company and others for damages for breach of an alleged contract, and to set aside, as fraudulent, a mortgage or deed of trust. Erom a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court, finder subdivision two of §1337j Burns 1901.

<p>From Huntington Circuit Court; J. W. Adair, Special Judge.</p> <p>Suit by Tbomas H. Hague and others against the First National Bank of Huntington. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From Hancock Circuit Court; JE. W. Felt, Judge. Suit by the Kirkpatrick Construction Company against ■ the Central Electric Company and others to set aside a judgment rendered against plaintiff by a justice of the peace. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

Erom Johnson Circuit Court; W. J. Buckingham, Judge Action by Samuel Brown, administrator of the estate of Elorence O. McClain, deceased, against the Metropolitan Life Insurance Company and Susan Davis on an insurance policy. The company paid the amount of insurance into court and was discharged. Defendant Susan Davis filed a cross-complaint claiming the policy as assignee. Erom a judgment against her on demurrer to cross-complaint, she appeals.

Erom Marion Superior Court; J. L. McMaster, Judge. Action by Harry H. Temperly against tbe Indianapolis Abattoir Company for damages from an explosion of natural gas. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1837u Burns 1901.

Prom Knox Circuit Court; O. II. Cobb, Judge. Prom a judgment dismissing an appeal from the order of the board of commissioners establishing a highway, Henry Bobson and others appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Appeal and Error. — Joint Assignment of Errors. — A joint assignment of error based upon the action of the court in overruling a demurrer to a complaint is not available where the complaint was good as to some of the appellants joining in the assignment of errors.</p>

<p>Erom Daviess Circuit Court; D. J. JBJefron, Judge. '</p> <p>Action by William E. Swaggerty against the Island Coal Company for personal injuries. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Insurance. — Payment of Premium. — Forfeiture.—Complaint.—Where a life insurance policy provided that failure to pay the premium on a certain day should work a forfeiture of the policy, an allegation in the complaint, in an action on the policy, that the, policy was not delivered, and did not take effect, until five days after its date is not sufficient to show a change in the contract as to time of payment of premiums and avoid a forfeiture of the policy for failure to pay the premium at the time stipulated therein.</p>

<p>New Trial. — Carnes.—Appeal and JStror. — Specifications in amotion for a new trial in a civil action “that the finding and judgment of the court is contrary to the evidence” and “that the finding and judgment of the court is contrary to the law” present no question on appeal, since the statute recognizes no such reasons for a new trial.</p>

<p>Trial. — Instructions.—Harmless Error. — Carriers.—A judgment against a carrier for personal injuries will not be reversed because of an instruction that defendant was liable for the slightest ‘ ‘neglect resulting in an injury,” where the jury was clearly informed in other instructions that there could be no recovery unless plaintiff had proved by a preponderance of the evidence that’the injuries sued for were the direct and proximate result of defendant’s negligence specified in the complaint, p. 679.</p> <p>Same. — Instructions.—Harmless Error. — An instruction relating to an alleged condition which the jury found, in answer to interrogatories, did not exist, was harmless, though erroneous, pp. 6S1, 682.</p> <p>Same. — Instructions.— Harmless Error. — No error was committed in refusing an instruction which was irrelevant to the facts as found by the jury. p. 688.</p> <p>Negligence. — Street Railroads. — Passenger Attempting to Alight While Car is in Motion. — Whether a passenger is guilty of negligence in attempting to get off a moving street car, not running at a dangerous rate of speed, is a question for the jury, to he determined from the facts, under proper instructions by the court, pp. 683, 684.</p> <p>Appeal and Error. — Exceptions.—Court Questioning Witnesses. — The action of the court in interrogating appellant's witnesses will not be reviewed on appeal, where no objections or exceptions were reserved, p. 684-</p>

<p>From Hamilton Circuit Court; J. F. Neal, Judge.</p> <p>Habeas corpus by Tyler Crutbers against Evan Bray. From a judgment for defendant, plaintiff appeals.</p>

<p>From Jackson Circuit Court; T. B. Buskirk, Judge.</p> <p>Action by Charles Adams against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Marion Circuit Court; H. C. Allen, Judge.</p> <p>Mandamus by State on relation of Martha Lewis and others against Harry B. Smith, auditor. From a judgment for relators,</p> <p>respondent appeals.</p>

From Jay Circuit Court; J. M. Smith „Judge. Action by International Building and Loan Association against James W. Racer and others to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under subdivision 2 of §1337j Bums 1901.

From Henry Circuit Court; TV. O. Barnard, Judge. Suit by the National Building, Loan and Savings Association against Elizabeth and Seth C. Symons to foreclose a. mortgage. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under § 1337u Burns 1901.