Volume 160 — Indiana Reports

<p>Mortgage. — Failure of Mortgagee to Satisfy. — Penalty.—Attorney’s Fees. —By reason of an error in the recording of a mortgage, a note secured thereby, for $1,380, was erroneously described as calling for $1,308. A purchaser of the real estate, relying upon the record, assumed the payment of the mortgage as a part of the consideration. When the note became due, the purchaser of the real estate paid $1,308, and upon the refusal o'f the mortgagee to release the mortgage, brought suit to' compel an entry of satisfaction, and to recover penalty and attorney’s fees provided for by §1105 Bums 1894. Held, that the purchaser was entitled to a release of the mortgage, but could not recover penalty and attorney’s fees; since, under the statute, they were recoverable only upon the payment “of the debt or obligation” which “the mortgage was made to secure.”</p>

<p>Erom Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by Edward Patton against Annie E. Taylor aiid others. Erom a judgment for plaintiff, Annie E. Taylor appeals.</p>

From Miami Circuit Court; J. T. Cox, Judge. Action by William E. Mowbray against the board of commissioners of Miami county and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Erom Boone Circuit Court; B. S. Higgins, Judge.</p> <p>Action "by Enoch Leeman against the Pennsylvania Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Prom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Suit by Pred Laakrnann and others against William T. Pritchard. Prom a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Trial. — Verdict.—Interrogatories to Jury. — Conflict.—A general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such facts are shown to be so repugnant and contradictory to the general verdict that both can not be true under any conceivable state of facts provable under the issues. pp. 26, 27.</p> <p>Same. — Interrogatories.—Motion for Judgment.— General Verdict. — Contributory ^Negligence. — Presumption.—In an- action against a street car company for injuries sustained by plaintiff while attempting to alight from a car, the evidence showed that plaintiff held to the running-board of the car and was dragged thereby and injured. There was a general verdict for plaintiff, and in answer to an interrogatory as to whether plaintiff could have released his hold on the car and have avoided being injured, the jury answered “No evidence.” Held, that the trial court, on motion by defendant for judgment notwithstanding the general verdict, could not presume that plaintiff could have released his hold by the exercise of ordinary care and was therefore guilty of contributory negligence, pp. 27, 28.</p> <p>Negligence. — Alighting from Street Car. — Where an aged and crippled passenger was thrown down by the premature starting of a street car from which he was attempting to alight, and in the fall caught hold of the car and was dragged and thereby injured, his act in holding to the car did not, under the circumstances, constitute contributory negligence, p. 28.</p> <p>Continuance. — Absent Witness. — Admissions.—Defendant asked a continuance to enable him to procure the testimony of an absent witness. To avoid a postponement of the trial, plaintiff admitted that if present the witness would testify to the material facts set forth in defendant’s affidavit in support of his motion. Held, that plaintiff’s admissions did not embrace statements of conclusions set forth in the affidavit, p. 29.</p> <p>Witnesses. — leading Questions. — Discretion of Court. — While as a general rule leading and suggestive questions should be disallowed, yet, to permit leading questions will not constitute reversible error unless it very clearly appears that there was such abuse of discretion as amounts to substantial injustice, p. SO.</p> <p>Damages. — Evidence.—Complaint of Pain. — In an action for personal •injuries, evidence that plaintiff complained of pain to one not a physician, and at a time other than the time of the injury, is admissible. p. SO.</p> <p>Trial. — Instructions.—The propriety of an instruction is to be determined not by whether it embodies a correct statement of the law upon a given state of facts, but whether it correctly states the law relevant to the issuable facts given in evidencte on the trial, p. 81.</p> <p>Same. — Instruction not Relevant to Issues. — Injury of Street Car Passenger While Alighting from Car. — Where, in an action, against a street car company for personal injuries sustained by plaintiff while attempting to alight from a car, the only act of negligence complained of was the premature starting of the car, an instruction, that the defendant should be found guilty of negligence if its employes in charge of the car failed to assist plaintiff to alight, was erroneous, pp. SO, 32.</p>

<p>Municipal Corporations. — Property Held for Public Use. — Sale by City. — Property held and used by a city for public purposes is held in trust for the inhabitants, and can not be sold or disposed of unless the city is specially authorized hy the legislature to make such sale or disposition and thereby determine the trust, p. 89.</p> <p>Municipal Corporations. — Water- Works. — Electric Light Plant.- — Property for Public Use. — Water-works and an electric light plant constructed or purchased by the city and maintained by it for the extinguishment of fires, for domestic purposes, for lighting streets, and for use in the houses of the inhabitants of the city are to he regarded as property devoted to public use. pp. 42-45.</p>

Erom Superior Court of Marion County; Vinson Garter, Judge. Mandamus by the State, on the relation of the city of Indianapolis, against the Indianapolis Union Railway Company to compel the elevation of tracks. Erom a judgment sustaining a demurrer to the alternative writ, relator appeals.

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Action by Henry J. Adams against William J. Adams. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From Huntington Circuit Court; J. C. JBranyan, Judge. Suit by Catharine Schaefer against David A. Purviance and others for partition. From a judgment in favor of defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

From Grant Superior Court; Hiram Brownlee, Judge. Action by Morris Blumenthal and another against Addie L. Tibbits. From a judgment sustaining .a demurrer to the complaint, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Easements. — Grant.—Where a grant is made, whatever is necessary or essential to the enjoyment of the grant is also granted, p. 78.</p> <p>Mines and Minerals. — Rights of Lessee. — A grant of the right to the coal under the surface of certain real estate carries with it as a necessary incident the right not only to penetrate the surface of the soil for coal, but also to use such means and processes for mining and removing the coal from the premises as may be reasonably necessary, p. 79.</p> <p>Same. — Lease.—Right to Construct Railroad Switch to Mine. — A mining lease granting to the lessee the right to enter upon the lands described for the purpose of mining coal, and of conducting and operating to any extent he may deem advisable, but not to hold possession of the land “for any other purpose, except one acre, more or less, for operating the mines, and for dwellings,” gives by implication the right to construct a railroad switch for the purpose of transporting the coal, and otherwise operating the mine. pp. 79, 80.</p> <p>Contract. — Mining Lease. — Mutuality.—A coal mining lease which provides that the mine shall be opened within one year from the date of the lease, and shall not be closed down for more than a year at a time; that the lessor shall receive 500 bushels of coal each year and a certain sum of money for each ton of coal mined, is enforceable by the lessor, and, therefore, not invalid for want of mutuality, pp. 80, 81.</p> <p>Injunction. — To Prevent Lessor from Interfering with Operation of Mine. — An injunction will lie to prevent the interference by the lessor with the construction of a railroad switch to a coal mine. pp. 81, 82.</p>

From the Superior Court of Marion County; Vinson Carter, Judge. • Intervening petition by Theodore C. Whitcomb against William H. Stringer as receiver of the Eureka Savings & Loan Association. From a judgment in favor of defendant, plaintiff appeals. Appealed from the Appellate Court, under clause 3 of §1337j Burns 1901.

<p>From Randolph Circuit Court; W. Q. Barnard, Judge.</p> <p>Action by Charles Gutheil against James P. Goodrich and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Randolph. Circuit Court; A. O. Marsh, Judge.</p> <p>Suit by the city of Muncie against the Muncie Natural Gas Company. From a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Allen County; J. H. Aiken, Judge. Action by Norman H. Chamberlain against Cornelia Boseker, executrix of the estate of Christian Boseker, deceased, and another. .From a judgment for plaintiff, defendants appeal. Transferred from ; Appellate Court, under §1337u Burns 1901.

From Steuben Circuit Court; P. V. Hoffman, Special Judge. Suit by Elizabeth M. Richardson against Asbury Teal and others to quiet title. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Appeal and Error. — Evidence.—Record.—Where appellant, who on June 23 was given sixty days to file his general bill of exceptions, filed the reporter’s transcript of the evidence which was not certified by the judge until September 25, and was refiled October 20, the evidence is not properly in the record, p. 124.</p> <p>Same. — Instructions.—Record.—Evidence.—Where a special bill of exceptions containing instructions given and refused does not show that it contained all of the instructions given, and the evidence is not in the record, the instructions can not be considered, p. 124.</p> <p>Same.— Trial. — Misconduct of Jury. — New Trial. — Record.—Alleged misconduct of the jury brought to the attention of the trial court by affidavits filed in support of a motion for a new trial can not be considered on appeal where the affidavits áre not made a part of the record, p. 134.</p>

<p>Street Railroads. — Injury to Passenger While Attempting to Alight.— Instruction. — Where the only negligence charged in an action against a* street railway company was the sudden starting of the car while the plaintiff was on the running-board in the act of getting off, an instruction that plaintiff after she left the car assumed all risk in stepping or walking over the street in the condition it was then in was properly refused. pp.'126, 127.</p> <p>Evidence. — Res Gestae. — Declarations.—Utterances and exclamations of participants, or of persons acting in concert, made immediately before or after, or in the execution of an act, which go to illustrate the character of the act, are usually admissible in evidence on the ground that they axe a part of the res gestae; but the utterance or declaration of a person who sustains no relation to the transaction is not admissible, pp. 127, 128.</p> <p>Same. — Street Railway Accident. — Res Gestae. — Declaration of Passenger. —In an action against a street railway company for injuries sustained by a passenger and alleged to have been caused by the sudden starting of the car, it was error to permit another passenger who saw the accident to testify that she stated to the conductor at the time that if he had stopped the car the accident would not have happened, pp. 127-129.</p>

<p>Trial. — Witnesses. —Evidence. — Objection. —Appeal and Error. — The ruling of the court in sustaining an objection to a question to a witness is not reviewable on appeal, where no statement was made as to what the witness would testify to in answer to the question, pp. 180, 181.</p> <p>Appeal and Error. — Instructions.—Error.—In order to make instructions a part of the r&cord by special exceptions written on the margin of each, under §542 Burns 1901, they must be filed after the exceptions are reserved, pp. 131, 132.</p> <p>Same. — Evidence.—Conflict.—The fact that there is no conflict in the evidence on one or more essential facts furnishes no ground for the reversal of a judgment in favor of defendant, where there is a sharp conflict as to certain other facts which plaintifl: was required to establish before he was entitled to a verdict, p. 132.</p>

Erom Whitley Circuit Court; J. W. Adair, Judge. Action by Melvin E. Reynolds and others against William C. Rastetter for goods sold and delivered. Erom a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Prom Hamilton Circuit Court; J. F. Neal, Judge.</p> <p>Suit by Henry R. Smith and others against American Crystal Monument Company and others. Prom a judgment for defendants, plaintiffs appealed to Appellate Court, where the judgment of trial court was affirmed (29 Ind. App. 308). Appealed to Supreme Court, under clause 3 of §1337j Burns 1901.</p>

<p>Trial. — Verdict.—Answers to Interrogatories. — A motion for judgment on the answers to the interrogatories notwithstanding the general verdict should be refused, unless the antagonism between the verdict and the answers is such, on the face of the record, as to be beyond the possibility of being removed by any evidence legitimately admissible under the issues, p. 148.</p> <p>Railroads. — Crossings.—Contributory Negligence. — The rule requiring a traveler approaching a railroad crossing to look and listen can not be treated as an arbitrary standard of care, to be inflexibly applied by the courts in all cases, and the ruling of the court in rendering • judgment for the defendant on answers to interrogatories, notwithstanding the general verdict, in an action against a railroad company for the death of plaintiff’s decedent, on the ground that the interrogatories failed to show that decedent who was crossing a side-track on which detached freight-cars were standing, in order to board defendant’s passenger-train, did not look in the direction of an engine standing on the side-track which moved the dead cars and killed decedent, was erroneous, pp. 148-158.</p>

<p>From Hendricks Circuit Court; B. W. McBride, Special Judge.</p> <p>■ Suit by Mary A. Osborn against Douglas Hall and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

Erom Monroe Circuit Court; J. C. Robinson, Special Judge. Action by Lawson E. Dearmin, by next friend, against tbe Clear Creek Stone Company for personal injuries. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337j Burns 1901.

<p>Physicians. — Malpractice.—Complaint.—Contributory Negligence. —The nature of an action for the negligence of a surgeon in treating an injury is such as to bring it within the provisions of the act of February 17, 1899 (Acts 1899, p. 58), and it is, therefore, not necessary for the plaintiff to allege and prove want of contributory negligence, p. 172.</p> <p>Evidence. — Physical Examination in Presence of Jury. — In an action by a woman against a physician for negligence in treating an injury to her knee, it is not error for the court to refuse to permit another physician who was testifying as a witness for defendant to examine plaintiff’s knee in the presence of the jury, since it would require a quasi public exposure of her person; and the fact that plaintiff subsequently offered to exhibit her knee to the jury did not operate to make the prior ruling improper, p. 173.</p> <p>Witnesses. —Physicians. —Privileged Communication. —Malpractice. —■ In an action against a surgeon for malpractice, a physician who had treated plaintiff after defendant’s employment had terminated is incompetent to testify over plaintiff’s objection, pp. 173, 174.</p> <p>Witnesses. — Malpractice.—Plaintiff as Witness. — Privileged Communications. — In an action against a surgeon for negligence in treating plaintiff’s knee, tlie plaintiff can not be required to testify as to the manner of treatment by a physician employed after defendant’s employment had terminated, pp. 174, 175.</p> <p>Physicians.- — Malpractice.—Instruction.—License.—In an action against a surgeon for malpractice, an instruction as to the degree of skill required of a physician is not erroneous for failure to state that the physician must have a license to practice, p. 175.</p> <p>Trial. — Incomplete Instruction. — Harmless Error. — The giving of an incomplete instruction is not reversible' error, where the omission was fully covered by other instructions given, p. 175.</p> <p>Same. — Contradictory Evidence. — Instruction.—Where a witness has made contradictory statements as to material matters in issue, it is proper to instruct the jury that they are the exclusive judges of the credibility of witnesses, and that, in determining the weight to be given to the testimony of such witness, they might take into consideration certain specified matters, and that it was for them to determine what weight they should give to the testimony. pp. 175, 176.</p>

<p>Pleading. — Answer.—Where the complaint is insufficient, it is immaterial whether the answer is good or bad, since .there is no office for an answer to perform until the plaintiff has stated a cause of action against the defendant, p. 180.</p> <p>Trusts. — Suit to Enforce. — Implied Trust. — Where the trust relied upon in a complaint is not alleged to be in writing, it will be presumed that it was in parol, and arises by implication from the facts averred, p. 180.</p> <p>Trusts. — Implied Trust. — Constructive Trust. — Complaint.—The surviving husband of one of decedent’s children instituted proceedings against the other children to recover his share of certain real estate. The complaint averred that prior to his death decedent had purchased certain lands and had them deeded, without consideration, to defendants to be held in trust for him; that afterwards he traded the lands for other described lands, «and, without consideration, had the deed of conveyance made to defendants,'leaving the same a secret trust for himself and his heirs. The complaint did not contain allegations that decedent had furnished the purchase money, and that the deed had been placed in grantees’ names without their father’s consent; nor was it alleged that defendants purchased the land in violation of a trust, nor that defendants had received the conveyance by agreement, without fraudulent intent. Held, that, the complaint did not state facts showing an implied trust, within the meaning of §§3396, 3398 Bums 1901. Held, also, that the complaint does not state facts amounting to a constructive trust, pp. 180; 181.</p> <p>Appeal. — Insufficient Evidence. — Had Answer. — Where the plaintiff fails to make out a case in the trial court, he can not complain on appeal that defendant’s answer was insufficient, pp. 181, 182.</p> <p>Trusts. — Money Derived from Sale of Trust Land. — Where there is no enforceable trust in land, an enforceable trust will not arise in the money derived from the sale of the land. p. 182.</p> <p>Evidence. — Will as Evidence. — In a suit by an heir, where it is . sought to show that certain lands held by the other heirs was held in trust for all the heirs of testator, the will of such testator, which tended to support defendants’ contention that there was no trust, is admissible in evidence, p. 182.</p>

<p>Officers. — Quo Warranto. — The relator in a quo warranto proceeding to remove an incumbent of an office and obtain possession of the office himself, must recover upon the strength of his own right or title thereto and not upon the weakness or infirmities of the respondent’s right or title, p. 188.</p> <p>Same. — Quo Warranto. — An information in the nature of a quo warranto seeking the removal of an incumbent of a county office and the possession of the office by relator which fails to show that relator has taken the oath of office and given bond as required by law is fatally defective, p. 189.</p>

From Superior Court of Allen County; 8. L. Morris, Special Judge. Action by Jennie Mason against, the Pennsylvania Company and Rachael Mason on a benefit certificate. The company paid the amount of the certificate into court and was discharged, and thereafter judgment was rendered in favor of plaintiff, from which Rachael Mason appeals. Transferred from Appellate Court, under clause 2, §1337j Burns 1901.

From Rush Circuit Court; L. J. Kirkpatrick, Special Judge. Suit by the Sulzer-Vogt Machine Company against the Rushville Water Company and others for the enforcement of a mechanic’s lien. From a judgment for defendants, plaintiff appeals. ' Transferred from Appellate Court, under clause 2, §1337j Burns 1901.

<p>From Delaware Circuit Court; J. M. Smith, Special Judge.</p> <p>Suit by William L. Garrard and another against Jacob Frankel. From a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From. Putnam Circuit Court; P. O. Colliver, Judge. Injunction proceeding by Edward McG. Walls and others against Frank L. Landes and another. From an interlocutory order granting a temporary injunction, defendants appeal.

From DeKalb Circuit Court; M D. Hartman, Judge. Action by Kirk A. Smith and others against Reuben A. Borden on a promissory note. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under §1837u Burns 1901.

<p>From Delaware Circuit Court; J. G. Beffier, Judge.</p> <p>Action by the Heat, Light & Power Company against the Palmer Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Erom Monroe Circuit Court; Newton Grooke, Special Judge.</p> <p>Action by John D. Morgan, administrator of the estate of Albert O. Cass, deceased, against the Consolidated Stone Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Pleading. — Condition Precedent. — An allegation in a complaint in an action on an insurance policy “that plaintiff fully performed all the obligations required of her’ ’ is a substantial compliance with the provision of §373 Burns 1901, that “in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege, generally, that the party performed all the conditions on his part.” p. 250.</p> <p>Appeal and Error. — Briefs.—Rules of Court. — The sufficiency of the evidence to sustain the finding of fact and law will not be deoided where the appellant fails to comply with clause five of rule twenty-two of the Supreme Court which requires that the statement in the brief “shall contain a condensed recital of the evidence in a narrative form, so as to present the substance clearly and concisely.” pp. 250, 251.</p>

<p>Appeal and Error. — Harmless Error. — Pleading.—Overruling a demurrer to a bad answer is harmless, where all the matters pleaded were provable under the general denial, p. 253.</p> <p>Trial. — Directing Verdict. — No error was committed in directing a verdict for defendant in an action by a trustee in bankruptcy to recover a sum of money alleged to have been received by defendant as preferential in violation of §60, subd. b of the bankruptcy law of 1898, 30 Stat. 562, where all the evidence concerning the payment was given by the bankrupt, and was in substance that witness who was master of exchequer of defendant lodge when he discovered his insolvent condition informed his wife of his having used the lodge’s money and that she mortgaged her separate property and gave the husband the proceeds of the loan which he deposited in bank in his name as master of exchequer of the lodge and afterward delivered his check on the bank account to the trustees of the lodge, which account also included a deposit consisting of dues received from members of the lodge. pp. 254-258.</p> <p>Evidence. — Conversation.—In an action by a trustee in bankruptcy to recover a sum of money alleged to have been received by defendant as preferential, evidence as to a conversation had by the trustee with the bankrupt and with the bankrupt’s wife long after the payment made to defendant was properly rejected, neither the bankrupt nor his wife being a party to the suit. pp. 258, 259.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Action by Marshall P. Hollingsworth, administrator of the estate of ¥m, A. Francis, deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1887o Burns 1901.

From Cass Circuit Court; h>. II. Chase, Judge. Action by Lillie O’Brien, by next friend, against the Indiana Natural Gas & Oil Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Appeal and Error. — Record of Pleadings Transmitted on Change of Venue. — While it is the duty of the clerk of the court from which an appeal is taken to copy in the transcript a complaint transmitted to such court on change of venue, a copy of .the complaint set out in a copy of the transcript made on change of venue will he considered on appeal, where it is properly authenticated by the certificate of the clerk of the court from which the appeal is taken, pp. 281-288.</p> <p>Master and Servant. — Personal Injuries. — Pleading.—Vice-Principal. —A complaint alleged that plaintiff while in the employ of defendant and engaged in unloading and hauling stone on defendant’s train was injured while assisting in stretching a wire cable used in unloading stone; that the work was done under the orders and direction of M., the manager of the train and work, who was also defendant’s foreman and its vice-principal. Held, that the complaint when stripped of conclusions failed to show that M. was more than a mere fellow servant, pp. 283-287.</p> <p>Same. — Liability for Negligence of Foreman. — The master may delegate the duties of a foreman with no responsibility to his other servants further than to use due care not to retain an incompetent or negligent foreman, pp. 287, 288.</p> <p>Same. — Employer’s Liability Act. — Pleading.—A case is not stated within the second subdivision of the employer’s liability act (§7083 Burns 1901) where it is not shown that the injured employe was subject to the orders and directions of the person whose negligence caused the injury, p. 289.</p> <p>Master and Servant. — Negligence.—Pleading.—A complaint alleged that plaintiff was assisting in stretching a cable on a moving train with other employes and that he was injured by reason of the negligence of the foreman in giving the order to carry the cable over the space between the cars, without directing a servant to stand next to the space to keep the cable from falling. Held, that the complaint failed to show a causal connection between the negligence charged and the injury, pp. 289, 290.</p> <p>Same. — Negligence.—Fellow Servant. — Evidence.—In .an action against a railroad company for an injury to a servant caused by the alleged negligence of defendant’s foreman, the evidence showed that plaintiff with twelve or fifteen other employes were stretching a wire cable on a train of flat cars, disentangling the same; that a loop of the cable was handed by one of the employes across the space between the cars to a man on the other car and in some manner the cable was allowed to drop and became caught in the car wheels or cross-ties and injured plaintiff. Held, to show that the cable was dropped by the intervening negligence of one or more of the men in passing it across the space between the cars, rather than that it fell because no one was standing at the intersection as alleged in the complaint, pp. 290-292.</p>

From Johnson Circuit Court; Vinson Carter, Special Judge. Grafton Johnson filed his final report as receiver of the property of James T. Polk and the latter filed exceptions thereto. From an order of court sustaining a motion to strike out the exceptions, James T. Polk appeals. Appealed from Appellate Court, under clause 3, §1337j Burns 1901.

<p>Criminal Law. — Assault and Battery With Intent to Commit Rape. — Evidence. — In a prosecution for assault and battery with intent to commit rape, the prosecuting witness testified that as she was going to her home in the night-time she saw two men standing in a stairway between two saloons; that one of them followed her, demanded to know where she was going, caught hold of her and began to pull her, saying, “Come on with me;” that she resisted, and attempted to give an alarm, and he choked her, and struck her, and let her go. A witness testified that he -was standing at the place indicated by the prosecuting witness, on the night in question, with defendant, and saw a woman pass; that defendant followed her, using such language as to indicate his intent to have carnal intercourse with her, forcibly and against her will if necessary. The prosecuting witness shortly after the assault and while she was in a nervous condition accused another as her assailant, but afterward identified defendant. Held, that the evidence was sufficient to sustain a conviction for an assault and battery with the felonious intent to commit rape, pp. 302-307.</p> <p>Same. — Appeal and Error. — Evidence.—The Supreme Court is not warranted in disturbing a judgment in a criminal prosecution unless there is such an absence of evidence in respect to some fact or element material to the crime charged as to present a question of law, which, under the circumstances, must be decided in favor of the convicted party, p. 307.</p> <p>Same. — Evidence.—Assault and Battery With Intent to Commit Rape. — No error was committed in permitting a witness to testify in a prosecution for assault with intent to commit rape as to whether the prosecuting witness directly thereafter made complaint of the assault and battery perpetrated upon her. pp. 307, 308.</p> <p>Same. — Instruction.—Assault and Battery With Intent to Commit Rape.— Where in a prosecution for assault and battery with intent to commit rape it appeared that the prosecuting witness shortly after the assault identified a person other than dfefendant as the guilty one, it was not error for the court to instruct the jury that in the event they found that she had identified such other person as the guilty one, they had the right to take into consideration her condition, surroundings, and all the facts and circumstances shown to exist at the time she made such identification, pp. 308, 309.</p> <p>Trial. — Presence of Bailiff in Jury Room. — Criminal Law. — Appeal and Error. — The action of the court in overruling a motion for a new trial on the ground that the bailiff was present in the jury room and conversed with the jurors while they were deliberating on a verdict will not be reversed on appeal, where such question was presented to the lower court, tried and determined upon evidence pro and con adversely to appellant, pp. 309, 310.</p> <p>Constitutional Law. — Indeterminate Sentence Law.— Criminal Law.— The indeterminate sentence law is constitutional, p. 310.</p>

<p>Ebaud. — Contracts.—Statute of Frauds. — Representations made by a banker and business man, well known to plaintiff, that stock in a proposed corporation to which certain patent rights were to be transferred would be more valuable than any bank-stock, and that defendant proposed to join plaintiff in the purchase of the patent rights and the organization of a company, made for the purpose of inducing plaintiff to invest in such corporation, when in truth defendant was investing no money, but had a secret arrangement with the promoter whereby he was to receive his stock and a certain sum of money for inducing others to take stock in such concern are not within the statute of frauds (§6634 Bums 1901), and the contract thereby induced is voidable, pp. 812-318.</p> <p>Payment. — Fraud.—Ratification.—Where plaintiff executed his note for certain stock in a company, and paid same before discovering the fraud practiced upon him in inducing him to purchase the stock, such payment will not operate as a ratification of the transaction. p. 818.</p>

<p>Master and Servant. — Negligence.—Assumption of Risk. — Complaint. —A complaint for personal injuries caused by the attachments to • a bucket used in hoisting dirt from a mining shaft in which plaintiff was at work giving away is not insufficient for want of facts on the ground that the defect was obvious and open to plaintiff, where it was alleged that the place where plaintiff was at work was so dark that he could not see the attachments, that he did not know what constituted a proper attachment, and that it was not his business to investigate, pp. 820-325.</p> <p>Same. — Evidence.—No error was committed in permitting a witness who worked in a mine in which plaintiff was injured to testify that he was unable to determine in the darkness whether a certain attachment to a bucket used in hoisting dirt, which gave way and injured plaintiff, was defective without making an actual examination thereof, p. 825.</p> <p>Evidence. — Personal Injuries. — Where in the trial of an action for personal injuries to plaintiff, while working in a mining shaft, caused by the alleged defective construction of a ring, used in attaching a bucket to a rope for hoisting dirt, defendant on cross-examination asked a witness for plaintiff the size, shape, and capacity of another bucket used in the mine, no error was committed in permitting plaintiff to show on reexamination of such witness, that the ring on the other bucket was welded, while the ring on the bucket which caused the injury was an open ring, the ends thereof overlapping, p. 326.</p> <p>Same. — Personal Injuries. — Remedying Defective Appliance After Accident. — Where in an action for personal injuries to plaintiff, while working in a mining shaft, caused by the alleged defective construction of a ring with which a bucket was attached to a rope, witnesses who saw the ring at different times testified differently US to its condition, evidence was properly introduced showing that after the accident the ring was changed by hammering its overlapping ends together, pp. 326, 327.</p> <p>Master and Servant. — Assumption of Risk. — Safety of Appliances. — , Relative Duties. — Though a servant assumes all risks of which he knew, or of which, by the exercise of ordinary diligence, he could have known, and where the hazard is alike open to the observation of both, the master is not liable to the servant for injury resulting therefrom, yet the servant is not bound to search for defects, or make a critical inspection of the appliances that are provided for his use, but may rely upon the master’s proper performance of his duty to furnish reasonably safe and proper appliances and properly to inspect the same, unless the defects are such as to be obvious to the servant while giving proper attention to the duties of his employment, pp. 327, 328.</p>

Erom Wabash Circuit Court; H. B. Shively, Judge. Suit by Mai’quis'L. Engleman to enjoin the Wabash Railroad Company from entering upon and inclosing a strip of land with a fence, Erom a decree in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Constitutional Law. — Minimum, Wage Law. — Work and Labor. — The minimum wage law (§§7065a, 7055b Bums 1901), fixing a minimum rate of wages to be paid unskilled labor employed upon any public work of the State, counties, cities, and towns, is unconstitutional, being violative of §1 of the fourteenth amendment of the federal Constitution and also §§1 and 23 of article 1 of the state Constitution.</p>

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Action by the International Text-Book Company against Horace L. Weissinger and another. From a judgment for defendant, plaintiff appeals.</p>

<p>Erom St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Action by "William J. Kuhn against the American Mutual Life Insurance Company and others. Erom a judgment in favor of defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

Erom Howard Circuit Court; W. W. Mount, Judge. Suit by William W. Sefton against the board of commissioners of Howard county and others, to enjoin the enforcement of a highway assessment. Erom a judgment for defendants, plaintiff appeals.

<p>Master and Servant. — Employers' Liability Act. — Railroads.—Locomotive Engineers. — A cause of action exists under the fourth subdivision of the employers’ liability act (§7083 Burns 1901) for the injury of a locomotive engineer caused by the negligence of another locomotive engineer in the common service, pp. 861, 862.</p> <p>Compromise and Settlement. — Executors and Administrators. — Damages. — Death by Wrongful Act. — Railroad Relief Association. — Where a widow who was administratrix of her husband’s estate and beneficiary in a railroad relief fund certificate upon the life of her husband, which provided that the acceptance of benefits from the relief fund should operate as a release of. all claims for damages against the railroad company, accepted the amount of the death benefit certificate and signed a receipt as widow and beneficiary, also as administratrix, in full satisfaction of all claims and demands against the relief association and railroad company on account of the death of the deceased, such receipt pleaded in answer to an action by the administratrix against the railroad company for the death of decedent constituted prima facie a bar, not only to the claim of the widow, but also to a recovery for the benefit of the children of the deceased, pp. 862-868.</p> <p>Same. — Executors and Administrators. — Damages.—Death by Wrongful Act. — The provisions of §§2454, 2456 Burns 1901, relative to the collection and compounding of debts by an administrator do not apply to the compromise of a demand made by an administrator for the death of his decedent by wrongful act, and the administrator in such case may compromise the claim without order of court, pp. 368-37//..</p>

<p>Erom Harrison Circuit Court; E. A. Ely, Special Judge.</p> <p>Proceeding by Charles E. Shaffer to obtain a license to sell intoxicating liquors in which Herman J. Stern and others filed a remonstrance. Erom a judgment sustaining the remonstrance, applicant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From Decatur Circuit Court; F. T. Ford, Judge. Action by George McKee against the city of Greens-burg. From a judgment for defendant on demurrer to complaint, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>From Delaware Circuit Court; J. Q-. Leffler, Judge. •</p> <p>Action by the State against the Republic Iron & Steel Company. From a judgment for -plaintiff, defendant appeals.</p>

<p>Erom the Superior Court of Vanderburgh County; J. H. Foster, Judge.</p> <p>Action by Caroline C. Pitcher against the Germania Eire Insurance Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Divorce. — Residence of Plaintiff. — Witnesses.—Qualification.—A divorce decree will be reversed on appeal where there was no evidence that the- witnesses as to the residence of plaintiff were resident freeholders and householders of the State as required by §1043 Bums 1901.</p>

Erom Superior Court of Tippecanoe County; J. M. Babb, Special Judge. Suit by Thomas Day against Thomas C. Nottingham and Thomas C. Nottingham, administrator of the estate of Julia Nottingham, deceased, and another, to set aside a decree for divorce. Erom a decree for defendants, plaintiff appeals. Transferred from Appellate Court, under §1387u Burns 1901.

<p>Appeal and Error. — Court Rules. — Briefs.— Waiver. — Under rules twenty-one and twenty-two of the Supreme Court requiring an appellant to file his brief within sixty days after the submission of the cause and state therein the errors relied upon for reversal, points not stated therein are waived and cannot be presented in a brief subsequently filed purporting to contain a citation of additional authorities, p. 427.</p> <p>Same. — Constitutional Question.- — A constitutional question will not be decided, where the cause can properly be disposed of otherwise. p. 4%1-</p> <p>MAster and Servant. — Employers’ Liability Act.— Orders Given by President of Corporation. — In an action by an engineer for personal injuries, the evidence showed that the president of defendant corporation, in the absence of the superintendent, had ordered the engineer to light the gas in the furnaces, and while he was complying with such order the president negligently opened a large valve which caused an explosion, injuring plaintiff. Held, that the evidence - authorized the finding that plaintiff was bound to conform to the orders of the president, pp. 427-431.</p> <p>Same. — Employers’ Liability Act. — Negligence of President. — Where an employe was injured while complying with an order given him by the president of the corporation by the negligent act of the president in turning a gas valve, the corporation is not relieved from liability by reason of the fact that it was not a part of the duty of the president to operate the valve or to assist in the operation of the machinery in the plant, .pp. 429-431.</p> <p>Same. — Negligence.—Imputed Knowledge of Master. — A complaint for personal injuries to an employe while lighting the gas under a boiler caused by the alleged negligence of the president, to whose orders the employe was conforming when injured, alleged that the president turned on the gas from a large main knowing the valve connecting the same with the furnace he had ordered plaintiff to light was open. The jury found that the president was informed by another employe before he turned on the gas that the valve was closed, and that he believed it was closed when he turned the gas on. Held, that such finding was not necessarily inconsistent with the charge of knowledge "in the complaint; since if the president turned on the gas without the degree of information that an ordinary prudent man would have regarded as sufficient to warrant such action, the law imputes knowledge to him that the valve was open. pp. 431, 432.</p> <p>Pleading. — Amendment to Conform to Proof. — Presumption.—Where the variance between the allegations of the complaint and the proof is not a matter of substance, the complaint, by reason of the requirement of §670 Burns 1901, must be deemed to have been so amended as to make the allegations conform to the proof, pp. 432, 433.</p> <p>Trial. — Offer to Prove in Presence of Jury. — Misconduct of Counsel. — No available error exists because of an offer to prove an incompetent matter, made in the presence of the jury, where the offer was refused and the jury admonished by the court not to consider it. pp. 433, 434.</p> <p>Same. — Misconduct of Counsel. — Exception.—Appeal and Error. — Where no objection was made to alleged misconduct of counsel in argument to the jury, it is too late to raise the question for the first time on appeal, p. 434.</p> <p>Appeal and Error. — Harmless Emr. — Trial.—Misconduct of Counsel. —Alleged misconduct of counsel in suggesting to the jury, in argument, that certain interrogatories should be answered by the words “No evidence,” was harmless where affirmative answers to such interrogatories would not have created an irreconcilable conflict between the answers to interrogatories and the general verdict, pp. 434, 435.</p>

<p>From Monroe Circuit Court; Newton Crooke, Special Judge.</p> <p>Action by Walter A. Wilson against tbe Perry, Matthews-Buskirk Stone Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Erom Knox Circuit Court; O. II. Cobb, Judge.</p> <p>Action by Allen Harbin against tbe Baltimore & Ohio Southwestern Railroad Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Suit by Louis Schneck against William T. Strieker and others. From a judgment for plaintiff, Isaac N. Hay-maker, administrator of the estate of Phoebe. S. Strieker, deceased, appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Appeal and Eeeoe. — Change of Venue. — Superior Courts. — Jurisdiction of Case on Change of Venue. — Where a cause was sent to the superior court of an adjoining' county on change of venue, and the plaintiff filed in such court an amended complaint and a reply to defendant’s answer, without objection to the jurisdiction of the court, and proceeded to trial, it is too late for him to question the jurisdiction of the court for the first time on appeal, pp. 449, 450.</p> <p>Same.- — Statute Repealed. — The act of 1873 (Acts 1873, p. 194) by which the original bill of exceptions containing the evidence could be embraced in the transcript without copying the same, Was repealed by §1477 Burns 1901. p. 451,</p> <p>Appeal. — Record.—Evidence.—Where the clerk took the part of the original bill of exceptions containing the evidence and incorporated it in the transcript without copying, and copied the remainder of the bill containing appellant’s challenge to the array, the instructions to the jury, and the judge’s certificate to the bill, the evidence is not properly in the record, under §§661, 662 Burns 1901, requiring all original papers, documents, or entries to be copied into the transcript, nor under §638a Burns 1901, which provides that the original bill containing the evidence may be embraced in the transcript instead of copying it therein, p. 451.</p> <p>Statutes. — Amendment.—Reference to Title. — Constitutional Law. — The act of 1891 (Acts 1891, p. 376) amending §359 of the act of 1881 (Acts 1881, p. 240) concerning struck juries, the same being §525 R. S. 1881, refers to the title of the act to be amended as “An act concerning trial by jury,” giving the number of the section of the act sought to be amended, and the section number thereof in the revised statutes of 1881. The title to the act of which the section sought to be amended is a part is ‘ 'An act concerning proceedings in civil cases.” Held, that the act of 1891 is unconstitutional and void, under §21 of article 4 of the Jonstitution, which provides: “No act shall ever be revised or amended by mere reference to the title, but the act revised or section amended shall be set forth and published at full length. ’ ’</p> <p>Same. — Amendment.—Reference to Title.— Constitutional Law. — Where the act or section to be amended is identified in the manner required by the Constitution, and it is not certain what act or section was amended, the court will resort to means other than the title to determine what act or section was amended; but if the act or section is not identified in the manner required by the Constitution, the court will not resort to such other means of identification, although the act intended would thereby be ascertained beyond question.</p> <p>Appeal and Error. — Struck Jury. — Where under a demand for a struck jury it appears that the clerk of the court took forty of the names in the list made and filed by the jury commissioners from which a jury was struck, it must be held on appeal, nothing to the contrary being shown, that the clerk adopted said forty nam’es as his own selection, under §525 R. S. 1881.</p> <p>Same. — Instructions.—When Evidence is Not in Record. — Where the evidence is not in the record, the instructions given by the court will not be held erroneous if correct under any evidence admissible under the issues in the cause.</p>

<p>From Perry Circuit Court; K. M. Swan, Judge.</p> <p>Suit by Adolph Zuelly and others against Martin F. Casper and others. From a judgment for defendants on demurrer to complaint, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Erom Wayne Circuit Court; J. W. Headington, Special Judge.</p> <p>Joseph Seifert was convicted of producing a criminal abortion resulting in the death of tbe woman, and appeals.</p>

From Greene Circuit Court; O. B. Harris, Judge. Mandamus by the State on the relation of Matthew Kelly against John D. Morgan, sheriff, to compel defendant to set apart to him as exempt from sale on execution certain personal property. From a judgment for defendant, plaintiff appeals.

<p>Municipal Corporations. — Ordinances.—The act of 1899 (Acts 1899, p. 125) does not affect the powers' of common councils to pass ordinances, nor the duties directed of city officers with respect to the enrolling, attesting, and signing of the same, except to invest the mayor with the right of veto. p. 485.</p> <p>Same. — Ordinances.—The provisions of the ac.t of 1899 (Acts 1899, p. 125) as to the enrollment, attestation, and approval by the mayor of a city ordinance are merely directory, and the appointment of officers under an ordinance is not invalid because the appointment was made before the ordinance was enrolled, attested, and signed by the clerk as directed by said act. pp. 484,485.</p> <p>Same. — Ordinances.—Passage.—Parliamentary Law. — In a proceeding to remove members of a city council appointed under an ordinance increasing the number of city wards, on the ground that the ordinance was passed on first reading without a suspension of the rules, an allegation in the complaint, that §18, article 4, of the state Constitution, which requires that every bill shall be read by sections on three several days, unless the three several readings are dispensed with by a two-thirds vote “is a general rule of parliamentary law, ” will be regarded as a conclusion of the pleader, in the absence of an averment that the council had adopted it as one of its governing rules, pp. 488, 489.</p> <p>Same. — Ordinances.—Passage.—Parliamentary Law. — Where the rules of order of the common council of a city provided that the general rules of parliamentary law, so far as the same were applicable, should be considered the rules of the common council, the common council has the right to determine what rules are general and their applicability to the business before them, and the court can not say as a matter of law that it was incumbent upon the council to read a certain ordinance on three several days before its final passage or that a single reading was insufficient, p. 48$,</p>

<p>From Perry Circuit Court; E. M. Swan, Judge.</p> <p>Action by State on the relation of Adolph Zuelly and others against Martin F. Casper and others. From a judgment for defendants, the relators appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

Erom Tippecanoe Circuit Court; R. P. Re Hart, Judge. Suit by Charles V. McAdams against Joseph M. Rabb, Judge of the Warren Circuit Court, to enjoin the latter from convening court on certain days. Erom a judgment for plaintiff, defendant appeals.

<p>Erom the Laporte Circuit Court; J". G. Richter, Judge.</p> <p>Suit by William H. Lewis against the Knickerbocker Ice Company. - Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1387u Burns 1901.</p>

<p>From "Wayne Circuit Court; TI. G. Fox, Judge.</p> <p>Suit by Milton L. Hibberd against Irene W. Trask and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>From St. Joseph Circuit Court; W. A. Funk, Judge.</p> <p>Petition by Mary E. Custer and another to vacate a sale of real estate made by Christian Holler, administrator of the .estate of Sarah Ranstead, deceased. From the action of the court in sustaining a motion to quash the petition, petitioners appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Criminal Law. — Indictment.—Petit Larceny. — Description of Property Stolen. — An indictment for petit larceny describing the property stolen as “five dollars of the personal goods and chattels of,” etc., is insufficient at common law, and is had under §1819 Burns 1901, for failure to show that the property stolen consisted of five dollars in money.</p>

<p>Trial. — Defective General or Special Verdict. — Remedy.—Where a special verdict or special finding is defective, because there is not a finding of all the matters in issue, or a finding of facts to exist which were not proved, the remedy is by motion for a new trial; but this rule is not applicable to general verdicts, p. 518.</p> <p>Same. — Defective Verdict. — Venire de Novo. — Where, on an issue as to the execution of a note by two defendants, there was a general verdict for one of the defendants, such verdict was defective as not being responsive to the whole case, and a veniqfc de novo should be awarded as to both defendants, pp. 516-521.</p>

From the Superior Court of Marion County; J. L. McMaster, Judge. Habeas corpus proceeding by Henry W. Bullock against William Robertson and others to obtain possession of a child. From a judgment in favor of defendants, plaintiff appeals.

From DeKalb Circuit Court; E. A. Bratton, Special Judge. Suit by William J. Guy and wife against William Liberenz and wife to foreclose a mortgage. . From a judgment for defendants, plaintiffs appeal. Transferred from Appellate Court, under clause 2, §1387j Burns 1901.

From Laporte Circuit Court; J. G. Richter, Judge. Petition of William E. Cook and others to establish a ditch. Erom an order striking out the motion of Pleasant civil township to set aside the assessment as to the township, and for leave to file remonstrance, the township appeals.

<p>Erom Oáss Circuit Court; G. A. Gamble, Judge.</p> <p>"William Jones was convicted of forgery, and appeals.</p>

<p>Prom Marion Criminal Court; Fremont Alford, Judge.</p> <p>Orie Coppenhaver was convicted of murder in the first degree, and appeals.</p>

Erom Grant Circuit Court; II. J. Paulus, Judge. Edward Given was convicted for permitting the escape of natural gas in violation of the act of March 4, 1893, as amended by the act of February 22, 1899, and he appeals.

From the Superior Court of Marion County; J. L. McMaster, Judge. Action by tbe Marion Bond Company against the Mexican Coffee & Rubber Company and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Master and Servant. — Wages.—Monthly Payment. — Penalty.—Attorney’s Fees. — Complaint.—In an action by an employe to recover the penalty and attorney’s fees as provided by §§7056, 7057 Burns 1901, for failure of the employer to make full settlement with employes once a month; in the absence of a written contract to the contrary, it must be alleged and proved that there was no such written contract between the parties.</p>

Erom Booné Circuit Court; B. S. Higgins, Judge. Suit by Irvin E. E. Tborne and others against Erank Cosand and another. Erom a judgment for defendants, ' plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Husband and Wife. — Action by Married Woman. — Pleading.—Answer. —In an action by a married woman on a note given to her by her husband and another, if there exists any reason on account of coverture or otherwise why such person who had joined her husband in the execution of the note should not perform his agreement, such reason must be set up in an answer to be available as a defense. An answer of no consideration is insufficient to raise the issue, pp. 572, 573.</p> <p>Trial. — Instruction.—Weight of Evidence. — Invading Jury’s Province.— An instruction “That when witnesses are otherwise equally creditable, and then- testimony otherwise entitled to equal weight, a greater weight and credit should be given to those whose means of information were superior, and also to those who swear affirmatively to a fact, rather than to those who swear negatively, or to a want of knowledge, or to a want of recollection, ’ ’ is erroneous, as being an invasion of the province of the jury. p. 574-</p>

<p>Erom Hendricks Circuit Court; T. J. Gofer, Judge.</p> <p>Charles Hampton was convicted of murder in the second degree, and appeals.</p>

<p>Erom Daviess Circuit Court; H. Q. Houghton, Judge.</p> <p>Action by tbe State on the relation of Elmer E. Hastings against John Downey and others. Erom a judgment in favor of relator, defendants appeal.</p>

<p>Trial. — Verdict.—Answers to Interrogatories. — Conflict. — The general verdict determines all issues in favor of the party recovering the same, and the verdict will stand as against a motion for judgment on answers to interrogatories unless the answers are in irreeoneilable conflict therewith, p. 588,</p> <p>Trial.— General Verdict. — Interrogatories to Jury. — Presumptions.—All reasonable presumptions will be indulged in support of the general verdict, and against answers to interrogatories, p. 589.</p> <p>Same. — Verdict.—Answers to Interrogatories. — Conflict.—The findings of the jury in answer to interrogatories override the general verdict only when both can not stand, the conflict being such as to be beyond the possibility of being reconciled by any state of facts provable under the issues, p. 589.</p> <p>Same. — Injury to Brakeman. — Dangerous Nearness of Switch Target to Track. — Verdict.—Interrogatories.—Conflict.—In an action against a railroad company by a brakeman for injuries sustained by him by being struck by a switch target while he was attempting to get on the cab of an engine, the complaint alleged that the cause of the injury was the negligence of the defendant in placing the switch target dangerously near the track. Held, that, as against a general verdict for plaintiff, it will not be presumed that the defendant was not guilty as charged, where the answers to interrogatories to the jury did not expressly so find. pp. 589, 590.</p> <p>Master and Servant. — Personal Injuries. — Knowledge of Danger.— Assumption of Sisk. — The mere fact, that a brakeman knew that a certain switch target was improperly located too near the track, will not prevent a recovery for personal injuries sustained thereby, unless it is further shown that he knew and appreciated the dangers thereof, and that he had sufficient time and opportunity for making objections, pp. 590, 591.</p>

From Knox Circuit Court; O. H. Cobb, Judge. ■ Proceeding by Jobn Royse and others for the construction of a ditch and levee. The Evansville & Terre Haute Railroad Company and others filed a motion to dismiss the proceeding; and upon the overruling of the motion the case was appealed. From the action of the circuit court dismissing the proceeding, petitioners appeal.

<p>From Superior Court of Madison County; II. C. By an, Judge.</p> <p>Action by Elizabeth Fleming against the city of Anderson. -From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From DeKalb Circuit Court; E. D. Hartman, Judge. Action by tbe' State on tbe relation of the board of commissioners of DeKalb county against Frank P. Seiler. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under §1337o Burns 1901.

<p>Erom Madison Circuit Court; J. F. McClure, Judge.</p> <p>Claim by Lutesia Pence against tbe estate of Jobn H. Stanley, deceased. Erom a judgment for claimant, estate appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Superior Court of Marion County; Vinson Carter, Judge.</p> <p>Action by Indiana Trust Company as executor of tbe will of Christian Koepper against Susie A. Finitzer. From a j udgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Erom the Superior Court of Madison County; II. G. Byan, Judge.</p> <p>Action by William R. Morris against the Crystal Ice Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under §1362 Burns 1901.</p>

Prom Jasper Circuit Court; S. P. Thompson, Judge. Petition by Benjamin J. Gifford to review by writ of certiorari the proceedings of the board of commissioners in a gravel road proceeding. Prom an order of court denying the petition, petitioner appeals.

<p>From Wells Circuit Court; E. G. Vaughn, Judge.</p> <p>Eichard Starr was convicted of an assault and battery with intent to commit manslaughter, and he appeals.</p>

From Allen Circuit Court; J. H. Aiken, Special Judge. Action by the State on the relation of Jacob Wyatt against Albert L. Bagby and others. From a judgment for defendants, relator appeals. Transferred from Appellate Court, under §1337h Burns 1901.

From Laporte Superior Court; H. B. Tuthill, Judge. Action by William H. Donly against John Baut and another on promissory notes. From a judgment for plaintiff, defendant J ohn Baut appeals. Transferred from Appellate Court, under §18S7u Burns 1901.

<p>Criminal Law. — Verdict.—Failure to Find Age of Defendant. — Indeterminate Sentence Law. — The absence of a finding in a verdict of conviction of felony as to the age of the defendant' as provided by §1906b Burns 1901, will not vitiate the verdict, and the court had the right to assume in assessing the punishment that the defendant was not of an age to entitle him to he confined in the reformatory instead of the state prison.</p>

<p>Railkoads. — Enforcement of Judgment. — Summoning Agent to Answer as to Funds in His Hands. — A suit for the enforcement of a judgment against a railroad company under §834a Burns 1901 is in the nature of a proceeding in garnishment, and where no writ was issued against the agent, and he had not answered as to funds in his hands, or as to the amount that would probably come into his hands, there was no res on which to base a judgment ordering such agent to pay into court a certain amount monthly, until the judgment should be paid, out of the funds coming into his hands as such agent.</p>

<p>Appeal and Error. — Special Finding. — Silence of Finding. — The silence of the special finding will be considered on appeal as equivalent, to an express finding against the appellant on all material facts which it was obliged to prove, pp. 692, 693.</p> <p>Mortgages. — Failure to Record. — Good as Against General Creditors.— Fraud. — In the absence of express fraud, the failure of a mortgagee to record a mortgage within the time fixed by the statute will not, as against the general creditors of the mortgagor, either prior or subsequent, render it invalid, pp. 693-695.</p> <p>Fraudulent Conveyance. — Failure to Record Deed. — The mere fact that a deed executed by a husband to his wife to secure a debt to the wife was withheld from record by the latter to preserve the husband’s credit, she knowing that her husband was engaged in a hazardous financial business, will not render the deed invalid as against subsequent unsecured creditors who extended credit to the husband on the faith of his supposed ownership of the property, no dishonesty or fraud on the part of the wife being shown to exist, pp. 694, 695.</p> <p>Same. — Failure to Record Deed. — Mortgages.—The fact that a deed executed by a husband to his wife to secure a debt due the wife was purposely kept off the record, with a fraudulent intent, would not vitiate a subsequent mortgage executed by the husband, to his wife in good faith, and upon a valuable consideration, although the new mortgage was intended to secure the debt described in the instrument which was never recorded, pp. 695-697.</p> <p>Mortgages. — Foreclosure.—Decree.—In a suit to foreclose a mortgage in which defendant’s wife was joined as an encumbrancer, a provision in the decree that in case the property was purchased by the wife she should have the right to credit her mortgage indebtedness on the purchase price after paying in a sum sufficient to discharge in full the prior liens was not improper, pp. 697-699.</p> <p>Same. — Foreclosure.—Decree.—Inchoate Interest of Wife. — A foreclosure decree directing the sale of the undivided two-thirds of the realty in the first instance and reserving the remainder for defendant’s wife as and for her inchoate interest in the real estate was proper, pp. 697-699.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by Edward Patton against Joanna M. Lane and others. From a decree for plaintiff, Joanna M. Lane appeals.</p>

<p>From Adams Circuit Court; D. D. Heller, Judge.</p> <p>Suit by the Union Trust Company against Eliza J. Peterson and others. From a decree for plaintiff, Eliza J. Peterson appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>From Hamilton Circuit Court; J. F. Neal, Judge.</p> <p>Petition by Thomas Sherman and others for a drain. From a judgment for petitioners, remonstrators appeal.</p>

<p>From Huntington Circuit Oourt; C. D. Landis, Special Judge,</p> <p>Action by the Huntington Oounty Loan & Sayings Association against Simon T. Oast and others. From a judgment for defendants, plaintiff appeals.</p>