Volume 161 — Indiana Reports

<p>Master and Servant. — Personal Injuries. — Complaint.—Knowledge of Danger. — A complaint by an employe for personal injuries -winch discloses a want of knowledge or notice on the part of the employe of the defects or danger to which the injury complained of is attributed is sufficient without 'an avermént that the employe had no means or opportunity of ascertaining or discovering such defects or danger, pp. 6, 7.</p> <p>Appeal and Error. — Harmless Error. — If a verdict for plaintiff in an action for personal injuries can be upheld upon the first paragraph of the complaint, defendant can not be said to have been injured because the jury also found in favor of plaintiff on the second paragraph, and alleged errors affecting only a recovery upon the latter paragraph would be harmless, pp. 7, 8.</p> <p>Negligence. — Master and Servant. — Railroads.—In an action by a freight brakeman for personal injuries caused by the alleged negligence of defendant in maintaining its tracks in such close proximity to each other and in leaving a car loaded with lumber standing on one of its tracks which struck plaintiff as he passed on a car in the line of his duty, the negligence of defendant was properly submitted to the jury, and a verdict for plaintiff will not. be set. aside where there was evidence in support of it. pp. 9-13..</p> <p>Master and Servant. — Assumption of Risk. — A yard switchman, in the absence of knowledge to the contrary, is not in duty bound to go upon a search and ascertain by measurements or otherwise whether the tracks were so close together as to render them unsafe for the operation of cars thereover; since he had the right, unless admonished to the contrary, to assume that the tracks were a reasonably safe distance from each other, and to act upon that assumption, pp. 13, If.</p> <p>Railroads. — Booh of Rules as Evidence. — The rules adopted by a railroad company for the management and control of its business, when they tend to sustain any issuable fact in a case on trial, are competent evidence either for or against the railroad company. pp. If, 15.</p>

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Action by Peyton E. Ballard against Susan A. Camplin and others. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under clause 2 of §1337j Burns 1901.</p>

<p>From Parke Circuit Court; A. F. White, Judge.</p> <p>Appeal by the Evansville & Terre Haute Railroad Company and the Farmers Loan & Trust Company from a judgment of the circuit court ,in a proceeding by the city of Terre Haute to condemn and appropriate lands for the opening of a street.</p>

<p>Criminal Law. — Judgment on Plea of Guilty. — New Trial. — A motion for a new trial is ineffectual in a case where judgment has been rendered upon a plea of guilty, p. 87.</p> <p>New Trial. — Affidavits Taken in Foreign State. — Authenticity.—Affidavits taken in a foreign state, in support of a motion for a now trial, will not receive faith and credit in the courts of this State unless authenticated in accordance with the requirements of §§483, 1865 Burns 1901. p. 88. ■</p> <p>Homicide. — Murder.—Plea of Guilty. — Punishment.—Power of Jury.— Where a defendant has pleaded guilty to the charge of murder committed while in the act of robbery, the jury are the exclusive judges as to whether the punishment shall be death or imprisonment for life, and their decision must stand unless it is manifest that they exceeded their powers, p. 41.</p> <p>Same. — Murder.—Plea of Guilty. — Insanity of Pefendant. — New Trial.— Where a defendant, charged with murder committed while in the act of robbery, pleaded guilty, and a jury found him guilty and assessed the death penalty, a new trial will not be granted on the ground of newly discovered evidence as to defendant’s insanity, where the motion for a new trial shows nothing more than probable insanity six or eight months before the date of the crime. pp. 48, 43.</p>

<p>Municipal Corporations. — Debt Limit. — Constitutional Law. — Schools. —Interest-bearing notes executed by the school city of a municipal corporation for an indebtedness incurred in the purchase of necessary grounds and the erection thereon of public school buildings within and for such school city, the civil city not having in any manner authorized the execution of such notes, or in any way to have been instrumental in contracting such indebtedness, can not be taken into consideration in determining the constitutional limit of the civil city’s indebtedness, pp. 48, 49.</p> <p>Appeal and Error. — Change of Venue. — Presumption.—Where a case is appealed from a court other than the one in which it originated, it will be presumed on appeal, in the absence of any showing, that it was properly venued to such court, p. 53.</p> <p>Municipal Oorporations. — Extension of Street. — Change of Governing Act. — Terre Haute City Charter. — Where a city under the general laws of the State governing cities had instituted'proceedings for the extension of a street, and conducted such proceedings through the various steps required by statute to the approval of the common council confirming the report of the city commissioners and the damages therein awarded, and, pending an appeal therefrom the act of 1899 (Acts 1899, p. 270) governing such city became effective, the city attorney, under the provision of said act, had authority to take up and carry forward such proceedings, pp. 49-55.</p> <p>Same. — Judgments.—Loans.—Terre Haute City Chnrter. — A judgment ■ obtained against a city on appeal from an award made by the city commissioners in a proceeding for the extension of a street, is a valid and binding obligation for which the city is authorized, under §30 of the act of 1899 (Acts 1899, p. 270), to borrow money to be applied in the payment and satisfaction thereof, pp. 49-55. Injunction. — Act Already Committed. — Injunction will not lie to enjoin an act which has been committed, p. 55.</p>

Erom Delaware Circuit Court; J. G. Leffler, Judge. Suit by Henry M. Marquell against Anna E. St. Clair and others for partition. Erom a judgment in favor of plaintiff, defendants Anna E. St. Clair and husband appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>From Shelby Circuit Court; Douglas Morris, Judge.</p> <p>Action by Elizabeth A. Young against Samuel F. Montgomery. From a judgment for defendant, plaintiff appeals.</p>

From Clark Circuit Court; J. K. Marsh, Judge. Action by John Tevis against Louis Hammersmith and others. From a judgment for defendants on demurrer to complaint, plaintiff appealed to the Appellate Court, where the judgment was reversed (31 Ind. App. 281). Appealed, to Supreme Court, under clause 3, §1337j Burns 1901.

<p>Erom Lake Circuit Court; J. H. Gillett, Judge.</p> <p>Injunction by the Lake Shore & Michigan Southern Railway Company against the town of Whiting and others. Erom a judgment for defendants, plaintiff* appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Negligence. — Complaint.—In an action against a street railway company for damages for personal injuries, an allegation in tlie complaint that the injuries were caused solely by the fault, carelessness, and negligence of the defendant and its employes is not a mere recital of a fact, but is a direct averment thereof, and is sufficient to disclose that the injury sustained was the direct result of the negligence imputed to the defendant, p. 85.</p> <p>Same. — Complaint. — In an action against a street railway company for damages for personal injuries, a complaint which alleges that plaintiff’s injuries were caused “solely by the fault, carelessness and negligence of the defendant and its servants” avers negligence sufficiently to withstand a demurrer, p. 85.</p> <p>’Street Railroads. — Boarding Crowded Car. — Negligence.—It is not contributory negligence per se to attempt to board a street car at a time when it is already crowded with passengers, p. 85.</p> <p>Same. — Stopping Car. — Invitation to Take Passage. — The stopping of a street oar at a place where passengers were usually received is at least an implied invitation to those there in waiting to take passage if they so desire, p. 86.</p> <p>Same. — Boarding Crowded Car. — Negligence a Question for Jury.— Whether or not one is guilty of contributory negligence in attempting to take passage on a crowded street car where it has stopped at a place where passengers are usually received is a question of fact for the jury. p. 86.</p> <p>Same. — Boarding Crowded Car. — Injury to Passenger. — Complaint.—In an action against a street railway company for damages for personal injuries, the complaint alleged that plaintiff was in waiting at a point where it was customary for defendant to stop its cars and receive passengers; that a car stopped, and plaintiff stepped upon the step of the rear platform of the car which was already crowded with passengers, and was thrown to the ground upon the sudden starting of the car. Held, that the ■ complaint showed plaintiff to have been a passenger at the time he was thrown from the car. p. 88.</p> <p>NEGLieENCE. — Pleading.—Contributory Negligence. — Constitutional Law. —The act of 1899 (Acts 1899, p. 58), providing that in all actions for damages arising from personal injury or death it shall not he necessary for plaintiff to allege or proye freedom from contributory negligence on the part of plaintiff, or on the part of the person .for whose injury or death the action is brought, is not unconstitutional, pp. 88, 89.</p> <p>Same. — Personal Injuries. — Incurred Rish. — Street Railroads. — In an action against a street railway company for negligently injuring a passenger who had boarded a car already crowded, tlio defendant has tlie burden of proving facts showing that plaintiff assumed the risk incurred by boarding the car at tlie time. p. 89.</p> <p>Same. — Instruction Not Within the Issues. — In an action for personal injuries caused by the defendant’s negligence; it is error to instruct the jury that they might inquire not only whether the injury was caused by the negligent act set forth in the complaint, but also whether it was due to “any other cause which the defendant could have guarded against by the exercise of the highest degree of skill and foresight. ’ ’ p. 90.</p> <p>Trial. — Instructions Considered as a Whole. — Erroneous Instruction.— The rule that instructions must be considered as a whole, and that a judgment will not be reversed because a certain instruction when taken separately may be considered erroneous, is subject to the qualification that the court in trie particular case on appeal must be satisfied that the jury was not misled by the error. p. 93.</p> <p>Same. — Special Finding of Fact by Jury. — Constitutional law. — The act of 1897 (Acts 1897, p. 128), providing for a general verdict, and also special findings of fact, through answers to interrogatories propounded to the jury, is not unconstitutional as abridging the right of trial by jury. pp. 93, 9j.</p>

<p>Death by Wrongful Act. — General Administrator Proper Plaintiff.— The general administrator of the estate of a decedent is the personal representative of such deceased person within the meaning of §285 Burns 1901, and .the only proper plaintiff in an action given by said Ifection for a death by wrongful act. pp. 97, 98.</p> <p>Master and Servant. — Vice-Principal.—Joint Tort-Feasor. — An employe acting as vice-principal within the meaning of §7083 Burns 1901, is personally liable as a joint tort-feasor for a personal injury to an employe, though his negligence was the negligence of his principal, and he may be properly joined with the railroad company in an action to recover for the injury, pp. 98, 99.</p> <p>Same . — Personal Injuries. — Negligence.—Proximate Cause. — Employers Liability Act. — In an action against a railroad company and yard- - master for the death of a switchman while fastening broken cars together with a chain, under the orders of the yardmaster, the answers to interrogatories showed that an engineer, in response to a signal given by a brakeman, a fellow servant of decedent, backed his engine against the cars and caused the injury resulting in decedent’s death. The yardmaster saw the engine go upon the side-track on which the cars were standing which were being fastened together, and, having knowledge of the threatened danger to decedent, did nothing to prevent the act of the engineer. Held, that the negligence of the yardmaster was the proximate cause of the injury, pp. 99-106.</p> <p>Trial. — Evidence.—Harmless Emr. — Available error can not be predicated upon the exclusion of evidence, where the complainant during the trial received the full benefit of the evidence claimed to have been wrongfully excluded, pp. 106, 107.</p> <p>Same. — Evidence.—Rules of Railroad Company. — It was not error to admit in evidence, in an action against a railroad company, the rules of the company printed on, the reverse side of a large sheet containing a time-table which as noted at the head thereof was to take effect at a time subsequent to the injury for which the suit was brought, where no reference was made to the rules on the reverse side and it was shown by proof aliunde that the rules were in force and effect at the time of the injury, p. 107.</p> <p>Witnesses. — -Parties.-—Executors and Administrators. — Death by Wrongful Act. — A defendant in an action, under §285 Burns 1901, for damages for a death by wrongful act, is not rendered incompetent to testify as a witness in such action by §506 Bums 1901, since it is not a case in which a judgment may he rendered for or against plaintiff’s decedent. Hudson v. Houser, 123 Ind. 309, overruled. pp. 107-110.</p>

<p>Erom Tippecanoe Circuit Court; R. P. DeHart, Judge.</p> <p>Action by Asa T. Ridgely and others against Ilenry C. Kellogg and others. Erom a judgment in favor of plaintiffs, defendant Kellogg appeals.</p>

<p>Appeal and Error. — Transfer of Cause from Appellate Court. — Where a petition is granted by the Supreme Court to transfer a cause from the Appellate Court, under clause 2, §1337j Burns 1901, the .opinion of the Appellate Court is thereby vacated, p. 11J.</p> <p>License. — Parol License to Construct Brain. — Revocation.—Judgment.— Estoppel. — Where plaintiff sued and recovered as a part of his .damages the entire cost of constructing a tile ditch which had been constructed by plaintiff over the lands of defendant under an oral license, he can not thereafter maintain a suit to compel defendant to allow him to repair the ditch, pp. llf-120.</p> <p>Easements. — Enforcement Against Lands Held by Entireties. — Where the plaintiff is estopped by a former judgment from enforcing an easement in the, interest of the husband in lands held by the entireties, he can not enforce same against the wife. pp. 120,121.</p> <p>Appeal and Error. — Record.—Evidence.—Where all the requirements of the act of 1897 (Acts 1897, p. 244) have been complied with, the evidence is properly in the record, although it was attempted to bring the evidence into the record under the invalid act of 1899. p. 121.</p> <p>Same. — Bill of Exceptions. — Clerk’s Certificate. — An instrument containing the evidence which is signed by the judge and which purports to be a bill of exceptions containing all the evidence given in the cause is not changed by being designated in the clerk’s certificate as “a transcript of the evidence given in said cause.” pp. 121, 122.</p> <p>Evidence. — Testimony of Jurors in Former Action. — The testimony of jurors who tried a cause is not admissible in the trial of a subsequent action growing out of the same subject-matter for the purpose of showing the matters taken into consideration by the jury in the assessment of damages in the former trial, where such evidence contradicts the theory on which the former case was tried as shown by the record thereof. p>p. 122, 123.</p> <p>Judgment. — Fraud.—If a judgment is procured by fraud or mistake it can not be treated as a nullity, but is conclusive on the parties and their privies until reversed on appeal, or vacated or set aside in a direct proceeding brought for that purpose, pp. 123, 124■</p>

<p>Erom Madison Circuit Court; W. O. Barnard, ¡Special Judge.</p> <p>Action by Firman Bertianx against Thomas "Wright. From a judgment for plaintiff, defendant appeals.</p>

<p>Erom Clinton Circuit Court; J. V. Kent, Judge.</p> <p>Action by James W. Salmon against tbe Terre Haute & Logansport Railway Company. Erom a judgment in favor of plaintiff, defendant appeals.</p>

<p>Criminal Law. — Bunko-Steering.—Extraterritorial Effect of Statute.— Section 2178 Burns 1901, providing that “Whoever allures, entices or persuades another to any place upon any pretense, and then hy duress or fraud compels such person to win, or lose, or advance, or loan money, or execute or give his note or other obligation, either for money or anything of value, or to part with anything of value, upon any game or wager, or by means of any trick, device or artifice, is guilty of bunko-steering, and upon conviction thereof, shall be imprisoned in the state prison,” etc., has no extraterritorial force or operation, and the offense thereby defined can not be committed partly within the State of Indiana and partly without, pp. I4O-I40.</p> <p>Criminal Law. — Bunho-Steering.—Statute.—Construction.—Words and Phrases. — The phrase “any place” as used in §2178 Burns 1901, defining bunko-steering, means some place within the State of Indiana ; and the meaning thereof can not be so enlarged or extended as to make it apply to and include some place in another state. pp. 145, 14S ■</p> <p>Same. — Accessories Before the Fact. — Aiding Felony in Another State.— An information for aiding felony in another state, under §1645 Burns 1901, which by the laws of this State is a felony, must allege and show that the act or acts perpetrated by the principal constituted a public offense under the laws of such state, pp. I46-I40.</p>

<p>Counties. — Burial of Soldier. — Power of Trustee. — Where a township . trustee in the exercise of his judgment, and without fraud or collusion, employs an undertaker to hury the body of an honorably discharged soldier, under .the provision of §§8165j, 8165k Burns 1901, the undertaker is not required to look beyond the power of the. trustee to make the contract, and, if he proceeds in good faith to perform the service, he becomes entitled to recover of the county the reasonable value or contract price of his services and furnishings, not exceeding $50; and neither the county commissioners nor the circuit court has the authority to inquire into the ■ financial condition of the soldier at the time of his death, nor into the condition in which he left his family.</p>

<p>OARRnsps. — Street Railroads. — Expulsion of Passenger. — Transfer Ticlcet. —Plaintiff took passage on one of defendant’s street cars, paid his fare, and requested the conductor in charge of the car to give him a transfer ticket to a certain other line. The conductor gave him a transfer ticket, and, upon arriving at the transfer junction, plaintiff boarded a car of the line to which he had asked to be transferred and tendered the conductor the transfer ticket, but the latter refused to receive the same, claiming that the transfer was to another line on defendant’s road, and demanded that plaintiff pay his fare or leave the car. Plaintiff explained that he asked for a proper transfer, and that he received the one tendered, refused to pay an additional fare, and was forcibly ejected. Held, that the expulsion was unjustifiable, and that defendant is liable in damages therefor. Monks and Gillett, JJ. dissent.</p>

<p>Erom Marion Circuit Court (11,292); H. G. Allen, Judge.</p> <p>Mandamus by State, on relation of Margaret Hite and others, against William H. Hart, Auditor of State. Erom a judgment for relators on demurrer to answer defendant appeals.</p>

<p>Appeal and Error. — Conclusions of Law. — Exceptions.—IIow Reserved. —Bill of Exceptions. — Where exceptions to conclusions of law are not noted on tlie record at the close of the decision, as provided by §640 Burns 1901, they can not be brought into the record on appeal by bill of exceptions.</p>

From the Superior Court of Marion County (5928); J. M. Leathers, Judge. Action by David O. Hockett, by his next friend, against the Indianapolis Street Bailway Company. From a judgment for plaintiff, defendant appealed. Transferred from Appellate Court, under clause two of §1337j Burns 1901.

From Randolph Circuit Court; W. A. Thompson, Special Judge. Proceeding by John Hough and others for the construction of a ditch, to which John C. Rubey and others remonstrated. The circuit court dismissed an appeal from an order establishing the ditch, and remonstrators appeal.

Erom Blackford Circuit Court; E. G. Vaughn, Judge. Action by Hector Desgain against Jesse D. Wessner to recover money bet on a wrestling match. Erom a judgment for defendant on demurrer to complaint, plaintiff appeals.

<p>Waters and Watercourses. — Obstruction by Railroad. — Negligence.— Damages. — A railroad company in the construction of a railroad across a watercourse is required to exercise care and skill in order to avoid injury or damage to the property of another; but the company is not to be considered or held as an absolute insurer against all injury or damage, pp. SIS, SIS..</p> <p>Same. — Obstruction by Railroad.— Damages to Adjoining Lands. — In the absence of wilfulness or negligence, a Tailroad company is not liable for damages to adjoining lands arising from the obstruction of a watercourse by a roadbed embankment, pp. S13-S15.</p> <p>Same. — Obstruction by Railroad. — Damages.—Contributory Negligence.— In an action against a railroad company for damages to adjoining land caused by the negligent obstruction of a watercourse, the complaint must aver that plaintiff was without fault or negligence on his part. pp. S15, S16.</p>

From Gibson Circuit Court; O. M. Welborn, Judge. Action by Oscar Hitch against George T. Jarvis, receiver of the Louisville, Evansville '& St. Louis Consolidated Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under clause two of §1337j Burns 1901.

Erom Jasper Circuit Court; T. F. Palmer, Judge. Action by the State on relation of the hoard of commissioners of Jasper county against Joel F. Spriggs and others. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

From Lake Circuit Court; W. G. McMahan, Judge. Action by the town of Whiting against the Baltimore & Ohio Railroad Company. From a judgment of the circuit court affirming a judgment of the town clerk in favor of plaintiff, the defendant appeals.

<p>Appeal. — Evidence.-—Review.—Where on appeal the record shows competent evidence upon which the verdict may rest, the Supreme Court can not consider conflicting views of its weight and credibility, nor compare it with other evidence in the case which might justify a different conclusion, p. 845.</p> <p>Same.- — Evidence.—Review.—In reviewing the action of the trial court upon the denial of a motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict, the lack of evidence must be so clear and complete that it would have been the duty of the trial court, on proper request, to have directed a verdict for the party complaining of the decision, p. 846.</p> <p>Railroads. — Injury at Crossing. — Sufficiency of Evidence.- — As shown by the evidence, the plaintiff, possessed of all his faculties, was passing through a populous part of a city in an open buggy in the nighttime. The night was neither very light nor very dark. Upon approaching a point where the highway was intersected by seven railroad tracks, he stopped, looked each way, and listened for approaching trains. The view was partially obstructed by a telegraph pole, a derrick, fences, and a watchman’s shanty. Plaintiff saw and heard a train near by blowing off steam, but he saw no train coming toward him, and heard no bell or noise indicating the approach of a train, and he started to cross. While passing over the crossing the horse and vehicle were struck by a locomotive and plaintiff was thrown to the ground and injured. The train which caused the injury was running at an unlawful speed. Held, that the evidence was sufficient to uphold the verdict, pp. 843-848.</p> <p>Appeal. — Instructions.—Review.—Briefs.—An instruction will not be considered on appeal, where neither the instruction nor a succinct statement thereof has been set out in appellant’s brief as required by rule twenty-two of tbe Supreme Court, p. 848.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Quo warranto on the relation of'Pat. Antrim against Daniel- C. Reardon and others. From a judgment for defendants, relator appeals.</p>

<p>Constitutional Law. — Objections Must be Specific. — An objection that an act is not a constitutional exercise of'legislative authority is too vague and indefinite to raise any question. The particular provisions of the Constitution supposed to be violated should be pointed out. p. 256.</p> <p>Same. — Transient Merchants. — lácense.—Equal Protection of Law.- — The act of 1901, §§7231ar-7231i Burns 1901, prohibiting the transaction of business by any transient merchant without a license does not deny to the transient merchant the equal protection of the laws in violation of the fourteenth amendment of the United States Constitution, p. 256.</p> <p>Same. — Transient Merchants. — Acts Embracing More than One Subject.— The act of 1901, §§7231a-7231i Burns 1901, prohibiting the transaction of business.by a transient merchant without a license does not embrace more than one subject in violation of §19, article 4, of the state Constitution, p. 256.</p> <p>Same. — Privileges and Immunities. — Transient Merchants. — The act of 1901, §§7231a-7231i Burns 1901, providing a license for transient merchants, does not contravene §23, article 1, of the state Constitution, by granting special privileges» and immunities, since its provisions apply to all transient merchants whether residents or nonresidents of the county and State, p. 856.</p> <p>Constitutional Law. — Taking Property Without Compensation. — Transient Merchants. — The transient merchant act of 1901 §§7231a-7231i Burns 1901, does not authorize the taking of property without compensation in violation of §21, article 1, of the state Constitution. p. 856.</p> <p>Same. — Special Laws. — Transient Merchants. — The act regulating the licensing of transient merchants, §§7231a-7231i Burns 1901, is not invalid on the ground that it is a special law for the support of the common schools because of the incidental provision in §7 thereof that the license fee shall be paid into the common school fund of the State, since such section, even if void, would not vitiate the act. p. 857.</p> <p>Same. — Uniform, Taxation. — Transient Merchants. — The exemption of sheriffs, constables, assignees, receivers, and other public officers from the operation of the act of 1901 licensing transient merchants does not render the act violative of §1, article 10, of the Constitution which requires that taxation shall be uniform and equal, p. 857.</p> <p>Same. — Lácense.—Taxation.—It is competent for the legislature to exact a license fee, and at the same time to subject to taxation the property employed in the occupation licensed, pp. 857, 858.</p> <p>Same. — Use of Property. — Transient Merchant. — License.—The act of 1901, §§7231a-7231i Burns 1901, prohibiting the transaction of business of transient merchant without a license is a legitimate exercise of the police power of the State, and does not unlawfully deprive the citizen of the liberty to use and enjoy his property, and to pursue his happiness, as those rights are secured to him by §1, article 1, of the Constitution, pp. 858-868.</p>

<p>From Whitley Circuit Court; J. W. Adair, Judge.</p> <p>William H. Gardner was convicted of the crime of rape, and he appeals.</p>

<p>Attorney and Olient. — Collection of Judgment. — Failure to Account.— Limitation of Actions. — Trusts.—Plaintiff brought suit to recover money received by defendant as plaintiff’s attorney, and not paid over or accounted for. The complaint alleged that defendant was employed by plaintiff to prosecute a claim for personal injuries, for which he was to receive a fee equal to one-half of the sum recovered; that thereafter, by agreement, another firm of attorneys was employed to assist defendant, defendant to forego one-lialf of his stipulated fee for the payment of such attorneys. A judgment of $10,000 was recovered, and, pending an appeal, a proposal of $5,000 in settlement was made, and, to induce plaintiff to accept same, defendant agreed that plaintiff should have $3,000 thereof, and that he would pay the other attorneys $1,250 and accept the balance in full of his fee; that defendant received the $5,000, paid plaintiff but $2,500 and failed to pay the other attorneys, but kept the same and also kept the $500 balance due plaintiff. The defendant pleaded the six-years’ statute, of limitations. Held, that the claims were not in the nature of a trust against which the statute of limitations would not run, but were claims upon which an action at law might have been sustained, after demand, and that they were barred by the six-years’ statute of limitations, pp. 270-275.</p> <p>Limitation oe Actions. — Demand.—Condition Precedent. — -Where a demand is necessary before suit, it must be made within the period of the statute of limitations, pp. 27S, 27f.</p>

From Huntington Circuit Court; J. C. Branyan, Judge. Lawrence Bloch was convicted of the crime of entering a dwelling-house in the daytime and attempting to commit larceny, and appeals.

From Jackson Circuit Court; T. B. Buskirk, Judge. I' Suit by First National Bank of Seymour against William W. Isaacs, county treasurer, to enjoin tbe collection of taxes. From a judgment for defendant, plaintiff appeals.

<p>Appeal. — Record.—Instructions.—Instructions which are incorporated in the bill of exceptions containing the original longhand manuscript of the evidence are not thereby made a part of the record on appeal.. p. 289. :</p> <p>Same. — Criminal Law. — Defense of Insanity. — Review of Evidence. — Although the evidence upon the issue of the insanity of the accused in a criminal case may be possessed of little weight, still if it is of such a character that the jury may have reasonably inferred therefrom that he was of sound mind at the time he committed the offense, the question of his insanity can not be reviewed on appeal, pp. 289, 290.</p> <p>Okuhnal Law. —Insanity as Defense. —Excessive Use of Intoxicants. —Persons who indulge in the excessive use of intoxicants, and thereby become degraded and depraved in their morals, are not for that reason alone to be considered insane, so as to absolve them from responsibility for a crime committed, p. 291.</p>

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Vincent Ginn was convicted of murder in the second degree, and appeals.</p>

<p>Erom "Wabash Circuit Court; H. B. Shively, Judge.</p> <p>Injunction proceedings by the Et. Wayne & Southwestern Traction Company against the Wabash Railroad Company. Erom an order granting a temporary injunction, defendant appeals.</p>

From Howard Circuit Court; W. W. Mount, Judge. Suit by William H. Eikenberry against Walter J. Di-xon and others to quiet title. From a judgment in favor of plaintiff, defendants appeal. Transferred from Appellate Court, under clause 2, §1337j Burns 1901.

Erom Porter Circuit Court; W. C. McMahan, Judge. Suit by Mark L. DeMotte and others to enjoin the city of Valparaiso from selling its right to purchase a system of water-works owned by a private company. Erom a judgment in favor of defendant, plaintiffs appeal. Transferred from Appellate Court, under §133’7u Burns 1901.

<p>Estates. — Fee in Street. — Easement.—Injunction.—Pleading.—A complaint to enjoin the construction of a driveway by a city in such manner that it curved eighteen inche.s to the west in front of plaintiff’s property, based upon plaintiff’s ownership of the fee to the center of the street in front of his lot, must allege such ownership.</p>

Erofn Superior Court of Tippecanoe County; H. H. Vinton, Judge. Proceeding by James H. Bell ana others for the incorporation of the 'town of Oxford, to which Theophilus Stembel and others moved to dismiss, and filed remonstrances. From a judgment in favor of petitioners, remonstrators appeal.

<p>Erom Jackson Circuit Court; T. B. BusJdrk, Judge.</p> <p>Action by the State against the Adams Express Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error. — Waiver of Error. — Alleged error in refusing to give instructions requested is waived by failure of counsel to discuss same. p. 350.</p> <p>Criminal Law. — Murder.—Evidence.—Evidence in a prosecution for murder that witness had drunk with defendant and had seen him drink beer and whisky was properly admitted to meet and rebut specific evidence introduced in behalf of defendant that his flushed face, inflamed eyes, and unnatural manner at sundry times were the result of derangement, and that he never drank intoxicating liquors, pp. 350-352.</p> <p>Same. — Evidence.—In a prosecution for murder, a question asked defendant’s wife, a witness for the State, on cross-examination, whether she and her husband, while living at a certain place, did not have some trouble, was properly excluded as not relating to anything said by the witness on her examination in chief, and as irrelevant, p. 352.</p> <p>Saxe. — Evidence.—Cross-Examination.—No error was committed in sustaining an objection to a question on cross-examination where the matter inquired about had been fully covered by the former cross-examination, pp. 352, 353.</p> <p>Same. — Mental Incapacity. — Instruction.— An instruction that “although there may be some mental derangement, still if the jury trying said person should find that such person at such time had mental capacity sufficient adequately to comprehend the nature and. consequences of his acts, and a mind sufficient to deliberate and premeditate and to form an intention and purpose to kill— an unimpared will power sufficient to control an impulse to commit crime — he is not entitled to an acquittal upon the ground of mental incapacity” is not objectionable as assuming that defendant had sufficient mental capacity or reflecting on the defense set up. pp. 353, 354-</p> <p>Criminal Law. — Mental Incapacity. — Instruction.—No error was committed by the court in an instruction in a prosecution for murder in assuming that defendant committed the murder, where such fact was not controverted by defendant but was proved by the uncontradicted testimony of eyewitnesses, and the only ground of defense introduced was the alleged insanity of defendant, p. 354.</p> <p>Same. — Instruction.—An instruction in a prosecution for murder impressing upon the jury the gravity of the duty to be performed by them, the importance of their decision to the defendant and the public, and the necessity for the exercise upon their part of intelligence, independence, and moral courage was not an invasion of the province of the jury. p. 355.</p>

<p>From Jennings Circuit Court; Willard New, Judge.</p> <p>■ Action by William Harmon against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clark Circuit Court; J. K. Marsh, Judge.</p> <p>Habeas corpus by Charles Terry against Joseph P. Byers and others. From a judgment denying the writ, plaintiff appeals.</p>

<p>Appeal and Error. — Argument.—Waiver.—A mild and general suggestion of error in giving an instruction is insufficient to shift upon the court the burden of showing error that in the first instarice rests upon the party assailing the judgment, p. S66.</p> <p>Husband and Wife. — Abandonment.—Penalty.—Instruction.—In an action to recover a penalty under the provisions of §7298a et seg. Bums 1901, an instruction that evidence admitted tending to show the treatment of the husband by the wife might be considered by the jury, together with the other evidence in the case, in determining the relations existing between the parties, “and, if you find that defendant abandoned the relatrix, then in determining whether he had any just and sufficient cause for so doing,” is not erroneous as limiting the inquiry of the jury to the question whether he had any sufficient cause to abandon her. p. 367.</p> <p>Same. — Abandonment.—Cruel Treatment. — Failure to Support. — Penalty. —Section 7298a Burns 1901 gives to the wife whose husband has married her, under the circumstances mentioned therein, a remedy by way of penalty if the husband has, within the time fixed, abandoned her, or cruelly and inhumanly treated her, or failed and neglected to make reasonable provision for her support. pp. 367, 368.</p> <p>Husband and Wife. — “Abandonment.”—Words and Phrases. — The word “abandon,” as used in §7298a Bums 1901, means a physical , abandonment, not a mere constructive abandonment, pp. 367, 368.</p>

<p>Criminal Law. — Larceny.—Church Property. — Indictment.— Ownership of Property. — An indictment for larceny charging that the property stolen was the personal goods and chattels of persons named as trustees of a certain church is not bad for failing to state that the property belonged to the church, it not being shown that the church had ever been incorporated, pp. 369, 370.</p> <p>Appeal and Error. — Record.—Bill of Exceptions. — The evidence is not in the record where what purports to be the original bill of exceptions follows the certificate, and is in no way referred to or identified by the certificate and there is nothing in the record or certificate showing that the bill of exceptions was filed after it was signed by the judge, pp. 370, 371.</p>

<p>Municipal Corporations.— Towns. — Street Improvements. — Enforcement of Assessments. — Complaint.—A complaint to enforce a street improvement assessment alleged that the board of trustees of the town adopted a declaratory resolution for the improvement of so much of Arch street as lies between the north line of Pirst street and the south line of Broadway street, and that when the contract was let and the improvement completed defendants owned certain described real estate fronting on that part of said street so improved. Held, that the description was sufficiently certain to show the portion of the street to be improved and that it was in the town alleged, pp. 373, 374. .</p> <p>Pleading. — Exhibits.—While exhibits can not supply the place of necessary allegations in a pleading, they may add to the certainty of the averments with which they are properly connected and thereby relieve the pleading from the defect of uncertainty. p. 374.</p> <p>Municipal Corporations. — Towns.—Street Improvements. — Complaint. —It is not necessary that the complaint in an action to enforce a street improvement assessment specifically state the depth and width of the improvement and the kind of material used, when the resolutions and ordinances adopted hy the board and the contract and specifications fixing these particulars, are referred to in the complaint by proper averments, p. 374-</p> <p>Municipal Corporations. — Towns.—Street Improvements. — Complaint. —Averments in a complaint to enforce an assessment for street improvements that a final estimate of the cost of the improvement was made by the city engineer; that this estimate was filed with the town clerk; that the estimate showed the amounts which should be assessed against the lots abutting upon the part of the street so improved; that the work was accepted as completed by the board of trustees; that they gave the notice prescribed by statute of the hearing upon the assessments, and on a certain day accepted and confirmed the report and the assessment of benefits so made against the several lots reported benefited, together with the amount of the cost of such improvement each lot should bear, sufficiently show that the cost of the improvement was to be borne by the abutting property, pp. 374, 875.</p> <p>Same. — Towns.—Street Improvements. — Notice.—Complaint.—An allegation in the complaint in an action to enforce a street improvement assessment that the board of trustees “gave two weeks’ notice in said public newspaper of general circulation printed and published in said town, and the place, when a hearing could be had before the said board of trustees upon the said assessments of benefits as fixed by said engineer in his said report, ’ ’ was sufficient to show that notice of the time and place of the hearing was given. ' p. 375.</p> <p>Same. — Towns.—Street Improvements. — Appeal.—Constitutional Law.— The statute relative to street improvements in towns is not unconstitutional because no right of appeal is given as in the case of similar improvements in cities, pp. 375, 376.</p> <p>Same. — Street Improvements. — Constitutional Law. — The statute authorizing the assessment of the cost of street improvements to the abutting property by the front-foot rule is constitutional. p. 376.</p> <p>Pleading. — Cross-Complaint.—A joint cross-complaint which fails to state facts sufficient to constitute a cause of action in both cross-complainants is bad on demurrer, pp. 376, 377.</p> <p>Appeal and Error. — Street Improvements. — Enforcement of Assessment.— Attorney’s Fees. — An alleged excessive allowance of attorney’s fees in a proceeding to enforce a street improvement assessment will not be reviewed on appeal, where there was no motion for a new trial on the ground that there was an error in the assessment of the amount of recovery, nor any assignment of error under which such question could be examined, and the evidence is not in the record, pp. 377.</p>

<p>From Starke Circuit Court; J. C. Nye, Judge.</p> <p>Henry IT. Peelle was convicted of forcible entry, and appeals.</p>

From Pulaski Circuit Court; T. E. Howard, Special Judge. Suit by John C. Sharp and wife against Charles A. Skelton and others to quiet title. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Appeal and Ekrok. — Bill of Exceptions. — Record.—Bills of exceptions which are not shown by the record to have been filed with the clerk after being signed by the judge form no part of the record, and can not be considered on appeal.</p>

<p>Master and Servant. — Negligence.-—Personal Injuries. — Assumption of Pish. — Knowledge of Danger.- — Plaintiff was in the employ of a manufacturing company as a common laborer, and was classed in and worked with what was known as the “floating gang,” doing first one kind of work and then another. He was directed by defendant’s foreman to assist in forming a piece of steel into a piston-rod, at which he was required to work for forty-eight hours continuously, without sleep. After the rod was completed, the foreman directed him to assist in holding the rod in an upright position while workmen with heavy sledge hammefs riveted or fastened in the follower head, and, while obeying such orders, a sliver from the rod struck him in the eye, destroying the sight thereof. Held, that plaintiff was entitled to recover, pp. 394-401.</p> <p>Same. — Negligence.—Personal Injuries. — In determining the liability of the master for an injury to a servant, the inquiry is not whether the accident might have been avoided if the master had anticipated its occurrence, but whether, under the circumstances, the master was guilty of negligence in failing to anticipate it and provide against its occurrence, pp. 401, 402.</p> <p>Same. — Negligence.—Care to be Exercised by Master. — While in order to authorize a recovery by a servant for the negligence of the master the evidence must show that the master neglected to discharge a duty which he owed to the injured servant, and that ordinary or reasonable care is that degree of care which a person of ordinary prudence, under the particular circumstances, is presumed to exercise to avoid injury, such care is required to be in proportion to the danger to be avoided or prevented, pp. 401, 40%.</p> <p>Same. — Negligence.—Care to be Exercised by Master. — The duty of the master to provide a safe place 'for his servants to work and safe appliances with which to perform the labor required'of them is not only temporary but a continuing one, and the master must exercise reasonable or ordinary care to keep such places, appliances, tools or machinery, safe. p. 402.</p> <p>Same. — Negligence.-—Must Warn Inexperienced Servants. — While the servant assumes all risks naturally and reasonably incident to the services in which he embarks, so far as the hazards of the service are obvious and within the apprehension of a person of his experience and understanding, the law casts upon the master the duty not to expose an inexperienced servant, whom he requires to perform dangerous services, to such danger without giving him warning thereof, p. 40%•</p> <p>Master and Servant. — Negligence.—Assumption of Risk. — Servant Ordered to Work Out of Scope of Employment. — The servant’s implied assumption of the risk as a part of the contract of hire is confined to the particular work and class of work for which he is employed; and if the master orders him to work temporarily in another department of the general business where the work is of such a different nature and character that it can not be said to be within the scope of the employment, and where he is associated with a different class of employes, he will not, by obeying such orders, necessarily thereby assume the risks incident to the work. p. 403.</p> <p>Same. — Negligence.—Anticipation of Injury by Master. — Plaintiff, aman of mature years, inexperienced as an iron worker in rolling mills, employed and paid as a common laborer, was directed i to assist in the construction of a piston-rod in defendant’s factory, without being informed of the dangers incident thereto, and, while holding the rod in an upright position while workmen with sledge hammers riveted a piece thereon, a sliver from the rod struck him in the eye. Meld, that the jury was justified in finding that defendant company was negligent, and that under the facts it ought to have anticipated the accident and provided against its occurrence, pp. 403, 404.</p> <p>Same.' — Apprehension by Servant of Danger. — Overwork of Servant.— Evidence. — In an action against the master for injuries to a servant caused by a sliver of steel flying from a rod he was holding while others were hammering the end thereof, evidence that the servant had been required to work continuously for forty-eight hours, and that at the end of thirty-six hours he informed the foreman that ■ he could no longer endure the strain to which he was being subjected, was proper for the consideration of the jury as bearing on the subject as to whether the servant apprehended and appreciated the danger to which he was subjected, pp. 404-4O6.</p>

<p>Pleadino. — Election Contests. — Motion to Dismiss. — Demurrer.—Harmless Error. — Even if the only method of questioning the sufficiency of specifications in a petition to contest an election were by demurrer, available error can not be predicated upon the action of the court in sustaining a motion to dismiss the petition, if the right result was reached, p. 407.</p> <p>Elections. — Contests.—Complaint.—A petition to contest an election charging that there were certain legal ballots cast for plaintiff which were not counted, and certain ballots cast for defendant that were so marked and mutilated as to-render them void,' is insufficient, where it is not alleged that the illegal ballots counted for defendant, or the legal ballots not counted for plaintiff were protested, preserved, and returned to the clerk of the circuit court, pp. 407-411.</p>

Erom Tipton Circuit Court; W. W. Mount, Judge. Proceedings by William A. Kendall, executor of the will of Silas I. Davis, deceased, against Isabelle A. Davis and others to sell real estate to pay debts. Erom a judgment in favor of petitioner, defendant Isabelle A. Davis appeals.

From Yigo Circuit Court; J. E. Piety, Judge. Suit by Richard Barrett and others against Mary Burke and others for partition. From a judgment for plaintiffs, defendants appealed to the Appellate Court where the cause was reversed (31 Ind. App. 635), and plaintiffs appeal to Supreme Court, under clause 3, §1337j Burns 1901.

<p>From Clay Circuit Court; P. O. Colliver, Judge.</p> <p>Action by John C. Moss and others against Sugar Ridge Township. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under clause 2, §1337j Burns 1901.</p>

<p>From Madison Circuit Court; J. F. McClure, Judge.</p> <p>Action by Charles W. Moore against the Board of Commissioners of Madison county. From a judgment for plaintiff, defendant appeals.</p>

<p>From Sullivan Circuit Court; O. B. Harris, Judge.</p> <p>Quo warranto by tbe State, on the relation of William P. Maxwell, against John S. Dudley. From a judgment for defendant, plaintiff appeals.</p>

Erom Henry Circuit Court; W. O. Barnard, Judge. Mandamus by the State, on the relation of. Nellie Worl by her next friend, against J. Crawford Weir and another. Erom a judgment in favor of relatrix, defendants appeal.

<p>Contempt. — Execution. —Supplementary Proceedings. —Imprisonment of Female. — False Imprisonment. — The provision of §817 Bums 1901 that no female shall be imprisoned upon any order of arrest and bail, or upon an execution against the body, applies only to arrests in proceedings in the nature of the common law writ of capias ad satisfaciendum, and does not prevent the imprisonment of a female for contempt of court in refusing to obey an order issued by the count in a proceeding supplemental to execution directing her to pay over money in her hands belonging to the judgment debtor.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Suit by tbe Indiana Natural Gas & Oil Company against the Chicago, Indiana & Eastern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

From Marion Circuit Court (10,150); H. C. Allen, Judge. Proceeding by Harriet Westfall for the appointment of a receiver in a cause pending on appeal in the Supreme Court. From a judgment sustaining a motion to strike out the petition, plaintiff appeals.

<p>From Jennings Circuit Court; Willard New, Judge.</p> <p>Action by Fred Hollenbeck against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals</p>

<p>Appeal. — From Interlocutory Order Appointing Receiver. — Sufficiency of Complaint. — On appeal from an interlocutory order appointing a receiver, the sufficiency of the complaint in the principal action and the plaintiff’s right to an ultimate recovery can not be considered. p. 462.</p> <p>Receivers. — xippointment.—Sale of Stock of Goods by Insolvent Merchant.- — Where it is shown that an insolvent retail merchant sold his stock of goods in bulk for about one-third their value to a nonresident who is retailing the same at prices below cost, and is about to remove the remainder beyond the jurisdiction of the court, and numerous creditors are proceeding to enforce their claims, the court is justified in appointing a receiver to take charge of the goods, p. 464.</p>

<p>Erom "Whitley Circuit Court; J. W. Adair, Judge.</p> <p>Action by Theodore Garty against the Board of Commissioners of Whitley county. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Taxation. — Classification of Subjects. — Power of Legislature. — The power to tax is legislative in its character, and it is> not required under the Constitution of this State that there should be such an exact exclusion and inclusion of subjects of taxation as to meet fully the approval of the judicial mind as to what is reasonable. p. m-</p> <p>Same. — Vehicle Tax. — Exclusion of Certain Classes of Vehicles. — In the exercise of the power of classification, a common council of a city is authorized, in a vehicle tax ordinance, to exclude from its scheme of taxation electric street cars and automobiles, p. 475.</p> <p>Same. — Vehicle Tax Ordinance. — Vehicles of Nonresidents. — A vehicle tax ordinance is not rendered invalid because it fails to provide for the taxing of vehicles of nonresidents who habitually use the streets of the city. pp. 475-477.</p>

<p>From Harrison Circuit Court; W. C. Utz, Special Judge.</p> <p>Action by Jane Hunter against the Board of Commissioners of Harrison county. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Statutory Construction. — Amended Seetion of Act. — It is a rule of statutory construction, tliat a section of a statute as amended is to be regarded, as to matters thereafter occurring, as if such section, instead of the section which was blotted out by the amendment, had been a part of the original act. p. 488.</p> <p>Appeal. — Misdemeanor.—The Supreme Court can not entertain jurisdiction over any case of misdemeanor which does not fall within §9 of the act of 1901 (Acts 1901, p. 565). p. 482.</p> <p>Same., — Jurisdiction of Supreme Court in Misdemeanor Case. — Section 9 of the act of 1901 (Acts 1901, p. 566) defining the jurisdiction of the Supreme Court is not broad enough to authorize appeals to such court in misdemeanor cases in which there is involved only a question as to “the proper construction of a statute.” p. 483.</p>

<p>Appeal. — Recognizing Judgment by a Written Contract.- — -Dismissal.— Plaintiff brought suit against defendant for an accounting and dissolution of partnership, and to quiet title to certain real estate in the partnership. There was a judgment for plaintiff, and a receiver appointed. On the day the judgment was rendered tlio parties entered into a written agreement by the terms of which defendant was to receive, and did receive, the rents of the property in dispute to a certain future date, and in consideration therefor surrendered all claim to the rents thereafter. I-Ield, that the defendant having by the agreement recognized said judgment and received a consideration therefor, is estopped from asking its reversal for alleged error.</p>

<p>Highways.— Construction of Gravel Roads. — Act of 1903 Constitutional. ■ — The act of March 9, 1903 (Acts 1903, p. 255), providing for the construction by the county commissioners of gravel roads upon the presentation of a petition signed by a majority of the resident landowners of the county whose lands abut the proposed improvement, requiring notice to all persons affected, and providing for a hearing with the right of appeal, is not in violation of §12 of the bill of rights which prohibits the taking of private property for public use without due process of law; nor is the law unconstitutional as being class legislation, pp. 487, 488.</p> <p>Same. — Gravel Roads. — Title of Act of 1903. — Constitutional Law.' — ThQ title to the gravel road act of March 9, 1903: “An act concerning gravel and macadamized roads, ’ ’ is sufficiently comprehensive to include the provisions in the act for the laying out and Construction of new roads, p. 489.</p>

<p>Qm Warranto. — To Oust Justine of the Peace. — Information.—An information in the nature of a quo warranto to oust defendant from tho office of justice of the peace, which sets forth that relator and another were duly elected and commissioned justices of the peaco in a certain township, and that defendant, who was not elected, had, since the election, been commissioned, and was performing the duties of justice in such township, but which fails to show that the office held by defendant is the office to which relator was elected, is insufficient.</p>

From Deai’born Circuit Court; E. Gr. Bielby, Special Judge. Suit by Roger ~W. Lowe and others against the Lawrenceburg Roller Mills Company and others. From a judgment for defendants, plaintiffs appeal.

<p>From Superior Court of Ma'dison County; IT. C. Byan, Judge.</p> <p>Action by Amos C. Gwinnup against John Shies. From a judgment for defendant, plaintiff appeals. Transforred from Appellate Court, under §1337u Burns 190Í.</p>

<p>County Auditor. — Allowance for Servic.es Imposed by the County Reform Law. — Under §50 of the county reform law (Acts 1899, p. 364), a county council is authorized to make an allowance to the county auditor for any additional work imposed by the law from' the time the act became effective to the first of January of the following year.</p>

From Tippecanoe Circuit Court; R. P. DeHart, Judge. Information against George Katzman for malicious mayhem. From a judgment entered on defendant’s plea • in abatement after overruling a demurrer thereto, the State appeals.

From Johnson Circuit Court; W. J. Buckingham, Judge. Action by John Marvil against the Citizens Street Railroad Company and the city of Indianapolis. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court, under §1337u Burns 1901.

<p>Erom Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Jerome B. Leacliman against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Trusts. — Deed.—Declaration of Trust. — It is not necessary to- create a trust that the deed conveying the property to be affected by the trust shall contain the declaration of the trust upon ■which the same is held. p. 522.</p> <p>Same. — Declaration of Trust. — Writings.—Section 3391 Burns 1901, relative to trusts concerning lands being in writing, is satisfied if the trust has been manifested or can be proved by any writing under the hand of the party to be charged, or of the party who is enabled to declare the same, provided the fiduciary relations, terms, and conditions of the trust are set forth with sufficient certainty, p. 522.</p> <p>Same. — Establishment.—Writing.—Letters, receipts, or other writings signed by the trustee may be sufficient to establish a trust, p. 522.</p> <p>Same. — Letter.—Deed.—Evidence.—Where a letter written and signed by a person to whom land was conveyed, and upon which it was sought to establish that the land was conveyed in trust, was incomplete, indefinite or uncertain, the court erred in excluding evidence properly offered by defendant to show the situation, circumstances, and surrounding of the parties to the deed and letter, pp. 522, 523.</p> <p>Appeal and Error.-1-Assignment of Mr or. — Alleged error of court in the exclusion of evidence will not be reviewed on appeal, where the ruling complained of is not assigned as a cause for a new trial, p. 523.</p>

<p>From Rush Circuit Court; M. E. Eorhner, Special Judge.</p> <p>Action by Arthur 13. Irvin against the Rushville Cooperative Telephone Company. From a judgment for defendant, plaintiff appeals.</p>

<p>From Henry Circuit Court; W. O. Barnard, Judge.</p> <p>Suit by Abraham Pate and others against Peter P. Bushong. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court, under §1337u Burns 1901.</p>

From Tippecanoe Circuit Court; W. C. L. Taylor, Judge. Action by the State, on relation of the board of commissioners of Tippecanoe county, against David PI. Flynn and .others. From a judgment for defendants, plaintiff appeals.

From Wells Circuit Court; J. W. Adair, Special Judge. Proceedings by James B. Gavin and others for the establishment of a public drain. From an order of the board of county commissioners overruling exemptions of Delia M. Studabaker to the report of the engineer she appeals.

<p>Appeal. — Record.—No Exception Reserved. — Review.—Where the only error assigned is the overruling of a motion for a new trial, and it is not shown by the record that an exception was taken to such ruling, no question is before the Supreme Court for decision.</p>

<p>Injunction. —Eminent Domain. — Interurban Railroads. — Condemnation Proceedings. — The right of a corporation to exercise the power of eminent domain is a question to be determined in the condemnation proceeding, and a suit to enjoin a traction company from constructing its road on plaintiff’s land, for the appropriation of which proceedings had been brought, can not be maintained. pp. 588, 589.</p> <p>Same. — Eminent Domain.— Condemnation Proceedings. — Interurban Rail- . roads. — The fact that a court in a condemnation proceeding may make an erroneous ruling does not entitle the aggrieved party to an injunction, the remedy being by appeal from the ruling if authorized by statute, if not, by an appeal from the final judgment. p. 589.</p> <p>Queby. — Corporations.—Eminent Domain. — Has a defacto corporation the right to exercise the power of eminent domain given by statute to a corporation? p. 589.</p>

From Dearborn Circuit Court; N. 8. Givan, Judge. Action by tbe State on tbe relation of the board, of commissioners of Dearborn county against Frank B. Shutts, administrator of the estate of David Lostutter, deceased, and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1387o Burns 1901. ■

<p>Appeal and Error. — Jurisdiction.—An appeal involving the validity of a franchise is within the jurisdiction of the Supreme Court. p. 594-</p> <p>Street Railroads. — Municipal Corporations. — Franchises.—Annexation of Temtori/. — Interurban Railroads. — Transfers.—Carriers.—A street railroad company operating under an agreement with the city to issue transfer tickets free of charge to all passengers requesting the same who boarded its cars at any point upon its line within the limits of the city and whose destination might be any point upon any other line of the company within the city limits is bound to carry a passenger, tendering a transfer, to his destination on the company’s line, though his destination was at a point in territory annexed to the city after the contract between the city and company was made, and on the company’s interurban line on which it had a franchise entitling it to charge an additional fare outside the city as its limits were before the annexation of territory, p. 694-601.</p> <p>Municipal Corporations. — Franchises.—A contract granting a franchise to a street railroad company should be liberally construed in favor of the public, p. 601.</p>

From Grant Superior Court; Hiram Brownlee, Judge. Action by the National Supply Company against Benjamin J. Stranahan, receiver of the South Marion Cooperative Gas & Oil Company and the Harmony Gas & Oil Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court,under §1337u Burns 1901.

Erom Starke Circuit Court; JB. D. L. Glazebrook, Special J udge. Action by Henry Lightcap against Joseph Konovosky to review a judgment. Erom a judgment sustaining a demurrer to the complaint, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.

<p>From Cass Circuit Court; D. H. Chase, Judge.</p> <p>Suit by Edgar D. Closson against Marie E. Billman and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.</p>

<p>Constitutional Law . — Local Laws. — Building County Court-houses.— The building of county court-houses with county revenue is county business, within the meaning of §22, article 4 of the state Constitution, forbidding local and special laws regulating county business ; nor does it lose the character of county business when made a part of a legislative scheme for the relocation of a county seat. pp. 618-625.</p> <p>Same. — Relocation of County Seat of Newton County. — Building Court-house. —Local Legislation. — The act of March 2, 1899, relative to the relocation of the county seat of Newton county, provides among other things that the successful petitioners for a new site shall pay all costs of appraisement of the public property at the old site, shall present the county with real estate for a new site, and present plans and specifications for a new court-house; that a special tax shall be assessed and collected of the township where the new court-house is to be located; and that if the election provided for is not carried for relocation, or if an election is not held ■within two years the commissioners shall proceed to build at the old site. Reid, that by such provisions, the act seeks to regulate the building of a court-house, and is unconstitutional as being local and special legislation. Held, also that the invalid provisions relative to the building of the court-house are so intimately connected with the provisions relative to the relocation that the latter provisions can not be sustained, pp. 625-688.</p>

<p>From Spencer Circuit Court; H. M. Swan, Judge.</p> <p>George Goodman was convicted of assault and battery witb intent to commit murder, and appeals.</p>

<p>Appeal and Error. — Pleading.—Harmless. Error. — Where it clearly appears that the action was tried and determined upon an additional paragraph of complaint, alleged errors in the original complaint will not be considered onJ appeal, p. 632.</p> <p>Insurance. — Complaint.—Averment as to Ownership of Property. — An averment in a complaint in an action on an insurance policy that “after the loss and injury of his said property insured by said policy as aforesaid, defendant’s adjuster, in company with the plaintiff, visited the premises,” etc., taken in connection with facts showing ownership at the time of the execution of the policy sufficiently shows that plaintiff was the owner of the insured property at the time it was damaged by the fire in question. pp. 637, 638.</p> <p>Same. — Arbitration and Award. — An award made by appraisers appointed under a provision of an insurance policy that if a disagreement arose in respect to the amount of the loss sustained, the question should be submitted to two competent and disinterested appraisers, was properly set aside in an action on the policy, where it appeared that the appraiser selected by the company was in its employ, living in a distant city, and, though represented by the company’s agent to be disinterested, acted wholly in the interest of the company, and that said appraiser, acting in conjunction with an umpire selected at the suggestion of the company’s agent, procured an appraisement to be made at less than one-half of the loss sustained, pp. 638-648.</p> <p>Arbitration and Award. — Improper Influence. — A party to an arbitration who by his own acts either attempts to corrupt or improperly influence one or more of the arbitrators to make an award in his favor can not be heard to say that such act or acts on his part were ineffectual to accomplish the purpose designed, pp. 6/fl, 648.</p>

<p>Wills. — Contest.—Dismissal.—Renewal of Suit. — The voluntary dismissal of a suit to contest a will will not preclude the plaintiff from renewing the suit at any time within the limitation provided by §2766 Burns 1901. pp. 650-658.</p> <p>Same, — Appeal.—Assignment of Rmr. — Only matters of law can be assigned as error on appeal from a proceeding to contest a will. p. 658.</p> <p>Same. — Testamentary Capacity. —Insane Delusions. — Monomania. —Evidence that testator had insane delusions is insufficient to set aside a will on the ground of mental incapacity, where it is not shown that the delusions controlled or in some manner affected the execution of the will. pp. 658-667.</p>

<p>Criminal Law. — Information.—Forgery.—Idem Sonans. — An information in two counts, charging in one the forgery of the name John H. Yeike and in the other John H. Yieke, is not bad as joining two distinct felonies growing out of two distinct transactions, since the names are idem sonans. pp. 668, 669.</p> <p>Forgery. — Information.—Manner of Passing Forged Instrument. — The essence of the crime of forgery and of uttering a forged instrument is the intent to defraud, and the precise manner of the uttering or passing of the forged instrument is immaterial if accompanied with felonious intent, and need not be set out in an information charging the crime, pp. 670, 671.</p> <p>Same. — Information.—An information for forgery is not had because in one count it is charged that the forged note was passed “to Louis A. Meyer” with intent to defraud “one Louis A. Meyer,” and in the other count that the forged note was signed by “John H. Yeike,” and was passed with intent to defraud “one John H. Veike.” p. 671.</p> <p>Criminal Law. — Indictment or Information. — Repugnancy.—Repugnancy does not make a criminal charge bad when there is sufficient matter alleged to indicate the crime and person charged, p. 672.</p> <p>Same. — Indictment or Information. — Surplusage.—Neither an indictment nor information will be condemned for surplusage or informality when the language used charges a public offense with reasonable certainty, pp. 671, 672.</p> <p>Same. — Information.—An information for forgery charging that defendant “did then and there unlawfully, feloniously, falsely, fraudulently, and knowingly make, forge, counterfeit, utter, pub'lish, and pass to Louis A. Meyer as true and genuine, a certain false, forged and counterfeit promissory note,” etc., in effect charges the defendant with both the forging and uttering of the note as one single and continuous transaction, and as such is sufficient, p. 672,</p>

<p>Master and Servant. — Vice-Principal.—Complaint.—A complaint hy a servant for personal injuries seeking to charge defendant with negligence because of the omission of defendant’s master mechanic, which charges that the master mechanic not only had full charge of the work at which plaintiff was engaged at the time of his injury, but that lie had been ‘ ‘ intrusted by said defendant with the duty of keeping the ways, works, plant, tools, and machinery connected with and in use in the business of said defendant corporation in proper condition,” sufficiently shows that the master mechanic was a vice-principal, p. 674.</p> <p>Same. — Negligence.—Assumption of Risk. — Complaint.—Employers Liability Act. — The doctrine of assumed risk is involved in an action arising under the first subdivision of §7083 Burns 1901 for injuries sustained by a servant who was assisting in the construction of a building, by reason of the negligence of the master in leaving a bent or truss leaning against a gin pole without being held in position with guy-ropes, or other.means of support, and in such case the complaint must state facts showing that plaintiff did not assume the risk. pp. 674-689.</p>

<p>Appeal. — Demurrers to Several Paragraphs of Complaint. — General Exception. — Assignment of Error. — A general exception to the overrnling of demurrers to several paragraphs of complaint reserves no question, and an assignment of error predicated thereon presents no question on appeal, p. 691.</p> <p>Master and Servant. — Proper Appliances. — Negligence by Servant. — It is a master’s duty to have machinery and appliances properly constructed and maintained, hut the master is not hound to apprehend that a servant might put the same to a negligent use. p. 694.</p> <p>Same.- — Injury to Employe. — Employers’ Liability Act. — Plaintiff was employed by a railroad company in the construction of a bridge, and, at an interval when there was nothing for him to do, was sitting on a projecting bent. One who had charge of the work negligently ordered a stone lifted by a derrick at the time a train was passing. The suspended stone was thereby thrown against plaintiff, resulting in the injuries complained of. Held, that, since plaintiff was not at the time complying with any order of his superior, clause 2 of §1 of the employers’ liability act did not apply, pp. 694, 695.</p> <p>Same. — Incompetent Co-eniployes. — Assumption of Risk by Fellow Servant. —A.n employe impliedly contracts that he will assume, as one of the risks of the service, the perils of injury from the negligence of co-employes, where the employer is free from negligence in the selection and retention of such co-employes, p. 695.</p> <p>Same. — Who is Vice-Principal. — The controlling consideration in determing whether an employe is a vice-principal is, not his comparative rank, not his authority to command, and not his authority to employ or discharge, but whether he is the representative of the master in respect to those duties which the master can not escape by a delegation of them. p. 695.</p> <p>Same. — Foreman Distinguished from Vice-Principal.- — Where the person in charge of a number of men in the construction of a railroad bridge was a workman along with those who were subject to his orders, he was a foreman and not a vice-principal, pp. 695-700.</p> <p>Same. — Injury to Employe. — Negligence of Foreman. — Plaintiff was one of a number of men in the employ of a railroad company in the construction of a bridge. At an interval when there was nothing for him to do, plaintiff, choosing his own position, sat down near where the work was proceeding. Through the negligence of the foreman, a heavy stone suspended by a derrick was thrown against plaintiff causing the injuries of which he complains. Held, that there was no common law liability, pp. 691-701.</p> <p>Same. — Safe Working Place. — Master’s Duty. — A master is not bound to have a representative present at every moment to keep the place that a servant might occupy safe, as against the possible negligence of a co-employe, pp. 700, 701.</p>

<p>Negligence. — Fire Escaping from Locomotive. — Complaint.—In an action against a railroad company for damages caused by fire escaping from defendant’s locomotive, the failure to state in detail the facts constituting the negligence does not render the complaint bad on demurrer, where there is a general allegation of negligence. pp. 70S, 70S.</p> <p>Railroads. — Fire Escaping from Locomotive. — Negligent Operation of Locomotive. — General Verdict. — Answers to Interrogatories. — In an action against a railroad company for damages caused by fire escaping from defendant’s locomotive, answers to interrogatories showing that the locomotive was equipped with a sufficient sparkarrester, will not overthrow a general verdict for plaintiff, where the complaint averred not only a defective spark-arrester, but also the negligent operation of the locomotive, p. 70S.</p> <p>Appeal. — Evidence not all in Record. — Review.—The sufficiency of the evidence to sustain the verdict will not be considered on appeal, where the evidence is not all in the record, p. 70S.</p> <p>Same. — Evidence.—Review.—Briefs.—Appellant is not in a position to ask for a review of the evidence, where he has not complied with clause five of Supreme Court rule twenty-two, requiring that the statement in appellant’s brief shall contain a condensed recital of the evidence in narrative form. p. 70S.</p> <p>Negligence. — Proof by Direct or Circumstantial Evidence. — la. an action for damages from fire caused by the negligent operation of a locomotive, such negligence may be proved either by direct or circumstantial evidence, p. 704-.</p>

<p>Erom Blackford Circuit Court; B. G. Vaughn, Judge.</p> <p>Action by Hector Desgain against James McCormick. Erom a judgment for plaintiff, defendant appeals.</p>

Prom Grant Superior Court; Hiram Brownlee, Judge. Action by the Oil Well Supply Company against Benjamin J. Stranahan, receiver of the South Marion Cooperative Gas & Oil Company and the Harmony Gas & Oil Company. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u Burns 1901.