Volume 164 — Indiana Reports

<p>1. Liens. — Vendor and Purchaser. — Contract.—The lien of a vendor for unpaid purchase money arises from the principles of natural justice and equity, and is created for the purpose of securing the unpaid purchase money. It is not a contract relation, but arises by implication of law. p. 3.</p> <p>2. Limitations. — Bills and Notes. — Vendors’ Liens. — The ten-year statute of limitations is a good defense to an action on a note given for unpaid purchase money, and is also a good defense to a vendor’s lien, the security for such note. p. 4.</p> <p>3. Same. — Purpose.—The statute of limitations, being a statute of repose, and not of payment, is available only as a defense, and can not be used as a cause of action, p. 4.</p> <p>4. Same. — Vendor’s Lien. — Equity will not assist a plaintiff in canceling or annulling a vendor’s lien, barred by the statute of limitations, by quieting his title, p. 5.</p> <p>5. Quieting Title. — Equitable Nature of. — A suit to quiet title, though triable by a jury, is governed by equitable principles, and one who seeks to quiet his title must show that he has done equity, p. 6.</p> <p>6. Same. — Vendor and Purchaser. — Limitations.—Where the vendee brings suit to quiet his title as against his unpaid vendor, and such vendee pleads the statute of limitations as a defense to the vendor’s cross-complaint to foreclose a vendor’s lien, judgment should be given against plaintiff on his complaint and against defendant on his cross-complaint. p. 0.</p>

<p>From Superior Court of Marion County (62,030); J. M. Leathers, .Judge.</p> <p>Action by Albert R. Worm against Frederick Schreiber and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.</p>

Erom Hamilton Circuit Court; John F. Neal, Judge. Action by William J. Holliday and others against the Tuthill Spring Company and others. Erom a judgment in favor of plaintiffs, defendant Tuthill Spring Company alone assigns error on appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Henry Circuit Court; W. O. Barnard, Special Judge. Action by John K. Slack and others against the West Muncie Strawboard Company and others. From a judgment for plaintiffs, defendants appeal. Transferred from the Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>Erom Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Samuel I. Martin and wife against the Muncie Pulp Company. Erom a judgment for plaintiffs, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Tippecanoe Circuit Court; Joseph M. Rabb, Judge.</p> <p>Action by William E. Beach as treasurer of Tippecanoe county against James Buck as trustee under the will of Job M. Nash, deceased, for an injunction. From a decree for plaintff, defendant appeals.</p> <p>(Appealed to United States Supreme Court.)</p>

Erom Shelby Circuit Court; Douglas Morris, Judge. Action by Napoleon B. Brandenburg against Dollie Snodgrass and others to quiet title. Erom a decree for plaintiff, defendants appeal. Transferred from the Appellate Court under §133Ju Burns 1901, Acts 1901,'p. 590.

From Montgomery Circuit Court; Jere West, Judge. Prosecution by tbe City of Crawfordsville against the Chicago, Indianapolis & Louisville Railway Company for the violation of a municipal ordinance. Prom a judgment for $10, the defendant appeals.

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by the First National Bank of Columbus, Indiana, against the Blair-Baker Horse Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.</p>

<p>1; Tenancy in Common. — One Cotenant Purchasing Outstanding Title. — Resulting Trust. — Where one cotenant, holding under the same title as his cotenants, buys an outstanding title, a trust relation thereby arises in equity in favor of such cotenants, without regard to any question of fraud or over-reaching, p. 90.</p> <p>2. Same. — One Cotenant Purchasing Outstanding Title. — Merger.— Where one cotenant purchases an outstanding title, such title does not merge in the common estate nor vest in his cotenants, but such co-tenant holds same as a means of securing the payment of the cotenants’ proportionate share, p. 90.</p> <p>3. Same. — Right of One Cotenant to Share in Title Purchased by Another Cotenant. — Upon paying their proportionate shares within a reasonable time, cotenants may obtain proportionate shares in any outstanding title bought by one cotenant, but by express refusal so to pay or by conduct implying such refusal, such cotenants may elect not to share in such purchased title, p. 91.</p> <p>4. Same.. — Purchase of Title hy One Cotencmt. — Redemption.—Where one cotenant purchases the common property at a foreclosure sale, and there is no redemption from such sale within the statutory ' period, the legal title to such property passes to such purchasing cotenant, and the right of the cotenants to redeem thereafter is purely equitable, and an offer to pay the necessary rédemption money is a condition precedent to an action in equity for redemption, p. 92.</p> <p>5. Same.. — Rents and Profits. — Where one cotenant occupies the land and collects no rent from a third party, and does not deny his «¡tenants’ right or title, he can not be compelled to account for the rents and profits, p. 93.</p> <p>6. Same.. — Cotenant Purchasing at Foreclosure. — Rents and Profits.— Redemption. — Waiver.—The enjoyment of the rents and profits of property during the redemption year by one cotenant is not a waiver of the right to receive a deed at the statutory time. p. 93.</p> <p>7. Mortgages. — Foreclosure Sale.- — Rents and Profits During Year for Redemption. — The purchaser at a foreclosure sale under the act of 1861, where there is no redemption, is not bound to account for the rents and profits during such year, as they belong to such purchaser, p. 94.</p> <p>8. Equity. — Laches.—Public Policy. — Estoppel.—Laches as a defense to suits in equity is based upon grounds of public policy and is distinct from the doctrine of estoppel, p. 94.</p> <p>9. Same. — Laches.—Right of Action. — A complainant in equity, who, with full knowledge of his rights, has been guilty of long delay, without legal excuse, where another, as a practical result, has materially altered his position to his prejudice, so that it would be an injustice to render a decree in complainant’s favor, will be denied relief, p. 95.</p> <p>10. Equity. — Laches.—Application.—There is no fixed rule for the application of the doctrine of laches. Each case must depend upon its peculiar circumstances, and the question is addressed to the sound discretion of the chancellor, p. 96.</p> <p>11. Tenancy in Common. — Laches of Cotenant. — A cotenant who delays redemption of the common property, for speculative reasons, until another has been prejudiced, will be denied relief, p. 97.</p> <p>12. Pleading. — Variance.—Recovery.—Where the complaint alleges a legal title, recovery can not be had on proof of an equitable one. p. 97.</p> <p>13. Partition. — Laches.—Where plaintiff and his mother were cotenants of lands, and he refused for several years to assert his rights as against her, knowing that she claimed to be the absolute owner, and she sold such lands to an innocent third party, who paid full value, the plaintiff can not recover, p. 98.</p> <p>14. Equity. — Fraud.—Attempt to Commit. — Relief.—Where a cotenant, knowing his rights, purposely lies "in wait for an unwary purchaser, before asserting them, he can not recover, p. 99.</p>

<p>From Putnam Circuit Court; Presley O. Colliver, Judge.</p> <p>Action by Anna Oppenheimer against Greencastle School Township and others. Erom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Mandamus. — Complaint.—What Constitutes. — Where a verified petition and motion are filed for an alternative writ of mandate, but the alternative writ is not issued, such affidavit and motion constitute • the complaint, but where such alternative writ is issued, it is taken as the complaint, p. 10G.</p> <p>2. Pleading. — Complaint.—Mandamus.—Sufficiency.—Where the alternative writ.of mandate, in an action by the State on relation of an abutting landowner against the township trustee, to compel such trustee to open a certain highway, shows that such road was duly established by the board of commissioners; that a copy of the order of establishment and an order to open such highway had been served on such trustee by the auditor; and that such trustee had failed and refused for three years to open such road, though he had the- means to do so, such alternative writ states a cause of action, p. 106.</p> <p>3. Appeai and Error. — Brief.■—Supreme Court Rulés. — Wher® appellant’s brief omits the names of some of the witnesses entirely and gives a mere reference to the general tenor and effect of the evidence, but makes no attempt to set out its substance, any question depending upon the sufficiency of the evidence is waived, p. 107.</p>

<p>From Whitley Circuit Court; J. H. Rose, Judge.</p> <p>Action by Andrew A. Adams against the Board of Commissioners of the County of Whitley. From a judgment for defendant, plaintiff appeals.</p>

<p>1. RiiLEOADS. — Cattle-guards.—Standard of Care. — The standard of care in the maintenance of cattle-guards is not the cafe determined by the general usage of first-class railroads, but that which is provided by statute, that is, “suitable and sufficient to prevent” animals “from getting on such railroad.” p. 110.</p>

<p>1. Street Railroads. — -Children on Street. — Care Reqwm-ed. — A street railroad company is not an insurer of the safety of a child on or near its tracks, and an instruction that such company “must make sure that the child will be free of the track at the point where it is crossing or approaching such track, before the car reaches it,” is erroneous, p. 113.</p> <p>2. Appeal and Error. — Instructions.—Result.—Where the verdict is clearly right on the evidence, erroneous instructions will not warrant a reversal, p.-114.</p> <p>3. Negligence. — Contributory.—Infmits.—An infant three years old is non sui juris, and as a matter of law can not be guilty of contributory negligence, p. 116.</p> <p>4. Street Railp.oads. — Duty When Child Rear Trade. — It is the duty of the motorman of a street car, when he sees a child approaching or on the track, to check his car and avoid any injury. It can not be lawfully presumed that a child will take heed of the usual warnings given, p. 116.</p> <p>5. Street Railroads. — Injuries to Child. — Contributory Negligence of Parents. — Where a three-year-old child was killed in front of its home, and it is shown that the father was away from home, and the mother had left such child in company with an older one on the front porch, while she went to the kitchen to look after some work, and was gone about five minutes, contributory negligence on the part of such parents is not shown, p. 117.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by tbe Town of Longview against tbe City of Crawfordsville for an injunction. From a decree for defendant, plaintiff appeals.</p>

<p>Erom Fayette Circuit Court; W. A. Brown, Special Judge.</p> <p>Action by George E. Manlove and others against Mary L. Myers and others. From a judgment for plaintiffs, defendants appeal.</p>

From DeKalb Circuit Court; C. W. Watkins, Special Judge. Action by Elizabeth A. McClellan as executrix of the last will of Charles A. O. McClellan, deceased, and another, against Elizabeth X. Coffinberry and others. Erom a decree for plaintiffs, defendant Coffinberry appeals-. Transferred from Appellate Court under §13370 Burns 1901, Acts 1901, p. 565.

Erom Montgomery Circuit Court; Jere West, Judge. Action by Lucinda Barnes as administratrix of tbe estate of George E. Coombs, deceased, against tbe Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.

From Jennings Circuit Court; William Fitzgerald, Special Judge. Application by Perry F. Smith for license to sell intoxicating liquors, against which Lambert E. Mace files a remonstrance. From a judgment for the applicant, remonstrant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Evidence. — Street Railway Accident. — Declarations of Third Party to Motorman After Accident. — Res Gestae. — The declarations of a third party to the motorman of a street car immediately after the accident complained, of, that such car was “run without any lights,” and that he was “running dark,” no reply thereto being made by such motorman, are inadmissible against the street railway company, res gestae declarations being confined to the parties or those related in some manner to the transaction, p. 157.</p> <p>2. Trial. — Instructions.—Street Railways. — Gore in Use of Streets.— __ An instruction that a street railway company must “use ordinary and reasonable care’.’ to avoid injuring persons using the streets, and that “greater care is required in populous cities and crowded streets than in sparsely settled districts and streets or highways upon which there are few travelers,” is erroneous, as invading the province of the jury, p. 159.</p>

<p>Erom Rush. Circuit Court; John L. Rupe, Special Judge.</p> <p>Action by the Rushville Natural Gas Company against the City of Rushville. Erom a decree for plaintiff, defendant appeals.</p>

<p>1. Contracts.- — Representations.—A contracting party has the right to rely on the express statement of an existing fact the truth of which is unknown to him, but which is asserted by the other contracting party as a basis for the contract, p. 171.</p> <p>2. Same. — Representations.—Value.—Opinion.—Ordinarily mere representations of value are not sufíiciént to support a charge of fraud, but such representations under certain circumstances may be the affirmations of facts, and whether they are expressions of opinion or of fact, is a question of fact for the jury. p. 171.</p> <p>3. Fraud.- — Representations.—Opinion.—Liability.—The doctrine that no man is liable for a statement of his opinion or judgment is true only when such statement stands by itself and is intended to be taken only as an opinion or judgment, p. 172.</p> <p>4. Contracts. — Representations of Value. — Knowledge. — Where a party to a contract makes a statement of the value of property to the opposite party, knowing that such opposite party is ignorant of such value, and such representation is not a mere expression of opinion, but given as a fact, su,ch party is bound thereby, p. 173.</p> <p>5. Fraud. — Misrepresentations.—Capacity of Party. — Where, a party to a contract uses undue influence, duress, misrepresentations, concealment, or takes advantage of the other party’s ignorance, inexperience or want of advice, and such other party is mentally weak, such contract is voidable, p. 175.</p> <p>6. Pleading. — Complaint.—Fraud.—Sufficiency.—A complaint showing that plaipfiff was a deaf mpte, who copld pommunic.ate only by signs; that he was of feeble intellect, and susceptible to the influence and arts of others; that he was unacquainted with the value of his real estate; that he was incapable of transacting business of any magnitude; that defendant represented that such lands were worth only $1,500, when in fact they were worth $2,000; that defendants knew such facts, and that plaintiff relied upon defendants’ representations and took $1,500 for such lands, is suflicient on demurrer, p. 175.</p>

Erom Lake Circuit Court; Willis C. McMahan, Judge. Action by Alice Weyhe and another against Rosetta Wagner and husband. Erom a decree for plaintiffs, Rosetta Wagner appeals. Transferred from Appellate Court under subdivision 2, §1337j Burns 1901, Acts 1901, p. 565.

From Marion Circuit Court (11,657) ; Henry G. Allen, . Judge. Action by tbe Miles Lamp Chimney Company against the Erie Eire'Insurance1 Company and another. Erom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §133lu Bums 1901, Acts 1901, p. 590.

<p>From Superior Court of Marion County (61,369) ; Vinson Carter, Judge.</p> <p>Action by George R. Avery against the Nordyke & Mar-Anon Company. From a judgment of the Appellate Court (34 Ind. App. 541) reversing a judgment for defendant, defendant appeals under subdivision three, §1337] Bums 1901, Acts 1901, p. 565.</p>

<p>1. Master and Servant. — Factory Act. — Employment of Minor Under Fourteen. — Negligence.—The employment of a minor under fourteen years old, being in violation of the factory act, constitutes negligence per se, and if such minor, without contributory negligence, receives injuries of which such employment is the proximate cause, he can recover, p. 191.</p> <p>2. Pleading. — Complaint. — Breach of Diity. — Injury. — Proximate Cause. — Intervening Agency. — A complaint for damages for personal injuries by a minor under fourteen, founded upon the master’s violation of the “factory act,” must show injury caused by reason of such employment, and wEere it shows the intervention of a responsible independent agent, such complaint is bad. p. 191.</p> <p>3. Negligence. — Intervening Agent. — Exception.—Where the proximate result of negligence is interrupted by a responsible intervening agency, the original negligence is not the proximate cause of the joint result of such intervening agency and such negligence, unless such intervening act was such as might reasonably be foreseen or anticipated as the probable or natural result of such negligence, p. 192.</p> <p>4. Pleading. — Complaint. — Master and Servant. — Factory Act. — Intervening Agent. — Where, in an action by a servant against his master for damages for personal injuries caused by such master’s violation of the factory act in employing such servant, who was under fourteen years old, the complaint alleged that “Wessel [a third party] negligently and carelessly threw a stick of wood or timber weighing about eight pounds against plaintiff, thereby injuring him,” such complaint shows that such damage was caused by the intervening act of a third party, and not by defendant, p. 194.</p> <p>5. Same. — Negligence.—General Allegation. — Motion to Mahe More Specific. — A general allegation of negligence is sufficient as against a demurrer for want of facts, the defendant’s remedy being a motion to make more specific, p. 194.</p> <p>6. Trial. — Instructions.—Burden of Proof. — An instruction substantially defining a preponderance of the evidence as that which is more satisfactory to the minds and consciences of the jury on a given proposition, is erroneous, p. 195.</p> <p>7. Trial. — Instructions.-—GonfAct.-—Where the court gave an instruction that if the jury found certain facts (omitting the effect of contributory negligence) their verdict should be for the plaintiff, and afterwards gave an instruction that if plaintiff was guilty of contributory negligence he could not recover, such former instruction was erroneous and in conflict with the latter, and was calculated to mislead the jury. p. 195.</p>

<p>1. Statutes. — Construction. — Express Companies. — The term “express companies” in the act of 1901 (Acts 1901, p. 97) is used in a generic sense, and includes copartnerships, associations of persons, individuals, joint stock associations or corporations doing an express business., p. 200.</p> <p>2. Indictment and Information. — Charging in Language of Statute. —Express Companies. — Where the statute prescribes a penalty for the refusal of any express company doing business within the State of Indiana to deliver any express package to the consignee, and the affidavit charges that “the United States Express Company * * * did then and there, being an express company doing business within the State of Indiana,” etc., such affidavit is sufficient, even- though such company is a partnership and not a corporation, p. 201.</p> <p>3. Statutes. — Construction.—Express Companies. — Delivery of Packages. — The act of 1901 (Acts 1901, p. 97) providing for the delivery of “express matter to all persons to whom the same is directed” means that such delivery shall be at the residence or place of business of the consignee, p. 202.</p> <p>4. Carriers.- — Express Companies. — Delivery.—Common-Law Duty.— Ordinarily it is the common-law duty of an express company to deliver packages sent thereby at the residence or place of business of the consignee. p. 202.</p> <p>5. Constitutional Law.- — Interstate Commerce. — Police Power.— Rights of State. — In the absence of legislation by congress the state may enact reasonable laws under the police power, although they may incidentally affect interstate commerce, p. 204.</p> <p>6. Carriers.- — Interstate. — Liabilities. — State Laios. — A carriel-, though engaged in interstate commerce, is liable for its nonfeasances , and misfeasances according to the laws of the states wherein they are committed, p. 204.</p> <p>7. Constitutional Law. — Interstate Commerce. — Express Companies. — -Delivery of Packages. — A state statute compelling express companies under penalty to deliver express packages to consignees at their residences or places of business is not an attempted regulation of interstate commerce, and is valid, p. 208.</p> <p>8. Same. — Power of State to Regulate Express Companies’ Rights.— The State may make any law in reference to the regulation of express companies which is not in violation of the state or federal Constitution. p. 209.</p> <p>9. Same. — Public-Service Corporations. — Private Property. — Where a person devotes his property to public use or public service, he thereby grants to the public an interest in such use and must submit to be controlled by the public for the common good, and tiring of such control, such person may withdraw the property from such use. p. 210.</p> <p>10. Same. — Harsh Statutes. — A statute can not be declared unconstitutional because it may be harsh, or because it may not be in accord with the views of the court as to what should be done. p. 212.</p> <p>11. Same. — Police Power. — Under the police power persons may be deprived of both liberty and property in a sense, and be without redress, p. 213.</p> <p>12. Statutes. — Construction.—Courts will not construe a statute, where the language does not compel, so as to conflict with the Constitution. p. 213.</p> <p>13. Constitutional Law. — Confiscation.—The act of 1901 (Acts 1901, p. 97), compelling- express companies to deliver packages is not in conflict with section twenty-one of the bill of rights, prohibiting confiscation of private property, p. 214.</p>

<p>From Martin Circuit Court; James W. Ogden, Special Judge.</p> <p>Action by Alfred Guthrie against Adda T. Howland and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under subdivision 1, §1337] Burns 1901, Acts 1901, p. 565, §10.</p>

<p>1. Extradition. — Interstate.—Right to Try for Different Grime.— A fugitive from justice, rendited from another State, may lawfully be tried upon a different charge than the one for which he was rendited, without giving such fugitive a chance to return to his asylum state, p. 229.</p> <p>2. Same. — Right of. — The right of one nation to demand and receive from another nation a fugitive from justice depends upon treaty stipulations and is measured thereby, p. 230.</p> <p>3. Same.' — Right of Asylum. — Whether Inheres to the Person. — The right of asylum is not a natural or inherent right of the person, but ' is based upon the right of the sovereign to afford an asylum to the fugitive in his territorial jurisdiction, p. 231.</p> <p>4. Same. — Interstate Rendition. — The principles governing international extradition do not apply to interstate rendition, p. 232.</p> <p>5. Constitutional Law. — Interstate Rendition. — The trial of a fugitive from justice by the state in which the crime was committed, upon a different charge than the one on which such fugitive was rendited, is not in violation of the Constitution of the United States, p. 232.</p> <p>6. Extradition. — Interstate Rendition. — Trial Upon Different Charge. —Where a fugitive is placed upon trial for an offense the facts of which are the same or substantially the same as of the crime for which he was rendited, defendant can not complain, though the offenses are technically different, p. 235.</p> <p>7. Indictment and Ineobmation. — Oounts.—Sufficiency.—Harmless Error. — Where the defendant is acquitted on certain counts in an information, error of the court in refusal to quash is harmless, p. 235.</p> <p>8. Same. — Counts in Information. — Legality.—An information may consist of different counts, p. 235. ,</p> <p>9. Same. — Counts.-—Election.—A motion to require the state to elect on which count it intends to try is addressed to the sound discretion of the court, and such discretion, unless abused, will not be reviewed and reversed, and where it appears that the several counts were based upon the same essential facts, the doctrine of election does not apply, p. 235.</p> <p>10. Evidence. — Alteration of Chech. — Conspiracy.—Declaration of •Co-Conépirator in Absence of Defendant. — The declarations of a co-conspirator at the time of his attempted negotiation of a forged check, though in the absence of the defendant, are admissible against defendant, p. 236.</p> <p>11. Same. — Letter Found on Co-Conspirator. — A letter, purporting to be from defendant and containing admissions, found on a co-conspirator, is competent evidence against such defendant as a physical fact of an incriminating character, and is also competent when identified by such co-conspirator as having been received from defendant, p. 237.</p> <p>12. Appeal and Eeeob. — Weighing Evidence. — .Criminal Case. — The Supreme Court is not authorized to weigh the evidence on appeal in a criminal case by virtue of the act' of 1903, Acts 1903, p. 338, §8. p. 237.</p>

<p>1. Wills. — Bequests.—Definite Failure of Issue. — Where testator be- . queaths to a son a certain income, to be derived from bonds, “and after the death” of such son, “if he die without issue, I will to the said” certain other legatees, such bonds, such gift over is expressly limited to take effect after such first taker’s decease, and therefore imports a definite failure of issue, and is valid, p. 240.</p> <p>2. Same. — Bequest. — Power of Disposition. — Oift Over. —• Where a testator bequeaths to a legatee the interest on certain bonds, but gives no1 power of disposition to such legatee, a gift over of such bonds is valid, p. 240.</p> <p>3. Same. — Executory Bequest.- — Descent. — An executory bequest, where the taker is certain and not dependent upon the determination of a contingency, descends to such taker’s personal representative, p. 241.</p>

<p>1. Principal and Surety. — Alterations of Contract. — Release of Surety. — AVhere a building contract by its terms contemplated alterations, and the submission of same to an architect for computation as to cost, and it was shown that several small alterations were made by agreement, without submission to such architect, the surety on the contractor’s bond is not released, since the architect was merely the agent of the owner, and the provision was for his benefit, which provision he could waive without injury to any one unless the changes made materially altered the cost of the building, p. 244.</p> <p>2. Contracts. — Building.—Alterations.—Release of Surety. — AVhere slight and trivial changes are made in a building and there is no express provision in the contract authorizing such changes, the making of such changes does not release the surety on the contractor’s bond, since such alterations do not constitute an abandonment or abrogation of such contract, but are contemplated by the agreement to build, p. 244.</p> <p>3. Principal and Surety.- — Building Contract. — Failure of Owner to Perform. — Release of Surety. — AVhere the owner agreed with .the contractor to insure a house to be erected, the insurance to go to the owner and contractor as their interests might appear, but such owner insured in favor of his mortgagee, but no fire occurred, such contractor’s surety is not released, since he is not injured, p. 244.</p> <p>4. Same.- — Building Contract — Failure of Builder.- — Notice to Surety. —Evidence.-—The surety on a contractor’s bond is not entitled to notice of such contractor’s failure to perform his contract, and the admission of a letterpress copy of a notice to such surety, even if erroneous, is harmless, p. 248.</p> <p>5. Trial. — Special Findings. — Failure to Find Facts Proved. — AVhere, in an action by the owner against the surety on a contractor’s bond, the court failed to find certain trivial alterations in the building of a house, such error is harmless, since such facts, if found, would not relieve such surety, p. 248.</p>

Erom Hamilton Circuit Court; J. F. Neal, Judge. Action by tbe Indianapolis Northern Traction Company against Martin V. Basey and another. Erom a judgment for defendants the Union Traction Company of Indiana, with whom the plaintiff had consolidated, appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Henry Circuit Court; J. W. Headington, Special Judge. Petition by William J. B. Lutber and others for an election to grant a railroad subsidy against which Henry L. Current and others remonstrate. From a judgment for petitioners, remonstrants appeal. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.

From Clinton Circuit Court; Joseph Claybaugh, Judge. Petition by Mary B. Adams and others for the construction .of a drain, against which Joseph G-. Kemp and others remonstrate. From a judgment of the circuit court establishing such drain, remonstrants appeal.

<p>1. Appeal and Ekkok. — New Trial. — Misconduct of Juror. — Bill of Exceptions.- — Where the misconduct of a juror is assigned as a cause for a new trial, but the affidavits in support of such motion have not been brought into the record by a bill of exceptions, no question is presented, p. 264.</p> <p>2. New Tpial. — Joint Assignment. — Where four separate rulings are jointly assigned as a reason for a new trial, such motion should be overruled if one of such rulings is correct, p. 267.</p> <p>3. Same. — Misconduct of Prosecutor. — Argument to the Jury. — Where an expert testified that in his judgment a wound on decedent was caused by a stroke with a closed pocket knife, and in his argument to the jury the prisecuting attorney said, “When Joe [defendant] struck the old man with this knife,” and on interruption by counsel for defendant, further said, “I have a right to say it was done with this knife,” it was not error for the court to refuse to compel a retraction of such statements, and to admonish the jury to disregard same, even though the inference from the evidence might be incorrect, p. 268.</p> <p>4. Same. — Misconduct of Prosecutor. — Argument to the Jury. — A new trial can not be granted because of improper remarks by the prosecuting attorney, where defendant’s substantial rights are not invaded, p. 269.</p> <p>5. Same. — Instructions m Criminal Case. — How Made Part of Record. ■ — Instructions in a criminal case which are tendered and refused can be made part of the record only by a bill of exceptions, p. 269,</p> <p>6. New Trial. — Instnwtions.—Joint Assignment. — A motion for a new trial, assigning as error the giving of certain instructions as an entirety, should be overruled if one of such instructions is good, p. 269.</p> <p>7. Same. — Instructions.—How Considered. — Instructions complained of should be considered in connection with a'll of the other instructions given in the case. p. 270.</p> <p>8. Homicide. — Murder.—Purpose.-—Malice.—Premeditation.—The elements of purpose and malice must concur in a homicide in order 'to constitute murder in the second degree, and premeditation must concur with both to constitute murder-in the first degree, p. 270.</p> <p>9. Same. — Intent.—A person having no capacity for forming a criminal intent can not legally be convicted of homicide, p. 270.</p> <p>10. Trial. — Criminal Case. — Burden of Proof. — Material and Incidental Pacts. — The material elements in a charge of crime must be proved beyond a reasonable doubt, but the incidental or subsidiary facts need not be proved in such manner, and the facts must all be considered together in arriving at a verdict, p. 271.</p> <p>11. Evidence. — Homicide.—Character of Decedent as Dangerous Man. —When Proof Admissible. — Where the evidence shows without contradiction that defendant was the aggressor in the altercation which ended in decedent’s death, evidence of the character of decedent as a dangerous person is inadmissible, p. 271.</p> <p>12. Trial.- — Oral Motion to Strike Out Evidence. — An oral motion to strike out, which identifies the evidence sought to be stricken out, is sufficient, p. 273.</p> <p>13. Same. — Motion to Strike Out Evidence. — No Objection When Introduced. — It is discretionary with the trial court to strike out incompetent evidence where no objection was made when such evidence was admitted, p. 273.</p> <p>14. Evidence. — Real.—Knife.—When there is some evidence, whether direct or circumstantial or both, that a wound on decedent was caused by a knife, a knife taken from defendant the next morning after the altercation is competent evidence, p. 274.</p> <p>15. Same. — Cross-Examination.—Province of. — Where evidence is offered in chief on a certain subject, the opposite party has the right to go into the full details of such subject, p. 274.</p> <p>1G. Same. — Relations Between Defendant and Decedent. — Cross-Examination. — Harmless Error.- — Where defendant introduces a witness and proves the relations existing between defendant and decedent, it is not reversible error for the court to permit the prosecution, on eross-examination, to go into other circumstances showing such relationship, p. 275.</p> <p>17. Same. — Relations Between Decedent and Defendant. — Cross-Examination. — Where defendant in a homicide case called a witness to prove the differences between himself and decedent, and such witness testified without objection that deceased directed witness to inform defendant that he (deceased) would make no more payments on the farm, to which defendant replied, “You don’t think he is going back on me, do you?” it was not prejudicial error to prove by such witness on cross-examination, over defendant’s objection, that in another conversation concerning the same transaction defendant said, “If he goes back on me he will never go back on any one else,” since the State was entitled to prove such declarations in chief and it does not appear that the effect was different by reason of their being brought out on cross-examination.- p. 27G.</p> <p>18. Appear and Erbor. — New Trial. — Evidence.—Sufficiency.—Where there is a conflict-in the evidence as to the defendant’s sanity, the verdict of the jury is conclusive, p. 276.</p>

<p>From Delaware Circuit Court; Chauncey L. Medsker, Special Judge.</p> <p>Action by Cyrus B. St. Jobu against James E. Stafford, and others. Erom a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Kosciusko Circuit Court ; Arthur F. Biggs, Special Judge.</p> <p>Action, by Adam Tully against Jeremiah Adams. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Newton Circuit Court; Charles W. Hanley, Judge. Petition for writ of mandate by tbe State of Indiana, ex rel. James A. Whaley and others against the Advisory Board of Washington Township. Erom a judgment for plaintiff, defendant appeals.

<p>From Superior Court of Marion County (63,669); James M. Leathers, Judge.</p> <p>Action by William Cauley against the City of Indianapolis and the Indianapolis Street Railway Company. From a judgment rendered on a verdict for $2,500, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Jasper Circuit Court; C. W. Hanley, Judge. Action by Jesse J. Ery against William M. Shafor and others for an injunction. From a decree for plaintiff, de»fendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Evidence. — Transcript of Sister State Judgment. — Authentication. —A transcript of a judgment of a sister state, signed by the presiding judge, who gave his Christian name merely by the initials, is admissible in evidence, p. 323.</p> <p>2. Same. — Final Judgment. — What is. — A transcript of the record of a court of a sister state showing a motion for judgment by default followed by the entry: “By the Court. Whereupon judgment is entered against defendant in favor of plaintiff for the sum of $1,250-with interest from November 14, 1898,” is admissible in evidence, and shows a valid judgment rendered by such court, p. 324.</p> <p>3. Corporations. — Territorial Limitations. — A corporation has no legal right to transact business outside of the jurisdiction creating it, but may do so by comity, p. 326.</p> <p>4. Same. — Territorial Restrictions. — Since a corporation can not by legal right transact business outside of the jurisdiction creating it, a foreign jurisdiction may impose any restrictions it desires upon the transaction of business by such corporation, p. 327.</p> <p>5. Same.- — Service.—Foreign Statute. — Service on a foreign insurance corporation by leaving a copy of the summons with the state insurance commissioner is valid where the statute requires such foreign company to agree to such service as a condition precedent to its right to do business in such state, p. 327.</p> <p>6. Constitutional Law. — Service on Foreign Corporation. — A statute providing that as a condition precedent to a right to transact business in such state, a foreign insurance company shall agree that service may be had on such company by leaving summons with the state insurance commissioner, is not in violation of the 14th amendment to the federal Constitution, p. 328.</p> <p>7. Corporations. — Territorial Restrictions. — Presumption.—A foreign corporation is presumed to assent to restrictions imposed by law by the fact of transacting- business in the state imposing the restrictions, p. 328.</p> <p>8. Pleading. — Complaint.—Sister State Judgment. — Jurisdiction.— Burden. — A complaint upon a judgment of a sister state which sets out a transcript showing that the trial court had a judge, sheriff and clerk and seal and that it was a court of record is good, since general jurisdiction is presumed therefrom, and the burden of showing want of jurisdiction is on defendant, p. 329.</p> <p>9. Judgment. — Sister State. — Conolusmeness.—A judgment conclusive of the rights of parties in a sister state is conclusive in this State by virtue of article 4, §1, of the federal Constitution, p. 330.</p> <p>10. Same. — Sister State. — Collateral Attach. — A judgment of a court of general jurisdiction of a sister state is not subject to a collateral attack in this State, where no law of such sister state is pleaded or proved showing that such judgment is subject to such an attack in such sister state, p. 330.</p>

Erom Greene Circuit Court; Orion B. Harris, Judge. Action by Lila Staggs as administratrix of tbe estate of Jobn Staggs, deceased, against tbe Consolidated Stone Company. From a judgment for plaintiff, defendant appeals. Appealed from Appellate Court under §133Tj Burns 1901, Acts 1901, p. 565, §10.

Erom Superior Court of Madison County; Henry C. Ryan, Judge. Action by Elizabeth S. Tappen and others against Allen B. Eshelman and another*. Erom a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §13.37u Bums 1901, Acts 1901, p. 590.

<p>1. Contracts. — Statute of Frauds. — Defense.—Third Parties. — The statute of frauds does not invalidate an oral contract for the sale of real estate, but denies the parties the right to enforce same in an action, and the right to plead such statute is personal to the parties and is not available to strangers thereto, p. 347.</p> <p>2. Deeds. — Contract of Sale. — Vesting of Title. — The equitable title to real estate vests in the purchasers when a contract of sale is made, and so remains even though at the request of one of such purchasers the deed is taken in the name of one under an oral agreement to quiet the title thereto and then cause a transfer to be made to both and though such one became indebted and insolvent before such latter conveyance was consummated, and the rights of such purchasers and such creditors are to be considered as though the deed to both purchasers had been made as of date of contract, p. 348.</p> <p>3. Fraudulent Conveyances. — Insolvency.—To set aside a, conveyance as fraudulent the creditor must prove that when such conveyance was made the debtor did not have enough property subject to execution to pay his then existing debts, and that he had no property subject to execution at the time suit was brought, p. 348.</p> <p>4. Same. — Evidence.—A decree setting aside a sale of land to tenants by the entirety as fraudulent against creditors of one of such tenants is erroneous where the evidence shows that such tenants contracted for such land and partly paid for same before the indebtedness against the one was contracted and that the deed to such property was taken in the name of such debtor only for the purpose of quieting the title thereto and as soon as that was done the title was conveyed to both, and where there is a failure to show that there was a fraudulent intent at the time of the contract of purchase, p. 348.</p>

<p>1. , Evidence. — Agency.—Conclusion.—The questions, “You may state whether or not you had any authority from defendant to enter into a contract with the plaintiff whereby the company would be bound, or to bind the company to pay the plaintiff $40 a month until he had recovered from the injury,” and “What was your authority from the company — what authority did you have?” were properly rejected by the trial court, since their answers must necessarily be conclusions, and be a usurpation of the province of the jury. p. 353.</p> <p>2. Same. — -Agency.—Authority.—The facts constituting the agency or authority to do a thing are admissible in evidence, but a question which must be answered by a conclusion or inference is improper, since the jury can draw the conclusions, and inferences as well as the witness, and under the law that is their exclusive right, p. 354.</p> <p>3. Same. — Principal and Agent. — Communications in Absence of Plaintiff. — A letter written by the agent to the principal in explanation of a release executed by plaintiff, and conversations between such principal and such agent, all in the absence of plaintiff, concerning a settlement made by such agent with plaintiff, are incompetent where there was no question of ratification or estoppel in the case. p. 355.</p> <p>4. New Trial. — Evidence.—Sufficiency.-—A new trial will not be granted to defendant in a case where plaintiff and his wife affirm the execution of an oral contract in release of a cause of action that defendant would pay plaintiff as long as he was unable to work on account of injuries received, and the defendant’s agent denies same, but admits the release and payment of a nominal sum, the agency to settle being admitted, and-no notice of any limitations as to the terms being communicated to plaintiff, since the powers of the agent are presumed to be coextensive with the business in which such agent is engaged, p. 356.</p> <p>5. Principal and Agent. — Authority of Agent. — Inference.—By inference of law an agent has authority to do any and all acts necessarily incident to the performance of the duty entrusted to him by his principal, p. 357.</p>

<p>1. Appeal and Error. — Supreme Court Rules. — Briefs.—Faets Admitted. — A statement of fact made in appellant’s brief, unless denied by appellee in his brief, will be taken as correct, p. 359.</p> <p>2. Municipal Corporations. — Taxation.—Water and Light. — Time of Levy for. — Taxes for the payment of water and light can not be levied by a municipal corporation in advance of a contract therefor, and if so levied, may be enjoined, p. 359.</p>

<p>Erom Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Hal Woodward against the Chicago', Indianapolis and-Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.</p>

<p>1. Appeal and Error. — Subsequent Appeal.- — Law of the Case. — The law of the case as declared in a former appeal does not control a decision on the sufficiency of the evidence on a subsequent appeal where there is additional material evidence on the subsequent trial, p. 371.</p> <p>2. Master and Servant. — Unguarded Machinery. — Factory Act.— Contributory Negligence. — Where the evidence shows that plaintiff, 15 years old, was set to work with an unguarded bit to drill holes in chair backs, and that after drilling the necessary holes he removed such backs by passing one 'hand under the bit, and while so doing his shirt sleeve caught on such bit by reason of its having no guard, and his arm was severely injured, the question of contributory negligence is for the jury. p. 371.</p> <p>3. Negligence. — Contributory.—When a Question of Fact for the Jury. — Where there is any dispute as to the controlling facts, and any room for different conclusions by reasonable men, the question of . contributory negligence is for the jury. p. 372.</p> <p>4. Master and Servant. — Factory Act. — Violation. ■ — ■ Servant’s Knowledge. — The fact that the servant knows of the violation of the factory act by the master does not make the servant assume the risk, p. 374.</p> <p>5. Same. — Factory Act. — Dangers. — Contributory Negligence. — Where the servant is subjected to a constant danger on account of the master’s violation oí the factory act, the question of the servant’s contributory negligence is ordinarily one of fact for the jury. p. 374.</p> <p>6. Evidence. — Explanations of Testimony at Former Trial. — Explanations by the witness of his testimony at a former trial are admissible at a subsequent trial, p. 374.</p> <p>7. Trial. — Instructions.—Violation of Factory Act. — Harmless Error. —Courts will hesitate" to reverse on the ground of instructions regarding tl)e duty of the master to guard machinery, though the instructions be erroneous, where the evidence of the master’s violation of the factory act seems conclusive, p. 374.</p> <p>8. Appeal and Error. — Supreme Court Rules. — Instructions.—Brief. —'Appellant’s brief should set out the instructions complained of in accordance with Supreme Court rules in order that each judge may be able to comprehend the exact question involved, and a statement of the legal effect of the instructions is not sufficient, p. 375.</p>

<p>1. Pleading. — Complaint.—Exhibits.—Where a complaint alleges that the adjuster’s agreement is “made a part hereof and attached hereto,” and such agreement is copied into the transcript immediately following the complaint, such complaint includes such agreement as a part thereof, p. 377.</p> <p>2. Same. — Complaint.—Contracts.—Performance on Plaintiff’s Part. —An allegation that plaintiff “has fully complied with all the requirements, stipulations, agreements and conditions on her part to be performed” is sufficient to show that plaintiff has done everything required of her by the contract, p. 378.</p> <p>3. Same. — Complaint.—Insurance.—Ownership.—A complaint alleging that “said property * * * was the property of plaintiff” and that “a fire occurred * * * in which certain articles of said property belonging to plaintiff * * * were damaged,” etc., is sufficient, as against a demurrer, to show ownership, p. 378.</p> <p>4. Same. — Complaint.—Insurance.—Value.—A complaint against a fire company which shows that the plaintiff and the defendant’s adjuster executed an agreement as to the value of the property and damage, which agreement is made part of the complaint, and which shows that on inquiry such adjuster said there was nothing further for plaintiff to do, and that defendant would pay the agreed sum, is sufficient as against the objection that the value of the property is not shown, p. 378'.</p> <p>5. Appeal and Error. — Amendment.—Bill of Exceptions. — Where the trial court on November 10 refused to permit a second paragraph of answer to be filed and ten days’ time was given in which to file a bill of exceptions, and a bill was signed and filed on December 4, such bill is not in the record, p. 380.</p> <p>6. Same. — New Trial. — Additional Answer. — Refusal to Permit Filing. — How Assigned. — The refusal to permit defendant to file an additional paragraph of answer does not constitute a cause for a new trial, but must be assigned as error independently on appeal, p. 380.</p> <p>7. Same. — Bill of Exceptions. — Extension of Time for Filing After Term. — The trial judge has no power after the term at which a motion for a new trial is overruled either to grant time for filing a bill of exceptions or to extend the time for filing such bill, and a bill signed under an order so made is not in the record, p. 380.</p>

<p>From Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Action by Richland School Township against Jeremiah Overmyer. From a decree for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.</p>

From Washington Circuit Court; W. C. Utz, Special Judge. Action by John A. Campbell as administrator of the estate of Yan E. Noblett, deceased, against Matilda E. Field. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under subdivision 2, §1337] Burns 1901, Acts 1901, p. 565.

<p>Erom Wells Circuit Court; Edwin G. Vaughn, Judge.</p> <p>Action by Theodore Hardendorf against the Et. Wayne Traction Company. Erom a judgment on a verdict for plaintiff for $1,600, defendant appeals. Transferred from Appellate Court under §133711 Burns 1901, Acts 1901, p. 590.</p>

<p>Prom Blackford Circuit Court; Edwin C. Vaughn, Judge.</p> <p>Action by Walter M. Davis against tbe Mercer Lumber Company. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under §1337u ' Burns 1901, Acts 1901, p. 590.</p>

<p>1. Pleading. — Demurrer.—Grounds.—A demurrer must assign some statutory ground, p. 427.</p> <p>2. Evidence. — Libel.—Retraction.-—A retraction published by a newspaper is competent evidence for defendant in an action against the owners of such paper for damages for libel, p. 427.</p> <p>3. Trial. — Instructions.—Record.—The presumption, in the absence of an affirmative showing by the record, is that instructions refused were not presented before the argument in the cause began, and therefore were properly refused, p. 428.</p> <p>4. New Trial. — Instructions.—Exceptions.—The assigning of the giving of an instruction as a reason for a new trial presents no question where no exception was reserved to such giving, p. 429.</p> <p>5. Trial. — Instructions.-—-Harmless Error. — An instruction that “if the jury believe” certain enumerated facts “from the evidence” and which wholly failed to inform the jury the purpose or effect of such evidence was harmless, p. 429.</p> <p>6. New Trial. — Damages.—Insufficiency.—A new trial will' not be granted on account of-the smallness of damages assessed by the jury, p. 429.</p> <p>7. Libel. — Damages.—Exemplary.-—A libel which may be the subject of a criminal prosecution will not subject its author to the payment of exemplary damages, p. 430.</p> <p>8. Appeal and Error. — Nominal Damages. — The Supreme Court will not reverse a cause where the damages recoverable are nominal, p. 430.</p> <p>9. Same. — Constitutional Question. — The Supreme Court will not decide a constitutional question, when the decision can be placed on other grounds, p. 430.</p>

Erom Newton Circuit Court; Charles W. Hanley, Judge. Petition by Lewis Kenover and others for the establishment of a public highway against which Isaac Y. Speck remonstrates. From a judgment establishing such highway, remonstrant appeals. Transferred from Appellate Court under §133^1 Burns 1901, Acts 1901, p. 590.

<p>Erom Lake Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by John H. Olay aud wife against tbe Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Erom a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Susannah E.v Fudge against Henry M. Marquen. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Courts. — Jurisdiction. — Grime Committed in Another County.— The Vanderburgh Circuit Court has jurisdiction to try a criminal case wherein the defendant was charged with the commission of a crime in such county, when in fact such crime was committed in a different county, p. 458.</p> <p>2. Criminal Law. — Indictment.—Wrong County. — In the absence of a statute authorizing the changing of the venue of an indictment in which defendant is charged with the commission of an offense in the county in which the indictment was returned, when in fact it was committed in a different one, defendant is entitled to a verdict of not • guilty, and such verdict would bar another prosecution in that county, but not in another county, p. 459.</p> <p>3. Constitutional Law. — Criminal Procedure. — Changing Venue of Indictment. — Section 1900 Burns 1901, §1831 R. S. 1881, providing for changing the venue of an indictment where returned in the wrong county and for transferring such cause to the proper county for trial, is not in conflict with article 1, §13, of the state Constitution providing for an impartial trial in the county where the offense was committed. p. 459.</p> <p>4. Courts. — Jurisdiction.—Transfer of Criminal Cause to County im Which Crime Was Committed. — Where an indictment was returned in the wrong county and transferred under the statute to the proper county for trial, such proper county has jurisdiction to try such cause, p. 459.</p> <p>5. Criminal Law. — Indictment.—Amendment.—By statutory authority an indictment may be amended, p. 460.</p> <p>C. Constitutional Law. — Indictment.—Right of Accused to he Tried Upon. — A defendant accused of a felony can not demand as a constitutional right to be tried only upon an indictment returned by the grand jury of the county where the offense was committed, p. 461.</p> <p>7. Statutes. — Criminal Procediire. — Conflict.—Section 1900 Burns 1901, §1831 R. S. 1881, providing for the amendment of an indictment and the transfer of the cause to the county in which the offense was committed, is not in conflict with the other provisions of the criminal code. p. 461.</p> <p>8. Criminal Law. — Procedure.—The code of criminal procedure is wholly statutory in Indiana, and subject to the restraints of the Constitution, the methods of administering the criminal law are exclusively for the legislature to determine, p. 461.</p> <p>9. Habeas Corpus. — Use.—Correction of Errors. — The writ of habeas corpus can not be used to perform the office of an appeal or writ of error, p. 461.</p>

<p>Erom Scott Circuit Court; Burt. New, Special Judge.</p> <p>Action by Daniel Wilson against the Ohio Fanners Insurance Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Superior Court of Allen County; Owen N. Heaton, Judge.</p> <p>Action by Charles M. Zimmerman and another against James Zehendner. From'a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Porter Superior Court; Harry B. Tuthill, Judge. Action by George Vandenberg against the Chicago Terminal Transfer Railroad Company and another. From a judgment on a' verdict for plaintiff against such transfer company, it appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Pleading. — Complaint.—Construction.—A complaint should berconstrued upon the theory most apparently outlined by the facts stated, p. 491.</p> <p>2. Same.. — Complaint.-—Duty.—Conclusion.—An allegation that the exercise of ordinary care required defendant to guard a machine is a legal conclusion, p. 492.</p> <p>3. Same.. — Complaint.—Negligence.—An action for negligence involves the violation of a duty, and such duty may be created by statute and its'violation be negligence per se. p. 492.</p> <p>4. Same. — Complaint. ■— Negligence. — Factory Act. — A complaint which alleges that a machine was unguarded and very dangerous; that it could have been securely guarded; that defendant negligently failed to guard, it, and that because of such negligence plaintiff was injured, states a cause of action under the factory act. p. 492.</p> <p>5. -New Tbial. — Fvidence.—Sufficiency.—Question for Jwry. — Where the plaintiff, a girl of nineteen, was put to work on a dove-tailing machine, which when the knives were sharp ran smooth, but when dull, the board vibrated, rendering it very dangerous to persons unacquainted with it, and such was not plaintiff’s usual work, and she did not understand the dangers, and while operating such machine and holding down a board passing through, plaintiff was caught by the unguarded kniyes, and injured, the question of defendant’s negligence and of plaintiff’s contributory negligence is for the jury. p. 492.</p> <p>C. New Trial.- — Failure of Proof. — Where the complain charged a failure to guard “the left end of the mandrel” and the proof showed that the “left side of the mandrel in front of the outer row of knives” was unguarded, there is no failure of proof within §396 Burns 1901. p. 495.</p> <p>7. Pleading. — Issues.—Proof.—Variance.—A party can not save any question by merely objecting to evidence 'claimed to be inadmissible for variance, but he must present the question to the court and show that he is not ready to meet such evidence, and is misled thereby, p. 495.</p> <p>8. Same. — Vai-ianee. — Duty of Court. — Where evidence technically variant is objected to, but it does not appear that the party has been misled, the court should order that the pleadings be immediately amended or should direct the facts found according to the evidence, but if no amendment was made, the court will tre.at such variance as obviated by an amendment, p. 496.</p> <p>9. Appeal and Error. — Supreme Court Rules. — Brief. — Where the page and line of the transcript where the ruling on the admission of evidence will be found are not pointed out in appellant’s brief, such error is waived, p. 496.</p> <p>10. Trial. — Instruction Covered by Those Given. — Where an instruction requested is covered by those given, the refusal to give is harmless. p. 496.</p> <p>11. Same. — Complaint.—Defense.—Burden of Proof.- — An instruction substantially stating that the burden of proving the allegations of the complaint is upon the plaintiff, and the burden of establishing the defense is upon the defendant, is correct. Gillett, J., dissents from last proposition, p. 497.</p> <p>12. Appeal and Error. — Supreme Court Rules. — Brief. — Errors alleged in giving and refusing instructions and in respect to interrogatories are waived by a failure to set out a copy or succinct statement in the brief, the purpose of the brief being to enable each judge to determine the merits of the controversy from the briefs alone, p. 498.</p> <p>13. Same. — Bill of Exceptions. — Evidence.—Improper Argument.— Error on rulings in regard to improper statements in the argument to the jury can not be presented on appeal by incorporating such statements and rulings in the bill of exceptions containing the evidence certified under the act of 1897 (Acts 1897, p. 244). p. 498.</p> <p>14. Same. — Ruling of Court Below. — Exception.-—-Where no exception was made to the ruling of the court below, no question can be raised on appeal, p. 499.</p>

<p>From Grant Superior Court; William H. Carroll, Special Judge.</p> <p>Action by Sophia O. Van Gorder against Rozella Boone and others. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §133lu Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Superior Court of Marion County (63,032) ; John L. McMaster, Judge.</p> <p>Action by John Dill against Daniel W. Marmon. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under subdivision 2, ,§1337j Burns 1901, Acts 1901, p. 565, §10, subd. 2.</p>

<p>From Wells Circuit Court; C. W. Watkins, Special Judge.</p> <p>Action by Harry B. Carrell against the Manhattan Oil Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Zacbariab T. Dean against the Tipton Light, Heat & Power Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Appeal and Error. • — • Assignment of Errors. — Waiver. — Where appellant fails in his brief to point out the,alleged defect in a complaint and fails to cite any authorities or to advance any argument thereon, such alleged error is waived, p. 536.</p> <p>2. Pleading. — Answer.—Rescission of Contract. — Rescission of contract is an affirmative defense and if relied upon must be specially pleaded, p. 536.</p> <p>3. Appeal and Error. — Neiv Trial. — Motion.—Contents.—Questions relating to the admission of evidence must be embraced in the motion for a new trial or no question is presented on appeal, p. 537.</p> <p>4. New Trial. — Real Estate. — Sale.—Commission.—Evidence.—Sufficiency. ■ — ■ Where the evidence shows that plaintiff, a real estate broker, had fully performed his contract for the sale of real estate, a verdict in his favor for his commission is sustained by the evidence, p. 537.</p>

Erom Howard Circuit Court; James F. Flliott, Judge. Action by Daniel J. Robertson against Charles A. Eord as surviving partner of the firm of Eord & Donnelly. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Benton Circuit Court; Joseph M. Rabb, Judge. Action by Joseph W. McConnell as administrator of the estate of Samuel K. Holin, deceased, and others against Charles E. Hampton as assessor of Benton county, and others, Erorn a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.

<p>From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by LaFayette M. Jordan against James Thompson. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Warren Circuit Court; Joseph M. Rabb, Judge. Petition for the establishment of a turnpike by Alfred G. Woodhams and others against which George II. Jennings and others remonstrate. From a judgment for remonstrants, petitioners appeal.

From Tippecanoe Circuit Court; Richard P. DeHart, Judge. Action by J. Lynn Van Natta and another against Alexander Ross and another. From a decree for plaintiffs, defendant Ross appeals. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.

<p>1. Landlord and Tenant. — Gas and Oil Lease. — Right of Forfeiture for Nonperformance.- — Where the landowner leases his lands to a company for a certain time in which to sink a well, and if gas or oil is found in paying quantities such lease to extend so long as gas or oil is produced in paying quantities, and if no well is drilled within such time, then such lease to continue upon the company’s payment of a certain sum semiannually, such landowner can not terminate such contract after the period for sinking the well without giving such company notice and a reasonable time in which to sink a well. p. 568.</p> <p>2. Payment. — -Option.—Exercise.—Where by contract a company had the option of payment either to the lessor or to a bank to the lessor’s credit, a payment to the bank constitutes a legal payment, even though made by draft or check, provided the lessor is credited on the books with the sum due. p. 569.</p> <p>3. Landlord and Tenant. — Lease.—;Forfeiture.-—The landlord is not in a position to demand a forfeiture of a lease where he has not given the lessee a reasonable time and notice to perform the lease, but has arbitrarily terminated such lease and forbade the lessee to enter the premises under the penalties of being a trespasser, p. 569.</p>

<p>From Delaware Circuit Court, Joseph G. Leffler, Judge.</p> <p>Action by Lizzie Hey against tbe City of Muncie. From a judgment on a verdict for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Grant Superior Court; B. F. Harness, Judge. Action by Lucina Elsea and busband against John 0. Adkins and others. Erom a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.

<p>1. Appeaí and Ekkok.— Amount of Judgment. — Dismissal.- — An appeal to the.Appellate Court will be dismissed where the judgment rendered was for Ífl7.50 and the cause of action alleged was defendant’s negligence in permitting the escape of fire from his premises, since the act of 1903 (Acts 1903, p. 280, §1) forbids the taking of such appeal.</p>

<p>From Fayette Circuit Court; Ferdinand S. Swift, Judge.</p> <p>Action by Joseph E. Moffett and wife against the Connersville Natural Gas Company. From a decree for plaintiffs, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Fraud. — When Actionable. — In order to constitute actionable fraud it must appear that the complaining party has been damaged or prejudiced thereby, p. 598.</p> <p>2. Pleading. — Fraud.—A pleading relying upon fz'aud will be judged not by epithets or characterizations, but by the facts specially set forth as constituting the wrong, p; 598.</p> <p>3. Same. — Fraud.—Presumption.—Men are preszzmed to be honest in their transactions and courts will not search the evidence in a cause for fraud unless it is specially pleaded, p. 599.</p> <p>4. Same.- — Answer. — Fraud. — Collection of Money Due Counties. —Contracts.—Whez’e the coznplaint shows a contz’act between the board of commissioners of a county and expert accountants for the collection of money due such county, and the collection by such experts of sums aggregating $3,949, and further sums aggregating , $1,489, and that such sums were turned over to such county, an answer showing that such experts, to obtain the contract, falsely represented that large sums were due such county, when in fact nothing was due, and failing to show that such alleged specific items of the complaint were not proper charges against the parties from whom collected: and failing to show that such collections were made by deceit, artifice or unfairness; and failing to show any injury, overreaching, wrong or public impolicy, such answer is bad. p. 599.</p> <p>5. Statutes.— Construction.— Boards of Commissioners.— Accountants. — Public Necessity. — Record.—-Where a board of commissioners entered into a preliminary contract for the employment of expert accountants for the collection of money due such county on a percentage, on June 6, and on June 14 such board spread of record a public-necessity order and on June 15 spread of record the complete contract, such contract is valid under the statute, §7853 Burns 1901, §5766 R. S. 1881. p. 601.</p> <p>6. Same. — Construction.— Boards of Commissioners. — Accountants. —Contracts.—Record.—A contract entered into between the board of commissioners of a county and expert accountants to recover money due such county at a certain percentage must, under §7853 Burns 1901, §5766 R. S. 1881, be spread of record by such board before such accountants act upon the same. p. 604.</p> <p>7. New Trial.- — Evidence.—Directing Verdict for Plaintiff. — Where the fact as to whether a contract was spread of record in the commissioners’ court at a certain time is material, and four witnesses testify to such fact and one testified against such fact, the direction of a verdict for plaintiff is erroneous and a new trial should be granted, p. 605.</p> <p>8. Contracts. — Board of Commissioners. — Accountants.—Validity.— A contract between a board of commissioners and expert accountants to collect all moneys due such county on a percentage is governed by the provisions of §7853 Burns 1901, §5766 R. S. 1881. Weatherhogg v. Board, eto. (1902), 158 Ind. 14, distinguished, p. 605.</p> <p>9. New Trial. — Evidence.—Negative.—The court should not direct a verdict for plaintiff where plaintiff’s evidence is positive and defend-' ant’s of a negative character, the weight being for the jury. p. 609.</p>

<p>1. New Trial. — “Findings” of the Court. — Not Sustained 6y Evidence. —Contrary to Law. — The word “finding,” as used in a- motion for a new trial, is the equivalent of the word “decision,” as used in the statute setting forth the grounds for a new trial, and properly presents the question for a review of the evidence, p. 617.</p> <p>2. Statutes. — Construction.-—Appellate Procedure. — Weighing Evidence. — The act of 1903 (Acts 1903, p. 338, §8), providing that the Supreme and Appellate Courts, when required, shall weigh the evidence on appeal and award judgment accordingly, applies -only to cases of exclusively equitable jurisdiction, p. 618.</p> <p>3. Appeal and Ebbok. — Weighing Evidence. — How Assigned on Appeal. — An assignment of error that the court erred in overruling appellant’s motion for a new trial is sufficient to entitle appellant to have the evidence weighed by the Supi-eme and Appellate Courts as provided in section eight, Acts 1003, p. 338, where one reason assigned in the motion for a new trial is that the decision is not sustained by sufficient evidence, p. 018.</p> <p>4. Statutes. — Construction.—Appellate Procedure. — Weighing Evidence. — Acts 1903, p. 338, §8, was intended to abrogate the rule that the Supreme and Appellate Courts could not weigh the evidence, but it does not mean to grant a trial de novo, nor that the courts on appeal should give no consideration to the decision below, nor to invest such courts with original jurisdiction in such causes, p. 619.</p> <p>5. Appeal and Ebkor. — Weighing Evidence on Appeal. — Burden.— Presumption. — Under the act of 1903 (Acts 1903, p. 338, §8) the party insisting that the weight of evidence is against the decision of the court below has the burden of establishing such fact clearly, the presumption being that the decision below is correct, p. 025.</p> <p>6. Same.— Weighing Evidence. — Rules for Guidance. — In weighing evidence on appeal under the act of 1903 (Acts 1903, p. 338, §8) the Supreme and Appellate Courts will give sufficient latitude to the decision below to account for the personal observations of such court in the trial, and if there be substantial conflict in the evidence, the decision below will not be set aside, p. 025.</p> <p>7. Constitutional Law. — Supreme Court.- — Rules.—Inherent Powers. — The Supreme Court has an inherent right to prescribe rules regulating the conduct of its business, and while, the legislature may prescribe rules of pleading and practice, it can not prescribe the mode and manner in which the courts shall discharge their judicial duties. p. 626.</p> <p>8. Taxation. — Omitted Property. — Revaluation.—Powers of Auditor. —The county auditor has no power to revalue property once listed, his power being confined to the listing of omitted property, p. 628.</p> <p>9. Same. — Wrongful Listing. — Burden.—The burden is on the taxpayer who alleges it, to show that the auditor has listed property which has already been listed and the taxes paid thereon, the presumption being that the auditor did his duty. p. 628.</p> <p>10. Same. — Wrongful listing by Auditor. — Evidence.—Where the evidence without substantial conflict shows that plaintiff in his tax schedule immediately after the words “all notes secured by mortgage” wrote “$16,000” and in the column headed “valuation by party” wrote “$13,000,” and such plaintiff actually owned notes of the face value of $29,000, secured by mortgage, a finding for plaintiff that he had listed all of his notes secured by mortgage is against the weight of the evidence, p. 629.</p>

<p>1. Trusts. — Disavowal. — Statute of Limitations. — In an action against a trustee, the statute of limitations begins to run at the time of the trustee’s open disavowal or repudiation of the trust, p. 639.</p> <p>2. Same. — Direct Trusts. — Stattite of Limitations. ■— The statute of limitations does not bar an action against the trustee of a direct and continuing trust, p. 640.</p> <p>3. Trial. — Special Finding. — Trusts.—Conclusion.—A special finding that the defendant’s relation to plaintiff in reference to her money and business affairs was one of “continuous trust and confidence,” without disclosing the facts, fails to establish the existence of a legal trust, such finding being a conclusion, p. 640.</p> <p>4. Tp.usts. — Indirect.—Statute of Limitations. — While the plaintiff in entrusting money to her son-in-law to loan for her did repose trust and confidence in him, still, it was not such a trust as the law denominates a direct and continuing one, against which the statute of limitations will not run. p. 640.</p> <p>5. Limitation of Actions. ■ — • Trusts. — Demand. — Where plaintiff, reposing trust and confidence in her son-in-law, gives her money to him to loan, and he loans it to insolvent persons, and it is thereby lost, a demand is not necessary as a condition precedent to maintaining an action against such son-in-law on account of such transaction, p. 641.</p> <p>6. Same.- — Demand as a Condition Prededent. — When Made. — Where a demand is a condition precedent to the right to bring an action, in the absence of a legal excuse, such demand must be made within the period limited by statute for the bringing of the action, p. 643.</p>

Erom Superior Court of Marion County (63,139); Vinson Carter, Judge. Action by Yinton A. Sample against Yolney T. Malott as receiver of the Terre Haute & Indianapolis Eailroad Company. Erom a judgment on a verdict for $10,000 for plaintiff, defendant appeals. Appealed from Appellate Court under subdivision 3, §1337j Burns 1901, Acts 1901, p. 565, §10, subd. 3.

Erom Laporte Circuit Court; John C. Richter, Judge. - Action by John D. Stoner against Theodore Swift and another. Erom a judgment for plaintiff for less than his claim,, he appeals. Transferred from Appellate Court-under §1337u Burns 1901, Acts 1901, p. 590.

From Clay Circuit Court; Presley O. Colliver, Judge. Action by Corwin E. Moudy against the Standard Pottery Company. From a judgment of the Appellate Court (Standard Pottery Co. v. Moudy, 35 Ind. App. — ) reversing a judgment for plaintiff for $3,000 and overruling a petition to modify the mandate of reversal, appellant petitions for a transfer to the Supreme Court under subdivision 2, §1337j Turns 1901, Acts 1901, p. 565, §10, subd. 2.

From Lake Circuit Court; A. C. Capron, Special Judge. Action by tbe Board of Commissioners of the County of Lake against John F. Jarneeke and others. Erom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Newton Circuit Court; Charles W. Hanley, Judge. Petition by David C. Sheetz and others for the establishment of a public highway, against which Edward E. Heath and another remonstrate. Erom a verdict for the petitioners and a judgment establishing the highway as petitioned, renionstrators appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Elkhart Circuit Court; Joseph D. Ferrall, Judge. Action by the City of Elkhart against Casper Lipschitz for the violation of a city ordinance-. From a judgment for defendant, plaintiff appeals.

<p>From Noble Circuit Court; David V. Whiteleather, Special Judge.</p> <p>Action by Jacob Kellar against Lida M. Garrigue and another. From a judgment for plaintiff, defendants appeal. Transferred. from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Statutes! — Construction.—County Treasurers. — Compensation for Collecting Town Tames. — Sections 4390 and 4391 Burns 1901, providing that a county treasurer who collects town taxes shall receive such compensation as is allowed by the county for like services, are superseded by the act of 1895 (Acts 1895, p. 319, §21) providing a flat salary for the county treasurer, p. 091.</p> <p>2. Officers.- — County Treasurers. — Compensation.—Fee and Salary Law. — Under the fee and salary law as amended in 1897 (Acts 1897, p. 171), the county treasurers are allowed a fixed salary and six per cent, oh all delinquent taxes collected, and no more. p. G92.</p> <p>3. Same. — County Treasurers. •— Collecting Delinquent Tames for Towns. — Compensation.—A county treasurer who collects delinquent taxes for towns is entitled to the six per cent, commission on such collection, p. G93.</p>

From Henry Circuit Court; John W. Headington, Special Judge. Action by Emory Hudelson and others against Lennaeus L. Hudelson and others. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by J esse J. Fry against William M. Shafor and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Orange Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Action by Oliver M. Wallace against the Southern Indiana Railway Company. From a judgment for plaintiff for $1,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Hamilton Circuit Court; J. F. Neal, Judge. Action by the Indianapolis Northern Traction Company against Millard F. Bell and wife. From a judgment for defendants, the Union Traction Company, successor to plaintiff by consolidation, appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.