Volume 165 — Indiana Reports

<p>1. Landlord and Tenant.—Gas and Oil Lease.—Forfeiture.— Where the lessee agreed to sink a gas or oil well within three months or pay an agreed sum annually until one should. be sunk, and he failed to sink such well, and in lieu thereof paid the agreed annual rental until the landlord refused longer to receive it, giving as a reason that such lessee was not developing the property and notifying it that she desired a cancelation of the lease, a failure for several months afterward to develop such property is a good ground for the forfeiture of such lease, p. 3.</p>

Erom Laporte Circuit Court; John O. Richter, Judge. Action by William F.- Porter against Edward O. Craft, for whom J. E. Seiherliug & Co. was substituted as defendant. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Jackson Circuit Court; Thomas B. ' Buskirk, Judge. Final report by Josepb Bertram as administrator of tbe estate of Bernbardt Labrman, deceased, to which Elizabeth Spray and others except. From a decree overruling such exceptions, Elizabeth Spray appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From St. Joseph Circuit Court; Walter A. Funic, Judge. Suit by Archibald G-. Graham and others against the St. Joseph & Elkhart Power Company and another. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Hamilton Circuit Court f Ira W. Christian, Judge. Petition by Isaac Jones and others for the establishment of a drain, against which Henry Plew and others remonstrate. Erom a judgment establishing the drain as petitioned, remonstrants appeal.

From Clark Circuit Court; James K. Marsh, Judge. Action by Arthur L. Gray against the City of Jefferson-ville. From a judgment on a verdict for plaintiff for $500, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. —Appeal and Error.—Certiorari.—Where the only objection urged against an answer was that it failed to set out a copy of an application, such objection will not be considered where the return to a writ of certiorari shows that a copy of such application was filed therewith, p. 34.</p> <p>2. Evidence.—Confidential Communications.—Physicians.—Statutes.—Section 505 Burns 1901, §497 R. S. 1881, providing that physicians shall not be competent witnesses “as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases,” does not prohibit a physician from testifying to the fact of his employment, and the rendition of professional services to a patient, p. 35.</p> <p>3. Same.—Insurance.—Declarations of Insured Before Delivery of Policy.—Fraud.—Where one paragraph of answer, tendering an issue of fraud of the insured, alleged that the life policy sued on was not delivered until a certain day, evidence of declarations of the insured shortly before such date as to his suffering from a severe surgical operation is admissible, p. 36.</p> <p>4. Same.—Fraud.—Where an issue of fraud is tendered, evidence of the condition, relations, conduct, acts and declarations of the parties to a life policy is admissible, p. 36.</p> <p>5. Same.—Fraud.—Insurance.—Health of Insured.—Where an issue of the fraud of insured in representing the state of his health in taking out a life policy is tendered, all declarations of the insured, not remote in time, concerning his health or in explanation of his appearance, walk or use of medicines, and also evidence concerning his physical condition shortly before and after the taking of such policy are admissible, p. 36.</p> <p>6. Same.—Insurance.—Life Policy.—Delivery.—In a suit on a life policy where one of the defenses alleges, among other things, the nondelivery of such policy until a date subsequent to the date of the policy, evidence to show the date of delivery is admissible, p. 37.</p> <p>7. Same.—Insurance.—Proofs of Death.—Explanations.—In an action on a life policy, the proofs of death furnished by the beneficiary are admissible in evidence against such beneficiary, and if they are opposed to the beneficiary’s interest, such beneficiary may offer explanations thereof, p. 37.</p> <p>8. Trial.—Fraud.—Talcing Case from Jury.—While our Constitution requires that “in all civil cases, the right of trial by jury shall remain inviolate,” and while the courts scrupulously guard against any enroachment thereon, still, where there is a total failure of proof in the evidence of the party having the burden, the court may direct a verdict for the other party to. the issue. (James v. Fowler, 90 Ind. 563; Miller v. White River School Tp., 101 Ind. 503; Hall v. Durham, 109 Ind. 434, partly disapproved.—See petition for rehearing.) p. 37.</p> <p>9. Trial.—Jury.—Invasion of Province of.—Where a verdict depends upon the credibility of the witnesses, and rests upon inferences and deductions from the facts established, it is an invasion of the province of the jury for the ¿ourt to direct a verdict, p. 40.</p> <p>10. Same.—Fraud.—Question for Jury.—In an action on an insurance policy, where the defendant answers only that the policy sued on was fraudulently procured, the presumption is that the insured acted honestly, and the defendant, to avoid the policy, must establish the fraud, and since the fraud was denied and was a fact to be deduced from other facts and circumstances shown by the defendant’s evidence, it was error for the court to take that question from the jury, the court’s right to pass upon the weight of the evidence being reserved until invoked by a’ . motion for a new trial, p. 40.</p> <p>11. Same.—Directing Verdict.—Federal Court Fule.—The rule as to directing verdicts is different in the federal courts from that of the Indiana courts, p. 42.</p> <p>12. Same.—Directing Verdict for Defendant.—Where plaintiff has the burden of proof and wholly fails to furnish proof on a material point, the court may direct a verdict for defendant. Oleson v. Lake Shore, etc., F. Co., 143 Ind. 405 and Weis v. City of Madison, 75 Ind. 241, approved, p. 42.</p>

Erom Owen Circuit Court; David E. Watson, Judge pro tern. Action by the State of Indiana, ex rel. Board of Commissioners of the County of Owen, against Joseph B. Workman and others. Erom a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Trial.—Stipulations.—Validity.—Stipulations by parties or their attorneys, in the trial of a cause, will be enforced by the courts, unless they are unreasonable, contrary to good morals, or contrary to public policy, p. 55.</p> <p>2. Same.'—Stipulations.—Limiting Question for Jury.—A stipulation, in an action on an accident policy, that the only question to be litigated is that of the cause of decedent’s death, is not objectionable, and such stipulation is a waiver of any other defense, p. 55.</p> <p>3. Pleading.—Complaint.—Stipulations.—Effect.—A stipulation, in an action on an accident policy, that the only question to be litigated shall be the cause of decedent’s death, waives any objection to the complaint based upon facts impliedly admitted by such stipulation, p. 55.</p> <p>4. Insurance.'—Accident.- — Proximate Cause. — An accident' policy, limiting the company’s liability to “bodily injuries effected through external, violent and purely accidental causes— such injuries as shall, solely and independently of all other causes, necessarily result in death,” relates to proximate and not to remote causes, p. 59.</p> <p>5. Trial.—Jury.—Question for.—In an action on an accident policy, where two or more causes contribute to the injury, or the facts are such that equally prudent persons can draw different conclusions, the question, which of the causes is the efficient, dominating, proximate cause of such injury, is for the jury. p. 60.</p> <p>6. Insurance.—Accident.—Proximate Cause.—New Trial.—Evidence.—Where the evidence showed that assured, in excellent health and with no symptoms of disease, while walking along the sidewalk, struck his toe against a protruding water box, causing a violent fall; that the symptoms of cerebral hemorrhage immediately developed and continued until assured’s death nineteen days later; that the post-mortem revealed that a tumor existed surrounding about two inches of the right middle cerebral artery, and there was expert evidence that the death was the result of an arterial blood clot where such tumor was located, cutting off the blood supply, the jury was warranted in finding that the fall was the immediate, dominant and proximate cause of assured’s death, p. 60.</p> <p>7. Same.—Accident.—Disease.—Proximate Cause.—Though an accidental fall would not have proved fatal to assured, except for the weakening of a cerebral artery by a tumor surrounding a portion of the same, still such fall may be the proximate cause of such death, p. 62.</p> <p>8. New Trial.—Evidence.—Failure to Move to Strike Out.-—■ Appeal and Error.—Where evidence is voluntarily given by a witness, without invitation by the appellee or the court, and appellant fails to move to strike it out or withdraw it from the consideration of the jury, no question can be raised thereon on a motion for a new trial or on appeal, p. 64.</p> <p>9. Same.—Evidence.—Admission of.—Exception.—Where defendant moved to strike out an improper answer by a witness for plaintiff, but in the motion for a new trial assigned as a reason therefor that the court erred in admitting such answer in evidence, no question is presented, p. 66.</p>

<p>Erom Clark Circuit Court, Harry C. Montgomery, Judge.</p> <p>Action by Charles Perry against James S. Pernet. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Suit by Henry Ray against Charles Baker and wife. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Evidence. — Bastardy. ■—■ Witnesses.—Admissions.—Impeachment by Contradictory Statements.—The testimony of defendant in a bastardy proceeding is competent to show that a witness called by him had admitted to him, on their return home from a visit to relatrix on the night of the conception of the child, that he, the witness, had intercourse with relatrix on such night, where such witness, on such trial, had denied such intercourse or. any opportunity therefor and the making of such admission, p. 96.</p> <p>2. Same.—Bastardy.—Impeachment of Relatrix by Specific Acts. —Eelatrix, in a bastardy case, can not be impeached by showing her admission of specific acts of intercourse with others than defendant at times remote from the date of conception, p. 97.</p> <p>3. Same.—Bastardy.—Impeachment of Relatrix by Showing Opportunity.—Eelatrix, in a bastardy case, can not be impeached by showing her admission that she and another than defendant were alone on the night of the conception of such ■ child, p. 98.</p> <p>4. Evidence. — Bastardy. — Intercourse with Others.—Impeachment.—-Defendant, in a bastardy case, may introduce evidence of the intercourse of relatrix with others upon or near the date of conception, and may compel relatrix to testify to such, and if she deny same, she may be impeached by proof of contradictory statements, p. 98.</p> <p>5. Same.*—Bastardy.—Intercourse with Others.—Opportunity.— Question for Jury.—Evidence is competent on behalf of the defendant, in a bastardy case, to show that relatrix had intercourse with another than defendant at times prior to conception, and that she had an opportunity for intercourse with such other person on the night of conception, the inference therefrom being for the jury. p. 98.</p> <p>6. Same.—Bastardy.—Admissions of Relatrix.—A letter, written by relatrix in' a bastardy case to defendant, admitting intercourse with another at former times and an opportunity therefor on the night of conception, is competent evidence for defendant, where relatrix, on the trial, denies such intercourse and such opportunity, p. 99.</p>

<p>From Daviess Circuit Court; M. S. Hastings, Special J udge.</p> <p>Action by tbe Board of Commissioners of tbe County of Daviess against John Daily. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>Prom Clark Circuit Court; Perry E. Bear, Special Judge.</p> <p>Action by John W. Annadall against the Union Cement & Lime Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Fayette Circuit Court; Noah 8. Givan, Special Judge. Prosecution by the State of Indiana against Frank Eby for assault and battery with intent to murder. From. a judgment convicting for assault and battery and assessing a fine of $2,000, defendant appeals.

<p>From Sullivan Circuit Court; Orion B. Harris, Judge.</p> <p>Action by Leone Draper against the Evansville & Terre Haute Railroad Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §133Ju Burns 1901, Acts 1901, p. 590.</p>

Erom Superior Court of Tippecanoe County; H. H. Vinton, Judge. Action by the State of Indiana, on the relation of James K. Risk, against Harvey II. Cheney as county auditor of Tippecanoe county. From a judgment for plaintiff, defendant appeals.

<p>Erom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Elmer C. Forman against tbe Southern Indiana Railway Company. From a jiidgment on a verdict for $600, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Kush. Circuit Court; Douglas Morris, Judge.</p> <p>Action by Menzo J. Meeker against the P. H. & F. M. Eoots Company. Erom a judgment on a verdict for $4,000, defendant appeals. Transferred from Appellate Court</p> <p>under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Appeal and Eeeoe.—Transcript.—Alterations.—Certiorari.— Unauthorized alterations of a transcript will not warrant the dismissal of an appeal, but the transcript as corrected by the return to a writ of certiorari will be considered as the true record of the cause, p. 141.</p> <p>2. Same.—Supreme Court Buies.—Briefs.—Error of the trial court in overruling a demurrer is not available on appeal where neither such demurrer nor its substance is set forth in appellant’s brief, p. 142.</p> <p>3. Same.—New Trial.—Motion to Make Specific.—How Assigned.—The overruling of a motion to make the complaint more specific is not a reason for a new trial, but must, be assigned as error independently on appeal, p. 142.</p> <p>• 4. Depositions.—“Disinterested Person.”—Certificate of Notary. —Evidence. — Statutes. — The certificate of the notary to a deposition, that it was taken down by a “disinterested person,” is not prima facie evidence of such fact, since the statute (§433 Burns 1901, §429 R. S. 1881) makes no provision that such fact shall be certified, and the statute (§8040 Burns 1901, §5965 R. S. 1881) provides that such certificate shall be evidence only of such facts as are authorized by law to be stated in such certificate, p. 143.</p> <p>5. Same. — Taking of. — “Disinterested Person.” — Statutes.—A deposition, taken before a 'proper notary and taken down in shorthand and typewritten by a clerk of plaintiff’s attorneys, should be suppressed, since such clerk was not a “disinterested person” within the meaning of §433 Burns 1901, §429 R. S. 1881. p. 144.</p> <p>6. Same.—Taking of.—Student or Clerk in Office of Attorney.— A student or clerk in the office of an attorney. engaged in a cause was disqualified, in the chancery practice, from taking down the depositions of witnesses in such cause, p. 145.</p> <p>7. Same.—Suppression.—Waiver.—Defendant does not waive his right to suppress a deposition, taken down by an improper person, by reason of the fact that he appeared and cross-examined the witness whose deposition was taken, p. 147.</p> <p>8. Same.—Improper Taking.—Suppression.—The fact'' that a deposition, taken down by an improper person, was true and correct does not justify the court in overruling a motion to suppress, p. 147.</p> <p>9. Appeal and Error.—Weighing Evidence.—Where the evidence is such that but one conclusion can be drawn therefrom, the Supreme Court will not be bound by an adverse decision of the trial court, p. 147.</p> <p>10. Same.—Instructions.—Failure to Show All Are in Record.— A failure to show that all the instructions are in the record is fatal to any question concerning such instructions on appeal, p. 147.</p>

<p>l. Indictment and Information.—Grand Jury.—Convoking at Adjourned Term.—The fact that the grand jury which returned the indictment was impaneled at an adjourned term of the court is not a sufficient ground for quashing such indictment. Wilson v. State, 1 Blackf. 428, distinguished, p. 150.</p> <p>■ 2. Same. — Grand Jury. — Adjourned .Term. — Presumption. — Where the proceedings relative to an indictment purport to have been held at an adjourned term, the presumption is, nothing appearing to the contrary, that such term was regularly held. p. 151.</p> <p>3. Same. •—■ Motion to Quash. — Grand Jury. ■—• Qualifications. — Abatement.—Where an indictment purports to have been returned by a legal grand jury, questions concerning the qualifications of its members and of their being regularly charged and • sworn, except such as could have been presented by a challenge, if opportunity had existed, can not be raised by a motion to quash the indictment, but should be raised by a plea in abatement.' p. 151.</p> <p>4. Same.—Separate Counts.—Aider.—-Where the first coufit of an indictment properly sets out the impaneling of the grand jury in the proper county, and the second count recites that “said grand jury further find and present,” such second count is aided by the first and is sufficient, p. 152.</p> <p>5. Same.—Murder.—“Means Unknown.”—An indictment charging that the murder was committed “by means and ways unknown to this grand jury” is good. p. 152.</p> <p>6. Indictment and Information.—Good and Bad Counts.—Judgment.—Presumption.—A judgment of conviction, upon an indictment containing good and bad counts, is presumed, in the absence of the evidence, to rest upon the good ones. p. 152.</p> <p>7. New Trial.—Murder.—Insanity.—Failure to Plead.—Newly-Discovered Evidence.—A new trial will not be granted in a murder case because of newly-discovered evidence as to defendant’s insanity where no plea of insanity has been made in the cause. ,p. 156.</p> <p>8. Same.—Negligence.—Good Faith.—Affidavits for a new trial on the ground of newly-discovered evidence must completely rebut the want of good faith and all inferences of negligence in the procurement of such evidence for such trial, such applications being regarded with disfavor, p. 156.</p> <p>9. Same.—Negligence.—Where the affidavit, in support of a motion for a new trial on the ground of newly-discovered evidence, shows that defendant’s attorney failed to make inquiry as to defendant’s alleged insanity from those who would be presumed to know most about defendant, the inference of negligence is not rebutted, p. 158.</p> <p>10. Trial.—Murder.—Insanity.—Continuance to Procure Evidence.—It will be presumed that upon a seasonable or even a belated application, by counsel for defendant in a charge of murder, for time to procure evidence as to defendant’s sanity, a continuance for a reasonable time would have been granted, p. 159.</p> <p>11. New Trial.—Newly-Discovered Evidence.—Effect on Result. —Where newly-discovered evidence is such that the result of a new trial would probably not be different from the former one, the application therefor will be denied, p. 159.</p> <p>12. Same.—Newly-Discovered Evidence.—Character of.—Where the application for a new trial on the ground of newly-discovered evidence fails to set out any definite evidence except that of one witness who negligently failed to disclose same to defendant’s attorney before the trial when she had abundant opportunity, such application will be denied, p. 160.</p> <p>13. Appeal and Error.—Evidence Not in Record.—New Trial.— Newly-Discovered Evidence.—Error of the trial court in overruling a motion for a new trial on the ground of newly-discovered evidence will not be reviewed in the absence of the evidence in said cause, p. 160.</p>

<p>Erom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by George Stapf against the First National Bank of Mishawaka. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Constitutional Law. — Statutes. — Title. — Construction. — Where it appears from an inspection of hoth the title and purview of an act that the provisions of the act are fairly referable to one general subject and that subject is clearly expressed in the title, the act is valid, though more than the general subject is expressed in the title, p. 167.</p> <p>2. Same.—Statutes.—Title.—Office of.—The exclusive office of the title of an act is to apprise the lawmakers of the subject of legislation on which they are called to vote, the details being properly relegated to the purview of the act. p. 168.</p> <p>3. Same.—Statutes.—Title.—Details.—Where details are placed in the title of an act along with the general subject they will he treated as surplusage, unless a clear intention is shown to limit the operation of the act to such details, p. 168.</p> <p>4. Same.—Statutes.-—-Title.—Telegraphs and Telephones.—The title, “An act prescribing certain duties of telegraph and telephone companies,” is sufficient to give notice to legislators that specific duties will be imposed by such act and that penalties will be provided for the enforcement of such duties, p. 169.</p> <p>5. Same. — Statutes. — Title. —• Telegraphs and Telephones. —• Where the title of a statute is “An act prescribing certain duties of telegraph and telephone companies, prohibiting discrimination between patrons, providing penalties therefor,” the second clause, “prohibiting discrimination between patrons,” is a specification included within the first, and “providing penalties therefor” is surplusage, p. 169.</p> <p>6. Constitutional Law.—Statutes.—Legislative Purpose.—In the construction of a statute the courts will look to the legislative purpose as an aid. p. 170.</p> <p>7. Statutes.—Construction.—Telegraphs and Telephones.—Telegraph companies are liable for the penalty provided by statute (§§5511, 5512 Bums 1901, Acts 1885, p. 151) whether their failure to deliver messages be due to wilfulness or negligence, p. 170.</p> <p>8. Woeds and Pheases.—“Transmission.”—Telegraphs and Telephones.—Statutes.—The word “transmission,” as used in the statute (§§5511, 5512 Burns 1901, Acts 1885, p. 151) prescribing the duties of telegraph and telephone companies, includes delivery, p. 171.</p>

From Superior Court of Marion County (46,388) ; John L. McMaster, Judge. Action by Jacob Rewman and others against Harry B. Gate&. From a judgment for defendant on his counterclaim, Jacob Rewman and another, as surviving partners, appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590. (Appealed to United States Supreme Court.)

From Allen Circuit Court; Edward O’Rourke, Judge. Action by the State of Indiana, on relation of Arthur C. ■ Fast and others, against William A. Popejoy and others. From a judgment for defendants, plaintiff appeals.

<p>!• JURY.—Homicide.—Death Sentence.—Conscientious Scruples. —Examination of Jurors.—The prosecuting attorney has the right to ask a proposed juror on his voir dire whether he would as readily inflict a death sentence as life imprisonment in case defendant should be found guilty of murder in the first degree. p. 181.</p> <p>2. Evidence.—Revolver Purchased by Colored Man.—Admissibility.—Where the evidence showed that defendant, a colored man, had killed his wife with a revolver, evidence by a merchant, that she sold such revolver to a colored man, although she could not identify defendant as the person, is admissible, p. 182.</p> <p>3. Same.—Criminal Intent.—Cross-Examination of Defendant.— Discretion of Trial Court.—Where defendant is examined in chief as to his intent in the commission of an act, the prosecuting attorney may go into any phase of such intent on cross-examination, the extent thereof being largely in the discretion of the trial court, which discretion can not be interfered with except for the abuse thereof, p. 183.</p> <p>4. Same.—Witnesses.—Feelings.—Cross-Examination.—Where a witness testified in chief that she and the deceased were good friends, it was harmless error to refuse to permit defendant on cross-examination to ask her “if she was not a friend to the deceased.” p. 183.</p> <p>5. Criminal Law.--Argument to the Jury.—Misconduct of Counsel.—Where defendant, a colored man, was on trial for the murder of his wife, and the prosecuting attorney in his argument to the jury said: “In this case, gentlemen of the jury, there is no race question or race prejudice to be considered by the jury. The fact that this man is a colored man should not be taken into consideration by the jury. White men have been hung for less atrocious crimes than this,” defendant is not en-entitled to have the submission of the cause or the verdict set aside, the court having withdrawn such remarks from the jury and instructed them to “make up their verdict from the evidence and the law in the case.” p. 184.</p>

<p>1. Constitutional Law.—Statutes.—Title.—How Construed.— The title of the act of 1903 (Acts 1903, p. 140), providing that certain officers shall be paid, beginning with January 1, 1900, their “salaries now provided by law,” must be construed in the light of the laws existing, which relate to such salaries, the word “salaries” relating to the annual amount fixed to be paid, and not to the contingency of its payment, p. 188.</p> <p>2. Same.—Statutes.—Title.—Subject-Matter.—The title of the act of 1903 (Acts 1903, p. 140), providing for the payment of salaries to certain officers from and after January 1, 1900, properly expresses the subject-matter of such statute, as provided by article 4, §19, of the Constitution of Indiana, p. 189.</p> <p>3. Same.—Statutes.—Amendments.-—-What Are.—The act of 1903 (Acts 1903, p. 140), providing for the payment of salaries to certain officers from and after January 1, 1900, is not an “amendment” of any statute within the meaning of article 4, §21, of the Indiana Constitution, although it refers to existing laws and to some extent modifies the same by implication, p. 190.</p> <p>4. Same.—Statutes.—Local or Special.—Where a fee and salary law is not local or special within the inhibition of the Constitution, a subsequent act, which in effect modifies certain contingencies in the payment of certain officers, can not be held invalid. p. 190.</p> <p>5. Same.—Statutes. —■ Officers. — Compensation. — The question whether a fee and salary law is “in proportion to the population and necessary services required,” as provided by article 4, §22, of the Indiana Constitution, is usually for the legislature, and its decision will not be set aside except for a gross departure therefrom or a manifest abandonment or defiance thereof, p. 190.</p> <p>6. Constitutional Law.—Statutes.—Equal Privileges.—The act of 1903 (Acts 1903, p. 140), providing for the payment of salaries to clerks and sheriffs from and after January 1, 1900, does not grant unequal privileges as inhibited by article 1, §23, of the Indiana Constitution, p. 191.</p> <p>7. Officers.—Public.—Salaries.—Powers of Legislature.—Unless restrained by the Constitution, the legislature may increase or diminish the compensation of a public officer, but after the salary is earned, it can not be taken away. p. 191.</p> <p>8. Constitutional Law.—Statutes.—Impairing Obligation of Contracts.—The act of 1903 (Acts 1903, p. 140), providing for the payment of salaries to clerks and sheriffs from and after January 1, 1900, does not conflict with article 1, §10, of the federal Constitution, providing that no act shall be passed impairing the obligation of any contract, p. 191.</p> <p>9. Same,—Statutes.—Public Funds for Private Purposes.—The act of 1903 (Acts 1903, p. 140), providing for the payment of the salaries of clerks and sheriffs from and after January 1, 1900, is not open to the constitutional inhibition of using public funds for private purposes, p. 192.</p>

<p>1. Statutes.-—- Title.—Construction.—The title of an act will be construed, if possible, to sustain the act and effectuate the intention of the legislature, even though the most common meaning of the words used can not be given them. p. 195. ^</p> <p>2. Same.—Title.—“Officers.’’—The title of the act of 1903 (Acts 1903, p. 140), providing for the payment of salaries from and after January 1, 1900, to certain “officers,” is broad enough to cover the provisions in the purview of such act, providing for the payment of such salaries “to the present officers” and “to those whose term of office has expired.” p. 196.</p> <p>3. Constitutional Law. •—• Statutes.—Title.—Limitations.—The title of the act of 1903 (Acts 1903, p. 140), providing for the payment of salaries to certain officers and “limiting the time of payment * * * to January 1, 1900,” limits the operation of said act to such period, p. 196.</p> <p>4. Pleading.—Complaint.-—Partial Relief.—A complaint, sufficient as to any part of the relief sought, is good as against a demurrer for want of facts, p. 197.</p>

<p>From Perry Circuit Court; C. W. Cook, Judge..</p> <p>Action by Thomas J. Lyons against the Board of Commissioners of the County of Perry. From a judgment for defendant, plaintiff appeals.</p>

<p>Erom Superior Court of Yigo County; 8. O. Stimson, Judge.</p> <p>Action by Belle Wolfe against Joseph D. Eoberts and others. From a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Warren Circuit Court; Joseph M. Rabb, Judge.</p> <p>Petition by John C. Stephens as administrator of the estate of William FT. Swank, deceased, against Emily J. Taylor and others. From a decree for plaintiff, defendant Emily J. Taylor appeals. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.</p>

<p>Erom Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by James R. Trees against the Greenfield Gas Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §133Yu Burns 1901, Acts 1901, p. 590.</p>

From Perry Circuit Court; C. W. Cook, Special Judge. Suit by the American Oannel Coal Company against Emma L. Clark. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under §1337i Burns 1901, Acts 1901, p. 565, §9. (For transferring opinion, see 35 Ind. App. 65.)

<p>Erom Lagrange Circuit Court; J. D. F err all, Judge.</p> <p>Action by Mary E. Greenawaldt against tbe Lake Shore & Michigan Southern Railway Company. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Lake Circuit Court; John B. Peterson, Special Judge.</p> <p>Action by Robert H. Bartholomee against the Town of Lowell. From a judgment for defendant, plaintiff appeals.</p>

<p>From Boone Circuit Court; Joseph M. Babb, Special Judge.</p> <p>Action by tbe Home National Bank against John O. Hill. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Delaware Circuit Court; Joseph O. Leffler, Judge. Action 'by Winfield T. Durbin and others against the Northwestern Scraper Company and others. Erom a decision of the Appellate Court (36 Ind. App. —) reversing a judgment for two of such defendants, such defendants appeal.

From Washington Circuit Court; Thomas B. Buslcirh, Judge. Action by Lora E. Purlee against Liddie Elrod and husband. From a judgment on a verdict for plaintiff for $800, defendants appeal. Transferred from Appellate Court under §133Iu Burns 1901, Acts 1901, p. 590.

<p>Erom Huntington Circuit Court; Levi Mock, Special Judge.</p> <p>Suit by Levi Detamore against the Ohio Oil Company and another. Erom a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>Appeal and Error. —• Supreme Court Rules. ■—• Briefs. — Where appellant’s brief does not contain a copy nor the substance of the demurrer, whose overruling is alleged to be erroneous, no question is presented because of Supreme Court rule 22, clause 5, the purpose of such rule being to cause appellants to present the errors relied upon in such a way that the judges who do not have the record can determine the precise questions presented for decision.</p>

<p>From Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Action by Abraham Roseman against Robert L. Porter. From a decree denying a part of defendant’s set-off, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Newton Circuit Court; Charles W. Hanley, Judge. Suit by the State of Indiana, on the relation of Benjamin F. Davis and others, against the Board of Commissioners of the County of Newton and others. From a decree for defendants, plaintiff appeals.

Erom Lawrence Circuit Court; .James B. Wilson, Judge. Suit by tbe Southern Indiana Eailway Company against the City of Bedford and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under §1337m Burns 1901, Acts 1901, p. 565, §13.

Erom St. Joseph' Circuit Court; W. A. Funic, Judge. Suit by Lizzie L. Miller and others against Ambrose J. . Major and others. Erom a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From.Clinton Circuit Court; Samuel Ii. Artman, Special Judge. Action by Wesley Grantham (Charles W. Grantham, his administrator, being substituted) against the Chicago & Southeastern Railway Company and others. From a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court under §1337u Burns 1901, Acts 1901, p. 590. As to Davis, trustee, appeal dismissed.

From Laporte Circuit Court; John G. Richter, Judge. Action by.John IT. Sullender, by his next friend, against the Laporte Carriage Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under subd: 2, §133Tj Burns 1901, Acts 1901, p. 565, §10.

<p>Municipal Coepoeations. — Ordinances. — Street Railroads. — . Fenders.—Approval of Council.—-A municipal ordinance making it unlawful to run a street car not equipped with a. certain fender, or one equally as good “to be approved by the common council or its street committee,” is bad, since it fails to furnish a uniform rule of action and gives the power to particular persons to grant exclusive privileges.</p>

<p>1. Appeal . and Ekkok.—Assignment.—Waiver.—A failure to argue an alleged error and to set it out in the brief as one of the errors relied upon for a reversal is a waiver thereof, p. 311.</p> <p>2. Wills.—Election by Widow.—Statutes.—Under §§2491, 2505 R. S. 1881 a widow was required to make her election to take under the will by an affirmative act, the presumption, in the absence of such affirmative act, being that she desired to take under the law. p. 311.</p> <p>3. Same..—Election by Widow.—Evidence.—Where the evidence shows that the testator’s will was probated in 1872, and his. widow continued to reside on the premises until her death in 1902; that she bought and sold personal property, made repairs' and valuable improvements; that she cut timber and rendered no account thereof to the children or to the court, there is a failure to show an election by such widow to take under the will. p. 312.</p> <p>4. Sales. — Contracts. — Parol. •— Real Estate.—Evidence.—Evidence showing that a widow exercised absolute dominion over her deceased husband’s estate, real and personal; that the estate was indebted $2,000; that no administration was had on the estate and no claims presented to the heirs and no creditors complaining; that the claimant’s father, deceased’s son, admitted that the widow was by contract to pay the debts and take the . estate; that she inherited enough money at the time to pay such ‘debts; that she sold, without objection, the growing timber on such land and that she held undisturbed and undisputed possession for thirty years, warrants a finding that such widow orally purchased such real estate, p. 313.</p> <p>5. Same.—Contracts.—Statute of Frauds.—Tenancy in Common. —A parol contract of sale of real estate by one tenant in common to another is not within the statute of frauds where it is shown that the purchasing tenant took absolute dominion over the whole estate, and that her grantors retired and continued to disclaim any interest therein, and that the purchaser paid the purchase price and made valuable and permanent improvements thereon. Johns v. Johns, 67 Ind. 440, distinguished, p. 314.</p> <p>6. Tenancy in Common.—Real Estate.—Possession.—Sales.— Where the children orally contract with their mother, that if she will pay their deceased father’s debts she may take the whole estate, and she pays such debts, such children retiring from possession and yielding same to her, and disclaiming orally any interest therein, the possession so taken by thé mother is that of the whole property and not that of her former share only. p. 315.</p> <p>7. Evidence.—Motion to Strike Out.—Indefinite.—A motion to strike out all of a witness’s testimony relating to a certain fact is too indefinite, and there is no error in overruling same. p. 315.</p> <p>8. Same.—Motion to Strike Out.—Facts Developed on Cross-Examination.—-A motion to strike out certain evidence, a part of which was developed by appellant on cross-examination, can not be sustained, p. 316.</p> <p>9. Same.—Declarations Against Interest.—Hearsay.—In an action for possession of lands devised, wherein defendants claimed that the devisee had sold such lands by parol to their grantor in consideration of such grantor’s payment of testator’s debts, the declarations of the deceased devisee are admissible to show that there were debts against the devised lands, p. 316.</p>

<p>From Superior Court of Marion County (64,456) ; Vinson Carter,- Judge.</p> <p>Action by Philander H. Fitzgerald against the Aetna Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Marion Circuit Court (13,476) ; Henry Olay Allen, J udge.</p> <p>Habeas Corpus by Hattie Belle Willis against Hathaniel Barker Willis and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Habeas Corpus. — Judgment. — Appeal.—Effect.—Statutes.— Section 650 Burns 1901, §638 R. S. 1881, providing that a term-time appeal shall operate as a stay of all further proceedings on the judgment appealed from, does not give the defendant custodians of an infant child the right of retaining such custody during such appeal where the judgment awards the custody to another. Garner v. Gordon, 41 Ind. 92, overruled, p. 334.</p> <p>2. Same.—Judgment. — Appeal Bond. — Purposes.—An appeal bond, given to perfect a term-time appeal in a habeas corpus case, does not invest such appellant with the right to the custody of the subject-matter of the action, as against such judgment, but merely stays the issuance of an execution on the judgment, such judgment as to the custody of the subject-matter being self-executing, p. 337.</p> <p>3. Courts.—Jurisdiction.—Habeas Corpus.—The circuit court rendering judgment in a habeas corpus case has jurisdiction over the parties thereto and can enforce its orders any place .within the State, p. 338.</p> <p>4. Judgment.—Bes Judicata.—Habeas Corpus.—The defense of res judicata is available in habeas corpus cases, p. 339.</p>

<p>Erom Eloyd Circuit Court; William G. Utz, Judge.</p> <p>Prosecution by the State of Indiana against Ulysses G. Sutherlin. From a judgment quashing the indictment, the State appeals.</p>

<p>Erom Marion Circuit Court (10,150) ; John 8. Berryhill, Special Judge.</p> <p>Action by Harriet Westfall against Joseph Wait and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Superior Court of Madison County; Henry G. By an, Judge.</p> <p>Action by the Lippincott Class Company against the Indiana nitroglycerine and Torpedo Company and' another. From a judgment for plaintiff against such company, it appeals. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.</p>

<p>From Starke Circuit Court; John G. Nye, Judge.</p> <p>Action by Frank Stout against the Town of Winamac. From a judgment on a verdict for plaintiff for $500, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Monroe Circuit Court; James B. Wilson, Judge. Action by the State of Indiana, on the relation of Irene Freeman, against Pleasant Evans. From a judgment for plaintiff for $350, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Wabash Circuit Court; H. B. Shively, Special Judge. Action by the State of Indiana, on the relation of Frederick Barnhart and others, against Frank Ireland as trustee of Pleasant School Township. From a judgment for plaintiff, defendant appeals.

<p>1. Discovery.—Interrogatories to Party.—Corporations.—Duty to Answer.—Interrogatories to parties must be answered without evasion, and a corporation must have same answered by an agent who has knowledge of the facts, p. 384.</p> <p>2. Bailroads. — Switches.—Sidewalks.—Negligence.—A railroad company, which owns and operates a switch across a sidewalk in a municipal corporation, is liable for its negligence in the maintenance of such crossing, p. 384.</p> <p>3. Trial.—Burden of Proof.—A prima facie case made by plaintiff’s evidence stands until broken by defendant’s, p. 385.</p> <p>4. Same.—Instructions.-—Railroads.—Injuries Shortening Life.— Compensation.—An instruction, in an action for damages on account of the negligence of a railroad company, that plaintiff is not entitled to recover anything for the shortening of her life by reason of alleged injuries, but that such fact may be considered in determining the extent of heir injuries, is not erroneous where the court has also instructed that only compensatory damages can be allowed, and that damages can be given only for suffering directly traceable with reasonable certainty to the ■ negligence complained of. p. 385.</p> <p>5. Same. ■—Instructions. — When Cause for Reversal. — Instructions which do not mislead the jury will not cause a reversal, p. 387.</p> <p>6. Same.—Instructions.—No evidence to Support.—Instructions asked should be refused where there is no evidence tending to support them. p. 387.</p> <p>7. Same.—Interrogatories to Jury.—Itemizing Damages in Tort. —Interrogatories to the jury to itemize damages in negligence cases are not permissible, p. 389.</p> <p>8. Same.—Interrogatories to Jury.—Doubts.—How Resolved.— All doubts as to the meaning of an interrogatory to the jury will be resolved in favor of the general verdict, p. 389.</p> <p>9. New Trial.—Causes Therefor.—Inconsistency of Answers to Interrogatories and General Verdict.—The inconsistency of the answers to the interrogatories to the jury and the general verdict is not a cause for a new trial, p. 389.</p> <p>10. Same.—Excessive Damages.—Whether Answers to Interrogatories Considered.—Where excessive damages are alleged as a reason for a new trial, the evidence alone, and not the answers to interrogatories, can be considered, p. 391.</p> <p>11. New Trial.—Excessive Damages.—Answers to Interrogatories. —New Trial without Motion.—Where the answers to interrogatories to the jury show that the general verdict is unjust the trial court may grant a new trial for a cause not specified in the motion therefor or may grant a new trial on its own motion, p. 392.</p> <p>12. Same. — Excessive Damages. — Railroads. — A verdict for $7,500, in an action by a woman against a railroad company for damages for personal injuries, is not excessive where the proof shows that she received an oblique fracture of the knee resulting in a total collapse of the nervous system and a consequent, probably permanent, total disability, p. 392.</p>

From Pulaski Circuit Court; Truman F. Palmer, Judge fro tern. Suit by Charles Dallas and another against James E. Low and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Larceny.—Bailment.—Intent.—Evidence.—Where defendant, with the felonious intent of getting possession of a horse and of converting same to his own use, hired such horse, giving a chattel mortgage on property which he did not own, and misrepresented the purpose for which such horse should be used, and afterwards converted such horse to his own use, fled from the country and went under an assumed name, he is guilty of larceny. Lee v. State, 156 Ind. 541, followed. Stillwell v. State, 155 Ind. 552, distinguished, p. 898.</p> <p>2. Same.—Indictment and Information.—Evidence.—Variance.— How Questioned.—Where the indictment charged the larceny of one “brown mare with white face and feet,” and the evidence failed to show' that she had either white face or white feet, but no objection was made in the trial court on account of such variance, and it was not made a ground for a new trial, it will not be considered on appeal, p. 402.</p>

<p>1. Appeal and Eeeoe.'—Transcript.—Clerk’s Certificate.—Insubstantial defects in the binding of the transcript and in the clerk’s certificate thereto will be disregarded, p. 404.</p> <p>2. Parent and Child.—Custody.—Common Law.—Statutes.— Both by the common law and the statutes of this State the natural parents, except when unsuitable, are entitled to the custody of their children, p. 406.</p> <p>3. Same.—Custody.—Wills.—The mother can not bequeath the custody of her child so as to deprive the father of his right to such custody, p. 406.</p> <p>4. Guardian and Ward. — Parent and Child. — Custody. — The legal guardian can not take the custody of a minor child from' its father, p. 406.</p> <p>5. Parent and Child.—Custody.—Forfeiture of Parent’s Right. —The father is entitled to the custody of his child, unless by misconduct, acquiescence or voluntary relinquishment he has forfeited such right, the mother being dead. p. 407.</p> <p>6. Same.—Custody.—Rights of State.-—The state may, in the interests of a child, take its custody from the parents, p. 407.</p> <p>7. Same.-—Custody.—Welfare of Child.—Where a parent has voluntarily given the custody of his child to others until its ' affections are firmly interwoven with the foster parents, the court may, in the interests of the child, refuse to grant the custody to the parent, p. 408.</p> <p>8. Same.—Custody.—-Evidence.—Where the evidence shows that the father is a fit person for the custody of his child; that the mother had lived with her sister during the last months of her life; that she had bequeathed the custody of such child to such sister; that the father had not acquiesced therein but' had insisted upon the custody of the child, a finding that such sister should have the custody thereof is unwarranted, p. 408.</p>

<p>1. Constitutional Law.—Insurance.—State Regulation.—The legislature of a state is powerless to prohibit a citizen from executing a contract of insurance outside of such state on property inside thereof, p. 412.</p> <p>2. Abatement and Revival.—Insurance. — Failure of Foreign Company to Comply with Statutes.—The fact that a foreign fire insurance company wrote a policy of insurance upon property in this State for the benefit of a citizen thereof is not alone sufficient to abate an action on such policy on account of a violation of our statutes prescribing conditions precedent to such company’s right to do business within the State, p. 413. .</p> <p>3. Appeal and Error.—Sustaining Demurrer to Paragraph of Reply. — Exception. — Pleading Over.—Withdrawal.—Where a demurrer is sustained to a paragraph of reply and a proper exception is reserved, and plaintiff then files a second paragraph under which all facts provable under the first are admissible, but he subsequently withdraws such second paragraph and stands upon the first, the sufficiency of the first is properly presented for review, p. 413.</p> <p>4. Same.—Briefs.—Supreme Court Rules.—Where appellant’s brief states enough of the pleadings to advise the judges of the questions presented, it is sufficient, p. 414.</p>

Erom Wells Circuit Court; Edwin G. Vaughn, Judge. Action by Mary A. Eoberts against Jacob- H. C. Smith as executor of the will of Jacob First, deceased. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Superior Court of Yanderburgh County; John H. Foster, Judge. Suit by the Karges Furniture Company against the Amalgamated Woodworkers Local Union Number 131 and others. From a decree for plaintiff against certain defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>Erom Henry Circuit Court; John M. Morris, Judge.</p> <p>Prosecution by tbe State of Indiana against Ollie Gipe for murder. From a judgment of conviction for involuntary manslaughter, defendant appeals.</p>

<p>1. Appeal and Error.—Evidence.—Introduction of.—Objections. —An objection that certain offered evidence was “incompetent, irrelevant and immaterial, and throws no light on the issues in the case,” presents no question on appeal, p. 441.</p> <p>2. Evidence.—Witnesses.—Credibility.—Insanity.—The proceedings in an examination by a commission as to the sanity of a state’s witness in 1899 is not competent as affecting the credibility of'such witness in 1905. p. 441.</p> <p>3. Witnesses. — Impeachment. — Corroboration.-—Where a witness is impeached by evidence of contradictory statements, he may be supported by corroborating statements made at about the same time as the alleged contradictory statements, p. 441.</p> <p>4. Evidence.—-Witnesses.—Corroboration.—Where a witness is impeached by proof of contradictory statements, only the parts of corroborating statements which tend to corroborate the statements contradicted are admissible, p. 442.</p>

<p>From Wells Circuit Court; J. M. Smith, Special Judge.</p> <p>Prosecution by the State of Indiana against John W. Terrell for murder. From a judgment of conviction, defendant appeals.</p>

<p>Erom Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Suit by the Indianapolis & Northwestern Traction Company against the Chicago, Indianapolis & Louisville Railway Company. From a decree for plaintiff, defendant appeals.</p>

<p>Erom Perry Circuit Court; G. W. Godk, Judge.</p> <p>Prosecution by the State of Indiana against Thomas W. Morrison for murder. Erom a judgment of conviction for manslaughter, the State appeals.</p>

<p>From Fountain Circuit Court; Joseph M. Babb, Judge.</p> <p>Action by Thomas Brown against the Indiana Springs Company. From a judgment for $925, defendant appeals. Transferred from Appellate Court under §133/Tu Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Spencer Circuit Court; Elbert M. Swan, Judge.</p> <p>Prosecution by the State of Indiana against Jonah. Williams. Erom a judgment of conviction, he appeals.</p>

From Lake Circuit Court; Willis C. McMahan, Judge. Proceeding by Fred Bowman as administrator with the will annexed of the estate of William Hoofhouse, deceased, against Jennie Olrick and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Lake Oircuit Oourt; Willis O. McMahan, Judge. Action by tbe State of Indiana, on tbe relation of Joseph Bakajsa, against Eren Parscouta and others. Erom a judgment for plaintiff, two of the defendants appeal.

From Elkhart Circuit Court; William J. Davis, Special Judge. Proceedings by FToah Whirledge and another for the construction of a drain, against which John Q. Shoup and others remonstrate. From a judgment for remonstrants, petitioners appeal.

From Rush Circuit Court; Douglas Morris, Judge. Action by Frank J. Carlin and others against Stewart T. Tongret and another. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Carroll Circuit Court; T. F. Palmer, Judge.</p> <p>Election contest by Levi Summe against William E. Browne. From a judgment for the contestee, contestant appeals.</p>

Erom Laporte Superior Court; II. B. Tuthill, Judge. Action by tbe State of Indiana, on tbe relation of tbe Hammond Elevator Company and another, against the Western Union Telegraph Company. Erom a judgment for plaintiff, defendant appeals.

<p>1. Trial.—Instructions.—Repeating Proposition in Every Instruction.—Where the court has explicitly instructed on an issue in a cause, it is not necessary to mention such issue in other instructions on other issues in the case. p. 517.</p> <p>2. Same.—Instructions.—Answers to Interrogatories.—Harmless Error.—Where the answers to interrogatories show that the facts are against plaintiff on a certain issue, error in the giving of instructions on such issue is harmless, p. 518.</p> <p>3. Same.—Instructions.—Burden of Proof.—Non est Factum.—■ An instruction that defendant must make a prima facie case of the execution oí a writing set up in his answer and denied in a reply of non est factum, after which it was plaintiff’s duty to show the nonexecution of such writing, after which the defendant could introduce evidence in chief to support its execution, is incorrect, but unless plaintiff’s substantial rights were injured thereby, the error is harmless, p. 518.</p> <p>4. Trial.—Burden of Proof.—Non est Factum.—Evidence.—Introduction of.—The party having the burden to prove the execution of a written instrument should introduce all of his evidence in chief on such question, after which his adversary should produce all of his, the party having the burden following with rebuttal evidence only, but the trial court may, in the interests of justice, permit evidence out of its regular order, p. 519.</p> <p>5. Bills and Notes.—Consideration.—Advancements.—Where a mother made an advancement to her son, such son to pay interest thereon so long as she desired, and later she released him • from further payments of interest, at which time she required his note merely as evidence of such advancement, such note is without consideration, p. 519.</p> <p>6. Descent and Distribution.—Advancements.—Interest.—The payment of interest, by agreement, on an advancement does not create the relation of debtor and creditor for such advancement. p. 520.</p> <p>7. Same. — Advancements. — Bills and Notes.—Consideration.— Where a mother advanced money to her son, such son to pay interest thereon so long as she desired, and later she released him from such payment of interest and took his note only as evidence of the advancement, such note did not change such advancement into a debt. p. 521.</p> <p>8. Bills and Notes.—Presumption of Indebtedness.—An ordinary note is presumed to show an indebtedness from the maker, but such presumption is disputable, p. 521.</p> <p>9. Same. — Advancements. — Right to Convert Note to. — The mother has the legal right to convert her son’s note into an advancement. p. 521.</p> <p>10. Same.—Advancements.-—Contracts.—A contract executed by a mother to her son, showing that the note which he owed her was to be held by her only as an evidence of an advancement, is valid and is a complete defense against the collection of such note. p. 522.</p>

<p>From Criminal Court of Marion County (34,659) ; Fremont Alford, Judge.</p> <p>Prosecution by the State of Indiana against Fred Beuchert. From a judgment of conviction, defendant appeals.</p>

<p>Appeal and Error.—Affirmance.—Subsequent Appeal.—Where a cause was affirmed on a prior appeal because the transcript showed no exception to the ruling complained of, a subsequent appeal, showing an exception in the record by a nunc pro tunc entry, will be dismissed.</p>

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Frank Bricker against Warren Springer. From a judgment on a verdict for plaintiff for $1,250, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Pleading. — Complaint.—Negligence.—Facts.-—-Conclusions.— A complaint for damages on account of personal injuries must show the facts from which defendant’s duty arises and must also show that defendant negligently failed to perform such duty, the mere allegations that a duty existed and that defendant failed to perform such duty being insufficient, p. 540.</p> <p>2. Same.—Inferences.—A pleading must stand upon its allegations and not upon inferences, p. 540.</p> <p>3. Same. — Complaint.—Railroads.—Rules.—Duty.—Where certain conduct is prescribed by the rules of a railroad company and an employe is injured by reason of the breach of such rules, his complaint must show that such rules prescribe such conduct, that the offending employe negligently failed to perform such conduct and that by reason thereof plaintiff was injured, p. 541.</p> <p>4. Same.—Negligence.—General Allegation.—A general allegation of negligence is not sufficient to show both a legal duty and a violation thereof, p. 542.</p> <p>5. Same. — Complaint.—-Alternative Allegations. — Alternative allegations usually destroy a pleading, p. 542.</p>

Erom Eayette Circuit Court; Ferdinand 8. Swift, J udge. Suit by Joseph E. Oglesby and another against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. The city of Rushville was impleaded. Erom a decree in favor of plaintiffs and the city of Rushville, defendant appeals. Transferred from Appellate Court under §1331^ Burns 1901, Acts 1901, p. 590.

Erom Clinton Circuit Court; Albert D. Thomas, Special Judge. Drainage petition by Charles T. Buchanan and others, against which James M. Small and others remonstrate. Erom a judgment for petitioners, remonstrants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>Erom Cass Circuit Court; John 8. Dairy, Judge.</p> <p>Suit by Thomas Gf. Horton against William S. Stitt. Erom a decree for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Hendricks Circuit Court; Thomas J. Gofer, Judge.</p> <p>Action by John M. Hall against the Indianapolis & Martinsville Rapid Transit Company. From a judgment on a verdict for plaintiff for $1,200, defendant appeals. Transferred ,Jfrom Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Statutes.—Construction.—Appeal and Error.—■Amount Involved.—Doubt.—Under §1337f Burns 1905, Acts 1903, p. 280, §1, prohibiting appeals to the Supreme or Appellate Courts where the amount of the judgment, exclusive of interest and cost, does not exceed $50, and §1337h Burns 1901, Acts 1901, p. 565, §8, providing for an appeal to the Supreme Court in all cases involving the proper construction of a statute, the Supreme Court has power to entertain an appeal from a money judgment of $50 or less only where there is a real, reasonable and material controversy over the scope and meaning of an ambiguous or uncertain statute, p. 564.</p> <p>2. Same. — Construction. — Mortgages. — Liens. — Release. — Penalty for Refusal.—The statute (§1105 Burns 1901, Acts 1901, p. 56) providing a penalty against the holder of a mortgage who wrongfully refuses to cancel the same after notice, is not ambiguous nor uncertain, and there is therefore no room for construction, p. 565.</p> <p>3. Appeal and Error.—Jurisdiction.—Construction of a Statute. —Evasion.—An appeal can not be taken from a- judgment, ■ otherwise unappealable, on the ground of the improper construction of.a statute, when the real ground of such appeal is alleged error on some other question, p. 565.</p>

<p>1. Indictment and Information.—Receiving Stolen Goods.— Description.—An indictment charging that a certain party stole “brass of the válue of $25” and that defendant feloniously bought and received “said brass,” is sufficient, p. 567.</p> <p>2. Trial.—Receiving Stolen Goods.—Evidence.—Variance.—New Trial.—Appeal and Error.—To present any question on an alleged variance between the proof and the indictment, a proper objection must be made to the admission of such evidence and the same assigned as a reason for á new trial, p. 568.</p> <p>3. Appeal and Error.’-—Instructions.-—Bill of Exceptions.— Criminal Law.—No question can be raised on an instruction in a criminal case unless such instruction is made part of the record by a bill of exceptions, p. 568.</p> <p>4. Evidence.—Receiving Stolen Goods.—Witnesses.—Thieves.— The thieves stealing the goods in question are competent witnesses to prove the theft of such goods as against the defendant receiving same. Reilley v. State, 14 Ind. 217, distinguished, p. 569.</p> <p>5. Appeal and Error. — Briefs.—References to Record. — Supreme Court Rules.—Where appellant’s brief fails to point out the pages and lines of the record showing the alleged error, the same is waived, p. 569.</p> <p>6. Same.—New Trial.—Supplemental Motion for.—Objections.— Demurrer to.—Defendant’s demurrer to the State’s objections to the filing of a supplemental motion for a new trial presents no question, p. 570.</p> <p>7. New Trial.-—Time for Filing.—Criminal Law.—Statutes.— Under §1911 Burns 1901, §1842 R. S. 1881, the motion for a new trial must be made during the term at which judgment was rendered, either before or after such judgment, p. 570.</p> <p>8. Statutes.—Saving Clause.—Criminal Law.—Under the act of 1905 (Acts 1905, p. 584, §699) the prosecutions for all offenses committed prior to April 15, 1905, the date of the taking effect of such act, are controlled by the laws of criminal procedure in force prior to such date. Robinson v. State, 84 Ind. 452 and McCalment v. State, 77 Ind. 250, distinguished, p. 570.</p>

Erom Hancock Circuit Court; Edward W. Felt, Judge. Prosecution by tbe State of Indiana against Tbomas H. Hew. Erom a judgment quashing the affidavit, the State appeals. Transferred from Appellate Court (see State v. New, 36 Ind. App. 521) under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>From Hamilton Circuit Court; William 8. Christian, Special Judge.</p> <p>Action by Melissa McFall against the Lake Erie & Western Railroad Company. From a judgment on a verdict for plaintiff for $150, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Superior Court of Marion County (56,415) ; Yin-' cent G. Clifford, Special Judge. Action by Moses Rosenthal against George A. Rambo and others. Erom a judgment against plaintiff and a decree for defendants on their cross-complaint, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Marion Circuit Court; Austin F. Denny, Special J udge. Action by tbe International Building & Loan Association No. 2 against tbe Indiana Trust Company as executor of the will of Norman S. Byram, deceased. Erom a judgment of the Appellate Court (36 Ind. App. 6) reversing in part a judgment for plaintiff, plaintiff appeals under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>Erom Superior Court of Vigo County; Samuel O. Stimson, Judge.</p> <p>Suit by Elizabeth G-. Barton and others against Katherine Kimmerley. Erom a decree for defendant, plaintiffs appeal.</p>

<p>1. Removal of Causes.—Diverse Citizenship.—States.—A state is not a citizen of any state, and an action by a state against a foreign corporation is not removable to the federal court on the ground of diverse citizenship, p. 616.</p> <p>2. Same. — Diverse Citizenship. — Beal Parties. — State. — The state is the real party in an action by it to collect a penalty for the violation of a statute, though one-half of such penalty goes to the prosecuting attorney and one-half to the county for the use of the common school fund. p. 617.</p> <p>3. Pleading.—Complaint.—Railroads.—Failure to Report Arrival of Trains.—Penalties.—A complaint against a railroad company for its failure to report the arrival of its passenger-trains at its station as required by §§5186, 5187 Burns 1901, Acts 1897, p. 176, Acts 1889, p. 279, §2, which substantially follows in the language of such statutes is sufficient, p. 618.</p> <p>4. Trial.—Instructions.—Evidence.—Whether Jury “May” or “Should” Consider.—The refusal of the court to instruct that the jury “should” consider, in determining the weight to be given their testimony, the promise of the prosecuting attorney to pay witnesses in the event plaintiff should win the case is reversible error, p. 620.</p> <p>5. Same.—Instructions.—Evidence.—Whether Jury “May” or “Should” Consider.-—The giving of an instruction by the court without objection that the jury “may” consider a witness’s interest in the result of the action in determining the weight to be given his testimony is not alone reversible error, p. 623.</p> <p>6. Trial.—Instructions.—Evidence.—Limiting Application of.— An instruction that the jury should consider the interest of the witness in the result of the action in determining thé credibility of his testimony, but for no other purpose, is not erroneous, p. 623.</p> <p>7. Same.—Instructions.—Right of Party to Subpoena and Transport Witnesses.-—An instruction that a party has the right to subpoena and transport his witnesses, where there is evidence on such subject, is proper, though a refusal to give same is not reversible, p. 624.</p> <p>8. Evidence.—Memory.—Refreshing by Memoranda.—A witness may refresh his memory by referring to concurrent memoranda, but he must have some recollection of the fact apart from such memoranda, p. 624.</p> <p>9. Same.—Memoranda.—Private.—Private memoranda, not made in the ordinary course of business, of the failure of a railroad company to post the time of arrival of its passenger-trains, are not admissible in evidence, p. 625.</p> <p>10. Trial. — Motion to Strike Out Evidence. — Certainty. — A motion to strike out evidence must be specific, and if it include any competent evidence, it should be overruled, p. 626.</p> <p>11. Same.—Motion to Strike Out Evidence.—Reasons.—A motion to strike out evidence must state the reasons therefor, p. 626.</p> <p>12. Evidence.—Refreshing Memory by Memorandum.—Copy.— Where a witness desires to refresh his memory from a copy of a memorandum, he must show that the original is lost. p. 626.</p> <p>13. .Trial.—Requiring Plaintiff to Elect on Which Paragraph He Relies.-—-Where the State files a complaint in 404 paragraphs against a railroad company for that number of separate violations of the statute (§§5186, 5187 Burns 1901, Acts 1897, p.- 176, Acts 1889, p. 279, §2) requiring such companies to post the time of arrival of passenger-trains, a motion by defendant to require plaintiff to elect on which paragraph it will try, should be overruled. p. 626.</p> <p>14. Statutes. — Construction. — Railroads. — Posting Time of Arrival of Trains.—Penalty.—Section 5187 Burns 1901, Acts 1889, p. 279, §2, provides a penalty for “each violation” of such act and not a single penalty for all violations, p. 627.</p>

<p>From Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Philip Klein against the O. M. Cockrum 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.—Supreme Court Rules.-—-Briefs.—Where appellant fails in his brief to set out literally or substantially the pleadings questioned and also fails to set out any definite objections in his points, all questions on such pleadings are waived, p. 634. '</p> <p>2. Same.—Injury Must Be Shown.—Appellant must, to obtain a reversal, affirmatively show that the alleged errors were injurious. p. 635.</p> <p>3. Contracts.—Sealed.—Discharge.—At the common law a contract under seal could be discharged or dissolved only by a writing under seal. p. 637.</p> <p>4. Same.—Sealed.—Discharge in Equity.—Where a sealed contract provided that defendant, a salesman, should pay plaintiff a certain price for goods, and that plaintiff would advance to defendant the excess over such price on sales orders and notes taken for sales, and by a subsequent oral contract plaintiff agreed to pay defendant such excess absolutely, and defendant turned over to plaintiff such orders and notes, the excess will be considered as an equitable discharge of amounts due under such sealed contract, p. 637.</p> <p>5. Pleading.—Action at Law.—Equitable Defense.—Under the Indiana code of procedure an equitable defense may be pleaded in answer to an action at law. p. 637.</p> <p>6. Appeal and Error.—Weighing Evidence.—The Supreme Court will not weigh the evidence in a case triable by jury. p. 638.</p> <p>7. Same.—Judgment against Appellant too Small.—Right to Complain.—The appellant will not be heard to complain because the judgment of the trial court against him was too small, p. 638.</p> <p>8. Same.—Rulings on Evidence.—New Trial.—Appellant, in order to raise any question on the erroneous admission of evidence, must include such erroneous admission in his motion for a new trial, p. 639.</p>

<p>Erom Martin Circuit Court; Milton 8. Eastings, Special Judge;</p> <p>Action by the State of Indiana, on the relation of John T. Morris, against Hiram McCormick and others. Erom a judgment for plaintiff, defendants appeal.</p>

From Laporte Superior Court; Harry B. Tuthill, Judge. Action by John S. Walton, by bis next friend, against tbe Cbicago Terminal Transfer Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Shelby Circuit Court; Douglas Morris, Judge. Action by Aurilla V. P. Adams against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and others. Erom a judgment for plaintiff for less than her claim, she appeals.

<p>Erom Warren Circuit Court; Joseph M. BcJJh, Judge.</p> <p>Action by James Glenn against the Lake Erie & Western Railroad Company. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under subd. 2, §133Jj Burns 1901, Acts 1901, p. 565, §10.</p>

<p>1. Statutes.—“Manufactory.”—Steam-Heating Plant.—Laborers’ Liens.—A steam-heating plant equipped with machinery for the production and conveyance of steam for heating purposes under a municipal franchise is a “manufactory” within the meaning of §7255 Burns 1901, Acts 1899, p. 569, providing for the enforcement of a lien for labor on any “house, mill, manufactory,” etc. p. 664.</p> <p>2. Same.—“Manufactory.”—Heating Plant.—Pipes in Street.— Liens.—The pipes, laid in the streets, which are used for the conveyance of steam from a heating plant to the consumer is a part of a “manufactory” within §7255 Bums 1901, Acts 1899, p. 569, and the laborers who dig trenches for such pipes, those hauling materials for such work, and those excavating and filling such trenches are entitled to a lien on such plant for such services, the fact that such labor was not performed on the lot where the power plant was located being immaterial, p. 665.</p>

Erom St. Joseph Circuit Court; Walter A. Funk, Judge. Claim by Loutitia Henderson against Loutitia Henderson as administratrix of the estate of Alexander H. Henderson, deceased. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Appeal and Error.—Several Exception to Joint Motion.-—• Joint Assignment.—A joint assignment on appeal properly presents any error of the trial court in overruling a joint motion for a new trial, though the parties to said motion excepted severally. p. 674.</p> <p>2. Same. — Supreme Court Rules. — Good-Faith Attempt to Comply. — Briefs. — Where appellants have made a good-faith ■ attempt to comply with the Supreme Court rules in the preparation of their brief, insubstantial defects will be disregarded, p. 675.</p> <p>3. Wills.—Testamentary Contracts.—Soundness of Mind.—Rule. —Where an action was brought to resist the probate of a will and a testamentary contract on the grounds of unsoundness of mind and undue influence, the test of mental capacity applicable is that of a testator and not that of a party to a contract inter vivos, p. 675.</p> <p>4. Appeal and Error.—Supreme Court Rules.—Briefs.—Waiver. ■—All questions not discussed in appellants’ brief are waived. • p. 675.</p> <p>5. Trial. — Instructions. — Wills. —■ Undue Influence. — Friendly Relations.—Presumption.—Where it is shown that close and friendly relations exist, especially when founded upon kinship, between the testator and the objects of his bounty, the presumption is that such facts show a rational explanation of the generous provisions of the will, and not undue influence, p. 675.</p> <p>6. Appeal and Error.—Instructions.—Tender of.—How Shown. —In order to reserve any question on the refusal to give a tendered instruction, the complaining party must affirmatively show by the record that he tendered such instruction before the commencement of the argument, a statement that it was tendered “at the proper time” being a conclusion, p. 676.</p> <p>7. Trial.—Instructions.—Wills.—Soundness of Mind.—An instruction that to enable testator to make a valid will she must have possessed, at the time of its execution, a sufficient mental capacity to enable her to understand and act with discretion in the ordinary affairs of life, is not applicable to an action to resist the probate of a will. p. 677.</p> <p>8. Evidence.—Undue Influence.—“Signs of.”—It is not reversible error to permit defendants in an action to resist the probate of a will on the grounds of mental unsoundness and undue influence to ask a witness, present at the execution of such will, whether he noticed “any signs of undue influence,” especially when plaintiffs had the right on cross-examination to show the facts and eliminate the witness’s opinions, p. 677.</p> <p>9. Appeal and Error.—New Trial.—Misconduct of Juror.— Weighing Evidence.—Where plaintiffs in their motion for a new trial, supported by affidavits, allege that a juror expressed his opinion on the merits before all of the evidence was introduced, and defendants file such juror’s affidavit in denial thereof and the court finds against plaintiff on such issue, the Supreme Court will not disturb such finding, especially where it does not appear that such alleged misconduct in any way affected the result of the case. p. 678. ■ •</p>

From Henry Circuit Court; J ohn M. Morris, Judge. Action by Howard E. Fichólas against the Pittsburgh, Cincinnati, Chicago & St. Louis Kailway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

Eroin Clinton Circuit Court; Samuel R. Artman, Special Judge. Action by the State of Indiana, on the relation of William Stephenson, against Adam Rodenbarger as supervisor of road district number one in Ross township. Erom a judgment for plaintiff, defendant appeals.

<p>From Superior Court of Marion County (65,107) ; Vinson Carter, Judge.</p> <p>Suit by Peter C. Clevenger against Martha A. R. Matthews and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under subd. 2, §1337) Burns 1901, Acts 1901, p. 565, §10.</p>

<p>1. Carriers. — Railroads. — Passengers.—Negligence.—Contributory.—Where the evidence shows that plaintiff, a passenger on defendant’s passenger-train, was violently thrown from his seat in the coach and injured by a collision of such train with a freight-train on the same road, and no explanation thereof is made by defendant, its negligence and plaintiff’s freedom from contributory negligence are established, p. 701.</p> <p>2. Pleading. — Complaint.—Railroads.—Carriers.—Torts.—Contracts.—A complaint by a passenger showing that defendant railroad company was a passenger carrier for hire; that he had for a certain consideration purchased a ticket entitling him to ride as a passenger thereon; that by reason of defendant’s negligence in permitting a collision of its passenger-train an.d a freight-train plaintiff was injured, is in tort and not on a contract, no special contract being alleged, p. 701.</p> <p>3. Same.—Answer.—Carriers.—Railroads.—Contracts.—Limiting Liability.—Where defendant railroad company relies upon a contract to defeat plaintiff’s action for damages for its negligence it must set out such contract as an answer, p. 702.</p> <p>4. Trial.—Pleading.—Contracts.—Express.—Implied.—Variance. —Where plaintiff declares upon an implied contract and the proof shows an express contract, there is a fatal variance, p. 702,</p> <p>5. Carriers.—Passengers.—Who Are.—Contracts.—Where a person purchases a ticket for passage on a railroad and is accepted as a passenger thereon, he is invested with all the legal rights of a passenger for hire, and if such ticket contains reasonable conditions assented to by such person it constitutes a contract, p. 704.</p> <p>6. Same.—Passengers.—Coupon Tickets.—The purchase of a coupon ticket from the Northern Pacific Railroad Company at Spokane, Washington, to Nieholasville, Kentucky, a part of which entitled plaintiff to ride from Chicago, Illinois, to Cincinnati, Ohio, over defendant’s road, constitutes plaintiff a passenger for hire on defendant’s road, defendant having accepted such coupon for its road. p. 705.</p> <p>7. Same.—Passengers.—Coupon Tickets.—Defendant’s Receipt of Part of Price.-—It is not necessary for plaintiff to prove the exact amount defendant carrier received of the purchase price of a coupon ticket on which he was riding when injured by defendant’s negligence, p. 705.</p> <p>8. Pleading.—Proof.—While the plaintiff must recover on the cause alleged in his pleadings, he is required to prove only the substance of the material facts constituting his cause of action, p. 705.</p> <p>9. Carriers.—Contracts.—Negligence.—Relief Against.—A common carrier can not by contract relieve itself from its negligence toward its passengers. Payne v. Terre Haute, etc., R. Co., 157 Ind. 616, distinguished, p. 705.</p> <p>10. Trial.—Instructions.—Questions Not Before Jury.—Where the verdict is right on the evidence, giving or refusing certain instructions on a question not really involved in the case is harmless, p. 706.</p> <p>11. Carriers. — Railroads. — Collision. — Negligence. — Res Ipsa Loquitur.—Where a passenger proves an injury by a collision of his train with another of defendant company’s trains, a prima facie case of negligence is established, and it is defendant’s duty to overcome same by proof that such accident could not be avoided by the exercise of the highest practical care and diligence. p. 706.</p> <p>12. Trial.—Burden of Proof.—Carriers.—Negligence.—The burden of proof of defendant carrier’s negligence remains on the plaintiff throughout the trial, p. 708.</p> <p>13. Same.—Instructions.—Misleading.—An instruction which, though erroneous, does not mislead the jury to defendant’s injury is not reversible, p. 708.</p> <p>14. Same.—Right Result.—Where the trial court reached a right result, its judgment will be affirmed, p. 708.</p>

From Wells Circuit Court; Edwin C. Vaughn, Judge. Action by the State, on the relation of Arthur C. Fast and others, against the Board of Commissioners of the County of Wells. From a judgment for defendant, plaintiff appeals.