Volume 166 — Indiana Reports

From Hendricks Circuit Court; Thomas J. Gofer, Judge. Suit by Cyrus Osborn against Henry S. Cox, as assignee of James O. Winsted, and others, in which Kaymond K. McDaniel and others intervened. From a decree .against intervenors, they appeal. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>From Laporte Circuit Court; John G. Richter, Judge.</p> <p>Action by Jennie Barnes against tbe Lake Shore & Michigan Southern Railway Company. From a judgment on a verdict for plaintiff for $5,500, defendant appeals. Transferred from Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.</p>

<p>1. Municipal Corporations.—Sewers.—Construction by County. —Negligence.—Statutes.—Under the act of 1899 (Acts 1899, p. 164, §2), providing that before boards of commissioners make an improvement of a highway, part of which is within the corporate limits of a city, such boards shall present the plans and specifications of the proposed improvement to the city council and obtain its authority in writing to construct same, such city is liable for negligence for failing to establish proper sewers to carry off diverted waters and discharging same upon plaintiff’s lot, though such county board made such improvement. p. 18.</p> <p>2. Municipal Corporations.—Streets.—Control.—Municipal corporations have absolute control over their streets and other public ways. p. 20.</p> <p>3. Same. ■—■ Streets.—Grading.—Liability.—Negligence.—Municipal corporations may grade their streets by cutting and filling and are not liable therefor except where such work is done negligently, p. 20.</p> <p>4. Same.—Streets.—Side Ditches.—Waters.—-A municipal corporation may construct side ditches in the drainage of streets and is not liable because the water therein drains upon lots of a lower level, unless guilty of negligence in the construction of such ditches, p. 21.</p> <p>5. Same. — Waters. — Diversion. — Municipal corporations are liable for damages done by the collection of surface-waters or the change of natural watercourses unless they provide an adequate outlet therefor, p. 21.</p> <p>6. Same.—Sewers.—Unprecedented Floods.-—Municipal corporations are not liable for the overflow of waters from its sewers and ditches, caused by an unprecedented flood, p. 22.</p> <p>7. Appeal and Error. — Complaint. ■—■ Answer. — Demurrer. — Harmless Error.—Waters.—Where a complaint alleges damages by a city’s collection and discharge of the waters of ordinary rainfalls, sustaining a demurrer to an answer of an unprecedented flood is harmless, since evidence thereof was admissible under the general denial already pleaded, p. 23.</p> <p>8. Evidence.—Unprecedented Floods.—Waters.—Municipal Corporations.—In an action against a city for damages for collecting and discharging the waters of ordinary rainfalls upon plaintiff’s lot, it is error to exclude evidence by defendant that the rainfall causing the damage was an unprecedented flood, p. 24.</p> <p>9. Appeal and Error. — Reversal. — Mandate. — Modification. ■—Death.—The mandate of a judgment of reversal will be modified, upon notice of appellee’s death, to take effect as of the date of submission of the cause, p. 24.</p>

<p>1. Evidence.—Wills.—Insanity.—Drink.—Increase of Habit.—It is not error, in the trial of an action to contest a will, to refuse to strike out an answer that testator “drank a great deal more than he did in prior years, and he used more profanity and was more indecent,” such witness having testified to knowledge of testator’s habits for ten years, p. 28.</p> <p>2. Same..—“Indecent.”—Explanation of Meaning of.—It is competent for a witness to explain the meaning of “indecent” as used by him in characterizing a testator, p. 29.</p> <p>3. Same. — Wills. — Insanity. — “Profanity.” — “Indecency.” — “Ungovernable Temper.”—“Strong Language.”—“Rational.”— It is not error to permit witnesses, in the trial of an action to contest a will, to use the words “profanity,” “indecency,” “ungovernable temper,” “strong language,” “rational,” and the like in characterizing the acts and conduct of the testator, where opportunity is given on cross-examination to bring out the details, p. 29.</p> <p>4. Same.—Wills.—Insanity.—Opinions.—It is competent, in the trial of an action to contest a will, to ask a lay witness “From what you have stated, from what you have seen of [testator], * * * tell the jury what you think as to his being of sound or unsound mind during those ten years you knew him.” p. 30.</p> <p>5. Same.—Opinions.—Question for Jury.—Insanity.—If a lay witness testifies to any material facts tending to show such knowledge and intimacy with a testator as to enable him to form an opinion of the testator’s mental condition, he is competent to express an opinion upon such facts, the weight thereof being for the jury. p. 30.</p> <p>6. Trial.—Instructions.—Wills.—Insanity.—Opinions.—Jury.—It is proper, in an action to contest a will, to instruct the jury that lay witnesses could give opinions as to testator’s sanity only upon facts detailed by them to the jury, and that the jury were not bound by such opinions but might examine the facts stated and reach their own conclusion, p. 31.</p> <p>7. Same..—Evidence.—Objections.—Time for Making.—An objection made to a question after the answer has been given by the witness is too late. p. 31.</p> <p>8. Evidence.—Physicians.—Opinions.—Explanations of Medical ■ Terms.—Symptoms of Insanity.—Forms of.—Alcohol.—It is competent for a physician, in the trial of an action to contest a will, to explain the meaning of “mania,” “monomania” and other technical terms; to explain the symptoms of a mind suffering from insane delusions and the symptoms of dementia; to give an opinion as to the class of mental unsoundness upon a hypothetical state of facts and to explain the effect on the brain and mind of the excessive use of alcohol, p. 32.</p> <p>9. Evidence.—Opinions.—Forms of Insanity.-—Cross-Examination.-—Discretion of Court.—Permitting defendants’ lay witness, in an action to contest a will, to testify, over objection, on cross-examination, that a testator might be of sound mind on some subjects and unsound on others is not an abuse of discretion, where such witness testified to knowledge of testator and his conduct for many years, p. 32.</p> <p>10. Same. — Impeaching.—Contradictory Statements.—Wills.— Insanity.—Where a defendant, in an action to contest a will, testified to testator’s sanity and denied making contradictory statements, it was competent to prove in rebuttal that he did make such contradictory statements, p. 33.</p> <p>11. Same. •—• Impeaching. — Wills. — Insanity. ■—• Drunkenness. — Where defendants’ witness testified to his taking a trip with testator to Philadelphia and that he never saw testator intoxicated, it was competent in rebuttal to show that testator was drunk on such trip with witness, the habit of the testator with reference to the use of intoxicating liquors, and the resultant effect upon his mind being material, p. 33.</p> <p>12. Same.—Impeaching.—Wills.-—-Testator’s Relation to Legatee. —Where a defendant legatee testified that his relations with the testator, his father, were always pleasant, he could be contradicted by a plaintiff or any other witness by showing specific acts of trouble between them. p. 33.</p> <p>13. Same.—Impeachment.—Collateral Matter.—Wills.—Insanity. —Evidence of defendant son’s pleasant relations with his father, the testator, being admissible only on the question of testator’s sanity, impeaching evidence of unpleasant relations is not on a collateral issue, and is admissible, p. 34.</p> <p>14. Same.—Impeachment.—Contradictory Statements.—Wills.— Alterations.—Where defendants’ witness, in an action to contest a will—one ground being subsequent, material alterations— testified to his reading the will at the funeral, it was competent to impeach him by showing his statement that he had read the wrong will at the funeral, p. 34.</p> <p>15. Appeal and Error. — Evidence. — Wrongful Admission. — Favorable Verdict.—Harmless Error.—Appellants cannot complain of the wrongful admission of evidence on an issue, where such issue is found in their favor, p. 34.</p> <p>16. Same. ■—• Writings. — Authentication.—Court Records.—Affidavits of a party, used in another suit and on file in the clerk’s office, when identified by a witness as in the handwriting of such party, are admissible in evidence, and the clerk’s testimony that they are a part of the files of the case is unnecessary, p. 34.</p> <p>17. Trial. — Instructions.—Wills.—Insanity.—Post-Testamentary Declarations.—How Considered.—An instruction that post-testamentary declarations of a testator, that he had given property of a certain value to a child, can be considered only on the question of soundness of mind and not as evidence of the fact of such gift, is proper, p. 34.</p> <p>18. Appeal and Error. — Trial. — Instructions. — Favorable. — Harmless Error.—Appellants cannot complain of the court’s giving a favorable instruction at their request, p. 35.</p> <p>19. Trial.—Instructions.—Wills.—Testamentary Capacity.—An instruction that testator had testamentary capacity if he had “the capacity of mind to know what he was doing and the effect of what he was doing” is not objectionable, p. 35.</p> <p>20. Same. —■ Instructions.—Wills.—Testamentary Capacity.—An instruction that, to make a valid will, testator was required to possess mind and memory enough to know and grasp at the one time while making his will the extent and value of his property, the number and names of those who were the natural objects of his bounty, their deserts with reference to their conduct towards him, their capacity and necessity, and to retain these facts until the will was executed, is correct, p. 35.</p> <p>21. Same. — Instructions. — Wills. —■ Insanity. — Drunkenness. — Invasion of Province of Jury.—An instruction, that if a testator was sober and in the possession of his mental faculties when he executed the will in question, the fact of his being drunk at other times would not of itself invalidate such will, is not an invasion of the province of the jury. p. 36.</p> <p>22. Same. —• Instructions.—Wills.—Insanity.—Drunkenness.—An instruction, that if drunkenness were so long continued by the testator as to produce unsoundness of mind, the same rules as to testamentary capacity would apply as in case of mental unsoundness from other causes, is correct, p. 36.</p> <p>23. Same. — Instructions. — Wills.—Insanity.—Monomania.—An instruction that if testator was suffering from monomania which prompted his action and affected his purpose and object in making his will, such will is invalid, is correct, p. 36.</p> <p>24. Wills.—Testamentary Capacity.—Evidence.—Question for Jury.—Where the evidence showed that testator, at the time of the execution of his will, was 77 years old; that he married and reared a family of nine children, was divorced, remarried and again divorced because of his cruelty; that he drank to great excess many years; that he was very profane, uncouth and used vile, indecent and obsecene language anywhere; that his memory was bad and he was filthy in his personal deportment; that he very frequently ordered work done and shortly afterwards denied his order and that his treatment of his children was irrational, the question of his sanity was for the jury, whose verdict cannot be disturbed on the weight of the evidence, p. 37.</p>

From Superior Oourt of Vanderburgh County; John H. Foster, Judge. Suit by Azro Dyer against Charles S. Woods and others, as constituting the Board of Public Works of the city of Evansville. From a decree for defendants, plaintiff appeals.

<p>Erom Whitley Circuit Court; Joseph W. Adair, Judge.</p> <p>Action by Susau Orner against' William H. McIntyre. From a judgment on a verdict for plaintiff for $2,500, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>Erom Washington Circuit Court; Thomas B. Buskirk], Judge.</p> <p>Prosecution by the Town of Salem against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

From Laporte Circuit Court; Walter A. Funic, Judge. Suit by Emmett Scott and others against the City of Laporte and another. From an interlocutory decree for plaintiffs, defendants appeal.

<p>Erom Washington Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Prosecution by the State of Indiana against Ered Brown. Erom a judgment of conviction, defendant appeals.</p>

<p>1. Contracts. — Real Estate. — Description. — Application of.— Question of Fact.—The application of the description of land to its subject-matter is a question of fact for the jury. p. 93.</p> <p>2. Trial.—Special Findings.—Failure to Include Contract.—Specific Performance.—Quieting Title.—Where the special findings, in a suit for specific performance and to quiet title, fail to show material parts of the alleged contract for the conveyance oi the real estate in question, the plaintiff can not complain that the conclusion of law against her is erroneous, p. 93.</p> <p>3. Appeal and Error.—Bill of Exceptions.—Filing.—A bill of exceptions, presented to the judge within the time granted for the filing thereof, but filed after the expiration of such time, is a part of the record. La Rose v. Logansport Nat. Bank, 102 Ind. 332, disapproved, p. 93.</p> <p>4. Trial.—Special Findings.—Contracts.■—Specific Performance. —A finding that plaintiff took care of decedent until decedent’s death; that decedent in her petulancy several times asked plaintiff to leave; that plaintiff refused to do so but patiently bore such remarks; that decedent each time became sorry of the language used and asked plaintiff to remain, shows that plaintiff performed her contract to care for decedent during decedent’s life. p. 102.</p> <p>5. Evidence.—Declarations.—Res Inter Alios Acta.—In a suit for specific performance of a contract to care for decedent during her life, in consideration of the conveyance of certain real estate, the declaration of decedent to third persons that plaintiff was not satisfied with decedent’s will is res inter alios acta and inadmissible as evidence of the fact of such dissatisfaction. p. 103.</p> <p>6. Contracts. — Offer. — Acceptance. — Correspondence.—Where an open offer to contract is made by letter, a continuation of the intention to contract is presumed until an acceptance closes such offer, p. 104.</p> <p>7. Same.—Offer.—What Constitutes.—To determine whether a proposal contained in a letter is an offer to contract, the terms of such proposal and the circumstances of the parties are to be considered, p. 104.</p> <p>8. Same.—Offer.—Promise.—A letter to plaintiff by decedent stating: “I have had my house painted since I came home. * * * You know it is to be yours if you survive me and the lots which is property worth at least $10,000, but * * * I shall expect you to come and compensate me by staying while I need you,” constitutes a legal offer to contract, p. 104.</p> <p>9. Same.—Offer.—Acceptance.—Where decedent in a letter made a certain offer to plaintiff, and plaintiff, in a letter, replied: “I subscribe to the terms,” a valid contract is created, p. 106.</p> <p>10. Same. — Executed. — Acceptance. — Estoppel. — Decedent’s privies are estopped from asserting that plaintiff never accepted decedent’s offer, where it is shown that plaintiff fully performed the terms of the offer, with decedent’s knowledge and consent, p. 106.</p> <p>11. Deeds. — Description.—Construction.—Descriptions in deeds • are construed with the utmost liberality, and if by any possibility the intent can be gathered from the words used, such intent will be given effect, the office of a description being to furnish the means for identification of the lands, p. 107.</p> <p>12. Evidence.—Parol.—Deeds.—Descriptions.—Parol evidence is admissible to apply the description in a deed to the subject-matter. p. 107.</p> <p>13. Contracts.—Correspondence.—Frauds, Statute of.—Where decedent and plaintiff carried on a correspondence beginning in March, 1897, and culminating in an offer on August 1, 1897, and an acceptance on August 15, 1897, the court may look to such prior correspondence to determine the subject-matter of such offer, p. 108.</p> <p>14. Same.—Correspondence.-—References.—Frauds, Statute of.— Evidence.—Where prior letters are relied upon to explain ambiguities in a written offer, the letter or writing containing such offer must in some manner refer to such prior letters, p. 109.</p> <p>15. Same. — Correspondence. — References.—Evidence.—Parol.— Frauds, Statute of.—Where the reference to prior letters contained in a letter embodying an offer is very general'or indefinite, parol evidence is admissible to identify the letters referred to. p. 109.</p> <p>16. Same.—Reference to Other Writings.—Frauds, Statute of.— Evidence.-—-Where a writing containing an ambiguous offer does not contain a direct or express reference to other writings explanatory thereof, other writings, if, in the light of the facts and by comparison, they are connected therewith, may be admitted ; and a general reference may be inferred to relate to the only writing produced by either party, p. 109.</p> <p>17. Same. — Correspondence. — References.—Ambiguities.—Parol Evidence.—Where decedent wrote to plaintiff that she would convey to her “the three lots in this half block that your uncle traded for,” further speaking of the property as “this nice house,” and “the rest of this piece of property,” in consideration of plaintiff’s taking care of decedent the remainder of her life, which offer was not in terms accepted; and in a later letter offered “the lots,” according to “our understanding,” which offer plaintiff in terms accepted; and parol evidence showed that decedent meant the “Holden property” which constituted the three lots and house first mentioned, such real estate is sufficiently identified, p. 110.</p> <p>18. Same. — Conveyances. — Description.—Partly False.—Where decedent wrote to plaintiff: “You know it [the house] is to be yours if you survive me and the lots which is property worth at least $10,000,” the prior correspondence •will be admitted as explanatory thereof, and if there be a conflict between the value of the property intended and the value as given, the court will reject, as the least certain, the description as inferred from value, p. 111.</p> <p>19. Contracts.—Real Estate.—Description.—Values'.—.Where decedent, by letter, offered plaintiff, for a consideration, “the three lots in this half block that your uncle traded for,” further saying that it “includes this nice house” which plaintiff should “take good care of,” and later wrote: “You know it [the house] is to be yours if you survive' me and the lots which is property worth at least $10,000,” such latter statement is capable of the construction that “which” refers to the lots and not to the house and lots, other circumstances also indicating that as the true interpretation, p. 112.</p> <p>20. Same.—•Ambiguities.—Explanations.—Evidence.—Where a letter contains an offer, ambiguous on its face, which is certain when viewed in the light of testimony legally admissible, the acceptance of same constitutes a valid contract.- p. 114.</p> <p>21. Evidence. — Oral. —■ Contracts.—Dispositive.—Contradiction of.—A contract by which decedent undertook to convey to plaintiff certain property for services, is dispositive in character and cannot be varied nor contradicted by parol, p. 115.</p> <p>22. Same. — Oral.—Contracts.—Explanations.—Oral evidence is admissible to clear up indefiniteness or ambiguity in a written contract, but the plain meaning of the language used can not be varied by parol, p. 116.</p> <p>23. Same.—Circumstantial.—Inferences.—Whenever cireumstanstantial evidence is relied upon to prove a fact, the circumstances must first be proved, since reliable inferences cannot be drawn from uncertain inferences, p. 117.</p> <p>24. Same. — Parol. — Contracts. — Variation.—Inferences.—Evidence of plaintiff’s declaration that she claimed the corner house and the lot north does not justify an inference that she claimed only a portion of the large unplatted lot north, since inferences cannot be based upon inferences, p. 118.</p> <p>25. Same.—Contracts.—Wills.—Intention.—Self-Serving Declarations.—Where decedent contracted with plaintiff on August 1 to convey to her certain lots, a will executed by decedent three days afterward, wherein she devised plaintiff only a part thereof, is inadmissible to show the decedent’s intention in the making of such contract, the expressed intention in the contract governing; and the admission of such evidence is also objectionable as hearsay, p. 118.</p> <p>26. Specific Performance. — Contracts. — Terms.-—Where the terms of a contract for the conveyance of real estate are such that the court can identify the property, specific performance ' will be decreed in favor of the party who has fully performed his part of the contract of purchase, p. 122.</p> <p>27. Same.—Contracts.—Consideration.-—-Where plaintiff agreed to take care of her aunt during her life, and did so, the fact that the aunt lived only a little over three years does not prevent plaintiff’s right to specific performance of their contract for the conveyance of real estate, the breadth of the undertaking at the time of its execution being the measure of plaintiff’s obligation. p. 122.</p> <p>28. Appeal and Error.—Final Judgment.—Where the facts of a case show clearly that the plaintiff in an equity case ought to recover, a final decree will be directed, p. 123.</p>

<p>Erom Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by the McEarlan Carriage Company against the Connersville Wagon Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Lake Circuit Court; Willis Q. McMahan> Judge. Action by tbe State of Indiana, on the relation of Frank Rignier and others, against Charles E. Black, as trustee of Eagle Creek School Township. From a judgment for defendant, plaintiff appeals.

Erom Marion Circuit Court (20,579) ; Merle N. A. Walker, Judge pro tern. Action by Francis P. Starkey and others against Alonzo L. Starkey and others. From a judgment for defendants, plaintiffs appeal.

Erom Superior Court of Marion County (63,541) ; Vinson Carter, Judge. Action by William E. Henderson against Tbomas Ashley and others as trustees of the Allen Chapel African Methodist Episcopal Church. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Action by William Zehner against the Terre Haute & Indianapolis Railroad Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Clinton Circuit Court; Joseph M. Babb, Special Judge. Action by .the State of Indiana, on tbe relation of tbe Western Construction Company, against tbe Board of Commissioners of tbe County of Clinton. Erom a judgment for defendant, plaintiff appeals.

Erom Putnam Circuit Court; Presly O. ColUver, Judge. Prosecution by tbe State of Indiana against Benjamin Simpson and another. From a judgment quashing the affidavit and information, the State appeals.

Erom St. Joseph Circuit Court; Walter A. Funk, Judge. Action by the State of Indiana, on the relation of the City of South Bend, against the Terre Haute & Logansport Railway Company. Erom a judgment for plaintiff, defendant’s successor in interest, the Vandalia Railroad Company, appeals.

Erom Lawrence Circuit Court; James B. Wilson, Judge. Action by James,Lay against the American Quarries Company. Erom a decision of the Appellate Court (37 Ind. App. 386) affirming a judgment on a verdict for plaintiff for $4,500, defendant petitions to transfer said cause to the Supreme Court under suhd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Pleading. — Complaint. — Mandamus. — Advisory Boards. — Schools.—-A petition for a writ of mandate to compel a township advisory board to “appropriate” money to defray the township’s proportionate part of the cost of building a schoolhouse in a “new joint school district” is bad where it fails to show that such township had funds which could be appropriated, since if such sum was not available in money such board could act only under §8085f Burns 1901, Acts 1901, p. 415, §1, providing for the borrowing of money for such purpose, p. 238.</p> <p>2. Same.—Mandamus.—Demanding Excessive Relief.—Where a relator in mandamus, in the mandatory clause of his alternative writ, includes a command for greater relief than that to which he is entitled under the allegations of his petition and writ, it renders such writ insufficient on demurrer or motion to quash, p. 239.</p>

<p>Erom Scott Circuit Court; Willard New, Judge.</p> <p>Action by Henry Vogel against the Ohio Farmers Insurance Company. Erom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under snbd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.</p>

<p>From Tipton Circuit Court; James F. Flliott, Judge.</p> <p>Suit by William E. Oglebay and others against Lemuel S. Todd and others. From a decree for defendant Todd on his cross-complaint, William E. Oglebay and another appeal. Transferred from Appellate Court under §§1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Crawford Circuit Court,' G. W. Goolc, Judge. Action by Claude A. Sittasen against the Southern Railway Company and others. Erom a judgment on a verdict for plaintiff for $10,000 against said company, it appeals from the Appellate Court under subd. 3, §133lj Burns 1901, Acts 1901, p. 565, §10.

Erom Tipton Circuit Court; B. F. Harness, Judge pro tem. Action by John Wall against tbe McElwaine-Ricbards Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Orange Circuit Court, Thomas B. Bushirh, Judge.</p> <p>Action by Joseph E. Reyman against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Newton Circuit Court; Charles W. Hanley, Judge. Action by tbe State of Indiana, on the relation of Lawrence A. Wiles, as treasurer of the Town of Groodland, against Charles W. Spinney, as county treasurer of Newton county. From a judgment for defendant, plaintiff appeals.

<p>Erom St. Joseph Circuit Court; Lucius Hubbard, Special Judge.</p> <p>Prosecution by the State of Indiana against Thomas E. Clark. Erom a judgment of conviction, defendant appeals.</p>

From Clay Circuit Court; P. O. Colliver, Judge. Action by Hugh Cuthbertson against the Diamond Block Coal Company. Erom a judgment of the Appellate Court affirming a judgment for plaintiff for $7,500, defendant appeals, under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>Erom Martin Oircnit Court; H. Q. Houghton, Judge.</p> <p>. Condemnation proceedings by the Indiana Hydraulic Power Company against William L. Stoy and another. Erom a decree for plaintiff, defendant Stoy appeals.</p>

<p>Erom Superior Court of Vanderburgh County; John H. Foster, Judge.</p> <p>Action by Henry Gillen against the Louisville & Nashville Railroad Company. Erom a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

Erom Marshall Circuit Court; A. G. Gapron, Judge. Suit by Charles Wolff and others against the Board of Commissioners of the County of Laporte and others. Erom a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §133Ju Burns 1901, Acts 1901, p. 590.

<p>1. Appeal and Error.—Briefs.—Waiver.—Alleged errors not discussed in appellant’s brief are waived, p. 332.</p> <p>2. Same.—Bill of Exceptions.—Whether in Record.—A bill of exceptions prepared under the act of 1899 (Acts 1899, p. 384, §6, §1475 Burns 1901), which is invalid, but which shows that it contains all of the evidence given, and was signed and after-wards filed, sufficiently complies with the act of 1897 (Acts 1897, p. 244, §638a Burns 1901), and is a part of the record, p. 332.</p> <p>3. Taxation.—Tax Deeds.—Evidence of Title.—Statutes.—Burden of Proof.—A tax deed executed in 1885 is, under §6480 R. S. 1881, prima facie evidence of title in fee simple in the grantee, and the burden of overthrowing such proof is upon the person asserting a different title, p. 332.</p> <p>4. Trial.—Instructions.—-Title.—Divesting.—Where plaintiff has shown by public records a legal title to the land in controversy,an instruction that he should recover unless the evidence shows that such title has been divested, is correct, p. 333.</p> <p>5. Adverse Possession.—Color of Title.—An entry upon land with the intention of asserting ownership, and the continuance of such possession for twenty years and the exercise of the rights of an owner, establish adverse possession, though such person had no color of title, p. 333.</p> <p>6. Trial. —Instructions.—Title.—Divesting.—Deeds.—Taxation. —An instruction that lands can be conveyed only by a deed executed by the grantor or his authorized representative is erroneous, since by special proceedings, and particularly by tax sales, such title may be divested without the owner’s consent. p. 334.</p>

Erom Whitley Circuit Court; Joseph W. Adair, Judge. Action by Josiah O. Teeters against the Lake Shore & Michigan Southern Railway Company. Erom a judgment of the Appellate Court affirming a judgment on a verdict for plaintiff for $10,000, defendant appeals under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Estates.—Tenancy by Entirety.—Descent and Distribution.— Lands held by a husband and wife as tenants by the entirety descend by law to the surviving wife regardless of any attempt by the husband to dispose of same by will. p. 358.</p> <p>2. Wills.—Bequest to Widow.-—-Descent and Distribution.— Where it is reasonably' clear from the testator’s will that the provisions therein for the widow are in lieu of her statutory rights, her acceptance of such provisions precludes her from claiming such statutory rights, p. 359.</p> <p>3. Same.—Devise of Others’ Property.—Election.—Where the husband devised to his wife a life estate in lands held by them as tenants by the entirety, particularly describing them, and the widow elected to take the provisions of such will, she cannot afterwards claim that such property descended to her by law. p. 359.</p> <p>4. Same. — Widows. — Dower. — Election.—Under §2666 Burns 1901, Acts 1885, p. 239, the failure of the widow to file with the clerk her written election to retain her rights under the law, is an election to take under the provisions of the will of the husband, p. 360.</p> <p>5. Same.—Acceptance.—Inconsistent Claims.—A devisee who accepts the provisions of a will in his favor cannot assert claims inconsistent with other provisions of such will. p. 360.</p> <p>6. Same. — Acceptance. — Purchaser with Knowledge. — Where testator devised to his widow a life estate in lands owned by them as tenants by the entirety, and she accepted the provisions thereof in lieu of her statutory rights, her grantee, with notice, received no greater right to such lands that she possessed, which was a life estate, p. 361.</p>

<p>From Lake Circuit Court; Willis O. McMahan, Judge.</p> <p>Suit by Gustav Stieglitz against Rathan Migatz. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under §133Iu Burns 1901, Acts 1901, p. 590.</p>

Erom Greene Circuit Court; Orion B. Harris, Judge. Suit by Annie V. Davis against Dallas Tyler and others. Erom a judgment of the Appellate Court (37 Ind. App. 557) affirming a decree for plaintiff, defendants appeal under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Insurance.—Life.—Policies.—Waiver.—Where a life policy, on its face, insures against death generally, but assured executes a certificate exempting the company from liability for death from a certain cause, such policy and certificate together constitute the contract, and a death from such cause is not covered by such policy, p. 369.</p> <p>2. Pleading. — Reply. — Estoppel. — Insurance. — Life.—Where plaintiffs declare upon a life policy, and the answer shows that death from the disease causing the decedent’s death was not insured against by the policy, the reply thereto, to be sufficient, must show facts sufficient to constitute an estoppel in pais. p. 370.</p> <p>3. Same. — Reply. — Insurance. — Waiver.—Forfeiture.—Where death from the disease causing the decedent’s death was not insured against, a reply on the theory of a waiver of the forfeiture of a breach of a condition subsequent is bad where it does not negative knowledge of the conditions on the part of plaintiffs, an estoppel in pais where both parties have equal knowledge being impossible, p. 370.</p> <p>4. Appeal and Error.—Reply.—Evidence.—Right Result.—The Supreme Court will examine the evidence, before reversing on a demurrer to a paragraph of reply, to ascertain whether a right result was reached, thus rendering the alleged error on such reply harmless, p. 370.</p> <p>5. Insurance.—Policies.—Exemptions.—A certificate, executed contemporaneously with the life policy, waiving all claim on account of death due to pregnancy entirely supersedes a general condition in such policy covering such death except under certain conditions, p. 370.</p> <p>6. Same. — Policies. — Pregnancy. — Septicemia. — A certificate, which is part of a life policy, exempting the company from liability for death arising from pregnancy, exempts it from liability for death caused by puerperal septicemia, p. 371.</p>

<p>1. Commerce. — Interstate. — Subjects of. — Cigarettes.—Cigarettes are a lawful subject of interstate commerce, p. 376.</p> <p>2. Same.—Interstate.—Powers of Congress.—Congress has the exclusive right to regulate interstate commerce, p. 378.</p> <p>3. Same.—Interstate.—Police Power of States.—The states may enact reasonable laws under the police powers in relation to interstate commerce where such laws are made local in character and affect such commerce only incidentally, p. 379.</p> <p>4. Same.—Interstate.—Absence of Regulation by Congress.—The absence of any regulation of interestate commerce by congress imports that such commerce should be free. p. 379.</p> <p>5. Same.-—Interstate.—State Legislation.—Police Power.—Conflict.—Where the federal laws affecting interstate commerce are in conflict with state laws passed in the exercise of police power, the federal laws control, p. 379.</p> <p>6. Same.—Interstate.—State Laws.—Police Power.—Questions Involved.—A state law passed in the exercise of the state’s police power is invalid, where such state law amounts to a regulation of, or discrimination against, interstate commerce, p. 380.</p> <p>7. Same.—Interstate.—Implication of Power to Sell.—The right to import an article which is a legitimate subject of interstate commerce imports the right to sell same in the original package, p. 380.</p> <p>8. Same.—Interstate.—State Laws.—Where the right to do a certain act in reference to an interstate shipment is an indispensable concomitant of the right to make such shipment, state legislation cannot curtail the right to do such act. p. 381.</p> <p>9. Commerce.-—Interstate.—State Laws.—Regulating Use of Shipment.—The right to import an article which is a legitimate subject of interstate commerce imports the right to make personal use of such article, p. 381.</p> <p>10. Same.—Interstate.—Federal Control.■—Where Ends.—Where an article is decided to be a legitimate subject of interstate commerce, federal control thereof does not end while the importer retains same in the original package, p. 382.</p> <p>11. Same.—Interstate.—State Laws.—Police Power.—Possession of Cigarettes.—The possession of cigarettes in the original package, imported for personal use, cannot be made a criminal act by state law, while such cigarettes are a legitimate article of interstate commerce, p. 383.</p> <p>12. Statutes. — Construction. — Cigarettes. — The act of 1905 (Acts 1905, p. 82), entitled “an act to regulate and in certain cases to prohibit the * * * keeping, * * * owning or giving away of cigarettes,” etc., and providing among other things that it shall be unlawful for any person to “keep or own” any such cigarettes, does not apply to the act of smoking cigarettes or of having them in possession for the sole purpose of smoking. Montgomery, J., dissenting, p. 388.</p> <p>13. Same.—Construction.—Cigarettes.—Contemporaneous Legislation.—The statute (Acts 1905, p. 82) prohibiting the manufacture, sale, owning or keeping of cigarettes, which does not prohibit the smoking thereof in terms, will be held not to make smoking unlawful, especially where two separate statutes were passed (Acts 1905, pp. 440 and 719) by the same legislature within a few days, both of which, in terms, forbade the smoking of cigarettes, p. 388.</p> <p>14. Words and Phrases.—'“Regulate.”—To “regulate” a thing means to lay down a rule by which the thing shall be done, p. 389.</p> <p>15. Statutes. — Title. — Construction.—Cigarettes.—An act to “regulate” and in some cases to “prohibit,” the owning or keeping of cigarettes (Acts 1905, p. 82) imports that a regulation of the right to use cigarettes was intended rather than a complete prohibition, in which case the word “regulate” would be without meaning. Montgomery, J., dissenting, p. 389.</p> <p>16. Same.—Construction.—Preference.—Rendering Act Constitutional.—-Where two interpretations of a statute are open, that is to be preferred which renders such act constitutional, p. 390.</p> <p>17. Same.—Construction.—“Keep.”—“Own.”—The statute (Acts 1905, p. 82) making it unlawful for any person to “manufacture, sell, exchange, barter, dispose of, give away, or keep for sale,” whether by himself or by his “clerk, servant, employe or agent,” or who shall “keep or own” or be “in any way concerned, engaged, or employed in owning or keeping” any cigarettes, does not make it unlawful for a person to have in his possession cigarettes for his personal use. Montgomery, J., dissenting, p. 390.</p> <p>18. Statutes. — Construction.—Words.—Noscitur a sociis.—The courts will look to the context of a statute in order to interpret the meaning and intent of the words used. p. 391.</p> <p>19. Same.—Construction.—Legislative History.—In determining the scope and intent of an act the courts may look at the legislative history of such act as an aid. p. 392.</p> <p>20. Same.—Criminal Law.—Construction.—Letter.—Spirit.—The strict construction applicable to criminal laws requires that the alleged crime shall be plainly included not only within the letter, but within the spirit of, the statute, p. 393.</p> <p>21. Same. — Criminal. — Construction.—Former Laws.—In the construction of a criminal, as well as a civil, statute the courts will consider prior legislation on the same subject in determining the intent, p. 394.</p> <p>22. Same.—In Derogation of Common Law. — Construction.— Statutes in derogation of the common law are strictly construed, and, in cases of doubt, that construction is given which accords with the common law. p. 394.</p> <p>23. Same.—Construction.—Public Policy.—The courts in construing a statute will not give weight to its views on matters of public policy which, because of doubtful intent, might be read into such statute, p. 396.</p> <p>24. Same.—Construction.—Canons of.—Violations.—Where the construction of a statute contended for involves a violation of several canons of construction, such violations will be given a cumulative force in determining the intent of such statute, p. 397.</p>

Erom Grant Circuit Court; H. J. Paulus, Judge. Suit by Lucy M. Troyer and others against the New American Oil & Mining Company and another. Erom a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

Erom Lake Superior Court; Iiarry B. Tuthill, Judge. Action by tbe State of Indiana, on the relation of Louis T. Loucks, against William Hale, as mayor of the City of East Chicago, and others. Erom a judgment for defendants, plaintiff appeals.

Erom Hamilton Circuit Court; Ira W. Christian, J udge. Suit by William Fry and others against Freeman Hare and another. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>Erom Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by Abner T. Bowen against Leonard Laird. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.</p>

From Perry Circuit Court; C. W. Cook, Judge. Suit by William Blakey, as trustee in bankruptcy of the estate of Marion Folsom, bankrupt, against the. Boonville National Bank and others. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590. •

Erom Morgan Circuit Court; Joseph W. Williams, Judge pro tern. Suit by Perry Bradford and others against Albert T. Campbell and others. Erom a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337o Burns 1901, Acts 1901, p. 565, §15.

Erom Allen Circuit Court; James O. Branyan, Special Judge. Action by tbe State of Indiana, on the relation of Cain Baker, against Jacob Funk, as county treasurer of Allen county. From a judgment for plaintiff, defendant appeals. (For opinion on transfer from Appellate Court, see 37 Ind. App. 231.)

From Sullivan Circuit Court; Orion B. Harris, Judge. Action by James Neal against tbe Indiana & Chicago Coal Company. From a judgment on a verdict for plaintiff for $500, defendant appeals. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

Erom Jay Circuit Court; John J. La Follette, Judge. Suit by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company against the Muncie & Portland Traction Company. Erom a decree for defendant on its cross-complaint, plaintiff appeals. On motion to strike appellant’s brief from the files.

<p>Habeas Corpus.—Guardian and Ward.—Immorality of Guardian. —Remedy.—Statutes.—Under §2682 Burns 1901, §2518 R. S. 1881, providing that the legal guardian, the father and mother being dead, shall have the custody of his wards, and §1121 Burns 1901, §1107 R. S. 1881, giving a guardian the right to the writ of habeas corpus, the guardian’s right to such writ cannot be denied on the ground of such guardian’s immorality, the remedy in such case being a petition for his removal under §2688 Burns 1901, §2524 R. S. 1881.</p>

<p>Erom Randolph Circuit; J. W. Macy, Judge.</p> <p>Suit by Mary Potter against Laura E. Potter Gibbs and others. Erom a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Pleading. — Complaint.—Nuisance.-—Damages.—Waters and Watercourses.—A complaint showing that defendant discharged large quantities of poisonous refuse from its pulp-mill into a creek which runs through plaintiff’s land, thereby destroying and rendering unfit for cultivation a large part thereof, killing the fish in such creek, rendering the waters of such stream unfit for agricultural or domestic purposes, causing noxious and poisonous odors to arise therefrom and reducing the value of plaintiff’s land from $100 to $60 per acre, states a cause of action for damages, p. 482.</p> <p>2. Pleading.—Complaint.—Nuisance.—Temporary.—Damages.— Waters and Watercourses.—A complaint showing that defendant discharged poisonous refuse from its pulp-mill into a creek running through plaintiff’s farm, thereby killing the fish in such creek, creating poisonous and noxious odors, rendering the waters of such creek unfit for domestic or agricultural purposes and decreasing the value of plaintiff’s land $40 per acre, shows that such nuisance was of a temporary nature, and therefore, the depreciation of rental value is an element of damages, p. 485.</p> <p>3. Same.—Complaint.—Nuisance.—Waters and Watercourses.— Damages.—Where a complaint shows that defendant polluted a creek which runs through plaintiff’s land, thereby rendering such land unfit to raise crops, and rendering such waters unfit for domestic or agricultural purposes, the diminution of the rental value of such land is recoverable without any special allegation thereof, such damage being the natural result of the wrongful acts alleged, p. 486.</p> <p>4. Nuisance. — Temporary.—Waters and Watercourses.—Damages.—Rental Value.-—-Where the nuisance caused by the pollution of a watercourse is of a temporary character, the measure of damages recoverable is the diminution of the rental value of the lands injured, during the time such nuisance is maintained. p. 487.</p> <p>5. Trial.—Instructions.—Invasion of Province of Jury.—Weighing Testimony. — Witnesses. — An instruction that the jury should give greater weight and credit to those witnesses whose means of information were superior, and to those who swear affirmatively to a fact, is an invasion of the province of the jury. Jones v. Casler, 139 Ind. 382, followed, p. 488.</p> <p>6. Appeal and Error.—Instructions.—Prejudicial Error.—Where the record fails to show that an instruction invading the province of the jury was harmless, the judgment will be reversed. p. 489.</p> <p>7. Same.—Subsequent Trial.—Questions Decided.—The Supreme Court will not decide questions not likely to arise on a subsequent trial, a reversal being ordered on other grounds, p. 489.</p>

From Superior Court of Marion County (20,706) ; Vinson Carter, Judge. Action by Bertba A. Marschke against the Indianapolis Street Railway Company. Erom a judgment on a verdict for plaintiff for $950, defendant appeals. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Pleading. — Complaint. — Demurrer. — When Amendment Avoids Ruling on.—An amendment to the complaint, during trial, where a demurrer thereto has been overruled, does not avoid such ruling where such complaint was not refiled and where the amendment was treated as made before such demurrer was overruled, p. 500.</p> <p>2. Same.—Complaint.—Bill of Particulars.—Caption of.—Surplusage.—A complaint upon a contract of direct guaranty covering an itemized account, the caption of which account was: “Sold to Larkin & Co.,” is not bad, the guaranty being for goods to be sold to “Corvin Larkin,” where the complaint alleged that such goods were sold to “Corvin Larkin,” such caption being surplusage, p. 501.</p> <p>3. Same. — Complaint. — Contracts.—When Exhibit Controls.— Where, in a complaint founded upon a written contract, the allegations of the complaint vary from the written instrument set out as an exhibit, the exhibit controls, p. 502.</p> <p>4. Guaranty.—Contracts.—Notice of Acceptance.—A written proposal by defendant in form: “Please let the bearer * * * have whatever he wants at any time, and I will see that the same is paid for,” constitutes, when accepted, a contract of direct guaranty and requires neither notice of acceptance nor of the principal’s default, p. 502.</p> <p>5. Same.—Pleading.—Failure to Give Notice of Default.—Answer.—The failure to notify defendant indirect guarantor of his principal’s default constitutes a defense, p. 504.</p> <p>6. Parties.—Guaranty.—In an action on a contract of direct guaranty it is not necessary to make the principal a party defendant. p. 504.</p> <p>7. Guaranty. — Contraéis. — Abandonment of. — Subsequent Credits.—Where the creditor returns the contract of guaranty to the guarantor to be renewed, stating it was “no good anyhow,” and gave no directions for its return in case it was not renewed, such guaranty ceases, and credit subsequently extended by the creditor cannot be charged against such guarantor, p. 505.</p> <p>8. Principal and Surety.—Contracts.—Revival of Liability.— Sureties are favorites of the law; and their liability must be found within the terms of their consent; and liability once terminated cannot be revived by any subsequent arrangement between the principal and creditor without the consent of the surety, p. 509.</p>

<p>From Superior Court of Marion County (69,185) ; Virtr son Carter, Judge.</p> <p>Proceedings in eminent domain by the Indianapolis & Western Railway Company against Samuel L. J. Morrison and others. From an interlocutory order overruling defendants’ objections to the complaint, certain defendants appeal.</p>

Erom Tipton Circuit Court; J. F. Elliott, Judge. Suit by Jonas A. Wimer against Thomas W. Longfellow as Auditor of Tipton County and others. Erom a decree in favor of plaintiff on his complaint and on the cross-complaint of the State of Indiana, on relation of Thomas W. Longfellow, as Auditor of Tipton County, the cross-complainant ajppeals. Transferred from the Appellate Court under §1337u- Burns 1901, Acts 1901, p. 590.

<p>1. Pleading. — Complaint.—Easements.—Ownership.—Prescription.—As every easement lies in grant, actual or presumed, an allegation' of ownership is sufficient, leaving the evidence to show the right by prescription, p. 539.</p> <p>2. Easements.—Elements.—An easement by prescription consists of the adverse, exclusive, uninterrupted and continuous use of real estate under a claim of right and with the knowledge and acquiescence of the owner thereof, p. 539.</p> <p>3. Evidence.—■Judicial Notice.—Canals.—Berm.—Use of.—Courts take judicial notice that the berm of a canal serves to prevent back-lying material from falling into the canal, p. 541.</p> <p>4. Easements. — Prescription. — Limitation of Actions. — The twenty-year statute of limitations applies to cases of easement by prescription, though it formerly did not. p. 544.</p> <p>5. Same.—Grants.—Bight to Disprove.—Prescription.—Evidence. —In an action to establish an easement by prescription, the owner of the servient estate cannot prove that a grant was not actually made, but he may show that the plaintiff’s holding was such that it could not ripen into a legal title, p. 544.</p> <p>6. Easements.—Twenty-Years’ User.—Burden of Proof.—Claim of Right.—Where the plaintiff shows an open use of a way, apparently as owner, for twenty years, the burden of disproving his prescriptive right to an easement is on the defendant, and this may be done by proof that such use was not under a claim of right, p. 544.</p> <p>7. Same. — Grants. — Presumptions. — Grants are presumed in cases of alleged easements where the facts are such as that the use shown would otherwise be unreasonable, but where the facts shown are consistent with the non-existence of a grant, as where the user was merely permissive, an easement will not be presumed, p. 545.</p> <p>8. Same.—Open Space.—Use of.—Presumptions.—The use by the plaintiff for his own purposes of an open space, left by an owner for the use of his customers, raises no presumption of a grant, and the fact that the use was shared by the public raises the presumption that plaintiff was not claiming such way as his individual right.- p. 546.</p> <p>9. Same.—Use of Insignificant Tract.—Presumptions.—The use of an insignificant tract of open lot, being of practically no value to the owner, does not give rise to a presumption of a grant, but rather that such use is merely permissive, p. 546.</p> <p>10. Same. — Claim of Right.—Evidence.—Where the evidence shows that the plaintiff and her grantors had used a way over twenty years without making any claim of right thereto, an easement therein is not shown, p. 547.</p>

<p>From Vanderburgh Circuit Court; Louis O. Bosch, Judge.</p> <p>Prosecution by the State of Indiana against Marie Stieler. From a judgment of conviction, defendant appeals.</p>

<p>1. Contracts.—Officers.—Duty.—Public Policy.—A contract entered into by a public officer, the tendency of which is to lessen his performance of public duty, is contrary to public policy, and void. p. 552.</p> <p>2. Same.—Violation of Statutes.—Contracts entered into in violation of statutes are void. p. 552.</p> <p>3. Principal and Agent.—Officers.—Serving Two Masters.—An agent cannot serve two masters whose business transactions may be antagonistic, p. 553.</p> <p>4. Officers. — Highway Superintendent.—Statutes.—A person appointed by the board of commissioners as the superintendent of the construction of a highway under §6869 Burns 1901, Acts 1901, p. 439, §2, is a public officer; and it is his duty to protect the public’s interest in the construction of such highway, p. 553.</p> <p>5. Contracts. — Officers.—Highway Superintendents.—Working for Contractors.—A contract by which a highway superintendent agrees to labor for the contractors for the construction of such highway, is void, though no fraud be shown, the law requiring officers to occupy a position free from the appearance of evil. p. 554.</p> <p>6. Trial.—Contracts.—Complaint.—General Denial.—What Admissible Under.—A general denial to a complaint counting upon an agreement of defendant highway contractors to pay plaintiff highway superintendent $1.50 per day for labor on such highway requires plaintiff to establish a contract under which he has a right to recover, and any evidence going to destroy the cause of action is admissible thereunder, p. 556.</p>

<p>1. Bankruptcy.—Debts Provable.—Not Due.—Obligations of a bankrupt, not due at the time of the filing of his petition in bankruptcy, are provable against his estate under §63 of the Statute of 1898 (30 Stat., pp. 544, 562, U. S. Comp. Stat. 1901, p. 3447). p. 559.</p> <p>2. Same.—Debts Provable.—The mortgagee of a bankrupt may prove the mortgage debt as a claim against the estate of the bankrupt mortgagor under §63 of the statute of 1898 (30 Stat., pp. 544, 562, U. S. Comp. Stat. 1901, p. 3447). p. 559.</p> <p>3. Same.—Debts Provable.—Contingent Contracts.—Guaranty.— The obligation of a mortgagor to his grantee to pay the mortgage on lands conveyed to his grantee is not “contingent” until default so as not to be a fixed liability absolutely owing before default in payment thereof, p. 560.</p> <p>4. Same.—Creditor Failing to File Claim.—Rights of Surety or Guarantor.—Under subd. i, §57 of the act of 1898 (30 Stat., pp. 544, 560, U. S. Comp. Stat. 1901, p. 3443) the surety, guarantor, indorser or other person secondarily liable may, on failure of the creditor to file his claim against the principal debtor, file such claim in such creditor’s name. p. 560.</p> <p>5. Same.—Discharge.—Debts Extinguished.—The discharge of a mortgagor in bankruptcy extinguishes, by virtue of §17 of the act of 1898 (30 Stat., pp. 544, 550, U. S. Comp. Stat. 1901, p. 3428), his obligation to his grantee to pay his mortgage though such obligation had not matured at the time of the filing of his petition in bankruptcy, p. 561.</p>

<p>From Vermillion Circuit Court; A. F. White, Judge.</p> <p>Action by Jacob W. McGlosson against the Seelyville Coal & Mining Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under §1337m Burns 1901, Acts 1901, p. 565, §13.</p>

<p>Erom Wells Circuit Court; Edwin O. Vaughn, Judge.</p> <p>Suit by William L. Jones against Harry Mount and another. Erom a decree for defendants, plaintiff appeals. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.</p>

Erom Monroe Circuit Court; James B. Wilson, Judge. Suit by the Trustees of Mt. G-ilead Cemetery and another against Patrick McCann and others. Erom an interloeutory order granting a temporary restraining order, defendants appeal.

From Floyd Circuit Court; William G. Utz, Judge. Suit by the Aetna Life Insurance Company against Henry B. Broeker and others. From an interlocutory order denying plaintiff’s application for a receiver, plaintiff appeals.

<p>1. Appeal and Error.—Decisions of Federal Supreme Court.— Binding Force.—The decision of the United States Supreme Court in a cause taken by writ of error from the Supreme Court of Indiana is binding on such Indiana court, p. 581.</p> <p>2. Statutes.—Construction.—Railroads.—Contracts.—The act of 1847 (Local 'Laws 1847, p. 77), creating the corporation, the Terre Haute & Richmond Railroad Company, afterwards changed to the Terre Haute & Indianapolis Railroad Company, and providing that after payment of the original cost and ten per cent dividends on the investment per annum the legislature should have the right to regulate the toll, and that all net profits above fifteen per cent on the investment per annum should be paid to the State is permissive and discretionary, and requires regulation by the State as a condition precedent to recovery by the State, p. 582.</p> <p>3. Estoppel.—Wrongful Acts.—Talcing Advantage of.—An evildoer will not be permitted to take advantage of his own fraudulent, corrupt or criminal conduct, p. 582.</p> <p>4. Constitutional Law.—Legislative Action.—Fraud.—Bribery. —Railroads.—Where legislative action is required to perfect the State’s right to certain profits received by a railroad company (see Local Laws 1847, p. 77), courts will not hear and determine a charge of fraud and corruption of the legislature by such company to prevent or supply such action, p. 583.</p> <p>5. Same.—Legislative Action.—Right of Court to Presume Character of.—Supplying of.—The courts cannot presume what the character of legislative action would have been in the absence of alleged fraud and corruption of the legislature, and the courts cannot supply omitted legislation, p. 584.</p>

From Fayette Circuit Court; George L. Gray, Judge. Prosecution by tbe State of Indiana against George Eoberts. From a judgment overruling tbe State’s demurrer to defendant’s plea in abatement and discharging defendant, the State appeals.

<p>1. Courts.—Officers.—Clerk of Supreme Court.—The Clerk of the Supreme Court is an officer thereof, whose duty is to record the proceedings of such court and keep the papers and records thereof p. 601.</p> <p>2. Same. — Records. — Clerk. — Control by Court. — The records and papers in the office of the Clerk of the Supreme Court are subject to the inspection and control of the court, and such clerk, being a ministerial officer, has the right to ask the advice of such court as to his duties, p. 602.</p> <p>3. Same. — Supreme. — Inherent Powers. — The Supreme Court has the inherent power to entertain a petition from its clerk in regard to his duties in reference to its decisions, p. 602.</p> <p>4. Same.—Decisions of Supreme.—Control Over, by Clerk—The Clerk of the Supreme Court has control over the decisions of such court; and the public has only a restricted right to inspect and copy same. p. 603.</p> <p>5. Pees and Salaries.—Clerk of Supreme Court.—Statutes.— The act of 1895 (Acts 1895, p. 319, §§8, 19, §§6412, 6423 Burns 1901) gives the Clerk of the Supreme Court a stated salary and requires the fees collected to be paid into the state treasury. p. 604.</p> <p>6. Same.—Clerk of Supreme Court.—Right to Charge Less than Statutory Rate.—The Clerk of the Supreme Court has no legal right to charge less than the statutory rate for prescribed official services, .p. 605.</p> <p>7. Statutes.—Fees and Salaries.—Copies of Records.—What Are. —Evidence.—The statute (§7798 Burns 1901, §5831 R. S. 1181), providing that the Clerk of the Supreme Court shall charge “for every copy of record * * * per one hundred words, * * * fen cents” refers to certified copies admissible in evidence under §466 Burns 1901, §462 R. S. 1881, and not to uncertified or carbon copies, p. 607.</p> <p>8. Same.—Construction.—Contemporaneous Affairs.—Courts will consider affairs contemporaneous with the passage of a statute in the construction thereof, p. 608.</p> <p>9. Mandamus.—Clerk of Supreme Court.—Uncertified Copies of Decisions.—-The Clerk of the Supreme Court cannot be compelled by mandate to furnish any person uncertified copies of decisions of such court, p. 608.</p> <p>10. Statutes.—Construction.—Subsequent Kindred Statutes.— In the construction of a statute the courts may consider subsequent statutes involving the same subject-matter, p. 608.</p> <p>11. Pees and Salaries.—Clerk of Supreme Court.—Uncertified, Copies of Decisions.—The Clerk of the Supreme Court may lawfully contract for furnishing uncertified carbon copies of the decisions of the Supreme Court at a less rate than certified copies, there being no statute covering same. p. 609.</p> <p>12. Courts. — Supreme and Appellate.—Decisions.—Bight to Publish.—Any person has the right to publish the decisions of the Supreme and Appellate Courts, pp. 609, 610.</p> <p>13. Same. — Supreme and Appellate.—Decisions.—Copyright.— The decisions of the Supreme and Appellate Courts cannot be copyrighted, but the syllabi may be. p. 610.</p>

<p>From Porter Circuit Court; William B. Biddle, Special Judge.</p> <p>Action by the Eddy Valve Company against tbe Town of Crown Point and others. From a judgment for defendants, plaintiff appeals.</p>

Erom Daviess Circuit Court; H. Q. Houghton, Judge. Petition by John Daily, as County Assessor of Daviess County, for an inspection of the books of the Washington National Bank. Erom an interlocutory order granting same, such bank appeals.

<p>Erom Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Suit by Emma B. Collier against Nancy J. Scott and another. Erom a decree for plaintiff, defendants appeal. Appealed from Appellate Court under subd. 3, §1337] Burns 1901, Acts 1901, p. 565, §10.</p>

Erom Tippecanoe Circuit Court; B. P. DeHart, Judge. Suit by Gustave Meyer and another against W. Bent Wilson and another. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §133lu Burns 1901, Acts 1901, p. 590.

<p>From Laporte Circuit Court; John O. Richter, Judge.</p> <p>Action by Robert Melrose against tbe Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $21,170, defendant appeals. 'Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Wills. — Contest.—Parties.—Statutes.—Under §2766 Bums 1901, §2596 R. S. 1881, any interested person may, within three years after a will has been offered for probate, contest the validity of same, making all other interested persons and the executor of such will parties defendant, p. 675.</p> <p>2. Pleading. •—■ Answer.—Presumptions.—Wills.—Executors and Administrators.—Settlement.—In a will contest, an answer that the executor of such will had collected the money due and distributed defendants’ shares to them and had, under the court’s orders, paid plaintiffs’ shares to the clerk, and which answer failed to show any act in reference to the real estate, will be presumed to refer only to the personalty, p. 676.</p> <p>3. Wills.—Contest.—Executors and Administrators.—Settlement. —The approval, by the court, of the final report of an executor, together with an order of distribution of the testator’s property, is no defense to an action to contest testator’s will. p. 676</p> <p>4. Judgment.—Res Judicata.—Wills.—Contest.-—-Executors and Administrators.—Final Report.—The approval by the court of an executor’s final report is not an adjudication that the testator was of sound mind and that the will was duly executed, p. 677.</p> <p>5. Same.—Res Judicata.—Executors and Administrators.—Final Report.—The approval by the court of the final report of an executor, the statutes relating thereto having been complied with, is res judicata as to all matters properly included therein, p. 677.</p> <p>6. Same.—Res Judicata.—-Executors and Administrators.—Final Report.—Wills.—Contest.-—There being no statute permitting an executor to make an issue, in his final report, of the validity of the will nominating him, the judicial approval of such report is not an adjudication of such validity, p. 679.</p> <p>7. Estoppel.—Wills.—Contest.—Executors and Administrators. —Final Report.—The failure to litigate or object to an executor’s final report does not estop an heir from contesting the validity of testator’s will, such heir having refused to accept anything under the provisions of such will. p. 680.</p>

<p>1. Statutes.—Adoption of.—Subsequent Amendments of Adopted Statutes.—Where one statute by a specific and descriptive reference adopts another as a part thereof, the subsequent amendment of such adopted statute has no effect upon such adopting statute, p. 682.</p> <p>2. Same.—Adoption of.—Subsequent Amendments of Adopted Statutes.—Subsequent amendments to statutes adopted generally by another statute, become a part of such adopting statute. p. 682.</p> <p>3. Same.—Taxation.—Municipal Corporations.—City of Evansville.—Acts 1903, p. 230, §§8603a-8603c Burns 1905, providing for the sale, to the highest bidder, of lands for delinquent taxes, after having been unsuccessfully offered two successive years, applies by virtue of §4052 Burns 1901, Acts 1895, pp. 258, 292, §148, to the city of Evansville, though the act of 1901 (Acts 1901, p. 73, §1, §4052a Burns 1901) authorizes such city to foreclose its lien for taxes and sell the delinquent property after its unsuccessful exposure to sale three successive times, p. 683.</p> <p>4. Statutes.—Repeal.—Taxation.—The act of 1903 (Acts 1903, p. 230, §§8603a-8603c Burns 1905), providing for sale, to the highest bidder, of lands unsuccessfully exposed two successive times for sale for delinquent taxes, does not repeal section one of the act of 1901 (Acts 1901, p. 73, §4052a Burns 1901), providing for foreclosure of tax liens, by certain cities, after three unsuccessful exposures to sale for delinquent taxes, p. 683.</p>

<p>Erom Superior Court of Madison County; Henry O. Ryan, Judge.</p> <p>Suit by Idelia Beales against the Indiana Natural Gas & Oil Company. Erom a decree for plaintiff, defendant appeals. Transferred from Appellate Court under subd. 2, §1331 j Burns 1901, Acts 1901, p. 565, §10.</p>

From Madison Circuit Court; John F. McClure, Judge. Action by tbe State of Indiana, on the relation of Edward Brougb, against John Terheide and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §133^ Burns 1901, Acts 1901, p. 590.

<p>Erom Allen Circuit Court; John M. Smith, Special Judge.</p> <p>Prosecution by the State of Indiana against Charles W. Dunn. Erom a judgment of conviction, he appeals.</p>

<p>From Washington Circuit Court; T. B. Buskirk, Judge.</p> <p>Action by the Town of Salem against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Suit by Solomon Wolff and others against the New American Oil & Mining Company and another. Prom a decree for plaintiffs, defendants appeal.</p>