Volume 167 — Indiana Reports

<p>1. Injunction. — Temporary.—Evidence.—Affidavits.—Information and Belief.—It is sufficient, where a temporary injunction is prayed, for the plaintiff to file his affidavit setting forth the facts upon information and belief, supported by an affidavit of the facts by some person cognizant thereof, p. 7.</p> <p>2. Same.—Temporary.—Evidence.—Affidavits.—Information and Belief.—No Denial.—A temporary injunction may be granted upon plaintiff’s affidavit upon information and belief where the defendant, after notice, fails to deny the truth of the matters alleged, p. 7.</p> <p>3. Same. — Temporary. — Evidence.—Complaint.—Mere allegations in a complaint, of apprehensions or fears, unsupported by proof will not sustain an injunction, p. 7.</p> <p>4. Same. — Temporary. — Evidence. — Discovery. — Information and Belief.—Plaintiff in an application for a temporary injunction is entitled to a discovery from defendant upon setting out the facts upon information and belief; and if defendant, after opportunity given, fails to deny same, the court may grant such injunction, p. 8.</p> <p>5. Same.—Temporary.—State Board of Medical Registration and Examination.—Physicians.—License.—Plaintiff’s affidavit upon information and belief that the state board of medical registration and examination has conspired with the prosecuting witness to have charges filed against him, and that such board will revoke his license without any trial, supported by an affidavit of certain alleged admissions by the board’s attorney, does not sustain a temporary injunction, where the members of such board by affidavits deny the allegations against them, and their attorney likewise denies such alleged admissions, p. 9.</p> <p>6. Injunction.—Temporary.—Prosecuting Witness Outside of State.—Effect.—The fact that the prosecuting witness is outside of the State is no ground for an injunction to prevent the State Board of Medical Registration and Examination from trying the plaintiff, a licensed physician, upon the charge of immoral conduct, in a proceeding to revoke his license, p. 9.</p> <p>7. Evidence.—Admissions of Attorney.—Admissions of an attorney at law are not evidence against the client, p. 10.</p> <p>8. Constitutional Law. — Constitution of United States.— Whether Applicable to State Laws.—Article 3, §2, and the fifth and sixth amendments of the United States Constitution do not apply to laws enacted by the states, but only to prosecutions in the United States courts, p. 10.</p> <p>9. Same.—Physicians.—License.—Police Power.—Prescribing the qualifications of physicians and surgeons and regulating the practice of such professions, are valid subjects of legislation under the police power, p. 11.</p> <p>10. Same. — Physicians. — License.—Revocation.—Statutes providing for the revocation of the license of a physician, for felony or gross immorality, do not violate the United States or state Constitutions, p. 12.</p> <p>11. Physicians.—License.—Revocation.—State Board of Medical Registration and Examination.—Courts.—The grant of a license to a physician, or its revocation, by the State Board of Medical Registration and Examination, is not the exercise of judicial power, p. 12.</p>

From Carroll Circuit Court; John C. Nye, Special Judge. Action by the State of Indiana, on the relation of William L. Jett and others, against George R. Ives and others. From a judgment for defendants, plaintiff appeals.

From Noble Circuit Court; Edwin C. Vaughn, Special Judge. Proceedings by John N. Strayer and others to establish a drain, against which Henry L. Taylor remonstrates. From an order establishing said drain, remonstrant appeals.

From Pulaski Circuit Court; John C. Nye, Judge. Action by William M. Quick against John Parratt, as trustee of Rich Grove township, and another. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Wells Circuit Court; Edwin C. Vaughn, Judge. Suit by William D. Friend against Joseph W. Littler and others. From a decree for plaintiff, defendants Littler and another appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Fountain Circuit Court; Joseph M. Rabb, Judge. Suit by David S. Ferguson against the City of Covington and others. From a decree for plaintiff, defendant city appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Tipton Circuit Court; James F. Elliott, Judge. Suit by George L. Todd and others against Ira F. Crail and others. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Tipton Circuit Court; James F. Elliott, Judge. Gravel road proceedings by Asa E. Mott and others, against which Allen F. Spaulding and others remonstrate. From an order establishing such road, remonstrants appeal.

From Laporte Circuit Court; Walter A. Funk, Special Judge. Drainage petition by the Laporte Land Company, against which Edith Morrison and others remonstrate. From a judgment against petitioner, it and another appeal.

From White Circuit Court; T. F. Palmer, Judge. Drainage proceedings by John P. Carr and others, against which Ophelia F. Duhme and others remonstrate. From a judgment sustaining remonstrants’ motion to remand the cause to the board of commissioners, petitioners appeal.

<p>1. Appeal and Error.—Supreme Court Rules.—Briefs.—A failure by appellant to prepare his transcript as prescribed by rule 3 of the Supreme Court, and to prepare his brief according to rule 22, especially after objection has been made because thereof, is fatal to any questions sought to be presented by such appeal, p. 84.</p> <p>2. Same.—Dismissal.—Affirmance.—Discretion of Court.—Where the year within which an appeal may be taken has not expired, and appellant has failed to comply with the court rules in presenting his case on appeal, the Supreme Court may, in its discretion, dismiss the appeal instead of affirming the judgment, p. 85.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Charlotte Jacobs against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $550, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Pike Circuit Court; E. A. Ely, Judge.</p> <p>Prosecution by the State of Indiana against Charles B. Thomson. From a judgment of acquittal, the State appeals.</p>

<p>1. Appeal and Error.—Supreme Court Rules.—Briefs.—Appellant’s brief will not be disregarded where a good-faith attempt has been made to comply with the Supreme Court rules and enough of- the record has been set out to present the questions raised, p. 99.</p> <p>2. Contracts.—Execution of.—Order for Engine.—An order for an engine, signed by the agent of the manufacturers thereof, but not by plaintiff, though it specifies that when it is accepted at the home office it becomes a binding contract, is not a contract on the part of plaintiff, though such order was accepted and ratified by defendant, p. 100.</p> <p>3. Pleading. — Complaint. — Exhibits.—Variation.—Where the contract set out as an exhibit varies from the contract as alleged in the body of the complaint, the exhibit controls. p. 100.</p>

From Huntington Circuit Court; Levi Mock, Special Judge. Suit by Emma L. Krieg against John Heaston, as executor of the will of Esther McGlinn, deceased, and others. From a decree for plaintiff, defendants appeal.

<p>1. Judgment.—Collateral Attach.—Industrial School for Girls. —Commitment.—The judgment, though erroneous, of a court of superior jurisdiction committing a married girl under fifteen years of age to the Indiana Industrial School for Girls under the act of 1903 (Acts 1903, p. 91) is not subject to a collateral attack, where the court had jurisdiction over the person, p. 123.</p> <p>2. Habeas Corpus.—To Release Prisoner.—Collateral Attach.— An attempt, by habeas corpus, to obtain the release of a person in custody under the judgment of a court is a collateral attack on the judgment of such court, p. 124.</p> <p>3. Same.—Correcting Errors.—Appeal and Error.—The writ of habeas corpus cannot be used to correct the errors a court-may have made in its judgment committing the plaintiff, p. 124.</p> <p>4. Parties.—Husband and Wife.—Industrial School for Girls.— Commitment.—In a proceeding to commit an alleged incorrigible girl under fifteen years of age to the Industrial School for Girls (Acts 1903, p. 91), the husband of such girl is neither a proper nor a necessary party, p. 124.</p> <p>5. Judgment.—Collateral Attack.—Issues.—Questions Capable of Litigation.—All questions which might have been litigated under the issues in a cause are conclusively settled by the judgment therein as against a collateral attack, p. 126.</p>

<p>Appeal and Error.—Vacation Appeal.—Parties.—Assignment of Errors.—Where one of two joint judgment defendants appeals and does not make his codefendant a party to the assignment of errors, the appeal will be dismissed, though notice of such appeal was served on such codefendant.</p>

From Allen Circuit Court; Owen N. Heaton, Special Judge. Drainage proceedings by John S. Driver and others against which Henry Beery and others remonstrate. From a judgment for petitioners, remonstrants appeal.

From Marion Circuit Court (11,873); Henry Clay Allen, Judge. Action by Jerry Foley against Denis O’Donaghue, as executor of the will of Mary O’Connell, deceased, and others. From a judgment for defendants, plaintiff appeals.

<p>1. Municipal Corporations.—Liability.—Schools.—Charities.— Police Power.—Municipal corporations are not ordinarily liable for their conduct in reference to schools or charities, or in the exercise of the police power, such conduct being governmental and not local, p. 141.</p> <p>2. Same.—Purely Corporate Acts. — Liability-.—Municipal corporations are liable for negligence in the performance of purely corporate acts the same as an individual doing similar acts, p. 142.</p> <p>3. Same. — Streets. — Defects. — Liability. — Grounds of.—The grounds of municipal liability for damages caused by defects in streets are the municipality’s exclusive control over the streets and power of taxation for the repair thereof, p. 143.</p> <p>4. Same.—Streets.—Lighting.—Duty as to Statutes.—Municipal corporations, under §4301 Burns 1901, Acts 1883, p. 85, §1, may light their streets, but are not required, either expressly or by implication, to do so. p. 144.</p> <p>5. Same.—Liability.—Voluntary Exercise of Power.—The fact that a municipal corporation voluntarily exercises certain powers, is a large factor in determining whether the municipality is liable for negligence in the performance of such powers, p. 144.</p> <p>6. Same.—Liability.—Voluntary Acts for Corporate Advantage. —Municipal corporations are ordinarily liable for negligence in the performance of acts voluntarily done for their own advantage. p. 144.</p> <p>7. Same.—Proprietorship.—Liability.—Maxims.—Sic utere tuo ut alienum non laedas.—Municipal corporations are liable, as other proprietors, for negligence in the care and control of their property voluntarily acquired for purposes partly or wholly corporate, p. 145.</p> <p>8. Same.—Streets.—Electric Lights.—Whether Governmental or Corporate Function.—Prevention of Damage Suits.—While the lighting of streets incidentally checks crime and immorality and thus serves a governmental purpose, such lighting also becomes a corporate utility, sufficient to make municipal corporations liable for negligence therein, by the fact that it is of local convenience and prevents many damage suits brought Because of injuries from defective streets, the derivation of an income therefrom being unnecessary to establish such liability, p. 146.</p> <p>9. Municipal Corporations.—Liability.—Proprietorship.—Governmental and Corporate Purposes.—Where property is voluntarily held for benefits accruing to the municipality, or as a means of attaining such benefits, though it may also serve a governmental purpose, the municipality is liable for negligence in the control thereof, p. 147.</p> <p>10. Same.—Streets.—Failure to Light.—Negligence.—The failure of a municipal.corporation to light its streets, unless required by statute to do so, does not constitute negligence, p. 149.</p> <p>11. Same,—Liability.—Electric Lights.—A municipal corporation is liable ex delicto for negligence in the management of its electric light plant, p. 150.</p> <p>12. Same.—Liability.—Immunity.—Public Policy.—Public policy requires that the doctrine that municipal corporations are not liable for negligence in the performance of purely governmental matters, shall be kept strictly within its limits, official vigilance to prevent private wrongs being desirable, p. 150.</p> <p>13. Pleading. — Complaint. — Municipal Corporations. — Negligence.—Proximate Cause.—A complaint alleging that defendant city negligently suffered one of its electric light wires to become weak and rotten, and that the fall of such wire caused plaintiff’s injuries, is bad, since it fails to show that such wire fell because of its weak and rotten condition, p. 150.</p> <p>14. Appeal and Ereor.—Technicalities,—Merits.—Where the decision of the trial court was technically right, but wrong on the merits, the Supreme Court will ordinarily decide the case on the merits, especially where the merits of the case must be tried again in the lower court, p. 151.</p> <p>15. Same.—Revision of Judgments.-—Power of Supreme Court.— The general authority of the Supreme Court to review the judgments of lower courts necessarily includes the right to administer justice regardless of technicalities and arbitrary rules, p. 151.</p> <p>16. Same.—Decisions.—Right to Annex Conditions.—The Supreme Court has the right, in order to administer justice, to mould its decisions so that proper amendments may be made or pleadings be filed below, and the merits of the case determined. p. 152.</p> <p>17. Same. — Defective Complaint. — Negligence.—Limitation of Actions.—Affirmance.—A judgment for defendant on demurrer to a complaint, technically bad, will be affirmed, where the statute of limitations has not barred a new action for the same cause, p. 152.</p>

From Lake Superior Court; H. B. Tuthill, Judge. Suit by Philip Steinmetz, Jr., by his next friend, against the G. H. Hammond Company. From a decree for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>Appeal and Eeeoe.—Record.—Motion for New Trial.—Bill of Exceptions.—A motion for a new trial, contained only in the bill of exceptions in the transcript on appeal, is not a part of the record; and error assigned on the overruling of same cannot be considered.</p>

<p>1. Appeal and Error.—Briefs.—Omissions by Appellant.—Supply by Appellee.—Where the necessary parts oí the record to present the errors assigned are not set out in appellant’s brief, but the appellee’s brief supplies same, such errors will be considered. p. 164.</p> <p>2. Same. — Weighing Evidence. — Quieting Title. — Jury.—The Supreme Court will not, under §641h Burns 1905, Acts 1903, p. 338, §8, weigh the evidence in a quiet-title- case, since such case is triable by jury. p. 164.</p> <p>3. Quieting Title.—Boundaries.—Parol Partition.—Where heirs divide lands, giving to plaintiff fourteen acres from the west side of an eighty-acre tract, the other heirs selling their tracts to defendant’s grantor, and the plaintiff and such grantor orally established the boundary line and built a fence thereon, maintaining the same ten years, the defendant purchasing from the grantor such tract, “except fifteen acres” off of the west end, such purchased tract containing sixty-five acres “more or less,” plaintiff is entitled to a decree quieting his title to the lands up to such fence, especially since defendant knew of such division and since the other heirs and such grantor subsequently conveyed to him all land within the boundaries marked by such fence, p. 164.</p> <p>4. Action. — Parties. — Reformation of Instruments.—Deeds.— Quieting Title.-—Plaintiff, by joining his grantor with the adjoining owner as a codefendant, may have reformation of his deed to cover a certain tract intended to be included in such deed, and also quiet his title to such tract as against such adjoining owner, p. 168.</p> <p>5. Notice.—Possession. — Quieting Title. — The possession of lands up to a fence is notice, to a purchaser of adjoining lands, of title by such possessor, p. 168.</p> <p>6. Deeds.—Description. — Acres Conveyed.—-“More or Less.”— The words “more or less” following the number of acres conveyed by a deed, usually characterize such number as matter of description and not of the essence of the contract, p. 169.</p> <p>7. Partition. — Parol.—Boundaries.—Estoppel.—Limitation of Actions.—Adverse Possession. — A parol agreement, without fraud, fixing an unknown or disputed boundary line, acted upon by the parties, estops such parties or those claiming under them from afterwards disputing such line; and the possession held under such agreement need not be shown to be adverse for the period prescribed by the statute of limitations, p. 169.</p> <p>8. Deeds.—Boundaries.—Disputed Title.—Where a grantor conveyed certain lands, bounded by a fence, located, though erroneously, on the supposed line, said conveyance containing in fact fewer acres than was supposed, a subsequent deed by the grantor and others interested of the disputed tract beyond the fence puts at rest the title to said disputed tract as against any claims of the grantee of the lands bounded by such fence, p. 170.</p> <p>9. Evidence.—Parol.—Contracts.—Boundaries.—Partition.—In a suit to quiet title to lands enclosed by a fence, evidence of a parol agreement between plaintiff and defendant’s grantor that such fence should mark the true boundary line between their lands, is admissible, p. 171.</p>

<p>1. Discovery.—Examination of Parties.-—Refusal.—Contempt.— Appeal and Error.—A proceeding for contempt for refusal to comply with §521 Burns 1901, §513 R. S. 1881, providing that if a party refuse to attend and be examined prior to a trial, he “may be punished as for a contempt,” is governed, as to procedure, by §1025 Burns 1901, §1013 R. S. 1881, providing for punishment of persons guilty of indirect contempt and giving a right of appeal, p. 174.</p> <p>2. Discovery. — Parties.—Examination.—Refusal.—Contempt.— Indirect.-—Appeal and Error.—The punishment of a party, by striking out his complaint for refusing to be examined as provided by §521 Burns 1901, §513 R. S. 1881, is governed, as to an appeal, by that provision of §1023 Burns 1901, §1011 R. S. 1881, which gives the defendant the right to “except to the opinion and judgment of the court.” p. 175.</p> <p>3. Appeal and Error.—Right of, in Contempt.—Statutes Governing.—The right of appeal in cases of contempt, except where a fine of “$50 or more” or imprisonment is imposed (§1023 Burns 1901, §1011 R. S. 1881), is governed by the general statutes concerning appeals, p. 175.</p> <p>4. Contempt.—Indirect.-—-Examination of Parties.—Refusal.— New Trial.—In a case of indirect contempt for a party’s refusal to be examined, as prescribed by §521 Burns 1901, §513 R. S. 1881, a motion for a new trial is not necessary to present the case on appeal, since the sole question to be decided is whether the party has fully answered the charge made. p. 175.</p> <p>5. Appeal and Error. — Contempt.—Indirect.-—-Examination of Parties. — Refusal. — Striking Out Complaint.—Exceptions.— An exception to the “opinion and judgment of the court,” assigned as error on appeal, in a case of indirect contempt, wherein the court struck out plaintiff’s complaint under §521 Burns 1901, §513 R. S. 1881, for his refusal to be examined as a witness before trial, properly presents the question of the correctness of the court’s ruling below, p. 176.</p> <p>6. Trespass.—Entry of House by Legal Process.—Examination of Party.—Discovery.—Plaintiff may lawfully refuse to permit defendant’s attorneys and a notary public to enter his house for the purpose of taking his examination as a party to his action, p. 176.</p> <p>7. Pleading. •—• Answer.—Conclusiveness of.—Contempt.—Indirect.—Defendant’s answer in a proceeding for an indirect contempt imports absolute verity, and must be so considered by the court, p: 177.</p> <p>8. Constitutional Law. — Substantive Rights. — Procedure.— Substantive rights protected by the Constitution are of primary importance to the courts, the procedure or method of attaining them being secondary and subordinate, p. 177.</p> <p>9. Trespass—Entry of House.—Breach of Legal Right.—Matters in Aggravation.—The invasion of a person’s right to security and liberty constitutes a trespass; and wrongs done after such invasion are merely in aggravation of such trespass, p. 177.</p> <p>10. Trespass.—Waiver.—Entry of House by Legal Process.—Examination of Party.—The process served upon a party requiring him to submit to an examination as a witness in his own house is invalid, and he does not waive his' right to object thereto by failing to refuse permission at the time of service, his abandonment of the house and locking the door being sufficient notice of refusal.- p. 178.</p>

<p>1. Indictment and Information.—Assault and Battery with Intent.—An affidavit charging that defendant did “unlawfully, feloniously, purposely and with premeditated malice, and in a rude, insolent and angry manner, unlawfully and feloniously touch, cut, beat and strike with his fist, and with a knife * * * , with the intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely and with premeditated malice to kill and murder,” does not state an offense, since it fails to show that any person was assaulted, p. 180.</p> <p>2. Same.—Motion in Arrest.—Criminal Laui.—An affidavit containing all of the essentials of a crime, though the facts are defectively charged, is good on motion in arrest of judgment, such defects being reached only by a motion to quash, p. 181.</p> <p>3. Same.—Motion in Arrest.—Motion to Quash.—An affidavit omitting an essential fact of the crime charged is bad on motion to quash or on a motion in arrest of judgment, p. 182.</p> <p>4. Same. — Certainty. — Statutes. — Under §§1832, 1833 Burns 1905, Acts 1905, pp. 584, 625, §§191, 192, providing as to the sufficiency, and against the quashing of, defective affidavits and indictments, reasonable certainty is necessary in charging a crime, p. 182.</p> <p>5. Same. — Names of Injured Persons. — Identification. — The name of the injured person, or a sufficient reason for the failure to give same, where required in the indictment or information, must be set out in order to identify the transaction, the omission thereof rendering such charge bad on motion to quash or on motion in arrest, p. 183.</p> <p>6. Same.—Intendments.—Doubts.—No intendments are made in aid of a criminal charge; and all doubts are resolved in favor of the accused, p. 184.</p>

<p>1. Appeal and Error.—Briefs.—Supreme Court Rules.—Where appellant has made a good-faith effort to comply with the Supreme Court rules in the preparation of his brief, and has set out substantially the parts- of the record questioned, his errors assigned will be considered, p. 186.</p> <p>2. Contracts.—Frauds, Statute of.-—Real Estate.—Description. —Evidence.—Parol.—Where the description of real estate, in a contract for the sale thereof, is consistent but incomplete, and its completion neither requires the contradiction or alteration of the description given, nor that a new description be introduced, parol evidence may be received to complete the description and identify the property, p. 187.</p> <p>3. Evidence.—Parol.—Contracts.—Application of, to Subject-Matter.—Parol evidence is admissible to apply a contract to its subject-matter, p. 188.</p> <p>4. Same. ■—■ Parol. — Contracts.—Construction.—Frauds, Statute of.—Contracts within the statute of frauds being construed, like other contracts, in the light of their surroundings, parol evidence is admissible to show such surroundings, p. 188.</p> <p>5. Contracts. ■— Sales. — Real Estate-. — Description. — Frauds, Statute of.—The description: “120 acres of land, more or less, owned by Daniel Y. Howard of Dana, Indiana, and located about three miles west of Winamac, Pulaski county, Indiana, in sections seventeen and eighteen, township thirty north of range two west,” in a contract for the sale of real estate, is prima facie sufficient, p. 189.</p> <p>6. Pleading. — Complaint. — Contracts.—Sales.—Real Estate.— Description.—Two Tracts Answering.—Defense.—A complaint for damages for the breach of a contract for the sale of “120 acres, owned by” defendant in certain sections, does not need to allege that defendant had no other land of like area in such sections, such fact being a proper defense, p. 190.</p> <p>7. _ Contracts.—Written.—Consideration.—Frauds, Statute of.— ’Statutes.—Evidence.—Parol.—Under §6630 Burns 1901, §4905 R. S. 1881, the consideration for a written contract need not be stated in the writing, but may be proved by parol, p. 190.</p> <p>8. Evidence. — Parol.—Consideration.-—-Indefinite.—Contracts.-— Written.—-Parol evidence is admissible to clear up an ambiguity in the written statement of the consideration of a written contract, p. 190.</p> <p>9. Contracts.—Implications of Law.—Whether Part of.—What the law implies in a contract is as much a part thereof as if written therein, p. 190.</p> <p>10. Same.—Definiteness.—Exchange of Property.—A contract by which plaintiff agreed to exchange his land at $50 per acre for defendant’s store at an agreed valuation, the defendant paying for such land in “merchandise and fixtures,” sufficiently shows that plaintiff was to pay in cash the excess of the valuation of the store over the price of the land. p. 191.</p> <p>11. Same.—Consideration.—Uncertainty.—Salés of Real Estate. —“More or Less.”—A contract to sell 120 acres “more or less” at $50 per acre does not render the price of such land uncertain, since the number of acres is ascertainable, p. 191.</p> <p>12. Damages. — Liquidated. — Contracts.-—A contract providing that defendant shall exchange his store at a certain valuation for plaintiff’s farm at a certain valuation per acre, plaintiff to pay the difference, and providing that in case of breach $500 should be paid as liquidated damages by the violating party, such sum must be so treated, the actual damage being difficult of computation, and such sum being within the reasonable limits of the probable loss. p. 191.</p> <p>13. Pleading. — Complaint. — Damages. — Liquidated.—Whether Actual Must Be Alleged.—Where the contract sued upon provides for liquidated damages, actual damages need not be alleged. p. 191.</p>

<p>From Clark Circuit Court; C. W. Cook, Special Judge.</p> <p>Prosecution by the State of Indiana against Edward Wurfel. From a judgment of conviction defendant appeals.</p>

From Montgomery Circuit Court; Jere West, Judge. Condemnation proceedings by the Indianapolis & Northwestern Traction Company against the Terre Haute & Logansport Railway Company. From an interlocutory order for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Vigo Circuit Court; James E. Piety, Judge.</p> <p>Prosecution by the State of Indiana against William C. Dorsey. From a judgment for defendant, the State appeals.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Lewis Ford against the Lake Erie & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Railroad Commission of Indiana; Union B. Hunt, Chairman, William J. Wood and Charles V. McAdams, Commissioners.</p> <p>Petition by the Chicago & Erie Railroad Company against the Grand Rapids & Indiana Railway Company and others. From an order of the Appellate Court (38 Ind. App. 657) dismissing an appeal by defendants, defendants petition for a transfer to the Supreme Court.</p>

<p>1. Banks and Banking.—Regulation of, by State.—Common-Law Right.-—Any person had the right, at common law, to engage in any department of the banking business, but such right may be regulated or restrained by the State, p. 221.</p> <p>2. Same. — Regulation. — Police Power.—Constitutional Limitations.—The banking business is subject to inspection and control by the State under the exercise of the police power, subject only to the limitations of the Constitution, p. 222.</p> <p>3. Same. — Regulation. — Legislative Questions.—Constitutional Limitations.—The question of proper and needful regulations of the banking business is primarily for the legislature, whose action is subject to review by the courts only when in violation of the Constitution, p. 222.</p> <p>4. Constitutional Law.—Confiscation of Property.-—Eminent Domain.—Article 1, §21, of the Indiana Constitution, providing that, “no man’s property shall be taken by law without just compensation,” applies only to the taking of specific pieces of private property by the exercise of the power of eminent domain, p. 223.</p> <p>5. Same..—Confiscation of Property.—Police Power.—Article 1, §21, of the Indiana Constitution, providing that “no man’s property shall be taken by law without just compensation” does not apply to the exercise of the police power by which the use of property, once lawful, may be restricted or entirely .forbidden, thus destroying the value of such property, without compensation and without the fault of the owner, p. 223.</p> <p>6. Same.—Special Privileges.—Banks and Banking.—The act of 1905 (Acts 1905, p. 182), regulating the business of banking by persons, partnerships and unincorporated persons, does not grant special privileges in violation of article 1, §23, of the Indiana Constitution, since there appears no manifest intent to discriminate in favor of one class and against another class, such business being open to all on like terms, p. 224.</p> <p>7. Constitutional Law. — Banks. — Special Privileges. — Due Process.-—The banking act of 1905 (Acts 1905, p. 182) requiring that not more than one-third of the capital of unincorporated banks shall be invested in furniture and fixtures, though it may incidentally inflict hardships and loss to some, applies to all persons alike under the same circumstances, and does not deprive any persons of their property without due process of law in violation of the Fourteenth Amendment of the federal Constitution, p. 224.</p> <p>8. Same.—Due Process of Law.—Police Power.—The fourteenth amendment of the Constitution of the United States does not apply to the exercise of the police power by the states, though the exercise of such power may inflict injury upon certain citizens more than others, where its exercise is calculated to promote the general health, morals, peace, education, or general welfare, p. 225.</p> <p>9. Same.—Due Process of Law.—Property.—Implied Obligations Concerning.—The owner of property under our government holds it under the implied obligation that the use of same shall not be injurious to the community, p. 227.</p> <p>10. Same.—Banks and Banking-.—Requiring Cash Capital.—The banking act of 1905 (Acts 1905, p. 182) requiring the owners of unincorporated banks to invest at least $10,000 in the business, not more than one-third of which-may be invested in the banking outfit, the balance to remain in cash, does not violate article 1, §21, of the Constitution, inhibiting confiscation, or article 1, §23, thereof, inhibiting class legislation, or the fourteenth amendment of the federal Constitution guaranteeing due process of law. p. 228.</p> <p>11. Statutes.—Construction.—Banks and Banking.—Capital.— The act of 1905 (Acts 1905, p. 182, §3) requiring that the owners of unincorporated banks shall certify to the Auditor of State that their individual net worth is at least double the amount invested as capital in such banks, does not prohibit such owners from using all of their money in the banking business. p. 228.</p> <p>12. Banks and Banking.—Character of Business.—Regulation. —The banking business being of a gwasi-public nature, the character of governmental supervision is largely a matter of legislative discretion, p. 229.</p> <p>13. Constitutional Law.—Banks and Banking.—Capital Invested.—Liability.—The act of 1905 (Acts 1905, p. 182, §3) requiring owners of unincorporated banks to certify to the Auditor of State that they are worth at least double the amount of capital paid into such banks does not violate article 1, §21, of the Constitution, inhibiting confiscation, or article 1, §23, thereof, inhibiting class legislation, or the fourteenth amendment of the federal Constitution guaranteeing due process of law. p. 229.</p> <p>14. Statutes. — Validity. — Banks and Banking. — Residence of Owners.—The act of 1905 (Acts 1905, p. 182, §3) requiring that at least one partner, in a partnership bank, and the owner of an individual bank, shall be residents of the State, is valid, p. 229.</p> <p>15. Constitutional Law.—Arbitrary Power.—The legislature cannot exercise purely arbitrary power even in the exercise of the police power, but the power exercised cannot be supervised nor declared invalid unless it conflicts with some constitutional guaranty, p. 230.</p>

<p>1. Appeal and Error.—Bill of Exceptions.—Record.—Evidence. —Sufficiency.—Where the evidence has not been made a part of the record on appeal, the Supreme Court cannot pass upon the sufficiency thereof, p. 232.</p> <p>2. Same.—Briefs.—A failure by appellant to present the alleged errors in his brief, is a waiver thereof, p. 232.</p> <p>3. ' New Trial.—Misconduct of Juror.—Decision of Trial Court Thereon. — Appeal and Error. — The trial court’s decision whether a juror gave the prosecuting witness a sign of recognition by a movement of the hand and wink of the eye will not ordinarily be disturbed on appeal, p. 232.</p> <p>4. Same.—Misconduct of Jurors.—Discovery of, before Verdict. —Waiver.—Where defendant discovered the misconduct .of a juror before the jury retired; and he made no complaint thereof until after verdict was rendered, such objection is waived, p. 233.</p> <p>5. Same.—Misconduct of Jurors.—Prejudicial.—Whether a juror motioned at defendant with his closed fist or was sporting with the deputy prosecuting attorney was a question of fact for the trial court; and such conduct, sporting with such attorney, though objectionable, is not reversible, where it is shown that such juror voted favorably to defendant for a long time, and yielded only when thoroughly convinced of defendant’s guilt, no prejudice to defendant’s rights being shown, p. 234.</p> <p>6. Same. — Misconduct of Jurors.—Presumptions.—Evidence.— Absence of.—Where the trial court found against defendant on his allegations of misconduct of jurors, no presumption of injury to defendant’s rights arises; and in the absence of the evidence the Supreme Court will not disturb the verdict and judgment below, p. 236.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Action by Elizabeth Ray against the Indianapolis Street Railway Company. From 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>

<p>1. Appeal and Error.—Several Demurrer.—Single Exception.— Several Assignments.—Where a several demurrer was filed and overruled to a complaint in three paragraphs “to which ruling of the court the defendant excepted,” such exception relates to each paragraph and properly questions the sufficiency of each. Whitesell v. Strickler, post, 602, followed, p. 253.</p> <p>2. Pleading.—Complaint.—Municipal Corporations.—City Engineers.—Special Engineers.—Defense.—A complaint showing that defendant city employed the plaintiff as a special civil engineer for one year at a certain compensation is not bad as showing an attempt by the city to employ an engineer to do the duties of the city engineer, as provided by §3476 Burns 1901, providing for the appointment of a city engineer, the facts of such attempt, if available, being a defense to be specially answered. p. 254.</p> <p>3. Contracts.—Frauds, Statute of.—Municipal Corporations.— Engineers.—A contract providing that the plaintiff should serve defendant city as a special civil engineer for one year at a certain compensation, is not within the statute of frauds as provided by §6229 Burns 1901, cl. 5, §4904 R. S. 1881, such provision having no application to contracts which may or may not be performed within one year. p. 254.</p> <p>4. Same.—Municipal Corporations.—Statutory Procedure.—Ordinances.—Resolutions.—Written.—In the absence of a special statutory method of doing their work, municipal corporations may contract for the performance thereof the same as individuals; and such contracts may be by ordinance or resolution, oral or in writing, p. 255.</p> <p>5. Municipal Corporations.—Special Civil Engineers.—Power to Appoint.—Discretion.—Review of.—The power to employ a special civil engineer is discretionary with a city council, an abuse of which discretion being subject to judicial review, p. 256.</p> <p>6. Pleading.—Complaint.—Municipal Orders.—Actions Upon.— A complaint counting on a city order properly signed by the mayor and attested by the city treasurer states a good cause of action, p. 256.</p> <p>7. Municipal Corporations. — Orders. — Execution. — Under §3504 Burns 1901, §3069 R. S. 1881 the execution of a valid city order requires the signatures of the mayor and city clerk, and the failure of either to sign same renders it invalid, p. 257.</p> <p>8. Municipal Corporations.—Treasurers.—Refusal to Pay.— Orders Not Signed by Mayor.—It is the duty of a city treasurer to refuse to pay a city order not signed by the mayor or city clerk, p. 258.</p> <p>9. Same. — Civil Engineers. — Employment. — Evidence.—Sufficiency.—Public Officers.—Where a special committee of the city council was appointed to contract for the services of a civil en- • gineer and they contracted with plaintiff, who was a county surveyor, at a certain compensation, which employment was reported orally to the council; and plaintiff performed the required services, the council paying the salary agreed upon, but not the additional per cent provided, the plaintiff is entitled to recover such additional per cent. p. 258.</p> <p>10. Appeal and Error.—Judgment.—Complaint.—Paragraphs. —One Insufficient.—A judgment resting upon a complaint in three paragraphs, one of which is insufficient and to which a demurrer was overruled, will be reversed where it does not affirmatively appear that such judgment rests upon the good paragraphs, p. 260.</p>

<p>1. Appeal and Error.—Railroads.—Interlocking Devices.—Statutes.—An appeal from a decision in a suit to revise and review the action of the railroad commission, brought under the act of 1905 (Acts 1905, p. 83, §6, §5405f Burns 1905), if such a suit can be maintained, lies to the Appellate Court and not to the Supreme Court, p. 262.</p> <p>2. Same.—Transfer.—Jurisdiction.—Where an appeal is taken to the Supreme Court and jurisdiction is in the Appellate Court, such appeal will be transferred to the Appellate Court, p. 262.</p>

From Huntington Circuit Court; James C. Branyan, Judge. Action by Ethel Baker against the Wabash River Traction Company and another. From a judgment on a verdict for plaintiff for $800, defendant company appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Clinton Circuit Court; Joseph Claybaugh, Judge.</p> <p>Action by Jacob Ditchey against Charles W. Lee. From a judgment for defendant on his cross-complaint, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Marshall Circuit Court; Harry Bernetha, Judge. Action by the State of Indiana, on the relation of Edward Garn, against the Board of Election Commissioners of Marshall county and others. From a judgment for defendants, plaintiff appeals.

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Suit by the Southern Indiana Express Company against the American Express Company. From a decree for plaintiff, defendant appeals.</p>

<p>From Criminal Court of Marion County (35,084); Fremont Alford, Judge.</p> <p>Prosecution by the State of Indiana against Charles H. Towns. From a judgment of conviction, defendant appeals.</p>

<p>1. Pleading.—Answer.—Facts Provable Under Another Paragraph.—Demurrer.—It is harmless error to sustain a demurrer to a paragraph of answer whose facts are provable under another. p. 320.</p> <p>2. Constitutional Law.—Carriers.—Express Companies.—Refusal to Receive Packages from Others.—The act of 1901 (Acts 1901, p. 149, §§3312b-3312f Burns 1901), requiring express carriers within this State to treat all consignors, including ‘ other express companies, on equal terms, and not to grant unequal privileges to any, is constitutional. Adams Express Co. v. State, 161 Ind. 328, and American Express Co. v. Southern Ind. Express Co., ante, 292, followed. p. 320.</p>

From Adams Circuit Court; Richard K. Erwin, Judge. Petition by Penina Silvers, against which Walter F. MacGinnitie remonstrated. From an order of the circuit court dismissing remonstrant’s appeal from the board of commissioners, remonstrant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Huntington Circuit Court; James C. Branyan, Judge.</p> <p>Prosecution by the State of Indiana against Boston Weston. From a judgment of conviction, he appeals.</p>

<p>1. Negligence.—Bare Licensee.—Trespasser.—Safety of Premises.-—The owner is under no duty to keep his premises safe for a bare licensee or trespasser who enters such premises upon his own initiative and without any enticement, allurement or invitation of such owner, p. 334.</p> <p>2. Pleading.— Complaint.— Farm Crossings.—Invitation.—A complaint showing that defendant railroad company built approaches to its track apparently for a farm crossing and planked between its tracks, coupled with the fact that the farmer owning lands on both sides thereof, and his tenants, have been using such crossing, sufficiently shows an invitation for such farmer and his tenants to use same. p. 335.</p> <p>3. Negligence.—Licensee.—Invitation.—Safety of Premises.— The owner of premises is under a duty to exercise care for the safety and protection of a licensee who enters such owner’s premises by reason of an enticement, allurement or inducement, mere acquiescence in the entry thereof being insufficient to place the owner under such duty. p. 335.</p> <p>4. Easements.—-Private Ways. — Negligence.—Care Required from Owner.—The owner of a private way, built in such manner as to constitute a g'Masi-dedication, or an invitation, to certain persons to use same, is liable for any injury to such persons caused by his failure to use ordinary care therein, pp. 337, 338.</p> <p>5. Words and Phrases.—“Invitation.”—Inferences of.—Private Ways.—Use of.—“Invitation,” as used in referring to a license to enter the premises of another, imports not only an actual bidding but also an allurement or enticement; and an invitation to use a way may be implied from the manner of constructing same and the continued use thereof by plaintiff, p. 337.</p> <p>6. Pleading.—Complaint.—Railroads.—Farm Crossings.—Negligence.-—A complaint by the tenant of a landlord owning lands on each side of a railroad right of way, showing that the railroad company had built a private wagon road crossing over its tracks and had planked between the rails; that plaintiff had used such wagon road since its construction and that defendant negligently placed a.hand-car in such road near such crossing, at which plaintiff’s team became frightened, causing it to run away and to injure plaintiff, states a cause of action, p. 338.</p> <p>7. Same.—Complaint.—Railroads.—Hand-Cars.—Placing in Private Way.—Frightening Horses.—Ordinary Gentleness.—A complaint showing that defendant railroad company carelessly and negligently placed its hand-ear lengthwise upon plaintiff’s farm crossing and carelessly and negligently obstructed the free use of same, and that plaintiff was injured as a direct result thereof by his team’s fright thereat, is sufficient, on demurrer, without a direct allegation that his team was ordinarily gentle, pp. 339, 342.</p> <p>8. Same.—Negligence.—Motion to Make More Specific.—A mo- • tion to make more specific and not a demurrer is the proper remedy where a complaint makes a general allegation of defendant’s negligence and resulting injury to plaintiff, p. 340.</p> <p>9. Negligence.—Proximate Cause.—Pleading.—It is not necessary that the proximate cause of an injury should be shown to be one that always or even ordinarily produces the alleged injury; but it is sufficient if it was reasonably to be apprehended that such injury might occur to one while exercising his legal rights, p. 340.</p> <p>10. Evidence.—Judicial Notice.—Pleading.—Courts judicially know that horses sometimes take fright at unusual objects, p. 341.</p> <p>11. Negligence.—Placing HandrGar in Railroad Crossing Way. —Question for Jury.—Whether a railroad company was guilty of negligence in placing a hand-car in a farm crossing way is a mixed question of law and fact and a proper question for the jury. p. 341.</p> <p>12. Pleading.—Obstruction to Highway.—Character of.—It is not necessary either to allege or prove that an obstruction to a street or highway was calculated to frighten horses, such question being for the jury, to be determined from all the facts and circumstances, p. 341.</p> <p>13. Negligence.—Railroads.—Placing Hand-Car in Way.— Frightening High-Spirited Horses.—A railroad company may be liable for injuries caused by the fright of plaintiff’s high-spirited horses at a hand-car, negligently placed by it upon a farm crossing way and calculated to frighten ordinarily gentle horses, p. 342.</p> <p>14. Same. — Contributory. — Defense. — Driving High-Spirited Horses.—Courts cannot assume that plaintiff was guilty of contributory negligence in driving a high-spirited team, such question being a matter of defense (§359a Burns 1901, Acts 1899, p. 58). p. 342.</p> <p>15. Pleading.—Complaint.—Railroads.—-Negligence.—Proximate Cause.—Frightening Horses.—A complaint showing that a railroad company’s negligence in the placing of a hand-car in a way was so far an efficient cause of the running away of plaintiff’s team, that, but for such negligence, it would not so have run, is sufficient on demurrer, p. 342.</p> <p>16. Railroads.—Negligence.—Placing Hand-Car in Way.-—A railroad company is liable for injuries caused by its negligence in placing a hand-car, calculated to frighten ordinarily gentle horses, at the side of a farm crossing way. p. 343.</p> <p>17. Municipal Corporations.—Streets.—Obstructions Near.— Municipal corporations may be liable for negligence in placing within the margin of its streets objects calculated to frighten ordinarily gentle horses, p. 344.</p> <p>18. Trial.—Evidence.—Variance.—Amendments.—Appeal and Error.—Where the complaint shows that defendant railroad company negligently placed its hand-car in plaintiff’s farm crossing way, thereby frightening his horses and causing him injury; and the proof shows that the hand-car was placed by the side of such way, the variance is technical, and the complaint will be treated as amended so as to cover such proof, p. 344.</p>

<p>1. Criminal Law.-—Indictment.—Bill of Particulars.—Defendant, Auditor of State, indicted for embezzlement of money received and appropriated to his own use, is not entitled to a bill of particulars thereof showing from whom and on what account the different items were received, p. 348.</p> <p>therein being subject to review on appeal only for abuse, p. 350. 2. Same.—Bill of Particulars.—Right to.—Appeal and Error.— Courts have the inherent right to compel the state in a criminal prosecution to furnish the defendant with a bill of particulars, where it is apparent from the peculiar nature of the facts that j’ustiee and fair dealing require it, the trial court’s discretion</p> <p>3. Same.—Indictment.—Bill of Particulars.—Motion to Quash.— An indictment in this State so uncertain as to require the trial judge to grant an order to furnish defendant a bill of particulars is subject to a motion to quash, p. 350.</p> <p>4. Same.—Public Officers.—Embezzlement.—Bill of Particulars. —A public officer charged with the embezzlement' of public funds is not entitled to a bill of particulars showing the items of such embezzled funds, since he knows thereof better than the State, p. 351.</p> <p>5. Embezzlement.—Evidence.—Officers.—Money.—From Whom Received.—On an indictment of the Auditor of State for embezzlement the State is not required to prove the source from which the embezzled money was received nor the fund to which it belonged, proof of its receipt, the trust and the conversion of at least a part thereof, being sufficient, p. 351.</p> <p>6. Appeal and Error.—Briefs.—Indictment.—Where appellant fails to point out, in his brief or oral argument, any specific defect in an indictment, and the court fails to detect any, such indictment will be held good. p. 352.</p> <p>7. Statutes.—Construction.—Criminal Law.—Without the Letter, Within the Spirit.—An act not within the words of a criminal statute cannot be adjudged a crime because it is within the reason or spirit of such statute; and all doubts are resolved in favor of the accused, p. 354.</p> <p>8. Same.—To Whom Applicable.—Embezzlement.—Burden of Proof.-—-The burden to prove beyond a reasonable doubt that defendant, Auditor of State, is within the statute defining embezzlement, is upon the State, p. 356.</p> <p>9. Officers.—Constitutional.—Auditor of State.—Duties.—The Auditor of State is a constitutional officer whose duties must be prescribed by statute, p. 357.</p> <p>10. Same.—Auditor of State.—Duties.—Notice.—Insurance Fees. —Principal and Agent.—The statutes of .the State are conclusive notice to all of the duties of the Auditor of State; and insurance companies paying fees to him under §8477 Burns 1901, Acts 1891, p. 199, §67, simply constitute him their agent to pay same to the State, p. 357.</p> <p>11. Same.—Auditor of State.—Treasurer of State.—Duties.— Insurance.—Payments to Wrong Officer.—Under §8477 Burns 1901, Acts 1891, p. 199, §67, regulating the business, transacted within this State, of foreign insurance companies, it is the duty of such companies to pay the prescribed fees to the Treasurer of State, a payment to the Auditor of State being a mere private unofficial transaction, p. 358.</p> <p>12. Same.—Auditor of State.—Directing Collection of Money Due State.-—Section 7634 Burns 1901, §5611 R. S. 1881, requiring the Auditor of State to “direct and superintend the collection of all the moneys due the State” does not authorize him to collect on behalf of the State the insurance taxes due from foreign insurance companies, p. 359.</p> <p>13. Embezzlement.—Essentials.—Auditor of State.—-To convict the Auditor of State of embezzlement the State must show that he converted money belonging to the State, and that such money came into his hands according to law. p. 359.</p> <p>14. Officers.—Auditor of State.—Receipt of Insurance Taxes.— Assumpsit.—-Payment of insurance taxes to the Auditor of State, under §8477 Burns 1901, Acts 1891, p. 199, §67, does not vest the title to such money in the State until a ratification is made, but such money may be recovered from such officer in an action for money had and received, p. 359.</p> <p>15. Officers.—Auditor of State.—Receipt of Insurance Taxes.— Ratification.—An action upon the official bond of the Auditor of State for the recovery of insurance taxes received by him, brought subsequently to the alleged conversion, cannot make such prior conversion a crime when it was not one when committed. p. 360.</p> <p>16. Estoppel.—Origin.—Purpose.—Estoppel arises from equitable principles and is designed to aid in dispensing justice, and its purpose is to preserve acquired rights and not to create new ones. p. 361.</p> <p>17. Embezzlement.—Auditor of State.—Receipt of Insurance Taxes.—Official Capacity.—Estoppel.—The Auditor of State, indicted for the embezzlement of insurance taxes received by him while in the discharge of his duties as such auditor, is not estopped from showing that the duty of receiving such taxes was not enjoined upon him by the law. p. 362.</p> <p>18. Trial.—Instructions.—Prejudicial.—Presumptions.—An erroneous instruction applicable to every count in an indictment is presumed to be prejudicial and therefore reversible error, p. 363.</p>

<p>From Superior Court of Marion County (65,622); James M. Leathers, Judge.</p> <p>Action by Ellen M. Cotton against Louis C. Schmoe and another. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Newton Circuit Court; C. W. Hanley, Judge.</p> <p>Action by William Weitcamp against Riener A. Hasper and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Eminent Domain.—Drains.—Public Use.—The condemnation of private property for drainage purposes constitutes a taking for a public use. p. 378.</p> <p>2. Municipal Corporations. — Waters. — Drains.—Statutes.— Construction.—Section 3598 Burns 1901, Acts 1891, p. 304, §1, providing that cities may construct drains as inlets or outlets into or out of any- parts of such cities, when construed liberally as is required by §3603 Burns 1901, Acts 1891, p. 304, §6, gives such cities power to divert a natural watercourse, p. 378.</p> <p>3. Same.—Drains.—Assessments.—Waters.—A city has the power under the act of 1891 (Acts 1891, p. 304, §§3598-3606 Burns 1901) to assess the benefits and damages to property owners for the diversion of a natural watercourse changed for the purposes of the drainage of such city. p. 379.</p> <p>4. Drains.—Statutes.—Repeal.—Saving Clause.—The drainage law of 1891 (Acts 1891, p. 304, §§3598-3606 Burns 1901) was repealed by the act of 1905 (Acts 1905, p. 456, §§5622-5635 Burns 1905), but pending proceedings were not affected thereby because of the saving clause therein (Acts 1905, p. 456, §14, §5635 Burns 1905). Clemans v. Hatch, 168 Ind. —, followed, p. 379.</p> <p>5. Municipal Corporations.—Drains.—Assessments.—Committee.—Members.—Qualifications.—Failure to Object.—Waiver.— The failure of interested property owners to object to the members of a committee to make assessments for the drainage of a city under §3598 Burns 1901, Acts 1891, p. 304, §1, because of disqualification, before such committee made its report to the common council, is a waiver of their right to raise such objection, p. 379.</p> <p>6. Pleading.—Demurrer.—Defective.—Overruling.—Appeal and Error.—Reversible error cannot be predicated upon the overruling of a defective demurrer, p. 381.</p> <p>7. Same.—Demurrer.—Defective.—Sustaining to Bad Answer.— Appeal and Error.—Sustaining a defective demurrer to a bad pleading does not constitute reversible error, p. 381.</p> <p>8. Appeal and Error.—Pleading.—Demurrer.—Right Result.—' Where the trial court in its rulings on the pleadings reaches a right result, the judgment will not be disturbed, p. 381.</p>

<p>From Marion Circuit Court (13,749); Robert W. McBride, Special Judge.</p> <p>Election contest by William J. Wallace against Warren E. Tinkle. From a judgment for the contestor, contestee appeals.</p>

From Wabash Circuit Court; A. H. Plummer, Judge. Application by George B. Jones for license to sell intoxicating liquors, against which Jacob Alexander and others remonstrate. From a judgment for remonstrants, the applicant appeals.

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Application by George B. Lanham, against which William J. Woods and others remonstrate. From a judgment for remonstrants, the applicant appeals.</p>

<p>1. Appeal and Error.—Complaint.—Initial Attack on Appeal.— Evidence.—Verdict.—A complaint, attacked for the first time on appeal, is sufficient if it will bar another action for the same cause, mere defects therein being cured by the evidence and verdict, p. 405.</p> <p>2. Street Railroads.—Use of Streets.—Rights of Others.— . Street railroad companies have no superior rights in .the use of the streets occupied by their tracks, but they have the right not to be unnecessarily -interfered with or obstructed in the running of their cars. p. 407.</p> <p>3. Municipal Corporations.—Streets.—Rights of Users.—Street Railroads.—All users of the public streets of a city have equal rights to the use of all parts thereof, subject to the condition that the use made shall not unnecessarily interfere with similar rights of others in such use. p. 407.</p> <p>4. Negligence.—Street Railroads.—Tracks.—Use of, by Pedestrians.—In determining the questions of due care and contributory negligence of a pedestrian using a street car track as a footway, all of the circumstances are to be considered, p. 408.</p> <p>5. Street Railroads.—Tracks.—Pedestrians Using.—Rights.— Street railroad companies cannot lawfully exclude pedestrians* from their tracks, but it is the duty of such pedestrians when they ascertain or are notified of the approach of a car temporarily to abandon the track to let the car pass. p. 408.</p> <p>6. Same.—Running Down Pedestrians.—Presumptions.—A pedestrian, walking along a street car track, has the right to presume that cars will not be run at an excessive speed, and that a car, approaching from the rear, will not be run over her without warning- p. 408.</p> <p>7. Same.—Negligence.—Failure to Observe.—It is the duty of the motorman operating a street car to use ordinary care for the safety of persons or vehicles upon the track, but such' care implies a high degree of watchfulness and vigilance when the car is running at a rapid speed in a populous part of a city, p. 409.</p> <p>8. Same.—Running Down Pedestrian.—Contributory Negligence. —A lady walking between the street car tracks, who looked for a car before she entered upon the track, and again after traveling half a square, the track being clear of ice and snow, and the sidewalk and rest of the street being covered therewith, and who was run over by a car approaching without warning from the rear, is not guilty of contributory negligence as a matter of law. p. 409.</p> <p>9. Judgment.—Ver diet.—General.—Special.—When Controls.— The answers to the interrogatories to the jury control the general verdict only where the antagonism between them is so great that no evidence admissible under the issues could har- " monize them. p. 409.</p> <p>10. Negligence.—Proximate Cause.—Contributory Negligence.— To deny a recovery of damages negligently caused, on the ground of contributory negligence, it must appear that such contributory negligence proximately, actively and contemporaneously contributed to such injury, p. 410.</p> <p>11. Street Railroads.—Running Down Pedestrian.—Proximate Cause.—Contributory Negligence.—Where a woman looked for an approaching car and saw none before going upon a street car track, and after walking half a square looked back for a car and saw none, her continuing to walk on such track without looking back is not a proximate, but a remote, cause of an injury occasioned by the motorman’s running his approaching car, without warning, against her. p. 410.</p> <p>12. Negligence.—Contributory.—Last Clear Chance.—Where defendant knows or should know of plaintiff’s negligence in time to avoid any injury therefrom, his failure so to avoid injury to the plaintiff becomes the proximate and efficient cause of such injury, p. 411.</p> <p>13. Same.—Street Railroads.—Person on Track.—Knowledge of. —A street railroad company is chargeable with knowledge of a woman’s presence on the track, where the motorman had an unobstructed vision of her for 1,000 feet. p. 412.</p> <p>14. Evidence.—Opinions.—The opinion of a witness upon facts and conditions which can be fully placed before the jury is not admissible in evidence, p. 412.</p> <p>15. Same.—Exclusion.—Harmless Error.—Interrogatories to Jury.—Answers to the interrogatories to the jury showing certain facts in favor of defendant render harmless any error in excluding evidence tending to show such facts, p. 413.</p> <p>16. Appeal and Error. — Briefs. — Instructions. — Instructions questioned but not set out in the briefs cannot be considered on appeal, p. 413.</p> <p>17. Same.—Erroneous Instructions.—Procured by Appellant.— Defendant may not complain of erroneous instructions given at its request, p. 413. .</p> <p>18. Damages.—Doctors’ Bills.—Street Railroads.—Husband and Wife.—The wife may recover doctor’s bills, contracted to be paid for by herself, as part of the damages caused by negligent injuries inflicted upon her by a street railroad company, p. 414.</p> <p>19. Appeal and Error.—Weighing Evidence.—The Supreme Court will not disturb a verdict where the evidence was conflicting. p. 415.</p>

<p>From Madison Circuit Court; H. J. Paulus, Special Judge.</p> <p>Prosecution by the State of Indiana against Llewellyn H. Vinnedge. From a judgment of conviction, defendant appeals.</p>

<p>From Criminal Court of Marion County (34,797); Wilborn Wilson, Special Judge.</p> <p>Prosecution by the State of Indiana against Michael Juliana. From a judgment of conviction, defendant appeals.</p>

<p>Appeal and Error.—Answer.—Sustaining Demurrer to Paragraph.—Facts Provable Under Another.—It is harmless error to sustain a demurrer to a paragraph of answer whose facts are provable under another paragraph.</p>

<p>From Huntington Circuit Court; J. Fred. France, Special Judge.</p> <p>Action by the Knudson-Mercer Company against Albert G. Johnson and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>From Pike Circuit Court; E. A. Ely, Judge.</p> <p>Application by John E. Kunkle, against which Theodore Abell and others remonstrate. From a judgment for remonstrators, the applicant appeals.</p>

<p>From Dekalb Circuit Court; C. W. Watkins, Special Judge.</p> <p>Action by John Wimer against James E. Pomeroy and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

<p>1. Railroads.—Setting Fires.—Spark-Arresters.—Railroad companies must not only use the best and most approved sparkarresters, but they must keep them in good condition while in use. p. 457.</p> <p>2. Trial.—Interrogatories to Jury.—Answers of Want of Knowledge.—Legal Effect.—Interrogatories to the jury answered “we cannot state” and “we do not know” are of no legal effect, except that they are not a finding that there was no evidence on the questions involved therein, p. 457.</p> <p>3. Trial.—Interrogatories to Jury.—Failure to Answer.—Rights of Parties.—Where a jury failed to answer interrogatories directly, it is the duty of the court, on motion, to require them to answer definitely, p. 457.</p> <p>4. Same.—Interrogatories to Jury.—Answer of “No Evidence.” —Effect.—An answer of “no evidence” to an interrogatory to the jury, is a finding that the facts involved in such interroga- ' tory are not proved; and the court’s duty is to consider such failure in determining whether the general verdict can stand in the absence of such proof, p. 457.</p> <p>5. Same.—Interrogatories to Jury.—Railroads.—Setting Fires.— Spark-Arresters. — Care. — Where the interrogatories to the jury, in an action against a railroad company for negligently setting fires by reason of using a faulty spark-arrester, and in overtaxing its engine, failed to show a thorough inspection of the spark-arrester before starting and also failed to negative negligence in the management of the locomotive, and there was no finding as to the condition of the spark-arrester at the time of the setting of the fire, the general verdict for plaintiff must prevail, p. 458.</p> <p>6. Same. — Verdict.—General.—Special.—Which Prevails.—The general verdict prevails unless the answers to the interrogatories to the jury are in such conflict therewith that no supposable evidence under the issues will remove same. p. 458.</p> <p>7. Appeal and Error.—Briefs.—References to Transcript.— Where complaint is made of the introduction of alleged incompetent evidence, but the brief does not indicate the place in the transcript where it is found, the Supreme Court may refuse to consider such alleged error, p. 458.</p> <p>8. Evidence.—Flying of Burning Sparks.—Distance.—Evidence of the distance which flying sparks were carried from a a burning barn is admissible as a part of the res gestae in an action against a railroad company for negligently setting fire to such barn, thereby setting on fire a house and storeroom, though the direction of the wind was not shown to have been the same as when the sparks left the engine, p. 458.</p> <p>9. Railroads.—Spark-Arresters.—Inspection.-—Care Required.— Railroad companies cannot be held guiltless of negligence as to their care in using an unsafe spark-arrester merely from the fact that they had employed a competent inspector; but they must show that the inspection was a reasonably careful one. p. 459.</p> <p>10. Appeal and Error.—New Trial.—Instructions.—Joint Assignment.—Where three instructions are jointly assigned as a reason for a new trial, error cannot on appeal be predicated upon one of them only. p. 460.</p> <p>11. Appeal and Error.-—New Trial.—Evidence.—Sufficiency.— How Considered.—In passing upon the sufficiency of the evidence on appeal only the theory most favorable to the successful party will be considered, p. 460.</p> <p>12. New Trial.—Evidence.—Railroads.—Setting Fires.—Where the evidence, in an action against a railroad company for negligently setting fires, showed that an engine was drawing thirty-two cars, mostly loaded, up a grade of from forty to fifty feet per mile, and sparks of the size- of a dime were thrown 100 feet and that a barn was set on fire, thereby setting on fire plaintiff’s house and storeroom, negligence is sufficiently shown, p. 460.</p> <p>13. Evidence. — W eighing of. — Circumstantial. — Railroads. — Setting Fires.—A railroad company may be held negligent in setting fires, though its inspector, experts and servants all testify that its spark-arrester was of the most approved pattern, properly inspected and in good condition, where other evidence shows that the locomotive emitted sparks the size of a dime, throwing them a distance of 100 feet, thus causing damage to plaintiff, the weight of such circumstantial evidence being for the jury. p. 461.</p>

<p>From Clinton Circuit Court; Samuel R. Artman, Special Judge.</p> <p>Petition by George M. Good and others, against which Samuel W. Burk defends. From a judgment for defendant, petitioners appeal.</p>

From Henry Circuit Court; John M. Morris, Judge. Action by Emma Lincoln, as administratrix of the estate of William M. Lincoln, deceased, against the City of Richmond. From a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Lagrange Circuit Court; R. S. Robertson, Special Judge. Suit by Sidney K. Ganiard, as trustee of Rollin Ellison, a bankrupt, against Alice H. Ellison and others. From a decree for plaintiff, defendants appeal. Transferred from the Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Torts.—Contracts.—Breach.—Action.—A person engaged in a private enterprise whose only relationship with plaintiff grows out of a contract, may be liable injtort for damage committed in the execution of the work of carrying out such contract. p. 498.</p> <p>2. Same.—Contracts.—Breach of Duties under.—The breach of a contractual duty to use care in reference to another’s property constitutes a tort the same as the breach of a legally imposed duty apart from contract, -p. 498.-</p> <p>3. Same. — Negligence.—Contracts.—Due Care.—Action.—Case. —Assumpsit.—Where through contractual relations defendant enters upon a work attended with risk to the person or property of the plaintiff, a failure by defendant to exercise ordinary care therein entitles the plaintiff to an action on the case or in assumpsit at his election, p. 498.</p> <p>4. Torts.—Negligence.—Contracts.—Action.—A breach of a contract, unattended by any negligence, does not give rise to an action in tort. p. 498.</p> <p>5. Same. ■—■ Negligence. — Contracts.—Breach.—Action.—Recovery.—Election.—-Plaintiff may elect to sue in tort or on contract for a negligent breach of contract, but he cannot have two compensations for the same loss. p. 499.</p> <p>6. Same.—Assumpsit.—Origin of.—The action of assumpsit historically developed from the enforcement of liability in tort. p. 499.</p> <p>7. Negligence.—Due Care.—Where damage results to plaintiff by reason of defendant’s failure to exercise due care in any situation, an action in tort for the recovery of such damage lies on behalf of plaintiff, p. 499.</p> <p>8. Same.—Erecting Windmill.—Dangerous Character.—Notice. —Defendant company, which contracts to erect a windmill on plaintiff’s barn, is liable for injuries caused by its failure to use ordinary care in fastening such windmill firmly, thus causing it to fall on plaintiff’s barn to his damage, the defendant being chargeable with notice of the danger resulting from its negligence, p. 500.</p> <p>9. Same.—Erecting Windmill.—Duty of Plaintiff to Examine.— Contracts.—Where plaintiff sustained damages because of defendant company’s negligence in performing its contract safely and securely to erect a windmill on plaintiff’s barn, plaintiff was under no duty, as to defendant, to inspect such windmill to determine its safety, p. 501.</p> <p>10. Same.—Proximate Cause.—Intervening Agent.—-Where the proximate result of defendant’s negligence is damage to the plaintiff, the defendant is liable provided the line of causation is not broken by some intervening responsible agent, p. 501.</p> <p>11. Same.—Selling Dangerous Articles.—Liability.—Intervening Agent.—One who knowingly sells an article intrinsically dangerous to person or property, concealing the fact of its dangerous character, is liable to any person, who, without the fault of himself or other person sufficient to break the line of causation, is injured thereby, p. 501.</p> <p>12. Pleading. — Complaint. — Negligence. — Erection of Windmill.—A complaint showing that defendant negligently failed securely to fasten the windmill, which defendant had contracted to erect, to the tower of plaintiff’s barn, thereby causing damage to plaintiff, need not show that the supports to such mill were defective, p. 502.</p> <p>13. Negligence.—Contributory.—Erection of Windmill.—Failure to Inspect.—Contracts.—The plaintiff is not guilty of contributory negligence for failing to inspect a windmill which defendant had contracted to erect in a safe and secure manner and which it had negligently erected to plaintiff’s damage, p. 502.</p> <p>14. Pleading.—Complaint.—Torts.—Contracts.—Consideration.— Inducement.—While the averment of the consideration of a contract in a complaint. for misfeasance or malfeasance is an uncontrolling mark of an action ex contractu, still, if the contract is set out merely as a matter of inducement, the complaint may be regarded as in tort for the violation of a common-law duty. p. 502.</p> <p>15. Same. — Code. — Complaint. — Facts. — Torts.—Contracts.— Under code pleading the plaintiff in a case of tort may properly set out the contract with defendant as constituting the underlying facts from which the violated duty springs, instead of alleging the undertaking in general terms, p. 503.</p> <p>16. Same. —• Complaint. — Torts. — Contracts. — Negligence.—A complaint setting out a contract by defendant with plaintiff for the erection of a windmill upon plaintiff’s barn, together with a supplemental agreement concerning same, and then, after making many different allegations of negligence, avers that by reason of such acts of negligence, without any fault upon his part, the plaintiff sustained damage, states a cause of action in tort, and not on contract, p. 503.</p> <p>17. Same.—Complaint.—General Construction.—Pleadings will be construed so as to give effect, if possible, to all of the material allegations, p. 504.</p> <p>18. Same.—Complaint.—Construction by Trial Court.—Appeal and Error.—A complaint whose allegations are such that it is doubtful whether it sounds in tort or in contract and which is tried upon the theory of an ex delicto action, will be so construed on appeal, p. 504.</p> <p>19. Evidence.—Injury to Crops in Barn.—Negligence.—Erection of Windmill.—Damages.—In an action for damages caused by the falling of a windmill negligently erected by defendant upon plaintiff’s barn, evidence of the damage caused to plaintiff’s crops stored in the barn is admissible, p. 504.</p> <p>20. Appeal and Error. — Briefs. — References to Transcript.— Contentions as to the improper rulings of the trial court in admitting evidence may not be considered where the briefs fail to point out the pages and lines of the transcript where the same may be found, p. 504.</p> <p>21. Evidence. — Hypothetical Questions. ■—• Failure to Supply Evidence of Details.—Duty of Adversary.—Where a party propounds an hypothetical question on his agreement later to supply the evidence of the details thereof, and he fails to supply same, it is Ms opponent’s duty, in order to present error thereon, to move to strike out the answers thereto, after the close of such party’s evidence, p. 505.</p> <p>22. Evidence.—Receiving Incompetent, to Prove Established Fact.-—Appeal and Error.—The admission of incompetent evidence to prove a well-established fact in a case does not constitute reversible error, p. 505.</p>

From Elkhart Circuit Court; James S. Dodge, Judge. Suit by the Elkhart County Trust Company, as receiver of the American Mutual Life Insurance Company of Elkhart, Indiana, against William M. Barney and others. From a decree granting a temporary injunction, defendants appeal.

<p>1. Pleading.—Complaint.—Theory.—Municipal Corporations.— Street Assessments.—Bonds.—Whether a suit to enforce the lien of a contractor for street improvements is based upon the assessment made therefor or upon the bonds issued in payment thereof, as provided by §3623f Burns 1901, Acts 1901, p. 534, §6, is immaterial, such bonds being simply an evidence of such indebtedness, p. 510.</p> <p>2. Same.—Motion to Make Specific.—Where doubt exists as to the theory of plaintiff’s complaint, a motion to make more specific is the proper remedy, p. 511.</p> <p>3. Municipal Corporations.—Street Assessments.—Collection. —Council’s Right to Prescribe Method.—An order "of the city council that street assessments shall be collected as taxes are collected, is surplusage, since §3623f Burns 1901, Acts 1901, p. 534, §6, specifically prescribes the method of collection, p. 511.</p> <p>4. Same.—Street Assessments.—How Questioned.—Under §3623d Burns 1901, Acts 1901, p. 534, §4, defects in street assessments can be remedied only by a direct appeal to the circuit court from the order fixing same. p. 512.</p> <p>5. Same.—Street Improvements.—Contracts.—A general order for the improvement of a certain street in accordance with certain specifications is complied with when such street is made to conform to such specifications; and it is not necessary to change any part of such street that already conforms to such specifications, p. 512.</p> <p>6. Same.'—Street Assessments.—How Fixed.—Statutes.—Under §3623c Burns 1901, Acts 1901, p. 534, §3, street assessments are made on the theory of special benefits received; and it is not unlawful to assess the cost of improving the east side of a street to frontagers upon such side, if they alone received special benefits therefrom, p. 513.</p> <p>7. Same.—Street Assessments.—Collection of.—Attorneys’ Fees. —Constitutional Law.—Section 3623f Burns 1901, Acts 1901, p. 534, §6, providing for the recovery of attorneys’ fees in cases of foreclosure of street improvement liens, is constitutional, p. 514.</p> <p>8. Municipal Corporations.—Street Improvements.—Contracts. —Notice.—Where a city council adopted a resolution that it would receive bids for a street improvement “up to 6 o’clock, October 30,” and ordered its clerk to publish notice of the letting “for three weeks before October 6,” and the clerk published a notice for three successive weeks, that bids would be received up to “5 o’clock, October 30,” the first of which was published on October 1, and the last, on October 22, such notice is a sufficient compliance with the statute (§3623a Burns 1901). p. 514.</p> <p>9. Appeal and Error.—Briefs.—Striking from Files.—Unprofessional Language.—Briefs containing unprofessional language will be stricken from the files, p. 515.</p>

<p>1. Pleading.—Complaint.-—Municipal Corporations.—Streets — How Alleged.—A complaint showing that within the limits of defendant city there existed certain streets, among which was Martindale avenue, sufficiently shows that such avenue was a street within such city. p. 521.</p> <p>2. Same.—Complaint.—Facts.—Duty Arising.—Municipal Corporations.—Streets.—Negligence.—A complaint showing that plaintiff's injury was received because of a defect existing in a street in defendant city, is sufficient without any allegations showing defendant’s duty with reference to such defect, such duty being a legal inference necessarily deducible from the. facts, without any allegation thereof, p. 521.</p> <p>3. Same. — Complaint.—Municipal Corporations.—Streets.—Defects. — Notice. — Contributory Negligence. — A complaint against a city for negligence in maintaining a defective street, showing that plaintiff had no notice of the defect, that the accident happened in the dark and that plaintiff was without fault or negligence on his part, does not show contributory negligence, p. 521.</p> <p>4. Same. — Complaint. — Negligence.—Contributory.—Allegation of Freedom from.—An allegation in a complaint for damages for negligence, that plaintiff was without fault, is sufficient to negative negligence on plaintiff’s part unless the other facts pleaded affirmatively show contributory negligence, p. 521.</p> <p>5. Same.—Complaint.—Paragraphs of.—When not Considered. —Interrogatories to Jury.—Where the answers to the interrogatories to the j'ury affirmatively show that the case was decided on the first paragraph of the complaint, the other paragraphs will not be considered on appeal, p. 522.</p> <p>6. Municipal Corporations. — Defective Streets. —Notice.— Choice of Ways.—Where plaintiff received inj'uries by reason of a defective street, of which he had no notice, the fact that safe ways might have been taken by plaintiff is immaterial, p. 523.</p> <p>7. Trial.—Interrogatories to Jury.—Evidence to Overthrow.— Failure of Appellant to Point Out.—Appeal and Error.—Where appellant complains that an answer to an interrogatory to the j'ury was incorrect, but fails to point out . the evidence overthrowing same in his brief, the Supreme Court need not consider same. p. 523.</p> <p>8. Trial.—Interrogatories to Jury.—Failure to Require Answer. —Harmless Error.—The failure of the court to require the jury to answer more definitely an interrogatory does not constitute reversible error, where the answer would not, in any event, be of a controlling nature, p. 523.</p> <p>9. Same.—Burden of Proof.—Contributory Negligence.—Want of Ordinary Care.—Municipal Corporations.—The burden- of proving contributory negligence and that plaintiff did not use care in proportion to the known danger in using a defective street, is upon the defendant city. p. 523.</p> <p>10. Same.—Instructions.—Contributory Negligence.—Evidence. —Consideration of.—The refusal to give an instruction, in an action for damages for negligence, that the burden of proving contributory negligence is on the defendant, but that the jury may consider the plaintiff's evidence in determining such issue, is reversible error, where no other instruction covers such ground, p. 524.</p> <p>11. Evidence.—Res Ipsa Loquitur.—Municipal Corporations.— Defective Streets.—The doctrine of res ipsa loquitur does not apply to injuries caused by defective streets, p. 525.</p> <p>12. Same.—Presumptions.—Exercise of Due Care.—There is no presumption in this State that the plaintiff, in a personal injury ease, used due care. p. 525.</p> <p>13. Trial. — Negligence. — Contributory.—Issues.—Where contributory negligence is relied upon, in a personal injury case, the parties virtually charge each other with negligence in respect to the transaction in question, and the burden is upon each to prove the negligence of the other, p. 525.</p> <p>14. Same. — Negligence. — Contributory.—Evidence.—Presumptions.—Negligence and contributory negligence are questions to be determined by the jury from the proved facts in a ease, unaided by presumptions of law. p. 526.</p> <p>15. Same.—Negligence.—Burden of Proof.—Prior to the act of 1899 (Acts 1899, p. 58, §359a Burns 1901) the burden was upon plaintiff, in a personal injury .case, to prove defendant's negligence and his own exercise of due care. p. 526.</p> <p>16. Same.—Negligence.—Want of Due Care.—Presumptions.— Under the rule prior to the act of 1899 (Acts 1899, p. 58, §359a Burns 1901) a failure, by the plaintiff in a personal injury case, to prove the exercise of due care, was fatal, since there was no presumption that he had exercised such care. p. 526.</p> <p>17. Evidence.—Negligence.—Burden of Proof.-—Effect of Statutory Change of Rule.—The effect of the act of 1899 (Acts 1899, p. 58, §359a Burns 1901) was to relieve the plaintiff, in a personal injury case, from proving the exercise of due care, p. 526.</p> <p>18. Same.—Burden of Proof.—-Contributory Negligence.—The defendant, in a personal injury case, to defeat plaintiff, must establish by a fair preponderance of the evidence the contributory negligence of plaintiff, p. 526.</p> <p>19. Same. — Presumptions. — Nature of. — Presumptions of law are inferences warranted by the experiences of the courts in administering justice, some of them being conclusive of a given proposition and some being only prima facie evidence thereof, p. 527.</p> <p>20. Same. — Presumptions. — Inferences.—Presumptions of fact are inferences of fact drawn by the experienced mind from the existence of other facts proved in a case, and such inferences or presumptions are questions for the jury. p. 527.</p> <p>21. Appeal and Error.—Reversal.—Errors.—Where a judgment is reversed, the Supreme Court will not decide alleged errors not likely to arise again, p. 528.</p>

<p>From Hamilton Circuit Court; Samuel R. Artman, Special Judge.</p> <p>Action by George W. Jackson against Joseph R. Morgan and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1337u. Burns 1901, Acts 1901, p. 590.</p>

From Wabash Circuit Court; A. H. Plummer, Judge. Action by Milbert F. Price and others against James Huddleston. From a judgment for defendant, plaintiffs appeal. (For opinion overruling motion to dismiss appeal, see 36 Ind. App. 150.) Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Superior Court of Allen County; Owen N. Heaton, Judge. Action by James Stewart against the Farmers Mutual Fire Insurance Association and others. From a judgment for plaintiff, defendant association and another appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Johnson Circuit Court; Vinson Carter, Special Judge. Claim for services by Grafton Johnson, as the receiver of the property of James T. Polk, against which James T. Polk excepts. From an allowance of $9,500, the exceptor appeals. Appealed from Appellate Court under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>From Lawrence Circuit Court; William H. Martin, Judge.</p> <p>Action by the State of Indiana, on the relation of William L. Taylor, as Attorney-General, against James Donaldson and others. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Intoxicating Liquors.—Illegal Sales.—Statutes.—The person selling, without a license, intoxicating liquors in quantities of a quart or more at a time under the act of 1875 (Acts 1875 [s. s.], p. 55), as amended by the act of 1897 (Acts 1897, p. 253), could be prosecuted only under §2186 Burns 1901, §2090 R. S. 1881, making it punishable to do business without a license, where a license is required, p. 562.</p> <p>2. Same.—Sales to Consumers.—Statutes.—The purpose of the liquor license law of 1875 (Acts 1875 [s. s.], p. 55) was to regulate the sales of liquors to consumers, and not to regulate sales by wholesalers to retailers or jobbers.' p. 563.</p> <p>3. Statutes. — Amendatory. — Subject-Matter.—Constitutional Law.—The provisions of an amendatory statute must, to be valid, be germane to the amended statute, p. 563.</p> <p>4. Constitutional Law.—Intoxicating Liquors.—Licenses.—The act of 1897 (Acts 1897, p. 253), amending certain sections of the act of 1875 (Acts 1875 [s. s.], p. 55), and making it unlawful to retail in quantities of less than five gallons at a time, and exempting wholesalers who sell in quantities of five gallons or more at a time, is not unconstitutional as class legislation, p. 564.</p> <p>5. Statutes.—Amendatory.—Effect of, on Subsequent Conduct. —With reference to subsequent conduct, an amendatory statute must be considered as a part of the original act at the time of the original enactment, p. 564.</p> <p>6. Intoxicating Liquors.—Wholesalers.—License.—Statutes.— The act of 1875 (Acts 1875 [s. s.], p. 55), as amended by the act of 1897 (Acts 1897, p. 253), has no application to wholesalers who sell to retailers, jobbers or consumers in quantities of five gallons or more at a time. p. 564.</p> <p>7. Same.—License Law of 1875.—To Whom Applicable.—The act of 1875 (Acts 1875 [s. s.], p. 55), providing that all persons desiring to retail liquors, to be used as a beverage, in quantities of less than a quart at a time, should secure a license therefor, applied only to retailers who sold to consumers, p. 564.</p> <p>8. Words and Phrases.—“As.”—Statutes.—Intoxicating Liquors.—The word “as” in the phrase “engaged in business as a wholesale dealer,” as used in §7283 Burns 1901, Acts 1897, p. 253, §3, is used in the sense of “like” or as illustrating the kind of wholesalers referred to. p. 566.</p> <p>9. Words and Phrases. — “Who does not sell.”—Intoxicating Liquors.—Statutes.—The clause “who does not sell,” as used in §7283 Burns 1901, Acts 1897, p. 253, §3, merely defines the character of the wholesalers who are exempt from procuring a license to sell intoxicating liquors, p. 566.</p> <p>10. Same.—“Wholesale Dealer.”—Intoxicating Liquors.—Statutes.—Reference to Prior Statutes.—In determining the meaning of the words “wholesale dealer,” as used in §7283 Burns 1901, Acts 1897, p. 253, §3, the court, as an aid, will look to the use of such words in the United States statutes (20 Stat., pp. 333, 334). p. 566.</p> <p>11. Intoxicating Liquors.—Sales of Five Gallons.—Delivery of Part.—A sale of five gallons of intoxicating liquors, a part only of which is delivered at the time, or removed from the premises, is unlawful, unless the seller has a retailer’s license, p. 568.</p> <p>12. Same.—Sales.—Use of, on Premises of Seller.—Sales by an unlicensed vendor of intoxicating liquors, in any quantity, to be used on premises under the vendor’s control, are unlawful as in violation of §7285 Burns 1901, §5320 R. S. 1881. p. 569.</p>

From Fulton Circuit Court; Harry Bernetha, Judge. Action by William J. Hayes and others against Ellen W. Shirk, as executrix of the will of Milton Shirk, deceased. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Municipal Corporations.—Sidewalks.—Riding Bicycles on. —Criminal Law.—Riding a bicycle on a city sidewalk composed of stone, brick, plank or gravel is, by §4398 Burns 1901, §3361 R. S. 1881, a misdemeanor, p. 584.</p> <p>2. Same.—Ordinances.—State Laws.—Which Govern.—An act punishable by a state law cannot be made punishable by a city ordinance, p. 584.</p> <p>3. Pleading. — Complaint. — Negligence. — Riding Bicycle on Sidewalk.—Ordinances.—Presumptions.—An allegation that a bicycle rider was riding on a sidewalk pursuant to an ordinance means that he was riding agreeably to such ordinance, and consequently that, in fact, he knew the provisions thereof, p. 584.</p> <p>4. Maxims.—Ignorance of Law.—Action.—The maxim “ignorantia juris non excusat” is perverted by an assumption that all persons know the law. p. 585.</p> <p>5. Municipal Corporations.—Ordinances.—Sidewalks.—Riding Bicycles on.—Knowledge of Law.—Where a bicycle rider knew it was a violation of the State law to ride a bicycle on a certain sidewalk in a city, an ordinance granting him the right to ride on such sidewalk did not even give him a colorable right so to ride. p. 585.</p> <p>6. Same.—Ordinances.—General Language.—Restraints on.—A city ordinance permitting bicycle riding generally on its sidewalks will be held to apply only to those sidewalks upon which it is authorized by the State laws to permit bicycle riding, p. 585.</p> <p>7. Same.—Ordinances.—Prohibiting Bicycle Riding on Certain Sidewalks.—Where a city ordinance prohibits bicycle riding on the sidewalks of a certain territory, the presumption is that such territory contained sidewalks of the kind that the city might lawfully exercise jurisdiction over. p. 585.</p> <p>8. Same.—Enforcement of Laws.—Liability for Failure.—Sidewalks.—Bicycles.—A city is not liable for its failure to enforce the laws, or for an intra vires act done in its legislative capacity; and is therefore not liable to a pedestrian struck by a bicycle rider who is unlawfully using its sidewalk, p. 586.</p>

From Cass Circuit Court; John S. Lairy, Judge. Action by Joseph Mandel against James F. Digan, as administrator of the estate of James O’Donnell, deceased. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Hamilton Circuit Court; Samuel R. Artman, Special Judge.</p> <p>Action by Mary Klentschy against the Indianapolis Traction & Terminal Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Hancock Circuit Court; Daniel L. Wilson, Special Judge. Suit by Elizabeth Strickler against Elmira J. Whitesell and others. From a decree for plaintiff, defendants, except one, appeal. Transferred from Appellate Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>From Superior Court of Marion County (G. T. 65,807); John L. McMaster, Vinson Carter and Vincent G. Clifford (Pro tem.) Judges.</p> <p>Action by William B. Hord against the State of Indiana. From a judgment for defendant, plaintiff appeals.</p>

<p>From Elkhart Circuit Court; James S. Dodge, Judge.</p> <p>Suit by Ellington C. Lamb against Henry Stark and others. From a decree against Henry Stark and wife, they appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.</p>

From Porter Circuit Court; Willis C. McMahan, Judge. Action by Harry McCandish, as administrator of the estate of James Bragg, deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for $3,500, on plaintiff’s remittitur of $2,000 from a verdict for $5,500, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

From Marion Circuit Court (12,977); Henry Clay Allen, Judge. Action by Tillie Krentler, by her next friend, against the Bemis Indianapolis Bag Company. From a judgment on a verdict for plaintiff for $15,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Insurance.—Marine.—Disclosures.—It is the duty of the insured, in a marine policy, to disclose to his insurer all facts within his knowledge which would tend to increase the hazard, and a failure so to do ordinarily avoids such policy, p. 665.</p> <p>2. Same.—Fire.—Disclosures.—It is not the duty of assured, in a fire policy, to make disclosures as to the risk, there being no fraud practiced, since the insurer may examine the property insured and can make and verify inquiries in reference to such risk. p. 666.</p> <p>3. Same.—Policies.—Construction.—Contracts.—Insurance policies which contain inconsistent provisions, or which are so framed as to be fairly open to construction, will be construed so as to sustain, rather than defeat, the insurance, p. 666.</p> <p>4. Same.—Fire Policies.—Void Clauses.—Representations.—In the absence of fraud, a fire policy which provides that it “shall be void if the insured has concealed * * * any material fact; * * * or if the interest of the insured in the property be not truly stated herein,” or “if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple,” is not void, although assured had a life estate only, no representations having been made by assured to the insurer and no questions being asked by such insurer. Anything to the contrary in Geiss v. Franklin Ins. Co., 123 Ind. 172, disapproved. Gillett, J., dissenting, pp. 666, 699, 705.</p> <p>5. Insurance.—Policies.—Construction.—Inequality of Parties. —Insurance policies prepared by experts with a view of safeguarding the insurer at all points, and with the execution and provisions of which the assured had nothing to do, and the import of many of the provisions of which he cannot fully comprehend, should not be construed and enforced as contracts where the parties deal on an equal footing with each other, p. 677.</p> <p>6. Same.—Policies.—Mutuality of Contracts.—The meeting of the minds of the parties, essential to the ordinary contract, is usually wanting in fact as to many of the provisions in insurance policies, the assured’s assent thereto being largely a legal fiction, pp. 677, 704.</p> <p>7. Same.—Fire.—Insurable Interest.—Life Tenants.—Life tenants have an insurable interést in the house situate upon their land. p. 677.</p> <p>8. Same.—Policies.—Validity.—Presumptions.—Where the insurer issues a fire policy to life tenants, and they pay the premium and the insurer accepts and retains same, the presumption is that the parties in good faith intended to effect a valid contract, p. 677.</p> <p>9. Same.—Policies.—Title of Assured.—Failure to Inquire About.—Presumptions.—Where the insurer issues a fire policy to life tenants without inquiring as to the title, the presumption is that the insurer is satisfied as to the condition of the title and voluntarily issues the policy regardless thereof, p. 678.</p> <p>10. Same.—Policies.—Provisions Broken.—Waiver.—A provision' in a fire policy which is violated to the insurer’s knowledge at the taking effect of such policy, is waived, p. 678.</p> <p>11. Same.—Policies.—“Void” Clauses.—Voidable.—The word “void” as used in clauses in an insurance policy means voidable at the election of the insurance company, p. 678.</p> <p>12. Same.—Policies.—Void.—Effect.—A void insurance policy is binding on nobody, p. 678.</p> <p>13. Same.—Policies.—Voidable.—Avoidance of.—Election.—An insurer, acting with reasonable diligence, has the right to avoid its policy for a condition broken, or it may elect to continue such policy in force, regardless thereof, p. 678.</p> <p>14. Same.—Policies.—Breach of Condition.—Election.—Where s fire policy provided that it should be void in case the assured had other than a fee-simple title to the land on which the insured building stood, and the assured had a life estate only, it was the insurer’s duty upon discovery of that fact to make its election whether it would avoid such policy or continue it in force, p. 679.</p> <p>15. Insurance. — Policies.—Avoidance.—Election.—Notice.—Return of Premium.—Where an insurance company learns of a condition broken in its policy, it must, with reasonable promptness after learning of the breach, notify the assured of such avoidance and the reasons therefor and return to him the unearned premium, p. 679.</p> <p>16. Pleading. — Answer. — Insurance Policies. — Avoidance. — Election,—An answer in avoidance of an insurance policy, because of a condition broken, must set out such condition, a breach thereof by assured and the acts done by the insurer in pursuance of its election to avoid such policy, p. 679.</p> <p>17. Insurance.—Policies.—Voidable.—Retention of Premium,.— The retention of the premium paid for an insurance policy, with knowledge of a condition broken, is an election to treat such policy as valid and not to insist upon a forfeiture, p. 679.</p> <p>18. Pleading.—Insufficient Answer.—Reply.—Demurrer.—Carrying Back.—A demurrer to a reply will be carried back and sustained to an insufficient answer, p. 680.</p> <p>19. Appeal and Error.—Stare Decisis.—Conflict.—-Where the authorities on a question of law are conflicting, the Supreme Court will adopt the rule which seems the most fair, reasonable and just. p. 699.</p> <p>20. Insurance.—Fire.—Life Tenants.—Measure of Loss.—-The measure of loss suffered by life tenants in the destruction of their house, covered by a fire policy, is the value of the insured property when tested by such interest, p. 703.</p> <p>21. Same.—Conduct.—Notice.—Waiver.—An insurance company is chargeable with notice of its own conduct, and a waiver can be manifested by conduct as well as by words, p. 704.</p> <p>22. Same. — Voidable. — Premiums.—Recovery.—The premium paid for a voidable insurance policy cannot be recovered by the assured, the right of avoiding such policy resting solely with such company, p. 704.</p>

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by the State of Indiana against the American Express Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Clinton Circuit Court; Samuel R. Artman, Special Judge.</p> <p>Petition by Edward L. Darby and others, against which John Anderson defends. From a judgment for defendant, petitioners appeal.</p>