Volume 168 — Indiana Reports

<p>1. Injunction. — Breach of Contracts.—Mutuality.—Specific Performance.—An injunction will not issue in favor of plaintiff, a party to a contract, to prevent the defendant’s violation thereof, unless such defendant could enforce specific performance of such contract against plaintiff, or, unless plaintiff has already performed his part of the contract, p. 3._</p> <p>2. Contracts.—Meaning.—Obligation of.—The term" “contract” implies mutual obligations; and, except in cases of options or unilateral obligations, contracts are not usually enforceable against one party, if not as against the other, p. 3.</p> <p>3. Injunction. — Contracts.—Breach.—Specific Performance.— The rules of law, applicable in suits for specific performance, govern suits for injunction to prevent the breach of a contract, p. 4.</p> <p>4. Sales.—Contracts of.—Consideration.—Optional.—Validity.— A contract for the future delivery of personal property is void, for want of consideration and mutuality, where the quantity to be delivered is conditional upon the wish, will or want of one of the parties, p. 5.</p> <p>5. Injunction.—Contracts.—Legal Remedy.—Equity will not take cognizance of the enforcement of contracts where the law furnishes an adequate remedy thereon, or where they are not free from doubt' as to the meaning of their provisions, p. 6.</p> <p>6. Contracts.—Determinable at Will.—Specific Performance.— A contract determinable at the will of either party is not the ' subject of specific performance either directly or by way of enjoining its violation, p. 6.</p> <p>7. Contracts.—Injunction.—Hot Water Heat.—Corporations.— Public Service.—Injunction does not lie in favor of a customer who has contracted with a public service corporation to furnish him hot water heat for an indefinite time, at such customer’s option, at an agreed price, though such customer, in reliance upon such contract, has installed heating apparatus at a large cost in order to use such heat. p. 7.</p>

Erom Owen Circuit Court; Rufus H. East, Special Judge. Application by Oliver P. Cain for liquor license, against which Jonathan L. Allen and others remonstrated. Erom a judgment for remonstrators, the applicant appeals.-

<p>1. Statutes.—Sales of Real Estate.-—-Principal and Agent.— Commissions.—The purpose of the statute (§6629a Burns 1901, Acts 1901, p. 104) was to protect owners of real estate against conflicting claims of alleged agents for services in selling the real estate of such owners, p. 35.</p> <p>2. Contracts.—Commissions.—Sales of Real Estate.—Statutes. —A recovery of commissions for the sale of real estate can be had only by showing a contract in writing therefor, signed by the owner as provided by 16629a Burns 1901, Acts 1901, p. 104. p. 36.</p> <p>3. Same.—Sales of Real Estate.—Commissions.—Statutes.—To Whom Applicable.—The act of 1901 (Acts 1901, p. 104, §6629a Burns 1901), providing that contracts with an owner of real estate for a commission for the sale thereof must be in writing and signed by such owner, does not invalidate a contract between such owner’s agent and a subagent for a commission to be paid by such agent to such subagent for the sale of the owner’s real estate, p. 36.</p> <p>4. Estoppel.—Contracts.—Breach.—Silence.—Where an agent agreed with his subagent that if such subagent would find a purchaser for certain lands, he should receive a certain commission, and such subagent furnished such purchaser, but before the final negotiations such agent revoked by letter any further action by such subagent, the subsequent silence of such subagent during such final negotiations does not estop him from claiming such commission, p. 37.</p> <p>5. Contracts.—Revocation.—An offer by an agent to pay a subagent a certain commission in case such subagent found a purchaser for a farm, which offer was accepted, cannot be arbitrarily revoked during the negotiations of such subagent with a proposed purchaser found by him. p. 37.</p> <p>6. Pleading.—Contracts.—Conclusions of Pleader.—Which Control.—The meaning of a written contract set out in a pleading cannot be changed by an erroneous deduction of the pleader, p. 37.</p> <p>7. Contracts.:—Sales.—Commissions.—A contract providing that if a subagent shall find a purchaser for lands at certain terms, he shall be entitled to a certain commission, such sub-agent’s finding such purchaser entitles him to the agreed commission; and he is not required to conduct the actual negotiations in making the sale. p. 37.</p>

<p>1. Pleading.—Complaint.—Negligence.—Factory Act.—A complaint alleging that plaintiff was employed to roll logs into a vat; that the cover for such vat was standing near such vat, and that, without plaintiff’s fault, such cover fell against plaintiff knocking him into such vat, attempts to state a cause of action under §9 of the factory act (Acts 1899, p. 231, §7087i Burns 1901). p. 40.</p> <p>2. Same.—Complaint.—Negligence.—Factory Act.—Intervening Agency.—Proximate Cause.—A complaint showing that defendant’s vat cover was leaning, as was customary, against a post, and that it fell upon plaintiff, and knocked him into such vat and injured him, while he was exercising due care, sufficiently shows that defendant’s breach of duty in failing to cover such vat was the proximate cause of the injury, p. 40.</p> <p>3. Negligence.—Breach of Duty.—Basis of Liability.—The basis of responsibility for the exercise of due care is the fact that defendant’s omission endangers the safety of a third party, p. 41. '</p> <p>4. Same.—Omissions.—Cause of Injury.—That defendant could reasonably apprehend danger to someone from his omission constitutes negligence toward the injured party, p. 41.</p> <p>5. Same.—Proximate Cause.—Where plaintiff’s injury follows defendant’s negligent omission as a natural sequence and without the intervention of a supervening cause, and such injury is so related to such omission as morally to be i*egarded as the efficient cause, such omission is the legally proximate cause of the injury, p. 41.</p> <p>6. Same.—Proximate Cause.—The efficient and predominating cause of an injury is considered as the legally proximate cause, although subordinate and dependent causes may have assisted, p. 41. ■</p> <p>7. Negligence.—Factory Act.—Effect of.—The effect of §9 of the factory act (Acts 1899, p. 231, §7087i Burns 1901) is to extend the common-law duty of the master in furnishing safe ways, works and machinery, p. 42.</p> <p>8. Same.—Proximate Cause.—Concurring Causes.—Factory Act. —The master is not relieved from liability for the violation of §9 of the factory act (Acts 1899, p. 231, §7087i Burns 1901) because other non-responsible agencies concurred with his negligence in producing the injury complained of. P. H. & F. M. Roots Co. v. Meeker, 165 Ind. 132, distinguished, p. 42.</p> <p>9. Words and Phrases.—“Guard.”—Factory Act.—The word “guard” as used in §9 of the factory act (Acts 1899, p. 231, §7087i Burns 1901) imports a protective or defensive device attached to a machine or implement, p. 43.</p> <p>10. Negligence.—Factory Act.—Vats.—Guards.—Section 9 of the factory act (Acts 1899, p. 231, §7087i Burns 1901) provides for the protection of a vat used in manufacturing, but not to a cover therefor leaning against a post near by. pp. 43, 45.</p> <p>11. Same.—Assumption of Risk.—Factory Act.—The doctrine of assumption of risk does not apply in cases of the violation of the factory act (Acts 1899, p. 231, §9, §7087i Burns 1901). p. 43.</p> <p>12. Appeal.—Joint Exceptions.—A single exception to the overruling of a several demurrer to the paragraphs of a complaint is several as to each paragraph thereof, p. 45.</p>

<p>1. New Trial.—Grounds for.—Omissions of Facts from Special Findings.—Refusal to Sign Tendered Findings.—Omission of the court to make a special finding of facts on all of the issues; omission to find the facts on special paragraphs of answer, and refusal of the trial judge to sign defendant’s tendered special finding of facts, do not constitute grounds for a new trial, pp. 47, 49.</p> <p>2. Appeal.—Assignments of Error.—Evidence.—Sufficiency of. —That the judgment is not fairly supported by the evidence and that it is clearly against the weight of the evidence cannot be assigned as error independently on appeal, p. 48.</p> <p>3. Same.—Special Findings.—Conclusions, of Law.—Exceptions. —No question can be raised on the correctness of the conclusions of law on a special finding of facts unless an exception is reserved to such conclusions of law, a motion to modify the findings or to substitute other findings or conclusions of law being insufficient, p. 48.</p> <p>4. Trial. — Special Findings. — Outside of Issues. — Remedy. — Pacts contained in special findings, which are outside of the issues, may be stricken out on motion, p. 49.</p> <p>5. Trial.—Special Findings.—Outside of Issues.—Judgment.— Where the special findings are entirely outside of the issues, the party not having the burden of proof is entitled to judgment, p. 49.</p> <p>6. Appeal.—Bill of Exceptions.—Special Findings.—Conclusions of Law.—Special findings and conclusions of law thereon cannot be made a part of the record by a bill of exceptions.. p. 49.</p> <p>7. New Trial.—Grounds.—Special Findings Unsupported by Evidence.—That the special findings are not supported by the evidence is a ground for a new trial, p. 50.</p> <p>8. Appeal.—Bill of Exceptions.—Presentation to Judge.—Where the original bill of exceptions was not signed by the trial judge and filed until after the time allowed therefor, a memorandum, beneath the judge’s signature, but wholly outside the bill of exceptions, to the effect that the bill was presented to him within the time allowed, is not a compliance with §641 Burns 1901. p. 50.</p> <p>9. Same.—New Trial.—Evidence Not in Record.—Reasons for a new trial, depending upon the evidence, will not be considered on appeal where the evidence is not in the record, p. 51.</p> <p>10. Same.—Death of Party.—Date of Decision.—The decision on appeal, where a party dies after submission, will be entered as of date of submission, p. 51.</p>

<p>Criminal Law.—Judgment.—Sentences.—Concurrent Operation of:—Habeas Corpus.—Habeas corpus 'lies to release a pauper prisoner who has served thirty-two days in jail, where he entered pleas of guilty on the same day to seven indictments and was fined $25 and the costs, aggregating $32 in each case, there being no provision in any of such judgments to postpone the taking effect thereof.</p>

<p>1. Pleading.—Complaint.—Foreclosure.—Liens.—Sewer Assessments.—Municipal Corporations.—It is not necessary, in a complaint for the foreclosure of a sewer-assessment lien, to allege that notice was given to the defendant of the amount of the assessment and of the place of payment, as provided by §3626a Burns 1901, Acts 1901, p. 363, since §3846 Burns 1901, Acts 1901, p. 492, in specifying the necessary allegations' of such a complaint, omits such fact, the giving of such notice being properly considered as a condition subsequent to be proved by the plaintiff, p. 58.</p> <p>2. Same. — Complaint.-—Sewer-Assessment Liens.—Foreclosure. —Under the act of 1901 (Acts 1901, p. 492, §3846 Burns 1901) a complaint for the foreclosure of a sewer-assessment lien is sufficient so far as the final assessment is concerned, if it shows the amount and date of such assessment, p. 60.</p> <p>3. Same.—Complaint.—Sewer-Assessment Liens.—Description.—. A complaint showing the number and date of the declaratory resolution of the board of public works for the construction of a “main sewer in Northwestern avenue from Fall creek to Crown Hill Cemetery and branches thereto in said city,” and also showing a subsequent modification of such resolution by such board, sufficiently identifies the improvement made. p. 60.</p> <p>4. Same. — Complaint. — Statutes.—Sewer-Assessment Liens.— Foreclosure.—A complaint for the foreclosure of a sewer-assessment lien, which substantially follows the form prescribed therefor by statute (§3846 Burns 1901, Acts 1901, p. 492), is sufficient, although it further shows that details, drawings and specifications were on file at the time of the adoption of the declaratory resolution and fails to show that a map thereof was on file at such time. p. 60.</p> <p>5. Words and Phrases. — “Modified.” — Statutes. — The word “modified,” as used in section one of the act of 1901 (Acts 1901, p. 608, §3859b Burns 1901) in reference to a resolution ordering the construction of a sewer, imports a change or alteration of the form, character, force, appearance or quality of the resolution. p. 64.</p> <p>6. Municipal Corporations.—Sewers.—Modifications.—Statutes. —The right of modification, in the absence of a forbidding statute, of the boundary of the drainage area of a sewer or of the details of such proposed work, is implied from a general grant of a right to construct such sewer, p. 64.</p> <p>7. Municipal Coepoeations.—Sewers.—Modification.—Jurisdiction.—The board of public works of a city does not lose jurisdiction over a proposed sewer improvement because of a modification of the plans thereof, p. 64.</p> <p>8. Same.—Sewers.-—Orders Affecting.—Collateral Attack.—The validity of an assessment for the construction of a sewer cannot, except for fraud, be collaterally attacked, where the board making such assessment had color of authority to proceed, p. 65.</p> <p>9. Same.—Sewers.—Modification of Plans.—Notice of.—Liens.— Property owners are not entitled to a hearing on the question of a modification of the plans for a proposed sewer, the statute (Acts 1901, p. 608, §§3859b-3859f Burns 1901) providing for a final hearing, before the establishment of the lien, upon all judicial questions concerning same. p. 65.</p> <p>10. Same.—Sewers.—Construction.—Police Power.—Taxation.— The construction of sewers by cities is an exercise of the police power, and involves the right of taxation, such exercise being largely discretionary and administrative, p. 66.</p> <p>11. Constitutional Law. — Drainage.—Taxing Districts.—The legislature has the power to create taxing districts for the accomplishment of drainage without granting a-hearing on the need thereof to the citizens residing in such district, p. 66.</p> <p>12. Municipal Coepoeations. — Sewers. — Modifications. — Branches.—The board of public works of a city has the right, without giving a hearing thereon to the property owners interested, to add. a branch sewer to a proposed sewer ordered after a general hearing thereon, p. 67.</p> <p>13. Same.—Sewers.—Location of.—The board of public works of a city has the power to construct a sewer along the line of a proposed street, and no objection lies thereto, especially where such proposed street was opened before the final hearing of the sewer proceedings, p. 67.</p> <p>14. Same. — Sewers.—Cemeteries.—Assessments.—Under §3859f Burns 1901, Acts 1901, p. 608, §5, cities are required to pay from their general funds the portion of a sewer assessment properly assessable against lands used as cemeteries, p. 67.</p> <p>15. Same. — Sewers.—Connections.—Compensation.—The agreement of the board of public works of Indianapolis to permit the Crown Hill Cemetery corporation to connect, for its outlet, its sewerage system with one ordered by such board, and the payment of an agreed sum therefor by such corporation, does not invalidate the prior resolution of such board for the construction of such city’s sewer, p. 68.</p> <p>16. Municipal Corporations. — Sewers.—-Assessments against City.—Where the assessable cost against a cemetery for sewer construction exceeds $500, the contractor must rely upon the passage of a special ordinance carrying the increased amount, as provided by §3859e Burns 1901, Acts 1901, p. 608, §4, no independent steps in the circuit court being necessary to assess such city for cemetery benefits, p. 68.</p> <p>17. Same.—Sewers.—Cost in Excess of Benefits.—Contracts.— Estimates.—Under §3859b Burns 1901, Acts 1901, p. 608, §1, the board of public works of a city cannot construct a sewer whose cost will exceed the assessed benefits, nor can a contract be let for the construction of a sewer for more than the estimated cost. p. 69.</p> <p>18. Same.—Sewers.—'Jurisdiction.—Irregularities.—The acts and orders of a board of public works in the construction of a sewer are void where jurisdiction is not first obtained; but where it is obtained, the failure to follow the prescribed formalities of a statute, where no injury results, constitutes an irregularity only, and does not vitiate the proceedings, p. 69.</p> <p>19. Judgment.—Collateral Attack.—Cities.—Sewers.—Mere irregularities by the board of public works in the construction of a sewer, even though in obtaining jurisdiction, do not render the proceedings subject to collateral attack, p. 70.</p> <p>20. Municipal Corporations.—Assessments for Sewers.—Derivation of Power.—Cities have only a statutory right to assess property owners for the construction of sewers, p. 71.</p> <p>21. Same. — Sewers. — Necessity for. — Governmental Power.— Cities, in determining the question of the necessity for the construction of a sewer, act in a governmental capacity, p. 71.</p> <p>22. Same.—Sewers.—Construction.—Jurisdictional Provisions.— Provisions in a statute concerning the construction of sewers, which have to do with the orderly method of such construction, are not jurisdictional; but those which place a cheek upon the power of the city to proceed, are jurisdictional, p. 71.</p> <p>23. Same.—Sewer Assessments.—Basis.—The basis of the power of local assessments for the construction of a sewer lies in the receipt, actual or constructive, of benefits therefrom, otherwise such assessments would constitute confiscation, p. 71.</p> <p>24. Same. — Sewers.—Districts.—Assessments.—Benefits.—Cost. —Statutes.—Mandatory.—The provisions of the statute (§3859b Burns 1901, Acts 1901, p. 608, il) requiring the board of public works to enter its findings as to the boundaries of the proposed sewer district, and also that the benefits shall equal or exceed the cost thereof, are strictly mandatory, and a disregard thereof by such board renders an assessment void. p. 72,</p> <p>25. Municipal Corporations. — Sewer Districts. — Benefits.— Findings.—Record.—The findings of the board of public works that a certain territory shall constitute a sewer district, and that the benefits from the construction of the proposed sewer are equal to or greater than the cost, must be entered of record, p. 72.</p> <p>26. Same. — Sewer Districts. — Subsequent Enlargement of. — Right of Complaint.-—-The subsequent enlargement of a sewer district by the board of public works of a city cannot be upheld by the courts on the ground that the additional property taken in paid a sum towards the construction of the sewer sufficient to reduce the cost to the owners in the original district below the amount of the original estimates, the duty of making proper assessments being vested in the local authorities and not in the courts, p. 72.</p> <p>27. Same.—Sewer Assessments.—Injunction.—Estoppel.—A failure by an assessed property owner to enjoin the construction of a proposed sewer does not estop such owner from defending against an assessment therefor, where the proceedings in reference to such construction are void. p. 74.</p> <p>28. Same. — Sewer Assessments.—Injunction.—Diligence.—Estoppels—In order to restrain the collection of a sewer assessment, the property owner must act in good faith and with reasonable diligence, otherwise an injunction will be denied, acquiescence being presumed, p. 74.</p> <p>29. Same.—Sewer Assessments.—Validity.—Notice of Contest.— Estoppel.—Where a property owner gives notice to the contractor, before the construction of a sewer, that he will contest the validity of the assessment therefor, he is not estopped from defending against such assessment, where the assessing tribunal has exceeded the limitations of its powers, p. 75.</p> <p>30. Same. — Sewer Assessments.—-Void. — Supplementary Proceedings. — Statutes. — Remedial. — V alidity. — Under §3859e Burns 1901, Acts 1901, p. 608, §4, supplementary proceedings may be had to supply defects in an invalid sewer assessment; and such remedial statute is valid, though it extends to jurisdictional matters, p. 75.</p> <p>31. Same. — Sewer Assessments. — Void. — Remedy. — Where a sewer assessment is void because of a jurisdictional defect, the board of public works has the right, under §3859e Bums 1901, Acts 1901, p. 608, §4, after due notice to property owners, to take the required legal steps, so far as conditions permit, and make a new assessment, p. 77.</p>

<p>1. Taxation.—Delinquencies.—Collection.—Remedies.—Statutes. —The legal remedies referred to in §8571 Burns 1905, Acts 1903, p. 49, §21, for the collection of delinquent taxes, are the existing, appropriate legal remedies for the collection of debts. p. 80.</p> <p>2. Statutes.—Construction.—Supplementary Proceedings.—Executions.—The statute (§827 Burns 1901, §815 R. S. 1881) providing for proceedings supplementary to execution, being in derogation of the common law, is strictly construed, and the plaintiff must bring himself strictly within its terms, p. 80.</p> <p>3. Execution.—Supplementary Proceedings.—Requirements of. —A proceeding supplementary to execution cannot be maintained under §827 Burns 1905, §815 R. S. 1881, without first procuring a judgment against defendant and a return of an execution thereon showing no property, p. 81.</p> <p>4. Judgment.—What is.—A judgment imports the final sentence or decision of a court of law, wherein the rights of the parties therein are judicially determined, p. 81.</p> <p>5. Same. — Collateral Attack. — Supplementary Proceedings.— Defendant, in supplementary proceedings, cannot question the judgment on which such proceedings are founded, p. 81.</p> <p>6. Appeal.—Complaint.—Change of Theory.—The plaintiff will not be permitted, on appeal, to change the theory of his complaint. p. 81.</p>

<p>1. Municipal Corporations. — Franchises. — Gas.—Subsequent Fixing of Prices.—Prior to 1905, cities had no right, by subsequent ordinance, to fix the price of gas furnished to patrons within the city, where an unrestricted franchise to lay pipes in the street and supply customers with gas had been accepted and acted upon by the gas company, p. 84.</p> <p>2. Same.—Powers.—Doubts.—Municipal corporations have only such powers as are expressly or impliedly conferred upon them by the legislature, and doubts concerning the existence of a power are resolved against such corporation, p. 85.</p> <p>3. Same.—Regulation of Sales of Gas.—Contracts.—Franchises. —Under §3477 Burns 1905, cl. 36, Acts 1905, p. 219, §53, conferring upon cities the power “to fix' by contract or franchise, the prices” of gas, cities have no right, by an ordinance unaccepted and unassented to, to fix the price of gas sold by a company theretofore occupying the streets and selling under an unrestricted franchise, p. 85.</p> <p>4. Same.—“Franchise.”—What is.—A “franchise,” as the word is used in §3477 Burns 1905, cl. 36, Acts 1905, p. 219, §53, imports a grant, by a municipality, of the use of the streets and public places for the purpose of supplying heat, light or water, p. 86.</p> <p>5. Same. — Franchises. — Reservations of Power to Fix Gas Rates.—A municipal corporation may lawfully reserve and exercise the right to fix the price of gas furnished by a company using its streets under a franchise granted to such company, p. 86.</p> <p>6. Municipal Corporations.—Power to Prescribe Gas Rates.— Municipal corporations, in the absence of constitutional or statutory provisions, expressly or impliedly giving the right, have no power to prescribe rates to be charged by gas companies to their consumers, p. 86.</p>

<p>1. Trial.—Evidence.—Objections to Admission.—An objection that offered evidence is “immaterial and irrelevant” raises no question, p, 89.</p> <p>2. Evidence. — Dying Declarations.—Homicide.—Dying declarations, to be admissible in evidence in a homicide case, must have been made while declarant was under a sense of impending death and without hope of recovery, p. 90.</p> <p>3. Same. — Dying Declarations'. — Admissibility. — Who Determines.—-The trial judge and not the jury determines the competency and admissibility of evidence of dying declarations, p. 90.</p> <p>4. Same.—Dying Declarations.—How Determined.—Whether a declaration is made when declarant was under a sense of impending death and without hope may be shown by declarant’s declarations or by the circumstances of his injury and his condition. p. 90.</p> <p>5. Same.—Dying Declarations.—What Are.—Where declarant was shot in the abdomen three hours before the witness spoke with him, and was suffering intensely and he said to witness: “I am all in,” “I am a goner” and “he [defendant] has made a sieve of my insides,” and then closed his eyes, his declarations are admissible on the charge of homicide, p. 91.</p> <p>6. Appeal.—Dying Declarations.—Admission of.—The Supreme Court will not reverse the ruling of a trial judge in admitting dying declarations, unless error is manifest, the trial judge being in a better position to weigh evidence of their admissibility, p. 91.</p> <p>7. Homicide. — Venue.—Evidence.—Sufficiency.•—Where an indictment was returned and trial had in Marion county, evidence that defendant committed the crime at the rear of number 2336 Indianapolis avenue, and that it occurred in “this county and State,” sufficiently sustains the venue, p. 92.</p> <p>8. Indictment and Information.—Return of.—Evidence.—Recording.—Where the record, on appeal, shows that an indictment was returned into open court by a regularly organized and qualified grand jury, it is not subject to a motion to quash because not shown to have been filed in court, though the clerk did not endorse the fact of its return or filing, or record same, p. 92.</p> <p>9. Same.—Return.— Regularity.—Appeal and Error.—Where defendant’s substantial rights are not shown to have been violated, a reversal will not be ordered, where the record shows the regular empaneling of a grand jury, the return of an indictment into open court, the proper endorsements on such indictment and a trial and conviction thereon, p. 93.</p>

<p>1. Constitutional Law.—Taxation.—Delegation of Power of.— The power of taxation is possessed solely by the legislature, but it may be delegated by the legislature to municipal corporations for local purposes, p. 96.</p> <p>2. Same.—Taxation.—Public Libraries.—Under §1, article 8, of the Constitution, providing for a system of general education and eomhion schools, the power of taxation may be conferred upon the local authorities for the purpose of establishing and maintaining public libraries, p. 97.</p> <p>3. Constitutional Law. — Statutes.—Taxation.—Public Libraries.—The act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), providing for the maintenance and management of public libraries in certain cities, and requiring the officers thereof to levy taxes therefor, is valid, being a part of the educational system of the State, p. 97.</p> <p>4. Same.—Statutes.—Acquiescence.—Long acquiescence without any objection to a statute may be considered in favor of the constitutionality thereof, p. 97.</p> <p>5. Same.—Taxation.—Delegation of Power of, to Department of City.—Under §1, article 8, of the Constitution, providing for the establishment of a general system of education and common schools, the legislature may delegate the full portion of a city’s taxing power therefor, to a department within such city, such matter being largely discretionary with the legislature, p. 98.</p> <p>6. Same. — Statutes.—Public Libraries.—Corporations.—Special Act.—The act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), providing for the maintenance and control of public libraries in certain cities, is not in conflict with §13, article 11, of the Constitution, providing that corporations, other than banking, shall not be created by special act, since such act merely regulates the existing powers of such cities, p. 98.</p> <p>7. Same. — Municipal Corporations. — Library Boards.—The library board, created by the act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), is not a corporation within the meaning of §13, article 11, of the Constitution, providing for the creation of corporations, p. 99.</p> <p>8. Same. — Libraries. — Schools.—Statutes.—General.—Local.— Legislative Question.—The act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), providing for the control and maintenance of public libraries in certain cities, is not governed by §1, article 8, of the Constitution, providing for a uniform system of common schools, but is governed by §23, article 4, providing that laws shall be made general where they can be made applicable, the question whether they can be made general being for the legislature, p. 99.</p> <p>9. Same.—Statutes.—Taking Effect.—The act of 1903 (Acts 1903, p. 193, §2, §4983i Burns 1905), providing that on the filing of a certain petition, the city councils may appoint library boards to take charge of their public libraries, does not conflict with §25, article 1, of the Constitution, providing that laws shall not be passed, the taking effect of which depend upon any authority except as provided in the Constitution, p. 99.</p> <p>10. Constitutional Law.—Statutes.—Special Privileges.—Equal Protection.—The act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), providing for the maintenance of public libraries in certain cities, does not conflict with §23, article 1, of the Constitution, providing for equal privileges and equal protection by the law. p. 100.</p> <p>11. Same.-—Contracts.—Impairing Obligation of.—Police Power. —Municipal Corporations.—The act of 1903 (Acts 1903, p. 193, §§4983h-4983s Burns 1905), providing for the maintenance of public libraries in certain cities, being in the exercise of the police power of the State over its municipal corporations, is not in violation of §10, article 1, of the federal Constitution, prohibiting the passage of a law, by a state, which impairs the obligation of a contract, though it violates an “understanding” of the complaining city. p. 100.</p> <p>12. Municipal Corporations. — Trustees. — Change of. — The legislature may at any time change the trustee of any property or .delegated power belonging to a municipal corporation, p. 100.</p>

Erom Elkhart Circuit Court; J. D. Ferrall, Judge. Suit by Melville C. Clarke, as receiver of the American Savings & Loan Association, against Charles L. Darr and others. Erom a decree for plaintiff for less than the prayer of his complaint, he appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Mortgages. — Husband and■ Wife.—Effect of Wife’s Signar ture.-—-The legal effect of a wife’s joining in the execution of her husband’s mortgage on his real estate, is to bar her inchoate interest as against the mortgagee and his privies, p. 127.</p> <p>2. Same.—Foreclosure.—Rights of Wife.—The wife, although she joins the husband in the execution of a mortgage on his land, is entitled under the statute, or apart from it, to a decree that his interest shall first be exposed for sale. pp. 127, 128.</p> <p>3. Same.—Foreclosure.—Creditors.—Rights of Wife.—On the foreclosure of a mortgage executed by a husband and wife on his lands, the wife is entitled, as against other creditors, to her marital rights out of the surplus of the proceeds of the sale, p. 127.</p> <p>4. Same.—Foreclosure.—Redemption from, by Wife.—Enforcement of Mortgage by Wife.—A wife, upon redeeming from a foreclosure of a mortgage executed by her husband and herself upon his land, may enforce the whole of such claim against the husband’s two-thirds interest, p. 127.</p> <p>5. Mortgages.—Foreclosure.—Sale of Husband’s Two-Thirds.— Rights -of Wife.—Where the court, on foreclosure, first decrees the sale of the husband’s two-thirds of the mortgaged land for the payment of the mortgage debt and such part sells for enough to satisfy the debt, the wife’s inchoate right to the remaining one-third, at the expiration of the redemption year, becomes vested in her absolutely, p. 128.</p> <p>6. Statutes. — Construction. —- Husband and Wife. — Judicial Sales.—The statute (§2669 Burns 1901, §2508 R. S. 1881), providing that the wife’s inchoate interest in her husband’s land shall become vested where the husband’s land is sold at a judicial sale, must be liberally construed in favor of the wife, p. 129.</p> <p>7. Same. — Husband and Wife.—Dower.—Judicial Sales.—The statute (§2669 Burns 1901, §2508 R. S. 1881), providing that on a judicial sale of the husband’s land the wife’s inchoate interest shall vest, is a substitute for her common-law dower, which constituted a legal, equitable and moral right, p. 129.</p> <p>8. Contracts.—Consideration.-—Marriage.—Husband and Wife. —Marriage is a valuable 'consideration; and the wife is regarded, so far as she receives property by virtue thereof, as a purchaser for a valuable consideration, p. 129.</p> <p>9. Judicial Sales. — Wife’s Rights. — Subsequent Deed from, Husband to Wife’s Third.—Purpose of Statute.—A subsequent deed, the wife not joining, to the wife’s one-third of land of the husband, two-thirds of which was first ordered sold at judicial sale, conveys nothing, the statute (§2669 Burns 1901, §2508 R. S. 1881) vesting title to same in her, the purpose of the statute being to secure the wife against the husband’s . misfortune as well as his improvidence, p. 130.</p> <p>10. Statutes.—Husband and Wife.—Descent and Distribution.— Judicial Sales.—Dower.-—The statute (§2669 Burns 1901, §2508 R. S. 1881), providing that the wife’s inchoate interest in her husband’s land shall vest when such land is sold at judicial sale, is not cut down-, so as to make such interest subject to the husband’s creditors, by reason of §2640 Burns 1901, §2483 R. S. 1881, providing that upon the husband’s death one-third of his real estate shall descend to her free from his creditors, p. 130.</p> <p>11. Mortgages. — Foreclosure. — Redemption. — Wife’s Inchoate Rights.—A redemption, by the husband, of his land sold at judicial sale, prevents the vesting of the wife’s inchoate interest therein, p. 131.</p> <p>12. Constitutional Law.—Husband and Wife.—Judicial Sales. —Wife’s Inchoate Rights.—The statute (§2669 Burns 1901, §2508 R. S. 1881), providing that on judicial sale of the husband’s land the wife’s inchoate interest shall vest, does not deprive the husband of his property without due process of law. . p. 131.</p>

<p>1. Partition. — Judicial Sales. — Husband’s Creditors. — Wife’s Rights. — Parties. — Estoppel.—Where a wife files a cross-complaint, after the sale of her husband’s interest in land in a suit for partition, praying that she be given, as against the husband’s creditors, out of the proceeds in the commissioner’s hands, her inchoate marital interest, she is estopped from claiming that she was a necessary party to the suit for partition, and it will be assumed that the complete title was transmitted by the sale, p. 134.</p> <p>2. Husband and Wife. — Dower. — Descent and Distribution. — The marital right of the widow is highly favored in law, since it is a moral, legal and equitable right, p. 135.</p> <p>3. Statutes.—Construction.—Dower.—Descent and Distribution. —Statutes guarding or amplifying the marital rights of the widow are liberally construed in her favor, p. 135.</p> <p>4. Contracts.—Consideration.—Husband and Wife.—Marriage is a valuable consideration; and the wife is regarded, so far as she receives property by virtue thereof, as a purchaser for a valuable consideration, p. 136.</p> <p>5. Husband and Wife. •— Inchoate Bights.—Protection of.—The wife’s inchoate right in her husband’s land is more than a mere possibility; and it may be protected by the courts, p. 136.</p> <p>6. Mortgages. — Wife’s Inchoate Bights. — Protection of. — The courts, on the foreclosure of a mortgage on the husband’s land, will protect, by appropriate order, the wife’s inchoate rights therein, as given by §2669 Burns 1901, §2508 R. S. 1881, vesting in the wife her inchoate rights in her husband’s land sold at judicial sale for the payment of his debts, p. 136.</p> <p>7. Same.—Foreclosure.—Bights of Wife as against Creditors.— The wife is entitled, as against general creditors, under §2669 Burns 1901, §2508 R. S. 1881, to her third of the proceeds of the sale of her husband’s lands sold under foreclosure of a mortgage executed by the husband and herself, p. 137.</p> <p>8. Partition.—Creditors.—Wife’s Inchoate Bights.—Under §2669 Burns 1901, §2508 R. S. 1881, the wife is entitled, as against her husband’s creditors, to her third of the proceeds, belonging to the husband, of a sale of the husband’s land in partition, such sale being involuntary as to her. p. 137.</p> <p>9. Conversion. — Equitable. — Beal Property. — Personalty. — Equitable conversion consists in treating property as if the equity has been worked out, and as impressed with its then character; and where real estate has been converted into money by . compulsory process, it will be treated, so far as the interested parties are -concerned, as if it were real estate, p. 138.</p>

From Huntington Circuit Court; A. H. Plummer, Special Judge. Petition by Charles L. Regadanz for license to retail intoxicating liquor, against .which Frank E. Haines and others remonstrate. From a judgment for remonstrants, petitioner appeals.

<p>1. Pleading.—Complaint.—Sufficiency when Attacked for First Time on Appeal.—-A complaint, when attacked for the first time on appeal, will be held sufficient unless some essential element is wholly omitted therefrom, p. 146.</p> <p>2. Same. —• Complaint.—Eminent Domain.—Railroads.—A complaint for the condemnation of land for a railroad right of way showing the name of the condemning company, the names of the owners and lienholders of the property to be condemned, the intended use of the property, the location, width and termini of the right of way, a description of the land to be taken for making embankments, and a failure to agree with the owner as to the purchase price thereof, states a good cause of action under §894 Burns 1905, Acts 1905, p. 59, §2. p. 147.</p> <p>3. Pleading.—Objections.—Eminent Domain.—Preliminary Trial. —Statutes.—Judgment.—Under §897 Burns 1905, Acts 1905, p. 59, §5, a landowner is required to assert, on the preliminary hearing, any objections, whether of law or of fact, which he may . have to the plaintiff’s right to condemn his lands; and the order of the court appointing appraisers is conclusive as to plaintiff’s right to condemn, p. 147.</p> <p>4. Same.—Objections.—Eminent Domain.—Preliminary Issues.— Measure of Damages.—Statutes.—Objections by the defendant landowner, that §897 Burns 1905, Acts 1905, p. 59, §5, is unconstitutional, and that such defendant owned several parcels of land through which the condemning railroad company was compelled to pass and that such company offered defendant damages separately for one parcel only, and refused to consider the parcels as a whole in the estimate of damages, do not constitute a defense on the preliminary hearing of a condemnation proceeding under §894 Burns 1905, Acts 1905, p. 59, §2, giving plaintiff the right to condemn by parcels or in a body. p. 151.</p> <p>5. Same.—Exceptions.—Award of Damages.—Eminent Domain. —Railroads.-—-Trial.—If a landowner is aggrieved at the damages assessed by the appraisers in eminent domain proceedings (§896 Burns 1905, Acts 1905, p. 59, §4), he may file exceptions to the award, and have a trial by jury on such question, p. 151.</p> <p>6. Eminent Domain.—Damages.—Railroads.—A landowner is entitled to all direct and consequential damages caused by the appropriation of his land by a railroad company, and by the operation of its trains thereon, p. 151.</p> <p>7. Same .—Failure of Landowner to Object.—Remedy.—Where a landowner or other interested person stands by and permits a railroad company to appropriate his land or his interest therein, he may, under §903 Burns 1905, Acts 1905, p. 59, §11, have an appraisement thereof and recover compensation and damages substantially as if such land or interest had not been taken, p. 152.</p> <p>8. Constitutional Law.—Confiscation.—Eminent Domain.—The eminent domain act of 1905 (Acts 1905, p. 59, §§893-904 Burns 1905) does not deprive landowners of their property without just compensation, p. 152.</p> <p>9. Same.—Eminent Domain.—Delegation of Authority—Political Question.—Railroad companies have the right, under the eminent domain act of 1905 (Acts 1905, p. 59, §§893-904 Burns 1905), to decide upon the necessity for appropriating certain lands for a railroad right of way, and their decision is not subject to review by the courts, -such question being one of political sovereignty and wholly legislative, p. 153.</p>

<p>1. Evidence.—Presumptive.—Relevancy.—Evidence of a collateral fact is admissible to prove the controverted fact, provided a logical and reasonable inference of the existence of the controverted fact can be drawn from the existence of such collateral fact. p. 156.</p> <p>2. Same.—Reports of Dangerous Character of Decedent.—Denial by Showing True Character.—Where defendant testifies that he had heard, from unknown persons, reports that the decedent had killed a man in arresting him, the State may prove, in rebuttal, that the man supposed to have been killed died from natural causes and had no marks of violence upon him. p. 156.</p> <p>3. Trial. — Instructions.—Phrasing of.—It is not reversible error to refuse to give a requested instruction, where the court gives one substantially covering the points involved, though the requested instruction was more appropriately phrased than the one given, p. 157.</p> <p>4. Same.—Instructions.—Reasonble Doubt.—Individual Views of Jurors.—An instruction, in a criminal case, that “each juror should act for himself and form his own judgment uninfluenced by and independent of the judgment of others, and thus determine the guilt or innocence of the defendant from his own standpoint,” is not harmful to defendant because it lays too much stress upon the decisions arrived at by the jurors individually. p. 158.</p> <p>5. Trial.—Instructions.—Nondirection as to Consultation to Arrive at Verdict.—Effect.—An instruction, in a criminal case, .■which charges the jury as to their individual duties in arriving at the guilt of defendant, but which fails to direct them, in terms, to consult in arriving at their verdict, is not bad, since, there being nothing in such instruction to forbid such consultation, the jury would understand that it was their duty to consult. p. 159.</p> <p>6. Same.—Instructions.—Verbal Criticisms.—Misleading Jury.— Mere verbal criticism, hypercritical objections and strained constructions of instructions will not lead to the reversal of a case, p. 159.</p> <p>7. Same. — Instructions. — Construction.—Misleading Jury.—An instruction, open to two interpretations, will not be cause for a reversal, unless it can.be said that the jury was misled thereby, p. 159.</p> <p>8. Same.—Instructions.—Misleading Jury.-—Presumptions in favor of Jury.—Whether an instruction misled the jury is a practical and not an academic question, jurors being presumed to be possessed of good common sense, p. 159.</p> <p>9. Same.—Instructions.—Nondirection.—Duty of Parties to Present Applicable Instructions.—Where a given instruction fails to direct the jury to consult in determining their verdict, no complaint can be made thereof, unless the complaining party tenders to the trial judge a proper instruction covering such point. p.° 160.</p> <p>10. Same.—Instructions.—Reasonable Doubt.—Individual Opinions of Jurors.—An instruction which tends to cause the jurors to think it would be improper to render a verdict of guilty if any of them individually should have a reasonable doubt of ■ defendant’s guilt, is improper, since, upon consultation, a juror may become convinced of his error in such opinion, p. 160.</p> <p>11. Same.—Instructions.—Singling out Facts.—Intoxicated Witnesses.—Credibility.—It is not reversible error, in a criminal case, to refuse to charge that the jury may, in weighing the testimony, consider whether any of the witnesses were intoxicated, since the jurors are presumed to be fully informed upon such question, p. 160.</p> <p>12. Same.—Instructions.—General Rules Preferable to Special.— General instructions that the jury should consider all matters in connection with the witnesses which would, in their.judgment, throw light upon their credibility, are preferable to special. p. 161.</p> <p>13. Appeal.—Briefs.—Points and Authorities.—A failure to refer to a question in the “points and authorities” portion of the brief, is a waiver of such question, p. 163.</p> <p>14. Same.—Briefs.—Failure to Set out Evidence to Show Instruction Asked was Applicable.—A failure, by appellant, to set out in his brief the evidence to show that a requested instruction was applicable thereto, is a waiver of such alleged error, p. 163.</p>

<p>1. Criminal Law.—Repeal.—Saving Clauses.—The act of 1905 (Acts 1905, p. 584), codifying the criminal laws, did not repeal the prior criminal statutes, so far as offenses are concerned committed prior to the taking effect of said act. p. 165.</p> <p>2. Indictment and Information.—Forgery.—Writing.—An indictment charging that defendant forged the following writing:</p> <p>“History of Henry County, Indiana. Military Edition. Fully Illustrated. By George Hazzard. Two volumes, $10. Subscribers_Post-office address Nelson Allen ¡ Mooreland, Indiana.” is sufficient under §2354 Burns 1901, §2206 R. S. 1881. p. 165.</p> <p>3. Words and Phrases. — “Subscriber.” — Forgery.—The term “subscriber” denotes one who subscribes; one who enters his name for an article, p. 166.</p> <p>4. Words and Phrases. — “Subscribe.” — The term “subscribe” denotes the signing of one’s name to a writing with the intention of giving consent to the contents thereof, p. 167.</p> <p>5. Contracts. — Subscription.—Sufficiency.—A subscription paper signed by the subscriber in the following' form:</p> <p>“History of Henry County, Indiana. Military Edition. Fully Illustrated. By George Hazzard. Two volumes. $10. Subscribers_Post-office address Nelson Allen | Mooreland, Indiana.” constitutes on its face a complete contract, pp. 167, 168.</p> <p>6. Forgery. — Writing. — Legal Validity of.—The unauthorized signing of another’s name to a writing which discloses upon its face that it has some apparent legal effect, though it does not appear to be perfect, constitutes forgery, p. 167.</p> <p>7. Same. — Writing. — Void. — Where a written instrument appears upon its face to be void as a matter of law, a charge of forgery thereof cannot be maintained, p. 167.</p> <p>8. Same.—Writing.—Legal Effect of.—Forgery may be predicated upon any writing, which, if genuine, would operate as the foundation of a person^ liability or the evidence of his right, p. 168.</p> <p>9. Indictment and Information.— Forgery. — Writing.—Apparently Void.—Extrinsic Facts.—An indictment for the forgery of an apparently void instrument must show such extrinsic facts as will show such writing to have a legal effect, p. 168.</p>

Erom Montgomery Circuit Court; Jere West, Judge. Suit by Robert B. Stimson, as administrator of the estate of Lucy Stimson, deceased, against Charles Rountree, as executor of the will of Elorence B. Rountree, deceased, and another. Erom a decree for defendants, plaintiff appeals. Transferred' from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

Erom Tipton Circuit Court; J. F. Elliott, Judge. Highway improvement petition by John Goodnight and others, against which Joseph G. Kemp and others remonstrate. Erom a judgment for petitioners, remonstrants appeal.

<p>1. Constitutional Law.—Police Power.—Exercise of, by State. —Local Government.—The maintenance of good order and the suppression of crime are matters of state interest; and whether they can best be obtained by means of a centralized or a local government, is wholly for the legislature, p. 182.</p> <p>2. Same.—Metropolitan Police Law.—Local Support.—The state may impose upon cities a*id towns the duty of supporting their police appointed by the central authority designated by law. City of Evansville v. State, ex rel., 118 Ind. 426, distinguished. p. 182.</p> <p>3. Same. — Officers. — Salaries.—Delegation of Power to Fix.— Statutes.—The act of 1901 (Acts 1901, p. 24, §3717 Burns 1901), requiring the Governor to appoint metropolitan police boards in certain cities, and, within certain limits, to fix their salaries, and section two of the act of 1897 (Acts 1897, p. 90, §3718 Burns 1901), giving such boards the right to designate the salaries of the police appointed by them, are not unconstitutional as attempts to delegate the legislative powers of the State, p. 183.</p> <p>4. Same. — Delegation of Legislative Powers. — Execution of Laws.—The legislature cannot delegate , to others the power to make laws, but it may give discretion to others in the enforcement of the laws made. p. 184.</p> <p>5. Same.—Delegation of Legislative Powers.—Metropolitan Police.—Salaries.—The legislature may delegate to the Governor the right to fix the salaries of metropolitan police within certain maximum and minimum limits, p. 185.</p> <p>6. Same. — Established Usage__Effect. — In eases of doubtful constitutional validity, the established customs and usage of the state will be considered in upholding a statute, p. 186.</p> <p>7. Statutes.—Repeal.-—Metropolitan Police Law.—The act of 1905 (Acts 1905, p. 219, §3462 et seq. Burns 1905), governing towns and cities, does not repeal the metropolitan police law of 1897 or its amendment of 1901 (Acts 1897, p. 90, Acts 1901, p. 24, §3717 et seq. Burns 1901). p. 187.</p> <p>8. Same. — Construction.—Intent.—Letter.—The spirit and not the letter of a statute governs its interpretation, p. 188.</p> <p>9. Statutes.—Language.—General.—Special.—Special provisions in a statute govern general ones. p. 188.</p> <p>10. Same.—Statutory Construction.—Where the legislature declares the construction of an act, by a provision therein, the courts will give effect to such construction, though, without it, a different construction would be given, p. 189.</p> <p>.11. Same.—Construction.—Legislative Journals and Records.— The courts will, in the construction of a doubtful statute, examine, as an aid, the legislative journals and records, p. 189.</p> <p>, 12. Same. — Construction. — Departmental. — Where a statute, dealing exclusively with executive powers and duties, has been interpreted and acted upon by the executive department, and a different construction would prejudice a great many people, the courts will incline to the executive interpretation, p. 190.</p> <p>13. Same. — Construction. — Provisos.—Repugnancy.—The rule that a proviso governs an antecedent repugnant provision in a statute, is a practical one, to be used only where all other methods of interpretation fail. p. 190.</p> <p>14. Same.—Repealing Clauses.—General.—Construction where Special Provision Otherwise.—A general repealing clause in a statute does not govern a special provision in the statute, providing that -certain laws on the same subject shall not be repealed thereby, p. 191.</p>

<p>1. Pleading. — Complaint.—Negligence.—Sending Reckless Boy on Unruly Horse on Errand.—Notice.—It is not necessary for a complaint against a father for negligence in sending his son, known to be a reckless rider, upon a horse known to be unruly, to show the father’s notice of a propensity of such horse for running against carriages in the highway, p. 196.</p> <p>2. Negligence.—Reckless Riding.—Master and Servant.—It is negligence for a father to send,, upon the public highway, his young, weak and reckless-riding son upon an unruly horse to carry a message, p. 197.</p> <p>3. Same.—Proximate Cause.—Reckless Riding.—A father’s negligence in sending his weak, reckless-riding son upon an unruly horse upon the public highway to carry a message, is the proximate cause of personal injury to plaintiff caused by such son’s running such horse into plaintiff’s carriage, p. 197.</p> <p>4. Same.—Anticipation of Particular Injury.—To constitute actionable negligence it is not necessary that the plaintiff should have anticipated the particular injury received, p. 197.</p> <p>5. Master and Servant. ■—Parent and Child. — Errands.—The father sustains the relation of master to his child whom he sends with a business message to a customer in the country, and who injures a person upon the public highway, p. 198.</p> <p>6. Negligence.—Highways.—Use of.—All persons have an equal right to use the public highways, but each person’s use thereof must be consistent with the rights and safety of others using the same. p. 199.</p> <p>7. Parent and Child. — Master and Servant. — Principal and Agent.—Torts of Child.—Liability.—A parent, as such, is not liable for the torts of his child, but he may be liable in the relationship of master or principal, p. 199.</p> <p>8. Same.—Negligence.—Running Horse on Highway.—Evidence. —Evidence showing that a father who sent his reckless boy to carry a message on the highway, and that such son recklessly whipped his horse to full speed causing it to run against plaintiff’s buggy, thereby injuring plaintiff, supports a verdict for plaintiff, p. 200.</p> <p>9. Appeal. — Record. — Bill of Exceptions. — Contradictions. — Which Controls.—Where the order-book entry and the bill of exceptions contradict each other, the order-book entry controls. p. 202.</p> <p>10. Trial.—Verdict.—Transcribing.—Duties of Parties.—Appeal and Error.—Where a verdict is alleged to be defective, it is the duty of the complaining party to have it literally copied into the order-bo.ok, .and, failing in that, he cannot present the question on appeal, since the record showing the form of the verdict is conclusive on appeal, p. 202.</p> <p>11. Same.—Instructions.—Redundant.—Refusal to Give.—Where the jury is fully instructed, the trial court should refuse to give additional instructions, p. 203.</p> <p>12. Same.—Instructions.—Limiting Evidence on Issues.—An instruction that the jury should determine the contested question from all the evidence is not bad where such instruction later limits the evidence to that which is releyant to such question, p. 203.</p> <p>13. Evidence.—Reckless Riding.—Notice.—Negligence.—Master and Servant.—Evidence of prior reckless riding is admissible on the question of notice of the son’s recklessness and ineompeteney, in an action for negligence against the father because of injuries received by the plaintiff by reason of a collision caused by such boy. p. 204.</p>

Erom St. Joseph Circuit Court; Walter A. Funk, Judge. Condemnation proceeding by the New Jersey, Indiana & Illinois Railroad Company against Joseph D. Tutt and others. Erom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>1. Partnership.—Dissolution.—Notice.—It is not necessary for a partner, upon dissolution of the partnership, to give actual, personal notice to customers, in order to escape liability for subsequent dealings by the continuing partner, mere* knowledge of the dissolution, or the legal equivalent of such knowledge, being sufficient notice, p. 221.</p> <p>2. Same.-—Dissolution.—Notice.—Principal and Agent.—Notice to the general agent of a buying partnership of the dissolution of the selling partnership is sufficient notice to such buying partnership of such dissolution, p. 222.</p> <p>3. Same.—Subsequent Dealings with Single Partner.—Effect.— Where the plaintiffs traded with a partnership for a certain period, after which one member continued such trading in his •own name, the plaintiffs are required, in order to hold the former partner liable, where he ceases to participate in the business, to make inquiry as to whether such partnership still exists, p. 222.</p> <p>4. Pleading. — Complaint. ■—■ Sufficiency.—Amendment.—Appeal and Error.—Where the complaint appears bad, and a reversal is ordered upon other grounds, the Supreme Court may direct that the demurrer thereto be sustained with leave to amend. p. 222.</p>

<p>1. Pleading. — Complaint. — Master and Servant.—Employers’ Liability Act.—A complaint showing that the servant was injured while acting under the orders of the master’s foreman, but which fails to show that it was such foreman’s negligence which caused the injury, does not state a cause of action under subdivision 2 of section 1 of the employers’ liabilty act (§7083 Burns 1901, Acts 1893, p. 294). p. 227.</p> <p>2. Same. — Complaint.-—Master and Servant.—Employers’ Liability Act.—A complaint by the servant against the master for injuries received because of the negligence of a person performing the master’s duty must show that such person’s negligence occurred while in the performance of the master’s duty. p. 227.</p> <p>3. Master and Servant.—Employers’ Liability Act.—Vice-Principals.—The latter part of subdivision four of §7083 Burns 1901, Acts 1893, p. 294, §1, does not increase the class of vice-principals existing at the common law, and limits the right of recovery on account of a vice-principal’s negligence to persons injured obeying the orders of a superior with authority to direct. p. 227.</p> <p>4. Pleading. — Complaint.—Statutory Cause.—Employers’ Lia■bility Act—A. complaint for negligence under subdivision 4 of section 1 of the employers’ liability act (§7083 Burns 1901, Acts 1893, p. 294) must show that the plaintiff clearly comes within the provisions thereof.' p. 227.</p> <p>5. Same. — Complaint. — Negative Pregnant. — Negligence.—A complaint alleging that the master “did not provide means by which the entrance of steam and hot water into the boiler could be securely excluded,” implies that some means ’were supplied, and the complaint should show wherein the means used were defective, p. 228.</p> <p>6. Same. — Complaint.—Negligence.—Master and Servant.—Notice of Defects.—A complaint by the servant showing that the master ordered him to enter a boiler, connected with two other boilers, to do certain work without notifying him “of the danger to be incurred by the sudden entrance of steam, and hot water while he was therein,” is bad, since it fails to show the need or useful purpose of such notice, and fails to show that either steam or hot water was in the connecting boilers when he entered. p. 228.</p> <p>7. Pleading.—Complaint—Master and Servant.—Defective Ways and Works.—A complaint by the servant showing that the master made “no effort to shut off and exclude the steam and hot water from the boiler” in which the servant was working, is bad, since it implies that some provision was made for shutting off such steam and water, and fails to show the acts of negligence in failing to use the means provided, p. 229.</p> <p>8. Same. — Complaint.—Negligence.—Fellow Servants.—A complaint showing that the master ordered the servant to work in a boiler, and that while working therein a fellow servant negligently caused hot- water and steam to be forced through a pipe into such boiler, thereby scalding such servant, is bad, since the master is not liable for the negligence of such fellow servant, p. 229.</p> <p>9. Master and Servant.—Works, Ways and Machinery.—Fellow Servants.—It is the duty of the master to furnish reasonably safe ways, works and machinery for the servant; and the negligent use of same by a fellow servant does not create a further liability, p. 230.</p>

<p>1. Nuisances. — What are. — Ordinances Defining. — Municipal Corporations.—Municipal corporations, under §4357 Burns 1901, §3333 R. S. 1881, giving the boards of trustees of incorporated towns the power to declare what shall constitute nuisances therein, and power to abate the same, cannot declare that to be a nuisance which by nature is not and cannot become one. p. 232.</p> <p>2. Nuisances.—What are, at Common Law.—At the common law anything offensive to the sight, smell or hearing, erected or carried on in or near a public place, to the annoyance of persons having the right to use such public place, is a nuisance, p. 232.</p> <p>3. Same.—Ordinances Defining.—Doubtful Cases.—Under a general grant! to a municipal corporation to define what are nuisances, it may include nuisances per se and also things which may be nuisances but about which honest differences of opinion may be held. p. 233.</p> <p>4. Same.—Hogs.—Ordinances.—Sufficiency.—A town ordinance prohibiting the keeping of hogs in a pen within the town or within 200 feet of an alley or street therein, sufficiently shows that such keeping was denounced as a nuisance, though it did not in terms so state, the purpose thereof being apparent, p. 233.</p> <p>5. Police ■ Power. — Delegation of. — Towns. — Ordinances. — Health.—The exercise of the police power, which may be delegated to towns, rests, except as limited by the Constitution, with the legislature, and its action therein may not be controlled by the courts, p. 233.</p> <p>6. Same.—Ordinances.—Health.—Hogs.—An ordinance prohibiting the keeping of hogs in a pen within a town when within 200 feet of a street or alley thereof, is an exercise of the police power in relation to the public health, p. 234.</p> <p>7. Same.—-Health. — Ordinances.—Reasonableness. — A town health ordinance authorized by the legislature as within the police power, and not prohibited by the Constitution, cannot be assailed on the ground that it is unreasonable, p. 234.</p> <p>8. Same.—General Grant of, to Towns.—Ordinances.—Validity. —Where the legislature delegates, in general terms, the exercise of its police power to towns, their ordinances exercising such power should not be declared invalid unless plainly in violation of some constitutional right, p. 234.</p> <p>9. Same.—Hogs.—Ordinances.—Municipal Corporations.—Towns may by ordinance, under §4357 Burns 1901, §3333 R. S. 1881, prevent the keeping of hogs within their limits when within 200 feet of their streets and alleys, p. 235.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Ooudemnatiou proceeding by tbe Indianapolis & Cincinnati Traction Company against Thomas W. Larrabee and wife. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §133111 Burns 1901, Acts 1901, p. 590.

Erom Laporte Superior Court; Gha/rles H. Truesdell, Special Judge. Action by Ered Smith against the Inland Steel Company. ' Erom a judgment on a verdict for plaintiff for $10,000, defendant appeals. Appealed from Appellate Court under cl. 3, §133/Tj Burns 1901, Acts 1901, p. 565, §10. (As to right of appeal, see Indianapolis, ele., B. Go. v. Waldington, 1691 Ind. —.)

Erom St. Joseph Circuit Court; Walter A. Funic, Judge. Annexation proceeding by the City of Mishawaka, against which William Ernsperger and others remonstrate. Erom an order granting the petition, remonstrants appeal. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.,

From Morgan Circuit Court; Joseph W. Williams, Judge, pro tern. Action by Arthur W. Doty against the New Castle Bridge Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court (see 37 Ind. App. 84) under cl. 1, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Statutes. — Prospective Operation of. — Municipal Corporations.—The act of 1893 (Acts 1893, p. 65, §§3905-4054 Burns 1894), governing cities having a population of more than 50,000 and less than 100,000, was intended to operate prospectively only; and any city subsequently attaining such population will come under the operation of such act. p. 274.</p> <p>2. Constitutional Law. — Statutes. — Local. — General.—Any law which applies generally to a designated class of cases is not a special or local law, the Constitution requiring only that laws shall operate the same in all parts of the State under the same circumstances, p. 274.</p> <p>3. Constitutional Law.—Statutes.—General.—Cities.—The act of 1893 (Acts 1893, p. 65, §§3905-4054 Burns 1894), governing cities having a population of not less than 50,000 nor more than 100,000, does not violate §22, article 4, of the Constitution, prohibiting the passage of local or special laws in certain cases, p. 274.</p> <p>4. Same. — Statutes. — General. — Local. — Judicial Question.— Whether a statute is general or local is to be determined not by the form of the language used, but by the application of the law. p. 275.</p> <p>5. Same.—Statutes.—General.—Application.—A statute is not necessarily unconstitutional because, at a particular time, it applies only to one city. p. 275.</p> <p>6. Same.—Changes of Venue.—Local Laws.—Municipal Corporations.—Section 114 of the act of 1893 (Acts 1893, p. 65, §4018 Burns 1901), providing that no change of venue shall be taken from the police judge, does not conflict with §22, article 4, of the Constitution, providing that no local or special law shall ever be passed providing for change of venue in civil or criminal cases, since such act is general, and since the legislature has the right to classify cities and provide for their local inferior courts, p. 275.</p> <p>7. Municipal Corporations. — Ordinances. — Publication.—Signatures.—-Intoxicating Liquors.—The signature of the presiding officer of the council is not necessary in the publication of a city ordinance prohibiting the retailing of intoxicating liquors within certain limits, p. 275.</p>

Erom Montgomery Circuit Court; Jere West, Judge. Action by Minnie E. Williams, as administratrix of tbe estate of Erancis Ora Williams, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment on á verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court under §1337u Burns 1901, Acts 1901, p. 590.

<p>From Superior Court of Marion County (70,093) ; Vinson Carter, Judge.</p> <p>Prosecution by tbe City of Indianapolis against Addison E. Miller and others. From a judgment for defendants, plaintiff appeals.</p>

From Miami Circuit Court; J oseph N. Tillett, Judge. Drainage proceedings by David Clemans and others, against which John Hatch and others remonstrate. From a judgment for defendants, plaintiffs appeal.

<p>1. Officers. — Clerk of the Circuit Court. — Title. — Names.— Constitutional Law.—The office of “clerk of the circuit court” is created by article 6, §2, of the Constitution, the office of “county clerk” being unknown to the Constitution or to the laws of the State, p. 296.</p> <p>2. Statutes.—Construction.—Where the language of a statute is clear and certain', construction cannot be resorted to for the purpose of supplying supposed defects or omissions, p. 296.</p> <p>3. Same. — Construction. — Misnomer.—Misdescription—Misnomer or misdescription, where the essence of a statute, is fatal, unless the words used are so clear and accurate as to refer only to the subject intended, p. 297.</p> <p>4. Same. — Officers. — Clerk of the Circuit Court, —r “County Clerk.”—The act of 1901 (Acts 1901, p. 411, §7574b Burns 1901), providing that the term of the office of “county clerk * * * shall begin on the first day of January next following the term of the present incumbent,” does not affect the office of “clerk of the circuit court.” p. 297. 5. Statutes.—Construction by Subsequent Legislature.—In cases oí doubt and uncertainty as to'the expressed meaning of a statute, a construction thereof by a subsequent legislature is entitled to respectful consideration and may be given some weight by the courts, p. 297.</p>

<p>1. Criminal Law.—Former Jeopardy.—How Presented.—Where the question of defendant’s former jeopardy is once properly presented in a criminal case, it need not be repeated in order that defendant may become entitled to his rights thereunder. p. 808.</p> <p>2. Constitutional Law.—Criminal Law.—Former Jeopardy.— Section 14, article 1, of the Constitution denies to the courts the right to place any accused person twice in jeopardy for the same offense, p. 309.</p> <p>3. Criminal Law.—Jeopardy.—When Attaches.—Jeopardy attache's, in a criminal case, when the defendant, legally charged with the commission of a crime, is given in charge of a lawfully impaneled and sworn jury for trial, in a court having jurisdiction to try the offense charged, pp. 309, 312, 319.</p> <p>4. Constitutional Law.—Judicial Construction of Provision.— Adoption of Provision in Subsequent Constitution.—Where the Supreme Court has placed a construction upon a provision of the Constitution, the subsequent adoption of such provision in a new Constitution imports that the framers adopted it impressed with such construction, p. 310.</p> <p>5. Criminal Law.—Jury.—Qualifications.—Relationship to Defendant.—Husband and Wife.—-A juror, remotely related to defendant’s husband, is not related to defendant by marriage, after the death of such husband, and is not subject to a challenge for cause on account thereof under §1862 Burns 1901, cl. 4, §1793 R. S. 1881. p. 318.</p> <p>6. Appeal. — Criminal Law.—Rendering Judgment.—Homicide. —Where the record on appeal affirmatively shows that defendant in a homicide case had been in former jeopardy for the offense charged, the Supreme Court will render a final judgment for defendant’s discharge, p. 320.</p>

<p>1. Street Railroads.—Refusal to Perform Duty.—Performance by Others.—A street railroad company may not complain because the mover of a house temporarily, and with due care, moved some of its wires, so that a building might pass, where a city ordinance required such company to remove such wires and it refused to do so. p. 324.</p> <p>2. Municipal Corporations. — Streets. — Control. — Statutes.— Section 267 of the act of 1905 (Acts 1905, p. 219, §3754 Burns 1905), being substantially a reenactment of the prior statutes, conferring upon cities and towns the exclusive control over their streets, must be considered as having been enacted in view of the judicial construction of such prior statutes, p. 324.</p> <p>3. Nuisances.—Moving Houses along Streets.-—Municipal Corporations.—The moving of a house along the streets of a city is not necessarily a nuisance, where done under municipal authority, with proper despatch, and where private rights are not unreasonably invaded, p. 326.</p> <p>4. Same.—License.—Special Damages.—The moving of a house along a street, where done under municipal license, with despatch and without unreasonable invasion of private right, does not give a right of action in damages, p. 328.</p> <p>5. Municipal Corporations. —• Streets. — Control.—Supervision by Courts.—The courts have no right to interfere with a city’s exclusive, statutory control over its streets, unless some statute or some general principle of law affirmatively sanctions such right, p. 328.</p> <p>6. Same. — Streets.—Control.—Ordinances.—Legislative Acts.— Judicial Control of.—The passage of an ordinance regulating the use of a street is a purely legislative act, and is not subject to judicial control, p. 328.</p> <p>7. Same.—Streets.—Occupancy by Street Railroad Company.— Nuisances.—The occupancy of a street, without permission, by a street railroad company, constitutes a nuisance, p. 329.</p> <p>8. Same. — Streets.—Control.—Street Railroads.—A municipal corporation has exclusive control over its streets, and may regulate a street railroad company’s use thereof, though it has granted a franchise to such company to use such streets, p. 329.</p> <p>9. Municipal Corporations.—Streets—Moving Houses Along.— Ordinances.—Police Power.—Cities have the right, under their police power, to regulate, by ordinance, the moving of houses, owned by individuals, on and over their streets, p. 331.</p> <p>10. Police Power.—Source of.—Maxims. — The principle expressed by the maxim, “sic utere tuo ut alienum non laedas,” is the source of the police power; and the state’s right to exercise such power is an incident to ownership, p. 331.</p> <p>11. Municipal Corporations. — Ordinances. — Statutes.—Police Power.—Constitutional Law.—Statutes or ordinances passed in the exercise of the police power, which place reasonable burdens or regulations upon a particular business, are not for such reason unconstitutional, p. 332.</p> <p>12. Eminent Domain.'—Police Power.—Streets.—Street Rail-, roads.—Raising Wires.—Moving Houses.—Compelling a street railroad company, by ordinance, temporarily to raise its wires to permit a house to be moved thereunder, is not a taking of property by eminent domain, though expense results, p. 332.</p> <p>13. Street Railroads.—Contracts.—Police Power.—Street railroad companies enter into their contracts with municipalities, and hold their property, subject to the continuing right of the public to exercise fully the police power, p. 333.</p>

From Grant Circuit Court; H. J. Paulas, Judge. Action by Frank Simons, by his next friend, William Simons, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals under §133'Tj Burns 1901, cl. 3, Acts 1901, p. 565, §10.

Erom Greene Circuit Court; Orion B. Harris, Judge. Action by Ered N. Eletcher, as administrator of the estate of Alonzo Watts, deceased, against the Perry, Matthews, Buskirk Stone Company. Erom a judgment on a verdict for plaintiff for $6,500, defendant appeals.

<p>1. Habeas Corpus.—Motion to Quash.—A motion to quash the writ of habeas corpus tests the sufficiency of the application therefor, p. 355.</p> <p>2. Judgment. — Divorce. — Binding Force, in Sister State.—A decree divorcing the parents and providing for the custody of the children, rendered by a sister-state court, having jurisdiction of the subject-matter and of the parties, will be given full force and effect in the courts of this State, pp. 356, 359.</p> <p>3. Pleading. —■ Complaint. — Sister-State Judgment. — Jurisdiction.—A complaint founded upon rights growing out of a sister-state decree must show that the court rendering same had jurisdiction of the subject-matter and the parties, p. 357.</p> <p>4. Same. — Complaint. — Sister-State Judgment. — Exhibits. — —While it is not necessary to attach a sister-state decree as an exhibit to a complaint founded upon rights determined in-such decree, still, such exhibit, in the absence of an allegation of the jurisdiction of such court, might enable the court to determine that such sister-state court had general jurisdiction, and therefore jurisdiction of the subject-matter of such suit, p. 358.</p> <p>5. Same. — Complaint.—Sister-State Judgment.—Allegations of Jurisdiction.—A complaint asserting rights founded upon the decree of a sister-state court of special jurisdiction should allege that such judgment was “duly” rendered or given, p. 359.</p> <p>6. Habeas Corpus.—Collateral Attach.—Custody of Child.—In a habeas corpus. proceeding, the plaintiff, having the right of custody of an infant for one week out of every three, by virtue of a sister-state decree, cannot succeed while demanding the unconditional release of such infant, p. 359.</p>

From Owen Circuit Court; Joseph W. Williams, Judge. Condemnation proceeding by the Indianapolis & Louisville Railway Company against the Southern Indiana Railway Company and another. From an interlocutory decree for plaintiff, defendants appeal.

<p>From Porter Circuit Court; Willis O. McMahan, Judge.</p> <p>Action by David T. Brough against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1337u Bums 1901, Acts 1901, p. 590.</p>

<p>1. Mandamus.—Nature of Writ.—-Mandamus is a common-law action to compel an inferior tribunal, corporation, board or' person to perform a clear, positive, common-law or statutory duty. p. 386.</p> <p>2. Schools.—Free Transportation for Pupils.—Township trustees are under no legal duty to furnish free transportation to school children, to and from the public schools, p. 387.</p> <p>3. Statutes.—Specific Description Followed, by General.—Where a statute contains specific descriptions followed by words of general import, such general words should be -restricted to things of like character to those specifically enumerated, p. 389.</p> <p>4. Schools. — Taxes.—Special School.—Purposes.—The statute (§5953 Burns 1901, §4467 E. S. 1881), authorizing school trustees to levy a special school tax for the construction and repairing of school houses, providing furniture, apparatus and fuel, and for “other necessary expenses,” does-not authorize such trustees to pay for transportation of the school children to and from the schools, p. 389.</p> <p>5. Same.—Transportation of Pupils.—Orders of County Superintendents.—Validity.—In the absence of a statute authorizing trustees to provide transportation to their pupils to and from the schools, a decision of the county superintendent that such trustees should do so, is void. p. 390.</p>

<p>1. Jurisdiction.—Railroads.—Killing Stock.—The circuit court has original jurisdiction of an action against a railroad company for killing two steers of the value of $90, though they were struck 200 feet apart, one being instantly killed and the other mortally wounded, p. 392.</p> <p>2. Railroads. — Private Farm Crossings.—Killing Stock.—Railroad companies, in the absence of negligence, are not liable for the killing of animals which enter upon their tracks through gates erected by farmers at their private farm crossings, p. 392.</p> <p>3. Same.—Fences.—Killing Stock.—Entry.—A railroad company is not liable, in the absence of negligence, for its killing of animals which entered upon its track where the same was not fenced, where they afterwards crossed other lands; and again entered upon the track through a gate at a private farm crossing. Jeffersonville, etc., R. Co. v. Lyons, 72 Ind. 107, and Louisville, etc., R. Co. v. Eteler, 3 Ind. App. 562, distinguished, p. 395.</p> <p>4. Railroads.—Negligence.—Killing Stock.—The negligence for which a railroad company is liable, under §5322 Burns 1901, Acts 1885, p. 148, §3, for killing stock, is that of the common law. p. 396.</p> <p>5. Same.—Killing Stock.—Negligence.—Special Findings.—Special findings showing only that the animals killed could have been seen by the railroad company’s engineer for 800 feet and that he did see them when 400 feet away and blew the whistle but failed to stop the train, do not show negligence, p. 396.</p> <p>6. Trial.—Special Findings.—Omissions.—The omission of an alleged fact from the special findings is a finding against the party having the burden of proof, that such fact does not exist, p. 397.</p> <p>7. Railroads.—Killing Stock.—Negligence.—Question for Jury. —Whether a railroad company is guilty of negligence in failing to stop -a train, where the engineer sees cattle upon the track 400 feet ahead, is a question of fact for the jury. p. 397.</p>

Erom Olay Circuit Court; Presley O. Golliver, Judge. Action by Walter K. Pritchard, as administrator of the estate of Walter MeAvoy, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment on a verdict for plaintiff for $1,000, defendant appeals. Transferred from Appellate Court (39 Ind. App. 701) under §1337o Burns 1901, Acts 1901, p. 565, §15.

<p>1. Municipal Corporations. — Street Assessments. — Personal Judgment.—A personal judgment may be rendered, under §4294 Burns 1901, Acts 1899, p. 63, §2, against a railroad company, whose property was assessed for street improvements, p. 421.</p> <p>2. _ Same.—Street Assessments.—Attorneys’ Fees.—Constitutional Law.—The act of 1899 (Acts 1899, p. 63, §2, §4294 Burns 1901), providing for the recovery of plaintiff’s attorneys’ fees, in cases for the collection of street assessments, is constitutional. p. 422.</p> <p>3. Trial.—Special Findings.—Conclusions of Law.—Motion to Modify Judgment.—New Trial.—Where the judgment follows the special findings and the conclusions of law thereon, a motion for a new trial, and not a motion to modify such judgment, is the proper practice, p. 423.</p> <p>4. Municipal Coepoeations. — Street Assessments. — Property Liable.—Railroads.—A railroad company owning a right of way abutting upon a street is subject to an assessment for the improvement of such street, p. 424.</p> <p>5. Same.—Ordinances.—Street Assessments.—Methods.—A mu- • nicipal ordinance directing the cost of a street improvement to be made “per lineal foot” according to the laws now in force, does not prevent the assessment from being according to benefits; and if it did, the proceedings would not be invalid, p. 424.</p> <p>6. Same.—Street Assessments.—Procedure.—Under the act of 1889 (Acts 1889, p. 237) all property within the street improvement taxing district pmma facie received special benefits, but the municipal authorities had the power to change the uniform assessment rule upon objection; and all owners had a right to a hearing on such assessment, p. 425.</p> <p>7. Same. — Street Assessments. — Collateral Attack. — Where street improvement assessments are made, without objection, by the front-foot method, such assessment is not subject to a collateral attack, p. 425.</p> <p>8. Same.—Street Assessments.—Collection.—Under §4294 Burns 1901, Acts 1899, p. 63, §2, the contractor, or his assignee, of a street improvement may collect at once the full amount of afrontager’s assessment, unless the frontager files a written waiver as provided in such section, p. 425.</p> <p>9. Same.—Street Assessments.—Notice.—Constitutional Law.— The board of trustees of a town have jurisdiction over the persons and property of frontagers, by virtue of the notice given as provided by §4294 Burns 1901, Acts 1899, p. 63, §2, to render valid the street assessments made by them. p. 426.</p> <p>10. Same. — Street Assessments. — Engineer’s Report. — Subsequent Report.—Where the engineer made a report of the property benefited by a street improvement as required by §4293 Burns 1901, Acts 1889, p. 237, §6, but such report imperfectly describes the property, a subsequent report, with correct descriptions, approved, after notice given and without objection, by the town board, constitutes a valid assessment, p. 426.</p> <p>11. Same.—Street Assessments.—Engineer’s Reports.—Time of Adoption.—The town board’s adoption of the report of the engineer, as to the proper assessment of frontagers’ property for a street improvement, as required by §4293 Burns 1901, Acts 1889, p. 237, §6, on the same night such report was made, does not render it an invalid assessment, p. 428.</p> <p>12. Same.—Street Assessments.—Constitutional Law.—The act of 1889 (Acts 1889, p. 237), providing the method of street improvements and the payment therefor, and the acts amendatory thereof and supplemental thereto (Acts 1891, p. 323, Acts 1893, p. 283, Acts 1899, pp. 8, 63, 411) do not violate either the federal or state Constitution, p. 428.</p>

<p>1. Appeal. — Bills of Exceptions. — When Record Proper Controls.—Statements made in a bill of exceptions, when properly a part of the bill, control improper record statements thereof; but in matters properly in the record and improperly in such bill, the record proper controls, p. 430.</p> <p>2. Same.—Bills of Exceptions.—Leave for, and Time of Filing. —How Shown.—Leave for filing a bill of exceptions after term, and the filing thereof and date of filing, must be shown by a record entry, and cannot be shown by recitals in the bill, p. 431.</p> <p>3. Appeal.—Judgment.—Motions for New Trial.—Motions in Arrest.—How Made Part of Record.—Judgments, the dates of rendition, motions for a new trial, motions in arrest of judgment, the rulings thereon, and exceptions thereto are parts of the record proper, and canno't be brought into the record by a bill of exceptions, p. 432.</p> <p>4. Same.—Bills of Exceptions.—Time for Filing.—Where the record shows that on June 25, 90 days were given in which to file bills of exceptions, and they were filed September 24, such bills were not filed within the time. p. 432.</p> <p>5. Same.—Bills of Exceptions.—Presentation to Judge.—Filing. —Where bills of exceptions show that they were presented to the judge for his signature before the expiration of the time given for filing, such bills, though filed after the expiration of the time, are parts of the record, p. 432.</p> <p>6. Railroads.—Postal Clerks.—Duties Toward.—Railroad companies owe the same duties to postal clerks as to regular passengers. p. 433.</p> <p>7. Evidence.—Postal Clerks.—How Shown to Be.—Proof that a railroad company had been regularly carrying the mail under some arrangement with the United States, and that the decedent had been carried as a postal clerk on the train, sufficiently shows that such company owed to him the same duty as to a passenger, p. 434.</p> <p>8. Appeal.—Exceptions.—Necessity of.—In order to present any question, on appeal, a proper exception must be reserved to the trial court’s ruling, p. 435.</p> <p>9. New Trial.—Misconduct of Counsel.—Argument to Jury.— Practice.—Where counsel makes objectionable remarks in the argument to the jury, and the court promptly, upon objection, admonishes the jury not to consider such statements, there is no cause for a new trial, p. 435.</p> <p>10. Evidence.-—Promotion.—Postal Clerks. — In an action of damages for the death of a postal clerk, evidence that before his death he had been assigned for promotion is admissible, p. 436.</p> <p>11. Same.—Objections.—Must Be Specific.—Appeal.—Objections to evidence because “incompetent, irrelevant, and immaterial and does not tend to prove any issue in the case,” or that “it is not applicable to any issue in the case and does not tend to prove the earning capacity of the decedent in this case,” are too indefinite to present any question, p. 437.</p> <p>12. Appeal.—Evidence.—Changing Objections on Appeal.—Parties, on appeal, cannot shift the grounds of objection to evidence made on the trial of the case below, p. 437.</p> <p>13. Damages.—Excessive.—The Supreme Court will not disturb a verdict on the ground of excessive damages, unless it appears that the jury acted from prejudice, partiality or corruption, p. 438.</p>

From Cass Circuit Court; T. F. Palmer, Special Judge. Action by George W. Lightheiser against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for $10,000 on a verdict for $12,000, a remittitur being filed for $2,000, defendant appeals.

<p>1. Appeal. — Assignments of Errors. — Abstract Propositions. Mere abstract propositions of law, as that a statute is in derogation of certain constitutional provisions, cannot, where unconnected with any ruling of the trial court, be independently assigned as error on appeal, p. 471.</p> <p>2. Appeal.—Law of the Case.—Judgment.—Where a paragraph of complaint was held good on a prior appeal, such decision is the law of the case through its subsequent stages, p. 472.</p> <p>3. Same.—Briefs.—Waiver.—Alleged errors not discussed nor supported by statement or authorities in appellant’s brief, are waived, p. 472.</p> <p>4. Trial.—Instructions.—Issues.—Negligence.—An instruction, in a personal injury case, outlining the issues and stating that if the plaintiff has proved same by a preponderance of the evidence, he should recover, unless the preponderance of the evidence shows that he was guilty of contributory negligence, is not erroneous, p. 473.</p> <p>5. Same.—Instructions.—Contributory Negligence.—An instruction, in a personal injury case, that contributory negligence is a defense and provable under the general denial, and that if such contributory negligence had been established by a preponderance of the evidence, without regard to the source of such evidence, the verdict should be for defendant, is correct, p. 473.</p> <p>6. Same. — Instructions. — Railroads. — Orders.—An instruction that the plaintiff, a railroad freight conductor, could not be bound by an order, without knowledge thereof, and that mere proof of the issuance of an order would not defeat his right of recovery, is not a concession of plaintiff’s right of recovery, when considered with the other ordinary instructions in such a case. p. 473.</p> <p>7. Same. — Instructions. — Sudden Perils.-—Negligence.—An instruction as to the duties of a railroad freight conductor in the case of a sudden peril, will not be condemned on 'the ground that he was responsible for such peril, where the proof shows otherwise, p. 474.</p> <p>8. Same, —Instructions. ■—• Railroad Corporation. — Evidence.— Admissions.—An instfucriunTliAt Ruder the pleadings the existence of the defendant railroad corporation was admitted anu needed no affirmative proof", is cdiffyyt. where such company entered a general appearance in the case. p. 474.</p> <p>9. Same. — Instructions.—Damages.—Elements.—An instruction that in estimating plaintiff’s damages, in a personal injury case, the jury should consider his loss of time from business, impairment of power to earn money, pain, past and future, disfigurement, and give him such sum as will compensate him for his injuries, considering all the facts in the case, is correct p. 475.</p> <p>10. Same.—Instructions.—Limiting to Evidence in Case.—An instruction stating the elements of damage, but not affirmatively confining the jury to the evidence in the case in estimating same, is not erroneous, the presumption being that jurors will confine themselves to the evidence, p. 475.</p> <p>11. Trial.—Instructions.—Peremptory.—A peremptory instruction for defendant, in a personal injury case, should be refused, where there is some evidence sustaining the material allegations of the complaint, p. 475.</p> <p>12. Same.—Instructions.—Failure to Use Brakes.—Railroads.— The refusal, in a personal injury case, to give an instruction that if the plaintiff, a railroad freight conductor, had a brake in the caboose with which he could have stopped the train, and he failed to use it, he cannot recover, is not error, where an answer to an interrogatory shows that the use of the brake would not have prevented the injury, p. 475.</p> <p>13. Same. — Instructions. — Too Inclusive. ■— Refusal.—It is not error to refuse to give an instruction, tendered by defendant, setting out the things necessary for plaintiff to prove, where it contains one thing not necessary for plaintiff to prove, p. 476.</p> <p>14. Appeal. — Instructions. — Evidence.—Briefs.—Where an instruction was refused, it is necessary for appellant to point out the evidence which would justify the trial court in giving same, the presumption being, in the absence of such showing, that such instruction was not applicable to the evidence in the case, p. 476.</p> <p>15. Trial.—Instructions.—Style of Caboose.—Defendant has no cause for complaint because the judge refused to instruct that the style of the caboose in which plaintiff was injured in a collision uiu iMv fancier defendant liable, where no claim was made that the sr,y>5 CÍ *he caboose constíwEeJ although a description of such caboose uí th*?-evidence was necessary to explain the collision, p. 477.</p> <p>16. Same.—Instructions.—Duplication Of.—Where a subject is already covered by an instruction, it is proper to refuse another covering the same point, p. 477.</p> <p>17. Same.—Instructions.—Outlining Duties of Court arid Jury.—• Discretion.—It is discretionary with the trial court to give or refuse an instruction reminding jurors of their oath and faithfully to perform their duty. p. 478.</p> <p>18. Same. — Instructions. — Employers’ Liability Act.—Application of.—Contracts.—It was harmless to refuse an instruction, in a personal injury case, that if the plaintiff, a railroad servant, was injured while working under a contract entered into prior to the enactment of the employers’ liability act, such' act could not apply to the case, where the interrogatories showed that his contract was made subsequently to the taking effect of such act. p. 478.</p> <p>19. Evidence.—Striking Out.—Motions.—Specific.—A motion to strike out an improper part of an answer of a witness should include such improper part only. p. 478.</p> <p>20. New Trial.—Misconduct of Court and Counsel.—Appeal.— Weighing Evidence.—Where, in a motion for a new trial, the charge of misconduct of the judge and of opposing counsel is supported by affidavit and denied by counter-affidavits, such facts being within the personal knowledge of'the judge, his decision on such question is final, p. 479.</p> <p>21. Same.—Misconduct of Jury.—How Shown.—Presumptions.— An affidavit of counsel, in the motion for a new trial, that a juror was guilty of improper conduct, cannot be considered unless the source of his information is revealed, the presumption being that he learned same from a juror, since a juror cannot himself be heard to impeach his verdict, p. 479.</p> <p>22. Master and Servant.—Employers’ Liability Act.—Railroads. —Engineers.—A servant of a railroad company, even though he be the conductor of the train on which he is injured, may recover, under §7083 Burns 1901, Acts 1893, p. 294, §1, for injuries received by reason of the negligence of another servant who has charge of an engine upon such railroad, p. 481.</p> <p>23. Same.—Conductors.—Engineers.—Employers’ Liability Act. —Contributory Negligence—A conductor, riding in the caboose of a freight-train, who is injured by the negligence of his engineer in backing into another train, which the conductor did not discover in time to save himself from the collision v- -- ~L ' of contnbn an¿ ^ entitled, under §7083 Burns 1901, Acts 1SSS, p 294, §1, to a recovery from the company, p. 482. '</p> <p>24. Constitutional Law.—Employers’ Liability Act.—Railroads. —As to railway operators, §7083 Burns 1901, Acts 1893, p. 294. §1, the employers’ liability act, is constitutional, p. 483.</p>

<p>1. Constitutional Law.—Employers’ Liability Act.—Railroads. ■ —Section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901), so far as it applies to railroads, is not in violation of the fourteenth amendment to the Constitution of the United States, or of any provision of the Constitution of this State, p. 484.</p> <p>2. Appeal. — Jurisdiction. — Supreme and Appellate Courts.— Transfer.—The jurisdiction of an appeal from- a judgment for' $2,945, in a personal injury case, even though the constitutionality of the employers’ liability act is questioned, is in the Appellate Court, and the Supreme Court will so transfer it, the' validity of such act being firmly settled, p. 485.</p>

<p>Erom Clay Circuit Court; Presley O. Golliver, Judge.</p> <p>Suit by John Q. Bryson against the Continental Olay & Mining Company. Erom an interlocutory order appointing a receiver, defendant appeals.</p>

From White Circuit Court; Charles W. Hanley, Special Judge. Action by the State of Indiana, on the relation of Gus Martin and others, against John R. Nelson, as trustee of West Point School Township. From a judgment for plaintiff, defendant appeals.

<p>1. Municipal Coepoeations.—Ordinances.—Intoxicating Liquors. —Exclusion from Residence Districts.—A city ordinance, defining the residence portion of the city, under §3541 Burns 1901, Acts 1895, p. 180, rendered prima facie unlawful the sale of liquors in such district; but whether such district was really a residence district was a question of fact in each case. p. 500.</p> <p>2. Intoxicating Liquoes.—Legislative Powers.—The legislature, except where restricted by the Constitution, has the exclusive control over the sales of intoxicating liquors.' p. 501.</p> <p>3. Same.—Municipal Corporations.—Delegation of Power to.—In the absence of constitutional inhibition, the legislature may delegate to municipal corporations the power to control, regulate and prohibit the liquor traffic, p. 502.</p> <p>4. Municipal Coepoeations. — Intoxicating Liquors. — General Delegation of Power to Regulate.—Under a general power to municipalities to regulate the liquor traffic, they may exclude such traffic from residence districts, p. 502.</p> <p>5. Same.—Ordinances Defining Residence Districts.—Intoxicating Liquors.—The act of 1905 (Acts 1905, p. 219, §53, §3477 Burns 1905), giving to municipal corporations the power to define the residence and business districts of a city in reference to the sales of liquors, makes an ordinance defining such districts conclusive upon the courts, p. 503.</p> <p>6. Pleading. — Answer. — Intoxicating Liquors.—Residence Districts.—Municipal Corporations.—Where defendant was prosecuted for the sale of liquors in a residence district, as ordained by the city council, an answer that his saloon was in the business district and not within the residence district, is insufficient, where it also concedes that the saloon was within the prohibited territory, p. 503.</p> <p>7. Municipal Coepoeations.—Defining Residence Districts.— Discretion.—Intoxicating Liquors.—Under §3477 Burns 1905, Acts 1905, p. 219, §53, cities have a very wide discretion in defining the boundaries of the business and residence districts of a city, as relates to the liquor traffic, p. 504.</p> <p>8. Same.—Police Power.—Discretion.—Judicial Inquiries.—Intoxicating Liquors.—Ordinances districting cities into residence and business districts, as respects the liquor traffic, are in the exercise of the police power; and they are subject to judicial inquiry only to determine whether they are impartial and reasonable. p. 505.</p> <p>9. Municipal Corporations.—■Business Districts.—Intoxicating Liquors.—An ordinance of the city of Greencastle defining the business district thereof, in respect to the liquor traffic, as bounded by the streets lying one square north, west, south, and two squares east of the public square, is reasonable and valid, p. 505.</p>

<p>1. Pleading. — Complaint.—Specific Allegations.—Mandamus.— Elections.—A petition in mandamus specifically showing that relator was not declared elected by the city canvassing board; that another person was declared elected, and that such other person duly qualified, shows that such person accepted the office and that he is an adverse claimant to relator, although there is a general allegation that such person never accepted such office nor made any claim thereto, p. 514.</p> <p>2. Elections. — Certificate of Election. — Evidence.—Collateral Attack.—A properly executed certificate of election is prima facie evidence of the holder’s election, in a direct attack on the validity of such election, and conclusive evidence thereof on a collateral attack, p. 515.</p> <p>3. Mandamus.—Quo Warranto.—Elections.—Remedies of Claimants.—Mandamus is not, but quo warranto is, a proper remedy on behalf of a claimant to a public office, who has not at least a prima fade right to such office, p. 516.</p> <p>4. Officers.—Eligibility.—When Attaches.—Elections.—The ineligibility of persons to hold a city office as prescribed by §3470 Burns 1905, Acts 1905, p. 219, §46, providing that no officer, employe, agent or servant of any corporation, firm, company or person holding or operating under a city franchise, or having any contract with the city, shall be eligible to a city office, refers to the time when the term of office begins and not to the time of the election to such office, p. 516.</p> <p>5. Same.—Ineligibility.—Notice to Voters.—The voters of a city are not presumed to take notice that a certain candidate held, at the time of the election, an office in a private corporation with which such city had some contractual relations which, if they existed at the time his term began, would render • him ineligible to hold the office, p. 1520.</p> <p>6. Officers. — Ineligibility. — Notice. — Before a candidate receiving a smaller number of votes than his opponent can successfully assert title to the office, he must show not only that his opponent was ineligible, but that such fact was known to the voters, and that they also knew the time of the beginning of the term. p. 520.</p> <p>7. Same.—Duty to Serve.—Persons elected to a public office, if eligible, are under a duty to serve, p. 520.</p> <p>8. Sam:e.—Ineligibility.—Removal of.—Rights of Voters to Presume.—Voters, in electing a candidate to a public office, have the right to assume that he will free himself from any disabilities before the beginning of his term. p. 521.</p>

<p>Erom Elkhart Circuit Court; James 8. Dodge, Judge.</p> <p>Suit by William E. Eeynolds against James H. Henderson. Erom an interlocutory order appointing a receiver, defendant appeals.</p>

<p>From Eulton Circuit Court; O. F. Montgomery, Special Judge.</p> <p>Drainage petition by Eoy E. Hart, against which Emmet H. Scott remonstrates. Erom a judgment for remonstrator, the petitioner appeals.</p>

<p>1. Fees and Salaries.—Constructive.—No fees are collectible by a public officer, unless there is a statute expressly authorizing same, and fixing the amount; and constructive fees are not allowable. p. 536.</p> <p>2. Same. — County Auditors. — Road Tax Lists. — Neither §6834 Bums 1901, Acts 1885, p. 202, requiring county auditors to procure and deliver road tax lists to township trustees, nor §§6521, 6522 Burns 1901, Acts 1895, p. 319, §§115, 116, specifying. the fees to be taxed by the auditor, and authorizing the taxing of the same fees as taxed under former laws, in cases of omission, authorize the county auditor to tax any fee to the township trustees for providing them with road tax lists, p. 537.</p> <p>3. Same.—Counties.—Payment.—Voluntary.—Mistakes of Law. —A payment to a county by township trustees for the procurement and delivery to them of road tax lists by the county auditor, is not voluntary under a mistake of law on the part of such townships, preventing a recovery thereof, since such townships did not make such payment nor consent thereto, p. 537.</p> <p>4. Counties.—Appropriations by Council.—When Failure of, a Defense.—The failure of a county council to appropriate money to repay township money unlawfully paid into the county treasury for the auditor’s procuring and furnishing to the township trustee the road tax lists, is no defense to an action therefor; but such failure to appropriate is a defense where the alleged obligation was incurred in violation of §5594el Bums 1901, Acts 1899, p. 343, §25, making void any contracts entered into by county officers, or agents, where the money to pay same had not been appropriated by such council, p. 538.</p>

<p>1. Appeal.—Supreme Court.—Jurisdiction.—Amount Involved.— An appeal does not lie to the Supreme Court from a judgment not exceeding $50, exclusive of interest and costs, unless the validity of a franchise, or municipal ordinance, or the constitutionality or proper construction of a statute, or a question of constitutional rights, is presented, p. 540.</p> <p>2. Coroners.—Inquests—Whether Judicial.—A county coroner, in holding an inquest under §7954 Burns 1901, §5878 R. S. 1881, providing that upon hearing of a dead person in his county, supposed to have died from violence or casualty, the coroner shall hold an inquest, does not act in a judicial capacity, p. 541.</p> <p>3. Pees and Salaries. — Coroners.—Inquests.—Presumptions.— The holding of an inquest by a coroner is prima facie evidence that he was warranted in so doing, but upon a hearing of his claim therefor, the question is whether he is justly entitled to an allowance for his services, p. 542.</p> <p>4. Coroners.—Inquests.—Right to Decide Upon Holding.—To justify a coroner in holding an inquest, under §7954 Burns 1901, §5878 R. S. 1881, there must be a reasonable suspicion that the decedent came to his death from “violence or casualty.” p. 543.</p> <p>5. Pees and Salaries. — Collection of. — Coroner’s Inquests.— Witnesses.—It is the duty of parties claiming fees due to them by virtue of services at a coroner’s inquest, to prosecute their own claims, p. 544.</p> <p>6. Appeal.—Judgment Under $50.—Statutes.—On appeal from a judgment in favor of the board of commissioners, in an action by the county coroner for fees for holding an inquest, only the construction of the statute in question, can be reviewed, p. 544.</p> <p>7. Same. — Judgment Under $50. •—• Statutes. — Construction. — Where the trial court could have reached the result, even though an erroneous one on the evidence, by entertaining the proper construction of the statute involved, the cause cannot be reversed on appeal, where the judgment did not exceed $50, exclusive of interest and costs, p. 545.</p> <p>8. Same.—Judgment Under $50.—Evidence.—Exclusion.—Where, on appeal, only the construction of a statute is involved, the exclusion .of evidence on the grounds that the questions were leading and because leave' had not been obtained to ask an original question on redirect examination, cannot be considered. p. 546.</p>

Erom Rush Circuit CourtM. Sparks, Judge. Suit by the Eirst Rational Bank 'of Connersville and another against John G. Griffis and others. Erom a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §1337] Burns 1901, subdv. 2, Acts 1901, p. 565, §10.

From Dekalb Circuit Court; Emmet A. Bratton, Judge. Action by the State of Indiana, on the relation of Rebecca Shenkj against Noah A. Lung and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §133lj Burns 1901, subd. 2, Acts 1901, p. 565, §10.

<p>1. Intoxicating Liquors. — Remonstrances. — Appeal. — Subsequent Remonstrances.-—-Where a remonstrance, under §7283i Burns 1901, Acts 1895, p. 248, §9, was filed against án applicant for license to retail intoxicating liquors, and he appealed from the order of the board of commissioners refusing such license, the remonstrants cannot defend in the circuit court on the ground that a remonstrance, under §7283i Burns 1905, Acts 1905, p. 7, against the traffic within such territory, was subsequently filed with such board and sustained, p. 561.</p> <p>2. Appeal.—Boards of Commissioners.—Questions Presented in Circuit Court.—Except the question of jurisdiction, no questions can be considered on appeal to the circuit court, that were not presented before the board of commissioners, p. 562.</p> <p>3. Intoxicating Liquors.—Remonstrants.—Substituting on Appeal.—Where a sole remonstrant contested, before the board of commissioners, an application for license to retail intoxicating liquors, another remonstrant cannot be substituted on appeal, p. 562.</p> <p>4. Same. ■— Remonstrances Against Traffic. — Effect.—A remonstrance, under §7283i Burns 1905, Acts 1905, p. 7, constitutes a defense against an application for license; and each applicant may contest the validity of same. p. 563.</p> <p>5. New Trial.—Trial on Wrong Theory.—Where a case is tried upon a wrong theory, a new trial will ordinarily be awarded, p. 564.</p>

<p>1. Constitutional Law. — Statutes.—Title.—Subject-Matter.— Under the constitutional provision (Art. 4, §19), providing that “every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title,” it is the subject, and not the matters connected therewith, that must be expressed in the title, p. 568.</p> <p>2. Same.—Statutes.—Title.—Subject.—How Expressed.—Under the constitutional provision (Art. 4, §19), providing that the subject of an act must be expressed in the title, it is sufficient if the subject be stated expressly, or if it be inferable from the details stated, p. 568.</p> <p>3. Same.—Statutes.—Title.—Subject.—Courts.—The act of 1907 (Acts 1907, p. 7), creating superior courts in the counties of Elkhart and St. Joseph, does not violate the constitutional pro- ■ vision (Art. 4, §19), providing that the title shall embrace but one subject which shall be stated therein, although it states some of the details of the procedure of such courts, such details being embraced in the one subject, p. 569.</p> <p>4. Same. — Statutes.—Title.—Purview.—Interpretation.—In the interpretation of the title of a statute, courts may look to the purview; and in interpreting the purview, courts may look to the title, p. 569.</p> <p>5. ShME.—Statutes.—Title.—Delusive.—Courts.—Creation of.— The title of the act of 1907 (Acts 1907, p. 7), creating superior courts for the counties of Elkhart and St. Joseph, is not false and delusive in violation of the constitutional provision (Art. 4, §19), requiring each act to have but one subject, and that such subject be expressed in the title, on the ground that such courts will have practically the same jurisdiction as the circuit courts in such counties, p. 569.</p> <p>6. Constitutional Law. — Statutes. — Title.—Interpretation.— The title to a statute will be interpreted so as to cover the purview, if the words used are capable of such interpretation under any meaning which they will bear. p. 569.</p> <p>"7. Same.—“Other” Courts.—Creation of.—■Words and Phrases.— The Constitution (Art. 7, §1), providing that “the judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may etsablish,” does not exclude the power to create courts having the same jurisdiction as the circuit courts, the word “other” meaning similar in kind as well as different, depending upon the particular context, pp. 570, 574.</p> <p>8. Same.—Circuit Courts.—Jurisdiction.—Under the constitutional provision (Art. 7, §8), providing that the circuit courts “shall have such civil and criminal jurisdiction as may be prescribed by law,” the legislature may define the jurisdiction of such circuit courts, p. 572.</p> <p>9. Same. —• Courts. ■—■ Kinds. — Jurisdiction. —■ Under the Constitution (Art. 7, §1), giving the legislature the power to create “other” courts than the circuit courts, the legislature may create civil courts with the same civil jurisdiction as such circuit courts, and criminal courts with the same criminal jurisdiction as such circuit courts, p. 574.</p> <p>10. Same.—Courts.—Supreme.—The Constitution (Art. 7, §1), providing that “the judicial power of the State shall be vested in a Supreme Court, in circuit courts,, and in such other courts as the General Assembly may establish,” gives no authority to the legislature to create “other” courts of the same jurisdiction as .the Supreme Court, since, in such case, the Supreme Court would not be “supreme.” p. 574.</p> <p>11. Same.—Statutes.—Prosecuting Attorneys.—Imposing Additional Duties Upon.—The act of 1907 (Acts 1907, p. 7), creating superior courts in the counties of Elkhart and St. Joseph, is not unconstitutional on the ground that it requires the prosecuting attorney for the district composed of the counties of Elkhart and Lagrange to prosecute for the State in the created Elkhart Superior Court, even though such prosecuting attorney may be a resident of Lagrange county, p. 575.</p> <p>12. Officers. — State. —• County. — Prosecuting Attorney. ■— The prosecuting attorney is a state and not a county officer, p. 575.</p> <p>13. Constitutional Law. — Creation of Superior Courts. — Increasing Salaries of Sheriffs and Clerks.—The act of 1907 (Acts 1907, p.-7), creating superior courts in Elkhart and St. Joseph counties, is not unconstitutional on the ground that it increases the salaries of the sheriffs and clerks of such counties, since it must be presumed that the increase was because of additional work required of such officers, p. 575.</p> <p>14. Same.—Fees and Salaries.—Special Acts.—Salaries of county officers may be provided by a special act. p. 575.</p> <p>15. Same.—Creation of Superior Courts.—Salaries of Judges.—' The act of 1907 (Acts 1907, p. 7), creating superior courts in the counties of Elkhart and St. Joseph, is not unconstitutional on the ground that the salary provided for the judge thereof shall not be less than the amount paid to the judge of the St. Joseph Circuit Court, it being the duty of the legislature to readjust the salaries when conditions change, p. 576.</p> <p>16. Same.—Creation of Superior Courts.—County Business.—The act of 1907 (Acts 1907, p. 7), creating superior courts in the counties of Elkhart and St. Joseph and requiring the boards of commissioners to provide the necessaries therefor, is not in conflict with the constitutional provision (Art. 4, §22), inhibiting the passage of a special act “regulating county and township business,” since the Constitution (Art. 7, §1), permits the creation of a court by special act, and the housing of such court is a necessary incident to its creation, p. 576.</p> <p>17. Courts.—Inherent Powers.—Necessaries.—Courts of general jurisdiction have the inherent right to cause to be provided the things essential to the proper carrying out of their duties, p. 577.</p> <p>18. Constitutional Law. — Statutes. — Special. — Courts. — Changes of Venue. — The third proviso of section eleven of the act of 1907 (Acts 1907, p. 7), providing for changes of venue from and to the circuit and superior courts in Elkhart and St. Joseph counties, is unconstitutional as special legislation. p. 578.</p> <p>19. Same.—Statutes.—Valid in Part.—Divisibility.—That a portion of an act is unconstitutional will not destroy the remainder thereof, if enough remains to be intelligently acted upon, and if the courts think the legislature would have passed it regardless of the invalid part. p. 579.</p> <p>20. Same. — Statutes. —Partly Invalid. — Courts. — Changes of Venue.—The act of 1907 (Acts 1907, p. 7), creating superior courts in Elkhart and St. Joseph counties and providing for changes of venue in such courts, is divisible, the provisions for changes of venue having no necessary .connection with the remainder of the act. p. 580.</p> <p>21. Constitutional Law. — Statutes. — Divisibility. — Courts.— Appeals.—The act of 1907 (Acts 1907,¡ p. 7), creating superior courts in Elkhart and St. Joseph counties and providing for appeals to the Elkhart Superior Court, may be sustained, even though such provision for appeals be unconstitutional as special legislation, the act being divisible, p. 581.</p>

<p>1. Drains.—Remonstrance.—Amendments.—The courts have the right to permit amendments to drainage remonstrances at any time before the expiration of the time for filing same, but cannot afterwards permit amendments so as to present new grounds or make an insufficient remonstrance good. p. 584</p> <p>2. Same.—Remonstrance.-^Amendments.—A remonstrance, timely filed, which tenders an issue, but which is imperfect or informal, may, upon leave, be amended after the expiration of the time for the filing of same. p. 585.</p> <p>3. Pleading.—Trial.—Special Statutes.—Procedure.—Omissions. --Where a special statute is silent as to part or all of the procedure necessary for its enforcement, the courts will supply the omissions from the procedure prescribed by the code. p. 586.</p> <p>4. Amendments.—Right of.—Discretion.—Amendments are favored by the code, and the trial court has a discretion to allow amendments that do not mislead or prejudice the opposite party, p. 586.</p> <p>5. Drains.—Remonstrance.—Joint.—Effect.—Remonstrators may jointly, as well as severally, remonstrate against the establishment of a drain on the ground that the expenses will exceed the benefits, and if the proof shows such fact, the petition should be denied, p. 587.</p> <p>6. Same. — Remonstrance.—Amendment.—Joint.—Several.—The court has power to permit, after the expiration of the time for filing, an amendment of a joint drainage remonstrance, so as to make it several, p. 587.</p> <p>7. Appeal.—Weighing Evidence.—The Supreme Court will not weigh conflicting evidence, p. 588.</p>

<p>1. Criminal Law.—Former Jeopardy.—Elements.—Where a defendant, in a criminal prosecution, is put upon his trial on a valid charge in a court having jurisdiction, and the cause is dismissed over his objection, he has been placed in jeopardy; and such action, under the Constitution (Art. 1, §14), operates as an acquittal, p. 590.</p> <p>2. Same.—Intoxicating Liquors.—Selling, Bartering and Giving. —Statutes.—Constitutional Law.—Section 2219 Burns 1905, Acts 1905, pp. 584, 720, §573, making it a crime to sell, barter or give intoxicating liquor to any person known to be intoxicated, defines three separate crimes, p. 590.</p> <p>3. Same .—Former Jeopardy.—Crimes.-—-When Same.—Where the facts necessary to a conviction on the second prosecution would not necessarily have convicted on the first, the plea of former jeopardy cannot prevail, since the crimes charged are not the same. p. 590.</p> <p>4. Same. — Intoxicating Liquors. — Selling. — Giving. — Former Jeopardy.—An acquittal on the charge of giving intoxicating ; liquor to a person known to be intoxicated does not bar a prose- , cution for selling such liquor to such person, though there was but one transaction, p. 591.</p> <p>5. Same.—Pleas in Bar.—-Sufficiency.—Intoxicating Liquors.— Former Jeopardy.—A plea in bar of a prosecution for selling intoxicating liquor to a person known to be intoxicated, which alleges that defendant had been acquitted upon the charge of giving such liquor to such person, is bad, although such plea further states that said charge on which he is being prosecuted is “for the same offense” of which he was acquitted, such allegation being a conclusion, p. 592.</p> <p>6. Criminal Law. — Conviction for Offense Charged. — Former Jeopardy.—Conviction for Different Crime for Same Transaction.—Where the State has convicted the defendant of a misdemeanor, because of a certain transaction, he cannot after-wards be convicted of a misdemeanor, because of such transaction, unless such transaction constituted two misdemeanors, p. 592.</p>

<p>1. Appeal.—Sufficiency of Evidence.—Only the evidence most favorable to appellee will be considered, where the error assigned is that the evidence does not support the Verdict, p. 596.</p> <p>2. Contracts.—Instalment Payments.—Time.—When Considered as of the Essence.—The rule that time is not ordinarily considered as of the essence of a contract, is applicable only in equity cases, and not to actions at law for the recovery of damages for a breach of such contract, p. 598.</p> <p>3. Same.—Sales.—Instalments.—Time.—When Considered as of the Essence.—At the common law, time is considered as of the essence of a contract of sale, where goods are to be delivered and paid for by instalments, p. 599.</p> <p>4. Same. — Sales. — Instalments.—Failure to Pay.—Recovery.— Where the vendee contracted to pay the vendor in instalments as the goods were delivered, and the vendee repeatedly and successively failed so to pay for several times, such vendee is not in a position to recover against the vendor for a breach of contract to continue to deliver goods, the vendee having first violated such contract, p. 600.</p> <p>5. Same. — Sales. — Failure to Pay. — Rescission.—The vendor, who contracted to deliver to the vendee certain goods in instalments, to be paid for within 60 days from the time of the successive deliveries, may rescind such contract, where the vendee repeatedly and continually failed to pay within the time. p. 600.</p> <p>6. Same.—Sales.—Failure to Pay.—Rescission.—Waiver.—The vendor does not waive his right to insist upon a rescission of his contract to deliver goods to his vendee in instalments, the goods to be paid for within 60 days from the time of the deliveries, the vendee having repeatedly failed to pay, on the ground that, after such rescission, such vendor accepts payment for the goods delivered and on which the vendee was in default. p. 602.</p>

<p>1. Appeal.—New Trial.—Demurrer to Answers.—When Same Questions Presented.—Where demurrers to the answers and the motion for a new trial present the same questions on appeal, a decision on the evidence suffices for both. p. 607.</p> <p>2. Sales.—-Caveat Emptor.—Implied Warranties.—Where the vendor, who is neither the manufacturer nor producer, sells the goods for all purposes to which they are adapted, and the goods are in existence and capable of inspection, the maxim caveat emptor applies, in the absence of fraud, even though defects, not discoverable on examination, exist in the goods, p. 607.</p> <p>3. Sales. — Implied Warranties. — Special Fitness. — Where the vendor sells and the vendee buys a specific chattel for a known purpose, for a full consideration, and inspection is either impracticable or no opportunity is afforded, there is an implied warranty that the chattel is fit for the purpose; and this is true regardless of whether the vendor was the manufacturer or a mere dealer, or whether the contract of sale was executory or executed, p. 608.</p> <p>4. Same.—Specific Goods.—Implied Warranty.—There is an implied warranty of soundness and serviceability in the sale, by a dealer, of a Fitter cable for drilling purposes, such goods having an established reputation for such qualities, p. 611.</p> <p>5. Same.—Implied Warranties.—Opportunity for Inspection.— Cables.—Where a vendor sold, for a specific purpose, a cable 1,400 feet long, wound in a coil and securely wrapped with burlap, the vendee did not have an opportunity to examine for defects, so as to make the maxim caveat emptor applicable to his purchase, p. 612.</p> <p>6. Pleading.—Answers.—Sales.—Implied Warranties.—Reliance Upon.—An answer stating that “relying on the presumed knowledge of the plaintiff of the required qualities of said cable from their exposing it for sale, and selling the same, they purchased it as herein stated,” sufficiently shows that defendants relied upon the implied warranty of soundness and fitness, if such an allegation is necessary at all. p. 613.</p> <p>7. Same.—Answers.—Sales.—Implied Warranties.-—Breach.—An answer showing that the cable purchased for a known purpose was not fit for the purpose, but was “wholly worthless,” “rotten, weak, and would not sustain the strain and weight necessarily put on it in drilling such wells, and broke” when used, and that as soon as defendants discovered such condition they “returned” it to plaintiff and “notified” the vendor of the condition thereof, sufficiently shows the breach of the implied warranty of fitness and soundness, and that a test thereof was seasonably made, the whole transaction up to the filing of the answers occurring within five months from the time of the sale, p. 613.</p> <p>8. Sales.—Rescission.—Reasonable Time.—Question for Jury.— In the absence of a contractual provision, a reasonable time is given to a person buying a specific article for a known purpose, no opportunity for inspection being given, in which to test such article and, if unfit, to return same and rescind the contract; and whether the time proved is reasonable, is- a question for the jury. p. 614.</p> <p>9. Pleading. — Uncertainty. — Motion to Make More Specific.— Where answers fail to set out the specific-time that goods were ascertained to be unfit for the purpose for which they were bought, a motion to make more specific is the proper remedy, p. 615.</p>

<p>1. Rape .—Elements.—Statutes.—Under §2004 Burns 1905, Acts 1905, pp. 584, 662, §361, rape consists in the carnal knowledge of a female of the age of fourteen or over, forcibly against her will, or in carnally knowing a female under fourteen, p. 618.</p> <p>2. Same.—“Woman.”—Words and Phrases.—-The word “woman,” as used in §2004 Burns 1905, Acts 1905, pp. 584, 662, §361, defining rape, imports a human female fourteen years of age or over. p. 618.</p> <p>3. Same.—Assault and Battery with Intent.—Elements.—To convict for assault and battery with the intent to commit rape on a female fourteen years of age or over, it must be proved beyond a reasonable doubt that defendant committed such assault and battery with the intent forcibly, and against such female’s will, to have carnal knowledge of such female. pp. 618, 620.</p> <p>4. Same.—Force.—Constructive or Implied.—The force necessary to the crime of rape need not always be actual, but may be implied from the circumstances, p. 619.</p> <p>5. Same. — Consent. — Duress.—-Fraud.—Consent, obtained by duress or fraud, is no defense in a prosecution for rape. p. 619,</p> <p>6. Trial.—Instructions.—Rape.—Force.—An instruction, in a prosecution for rape, that if the evidence shows beyond a reasonable doubt that defendant “laid or put his hands on the person of the prosecuting witness and that he did so with the thought, purpose and intention, in his mind of inducing her thereby to submit against her will to sexual intercourse with him,” he is guilty of rape, is bad, since it fails to include the element of force, p. 620.</p> <p>7. Same.—Instructions.—Defining Crime.—Omission of an Element.—An instruction attempting to set forth the elements of a crime, is bad, where it omits one essential element, p. 621.</p> <p>8. Same.—Instructions.—Erroneous.—Curing by Other Instructions.—Where one instruction is positively erroneous, its defects are not cured by giving an instruction which is correct, unless the erroneous instruction is clearly withdrawn, p. 621.</p> <p>9. Same. — Instructions. — Partial. — An instruction corrrectly stating the law so far as it assumes to do so, is not erroneous. p. 622.</p> <p>10. Same.—Instructions.—Rape.—Resistance.—An instruction, in a prosecution for rape, that the woman is not required “to resist by all violent means within her power” the aggressions of defendant, but that she must make a good-faith resistance, the existence of which is a question of fact for the jury, is not erroneous, p. 622.</p>

<p>1. Receivers. — Decedents’ Estates.—Evidence.—Executors and Administrators.-—Statutes.—Witnesses.—A suit by the administrators of a decedent’s estate against an indorsee of notes, for the cancelation of such indorsements because of fraud, for a temporary restraining order and for the appointment of a receiver, is governed, as to the evidence of heirs, by §506 Burns 1901, §498 R. S. 1881, providing that any person who is a necessary party to the record and whose interest is adverse to the estate is not a competent witness against such estate, an heir, who is not a party to the suit, being competent, therefore, to testify on behalf of such estate, p. 627.</p> <p>2. Evidence.—Executors and Administrators.—Heirs.—Verified Complaint for Receiver.—A verified complaint by the administrators of a decedent’s estate, and their depositions, are admissible in evidence, under §506 Burns 1901, §498 R. S. 1881, in a suit for the appointment of a receiver for property belonging to such estate but which is in possession of the defendant who claims same. p. 627.</p> <p>3. Appeal.—Appointment of Receivers.—Interlocutory Order.— Questions Presented.—On appeal from an interlocutory order appointing a receiver the Supreme Court will consider only the complaint and proofs, and will disregard collateral motions, p. 627.</p> <p>4. Receivers. — Appointment. — Loss of Property. — Statutes.— Under §1236 Burns 1901, §1222 R. S. 1881, providing for the appointment of receivers, a receiver may be appointed to conserve property which is in danger of being lost to the parties claiming same. p. 627.</p> <p>5. Appeal. -—• Evidence.—Documentary.—Weighing.—Where the evidence is wholly documentary, the Supreme Court will weigh same. p. 630.</p> <p>6. Receivers.—Decedents’ Estates.—Notes.—Conflicting Claims. —Fraud.—The trial court is authorized to appoint a receiver on the application of the administrators of a decedent’s estate, where the evidence shows that defendant through fraud or duress procured the decedent to indorse the notes in question to her and that she was about to dispose of them to the loss of the estate, p. 630.</p> <p>7. Same.—Remedy at Law.—It is not necessary that a party applying for the appointment of a receiver, shall have exhausted his remedy at law. p. 630.</p>

<p>1. Municipal Corporations.—Intoxicating Liquors.—Statutes.— Ordinances.—Motives.—The act of 1891 (Acts 1891, p. 137, §23, §3794 Burns 1901, permitting any city containing a certain population “to tax, license and regulate distilleries and breweries, and the depots or agencies established in said city of all breweries and distilleries,” authorizes a penal ordinance licensing and regulating such breweries, distilleries and depots; and the motives of the council in passing such ordinance are immaterial, p. 635.</p> <p>2. Same.—Ordinances.—Unfair Enforcement.—Pleading.—If a ‘penal city ordinance can be attacked at all because of unfair enforcement, it is essential that the facts showing a continuous policy of partiality in enforcement be set out in the pleading, p. 636.</p> <p>3. Same.—Ordinances.—Taxation.—Police Power.—A city ordinance relating to health, morality and security and imposing the payment of a fee to pay the costs occasioned thereby is an exercise of the police power, but where the fee is charged solely for revenue, it is a tax. p. 637.</p> <p>4. Same.—Ordinances.—Taxation.—Police Power.—Occupations. —Ordinances imposing a license fee upon useful and not harmful occupations are ordinarily a tax; but those imposed upon the liquor traffic and other harmful things which need State regulation, even though they yield more revenue than necessary to carry out their provisions, are a restriction in the exercise of the police power, p. 637.</p> <p>5. Same. — Ordinances. — Statutes. — Intoxicating Liquors.—An ordinance licensing breweries, distilleries and depots of same, is not invalid because there is a statute regulating same, where the ordinance provides for inspection .by the health and fire departments and for the general control of same. p. 638.</p> <p>6. Intoxicating Liquors.—Police Power.—The liquor traffic being necessarily dangerous and destructive, is a fit subject for the exercise of the police power; and the legislature may license, regulate or prohibit same. p. 638.</p> <p>7. Constitutional Law. — Interstate Commerce. — Intoxicating Liquors.—Licenses.—Cities.—A city ordinance, passed in the exercise of the police power, regulating and licensing breweries, distilleries and depots of same, within such city’s jurisdiction, is not invalid as affecting interstate commerce, p. 639.</p> <p>8. Intoxicating Liquors.'—License.—Excessive.—Municipal Corporations.—A city ordinance imposing a license fee of $1,000 upon breweries, distilleries and depots of same is not invalid because excessive, since the license fee may be regulated so as to discourage the business, p. 640.</p> <p>O. Municipal Corporations.—Intoxicating Liquors.—License.— Amount.—The authority to license the liquor traffic implies the right to fix the fee, and the fixing of such fee by city councils will be disturbed by the courts only where abuse is clearly shown, p. 640. ■</p> <p>10. Constitutional Law.—Citizens.—Corporations.—Privileges. —A resident agent of a foreign brewing company, arrested for violating a city ordinance imposing a license fee of $1,000 upon the maintenance of a depot by such company, cannot raise the objection that unequal privileges and immunities are granted, since he is a resident of the State and his company cannot claim the rights of a “citizen.” p. 641.</p> <p>11. Municipal Corporations. — Ordinances. — Intoxicating Liquors.—Licenses.—Discrimination.—A city ordinance imposing a license fee upon all breweries, distilleries and depots of same, is not discriminating, though one section defines the places which shall be considered as depots within the meaning of the ordinance, so as to include foreign breweries shipping beer to resident agents for purposes of local delivery, p. 642.</p> <p>12. Constitutional Law. — Statutes. — Construction.—Statutes, where their constitutionality is in question, will be construed, if possible, so as to sustain them. p. 642.</p>

<p>Indictment and Information. — Embezzlement. — Employes. — How Charged.—Words and Phrases.—An information charging an employe with the crime of embezzlement must show that such employe obtained possession of the money or property misappropriated “by virtue of such employment;” and the charge that he obtained such money or property “as such employe,” is not sufficient.</p>

<p>1. Parties.—Guardian and Ward.—Pleading.—Theory.—Appeal. —Where doubt exists whether the guardian or the ward was plaintiff, but, the guardian was treated as the plaintiff below, and he assigned the errors on appeal, such guardian will be treated, on appeal, as the real plaintiff. p. 647.</p> <p>2. Pasties. —Interest. — Wills.—Statutes. — Section 2766 Burns 1901, §2596 R. S. 1881, providing that “any person” may contest a will, means any person having an interest in the subject-matter of the contest, p. 647.</p> <p>3. Same.—Will Contests.—Special Procedure.—Civil Code.—The statute providing for the contest of a will, being silent as to whether a guardian or his ward shall institute the action, the courts will look to the civil code to determine such question, p. 647.</p> <p>4. Same.—Guardian and Ward.—Next Friend.—Wills.—Contest. —Under §§256, 257 Burns 1901, §§255, 256 R. S. 1881, an infant, suing by his next friend, may institute and maintain a proceeding to contest a will in which he is interested, p. 647.</p> <p>5. Same.—Guardian and Ward.—Source of Guardian’s Authority. —Guardians are creatures of statute, and their authority is measured thereby, p. 648.</p> <p>6. Same. — Guardian and Ward. — Wills.—Contest.—Guardians have no power to institute, on behalf of their wards, proceedings to contest a will. p. 648.</p> <p>7. Same.—Guardian and Ward.—Trustee of Express Trust.— Wills.—Contest.—Guardians have no right, under §252 Burns 1901, §252 R. S. 1881, authorizing the “trustee of an express trust” to maintain suits, to institute a proceeding to contest a will. p. 649.</p> <p>8. Same.—Guardian and Ward.—Equity Suits.—Guardians, as such, have no right, in the absence of statutory authority, to sue in equity on behalf of their wards, p. 650. .</p>

<p>Erom Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Action by Andrew L. Brown and others against Samuel Brown and others. From a judgment for plaintiffs, part of the defendants appeal.</p>

<p>1. Indictment and Information.—Falsely Attesting Deed.— Notaries Public.—Accessories before the Fact.—An indictment charging defendant as accessory before the fact to a notary public’s falsely certifying the acknowledgment of a deed, which deed purported to have been executed by a certain woman to the defendant, is bad, where such indictment shows that such deed was executed by such woman and her husband, it being impossible to ascertain which of such acknowledgments the notary public falsely attested, p. 659.</p> <p>2. Same.—Allegations.—Assumptions.—Allegations in an indictment must be positive, and assumptions or recitals of fact will not be indulged, p. 660.</p> <p>3. Same.—Material Allegations.—Falsely Attesting Deed.—Notaries Public.—In charging defendant as an accessory before the fact to a notary public’s falsely certifying to the acknowledgment of a deed, it is material and essential that such charge show whose acknowledgment was so certified, p. 660.</p> <p>4. Same.—Written Instruments.—Setting Out.—Statutes.—Section 1829 Burns 1905, Acts 1905, pp. 584, 624, §188, making it sufficient in an indictment to describe the writing in question by any name or designation by which the same is usually known, has the effect of making it unnecessary to set out the writing in words, p. 660.</p> <p>5. Constitutional Law. — Criminal Charge.—Certainty.—Defendant in a criminal ease has the constitutional right to demand that the nature and cause of the accusation against him shall be specifically set forth in the indictment, p. 661.</p>

<p>1. Trial. — Special Findings. — Primary and Ultimate Facts. — Where the primary facts in a special finding all point to but one conclusion, a statement of the ultimate facts is not necessary. p. 665.</p> <p>2. Same.—Special Findings.—Evidentiary Facts.—Consideration of.—Evidentiary facts embodied in a special finding may be considered so far as they explain or give color to the facts found, p. 665.</p> <p>3. Words and Phrases.—“Understood.”—“Agreed.”-—The words “understood” and “agreed” may be used synonymously as showing a contract relation, p. 666.</p> <p>4. Trial.—Special Findings.—Contracts.—A special finding showing that plaintiff told a third party that if such party would execute certain affidavits plaintiff “would treat him right,” and that “thereupon” he executed such affidavits, and that “in pursuance of this agreement” he assisted plaintiff in such prosecutions and that plaintiff paid such party a sum “in full settlement” of such transaction, shows that a contract was entered into. p. 666.</p> <p>5. Trial.—Special Findings.—How Considered.—Intendments.— Special findings should be considered as a whole, all reasonable presumptions and intendments being in their favor, p. 666.</p> <p>6. Same. — Variance.—How Questioned.—Appeal:—Contracts.— Where an answer avers that plaintiff and two other parties entered into a contract, and the special findings show that he entered into such contract with but one of such parties, there is a variance only and not a failure of proof, and the question of such variance, to be available on appeal, must be raised in the trial court, p. 667.</p> <p>7. Elections. — Buying Votes. — Rewards. — Statutes.—Public Policy.—It is contrary to public policy for a party, who has assisted in bribing a voter, to recover the reward provided by §2330 Burns 1901, Acts 1899, p. 381, §2, for procuring the conviction of such voter, p. 667.</p> <p>8. Same.—Bribing Voters.—Rewards.—Division of.—Public Policy.—Where a party assists in the bribery of voters, and is therefore unable to collect the reward provided by §2330 Burns 1901, Acts 1899, p. 381, §2, for procuring the conviction of a voter, he cannot transfer his rights to another so as to give a right of recovery; and such other party cannot recover, since the court cannot make an apportionment of the legal from the illegal, p. 668.</p> <p>9. Public Policy.—Rights Gained by Contract to Pay for Immoral Conduct.—It is contrary to public policy to permit a plaintiff to recover, where his asserted right of áction rests upon a contract to reward a third party for his iniquity. p. 668.</p> <p>10. Elections.—Bribing Voters.—Suppression.—Statutes.—Rewards.—The act of 1899 (Acts 1899, p. 381, §§2329, 2330 Burns 1901), providing for the conviction of bribed voters and giving a reward to the person securing the conviction, was designed to suppress the crime of vote selling, p. 669.</p>

<p>1. Appeal.—Joint Exceptions.—An entry on the overruling of defendant’s several demurrer to each paragraph of the complaint, showing that the defendant at the time “severally” excepted to such ruling, shows a several exception to the ruling as to each paragraph of the complaint, p. 673.</p> <p>2. Constitutional Law. — Class Legislation. — The legislature may make classifications for legislative purposes, but they must rest upon some natural or substantial basis and must operate alike upon all within the class, p. 674.</p> <p>3. Same.-—Employers’ Liability Act.—Private Corporations.— Section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901) providing that “every railroad or other corporation * * * shall be liable for damages for personal injury suffered by any employe while in its service, * * * where such injury resulted from the negligence” of any person to whose order the injured servant is required “to conform,” is unconstitutional as to private corporations, since it imposes burdens on them not placed upon individuals or partnerships engaged in similar business, p. 675.</p> <p>4. Master and Servant.—Fellow-Servant Doctrine.—The fellow-servant- doctrine, as applicable to our great industrial development, has become arbitrary, p. 685.</p> <p>5. Constitutional Law.—Employers’ Liability Act. — Private Corporations.—Right to Question Statute.—Private corporations, having certain liabilities imposed upon them by section one of the employers’ liability act (Acts 1893, p. 294, §7083 Bums 1901) have the right to contest the validity of such statute, since if it is invalid their servants cannot found a right of action thereon, p. 687.</p> <p>6. Corporations. — Organization. — Statutes. — Amendments. — Section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901), purporting to create liabilities against railroads and other corporations for injuries to servants under certain circumstances, cannot be considered as an amendment to the laws under which railroad and other companies are organized. p. 687.</p> <p>7. Words and Phrases. — “Other Corporations.” — The words “other corporations,” as used in §7083 Burns 1901, Acts 1893, p. 294, §1, include foreign as well as domestic corporations. p. 688.</p> <p>8. Corporations.—Foreign.—Power to Alter, Amend or Repeal. —States have no power to alter, amend or repeal the charters of foreign corporations, or the laws under which they were organized, p. 688.</p> <p>9. Same.—Foreign.—Rights of State.—The State has the power to prohibit or regulate the doing of business, by foreign corporations, within this State, p. 688.</p> <p>10. Master and Servant.—Safe Place.—The master is required to use ordinary care to provide the servant a safe place in which to work. p. 689.</p> <p>11. Same.—Fellow Servants.—Negligence.—The master is not liable to his servant for a fellow servant’s negligence in the details of the work, nor for necessary transitory perils created by the character of the work, nor for a fellow servant’s negligence in handling the appliances furnished, p. 689.</p>

<p>1. Insurance.—Proofs of Loss.—Waiver.—The waiver of proofs of loss may be inferred from such acts and conduct as are inconsistent with an intention to insist upon strict performance, p. 697.</p> <p>2. Same.—Proofs of Loss.—Waiver.—A distinct recognition of liability, by an insurance company, as by an offer to pay all or part of the loss, is a waiver of formal notice and proofs of loss, or of defects therein, p. 698.</p> <p>3. Same. — Conditions Beneficial to Company. — Waiver. — Performance of the conditions beneficial to an insurance company may be waived by such company, and such waiver may be in- ' ferred from the conduct of such company’s agents, p. 699.</p> <p>4. Same.—Conditions Precedent.—Arbitration.-—Waiver.—A condition in an insurance policy requiring arbitration as a condition precedent to bringing an action thereon, is waived by any conduct preventing an appraisal or an award, or by failure or refusal promptly to secure a fair and reasonable appraisement, after one is agreed upon. p. 699.</p> <p>5. Trial. — Insurance. — Arbitration. — Waiver. — Question for Jury.-—Whether an arbitration between the assured and the insurer failed because of fraud, delay or other fault, is a question for the jury. p. 701.</p> <p>6. Insurance. — Arbitration.—Appraisement.—Time for.—Payment.—A provision in a fire policy giving the company sixty days after notice and satisfactory proof of loss, to pay the loss, doek not give the company, after an agreement for an appraisal, sixty days within which to commence such appraisal, p. 702.</p> <p>7. Same.—Appraisement.—Time for.—Question for Jury.—A fire company must commence the appraisement of a loss, where an appraisement is necessary, within a reasonable time, and, in case of failure of an appraiser to appear, appoint another within a reasonable time thereafter; and whether the time taken is reasonable is a question for the jury. p. 702.</p> <p>8. Same.—Appraisement.—Delay.—Question for Jury.—Where a fire company agreed to commence an appraisement of a fire-and water-damaged stock of goods, not fully covered by insurance, on January 19, on which day assured’s appraiser was ready but the company’s appraiser failed to appear, and on January 28, assured telegraphed said company but it. failed to respond, assured three days afterwards proceeding to dispose of the goods, the question of waiver of proofs of loss and appraisement is for the jury. p. 703.</p> <p>9. Pleading. — Abatement. — Answer.—Reply.—Insurance.—Appraisement.—Waiver.—Wrongful Delay.—Where a fire company pleaded in abatement of an action on its policy, that the policy provided for an appraisement of the loss, which had not been made, and that it had not waived such provision, and plaintiff replied that such company had unreasonably delayed such appraisement, such reply is sufficient, p. 703.</p> <p>10. Appeal.—Briefs.—Evidence.—Pointing Out.—Where appellant’s brief fails to point out the page and line of the record where the alleged incompetent evidence was admitted, errors based on the admission thereof will not be considered, p. 704.</p> <p>11. Trial. — Instructions.—Insurance.—Appraisement.—Waiver. —Abatement.—Circumstances.—On the trial of a plea in abatement in an insurance case alleging that no appraisement had been made, which was, when required, a condition precedent to an action, an instruction authorizing the jury, in determining whether such provision had been waived, to consider all of the circumstances, an appraisement having been agreed upon, was proper, p. 704.</p> <p>12. Same. — Insurance.—Appraisement.—Waiver.—Motives.—On the trial of a plea in abatement, in a fire insurance case, alleging that the plaintiff had not secured a required appraisal of the lost and damaged goods, an instruction that such requirement might be waived and that the company’s conduct should be considered in determining whether it had unreasonably delayed such appraisement, is proper, p. 705.</p> <p>13. Same. — Insurance. — Appraisement. — Waiver.—Conduct.— Contracts.—Construction.—On the trial of a plea in abatement, in a fire insurance ease, alleging that a required appraisement had not been made, an instruction that such requirement might be waived and that the company’s conduct should be considered on the question of waiver by unreasonable delay, is not bad on the ground that it authorizes the jury to put a liberal construction upon the contract of insurance, p. 706.</p> <p>14. Pleading.—Plea in Abatement.—Plea in Bar.—Estoppel.— Where an insurance company pleads in abatement of the pending action that it required an appraisement of the loss, and that it had not waived the same, and an unsuccessful trial is obtained thereon, it is estopped from asserting such matters in bar of such action, p. 706.</p> <p>15. Trial.—Instructions.—Exceptions.—Time for Taking.—New Trial.—No question is presented where exceptions to instructions were signed and dated on July 3, and the motion for a new trial, asserting error on the rulings on such instructions, was filed on July 1, though such exceptions show that the defendant “at the time excepted.” p. 707.</p> <p>16. Same. •—■ Instructions. — Exceptions.—Oral.—Statutes.—Oral exceptions taken under §544a Burns 1905, Acts 1903, p. 338, §1, to be effective, must be properly.entered of record, p. 707.</p> <p>17. New Trial.—Instructions.—Exceptions.—The assignment, in a motion for a new trial, of error in the ruling on an instruction, presents no question, where no exception was taken to such ruling, p. 707.</p> <p>18. Trial.—Evidence.—Court’s Limiting Purpose of.—Instructions.—The court’s remarks to the jury in limiting the consideration of certain evidence to certain purposes, do not constitute instructions within the meaning of §544a Bums 1905, Acts’ 1903, p. 338, §1. p. 708.</p>