Volume 169 — Indiana Reports

<p>1. Constitutional Daw.—Statutes.—Amendments.—Original Acts. —A statute which has the effect of amending an existing statute, but which purports to be an original act, is not invalid as in conflict with the Constitution (Art. 4, §21), requiring the amended act to be set forth in an amending statute, p. 2.</p> <p>2. Same.—Statutes.—Partly Void.—Officers.—Additional Duties'.— Fees and Salaries.—An act imposing additional duties upon public officers and giving additional compensation therefor, may be valid, even though the provision for increased compensation be void. p. 2.</p> <p>3. Same. — Statutes. — Local.—Partly Void.—Courts.—Fees.—The statute (Acts 1907, p. 7, §§1574-1595 Burns 1908) creating superior courts for two counties and providing that the fees collected shall be paid into the county treasuries to reimburse such counties for the expenses of such courts, is not invalid on the ground that such statute is local, since if such provisions as to the disposition of fees are void, the remainder of the act will not be invalidated. p. 2.</p>

<p>1. Constitutional Law.—Employers’ Liability Act.—Validity.— Railroads.—Section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901) is constitutional as to railroads, p. 5.</p> <p>2. Appeal.—Briefs.—Points.—Motion to Make More Specific.—On an assignment, on appeal, that the court erred in overruling appellant’s motion to make the complaint more specific, appellant’s “points” in the brief must show concisely, in what respect the complaint was not specific, p. 7.</p> <p>3. Master and Servant.—Employers’ Liability Act.—Railroads.— Conductors.—Special Orders.—An order by a railroad conductor .to a servant to make ready to shove the cars on track number one, meaning to “adjust all couplers and couple cars standing on said track as was usual, proper and customary to be done under such order and direction,” is a special order within the meaning of section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901). p. 8.</p> <p>4. Same.—Employers’ Liability Act.—Assumption of Risk.—Railroads.—A servant in a railroad switch yard does not assume the risk of a conductor’s negligence in ordering him to arrange the couplings of cars standing on thd* track, and afterwards, without warning to such servant, ordering an engineer to back against such cars, thereby causing injuries to such servant, p. 9.</p> <p>5. Pleading.—Complaint.—Master and Servant.—Employers’ Liability Act.—Railroads.—A complaint showing that the plaintiff, an employe in a switch yard, was injured by reason of the negligence of defendant railroad company’s engineer, states a cause of action, p. 10.</p> <p>6. Master and Servant.—Assumption of Risk.—Contracts.—Employers’ Liability Act.—A contract by which the servant assumes all risk of negligence in working upon a railroad is void as against public policy and also as in violation of the express provision of section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901). p. 11.</p> <p>7. Appeal.—Briefs.—Waiver.—Alleged errors not questioned in any manner in appellant’s brief are waived, p. 12.</p> <p>8. q’RiAL.—instructions.—Employers’ Liability Act.—Explaining Meaning of.■—An instruction, in a personal injury case, embodying the substantial provisions of section one of the employers’ liability act (Acts 1893, p. 294, §7083 Burns 1901), so far as they applied to such cause, is not erroneous, p. 12.</p> <p>9. Tbial.—Instructions.—Railroads.—Corporate Existence.—Admissions.—An instruction, in a personal injury case, that defendant railroad company by entering a general appearance admitted its corporate capacity, and that proof thereof was not required, is correct, p. 12.</p> <p>10. Same.—Instructions.—Contributory Eegligenoc.—General Denial.—An instruction, in a personal injury case, that contributory negligence is a defense provable under the general denial, is not erroneous, p. 12.</p> <p>11. Same.—Instructions.—Railroads.—Care Required.—An instruction, in a personal injury case, that the defendant railroad company was required to exercise such care as persons of ordinary care and prudence would exercise under like circumstances, is not improper, p. 12.</p> <p>12. Same.—Instructions.—Outlining Issues.—An instruction, in a personal injury case, outlining the issues in the case and directing a verdict for plaintiff in case such issues are determined in his favor by a preponderance of the evidence, where contributory negligence is not proved, is not incorrect, p. 13.</p> <p>13. Same.—Instructions.—Damages.—Elements.—Failure to Limit to Evidence.-—An instruction, in a personal injury case, defining the elements of damage, but failing to limit the jury to the evidence in estimating same, is not misleading, p. 13.</p> <p>14. Same.—Instructions.—Peremptory.—A peremptory instruction for defendant should be refused, where there is some evidence to support the material allegations of plaintiff’s complaint, p. 13.</p> <p>15. Same.—Instructions.—Inapplicability.—The court should refuse an instruction not applicable to the evidence in the case, p. 13.</p> <p>16. Evidence.—Expectancy Tables.—Expectancy tables are admissible in evidence, in a personal injury case. p. 13.</p> <p>17. Appeal.—Waiver.—Appellant’s silence, as to an alleged error, in the brief on appeal, is a waiver of such error, p. 13.</p> <p>18. Same.—Evidence.—Sufficiency.—Where there is no material conflict in the evidence and the substantial averments of the complaint are substantiated by the evidence of one witness, the verdict in accordance therewith is not contrary to law and is supported by the evidence, p. 13.</p>

<p>1. Criminal Law.—Intoxicating Liquors.—Licenses.—State.—Municipal Corporations.—Under §1709 Burns 1001, §1040 R. S. 1881, providing that municipal ordinances making penal'a crime against the State, shall be void, a prosecution for selling liquor without a state license does not bar a prosecution for making the same sale without a city license, p. 15.</p> <p>2. Municipal Corporations.— Ordinances. — Supplementing State Laws.—Municipal corporations may be authorized to pass ordinances to supplement the state laws. p. 1G.</p> <p>3. Criminal Law.—Intoxicating Liquors.—Sales in Drug Stores.— Power of Cities to Punish.—Municipal corporations have no right, under an ordinance making it punishable to sell intoxicating liquor without’ a city license, to prosecute a druggist for selling liquor without a prescription from a reputable practicing physician, since such act is punishable by state law (§7283] Burns 1901, Acts 1895, p. 248, §9%). p. 1G.</p> <p>4. Municipal Corporations.—Intoxicating Liquors.—Licenses.—• Drug Sioi-es.—Municipal corporations have no power to license druggists to sell intoxicating liquors, p. 17.</p>

From Floycl Circuit Court; William G. Viz, Judge. Action by James Moran against the Kentucky & Indiana Bridge & Railroad Company. From a judgment on a verdict for plaintiff for $1,200, defendant appeals. Transferred from Appellate Court (see 39 Ind. App. 24) under §1337j Burns 1901, subd. 1, Acts 1901, p. 565, §10.

Prom Hancock Circuit Court; Edward W. Felt, Judge. Action by Luke Kane against the Indianapolis Street Railway Company. Prom a judgment on a remittitur of $5,000 from a verdict for $15,000, defendant appeals. Appealed from Appellate Court under §1837j Burns 1901, subdv. 3, Acts 1901, p. 565, §10.

Prom Allen Circuit Court; E. 0 ’Rourlze, Judge. Drainage petition by David C. Smith and others, against which Joseph H. Gustin and others remonstrate. Prom a judgment of the circuit court dismissing the cause, petitioners appeal.

<p>1. Contracts.—Gas and Oil Leases.—Consideration.—Assignments. —Estoppel.—The grantor of a gas and oil lease stipulating that it had been executed upon a consideration of $1, is es-topped, as against an innocent purchaser for value, from denying the receipt of such consideration, p. 5G.</p> <p>2. Same.—Gas and Oil Leases.—Purpose.—Construction.—The central purpose of the ordinary gas and oil lease is to develop the production of such minerals; and such leases are construed in the light of such purpose, p. 5G.</p> <p>3. Same.—Gas and Oil Leases.—Options.—Forfeitures.—Where a gas and oil lease provides that wells shall be sunk within a designated time, or in case of failure, the lessee to have the right, upon making certain payments, to an extension of the time, the lessor may compel the development of the territory, or, in case of failure, forfeit the lease, p. 50.</p> <p>4. Same.-—Gas and Oil Leases.—Options.—Payments for Extension. —Whether in Advance.—A gas and oil lease stipulating that certain wells should be sunk within a certain time, or, in ease of failure, the lease to be extended for a certain time upon the payment of certain amounts, and, in case of failure to pay such amounts, the lease to forfeit, requires such sums to be paid in advance, p. 56.</p> <p>5. Same.—Gas and Oil Leases.—Nature of.—Landlord and Tenant. —The ordinary gas and oil leases do not create the relation of landlord and tenant, and an action cannot he maintained thereon for the beneficial use or occupation of the lands, p. 57.</p> <p>6. Same.—Gas and Oil Leases.—Forfeitures.—Election.—The forfeiture of a gas and oil lease for failure to sink wells is optional with the lessor, and his election to determine the contract must be made at the time of the failure, p. 57.</p> <p>7. Same.—Forfeitures.—Equitable Belief From.—Gas and Oil Leases.—Equity will not relieve the lessee in a gas and oil lease, where such lessee has failed to sink a well within the specified time, and has failed to make the payment necessary to secure an extension of time, the lease providing for a forfeiture under such circumstances, p. 58.</p> <p>8. Appeal.—Transcript.—Change of Venue.—Defects in Cleric's Certificate.—Whether a transcript on a change of venue was not under seal, is a question for the trial court, p. 59.</p> <p>9. Same.—Transcript.—Change of Venue.—A -transcript, on appeal to the Supreme Court, which includes the transcript of the papers and entries of another court on a change of venue, properly certified, sufficiently authenticates the papers and entries of the court from which the venue was changed, p. 59.</p> <p>10. Statutes.—Construction.—Prior Statute.—Judicial Interpretation.—A statute substantially reenacting a prior one which had received a judicial construction, will be construed as the prior one. p. 60.</p> <p>11. Total.—Change of Venue.—Number Permissible.—Several Parties.—One party to an action has the right to a change of venue from the county, regardless of the wishes of his coparties. Peters v. Banta. 120 Ind. 416, distinguished, p. 61.</p>

<p>1. Quo Warranto.—Elcotions.—Ineligible Candidates.—Right of Eligible Candidate to Office.—The action of quo warranto cannot be maintained, under §§1188, 1189 Burns 19Ü8, §§1131, 1132 It. S. 1881, on the relation of an eligible candidate receiving a minority of the votes east, to oust an ineligible candidate receiving the majority of the votes east, unless be shows that the voters either knew or must be held to know of such candidate’s ineligibility, p. 05.</p> <p>2. Same.—Elcotions.—Evidence.—Notice of Ineligibility of Candidate.—Presumptions.—The voters of a county are not, except upon clear proof, presumed “willfully and obstinately” to have voted for a certain candidate for county assessor who was not a freeholder. p. 08.</p> <p>3. Elections.—Ineligible Candidate.—Notice.—Where the voters, without knowledge, elect an-ineligible candidate as county assessor, his opponent is not entitled to the office. State, ex rel., v. Callagher, 81 Ind 558, and State, ex rel., v. Johnson, 100 Ind. 489, limited, p. 09,</p> <p>4. Quo Wabbanto.—Officers.—Ineligibility.—Remedy.-—The prosecuting attorney has the right to institute a quo warranto proceeding to oust an ineligible officer, p. 71.</p>

<p>1. Larceny.—Felonious Intent.—Evidence.—Proof of felonious intent is necessary to establish larceny, but such proof may be direct or circumstantial, the requisite being that i.t shall remove all reasonable doubt of guilt from the minds of the jury. p. 73.</p> <p>2. Same.—Evidence.—Sufficiency.—A conviction for larceny is justified where the evidence shows that defendant, without permission, at 6:30 o’clock, p. m., took the prosecuting witness’s horse and buggy and drove away hurriedly, and, when caught, explained that he was going to the next town to look for work, and that he then intended to release the horse, the evidence further showing that he was a stranger and had been wandering around in the city during the whole of the afternoon, p. 74.</p> <p>3. Trial.—Larceny.—Verdict.—Infants.—Under §8310 Burns 1901, Acts 1883, p. 19, §8, the jury, in a prosecution for larceny against a boy fourteen years old, may return a verdict of guilty, and assess therewith his confinement in the Indiana, Boys’ School until he attains twenty-one years of age. p. 74.</p> <p>4. Same.—Verdict.—Form.—New Trial.—Defects in the form of a verdict cannot be reached by a motion for a new trial, p. 75.</p>

<p>1. Statutes.—Judicial Construction.—Subsequent Reenactment.— Where a statute is given a judicial construction by the Supreme Court, such statute, subsequently reenacted, is impressed with the same construction, unless the contrary is shown by the act. p. 76.</p> <p>2. Same.—Appeal.—Amount ■ in Controversy.—Under subdivision fourteen of section one of the act of 1907 (Acts 1907, p. 237, §1392 Burns 1908), providing that “all cases wherein the amount of money in controversy, exclusive of interest and cost, on the judgment of the trial court exceeds $6,000,” shall be appealable to the Supreme Court, means that such “amount of money in controversy” shall consist of a money judgment, p. 76.</p> <p>3. Appeal.—Transfer.—A case erroneously appealed to the Supreme Court will be transferred to the Appellate Court, p. 77.</p>

<p>1. Marriage.—Validity.—Presumptions.—In civil cases there is a presumption that a marriage which is consummated is legal, and that a prior marriage has been legally dissolved, p. 78.</p> <p>2. Trial. — Instructions.—Bigamy.—Prior Marriage.—Divorce. — Presumptions.—An instruction, in a prosecution for bigamy, that if all other facts constituting such crime liad been proved beyond a reasonable doubt, and nothing had been proved showing a dissolution of defendant’s prior marriage to a woman still living tlie State was not required to introduce any further evidence to make a prima facie case, is correct, p. 78.</p> <p>8. Same.—Assumption of Pacts.—An instruction that the jury had a right to consider the facts, “if such be the facts,” that in making his application for license to marry the present wife defendant misstated liis name and residence and falsely concealed the fact of his former marriage, does not‘assume such facts, p. 79.</p>

<p>1. Pleading.—Complaint.—Gravel Roads.— Enforcement of Contracts for Building of.—A complaint oa a gravel road construction contract showing that the road was duly ordered; that plaintiff had fully performed the contract; that the board had refused payment; that it had duly obtained the money wherewith to pay; that plaintiff’s claim, duly verified by the superintendent, had been duly filed with the board; that payment had been refused, but which complaint failed to show an acceptance of the road by su'ch board, is not sufficient, p. 82.</p> <p>2. Mandamus.—Gravel Roads.—.-1 cceptancc. — Payment. — Mandamus does not lie to compel a hoard of commissioners to accept a completed gravel road and to pay for the construction thereof, p. 85.</p> <p>3. Highways.—Gravel Roads.—Liability for Construction.—The contract price of a completed gravel road constitutes an indebtedness against only the persons owning property liable to assessment within the taxing district concerned in the construction of such road. p. 86.</p> <p>4. Same.—Gravel Roads—Acceptance.—Conditions Precedent.— The acceptance of a gravel road by the hoard of commissioners is a condition precedent to the contractor’s right to recover the whole of the contract price thereof, p. 87.</p> <p>5. Same.—Gravel Roads.—Acceptance.■—It is the duty of the proper board of commissioners to examine and determine whether a gravel road is constructed according to contract, p. 87.</p> <p>O. Statutes. — Construction.—Principal Powers.—Implications. — The statutory grant of a principal power carries by necessary implication a grant of the incidental powers necessary to carry out such principal power, p. 87.</p> <p>7. Same.—Construction.—Prior and Subsequent Kindred Legislation.—Highways.—In construing the gravel road statutes, the courts, to determine the legislative intent, may examine prior and subsequent kindred highway statutes, pp. 89, 91.</p> <p>8. Highways.—Gravel Roads.—Completion.—Acceptance.—Procedure— Under §0911 Burns 1901, Acts 1901, p. 440, §13, upon the completion of a "gravel road, it is the duty of the superintendent and engineer to report same to the board of commissioners, whereupon time and opportunity shall be given by the board to the persons assessed for filing objections, which shall be tried, and upon a decision as to the completion of the road an appeal may be taken by any party aggrieved, pp. 90, 91.</p>

From Clark Circuit Court; Harry G. Montgomery, Judge. Action by the State of Indiana, on the relation of Henry Knobloch, against George B. Parks, as county auditor of Clark county. From a judgment for defendant, plaintiff appeals.

<p>Prom Laporte Circuit Court; John C. Richter, Judge.</p> <p>Eminent domain proceeding by the Chicago, Lake Shore & South Bend Railroad Company, against Mattie Darrow. Prom an interlocutory order appointing appraisers, defendant appeals.</p>

<p>1. Municipal Corporations.—Nuisance.—Ordinances.—Statutes.— Under §3794 Burns 1901, Acts 1891, p. 137, §23, and §3477 Burns 1905, Acts 1905, p. 219, §53, authorizing municipal corporations “to declare what shall constitute a nuisance,” and §1709 Burns 1901, §1640 R. S. 1881, and §1719 Burns 1905,- Acts 1905, p. 584, §62, prohibiting municipal corporations from making an act, constituting a crime, punishable by ordinance, municipal corporations have the power to declare to be public nuisances, those things— not crimes, or nuisances per se—which may reasonably be considered as constituting a public nuisance, p. 106.</p> <p>2. Nuisance. — Ordinances. — Reasonableness. — Where municipal corporations are empowered to declare what shall constitute nuisances, their reasonable exercise of such power cannot be controlled nor overturned by the courts, p. 107.</p> <p>3. Same.—Smoke.—Ordinances.—Under §3794 Burns 1901, Acts 1891, p. 137, §23, and §3477 Burns 1905, Acts 1905, p. 219, §53 authorizing municipal corporations “to declare what sh^U constitute a nuisance,” cities may declare the emission, within the corporate limits, of dense black or dense gray smoke to constitute a nuisance, p. 108.</p> <p>4. Municipal Corporations.—Ordinances.—Unequal Privileges.— Nuisance-Smoke.—A municipal ordinance declaring the emission of dense black or dense gray smoke from factory and quasi-public building furnaces to constitute a nuisance, is not void, though it excepts therefrom the emission of smoke from private residences, p. 111.</p> <p>5. Same.—Ordinances.—Several Subjects.—Constitutional Law.— A municipal ordinance is not rendered invalid because it contains several different subjects, the constitutional provision as to a single subject’s being embraced in one act not applying, p. 111.</p>

<p>1. Extradition.—Interstate Rendition.—Basis of Right.—The right of interstate rendition of fugitives from justice rests upon article 4, §2, of the federal Constitution, p. 118.</p> <p>2. Constitutional Daw.—Due Process.—Extradition.—An alleged fugitive from justice has the constitutional right to challenge the process employed against him, on the ground that it does not constitute “due process” within the meaning of the federal Constitution. p. 118.</p> <p>3. Habeas Corpus.—Return.—Exceptions.—Demurrer.—The sufficiency of the return to a writ of habeas corpus cannot be raised by a demurrer, the statutory and proper method being by an exception thereto, p. 119.</p> <p>4. Habeas Corpus.—Return.—Exceptions.—Form.—An exception to the third paragraph of a return in a habeas corpus case, in form: “petitioner for exception to the third paragraph of return says, that said paragraph does not state facts sufficient to constitute a defense to petitioner’s writ,” sufficiently presents the question of the sufficiency of such return, p. 119.</p> <p>5. Appeal.—Right Result.—Wrong Remedy.—A judgment will not be disturbed, where a right result was reached, though by the wrong procedure, p. 120.</p> <p>6. Extradition.—Requisition.—Essentials. — Demand.—The warrant, issued on a requisition for a fugitive from another state, to justify an arrest, should show that a demand was made upon the Governor of this State; that the prisoner has been charged, before a tribunal with power to try, with the commission of a crime in the demanding state; that.a regular proceeding has been begun in said state and the time and place of the commission of the alleged crime, p. 120.</p> <p>7. Same.—Requisition.—Essentials.—Warrant.—A requisition for the return of an alleged fugitive should show a copy of an indictment, duly certified as authentic, charging such fugitive with the commission of a crime; but the warrant of arrest, issued by the Governor, need not show that the crime was regularly and sufficiently charged in the demanding state, p. 120.</p> <p>8. Evidence.—Proper Criminal Charge.—Requisition.—Warrant.— Extradition.—The Governor’s warrant reciting that the arrest and return of a fugitive has been demanded upon a properly accredited criminal charge set forth in the demand made upon the Governor, is prima facie evidence that such fugitive was properly charged in the demanding state, p. 121.</p> <p>9. Habeas Corpus.—Return.—Exceptions.—Answer.—An exception to an officer’s return in a habeas corptis case, by a fugitive, challenges the regularity only of the extradition proceedings; and if such proceedings are sought to be impeached, it must be by answer, the return being considered as true unless specifically denied, p. 121.</p> <p>10. Extradition.—Interstate Rendition. — Demand. — Warrant. — Essentials.—A warrant issued by the Governor, in an interstate rendition proceeding, which recites a demand upon him, and sets out a copy of a regular indictment pending in the demanding state, sufficiently shows such demand and the time and place of the commission of the offense, p. 122.</p> <p>11. Same.—Interstate Rendition.—Limitation of Actions.—Burden of Proof.—The burden is upon the fugitive to allege and prove that the crime for which he is sought on interstate rendition proceedings is barred by the statute of limitations of the demanding state, p. 123.</p> <p>12. Extradition.—Governor.—Lieutenant.—Execution of Requisition Papers.—Interstate rendition papers, executed by tbe Lieutenant Governor, as Governor, ol tbe demanding state are not bad, unless the alleged fugitive plead and prove that such Lieutenant Governor bad no power to act as Governor at tbe time of tbe execution of such papers, p. 124.</p>

<p>1. Indictment and Information.—Charging in Language of Statute.—Where a statute specifically defines a crime, an. indictment charging in the language thereof is sufficient; but where the crime is defined in general terms, the indictment must specifically state the elements of the offense, p. 120.</p> <p>2. Nuisance.—Abatement.—Obstructing Biglmay.—The obstructing of a public highway constitutes a nuisance which may be abated, p. 126.</p> <p>3. Pleading.—Complaint. — Nuisance. — Abatement. — Obstructing Highway.—A. complaint for the abatement of a nuisance consisting of the obstruction of a public highway must identify such highway, p. 126.</p> <p>4. Indictment and Information.—Obstructing Biglmay.—An indictment for obstructing a public highway charging that defendant, at said county, “did then and there unlawfully obstruct a certain public highway,” is too indefinite. State v. Buxton, 31 Ind. 67, limited, p. 126.</p>

<p>1. Constitutional Law.-—Statutes.—Dogs.—Taxation of.—The act of 1897 (Acts 1897, p. 178, §3258 at seq. Burns 190S), providing for the taxing of dogs, is constitutional; and its object is the restriction of the keeping of dogs. p. 133.</p> <p>2. Animals.—Dogs.—Property.—Ordinarily, dogs are not regarded as property, p. 133.</p> <p>3. Statutes.—Dogs.—Taxation.—Police Power.—Statutes for the taxation of dogs are enacted in the exercise of the police power of the State, p. 133.</p> <p>4. Animals.—Dogs.—Taxation of.—Persons Liable.—Receipts.— Criminal Law.—The owner, harborer or keeper of a dog on September 24, is guilty of a misdemeanor, under §3266 Burns 1908, Acts 1897, p. 178, §9, providing that it shall be a misdemeanor to own, keep or harbor a dog without holding a tax receipt therefor, where he became the owner of the dog on September 17, such dog being three months old on September 21. p. 133.</p> <p>5. Same.—Dogs.—Receipts—Transferability.—A receipt for taxes paid upon a dog is purely personal, and cannot be transferred to a vendee so as to protect such vendee from liability for the payment of tax during the year for which such tax was paid. p. 134.</p> <p>6. Appeal.—Criminal Law.—Misdemeanors.—Costs.—Under §2211 Burns 1908, Acts 1905, p. 584, §325, subd. 3, the State may appeal in misdemeanor cases, on a reserved question of law, and in case such appeal is sustained, the appellee is liable for the costs thereof, p. 135.</p>

<p>From Decatur Circuit Court; Marshall Hacker, Judge.</p> <p>Prosecution by the State of Indiana against Oliver P. Floyd. From a judgment for defendant, the State appeals.</p>

<p>1. Eminent Domain.—Pending Proceedings.—Statutes.—Repeal.— The eminent domain act of' 1905 (Acts 1905, p. 59, §§893-904 Burns 1905) did not affect proceedings filed after the passage of such act, but before the taking' effect thereof; and such proceedings will be considered as pending in all respects as if such act had not been passed, p. 141.</p> <p>2. Pleading.—Complaint.—Eminent Domain.—Amendments.—The description of the real estate in a complaint for condemnation may be amended to conform to the description contained in the appraisement, even after a finding or a verdict on the exceptions, p. 142.</p> <p>3. Eminent Domain.—Improvements.—Subsequent Condemnation. —Damages.—Where one, having the right to exercise the power of eminent domain, enters upon another’s land, with or without consent, and places improvements thereon, he is not required, in a subsequent proceeding for the condemnation of such land, to pay to the landowner the value of such improvements. Graham v. Connersville, etc., R. Co., 36 Ind. 463, overruled, p. 143.</p> <p>4. Ejectment.—Injunction.—Railroads.—Wrongful Use. — Acquiescence.—Neither ejectment nor injunction will lie, ordinarily, to prevent a railroad company’s use of lands wrongfully taken, where the owner has acquiesced in such taking until such company has entered upon its duties as a common carrier, p. 144.</p> <p>5. Eminent Domain.—Schools.—Improvements. — OttmersMp of Lands.—Mistake.—Subsequent Condemnation.—Damages.—Where a part owner of a tract of land knowingly permits a school township to use such tract and erect a school building and fences thereon, such owner, in a subsequent proceeding to condemn such land, cannot require such improvements to be considered in estimating the damages recoverable, p. 147.</p>

Prom Jefferson Circuit Court; Hiram Francisco, Judge. Action by Edward T. Hardsaw against the Monongahela River Consolidated Coal and Coke Company. Prom a judgment on a verdict for plaintiff for $2,000, defendant appeals. Transferred from Appellate Court under §1337j Burns 1901, subd. 2, Acts 1901, p. 565, §10.

Prom Marion Circuit Court (13,134); Henry Clay Allen, Judge. Objections by Minnie Steinkuehler and others to the probate of a will offered by Sophie Wempner and others. Prom a judgment admitting such will to probate, objectors appeal.

Prom Howard Circuit Court; James F. Elliott, Judge. Highway proceeding by Herman P. Ross and others, against which Edward G. Becker and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

Prom Delaware Circuit Court; Joseph Q. Lefjler, Judge. Suit by Morris A. Talbott and others against the Town of New Castle. Prom a decree for plaintiffs for less than their claim, they appeal. Transferred from Appellate Court under §1337o Burns 1901, Acts 1901, p. 565, §15.

<p>1. Statutes. — Reenactment. —■ Construction. — Where a statute, which has been judicially construed, is reenacted, the construction given will be considered as a part of the legislative intent in such reenactment, p. 181.</p> <p>2. Same.—Common Law.—Acts of Parliament.—The common law, with the acts of parliament in aid thereof, prior to the fourth year of the reign of James I, is in force in Indiana, except where inapplicable or where inconsistent with constitutional or statutory provisions, p. 182.</p> <p>3. CbiminaIi Law.—Crimes.—All crimes in Indiana are statutory. p. 182.</p> <p>4. Nuisance.—Public.—A public nuisance is one that always arises out of the violation of a public right, and ordinarily results in special injury to one person the samo as to another, p. 182.</p> <p>5. Same.—Public.—Legitimating.—Where the state legitimates an act, otherwise unlawful, such act cannot be considered as constituting a public nuisance, p. 183.</p> <p>6. Same.—Saloons.—Intoxicating Liquors.—An ordinary saloon does not, at the common law, constitute a public nuisance, but such place when kopt in an unlawful manner may become such, p. 183.</p> <p>7. Constitutional Law.—Intoxicating Liquors.—Licensing Sale of.—Statutes.—The legislature has the constitutional right, as a restrictive measure, to license the traffic in intoxicating liquors for beverage purposes, p. 180.</p> <p>8. Intoxicating Liquors.—Sales.—'Right to Engage in.—Curtailment.—The right to engage in the sale of liquors at retail arises solely from the common law, and such right is subject to any restriction the legislature sees fit to impose under its exercise of the police power, p. 104.</p> <p>O. Courts.—Duties.—Statutes.—It is the duty of the courts and inferior administrative and judicial bodies to enforce the valid laws enacted by the legislature, regardless of whether the wisdom of such laws accords with the views of such courts and bodies, p. 201.</p> <p>10. Constitutional Law.—Intoxicating Liquors.—Sales.—Statutes. —The liquor license act of 1875 (Acts 1875, [s. s.J p. 55) is constitutional. p. 204.</p> <p>11. Evidence.—License.—Nuisance.—In a prosecution against a saloon-keeper for maintaining a nuisance,' the license issued to him is competent evidence of his right to conduct his saloon, p. 204.</p>

Prom Starke Circuit Court; John C. Nye, Judge. Partial report of William II. II. Coffin, as commissioner for the construction of a public drain, to which the MakSaw-Ba Club objects. Prom an order approving the report, the exceptor appeals.

<p>1. Eminent Domain.—Landlord and Tenant.—Street Railroads.— Appurtenances.—The lessee of a street railroad, unless affirmatively authorized by statute, cannot exercise the power of eminent domain to establish a transmission line appurtenant to such railroad. p. 217.</p> <p>2. Same.—Street Railroads.—Lessees.—Statutes.—Section 5468a Burns 1905, Acts .1903, p. 92, §1, authorizing any street railroad company desiring to “acquire,” or having “acquired” a street, interurban, or suburban railroad, to exercise the right of eminent domain in establishing transmission lines, affirmatively authorizes lessee street railroad companies to exercise such right of eminent domain, p. 218.</p> <p>3. Words and Phrases.—“Acquire."-—Statutes.—Street Railroads. —The word “acquire,” as used in §5468a Burns 1905, Acts 1903, p. 92, §1, providing that any street railroad company' desiring to “acquire,” or having “acquired” any street, interurban, or suburban railroad shall have the right to exercise the power of eminent domain in the establishment of necessary transmission lines, includes the obtaining of control by leasing, p. 219.</p> <p>4. Eminent Domain.—Street Railroads.—Transmission Lines.— Appurtenances.—A lessee street railroad company has the right, under §5468a Burns 1905,. Acts 1903, p. 92, §1, to exercise the right of eminent domain in establishing a transmission line on a route disconnected from its railroad right of way. p. 219.</p> <p>5. Eminent Domain.—Sired Railroads.—Transmission -Lines.— Public Vse.—The condemnation, by a lessee street railroad company, of a right of way for a transmission line, as authorized by §546Sa Burns 1905, Acts 1903, p. 92, §1, constitutes a taking for a public use. p. 220.</p> <p>6. Pleading.—Complaint.—Description.—Eminent Domam.—Street Railroads.—A complaint, by a lessee street railroad company, to condemn a right of way for a transmission line, and which describes the land sought to be appropriated as a strip six and one-half feet, wide lying immediately north of, and adjoining a certain railroad company’s right of way through a certain quarter section, sufficiently describes the land sought to be appropriated. p. 220.</p> <p>7. Constitutional Law.—Statutes.—Titles.—Subject.—Section 19, Art. 4, of the Constitution, requiring that every act shall embrace • but one subject and matters properly connected therewith; which subject shall be expressed in the title thereto, was designed to prevent the combining of unrelated subjects, thus compelling legislators' to accept obnoxious provisions in' order to enact beneficial laws. p. 222.</p> <p>8. Words and Phrases.—“Subject.”—“Matters.”—Constitutional Law.—The word “subject,” as used in article 4, §19, of the Constitution, providing that “every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title,” refers to the thing about which legislation is had, and the word “matters” includes subordinate and incidental things related to the subject, p. 222.</p> <p>9. Constitutional I,aw.—Statutes.—Title.—Street Railroads.— The title to the street railroad act of 1903 (Acts 1903, p. 92), reading in part: “An act to amend sections one (1), four (4), and five (5) of an act entitled ‘An act concerning street railroad companies, granting additional rights and powers therein specified and matters relating thereto,’ ” is sufficiently broad to cover provisions for the acquiring, by such companies, of ground for the construction of transmission lines for heat, light and power, p. 222.</p> <p>10. Same.—Statutes.—Title.—Construction of Words Used.—The words of the title to a statute will be given a liberal interpretation aiid their broadest scope in order to bring within it the provisions of the purview of such statute, p. 222.</p> <p>11. Street Railroads.—Diterurban.-—Suburban.—Eminent Domain. —Statutes.—The use of the words “interurban” and “suburban” in the act of 1903 (Acts 1903, p. 92, §5468a et seq. Bums 1905) does not affect the right therein granted to street railroad companies to construct, own and operate interurban and suburban railroads, p. 223.</p> <p>12. Nuisance.—-Transmission Lines.—Street Railroads.—Statutory Sanction.—A street railroad company’s transmission line, authorized. by a valid act oí the legislature, does not constitute a nuisance per se. p. 223.</p> <p>13. Damages.—Transmission Lines.—Street Railroads.—The damages recoverable for the condemnation of lands for a street railroad company’s transmission line, include the value of the land appropriated, together with such damages as result from the proper construction and operation of such line. p. 223.</p> <p>14. Same.—Street Railroads.—Transmission Line.—Negligent Operation.—Damages occurring by reason of the negligent operation of a street railroad company’s transmission line are recoverable in an independent action, and not as a part of the damage for the appropriation of the right' of way for such line. p. 223.</p>

<p>From Superior Court of Marion County (69,152) ; Vinson Carter, Judge.</p> <p>Action by the State of Indiana, on the relation of the Mutual Protective League, against Warren Bigler, as Auditor of State of the State of Indiana. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading.—Demurrers.—Form of.—Joint or Several.—A demurrer alleging that “the defendants and each of them separately demur to the plaintiff’s complaint, herein, for each of the following reasons,” is several, p. 231.</p> <p>2. Parties.—Townships.—Interurban Railroads.—Injunction.—Taxation.—Subsidies.—In a suit by a taxpayer against the county treasurer to enjoin the collection of an interurban railroad subsidy tax, the beneficiary company and the civil township upon whose property the tax was levied, are proper parties, p. 231.</p> <p>3. Constitutional Law.—Statutes.■—Bnaetinff Clauses.—The statute (Acts 1903, p. 233) having an enacting clause in form: “Be it enacted by the General Assembly of the State of Indiana,” is not in conflict with the Constitution (Art. 4, §1), requiring the Style of every law to be precisely in those words, p. 232,</p> <p>4. Constitutional Law.—Statutes.—Amendments.—The act of 1903 (Acts 1903, p. 233, §5465 Burns 1908), providing that the word “railroad,” as used in prior statutes, shall be held to include interurban, suburban and street railroads, is not an amendment to such prior statutes, and is constitutional, p. 232.</p> <p>5. Words and Phrases.—“Amend.”—Constitutional Law.—The word “amend” as used in the Constitution (Art. 4, §21), providing how acts shall be amended, means to correct, reform, change or modify, p. 233.</p> <p>6. Statutes.—Supplemental.—What Are.-—A supplemental act is one that adds something to the original statute without cutting down any of its provisions, pp. 233, .237.</p> <p>7. Constitutional Law.—Statutes.—Supplemental.—The enactment of supplemental statutes is not prohibited by the Constitution. pp. 233, 237.</p> <p>8. Same.—Powers of Legislature.—Interpretations of.—In determining whether the legislature had the constitutional right to enact certain statutes, the legislature’s interpretation of its power is entitled to great weight, p. 234.</p> <p>9. Same.—Statutes.—Supplemental.—Title.—A supplemental act must be germane to the subject-matter of the original act, and must be such as would be clearly embraced within the title of such original act. p. 235.</p> <p>10. Same. — Statutes. — Tille. — Construction of. — The courts, in order to sustain the constitutional validity of an act, will give to the words of the title thereof their most liberal meaning; and if the words are capable of two constructions, one rendering the act vali'd, and the other invalid, the former construction will prevail, p. 235.</p> <p>11. Words and Phrases.'—“Railroad.”—Statutes.—The word “railroad,” as used in our statutes, imports a road of a quasi-public character, constructed with fixed metallic rails and upon which carriages or cars are transported for the purpose of carrying passengers or freight, p. 235.</p> <p>12. Railroads.—Meaning of.—Statutes.—The word “railroad” is a generic term, and as used in general statutes, includes all kinds of public-service roads composed of fixed metallic rails upon which are transported cars containing passengers or freight, p. 236.</p> <p>13. Constitutional Law.—Statutes.—Supplemental.—Title.—The title of a supplemental act needs only to identify clearly the act to which it is supplemental, the title of the original act being decisive whether the matter contained in such supplemental act is properly covered, p. 238.</p> <p>14. Same.—Statutes.—Legislative Interpretation of, by Sitbsequent Act.—Title.—A subsequent act, providing a rule of construction for a prior act, and which is not in terms amendatory, and which is covered by the title of the original act, is not governed by the constitutional provisions (Art. 4, §21), providing that no act shall be amended by a mere reference to its title, p. 238.</p> <p>15. Statutes.—Construction.—Application to Subsequent Conditions.—The general rule of construction permits the application of general statutes to conditions arising subsequently, and which were unknown at the passage of the statutes, p. 239.</p>

<p>Law.—Under §18S0 Burns 1905, Acts 1905, pp. 584, 637, §239, confessions made under inducement, with the circumstances thereof, are admissible against the defendant, except when procured by threats, intimidation or undue influence, p. 241. 1. Evidence. — Confessions. —• Inducement. — Statutes. — Criminal</p> <p>2. Same.—Confessions.—Voluntary.—Presumptions.—The presumption is that a confession was voluntarily made. p. 242.</p> <p>3. Same.—Confessions.—Admissihility.—Weighing Evidence.—Appeal.-—The trial court’s decision on the admissibility of a confession, made upon conflicting evidence, will not be disturbed on. appeal, p. 242.</p>

<p>1. Indictment and Information. — “Unlawfully" Maintaining Liquor Mouse.—Nuisance.—Tbe word “unlawfully,” as used in an indictment charging that defendants “did then and there * * * unlawfully erect, continue, use and maintain a certain building” for the unlawful sale of liquor, adds nothing to the indictment, p. 244.</p> <p>2. Intoxicating Liquors.—Sales.—Wholesalers.—Prior to 1907 wholesale dealers in liquors could lawfully sell, in quantities of five gallons or more, to other wholesalers, jobbers, retailers or consumers, p. 245.</p> <p>3. Indictment and Information.—Nuisance.—Sales of Intoxicating Liquors.—An indictment charging that a wholesaler main-tamed a house wherein he sold liquors in quantities of five gallons and more to persons who were not retailers would be insufficient, even if it should be a crime to sell in such quantities to consumers, since the sales might have been to jobbers and other wholesalers, p. 245.</p> <p>4. Indictment and Infoemation.—Nuisance.—Keeping Rouse for Sales of Liquor.—An indictment charging defendant with keeping a house “for” the unlawful sales of liquors is not a charge that defendant did unlawfully sell liquors at such place, p. 245.</p> <p>5. Same.—Nuisance.—Selling Liquors Unlawfully. — Noise. — Im-morality.—An indictment charging defendant with unlawfully maintaining a nuisance consisting of a house wherein liquors were sold unlawfully and wherein great noise and offensive odors were permitted and immorality practiced, to the annoyance of the public, must allege the facts affirmatively, mere recitals being insufficient. p. 246.</p> <p>C. Same.—Sufficiency.—Purpose.—An indictment should charge the facts with such certainty as to inform the defendant of the nature of the offense preferred and also to 'make the record show the crime for which he was put in jeopardy, p. 246.</p>

<p>1. Negligence.—Coal Mines.—Statutes.—The purpose of our recent mining statutes was to provide more effectively than at the common law for the safety and legal protection of miners, p. 251.</p> <p>2. Same.—Coal Mines.—Statutes'.—Violation.—The violation of the mining laws, by the master, constitutes negligence per se. pp. 252, 250.</p> <p>3. Master and Servant.—Coal Mines.—Mining Boss.—Vice-Principal.—In 'the operation of a coal mine, the master is under the continuing statutory duty of keeping the mine in a reasonably safe condition; and the performance of such duty cannot be delegated to a mining boss so as to relieve the master, p. 252.</p> <p>4. Same.—Coal Mines.—Mining Boss.—Negligence of.—The negligence of the mining boss, under the coal mining statutes, renders the master liable, p. 253.</p> <p>5. Pleading.—Complaint.—21 aster and Servant.—Coal 2Iines.— Safe Place.—A complaint alleging that defendant coal company directed plaintiff to mine coal in- a certain room; that the mining boss’failed to inspect such room at least once every alternate day; that by reason thereof the roof of the room became dangerous between the props and the face of the coal which was gradually receding as it was worked, and a large stone fell upon plaintiff injuring him, sufficiently shows that the injury occurred at a place where defendant was required to use props, p. 253.</p> <p>6. Same.—Complaint—Master and Servamt.—Coal 21ines.—Safe Place.—A complaint for damages for injuries to a coal miner, caused by the fall of a stone from the roof of the room wherein such miner was excavating coal by machinery, is not bad because of an inference that the roof at the place between the props already sot and the face of the coal could not be propped on account of the work therein, since such roof could be safeguarded otherwise, the statute (§7470 Burns 1901, Acts 1891, p. 57, §19) requiring of the masters, that as the miners advance in their work all loose coal, slate and rocks shall be carefully secured from falling, pp. 254, 258.</p> <p>7. Same.—Demurrer.—Inferences.—A demurrer to a complaint admits the facts well pleaded together with all reasonable inferences therefrom, p. 255.</p> <p>S. Same.—Complaint.—Statutory Right.—A complaint alleging, in substance, that defendant failed to comply with the provisions of a statute made for plaintiff’s protection, is usually sufficient, p. 255.</p> <p>9. Master and Servant.—Assumed Rislcs.—Contributory Negligence.—Pleading.—Assumption of risk and contributory negligence, in cases of the violation of statutes prescribing certain duties for masters, are matters of defense, p. 255.</p> <p>10. Master and Servant.—Goal Mines.—Inspection.—Contributory Negligence.—A coal miner is not guilty of contributory negligence because of his failure to tap on the roof of his room to detect whether the overhanging coal and stone are loose, there being no obvious defect, p. 258.</p> <p>11. Same.—Defective Ways and Works.—Notice.—Masters are. charged with notice of defects discoverable by the exercise of ordinary care. p. 200.</p> <p>12. Evidence.—Exclusion.—Harmless Error.—It is not error to exclude evidence which has already been admitted, nor to exclude evidence which could not affect the result, p. 2G0.</p>

Prom Kosciusko Circuit Court; Lemuel W. Boyse, Judge pro tern. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Kosciusko, against Oliver P. Smith and others. Prom a judgment for plaintiff, defendants appeal.

<p>Prom Dekalb Circuit Court; Frank M. Powers, Special Judge.</p> <p>Prosecution by the State of Indiana against Samuel Goodwin. Prom a judgment for defendant, the State appeals.</p>

<p>1. Mandamus.—Another Adequate Legal Remedy.—Mandamus does not lie where the relator has another adequate legal remedy, p. 271.</p> <p>2. Same.—Office.—Title.—Contest.—Mandamus does not lie to try the legal title to an office, p. 272.</p> <p>3. Same.—Office.—Possession.—Mandamus lies on behalf of a person having a prima facie right to an office, to obtain the possession thereof, p. 272.</p> <p>4. Officers.—Successors.—Contests.—It is the duty of an officer to yield possession of his office to a person having the prima facie right thereto; and if such officer then desires to contest the title to the office he must proceed in the manner prescribed for contesting claims thereto, p. 272.</p> <p>5. Mandamus. —Parties.—Toion Trustees.—Where a person holds a prima facie right to the office of town trustee, and the incumbent, with the assistance of other trustees, refuses to deliver the possession of the office upon demand, the trustees so assisting are proper parties defendant with the incumbent in an action in mandamus for the possession of such office, p. 273.</p> <p>6. Same.—Parties.—Personal or Official Capacities.—Town Trustees.—The incumbent and other town trustees joining to prevent the town trustee-elect’s induction into office are liable personally to an action in mandamus for the possession of such office, p. 273.</p> <p>7. Pleading.—Striking Out Part of Answer.—Proving Pacts Under Another.—The striking out of a part of a paragraph of answer is harmless, where the facts therein alleged were proved under another paragraph, p. 274.</p> <p>8. Mandamus. — Town Trustees. — Ineligibility. — Removal from Ward.—Whether the removal from his ward of a town trustee-elect after demand for his office and before trial disqualifies him from holding the office cannot be tried in his action in mandamus for the possession of such office, p. 274.</p>

From Elkhart Circuit Court; James S. Dodge, Judge. Drainage proceeding by John J. Kline and others, against which U. S. Grant Hagey and others remonstrate. From a judgment for remonstrants, petitioners appeal.

Original action, in the Appellate Court, by the State of Indiana, on the relation of the Columbus Street Railway & Light Company, against William E. Deupree, as judge of the Brown Circuit Gourt. Prom an order of the Appellate Court (see 40 Ind. App. 492) commanding respondent to settle and sign a bill of exceptions, he petitions for a transfer of said action under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Pleading.—Complaint.—Negligence.—Joint or Several Acts of.— Interurban Railroads.—A complaint alleging that the defendant interurban railroad company negligently placed an inexperienced motorman in charge of one of its cars and negligently placed such motorman in charge of such car when he was unfit to work on account of overwork, and loss of sleep, to plaintiff’s damage, shows two acts of negligence, the proof of either of which entitles plaintiff to a verdict, p. 286.</p> <p>2. Master and Servant.—Interurban Railroads.—Incompetent Servants.—An interurban railroad company which knowingly places an incompetent and overworked motorman, who has lost a great deal of sleep, in charge of one of its cars, and he causes a collision which injures another motorman, is liable, p. 287.</p> <p>'3. Interurban Railroads.—Collisions.—Ovemoorlced Motonnen.— Interrogatories.—Answers to interrogatories showing that an interurban railroad company knowingly placed an overworked motorman, who had lost a great deal of sleep, in charge of one of its cars, and by reason of such motorman’s condition he caused a collision with the rear end of another car stopped to discharge passengers, thereby injuring the motorman of the forward ear, do not exonerate the company, though the rear motorman violated the rules in causing such collision, p. 289.</p> <p>4. Evidence.— Admissions.— Interurhan Railroads.— Superintendents.—Admissions, made by an interurban railroad company’s superintendent, when the employes concerned were making their reports of the accident producing the injuries complained of, that he, the superintendent, “should have known better than to put” the motorman, who caused the injury, on the car, are not admissible as against the company, in an action growing out of such accident, p. 289.</p> <p>5. Same.—Incompetent.—Injury.—Presumptions.—The admission of incompetent evidence is presumed to be prejudicial to the objecting party, p. 290.</p>

<p>1. Statutes.—Construction.—In the construction of a statute, the courts, while looking at the ordinary meaning of the language used, will also examine the whole act, the'several parts thereof, the objects sought to be accomplished, the legislative intent and the history connected with the enactment thereof, p. 293.</p> <p>2. Same.—Construction.—Cities and Towns.—Treasitrers.—In construing the cities and towns act of 1905 (Acts 1905, p. 219, §3402 et seq. Burns 1905) so far as it relates to city treasurers in county seat cities, it should be remembered that two systems for collecting and disbursing taxes are not convenient nor economical and that it is convenient for public business that all cities have a local treasurer to receive and disburse the revenues, p. 293.</p> <p>3. Municipal Corporations. — Tames. — Collection of. — County Treasurers.—It is the duty of county treasurers to collect all state, county, township, city and town taxes within their respective counties, and to turn over such city and town taxes to the proper city and town treasurers, except that in county seat cities of the first, second and third classes the county treasurer shall be em officio city treasurer, p. 293.</p> <p>4. Same.—City Treasurers.—The cities and towns act of 1905 (Acts 1905, p. 219. §3462 et seq. Burns 1905) did not abolish the office of city treasurer, except as to county seat cities of the first, second and third classes, though it relieved such officers from the duty of collecting the regular city taxes, p. 299.</p> <p>5. Constitutional Law.—Officers.—Additional Duties.—Demanding Services Without Compensation.—Class Privileges.—Section 3632 Burns 1905, Acts 1905, p. 219, §207, providing extra compensation for county treasurers for services rendered in the collection and disbursement of taxes of cities of certain classes within their respective counties, is not in conflict with the constitutional provision (Art. 1, §21) providing that individual services shall not be exacted without just compensation, or with the constitutional provision (Art. 1, §23) forbidding the granting of unequal privileges, because, for the performance of such duties for cities of other classes, it provides that no additional compensation shall be received, p. 300.</p> <p>6. Fees and Salaries.—Powers of Legislature.—Officers.—Accept-mg Office.—The legislature may, on creating an office, fix the compensation of the officer either by fees, salary or both; and a person accepting such office takes it with its burdens, and impliedly agrees to perform its duties for the prescribed compensation. p. 300.</p>

<p>t. Appeal.-—Briefs.—Waiver.—Points not discussed are waived, p. 303.</p> <p>2. Homicide.—Evidence.—inferences.—Question for Jury.—Where the evidence in a homicide case is of such character that it is capable of two inferences—one of guilt, the other of innocence— the question of which inference has been established, is for the jury. p. 310.</p> <p>3. Appeal.—Weighing Evidence.—The Supreme Court will not weigh conflicting evidence, p. 311.</p> <p>4. Homicide.—Evidence.—Evidence showing that the'accused was a brother-in-law of deceased; that deceased’s wife, the accused and his two half-brothers had numerous contentions with deceased.and on various occasions had assaulted him; that they had oppressed and threatened him; that deceased, with two pistol shots in his head, from a pistol of the same caliber as accused’s, was found, in a pond weighted with a stone taken from near deceased’s house, at which point blood was found; that' the chain fastening the stone to the body looked like one used by the wife, who was living apart from deceased; that such persons took no part in the search, making many incriminating admissions, 'and committing many suspicious acts, supports a verdict of guilty, p. 311.</p> <p>5. Evidence.—Homicide.—Conspiracy.—Separate Crimes.—On a trial for homicide, evidence of an assault upon deceased by a conspirator, while accused and such conspirator were engaged in forcibly taking hay from deceased, is admissible as against accused, especially where he acquiesced in such assault and assisted in the defense of such conspirator, p. 311.</p> <p>6. Same.— Homicide.— Conspiracy.— Separate Crimes.— Motive.— On a trial for homicide by conspiracy, evidence of a separate assault committed by one conspirator upon the deceased, in the furtherance of an alleged common, design of depriving the deceased of his property, is admissible against the accused as tending to show the motive l'or the homicide, p. 312.</p> <p>7. Same.—Homicide.—Conspiracy.—¿Lois of Go-conspirators.—After prima facie proof of a conspiracy, evidence of the separate acts of the conspirators is admissible as against the one on trial, p. 313.</p> <p>8. Same.—Conspiracy.—Circumstantial Evidence.—A conspiracy may be established by circumstantial evidence, p. 313.</p> <p>9. Same.—Conspiracy.•—Acts of Conspirators.—Where a conspiracy is formed to do an unlawful act, or to do a lawful act by unlawful means, the separate acts of the conspirators are admissible in evidence against one or all of such conspirators, p. 314.</p> <p>10. Same.—Admission.—Harmless.—The admission of incompetent evidence, where harmless, is not ground for a reversal, p. 314.</p> <p>11. Appeal.—Right Result.—Technicalities.—-Where a right result is reached, technical errors will be disregarded, p. 315.</p>

<p>Constitutional Law.—Corporations.—Partnerships.—Wages.—Payment of.—Class Legislation.—Sections one and two of the act of 1885 (Acts 1885, p. 36, §§7050, 7057 Burns 1901), providing that “every company, corporation or association * * * be required to make full settlement with, and full payment in money to its employes, engaged in manual or mechanical labor * * * at least once in every calendar month,” and if not so paid “said company, corporation or association shall be liable to a penalty,” are in violation of the 14th amendment of the Constitution of the United States, since they impose no burden upon individuals engaged in the same business under similar circumstances. Bedford Quarries Co. v. Bough, 168 Ind. 671, followed.</p>

Prom Porter Circuit Court; Willis C. McMahan, Judge. Action by Mary L. Lawrence, as administratrix of the estate of Lewis P. Lawrence, deceased, against 'the Chicago & Erie Railroad Company. Prom a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901, p. 590.

<p>Prom Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Suit by the South East & St. Louis Railway Company and another against the Evansville & Mt. Vernon Electric Railway Company. Prom a decree for defendant, plaintiffs appeal.</p>

<p>1. Constitutional Law.—Corporations.—Special Acts.—Amendments.—The constitutional provision (Art. 11, §13) inhibiting the creation, by special act, of corporations other than banking, should be interpreted so that it shall be impossible, by special law, to alter the existing charter of a corporation, created by special act prior to 1851, so as to make it virtually a new corporation, p. 350.</p> <p>2. Words and Phrases.—“Create.”—Constitutional Lano.—The word “create,” as used in the Constitution (Art. 11, §13), providing that “corporations, other than banking, shall not be created . by special act,” includes not only a literal creation, but also a fundamental change in the charter of the corporation, p. 350.</p> <p>3. Corporations.—Capital StocJc.—Change of.—Statutes.—A change in the amount of the capital stock of a corporation cannot be made without clear statutory authority, p. 350.</p> <p>4. Constitutional Law. — Corporations. — Creation hy Special Statute— The act of 1873 (Acts 1873, p. 102), permitting the stockholders to increase the capital stock of a private corporation chartered by special act of the legislature of 1832 (Acts 1832, p. 144), is unconstitutional, as in violation of the Constitution (Art. 11, §13) providing that “corporations, other than banking, shall not be created by special act.” p. 350.</p> <p>5. Corporations—Subscription to Capital Stock.—Contracts.—Consideration.—A subscription to the capital stock of a corporation is unenforceable, where such corporation has no legal capacity to issue the stock, p. 351.</p> <p>6. Same.—Capital Slock.—Unpaid Subscriptions.—Collection of.— Estoppel.—Receivers.—Where the corporation had no power to issue the stock, the receiver of an insolvent corporation cannot enforce its unpaid stock subscriptions on the ground that the subscribers were estopped, because of their conduct, from asserting such incapacity, p. 351.</p> <p>7. Same.—Capital Stock.—Misrepresentations of.—Fraud.—Torts. —Action.—Creditors, who have been defrauded by reason of misrepresentations as to the capital stock of a corporation may maintain an action in tort for damages against the individuals making such misrepresentations, p. 353.</p> <p>S. Same.—Be Facto.—Unconstitutional Statute.—An unconstitutional statute purporting to authorize a corporation to increase its capital stock is an absolute nullity, p. 358.</p> <p>9. Same.—Capital Stock.—Increase of.—Statutes.—Insurance.—An insurance company chartered by special act in 1832 (Acts 1832, p. 144) which increases its capital stock by virtue of the invalid, special, amending statute of 1873 (Acts 1873, p. 162) cannot justify such increase under §4840 Burns 1894, §3709 B. S. 1881, providing that insurance companies “organized under this act” may increase their capital stock, nor under §3449 Burns 1901, Acts 1883, p. 135, §5, providing for the increase of the capital stock of the specially chartered corporations accepting same, since the corporation involved attempted to operate only under said act of 1S73. p. 358.</p> <p>10. Same.—Capital Stock.—Validity.—Subscriptions.—Assumption of Payment of.—Bills and Notes.—The assumption of the payment of notes given for shares of the capital stock of a corporation creates no liability, where the corporation had no legal capacity to issue such stock, p. 359.</p> <p>11. Appeal.—Special Findings.—Omissions.—Evidence.—Judgment. —Amendments.—A judgment rendered upon special findings which omit a fact the truth of which appears uncontradicted in the evidence will be upheld by the Supreme Court, the defect being one of form which should be deemed as amended, on appeal, by virtue of §700 Burns 1908, §658 B. S. 1881, providing that no case shall be reversed on account of defects ajnendable in the trial court, p. 359,</p> <p>12. Corporations.—Stock.—Invalid.—Evidence.—Where the charter of a private corporation authorized its capital stock to be $100,000, and a subsequent unconstitutional act authorized an increase to $200,000, evidence of a subscription for $120,000 of the capital stock affirmatively shows that the corporation had exceeded its authority, whether such subscription related to the original or subsequent issue, p. 360.</p>

<p>1. Schools.—Licenses to Teach—Contracts.—A license to teach school is not of a contractual nature, and statutes authorizing the issuance thereof may be repealed at the pleasure of the legislature. p. 365.</p> <p>2. Constitutional Law.—Schools.—Licenses.—Rights Conferred.— Section nine of the act of 1899 (Acts 1899, p. 240, §6393 Burns 1908), providing that county superintendents shall have power to revoke teachers’ licenses for incompetency, immorality, cruelty or general neglect, and that such revocation shall terminate a teacher’s employment in school work, is not in violation of the constitutional provision (Art. 1, §12), providing that for injury done to a man, “in person, property or reputation” he shall have a remedy by due course of law. p. 365.</p> <p>3. Same.—Police Power.—Private Property.—Schools.—Licenses.— Section nine of the act of 1899 (Acts 1899, p. 240, §6393 Burns 1908), providing that county superintendents shall have power to revoke teachers’ licenses for incompetency, immorality, cruelty or general neglect, and that such revocation shall terminate a teacher’s employment, being in the exercise of the police power, is not in violation of the constitutional provision (Art. 1, §21), providing that “no man’s particular services, nor his property shall be taken by law without just compensation.” p. 366.</p> <p>4. Same.—County Superintendents.—Judicial Powers.—Schools.— Licenses.—Section nine of the act of 1899 (Acts 1899, p. 240, §6393 Burns 1908), providing that the county superintendents, upon a trial, may revoke teachers’ licenses, not conferring the exercise of true judicial power, is not in violation of the constitutional provision (Art. 3), providing that the powers of government shall be divided into the legislative, the executive, including the administrative, and the judicial departments, p. 366.</p> <p>5. Schools.—Licenses.—Revocation.—Bstoppel.—A school teacher accepting a license to teach under the school laws of this State, Is not thereby estopped from applying to the courts for the enforcement of his rights thereunder, §6379 Burns 1908, Acts 1899, p. 240, §4, expressly reserving the right to apply to the courts for relief, p. 367.</p> <p>6. Schools.—Licenses. — Revocation. — Grounds for. — Statutes.— Equity.—Injunction.-—Where a statute enumerates the causes for which a teacher’s license may, be revoked, such enumeration excludes all other grounds; and a court of equity may restrain a . revocation sought to be founded upon a cause not so enumerated, p. 367.</p> <p>7. Same.—Licenses.—Revocation.—Procedure.—Appeal.—A county superintendent has the legal right to determine charges for the revocation of a teacher’s license, where the charges are fairly included in the statute providing for such revocation, the teacher’s remedy being an appeal to the state superintendent, p. 368.</p> <p>8. Same.—Licenses.-—-Revocation.—Township Institutes.—Failure to Attend.—Teachers are required to attend township institutes, and for neglect thereof their licenses may be revoked, p. 368.</p> <p>9. Injunction.—Licenses.—Revocation.—Imperfect Charges. — Injunction does not lie to prevent the revocation of a teacher’s license, on the ground that the charges were not sufficiently specific, the remedy being by motion in the original cause, p. 368.</p> <p>10. Schools.—Licenses.—Revocation.—Charges.—Neglect of Dtity. —Charges showing that a school teacher refused to attend the township institutes, or the county institute, and that he made no daily preparation for teaching, are sufficient to give the county superintendent the right to proceed to a hearing, and, in case of revocation, the teacher’s remedy is an appeal, p. 369.</p> <p>11. Same.—Licenses.—Revocation.—Bias of County Superintendent. —Jurisdiction.—Injunction does not lie to prevent a county superintendent, having jurisdiction, from trying a proceeding for the revocation of a teacher’s license, on the ground that such superintendent is biased and has no judicial capacity, p. 369.</p>

<p>Prom Dekalb Circuit Court; Emmet A. Bratton, Judge.</p> <p>Action by A. John Freeze against the Baltimore & Ohio Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Superior Court of Marion County (72,555) ; James' M. Leathers, Judge. Suit by the Princess Amusement Company against Robert Metzger, as chief of police of the City of Indianapolis, and others. From a judgment for defendants, plaintiff appeals.

<p>1. Criminal Lw.—Plea of Not Guilty.—Former Jeopardy.—Evidence of.—Under a plea of not guilty, evidence of a former jeopardy is admissible, p. 3S5.</p> <p>2. Same.—Former Jeopardy.—Discharge by United States Commissioner.—A discharge of the accused by a United States commissioner does not amount to an acquittal, p. 385.</p> <p>3. Same.—Plea in Abatement.—■'Waiver.—The right to plead in abatement of a criminal prosecution that the affidavit upon which the prosecution was based was filed in the circuit court while the grand jury was in session, is waived by the previous filing of a plea of not guilty, p. 386.</p> <p>4. Same.—Plea in Abatement.—Errors in Rulings On.—I-Iow Saved. —Alleged errors in the hearing on a plea in abatement must be raised by the filing of a motion for a new trial on such plea and by making the alleged errors reasons for such new trial, p. 380.</p> <p>5. Same.—Informations.—Time of Filing.—Grand Jury.—Conspiracy.—An affidavit and information for a conspiracy to commit grand larceny may be filed during the term of court, though the grand jury was in session before the filing thereof, and was subsequent^ convoked during the same term. p. 886.</p> <p>6. Same.—Discharge of Co-conspirator to Testify for State.—Statutes.—Under §2117 Burns 1908, Acts 1905, p. 584, §241, the trial court has the right,.after the beginning of the trial, to discharge a codefendant co-conspirator and require him to testify on behalf of the State; and such action does not entitle remaining defendants to a discharge, p. 386.</p> <p>7. Trial,—Misconduct- of Counsel—A new trial should not be granted on account of the misconduct of counsel in the argument to the jury, where the complaining party took no steps at the time to have the jury discharged or admonished, p. 387.</p> <p>8. Same.—Netr Trial.—Instructions.—No question can be raised upon an erroneous instruction, unless the giving of such instruction is made a ground for a new trial, p. 387.'</p> <p>9. Larceny.—Conspiracy to Commit.—Obtaining Money by Trick. ■—Evidence of an agreement to obtain money by artifice or trick supports a judgment of conviction for a conspiracy to commit grand larceny, p. 388.</p>

<p>1. Ckiminal Law.—Defenses.—Duress.—Tbe danger necessary for justifying tbe commission of an act wbicb otherwise would constitute a crime, must be present, imminent, impending, unavoidable, and must subject the person committing the act to death or grievous bodily harm upon his refusal to commit such act. p. 390.</p> <p>2. Evidence.—Duress.—Criminal Law.—Arson.—Evidence of accused’s mental weakness, want of will power and threats, unconnected with other proof, is not admissible to prove duress sufficient to justify the burning of a dwelling, otherwise constituting arson, p. 392.</p> <p>3. Same. — Duress. — Threats.—Criminal Law.—Arson.—Evidence that a short time before the burning of a dwelling, by the accused, a third person drew his revolver and threatened to kill the accused, “thereby putting her in fear at the time,” unconnected with other evidence, is inadmissible to show that accused acted under duress in setting fire to such dwelling, p. 392.</p> <p>-1. Evidence.—Offers of Proof.—Relevancy.—In disclosing the facts to show the relevancy of proposed evidence, facts and not conclusions must be stated, p. 392.</p> <p>5. Same.—Offers of Proof.—Relevancy.—Discretion of Court.—The trial court has the discretionary right to refuse evidence the relevancy of which has not been established by the admitted evidence, until the connecting evidence has been introduced, p. 393.</p>

<p>From Washington Circuit Court; Thomas B. Buskirk, Judge. ■</p> <p>Prosecution by the State of Indiana against Johnnie Cole. From a judgment of conviction, defendant appeals.</p>

From Huntington Circuit Court,- J. Fred France, Special Judge. Highway proceeding by Henry Houser and others, against which Lydia Williamson remonstrates. From a judgment for petitioners, remonstrant appeals. Transferred from Appellate Court under §1393 Burns 1908, Acts 1907, p. 237, §2.

<p>Prom Johnson Circuit Court; W. J. Buckingham, Judge.</p> <p>Prosecution by the State of Indiana against Chris Myers. Prom a judgment of conviction, defendant appeals. Transferred from Appellate Court under §1393 Burns 1908, Acts 1907, p. 237, §2.</p>

<p>Prom Adams Circuit Court; Richard K. Erwin, Judge.</p> <p>Prosecution by the State of Indiana against Lafayette Ellis. Prom a judgment of conviction, defendant appeals. Transferred from the Appellate Court under §1393 Bums 1908, Acts 1907, p. 237, §2.</p>

<p>1. Contracts.—Railroads.—Tickets.—Limitations.—ÍEhe purchase, at a reduced rate, and acceptance of a coupon ticket limited to the use of the purchaser and the members of his family dependent upon him, constitute a contract the terms of which are binding upon both parties, p. 420. ^5</p> <p>2. Same.—Railroads.—Tickets.—Forfeitures.—Consideration.—The reduction of the regular rate of fare, in the purchase of a family coupon ticket, constitutes a sufficient consideration to support a limitation therein that the use of such ticket by others shall involve a forfeiture thereof, p. 421.</p> <p>8. Words and Phrases.—“Involves."—Railroads.—Tickets.—Forfeitures.—A condition in a family coupon ticket that the use thereof by others than the family “involves” a forfeiture thereof, imports that such unauthorized use implies, includes, or necessitates a forfeiture of such ticket, p. 426.</p> <p>4. Waiver.—Railroads.—Limited Tickets.—Breach.-—A railroad company cannot be held to waive the breach of a condition in a family coupon ticket, unless such company has knowledge of such breach, p. 426.</p> <p>5. Railroads.—Bjection of Passenger.—Forfeited Ticket.—Wrong Reason Assigned.—The expulsion of a passenger by a railroad conductor because of the alleged expiration of the family coupon ticket on which such passenger was riding is not wrongful, where it is shown that such ticket had become forfeited for the misuse thereof, though the conductor at the time of the expulsion was ignorant of such misuse, p. 427.</p> <p>6. Abpeal.—Briefs.—Points.—Alleged objections to the transcript, not mentioned in the points in the brief, will not be considered, p. 429.</p>

<p>1. Evidence.—Conspiracy.—Instructions.—Murder.—On a joint indictment of several persons for murder, evidence of a conspiracy by the defendants is admissible against tbe defendant on trial, and instructions thereon are proper, though the indictment does, not charge that the murder was committed through a conspiracy, p. 432.</p> <p>2. Trial.—Instructions.—Conspiracy.—Circumstantial Evidence.— The State, in a criminal case, is entitled to instructions on the law of conspiracy, though the evidence thereof is purely circumstantial. p. 433.</p> <p>3. Same.—Instructions.—Reasonable Doubt.—Presumption of Innocence.—Criminal Law.—An instruction that the rule of reasonable doubt “throws around the defendant the presumption of innocence, and requires the State to establish, beyond a reasonable doubt, every material fact averred in the indictment” but that the rule was “not intended to shield those who are actually guilty from just and merited punishment,” .and that such rule is “for the protection of the innocent,” is not misleading and does not authorize the jury to determine defendant’s guilt before the beuefit of the rule is extended to him. p. 434.</p> <p>4. Same.—Evidence.—Weight of, for Jury.—The weight and probative force of circumstantial evidence is a question for the jury, p. 437.</p> <p>5. Evidence.—Declarations of Co-conspirators.—Conspiracy.—Declarations oí co-conspirators are not ordinarily admitted in evidence against the accused until a prima facie conspiracy has been shown, though such conspiracy may be inferred from facts and circumstances proved, as well' as by direct testimony thereof; but such proof may be introduced upon the prosecutor’s undertaking to supply the proof of such conspiracy later in the trial, p. 437.</p> <p>6. Same.—Impeaching.—Contradiction.—Witnesses. — Hostility. — On a trial for murder, a witness for the accused may be asked on cross-examination as to the state of her feelings toward the deceased, and, if she deny any hostility, may be impeached by showing contradictory declarations to others, pp. 438, 441.</p> <p>7. Same.—III ■Feeling.—Competency.—Evidence of the ill feeling or interest, toward deceased, of a witness in a murder case is admissible as independent evidence, going to the truthfulness of the witness’s testimony, p. 440.</p> <p>8. Appeal.—Right Result.—Where a case appears to have been fairly tried upon the merits, the judgment will be affirmed, p. 441.</p>

Prom Marion Circuit Court (12,099); Henry Clay Allen, Judge. Action by Melvin L. Wilson against the National Biscuit 'Company. Prom a judgment on a verdict for plaintiff for :$4,000, defendant appeals. Transferred from Appellate 'Court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, ¡§10.

Prom Hamilton Circuit Court; Samuel B. Artman, Special Judge. Action by Elmer E. Waddington, as administrator of the estate of John H. Heckman, deceased, against the Indianapolis Union Railway Company and another. Prom a judgment for plaintiff for $10,000, defendants appeal. Appealed from Appellate Court under subd. 3, §1337j Burns 1901, Acts 1901, p. 565, §10.

<p>1. Pleading.—Complaint.—Allegations of Ownership.—Demurrer. —Admissions by.—Allegations in a complaint, by a sheriff, that the county was not entitled to certain fees, and that they were the property of such sheriff and were paid to the county for his use and benefit, are conclusions, and are not admitted as true by a demurrer to the complaint, p. 471.</p> <p>2. Fees and Salaries.—Treasurers.—Levy and Execution Sale.— Expenses.—Reimbursement.—Statutes.—Section 0527 Burns .1901, Acts 1S95, p. 319, §121, providing that county treasurers shall levy upon and sell the property of delinquent taxpayers for the payment of their taxes and that the same fees and charges shall be charged therefor as are allowed to constables for similar services, contemplates the reimbursement of such treasurers, by their counties, for the money actually needed in taking care of the property levied upon. p. 473.</p> <p>3. Statutes.—Construction.—Consideration of Other Statutes.— The purpose of construing a statute is to determine the legislative intent; and for such purpose the court will examine all parts of the statute as well as the existing or repealed statutes relating to the same subject-matter, pp. 474, 483.</p> <p>4. Statutes.—Salaries.—Treasurers’ Demand Fees.—Ownership.— Sections 6525, 6527 Burns 1901, Acts 1897, p. 171, §1, and Acts 1895, p. 319, §121, providing that county treasurers shall collect delinquent taxes, charging therefor certain fees, construed with §6530 Burns 1901, Acts 1895, p. 319, §124, providing that such fees shall be paid into the county treasury and shall constitute the “treasurer's fund,” and §6426 Burns 1901, Acts 1895, p. 319, §21, providing that the officers therein named •shall receive the salaries therein provided but no fees, except as otherwise provided, give treasurers no right to the demand and levy fees charged in the collection of delinquent taxes. Town of Paoli v. Charles, 164 Ind. 690, limited, pp. 475, 478, 484.</p> <p>5. Same.-—Implications.—That which is within the intent, though not within the letter, of a civil statute is held to be governed thereby, p. 477.</p> <p>6. Same.—Treasurers. — Fees. — Demand. — Levy. — Under §8571 Burns 1905, Acts 1903, p. 49, §21, county treasurers are required to charge and collect a demand fee of fifty cents upon all delinquents, and a levy fee of twenty-five cents in addition thereto, where a levy is made. p. 481. “</p> <p>7. Appeal.—Mandate.—Death.—In case of the death of a -party after submission and before a decision on appeal, the mandate will be made to operate as of the date of submission, p. 482.</p> <p>8. Statutes.—Construction.—Mischief Remedied.—That construction of a statute will be given which will correct the mischief intended to be remedied, p. 483.</p> <p>9. Same.—Construction.—Subsequent Statutes.—Consideration of. —Neither the act of 1901 (Acts 1901, p. 309, §3884a Burns 1901), providing that in certain counties the county treasurers shall receive the fees for the collection of delinquent taxes “in addition to” the salaries provided by law, nor the act of 1903 (Acts 1903, p. 49, §8571 Burns 1905). increasing such fees, shows a legislative construction of the act of 1895 to the effect that all treasurers should receive such fees in addition to their salaries, pp. 484, 487.</p> <p>10. Same.—Construction.—Subsequent Statutes.—The act of 1907 (Acts 1907, p. 502, §7319 et seq. Burns 1908), increasing the salaries of county treasurers and providing that existing laws shall not otherwise be affected, does not give such treasurers the right to the fees for collection of delinquent taxes in addition to their salaries, p. 485.</p>

<p>1. Statutes.—Subsequent Change.—Crimes.—Procedure.—A prosecution based upon acts committed in 1904 was not affected nor •governed by the act of 1905 (Acts 1905, p. 584, §1806 et seq. Burns 1908) codifying the law of crimes and criminal procedure, p. 491.</p> <p>2. Blackmailing.—Definition.—The crime of blackmailing consists in the extortion from another of money or thing of value by means of menaces of personal injury or by threats of accusing another of crime or of conduct which, if true, would tend to degrade and disgrace, p. 492.</p> <p>3. Indictment and Information.—Conspiracy to Commit Felony. —An indictment for a conspiracy to commit a felony must set forth the elements of the felony intended as fully as an indictment for such felony itself, p. 492.</p> <p>4. Evidence.—Guilty Knoioledge.—Intent.—Other Similar Crimes. —In a prosecution for conspiracy to blackmail, evidence concerning other alleged conspiracies to blackmail, engaged in by defendant, is admissible as tending to show guilty knowledge, intent and motive, p. 492.</p> <p>5. Trial.—Instructions.—Limiting Evidence.—Conspiracy to Blackmail.—Similar Crimes.—An instruction in a prosecution for conspiracy to blackmail, charging that the evidence of defendant’s commission of other similar crimes was not evidence that the conspiracy charged was formed, but that such evidence should only be considered to determine intent and motive, and then only ■ after the jury were convinced beyond a reasonable doubt that the alleged conspiracy had been formed, is correct, p. 493.</p> <p>¡6. Evidence.—Letters.—Conspiracy to Blackmail.—In a prosecution for conspiracy to blackmail by the use of verbal threats, a letter, written by defendant to the prosecuting wdtness, calling for an immediate meeting between such witness and defendant for the purpose of an alleged settlement, is admissible to illustrate the purpose of the meeting held in accordance therewith, and as throwing light on the statements made thereat, p. 493.</p> <p>7. Same.—Acts and Declarations of Conspirators.—After prima facie proof of a conspiracy, the acts and declarations of conspirators, in pursuance of the plan and with reference to the common object, are admissible against any one thereof; and the rule is the same regardless of when one becomes a party to such conspiracy, p. 498.</p> <p>8. Evidence.—Inducing Witnesses to be Absent from Trial.—Evidence that defendant, by his attorney or others induced, by the use of money, ■ or otherwise, adverse witnesses to absent themselves from his trial, is admissible against him. p. 499.</p> <p>9. Same.—Connivance of Defendant to Induce Witnesses to be Ab sent.—Whether the defendant connived with others to induce adverse witnesses to absent themselves from his trial is a question of fact for the jury; and the jury is not concluded by the judge’s admission of evidence admitted upon a mere prima facie showing of such connivance, the rule being the same as in cases of conspiracy, p. 5U0.</p> <p>10. Trial.—Instructions.—Procuring Absence of Adverse Witnesses.—Admissibility of Evidence for Judge.—An instruction that if the jury find that defendant was not a party to the absenting of adverse witnesses, what was said and done in reference thereto should not be considered against him, is not bad as making the jury the judges of the admissibility of the evidence, p. 500.</p> <p>11. Evidence.—Improper Relations.—Blackmail.—In a prosecution for conspiracy to blackmail, the charge being that defendant and a certain married woman extorted money, on behalf of such woman’s husband and herself, from the prosecuting witness because of alleged improper conduct with such woman, evidence of such alleged improper conduct is not admissible in defense, p. 500.</p> <p>12. Witnesses. — Cross-Examination. — Limiting. —Discretion of Trial Court.-—It is not error for the trial judge to limit the cross-examination of a witness to the subject covered by the examination in chief, the procedure being to make the witness the cross-examining party’s own, and interrogate him in chief as to such outside matters, p. 501.</p> <p>13. Same.—Cross-Examination.—Abuse of Discretion.—Appeal.— A trial judgment will be reversed for the improper limitation of the right to cross-examine only where there has been an abuse of discretion, such limitation being a matter in the legal discretion of the trial judge, p. 501.</p> <p>14. Trial.—Instructions.—Row Considered,.—The instructions in a ease must be considered in reference to each other; and if the case has been given to the jury correctly and fairly, even though some instruction standing alone would be abstractly erroneous, the case will not be reversed, pp.- 502, 505, 506.</p> <p>15. Same.—Instructions.—Insubstantial Defects.—Mere verbal inaccuracies or technical errors in instructions, or erroneous instructions not invading the substantial rights of the parties, are not ground for reversal, p. 502.</p> <p>16. Conspiracy.—Formation of.—A conspiracy may be formed Without any formal agreement, it being sufficient if the minds meet understanding!;? to bring about the agreement to do the acts and commit the offense charged, p. 502.</p> <p>17. Conspiracy.—Evidence to Sustain.■—A conspiracy may be proved by direct or circumstantial evidence; and the concurrence of will may be established by joint acts, or by separate acts leading to the same unlawful result, p. 503.</p> <p>18. Same.—Liability of Participants.—One conspirator is liable for the separate acts of his confederates done in furtherance of the conspiracy; and a person coming into such conspiracy after the formation thereof is liable the same as an original conspirator. p. 503.</p> <p>19. Same.—Trial.—Judgment.—If conspirators aye tried separately they may be sentenced separately as tried and found guilty, p. 504.</p> <p>20. Same.—Allegations.Naming Conspirators.—Proof of Part.—On an indictment charging that defendant, with certain others, committed the crime of conspiracy, he may be convicted on proof of his conspiracy with all or any of such other persons, p. 504.</p> <p>21. Trial.—Instructions.—Negativing Qood-Fait'h Transaction.— Conspiracy.—An instruction that if the jury should find beyond a reasonable doubt from the evidence that defendant did not enter into the employment' of collecting money from the prosecuting witness in good faith, but for the purpose of extorting money by blackmail from said witness, as charged, he may be. found guilty, is not bad for the qlleged reason of requiring defendant to establish the fact that he was acting in good faith, instead of requiring the State to prove he was not acting in good faith, p. 504.-</p> <p>22. Same.—Instructions.—Erroneous.—Iiequésting Similar One.— Appellant cannot successfully complain of the court’s giving an alleged erroneous instruction, where he has. requested one substantially similar, and has alleged error for the refusal to give same. p. 505.</p> <p>23. Same.—Instructions.—Good Character.—An instruction that if the jury, after considering all the evidence, including that of defendant’s good character, entertain a reasonable doubt of his guilt, they should acquit, but if the evidence convinces them, beyond a reasonable doubt, of defendant’s guilt they might find so notwithstanding his good character, fairly states the law on such subject, p. 506.</p> <p>24. Criminal Law.—Defenses.—Good. Character.—Where defendant’s guilt of a crime is proved beyond a reasonable doubt, previous good moral character will not entitle him to an acquittal, such character giving no person a license to commit a crime, p. 506.</p> <p>25. Trial.—Instructions.—Request for.—Record.—Where requested instructions are not shown by the record to have been subscribed by the party or his counsel, and presented to the court before the beginning of the argument, no questions can be presented thereon, on appeal, p. 507.</p> <p>26. Tbiat,.—Instructions.—Duplication of.—It is not erroneous to refuse instructions requested which are substantially covered by those given, p. 507.</p> <p>27. Appeal.—'Weighing Evidence.—The Supreme Court will reverse a case on the ground that the verdict is contrary to the law, and to the evidence, only where there is no evidence to prove some essential fact. p. 507.</p>

<p>1. Municipal Corporations.—Powers.—Broadening Toy Ordinance. —Municipal corporations have no power to broaden, by ordinance, ■ their legislative grant of power, p. 510.</p> <p>2. Same.—Ordinances.—“Peddlers—Defining.—That part of a city ordinance ■ licensing peddling, which defines the term “peddler,” may be treated as surplusage, since by §7231p Burns 1901, Acts 1901, p. 500, §7, the legislature defined such word to include a person going from house to house and taking orders for future delivery; and in conferring the power to license to cities, it will be presumed that the word was used in the defined sense, p. 510.</p>

Prom St. Joseph Circuit Court; Waller A. Funk, Judge. Application by Michael Wagener for license to retail intoxicating liquors, against which Thomas C. Barnes and others remonstrate. Prom a judgment for the applicant, remonstrants appeal.

<p>1. Deeds.—Quitclaim.—Effect as to Future Interests.—An ordinary quitclaim deed eonveys no title to future interests in property. p. 521.</p> <p>2. Same.—Assignments of Possible Interests.—Common Lato.— Equity.—At the common law deeds to strangers of possible future interests in land were void; but in equity they were sustained as executory contracts, where based upon valuable considerations, .not contrary to equitable rules of public policy, and there existed a duty to convey, p. 521.</p> <p>3. Same.—Subsequently Acquired Interests.—Estoppel.—Regardless of equity, conveyances of subsequently acquired interests in land can be effected by the principles of estoppel, p. 522.</p> <p>4. Same.—Warranty.—Effect.—A warranty in a deed concludes the grantor from asserting after-acquired title to the land conveyed. p. 523.</p> <p>5. Same. •—• Quitclaim. ■— Estoppel. — Recital of Specific Interest Conveyed.—Where a quitclaim deed recites the specific interest conveyed thereby, it will operate as an estoppel against the grantor from asserting an after-acquired title to such interest, p. 523..</p> <p>6. Same.—Warranty.—Estoppel.—The doctrine of warranty, as applied to deeds, is regarded with favor, and that of estoppel, with disfavor, p. 523.</p> <p>7. Same.—Warranty.—Extent of Estoppel Created.—The extent of the estoppel created by the warranty in a deed is measured by the language of the warranty, and not by the description or recitals in the deed, and whether suqh description or recitals are true, or known to be untrue, is not material, p. 524.</p> <p>8. Same.—Of Interest to be Acquired.—Estoppel.—A quitclaim deed specifically conveying an interest to be acquired upon the death of the grantor’s mother estops such grantor and his grantees from asserting title to such interest upon the death 'of the mother, p. 525.</p> <p>9. Appeal.—Decisions.—I-loto Considered.—Decisions on appeal must be restricted to the facts before'the court, p. 527.</p> <p>10. Deeds'.—Vested Interests.—Expectancies.—Fraud.—A deed of an interest fixed by law cannot be impeached for fraud in the same manner as the conveyance of a mere expectancy depending upon the bounty of the ancestor, p. 527'.</p> <p>11. Descent and Distp-ibution.—After-Acquired Interest.—Widows.—Second Marriage.—Under the act of 1852 (1 R. S. 1852, p. 250, §18) a widow remarrying held what was in the nature of a base or determinable fee in lands received by descent from the former husband: and in the event of her death during such second marriage such lands descended to the children by such former husband, p. 527.</p> <p>12. Deeds.—Public Policy.—After-Acquired Interest.—Children Of Former Marriage.—While the children of a former marriage had no legal interest, under the act of 1852 (1 B. S. 1852, p. 250, §18), in lands descending from their father and held by the mother during her second marriage, public policy did not forbid the alienation by the children oi their prospective interests therein, p. 527.</p> <p>13. Same.—Reversions.—Remainders.—The conveyance of reversions and remainders may be impeached for fraud, p. 529.</p> <p>14. Same.—Contingent Remainders.—In the absence of fraud a sale of a contingent remainder in lands is valid and enforceable, p. 532.</p> <p>15. Same.—Consideration.—Remainders.—Expectancies.—Mere inadequacy of price is not sufficient evidence to set aside, as fraudulent, a sale of a contingent interest in lands, though such evidence may be sufficient to set aside the sale of an expectancy. Chambers v. Chambers, 139 Ind. Ill, overruled, p. 533.</p> <p>16. Teial.—Special Findings.—Omissions.—Facts omitted from a special finding are presumed to have been found against the party having the burden of proof thereon, p. 534.</p> <p>17. Same.—Burden of Proof.—Evidence.—The burden of proof never shifts; though the duty to go forward with evidence does, p. 534.</p> <p>18. Same.—■ Special Findings.— Sales.— Reversions.— Special, findings showing that a son sold his expectancy in his mother’s one-third interest in her deceased husband’s lands, the mother receiving the full and fair consideration therefor; that the purchasers acted in good faitli, and that the son was not overreached in any manner, sustain a decree in favor of the purchaser. p. 534.</p> <p>19. Sales.—Expectant Interests in Lands.—Family Settlements.— Family settlements are favorably regarded by courts of equity, and will be upheld where no fraud is shown, p. 535.</p>

<p>1. Mortgages.—Deeds.—Contracts to Reconvey.—A deed absolute upon its face, executed along witli a contract to reconvey upon repayment of the money borrowed, constitutes a mortgage, p. 542.</p> <p>2. Contracts.—Oral.—Evidence.—Release of Mortgagor's Title.—Redemption.—A mere equitable right of redemption in real estate may be released by a parol contract founded upon a sufficient consideration; and parol agreements are admissible in evidence to show that it would be unjust to permit such a debtor to redeem, p. 542.</p> <p>3. Deeds.—Mortgages.—Defeasances.—Redemption.—An undertaking, collateral to a deed absolute upon its face, merely to reconvey upon repayment does not constitute a technical defeasance, but does give to the grantor the right to redeem, p. 542.</p> <p>4. Mortgages.—Estates Created by.—A deed absolute upon its face gives to the grantee a legal title, although a collateral contract provides for a reconveyance upon repayment of the money loaned, p. 543.</p> <p>5. Same.—Deeds.•—Contracts for Reconveyance.—Payment.—Effect. —Where a contract, collateral to a' deed absolute upon its face, provides merely for a reconveyance upon payment of the loan, the making of such repayment does not of itself reinvest the grantor with the legal title, p. 543.</p> <p>O. Same.—Redemption.—Equitable Defenses.—Frauds, Statute of. —The plaintiff, in a suit to redeem from a mortgage, cannot interpose the statute of frauds and thereby cut off equitable defenses, p. 540.</p> <p>7. Same.—Equity of Redemption.—Release.—Frauds, Statute of.— The surrender of the equity of redemption of the grantor in a deed absolute on its face, but accompanied by a written contract to reconvey upon payment of the money loaned, is not within the statute of frauds; and a conveyance or foreclosure was not necessary to extinguish the grantor’s title, p. 540.</p> <p>S. Same.—Equity of Redemption.—Assertion of.—The assertion of a right of redemption, being an equitable proceeding, must be tried upon the equitable principle that he who seeks equity must do equity, p. 547:</p> <p>9. Laches.—Redemption.—Mortgages.—Where the owner of the equity of redemption of a mortgage orally contracts for the release thereof, appropriating the consideration paid, and has apparently, and without explanation, abandoned such right for nine years, during wliieli time the property increased greatly in value, the purchaser making permanent improvements thereon, the owner is guilty of laches precluding a recovery, p. 548.</p> <p>10. Laches.—Redemption.—Speculative Claims.—Where the owner of an equity of redemption orally releases same, no advantage being taken of him, and the purchaser acts in good faith thereon, no effort being made for nine years to redeem, such claim of the right to redeem is speculative and not enforceable, p. 549.</p> <p>11. Same.—Loss of Evidence.—The failure to enforce a right for such a length of time that valuable evidence might be lost to defendant and the property involved diminish materially in value, may wholly defeat plaintiff’s right, p. 549.</p> <p>12. Evidence.—Parol.—Varying Written Contracts.—Contemporaneous oral declarations cannot be received in evidence to vary or contradict the written instrument, p. 550.</p> <p>13. Same.—Parol.—Mortgages.—Accounting. — Declarations made during the negotiation of a contract, in effect a mortgage, are admissible in a suit for a redemption from such mortgage and for an accounting, as showing the real intent of the parties as respects certain improvements made by the mortgagee, who was given possession, p. 550.</p> <p>14. Tbiai..—Order of Proof.—The order of proof is largely a question for the party presenting same. p. 550.</p> <p>'15. Evidence.—Declarations of Others.—Legal.—Meaning of Mortgage.—Declarations of a mortgagee to his assignee, in the absence of the' mortgagor, as to what was orally said by the mortgagor, the assignee being absent, in the negotiation-of a deed absolute upon its face with a separate written contract of reconveyance upon payment of the loan, are admissible on behalf of such assignee, in a suit to redeem and for an accounting, as showing his understanding of the papers and transaction, p. 551.</p> <p>16. Contbasts.—Frauds, Statute of.—Right to Interpose Defense of.—Mortgages.—In a suit by a mortgagor to redeem and for an accounting, he cannot raise the question of the validity of an oral contract between the mortgagee and his assignee, p. 551.</p> <p>17. Evidence.-—Belief.—-Circumstantial evidence is admissible to prove the belief and good faith of a party, p. 552.</p> <p>18. Same.—Belief.—Foundations of.—Oral declarations of a mortgagor, made four years before the taking possession of property, repeated by the mortgagee to his assignee at the time of the purchase, the mortgagor being absent, are admissible on the question of good faith and intent in the making of improvements on the property, the remoteness of time going to the weight of the evidence, p. 552.</p> <p>19. Quieting Title.—Legal Estates.—Proof of Equitable.—Judgment.—Amendments.-?-'!*he quieting of the title to real estate in favor of an equitable owner, on allegations of a legal title, is harmless as to one having no title to such property, amendments to conform the allegations to the proof being permissible at any time, and therefore, presumptively, made. p. 553.</p> <p>20. Appeal.—Weighing Evidence.—The Supreme Court .will not weigh conflicting evidence, p. 554.</p> <p>21. Same.—Right Result.—A decree of the circuit court will not be disturbed where a decree for the adverse party, under the evidence, would be more unjust than the one entered, p. 554.</p>

<p>1. Indictment and Information.—Presenting False Claim Against Comity.—An indictment for presenting a false claim against a county, which alleges only by a conclusion that the claim presented was too high for the work done, is not sufficient, p. 556.</p> <p>2. Same.—Presumptions.—In construing an indictment, no presumptions will be indulged against the accused, p. 559.</p> <p>3. Same.—Certainty.—The particular crime with which a defendant is charged must be set forth with reasonable certainty and by express averments, p. 559.</p> <p>4. Same.—Description.—Conclusions.—An indictment should set forth a specific description of the offense; and mere conclusions are not sufficient, p. 559.</p> <p>5. Same.—Statutes.—General Terms.—Where a crime is defined in general terms by the statute, the indictment must allege the particular acts constituting the offense, charging in the general • language of the statute being insufficient, p. 559.</p>

<p>1. New Trial.—Misconduct of Counsel.—Mere misconduct of counsel in the argument to the jury does not constitute a ground for a new trial in a criminal case, an “error of law,” for which a new trial may be granted, necessarily implying some ruling of the court, p. 562.</p> <p>2. Same.—Crounds for.—Legislative Poicers.—New trials cannot be had as a matter of right, but only upon the terms prescribed by the legislature, p. 562.</p> <p>3. Same.—Misconduct of Counsel.—Argument to Jury.—To present any ¡¡nestion upon the misconduct of counsel in the argument to the jury, a specific motion must be made to withdraw the objectionable remarks from the consideration of the jury, or to admonish the jury to disregard same, and the trial court’s ruling thereon assigned as a reason for a new trial, p. 562.</p>

<p>1. Damages.—Beal Property.—Sales.—The sale of the damaged real property does not cut off the owner’s right of damages which accrued to him prior to such sale. pp. 575, 620.</p> <p>2. Interurban Railroads.—Additional Servitude.—Streets.—The operation of an interurhan railroad, within a city, over the tracks of a street railroad- company, does not constitute an additional servitude to the lands used for street purposes. Jordan, J., and Montgomery," J., dissenting, pp. 601, 602, 622, 634.</p> <p>3. Same.—Operation of.—Negligence.—Special Damages.—The negligent operation, within the city streets, of interurhan cars of excessive weight, size or number, causing damage to the property of abutters, constitutes a cause of action, pp. 601, 621, 634.</p>

<p>1>. Statutes.—“Practicable.”—Railroads.—Interurban Railroads.— Crossings.—The word “practicable,” as used in §5670 Burns 1908, Acts 1903, p. 125, providing that if any street, interurban or suburban railroad company and a railroad company shall fail to agree upon a change of an existing crossing, the court may order the change thereof to one above or below grade if it shall decide it to be “practicable” to abolish the grade crossing, when con- ■ strued with §5227 Burns 1908, Acts 1897, p. 237, §1, giving courts the power to prevent a crossing at grade where “reasonable and practicable,” and with §5533 Burns 1908, Acts 1907, p. 454, §3, giving the Railroad Commission power to supervise crossings, implies the court’s exercise of a legal discretion—the exercise of a sound judgment under all of the circumstances, considering the matter from the viewpoint of a prudent and cautious person, p. 636.</p> <p>2. Appeal. — Weighing Evidence. Interurban Railroads. — Railroads.—Crossings.—The trial court’s decision against the practicability of changing from grade an interurban and railroad crossing will not be disturbed, where the evidence—which was oral—shows that the change would probably cost $64,483; that derailing devices were in use, preventing collisions; that the interurban company runs 44 cars daily over the crossing, and the railroad company, twenty trains daily, and that no accident has ever happened at such crossing, p. 638.</p>

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Action by Andrew J. Ridge against the Oolitic Stone Company. Prom a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from Appellate Court under §1394 Bums 1908, subd. 2, Acts 1901, p. 565, §10.

Prom Clark Circuit Court; Harry G. Montgomery, Judge. Suit by the Louisville & Jeffersonville Bridge Company against the city of Jeffersonville 'and others. Prom an interlocutory decree for plaintiff, defendants appeal.

<p>1. Habeas Corpus.—Collateral Attach.—Appeal.—Habeas corpus does not lie to obtain the release of a prisoner, unless the judgment of conviction is void; and such action cannot perform the office of an appeal for the correction of alleged errors of the trial court, p. 666.</p> <p>2. Criminal Law.—Juvenile Courts.—Jurisdiction.—Misdemeanors. —Appeal.—Under §1648 Burns 1908, Acts 1907, p. 266, the juvenile courts have jurisdiction to try all misdemeanors consisting of causing or encouraging any boy under sixteen, or girl under seventeen to commit any act of delinquency defined in §1641 Burns TJOS, Acts 1905, p. 440, §1; and an appeal lies from any judgment of conviction in such case to the Appellate Court, p. 666.</p> <p>3. Indictment and Information.—Infants.—Delinquency.—Contributing to.—An affidavit charging that defendant caused and encouraged a certain girl under the age of fifteen to. commit an act of delinquency “in this, to wit: that the said [defendant] held illicit sexual intercourse with the said” girl, and that he also aimed to assist her “to make her escape from the Indiana Girls’ School, of which institution she is an inmate,” charges the commission of a misdemeanor under §§1041, 1048 Burns 1908, Acts 1905, p. 449, §1, and Acts 1907, p. 266, and not the felony of rape under §2250 Burns 1908, Acts 1907, p. 85. p. 667.</p> <p>4. Criminal Law.—Allegations.—Proof of.—In criminal as in civil cases, only the substance of the isue or charge need be proved, p. 667.</p> <p>5. Indictment and Information.—Allegations.—Videlicet.—The purpose of a videlicet in criminal pleading is to explain precedent general or doubtful language, but it cannot be used to enlarge or contradict the prior language, its allegations .In such connection being rejected as surplusage; and such rule has been modified by §2003 Burns 190S, Acts 1905, pp. 584, 625, §192, providing against quashing an indictment or affidavit because of surplusage or repugnance, where matter is alleged to indicate the person and crime charged, p. 668.</p> <p>6. Judgment.—Collateral Attach.—Habeas Corpus.—Criminal Law. —The judgment of the Juvenile Court of Marion County holding that an affidavit charged defendant with a misdemeanor and not a felony, even though erroneous, cannot be collaterally attacked in a habeas corpus proceeding, such court having jurisdiction, p. 669.</p> <p>7. Same.—Collateral Attach.—Defective Affidavit.—The fact that defendant was convicted upon a defective affidavit does not render the judgment of conviction void and subject to a collateral attack, p. 070.</p> <p>8. Appeal.—Office of.—An appeal is the sole remedy for the correction of mere defects in the proceedings of the trial court. ' p. 670.</p>

From Owen Circuit Court; George W. Grubbs, Special Judge. Action by Dolly M. Barker, as administratrix of the estate of Albert S. Barker, deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court (See 40 Ind. App. 256) under §1399 Burns 1908, Acts 1901, p. 565, §15.

<p>1. Criminal Law.—Offering Diseased Horse for Sale.—Statutes.— Under §2508 Burns 1908, Acts 1907, p. 100, providing that “whoever shall offer for sale, or exchange for anything of value, any horse or mule, knowing the same to be * * * ‘broken winded’ * * * and shall conceal the existence of such disease from the person to whom he is offering such animal for sale * * * shall, on conviction thereof be fined,” any person knowingly offering for sale a horse so diseased without so informing the person to whom the offer is made, is guilty of the offense described. Hadley and Gillett, JJ., dissenting, pp. 694, 698.</p> <p>2. Words and Phrases.—“Conceal."—Statutes.—Sales.—Criminal Daw.—The word “conceal,” as used in §2508 Burns 1908, Acts 1907, p. 1Ó0, providing that any person who knowingly offers for sale a “broken-winded horse” or mule and who “conceals” the existence of such disease, shall be guilty of a misdemeanor, imports merely a failure by the offerer to communicate such fact to the person to whom the offer is made. p. 695.</p> <p>3. Sta.tutes,—Construction.—In the construction of an act, the courts will try to ascertain the legislative intent, and in doing so, will consider the import of the entire act. p. 696.</p> <p>4. Samh.—Meaning of Words.—The ordinary meaning of words of a statute will be adopted in the construction thereof, unless it is evident that such words were used in a technical or secondary sense, p. 697.</p> <p>5. Statutes. — Construction. — Crimes. — Statutes creating crimes are strictly construed, but such construction cannot be adopted when it will subvert the obvious legislative intent, p. 698.</p> <p>6. Evidence.—Sufficiency.—Offering for Sale Diseased Horse.—■ —Criminal Law.—Evidence showing that defendant knowingly purchased a “broken winded” horse, advertised it for sale and sold it to the prosecuting witness without disclosing- the fact of such disease; that the prosecuting witness four days afterwards undertook to drive said horse, when he ascertained the existence of such disease; that after a long search he found defendant, who promised to supply another horse, but failed to do so, and defendant thereafter could not be found, supports a finding of guilty of unlawful offering of a “broken-winded” horse for sale, under §2508 Burns 1908, Acts 1907, p. 100. p. 098.</p>

<p>From Marshall Circuit Court; Harry Bernetha, Judge.</p> <p>Prosecution, by the State against Clay W. Metsker. From a judgment for defendant, the State appeals.</p>

<p>From Elkhart Superior Court; Vernon TV. Van Fleet, Judge.</p> <p>Action by Ferry L. Turner, receiver of the Indiana National Bank, against Henry A. Mumaw. From a judgment for plaintiff, defendant appeals.</p>