Volume 170 — Indiana Reports

<p>From Laporte Circuit Court; John G. Uiohter, Judge.</p> <p>Action by Prank Przezdziankowski against the Haskell Barker Car Company. From a judgment on a verdict for' plaintiff for $9,500, defendant appeals. Transferred from Appellate Court under §1393 Burns 1908, Acts 1907, p. 237, §2.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Drainage proceeding by Cassius L. Endicott, against which Morton S. Honnold and others remonstrate. From an order establishing the drain, remonstrants appeal, making additional parties.

<p>From Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Fred O. Hamlin against the New York, Chicago & St. Louis Railroad Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901, p. 590.</p>

<p>1. Words and Phrases. — “Banking Oompmvy.” — Partnership.— The term “banking company,” as used in §2031 Burns 1901, Acts 1891, p. 395, providing that “any officer of any banking company” who shall fraudulently receive any deposit which shall be lost to the depositor, shall be guilty of embezzlement, imports .a partnership, p. 46.</p> <p>2. Same. — “Lost to the Depositor.” — Embezzlement.—Banks.—The phrase “lost to the depositor,” as used in §2031 Burns 1901, Acts 1891, p. 395, providing that any officer of any bank who fraudulently receives a deposit when the bank is insolvent and which deposit shall be “lost to the depositor” shall be guilty of embezzlement, imports a deprivation of the depositor of the temporary or permanent use of his deposit, and does not import that the bank may not ultimately pay all depositors, p. 46.</p> <p>3. Partnership. — Legal Status. — LiaMlity.—A partnership, as such, has no legal existence apart from the individuals composing it. p. 47.</p> <p>4. Indictment and Information. — Embezzlement.—Banks.—Partnership. — Insolvency.—An indictment of’ partners operating a bank, for embezzlement, under §2031 Burns 1901, Acts 1891, p. 395, which fails to allege that the individual partners of the “banking company” were insolvent at the time of accepting the deposit, is bad on a motion to quash, p. 48.</p>

Prom Kosciusko Circuit Court; Lemuel W. Boyse, Judge. Condemnation proceedings by the Ft. Wayne & Southwestern Traction Company, against the Ft. Wayne & Wabash Railway Company and others. From a judgment for defendant company, .plaintiff appeals.

From Sullivan Circuit Court; Charles E. Henderson, Judge. Highway vacation proceeding by George R. Dutton and others, against which Malinda Iloupt and others remon: strate. From a judgment for petitioners, remonstrants appeal.

<p>1. Trial. — Instructions.—Requests . for. — Adoption of. — Statutes.—■ The trial judge may adopt tbe unsigned, requested instructions of a party as bis own, though §544a Burns 1905, Acts 1903, p. 338, §1, directs that such requested instructions shall be signed by the party or his counsel, such statute being remedial and directory, p. 75.</p> <p>2. Same. — Instructions.—Requested.—Failure of Party to Sign.— The party failing, personally, or by counsel, to subscribe requested instructions, can raise no question thereon, where the judge refuses to give same. p. 76.</p> <p>3. Appeal. — Reserved Question of Law. — Instructions.—Evidence.— Where an appeal is taken upon reserved questions of law affecting the instructions, there being no certificate of the judge showing the character of the evidence, and the evidence not being in the record, the instructions will be sustained if they were correct under any supposable evidence admissible within the issues, p. 76.</p> <p>4. Trial. — Instructions.—Repetition of. — Wills.—The repetition of instructions, in word or substance, emphasizing the right of a testator, of sound mind, to make his own will, is usually considered harmless, p. 76.</p> <p>5. Same. — Instructions.—Wills.—Testamentary Capacity.- — -An instruction, in a will contest, that if testator, at the time of the preparation of his will, was of sound mind, and he afterwards became stricken with disease, and later executed the will so prepared, having sufficient capacity to understand that he was signing such will, the will was not invalid on the ground of unsoundness of mind, is erroneous, p. 78.</p> <p>6. Same. — Erroneous Instructions. — Curing by Interrogatories.— Wills. — Testamentary Capacity. — In a will contest, an erroneous instruction on the question of testamentary capacity is cured by answers to interrogatories showing that the testator was of sound mind at the time of the execution of such will. p. 79.</p> <p>7. Wills. — Sanity of Testator. — Presumptions.—Testators are presumed sane. p. 80.</p> <p>S. Appeal. — Harmless Error. — A harmless error does not justify a reversal, p. 81.</p>

From Hamilton Circuit Court; Ira W. Christian, Judge. Highway proceeding by Charles N. Brown and others, against which Levi Kinzer and others, remonstrate. From a judgment for petitioners, remonstrants appeal.

Prom Pulton Circuit Court; John C. Nye, Special Judge. Action by Henry Leroy Lain against the Chicago & Erie Railroad Company. Prom a judgment on a verdict for plaintiff for $14,771.50, defendant appeals. Appealed from Appellate Court under subd. 3, §1394 Burns 1908, Acts 1901, p. 565. §10.

From Decatur Circuit Court; Marshall Hacker, Judge. Condemnation proceeding by the Westport Stone Company against Mariah Thomas and others. From an order sustaining defendants’ objections to the complaint., plaintiff appeals.

From Union Circuit Court; George L. Gray, Judge. Action by John Henry, Sr., as administrator of the estate of John Henry, Jr., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals. Transferred from Appellate Court under §1394 Bums 1908, subd. 2, Acts 1901, p. 565, §10.

<p>1. Pleading. — Complaint.--^-Motion to Malee More Specific. — Street Assessment Liens. — Collateral Attaole. — On a motion to make more specific, a complaint for the foreclosure of a street assessment lien does not need to set out all of the subsidiary matters leading up to the completion of an assessment for street improvements, and it will ordinarily be sufficient if tbe jurisdictional facts are properly alleged, mere irregularities or inaccuracies being in. sufficient to avoid sucb assessment on a collateral attack, p. 108.</p> <p>2. Pleading. — Complaint.—Street Assessment Liens. — Demand.— An allegation, in a complaint tor tbe foreclosure of a street assessment lien, that payment of the assessment was demanded more than sixty days before the suit was begun, is, upon demurrer, a sufficient allegation of a demand, p. 108.</p> <p>3. Appeal. — Defective Complaint. — Special Findings. — Informalities in a complaint may be cured by the special findings, p. 108.</p> <p>4. Pleading. — Complaint.—Street Assessment Liens. — Foreclosure. —A complaint for the foreclosure of a street assessment lien, alleging the location of the improved street, the width, character and terminal points of the improvement, the issuance of the proper notices and other jurisdictional steps, including a copy oí that part of the assessment that relates to defendants’ property, is sufficient, p. 109.</p> <p>5. Municipal Corporations. — Street Improvements. — Length of Improvements. — Under §4288 Burns 1901, Acts 1889, p. 237, §1, municipal corporations may improve any desired length of the street, p. 109.</p> <p>6. Same. — Street . Improvements. — Defeats.—Defenses.—Collateral Attach. — In a collateral attack .upon a street assessment, the fact that no general plan of improvement had been adopted, or that there were no plans and specifications, or that there was no publication of a general plan of street improvements, or that no town engineer ever existed, or that no office of town engineer had been created, or that no grade had been established, or that the grade was changed after the letting of the contract, or that the grade was unlawfully changed by the contractors, or that the salary of the town engineer was included in the cost of the improvement, or that the town board made certain reservations in the contract, thereby enhancing the contract price of the improvement, constitutes no defense, p. 110.</p> <p>7. » Same. — Town Trustees. — Filing Election Certificates. — Collateral■ Attach. — Section 4331 Burns 1901, §3309 R. S. 1881, requiring the election inspectors to file vrith the cleric of the circuit court the certificates of election of the town trustees, applies only to the first election of a town board; and such failure cannot be set up as a defense, where it would constitute a collateral attack on the town board’s proceedings, p. 111.</p> <p>8. Same. — Town Trustees. — Acts of. — {Validation.—Where the official proceedings of a town board were validated by a special act of the legislature before the institution of the suit a street assessment made by such board cannot be questioned, p. 111.</p> <p>9. Municipal Corporations. — Street Assessments. — Interested-Town Trustee. — Acts of. — In tbe absence of a prohibitory statute, the fact that a town trustee owns a lot along the improved street, constitutes his act in assisting in the making of the street assessment merely voidable and not void. p. 112.</p> <p>10. Estoppel. — Frontagers. — Street Improvements. — Acquiescence. —Frontagers who stand by and reap the benefit of voidable street-improvements are estopped to defend against paying for same. p. 112.</p> <p>11. Appeal. — Briefs.—Where the special findings and conclusions of law are not set out in appellants’ brief, alleged errors therein are waived, p. 113.</p>

Prom Boone Circuit Court; Samuel B. Artman, Judge. Highway petition by William M. Harmon and others, against which Jacob Cooper and another remonstrate. From a judgment for petitioners, remonstrants appeal. Transferred from Appéllate Court under §1393 Burns 1908, Acts 1907, p. 237, §2.

<p>1. Easements. — Drains.—Railroads.—A railroad company which, thirty years before the commencement of the case at bar, constructed a culvert under its track for the carrying away of the surface-water above.the track, and which company, at the same time, in order to convey the water through such culvert, with the owner’s knowledge and acquiescence, cut an outlet through such owner’s premises for a short distance, and maintained such outlet for thirty years, owns an easement in such outlet, p. 121.</p> <p>2. Same. — Prescription.—Title.—In title by prescription, a grant is conclusively presumed; and such a title is as good as one by deed. p. 122.</p> <p>3. Same. — Drains.—Rights Concerning. — The owner of a drainage easement has the right to enter the owner’s premises, doing no unnecessary damage, and to remove obstructions thereto in order to prevent any injury therefrom, p. 122.</p> <p>4. Same. — Obstructions.—Entry.'—Notice.—Trespass.—The owner of an e.asement, without request for the removal of an obstruction placed thereon by the owner of the land, may enter and remove such obstruction; and a conviction for trespass in going upon such land cannot be upheld, p. 122.</p>

<p>1. Indictment and Information. — Intoxicating Liquors. — Statutes. —An affidavit, filed on March 12, 1907, charging that defendant, on February 13, 1907, unlawfully kept a place where intoxicating liquors were sold, states an offense under §8337 Burns 1908, Acts 1907, p. 27, §1, and not under §8351 Burns 1908, Acts 1907, p. 689, §1, both statutes forbidding any person to retail liquor without a license, p. 125.</p> <p>2. Same. — Sales of Intoxicating Liquors. — Place of. — An affidavit charging that defendant “at and in the county of Delaware and State of Indiana, did then and there unlawfully keep, run and operate a place where intoxicating liquors were sold,” sufficiently locates the “place” of such unlawful sales, there being nothing in the act (§8337 Burns 190S, Acts 1907, p. 27, §1) requiring such “place” to be enclosed, blinded or secret, p. 126.</p> <p>3. Same. — Folloioing Language of Statute. — An indictment follow- , ing the language of the statute is sufficient, unless such language shows that acts therein mentioned were not intended to be made criminal, or where the act shows an evident intention that recourse should be had to the common law for a complete definition of the offense defined, p. 127,</p> <p>4. Indictment and Information. — Intoxicating Liquors. — Sales.— An indictment for the keeping of a iilace where intoxicating liquors are unlawfully sold, which follows the language of the statute (§8337 Burns 1908, Acts 1907, p. 27, §1) is sufficient, p. 127.</p> <p>'5. Same. — Intoxicating IAquors. — Sales.—Persons.—An indictment for keeping a place for the unlawful sale of liquors, under §8337 Burns 1908, Acts 1907, p. 27, §1, does not require that the specific sales shall be alleged nor that the names of the vendees shall be set out. p. 128.</p> <p>6. Evidence. — Sales of Liquor. — In a prosecution for keeping a place for the unlawful sale of liquor, under §8337 Burns 1908, Acts 1907, p. 27, §1, evidence of .all kinds of unlawful sales is admissible, p. 129.</p> <p>7. Indictment and Information. — Intoxicating IAquors. — Keeping Unlawful Place for Sale of. — An indictment under §8337 Burns 190S, Acts 1907, p. 27, §1, for the‘keeping of a place for the unlawful sale of liquors, does not need to show that defendant sold such liquors while he was the owner or proprietor of the place, nor is it necessary to charge the kind of liquors sold. p. 129.</p> <p>8. Same. — Specifying the Statute Violated. — In an indictment, it is not necessary to name the particular law which is violated, such fact being determined from the facts alleged, p. 129.</p> <p>9. Constitutional Law. — Titles.—Subject.—Intoxicating Liquors. —The title of the act of 1907 (Acts 1907, p. 27) purporting “to regulate and license the sale of” liquors is sufficient to embrace a section of such statute prohibiting the keeping of a place where liquors are unlawfully sold, and therefore, does not violate §19, Art. 4, of the Constitution, providing that the subject-matter of an act shall be expressed in the title thereof, pp. 129, 130.</p> <p>10. Same. — Subject Wot Expressed in Title. — Effect.—Only that part of a statute whose subject is not expressed in the title of the act, is void, under §19, Art. 4, of the Constitution, providing that the subject of an act shall be expressed in the title thereto, p. 130.</p> <p>11. Statutes.' — Reenactment After Judicial Construction. — An act reenacting a statute which has been judicially construed, is impressed with the construction given to such statute.</p> <p>12. Appeal. — Bills of Exceptions. — Instructions.—Criminal Cases.— Instructions given or refused, and the exceptions thereto, in criminal cases, can be brought into the record on appeal only by a bill of exceptions, properly signed and filed, within the time allowed, and the filing thereof properly shown by the record, p. 132.</p>

<p>1. Mandamus. — Return.—Motion to Strike Out. — Clerical Error.— Amendments. — A motion to strike out a paragraph of return because such paragraph denied the allegations of the “petition” instead of the “writ,” should be overruled, since it was a mere clerical error, amendable as a matter of right, and could not affect the substantial rights of the parties, p. 136.</p> <p>2. Pleading. —Answer.—Supplemental.—Discretion.—Appeal.—The action of the trial court in permitting the filing of a supplemental answer showing facts occurring after the filing of the original ■answer, in the absence of a showing of an abuse of discretion, will not be disturbed on appeal, p. 13?.</p> <p>3. Same. — Anstoer.—Mandamus.—Discharge of Policeman. — Specifications of Charges of Misconduct. — In an action to mandate a board of police commissioners to reinstate a policeman, it is not proper to require such board to set out in its return the specific charges of misconduct on which such policeman was tried and discharged, p. 136.</p> <p>4. Municipal Corporations. — Police.—Misconduct. — Trial. — Collateral Attack. — The judgment of a board of police commissioners having jurisdiction of the person of a policeman and of charges against him, is not open to review by the courts, p. 136.</p> <p>5. Pleading. — Supplemental Answer. — Demurrer Thereto. — A demurrer addressed to a supplemental answer raises no question, since such answer constitutes but a part of the original answer, and is not distinct therefrom, p. 137.</p> <p>6. Mandamus.' — Another Action Pending. — Police.—Trial of, for Misconduct. — Mandamus does not ordinarily lie to compel the reinstatement of a policeman, where charges of misconduct have been filed against him, and he has been suspended, according to rules, to await the result of such trial, a policeman being under the duty of obeying the rules, p. 137,</p> <p>7. Municipal Corporations. — Police Commissioners. — Policemen.— Misconduct. — Boards of police commissioners have the right (§9034 Bums 1908, Acts 1907, p. 284) to determine charges of misconduct, filed against their policemen, p. 138.</p> <p>8- Pleading.' — Supplemental Ansiver. — Police Commissioners. — Discharge of Policeman. — In an action in mandamus to compel the board of police commissioners to reinstate a policeman, a supplemental answer showing that the charges of misconduct mentioned in the original answer had been determined, and the policeman discharged, is proper, and, with the original answer, shows a complete defense, p. 138.</p> <p>9. Evidence. — Proceedings Before PoUee Commissioners. — Policeman.- — Misconduct.—In an action in mandate to compel the board of police commissioners to reinstate a policeman, the proceedings before such board at the trial of such policeman on charges of misconduct, are admissible in evidence in whole or in part. p. 139.</p>

<p>From Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by Elmer Yeager against the Evansville & Terre Haute Railroad Company. Prom a judgment on a verdict for plaintiff for $250, defendant appeals. Transferred from the Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15.</p>

<p>1. Municipal Corporations. — Councilmen. — Vacancies.—Appointments. — Method.—The appointment of a councilman to fill a vacancy, under §8G46 Burns 1908, Acts 1905, pp. 219, 242, §45, may be by ballot, viva voce vote, motion or resolution, such statute being silent as to method, p. 146.</p> <p>2. Oeeicers. — Appointment.—Executive or Legislative Act. — Councilmen. — ¡The appointment to an office is an executive act, but the power to name the persons or body who shall appoint, is legislative. p. 147.</p> <p>3. Municipal Corporations. — Appointments.—Constitutional Lato. —The power to make appointments to fill vacancies in municipal offices need not be vested in the executive officers of such corporations, the constitutional provision (Art. 3) regarding the distribution of power into three departments not applying to municipal corporations, p. 147.</p> <p>4. Same. — Councilmen. —Vacancies.—Appointments.—Resolutions. —Veto.—The mayor of a city, under §8654 Burns 1908, Acts 1905, pp. 219, 245, §52, providing that mayors of cities may veto ordinances, orders, or resolutions of the council, and in such cases such ordinances, orders, or resolutions shall not become laws, unless passed again by a two-thirds vote, has no right to veto a resolution appointing a councilman to fill a vacancy, p. 14S.</p>

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

<p>1. Constitutional Law. — Right to Bear Arms. — Concealed Weapons. — Section 2345 Burns 1908, Acts 1905, pp. 584, 687, §449, making it a misdemeanor for any person, who is not a traveler, to carry certain weapons concealed, is not in violation of §§32, 33, Art. 1, of the Constitution, providing that the people shall have a right to bear arms for public and private defense, and that the military shall be subordinate to the civil power, p. 164.</p> <p>2. Statutes. — Judicial Construction. — Reenactment.—The reenactment of a statute or provision in a constitution which has been judicially construed, presumtively carries the construction theretofore given, p. 164.</p> <p>3. Constitutional Law. — When Question of, Decided. — Carrying Concealed Weapons. — Officers.—Whether a statute prohibiting all persons, except travelers, from carrying certain weapons concealed, is unconstitutional as to a police officer, will not be determined, where the evidence fails to show that defendant was an officer at the time the offense was committed, p. 165.</p>

<p>1. Attorney and Client. — Instructions.—Preparation of. — It is the duty of attorneys to assist the trial judge in the preparation of instructions in their cases on trial, p. 167.</p> <p>2. Trial. — Instructions.—Criminal Law. — Weight of Oral Admissions.- — -Invasion of Province o f Jury. — The question of the .proper weight to be given to oral admissions is wholly for the jury, and an instruction discrediting such testimony is an invasion of the province of the jury. p. 168.</p> <p>3. Same. — Instructions.—-Criminal Law. — Statements from Cases or Text-Books: — It is not always safe to give, as instructions, excerpts of law taken from cases or text-books, p. 168.</p> <p>4. Same.' — Instructions.-—-Criminal Law. — -Circumstantial Evidence. —An instruction that it is incumbent upon the State to prove every element of the circumstances relied upon beyond a reasonable doubt, and that such elements must be so related and of such a character as to exclude any reasonable explanation, except upon the hypothesis of guilt, is 'incorrect, p. 168.</p> <p>5. Same. — Instructions.—Criminal Laio.- — Uttering Forged Instrument.- — An instruction, in a prosecution for uttering a forged instrument, that it must be proved beyond a reasonable doubt that defendant forged the instrument, is erroneous, proof of the uttering being sufficient, p. 169,</p> <p>O. Tbial. — Instructions.—Criminal Lano. — Misleading.—Proof by Positive or Circumstantial Evidence.- — An instruction that “the proof may be by direct and positive testimony or by circumstantial evidence,” is not misleading in causing the jury to think that the evidence, in order to convict, must be wholly direct, or wholly circumstantial, g. 109.</p> <p>7. Same. — Instructions.—Repetitions.—The repetition of instructions favorable to one party is not commendable, p. 109.</p>

<p>1. Pleading. — Complaint.—Water-Works.—Maintaining Canal with Foot Log. — Injuries to Children. — A complaint alleging that defendant water-works company knowingly maintained an open canal with a small foot log across same; that such log was without any guard, and was submerged in the water so that in walking over it, the log would sink under the surface and thus become slippery; that it was maintained near a street crossing, where children congregated; that the public was invited and induced to use such log in order to cross; that the decedent boy — nine years old — undertook to cross same, and by reason of such condition, he slipped, fell into the water and drowned, states a cause of action, p. 170.</p> <p>2. Negligence. — Water-Works. — Maintaining Foot Log Across Open Canal. — Injuries to Children. — Evidence.—Evidence showing that defendant water-works company maintained, near a street crossing, a foot log with a hand-rail within reach of children, across an open canal; that the decedent boy nine years old undertook, after warning, to cross same and to swing a rock, suspended by a cord, into the canal, and that while so swinging such rock, he slipped and fell into the canal and drowned, does not support a verdict for damages in favor of the father, p. 173.</p>

<p>Prom Hancock Circuit Court; Meade Vestal, Special Judge.</p> <p>Drainage proceeding by Jacob S. Pavey and others, against which Freeman Braddock and others remonstrate. From a judgment of dismissal, some of the petitioners appeal.</p>

<p>. Prom Criminal Court of Marion County (36,228); William, Irvin, Judge pro tem.</p> <p>Prosecution by the State of Indiana against William O. Armstrong. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Trial. — Jurors.—Prior Service Within Year. — Record.—Appeal. ■ — Where jurors are challenged by the State because of prior jury service within one year, and they answer upon their voir dire that they have so served, to question their rejection because the prior service referred to consisted of their sitting upon the regular panel during the existing term, the defendant must show, by the record, that they were members of such panel, the presumption from the court’s action being that they were talesmen, p. 197.</p> <p>2. Same. — Challenge for Prior Service Within Year.- — Prior Service on Regular Panel During Term. — A juror who has not served on a jury within one year, and who is drawn or appointed as a member of the regular panel, cannot be challenged because of his service as a juror during such term. p. 19S.</p> <p>3. Intoxicating Liquors. — -Conducting Pool Room. — Evidence that a saloon-keeper had leased the ground floor of a building, containing two rooms, and had applied for, and was granted a license to retail liquors in the front room, no license being granted for the conducting of any business in connection therewith, that he rented the rear room to his bartender for a pool and gambling room, that chips were sold bearing the saloon-keeper’s name and redeemable at the bar — either in coin or trade, that he was active in the conduct of the pool room and a participant in the profits, sustains a conviction for unlawfully conducting another business in connection with his saloon.</p> <p>4. Intoxicating Liquors. — Conducting Other Business in Connection with Sale of. — Evasions.—A saloon-keeper will not be permitted to evade the law prohibiting him from conducting other business in connection with the saloon business by employing some one else to operate such other business, p. 202.</p> <p>5. Appeal. — Right Result. — Under §2221 Burns 1908, Acts 1905, p. 584, §334, the Supreme • Court will not reverse a conviction, where the alleged errors did not prejudice the substantial rights of the defendant, p. 203.</p>

From Putnam Circuit Court; Presley O. Gollwer, Judge. Action by Vivian ITadley, by her next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1399 Bums 1908, Acts 1901, p. 565, §15.

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by Clark W. Dinius against the Chicago & Erie Railroad Company and another. From a judgment on a verdict for $7,250 for plaintiff, defendants appeal.</p>

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by the State of Indiana, on the relation of George Good, against Francis M. John, as township trustee, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.-</p> <p>Action by Jack Egoff and another against the Board of Children’s Guardians of Madison County. From a judgment for defendant, plaintiffs appeal.</p>

From Clinton Circuit Court; Joseph Claybaugh, Judge. Drainage proceeding by Martha M. Templeton, against which Joseph F. Stevens and others remonstrate. From a judgment against the remonstrants, they appeal.

Prom Hamilton Circuit Court; Ira W. Christian, Judge. Action by Irene Allison against Herman Alerding and another, as executors of the will of Helen J. Tate, deceased. From a judgment for plaintiff, defendant appeals. Appealed from Appellate Court under subd. 3, §1394 Burns 1908, Acts 1901, p. 565, §10.

From Dubois Circuit Court; E. A. Ely, Judge. Action by Louis W. Elliott against the Southern Railway Company and others. From a judgment for plaintiff against said company, it appeals. Transferred from Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15.

<p>1. Trial. — Special Findings. — Request for. — Withdrawal.—Exception by Adverse Parties. — The withdrawal, just before the decision is announced, of a request for a special finding, cannot be made the basis of any objection by the adverse parties, though they were relying thereon, p. 288.</p> <p>2. Same. — Special Findings. — Request for. — Time of. — Requests for special findings must be granted, where made before the beginning of the trial; but in the discretion of the court may be refused, if made later, p. 289.</p> <p>8. Same. — Action of Trial Court. — Presumptions.—The presumption in favor of the rightfulness of the action of the trial court is strong, p. 290.</p> <p>4. Appeal. — Evidence.—Consideration of. — Intendments.—The Supreme Court, in the consideration of the evidence in a case on appeal, will make all legal intendments in favor of the finding of the trial court, p. 290.</p> <p>5. Sales. — Corporations.- — -Officers. — Refunding Money Received Personally. — Evidence.—Where there was evidence -tending to show that a director of a water-works corporation agreed with the other directors that he would float the bonds thereof, and construct the plant, and divide profits when it was completed, and he personally contracted for certain pipe, paying his money therefor, whereupon the company became defunct; and he assigned such pipe contract, he cannot be compelled to refund to such corporation the money received for such pipe. p. 290.</p> <p>6. Appeal. — 'Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 294.</p> <p>7. Laches. — Corporations.—Recovery of Property. — Where the directors of a corporation, knowing of the sale and assignment of a contract belonging to such corporation, but which defendant paid for out of his private funds, and claimed as his own, remained silent for nine months thereafter, the corporation is guilty of laches precluding a recovery, p. 295.</p> <p>8. Pleadins. — Anstoers.—Denial.—Confession and Avoidance. — An answer, by an individual, confessing that defendant' corporation owned the iron pipe — the subject-matter of the litigation — is not an admission of such ownership, where the general denial was also filed, the court finding that defendant owned such pipe personally. p. 296.</p> <p>9. Corporations. — Laches. — Stockholders.—Rights of. — Where a corporation has been guilty of laches precluding a recovery by it, its stockholders have no standing to recover on its behalf, p. 296.</p> <p>10. Account. ■— Corporations. — Officers. — Interested persons may compel an officer of a corporation, who has transacted business affecting their rights, to account, p. 296.</p>

Prom Dubois Circuit Court; E. A. Ely, Judge. Action by Rutb Masterson, as administratrix of the estate of Joseph Masterson, deceased, against the Southern Railway Company and others. Prom a judgment for defendants, notwithstanding a general 'verdict for plaintiff for $3,500, plaintiff appeals. On reversal by the Appellate Court, transferred to Supreme Court under subd. 2, §1394 Burns 1908, Acts 1901, p. 565, §10.

<p>Prom Clark Circuit Court; Harry G. Montgomery, Judge.</p> <p>Action by the Baltimore & Ohio Southwestern Railroad Company against Oregon Township of Clark County. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901, p. 565, §10.</p>

<p>1. Words and Phrases. — “Premises.” — Notice. — Intoxicating Liquors. — -Tbe word “premises,” as used in §S318 Burns 190S, Acts IS75 (s. s.), p. 55, §3, providing that an applicant for liquor license must give a public notice thereof stating the “precise location of the premises” whereon he desires to sell, imports a definite tract of land and the building located thereon in which he desires to sell. p. 306.</p> <p>2. Intoxicating Liquors. — Notice.—Requisites.—A notice of an application for a liquor license should describe the lot on which the building stands in which the sales are to be made. pp. 307, 308.</p> <p>3. Same. — Application.—Description.—Notice.—The description of the room in which sales are to be made, in an application for liquor license, must be specific and definite, but the description in the notice is not required to describe such room. p. 308.</p>

<p>1. Appeal. — Interlocutory Orders for Sale of Real' Estate. — Partition — Under cl. 16, §1392 Burns 1908, Acts 1907, p. 237, §1, an appeal to the Supreme Court lies from an interlocutory order for the sale of real estate in a partition suit. p. 310.</p> <p>2. Mortgages. — Subrogation.—Husband and Wife. — Where a husband conveyed a tract of land encumbered by a purchase-money mortgage, the grantee agreeing to pay same, and the wife not joining in the conveyance, such grantee is subrogated to the rights of such mortgagee as against the wife’s claim to a one-third interest upon her husband’s death, pp. 312, 313.</p> <p>3. Descent and Distribution^ — Decedents’ Estates. — Vendors’ Liens. — Rights of Widoiv. — The widow is not entitled to one-third of her husband’s real estate, as against the holder of a purchase-money mortgage thereon, but has the right to have two-thirds thereof sold and the proceeds applied thereon, and if that is insufficient, she is entitled to what is left of the remaining one-third after satisfaction of such mortgage, p. 313.</p> <p>4. Vendor and Purchaser. — Purchaser’s Improvements. — Deeds.— Wife’s Failure to Join in. — The purchaser of lands is entitled, in a partition suit brought by the grantor’s wife, who failed to join in the conveyance, to be reimbursed for improvements made upon such land, in the lifetime of the grantor, which enhanced the price thereof, p. 313.</p> <p>5. Same. — Wife’s Failure to Join. — Rentals.—Improvements.—A wife who failed to join her husband in the conveyance of his real estate, is not entitled, in a partition suit brought after her husband’s death, to have the rental value of the lands set off against the grantee’s improvements, p. 314.</p> <p>6. Deeds. — Failure of Wife to Join in. — Effect.—The failure of a wife to join her husband in a deed to his land has no effect unless she survives him, in which event she takes one-third thereof, p. 314.</p> <p>7. Partition. — Tenants in Common. — Rentals.—An occupying tenant in common of lands is not liable to his cotenants for rents unless he excludes such cotenants or receives rents from third persons, p. 314.</p> <p>8. Pleading. — Gross-Complo/lnt.—Partition.—Rentals.—In a partition suit, the defendants, in order to recover for improvements to the lands, must set up their claims therefor by a cross-complaint, p. 315.</p> <p>9. Same. — Answer in Denial. — Agreements as to Proof of Defenses. —Partition.-—Improvements.—In a partition suit, where the general denial was answered, and where the parties agreed that “all matters that could properly be pleaded in said cause” could be proved thereunder, matters properly brought in by cross-complaint and admitted by the parties below will not, on appeal, be considered as without the terms of such agreement, p. 315.</p> <p>10. Appeal. — Bill of Ea-ceptions. — Whether in Record. — Where the motion for a new trial was overruled on April 19, sixty days’ time being given foi- the filing of a bill of exceptions, a bill filed on June 6, is in time. p. 315.</p> <p>11. Same. — Weighing Evidence. — The Supreme Court will not weigh conflicting oral evidence, p. 316.</p> <p>12. Same. — Reversal.—New Trial. — It is discretionary with the Supreme Court, in the reversal of a ease, to order judgment on the special findings, or to order a new trial, p. 316.</p>

<p>1. Raiiboads. — Highway Grossings. — Construction of. — Under §5195 Burns 1908, §3903 R. S. 1881, it is the duty of railroad companies to construct and keep in safe condition all highway crossings, whether the highways were established before or after the building of the railroads, p. 319.</p> <p>2. Railroads. — Franchise.—Existing Statutes. — Where a statute imposing certain duties upon railroad companies, was in force at the time of a railroad company’s acceptance of a franchise, such company impliedly assumes the duties imposed by such statute, p. 320.</p> <p>3. Same. — Construction of Highway Crossings. — Costs of. — The statute (§5195 Burns 1908, §3903 R. S. 1881), providing that railroad companies shall construct and keep safe their highway crossings, requires such construction at their expense, p. 320.</p> <p>4. Eminent Domain. — Police Power. — Distinction.—The right of eminent domain is a reserved power of sovereignty, exercisable for the public welfare upon payment of full compensation; while the exercise of the police power implies a sovereign regulation, without compensation, of a supposed wrong or evil, for the benefit of the public safety, health, morals, or general welfare, p. 321.</p> <p>5. Constitutional Law. — Police Power. — Objects. — Under the police power, the state may legislate concerning foods, intoxicating liquors, theaters, fire escapes, buildings, machinery, mines, population and safety; and no compensation for losses sustained can be recovered, p. 322.</p> <p>6. Same. — :Railroads.—Construction of Highway Crossings. — Railroad companies may be compelled, under the police power, to construct, at their own expense, highway crossings, p. 323.</p> <p>7. Railroads. — Eminent Domain. — Police Power. — Streets.—Damages. — The property taken from a. railroad company, by a city, for the extension of its streets, requires compensation; but such company can require no pay for the construction of the crossing required by the opening of such streets, p. 324.</p> <p>8. ' Constitutional Law. — Compliance mth Police Regulations.— Compensation. — Compliance with police regulations, by corporations, requires no compensation, and though property is injured or lost thereby, it does not amount to a taking of private property within the inhibitions of the state or federal Constitution, p. 324.</p> <p>9. Railroads. — Easements.—Condemnation of, for Street. — A railroad company owns only an easement in the land; and the condemnation of such land for street purposes, where -the company, after the crossing is constructed, has the use of its right of way, does not injure such company in the enjoyment of its right of way. p. 325.</p>

<p>Prom Tipton Circuit Court; J. F. Elliott, Judge.</p> <p>Petition for improvement of highway by John B. Find-ling and others, against which Edward E. Foster and others remonstrate. From a judgment for remonstrants, petitioners appeal.</p>

<p>1. Contracts. — Construction.—Fairness.—A contract must be construed, if possible, so as not to work an injustice, p. 339.</p> <p>2. Same. — Railroad Construction. — Changes in Plans. — A provision in a railroad construction contract authorizing the company to change the plans and location, means only such incidental changes as might reasonably be expected in such work, and does not authorize any radical departure from the work as outlined in the plans and specifications, p. 340.</p> <p>3. Same. — Plans and Specifications. — Construction.—A railroad construction contract providing that the work shall be done “in accordance with plans and specifications to be furnished and stakes to be set” does not leave the whole agreement unsettled, since such provision must be construed in the light of the fact that the plans and specifications were made a part thereof at the time of the execution of the contract, p. 340.</p> <p>4. Same. — Plans.—Unwarranted Changes. — Special Findings.— Where, in an action for money due under a contract for railroad construction, the special findings show that the grade of the road was increased in height, the yard lengthened and widened, an under-grade instead of an over-grade crossing made, the fills increased 61 per cent and the cuts 80 per cent, an unwarranted change is shown from the contract which authorized the company to change the plans and location of the road. p. 341.</p> <p>5. Appeal. — Failure to File Briefs. — Reversal.—Where a part of the appellees have filed no brief, and the case must be reversed as to the principal appellee, who filed a brief, the case may be reversed as to the appellees filing no brief as upon error confessed. p. 341..</p> <p>6. Contracts. — Change of Plans. — Ignorance Thereof by Contract- or’s Surety. — Special Findings. — Where the special findings show that the contractor’s surety, in attempting to complete the construction of certain railroad grading,-did a great amount of extra grading, cutting and filling, at the order of the company’s engineer, and without knowledge that such work was not set forth in the plans, no consent to do such work under the contract is shown, p. 341.</p> <p>7. Same. — Extra Work. — Compensation.—Where the surety of a contractor who had agreed to do certain grading and filling for a railroad company, undertook to complete such contract, doing a large amount of extra work at the order of- the company, in ignorance of the fact that such work was not specified in such contract, the measure of damages is not the reasonable value of the entire work as if the entire contract was abrogated, p. 342.</p> <p>8. Contracts. — Breach.—Damages.—Where defendant has violated his contract, the plaintiff’s damages are determined by ascertaining the amount receivable under such contract, and not by determining the independent value of the service, p. 342.</p> <p>9. Action. — Breach of Contract. — Damages.—Assumpsit.—For a breach of contract plaintiff may sue on such contract, claiming damages, or he may sue in assumpsit for the value of the services performed, not exceeding, in such case, the contract price, p. 343.</p> <p>10. Contracts. — Breach. — Railroads. — Contractors. — Sureties.— Where a railroad company, while its contractor was grading its roadbed, made radical changes in the plans, and the contractor’s surety subsequently undertook to complete the contract, such change of plans cannot, as affecting such surety, be construed as a refusal to proceed according to such contract, p. 343.</p> <p>11. Same. — Breach.—Rescission.—A breach of contract authorizing rescission, must be unqualified, and must be acted upon by the party entitled to rescind, p. 343.</p> <p>12. Same. — "Void.”—Voidable.—A contract containing an express provision, in favor of one party thereto, that it shall be “void” upon a certain condition, is voidable, upon a breach of such condition, at the election of such party, p. 344.</p> <p>13. Principal and Agent. — Notice—Contracts.—Breach.—Knowledge. — Where a surety company’s agent was in charge of the construction of certain railroad grading, and he knew of certain changes in the plans of such work, such surety company is conclusively presumed to know of such changes, p. 344.</p> <p>14. Same. — General Powers. — Contracts.—Construction.—A general agent of a surety company entrusted by such company with the construction of certain railroad grading, has the implied power to determine the proper construction of an ambiguous contract in reference to such work. p. 344.</p> <p>15. Principal and Surety. — Discharge.—Change of Contract. — The material change of a contract by the principals, without the consent of the surety, discharges such surety, p. 345.</p> <p>16. Same. — Discharge.—Waiver.—A surety who has a right of discharge because of a change in the contract by the principals, may waive such right by subsequent conduct involving knowledge and intent, p. 345.</p> <p>17. Notice.- — Actual.—Constructive.—Notice sufficient to put a person upon inquiry is not always equivalent to actual knowledge, p. 345.</p> <p>18. Notice. — Actual.—Constructive.—Effect.—A person having constructive knowledge of a right will not be held to have the equiva- ■ lent of actual knowledge, unless it would be unconscionable for him to be permitted to deny knowledge, p. 345.</p> <p>10. Action. — Assumpsit.—Equitable Character of. — The action of assumpsit is governed by equitable principles, p. 340.</p> <p>20. Contracts. — Breach.—Esotras.—Damages.—Rules Governing.— Where a surety company, compelled to fulfill its principal’s contract for certain railroad grading, employed a general agent to perform such work, and he was provided with the plans for such work and, at the instance of the railroad company, ostensibly under the contract, did a great amount of extra work, his constructive knowledge of the breach precludes his company from recovering the reasonable value for such extra work without regard to the contract rate. p. 346.</p> <p>21. Same. — Breach.—Constructive Notice of. — A surety company which undertakes to complete its principal’s contract for the construction of a certain railroad grading, is, prima facie, presumed to know when the contract is violated by the railroad company in demanding radical increases in the amount of work. pp. 346, 364.</p> <p>22. Same. — Breach. — Railroad Grading. — Estimates.—Knowledge of.— It should be assumed that a contractor for railroad grading has knowledge of the engineer’s estimate attached to the plans and specifications, and that extra work is being imposed, where he is ordered to do work which will radically increase such estimates, p. 348.</p> <p>23. Notice. — Constructive.—Evidence.—Circumstantial.—Constructive knowledge of a fact may be proved by circumstantial evidence; and upon proof of such knowledge, there is a disputable presumption of actual knowledge, p. 349.</p> <p>24. Contracts. — Change. — Knowledge.—Weighing Evidence. — Appeal. — Where the evidence shows that a contractor saw the changes made in the' grades of the work he contracted to perform, he will be held to a knowledge thereof; and a finding that he had no knowledge will not be sustained, on appeal, since it is not supported by the evidence. p.-350.</p> <p>25. Same. — Extras.—Compensation—Wheve the evidence shows that a contractor did extra work, both parties apparently thinking at the time that it was covered by the contract, the compensation therefor should be measured by the contract price, pp. 352, 358.</p> <p>26. Pleadinq. — Estoppel.—An estoppel to be available must, ordinarily, be specially pleaded; but a party does not waive the estoppel where he has no opportunity to plead it. p. 353.</p> <p>27. Same. — Complaint. — Contracts. — Extras. — Negativing Estoppel. — Evidence.—Where a complaint for the performance of extra work alleged facts showing that the work was done in an endeavor to carry out a contract, but further stated that the contractor had no knowledge that such work was materially different from’ that required by the contract, the demand being for. a recovery upon the quantum meruit, and not under the contract, the proof must sustain such allegations, p. 353.</p> <p>28. Pleading. — Complaint.—Exceptions.—Anticipating Defenses.— A complaint which brings the cause of action within an exception to the general rule, does not anticipate a defense; but the facts necessary to establish the exception must be proved, p. 354.</p> <p>29. Same. — Complaint. — Contracts. — Breach.—Estoppel.—A complaint alleging, that, without knowledge, a contractor performed extra work, and demanding compensation apart from the contract rate, a general denial being filed, imposes upon the contractor the duty of showing that such work was done without knowledge, the defendant being under no duty to plead an estoppel in answer, p. 354.</p> <p>30. Estoppel. — Equitable.—Purpose.—The doctrine of equitable estoppel applies to cases at law as well as in equity, and is based upon the ground of promoting the justice of the individual ease, p. 355.</p> <p>31. Contracts. — Construction. — Equitable Estoppel. — A plaintiff will not be permitted to insist upon a certain construction of his contract, where his conduct in reference thereto would make it inequitable to the defendant so to construe same. p. 356.</p> <p>32. Same. — Change of. — Notice.—Where a railroad company employs a contractor to do certain grading, and the company orders certain extra work done, the contractor having knowledge thereof, and making no objection thereto, such contractor can recover only the contract rate therefor, p. 362.</p> <p>331 Same. — Changes.—Compensation.—Where a railroad company orders its contractor to do work wholly foreign to the contract, it is liable for the reasonable value thereof, regardless of the contract, p. 362.</p> <p>34. Same. — Changes.—Extras.—Engineer’s Decision. — The decision of defendant railroad company’s engineer as to extras, as provided for in a contract for grading, does not apply to work caused by unauthorized changes in the contract, p. 363.</p> <p>35. Appeal. — Consideration of.- — Questions Not Presented in Briefs. —Where the Supreme Court is compelled to examine the record, * it will determine the case upon the justice thereof, rather than ' upon the points and arguments in the briefs, p. 363.</p> <p>36. Same. — Decisions.—Objects.—The object of a decision on appeal should be to determine the substantial justice of the case, p. 364.</p> <p>37. Principal and Subety. — Surety’s Performance of Principal’s Contract. — Rights.—A surety, in the performance of the principal’s contract, stands, so far as concerns the collection of the compensation therefor, in the same position as the principal, p. 366.</p>

<p>Prom Pike Circuit Court; E. A. Ely, Judge.</p> <p>Suit by Steele P. Gilmore against the Princeton Coal & Mining Company and others. Prom a decree for plaintiff, defendants appeal. Appealed from Appellate Court under subd. 3, §1394 Burns 1908, Acts 1901, p. 565, §10. Appeal</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Catherine A. Hassett, as administratrix of the estate of Martin Hassett, deceased, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations. — Powers.—Eminent Domain. — Corporations are creatures of statute, and their powers are conferred thereby; and they may exercise the power of eminent domain only where such right is expressly granted, and where the purpose is public, such grants being strictly construed, p. 387.</p> <p>2. Railroads. — Consolidation.—Statutes.—Under §3971 R. S. 1881, Acts 1853, p. 105, §1, railroad companies organized in this State, were given the power to consolidate with companies organized in other states; and under §5380 Burns 1908, §3975 R. S. 1881, Acts 1S53, p. 107, §1, such power was extended to companies organized after the taking effect of such former statute, p. 388.</p> <p>3. Same. — Corporate Existence of. — Consolidation.—Piling Articles. —An Ohio railroad company, consolidating with an Indiana railroad company, and filing the agreement of consolidation with the 'Secretary of State of the State of Indiana, as provided by the Ohio statute (§3381 Ohio R. S. 1881), completes such consolidation, §5375 Burns 1908, §3905 R. S. 1881, providing that a copy of the resolution authorizing consolidation shall be filed in the recorder’s office of each county through which such road extends, applying to union companies, and not to companies consolidating their capital stock, p. 392.</p> <p>4. Railroads. — Consolidation.—Prior Consolidation of One of the Companies. — A consolidated railroad company may consolidate with another railroad company, p. 393.</p> <p>5. Same. — Consolidation.—Several Companies. — Irregular Proceedings. — Any number of railroad companies may consolidate, and though their proceedings therein may be irregular, they do not wholly invalidate the corporate existence of the consolidated company. p. 393.</p> <p>O. Same. — Consolidation.—Intersecting Roads. — Statutes.—Under §5335 Burns 1908, §3947 R. S. 1881, conferring upon consolidated railroad companies all of the rights, duties and privileges of the constituent companies, and §5339 Burns 1908, §3951 R. S. 1881, giving a railroad company the power to consolidate with other companies “in the continuous line,” authorizes a consolidation of non-competing lines of railroad, though they intersect at a terminal point, p. 393.</p> <p>7. Same. — Consolidation.—Interstate.—Domestic—The consolidation of railroads pursuant to the laws of several states creates one corporation, which is regarded as domestic in each of the states through which its lines extend, p. 394.</p> <p>8. Same. — Consolidation.—Powers.—Duties.—In the absence of restrictions, authority to consolidate confers upon the resultant corporation all of the rights, and imposes the duties, of the constituent corporations, p. 395.</p> <p>9. Same. — Consolidation. — Eminent Domain. — Consolidated railroad companies in this State have the right to exercise the power of eminent domain, p. 395.</p> <p>10. Same. — Local Changes in Route and Grade. — Statutes.—Under the act of 1903 (Acts 1903, p. 21S, §5171 Burns 1905), authorizing local alterations along the line of a railroad for the improvement thereof, a railroad company may raise embankments in order to eliminate grades, and to do so, it may appropriate land outside of its right of way, although its predecessor had appropriated a strip of land 100 to 110 feet wide for the making of such embankment, p. 395.</p> <p>11. Same. — De Eacto. — Consolidation. — Irregularities.—Mere irregularities in the consolidation of railroad companies do not have a greater effect than to render the consolidated company a de facto corporation, p. 397.</p> <p>12. Same. — De Facto. — Eminent Domain. — A de facto railroad corporation may exercise the power of eminent domain, p. 397.</p> <p>13. Same. — Consolidation.—Evidence.—Where an Ohio railroad company consolidated with an Indiana company, and.the certificate thereof was filed with the Secretary of State of the State of Indiana, and such consolidated company operated its roads for seventeen years, its corporate existence cannot be attacked in a proceeding by it to appropriate lands to make a fill for the purpose of eliminating a grade, thus making its road more secure, p. 397.</p> <p>14. Railroads. — Consolidation. — Irregularities.—Directors.—Meetings. — Place of. — A railroad consolidation, of Ohio and Indiana companies, effected by virtue of statutes of both states, is not void because of irregularities in the issuance of stock, and of the term, residence, number and place of meeting of the board of directors; and such matters can be inquired into only by an appropriate proceeding by the State, p. 398.</p> <p>15. Same.' — ■LocUl Improvements. — Changes.—Piling Maps. — Blue- . print Copies. — The filing, with the clerk, of a blue print copy of an original map and profile of the proposed local changes in the line of railroad, when shown to be authentic, is sufficient, p. 398.</p> <p>30. Same. — Changes.—Eminent Domain. — Objections Available on Preliminary Hearing. — In a proceeding, in eminent domain, for the appointment of appraisers to assess damages for lands appropriated for a change in a railroad right of way, the only issues allowable, before the making of such appointments, are such as either defeat or abate the right to exercise the power of eminent domain, p. 399.</p> <p>17. Constitutional Raw. — Eminent Domain. — Compensation Pirst Paid. — Appeal.—Statutes authorizing railroad companies to take possession of condemned lands after a trial and upon payment of the adjudged damages, are not unconstitutional because they authorize such taking before the final decision on appeal, such right of appeal being a matter of grace and not of right, p. 399. .</p> <p>IS. Trial. — Interrogatories to Party. — Railroads.-—-Eminent Domain. — In the preliminary hearing for the appointment of appraisers in an eminent domain proceeding by a railroad company, defendants’ interrogatories to such company, relating to the number, residence and place of election of such company’s directors, and residence of its general officers, should be rejected, and their motion for the company to produce certain papers relating thereto, denied, p. 401.</p> <p>19. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 402.</p>

<p>1. Pleading. — Complaint.—Contracts.—Ratification.—Mining Companies. — Physicians.—Emergencies.—A complaint alleging that defendant coal mining company’s mine superintendent employed plaintiff, a physician, to attend a miner who was critically injured in defendant’s mine; that such superintendent immediately reported such employment to the defendant, whose president and general manager ratified such contract, is based upon an employment by the defendant’s president and general manager, rather than by its mine superintendent, p. 404.</p> <p>2. Contracts. — Ratification by Officers of Corporation.- — Unless the president who was also the general manager of a coal mining company has authority, either express or implied, from the board of directors, to make a contract in the first instance, he cannot ratify one made by the company’s superintendent employing a physician for an injured miner in case of an emergency, p. 404.</p> <p>8. Corporations. — Acts by Agents. — Corporations act exclusively by agents, and the relations of such agents to their principals are governed by the same rules as prevail with individuals and their agents, p. 405.</p> <p>4. Same. — Presidents.—Powers.—Presidents of corporations have only such powers as are given to them by law, or by their boards of directors, p. 405.</p> <p>5. Corporations. —■ Presidents. — Authority. — Bmden of Proof.— When the president of a corporation does an act within the scope of the usual duties of the chief officer, it is presumed that he acts with authority, and whoever alleges the contrary must prove it; but where the chief or other officer performs an act not pertaining to the chartered business nor established by usage it must usually be alleged and proved that he was authorized by the directors. p. 405.</p> <p>6. Same. — Commercial.—Officers.—Power to Employ Physician for Injured Employes — Railroads.—The officers of commercial corporations have no power, ordinarily, to employ physicians to attend injured employes, though in certain cases of emergencies the officers of railroad companies may so employ, p. 405.</p> <p>7. Pleading. — Complaint. — Coal Mining Company. — Employing Physician. — Emergency.—An allegation that the injured miner’s wounds were of “so serious a nature as to create an emergency for the immediate attention of a physician * * * in order to save said employe’s life,” is but a conclusion, the facts showing the emergency being essential, p. 407.</p> <p>8. Same. — Complaint.—Want of Facts. — Presumptions.—Where the complaint fails to state the facts, the presumption is that they are unfavorable to the plaintiff, p. 408.</p>

Prom Cass Circuit Court; John S. Lairy, Judge. Claim by Israel Lehman and another against Miami county. Prom an allowance by the board of commissioners, Milton Kraus appeals. Prom a judgment for claimants in the circuit court, he again appeals. Transferred from Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901, p. 565, §10.

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by James C. Gillaspy against M. O’Connor & Co. From a judgment for plaintiff, defendant appeals.</p>

<p>From Howard Circuit Court; J. F. ElUott, Judge.</p> <p>Action by the State of Indiana, on the relation of Zadoc Smith, against the Advisory Board of Harrison Township. From a- judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading.- — Demurrer.—Parties.—Right to Sue. — A demurrer for want of facts, questions the plaintiff’s right to maintain the action, p. 453.</p> <p>2. Receivers. — Actions by. — Authority.—The receiver has no right to maintain an action authorized hy an order of the court, where the law does not authorize the court to make such an order, p. 454.</p> <p>3. Same. — •-Insolvent Corporations. — Stockholders.—Statutory Lia-Íbility to Creditors. — Parties to Actions Concerning. — The receiver of an insolvent corporation has no right to maintain an action, for the benefit of creditors, to recover upon the stockholders’ statutory liability to creditors, such action being purely personal to the creditors, p. 454.</p> <p>4. Corporations. — Stockholders. — Statutory Liability. — Rights.— l Corporations have no interest in their stockholders’ statutory lia- | bility to the corporation’s creditors, p. 454.</p> <p>5. Action. — Numerous Parties. — Stockholders.—Statutory Liability. — Receivers.—The receiver of an insolvent corporation is not a creditor thereof, and cannot, .under §270 Burns 1008, §209 R. S. 1881, providing that where the persons interested in an action are numerous, one may sue for the benefit of all, maintain an action for the enforcement of the stockholders’ statutory liability, for the benefit of all of such corporation’s creditors, p. 455.</p>

<p>1. Corporations. —Hydraulic.—Hotes.—Execution.—Statutes.—Under §4591 Burns 1908, §8698 R. S. 1881, providing that “all notes, bonds or contracts entered into by the company, signed by the president, shall be binding on the company,” a note signed: “Elkhart Hydraulic Co., by J. L. Brodrick, Pres.”, does not bind such company, unless it be further shown that such note was “entered into by the company.” p. 457.</p> <p>2. Corporations. — Agents.—Execution of Notes. — Since a corporation can act only through agents, a denial by it of the execution of a note challenges the authority of its agent to execute such note. p. 458.</p> <p>8. Pueadins. — Answer.—Non Est Factum. — Notes.—Corporations.— Agents. — In an action against a corporation to recover upon a note, the answer of non est factum casts the burden upon plaintiff of proving that the agent executing such note had authority to do so. p. 458.</p> <p>4. Evidence. — Execution of Note by Corporation. — President’s Signature. — Inferences.—Judicial Notice. — Non Est Factum. — Under a corporation’s answer of non est factilm, in an action against it upon a note signed by its president, the. authority of the president must be affirmatively proved, the courts being unable to take judicial knowledge of by-laws or customs of private corporations, and there being no inference of such authority from his signature, p. 458.</p> <p>5. Corporations. — Notes. — Execution.—President.—The president of a corporation has no power to execute a note on behalf of such corporation, unless such power is given by the corporation charter, or by the board of directors, p. 459.</p> <p>6. Same. — Execution of Notes. — President.—Authority.—Ratification. — Custom.—Estoppel.—A note signed by the president of a private corporation is enforceable against the company only where the holder shows that such president was authorized so to do by the corporation charter, board of directors, or custom, or by the company’s ratification thereof, or by estoppel, p. 459.</p>

From Hancock Circuit Court; William A. Hough, Special Judge. Supplemental drainage petition by Caroline M. Righter, against which A. R. Keaton and others remonstrate. From a judgment for remonstrants, petitioner appeals.

Prom Jasper Circuit Court; Charles W. Hanley, Judge. Drainage proceeding by William H. Tyler and others, against which the Northern Indiana Land Company and others remonstrate. Prom an interlocutory judgment overruling such remonstrance, remonstrators appeal.

<p>From Jackson Circuit Court; Joseph E. Shea, Judge.</p> <p>Prosecution by the State of Indiana against George Sutton. From a judgment for defendant, the State appeals.</p>

<p>1. Schools. — Licenses.—Certificate of State Normal School. — The certificate of proficiency issued by the Indiana State Normal School to post-graduates does not constitute a license entitling such graduates to teach in the common schools, p. 483.</p> <p>2. Same. — County Superintendents. — Eligibility. — State Normal Certificates. — A holder merely of a certificate of proficiency from the State Normal School is not eligible to the office of county superintendent, pp. 486, 487.</p> <p>3. Same. — Licenses.—Effect.—Evidence.—A license, in the absence of fraud, is conclusive evidence of the holder’s qualifications to teach, and no extrinsic evidence can supply its place, p. 486.</p> <p>4. Same. — Licenses.—Need of. — Although a person’s qualifications may be ample, he is not entitled to teach in the common schools, unless he is duly licensed to do so. p. 487.</p> <p>5. Quo Warranto. — County Superintendents. — Eligibility.—In a quo warranto proceeding, it is incumbent upon the relator claiming to be the duly elected county superintendent to prove his own title, the weakness of his adversary’s title being immaterial, p. 487.</p>

<p>From Dearborn Circuit Court; George E. Dotoney, Judge.</p> <p>Prosecution by the State of Indiana against William P. Squibb. From a judgment for defendant, the State appeals.</p>

<p>Prom Porter Circuit Court; John F. McClure, Special Judge.</p> <p>Appeal by the New York, Chicago & St. Louis Railroad Company from a street assessment made by the City of Hammond. Prom a judgment against such company, it appeals.</p>

<p>1. Quieting Title. — Ejectment.—Evidence-Insanity.—Under an ordinary complaint to quiet title, or for ejectment, on behalf of the heirs of a deceased grantor, evidence of such grantor’s mental incapacity is admissible, and the question of placing the defendant grantee in statu quo, could not arise upon the complaint, but could arise only upon the evidence, p. 503.</p> <p>2. Same. — Ejectment.—Insanity.—Setting Aside Conveyance for.— Under an ordinary suit to quiet title, or an action in ejectment, a conveyance of lands by a person of unsound mind may be avoided, p. 504.</p> <p>3. Deeds. — Voidable.—Grantors.—Insanity.—Notice.—Avoidance.— Equity. — A deed executed by a person of unsound mind, the grantee having no knowledge of such condition, is voidable only; and in such case the grantee is entitled to be placed in statu quo . before such avoidance can be effected, p. 504.</p> <p>4. Pleading. — Complaint. — Inferences. — Evidence. — A complaint must directly allege every necessary fact entitling the plaintiff to a recovery; but inferences may be drawn in determining whether certain necessary facts are proved by the evidence, p. 505.</p> <p>5. Same. — Complaint.—Deeds.—Setting Aside. — Insanity.—Knowledge. — A complaint alleging that the grantor in a deed was eighty-five years old, blind, paralyzed and feeble in body, is insufficient to show that the grantee in dealing with her must have known that she was a person of unsound mind. p. 505.</p> <p>6. Same. — Complaint.—Deeds.—Avoidance.-—Mental Vnsoundness. —Equity.—A complaint to set aside a deed because of the grant- or’s insanity, where it fails to allege that the grantee had knowledge thereof, must show a restitution of the consideration, or offer thereof, p. 505.</p> <p>7. Same. ■ — ■ Complaint. — Theory. — Change of, on Appeal. — The theory of a complaint adopted by the trial court, and upon which the case was tried, cannot be changed on appeal, p. 506.</p> <p>8. Same. — Complaint.—Setting Aside Conveyance for Fraud. — A complaint to set aside a conveyance because of the grantee’s representations, must show that such representations were false, or fraudulent, p. 507.</p> <p>9. Same. — Complaint. — Conveyances.—Fraud.—Presumptions. —A complaint to set aside a conveyance because of the grantee’s fraud in procuring same, must state specifically the facts constituting such fraud, fraud never being presumed, p. 507.</p> <p>10. Witnesses. — Parties. — Decedents’ Estates. — Heirs.—Opinions. —Insanity.—In a suit by beirs of a grantor to set aside ber conveyance because of ber insanity, sucb beirs are competent witnesses to detail facts occurring in ber lifetime and from sucb facts to give their opinions as to her sanity, p. 508.</p> <p>11. Same. — Death.—Testimony at Former Trial. — How Proved.— Any person who heard a decedent’s testimony at a former trial of the pending ease is competent to testify thereto, though there .was an official stenographer and his notes are available, the weight of the testimony being for the jury. p. 508.</p>

Prom Allen Circuit Court; E. 0 ’Rourhe, Judge. Action by the State of Indiana, on the relation of the First National Bank of Chicago, against the City of Auburn and others. From a judgment for plaintiff, defendants City of Auburn and others appeal.

<p>1. Indictment and Information. — Negativing Exceptions or Provisos in Statute. — It is not necessary, in an indictment, to negative the exceptions or provisos in the statute, where they form no part of the definition of the offense, or are in subsequent sections of the statute, or are set out in separate provisions of the same section, p. 538.</p> <p>2. Same. — Intoxicating Liquors. — Keeping Place for Unlawful Sales. — Negativing Exceptions. — Under §8351 Burns 1908, Acts 1907, p. GS9, §1, providing “that any person not being licensed!’ to sell intoxicating liquors, and “any person who shall keep, run or operate a place” where such liquors are sold unlawfully, shall be guilty of a misdemeanor, an indictment under the first .part must charge that defendant was not licensed, but under the second part, such charge, as well as that defendant ivas not a wholesaler, is unnecessary, though there is a subsequent proviso exempting wholesalers from the provisions of such statute, a license constituting no defense to a charge under the second part. p. 538.</p> <p>3. Same. — Duplicity.—Intoxicating Liquors. — Keeping Place for Unlawful Sales. — Proof.—Under §8351 Burns 1908, Acts 1907, p. 689, §1, declaring that “any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away” unlawfully, “or any person who shall be found in possession of such liquors for such purposes,” shall be guilty of a misdemeanor, an indictment charging that defendant kept, ran and operated such a place, and had such liquors in his possession for such' purpose, is not. bad for duplicity, one crime only being charged, proof of the violation of one or both provisions thereof being sufficient, p. 538.</p> <p>4. Trial. — Motion for Continuance. — Ground for. — New Trial.— Appeal. — Criminal Law. — The ruling on a motion for a continuance constitutes ground for a new trial, and cannot be assigned, as error, independently on appeal, p. 539.</p> <p>5. Same. — Judgment.—Motion in Arrest. — New Trial. — Appeal.— The filing of a motion in arrest of judgment, in a civil or criminal case, with certain exceptions, cuts off the right to move subsequently for a new trial; and an assignment, on appeal, that the court erred in overruling such motion for a new trial, cannot be considered, p. 539.</p>

<p>From Posey Circuit Court; O. M. Welborn, Judge.</p> <p>Action by the State of Indiana, on the relation of Minor. Fairchilds and others, against John W. Anderson, as Trustee of Robb School Township. From a judgment for defendant, plaintiff appeals.</p>

<p>Prom Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by Harry D. Pierson against the Cumberland Telephone & Telegraph Company. Prom a judgment for plaintiff, defendant appeals.</p>

Prom Jackson Circuit Court; Joseph E. Shea, Judge. Drainage petition by Sarah Lena Lauster and others, against which Fred E. Meyers and others remonstrate. From a judgment for remonstrants, petitioners appeal.

<p>1. Pueadins. — Complaint.—Sales.—Principal and Agent. — Commissions. — Frauds, Statute of. — A complaint alleging that defendant employed plaintiff, as agent, to sell certain stock; that defendant agreed to pay plaintiff the sale price in excess of a certain sum per share; that plaintiff secured a purchaser therefor, contracted such stock to such purchaser, and notified defendant thereof, who ratified such contract; that such purchaser was ready to execute the contract, but defendant refused to consummate such sale, and demanding judgment for such excess in the sale price, is not bad on the grounds that the agent sold such stock in such agent’s own name, or that the contract of employment violated the statute of frauds (§7469 Burns 1908, §4910'R. S. 1881). p. 553.</p> <p>2. Contracts. — Principal and Agent. — Sales. ■— Commissions. — Frauds, Statute of. — The statute of frauds (§7469 Bums 1908, §4910 B. S. 1881) does not apply to contracts made by a principal with his agent for the payment, to such agent, of a commission on sales made by such agent, where the purchaser was ready to perform the contract entered into with such agent, p. 556.</p> <p>3. Same. — Abandonment of. — Agents.—Return of Consideration.— Where an agent contracted, on behalf of his principal, to sell and deliver certain stock to a purchaser, the purchaser paying to such agent a part of the purchase price, and the principal afterward refused to deliver such stock, the agent’s return to the purchaser of the part payment does not constitute an abandonment of the contract of sale as to such agent, and he is entitled to recover his commission on such sale. p. 566.</p> <p>4. Same.- — Sales.—Principal and Agent. — Appeal.—Weighing Evidence. — Where the evidence of an agent shows that his principal directed him to sell certain stock and he procured a purchaser therefor, the principal at first affirming the sale and afterward repudiating same, and the principal’s evidence is in conflict therewith, the jury’s verdict in favor of the agent for the commission due upon such sale will not be disturbed on appeal, p. 566.</p> <p>5. Appeal. — Assignments of Error. — Permitting Amendments to Complaint. — The ruling of the trial court in permitting the amendment of a complaint after the beginning of the trial must be as- . signed as error independently on appeal, and does not constitute a reason for a new trial, p. 567.</p> <p>6. New Trial. — Continuance.—Causes for. — Row Shown. — Appeal. —In order to question, on appeal, the trial court’s ruling on a motion for a continuance, the record must contain an affidavit filed in support of such motion, showing the causes for asking such continuance, p. 567.</p> <p>7. Trial. — Interrogatories.—Construction of Written Contract.— It is improper to submit an interrogatory to the jury asking for a construction or interpretation of a written offer, such question being for the court, p. 568.</p> <p>8. Contracts. — Agency.—Consideration.—An offer made to an agent to give him a certain sum for the sale of stock, and an acceptance thereof by such agent, constitute a contract, no other consideration being necessary, p. 569-</p> <p>9. Trial. — Interrogatories.—Materiality.—Assumption of Facts.— It is not erroneous for the court to refuse to submit requested interrogatories the answers to which must be immaterial, or which contain assumptions of facts in dispute, p. 569.</p> <p>10. Evidence. — Impeaching. — Agency.—Contracts.—Breach.—Sitbsequent Transactions. — In an action by an agent for the recovery of commissions upon a sale "which his principal had repudiated, evidence that plaintiff, several days after such repudiation, asked such principal for an option on the stock — the subject of such sale — is not admissible, the rights of the parties being legally fixed by such repudiation, p. 5G9.</p> <p>11. Trial. — Instructions. — Correctness.—Applicability.—Incorrect or inapplicable instructions should be refused, p. 570.</p>

From Montgomery Circuit Court; A. F. White, Special Judge. Suit by tbe Board of Commissioners of the County of Putnam against James P. Karr and others. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

<p>Prom G-reene Circuit Court, Charles E. Henderson, Judge.</p> <p>Action by the Town of Jasonville against John Humphreys. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Torts. — Wrongful Operation of Lawful Business. — Damages.— The operation of a lawful business at an improper place, or in an inrproper manner, may give rise to an action for damages, p. 589.</p> <p>2. Same. — Operation of Factory Near Highway. — Nuisance.—The operation of a factory having a waste pipe six feet from the ground and eight feet from the highway, from which pipe steam escapes and at times floats over and across the highway, does not, of itself, constitute negligence, and is not, of itself, a nuisance. p. 590.</p> <p>3. Pleading. — Complaint.—Negligence.—Operating Factory Near Higlmay.- — A complaint alleging that defendant company operated a stave factory near a highway; that such factory was provided with an escape pipe standing six feet from the ground and eight feet from such highway; that defendant knowingly dis- . charged steam therefrom with a loud, puffing noise,"which steam floated over such highway in front of plaintiff’s horse, causing the horse to injure plaintiff, states a cause of action, p. 591.</p> <p>4. Trial. — Negligence.—Ordinary Care. — Question for Jury.— Whether a company operating a staye factory near a public highway used ordinary care in preventing the escape of steam upon such highway is a question for the jury. p. 592.</p> <p>5. Pleading. — Complaint.—Facts.—Conclusions.—Where the facts, showing that defendant violated a duty owing to the plaintiff, to plaintiff’s injury, are set forth in a complaint, characterizing defendant’s factory as a public nuisance adds nothing thereto, p. 592.</p> <p>C. Same. — Complaint.—Negligence.—Public Highways. — Hoto Alleged. — Allegations that an escape pipe was maintained by defendant “within eight feet of the public highway”; that the steam from such pipe would “float in clouds across the highway”; that plaintiff was driving upon “said highway”; that because of such steam plaintiff’s horse “broke away to the side of the road,” causing injuries to xilaintiff, sufficiently shows that the way was a public highway, p. 592. .</p> <p>7. Trial. — Interrogatories to Jury. — General Verdict. — Negligence. —Answers to interrogatories to the jury showing that defendant operated a factory having an escape pipe within- eight feet of a public highway; that x>laintiff knew thereof, and that while driving along near such pipe the steam therefrom escaped and floated across such road, scaring plaintiff’s horse and causing injuries to plaintiff, are not irreconcilable with a general verdict for plaintiff, p. 592.</p> <p>8. Trial. — Interrogatories to Jury. — General Verdict. — In order to overcome a general verdict for plaintiff in a negligence case, the answers to the interrogatories to the jury must disclose a fact or facts wholly inconsistent with defendant’s negligence, or conclusive of plaintiff’s contributory negligence, p. 593.</p> <p>9. Same. — Interrogatories to Jury. — Facts to be Elicited. — Only such facts as are material to the issues may be elicited in the interrogatories to the jury. p. 593.</p> <p>10. Same. — Interrogatories to Jury. — Contributory Negligence. — In an action for damages alleged to be caused by defendant’s operation of an escape pipe which frightened plaintiff’s horse, an interrogatory, in substance, did the plaintiff’s companion in the buggy say to the plaintiff “You had better let me help you hold him” was immaterial, whatever the answer might have been, p. 593.</p> <p>11. Same. — Interrogatories to Jury. — Uncertainty.—Contributory Negligence. — In an action for damages caused by defendant’s discharge of steam from an escape pipe near the public highway, to an interrogatory asking if such steam was escaping onto and across the highway when plaintiff arrived at a certain point near by, the answer “At the side of the highway. At times it blew across,” is not indefinite, where the evidence showed such answer to be true. p. 594.</p> <p>12. Same. — Interrogatories to Jury. — Evidence.—In an action for damages caused by the fright of plaintiff’s horse because of the escape of steam from defendant’s factory, an interrogatory asking whether it was reasonably probable that a colt of ordinary gentleness would become frightened when first brought into proximity with a steam engine in operation, is not material, since any answer thereto would not be controlling, p. 594.</p>

From Superior Court of Marion county (70,567); Vinson Carter, Judge. Action by the State of Indiana, on relation of the Board of Commissioners of the County of Hendricks, against the Board of. Commissioners of the County of Marion. From a judgment for defendant, plaintiff appeals.

<p>1. Constitutional Law. — Glass Privileges. — Goal Mines. — Lighting. — Section 7 of the act of 1905 (Acts 1905, p. 65, §8575 Burns 1908), requiring coal mining companies to maintain lamps at the places where the miners get on and off of the cages, “except when electric lights are used,” does not violate the 14th amendment of the federal Constitution, §23, Art. 1, or §23, Art. 4, of the state Constitution, inhibiting the granting of unequal privileges, since the statute assumes that mines provided with electric lights will have such places illuminated, that being the sole purpose of the provision, p. 625.</p> <p>2. Same. — Glass Privileges.— Goal Mines. — Eumber of Miners Engaged. — Section 20 of the act of 1905 (Acts 1905, p. 65, §8590 Burns 1908), providing that such act shall apply to all mines ■“except to mines employing less than ten men,” does not violate the 14th amendment of the federal Constitution, §23, Art. 1, or §23, Art. 4, of the .state Constitution, inhibiting class legislation. ;pp. 627, 628,</p> <p>3. Constitutional Law. — Classification.—Legislative Discretion.— Where the legislature is invested with the power of making classifications, its exercise of such discretion cannot be controlled by the courts, p. 628.</p> <p>4. Trial. — Theory of Complaint. — Instructions.—Appeal.—Where the theory of a complaint is attacked upon the ground that the statute upon which it is based is unconstitutional, and the instructions are attacked upon the same ground, a decision that such act is valid suffices as a decision upon the complaint and instructions, p. 629.</p> <p>5. . Same. — Instructions.-—Assumption of Bislc. — Mines.—Violation of Statute. — An instruction that a coal miner does not assume the risk of his master’s violation of the mining law, is correct, p. 629.</p> <p>6. Appeal. — Failure to Set Out Evidence in Brief. — Appellant’s failure to set out, in words or substance, the evidence in the case constitutes a waiver of any question depending thereon, p. 630.</p>

<p>1. New Trial. — Newly-Discovered Evidence. — Cumulative.—Result. —Where newly-discovered evidence is merely cumulative, and, if admitted, would probably not affect the result, a new trial should not be granted, p. 631.</p> <p>2. Appeal. — Weighing Evidence.■ — The Supreme Court will not disturb a judgment founded upon conflicting evidence, p. 632.</p> <p>3. Appeal. — Insufficient Evidence. — Review.—The Supreme Court will reverse a case for insufficient evidence only where there is an entire failure to support some material issue; and to that end only so much of the evidence as tends to sustain the finding of the court will be considered, p. 632.</p> <p>4. New Trial.- — Evidence.—Homicide.—Conspiracy.—Accessories.-— Evidence showing that a mother had a violent quarrel with a neighbor; that when her son came home she told him thereof; .that the son, in the father’s presence, loaded a gun, remarking that it would be a good thing with which to “get” such Aeighbor; that upon such neighbor’s approach the son asked the father to do the shooting, but the father answered for the son to do it, whereupon the son killed such neighbor, -sustains a finding that the father was guilty of murder in the first degree, p. 632.</p>

<p>1. Judgment. — Information for Contempt — Defects.—A judgment convicting defendant of contempt cannot be upheld, where the information fails to charge sufficient facts to constitute a contempt. p. 638.</p> <p>2. Contempt. — Poioer of Courts. — Statute.—With or without a permissive statute, courts of superior jurisdiction have the power to punish persons for a contempt, but the legislature may regulate the procedure therein, p. 63S.</p> <p>3. Same.' — Indirect.—Information.—Procedure.—To prosecute one for an indirect contempt of court it is necessary for some responsible person to file an information charging distinctly the acts showing that the authority of the court has been prejudiced, or that the administration of justice has been wrongfully interfered with; and the cause is usually tried on verified pleadings alone, p. 639.</p> <p>4. Same. — Indirect.—Information.—Netospaper Publications. — An information for an indirect contempt charging that because of the prosecuting attorney’s sickness another person was appointed to take charge of the grand jury; that the grand jury was sworn and that it entered upon the discharge of its duties; that defendant published an article in his newspaper which might have meaning to persons residing in the locality, but which was not explained in the information, the information characterizing such article as in contempt of the court, is insufficient, p. 640.</p>

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

<p>From Vanderburgh Circuit Court; Louis O. Basch, Judge.</p> <p>Prosecution by the State of Indiana against Minerva Williams. From a judgment of conviction, she appeals.</p>

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Prosecution by the State of Indiana against Albín R. Ludwig. Prom a judgment of conviction, defendant appeals.</p>

From Marion Circuit Court (14,327) Henry Clay Allen, Judge. Action by Mary E. Miznerr, by her next friend, against George W. Pein and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court (41 Ind. App. 255) under clause 1, §1394 Burns 1908, Acts 1901, p. 565, §10.

<p>From Clark Circuit Court; Harry G. Montgomery, Judge.</p> <p>Suit by the Union Trust Company, as receiver of the Mutual Life Insurance Company of Indiana, against Benjamin S. Scott and others. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.</p>

<p>Prom Grant Circuit Court; R. J. Paulus, Judge.</p> <p>Prosecution by tbe City of Hartford City against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Jackson Circuit Court; Thomas B. Busltirh, Judge.</p> <p>Action by the Marion Trust .Company, as receiver of the Vernon Insurance & Trust Company, against Tipton S. Blish. .From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under cl. 2, §1394 Burns 1908, Acts 1901, p. 565, §10.</p>

<p>From Wabash Circuit Court; A. E. Plummer, Judge.</p> <p>Prosecution by the State against Dayton C. Harter. From an order quashing the indictment, the State appeals.</p>

<p>From Randolph Circuit Court; Jolvn W. Macy, Judge.</p> <p>Quo warranto by the State, on the relation of Amos Heston, against Elmer Ross. From a judgment for defendant, plaintiff appeals.'</p>

From Boone Circuit Court; FraAik B. Hutchinson, Special Judge. ( Application for liquor license by George B. Lanham, against which William J. Woods and others remonstrate. From a judgment for remonstrants, the applicant appeals.

From Oass Oireuit Court; John S. Lairy, Judge. Action by Clarkson W. Macy against the Board of Commissioners of the County of Miami and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.