Volume 171 — Indiana Reports

<p>From'Orange Circuit Court; Thomas B. Buskirlc, Judge.</p> <p>Prosecution by the State of Indiana against Edward Bridgewater. From a judgment quashing the- affidavit and discharging defendant, the State appeals.</p>

Prom Porter Circuit Court; W. C. McMahan, Judge. ■ Highway petition by Henry R. McDonald and others, against which Billings Hall and another remonstrate. Prom a judgment for petitioners, remonstrants appeal.

Prom Orange Circuit Court; Thomas B. Bushirh, Judge. Prosecution by The State of Indiana against Thomas G. Derry. Prom .an order relegating certain seized articles to the custody of the sheriff, the State appeals.

<p>1. Army and Nats:. — Soldiers’ Homes. — Government of. — Tbe governor of a national soldiers’ borne bas charge of tbe occupants thereof in like manner as an officer of tbe army bas charge of bis soldiers, and, in the preservation of discipline, may make and enforce any proper order designed to secure such end. p. 31.</p> <p>2. Intoxicating Liquors. — Sales of, in Restaurant.- — Under §2498 Burns 1908, Acts 1905, pp. 584, 723, §583, prohibiting tbe sale or gift of liquor within one mile of any national or state military home, it is unlawful to sell or give away such liquor at a restaurant located within such distance, p. 31.</p> <p>3. Army and Navy. — Rational Soldiers’ Homes. — Governor’s Orders. — Conspiracy.—Where the governor of a soldiers’ home issues a lawful order, in good faith and without malice, forbidding the occupants of such home from entering a certain place, the enforcement of such order by the police does not render such parties liable to an action in conspiracy, p. 31.</p> <p>4. Pleading. — Complaint.—Conspiracy.—Malicious Interference.— • A complaint alleging that the defendant governor of a national soldiers’ home issued an order forbidding the occupants of such home from entering plaintiff’s restaurant, called by such governor a saloon, and that the defendant' policemen conspired with such governor to enforce such order, to plaintiff’s damage, but failing to allege that plaintiff did not sell liquors in such restaurant, does not state a cause of action.. p. 32.</p> <p>5. Pleading. — Complaint.—Facts.—Inferences.—Evidence.—In considering facts in evidence, violations of law will not he presumed; but in pleading, only the necessary inferences from the facts alleged will be indulged, p. 32.</p>

Prom Superior Court of Marion County (68,040); Yin-son Carter, Judge. Action by Burt New, as administrator de bonis non of tbe estate of Henry Geisel, deceased, against tbe Germania Pire Insurance Company and another. Prom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

Prom Newton Circuit Court; Charles W. Hanley, Judge. . Highway improvement petition by Charles Hansen and others, against which Platt M. Conrad and others remonstrate. Prom a judgment for petitioners, remonstrants appeal.

<p>1. Statutes. — Interpretation.—The purpose of the interpretation of a statute should be to ascertain the general intent thereof, effect being given to every word, if possible; and such a construction should be avoided as will make a proviso plainly repugnant to the body of the act. p. 56.</p> <p>2. Words and Phrases. — “Middlings.”—Statutes.—The word “middlings,” as used in §7949 Burns 1908, Acts 1907, p. 354, §11, providing that the term “concentrated commercial feeding stuff” shall include “wheat middlings,” imports that part of the wheat grain left after separating the coarser bran and the finer flour therefrom, p. 56.</p> <p>3. Statutes. — Pure Food. — Labels.—Whole Wheat Products.— “Middlings.” — The requirement in §7949 Burns 1908, Acts 1907, p. 354, §11, that “concentrated commercial feeding stuff,” the retailers of which are required properly to label the same, shall include “wheat middlings” does not conflict with a later clause therein that it shall not include “unmixed meals made directly from the entire grains of wheat.” p. 57.</p> <p>4. Indictment and Information. — Exceptions. — negativing.— When Required. — Where an exception in a statute is closely connected with the enacting clause, or is in the same section defining the offense, it must be negatived in the indictment; but if it occur in a subsequent clause or statute, it constitutes a defense and need not be negatived, p. 57.</p> <p>5. Same. — Sale of “Concentrated Commercial Feeding Stuff” Without Label. — Statutes.—An indictment, under. §7944 Burns 1908, Acts 1907, p. 354, §6, charging that defendant unlawfully sold “wheat middlings” without a label, and negativing the exceptions therein contained, sufficiently charges the offense therein described of retailing “concentrated commercial feeding stuff” without a label, p. 58.</p>

Prom Howard Superior Court; P. H. Elliott, Judge. Application by Thomas B. .Gorman for liquor license, The State of Indiana petitioning to be made a party. Prom an order granting the license and denying the petition, the State appeals.

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Prosecution by The State of Indiana against Charles Laughlin. Prom a judgment for defendant, the State appeals.</p>

<p>1. Pleading. — Oomplaint. — Negligence. — Facts. —Inferences.—In common-law actions for negligence the complaint must allege the facts directly and positively, or state facts from which there must arise a necessary inference of defendant’s negligence, p. 74.</p> <p>2. Railroads. — Negligence. — Vestibuled Cars. — Passengers.—Railroad companies are not required to use vestibuled cars; and their failure to do so does not of itself constitute negligence, even though such cars are less hazardous, p. 75.</p> <p>3. Same. — Negligence.—Advertising Vestibuled Oars. — Failure to Furnish. — Resulting Injuries. — A railroad company advertising to run a vestibuled train, and which does not, is liable to a passenger relying thereon and injured because of the failure of the company to run such train, p. 75.</p> <p>4. Pleading. — Oomplaint. — Railroads. — Vestibuled Trains. — Failure to Provide. — Passengers.-—A complaint alleging that plaintiff became a passenger on defendant’s train, that defendant held out to the public that said train was completely vestibuled, that the car immediately in the rear of plaintiff’s car was not vestibuled, that plaintiff without any knowledge that such car was not vestibuled and believing it was vestibuled, undertook to pass into such car and by reason of its not being .vestibuled was thrown therefrom, suffering great injuries, fails to state a cause of action, p. 75.</p> <p>5. Pleading. — Comp laint. — Conclusions.—Railroads.—A complaint alleging that defendant railroad company “held out to the public” that its train was vestibuled is a conclusion and insufficient, p. 76.</p> <p>6. Same. — Complaint.—Railroads.—Making up Passenger-Trains.— Arrangement of Coaches. — A complaint alleging that defendant railroad company negligently placed its passenger-coach in front of the baggage-coach, in violation of §5315 Burns 1908, §3927 E. S. 1881, and that plaintiff who was a passenger in the passenger-coach in attempting to pass into such baggage^coach, received injuries in so doing, must state facts, in an action based upon the violation of such statute, showing that the placing of such coaches was the proximate cause of his injuries, p. 77.</p>

<p>1, Daeceny. — Corpus Delicti. — Evidence.—Possession of Stolen Property. — The corpus delicti in larceny may be proved by circumstantial evidence; and while the unexplained possession of another’s property is not sufficient to establish larceny, such fact together with the circumstances may be sufficient, p. 80.</p> <p>2. Same. — Evidence.—Talcing Without Consent. — Intent.—The disappearance of a ring from a locked trunk, without the owner’s knowledge or consent, shows a taking with felonious intent, p. 81.</p> <p>•3. Evidence. — Unexplained Possession of Stolen Property. — Larceny. — The unexplained exclusive possession of stolen property soon after the larceny is sufficient to sustain a conviction, p. 81.</p> <p>4. LaeCeny. — Possession. — Evidence. — Explanations.—Reasonable Doubt. — Evidence in explanation of defendant’s possession of stolen property is admissible, and if upon the whole evidence there is a reasonable doubt of defendant’s guilt, he is entitled to an acquittal, the jury being the sole judge of the weight of the evidence, p. 82.</p> <p>5. Evidence. — Possession of Stolen Property. — Place.—Twne.— Evidence that defendant denied any knowledge of the stolen ring which he had in his possession, that he was near the place where the ring was stolen, and when it was stolen, is admissible in determining whether his possession was referable to a criminal origin, p. 82.</p> <p>6. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 83.</p> <p>7. Evidence. — Declarations.—Self-Serving.—Res Gestae. — Larceny. —Acts, statements and conduct of a defendant at the time certain stolen goods were found in his possession, or when his right was first questioned, are admissible in evidence, as a part of the res gestae, on a charge against him for the larceny thereof, p. 84.</p> <p>8. Same. — Declarations. — Self-Serving. — Res Gestae. — Design.— Larceny. — Where defendant on being askéd about a stolen ring in his possession denied any knowledge thereof, his subsequent declarations and conduct in explanation thereof are not admissible in evidence in his behalf, since they are open to the charge of being designedly made. p. 84.</p>

<p>Prom Marion Circuit Court (14,445); Henry Clay Allen, Judge.</p> <p>Action by Margaret Bruce against William Y. Rooker. Prom a judgment for plaintiff, defendant appeals.</p>

<p>From Marion Cirenit Court (12,083); Henry Clay Allen, Judge.</p> <p>Action by Sarah I. MeColley and others against James E. Hiatt and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Prom Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Prosecution by The State of Indiana against Thomas Cheek. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Statutes. — Repeal.—Fraudulently Obtaining Board. — Innkeepers. — Criminal Law. — The act of 1905 (Acts 1905, p. 5S4), codifying the criminal law, did not repeal the act of 1897 (Acts 1897, p. 123, §784S Burns 1908), making it a misdemeanor fraudulently to obtain board or lodging, p. 106.</p> <p>2. Statutes. — Repeal.—Codification Commission. — Duties.—The-act of 1903 (Acts 1903, p. 391) creating a codification commission and directing it to codify the criminal laws and to “omit all parts repealed or obsolete,” had reference only to laws theretofore repealed or obsolete, p. 107.</p> <p>3. Words and Phrases. — “Purview.”—Statutes.—The word “purview,” as used in the repealing clause of the public offenses act of 1905 (Acts 1905, p. 584) providing that all “laws within the purview” of such act were thereby repealed, imports the body of such act — that part between the enacting and repealing clauses, p. 107.</p> <p>4. Constitutional Law. — Debt. — Imprisonment. — Fraudulently Obtaining Board. — The act of 1897 (Acts 1897, p. 123, §7848 Burns 1908), making it a misdemeanor fraudulently to obtain board or lodging, does not conflict with Art. 1, §22, of the Constitution, prohibiting imprisonment for debt except in case of fraud, such provision applying to civil cases where creditors attempt to collect debts by coercing payment by means of imprisonment. p. 107.</p> <p>5. Statutes. — Definiteness.—Fraudulently Obtaining Board. — The act of 1897 ( Acts 1897, p. 123, §78.48 Burns 1908), making it a misdemeanor fraudulently to obtain board or lodging, is not void for indefiniteness. p. 108.</p> <p>6. Indictment and Information. — Fraudulently Obtaining Board. —An affidavit charging that defendant “did then and there unlawfully obtain food and lodging * * * with intent then and there to defraud” a certain hotel keeper, sufficiently charges the crime of unlawfully obtaining board and lodging under §7848 Burns 1908, Acts 1897, p. 123. p. 108.</p>

<p>Prom Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Drainage proceeding by Sebastian Miller, against which the Wabash Eailroad Company remonstrates. Prom a judgment for the remonstrant, petitioner appeals.</p>

<p>1. Appeal. — Right Result. — Where the trial court reached a right result its judgment will not be disturbed, p. 114.</p> <p>2. Mandamus. — Grounds for. — Mandamus lies to compel an inferior tribunal, corporation, board, or person to perform an act enjoined by law, or which results from an office, trust, or station; but the relator’s right must be clear, and the respondent’s duty imperative, p. 114.</p> <p>3. Same. — Membership.—Unincorporated Associations. — Mandamus does not lie to compel the restoring of relator to membership in a voluntary unincorporated association which does not hold or exercise any right, privilege or franchise granted by the State, p. 114.</p> <p>4. Same. — Ohurch Membership. — Restoration.—Mandamus does not lie to compel the proper church authorities to restore relator to membership, nor to perform acts in aid thereof required by the law of such church, where no civil nor property right is involved; and the privilege of membership alone does not constitute such a right, p. 115.</p> <p>5. Same. — Ministers.—Restoration to Clerical Rights. — Mandamus does not lie to restore a minister to his clerical rights or functions, although he was wrongfully excluded therefrom, p. 120.</p>

<p>From Cass Circuit Court; Jere West, Special Judge.</p> <p>Suit by Michael A. Jordan against the City of Logansport and others. From a decree for plaintiff, defendants appeal.</p>

From Jasper Circuit Court; Charles W. Manley, Judge. Drainage proceeding by Thomas Davis and others, against. which John Renicker and others remonstrate, From a judgment for petitioners, remonstrators appeal.

<p>1. Pleading. — Complaint. — Sufficiency. — Mandamus.—Alternative Writ. — A demurrer to the petition and alternative writ in a mandamus ease should be sustained, where the command of the alternative writ exceeds the duty of defendant as disclosed by the allegations of such petition and writ. p. 140.</p> <p>2. Carriers. — Express.—Delivery.—State Legislation. — In the absence of any federal legislation the states may require express companies, under a penalty, to perform the common-law duty of making personal delivery of express matter, p. 141.</p> <p>3. Statutes. — Amendments.—Effect.—As to subsequent events, an amendment to a statute is considered as a part of the original act. p. 141.</p> <p>4. Carriers. — Express Companies. — Statutes.—Under the railroad rate act (34 Stat. 584, U. S. Comp. Stat. Supp. 1907, p. 892 etseq.) express companies are common carriers, p. 141.</p> <p>5. Commerce. — Interstate.—Express Companies. — Reasonable Preferences. — What constitutes an unreasonable preference under the railroad rate act (34 Stat. 584, U. S. Comp. Stat. Supp. 1907, p. 892 et seq.) is a question of fact, but rates should be relatively equal so as not tó give places of like character unequal advantages, or build up one section at the expense of another, p. 143.</p> <p>6. Commerce. — Interstate.—Termination of. — Delivery.—An interstate shipment ends upon the actual delivery thereof to the consignee. p. 144.</p> <p>7. Same. — Interstate. — Statutes. — State Laws. — Suspension.—Express Companies. — The passage of the railroad rate law (34 Stat. 584, ü. S. Comp. Stat. Supp. 1907, p. 892 et seq.) had the effect of suspending all state legislation affecting interstate commerce carried on by express companies, including the free delivery act of 1901 (Acts 1901, p. 97, §3912 Burns 1908). p. 144.</p> <p>8. Same. — Regulation .of. — Express Companies. — Eree Delivery.— The statute of 1901 (Acts 1901, p. 97, §3912 Burns 1908), compelling express companies to make free delivery in certain territory, constitutes a regulation of interstate commerce within the meaning of the federal Constitution, pp. 148,153.</p> <p>9. Same. — Express Companies. — Free Delivery. — Interstate Com- •• merce Commission. — Complaints against express companies which refuse to furnish free delivery of interstate shipments must be made to the interstate commerce commission, p. 151.</p> <p>10. Carriers. — Express Companies. — Delivery.—Common-Law Duty. —It is the common-law duty of express companies to make personal delivery of shipments, except at small stations, but they have the right to modify such duty by contract or custom, and to fix reasonable delivery limits, p. 151.</p> <p>11. Statutes. — Federal.—Whether Foreign to States. — Federal statutes are not foreign to the several states, but must be enforced as of superior dignity to state statutes, p. 154.</p>

Prom White Circuit Court; James P. Wason, Judge. Highway petition by Benton Kelley and others, against which William Augsperger and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

<p>From Orange Circuit Court; Thomas B. Buskirlc, Judge.</p> <p>Prosecution by The State of Indiana against Albert H. Brown. From a judgment of conviction, defendant appeals.</p>

<p>Prom Laporte Circuit Court; John G. Richter, Judge.</p> <p>Action by Jeter G. Strange against the Pere Marquette Railroad Company. Prom a judgment for plaintiff, defendant appeals. Appealed from Appellate Court under clause 3, §1394 Burns 1908, Acts 1901, p. 565, §10.</p>

<p>1. Intoxicating Liquobs. — Oity Licenses. — Necessity for. — An applicant for a city license to retail intoxicating liquors, who submits his county license to the city council, offers to prove his fitness, tenders the required fee, and who is arbitrarily refused a license by such council, cannot lawfully retail such liquors in such city, a license being essential. Padgett v. State (1884), 93 Ind. 396, overruled. Jordan and Gillett, JJ., dissenting, p. 180.</p> <p>2. Cbiminal Law. — Intoxicating Liquors. — Setting Without Oity License. — Wrongful Refusal to Grant License. — In a prosecution for the unlawful sale of liquors without a city license the defendant cannot show that his application for a city license was wrongfully refused, p. 181.</p> <p>3. Mandamus. — Damages.—Wrongful Refusal to Grant Oity License. — Intoxicating Liquors. — An action in mandamus and for damages lies against a-city council for wrongful refusal to grant to an applicant a license to retail intoxicating liquors, p. 182.</p> <p>4. Appeal. — Deciding Unnecessary Points. — Oity Ordinances. — The Supreme Court will not determine the validity of a section of a city ordinance, where the case does not require a determination thereof, p. 182.</p>

Prom Noble Circuit Court; Josepli W. Adair, Judge. Condemnation proceeding by the Toledo & Chicago Interurban Railway Company against Walter C. Wagner and another, as executors of the will of J. William Wagner, deceased. Prom a judgment for defendants, plaintiff appeals.

<p>1. Statutes. — Construction.—Constitutional Law. — Railroad Commission. — Powers.—Subdivision (1), §5533 Burns 1908, Acts 1907, p.' 454, §3, requiring all intrastate carriers to construct necessary interchange tracks will be- construed so as not to conflict with constitutional inhibitions, p. 200.</p> <p>2. Railroads. — Public Regulation. — Constitutional Law. — Property invested in railroads, though protected by the federal and state Constitutions, is devoted to a public use, and is subject to reasonable public regulation, p. 201.</p> <p>3. Same. — Construction of Interchange Trades. — Loss of Business. —A railroad company may be compelled to construct an interchange track, though such construction will divert some of its business to competing roads, p. 202,</p> <p>4. Railroads.- — Nature of — Highways.—Railroads are xiublic highways. p. 203.</p> <p>5. Same. — Regulation by Railroad Commission.- — The railroad commission is the chosen agent of the legislature, and orders made by it will be interfered with by the courts only where a clear case of invalidity is shown, the presumption in favor of'the commission’s acts being strong, p. 205.</p> <p>6. Pleading. — Complaint. — Uncertainties.—Presumptions.—Where a complaint is uncertain, the presumptions are against the plaintiff. p. 205.</p> <p>7. Same. — Complaint. — Allegations.—“Necessary.”—An allegation in a complaint, that the land described was “necessary” to enable the plaintiff railroad company to handle its traffic, means that such land would be reasonably convenient, p. 205.</p> <p>8. Same.- — Complaint.-—Allegations.—“Needs.”—An allegation that plaintiff railroad company “needs” certain land for its terminal facilities, if not a mere recital, is indefinite in degree, p. 206.</p> <p>9. Railroads. — Interchange Tracks. — Railroad Convnvission. — A railroad commission’s order for certain railroads to build an interchange track at a certain place is not unreasonable because it will interfere, or increase the danger, to some extent in placing additional cars in the yard, or deprive one of such companies from storing a few more cars on its tracks, p. 206.</p> <p>10. Pleading. — Complaint. — Allegations. — “Practicable.” — Railroads. — Interchange’Tracks.—A complaint alleging that it would be “practicable” to build an interchange track at a designated place, does not disclose facts sufficient to overcome an order of the railroad commission ordering such track to be constructed ‘ at another point, p. 207.</p> <p>11. Railroad Commission. — Dangerous Intersections. — The railroad commission, under §5533 Burns 1908, Acts 1907, p. 454, §19, has jurisdiction over dangerous railroad and street intersections, p. 207.</p> <p>12. Same. — Orders.—Court Review. — The courts will set aside orders of the railroad commission only upon a plain case of mistake or abuse of power, p. 207.</p> <p>13. Same. — Orders.—Cost and Benefits. — Court Review. — Mere cost of the property used and want of benefit to the railroad company objecting to the railroad commission’s order are not sufficient for an overthrow of such order by the courts, p. 207.</p> <p>14. Constitutional Law. — Police Power. — Compensation.—Railroad. — Interchange Tracks. — An order of the railroad commission compelling the -plaintiff railroad company to construct an interchange track, using part of its land therefor, does not comprehend the appropriation of property without compensation, but is a valid exercise of the police power which requires no compensation. p. 208.</p> <p>15. Railroads. — Interchange Trades. — Using Property Devoted to Public Use. — Railroad companies may be ordered by the railroad commission to use parts of their rights of way upon which to construct interchange tracks, where such orders are reasonable under the circumstances, p. 208.</p> <p>16. Railroad Commission. — Orders.—Retention of Jurisdiction.— Cost of Constructing Interchange Trade. — Where the railroad commission orders the construction of an interchange track, retaining jurisdiction of the parties to settle any disagreements as to “questions of expense, trackage, interchange or other matters,” the complaining company, as to costs, should apply to such commission to determine its proper share thereof, and not to the courts to restrain the execution of the order, p. 209.</p> <p>17. Railroads. — Use of Right of Way for Interchange Trade.— Compensation.-^-Wheve one company has been compelled by the railroad commission to furnish the greater part of the track and right of way for an interchange track, the presumption is that it will be compensated therefor in the switching or transfer charges, such commission having the right to adjust the costs of construction equitably, p. 209.</p> <p>18. Same. — Interchange Trades. — Title.—Use.—Where an interchange track is built upon the right of way of one company, the title thereto remains in such company, and it is entitled to the use of such track where - it is not needed for the interchange business, p. 209.</p> <p>19. Same.— Interchange Trades. —Interstate Commerce Act.— An order of the railroad commission requiring the plaintiff: railroad company to use a part of its yard for the construction of an interchange track does not violate the interstate commerce act (24 Stat. p. 380, §3, 3 U. S. Comp. Stat. 1901, p. 3155), providing, among other things, that such act “shall not be construed as requiring any such common carrier to give the use of its track or terminal facilities to another carrier engaged in like business,” such clause being designed to restrain the generality of the preceding language, p. 210.</p> <p>20. Railroad Commission. — Orders.—Interstate Commerce. — Regulation. — Orders of the railroad commission requiring railroads doing an interstate as well as intrastate business to construct interchange tracks does not constitute a regulation of interstate commerce in such sense as necessarily to invalidate its orders. p. 211.</p> <p>21. Same. — Orders.—State Question. — The proper construction of an order of the railroad commission is a question for the state courts, and such construction must be consistent with the acl: creating such commission, thus applying to intrastate commerce alone, p. 212.</p> <p>22. Railboad Commission. — Statutes.—Interstate Commerce. — The railroad commission act giving power to such commission to compel the construction of interchange tracks, facilitates rather than hinders interstate commerce, p. 212.</p>

<p>1. Eminent Domain. — Petition.—Answer.—Exceptions.—In an em-. inent domain proceeding where the objections filed to the petition serve the purpose of a demurrer, or present an issue of fact, and such objections are overruled, the defendant to present any question on appeal, must except to such rulings, p. 221.</p> <p>2. Same. — Objections to Petition. — Demurrer.—Plaintiff in an eminent domain proceeding may demur to defendant’s objections to the petition and thus question their sufficiency. Montgomery, J., dissents, p. 223.</p> <p>3. Same. — Procedure.—Civil Code. — The civil code of procedure applies to proceedings in eminent domain, where no other procedure is prescribed, p. 223.</p> <p>4. Pleading. — Motions to Strilce Out. — Demurrer.—Appeal.—A motion to strike out is not designed to perform the office of a demurrer; but where such motion in an eminent domain case was considered by the trial court as a demurrer, the Supreme Court may so consider it on appeal, p. 223.</p> <p>5. Street Railroads. — Location. — When Perfected. — Condemning Lands Already Appropriated. — Where promoters purchased lands taking the title to themselves, as trustees, but naming no cestui que trust, such title being conditioned upon the construction of a street railroad upon such land within eighteen months, and a Street railroad company subsequently filed its action to appropriate the same lands for its right of way, the fact that such promoters subsequently to the filing of such action organized a street railroad company and conveyed such lands to it does not defeat the right of the prior company to the lands in question, p. 224.</p> <p>6. Contracts. — Conveyances.—Parties.—Promoters.—Corporations. —Corporations subsequently organized are not obligated to a contract entered into between their promoters and the landowners conveying lands to such promoters for the purpose of the location and construction of a street railroad, p. 233.</p> <p>7. Same. — Ratification by Subsequently Organised Corporation. — ■ Time to Which Ratification Relates. — A corporation’s ratification of a contract entered into, for its benefit, by its promoters, cannot relate to a time prior to its corporate existence, p. 234.</p>

<p>1. Appeal. — Transcript.—How Made. — The transcript, on appeal, should contain copies only of the record and papers below, but by statute (§657 Burns 1908, Acts 1897, p. 244 and §667 Burns . 1908, Acts 1903, p. 338, §7) an original bill of exceptions may be included therein, p. 241.</p> <p>2. Same. — Transcript.-—Cleric’s Certificate.- — Where the transcript contains no bill of exceptions the clerk’s certificate should state merely that it contains copies of the originals; but if it contains the original bill of exceptions the certificate should show that fact. p. 242.</p> <p>3. Same. — Transcript.- — Precipe. — Cleric’s Certificate. — Where a precipe called for copies of “the complaint, summons and the return of the sheriff thereon, all affidavits and papers filed, and the orders made by the judge, and all proceedings thereon,” and the clerk certified that the transcript contained “full, true and correct copies, or the originals, of all papers and entries in said cause required by the foregoing precipe,” it is shown that all papers and entries therein are copies, since that is what the precipe required. p. 242.</p> <p>4. Appeal. — Parties. — Partnership. — Dissolution. — Receivers.— Complaint. — Exhibits.—Conflict.—On an appeal from an interlocutory order appointing a receiver for a partnership, where the complaint for a dissolution and for a receiver alleged that one of the defendants was a partner, and the articles of copartnership, set out as an exhibit, showed that he was not a partner, the allegation controls, since such articles form no part of the complaint, and such party is therefore “aggrieved” and entitled to appeal, p. 242.</p> <p>5. Same. — Term-Time.—Parties.—Receivers.—Appointment.—Interlocutory Orders. — Any “aggrieved” party in a suit wherein an interlocutory order appointing a receiver has been made, may appeal; and an appeal taken by fewer than all of the “aggrieved” parties cannot prejudice one joining in such appeal, p. 243.</p> <p>6. Same. — Default Judgment. — Interlocutory Order. — Appearance. —the taking of an appeal .from an interlocutory order appointing a receiver in a partnership dissolution suit, does not constitute an appearance to the suit at the time of such appointment, p. 243.</p> <p>7. Same. — Transcript. — Summons. — Sheriff’s Return. — D efault Order for Appointment of Receiver. — On an appeal from ¿n interlocutory order appointing a receiver, without notice, the summons and sheriff’s return thereon are a part of the record, p. 244.</p> <p>8. Action. — Commencement.—Issuance and Delivery of Summons to Sheriff. — A civil action is commenced at the time of the delivery of the summons to the officer authorized to serve same, p. 244.</p> <p>9. Statutes. — Judicial Construction. — Reenactment.—The reenactment of a statute which has been judicially construed impresses such construction upon the new. statute, p. 244.</p> <p>10. Receivers. — Jurisdiction to Appoint. — Commencement of ‘Suit. —Appeal.—On an appeal from an interlocutory order appointing a receiver, where the transcript shows such appointment was made on August 15, and the sheriff’s return shows his receipt of the summons on August 16, the appointing court was without jurisdiction, p. 244.</p> <p>11. Judgment. — Direct Attack. — Appeal. — Receivers. — Interlocutory Order Appointing. — An appeal from an interlocutory order appointing a receiver constitutes a direct, and not a collateral, attack upon such order, p. 245.</p> <p>12., Appeal. — Weighing Evidence. — Interlocutory Order Appointing Receiver. — Affidavits only are admissible in evidence in an application, for the appointment of a receiver without notice, p. 245.</p> <p>13. Same. — Records.—Evidence.—Affidavits.—Receivers.—In a suit for the appointment, without notice, of a receiver, the affidavits filed in support thereof become a part of the record without a bill of exceptions (§6G3 Burns 1908, Acts 1903, p. 338, §3). p.246.</p> <p>14. Same. — Precipe. — Cleric’s. Certificate. — Evidence.—Receivers.— Where the precipe, in an appeal from' an interlocutory order appointing a receiver calls for a transcript of the “complaint” and “all affidavits and papers filed,” and the clerk certifies that the transcript contains copies of all papers and entries required by</p> <p>. the precipe, but it contains no affidavits, the presumption is that the verified complaint therein contained constituted the only evidence in .the case. p. 246.</p> <p>15. Receivers. — Appointment Without Notice. — Statutes.—Under §1288 Burns 1908, §1230 R. S. 1881, providing for the appointment of receivers, a receiver cannot be appointed, without notice, unless-the complaint or an affidavit filed therewith shows the necessity not only of such appointment, but for such appointment without notice, p. 249.</p> <p>16. Same. — Appointment of. — Causes for. — Notice.—The statute (§1288 Burns 1908, §1230 R. S. 1881) being silent as to the causes for the appointment of receivers, the courts will look to the adjudged cases therefor, and will not ordinarily appoint without notice to the opposing parties, p. 249.</p> <p>17. Pleading. — Complaint.—Receivers.—Appointment Without Notice. — A verified complaint for the appointment, without notice, of a receiver, which fails to show that defendants were beyond the court’s jurisdiction, or that an emergency existed to prevent waste, destruction, or loss, or that notice itself would jeopardize the property, or that protection could not be had by a réstraining order, is insufficient, p. 249.</p> <p>18. Same. — Complaint. — Verification. — Receivers. —Appointment Without Notice.- — Evidence.-r-A complaint for the- appointment, without notice, of a receiver, verified on the “belief” of the complaining party, constitutes no evidence of the facts recited therein, p. 256. ,</p>

<p>1. Pleading. — Complaint.—Injunction.—Collateral Attack. — Notice. —Failure to Negative. — Presumptions.—Street Assessments. — A complaint to enjoin the collection of a street assessment on the grounds that no notice was given of the declaratory resolution for the making of the improvement, or of the time and place for the hearing of objections, is bad, where it fails to negatiVe such notice, the presumption being that proper notice was given, p. 253.</p> <p>2. Municipal Coepobations. — Street Improvements. — Public Searing. — Notice.—Under §8959 Burns 1908, Acts 1905, p. 219, §265, notice of the time and place for a public hearing of a resolution for street improvements must be given by two weekly publications in a newspaper published in the city or town, or, if there be no such paper, then by posting, p. 253.</p> <p>3. Pleading. — Complaint.—Injmiction.—Municipal Corporations.— Street Improvements. — Declaratory Resolutions. — A complaint to restrain a town from collecting a street assessment on the ground that the declaratory resolution was never acted upon by the board of trustees, which alleges that such resolution “was never confirmed, changed, modified, altered or rescinded by said board,” but which does allege that on the next day after the objections thereto the board did adopt and enter of record an order directing the improvement to be made and specifying the material to be used, is insufficient, since the presumption is that such latter order was the final resolution for th§ improvement, p. 254.</p> <p>4. Municipal Ooepoeations. — Street Assessments. — Final Order Therefor. — Notice.—No notice need be given of the adoption of the final resolution ordering street improvements, p.255.</p> <p>5. Same. — Towns.—Street Improvements. — Statutes Applicable,— / The improvement of streets in towns is'governed by §8959 Burns 1908, Acts 1905, p. 219, §265, and not by §8710 Burns 1908, Acts 1905, p. 219, §107, such latter section applying only to cities of the first, second, or third class, p. 256.</p> <p>6. Same. — Street Improvements. — Resolution Therefor. — Kinds of Material. — A town resolution declaring a certain street improvement a necessity and ordering that it be done with “vitrified shale or clay paving block, or other paving material,” is not void under §8959 Burns 1908, Acts 1905, p. 219, §265, providing that such resolution shall state the “kind, size, location and terminal points thereof.” p. 257.</p> <p>7. Statutes. — Construction. — Street Improvements. — The provisions of §8959 Burns 1908, Acts 1905, p. 219, §265, that the kind of street improvement shall be determined before the final resolution is adopted, and that the people of a town have the right to petition for the kind of material to be used, and that the board shall have no power to change such petitioned-for material except by a two-thirds vote, and if no petition is filed the final resolution shall set forth the improvement contemplated, and the material to be used, must be construed together, the kind of improvement being determined by the final resolution, p.258.</p> <p>>o> Municipal Ooepoeations. — Street Improvements. — Final Resolution. — Plans and Specifications. — When to be Filed. — Under §8959 Burns 1908, Acts 1905, p. 219, §265, providing that “on the adoption” pf the final resolution for street improvements the town board shall immediately file plans and specifications, a reasonable time is intended, the purpose being that they shall be filed before the notice for bids is published, p. 258.</p> <p>9. Same. — Street Improvements. — Contracts’. — Surplus Ewrth to Contractors. — A street improvement contract providing that the surplus earth shall belong to the contractor is not for that reason rendered void. p. 259.</p> <p>10. Same. — Street Improvement Contracts. — Acceptance of. — Delegation of Duty. — A town board, in a street improvement contract, ' may delegate the performance of a ministerial duty connected therewith, p. 260.</p> <p>11. Same. — Street Improvement Contracts. — Aeeeptmce of Work by Engineer. — A street improvement contract providing that the town engineer shall determine the quantity and quality of material to be used and that his decision shall be conclusive, is valid, in the absence pf fraud, p. 261,</p> <p>12. Municipal Coepobations. — Street Improvement Contracts.— Delegation of Duty. — Validity.—A municipal contract attempting to delegate the board’s • duties which cannot be delegated, is, to ■ that extent, void. pp. 261,262.</p> <p>13. Contracts. — Municipal Corporations. — Powers.—Notice.—Persons dealing with public corporations are conclusively presumed to take notice of their power to contract, and that they can be bound only to the extent of their authority." p. 261.</p> <p>14. Municipal Corporations. — Street Improvement Contracts.— “Extras." — Validity.—A contract to make certain street improvements designated in a town board’s final resolution is not void merely because it contains some matters not contained in the resolution, there being no extra pay provided therefor, p. 262.</p> <p>15. Injunction. — Street Assessments. — Irregularities.—Collateral Attack. — Injunction does not lie to restrain the collection of a street assessment merely because of irregularities, p. 263.</p> <p>16. Same. — Street Assessments. — Collateral Attack. — Appeal.—A suit to restrain the collection of a street assessment constitutes a collateral attack thereon; and only questions going to the jurisdiction of the board in making the assessment are triable therein, other questions being presentable only on an appeal from such assessment, p. 263.</p> <p>17. Municipal Corporations. — Street Improvements. — Notice.— Jurisdiction. — Where a town board passed a declaratory resolution for certain street improvements, gave the required notice for a hearing thereon, and gave such hearing, it has jurisdiction to make an assessment for the improvements so ordered and made. p. 263. .</p> <p>IS. Statutes. — Divisible.—Valid in Part. — Street Assessments. — ■ Even though that part of §S716 Burns 1908, Acts 1905, p. 219, §111, providing that the circuit or superior court shall render judgment on the street assessment made by the appraisers appointed without regard to the justice of such assessment be unconstitutional, the remainder of the statute may be upheld, p. 264.</p> <p>39. Municipal Corporations. — Street Assessments. — Injunction.— Time for Suit. — Statutes.—Under §8959 Burns 1908, Acts 1905, p. 219, §265, suits to enjoin the making of street improvements must be brought within ten days after the letting of the contract; and as to irregularities existing prior to such ten-day limit no subsequent suit lies. p. 265.</p> <p>20. Injunction. — Street Improvements. — Acquiescence.—Estoppel. —A property owner who, without a proper objection, permits a contractor to improve a street cannot restrain the collection of an assessment therefor, though the assessment be void, or the statute providing therefor unconstitutional, p. 265.</p> <p>21. Pleading. — Complaint.—Injunction.—Street Assessments. — Objections, — Definiteness,—A complaint to restrain the collection of a street assessment, alleging' that the contractor over the protest and against the will of the plaintiff entered upon the performance of the contract therefor and has substantially completed same, without pointing out the objections, does not show that plaintiff is not estopped to maintain such suit. p. 267.</p>

<p>1. Appeal. — Briefs.—Failure to Set Out Record. — Supply, by Appellee. — Where appellant’s brief does not set out the record showing the alleged error, but the appellee’s brief does, the point will be considered, p. 271.</p> <p>2. Same. — Briefs.—Good-Faith Effort to Comply with Rules.— Where appellant has made a good-faith effort to comply with the Supreme Court rules, defects in his brief may be disregarded, p. 271.</p> <p>3. Pleading. — Complaint.—Mandamus.—Abandonment of School District. — Negativing.—A complaint in mandamus to compel the township trustee to employ a teacher for a certain school district, alleging that such school was not abandoned under certain statutes but failing to allege that it was not abandoned under §6421 Burns 1908, Acts 1901, p. 437, providing that upon a petition of the majority of the voters of a school district the township trustee shall consolidate same with some other school district or districts, is bad, the presumption being that such school was abandoned, p. 271.</p> <p>4. Schools. — Abandonment.—Trustees:—Acts of. — Presumptions.— Mandamus. — The presumption is that a township' trustee who consolidated one school district with another did so rightfully, and he can be mandated to employ a teacher for such former district only upon a showing that he has the power to do so. p. 272.</p> <p>5. Mandamus. — Parties.—“Trustee of the Township.” — Presumptions. — Mandamus does not lie against an individual, as “trustee of Charlestown township,” to employ a teacher for a certain school in such township, the presumption being conclusive that the civil and not the school township is thereby designated, p. 273.</p> <p>6. Townships.' — School.—Civil.—The school township, though comprising the same territory, is distinct from the civil township, p. 273.</p> <p>7. Appeal. — Assignments of Errors. — New Trial. — Grounds for a new trial cannot be assigned as error independently on appeal, but are all included in the assignment on such motion, p. 274.</p> <p>8. Evidence. — Consolidation of School Districts. — Erroneous Admission. — When Harmless. — The alleged erroneous admission of evidence showing a consolidation of school districts will not be considered, where the relators in a mandamus action to compel the trustee to hire a teacher for the old district are not otherwise entitled to recover, p. 275.</p> <p>9. Mandamus. — Discretion.—Equity.—The issuing of a writ ol mandate is the subject of a legal discretion to be exercised equitably according to fixed rules, p. 275.</p> <p>10. Same. — Injustice.—Laches.—The writ of mandamus will not bi issued where it will work injustice, or where relators are at fault, p. 276.</p> <p>11. Same. — Laches.—Prejudice.—Laches, unless satisfactorily ex, eused, may defeat an action in mandamus; and in determining such delay the court will consider any injustice which may be done to individuals or to the public, p. 276.</p> <p>12. Same. — Schools.—Laches.—Where a school district was consolidated with other districts, a new house built at great expense, and school maintained therein for two years, an application for a writ of mandate to compel the trustee to provide a teacher for one of the old districts is too late, though the trustee had temporarily maintained a sehool therein for the lower grades during both years, p. 277.</p> <p>.13. Schools. — Districts. — Abandonment. — Voters.—Children who live in an adjoining township, but whose parents'had them attached to a school district in defendant trustee’s township, upon the abandonment of such school to which such children were attached, they cease to be attached to such old district, p. 278.</p> <p>14. Same. — Children.—Attachment for School Purposes. — School Voters. — Under §§6449-6453 Burns 1908, Acts 1901, p. 448, school, children, but not the parents, may be transferred from one school corporation to another for school purposes, and such transfer does not constitute the parents or guardians legal voters in such districts. p. 278.</p> <p>15. Same.- — Children.—Transfer.—Right of Action. — Parties.—Under §§6449-6453 Burns 1908, -Acts 1901, p. 448, the wrongful refusal to transfer a child from one school corporation to another gives such child a right of action which may be enforced by its next friend, p. 278.</p> <p>16. Mandamus. — Providing School Teachers. — Parties.—Outsiders. —The parents of children attached to a school abolished by consolidation two years previously cannot mandate the township trustee to furnish a teacher for such abolished district, p. 279.</p> <p>17. Same. — Petition.—Paragraphs.—Return.—Separate paragraphs of petition in mandamus are not permissible, though the return may be in separate paragraphs, to which demurrers may be addressed, p. 279.</p> <p>18. Same. — Complaint. — Requirements. — The alternative writ of mandate constitutes the complaint in mandamus, aided by the facts alleged in the petition, and must show a duty upon defendant’s part, and the power necessary to enable him to perform the act commanded, p. 280.</p> <p>19. Mandamus. — Complaint.—Amendments.-—Upon leave of court a petition in mandamus may be amended and the writ amended to conform thereto; but two paragraphs of the petition should not be filed nor two writs issued, p. 280.</p>

<p>1. Municipal Corpobations. — Sewer Improvements. — Indebtedness. —When Arises. — The indebtedness created by the construction of a sewerage system arises upon the completion of the work, and its acceptance by the municipal authorities, p. 281.</p> <p>2. Same. — Sewer Improvements. — Injunction.—Suits by Taxpayers. - —A taxpayer in a city has the right to restrain the city officers from constructing a sewerage system the result of which would be to increase the city’s indebtedness beyond the two per cent constitutional limit (Art. 13), and the threat by the city to do such act, or to assess a tax therefor, justifies the bringing of such a suit. p. 282.</p>

<p>1. Appeal. — Constitutional Law. — Evasion of Decision On. — The Supreme Court will not decide a question of constitutional law unless absolutely necessary to a decision of the case on appeal. p. 286.</p> <p>2. Mines. — Coal.—Statutes.—Wasb,Eouses for Laborers. — Intent. —The purpose of §8623 Burns 1908, Acts 1907, p. 193, §1, is to compel the person in charge of a coal mine — whatever may be his office or relation to such mine — to maintain a wash-house for the employes, p. 286.</p> <p>3. Indictment and Information. — Mines.—Failure to Provide ’WashrEouse. — An affidavit charging that défendant, “being * * * superintendent of Lost Creek mine” failed to provide a wa-sh-house for the miners, is bad, there being.no allegation:that defendant was in charge of such mine, the word “superintendent” being insufficient for such purpose: p. 286.</p> <p>4. Indictment and Ineobmation. — (Supply of Allegation Toy Inference. — Material allegations in an indictment cannot' be supplied by inference or intendment. ■ p. 287.</p> <p>5. Same. — Allegations. — Recitals. — Conclusions.—Every material element of a crime must be directly alleged, and no allegation should be introduced by an argument, conclusion, or- recital, p. 287.</p> <p>6. Same. — Recitals.—An affidavit charging that defendant “being” superintendent of a coal mine, and “being” requested in writing by more than twenty employes to provide a wash-house, failed to .do so, is bad, direct allegations being required, p. 287.</p>

<p>1. Schools. — ■Relocation.—Procedure.—Statutes.—Sections 6590, 6591 Burns 1908, §§4499, 4500 R. S. 1881, so far as they prescribe a method for the relocation of a site for a schoolhouse, were repealed by §§6417-6419 Burns 1908, Acts 1893, p. 17, §§1-3, providing a different method. p.291. ,</p> <p>2. Schools. — Relocation.-—Requisites.—Under §§6417-0419 Burns 1908, Acts 1893,-p. 17, §§1-3, the relocation of a schoolhouse requires a majority petition of the patrons, the trustee’s signature thereto and the county superintendent’s decision in favor thereof, a failure of any one of which being fatal, p. 293.</p> <p>3. Mandamus. — Township Trustee. — Township Advisory Board.— The township trustee and township advisory board cannot be compelled by mandate to appropriate money for, and erect, a school building at a point where no school site has been legally established, p. 294.</p>

<p>Prom Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Prosecution by Tbe State of Indiana against George Black. Prom a judgment of conviction, defendant appeals.</p>

<p>Prom Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Prosecution by The State of Indiana against Matt Willett. Prom a judgment for defendant, the' State appeals.</p>

<p>Prom Benton Circuit Court; James T. Saunderson, Judge.</p> <p>Action by Emery Perkins against the Cleveland, Cincinnati, Chicago & St. Lonis Railway Company. Prom a judgment on a verdict for plaintiff for $25,000, defendant appeals.</p>

<p>1. Evidence. — Possession of Money. — Ro'b'bery.—Evidence that defendant, who was indicted for assault and battery with intent to rob, had from $200 to $300 in his house at the time of the com- ■ mission of the offense, is not admissible to show a lack of motive on defendant’s part. p. 318.</p> <p>2. Robbery. — Assault and Battery with' Intent. — Evidence.—Sufficiency. — Evidence showing that the prosecuting witness, to defendant’s knowledge, collected from $200 to $300 oh Thursday evenings, that on a Thursday evening he left his office at 9 o’clock, that about 9:10 he was assaulted by a person whom he believed to 'be the defendant, that another witness saw a man waiting in the alley near by whom he believed to be the defendant, that defendant theretofore asked another witness to join with him in • securing some money “dead easy,” that afterward defendant; said to such witness “Don’t give me away,” together'with other’corroborative evidence, sustains a verdict of guilty of assault and battery with intent to rob. p. 319.</p> <p>.3. Appeai. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 322.</p> <p>4. Evidence. — Circumstantial.— Identity. — Criminal Law. — The identity of a criminal may be established by direct or circumstantial evidence, p. 322. ■</p> <p>5. Same. — Opinion.—Identity.—A witness( may testify as to his opinion of the identity of the accused with the person committing the offense in question, but he may be cross-examined as to' his means of knowledge, and the weight to be given to such testimony is for the jury, or the court trying the cause, p. 323,</p> <p>6. Evidence. — Reasonable Doubt. — Identity.—Trial.—It is incumbent upon tbe state to prove beyond a reasonable doubt that defendant was tbe person wbo committed- tbe offense charged, p. 323.</p>

From Starke Circuit Court; George Burson, Special Judge. Cross-complaint by the First National Bank of Peoria, Illinois, and another, against the Farmers and Merchants National Bank of Wabash, Indiana, and others. From a decree denying part of the relief prayed, cross-complainants appeal. Transferred from Appellate Court under cl. 2, §1394 Burns 1908, Acts 1901, p. 565, §10.

<p>1. Pleading. — Complaint.—Duplicity.-—Theory.—Appeal.—Where a paragraph of complaint proceeds upon two theories, the theory adopted by the trial court, and upon which the trial proceeded, will be adhered to on appeal, p. 353.</p> <p>2. Same. — Theory.—How Determined. — The theory of a complaint must be determined from its general scope and character, p. 354.</p> <p>3. Same. — Theory Adopted by Trial Court. — Appeal.—Where the trial judge in his special findings erroneously states that the relator in a quo warranto proceeding claimed his election!on a certain day, but the information and the evidence introduced show that he claimed his election on a subsequent day, the Supreme Court will not follow the theory adopted by the trial court, p. 354.</p> <p>4. Same. — Complaint.—Quo Warranto. — Election.—School Superintendent. — An information in a quo warranto proceeding, alleging that a certain person, who was ineligible, at an election on June 3, received a majority of the votes cast for county superintendent, that relator received a minority of such votes and was elected, that the county auditor called the trustees to meet on July 3, when they elected the relator, who duly filed his bond and demanded possession of the office, shows that relator relied upon the election of July 3 as the basis of his right to the office, p. 354.</p> <p>5. Trial.— Special Findings.-— Complaint.— Surplusage.— Special findings upon surplusage in a complaint are^valueless, p. 355.</p> <p>6. Pleading. — Complaint.—Quo Warranto. — School Superintendent. —Election.—Failure.—Subsequent Election. — An information in quo warranto alleging that the township trustees met on June 3, 1907, to eject a county superintendent, that an ineligible person received a majority of their votes, that at a called session on July 3, the relator received a majority of the votes, is sufficient, the allegation as to the election on June 3 being matter of inducement showing the reason for an election on July 3, redundant matters being disregarded when questioned for the first time after trial, p. 356.</p> <p>7. Schools. — County Superintendent. — Failure to Elect at Specified Time. — Subsequent Election. — Under §6376 Burns 1908, Acts 1899, p. 240, §1, providing that the township trustees shall meet on the first Monday in June, 1899, and every four years thereafter, and elect a county superintendent, such trustees have a right, upon a failure to elect, to reassemble afterwards and elect, p. 356.</p> <p>8. Oeeicers. — County Superintendent. — Holding Over. — •Vacancy.— Where the township trustees failed to elect a county superintendent at the proper time, but did so subsequently, the incumbent cannot retain the office on the ground that there was no “vacancy” in the office at the time of such election, p. 357.</p> <p>9. Opeicees. — Comity Superintendent. — Trustees. — Election. — Auditor’s Duty. — Notice.—On a failure of the township trustees at the proper time to elect a county superintendent, it is the duty of such trustees, upon notice from the auditor, or upon their own initiative, to reassemble and elect a superintendent, p. 358.</p> <p>10. Domicile. — '“Resident.”—Evidence.—A citizen does not change his “residence” until he forms an unequivocal intention to move to another place, and-either moves or begins to move to the new place, p. 358.</p> <p>11. Same. — Continuance of. — Presumption.—Where a residence is once established, the presumption is that it continues there until it is shown to be changed, pp. 359, 361.</p> <p>12. Same. — Evidence.—Where the evidence shows that a person left Indiana to locate in another state, but failed to find a satisfactory place, returning later to Indiana, a change of residence • is not shown, p. 359.</p> <p>13. Appeal. — Weighing Evidence. — The Supreme Court cannot weigh the evidence, and therefore must give effect to the strongest evidence in favor of the appellee, p. 361.</p> <p>14. Teial. — Burden of Proof. — Change of Domicile. — The burden of proving a change of domicile is upon the party asserting same, p. 362.</p> <p>15. Evidence. — Commissioners’ Record. — County Superintendent’s Election. — A county commissioners’ record is admissible in evidence to show the election of a county superintendent, where the record thereof was made in such book, though the statute (§6370 Burns 1908, Acts 1899, p. 240, §1) requires the record thereof to be kept in a separate book for that purpose, p. 362.</p> <p>16. Same; — Records.—Oral Proof of Facts Which Should he Contained Therein. — Where facts required to be entered of record are not so entered, oral evidence of such facts is admissible, unless the statute provides that the record shall constitute the sole evidence thereof, p. 363.</p>

Prom Probate Court of Marion County; Merle N. A. Walker, Judge. Proceeding by Albert E. Metzger, as executor of the will of Frederick Beck, deceased, against Margaretha Rocker, and others. From a judgment for plaintiff, defendants Margaretha Rocker and others appeal.

Prom Marion Circuit Court; Henry Clay Allen, Judge. Final report of Sylvanus Jackson, as administrator of the estate of William A. Jackson, deceased, to which Pearlie B. Hocke files exceptions. From a judgment for the exceptor, the administrator appeals. Transferred from Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15. (See 41 Ind. App. 711.)

From Jennings Circuit Court; Francis M. Thompson, Judge. Final report of Henry Carney, Jr., as executor of the will of Henry Carney, Sr., to which James W. Myers excepts. From a judgment approving such report, the exceptor appeals. Transferred from Appellate Court under §1394 Burns 1908, el. 2, Acts 1901, p. 565, §10.

<p>1. Intoxicating Liquors. — Statutes. — Constitutional Lam. — Repeal. — Affidavits.—Where an affidavit charged defendant with the unlawful possession of intoxicating liquors with intent to sell, and section one of the act of February 13, 1907 (Acts 1907, p. 27, §8337 Burns 1908) and section one of the act of March 16, 1907 (Acts 1907, p. 689, §8351 Burns 1908) define in the same language the keeping of such liquors with such intent as a misdemeanor, the Supreme Court, in disposing of said affidavit, will not determine whether the later act repealed the former, or whether the former act is constitutional, p. 390.</p> <p>2. Indictment and Information. — Following Statute. — Charging Conjunctively. — Intoxicating Liquors. — An affidavit following the language of §8337 Burns 1908, Acts 1907, p. 27, §1, making it a misdemeanor to keep, run or operate a place where intoxicating liquors are sold in violation of law, or to have liquors in one’s possession for such purpose, is sufficient, except that the matters mentioned disjunctively should be charged conjunctively, p. 391.</p> <p>8. Indictment and Information.— Intoxicating Liquors. — Statutes. — Negativing Provisos. — An affidavit charging defendant with unlawfully having in his possession intoxicating liquors with intent to sell in violation of §8337 Bums 1908, Acts 1907, p. 27, §1, or §8351 Burns 1908, Acts 1907, p. 689, §1, need not negative the provisions therein exempting certain persons therefrom, p. 391.</p> <p>4. Same.— Intoxicating Liquors. — ■Negativing License.— An affidavit, under §8337 Burns 1908,- Acts 1907, p. 27, §1, charging defendant with unlawfully having in his possession intoxicating liquors with intent to sell the same in violation of law, said defendant “not then and there, having a license to sell intoxicating liquors, in less quantities than five gallons,” is insufficient, since if the affidavit undertakes to show why defendant’s sale would be unlawful, it must completely negative defendant’s right to sell. p. 391.</p> <p>5. Same. — “Unlawfully.”—Failure to Aver Substantive Facts. — Intoxicating Liquors. — An affidavit charging that defendant “unlawfully” had in his possession intoxicating liquors with intent to sell the same in violation of the law, defendant not having any license to sell in quantities less than five gallons at a time, is insufficient, the word “unlawfully” not being sufficient to show that defendant did not have a right, as a wholesaler, or a druggist, to sell such liquors, p. 391.</p> <p>6. Same.. — Construction.—The sufficiency of a criminal charge must be determined from its general scope and structure, p. 392.</p> <p>7. Same. ■ — • Intoxicating Liquors. — Licenses.—Description.—In an affidavit charging that defendant had no “license to sell intoxicating liquors, in less quantities than five gallons, according to the laws of such State,” the phrase “according to the laws of such State” is descriptive of the license to sell, and the charge does not import that defendant had no license, p. 392.</p> <p>8. Same —Meaning.—Ungrammatical Language. — Ungrammatical language will not vitiate an indictment, where the meaning is plain, p. 392.</p> <p>9. Same. — Language.—Doubt.—Indictments should be drafted in concise language; and all uncertain allegations and substantial doubts must be resolved against the State, p. 392.</p> <p>10. Appeal. — Constitutional Questions. — Avoidance of Decision On. —Where a case can be decided otherwise, constitutional questions will not be determined, p. 393.</p> <p>11. Intoxicating . Liquors. — Seizure. — Destruction. — Nature of Proceedings. — The procedure under §§8338-8350 Burns 1908, Acts 1907, p. 27, §§2-14, providing for the seizure and destruction of intoxicating liquors kept for the purpose of violating the law, is in the nature-of a libel to procure the condemnation of such liquors, p. 393.</p> <p>12. Intoxicating Liquors. — Destruction.—Procedure.—Defendants. —Under §8342 Burns 1908, Acts 1907, p. 27, §6, where intoxicating liquors are seized, and a notice of the time for condemnation is posted upon the building where such liquors were found, ■ other persons than the owner, or the defendant criminally charged, may defend against the destruction of such liquors, p. 393.</p> <p>13. Same. — Destruction.—Procedure.—The procedure for the seizure and destruction of liquors unlawfully kept includes the filing of an affidavit and the search thereunder (§8338 Burns 1908, Acts 1907, p. 27, §2), the subsequent posting of a notice on the building where the liquors were found, and a hearing as to the intended use of such liquors, and, if the intended use be found to be unlawful, an order should be made for their destruction ( §8342 Burns 1908, Acts 1907, p. 27, §6) and this procedure is independent of the criminal charge required to be filed against the one in charge of such liquors (§8339 Burns 1908, Acts 1907, p. 27, §3). p. 393.</p> <p>14. Same. — Destruction.—Costs.—Section 8350 Burns 1908, Acts 1907, p. 27, §14, providing that upon a final judgment ordering the destruction of liquors designed for unlawful use, a reasonable compensation not to exceed $10 shall be taxed to the officer making the seizure, may, by construction, be limited to contested cases, p. 394.</p> <p>15. Same. — Destruction.—Criminal and Civil Actions. — Procedure. —The condemnation of liquors designed for unlawful use, and the prosecution of the criminal using them, under §§8338-8350 Burns 1908, Acts 1907, p. 27, §§2-14, are separate proceedings — the one civil, the other criminal — and they may be prosecuted in the same or different courts, at the same or different times, p. 394.</p> <p>16. Appeal. — Records.—Intoxicating Liquors. — Seizure.—Destruction-Affidavit. — Presumptions.—Where the transcript, on appeal, shows that an order was made by the trial court in a case of a certain title and number to destroy certain liquors, and the affidavit in the criminal case bore the same number, the presumption is that such order to destroy was based upon the defendant’s conviction in the criminal case, and not the result of a proceeding for the purpose, and was void for want of jurisdiction, p. 395.</p>

<p>From Laporte Superior Court; James F. Gallaher, Special Judge.</p> <p>Action by George Gray against the Knickerbocker Ice Company. From a judgment for plaintiff, defendant ap-. peals.</p>

<p>Prom Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Action by Ellen M. Caywood against The Supreme Lodge, Knights and Ladies of Honor. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court (see 41 Ind. App. 639) under §1394 Bums 1908, cl. 1, Acts 1901, p. 565, §10.</p>

<p>1. Pleading.— Complaint.— Railroads.— Negligence. — A complaint alleging that defendant railroad company negligently ran, backed and “kicked” one of its cars over a street crossing, to plaintiff’s damage, sufficiently shows a breach of duty toward plaintiff, p. 420.</p> <p>2. Same.— Complaint.— Railroads.— Street Crossing Accidents.— Question for Jury. — A complaint alleging that the plaintiff, a street-car conductor, stopped his car near a railroad crossing, alighted, walked upon the crossing, looked both ways for approaching ■ cars, but saw none, signaled his motorman to cross, and that defendant railroad company negligently ran one of its cars into his car, injuring him, is sufficient, whether he was justified in attempting to cross at the time being a question for the jury. p. 420.</p> <p>3. Touts. — Single Injm-y Caused by Several Persons. — Liability.— Satisfaction. — Ror a single injury, whether caused by one or several persons, there can be but one satisfaction, and a satisfaction by one of several inures to the benefit of all. p. 423.</p> <p>4. Action. — Joint or Several. — Torts.—Mection.—The plaintiff may elect to sue one or all joint tort-feasors which he charges with liability for the commission of an injury, p. 423.</p> <p>5. Same. — “Release.”—“Satisfaction.”—Torts.—A plaintiff, in a case of tort, may “release” one or more joint tort-feasors without losing his right of action against the others, but he cannot receive a “satisfaction” from one. without releasing all. p. 423.</p> <p>6. Same. — Torts.—Satisfaction.—Contracts.-^-A contract purporting to be a satisfaction for a wrong, and a release of a wrongdoer who is jointly liable with others, in order to be a complete dis- • charge of all, must show clearly that the. injured party has surrendered to such wrongdoer all claim for recompense on account of the wrong committed, p. 423.</p> <p>7. Action.— Compromise. — Admissions.—Presumptions.—Railroads. —A compromise entered into between a servant and a railroad company does not of itself constitute an admission of liability on the part of the company, p. 425.</p> <p>8. Touts. — Joint LiaMlity. — Satisfaction Toy One. — It is not necessary for joint tort-feasors to show, in order to escape liability, that another joint tort-feasor who has satisfied the demand against him, was in fact liable, an appearance of liability being sufficient, p. 425.</p> <p>9. Pleading. — Answer.—Satisfaction Toy Joint Tort-Feasor. — Railroads. — An answer, in an action for personal injuries against a railroad company, that plaintiff has settled his cause of action with a joint tort-feasor, need not show any demand or avowed claim against such joint tort-feasor, p. 426.</p> <p>10. Compromise and Settlement. — ■Consideration.— Retention.— Estoppel. — An injured person receiving a consideration from a joint tort-feasor and retaining' it will not be heard to deny any claim against such person, p.427.</p> <p>11. Contracts.— Compromise.— Consideration. — Damages.—Unliquidated. — An agreement in compromise of a claim for personal injuries cannot be impeached because of a want of, or an inadequate, consideration, where the injured party retains the consideration given, the recoverable damage being unliquidated and uncertain. p. 427.</p> <p>12. 'Same.— Compromise.— Consideration.— Railroads. — Reemployment. — -A. contract of reemployment of an injured servant, by a railroad company, constitutes a legal consideration for a satisfaction of a claim for- damages for injuries received, p. 427.</p>

<p>Prom Randolph Circuit Court; John W. Macy, Judge.</p> <p>Prosecution by The State of Indiana against R. Bruce Barnhardt. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Evidence. — Insanity.—How Shown. — Eon-Expert Witnesses.— It is not erroneous to exclude a question asking for a non-expert witness’s opinion of a person’s sanity, without the witness’s first ■ stating the facts upon which such opinion is based, p. 434.</p> <p>2. Same. — Improper Relations of Wife. — Homicide.—Motive.—Instructions. — In a prosecution of a wife for the murder of her husband, self-defense being the plea, evidence of the wife’s improper relations with other men is admissible as tending to show a motive, but the accused has the right to have the consideration of such evidence limited to such purpose: p. 437.</p> <p>3. Teial — Instructions.—Applicability to Evidence. — Duplication. —It is not erroneous to refuse tendered instructions which are inapplicable to the evidence, or which are substantially the same as those already given, p. 438.</p> <p>4. Same. — Instructions.—Self-Defense.—Homicide.—An instruction that if the accused was in a place where she had a right to be, and “without fault,” she had a right to resist force by force, is not erroneous on the ground that it places upon the accused the burden of proving that she was “without fault.” p. 439.</p> <p>5. Same. — Burden of Proof. — Self-Defense.—Defendant’s Fault.— The burden of proving beyond a reasonable doubt, in a homicide ease, that the accused was the aggressor in the first instance, the plea being self-defense, is upon the State, p. 440.</p> <p>6. Same. — Instructions.—Invited Error. — An accused cannot be heard to complain of an instruction stating that where defendant was in a place where she had a right to be, and “without fault,” she had a right to repel force by force, where she asked that instructions containing the phrase “being without fault,” be given, and which were given, p. 440.</p> <p>7. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 440.</p>

<p>1. Indictment and Information. — Assault and Battery with Intent. — Conviction-for Assault and Battery. — Questioning Charge of Intent. — One who is charged with assault and battery with intent to murder, and who is convicted of assault and battery only, cannot question the sufficiency of the indictment as to the intent only. p. 442.</p> <p>2. Same. — Assault and Battery with Intent. — Motion to Quash. — ■ When Sustainable. — A motion to quash an indictment for assault and battery with intent to mufder, when directed to the whole indictment, should be overruled, where the assault and battery is sufficiently charged, p. 442.</p> <p>3. Same.— Good and Bad Counts.— General Verdict.— Effect.— Where an indictment contains two counts — one good, the other •bad — and a general verdict is given thereon, it will be conclusively presumed to be upon the good count, the error in refusing to quash the bad one being, therefore, harmless, p. 443.</p> <p>4. Appeal. — Criminal Law. — Instructions.—Bills of Exceptions.— No question can be raised, on appeal, on the instructions in a criminal case, where they are not brought into the record by a bill of exceptions, p.443.</p> <p>5. Same. — Weighing Evidence. — The Supreme' Court will not weigh conflicting evidence, p. 443.</p>

<p>1. Trial. — Burden of Proof. — Self-Defense.—Criminal Law. — The burden is upon the State to prove beyond a reasonable doubt that the act charged against accused was not committed while the accused was in the exercise of his right of self-defense, p. 446.</p> <p>2. Same. — Instructions.—Burden of Proof. — Self-Defense.—Invited Error. — The accused cannot be heard to complain of instructions placing upon him .the burden of proving beyond a reasonable doubt his plea of self-defense, where he asked an instruction embodying the same doctrine, p. 447.</p> <p>3. Criminal Law. — Self-Defense.—To Whom Available. — The law of self-defense is available only to those who act honestly and in good faith, and cannot be used as a shield for the protection of one clearly guilty of murder, p. 447.</p> <p>4. Trial. — Instructions.—Self-Defense.—Honest Eosercise of Right. —In a case of murder, the jury being instructed as to the law of self-defense, it is not erroneous to instruct that if, upon the facts, it appears beyond a reasonable doubt that the defendant in taking decedent’s life was not honestly and in good faith exercising such right of self-defense, he cannot be acquitted upon that ground, p. 447.</p> <p>5. Homicide.— Self-Defense.— Public. Alley.— Debauching Decedent’s Wife. — Pault.—An accused who, in the night, enters a public alley adjacent to the-premises of decedent in an attempt to debauch decedent’s wife, is not “in a place where he has a right to be and without fault,” as those terms are employed in the law of self-defense, p.448. .</p> <p>6. Trial. — Instructions.—Murder.—Right to Defend Home. — In a murder ease where there was evidence that the accused had maintained improper relations with decedent’s wife, and that accused had taken decedent’s life, at night, in the alley at the rear of decedent’s house, an instruction that decedent had a lawful right, by the use of reasonable means, to protect the honor and sanctity Of hj¡3 home from any person who might seek to bring it into disgrace by having improper relations with his wife, is applicable to the case and not erroneous nor misleáding. p. 449.</p> <p>7. Trial. — Instructions.—Enumerating Facts. — Omissions.—An instruction enumerating particular facts to be considered upon the question of the accused’s good faith in his claim of self-defense, in connection with “all the evidence and the facts and circumstances as shown by the evidence surrounding and leading up to the killing,” is not open to the criticism that it omits essential facts, p. 450.</p> <p>8. Same. — Instructions.—Assumption of Facts. — An instruction that the accused had introduced evidence tending to prove a good reputation for peace and quietude “prior to the time of the commission of the crime herein charged,” does not assume that a, crime had been committed, p. 450. «</p> <p>9. Same. — Instructions.—Murder.—Ejecting Intruders from Premises. — An 'instruction that decedent had the legal right to eject the accused from decedent’s premises, which was at first refused, but afterwards given, affords no cause for complaint on the part of the accused, p. 450.</p> <p>10. Same. — Instructions.—Duplication.—It is not erroneous to refuse to give instructions, where the substance thereof is covered by instructions already given, p. 451.</p> <p>11. Evidence.— Objectionable Questions.— Failure to Answer.— Error cannot be predicated upon the overruling of an objection to a question, where no answer was given thereto, p. 451.</p> <p>12. Same. — Concealed Revolver. — Opinions.—Motions to Strike Out. —The question, in a murder ease, “Did you feel any weapon in his [accused’s] coat at'that time?” is not objectionable, and if the answer, “Yes, I felt something in his pocket. I was satisfied it was a revolver,” was objectionable, the proper course was to move to strike out. p. 451.</p> <p>13. Same.* — Quarreling. — Murder. — Evidence of hearing quarreling is admissible in a murder case, though the witness could not understand any of the language used. p. 451.</p> <p>14. Same. — Excluding Questions. — Failure to Make Offer of Proof. —Where the trial court sustained objections to- a proposed question, and no offer was made showing what the testimony would be in answer thereto, no question can be raised thereon on appeal, p. 451.</p> <p>15. Same. — Uncommunicated Threats by Decedent. — Murder.—Evidence of uneommunieated threats made by decedent against the accused is admissible in a murder case, where there is evidence that decedent first attacked the accused, p.452.</p> <p>16. Same. — Eea/rsay.—Uncommunicated Threats. — It is not erroneous to refuse to permit the accused to testify that, on the night "When the homicide took place, a third person saw decedent exhibit a knife and threaten the accused, such evidence being hearsay, p. 452.</p> <p>17. Evidence.— Striking Out.— Cross-Examination. — Discretion.— Effect. — Requiring a character witness, on cross-examination, ' to answer an hypothetical question for the adverse party is not, of itself, an abuse of discretion; and where the court subsequently struck out the testimony so elicited, no available error is shown, p. 452.</p> <p>18. Trial. — Argument to Jury. — Misconduct of Counsel. — Misconduct of counsel in the argument to the jury cannot be availed of in a motion for a new trial, where the'record fails to show any motion, ruling or exception, at the time in reference thereto, p. 452.</p> <p>19. Appeal.— Briefs.— Rules.— Merits.— The Supreme Court has the power to disregard the strict letter of the rules in the preparation of briefs, and decide an appeal upon its merits, p. 453.</p>

<p>From Hancock Circuit Court; Samuel A. Wray, Special Judge.</p> <p>Petition by Charles E. Scott against James L. Smith. From a judgment for defendant, petitioner appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.</p>

_ Prom Lake Circuit Court; Willis G. McMahan, Judge. Eminent domain proceeding by the Lake Shore & Michigan Southern Railway Company against the Lake Shore Sand Company and others. Prom a judgment for plaintiff, defendant company appeals.

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Newton J. Hostetter against the Chicago, Indianapolis & Louisville Bailway Company. From a judgment for plaintiff, defendant appeals. Appealed from the Appellate Court under §1394 Burns 1908, cl. 3, Acts 1901, p. 565, §10.</p>

<p>,1. Appeal.— Complaint.— Objections to.— Specificness.— Towns.— Failure to Provide Barriers Along Sidewalk. — An assignment, on appeal, that plaintiff’s complaint alleging defendant town’s negligence in failing to provide a barrier along its sidewalk at a dangerous place, did not state facts showing a duty to provide such barrier, and that such duty cannot be left to mere inference or conjecture, is too general to present any question, p.488.</p> <p>2. Pleading. — Complaint.—Allegations.—Inferences.—A complaint must be read in the light of all facts necessarily inferred from the facts well pleaded, matters of substance being frequently shown by the narration of an event, p. 489.</p> <p>3. Same. — Complaint.—Municipal Corporations. — Dangerous Sidewalks. — Necessity for Guards. — -A complaint alleging that defendant town maintained a sidewalk alongside of a lot which lay from four to ten feet beneath the level of such sidewalk, and that in some places the descent from the sidewalk was perpendicular, shows a necessity for the town’s guarding of such sidewalks by barriers or otherwise, p. 490.</p> <p>4. Municipal Cobpobations. — Dangerous Excavations Near Sidewalk. — Nuisance.—The maintenance, by a town; of an excavation beside a sidewalk, wherein a traveler may fall, constitutes a public nuisance, p. 490.</p> <p>5. Same. — Dangers Near Sidewalks.- — Duties.—Municipal corporations are liable for excavations made by private parties upon-their own premises only where such excavations can be reasonably considered as endangering persons traveling upon the streets or sidewalks, p. 490.</p> <p>6. Municipal Corporations. — Streets.—Keeping Safe. — It is the duty of municipal corporations to use ordinary care to keep their streets in a safe condition; and this duty extends to providing against dangers contiguous to such streets, p. 492.</p> <p>7. Pleading.— Complaint.— Municipal Corporations.— Dangerous Sidewalks.— Negativing Contributory Negligence.— A complaint alleging that plaintiff’s injuries were caused “without any fault or negligence on his part,” and “wholly by the fault and negligence of defendant in failing to place any railing, guard, fence or barrier along” the dangerous sidewalk, shows that plaintiff was not guilty of contributory, negligence, and that the injury was not caused by the negligence of a third person, p. 492..</p> <p>8. Same. — Complaint.—Towns.—Dangerous Sideioalh. — Concurring Negligence. — Proximate Cause. — Estoppel.—Where a complaint alleges that plaintiff’s injuries were caused solely by defendant town’s failure to place a guard along its dangerous sidewalk, such town is estopped from showing that a defect in the street, for which it was responsible, was also a proximate cause of such injuries, p. 493. '</p> <p>9. Same.— Complaint.— Clear Statement.— Where a complaint plainly states the facts creating a liability, it is sufficient, p. 493.</p> <p>10. Municipal Corporations. — Liability for Defective Public Ways. —Towns and cities are liable for negligence in the maintenance of their public ways. p. 493.</p> <p>11. Same. — Dangerous Sidewalks. — Cuards.—Necessity for. — Question for Jury. — Whether a guard was needed at a point where there was a perpendicular descent from the sidewalk is ordinarily a question for the jury. pp. 494,501.</p> <p>12. Trial. — Interrogatories to Jury. — Municipal Coiporations.— Dangerous Sidewalks. — Answers to interrogatories -showing that the plaintiff stumbled over a projection in the sidewalk and fell into a depression near the sidewalk, while passing a woman in the dark, that there was some light from street lights and from the stores and houses near by, but none from the street light at the crossing which plaintiff was approaching, do not overcome a general verdict that the town’s failure to place a guard at such point was the proximate cause of plaintiff’s injuries, p. 494.</p> <p>13. Same. — Interrogatories to Jury. — Notice.—It is improper to submit to a jury an interrogatory asking- whether the officers of a town had notice of a dangerous sidewalk, such question being one of mixed law and fact. p. 494.</p> <p>14. Same. — Interrogatories to Jury. — Dangerous Sidewalks. — Continued Use Without Accident. — An answer to an interrogatory to the jury, showing that the public had used the alleged defective sidewalk a long time without accident, does not overthrow a general verdict for plaintiff that the town was guilty of negligence therein, p. 495.</p> <p>15. Tbial. — Interrogatories to Jury. — Towns.—Defective Sidetoallcs. — Notice.— Contributory Negligence.— Question for Jury.— Answers to interrogatories to the jury showing that plaintiff in the night went along a dark sidewalk knowing of a depression along the side thereof, that in attempting to pass a woman he stepped two or three feet off the side of the way, stumbled and fell into such depression, sustaining injuries, do not control a general verdict for plaintiff, the question of contributory negligence being for the jury. p. 495.</p> <p>16. Same. — Interrogatories to Jury. — Conflict.—Conflicting answers to interrogatories to the jury nullify one another, p. 496.</p> <p>17. Negligence. — Contributory.-^Dangerous Sidewallcs. — Notice.— Question for Jury. — A traveler in walking along a known dangerous sidewalk and receiving injuries thereby is not guilty of contributory negligence as a matter of law, such question being for the jury. p. 496.</p> <p>18. Tbial. — Burden of Proof. — Contributory Negligence. — Presumptions. — The burden of proving contributory negligence is on defendant, and where the record is silent on the question, no presumption of such negligence arises, p. 498.</p> <p>19. Municipal Coepoeations. — Dangerous Sidewallcs. — Guards.— Accidents of Travel. — Question for Jury. — It is the duty of a town to guard a dangerous sidewalk, so as to prevent ordinary accidents of travel, and whether a traveler using such sidewalk, with knowledge thereof, is guilty of contributory negligence is ordinarily a question for the jury. p. 498.</p> <p>20. Teial. — Instructions.—Contributory Negligence. — Slight Want of Care. — An instruction, in a personal injury case, denying a right of recovery if any want of care or neglect by plaintiff contributed to his injury, was properly refused, since a slight want of care might not fall below the standard, p. 498.</p> <p>21. Same. — Instructions.—Duplication of. — It is not erroneous to refuse to give instructions which are substantially covered by those given, p.498.</p> <p>22. Same. — Instructions.-^-Duty to Loolc. — Dangerous Sidewallcs.— An instruction, -in a personal injury case, that it was plaintiff’s duty to use his vision and every reasonable means of observation to ascertain the known defects in the sidewalk, but failing to describe the defects causing him to stumble, was properly refused, p. 499.</p> <p>23. Same. — Instructions.—Haiynless.—Interrogatories.—Answers to interrogatories to the jury may render harmless the court’s refusal to give a tendered instruction, p. 499,</p> <p>24. Teial. — Instructions.—Invading Province of Jury. — Instructions invading the province of the jury should be refused, p. 499.</p> <p>25. Same. — Instructions.—Negligence.—An instruction that plaintiff “took the risk upon himself” in passing over a known defective sidewalk was properly refused, where it failed to show that plaintiff’s injuries were caused thereby, p.499.</p> <p>26. Negligence. — Proximate Cause. — Question for Jury. — What is the proximate cause of an injury is usually a question for the jury. p. 499.</p> <p>27. Teial. — Instructions.—Precision.—The court should refuse to give a tendered instruction unless its terms are precisely correct, p. 500.</p> <p>28. Same. — Instructions.—Duty of City to Keep Streets mid Sidewalks Safe. — An instruction, in a personal injury ease, that it was the duty of the defendant town to keep its streets and sidewalks in a reasonably safe condition, is not misleading, where another instruction said that its duty was to exercise ordinary care therein, p. 500.</p> <p>29. Same. — Instructions.—Invited Error. — Appellant is estopped to complain of an alleged erroneous instruction, where it asked one in substantially the same language, p. 500.</p> <p>30. Municipal Cobpobations. — Dangerous Sidewalks. — Notice.— Where a low and unguarded lot has existed along the side of a sidewalk for many weeks, notice thereof, to the town, may be assumed, p. 501.</p> <p>31. Teial. — Instructions.—Dangerous Sidewalks. — Notice.—An instruction that defendant town, to be liable, must be shown to have had notice of the dangerous sidewalk causing the injuries, is erroneous, since the existence of such condition for a sufficient length of time for the town officials to know thereof charges such town with notice, p. 502.</p> <p>32. Evidence. — Objections.—Striking Out. — Reintroducing Without Objection. — Where certain evidence was objected to, the objection overruled, and an exception saved, and the court afterward struck out such evidence, its introduction at a subsequent time without objection furnishes no just cause of complaint, p. 502.</p> <p>33. Same. — Condition of Low Lot Adjoining Sidewalk. — In an action by a traveler against a town for injuries received by falling from an unguarded sidewalk into a low lot adjoining thereto, evidence that a bill-board had stood on the front of such lot some time before the injuries were received, is harmless, p. 503.</p> <p>34. Same. — Earnings.—Damages.—Towns.—Dangerous Sidewalks. —In an action for damages sustained because of a dangerous sidewalk, evidence of plaintiff’s earnings at the time of the injury is admissible, p. 503.</p>

Prom Noble Circuit Court; Joseph W. Adair, Judge. Drainage proceeding by John Kunkalman and others against which Harlan Gibson and others remonstrate. Prom a judgment dismissing the proceeding, petitioners appeal.

' Prom Superior Court of Marion County (68,594); Vinson Carter, Judge. Cross-complaint by the Potter Manufacturing Company against A. B. Meyer & Company and others. Prom a judgment for defendants, cross-complainant appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

Prom Allen Circuit Court; E. O’Rourke, Judge. Highway proceeding by Elmer E. Rhodes and others, against which the New York, Chicago & St. Louis Railroad Company and others remonstrate. ' Prom a judgment for .petitioners, remonstrants appeal.

From Superior Court of Allen County; John M. Morris,. Judge pro tem. Action by Ada A. Farra against Eva J. Braman and an- . other. From a judgment against plaintiff, she appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

<p>1. Statutes.— Criminal.— Construction.— Criminal statutes are strictly construed, but such reasonable view must be taken as will carry out the intent of the legislature, p. 548.</p> <p>2. Statutes. — Pure Food. — Intent.—Construction.—The intent of the pure food law (Acts 1907, p. 153, §7638 et seg. Burns 1908) was to protect the people against fraud and imposition by the sale of impure and inferior articles, and such construction should be given thereto as will secure such benefits, p. 549.</p> <p>3. Ceiminal Law. — Selling Impure Foods. — Intent.—In a prosecution for a violation of section one of the pure food law (Acts 1907, p. 153, §7638 Burns 1908), providing, among other things, that it shall be unlawful for any person, firm or corporátion to sell any misbranded or adulterated article of food, the defendant’s knowledge of the misbranding or adulteration is immaterial, the sale itself being prohibited, p. 549.</p> <p>4. Health. — Sales of Adulterated or Impure Foods. — Guilty Intent. — The sale of adulterated or impure food is dangerous to the public health, and the guilty intent of the seller is irrelevant, p. 549.</p> <p>5. Ceiminal Law. — Pure Food. — Sales of Oleomargarine for Butter. — Principal and Agent. — The sale of oleomargarine for butter constitutes a crime under the pure iood law (Acts 1907, p. 153, §1, §7638 Burns 1908), and a merchant is liable tor the sale thereof by his agent, though he has given such agent explicit instructions not to make such sales, p. 550.</p> <p>6. Peinúipal and Agent. — Unlawful Sales by Agent. — Liability of Principal. — Where the element of guilty knowledge and intent is eliminated from an offense, the principal is liable for unlawful sales made by his agent in the general scope of his business, p. 553.</p>

From Elkhart Circuit Court; Lemuel W. Royse, Special Judge. Proceeding to vacate a public- highway, by Henry Butt and others, against which John M. Iffert and another remonstrate. From a judgment for remonstrants, petitioners appeal.

<p>Original petition by Edward V.. Fitzpatrick, as Clerk of the Supreme Court.</p>

<p>False Pretenses.— Future Promises.— Post-Dated Oheolcs.- — The giving of a check dated June 19 for goods purchased on June 17, the purchaser stating that he had $80 or $90 then in the bank and would have the remainder therein upon the date named in the check, does not constitute a false pretense,' since a promise to perform a thing in the future is not a representation of a fact.</p>

<p>From Criminal Court of Marion County (36,323); James A. Pritchard,- Judge.</p> <p>Prosecution by The State of Indiana against Charles Ward. From a judgment of conviction, defendant appeals. -</p>

<p>1. Appeal. — Instructions.—How Made Part of Record. — Where the instructions refused are set out in the transcript, together with an order-book entry stating that such instructions and those given, “together with the exceptions thereto, are by the court ordered filed and made a part of the record in this case, without a bill of exceptions,” such instructions are not in the record and</p> <p>■ cannot be considered, there being no record showing the actual filing thereof, p. 570.</p> <p>2. New Trial. — Overruling Objections to Evidence. — How Shown. —Appeal.—To raise any question, on appeal, upon the overruling of an objection to a question, the motion for a new trial must show not only the question propounded and the objection thereto, but also the answer, the court, on appeal, being unable to determine, without such answer, whether the alleged error was harmful. p. 572.</p>

From Hancock Circuit Court; Robert L. Mason, Judge. Petition by Victoria L. White, as administratrix of the estate of Polly Lineback, deceased, against Matilda War-rum and others. From a decree for petitioner, Matilda Warrum and others appeal.

From Dubois Circuit Court; E. A. Ely, Judge. Highway proceeding by George W. Beatty and others, against which Henry G. Thompson and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>Prom Montgomery Circuit Court; Jere West, Judge.</p> <p>Action by Jacob R. Etter against the Cleveland,' Cincinnati, Chicago & St. Louis Railwáy Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Vigo County; S. G. Stimson, Judge.</p> <p>Action by Robert R. Lynn against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $7,000, defendant appeals. Appealed from Appellate Court under §1394 Burns 1908, cl. 3, Acts 1901, p. 565, §10.</p>

<p>1. Indictment and Information. — Reoitals.—Highways.—Failure to Repair. — Rural Mail Delivery. — An affidavit charging that defendant failed to repair a highway used for rural free delivery, said defendant “then and there having received notice” of the alleged defects, and “then and there * * * being the duly elected, qualified and acting township trustee” of the township in which said highway was situate, fails to show any notice, or that defendant was the township trustee, p. 609.</p> <p>2. Same.— Reoitals.— Highways.— Riiral Free Delivery. — Bstablishment and Maintenance. — An affidavit charging that defendant township trustee failed, after notice, to repair a certain highway which was in an impassable condition, the same “being a public highway over which a rural mail route was then and there maintained,” does not show that a rural free delivery mail route had been established and maintained thereon, p. 609.</p> <p>3. Highways. — Rural Free Delivery. — Repairs.—Duties of Boards of Commissioners and Township Trustees. — Under §7779 Burns 1908, Acts 1907, p. 298, it is the duty of the board of commissioners, upon notice from the township trustee, to repair defects in highways over which rural free delivery mails are carried, even though no appropriation therefor has been made by the county council, and if the board fails to do so, the trustee may, at his discretion, do so. p. 610.</p>

<p>1. Appeal.-— Complaint.— Sufficiency.— Instructions.— Same Question. — Where a demurrer to a complaint and the correctness of an instruction present the same question, the Supreme Court will determine the question but once. p. 614.</p> <p>2. . Constitutional Law. — Employers’ Liability Act. — Street Railroads. — Section 8017 Burns 1908, Acts 1893, p. 294, §1 — the employers’ liability act — is constitutional as to railroads, p. 615.</p> <p>3. Same. — Class Legislation. — The Constitution does not forbid the making of proper classifications of subjects for legislation, p. 615.</p> <p>4. Same.— Employers’ Liability Act.— Railroads.— Section 8017 Burns 1908, Acts 1893, p. 294, §1 — the employers’ liability act — is constitutional as to railroads for the reason that the dangers inherent in operating same are peculiar and not co'mmon to other forms of employment, p. 616.</p> <p>5. Same. — Employers’ Liability Act. — Railroads.—Operating Trains. —Other Hazards. — Section 8017 Burns 1908, Acts 1893, p. 294, §1 ■ — the employers’ liability act — applies only to railway employes engaged in the actual operation of trains, and to those whose duties bring them into a situation where they are exposed to the dangers flowing from such operation, pp. 616, 617.</p> <p>6. Same. — Class Legislation. — Class legislation may be enacted, but the classifications must -inhere in the subject-matter, and rest upon a substantial reason, p. 616.</p> <p>7. Master and Servant. — Employers’ Liability Act. — Street Railroads.- — A servant engaged as a member of a construction gang in unloading rails from a flat-car standing on a siding of the street-car tracks, cannot claim the benefits of section one of the employers’ liability act (Acts 1893, p. 294, §8017 Burns 1908), since he was not exposed to any of the dangers of railroad operation. p. 618.</p> <p>8. Pleading. — Complaint.—Master and Servant. — Employers’ Liability Act. — A complaint alleging that the plaintiff — a member of a street railroad construction gang — was injured “wholly and entirely” by reason of the negligence of the foreman in charge of such gang in the placing of skids and in not furnishing a sufficient number of servants to handle and carry the rails which they were unloading from a flat-car, is not founded upon negligence at the eomm'on law, but upon the employers’ liability act (§8017 Burns 1908, Acts 1893, p. 294, §1). p. 621.</p> <p>9. Master and Servant. — Fellow Servants. — Liability for "Negligence of. — Masters are not liable at the common law for the negligence of fellow servants, p. 622.</p> <p>10. Same. — Ways, Works and Machinery. — It is the master’s duty to use reasonable care to provide safe ways, works and Machinery for the use of the servant, and it is the servant’s correlative duty to use them in a safe and proper manner, p. 622.</p> <p>11. Same. — Felloio Servants. — Foreman of Section Gang — The foreman of a section gang, though authorized to give orders to the servants working under him, is a fellow servant with them, except when in the performance of a master’s duty. p. 622.</p>

<p>1. Officers. — Legislative Power to Fix Terms of. — The legislature has the power to fix the commencement of terms of office within the constitutional restrictions, p. 627.</p> <p>2. Same. — Term of Office. — The term of office refers to the office and not to the incumbent, and is not changed by varying the times of election, p. 628.</p> <p>3. Same. — “Present Incumbent.” — “The term of the present incumbent,” as used in §9475 Burns 1908, Acts 1897, p. 288, providing “that the term of county treasurer shall begin on the first day of January, next following the term of the present incumbent,” 'applies only to county treasurers whose terms expired before the next general election at which their successors might be chosen. p. 628.</p> <p>4. Same. — Terms.—Change of Commencement of. — Fixing the time of the commencement of the term of an office at a date subsequent to the expiration of an incumbent’s term causes a vacancy at the end of such incumbent’s term, if he is ineligible, but if he is eligible, he will hold over under the Constitution (Article 15, §3), ,p. 628.</p> <p>5. Constitutional Law. — Elections.—Postponing.—The legislature cannot change the commencement oí the term of a constitutional office so as to postpone the time of holding an election to fill same, where the incumbent’s term expired before a general election at which his successor to such office could have been elected, p. 629.</p> <p>6. Same. — Changing Terms of Office. — The legislature can neither abridge nor lengthen the term of a constitutional office, p. 629.</p> <p>7. Same. — County Auditors’ Terms. — Postponing Elections. — The act of 1901 (Acts 1901, p. 411, §9148 Burns 1908), providing, among other things, that “the term of office of the county auditor * * * shall begin on the first day of January next following the term of office of the present incumbent,” is unconstitutional as to an officer elected at the general election of 1902, and whose term of office began March 28, 1904, the necessary result being a postponement of the time for holding the election for county auditor, pp. 629, 631, 632.</p> <p>8. Same. — Officers Molding Over. — Terms.—Where a county auditor-elect was entitled to his office on March 28, but the incumbent held over until July 5, the term of the auditor-elect was not thereby changed, the period held over being counted as a portion of the auditor-elect’s term. p. 631.</p> <p>9. Same. — Elections.—The Constitution requires elections to be so held that constitutional offices may be filled at the expirations of the terms thereof, and statutory provisions must be construed agreeably thereto, p. 632.</p> <p>10. Elections. — Right of Suffrage. — The right of suffrage is political and not natural; and, in the absence of constitutional restrictions, may be given or withheld at the legislative discretion. ' p. 633.</p> <p>11. Estoppel. — Facts Known hy Both Parties! — An estoppel cannot arise where the facts are equally well known by both parties, p. 633.</p>

<p>Prom Clay Circuit Court; Lewis F. Tilley, Special Judge.</p> <p>Action by Samuel M. McGregor against the Board of Commissioners of the County of Clay. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court (see 42 Ind. App. 688); under §1392 Burns 1908, cl. 1, Acts 1907, p. 237, §1.</p>

<p>1. Evidence. — Application for Purchase of Liquor. — Power to Compel Accused to Produce. — Where a druggist, charged with an illegal sale of intoxicating liquor, upon proper notice, refuses to produce at the trial the application for the purchase of such liquor, the court is unable to compel the production thereof, p. 643.</p> <p>2. Same. — Oral.—Contents of Writing in Possession of Accused.— Where an accused druggist was given the proper notice to produce a certain application, in his possession, for the purchase of intoxicating liquors, and he fails to produce same, oral evidence thereof is admissible, p. 643.</p> <p>3. Same. — Written.—Order to Produce. — Objections.—When Made. —Trial.—Appeal.—Objections to an application for an order on a defendant, in a criminal case, to produce certain writings in his possession, to be used as evidence at the trial of his ease, must be made at the time, or they are waived, p. 644.</p> <p>4. Intoxicating Liquors.— Unlawful Sales. — ■ Druggists. — ■ Corpus Delicti. — Evidence.—Evidence showing a confession, by a druggist, of a sale of liquor to a certain person, a written application therefor in the possession of such druggist, and marked “can-celled,” and that the purchaser by his appearance, talk, manner and odor indicated drunkenness, and a conviction for public intoxication, sustains a conviction for an unlawful sale. p. 644.</p> <p>5. Criminal Law . — Proof of Venue. — The venue of a criminal case must be proved in order to sustain a conviction, p. 645.</p> <p>6. Evidence. — Venue.—Where a witness detailed a confession made by defendant of the sale of liquor to a drunkard, and was asked: “All this occurred in Gibson county, did it?” to which he answered : “Yes, sir,” the venue was sufficiently proved, p. 646.</p>

Prom Boone Circuit Court; Samuel B. Artman, Judge. Action by tbe State of Indiana, on the relation of Warren Bigler, as Auditor of State of the State of Indiana, against Americus C. Daily. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court (see 42 Ind. App. 690) under §1399 Burns 1908, Acts 1901, p. 565,. §15. .

From Lake Circuit Court; Willis C. McMahan, Judge. Suit by the East Chicago Company against the City of East Chicago and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court (see 42 Ind. App. 383) under §1429 Burns 1908, Acts 1893, p. 29.

<p>Prom White Circuit Court; James P. Wason, Judge.</p> <p>Action by The State of Indiana against Samuel A. Rose and others. Prom a judgment for the plaintiff, defendant appeals.</p>

<p>Prom Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Prosecution by The State of Indiana against Clarence Myers. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Coroners. — Inquests.—Autopsies.—Authority for. — Under §9439 Burns 1908, §5879'R. S. 1881, autopsies may be legally held only where a legal inquest is held — in cases where death is supposed to have resulted from violence or casualty, p. 676.</p> <p>2. Same. — Inquests.—Arbiter of. — Coroners, being ministerial officers, are not the sole judges of when inquests should be held, but they must act only in cases where death reasonably appears to have been caused by violence or casualty, p. 676.</p> <p>3. Notice. — Officers.—Ooroners.—Powers.—Coroners are chargeable with notice of the statutory limitations upon their powers, p. 677.</p> <p>4. Estoppel. — Unauthorized Acts of Public Officers. — No estoppel can grow out of the unauthorized acts of public officers, p. 677.</p> <p>5. Coroners. — Inquests.—Autopsies.—Where a child was at home and regularly attended by physicians and there was no suspicion of death from casualty or violence, a coroner’s inquest, and therefore an autopsy, could not legally be held, although the exact cause of the death was not known, inquests and autopsies being authorized solely as an aid in the administration of the criminal law. p. 677.</p> <p>6. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 678.</p>

From Vigo Circuit Court; James E. Piety, Judge. Condemnation proceeding by the City of Terre Haute against which Jacob Sachs and others remonstrate. From a judgment for remonstrants, the city and others appeal.

<p>Prom Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by James O’Connor against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment bn a verdict for plaintiff for $7,000, defendant appeals.</p>

Prom Noble Circuit Court; Joseph W. Adair, Judge. Proceeding by The State of Indiana for the destruction of certain intoxicating liquor claimed by Charles Campbell. Prom a judgment ordering the destruction thereof, claim-' ant appeals.

<p>Prom Carroll Circuit Court; James P. Wason, Judge.</p> <p>Highway proceeding by Wesley A. Prick and others, against which James P. Sterling remonstrates. Prom a judgment for petitioners, remonstrant appeals.</p>

Prom Miami Circuit Court; Daniel P. Baldwin, Judge pro tern. Highway proceeding by John Ralston and others, against which Abram I. Beall and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

<p>Prosecutions by The State of Indiana. From judgments quash-, ing the affidavits and discharging defendants, the State appeals.</p>

From Jasper Circuit Court; G. W. Eanley, Judge. Petition for highway by John J. Lawler and others, against which Elizabeth Gangloff and others remonstrate. From a judgment for petitioners, remonstrants appeal.