Volume 172 — Indiana Reports

<p>1. Appeal.—Briefs.—Failure to File.—Buies.—Appellee’s failure to file a brief is sufficient cause for a reversal, p. 4.</p> <p>2. Pleading.—Demurrer to Answer.—Form.—A demurrer to paragraphs of answer for the reason that “neither of said paragraphs of answer contains facts sufficient to constitute an answer to plaintiff’s complaint,” presents no question, p. 4.</p> <p>3. Pleading.—Answer.—Completeness—An answer, presented as a complete defense to a cause, must state facts sufficient to constitute a complete defense, and it will be insufficient if it constitute but a partial defense, p. 4.</p> <p>4. Officers.— Bemoval from State.— Abandonment.— Evidence.— Evidence that a township assessor sent to the board of commissioners a letter of resignation on condition that the board appoint a named person as his successor, and stating that he would be absent from the State, between December and March, on account of his health and to visit a brother’s grave, is insufficient to show a change of residence or an abandonment of the office, p. 4.</p> <p>5. Officers.'—Abandonment of Office.—The abandonment of an office requires a total, permanent relinquishment of the duties thereof, p. 6.</p> <p>G. Officers.—Township Assessors.—Vacancy.—Auditor’s Decision. —The em parte decision of the county auditor that there exists a vacancy in the office of township assessor does not create a vacancy therein, p. 7.</p> <p>7. Officers.—“Resignation.”-—To constitute a “resignation” of an office there must be an intention to relinquish the same—a renunciation of the further right thereto, p. 7.</p> <p>8. Officers.— Resignations.—-To Whom Made.— Revocation.— A resignation must be made to those having the power to appoint a successor or to call an election, and can be recalled at any time before acceptance, p. 7.</p> <p>9. Officers.—Resignations.—Township Assessors.—A letter of resignation by a township assessor to the board of commissioners, conditioned upon the board’s appointment of a named person as his successor, is ineffective, the same being conditional, and being addressed to the board instead of to the auditor, the appointing power, p. 8.</p> <p>10. Contracts.—For Resignation of Officers.—Contracts for the resignation of an officer in favor of another, or to promote-another, or for the appointment of another, are void as against public policy, p. 9.</p> <p>11. Evidence.-—-Acts of Others.—Contracts to Resign Office in Favor of Another.-—-In an action to recover possession of the office of township assessor, evidence that the board of commissioners’ appointee, in whose favor the relator had conditionally resigned, had offered to resign his rights for a stipulated sum, is inadmissible as against the relator, p. 9.</p>

<p>1. Pleading.— Complainl.— Theory.— Sow Determined.— A complaint must proceed, and be sufficient, upon some definite theory, such theory being determined from the general scope and tenor of the complaint, p. 15.</p> <p>2. Pleading.—Complaint.—Statutory Bight.-—A complaint based upon a statutory right must clearly show that the plaintiff has suffered a breach of such right, p. 15.</p> <p>3. Statutes.—Construction.—Penalties.—Persons cannot be subjected to statutory penalties by implication or construction, p. 15.</p> <p>4. Pleading.— Complaint.— Express Companies.— Penalties.— A complaint by the State against an express company for a failure to deliver a package, and demanding a penalty, is not based upon §3912 Burns 1908, Acts 1901, p. 97, providing that any express company failing to deliver a package in a city of more than 2,500 population shall be fined in any sum not to exceed $100 nor less than $10. pp. 16,19.</p> <p>5. Pleading.—Complaint.—Express Companies.—Penalties.—A complaint by the State against an express company for its .failure to deliver an express package to the consignee, and demanding a penalty therefor, is not based upon §3913 Burns 1908, Acts 1901, p. 149, §1, providing that all express companies shall treat all consignors, including other express companies, equally, p. 16.</p> <p>6. Carriers.—Express Companies.—Discriminations.—Penalties.— Section 3916 Burns 1908, Acts 1901, p. 149, §4, gives to the State and to the injured consignor a right of action against an express company which discriminates against such consignor, p. 16.</p> <p>7. Pleading.— Complainl.— Express Companies.— Failure to Deliver Paclcage.—A complaint by the State against an express company, alleging that such company failed to deliver a prepaid package to the consignee who lived within the city of Indianapolis—a city of more than 2,500 inhabitants—and more than one mile from Monument Place, but delivered such package to a delivery company which compelled the consignee to pay for such delivery, and demanding a penalty therefor, does not state any cause of action, under §5405o Burns 1905, Acts 1905, p. 83, §14, providing for penalties against unjust discrimination, pp. 17,18.</p> <p>8. Carriers.— Express Companies.— ZJnj-ust Discriminations.— Question for the Jury.—What is an unreasonable preference, or an unjust discrimination, is a question for the jury. p. 17.</p>

Prom Cass Circuit Court; Joseph M. Baht, Special Judge. Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. (See same case on former appeal—165 Ind. 537.) From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from the Appellate Court under §1397 Burns, 1908, Acts 1901, p. 565, §13 (see 43 Ind. App. 316). Transferred to the Appellate Court. (Transferred again to the-Supreme Court [see 44 Ind.

<p>Prom Superior Court of Marion County (71,998) ; Vinson Garter, Judge.</p> <p>Action by The State of Indiana, on the relation of Elliott R. Hooten, as Prosecuting Attorney, against the Western Union Telegraph Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading.—Complaint.—Theory.—Sow Determined.—Appeal.— The Supreme Court, in determining the theory of a ease, will consider the briefs, the entire record, the theory upon which the case was tried, and the general scope of the pleadings, p. 31.</p> <p>2. Pleading.— Complaint. —Conspiracy.— Trusts.— A complaint alleging that defendants conspired to refuse to sell to the plaintiff any plumbing materials, to his damage, and demanding a judgment for attorneys’ fees and damages, and praying an injunction, is based upon the anti-trust act of 1899 (Acts 1899, p. 257, §§1-4, §§3884-3887 Burns 1908). p. 32.</p> <p>3. Constitutional Law.—Statutes.—Title Broader than Purview. —An act is not invalid under the constitutional provision (Art. 4, §19), requiring that the subject-matter of an act shall be expressed in the title, because the title is more comprehensive than the purview of the act. pp. 33, 40,43.</p> <p>4. Constitutional Law.—Anti-Trust Statutes.—Contracts.—Intention.—Although the title to the anti-trust act of 1899 (Acts 1899, p. 257) declares the subject-matter of the statute to be the prohibition of contracts or combinations “intended to prevent free competition in business,” the body of the act, in defining the contracts and combinations prohibited, need not designate them as “intended to prevent free competition in business,” the necessary effect thereof being to prevent such competition, pp, 34,39, 41,42.</p> <p>5. Ckiminal Law.— Violation of Statute.—Intent.—Where the offense committed consists in doing a certain thing prohibited by statute, the only intent necessary to be shown, in order to convict, is the intent to do the prohibited thing, p. 34.</p> <p>6. Constitutional Law.— Contracts.—- Regulation of.— Police Power.— Under the police power, for the protection of health, morals, safety and general welfare, the states may restrain the general right of contract, p. 34,</p> <p>7. Conspiracy.—Results of Acts—Intention.—An intention to accomplish certain results will be presumed where such results certainly follow from the acts done. pp. 34, 36,42.</p> <p>8. Contracts.—Object.—Legality of.—The legality of the object of a conspiracy is determined regardless of the intent with which it is performed, p. 34.</p> <p>9. Contracts.—Proof of.—At the common law proof of a combination was sufficient, in conspiracy cases, without proof of any overt act, the real question being whether the combination had an injurious tendency, and not whether the intent was evil. p. 35.</p> <p>10. Constitutional Law.— Statutes.— Title.—Anti-Trust.—Intention.—The title of the anti-trust act of 1899 (Acts 1899, p. 257), prohibiting contracts and combinations in restraint of trade, would be sufficient if the clause “intended to prevent free competition in business” were omitted, the suppression of competition being the necessary consequence of such contracts and combinations. p. 35.</p> <p>11. Contracts.—Whether in Restraint of Trade.—Question for Court.—Whether a contract is in restraint of trade is a question for the court, p. 35.</p> <p>12. Constitutional Law.'—Statutes.—Declaratory of Common Law. —Intent.—The anti-trust statute (Acts 1899, p. 257, §§3884-3888 Burns 1908), being declaratory of-the common law, and adding civil and criminal penalties thereto, is not invalid for its failure to specify that the prohibited contracts must be intended to prevent competition, where their effect must be to prevent competition. p. 35.</p> <p>13. Constitutional Law.— Statutes.— Declaratory.— Self-executing.-—Constitutional provisions, or statutes, which are declaratory of the common law, are self-executing, id. 36.</p> <p>14. Constitutional Law.—Statutes.—Anti-Trust.—Public Policy. —The anti-trust act of 1899 (Acts 1899, p. 257,*§§3884-3888 Burns 1908) prohibiting the making of contracts or combinations in restraint of competition, cannot be held invalid because of inexpediency, or because it is unwise, p. 36.</p> <p>15. Commerce.—■ Contracts.—• Intention.— Restraints on Competition.—The courts will conclusively presume that it was the intention of parties to prevent competition, where the contracts executed must necessarily have that effect, p. 36.</p> <p>16. Commerce.'—Contracts.—Suppression of Competition.—Public Policy—Police Power.—Contracts which have a tendency 'to suppress competition are contrary to public policy and are subject to public control under the police power, pp. 37, 43,48.</p> <p>17. Conspiracy.—Criminal.—Civil.—At the common law conspiracies in restraint of competition were indictable, and a cause of action arose in favor of those injured thereby, p. 39.</p> <p>18. Constitutional Law.—Statutes.—Title.—It is requisite only that the subject-matter of a statute be expressed in the title, incidental matters connected therewith, being unnecessary therein, p. 39.</p> <p>19. Constitutional Law.—Anti-Trust Stattites.—Intent.—In the passage of the anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908) it will be presumed that the legislature had in mind the legal character of the prohibited contracts and combinations, and the legal presumptions of suppressing competition arising therefrom, p. 40.</p> <p>20. Constitutional Law.—Statutes.—Title.—Penalties.—An act which omits to mention penalties in the title is not invalid because penalties are provided for in the purview thereof, p. 42.</p> <p>21. Constitutional Law.—Anti-Trust Statutes.—Due Process of La/io.—The anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908), prohibiting contracts and combinations in restraint of trade, is not in violation of the federal Constitution guaranteeing due process of law, since such provision does not impair the police powers of the states, p. 43.</p> <p>22. Constitutional Law.—Confiscation.—Anti-Trust Statutes.— Equal Protection of Laws.—Class Legislation.-—The anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908), prohibiting contracts and combinations in restraint of trade, does not authorize the confiscation of property, does not deny the equal protection of the laws, nor does it constitute class legislation, p. 44.</p> <p>23. Constitutional Law.—Regulation of Duties.—Police Power.— The states, under the police power, may regulate the relative rights and duties of persons, individual and corporate, p. 44.</p> <p>24. Constitutional Law.—Anti-Trust Statutes.—Equal Protection. —The anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908), prohibiting contracts and combinations in restraint of trade, does not deny the equal protection of the laws. p. 45.</p> <p>25. Contracts.—Rot to Engage in Business.—Monopolies.—Contracts between a vendor and a vendee that the vendor shall not again engage, as the vendee’s competitor, in the business, under certain restrictions, are lawful, p. 47.</p> <p>26. Commerce, — Recessities. — Staples. —■ Plumbers’ Supplies. — Plumbers’ supplies are staple commodities and constitute a necessity of life. p. 49.</p> <p>27. .Constitutional Law.—Anti-Trust Statutes.—Natural Rights. —Equal Privileges.—The anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908), prohibiting contracts and combinations in restraint of trade, does not deprive persons of their natural rights, nor grant unequal privileges, p. 49.</p> <p>28. Constitutional Law.— Anti-Trust Statutes.— Classes.— The anti-trust act of 1899 (Acts 189.9, p. 257, §§3884-3888 Burns 1908), prohibiting contracts or combinations for preventing competition in articles used by “any mechanic, artisan or dealer,” cannot be questioned by a wholesaler on the ground that it does not include the “consumer.” p. 50.</p> <p>29. Constitutional Law.—Exorbitant Penalties.—Prevention of Resort to Courts.—The anti-trust act of 1899 (Acts 1899, p. 257, §§3884-3888 Burns 1908), prohibiting contracts and combinations in restraint of trade, is not invalid on the ground that the penalties are so severe that parties will not resort to the courts for the determination of their rights, p. 50.</p> <p>30. Appeal.—Weighing Evidence.—The Supreme Court will not weigh conflicting evidence, p. 51.</p>

From Crawford Circuit Court; William C. Viz, Judge. Application by John Dicus for license to retail-intoxicating liquors, against which Martin J. Brown and others remonstrate. From a judgment for the applicant, remonstrants appeal.

Prom Clark Circuit Court; Harry G. Montgomery, Judge. Action by Mary Inzer, as administratrix of the estate of John A. Inzer, deceased, against the American Car and Foundry Company. Prom a judgment on a verdict for plaintiff for $2,500, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

<p>Schools.—Transportiny Children to.—Funds.—Mandamus.—Complaint.—In order to mandate a school trustee to provide transportation for pupils to the schools, it is necessary to show that he has funds available for such purpose.</p>

Prom Superor Court of Allen County; Samuel E. Cook, Special Judge. Action by the First National Bank of Port Wayne, Indiana, against Lewis C. Hunter and others. Prom a judgment for plaintiff, and for cross-defendant Citizens Trust Company, Hunter and others appeal.

<p>1. Statutes.—Construction.—General, Following Specific, Words. —Ejusdem Generis.—Where general words follow specific words in a statute, such general words are restricted to the classes or kinds described by the specific words, p. 80.</p> <p>2. Statutes. — Construction. — Enticing Girls. — Immorality. — Under §2356 Burns 1908, Acts 1907, p. 102, providing that any male person, over seventeen years of age, who shall entice a girl, under eighteen, into “a house of prostitution, assignation, saloon or wine-room where intoxicating liquors are sold, or any other place for vicious or immoral purposes,” shall be guilty of a felony, if a conviction is asked for enticing a girl into some “other place” it must be shown to be like “a house of prostitution, assignation, saloon or wine-room where intoxicating liquors are sold.” p. 80.</p> <p>3. Indictment and Information.—Enticing Girls.—Place.—Under §2356 Burns 1908, Acts 1907, p. 102, providing that it shall constitute a felony for a male person over seventeen years old to entice a girl under eighteen years old into “a house of prostitution, assignation, saloon or wine-room where intoxicating liquors are sold, or any other place for vicious or immoral purposes,” an affidavit charging that defendant enticed the prosecuting witness “into a certain house situated at No. 202 East Broadway street in the City of Vincennes,” for vicious purposes, is bad, since such place is not shown to be a house of prostitution, assignation, or a saloon, or like any of them. p. 80.</p> <p>4. Statutes.—Construction.—Enticing Girls.—Purpose.—Evidence. —Under §2356 Burns 1908, Acts 1907, p. 102, making it unlawful for a male person, over seventeen years of age to entice a girl under eighteen into “a house of prostitution, assignation, saloon or wine-room where intoxicating liquors are sold, or any other place for vicious or immoral purposes” the “immoral purpose” must accompany the enticement into any of the places, the mere entry into the specified places being prima facie proof thereof, while such purpose must be proved otherwise where the enticement occurred at some “other place.” p. 81.</p>

Prom Clay Circuit Court; Presley 0. Colliver, Judge. Action by John W. Gose against the Crawford & McCrimmon Company. Prom a judgment on a verdict for plaintiff for $345, defendant appeals. Transferred from Appellate Court (see 43 Ind. App. 373) under §1394 Burns 1908, cl. 1, Acts 1901, p. 565, §10.

Prom Cass Circuit Court; John S. hairy, Judge. Highway petition by M. A. Jordan and others, against which Elliott E. MeKaig and others remonstrate. Prom a judgment for petitioners, remonstrants appeal.

<p>Prom Dubois Circuit Court; E. A. Ely, Judge.</p> <p>Action by Prank Limbaek against the Southern Railway Company and another. Prom a judgment for plaintiff, defendants appeal.</p>

Prom Shelby Circuit Court; Will M. Sparlcs, Judge. Action by the Knight & Jillson Company against Arthur C. Castle and others. Prom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15 (see 42 Ind. App. 689).

<p>Prom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Suit by the Railroad Commission of Indiana against the Southern Indiana Railway Company and another. Prom a decree for plaintiff, defendants appeal.</p>

<p>1. Fornication.—Oommmon-Law Definition.—Fornication, at tlie common law, imported unlawful sexual intercourse between a married or single man, and an unmarried woman; and it was punishable only where the circumstances constituted it a misdemeanor. p. 135.</p> <p>2. Fornication.—Essentials.-—Statutes.—Fornication, as defined in §2353 Burns 1908, Acts 1905, p. 584, §457, imports the living together, as husband and wife, of a man and an unmarried woman, p. 136.</p> <p>3. Words and Phrases.—■ “Oohahit.”— Fornication.— The word “cohabit,” as used in the statute defining fornication (§2353 Burns 1908, Acts 1905, p. 584, §457), imports the living together of a man and woman, in the manner of husband and wife. p. 136.</p> <p>4. Fornication.—-Evidence.—Evidence showing that defendant indulged in two clandestine acts of intercourse with his servant girl does not sustain a conviction for fornication, p. 138.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Application by Andrew J. Burns for a liquor license. From a judgment denying the application, the applicant appeals,</p>

<p>1. Judgment.— Setting Aside.— Excusable Neglect.— Fraud.— Direct Attack.—A suit to set aside a judgment for fraud or excusable neglect constitutes a direct attack upon such judgment, p. 142.</p> <p>2. Pleading.—Complaint.-—Setting Aside Judgment.—Fraud.—Notice.—Record.—A complaint to set aside a judgment on the ground of fraud in procuring the process or the judgment sought to he set aside, need not set out what the record shows as to notice, p. 143.</p> <p>3. Pleading.— Complaint.— Setting Aside Judgment.— Fraud.— A paragraph of complaint alleging that the defendant in a foreclosure suit was a nonresident of the county in which the suit was brought, that no summons was served upon her, that the sheriff falsely made a return of service, that a guardian ad litem was appointed, such guardian filing an answer for her, does not show fraud upon the part of the plaintiff in such suit, or her attorney, nor constitute a sufficient charge of fraud, p. 143.</p> <p>4. Pbocess.—Return.’—Reliance Upon.—The court has a right to rely upon the sheriff’s return upon a summons, such return importing verity, p. 144.</p> <p>5. Pbocess.—False Return.—Action.-—Sheriffs.—An action lies on behalf of the injured party, against a sheriff who makes a false return, p. 144.</p> <p>6. Oeeicees.—Bonds.—Penalty.—Sheriffs.—The amount necessary for the penalty of a sheriff’s bond is a matter for the legislature, p. 144.</p> <p>7. Appeal.—'Weighing Evidence.—Setting Aside Judgment.—The Supreme Court will not weigh conflicting evidence in a suit to set aside a judgment, pp. 145,146.</p> <p>8. Pleading.—Complaint.—Paragraphs.-—Sustaining Demurrer to One.—Facts Provable Under Another.—False Process.—Frauds— Where one paragraph of a complaint to set aside a decree of foreclosure alleged that the plaintiff, knowing of the sheriff’s false return upon the summons, procured a decree to be entered, the sustaining of a demurrer to another paragraph alleging that the plaintiff in the foreclosure suit, and her attorneys procured such false return, and obtained a decreé founded thereon, is harmless, such facts being provable under the former paragraph, p. 145.</p>

<p>Prom Criminal Court of Marion County (36,256); William Irvin, Special Judge.</p> <p>Prosecution by The State of Indiana against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment of conviction, defendant appeals. Affirmed. (Appealed to United States Supreme Court, see — U. S. —.)</p>

<p>Prom Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Prosecution by The State of Indiana against Charles E. Barrett. Prom a judgment for defendant, the State appeals.</p>

<p>Prom Laporte Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Thomas J. McCoy against James D. Reid. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Intoxicating Liquors.— Wholesale.— License.— Cities.— The State has not enacted any law licensing wholesale liquor dealers, nor has it delegated the power to cities to license wholesalers, p. 195.</p> <p>2. Constitutional Law.—Avoidance of Decision On.—City Ordinances.—Where the validity of a city ordinance is involved, and the appeal may be determined upon other grounds, the validity of the ordinance will not be determined, p. 195.</p> <p>3. Pleading.—Complaint.—Unlawful Sales of Liquor.—Cities.— Ordinances.—In a prosecution by a city against defendant for selling intoxicating liquor in violation of a city ordinance, it is necessary to allege the consideration for such sale. p. 195.</p> <p>4. Sales.—Essentials.—The essentials of a sale are: (1) a mutual agreement, (2) competent parties, (3) a money consideration, and (4) a transfer of title, p. 195.</p> <p>5. Action.—Civil.—Cities.—Prosecution for Violation of Ordinance. —Intoxicating Liquors.—A prosecution by a city against defendant for the violation of an ordinance requiring a license to sell liquors, is a civil action, p. 196.</p>

<p>Prom Crawford Circuit Court; Christopher W. Cook. Judge.</p> <p>Action by The State of Indiana, on the relation of William L. Gregory, against Elwood G. Boyd. Prom a judgment for defendant, plaintiff appeals.</p>

Prom Superior Court of Marion County (74,275); James M. Leathers, Judge. Astion by The State of Indiana, on the relation of Peter Brown, against Oliver P. Ensley, as Treasurer of Marion County and ex-officio Treasurer of the City of Indianapolis., and another. Prom a judgment for plaintiff, defendants appeal.

Prom Howard Superior Court; Joseph Glaybaugh, Special Judge. Action by The State of Indiana, on the relation of Joseph B. Workman and another, against Harry Goldthait, as auditor of Grant county. Prom a judgment for defendant, plaintiff appeals.

<p>Prom Criminal Court of Marion County (37,007); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Thomas Carter. Prom a judgment of conviction, defendant appeals.</p>

<p>Prom Superior Court of Marion County (75,014) ; Vinson Carter, Judge.</p> <p>Action by The State of Indiana, on the relation of the Cleveland, Cincinnati, Chicago and St. Lonis Railway Company, against Cyrus J. Clark, as Auditor of Marion County, and another (Albert Sahm, successor to said Clark, afterward substituted). Prom a judgment for plaintiff, defendants appeal.</p>

<p>Prom Adams Circuit Court; H. G. Fox, Special Judge.</p> <p>Drainage proceeding by Christian Amaeher and another, against which Roswell 0. Johnson remonstrates. Prom a judgment for petitioners, remonstrant appeals.</p>

<p>1. Mandamus.—Alternative Writ.—Sufficiency.—Officers.—An alternative writ of mandate against an officer, to be sufficient on demurrer, must show that it is the officer’s duty, and that he has the power to perform the act sought to be enforced, p. 253.</p> <p>2. Mandamus.—Officers.—Expenditure of Money.—A petition in mandamus to compel an officer, to do some act requiring the expenditure of money or the incurring of an indebtedness, must show that there is money which may be used, or that the officer is authorized to incur the indebtedness, p. 253.</p> <p>S. Townships.— Expenditures.— Appropriations.— Under §§8085a-80851 Burns 1901, Acts 1899, p. 150, and Acts 1901, p. 415, the trustees of the civil and school townships have no right to expend any money unless the same has been appropriated for such purposes .by the advisory boards, p.253.</p> <p>4. Mandamus.—Petition.—Transporting Pupils to School.—Money. —A petition in mandamus to compel a trustee to transport relators’ school children to school, alleging that the trustee has “a sufficient sum of money in his possession and control appropriated by the township advisory board * * * to pay the necessary expense of transportating relators’ children to and from” said school, is bad, the allegation stating a mere conclusion. p. 253.</p> <p>5. Schools.—Transportation of Pupils.—Duty of Trustees.—Under §6423 Bums 190S, Acts 1907, p. 444, §2, it is the duty of township trustees to transport to school all pupils living at a greater distance than two miles from the school to which they are attached, and all pupils between the ages of six and twelve years who live between one and two miles from such school, p. 254.</p> <p>6. Makdamus.—Petition.-—Transporting Pupils.—A petition in mandamus to compel a township trustee to transport relators’ children to school must allege that such trustee had in his possession, appropriated for such purpose, money enough to transport all of the pupils entitled thereto in his township, p. 254.</p>

Prom St. Joseph Circuit Court; Walter A. Funk, Judge. Application by Park B. Rhoades for license to retail intoxicating liquors, against which Thomas C. Barnes and another remonstrate. Prom a judgment for applicant, remonstrants appeal.

<p>1. Highways.—On Section Lines Between Adjoining Owners.—An order establishing a highway' on the half-section line dividing the lands of two adjoining proprietors does not necessarily locate such highway upon the true half-section line, where such line does not constitute the boundary line between such proprietors, p. 259.</p> <p>2. Highways.—Location.—Boundary Lines.—Where an order was made locating a highway upon the half-section line dividing the lands of two adjoining proprietors, and the viewers laid out and located the highway along the partition fence dividing such lands, and each of such proprietors set his fence back the requisite distance, the supervisor constructing and opening such road for travel, one of such proprietors, upon ascertaining that the true half-section line was not on such dividing line has no right to set his fence within the boundary of such road as so established. p. 260.</p> <p>6. Estoppel.—--Oondiiet.—Acquiescence.—Highways.—A party by acquiescing in a boundary line for twenty years, or by his conduct in fixing such line, may be estopped from asserting the true line. p. 260.</p> <p>4. Criminal Law.—Obstructing Highway.—Determining True Line of Higlmay.—Where a highway is regularly opened for public travel and a person is prosecuted for the obstruction thereof, he cannot, as a defense, show that the road was not located upon the exact line called for by the order establishing such highway, pp. 260,262.</p> <p>5. Highways.—• Wrong Location —Remedy.—■ Where a highway was laid out by the highway officers upon the wrong route, the remedy for an aggrieved person is to apply for a correction of the mistake, p. 261.</p> <p>6. Evidence.—Official Survey.—Preliminary Proof.—Before a pretended official survey and the record thereof can be admitted in evidence it is necessary to show that the statutory requirements as to notice to the interested parties were complied with. p. 262.</p> <p>7. Appeal.—Criminal Law.—Bills of Exceptions.—Instructions.— In an appeal, In a criminal case, instructions contained in tlie original bill of exceptions containing the evidence, constitute no part thereof, and cannot be considered for any purpose, pp. 202, 263,267.</p> <p>8. Appeal.'—Certifying Original Records.-—Statutes.—Without express statutory warrant, the clerk of a subordinate court has no right to certify, for use on appeal, any original record or paper, pp. 263,268.</p> <p>9. Appeal.— Bills of Exceptions.— Original.— Precipe.— Criminal Law.—On an appeal in a criminal case, the precipe, under §657 Burns 1908, Acts 1897, p. 244, was required to call for the certifying of an original bill of. exceptions containing the evidence or an original bill contained in the transcript could not be considered, §667 Burns 1908, Acts 1903, p. 338, §7, providing that such original bill whether called for by precipe, or otherwise, shall be considered, applying only to civil procedure; but, under §2165 Burns 1908, Acts 1905, pp. 584, 648, §289, an original bill contained in the transcript must be considered, whether the original or merely a transcript thereof is called for by the precipe. p. 260.</p>

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Application by James C. Rose for license to retail intoxicating liquors, against which Marvin J. Arford and others remonstrate. Prom a judgment for remonstrants, the applicant appeals.

From Marion Circuit Court (15,583) ; Henry Clay Allen, Judge.' Application by Joseph R. Morgan and others for the probate of the will of Assenath Showalter, deceased, to which Yiola IToffbauer objects. From- a judgment for plaintiffs, defendant appeals.

Prom Wabash Circuit Court; A. H. Plummer, Judge. Drainage petition by Prank Ireland and others, against which William Huffman and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

<p>1. Appeal.— Parties.— Officers.— Totems.— Ordinances.— Declaring Void.—Water-Works.—Electric Lights.•—In a suit by taxpayers against a town, tbe officers thereof, and a water and light company, to have declared void certain ordinances granting to such, company a water and light franchise, such town officers are not necessary parties to the suit, nor to a vacation appeal from a judgment for defendants therein, p. 282.</p> <p>2. Statutes.—Construction.—In Pari Materia.—In determining the meaning of a particular statute, all statutes on the subject will be considered, p. 285.</p> <p>3. Municipal Cobpobations.— Towns.— Contracts.—Water-Works. —Electric Lights.— Ordinances.— Fifty-7ear Franchises.—■ Statutes.—Section 8938 Burns 1908, Acts 1905, pp. 219, 395, §253, providing that any town may, by contract “duly approved by ordinance * * * grant to any person or corporation the right” to establish a water-works, or an electric light plant, the terms for supplying such water or light, as well as the license fee to be paid to the town, to be fixed by the contract, and §8939 Burns 1908, Acts 1905, pp. 219, 390, §254, providing that any town may contract with any person or corporation to furnish such town and its inhabitants with water or light, and prescribe the terms and conditions thereof for the town and its inhabitants, “Provided, that no such contract shall be entered into by any * * * town for furnishing such * * * town and its inhabitants with water, * * * or light, upon or along the streets of suchr * * * town for a term longer than twenty-five years,” do not prohibit a town from granting a fifty-year franchise to use its streets for supplying water and light, p. 285.</p> <p>4. Municipal Coepoeations.— Ordinances.— Towns.-— Contracts.— ’Water-Works.—Electric Lights.—Fixing Bates.—A town ordinance, contractual in character, granting a franchise to use the municipal streets for the purpose of supplying water and light, which provides regulations with regard to the public safety and convenience in connection with the construction arid maintenance of the worts, and fixes the maximum rates to be charged, is not void for failure to prescribe the terms and conditions of service, p. 287.</p>

Prom Clay Circuit Court; J ohn M. Ratvley, Judge. Action by Michael Pomatto against the Bruiletts Creek Coal Company. Prom a judgment on a verdict for plaintiff for $5,000, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

<p>Prom Jay Circuit Court; John F. LaFollette, Judge.</p> <p>Action by Martin L. Eupel and others against the Ohio Oil Company and others. Prom a judgment for defendants, plaintiffs appeal. Transferred to Appellate Court. (See — Ind. App. —.)</p>

<p>1. Pleading.— Complaint.— Allegations.— Statutory Cause of Action.—-One claiming rights under a statute must, in his complaint, allege facts clearly bringing him within the provisions of such statute, p. 306.</p> <p>2. Mandamus.—Elements.—-Mandamus lies to compel an officer to perform a clear, imperative, legal duty, where no other adequate legal remedy exists, p. 306.</p> <p>3. Mandamus.—Compelling Board of Trustees of Town to Act.-— Jurisdiction.—Complaint.—A complaint to mandate the board of trustees of a town to act upon a petition pending before it, must show that such board has jurisdiction to act and that it is its duty to act. p. 307.</p> <p>4. Mandamus.—Complaint.—Towns.—Disannexation of Territory. —Notice.—Newspapers.—Evidence.—A complaint in mandamus alleging that the relator filed with the board of trustees of defendant town a petition for the disannexation of territory from such town, and that he published a notice of the filing thereof in the “Windfall Herald,” does not show that such town board had jurisdiction, since the court cannot know judicially nor will it be presumed that the “Windfall Herald” was such a publication as the statute requires, p. 307.</p> <p>5. Municipal Cokpokations.—Towns.—Trustees.—Continuing Dis-annexation Proceedings.-—A town board has a discretionary right, in good faith, to postpone action for a reasonable time on a petition for the disannexation of territory, p. 309.</p>

Prom Blackford Circuit Court; Charles E. Sturgis, Judge. Application by John W. Lee for license to retail intoxicating’ liquors, against which C. Q. Shull and others remonstrate. Prom a judgment for remonstrants, the applicant appeals.

<p>1. Wills.— Attestation.— “Competent Witnesses.”—Under §3132 Burns 1908, §2570 R. S. 1881, providing that all wills must be attested by two or more “competent witnesses,” a witness is “competent,” if, at the time of such attestation, he is competent to testify in court to the facts which he attests, p. 315.</p> <p>2. Wills.—Attestation by Executor.—Competency.—A will attested by the named executor, who is not a beneficiary, together with another competent person, is valid, p. 315.</p> <p>3. Wills.—Witnesses.—Subsequent Incompetency.—A. will attested by two competent witnesses is valid, though .one of such witnesses subsequently becomes incompetent, p. 315.</p>

Prom Noble Circuit Court; Joseph W. Adair, Judge. Application by Casper B. Yetter for license to’ retail intoxicating liquors, against which D. H. Kime and others remonstrate. Prom a judgment for the applicant, remonstrants appeal.

Prom Noble Circuit Court; Samuel E. Gooh, Special Judge. Application by Sampson J. Miller for license to retail intoxicating liquors, against which Reuben Resler and others remonstrate. Prom a judgment for remonstrators, the applicant appeals.

From Madison Circuit Court; John F. McClure, Judge. Application by Dick Rector for license to retail intoxicating liquors, against whicb Charles C. Druley and others remonstrate. Prom a judgment for the remonstrants, the applicant appeals.

<p>Prom Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Suit by Alzora N. Smith and others against William H. McReynolds and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>From Lake Superior Court; John A. Gavit, Special Judge.</p> <p>Action by George B. Quigg, Jr., and others, against John O’Malley. From a judgment for plaintiffs, defendant appeals.</p>

Prom Putnam Circuit Court; John M. Rawley, Judge. Suit by Arthur C. Loomis and another against Bernard Korbly, as receiver for the Collier Bridge Company, and another. Prom a judgment for plaintiffs, defendants appeal.

<p>Prom Howard Circuit Court; Leroy B. Nash, Judge.</p> <p>Prosecution by The State of Indiana against Jacob Dotterer. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Pleading.—Complaint.—Claims Against Decedents’ Estates.—• Bpeeificness.—A claim against a decedent’s estate, sufficiently succinct and definite to exhibit a prima facie right to recover, is sufficiently specific (§2828 Burns .1908, §2310 R. S. 1881). pp. 373, 380.</p> <p>2. Pleading.—Complaint.—Claims Against Decedents’ Estates — A claim by a husband against the estate of his wife, showing that she had received certain sums for his use and benefit, and that he had paid, at her request, certain sums, and detailing the agreements between them relative thereto, is sufficient on demurrer, p. 374.</p> <p>3. Appeal.—Overruling Motion to Make More Specific.—When Harmless.—To constitute reversible error, the overruling of a motion to make more specific must be shown affirmatively to have injured the appellant, p. 374.</p> <p>4. Tkial.—Special Findings.—Ownership of Bank Deposits.—Decedents’ Estates.—Special findings, in a claim by a husband against the estate of his wife, that money for a bank account in her name, marked “Special,” was deposited by him out of his money, and that she deposited in her name as “Agent,” without his knowledge, another sum, using his money, that she paid on her debts out of such “Agent” account $050, and that the husband subscribed and paid for certain shares of building and loan stock, having the same issued in her name, such deposits and stock being placed in her name to prevent any possible claimant against him from obtaining same, support conclusions of law that such property belonged to the husband, pp. 375, 381.</p> <p>5. Contracts.— Husband and Wife.— Disabilities.— A married woman has power to contract generally, but is forbidden to become surety, or, by herself, to make any contract for the sale or encumbrance of her real estate, p. 378.</p> <p>6. Husband and Wipe.—Contracts.—Burden of Proof.—A wife may contract with her husband, but on account of his presumed dominant influence, he is required to show clearly that his contract was fair to her. p. 378.</p> <p>7. Appeal.—Weighing Evidence.—The Supreme Court will not weigh conflicting evidence, p. 379.</p> <p>8. Evidence.—Declarations of Decedent in Absence of Claimant.— The declarations of a deceased wife, made in the absence of her husband, in reference to the title to a bank account in her name, are inadmissible as evidence-in-chief on behalf of her estate on the trial of her husband’s claim to such deposit, p. 379.</p> <p>9. Evidence.—Repetition of.—Discretion of Court.—Whether a witness shall be compelled to repeat his testimony is largely discretionary with the trial court, p. 379.</p> <p>10. Trial.—Venire de Novo.—Special Findings.—A motion for a venire de novo applies to special findings only where they are so uncertain, ambiguous or defective that no judgment can be rendered thereon, p. 380.</p>

<p>From Hendricks Circuit Court; T. J. Gofer, Special Judge.</p> <p>Condemnation proceedings by the Indianapolis and "Western Railway Company against Rebecca Branson and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Prom Criminal Court of Marion County (37,342); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Eugene P. McDonald. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Appeal.—Briefs.—Bills of Exceptions.—Presentation to Judge. —Filing.—Appellant’s brief is not required to set out the complaint, where no question is made thereon; and a bill of exceptions presented to the judge within the time allowed, but signed and filed later, is in the record.' p. 404.</p> <p>2. Appeal.—Bills of Exceptions.—Presentation to Judge.—Eoio Shown.—The date of the presentation of a bill of exceptions can be shown by a statement in the bill itself, but not by a statement on the margin of such bill. p. 404.</p> <p>3. Tbial. — Instructions. — Damages. — Interurhan Railroads. — Rights of Way.—Condemnation.—An instruction, in an interurban railroad right of way condemnation ease, that the landowner is entitled to damages for “the increased danger, if any, that may be incurred, and any other facts or things, if shown by the evidence, that may be either annoying or hurtful,” is erroneous, such damages being speculative, p. 405.</p> <p>4. Appeal.—Right Result.—Unliquidated Damages.—The Supreme Court cannot determine that the right result was reached in a damage case, where' an erroneous instruction was given, and where the evidence was in conflict, p. 408.</p>

Prom Superior Court of Marion County (69,197); Vinson Garter, Judge. Suit by the Vandalia Railroad Company against Cyrus J. Clark, as auditor of Marion county, and others. Prom a decree for plaintiff, defendants Clark and a part of the others appeal.

Prom Lake Circuit Court; Willis G. McMahan, Judge. Action by John Yedinak, by Ms next friend, against the Inland Steel Company. Prom a judgment for the plaintiff for $2,000, defendant appeals. Transferred from the Appellate Court (see 42 Ind. App. 629) under §1397 Burns 1908, Acts 1901, p. 565, §13.

Prom Owen Circuit Court; Joseph W. Williams, Judge. Suit by Mary E. Truelove and others against Emeline Truelove and others. Prom the decree entered, plaintiffs appeal. Transferred from Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15 (see 43 Ind. 734),

Prom Marion Circuit Court (C. D. 8,384). James A. Pritchard, Judge pro tern. Claim by Philip M. Hildebrand against Collie E. Kinney, as administrator of the estate of Jacob S. Hildebrand, deceased. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

Prom Wabash Circuit Court; A. PL. Plummer, Judge. Application by George P. MeClanahan for license to retail liquors, against which Edward Breeding and others remonstrate. Prom a judgment for remonstrants, the applicant appeals.

<p>Prom Hendricks Circuit Court; John C. Robinson, Special Judge.</p> <p>Action by Robert T. Hollowell against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Marion Circuit Court (16,307); Henry Clay Allen, Judge. Action by The State of Indiana, on the relation of James H. Barnett and others, against the City of Indianapolis and others. From a judgment for the plaintiff, defendants appeal.

<p>From Marion Circuit Court (12,644) ; Henry Clay Allen, Judge.</p> <p>Action by Eunice J. Cobler, as administratrix of the estate of Marshall F. Cobler, deceased, against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Floyd Circuit Court; William C. TJtz, Judge.</p> <p>Suit by tbe City of New Albany against the New Albany Street Railroad Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Dkains.— Mill-Dams.— Eminent Domam— Public Utility.— Where a mill-dam was erected upon a site condemned for the purpose of operating “a gristmill” for toll, and the mill has since been operated as a commercial mill and not as “a gristmill” for toll, it has ceased to be of “public-utility” and the State, in the exercise of its power of eminent domain, may authorize the removal of such dam, upon payment of the damages, in order to provide proper drainage for the district in which the dam is located. Montgomery, J., dissenting, p. 497.</p> <p>2. Appeal.-—Weighing Evidence.—The Supreme Court will not weigh conflicting evidence, p. 501.</p> <p>3. Evidence.—Reports of Drainage Commissioners.—Drams.— Damages.—In a drainage proceeding in the circuit court, the report of the drainage commissioners is admissible in evidence (§6151 Burns 1908, Acts 1907, p. 508, §17). p. 501.</p> <p>4. Coukts.— Circuit.— Jurisdiction.— Drains.— The circuit courts have original jurisdiction of the subject-matter of a drainage proceeding filed therein, p. 501.</p> <p>5. Appeal.—Briefs.—The appellant’s brief must show that the rulings complained of are properly presented by the record. - p. 501.</p>

From Superior Court of Marion County (74,432) ; Lawson M. Harvey, Judge. Action by The State of Indiana, on the relation of John C. Smith, against Charles C. Lyle, as township trustee of Lawrence school township of Marion county. From a judgment for plaintiff, defendant appeals.

<p>1. Appeal.—Bight of.—The right of appeal is statutory, p. 511.</p> <p>2. Appeal.—Bight of.—Special Proceedings.—Street Assessments. —Proceedings for the assessment of costs and damages for street improvements are special, and no appeal lies from orders made therein except where the statute expressly grants such right, p. 511.</p> <p>3. Appeal.—Street Assessments.—Statutes.-—Section 8716 Burns 1908, Acts 1905, pp. 219, 292, §111, providing for making street assessments, for reassessments in certain cases, and that the report of the appraisers making the reassessment “shall be final and conclusive” on all parties thereto, grants no right of appeal, p. 512.</p> <p>4. Appeal.—Street Assessments.—Judicial Action.—Costs.—In a street assessment proceeding, under §8716 Burns 1908, Acts 1905, pp. 219, 292, §111, the circuit or superior court, on appeal, exercises no judicial action, except in rendering a judgment for costs, and such action, being a mere incident to the proceeding, cannot be appealed from. p. 512.</p>

From Superior Court of Madison County; Cassius M. Greenlee, Judge. Action by Tempest Morrey, as administratrix of the estate of Harry Morrey, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $7,000, defendant appeals.

Prom Superior Court of Marion County (70,8Q6) ; Lawson M. Harvey, Judge pro tem. Action by Hattie Gossett, as administratrix of the estate of Robert A. Gossett, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and another. Prom a judgment on a verdict for plaintiff for $8,875, defendant appeals.

Prom St. Joseph Circuit Court; Walter A. Funk, Judge. Action by Charles A. Johnson against the Lake Shore and Michigan Southern Railway Company. Prom a judgment on a verdict for plaintiff for $15,000, defendant appeals. Transferred from Appellate Court under §1399 Burns 1908, Acts 1901, p. 565, §15 (see 42 Ind. App. 687).

Prom Blackford Circuit Court; Charles E. Sturgis, Judge. Application by Arthur Guillaume for license to retail intoxicating liquors, against which William H. Honey and others remonstrate. Prom a judgment for the applicant, Honey appeals.

<p>1. Words and Phrases.—“Verified.”—Statutes.—Banks.—Reports. —The word “verified,” as used in §2994e Burns 1905, Acts 1905, p. 182, §5, providing that every' private bank doing business under the state banking laws shall make a report, which shall be “verified,” imports that such report shall be sworn to. p. 560.</p> <p>2. Indictment and Information.—Subornation of Perjury.—Bank Report.—An affidavit charging defendant with subornation of perjury in the making of a bank report to the Auditor of State, as required by §2994e Burns 1905, Acts 1905, p. 182, §5, providing that “every bank, partnership, firm or individual transacting a banking business under the provisions of this act” shall make a report, must allege that the bank for which such report was made was doing business under the provisions of such act at the tíme of the making of such report, p. 560.</p> <p>8.- Indictment and Information.— Subornation of Perjury.— Knowledge.—An indictment for subornation of perjury must allege that defendant, as well as the perjurer, knew that the false oath taken was wilfully, corruptly and knowingly taken, p. 561.</p>

Prom Cass Circuit Court; Joseph M. Babb, Special Judge. Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment on a verdict for $4,000, defendant appeals. (Transferred from the Appellate Court—43 Ind. App. 316. Transferred back to the Appellate Court—172 Ind. 19. Retransferred to the Supreme Court—44 Ind. App. 62.) Retransferred to the Appellate Court. (Retransferred to the Supreme Court — 45 Ind. App. —.

<p>1. Constitutional Law.— Statutes.— Repeal.-—Amendment After Repeal.—A valid act passed in 1895 covering the same subject-matter as statutes passed in 1889 and 1893 repealed such statutes; and an amendment of such statute of 1889, passed in 1897, is invalid. p. 580.</p> <p>2. Constitutional Law.— Statutes.— Enrolled, Acts.— Presumptions.—Evidence.—An enrolled act duly signed by the presiding officers of the two houses of the legislature is conclusive evidence of its passage in conformity to the requirements of the Constitution, and its validity cannot be attacked by showing the- journals of the houses, or by other extrinsic evidence, p. 580.</p> <p>3. Statutes.—Publications.—Presumptions.—The publication of an act in the “Acts” of the legislature constitutes prima facie evidence that such act is a law of the State, p. 581.</p> <p>4. Words and Phrases.— “Missing.”— Statutes.— Certificate of Secretary of State.—The word “missing,” as used in the certificate of the Secretary of State of the State of Indiana showing that Chapter CXLVI of the Acts of 1895 (id. 412) “was compared with the engrossed bill, the enrolled bill being missing,” imports that there had been an enrolled act, but that it was lost. p. 581.</p> <p>5. Evidence.— Judicial Notice.— Statutes.— Enrolled Acts.— The courts take judicial notice of the statutory law of Indiana, and that the enrolled act of 1895 (Acts 1895, pp. 359-362, Chapter CXLVI) is not on file in the office of the Secretary of State, p. 582.</p> <p>6. Evidence.— Lost Statute.— How Determined.— In determining the contents of a lost statute the courts will look to all available sources to ascertain the scope and meaning of such statute, p. 585.</p> <p>7. Constitutional Law.—Statutes.—Veto Power.—How Exercised. —To be effective, a veto by the Governor must be sent to the house wherein the bill originated in time for each house to reconsider the same and pass it over such veto, if desired, p. 587.</p> <p>8. Constitutional Law.—Acts.—Piling by Governor with Secretary of State.—PaiLire of.—The failure of the Governor to veto a bill or to file it with the Secretary of State does not prevent its becoming a law. p. 588.</p> <p>9. Constitutional Law.— Veto.— How Shown.— Evidence.— The veto of a house bill can be shown only by the journal of the house, oral testimony of a veto being inadmissible, p. 588.</p> <p>10. Constitutional Law.—Veto.—Entering on House Journal.—• The Constitution (Art. 5, §14) imposes upon the proper house of the legislature, and not on its minute clerk, the duty of spreading of record the Governor’s reasons for his veto. p. 589.</p> <p>11. Statutes.—Repeal.—Statehouse Custodian.—The act of 1895, providing that a board consisting of the Governor, Secretary of State and Auditor of State shall appoint the Custodian of Public Buildings and Property, is in force, and repealed the act of 1889 (Acts 1889, p. 114) and its amendment of 1893 (Acts 1893, p. 137), vesting such appointment in the Governor, the amendment of 1897 (Acts 1897, p. 118) being void. p. 590.</p>

<p>1. Pleading.—Complaint.—Deeds in Trust for Grantor.—Paragraphs of a complaint to subject certain property held in trust for the grantor to the payment of his debts are sufficient under §7480 Burns 1908, §4921 R. S. 1881, providing that “all * * * transfers or assignments, verbal or written, of goods or things in action, made in trust for the use of the person making the same, shall be void as against creditors, existing or subsequent, of such person.” p. 593.</p> <p>2. Pleading.— Complaint.— Supplementary Proceedings.— Execution.—To What County Issued.-—A complaint, in a proceeding . supplemental to execution, alleging that the execution issued to the sheriff of the county where the defendant “resides,” is sufficient, the statute (§858 Burns 1908, §815 R. S. 1881) providing that the execution shall issue to the county where defendant “resides.” p. 593.</p> <p>3. Pleading.—■ Complaint.-—- Supplementary Proceedings.— Setting Aside Fraudulent Transfers.—A complaint alleging that “after the time” of the alleged transfer of property, defendant did not have sufficient property with which to pay his debts, shows that such transfer rendered him unable to pay his debts, p. 594.</p> <p>4. Pleading.—Complaint.—Subjecting Trust Property to Payment of Debts.—Property Subject to Execution.—A complaint to subject property held in trust for defendant to the payment of his debts does not require an allegation that the defendant after the time of the transfer in trust had no remaining property with which to pay his debts, p. 594.</p> <p>5. Pleading.— Complaint.— Paragraphs.— Rulings.— When Harmless.—Interrogatories.—Where the answers to the interrogatories to the jury show that the verdict rests on certain paragraphs of the complaint, errors in the rulings as to the other paragraphs are harmless, p. 595.</p> <p>G. Appeal.—Assignments of Errors.—Submission of Cause to Jury. —New Trial.—The wrongful submission of a case to the jury for trial constitutes a reason for a new trial, and cannot be assigned as error independently on appeal, p. 595.</p> <p>7. Trial.—Motions in Arrest.—Nevo Trial.—A prior motion in arrest of judgment cuts off the right to move for a new trial, p. 590.</p> <p>8. Trial.—Motions in Arrest.—Reasons.—The inclusion of insufficient reasons, or reasons for a new trial, in the motion in arrest of judgment, does not change the legal effect of such motion in cutting off the right to move for a new trial, p. 596.</p> <p>9. Trial.— Motions in Arrest.— Bonds.— Execution.— Proceedings Supplementary.—In a suit to subject certain United States bonds alleged to belong to the defendant, to the payment of his debts, a motion in arrest of judgment alleging that such bonds are not subject to execution, questions the sufficiency of the complaint, p. 596.</p> <p>10. Trial.—Motion to Set Aside Verdict.—New Trial.—Venire de Novo.—A motion to set aside a verdict, which only contains reasons for a new trial or for a venire de novo, should be overruled. p. 596.</p> <p>11. Trial.—Special Bindings.—Signature.—No Request for.—Effect.—Special findings, unsigned by the judge, or not requested by either party, have the effect of a general finding only. p. 597.</p> <p>12. Trial.—Verdict.—Special.—Effect.—A special verdict returned by a jury must be treated as a general verdict, special verdicts being unauthorized (§572 Burns 1908, Acts 1897, p. 128). p.597.</p> <p>IS. Trial.—Motions.—Venire de Novo.—Verdict.—Surplusage.—A motion for a venire de novo should be overruled, .where the verdict is sufficiently certain that a judgment may be based upon it, and surplusage should be rejected, p. 597.</p> <p>14. Judgment.—Directing Transfer of Bonds.—Receivers.—Parties. —A decree directing the defendants to transfer United States bonds to a receiver named, the interest to be applied to the discharge of defendant’s debt, is not improper, and does not bind the United States, p. 598.</p> <p>15. Execution.—Property Liable.—United States 'Bonds.—United States bonds are liable to execution tbe same as any other property. p. 599.</p> <p>16. Appeal.—Points.—When and How Raised.—Only those points set out in appellants’ statement of points can be raised in any subsequent stage of the appeal, p. 599.</p>

Prom Lawrence Circuit Court; James B. Wilson, Judge. Action by Spencer E. Cooper, by his next friend, against the United States Cement Company. Prom a judgment on a verdict for plaintiff for $500, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. '2, Acts 1901, p. 565, §10.

<p>1. Intoxicatino Liquors.— Crimes.—Forfeitures.—Statutes.—Section 8340 Burns 1908, Acts 1907, p. 27, providing that it shall he unlawful for any person, firm or corporation to ship, receive, transport, carry or handle intoxicating liquors falsely labeled, and the carriage, transportation, possession, removal, delivery or acceptance of such falsely labeled liquors, with knowledge thereof, shall work a forfeiture thereof, defines a crime, and also a basis for the forfeiture of the liquors involved, p. 615.</p> <p>2. Indictment and Information.— Intoxicating Liquors.— Falso Labels.—An indictment charging that defendants, three persons, unlawfully and knowingly shipped, received, transported, carried and handled intoxicating liquors, to wit, twelve pints of whisky, under a false and fictitious name, to wit, under the name of glass, charges the commission of a crime under §8346 Burns 1908, Acts 1907, p. 27, providing, among other things, that it shall be unlawful for any “person or persons” to ship, receive, transport, carry or handle falsely labeled intoxicating liquors; and it is not material that such “person or persons” were not common carriers, p. 617.</p> <p>3. Intoxicating Liquobs.—False Labels.—Handling 'Without Labels.—The statute (§8346 Burns 1908, Acts 1907, p. 27) prohibiting the handling of intoxicating liquors falsely labeled, does not require that such liquors shall be labeled, p. 617.</p> <p>4. Intoxicating Liquobs.— False Labels.— Knowledge.— Indictment.—In a prosecution for handling intoxicating liquors falsely labeled, it is not necessary, under the statute (§8346 Burns 1908, Acts 1907, p. 27), to charge defendants with knowledge of the falsity of such labels, but defendants’ proof of want of knowledge thereof entitles them to an acquittal, p. 617.</p> <p>5. Intoxicating Liquobs.—False Labels.—“dlass.”—Labeling intoxicating liquors as “glass” constitutes a false labeling under §8346 Burns 1908, Acts 1907, p. 27, prohibiting the handling of falsely labeled liquors, p. 618.</p>

<p>1. Appeal.—Assignments of Errors.—Faihire to Designate Court Committing Alleged Error.—An assignment that “the court erred in sustaining appellee’s demurrer to the third paragraph of the relator’s complaint,” without designating the court which committed the alleged error, is sufficient, p. 625.</p> <p>2. Appeal.—Assignments of Errors.—Designating Wrong Court as the One Committing Error.—Designating the wrong court, in the assignment of errors, as the one committing the error complained of, presents no question as to the alleged error, p. 626.</p> <p>3. Appeal.—Transfer of Property Involved.—Mandamus.—Damages.—Parties.—An appeal, in an action for mandamus and for damages by the owner of a telephone exchange against the owner of another, for his refusal to permit connection with his exchange, should not be dismissed because the plaintiff has sold his exchange. p. 626.</p> <p>4. Pleading.—■ Complaint.-—Contracts.—Written.—Oral.—Presumptions.—A contract is presumed to be oral unless alleged to be in writing. ■ p. 628.</p> <p>5. Pleading.— Complaint.— Contracts.—Telephones.—A “working” agreement between the owners of two telephone exchanges, alleged in the complaint, filed January 23, 1907, to have been in force for inore than two years, will be presumed not to cover a special contract, made February 7, 1906, relating to telephone service to a certain city. p. 62S.</p> <p>6. Contracts.— Breach.— Sped fie Performance.— Telephones.— A contract between two owners of separate telephone exchanges, whereby their respective patrons have the right to the servics of both exchanges, is subject to specific performance, if, as a matter of law, it cannot be abandoned by such contracting parties, p. 628.</p> <p>7. Contracts.—Indefinite as to Time.—Discontinuance.—Damages. —Ordinarily, contracts of indefinite duration may be discontinued at any time by either party, the only remedy, in case of a wrongful breach, being an action for damages, p. 628.</p> <p>8. Carriers.—Telephones.—A telephone company is a common carrier of news. p. 629.</p> <p>9. Telegraphs and'Telephones.—Onmership.—An individual may own and operate a public telephone (§5796 Burns 1908, Acts 1903, p. 204) ; but ho is subject to the same restrictions and duties as a corporation engaged in a similar service, p. 029.</p> <p>10. Telegraphs and Telephones.—Use of Other Exchanges.—The owner of a telephone exchange is under no public duty requiring him to furnish the use of his exchange or lines to the patrons of another exchange, and all of such patrons must take notice thereof, p. 029.</p> <p>11. Telegraphs and Telephones.—Public Interest.—Discriminations.—Property used in the telephone business for public purposes is impressed with a public interest, and discrimination in the use thereof is not permissible, pp. 630, 635, 637.</p> <p>12. Telegraphs and Telephones.—Public Service.—Discriminations.—The owner of a public telephone owes an impartial duty to all persons, but in determining the scope of his duty to the public generally, consideration must be given to the capacity of his system and to his subscribers, p. 630.</p> <p>13. Telegraphs and Telephones.—Exchanges.—Right to Use of.— Contracts.—Confiscation.—If the owner of a telephone exchange were compelled to grant the use of his exchange to the patrons of other exchanges, it would destroy his right of contracting with subscribers for the use of his own exchange, and therefore constitute a confiscation of his property, p. 630.</p> <p>14. Telegraphs and Telephones.—Exchanges.—Physical Connections.—Tiie owner of a telephone exchange, is required to receive and transmit telephonic messages from other exchanges; but he is not required, apart from contract, to allow the owners of other exchanges to connect their wires with his exchange, pp. 631, 032.</p> <p>15. Telegraphs and Telephones.-—Duty to Transmit.—Telegraph companies are required to transmit messages upon payment erf a reasonable price, whether such messages are received from individuals or from other telegraph companies, p. 631.</p> <p>10. Telegraphs and Telephones.—Right of Physical Connection with Exchanges.—Solvency.—The fact that the owner of a telephone exchange is solvent or insolvent neither gives nnr denies to him any right to compel the owner of another exchange to permit the physical connection of their exchanges, so that the patrons of the former may use the lines of the latter, p. 634.</p> <p>17. Courts.—Progress.—Adaptations.—Justice.—The law must progress with civilization, and when new conditions arise, the law applicable thereto must be applied, p. 635.</p> <p>18. Telegraphs and Telephones.—Physical- Connection of Exchanges.—Contracts.—Discrimination.—The owner of a telephone exchange who, by virtue of contracts, permits the owners of other exchanges the right to make physical connection with his exchange, may not refuse connection, on similar terms, to the plaintiff for his exchange, pp. 636, 640.</p> <p>19. Telegraphs and Telephones.—Physical Connections of Exchanges.—Contracts.—Abrogation.—Where the owners of two telephone exchanges enter into a “working” agreement of indefinite duration, whereby the patrons of such exchanges are entitled to the use of the services of both, such owners cannot abrogate such agreement and refuse such service, pp. 636, 638.</p> <p>20. Contracts.—Kmds.—Breach.—Remedy.—Specific Performance. —The remedy for the breach of certain kinds of contracts is an action for damages, and for others, specific performance, p. 636.</p> <p>21. Mandamus.—Enforcement of Contracts.—Public Ditty.—Mandamus does not lie to enforce a purely private contract, but does lie to enforce one, where the law imposes a duty requiring the performance thereof, p. 637.</p> <p>22. Contracts.— Consideration.—■Telephones.— Exchange Connections.—A contract whereby the owner of a telephone exchange permits the patrons of another exchange the use of the service of his exchange in consideration of a like service to his patrons by the owner of the other exchange, is supported by a sufficient consideration. p. 637.</p> <p>23. Contracts.— Circumstances.— Construction.— In construing a contract the circumstances, the character of the business affected, and the object to be attained, should be considered, p. 637.</p> <p>24. Telegraphs and Telephones.—Toll Lines.—Contracts.—Discontinuance.—Notice.—The patrons of a telephone exchange have no such interest in the use of a separate toll line from their exchange to a distant point as will prevent the termination of a contract between the owner of the exchange and the owner of such toll line, where the contract provides for a termination thereof by either party upon thirty days’ notice, such patrons being required to take notice of the provisions of such contract, p. 639.</p> <p>25. Evidence.— Judicial Notice.— Switch.— Telephones.— Courts take judicial notice that telephone connections are made by means of a device denominated a switch, p. 641.</p> <p>26. Telegraphs and Telephones.— Discriminations.— Telegraph companies must furnish service upon equal terms to all. p. 642.</p> <p>27. Mandamus.-—Other Adequate Remedy.—Mandamus does not lie where there is another adequate legal remedy, p. 642.</p> <p>28. Telegraphs and Telephones.—Physical Connection of Exchanges.—Dispute as to Amount Due as Tolls.—Excessive Payment.—Recovery.-—Where the owner of a telephone exchange disputes the charge made by the solvent owner of another exchange with which the former’s exchange is physically connected, it is the former’s duty to pay such charge under protest and bring an action to recover the excess; otherwise the latter is justified in disconnecting his exchange, pp. 642,644.</p> <p>29. Telegraphs and Telephones.—Excessive Charges.—Recovery of .—Voluntary Payment.—The excess above reasonable rates, charged by a telephone company, may be recovered, such payment being involuntary, p. 643.</p> <p>30. Pleading.— Complaint.— Conclusions.—■ No Other Adequate Remedy.—In an action in mandamus, an allegation in a complaint that the plaintiff had no other adequate legal remedy, is a conclusion. p. 644.</p>

<p>From Carroll Circuit Court; James P. Wason, Judge.</p> <p>Prosecution by the City of Delphi against John Hamling. From a judgment for defendant, plaintiff appeals.</p>

From Grant Circuit Court; U. J. Paulus, Judge. Action by The State of Indiana, on the relation of 'William J. Linnville and others, against Walter R. Meek, as clerk of the town of Jonesboro. Prom a judgment for plaintiff, defendant appeals.

Prom Delaware Circuit Court; John W. Macy, Special Judge. Highway petition by Samuel P. Pitser, against which John W. McCreery remonstrates. Prom a judgment for remonstrant, the petitioner appeals. Transferred from Appellate Court under §1393 Burns 1908, Acts 1907, p. 237, §2.

From Tipton Circuit Court; J. C. Blaclclidge, Special Judge. Suit by the First National Bank of New Castle, Indiana, against The Town of Windfall City and others. Prom a judgment for plaintiff against such city, defendants appeal.

Prom Posey Circuit Court; O. M. Welborn, Judge. Action by Henry W. Berndt, as administrator of the estate of Charles C. Berndt, deceased, against the Evansville and Terre Haute Railway Company. Prom a judgment for plaintiff, defendant appeals.

<p>1. Guabdian and Wabd.—Custody.—Habms Corpus.—Unfitness of Guardian.—Removal.—-The legal guardian has a prúma facie right to the custody of his ward and may enforce such right by habeas corpus, but such right may be overthrown, without the filing of any petition for such guardian’s removal, by proof of such guardian’s unfitness, the welfare of the child being the vital question. Johns v. Bmmert, 62 Ind. 538, and Palin v. Voliva, 158 Ind. 380, distinguished. Cottrell v, Booth, 166 Ind. 469, overruled, pp. 712, 715,</p> <p>2. Parent and Child.—Custody.—A father has the legal right, to the custody of his children, but such right cannot overthrow the rights of the children where their welfare demands a cessation of such custody, p. 714.</p>

<p>From Superior Court of Marion County (71,987, 71,996) ; John L. MoMaster, Judge.</p> <p>Actions by The State of Indiana against the American Express Company and the United States Express Company. From judgments for defendants, plaintff appeals.</p>

<p>From Crawford Circuit Court; William O. Dtz, Judge.</p> <p>Application by Charles E. Moore for a license to retail intoxicating liquors, against which Martin J. Brown and others remonstrate. From a judgment for the applicant, remonstrants appeal.</p>

<p>From Superior Court of Marion County (73,552, 73,555, 73,554) ; Vinson Carter, Judge.</p> <p>Petitions for reassessment on account of street improvements. From adverse judgments, plaintiffs appeal.</p>

<p>From Dekalb Circuit Court; ISmmet A. Bratton, Judge.</p> <p>Petition by Jacob Cook for reassessment of street improvement. From an adverse judgment, he appeals.</p>