Volume 173 — Indiana Reports

<p>Prom Porter Circuit Court; W. G. McMahan, Judge.</p> <p>Action by the Western Rawhide and Belting Company and others, against the Simplex Railway Appliance Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Prom Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by The State of Indiana, on the relation of Thomas L. Davis, against John Z. Johnston. Prom a judgment for defendant, plaintiff appeals.</p>

Prom Lagrange Circuit Court; James 8. Dodge, Judge. Proceeding by Clearspring Township of Lagrange County to probate a will, Noah Blough and' another resisting. Prom the judgment rendered, plaintiff and another appeal.

<p>1. Tetai,. — Instructions.—Street Railroads. — Husband's Contributory Neyliyencc. — In an action by a husband against a street railroad company for injuries to his wife, an instruction that the only contributory negligence which could defeat the action would, bo that of the wife, is harmless, where there was no evidence tending to show the husband guilty of any negligence, p. 33.</p> <p>2. Teial.— Instructions.— Invited Error.— Appellant cannot successfully complain of an alleged erroneous instruction, where the error therein was incorporated in instructions given at its request, p. 34.</p> <p>8. Damasks. — Statutory Limit. — Applicability in Action by Husband for Injuries to Wife. — In an action by a husband for personal injuries inflicted upon his wife by a street railroad company, the statutory limit for the damages recoverable in cases of death (§285 Burns 190S, Acts 1899, p. 405) should be considered, p. 34.</p> <p>4. Damages.— Excessive.— Husband and Wife.— A judgment for $10,000 in favor of a husband, fifty-five years old, for damages for permanent injuries to his wife, forty-two years old, is excessive, where the husband’s testimony showed that the wife’s services were worth from eight to ten dollars per week to him, and that he had incurred a medical bill for $020 because thereof, pp. 35, 38.</p> <p>5. Pleading.— Complaint.— DamagesÍ — Special.—Evidence Admissible.- — Husband and Wife. — Under a complaint by a husband against a street railroad company for injuring his wife, the complaint alleging that the husband had been thereby deprived of her “services," evidence of his loss of her aid, society and companionship is admissible, but not his loss of her assistance in his cigar business, pp. 35, 37.</p> <p>6. Damages. — Evidence.—Injuries to Wife. — Question for Jury.— The amount of damages sustained by a husband by reason of injuries inflicted upon his wife, is not susceptible of direct proof, but should be left to the sound discretion of the jury. p. 30.</p> <p>7. Appeal.— Briefs.— Points.— Evidence.— Excessive Damages.— Where appellant in the points in its brief asserts that the damages given were excessive, further stating the facts upon which the claim rested, and citing authorities supporting the point, the question of excessive damages is properly raised, though the evidence is not set out in the briefs, the judgment being excessive under any evidence admissible within the issues, p. 37.</p> <p>8. Damages. — Insufficient for Wife. — Excessive for Husband. — The Supreme Court, on an appeal from an excessive judgment in favor of a husband for injuries to his wife, cannot consider the fact that his wife had been given insufficient damages in her action, p. 37.</p> <p>9. Damages. — Suffering.—Husband and Wife. — hi determining a husband’s damages for injuries to his wife, neither her sufferings nor any mere sentimentality can be considered, p. 37.</p> <p>10. Evidence. — Elements of Damages. — Negligence.—Husband and Wife. — In an action by a husband for damages caused by injuries inflicted upon his wife, the elements of damage — such as the value of her assistance in his business, her sendees in the household, her society and companionship — cannot be separately estimated. p. 38.</p> <p>11. Appeal. — General Reversal. — Excessive Damages. — Negligence. —Where the Supreme Court is unable to say that a right result was reached on the question of defendant’s negligence, a general reversal for excessive damages may be ordered, without giving the appellee an opportunity to remit, p. 39.</p>

<p>From Superior Court of Marion County (72,346) ; Vinson Garter, Judge.</p> <p>Action by Charles Stolte, by his next friend, against the Winona Technical Institute, at Indianapolis. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Townships. — Boards of Fmmce. — Depositories.—Designating.—■ Upon an “appeal” taken under §7534 Burns 1908, Acts 1907, p. 391, §13, the court or judge thereof in vacation is authorized to approve the bond tendered by a bank, or trust company, to a board of finance of a township, and may determine the fitness of such bank or trust company for, and designate the same as, a public depository, p. 55.</p> <p>2. Mandamus. — Other Adequate Legal Remedy. — Township Boards of Finance. — Designating Public Depositories. — Mandamus does not lie to compel a township board of finance to designate an applicant bank as a public depository, since by §7534 Burns 1908, Acts 1907, p. 391, §13, a complete remedy for a wrongful refusal so to designate, is given by appeal, p. 05.</p> <p>3. Pleading. — Complaint.—Mandamus.—Presentation of Bond by Bank to Township Board of Finance. — Presumptions.—Under an allegation, in a petition for mandamus, that the applicant bank tendered to defendant township finance board a bond executed by a surety company authorized to do business in this State, it will not be presumed that such board approved such bond, an appeal being provided for in case of its refusal so to approve (§7534 Burns 1908, Acts 1907, p. 391, §13). p. 50.</p> <p>4. Pleading. — • Complaint. — Mandamus.—Designating Depositories. —Approval of Bond. — Failure to Allege. — A complaint to compel a township board of finance to designate the relator bank as a public depository, which fails to allege that relator’s bond, furnished as surety for moneys received, was approved by such board, is bad. p. 50.</p> <p>5. Constitutional Law. — Township Boards of Finance. — Appeal.— Judicial Bodies. — Statutes.—Township boards of finance are not judicial bodies, but sections of a statute providing appeals therefrom (§§7534, 7537 Burns 1908, Acts 3907, p. 391, §§13, 16), are not for that reason unconstitutional, such provisions constituting a convenient way of bringing the questions before a judicial tribunal, p. 56.</p>

Prom Superior Court of Tippecanoe County; Jere West, Special Judge. Action by Atlanta Roudebush, as administratrix of the estate of Charles Roudebush, deceased, against the Port Wayne and Wabash Valley Traction Company. Prom a judgment on a verdict for plaintiff for $8,000, defendant appeals.

Prom Morgan Circuit Court; Joseph W. Williams, Judge. Action by Otis Shields, by his next friend, against the Romona Oolitic Stone Company. Prom a judgment on a verdict for the plaintiff, defendant appeals.

<p>Prom Johnson Circuit Court; Elba L. Branigin, Special Judge.</p> <p>Action by Grafton Johnson and another against the Board of Commissioners of the County of Johnson. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal. — Instructions.— Filing.— How Shoum.— Instructions given or refused, which, are merely ordered filed and made a part of the record without a bill of exceptions, are not a part of the record unless there is an order-book entry showing the actual filing thereof, p. 97.</p> <p>2. 'Trial. — Permitting Jury to Have Award of Damages. — JSmincnt Domain. — Intcnirban Railroads. — Refusing to permit the jury to take into the jury room the award of damages made by the appraisers in an interurban railroad condemnation proceeding, is not prejudicial to .the company, where the amount of damages is the only question involved, p. G7.</p> <p>3. Trial. — Interrogatories.—Duplication.—It is not erroneous to refuse to submit a requested interrogatory to the jury, where a similar one has already been propounded, p. 97.</p> <p>4. Trial.— Interrogatories. — ■ Alternative.— Harmful error is not shown by the trial court’s refusal to submit an interrogatory, the answer to which was conditioned upon a negative answer to the preceding one, where the preceding one was answered affirmatively, p. 98.</p> <p>5. Trial.— Interrogatories.— Items of Damages.— Interrogatories concerning items of damage to be included in the general verdict are improper, p. 98.</p> <p>6. Trial.— Interrogatories.— Double.— Interrogatories must be single and call for a single material fact. p. 98.</p>

<p>1. Intoxicating Liquors. — Sales by Druggists. — Prescriptions.—> Applications. — Compelling to Produce. — Under §8352 Burns 1908, Acts 1907, p. 089, §2, providing that druggists shall keep on file and carefully preserve for one year all prescriptions and applications for intoxicating liquors, and making it unlawful to sell except upon a physician’s written prescription, or upon an application. by one known not to be in the habit of drinking liquor as a beverage, a druggist cannot be compelled to disclose such applications where the purpose is to prosecute him for making unlawful sales, pi). 109,104.</p> <p>2. Constitutional Law. — Intoxicating Liquors. — Sales by Druggists. — Pubiie Records. — The legislature has the power to require druggists to keep a public record of all sales of intoxicating liquors, p. 103.</p> <p>3. Statutes. — Criminal.—Construction.—Criminal and penal laws are strictly construed, and omitted words cannot be supplied by the courts, p. 103.</p> <p>4. Constitutional Law. — Compelling Person to Testify Against Himself. — No person can be compelled to testily against himself (Const. Art. 1, §14), and this secures a person from being compelled to produce bis private books and papers, p. 104.</p> <p>5. Criminal Law. — Compelling Accused to Testify Against Himself. — Discharge.—Plea in Abatement. — An accused who is compelled by an order of court to give testimony, or furnish evidence, against himself “touching the commission of any misdemeanor” is entitled to a discharge; and a plea in abatement stating such, facts should be sustained, p. 105.</p>

<p>Prom Decatur Circuit Court; Marshall Hacker, Judge.</p> <p>Action by George Powers against tbe Cleveland, Cincinnati, Chicago and St. Louis Eailway Company. Prom a judgment on a verdict for plaintiff for $6,500, defendant appeals.</p>

<p>Prom Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Thomas Brown against the Shirley Hill Coal Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Prom White Circuit Court; James P. Wason, Judge.</p> <p>Proseeutiou by The State of Indiana against. Elmer Tillett. Prom a judgment for defendant, the State appeals.</p>

<p>Prom Huntington Circuit Court; John B. Day, Special Judge.</p> <p>Drainage proceeding by Eoseoe A. Kaufman, against vyhich Charles W. Alexander and others remonstrate. Prom a judgment for remonstrants, petitioner appeals.</p>

<p>1. Trial. — Instructions.—How Made Part of Record. — Appeal.— Where the trial judge signed and dated a memorandum at the close of the instructions asked by appellee, showing that the appellant excepted to certain ones thereof, but neither the appellant nor its counsel signed a memorandum showing which instructions refused and which given, were excepted to, as required by §544a Burns 1905, Acts 1903, p. 338, §1, said exceptions were not properly taken, p. 143.</p> <p>2. Trial. — Instructions.—Hoto Made Part of Record*,* — Appeal.— Under §560 Burns 1908, §535 R. S. 1881, providing that parties may except to the giving, or refusing to give instructions, by having the judge write on the margin of each instruction questioned the words “refused, and excepted to,” or “given, and excepted to,” instructions, at the close of all of which, the judge has noted which were given and which refused, are not a part of the record, p. 144.</p> <p>3. Trial. — Instructions.—How Made Part of Record. — Appeal.—Instructions signed by the judge in a memorandum at the close thereof, are not a part of the record under §558 Bums 1908, cl. 6, §533 R. S. 1881, providing that all instructions given, or asked for, must be signed by the judge and filed, p. 144.</p> <p>4. Trial. — Instructions.—How Made Part of Record. — Appeal.—A memorandum signed and dated by the judge, at the close of instructions requested, that appellant “excepts to the giving of instructions three, four and seven, requested by” appellee, does not make such instructions a part of the record under §561 Burns 1908, Acts 1907, p. 652, providing that the judge shall indicate, in such memorandum, which of such instructions were given and which refused, p. 144.</p> <p>5. Trial. — Instructions.—How Made Part of Record. — Appeal.— Where the trial judge signed and dated a memorandum at the close of instructions requested, that appellant “excepts to the giving of instructions three, four and seven, requested by” appellee, such instructions are not a part of the record under §544a Burns 1905, Acts 1903, p. 338, §1, providing that the judge shall indicate in a memorandum at the close of the instructions which were given and which refused, p. 145.</p> <p>6. Trial. — Refusal to Allow Jury to Rave Award of Appraisers.— Statement to Jury. — Exceptions to Award. — Inierurhan Railroads. —Appeal.—The refusal of the trial judge to permit the jurors to take to their room the award of the appraisers, in an interurban railroad condemnation case, or to permit the plaintiff’s attorney to mention the contents of such award in the opening statement to the jury, or permitting the jurors to take the exceptions to such award to their room, does not constitute reversible error, p. 145.</p>

<p>Prom Pulaski Circuit Court; Francis J. Vurpillat, Judge.</p> <p>Quo warranto by The State of Indiana, on the relation of William May, against Plarry Hall. Prom a judgment for defendant, plaintiff appeals.</p>

From Clark Circuit Court; H. G. Montgomery, Judge. Highway proceeding by Laura M. Jones and' others, against which the Aetna Life Insurance Company and another remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>Prom Marion Circuit Court (16,837); Charles Bemster, Judge,</p> <p>Suit by Jacob Grossman and others against the City of Indianapolis and others. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>Prom Harrison Circuit Court; William Ridley, Special Judge.</p> <p>Prosecution by The State of Indiana against William E. Cotner. Prom a judgment of conviction, he appeals.</p>

From Dekalb Circuit Court; John W. Eana/n, Special Judge. Application for liquor license by Peter F. Behler, against which Chauncey T. Ackley and others remonstrate. From a judgment for remonstrators, applicant appeals.

Prom Delaware Circuit Court; Joseph G. Le.ffler, Judge. Action by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company against Clayton IT. Rudy and others. Prom a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901, p. 565, §10.

<p>Prom Pulton Circuit Court; Harry Bernetha, Judge.</p> <p>Prosecution by The State of Indiana against Alfred Hizer. Prom a judgment of conviction, he appeals.</p>

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Joseph H. Graham and others against William Stroup and others. Prom a judgment for plaintiffs, defendants appeal.</p>

Prom Pulton Circuit Court; Harry Bernetha, Judge. Highway petition by Jonathan Masters and others, against which Thomas Neff and another remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>Prom Criminal Court of Marion County (37,384); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Charles L. Hammer. Prom a judgment of conviction, defendant appeals.</p>

<p>1. Trial. — Verdict.—Interrogatories.—Conflict.—A general verdict for the plaintiff constitutes a finding in his favor upon all of the issues; and answers to interrogatories to the jury will not control such verdict unless they are in irreconcilable conflict therewith. p. 212.</p> <p>2. Trial. — Instructions.-—Preponderance of Evidence. — Eumtier of Witnesses. — An instruction, in a personal injury case, that “all .other things being exactly equal in all respects, the witnesses being of equal intelligence and credibility, and possessing equal opportunities of knowledge of the matters about which they testified, and testifying with equal candor, intelligence and fairness, the weight of the evidence as to any matter may be considered by you to be on the side which has the greater number of witnesses in its favor thereon,” is misleading. Indianapolis St. R. Go. v. Schmidt, 163 Ind. 360, distinguished, p. 214.</p>

<p>Prom Jay Circuit Court; John F. LaFolette, Judge.</p> <p>Suit by Philip Hipskind and others against James A. Dawson and others. Prom a decree for plaintiffs, defendants appeal.</p>

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Henry V. Templeton against the Board of Commissioners of the County of Newton. From a judgment for defendant, plaintiff appeals.</p>

<p>Intoxicating Liquobs.— Toimship Remonstrances. — • Subsequent Incorporation of City Within Township. — Where the voters of a township, including a town, remonstrate against the granting of a license to retail liquor therein, a subsequent incorporation of a city out of such town has no effect upon such remonstrance, and it is unlawful to grant a license in such city until the expiration of such remonstrance.</p>

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Petition by William H. Cox and others, against which the City of Peru remonstrates. Prom a judgment for petitioners, remonstrant appeals.</p>

<p>1. Constitutional Law. — Courts.—Creation of. — Under article 7, §1, of the Constitution, vesting the judicial power of the State “in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish,” the legislature had the power to create the Superior Court of Yigo County and to define its jurisdiction. p. 246.</p> <p>2. Action.— Civil.— Quo Warranto. — Jurisdiction.—The action of quo warranto for the recovery of the possession of an office, being for the enforcement or protection of a private right, is a civil action; and the Superior Court of Vigo County has jurisdiction of a case thereof, p. 247.</p> <p>3. Constitutional Law. — Officers.—Judges.—Vacancies in Office.-— Power of Appointment. — Under article 5, §18, of the Constitution, providing that the Governor shall fill any vacancy that may occur “in the office of judge of any court,” and §8845 Burns 1908, Acts 1905 p. 219, §218, empowering the mayor to fill vacancies in the office of city judge, the Governor has no right to fill the vacancy in the office of judge of a municipal court, the constitutional provision referring only to state courts, p. 247.</p> <p>4. Justices oe the Peace. — Powers.—Constitutional Law. — Justices of the peace are recognized by the Constitution as township officers, but not as vested with judicial powers, p. 248.</p> <p>5. Constitutional Law. — Municipal Offices. — The legislature may create all municipal offices that it deems necessary, and may provide the method of the appointment or election of their officers, p. 249.</p> <p>6. Constitutional Law.— Construction.— Custom.— The uniform practice, custom and course of legislation under a constitutional provision, as well as the failure of the people to amend it, may be considered in construing such provision, p. 250.</p>

Prom Johnson Circuit Court; William E. Deupree, Judge. Condemnation proceeding by the Citizens Water and Light Company of Greenwood against Horace E. Kinney and another. Prom an interlocutory order for plaintiff, defendants appeal.

From Dubois Circuit Court; E. A. Ely, Judge. Suit by Andrew J. Greener and others against Robert IT. Fleming and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under §1394 Burns 1908, subd. 1, Acts 1901, p. 565, §10 (See 41 Ind. App. 77).

Prom Superior Court of Allen County; O. N. Heaton, Judge. Drainage proceeding by Daniel W. Zintsmaster and others, to which James A. Aiken and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

<p>Prom Yigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Action by The State of Indiana, on the relation of William T. Gleason, against James Lyons, as mayor of the City of Terre Haute. Prom a judgment for defendant, plaintiff appeals.</p>

From Noble Circuit Court; Joseph W. Adwir, Judge. Suit by William D. Hayes and others against Anna Martz and others. From a decree for defendants, plaintiffs appeal. Transferred from Appellate Court under §1394 Burns 3908, subd. 2, Acts 1901, p. 565, §10.

<p>1. Trial.1 — Instructions.— Damages. — ■ Condemnation. — Interurban Railroads. — An instruction that the only question involved is the amount of damages defendants have sustained by reason of the interurban railroad company’s condemnation of the described real estate, is not misleading as causing the jury to think the fee-simple title was taken, where another instruction specifically outlined the damages which should be given, p. 293.</p> <p>2. Trial. — Instructions.—Damages.— Condemnation.— Interurbm Railroads. — An instruction in an interurban railroad condemnation case that in estimating the value of the land condemned the jury should consider its value as adapted to a particular, as well as for general uses, and should consider the present and prospective needs of the community, is not bad, where the jury were further instructed that no remote, conjectural, or speculative damages should be allowed, and that the damages allowed should not exceed the market value of the land on the day it was appropriated. p. 294.</p> <p>3. Appeal. — Instructions.—Prejudice.—Where errors in giving instructions are not prejudicial, a reversal will not be ordered, p. 295.</p> <p>4. Trial. — Instructions.—Duplication.—It is not erronous to refuse instructions, where similar ones have been given, p.295.</p> <p>5. Trial. — Instructions.—Refusal to Give. — Evidence not in Record. — Instructions refused will be considered as not applicable to the evidence, where the evidence is not in the record, p. 295.</p> <p>6. Trial. — Argument to Jury. — Misconduct of Counsel. — Comments on Evidence. — Remarks of counsel for appellee repeating the testimony of a certain witness as to how he arrived at the damages in a case of condemnation, are not erroneous, where there is no showing that such testimony was given by appellee’s witness, p. 296.</p> <p>7. Trial. — Argument to Jury. — Weight of Evidence. — Statements by counsel that the testimony of certain witnesses is entitled to greater weight than that of others, is legitimate argument, p. 296.</p>

<p>From Dubois Circuit Court; John L. Bretz, Judge.</p> <p>Prosecution by the State of Indiana against Lee Heath. From a judgment of conviction, defendant appeals.</p>

<p>Prom Gibson Circuit Court; M. W. Fields, Special Judge.</p> <p>Prosecution by The State of Indiana against Arthur Lucas. Prom a judgment of conviction, defendant appeals.</p>

From Orange Circuit Court; Thomas B. Bushirh, Judge. Action by John Wilfong against the Chicago, Indianapolis and Louisville Railway Company. From a judgment on a verdict for plaintiff for $1,000, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, siabd. 2, Acts 1901, p. 565, §10.

Prom Wayne Circuit Court; Henry G. Fox, Judge. Action by Jeannette Sudhoff, as administratrix of the estate of John G-. Sudhoff, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901, p. 565, §10.)

<p>1. Appeal. — Amount Involved. — Where a judgment, exclusive of interest and costs, does not exceed $50, no appeal lies to the Supreme or Appellate Court (§1389 Burns 1908, Acts 1903, p. 280, §1), unless a question is duly presented concerning the validity of a franchise, the validity of a municipal ordinance, the constitutional validity of a federal or state statute, or rights guaranteed by the state or federal Constitution (§1391 Burns 1908, Acts 1901, p. 565, §8). p.333.</p> <p>2. Appeal.— Jurisdiction.— Constitutional Question.— Contract.— Rescission. — Wages.—Future Assignments. — In an action against a railroad company for wages, the defense being that the plaintiff had assigned such wages, a part of which had not been earned at the time of the assignment, and plaintiff contended and proved that such assignment had been rescinded, to the defendant’s knowledge, the court rendering a judgment for the plaintiff for $15.54, the proper construction of §§7987, 7984 Bums 1908, Acts 1899, p. 193, §§4, 1, prohibiting the assignment of future wages, and providing that such act shall not apply to employes of interstate carriers, is not presented, the Supreme Court having no power to disturb the findings, or to determine their correctness, the decision not really involving the question of the right of assignment of future wages, p. 333.</p>

Prom Hamilton Circuit Court; Meade Vestal, Special Judge. Action by Francis M. Howard, as administrator of the estate of Charles L. Howard, deceased, against the Union Traction Company of Indiana. From a judgment on a verdict for plaintiff for $2,000, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, cl. 2, Acts 1901, p. 565, §10.

<p>1. Appeal.— Interlocutory Orders.— Eminent Domain. — Appointment of Appraisers. — Under §933 Burns 1908, Acts 1905, p. 59, §5, providing that from the “interlocutory order overruling such objections [to the complaint] and appointing appraisers such, defendants, or any of them, may appeal,” an appeal taken from the order appointing appraisers is sufficient and may include and present for decision all prior adverse rulings to which exceptions have been taken, p. 345.</p> <p>2. Appeal. — Transcript.—Index.—An index covering the first four pages of the transcript complies with Supreme Court rule three requiring the index “to form the first page of the transcript.” p. 345.</p> <p>3. Pleading. — Complaint.— Statutory Form.— Eminent Domain.— A complaint in eminent domain, which follows the statutory requirements (§930 Bums 1908, Acts 1905, p. 59, §2) is sufficient, p. 346.</p> <p>4. Eminent Domain. — Right of. — Water-Mills.—Under §927 Burns 1908, §883 R. S. 1881, any person owning land upon one side of a watercourse upon which he desires to erect a mill to be propelled</p> <p>• by water, may exercise the power of eminent domain for the purpose of condemning the necessary lands for such purpose, pp. 346,347, 350.</p> <p>5. Eminent Domain. — Public Use. — Question for Courts. — Whether a certain use is a public one is a question for the courts, but where the legislature designates such use as a public one, the rebuttable presumption is that it is a public one. p. 347.</p> <p>6. Eminent Domain. — Public Use. — What Is. — For a use to be public it is not necessary that all of the public should actually participate therein, but only that the public may have a right so to do. p. 347.</p> <p>7. Constitutional Law. — Reenactment of Constitutional Provision. — Construction.—The reenactment of a constitutional provision which has received a judicial construction, impresses such construction upon the reenacted provision, p. 349.</p> <p>8. Eminent Domain. — Revocation of Right of. — Water-Mills.—The legislature has the right to revoke the power of eminent domain granted to owners of water-mills, p. 351.</p>

<p>Prom Criminal Court of Marion County; James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Alansing B. Melville. Prom a judgment of conviction, defendant appeals.</p>

<p>From Ohio Circuit Court; Thomas 8. Cravens, Special Judge.</p> <p>Suit by D. Quincy Wilber against Deborah Collins. From a decree for plaintiff, defendant appeals.</p>

Prom Hamilton Circuit Court; Ira W. Christian, Judge. Suit by Samuel M. Smith and another against the Board of Commissioners of the County of Hamilton, and others. Prom a judgment for defendants, plaintiffs appeal.

Prom Pike Circuit Court; Frank Fly, Special Judge. Prosecution by The State of Indiana against Ralph Smith. Prom a judgment releasing the defendant, during good behavior, from the payment of the fine imposed, the State appeals.

Prom Warren Circuit Court; James T. Saunderson, Judge. Highway petition by William Harmon and others, against which Augustus W. G-ephart and others remonstrate. Prom a judgment for remonstrants, petitioners appeal.

<p>1. Intoxicating Liquobs. — Applications.—1Description of Boom.— A description of the room, wherein the applicant for license desires to retail intoxicating liquors, which sets out the number of the lot, minutely sets out the building and floor in which the room is located, and describes the room by measurement, is sufficient, p. 399.</p> <p>2. Intoxicating Liquobs. — Remonstrances.—Challenge.—A verified challenge against certain remonstrators is sufficient, though the rejection of the challenged remonstrators would not reduce the number of remonstrators to less than a majority, p. 400.</p> <p>3. Intoxicating Liquobs. — Remonstrances.—Burden of Proof.— Evidence. — Under §8333 Burns 1908, Acts 1907, p. 281, the fact of filing a remonstrance constitutes prima facie evidence that the names thereto were lawfully attached, that the signers are legal voters, and qualified to remonstrate, but does not obviate proof by remonstrators that the signers constitute a majority of the voters in the township or ward. pp. 401,402.</p> <p>4. Intoxicating Liquobs. — Procedure.—The procedure in reference to the granting of licenses to retail intoxicating liquors is special and should be followed, p. 401.</p> <p>5. Intoxicating Liquobs. — Remonstrances.—Challenges.—An applicant for a license to retail intoxicating liquors.can challenge a remonstrance only by a verified pleading pointing out the specific objections to the signers, p. 401.</p> <p>6. Intoxicating Liquobs. — Remonstrances.—Challenge.—Authority of Attorney in Fact. — In a proceeding to obtain a license to retail intoxicating liquors, a challenge to a remonstrance, alleging that the person purporting to have signed the names of the remonstrators was not authorized to do so, and that the same is not their remonstrance, is sufficient, the question of fact presented thereby being whether the names were authorized at the time the remonstrance became effective upon its filing, p. 401'.</p> <p>7. Intoxicating Liquobs.— Remonstrances.— Withdrawals.— Remonstrators cannot withdraw from a remonstrance after the filing thereof on Friday preceding the regular session of the board of commissioners on Monday, p. 401.</p> <p>S. Intoxicating Liquobs.— Remonstrances. — Time for Filing.— A remonstrance against the granting of a license to retail intoxicating liquors may be filed at any time before midnight of the Friday preceding the regular session of the board of commissioners on Monday, p. 403.</p> <p>9. Appeal. — Reversal.—Costs.—On reversal, all costs accruing subsequently to the ruling because of which the reversal was ordered Should be taxed against the appellee, p. 403.</p>

<p>Prom Knox Circuit Court; Orlando H. Cobb, Judge.</p> <p>Prosecution by The State of Indiana against Colonel E. Witty. Prom a judgment of conviction, defendant appeals.</p>

Prom White Circuit Court; James P. Wason, Judge. Highway petition by Evert Bible and others, against which Joseph T. Moore and another remonstrate. Prom a judgment for petitioners, remonstrants appeal.

<p>1. Words and Phrases. — “Passage of mv Act." — The “passage of an act,” ordinarily signifies that the act has received the requisite vote of both branches of congress, or the assembly, in the constitutional manner, that the presiding officer of each house has properly signed it, and that the Governor has approved it, or that it has been passed over his veto, or has become a law by mere lapse of time. p. 416.</p> <p>2. Statutes. — Talcing Effect of. — Acts having an emergency clause take effect upon their passage, but those containing no such clause take effect upon the distribution of the laws and the proclamation of the Governor, even though a provision is made for the taking effect thereof at and earlier date. p. 416.</p> <p>3. Statutes. — Repealing and Saving Clauses. — Talcing Effect of.— Repealing and saving clauses, though expressed in the present tense, take effect with the rest of the act. p. 417.</p> <p>4. Statutes.— “After the Passage of This Act.”— Intoxicating Liquors. — The phrase “after the passage of this act,” as used in section nine of the act of 1908 (Acts 1908 [s. s.], p. 4), providing that if a county shall vote against the sale of liquors, then after ninety days from such election, all licenses issued “after the passage of this act” shall be null and void, provided, that no license issued prior to the “passage of this act” shall be affected thereby, is used in a technical sense, and imports the time at which such act took effect, p. 417.</p> <p>5. Intoxicating Liquors. — Licenses.—Character of Right. — A license to retail intoxicating liquors is not a vested or property right, p. 422.</p>

<p>Prom Vigo Circuit Court; James E. Piety, Judge.</p> <p>Action by Anna L. Gfroerer and others against Peter Gfroerer and others. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Pleading. — Complaint.—Initial Attaolc on Appeal. — Evidence.— Where a complaint is attacked for the first time, on appeal, the Supreme Court may look to the evidence to supply an omitted averment; but where a demurrer has been filed and overruled, the Supreme Court, on appeal, cannot look to other parts of the record to supply omissions, p. 431.</p> <p>2. Pleading.— Oomplaint. — Defects.— Reversal. — Statutes.— A judgment based upon a defective complaint which could lawfully have been amended in the court below, and which was demurred to, the demurrer being overruled, will be reversed by the Supreme Court, on appeal, regardless of §700 Burns 1908, §658 R. S. 1881, providing, among other things, that “no judgment shall be * * * reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, * * * or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judgment be * * * reversed, * * * where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” p. 431.</p> <p>3. Wills. — Insane Delusions. — Fear of Poisoning. — An insane delusion consists of a spontaneous conception and acceptance of that as a fact which has no actual existence, and a persistent belief therein against all evidence and probability; but a fear of being poisoned by certain persons does not constitute such a delusion, where others have warned the testator against such poisoning. p. 433.</p> <p>4. Wills. — ■Undue Influence. — Alienation of Affections. — A will secured by purposely and falsely alienating testatrix’s affections from her daughters is invalid, p. 434.</p> <p>5. Trial. — Instructions.—Erroneous.—Prejudicial Error. — Wills.— Insane Delusions. — A verdict of the testator’s insanity might be upheld where insanity is shown independently of alleged insane delusions, but where the court instructs that if such alleged insane delusions existed the will was invalid, prejudicial error is shown, where such delusions were not sufficient to show insanity, p. 434.</p> <p>6. Trial. — Instructions.— Wills.— Insanity.— Knowledge of Property. — An instruction that a testator should possess sufficient mind and memory to know the “exact” extent and value of his property is incorrect, such “exact” knowledge not being requisite, p. 435.</p> <p>7. Trial. — Instructions.—Assuming Facts. — 'Instructions should not assume facts in dispute, p. 435.</p> <p>8. Wills. — Undue Influence. — Determination of. — The question of undue influence in will cases is one of fact and must be determined by the jury from all the facts and circumstances in- the case. p. 43G.</p>

Prom Cass Circuit Court; John 8. Lairy, Judge. Action by Mary A. Beedle, as administratrix of the estate of Bailey Beedle, deceased, against the Wabash Railroad Company. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1394 Bums 1908, subd. 2, Acts 1901, p. 565, §10.

<p>1. Insane Persons. — Care of. — Clerics.—Under §3712 Burns 1908, §2861 R. S. 1881, clerks of the circuit courts are required to care for all persons who, by a proper inquest, have been adjudged as entitled to admission to a hospital for the insane, and may cause them to be confined in the county jail. p. 450.</p> <p>2. Oeeicers. — Sheriffs.—Duties.—The sheriff of the county is the keeper of the county jail, and is required to execute all legal processes, p. 450.</p> <p>3. Statutes— Construction. — Insane Persons. — Sections 3706, 3712 Burns 1908, §§2855, 2861 R. S. 1881, relating to the care of the insane, should be liberally construed, p. 450.</p> <p>4. Statutes.- — Grant of Principal Power. — Implication.-—The grant of a principal power carries with it by implication the grant of incidental powers necessary to carry out such principal power, p. 450.</p> <p>5. Insane Persons. — Clerics’ and Sheriffs’ Duties. — Clerks have the general power to issue warrants for the confinement of insane persons in the county jails (§3712 Burns 1908, §2861 R. S. 1881), and sheriffs are required to execute them (§9429 Burns 1908, §5868 R. S. 1881). p. 451.</p> <p>6. Mandamus. — Petition.—Insane Persons. — Sheriffs.—Inquests.— Notice. — A petition to mandate a sheriff to commit an insane person ordered committed by the clerk of the circuit court need not set out the jurisdictional matters required by the statute governing inquests, such matters having been determined by the officers holding the inquest, such sheriff being compelled to take notice of such inquest proceedings, p. 451.</p> <p>7. Insane Persons. — Warrant for Commitment to Jail. — Contents. — A warrant of commitment of an insane person to the county jail need not set out the clerk’s reasons for issuing same, p. 451.</p> <p>8. Officers. — Sheriffs.—Duties in Serving Warrant of Commitment of Insane Person. — It is the duty of a sheriff, upon receiving a warrant for the commitment of an insane person, to search for, arrest and confine such person, p. 451.</p> <p>9. Mandamus. — Alternative Writ. — Practicability of Confining Insane Person. — An alternative writ of mandate directed to the sheriff for the commitment of an insane person to the county jail, need not allege that it is practicable so to confine such person, p. 452.</p> <p>10. Mandamus. — Sheriffs.—Clerics as Relators. — Insane Persons.— A clerk of a circuit court is a proper relator in an action to compel a sheriff to execute a warrant issued by such clerk for the commitment of an insane person, p. 452.</p>

<p>Prom Boone Circuit Court; Willet H. Parr, Judge.</p> <p>Prosecution by The State of Indiana against Alonzo Larimore. Prom a judgment for defendant, the State appeals.</p>

<p>1. Municipal Cokpobations. — Street Improvements. — Cost.—Cities of Fifth Class. — The letting of contracts for street improvements in excess of fifty per cent of the valuation of the property to be ■ assessed is prohibited in cities of the first, second and third classes, but not in those of the fifth class’, p. 456.</p> <p>2. Municipal Coepoeations.— Street Improvements.— Collateral Attack. — Injunction.—Common councils of cities of the fifth class have jurisdiction over the making of street improvements, and their acts therein cannot be collaterally attacked by injunction, unless a want of jurisdiction over the subject-matter, or over the parties affected, is shown, p. 457.</p> <p>3. Municipal Coepoeations.— Street Improvements.— Propriety of. — Cost.—Payment.—The question of the wisdom, propriety, or expediency of making street improvements is for the city council; and under §8710 Burns 1908, Acts 1905, p. 219, §111, cities of the fifth class may cause such improvements to be made though the cost exceeds fifty per cent of the benefits to be as>sessed, such cities having the right to pay the excess, not to exceed $5,000, out of the public treasury, p. 457.</p> <p>4. Municipal Coepoeations. — Street Improvements. — Remonstrances. — Benefits.—Appeal.—City councils may by a two-thirds vote order street improvements, regardless of remonstrances, but property cannot be assessed more than the resulting benefits; and if an excessive assessment is made the property owner may appeal to the circuit court (§8710 Burns 1908, Acts 1905, p. 219, §111). p. 458.</p> <p>5. Injunction. — Adequate Remedy by Appeal. — Where redress may be secured by appeal from an unjust order for street improvements, injunction will not lie against the enforcement of such order, p. 458.</p> <p>6. Municipal Coepoeations.— Street Improvements.— Council.— Interested Members. — City councilmen, in ordering street improvements, act in a legislative capacity, and are not disqualified by reason of owning property along the street to be improved, but in assessing benefits they act in a ffwosi-judicial capacity and may be disqualified from acting, p. 458.</p> <p>7. Pleading.— Complaint.— Fraud. — -Facts.— A complaint based upon fraud must directly allege the facts constituting such fraud, p. 460.</p> <p>8. Municipal Coepoeations.— Legislative Acts.— Motives.— Fraud. — Logrolling.—The motives of city councilmen in logrolling to secure certain street improvements, will ordinarily not be inquired into by the courts, such action being legislative in character. p. 460.</p> <p>9. Statutes. — Amendment.—Municipal Corporations. — Street Improvements. — Where street improvements in a city of the fifth class were authorized either by §8710 Burns 1908, Acts 1905, p. 219, §107, or §8959 Burns 1908, Acts 1905. p. 219, §265, it is needless to inquire as to the effect of the act of 1909 (Acts 1909, p. 412) which amended such former section, but continued in force the substantive right under modified terms of procedure, p. 401.</p> <p>30. Appeal.- — Reheariny.— New Questions.— Questions not presented upon íbe origina) hearing of a case on appeal, cannot bo raised on a petition for rehearing, p. 461.</p>

<p>1. Indictment and Information. — Intoxicating Liquors. — Wholesalers. — Sales to Consumers. — Licensed “According to” Law.— An affidavit charging that defendant at a certain time and place, did then and there unlawfully sell to a certain person six gallons of beer for the sum of $2.50, said defendant then and there not having a license to sell spirituous, vinous or malt liquors “according to” the laws of the State of Indiana, is sufficient, the words “according to” the laws being the practical equivalent of the statutory “under” the laws (§8351 Burns 1908, Acts 1907, p. G89, §1). pp. 463,465.</p> <p>2. Indictment and Information. — Purpose.—An indictment sufficient to inform the defendant of the nature of the offense preferred, and to enable the court and jury to know what they are to try, and to make a proper record thereof, is legally sufficient, p. 464.</p> <p>3. Indictment and Information. — Substantially Following Statute. — An indictment which substantially follows the language of the statute is sufficient, p. 465.</p> <p>4. Intoxicating Liquors. — Wholesalers.—Sales to Consumers.— A wholesaler, under §8351 Bums 1908, Acts 1907, p. 689, §1, has no right to sell intoxicating liquor, in any quantity, to a consumer. pp. 465,467.</p> <p>5. Intoxicating Liquors. — •Wholesalers.—Licenses by Cities.— Sales to Consumers. — A wholesaler, licensed as such by a city, to maintain a depot or agency, has no right to sell intoxicating liquor to a consumer, the state law (§8351 Burns 1908, Acts 1907, p. 689, §1) forbidding such sale. pp. 466, 468.</p> <p>6. Statutes. — Municipal Ordinances — Conflict.—A municipal ordinance in violation of a state law is void. p. 466.</p> <p>7. Public Policy. — Legislature.—Courts.—The public policy of the State is determined by the legislature and not by the courts, p. 467.</p> <p>8. Words and Phrases. — “Traffic.”—The word “traffic,” as used in §8351 Burns 1908, Acts 1907, p. 689, §1, providing that a wholesaler of liquor shall be construed to mean “a person, firm or corporation whose sole business in connection with the liquor traffic is to sell,” etc., imports trade, commerce, exchange or sale, and, therefore, a wholesaler may deal in his own manufactures, as well as those produced by others, p. 468.</p> <p>Í). Intoxicating Liquors.- — ■ Breweries.— Charters.— Contracts.— Police Power. — A charter granted to a brewing company to manufacture beer does not give such company a right to the unrestricted sale thereof, the exercise of the police power being inalienable. p. 468.</p>

<p>Prom Superior Court of Tippecanoe County, Henry H. Vinton, Judge.</p> <p>Suit by the Chicago, Indianapolis and Louisville Railway Company against the Railroad Commission of Indiana. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Indictment and Ineobmation. — Presenting False Claim to Board of Public Works. — Under §2586 Burns 1905, Acts' 1905, p. 584, §675, providing that “whoever, knowing the same to be false or fraudulent, makes out or presents for payment * * * to the treasurer, or other accounting officer of any city or town * * * any claim, * * * account, * * * or other evidence of indebtedness * * * for the purpose of procuring the allowance of the same or an order for the payment thereof, out of the treasury of said * * * city or town * * shall, on conviction” be fined and imprisoned, an indictment charging that defendant knowingly presented a false and fraudulent claim for street repairs to the board of public works of a city for allowance, sufficiently charges an offense, although the city controller has a right to disallow an allowance made by such board, p. 490.</p> <p>2. Cbiminal Law. — Presenting False Claim to Board of Public Works. — Indictment and Information. — The crime of presenting a false claim to the board of public works of a city, under §2586 Burns 1908, Acts 1905, p. 584, §675, is complete when the claim is filed, its allowance being unnecessary, and it is not necessary in an indictment to allege that such board is an accounting officer of such city. p. 495.</p> <p>3. Indictment and Ineobmation.— Presenting False Claim.— An indictment alleging that defendant presented a claim to the board of public works of a city for 16,691.9 square yards of street patching and that there was due therefor $11,016.65, when such repairs as actually made were “very much less” than the stated amount, the exact amount being to the grand jurors unknown, sufficiently shows that the claim was false, p. 495.</p> <p>4. Indictment.and Ineobmation. — Sufficiency.—An indictment so framed as to inform defendant of the charge which he is required to mc-et, is sufficiently definite, p. 497.</p> <p>5. Appeal. — Admission of Evidence. — New Trial.- — Where evidence is admitted without objection, no question thereon can be raised on appeal, p. 498.</p> <p>6. Appeal. — New Trial. — Admission of Evidence. — The admission of the particular evidence claimed to have been erroneously admitted must be made a ground for a new trial in order to present any question thereon; on appeal, p. 498.</p> <p>7. Trial. — Instructions.—Applicability to Evidence. — Instructions given should be applicable to the evidence, p. 501.</p> <p>8. Trial.— Instructions.— Applicability. — ■ Evidence.— Presenting False Clamn. — An instruction that an act performed at the request or procurement of defendant is the act of defendant and he is liable therefor, is proper and applicable, where there is evidence tending to show that defendant changed the records of the amount of street patching, knowing that such records would be made the basis of a claim by his company against the city, p. 501.</p> <p>9. Trial. — Instructions.—Bight of.- — Parties have the right to instructions covering the daw applicable to any legitimate view of the evidence which the jury might take. pp. 501,503.</p> <p>10. Trial. — Instructions.—Presenting False Claims. — Principals.— Accessories. — Under a charge that defendant presented false claims for street patching to the board of public works, and there was evidence that he falsified the street inspector’s books and gave them to his company upon which to base the company’s claim for such work, the State is entitled to instructions on the theory that he was a principal in the crime, and also that he was an accessory, the state of the evidence warranting either view. pp. 501, 503.</p> <p>11. Trial. — Instructions.—Misleading.—Presenting False Claim.— An instruction, in a prosecution against defendant for presenting a false claim, that the State must prove that the claim in controversy contained some number of square yards in excess of the number actually done and some amount of money in excess of the sum actually due, that the mere change of figures in the books would not render defendant guilty, but it must be shown in addition “that the claim named' in the indictment was for a quantity in excess of that actually done and for a sum in excess of the amount actually due,” is not misleading, p. 504.</p> <p>12. Trial. — Instructions.—Presenting False Claim. — An instruction that if the jury believes, after considering all of the evidence of every class, given in the case, that the State has failed to prove all or any one of the material allegations of the indictment, he should be acquitted, is not bad on the ground that the indictment charged that defendant presented the false claim, while the proof shows that another presented it, since there was evidence showing that an innocent person presented it at defendant’s solicitation, p. 504.</p> <p>13. Criminal Law.— Indictment.— Evidence.— Presenting False Claim. — Under an indictment against defendant for presenting a false claim to the board of public works, evidence is admissible showing that another presented such claim at defendant’s request ; and it is not necessary to plead the evidence in an indictment. p. 505.</p> <p>14. Indictment and Injtokmation. — Certainty.—No more certainty is required in an indictment under the criminal code than in a pleading in a civil action, p. 506.</p> <p>15. Evidence. — Indictment.—Criminal Law.— Principal.— Accessory. — One charged with a crime is conclusively presumed to know that any evidence admissible to prove such crime may be introduced against him; and if the crime charged is a felony and he is charged as a principal, he may be shown to be an accessory, p. 506.</p> <p>16. Obiminal Law. — Indictment.—Evidence.—Conspiracy.—Where a defendant is charged with the commission of a crime which is not a conspiracy, the State may, without any reference in the indictment to a conspiracy, prove that the defendant conspired with others to commit the offense, p. 507.</p> <p>17. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 511.</p> <p>18. Appeal. — Evidence.—Insufficiency.—In determining the sufficiency of the evidence to sustain a judgment, only that most favorable to the prevailing party will be considered, p. 511.</p> <p>19. Chiminai. Law.— Presenting False Claim.— Evidence.— Evidence showing that defendant contracted with a company to manage its street patching contracts for one-half the net profits, that he falsified the inspector’s books and gave them to his company to be used in making claims for patching, that such patches as claimed far exceeded, in many instances, the full width of the streets patched, that he confessed to certain persons, and that he ran away, registering under an assumed name, supports a conviction for presenting a false claim, p. 512.</p> <p>20. Tbial. — Consideration of Evidence. — Perjury.—Jury.—Whether certain witnesses committed perjury on a trial is a question for the jury. p. 519.</p>

<p>1. Pleading.— Gomplamt: — Railroads.— Highway Grossings. — -A complaint alleging that the public highway between two points crosses a railroad, that the plaintiff undertook to travel over such road at night, that she “was compelled to cross the railroad,” that she had no knowledge whatever of such railroad at the point of crossing, that she was proceeding carefully and that defendant negligently ran its train noiselessly without warning and without giving tlio statutory signals, upon and over the crossing, thereby injuring her, does not show that the plaintiff knew of the crossing, p. 523.</p> <p>2. Railroads. — Highway Crossings. — Contributory Negligence. — It is not negligence, as a matter of law, for a traveler, on a dark, rainy night, knowingly to drive upon a railroad crossing, with his buggy covered, pp. 524, 527.</p> <p>3. Railroads. — Failure io Give Statutory Signals. — Negligence.— The failure of a railroad company to give the statutory signals constitutes negligence per se. p. 524.</p> <p>4. Trial.— Due Care.— Jury.— Railroads.— Highway Crossings.— Whether a traveler used due care in approaching a railroad crossing on a dark, rainy night in a covered buggy, is a question for the jury. pp. 525, 526.</p> <p>5. Railroads. — Highway Crossings. — Ignorance of. — Look and Listen. — A traveler approaching a railroad crossing, on a dark night, and knowing nothing of such crossing, is not required to look and listen, pp. 525, 526, 527, 530, 532.</p> <p>G. Trial. — Burden of Proof. — Contributory Negligence. — Railroad Crossings. — Travelers.—The burden of proving that a traveler injured upon a railroad crossing was guilty of contributory negligence, is upon the defendant, p. 525.</p> <p>7. Railroads. — Highway Crossings. — Failure to Give Signals.— Proximate Cause. — Jury.—Whether the failure of a railroad company to give the statutory signals at a highway crossing, was the proximate cause of an injury to a traveler upon such crossing, is a question for the jury. p. 525.</p> <p>S. Trial. — Questions for Jury. — Questions of fact, and of mixed law and fact, are for the jury. p. 526.</p> <p>9. Pleading. — Complaint.—Railroads.-—Failure of Traveler to Look and Listen. — A complaint for injuries to a traveler upon a railroad crossing need not allege that such traveler stopped, looked and listened, such failure constituting matter for the defense of contributory negligence, p. 527.</p> <p>10. Appeal. — Interrogatories.-—Judgment.—On a motion for judgment upon the answers to interrogatories, the Supreme Court will consider only the complaint, answer, general verdict and such interrogatories and answers, p. 528.</p> <p>11. Trial.— Interrogatories. — ■ Railroads.— Highway Crossings — Answers to interrogatories to the jury showing that the plaintiff approached a railroad • crossing at night in the rain, that the buggy was covered, that the train gave no signal, that plaintiff’s horse became frightened and went upon the track, the plaintiff being injured, do not overturn a verdict for the plaintiff, where the complaint alleged that the plaintiff was ignorant of the crossing, pp, 528, 531,</p> <p>12. Trial.— Instructions.— Misleading.— Damages. — • Personal Injuries. — Railroads.—An instruction that in estimating damages the jury should consider the peril to plaintiffs life is misleading, where the evidence showed that the plaintiff was struck, without warning, and carried 800 feet upon ilie pilot of the locomotive engine, although other instructions correctly informed the jury as to the measure of damages, p. 532.</p> <p>13. Trial. — Instrnotions.—Erroneous.—Owing.—The giving of an erroneous instruction cannot be cured by the giving of others which are correct, p. 534.</p> <p>14. Trial. — ■ Instructions.— Damages.— Considering All Circumstances.- — An instruction that the jury, if it should find for the plaintiff, should “determine the amount which * * * she should receive,” and that the amount should be such sum as the jury should deem a fair and just compensation for her injuries “taking into consideration the circumstances surrounding the plaintiff,” not exceeding the demand, is erroneous, and is not cured by other and correct instructions, p. 534.</p>

<p>Prom Wabash Circuit Court; Hiram Brownlee, Special Judge.</p> <p>Suit by William R. Yarnelle against Ellsworth Ward and others. Prom the decree entered, Ward and others appeal.</p>

<p>1. Constitutional Law. — Class Legislation. — A statute which deals alike with all who are in the same class is not invalid on the ground that it grants unequal privileges and protection, p. 567.</p> <p>2. Constitutional Law. — Classes.—Size of. — Whether the class to which a statute should apply is large or small is a question for the legislature, pp. 567, 572.</p> <p>3. Constitutional Law. — Taxation.—Property Assessable. — What property shall be assessed, and how it shall be taxed, there being uniformity and equality of rate as to the property of the same class, are legislative questions, p. 567.</p> <p>4. Constitutional Law. — Due Process. — Equal Rights. — Class Legislation. — The due process, equal protection, and equal privilege clauses of Article 14, §1, of the federal Constitution do not apply to state tax laws which do not discriminate against particular classes or particular persons, p. 567.</p> <p>5. Constitutional Law. — Non-Enforcement of Statute. — Taxation. —The imperfect enforcement of a statute for the assessment of property does not render such statute unconstitutional, p. 568.</p> <p>6. Taxation. — Corporations.—A ssessment. — Domestic corporations, other than for banking, are assessed by deducting the value of the tangible property from the value of the capital stock, the excess being taxed to the corporation, but if there be no excess, the corporation is assessed only for the tangible property, p. 569.</p> <p>7. Taxation. — Banhs.—Surplus.—The assessed value of real estate belonging to a bank, which real estate is carried on the books as a part of the bank’s surplus, and which is assessed and listed for taxation separately, should be deducted from the value of the capital stock, and the excess only should be charged against the bank. pp. 570, 571, 572.</p> <p>8. Taxation. — Valuation.—Presumption from Amount Invested.— In valuing property for taxation, the presumption, in the absence of other evidence, is that the property is worth the amount which it cost the owner, p. 570.</p> <p>9. Banks. — Power to Hold Property. — Banks organized under the state laws have power to hold real estate for certain defined purposes only, and when taken for debt, can hold it for only five years, p. 571.</p> <p>10. Taxation. — Boards of Bevieio. — Administrative Acts. — Acts of the board of review in deducting the assessed value of the real estate of a bank from the value of its capital stock, are purely administrative, p. 572.</p> <p>11. Appeal. — When Avoidable Constitutional Questions Considered. —'Where the proper construction of a statute involves constitutional questions the Supreme Court may decide same, although the judgment must be reversed on other grounds, p. 573.</p> <p>12. Taxation. — Banlcs.—Surplus.—Beal Property. — A bank which reports for taxation a capital stock of $50,000, a cash surplus of $20,000 (excluding a tract of land costing the bank $14,800, and carried as surplus), and undivided profits of $2,800, should be assessed for taxation on the true cash value of its capital stock, its surplus (exclusive of real estate which is separately reported and taxed), and its profits, p. 573.</p>

<p>Prom Cass Circuit Court; John S. hairy, Judge.</p> <p>Suit by Daniel P. Baldwin against Matthew Moroney, as treasurer of Cass county, and others. Prom a decree for defendants, plaintiff appeals.</p>

<p>Prom Laporte Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by John Larsen, by his next friend, against the W. B. Conkey Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Wills. — ■Contest of. — Parties.—Statutes.—Under §3154 Burns 1908, §2590 R. S. 1881, providing that “any person may contest the validity of any will,” and §251 Burns 1908, §251 R. S. 1881, providing that “every action must be prosecuted in the name of the real party in interest,” any one interested in a will or affected by its probate may contest it. pp. 595, 596.</p> <p>2. Pleading. — Special Statutory Proceedings. — Code.—The civil code of procedure applies, where practicable, to all special statutory proceedings, p. 595.</p> <p>3. Wills. — Devise of Lawful Portion. — Validity.—An heir, to whom a testator devises the precise interest which the devisee would take as an heir, takes by descent and not under the- will, the devise being void. p. 597.</p> <p>4. Wills.- — Devise of Lawful Portion. — Widows.—Descent and Distribution. — A widow to whom her husband devises precisely the portion of his estate which the statutes of descent give to her at his death, takes by descent, though not strictly an heir, and has no interest under the will. p. 597.</p> <p>5. Wills. — Contest.—Complaint.—Defective PaA'iies Plaintiff.— A widow, to whom her husband devised the same interest in his estate that was provided for her by the laws of descent, cannot join as a party plaintiff in an action to contest such will, the devise as to her being void. p. 598.</p>

From Rush Circuit Court; Will M. Sparks, Judge. Highway petition by Chester M. G-eorge and others, against which Johannon M. Amos and others remonstrate. From a judgment for remonstrators, petitioners appeal.

<p>1. Municipal Corporations. — Council.—Correction of Record. — A city council has the right to correct its records so as to make them speak the truth, p. 606.</p> <p>2. Officers. — Offices.—Rights in. — The right to hold a public office is not a property right, but is subject to the protection of the law. pp. 606, 609.</p> <p>3. Municipal Corporations. — Legislative Matters. — Veto Powers. —Statutes. — Vacancies. — Councilmen. ■ — ■ Election of. —■ Under §86o2 Burns 1008, Acts 1905, p. 219, §50, providing that it shall be the dutj>' of the clerk of the city council “to enter ayes and noes on the passage of every ordinance and resolution,” it is not necessary to enter such vote on a “resolution” electing a councilman to fill a vacancy, such “resolution” being ministerial and not being the subject of a veto. City of Logansyort v. Crockett, 64 Ind. 319, distinguished, pp. 606, 608.</p> <p>4. Elections. — Vacancies.—Councilmen.—Correcting Records. — A city council which has elected a councilman to fill a vacancy and has made a record thereof, cannot after the lapse of a year and after the rights of the appointee have been fixed, correct such record so as virtually to set aside such election, pp. 607, 610.</p>

<p>1. Drains. — Judgment.—Gonclusweness of. — Under §6143 Bums 1908, Acts 1907, p. 508, §4, an order approving and confirming the assessments and declaring the proposed work of drainage established, is final and conclusive upon all over whom the court has jurisdiction, p. 612.</p> <p>2. Injunction. — Void Judgment. — Equitable Defenses. — Drains.— A void judgment in a drainage proceeding is subject to injunction, but any equitable defenses may be interposed in such suit for injunction. p. 612.</p> <p>3. Drains. — Judgments.—Relief from. — Excusable Neglect. — Section 405 Burns 1908, §396 R. S. 1881, providing that the court may relieve parties from orders and judgments taken against them through mistake or excusable neglect, has no application to a drainage proceeding, p. 613.</p> <p>4. Drains. — Remonstrances.— Time for Filing.— Extensions.— Courts have no power to extend the statutory time for the filing of remonstrances in drainage cases, p. 613.</p> <p>5. Appeal. — Final Judgment. — Motions to Vacate. — Drains.—An order overruling a drainage remonstrator’s motion to vacate a judgment taken in a drainage case, and for costs, is not appeal-able, there being no appeal taken from the judgment itself, and the court having no power to vacate such judgment, p. 613.</p>

<p>From Dubois Circuit Court; E. A. Ely, Judge.</p> <p>Action by William R. Kerr against the Federal Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901, p. 565, §10.</p>

<p>Prom Superior Court of Marion County (77,294); John L. McMaster, James M. Leathers, Vinson Carter, Clarence E. Weir and Pliny W. Bartholomew, Judges.</p> <p>Action by Alvin W. Dudley against The State of Indiana. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Constitutional Law. — Highways.— Taxation.-— Eminent Domain. — Statutes authorizing the improvement of highways are an exercise of the power of taxation, and not that of eminent domain, and therefore there is no taking of property without compensation. p. 643.</p> <p>2. Constitutional Law. — Due Process.— Highways. — ■ Notice.-— Damages. — Sections 7712, 7718 Burns 1908, Acts 1907, p. 137, Acts 1905, p. 521, §69, providing for notice of a highway proceeding, and for an assessment of damages, constitute such an opportunity for hearing as is required by the due process of law provision of the 14th amendment to the federal Constitution, p. 643.</p> <p>3. Hiqhways. — Control.—Highways are under the ownership and control, direct or indirect, of the State, pp. 644, 649, 656.</p> <p>4. Constitutional Law. — Classification of Cities. — -The legislature has the constitutional right to classify cities by population, in providing for their government, but the classification must not be whimsical nor arbitrary, but must inhere in the subject-matter, pp. 644, 656.</p> <p>5. Constitutional Law. — Public Improvements. — Taxation for.— The legislature in its discretion may provide for the payment for local improvements by taxation of a given district, or by local assessment. p. 645.</p> <p>6. Constitutional Law. — Local or Special Laws. — Legislative Questions. — A law which applies generally to a particular class of cases is not a local or a special law; and whether a statute should be made applicable to a large or small class is a legislative question, p. 645.</p> <p>7. Constitutional Law.— Classification.— Highways. — • Cities.— Section 7712 Burns 1908, Acts 1907, p. 137, providing that “whenever a petition signed by fifty or more freeholders and voters of any township in any county in this State, includes [including] any incorporated town or city in such township having a population of less than thirty thousand inhabitants,” praying for the improvement of any highway, is filed, the proper board of commissioners shall proceed with such case, is not invalid on the ground that it is class legislation. Monks and Jordan, JJ., dissent, p. 646.</p> <p>8. Constitutional Law. — Privileges and Immunities. — Highways. —Section 7712 Burns 1908, Acts 1907, p. 137, providing for highway improvement petitions in any township, including a town or city of less than 30,000 inhabitants, is not class legislation as prohibited by article 1, §23, of the state Constitution, nor an abridge ment of privileges or immunities of citizens of the United States under §1 of the 14th amendment. Monks and Jordan, JJ., dissent. p. 649.</p> <p>9. Words and Phrases. — “Privileges.”—“Immunities.”—The words “privileges” and “immunities” import general, abstract, personal, fundamental rights, p. 649.</p> <p>10. Constitutional Law. — Privileges and Immunities. — The privileges and immunities of citizens protected by the federal Constitution are those arising from the federal Constitution or secured by the federal government, p. 651.</p> <p>11. Constitutional Law. — Equal Privileges. — The rights of citizens of other States while in a particular state, are measured by the rights of the citizens of that State, p. 651.</p> <p>12. Highways. — Meaning of. — Roads and highways are generic terms and include all kinds of public ways. p. 652.</p> <p>13. Highways. — Streets.—A street is a highway, but a highway is not necessarily a street, p. 653.</p> <p>14. Highways. — Streets.—What are. — A street is a public highway ill an incorporated town or city. p. 653.</p> <p>15. Statutes. — Construction.—“Highways.”— Streets.— The word “highways,” as used in §7712 Bums 1908, Acts 1907, p. 137, providing for petitions for the improvement of “highways” in any township, including any town or city of less than 30,000 inhabitants, includes streets in such towns or cities, and this is especially true where such streets are specifically mentioned in later sections of such act. pp. 653, 654.</p> <p>16. Statutes. — Reenactment of, after Judicial Construction. — The reenactment of a statute after it has been judicially construed, impresses the new statute with such construction, p. 654.</p> <p>17. Statutes. — Construction.—Highways.— Materials Used. — Section 7711 Burns 1908, Acts 1905, p. 521, §62, providing for the paving of certain highways, including streets, with “stone, gravel or other road paving material,” is not controlled by the act of 1909 (Acts 1909, p. 353), providing that the materials used in road construction outside of cities and towns shall be of the ordinary kind, and that street paving materials shall be usgd on streets, the inference being that the use of materials was not restricted by the former act. p; 654.</p> <p>18. Statutes. — Construction.—Ejusdem Generis. — The rule of ejusdem generis is not a rule of but an aid to interpretation, p. 655.</p> <p>19. Statutes. — Construction.—Ejusdem Generis. — Application of.— Where the prior specific words of a statute exhaust the class or classes to which they belong, the rule of ejusdem generis does not apply, p. 655.</p> <p>20. Highways. — Paving Material. — • Kinds.— Statutes.— Construction. — Section 7712 Burns 1908, Acts 1905, p. 521, §62, providing tliat certain highways may be “paved with stone, gravel or other road paving material,” does not exclude the use of all other materials besides stone and gravel, p. 655.</p> <p>21. Highways. — Improvement.—Materials.—Discretion of Boards of Commissioners. — Boards of commissioners have the discretionary right to order the construction of all highways less than three miles in length, except those upon which United States mail routes are located, and to select the material to be used (§7719 Burns 1908, Acts 1907, p. 68, §1). p. 656.</p> <p>22. Constitutional Law. — Local and Special. — Highways.—MaM Routes. — The legislature has the constitutional right to require the construction of highways over which rural mail routes are located, such classification being one that inheres in the subject- . matter, p. 656.</p>

<p>1. Appeal. — Time for Talcing. — Final Judgment. — Few Trial.— An appeal must be taken within one year from the rendition of judgment, but where a motion for a new trial is filed within the statutory period after the rendition of judgment, the appeal is properly perfected at any time within one year from the overruling of such motion, p, 658.</p> <p>2. Appeal. — Time for Talcing. — Motions in Arrest of Judgment.— A motion in arrest of judgment does not postpone the time for the taking of an appeal; and such motion is properly made only before the rendition of judgment, p. 659.</p> <p>3. Appeal. — Túrne for. — Few Trial. — Arrest of Judgment. — Where a judgment was rendered on April 30, 1908, a motion for a new trial was overruled on May 1, 1908, a motion in arrest of judgment was overruled February 26, 1909, and the transcript on appeal was filed on May 20, 1909, the appeal will be dismissed, p. 659.</p>

<p>Prom Tippecanoe Circuit Court; B. P. DeHart, Judge.</p> <p>Pinal report of Prank M. Snyder, as administrator of the estate of Peter J. Hengen, deceased, to which the Thieme & Wagner Brewing Company and others except. Prom a judgment in favor of such company and others, the administrator and others appeal. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901, p. 565, §10.</p>

Prom Tipton Circuit Court; Leroy B. Nash, Judge. Drainage petition by Martha A. Hannah and others, against which Matt P. Ross and others remonstrate. Prom a judgment for petitioners, remonstrators appeal.

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Highway petition by Edward Stahley and others, against which Joseph Glendenning and others remonstrate. Prom a judgment for petitioners, remonstrators appeal.

<p>1. Appeal. — Bills of Exceptions. — Date of Signing. — Order-BooJc Entry. — Where an order-book entry shows the presentation for signature and the signing of a bill of exceptions containing the evidence on a certain date, and the bill recites that it was signed by the judge ou such day, the evidence is in the record, p. 685.</p> <p>2. Assault and Battery. — Intent to Kill. — Instructions.—Character. — Consideration of. — An instruction, in a prosecution for assault and battery with intent to commit murder, that if defendant did not act in self-defense, the character of the defendant would make no difference, except as to his credibility as a witness, is erroneous, since character should be considered not only in determining defendant’s guilt of the crime charged, but also in assessing the punishment, p. 686.</p> <p>3. Assault and Battery. — Intent to Kill. — Instructions.—Character. — An instruction, in a prosecution for assault and battery with intent to commit murder, that if the defendant is guilty as charged, the fact that he previously had a good reputation for peace and quietude could not avail him, and that he should be convicted without regard thereto, is erroneous, p. 686.</p> <p>4. Assault and Battery. — Intent to Murder. — Evidence.—Where the evidence shows that the defendant was a small, crippled man. that he was invited by the officers to assist in searching the premises of the prosecuting witness for liquor kept unlawfully, that such .witness violently assaulted him, that such witness was a large, powerful and dangerous man, that defendant, after being knocked down, and while lying on the floor, shot the prosecuting witness, it is difficult to see how defendant could be guilty of any offense unless that of felonious assault, and the character of the parties constitutes an essential part of the ease. p. 688.</p>

<p>1. Statutes.' — Time of Talcing Effect. — Emergency Clauses. — An act containing an emergency clause takes effect immediately after the expiration of the time given by the Constitution for the Governor to consider and veto it. p. 691.</p> <p>2. Statutes. — Practical Construction. — Repeal.—The failure or refusal of Governors to act under, or to enforce, a law does not repeal such law, nor does such action furnish a practical construction of such law. p. 691.,</p> <p>8. Oeficebs. — Estoppel.-—Appointments Under Different Acts.— Statehouse Engineer. — A statehouse engineer appointed under section eleven of the act of 1895 (Acts 1895, p. 859) is not es-topped to claim his office on the ground that he had previously served by appointment under the invalid act of 1897 (Acts 1897, p. 119). p. 691.</p> <p>4. Statutes.— Saving Clauses.— Staiclwuse Engineer.— The last clause of section eleven of the act of 1895 (Acts 1895, p. 359), providing that “nothing contained in this act shall apply to or in anywise affect the office of ‘State House Engineer’ as now established by law, but said office and the manner of electing the incumbent, his duties and compensation remain and continue as now fixed by law,” is a saving clause, and being repugnant to the body of such section is void. p. 692.</p> <p>5. Statutes. — Construction.—Reference to Legislative Journals.— The enrolled bill as authenticated by the presiding officers of the two houses must be conclusively presumed to contain the act as it actually passed the legislature, p. 693.</p> <p>6. Statutes. — Repeal.—Amendments After.- — The act of 1897 (Acts 1897, p. 118), amending the act of 1889 (Acts 1889, p. 114), is void, the latter act having been repealed by the act of 1895 (Acts 1895, p. 359). p. 694.</p>

<p>1. Indictment and Information. — Charging that Decedent Was a Human Being. — Homicide.—An indictment charging that defendant, at a certain time and place, feloniously, purposely and with premeditated malice killed and murdered Mary A. Porter, sufficiently shows that a human being was killed, p. 700.</p> <p>2. Criminal Law. — Bight of Defendant to Inspection of Evidence Before (Grand Jury. — The defendant in a criminal case has no legal right -to an inspection of the evidence given by himself before the grand jury. p. 700.</p> <p>3. Homicide. — Evidence.— Declarations.— Husband’s Illicit Relations .with Other Women. — Motive.—In a prosecution against a husband for the murder of his wife, evidence of declarations of the husband, made two years prior to the alleged murder, of his illicit relations with other women is admissible as tending to show a motive for the alleged murder, p. 700.</p> <p>4. Homicide. — Instructions.—Limiting Application of Evidence.— Duty of Judge. — In a prosecution against a husband for the murder of his wife, evidence of the husband’s declarations of illicit relations with other women having been admitted over his objection, it is the duty of the judge, without a request from defendant, to instruct that such evidence can be considered only on the question of motive, p. 702.</p> <p>5. Homicide. — Evidence.—Illicit Relations. — Motive.—Instructions. —Limiting Consideration of Evidence. — In a prosecution of a husband for the murder of his wife evidence of the relations of the husband with a domestic is admissible as tending to show a motive, but the judge should instruct the jury that such evidence should be considered only for such purpose, p. 703.</p> <p>6. Homicide. — Evidence.—■Defendant’s Declarations of His General Immorality. — Presumption of Prejudice. — In a prosecution for homicide, evidence of defendant’s declarations that he was “ornery,” and that there was nothing too “low down for him to do,” are not admissible, the admission thereof presumably being prejudicial to defendant, p. 703.</p> <p>7. Homicide.— Instructions.— Motive.— Consideration of.— In a prosecution of a husband for the murder of his wife, there being evidence introduced by defendant that the killing was accidental and that his relations with his wife were pleasant, a refusal to give his requested instruction that if the evidence failed to show any motive for the alleged crime, such fact would be a circumstance which the jury should consider in determining its verdict, is erroneous, there being no other instruction presenting such matter, p. 704.</p>

<p>1. Mandamus. — Alternative Writ. — Ashing . Too Much Belief. — ' The inclusion in the mandatory clause of an alternative writ of mandate of a command for greater relief than the relator is entitled to under the allegations of the petition and writ, is fatal on demurrer or motion to quash, pp. 708, 710.</p> <p>2. Mandamus. — State Board of Medical Registration and Examination. — Examination of Applicants. — Certificates.—Issuing of. —An applicant for a license to practice medicine has no right to a writ of mandate compelling The State Board of Medical Registration and Examination to grant to him an examination, and, if successful, to issue to him a certificate requiring the clerk of the proper circuit court to grant to him a license, since under §S405 Burns 1908, Acts 1901, p. 475, §1, such board is required to pass upon certain questions of moral fitness of an applicant, and from its decision therein an appeal lies to the circuit or superior court, pp. 708, 710.</p> <p>3. Mandamus. — Other Adequate Remedy. — Mandamus does not lie where there is another adequate legal remedy, p. 709.</p> <p>4. Pleading.— Insufficient Complaint.— Insufficient Answer.— Demurrer. — Carrying Bach. — A bad paragraph of answer is sufficient for a bad complaint, and a demurrer to such answer should be carried back and sustained to the complaint, p. 710.</p>

<p>1. Embezzlement. — Larceny.—■Differences.—The crime of embezzlement imports that the defendant converted to his own use the property of another that was rightfully in his possession, while larceny imports that the defendant unlawfully took another’s property and converted it to his own use. p. 713.</p> <p>2. Indictment and Ineokmation.— Allegations.— Recitals. — Tho facts constituting a crime must be positively and unequivocally averred, mere recitals being insufficient, p. 713.</p> <p>3. Embezzlement. — Indictment and Information. — Trust Relation. —An indictment for embezzlement must positively allege a trust relation between the defendant and the injured party, and that by reason thereof the defendant obtained possession of the property that he converted, p. 714.</p> <p>4. Embezzlement. — Indictment.—Allegations.—R'ecitals.—• An indictment charging that defendant, “being then and there, an officer, agent and employe” of a certain building and loan association, “then and there had access to, the control and possession of” $700 of its money, and “then and there had access to, control and possession of said sum of money by virtue of, and because of, his then and there being an officer, agent and employe” of said association, and that he feloniously converted such money to his own use, is insufficient, there being a failure to show that defendant as such officer, agent or employe of such association was rightfully in possession of such money, p. 715.</p>

<p>From Superior Court of Marion County (71,237); John L.'McMaster, Judge.</p> <p>Action by Morris M. De Frees against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company and others. From a judgment- for plaintiff, defendant company appeals.</p>

From Jackson Circuit Court; Joseph H. Shea, Judge. Petition by Elton S. Jordan and another for reassessment on account of street improvements, by the City of Seymour. From a judgment for petitioners, the City of Seymour appeals.

From Pike Circuit Court; Frank Ely, Special Judge. Prosecution by the State of Indiana against Ralph Smith. From a judgment releasing the defendant, during good behavior, from the payment of the fine imposed, the State appeals.

From Pike Circuit Court; E. A. Ely, Judge. Prosecution by the State of Indiana against Guy Robinson. From a judgment releasing the defendant, during good behavior, from the payment of the fine imposed, the State appeals.