Volume 174 — Indiana Reports

From Howard Circuit Court; J. F. Elliott, Judge. Suit by James J. Brennan and another against the Indianapolis Northern Traction Company and others. From a decree for plaintiffs and for certain cross-complainants, defendant company and others appeal.

From Lagrange Circuit Court; James S. Dodge, Judge. Drainage petition by Edward L. Prough and others, against which Henry Prough and others remonstrate. Prom a judgment for petitioners, remonstrators appeal.

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Prosecution by The State of Indiana against George McPherson. From a judgment of conviction, defendant appeals.</p>

From Greene Circuit Court; Orion B. Harris, Judge. Highway proceeding by Searl B. Newsom and others, against which Inman H. Fowler and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>From Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Highway proceeding by George O. Pence and others, against which Robert F. Cummins remonstrates. From a judgment for petitioners, remonstrant appeals.</p>

<p>1. Bail. — Criminal Law. — Continuing Recognisances. — Change of Venue. — Statutes.—Under §§1950, 2023 Burns 1908, Acts 1905 p. 584, §§82, 152, providing, respectively, that “a continuing recognizance shall require defendant, to appear * * * from day to day and from term to term * * * until said cause is determined and not depart without leave,” and that “the defendant shall not be required to renew it [the bond] during the pend-ency of the proceedings, unless ordered to do so * * * for cause shown,” a defendant, who has executed a bond requiring him to appear at the next term, and from term to term, is required to appear from term to term not only in his own county, but in any county to which the ease may be sent on a change of venue.</p>

<p>Appeal.— Dismissal. — Moot Questions.— Intoxicating Liquors.— Where an appeal is taken from an order granting a license to retail intoxicating liquors, and the year has expired for which the license was granted, the appeal presents only a moot question, and will be dismissed.</p>

<p>1. Appeal. — Questions Presented. — Decision as to Part thereof.— Res Judicata as to Remainder. — Where an appeal presenting several questions is taken and the decision reversing the judgment below determines a part only of the alleged errors, the conclusive presumption is that the trial court’s ruling on the others was correct. p. 131.</p> <p>2. Appeal. — Rehearing.—Questions not Decided. — Where the court on appeal fails to decide all of the questions presented, the remedy is by a petition for a rehearing, p. 131.</p> <p>3. Trial. — Withdrawing Defense. — Instructions.—Where defendants’ attorneys at the beginning of the trial announced that they would offer no evidence in support of one of their defenses, it is the duty of the court to instruct the jury to find for the plaintiff as to such defense, such announcement, in the absence of a withdrawal, thereof, binding the parties making it. p. 131.</p> <p>4. Appeal. — Agreements during Trial. — Instructions.—How Shown to be Incorrect. — 'Where an instruction says that the defendants announced that they would offer no evidence in support of one of their defenses, and there is no showing by a bill of exceptions that such announcement was withdrawn, nor that the court’s statement was untrue, the objection to such instruction being general, the Supreme Court must presume that such announcement was made, and assertions of counsel to the contrary will be disregarded, since all doubts must be resolved in favor of the action of the trial court, p. 132.</p> <p>5. Tkial. — Failure of Bvidcnce in Support of Defense. — Drains.— Instructions. — A peremptory instruction for the plaintiff on an affirmative paragraph of defense of unequal assessments in a drainage case, in support of which no evidence was given, is not erroneous, p. 133.</p> <p>6. Trial. — Burden of Proving Defenses “or One of Them.” — Instructions. — An instruction that the burden was upon defendants to establish the material facts alleged in their two paragraphs of defense, “or one of them,” is not erroneous on the ground that it compels defendants to prove both defenses, p. 134.</p>

<p>From Superior Court of Allen County; Owen N. Heaton, Judge.</p> <p>Drainage petition by Antoni Biesiada and others, against which William Smith remonstrates. From a judgment for petitioners, remonstrant appeals.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by The State of Indiana, on the relation of George P. McClannahan, against Johiel P. Noftzger, as auditor of Wabash county. From a judgment for defendant, plaintiff appeals.</p>

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by The State of Indiana, on the relation of Fred Kern, against William G. Owens, as auditor of Lawrence county. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Taxation. — Omitted Property. — Fraudulent Transfers. — Plea in Abatement. — In a suit by the State to set aside an alleged fraudulent conveyance made by a nonresident owner with intent to prevent the State from collecting taxes on omitted property of such owner, proper notice of the suit being given as provided by statute (§322 Burns 1908, Acts 1885 p. 155), a plea in abatement alleging that such owner was a nonresident, that he owned no property within such State, that the property alleged to have been fraudulently conveyed was conveyed for the consideration named in the deed, and that the grantee was a nonresident and owned no other property in such State during the period mentioned, is insufficient, p. 148.</p> <p>2. Pleading. — Carrying back Demurrer to Plea in Abatement and Sustaining to Complaint. — A demurrer to a plea in abatement cannot be carried back and sustained to the complaint, p. 149.</p> <p>3. Removal of Causes. — Diverse Citizenship. — Suits by State.— A suit by the State against a nonresident property owner for the collection of taxes on omitted property cannot be removed to the federal court on the ground of diverse citizenship, the State not being a citizen, p. 149.</p> <p>4. Removal of Causes. — Federal Question. — Collection of Taxes on Omitted Property. — A complaint to set aside an alleged fraudulent conveyance and to subject the property conveyed to the lien of taxes on omitted property belonging to such owner, does not present any federal question, p. 150.</p> <p>5. Taxation. — Suits for Collection of Taxes on Omitted Property. —Parties.—State.—The State is a proper plaintiff in a suit to collect taxes on omitted property, p. 150.</p> <p>6. Taxation. — Property Owners. — Personal Liability. — A person owning property on March 1, of any year, is personally liable for the taxes due thereon for such year. p. 150.</p> <p>7. Taxation. — Diens.—Debts.—Creditors’ Suit. — A tax constitutes a debt for which a creditors’ suit will lie, the whole of a person’s tax constituting a lien upon all property owned by such person, p. 150.</p> <p>S. Taxation. — Omitted Property. — Nonresident Otvners. — Notice.— In listing omitted property for taxation, the county auditor is not required to give notice thereof to a nonresident (§10310 Burns 1908, Acts 1897, p. 141, §1). p. 151.</p> <p>9. Taxation. — Situs of Property. — Shares of Stock. — Shares of stock, for the purpose of taxation, are regarded as personal property, and are deemed situate at the domicile of the owner, p. 152.</p> <p>10. Taxation . — Subjects of. — All property, except that which is devoted to municipal, educational, literary, scientific, religious and charitable purposes, is subject to taxation, p. 152.</p> <p>11. Taxation. — Resident Corporations. — Capital Stock. — The capital stock of a resident corporation is taxable to such corporation at. its principal office; and if it has no principal office within the State, then such property shall he listed and taxed at any place in the State where such corporation transacts business, p. 152.</p> <p>12. Constitutional Law.— Interstate Commerce.— Taxation.— Shares of Stock in Nonresident Corporation. — Section 10199 Burns 1908, Acts 1899 p. 491, §1, requiring every person to list for taxation his shares of stock in foreign corporations, is not an invalid discrimination burdening interstate commerce, on the ground that the capital stock of resident corporations is taxed to the corporations themselves and not to the individual owners, such statute imposing no burden upon the importation or sale of such property, p. 153.</p> <p>13. Constitutional Law.— Interstate Commerce.— Taxation.— Where property has left the channels of commerce and has attained a situs in this State, it is subject to taxation as a part of the property within this State, p. 154.</p> <p>14. Constitutional Law. — Unequal Privileges and Immunities.— Taxation. — Shares of Stock in Nonresident Corporation. — Section 10199 Burns 1908, Acts 1899 p. 491, §1, requiring every person to list for taxation his shares of stock in nonresident corporations, does not grant unequal privileges and immunities within the meaning of the 14th amendment to the federal Constitution, on the ground that the stock of resident corporations is taxed to the corporations and not to the individual owners, pp. 155, 157.</p> <p>15. Taxation. — Stock in Corporation Organized within, hut Properly without, this State. — Shares of stock, owned within this State, of a corporation organized within this State but whose property is without the State, are subject to taxation, p. 156.</p> <p>16. Judgment.— Personal.— Nonresidents.— Appearance.— A personal judgment may be rendered against a nonresident in a suit to collect taxes on omitted property, where he pleaded in abatement of the suit, and subsequently appeared and filed a demurrer to the complaint, p. 157.</p> <p>17. Appeal.- — Mandate.—Death.—Where an appellant dies after submission of an appeal, and before a decision, the rendition of a judgment of affirmance will be entered as of the date of submission. p. 158.</p>

<p>1. Venue. — Change of. — Applications for.- — Refusal to Rule on, until Closing of Issues.- — -The trial court has the right to suspend its ruling upon a motion for a change of venue from the county until the issues in the case are closed, p. 160.</p> <p>2. Dismissal and Nonsuit. — Motions for. — Action on, during Pendency of Motion for Change of Venue. — Where a motion to dismiss an appeal from the board of commissioners is sustained, a pending motion for a change of venue from the county need not be ruled on. p. 160.</p> <p>3. New Trial. — Grounds for. — Motions to Dismiss Appeal. — Ruling on, how Assigned. — The sustaining of a motion to dismiss an appeal from the board of commissioners does not constitute a ground for a new trial, and to review such ruling on appeal, it must be assigned as independent error, p. 160.</p>

<p>1. Receivers. — Interlocutory Orders Appointing. — Appeal.—Complaint. — Amendments.—Though an appeal has been taken from an interlocutory order appointing a.receiver, the cause is still pending in the lower court; and such order will not be reversed merely because the complaint does not state sufficient facts to authorize such appointment, since the evidence may show sufficient cause, p. 162.</p> <p>2. Appeal. — Record.—Precipe.—Papers not Included in. — Bills of _ Bxceptions. — Where a precipe calls for . “a transcript of all the record entries made in the case” and for “all the papers and pleadings filed in the case, except bill of exceptions,” the original bill of exceptions included in the transcript and properly certified by the clerk, does not constitute a part of the record and cannot be considered, p. 163.</p>

<p>From Warren Circuit Court; James T. Saunderson, Judge.</p> <p>Suit by David H. Donovan against the Indiana Sand and Gravel Company. From a decree for plaintiff, defendant appeals.</p>

From Jay Circuit Court; John F. LaFollette, Judge. Suit by the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company against the Muncie and Portland Traction Company and others. From a decree for defendants, plaintiff appeals. On motion to strike appellant’s briefs from files in former appeal,

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by Charles F. Galey against the Board of Commissioners of the County of Montgomery. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Indictment and Information. — Clerical Errors. — “Felon" for “Feloniously.” — Wife Desertion. — An indictment charging that defendant “did then and there unlawfully and felon desert his ■ wife,” is sufficient, the word “felon" being evidently a clerical error, the word “feloniously" being supplied therefor, p. 186.</p> <p>2. Criminal Law. — Instructions.—How Made Fart of Record.— Appeal. — Instructions given in a criminal trial cannot he considered on appeal, unless they are brought into the record by a proper bill of exceptions, p. 186.</p>

From Jackson Circuit Court; John M. Lewis, Special Judge. Claim by Frederick J. Scholz against Benjamin P. Schneck, as administrator of the estate of Louis Schneck, deceased. From a judgment for defendant, claimant appeals. (Transferred from the Appellate Court under §1399 Burns 1908, Acts 1901 p. 565, §15.)

<p>1. Mortgages. — Chattels.—Forfeiture.— Foreclosure.— Election.— Where a chattel mortgage upon a publishing plant provides a method of disposing of the property, on default of payment, without resort to the courts, as -well as by foreclosure, the mortgagee may elect to pursue the former method, or foreclose the mortgage in court, p. 198.</p> <p>2. Mortgages.— Trustees.— Notice of Default.— Presumptions.— Where a mortgage provided that, upon default of the mortgagor, a majority in interest of the bondholders might elect to have the whole amount to mature immediately by notifying the trustee in writing of such election, the trustee is not required to take notice of a default until notified, the presumption being that no default occurred, p. 198.</p> <p>3. Mortgages.— Foreclosure.— Trustees.— Bondholders.— A complaint for the foreclosure of a mortgage executed to a trustee to secure the payment of certain bonds to be issued, and for a personal judgment against certain defendants upon a guaranty of certain bonds issued by defendant mortgagor, which fails to allege that any bonds were issued thereafter, or that the guaranty attached to the bonds, was upon bonds issued under such mortgage, is bad, tbe bonds issued pursuant to the mortgage being the primary obligation, and the mortgage being incidental, p. 198.</p> <p>4. Mortgages.— Foreclosure.— Trustees.— Bonds.— Issuance of.-— Presumptions.- — Complaint.-—A complaint alleging that defendant executed a mortgage to the plaintiff, as a trustee, to secure certain bonds to be issued, and praying for a foreclosure of such mortgage, raises no presumption that such bonds were ever executed, and is insufficient, the mortgage in the absence of bonds issued thereunder being ineffective, p. 199.</p> <p>5. Mortgages. — Bonds.—Default.—Election to Talce Advantage of. —Complaint.—A complaint alleging that defendant executed a mortgage to secure certain bonds, that upon a default in the payment of interest, a majority in amount of the bondholders filed a written election with the trustee electing to foreclose such mortgage, as provided for in the mortgage, sufficiently shows an election to enforce such option, p. 200.</p> <p>6. Mortgages. — Maturity. — Optional Provisions. —A mortgagor may stipulate that upon a' certain contingency the mortgage shall become due and payable before the day fixed for such maturity, p. 201.</p> <p>7. Mortgages. — Bonds.—Personal Judgment. — Complaint.—A complaint to recover a personal judgment upon bonds issued pursuant to a mortgage, or upon a stipulation in the mortgage to pay the bonds issued, must set out such bonds, and allege that they were issued in accordance with the provisions of such mortgage. p. 201.</p>

From Laporte Circuit Court; John C. Richter, Judge. Suit by the Grand Trunk Western Railway Company against the City of South Bend and others. From a judgment for defendants, plaintiff appeals. (For decision on appeal to United States Supreme Court, see- U. S. -.)

From Montgomery Circuit Court; Jere West, Judge. Action by The State of Indiana, on the relation of the Lebanon National Bank, against the Board of Finance of Marion Township of Boone County, and others. From a judgment for defendants, plaintiff appeals.

<p>1. Eminent Domain. — Interurban Railroads. — Damages.—Right to Open and Close.- — In an eminent domain proceeding by an interurban railroad company, where the amount of damages is the only question involved, the landowner has the right to open and close. p. 238.</p> <p>2. Evidence. — Admissions.—Ordinarily the admissions of a party are admissible in evidence against him. p. 239.</p> <p>3. Eminent Domain. — Damages.—Contracts to Sell Made by One Joint Defendant. — Evidence.—Admissions.—A written offer by one joint defendant to accept a certain sum for a railroad right of way across lands owned by himself and others jointly, is not admissible in evidence against them in an appropriation proceeding against them jointly, p. 239.</p> <p>4. Evidence. — Admissions of One Joint Defendant. — Cross-Examination. — Impeachment.—A written admission of one joint defendant is not admissible in evidence against the joint defendants, but such defendant may be interrogated on cross-examination concerning it, and if he denies or fails to explain it, it may be admitted in impeachment, p. 240.</p> <p>5. Eminent Domain. — Damages.—Offer by Witness. — Admissibility of, m Evidence.- — In a condemnation proceeding to appropriate an interurban railroad right of way, the company is not entitled to have a witness testify as to what he would be willing to pay for the land after the appropriation, the test of damages being the difference in the fair cash market value before and after the appropriation, p. 240.</p> <p>6. Appeal. — Briefs.—Failure to Point out Evidence Supporting Questioned Instructions. — -Where appellant fails to point out evidence showing the applicability of refused instructions, they will be presumed to be inapplicable to the evidence, p. 241.</p> <p>7. Eminent Domain. — Interurban Railroads. — Rights of Way.— Fencing. — Crossings.—Instructions.—Instructions in an interurban right of way condemnation proceeding that in estimating the damages, the company’s failure to fence should not be considered, and the obligation upon the landowners to put in gates at the farm crossings should be considered, are correct, p. 241.</p> <p>8. Eminent Domain. — Interurban Railroads. — Damages.—Burden of Proof. — Instructions.—Harmless Hirer. — In an interurban right of way condemnation proceeding, 'whore both parties excepted to the award of damages, an instruction that the company has the burden to prove that the damages were excessive, the amount of the award, however, being unknown to the jury, is rendered harmless by another instruction given immediately afterward, that the landowners could recover only the amount of damages that had been shown by a fair preponderance of the evidence, pp. 242, 243, 244.</p> <p>9. Eminent Domain. — Interests Appropriated. — In exercising the right of eminent domain a party may probably leave in the owner certain rights and privileges in the land not inconsistent with the use to be acquired, p. 242.</p> <p>10. Eminent Domain. — Interurban Railroads. — Damages.—Promissory Obligations as to Farm Crossings. — Instructions.—An instruction, in an interurban railroad condemnation proceeding, that the jury might take into account any stipulations in the articles of appropriation for the company’s construction of ihe necessary farm crossings, is erroneous in favor of the company, no reduction of damages being permissible therefor unless such stipulations have been accepted, p. 243.</p> <p>.11. Eminent Domain. — Award of Damages. — lO.vceptions.—Appeal. —Trial.—The filing of proper exceptions to au award of damages in an eminent domain proceeding vacates the award, and brings the case before the court for a trial de novo, the jury having no right to know of such award, p. 243.</p> <p>12. Eminent Domain. — Interurban Railroads. — Damages.—Farm Crossings. — Rxpenscs of.— Speculative.— Instructions.— An instruction, in an interurban railroad condemnation case, that in estimating the landowners’ damages the jury might consider the obligation upon snob landowners to erect and maintain gates in the liues of fences across such right of way, and to keep them securely fastened, as required by statute, does not authorize speculative damages, though there was no direct evidence on the subject, p. 244.</p>

<p>From Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Highway proceeding by Stanley Russey and others, against which Grant Isanogle and others remonstrate. From a judgment for petitioners, remonstrants appeal.</p>

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Roswell O. Johnson against Christian Amacher and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Allen Circuit Court, E. O’Rourke, Judge.</p> <p>Prosecution by The State of Indiana against Herman Miller. From a judgment of conviction, defendant appeals,</p>

<p>From St. Joseph Superior Court; Vernon W. VanFleet, Judge.</p> <p>Prosecution by The State of Indiana against William Fleming. From a judgment of conviction, defendant appeals.</p>

<p>1. Venue. — Change of.- — Arson.—Appeal.—The granting of a change of venue from the county in an arson case is discretionary with the trial judge, and his decision thereon will not ho disturbed on appeal, except for an abuse of discretion, p. 278.</p> <p>2. Venue. — Change of. — Denial of. — Discretion.—Arson.—Where defendant in au arson case filed her affidavit for a change of venue from the county, alleging prejudice of 'the people against her, and ilie State filed the affidavits of thirty disinterested residents that no prejudice existed, no abuse of discretion is shown in the court’s denial of the change requested, p. 278.</p> <p>3. Juey. — Voir Dire. — Relationship of Member to Witness for Slate. — Waiver.—Appeal.—Where one of defendant’s attorneys filed his affidavit that a certain juror was a cousin to one of the principal witnesses l'or the State, and that the defendant, on that ■account, had not received a fair trial, and that neither the defendant nor her attorneys knew thereof, and knowledge of the relationship was denied uuder oath by.the defendant and by each of her attorneys, but the accused juror, six of his associates, the sheriff and two others testified that such juror disclosed such relationship on his voir dire, the trial court’s denial of the motion for a new trial cannot bo disturbed on appeal, p. 279.</p> <p>4. Appeal. — Briefs.—Waiver.—Points not presented in the brief proper nor referred to under the head of points and authorities, are waived, p. 279.</p> <p>5. Arson. — Insurance.—Evidence of. — Evidence that the lessee of a hotel budding carried insurance on her furnishings, and shortly prior to the fire .applied for more, is admissible as tending to show a motive, p. 280.</p> <p>6. Arson. — Other Fires. — Evidence.—In a prosecution of a lessee hotel keeper for burning 1hc hotel building, evidence of other fires occurring in the hotel within four or five months, with attendant circumstances indicating incendiarism, is admissible. p. 280.</p> <p>7. Arson. — Acts of Conspirator. — Evidence.—The acts of an alleged confederate prosecuted jointly with defendant for arson, are admissible against defendant, p. 280.</p> <p>S. Trial. — Reception of Evidence. — Order of. — The order of the reception of evidence is largely a matter of discretion of the trial court, p. 280.</p> <p>9. Evidence. — Offer of Proof. — Appeal.—Where, upon objection to certain evidence, no offer of proof was made, no question is saved on the exclusion thereof, p. 280.</p> <p>10. Criminal Law. — Instructions.—Bills of Exceptions. — Filing.— Itoio Shoion. — Appeal.—instructions in a criminal case can be made a part of tbe record, on appeal, only by a bill of exceptions duly presented to tbe trial judge within the time limited therefor, and tbe signing and filing thereof with the clerk, and the filing must be shown by an order-book entry, p. 281.</p> <p>VI. Arson. — Evidence.—Sufficiency.—Evidence showing that a hotel had caught fire three times under suspicious circumstances, and the last time it had caught in a locked gambling room, apparently from an explosion of gasoline, with the knowledge and connivance of defendants, that the furniture was insured for more than its value and that more insurance had been applied for, sustains a judgment of conviction. p. 281.</p> <p>12. Trial. — Credibility of Witnesses. — Jury.—The jury is the judge of the credibility of the witnesses in a criminal case, and their verdict on conflicting evidence is conclusive, on appeal, p. 284.</p> <p>13. Arson. — Leasehold Properly. — Ownership.—Variance.— Proof that defendant had the burned property in possession as a tenant does not constitute a variance from the allegation in the indictment alleging that the property was that of the lessor, p. 284.</p>

<p>1. Homicide. — Presumption of Innocence. — Overcoming.—Instructions. — An instruction in a homicide case that the defendant is presumed to be innocent, and that such presumption follows him throughout the trial unless overcome by evidence of guilt beyond a reasonable doubt, is correct, p. 286.</p> <p>2. Trial. — Instructions.—Applicability to Evidence. — Instructions requested which are not applicable to the evidence should be re* fused, p. 286.</p> <p>3. Homicide. — Killing.—Effect of, Considered alone. — Instructions. —In a prosecution for homicide, the evidence tending to show that defendant, after quarreling with decedent, went home, secured a knife, returned, started a quarrel and killed decedent, an insiruclion that if the jury should find beyond a reasonable doubt that defendant killed the decedent, that fact alone would not justify a verdict of guilty, was properly refused, p.287.</p> <p>4. Tbial. — Instructions.—Duplication.—It. is not erroneous to refuse instructions already covered by those given, p. 287.</p> <p>3. Homicide. — Self-Defense.—Instructions.—An instruction, in a homicide case, that if decedent assaulted defendant in such a manner as reasonably to warrant defendant in believing himself to be in imminent danger of death, or great bodily harm, and he did so believe, he might immediately use reasonably necessary force to repel such assault, and if death followed, defendant would not he guilty of an unlawful homicide, is not erroneous, p. 288.</p> <p>O. Homicide. — Verdict.—Unanimity of Jurors. — Instructions.—An instruction, in a homicide case, that if, after conferring with the other jurors, any one entertains a reasonable doubt of defendant’s guilt, he cannot properly consent to a verdict of guilty, is not prejudicial to defendant. - p. 288.</p> <p>7. Homicide. — Wounds.—Death from Want of Medical Assistance. —Instructions.—An instruction that if defendant inflicted wounds upon decedent, that such wounds were not necessarily fatal, that if decedent died because of want of medical attention, and that no other cause intervened, defendant would be guilty to the same extent as. though decedent had died immediately, is correct, p. 289.</p> <p>8. Homicide. — Use of Deadly Weapon. — Presumptions.—Instructions. — An instruction, that if a mortal wound was inflicted, by defendant, with a deadly weapon, in his previous possession, without any, or upon very slight provocation, such assault is prima facie presumed to be wilful and premeditated, is properly given, where the evidence shows that, after a saloon quarrel, defendant hastened home, secured a knife, returned, renewed the ■quarrel and mortally wounded decedent, p. 290.</p> <p>9. Homicide.— Use of Deadly Weapon.— Inferences.— The intent to kill may he inferred from the voluntary use of a deadly weapon; and if death ensues, the homicide is prima facie wilful and premeditated, p. 290.</p>

<p>1. Receivers. — Appointment.—Adequate Legal Remedy. — A receiver will not be appointed, where the plaintiff has a legal remedy as adequate, effective and efficient as the appointment of a receiver, p. 293.</p> <p>2. Receivers.— Appointment.— Exhausting Legal Remedy.— The plaintiff is not required to exhaust his apparent legal remedy before applying for a receiver, evidence that the legal remedy is not'adequate, or would be ineffectual, being sufficient, p. 294.</p> <p>3. Receivers. — Appointment.—Adequate Legal Remedy. — Indemnifying Bonds. — Evidence.—In a suit by one partner for the appointment of a receiver for the store in dispute, a bond given by the other partner for a temporary restraining order in a suit by defendant to enjoin plaintiff from participating in the store, does not afford to the plaintiff an adequate remedy, p. 294.</p> <p>4. Injunction. — Bonds.—Damages.—In a suit to enjoin defendant, who claimed to he a partner, from participating in the conduct of a store, a bond given for a temporary restraining order covers all damages caused by defendant’s exclusion from the business, p. 294.</p> <p>5. Receivers. — Partnership.—Accounting.—In a suit for a dissolution of a partnership, for an accounting and for the appointment of a receiver, the plaintiff being excluded from any participation in the conduct of the store alleged to be jointly owned by plaintiff and defendant, the court may properly appoint a receiver to take charge of the property pending the determination of the suit. p. 295.</p>

<p>From Delaware Circuit Court; J. G. Leffler, Judge.</p> <p>Drainage proceeding by Grant C. Hinton and others, against which Liberty Ginn remonstrates. From a judgment for petitioners, remonstrant appeals.</p>

<p>1. Mechanics’ Liens. — Railroads.—Repairs on Contractor’s Locomotive Engine. — One who furnished repairs and performed labor in repairing a railroad contractor’s locomotive engine during the years 1905 and 1906, was not entitled to a mechanic’s lien on the railroad company’s property therefor, p. 306.</p> <p>2. Contracts. — To Pay Debts of Third Persons. — Waiver of Diens. —Complaint.—A complaint alleging that the plaintiff furnished labor and materials for the locomotive boilers belonging to a contractor who was constructing the defendant railroad company’s tracks, that he was about to file a lien upon the property of the railroad company and to attach the contractor’s property, that defendant company requested that no lien be filed, or judgment be taken, that it would pay the debt at a specified time, and that it afterward refused so to do, states a cause of action, p. 307.</p> <p>3. Contracts.— Breach.— Waiver of Right to File Lien.— Railroads. — Contractor’s Debts. — Evidence.—In an action for breach of an alleged contract by a railroad company to pay a claim for labor and repairs to a locomotive engine belonging to a contractor who was constructing the company’s track and which was executed to avoid the filing of a lien against the company and to prevent an action against the contractor, evidence of the claim against the contractor, and that the company’s construction engineer asked the plaintiff the amount of the claim, a letter from plaintiff to the engineer stating that the draft on the contractor was dishonored, and asking if the company intended to pay the claim, and the engineer’s letter stating that “this company expects to settle all bills of the [contractor], not later than Wednesday, February 21. We do not desire any judgments or liens upon the work,” fails to sustain a judgment for the plaintiff. p. 308.</p> <p>4. Contracts. — Dncommunicated Mental Conclusions. — In order that the mental conclusions of a party to a contract shall become a part of the contract they must be communicated to the other party, p. 309.</p> <p>5. Contracts. — Letters.—Threats of Collection of Debts. — Presumptions.— Railroads.— Where a person had furnished labor and repairs to a railroad construction contractor for his locomotive engine, and after such person was called by the railroad construction engineer and asked the amount thereof, the claimant’s letter to the construction engineer that his draft on the contractor had been dishonored, and further stating: “After your telephone conversation yesterday in regard to the same, would like to know if your company is going to settle this account. If not, must proceed to collect the same,” raises no presumption that a lien would be filed against the railroad company, and the engineer had a right to presume that the collection would be wholly from the contractor, p. 309.</p> <p>6. Contracts. — “Expects to Settle All Bills.'' — Payment.—A letter from the construction engineer of a railroad company to a claimant of the contractor constructing its track, that the railroad company “expects to settle all bills” of the contractor, does not import that the company expects to “pay” such bills, p. 309.</p> <p>7. Principal and Agent. — Railroads.—Construction Engineer.— Authority. — An “assistant engineer” of a railroad company who has “charge of the construction work which was being done oil the contract of the company and had charge and authority to settle the accounts and all matters growing out of that contract,” has no authority to agree to pay a person who furnished labor and repairs for the contractor’s locomotive engine used in such construction, p. 310.</p> <p>8. Contracts. — Consideration.—Payment of Debts of Third Persons. — Waiver of Right to Sue. — A written promise of a railroad company to “settle all bills” of a contractor for the construction of its track, if no “judgments or liens upon the work” were taken is not supported by any consideration where the claimant waived his right to pursue the contractor, the result being a loss of the claim, p. 310.</p>

<p>1. Appeal. — Vacation.—Abandonment of Term-Time Appeal.-Where an appellant files the necessary bond within the time for taking a term-time appeal, but fails to file the transcript wiihin the statutory time thereafter, the appeal taken will be considered, as a vacation appeal, p. 312.</p> <p>2. Appeal. — Adding New Parties to Assignment of Errors after One Year. — The Supreme Court has no power to permit an amendment of the assignment of errors so as to add new parties thereto •after the expiration of the year during which the appeal could lawfully be taken, p. 313.</p> <p>3. Appeal. — Assignments of Errors. — Caption.—The full names of all the necessary parties to the judgment appealed from, should be set out in- the caption to the assignment of errors, but where the parties omitted from the caption, as separate appellants file separate assignments under their names, they will be considered as appellants, pp. 313, 314.</p> <p>4. Pleading. — Demurrers.—Separate.—A demurrer alleging that “the defendants * * * demur separately and severally” to the complaint, constitutes a separate and several demurrer, p. 314.</p> <p>5. Mandamus. — Disannexing Land from Town. — Complaint.—A complaint to compel a town board to disannex certain described land from the town must allege that at least one of the boundary lines thereof coincides with the corporation line of the town (§8914 Burns 1908, Acts 1907 p. 617, §7). p. 315.</p> <p>G. Mandamus. — Complaint.—Essentials.—A complaint in mandamus must show a clear legal right in the plaintiff, an imperative duty on defendants to do the desired act, and that there is no other adequate legal remedy, p. 315.</p>

From Pike Circuit Court; John L. Bretz, Judge. Application to retail intoxicating liquors by John E. Kunkle, against which John W. Coleman and others remonstrate. From a judgment for remonstrants, the applicant appeals.

<p>From Superior Court of Marion County (75,473); P. W. Bartholomew, Judge.</p> <p>Action by John Best against Judson Harmon, as receiver of the Cincinnati, Hamilton and Dayton Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From Daviess Circuit Court; H. Q. Houghton, Judge.</p> <p>Suit by Joseph I. Gordon against Lucian F. Corning and others. From a judgment for defendants, plaintiff appeals.</p>

From Ripley Circuit Court; Francis M. Thompson, Judge. Action by Mary A. Starks, as administratrix of the estate of Francis M. Starks, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals. (Transferred from Appellate Court under §1394 Burns 1908, Acts 1901 p. 565, §10.)

From Parke Circuit Court; Gould G. Rheuby, Judge. Action by Henry Roberts, as guardian of Frank Roberts, a minor, against the Terre Haute Electric Company. From a judgment on a verdict for plaintiff for $2,500, defendant appeals. (Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, §10.)

<p>From Boone Circuit Court; Meade Vestal, Special Judge.</p> <p>Action by The State of Indiana, on the relation of George Good, against Charles C. Howard, as trustee of Marion School Township of Boone County, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by Fred S. Case against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal. — Jurisdiction. — Constitutional Question. — Where a question of constitutional law is involved in an appeal, jurisdiction of such appeal is in the Supreme Court, p. 383.</p> <p>2. Constitutional Law. — Citizens.—Coi'porations.—A corporation is not a citizen within the meaning of section one of the 14th amendment to the federal Constitution, relating to the abridgement of the privileges and immunities of citizens, and such privileges and immunities relate wholly to those conferred by the federal government, p. 383.</p> <p>3. Constitutional Law. — Federal Privileges and Immunities of Citizens. — Under the 14th amendment to the federal Constitution guaranteeing equal privileges and immunities, a citizen is not given the right to enjoy, within his state, the privileges granted by another state to its citizens; nor has he the right to enjoy, in another state, the privileges granted him in his state, p. 384.</p> <p>4. Contracts. — Lex Loci Contractus. — Lex Solutionis. — Estoppel. —Plea in Abatement. — Special Findings. — Where defendants pleaded in abatement to an action for goods sold and delivered under a written contract, that the contract was executed in Indiana to be performed in Canton, Ohio, they are estopped to contend that such contract was an Indiana contract; and a failure of the special findings to show that suc-h contract was an Indiana contract is fatal to a judgment for defendants on such plea, p. 384.</p> <p>5. Corporations. — Foreign.—-Right to do Business in State. — Statutes. — Repeal.—Sections 4099, 4101, 4102 Burns 1908, §§3023, 3025, 3026 R. S. 1881, providing the requirements for foreign corporations that desire to transact business in this State, were probably repealed by §§4089, 4094 Burns 1908, Acts 1907 p. 286, §§2, 9. pp. 385, 387.</p> <p>6. Corporations. — Foreign.—Transaction of Business. — Conditions Precedent.—Sales by Traveling Salesmen.—Section 4086 Burns 1908, Acts 1907 p. 286, §2, providing that when a foreign corporation desires to transact business within this State for profit, or to exercise any corporate powers, it shall conform to certain requirements, does not apply to business transacted by a traveling salesman in taking orders, in this State, in the usual manner for goods manufactured and sold, by a foreign corporation, to be delivered without the State, p. 385.</p> <p>7. Corporations.— Foreign.— Conditions Precedent to Transaction of Business. — Statutes.—The State may impose conditions precedent upon the right of a foreign corporation to transact business within its territory, p. 386.</p>

<p>1. Municipal Corporations. — Statutes. — Codification of. — The cities and towns act of 1905 (Acts 1905 p. 219) was an attempt to codify all of the laws on the subject of municipal corporations, p. 390.</p> <p>2. Statutes. — Repeal.—“Purview.”—Preanible.—The “purview” of an act imports the enacting part thereof as distinguished from the preamble, p. 391.</p> <p>3. Statutes. — Repeal by Implication. — Where a new statute entirely covers the subject-matter of the old, or is repugnant to it, the latter is impliedly repealed, p. 391.</p> <p>4. Municipal Corporations. — Appointment of Police. — Mayor.— Council. — Statutes.—Section 8791 Burns 1908, Acts 1905 p. 219, §170, providing- that, in cities of the fifth class, policemen shall be appointed by the city councils, or by committees appointed by ordinance, repeals §3541 Burns 1901, subd. 8. Acts 1895 p. 180, §53, providing that city councils shall have the power, by ordinance, to authorize the mayor to appoint policemen, and all ordinances passed under the latter statute are consequently repealed. pp. 391, 392, 393.</p> <p>5. Municipal Corporations. — Powers.—Cities have only such powers as are expressly granted, or necessarily implied, from the powers granted, p. 392.</p> <p>6. Municipal Corporations. — Ordinances.—Public Policy. — Municipal ordinances, which are contrary to the spirit or general policy of the statutory laws of the Hi ate are void as against the public policy of the State, p. 392.</p> <p>7. Municipal Corporations. — Statutes.—Implied Powers of Mayors. — Police.—Section 8682 Burns 1908, subds. 1, 5, Acts 1905 p. 219, §80, requiring the mayors of cities to enforce city ordinances, as well as the laws of the State, does not. impliedly authorize such mayors to appoint policemen, p. 393.</p> <p>8. Municipal Corporations.'--Powers.- Vurryiny out. — Stalule.— Mayors. — Police.—Section 8965 Burns 1908, Acts 1905 p. 219, §270, providing that where no method is provided iii such act for the carrying out of any power conferred, and a method is prescribed by some other law of the State, such method shall be followed, does not authorize a mayor of a fifth class city to appoint police, since a method of appointment is prescribed in such act. p. 393.</p> <p>9. Municipal Corporations. — Invalid Ordinances. — Estoppel.—The fact that a city of the fifth class employed and paid a policeman for services performed under an appointment under an invalid ordinance, does not estop such city afterward from denying the invalidity of such ordinance, p. 394.</p> <p>10. Estoppel. — Knowledge of Facts. — No estoppel arises where both parties know the facts, p. 394.</p> <p>11. Officers. — Performance of Duty. — Presumptions.—The presumption is that officers have done their duty. p. 394.</p>

<p>1. Witnesses. — Impeachment,—Collateral Matters. — Cross-Examination. — Evidence.—Where a witness is asked, on cross-examination, certain collateral and immaterial yucstions for the purpose of laying ground for an impeachment, the cross-examining party is bound by the witness’s answers, and cannot introduce evidence to show that the answers were false, p. 390.</p> <p>2. Homicide. — Evidence of Commission of, by Another. — Bloodhounds. — In a prosecution for homicide, an objection by the State to evidence offered by defendant that a certain other xierson had bought a box of cartridges of the size used in the commission of the murder, and that bloodhounds liad trailed to such person’s house, should he sustained, there being no promise of other evidence to sustain the accusation against such person, p. 398.</p> <p>3. Indictment. — Homicide.—An indictment for murder, charging that defendant purposely, feloniously, and with premeditated malice, killed decedent, is sufficient, p. 399.</p>

<p>1. Negugenoe. — Complaint.—A complaint for negligence must show (1) a duty owing from the defendant to the plaintiff, (2) a breach of such duty by defendant, and (3) proximately resulting injury to the plaintiff, p. 403.</p> <p>2. Negligence. — Breach of Duty. — Iiow Shoton.- — Complaint.—A complaint for negligence must state tbe facts from which a duty from defendant to plaintiff arises, and then tbe violation of such duty may be shown by a general allegation that defendant negligently performed, or failed to perform, such duty. pp. 403, 406.</p> <p>3. Master and Servant. — Safe Place. — Elevators.—Safety Devices. —The owner of a factory is under no absolute statutory or common-law obligation to provide safety devices for freight elevators, pp. 403, 404.</p> <p>4. Master and Servant. — Elevators.—Use of. — Passengers.—Care. —Employes using the freight elevators in a factory in performing their work are not passengers, and the master is required to use only ordinary care in regard to such elevators, p. 404.</p> <p>5. Master and Servant. — Machinery Used. — Care.—Masters are not required to use the latest and most improved machinery, ordinary care in selecting and maintaining machinery and appliances being tbe test. p. 404.</p> <p>O. Master and Servant. — -Freight Elevators. — Safety Devices.— Factory owners are not required to maintain safety devices on freight elevators unless ordered to do so by the factory inspector (§8025 Burns 1908, Acts 1899 p. 231, §5). p. 405.</p> <p>7. Master and Servant. — Freight Elevators. — Safety Devices.— Failure to Furnish. — -Complaint.-—A complaint against a factory owner on the ground of a failure to furnish safety devices for a freight elevator which plaintiff was required to use in his work, must show that such devices were required by the factory inspector, p. 406.</p> <p>8. Municipal Corporations. — Ordinances.— ’Validity. — Control Over Freight Elevators.—Neither §§8025, 8045 Burns 1908, Acts 1899 p. 231, §§5, 25, which do not authorize cities or towns to pass any ordinances, nor §8655 Burns 1908, cl. 23, Acts 1905 p. 219, §53, empowering cities to pass ordinances “to authorize and require the inspection and licensing of steam boilers and elevators, and to prohibit their use when unsafe or dangerous or when used without a license,” authorizes Ihe passage of an ordinance requiring that “every elevator car or platform, cable-hoisted, that runs on guides shall be provided with an approved safety device which will prevent the car from falling in case the cables break or the machinery breaks or gets out of order.” p. 406.</p> <p>O. Municipal Corporations. — Implied Powers. — Regulating Use of Freight Elevators. — Cities have no implied powers to require the use of safety devices on freight elevators, p. 407.</p> <p>30. Master and Servant. — Elevators.—negligent Construction.— Time to Repair. — Complaint.—A complaint alleging that the master “negligently constructed, erected and maintained an elevator or hoist In said factory,” does not need to allege that defendant had knowledge of the defect a sufficient length of time before the servant’s injury to repair such defect, p. 408.</p> <p>11. Master and Servant. — Defective Machinery. — notice.—Assumption of Risk. — Complaint.—A complaint alleging that the plaintiff had “no knowledge of the unsafe and dangerous condition of said elevator,” shows that the plaintiff had neither actual nor implied notice of the defect, and negatives the assumption of the risk thereof, p. 409.</p> <p>12. Master and Servant. — Elevators.—Safety Devices. — notice.— Contributory negligence. — Complaint.—A complaint alleging that, the plaintiff in the performance of his duties used defendant’s freight elevator, that he knew only how to stop and start it, that defendant negligently failed to provide it with a safety device, that defendant knew thereof and the plaintiff did not and that because thereof the cage fell, to plaintiff’s injury, shows that plaintiff did not know of such defect, and that he was not guilty of contributory negligence, p. 410.</p> <p>13. Pleading. — Motions to Malee More Specific. — Joint.—Where a complaint contained four paragraphs, a motion to require the plaintiff “to make his complaint more specific in each of the following respects,” setting out four specifications, is joint, and subsequent language attempting to make it several does not change it. p. 410.</p> <p>14. Pleading. — Motions.—Joint.—A joint motion to make several paragraphs of the complaint more specific should be overruled unless the motion is well taken as to all. p. 410.</p> <p>15. Trial. — Instructions.—Weight of Evidence. — number of Witnesses. — An instruction that the weight of evidence, under certain. cimunsl nuces, might be determined by the number of witnesses, should not be given, p. 411.</p>

From Delaware Circuit Court; Joseph G. Leffler, Judge. Action by William H. Foland against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, §10.

From Henry Circuit Court; Douglas Morris, Special Judge. Action by Katherine L. Murphey against William H. Murphey, as executor of the last will of George R. Murphey, deceased, and others. From the judgment rendered, said executor appeals.

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by James W. Ramsey and others against Joseph P. Hicks and others. From a judgment for defendants, plaintiffs appeal. Transferred from Appellate Court (see 44 Ind. App. 490) under §1394 Burns 1908 subd. 2, Acts 1901 p. 565, §10.

<p>Highways. — Gravel Roads. — Appeals from Boards of Commissioners. — A landowner remonstrating for damages against the establishment (§7719 Burns 1908, Acts 1907 p. 68, §1) of a “three mile” gravel road over his farm, and whose remonstrance was dismissed by the board, has a right of appeal to the circuit court (§7793 Burns 1908, Acts 1905 p. 521, §123).</p>

<p>From Hancock Circuit Court; Earl Sample, Special Judge.</p> <p>Prosecution by The State of Indiana against the United States Board and Paper Company. From a judgment of conviction, defendant appeals.</p>

<p>From Howard Circuit Court; L. J. Kirkpatrick, Judge.</p> <p>Prosecution by The State of Indiana against Larry Ryan. From a judgment of conviction, defendant appeals.</p>

<p>1. Appeal. — Briefs.—Waiver.-—Points not discussed are waived, p. 481.</p> <p>2. Tbial. — Verdict.—Interrogatories.—Where answers to interrogatories to the jury are in irreconcilable conflict with the general verdict on material matters, the general verdict must be disregarded. pp. 481, 482.</p> <p>8. Tbial. — Verdict.—Interrogatories.—If the answers to the interrogatories to the jury show that there is no evidence to sustain a fact essential to plaintiff’s recovery, a general verdict for plaintiff cannot stand, p. 481.</p> <p>4. Tbial. — Interrogatories.—Ansioer of “No Evidence.” — An answer of “No evidence” to an interrogatory to the jury is a finding against the party having the burden of proof on the fact inquired about, p. 481.</p> <p>5. Negligence. — Oiled Floors. — Interrogatories.—Answer of “Wo Evidence.” — Conflict.—The answer of “No evidence” to an interrogatory to the jury asking whether the defendant mercantile company, at the time the plaintiff slipped and fell in defendant’s store, knew that the floor was “oily, greasy, slick, slippery and dangerous to walk upon,” does not overthrow a general verdict for the plaintiff, where other answers and the evidence show that defendant placed the oil on the floor, the answer evidently intending to negative knowledge of the danger, p.482.</p> <p>O. Negligence. — Interrogatories. — Notice. — Actual. — Constructive. — A finding with respect to knowledge of a defect ordinarily includes both actual and constructive, p. 482.</p> <p>7. Witnesses. — Competency. —• Waiver. — Physicians.—Physicians are not competent witnesses as to matters learned in the course of professional duty, but the patient may waive the ineompetency and permit the physician to testify, p. 483.</p> <p>8. Trial. — Argument to Jury. — Comment on Failure of Plaintiff to have Physician Testify. — Counsel for defendant in their argument to the jury, have no right to comment adversely on the fact that the plaintiff failed to have her physician testify. City of Warsaw v. Fisher, 24 Ind. App. 46, disapproved, p.483.</p> <p>9. Negligence. — Oiled Floors. — Custom.—Evidence.■—In an action by a customer against defendant mercantile company for damages sustained by falling upon defendant’s oiled floor, evidence that the floor dressing used by defendant was the kind commonly used in other stores, that defendant had used.such dressing several years, and that no similar accident had occurred, is admissible, though not conclusive on the question of freedom from negligence. pp. 484, 485, 486, 490, 492, 494.</p> <p>10. Negligence. — Care Required. — Mercantile Company and Customer. — A mercantile company is required to use ordinary care to keep its floors in safe condition for the use of its customers, p. 485.</p> <p>11. Negligence. — Contributory.—When Declared by Court. — Where a person charged with contributory negligence shows that he used ordinary care, the court can say as a matter of law that he is not guilty of contributory negligence, p. 486.</p> <p>12. Master and Servant. — Care.—Assumption of Risk. — A servant assumes the ordinary risks of his service, and the master is required to exercise ordinary care for the safety of the servant, p. 486.</p> <p>13. Witnesses. — Competency.—Superintendent of Gymnasium and Orthopedic Institute. — The superintendent of a gymnasium and orthopedic institute, who is not a licensed physician, is a competent witness as to any fact learned in his business, pp. 488, 494.</p> <p>14. Physicians and Surgeons. — Essentials.—A “physician” is a person who has received the degree of doctor of medicine, or one lawfully engaged in the practice of medicine, p.488.</p> <p>15. Physicians and Surgeons. — Practicing without License. — The practice of medicine without a license constitutes a misdemeanor, p. 488.</p> <p>16. Trial. — Exclusion of Evidence. — (Jrounds for. — Changing of, on Appeal. — Where evidence was excluded because of certain objections, other objections cannot be urged on appeal to sustain the trial court’s ruling, p. 492.</p> <p>17. Negligence. — Oiled Floors.- — -Custom.—If a floor dressing was made and customarily used for the treatment of floors in stores, such use cannot serve as the sole basis of a charge of negligence, p. 493.</p> <p>18. Appeal. — Reversal.—Errors.—Where substantial errors have been committed against appellant and the Supreme Court is not convinced that a right result was reached, the judgment will be reversed, p. 495.</p>

<p>1. Officers. — Clerk of Supreme Court. — Fees.—Collection of, m Official Capacity.- — Under statutes requiring the Clerk of the Supreme Court to tax and collect transcript fees, and costs of notices of appeal (§707 Burns 1908, §665 R. S. 1881) and to issue fee bills therefor (§9610 Burns 1908, §6017 R. S. 1881), such fees are taxed and collected by such clerk in his official capacity, p. 499.</p> <p>2. Officers. — Fees.—Payment to Successors. — Clerk of Supreme Court. — Statutes.—Ejusdem Generis — Under the Act of 1883 (Acts 1883 p. 106, §2021 Burns 1901), the title of which reads: “An act relating to county, state, and other officers, and the payment by them to their successors in office of all moneys in their hands at the expiration of their terms of office, and providing penalties for failure so to do,” and the body of such act providing that “ it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this State, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term,” the Clerk of the Supreme Court is not required to turn over such funds to his successor, the clause “and every other officer receiving money in his official capacity,” evidently referring only to county officers. pp. 500, 501.</p> <p>3. Statutes. — Ejusdem Generis. — General Words. — Extending Statute from Inferiors to Superiors. — A statute treating of persons of an inferior degree or class cannot, by general words, bo extended to those of a superior degree or class, p. 501.</p> <p>4. Constitutionat, Daw. — Ex-Officers.—Imposing Duties Upon.— Clerk of Supreme Court. — That part of §9391 Burns 1908, Acts 1907 p. 92, §5, which requires former clerks of the Supreme Court to itemize and pay ovc-r to the present clerk all fees collected by them in the course of official duty and not paid to the private owners thereof, is unconstitutional, p. 503.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Drainage proceeding by William Thorn and others, against which Henry C. Silver and others remonstrate. From a judgment for remonstrants, petitioners appeal.

<p>1. Contempt. — Rule, to Simo Cause. — Failure to Enter. — Waiver. —Where defendants in a contempt case enter a full appearance, and answer to the merits of the charge made in 1 lie affidavit, they waive any error because of a failure of the court to enter ail order against them for a rule to show cause why they should not be punished, p. 530.</p> <p>2. Contempt. — Board of Public Works. — Removing Obstructions from Alley. — Where the members of the board of public works of a city were mandated to remove the obstructions from an alley, and they took such official measures as were authorized to have such obstructions removed, and received reports from the officials as well as frontagers that the obstructions were removed, they cannot be held guilty of a contempt because a part of such obstructions were not removed. Montgomery, X, dissents, pp. 531, 535.</p> <p>3. Mandamus. — Board of Public Works. — A writ of mandate directed to the board of public works of a city commands an official duty, and imports that official means shall be used in the performance of the things commanded, p. 534.</p> <p>4. Contempt. — Essentials.—The essence of a contempt of court is the wilful or defiant disregard of the court and its authority, p. 535.</p>

<p>1. Eminent Domain.— Procedure.— Complaint. — Exceptions.—Ansioer. — In a proceeding by a railroad company to appropriate land for a right of way, the only pleadings permissible are the complaint, a statement of objections to the right to exercise the power, and an answer (§933 Burns 1908, Acts 1905 p. 59, §5). p. 539.</p> <p>2. Eminent Domain. — Damages.—Award.—Exceptions to. — An exception to the award in a condemnation case, that the damages assessed were too low, allows the presentation of all questions of damages, p. 540.</p> <p>3. Eminent Domain. — Pleadings.—Unauthorized.—Amendments.— In an eminent domain case it is not erroneous for the court to refuse an amendment to an answer alleging that the plaintiff was unaware until the beginning .of the trial that the right of way sought to be appropriated would intersect a tile drain conveying the water from defendant’s farm, so as to show that the plaintiff would convey, or permit a judgment establishing, an easement for tile drainage across the right of way sought to be appropriated, and that the plaintiff would forever keep it in repair, since the statute does not permit the filing of such answer, p. 540.</p> <p>4. Pleading. — • Complaint.— Answer.— Amendments.— Promissory Contracts. — lu a railroad condemnation proceeding, where defendants excepted to the award of damages, and plaintiff answered chat it did not know that the appropriated right of way intersected a tile drain, a proposed amendment that the plaintiff would execute a conveyance of an easement for drainage and keep it forever in repair, or permit a judgment to that effect, is promissory in character, requiring an acceptance to be binding, and cannot be properly considered as an amendment to the complaint. pp. 540, 541.</p> <p>5. Eminent Domain.- — Rights of Landowners. — Landowners whose property is appropriated under the power of eminent domain may recover complete damages, or may contract with reference to the matter, p. 541.</p> <p>O. Eminent Domain. — Conditional Appropriation. — Complaint.—A complaint io condemn a right of way may specify limitations and conditions as to the use of the land taken, p. 541.</p> <p>7. Eminent Domain. — Right of. — Raising Question. — Where a landowner is notified of the appropriation of a railroad right of way over bis land, and be does not object to the right to condemn until after the award of the appraisers, his objection, is too late. p. 541.</p>

<p>1. Trial. — Admission of Evidence. — Objections.—Changing of, on Appeal.— Rape.— Declarations of Prosecuting Witness.— Where defendant in a rape case objected to the admission of evidence that the prosecuting witness made complaint with reference to defendant’s conduct, on the ground that such complaint was not a part of the res gestae and was made in defendant’s absence, he cannot, on appeal, raise the objection that the answer identified him as the person committing the alleged crime, pp. 543, 544.</p> <p>2. Rape. — Evidence.—Corroborative.—Declarations of Prosecuting Witness. — Cross-Examination.—Evidence that the prosecuting witness in a rape case made complaint soon after the occurrence of the alleged rape, is admissible in corroboration of her evidence that a rape was committed, but such evidence must not disclose what was said, nor the person committing the offense, unless such matters are developed on cross-examination, p. 543.</p>

<p>From Spencer Circuit Court; Roscoe Kiper, Judge.</p> <p>Prosecution by the State of Indiana against Lindsay O. Walters. From a judgment of conviction, defendant appeals.</p>

<p>1. New Tbial. — Overruling Motion for. — Failure to Except. — Appeal. — Criminal Laio. — The failure of appellant to except to the overruling of her motion for a new trial precludes the raising of any question thereon on appeal, p. 557.</p> <p>2. New Tbial. — Supplemental Motion for. — How Made Part of the Record. — Criminal Law, — Appeal.—A supplemental motion for a new trial becomes a part of the record from the time it is offered for filing (§2165 Burns 1908, Acts 1905 p. 584, §289), and when the only attempt to bring such motion into the record is by a bill of exceptions, it is not a part of the record and cannot be considered on appeal, p. 557.</p>

<p>From Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Andrew J. Ridge against the Oölitic Stone Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Intoxicating Liquors. — Indictment.—Negativing License. — An indictment charging that defendant “who was then and there not licensed * * * to sell, barter or give away * * * any spirituous, vinous, malt or other intoxicating liquors” did unlawfully operate a place where liquors were sold, shows that defendant was not licensed to sell liquors and, therefore, that he was conducting a place where liquors were sold “in violation of the laws of the state.” p. 584.</p> <p>2. Intoxicating Liquors. — Indictment.—Recitals. — License. — A charge that the defendant “who was then and there not licensed” to sell liquors, is an allegation of fact and not a recital, p. 585.</p> <p>3. Intoxicating Liquors.— Evidence.— Intent.- — Aggravation of Crime. — In a prosecution of defendant who was not licensed to operate a place for the sale of liquors, evidence that he brought a suit to enjoin the closing of his saloon because of an adverse vote at a county local option election, is admissible on the ground that it tends to show defendant’s intent, and therefore enables the court to grade the punishment, p. 585.</p> <p>4. Trial. — Reception of Verdict. — Criminal Law. — Former Jeopardy. — Whore, iu defendant’s absence, a verdict was delivered by the jury to the clerk, the jury polled, and the clerk, on discovery of defendant’s absence, was directed to return the verdict to the jury and the jury to return to its room, its subsequent return of the same verdict, in defendant’s presence, prejudiced none of defendant’s rights, and did not constitute a second jeopardy, p. 587.</p>

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Prosecution by The State of Indiana against Henry Keefer. From a judgment of conviction, defendant appeals.</p>

From Superior Court of Marion County (78,401); Vinson Carter, Judge. Action by the State of Indiana, on the relation of Edgar O. Hunter, against Thomas A. Winterrowd, as building inspector of the City of Indianapolis, and others. From a judgment for defendants, plaintiff appeals.

From Superior Court of Madison County; Cassius M. Greenlee, Judge. Suit by Andrew J. Bowers and others against Elizabeth J. Beatson and another. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901 p. 565, §10.

<p>1. Railroads.- — Setting Fires. — Several Acts of Negligence. — Proof of one. — Where a complaint alleged that defendant railroad company (1) negligently operated a defective locomotive provided with a defective spark arrester, and (2) negligently and carelessly operated and managed its locomotive, by reason whereof the sparks therefrom burned plaintiff’s buildings, proof of one of such .acts of negligence is sufficient, p. 611.</p> <p>2. Tbial. — Verdict.—Interrogatories.—Several Acts of Negligence. —Proof of One. — Railroads.—Setting Fires. — Answers to interrogatories showing (1) that the locomotive used by defendant railroad company was not properly constructed and equipped, and (2) that it was properly operated by competent engineers, do not overthrow a general verdict for the plaintiff in an action for the company's negligence in burning plaintiff’s buildings, proof of one act of negligence being sufficient, pp. 612, 614.</p> <p>8. Tbial. — Interrogatories.—Conclusions.—Engines “run and, operated properly.” — An interrogatory asking the jury whether defendant railroad company’s locomotives were “run and operated properly,” answered “Yes,” states a fact and not a mere conclusion. pp. 612, 613.</p> <p>4. Negligence.- — Question of Laxo and Fact. — Conclusions.—Negligence is usually a question of mixed law and fact, and a finding that defendant was guilty of negligence is a conclusion and not a finding of fact. p. 612.</p> <p>C. Tbial. — •Verdict.—1 nterrogatories. — Presumptions.—The general verdict prevails over the answers to interrogatories to the jury, where, unaided by any favorable presumptions, they are not in irreconcilable conflict therewith, p. 614.</p>

From Delaware Circuit Court; John F. McClure, Special Judge. Highway petition by Peter W. Dunn and others, against which Richard E. Craw and others remonstrate. From a judgment for petitioners, remonstrants appeal.

From Delaware Circuit Court; John F. McClure, Special Judge. Highway proceeding by Charles A. Barley and others, against which W. H. Maitlen and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>1. Mandamus. — Enforcement of Contracts. — Mandamus does not ordinarily lie to enforce a contract, p. 624.</p> <p>2. [Mandamus.' — Franchise Duties. — Where a corporation accejits a public franchise imposing certain duties toward the public, in consideration of rights conferred, such corporation may be compelled by mandate to perform such franchise duties, pp. 625, 626, 627.</p> <p>3. Corporations. — Public-Service.—Light and Heat Companies. — A corporation formed for the purpose of supplying a city and its inhabitants with light and heat, is a public-service corporation. p. 626.</p> <p>4. Mandamus. — Parties.—Relators.—Cities.—Public.—In an action in mandamus to compel a public-service corporation to furnish heat to a city for its library building, in accordance with its franchise, the city, as representing the public therein, is a proper relator, p. 627.</p> <p>5. Mandamus. — Healing City Library. — Ability of Company. — Estoppel. — A public-service corporation that accepts a franchise to furnish heat to the inhabitants of a city, a condition of its franchise being to supply heat to the city library building, is estopped from asserting that it cannot supply such heat. p. 628.</p> <p>6. Mandamus. — Heating City Library. — Subsequent Erection of Library. — An action to mandate a heating company to furnish heat for the city library building cannot be defeated on the ground that the building was erected after the granting of the franchise, where a condition of the franchise was that such company should “deliver, free of cost, to the city library building heat sufficient for all the rooms and offices in said building.” p. 628.</p> <p>7. Contracts. — Waiver.—Heating Oity Library. — Failure of Oity to Pipe Building.- — The failure of a city to prepare, at its completion, the city library building for the reception of heat contracted for in the grant of a franchise, does not constitute a construction of the franchise relieving the company from furnishing heat when such building is properly arranged therefor, p. 629.</p> <p>8. Corporations. — -Public-Service.—Heat.—Serving Public. — A public-service heating company is required to furnish heat to a private citizen whenever proper demand is made therefor, p. 629.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by Alfred Kiessling against the Inland Steel Company. From a judgment on a verdict for plaintiff for $6,000, defendant appeals.</p>

<p>1. Appeal. — Weighing Evidence. — The Supreme Court will nol weigli conflicting evidence, p. 636.</p> <p>2. Injunction. — Pumping Oil. — Doing Equity. — Olean Hands. — A plaintiff that is pumping oil by the use of artificial means has no standing in court to enjoin defendant from doing the same, thing, but in a greater degree, since the plaintiff must do equity and come into court with clean hands, p. 637.</p>

<p>From Madison Circuit Court; John F. McClure, Judge.</p> <p>Suit by John M. Hughes against James W. Sansberry and others. From a decree for plaintiff, defendant appeals.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by The State of Indiana, on the relation of Sebastian G. Bear, against Edward Long, as road supervisor of district three in Jackson township of Huntington county. From a judgment for defendant, plaintiff appeals.

<p>From Floyd Circuit Court; Harry C. Montgomery, Special Judge.</p> <p>Prosecution by The State of Indiana against Charles Radley. From a judgment of conviction, defendant appeals.</p>

<p>From Rush Circuit Court; Will M. Sparks, Judge.</p> <p>Suit by Minnie M. Mundy and others against Sarah E. Stiers and others. From a decree for plaintiffs, defendants appeal.</p>

From Hendricks Circuit Court; James L. Clark, Judge. Action by Ralph Wilcox, by his next friend, against Thomas Madden, Son and Company. From a judgment on a verdict for plaintiff for $4,000, defendant appeals. Transferred from Appellate Court under subd. two, §1394 Burns 1908, Acts 1901 p. 565, §10.

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Henry H. Taylor against Samuel K. Taylor and another. From a judgment for defendants, plaintiff appeals.</p>

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by The State of Indiana, on the relation of John Seifert, against Ada J. Branner. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Municipal Corporations. — Boundaries.—Annexation of Territory. — Evidence.—Under §8896 Burns 1908, Acts 1905 p. 219, §242, city councils may, by ordinance, declare and define the corporate boundaries of cities, and annex contiguous platted or unplatted land, and a certified copy of such ordinance constitutes conclusive proof of such boundary or annexation, p. 695.</p> <p>2. Municipal Corporations. — Annexation.—Ordinances.—Publication of. — -Appeal.—Under §8896 Burns 1908, Acts 1905 p. 219, §242, anncxaliou ordinances are not required to be published until afler the passage thereof, and, under §8897 Burns 1908, Acts 1905 p. 219, §243, any aggrieved person may appeal therefrom within ten days after the last publication, p. 696.</p> <p>3. Municipal Corporations. — Annexation.—Ordinances. —Failure lo Publish. — Affect.—Tho failure to publish an annexation ordinance, as required by §8896 Burns 1908, Acts 1905 p. 219, §242, does not affect the jurisdiction of the council in tho iiassage thereof, but may render the ordinance inoperative until the proper publication is made. p. 697.</p> <p>4. Municipal Corporations. — Sewer Assessments. — -Collateral Attack. — Annexation of Territory. — A suit to enjoin a city from levying a sewer assessment against plaintiff’s land on the ground that the ordinance annexing his land is void, constitutes a collateral attack on such annexation proceedings and can prevail only where the ordinance is shown to be-void, all presumption being in l'avor of the regularity of the annexation proceedings, p. 697.</p> <p>5. • Statutes. — Construction.—Aids to. — In construing a statute, the intent of the legislature is the object sought; and in determining such intent, the entire statute, as well as other acts in pari materia, whether repealed or not, and whether xiassed before or after the act in question, will be considered, p. 699.</p> <p>6. Municipal Corporations. — -Annexation.—Ordinances.—Publication.- — Statutes.—Section 8896 Burns 1908, Acts 1905 p. 219, §242, providing that annexation ordinances “shall be lmblished for at least two consecutive weeks in a daily newspaper,” when consi rued with other sections of the same act providing for imblication one time each weelt for a certain number of weeks, and with §1346 Burns 1908, Acts 1889 p. 431, §3, providing that where publication is required for a certain number of weeks, a xiublication “one time each week” shall be sufficient, must be construed to mean a publication once a week for two consecutive weeks, p. 699.</p> <p>7. Municipal Corporations. ■ — ■ Annexation. — Collateral Attach.— Appeal.- — A landowner whose land was annexed to a city and who failed to exercise his right of appeal (§8897 Burns 1908, Acts 1905 p. 219, §243), cannot question such annexation in a suit to enjoin a threatened sewer assessment, p. 702.</p> <p>8. Municipal Corporations. — Annexation.—Discretion of Cowvctt. —Judicial Control. — Where the statute gives city councils discretionary powers over annexation of territory, such discretion will not be judicially interfered with except in case of fraud, p. 703.</p> <p>9. Municipal Corporations. — Sewer Assessments. — Evidence. — Decision. — Collateral Attach. — The right of a board of works to determine whether the benefits to be derived from the construction of a sewer will equal the cost thereof, implies a right to decide wrong as well as right; and its decision, though wrong, is not subject to a collateral attack, p. 703.</p> <p>10. Municipal Corporations. — Sewer Assessments. — Evidence.—In determining whether the benefits to be derived from the construction of a sewer are equal to the cost thereof, the board of works is not absolutely bound by the testimony of interested landowners, but may exercise its own honest judgment, p. 704.</p>

From Fulton Circuit Court; Harry Bernetha, Judge. Action by the State of Indiana, on the relation of Jere Drudge, against A. Clinton Davisson, as county surveyor of Fulton county. From a judgment for defendant, plaintiff appeals.

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Prosecution by The State of Indiana against John Baker. From a judgment of conviction, defendant appeals.</p>

<p>1. Incest. — Definition.—The word “incest” imports an act of unlawful intercourse between persons so nearly related that their marriage would be unlawful, p. 717.</p> <p>2. Incest. — Common Lam. — Ecclesiastical Daw. — Incest was not a crime by the common law, though it was punishable by the ecclesiastical courts, p. 717.</p> <p>3. Mabbiage. — Husband and Wife. — Contracts.—Marriage in Indiana is declared to be a civil contract, p. 718.</p> <p>4. Mabkiage. —Relationship Forbidden. —Cousins. —Cousins are kindred related collaterally by descent from a common ancestor— but not a brother nor sister; and under the marriage statute (§8357 Burns 1908, §5324 R. S. 1881), the word implies relationship by consanguinity — (lie ordinary meaning thereof. p. 718.</p> <p>5. Mabkiage. — Canon Daw. — Incest.—Statutes.—The canon law of England was never a part of the law of this State; and the crime of incest is purely statutory, p. 719.</p> <p>6. Incest. — Relationship by Affinity. — Legislative Powers. — The legislature has the power to make punishable as incest the marriage of persons related only by affinity, p. 720.</p> <p>7. Statutes. — Criminal.—Construction.—Criminal statutes must be strictly construed, p. 720.</p> <p>S. Incest. — Relationship by Affinity. — Statutes.—Under §2352 Burns 1908, Acts 1907 p. 101, providing that “if any uncle * * ' shall have sexual intercourse with his * * * niece, * * * he shall he guilty of incest,” an uncle who has intercourse with the daughter of his wife’s sister is not guilty of incest, p. 720.</p>

<p>Contracts. — Assignment.—• Gas and Oil. — Conveyance of Part of Land. — Injunction.—Damages.—Whore the owners of 200 acres of land leased the right to sink two gas and oil wells on such land in consideration of free gas for certain fires and lights, and such owners conveyed 80 acres of such tract, assigning therewith the lease and profits therefrom, such grantee and assignee may enjoin such lessee from sinking more than two wells, may compel such lessee to deliver to him the gas contracted for in the lease, and a second lease from such owners of the right to sink wells on the remaining 120 acres is void as to such assignee of the former lease, and such assignee’s oral agreement to accept the gas at another residence does not affect his rights under the contract.</p>

From Wells Circuit Court; Charles E. Sturgis, Judge. Drainage petition by Philip H. Gilbert and others, against which Sarah E. Inskeep and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>Appeal. — Briefs.—Failure to Set Out Questioned Demurrers.— Waiver. — A failure by appellants, in their brief, to set out in words or substance the questioned demurrers waives any alleged errors committed in the rulings thereon.</p>

<p>1. Mandamus. ■ — Petition. —Wiling Demurrer with Answer. — Waiver. — Saving Question of, on Appeal. — By filing an answer in a mandamus case before a ruling is made on a pending demurrer to the petition, the defendant waives a ruling thereon; but if the parties nevertheless argue such demurrer and secure a ruling thereon, without objection, no question of waiver can be presented on appeal, p. 732.</p> <p>2. Mandamus. — Officers.—Pou-cr to Perform. — Petition.—A petition to mandate a public officer to perform an official act must show that he has the legal power to perform the act. p. 733.</p> <p>3. Schools. —Township Trustees. —Decisions. —Appeal. —Bond.— An appeal may be taken from the decision of a township trustee relative to school matters, but an appeal bond with approved security must be filed therefor, with the trustee, within thirty days from the date of the decision, p. 733.</p> <p>4. Mandamus. — Township Trustees. — Granting Appeal to County Superintendent. — Petition.—A petition to mandate a township trustee to grant an appeal from his decision to the county superintendent, must allege that a proper appeal bond was filed with him. p. 733.</p>

<p>From Dekalb Circuit Court; Emmet A. Bratton, Judge.</p> <p>Prosecution by The State of Indiana against George Schondel. From a judgment of conviction, he appeals.</p>

<p>From Greene Circuit Court; Charles E. Henderson, Judge.</p> <p>Prosecution by The State of Indiana against Jacob S. Woodward. From a judgment of conviction, defendant appeals.</p>

<p>From Vermillion Circuit Court; Charles N. Fultz, Judge Pro Tem.</p> <p>Prosecution by The State of Indiana against Frank M. Malone. From a judgment for defendant, the State appeals.</p>

<p>From Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Prosecution by The State of Indiana against John Dressel. From a judgment of conviction, defendant appeals.</p>

<p>From Grant Superior Court; Samuel E. Cook, Special Judge.</p> <p>Suit by Joshua Strange against the Board of Commissioners of the County of Grant. From a decree for defendant, plaintiff appeals.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Suit by the State of Indiana, on the relation of Charles F. Galey, against the Board of Commissioners of the County of Montgomery. From a judgment for defendant, plaintiff appeals.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge,</p> <p>Drainage proceeding by Grant C. Hinton and others, against which George W. Nixon remonstrates. From a judgment for petitioners, remonstrant appeals.</p>

<p>From Huntington Circuit Court; Samuel JS. Cooh, Judge.</p> <p>Action by the Mutual Manufacturing Company against Gottlieb Hauenstine and another. From a judgment for defendants, plaintiff appeals.</p>