Volume 175 — Indiana Reports

<p>1. Intoxicating Liquoes. — Selling without License. — Affidavit.— An affidavit charging that defendant on a certain date, at a certain place, “did then and there unlawfully sell to Louis Wien one pint of beer, at and for the price of ten cents, he, the said Buffi Turner [defendant] not then and there being licensed under the laws of the State of Indiana to sell spirituous, vinous and malt liquors,” sufficiently shows that defendant sold intoxicating liquors without a license, p. 2.</p> <p>2. Intoxicating Liquoes. — “Beer.”—“Beer” is an intoxicating, fermented, malt liquor, p. 2.</p> <p>3. Intoxicating Liquoes. — Beer.—Sale of. — Evidence.—In a prosecution for the unlawful sale of beer, it may be shown in defense that the article sold as beer was not intoxicating, p. 3.</p> <p>4. Tbial. — Motions in Arrest and for a Eeio Trial. — -The filing of a motion in arrest of judgment cuts off the right to file a motion for a new trial, p. 3.</p>

<p>From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge.</p> <p>Action by the Evansville Terminal Railway against the F. W. Cook Investment Company. From a judgment for plaintiff, defendant appeals.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Drainage petition by Silas W. Crum and another, against which Daniel Hinesley and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>Criminal Law. — Unlawful Detention. — Overruling Motion to Discharge Defendant. — Final Judgment. — Appeal.—The overruling of a motion to discharge defendant, who was indicted for murder, for the reason that he had been detained in prison without a trial for more than two terms of court, does not constitute a final judgment and cannot be appealed from.</p>

<p>1. Appeal. — Notice of. — Waiver.—The filing of a brief on the merits constitutes a full appearance on appeal, and defects in the notice of appeal are thereby waived, p. 18.</p> <p>2. Indictment. — Joint.—Several Motion to Quash. — A motion by one joint defendant to quash the “affidavit filed against himself and others” is individual and does not seek to have the affidavit quashed as to the other defendants, p. 18.</p> <p>3. Constitutional Law. — Local Laws. — Seining Fish. — A statute regulating the taking of fish from all the streams of the State except the Ohio and Wabash rivers does not violate article 4, §22, of the Constitution forbidding the passing of local or special laws except in certain cases, nor does it violate article 4, §23, of the Constitution, requiring all laws so specified in article 4, §22, as well as all others, where possible, to be both general, and of uniform operation throughout the State, p. 19.</p> <p>4. Constitutional Law. — Local Laws. — Talcing Fish. — ■Exceptions. —Section 2541 Burns 1908, Acts 1905 p. 5S4, §619, prohibiting the seining of fish in any streams of the State, excluding the Ohio and Wabash rivers, except portions thereof within one hundred yards of the mouth of any Indiana stream emptying into either river, does not violate the second provision of article 4, §22, of the Constitution, prohibiting the passage of local or special laws “for the punishment of crimes and misdemeanors,” since such section does not prevent proper and reasonable classification of the acts which are denounced as offenses, p. 19.</p> <p>5. Constitutional Law. — Special Privileges. — Seining Fish. — Section 2541 Burns 1908, Acts 1905 p. 584, §619, prohibiting the seining of fish except in the Ohio and Wabash rivers, does not grant privileges to persons living along such rivers in violation of article 1, §23, of the Constitution, prohibiting the granting of unequal privileges or immunities, p. 21.</p>

<p>1. Eminent Domain. — Street and Interurban Railroads. — Voluntary Associations. — Corporations.—An interurban railroad corporation formed under tlie voluntary associations acts (Acts 1901 p. 289 and Acts 1903 p. 180) has the right to exercise the power of eminent domain, p. 22.</p> <p>2. Railroads. — Crossings.—Agreements Concerning. — Question of Fact. — Appeal.—Whether an interurban railroad company made a good-faith effort to purchase a right of crossing over defendant’s railroad, is a question of fact, and the trial court’s decision thereon, on conflicting evidence, i's conclusive on appeal, p. 23.</p> <p>3. Railroads. — Effort to Purchase Right of Crossing. — Evidence. —Evidence that the attorney for the plaintiff interurban railroad company went to the office of defendant railroad company’s manager to purchase a right of crossing over defendant’s road, that the consultation continued until defendant’s manager requested a blue print of the proposed crossing, that it was agreed that such manager should call at such attorney’s office the next morning and examine the blue print, but such manager failed so to do and instead wrote a letter virtually evading the matter and declining further negotiations except upon specified conditions, sufficiently shows an attempt to purchase a crossing over such road. p. 23.</p>

<p>From Jennings Circuit Court; Francis M. Thompson, Judge.</p> <p>Prosecution by The State of Indiana against Homer Rodgers. From a judgment for defendant, the State appeals.</p>

<p>1. Insurance. — Suicide.—Instructions.—Presumptions.— Beneficial Associations. — In an action upon a benefit certificate, the defense being self-destruction, an instruction that “owing to the instinctive love of life, the presumption is against suicide, and the burden is, therefore, upon the party asserting death in such manner to establish the fact,” is erroneous, pp. 32,33.</p> <p>2. Insurance. — Suicide. — ■Defense. — Burden of Proof. — Self-deslructi’on, when not covered by an insurance policy, constitutes a defense that must be pleaded and proved by the defendant, pp. 32, 34.</p> <p>3. Evidence. — Presumptions.—Basis of. — Presumptions of law are usually grounded upon public policy, social convenience or safety, and are either declared by statute or sanctioned by the courts, p. 32.</p> <p>4. Evidence. — Presumptions. — ■Knowledge of Writings. — Public Records. — Consequences of Acts. — Performance of Official Duties. —There is a presumption that every one knows the contents of writings executed by himself, that a public record imports notice, that persons intend the consequences of their voluntary acts, and that officers perform their official duties, p. 32.</p> <p>5. Evidence. — Suicide.—Presumptions.—Death by suicide is unnatural and the law will not presume an unexxilained death to have been suicidal, p. 33.</p> <p>6. Insurance. — Suicide.—Facts.—Experience of Jurors. — In determining whether an insured died by self-destruction the jury may properly consider the facts in evidence bearing upon that question in the light of their common knowledge and experience that men love life and shun death, though occasionally men, both sane and insane, commit self-destruction, p. 33.</p> <p>7. Insurance. — Suicide.—Instructions.—Excluding Other Hypotheses. — In an action upon a benefit certificate, the defense being self-destruction, an instruction that to find for the defendant as to such defense “the evidence must be of such character as to exclude with reasonable certainty every other hypothesis than that of death by suicide,” is erroneous, only a preponderance of the evidence on such question being necessary, p. 33.</p> <p>8. Courts. — Transfers from Appellate to Supreme. — Purpose.— Oral Arguments. — The purpose of transferring to the Supreme Court a case decided by the Appellate Court is to correct some</p> <p>' erroneous declaration of law laid down in the Appellate Court decision; and an oral argument after such transfer to the Supreme Court is not demandable. p. 35.</p> <p>O. Akpeal. — Rehearing.-—Questions Presentable. — Questions not presented in the original briefs cannot be raised on a rehearing, p. 35.</p>

From Porter Circuit Court; Herbert 8. Barr, Special Judge. Drainage petition by Joseph D. Luddington and others, against which the Chicago and Erie Railroad Company remonstrates. From a judgment against remonstrant, it appeals.

<p>From Elkhart Circuit Court; James S. Dodge, Judge.</p> <p>Disbarment proceeding against Lemuel Darrow and others. From a judgment of disbarment, defendants Darrow and Talbot appeal.</p>

<p>1. States. — Action Against. — A State cannot be sued without its consent; and if terms are imposed by the statute giving consent, plaintiff must bring himself within such terms, p. 71.</p> <p>2. States. — Liability for Acts of Officers. — In the absence of a statute, a State is not liable for the misconduct, negligence, or tortious acts of its officers or agents, p. 71.</p> <p>8. States. — Unlaiuful Collection of Money. — Recovery of. — Contracts.- — Where the plaintiff, under protest, pays money to the State to which the State is not lawfully entitled, an action for the recovery thereof is not based upon an express contract within §1485 Burns 1908, Acts 1895 p. 231, providing that an action may be brought against the State upon any claim arising “out of contract express or implied.” p. 71.</p> <p>4. States. — Wrongful Collection of Insurance Fees. — Recovery of. —Implied Contracts. — Statutes.—Where an insurance company, under penalty of a revocation of its right to transact business within the State, or of being compelled to pay $100 a day for each day it failed to pay the amount of fees demanded by the State, pays into the state treasury fees to which the State is not legally entitled, such company may maintain an action for the recovery thereof under an implied contract within §1485 Burns 190S, Acts 1S95 p. 231, providing that an action may be brought against the State upon any 'claim arising “out of contract express or implied.” pp. 71,73, 74.</p> <p>5. States. — Unlawful Insurance Fees Collected. — Recovery of, from State. — Complaint.—Tort.—A complaint by an insurance company to recover fees wrongfully collected by the State, alleging that such money was extorted, that the company was coerced and imperiled by a threat of a state officer to revoke its authority merely shows the essential fact that the money was not voluntarily paid, and does not show the commission of a tort. p. 72.</p> <p>G. Action. — “Money Demands on Contract.”- — The phrase “money demands on contract,” when used with reference to an action, imports any action arising out of contract, where the relief demanded is a recovery of money, p. 72.</p> <p>7. Conteacts. — Express.—Implied.—An express contract is one in which the terms are definite and mutually agreed upon, while an implied contract is one wherein no formal agreement is made, but the contract is inferred from the facts and cieumstances or is supplied by law, regardless of the intention of the parties, p. 73.</p> <p>8. States. — Courts.—Jurisdiction.—The Superior Court of Marion County has jurisdiction of the subject-matter of an action against the State for the recovery of insurance fees wrongfully collected by it (§14S5 Burns 1908, Acts 1S95, p. 231). p. 70.</p> <p>9. States. — -Officers.—Authority.—Notice.—Auditor of State. — Insurance Fees. — Insurance companies are presumed to know the powers and duties of the Auditor of State, and that he has no authority to collect the insurance fees that under §10210 Burns 190S, Acts 1891 p. 199, §07, are payable “into the treasury of the State.” p.77.</p> <p>10. Taxation. — Insurance Fees. — Statutes. ■ — ■ Departmental Construction. — Section 10216 Burns 1908, Acts 1891 p. 199, §67, requiring foreign insurance companies to pay certain fees “into the treasury of the State” is too plain and unambiguous to be subject to departmental construction, pp. 78, 80.</p> <p>11. Officers. — Principal and Agent. — Auditor of Stale. — Insurance-Fees. — An Auditor of State who collects insurance fees that are required by §10216 Burns 190S, Acts 1891 p. 199 §67, to be paid “into the treasury of the State” receives such fees merely in the capacity of agent of the companies so paying such fees. p. 79.</p> <p>12. States. — Illegal Acts of Officers. — Acquiescence.—Complaint.— Conclusions. — The State cannot be held to acquiesce in the unauthorized acts of its officers, and an allegation that it so acquiesced, is a conclusion, p. 81.</p> <p>18. Estoppel. — In Pais. — Fraud.—The effect of an estoppel in pais is to preclude the assertion of a legal right or defense, and is justified on the ground of prevention of fraud by the person sought to be estopped, the fraud consisting in the denial of that which the person sought to be estopped has previously asserted. p. 81.</p> <p>14. Estoppel. — Purpose.—The purpose of an estoppel is to preserve acquired rights and not to create new ones. p. 82.</p> <p>15. Estoppel. — States.—Illegal Insurance Fees Collected by Auditor of State. — Reports.—Notice.—The State is not estopped from collecting certain insurance fees because of the fact that they were paid to the Auditors of State instead of “into the treasury of the State,” that such auditors’ reports showed such payments, and that such reports were submitted by the Governors to the General Assemblies, there being nothing to show that the comxianies so paying did not know that such Auditors of State were not authorized so to collect such fees. pp. 82, 83.</p> <p>16. Estoppel. — Fraud.—Equal Knotoledge of All Facts. — Where the parties have equal knowledge of all the facts, no estoppel arises, pp. 83, 84.</p> <p>17. Taxation. — Payment to Wrong Person.■ — -States.—Insurance Fees. — Payment of insurance fees to the Auditor of State does not constitute payment thereof to the State, p. 84.</p> <p>18. Maxims. — Ignorance of the Law does not Excuse. — Statutes.— The maxim “ignorantia legis neminem excusat” applies alike to the common and to the statutory law. p. S4.</p> <p>19. States. — Insurance Fees. — Collection of, by Auditor of State. —Failure to pay to Treasurer of State. — Where a foreign insurance company paid to the Auditors of State its insurance fees, and they failed to pay such fees in whole or in part “into the treasury of the State” (§10216 Burns 1908, Acts 1891 p. 199, §67), the State may collect the fees not paid “into the treasury of the State.” p. 84.</p> <p>20. Interest. — Insurance fees. — Illegal Collection of, by State.— Where a foreign insurance company fails to pay the fees due therefrom to the State, it is erroneous, in an action by the State for the recovery thereof, to allow interest thereon, the statute (§10210 Burns 1908, Acts 1891 p. 199, §07) providing for a penalty, and not for interest for such failure, pp. 84,85.</p> <p>21. Taxation. — Interest.—Debts.—Taxes are not debts in the ordinary sense of the term, and interest is not collectible thereon in the absence of a statute providing therefor, p. 85.</p>

<p>From Lake Superior Court; V. S. Reiter, Judge.</p> <p>Suit by the American Maize Products Company against Edward A. Shedd and others. From an interlocutory order for the plaintiff, defendants appeal.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Drainage petition by Albert C. Hahn and others, against which George E. Rinker and others remonstrate. From a judgment for petitioners, remonstrators appeal.

<p>Forgery. — Introducing other Disputed Signatures over Objection.— Evidence. — Experts.—In a prosecution for forgery, the State cannot introduce in evidence, over defendant’s objection, an alleged genuine signature of such defendant, which is not otherwise a proper paper in the case, for the purpose of having experts compare such signature with the alleged forged signature and upon such comparison give an opinion as to the alleged forgery.</p>

<p>From Adams Circuit Court; James T. Merryman, Judge.</p> <p>Action by James Touhey against the City of Decatur. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Eminent Domain. — Atoará.—Acceptance.—Estoppel.—A person cannot accept tbe benefit of an award or judgment, and afterward contest the validity thereof, p. 107.</p> <p>2. Eminent Domain.— Railroads. — • Awards.— Exceptions.— Sufficiency. — An exception to an award in a railroad condemnation proceeding that “the damages assessed * * * as to the value of the land appropriated, are entirely inadequate and said land is worth much more than the amount found * * * in said appraisers’ report, * * * said defendant, however, accepting the valuation of the improvements,” is sufficient to bring the whole question of damages before the trial court de novo. p. 107.</p> <p>3. Eminent Domain. — Damages.—Burden of Proof.- — The burden of proving damages, in an eminent domain proceeding, is upon the landowner; and such damages include those to the improvements as well as to the land itself, p. 107.</p> <p>4. Estoppel. — Eminent Domain. — Award.—Exceptions to. — Acceptance of Part. — A landowner who, in a railroad condemnation case, excepts to the award of appraisers as to the land, but accepts the valuation of the improvements, is not estopped from trying the case dc novo in the circuit court, there being nothing to show that the money for the damages to improvements had been accepted, p. 108.</p> <p>5. Eminent Domain. — Award.—Exceptions. — Jurisdiction. — Instructions. — To an award in a railroad condemnation' caso, an exception as to the value of the real estate, but an acceptance of the valuation of the improvements, invests the circuit court with jurisdiction of the case; and the company’s motion to withdraw the case from the jury on the ground that the landowner had accepted the benefits of the award was properly overruled. p. 108.</p> <p>6. Appeal. — Defective Instructions. — Evidence not in Record.— Where the evidence is not in the record, the overruling of objections to a question, and the giving of alleged erroneous instructions, present no question, unless it affirmatively appears that the rulings of the court were necessarily erroneous and probably harmful under any possible state of the evidence, p. 108.</p>

From Scott Circuit Court; Joseph H. Shea, Judge. Action by The State of Indiana, on the relation of the Baltimore and Ohio Southwestern Railroad Company, against William H. Daly, as Justice of the Peace for Brownstown Township of Jackson County. From a judgment for defendant, plaintiff appeals.

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

<p>From Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Action -by the White River Light and Power Company against Emma A. Illyes and another. From an interlocutory order for plaintiff, defendants appeal.</p>

<p>From Wayne Circuit Court; Henry C. Fox, Judge.</p> <p>Prosecution by The State of Indiana against Lida Hazlitt. From a judgment of conviction, defendant appeáls.</p>

<p>1. Appeal. — Decedents’ Estates. — Statutes. — Claims. — Bonds.— Suretyship. — Where a judgment was affirmed on appeal, and the surety on the appeal bond died ponding the appeal, and the judgment was affirmed, and the judgment plaintiff filed the judgment as a claim against the estate of such surety, the judgment rendered in such judgment plaintiff’s favor grew out of a “matter connected with a decedent’s estate,” within §2977 Burns 1908, §2454 R. S. 1881, though the principal and the other sureties on the appeal bond were made parties to the claim against the administrator, the test being whether the probate jurisdiction of the trial court was involved, p. 129.</p> <p>2. Appeal. — Jurisdiction.—Waiver.—Decedents’ Estates. — Where the transcript for an appeal from a judgment involving a “matter connected with a decedent’s estate” is not filed within ono hundred days after the date of the judgment, or the overruling of a motion for a new trial, if such overruling is subsequent to the rendition of judgment, the Supreme Court does not obtain jurisdiction of the appeal, and there can be no waiver by acts of the parties, the duty of the court being to dismiss the appeal on its own motion, p. 131.</p>

<p>1. Appeal. — Jurisdiction.•—Constitutional Law Question. — Jurisdiction of appeals presenting constitutional questions is in the Supreme Court, p. 135.</p> <p>2. Constitutional Law. — lffili Amendment. — Privileges md Immunities. — The equal privileges and immunities clause of the 14th amendment to the federal Constitution applies to those privileges and immunities growing out of the nature and character of the federal government, and operates on state but not upon individual action, simply requiring equal treatment and equal privileges for those similarly situated, p. 135.</p> <p>3. Courts. — State.—Jurisdiction.—Patents. — The federal courts have exclusive jurisdiction to determine patent cases, but the state courts have jurisdiction of cases where patents are only incidentally involved, p. 135.</p> <p>4. Officers. — County Treasurers. — Can'd Indexes. — Counties.—A county treasurer who makes and pays the entire cost — $3,000— of a card index for use in facilitating the business of his office, abandoning the old system, there being no law requiring the making or keeping of any index, cannot remove such index at the close of his term, though such an index might have been contracted for, and paid for, at the public expense, lip. 136,137,138.</p> <p>5. Officers. — liecords.—Card Indexes. — A card index to a public-record is a facility for learning the contents of such record, but, in the absence of a statute, is not a part of the record itself, p. 137.</p> <p>6. Evidence. — Records.—Card Indexes. — In case of loss or destruction of public records, card indexes kept in an office for the facilitation of business might become secondary evidence of the records so lost or destroyed, p. 137.</p> <p>7. Officers. — Records.—A public record is one required by law, or usage, to be kept to serve as a memorial of something written, said, or done. p. 138.</p> <p>8. Constitutional Law. — Due Process. — Compensation.—Officers. —Card Indexes. — Where a county treasurer and his assistant, at their own expense, prepared a card index system for the facilitation of the business of the office, the retention of said index by the county, at the expiration of the treasurer’s term of office, and without his consent, does not constitute a taking of property without due process of law, or without compensation, p. 138.</p>

<p>1. Criminal Law. — Appeal.—Perfecting.—Notice of. — Sufficiency. —Where a judgment of conviction was rendered in a criminal case on February 18, the transcript on appeal was filed on March 31, appellant’s brief, on March 31, appellee’s brief, on July 15, raising the question of jurisdiction, and on July 29, appellant notified the prosecuting attorney of the appeal, filing proof of such notice on July 30, the Supreme Court has jurisdiction to determine the question raised in the appeal, the service of such notice after the filing of the transcript on appeal, and within the statutory time, being permissible, p. 1-10.</p> <p>2. Intoxicating Liquors. — Sales.—Consignees.—Care of Third Person. — Agency.—A consignment of goods to the vendee, in care of a third person, in the absence of known limitations, confers upon such third person the right to receive the goods, and this fact may be considered in determining whether such third person is the agent of the vendor, or of the vendee. x>-144.</p> <p>3. Intoxicating Liquors. — Sales.—Delivery.—Place of. — Where a vendor of intoxicating liquors undertakes to deliver the liquor sold, the sale is complete only upon delivery; and the place of sale is the place of delivery. x>-144.</p> <p>4. Intoxicating Liquors. — Sales. — Place of. — Statutes.—Thidor §8347 Burns 1908, Acts 1907 p. 27, §11, a sale of intoxicating liquors, shipped c. o. d., is completed at the place where the money is paid, or the goods are delivered, p. 145.</p> <p>5. Appeal. — Weighing Evidence. — In determining whether the evidence sustains a conviction of a defendant, the Supreme Court will consider only that which is most favorable to the State, p. 146.</p> <p>6. Criminal Law. — Principals.—Accessories.—Misdemeanors.—All who aid or abet in the commission of a misdemeanor are indictable and punishable as principals, p. 146.</p> <p>7. Intoxicating Liquors. — Sales.-—Delivery.—Place of. — Where a citizen of Kokomo ordered liquor from an Indianapolis saloon-keeper, delivery to be made at his home at Kokomo, and the liquor was consigned to defendant, the name of the xmrehaser also being marked thereon, and defendant delivered the liquor, collecting fifteen cents for the delivery, he is criminally liable, having aided in the commission of a misdemeanor, p. 146.</p>

From Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by the State of Indiana, on the relation of Ira T. Eaton and others, against the Board of Trustees of the School City of LaFayette. From a judgment for plaintiff, defendant appeals.

<p>From Superior Court of Marion County (80,235); James M. Leathers, Judge.</p> <p>Suit by Josie Hodgin against Leonard A. Hodgin and others. From an interlocutory order appointing a receiver, Leonard A. Hodgin and certain others appeal.</p>

From Porter Circuit Court; W. C. McMahan, Judge. Action by Charlotte Reynolds, as administratrix of the estate of William Reynolds, deceased, against the Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $3,500, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, §10.

<p>From Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Ferdinand Effinger against the Fort Wayne and Wabash Valley Traction Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, §10.</p>

<p>1. Pleading. — Complaint.—Parties.—Capacities i/n which Sued.— Caption. — Allegations.—The capacity in which a party is sued is determined, not from the eaiition of the complaint, but by the allegations thereof, p. 184.</p> <p>2. Appeal. — Theory.-—Parties.—Capacities.—Where a party to an action was not named in its representative capacity in the caption of the complaint, but the allegations of the complaint showed that such party was sued in such capacity, it is proper to name such party in its representative capacity in the assignment of errors on appeal, the Supreme Court adhering to the theory of the case adopted in the trial court, p. 184.</p> <p>3. Appeal. — Supreme Court Buies. — Briefs. — Where appellants have made a good-faith effort to comply with the Supreme Court rules in the preparation of their brief, such brief will be held sufficient, p. 184.</p> <p>4. New Tkial. — Joint Motion for. — Several Exceptions to BuVvngs. ■ — Where the rulings made a ground for a joint motion for a new trial were severally excepted to by each of the appellants and for the same reasons, such rulings are properly assigned in such motion for a new trial, and the joint exception to the overruling of such motion properly presents the questions under a joint assignment of errors on appeal, p. 185.</p> <p>5. Wills. — Testamentary Capacity.- — Comprehending Legal Effect of Will. — Instructions.—Instructions, in a will contest, that the testatrix, to have sufficient mental capacity to execute a valid will, must be able to “understand the nature and legal effect of her will,” and “to understand all the provisions of said will standing alone and each with respect to the other,” are erroneous, the mental requirement being too high. p. 186.</p> <p>■6. Wills. — Testamentary Capacity. — Comprehending Provisions of Will. — Instructions,—An instruction that in determining the testamentary capacity of the testatrix the jury might “consider whether she had sufficient mental capacity to comprehend” certain items of her will, is erroneous, the standard being too high. p. 188.</p> <p>7. Wills.- — Undue Influence. — Former Wills. — Consideration of.— Instructions. — An instruction that the jury in determining the question of undue influence in a will contest might “consider whether some ten or fifteen years before her death the testatrix had executed at intervals of several months apart, three wills,” is erroneous, since undue influence, to invalidate a will, must be directly connected with its execution, and operate at the time the will is made. p. 1S8.</p> <p>8. Wills. — Testamentary Capacity. — Undue Influence. — Declarations and Writings of Testatrix. — Evidence.—Declarations of a testatrix not made at the time of the execution of the will are admissible on the question of testamentary capacity, but not on the question of undue influence; and this rule applies to letters, other wills and other writings of the testatrix, p. 189.</p> <p>9. Wills. — Testamentary Capacity. — Undue Influence. — Declarations. — Evidence.—Declarations of testatrix in harmony with her will are admissible to sustain such will. p. 190.</p> <p>10. Wills. — Construction.—Testamentary Capacity. — Undue Influence. — Duty of Court. — In a will contest the proper construction of the will is not necessarily involved; but where it is material in determining the questions of testamentary capacity and undue influence it is the duty of the court, on proper request, to inform the jury as to the correct meaning of the provisions thereof, p. 190.</p> <p>11. Wills. — Devises.-—Division of.- — Conclusiveness of. — Partition. —Where a will devised certain undivided land to the children of testatrix, and iirovided for a division of such land “on a fair and equitable basis as to value,” the executor to act as arbiter, and the division made by a majority to be conclusive, the division was required to be “fair and equitable,” and collusion or injustice therein would render the division voidable at the instance of the defrauded party, who could compel a division by a partition proceeding, p. 192.</p> <p>12. Contracts. — Arbitration.—Ousting Jurisdiction of Courts.— Parties cannot, even by contract, in advance of a dispute, make the decision of a named person final and conclusive, thereby ousting the jurisdiction of the courts, p. 193.</p> <p>13. Ahpeal. — Refusal to Give Instructions. — Prejudicial Error.- — • Briefs. — Appellants’ brief should present enough of the record to show that they were prejudiced in their rights by the failure of the court to give a refused instruction, p. 193.</p> <p>14. Evidence. — Opinion.—Basis of. — Experts.—An expert may not give his opinion upon his recollection and construction of the evidence, but must base it upon facts assumed to have been proved, which facts must be given to him as the foundation upon which to base his opinion, p. 194.</p> <p>15. Evidence. — Opinion.—Exports.—A hypothetical question propounded to an expert must be so framed as to give no occasion for the drawing of a conclusion from the whole or any part of the evidence in the case. p. 194.</p> <p>16. Wills.— Testamentary Oapaeity.— Experts.— Assuming Portions of Will and Letter in Hypothetical Question. — In a will contest, it is improper to assume as a part of a hypothetical question propounded to a physician certain parts of the will in question and also a letter written to the testatrix, the facts contained in such provisions and in such letter being the proper matters to assume in such question, p. 194.</p> <p>17. Appeal. — Instructions. — Interrogatories. — Harmful Error. ■ — • Incorrect instructions and erroneously admitted evidence will be considered prejudicial, where the answers to the interrogatories to the jury fail to show them harmless, p. 195.</p>

<p>From Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by Daniel J. Mitchell against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. A</p>

<p>1. Appeal . — Harmless Error. — Ruling on Paragraph of Complaint. —Special Bindings Showing Recovery upon Another. — An erroneous ruling upon a demurrer to a paragraph of complaint constitutes harmless error, where the special findings show a recovery upon another paragraph, p. 213.</p> <p>2. Appeal. — Determination of. — Demurrer.—Conclusions of Law Presenting Same Questions. — Where the exceptions to the conclusions of law present the same questions as the demurrer to the complaint, a decision on such demurrer determines the questions on the exceptions to the conclusions of law. p. 213.</p> <p>3. Bankruptcy. — Unlawful Preferences. — Recovery of. — Complaint. —'Fraudulent Conveyances. — A complaint for the recovery of money paid by a bankrupt to defendant within four months before the filing of a petition in bankruptcy, alleging the essential elements necessary to show an unlawful preference, as set out in section sixty of the bankruptcy act, as amended ill 1903 (82 Stat. 799, 800, U. S. Comp. Stat. Supp. 1909 pp. 1314, 1315), is sufficient; and it is not necessary, in addition, to allege facts sufficient for the setting aside of an ordinary fraudulent conveyance. p. 213.</p> <p>4. Appeal. — Weighing Evidence — Where there is some evidence tending to support the material allegations of the complaint, a judgment for the plaintiff will be affirmed, p. 214.</p>

<p>From Hamilton Circuit Court; Meade Vestal, Judge.</p> <p>Prosecution by The State of Indiana against Roscoe Barnett. From a judgment of conviction, defendant appeals.</p>

<p>From Marion Circuit Court (16,076); Charles Remster, Judge.</p> <p>Action by Nathan S. Cook against the Board of Commissioners of the County of Marion. From the judgment rendered for plaintiff, he appeals.</p>

From Howard Circuit Court; Leroy B. Nash, Special Judge. Drainage proceedings by Stephen B. Tudor and others, against which Thomas J. O’Toole and others remonstrate. From a judgment for petitioners, remonstrants appeal.

<p>1. Municipal Corporations. — Defective Sidewalks. — Complaint.— Exhibits. — Notice of Injury. — Where a complaint against a city for damages for injuries, sustained by the plaintiff because of a defective sidewalk alleges that the plaintiff “served notice upon the mayor of said city within sixty days after said injury,” a copy of such notice being attached as an exhibit to the complaint, it sufficiently shows that the statutory notice (§8962 Burns 1908, Acts 1907 p. 249) was given, pp. 237, 238.</p> <p>2. Statutes. — Titles. — Constitutional Law. — Cities. — Defective Streets. — Injuries.—Notice.—The act of 1907 (Acts 1907 p. 249, §S9G2 Burns 1908) requiring persons who are injured because of defective streets in cities to notify such cities of such injuries within a certain time, is not invalid on the ground that the act embraces more than one subject-matter, or that the subject-matter is not expressed in the title, p. 238.</p> <p>3. Municipal Corporations. — Defective Sidewalks. — Complaint.— A complaint alleging that a named street in defendant city “was out of repair, dangerous to travelers, and defective in this, to wit: * * * one of said flagstones [of which the sidewalk was alleged to be composed] was raised above the level of the grade of said sidewalk about five inches, and that said flagstone had been so raised for more than a year prior to said April 10, 1909, which fact was well known to the defendant,” sufficiently shows negligence on the part of such city, p.238.</p> <p>4. Municipal Corporations. — Defective Sidewalks. — Proximate Cause. — Complaint.—A complaint alleging that the plaintiff was walking with due care along a sidewalk in defendant city, “wholly unaware of the dangerous condition at said point where said defect existed, and suddenly and without any fault on the part of the plaintiff * * * he was precipitated violently to the sidewalk, his feet striking the said raised flagstone at said point on said sidewalk with such force that the first metatarsal bone of the right foot was fractured and broken,” does not show that the defect in the sidewalk was the proximate cause of the injury, pp. 239,240.</p> <p>5. Negligence. — Proximate Cause. — Complaint.—A complaint for negligence must affirmatively show that the negligence complained of was the proximate cause of the injury sustained, p. 240.</p>

<p>From Criminal Court of Marion County (38,108); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Charles C. Carr. From a judgment of conviction, defendant appeals.</p>

<p>1. Appeal. — Weighing Evidence. — Want of Evidence. — The Supreme Court will not weigh conflicting evidence, and in determining whether there is evidence supporting the verdict, only that most favorable to the prevailing party will be considered, p. 274.</p> <p>2. Carriers. — Passengers.—Stopping Car at Destination. — Presumptions. — Where a passenger paid his fare to his destination and told the conductor that he desired to get off the car at such place, he had a right to assume that the car would be properly stopped at such place so that he could alight in safety, p. 275.</p> <p>3. Carriers.- — Railroads.—Care Required toward Passengers.— Railroad companies are not insurers of the safety of their passengers, but they are required to use the highest- degree of care consistent with the conduct of their business, and such care must continue until such passengers have alighted, p.275.</p> <p>4. Carriers. — Passengers.—Alighting.-—Contributory Negligence-Jury. — There being no prescribed method for passengers to alight from a car, the question of the contributory negligence of a passenger in alighting therefrom, is ordinarily for the jury. p. 276.</p> <p>5. Carriers. — Interurban Railroads.— Passengers. —Alighting. — Contributory Negligence. — A passenger on an interurban car is not guilty of contributory negligence as a matter of law because, as the car approached his station, he arose from his seat, went upon the rear platform and took a position on the steps of the car preparatory to alighting, p. 276.</p> <p>6. Negligence. — Contributory.—Burden of Proof. — Jury.—Inferences. — The burden of proving contributory negligence is upon the defendant; and it is the province of the jury to draw inferences from the facts proved, p.277.</p> <p>7. Oabeiees.— Passengers.— Injuries.— Instructions.— Proximate Cause. — The refusal of an instruction that by the term “ ‘proximate cause’ of an injury is meant the inducing cause, or the act or acts which set in motion the chain of circumstances operating in continuous and uninterrupted sequence which produced the injury complained of,” is not prejudicial, where an instruction was given that the “proximate cause is the cause not necessarily the closest in point of time to the injury of the person, but it is the cause which sets in motion the things which cause the injury.” p. 277.</p> <p>8. Cabeiees. — Injuries to Passengers. — Instructions.—Proving Complaint. — Contributory Negligence. — An instruction, in a personal injury ease, that the burden is upon the plaintiff to “prove the material allegations of his complaint by a fair preponderance of the evidence, and if he has done so the finding should be for the plaintiff, and if he has not done so, the finding should be for the defendant,” is not misleading on the ground that the plaintiff might recover thereunder regardless of contributory negligence, where the jury was informed by other instructions that contributory negligence was fatal to plaintiff’s right of recovery, p. 278.</p>

<p>1. Municipal Coepoeations. — Removing Dead Animals. — Ordinances. — Questioning Validity of. — Where a municipal ordinance provides that the right to remove carcasses through the streets of the city shall be let by contract, a person to whom the carcass of a horse has been given by the owner acquires no such property right as permits him to question the constitutional validity of such ordinance, p. 284.</p> <p>2. Municipal Coepoeations. — Ordinances.—Removal of Dead Animals. — Ownership.—Where the owner of a dead animal waives his rights thereto, the ownership of such animal vests in the person who by the city ordinance is granted the exclusive right of removal thereof, p.285.</p> <p>3. Municipal Cobpobations. — Dead Animals. — Removal of. — Ordinances. — Subject to certain rights of the owners, municipal corporations, in the exercise of the police power in the interest of health and the prevention of nuisances, have the right to confer upon certain individuals the exclusive right to remove dead animals. p. 2S7.</p> <p>4. Municipal Cobpobations. — Dead Animals. — Statutes.-—Construction. — Statutes giving cities the- power to provide for the removal of dead animals, being in the furtherance of the public health, should be construed liberally so as most effectively to further such end. p.288.</p> <p>5. Municipal Cobpobations. — Inherent Powers. — Removal of Dead . Animals. — Cities have the inherent and necessarily implied power to protect the health and lives of their citizens against dead animals, and this power may be delegated, p. 288.</p> <p>6. Municipal Cobpobations. — Nuisance.—Powers Concerning.— Subdivision seven of §8055 Burns 1908, Acts 1905 p. 219, §53, providing that common councils of cities shall have the power “to declare what shall constitute a nuisance * * * and provide for the punishment of the person or persons causing or suffering” a nuisance to exist, confers express power to punish persons for creating or maintaining a nuisance; and subdivision 53, of such section, providing that common councils shall have power “to carry out the objects of the corporation, not hereinbefore particularly specified,” gives to such councils all necessary powers not enumerated in such section, p. 289.</p> <p>7. Municipal Cobpobations. — Nuisance.-—Ordinances Condemning. ■ — Definitions.—A municipal ordinance prohibiting nuisances is sufficient if it is drawn in the language of an express statute empowering the council to prohibit nuisances; and if such ordinance fails to define a nuisance the courts will look to the statutory definition thereof, pp. 289,291.</p> <p>S. Municipal Cobpobations. — Discretion.—Nuisance.—Under a statute giving city councils power to abate nuisances, they have a wide discretion in defining a nuisance, and their decision, in doubtful cases, is controlling, though councils can not by fiat lawfully declare that to be a nuisance which by nature is not a nuisance, p. 289,</p> <p>9. Municipal Cobpobations. — Removal of Dead Animals. — Ordinances.- — Statutes.—The municipal corporations act of 1905 (Acts 1905 p. 219) neither nullifies nor repeals a city ordinance, enacted under the provisions of the act of 1875 (Acts 1875 p. 28, §4195 Burns 1901), for letting contracts to remove dead animals, though subdivision 10 of §93 thereof (§8693 Burns 1908) gives to boards of public works the power “to remove all dead animals * * * either by contract or otherwise,” and subdivision 7 of §53, thereof (§8655 Burns 1908) provides that the council shall have power “to declare what shall constitute a nuisance” and “to authorize the removal of the same by the proper officers,” the repealing clause of such act (§9016 Burns 1908, Acts 1905 p. 219, §272) providing that “all former laws within the purview of this act except laws not inconsistent herewith and enacted at the present session of the General Assembly, are hereby repealed,” since the saving clause (§8642 Bums 1908, Acts 1905 p. 219, §41) provides that “all by-laws, ordinances and regulations, not inconsistent with this act, shall remain in full force until altered or repealed by the common council of such city.” p. 290.</p> <p>10. Municipal Cobpoeations. — Ordinances.—Definiteness.—Removing Dead Animals. — A municipal ordinance providing for “the removal of the carcasses of all dead animals” and that “only such carcasses are to be removed as may lawfully be removed, and disposed of by said city,” is not void for indefiniteness, the words “dead animals” definitely importing such dead animals as in some way endanger the public health; and since there is a property right in dead animals, the ordinance should be construed so as to protect such right and to require the removal of such animals only when they are likely to become nuisances, p. 291.</p> <p>11. Municipal Cobpoeations. — Exercise of Police Power. — Property Rights. — Cities may exercise the police power though it result in the curtailment or sacrifice of property rights, p.292.</p> <p>12. Pleading. — Violating Ordinances. — Exceptions.—Complaint.— A complaint for the violation of a city ordinance need not negative the exceptions therein contained, if an offense is defined regardless of such exceptions, p. 293.</p> <p>13. Municipal Cobpoeations. — Removal of Dead Animals. — Ordinances. — Exceptions.—Complaint.—A complaint against defendant for unlawfully removing a carcass over the streets of the plaiutiif city without a right to do so is sufficient without alleging that another had such right of removal, p. 293.</p> <p>14. Municipal Cobpoeations. — Ordinances.—Violation.—Civil Actions. — A prosecution for the violation of a city ordinance constitutes a civil action, p. 293.</p> <p>15. Pleading. — Complaint.—Justices of the Peace. — A complaint before a justice of the peace i's sufficient if it informs the defendant of the nature of the claim, and a judgment thereon may be used as a bar to another action for the same cause, p. 293.</p> <p>16. Pleading. — Complaint.—Sufficiency of, to Bar Another Action. —Res Judicata. — Evidence.—Whether a matter was litigated in a former action is determined by the pleadings in such action, but if the pleadings are so general that another cause might have been litigated, extrinsic evidence is admissible to determine what was actually litigated, p. 293.</p> <p>17. Pleading. — Indefiniteness.—Motion to Malee More Specific.— Demurrer. — A motion to make more specific is the remedy for indefiniteness and uncertainty, but for an omission of an essential fact, a demurrer is the remedy, p. 294.</p> <p>18. Municipal Coepobations. — Removal of Dead Animals. — Ordinances. — Violations.—Complaint.—Each separate removal of the carcass of a dead horse in violation of a city ordinance constitutes a separate cause of action, and if a complaint joins several causes therein, the defendant may require the separate paragraphs to set out definitely the different violations, p. 294.</p>

<p>From Superior Court of Marion County (75,868); Charles T. Hanna, Judge.</p> <p>Suit by Caroline P. Tousey against the City of Indianapolis .and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Railroads. — Side-Tracks.—Condemnation of Land for.- — A railroad company, being empowered by law (§§5192, 5195, 5236 Burns 1908, §§3900, 3903, 3907 R. S. 1881, and §§929-940 Bums 1908, Acts 1905 p. 59 and Acts 1907 p. 306) to condemn lands necessary for tracks, side-tracks, switches, “depots, and other accommodations necessary to accomplish the objects for which the corporation is created,” may condemn lands for a right of way for a side-track leading to a stone quarry, where such track will be open impartially to the use of all persons desiring to use it, though the owners of such quarry will use the side-track most, p. 304.</p> <p>2. Contracts. — Partial Invalidity. — Pitblic Policy. — Railroads.— Use of Side-Tracks. — A contract by a railroad company to give the exclusive use of a side-track to one company is to that extent contrary to public policy and void. p. 310.</p> <p>3. Raileoads. — Side-Tracks.—Extensions of. — Instruments of Appropriation. — A railroad company may condemn lands for an extension of an existing side-track where the instrument of appropriation pledged that the track would be connected with the main line and form a part of the railroad’s facilities and be used in the public service though it had not theretofore acquired the property intervening between the lands sought to be condemned and the main line. p. 311.</p> <p>4. Raileoads. — Condemnation.—Appointment of Appraisers. — Re: fusal to Instruct. — The refusal of the trial court, on the appointment of appraisers in a railroad right of way condemnation proceeding, to give requested instructions to the appraisers appointed, does not constitute reversible error, the filing of exceptions to their report furnishing a remedy for any error in their proceedings, p. 311.</p> <p>5. Appeal. — Briefs.-—Waiver.—Motions.—The failure of appellants in their brief to set out the motions, the overruling of which is complained of, or the affidavits in support of such motions, or the substance thereof, waives any error therein, p. 312.</p>

From Tipton Circuit Court; Leroy B. Nash, Judge. Action by The State of Indiana, on the relation of Dora Wheatley, against Frederick W. Beck, as sheriff of Tipton county, and another. From a judgment for defendants, plaintiff appeals.

<p>1. Eminent Domain. — Right of. — The legislature has the power to determine when convenience or necessity requires the exercise of the right of eminent domain, and when not in violation of the Constitution its declaration will be upheld, p. 321.</p> <p>2. Eminent Domain. — Public TJse. — Presumptions.—Whether a particular use is public or private is a judicial question, there being a presumption, however, that a use declared to be public by the legislature is so in fact, p.322.</p> <p>3. Railroads. — Lateral.—Public Use. — Bmment Domain. — Under §§5398-5404 Burns 1908, §§3987-3993 R. S. 1S81, providing that any owner or owners of quarries may construct a lateral railroad, and for such purpose may exercise the power of eminent domain, a stone company has the right to condemn lands for a right of way for a lateral railroad “for the purpose of transporting stone for itself and for the purpose of transporting stone and other property and freight for the public generally, * * * and to act as a common carrier for hire for the public generally,” the test being, not the number of people who use the way, or whether the condemning corporation is a private or a public one, but whether the use is public, p. 322.</p> <p>4. Railroads.— Lateral.— Statutes.— Construction.— Validity.- — ■ Presumptions. — The statutes (§§5398-5404 Burns 1908, §§3987-3993 R. S. 1881) authorizing the construction of lateral railroads, are presumed to be valid until the contrary is established, and should be construed in pari materia with other railroad laws, p. 325.</p> <p>5. Railroads. — Lateral.—Building of. — Implied Agreements. — Any person, firm, or corporation, that constructs a lateral railroad under the laws of this State (§§539S-5404 Burns 1908, §§3987-3993 R. S. 1881) thereby impliedly agrees that such road shall be open to the public use, upon equal terms; and this is true regardless of the allegations of the complaint for condemnation, j). 325.</p> <p>O. Railroads. — Lateral. — Constitutional Law. — Sections 5398-5404 Burns 1908, §§3987-3993 R. S. 1881, providing for the construction of lateral railroads, are constitutional, p. 326.</p> <p>7. Corporations. — Charters.— Poioers.— Statutes. — A corporation formed under a general law has the powers legally authorized in its articles of incorporation and also all j)owers granted by the laws governing such corporations, p. 327.</p> <p>S. Corporations. — Powers.—Stone Companies. — Lateral Railroads. —A company incorporated for the quarrying of stone has the right to construct and operate a lateral railroad, p. 327,</p> <p>O. Railroads. — Lateral.—Extensions.—The use of a branch road as a portion of a proposed lateral railroad constitutes such branch road a component part of such lateral railroad and opens it to the use of the public generally, p. 328.</p> <p>10. Railroads.— Lateral.— Complaint.— Objections.— General Denial.- — A general denial does not constitute a sufficient objection to a complaint for the condemnation of a lateral railroad right of way, and raises no issue of fact or of law, the plaintiff being required to prove the essential allegations of the complaint, before appraisers are appointed, even if no objections are filed, p. 32S.</p> <p>11. Appeal. — Gross-Assignments.—When Hot Considered.- — When cross-assignments of errors present the same questions that have been determined in the direct assignment, the cross-errors will not be determined, p. 330.</p>

From Lake Circuit Court; H. L. Bare, Special Judge. Action by the City of Whiting against the Lake Shore and Michigan Southern Railway Company and others. From an interlocutory judgment for plaintiff, said company appeals.

<p>1. Appeal. — Harmless JUrror. — Sustaining Demurrer to Paragraphs of Complaint. — Special Findings. — Where the special findings set out the facts contained in the paragraphs of complaint to which a demurrer was sustained, and such paragraphs constitute merely different statements of the same cause of action sot forth in the paragraph to which the demurror was overruled, the Supreme Court may look to such findings in determining whether the error committed in sustaining such demurrer was harmless, p. 338.</p> <p>2. Corporations. — Void. — De Facto. — Partnership.—Liability of Partners. — Members of a corporation that is wholly illegal and unauthorized are liable as partners; but members of a corporation de facto, acting in good faith, under the belief that they constitute a corporation, are not liable as partners, p. 338.</p> <p>3. Corporations. — De Facto. — Stockholders.—Complaint Against. —Conclusions.—Allegations, in an action by a creditor of a dc facto corporation against the stockholders thereof, that such stockholders concealed their true relation, and that they were partners, are conclusions, p. 339.</p> <p>4. Corporations. — Special Charters. — Time of Acceptance. — Constitutional Law. — A corporation could not lawfully be formed after the adoption of the Constitution of 1851, where a special charter was granted (Local Laws 1850 p. 30) but which charter was not accepted until after the adoption of such Constitution. p. 340.</p> <p>5. Corporations. — Franchises.—Alienation.—The franchise to be a corporation cannot be alienated without the express consent of the authority creating such corporation, the charter of a corporation, therefore, being the subject of neither barter nor sale, p. 340.</p> <p>6. Corporations. — De Facto. — Oreditors.—Estoppel.—Where a corporation was chartered by a special act (Local Laws 1850 p. 30), and the charter passed by assignment to the defendants, and they exercised corporate rights under the general laws governing corporations engaged in the same business, creditors thereof, who dealt with it as a corporation, are estopped to deny the corporate existence thereof, pp. 341, 342.</p> <p>7. Corporations. — Quo Warranto. — Parties.—The State is the only party that can question a corporation’s right to do business where a de fare corporation might be formed under the law. p. 342.</p> <p>8. Corporations. — De Facto. — Essentials.—The essentials for the existence of. a de facto corporation are (1) a valid law under Which the corporation might have been formed, (2) a tona fide attempt to incorporate under such law, and (3) an actual exercise of corporate powers, p. 342.</p> <p>9. Corporations. — Void.- — Mobility of Stockholders. — Estoppel.— Unless some estoppel intervenes, stock in a void corporation is also void, and there can be no recovery thereof against the alleged holders, p. 342.</p> <p>19. Corporations. — De Facto. — Preferred Stoclc. — The holders or pledgees of preferred stock in a de facto corporation are preferred creditors thereof, and are not liable for the debts of the corporation, pp. 343, 344.</p> <p>11. Estoppel. — Creditors of De Facto Corporation. — Creditors dealing in good faith with a de facto corporation believed by the stockholders to be lawful, are estopped from asserting the invalidity of the corporation, and from charging the stockholders with the liabilities of partners, p. 343.</p>

<p>From Superior Court of Marion County (77,911); Vinson Carter, Judge.</p> <p>Suit by J. Frank Hanly against Fred A. Sims, as Secretary of State, and others. From a judgment for defendants, plaintiff appeals.</p>

From Probate Court of Marion County (8,534); Frank B. Ross, Judge. Final report by Robert C. Light,-as administrator of the estate of Jacob Cruse, deceased, to which Alfred W. Comer and others file exceptions. From the judgment rendered, said Comer appeals. Transferred from Appellate Court under §1394 Burns 1908, subdv. 2, Acts 1901 p. 565, §10.

<p>1. Quo Warranto. — Officers. — Forfeitures.—Informations.—Statutes. — Judgment.—Under §118S Burns 1908, §1131 R. S. 1881, providing, among other things, that an information may be filed against any public officer when he “shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office,” and §1189 Burns 1908, §1132 R. S. 1881, providing that such information may be filed by the prosecuting attorney, “or by any other person on his own relation, whenever he claims an interest in the office * * * which is the subject of the information,” and §1194 Burns 1908, §1137 R. S. 1881, providing that “if judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office,” an information is the proper remedy to trjr the title, determine the right to the office in question, and to oust one who forfeits his right to hold the office; and the judgment in such case requires defendant to deliver possession of the books, papers, and other things belonging to such office, p. 382.</p> <p>2. Officers. — Eligibility.—School Trustees. — Lucrative Offices.— Constitutional Law. — The office of school trustee is a lucrative office within the meaning of article 2, §9, of the Constitution providing that no person shall hold “more than one lucrative office at the same time, except as by this Constitution expressly permitted.” p. 383.</p> <p>3. Officers. — Deputy Auditor. — Eligibility.—School Trustees. — The office of deputy county auditor is a lucrative one within article 2, §9, of the Constitution forbidding any person from holding “more than one lucrative office at the same time”; and such deputy i's ineligible to hold the office of school trustee, p. 384.</p> <p>4. Officers. — 1“Office.”—What is. — An “office” is a special duty, trust or charge conferred by authority and for a public purpose, p. 384.</p> <p>5. Officers. — Deputies.—Statutes.—A person appointed as a deputy county auditor under a statute is a public officer, p.384.</p> <p>6. Oeeicees. — School Trustees. — Deputy County Auditors. — Compatibility of Offices.- — The duties of tlie offices of school trustee and deputy county auditor are in some respects incompatible, p. 385.</p> <p>7. Ofeicees.' — Vacancy in Office. — Judgment.—Elections.—Title.— Action. — A vacancy in an office may be filled without a judicial determination that a vacancy exists; and the title to an office may be determined and in the same action a judgment of ouster may be awarded, p. 386.</p>

From Jay Circuit Court; John F. LaFollette, Judge. Drainage petition by William E. McCollister and others against which Rebecca A. Rankin and others remonstrate. From a judgment for petitioners, remonstrants appeal.

From Huntington Circuit Court; Samuel E. Cook, Judge. Prosecution by the State of Indiana against Conrad Boos. From a judgment of conviction, defendant appeals. On petition for a stay of judgment pending appeal.

<p>1. Railroads. — Rights of Way. — Steam.—Interurban.—Grossing Trades. — The statutes giving to steam railroads the right to cross other steam railroad companies’ tracks (§§5195 subd. 6, 5222, 5227 Burns 1908, §§3903, 3904 R. S. 1881, Acts 1897 p. 237, §1), and the statutes giving to interurban and street railroad companies the right to cross the tracks of steam railroad companies (§ §5066, 5675 subd. 5, 5676, 5679 Burns 1908, Acts 1903 p. 125, §1, and p. 92 §§1, 3, Acts 1901 p. 461, §2), are substantially similar in granting to each class the power of eminent domain, and in requiring compensation to be paid for the rights appropriated, the differences being matters of procedure, p. 395.</p> <p>2. Eminent Domain. — Power of. — Delegation of. — The right of eminent domain — the appropriation of private property for public use — is a sovereign power of the State, and the exercise thereof may be regulated, as well as delegated, by the legislature, p. 395,</p> <p>3. Railroads. — Rights of Way. — Steam.—Inter-urdan.—Crossings.— Procedure. — Change of Venue. — Injunction.—A steam railroad company desiring to cross the tracks of another steam railroad company, as well as a street or interurban railroad company desiring to cross the tracks of a steam railroad company, must determine and set out in its instrument of appropriation the precise point at which it desires to cross such tracks, which point of crossing is then for the determination of the court; and a change of venue from the county is not demandahle in either case until after the filing of exceptions to the award of the appraisers, nor can an injunction to prevent the carrying out of an order to cross be granted pending an appeal, p.396.</p> <p>4. Constitutional Law. — Class Legislation. — Railroads.—Stemn.— Interurban. — The legislature has the right to classify steam railroads separately from street and interurban railroads, for the enactment of laws regulating the crossing of their tracks, p. 397.</p>

<p>From Vanderburgh Circuit Court; Curran A. DeBruler, Judge.</p> <p>Action by the State of Indiana, on the relation of Edward Linthicum and others, against the Board of Commissioners of the County of Vanderburgh and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Appeal. — Parties.—Persons who, though named as parties, were not served with notice of the proceeding below, and who did not appear thereto, need not be made parties on appeal, p. 408.</p> <p>2. Appeal. — Parties. — Transcript. — Presumptions. — Wills. — Judgment.- — Motion to Set Aside. — Pot-ice.—Where the transcript, on appeal, shows the filing and sustaining of a motion to set aside a judgment probating a will but excluding its codicil, and a trial resulted in a judgment for the probate of such will and the codicil, the transcript showing that the appellants and all other beneficiaries, as well as the executors and the administrator with the will annexed, were named as parties to such motion, and showing affirmatively the entering of a special appearance by such appellants to such motion, but being silent as to any notice to the other beneficiaries, or as to any appearance by them, the presumptions are that such other beneficiaries were parties to the prior judgment and that therefore they were parties to such motion to set aside, which was filed at the same term, in which case notice thereof is unnecessary, pp. 409,410.</p> <p>3. Wills. — Probate.—Parties.—Any beneficiary named in a will or a codicil thereto is a proper party to have such will and codicil probated, p. 409.</p> <p>4. Wills. — Probate.—Application for. — Oral.—An application for the probate of a wi'll may be oral. p. 409.</p> <p>5. Appeal. — Record.—Presumptions.—The proceedings of the trial court are presumed to be regular; and to secure the reversal of a case, appellants must present a record affirmatively showing harmful error, p. 409.</p> <p>6. Wills. — Probate.—Parties.—If the nominal parties to a judgment probating a will exclusive of the codicil were not really made parties thereto, a subsequent motion to set aside such probate should not only name them as parties thereto but they should be served with notice of such motion, or should appear voluntarily, otherwise jurisdiction would be wanting, p. 410.</p> <p>7. Couexs. — Records.—Authority Over. — Courts have complete control over their records during the entire term at which the proceedings in question were had. p. 411.</p>

<p>From Gibson Circuit Court; Herdis Clements, Judge.</p> <p>Suit by Bertha S. Stewart against William H. Stewart. From a decree for plaintiff, defendant appeals.</p>

<p>From Tippecanoe Circuit Court; Richard P. DeHart, Judge.</p> <p>Action by the Chicago, Indianapolis and Louisville Railway Company against Samuel L. Baugh and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Superior Court of Marion County (78,206); Vinson Carter, Judge.</p> <p>Suit by Henry W. Bullock against John C. Billheimer, as Auditor of State, and others. From a judgment for defendants, plaintiff appeals.</p>

From Carroll Circuit Court; C. W. Hanley, Special Judge. Drainage petition by George E. Eaton and others, against which Nelson B. Sharp and others remonstrate. From a judgment for petitioners, remonstrants appeal.

From Clark Circuit Court; H. C. Montgomery, Judge. Action by Mary Korbe against the Louisville and Southern Indiana Traction Company. From a judgment on a verdict for $1,000 for plaintiff, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, Acts 1901 p. 565, §10.

<p>From Fayette Circuit Court; George L. Gray, Judge.</p> <p>Prosecution by The State of Indiana against John Wilson. From a judgment of conviction, defendant appeals.</p>

From Starke Circuit Court; Francis J. Vurpillat, Judge. Action by The State of Indiana, on the relation of the Board of Commissioners of the County of Starke, against Andrew J. Laramore and others. From a judgment for defendants, plaintiff appeals.

<p>1. Schools. — Condemnation of Land for Sehoolhouse. — Petition.— Good Faith. — Presumptions.—A petition by a school township for the condemnation of land for a sehoolhouse site need not allege that the trustee of such township acted in good faith in the proceeding to condemn, the presumption being that he so acted, p. 490.</p> <p>2. Schools. — Sites for Schoolhouses.- — Condemnation.—Petition.— Nonessentials. — A petition to condemn lands for a sehoolhouse site need not allege that steps are being taken for the construction of a house thereon, nor that the trustee has been authorized to erect a sehoolhouse thereon, p. 490.</p> <p>3. Schools. — Sites for Schoolhouses. — Condemnation.—Petition.— Sufficiency. — A petition for the condemnation of land for a sehoolhouse site, alleging that the trustee of the school township desires the condemnation, for a sehoolhouse site, of certain described land, that in the opinion of the trustee of the school township such land is necessary for such purpose, that such township trustee and the owner of such land cannot agree upon a price therefor, that such township has tendered to such owner a certain sum which the owner has refused to accept, and praying for the appointment of appraisers to value such land, is sufficient when attacked for the first time on appeal, p. 491. ,</p> <p>4. Schools. — Sites for Schoolhouses. — Condemnation.—Answer.— Refusal of Permission to File. — Failure of Patrons to Change Site of Sehoolhouse. — In a proceeding to condemn land for the site of a sehoolhouse, an answer alleging that such site was at a different location from the present site, that a petition had been filed with the county superintendent for the relocation of the sehoolhouse, that the petition was signed neither by the trustee, nor by the required number of school patrons, and that a relocation would constitute an abandonment of the old site, may be stricken out on motion, or leave for filing may be denied, without prejudicial error, pp. 491,492.</p> <p>5. Appeal. — Right Result. — Where a right result was reached by the trial court, its decision will be upheld regardless of the reasons it assigned for its action.» p. 492.</p> <p>G. Schools. — Sites for Schoolhouses. — Condemnation.—Payment into Court. — Application.—Defects.—The owners of land appropriated for the use of a site for a sehoolhouse can raise no question on appeal on the ground that the court made the order for a conveyance upon an unsigned application stating that the money had been paid into court, no objection to such application having been made in the court below, p. 493.</p>

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by Jerome D. Ulay and others against William Bentle, Sr., and others. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court (see 46 Ind. App. 660).

<p>1. Municipal Corporations. — Sidewalks. — Injuries. — Notice.— Statutes. — Titles.—“Highways.”—The title of the act of 1907 (Acts 1907 p. 249) reading: “An act concerning actions against cities and towns on account of injuries resulting from defective highways and bridges,” is broad enough to cover a provision within the purview of such act (§8962 Burns 1908) making the giving of a notice to a city of personal injuries sustained because of a defective sidewalk a condition precedent to the right to maintain an action therefor, the word “highways” including streets and sidewalks, pp. 501, 503.</p> <p>2. Highways.- — Streets.—All streets are public highways, but all public highways are not streets, p. 502.</p> <p>3. Municipal Corporations. — “Street.”—Sidewallcs.—The word “street” ordinarily includes sidewalks, p. 502.</p> <p>4. Municipal Corporations. — Injuries. — Notice. — Constitutional Law. — Statutes.—Local.—The act of 1907 (Acts 1907 p. 249, §8962 Bums 1908), providing that as a condition precedent to the maintenance of an action against a city or town for personal injuries by reason of defective streets the plaintiff shall give to such city or town a certain written notice, does not violate article 4-, §22, of the Constitution providing that “the General Assembly shall not pass local or special laws * * * regulating the practice in courts of justice.” p. 503.</p> <p>5. Constitutional Law. — Special Privileges. — Cities.—Defective Streets. — Injuries.—Notice.—The act of 1907 (Acts 1907 p. 249, §8962 Burns 1908) requiring persons injured by reason of a defective street to give notice thereof to the city before bringing an action therefor does not grant special privileges or immunities, since the legislature at its pleasure may fix the liability of all municipal corporations, p. 504.</p> <p>6. Municipal Corporations. — Defective Streets. — Injuries.—Noticev — Under §8962 Burns 1908, Acts 1907 p. 249, requiring that “no action in damages * * * resulting from any defect in the condition of any street * * * shall be maintained against any city * * * unless written notice” be given, failure to give such notice precludes the right to maintain such action, and actual knowledge by a member of the common council does not dispense with such statutory notice, p. 504.</p>

<p>Bills and Notes. — Consideration. — Banins.—Overdrafts.—Rediscounting Paper. — Where a bank depositor had largely overdrawn his account, and he and the cashier of such bank executed their separate notes for $3,000 each and discounted them at another bank, a draft for the proceeds being made payable to the bank, but such depositor was credited with the entire proceeds, and when such notes became due such cashier rediscounted notes belonging to the bank and with their proceeds paid the notes executed by him and such depositor, all without the knowledge of the ofiicers of the bank, the note in suit given by such cashier and his sureties to reimburse the bank for the amounts of the notes rediscounted by such cashier is supported by a consideration, not only as to such cashier, but also as to his sureties.</p>

<p>From Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by The State of Indiana, on the relation of M. Clifford Townsend, against William P. Modlin. From a j udgment for plaintiff, defendant appeals.</p>

<p>Prom Criminal Court of Marion County (38,350); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against James M. Newby. Prom a judgment of conviction, defendant appeals.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Prosecution by The State of Indiana against John C. Brenneman. From a judgment of conviction, defendant appeals.</p>

<p>1. Appeal. — Harmless Error. — Judgment on one Paragraph of Complaint. — Rulings on Another. — Erroneous rulings upon a paragraph of complaint will not constitute reversible error, where the answers to the interrogatories to the jury show that the judgment rests upon another paragraph, p. 530.</p> <p>2. Mines. — Coal.—Statutes.—Purpose.—The coal mining acts of 18S5 (Acts 1SS5 p. 05), 1891 (Acts 1891 p. 57), and 1905 (Acts 1905 p. 05) show an increasing determination to safeguard the health and lives of the miners, p. 531.</p> <p>3. Master and Servant. — Mines.—Coal.-—Dust Explosions. — Complaint. — Proximate Cause. — Statutes.—A complaint alleging that defendant coal mining company negligently permitted the roadways and entries in its mine to become and remain so dry that the air was charged with dust, that such roadways and entries were dangerous for use and likely to create a dust explosion, that the concussion and fire from blasting caused a dust explosion therein and that the plaintiff servant was injured “solely and proximately by reason of [defendant’s] neglect in that behalf,” shows that such negligence was the proximate cause of the injury, and states a cause of action under §8579 Burns 1908, Acts 1905 p. 65, §11, providing that “in case the roadways or entries of any mine are so dry that the air becomes charged with dust, such roadways or entries shall be regularly and thoroughly sprinkled,” and further providing that “it shall be the duty of the inspector to see that this provision is carried out.” p. 531.</p> <p>4. Master and Servant. — Mines.—Coal Dust. — :Assumption of R-islc. — Complaint.—Negativing Notice. — Under §8579 Burns 1908, Acts 1905 p. 65, §11, providing that “in case the roadways or entries of any [coal] mine are so dry that the air becomes charged with dust, such roadways or entries shall be regularly and thoroughly sprinkled,” and further providing that “it shall be the duty of the inspector to see that this provision is carried out,” a servant working in a mine, knowing of such dust and continuing at work therein without promise of remedy of such condition, does not assume the risk thereof; and it is not necessary in a complaint by the servant to negative his knowledge thereof, p. 533.</p> <p>5. Master and Servant. — Goal Mines. — Negligence.—Proximate Cause. — Complaint.—A complaint by a miner against a coal mining company alleging that blasting is the necessary and customary method of mining coal, that the plaintiff and other miners were using such method, that the explosion which injured the plaintiff would not and could not have occurred but for the dust-laden air in such mine, which exploded in the ordinary course of the business of mining, shows that such dust was the proximate cause of the injury, p, 533.</p> <p>O. Appeal. — Instructions.—How Made Part of Record. — Where the judge signs and dates a memorandum at the close of instructions requested by plaintiff, stating that he determined before instructing the jury to give each thereof, and the defendant’s attorneys signed and dated a memorandum immediately thereafter, excepting to the giving of each thereof, and a like memorandum was made by the judge as to the instructions requested by defendant, by which he signified his intention of giving all said instructions save certain ones that were refused, and defendant’s attorneys made a similar memorandum excepting to the refusal of those rejected, such instructions are a part of the record under §561 Burns 109S, Acts 1907 p. 652. p.534.</p> <p>7. Exceptions, Bills oe. — Extension of Time for Filing. — How Shoion. — Appeal.—Under §661 Burns 1908, Acts 1905 p. 45, providing that if an extension of time for the filing of a bill of exceptions is “granted by the judge in vacation, such action may be indicated by a recital in the bill of exceptions itself, but if such extension is granted in term time, the same may be indicated by an order of court, duly entered on the order-book,” a bill of exceptions filed after the time first granted is not in the record, where a vacation entry on the order-book, signed by the judge, shows the granting of such extension, and where another order-book entry made in term shows the filing thereof “within the time heretofore allowed by the court, and as extended by the judge in vacation,” the bill itself reciting the filing thereof “within the time heretofore allowed, as extended by the order of the court.” pp. 534, 535, 536, 543, 544, 545, 547, 548, 549.</p> <p>8. Exceptions, Bills oe. — IIow made Part of Record. — Prior to the passage of the act of 1905 (Acts 1905 p. 45, §661 Burns 190S) no extension of time was authorized, and a recital in a bill of exceptions as to the time granted for its filing was insufficient, an order-book entry thereof being necessary, p. 535.</p> <p>9. Exceptions. Bills of. — Extensions for Filing. — Vacation Entries. — Term Entries. — Validity.—A vacation order-book entry, signed by the judge, showing an extension of time for the filing of a bill of exceptions is void, there being no statute authorizing such an entry; but an extension granted in term must be shown by such an entry, pp. 536, 544.</p> <p>10. Appeal. — Instructions.—Omission of Evidence. — In the absence of the evidence, an instruction will be considered as properly-given unless it is radically wrong under any supposable evidence within the issues, pp. 536,540.</p> <p>11. Master and Servant. — Instructions.—Confining to Evidence. —Where the court in one instruction confines the jury, in deciding the questions presented, to the evidence, if is unnecessary to repeat such instruction in others, p. 537.</p> <p>12. Master and Servant. — Damages.—Elements.—“Condition m Life.” — Instructions.—An instruction, in an action for damages by a servant against hi's master, that in determining the damages to be given, if any, the jury should consider, among other proper elements, plaintiff’s “condition in life,” does not constitute reversible error, the expression evidently being used to designate plaintiff’s physical condition resulting from the alleged injury, pp. 539, 540, 541, 550.</p> <p>13. Damages. — Award of. — Discretion of Jury. — Juries are allowed a sound discretion in awarding damages in personal injury cases, mathematical certainty in such calculations being impossible. p. 539.</p> <p>14. Damages. — Mental Anguish. — Mental anguish arising from actual physical injuries, the pecuniary loss resulting from physical injuries, loss of earning capacity, the effect of such injuries upon the earning capacity, and necessary expenses incurred because of the injuries received, are proper elements for consideration in the assessment of damages for personal injuries; and the amount given because of mental anguish, while left to the sound discretion of the jury, must be awarded in accordance with the established rules of law. p. 540.</p> <p>15. Damages. — Award of. — Rule.—Compensation.—The basis of the rule for the assessment of damages in a personal injury case is compensation for the injuries sustained, p. 540.</p> <p>16. Master and Servant. — Personal Injuries. — Plaintiff’s Condition. — Evidence.—In an action for damages for personal injuries only that evidence concerning plaintiff’s condition is admissible which tends to show his physical condition as affected by the injuries sustained, p. 540.</p> <p>17. Damages. — Excessive.—In the absence of the evidence, a judgment for $10,000 will not be considered excessive, where the complaint shows that the plaintiff was badly burned about his hands, head, arms and body, that he was injured internally by inhaling gases, smoke and dust created by a dust explosion in defendant’s coal mine, that he was permanently injured, and still suffers great pain, that he was unable to work for many months, that before such injuries, he had earned five or six dollars a day and that he had expended $200 for medical attention. p. 541.</p> <p>18. Master and Servant. — Coal Mines. — Injuries.—Complaint.— Paragraphs. — Judgment.—Interrogatories.—Where one paragraph of a complaint alleges that plaintiff employe was injured because of a dust explosion in defendant coal company’s mine, and a second paragraph alleges that such injuries were caused by a dust explosion and by the firing of illegal shots, answers to interrogatories to the jury showing that illegal drillings were made but that no shots therefrom had been fired before the explosion happened, it is sufficiently shown that the verdict rested upon the first paragraph of the complaint, p. 541.</p> <p>19. Mines. — Coal. —■ Ventilation. — Dust Explosions. — Liability.— The owner and operator of a coal mine that negligently fails to sprinkle the entries thereof, thereby causing a dust explosion, is liable for injuries caused thereby to a miner, though the provision of the statute (§8579 Burns 1908, Acts 1905 p. 65, §11) requiring entries to be sprinkled is contained in a section regulating ventilation of mines, such conclusion being emphasized by a subsequently enacted section (§8613 Burns 1908, Acts 1907 p. 347, §12) giving the mine inspector power to require such sprinkling. Indiana, etc., Coal Co. v. Neal, 166 Ind. 458 distinguished. p. 542.</p> <p>20. Exceptions, Bills of. — Right to. — Bills of exceptions are statutory. p. 544.</p> <p>21. Appeal. — Correction of Record. — tfune Pro Tune Entries.— —Unauthorized.—An unauthorized vacation entry cannot be cured or remedied by a nune pro tune entry, p. 545.</p> <p>22. Exceptions, Bills of. — Extension of Time for Filing. — Judicial Acts. — The granting of an extension of time within which to file a bill of exceptions, is a judicial act. p. 546.</p> <p>23. Courts. — Clerics' Vacation Entries. — Judicial Acts. — Estates.— Wills. — Entries made by a clerk in vacation are not judicial acts; and no vacation entries are authorized except in relation to decedents’ estates (§2726 Burns 1908, §2219 R. S. 1881) and in probating wills (§3145 Burns 190S, §2587 R. S. 1881) ; but in granting letters testamentary, or of administration, the approval of the court is required (§2760 Burns 1808, §2243 R. S. 1881). p. 546.</p> <p>24. Statutes. — Remedial.—Construction.—A remedial statute will not be extended beyond the spirit and intention thereof, though such extension might be within its letter, p. 547.</p> <p>25. Exceptions, Bills oe. — Extensions.—Procedure.-—Notice.—To secure an extension of time for the filing of a bill of exceptions, a written application therefor should be made, notice thereof should be given to the Opposite party, and the endorsement of the judge granting the extension should be made upon the application; and such matters should all be incorporated in the bill of exceptions in order to show such extension if granted in vacation, p. 54S.</p> <p>26. New Trial. — Receivers. — Bonds. — Recognizances.—Vacation Acts of Judge or Cleric. — A new trial as of right cannot be granted in vacation, nor, under the prior statute, could a receiver be appointed by the judge, or a receiver’s bond be approved by the clerk; and a forfeiture of a recognizance in vaca- - tion is void. p. 549.</p> <p>27. Appeal. — Determination of Case. — Harmless Error.- — Hoio Blioton. — Erroneous rulings are presumed to be harmful, but the court may examine the entire record and from it determine whether such rulings may not be harmless, p. 550.</p> <p>28. Master and Servant. — Contributory Negligence. — Burden of Proof. — Instructions.—An instruction, in a personal injury case, that “the burden of proving * * * contributory negligence, if any existed, rests upon the defendant, and before such defense can avail the defendant, it must be established by the preponderance of the evidence,” is not erroneous, especially where another instruction informed the jury that if plaintiff was “free from contributory negligence, and was in the exercise of care and diligence for his own safety, he would be entitled to recover if the material allegations of his complaint were proved.” p. 551.</p> <p>29. ■ Master and Servant. — Coal Mines.- — Bprmlclmg.—Duties of Master. — Instructions.-—Assumption of Rislc. — An instruction, in an action by a miner for injuries sustained by a dust explosion, that “the servant must use his faculties in ascertaining whether or not danger actually exists, if it is apparent, or open to view,” and that “he is not bound to be looking out, or searching, for latent or hidden dangers, nor is he charged with knowledge of the dangerous conditions of the place i'n which he is required to work, if it is the master’s duty to make it safe, for the servant is justified in assuming, within reasonable limits, that the master has performed his duty, and he is also justified in acting upon that assumption, within reasonable limits,” is more favorable to defendant than to plaintiff, where the negligence complained of was defendant’s failure to sprinkle the entries in its coal mine, as required by §8579 Burns 1908, Acts 1905 p. 65, §11, thereby causing a dust explosion, to plaintiff’s injury, p. 553.</p> <p>30. Appeal. — Determination of. — Instructions on one Paragraph.— Judgment on Another. — Harmless Error. — The refusal of the court to give a correct instruction applicable only to one paragraph of a complaint is harmless, where the judgment rests upon another, p. 554.</p>

<p>From Floyd Circuit Court; William C. TJtz, Judge.</p> <p>Suit by the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company against Elizabeth Barth and others. From a decree for plaintiff, defendants appeal.</p>

<p>From Posey Circuit Court; Walter S. Jackson, Special Judge.</p> <p>Action by Emily Kinclieloe against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1394 Burns 1908, subd. 2, acts 1901 p. 565, §10.</p>

<p>From Laporte Circuit Court; John C. Richter, Judge.</p> <p>Action by David N. Poole against tbe Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $11,500, defendant appeals.</p>

<p>1. Wills. — Contest after Probate. — Insanity.—Burden of Proof.— Instructions. — In an action to contest a will, after probate thereof, the evidence showing that at the time of the execution of the will the testator was under guardianship as a person of unsound mind, an instruction that the existing adjudication of unsoundness of mind constituted prima facie evidence of unsoundness of mind, and that the jury should consider all the evidence in connection with such presumption, and if a fair preponderance of the evidence showed that testator in fact had a sound and disposing mind, at the time of executing the will, and that he executed it freely and understandingly, without undue influence, the verdict should be for defendants, otherwise, for plaintiff, is erroneous, the burden of proof being upon the plaintiffs to establish the unsoundness of testator’s mind notwithstanding such prima facie presumption. Stevens v. Stevens, 127 Ind. 500, and Harrison v. Bishop, 131 Ind. 161, distinguished, p. 581.</p> <p>2. Wills. — Contest.—Burden of Proof. — Conflicting Instructions. —Where the court in one instruction in a will contest incorrectly states the law as to the burden of proof, and in another, correctly states the law thereon, the error is not cured, such error being cured only by withdrawing the erroneous instruction, p. 584.</p>

From Warren Circuit Court; J. T. Saunderson, Judge. Action by Abigail H. Hart, as administratrix of the estate of Jane Hawkins, deceased, against Minerva H. Ditton and others. From a judgment for plaintiff, defendants appeal.

<p>1. Perjtjby. — Courts.—Mayor.—Evidence.—Variance.—In a prosecution for perjury in which the affidavit charges the alleged offense to have been committed before the duly elected, qualified and acting judge of the city court of Huntington, and that defendant was sworn by such judge, evidence showing that the trial at which the alleged offense occurred was before the mayor of Huntington, acting as city judge, and that defendant was sworn by such mayor, constitutes a fatal variance from the affidavit. pp. 598, 600.</p> <p>2. Evidence. — Judicial Notice.- — Huntington.—Class of. — City Court. —Courts take judicial notice that in 1910 the city of Huntington was a city of the fifth class within §8840 Burns 1908, Acts 1905 p. 219, §215, and that under §8644 Burns 1908, Acts 1905 p. 219, §43, the duties of the city judge of a city of the fifth class devolved upon the mayor of the city, p.599.</p> <p>3. Perjuby. — Indictment.—Essentials.—An affidavit for perjury must set forth a correct legal description of the court or tribunal before whom the perjury is alleged to have been committed, as well as a correct description of the officer who administered the oath, and the proof must support such allegations, p. 600.</p>

<p>1. Appeal. — Interlocutory Orders. — Receivers.—Appeal Bond. — Approval. — In a term-time appeal from an interlocutory order appointing a receiver, the surety on the appeal bond must be approved by the judge, p. 005.</p> <p>2. Appeal. — Interlocutory Orders. — Receivers.—Transcript.—Time for Filing. — Extensions.—Under §1289 Burns 1908, §1231 R. S. 1SS1, providing, among other things, that from an interlocutory order appointing, or refusing to appoint, a receiver, “the party aggrieved may, within ten days thereafter, appeal * * * to the Supreme Court,” the transcript must be filed with the Clerk of the Supreme Court within such ten days, and such time cannot be extended by agreement, p. 606.</p> <p>3. Appeal. — Interlocutory Orders. — Receivers.—Statutes.—Appeals from interlocutory orders appointing, or refusing to appoint, a receiver, must be taken under §12S9 Burns 1908, §1231 R. S. 1881, providing, among other things, that in all suits in which “a receiver may be appointed or refused, the party aggrieved may * * * appeal * * * without awaiting the final determination of such ease',” and not under §6SS Burns 1008, §647 R. S. 1881, providing the method of taking appeals from interlocutory orders in civil cases, pp. 606, 607.</p> <p>4. Appeal. — Interlocutory Orders. — Appeal Bonds. — Time for Filing. — Under §688 Burns 1908, §647 R. S. 1S81, providing generally the method of taking appeals from interlocutory orders in civil cases, an interlocutory order made in term-time cannot be appealed from in vacation, the bond in such case being required to be filed during the term. p. 606.</p> <p>5. Appeal. — Vacation.—Interlocutory Orders. — notice.—In a vacation appeal from an interlocutory order made in vacation and in the absence of the adverse party, notice of such appeal is required, p. 606.</p> <p>6. Appeal.' — When “Taken." — An appeal is “taken” when all the steps pointed out to confer jurisdiction upon the Supreme Court have been taken, p. 607.</p> <p>7. Appeal. — Term-Time.—Approval of Bond.- — Filing.—Where a . term-time appeal is desired, the penalty of the appeal bond must be fixed, and the sureties thereon approved, by the judge, the subsequent filing thereof by the clerk being a ministerial act. p. 607.</p> <p>8. Estoppel. — Failure to Speak. — A party cannot be estopped by silence unless it was his duty to speak, p. 610.</p>

From Owen Circuit Court; Joseph W. Williams, Judge. Action by The State of Indiana, on the relation of William Galimore and another, against the Owen County Council and others. From a judgment for plaintiff, defendant Owen County Council appeals.

<p>1. Injunction. — Temporary.—Prevention of Trespass upon Land m Plaintiff’s Possession. — In a suit to quiet title a temporary injunction may be granted, as ancillary relief, to prevent the defendant from tresspassing upon land in plaintiff’s possession, where the object of the trespass is to remove the oil or gas under such land, or some other part of the substance of the land. p. 625.</p> <p>2. Injunction. — Oil and Gas Wells. — -Complaint.—Inferences.—An allegation in a complaint to enjoi'n defendants from sinking an oil and gas well upon plaintiff’s land, that defendants had unlawfully entered upon such lands with a drilling rig and were threatening to sink an oil and gas well, and would do so, unless restrained, sufficiently shows a purpose on the part of defendants to remove the oil and gas found, p. 625.</p> <p>3. Injunction. — Temporary. — Complaint.—Discretion.—Evidence. —Appeal.—On an appeal from an interlocutory order granting a temporary injunction the complaint will not be subjected to any technical tests, nor will the trial court’s discretion in granting such injunction be interfered with, where there is no abuse of such discretion, the rule being that such order will be upheld where the complaint and the evidence show that the transaction in question is a proper subject for investigation in a court of equity, p. 625.</p> <p>4. Injunction. — Temporary. — Contract. —Construction.—Discretion of Court. — The granting of a temporary injunction in reference to the property in litigation is largely discretionary with the trial court, ánd though the ultimate decision of the case depends upon the construction of a contract, such construction does not enter into the question of the propriety of granting such injunction, p. 626.</p> <p>5. Contracts. — Gas and Oil Leases. — Rentals.—Forfeitures.—A gas and oil lease providing that in case no well was sunk on the premises as provided in the contract “within 120 days from thi's date, then this grant shall become null and void” unless the lessee “shall thereafter pay to the first party [the owner] at the rate of $20 for each month thereafter such commencement is delayed,” does not create the relation of landlord and tenant, and a failure of the lessee, where no well was sunk, to make the payments as stipulated, followed by a notice from the owner of a forfeiture of the contract, determines such contract, p. 627.</p>

<p>From Superior Court of Marion County (78,679); John L. McMaster, Judge.</p> <p>Suit by the Chicago, Indianapolis and Louisville Railway Company against the Railroad Commission of Indiana. From a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Marion County (79,503); P. W. Bartholomew, Judge.</p> <p>Action by Joseph W. Selvage against Henry M. Talbott. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Criminal Daw. — Dogs.—Failure to Pay Tax on. — Statutes.— When construed with §3261 Burns 1908, Acts 1897 p. 178, §4, providing that “any person who shall keep or harbor any dog, and Shall not have paid the township assessor” the proper dog tax “and received his receipt for such payment” shall be subject to a fine, and §10202 Burns 1908, Acts 1003 p. 49, §32, providing for the listing of dogs by the township assessor, and §3258 Burns 1908, Acts 1897 p. 178, §1, providing that, at the time of assessing, the person owning, harboring, or keeping any dog shall immediately pay the tax thereon, §3206 Burns 190S, Acts 1897 p. 178, §9, providing that “it shall be a misdemeanor for any person who does not hold the township assessor’s or township trustee’s receipt” for the payment of dog tax, “to keep, harbor, board or feed, or permit any dog to stay about his, her or their premises,” defines the offense of keeping, harboring, boarding, feeding, or permitting to stay about the premises, any dog not listed for taxation on the assessment schedule, whether kept or harbored at the time of the assessment or afterward, without holding a receipt for the payment of the tax thereon, and §3261, supra, applies only where the dog is listed but the owner has failed to pay the tax thereon, p. 655.</p> <p>2. Criminal Law. — Dogs.—Failure to Pay Tax on. — Instructions. —In a prosecution under §3266 Burns 1908, Acts 1897 p. 178, §9, providing that “it shall be a misdemeanor for any person who does not hold the township assessor’s or township trustee’s receipt” for dog tax “to keep, harbor, board or feed, or permit any dog to stay about” his premises, a peremptory instruction for defendant should be given, where the evidence shows that defendant listed his dog for taxation, the dog being present, and that such owner failed to pay the tax, such failure constituting a violation of §3261 Burns 1908, Acts 1897 p. 178, §4, providing that “any person who shall keep or harbor any dog, and shall not have paid the township assessor the tax” shall be subject to a fine, a conviction under the former constituting no bar to a prosecution under the latter, p.653.</p>

<p>1. Drains. — Commissioners. — Defective Reports. — Jurisdiction.— Appeal. — The failure of drainage commissioners to show in their report that they have so located the ditch and fixed its size and dimensions as to provide “ample means for the drainage or protection from overflow of the land to be affected, having in view future contingencies as well as the present,” as required by §6142 Burns 1008, Acts 1907 p. 508, §3, does not affect the jurisdiction of the court to render judgment; and the questions of the size and dimensions of the ditch may be put in issue and tried under §6143 Burns 1908, subd. 10, Acts 1907 p. 508, §4, but they cannot be presented for the first time on appeal, p. 660.</p> <p>2. Drains. — Assessments. ■ — ■ Defective Descriptions. —Correction after Judgment. — In a drainage proceeding, defective descriptions of land against which assessments are made may be corrected after judgment, p. 661.</p>

From Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by the State of Indiana, on the relation of the City of LaFayette, against Lee Duncan, as Treasurer of Tippecanoe County and ex oficio Treasurer of the City of LaFayette. From a judgment for defendant, plaintiff appeals.

<p>From the Criminal Court of Marion County (38,941); James A. Pritchard, Judge.</p> <p>Prosecution by The State of Indiana against Earl H. Painter. From a judgment of conviction, defendant appeals.</p>

<p>Bills and Notes. — Mortgages.—Innocent Purchasers. — Subsequent Purchasers with Notice of Equitable Liens. — Where a person loaned money to the record owner of land without notice of the equitable lien of such owner’s wife, taking a promissory note for such loan and a mortgage executed by such owner and his wife on such land as security therefor, and such person died, his will bequeathing such note and mortgage to his widow, such mortgage can be enforced by a purchaser from the legatee as a lieu superior to the equitable lien of such wife, though such purchaser at the time of his purchase knew of the wife’s equitable rights.</p>

From Grant Circuit Court; 11. J. Paulus, Judge. Drainage proceedings by William D. Hodge and others, against which the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company remonstrates. From a judgment for petitioners, remonstrant appeals.

From Probate Court of Marion County (335); Frank B. Boss, Judge. Action by Thomas H. Spann, as executor of the last will of Agnes C. Brown, deceased, against Effie C. Skinner and others. From the judgment rendered, Effie C. Skinner and another appeal.

<p>1. Appeal. — Jurisdiction.—Final Judgment. — No appeal lies from a ruling sustaining a demurrer to a complaint, nor from any but final judgments unless expressly so provided by statute, p. 706.</p> <p>2. Appeal. — Jurisdiction. — Judgment. — Sustaining Demurrer to Complaint. — A judgment in form: “The demurrer to tlie amended complaint is now sustained by the court, to which ruling of the court the plaintiff excepts,” and that “it is therefore considered and adjudged by the court that the defendant recover of the plaintiff his costs,” is not final, and no appeal lies therefrom, p. 706.</p> <p>3. Appeal. — Jurisdiction.—Dismissal.—An appeal taken from an order sustaining a demurrer to a complaint will be dismissed since such order does not constitute a final judgment, p. 707.</p>

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

<p>From Vanderburgh Circuit Court; Alexander Gilchrist, Judge.</p> <p>Action by the Evansville Terminal Railway against Joseph F. Reitz and another. From a judgment for plaintiff, defendant appeals.</p>

<p>From the Marion Circuit Court (18,095); Charles Bemster, Judge.</p> <p>Action by Nathan S. Cook against the Board of Commissioners of the County of Marion. From a judgment for defendant, plaintiff appeals.</p>

From Huntington Circuit Court; Samuel E. Goolc, Judge. Petition by Mary Brown against the City of Huntington, for a reassessment of benefits in a street improvement proceeding. From a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)

<p>From Floyd Circuit Court; William O. XJiz, Judge.</p> <p>Prosecutions by the City of New Albany against Rudolph Alies and another. From judgments for plaintiff, defendants appeal. Affirmed.</p>