Volume 176 — Indiana Reports

<p>1. Wobk and Lajbob.— Wages.— Contracts.— Breach.— Liquidated Damages. — "Where a laborer shows that there is due to him from defendant company for labor performed a certain sum, the defendant cannot avoid payment on the ground that such laborer proposed that he would work for defendant for five years, as paste mold gatherer, conditioned upon its acceptance thereof within five days, that the company should retain five per cent of his wages as liquidated damages if he should fail so to work, that he failed so to work, and that the sum retained was such five per cent, where the evidence failed to show that the company accepted such proposal, and where it showed that he worked as paste mold gatherer three days and then was set to work at “blowing.” p. 2.</p> <p>2. Constitutional Law. — Attorneys’ Dees. — Defendants’ Liability for, in Cases for Wages. — Sections 7996, 7999 Burns 1908, Acts 1S87, p. 13, §§1, 4, requiring wages to be paid at least bi-weekly and providing that for a failure to pay, after a ten days’ demand, defendant shall be liable to a penalty “and a reasonable attorneys fee,” are constitutional, p. 4.</p>

From Jay Circuit Court; John F. LaFollette, Judge. Action by Martin L. Rupel and others against the Ohio Oil Company and others. From a judgment for defendants, plaintiffs appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>1. Cbimiisal Law. — Indictment.—Offering Diseased Horse for Sale. Statutes. — Under §2508 Burns 1908, Acts 1907, p. 100, providing that “whoever shall offer for sale * * * any horse * * * knowing the same to be * * * ‘broken winded,’ * * * and shall conceal the existence of such disease from the person to whom he is offering such animal for sale” shall be fined, an indictment charging that defendants did “unlawfully offer for sale * * * a certain horse for $165.90 * * *; that said horse was then and there ‘broken winded,’ said [defendants] then and there well knowing said horse to be ‘broken winded’ * * * and did then and there conceal the existence of such disease from [the vendee] and did then and there * * * effect the sale of said diseased horse,” is sufficient, the charge of the use of a trick or artifice being unnecessary under the first part of the statute, and the charge of effecting the sale being surplusage. p. 14.</p> <p>2. Ckimixal Law. — Motion for New Trial. — Time for Wiling.— Waiver. — A motion for a new trial must be filed within thirty days from the return of the verdict; and a right to file it later cannot be granted by- the trial court, and error of the trial court in allowing it to be filed later cannot be waived by the failure of the Attorney-General to point out such defect in his brief on appeal, p .15.</p>

<p>1. Municipal Coepobations. — Disannexing.—Legislative Question. —The power of annexing or disannexing territory by a city is legislative; and it may be exercised without the consent of the persons interested, p. 17.</p> <p>2. Municipal Coepobations.— Powers.— Doubts.— Municipal corporations have only such powers as are expressly granted, or fairly implied from the powers expressly granted; and doubts of power are resolved against such corporations, p. 18.</p> <p>3. Municipal Coepobations. — Boundaries. — Change. — Municipal corporations can alter their boundaries only in the manner authorized by statute, p. 18.</p> <p>4. Municipal Coepobations. —Disanmexation.— Validity. — Taxation. — Recovery of Taxes. — Complaint.—A complaint to recover taxes alleged to have been illegally collected by a city, averring that the plaintiff’s land had been disannexed, to be sufficient must further show that the plaintiff filed a petition for disannexation, or was a party to the proceedings, the statute (§4230 Burns 1901, §3248 R. S. 1881) providing that “the common council of any city * * * is hereby authorized * * * on the application of any owner of any * * * tract of land not laid out in lots * * * so to modify the boundaries of such city * * * as to exclude therefrom such * * * tracts of land.” p. 18.</p>

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Action by Calvin S. Penrod, as administrator of the estate of George Grey, deceased, and others against Timothy J. Driscoll and others. Prom a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>1. Cobpobations. — Stoclc.—The capital stock of a corporation is the sum of money fixed by the charter thereof as the amount paid, or to be paid, by the stockholders for the prosecution of the business of the corporation; and such stock belongs to the eoi*poration, but the shares are the property of thie shareholders, p. 27.</p> <p>2. Corporations. — Assets.—Stock.—The capital stock of a corporation does not vary, though the assets may. p. 28.</p> <p>8. Corporations. — Stock.—Certificates.—A certificate of stock is a written acknowledgement by the corporation of the shareholder’s interest in the corporate property, and entitles the owner to his ratable share in the proceeds of the assets of the corporation after its debts are paid. p. 28.</p> <p>4. Contracts. — Breach.—Corporations.—S took. — Instructions.—■ In an action for damages for the breach of a contract to cause certain stock of a corporation to be transferred to plaintiff, an instruction for the purpose of determining the value of the stock in question that “the stock of a corporation is liable for the bona fide debts of the corporation,” instead of stating that all the property of the corporation is liable for its debts, is not prejudicial to defendant, p. 28.</p> <p>5. Contracts. — Breach.—Corporations.-—Stock.—Value.—Row Determined. — Instructions.—-In an action for damages for the breach of a contract to cause certain shares of stock in a corporation to be conveyed to the plaintiff, an instruction for the purpose of determining the value of the stock in question that “the value of the stock of a corporation may * * * be determined by the debts of the corporation,” is not prejudicial to the defendant. p. 28.</p>

<p>1. Work and Labor. — Parties.—Evidence.—•Motion to Dismiss.— Directing Verdict. — In an action by plaintiff for work and labor performed, and for board for defendant’s servants, a motion to dismiss tbe action and to direct a .verdict for defendant on the ground that plaintiff bad a partner in the performance of suck labor, wbo was not made a party, was properly overruled, where the plaintiff’s right to recover for such board was unquestioned. p. 30.</p> <p>2. Trial. — Motion to Direct Verdict. — Waiver by Introducing Evidence. — Any error in overruling a motion to direct a verdict for defendant is waived by defendant’s subsequent introduction of evidence in his favor, p. 31.</p> <p>3. Work and Labor. — Evidence.—Appeal.—Parties.—Partners.— In an action by plaintiff for work and labor performed in sawing lumber, a judgment for the plaintiff will not be set aside on the ground that he had a partner and that such partner was not made a party to the action, where the evidence showed that the plaintiff and the defendant alone made the contract and that such alleged partner was to receive a portion of the profits only, sharing in losses as well as profits being essential to a partnership. p. 31.</p>

<p>1. Drains.— Repairs.— Assessments.— Deputy Surveyors.— Under §9515 Burns 1908, Acts 1899, p. 119, providing that “all services now required of county surveyors by law may be done by any regularly appointed deputy county surveyor,” a deputy county surveyor may make assessments for repairs of public drains, p. 35.</p> <p>2. Drains. — Repairs. — Surveyors. — Mandamus, -r- Complaint. —A complaint to compel a county surveyor to accept as completed a certain ditch which relator had contracted to repair, alleging that the contract required such repairs to be completed by September 1, 1906, but that it was understood that time was not of the essence of the contract, that a certain part of the repairs were completed at such date, that owing to labor conditions and other things the other parts were not completed at such time, that the part first completed was built through quicksand and that neither tiling nor curbing was specified, and that before the remainder of the work was completed the repairs in the quicksand portion had been destroyed by the action of quicksand and other things, and demanding that such surveyor be required to accept such repairs as completed, is insufficient, p. 37.</p> <p>3. Drains. — Repairs.—Contracts.—Construction of. — Contracts for the repair of drains must be construed as entire and not as capable of completion by piecemeal; and the contractor cannot justify his failure to complete the work at the time specified because of the weather, or of labor conditions, pp. 37,39.</p> <p>4. Statutes. — Permissive.—When Held Mandatory. — Where the interests of the public, or of private persons are involved, permissive statutes are held mandatory, p. 37.</p> <p>5. Evidence. — Judicial Notice. — Action of the Elements. — Courts take judicial notice of the action of the elements, that ditches will fill up, that grass and other obstructions to ditches will make great progress in two years, and that only by making repairs on ditches approximately within the time fixed can they be kept open and the benefits received for which the assessments were made. p. 38.</p> <p>6. Drains. — Failing to Keep in Repair. — Liability of Trustees and Surveyors.— Bonds.— Township trustees and county surveyors are liable upon their official bonds for failure to keep ditches in repair, p. 38.</p> <p>7. Officers. — Duties.—Waiver.-—Contracts.-—Public officers cannot waive public rights by acquiescence in delay in performing contracts. p. 38.</p> <p>8. Mandamus. — Officers.—-Duty.-—Mandamus lies to compel a public officer to act only where it is his plain legal duty to do so. p. 39.</p> <p>9. Mandamus. — Injustice.—Mandamus does not lie where relator is at fault, or where injustice would result, p. 39.</p> <p>10. Drains. — Repairs.—Surveyors.—Liability to Contractors. — A surveyor may be liable on his official bond for neglect or refusal to perform any duty owing to a contractor in repairing drains, p. 40.</p>

<p>Prom Gibson Circuit Court; Frank H. Hatfield, Special Judge.</p> <p>Action by The State of Indiana, on the relation of Harry Stinson, as Auditor of Vanderburgh county, against John P. Walker and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Wore and Labor.— Contracts.— Breach.— Pistification.— Evidence that an employe of a glass company quit work because of the bad material furnished to him, rendering it impossible to make a living, supports a decision justifying a breach of such employe’s contract to work for such company for five years, p. 70.</p> <p>2. Appeal. — Briefs.—Waiver.—Points not discussed are waived, p. 70.</p>

From Wells Circuit Court; Charles E. Sturgis, Judge. Action by The State of Indiana, on the relation of Clara Harnish, against John II. Bender, as administrator of the estate of Charles W. Bender, deceased. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>1. Courts. —• Appellate. — Jurisdiction. —■ Contracts. — Statutes. —Validity.—Section one of tlie Acts of 1911 (Acts 1911, p. 201) giving to tlie Appellate Court final jurisdiction in eases of all money judgments for damages, or for ordinary breacli of contract, gives sucb court power to construe statutes and to interpret contracts involved in such eases, p. 77.</p> <p>2. Constitutional Law. — Appellate Court Act. — Duties of Cleric. —The constitutional validity of the act of 1911 (Acts 1911, p. " 201) fixing the jurisdiction of the Supreme and Appellate Courts and directing the Clerk of the Supreme Court to distribute the appealed cases in accordance with the provisions of such act, may be determined on a petition by such clerk to the Supreme Court to be advised as to his duty in the premises, p. 78.</p> <p>3. Constitutional Law. — Supreme Courts. — Poioer to Establish.— The legislature has no power to establish an additional Supreme Court, p. SO.</p> <p>4. Appeal. — Right of. — 'The right of appeal concerns all the people of the State, and is not .of concern to litigants alone. Morris, J., dissents, p. 80.</p> <p>5. Courts: — “Supreme.”—Meaning of. — A “Supreme” court imports the highest court — that one invested with controlling jurisdiction. p. 81.</p> <p>O. Courts. — Supreme.—Prerogatives.—The Supreme Court will maintain its own prerogatives, p. 81.</p> <p>7. Courts.— Supreme. — • Jurisdiction.— Constitutional La/io.— The constitutional functions and powers of the Supreme Court cannot be restricted nor diminished by the legislature, p. 83.</p> <p>8. Courts. — Appellate.—Supreme.—Statutes.—The Appellate Court was created in 1891 (Acts 1891, p. 39) for a temporary purpose, and in 1901 (Acts 1901 p. 505) it was made permanent, the number of judges was increased, and its final jurisdiction curtailed ■ by giving to unsuccessful litigants the right to petition for a transfer of their cases to the Supreme Court, p. 84.</p> <p>9. Constitutional Law. — Supreme and Appellate Courts. — Jurisdiction. — Statute.—The act of 1911 (Acts 1911, p. 201) defining the jurisdiction of the Supreme Court and making the decisions of the Appellate Court final in certain classes of eases, including ordinary money judgments on contracts and for personal injuries, encroaches upon the domains of the Supreme Court and is, therefore, to that extent, unconstitutional. Morris and Cox, JJ., dissent. p. 90.</p> <p>10. Courts. — Supreme. — Appellate. ■ — - Supremacy. — Statutes. —The act of 1911 (Acts 1911, p. 201) defining the cases appeal-able to the Supreme Court, and providing that all others shall be taken to the Appellate Court, whose decisions shall be final, does not give due regard for the supremacy of the Supreme Court, though §1429 Burns 1908, Acts 1893, p. 29, §3, provides that “the Appellate Court shall be governed in all things by the law as declared by the Supreme Court of this State.” Myers, J., concurs. Morris and Cox, JJ., dissent. _ p. 95.</p> <p>11. Courts. — Supreme.—Judges.—Duty.—It is the duty of the Judges of the Supreme Court to respect their oath and to uphold and maintain the constitutional powers and authority invested in such court, p. 97.</p> <p>12. Constitutional Law. — Statutes. — Void in Part. — Appellate Court. — Distribution of Cases to. — Section three of the act of 1911 (Acts 1911, p. 201) requiring the Clerk of the Supreme Court to distribute cases evenly between the aivisions of the Appellate Court being inclepenfient of the other portions of the act, is valid, though the remainder thereof, defining the jurisdiction of the Supreme Court and making final the decisions of the Appellate Court, is void. p. 97.</p>

<p>From Gibson Circuit Court, O. M. Welborn, Judge.</p> <p>Action by Kate B. Daniels, as administratrix d& bonis non, with the will annexed, of the estate of William D. Daniels, deceased, against Abby D. Bruce and others. Prom an interlocutory order for plaintiff, she appeals.</p>

Prom Saint Joseph Circuit Court; Walter A. Funk, Judge. Action by The State of Indiana, on the relation of Nellie Barnes and others, against George A. Kesling and others. Prom a judgment for defendants, plaintiff appeals.

<p>Raiuroads. — Rights of Wag. — Failure to Comply with Statutes.— Forfeitures. — In an action by a steam railroad company to condemn a right of way, an answer that such company did not, within three years after its incorporation begin the construction of its road and expend five per cent of the amount of its capital, is bad, since §5318 Burns 1908, §3930 R. S. 1881, providing that “if any such [railway] corporation shall not, within three years after its incorporation, begin the construction of its road, and expend thereon five per cent of the amount of its capital, and finish the road and put it in full operation in ten years thereafter, its act of incorporation shall become void,” does not render such act of incorporation void, but merely gives the State a right, in an appropriate action, to forfeit such charter.</p>

<p>1. Statutes. — Depositing Vetoed Act with Secretary of State.— Laying Before General Assembly “at its next Session.” — The phrase “at its next session,” as used in article five, §14, of the Constitution, providing that bills vetoed by the Governor after the adjournment of the General Assembly shall be deposited “in the office of Secretary of State, who shall lay the same before the General Assembly, at its next session,” means the first session following, whether regular or special, pp. 108,169.</p> <p>2. Statutes. — Passage.—Special Sessions. — Powers.—Special sessions of the legislature are not limited in their powers to legislate. p. 109.</p> <p>3. Constitutional Law.- — Construction of Doubtful Provisions.— Constitutional Debates. — In determining the meaning of doubtful provisions of the Constitution the courts will examine the debates thereon in the constitutional convention, p. 169.</p> <p>4. Statutes. — Passage Over Veto. — Failure of Secretary of State to Lay Vetoed Bill Before Extra Session. — A bill vetoed by the Governor after the close of the session of the General Assembly and deposited by him with the Secretary of State does not become a law on its passage over his veto at the next regular session of the General Assembly, where a special session intervened and such bill was not laid before it. Jordan, J., dissents, p. 170.</p> <p>5. Oeeicees. — Secretary of State.- — -Duties.—Statutes.—The Secretary of State is not the agent of the Governor in transmitting bills vetoed after the adjournment of the General Assembly to the next session of the General Assembly', p. 170.</p> <p>6. Statutes. — Secretary of State. — Failure to Transmit Vetoed Bills. — Remedy.—The General Assembly has the power to compel the Secretary of State to lay before it bills vetoed by the Governor after the close of the previous session, p. 171.</p> <p>7. Constitutional Law. — Construction.—Courts cannot substitute for clear constitutional provisions their own notions of what such provisions should have been. p. 172.</p> <p>8. Statutes. — Enactment.—Judicial Notice of Steps Talcen.— Courts take judicial notice, without any allegations thereof in the pleadings, of the steps taken in the passage of a statute, p. 172.</p>

<p>From Posey Circuit Court; O. M. Welborn, Special Judge.</p> <p>Action, by tbe City of Mt. Vernon against the Cumberland Telephone and Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>From the Marion Circuit Court (20,081); Charles Remster, Judge.</p> <p>Action by The State of Indiana, on the relation of Philip Devening, against Pliny W. Bartholomew. From a judgment for defendant, plaintiff appeals.</p>

<p>From Marion Circuit Court (17,892); Charles Remster, Judge.</p> <p>Suit by Henry W. Bullock against Edward J. Robison, as Treasurer of Marion county, and others. From a judgment for defendants, plaintiff appeals.</p>

Prom Porter Superior Court; Harry B. Tuthill, Judge. Application by James P. Scanlon for license to retail intoxicating liquor, against which George E. Deuel and others remonstrate. Prom a judgment for remonstrants, applicant appeals.

<p>1. Appeal.— Briefs.— Rules.— Waiver.— Though appellant’s brief docs not strictly comply with the rules of the Supreme Court, the court may consider the questions sought to be presented, p. 210.</p> <p>2. Rape.— Physical Examination of Victim.— Evidence.— Physicians. — The testimony of physicians as to the physical condition of a child on whom the crime of rape was alleged to have been committed, is admissible in a prosecution for such crime, though their testimony did not connect defendant with the crime charged, p. 217.</p> <p>S. Rape. — Essentials.—Evidence.—To procure a conviction for rape it is necessary for the State to prove beyond a reasonable doubt the corpus delicti and defendant’s agency as the cause; and testimony tending to prove either element is admissible in the prosecution. p. 217.</p> <p>4. Rape.— Infants.— Corptis Dilioti.— Elements.— Proof that the victim of an alleged rape was not twelve years old and that she had been sexually used sufficiently shows the corpus delicti of rape. p. 217.</p> <p>5. Rape. — Evidence.—Testimony that an infant girl eleven years old had been sexually used, that the victim had complained of such treatment, and that defendant admitted the crime before trial and upon his arraignment in preliminary examination, sustains a verdict of guilty, though defendant contradicted such testimony at the trial, pp. 218,220.</p> <p>6. Rape. — Evidence.—Complaints of Victim. — In a prosecution for rape, testimony of the complaints of the victim, though dead, is admissible; but proof of what she said is not competent, p.218.</p> <p>7. Criminal Law. — Corpus Delicti. — Circumstantial Evidence. — ■ Proof of the corpus delicti may be shown by circumstantial evidence. p. 218.</p> <p>8. Criminal Law. — Confessions.—Corpus Delicti. — Extra-judicial confessions alone are not sufficient to prove the corpus delicti; but when coupled with corroborative evidence thereof, they may be sufficient, p. 219.</p> <p>9. Criminal Law.— Corpus Delicti.— Confessions.— Evidence.— Where the corpus delicti has been established by independent evidence, the accused’s responsibility for it may be established by a voluntary extra-judicial confession, or by a confession in open court by a plea of guilty, p. 219.</p> <p>10. Criminal Law. — Instructions.—Bill of Exceptions. — Appeal.— No questions on instructions can be raised on appeal in a criminal case, where such instructions were not brought into the record by a bill of exceptions, p. 220.</p>

<p>1. Appeal. — Briefs.—Waiver.—Alleged errors not discussed are waived, p. 223.</p> <p>2. Constitutional Law. — Laborers’ Wages. — Attorneys’ Fees.— Sections 7996, 7999 Burns 1908, Acts 1887 p. 13, §§1, 4, providing for the recovery of wages and for attorneys’ fees in the collection thereof, are constitutional, p.223.</p> <p>3. Appeal. — Briefs.—Omission of Evidence. — Supply in Reply Brief. — Appellant’s failure in its first brief to set out in words or substance the evidence in the case constitutes a waiver of any question depending upon an examination of the evidence; and a supply of such evidence by including it in the reply brief is unavailing. p. 223.</p> <p>4. Appeal. — Weighing Evidence. — The Supreme Court will not weigh conflicting evidence, p. 225.</p>

<p>Prom Superior Court of Tippecanoe County; I. E. Schoonover, Special Judge.</p> <p>Suit by Alfred C. Robinson against Cornelius M. Horner. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 3901 p. 590.</p>

<p>Prom Gibson Circuit Court; Eerdis A. Clements, Judge.</p> <p>Prosecution by The State of Indiana against Henry E. Agar. Prom a judgment of conviction, defendant appeals.</p>

From Lagrange Circuit Court; William J. Davis, Special Judge. Petition by George Spangler and others against Clyde A. Walb and others. Prom the order entered, said Walb appeals, George P. Eshelman and others being made appellees.

From Grant Superior Court; P. PL. Elliott, Judge. Action by John W. Reynolds against the Indiana Union Traction Company. From a judgment on a verdict for the plaintiff for $500, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Prosecution by The State of Indiana against Charles Bader. From a judgment of conviction, defendant appeals.</p>

<p>Prom Howard Circuit Court; L. J. Kirlcpatrich, Judge.</p> <p>Prosecution by The State of Indiana against Larry Ryan. Prom a judgment of conviction he appeals. On motion to be relieved from costs.</p> <p>(For decision on merits, see 174 Ind. 468.)</p>

<p>1. Rape.— Indictment.— Blank Dates.— An indictment for rape charging that defendant did “on the-day of July, 1908,” commit such crime, is sufficient, where the whole month of July was within the statutory period for the beginning of such prosecution, p. 283.</p> <p>2. Indictment. — Motion to Quash. — Failure of Record to Show that Indictment Was Endorsed “A True Bill.’’ — A failure of the order book to show that the indictment on which defendant was convicted was endorsed “a true bill,” cannot be questioned on a motion to quash the indictment, p. 285.</p> <p>3. Criminal Law. — Harmless Error. — Appeal.—A judgment of conviction, clearly right on the merits, will not be reversed for insubstantial or unprejudicial errors, p. 285.</p>

Prom Wabash Circuit Court; A. H. Plummer, Judge. Street assessment by the Town of North Manchester against which Levi Kohr petitions for a reassessment. Prom a judgment for such town, petitioner appeals.

From Howard Circuit Court; James F. Elliott, Judge. Action by Alice Maker, by her next friend, against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $550, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

From Delaware Circuit Court; Joseph G. Leffler, Judge. Action by George W. Brooks, as administrator of the estate of Sanford L. McKinney, deceased, against the Muncie and Portland Traction Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>From Lake Superior Court; V. 8. Reiter, Judge.</p> <p>Action by Magdalena Kaptur against the Orient Insurance Company. From a judgment on a verdict for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Contracts. — Parol.-—Commissions for Bale of Beal Estate. — A parol agreement to execute a written contract for commissions upon the sale of real estate cannot be enforced, p. 315.</p> <p>2. Contracts. — Parol.—Commissions on Bale of Beal Estate.— Quantum Meruit. — No action lies on tbe quantum meruit upon an oral contract for commissions for sale of real estate, p. 316.</p> <p>3. Contracts. — Indivisible.—Parol.-—Commissions on Bales of Personal and Beal Estate. — \ parol contract to pay a certain sum as a commission for tbe sale of certain personal property and real estate cannot be enforced as to tbe personal property, where tbe contract did not specify the amount to be paid for commissions on each class of property, p. 316.</p> <p>4. Deceit. — Fraud.—Sales of Beal Estate. — No action for fraud or deceit lies for money expended and time spent in securing a purchaser for real estate, where no written contract therefor was made. p. 316.</p>

<p>From Criminal Court of Marion County (39,575); Joseph T. Markey, Judge.</p> <p>Prosecution by The State of Indiana against Cordia Martin. From a judgment of conviction, defendant appeals.</p>

<p>1. Contracts. — Elements.—Ltm.—The general law governing the subject-matter of a contract constitutes an essential part of such contract, p. 326.</p> <p>2. Intoxicating Liquors.— Leases.— Contracts. — > Applicants.— A contract between a landlord and a brewing company leasing to such company a house for saloon purposes for one year, with the privilege of two years more, providing “that if at any time a majority of the qualified voters of the township * * * should file a general remonstrance against granting a license * * * the lease should expire at the expiration of the term of license held by the party occupying the building at the time such general remonstrance is filed,” expires where a license was granted on February 5, an ai>peal being taken within ten days, and the next term of the court at which the case might have been tried but was not being March 30, and a general remonstrance was filed on March 1, and one on July 5, and the lease required the defendant to procure a qualified person to make the application, pp. 326,327.</p> <p>3. Intoxicating Liqtjoks. — Applications.—Commencement of License Granted on Appeal. — After the expiration of the first term of court after the taking of an appeal from the granting of a license to retail liquors the applicant’s right to sell ceases; and a license granted at a subsequent time operates from the time of the granting thereof at) the trial, p. 327.</p>

From Laporte Circuit Court,- John C. Uiohter, Judge. Action by the Indiana Lumber and Manufacturing Company against the Federal Union Surety Company and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>1. Habeas Corpus. — Waiver of Writ. — The defendants’ appearance and their filing of a demurrer to plaintiff’s complaint for the custody of plaintiff’s child, constitute a waiver of the issuance of a writ of habeas corpus, p. 335.</p> <p>2. Habeas Corpus. — Custody of Child. — Action.—An action for the custody of her child, brought directly by the mother, partakes of the nature of an action in habeas corpus, and may properly be brought by the mother in her own right, p. 336.</p> <p>3. Habeas Corpus. — Verification.—Waiver.—The failure to question the sufficiency of an unverified complaint for the custody of a child, by a motion to strike from the files, o-r otherwise, waives any question as to the want of verification, p. 336.</p> <p>4. Habeas Corpus. — Custody of Children. — Complamt.—A complaint by a parent for the custody of a child showing that defendants are immoral and unfit to have the custody of children, is sufficient, p. 336.</p> <p>5. Courts. — Jurisdiction.—Habeas Corpus. — Where defendants, in a habeas corpus case, appear and contest the case on its merits, and the child in question is produced in court, even though by an order of the court, the court has jurisdiction, p. 337.</p> <p>6. Pleading. — Sustaining Demurrer to Paragraph of Answer.— Facts Provable Under Another. — No error is committed in sustaining a demurrer to a paragraph of answer, where the facts therein alleged are provable under another paragraph, p. 337.</p> <p>7. Judgment. — Time of Rendition. — Close of Term. — Under §1658 Burns 1908, Acts 1885 p. 114, providing that if, at the close oí any term of court, a trial be in progress “such court may continue its sitting beyond such time * * * and in such case, the term of said court shall not be deemed to be ended until the cause shall have been fully disposed of by the court,” a judgment rendered on a day after the close of the session of the court is lawful, where the trial was in progress on the last day of tht term and the cause was continued until the day of the hearing, p. 337.</p> <p>8. Appeal. — Right Result. — Where a right result was reached th( judgment appealed from will not be disturbed, p. 338.</p>

<p>1. Cbiminal Law. — Evidence.—Threats.-—Conspiracy.—Felonious Assault. — In tbe prosecution of a Tell City boy for a felonious assault upon a Troy boy, it was not erroneous to sustain an objection to a question propounded to defendant’s witness asking “what, if anything, did you hear about causing the Tell City boys any trouble that night?” the defendant offering to prove in answer thereto that several Troy boys agreed to stand together and drive the Tell City boys, including defendant, from the grounds, even if they had to “hurt them bad,” and that these threats were communicated to defendant before the altercation, the question being too general, and, even if competent, being rendered harmless error by the answer of the witness to an inquiry by the judge if he had heard the prosecuting witness “say anything,” the witness answering in the negative, p. 340.</p> <p>2. Criminal Law. — Evidence.—Threats.—When Competent. — Evidence of threats uncoupled with any overt act on the part of the Xirosecuting witness is incompetent, p. 342.</p> <p>3. Criminal Law. — Evidence.—Conspiracy.—Threats.—Threats of alleged conspirators are incompetent unless a pruna facie case of conspiracy is shown or will be shown, pp. 342, 343.</p> <p>4. Evidence. — Conclusions.—Offers of Proof. — An offer of proof should state the facts to which the witness will testify in answer to the question propounded, mere conclusions therein rendering harmless any error in sustaining an objection to the question, p. 343.</p> <p>5. Criminal Law. — Instructions.—Duplication.—It is not erroneous to refuse to duplicate instructions, p. 343.</p> <p>C. Criminal Law,— Instructions.— Duplication.— Self-Defense.— Where the court has instructed that defendant had the right to use such force as he might “reasonably think” necessary in repelling an attack, to the extent of taking the life of his assailant, it was not erroneous to refuse another that one attacked had the right to kill his adversary provided he used no more force than “reasonably appeared” necessary to him at the time, p. 344.</p> <p>7. Criminal Law.— Instructions.— Duplication. — Self-Defense.—■ Where the judge, in a prosecution for felonious assault, has instructed that if defendant was assaulted in such a manner that he believed himself to be in danger of great bodily harm he might repel force without retreating, that he might use such force as he reasonably thought necessary to repel the attack, that to avert great bodily harm he might take his assailant’s life, and that it was for the jury to say whether he acted in reasonable self-defense, it is not erroneous to refuse another instruction that the jury might consider the “situation and apparent surroundings” of defendant in determining whether he believed his life in danger or that he might suffer great bodily harm, p. 344.</p> <p>8. Criminal Law. — Instructions.—General.—Specific.—Where the instructions given in a criminal ease are general, it is erroneous to refuse to give correct, requested, specific ones. p. 345.</p> <p>O. Criminal Law.— Instructions.— Inapplicability.— Instructions should be refused where not applicable to the evidence, p. 345.</p> <p>10. Criminal Law. — New Trial. — Newly-Discovered Evidence.— In a prosecution for felonious assault and battery, alleged newly-discovered evidence that at the time of the assault another slipped the open knife, with which the assault was made, into defendant’s hand, is not a ground for a new trial, the manner of defendant’s obtaining the knife being immaterial to defendant. p. 346.</p> <p>11. Criminal Law. — New Trial. — Newly-Discovered Evidence.— Cumulative.- — Evidence that one of defendant’s witnesses, at another trial, will testify that the prosecuting witness conspired with others to harm defendant, is not a ground for a new trial, where on the trial he was asked concerning such matters but, upon objection, no offer of proof was made, and where others had testified to such conspiracy, p. 346.</p> <p>12. Criminal Law.- — Evidence.—Appeal.—A conviction will not be reversed for the want of evidence, where there is some evidence tending to support every material element of the offense charged, p. 347.</p> <p>13. Criminal Law. — Witnesses.—Credibility.—Jury.—The credibility of the witnesses in a criminal case is for the jury. p. 347.</p>

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Frank Shreve against the City of Fort Wayne. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Intoxicating Liquors.' — License Fees. — Statutes.—Implied Repeal. — Section five of the act of 1911 (Acts 1911 p. 244), providing that “the license fees by this act required to be paid to the county treasurer shall be paid into the tuition fund of the county” and that they “shall be the only fees required for the issuing of license to sell intoxicating liquors at retail,” does not impliedly repeal §7325 Burns 1908, Acts 1S95 p. 319, §115, providing that there shall be paid “for each retail liquor license, to be paid by the licensee, $4” and that “for tailing, approving and indexing and recording bond, $1,” such latter fees belonging to the county as compensation for the services of the auditor, and the former ones having reference only to the regular license tax. pp. 354, 355.</p> <p>2. Statutes. — Repeal.—Implication.—Repeals by implication are not favored; and where possible such construction will be adopted as will permit both acts to stand, p. 355.</p> <p>3. Intoxicating Liquors. — Statutes.—“Retail Liquor License.”— Certificate of Renewal. — The certificate of renewal, issued under section seven of the act of 1911 (Acts 1911 p. 244) is a “retail liquor license” within the meaning of §7325 Burns 1908, Acts 1895 p. 319, §115, fixing the fee for issuing such license, p. 356.</p>

<p>Prom Superior Court of Allen County; Owen N. Heaton, Judge.</p> <p>Action by Maxwell J. Grove against the Supreme Council Catholic Benevolent Legion. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Contracts. — Patent Rights. — Failure to Observe Statute. — Recovery of Consideration. — Under §9720 Burns 1908, Acts 1899 p. 112, §1, providing that “it shall be unlawful for any person to barter any patent right * * * in any county * * * without first filing with the clerk of such county copies of the letters patent,” etc., a vendor who sells such rights without complying with the requirements of such statute is guilty of a misdemeanor; and a vendee having no notice of such vendor’s failure so to comply may recover the purchase money paid. p. 376.</p> <p>2. Contracts. — Prohibited.—In Pari Delicto. — Ordinarily the law gives no assistance to violators of the law; but where a contract of sale is prohibited for the. protection of the vendee, he is not in yari delicto with the vendor, and may recover the consideration yielded in the contract, p. 377.</p>

<p>Prom Wabash Circuit Court; A. II. Plummer, Judge.</p> <p>Suit by Arthur B. Doherty against Samuel Hipes. Prom a decree for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Appeal. — Duty of Presenting Error. — Presumptions.—The presumption is that the rulings of the trial court were correct; and it is incumbent upon the appellant to present a transcript affirmatively showing the commission of error, p. 383.</p> <p>2. Criminal Law. — Motions to Quash. — Ruling.—A transcript showing merely that “defendant now moves to quash the indictment herein, which said motion is by the court overruled, to which ruling of the court defendant excepts,” does not properly present any error, no ground for such motion being given, p. 383.</p> <p>3. Criminal Law. — Motions to Quash. — Sufficiency.—A statutory motion to quash an indictment bears the same relation to the indictment that a general demurrer does to a complaint under the civil code, and it should allege generally or specifically some statutory ground therefor, p. 383.</p> <p>4. Criminal Law. — Appeal.—Briefs.—Where appellant’s brief fails to set out in words, or substance, the motion for a new trial, no question thereon can be considered, p. 384.</p>

<p>Prom Steuben Circuit Court; P. V. Hoffman, Special Judge.</p> <p>Prosecution by The State of Indiana against Robert Cameron. Prom a judgment for defendant the State appeals.</p>

<p>1. Officers. — Settlements.—Conclusiveness of. — Statutes.—A settlement made by a township trustee with the prosecuting attorney and the judge, agreeing to pay an amount found due by an expert agreed upon, in consideration of the dismissal of criminal proceedings against him, is not governed by §6086 Burns 1908, §5811 R. S. 1881, providing that settlements between boards of commissioners and county, township and school officers shall not be conclusive, p. 395.</p> <p>2. Trial. — Special Findings. — Conclusions.—Conclusions in special findings will be disregarded, p. 395.</p> <p>3. Officers. — Settlement.—Duress.—Recovery of Money Paid under. — Special Findings. — Conclusions.-—In an action for the recovery of money alleged to have been paid under duress, special findings that at the time plaintiff was indicted there was “considerable agitation and excitement in the community and the public press concerning the same and said payment was made involuntarily and for the purpose of avoiding said prosecution,” are conclusions and will not be considered, p. 396.</p> <p>4. Duress. — Imprisonment.—Essentials.—To free a transaction from the charge of duress of imprisonment it must appear that there was lawful authority for the arrest and that there was a just cause therefor and a proper purpose, p. 396.</p> <p>5. Duress. — Imprisonment.—Cause.—Evidence.—Evidence that a township trustee was indicted for embezzlement and that he failed on his final settlement to turn over $279.64 belonging to the township, shows a just cause for the prosecution, even though the court found defendant not guilty, p. 396.</p> <p>O. Contracts. — Duress.—Elements.—To avoid a contract for duress of imprisonment, defendant must show that the imprisonment was unlawful, or that he was unduly coerced while suffering a lawful imprisonment; and a proposal by defendant that he would pay whatever amount an expert agreed upon found to be due to the township if the prosecution against him would be dismissed, indicates that the prosecution' was in good faith, p. 397.</p> <p>7. Contracts. — Public Policy. — Compromising Criminal Prosecutions. — Contracts for the compromise or settlement of criminal prosecutions are void, though made with the sanction of the judge at the trial; and money paid thereunder cannot be recovered. p. 398.</p>

<p>1. Divoeoe. — Abandonment.—Oomplamt.—A complaint for divorce on the ground of abandonment, filed on March 25, 1908, alleging that defendant abandoned the plaintiff on November 9, 1906, is insufficient, p. 400.</p> <p>2. Divoeoe. — Evidence.—Appeal.—A judgment against plaintiff in a divorce case will not be disturbed on appeal, for a want of evidence, where there is some evidence in support of the judgment, p. 400.</p>

<p>From Pulaski Circuit Court; Francis J. Yurpillat, Judge.</p> <p>Suit by John E. Meeks against Martha A. Danforth. From the decree, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Wabash Circuit Court; Alvah Taylor, Special Judge.</p> <p>Prosecution by The State of Indiana against Ora Whiteneck. Prom a judgment for defendant, the State appeals.</p>

<p>From Lagrange Circuit Court; James S. Dodge, Judge.</p> <p>Action by Mary Hulwick against Harlan A. Stauffer. From a judgment for plaintiff, defendant appeals. Transferred from. Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Lake Superior Court; Lawrence Becker, Judge.</p> <p>Suit by Oluf Nielson against William D. Lewis. Prom an interlocutory order appointing a receiver, defendant appeals.</p>

<p>From Porter Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by Paul Saffel against tbe Standard Forgings Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Railroads. — Highway Grossings. — Duties.—A railroad company that constructs its track over a highway must restore such highway to its former condition of usefulness and safety and so maintain it; and if this cannot be done by a grade crossing, the company must do it by constructing its tracks over or under such highway, or by constructing the highway over or under its tracks, p. 436.</p> <p>2. Railroads. — Highway Grossings. — Mandamus.—While a railroad company is required, upon the order of the proper authority, to construct a useful and safe highway crossing, the manner of constructing said crossing is within its discretion; hut if the mode chosen fails properly to execute the duty, mandamus lies to compel such company to construct a crossing that conforms to legal requirements, p. 436.</p> <p>3. Railroads. — Highway Crossings. — Action to Enforce Malcmg of. —Parties.—Trustees.—A township trustee may maintain an action to compel a railroad company to construct and maintain a proper highway crossing, p. 437.</p> <p>4. Railroads. — Commissions.—Poxoers.—A railroad commission has only such powers as are expressly granted by statute, p. 438.</p> <p>5. Railroads. — Commissions.—Suits to Compel Companies to Establish Highway Crossings. — Under §5553 Burns 1908, subd. b, Acts 1907 p. 454, §19, providing that the railroad commission shall investigate any defective highway crossings that endanger the safety of persons on the trains and shall recommend changes, and that if such changes are not made as directed the commission “may file a hill in equity * * • to require compliance with its order,” and §5530 Burns 1908, Acts 1907 p. 454, §17, requiring the commission “to enforce” all laws regulating railroads, the railroad commission may institute a suit to compel a railroad company to construct a proper highway crossing, pp. 438,441.</p> <p>6. Railroads. — Killing Stock. — Negligence. — Statutes. — Power. — Under the police power railroad companies are required to fence their tracks, in order to lessen the danger of collision with animate objects, with the consequent peril to those using such railway; and companies failing thus to safeguard their tracks may be compelled to pay for animals killed thereon, regardless of the question of negligence, p. 440.</p> <p>7. Railroads. — Highway Ci'ossings. — Suits to Enforce Construction of. — Complaint.—A complaint by the railroad commission alleging that it had ordered defendant railroad company to construct a proper highway crossing, that defendant refused, and showing the facts making it the company’s duty to construct such crossing, is sufficient, p. 441.</p>

<p>From Laporte Superior Court; Harry B. Tuthül, Judge.</p> <p>Action by Praxida Retsek against August Harbart and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Appeal. — Briefs.—Omission of Questioned Pleadings. — Appellants’ failure to set out in their brief in words or in substance the questioned complaint, or their demurrer thereto, waives any question thereon, p. 447.</p> <p>2. Appeal. — Briefs.—Amendments.—Where appellee’s brief properly questions the sufficiency of appellants’ brief in setting out the questioned pleadings, appellants’ failure to secure permission to amend, or their failure to amend their brief is fatal to any question on such pleadings, p. 448.</p> <p>3. Appeal.' — Dismissal.—An appeal will be dismissed where no question is properly presented, p. 448.</p>

<p>1. Oeiminal Law. — Plea in Abatement. — Indictment.—Irregularities. — A plea in abatement to a prosecution by indictment alleging that the judge of a city court of this State unlawfully and without jurisdiction issued his warrant for the arrest of defendant, who was in a sister state, that defendant was a resident of such sister state, and believing the warrant to be legal, and without knowledge of his legal rights, voluntarily returned to this State, that such judge was the attorney for the prosecuting witness, that he appointed a special judge and vacated the bench, that he and the prosecuting attorney, without sufficient evidence, procured an indictment against defendant and that his custody is unlawful, is insufficient, p. 451.</p> <p>2. Extradition. — Interstate Rendition. — Claiming Benefit of Laws for. — A citizen of a sister state cannot claim the benefits of the laws of this State on the subject of interstate rendition, where he voluntarily, though without knowledge of his legal rights, returned to this State to answer a criminal charge, p.452.</p> <p>3. Judges. — Practicing Law. — Public Policy. — Whether the judge of a city court shall be permitted to practice law is a question of public policy to be determined by the legislature and not by the courts., p. 452.</p> <p>4. Bigamy. — Prior Marriages. — Divorce.—Evidence.—Question for Jury. — Evidence that defendant had been married twice before, that his first wife had procured a divorce and that his second wife had written to him ten days prior to his third marriage that she had obtained a divorce sustains a verdict of guilty, where there was evidence that he had made false statements in securing his third license and in the marriage contract, where he did not use due care in ascertaining whether his second wife had obtained a divorce and where there was evidence that no such divorce had been obtained, the use of due care in ascertaining such fact being a question for the jury. p. 453.</p> <p>5. Bigamy.— Divorce.— Burden of Proof.— Presumptions.— In a prosecution for bigamy the burden of proving that defendant was divorced from his former wife is upon defendant, there being no presumption that a divorce had been obtained, pp. 455, 460.</p> <p>6. Criminal Law. — Instructions. — Written.—Oral.—Waiver. — It constitutes reversible error for the trial judge to overrule defendant’s request, made prior to the beginning of the argument to the jury, to give written instructions; but where the jury requests further instructions, and with defendant’s consent, the instructions were read to the jury by the shorthand reporter, he waives the right of insisting upon such error, p. 455.</p> <p>7. Criminal Law. — Written Instructions. — What are. — Oral instructions taken down by the court reporter do not constitute written instructions, p. 455.</p> <p>8. Criminal Law. — Jury.—Pact and Law. — ‘Instructions.—In a criminal case, it is not erroneous to refuse an instruction that the jury is “the judge of the law and the evidence,” where the judge has instructed that the jury is “the exclusive and sole” judge of “what facts have been proved,” that it “may also determine the law” for itself, that it does not have the “right to set aside the law,” and to make its own law, and that it must “determine the law as it is enacted by the legislature * * * and interpreted by the higher courts of record.” p. 456.</p> <p>9. Criminal Law. — Instructions.—Duplication.—It is not erroneous to refuse to duplicate instructions, pp. 456,457.</p> <p>10. Criminal Law. — Presumptions of Innocence. — Instructions.— Instructions coupled with some specific question, or phase of the case, that the presumption of innocence attaches to the accused until the close of the trial, were correctly refused, where the jury had been instructed that “the defendant is presumed to be innocent until the contrary is proved,” that “where there is a reasonable doubt as to * * * his guilt * * * he must be acquitted” and that “if there is a reasonable doubt” in the minds of the jury, or any one thereof, he cannot be found guilty while such doubt remains, but must be found not guilty, p.457.</p> <p>11. Criminal Law. — Instructions Requested. — Duty.—Instructions requested should be unobjectionable in the form requested, p. 457.</p> <p>12. Criminal Law. — Instructions.—Credibility of Witnesses. — It is not proper in a criminal case to single out witnesses and give instructions as to their credibility, p. 457.</p> <p>13. Criminal Law. — Evidence. — Moral Character. — -Where the moral character of the prosecuting witness in a criminal case is attacked, she may, on rebuttal, call witnesses to sustain it. p. 458.</p> <p>14. Criminal Law. — Reinstructing the Jury. — Method.—Where the court has failed, in a criminal case, to instruct the jury on any question, the proper practice requires that an instruction be drawn covering the point and that the jury be recalled and reinstructed. p. 459.</p> <p>15. Criminal Law. — Appeal.—Right Result. — Bigamy.—Where the defendant failed to show a divorce from his previous wife and the evidence is conclusive as to his guilt, the Supreme Court will not reverse the judgment for insubstantial errors, p. 401.</p> <p>16. Criminal Law. — Instructions.—Exceptions to. — Practice.—Exceptions to instructions in a criminal case cannot be reserved by being dated and signed by the judge, or by the defendant or his attorneys, p. 461.</p>

<p>From Elkhart Superior Court; Vernon W, VanFleet, Judge.</p> <p>Action by Louisa J. Chapman against George Lambert. From a decree for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

Prom Gibson Circuit Court; O. M. Welborn, Judge. Action by Josie Lawrence, as administratrix of the estate of Solomon Lawrence, deceased, against the Princeton Coal Mining Company. Prom a judgment for plaintiff for $.1,000, defendant appeals. Transferred from the Appellate Court (see 47 Ind. App. 217) under §1392 Burns 1908, Acts 1907 p. 237, §1.

<p>From Blackford Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by Mary L. Korporal and another against Samuel Y. Ramage. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Appeal. — Briefs.—Omission of Points. — Appellant’s failure to state in its brief any proposition or points challenging the sufficiency of the questioned complaint waives any error in the ruling thereon, p. 486.</p> <p>2. Appeal. — Failure to Except to OoncUisions of Law. — Appellant’s failure in the trial court to except to any of the conclusions of law precludes the raising of any questions thereon on appeal, p. 486.</p> <p>3. Appeal. — Briefs.—Omission of Points. — Appellant’s failure in its brief to present any reason or authority in support of its paragraph of answer to which a demurrer had been sustained waives any error in such ruling, p.486.</p> <p>4. Appeal. — Briefs.—Failure to Present Questions. — Appellant’s failure in its brief to present any question raised in the assignment of errors is fatal to such assignments, p. 486.</p> <p>5. Appeal. — Failure to Present Questions. — Affirmance.—Where appellant has failed to present any question, the judgment will be affirmed, p. 486.</p>

<p>From Wabash. Circuit Court; A. II. Plummer, Judge.</p> <p>Drainage petition by William A. Jackson and others against which the Wabash Railroad Company remonstrates. From a judgment for petitioners, remonstrant appeals.</p>

<p>Prom Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Jesse Southerland. Prom a judgment of conviction, defendant appeals.</p>

From Porter Superior Court; Harry B. Tuthill, Judge. Action by George W. Roper against the New York, Chicago and St. Louis Railway Company and another. From a .judgment for plaintiff, defendant railway company appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.

<p>1. Municipal Cobpoeations. — Sewer Assessments. — Failure to Pay. —Reductions.—A provision in a notice to contractors for a proposed sewer that defendant city would not be responsible for any uncollectible assessments lagainst property_owners, has no application to deficits caused by a reappraisement of benefits and a consequent reduction in the assessments for such sewer, p. 514.</p> <p>2. Municipal Corporations.— Seioer Assessments.— Contracts.— Deficits. — Where the board of public works of a city of the first class under §S722 Burns 1908, Acts 1905 p. 219, §117, decides that the special benefits accruing to property owners will équal the cost of a proposed sewer and a contract is let for the construction of such sewer, the city 'is liable for any deficit caused by the failure of appraisers subsequently appointed on petition to the superior court, by interested landowners, as permitted by §8725 Burns 1908, Acts 1907 p. 563, to assess the benefits at such a sum as to cover the cost of such sewer, such statute providing that such “board shall have the power to order the payment of such excess out of any funds which may have been appropriated to its use by” the council, and that such council shall make the necessary appropriation, pp. 515, 516, 517, 518.</p> <p>3. Municipal Ooepoeations. — Seioer Assessments. — Reappraisement. — Final Judgment. — Under §8725 Burns 1908, Acts 1907, p. 563, providing that the report of appraisers appointed on petition of an aggrieved lot owner to the circuit court shall be “final and conclusive on all parties thereto,” no appeal can be taken, p. 518.</p> <p>4. Municipal Ooepoeations. — Seioer Contractors. — Ignorance of Law Does Not Excuse. — Contractors, as well as cities, are required to take notice that a city is not bound by a contract made in excess of its statutory powers, p. 518.</p> <p>5. Municipal Corporations. — Se wer Assessments. — Benefits to City. —Statutes.—Section 8725 Burns 1008, Acts 1907, p. 563, providing that the board of public works of a city of the first class shall determine what benefits if any, will accrue to the city on account of the construction of a proposed sewer, and that such board may not pay more than $5,000 for any one improvement, unless pursuant to a special ordinance, authorizes such board to pay such sum, at least, on any deficit accruing because of a reduction in benefits assessed on petition for a reappraisement, p. 520.</p> <p>6. Municipal Ooepoeations. — Sewer Assessments. — Deficits.—Actions to Recover. — Mandamus.—A sewer contractor may maintain an action for a breach of contract, and recover a judgment against a city, and may compel the payment of such judgment by mandamus, p. 521.</p>

<p>Prom Newton Circuit Court; C. W. Hanley, Judge.</p> <p>Suit by Charles M. Kline against Anna M. Dowling. Prom a decree for plaintiff, he appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

Prom Huntington Circuit Court; Samuel E. Cook, Judge. Suit by the Fairfield Shoe Company and others against Ebenezer C. Olds, as assignee for the benefit of creditors of Harry J. Smith. From a decree for defendant, plaintiff appeals.

<p>Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge.</p> <p>Action by Edward S. Rogers against John T. Mugg and others. Prom a judgment for plaintiff, defendant Jacob Deinhart appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>From Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Francis M. Long against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $750, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Master and Servant. — Railroads.—Employers’ Liability Act.— Servant Injured on Hand-ear. — Complaint.—A complaint alleging that the plaintiff was a servant of defendant railroad company, that defendant’s section foreman ordered him to load the shovels, picks and other tools upon the hand-car and to get upon such car and to go to another point and to make certain repairs, that plaintiff obeyed, and that such foreman negligently set the brakes so that the plaintiff was thrown from the car, to his injury, does not state a cause of action under subdivisions two and four of section one of the employers’ liability act (Acts 1893, p. 294, §8017 Burns 1908) providing that “every railroad * * * shall be liable * * * for personal injuries, * * * where such injuries resulted from the negligence of any person * * * to whose order” the injured employe “was bound to conform, and did conform, * * * or where such injury was caused by the negligence of any person, coemploye or fellow servant engaged in the same common service * * * acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct.” Morris, ,T., dissents, pp. 546,548, 552, 561.</p> <p>2. Master and Servant. — Employers’ Liability Act. — Common Law. — The second clause of subdivision four of section one of the employers’ liability act (Acts 1893 p. 294, §8017 Burns 1908, providing that railroad companies shall be liable for injuries caused by the negligence “of any person, coemploye or fellow servant engaged in the same common service * * * acting in the place and performing the duty of the corporation in that behalf,” the person injured being engaged in obedience to an order from a superior with authority, raises a liability to one injured while conforming to a special order from a superior, though not to a general order under which the servant has discretion, p. 547.</p> <p>3. Master and Servant. — Vice-Principals.—Who Are. — One delegated by the master to perform a masterial duty is a vice-principal ; and the master is liable for his acts. p. 550.</p> <p>4. Master and Servant. — Employers’ Liability Act. — negligent Order. — Liability.—A railroad company is liable to an employe negligently injured while in the performance of a special order given by another servant of the company to whose order the injured servant was bound to conform, p. 551.</p> <p>5. Constitutional Law. — Special Privileges. — Employers’ Liability Act. — Corporations.—An employers’ liability act making corporations liable for acts for which individuals or partnerships are not liable is unconstitutional, constituting class legislation, p. 554.</p> <p>6. Constitutional Law. — Employers’ Liability Act. — Class Legislation. — Railroads.—Hazardous Employment. — Section one of the employers’ liability act of 1893 (Acts 1893 p. 294, §8017 Burns 190S) making “every railroad or other corporation” liable for the negligence of employes in certain cases, is unconstitutional except as to railroad employes injured in the actual operation of their trains. Louisville, etc., R. Co. v. Melton, 218 U. S. 36, partly disapproved, p. 555.</p> <p>7. Appeal. — Affirmance.—Searching Record. — The court will search the record to affirm a case, but it will not do so for the purpose of reversing it. p. 557.</p> <p>8. Appeal. — Transfers.—Constitutional Questions.- — Jurisdiction of cases presenting constitutional questions already settled is in the Appellate Court, where, except for such question, the jurisdiction would be in such court, p. 560.</p>

<p>1. Appeal. — Sustaining Demurrer to Paragraph of Answer. — Pacts Provable under Another. — Sustaining a demurrer to a paragraph of answer constitutes harmless error, where the facts alleged therein are provable under another paragraph, p. 562.</p> <p>2. Sales. — Inadequacy of Price. •— Title. — Possession. — Notice.— The purchase of an automobile worth $350 for $23 is sufficient to charge the purchaser with notice of some defect in title, p. 564.</p> <p>3. Sales.— Title.— Defects. — Notice.—Mechanics’ Liens. — Loans.— The application of a dealer in possession of an automobile worth $350 for a loan tliereon for $23 with which to make repairs thereon is sufficient to cause suspicion and to lead to inquiry; and the taking of an affidavit of ownership, on making such loan, tends to confirm the suspicion, p. 564.</p> <p>4. Sales. — Agency.—Possession.—Bare possession of goods does not constitute proof of an agency to sell them. p. 564.</p>

<p>Prom Jackson Circuit Court; Joseph H. Shea, Judge.</p> <p>Prosecution by Tbe State of Indiana against Garfield Bohall. Prom a judgment of conviction, defendant appeals.</p>

<p>From Tippecanoe Circuit Court; Richard P. DeHart, Judge.</p> <p>Action by Leta Mason against Dorr Loman. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Louis Friedman against Myron C. Thomas. From a judgment for plaintiff, defendant appeals. Transferrecl from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Charles England against Michael Duffy and others. .From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Master and Servant. — Safe Place. — Common Laio Duty. — At the common law the master was required to exercise ordinary care to provide for his servants a safe place in which to work, p. 588.</p> <p>2. Master and Servant. — Relations of — Legislative Control over. — The State has an interest in the welfare of its citizens, and may impose reasonable restrictions on their employment, p. 589.</p> <p>3. Master and Servant. — Factory Act. — Violation.—Negligence.— Assumption of Rislc. — The violation of section nine of the factory act (Acts 1899 p. 231, §8029 Burns 1908), requiring employers to guard certain machinery and appliances, constitutes negligence per se; and an employe does not assume the risk of the master’s violation of such act. pp. 589, 591.</p> <p>4. Statutes. — Strict Construction. — Factory Act. — Master and Servant. — Section nine of the factory act (Acts 1899 p. 231, §8029 Burns 1908), being penal and in derogation of the common law, should be construed strictly, but not in such a way as to thwart its beneficent purpose, p. 590.</p> <p>5. Master and Servant. — Factory Act. — Contributory Negligence. —A servant to be entitled to recover is required to exercise ordinary care, though the master has violated section nine of the factory act (Acts 1899 p. 231, §8029 Burns 1908). p. 590.</p> <p>O. Master and Servant. — Unguarded Shaft. — Contributory Negligence. — Proximate Cause. — Jury.—Where a servant was operating a sewing machine upon a table under which was an unguarded power shaft, furnishing the power to operate the machines on such table, and her bobbin and shuttle fell upon the floor, her act in stooping and looking under the table to find such articles, causing her hair to be caught by such shaft, does not render her guilty of contributory negligence as a matter of law, but is a question for the jury, especially where a rule required her to pay for such articles unless she recovered them, and in such case the unguarded shaft will be considered the sole proximate cause of the servant’s injury unless her own negligence contributed thereto, pp. 591, 595.</p> <p>7. Master and Servant. — Nonsuit.—Evidence.—Hoto Considered.— On a motion to direct a verdict for defendant in a personal injury case, only the evidence favorable to the plaintiff will be considered, p. 594.</p> <p>8. Negligence. — Contributory.—Burden of Proof. — The burden of proving contributory negligence is on defendant, but it may be shown by plaintiff’s evidence, p. 594.</p> <p>9. Master and Servant. — Contributory Negligence. — Rules.— Factory Act. — Evidence.—In an action by a servant for injuries sustained by the catching of her hair in an unguarded shaft, evidence that such servant was instructed by her employer that if she lost anything from the machine she was employed to operate she would have to pay therefor, and that on certain occasions she had been so compelled to pay, is admissible on the question of her contributory negligence in trying to obtain an article • which had fallen from such machine under such shaft, p. 597.</p>

<p>From Randolph Circuit Court; James S. Engle, Judge.</p> <p>Action by Martin Murphy against the City of Union City. Prom a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>From Washington Circuit Court; Thomas B. Buskirk, Judge.</p> <p>Suit by Caar, Scott & Co. against George W. -Stremmel. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Elkhart Circuit Court; James S. Drake, Judge.</p> <p>Prosecution by The State of Indiana against Lewis Hawks. Prom a judgment of conviction, defendant appeals.</p>

<p>Prom Shelby Circuit Court; W. M. Sparks, Judge.</p> <p>Action by William A. Bennett and another against the Root Furniture Company. From a judgment for defendant, plaintiffs appeal. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Pleading. — Trial. — Procedure. — Simplification. — Code. — The purpose of our code was to simplify the procedure; and to that end the distinction between the pleading and practice in law and in equity was abolished, p. 613.</p> <p>2. Mortgages. — Foreclosure. — Receivers. — Sales. — Subsequent Chattel Mortgages. — Intervening Petitions. — Parties.—In a suit for the foreclosure of a mortgage on real estate, including “all machinery * * * that may hereafter be placed upon said premises,” a receiver having been appointed and a sale having-been made under foreclosure and a deed having been made in pursuance thereof to the mortgagees, a subsequent vendor of certain machinery located on such land may, by an intervening petition, litigate its right to remove such machinery, since the law favors the litigation of all claims in one proceeding where the rights of the parties can be conserved, pp. 613, 614.</p> <p>3. Pleading. — Law.—Equity.—The abolition of the distinctions between the pleading and practice in proceedings at law and in equity did not affect the substantive rights of parties, but merely permitted causes and defenses of whatever nature to be litigated in one case. p. 613.</p> <p>4. Mortgages. — Real.—Priority.—Fraud.—A real estate mortgage on a tract of land including “all machinery, apparatus and appliances of whatever description that may hereafter be placed upon said premises” is superior to a subsequent contract of conditional sale on a stationary engine, placed on such premises as a part of a power plant thereon, an agent of the vendor having falsely assured such real estate mortgagee at the execution of such real estate mortgage that such engine had been paid for. pp. 615, 619.</p> <p>5. Mortgages. — Real.—Sales.—Removal of Chattels. — Indemnity Bonds. — Finding.—In a suit by a vendor of chattels against the mortgagee of real estate, a finding for the plaintiff, but requiring it to give an indemnity bond to cover the cost of damage done by the removal thereof, indicates that damage will accrue to the real estate by the renewal of such chattels, pp. 617, 620.</p> <p>6. Mortgages. — Intervening Petition Asserting Legal Rights.— Equitable Recovery. — A vendor of chattels who’ asserts a legal right thereto, under a contract wherein it retains title until the goods are paid for, and which goods are apparently covered by a mortgage on the real estate, must recover on the strength of such legal claim and not by virtue of an equitable claim, pp. 618, 620.</p> <p>7. Equity. — Innocent Persons.- — Loss by. — Where one of two equally innocent persons must suffer a loss, he who puts it in the power of one, or confers the apparent authority upon one, to injure another, must bear the loss. p. 619.</p> <p>8. Principal and Agent. — Secret Instructions. — A principal is bound by the acts and declarations of his agent within the scope of his general employment, regardless of secret instructions to the contrary, p. 620.</p> <p>9. Estoppel. — Agents' Declarations. — A principal is estopped by the acts and declarations of his agent within the general scope o£ his employment, p. 620.</p> <p>10. Mortgages. — Priority.—Wotice.—A mortgage of real estate duly recorded for three months prior to the execution of a contract of conditional sale of goods apparently covered by the mortgage, constitutes constructive notice of the rights of such mortgagee. p. 621.</p>

<p>1. Railroads. — Stopping Freight-trains on Grossings. — Complaint. —A complaint alleging that defendant railroad company stopped its freight-train on a street crossing, .thereby obstructing such street for ten minutes, shows the commission of a misdemeanor, p. 624.</p> <p>2. Negligence. — Violation of Statutory Duty. — The violation of a statutory duty constitutes negligence per se; and where such violation is the proximate cause of an injury, in the absence of contributory negligence on the part of the xilaintiff, the violator is liable, p. 624.</p> <p>3. Railroads — Obstructing Street Crossing. — Fires.—Obstructing Access to. — Contributory Negligence. — Negativing.—Oomplaini.— A complaint alleging that plaintiffs building caught on fire, that the fire company started with the necessary equipment to extinguish such fire, that defendant railroad company’s freight-train obstructed for ten minutes the street over which the equipment was brought, that the engineer refused to move off the crossing, that by reason thereof the plaintiffs building was burned and “that all of said damages and the destruction of said greenhouse and conients were the direct and proximate result of the carelessness and negligence of said defendant as herein averred,” sufficiently shows negligence as the proximate canse of ifiaintiff’s loss, but is fatally defective for want of an allegation of freedom from contributory negligence, the quoted allegation being insufficient for that purpose, p. 625.</p> <p>4. Railboads. — Damages to Property. — Contributory Negligence.— Instructions. — Where an action against a railroad company for obstructing a street, thereby preventing a fire company from extinguishing the fire in plaintiff’s building, to his damage, was submitted to the jury on the theory that it was unnecessary for the complaint to negative contributory negligence, an instruction that if the jury finds “from a preponderance of all the evidence in the case that plaintiff was guilty of any act of negligence that proximately” contributed to his damage, he cannot recover, is erroneous, p. 6S0.</p>

<p>1. Divobce. — Statute.-—-Affidavit of Residence. — Complaint.—Dismissal. — Section 1066 Burns 1908, §1031 B. S. 1881, providing that the plaintiff in a divorce suit shall, with his petition, “file with the clerk of the court an affidavit” giving his place or places of residence within the past two years, is mandatory; and the failure to file such affidavit with the complaint renders the subsequent decree granting a divorce reversible, and requires a dismissal of the cause, p. 632.</p> <p>2. Judgment. — Correction.—Rune pro time Entries. — Evidence.—A judgment in a cause not in fieri can be corrected only upon evidence of some memorial, memorandum, or other minute in writing, and not by oral testimony in the form of affidavits or otherwise, p. 634.</p> <p>3. Pleading. — Lost. — Reinstating. — Complaint. — Under §1291 Burns 1908, §1233 B. S. 1881, authorizing the reinstatement of any paper in any judicial proceeding by the filing of a complaint showing “the loss or destruction of such paper, and that a certified copy thereof cannot be obtained by the party or person making such application,” a complaint failing to show that a certified copy of such paper cannot be obtained is insufficient p. 635.</p>

<p>Prom Porter Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Sylvester W. Chester against the City of Valparaiso. From a judgment for his administratrix, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Guardian and Ward. — Investment of Funds. — Trust Companies. —Statutes.—Section 4953, subd. 6, Burns 1908, Acts 1893 p. 344, §10, providing that “the directors of any such corporation [trust company] shall have discretionary power to invest all moneys received by it * * * in trust in any such personal securities as are not hereinafter expressly prohibited” and shall be responsible for the value and genuineness thereof at the time the investment is made, except that such company shall not be responsible for any investment specifically ordered by any court, or by will, or other instrument, does not give trust companies discretionary, irresponsible power to invest a ward’s money in securities, but merely gives to them the same dicretionary, responsible power that is accorded to individuals acting in the same capacity, pp. 647, 650, 651, 652.</p> <p>2. Guardian and Ward. — Investments.—It is not necessary, in the absence of a statutory provision to that effect, for a guardian to obtain an order of the court before investing his ward’s funds; but investments without such an order are made at his risk. p. 648.</p> <p>3. Guardian and Ward. — Investments.—A guardian is required to use the prudence, discretion and intelligence exercised by ordinarily prudent men in regard to the permanent, hut not speculative, use of their funds, p. 649.</p> <p>4. Guardian and Ward. — Investments.—Court Orders. — A guardian is not liable for investments of his ward’s money, where such investments were ordered by the court, p. 650.</p> <p>5. Statutes.— Words.— Legal Meaning.— Presumptions. — Words used in a statute are presumed to be used in their legal sense, p. 651.</p> <p>6. Statutes. — Construction.-—Validity.—Where possible, statutes will be so construed as to sustain their constitutional validity. p. 652.</p> <p>7. Guardian and Ward. — Investments.—-Stocks.—A guardian investing practically the whole of his ward’s estate in fluctuating stocks and bonds cannot justify himself on the ground that an ordinarily prudent person would do likewise with his own es-state. p. 653.</p> <p>8. Guardian and Ward. — Investments.—Current Reports. — The ea> parte approval of a guardian’s current reports constitutes prima facie proof of their correctness; but, at any time before final settlement, they may be set aside, corrected, or modified if justice demands it. p. 654.</p>

<p>From Fayette Circuit Court; George L. Gray, Judge.</p> <p>Action by Anna Schroyer against the Commercial Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>1. Descent and Distribution. — Widow.—Subsequent Marriage.— Deeds. — Validity.—Sales on Execution. — Under section eighteen of the act “regulating descents” (1 R. S. 1852 p. 248), providing that the widow of a husband dying intestate, who shall marry a second or subsequent time, may not alienate the real property descending from such decedent during such marriage, a deed, or mortgage, of such real estate during such second marriage is void, and a sale thereof on an execution against such widow conveys no title; and if she should convey such land in violation of such statute she may recover possession thereof and quiet her title thereto, p. 663.</p> <p>2. Descent and Distribution.— Remarrying Widow.— Deeds.— Under §3015 Burns 190S, §2848 R. S. 1881, providing, among other things, that a remarrying widow may not, while children of her former marriage, or their descendants, are living, convey real estate descending to her from such marriage, a deed made by a widow having living children by virtue of the marriage from which the real estate to be conveyed descended to her is void, p. 664.</p> <p>3. Estoppel.— Deeds.— Warranty.— Remarrying Widows. — A remarrying widow is not estopped by the covenants contained in a warranty deed executed by her in violation of §3015 Burns 1908, §2848 R. S. 1881, providing that a remarrying widow may not, during such marriage, convey real estate descending to her by virtue of a former marriage, while children of such marriage, or their descendants, are alive, p. 667.</p> <p>4. Deeds. — Procuring Execution of, by Fraud. — False Representor tions. — Where defendant’s agent procured the plaintiff to execute a quitclaim deed to real estate by falsely representing to her that such deed was merely a release of her claim for damages against defendant, such deed is invalid as between such parties, though the plaintiff was able to read such deed, but did not. p. 669.</p> <p>5. Contracts. — Fraud.—Where one person designedly misrepresents the facts and thereby causes another, relying thereon, to execute an injurious contract, it will be set aside for such fraud, p. 672.</p>

<p>From Criminal Court of Marion County (39,771); Joseph T. Markey, Judge.</p> <p>Prosecution by The State of Indiana against Moses Lipskitz. From a judgment of conviction, defendant appeals.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Suit by Israel M. Gascho against Henry L. Lennert. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Prom Henry Circuit Court; Ed Jackson, Judge.</p> <p>Action by William W. Wainwright against the P. H. & P. M. Roots Company. Prom a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.</p>

<p>Municipal Corporations. — Street Improvements. — Reassessments. —Repeal of Statute. — Where a frontager petitioned, under §8716 Burns 1908, Acts 1905 p. 219, §111, for a reassessment of benefits to his lot, and before the appraisers appointed made their report, such section was repealed, without a saving clause, by section four of the act of 1909 (Acts 1909 p. 412), objections to the appointment of such appraisers are unavailing, since the right to such an appraisement was extinguished by such repeal.</p>

From Gibson Circuit Court; O. M. Welborn, Judge. Action by Kate B. Daniels, as administratrix, de bonis non, with the will annexed of the estate of William B. Daniels, deceased, against Abbie D. Bruce and others. From an interlocutory order for plaintiff, she appeals.

<p>From Steuben Circuit Court; P. V. Hoffman, Special Judge.</p> <p>Prosecution by The State of Indiana against Edward Cobe. Prom a judgment for defendant, the State appeals.</p>