Volume 177 — Indiana Reports

<p>Prom St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Hirth-Krause Company and another against Philip Cohen and others. Prom a judgment for defendants, plaintiffs appeal.</p>

<p>1. Witnesses.—Competency.—Child Under Ten Tears of Age.— Discretion of Court.—Under §520, subd. 2, Burns 1908, §497 R. S. 1881, which provides that children under ten years of age are incompetent to testify ‘‘unless it appears that they understand the nature of an oath,” it is for the trial court to determine whether a child under ten years of age is competent to testify, and where the trial court, after an examination, determines that such child is competent it would require a case of manifest abuse of discretion to authorize any interference on appeal, p. 15.</p> <p>2. Witnesses.—Competency.—Credibility.—Question for Jury.— Where the court permits a child under the age of ten years to testify it only determines that the witness is competent, and the credibility of the witness and the weight to be given the testimony are for the jury to determine, p. 16.</p> <p>8. Criminal Law.—Evidence.—Similar Offenses.—Harmless Error. —In a prosecution on a charge of assault and battery with intent to rape, where defendant is acquitted of the intent charged, objections to the admission of evidence of similar offenses by the defendant to prove the intent charged will not be considered on appeal, p. 16.</p> <p>4. Witnesses. — Impeachment.—Statements at Former Trial.— Admissibility to Sustain Witness.—Where a witness is contradicted by\^vidence of statements made by him at a former trial, and the contradiction is for the purpose of impeachment, the party by whom the witness was called may prove only so much of the testimony of such witness at the former trial as explains, modifies or is necessary to enable the court or jury trying the cause to understand the impeaching statements, p. 17.</p>

<p>1. Municipal Coepoeations.—Expenditure of Funds Raised by Taxation.—Illegal Contract.—Rights of Taxpayer to Enjom.—A resident taxpayer of a municipal corporation may sue to enjoin an illegal act, involving the expenditure of funds raised by taxation, even when it appears on the face of the complaint that plaintiff’s interest does not differ in kind from that of the public in general, p. 22.</p> <p>2. Municipal Coepoeations.—Expenditure of Funds Raised by Taxation.—Illegal Contract.—Suit by Taxpayer.—Demand.—In a suit by a taxpayer to enjoin the payment of money by a school corporation on an illegal contract, a demand on such corporation for relief is not a condition precedent to plaintiff’s right to bring the suit. p. 23.</p> <p>8. Appeal.—Pleading.—Defective Complaint.—Amendment Deemed Made.—In a suit by a taxpayer to enjoin the payment of money, by a school corporation on a contract for the installation of a heating plant, because of the interest of one of the members of the school board in such contract, where the complaint alleges the election of said member to the school board on June 6, 1910, and that he qualified as such on August 1, 1910, and that the contract was entered into June 25, 1910, and also alleges that said trustee “is the president” of the company to whom the contract was awarded, but does not specifically allege that he was president of the company when the contract was executed, and where it was proved at the trial without objection that he was president of such company when the contract was executed and that he executed the contract for the company, and the contract admitted in evidence, without objection, contains provisions for examination of the plant by the school board after the time when said trustee should have qualified as a member thereof, it will be deemed on appeal that the complaint was amended to show that said trustee was president of such company when the contract was executed, p. 23.</p> <p>4. Conteacts.—Public Contracts.—Officers Interested.—Validity. —A contract executed in contravention of the provisions of §2423 Burns 1908, Acts 1905 p. 584, §517, is absolutely void. p. 26.</p> <p>5. Schools and School Districts.—Contract.—Officer Interested. —Becoming Interested Before Qualifying for Office.—Where the president of a heating and plumbing company was elected a member of the board of trustees of a school corporation, and> after his election, but before he qualified as trustee, a contract for installing a heating plant was entered into between said school corporation and the company of which said trustee was president by the provisions of which it was contemplated that a portion of the work might be performed after he should take possession of the office and it was provided that in such event an expert designated by the company was to act with the disinterested member of said board of trustees in determining whether said company had complied with all the stipulations of the contract, and the events contemplated thereafter occurred, said trustee had such an interest in the contract as §2423 Bums 190S, Acts 1905 p. 584, §517, was designed to prohibit, and the contract is void. p. 27.</p> <p>6. Contracts.—Public Contracts.—Officer Interested.—Public Policy.—In the absence of a statute forbidding an officer to be interested in a contract made by him for the public, his interest in such contract would render it void on the ground of public policy, p. 28.</p> <p>7. Contracts.—Public Policy.—Validity.—Contracts injurious to the public, or against the public good, or which have a tendency to injure the public, are against public policy and are void even though no injury result therefrom, p. 28.</p> <p>8. Equity.—Rules.—An equitable right cannot be founded on a violation of law. p. 31.</p> <p>9. Municipal Corporations.—Illegal Contract.—Suit to Enjoin Payment.—Right of Taxpayer.—Whether a taxpayer’s taxes are large or small cannot affect his rights as a suitor in such capacity to enjoin the expenditure of the public money in pursuance to an illegal contract, p. 31.</p> <p>10. Contracts.—Void Contracts.—Rights Acquired.—No rights are acquired under a void contract, p. 31.</p> <p>11. Action,—Suit to Enjoin Expenditure of Public Funds.—Motive of Plaintiff.—Where the plaintiff, as a taxpayer, has the right to invoke the equity powers of a court to enjoin the expenditure of public funds under the terms of a void contract, his right will not be forfeited because of his ill feeling towards one of the parties interested in the contract, p. 32.</p>

<p>1. Carriers.—Express Shipment.—Limitation of Liability.—Parties may agree on the value of property to be shipped, and limit the liability of the carrier to the agreed valuation, where the contract is fairly made on a good consideration, p. 37.</p> <p>2. Carriers.—Connecting Carrier.—Express Shipment.—Delivery to Carrier.—Limiting Liability.—Authority of Agent.—As a general rule, authority by the shipper to an agent to deliver an article at the shipping station of the carrier for shipment, carries with it the authority to fix a valuation, and to enter into a contract with the carrier which limits the liability of the latter to the value fixed, and a connecting carrier may avail itself of the limitation, p. 37.</p> <p>3. Carriers.—Express Shipment.—Limitation of Liability.—The common-law liability of a carrier cannot be limited except by contract with the shipper, express or implied, and where the shipper gave no authority to the receiving carrier to place a valuation on the shipment, and did not ratify the act of the receiving carrier in placing a value thereon, and the evidence discloses no course of dealing from which such authority might be presumed, an agreement between such carrier and a connecting carrier fixing a valuation on the shipment will not limit the liability of such connecting carrier to the shipper for loss of or injury to the shipment on its line. p. 37.</p>

From Clark Circuit Court; Harry G. Montgomery, Judge. Action by Grace M. Walker against the Louisville and Southern Indiana Traction Company. From a judgment for the plaintiff, defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Negligence.—Complaint—Averments.—In an action to recover for injuries suffered through defendant’s negligence, the complaint must show, a legal duty owing from defendant to plaintiff, a breach of the duty, and an injury to plaintiff as a result of such breach, p. 51.</p> <p>2. Negligence.—Complaint.—Averment as to Duty.—The duty owing from defendant to plaintiff, in an action on account of injuries suffered through defendant’s negligence, must be shown by the allegation of facts from which the law will imply a duty, and not by direct averment, p. 51.</p> <p>3. Negligence. —■ Complaint. — Allegation of Negligence. — Sufficiency.—Where the facts alleged in a complaint for injuries caused by being struck by defendant’s automobile, showed that defendant owed to plaintiff a duty to use ordinary care not to run against him, the allegation that defendant “carelessly, negligently and wilfully” ran against plaintiff is a sufficient charge of negligence, p. 52.</p> <p>4. Negligence.—Injury to Pedestrian.—Oa/reless Driving.—Complaint.—Sufficiency.—A complaint for injuries sustained by being struck by an automobile, alleging that after the automobile driven by defendant had followed plaintiff about sixty-five feet, gaining upon him constantly, the defendant negligently ran against plaintiff, sufficiently shows that defendant’s automobile struck plaintiff and sufficiently connects the injury with a definite time and place, p. 52.</p> <p>5. Trial.—•Instruction.—negligence.—An instruction that if there is no evidence on the question of contributory negligence by the plaintiff, or if the evidence thereon is equally balanced, the jury should find plaintiff free from contributory negligence, and if there is no evidence on the question of defendant’s negligence, or if the evidence thereon is equally balanced, or preponderates in favor of defendant, it should find the defendant not guilty of negligence, is not misleading and does not invade the province of the jury. p. 53.</p> <p>6. Appeal.—Harmless Error.—Verdal Inaccuracy.—The use of the word “contributory” before the word “negligence” in reference to the negligence of defendant in an instruction, submitting the questions of contributory negligence and negligence, is a mere verbal inaccuracy and furnishes no ground for reversal, p. 54.</p> <p>7. Tbial.—Instructions.—Construed Together.—Assuming Facts. —An instruction in an action on account of injuries caused by negligence which told the jury that “before the plaintiff can be defeated in this cause of action on account of contributory negligence it must be proved by a fair preponderance of the evidence,” is not objectionable as assuming that plaintiff had established a prima facie case, or as invading the province of the jury, when read and considered with reference to other instructions that plaintiff must prove all the material allegations of the complaint, including negligence of the defendant, and that he could not recover if his own want of ordinary care proximately contributed to the injury, p. 54.</p> <p>8. Appeal. — Instructions. — Harmless Error. — Instructions concerning the rights of persons to use all parts of a public street for the purpose of travel, even though not correct as applied to persons on foot generally, are not erroneous in an action by a pedestrian, for injuries sustained in being struck by an automobile, where defendant concedes that plaintiff was in the proper use of the street at the time of the injury, p. 55.</p> <p>9. Appeal.—Brief.—Statement of Points.—No question is presented by the “statement of points” in a brief which states that the court erred with reference to certain instructions therein set out without assigning any reason or citing any authority showing the court to be in error, p. 55.</p> <p>10. Appeal.—Briefs.—Points.—Waiver.—Alleged error not properly presented in the statement of points in a brief on appeal is waived, p. 55.</p> <p>11. Appeal.—Weight of Evidence.—Rule.—Where there is evidence to sustain the verdict a cause will not be reversed on the weight of the evidence, p. 55.</p>

From Superior Court of Allen County; Owen N. Heaton, Judge. Suit by David Knepper and wife against Mary E. Eggiman and others. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Railroads.—Injury to Person on Tracies. — Pleading.'—'Complaint.—Allegations as to Employe’s Duty.—In an action by the car inspector of one railroad company against another railroad company for personal injuries occasioned by the defendant pushing a car against another car while the plaintiff was thereunder inspecting the same, allegations of the complaint, that it was the duty of plaintiff to inspect all ears set on the transfer track to be received and shipped by plaintiff’s employer, and to make such inspection of all cars so set by the defendant the same day they were placed on said transfer track, and that in the proper discharge of his duties as such inspector he was required to and did go under cars for the purpose of inspection, are sufficient to show that plaintiff was in the discharge of the duties of his employment. p. 67.</p> <p>2. Negligence.—Pleading.—Complaint.—Allegation of Proximate Cause.—The allegation of the specific negligence which caused the injury complained of is a sufficient allegation of the proximate cause, p. 67.</p> <p>3. Railroads.—Injury to Person on Trade.—Proximate Cause.— Where plaintiff, car inspector for a railroad company, on inquiry was told by the conductor of the defendant, another railroad company, that no more cars would be placed on a transfer track, and he thereupon began the inspection of cars on said track and while so inspecting defendant switched a car having a defective brake onto said track whereby plaintiff was injured, the failure of the brake to work was not the proximate cause of the injury, pp. 68,70.</p> <p>4. Railroads.—Injury to Person on Trades. — Pleading. — Complaint.—Allegation of notice.—Allegations in a complaint against a railroad company for injuries received while inspecting cars, that defendant had knowledge and well knew that plaintiff was under the cars inspecting them, and that at the time it pushed the ear on and upon the transfer track had notice and knowledge of defects in the brake and that the motion of the car could not be controlled, include constructive or imputed, as well as actual, notice, p. 69. *</p> <p>5. Railroads.—Switching Cars.—negligence.—Question for Jury. —Where plaintiff, a ear inspector, on being informed by defendant’s conductor that no more cars would be placed on a transfer track, began the inspection of cars on said track and while under a car inspecting same defendant switched a car having a defective brake onto said track, whereby the plaintiff was injured, it is for the jury to determine whether from all the circumstances the defendant’s act was negligent, pp. 70, 72.</p> <p>6. Negligence.—Proximate Cause of Injury.—A proximate cause is the efficient cause, or the cause which sets another cause in motion, or without which the injury could not have occurred, p. 70.</p> <p>7. Appeal.—Reversal.—new Trial.—In an action by the car inspector of a railroad company against another railroad company for injuries caused by defendant in switching a car onto a transfer track and against cars being inspected by plaintiff, where from the allegations of the complaint and the evidence in support thereof defendant was bound to know that cars on said track would be inspected by plaintiff, answers by the jury to interrogatories that defendant did not know of plaintiff’s presence under said ears may have been on the question of actual notice and do not entitle the defendant to a judgment, where the jury was not instructed as to constructive notice, but the cause will be reversed and a new trial ordered, pp. 71,73.</p> <p>8. Appeal.—Erroneous Instruction.—Invited Error.—Where defendant requested an instruction substantially as given by the court, the error, if any, in the giving of such instruction is invited and unavailable, p. 75.</p> <p>9. Railroads.—Injury to Person on Trades.—Instruction.—In an action by a ear inspector of a railroad company against another railroad company for injuries caused by defendant switching a car onto a transfer track where plaintiff was engaged in the inspection of cars, an instruction that before plaintiff could recover he must prove his employment to do the work that he was engaged in by the company for whom he claimed to work, or by some one with authority from such company to so employ him, by a fair preponderance of the evidence, was not harmful to the defendant, p. 75.</p> <p>10. Trial.—Instructions.—Cured by Other Instructions.—in an action by a car inspector of a railroad company against another railroad company for injuries caused by the defendant in switching a car onto a transfer track and against a car being inspected by the plaintiff, an instruction that if the conductor in charge of defendant’s switching crew knew that it was the custom of plaintiff’s employer to inspect ears set on said track and that in making such inspection it was necessary to go under the cars, and knew that plaintiff was ready to inspect the cars on said track, and that plaintiff asked if there were any more cars to be set, and was answered in the negative by the conductor, that the plaintiff had a right to rely on the statement of the conductor when he began the work of inspection, while it omits any question of knowledge of danger which might have been acquired from any other source, is not cause for reversal where the other instructions given fully covered the questions of the requirement of the use of the senses, ordinary care, and freedom from contributing negligence, p. 75.</p>

<p>3. Master and Servant.—Injury to Servant.—Unguarded Saw.— Proximate Cause.—In an action by a servant against the master for injuries incurred by reason of a stick which he was using in dressing a belt coming in contact with the belt and knocking his hand at and against an unguarded saw, the proximate cause of the injury was defendant’s failure to guard the saw. p. 81.</p> <p>2. Negligence.—Pleading.—Complaint.—Contributory Negligence. —General and Specific Allegations.—The general allegation in a ’complaint for personal injuries that the plaintiff was free from contributory negligence is overcome by specific allegations therein that show that he was not thus free. p. 82.</p> <p>3. Master and Servant.—Injury to Servmt.—Complaint.—Inference as to Contributory Negligence.—A complaint by a servant against the master for personal injuries alleging that it was plaintiff’s duty to dress a belt while it was revolving around a pulley by placing oil thereon with a stick, and that while so dressing the belt the stick which plaintiff was using in dressing said belt came in contact with the belt and knocked his hand in which he held the stick at and against an unguarded saw, does not permit the inference that plaintiff needlessly permitted the stick to come in contact with the belt. p. 82.</p> <p>4. Master and Servant.—Injury to Servant.—Contributory Negligence.—Burden of Proof.—Sufficiency of Evidence.—In an action by a servant against the master, where the evidence showed that it was the duty of plaintiff to dress a belt which passed from a pulley attached to a counter-shaft, between two “idlers” spaced just far enough to permit the belt to pass between them, to a four-inch pulley attached to the saw mandrel and near to the saw operated by plaintiff, that it was necessary to dress the belt while the saw was running, that the saw was unguarded except for the partial protection afforded by a sheet iron hood designed to protect the operator from flying sawdust, that the dressing was a liquid about the consistency of molasses and was required to he applied to the side of the belt touching the pulleys, and the only means employed in applying the dressing was a small stick coated with the dressing, that at the time of the injury plaintiff was applying the dressing by letting it drip from the stick on to the lower strand of the belt about midway between the saw and the lower idler where the strands of the belt ran horizontally four inches apart and while doing so his hand was hurled ¿gainst the saw and injured, but there was conflict between the evidence of plaintiff’s witnesses and that of defendant’s witnesses and also among the defendant’s witnesses as to the proper place to stand when applying the dressing and the manner in which it should be applied, and as to the practicability of guarding the saw, the jury was warranted in finding that plaintiff was free from contributory negligence, since the burden of proving contributory negligence was on the defendant. p. 85.</p> <p>5. Appeal. — Special Findings. — Oonclusiveness.—Where on the trial of a cause there was competent evidence to support the special findings of the jury, such findings will not be disturbed on appeal, p. 86.</p> <p>6. Master and Servant.—Injury to Servant.—Choice of Ways.— Contributory negligence.—If two ways of doing a thing, one safe and the other dangerous, are open to a person, and he voluntarily selects the latter, he cannot claim immunity from the consequences of contributory negligence, p. 86.</p> <p>7. Trial.—General Verdict.—Judgment on Special Findings.—In an action by a servant for injuries sustained by his hand being thrown against a saw while he was dressing a belt, answers to interrogatories showing that when the saw was shifted to east it was under a hood and that plaintiff could have then dressed the belt at a point between the idlers and counter-shaft pulley, but which place was for other reasons as dangerous as the place where plaintiff applied the dressing but which do not show that when the saw was so shifted there was but the one place where the dressing could have been applied, other than that where plaintiff did apply it, evidence was admissible to prove that when the saw was so shifted as to be under the hood the only place where the dressing could be applied was at a point between the idlers and counter-shaft pulley which was equally as dangerous as the place where plaintiff did apply it, and consequently such findings are not in conflict with a general verdict for the plaintiff. p. 87.</p> <p>8. Trial.—General Verdict.—Special Findings.—Control.—"Where the special findings of the jury are irreconcilable with the general verdict, and the antagonism appears on the face of the record beyond the possibility of removal by any evidence legitimately admissible under the issues, they will control the general verdict, p. 87.</p>

<p>Prom Hamilton Circuit Court; Meade Testal, Judge.</p> <p>Action by Joseph E. Mathews against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Huntington Circuit Court; Samuel E. Cook, Judge. Action by Darwin E. Miles against the Huntington Brewing Company and another. Prom a judgment for plaintiff, defendant Huntington Brewing Company appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)

<p>Prom Wayne Circuit Court; Henry C. Fox, Judge.</p> <p>Action by Susan J. Smith, against John D. Vaughan. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

Prom Marshall Circuit Court; Barry Bernetha, Judge. Action by Susan Huffman as administratrix of the estate of John Huffman, deceased, against the Lake Erie and Western Eailroad Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Criminal Law.—Appeal.—Presenting Ground for Review.— Motion to Quash.—Where a motion to quash an indictment fails to state one or more of the grounds specified in §2065 Burns 1908, Acts 1905 p. 584, no question as to the correctness of overruling such motion can be presented on appeal, p. 148.</p> <p>2. Criminal Law.—Appeal.—Presenting Ground for Review.—Motion for Neto Trial.—Brief.—Where appellant fails to set out in his brief the motion for a new trial, or the substance thereof, or the grounds assigned therefor relied on for reversal, no question is presented as to the correctness of overruling such motion. p. 149.</p>

Prom Delaware Circuit Court; Joseph G. Leffler, Judge. Action by Marilla B. Guthiel, as administratrix of the estate of Charles Guthiel, Jr., deceased, against John J. Dow. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Criminal Law.—Trial.—Instruction.—Obscivre Definition of Reasonable Doubt.—Failure to Request Broader Instruction.—A judgment of conviction will not be reversed merely because the court’s instruction on reasonable doubt was incomplete and obscure, where defendant failed to request a more complete, exact and broader instruction on the subject</p>

Prom Monroe Circuit Court; James B. Wilson, Judge. Action by the State of Indiana on the relation of Pearl Creamer against George B. Volker and another. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Damages.—Breach of Contract.—Measure of Damages.—Damages recoverable for a breach of contract are those resulting from the usual, natural and probable consequences of the breach, which the parties may be thought to have had in mind at the time of entering into the contract, and such special damages which actually occur and are referred to in the contract, p. 172.</p> <p>2. Damages.—Tort.—Measure of Damages.—In actions for tort all damages directly traceable to the wrong done, and arising without an intervening agency, and without fault of the injured person, are recoverable, p. 174.</p> <p>3. Telegbaphs and Telephones.—Failure to Deliver Message.— Damages. — Statute.—‘Pursuant to §§5782, 5783 Burns 1908, §§4.177, 4178 R. S. 1881, a telegraph company is liable for special damages for failure to deliver a message where the addressee lives within one mile of the telegraph station, or within the city or town in which the station is located, p. 174.</p> <p>4. Telegbaphs and Telephones.—Violation of Public Duty.—Nondelivery of Messages.—Damages.—Where the complaint and evidence in an action against a telegraph company show a wrongful violation of the duty to deliver messages imposed by §§5782, 5783 Burns 1908, §§4177, 4178 R. S. 1881, such company is liable for such damages as flow directly from such violation as a natural and probable result of such wrongful act. p. 175.</p> <p>5. Telegbaphs and Telephones.—Failure to Deliver Message.— Loss of Benefit of Contract.—Damages.—Where plaintiff, a physician, had a contract whereby he was to receive $200 for the treatment of a patient, to be paid at the rate of $25 for each visit, and if the patient showed improvement arrangements were to be made for further treatment, the physician was to begin the treatment when notified by telegram, and a telegram was sent requesting the physician to come and on the succeeding day a second telegram was sent, but neither telegram was delivered, which resulted in the employment of another physician instead of plaintiff; the company was liable under the evidence for compensatory damages and a verdict of $100 for plaintiff was justified, pp. 176,177.</p> <p>6. Telegbaphs and Telephones.—Failure to Deliver Message.— Importance of Message.—Notice.—The fact that a message was sent to a physician by telegraph demanding his presence at a distant point the following day, was of itself sufficient to indicate its importance and to warn defendant’s agents that harm and loss would follow its nondelivery, p. 177.</p>

<p>1. Appeal.—Presentation of Grounds of Review.—Motion for New Trial.—Venire de Novo.—Questions Not Properly Presented,.— Where the question as to the alleged findings of the court being conclusions is not presented by a motion for a venire de novo, and neither the failure of the court to make a special finding on motion therefor, nor the overruling of such motion, is assigned as a cause for a new trial, no question as to such matters is properly presented on appeal, p. 181.</p> <p>2. Elections.—Preservation of Ballots.—Purpose.—Contests.—The preservation of ballots voted and not voted, together with all disputed or uncounted ballots, as provided by Acts 1909 p. 162, amending former laws on the subject, is for the purpose of reexamination on application for a recount or on contest, p. 183.</p> <p>3. Elections.—Returns.—Prima Facie Evidence of Result.—The policy of the election law subsequent to 1881 and prior to 1909 was to render the return of the election and canvassing boards pruna facie evidence of the result of an election, and conclusive except for fraud, and as to the protested, disputed and uncounted ballots, p. 183.</p> <p>4. Elections. — Recount. — Preservation of Ballots. — Statute. — Sections 35 and 36 of the act of 1881 (Acts 1881 [s. s.] p. 482i, §§6954, 6955 Burns 1908, §§4713, 4714 R. S. 1881), providing the manner for preserving ballots, have not been repealed, and the acts of 1889, 1891, 1897, 1901 and 1909, are to be construed in pari materia with the provisions of the act of 1881, so far as consistent with it, as reasonably parts of one general system of law on the subject of elections, p. 183.</p> <p>5. Elections.—Ultimate Decision.—Ballots.—An election is ultimately decided by the ballots, and not by the certificate of election, and the candidate receiving the highest number of legal votes is entitled to the office, p. 184.</p> <p>6. Elections.—Preservation of Ballots.—Presumption.—It will be presumed that ballots were honestly preserved after an election, in the absence of any specific evidence that they have been tampered with. p. 186.</p> <p>7. Elections.—Ballots.—Distinguishing Maries.—The rule against distinguishing marks should not be so rigid as to disfranchise an honest voter where it is merely possible that a third mark in the cross on a ballot was intended as a distinguishing mark instead of being the result of the voter’s effort to make the cross more distinct, p. 187.</p> <p>8. Elections.—Ballots.—Mutilation.—A ballot showing that the voter marked in the square opposite the name of a candidate and then erased the mark and the party designation within the square, and marked in the square opposite the name of the opposing candidate, is clearly a mutilated ballot and should not be counted, p. ISO.</p> <p>9. Elections.—Ballots.—Distinguishing Maries.-—A ballot is not objectionable where it'shows that a peculiarity in the cross was due to the lack of equal pressure on the pencil in making the strokes, p. 190.</p> <p>10. Elections.—Ballots.—Distinguishing Maries.—Mutilation.—A ballot having an alleged distinguishing mark which is shown to be a spot or defect in the paper, and an alleged mutilation consisting of a blur on the cross, as if a slightly soiled finger had been rubbed over it, is not objectionable and should be counted, p. 190.</p> <p>11. Elections. •— Ballots. — Distmgitishing Maries. — Inartistic Grosses.—A ballot is not objectionable merely because the cross is not artistically made, but allowance should be made for age, infirmity of sight, unsteadiness of hand, inability to write well, or to make straight lines, cramped position in marking ballots, and perhaps other reasons, p. 190.</p>

<p>Prom Superior Court of Marion County (75,569); John L. McMaster, Judge.</p> <p>Action by University Park Building Company against Gus Habich. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>1. Appeal.—Record and Proceedings Rot in Record.—Precipe.— General Rule.—The general rule is that papers which are independent and distinct from those specifically directed by the precipe to be incorporated in the transcript on appeal, though included in the record, are not properly parts thereof, p. 203.</p> <p>2. Appeal.— Record.—Precipe.—-Incidental Proceedings.— Where the precipe called for a transcript on appeal containing plaintiff’s amended complaint, defendant’s demurrer thereto, and the ruling of the court thereon, the entries showing the filing of the amended complaint and the demurrer are incidental to the parts of the record specifically called for and were properly included, p. 203.</p> <p>3. Master and Servant.—Injury to Servant.—Unguarded Gogs.— Complaint.—Allegations.—Under §8029 Burns 1908, §9 Acts 1899 p. 231, cogs are impressed with the character of dangerous machinery and are required to be guarded, and in a complaint by an employe for injuries sustained by reason of unguarded cogs it was not necessary to allege that they were dangerous, p. 206.</p> <p>4. Master and Servant.—Injury to Servant.—Complaint.—Allegations.—Working Rear Cogs.—A complaint by an employe for injuries sustained by reason of unguarded cogs, alleging that plaintiff at the time of his injury was required to do work which was in immediate proximity to such cogs, is not defective for failure to allege that plaintiff was required to work in “dangerous proximity” thereto, p. 206.</p> <p>5. Master and Servant.—Injury to Servant.-—Complaint.—Allegations.—Servant in Line of Duty.—A complaint by an employe for injuries sustained by reason of unguarded cogs, alleging his employment by defendant to work in and about its rolling-mills and that he was injured while in the course of his employment, doing work required of him by defendant, sufficiently shows that at the time of the injury plaintiff was in the line of his duty. P- 207.</p> <p>6. Negligence.—Proximate Cause.—Test.—A test of proximate cause is to be found in the probability of injurious consequences fairly to be anticipated from the omission of duty or the negligent act. p.207.</p> <p>7. Master and Servant.—Injury to Servant.—Unguarded Cogs.— Proximate Cause.—Where defendant failed to comply with the statute (§8029 Bums 1908, §9 Acts 1S99 p. 231) with reference to guarding cogs, it was bound to anticipate that injury to its employes might result from such failure, and where the cogs were set in motion while plaintiff was at work standing on a piece of iron immediately above same and his foot slipped into said cogs and was injured, the failure of plaintiff to guard said cogs was the proximate cause of the injury. P. H. & F. M. Boots Co. v. Meeker (1905), 165 Ind. 132, and Crawford & MeCrimmon Co. v. Gose (1909), 172 Ind. 222, overruled, pp. 207,212. •</p> <p>8. Master and Servant.—Injury to Servant.—Proximate Cause.— Concurring Cause.-—Where the master failed to guard cogs as required by §8029 Burns 1908, §9 Acts 1899 p. 231, and the plaintiff’s foot slipped into the cogs when they were set in motion, the setting of the cogs in motion was not an intervening cause that will prevent a recovery, but a concurring cause of the injury, of which the violation of the statute was the proximate cause, p. 208.</p> <p>9. Appeal.—Beview.—New Trial.—Cross-Assignment of Error Occurring Before Granting of New Trial.—Where defendant procured the court to grant it a new trial it waived any alleged errors preceding that motion, and its cross-assignment of such errors presents no question for review on appeal, p. 210.</p> <p>10. Master and Servant.-—Injury to Servant.—Injury from Unguarded Cogs.—Statute.—Complaint.—Construing §8029 Burns 1908, §9 Acts 1899 p. 321, to require cogs to be guarded only when located in a place rendering them dangerous to workmen, a complaint which alleges that the cogs were thirteen inches above the floor, that they were not guarded, that plaintiff and other employes were required to work at and near them, that they could have been guarded, and that plaintiff was injured thereby, is sufficient to show the dangerous character of such cogs, without an express allegation that they were dangerous. p. 211.</p> <p>11. Courts.—Stare Decisis.—Personal Injury Cases.—Although the rule of stare decisis may require the court to follow erroneous decisions where they have become a rule of property, the court will not be bound by such error in actions for personal injury. p. 212.</p>

From Huntington Circuit Court; Samuel E. Cooh, Judge. Action by James G-. Robbins and another against Ethan E. Souers. From a judgment for defendant, the plaintiffs appeal. - (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Laura Yadda Newman and others excepting to the final report of John H. Pidler as executor of the will of Eliza J. Newman, deceased. Prom a judgment approving the report, the objectors appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>1. Mines and Minerals.—Contract.—Action.—Complaint.—Matter of Defense.—In an action on a contract granting the right to explore for gas and oil for a compensation to be paid by defendant annually after the first year until the completion of a well on the premises, the complaint need not allege that a well had been completed, since the completion of a well would be matter of defense as to so much of the complaint seeking compensation thereafter, p. 227.</p> <p>2. Husband and Wire.—Wife’s Separate Bstate.—Contracts.— Lease of Wife’s Land.—Joinder of Husband.—Pursuant to §§7852, 7853 Burns 1908, §§5116, 5117 R. S. 1881, giving to a married woman the control of her land and the right to the rents and profits therefrom, the same as if unmarried, she has the power to lease her land for a term of years without her husband joining in such lease, p. 228.</p> <p>3. Mines and Minerals.—Gas and Oil Leases.—Landlord and Tenant.—Relationship Does Not Apply.—The rules applying to the relation of landlord and tenant do not apply to a contract granting the right to explore land for oil and gas. p. 229.</p> <p>4. Husband and Wire.—Wife’s Separate Bstate.—Gas and Oil Lease.—Joinder of Husband.—Ineumbranee.—The contract of a married woman, in which her husband did not join, granting to another the right to explore her land for oil and gas “for the period of five years, with the privilege of a further period of five years for the same purpose and upon the same terms, and as much longer as gas and oil may be found in paying quantities,” is valid and is not an encumbrance or conveyance of her land within §§7852, 7853 Bums 1908, §§5116, 5117 R. S. 1881. p. 230.</p> <p>5. Mines and Minerals.—Action on Gas and Oil Lease.—Possession.—In an action to recover on a contract granting the right to explore land for oil and gas for a compensation to be paid annually until the completion of a well, it need not be shown that defendant ever took or held possession of the land under such contract, p. 230.</p>

<p>1. Criminal Law.—Appeal.—-Presenting Grounds for Review.— Sufficiency of Evidence.—Instructions.—The sufficiency of the evidence to sustain the verdict, and the action of the court in giving or refusing to give instructions, are matters which must be first submitted to the trial court by motion for a new trial before they can be presented for decision on appeal, p. 233.</p> <p>2. Criminal Law.—Appeal.—Briefs.—Failure to Set out Motion for New Trial.—Where neither the motion for a new trial, nor the substance thereof, is set out in appellant’s brief, the correctness of the ruling on the.motion will not be considered, p.233.</p> <p>3. Criminal Law.—Appeal.—Briefs.—Contents.—Rules.—Where it appears that defendant was convicted of larceny of a note on evidence that he obtained the note by fraud from one sustaining a relation of confidence to him, and that he is at liberty under a suspended sentence, there is nothing to justify a departure from the rule requiring the motion for a new trial or its substance to be set out in appellant’s brief and a consideration of the questions sought to be presented, p.233.</p>

<p>1. Criminal Law.—Appeal.—Presentation of Grounds for Review. —Motion to Quash.—Unless a motion to quash an indictment states one or more of the grounds specified in §2065 Burns 1908, §194 Acts 1905 p. 584, no question as to the correctness of overruling such motion can be presented on appeal, p. 236.</p> <p>2. Criminal Law.—Change of Venue.—Discretion of Court.—In all eases not punishable by death, the granting of a motion for a change of venue, on the ground of bias and prejudice existing in the county, is within the discretion of the trial court, and a cause will not be reversed for refusal to grant a change of venue unless it affirmatively appears that such discretion has been abused, p. 236.</p> <p>3. Criminal Law.—Change of Venue.—Affidavits to Support Motion.—Counter Affidavits.—Atuse of Discretion Not Shown.—The fact that affidavits in support of a motion for change of venue are signed by a greater number of citizens than the counter affidavits, does not show an abuse of discretion in refusing to grant the change, p. 237.</p> <p>4. Criminal Law.—Indictment.—Dismissal of One Count Not Ground for Reoersal of Conviction on Another.—Where defendant was put upon trial on an indictment containing two counts, and at the close of the evidence the second count was dismissed, such dismissal is no ground for reversal of a judgment of convietion on the first count, although it may have worked an acquittal of the offense charged in the second count, p. 237.</p> <p>5. Cbiminal Law.—Jury.—Competency of Jurors.—Knowledge of Defendant’s Reputation.—Under §2101 Burns 1908, Acts 1905 p. 584, §230, the fact that a juror knows the general reputation for morality of a defendant in a criminal case is bad, is not ground for challenge for cause, p. 23S.</p> <p>6. Cbiminal Law.—Harmless Error.—Challenge of Jurors.—Where it appears that defendant already possessed information enabling him to exercise his right of peremptory challenge as intelligently as he could if the jurors had been permitted to answer the question whether defendant’s general reputation was good or bad, he was not prejudiced in any substantial right by the court’s refusal to permit such question to be answered, p.238.</p> <p>7. Cbiminal Law.—Appeal.—Harmless Error.—Admission of Evidence.—The erroneous admission of testimony is not ground for reversal where the verdict is fully sustained by other testimony in the cause, p. 238.</p> <p>8. Criminal Law.—Appeal.—Technical Errors.—Statute.—Under §2221 Burns 1908, Acts 1905 p. 584, §334, technical errors, defects or exceptions to any decision or action of the trial court, which do not prejudice the substantial rights of the defendant, will be disregarded on appeal, p. 239.</p> <p>9. Criminal Law.-—Appeal.—Presenting Ground for Review.— Briefs.—Waiver of Error.-—An alleged error or point not contained in the statement of points in appellant’s first brief is waived, p. 239.</p> <p>10. Criminal Law.—Appeal.—Abstract Statements.-—Ho Grounds for Review.—Mere abstract statements of law or fact, or both, unless applied specifically to some particular ruling or action of the court present no question on appeal, p. 240.</p>

<p>1. Bills and Notes.—Anticipating Defense.—Complaint.—Practice. —The proper practice, in an action by the indorsee or holder to recover on a check or other negotiable instrument, is to state his cause of action on the instrument without anticipating and avoiding defenses, p.247.</p> <p>2. Pleading. — Complaint. — Anticipating Defenses.—Demurrer.— Where a complaint, in addition to facts constituting a cause of action, states other material and relevant facts which are a defense to the cause of action, without avoiding same, it will not withstand a demurrer, p.248.</p> <p>3. Pleading.—Complaint.—Allegations.—Disclosure of Possible Defense.—The allegation of facts in a complaint which incidentally disclose a possible defense is not anticipating a defense, p.248.</p> <p>4. Bills and Notes.—Fraud.—Bona Fides.—Burden.—The indorsee or holder of a negotiable instrument, put into circulation fraudulently, has the burden of proving that he acquired it for a valuable consideration before maturity and without notice of the fraud, and he may assume the burden in the first instance by proper allegations in his complaint on the instrument, p. 249.</p> <p>5. Bills and Notes.—Fraud.—Defenses.—Availability as to Bona Fide Holder.—That negotiable paper was diverted in fraud of the maker is not available as a defense in an action on the instrument by a bona fide holder for value without notice, p. 250.</p> <p>6. Bills and Notes.—Conditions as to Liability.—Innocent Holder. —An agreement that the maker of a negotiable instrument shall only be liable thereon on a contingency is not a defense against an innocent holder, p. 250.</p> <p>7. Bills and Notes.—Bona Fide Holder.—Notice of Lack of Funds to Pay Check—-Where, at the time of taking a check, knowledge was imparted to the indorsee that the drawee held no money with which to pay same, and it was taken on agreement that such funds would be available at a future date, the taking of the check under such circumstances does not carry with it notice of any fraudulent infirmity, p. 251.</p> <p>8. Bills and Notes.—Fraud.—Notice.—Post-dated and Memorandum Checks.—Neither a post-dated check nor a memorandum check in itself is notice of fraud in putting it in circulation sufllcient to destroy the bona fides of a purchaser for value, p. 252.</p> <p>9. Bills and Notes.—Checks.—Delay in Presentment.—Defenses. —The fact that the holder has taken a check from the payee after a reasonable time for its presentment for payment has elapsed, unconnected with other suspicious circumstances, though rendering the holder subject to the risk of failure of the bank, does not otherwise subject him to equitable defenses in an action against the drawer, p. 252.</p> <p>10. Bills and Notes.—Assignment of Check.—Consideration.— Where the indorsee of a check executed his note for the check, the allegations of the complaint, in an action by such indorsee against the drawer of the check, that said indorsee subsequently paid the note, sufficiently makes it appear that he paid the consideration for the assignment, p. 253.</p> <p>11. Bills and Notes.—Assignment of Check.—Consideration.—Antecedent Debt.—A cheek, as well as any other negotiable instrument, may’ be transferred in payment of an antecedent debt p. 253.</p> <p>12. Bills and Notes.—Indorsement of Check.—Knowledge by Indorsee that Indorsement is Made on Behalf of Drawer.—Defenses. —Where the indorsee of a cheek understood at the time that the indorsement was made by the indorser in behalf of the drawer as evidence of a loan by the indorsee to the drawer, he is not entitled to the protection of a bona fide indorsee, but is subject to all defenses open to a drawer or maker against the payee, p. 253.</p> <p>13. Bills and Notes.—Assignment of Oheclc.—Duty of Inquiry.— Where a cheek was presented to an indorsee by a person representing himself to be the agent of the drawer, the willingness of such agent to accept a release of his own debt for a part of the amount of the check was sufficient to charge the Indorsee with the duty of inquiring as to the authority of such agent, p. 254.</p> <p>14. Bills and Notes.—Suing as Indorsee.—Evidence.—Insufficiency.—One who sues as an indorsee of a check cannot recover on evidence showing him to be the payee, p. 255.</p>

<p>1. Insurance.—Actions on Policies.—Reinsurance.—Complaint.— Failure to Set out Reinsurance Contract.—In an action on a policy of reinsurance, the contract between the defendant company and the company for whom the reinsurance was written, providing for such reinsurance, is not the foundation of the action and need not be set out in the complaint, p. 261.</p> <p>2. Insurance. — Reinsurance. — Limiting Liability. — Proofs of Death.—Answer.—Demurrer.—In an action on a policy of rein* surance, where it appears from the contract between defendant company and the company for whom the risk was reinsured, which is made a part of defendant’s answer averring a failure to furnish proof of death of the insured to the company procuring such reinsurance, that the furnishing of such proof to the latter company was not contemplated by its terms, a demurrer to such answer was properly sustained, p. 261.</p> <p>3. Insurance.—•Reinsurance.—Rights of Assured.—Pursuant to §4753 Burns 1908, §15 Acts 1897 p. 318, providing for the transfer and reinsurance of a company’s business, the rights of the assured cannot be reduced by the provisions of the reinsurance contract entered into between the companies, p. 261.</p> <p>4. Evidence.—Pleadings.—Admissions.—In an action on a policy of insurance the plaintiff is not bound by the terms of a reinsurance contract by putting in evidence the defendant’s answer containing such contract, p.262.</p>

<p>1. Criminal Daw.'—Affidavit.—Failure of Prosecuting Attorney to Indorse Approval.—The failure of a prosecuting attorney to indorse his approval on an affidavit as required by §1990 Burns 190S, Acts 1905 p. 584, is fatal if attacked by a motion to quash, p. 264.</p> <p>2. Criminal Daw.—Indictment.—Affidavit.—Failure to Attaclo in Trial Court.—Appeal.—An indictment or affidavit can only be successfully assailed for the first time on appeal when it fails to state facts sufficient to constitute a public offense, but such assignment of error will not reach mere uncertainty or a defective statement of facts or technical defects which could have been corrected in the trial court, p. 265.</p> <p>3. Criminal Daw.—Indictments,—Affidavits.—Objections.—Appeal. —Application of Civil Code.—By virtue of §2231 Burns 1908, §344 Acts 1905 p. 584, the provisions of the civil code (§348 Burns 1908, §343 R. S. 1SS1), that objections to a complaint not taken by demurrer or answer are waived, except when the objection is that the court has no jurisdiction of the subject of the action or that the complaint does not state facts sufficient to constitute a cause of action, have heretofore governed the criminal procedure with reference to objections to indictments and informations and been authority for assailing such criminal pleading for the first time on appeal, p.266.</p> <p>4. Criminal Daw.—Statutes.—Retroactive Effect.—Pending Actions.—Appeal.—Objections.—The provisions of §3 Acts 1911 p. 415, amending §34S Burns 1908, §343 B. S. 1881, so that a complaint cannot be assailed for want of facts for the first time on appeal, must also apply to objections to indictments and informations in cases thereafter arising but do not apply in a case where the commission of a crime, the trial of the accused, and the rendition of judgment, occurred before the passage of said act. p. 266.</p>

From Knox Circuit Court; George W. Buff, Special Judge. Action by Mary E. Harbison objecting to the probate of a will offered by John T. Boyd and others. From a judgment for proponents, the objector appeals.

From Porter Circuit Court; Cornelius B. ColUns, Special Judge. Action by Mary V. Tyler as administratrix of the estate of Harry B. Tyler, deceased, against the Valparaiso Lighting Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Appeal.—Who May Appeal.—Party in Interest.—Under the provisions of §671 Burns 1908, §632 R. S. 1881, authorizing an appeal by “either party” to an action, only a party having an interest in the subject-matter of the judgment appealed from may challenge its correctness by appeal, p. 290.</p> <p>2. Executobs and Administbatobs.—Actions.—Bight to Appeal.— Where the only question involved in a petition to construe a will was whether a certain devise vested at the death of the testator, or was postponed to a time certain, fixed for distribution and was contingent on the devisee being alive at that time, an executor who has no interest in the matter other than his administrative duties relating to the distribution of the estate, has no such interest as will authorize an appeal by him from the judgment construing such will. p. 291.</p>

<p>1. Nuisance.—Action for Abatement and Damages.—Pleading.— Contributory Negligence.—In an action to abate a nuisance and for damages for its maintenance, under §§291-293 Burns 1908, §§289-291 R. S. 1881, plaintiff need not aver freedom from contributory negligence, nor that the injury could not have been avoided by the use of ordinary care. p. 294.</p> <p>2. Mines and Minerals.—Oil Wells.—Injury to Adjoining Property.—Injunction.—Damages.—The pumping of oil and salt water from a well, and permitting it to flow and spread upon adjoining realty so as to collect thereon and destroy the crops and timber</p> <p>„ thereof and permanently injure the productive power of the 2and and render it useless for agricultural purposes, is an injury that may be enjoined and for which damages may be- recovered, p. 295.</p> <p>3. Landlord and Tenant.—Renting on Shares.—Possession of Crops.—Where land is rented under a contract by which the landlord is to receive a share of the crops as rent, to be delivered by the tenant after measurement, the tenant is entitled to the possession of such crops until they have been measured, p. 299.</p> <p>4. Landlord and Tenant.—Renting on Shares.—Action for Injury to Crops.—Where land is rented for a share of the crops, both the landlord and the tenant have an interest in such crops and are both entitled to damages for their injury or destruction, p. 299.</p> <p>5. Landlord and Tenant.—Renting on Shares.—Action by Landlord for Injury to Crops.—In the absence of an objection for defect of parties, a landlord may, alone, maintain an action for damages sustained by injury to crops in which his interest is undivided, p. 299.</p> <p>6. " Landlord and Tenant.—Renting for Cash.—Action for Injury to Crops.—Where land is rented for cash, the tenant only can recover for injury to crops raised during the tenancy, p. 300.</p> <p>7. Nuisance.-—Abatement.—Damages.—Permanent Injury.—Where the productive power of land has been destroyed by reason of the existence of a nuisance, a recovery for permanent Injury to the land is authorized, although such nuisance can be abated, p. 300.</p> <p>8. Judgment.—Enjoining Act Already Abandoned.—Remedy.—In an action to enjoin a nuisance and to recover damages occasioned thereby, where, notwithstanding a finding that the acts creating the nuisance have been discontinued, a judgment for damages and decreeing an injunction is rendered for plaintiff, defendant’s remedy is to move to modify the judgment by eliminating the portion thereof decreeing an injunction, p. 301.</p> <p>9. Nuisance.—Damages.—Reduction of Damages.—Duty of Injured Party.—A person who is injured by the maintenance of a nuisance is not bound to do anything to prevent or reduce the damage occasioned thereby, p. 301.</p>

Prom Cass Circuit Court; James P. Wason, Special Judge. Petition by John C. Rehwald and another to establish a drain. Frederick Seybold and others remonstrated. From a judgment for petitioners, the remonstrants appeal.

<p>1. Railroads.—Grossing Accident.—Look and Listen.—It cannot be said as a matter of law that a person crossing a railroad track at a crossing is required, under all circumstances, or conditions, to look or listen at a particular time, in a particular direction, or from a particular place, p. 315.</p> <p>2. Railroads.—Grossing Accident.—Duty to Look.—Complaint.— Where plaintiff was injured by a train coming from the northeast while he was in the act of crossing one track of the defendant’s double tracks, and it is averred in the complaint that the view to the northeast was obstructed until plaintiff reached a point within eight or nine feet of the west track, and that to the south and east were tracks and switches of another railroad company, and it is not averred which of the two tracks was used for north bound and which for south bound trains, the court cannot say that, because no obstruction is alleged to exist to the south and east, plaintiff should have continued to look toward the northeast until after he had passed the obstruction, since it was also his duty to look to the southeast to guard against possible injury, p. 316.</p> <p>3. Railroads.—Grossing Accident.—Allegation as to Obstruction.— Complaint.—Where a complaint for injuries incurred at a railroad crossing alleged that on the day of the injury plaintiff, with others, was engaged in moving a watch-house, and had just placed it, and that his view to the north would have been obstructed by said watch-house about twenty feet west of the track continuously up to a point within eight or nine feet of said track, such allegation shows the obstruction to relate to the time of setting the watch-house, and of the accident, and is a sufficient allegation of the obstruction, p. 318.</p> <p>4. Rah,roads. — Grossing Accidents. — Contributory negligence. — Complaint.—Where plaintiff alleged in his complaint that he was an employe of the G. company; that said company had many tracks east of and parallel with defendant’s tracks; that at the time of the accident plaintiff was, with others, engaged in removing a watch-house which occasioned an obstruction of his view of defendant’s train approaching from the northeast, that after setting the watch-house plaintiff started to cross defendant’s west track at the street crossing and when he got to the southeast corner of the watch-house he looked up defendant’s tracks a distance of about 250 feet, and also listened, and neither saw nor heard any train approaching on said track from the northeast but saw and heard a train going northeast on defendant’s east track, whereupon he looked to the southeast to see if there were trains approaching; that just as he placed one foot ■ on defendant’s west track, he was struck and injured by defendant’s locomotive coming from the northeast and which was being negligently operated in violation of the laws of the State and of the city ordinance without sounding the whistle or bell or giving any warning whatever; and that but for such negligence of defendant the injury would not have occurred; the complaint sufficiently shows that plaintiff! was a traveler over the street at said crossing, and it cannot be said as a matter of law that it shows plaintiff guilty of contributory negligence^ on the theory that he was bound to see and hear what, by looking and listening, he would have seen and heard, p. 318.</p> <p>5. Railkoads. — Grossing Accident.—Looh and Listen.—Duty to Stop.—The duty to look and listen does not require a traveler, who is about to cross a railroad track, to stop unless it is necessary to do so in order to see. p. 322.</p> <p>6. Railkoads.—Grossing Accident.—Instruction.—“Looh and Listen.”—An instruction, that plaintiff! was bound to use ordinary care as he approached and attempted to cross defendant’s track, and that if the evidence shows that he exercised that degree of care that an ordinarily prudent person would have exercised under all the circumstances, and was unable to hear and see the locomotive approaching then he was not guilty of contributory negligence; when construed with another instruction, that it cannot be said as a matter of law that plaintiff should have looked and listened at any particular point or at any particular time, or that he should have looked in one direction at a particular time and in another direction at another particular time, but that plaintiff should have looked and listened at such time, at such places and in such directions as a person exercising ordinary prudence would have done under the circumstances; and when considered with other established rules of law, and evidence showing a violation of a speed ordinance and failure to ring the bell; is not open to the objection that it ignores the “look and listen” rule and leaves it to the jury to say that plaintiff was not required to look and listen, p. 323.</p> <p>7. Railroads.—Grossing Accident.—Instructions.—Ordinary Gore. —“Looh and Listen.”—An instruction that a person has a right to cross a railroad at a highway crossing and is only required to exercise ordinary care in so doing, that to constitute such care he must use his senses of sight and seeing and take all reasonable precautions to avoid injury, that the kind and degree of care must depend on the circumstances of each case, and that he must act as a person exercising ordinary care and prudence would act under the circumstances, is not open to the objection that it leaves it to the jury to excuse plaintiff from looking and listening, nor that the law fixes the quantum of care to be used by a traveler in such eases in that the traveler is bound to look and listen in addition to the use of ordinary care. p. 323.</p> <p>8. Appeal.—Instructions.—Prejudice.—Where the court instructed that an ordinance was in force providing that locomotive whistles should not be sounded within the city, except in making necessary track signals, and such as may be absolutely necessary to prevent injury to persons and property, the defendant was not harmed by the court giving an instruction consisting of §5431 Burns 1908, §4020 R. S. 1881, relating to the subject of signals at highway crossings outside of cities, p. 324.</p> <p>9. Appeal.—Instructions.—Harmless Brror.—Where there was no evidence as to plaintiff’s condition other than his physical condition arising from the injury sustained in attempting to cross defendant’s railroad, and the damages were restricted to his injuries, an instruction which told the jury it may consider every particular phase of his injuries, loss of time, if any, with reference to his condition and ability to earn money in his business or calling, was not harmful to defendant by failing to limit the same to loss arising from the injury, p. 325.</p> <p>10. Negligence.-—Contributory Negligence. — “Incurring Rislc.”— The term “incurring the risk” is properly applicable to the relation of master and servant, and in actions arising out of non-contractual relations it is a synonym for contributory negligence, p. 325.</p> <p>11. Trial.—Instructions.—Applicability to the Bvidence.—In an action for injuries received at a railroad crossing, where the evidence shows that the watchman was at the crossing, and there was no evidence that plaintiff knew where he should be, or that he was not where he should be, an instruction on the hypothesis that the watchman was absent from his post of duty was properly refused, p. 327..</p> <p>12. Railroads.—Crossing Accident.—Instructions.—Where plaintiff’s view of defendant’s train was obstructed by a watch-house, and the train by which he was injured at a crossing approached the crossing without sounding a whistle or bell, and at an unlawful rate of speed, an instruction which told the jury, without qualification, that if plaintiff placed or assisted in placing the watch-house, he could not be excused for failing to observe the approach of defendant’s train, was properly refused, pp. 327, 335.</p> <p>13. Trial.—Instructions.—Ignoring Question of Negligence Per Be. —In an action for injuries incurred at a railroad crossing, a requested instruction that “where an injury results from an accident that ordinarily careful and prudent ruen in the exercise of ordinary care would not have foreseen and anticipated as likely to occur, the law regards it as purely accidental, and for such injury no one can be held liable,” ignores the question of negligence per se in defendant’s failure to ring the bell and comply with the speed ordinance in force at the time and place of the injury, and its refusal was proper, p. 327.</p> <p>14. Railroads.—Grossing Accident.—Evidence.—Terdict.—In an action for injuries incurred at a railroad crossing, where the evidence shows that plaintiff’s vision of defendant’s tracks toward the northeast was obstructed by a watch-house which plaintiff had just assisted in setting, that in starting across the tracks he looked to the northeast but could only see up the track for a distance of 250 to 300 feet because of the watch-house, that he saw the flagman from 60 to SO feet east of him, that he saw no train approaching from the northeast, that he then started diagonally across the tracks and as he put one foot over the west rail he was struck by a train coming from the north, that the train was exceeding the speed ordinance of the city and no whistle or bell was sounded, or other warning given, the evidence is sufficient to sustain a verdict for plaintiff, pp. 328, 334.</p> <p>15. Railroads.—Grossing Accident.—Duty to Loolo and Listen.— The same degree of caution in looking and listening for trains, before crossing a railroad, is not required of one whose duties on or about a railroad track require his crossing, as in the case of one who is discharging no duty and is purely a traveler, p. 329.</p> <p>16. Appeal.—Harmless Error.—Instructions.—Request.—In an action for injuries sustained at a railroad crossing, the failure of the court to instruct on the subject of the law’s presumption as to a person’s hearing and seeing what ought to be seen and heard, or what he is in a position to see and hear, and as to the effect of the presumx>tion in the particular case, was not error in the absence of a request for such instruction, p. 331.</p> <p>17. Evidence.—Presumptions.—Seeing and Hearing.—That one sees and hears what he is in a position to see and hear, is a presumption of law which will prevail in the absence of evidence to the contrary, p. 332.</p>

Prom Superior Court of Marion County (76,200); Vinson Carter, Judge. Action by Pearson Mendenhall and another against The First New Church Society of Indianapolis. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

Prom Miami Circuit Court; Joseph N. Tilleit, Judge. Action by John Knox against tbe Pittsburgh, Cincinnati, Chicago and St. Louis Eailway Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Criminal Law.—Former Jeopardy.—Insufficient Indictment.— Partial Trial.—Where defendant was put on trial after his motion to quash the indictment was overruled, and, at the close of the evidence, the court reconsidered its ruling and sustained the motion to quash, he was not thereby put in jeopardy, p. 358.</p> <p>2. Criminal Law.—Indictment.—Motion to Quash.—Waiver of Jeopardy.—Where the action of the trial court in quashing a valid indictment, after defendant was put on trial and the evidence heard, was induced by defendant, he thereby waived his right to immunity from a second jeopardy, p. 359.</p> <p>3. Criminal Law.—Former Jeopardy.—Objection to Discharge of Jury in Former Trial.—Where the court reconsidered its ruling and sustained a motion to quash the indictment at the close of the evidence, the objection of the defendant to the discharge of the jury short of acquittal is of no avail in a claim that the proceedings constituted a former jeopardy, p. 359.</p> <p>4. Criminal Law.—Appeal.—Record.—Motion to Quash.—Failure to Show Grounds for Motion.—No question as to overruling a motion to quash is presented on appeal where neither the record nor appellant’s brief shows such a motion stating any grounds therefor, p. 359.</p> <p>5. Criminal Law.—Appeal.—Harmless Error.—Exclusion of Evidence.—The action of the trial court in sustaining objections to questions calling for expert testimony relating to the effect on the human mind of the excessive use of intoxicating liquor as affecting motive or intent, is harmless where, after such ruling, the court permitted the witness, as well as other witnesses, to give testimony fully covering the matter involved in the questions, p. 360.</p> <p>6. Criminal Law.—Trial.—Instructions.—Reasonable Doubt.—An instruction on reasonable doubt, correct but not full, given at the request of the State, is cured by an instruction given at defendant’s request which fully covers what the former may lack in a comprehensive definition of such doubt, p. 360.</p> <p>7. Criminal Law.—Trial.—Instructions.-—Omitting “From the Evidence.”—Consideration os a Whole.—Instructions are to be considered as a whole, and an instruction stating the essential elements of forgery as applied to the charge against defendant, which told the jury that if it found the facts established beyond a reasonable doubt it should convict, was not misleading for failure to include the words “from the evidence” where by other instructions the jury was told that it could not convict unless the evidence convinced it of defendant’s guilt beyond all reasonable doubt, p. 361.</p> <p>S. Criminal Law.—Trial.—Instructions.—Province of the Jury.— An instruction which sets out all the elements of the crime charged, and states that if the facts constituting such elements have been proved beyond a reasonable doubt the jury should find the defendant guilty, is not an invasion of the province of the jury where there is a further instruction that the jury is the judge of the law as well as the facts, p. 361.</p> <p>9. Criminal Law. — Trial. — Instructions. — Failure to Include Charge on Mental Condition.—The giving of instructions which failed to tell the jury that the mental condition of defendant brought on by long continued drinking of intoxicating liquor might be considered on the question of intent was not error, where by other instructions the jury was fully instructed on the question, p. 361.</p> <p>10. Criminal Law.—Trial.—Instructions.—Repetition.—Refusal.— The refusal of instructions tendered is not error if they are in effect but a repetition of other instructions given by the court, p. 362.</p> <p>11. Criminal Law. — Appeal. — Amendment of Judgment. — Presumption.-—Where the return to a writ of certiorari shows that an error in the judgment was discovered and corrected before the order-book entry thereof was signed by the judge, it will be presumed on appeal, in the absence of anything appearing in the record to the contrary that the correction was made by the court within the term when it might lawfully be made. p. 362.</p>

<p>1. Gaming.—Visiting Gambling House.—Statute Construed.—The exception as to physicians in §2371 Burns 1908, §470 Acts 1905 p. 584, relates only to the offense of visiting a house of ill-fame or assignation stated in the first part of said section, and need not be negatived in a prosecution for visiting a gaming house, p. 365.</p> <p>2. Criminal Law.—Affidavit.—Visiting Gambling House.—Sufficiency.—An affidavit charging the offense of visiting a gambling house under §2371 Burns 1908, §470 Acts 1905 p. 584, is sufficient, if couched in the language of the statute, without a particular description of the house or the defendant’s purpose in visiting it. p. 365.</p> <p>3. Statutes.—Title. — Criminal Statutes. — Sufficiency. — Section 2371 Burns 1908, §470 Acts 1905 p. 584, making it a public offense to visit a house of prostitution or a gambling house is not unconstitutional as not being embraced in the title of the act. p. 365.</p> <p>4. Gaming.—Visiting Gambling House.—Evidence.—Sufficiency.— Evidence that defendant, together with men known to be gamblers, was arrested about 1 o’clock at night in a room over a saloon, that the place was reputed to be a gambling house, and that the police gained access only by forcing the door, is sufficient in the absence of testimony in behalf of defendant to sustain a conviction for visiting a gambling house, p. 365.</p> <p>5. Gaming.—Visiting Gambling House.—Character of House.—' Proof that a house bears the reputation of being a gambling house is sufficient to establish its character as such, p.366.</p>

From Kosciusko Circuit Court; Waller Brubaker, Special Judge. Action by Roy Huffman against Charles Thompson and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Railroads.—Abolishing Grade Grossings.—Appeal.—In a proceeding under the track elevation statute, §§8864-8872 Burns 1908, Acts 1505 p. 144, providing for the alteration of steam rail-' road crossings and to secure the depression or elevation of steam railroad tracks, the right of appeal by one aggrieved by the decision of the board of public works as to the assessment of damages is given by §5 of said act, and not otherwise, p. 376.</p> <p>2. Railroads.—Abolishing Grade Grossings.—Appeal.—Pleading.— Remonstrance.—Original Complaint.—In an appeal to the Superior Court under §SS6S Burns 1908, §5 Acts 1905 p. 144, from the decision of the board of public works as to the assessment of damages in a track elevation proceeding, the remonstrance filed before such board is a proper pleading, and an original complaint filed in the superior court with such appeal is superfluous and will not be considered, p. 377.</p> <p>3. Railroads.—-Abolishing Grade Grossings.—Alteration of Street Grade.—Nature of Proceedings.—The necessary alteration, change or elevation of the grades of streets and the depression and elevation of steam railroad tracks under §§8864-8872 Burns 1908, Acts 1905 p. 144, must be regarded wholly as a street improvement and is a part of the police power conferred by the State for promoting the safety of public travel, and is in no sense a railroad construction, p. 382.</p> <p>4. Railroads.—Abolishing Grade Grossings.—Damages.—“Recoverable Under Existing Laxos.”—The provision of the track elevation statute, §8865 Burns 1908, §2 Acts 1905 p. 144, including “damages, if any, recoverable under existing laws,” in the designation of what shall be included in the expense to be borne by the parties in interest in the elevation or depression of tracks, does not authorize a recovery of damages on account of such elevation or depression of tracks, but merely directs those aggrieved to seek redress under existing laws, if any there be, the term v “recoverable” meaning that which may be recovered as a matter of legal right, p. 384.</p> <p>5. Municipal Coepobations.—Change of Grade of Public Streets. —Damages.—Liability.—In the absence of constitutional or statutory provision requiring compensation for property injured, no legal liability arises against a city or town in favor of an abutting property owner for consequential damages on account of the alteration or change of the street grade done as a matter of public necessity pursuant to statutory authority and without negligence or lack of skill, pp. 385, 386.</p> <p>O. Eminent Domain.—Consequential Injury.—“Talcing of Private Property.”—Consequential injury to an abutting property owner arising from a work of piiblic necessity and convenience performed within the limits of a street is not within the provision of the constitution prohibiting the taking of private property for public use without compensation therefor being first assessed and tendered, p. 385.</p> <p>7. Municipal Coepobations.—Rights of Abutting Property Owners.—Access.—Subject to Rights of State.—An abutting property owner has a right of access from his premises to the street, but be cannot demand that the grade of the street should not be changed or altered because it might interfere with his right of access, since such right is private and is held and enjoyed subject to the rights of the State, through the municipality, to improve the street or change its grade when public necessity so demands, p. 388.</p> <p>8. Municipal Coepobations.—Change of Grade of Streets.—Liability.—Statute.—The provision of §3508 Burns 1894, §3073 R. S. 1881, §27 Acts 1807 p. 33, that the established grade of a street shall not be changed until the damage occasioned by such change shall have been assessed and tendered, so far as it applied to the city of Indianapolis, was repealed by §3772 Bums 1894, Acts 1801 p. 137. p. 390.</p> <p>O. Statutes.— Revision.—Repeal.—Where a new statute covers the whole subject-matter of an old one, aids new provisions and makes changes, and is intended to be a revision and to take the place of the old, it repeals the old law by implication, p. 392.</p> <p>10. Constitutional Law.—Bqual Protection of the Law.—Where an abutting property owner bases his claim for damages on the change of a street grade in the city of Indianapolis made subsequent to the time when the municipal corporation act of 1905 (Acts 1905 p. 210) went into effect, there is nothing to support his contention that the Indianapolis city charter of 1891 (Acts 1891 p. 137) by repealing §3508 Burns 1894, §27, Acts 1867 p. 33, so far as the same applied to the city of Indianapolis, thereby established for said city a different rule of law than that established by said act of 1867 for other cities of the State in violation of the 14th amendment of the federal Constitution, since the act of 1905 applies to all cities of the State and repeals the act of 1867. p. 303.</p> <p>11. Municipal Corporations.—Change of Grade of Streets.—Liability.—Statute.—The municipal corporation act (Acts 1905 p. 219) contains no provision making a city liable for damages arising out of the change or alteration of the grade of any street or alley, and leaves in forcé the common law rule as to such liability, p. 303.</p> <p>12. Constitutional Law.—Compensation for Injury to Property. —Taking Property Without Just Compensation.—Compensation for property injured or' damaged is not required by the Constitution of Indiana (Const. Art. 1, §21), which prohibits only the taking of property without just compensation, p. 394.</p> <p>13. Courts.—Decisions.—Canclusiveness.—The Supreme Court of Indiana will adhere to and follow its own decisions wherein the rules of the common law are expounded, and is not required to accept and follow the common law as expounded and enforced by the courts of other states, p. 394,</p> <p>14. Constitutional Law.—Police Poiver.—The police power of the State not only embraces laws and regulations intended to promote the public health, morals or safety, or to suppress that which is disorderly or unsanitary, but it also embraces and applies to laws and regulations which conduce to the general welfare of the public or state, p. 394.</p> <p>15. Constitutional Law.—Police Power.—Track Elevation Statute.—The track elevation statute (§§8864-8872 Burns 1908, Acts 1905 p. 144) is within the exercise of the police power of the State, p. 395.</p> <p>10. Railroads.—.Abolishing Grade Crossings.—Change of Street Grade.—Liability.—No negligence or carelessness being imputed to them, railroad companies in elevating or depressing their tracks on city streets pursuant to an order of the board of public works made under the authority of the act of the legislature (§§8864-8872 Burns 1908, Acts 1905 p. 144) are not liable to abutting property owners for damages from a resulting change of the street grade, p. 395.</p> <p>17. Constitutional Law.—Track Elevation Statute.—The statute providing for the elevation or depression of steam railroad tracks (§§8864-S872 Burns 1908, Acts 1905 p. 144) is not violative of the 14th amendment to the federal Constitution, nor of the provisions of the state Constitution, p. 396.</p>

Prom Superior Court of Marion County (73,669); Vinson Carter, Judge. Action by the Indianapolis Light and Heat Company against the City of Indianapolis and others. Prom a judgment for plaintiff, the defendants appeal.

<p>1. Intoxicating Liquors.—Retail License.—Recovery of License Fee.—The provision of §9 of the county local option law (Acts 1908 [s. s.] p. 4) that the holder of a license for the sale of intoxicating liquor should be refunded the amount of his license fee for the unexpired term upon surrender of such license within ninety days after an election at which the majority of the legal votes cast was against the sale of intoxicating liquors, only applied to licenses which were valid when issued, p. 416.</p> <p>2. Intoxicating Liquors.—Yoid License.—Recovery of License Fee.—Where, on appeal from the action of the board of commissioners in granting a liquor license, the circuit court held the applicant not entitled to a license, the license granted became at the time of such judgment, absolutely void for all purposes, and there can be no recovery of the license fee paid, p. 416.</p>

Prom Superior Court of Marion County (76,699); John L. McMasber, Judge. Proceedings by the City of Indianapolis to abolish certain railroad grade crossings. The Sinker-Davis Company remonstrated against the assessment of damages by the board of public works of said city. Prom a judgment for said city and the railroad companies, the remonstrant appeals.

Prom Howard Circuit Court; Lex J. Kirlcpatrich, Judge. Action by Ira P. Crail and others against Prank M. Millikan and others. Prom a judgment for plaintiffs, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Trespass.—Griminal Responsibility.—Sufficiency of Affidavit.— Description of Land.—In a prosecution for trespass under §2280 Burns 1908, Acts 1905 p. 584, the description in the affidavit of the land as being in Knox county, Indiana, and as “the land known as the Sanborn Children’s Park, of which these affiants are the occupants and trustees,” is sufficient, p.438.</p> <p>2. Criminal Law.—Affidavit.—Motion to Quash.—Amendment Before Ruling on Motion.—Where a motion to quash an affidavit had been made, and before ruling on the motion, the prosecuting attorney requested leave to amend, the refusal of such request was error, p. 439.</p> <p>8. Criminal Law.—Quashing Affidavit.—Refusal of Leave to File New Affidavit.—After sustaining a motion to quash an affidavit, it was error for the court to refuse the prosecuting attorney permission to file a new affidavit, p. 439.</p>

Prom Lawrence Circuit Court; James B. Wilson, Judge. Action by Charles P. Butler against the Board of Commissioners of the County of Lawrence. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1399 Burns 1908, Acts 1901 p. 565.)

Prom Wabash. Circuit Court; A. TA. Plummer, Judet. Action by Lydia O. Terrell against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Criminal Law.—Appeal.—Ruling on Motion for Change of Venue.—Manner of Presenting Question.—Alleged error in overruling a motion for change of venue, to be considered on appeal, should he assigned as cause for a new trial, p. 462.</p> <p>2. Criminal Law.—Appeal.—Motion for Neio Trial.—Failure to Set Otit in Briefs.—Waiver.—Appellant’s failure to set out in his brief the motion for a new trial, or its substance, waives his light to a consideration thereof on appeal, p.462.</p> <p>8. Criminal Law.—Appeal.—Presenting Question for Review.—■ Motion to Quash.—Motion Not in Record.—Where a motion to quash the affidavit does not appear in the record, and nothing appears therein to indicate the reasons presented to the trial court in support of the motion, no question is presented on appeal as to the correctness of the ruling thereon, p.462.</p>

Front Greene Circuit Court; Charles E. Henderson, Judge. Action by Lula Bennett, Administratrix of the estate of Emery C. Bennett, deceased, against the Evansville and Terre Haute Railroad Company and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court with its recommendations under §1429 Burns 1908, Acts 1893 p. 29.)

<p>1. Appeal.—Several Appellants.—Title of Appeal.—Separate Assignment of Errors.—Sufficiency.—Rule six of the Supreme Court does not require one appeal to have different titles, because several appellants each assign error separately, nor is it necessary to repeat the title in each separate assignment; it being sufficient to set out the names of all the parties appellants and appellees in the title, and the name of each appellant in his separate assignment of error, p. 476.</p> <p>2. Drains.—Proceedings to Establish.—Repeal of Statute.—■ Costs of Proceeding.—Where a drainage petition was filed under the circuit court drainage act of 1885 (§5622 et seq. Burns 1901, Acts 1885 p. 129) and the commissioners employed help and commenced the work of viewing and laying out the ditch, and were still engaged in the work at the time of the enactment of the drainage law of 1905 (Acts 1905 pp. 447, 456), and thereafter on showing that the proceedings were in conflict with said act of 1905 the petition was dismissed for want of jurisdiction, the act of 1885, though repealed by the act of 1905, must be treated under §248 Burns 190S, §248 R. S. 1881, as still remaining in force for the purpose of sustaining the enforcement of liability for services rendered by such commissioners and employes, p. 478.</p> <p>3. Drains.—Proceedings to Establish.—Repeal of Statute.—Dismissal of Proceedings.—Recovery of Costs.—The rule that costs are given or withheld by statute, and the right to recover costs not already reduced to judgment must cease with the ex-tinguishment of the right of action to which they are incident applies only to parties to the action, but does not apply to commissioners and their assistants, who were not parties to the record in a drainage proceeding which was dismissed because of the repeal of the statute under which the proceeding was started, p. 478.</p> <p>4. Contracts.'—Violation of Statute.—Void.—A contract in violation of a statute prohibiting the doing of the thing contracted for is void. p. 479.</p> <p>5. Drains.—Proceedings to Establish.—-Action for Services by Commissioners and Assistants.—Pleading.—Sufficiency.—The petitions of drainage commissioners and their assistants, in which they seek allowances for services rendered in laying out a drain, both before and after the repeal of the statute under which the drainage proceeding was started, and the enactment of §6162 Burns 1908, Acts 1905 p. 447, imposing a penalty for locating or laying out drains such as the one laid out by them, are sufficient where no motion was filed to require the specific dates of the rendition of the services to be set forth therein, p. 480.</p> <p>6. Drains.—Petition to Establish.—Affecting Laloes of More Phan Ten Acres Area.—-Where a drainage petition states that the proposed drain will affect lakes therein named, but does not state the area of such lakes, the court cannot say that the petition on the face thereof sought to affect lakes with an area of over ten acres, p. 480.</p> <p>7. Drains.—Proceedings to Establish.—Petition.—Affecting Laloes. —Repeal of Statute.—Recovery for Services.—Where a drainage petition was sufficient to put the drainage commissioners on inquiry as to the size of certain lakes to be affected by the proposed drain, they can not recover for services rendered after the statute under which the petition was filed had been repealed and the establishment of drains affecting lakes of more than ten acres area was rendered unlawful, except for such services as were rendered in good faith in ascertaining the area of the lakes, p. 480.</p> <p>8. Drains.—Dismissal of Petition to Establish.—Proceeding to Ascertain Allowances of Commissioners.—Title.—Where after the dismissal of a drainage petition the drainage commissioners and their assistants sought an adjudication of the amounts due them for their services theretofore rendered in viewing and laying out the drain, the institution of their proceedings under the title of the original petition for drainage was correct p. 480.</p> <p>9. Pleadinq.—Motion to Strilce Out.—Demurrer.—A motion to strike out cannot perform the office of a demurrer for want of facts, and it is error to strike out a pleading based on the insufficiency of facts therein alleged, p. 481.</p> <p>10. Drains.—Parties to Proceeding to Ascertain Valioe of Services Rendered in Viemng and Laying out.—Swreties on Bond of Petitioners.—Where drainage commissioners and their assistants are seeking an adjudication in accordance with §5644 Burns 1901, Acts 1885 p. 129, of the value of their services in viewing and laying out a drain, the sureties on the bond of the petitioners for such drain are proper parties defendant, p. 481.</p> <p>11. Drains.—Proceedings to Establish.—Repeal of Statute.—Effect.—Liability for Expense of Viemng and Laying out Drain.— Where a drainage proceeding was commenced under the act of 1885 (§5622 et seq. Burns 1901, Acts 1885 p. 129), the fact that the act was repealed before the drain was established so that there could be no right to demand that the sums due to the commissioners and their assistants for viewing and laying out the drain, when ascertained and fixed by the court, should be advanced from the county treasury as provided by §5644 Burns 1901, §11 Acts 1885 p. 129, does not affect' the liability of the petitioners for the drain for the necessary expenses incurred under their petition, p. 481.</p> <p>12. Appeal.—Final Judgment.—Where the petition of drainage commissioners and their assistants for allowances were stricken out on motion and the court adjudged that they take nothing by their petitions and that defendants recover costs, the judgment was a final judgment from which an appeal is authorized, p. 4S2.</p>

<p>1. Statutes.—Construction.—Legislative Intent.—In ascertaining the intent of an act, courts will look to the letter thereof, to the mischief aimed at, to other statutes, and to the common law. p. 489.</p> <p>2. Statutes.—Reenactment.—Construction.—Adoption of Construction.—Where a statute has been construed by the courts, and is thereafter substantially regnacted, the legislature thereby adopts such construction, unless the contrary is clearly shown by the language of the act. p. 489.</p> <p>3. Statutes.—Construction.—Statute Adopted from Foreign State. —Where a statute is adopted from a foreign state, the construction thereof by the courts of such state is followed, p. 490.</p> <p>4. Embezzlement. — nature of Offense. — Embezzlement is the fraudulent conversion of property, either actual or constructive, by a person to whom it has been entrusted, p. 490.</p> <p>5. Statutes. — Reenactment.—Construction.-—Embezzlement Statute.—Where a decision has not been overruled in which the court in construing the act of March 5, 1883 (§2021 Burns 1901, Acts 1883 p. 106), reached the conclusion that it affirmatively required that a county treasurer, at the expiration of his term of office, pay over to his successor all money remaining in his hands, which was received by him in his official capacity, no matter to whom it may belong, and that it made such officer failing to do so guilty of embezzlement, and that it made the successor guilty of a like offense for failure or refusal, when called upon to do so, to pay to the persons entitled thereto the funds received from his predecessor, the construction was adopted in the reenactment of such statute (§2284 Burns 1908, Acts 1905 p. 584). p. 491.</p> <p>6. Statutes.—Construction.—Ambiguous Statute.—Where a statute is ambiguous, it will, if possible, be given such construction as will prevent absurdity or injustice, p.492.</p> <p>7. Embezzlement—Failure of County Treasurer to Pay Over Money Received from Predecessor. — Demand.—Statute.—Construction.—The phrase “when called on to do so” as used in §2284 Burns 1908, §391 Acts 1905 p. 584, is the equivalent of the requirement of a demand, and a county treasurer could not be guilty of embezzlement for failure to pay the funds received from</p> <p>. his predecessor to the persons entitled thereto until after proper demand, pp. 492,494.</p> <p>8. Embezzlement.—Failure of County Treasurer to Pay Over Public Funds to Successor. — Demand. — Statute. — Construction. — Where a county treasurer feloniously fails to turn over to his successor public funds to which the successor is entitled, such failure constitutes embezzlement under §2284 Burns 1908, §391 Acts 1905 p. 584, without a demand by his successor, since the statute makes it his duty to pay them at a particular time to a particular person, and fixes a penalty for his failure so to do. pp. 492, 494.</p> <p>9. Conversion.—Refusal to Deliver on Demand.—A refusal to deliver on demand is not a conversion, but only evidence thereof, p. 495.</p> <p>10. Conversion.—Demand.—Acts Constituting Conversion Without Demand.—Where no time is fixed for the delivery of property, a demand is necessary to terminate a lawful possession thereof, but where the time of delivery and the person to whom the delivery shall be made are fixed by statute, the retention of the property after such time amounts to a conversion thereof, and no demand is necessary, p.496.</p> <p>11. Embezzlement.—Indictment.—Sufficiency.—Where, in a prosecution for embezzlement, there was no necessity for proof of a demand, the indictment was sufficient without an averment that a demand had been made. pp. 497,499.</p> <p>12. Statute. — Conflict.—Control.—Conflict in Sections of Same Act.—.In case of conflict in statutes the later will control, and where two sections of a statute have been enacted for the first time, the latter of the two, by reason of its position in the act, would control in case of irreconcilable conflict, p. 498.</p> <p>13. Embezzlement. — Indictment. — Necessary Avennents.—It is necessary in charging embezzlement, to aver the felonious conversion of the property of another and to negative ownership in the person charged with the offense, p.499.</p> <p>14. Embezzlement.—Indictment.—Embezzlement by County Treasurer.—Averment as to Ownership of Money.—Sufficiency.—An indictment, charging a county treasurer with embezzlement for failing to turn over to his successor public money in his possession, which averred that “said sum of money had come into the hands of” the accused “as such treasurer, by virtue of his said office of treasurer,” and which money he, “at the time of the expiration of his term of office then and there had in his hands as such treasurer of said county,” excluded the theory that the defendant might have been the owner of the money, and was a sufficient averment of the ownership without specifically describing the funds and the several owners thereof, pp. 499, 501.</p> <p>15. Criminal Law.—Indictment.—Certainty.—No greater certainty is required in an indictment than that it should be sufficiently certain to inform the court and jury of what they are to try, and the defendant of the character of the proof to be brought against him, and to bar another prosecution for the same offense, p. 501.</p> <p>16. Constitutional Law. — Imprisonment for Debt. — Embezzlement.—Statutes.—Construction.—Section 2284 Burns 1908, §391 Acts 1905 p. 584, making a treasurer guilty of embezzlement who fails to turn over to his successor public funds to which the successor is entitled, must be construed as if such failure were therein expressly characterized as felonious and fraudulent, and when so construed it is not in conflict with Constitution, article 1, §22, which prohibits imprisonment for debt except in case of fraud, p. 502.</p> <p>17. Statutes.—Criminal Statute.—Repeal by Implication.—A criminal statute is held to be repealed by implication only when the new statute covers the whole subject-matter of the old, adds new offenses and prescribes different penalties, p. 503.</p> <p>18. Statutes.—Repeal by Implication.—Embezzlement Statute.—i Depository Act.—The depository act of 1907 (§7522 et seq. Burns 1908, Acts 1907 p. 391) does not repeal §2284 Burns 1908, §391 Acts 1005 p. 584. p. 503.</p>

<p>1. Bills and Notes.—Consideration.—Note Bxecuted for Medical Services of Unlicensed Practitioner.—Unenforceable.—Where a note is executed to one not licensed to practice medicine in this State as provided by §8410 Burns 1908, Acts 1897 p. 255, for medical services to be performed by him, the consideration is illegal and the note is not enforceable in his hands, p. 519.</p> <p>2. Bills and Notes.—Illegal Consideration.—Innocent Holder.—A note executed to an unlicensed practitioner for medical services to be rendered by bim is not void in tbe hands of an innocent holder who purchased it for value before maturity, p. 519.</p> <p>3. Bills and Notes.—Duty of Purchaser.—Sale Under Suspicious Circumstances.—Persons dealing in commercial paper are required to use reasonable diligence where the paper is offered for sale under circumstances calculated to- excite the suspicion of a reasonably cautious person, p. 519.</p> <p>4. Bills and Notes.—Innocent Holder.—Failure to Inquire Into Suspicious Circumstances.—A purchaser of a note who refrains from making inquiry, lest he should thereby become acquainted with the transaction out of which it originated, is not a holder in good faith without notice, p. 519.</p> <p>5. Bills and Notes. — Consideration. — Bona Fides Purchase. — Burden.—-Where the illegality of the consideration of a note is shown, the burden is on the holder to show that it was purchased in good faith, without notice, p. 520.</p> <p>6. Bills and Notes.—Bona Fide Purchaser.—Evidence.—In an action by a bank against the maker on a promissory note which it purchased from the payee before maturity, where the evidence showed that the officers of the bank at the time of purchasing the note knew or believed that the payee was a Chicago eye specialist, that the bank had handled a number of notes for him, some of which the officers knew had been given by persons for spectacles and for fitting eyes, that the officers of the bank did not know him to have any profession or business in Huntington county, other than that of an eye specialist, and no facts were disclosed by the evidence that would have warranted him in practicing in Huntington county, even if licensed to practice in Chicago, and the note on its face showed that the maker’s post office address was in Huntington county, plaintiff was, in the exercise of ordinary care, under the legal duty to inquire into- the consideration of the note, and no inquiry having been made-, a verdict for defendant will not be disturbed, pp. 520, 523.</p> <p>7. Bills and Notes.—Note Executed to Unlicensed Physician.— Defense.-—Evidence.—Prima Fade Case.—In an action by the holder on a promissory note purchased before maturity, and which was alleged by defendant, who resided in Huntington county, to have been executed for medical services rendered by an unlicensed physician, where the evidence introduced by defendant showed that the payee had no license to practice in Huntington county, and that he was a resident of Chicago, Illinois, it was sufficient to- prove, prima fade, the allegation that the payee of the note was unlicensed, p. 523.</p> <p>8. Appeal.—Harmless Error.—Verdict.—-Where it appears that error committed by the trial court could not have affected the verdict, the judgment will not be reversed, p.523.</p>

Prom the Putnam Circuit Court. James M. Rawley, Judge. Action by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company against Alvah B. Smith, to condemn land for right of way. Prom a judgment awarding damages, the plaintiff appeals.

<p>1. Constitutional Law.—Statutes.—Construction.—Where a statute is susceptible of two constructions, one of which will render it invalid, the construction which will so limit its application as to render it valid will be adopted, on the theory that the legislature intended to enact a constitutional law, and that the courts will not declare an act invalid if there is any doubt about it. pp. 556, 558.</p> <p>2. Constitutional Law.—Statute.—Automatic Bell Ringers.—Police Power.—Extraterritorial Effect.—The act of March 8, 1909 (Acts 1909 p. 441), requiring all railroad companies operating within the State to equip locomotive engines with automatic bell ringers, does not have an extraterritorial effect, but is a police regulation restricted to this State, p. 557.</p> <p>3. Constitutional Law.—Penal Statute.—Construction.—The rule of strict construction of penal statutes does not apply in all its strictness in the consideration of the constitutionality of a statute, but in such case a broad latitude is indulged in favor of the lawmaking power, p. 557.</p> <p>4. Railroads.—Regulation.—Ringing Bell.—Statutes.—Rejection of Surplusage.—The Act-of March 8, 1909 (Acts 1909 p. 441), requiring all railroad companies operating within the State properly to equip locomotive engines with efficient automatic devices for ringing the bell, and that such devices shall at all times be kept in proper working order, is not void for indefiniteness and uncertainty because of the use of the words “proper,” “efficient” and “properly,” since the purpose of the statute is to accomplish the automatic ringing of the bell, and the words “proper,” “efficient” and “properly” may be properly eliminated as redundant and surplusage in the construction of the statute without in any way affecting it. pp. 558, 560.</p> <p>5. Statutes.—Construction.—Surplusage.—The rule that unnecessary words may be rejected from a statute, if required to support its validity, applies to penal as well as to civil statutes, p. 559.</p> <p>6. Statutes.—Construction.—Consideration as a Whole.—In the construction of a statute all its parts should be looked to and its entire import should be considered, p. 560.</p> <p>7. Words and Phrases.—“Proper.”—“Properly.”—“Efficient.”— The words “proper,” “properly,” or “efficient,” are not necessarily relative terms, but may in some connections be definite and specific terms when used in connection with a definite subject-matter. p. 560.</p> <p>8. Railroads.—Regulation.—Automatic Bell Rmger.—Statute.—iIndefiniteness.—“Properly” equipped with an “efficient” automatic device kept in “proper working order,” as applied to the subject of bells on locomotives in the act of March 8, 1909 (Acts 1909 p. 441), are not indefinite, and they mean a device adapted to the accomplishment of the purpose of ringing such bells automatically. p. 561.</p> <p>9. Words and Phrases.—'“Automatically.”—“Automatically,” when applied to a mechanical device, means acting without the continued application of human agency or volition, that is, as opposed to acting rationally or volitionally. p. 561.</p> <p>10. Railroads.—Regulation.—Automatic Bell Ringer.—Statutes.—1 The act of March 2, 1911 (Acts 1911 p. 132), amending the act of March 8, 1909 (Acts 1909 p. 441), while being specific as to the character of device which must be used for automatically ringing the bell of a locomotive engine, is not more specific than the act which it amended as to the requirements to be met, the offense under either act being a failure to equip with an automatic bell ringing device, p. 561.</p> <p>11. Railroads.—Regulation.—Automatic Bell Ringer.—Failure to Fquip.—Prosecution.—Sufficiency of Affidavit.—An affidavit in a prosecution against a railroad company for failing to equip its locomotive with an automatic bell ringing device as required by the act of March 8, 1909 (Acts 1909 p. 441), is not insufficient for failing to allege that the locomotive was equipped with a bell so as to permit a second prosecution for the same offense under §§5431, 5432 Burns 1908, §§4020, 4021 R. 8. 1881, since if there was no bell on the locomotive no automatic ringing device could be there, and the act of 1909 is supplemental to §5431 requiring a bell to be attached to each locomotive, p. 562.</p> <p>12. Criminal Law.—Judicial Knowledge.—Mechanical Facts.— Automatic Bell Ringer.-—The Supreme Court knows that automatic bell ringing devices are employed on locomotives, and that many automatic devices for ringing bells are in use in other situations, p. 562.</p> <p>13. Criminal Law. — Judicial Knowledge. — Mechanical Facts.— The court takes judicial, notice that, any mechanical device may and will, if not looked after, get out of order from use, wear and age, and become inefficient for the purposes of its construction, but the court also knows that it may be repaired and kept in such order as will accomplish its design, it being presumed that regular and ordinary means are adopted for a given end. p. 563.</p> <p>14. Criminal Law.—Presumptions.—Performance of Public Duty. —It will be presumed that a public duty can and will be performed. p. 563.</p> <p>15. Railroads. — Regulation.—Bells on Locomotives.—Inspection and Efficiency.—Duty.—The requirement for bells on locomotives, and their ringing, is a police regulation, and the duty to inspect and use ordinary care in keeping them efficient is a continuing one. p. 563.</p> <p>16. Railroads.—•Regulation. — Statute.—Surplusage.—The words “at all times,” in the act of March 8, 1909 (Acts 1909 p. 441), requiring railroad locomotives to be properly equipped with automatic bell ringing devices and that such devices be “at all times” kept in proper working order, are surplusage, since without them the statute requires the use of automatic bells on locomotives when in use, and in case of accident or other intervention rendering the ringing of the bell impossible it would be a question for the jury as to whether it is excusable under the particular circumstances, p. 563.</p>

<p>1. Statutes.—Local and Special Laws.—Judges.—Election.—The act of March 2, 1911 (Acts 1911 p. 139), changing and fixing the time for the election of probate, juvenile and superior .court judges therein designated, and fixing their terms of office, is not in conflict with article 4, §§22, 23, of the state Constitution forbidding local and special legislation “regulating the election of county and township officers, and their compensation.” p. 568.</p> <p>2. Statutes.—Local and Special Laws.—Act Fixing Time of Electing Judges Therein Designated.—Application.—Judicial Knowledge.—The act of March 2, 1911 (Acts 1911 p. 139), changing and fixing the time for the election of judges therein designated, is not a local or special law, but is of as general application as if it had provided generally that it should apply to all such judges throughout the state, since the court knows judicially that the act names all the judges of all the courts of the classes affected existent in the state at the time of its passage, p. 569.</p> <p>3. Statutes.—Local and Special Laws.—Act Fixing Time of Electing Judges Therein. Designated.—Judge Shelby Superior Court.— The act of March 2, 1911 (Acts 1911 p. 139), fixing the time for the election of judges therein designated, is not a local or special law because it fails to name the judge of the Shelby Superior Court, since it does name “all judges of the superior court of Marion County,” and this includes the judge whose duty it is to preside over the Shelby Superior Court as provided for in the act of March 1, 1911 (Acts 1911 p. 103), creating the superior court district of Marion and Shelby counties, and which has been construed as simply an enlargement of the territorial jurisdiction of Boom 5 of the Marion Superior Court and as imposing on the judge of Boom 5 the duty of holding court in Shelby as well as in Marion county during the remainder of his term, after which the judge should be elected by the voters of both counties, p. 569.</p> <p>4. Statutes.—Act Creating Shelby Superior Court.—Election of Judge.—Statute Construed.—The provision in the act of March 1, 1911 (Acts 1911 p. 103), creating the superior court district of Marion and Shelby counties, that the judge shall be elected by the voters of the two counties, does not change his status as one of the judges of Marion county, p. 569.</p> <p>5. Statutes.—Local and Special Laws.—Act Fiwing Time for Electing Judges Therein Designated.—Possible Effect of Future Legislation.—-Where an act fixing the time of electing judges therein designated operates generally throughout the state on all the judges of the classes dealt with now existing, it will not be held unconstitutional as being a local or special law, on the bare possibility that the legislature might add others to the class by a later enactment without providing for their election at the same time. p. 570.</p> <p>6. Constitutional Law .-—Legislative Power.—YaUdity of Acts.— The General Assembly is without limitation in its power to enact laws, except those that are placed on it by express provisions of the Constitution or by necessary implications from them, and its act will not be held invalid as being within such inhibition unless such invalidity clearly appears, p. 571.</p> <p>7. Constitutional Law.—Legislative Power.—Elections.—Offices of Legislative Creation.—The Constitution contains no express prohibition of power to postpone the time of holding an election to fill an office of legislative creation, and no such prohibition is implied, p. 571.</p> <p>8. Constitutional Law.—Legislative Power.—Election.—Judges. —Statutory Courts.—While article 2, §14, of the Constitution implies that all judges of courts of general and appellate jurisdiction are to be elected at general elections, unless provision is made for an election for such officers only, this provision does not, either alone or in connection with others relative to the question, force the conclusion that the legislature is prohibited from extending the time of electing judges of statutory courts from one biennial general election to the next ensuing one. p. 573.</p> <p>9. Constitutional Law.—Statutes.—Act Fixing Time for Meeting Judges Therein Designated,.—Extension of Terms Beyond Four Years.—The act of March 2, 1911 (Acts 1911 p. 139), fixing the time for electing judges therein named and fixing their terms of office, though resulting in the incumbents holding longer than four years, is not unconstitutional as being in conflict with article 15, §2, since the court cannot say that the act was passed for the purpose of adding two years to the terms of those judges whose terms of four years will expire after the general election in 1912 and before the next biennial election, and there is in the Constitution no denial of power in the legislature to postpone elections and readjust the commencement of the terms of offices, particularly of legislative creation, where the object is to regulate the time of holding elections and not merely to extend the terms of incumbents, and, if under said act the incumbent judges are enabled to hold for longer than four years, the right to hold over comes from the- Constitution, article 15, §3, and not from the act. pp. 574, 576.</p> <p>10. Constitutional Law.—Statute.—Extending Term of Office.— Legislative Intent.—An act of the legislature clearly intended to extend the terms of present incumbents in office would be violative of the Constitution, article 15, §2. p. 576.</p> <p>11. Constitutional Law.—Legislative Power.—Possible Abuse of Power.—Presumption.—The legislature is presumed to exercise its power in good faith, and its act will not be held unconstitutional for the purpose of preventing a possible misuse of power by it p. 577.</p>

From Delaware Circuit Court; J. G. Leffler, Judge. Action by People’s Trust Company as administrator of the estate of Jonathan M. Brinsen, deceased, against the Metropolitan Life Insurance Company. From a judgment for plaintiff, the defendant appeals. (Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Howard Circuit Court; J. F. Elliott, Judge.</p> <p>Action by David E. Downey against the Indiana Union Traction Company. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)</p>

<p>1. Bail.—Right to.—Under the provisions of the Oonstitntion, article 1, §17, and of §2025 Burns 1908, Acts 1905 p. 584, one charged with murder is entitled to bail as a matter of right upon proper showing, p. 590.</p> <p>2. Bail. — Application.—Presumptions.—Burden.—On application for bail by one charged with murder, the indictment stands with all its presumptions in favor of its truth until its force is broken by a showing that the grand jury acted on insufficient evidence, and the burden is on the accused to show that the proof of guilt is not evident and the presumption of guilt not strong, p. 590.</p> <p>3. Bail.—Application.—Appeal.—Evidence.—On appeal in proceedings to be let to bail the Supreme Court will weigh the evidence and pass on it as a trial court, p. 590.</p> <p>4. Bail.—Application.-—Evidence.—Witnesses.—On application to be let to bail, the rule is that the applicant must introduce the evidence of witnesses indicated by the indictment, and also of such witnesses as the State indicates that it relies on, and he is not precluded from introducing the testimony of any other witnesses. p. 592.</p>

<p>1. Appeal.—Record.—Necessity of Bill of Exceptions.—Counter-affidavits tendered by the plaintiff in opposition to defendant’s affidavit of nonresidence and motion for cost bond, which the court refused to receive, but ordered to be “filed by the clerk of said court, and to be made a part of the record in this cause,” are properly in the record on appeal without a bill of exceptions, under §663 Burns 1908, §3 Acts 1903 p. 338. p. 596.</p> <p>2. Statutes.—Construction.—In Bari Materia.—Section 616 Burns 1908, §589 R. S. 1881, providing for the filing of cost bonds by nonresident plaintiffs, and §7347 Burns 1908, Acts 1895 p. 319, making it the duty of clerks to ascertain if parties demanding to file pleadings are residents of Indiana, are in pari materia and should be construed together, p. 596.</p> <p>3. Costs.—Security.—Rearing and Determination of Motion.—Affidavits.—Case Overruled.—Under §§616, 7347 Burns 1908, §589 R. S. 1881, Acts 1895 p. 319, the question of plaintiff’s nonresidence, raised by defendant’s affidavit in support of his motion for cost bond, is a question of fact, and counter-affidavits thereto are admissible, and the case of Smith v. Chandler (1859), 13 Ind. 513, in so far as it holds a contrary doctrine is overruled, p. 599.</p>

<p>Prom Howard Superior Court; J. F. Elliott, Judge.</p> <p>Action by Omer Downey against the Indiana Union Traction Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)</p>

<p>Prom Jackson Circuit Court; Joseph PL. Shea, Judge.</p> <p>Action by William Goecker against Jerry MeOsker. Prom a judgment for defendant, tbe plaintiff appeals.</p>

<p>1. Criminal Law. — Appeal. — Review.—Verdict.—Weight of Evidence.—Conflicting evidence will not be weighed on appeal to determine whether the verdict of the jury, or finding of the court, is sustained by a preponderance thereof, but there must be some evidence to prove every essential element of the offense charged, otherwise the verdict or finding will not be sustained by the evidence and will be treated as contrary to law. p. 622.</p> <p>2. Municipal Corporations.—Streets.—Use for Travel.—Automobiles and Bicycles.—Drivers of automobiles and bicycles have equal rights upon the streets and equal rights in the use thereof with drivers of other vehicles, and each owes the duty of exercising due care not to injure others lawfully using the public streets and highways, p. 623.</p> <p>3. Municipal Corporations.—Streets.—Use for Travel.—Automobiles and Bicycles.—Duty of Drivers.-—Degree of Care.—While drivers of automobiles and bicycles are each required to exercise ordinary care to avoid injury to others upon the streets, the full discharge of the duty requires more from the former than it does from those using bicycles, p. 623.</p> <p>4. Assault and Battery.—Elements.—Definition.—Assault is an inchoate violence to the person of another, with the present means of carrying the intent into effect; while battery is the carrying out of the intent by the actual infliction of the injury, p. 624.</p> <p>5. Assault and Battery.—Acts Constituting.-—-Intent.—Automobile Collisions.—An assault and battery may be committed on one riding on a bicycle by another driving an automobile, by the unlawful touching in collision, for the force need not be direct, but intent on the part of the person charged is an essential element of the offense and must be shown to make the touching criminally unlawful, pp. 624, 625.</p> <p>6. Homicide.—Manslaughter.—Automobile Collisions.—A driver of an automobile causing a collision which results in death may be convicted of manslaughter, if the collision was caused directly by such gross carelessness as to imply an indifference to consequences, or by the commission of an unlawful act. p. 024.</p> <p>7. Assault and Battery.—Intent.—Inference.—Automobile Collisions.—Intent by an automobile driver to injure another by causing a collision may not be implied from a lack of ordinary care, but may be inferred from intentional acts, where the Injury was the direct result of them, done under circumstances showing a reckless disregard for the safety of others, and the willingness to inflict the injury, or the commission of an unlawful act which leads directly and naturally to the injury, p. 625.</p> <p>8. Assault and Battery.—negligence.—Wilful Injury.—Responsibility.—There may be a civil liability for damages for both ordinary negligence and wilful injury, but there can be criminal responsibility for the latter only. p. 626.</p> <p>9. Assault and Battery.—Au,tomobile Collisions.—Intent.—Evidence.—Sufficiency.—Where, in a prosecution for assault and battery against a driver of an automobile who collided with the rider of a bicycle, it was shown that both were proceeding along a street in the same direction with but little difference in the speed at which they were traveling, that on approaching a street-ear that had stopped to let off passengers, they both proceeded in the usual way to pass to the left of the car, that defendant proceeded to pass to the left of the bicycle rider, leaving a margin of five feet between the automobile and the street-car for the bicj'clist’s use, that in this position they proceeded in parallel lines, from which defendant did not deviate up to the instant of collision, that on seeing an approaching street-car the bicyclist turned his bicycle to the left when he was struck by the defendant’s automobile, the evidence was insufficient to warrant the inference that the defendant intended to inflict the injury, p. 627.</p> <p>10. Assault and Battery.--Automobile Collision.—Violating Speed Late.—The mere fact that at the time of a collision the driver of an automobile was violating the provisions of the speed law (§10464 Burns 1908, Acts 1905 p. 202) does not render him guilty of assault and battery, where the evidence shows that the injury was not caused by reason of the excessive speed, p. 628.</p>

From Dearborn Circuit Court; George F. Downey, Judge. Suit by Roger W. Lowe and another against the City of Lawrenceburg and another. From a judgment for defendants, the plaintiffs appeal.

<p>1. Evidence.—Admissions.—Admission of Agent.—Declarations of an agent, made while in the performance of his agency, showing his intention and his mental state in regard to the manner of performing the duties of his agency, are admissible against his principal, p. 636.</p> <p>2. Witnesses.— Impeachment.— Collatei’al Matters.— The admission in evidence of statements made by defendant’s agent as to collateral matters, for the purpose of impeachment, was not erroneous, where they were immediately and properly connected with the main subject of the inquiry, p. 637.</p> <p>3. Appeal.—Review.—Harmless Error.—Admi sion of Evidence.— The erroneous admission of evidence, if harmless, is not cause for reversal, p. 638.</p> <p>4. Trial.—Reception of Evidence.—Order of Proof.-—Rebuttal.—■ Discretion of Court.—It is within the discretion of the trial court to admit in rebuttal evidence that should have been given in chief, and such action of the court does not constitute reversible error unless it is shown that the court abused its discretion, p, 638.</p> <p>5. Appeal.—Briefs.—Sufficiency.—Error Waived.—Where appellant alleged error by the trial court in permitting a page of a work on veterinary surgery to be introduced in evidence as a part of the cross-examination of an expert witness, but did not set out in his brief that part of the cross-examination of the witness, nor the substance thereof, in regard to the extract from the work on veterinary surgery, and did not set out the extract read to the jury as required by rule twenty-two of the Supreme Court, the determination of said question is waived, p. 639.</p> <p>6. Appeal.—Failure to Object- in Lower Court.—Admission of Evidence.-—Where no objection as to the admissibility of evidence was made to the trial court, objection to such evidence on appeal is unavailing, p. 640.</p> <p>7. Trial.—-Instructions.—-Construed Together. — If instructions, when read and construed together, fairly present the law to the jury, the cause will not be reversed because a particular instruction when standing alone may be an inaccurate or erroneous statement of the law. p. 640.</p> <p>8. Trial.—Instructions.—Incomplete.—Construed With Other Instructions.—The giving of an instruction requested by appellee, which was not complete and did not refer to appellant’s answer, was harmless, where it is evident that when read and considered in connection with all the other instructions given, it could not have misled the jury. p. 640.</p> <p>9. Appeal. — Briefs. — Contents. — Instructions.—Error Waived.—■ Where neither an instruction nor its substance is set out in appellant’s brief, any objection urged against it is thereby waived, p. 641.</p> <p>10. Bills and Notes.—Bona Fide Purchaser.—Defenses.—Instructions.-—Where defendant signed and delivered a blank check to C, who filled in the blanks and delivered it to plaintiff in payment for a horse, the consideration for the check as between plaintiff and defendant was the sale of the horse by plaintiff to C, and not the sale of the horse by O to defendant, and instructions given were not erroneous on the ground that they failed to take into consideration the defendant’s defense that he purchased the horse from 0 who was to deliver it sound, pp. 641, 642.</p> <p>11. Bills and Notes.—Bona Fide Purchasers.—Checks.—Signing m Blank.—One who signs a note or check in blank and delivers it to another thereby clothes the holder with implied authority to fill the blanks, and even if the blanks are filled in violation of the express understanding of the parties, he will be liable to an innocent holder, p. 642.</p> <p>12. Trial. — Instructions. — Application to Evidence. — Where defendant signed and delivered a blank check to O, who filled in the blanks and delivered it to plaintiff in payment for a horse, an instruction as to the rights of the parties to the action if the blank check was a loan made by defendant to O, although it was not applicable to the evidence, was harmless, p. 642.</p> <p>13. Principal and Agent.—Liability of Principal.—Execution of Negotiable Instruments.—As a general rule a principal is not liable on a negotiable instrument signed by the agent in his individual name. p. 643.</p> <p>14. Appeal.—Harmless Error.—Evidence.—Instructions.—Error in admitting evidence and in giving instructions which affected plaintiff’s right to recover on the first and third paragraphs of complaint, was harmless, where plaintiff recovered on the second paragraph which was unaffected thereby, p. 644.</p>

<p>1. Appeal.—Harmless Error.—Demurrer.—Repetition of Answers. —It is not error to sustain a demurrer to a paragraph of answer which amounts to a repetition of an answer already in. p. 656.</p> <p>2. Estoppel.—Pollution of Strewn.—Actions.—Defenses.—In an action against a manufacturing company for damages caused by discharging into a stream large quantities of water, sand and other substances which rendered the water unfit for use and caused the stream to overflow plaintiff’s land, thereby rendering it unfit for cultivation, answers in estoppel on the ground that plaintiff knew the manner in which the factory was to be operated and that without objection he stood by and permitted the company, during a period of years, to expend large sums of money in perfecting its plant, are insufficient, since the effect on the stream produced by the operation of the plant was known to the defendant equally as well as to the plaintiff, and where the knowledge or means of knowledge are equal in each party there can be no estoppel, p. 656.</p> <p>3. Injunction.—Laches.—A%>plication of Doctrine:—There is a marked distinction between the laches which would prevent injunctive relief against a long continued condition accompanied by large expenditures of money, which might have been obtained in the early stages, and damages for the injuries arising from the conditions, p. 656.</p> <p>4. Waters and Watercourses.—Pollution.—Actions.—Defenses.— In an action against a manufacturing company for damages caused by discharging large quantities of water, sand and other substances into a stream, thereby rendering the water unfit for use and causing the stream to overflow the plaintiff’s land, the fact that the acts of the defendant were necessary in the conduct of its business is no defense, pp. 657, 658.</p> <p>5. Waters and Watercourses.—Diversion of Stream.—Rights of Upper Proprietor.—Reasonable Use.—Temporary diversion or detention of the waters of a stream by an upper proprietor to ordinary or reasonable use, or a use consistent with the character of the stream itself, even though it inconveniences oi* injures another, is a very different thing from obstructing a stream to the extent of filling it up by foreign importations, or rendering its waters unfit for the use of lower proprietors, and what is an ordinary or reasonable use is a question of fact, and it is incumbent on Mm, who claims an unreasonable use, to make it appear. p. 657.</p>

<p>1. Mobtgages.—Assumption.—Suretyship.■—Where by the terms of a deed the grantee assumes the payment of a mortgage on the land, the law fixes the relation of personal suretyship as between the grantor and grantee, and it is not necessary that it be otherwise declared or adjudicated in order that a suit may be maintained by the grantor against the grantee on the agreement of assumption, where other rights have not become involved, p. 662.</p> <p>2. Principal and Subety.—Adjudication of Relation.—Independent Action.—The adjudication of the relation of suretyship need nob be had in the original action on the contract, but may be declared when necessary in an independent action, although when the relation of surety is not disclosed, and rights are sought to be grounded on the relation which may affect equities, the relation should properly be declared in the original action, p. 662.</p> <p>3. Mortgages. — Assumption.—Reimbursement of Grantor.—Complaint.—Sufficiency.—In an action by a grantor against a grantee who had assumed the payment of a mortgage, for reimbursement for a deficiency paid on foreclosure of the mortgage, where a paragraph of the complaint alleged a conveyance by plaintiff to the defendant subject to a mortgage of $1,200, which was then</p> <p>“ existing on the land, and another paragraph alleged the conveyance by plaintiff to defendant subject to the mortgage, that it was a mortgage executed to A on a specified date for $1,200, and that A on a specified date sold and assigned the notes and mortgage to P, who brought the foreclosure suit which resulted in a judgment against the plaintiff, a copy of the deed being attached to each paragraph, the complaint was, in the absence of a motion to make the identity of the mortgage more specific, good as to each paragraph, p. 664.</p> <p>4. Mortgages. — Assumption. — Reimbursem ent of Grantor. — Evidence.—Sufficiency.—In an action by a grantor against his grantee for reimbursement for a deficiency paid on foreclosure of a mortgage, of which the grantee had assumed the payment, where the deed, the mortgage and assignment, the judgment of foreclosure, the decree and return of the sheriff showing a deficit, the execution against plaintiff and the return showing payment by him, \vere in evidence, supplemented by the evidence of the plaintiff identifying the mortgage debt which he paid as the one agreed to be paid by defendant, the evidence was sufficient to identify the debt. p. 664.</p> <p>5. Mortgages. — Assumption. — Reimbursement of Grantor. — Demand.—Where a grantor was compelled to pay a deficiency on the foreclosure of a mortgage which the defendant had assumed to pay as a part of the purchase price of the land, no demand by the grantor was necessary before bringing an action against the grantee for reimbursement, since the latter was bound to take notice that the mortgage debt became due at a fixed time. p. 665.</p>

From Orange Circuit Court; Jonas G. Howard, Special Judge. Eemonstrance by Eoscoe Atkinson and others against the traffic in intoxicating liquors. Prom a judgment for Albert C. Disher and others, applicants for license, the remonstrators appeal.

From Jay Circuit Court; Joseph G. Leffler, Judge. Action by the State of Indiana, on the relation of the Redkey Tile, Brick and Building Block Company, against Frank Rowles and others. From a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Rape.—Elements of Crime.—A charge Of rape necessarily includes a charge of assault and battery for that purpose, p. 690.</p> <p>2. Rape.—Affidavit.—8uffi.cieney.—An affidavit charging the commission of rape on a female child under the age of sixteen years, is sufficient to sustain a verdict of guilty of assault and battery with intent to commit rape, without directly charging that the carnal knowledge was forcibly had. p. 691.</p>

Prom Randolph. Circuit Court; John W. Maoy, Judge. Action by Ella Brown against Alva M. Kistleman and another. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)

<p>1. Continuance.—Absence of Witness.—Due Diligence.—Motion.— Sufficiency.—Where it appeared from a motion for a continuance that the cause was set for trial and a witness for defendant was subpoenaed to appear and testify at the trial, that the cause was continued to a later date and after the continuance the witness was instructed and advised by defendant’s attorney that she would be required to appear on the later date without further process, that on the day before the date to which the cause had been continued the defendant became aware for the first time that tlie witness was out of the county and that she would probably not be present at the trial and consequently the continuance was asked, the motion did not show due diligence, and was properly overruled, p. 699.</p> <p>2. Appeal.—Verdict.—Sufficiency of Evidence.—A cause will not be reversed for insufficiency of the evidence to, sustain a verdict for plaintiff if there is some evidence to support each material allegation of the complaint, p. 700.</p>

<p>From Criminal Court of Marion County (38,816) ; Joseph T. Marlcey, Judge.</p> <p>Prosecution by the State of Indiana against Theodora Sousania. From a judgment of conviction, the defendant appeals.</p>

<p>From Knox Circuit Court; Orlando H. CoVb, Judge.</p> <p>Prosecution by the State of Indiana against Albert Beverley. From a judgment of conviction, the defendant appeals.</p>