Volume 178 — Indiana Reports

<p>From Huntington Circuit Court; Samuel L. Morris, Special Judge.</p> <p>Action by Charles Heiney against the School Town of Andrews and others. From a judgment for plaintiff, the defendants appeal.</p>

From Delaware Circuit Court; J oseph G. Leffler, Judge. Action by Phoebe Brown as administratrix of the estate of Samuel J. Brown, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Constitutional Law.—Validity of Statutes.—Right to Object.— Estoppel.—Where the owner of land affected by reclamation work undertaken pursuant to §7202 et seq. Bums 1901, Acts 1905 p. 376, having knowledge of the improvement, stood by until after the completion of the work without raising any objection to the validity of the statute under which the work was done, he is estopped, on collateral attack by injunction, from asserting the unconstitutionality of the statute under which the improvement was made. p. 34.</p>

From Wabash. Circuit Court; A. II. Plummer, Judge. Action by James B. Farr against Deborah Miller and others. From a judgment for plaintiff, the defendant Deborah Miller appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>From Randolph Circuit Court; John W. Macy, Judge.</p> <p>Action by George T. Orr against the Dayton and Muncie Traction Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

Prom Elkhart Circuit Court; James ¡3. Bodge, Judge. Action, by the City of Goshen against David G. Lehman and another. Prom a judgment for the plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

Prom Clinton Cir&uit Court; James Y. Kent, Special Judge. Action by William L. Tomlinson and others against Clel- and C. Campbell and another. Prom a judgment for plaintiffs, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Bills and Notes.—Pleading.—Answer of Eon Est Factum.— Burden of Proof.—In an action against the cosurety on a promissory note, defendant’s verified answer, denying the execution of the note by him, placed the burden on plaintiff to prove by a fair preponderance of the evidence that the signature was that of the defendant, p. 68.</p> <p>2. Appeal.'—Review.—Verdict.—Sufficiency of Evidence.—Where there was some evidence to support an answer denying the execution of a note, a verdict for defendant will not be disturbed, p. 6S.</p> <p>3. Trial.—Argument of Counsel.-—Use of Magnifying Glass by Jury in Examining Signatures.—In an action against a cosurety on a promissory note for contribution, where the execution of the note was denied by defendant, it was not error to permit tbe jury, during tbe argument of counsel, to examine, with a magnifying glass, tbe signatures used in evidence as a basis of comparison. p. 68.</p> <p>4. Trial.—Instructions.—Error Gurecl by Other Instructions.— Tbougb an instruction, taken alone, was erroneous, tbe cause will not be reversed where tbe instructions as a whole correctly and fairly informed tbe jury as to tbe law. p. 68.</p>

Prom Marion Circuit Court; Charles Bemster, Judge. Action by the Indianapolis Mortar and Fuel Company against Thomas J. Markey and Company, and the Aetna Indemnity Company of Hartford, Connecticut. From a .judgment for plaintiff, the defendant Aetna Indemnity Company of Hartford, Connecticut, appeals.

From Clinton Circuit Court; Joseph Combs, Judge. Action by George Bohannon against Oleland C. Campbell and another. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Starke Circuit Court; Francis J. Vurpillatt, Judge. Action by the State of Indiana on the relation of Henry R. Robbins against Lee M. Ransbottom as Auditor of Starke County, Indiana, and others. From a judgment for relator, the defendants appeal.

<p>Prom Superior Court of Marion County (73,693) ; Vinson Carter, Judge.</p> <p>Action by the State of Indiana, on the relation of Joseph H. Shea, against John C. Billheimer, Auditor of the State of Indiana. Prom a judgment for defendant, the relator appeals.</p>

From Cass Circuit Court; John S. Lairy, Judge. Action by James B. Swing, Trustee for the creditors of the Union Mutual Fire Insurance Company of Cincinnati, against Albert D. Toner. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Insurance.—Contracts.—Constriction.—The rule that it is the duty oí courts to ascertain the intention of the parties to a contract, and to give effect thereto, applies to insurance as well as other contracts, but where the intent of an insurance contract is doubtful, a liberal rule of construction obtains in favor of the insured, p. 108.</p> <p>2. Contracts.—Construction.—Words Given OrdAnary Meaning.—■ In construing contracts, words must be given their ordinary meaning, unless a contrary purpose is shown, p. 109.</p> <p>3. Insurance.—Application.—“Consulted—•“Treated.”—“Ailment.” —Where a person stated to a'physician that he was suffering with headache, but asked no questions and received no professional advice, information or instruction, and the physician gave to him a dozen trade tablets to relieve the headache, he did not thereby “consult” the physician, and was not “treated” for an “ailment” within the meaning of a question in an insurance application as to whether he had been treated by or had consulted any physician in regard to personal ailment within the last seven years, p. 109.</p> <p>4. Insueanoe.—Application.—Scope of Questions.—When considered in connection with another question as to whether the applicant has ever had any local disease, personal injury or serious illness, a question in an insurance application, asking the applicant whether he has been treated by or consulted any physician in regard to personal ailment within the last seven years, has reference only to ailments of a substantial nature, and not to a mere temporary functional indisposition, p. 110.</p> <p>5. Insueanoe.—Action on Life Policy.—Inswnity.—Evidence.—Admissibility.—Record of Proceeding Before Justice of the Peace.— In an action on a life insurance policy, where it had already been proven, without controversy, that the decedent was placed in an insane hospital shortly after November 23, 1906, the date on which he was adjudged insane, and that he remained there until his death, the record of the justice of the peace by whom he was adjudged insane, offered in evidence to show that decedent was declared insane on November 23, 1906, was properly excluded, since there was no controversy over that fact and the offer included incompetent matter, p. 112.</p>

Prom Superior Court of Tippecanoe County; H. H. 'Vinton, Judge. Action by tbe Tippecanoe Loan and Trust Company, as administrator of the estate of Patrick McLaughlin, deceased, against the Wabash Railway Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Warrick Circuit Court; Roscoe Kiper, Judge.</p> <p>Action by Kate Lennert against the Supreme Tribe of Ben Hur. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394, Subd. 2, Burns 1908, Acts 1901 p. 565.)</p>

Prom Marion Circuit Court (17,250) ; Gliarles Bemster, Judge. Action by the Indianapolis Mortar and Fuel Company against the American Fidelity Company of Montpelier, Vermont, and another. From a judgment for plaintiff, the defendant American Fidelity Company of Montpelier, Vermont, appeals.

<p>1. Carriers.—Injury to Passengers.—Employe as Passenger.— Where a carrier of passengers employs a person and assigns to him a place of labor some distance from his home, giving him, in addition to his wages, tickets which entitle him to ride to and from his work, he is, while riding on such tickets, a passenger, and the carrier owes him the duty of carrier to passenger, p. 137.</p> <p>2. Trial.—Instructions.—Negligence.—In an action for personal injuries caused by the derailment of an interurban passenger-car, an instruction did not invade the province of the jury, which told the jury that it was the motorman’s duty to keep a diligent lookout ahead along the tracks for the purpose of discovering obstructions on the same, and if there was a failure to discharge such duty, and such failure caused the derailment of the car, defendant was guilty of negligence, p. 138.</p>

<p>1. Master and Servant.—Injury to Employe.—Section Hand on Railroad.-—Right of Recovery.—The right of a section laborer on a railroad to recover for injuries sustained by falling from an over-crowded hand car being operated under the direction of the railroad company’s foreman, must be determined by the common-law relationship of coemployes and not by the employers’ liability act. p. 140.</p> <p>2. Master and Servant.—Injury to Employe.—Complaint.—Allegations.—Duty of Employer.—An. employer’s duty to an employe cannot be implied from mere recital that an act was negligently done, but facts sustaining the existing duty must be specifically alleged, p. 141.</p> <p>3. Master and Servant.—Vice-Principal.—Fettoio Serva/nt.—Section Foreman.—At common law a section foreman while employing and discharging men is a vice-principal, but in directing them, after their employment, he is a fellow servant, p. 141.</p> <p>4. Master and Servant.—Injury to Serva/nt.—Assumption of Bislo. —An employe assumes the risk of all dangers that are open to ordinary observation, or such as are or may be known by the exercise of ordinary care. p. 141.</p>

Prom Superior Court of Marion County (84,382); Roscoe O. Hawkins, Special Judge. Proceedings by tbe Board of Commissioners of tbe County of Marion against James Scanlan to suspend or revoke a license granted to Mm for the sale of intoxicating liquors. Prom a judgment for defendant, the Board of Commissioners appeals.

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by Anna, Leverton against the Workingmen’s Mutual Protective Association of Benton Harbor, Michigan. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>Prom Greene Circuit Court; Charles E. Henderson, Judge.</p> <p>Prosecution by the State of Indiana against Dan Neal. From a' judgment of conviction, the defendant appeals.</p>

From Lake Circuit Court; Willis G. McMahan, Judge. Prosecution by the State of Indiana against Martin H. Carmody and others. From a judgment of conviction, the defendants appeal. (Transferred from the Appellate Court under §1397 Burns 1908, Acts 1901 p. 565.)

<p>1. Appeal.—Determination of Controversy.—Dismissal.—Where, in an action by a property owner to enjoin the performance of a contract for a street improvement, the contract and all proceedings with reference to the contract were rescinded by the city council, pending an appeal from a judgment for defendants, the controversy was thereby terminated, and required a dismissal of the appeal on motion showing such facts, p. 163.</p> <p>2. Appeal.—Dismissal.—Moot Questions.—The Supreme Court will not decide mere moot questions, but will dismiss the appeal when it is made to appear that no actual controversy is involved, p. 163.</p> <p>3. Costs.—Appeal.—Dismissal.—Where, by the action of the appellee, and without any act on the part of appellant, the subject-matter of the litigation is abandoned pending an appeal, so as to render a dismissal of the appeal necessary for the reason that it involves only a moot question, the appeal will be dismissed at the cost of appellee, p. 164.</p>

<p>From Boone Circuit Court; Samuel B. Artman, Judge.</p> <p>Action by Florence R. Phillips against John E._Sullivan. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

Prom Wells Circuit Court; Charles E. Sturgis, Judge. Action by the National Equipment and Supply Company against The Montpelier Light and Water Company. The Citizens Trust Company, by permission, became a party defendant and filed a cross-complaint against the plaintiff and defendant and others. Prom an adverse judgment, cross-complainant appeals.

<p>From Laporte Superior Court; Harry B. Tuthill, Judge.</p> <p>Action by Irwin Jabnke, by Ms nest friend Ferdinand Jabnke, against tbe City of Hammond. From a judgment for plaintiff, the defendant appeals.</p>

From Newton Circuit Court; Charles W. Hanley, Judge. Action by the State of Indiana on the relation of Charles E. Hampton and others against William H. Kessler. From a judgment for relators, the defendant appeals.

Prom Miami Circuit Court; J oseph N. Tilleit, Judge. Action by Benjamin Trippeer and others against John Clifton and others. Prom an adverse'judgment, the plaintiffs appeal. (Transferred from Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Drains.—Proceedings to Improve.—Petition.—Jurisdiction.— Arrest of Judgment.—While proceedings to improve or otherwise change an established drain, brought under §0174 Burns 190S, Acts 1907 p. 50S, §19, must be brought in the court which originally ordered the drain established, the petition need not aver what court made the order establishing it, and the question of jurisdiction is not raised by a motion, in arrest of judgment, where the petition is silent as to what court made such original order, p. 205.</p> <p>2. Drains.—Proceedings to Improve.—Jurisdiction.—Petition.— Ruling on Motion in Arrest of Judgment.—Where a petition for the improvement of a certain main drain and an arm connecting therewith, brought under the provisions of §6174 Burns 1908, Acts 1907 p. 508, §19, was silent as to the name of the court which ordered the main drain established, the court did not err in overruling a motion in arrest of judgment, although the petition showed affirmatively that the arm was established by the board of commissioners, since the jurisdiction over a proceeding concerning the arm of a drain follows the jurisdiction of the main drain, p. 206.</p> <p>3. Pleading.—Character of Pleading.—Test.—The character of a pleading must be tested by the facts averred, rather than by the prayer for relief or the conclusion of the pleader, p. 206.</p> <p>4. Drains.—Proceedings to Improve.—Pleading.—Proceedings to establish ór improve drains being special statutory proceedings, the pleadings jn such cases are not tested strictly by the rules governing ordinary civil actions, p. 207.</p> <p>5. Drains.—Proceedings to Improve.—Jurisdiction.—Remonstrance.—In a proceeding under §6174 Burns 1908, Acts 1907 p. 508, §19, to improve an established drain, remonstrants had a right to question the jurisdiction of the court at the time of filing a remonstrance for other causes, where the defect of jurisdiction did not appear on the face of the petition, and the action of the court in sustaining a demurrer to verified remonstrances which, among other causes, stated facts showing the court to be without jurisdiction was erroneous, p. 207.</p>

<p>1. Pleading.—Complaint.—Certainty.—Although a complaint, containing sufficient facts, is lacking in definiteness and certainty, it will rexiel a demurrer, p. 210.</p> <p>2. Appeal.—Waiver of Error.—Failure to Discuss in Brief.—By failing to discuss an alleged error in its brief, appellant waived its right to a consideration thereof, p. 210.</p> <p>3. Pleading.—Complaint on Contractor’s Bond.—Allegations.—Construction.—In an action against the surety on a contractor’s bond for the erection of a heating system, where the contract provided that payment was to be made in five installments, the fourth installment being payable when the work was “erected comxilete, ready to start”, and the last being payable as soon as the same was placed in operation by the contractor, and found to be in accordance with the plans and specifications, and operated successfully, and the complaint averred that after the system was erected, and at all times since, the contractor had failed to operate it successfully, the further allegation that plaintiff had made all the liayments of money to the contractor as stipulated in the contract, fairly construed, is an averment that all payments were made except the last one, which was not due until after the system had been successfully operated, and which, under the provisions of the bond, was not to be paid until after notice to the surety, p. 210.</p> <p>4. Trial.—Verdict.—Answer to Interrogatories.—Where a complaint against the surety on the bond of a contractor for the erection of a heating system, alleged that after the erection of the work, and at all times since, the contractor had failed to operate it successfully, and that xilaintiff had made all payments to the contractor as stipulated in the contract, and the contract provided that the last payment was to be made after the system had been successfully operated, answers by the jury to interrogatories, showing that plaintiff had paid for the system and had failed to notify the surety before making final payment, were not in conflict with a general verdict for plaintiff, since “final payment” shown by the interrogatories had reference to the last payment that became due under the allegations of the complaint, and not to the payment to become due after the system was successfully operated, which alone was required by the bond to be made only after notice to the surety, p. 212.</p> <p>5. Tbial.—Verdict.—Answers to Interrogatories.—Where a contractor’s bond provided that notice should be given to the surety within twenty-four hours of any act, omission or default on the part of the principal, which may involve a claim or loss, tho jury’s answers to interrogatories, in an action against the surety for the contractor’s failure to make the work operate successfully, showing that plaintiff knew of the defective condition of the device several weeks before notifying the surety that it would not operate successfully, were not in conflict with a verdict for plaintiff, since under the pleadings evidence might have been given to show that the defective condition of which plaintiff had knowledge was not such as would involve a claim or loss. p. 213.</p> <p>(1. Tbial.—Verdict.—Answers to Interrogatories.—Control of Verdict.—The special findings of a jury will not control its general verdict, unless there is antagonism apparent on the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, p. 215.</p> <p>7. Appeal.—Review.—Harmless Error.—Instructions.—In an action against the surety on a contractor’s bond where tho verdict for plaintiff was in a sum less than the penalty of the bond, the failure of the court in its instructions to inform the jury that it must limit the recovery to an amount not greater than the pen- . alty of the bond, was harmless error, p. 215.</p> <p>8 Tbial.—Instructions.—Conformity to Evidence.—Refusal.-—The refusal of requested instructions which do not conform to the evidence in the case is proper, p. 215.</p> <p>¡3. Appeal.—Review.—Harmless Error.—Modification of Instructions.—While the failure of the trial court to rewrite requested instructions, as modified, as required by §501 Burns IDOS, Acts 1907 p. 052, is error, a cause will not be reversed therefor where it appears from the record that appellant was not harmed thereby, p. 215.</p> <p>10. Evidence.—Competency.—Quality or Efficiency of Machinery.— It is not competent to establish the quality or efficiency of tho machine in controversy by proving that of a machine sold to some one else. p. 216.</p> <p>11. Appeal.'—Objection to Admission of Evidence.—Waiver.— Briefs.—The consideration of the action of the trial court in the admission of evidence is waived, where appellant has not complied with Buie 22 of the Supreme Court, by pointing out in its brief tbe specific question or answer objected to. p. 217.</p> <p>12. Appeal.— Remeto.— Verdict.— Evidence.— Sufficiency.—• Where there is some evidence to support each material allegation of tlio complaint, the verdict is sustained by sufficient evidence, p. 217.</p>

<p>1. Appeal.—Assignment of Errors.—Waiver.—Briefs—Errors assigned in overruling motions for a venire üe novo, and for judgment on the verdict, are waived by appellants’ failure to set out the motions or their substance in the brief as required by Rule 22 of the Supreme Court, p. 218.</p> <p>2. Appeal.—Record.—Matters Not in Record.—Bill of Exceptions. —Failure to File in Time.—Where a bill of exceptions is not presented to the judge of the trial court within the time fixed, it is not properly in the record and its contents cannot be considered on appeal, p. 21S.</p> <p>3. Appeal.—Record.—Matters Not in Record.—Bill of Exceptions. ■—Consideration of Questions on Admission or Exclusion of Evidence.—Motion for New Trial.—Statements in a motion for a new trial, of alleged errors occurring at the trial, cannot be accepted as true on appeal unless verified by the record, so that where a bill of exceptions containing the evidence is not in the record no question in relation to the admission or exclusion of evidence is presented for review, although the matters complained of are set out in the motion for a new trial, p. 219.</p> <p>4. Appeal.—Objection to Instructions.—Exceptions m Gross.—Effect.—Where the motion for a new trial specifies error jointly, or in gross, in the giving of a series of instructions, all of the instructions in the series must be erroneous, or the error assigned thereon is unavailing, p. 219.</p>

Prom Marshal] Circuit Court; Moses B. Dairy, Special Judge. Action by Jacob S. Ness against the Board of Commissioners of the county of Marshall, and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901 p. 565.)

<p>Prom Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Catherine L. Henby against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, defendant appeals.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Action by Rosalind Ramsey and another against the Crawfordsville Trust Company, as executor of the will of Alexander F. Ramsey, deceased, and others. From a judgment for plaintiffs, the defendants appeal.

Prom Howard Circuit Court, William G. Pitrdum, Judge. Application by Michael 0 ’Donnell for license to sell intoxicating liquors, against which Gilbert D. Jay remonstrated. Prom a judgment granting the license, the remonstrant appeals.

From Huntington Circuit Court, Samuel E. Cook, Judge. Action by Julia A. Aldrich against Joseph G. Amiss and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Embezzlement.—Affidavit.—Sufficiency.—Under §2285 Burns 1908, Acts 1905 p. 584, §392, providing that every officer, agent, attorney, clerk, servant or employe of any person, firm, corporation or association, who, having access to, control or possession of any money, to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete or in any way appropriate the same to1 Ms own use, shall be deemed guilty of embezzlement, an affidavit alleging that a certain person was treasurer of an Odd Fellows Lodge, and that as such treasurer he had control and possession of a sum of money, the property of said lodge and to the possession of which it was then and there entitled, and that he, while such treasurer and so in possession and control of said money, embezzled the same, was sufficient as a charge of embezzlement without the use of the words “by virtue of his employment” in describing the character of defendant’s possession, since the allegation that he was “treasurer” was a direct allegation of a particular employment involving a trust relation to the funds, and the allegation that he had control and possession “as such treasurer” excluded any implication that he gained such control and possession otherwise than rightfully by virtue of his office, p. 312.</p>

<p>1. Criminal Law.—Plea in Abatement.—Demurrer.—Sufficiency of Demurrer.—A demurrer to a plea in abatement in a criminal action, on the ground that the plea did not state facts sufficient to constitute a defense to the action, was xiroperly overruled, since a plea in abatement need not allege facts sufficient to constitute a defense to the action and is good if it states facts which will abate the action, p. 314.</p> <p>2. Criminal Law.—Demurrer to Plea in Abatement.—Form.—The proper form for a demurrer to a plea in abatement in a criminal cause is that the plea does not state facts sufficient to quash the indictment, information or writ, or to abate the action, p. 315.</p>

<p>From Lake Circuit Court, Vernon W. VanFleet, Special Judge.</p> <p>Prosecution by the State of Indiana against Walter Gibson. From a judgment of conviction, the defendant appeals.</p>

<p>Prom Gibson Circuit Court, Herdis F. Clements, Judge.</p> <p>Prosecution by the State of Indiana against Arthur White. Prom a judgment of conviction, the defendant appeals.</p>

<p>From Miami Circuit Court, J oseph N. Tillett, Judge.</p> <p>Prosecution by the State of Indiana against John A. Schuster. From a judgment of conviction, the defendant appeals.</p>

<p>Prom Hendricks Circuit Court, J ames L. Clark, Judge.</p> <p>Action by. Plora P. Harrison by her next friend, "William A. Harrison, against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Constitutional Law.—Constitution.—Statutes.—The Constitution of the State is the supreme law, and all legislative enactments must be in conformity thereto arid in harmony therewith, p. 333.</p> <p>2. Elections.—Qualification of Votei's.—Statutes.—Constitutional Law.—When the Constitution defines the qualification of voters, that qualification can neither be added to nor changed by legislative enactments, p. 333.</p> <p>3. Elections.—Qualification of Yoters.—Constitutional Provisions. —The provisions of Art. 2, §1, of the Constitution (§83 Burns 1908) that all elections shall be free and equal, and Art. 2, §2 (§84 Burns 190S), providing that in all elections not otherwise provided for by the Constitution, every male citizen possessing the qualifications enumerated in said section and duly registered according to law shall be entitled to vote in the township or precinct in which he resides, apply to all elections, general or special, p. 333.</p> <p>4. Elections.— Illegal Voting.— Statutes.— Construction.— While §2561 Burns 1908, §2179 R. S. 1881, providing penalties for voting without possessing legal qualifications, is restricted by its language to apply to general elections, §2562 Burns 1908, §2180 R. S. 1881, provides penalties for “voting in wrong precincts” and is a definition of a separate and distinct offense, and, construed in its plain and ordinary meaning and with the view that the legislature intended to provide a general remedy indicated by the title of the act, it applies to all elections, p. 333.</p> <p>5. Elections.—Local Option Elections.—Governed l>y General Election Laws.—Under the “Proctor Law” (Acts 1911 p.363, §10), providing that in all elections held thereunder, and in all matters and proceedings not therein otherwise specified, all provisions, including penalties, of the general election laws of the State shall apply as far as the same are applicable, it was intended that local option elections should be guarded and governed by the general election laws of the State, p. 334.</p> <p>6. Statutes. — Criminal Statutes. — Construction. — The rule of strict construction of criminal statutes formerly prevailing has been so modified that the courts will look within the bounds of reason and common sense to the legislative intent when plainly manifested or expressed in the enactment, p. 334.</p> <p>7. Statutes.—Construction.—Repugnant Provisions.—Effect.—The rule that statutes are to be construed so that full force and effect shall be given to all parts thereof, must be applied in ascertaining wherein language which is specific necessarily comes in conflict with that which is general, and it is only when the repugnancy of special provisions to the general language is plainly manifest, after an effort to harmonize all the provisions of the statute by construing all parts together, that the legislative intent, as declared in the general enacting parts of the statute, is superseded, p. 335.</p> <p>S. Statutes.—Construction.—Legislative Intent.—The legislative intent, as expressed in the language used, must govern in the construction of all statutes, and it is the duty of the court to construe legislative enactments according to the natural and most obvious import of the language and without resorting to refined distinctions or forced constructions to limit or extend their operations. p. 335.</p> <p>9. Statutes.—Constmotion.—\Effect of Special Provisions of One Section on General Provisions of Another.—When there is no repugnancy between two distinct and coordinate sections of the same statute, the language of the special provisions of one should not control the general provisions of the 9ther, especially if the latter are in harmony with the purpose and scope of the statute as expressed in the title, p. 335.</p>

<p>1. Constitutional Law. — Legislative Authority. — Fundamental Legislation.—Under Art. 4, §1, of the Constitution, providing that the legislative authority of the State shall be vested in the General Assembly, the General Assembly is supreme and sovereign in the exercise of the law-making power thus conferred upon it, subject only to such limitations as are imposed, expressly or by clear implication, by that instrument and the restraints of the Federal Constitution, and the laws and treaties passed and made pursuant to it, but this general grant of legislative power does not include authority over fundamental legislation, or to draft and submit to the people a proposed new Constitution, pp. 343, 357, 361,380.</p> <p>2. Constitutional Law.—Legislative Authority.—The legislative authority conferred by Art. 4, §1, of the Constitution, is the power to make, alter and repeal laws, as rules of civil conduct, pursuant to the Constitution, except as to matters wherein such authority has been delegated to the Federal government, p. 343.</p> <p>3. Constitutional Law.—Constitution.—Statutes.—Distinction.—A constitution is a fundamental act of legislation by the people themselves, in their sovereign capacity, establishing the structure and mechanism of their government, while a statute is legislation by their representatives, subject to the limitations prescribed by the Constitution, p. 345.</p> <p>4. Constitutional Law.—Amendment of Constitution.—Power of General Assembly.—Construction.—In proposing amendments to the Constitution, the General Assembly is not in the exercise of the ordinary functions of legislation authorized by the general grant of legislative power in Art. 4, §1, of the Constitution, but acts in a matter of fundamental legislation by virtue of the special grant of power conferred by that instrument in Art. 16, §§1, 2, providing the manner of proposing amendments and the submission of the same to the electors of the State, and which is a narrow and limited power designed to aid the people in the exercise of their sovereign power over the structure of their government. p. 348.</p> <p>5. Constitutional Law.—Statutes.—•Oonsti'uction.—Buie.— When the words of a statute, fundamental or ordinary, are brought forward into the new one, the meaning attached thereto is also brought forward, p. 361.</p> <p>6. Constitutional Law.—Operation.—Specified Means for Exercise of Poioers Conferred.—Bight to Imply Other Means.—Where the means are specified by which the' power granted in a constitution shall be exercised, no other or different means for the exercise of such power can be implied, even though considered more convenient or effective than the means given in the constitution, p. 374.</p> <p>7. Constitutional Law.—Legislative Authority.-—Poioer to Draft Organic Law.—The legislature has'only that measure of power to draft organic law expressly granted to it through the Constitution (Const., Art. 16, §§1, 2), and that is to be-exercised strictly in the mode provided, pp. 376, 3S3.</p> <p>S. Constitutional Law.—Construction.—Implication of Power.— Where a constitution confers a power or enjoins a duty, it also confers, by implication, all powers that are necessary for the exercise of the one, or for the performance of the other, p. 370.</p> <p>O. Constitutional Law.—New Constitution.—Enactment by Legislature.—Validity.—The act of the legislature (Acts 1911 pp. 205-2431, incorporating therein a proposed new Constitution and providing for its submission to the people at the next ensuing general election for adoption or rejection, is void, considered either as a new Constitution or as a series of amendments, since, if considered as a proposed new Constitution, it is an act beyond the general legislative authority conferred by Constitution, Art. 4, §1; and it was not enacted pursuant to the requirements of Constitution, Art. 1G, §§1, 2, providing the method for proposing and submitting amendments, p. 385.</p> <p>JO. Constitutional Law.—Judicial Poioers.—Determination of Law.—Scope of Authority.-—Determination of Organic Law.—The power of the judicial department to determine and declare the law covers the whole body of the law, fundamental and ordinary, and the courts have the power, when it becomes a judicial question, to determine the validity of the. proposal, submission or ratification of change in the organic law. p. 385.</p> <p>11. Constitutional Law.—Judicial Poioers.—Jurisdiction to Bcstrain Acts of Ministerial Board of Which Governor is a Member. —TTnder the provisions of §6897 Bums 1908, Acts 1889 p. 157, §16, that the Governor of the State, and two qualified electors by him appointed, shall constitute a state board of election commissioners, the duty cast upon the governor, in his capacity as a member of the board, by the act to submit a proposed new Constitution (Acts 1911 pp. 205-243), which requires the performance by such board of certain duties relating to the preparation of the ballots for the submission of such proposed Constitution, is purely ministerial and wholly disconnected from his functions as Governor of the State, so that the court is not ousted of its jurisdiction, in a suit to enjoin the state board of election commissioners from preparing the ballots for such submission, by the fact that the Governor is a member thereof, pp. 398, 399.</p> <p>12. Constitutional Law.—Judicial Powers.—Interference With Executive.—The courts are without power to direct by mandamus, or restrain by injunction, the acts of the Governor in duties strictly political and executive, p. 390.</p> <p>13. Injunction.—Issuance of Writ.—Res tra/inmg Act of State Board of Election Commissioners.—An injunction to restrain the state board of election commissioners from preparing ballots for the submission of a proposed Constitution, as provided in Acts 1911 pp. 205-243, will not be denied on the ground that the Governor, who is a member of such board, has supreme executive authority with control over the military forces of the State, and that the decree could not be enforced if he chose to disregard it, since the court has no right to reflect on any officer of a coordinate department by assuming that the law, as declared by the court, might be disregarded, p. 408.</p> <p>14. Constitutional Law.—Proposed New Constitution.—Legislar Uve Enactment.—Judicial Determination of Unconstitutionality of Act.—Infringement on Legislative Authority.—The legislature being without authority to formulate and present a proposed Constitution to the people, its act in so doing is void, and its mandates, therein contained, of no more force than those of any citizen without authority under the Constitution, so that restraining the state board of election commissioners from performing the duties imposed by said act (Acts 1911 pp. 205-243) in preparing the ballots for the submission of such proposed Constitution, is not an interference by the court with legislative authority, p. 408.</p> <p>15. Injunction.—Proposed Constitution.—Submission to Vote.-— Constitutionality.-—Right to Sue.—The act of the legislature incorporating therein the draft of a proposed new Constitution and providing for its submission to the people at the next ensuing general election, being unconstitutional, the plaintiff, as a citizen and taxpayer of the State, has capacity to sue for himself and on behalf of all other citizens and taxx>ayers to enjoin the state board of tax commissioners from preparing ballots for submitting tlie same, and his eonmetency to sue is not affected by the smallness of the proportionate sum of the cost of the election which would fall upon him. p. 413.</p>

From Starke Circuit Court, F. J. Vurpillat, Judge. Action by Edgar W. Schilling against William Qninn and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Gourt under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Knox Circuit Court, B. M. Willoughby, Judge.</p> <p>Prosecution by the State of Indiana against Will Hall. Prom a judgment of conviction, the defendant appeals.</p>

<p>Prom Marion Criminal Court (40,393); Joseph T. Markey, Judge.</p> <p>Prosecution by the State of Indiana against Earl Ayres. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Drains.—Proceedings to Establish.—Appeal.—Requisites.—Under §6143 Burns 1908, Acts 1907 15. 508, §4, no appeal can be taken from a judgment establishing a drain, unless an appeal bond is filed within thirty days from the rendition of the judgment, to the approval of the court or the clerk in vacation, and the transcript of the record, including all bills of exceptions, is filed in the office of the Clerk of the Supreme Court within sixty days after the filing of the appeal bond. p. 460.</p> <p>2. Appeal.—Perfecting.—Time for Filing Transcript and Assignment of Errors.—An appeal must be taken within the time limited by statute, and unless the transcript and assignment of errors are filed within that time, there is no cause in the court, p. 460.</p> <p>3. Appeal.—Perfecting.—Failure to Perfect in Time.—Extension of Time.—Where appellant’s failure to perfect his appeal in time is caused by the violence or fraud of the appellee, or is due to accident or excusable mistake, the Supreme Court may grant an appeal on a proper application, p. 461.</p> <p>4. Appeal.—Perfecting.—Failure to Perfect in Time.—Application for Leave to Prosecute.—Sufficiency„—Where, in a drainage case, appellants had failed to file the transcript and assignment of errors within sixty days after filing the appeal bond, an application for leave to prosecute the appeal, in which it is not claimed that appellants wex*e prevented from perfecting the appeal by any violence or fraud of the appellees, and in which no mistake of fact or excusable neglect is shown, and from which it appears that an oral request to the clerk of the trial court to prepare the transcript was not made until twenty-seven days after judgment was rendered, and that the written precipe was not filed with such clerk until fifty-seven days after the judgment was rendered, is insufficient, in the absence of a showing that if the transcript had been ordered at an earlier date the appeal could not have been perfected within the time limited by statute, p. 461.</p>

<p>From Clark Circuit Court, Harry C. Montgomery, Judge.</p> <p>Prosecution by tbe State of Indiana against John Fritz. From a judgment of conviction, tbe defendant appeals.</p>

<p>Prom Clinton Circuit Court, Leonard J. Curtis, Special Judge.</p> <p>Prosecution by the State of Indiana against David W. Rigrish. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Appeal.—Record.—Matters Not Apparent from Record.—Ruling on Demurrer.—No Question Presented.—Where the only error assigned is on the ruling of the court in sustaining a demurrer to the complaint, and a search of the record discloses no ruling sustaining such demurrer and no exception by appellant to same, no question is presented and the judgment will be affirmed, p. 477.</p>

<p>1. Criminal Daw.—Appeal.—Record.—Motion to Quash.—Oral Motion.—Where a motion to quash was made orally, and the record discloses no ground on which it was based, no question thereon is presented on appeal, p. 479.</p> <p>2. Criminal Daw.—Appeal.—Assignment of Errors.—Insufficiency of Facts Stated to Oonstitute Public Offense.—An affidavit, when assailed for the first time on appeal, will be held sufficient as against the assignment that it does not state facts sufficient to constitute a public offense, since the provision of §3 Acts 1911 p. 415, that a complaint cannot be assailed for want of facts for the first time on appeal, applies to indictments and affidavits in criminal cases under §2231 Burns 1908, Acts 1905 p. 584, §344. p. 480.</p> <p>3. Seduction.— Criminal Prosecution.— Evidence.— Corroborative Evidence.—Acts of Prosecutrix.—Admissibility.—In a criminal prosecution for seduction, evidence of preparations made by the prosecuting witness in contemplation of marriage, without the presence or knowledge of the defendant, is inadmissible in corroboration of her testimony, p. 4S0.</p> <p>4. Seduction.—Criminal Prosecution.—Reputation of Prosecutrix for Chastity.-—-Proof.—While, in a criminal prosecution for seduction, the State is bound to prove that the prosecutrix was, at the time of the alleged seduction, of good repute for chastity, it was not bound to prove such repute by her. p. 482.</p> <p>5. Seduction. — Criminal Prosecution.—-Evidence.—-“Strong Corroborating Circumstances”. — Sufficiency. — Question for Jury. —■ Under §2120 Burns 1908, providing that in prosecutions for seduction the evidence of the female must be supported by at least one other witness, or by “strong corroborating circumstances”, it is for the jury to determine whether the corroborative evidence is “strong” enough to warrant a conviction, and its finding is not reviewable on appeal, p. 483.</p> <p>6. Appeal.— Review.— Evidence.—• Weight and Sufficiency.-—• The Supreme Court will not weigh evidence, p. 483.</p> <p>7. Seduction.— Criminal Prosecution.— Appeal.— Review.—-Sufficiency of Evidence.—-Verdict.—Where, in a prosecution for seduction, the only material facts controverted are the promise of marriage and the having of the intercourse under such promise, and the prosecutrix testified that defendant promised to marry her, and by virtue of such, promise accomplished her ruin, and on these propositions her evidence is corroborated by circumstances disclosed by the evidence of other witnesses, aside from that relating to her preparations for marriage, the Supreme Court is not warranted in setting aside the verdict for insufficiency of the evidence, p. 484.</p> <p>S. Criminal Law.—Appeal.—Rcvieio.—Harmless Error.—Instructions.—Under §2221 Burns 1908, Acts 1905 p. 584, providing that in appeals in criminal cases, the Supreme Court shall disregard technical errors and defects, which did not, in the opinion of the court, prejudice the substantial rights of the accused, error in the giving of an instruction in a prosecution for seduction, giving corroborative effect to the fact that the prosecutrix had made preparations for marriage, and the refusal of a tendered instruction correctly stating the law on that point, was harmless, where, with all evidence as to such preparations eliminated, the jury could not have failed to convict, p. 484.</p>

<p>1. Appeal. — Review. — Verdict. — Conflicting Mvidence.— Where there is evidence to support a verdict, the Supreme Court will not weigh conflicting evidence in order to reverse the cause, p. 490.</p> <p>2. Conteacts.—Marriage Contracts.—Conditioned on Antenuptial Agreement.—Validity.—A contract of marriage, a condition of which is the entering into an antenuptial contract, cannot be enforced unless such antenuptial contract is reduced to writing so as to bring it within the statute of frauds, but the rule does not apply as to a mutual, unconditional marriage contract made independently of an agreement for an antenuptial contract, p. 490.</p> <p>3. Contracts.—Breach of Marriage Promise.—Trial.—Cross-examination.-—Evidence.—Competency.—Where defendant, in an action for breach of promise to marry, had pleaded a mutual rescission of the agreement to marry, and there was evidence tending in that direction, and a witness testified to a conversation with plaintiff in which plaintiff said that defendant’s children had caused trouble, but that defendant had said he would marry regardless of the opposition of his children, and that a certain newspaper article had led up to the conversation, such article, not having been the subject of direct examination and having only been referred to by the witness in a voluntary statement in fixing the time and the cause of the conversation was incompetent for any purpose, and its admission on cross-examination was prejudicial error, p. 491.</p> <p>4. Appeal. — Revieio. — Incompetent Evidence. — Presumption. — Where incompetent evidence is admitted it will be presumed to have been prejudicial to the complaining party, p. 493.</p> <p>5. Trial.—Reception of Evidence.—Objection.—Form.—No question is presented by an objection to the admission of evidence, that it is incompetent, immaterial and irrelevant, and does not tend to support the issue, p. 493.</p> <p>G. Witnesses.—Examination.—Questions.—Form.—Where defendant, in an action for breach of promise to marry, had pleaded the mutual rescission of an antenuptial agreement, and In response to a question put to the iilaintiff, asking why she had not signed such antenuptial agreement, she answered that she did not sign it because defendant informed her that he was in trouble with his children and that they had better postpone matters for a while, there was no error in receiving the conversation, although it would have been better and in proper form to have asked the witness to give a conversation, if she had one, on the subject, p. 493.</p>

<p>Prom Jasper Circuit Court, Charles W. Hanley, Judge.</p> <p>Appeal to the circuit court by James O. Chapman from an order of the board of commissioners of Jasper County, sustaining the petition of Joseph Nisius and others for the, improvement of a highway. From a judgment of the circuit court dismissing the petition, the petitioners appeal.</p>

<p>1. Criminal Law.—Appeal.—Review.—Ruling on Motion for New Trial.—Where the record shows that defendant in a criminal case failed to file a motion for a new trial within the time fixed by statute (§2158 Burns 1908, Acts 1905 p. 584, §282), no question is presented on appeal on the action of the trial court in overruling the same. p. 500.</p> <p>2. Indictment.—Motion to Quash.—Defects Reached by Motion.—■ Under §2005 Burns 1908, Acts 1905 p. 584, §194, providing that an indictment or affidavit may be quashed for certain defects apparent on its face, a motion to quash an indictment against a railroad company for failure to equip its locomotive with an automatic bell ringer, as provided by Acts 1909 p. 441, on the ground that said act is in violation of Art. 1, §8, Constitution of the United States, and of the laws of congress enacted thereunder, relating to interstate commerce, presented no question to the court, where it did not appear on the face of the indictment that defendant’s road or locomotive was operated outside of the state, pp. 500, 501.</p> <p>R Criminal Law.—Motion in Arrest of Judgment.—Questions Presented.—The question of whether the “automatic bell ringer act” (Acts 1909 p. 441) is unconstitutional is not raised by a motion in arrest of judgment, such motion being authorized under §2159 Burns 190S, Acts 1905 p. 284, §283, only when the grand jury had no legal authority to inquire into the offense charged and when the facts stated in the indictment do not constitute a public offense, p. 501.</p> <p>4. Criminal Law.—Motion in Arrest of Judgment.—Questions Raised.—Sufficiency of Evidence.—The sufficiency or insufficiency of the evidence in a criminal case cannot be called in question by a motion in arrest of judgment, p. 501.</p> <p>5. Indictment.'—Failure to Provide Automatic Bell Ringer.— Sufficiency.—Language of Statute.—An indictment under the act of March 8, 1909 (Acts 1909 p. 441), requiring railroad locomotives to be equipped with automatic bell ringing devices, is sufficient if drawn in the language of the statute, p. 501.</p> <p>6. Constitutional Law.—Legislative Authority.—Police Regulations.—Statutes.—Validity.—The legislature has power to protect its citizens in their health and safety, and its act in that respect will be upheld, unless it is shown to- be unreasonable, p. 502.</p> <p>7. Constitutional Law.—Legislative Authority.—Regulation of Use of Private Property.—Reasonableness of Regulation.—Presumption.—The legislative regulation of the use of private property must be presumed to be reasonable and necessary, unless the contrary appears from facts of which courts will tafee notice, p. 502.</p> <p>8. Eailkoads.—Operation.—Automatic Bell 'Ringer.—Statutory Regulations.—'Validity.—Constitutional Law.—The act of March 8, 1009 (Acts 1909 p. 441), requiring railroad locomotives to be equipped with automatic bell ringing devices, is not an unreasonable and arbitrary regulation, and does not contravene §1 of the 14th amendment to the Federal Constitution, p. 502.</p> <p>9. Constitutional Law.—Police Regulation.—“Due Process of Lato”.—The exercise of a police regulation is not a denial of due process of law. p. 502.</p>

Prom Hendricks Circuit Court, James L. Clark, Judge. Action in the name of the State of Indiana by William B. Hedge and others, taxpayers of Jackson Township in Boone County, against William H. Miller, a former trustee of the township, and others. Prom a judgment for plaintiffs, the defendants appeal.

Prom Monroe Circuit Court, James B. Wilson, Judge. Action by Ival O. Price as administrator of the estate of Archibald Aikman, deceased, 'against tbe Vandalia Coal Company. Prom a judgment for plaintiff, the defendant appeals.

<p>1. Appeal.—Assignment of Errors.—Waiver.—Briefs.—A consideration of errors assigned on rulings of the trial court on demurrers to pleadings is waived by appellant’s failure to present them in his brief, p. 561.</p> <p>2. Appeal.—Presenting Question for Review.—Sufficiency of the Evidence—Briefs.—Defect Cured hy Appellee’s Brief.—The court will not refuse to consider the sufficiency of the evidence to sustain the trial court’s finding, although appellant has not complied with clause five of Rule 22 of the Supreme Court, which provides that where the sufficiency of the evidence is questioned appellant’s brief shall contain a condensed recital of the evidence in narrative form, where appellant’s failure is supplied by a statement of the evidence in appellee’s brief, p. 562.</p> <p>3. Appeal.—Revieto.—Findings.-—Evidence.—Sufficiency.—In an action against the receiver of a gas plant, where the defendant filed • a cross-complaint for an accounting for secret profits alleged to have been retained by plaintiff as promoter of the company, evidence showing that plaintiff represented to his associates that the plant could be purchased for $60,000, that they furnished all but a nominal amount of the purchase money believing that plaintiff was purchasing the plant for them all, that plaintiff purchased the plant for $40,000 and procured the deed to be executed to himself, and then organized a new company, causing the records to show a capitalization of $60,000 and the authorization of a $30,000 bond issue, that he sold stock to various parties, representing the cost of the plant at $60,000, and afterwards issued stock and bonds to himself and to his creditor in a total sum of $30,000, for which the corporation received nothing, was sufficient to support the finding and judgment for the receiver on his cross-complaint, p. 562.</p> <p>4. Trusts.—Resulting Trusts.—Purchase hy Promoter of Corporation.—Where a promoter of a corporation was furnished by his associates with' all but a nominal amount of the money for the purchase of property for them all, to be thereafter transferred to the proposed corporation, he, in making the purchase, acted in a fiduciary capacity and will be considered in equity as a trustee holding the acquired title for the benefit of those who furnished the money, p. 566.</p> <p>5. Corporation s.—Promoters.—Relation.—Duty in Transactions With Corporation.—The promoter of a corporation holding a fiduciary relation thereto, is bound to act in the utmost good faith, and is not permitted to obtain any secret advantage or profit over the stockholders, and, though he 'may sell property to the company which he is promoting, he can do so lawfully only when he provides an independent board of directors and makes a full disclosure to the corporation through them, or makes such disclosure to each original subscriber for stock, or when he shall have procured a ratification of the sale, after disclosing its circumstances, by a vote of the stockholders of the completely established corporation, p. 507.</p>

<p>1. Gamins. — “Gambling Device”.— Slot Machine. — A machine operated by depositing a nickle in a slot and then turning a crank, whereupon it automatically pays a reward consisting of a package of chewing gum and sometimes, in addition thereto, one or more checks that can be used in the slot instead of nickles, is a g-ambling device within the meaning of §2474 Burns 1908, Acts 1905 p. 584, §565, prohibiting the keeping of any device for the purpose of betting or gaming, although indicators are attached which inform the player as to the reward to be received before each play. p. 569.</p>

<p>1. Negligence.—Automobiles.—Injury to Persons on Highway.— Speed.—Proximate Cause.—Evidence.—In an action for the death of a boy' struck by an automobile while traveling along a rural highway, although there was some evidence that defendant had made a careful inspection of his machine before he started on the trip and found same to be in good repair, that the speed of the car at the time of the injury was not greater than twelve to fifteen miles an hour, and that the injury resulted from a sudden defect in the steering apparatus causing defendant to lose control of the car, where there was other evidence that defendant was traveling at the rate of twenty-five to thirty-five miles per hour, and that when within fifty to seventy feet from the boy the machine left the road and struck the boy and continued a distance of more than sixty-three feet to a telephone pole which it struck with sufficient force to tear a wheel off the car and break the cross-head on the pole, and then continued seventy-eight feet further .to an oak post, breaking it, the jury was warranted in finding that defendant was running the machine in excess of the speed allowed by law on rural highways (§10465 Burns 1908, Acts 1905 p. 202), and that such excess of speed was the proximate cause of the injury, p. 575.</p> <p>2. Negligence.-—Automobiles.-—Injury to Persons on Highway.— Excessive Speed.—Negligence Per Se.—Under §10465 Burns 1908, Acts 1905 p. 202, prohibiting the operation of any motor vehicle on any public highway at a greater rate of speed than twenty miles per hour, the operation of an automobile in excess of such speed is negligence per se which renders the operator liable for injuries proximately resulting therefrom, unless the injured was guilty of contributory negligence, p.,577.</p> <p>3. Negligence.—Automobiles.—Injury to Persons on Highway.— Evidence.—Sufficiency.—In an action for the death of a boy struck • by an automobile while traveling along a public highway, where the evidence showed that the boy was from fifty to seventy-five feet from the machine when defendant lost control of same, and that although the car was equipped with an emergency brake which was in good condition and which, if used, would have stopped the car within forty or fifty feet if running at a speed of thirty miles an hour, and within twenty to twenty-five feet if running at a speed of twelve to fifteen miles per hour, the defendant did not use the same, it was sufficient to warrant the jury in finding that defendant was guilty of negligence in not promptly applying such emergency' brake, p. 578.</p> <p>4. Death.—'Negligence.—Excessive Damages.—Father and Son.— An award of $1,SOO to a father for the death of his son, thirteen years of age, is not excessive where it is shown that the boy was obedient and industrious, was able to and did do a man’s work, that his services were worth from $200 to $1,000 per year and the cost of his maintenance was from $00 to $300 per year, and that the father had expended $200 for medical services and funeral expenses, p. 578.</p> <p>5. Negligence.— Automobiles.—■Failure to Provide Brahe.—Instructions.—(‘Sufficient”.—-“Efficient”.—In an action for the death of a boy who was struck b5r defendant’s automobile, an instruction that the statute requires motor vehicles to be provided with “a good and sufficient brake”, and that if defendant’s automobile was not provided with “a good and sufficient brake”, defendant was guilty of negligence, was not objectionable for the use of the word “sufficient” instead of the word “efficient” as used in §10407 Burns 1008, Acts 1905 p. 202, requiring persons operating motor vehicles to have the same equipped with good and efficient brakes, etc., since “sufficient” as used in the instruction meant that the brake should be reasonably safe for the purpose for which it was intended, and was practically synonymous with the word “efficient” as used in the statute, p. 579.</p> <p>6. Texal.—Instruction.—Negligence.—Omission of Element of Contributory Negligence.—In an action for the death of a boy who was struck by defendant’s automobile, an instruction that if defendant operated the automobile at a greater rate of speed than was proper and reasonable, etc., or at a speed in excess of twenty miles an hour, he was guilty of negligence, and if such negligence was the proximate cause of the injury the jury should find for the plaintiff on that issue, was not improper as diregarding the question of contributory negligence, as it did not direct a verdict for the plaintiff, although the last clause of the instruction, commencing with the word “and”, is condemned, p. 580.</p> <p>7. Trial.—Instructions.—Directing Verdict.—Omission of Essential Element.—The omission in an instruction of one or more facts or elements necessary to a recovery by a party in whose favor a verdict is directed renders such instruction erroneous, p. 5S0.</p> <p>8. Appeal.—Review.—Instructions.—Where each paragraph of the complaint, in an action for the death of a boy who was struck by an automobile, contained a different charge of negligence, an instruction that if the jury found defendant guilty of negligence “as alleged in one or more paragraphs of the complaint” and that such negligence “as alleged in one or more paragraphs” was the proximate cause of the injury and death, and that the boy was injured and died as alleged, and the plaintiff damaged as alleged, and that all the other material allegations of “one or more paragraphs of the complaint have been sustained by a preponderance of the evidence” and that neither the iilaintiff nor the decedent was guilty of contributory negligence, the finding should be for plaintiff, was not open to the objection that it informed the jury that if plaintiff had proved negligence as alleged in one paragraph, and had proved the material allegations of the other paragraphs other than the allegation of negligence, he could recover, regardless of whether he proved the other material allegations of the paragraph on which the negligence was found, and its giving was not error, p. 581.</p> <p>O. Evidence.—Credibility of Witnesses.—Question for Jury.—It is for the jury to determine what credit is to be given to the testimony of the witnesses, and in doing so it may consider the manner and conduct of the witnesses, their interest, bias or prejudice, if any, their knowledge, or lack of it, of matters about which they testified, together with all facts and circumstances proved and surrounding them which will enable the jury to arrive at the truth, p. 582.</p> <p>10. Appeal.— Record.— Revieio.— Refusal of Instructions.— Presumption.—Where it is claimed that the court erred in refusing certain instructions, and the record does not show that they were tendered to the court before argument was begun, it will be presumed that they were properly refused because not tendered in time. p. 582.</p> <p>11. Appeal.—Review.—Affirmance.—Where, on the determination of all questions properly presented by appellant’s statement of points, no reversible error is found, the judgment of the trial court will be affirmed, p. 588.</p>

<p>1. Criminal Law.—Questions Reviewable.—Bill of Exceptions.— Restraint of Defendant During Trial.—Alleged misconduct, consisting of bringing the defendant into court handcuffed and keeping him handcuffed during the trial of the case can be brought into the record by a bill of exceptions only, and, when not so brought in, no question thereon is presented for review, p. 585.</p> <p>2. Criminal Law.—Trial.—Discretion of Court.—Restraint of Defendant During Trial.—Whether it is necessary to restrain a prisoner by shackles or manacles during the trial is left to the sound discretion of the trial judge, p. 585.</p> <p>3. Criminal Law.—Appeal.—Record.—Misconduct of Prosecuting Attorney.—BUI of Exceptions.—Alleged misconduct of the prosecuting attorney in his argument to the jury can be brought into the record by a bill of exceptions only. p. 586.</p> <p>4. Criminal Law.— Appeal.— Questions Reviewable.—■Record.— Bill of Exceptions.—Misconduct of Prosecuting Attorney.—Under §057 Burns 1908, Acts 1897 p. 244, .alleged misconduct of the prosecuting attorney cannot be brought into the record by the original bill of exceptions, since that statute only authorizes the evidence and questions concerning the competency of witnesses and the admissibility of the evidence, to be made a part of the record by such original bill, and no other matters contained therein can be considered on appeal, p. 586.</p> <p>5. Criminal T,aw.—Appeal.—Review.—Misconduct of Prosecuting Attorney.—Failure to Object in Trial Oourt.—Even though alleged misconduct of the prosecuting attorney in argument is disclosed by the record, no question thereon is presented for review where defendant neither made a motion to set aside the submission and discharge the jury, nor asked the court to instruct the jury to disregard the statements constituting the alleged misconduct, or to take any other action to counteract the effect thereof, p. 586.</p> <p>6. Homicide.—Appeal.—Revieio.—Harmless Error.—Conviction for Murder in First Degree.—The return of a verdict of guilty of murder in the first degree and fixing'the punishment at life imprisonment, where the evidence may have only warranted a finding that defendant was guilty of murder in the second degree, were harmless errors, since the punishment assessed by the jury is the same as that provided by §2238 Burns 1908, Acts 1905 p. 584, §350, for murder in the second degree, p. 587.</p>

<p>1. Intoxicating Liquors.—Unlamful Sales.—Appeal.—Revieio.— Evidence.—Instructions.—In a prosecution for selling intoxicating liquor without a license, where defendant claimed to have a license granted to him by a judgment of the circuit court subsequently to the holding of a local option election which, according to the certificate of the election commissioners, resulted in favor of the sale of intoxicating liquors, but which was determined by the county commissioners to have resulted in prohibiting such sale, the rulings of the trial court on the admissibility of evidence and the giving and refusing of instructions, based on the theory that the certificate of the board of election commissioners as to the result of such local option election was conclusive and that the board of county commissioners had no power to go behind the return of such election commissioners and determine the result to be otherwise than as shown by such return, were erroneous, pp. 591, 592.</p> <p>2. Intoxicating Liquors.—Local Option Election.—Determination of Result.—Power of County Commissioners.—The board of county commissioners has the power to go behind the return of the board of election commissioners as to the result of a local option election, and determine and declare the correct result, p. 591.</p> <p>3. Intoxicating Liquors.—Local Option Elections.—Determination of Result l>y County Commissioners.—Collateral Attack.—The declaration of a board of county commissioners as to the result of a local option election is not subject to collateral attack, p. 591.</p> <p>4. Intoxicating Liquors.—Local Option Elections.—Evidence.— Judicial Rotice.—Courts are bound to take judicial notice of the result of a local option election as declared by the board of county commissioners, p. 591.</p> <p>5. Intoxicating Liquors.—Local Option Elections.—License.—Validity.—Where the board of county commissioners has declared the result of a local option election to be in favor of prohibiting the sale of intoxicating liquors, a license thereafter granted by the judgment of the board, or of any court, is void. p. 591.</p>

Prom Clay Circuit Court, John M. Bawley, Judge. Action by the State of Indiana, on the relation of William A. Crow, against Daniel V. Eteheson, Trustee of Monroe School Township of Putnam County, and others. Prom a judgment for defendants, the relator appeals.

<p>1. Highways. — Establishment. — Petition. — Parties. — Notice. — Under §7063 Burns 1908, Acts 1905 p. 521, providing that, on petition of one or more freeholders of the county, highways laid out and used, but not sufficiently described, or recorded, may be ascertained, described and entered of record, it is not necessary that the petition be signed by any one over whose land the highway runs, but the landowners affected must be named in the petition and notice given to them. p. 602.</p> <p>2. Highways. — Establishment. — Petition. — Parties. — Necessary Parties.—Appeal.—Under §7663 Burns 1908, Acts 1905 p. 521, providing for the establishing and recording of highways on petition of one or more freeholders of the county, the petitioners are parties to the proceedings, as much as the owners of the land over which the highway runs, and are necessary adverse parties both on the trial of the cause and on appeal, p. 602.</p> <p>3. Highways.— Establishment.— Judgment.— Effect.— A judgment ordering a highway recorded, under §7663 Burns 1908, Acts 1905 p. 521, providing for the establishing and recording of highways on petition of one or more freeholders of the county, is a judgment against one of the petitioners over whose land the highway runs, as well as against other landowners over whose land it runs, but who are not petitioners, p. 002.</p> <p>1. Appeal.—Parties.—Necessary Parties.—Those who are parties to a judgment, or interested in maintaining it, must be made parties to an appeal therefrom, p. (i03.</p> <p>5. Appeal.—Vacation Appeal.—Parties.—Coparlies.—Notice.—In a vacation appeal, all persons against whom judgment is rendered either in rem or in personam, or who in any manner are bound or affected by the judgment, are coparties, and on appeal by one of them the others must, under §674 Burns 1908, Acts 1899 p. 5, be joined as coappellants and be given notice of the appeal, p. 603.</p> <p>6. Appeal.—Judgment Recording Highway.—Parties.—A judgment recording a highway under the provisions of §7663 Burns 190S, Acts 1905 p. 521, is a judgment -in rem, affecting the entire highway and all the landowners the same, over whose land it passes, and being wholly indivisible, a landowner affected, although a petitioner, is a necessary party appellant on appeal from such judgment, in order to confer jurisdiction, p. 604.</p> <p>7. Appeal. — Parties. — Jurisdiction. — Dismissal. — Where all the parties to a judgment, or who are bound or affected by it, are not before the court on appeal, the appeal will be dimissed for lack of jurisdiction, p. 604.</p>

<p>From Kosciusko Circuit Court, Francis F. Bowser, Judge.</p> <p>Action Iby The First National Bank of Mentone against the Board of Finance of Seward Township of Kosciusko County. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>From Floyd Circuit Court, William G. Utz, Judge.</p> <p>Action by Benjamin Adams against tbe American Car and Foundry Company. From a judgment for plaintiff, the defendant appeals.</p>

From Delaware Circuit Court, James S. Engle, Special Judge: Drainage proceeding by William Peckinpaugh and others against which George E. Wiley and others remonstrated. From a judgment establishing the drain, the remonstrants appeal.

<p>Prom Perry Circuit Court; William Ridley, Judge.</p> <p>Prosecution by the State of Indiana against Joseph Weigand. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Appeal.—Divided Court.—Affirmance.—Fnder the provisions of §701 Burns 1908, §659 R. S. 1881, where one of the judges of the Supreme Court is incompetent to participate in the decision of a cause on account of interest therein, and the remaining judges are equally divided in the decision thereof and are equally divided on consideration thereof at the next succeeding term, the judgment of the trial court must be affirmed without costs, p. 630.</p>

<p>From Warren. Circuit Court; J. T. Scmnderson, Judge.</p> <p>Petition by Ira Evans and others to establish a drain. From a judgment dismissing the remonstrance of Benjamin F. Crow and others, Benjamin F. Crow appeals.</p>

<p>Prom Grant Circuit Court; II. J. Paulus, Judge.</p> <p>Prosecution by the State of Indiana against James Rowan. Prom a judgment of conviction, the defendant appeals.</p>

From Hancock Circuit Court; Meade Vestal, Special Judge. Proceeding to retax costs and allowances made to Oliver H. Monger and others on the dismissal of the petition of Jacob S. Pavey and others for the establishment of a drain. Prom a judgment retaxing the costs, Oliver H. Monger and others appeal, and Monger alone assigns error.

<p>From Huntington Circuit Court; Samuel E. Cook, Judge.</p> <p>Action by the First National Bank o£ Fort Wayne against Isaiah Rupert. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Bums 1908, Acts 1901 p. 590.)</p>

<p>1. Ceiminal Law.— Appeal.— Affidavit.— Sufficiency.— Waiver of Question.—Appellant waives the question of the sufficiency of the affidavit on which he is prosecuted, by failing to discuss it, or to present any point or authority in regard to it. p. 673.</p> <p>2. Appeal.—Review.—Sufficiency of Evidence.—Briefs.■—Where appellant makes no attempt to comply with Rule 22 of the Supreme Court, with respect to the evidence, and the points and authorities in his brief are statements of abstract propositions as to questions of variance, the court will decline to search the record to find what the evidence was, or to what evidence, if any, the points and authorities refer, p. 673.</p>

Prom Porter Superior Court, JET. B. Tuthill, Judge. Action by Forest Peoples, by Nelson J. Bozarth, his next friend, against the City of Valparaiso and another. Prom a judgment for defendants, the plaintiff appeals.

<p>1. Appeal.—Presenting Questions for Review.—Briefs.—Points and AutJvorities.—Under clause 5 of Rule 22 of the Supreme Court, providing that no alleged error or point, not contained in the statement of points, shall be raised afterwards, either by reply brief or in oral or printed argument, where appellant complained of various instructions, and his brief, under the head of points and authorities, contained merely abstract statements of tho law without designating the instructions to which such statements applied, such brief was insufficient to present any question on such instructions, pp. 678, 679.</p> <p>2. Appeal.—Burden of Showing Error.—The burden is on appellant to point out the alleged errors of the trial court, p. 679.</p> <p>3. Appeal.—Briefs.—Defect in Appellant's Brief Cured by Appellee.—A defect in appellant’s brief, in failing to specify the instructions to which the points and authorities applied, is cured, where appellee’s brief specified such instructions and fully discussed the same on their merits, p. 679.</p> <p>4. Homicide.—Manslaughter.—Evidence.—Instructions.—In a prosecution for murder, where the evidence showed that defendant fired two shots at decedent, that the first was fired in self-defense, that one of the shots inflicted a mere scalp wound and the other pierced the heart and was the sole cause of death, an instruction telling the jury that if it found that defendant fired the first shot in self-defense, and that thereafter, knowing that he- was in no further danger, he fired a second shot voluntarily and in sudden heat, he would be guilty of manslaughter, was erroneous, since it was for the jury to determine which of the two shots produced the death, p. 680.</p> <p>5. Homicide.—Appeal.—Revieio.—Tlan'mless Error.—Instructions. —Verdict.—Error, if any, in giving instructions in relation to the crime of murder in the first and second degrees, is harmless, where defendant was convicted of manslaughter only. p. 681.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Proceedings for contempt against Halfred G-. Davis. From a judgment of conviction, defendant appeals.</p>

Prom Carroll Circuit Court; James P. Wason, Judge. Action by the Western Construction Company against tbe Board of Commissioners of the County of Carroll. Prom a judgment for defendant, the plaintiff appeals. (Trans>ferred from the Appellate Court under §1392 Burns 1908, Acts 1907 p. 237, §1.)

<p>1. Highways.—Establishment.—Where a general right exists to use a strip of ground for travel, a highway exists, regardless of whether it was established by prescription, or by dedication, or under the right of eminent domain, p. 695.</p> <p>2. Highways.—Dedication.—Definition.-—The dedication of a highway consists of a gift of land by the owner for a way, and an acceptance thereof by the public, either express or implied from the significant acts of persons competent to act for the public in that behalf, p. 695.</p> <p>8. Dedication.—Highways.-—Power of Corporation to Dedicate.— A corporation has the power to dedicate land for highway purposes in the same manner as an individual, p. 696.</p> <p>4. Highways.—Action for Closing.—Dedication.—Question for Jury.—Verdict.—In an action for damages resulting from the closing of a strip of land alleged to have been dedicated by the owner for highway purposes, the question of whether the land was so dedicated was -one of fact for the jury and its verdict for plaintiff was a finding that such dedication had been made. p. 696.</p> <p>5. Easements.—Easement by Prescription.—Right of Public as Against Railroad Company.—The doctrine of waiver and estoppel applies to a railroad company the same as an individual, and it may stand by and allow its land to be used for public purposes', without objection, until the public has acquired easements and rights therein which the company cannot revoke, p. 606.</p> <p>6. Dedication.—Intention.—Street.—The question of dedication must be determined from the intention of the owner, as manifested by his acts, and where a landowner, by open and visible acts, unequivocally indicates to the public that he intended to, and did, throw his land open to the public for a street and the public has acted on the faith of that, there was a dedication, the law will treat the acts of the owner as constituting an irrevocable dedication, p. 696.</p> <p>7. Dedication.—Sufficiency of Acts.—Dedication of Highway by Railroad Company.—Where a strip of land belonging to defendant railroad company was used by defendant and its predecessor and the general public as a highway for more than thirty-five years, with the full knowledge and consent of defendant and its predecessor, and with knowledge of the platting of the land abutting thereon and the sale of lots to plaintiff and other purchasers and the erection of buildings on such lots, and that plaintiff had erected a dwelling and store to which such strip of land was the only means of ingress and egress, the acts of defendant constituted a dedication of tlio land for a street, regardless of any secret intention that the way should be a private one. p. 697.</p> <p>8. Dedication.—Estoppel to Deny.—Highways.—A landowner will be estopped from denying a dedication of land for a highway, when other persons have acted on his open acts and conduct. p. 697.</p> <p>9. Dedication.—Use for Twenty Years.—Presumption of Intention. —Where the use of an easement has continued for more than twenty years, the intention of the owner to dedicate will be conclusively presumed, p. 698.</p> <p>10. Dedication.—Streets.—Railroads.—Application of Statute.— Section 5244 Burns 1908, Acts 1899 p. 477, providing that the use by the public of the right of way or depot grounds of any railroad shall not ripen into a right to continue to do so, even though such use has continued for a period of twenty years or more, does not apply where a railroad company by its conduct dedicated a strip of land to the public for highway purposes, p. 698.</p> <p>11. Highways.—Closing.—Measure of Damages.—The measure of damages where a highway is closed so as to cut off accessibility to the property of an abutting owner, is the difference between the fair market value of such property before and after the closing, and evidence as to such values need not be limited to the value on a particular day before or after such closing, p. 699.</p> <p>12. Appeal.—Review.-— Conflicting Evidence.— Verdict.— Conclnsiveness.-—It is not the province of the court on appeal to weigh conflicting evidence, and where there was evidence to support the material allegations of the complaint, the verdict for plaintiff will not be disturbed, p. 099.</p> <p>13. Appeal.—Review.—Instructions.-—Eadlure to Conform to Pleadings.—An instruction which failed to conform to the pleadings, in that it was not as broad as the allegations of the complaint, was properly refused, p. 700.</p>

<p>From Superior Court of Marion County (78,590) ; James M. Leathers, Judge.</p> <p>Action by Lewis A. McCammon and another against Benjamin F. Morris. From a judgment for defendant, the plaintiffs appeal.</p>

<p>From Cass Circuit Court, John 8. Lairy, Judge.</p> <p>Prosecution by tbe State of Indiana against Robert S. Tam. From a judgment overruling a demurrer to a plea in abatement, this appeal is prosecuted.</p>

From Grant Circuit Court, Leroy B. Nash, Special Judge. Application by The Jung Brewing Company for a license to sell intoxicating liquors. From an order of the board of commissioners dismissing the application, the applicant appealed to the circuit court, and from a judgment granting such license, this appeal is prosecuted.