Volume 179 — Indiana Reports

From Superior Court of Marion County (77,404) ; John L. McMaster, Judge. Action by Frank S. Gorman against the Town of Woodruff Place and others. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Husband and Wife,—Desertion.—Constructive Desertion.—Misconduct.—In many jurisdictions recognizing the doctrine of constructive desertion by holding a spouse guilty of desertion, who, by misconduct or cruelty, drives the other away, the misconduct must be such as in itself will constitute a ground for divorce. p. 10.</p> <p>2. Husband and Wipe.—Desertion.—Reparation i>y Mutual Consent.—Desertion implies a want of consent, an unwillingness, on the part of the complaining spouse, and there can be no desertion where the separation is founded on the mutual consent of the parties, p. 11.</p> <p>3. Courts.—Transfer of Appeal to Supreme Court.—Questions Reviewed.—New Questions.—Constructive Desertion.—The reeommendation of the Appellate Court, on the transfer of an appeal from that court to the Supreme Court, that the latter overrule one of its decisions in conflict with the doctrine of constructive desertion, will not be considered where the facts disclosed by the record do not constitute a desertion under that doctrine, p. 11.</p> <p>4. Husbahd abtd Wife.—Desertion.—Evidence.—Sufficiency.—In an action by a wife against her husband for support, under §7869 Burns 1908, §5132 R. S. 1881, providing that a married woman may obtain provision for her support, where the husband has deserted her without cause and without leaving her sufficient provision for her support, evidence showing that the wife left the husband, but which fails to show that she left him unwillingly for justifiable cause, and which is insufficient to sustain a finding in her favor for divorce, is insufficient to support a decision for plaintiff on the theory of a constructive desertion, p. 11.</p> <p>5. Divobce.-—Necessity for Adequate Cause.—Public policy requires that there be no severance of the marital relation without adequate cause, p. 13.</p> <p>6. Appeal.—Revieno.—Complaint.—Sufficiency.—Where a complaint is assailed for the first time on appeal, it will be deemed sufficient as against such attach if it will bar another action, p. 13.</p>

From Johnson Circuit Court; Ira W. Christian, Special Judge. Action by Mary A. Davis and others against Anna Kelley. Prom a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Superior Court of Vanderburgh County; Alexander Gilchrist, Judge. Action by the Railroad Commission of Indiana against the Southern Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1392 Burns 1908, Acts 1907 p. 237.) Affirmed.

<p>From Monroe Circuit Court; James B. Wilson, Judge.</p> <p>Prosecution by the State of Indiana against Silas Adams. Prom a judgment of conviction, the defendant appeals. Affirmed.</p>

<p>1. Appeal.—Rulings on Prior Appeal.—Law of the Case.—Sufficiency of Complaint.—Where alleged error in overruling a demurrer to a complaint was presented to the Appellate Court as ground for reversal in a former appeal, its decision holding such complaint sufficient is the law of the case as. to its sufficiency throughout all subsequent stages of the cause, where such complaint remains unchanged, p. 52.</p> <p>2. Appeal.—Rulings on Prior Appeal.—Law of the Case.—Sufficiency of Complaint.-—Where, on a former appeal, the overruling of a demurrer to the complaint for want of facts was presented to the Appellate Court for review as error, and its ruling on that question was adverse to appellant, such ruling is conclusive as to the sufficiency of the complaint to state a cause of action, and any objections to the sufficiency of such complaint that were not then urged were waived, and are not available on a subsequent appeal, p. 52.</p> <p>3. Appeal.—Subsequent Appeals.—Lano of the Case.—All questions reserved for review on appeal, if presented at all, must be presented on the first appeal thereafter from a final judgment, since, after the determination of such appeal, all questions presented by the record will be considered as finally determined and all questions not expressly affirmed or reversed will, by implication, be deemed affirmed, p. 53.</p> <p>4. Appeal.—Review.—Harmless Error.—Ruling on Motion to Strike Out.—A judgment will not be reversed on account of the overruling of a motion to strike out part of the complaint, p. 54.</p> <p>5. Appeal.—Subsequent Appeals.—Sufficiency of the Evidence.— Where the evidence in the record on a subsequent appeal is substantially identical with that involved in a former appeal, wherein it was held sufficient to sustain the verdict, the question of its sufficiency to sustain the verdict is res adjudicata. p. 54.</p> <p>6 Appeal.—Revieio.—Harmless Error.—Admission of Evidence. —In an action for the death of plaintiff’s son in a passenger elevator, error in the admission of evidence as to the defective condition of another elevator in the same shaft, was rendered harmless, where the court sustained appellant’s motion to withdraw such evidence from consideration of the jury and instructed the jury not to consider it for any purpose, p. 55.</p> <p>7. Appeal.—Review.—Harmless Error.—Admission of Evidence. —Error in the admission of evidence, and the refusal of the court to strike it out and withdraw it from the jury’s consideration, is harmless, where, aside from such objectionable evidence, there was competent, unchallenged and uneontradicted evidence sufficient to fully support the verdict, p. 55.</p> <p>8. Appeal.—Record.—Questions Presented for Review.—Briefs.— No question is presented by the claim made in appellant’s brief that the court erred in admitting certain testimony, where appellant’s motion for a new trial did not include any such claim of error as a cause, p. 56.</p> <p>9. Parent and Child.—Death of Child.—Damages.—Instructions. —In a parent’s action for the death of his son, an instruction that in estimating plaintiff’s damages the jury might consider the condition of his family at the time of the accident, and the pecuniary value of all acts of kindness and attention which it might reasonably be anticipated the son would have performed for plaintiff and his family until majority, was a correct statement of the law. p. 56.</p> <p>10. Negligence. — Contributory Negligence. —Instructions.— The defect in an instruction which merely stated that defendant has the burden of showing contributory negligence, is supplied by another instruction informing the jury that the question of contributory negligence should be determined from all the evidence given in the cause, p. 57.</p> <p>11. Appeal.— Reviejo.— Instructions.— Issues.—Evidence.—Where the complaint to recover for the death of plaintiff’s son in a passenger elevator alleged that defendant negligently selected and employed an incompetent and inexperienced person to operate the elevator, and failed and neglected properly to instruct him in regard to his duties, and there was evidence to sustain such allegation, an instruction relating to defendant’s failure properly to instruct such operator was not outside the issues and evidence, p. 57.</p> <p>12. Carriers.—Elevators.—Injury to Passenger in Elevator.—Instructions.—In an action to recover for the death of a passenger in an elevator, an instruction applying the law of the case as declared on a former appeal, on the relation of carrier and passenger, hypothetically to the facts within the issues and of which there was evidence, and told the jury that if it found such facts to exist, the decedent was a passenger, was proper, and, when considered with other instructions, is not open to the objection that the jury may have understood therefrom that it might consider negligence on the part of the operator or defects in the elevator not alleged or proved by the evidence, p. 57.</p> <p>13. Appeal.—Subsequent Appeals.—Law of the Case.—Instructions.—Where an instruction was presented for review on a former appeal and was approved as a correct statement of the law, and the issues involved on a subsequent appeal of the case are the same and the evidence is not materially different, the former adjudication of the correctness of such instruction is, as to it, the law of the case. p. 58.</p> <p>14. Teial.—Instructions.—Assuming Facts.—An instruction that some evidence has been introduced tending to show certain defects on occasions prior to the time of the injury complained of, and telling the jury that if it finds from the evidence the existence of such defects it may consider such evidence as bearing on the question as to whether defendant had notice or by the exercise of reasonable care and diligence should have known of the defective condition of the elevator at the time of the injury complained of, does not assume that the elevator was defective, but leaves the existence of that fact for the determination of the jury. p. 58.</p> <p>•15. Appeal.—Review.—Instructions.—Evidence.—A cause will not be reversed for alleged error in the instructions, where the only evidence given in the case established without contradiction the appellant’s negligence, and the jury’s finding that appellee’s decedent was free from contributory negligence appears to be the most reasonable inference to be drawn from the evidence before it, since it is manifest that the error, if any, could not have affected injuriously appellant’s rights, p. 59.</p> <p>16. Negligence.—Complaint.—Instructions.—Where the complaint in a negligence case contained two charges of negligence, a requested instruction, so drawn as to lead the jury to understand that plaintiff could not recover if the evidence failed to establish either of the acts of negligence alleged as the proximate cause of the injury, was properly refused, p. 59.</p> <p>17. Paeent and Child.—Death of Child.—Damages.—Excessive Damages.—-An award of $2,500 damages to a father for the death of his son is not excessive where the son, at the time of his death, was slightly under fifteen years of age, was healthy, strong and industrious, affectionate in the family and helpful about home, and was earning about $20 per month as a messenger boy when killed, and when not thus employed was of valuable assistance to his father in performing work of a carpenter, p. 60.</p>

<p>From Jasper Circuit Court; E. B. Sellers, Special Judge.</p> <p>Proceedings instituted before the Board of Commissioners of Jasper County by Reuben C. Yeoman and others for the improvement of a certain highway, against which Almira M. Stockton and others remonstrated. Prom a judgment of the circuit court against the remonstrants, this appeal is prosecuted.</p>

<p>1. Appeal.—Parties.—Necessary Parties.—Where one of several defendants in an action to quiet title applied for and was granted a new trial as of right on the issue presented by a cross-complaint in which the plaintiff alone was made a defendant, and the interest of the cross-cqmplainant was as to real estate separate and distinct from that in which the other defendants claimed an interest, such other defendants were not affected by, and they had no interest in, the judgment rendered in such new trial, and are therefore not necessary parties on appeal from the judgment rendered in such subsequent trial, p. 69.</p> <p>2. Appeal.—Vacation Appeal.—Parties.—Notice.—Only parties to the judgment are required to be joined as appellants in vacation appeals and served with notice, p. 69.</p> <p>3. Quieting Title.—Deraignment of Title.—Common Source.—In an action to quiet title, where plaintiff and defendant claim through a common grantor in possession, the fact that plaintiff did not deraign title from the government cannot affect his right to recover on a complaint in which he asserts a fee simple title, p. 69.</p> <p>4. Quieting Title.—Com/plaimt.—Proof of Adverse Possession.— Sufficiency.—Where, in an action to quiet title, plaintiff’s complaint alleged a fee simple title, proof of possession of a great bulk of the property in plaintiff and his grantors for more than fifty years, under a deed describing the property described in the complaint, is sufficient to show constructive possession of the whole, and is sufficient to base a title in fee upon, in the absence of a showing of adverse possession in another for twenty years, p. 69.</p> <p>5. Name.—Idem Sonans.—“Blount”.—“Blunt”.—The name John Blunt in a deed conveying property entered by John Blount is sufficient to support a claim of title, the names being idem sonans. p. 71.</p> <p>6. Advekse Possession.—Admission Against Interest.—Disclaimer. —Where possession has not already ripened into a title by adverse possession, an admission by the one in possession that he does not own title to the land in controversy beyond the line shown by the survey, and such line is the same as the one claimed in the complaint to be the boundary of the land in dispute, is sufficient to toll the running of the statute of limitations, p. 75.</p> <p>7. Advebse Possession.—Admissions Agaimt Interest.—Mjfect on Grantee.—An admission by one while in possession that he did not own beyond tbe line of a survey, which was claimed to be the true boundary of the land in dispute in an action against his grantee to quiet title, is binding on such grantee in the absence of fraud or collusion, p. 75.</p> <p>8. Appeal.—Remew.—Evidence.—Weight and Sufficiency.—Where there is some evidence to support the judgment of the trial court, it will not be disturbed on appeal on the weight of the evidence, p. 76.</p>

<p>From Lake Circuit Court; H. J. Paulus, Special Judge.</p> <p>Action by John Gunzenhauser against Susan W. Sinclair and others. From a judgment for plaintiff, Susan W. Sinclair and another appeal.</p>

From Johnson Circuit Court; Wm. E. Deupree, Judge. Action by Belle Bowen, administratrix of the estate of John S. Bowen, deceased, against The Cleveland, Cincinnati, Chicago & 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>From Lake Circuit Court; Frank M. Pattee, Special Judge.</p> <p>Action by Carl E. Bauer, and others, as taxpayers, against George W. Caldwell and others to enjoin the construction of a school building. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Courts.—Rules of Decision.—Stare Decisis.—Since numerous petitions to transfer causes from the Appellate Court to the Supreme Court have been received and acted upon by the Supreme Court since its decision holding the act of 1911 (Acts 1911 p. 201) unconstitutional in so far as it purports to repeal the transfer clause of §1394, subd. 2, Burns 1908, Acts 1901 p. 565, a reconsideration of its constitutionality will be denied under the rules of stare decisis, p. 172.</p>

<p>From Porter Circuit Court; W. C. McMahan, Judge.</p> <p>Action by Joseph Husak against Patrick W. Clifford and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

From Cass Circuit Court; John S. Lairy, Judge. Action by Fred G. Burk to set aside the probate of the will of Martha C. Gruber, deceased. Prom a judgment vacating the order of probate, Sarah R. Ahearn appeals.

From Hamilton Circuit Court; Ira W. Christian, Judge. Action by Charles J. Miller against the Indianapolis Traction and Terminal Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Ceiminal Law.— Appeal.— Presumptions.— Affidavit.—Amendment Before Plea.—Under §2043 Burns 1908, Acts 1905 p. 584, §172, an affidavit in a criminal prosecution may be amended in matter of substance or form at any time before tbe defendant pleads, and where the record on appeal is silent as to whether a plea had been entered at the time the affidavit was amended, it will be presumed that defendant had not pleaded to the charge, and the action of the court in permitting the amendment will not be held erroneous, p. 186.</p> <p>2. Appeal..—Review.-—Presumptions.—A ruling of the trial court will be taken to be correct on appeal, in the absence of an affirmative showing by the record to the contrary, p. 186/</p> <p>3. Ceiminal Law.—Prosecution by Affidavit.-—Amendment of Affidavit.—Effect of Signature by Different Person.—The fact that an affidavit in a criminal prosecution, filed as an amended affidavit, was signed by the prosecuting attorney instead of by the person who signed the original affidavit, did not constitute it a new affidavit as distinguished from an amended one, whei'e the facts averred were the same. p. 187.</p> <p>4. Criminal Law.—Prosecution Before Justice of the Peace.— Jeopardy.—Amendment of Affidavit on Appeal.—Where defendant in a criminal prosecution was convicted before a justice of the peace, and thereupon appéaled to the circuit court, the subsequent filing of an amended affidavit in the circuit court did not put him in a second jeopardy for tne same offense, p. 187.</p> <p>5. Criminal Law.—Conviction Before Justice of the Peace.—Effect of Appeal to Circuit Court.—An appeal from a conviction on a criminal charge before a justice of the peace vacates the judgment and transfers the whole proceeding to the court appealed to. p. 188.</p> <p>6. Mines and Minerals.—Regulation.—Statutes.—Prosecutions.— Institution.—The right to institute prosecutions for violation of the mining act of 1905, is not limited to the inspector of mines and those under him. p. 188.</p> <p>7. Mines and Minerals. — Prosecutions. — Affidavit. — Negativing Exceptions of Statute.—An affidavit, in a prosecution for a violation of §22 of the mining act of 1905 (Acts 1905 p. 65, §8592 Burns 1908) by acting as hoisting engineer at a coal mine without having a certificate of service or competency, is not defective for failure to allege that ten or more men were employed in the mine where defendant worked, since the provision of the act, excepting from its provisions mines employing fewer than ten men, is not contained in the section on which the affidavit is based, but if the mine is within the exception it is a matter of defense to be interposed by the accused, p. 188.</p> <p>8. Criminal Law.—Affidavit.—Sufficiency.—An affidavit in a criminal prosecution is sufficient if it is drawn substantially in the language of the statute defining the offense charged, p. 189.</p> <p>9. Criminal Law.—Appeal.—S'ufficiency of Evidence.—Briefs.—No question is presented on the sufficiency of the evidence, where appellant has not pointed out in his brief, under points and authorities, any particular in which the evidence is insufficient, p. 189.</p>

<p>From Wells Circuit Court; J. H. C. Smith, Special Judge.</p> <p>Action by Della M. Studabaker against Charles. W. Alexander. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1394, subd. 2, Burns 1908, Acts 1901 p. 565, §10.)</p>

<p>1. Municipax, Cobpobations.-—Ordinances.—Power to Repeal.—As a general rule the power to enact ordinances implies power also to repeal them, but the rule does not apply as to an ordinance Which has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time fixed by the legislature, p. 200.</p> <p>2. Intoxicating Liquors.—Regulation.—License Fees.—Powers of Municipal Corporations.—Statutes.—Whether it was the legislative intent, by the provisions of §23 of the Proctor Law (Acts 1911 p. 244) fixing the license fees to be charged for licenses to sell intoxicating liquors, to iimit the authority of city councils over the fees for city licenses to the one act therein specifically authorized, is to be deduced from the language used and the apparent object of the statute, p. 201.</p> <p>3. Statutes.—Provisos.—Purpose of Proviso.—The office of a proviso in a statute generally is either to except something from the enacting clause, or to qualify or to restrain its generality, p. 201.</p> <p>4. Statutes.-—Provisos.—Construction.—A proviso in a statute is to be strictly construed and limited to the objects fairly within its terms, p. 201.</p> <p>5. Municipal Corporations.—Powers. — Municipal corporations have only those powers granted in express words, those necessarily implied and incident to the powers expressly granted, and those indispensable .to the declared objects and purposes of the corporation, and all doubtful claims of power are to be resolved against them. p. 201.</p> <p>6. Intoxicating Liquors.—Power to Regulate.—Municipal Corporations.—Sovereign power to regulate, control and license the liquor traffic is vested in the legislature, and municipal corporations, being but agencies of the State, have only such power to fix license fees for the sale of intoxicating liquors as-is granted to them by the legislature, p. 202.</p> <p>7. Intoxicating Liquors.—Regulation.—License Fees.—Powers of Municipal Corporation.—Statutes.—Section 23 of the Proctor Law (Acts 1911 p. 244) fixing the license fees to be charged for licenses to sell intoxicating liquors, is antagonistic to clause 40 of §53 of the act of 1905 (Acts 1905 p. 219) giving municipal corporations certain discretionary authority as to licensing the sale of intoxicating liquors and the fee to be charged, and, construing the proviso of said §23 of the Proctor Law with the enacting clause, it is clear that cities were thereafter without control over the question except to elect, in the time and manner in said section provided, what the amount of the fee shall be within the limits fixed by the legislature, and the election so made is not subject to change, p. 202.</p> <p>S. Municipal Corporations.— Ordinances.—■Validity.— Repeal of Ordinance Fixing License Fee Under Proctor Laxo.—A city ordinance purporting to repeal an ordinance enacted pursuant to §23 of the Proctor Law (Acts 1911 p. 244), fixing the fee to be charged for licenses to sell intoxicating liquors, is without legislative authority and void. p. 204.</p>

<p>1. Public Lauds.—State Lands.—Patents.—Construction.—Where a section of government land was almost entirely bounded on the north by a river, which formed an irregular boundary, so that in malting a survey it was necessary to divide the north half of the north half into lots by lines extending north and south, a patent from the gtate to one of such lots, described as containing 44.50 acres, more or less, carried with it the title to about 4.30 acres of marsh land lying north of such river and within the extended lines of the lot, although it was at the time of such survey covered with water and was not included in the 44.50 acres mentioned in the patent, pp. 206,211.</p> <p>2. Public Lands.—Swamp Lands.—Meandering Lines.—Meander lines, ran by the United gtates surveyor in the survey of swamp lands, were for the purpose of ascertaining the quantity of land to be sold, and are not boundary lines. p>. 209.</p> <p>3. Public Lauds.—Patents.—Grant in Accordance to Official Plat. —Effect.—When lands are granted according to an official plat of their survey, the plat with its notes becomes as much a part of the grant or deed by which they are conveyed, and, as far as limits are concerned, controls as much as if such descriptive features were written out on the face of the deed or grant p. 209.</p> <p>4. Public Lands.—Survey.—Variance BeUoeen Plat and Field Notes.—In case of a variance between a plat of lands and the field notes made in taking the survey, the former must control, p. 209.</p> <p>5. Public Lands.— Swamp Lands.—■Survey.— Variance Between Plat and Field Notes.—There is no variance between an official plat of lands showing an acreage which includes a small tract separated from the balance by a river, and field notes describing the small tract as “shaky marsh and under water one to three feet.” p. 210.</p> <p>6. Boundaries.—Determination of Boundaries.—Elements.—Quantity of Land.—While the quantity of land contained in a tract is the least important element in determining the boundary, it may be looked to in the absence of any other sufficient description. p. 210.</p> <p>7. Deeds.-—Quantity of Land Oomeyed.—“More or Less.”—A deed to a specific lot, described as containing a certain number of acres more or less, carries with it all the lands within the boundary lines of the lot. (Tolleston Club v. Lindgren [1907], 39 Ind. App. 448, 77 N. E. 818, distinguished.) p.2CL0.</p> <p>8. Judgment.—Conformity to Issues.—Action to Quiet Title.—In an action to quiet title to land, the judgment should be limited to the amount described in the pleadings, p. 211.</p>

<p>From Greene Circuit Court; Orion B. Harris, Special Judge.</p> <p>Action by the Lattas Creek Coal Company against the Board of Commissioners of the County of Greene. From a judgment for plaintiff, the defendant appeals. (Transferred from tbe Appellate Court under §1394 subd. 2, Burns 1908, Acts 1901 p. 565.)</p>

<p>From Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Action between the Gary Land Company and Wilhelmina Griesel, and from a judgment for the latter, the Gary Land Company appeals.</p>

<p>From Sullivan Circuit Court; Charles E. Henderson, Judge.</p> <p>Action by Eva Yandell against the Peabody-Alwert Coal Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1399 Burns 1908, Acts 1901 p. 565.)</p>

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Prosecution by the State of Indiana against Louis P. Closser. From a judgment quashing the affidavit, the State appeals.</p>

<p>1. Appeal.—Waiver of Error.—Briefs.—Errors assigned, but not discussed in appellant’s brief, are waived, p. 241.</p> <p>2. Appeal.—Record.—Bill of Exceptions.—Certification.—Original Papers.-—No document or paper can be certified by the clerk, without copying, except the bill of exceptions containing the evidence, with the rulings of the court as to the admission and rejection thereof, and to the competency of witnesses, and objections and exceptions thereto, p. 241.</p> <p>3. Appeal.—Bill of Exceptions.—Matters not Prop&rly Included.-— All matters improperly included in an original bill of exceptions containing the evidence must be treated as surplusage and disregarded. p. 241.</p> <p>4. Appeal.—-Record.—Matters Rot in Record.—Instructions Included in Bill of Exceptions.—Instructions to the jury are no part of the record on appeal when, they are included in an original bill of exceptions made part of the transcript, p. 242.</p>

<p>1. Pleading.—Complaint.—Demurrer.—A complaint to quiet title to a gas well and to enjoin defendants from interfering with plaintiff’s use of gas from tbe well, which states facts entitling ^plaintiff to injunctive relief, is sufficient to withstand a demurrer, since a complaint stating facts sufficient to entitle plaintiff to any relief is good against a demurrer, p. 245.</p> <p>2. Mines and Minerals.—Gas Wells.—Grant.—Rights of Parties. —Findings.—Conclusions of Law.—Motion to Modify Judgment. —In an action to quiet title to a gas well and to enjoin defendants from interfering with plaintiff’s use of gas from the well, where the facts specially found show that plaintiff’s grantor had conveyed to a light and power company a piece of land 20 feet square in part consideration that the company should drill a gas well thereon and furnish gas for domestic use on the farm as long as the well produced gas, that by mutual consent the company afterwards drilled a well on the farm outside such tract, and thereafter fitted the dwelling house for gas and supplied gas thereto free of charge until it quit the business of supplying gas, which was long after plaintiff had acquired the farm, and that thereafter the company’s successors, the defendants, refused to continue furnishing gas to plaintiff, and are threatening to disconnect a pipe line leading from the well to plaintiff’s house, there was no error in the conclusion of law that defendants own the well and that plaintiff is entitled to gas therefrom as long as gas may be taken from it, nor in overruling a motion to modify the judgment rendered on such conclusions, that defendants are entitled to take gas flowing from the well as long as it may flow in quantities sufficient for use, and enjoining defendants from cutting off the supply to plaintiff so long as they continue to take gas from the well. p. 246.</p> <p>3. Appeal.—Briefs.—Sufficiency.-—Statement of Evidence.—Where there is an entire failure in appellant’s brief to set out the evidence in narrative form, as required by Rule 22 of the court, the sufficiency of the evidence to support the findings cannot be reviewed. p. 247.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Prosecution by the State of Indiana against Jerome Schoemaker and another. Prom a judgment of conviction, the defendants appeal.</p>

<p>1. Crimimal Daw.—Appeal.—Evidence.—Verdict.—The court on appeal will not consider the evidence where it appears that there was evidence given supporting all the material elements constituting the crime designated by the verdict, since the probative worth of the evidence is for the jury. p. 252.</p> <p>2. Cbimiitax Law.—New Trial.—Neioly-Discovered Evidence.—A judgment will not be reversed because of the denial of a new trial on the ground that a witness has been' discovered who will testify that one of the State’s witnesses, who testified as to facts of the assault in detail as an eye witness, could not have been an eye witness, where other witnesses testified to the facts testified to by such State witness, since it cannot be said that the testimony of the new witness would have changed the result, p. 253.</p> <p>3. Cbiminax Law.—New Trial.—Newly-Diseovered Evidence.— There is no error in overruling a motion for a new trial on the ground of newly-discovered evidence which is merely corroborative and would not affect the verdict, p. 253.</p> <p>4. Ceiminax Law.—Trial.—Refusal of Instructions.—A judgment of conviction will not be reversed for the refusal of requested instructions, merely because tbe language used in the requested instructions is preferable to that used in the instructions given, p. 253.</p> <p>5. Ohimotal Law.—Trial.—Refusal of Instructions.—It is not error to refuse an instruction which is part of the setting of others, p. 254.</p> <p>6. Homicide.—Assault With Intent to Murder.—Evidence.—Instructions.—Self-Defense.—Where, in a prosecution for assault and battery with intent to commit murder, the evidence shows that defendant, knowing that the person assaulted was angered with him and drinking, voluntarily put himself in the way of an altercation, or at least showed no willingness to avoid it, and that he could have avoided it, requested instructions on the subject of self-defense, and pursuit in defense even to killing, were not applicable and were properly refused, p.254.</p>

<p>From Lake Superior Court; Virgil S. Reiter, Judge.</p> <p>Action by the Railroad Commission of Indiana against the Grand Trunk Western Railroad Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Huntington Circuit Court; S. E. Cook, Judge.</p> <p>Action by Rosella E. Eastes and others against Lavina E. Mallow and another. From an adverse judgment, the defendant Lavina E. Mallow appeals.</p>

<p>From Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by Ida Swafford against the Indiana Union Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1399 Burns 1908, Acts 1901 p. 565.)</p>

<p>1. Appeal.—Waiver of Error.—Briefs.—An assignment of error in overruling the demurrer to a complaint is waived where no objection to the sufficiency of such complaint is pointed out iri appellants’ brief, p.288.</p> <p>2. Appeal.—Record.—Evidence.—Real Evidence.—It is not contemplated that articles such as iron pipes, guns, articles of clothing, etc., used in the trial of a cause, as illustrative and explanatory of parol evidence, shall constitute a part of the record on appeal, and they have no place in the transcript, p. 288.</p> <p>3. Appeal.—Review.—Evidence.—Verdict.—'The court will not weigh the evidence on appeal, even though it is conflicting, if there is some evidence to sustain the verdict, p. 288.</p> <p>4. Master and Servant.-—Injury to Servant.—Instructions.—Invading Province of Jury.-—In an action by a servant who was injured by the exiflosion of a boiler tube, a requested instruction that in determining whether the tube was defective the jury could consider the fact, if it be a fact, that the tube was installed on or about the 14th of the month and continued in constant use thereafter until the explosion on the 29th under the same pressure of steam that it was subjected to at the time of the explosion, and if those facts be found, then the jury might find that it was not a defective tube, or, if defective, that the defect was unknown to defendants, was properly refused because it invaded the province of the jury in confining the question of determining the defect in the tube to the finding of whether it had withstood the pressure for the, time stated, and in telling the jury that if it did withstand the pressure for the time stated, even though defective, such defect was unknown to defendants, p. 289.</p> <p>5. Trial.—Deliberation by Jury.—Evidence.—The jury should consider all the evidence introduced on any stated proposition in determining the truth of such proposition. ■ p. 290.</p> <p>6. Master and Servant.—Injury to Servant.—Instructions.—In an • action by a servant injured by the explosion of a boiler tube, an instruction that the fact, if it be a fact, that the tube was installed on the 14th of the month and was thereafter until the explosion on the 29th constantly under practically the same pressure of steam to which it was subjected at the time of the explosion, and that it successfully withstood such pressure, could be considered by the jury in determining whether the tube was defective, together with all the other evidence in the case, was not improper on the theory that it authorized the jury to consider the evidence on the measure of damages in determining the question of defects, p. 290.</p> <p>7. Appeal.—Review.—Instructions.—-Presmnptions.—Where, in an action for injuries caused by the explosion of a boiler tube, the court instructed that, in determining whether the tube was defective, the jury could consider the use to which it had been put, together with all other evidence in the case, it will be presumed that the jurors were men of ordinary intelligence and that they understood that the instruction limited their consideration to the evidence relating to the condition of the tube in question, p. 290.</p> <p>8. Trial.—Instructions.—Consideration.—Instructions should be taken in the sense in which they would be understood by men of ordinary intelligence, p. 291.</p> <p>9. Appeal.—Review.—Refusal of Instructions.—The refusal of requested instructions is not error where they are covered by the instructions given, p. 291.</p> <p>10. Appeal.—Review.—Misconduct of Counsel.—Failure to Object. —No question is presented as to the alleged misconduct of counsel in argument, where no objection was made at the time, and no ruling of the court in relation thereto was assigned in the motion for a new trial, or assigned as error on appeal, p. 291.</p>

From Marion Circuit Court (21,855); Charles Remster, Judge. Petition of Charles W. Boswell for admission to practice law, to which written objections were filed. Prom a judgment refusing to admit petitioner, this appeal is prosecuted.

<p>From Vigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Prosecution by the State of Indiana against Calvin Morgan for murder. From a judgment committing him to be confined in the Indiana Hospital for Insane Criminals, the defendant appeals.</p>

<p>1. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Construction.—The bond required to be given by a contractor for the construction of sewers pursuant to the provisions of the cities and towns act of 1905 (Acts 1905 p. 219) is a statutory bond, and, in so far as it is within the statute, should receive a construction to effectuate its purpose, p. 313.</p> <p>2. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Consideration.—The statute itself furnishes the consideration for the conditions Imposed by §8959 Burns 1908, Acts 1905 p. 219, §205, requiring a sewer contractor to execute a bond for the faithful performance of his work, etc. p. 314.</p> <p>3. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Construction.—Protection of City Against Liens.-—Prior to the enactment of §8712 Burns 1908, Acts 1907 p.' 167, there was no statutory provision for acquiring liens against public property, so that the provisions of a sewer contract and bond, executed prior to that statute, as to saving the city harmless from liens, were of no consequence, and the provisions thereof for the payment of all claims for labor and material could only be for the benefit of third persons and not of the city. p. 314.</p> <p>4. Municipal Corporations.—Public Improvements.—Contracts.—■ Bonds.—Construction.—Under the provisions of §1278 Burns 1908, §1221 R. S. 1881, contracts and bonds executed by a contractor for the construction of a system of sewers pursuant to §8959 Burns 1908, Acts 1905 p. 219, §265, will be construed together, and the provisions of the statute will be read into them, and it will be held that the parties contracted with reference to such statute, and their liability will be confined to that contemplated by the statute, p. 315.</p> <p>5. Municipal Corporations.—Public Improvements.-—Contractor’s Bond.-—Construction.—A covenant in a sewer contractor’s bond for the payment for materials is independent of a covenant therein for the protection of the city. p. 315.</p> <p>6. Municipal Corporations.—Public Improvements.—Contractor’s Bond.-—Protection of Subcontractors.—A bond executed pursuant to §8959 Bums 1908, Acts 1905 p. 219, §265, requiring a bond for the faithful performance, etc., of a contract for public improvemeuts, does not run to creditors of a subcontractor, p. 316.</p> <p>7. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Liability.—Omitted Terms.—A sewer contractor’s bond, complete and unambiguous on its face, .cannot be recovered upon for lack of something claimed to be omitted, where the statute does not require the insertion of the alleged omitted terms, in the absence of allegation and proof that such terms were omitted, p. 316.</p> <p>8. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Construction.—Liability of Sureties.—While the obligations of the sureties on a sewer contractor’s bond, executed pursuant to §8959 Burns 1908, Acts 1905 p. 219, §265, should not be extended beyond their undertaking under the statute, within that undertaking a liberal interpretation is indulged in favor of material men and laborers, p. 316.</p> <p>9. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Sureties.—Notice of Default.—The sureties on the bond of a sewer contractor must take notice of the default of their principal, p. 316.</p> <p>10. Municipal Corporations.—Public Improvements.—Action on Contractor’s Bond.—Complaint.—In an action on a sewer contractor’s bond to recover for material furnished in the construction of the sewer, the complaint was sufficient without directly averring that the material was used in the construction of the sewer where it alleged the shipment of the material, its receipt by the contractor and its distribution along the lines of the proposed sewer for the purpose of being used in the construction thereof, since, if it was not so used, that fact was a matter of defense, pp. 316, 318.</p> <p>11. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Defmili.—In an action on the bond of a sewer contractor for the price of pipe furnished, it was not material that the complaint failed to directly allege that the pipe was actually used in the construction, since the bond was conditioned for the payment of all claims for labor and material, and it was the contractor’s failure to pay which constituted the default for which the sureties were liable, p. 316.</p> <p>12. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Obligation of Surety.—Nature.—The obligation of the surety on the bond of a contractor for the construction, of a sewer is an original undertaking, the same as that of the principal. p. 318.</p> <p>13. Municipal Corporations.—Public Improvements.-—Action on Contractor’s Bond.—Evidence.—Sufficiency.—In an action on the bond of a contractor for the price of pipe furnished for the construction of a sewer, there is no failure of the proof to support a finding for plaintiff, where the evidence shows that all the pipe for which payment is claimed was delivered and distributed' along the line of construction, and that part of it was put into the sewer construction, although it does not appear how much was so used, since, if the work was abandoned, it will be presumed that the city had the advantage of the pipe that had not been used. p. 319.</p> <p>14. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Knmoledge by Surety of Statutory Requirements.—The surety on the bond given by a contractor for public improvements pursuant to §8959 Bums 1908, Acts 1905 p. 219, §265, are bound to know that a local surety on such bond is necessary, p. 319.</p> <p>15. Principal and Surety.-—Release of Surety.—Addition of Surety.—The rule that sureties are released by the addition of another name as surety ordinarily applies only where such, name has been added to the instrument after its execution and delivery to the obligee and its acceptance by him: p. 319.</p> <p>16. Alteration oe Instruments.—Effect.—The alteration of an ordinary written instrument after signing by some, and before signing by others, so as to change its terms, made with the knowledge of the payee or obligee, express or implied, will discharge the party not assenting when the contract is perfected, p. 320.</p> <p>17. Alteration oe Instruments.—Implied Assent.—Contractor’s Bond.—Addition of Surety.—Since §8959 Burns 1908, Acts 1905 p. 219, §265, requires that the bond of a contractor for public improvements in a city shall be signed by two sureties who are residents of the county in which the city is located, the act of a contractor, before the acceptance of his bond, in procuring local surety to sign same after it had been signed by nonresident sureties, did not operate to release the latter, but the latter are held to have at least impliedly authorized such act for the purpose of effectuating the bond. p. 320.</p> <p>18. Alteration oe Instruments.—Effect.—Alterations which do not change the legal effect oí a written instrument do not affect liability thereon, p. 320.</p> <p>19. Municipal Corporations.—Public Improvements.—Contractor’s Bond.—Insertion of Name of Surety.—It is not essential to the validity of a contractor’s bond executed pursuant to §8959 Burns 1908, Acts 1905 p. 219, §265, that 'the name of a surety be inserted in the body of the bond. p. 321.</p>

<p>1. Pleading.—Complaint.—Right to File Supplemental Complaint. —Discretion of Court.—Under §408 Burns 1908, §399 R. S. 1881, providing that the court may, on motion, allow supplemental pleadings showing facts which occurred after the former pleadings were filed, the right to file a supplemental complaint rests in the sound discretion of the court, p. 327.</p> <p>2. Pleading. — Complaint. — Supplemental Complaint. — Construction.—A complaint for an injunction, on which the court issued a temporary restraining order which the defendant disregarded, and a supplemental complaint alleging the acts of defendant and demanding damages for the injuries sustained, taken together constitute the complaint in the action, p. 327.</p> <p>3. Pleading.—Complaint.—Supplemental Complaint.—The office of a supplemental complaint is to bring into the record any new facts necessary to enable the court to grant the proper relief on the facts as they then exist, p. 328.</p> <p>4. Pleading.— Complaint.— Sufficiency.— Supplemental Complaint. —Where the original complaint seeking injunctive relief states a good cause of action, and a supplemental complaint only brought into the record facts which occurred after the filing of the original complaint and sought damages for the acts therein alleged, the complaint as thus constituted entitled the plaintiff to some relief on the facts stated, and overruling a demurrer thereto was not erroneous, pp. 328, 329.</p> <p>5. Pleading.—Complaint.—Construction.—A complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated, and must be considered as a whole so as to give full relief for all injuries stated therein, p. 329.</p> <p>6. Pleading.—Complaint.—Theory.—The theory of a complaint must be determined by the court from its general scope and tenor, and not from fragmentary statements and conclusions or detached parts, p. 329.</p> <p>7. Pleading.—Complaint.-—Sufficiency.—A complaint which states one complete and sufficient cause of action will repel a demurrer addressed to the entire pleadings, p. 329.</p> <p>8. Appeal.—Theory of Trial.—Theory on Appeal.—The theory on which a cause is tried must be adhered to on appeal, p. 329.</p> <p>9. Abatement.—Action hy Corporation.—Dissolution of Corporation.—An action commenced in 1905 by a corporation whose charter expired in 1907, cannot be abated by a plea filed in 1908 on the theory that the corporation could no longer continue the business for which it was organized, since under §4050 Bums 1008, §3006 R. S. 1881, all corporations whose charter shall expire by limitation, are continued bodies corporate for three years thereafter for the purpose of prosecuting and defending suits and to settle their affairs, p. 330.</p> <p>10. Cobpobations.—Expiration of Charter.—Corporate Rights.— Under §4062 Bums 1908, §3012 R. S. 1881, providing for the appointment of a trustee or receiver, on the expiration of the charter of a corporation, to take charge of the estate and effects and to do .all things necessary for the final settlement of the business, and §4064 Burns 1908, §3014 R. S. 1881, providing for the payment of all debts and the distribution of the net balances of the property among the stockholders, all the property of such corporation passes to the trustee on his appointment, and he must take charge of and collect the debts and property due to and belonging to the corporation, prosecute and defend suits to which such corporation was a party, pay its debts and distribute the balance of the proceeds among the stockholders, p. 330.</p> <p>11. Corporations.—Easements.—Reversion on Expiration of Corporate Existence.—The easement of a corporation for a right of way for its pipe lines for the transportation of gas to its customers does not revert to the grantors of the right of way at the expiration of the corporate charter, but such easement is a property right, and passes to the trustee appointed pursuant to §4002 Burns 1908, §3012 B. S. 1881, to take charge of the estate and effects and to do all things necessary for the final settlement of its business, p. 331.</p> <p>12. Corporations.—Actions.—Expiration of Charter While Action is Pending.—Parties.—Trustee.—Where, after commencing an action the charter of plaintiff corporation expired by limitation, the trustee appointed by the court pursuant to §4062 Burns 1908, §3012 B. S. 1881, was properly made a party to the action, p. 332.</p> <p>13. Appear.—Questions Reviewable.—Demurrers.—Exceptions to Conclusions of Law.—Where there is a special finding of facts and conclusions of law thereon, and the action of the court in overruling a demurrer to the complaint or answer is called in question by the assignment of errors and presents the same question presented by the exceptions to the conclusions of law, and the latter are properly assigned as error, the court may determine the questions either by determining the correctness of the conclusions of law or the sufficiency of the complaint or answer, but need not consider both, p.332.</p> <p>14. Appear. — Review. — Evidence. — Findings. — It is only where there is no legal evidence to support a special finding, that it will be set aside on account of insufficiency of the evidence, p. 333.</p> <p>15. Eminent Domain.—Appropriation of Property.—Measure of Damages.—Where plaintiff’s right of way for gas mains was wrongfully appropriated for a railroad right of way, the measure of plaintiff’s damages was the value of the property at the time of such appropriation, p. 333.</p> <p>16. Evidence.—Opinion Evidence.—The testimony of witnesses as to the fair and reasonable market value of property wrongfully appropriated, is admissible, where such witnesses qualify themselves as to having knowledge of the value of such property in the locality in which the same is situated, p. 333.</p>

From Superior Court of Allen County; Owen N. Heaton, Judge. Action by The Monroeville Home Telephone Company against The Fort Wayne, Van Wert and Lima Traction Company and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Trial.—Conclusions of Law.—Exceptions.—Exceptions to conclusions of law based on a special finding of facts admit, for the purpose of the exception, that the facts were correctly found, p. 342.</p> <p>2. Appeal.—Review.—Findings.—Conclusiveness.—A special finding of facts supported by some evidence is conclusive on appeal, p. 343.</p> <p>3. Brokers.—Contract of Employment.—Performance.—Sale of Real Estate.—The right to a brokerage commission for the sale of real estate is dependent upon success in procuring a purchaser, and the broker is 'not entitled to a commission, regardless of the time and services devoted to procuring a customer, unless he finds one who is ready and willing to complete the purchase on the terms agreed upon. p. 343.</p> <p>4. Brokers.—Contract of Employment.—Sale of Real Estate.— Termination of Authority.—Rights of Parties.—Where plaintiffs, who had an option to sell defendant’s land, wrote defendant that they knew of no one whom they could interest in the purchase of the land and advised defendant not to hesitate in negotiating with any prospective purchaser whom defendant might have, defendant thereafter, acting in good faith, had a right to grant a new option to another broker, and, even though a sale was thereby consummated with a customer with whom the plaintiffs had been negotiating, no liability in favor of plaintiffs was thereby in= curred. pp. 344,346.</p> <p>5. Brokers.— Contract of Employment.— Performance.— Time.— Where a broker is employed to find a purchaser at a stated price and upon given terms, and has expended his time and performed labor in getting the parties interested, he will be allowed a reasonable length of time in which to complete his labors, unless a definite time has been agreed on within which he is to produce a purchaser, in which event the time stipulated is of the essence of the contract aud the broker must perform before the expiration of the time in order to entitle him to the commission, p. 345.</p> <p>6. Vendor and Purchaser.—Options.—Expiration.—An option to buy or sell real estate on or before a certain date will expire at the time mentioned without notice or declaration of forfeiture, p. 345.</p> <p>7. Brokers.—Options.—Authority to Sell.—-Revocation.—Sale hy Oion&r.—Where a broker is granted an option or authority to sell land for his principal within a given time, and he fails to make a sale within the period or a reasonable extension thereof, the principal, acting in good faith, may revoke the agency and sell to others, or even to the same person or corporation with whom the broker had been negotiating, without liability to the broker for commissions, p-. 348.</p> <p>8. Brokers.—Action for Commission.—Performance of Contract.— Evidence.—It was not erroneous, in an action for a broker’s commission, to refuse to permit a witness to testify as to the reason why a sale was not consummated by the broker within the prescribed time, since plaintiff, in accepting the option to sell, assumed the uncontrolled risk that might arise to prevent a sale, and the witness was not the purchaser and had no authority to bind it. p. 349.</p> <p>9. Appeal.—Waiver of Error.—Briefs.-—Errors assigned, but not discussed in appellant’s brief, are waived, p. 349.</p>

<p>1. Highways. — Establishment. — Remonstrance. — Appeal. —In a proceeding under the general highway aict of March 8, 1905 (Acts 1905 p. 521, §7711 et seq. Burns 1908), for the construction of a free gravel road to be paid for by taxation, persons remonstrating against the action of the board of commissioners in increasing the rate of interest on the bonds previously authorized to be issued, have a right to appeal to the circuit court from the overruling of such remonstrance, under the provisions of §7793 Burns 1908, Acts 1905 p. 521, §123, that “except as otherwise provided in this act” any person aggrieved by any decision of the. board of commissioners may appeal to the circuit court of the county, p.352.</p>

<p>1. Criminal Law.—Appeal.—Waiver of Error.—Briefs.—Error assigned in overruling a motion to quash the indictment is waived where no objection to the sufficiency of the indictment is pointed out in appellant’s brief, p. 354.</p> <p>2. Criminal Law. — Appeal. — Questions Presented. — Defective Briefs.—Although appellants’ brief neither contains the motion for a new trial nor its substance, as required by Rule 22 of the Supreme Court, the questions arising on .the overruling of appellants’ motion for a new trial are presented for consideration where the defects of appellants’ brief are supplied by the briefs of the State and the questions raised are therein discussed on their merits, p. 354.</p> <p>3. Robbery.—Indictment.—Evidence.—Sufficiency.-—Evidence that defendants stole $7.10 in money, although not definitely showing that it was money issued by the United States government, is sufficient to support a verdict of guilty upon an indictment charging the stealing of $7.10 “in lawful money of the United States of America,” since under §2058 Burns 1908, Acts 1905 p. 584, §187, the allegation that the money taken “was lawful money of the United States of America” was not necessary, p. 354.</p> <p>4. Criminal Law.—Trial.—-Venue.—Evidence.—Venue need not be established by questions and answers specifically naming the particular county and State in which the offense was committed, but it is sufficient if facts and circumstances are shown by the evidence from which the jury may find the locus delicti, p. 355.</p>

<p>1. Pleading.—Demurrer.—Joint Demurrer.—A joint demurrer to a complaint is properly overruled unless the demurrer is well taken as to all who join in such demurrer, p. 361.</p> <p>2. Mechanics’ Liens.—Enforcement.—Commencement of Suit.— Although in ordinary eases an action is not commenced until a complaint shall have been filed and a summons issued and placed in the proper officer’s hands for service, under §8299 Bums 1908, Acts 1889 p. 257, providing that mechanics’ liens may be enforced by filing a complaint within one year from the time the notice was received for record, it is only necessary that the complaint shall be filed within one year. p. 361.</p> <p>3. Abatement.—Another Action Pending.—Notwithstanding the general rule that, to abate an action on the ground of another action pending, the plaintiff must be the same in each action, where the court, following its appointment of a receiver for a railroad company, authorized a construction company to file a suit to foreclose an alleged lien against the railroad company, and pending such suit a suit was filed by mortgage trustees, who were parties to the first suit, to foreclose their mortgage, the pendency of the first suit was ground for abating the second even-though certain lien claimants were made parties who were not named as parties to the first suit, since the proceedings were in rem, and all the relief obtainable in the second action could be had in the first and any parties necessary to complete the relief to be had in the first action could be brought in by cross-complaint. p. 363.</p> <p>4. Statutes.—Construction.—Legislative Intent.—In construing a statute, the legislative intent, once ascertained, must be given effect if it is not violative of the Constitution, p. 367.</p> <p>5. Statutes.—Subjects and Title.—Constitutional Provisions.— The purpose of the requirement of Art. 4, §19, of the Constitution, that the subject of every act shall be embraced in its title, was to prevent “log rolling” legislation, to prevent surprise or fraud by means of provisions in bills of wbicb the title gives no intimation, and to apprise the people of the subject of legislation under consideration, p. 367.</p> <p>6. Statutes.—Subjects and Title.—Constitutional Provisions.— Construction.—The provision of Art 4, §19, of the Constitution, requiring the subject of an act to be expressed in its title, is generally liberally construed rather than to embarass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it was adopted, p. 367.</p> <p>7. Statutes.—Subjects and Title.—ConstiUitional Provisions.— Art. 4, §19, of the Constitution requiring the subject of an act to be expressed in its title, aims only at titles narrower than the enactment, and the unnecessary breadth of a title is ordinarily no objection thereto, p. 308.</p> <p>8. Statutes.—Construction.—Meaning of Words.—Words found in a statute will be given'their ordinary meaning unless there exists some special reason for holding otherwise, p. 368.</p> <p>9. Statutes.—Subjects and Title.—“Laborers."—Mechanics’ Liens. —The word “laborers” as found in our mechanics’ lien law previous to March, .1883, was commonly understood by the people, legislators and courts of the State to include in its definition contractors and subcontractors, as well as common manual laborers, so that the title to the act of March 6, 1883 (Acts 1883 p. 140), concerning liens of mechanics, laborers, and material men, is sufficiently broad to cover the provisions of §12 of the act, expressly giving to contractors and subcontractors a lien, and is not in conflict with Art. 4, §19, of the Constitution, requiring the subjects of acts to- be expressed in the title. (Indianapolis, eto., ■Traction Co. v. Brennan (1910), 174 Ind. 1, and cases following that case, overruled.) pp. 368, 390.</p> <p>10. Constitutional Law.—Constitutional Provisions.—Construction.—The practical construction of a constitutional provision, especially where extending over a considerable period of time, is an important factor in ascertaining the limits of legislative authority by constitutional requirements, p. 389.</p> <p>11. Statutes.—Construction.—Reenactment.—Where a statute is specifically construed by a court of last resort, and afterwards is substantially reenacted, the legislature will be deemed to have adopted such construction in the new enactment, p. 389.</p> <p>12. Statutes.—Subjects and Title.—Constitutional Provisions.— The provision of Art. 4, §19, of the Constitution, that the subject of every act shall be expressed in its title, does not require that the title of an act shall contain an index to the several provisions or an abstract thereof, since the purpose of a title is to apprise the legislators as to what the subject of legislation is, so as to put them on inquiry, and the details of the' act are to be found in the body of the act. p. 390.</p> <p>13. Statutes.—Subjects and Titles.—Words of More than One Meaning.—When a word of more than one generally understood: meaning is found in the title of a bill, the legislator is thereby put on inquiry into the body of the bill to ascertain what meaning is intended in the act. p. 390.</p> <p>14. Courts.—Rules of Decision.—Overruling Precedents.—When a court has once deliberately adopted and declared a rule, it should not be disturbed by the same court, except for very urgent reasons and upon a clear manifestation of error, p. 391.</p> <p>15. Courts.—Rules of Decision.—Overruling Precedents.—Construction of Mechanics’ Lien Act.—The facts that the mechanics’ lien laws have been practically interpreted by the people, legislatures and courts for at least seventy years as furnishing a lien for contractors and subcontractors, and were relied upon by appellants as protecting them as contractors in railroad construction, that immediately following the decision of the Supreme Court in Indianapolis, etc., Traction Co. v. Brennan (1910), 174 Ind. 1, the legislature restored the law to its former supposed efficacy, and that an adherence to the doctrine of such former decision would impose a rule of construction so strict as to seriously embarrass future legislation, present sufficient reasons for overruling such decision, and the cases following it, in so far as they hold that the act of March 6, 1883, concerning liens of mechanics, laborers, and material men, as amended, does not include contractors, subcontractors and corporations among those entitled to liens thereunder, and they are overruled, p. 391.</p>

From Decatur Circuit Court; John G. Robinson, Special Judge. Action by Francis W. Ackerman, by his next friend, Frank Hamilton, against Lawrence Fichter, executor of the last will of Elizabeth Ackerman, deceased, and others. Prom a judgment for defendants, the plaintiff appeals.

<p>1. Constitutional Law.—Subjects and Titles of Statutes.—Regulation of Coal Mines.—“Operator.”—'‘Su/perintende/nt.”—The use of the word “operators” in the title of the act of March 8, 1907 (Acts 1907 p. 193, §§8623, 8624 Burns 1908), requiring owners or operators of coal mines and other employers of labor to erect and maintain washhouses, etc., renders the title broad enough to cover the provision including the superintendent of a coal mine, so that the act is not in conflict with the provision of Art. 4, §19, of the Constitution, requiring the subject of every act to be expressed in the title, pp. 408,410.</p> <p>2. Statutes.—Construction.—The words of a statute will be construed in their plain, ordinary and usual sense, unless such construction will defeat the manifest intent of the legislature, p. 409.</p> <p>3. Statutes.—Construction óf Penal Statutes.—While a penal statute should be strictly construed, the construction should be reasonable and in accord with common sense, so as not to defeat the obvious intention of the legislature, p. 409.</p> <p>4. Constitutional Law.—Equal Protection of the Law.—Police Power.—Regulation of Coal Mines.—The act of March 8, 1907 (Acts 1907 p. 193, §§8623, 8624 Burns 1908), requiring the owners or operators of coal mines and other employers of labor to erect and maintain washhouses, etc., is not in conflict with the l'4th amendment of the Constitution of the United States, since it is a proper exercise of the police power and does not deny to coal companies the equal protection of the- law. p. 410.</p> <p>5. Constitutional Law.—Police Power.—Regulation of Business. —The 14th amendment of the Constitution of the United States neither impairs the police power of the state, nor prohibits the regulation of one class of business by special provisions, p. 410.</p> <p>6. Mines and Minerals.—Regulation of Coal Mines.—Statutes.— Definiteness.—The act of March-8, 1907 (Acts 1907 p. 193, §§8623, 8624 Burns 1008), requiring the owners or operators of coal mines to erect and maintain washhouses, and providing a penalty, is sufficiently definite in its terms and requirements, p. 411.</p> <p>7. Mines and Minerals.—Regulation of Coal Mines.—Prosecution for Failure to Maintain 'Washhouse.—Affidavit.—Sufficiency.— “Provide”.—In a prosecution for violation of the act of March 8, 1907 (Acts 1907 p. 193, §8623 Burns 1908), requiring the owners or operators of 'coal mines to erect and maintain washhouses, the affidavit was not fatally defective in charging that defendant failed and refused to “provide'’ a suitable washroom, since the word “provide” means to make, procure, or furnish for future use, prepare, p. 411.</p> <p>8. Constitutional Law.—TaJcmg Property Without Compensation. —Regulation of Coal Mines.-—The act of March 8, 1907 (Acts 1907 p. 193, §§8023, 8624 Bums 1908), requiring the owners or operators of coal mines to erect and maintain washhouses, being a proper exercise of the police power, is not open to the objection that it contravenes the 14th amendment to the Constitution of the United States in that it deprives the owner or operator of property without compensation, p, 411.</p> <p>9. Constitutional Law.—Judicial Functions.—Construction of Statutes.—The legislature alone may determine, inside the limits fixed by the Constitution, when public safety or welfare requires the exercise of the police power, and the courts can only interfere when a statute conflicts with the Constitution, and have nothing to do with the wisdom, policy or necessity of the enactment. p. 411.</p> <p>10. Constitutional Law.—Statutes.—Exercise of Statute.—Regulation of Goal Mines.—The act of March 8, 1907 (Acts 1907 p. 193, §§8623, 8G24 Burns 1908), requiring the owners or operators of coal mines to erect and maintain washhouses, on the petition of the employes, does not violate Art. 1, §25, of the Constitution, prohibiting the passing of laws to take effect upon any other authority than that provided in the Constitution, p. 412.</p> <p>11. Criminal Law.—Appeal.—Revdew.—Questions Considered.—In a prosecution for failure to provide a washhouse, on the petition of the employes of a coal mine, as required by §§8623, 8624 Bums 1908, Acts 1907 p. 193 appellant’s contention that the statute is uncertain in that it makes no provision as to when the act must be complied with, will not be considered on appeal, where it appears that more than a year had elapsed since he was petitioned to provide the washhouse and that he made no effort to comply with the law. p. 413.</p> <p>12. Criminal Law.—Statutes.—Definiteness.—The true test of a criminal law as to its effect, is that it shall state the crime with such certainty that the person upon whom it operates, may, with reasonable certainty, ascertain what the statute requires to be done. p. 413.</p>

<p>From Randolph Circuit Court; Joseph G. Leffler, Special Judge.</p> <p>Action by William B. Pace, administrator of the estate of Jesse Pace, deceased, against The Cleveland, 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>

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Prosecution by the State of Indiana against William Mercer. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Pleading.— Complaint.— Supplemental Complaint.— Bight to File.—The right to file a supplemental complaint under §408 Burns 1908, §399 R. S. 1881, providing that the court may, on motion, allow supplemental pleadings, rests in the sound discretion of the trial court, p. 431.</p> <p>2. Pleading.—Supplemental Pleadings.—Motion for Leave to File. —Form.—Permission to file a supplemental pleading may be obtained on oral motion, since §662 Burns 1908, Acts 1903 p. 338, §2, providing that every motion to insert new matter or to strike out any part or parts of any pleading, etc., shall be made in writing, has no application to a motion for leave to file a supplemental pleading, p. 432.</p> <p>3. Pleading.— Complaint.— Supplemental Complaint.— Theory.— Where the original complaint in an action for damages caused by the reconstruction of a railroad, filed while the work was in progress, alleged that certain wrongful acts were being committed- and were resulting in certain elements of damage, the theory of the action was not changed by a supplemental complaint which alleged the continuance of the same wrongs, and the completion of the work, and counted upon the same elements of damage as having been fully accomplished, p. 432.</p> <p>4. Eminent Domain.—Condemnation for Bailroad Bight of Way. —Proceedings.—Filing of Map and Profile.—Effect.—Under §5194 Burns 1908, §3902 R. S. 1881, providing that every railroad compiany, before proceeding to construct a part-of its road into or through any county, shall file a map and profile of the intended route in the office of the clerk of such county, the filing of such profile need not precede the condemnation of land for the right of way; and, since the instrument of appropriation deposited with the clerk pursuant to the provisions of §5236 Burns 1908, §3907 R. S. 1881, and the order to appraisers issued pursuant to such instrument, are alone to be looked to for a description of what is taken and for fixing the basis of assessing the damages, the mere filing of a map and profile in accordance with said §5194 Burns 1908, §3902 R. S. 1881, does not in any way limit the manner of the construction of the railroad, nor will it operate to limit the amount of damages to an,amount proportioned to an easement of the dimensions shown by such map and profile, p. 438.</p> <p>5. Eminent Domain.—Rights Acquired.—Where there is no stipulation or agreement as to the manner of construction, the condemning party acquires the right to construct its works in any way it pleases, which is not negligent or unlawful and does not violate the rights of adjacent landowners, p.439.</p> <p>6. Eminent Domain.'—Assessment of Damages.—Where there is no stipulation or agreement as to the manner of constructing the work on land taken under condemnation proceedings, the damages are to be assessed on the basis of the most injurious mode of construction that is reasonably possible, except that damages flowing from a violation of the obligations resting on adjoining proprietors are not ordinarily included, p. 439.</p> <p>7. Eminent Domain.—Damages.—Elements Included in Assessment.—As a general rule in condemnation proceedings, all damages, present or prospective, that are the natural or reasonable Incident of the work to be constructed, not including such as may arise from negligence, or unskillfulness, or from the wrongful act of those engaged in the work, must be assessed, pp. 441, 443.</p> <p>8. Eminent Domain.—Condemnation for Railroad Right of Way. —Extent of Rights in Property Taken.—-Although it takes only an easement, a railroad company, in the absence of any limita-, tions by statute or the condemnation proceedings, acquires by the appropriation the absolute right to take so much of the earth and materials within the width and length of the right of way as it may be necessary or convenient to remove in constructing and repairing its roadbed and use it at other places, p. 442.</p> <p>9. Eminent Domain.—Condemnation for Railroad Right of Way. —Reconstruction of Road.—Rights of Successor to Condemning Party.—Where a railroad company by virtue of condemnation proceedings acquired the right to use, on other parts of its road, the materials removed from the right of way in making its grade when the road was constructed, its successor, in the absence of a limitation in the statute, or in the appropriation proceeding, excluding it, had the same right as to materials moved iiu reconstructing and changing the grade, p. 442.</p> <p>10. Appeal.'—Revieio.—Vei'diet.—Evidence.—A verdict against a railroad company, awarding damages for materials taken from the right of way in reconstructing the road, cannot be sustained in the absence of proof of the value of the materials removed, p. 442.</p>

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action, by Fred Freeman and others against Joseph E. Pierce and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Statutes.—Subjects and Title.—Sufficiency.—Corrupt Practices Act.—The criminal features of the Corrupt! Practices Act (Acts 1911 p. 288), which is entitled “An act concerning corrupt practices at elections, caucuses and primaries, and the collection and disbursement of campaign funds”, are sufficiently covered by such title, within the requirements of Art. 4, §19, of the Constitution that the subject of every act must be expressed in the title, p. 450.</p> <p>2. Statutes.—Subjects and Title.—Sufficiency.—Constitutional Provisions.—Under Art 4, §19, of the Constitution requiring the subject of every act to be expressed in the title, a detailed statement of the subject of legislation is not required, but the title of an act will be sufficient if it expresses the general subject of the act, and if all the provisions embraced in the act are fairly and naturally germane to the subject so expressed, p. 451.</p> <p>3. Elections.—Corrupt Practices.—Indictment.—Sufficiency.—An indictment charging defendant with the violation of the Corrupt Practices Act (Acts 1911 p. 288) at a primary election, alleging that such election had been theretofore regularly called by the authorized representatives of the party for the purpose of nominating candidates, was sufficient without setting out each step taken by the authorities, p. 451.</p> <p>4. Evidence.—Judicial Notice.—StaUites.—The court takes judicial notice of the statutes of the State, p. 451.</p> <p>5. Elections.—Corrupt Practices.—Indictment.—Averments.—Sufficiency.—In an indictment for violating the Corrupt Practices Act (Acts 1911 p. 288) at a primary election held by a certain political party, the averments that such election had theretofore been regularly called by the authorized representatives of said party for the purpose of nominating candidates, etc., is not a recital, but a direct averment, p. 451.</p> <p>6. Elections.—Corrupt Practices.—Indictment.—Sufficiency.—Judicial Notice.—An indictment charging a violation of the Corrupt Practices Act (Acts 1911 p. 288) at a Democratic primary election, is sufficient without averring facts showing that such party was entitled to hold a primary election, since the court judicially knows what parties cast sufficient votes at the last preceding general election to be entitled to hold a primary, p. 452.</p> <p>7. Elections.—Primary Elections.—Judicial Notice.—The court knows judicially that the general elections are preceded by primary elections, at which candidates to be voted for at such general elections are selected by the respective parties, p. 452.</p> <p>8. Indictments.—Affidavits.—Allegations.—No presumption of law, or matter of which the court takes judicial notice, need be set out in an indictment or affidavit, p. 452.</p> <p>9. Wobds and Phbases.—“Elections”.—Primary Eleclkms”.—The words “primary election” mean the act of choosing candidates by respective political parties to fill the various offices, as the word “election” means the final choice of electors to fill such offices, p. 452.</p> <p>10. Elections.—Corrupt Practices.—Indictment.—Sufficiency.—An indictment for violating the Corrupt Practices Act (Acts 1911 p. 288) charging that defendant, a candidate at a primary election, unlawfully employed another to work for his nomination. was not insufficient for failure to define the kind of work required of the employe, p. 452.</p> <p>11. Indictments.—Requisites.—Negativing Exceptions.—An indictment need negative only those exceptions of the statute which are closely connected with the enacting clause, or in the same clause that creates the offense; other exceptions being merely matters of defense, p. 453.</p> <p>12. Elections.— Corrupt Practices.— Indictments.— Sufficiency.— An indictment for violation of the Corrupt Practices Act (Acts 1911 p. 288) at a primary election, is sufficient without alleging the particular election to which the primary was preliminary, p. 453.</p>

<p>1. Municipal Cobpobations. — Powers. — Municipal corporations have only such powers as are granted in express words, those necessarily or fairly implied, or incidental to the powers expressly granted, and those that are essential to the declared objects and purposes of the corporation, p. 457.</p> <p>2. Municipal Cokpobations. — Poioers. — Implied Powers. — Construction.—No incidental powers are implied except those essential to the continued existence of the municipality and to the accomplishment of the purposes of its creation, and doubtful claims of authority are-resolved against the corporation, p.457.</p> <p>3. Municipal Cobpobations.—Powers.—Statutes.—Presumptions.— Where a statute enumerates specific powers of a city, with reference to a certain subject, a power not enumerated is presumably withheld, p. 457.</p> <p>4. Municipal Cobpobations.—- Powers.— Sprinkling Streets.— Ordinance Compelling Street Car Company to Sprinkle.—Validity.— Under the provisions of §8655 Burns 1908, Acts 1905 p. 219, §55, authorizing cities to require interurban or street car companies to keep gutters and street crossings clean along their right of way, to carry out the objects of the corporation, not particularly specified, and to declare what shall constitute a nuisance, and provide for its prevention and abatement, and the provisions of §8961 Burns 1908, Acts 1905 p. 219, §267, giving cities exclusive power over streets, construed with §§8696, 8697, 8742-8744, 8963 Burns 1908, Acts 1905 p. 219, §§93, 94, 135-137, 268, on the subject of street sprinkling in cities and towns, and providing for the assessment of the cost against abutting real estate, or the payment of same out of the municipal treasury, a city is without authority to enact an ordinance to compel a street car company to sprinkle the space between its tracks, p. 457.</p>

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Prosecution by the State of Indiana against Otho Glover. From a judgment of conviction, the defendant appeals.</p>

From Vanderburgh Circuit Court; C. A. DeBruler, Judge. Proceedings by Lena Rosenmeier and another for the establishment of a boundary line, and from a judgment of the circuit court, on the appeal of Christian Mahrenholz, finding against the survey and establishing the boundary line, this appeal is prosecuted. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Animáis.—Contagious Diseases.—Destruction of Diseased Animals.—-Appraisal.—Under the act of March 8, 1909 (Acts 1909 p. 443) authorizing appraisal of diseased animals ordered to be killed, and providing that the owner of a tubercular animal shall have a reasonable time within which to prepare it for market, subject to inspection, and may retain it for breeding purposes under conditions approved by the State Veterinarian, or may keep it for dairy purposes if the milk is pasteurized, the owner of a diseased animal which has merely been condemned by the veterinarian is not entitled to an appraisement thereof, since, until the animal is ordered killed, the owner is not deprived of the right to prepare it for market within a reasonable time, nor of his right to retain it for the purposes and under the conditions prescribed in the statute, p. 481.</p>

From Huntington Circuit Court; Samuel E. Cook, Judge. Action by John L. Priddy and others against the Wabash Railroad Company and others. From a judgment for plaintiffs, the defendants, except the Louisville and Nashville Railroad Company, appeal. (Transferred from Appellate. Court under §1405 Bums 1908, Acts 1901 p. 590.)

From Superior Court of Allen County; Carl Yaple, Judge. Action for mandamus by the State of Indiana, on the relation of David E. Spindler, as superintendent of the construction of Willow Creek Ditch, against William H. Scheiman, Treasurer of Allen County, and others. From a judgment for defendants, the relator appeals.

From Vanderburgh Circuit Court; A. C. Hawkins, Judge Pro Tem. Action for mandamus by the State of Indiana, on the relation of Jacob Eichel, against the Evansville Union Stockyards Company. From a judgment for relator, the defendant appeals.

<p>From Newton Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by The C. Callahan Company against Jacob D. Rich and another. From a judgment for plaintiff, the defendant, Rich, appeals.</p>

From Morgan Circuit Court; Nathan A. Whitaker, Judge. Action in mandamus by the State of Indiana, on the relation of Jacob Ferguson, against the Board of Commissioners of the County of Morgan and others. Prom a judgment for defendants, the relator appeals.

From Laporte Circuit Court; James F. Gallaher, Judge. Proceedings by John W. Denham and others for the establishment of a drain, against which Will Orr and others remonstrated. From a judgment for remonstrants, the petitioners appeal.

<p>From Adams Circuit Court; R. H. Hartford, Special Judge.</p> <p>Prosecution by the State of Indiana against William Ward. From a judgment of conviction, the defendant appeals.</p>

<p>From Starke Circuit Court; Francis J. Vurpillat, Judge.</p> <p>Prosecution by the State of Indiana against George Shorter. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law.—Appeal.—Presentation in Trial Court.—Evidence.—Ruling on Offer to Exhibit.—Briefs.—Alleged error of the trial court in refusing to permit a certain exhibit to be made to the jury is not presented for review, where neither the offer to make the exhibit, nor any ruling with reference thereto, is disclosed in appellant’s brief, p. 533.</p> <p>2. Criminal Law .--Appeal.—Questions Reviewable.—Briefs.—No reviewable question is presented as to the admission of evidence of specific acts bearing on defendant’s character, and as to the refusal of evidence explanatory of such acts, where it is not shown by appellant’s brief that the admitted evidence was objected to, or that an offer of evidence explanatory thereof was made. p. 533.</p> <p>3. Criminal Law.—Appeal.—Questions Revie<wable.—Briefs.—No question is presented on alleged error in' permitting certain questions on cross-examination, where appellant’s brief fails to set out the substance of the objectionable questions, the objections thereto, and the court’s ruling thereon, p. 534.</p> <p>4. Appeal.—Briefs.—Sufficiency.—Rules of Court.—The rules of the Supreme Court contemplate the points on which appellant relies must be definitely and specifically stated in his brief, and that the brief be so prepared that each judge may intelligently consider each question presented by a consideration of the brief alone, p. 534.</p> <p>5. Criminal Law.—Appeal. — Revi&uy.<—Improper Argument.— Waiver of Error.—The impropriety of statements made in argument by the prosecuting attorney, and the failure of the court, on objection by defendant, to take any action thereon, even though prejudicial to the defendant, will not justify a reversal where no motion by defendant to discharge the jury or set aside the submission of the cause is disclosed by the record, p. 534.</p> <p>G. Criminal Law.—Appeal.—Record.—Questions Reviewable.—Alleged impropriety of jurors in reading newspaper articles prejudicial to defendant cannot be reviewed on appeal, where the only evidence of the fact is an affidavit filed in support of the motion for a new trial, since only matters verified by the record can be considered, p. 535.</p> <p>7. Criminal Law.—Instructions.—Character Evidence.—An instruction in a prosecution for murder, that evidence in regard to the character of the defendant for peace and quietude should be considered by the jury in determining the guilt or innocence of the defendant, but if the jury should be satisfied of his guilt beyond a reasonable doubt then his previous good character would not avail him as a defense or entitle him to an acquittal, does not preclude the consideration of evidence of good character in determining the degree of homicide, nor is it objectionable, when considered with the other instructions, as failing to state that the jury should be satisfied of the defendant’s guilt by the evidence given, p. 535.</p> <p>8. Criminal Law.—Instructions.—Incomplete Instructions.—An instruction correctly informing the jury that good character would not entitle a guilty defendant to an acquittal and would not constitute a defense, is not objectionable for failure to state that good character should be considered in determining the degree of guilt, in the absence of a request for such further instruction, p. 536.</p> <p>9. Criminal Law.—Instructions.—-Assuming Facts.—In its instructions to the jury the court is warranted in assuming facts shown by undisputed evidence, p. 536.</p> <p>10. Criminal Law.—Appeal.—Objection to Instructions.—Presentation Below.—Appellant in a criminal case cannot complain of alleged error in failing to instruct the jury on the subject of presumption of innocence, where the record discloses no objection or exception to the court’s action in this respect previous to the filing of the motion for new trial, and appellant tendered no instruction on the subject, p. 536.</p> <p>11. Criminal Law.—Venue.—Change of Venue.—Grounds.-—The actual existence of such prejudice in a county against colored people that a negro, charged with murder, could not obtain a fair trial there, affords to such defendant the absolute right to demand a trial of the cause in some other county, p. 537.</p> <p>12. Criminal La,w.—Appeal.—Fvidence.—-Verdict.—A verdict of guilty, supported by the evidence, will not be set aside for insufficiency of evidence, even though such evidence is conflicting, p. 537.</p> <p>13. Criminal Law.—Judgment.—Penalty.—Disfranchisement.-—In rendering judgment on a verdict of guilty of murder, the court has no authority to adjudge that defendant be disfranchised, since the statute fixing the penalty for murder contains no provision for such punishment, and §6877 Burns 1908, §4681 It. S. 1881, concerning elections and providing that every person undergoing a sentence of imprisonment shall be disfranchised during the period of such imprisonment, merely has the effect of prohibiting all persons from voting who, at the time, are in prison as a result of conviction for a crime or misdemeanor, p. 537.</p> <p>14. Criminal Law.—Appeal.—Disposition.—Affirmance in Part.— Though the trial court erred in adjudging disfranchisement and ineligibility to hold office, as a part of the punishment in rendering judgment on a verdict of guilty of murder in the second degree, but in other respects the judgment is correct, it will be reversed as to so much as adjudges disfranchisement and ineligibility to hold office, and affirmed as to the remainder, p. 538.</p>

From Montgomery Circuit Court; Jere West, Judge. Action by Fannie Thompson against Stella. Wasson and others for partition of real estate. From a judgment for plaintiff, defendants, Andrew B. Davis and another, appeal.

From Miami Circuit Court; J. M. Tillett, Judge. Action by the Winnemucca Water and Light Company against tbe Model Gas Engine Works. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Wabash Circuit Court; A. H. Plummer, Judge. Action by George P. Dykeman and others against Albert G. Jenkines, executor of the will of David D. Dykeman, deceased, and others. From a judgment for defendants, the plaintiffs appeal.

<p>From Pike Circuit Court; John L. Bretz, Judge.</p> <p>Prosecution by the State of Indiana against Max Walther and another. Prom a judgment of conviction, defendants appeal.</p>

<p>1. Pleading.—Demurrer.—Admissions.—A demurrer to á pleading admits only the facts well pleaded, p. 571.</p> <p>2. Appeal.—Questions Reviewahle.—Constitutionality of Statute.— The question of the constitutionality of a statute is never considered on appeal unless the record imperatively requires it by showing some deprivation o'f a personal or property right guaranteed by the Constitution, p. 571.</p> <p>3. Pleading. — Complaint.—Sufficiency.—Conclusions.—An allegation which is a mere conclusion and not warranted by the facts alleged, cannot he considered in determining the sufficiency of a coniplaint. p. 572.</p> <p>4. Attoenet and Client.—Services.—Right to Compensation.— Defense of Paupers.—The professional services of a lawyer cannot be demanded without just compensation, and he cannot be compelled to render gratuitous services for pauper defendants in criminal cases, p. 572.</p> <p>5. Appeal.—Record.—Complaint.—Questions Revi&wahle.—Constitutionality of Statute.—In an action against a county for legal services’ Tendered t‘o a pauper defendant in a criminal cas'e, where the facts well pleaded show that plaintiff’s services were voluntarily rendered, the court on appeal is without power to pass on the constitutionality of §5944 Burns' 1908, Acts 1899 p. 343, §27, providing that no court of any county shall have power to bind the county, except by judgment rendered in a cause where the court has jurisdiction, to any extent beyond the amount of money already appropriated for the purposes of such court, p. 572.</p>

<p>1. Indictment.—Publicity.—Am indictment for violation of the Corrupt Practices Act (Acts 1911 p. 288), charging that defendant . unlawfully gave and provided whiskey, beer and lunch to certain persons, and to divers other persons unknown, for the purpose of influencing their votes at a primary election, is not objectionable as charging separate offenses in furnishing such lunch, etc., to each individual named, p. 574.</p>

<p>1. Burglary.—Evidence.-—Sufficiency.—Evidence showing an attempt in the night time to pry open the door of a business room, the approach of an officer, and the flight of the accused, is insufficient to show the crime of burglary, or a felonious breaking and entry with intent to commit a felony, p. 575.</p>

From Fayette Circuit Court; Douglas Morris, Special Judge. Action by David W. Andre against John G. Murray and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1908, Acts 1901 p. 565.)

From Allen Circuit Court; E. O’Rourke, Judge. Action for divorce by Christian Snider against Lavina Snider. From an order for the payment of suit money for defendant, the plaintiff appeals.

<p>1. Criminal Law.—Appeal.—Briefs.—Failure to Comply With Court Rules.—Where the only error assigned is in overruling the motion for a new trial, and neither the motion nor its substance is set out in appellant’s brief, but the same is merely referred to under the heading “Statement of the Record” as being set out in full at certain pages of the record, and the “Points and Authorities” consist merely of statements of abstract legal propositions without any information as to their intended application, such brief is insufficient under the rules of court to present any question for review, notwithstanding under the heading “Argument” appellant sets out certain instructions and asserts error in the giving of qaeh .of them, and adduces reasons in support thereof, p. 591.</p> <p>2. Courts.—Supreme Court.—Hules.-—The rules of the Supreme Court aire binding on litigants, p. 592.</p>

<p>From Superior Court of Vigo County; John U. Cox, Judge.</p> <p>Action by McClelland DeArmey against The Domestic Block Coal Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under Clause 2, §§1394 Burns 1908, Acts 1901 p. 565.)</p>

<p>1. Mandamus.—Complaint.—Sufficiency.—Where defendant voluntarily appeared and filed demurrer to a complaint for a writ of mandamus, the sufficiency of the complaint must be determined as in any other action, p. 631.</p> <p>2. Corporations.—Stockholders.—Unauthorized Transfer of Stock on Corporation’s Books.—Mandamus.—Complaint.—A stockholder whose certificate of stock recites that such stock is transferable only on the books of the corporation in person or by attorney and on surrender of such certificate, may compel the corporation by mandamus to recognize him as a stockholder and to grant the rights and privileges due to a stockholder, where his stock has been transferred on the books of the corporation without his authority and he still retains his certificate, so that a complaint for a writ of mandate showing a transfer of plaintiff’s stock under such circumstances is sufficient as against a demurrer, p. 631.</p> <p>3. Corporations.—Stock.—Transfers.—Where a stock certificate issued by a corporation provided that the stock was transferable only on the books of the corporation in person or by attorney and on surrender of the certificate, the corporation is charged with notice of such provision and cannot make a transfer that is binding on the holder of such certificate without the same being surrendered, especially where the evidence shows such transfer to have been unauthorized, p. 637.</p> <p>4. Corporations.—Stock.—Transfers.—Evidence.—In an action in mandamus by a stockholder to compel the corporation to recognize him as a stockholder, where defendant alleged that plaintiff’s stock had been transferred on the books of the company, the testimony of one of defendant’s directors to the effect that at the time of the alleged transfer, the plaintiff’s son, who made such transfer, stated that he was signing his mother’s name without her knowledge or consent, is conclusive against the defendant as showing notice that the transfer was unauthorized, p. 638.</p> <p>5. Appeal.—Review.—Evidence.—Bindings.—The finding of the trial court on a question of fact as to which the evidence is conflicting, is conclusive on appeal, since the Supreme Court will not weigh the evidence, p. 638.</p> <p>■6. Corporations.—Stock.-—Unauthorized Transfer.—Effect.—Compelling a corporation by mandamus to recognize plaintiff as a stockholder, notwithstanding a transfer of plaintiff’s stock to a third person appears upon the books of the corporation, does not have the effect of working an increase of defendant’s stock, where the transfer was unauthorized by plaintiff, since plaintiff’s stock was never legally cancelled and the stock issued pursuant to such transfer was illegal and void; nor can plaintiff’s rights be affected by the fact that such illegal and void stock remains uncancelled, p. 639.</p>

<p>1. Trial.—Directing Verdict.—The action of the trial court in directing a verdict for defendant is not erroneous unless the direct evidence most favorable to plaintiff, together with facts reasonably and fairly inferable from them, taken in connection with uncontroverted facts, would have warranted a finding for plaintiff, p. 642.</p> <p>2. Master and Servant.—Injury to Servant.—Common-Law Action.—Doctrine of Bes Ipsa Loquitur.—The doctrine of res ipsa loquitur cannot ordinarily be invoked in a common-law action by a servant against the master, although it may be invoked where the cause of action is predicated on the violation of a statute which absolves the servant from the consequences of contributory negligence and assumed risk. p. 642.</p> <p>3. Master and Servant.—Injury to Servant.—‘Proximate Cause.— Where a servant was injured by an explosion of gas while he was on top of a tank measuring the depth of oil therein through a manhole, the failure of the master to install a gauge by which the depth of the oil could be determined without going on top of such tank was not the proximate cause of the injury- P- 643.</p> <p>4. Master and Servant.—Injury to Servant.—Negligence of Master.—Mvidence.—Directing Verdict.—Where the complaint, in an action by a servant for injuries caused by the explosion of gas in an oil .tank, charged negligence of the. master in locating the tank near a railroad and near a smokestack, and there was no proof that the gas was ignited by sparks from a locomotive or from the smokestack, the evidence was insufficient to authorize a verdict for plaintiff, and directing a verdict for defendant was not error, p. 643.</p> <p>5. Master and Servant.—Injury to Servant.—Proximate Cause.— In an action by a servant for injuries caused by an explosion of gas which was being generated in an oil tank, where there was no evidence that the explosion was caused by gas pressure, the master’s failure to install a thermometer to measure the temperature of the oil was not the proximate cause of the injury, p. 643.</p>

From Lake Superior Court; Virgil S. Reiter, Judge. Action by the State of Indiana, on the relation of John Wesley Reed and Edwin W. Bump, partners, doing business under the firm name and style of Reed-Bump Construction Company, against the Board of Commissioners of the County of Lake. From a judgment for relators, the defendant appeals.

From Monroe Circuit Court; James B. Wilson, Judge. Proceeding by Philip Kemp and others against Theodore Kruse, commenced before the board of commissioners of Brown County, to ascertain, describe and enter of record a certain highway. Prom a judgment of the circuit court in favor of the petitioners, this appeal is prosecuted.

<p>From Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Prosecution by the State of Indiana against Henry W. Niswonger. From a judgment of conviction, the defendant appeals.</p>

From Pulaski Circuit Court; John C. Nye, Judge. Action by Asa J. Murray ,and others against. James A. Gault and others. Prom a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1908, Acts 1901 p. 565.)

From Marion Circuit Court (20,337); Charles Remster Judge. Application for a writ of habeas corpus by Louis Rochelle against Martin J. Hyland and others. Prom a judgment for the applicant, the defendants appeal.

<p>1. Criminal Law.—Motion in Arrest of Judgment.—Sufficiency of Indictment.—Although an indictment is not subject to the same test by motion in arrest, as it is by motion to quash, under §2159 Burns 1908, Acts 1905 p. 584, §283, it must on motion in arrest state facts sufficient to constitute a public offense, p. 699.</p> <p>2. Indictments.—Defects.—Aider by Verdict.■—Motion to Quash.— Motion in Arrest.—A material fact constituting the offense, if stated in a defective manner or form, may render the indictment insufficient on a motion to quash, while on a motion in arrest such defect would be cured by verdict, p. 699.</p> <p>3. Indictment.—Sufficiency.—Initial Attach by Motion in Arrest. —Technical Defects.—A fact fairly and rationally inferable from facts pleaded, though stated argumentatively and indirectly, may be deemed as averred, especially when the indictment is first assailed by motion in arrest, since in such case mere technical defects should be disregarded, p. 699.</p> <p>4. Criminal Law.—Obtaining Money Under False Pretenses.— Motion m Arrest of Judgment.—Indictment.—Failure to Aver Falsity of Pretenses.—An indictment for obtaining money under false pretenses must aver that the pretenses upon which the money was obtained were false, and where it is averred that defendants falsely pretended, etc., but it is in no way charged that the pretenses were false, the indictment was fatally defective on a motion in arrest of judgment, p. 700.</p>

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

<p>From Jasper Circuit Court; E. B. Sellers, Special Judge.</p> <p>Proceedings instituted before the Board of Commissioners of Jasper County by Everett Halstead and others for the improvement of a certain highway, against which Almira M. Stockton and others remonstrated. From a judgment of the circuit court against the remonstrants, this appeal is prosecuted.</p>

From Marion Circuit Court (19,681) ; Charles Remster, Judge. Action by the Indianapolis Mortar and Fuel Company against the Illinois Surety Company and others. From a judgment for plaintiff, the defendants appeal.

From Floyd Circuit Court; Harry C. Montgomery, Special Judge. Prosecutions by the State of Indiana against John M. Paris. From a judgment in each case quashing the indictment, these appeals are prosecuted.

<p>From Floyd Circuit Court; Harry C. Montgomery, Special Judge.</p> <p>Prosecution by the State of Indiana against John M. Paris. From a judgment quashing the indictment, this appeal is prosecuted.</p>

From Floyd Circuit Court; Harry C. Montgomery, Special Judge. Prosecutions by the State of Indiana against Claude M. Sittason. From a judgment in each case quashing the indictment, these appeals are prosecuted.