Volume 181 — Indiana Reports

From Tipton Circuit Court; Leroy B. Nash, Judge. Action by Martin V. Newcomer and another against Jefferson Township, Tipton County. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

Prom Huntington Circuit Court; Levi Mode, Special Judge. Proceeding by the City of Huntington for the construction of a sewer. Prom a judgment of the circuit court modifying and reducing the assessments against the property of John Q. Cline and others, the city appeals. (Transferred from the Appellate Court under §1394 Burns 1908, Acts 1901 p. 565.)

<p>1. Sales. — Breach of Warranty. — Evidence of Value. — Sale Price. —In an action for a breach of warranty in the sale of goods, the sale price is prima facie their value had they been as warranted. p. 10.</p> <p>2. Sales. — Breach of Warranty. — Continuing Warranty. — In an action for a breach of warranty in the sale of hay, the question of whether the warranty was a continuing one was not essential to plaintiff’s recovery, where there was abundant evidence from which the court was warranted in inferring that the defect in quality existed at the time of the sale. p. 10.</p> <p>3. Sales. — Action for Breach of Warranty. — ■Evidence.—Suffldeucy. — Warranty.—In an action for a breach of warranty in the sale of clover hay, where the evidence showed that the hay was in a barn and mostly covered with timothy, that the purchaser walked across the hay and was afraid that it was not good, that the seller thereupon said “this hay has got to be number one”, that the purchaser then agreed to take it if the seller “would make it good”, to which the seller replied that if it was not good, it was his hay, the court was warranted in finding that the representation constituted a warranty, p. 11.</p> <p>4. Sales. — Warranty.—Duty of Inspection. — Where there is an express warranty as to the quality of goods sold, the purchaser is under no duty to make an inspection, p. 12.</p> <p>5. Sales. — Action for Breach of Warranty. — Proof.—Variance.— If a complaint for breach of warranty counts on an oral warranty, there can be no recovery on evidence showing that the contract of sale was in writing, p. 12.</p> <p>6. Appeal. — Waiver of Error. — Briefs.—A chattel mortgage relied upon by appellant as constituting a contract of sale will not be considered on appeal, where neither the mortgage nor its substance is set out in his brief, as required by clause 5, Rule 22 of the Supreme Court, p. 12.</p> <p>7. Account Stated.— Evidence.— Presumptions.— On a showing' that plaintiff:, after becoming aware of his cause of action against defendant for a breach of warranty in the sale of hay, continued to occupy the defendant’s farm, and that thereafter annual settlements were had, at some of which plaintiff executed notes to defendant for balances, a presumption arises that all accounts were included in such settlements and that any former account due plaintiff from defendant was paid, but such presumption is not conclusive, p. 12.</p> <p>8. Appeal. — Revieio.—Findings.—OoncUisiveness.—A finding of the trial court cannot be reviewed on appeal where there was some evidence to support it. p. 13.</p>

Prom Clark Circuit Court; Harry C. Montgomery, Judge. Action by James P. Long and others against Henry P. Schowe. Prom a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Criminal . Law. — Pleading.—Cei-tainty.—The code of criminal procedure requires no greater degree of certainty in criminal pleadings than in civil ones, and, as against a motion to quash, they need be certain only to a common intent, p. 25.</p> <p>2. Criminal Law. — Pleading.—Inferences.—A fact reasonably inferable from those pleaded, though stated indirectly and argumentatively may be deemed as averred, p. 25.</p> <p>3. Indictment.— Requisites and Sufficiency.— An indictment is sufficient where the material averments are stated with such certainity as to apprise the defendant of the nature and charaeter of the charge against him, and as to enable the court to pronounce judgment upon a conviction “according to the right of the case”, p. 26.</p> <p>4. Arson. — Indictment. — Allegations. —- Sufficiency. — While it is essential that an indictment charging one with setting fire to his own property should allege that the property was insured against loss or damage by fire, an indictment alleging that the property was insured for a certain sum in a named fire insurance company, and that it was fired by defendant with intent to defraud that company, was sufficient, since the name of the eompany standing alone, would warrant the inference that the insurance was against fire loss, and the further allegation that the property was fired to defraud that company compels such inference, p. 26.</p> <p>5. Akpeai,. — Questions Presented. — Briefs.—No question is presented on the giving of instructions where appellant’s brief, under “points and authorities” merely asserts that the court erred in giving certain instructions on its own motion, and no particular defect is pointed out or reason assigned for a review of the court’s action in relation to such instructions, p. 27.</p>

<p>1. Insurance. — Control and Regulation. — Stock Companies. — Dissolution. — Venue.—Under §4691 Burns 1908, Acts 1903 p. 45, providing that when any life insurance company organized or doing business under the act of 1899 (Acts 1899 p. 30, §4678 ei seq. Burns 1908), shall be found to have assets of less than three-fourths of the amount of its liabilities, exclusive of capital stock, the Auditor of State shall report to the Attorney-General, who shall, if he deems advisable, apply to the circuit or superior court of the county, where the principal office of such company is located, for a receiver, proceedings for the dissolution of such a company should be brought in the county in which it maintains its principal office, and not in any other county, and such was the evident intention of the legislature as- shown by §§18, 21 of said act of 1899 (§§4695, 4698 Burns 1908), specifying that on retiring from, business, and in suits to recover penalties, the proceedings shall be instituted in the county where the company’s principal office is located, p. 31.</p> <p>2. Action. — Jurisdiction.—Statutes.—Construction.—Where a statute specifically provides a remedy and provides in what court such remedy may be enforced, it excludes all other remedies and all other courts under the maxim expressio unius est exclusio alter-ms. p. 33.</p> <p>3. Insurance. — Control and Regulation. — Stock Companies. — Dissolution. — Venue.—Section 311 Burns 1908, §309 R. S. 1881, providing that a corporation may be sued in any county in the State where it has an office or agency for the transaction of business, does not authorize the bringing of a suit for the dissolution of an insurance company in any such county, since it expressly limits actions that may be brought in any county where the corporation has an office or agency to actions arising out of, or connected with, the business of such office or agency, p. 33.</p> <p>4. Corporatoins. — Action.—Service on Agent. — Actions may be instituted by service of summons on an agent only in actions growing out of, or directly connected with the business of his office or agency, p. 33.</p> <p>5. Corporations.— Powers and Liabilities.— Action.— Venue.— At common law a eorxioration could be sued only in the county where its corporate property was situated, or where it had its principal place of business, and under statutory provisions it may be sued in other forums only as therein provided, p. 34.</p> <p>6. Pleading. — Plea in Abatement. — Answer in Bar. — Jurisdiction of Court. — The question of the court’s jurisdiction to hear and determine a cause may be raised either by plea in abatement or answer in bar. p. 34.</p> <p>7. Insurance. — Control and, Regulation.- — Stock Companies. — Dissolution. — Authority of Attorney-Q-eneral. — Statutes.—The sole authority of the Attorney-General to bring a suit for the dissolution of an insurance company under §4691 Burns- 1908, Acts 1903 p. 45, is derived from the act of 1899 (Acts 1899 p. 30, §4678 et seq. Burns 1908), of which the act of 1903 is amendatory, and under that act the suit must be brought in the county where the defendant’s home office is located, p. 35.</p>

From Vigo Superior Court; John E. Cox, Judge. Petition by Moses Bland and others for tbe establishment of a highway. From a judgment setting aside an order of the board of county commissioners dismissing the petition on the motion of Orlando ~W. Cassaday and another, and remanding the cause for further proceedings, the petitioners appeal.

Prom Porter Circuit Court; W. G. McMahan, Judge. Proceeding on the petition of George C. Gregg and others for the establishment of a highway. Prom a judgment of the circuit court, on appeal from the board of county commissioners, in favor of the petitioners, The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company appeals.

Prom Gibson Circuit Court; O. M. Welborn, Special Judge. Action by the State of Indiana, on the relation of Norman D. Heimann, against Effie D. Byers and another. Prom a judgment for relator, the defendant, National Surety Company, appeals.

<p>1. Cbiminax, Law. — 'Appeal.— Questions Reviewable.— Ruling on Motion to Quash. — Alleged error in overruling a motion to quash an indictment is not presented on appeal, where the motion was-oral and no cause is stated in the record, p. 69.</p> <p>2. Appeal. — Questions Reviewable. — Admission of Evidence. — Objections. — An objection to the admission of evidence, on the ground that such evidence is not proper for any purpose, is too broad to present any question unless it is apparent that it was improper for any purpose, p. 69.</p> <p>3. Criminal Law. — Evidence.—Admissibility.—In a prosecution for the unlawful sale of liquor, where the State claimed that two witnesses had arranged that one of them should obtain liquor for both, the admission of testimony of one of the witnesses showing that they had a conversation on the day of the alleged sale, but not showing what the conversation was, was not erroneous, and, even if erroneous, could not have been harmful, p. 69.</p> <p>4. Intoxicating Liquors. — Prosecution for Unlawful Sales. — Evidence. — In a prosecution for selling liquor without a license, the question of whether a witness, testifying to the purchase of liquor, was in the habit of becoming intoxicated or of using intoxicating liquors as a beverage, was immaterial, p. 70.</p> <p>5. Intoxicating Liquors. — Prosecution for' Unlawful Sales. — Evidence. — Exhibits.—In a prosecution for selling liquor without a license, the admission in evidence of bottles and their contents, claimed to contain whiskey, over the objection that it was not shown that such bottles or their contents were procured from defendant, was erroneous, where such bottles were not recognized by persons who claimed to have procured them, and the witness who produced them at the trial did not see them delivered by defendant to the persons claiming to have received bottles from him. p. 70.</p>

Prom Lake Superior Court; Virgil 8. Better, Judge. Action by Mike Ilko against the Inland Steel Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under subd. 2, §1394 Bums 1908, Acts 1901 p. 565.)

<p>1. Appeal — Review.—Evidence.—The court in the consideration of the evidence on appeal is limited to that which is uncontradicted, and, where there is controversy, to that most favorable to appellee, together with such inferences as may fairly be drawn in favor of appellee, p. 82.</p> <p>2. Fixtures. — What Constitutes. — Definition.—While the determi- ■ nation of what constitutes a fixture depends largely upon the relationship of the parties to the controversy, and is largely controlled by the particular circumstances of each case, a fixture may be defined generally as a thing that originally was a chattel, but has become a part of real estate by reason of attachment thereto by one having an interest therein, p. 85.</p> <p>3. Fixtures. — What Constitutes. — Requisites.—The true test of a fixture requires annexation of the article, either actual or constructive ; adaptation to the use of the realty, or part thereof, with which the article is connected; and an intention by the party annexing it to thereby make the article a permanent accession to the freehold, p. 85.</p> <p>4. Fixtures. — Changing Chattel to Realty. — Question of Law and Fact — The change of a chattel into realty involves a mixed question of law and fact. p. 85.</p> <p>5. Fixtures. — Annexation.—Method.—If an article is adapted for attachment to the realty, and there is an intent to dedicate it thereto, no restraint on its mobility, other than the will of the owner, is required to make it a fixture, and it is not important that the article be fastened by any independent device such as nails, bolts or cement, p. 85.</p> <p>C. Fixtures. — Changing Chattel to Realty. — Intent.—The intent to dedicate an article to the realty so as to become a fixture may be inferred from the nature of the article, the relation and situation of the party in the alleged annexation, and the use or purpose for which the article was annexed, p. 85.</p> <p>7. Fixtures. — What Constitute. — Tobacco Sticlcs. — Tobacco sticks furnished by a vendor to a former tenant who became the purchaser of the farm, and used either iu the fields or in the barns during the curing process, some of which were on the farm and others sent there to fill the necessity required by a larger crop, did not constitute fixtures, p. 86.</p> <p>8. Vendos and Pukchaseb. — Action.—Removal, of Properly by Vend- or. — The rule in relation to a tenant’s right to remove buildings, etc., after the expiration of the lease, does not govern in actions between vendor and purchaser, so that a vendor did not lose his right to the possession of tobacco sticks left upon the premises sold by failing to demand them until long after conveying the land to one who was at the time a tenant thereon, p. 86.</p>

<p>1. Appeal. — Review.—Harmless Rrror. — Ruling on Demurrers to Answer. — Prior to the act of 1905 (Acts 1905 p. 58, §3918 et seq. Burns 1908), relating to actions against common carriers for failure to safely transport and deliver property received by them, the rule that anything may be shown under the general denial that will disprove what the plaintiff is bound to show, was applicable to actions against carriers upon contracts of shipment, and since the act of 1905, as applied to interstate shipments, has been superseded by the Interstate Commerce Act, the sustaining of demurrers to certain paragraphs of answer, in an action for damages to an interstate shipment of mules, was harmless, where the only facts disclosed by such answers and not shown by the contract sued on were that defendant’s line did not extend to the destination of shipment, and that one from whom plaintiff purchased, routed the shipment after it left defendant’s line, since such facts, if matters of defense, were provable under the general ’ denial, p. 92.</p> <p>2. Carriers. — Constitutional Law. — Connecting Carriers. — Liability of Initial Carrier. — Section 6 of the Interstate Commerce Act, providing for the filing of joint rate schedules where a through route and joint rate have been established, and the filing of separately established rates applying to through transportation where no joint rate over a joint route has been established, and §20 making the initial carrier liable for damage occurring on the line of a connecting carrier, are not unconstitutional as abridging the freedom to contract, or as operating to take property without due process of law, since under §0 there can be no through shipment required unless there is a rate fixed over the lines of each carrier, which presupposes a contractual arrangement between the carriers in effect making the connecting carrier the agent of the initial carrier, hence the shipper’s right of routing in the absence of an established through rate cannot affect the contractual rights of the carrier, and the liability imposed by §20 is based upon the presumption as to such contract and agency, lip. 96, 98, IOC.</p> <p>3. Constitutional Law. — Interstate Commerce Act. — Determination of Validity. — Moot Questions. — In an action involving a through shipment under a contract between carriers fixing through rates, a carrier cannot question the constitutionality of the Interstate Commerce Act as applied to a case of routing by the shipper under the local rates of each connecting carrier; that being a moot question, p. 98.</p> <p>4. Carriers. — Constitutional Daw. — Connecting Carriers. — Liability of Initial Carrier. — Section 20 of the Interstate Commerce Act, imposing liability on initial carriers for loss or damage to shipments upon the lines of connecting carriers, but permitting them to recover from the connecting carrier responsible for such loss or damage, is not unconstitutional on the ground that it imposes the cost, expenses and attorney fees incurred in defending a case, or ascertaining where and how the loss occurred, upon the initial carrier, since by vouching in the carrier responsible for the loss, or giving it notice to defend, the party responsible for the loss may be determined and the expense transferred to it. p. 99.</p> <p>5. Carriers. — Interstate Shipments. — Liability for Injury or Loss. —Act of God or Public Bnemy. — Under §20 of the Interstate Commerce Act, providing that common carriers receiving property for transportation to a point in another state shall be liable for any loss or injury thereto caused by it, or occurring upon the line of any connecting carrier, carriers are not liable for loss or injury resulting from an act of God or the public enemy, p. 99.</p> <p>6. Appeal. — Review;—Refusal of Instructions. — Presumptions.— Although requested instructions relative to a carrier’s liability for injury to property under an interstate shipment were correct as controlled by the contract alone, the court must assume, in the absence of the evidence, that they were not applicable, that they were properly refused, and that those given were applicable and fully covered the issues, p. 101.</p> <p>7. Carriers. — Carnage of Live Stoclc. — Actions.—Instructions.—In an action for damages to a shipment of mules, where the contract of shipment required claims for damaged to be made within five days after the removal of the stock from the cars, an instruction that the failure to file such claim within five days relieved defendant from liability was properly refused as being too narrow, and the question was correctly covered by the court’s instruction pointing out that if an opportunity to inspect the mules when they were removed from the ear was refused by the carrier, the five days’ period for filing the claim would not begin to run at the time of unloading, p. 102.</p> <p>8. Carriers. — damage of Live Stock. — Actions.—■Instructions.— Where the court instructed as to the proper elements of evidence to be considered in determining the question of the reasonableness of the time fixed for filing claim for damages to a shipment, the objection that what is reasonable time is a question for the jury is not available, since the instructions do not attempt to determine that question, p. 102.</p> <p>9. Appeal. — Review.—Instructions.—Alleged error in giving an instruction is not available where no objection thereto is pointed out. p. 103.</p> <p>10. Carriers. — damage of Live Stock. — Rood.—Water and Rest.— Statutory Provisions. — The act of Congress, known as the Twenty-eight Hour Law, is for the prevention of cruelty to animals, and is not primarily for the benefit of shippers of live stock, but is restrictive of their rights, and cannot be waived by them except in the manner and upon the contingencies provided in the act. p. 104.</p> <p>11. Carriers. — Interstate Shipments. — Rates. — Knowledge of Shipper. — The shipper of an interstate shipment of mules was bound to know that a through shipment could not be undertaken in the absence of a through rate, that there could be at least two rates, applying to shipments under limited and unlimited liability contracts, and that the posting of such rates was not essential, so that the admission of evidence that the shipper was not informed as to the existence of two rates was improper, p. 104.</p> <p>12. Appeal. — Questions Reviewable. — Admission of Evidence. — Objection to the admission of evidence is unavailing on appeal where the grounds of objection are not stated, unless upon its face the evidence was improper under any circumstances, p. 105.</p> <p>13. Carriers. — damage of Live Stock. — Actions. — Evidence.— Where the carrier’s agent was not authorized t® accept shipment under the common law liability, and the shipper was thereby deprived of opportunity to ship, except under a contract of limited liability, such contract is void. p. 105.</p> <p>14. Appeal. — Briefs.—Sufficiency.—A so-called recital of the evidence contained in appellant’s brief, which is merely the conclusion of appellant as to what the evidence shows, is not a sufficient compliance with the rule requiring a condensed recital of the evidence, p. 107.</p>

Prom Pulton Circuit Court; Smith M. Stevens, Special Judge. Action by Orba P. Montgomery, administrator with, the will annexed, of Jesse Shriver, deceased, against Elias Shriver and others. Prom a judgment construing the will, the defendantssappeal.

<p>From Labe Superior Court; Lawrence Becker, Judge.</p> <p>Action by Jesse S. Smith, against Theodore George. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Appeal. — Questions Reviewable. — Objections to Evidence. — ■ There is nothing presented for review on alleged error in permitting a certain question to be ashed a witness, where the question was not answered and the point was not presented in the motion for new trial, p. 125.</p> <p>2. Cbimihal Law. — Appeal.—Harmless Error. — There was no error in overruling defendant’s objection to a question as to whether witness had bought intoxicating liquor in defendant’s place within the past two years, on the ground that it might disclose that the same transaction was the basis of a prosecution in which defendant entered a plea of guilty and paid a fine. p. 125.</p> <p>3. Criminal Law. — Former Jeopardy. — A trial court cannot take judicial notice of the records- of another circuit showing that defendant had already been in jeopardy, but that is a matter of defense to be established by evidence, p. 125. .</p> <p>4. Appeal.— Questions Reviewable. — Evidence.—Nothing is presented for review on alleged error in the admission of evidence where there was no objection and no exception, p. 125.</p> <p>5. Criminal Law. — Appeal.—Harmless Error. — Evidence.—Error, if any, in permitting a witness in a prosecution for unlawful sale of liquor to answer in response to a question as to whom he paid for liquor purchased in defendant’s place “within the past two years”, was harmless, where the court had instructed the witness that his answers should be confined to the time prior to the date the prosecution was instituted, p. 125.</p> <p>C. Intoxicating Liquors. — Prosecution for Unlawful Sale. — Evidence. — Admissibility.—In a prosecution for the unlawful sale of intoxicating liquors, where it was shown that the liquor was sold by defendant, there was no error in overruling an objection to a question, put to a witness as to what he did with whiskey bought of defendant, on the ground of immateriality, since if the liquor was drunk on the premises it was a circumstance in support of the charge, p. 126.</p>

<p>From Hamilton Circuit Court; Joseph Combs, Special Judge.</p> <p>Proceedings on the petition of William H. Whitsell and others for the improvement of a highway. From a judgment of the circuit court dismissing the appeal from the order of the board of commissioners, Hamilton Metsker and others appeal.</p>

<p>1. Railroads.— Crossing Accidents.— Complaint.— Sufficiency.— A complaint to recover for the death of plaintiff’s decedent at a •railroad crossing, though not directly alleging that those in charge of the train were serving defendant at the time and acting in the line of their employment as defendant’s servants, was sufficient against objection on that ground, where no other conclusion could be drawn from the complaint as a whole than that those in charge of the train were defendant’s servants and engaged in performing the work intrusted to them at the time decedent was killed, p.147.</p> <p>2. Railroads. — Crossing Accidents. — Complaint.—Instructions.—In an action for the death of plaintiff’s decedent in a crossing accident, where the only conclusion to be drawn from the complaint,</p> <p>• when considered as a whole, was that those in charge of the train at the time were defendant’s servants and engaged in the performance of the work intrusted to them, objections, to instructions given, based on the assumption that the complaint was defective in failing to directly allege that those in charge of the train were defendant’s servants and engaged in the line of their emplos'ment, were ineffective, p. 148.</p> <p>3. Railroads. — Crossing Accidents. — Negligence.—Failure to Signal Approach of Train. — Instructions.—The failure of a railroad company to give reasonable and timely warning of the approach of its train to a street crossing, constitutes negligence, hence an instruction stating that the presence of employes on the backing car acting as lookouts, or for the purpose of giving signals, was not of itself sufficient to excuse defendant from giving timely warnings and signals of the approach to the crossing if the circumstances and conditions of tlie crossing were such that the signals and warnings of the employes upon the car would not apprise the traveler of the approaching train, and that under such conditions and circumstances defendant was bound to give such other warnings and signals as would warn the traveler who was looking and listening for a train, of the approach to the crossing, and that failure to do so would constitute negligence, was not open to the objection that it charged defendant with a greater duty than that imposed by law on railroads at street crossings in incorporated towns, and the giving of such instruction was not erroneous where there was evidence of defendant’s failure to sound the whistle and ring the bell under such conditions and circumstances as to constitute negligence, p. 148.</p> <p>4. Appeal. — Review.—Harmless Error. — Instructions.—In an instruction in a railroad street crossing case, directing a verdict for plaintiff, if the jury found that the allegations of the complaint were true and that decedent was free from contributory negligence, the failure to specifically include the question of decedent’s knowledge of the approaching train as an element of contributory negligence, was harmless, in view of the answers to interrogatories finding against defendant on that question, and of other instructions covering the omission complained of. p. 149.</p> <p>5. Appeal.' — Review'.—Refusal of Instructions. — There was no error in the refusal of requested instructions, where, in so far as they were correct, they were fully and correctly covered by the court’s instructions, p. 150.</p> <p>6. Appeal.— Findings.— Conclusiveness.— Misconduct of Jury.— Where affidavits alleging that a juror was guilty of misconduct in disclosing the verdict before its rendition, were met by the affidavit of the juror, and of the person to whom the disclosure was alleged to have been made, expressly denying any disclosure, the trial court was warranted in finding that there had been no disclosure, and its conclusion will not be reviewed on appeal, p. 151.</p> <p>7. Appeal. — Review.—Harmless Error. — Failure to Seal Intenvgatories and Ansioers. — Where the jury on returning a sealed verdict returned one set of interrogatories and answers not sealed, and also returned interrogatories submitted by appellant unanswered, the irregularity did not constitute harmful error, where the court required the jury to return to the jury .room and complete its work of answering the interrogatories, and it appeared that the answers to the interrogatories returned in the first instance had not become known and were not afterwards changed except as they were made more definite at the court’s direction, p. 152.</p> <p>8. Tkial. — Failure of Jury to Ansioer Interrogatories. — Duty of Court. — When a jury returns interrogatories unanswered, the court should require it to return to the jury room and complete its work. p. 152.</p> <p>9. Trial.— Rendition of Verdict.— Defective Verdict.■ — Where a sealed verdict has been agreed on and the jury has been allowed to separate, and upon reassembling the verdict is found to be defective, the jury should be required to retire and make the amendment, p. 152.</p>

<p>From Superior Court of Marion County (81,682) ; Clarence E. Weir, Judge.</p> <p>Action by Benjamin Meixell and another against the American Motor Car Sales Company. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>1. Wills. — Construction.—Estate Devised. — Fee.—Under a devise to the son of a testatrix, providing that in case such son should die without issue, at his death one-third of the estate devised to him should go to his wife, and the remaining two-thirds to the other children and grandchildren of testatrix, such son, surviving the testatrix, was vested with the fee absolute upon her death, p. 164.</p>

<p>1. Appeal. — Moot Question. — Dismissal.—Where a certain canvassing board was mandated to certify to the board of election commissioners the name of plaintiff as the nominee for a certain office, and restraining such canvassing board from certifying the name of his opponent as such nominee, and pending an appeal from such judgment the mandate of the trial court was complied with, and appellee was elected and assumed the office without objection, the appeal must be dismissed, since the questions presented are merely moot questions, p. 166.</p>

<p>1. Corporations. — Contracts by Promoters. — Validity.—Ratification. — While under ordinary circumstances a corporation cannot be sued successfully on a contract made for its benefit by its projectors before its incorporation, such contracts are not void, but voidable, and in so far as they are not ultra vires they may become binding on the corporation by its ratification thereof either express or implied, p. 169.</p> <p>2. Corporations. — Contracts by Promoters. — Implied Contracts.— The rule that a corporation may he hound, like any individual, by an implied contract is limited in its application to contracts in which the promoters of such corporation are not interested, p. 169.</p> <p>8. Corporations. — Contracts by Promoters. — Burden of Proof.— While a corporation may purchase property from its promoter and pay him for his services, the burden is on the promoter to show that he acts openly and in good faith in such transactions, p. 169.</p> <p>4. Corporations. — Promoters.—Fiduciary Relationship. — A promoter, in bringing about the organization of a corporation, and securing stock subscriptions, occupies a fiduciary relationship towards the corporation, the stockholders, and those who are expected to buy stock, and where he expects to be paid for his services that fact should be disclosed to them in advance, p. 169.</p> <p>5. Corporations. — Promoters.—Services.—Ratification.—In the absence of statutory or charter provisions, a corporation will be held liable for services rendered by its promoters before incorporation only when, by express action taken after it has become a legal entity, it recognizes or affirms such claim, p. 171.</p>

Prom Sullivan Circuit Court; Charles E. Henderson, Judge. Action by James R. Riggs against tbe Board of Commissioners of the county of Sullivan. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1908, Acts 1901 p. 565.)

<p>From Vanderburgh Circuit Court; C. A. DeBruler, Judge.</p> <p>Proceeding by John P. Roth and other,sdo establish a drain, to which Traugott ITauschild filed remonstrance. Prom a judgment for petitioners, the remonstrant appeals.</p>

<p>From Delaware Circuit Court; Frank Filis, Judge.</p> <p>Action by Cornelius Delaney and others against John F. Gubbins and another. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Highways. — Improvement.—Appeal.—An appeal does not lie from the judgment of the circuit court establishing a highway improvement under the provisions of §§7694-7710 Burns 1908, Acts 1905 p. 521, Acts 1907 p. 561. p. 198.</p> <p>2. Appeal. — Judgments Reviewahle. — Judgment in Action to Review Nonappealable Judgment. — Where the statute provides that no appeal can be taken from a judgment of the circuit court, there can be no appeal from a judgment rendered in an action brought for a review of such judgment, p. 199.</p>

<p>Prom Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Prosecution by the State of Indiana against Hugh Me Caffrey. Prom a judgment of acquittal, the State appeals.</p>

Prom St. Joseph. Circuit Court; Walter A. Funk, Judge. Action by William Tarnowski against the Lake Shore and Michigan Southern Railway Company. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under subd. 1, §1392 Burns 1908, Acts 1907 p. 237, §1.)

Prom Hamilton Circuit Court; Meade Vestal, Judge. Action by Sallie Isgrig, administratrix of the estate of William E. Isgrig, deceased, 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>Prom Criminal Court of Marion County; Joseph T. Mar-hey, Judge.</p> <p>Prosecution by the State of Indiana against George Schneider. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Independent Contractor. — Evidence.—Under evidence showing an agreement by defendant with a contracting firm for the construction of a building, whereby such firm was to erect the brick walls and foundation according to certain plans and specifications, and defendant was to. furnish all building material, while such firm was to supply all scaffolding, etc., and employ its own men, and for its services in the supervision, construction and general erection of the brick and cement work was to receive a specified sum per week, and showing that said firm hired all the laborers, including plaintiff, and gave the orders to the men as to what they should do and how it should be done, that a member of the firm, kept the time of the men and made out the weekly pay roll which he presented to defendant, from whom he received the money to meet it, that defendant’s president was about the building practically every day and on one occasion told a workman that certain window frames should be changed, but that the change was not made until ordered by the contractors, and that acting under the direction of the contractors he also laid off a workman, the contracting firm was an independent contractor, and defendant was not liable for plaintiff’s injury caused by the falling of a defective scaffold used in connection with the work. p. 221.</p> <p>2. Neoeigence. — Independent Contractors. — Liahilitu. — Where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed, except that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let; and the rule is not altered by the fact that such person retains a supervision of the work simply for the purpose of securing certain results, or in order to stop work that is not properly done; neither is the rule affected by reservation of the right to make alterations, omissions, or deviations from the original contract, nor by the manner provided for paying the contractor, or by the fact that the person letting the contract furnished some of the material, in the absence of a showing that the injury resulted from a defect in such material, pp. 222,224.</p>

Prom Union Circuit Court; Wallace Morgan, Special Judge. Proceeding for the construction of a highway in which Omar M. Ardery and another, as taxpayers, filed statements that the construction had not been completed. On appeal from an order of the board of commissioners striking out such statements, the circuit court rendered judgment dismissing the appeal, from which judgment this appeal is prosecuted.

<p>Prom Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by John Riley against George Neptune and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)</p>

<p>Petition in the Supreme Court by William Huffman to be admitted to bail.</p>

<p>1. Insane Persons. — Actions.—Service of Process. — A proceeding under §3101 Bums 1908, Acts 1895 p. 205, providing for the appointment of guardians for persons of unsound mind, is governed by the civil code at least as to the issuance and service of process; so that even though §318 Burns 1908, §315 R. S. 1881, providing that process against persons of unsound mind shall be served upon the guardian, or, if no guardian has been appointed, upon the superintendent of the hospital in which such person is confined, applies only to civil actions, service may be had thereunder upon the superintendent of an insane hospital in a proceeding under §3101 for the appointment of a guardian, p. 248.</p> <p>2. Insane Persons. — Adjudication of Insanity. — Even if §318 Burns 1908, §315 It. S. 1881, is unconstitutional in its provision for service of process against persons of unsound mind upon the guardian, or, if no guardian, upon the superintendent of the hospital in which such person is confined, a judgment adjudging a person of unsound mind and incapable of managing his estate is not void on its face, because of service had thereunder, in the absence of an affirmative showing that such person was not also served with personal notice, p. 248.</p> <p>3. Insane Persons. — Adjudication of Insanity. — Complaint to Vacate Judgment. — A complaint to vacate a judgment had in a proceeding under §§3101, 3102 Burns 1908, Acts 1895 p. 205, adjudging plaintiff of unsound mind and incapable of managing his estate, on the ground that plaintiff was not served with process, but that service was had on the superintendent of a hospital in which plaintiff was confined, is insufficient in the absence of allegations of fraud on the part of the petitioner relating to the service of process, p. 248.</p> <p>4. Insane Persons. — Adjudication of Insanity. — Vacating Judgment. — Adequate Legal Remedy. — A suit in equity, grounded on alleged fraud in the service of process, will not lie to set aside a judgment rendered in a proceeding under §§3101, 3102 Burns 1908. Acts 1895 p. 205, adjudging plaintiff of unsound mind and incapable of managing his estate, since, if service was unlawful, a full and adequate legal remedy existed by appeal under §671 Burns 1908, §632 R. S. 1881, or by complaint to review the judgment under §645 Burns 190S, §615 R. S. 1881. p. 248.</p> <p>5. Insane Persons. — Adjudication of Insanity. — Action to Vacate Judgment. — Laches.—Under a complaint, grounded on fraud in the service of process, to vacate a judgment rendered in a proceeding under §§3101, 3102 Burns 1908, Acts 1905 p. 205, adjudging plaintiff to be of unsound mind and incapable of managing his estate, it must be presumed, in view of the allegation that plaintiff had no knowledge of such proceeding until after the judgment was entered, that he had such knowledge immediately thereafter, and where it further appears that during a period of three years following such judgment the plaintiff permitted the guardian therein appointed to manage and sell his property without objection, relief will be denied, since equity will not interfere where the complainant has been guilty of laches, p. 249.</p> <p>6. Constitutional Law. — Determination of Constitutional Questions. — Necessity.-—Constitutional questions are not considered by courts except in cases of imperative necessity, p. 249.</p> <p>7. Insane Persons. — Proceedings.—Appeal.—Under §3101 Burns 1908, Acts 1895 p. 205, providing that, in proceedings to have a person adjudged of unsound mind and incapable of managing his estate, the issue shall be tried as the issues in civil actions are tried, and §671 Burns 1908, §632 B. S. 1881, authorizing appeals in civil cases, an appeal lies from the judgment in a proceeding to have adjudged of sound mind a person previously declared of unsound mind and incapable of managing his estate, p. 249.</p> <p>8. Insane Persons. — Proceedings.—Instructions.—In a proceeding to have a person adjudged of sound mind, who had previously been adjudged of unsound mind and incapable of managing his estate, an instruction that if a person is of unsound mind within the meaning of the law, he is incapable of transacting any business, and so long as such unsoundness of mind continues he should be kept under guardianship, was erroneous, since not every impairment of mind will disqualify one from managing his property, and in such proceeding the sole question for the jury to determine is whether such person is of mind sufficiently sound to capacitate him to manage his estate, pp. 250, 251.</p> <p>9. Insane Persons. — Necessity for Guardian. — Test.—Burden of Proof. — To justify the appointment of a guardian for a person of unsound mind, there must be such mental impairment as to render the subject incapable of understanding and acting with discretion in the ordinary affairs of life, and on an application to restore one under guardianship to the control of his property, the same test is applicable, but the applicant has the burden of proof, p. 250.</p> <p>10. Insane Persons. — Proceedings.—Instructions.—In a proceeding to restore a person under guardianship to the control of his own property, an instruction was clearly erroneous which stated that he was of unsound mind within the meaning of the law, if, as to his relations to Deity and his family, he was influenced by insane delusions,' notwithstanding he appeared to be sane on all other subjects, could talk in a rational manner, knew the value of ordinary merchandise and live stock as ordinarily dealt in by farmers, and could make computations in weights and moneys, p. 251.</p>

<p>From Wells Circuit Court; Charles E. Sturgis, Judge.</p> <p>Action by James Gordon and others against Alexander Wiley and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Master and Servant. — Injuries to Servant. — Liability.—Statutes. — Under §1 of the Employers’ Liability Act (Acts 1911 p. 145) making employers of more than five persons liable for injuries to, or the death of, an employe due to its negligence, or the negligence of its agents, servants, etc., §2 placing the burden of proof on the question of negligence on the employer, eliminating the doctrine of assumed risk where there is a violation of an ordinance or statute, or any rule, regulation or direction, made by any public commission, as well as the defenses of hazards and dangers inherent or apparent in the employment, and of negligence and contributory negligence resulting from obedience or conformity to any order or direction to which the employe is required to conform, and §3 containing similar provisions as to assumption of risk, and providing that the employe shall not be held to have assumed the risk of any defect in the place of work, or in the tool, etc., which defect was known to the employer or might have been known to him in time to repair or discontinue its use, and placing the burden of proof as to such knowledge on the employer, negligence is the essence of liability, and the law as to when an employe assumes the risk, or is negligent, or as to the burden of proof as to negligence, is not changed, but the fellow servant rule is destroyed, and the rule is changed as to the burden of proof as to knowledge of defects, pp. 270,272.</p> <p>2. Statutes. — Construction.—Constitutional Law. — In construing a statute, the court must, if possible, give it a construction which will render it harmonious and constitutionally valid, p. 272.</p> <p>3. Constitutional Law. — Master and Servant. — Due Process of Law. — Injuries to Servant. — Liability.—Statutes.—The Employers’ Liabilty Act (Acts 1911 p. 145) creates no liability on the part of an employer where there is no negligence, and is therefore not open to the objection that it operates to deprive employers of their liberty or property without due process of law. p. 273.</p> <p>4. Constitutional Law. — Statutes.—Class Legislation. — Where a statute is restricted in its application, the courts are not warranted in overthrowing it as being unconstitutional, unless satisfied from the act itself, or from matters of which courts will take judicial notice, that there can be no basis in reason upon which the classification therein is made to rest. p. 275.</p> <p>5. Constitutional Law.— Equal Protection of Law.— Master’s Liability for Servant’s Injuries. — Statutes.—The Employers’ Liability Act (Acts 1911 p. 145) is not invalid as denying the equal protection of the laws because it applies only to employers of five or more persons, since a distinction between an employer of a large number of employes and one employing only a few has some basis in reason, and the court cannot say that it was unreasonable to separate employers into those employing five or more persons and those employing less than five. p. 275.</p> <p>6. Master and Servant. — Injuries to Servant. — Liability.—Statutory Provisions. — Section 3 of the Employers’ Liability Act (Acts 1911 p. 145) is not open to the objection that, by its provision for the nonassumption of the risk of the place, or tool or implement furnished to the employe, it requires employers of five or more persons to exercise a higher diligence than employers of less than five, since by the express provision of §1 of the act, the rule, as it existed at common law, making it the duty of the master to furnish, or exercise ordinary care to see that the tool, implement, or place of work is reasonably safe, still obtains with all its vigor, p. 289.</p> <p>7. Master and Servant. — Injuries to Servant. — Liability.—Statutory Provisions.— “Business”.— “Commerce”.— The Employers’ Liability Act (Acts 1911 p. 145) which by its terms applies to employers of five or more persons engaged in business, trade or commerce, applies to railroads, since “business” is that which occupies the time, attention or labor of men for the purposes of profit or improvement as their principal concern, and “commerce” is traffic, including the means and vehicles of traffic, and it is also intercourse and transportation, p. 291.</p> <p>S. Constitutional Law.— Determination of Constitutional Questions. — Necessity of Determination. — Whether §7 of the Employers’ Liability Act (Acts 1911 p. 145) is unconstitutional as depriving the courts of judicial functions is not involved and will not be determined where under the first paragraph of complaint the evidence made a question for the jury as to negligence, and under the second there was no question of defendant’s liability under that portion of the act eliminating the fellow servant rule, since §7 is entirely severable from the other provisions of the act. p. 293.</p> <p>9. Master and Servant. — Injuries to Servant. — Instructions.—In a railway brakeman’s action for injuries, in which the first paragraph of complaint charged negligence of the engineer in backing against the car on which plaintiff was riding in the course of his duty, and the second alleged a cause of action under the Employers’ Liability Act (Acts 1911 p. 145) and the evidence showed that his place of work was rendered unsafe either by the negligence of the engineer or through the giving of an order requiring him to be at that place, an instruction that defendant was a corporation and could not discharge in person the obligation of furnishing its employes a reasonably safe place to work, and appliances with which to work, but must provide some agent to take its place, and that the agent to whom it delegated such duty stood in its place and stead, was not misleading, although there ‘was no allegation in the complaint of failure to furnish plaintiff a reasonably safe place of work, or appliances with which to work, since it was negligence, and not the place of work, which produced the injury, p. 293.</p>

<p>From Perry Circuit Court; William, Ridley, Judge.</p> <p>Action by Francis Michael Claudel and others against William V. Boland and others. From a judgment for plaintiffs, the defendants appeal.</p>

<p>1. Wills. — Codicil.—Estoppel to Dewy Relation of Codicil to Will and Prior Codicils. — Appeal.—Where it appears, that following the execution of a will, testator executed eleven codicils, of which the eighth merely stated that it was a codicil to the will and codicils theretofore made, nominated an executor and revoked all other appointments theretofore made, and was found in the same safety box walk testator’s will and other codicils, and was admitted to probate with them, and no attack was made against it on the trial of the cause, appellees are estopped from asserting on appeal that such codicil has no reference to the will and codicils in contest, p. 300.</p> <p>2. Wills. — Probate of Codicil. — Prima Facie Validity.- — The probate of a codicil to a will established the prima facie validity thereof, and until set aside in a direct action for that purpose, the presumption remains that on the date of its execution the testator was of sound mind and disposing memory, p. 301.</p> <p>3. Wills. — Codicil.—Repicblication of -Will. — A codicil executed with the formalities required by statute for the execution of wills operates as a republication of the will in so far as it is not revoked or altered by the codicil, if the intention of the testator is not thereby defeated, and the two are to be regarded as but one instrument speaking from the date of the codicil, p. 301.</p> <p>4. Wills. — Codicil.—Republication of Previous Codicils. — By the execution of a codicil to a will having prior codicils, the presumption arises, in the absence of a clear intent to the contrary, that testator meant to ratify and confirm the will as amended by such prior codicils, and such codicils are thereby republished, p. 302.</p> <p>5. Wills. — Codicil.—Republication of Will. — The fact that a codicil disposes of no property, but merely nominates an executor, does not affect the rule that a duly executed codicil republishes the will and all prior codicils thereto, p. 303.</p>

<p>1. Pleading. — Complaint. — 'Presumptions. — Where a complaint against an interstate carrier for overcharges declared on the breach of a verbal contract in regard to rates, it must be presumed in the absence of a contrary averment, that the rates charged were those included in the tariffs published and filed with the Interstate Commerce Commission, p. 307.</p> <p>2. ! Courts. — Jurisdiction of State Courts. — Construction of Interstate Commerce Act. — A State court has no jurisdiction in an action to recover overcharges, in which it is alleged that an interstate carrier having a published rate of one cent per hundred pounds with a minimum charge of $5 per ear, furnished cars with a carrying capacity of 40,000 pounds when plaintiff had demanded cars with a capacity of 50,000 pounds, and that plaintiff was thereby overcharged because the cars of 40,000 pounds capacity would not earn the minimum charge of $5 per ear at the published rate of one cent per hundred pounds, since the action involves a construction of the Interstate Commerce Act, and a determination of questions that, under that act, are matters for the Interstate Commerce Commission, p. 308.</p> <p>3. Courts. — Jurisdiction of State Courts. — Questions Arising from Interstate Commerce. — Distribution of Cars. — State courts have no jurisdiction to determine the question of overcharges by a carrier through its distribution of ears used in interstate traffic, p. 313.</p>

<p>1. Criminal Law. — Appeal.—Stay of Proceedings. — Failure to Perfect Appeal. — Where, following conviction, defendant gave notice of appeal and filed a proper bond, but failed to perfect the appeal within the time prescribed by law, the appeal bond became ineffective as a stay of execution, p. 315.</p> <p>2. Criminal Law. — Right to Prosecute Appeal. — Fugitives From Justice. — Where appellant in a criminal case absents himself from the custody of the State and from its jurisdiction, and becomes a fugitive from justice, he cannot prosecute his appeal, p. 316.</p>

Prom Wells Circuit Court; Samuel E. Cook, Special Judge. Action by the State of Indiana, on the relation of Gabriel T. Markley, superintendent for the construction of a drain, against Peter Prantz and others. Prom a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>From Blackford Circuit Court; Charles TS. Sturgis, Judge.</p> <p>Action by Henry M. Sehmuek against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Martin Circuit Court; James W. Ogdon, Judge. Action by Kizzie Nicholas against Wesley J. Porter and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Sullivan Circuit Court; John W. Lindley, Special Judge.</p> <p>Action by the Jackson ETill Coal and Coke Company against the Board of Commissioners of the County of Sullivan. Prom a judgment for defendant, the plaintiff appeals.</p>

<p>From Dekalb Circuit Court; Frank M. Powers, Judge.</p> <p>Action by the Bishop-Babcock-Becker Company against Thomas Mannos and another. From an interlocutory order appointing a receiver, this appeal is prosecuted.</p>

<p>Prom Warren Circuit Court; Burton B. Berry, Judge.</p> <p>Prosecution by tbe State of Indiana against George Weidenhammer. From a judgment of conviction, tbe defendant appeals.</p>

Prom Allen Circuit Court; Edward 0 ’Rourke, Judge. Condemnation proceedings by the Port Wayne and Northern Indiana Traction Company against Anna Echart and others. Prom an interlocutory judgment adjudging that plaintiff was entitled to appropriate the land, and appointing appraisers to assess the damages, this appeal is prosecuted.

Prom Dekalb Circuit Court; Frank M. Powers, Judge. Petition by Royce E. Pair and others for the establishment of a drain, to which Eula Y. Croxton and others filed answer alleging lack of jurisdiction. Prom a judgment for petitioners, objectors appeal.

From Rush. Circuit Court; John D. Megee, Judge. Action by the State of Indiana, on the relation of the Farmers Trust Company of Rushville, against the Board of Finance of Jackson Township of Rush County, and another. From a judgment for defendants, the relator appeals.

Prom Superior Court of Tippecanoe County; James P. Wason, Special Judge. Action by Ella M. Jester against the Tippecanoe Loan and Trust Company and others. Prom a judgment abating the action as to the defendants Henry W. Barret and John W. Barr, Jr., the plaintiff appeals.

Prom Dekalb Circuit Court; Frank M. Powers, Judge. Petition by Jacob S. Varner and others to establish a drain, against which Isaac N. Shilling and others remonstrated. Prom a judgment for petitioners, the remonstrants appeal.

<p>1. Master and Servant. — Injuries to Servant. — Liability.—Negligence of Superior Servant. — Complaint.—A complaint based on the second subd. of §1 of the Employers Liability Act of 1893, §8017 Burns 1908, Acts 1893 p. 294, §1, alleging that plaintiff was directed by defendant’s foreman to move a car on a switch track, that in obedience to such order he placed himself behind the car, with his back toward another car immediately behind him, that such foreman knew of the position so taken by him, and that such position would become a place of danger if other cars were allowed to be pushed against the one standing at his back, and that while so at work, and under the immediate supervision of such foreman in a position where he could not see or know what was occurring behind him and could not hear the approach of cars on such track, all of which was known to such foreman, such foreman negligently and without warning permitted cars to be pushed against the one at plaintiff’s back, thereby injuring plaintiff, sufficiently stated a cause of action in plaintiff’s favor, pp. 390, 392, 394.</p> <p>2. Master and Servant. — Injuries. to Servant. — Liability.—Negligence of Superior Servant. — Under the second subd. of §8017 Burns 1908, Acts 1893 p. 294, §1, making every railroad or other corporation, except municipal, liable for personal injuries to any employe resulting from the negligence of any person in its service to whose order or direction the injured employe was bound to and did conform, it is not essential to liability that the order to which the injured employe was bound to and did conform was in itself negligent, p. 391.</p> <p>3. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Assumption of Bislc. — Under a complaint showing that plaintiff was directed by his foreman to move a car on a switch track, and in the presence and under the immediate supervision of such foreman, who knew of his position and of the danger, went between such car and another car and was injured when cars were pushed against the one behind him without warning, and showing that the position taken by him was not dangerous of itself and became so only because of the foreman’s failure to warn him, plaintiff was not bound to anticipate the foreman’s failure to exercise ordinary care to prevent the position from becoming dangerous, and cannot be held to have been negligent nor to have assumed the risk. p. 393.</p> <p>4. Master and Servant. — Injuries to Servant. — Liability.—Employers Liability Act. — A “yard and bridge man” employed by a railroad company, who as such was ordered to move a car on defendant’s switch track and while doing so was injured by the movement of an engine and other cars on the same track, is within the application of subd. 2 of §1 of the Employers Liability Act of 1893 (§8017 Burns 1908, Acts 1893 p. 294), making railroad companies liable for injuries incurred by employes through the negligence of any person in their service to whose order such injured employe was bound to and did conform, since it is not essential to a cause of action under that statute that the injured employe should have been in some way connected with the movement of trains, but a liability exists if the performance of his duties brought him into a situation where he was exposed to dangers and perils flowing from such operation and movement, p. 394.</p> <p>5. Master and Servant. — Injuries to Servant. — Trail.—Verdict.—■ Answers to Interrogatories. — In an action for personal injuries by a railroad employe on a complaint charging that plaintiff, pursuant to an order of his foreman to move a car on a switch track, went between such car and another car to perform the work, and was injured by cars being pushed against the car behind him without warning, and showing that the position taken by plaintiff was not dangerous of itself and became so only because of the foreman’s failure to warn him, a verdict for plaintiff is a finding that the essential averments of the complaint were proven, and answers to interrogatories that follow the averments of the complaint, and also show that plaintiff in attempting to move the car followed the method usually employed, are not inconsistent with the verdict and do not establish contributory negligence or assumption of risk. p. 395.</p> <p>6. Master and Servant. — Injuries to Servant. — Liability.—Negligence of Superior Servant. — Under §8017, subd. 2, Burns 1908, . Acts 1893 p. 294, §1, making railroad: corporations liable for injuries to employes resulting from the negligence of persons in their service to whose order or direction the injured employe was bound to and did conform, where a servant is installed as the superior of others, with power to direct and supervise the latter in the performance of their duties in the master’s service, and to exact obedience, such superior servant stands in the place of the master and is not to be regarded as a fellow servant, p. 396.</p> <p>7. Appeal. — Revieio.—-Harmless Error. — Misconduct of Counsel.— Alleged misconduct of plaintiff’s counsel in argument to the jury will not work a reversal where it appears that in so far as the matter complained of went beyond the record the jury was instructed that it should not be considered, and it further appears that the amount of the verdict was not fully compensatory, p. 397.</p> <p>8. Master and Servant. — Injuries to Servant. — Instructions.—An instruction, on the subject of contributory negligence, stating that the verdict should be for plaintiff if the material allegations of his complaint were proved by a preponderance of the evidence, unless the jury further found by a preponderance of the evidence that plaintiff was guilty of contributory negligence, was not erroneous for omitting to state that proof of nonassumption of the risk was one of the elements essential to plaintiff’s action, since the instruction did not attempt to enumerate all the elements essential to recovery on the complaint, and the element of plaintiff’s nonassumption of the risk, if involved at all, was necessarily embraced in the requirement that all the material allegations of the complaint must be proved, p. 397.</p> <p>9. Master and Servant. — Injuries to Servant. — Liability.—Assumption of Risk. — In an action under §8017, subd. 2, Burns 1908, Acts 1893 p. 294, §1, making railroad companies liable to employes for injuries resulting from the negligence of any person in their service to whose order or direction the injured employe was bound to and did conform, assumption of the risk is not involved and that question cannot arise, p. 398.</p> <p>10. Appeal. — Review.—Instructions.—Cure of Error by Other Instructions. — Error, if any, in an instruction on the subject of contributory negligence in the omission of the question of assumption of risk, was cured where the instruction was supplemented by another correctly defining the law of assumption of risk as an obstruction to a recovery, p. 398.</p> <p>11. Master and Servant. — Injuries to Servant. — Instructions.—In an action for personal injuries, based on §8017, subd. 2, Burns 1908, Acts 1893 p-. 294, §1, making railroad companies liable to employes for injuries resulting from the negligence of any person in their service to whose order or direction the injured employe was bound to and did conform, an instruction that in considering whether the person giving the order was one to whose orders plaintiff was bound to conform, it is proper to consider all the facts and circumstances tending to show the existence or extent of any authority he may have assumed, if he did assume any, that the fact as to his authority is not evidenced, alone by any rank or title assumed or given, nor by the fact that no rank or title was conferred upon him, and that it is not essential that authority should have been conferred upon him in any particular form, is not objectionable as assuming that authority was conferred or that some rank or title was assumed by such person, p. 398.</p> <p>12. Appeal. — Review.—Harmless Error. — Refusal of Instructions. —The refusal of requested instructions is not error, where, in so far as they were correct, they were fairly covered by others given, p. 399.</p>

Prom Probate Court of Marion. County (9,021); Frcmlc B. Boss, Judge. Action by John Q. Riddle, assignee of the Baackes Wire Nail Company, against Collie E. Kinney,- administrator of the estate of Jacob S. Hildebrand, deceased. Prom a judgment for plaintiff, the defendant appeals.

<p>From Superior Court of Marion County (81,683); Clarence T£. Weir, Judge.</p> <p>Action by Henry Bothschild against the Town of Sheridan. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Partnership. — Action for Accounting. — When Maintainable.— Where, under a partnership for the purpose of taking an option on certain real estate and selling the land thereunder at a profit, the land had been sold, and the partnership debts had been paid, and one of the partners was in possession of the firm’s entire assets, which he was attempting to convert to his own use, denying that the other partner had any interest therein, the latter could sue for an accounting and settlement, though such assets were represented by a promissory note which had not been collected. p. 413.</p> <p>2. Partnership. — Accounting.—Parnership Assets. — Where, following the expiration of an option on real estate taken by a partnership formed solely to procure such option and sell the land, a sale thereof was made by one of the partners, not, however, as the result of such partner’s efforts independent of the partnership and-subsequent to the expiration of the option, but rather as the result of negotiations begun by the partnership during the life of the option and continued thereafter with the acquiescence of the owners of the land, equity, as between such partners, will not regard the time as of the essence of the partnership agreement, and will treat the profits arising from the transaction as partnership assets, p. 415.</p> <p>3. Partnership. — Action for Accounting. — Personal Judgment. — In a partner’s action for an accounting and settlement, where it appeared that one of the partners had converted to his own use a promissory note which represented the assets of the partnership, the court did not err in rendering a personal judgment against him for the amount of the other partner’s interest therein. p. 416.</p>

Prom Superior Court of Marion County (80,786) ; Vinson Carter, Judge. Action by Prank Robbins against tbe American Motor Car Company and another. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Olay Circuit Court; John M. Rawley, Judge. Action by tbe Vandalia Eailroad Company against Laura M. Wheeler and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

From Wells Circuit Court; Charles E. Sturgis, Judge. Action by Charles F. Davison against Otto Cupp and another. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>Prom Superior Court of Madison County; H. Clarence Austin, Judge.</p> <p>Action by Robert Knotts against Grant Anderson and another. Prom a judgment for plaintiff, the defendants appeal.</p>

From Jasper Circuit Court; Moses Leopold, Special Judge. Proceeding for the allotment of a ditch for cleaning, in which Almira M. Stockton and others filed objections. From a judgment approving the allotment as made by the county surveyor, the objectors appeal.

From Wells Circuit Court; It. II. HartfordJudge. Application by Eoy Febler for the probate of the will of Catherine Faylor, deceased, to which Thomas Faylor filed objections. From a judgment admitting the will to probate, the objector appeals.

<p>1. Insurance. — Life Insurance. — Bwceptions in Policy. — Limitation of Liability. — There may be a valid stipulation in a policy of life insurance wholly exempting the insurer from liability in case of death from some specified disease, hence a policy may provide that there shall be no liability if the insured die within ' a year from some cause of disease excepted from the general provisions of the contract, p. 457.</p> <p>2. Insurance. — Life Insurance. — Action on Policy. — Defenses.— Limitation of Liability. — Burden of Proof. — In an action on a life policy exempting the insurer from liability in case of death from a specified cause, or from such cause within a specified time, the fact of death from such excepted cause within the time fixed is a matter of defense which defendant must allege and prove by a fair preponderance of the evidence, and it need not be negatived or anticipated by the complaint, p. 458.</p> <p>3. Insurance. — Life Insurance.- — Actions. ■— D efenses. — Limitation of Liability. — That death resulted from a cause as to which the policy exempts the insurer from liability, or, if the exemption is only for a specified time, that it resulted from such cause within such time, if alleged and proved, constitutes a complete defense, pp. 458, 461.</p> <p>4. Insurance. — Life Insurance. — Limitation of Liability. — Instructions. — In an action on a life policy providing that the insurer would not be liable if death resulted from tuberculosis within a year from date of the policy, answered by general denial and a special answer alleging death from the excepted cause within the year, an instruction correctly placing the burden on defendant to prove its special answer, but which also required it to prove by a preponderance of the evidence that it had returned or offered to return the premiums before suit was brought, was radically erroneous, since by the terms of the policy the insurance was in force from the beginning as to all manner of death save from specified causes within the specified time, and, unlike in defenses grounded upon fraud in the application, defendant was under no duty to return the premiums. . p. 458.</p> <p>5. Appeal. — Review.—Instructions. — Antagonistic Instructions. — Where the court gave a requested instruction correctly stating the law relating to appellant’s defense as set up in a special answer, and also gave of its own motion an instruction correctly embodying the same statement of the law, but adding a further statement placing the burden of proof on defendant as to a matter not within the issues, the latter instruction was not only erroneous as being without the issues, but also as being antagonistic with such requested instruction, p. 459.</p> <p>6. Appeal. — Review.—Instructions.—Evidence Rot in Record. — The rule that the court on appeal will not review the instructions where the evidence is not in the record does not apply to prevent a reversal where it appears that instructions given were improper under any evidence admissible under the issues, pp. 460, 461.</p> <p>7. Appeal. — Review.—Refusal of Instructions. — The refusal of requested instructions that go beyond the issues is not error, p. 460.</p> <p>8. Appeal. — Record.—Burden to Show Error. — Appellant need not incorporate a .bill of exceptions containing the evidence in the transcript in order to procure a reversal on instructions where it brings up enough of the record to show that their giving was prejudicial error, since such showing requires a reversal unless it further appears from such record that the error was harmless, and it is appellee’s duty, if it can show that such error could be met and overcome by a consideration of the evidence, to take the proper steps to have same incorporated in the record, p. 462.</p>

<p>1. Taxation. — Exemption from, Taxation. — Scope. — Assessments for Public Improvements. — A local assessment against real property on account of a public improvement, based on benefits accruing therefrom, is not a tax within the meaning of §10144 Burns 1908, Acts 1891 p. 199, enacted pursuant to Constitution, Art. 10, §1, and exempting school and other property from taxation, and such property is not thereby exempted from such assessments, p. 466.</p> <p>2. Municipal Corporations. — Public Improvements. — Assessments. —Exemption of School Property. — Barrett Law. — Notwithstanding public policy might forbid the sale of school property to satisfy a lien, other means could be had for the payment of assessments against such property for public improvements made under the Barrett Law (Acts 1899 p. 237, §4288 et seq. Bums 1901), and, since exemptions from such assessments are not favored, and are seldom implied, it would seem that the terms of that law were broad enough to authorize the assessment of school property for public improvements made thereunder. (Sutton v. School City of Montpelier [1902], 28 Ind. App. 315, and Town of Windfall Oity v. First Nat. Banlo [1909], 172 Ind. 679, criticised.) p. 467.</p> <p>3. Municipal Corporations. — Assessments for Public Improvements. — Statutory Provisions. — Implied Repeal. — The act of 1907 (§§8712, 8713 Bums 1908, Acts 1907 p. 167) providing that the real estate of “all counties, townships, towns, cities and other municipalities” shall be liable for assessments for public improvements, does' not have the effect of repealing §§6670, 6671 Burns 1908, Acts 1903 p. 357, making similar provision as to the real estate of school corporations, but was intended to extend the provisions of the latter act. p. 469.</p> <p>4. Constitutional Law. — Confiscation of Property. — Assessment of School Property for Public Improvements. — Sections 6670, 6671 Burns 1908, Acts 1903 p. 357, providing for the assessment of the property of common school corporations for public improvements, and validating and requiring the payment of assessments previously made against such property for such purposes, are not in conflict with §21 of the Bill of Bights, p. 470.</p> <p>5. Constitutional Law. — Fifth Amendment to United States Constitution. — State Legislation.' — The 5th amendment to the Federal Constitution does not in any way affect legislation by the State, but is a limitation on Congress and affects federal power only. p. 470.</p> <p>6. Constitutional Law. — Due Process of Lam. — Deprivation of Property. — The 14th amendment of the Constitution of the United States, prohibiting the taking of property without due process of law, is not a limitation on the authority of the State legislature over one of the subalternate governmental instrumentalities of the State which it has created and endowed with administrative powers and over the property placed by legislative enactment in its custody and control, and does not affect the plenary power of the legislature to compel taxation, and expenditure of money by municipal corporations for public purposes beneficial to such corporations and in which the general public has an interest, hence §6671 Burns 1908, Acts 1903 p. 357, validating assessments previously made against the property of common school corporations on account of public improvements, and requiring the payment of such assessments, is not violative of such constitutional amendment, pp. 470, 472. *</p> <p>7. Constitutional Law. — Legislative Power. — Public Schools.— The legislature has supreme authority over common school corporations, save only as it is restrained by the State Constitution, p. 472.</p> <p>8. Constitutional Law. — Legislative Power. — Streets and Highways. — The legislature has plenary power over highways and streets, p. 472.</p> <p>9. Execution. — Property Subject to Execution. — Property Assessed for Public Improvements. — Property in use for public or governmental purposes cannot be sold on execution or other legal process, and the rule, which is founded on public policy, prohibits the sale of public school property to pay local assessments for public improvements, p. 473.</p> <p>10. Words and Phrases. — Public Policy. — Public policy is what the people in their fundamental law have declared it to ,be, or what the legislature, acting within its powers, has enacted, or the interpretation placed) upon the laws, fundamental or occasional, by the courts, p. 473.</p> <p>11. Municipal Corporations. — Assessments for Public Improvements. — Payment in Instalments. — Contract.—An agreement entered into by a property owner pursuant to the act of 1889, as amended in 1891 (Acts 1891 p. 323, §4291 Burns 1901), to secure the right to pay a public improvement assessment in instalments, is deemed to be a new and independent undertaking, upon a sufficient consideration, which imposes upon the person executing it a personal obligation to pay the assessment and subjects him to a personal judgment, p. 474.</p> <p>12. Municipal Corporations. — Assessments for PubUe Improvements. — Assessment of School Property. — The legislature was acting within its authority in the enactment of §§6670, 6671 Bums 1908 (Acts 1903 p. 357), providing for the assessment of school property for public improvements, authorizing the payment of such assessments on the instalment plan on waiver of irregularities, and requiring the payments to be made from the special school fund, and such provisions are valid even though other provisions therein implying authority to foreclose and sell are unenforceable, and, in view of the fact that the Barrett Law (Acts 1899 p. 237, §4288 et seq. Burns 1901) at least gave color of authority to make such assessments, and since there is no constitutional inhibition against retrospective statutes of its character, the provisions of §6671 Burns 1908 (Acts 1903 p. 357), validating assessments previously made against school property for public improvements under the Barrett Law, and authorizing their payment, are valid, and authorize a personal judgment against a school corporation for unpaid assessments, p. 475.</p>

From Dubois Circuit Court; John L. Bretz, Judge. Application by Ella B. Mertes, as widow of Louis P. Mertes, deceased, to have certain personal and real property of decedent set off to her as such widow under §2943 Burns 1908,. §2419 B. S. 1881. From an order denying the application, she appeals.

<p>Prom Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by Jennie Doney and another against Thomas J. Leavell and another. Prom a judgment for plaintiffs, the defendants appeal.</p>

<p>Prom Bartholomew Circuit Court; Hugh Wickens, Judge.</p> <p>Action by Elbert A. McAlpin, Trustee, against Prank M. Millikan and others. Prom an interlocutory order appointing a receiver, the defendant Prank M. Millikan appeals.</p>

Prom White Circuit Court; George F. Marvin, Special Judge. Proceedings on. petition of Peter Hepp and others to tile an existing drain, in which Honora Connors remonstrated against the report of the drainage commissioners. Prom a judgment for petitioners, the remonstrant appeals.

From Grant Superior Court; Robert M. VanAtta, Judge. Action by Katherine M. Guynn against the Wabash Water and Light Company. Prom a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)

<p>1. Appeal. — Assignment of Mrrors. — Joint Assignment. — A joint assignment of error in the ruling on demurrers to a second and third paragraph of answer, is not available unless both paragraphs are bad. p. 493.</p> <p>2. Appeal. — Questions Revietoable. — Answers.—Demurrers.—The objection that the sufficiency of certain paragraphs of answer cannot be considered on appeal, because the demurrer thereto was not accompanied by a memorandum of objections, is not available, where the action was pending at the time the act of 1911 (Acts 1911 p-. 415, §344 Burns 1914, subd. 6), requiring a memorandum to be filed with a demurrer to a complaint for insufficient facts, showing wherein the facts are insufficient, was passed, p. 493.</p> <p>3. Judgment. — Action on Foreign Judgment. — In an action to enforce a foreign judgment involving the public policy of the State, the court may inquire whether it contravenes the established public policy, or amounts to an invasion of the laws of the State; but if the original cause of action was personal, transitory in character, and cognizable under the rules- of common law, and not inconsistent with local public policy, and there was jurisdiction of the subject-matter, and of the person, the judgment therein rendered, if valid on its face, must be accorded the force and effect which it has in the jurisdiction in which it was rendered, p. 495.</p> <p>4. Judgment. — Judgment by Confession. — Necessity of Affidavit.— Although §615 Burns 1914, §588 R. S. 1881, requires an affidavit to be filed, with the court, on confession of judgment, showing that the debt is, just and owing, and that such confession is not made to defraud creditors, a confession of judgment is good as between the parties where the affidavit is, insufficient or even where there is no affidavit, p.498.</p> <p>5. Bells and Notes. — Place of Execution. — Presumption.—Place of Payment. — If suit is brought on a promissory note in Indiana, it will be presumed to have been executed within the State; and a note executed in this State, and payable “at a bank,” will be deemed payable at a bank within the State, p. 498.</p> <p>6. Bills and Notes. — Powers of Confession in Notes. — Public Policy. — It is the acknowledged public policy of the State not to recognize powers of confession in promissory notes, pp. 499, 500.</p> <p>7. Judgment. — Warrant of Attorney. — Cognovit Distinguished. — A warrant of attorney was distinguishable from cognovit at common law, and might accompany a note or bill, not as a part thereof, but as a part of the security, and a warrant of attorney was under seal, while a cognovit need not be. p.499.</p> <p>8. Judgment. — Warrant of Attorney. — Cognovit. — Revocation.— Death. — Either a warrant of attorney or cognovit is revoked by death, p. 499.</p> <p>9. Evidence. — Presumption. — Foreign Law. — In the absence of proof of an Illinois statute authorizing the execution of a note containing a power to confess judgment, it will be presumed that the rule with reference to such power is the same as in Indiana, and that it is invalid as contrary to public policy, p. 500'.</p> <p>10. Judgment. — Warrant of Attorney. — Poicei' to Confess Judgment. — Power to confess judgment in a foreign jurisdiction contained in a promissory note, should be strictly construed, and should not be extended by implication or inference in determining the extent of the authority thereunder, p. 500.</p> <p>11. Judgment. — Foreign Judgment. — Enforcement. —Full Faith and Credit. — To hold invalid as contrary to the public policy, a power to confess judgment contained in a promissory note executed and payable within the State, pursuant to which judgment was confessed in another state, does not violate the full faith and credit clause of the Federal Constitution, p. 501.</p> <p>12. Bills and Notes. — Place of Payment. — A promissory note payable “at Gary, Indiana, or elsewhere,” is payable within the State, p. 501.</p> <p>13. Bills and Notes. — Law Governing. — The validity of a promissory note payable within the State, as well as the capacity of the parties thereto, must be determined by the laws of this State, p. 501.</p>

<p>From Madison Circuit Court; Charles K. Bag of, Judge.</p> <p>Prosecution by the State of Indiana against Grant Anderson and another. From a judgment of conviction, the defendants appeal.</p>

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Prosecution by the State of Indiana against William M. Harris. From a judgment of conviction, the defendant appeals.</p>

<p>Prom Dubois Circuit CourtJ ohn L. Brelz, Judge.</p> <p>Action by Louis J. Bretz, as receiver of Louis R. Mae Donald, against the Southern Railway Company and another. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1894 Burns 1908, Acts 1901 p. 565.)</p>

From. Greene Circuit Court; Charles E. Henderson, Judge. Action by Andrew J. Moore, administrator of tbe estate of Frank Miller, deceased, against tbe Shirley Hill Coal Company. From a judgment for plaintiff, tbe defendant appeals.

<p>1. Larceny. — Petit Larceny. — Indictment.—An indictment for the larceny of a bank check for the sum of $200 is sufficient without charging that there were funds in the bank to meet the check, since the felonious taking of a cheek would amount to petit larceny under §2270 Burns 1914, Acts 1907 p. 86, if its value was less than $25, and the question of the value of such an instrument is for the determination of the jury. p. 521.</p> <p>2. Larceny. — Talcing Banlc Oheclc. — Indictment.—Sufficiency.—An indictment for the larceny of a bank cheek is not insufficient for failing to aver that accused cashed the check, or presented it for payment, and because the check described could not have been cashed by him, since to constitute the crime of larceny it is not necessary that the taking be for purposes of gain to the thief, or of another, p. 521.</p> <p>3. Larceny. — Obtaining Property by False Pretense. — Distinction. —The taking of property will amount to larceny, if by means of any trick or artifice the owner is induced to part with the possession only, still meaning to retain the right of property; but if the owner part with both the possession of the goods and the right of property therein, the offense is that of obtaining property by false pretense, p. 523.</p> <p>4. Larceny. — Evidence.—Sufficiency.—Evidence showing that the accused, who was charged with the larceny of a bank check, sold stock to the prosecuting witness by means of fraudulent representations as to its value and earning capacity, that the check was executed in payment for such stock, and made payable to the order of the company represented by accused, and that the maker on delivering the cheek to accused intended to invest the company with the title to the check, does not authorize a conviction for the crime of larceny, p. 524.</p>

<p>Prom Madison Circuit Court; Charles K. Bagot, Judge. ■</p> <p>Prosecution by the State of Indiana against John Wmegardner. Prom a judgment of conviction, the defendant appeals.</p>

Prom Johnson Cirenit Court; William E. Deupree, Judge. Action by the Capitol Lumber Company against Samuel Y. Anderson and another. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Railroads. — Operation.—Nuisance.—Liability for Damages to Adjacent Land. — Tbe owner of land adjacent to a railroad cannot recover damages caused by cinders and smoke from passing trains, necessitating the removal of some of his buildings to avoid tbe danger from tire, and causing discomfort and annoyance in the occupation of other buildings, unless the injury was the result of negligence in the operation of the trains, p. 542.</p> <p>2. Eminent Domain. — Construction of Railroad. — Liability for Damage to Adjacent Land. — Statutes.—Section 6 of the eminent domain act (Acts 1905 p. 52, §934 Burns 1914), providing that the appraisers, in making their report as to damages sustained by property owners in proceedings arising under such act, shall include “such other damages as will result to- any persons or corporation from the construction of the improvements in the manner proposed,” even if authorizing an adjacent landowner, none of whose land was taken for a railroad right of way, to recover damages, would authorize such recovery only where it appears that the right of way was acquired in the exercise of eminent domain, and not by purchase, p. 543.</p> <p>3. Action. — Statutory Remedy. — Pleading. — One who seeks to avail himself of a remedy provided by statute must bring himself substantially within the provisions of the statute on which he relies, p. 543.</p> <p>4. Pleading. — Complaint.—Presumptions.—It is presumed that a party will state his cause of action as favorably to himself as the facts will permit, p. 543.</p>

Prom Marion Circuit Court (20,821); Charles Bemster, Judge. Action for mandate by tbe State of Indiana, on the relation of the Indianapolis Free Kindergarten and Childrens Aid Society, against Frank A. Morrison and others, as members of the Board of School Commissioners of the School City of Indianapolis. From a judgment for relator, the defendants appeal.

<p>1. Adverse Possession. — Acquisition of Bight. — Occupancy.—One who, intentionally or by mistake, takes actual, visible and exclusive possession of another’s land and holds the same for twenty years as his own, acquires a title in fee simple, p. 557.</p> <p>2. Adverse Possession. — Elements.—Claim of Bight. — Adverse possession consists in the actual, open, notorious, exclusive and continuous possession of lands under a claim of right, and such claim of right need not be established by proof of oral declarations, but may be inferred from the manner of occupancy and positive acts of ownership inconsistent with that of the true owner, and from erecting, repairing, occupying or leasing buildings thereon, p. 557.</p> <p>3. Adverse Possession. — Evidence.—Presumptions.—Where one is shown to have been in possession of land for a period of limitation, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse, but the presumption may be rebutted by proof that the possession in its origin was merely permissive, p. 557.</p> <p>4. Adverse Possession. — Occupancy and Improvement. — Where it appeared that defendant and her mother had lived upon the land in dispute from 1864, the date of an alleged will under which plaintiff was claiming, until the death of the mother in 1891, and openly exercised acts of exclusive ownership of such land, including the making of improvements, the cultivation of the same, and the payment of taxes, and that from the death of her mother, defendant, who was her sole heir, continued to occupy the same land under the same conditions, had thereby acquired an absolute title, regardless of whether any oral declarations were made that the occupancy was under a claim of right, p. 557.</p> <p>5. Limitation op Actions. — Ignorance of Cause of Action. — The running of the statute of limitations is not prevented by the fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, nor is the commencement of the period of limitation thereby postponed until he discovers the facts or learns of- his rights thereunder, p. 559.</p> <p>6. Limitation of Actions. — Nature of Statute. — Statutes of limitation are regarded as statutes of repose, resting upon sound policy and tending to the peace and welfare of society, and they are as essential to the general welfare and wholesome administration of justice as any other statutes, p. 559.</p> <p>7. Adverse Possession. — Effect of Statute of Limitations. — Statutes of limitation operate, as a rule, not only to cut off one’s right to sue to recover real property which has been in the adverse possession of another for a specified time, but also to vest the disseisor with title which he may use either as a weapon or as a shield, as necessity may demand, in any court or procedure, pp. 560,561.</p> <p>8. Adversé Possession. — Character of Possession. — Title Acquired. —The possession of land under such conditions as are manifested by the true owners of land in the community, is adverse possession, and, if maintained for the statutory period, vests the possessor with the title thereto, not only as against strangers, but also as against the former owner thereof, as effectively as if there had been a formal conveyance, p. 561.</p>

<p>Prom Huntington Circuit Court; U. S. Leslv, Special Judge.</p> <p>Prosecution by the State of Indiana against Jacob Boos. Prom a judgment of conviction, the defendant appeals.</p>

Prom Hancock Circuit Court; William A. Rough, Judge. Action for mandate by tbe State of Indiana, on tbe relation of Prank H. Reeves, against Abram W. Frost, .Trustee of Center School Township of Hancock County. Prom a judgment for relator, tbe defendant appeals.

<p>Prom Laporte Circuit Court; James F. Oallaher, Judge.</p> <p>Action by Henry Hammond against Thomas Toyne and another. Prom a judgment for defendants, the* plaintiff appeals.</p>

<p>1. Appeal. — Subsequent Appeal. — Questions Reviewable. — The decision of the Appellate Court that a telephone company whose poles are used by a city for its police telephone system, as well as an electric light company whose poles are set in the street under a license from the city, are liable for negligence to a city employe injured by their wires while upon their poles to repair the city’s wires, precludes consideration by the Supreme Court on a subsequent appeal of the same cause, of defendant’s proposition that plaintiff, while upon the poles of the electric company, was merely a licensee, and that there was no violation of any duty owing to him as such. p. 588.</p> <p>2. Electricity. — Injuries Incident to Production or TJse. — Actions. —Verdict.—Answers to Interrogatories. — Where a complaint, in addition to charging negligence in failing to properly insulate electric wires also averred negligence in maintaining such wires in dangerous proximity to telephone poles and cables, about which plaintiff was working at the time of his injury, answers to interrogatories showing that the defendant was not negligent with respect to the insulation of its wires are not inconsistent with a verdict for plaintiff, since the verdict may have been based on the other charge of negligence, p. 589.</p> <p>3. Electricity. — Injuries Incident to Production or Use. — Actions. —Instructions.—An instruction that a telephone company and an electric company in the operation of their lines are required to “exercise that reasonable care consistent with the proper operation of their business which would be observed by reasonably prudent persons under like circumstances, and to increase the care with any change in conditions likely to increase the danger, and having due regard to the existing state of science and invention”, was not objectionable as requiring them “to purchase every freak device turned out, and take the chance of its being a success or a failure”, but it merely required the use of care commensurate with the danger involved, namely, the highest degre of care practicable under the circumstances, p. 589.</p>

<p>Prom. Yigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Proceedings by William Huffman and others against Robert M. Burns and others. Prom a judgment finding them guilty of contempt, the defendants appeal.</p>

Prom Martin. Circuit Court: James W. Ogdon, Judge. Action in quo warranto by tbe State of Indiana, on the relation of Prank M. Bateman, County Surveyor of Martin County, against Thomas G. Hart. Prom a judgment for defendant, the relator appeals.

Prom Starke Circuit Court; Enoch Myers, Special Judge. Action commenced by Paulina Friebe against Elmer D. Elder and others, in which Adolph Friebe and others were substituted as parties plaintiff on the death of the original plaintiff. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1914, Acts 1901 p. 565.)

Prom Shelby Circuit Court; 'Albert F. Wray, Special Judge. Action in mandamus by the State of Indiana, on the relation of Albert R. Keaton, as drainage commissioner, against William A. McDonald, as treasurer of Shelby County. Prom a judgment for relator, the defendant appeals.

<p>1. Ceiminal Law. — Special Judge. — Tenure.—Under §2075 Burns 1914, Acts 1905 p. 584, §204, providing that a special judge in a criminal cause “shall have power to hear and determine such cause until the same is finally disposed of”, such special judge has exclusive control and jurisdiction until the cause is finally disposed of according to law, so that on reversal of the judgment in a trial before him because the offense was defectively charged, his authority is not limited to a compliance with the mandate in the judgment of reversal, but continues after the filing of an affidavit correctly charging the offense, since the filing of such affidavit is not the commencement of a new cause, but is the same cause properly charged, p. 616.</p> <p>2. Ceiminal Law . — Affidavit.—Sufficiency.—An affidavit charging the commission of a public offense is not fatally defective because an element of the charge is- not alleged with nice exactness, if it fairly appears from the language used. p. 617.</p> <p>3. Cbiminal Law. — Separate Trial of Codefendants. — Application l>y Prosecution. — -Although §237 Bums 1914, §237 R. S. 1881, had the effect to abolish common-law crimes, it neither excludes common law procedure in criminal causes, nor prevents resort to ' common law practice in matters, not covered by statute, so that the common law rule that separate trials of persons1 jointly in-dieted may be had on demand of the prosecution remains and is unaffected by §2135 Burns 1914, Acts 1905 p. 584 §259, providing for separate trials in certain cases at the instance of a defendant, p. 617.</p> <p>4. Judges. — Change of Judge. — Refusal to Or ant Change. — A proper application for a change of judge, filed in time, must be granted, and a refusal will be deemed prejudicial error on appeal in the absence of a contrary showing, p. 618.</p> <p>5. Judges.— Change of Judge After Reversal.— Statutes.— Under §423 Burns 1914, Acts 1907 p. 85, providing that after a judgment has been reversed on appeal and the cause remanded for a new trial, either party is entitled to- a change of venue from the judge before whom the case is pending, notwithstanding any changes theretofore taken, upon filing an affidavit that a fair trial cannot be had because of the bias or prejudice of the judge, the granting of a change of judge is mandatory where a proper application is timely filed, p. 619.</p> <p>6. Cmminal Law. — Change of Judge After Reversal. — Statutes.— Neither the language of §423 Burns 1914, Acts 1907 p. 85, providing that after a judgment is reversed on appeal and the cause ’ remanded for a new trial a change of venue from the judge may be had, etc., nor the title of the act, discloses an intention on the part of the legislature to limit application of the act to civil causes, and since words and phrases in a statute are to be taken in their plain, ordinary and usual sense, unless to do so would be plainly repugnant to the legislative intent or the context of the statute, the act must be held to apply to criminal as well as civil actions, p. 619.</p> <p>7. Constitutional Law. — Legislative Power. — Special Judges.— Under §10, Art. 7, of the Constitution, the legislature has authority to provide by statute for special judges, p. 620.</p>

<p>1. Drains.— Improvement.— Evidence.— Sufficiency.— The finding of the trial court in a proceeding for the improvement of a drain, that a proposed addition to such drain will be of sufficient capacity to drain the land affected cannot be disturbed on appeal, in view of testimony of the drainage commissioners, who were experienced in engineering and drainage work, that, considering the average rainfall, the character of the land and area to be drained, and other conditions present, the proposed drain would • be of sufficient capacity, p. 624.</p>

Prom Grant Superior Court; Charles E. Sturgis, Special Judge. Proceedings on the petition of John G. Turner and others for the tiling of a drain. Washington Jolly and others filed remonstrance, and from a judgment for petitioners, the remonstrants appeal.

<p>Prom Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action of habeas corpus by Hoover G-. Mahan- against James L. Hendricks and others. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>Prom Lake Superior Court; Virgil 8. Reiter, Judge.</p> <p>Action by William Gillespie against the Inland Steel Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Eminent Domain. — Objections.—Sufficiency.—Objections to the complaint of an electric company in proceedings to condemn land for a right of way, averring that the complaint does not state facts sufficient to authorize the court to appoint appraisers as sought, and that it does not set up sufficient facts to confer jurisdiction on the court for the purpose and objects set out therein, were properly overruled, since such objections must be specific and not general, p.653.</p> <p>2. Eminent Domain. — Complaint.—Attempted Agreement of Purchase. — Burden of Proof. — In proceedings for the condemnation of land for a right of way for the erection of an electric transmission line, the complaint should allege that plaintiff has been unable to agree for the purchase of the land or interest therein sought, and plaintiff has the burden of proving a good faith effort to purchase and inability to agree, hence overruling an objection averring that plaintiff failed, before the commencement of the action, to present to defendants any definite or tangible proposition on which an agreement as to damages could be reached, was harmless, p. 653.</p> <p>3. Eminent Domain. — Complaint.—Description of Land Sought.— Sufficiency. — A description in a complaint to condemn land for an electric transmission line, so describing the land sought that a surveyor or skilled person can locate it, is sufficient, p. 654.</p> <p>4. Eminent Domain. — Complaint.—Description of Land Sought.— Sufficiency. — Where the land sought to be condemned is described as bounded by a river, street, or public highway, the description is sufficient, and ordinarily it is also sufficient if the land is described as bounded by a railroad right of way. p. 654.</p> <p>5. Eminent Domain. — Description of Land Sought. — Sufficiency.— In proceedings to condemn land for an electric transmission line, a complaint describing the land as a strip ten feet wide lying west of and adjoining a certain railroad right of way, and from which it appears that the land sought is not within an incorporated town or city, sufficiently describes the land as against an objection which fails to state that the land is unenclosed or unimproved, since,, if enclosed and improved, it will be presumed! that the railroad company obeyed the statute (§§5447, 5448 Burns 1914, Acts 1885 p. 224) by constructing and maintaining a fence on the line between its right of way and the land of the adjacent owner, and such fence would be a sufficient monument to enable a surveyor to locate the land sought, p. 655.</p> <p>6. Corporations. — Validity of Incorporation. — Collateral Attach.— An objection that plaintiff in a condemnation proceeding is a subsidiary corporation acting in combination with other similar ones in pursuit of an unlawful monopolistic conspiracy in restraint of trade and to destroy competition, is a collateral attack on the legality of plaintiff’s corporate existence, and is not permissible in such proceeding, p. 655.</p> <p>7. Eminent Domain. — Land for Electric Transmission Line. — Right to Use For Telephone Line. — Statutes.—Under §8 of the act of 1907 (Acts 1907 p. 277, §5081 Burns 1914), an electric company has authority to operate a telephone line for its own use over the land taken by it for a right of way for its electric transmission line, as incidental to the proper discharge of its public duties in the operation of such electric transmission line. p. 656.</p> <p>8. Appeai,. — Review.—Harmless Error. — Overruling Objection to Complaint. — There was no error in sustaining a demurrer to an objection challenging the right of plaintiff in an eminent domain proceeding to go on defendant’s land, outside of and adjoining the strip appropriated, to cut trees, overhanging branches, etc., where no such right was sought by the complaint or conferred by the judgment appealed from. p. 657.-</p> <p>9. Eminent Domain. — Land for Electric Transmission Une.— Statutes. — -Although §10 of the act of 1907 (Acts 1907 p. 277, §5081 Burns 1914), relating to the acquisition of land through eminent domain proceedings, as applied to electric companies, was limited to such companies as were organized to produce electricity by water power, the amendment of 1909 (Acts 1909 p. 276, §5083 Burns 1914), extended the powers and privileges to all companies “organized to produce electricity.” p. 657.</p> <p>10. Aepeai.. — Review.—Demurrer to General Demurrer. — A demurrer to a general demurrer is frivolous, hence overruling a demurrer to objections to a complaint in a condemnation proceeding, construed by objectors as general demurrers to the complaint, did not involve a consideration of the complaint’s averments, and a motion to set aside the submission, on the theory that such ruling in effect left the plaintiff with no complaint, was properly overruled, p. 657.</p>

<p>From Laporte Superior Court; Cornelius B. Collins, Special Judge.</p> <p>Action by the Chicago, Lake Shore and South Bend Railway Company against Paul Rose and others. From a judgment for plaintiff, the defendants appeal.</p>

Prom Labe Circuit Court; Cassius M. Greenlee, Special Judge. Action by tbe State of Indiana against James A. Patterson to remove bim from the office of Prosecuting Attorney. Prom a judgment for defendant, tbe State appeals.

Prom Owen Circuit Court; William E. Deupree, Special Judge. Action by tbe State of Indiana, on tbe relation of George P. Steiner, Trustee of Jefferson Township, Owen County, against Prank Piscus and .others. Prom a judgment for defendants, the relator appeals.

Prom Jasper Circuit Court; James P. Wason, Special Judge. Action by Cordelia M. Williams against W. Prank Osborne and others to enjoin tbe construction of a proposed drain, and to set aside, cancel and enjoin tbe collection of assessments levied tberefor. Prom a judgment for defendants, tbe plaintiff appeals.

Prom Superior Court of Tippecanoe County; John 8. Lairy, Special Judge. Action by the State of Indiana, on the relation of Ira E. Sailor and others, against Charles O. Blind and others. Prom the judgment rendered, the relators appeal.

Prom Henry Circuit Court; Ed Jackson, Judge. Proceeding on the petition of Charles L. Cook and others to establish a drain, in which John C. Hardin and others remonstrated. Prom a judgment for petitioners, the remonstrants appeal.

From Hamilton Circuit Court; Joseph Oombs, Special Judge. Proceedings on the petition of William H. Whitsell and others for the improvement of a highway. From a judgment of the circuit court dismissing the appeal from the order of the board of commissioners, Hamilton Metsker and others appeal.

From Clay Circuit Court; John M. Rowley, Judge. Action by the Vandalia Railroad Company against the Clay County Home and Savings Association and others. From a judgment for the defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1908, Acts 1901 p. 590.)