Volume 182 — Indiana Reports

<p>From St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Prosecution by the State of Indiana against Ben Kahn. From a judgment of conviction, the defendant appeals.</p>

From Pulaski Circuit Court; Francis J. Vurpillat, Judge. Remonstrance by Ray Cox and others against the granting of a liquor license to Fred Timm. From a judgment of the circuit court granting the license, the remonstrants appeal.

<p>1. Taxation. — Omitted Property. — Duty of Assessor. — County and City Officials. — It is the duty of the county assessor to search for property not listed for taxation, at least to the extent that the omissions may be disclosed by the public records of the county, and such burden does not rest upon the auditor or treasurer of the county, nor upon the clerk or treasurer of a city affected by such omission, p. 24.</p> <p>2. Taxation. — Omitted Property. — Authority of City Officials.— Although by §10429 Burns 1914, Acts 1891 p. 199, §254, the office of city assessor and the city board of equalization is abolished, indicating the vesting of the subjects of assessments and equalization in the county officers, and though cities can, by furnishing information to the auditor or treasurer of the county, require them to act under §§10310, 10353 Burns 1914, and thus obtain the listing of omitted property for taxation, a city may nevertheless enter into a valid contract independent of the county authorities employing some one to search for and discover property that has been omitted from the city’s tax duplicates, p. 24.</p> <p>3. Municipal Corporations. — Taxation. — Search for Omitted Property. — Liability on Contract. — Evidence.—Where a city entered into a contract employing an investigator to search for and discover property that had been omitted from the city’s tax duplicates, agreeing to pay for such services a sum equal to a certain percentage of the taxes paid into the treasury by reason of such discoveries, the city was liable in an action thereon for the compensation for causing certain property to be placed upon the duplicates, although the evidence showed that the city authorities had known of the existence of such property and had not listed same for taxation on the theory that it was not taxable within the jurisdiction, where it further appeared that after plaintiff reported such property, and the city officials refused to place it upon the duplicates, he took such steps as to cause it to be listed by the county authorities, and again reported to the city, whereupon the same was listed and the taxes collected by it. p. 25.</p> <p>4. Contracts. — Parol Evidence. — Rights of Assignee. — Evidence showing that the parties to a contract of employment to search for and discover property omitted from the tax duplicates did not intend that it should include the listing of certain omitted property of which the officials had knowledge, could not affect the rights of an assignee of the contract to compensation in causing such property to be listed, where the contract was broad enough to include same and assigned to him without any notice other than its terms, p. 27.</p> <p>5. Taxation. — Discovery of Property. — Contract.—“Omitted Property". — A contract of employment to “search for and discover property that has been secreted and omitted from the tax duplicate”, is none the less a contract for the discovery of omitted property, whether omitted through misconception of the law, or by secretion, and authorizes a recovery for services rendered in causing the listing of omitted property of which the officials had prior knowledge, but wbicb they had not taxed in the belief that it was not taxable, where the same was in fact taxable, and from a consideration of the whole instrument the purpose is apparent to have all taxable property taxed, p. 28.</p>

From Grant Circuit Court; H. J. Patilus, Judge. Proceedings on petition of John R. Groff and others for the location of a highway, in which Alexander H. Fisher filed remonstrance. On appeal to the circuit court judgment was rendered for petitioners, and from that judgment the remonstrant appeals.

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Action by Estella S. Stokes against the City o£ Indianapolis. From a judgment for plaintiff, the defendant appeals.</p>

From Clay Circuit Court; John M. Rawley, Judge. Action by James Bemis against the Guiri Drainage Company and others to enjoin proceedings for drainage construction. From a judgment for defendants, the plaintiff appeals.

<p>1. Raieboads.' — Regulation.—Statutes.—Glass Legislation. — While railroads may he placed in a class to themselves for some legislative purposes, such classification, to be valid, must be for purposes that have to do with duties peculiar to them as carriers, or with dangers peculiar to their operation, p. 58.</p> <p>2. Raieboads. — Payment of Employes. — Statutes.—Validity.—Sections 2683e, 2683d Burns 1914, Acts 1911 p. 446, requiring railroad companies to pay any employe in full within seventy-two hours after he has been discharged or has voluntarily quit the service, and providing certain penalties, are unjustly discriminatory and violate §23, Art. 1, of the State Constitution, since the classification made is arbitrary .and without any valid reason for its basis. (Seelyville Goal, etc., Co. v. MeGlosson [1906], 166 Ind. 561, distinguished.) p. 58.</p>

<p>1. Receivers. — Sales.—Decree.—Suit to Modify and Enforce Decree. — Where, notwithstanding persistent efforts were made under a decree ordering the property of an insolvent railroad corporation to be sold for the payment of the receiver’s indebtedness and other debts, fixing the minimum selling price, and providing that the property should be sold subject to a contract relative to the maintenance of the road and shops, no sale was had because no one was willing to bid the minimum price, or to purchase the road subject to the conditions, a creditor could maintain a suit in equity to remove the obstructions to the execution of the decree and procure its enforcement, pp. 67, 68,69.</p> <p>2. Action. — Equity.—Constitutional and Statutory Provisions.— Equity jurisprudence in its fullness is in force except as curtailed by constitutional and statutory provisions, p. 68.</p> <p>3. Appeal. — Decisions BeviewaMe. — Pinal Judgment. — The judgment rendered in a creditor’s suit to remove obstructions to the execution of a decree ordering the sale of an insolvent’s property for the payment of debts, is a final judgment within the meaning of §671 Burns 1914, §632 R. S. 1881, which grants an appeal from all final judgments, p. 69.</p> <p>4. Receivers. — Sale of Property. — Terms of Bale. — It is within the sound discretion of the court, on decreeing the sale of property in the hands of a receiver, to accompany the decree with a direction that the property should not be sold for less than a specified price, p. 70.</p> <p>5. Receivers. — Bale of Property. — Terms of Bale. — Where, notwithstanding repeated efforts to sell the property of an insolvent railroad corporation under a decree specifying a minimum selling price and providing that the sale should be subject to a contract relative to the maintenance of the road and shops, no sale was had because no one would bid the required amount or agree to purchase subject to the conditions, and in the meantime the receiver was operating the road at much loss and in a manner not conforming to the best interests of any one concerned, the court had the power on its own initiative, or on the application of any creditor, to remove the obstructions to the execution of the decree, and its denial of such relief in a suit instituted by a creditor for that purpose was error, pp. 70, 71.</p> <p>6. Equity. — Decree.—Amendment or Change. — Yfhile the essential judicatory part of a decree may not be changed by a court after the term when it was rendered, those parts which are merely directory as to the mode of its execution may be changed at any term. p. 70.</p> <p>7. Receivers. — Bale of Property. — Decree.—Where neither the statute under which a railroad company was incorporated, nor a contract relative to the maintenance of its road and shops, entered into by it with a township in consideration of a subsidy, confined the company to the use of steam as a motive power, the court on decreeing a sale of the road by the receiver was not warranted in ordering that the sale be made upon the condition that the road should be operated as a steam road. p. 72.</p> <p>8. Receivers. — Sale of Property. — Terms of Bale. — Railroads.— The receiver of a railroad corporation was not bound by a contract which the corporation had entered into in consideration of a township subsidy, agreeing to maintain its shops and terminals at a certain place and to maintain its road between certain points, and it was improper for the court, on decreeing a sale, to order that it be made subject to such contract, since the operation of a railroad at a loss can not be compelled, either in the hands of the company, or of a receiver, or of a purchaser at a receiver’s sale. p. 72.</p> <p>9. Receivers. — Bale of Property. — Adjudicating Priorities of Creditors. — On appeal from the judgment rendered in a suit by the holder of receiver’s certificates to remove obstructions to the sale of an insolvent railroad corporation’s property by modifying tbe terms of sale contained in tbe decree, and seeking an adjudication of the priorities of certain creditors, the court’s refusal to adjudicate such priorities, and tbe postponement of such adjudication, -will not be reviewed, since it can be neither said that tbe trial court bad no right to postpone such consideration, nor assumed that tbe settlement of priorities, when ultimately made, will not be correct, p. 74.</p>

Prom Superior Court of Marion County (76,123); Pliny W. Bartholomew, Judge. 'Information in quo warranto by the State of Indiana, on the relation of James Bingham, Attorney-General, against the Home Brewing Company of Indianapolis. Prom a judgment for defendant, the relator appeals.

<p>1. - Appeal. — Burden to Show Error. — It is the duty of appellant to show by his brief that there is reversible error, p. 99.</p> <p>2. Appeal. — Briefs.—Sufficiency.—No question is presented by appellants’ brief where merely abstract propositions are set out under “points and authorities” with no specific mention of any ruling that is relied on as error, but in such case questions may be presented by the discussion in appellees’ brief of certain errors alleged by appellant, p. 99.</p> <p>3. Eminent Domain. — Damages.—Opinion Evidence. — Instructions. —In a proceeding for the condemnation of land for water-works purposes, an instruction that in assessing the amount of damages the jury is not required as a matter of law to accept the opinions of witnesses as to value, but that it must exercise its own judgment in determining that question, as well as the amount of damages, after a consideration of all the evidence, was not objectionable as stating that the jury should be the judge of the damages sustained without regard to the evidence, p. 100.</p> <p>4. Appeal.— Review.— Instructions. — • Invited Error.— An instruction given by the court, though probably erroneous, will not work a reversal, where from a consideration of the record it appears that the instruction was given for the purpose of sustaining appellants’ contention that certain evidence to which appellants had objected should not be considered by the jury. p. 100.</p> <p>5. Appeal. — Review.—Refusal of Instructions. — The refusal of requested instructions is not error, where they are substantially embodied in instructions given, p. 101.</p> <p>6. Eminent Domain. — Damages.-—Evidence.—In a proceeding for the condemnation of land for water-works purposes, the admission of evidence as to revenue derived by the owner from the use of the land, and the water which it fronted, as a harbor, was not error, since proof of the value for every purpose of the land sought to be taken is proper, and evidence of the revenue may be considered as throwing light upon the question of value. p. 101.</p>

From Superior Court of Vanderburgh County; Fred M. Hostetter, Judge. Action by the State of Indiana, on the relation of the Evansville Independent Telephone Company, against Edward Stickelman and others. From a judgment for defendants, the relator appeals.

Prom Wabash Circuit Court; A. E. Plummer, Judge. Highway proceedings on the petition of Edward H. Myers and others. Prom the judgment of the circuit court dismissing their appeal from the judgment rendered by a joint session of the boards of county commissioners of the counties abutting the proposed improvement, the petitioners appeal.

<p>Prom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Prosecution by tbe State of Indiana against William Waldon. Prom a judgment of conviction, tbe defendant appeals.</p>

<p>From Clark Circuit Court; J ere West, Special Judge.</p> <p>Action by Marion E. Pangburn against the American Surety Company of New York. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Mandamus. — Jurisdiction of Supreme Court. — Actions for mandate can be begun in the Supreme Court under §1224 Burns 1914, Acts 1911 p. 541, only when necessary for the exercise of its functions and powers as an appellate tribunal, so that relief can not be granted on a petition to it praying the issuance of a mandate to the lower court to take steps permitting the perfection of an appeal in a cause not appealable, p. 129.</p> <p>2. Drains. — Proceedings to Establish. — Appointment of Appraisers. — Appeal.-—Persons affected by a proposed drainage construction under the act of March 10, 1913 (§§8233b-8233el Burns 1914, Acts 1913 p. 433), who were not petitioners and did not intervene as provided in §13 of the act (§8233n Burns 1914) and raise the issues therein authorized, or attempt to question the jurisdictional fact, but who, after the appointment and qualification of appraisers, appeared and applied for an appeal, merely averring generally that they were interested and were aggrieved by the order appointing the appraisers, do not come within any of the provisions of the act authorizing an appeal, and cannot perfect their appeal under §6021 Burns 1908, §5772 R. S. 1881, since that section is not applicable to such proceeding, pp. 131, 133.</p> <p>3. Drains. — Proceedings to Establish. — Jurisdictional Fads. — In a proceeding under §13 of the act of March 10, 1913 (§8233n Burns 1914, Acts 1913 p. 433), asking the appointment of appraisers to assess the benefits and damages resulting from the construction of a proposed drainage system, the board of commissioners was bound to determine, as a jurisdictional fact, that the petitioners for the drain constituted a majority of the owners of the land affected, before appointing the appraisers, p. 131.</p> <p>4. Counties. — Board of County Commissioners. — Decisions Appeal-able. — Under §6021 Burns 1914, §5772 ft. S. 1881, authorizing appeals from decisions of boards, of county commissioners, appeals may be taken only from such decisions as involve judicial action and are so final in their nature as to put an end to the proceedings before the commissioners, p. 132.</p> <p>5. Dbains. — Proceedings to Establish. — Appointment of Appraisers. —Appeal.—Where a sufficient petition to invest the board of ' commissioners with jurisdiction of a drainage proceeding ha<s been filed, the subsequent appointment of appraisers to assess the benefits and damages is an executive or administrative function, and as a general rule no appeal will lie from an interlocutory order making such appointment, unless expressly authorized by the statute controlling the proceeding, p. 132.</p> <p>6. Appeal. — Bight of Appeal. — The right of appeal is purely statutory, and may be extended, limited, or entirely withheld, at the discretion of the legislature, p. 133.</p>

Prom Madison Circuit Court; Charles K. Bagot, Judge. Drainage proceeding on the petition of Pearl McCaslin and others. Prom a judgment locating and establishing the drain, Andrew 'Woodring and others appeal.

<p>1. ConsTiTUTionAi, Law. — Police Power. — Bxercise of Power.'— Statutes. — Removal of Weeds ~by Railroads. — The police power is that inherent sovereignty of the State which, it is its right and duty to exercise for the health, morals or general welfare of its citizens, and includes the right to impose restraints upon the use and disposal of articles found by experience, or upon inspection, to injuriously affect the general public in those respects, and since legislation to that end, which is uniform and general and applies alike to all persons in the same circumstances, is not in conflict with either the 14th amendment of the Federal Constitution, or §23, Art. 1 of the State Constitution, §§5524, 5525 Burns 1914, Acts 1889 p. 146, requiring railroad companies to cut down and destroy all noxious weeds on lands occupied by them are not open to the objection that they contravene those constitutional provisions, p. 143.</p> <p>2. Railroads. — Failure to Destroy Weeds. — Action for Penalty.— Complaint. — A complaint for the recovery of the penalty provided by §5525 Burns 1914, Acts 1889 p. 146, for failure of a railroad company to cut down and destroy noxious weeds upon its premises, need not aver that the plaintiff has sustained actual damages, p. 144.</p> <p>3. Railroads. — Failure to Destroy Weeds. — Statutory Provisions.— Constitutional Law. — Section 5525 Burns 1914, Acts 1889 p. 146, imposing a penalty on railroads for failure to destroy noxious weeds, and providing that the same may be recovered by “any person aggrieved,” is not unconstitutional as depriving railroad corporations of their property without due process of law and without compensation, since the penalty imposed is for a violation of a duty, and the railroad company can not complain that the penalty, when collected, is paid to the complaining party, p. 144.</p> <p>4. Railroads. — Failure to Destroy Weeds. — Action for Penalty.— Appeal. — Questions Reviewahle. — Under the provisions of §§1389, 1391 Burns 1914, Acts 1903 p. 280, Acts 1901 p. 565, providing that no appeal can be taken to the Supreme or Appellate Court in cases where the amount in controversy does not exceed $50, except that appeals may be had to the Supreme Court in cases not otherwise appealable, where a question is involved as to the validity of a franchise or ordinance, or as to the constitutionality of a statute, no question other than the constitutionality of the act can be presented on appeal from a judgment awarding the penalty provided by §5525 Burns 1914, Acts 1889 p. 146, against a railroad company for failure to cut down and destroy weeds upon its premises, p. 144.</p>

From Jasper Circuit Court; George F. Marvin, Special Judge. Drainage proceedings on the petition of Francis W. Powers and others, in which John Brown and others remonstrated. From a judgment for petitioners, the remonstrants appeal.

From Superior Court of Marion County (82,991); James M. Leathers, Judge Pro Tern. Action by the State of Indiana, on the relation of Edwin E. Carpenter, against Samuel M. Ealston, Governor, and others. From a judgment for defendants, the relator appeals.

<p>Prom Howard Circuit Court; B. C. Moon, Special Judge.</p> <p>Action by Mary A. Gretzinger (nee Beedle), administratrix of the estate of Baily Beedle, deceased, against The Wabash Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—Averment of negligence. — Theory.—A. complaint, in an action by a railroad switchman against the company for injuries by falling on a plank crossing maintained between defendant’s tracks, alleging that the crossing so maintained by defendant covered a space of about six feet and inclined one inch to every foot, that by reason of such incline the crossing was dangerous, that the engines operated by defendant were constantly leaking steam and water which made such crossing wet and slick and thus enhanced the danger therefrom, that on the day of the injury defendant operated an engine which was badly out of repair and leaked unusual quantities of water on the crossing which formed ice, and “that by reason of said ice and said incline and said boards being wet and frozen and slick,” the crossing was highly dangerous, etc., was sufficient against demurrer on the theory that the injury was the proximate result of two combined causes, p. 174.</p> <p>2. Master and Servant. — Injuries to Servant. — negligence.—Instructions. — Where the complaint in an action for injuries to a railroad switchman, caused by falling on a crossing maintained by defendant, charged that the boards of the crossing were inclined, that as a result of water and steam leaking from defendant’s engine they were rendered wet and slick and that on the day of the injury ice had formed thereon, and that “by reason of said ice and said incline and said boards being wet and frozen and slick,” the crossing was highly dangerous and slick, neither of said facts in and of itself constituted negligence, though, if proved, they could be considered in determining if defendant was negligent in failing to provide plaintiff with a safe place to work, hence an instruction was erroneous which authorized the jury to infer that the maintaining of the crossing at an incline, or the operation of a leaky engine was sufficient to render defendant liable, p. 176.</p> <p>3. Appeai. — Review.—Instructions.—Failure to State Issues.— While the mere failure to state the issues in instructions to the jury is ordinarily regarded as harmless error, it is cause for reversal where the character of the complaint is such that a failure to do so might .operate to mislead the jury. p. 176.</p> <p>4. Master and Servant. — Injuries to Servant. — Assumption of Rislc. — Jury Question. — In an action for injuries to a railroad switchman, caused by falling upon a defective crossing maintained by defendant, where it appeared from the complaint that at the time of the accident plaintiff was engaged in work which necessarily required his close attention, and that he had no notice or knowledge of the unusual conditions then existing at the crossing, and there was evidence tending to support such allegations, the question of whether plaintiff had assumed the risk was properly left to the jury. p. 177.</p> <p>5. Appeal. — Heview.—Instructions.—Though some of the instructions given are open to objections urged, the error in the giving of same, and in the refusal of instructions requested, is harmless, where it appears that the instructions given, when considered as a whole, correctly stated the law and fully cover those refused, but is reversible error if not so cured, p. 177.</p>

From Porter Circuit Court; Henry A. Steis, Special Judge. Drainage proceedings on the petition of Susan Clough and others, and from a judgment establishing the drain the Lake Shore and Michigan Southern Railway Company and others appeal.

<p>From Howard Circuit Court; William G. Purdum, Judge.</p> <p>Prosecution by tbe State of Indiana against Benjamin Levi. From a judgment of conviction, the defendant appeals.</p>

<p>1. Rape. — Evidence.—Age of Prosecutrix. — The admission in evidence of the testimony of the prosecuting witness in a rape case, in relation to the fact that she was under the age of consent, after it was shown that her knowledge on that subject was based on information given her by her father, was not error, p. 199.</p> <p>2. Criminal Law. — Appeal.—Objections to Evidence. — Failure to Reserve Exception. — Defendant in a criminal prosecution, by failing to except to the ruling of the trial court admitting certain evidence, waives his right to a review of such action on appeal, p. 199.</p> <p>3. Criminal Law. — New Trial. — Newly-Discovered Evidence. — Diligence. — Where the motion for a new trial on the ground of newly-discovered evidence fails to set out facts showing that due diligence was exercised to procure such evidence, the motion is properly overruled, p. 199.</p>

<p>1. Embezzlement. — Indictment.—necessity of Demand. — In an indictment under §2285 Burns 1914, Acts 1905 p. 584, §392, for the embezzlement of a bank check, it is not necessary to aver a demand, p.202.</p> <p>2. Embezzlement. — Bank Chech.- — -Sufficiency of Indictment. — An indictment for the embezzlement of a bank check is not insufficient, though fairly subject to the inference that defendant held the check without ever putting it in circulation, presenting it for payment, or receiving anything of value for it, since the averment of a fraudulent conversion is sufficient, and any profit to defendant from the transaction need not be shown, p. 202.</p> <p>3. Embezzlement. — Indictment.—Conversion.—The essential element of conversion is not the acquisition of property by the tortfeasor, but a wrongful deprivation of it to the owner; hence, while a fraudulent conversion, either actual or constructive, must be averred in an indictment for the embezzlement of a bank check, it is not necessary to aver that the check was cashed or put in circulation by defendant, p. 202.</p> <p>4. Embezzlement. — Indictment. — Sufficiency. — An indictment charging an agent or employe with the embezzlement of a check from his employer, under §2285 Burns 1914, Acts 1905 p. 584, §392, need not aver the terms of the contract of employment, p. 203.</p> <p>5. Embezzlement. — Indictment. — Emheszlement from Employer. —necessary Averments. — An essential element of embezzlement as defined by §2285 Burns 1914, Acts 1905 p. 584, §392, is the employer’s right of possession of the thing embezzled, so that counts of an indictment for the embezzlement of a bank check by an employe were insufficient for failure to aver the employer’s right to the possession thereof, p. 203.</p>

<p>1. Criminal Law. — Trial.—Instructions.—An instruction in a prosecution for murder, stating that if all the allegations of the indictment had been proved beyond a reasonable doubt the jury “should” find the defendant guilty in the first degree, that if all the allegations except that of premeditation had been proved beyond a reasonable doubt it “should” find him guilty in the second degree, etc., was not erroneous and did not invade the constitutional right of the jury to determine the law, where the court, in preceding instructions, stated the material allegations of the indictment and defined the various degrees included in the charge, and in a following instruction formally and correctly told the jury of its constitutional right to determine both the law and the facts, p. 205.</p> <p>2. Criminal Law. — Misconduct of Prosecuting Attorney. — Review. —Although the prosecuting attorney was guilty of improper conduct in discussing in .his argument to the jury testimony that had been stricken out and withdrawn from the jury, the defendant must be deemed not to have been harmed thereby, where it appears that the court acted promptly in sustaining the motion of defendant’s counsel to admonish the prosecuting attorney and instruct the jury not to consider his statement in regard to such evidence, so that there was no error in overruling defendant’s subsequent motion to withdraw the submission and discharge the jury. p. 206.</p> <p>3. Homicide. — Self-Defense.—Evidence.—Although the testimony of defendant showed that he acted in self-defense, the court on appeal can not disturb the verdict finding him guilty of second degree murder, where the testimony of the only other eye-witness, if believed, was sufficient to warrant the jury in finding as it did, since it was the province of the jury to determine what testimony was the truth, p. 207.</p> <p>4. Appeal. — Briefs.—Waiver of Error. — Causes for new trial, to which appellant makes no specific reference in the propositions or points in his brief, are deemed waived, p. 207.</p>

Prom Crawford Circuit Court; William Ridley, Judge. Action by James Howerton against tbe Southern Railway Company and another. Prom a judgment for plaintiff the defendants appeal. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>Prom Lawrence Circuit Court; Oren O. Swails, Judge.</p> <p>Action by the City of Bloomington against the Chicago, Indianapolis and Louisville Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Fountain Circuit Court; I. E. Schoonover, Judge. Action in mandamus by tbe State of Indiana, on tbe relation of James A. Simpson and others, against Theodore M. Meeker and others, as County Councilmen of Fountain County. From a judgment for defendants, the relators appeal.

From White Circuit Court; James P. Wason, Judge. Action by the State of Indiana, on the relation of Jay W. Stockton, against Edward P. Lane, as trustee of Newton School Township in Jasper County and others. From a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565.)

Prom Superior Court of Tippecanoe County; Henry H. Vinton, Judge. Action by Estella Childress, as administratrix of the estate of William A. Childress, deceased, against the Lake Erie and Western Railroad Company and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1914, Acts 1901 p. 565.)

<p>Prom Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by William L. Smith against Hudson Township, Laporte County, and another. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Criminal Law. — Sufficiency of Evidence. — Appeal.—In reviewing the sufficiency of the evidence to sustain a conviction, the Supreme Court will consider only that which is most favorable to the State, p.267.</p> <p>2. Intoxicating Liquors. — Unlawful Sales. — Place of Sale. — Evidence. — In a prosecution for the unlawful sale of intoxicating liquors, evidence showing that defendant, the agent of a liquor dealer in another county, was approached by the prosecuting witness who sought to purchase a quart of whiskey, that defendant received the money, replying that he had no whiskey but would have it later in the day, that on the same day the whiskey was shipped by express from the liquor dealer in a box of goods consigned to another, although the bottle was marked with the purchaser’s name, that the box of goods was received by the consignee, and that the whiskey was delivered to the purchaser by defendant, was sufficient to warrant the jury in finding that the place of delivery was the place of sale, and to sustain a judgment of conviction, p.267.</p>

From Yigo Circuit Court; Charles M. Fortune, Judge. Proceeding on information for indirect contempt against Edward Holler. From a judgment adjudging him to he in contempt, the defendant appeals.

Prom Superior Court of Marion County (85,043); Joseph Collier, Judge. Action by Anna Leet, as administratrix of the estate of Charles P. Leet, deceased, against William H. Block and others. Prom the judgment rendered, the plaintiff appeals.

<p>Prom Vigo Circuit Court; Charles M. Fortune, Judge.</p> <p>Proceeding on information for indirect contempt against Harry S. Montgomery. Prom a judgment adjudging him to be in contempt, the defendant appeals.</p>

From Jay Circuit Court; James S. Engle, Judge. Drainage proceedings on the petition of Thomas Knox and others, in which James A. Strong and others remonstrated. From a judgment establishing the drain, the remonstrators appeal.

<p>Prom Superior Court of Marion County (88,657); Charles J. Orbison, Judge.</p> <p>Action by Hugh Burton Marshall against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company and others. Prom a judgment for plaintiff, the defendants appeal.</p>

<p>1. Descent and Distribution. — Statutes.—Repeal.—Validity.—The act of the legislature of 1867 (Acts 1867 p. 204, §246 Burns 1914), enacted in anticipation of the overruling of a prior holding of the Supreme Court that the act of 1853 (Acts 1853 p. 5b), purporting to amend §26 of the act of 1852 (1 R. S. 1852 p. 248, §3028 Burns 1914), was unconstitutional, providing that all laws theretofore passed, and not in conformity to such holding, were repealed, was a valid enactment and effectually repealed said act of 1853; hence, where a husband or wife dies intestate, leaving no child and no father or mother, the whole of his or her property goes to the survivor under the provisions of §26 of the act of 1852 (§3028 Burns 1914). p.291.</p> <p>2. Descent and Distribution. — Right to Walce. — Statutes.—Under §2995 Burns 1014, Acts 1907 p. 136, providing that no person who unlawfully causes the death, of another and shall have been convicted thereof, shall take by devise or descent any of the property owned by decedent, a paragraph of complaint seeking to deprive a husband of the property left by his deceased wife, on the theory that he had aided and abetted in causing her death, was insufficient without an allegation that the husband had been convicted, pp. 292,293.</p> <p>3. Descent and Distribution. — Right to Tahe. — Nature of Right. —The right to acquire property by descent is controlled by statutory enactments, and equitable rules can not be interposed to vary their effect, p. 293.</p> <p>4. Marriage. — Collateral Attach. — The validity of a marriage may not be collaterally attacked in a statutory action by heirs for partition of land of an alleged insane decedent, but the relief, if any can be had by them, must result from a direct attack in an appropriate equitable proceeding, pp. 294,296.</p> <p>5. Marriage. — Presumptions.—The presumption in favor of the validity of a marriage consummated according to the forms of law is one of the strongest known, p.295.</p> <p>6. Pleading. — Demurrer.—Statutory Provisions. — Scope of Review on Appeal. — While under §344 Burns 1914, Acts 1911 p. 415, the court on appeal would be limited to the defects pointed out in the memorandum in passing on error urged by appellee in the overruling of the demurrer to a complaint, it is not so limited in its consideration of appellant’s assignment of error in sustaining such a demurrer, but regardless of the memorandum, may determine whether the ruling was right on the merits, since the act of 1911 does not repeal or modify §700 Burns 1914, §658 B. S. 1881, prohibiting a reversal where it appears that the merits of the cause have been fairly determined, p. 296.</p>

Prom Superior Court of Mariou County (89,492); Charles J. Orbison, Judge. Action by the Vandalia Railroad Company against the Railroad Commission of Indiana. Prom a judgment for defendant, the plaintiff appealed, and pending the appeal the Public Service Commission was substituted as appellee.

Prom Newton Circuit Court; Charles W. Hanley, Judge. Action in mandamus by tbe State of Indiana, on the relation of Luther A. Brunton and others, against Lawson EL Reeher and others, as the Board of Commissioners of Newton County. Prom a judgment for relators, the defendants appeal.

<p>1. Easements. — Ways of Necessity. — Creation.—Presumptions.— Where a grantor conveys a portion of his land in such form as to deprive himself of access to the land retained by him, unless he crosses the land conveyed, he has a way of necessity over the portion conveyed, which is founded on the legal presumption, which prevails over the ordinary covenants of a warranty deed, that there was an understanding to that effect, p. 310.</p> <p>2. Easements. — Easements Running With Lands. — Private Railroad Crossings. — Under the act of 1885 (Acts 1885 p. 148), providing that owners of tracts of land separated by a railroad right of way may construct and maintain wagon and driveways over and across such right of way, and §5444 Burns 1914, Acts 1899 p. 485, which amended the act of 1885 by granting the right to construct such crossings to owners whose lands were cut off from a public highway by any such railroad right of way, the right to construct and maintain such crossings is an easement running with the lands, which, however, will be terminated by conveyances severing the ownership in such way as to render the right to such crossings no longer necessary, pp. 310, 311.</p> <p>3. Easements. — Destruction.—Evidence.—Where a right of way was granted to a railroad company upon the sole consideration of the benefits that would accrue to the grantor, and the company for many years maintained a crossing for his benefit, his subsequent conveyance of the same right of way to the railroad company’s successor for an expressed consideration of $27.50 can not be construed as showing an intention that the crossing should be destroyed, p.311.</p>

From Henry Circuit Court; Eugene Bundy, Special Judge. Drainage proceedings on the petition of Calvin R. Swain and others. From a judgment establishing the drain, John L. Starr and others appeal.

<p>1. Gbiminai. Law. — Appeal. — Review. — Conflicting Evidence. — Where the evidence is conflicting, and there is some evidence, either direct or inferential, to prove every essential element of the offense for which the conviction is had, the Supreme Court can not disturb the verdict on the ground of insufficient evidence, p. 320.</p> <p>2. Rape. — Assault and Battery with Intent. — Evidence.—In a prosecution for assault and battery on a five-year-old girl with intent to rape, evidence which merely showed a touching of the child, but which was of such character as not to show that the touching was unlawful, or that it was with felonious intent, except by deduction from the facts proved, was not sufficient to sustain a judgment of conviction, p. 320.</p> <p>3. Criminal Law. — Evidence. — Circumstantial Evidence. — Sufficiency. — Circumstantial evidence as a basis for conviction of crime ought to be acted on with much caution, and, while such rule of caution does not mean that such evidence is incapable of producing as high a degree of proof as direct evidence, such evidence should, to sustain a conviction, be of a conclusive tendency and exclude every reasonable hypothesis of innocence, p. 321.</p>

From Starke Circuit Court; Francis J. Vurpillat, Judge. Action by Carl M. Barkley and others against Daniel Barkley, Jr., and others. From a judgment for plaintiffs, the defendant named appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>Prom Blackford Circuit Court; William H. Eichhorn, Judge.</p> <p>Prosecution by the State of Indiana against Bessie Robinson. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Appeal. — Review.—Findings.—Province' of Trial Gourtj — The trial court alone has power to weigh the evidence and determine the facts, and to reconcile or disregard conflicting statements of any witness, and it is only where there is an entire absence of evidence to support the finding that the court on appeal may disturb it on the evidence, p. 341.</p> <p>2. Appeal. — Presentation of Questions for Review. — Necessity.— No question is presented on appeal as to the competency of a witness to testify, where the question was not presented to the lower court, p. 341.</p> <p>3. Bills and Notes. — Relation of Parties. — Evidence.—Sufficiency. —In an action on a promissory note executed in the name of a corporation and bearing the endorsements of a number of persons, the testimony of a witness to the effect that one of the defendants whose name was endorsed thereon, and who was held as a principal instead of endorser, in consideration of the purchase of preferred stock of the corporation, which was then being organized, and which stock was delivered to him, agreed to pay the debt evidenced by the note in suit, was sufficient, if believed, to authorize the trial court to find against such defendant on the theory that he was a principal, p. 342.</p>

<p>Prom Putnam Circuit Court; John M. Bawley, Special Judge.</p> <p>Prosecution by tbe State of Indiana against Daniel C. Brackney. Prom a judgment of conviction, tbe defendant appeals.</p>

<p>1. Criminal Law. — Appeal. — Questions Reviewable. — Motion to Quash. — No question is presented on appeal on the overruling of an oral motion to quash, where the grounds of the motion are not stated in the record, p. 348.</p> <p>2. Criminal Law. — Verdict.—Sufficiency.—Where the indictment in a prosecution for producing an abortion contained three counts, each charging the commission of the crime by a different method, a verdict finding defendant “guilty as charged” was sufficiently specific, p. 348.</p> <p>3. Criminal Law. — Appeal.—Harmless Error. — Challenge of Jurors. — Defendant in a criminal prosecution was not harmed by alleged error in respect to challenging the jury on voir dire, where it appears that those jurors peremptorily challenged did not serve, and that when the jury was sworn defendant had the right of peremptory challenge of one juror remaining to his credit, p. 349.</p> <p>4. Criminal Law. — Trial.—Qualification of Jurors. — A juror is not incompetent by reason of the fact that he has formed, an opinion from newspaper reports, which it would require evidence to remove, where he states that he can give the defendant a fair trial under the evidence as it may be. p. 349.</p> <p>5. Criminal Law. — Appeal.—Review.—Newly-Discovered Evidence. —Where the matters alleged as newly-discovered evidence in support of a motion for new trial, had been testified to by a witness in the case, who contradicted by affidavit the material allegations of the affidavit of the absent witness, an issue of fact was presented to the trial court, which will not be reviewed on appeal, p. 349.</p> <p>6. Criminal Law. — New Trial. — Newly-Discovered Evidence. — Review. — Where the newly-discovered evidence upon which a new trial is asked was cumulative in part, and the rest was such as can hardly support an inference on the question of defendant’s guilt, the overruling of the motion can not be deemed reversible error, p. 350.</p> <p>7. Abortion. — Admissibility of Evidence. — Amount of Charges.— In a prosecution against a physician for producing an abortion, evidence as to the amount charged by defendant, together with evidence as to the value of services which he claimed to have rendered the woman, was admissible as a circumstance tending to show that the charge actually made was for a more serious service than .the one claimed to have been rendered, p. 350.</p> <p>8. Appeal. —■ Questions Reviewable. — Instructions. — Briefs. — No question is presented on objections to an instruction, where neither the instruction nor its substance is set out in appellant’s brief, nor its place in the record given, pp. 351, 353.</p> <p>9. Abortion. — Proof.—Circumstantial Evidence. — Absence of Necessity. — In a prosecution for producing an abortion, the absence of necessity to save life may be proved by circumstantial evidence. p. 351.</p> <p>10. Criminal Law.' — Appeal.—Instructions.—References to Other Instructions. — An instruction in a prosecution for producing an abortion relating to the question of the kind of instrument used, was not erroneous in omitting the element of intent, since such instruction is not to be disconnected from other instructions given fully covering the question of the motive and intent necessary to be shown to convict, p. 851.</p> <p>11. Criminal Law. — Circumstantial Evidence. — Sufficiency.—While circumstantial evidence, to sustain a conviction, must exclude every reasonable hypothesis except that of guilt, the question of whether it points conclusively to the guilt of the accused is for the jury. p. 352. 12. Appeal. — Review.—Record.—Briefs.—Objections to the form of an instruction pointed out in appellant’s brief is without force where the defect does not appear in the instruction as set forth in the record, p. 352.</p> <p>13. Criminal Law. — Appeal.—Review.—Instructions.—An instruction upon the specific question of aiding or abetting in procuring an abortion was not erroneous in omitting the element of reasonable doubt, where the jury was fully informed by other instructions on the question of reasonable doubt with respect to aiding or abetting in the commission of the alleged crime; nor was the instruction bad for failure to name a principal who may have been aided or abetted, there being no question as to whether the accused was or was not a principal, p. 352.</p> <p>14. Abortion.- — Indictment.—Proof.—Under an indictment charging the production of an abortion by using an instrument, by using drugs, and by prescribing drugs, defendant would be guilty as a principal on proof of his guilt in doing either of the things charged, p. 352.</p> <p>15. Criminal Law. — Instructions.—Venue.-—An instruction that if defendant in a prosecution did the things charged in the indictment, he would be guilty, is not erroneous for failure to lay the venue, p. 353.</p> <p>16. Appeal. — Revieiv.—Refusal of Instructions. — There is no error in the refusal of instructions that are fully covered by others given, p. 353.</p> <p>17. Criminal Law. — Appeal.—Review.—Refusal of Instructions.— The refusal of an instruction which would have had the effect of singling out and cautioning the jury against the testimony of a certain witness, was proper, but, even if erroneous, the error would be deemed harmless in view of other instructions on the credibility of witnesses, and especially in the absence of any showing by appellant as to how he could have been harmed thereby, p. 353.</p> <p>18. Criminal Law. — Appeal. — Revieiv. — Verdict. — Although the Supreme Court, if trier of the facts, might have had some doubts as to the guilt of appellant, the verdict can not be disturbed where there was evidence to support it. p. 354.</p>

From Wells Circuit Court; Charles E. Sturgis, Judge. Action by Lenora Horn against Ambrose G. Lupton and others. Prom a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Elkhart Circuit Court; James Story Drake, Judge. Action by Robert Seaman, by his next friend, Joseph B. Seaman, against the Chicago, South Bend and Northern Indiana Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Wills. — Validity.—Competency of Witnesses. — Husband of Beneficiary. — Under §3144 Burns 1914, §2586 R. S. 1881, providing that a witness beneficially interested may be compelled to testify when necessary, the husband of a beneficiary may be a competent witness to the execution of a will, and hence a will providing for a number of beneficiaries, and attested by only two witnesses, is not invalid because one of such witnesses is the husband of one of the beneficiaries. (.Belledin v. Qoailey [1901], 157 Ind. 49, distinguished.) p.373.</p>

<p>1. Wills. — Execution.—Attestation.—One who makes a will need not sign it in the presence of witnesses if he acknowledges his signature in their presence, nor is it necessary that he should inform them that the instrument they are attesting is his will; hence an instruction, in an action to resist the probate of a will, stating that the burden rests on proponents to shoW that the will was signed by testator in the presence of two witnesses and declared to be testator’s last will and testament, was erroneous as an abstract proposition of law. p. 376.</p> <p>2. Appeal. — -Objections to Instructions. — Evidence Not in Record.— Where the evidence is not in the record the judgment of the trial court will not be reversed for error pointed out in instructions given, unless they are so radically erroneous as to be incorrect in view of any facts that might have been proven under the issues, p. 376.</p> <p>3. Wills. — Resistance of Probate. — Review. — Presumptions.— Harmless Error. — Instructions.—In an action to resist the probate of a will, an instruction placing on proponents the burden of showing that testatrix signed the. will in the presence of two witnesses and declared the same to be her last will, though erroneous, was harmless in view of the evidence showing that she did so sign it and declare it to be her will; and, while the record does not contain the evidence, it will be presumed in favor of the trial court that such showing was made. p. 376.</p> <p>4. Wills — Resistance of Probate. — Execution of Will. — Burden of Proof. — The burden of proving the due execution of a will, and the testamentary capacity of the testator, rests on the proponents of the instrument, p. 377.</p> <p>5. Appeal. — Review.—Objections to Instructions. — Objections made to instructions are unavailing, where it appears that such instructions were incorrectly copied into the original record, and that on correction by writ of certiorari the objectionable features were removed, p. 377.</p>

<p>From Superior Court of Marion County (80,171); Vinson Carter, Judge.</p> <p>Action by the Vandalia Railroad Company against The Railroad Commission of Indiana. From a judgment for defendant, the plaintiff appeals.</p>

<p>Prom Jay Circuit Court; James J. Moran, Judge.</p> <p>Prosecution by tbe State of Indiana against Samuel Renner. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Carriers. — Carriage of Live Stock. — Action for Damages.— Complaint. — In an action against a railroad, company for damages for the loss of a horse killed in transit, a complaint alleging that plaintiff “paid and became indebted, and obliged to pay the charges for transportation”, etc., sufficiently states the facts showing a consideration for the contract of shipment, p. 402.</p> <p>2. Carriers. — Carriage of Goods. — Limitation of Liability. — A carrier may contract with a shipper for the limitation of its liability in consideration of a reduced rate of transportation, provided the rate is reasonable and the shipper has been given a full, fair and bona fide opportunity to ship under a higher rate without limitation of the carrier’s liability, p. 404.</p> <p>3. Principal and Agent. — Contracts.—Shipment of Live Stock.— limitation of Liability. — Pleading.—While the owner of a horse killed in transit is bound by the contract of shipment entered into by his agent limiting the liability of the carrier, such contract is binding on him only in the absence of fraud, collusion, deceit or overreaching in its execution; hence, where the carrier answered setting up a special contract of carriage entered into with plaintiff’s agent, the question of the execution of the contract was a proper subject of inquiry, and it was not error to overrule a demurrer to plaintiff’s reply of non est factum, pp. 406, 408.</p> <p>4. Cabriers. — Carriage of Live Stock. — Limitation of Liability.— Trial. — Instructions.—In an action for damages for the loss of "a horse killed in transit, defended on the ground that plaintiff’s agent in shipping the horse entered into a contract limiting the carrier’s liability in consideration of a lower rate of transportation, an instruction that plaintiff could not recover if the jury found that the shipment “was made under the terms of a written contract fairly entered into, based on a reduction in the freight rates for transportation”, was erroneous in view of plaintiff’s reply of non est factum, since it could not be justified excepting upon the theory that plaintiff either executed it himself, or knew of, or specifically authorized its execution, pp. 408, 409.</p> <p>5. Carriers. — Carriage of Live Stock. — Limitation of Liability.— Trial. — Instructions.—In an action for damages for the loss of a horse killed in transit, the refusal of an instruction requested by defendant, to the effect that if the shipment was made by plaintiff’s agent under a limited liability contract, the contract would, be binding on plaintiff, was, in view of the evidence, erroneous, p. 409.</p> <p>6. Cabeiers. — Carriage of Goods. — Limitation of TAability. — While the rigor of the liability of the common law may be modified by agreement, except for negligence, shipment must be made without such agreement, and according to schedule, if the shipper so demands, p. 412.</p> <p>7. Carriers. — Carriage of Goods. — Limitation of Liability. — Statutory Provisions. — Constitutional Law. — The act of February 27, 1905 (Acts 1905 p. 58, §§3918-3920 Burns 1914), providing that in actions against a carrier, the shipper need only aver the delivery of the goods to the carrier, and its failure to transport or deliver, with the resulting damage, and placing the burden on the carrier to show that its liability was limited, that the contract was upon a sufficient consideration, that it was reasonable and that it was entered into after opportunity to ship without limitation of liability, does not conflict with §10. Art. 1, of the Federal Constitution, or with the 14th amendment thereof, and is not violative of §23, Art. 4, of the State Constitution, p. 418.</p> <p>8. Constitutional Law. — General and Special Laxos. — Limitation of Liability by Carriers. — Section 22 of Art. 4, of the State Constitution prohibiting the passage of local or special laws regulating the practice in courts of justice, does not prohibit a classification that is natural, reasonable and fair, and is not violated by the act of February 27, 1905 (Acts 1905 p. 58, §§3918-3920 Burns 1914), relating to the pleading and burden of proof in ictions by shippers against carriers of goods, since that act, though applying only to actions against carriers, is not based upon an arbitrary, but upon a natural, fair and reasonable classification, p. 419.</p> <p>9. Cabbiebs. — Limitation of Liability. — Statutes.—Implied Repeal. —In view of the legislative purpose in the enactment of the State railroad commission law of February 28, 1905, to enlarge the rights of the shipper, rather than to restrict them, and the proviso in clause h, §11 of the act (§5541 Burns 1914) “that nothing herein contained shall be construed as to abridge, or in any wise lessen the liability of any such carrier as it now is under existing laws”, that act did not repeal the act of February 27, 1905 (Acts 1905 p. 58, §§3918-3920 Burns 1914), placing upon carriers the burden of pleading and proving contracts of shipment in limitation of liability, even though provisions of the two acts may appear conflicting, since the provisions of the act of February 27 are specific and, in case of conflict, must prevail over the general provisions of the railroad commission act. pp. 422,424,425, 428,431.</p> <p>10. Statutes. — Repeal by Implication. — Repeals by implication are disfavored and are never recognized in tbe absence of irreconcilable repugnancy, and tbe courts will resort to every recognized rule of construction to avoid repugnancy or conflict between two acts that would work an implied repeal of the prior one. p. 422.</p> <p>11. Statutes. — Repeal by Implication. — Presumptions.—The presumption against the implied repeal of an act by one of a later date, enacted at the same session, is especially strong; and acts that take effect on the same day, unless clearly irreconcilable, will be construed as being in pari materia, p. 423.</p> <p>12. Statutes. — Repeal by Implication. — General things do not derogate from things special, and an act in general terms, and not expressly contradicting the provisions of an earlier one enacted at the same session, will not be considered as affecting the more particular and specific provisions of the earlier act, unless it is absolutely necessary to hold otherwise in order to give any meaning at all to the words of the later one. p. 423.</p> <p>13. Statutes. — Repeal by Implication. — Where a particular intention is expressed in an act, which conflicts with a general intention expressed in a later one, the particular intention shall be given effect, leaving the later act to operate only outside the scope of the former, p. 424.</p> <p>14. Statutes. — Construction.—General Rulés. — Extrinsic Aids.— The object of all rules of statutory construction is the ascertain- ' ment of the legislative intent, and in searching for such object it is proper to consider the common law and other statutes relative to the same subject-matter, together with contemporaneous legislative history, and the evils at which the legislation was aimed, p. 424.</p> <p>15. Carriers. — Carriage of Goods. — Rates. — Regulations.—Right to Contest Validity. — The right of a carrier to contest the validity of a state regulation of interstate rates, is not impaired by its action in putting them into effect, p. 425.</p> <p>16. Courts. — Rules of Decision. — Decisions of United States Courts. — The decisions of the United States Supreme Court in matters relating to the interpretation of the Interstate Commerce Act are binding on the state courts, but where intrastate commerce only is involved the state courts are not bound to follow the United States Supreme Court, though its decisions under similar statutes are entitled to careful consideration, p. 428.</p> <p>17. Carriers. — Carriage of Goods. — Reasonableness of Rates. — It does not necessarily follow that because the legislature has fixed a penalty for charging any other than the published rate, that the latter must be held conclusively just and reasonable, p. 431.</p>

From Dekalb Circuit Court; Frank M. Powers, Judge. Action by the State of Indiana, on the relation of William Bryant, against Daniel McClellan and others, as the advisory board of Troy Township in Dekalb County. From a judgment for relator, the defendants appeal.

Prom Wabash. Circuit Court; A. H. Plummer, Judge. Proceeding for the establishment of a drain on the petition of Milton S. Brane and others, and from an adverse judgment the petitioners appeal.

Prom Lake Superior Court; Virgil 8. Reiter, Judge. Petition by The Northern Indiana Land Company for leave to intervene in a proceeding on the petition of John Brown and others for the construction of a levee. Prom a judgment denying the right to intervene, the petitioner appeals.

<p>1. Pleading. — Theory.—A pleading, to be sufficient, must proceed on a single definite theory and be good upon that theory, p. 450.</p> <p>2. Pleading. — Cross-Complaint.—Theory.—Sufficiency.—In an action to recover for materials furnished in the erection of a concrete factory building, a cross-complaint alleging that as a prerequisite to furnishing the material the cross-complainants required plaintiff to furnish plans and specifications to the approval of the architect, and that the building was constructed in accordance therewith, that the materials furnished were represented to comply with the specifications and to be in all respects suitable, durable and substantial, and that such materials were weak and unsuitable and after being installed in said building, in accordance with the plans and specifications, broke down and gave way, etc., while evidently based on a breach of warranty, was uncertain as to whether the breach had reference to the plans and specifications, or to the materials furnished, and was in either event insufficient, since it showed that by the approval of the architect the plans and specifications became his plans and specifications, and it failed to allege that the materials did not comply with such plans and specifications, p. 450.</p> <p>3. Statutes. — Validity.—Title.—The provisions of §8 of the mechanic’s lien law of 1909 (§8302 Burns 1914, Acts 1909 p. 297), for notice to the owner of the property affected, and that such owner’s responsibility shall not exceed the balance due the contractor, are germane to the subject-matter covered by the title of the act, and hence the act is not invalid as in conflict with §19, Art. 4, of the Constitution, p. 451.</p> <p>4. Appeal. — Review.—Directing Verdict. — In an action on notes given for the purchase price of building material furnished to the contractor, and to enforce the liability provided by §8302 Burns 1914, Acts 1909 p. 297, §8, the plaintiff could not complain of the action of the trial court in allowing a recovery of $200 attorney's fees, where the only testimony on that subject placed the value of such fees at $200 or $225; nor was the action of the court in directing a verdict for plaintiff for such amount, and for the amount agreed upon as due for principal and interest,' erroneous, even though the actual amount due from the owner to the contractor was in dispute, where the evidence showed that it was more than enough to meet plaintiff’s claim, p. 452.</p>

<p>1. Husband and Wife. — Wife’s Interest in Realty of Deceased Husband— OMldless Second Wife. — Executor’s Petition to Sell to Pay Debts. — Conclusiveness of Order. — Where a decedent, who died in 1875, and whose personalty was insufficient to pay debts, left surviving him a childless second wife and children by his first wife, and the court, upon the petition of the executor to sell the realty to pay debts, in which the widow and children were made parties, and in which it was alleged that the widow owned but a life estate in one-third of said real estate, ordered a sale of the entire tract of land subject to a life estate in favor of the widow in one-third thereof, such order, never having been appealed from or contested, conclusively protected the title of the purchaser who claimed the fee to the entire tract, although, under a correct interpretation of the statute as it existed at the time, the widow was entitled to one-third in fee simple free from the claims of her husband’s creditors, and which, upon her death, would have been inherited by the children of his former marriage. (Armstrong v. Cavitt [1881], 78 Ind. 476, as to the question of jurisdiction, overruled.) pp. 456,461,463,464,465, 467,476.</p> <p>2. Executors and Administrators. — Character of Office of Executor. —The executor of a will represents the estate and the creditors in a capacity in the nature of the trustee of an express trust, p. 460.</p> <p>3. Executors and Administrators. — Debts of Estate. — Lands of Decedent. — Where the personalty of a decedent is insufficient to pay the debts, such debts become a lien upon his lands, subject to the statutory rights of the widow, p. 461.</p> <p>4. Descent and Distribution. — Inheritance.—Right of Inheritance. — The right of inheritance is not a natural right and does not inhere in any one, but is a creature of the law and subject to the limitations to be found in the law. p. 462.</p> <p>5. Husband and Wife. — Conveyance by Wife of Lands Inherited from Hiisband. — Validity.—Under §18 of the law of descents (1 G. & H. 284, §18; 1 R. S. 1852 p. 250) a deed purporting to convey lands derived by a widow in virtue of her previous marriage, executed during her subsequent marriage, was void, p. 463.</p> <p>6. Judgment. — Default. — .Admissions. — By defaulting, a party admits the truth of the facts alleged against him. p. 465.</p> <p>7. Courts. — Erroneous Decisions. — Collateral Attach. — The power to decide includes the power to decide wrong, and an erroneous decision, at least upon a colorable question, resists collateral attack the same as one that is correct, p. 467.</p> <p>8. Courts. — Jurisdiction. — Power to Determme. — A court has power to determine the question of its jurisdiction and to conclude the parties to the record by its decision, p. 476.</p>

<p>1. Parent and Child. — Prosecution for Nonsupport. — Venue.— Where, following a decree of divorce in which the custody of the children is given to the mother without restraint or limitation as to where she shall reside with them, the mother removes with the children to another county, a prosecution against the father for failure to provide for the children, as provided by §2G35a Burns 1914, Acts 1918 p. 956, should be instituted in the county where the mother and children reside, and is not influenced by the fact that the father’s failure also involves a violation of the order of the court in which the divorce was granted, p. 480.</p> <p>2. Parent and Child.' — Duty to Support. — It is the father’s duty to support his infant children and he is not relieved therefrom by the fact that he has been deprived of their custody, p. 480.</p> <p>3. Criminal Law. — Venue.—Acts of Omission. — A crime which involves an act of omission is committed where the act should have been done and is punishable there, p. 481.</p>

From Superior Court of Marion County (80,125); James M. Leathers, Judg-.5 Action by Iienry L. Oesterling against The Cleveland, Cincinnati, Chicago and St. Louis Eailway Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Eminent Domain. — Condemnation for Railroad Purposes. — Assessment of Damages. — Reio Trial. — Grounds.—That the damages assessed are excessive is not ground for a new trial in a proceeding by a railroad company for the condemnation of ground for its use. p. 492.</p> <p>2. Appeal. — Review.—Verdict.—Conclusiveness.—The jury is the judge of the facts, and its finding will not be disturbed on appeal on the mere weight of the evidence, p. 492.</p> <p>3. Eminent Domain. — Condemnation for Railroad Purposes. — Admission of Evidence. — Appeal.—In a proceeding for the appropriation of city lots for railroad purposes, where the cause was tried on the theory that the value of the lots taken was the measure of damages, the company can not complain on appeal that the admission of evidence as to their value was error, and that the true measure of damages is the difference between the value of the lots before the appropriation and afterwards, nor can it complain of the manner of proving the damage to other lots nearby, where no objection as to the manner of proof was made at the time the evidence was offered, p. 492.</p> <p>4. Eminent Domain. — Condemnation of City Lots — Jury Question. — In a proceeding for the condemnation of city lots, where the defendant owns other contiguous lots, the question of whether all the lots constitute but one tract of land is a question of fact for the jury, upon which it is entitled to hear and consider the evidence to enable it to properly fix the damages, p. 495.</p> <p>5. Appeal. — Review.—Instructions.—Where the instructions given by the court on its own motion correctly stated the law and fully covered the requested instructions there was no error in the refusal of the latter, p.495.</p> <p>6. Eminent Domain. — Condemnation of City Lots. — Assessment of Damages. — Instructions.—In a proceeding for the condemnation of certain city lots, where defendant claimed that such lots together with other contiguous lots owned by him constituted but a single tract, the court properly refused plaintiff’s requested instructions which asked the court to rule as a matter of law that several contiguous lots constitute separate tracts, and its instruction submitting the matter as a question of fact, as to which defendant had the burden of proof, was correct, p. 495.</p>

<p>Prom Hamilton Circuit Court; Meade Testal, Judge.</p> <p>Action by the State of Indiana on the relation of Henry Rothschild, against the Town of Sheridan and others. Prom a judgment for relator, the defendants appeal.</p>

Prom Superior Court of Alien County; Carl Tapie, Judge. Proceeding by George Swisher against Arthur C. Past and others to have a drainage proceeding redocketed for the purpose of determining and taxing fees claimed for services rendered. Prom a judgment for plaintiff, the defendants appeal.

<p>1. Eminent Domain. — Proceedings.—Judgment.—Considering together the provisions of §929 et seq. Burns 1914, Acts 1905 p. 59, relating to taking of property by eminent domain, it is contemplated that when the amount of damages to be paid is the only thing involved, a judgment therefor may be properly had at whatever point in the proceeding the question has reached a finality; hence, where plaintiff was in the possession of land before it commenced the condemnation proceeding, a judgment rendered upon the award of the appraisers for the amount thereof, and vesting the lands in the plaintiff upon its payment, was not erroneous, p. 507.</p> <p>2. Eminent Domain. — Proceedings.—Judgment.—In an eminent domain proceeding it is the general rule, in the absence of statutory regulation on the subject, that where possession has already been taken of the property a personal judgment for the damages is proper, but improper where there has been no entry and the effect of the proceedings is to fix the price at which the petitioner may take the property if it elects to do so. p. 509.</p> <p>3. Eminent Domain. — Proceedings.—Appeal.—Stipulations.— Construction. — In eminent domain proceedings to assess damages for land upon which the petitioner had entered, an agreement to “waive exceptions and right of. appeal”, precluded an appeal from a judgment on the award, since such a judgment is authorized under the statute, p. 509.</p> <p>4. Appeal. — Waiver by Agreement. — Dismissal. — A stipulation waiving the right of appeal is valid and binding, and where an appeal is taken in violation of such an agreement, objection may be properly taken by a motion to dismiss, p. 510.</p>

<p>From Delaware Circuit Court; William A. Thompson, Judge Pro Tern.</p> <p>Prosecution by tbe State of Indiana against Charles Benadum. From a judgment of conviction, the defendant appeals.</p>

<p>Prom Delaware Circuit Court; William A. Thompson, Judge Pro Tern.</p> <p>Prosecution by the State of Indiana against Luther Platter. Prom a judgment of conviction, the defendant appeals.</p>

Prom Delaware Circuit*Court; Frank Ellis, Judge. Action by Henry E. Spickerman and others against Joseph A. Goddard and others, contesting a local option election. Prom a judgment declaring the election legal and declaring a majority in favor of prohibition, the contestants appeal.

Prom Wells Circuit Court; William JL. Eichhorn, Judge. Action by-Clifford Jackman, executor of the last will of Elizabeth J. Best, deceased, against Harta Hoke and others to procure a construction of the will. Prom a judgment construing the will, Harta Hoke and others appeal.

<p>Prom Shelby Circuit Court; Hugh Wickens, Special Judge.</p> <p>Action by Elizabeth A. Thompson against Mary Miller and others. Prom a judgment for defendants, the plaintiff appeals.</p>

From Lake Superior Court; Virgil 8. Reiter, Judge. Action by Nathan Migatz, as executor of the last will of William Stieglitz, deceased, against Mildred B. Stieglitz and others. From the judgment rendered, Mildred B. Stieglitz appeals.

Prom Lake Superior Court; Lawrence Becker, Judge. Condemnation proceedings by the Gary Connecting Railways Company against Edward Gwinner. Prom a judgment denying defendant’s application to set aside a default judgment rendered against him, the defendant appeals.

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—Sufficiency. — A complaint in a servant’s action for personal injuries, proceeding on the theory that defendant asked and directed plaintiff to leave his work of meter repairer and assist in the demolition of a smokestack, and that in so doing it was defendant’s duty to furnish a safe place to work, and that its failure to do so was negligence, was sufficient, p. 558.</p> <p>2. Master and Servant. — Injuries to Servant. — Settlement for Injuries. — Validity.—Fraud.—A contract in settlement of a claim for personal injuries procured by fraud is voidable, but not void; and in such case the injured party must return the consideration received before he can maintain an action for the damages resulting from his injuries, p. 559.</p> <p>3. Master and Servant. — Injuries to Servant. — Action.—Defense of Settlement. — Reply.—Sufficiency.—Where a defendant in a servant’s action for personal injuries answered that it had settled with plaintiff, and that in consideration of the payment to him of $103.25, and certain other payments made to other persons at plaintiff’s request, etc., plaintiff had released his claim, a reply alleging that the release was procured by reason of plaintiff’s inability to comprehend the instrument he was signing, that the defendant represented that he was signing a voucher for wages, “and that all the money he received at that time was $50, and that there was $50 due him as wages at that time,” was insuffleient for failure to aver a rescission of the contract and a return of what was paid, or to set up facts to avoid all the matters alleged in the answer, p. 560.</p>

<p>1. iNTOXicATmG Liquobs. — Sale.—Acts Constituting.- — Distribution by Lodge or CMb. — The act of a social fraternal order in purchasing liquor and disposing of the same to members only, by selling coupons to them good in exchange for definite quantities of liquor delivered over to coupon holding members in quantities according to a fixed schedule, amounts to a sale, and will warrant the conviction of an employe of the order who actually delivers the liquor to coupon holding members, under §8351 Burns 1914, Acts 1907 p. 689, providing that any person who shall keep, run or operate a place where intoxicating liquors are sold in violatior of law, or shall be found in possession of such liquors for such purpose; shall be deemed guilty of a misdemeanor.</p>

From Hendricks Circuit Court; James L. Clark, Judge. Action by Fred M. Bechtell against The Central Station Engineering Company and others. Prom a judgment against him in favor of Shelby, Shelby and Norwood, plaintiff appeals; and from a judgment against The Central Station Engineering Company and others, they appeal.

From Allen Cirenit Conrt; Sol A. Wood, Special Judge. Action by George H. Cressler for tbe appointment of a receiver for the Kerr Murray Manufacturing Company. Prom orders entered after a decree for sale of the assets by the Tri-State Loan and Trust Company as receiver, the plaintiff appeals.

<p>Prom Labe Circuit Court; Willis C. McMahan, Judge.</p> <p>Action by the State of Indiana, on the relation of the School City of Gary, against Albert G. Swanson, Treasurer of Labe County. From, a judgment for defendant, the relator appeals.</p>

<p>Prom Huntington Circuit Court; B. H. Hurd, Special Judge.</p> <p>Prosecution by the State of Indiana against Mitchell C. Clokey. Prom a judgment of conviction, the defendant appeals.</p>

<p>1. Negligence. — Erection of Buildings. — Liability for Injuries.— When an owner has exercised due care to employ an architect to prepare plans and specifications, and builds accordingly, he should not be held liable for any defects unless they were such that he should have known of them. p. 596.</p> <p>2. Master and Servant. — Relation of Parties. — Liability for negligence of Independent Contractor. — Where an agreement provides for a result to be accomplished, but leaves to the person employed the choice of means and methods by which it is to be accomplished, the relation existing is that of employer and contractor, and not that of master and servant, and the employer is not liable for the contractor’s negligence, p.596.</p> <p>3. Master and Servant. — Independent Contractor. — An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work, and his status as such is not affected by the mere fact that the work is to be done under the direction and to the satisfaction of some one representing the employer, p. 597.</p> <p>4. Master and Servant. — Relation of Parties. — Liability for negligence of Independent Contractor. — The difference between an independent contractor and a mere servant is to be determined from the contract as a whole, and not by the phraseology of a single sentence or paragraph, hence under a building contract providing that the owner, through an inspector representing him, should have authority to examine the materials furnished, to condemn that not conforming to a prescribed standard, and to arrest the progress of work found not conforming to such standard, but giving him no control as to the means and methods of attaining those standards, the contractor was an independent contractor for whose negligence the owner was not liable, p. 597.</p> <p>5. Negligence. — Action.—Burden of Proof. — In an action for personal injuries sustained in the collapse of a building, based on alleged negligence, where the real cause of the collapse is not apparent, the plaintiff has the burden of proving enough to exclude the case from what are deemed purely “accidental occurrences”, for which there is no liability, p. 599.</p> <p>O. Negligence. — Burden of Proof. — Res Ipsa Loquitur. — While proof of negligence to make a prima facie case under the doctrine of res ipsa loquitur may be supplied by presumption arising from the occurrence of the injury, it must be made to appear that the instrumentality which inflicted the injury was in the control of the defendant, subject to his use and inspection, and that the accident was one which in the ordinary experience of mankind would not have happened except for the negligence of defendant or of some one for whose negligence he is legally liable, p. 599.</p> <p>7. Municipal Corporations. — Ordinances.—Operation and Effect. —A city ordinance authorized and duly enacted within the municipal power has the same local force and effect as a statute, p. COO.</p> <p>8. Negligence. — negligence Per Be. — Omission of Legal Duty.— Liability. — Where a standard of duty is fixed, and its measure defined by law, the omission of that duty is negligence per se, which, if proximately causing an injury, renders the person upon whom the duty rested liable, irrespective of all questions of care and prudence; and it is no defense that the actual breach of law was committed by a person enxployed by and acting for the one charged with such duty, if the latter knew of or sanctioned the illegal act, even though he did not direct it. p. 600.</p> <p>9. Negligence. — Liability for Injuries. — Proximate Cause. — Though the violation of penal statutes constitutes negligence per se, such negligence to be actionable must be the proximate cause of the injury for which the action is brought, p. 601.</p> <p>10. Negligence. — Liability for Injuries. — Proximate Cause.— Where it appeared that at the time of obtaining a permit for the erection of a two-story building the plans and specifications submitted to the inspector provided that the building should be constructed so that a third story could be added at some future time, the failure of the owner thereafter to obtain a permit for the adding of a third story, as required by ordinance, can not be deemed the proximate cause of injury resulting from the collapse of the building, p. 601.</p> <p>11. Master and Servant. — Injuries to Employe of Independent Contractor. — Liability.—An action for injuries to an employe of an independent contractor by the collapse of a building which he was engaged in constructing is not within the provisions of the Dangerous Employment Act of 1911 (Acts 1911 p. 597, §§3862a-3862e Burns 1914), so as to render the owner liable. p. 602.</p>

Prom White Circuit Court; James P. Wason, Judge. Proceedings on the petition of Christian Blumhardt and others for the improvement of a highway. Prom a judgment of the circuit court against him on his appeal from the order of the board of county commissioners directing the issuance of bonds, William Pisher appeals.

Prom Adams Circuit Court; James T. Merryman, Judge. Action by tbe State of Indiana, on tbe relation of the Board of Commissioners of the County of Allen, against Arthur C. Past and others. Prom a judgment for relator, the defendants appeal.

<p>1. Master and Servant. — Injuries to Servant. — Complaint.—Negligence. — A complaint by a common laborer against his employer for injuries sustained while assisting in the operation of a hoisting machine, alleging that plaintiff had been called upon on several occasions to render such assistance by holding the boom rope taut or paying it over the winch head, that at such times the rope used was soft and pliable, that at the time of the injury the rope in use was new and stiff and should have had more wraps around the winch head than was necessary in the use of the old rope, but that plaintiff did not Know that a greater number of wraps of the new rope was essential, that defendant did not inform him of such fact, and that by reason of the insufficient wraps about the winch head plaintiff could not hold the boom and was injured, states facts showing that defendant was negligent, p. 611.</p> <p>2. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Complaint.—A complaint by a servant against his master for personal injuries need not negative contributory negligence, and will not be deemed insufficient on the ground that contributory negligence is shown by its specific averments unless they show contributory negligence as a matter of law. p. 614.</p> <p>3. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Complaint.—In a complaint for injuries sustained in operating a hoisting machine, where it appeared that the injury resulted from his inability to hold a boom rope which he was paying over the winch head, the allegation showing that plaintiff was holding the rope with one hand while attempting to untangle it with the other, did not show as a matter of law that he was guilty of contributory negligence, p. 614.</p> <p>4. Arpead. — Revieio.—Verdict.—A verdict for plaintiff is sustained by sufficient evidence where the record discloses evidence to support every material allegation of the complaint p. 614.</p>

Prom Lawrence Circuit Court; Robert N. Palmer, Special Judge. Action by the State of Indiana, on tbe relation of Thomas M. Honan, Attorney-General, against James Donaldson and others. Prom a judgment for relator, certain defendants appeal.

<p>Prom Henry Circuit Court; Charles K. Bagot, Special Judge.</p> <p>Action by the South Park Floral Company against J ames Garvey. Prom a judgment for defendants, the plaintiff appeals.</p>

<p>From Probate Court of Marion County (685) ; Frank B. Ross, Judge.</p> <p>Action by Carrie R. Porter against The Union Trust Company and others. From an adverse judgment, the plaintiff appeals.</p>

Prom Kosciusko Circuit Court; William, D. Frazer, Special Judge. Proceedings on the petition of A. J. Logan and others to contest a local option election. Prom a judgment of the circuit court dismissing the appeal of Patrick Galvin and others from the order of the hoard of county commissioners, this appeal is prosecuted.

From Delaware Circuit Court; Frank Ellis, Judge. Action by the G-rant Trust and Savings Company, as trustee for bondholders, against the Leader Publishing Company and another. From a judgment for plaintiff, the defendants appeal.

Prom Cass Circuit Court; John 8. Lcdry, Judge. Action by the State of Indiana, on the relation of Martin Pielo, against William P. Burkit, as Trustee of Washington Township in Cass County, and others. Prom a judgment for defendants, the relator appeals.

From Probate Court of Marion County (12,165); Frank B. Boss, Judge. Action by Leonore Meyers against August Kutzner, for the appointment of a guardian for the latter. From a judgment appointing a guardian, the defendant appeals.

From Montgomery Circuit Court; Jere West, Judge. Action between John E. English and others and Charles E. English and others. From a judgment for the latter, the former appeal.

<p>Prom Superior Court of Marion County (86,507) ; Joseph Collier, Judge.</p> <p>Action by Nathaniel G. Stringer against Vandalia Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

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

<p>Prom Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by tbe State of Indiana, on the relation of Dan Giles, against J. Prank Sproat, Trustee of Hayden Township. Prom a judgment for relator, the -defendant appeals.</p>

From Miami Circuit Court; Joseph M. Babb, Special Judge. Action by the State of Indiana, on the relation of the Western Construction Company, against the City of Pern and others. From a judgment for defendants, the relator appeals.

<p>1. Trespass. — Theory of Complaint. — Damages.—A paragraph of complaint on the theory that defendant by certain wrongful acts had destroyed a valuable mine with its appliances and accessories, rendered a manufacturing plant useless, had appropriated a strip of land belonging to plaintiff, and had removed a switch track from his lands, by reason of all of which plaintiff was damaged in a specified sum, was not objectionable as seeking a recovery for the loss of profits to the manufacturing plant alone, p. 701.</p> <p>2. Pleauing. — Determination of Theory. — The theory of a pleading is to be determined from the general scope of its allegations, and not from isolated and detached parts of the averments, p. 701.</p> <p>8. Eminent Domain. — Talcing Property. — Remedy of Landowner. —Damages.—Where land is appropriated by a railroad company without the consent of the owner and without an assessment of damages, such owner, though acquiescing in the taking, may sue to recover damages for such appropriation, pp. 702, 706.</p> <p>4. Appeal. — Waiver of Error. — Assignments of error in the overruling of demurrers to paragraphs of complaint are waived by appellant’s failure to point out error, p. 702.</p> <p>5. Appeal. — Review.—Harmless Error. — Ruling on Demurrer.— The sustaining of a demurrer to a paragraph of answer averring the taking of plaintiff’s land under a license, was harmless, where all the evidence admissible thereunder was also admissible under other paragraphs to which demurrers were not sustained. p. 703.</p> <p>6. Railroaus. — Right of Way. — Extent.—Under a deed for a right of way through grantor’s land for the space of fifty feet on each side of the center line of the road, the railroad company has no authority to appropriate any land or take material beyond the limit of fifty feet from the center of such right of way. p. 703.</p> <p>7. Trespass. — Injury to Land. — Independent Contractors. — It is no defense to an action against a railroad company for damages on account of the destruction of entries and tunnels in plaintiff’s coal mine caused by the making of excavations on plaintiff’s land in lowering the grade of defendant’s track, that the work was done by an independent contractor over whom defendant had no control as to the manner of doing the work, since he who counsels, advises, abets or assists another to commit a tort, or joins in its commission, as well as he who actually commits the wrong, is a trespasser, and each is responsible for all the injury dono, p. 704.</p> <p>8. Easements. — Severance of Surface and Minerals. — Basement of Way. — The owner of the fee to land over which an easement for a railroad right of way has been granted, remains the owner of the minerals therein, and may make all lawful use of the land not inconsistent with the free use of the right of way. p. 706.</p> <p>9. Railroads. — Right of Way. — Where a railroad company as the owner of the easement had the right to occupy the surface of the land for a right of way, and the owner of the fee had the right to mine for coal thereunder, it was the duty of each to use his property so as not to unlawfully interfere with the other’s right, and the destruction by the company of tunnels constructed beneath the right of way for the purpose of mining coal rendered the company liable in damages, pp. 706, 707.</p> <p>10. Appeal. — Review. — Instructions. — Weight of Expert Testimony. — In an action against a railroad company for damages to plaintiff’s mine and brick plant, and for the wrongful appropriation of land, an instruction to the effect that the opinions of experts, who had testified concerning values and conditions, were not conclusive upon the jury, but were to be considered in connection with all the other evidence in the case in determining to what extent, if any, plaintiff’s property was diminished in value by the alleged wrongs, that the jury was the sole judge of the weight to be given such opinions, ete., was not objectionable as directing the jury that the testimony of the experts was to be considered with all other evidence in the ease, whether it related to the question of damages or not, since it must be presumed that the jurors were men of ordinary intelligence and understood the court to mean that such testimony should be considered with all the other evidence on the question of damages. p. 707.</p> <p>11. Appeal. — Review.—Instructions.—Weight and Sufficiency of Evidence. — An instruction that the jury was the judge of the weight of the evidence and the credibility of the witnesses, and that it could take into consideration the opportunities for knowledge of the facts about which witnesses had testified, the extent, if at all, to which they had been corroborated or contradicted by other evidence in the case, together with such other facts as would aid it in weighing the testimony, was not objectionable, since it must have been understood as not relating to other facts outside and foreign to the case. p. 708.</p> <p>12. Eminent Domain. — Measure of Damages. — Value of Land.— The measure of damages in an action against a railroad company for land appropriated was the value of the land taken, p. 708.</p> <p>13. Appeal. — Revieio.—Invited Error. — Appellant can not be heard to complain of an instruction given upon a theory not warranted by the pleadings, where it appears that it tendered an instruction upon the same theory, p. 709.</p> <p>14. Railroads. — Injwy to Lands. — Liability.—A railroad company, though having the right to lower the grade of its track to any depth it chooses, must protect the rights of the owner of the fee in entries and air passages constructed by him under the right of way in the mining of coal thereunder, especially where thej' were constructed pursuant to an agreement with the company, and, in an action to recover for such injury, instructions that defendant company would not be liable for such injuries from the lowering of its grade were properly refused, p. 711.</p> <p>15. Appeal. — Review—Misconduct of Counsel. — Alleged misconduct of counsel in argument to the jury is not available on appeal, where the record discloses that upon objection at the time the remarks were withdrawn and the jury was instructed to disregard them. p. 711.</p> <p>16. Appeal. — Review. — Intervening Error. — Where it appears that errors, if any, were slight and did not affect the real merits of the case, they will be disregarded and the judgment will be affirmed, p. 712.</p>

<p>From Superior Court of Marion County (77,128) ; Pliny W. Bartholomew, Judge.</p> <p>Action by the State of Indiana, on the relation of James Bingham, Attorney-General, against the Fred Miller Brewing Company of Milwaukee, Wisconsin. From a judgment for defendant, the relator appeals.</p>

<p>From Superior Court of Marion County (93,092) ; Clarence B. Weir, Judge.</p> <p>Action by David Grube and others against Ann McFerran. From an interlocutory order appointing a receiver, the defendant appeals.</p>

<p>From Lawrence Circuit Court; Oren O. SwaAls, Judge.</p> <p>Action by the Southern Indiana Power Company against James Meadows and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>From Henry Circuit Court; Ed. Jackson, Judgte.</p> <p>Action by the South Park Floral Company against the City of Newcastle. From a judgment for defendant, the plaintiff appeals.</p>