Volume 183 — Indiana Reports

From Hamilton Circuit Court; Meade Vestal, Judge. Proceedings against Earl S. Baker for contempt of court. From a judgment that he was in contempt, and imposing a fine, the defendant appeals.

Prom Johnson Circuit Court; William E. Deupree, Judge. Action by Elizabeth 'Whitehead, administratrix of the estate of Taylor Whitehead, deceased, against the Nordyke & Marmon Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

Prom Vigo Circuit Court; Charles M. Fortune, Judge. Action by Albert Shea and another against David Ryder and another. Prom an interlocutory order appointing a receiver, the defendants appeal.

<p>From Bartholomew Circuit Court; Hugh Wickens, Judge.</p> <p>Action by Baker S. Ruddick and others against the City of Columbus. Prom a judgment dismissing the action, the plaintiffs appeal.</p>

<p>Prom Allen Circuit Court; Edward O’Rourke, Special Judge.</p> <p>Action by William P. Carpenter against John Suelzer, Sr. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Porter Circuit Court; A. D. Bartholomew, Special Judge. Action by the Interstate Iron and Steel Company against the City of East Chicago and others. Prom a judgment for plaintiff, the defendants appeal.

<p>Prom Daviess Circuit Court; Joseph E. Henley, Special Judge.</p> <p>Prosecution by tbe State of Indiana against Van Allen and others. Prom a judgment of conviction, the defendants appeal.</p>

<p>Prom Superior Court of Marion County (93,429); Charles J. Orbison, Judge.</p> <p>Action by the State of Indiana, on the relation of the Public Service Commission, against the Vandalia Railroad Company. From a judgment for defendant, the relator appeals.</p>

Prom Cass Circuit Court; John S. Lairy, Judge. Action by the State of Indiana, on the relation of Jeptha M. Martin, trustee of Jefferson School Township, Cass County, against Prank Graham and others, composing the Advisory Board of Jefferson Township. Prom a judgment for defendants, the relator appeals.

<p>Prom Johnson Circuit Court; Wm. E. Deupree, Judge.</p> <p>Action by Ida M. Smith against the Travelers Protective Association of America. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>Prom Marion Circuit Court (18,065); Charles Remster, Judge.</p> <p>Action by Henry ~W. Bullock against Henry Jameson and others. Prom a judgment for defendants, the plaintiff appeals.</p>

Prom Benton. Circuit Court; Burton B. Berry, Judge. Proceeding following a judgment setting aside the last will of Jennie E: Caldwell, deceased, and pending appeal, in which the executors were ordered to file a report and to pay into court the money coming into their hands as such executors. Prom such order, the executors appeal.

From Superior Court of Vanderburgh County; F. M. Hostetter, Judge. Proceeding for the construction of a dram, on the petition of Barbara Spilker and others. From a judgment establishing the drain, J. Rudolph Broerman and others appeal.

<p>Husband and Wife. — Wife’s Interest in Realty of Deceased Husband. — Debts Contracted During Widowhood. — Sale During Subsequent Marriage to Satisfy Debts. — Where the owner in fee simple of lands died intestate in 1875, leaving a wife and two children, aged one and five years respectively, surviving him, and the wife, during her widowhood, contracted debts for necessaries for herself and children for which she executed certain notes, and after her subsequent marriage actions were commenced to collect the notes and subject her one-third interest in the real estate to' sale for their payment, in which such interest was ordered sold, and no appeal was thereafter taken from the judgments, the children of such first marriage were not entitled to a judgment in ejectment and to quiet title in them to the land sold in satisfaction of such judgments, in an action brought by them after the death of their mother on the theory that under the act of May 14, 1852 (Acts 1852 p. 248, §§17, 18, 1 G. & H. p. 294), she had no power to alienate the land descending to her on the death of her first husband. (Schlemmer v. Rossler [1877], 59 Ind. 326, and Smith v. Beard [1880], 73 Ind. 159, distinguished.)</p>

<p>Appeal. — Imperfect Term Time Appeal. — Dismissal.—Where, at the time the motion for new trial was overruled, an appeal was prayed and the amount of the bond was fixed, but the sureties were not named, nor the bond approved-, either at that time or within the term, the appeal was not perfected as a term time appeal, and, in the absence of any steps to perfect a vacation appeal, a dismissal was required.</p>

<p>1. Food. — Umoholesome “Meat". — Statutory Provisions. — Indictment. — Sufficiency.—Under §2444 Burns 1914, Acts 1905 p. 584, §538, prohibiting the sale or exposure for sale of “any kind of diseased, corrupted or unwholesome provisions, whether for meat or drink,” an indictment charging the accused with unlawfully having in his possession with intent to sell, and exposing for sale, “corrupted and unwholesome provisions for human food, to wit,meat”, was not uncertain by reason of the use of the word “meat” without further words of limitation and description, since</p> <p>■ the word meat, though perhaps comprehensive enough to include food other than the flesh of animals, under the usual interpretation means animal flesh, p. 101.</p> <p>2. Food. — Umoholesome Food. — Knowledge of Accused. — Evidence. —In a prosecution for keeping and exposing for sale certain unwholesome meat, evidence showing that the carcass of a cow was brought into defendant’s plant and a portion of it was made into minced or pressed ham, and that after receiving the protest of th'é meat inspector the defendant directed the dressing of the carcass in the usual manner of dressing beef, and part of it was thereafter made into minced ham, was sufficient to warrant the jury in finding that defendant knowingly had the meat in his possession with intent to sell the same for human food. p. 103.</p>

From Clinton Circuit Court; Joseph Combs, Judge. Action by William McDoniels, administrator of the estate of John W. McDoniels, deceased, against the Wabash Railroad Company. From a judgment for plaintiff, the defendant appeals.

<p>Prom Tippecanoe Circuit Court; Richard P. DeHart, Judge.</p> <p>Prosecution by the State of Indiana against Wilbur G. Moore. Prom a judgment of conviction, the defendant appeals. Affirmed.</p>

<p>1. Master and Servant. — Injuries to Servant. — Trial.—Answers to Interrogatories. — In a servant’s action for injuries sustained while lifting a easting by means of a rope drawn through an eyebolt attached thereto, where the negligence charged was as to the defective manner in which the eyebolt was attached to the casting and the assurance by defendant that the attachment was safe, answers by the jury to interrogatories, even if conceded as showing that plaintiff was a skilled machinist and relied on his own judgment in the use of the eyebolt, were rendered ineffective to overcome the general verdict for plaintiff by- an answer directly finding that plaintiff used the eyebolt because of his reliance on the assurance previously given, p. 119.</p> <p>2. Appeal. — Review.—Interrogatories to Jury. — Waiver of Objections. — Where the record on appeal does not disclose any objection to the form of an interrogatory submitted to the jury, appellant is in no position to object to a consideration of the answer thereto, p. 120.</p> <p>3. Master and Servant. — Injuries to Servant. — Assurance of Safety. — Instructions.—In a servant’s action for personal injuries sustained in the use of a defective appliance after assurance by the master of its safety, an instruction that where a servant knows of a defect he can not be said to rely on the assurance that danger does not exist, and it is only where a servant is misled by the assurance of the master that he can excuse himself from the assumption of the risk on the ground of assurance by the master of no danger in the use of an appliance which he knows as a matter of fact to be insufficient, was erroneous, in view of evidence showing that plaintiffs knowledge of the defect and attending danger was equal to that of defendant. (Inland Steel Co. v. Kiessling [19101, 174 Ind. 630, criticised.) p. 120.</p> <p>4. Appeal. — Revino.-—Instructions.—Disposition of Cause. — Where . the verdict is clearly right under the evidence the judgment may be affirmed notwithstanding an erroneous instruction, but not where the evidence is such that the court can not say that the verdict was not influenced by such instruction, p. 122.</p>

<p>From Superior Court of Marion County (80,899); Charles J. Orbison, Judge.</p> <p>Action by the Franklin Coil Hoop Company against the Southern Product Company. From a judgment for plain-tiffi, the defendant appeals.</p>

<p>Prom Vanderburgh Cirenit Court; Duncan C. Givens, Judge.</p> <p>Prosecution by the State of Indiana against Bert Parker. Prom a judgment of conviction, the defendant appeals.</p>

<p>From Blackford Circuit Court; -Wm. H. Eichhorn, Judge.</p> <p>Action hy The Pittsburgh, Cincinnati, Chicago and St: Louis Railway Company against the Sneath Glass Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Jasper Circuit Court; Charles W. Hanley, Judge.</p> <p>Action by Mary M. Chappell against The Pittsburgh, Cincinnati; Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

Prom Carroll Circuit Court; Charles W. Hanly, Special Judge. Action by the State of Indiana, on the relation of the Board of Commissioners of the County of Carroll, against Martin G. Haun. Prom a judgment for relator, the defendant appeals.

<p>From "Whitley Circuit Court; Luke H. Wrigley, Judge.</p> <p>Prosecution by the State of Indiana against Berta Clark. From a judgment of conviction, the defendant appeals.</p>

<p>Pbostitutiow. — Keeping House of Ill-fame. — Affidavit.—An affidavit under §2357 Burns 1914, Acts 1905 p. 584, §400, charging that defendant “did then and there unlawfully keep a house of ill-fame, which was then and there resorted to for the purpose of prostitution and lewdness by persons, who were then and there of bad reputation for chastity and virtue”, substantially follows the statute and is sufficient.</p>

<p>1. Adultery. — Trial.—Verdict.—Venire de Novo. — In a prosecution for adultery a verdict that finds “the defendants guilty and fix their punishment at imprisonment in the county jail for 100 days and that they be fined in the sum óf $250”, is sufficiently certain and is subject to no other construction than that the defendants are each guilty, that both should be imprisoned for one hundred days and that both should pay a fine of $250; hence a motion for a venire de novo based upon uncertainty in the verdict was properly overruled, p. 163.</p> <p>2. Criminal Law. — Trial. — Verdict. — Venire de Novo. — When Granted. — A verdict, however informal, is good if the court can understand it, and unless it is so uncertain or defective that no judgment can be rendered thereon, a motion for venire de-novo will be denied, p. 163.</p> <p>3. Adultery. — Evidence.—Sufficiency.—Direct and positive' proof is not essential to a conviction for adultery, but the evidence is sufficient if it establishes facts and circumstances from which guilt may be inferred, and which will satisfy a rational and just man beyond a reasonable doubt, p. 164.</p> <p>4. Adulters. — Evidence.—BufflQiency.-^Jury Question.-^-ln a prosecution for adultery the question of the inferences to be drawn from the evidence is for the jury, and if there is some evidence to warrant an inference of guilt, the verdict will not be disturbed on the ground of insufficient evidence, p. 164.</p>

<p>From Superior Court of Marion County (82,814) ; Charles J. Orbison, Judge.</p> <p>Action by the Railroad Commission of Indiana against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company, in which The Public Service Commission of Indiana was substituted as plaintiff. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Randolph Circuit Court; Wm. A. Thompson, Special Judge.</p> <p>Prosecution by the State of Indiana against William E. McDougal. From a judgment of conviction, the defendant appeals.</p>

<p>1. Taxation. — Taw Sales. — Redemption. — Refunding Purchase Money. — Under §10366 Burns 1914, Acts 1891 p. 199, §192, authorizing the redemption of land sold for taxes at any time within two years after the sale, and §10386 Burns 1914, Acts 1891 p. 199, §212, providing that the auditor, on discovering that a sale of land for taxes was invalid for any cause, shall not convey same, but shall refund the purchase money and the interest thereon, the court did not err in concluding as a matter of law that the purchaser of three lots at a tax sale was not entitled to a deed, where the facts found show that two of the lots were redeemed about two months after the sale, and that at the time of such redemption the auditor declared the sale of the other lot void for the reason that there was no delinquency at the time of the sale, and drew a county order to the purchaser for the purchase money and interest on such void sale. p. 173.</p> <p>2. Taxation. — Taw Sales. — Mandamus to Compel Execution of Deed. — Evidence.—In an action to mandate a county auditor to execute a tax deed, where part of the land sold had been redeemed and the sale as to the remainder had been declared void, the evidence was not insufficient to sustain the findings, though it showed some irregularity both as to the redemption and as to the releasing from sale on the ground of invalidity, and the denial of the relief sought was within the discretion of the court, p. 174.</p> <p>3. Mandamus. — Issuance of Writ. — Discretion of Court. — Rights of Third Parties. — The issuance of a writ of mandate generally rests in the sound discretion of the court, and it will not, as a general rule, be awarded where it appears that the rights of third persons, not parties to the action, are involved, p. 174.</p>

<p>1. Poknication. — Evidence.;—Sufficiency.—Where the evidence is such as to warrant the inference of unlawful and lascivious commerce constituting the offense of fornication, and to overcome' every reasonable doubt to the contrary, it is sufficient to sustain ■ a conviction, p. 176. '</p> <p>2. Poeotcation. — Trial.—Admission .of Evidence. — In a prosecution for fornication, where the woman with whom the offense was charged to have been committed testified that she never occupied a bed with defendant, and had never had sexual intercourse with him, there was no error in sustaining an objection to a question on cross-examination ashing whether she and defendant at any time lived together as husband and wife. p. 176.</p> <p>3. Poenicatxoit. — Trial.—Admission of Evidence. — In a prosecu-tion for fornication, there was no error in refusing to strihe out the testimony of a witness that defendant, prior to his marriage, had admitted that one act of sexual intercourse had tahen place between him and the woman with whom he was charged with having committed the offense, since, though proof of illicit relations during the time they lived together as charged in the indictment was essential, evidence of such admission was proper to go to the jury together with other facts and circumstances shown as forming a basis from which the jury might properly infer such fact, if the inference arising was so strong as to remove all reasonable doubt p. 177.</p> <p>4. Appeal. — Review.—Objections to Instructions. — -Objection urged on appeal to one of the instructions given at the trial is not available, where the specification of error in the motion for new trial challenged all of the instructions jointly and not severally, since, unless all of the instructions so challenged were bad, the court did not err in refusing a new trial thereon, p. 177.</p>

<p>1. Criminal Law. — Defenses. — Insanity. — Burden of Proof. — Where the defense of insanity is properly pleaded, the burden rests upon the State to prove beyond a reasonable doubt that defendant was sane at 'the time of the commission of the alleged crime, and such burden never shifts, p. 179. ,</p> <p>2. Criminal Law. — Defenses.—Insanity.—Evidence.—Burden of Proof. — The presumption of sanity is sufficient to constitute a prima facie case in favor of the State where there is no evidence to dispute it, so that the State is not required to introduce evidence in chief to prove the sanity of defendant; but if some evidence is introduced upon that issue, the jury, if called upon to consider such evidence, must find that the State has sustained the burden of establishing defendant's sanity beyond a reasonable doubt, p. 179.</p> <p>3. Criminal Law. — Defenses.—Insanity.—Reasonable Doubt. — Evidence. — Reasonable doubt as to the sanity of defendant may arise from evidence introduced by the State as well as from that-introduced by defendant, p-. 180.</p> <p>4. Criminal Law.— Defenses.— Insanity.— Instructions.— An instruction in a criminal prosecution wherein insanity had been pleaded, stating that -the burden of proving such defense was upon defendant, though he was not required to prove it beyond a reasonable doubt, but that it was sufficient if defendant by evidence adduced raised in the minds of the jurors a reasonable doubt as to his sanity, etc., was erroneous in the statement as to the burden, and was confusing in that the part following was susceptible to the construction that the evidence necessary to raise such reasonable doubt must be produced by defendant, p. ISO.</p> <p>5. Appeal. — Review.—Refusal of Instructions. — Where requested instructions correctly stated the law, they should have been given, unless the legal propositions embodied therein were fully covered by instructions given, p. 1811</p>

<p>Prom Randolph Circuit Court; Wm. A. Thompson, Special Judge.</p> <p>Prosecution by the State of Indiana against John H. B. White. Prom a judgment of conviction, the defendant appeals.</p>

<p>Prom Gibson Oirenit Court; Eeráis F. Clements, Judge.</p> <p>Action by Mary S. Logsdon and others against the Supreme Council Catholic Knights of America. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Criminal Law. — Trial.—Denial of Motion to Poll Jury. — Subsequent Correction of Verdict. — Where the jury in a criminal case returned a defective verdict of guilty, and defendant moved to have the jury polled, which motion the court overruled and thereupon without accepting or recording the verdict directed the jury to return, to the jury room and correct the same, and the judgment was rendered on the corrected verdict, defendant was not harmed by the overruling of his motion, and though a denial of the right given by §2142 Burns 1914, Acts 1905 p. 584, §266, to have the jury polled would be reversible error, the right was lost by failure to renew the motion on the return of the corrected verdict, p. 200.</p> <p>2. Criminal Law. — Appeal.—Questions Reviewablc. — Competency of Jurors. — Record.—Nothing is presented for review by a motion for new trial on the ground that certain jurors made false answers to questions touching their competency, where no part of the evidence is in the record and it is not shown by any special bill of exceptions what, if any, questions were asked of either juror, and the only evidence of any question asked or answer made is contained in recitals in affidavits embraced in the motion for new trial and in a motion to discharge the jury. p. 202.</p> <p>3. Criminal Law.— Appeal. — • Review.— Misconduct. — Evidence.— Conclusiveness of Finding. — The finding of the trial court as to alleged misconduct of a juror and of the prosecuting attorney, based on affidavits and counter affidavits filed in connection with a motion for new trial, is conclusive, p. 202.</p> <p>4. Criminal Law. — Trial.—Correction of Verdict. — Where the jury in a criminal case returned a defective verdict of guilty, which was neither accepted nor recorded, the defendant was not harmed by the action of the court in directing the jury to correct its verdict, p. 202.</p>

<p>1. Corporations. — Contracts With PubKc Utility for Lighting.— Statutes. — Under §41 of the Public Utilities Act (Acts 1913 p. 167, §10052e2 Burns 1914) providing that every public utility shall file a schedule of rates which have been established by it for any service performed within the State, the initial rate is to be fixed by the filing of the schedule of rates with the Public Service Commission, and it is immaterial whether the rates set out in such schedule are fixed by agreement, or by the utility company proposing to render the service; and, where a proper rate is fixed by the utility company for furnishing light to a municipality and a schedule containing the same is filed, the contract of the municipality assenting to such rate prior to the filing of the schedule would not invalidate it. p. 205.</p> <p>2. Municipal Corporations. — Contracts With Public Utility for Lighting.- — Taxpayer's Suit to Enjoin Performance. — Complaint. —A complaint speaks as of the date of its Sling; hence, even if a taxpayer of a city'may enjoin the performance of a contract for public lighting which obligates the city to pay for light furnished contrary to the provisions of §47 of the Public Utilities Act (§10052ul Burns 1914, Acts 1913 p. 167) making it unlawful for any public utility to charge, demand, collect or receive any tolls or charges not specified in its schedule of rates filed with the Public Service Commission, a complaint in such an action alleging the execution of a contract to furnish light to a city, for a period beginning at a time subsequent to the filing of the complaint, and that no rate for such service had been established in the schedule of rates filed by the company, was insufficient in the absence of a showing therein that it was the intention of the company to charge and collect, and of the city to pay, a rate not covered by a schedule properly on file when the service was furnished, pp. 206, 207.</p> <p>3. Pleadings. — Demurrer.—Admissions.—A demurrer admits the truth only of facts well pleaded, p. 206.</p> <p>4. Municipal Corporations. — Actions by Taxpayers. — Bight to Maintain.- — A taxpayer suing to enjoin a city and a light company from carrying out a contract for public lighting has no interest in the contract except in so far as its performance will affect the public treasury of the city, and where he fails to show that the public funds are in danger of being illegally dissipated, he fails to state a cause of action, p. 207.</p> <p>5. Municipal Corporations. — Contracts ivith Public Utility for Lighting. — Bights of Private Consumer. — The rights of a private consumer of electric current can not be affected by tbe contract of a municipality -with a lighting company for furnishing light to the city, entered into prior to the filing of a schedule including the rate to be charged, since the rates can be only such as may be fixed by the Public Service Commission, and the presumption obtains that they will be reasonable and fair to all. p. 207.</p>

<p>Prom Huntington Circuit Court; Samuel E. Cooh, Judge.</p> <p>Action by Marion ~W. Eckman against Lola E. Funderburg, and others. From a judgment for defendants, the plaintiff appeals.</p>

<p>1. Lotteries. — Statutes.—Advertising Suit Club. — The gravamen of the offense defined by §2465 Burns 1914, Acts 1905 p. 584, §556, is the advertising of, and giving publicity to, a contemplated lottery, gift enterprise or scheme of chance; hence the advertisement of a suit club, to be conducted in such a way as to constitute either a lottery, gift enterprise or a scheme of chance, would constitute a violation of the statute, although there is nothing in the advertisement to indicate that the club is a lottery, gift enterprise or scheme of chance, p. 217.</p> <p>2. Lotteries. — Unlawful Advertising. — “Suit Club”. — The mere advertisement of a suit club without any indication that it is a lottery, gift enterprise or scheme of chance, would not of itself constitute a violation of §2465 Burns 1914, Acts 1905 p. 584, §556, since the term “suit club” is comprehensive enough to include something wholly legitimate and outside the prohibition of the statute, p- 217.</p> <p>3. Lotteries. — Unlawful Advertising. — Affidavit.—Sufficiency.—In a prosecution for advertising a lottery scheme in violation of §2465 Burns 1914, Acts 1905 p. 584, §556, where the advertisement set out was that of a suit club, but in no way indicated that the club was to be conducted as a lottery, gift enterprise or scheme of chance, the affidavit was insufficient without an allegation of facts showing that the club was to be conducted in violation of the statute, p. 217.</p>

<p>Prom Posey Circuit Court; Herdis F. Clements, Judge.</p> <p>Action by the Harding & Miller Music Company against Milton Cushman, Treasurer of Gibson County. Prom a judgment for defendant, the plaintiff appeals.</p>

From Dubois Circuit Court; John L. Brets, Judge. Proceeding for tbe improvement of a highway on the petition of Frank Zimmer a.nd others in which John IT. Chanley and another remonstrated. From a judgment for petitioners, the remonstrants appeal.

, Prom Henry Circuit Court; Ed-Jackson, Judge. Proceedings for the establishment of a highway on the petition of Em^line Goins and others, in which Calvin A. Bronnenberg and another .filed remonstrances. Prom a judgment establishing the highway, the remonstrants appeal.

From Jasper Circuit Court; T. B. Cunningham, Special Judge. Drainage proceeding on the petition of John P. Ryan and others. From a judgment establishing the drain, Ray D. Thompson and others appeal.

<p>1. Appeal. — Ruling on Demurrers. — Statutes.—Reversible error can not be predicated on the overruling of a demurrer for mis-, joinder of causes of action, under §346 Burns 1914, §341 R. S. 1881; and, under §350 Burns 1914, §345 R. S. 1881, error, if any,' in overruling a demurrer on the ground that the complaint does not state facts sufficient, is not cause for reversal, where, from a consideration of the facts' found, and the conclusions of law, it is apparent that the right result has been reached, p. 241.</p> <p>2. Corporations. — Talcing Over Property of Another Corporation. —Liability.—Where a new corporation takes over, as owner, all the property and assets of another corporation without compensation therefor other than the issuance of stock in the new organization, such new organization will be held liable in equity for the unpaid obligations of the old company, at least to the amount of the assets converted, though it might not be answerable if it pays the full value of the property acquired, p. 245.</p> <p>3. Corporations. — Talcing Over Property of Another Corporation. —Liability.—Where a railroad company, through negotiations, transfers, and consolidation with a company in which plaintiff was interested, finally acquired all the property and assets of the latter company without cost and without making provision for the payment of claims outstanding against it, equity would not permit the defendant to retain the property without paying such debts, and plaintiff, who had located the line on which the road was built, and whose surveys, maps and plats were used by defendant, and were valuable to the old corporation, had such an interest in its property and assets as to entitle him to compensation therefor, p. 245.</p> <p>4. Appeal.— Review.— Findings.— Amendment.— The trial court may amend its special finding of facts during the term in which judgment was rendered; hence it was not error to amend the findings to supply an omission which, in view of the evidence, was inadvertent, although a motion for new trial and for venire de novo had each been overruled, p. 246.</p>

<p>Original proceedings in the matter of the admission of Olin R. Holt to practice law as a member of the bar of the Supreme Court.</p>

Prom Jay Circuit Court; Robert M. Van Atta, Special Judge. Action by John B. Ropp, as treasurer of Jay County, against Dinfe M. Pulton, trustee for the Citizens Gas and Oil Mining Company, and another. Prom a judgment for defendants, the plaintiff appeals.

Prom Vanderburgh. Circuit Court; Duncan C. Givens, Judge. Condemnation proceeding by the Western Union Telegraph Company against the Louisville and Nashville Eailroad Company and another. Prom a judgment for defendants, this appeal is prosecuted.

Prom Montgomery Circuit Court; Jere West, Judge. Proceeding on the petition of Oliver W. Bowman and others to ascertain, describe and enter of record a highway established by public user. Prom an order in favor of petitioners, John P. Evans appeals.

From .Gibson Circuit Court; Simon L. Vandeveer, Judge. Proceeding on the petition of Charles Claymeier and others to establish a drain. From a judgment establishing the drain, William Meier and another appeal.

Prom Dekalb Circuit Court; Frank M. Powers, Judge. Action by Martha Carnahan against Edmund H. Freeman and Clarence Freeman, executors of the last will of Alexander S. Freeman, deceased, and others. From a judgment for defendants, the plaintiff appeals.

<p>Prom Sullivan Circuit Court; T7m. H. Bridwell, Judge.</p> <p>Action by Clara P. Bales and another against the Jackson Hill Coal and Coke Company. Prom a judgment for plaintiffs, the defendant appeals.</p>

<p>1. Tkial. — Evidence.—Records.—Province of Court and Jury.— Where a record of proceedings of a city council was introduced in evidence, and was so clear and certain that the trial court could ascertain its meaning from the language used, it was the duty of the court to determine its meaning and legal effect, and, since the meaning and legal effect were not for the jury, extrinsic evidence bearing upon the question was inadmissible, p. 286.</p> <p>2. Appeal. — Review.—Record Evidence. — Instructions.—In an action against a city for damages for personal injuries to an onlooker by a skyrocket during a display of fireworks in a public street, where, from a consideration of the record of the proceedings of the city council introduced in evidence, it is apparent that its purpose was to grant to certain labor organizations the free use of the streets for a celebration to be held on the day and night mentioned, and the privilege for a fireworks display, with no limitations therein other than that the streets should not be blockaded and business men should not be asked to pay for running stands, a use of the streets for a fireworks display was clearly authorized; hence the court did not err in refusing instructions to the effect that such record did not of itself prove that the display of fireworks was authorized and that the intent of the city to authorize such display must be proved by the preponderance of the evidence, p.286.</p> <p>3. Appeal. — Review.—Verdict.—Oonclusiveness.—"Where there was some evidence to sustain every material allegation in a paragraph of complaint, the evidence is sufficient to sustain a verdict for plaintiff, p. 287.</p>

<p>From Howard Circuit Court; William C. Purdum, Judge.</p> <p>Action by the Farmers Trust and Savings Company, administrator, against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Huntington Circuit Court; Abram, Simmons, Special Judge.</p> <p>Action by John Q. Cline to contest an allowance by the Board of Commissioners of Huntington County to Henry Beaver. From a judgment of dismissal, the plaintiff appeals.</p>

<p>From Steuben Circuit Court; Frank M. Powers, Judge.</p> <p>Prosecution by the State of Indiana against Erman Shank. From a judgment of conviction, the defendant appeals. (Transferred from Appellate Court under §1397 Burns 1914, Acts' 1901 p. 565.)</p>

Prom J ohnson Circuit Court; Wm. E. Deupree, Judge. Action by Elmira C. Weddle, administratrix of the estate of Thomas Weddle, deceased, against the Terre Haute, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiff, the defendant appeals.

Prom Jay Circuit Court; James J. Moran, Judge. Action by Harvey Thomas against Effie Maud McClellan and others. Prom a judgment for plaintiff, Effie Maud Me Clellan and another appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Superior Court of Marion County (79,930); Joseph Collier, Judge.</p> <p>Action by the Hart-Kraft Motor Company against the. Indianapolis Motor Car Company. From a judgment for defendant, the plaintiff appeals.</p>

<p>1. Criminal Law. — Evidence.—Weight and Sufficiency. — Although much of the evidence for the State in a criminal prosecution consisted of conclusions and conjectures of witnesses, and all of it was denied by defendant, the injured party and her father and mother, the verdict can not be disturbed on appeal.on the ground of insufficient evidence, since the court will not invade the province of the jury to weigh the testimony, p. 320.</p> <p>2. Witnesses. — Examination.—Unresponsive Answer. — In a prosecution for rape where a witness was asked if she had heard the defendant and the prosecuting witness talking on a certain occasion, and answered that the prosecuting witness “groaned worse than any woman giving birth to a child” the answer was not responsive to the question and should have been stricken out. p. 320.</p> <p>3. Criminal Law. — Evidence.—Hearsay.—Absence of Defendant.— In a prosecution for rape, the testimony of a witness, detailing a conversation concerning the health of the prosecuting witness, had with the mother of the latter in the absence of defendant, was improper and should have been stricken out. p. 321.</p> <p>4. Witnesses.— Impeachment.— Inconsistent Statements.— Necessity of Foundation. — A witness can not be impeached by proof of statements inconsistent with his testimony, unless the proper foundation has been made by directing his attention to the occasion when, and the person to whom, the alleged contradictory statement was made. p. 321.</p>

<p>1. Contracts. — Partial Invalidty. — Railroad Relief Association.— A contract executed in 1895 between a railroad relief association and an employe for the payment of relief benefits to the latter in case of injury, subject to certain rules embraced therein, among which were rules providing that benefits were not payable except upon the execution of a release relieving the railroad company from liability for damages, etc., was an indivisible contract and, since a contract of that character may be rendered wholly void by subsequent legislation, the provisions of the Federal Employer’s Liability Act of 1908 (35 U. S. Stat. at Large 65, Chap. 149), that any contract intended to enable a common carrier to exempt itself from liability should to that extent be void, had the effect of rendering unenforceable any of the other provisions of such contract, p. 326.</p> <p>2. Contracts. — Railroad Relief Associations. — Statutes.—The provisions of §5308 Burns 1914, Acts 1907 p. 46, in so far as they relate to interstate carriers, were superseded by the Federal Employer’s Liability Act of 1908 (35 U. S. Stat. at Large 65, Chap. 149), and are therefore inapplicable in testing the validity of a contract with a railroad employe for the payment of certain benefits subject to regulations for the exemption of the railroad company from liability in an action for damages; and-in the absence of the Federal statute such provisions could not affect a contract executed prior to its enactment, p. 328.</p>

From the Vigo Circuit Court; Josiah T. Walker, Special Judge. Proceedings on the petition of Seth Clark and others for the appointment of appraisers to assess the damages and benefits of a levee construction. From a judgment of the circuit court dismissing an appeal from the order of the board of county commissioners, this appeal is prosecuted.

<p>Original action instituted by tbe Attorney-General on information in the name of the State of Indiana against Eli H. Redman to remove him from the office of Judge of. the Yigo Circuit Court.</p>

<p>Appeal. — Defective Briefs. — Affirmance.—Where appellants’ brief wholly fails to comply with the requirements of Rule 22 in the presentation of errors relied on, error is not shown and the judgment must be affirmed.</p>

From Yigo Circuit Court; Charles M. Fortune, Judge. Action by Fred Parsons against John Ray and another. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Dubois Circuit Court; Oscar C. Minor, Special Judge.</p> <p>Drainage proceeding on the petition of Sarah Katterhenry and others, m which Henry Arensman and others filed remonstrances. From a judgment dismissing the proceeding, the petitioners appeal.</p>

<p>Prom Cass Circuit Court; John S. Lairy, Judge.</p> <p>Action by tbe Home Insurance Company against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Prom a judgment for plaintiff, the defendant appeals.</p>

Prom Superior Court of Marion County (70,878) ; Clarence E. Weir, Judge. Action by Aretas W. Hatch against Hector M. Gilchrist and another. Prom a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under subd. 2, §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Criminal Law. — Review.—Refusal of Instructions. — Defendant in a criminal prosecution can not complain of the refusal to give an instruction requested by him, where it appears that the request was not made until after the argument was begun, p. 399.</p> <p>2. Rape. — Time of Commission of Offense. — Instructions.—The time of the commission of the crime of rape is not of the essence of the offense, hence there was no error in the giving of an instruction on the material allegations to be proven to sustain the charge, which omitted the date of the crime,-and especially where the law as to proof of time was included in another instruction. p. 399.</p> <p>3. Rape. — Time of Commission of Offense. — Instructions.—In a prosecution for rape where the prosecuting witness fixed the date of the alleged offense and also testified that defendant had committed the act at various times subsequent to that date, defendant can not complain of an instruction stating that it was sufficient to show that the offense, if any was committed, was committed within five years prior to the filing of the affidavit, in the absence of a motion to require the State to elect on which particular act, as shown by the evidence, it would rely for conviction. p. 400.</p> <p>4. Rape. — Repitition of Offense.- — Election dy State. — Where the prosecuting witness in a rape case testifies to more than one commission of the crime by defendant, the court must, if requested by defendant, require the State to elect on which particular act it will rely for conviction, p. 400.</p> <p>5. Criminal Law. — Review.—Instructions.-—An instruction that a reasonable doubt which entitles the accused to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case, that the proof should be deemed beyond a reasonable doubt when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction on which they would act in their own important concerns and affairs of life, and that a doubt, in order to justify acquittal, must be reasonable and arise from a careful and candid consideration of all the evidence, correctly stated the law as far as it went. p. 401.</p> <p>6. Criminal Law. — Review.—Instructions.—Error can not be predicated on the giving of an instruction on reasonable doubt which stated the law correctly as far as it went, in the absence of a request for a more complete instruction and a denial of such request resulting in harm to defandant. p. 401.</p>

<p>1. Tbial. — General Verdict. — Scope.—A general verdict for plaintiff is a finding for plaintiff on each issue involved, p. 408.</p> <p>2. Wills. — Contest.—Undue Execution. — Pleading.—A general allegation of the undue execution of a will is sufficient to tender any issue of duress, undue execution or fraud that might be shown by the evidence, p. 408.</p> <p>3. Wills. — Contest.—Issues.—Undue Influence. — Answers to Interrogatories. — In a suit to contest a will, where undue execution was charged in general terms and there was a verdict for plaintiffs, the court properly overruled defendants’ motion for judgment on the jury’s answers to interrogatories which showed testatrix to have been of proper testamentary capacity, even though certain findings on the question of undue influence and delusions were such as to require their rejection, since it must be presumed in the absence of a showing to the contrary, that the general verdict was based on some issue of duress, fraud or undue influence, p. 408. .</p> <p>4. Appeal. — Review.—Answers to Interrogatories. — In reviewing a trial court’s ruling on a defendant’s motion for judgment on the jury’s answers to interrogatories, resort to the evidence is precluded, p. 408.</p> <p>5. Statutes. — Reenactment.—Adoption of Construction of Prior Statute. — 'Statute Authorizing Interrogatories to Juries. — By reenacting the statute relating to the submission of interrogatories to a jury (§572 Burns 1914, Acts 1897 p. 128), the legislature adopted the construction which the courts had previously placed thereon, p. 409.</p> <p>6. Wills. — Testamentary Capacity. — Religious Belief. — Spiritttalism. — The statutory right to make a will is not limited to those who discard a belief in any particular cult, dogma or principle; hence a belief in spiritualism of itself does not impair the right of testamentary disposition, p. 409.</p> <p>7. Wills. — Testamentary Capacity. — Religious Belief. — Evidence. —Instructions.—A belief in any religious doctrine, philosophical system or science may be vitally material, in connection with other facts and circumstances, in determining the question of one’s testamentary capacity; hence, where there was evidence that by a prior will testatrix made a bequest to a certain spiritualist, and the. will in suit omitted any gift to such person, that and other circumstances shown made the belief of testatrix in spiritualism a proper matter for consideration, and the court correctly refused an instruction that the subject of spiritualism had no bearing upon the question before the jury. p. 409.</p> <p>8. Evidence. — UnSoundness of Mind. — Opinion Evidence. — ■Non-experts. — In a suit to contest a will the opinions of nonexperts on the question of the soundness of mind of testatrix, based upon their statements, that they had observed her and observed her actions and appearance, etc., were proper to go to the jury as against the objection that no facts were detailed showing mental unsoundness, since the admissibility of such opinions is not determined from the detailed statements of facts on which they</p> <p>. are based, but rests upon a rule of necessity arising from the fact that there may be many things in the appearance and acts of a person whose mentality is under investigation that can not be fully and accurately described in words, but which nevertheless form a reliable basis for a conclusion, p. 410.</p> <p>9. Appeal. — Revieiv.—Evidence.—Verdict.—In a will contest, the court in considering the sufficiency of the evidence, without regard to the jury’s answers to interrogatories, to sustain a verdict for plaintiffs on the ground of testamentary incapacity, can not say that the verdict is unsupported even though the opinions of nonexperts on the question were not entitled to consideration, where there was other evidence that testatrix was of unsound mind. p. 411.</p> <p>10. Appeal. — Review.—Issues.—Evidence.—Answers to Interrogatories. — Statutory .Provisions. — Sections 572, 573 Burns 1914, Acts 1897 p. 128, relating to special findings require a special finding on particular questions of fact on any or all issues in ttie case, thus repelling any inference of a legislative intent to limit the use of special findings by a jury as a mere basis for judgment non obstante; and, in view of the history and reasons for the enactment, a consideration of the findings of a jury in answer to interrogatories is essential in determining the sufficiency of the evidence to sustain a general verdict in an action involving several issues, as in a will contest based upon unsoundness of mind, undue influence, etc., and such findings must be accepted as binding on any issue where they are supported by any evidence. pp. 411,423.</p> <p>11. Appeal. — Review-.—Findings.—Testamentary Capacity. — A finding that testatrix at the time of the execution of her will was capable of understanding and acting with ordinary discretion in the ordinary affairs of life, is a finding of fact and not the statement of a conclusion, p. 414.</p> <p>12. Wills. — Testamentary Capacity. — Requisites as to Memory.— A testator at the time of preparing and executing his will must Have sufficient mind and memory to know the extent and value of his estate, the number and names of those who are the natural objects of his bounty, their deserts with reference to their treatment of him, and sufficient memory to keep these things in mind long enough to have his will'prepared and executed; but it is not necessary that a testator actually remembers such facts, the test being whether he had sufficient memory to remember them, p. 415.</p> <p>13. Wills. — Testamentary Capacity. — Sufficiency of Memory.— Findings. — Special findings that the directions of testatrix were followed in the preparation of her will, that it was read to her and understood by her before she signed it, that when she gave the directions, and when the will was read and signed, she had sufficient mind to understand the business in which she was engaged, and had capacity to understand and act with ordinary discretion in the ordinary affairs of life, necessarily include all things required to constitute sufficiency of memory, and show that she was possessed of testamentary capacity when the will was executed, p. 415.</p> <p>14. Wills. — Testamentary Capacity. — Insane Delusions. — Though one may have sufficient mind and memory to make a will, his testamentary capacity may be destroyed by an insane delusion directly affecting the will. p. 416.</p> <p>15. Trial.— Special Findings.— Contradictory Findings.— Contradictory findings nullify each other if each is supported by some evidence, p. 416.</p> <p>16. Wills. — Insane Delusions. — Findings.—Evidence.—A finding that at the time of executing her will testatrix was under the belief that she had been ordered from the house of a certain person and because of such belief held a feeling of resentment against such person and her children which affected the will, and that such belief was deeply rooted and could not be overcome by argument or persuasion, if accepted as a finding that testatrix was laboring under an insane delusion affecting her will, can not stand in the absence of any evidence whatever to show that any effort was ever made to convince her of the falsity of her belief, since a mere mistake of fact does not constitute an insane delusion, pp. 416,418.</p> <p>17. Wills. — Testamentary Capacity. — “Insane Delusions”. — A mere mistake of fact does not amount to, nor even tend to show, an insane delusion, but to constitute such delusion'there must be a spontaneous conception and acceptance of that as a fact which has no existence except in the imagination, and a belief therein which is irremovable by reasoning or argument, p. 417.</p> <p>18. Wills. — Validity.—Undue Influence. — Generally a will dictated by supposed spirits can not stand, though a will, if reasonable, is not necessarily void because the testator believed that he made it pursuant to the advice of spirits, p. 419.</p> <p>19. Wills. — Validity.—Undue Influence. — While undue influence is generally exerted by the beneficiary, a will may be invalidated by undue influence of which the beneficiary was ignorant. P'. 419.</p> <p>20. Wills. — Validity.—Undue Influence. — An influence which does not induce the testator to make some gift in his will can not be deemed an undue influence, p. 419.</p> <p>21. Evidence. — Effect of Cross-Examination. — Where a witness in a will contest testified on direct examination that at a certain time the testatrix received a spirit communication requesting her “to do more” for a certain person, and on cross-examination said that the communication.might have been “you should remember Kate” or “do different with Kate”, the jury was warranted in finding that the supposed communication requested testatrix to “do more”, since it is within the province of the jury to reconcile apparent conflicts between the testimony of a witness on direct and cross-examination, p. 419.</p> <p>22. Wills. — Undue Influence. — Evidence.—Spirit Communications. —Courts can not inquire into the intents or purposes of disembodied spirits, but in a will contest where testatrix was supposed to have been influenced by an alleged communication from the spirit world, the construction placed by testatrix upon the alleged message was a legitimate subject of investigation, p. 420.</p> <p>23. Wills. — Undue Influence. — Evidence.—Under evidence showing that shortly before making the will in suit testatrix received a communication from the spirit of her deceased father requesting her to “do more” for a certain person, and that at another time she received a communication from the spirit of her deceased husband with reference to the will she intended to make, the jury was warranted in inferring that the supposed message from her deceased father requested her in making or changing her will to do more for such a person than she had done. p. 420.</p> <p>24. Wills. — Undue Influence. — Evidence. — Where after making some minor personal bequests, testatrix willed all her property, including 6,300 acres of land to her father for life, and after his death to a lady who had been raised by the parents of testatrix, for life, and shortly afterwards executed a deed conveying 628 acres ’of the land to such lady for life, and then after the death ■of her father executed a second will by which such lady was given a devise for life in one-third only of the residue of the net income of the estate, the jury was not warranted in finding that the execution of the last will was influenced by an alleged spirit message from the deceased father 'of testatrix advising her “to do more” for such lady. p. 421.</p> <p>25. Wills. — Undue Influence. — Evidence.—Findings.—A finding, warranted by the evidence, that the testatrix was not unduly influenced by her lawyer in the execution -of her will is conclusive, even if the evidence was also subject to the inference that the execution of the will was procured by the undue influence of such lawyer, p. 422.</p> <p>26. Wills. — Undue Influence. — Undue influence, to invalidate a will, must be directly connected with and operating at the time of its execution, and must be of such compelling force that the apparent testator is but the instrument by which the mastering desire of another is expressed, so that the supposed will, or the particular part in question, is not the will of the testator except in the sense that he has consented to put his name to it in the form in which it appears, p. 423.</p>

Prom Posey Circuit Court; Eerdis F. Clements, Judge. Action by Clarence O. Kraft and others against the Supreme Tribe of Ben Hurl Prom a judgment for plaintiffs, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Appeal. — Review. — Verdict. — Conclusweness. — A verdict for plaintiff can not be disturbed on the evidence where there is some evidence to support each averment of the complaint, since the weight of the evidence and credibility of the witnesses are questions for the jury. p. 431.</p> <p>2. Appeal. — Review.—Instructions.—There is no reversible error in the giving of instructions where the instructions as a whole properly present the law governing the case. p. 431.</p> <p>3. Appeal. — Review. — Refusal of Peremptory Instruction. — The court properly refused an instruction directing a verdict for defendant where there was evidence supporting every allegation of the complaint, p.432.</p> <p>4. Negligence. — Violation of City Ordinance. — Instructions.—In an action for personal injuries to plaintiff, who was struck by an automobile truck alleged to have been negligently driven to the right in passing a sprinkling cart, instead of to the left, where the ordinance required drivers in passing vehicles from the rear to drive to the left and made no exceptions as to passing sprinkling carts, a violation of such ordinance, constituted negligence per se, the court property refused an instruction that the act of driving to the right of a sprinkling cart was not a violation of the ordinance, and that defendant would not be liable. p..432.</p> <p>5. Appeal. — Review.—Rejection of Evidence. — In an action for injuries sustained in being struck by a motor truck, the court properly excluded the testimony of a bystander, who was not informed on the subject of operating motor trucks, in response to questions calling for his opinion as to the manner in which the truck in question ivas stopped, p. 432.</p> <p>6. Appeal. — Revieto.—Misconduct of Counsel. — Waiver of Error.— Alleged misconduct of counsel can not be made a ground for reversal where the record does not disclose any timely objections or exception in relation thereto, p. 433.</p> <p>7. Negligence. — Personal Injuries. — Instructions.—Loss of Time as Element of Damage. — Where the evidence in a personal injury case disclosed that plaintiff was 41 years of age, and had been earning $150 per month, that the injury caused his confinement to bed for nearly eleven weeks, and to the house for about seven months, that he was constantly under the care of a physician and nurse, had contracted.a doctor bill of $2,000, and that he was permanently disabled, the court was warranted in instructing the jury that it might consider loss of time as an element of damages, p. 433.</p> <p>8. Damages. — Personal Injuries. — Excessive Damages. — Where plaintiff in a personal injury case had a life expectancy of more than twenty-five years, an earning capacity of about $1,800 per year, and was shown to have been permanently disabled from performing any work, an award of damages in the sum of $15,000 can not be held excessive, p. 433.</p>

<p>1. Appeal.— Demurrer to Complaint.— Questions Reviewable.— Where a complaint for personal injuries, grounded on negligence of defendant in failing to drive his automobile to the right so as to give plaintiff one-half the -traveled portion of the highway in passing, alleged that defendant drove his automobile so that one-half of its width was to the left of the center line of the road, a demurrer, accompanied by a memorandum stating that no facts were stated showing negligence on the part of the defendant, was insufficient to present the question that the complaint did not show that defendant had not given one-half the “traveled portion” of the highway, on the theory that the center of the traveled portion was not necessarily the center of the highway, p. 436.</p> <p>2. Appeal. — Questions Reviewable. — Demurrers.—An objection on demurrer to the sufficiency of a pleading will not be considered on appeal unless the memorandum filed with the demurrer is so framed as to call the attention of the trial court thereto, p. 436:</p> <p>3. Negligence. — Automobiles.—Complaint.—Under the act of 1909 (Acts 1909 p. 328) requiring the driver of an automobile, on meeting a person driving a horse on a public highway, to proceed at a speed not exceeding six miles per hour, it was negligence per se to drive an automobile under such circumstances at a speed in excess of six miles per hour; hence a complaint charging negligence in that respect sufficiently showed negligence which was the proximate cause of the injury without alleging how much in excess of six miles per hour the defendant was traveling, p. 437.</p> <p>4. Appeal. — Waiver of Error. — Briefs.—Specifications in a motion for a new trial are waived by appellant’s failure to set out in his brief points and authorities to support same. p. 437.</p> <p>5. Appeal.- — Revieio.—Harmless Error. — Instructions.—Alleged error in the giving of an instruction on the question of damages will be treated as harmless where appellant’s motion for a new trial does not assign as a cause that the damages are excessive, p. 437.</p>

<p>From Marion Circuit Court (20,625); Charles Remster, Judge.</p> <p>Action by John A. Holland against the Vandalia Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Allen Circuit Court; J. W. Eggeman, Judge.</p> <p>Action by Edwin IT. Steele against the Chicago and Erie Railroad Company. Prom a judgment for plaintiff, the defendant appeals.</p>

From Madison Circuit Court; Charles K. Bagot, Judge. Action by Alvah. G. Young and another against Elijah Wiley. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>Railroads. — Liability for Fires. — Action.—Parties.—An action may be maintained against a railroad company by the owner of property destroyed by fire communicated by the company in the operation of its road, in which the insurer of such property may be joined as plaintiff, where it appears that the value of the property exceeded the insurance and that the insurer has paid the insurance so as to be subrogated to the rights of the owner to that extent</p>

<p>Prom Superior Court of Marion County (82,769) ; Charles J. Orbison, Judge.</p> <p>Action by John W. Shepherd against the Elgin Dairy Company. Prom a judgment for plaintiff, the defendant appeals. (Transferred from Appellate Court under subd. 2, §1394 Burns 1914,-Acts 1901 p. 565.)</p>

<p>From Sullivan Circuit Court; Wm. E. Bridwell, Judge.</p> <p>Action by Alice B. Drake against the town of Carlisle. From a judgment for plaintiff, the defendant appeals.</p>

<p>Prom Superior Court of Marion County (80,406) ; Vinson Carier, Judge.</p> <p>Action by Thomas Wise, administrator of the estate of Thomas P. Wise, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Eailway Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Criminal Law. — Arraignment.—Withdrawal of Plea. — Where an accused, having entered a plea of guilty on being arraigned, subsequently desires to withdraw the plea, the proper method is by verified petition for leave showing cause, and the service of notice on the prosecuting attorney of the time and place of presenting the petition, p. 489.</p> <p>2. Criminal Law. — Right to Withdraw Plea. — Discretion of Court. —Appeal.—The right of defendant to withdraw a plea of guilty is within the sound discretion of the trial court, and, in view of the presumption that obtains in favor of the ruling of a trial court, the denial of such application will generally be sustained on</p> <p>' appeal, where the record discloses no ground for the application, or where it appears that the ruling was based on conflicting evidence. p. 491.</p> <p>3. Criminal Law. — Refusal of Leave to Withdraw Plea. — Appeal. —Where the record clearly discloses that the trial court abused its discretion in refusing to permit an accused to withdraw a plea of guilty, the court on appeal will review the ruling and correct the error, even where the application for such leave is made after judgment, p. 491.</p> <p>4. Criminal Law. — Refusal of Leave to Withdraw Plea. — Application. — Sufficiency.:—Review.—Where the application of accused for leave to withdraw his plea of guilty was verified and set forth facts showing that he was of foreign birth, had not resided long in this-country, and had but a meager undertsanding of English, that his plea was procured by what under the circumstances amounted to duress and fraud, and that it was not true, etc., and the record shows that there were neither counter affidavits nor evidence to support the action of the trial court in denying the relief, the overruling of the application was an abuse of discretion warranting a reversal, p. 491.</p>

<p>Prom Henry Circuit Court ¡.Ed Jackson, Judge.</p> <p>Action by Coleman P. Cronse, administrator of the estate of Nancy II. Cronse, deceased, and another, against the Terre Hante, Indianapolis and Eastern Traction Company. Prom a judgment for plaintiffs, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>From Dekalb Circuit Court; Frank M. Powers, Judge.</p> <p>Action by August J. Delagrange against Arthur E. Waters. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>1. Fraud. — False Representations. — Action for Damages. — Reliance on Representations. — Complaint.—In an action pn-edicated on the ground of fraud, the complaint need not allege “that the plaintiff believed tbe false representations to be true and that he was thereby deceived and induced to act”, but it is sufficient if facts are pleaded to show that the transaction involved was fraudulent, with an 'allegation equivalent to that quoted, p. 503.</p> <p>2. Fraud.— False Representations.— Action for Damages.— Complaint.- — Sufficiency.—A complaint for damages on account of fraudulent representations as to the value of mining stock traded to plaintiff, alleging that defendant represented that he had received a certain dividend on the stock, which he in fact never received; that no such dividend had ever been paid and the stock was valueless, etc.; that said representations were false and known to be false by defendant at the time; that they were made for the purpose of deceiving and defrauding plaintiff and causing him to act thereon; and that plaintiff was ignorant of the facts and relied upon such representations, and by reason of the premises accepted the stock in exchange for his property, whereby he w'as damaged, etc., was sufficient, p. 503.</p> <p>3. Evidence. — Deeds.—Parol Evidence.- — Issues.—In an action for damages for fraud perpetrated in an exchange of stock to plaintiff for certain real estate, where the complaint alleged that plaintiff was the owner of an equity in such real estate, and as a part of the evidence plaintiff introduced a deed to himself and wife, the court properly permitted the plaintiff and his wife to testify that she had no interest in the-land, for the purpose of overcoming the apparent conflict between the deed and the averment of the complaint, since the rule forbidding the introduction of parol evidence to vary the terms of a written contract does not apply in an action between one of the parties to the contract and a stranger thereto, but is applicable only in actions between parties or privies, p. 503.</p> <p>4. Fkatjd. — Action for Damages. — Parties.—Evidence.—Sufficiency. —In an action for fraud on plaintiff in an exchange of stock to him for certain real estate, where plaintiff alleged his interest as being an equity in such real estate, and the deed introduced in evidence upon its face showed title in plaintiff and his wife, defendant’s contention that the verdict is not sustained by sufficient evidence, on the theory that since the evidence showed title by entireties and plaintiff’s wife had not been made a party, plaintiff could not recover in his own name, can not prevail, not only because the failure to make plaintiff’s wife a party, if material, should have been reached by the plea in abatement, and the defect was waived by failure to so raise it, but also because of the testimony of plaintiff’s wife amounting to a disclaimer of interest, p. 505.</p>

Prom Wells Circuit Court; Wm. H. Eichhorn, Judge. Action by Charles W. Plessinger, receiver of the insolvent partnership of Dwight K. Williamson and Willard C. Baker, against Willard C. Baker and others. Prom the judgment rendered, the plaintiff appeals. (Transferred from Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).

<p>1. Gaming. — Visiting Gambling Souse. — Indictment.-—Sufficiency. —A charge of visiting a gambling house couched in the language of the statute (§2371 Burns 1914, Acts 1905 p. 5S4, §470), is sufficient. p. 510.</p> <p>2. Gaming. — Visiting Gambling Souse. — Indictment.—Sufficiency. ■ — “Gdming Souse”. — Under §2371 Burns 1914, Acts 1905 p. 5S4, §470, fixing a penalty for visiting a gambling house, an indictment charging defendant with visiting a “gaming house” was sufficient, in view of §2045 Burns 1914, Acts 1905 p. 5S4, §174, providing that words used in a statute to define- a public offense need not be strictly pursued and that words conveying the same meaning may lie used, since “gaming house” is synonymous with “gambling house”, and means a house kept for the purpose of permitting persons to gamble for money or other valuable thing, p. 510.</p>

From Jáy Circuit Court; Daniel W. Comstock, Special Judge. Action by Marshall Fleming against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Railroads. — Relief Associations. — Statutory Provisions. — Validity. — The act of 1907 (§5308 Burns 1914, Acts 1907 p. 46), prohibiting the establishing or maintaining of relief associations by railroad companies requiring the members to surrender or waive any right of damage for personal injuries or death, etc., was enacted pursuant to the police power of the State and is a proper exercise of that power, and, though it may incidentally affect interstate commerce, that fact, in the absence of congressional action, does not render the act invalid, p. 526.</p> <p>2. Constitutional Law. — Class Legislation. — Railroad Relief Associations. — The act prohibiting the establishing or maintaining of railroad relief associations which require the members to surrender or waive any right of damage for personal injuries or death, etc. (Acts 1907 p. 46, §5308 Burns 1914), though applicable alone to railroads, is not a violation of the constitutional inhibition against class legislation, p. 526.</p> <p>3. Statutes. — Repeal by Implication. — Railroad Relief Associations. — The repeal of a statute by implication is not favored, and §530S Burns 1914, Acts 1907 p. 46, prohibiting the establishing or maintaining of railroad relief associations under certain conditions, was not repealed by §8020c Burns 1914, Acts 1911 p. 145, relating to the exemption of employers from liability for personal injuries to employes, p. 527.</p> <p>4. Railroads. — Relief Associations. — Recovery of Payments Made by Employe. — Ordinarily parties to an executed illegal contract are in pari delicto and relief to either will be denied, but such rule is inapplicable to prevent recovery by a railroad employe of wages retained by the company as such employe's payment toward the fund of a relief scheme maintained by the company in violation of §5308 Burns 1914, Acts 1907 p. 46, although the complaint disclosed an executed contract, since the statute was enacted to protect employes who were parties to such contracts, and under such circumstances such an employe is not in pari delicto, p. 527.</p> <p>5. Railroads. — Relief Associations. — Recovery of Payments Made by Employe. — Where a railroad company organized and maintained a relief association contrary to §5308 Burns 1914, Acts 1907 p. 46, making void the contract of any employe in relation thereto, an employe, in an action by him to recover the wages retained by the company as his contribution to the relief fund, can not be denied relief on the ground that certain provisions of the contract were not violative of the statute and are severable from the illegal provisions, in the absence of anything appearing to warrant the application of such rule, or to estop him in law or equity, p. 527.</p> <p>6. Appeal. — Waiver of Error. — Briefs.—Error, if any, in the overruling of a motion to set aside the return to the summons is waived by failure to set out the return or its substance in appellant’s brief, p. 528.</p>

Prom Eipley Circuit Court; Robert C. Greigmile, Judge. Action by Louis Wagner and another against Nicholas Wagner. Prom a judgment for plaintiffs, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>Taxation.— Property Subject to Waxes.— Indebtedness.— Double Taxation. — Where plaintiff, the owner of certain land, entered into an agreement to sell it, by the terms of which the purchaser paid $5,000 in cash and was to pay the remainder in five j’ears from date of the contract with interest payable semiannually, to pay the taxes and keep the property insured, etc., and by which forfeiture was provided for in case of noncompliance by the purchaser, the latter’s obligation to pay the deferred installments was a debt owing to plaintiff and was taxable as such under §10143 Burns 1914, Acts 1S95 p. 21, providing that for the purpose of taxation personal property shall include all indebtedness due to inhabitants of the State, and the fact that the land was assessed in the name of plaintiff did not vitiate the listing of such debt for taxes on the ground of double taxation.</p>

From Rush Circuit Court; David W. McKee, Special Judge. Action by Andrew C. Brown, administrator of the estate of Augustus L. Perkins, deceased, against Judson Harmon, receiver. From a judgment for plaintiff, the defendant appeals.

<p>1. Intoxicating Liquors. — Transfer of License. — Gontract.—In an action to enforce the performance of a contract granting to plaintiff the exclusive option and privilege to purchase a saloon business, together with the fixtures, stock, lease and license, the court on appeal from an interlocutory order appointing a receiver, can not say that the contract on its face was illegal, but the question of whether it amounted to an absolute unconditional sale and obligated the owner of the business to do more than to take the steps required by §8323n Burns 1914, Acts 1911 p. 244, authorizing the transfer of liquor licenses and providing the procedure to be followed, was a matter of construction for the trial court in the main action, p. 540.</p> <p>2. Intoxicating Liquors. — Gontract for Sale of Business. — Goncm-rent Oral Agreement. — A written option for the purchase of a saloon business, including fixtures, stock, lease and license, is not affected by a concurrent oral agreement whereby the prospective purchaser was to conduct the business as agent for the owner until the sale and transfer could be completed, p. 541.</p> <p>3. Receivers. — Interlocutory Appointment. — Effect.—The appointment of a receiver pendente lite is not in any way a determination of any right or title of the litigants in the subject-matter of the controversy, p. 541.</p> <p>4. Receivers.— Interlocutory Appointment.— Appeal.— Unless it clearly appears that the trial court abused its discretion in making ail interlocutory appointment of a receiver, the appointment will not be set aside on appeal because of a possibility that the plaintiff may not recover judgment on final hearing in the main action, p. 542.</p> <p>5. Receivers. — Appointment.—Weight of Evidence on Appeal.— Proceedings for the appointment of a receiver form no exception to the rule that the court on appeal will not weigh conflicting oral testimony, p. 542.</p>

From Howard Circuit Court; William G. Purdum, Judge. Action by Indiana Railways and Light Company against the city of Kokomo and others. From a judgment for defendants, the plaintiff appeals.

<p>1. Contracts. — Construction.—Construction tnj Parties. — The construction placed upon a contract by the parties thereto is binding upon them. p. 554.</p> <p>2. Railroads. — Right of Wag Agreement. — Construction.—Where a side track was constructed over the land of a brick manufacturing company under a written agreement authorizing the construction of the track to connect with a certain coal mine, and providing that the railroad company would change the track from time to time if the excavations of the brick company for shale made changes necessary, and providing for the removal of the track by the railroad company at any time it saw fit, and the evidence showed that the track was never used in business not connected with the coal mine until after the abandonment of the mine, and then only on obtaining the consent of the brick company, that operation of the mine was discontinued and that thereafter the track was allowed to become out of repair until it was dangerous to use same, etc., the railroad company was bound by the construction thus placed on the agreement to the effect that such track was under the control of the brick company, p. 554.</p>

Prom Marion Circuit Court (15,0^, , ■ Remster, Judge. Action by Joseph MeCullom, administrator oí the estate of Joseph W. Roebuck, deceased, against the Cincinnati, Hamilton and Dayton Railway Company. Prom a judgment for plaintiff, the defendant appeals.

From Posey Circuit Court; Heráis F. Clements, Judge. Action by Lillie S. Lipking, administratrix of tbe estate of John P. Lipking, deceased, against tbe Evansville and Terre Haute Railroad Company. From a judgment for plaintiff defendant appeals. (Transferred from the Appel- late Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>Railroads. — Safety Appliances. — Congressional Action. — The act of Congress relating to the equipment of cars moving on interstate railways with safety appliances (27 U. S. Stat. at Large 531, §8605 et seq. U. S. Oomp. Stat. 1913) so far occupies the field of legislation as to supersede and invalidate §5278 et seq. Burns 1914, Acts 1907 p. 186, relating to safety appliances on cars used in trafiic within the State. (Opinion in Southern R. Co. v. Railroad Com, etc. [1913], 179 Ind. 23, superseded.)</p>

<p>1. AppeaiReview. — Moot Questions. — Dismissal^-^Whem it is made to appear that after the judgment from'' which the appeal was taken, the real estate which was thgr subject of litigation was sold on decree in satisfaction of lieps' superior to the claims of the parties to the appeal, that they /(vere parties to the proceeding in which the decree was rendered, that the proceeds of the sale were apiplied in satisfaction of the decree, and that the period for redemption haá expired and deed issued to the purchaser, etc., the appeal must be dismissed as presenting merely a moot question, p. 583.</p> <p>2. Appeal.— Moot Questions.— Determination.— In determining whether an appeal presents merely a moot question, the court may receive proof or take notice of facts appearing outside che record, p. 584.</p> <p>3. Appeal. — Moot Questions. — Disposition of Cause. — Costs.—The court is not justified in passing upon questions that have become moot for the sole purpose of determining the liability for costs, p. 5S-1.</p>

<p>From St. Joseph Superior Court; Shepard J. Grumpaoker, Special Judge.</p> <p>Action by F. J. Lewis Meyer against John W. Talbot. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

Prom Lawrence Circuit Court; Oren O. Swails, Judge. Proceedings by the Southern Indiana Power Company to assess the damages to John W. Monical through the appropriation of the latter’s land for flowage from a dam. Prom the judgment rendered, the Southern Indiana Power Company appeals.

From Lake Circuit Court; Lincoln V. Cravens, Special Judge. Action by Louis A. Brjmn and others against William Moerecke, in which the latter filed cross-complaint against the plaintiffs. From an adverse judgment, the cross-complainant appeals.

<p>1. Evidence. — Extradition Papers. — Denial of Execution. — Section 370 Burns 1914, §364 R. S. 1881, requiring a party pleading a written instrument to prove its execution where the same is denied under the oath of his adversary, has no application to a requisition for the arrest and return of a fugitive from justice, or to the warrant of the Governor issued pursuant to such requisition, p. 603.</p> <p>2. Extradition.- — Recitals in Warrant. — Surplusage.—The recital in a warrant issued bytlie Governor in compliance with a requisition for the arrest and return of a fugitive from another state, of the date of the enactment of the statute under which the Governor purported to act was superfluous, so that error in that respect did not render the warrant void. p. G04.</p> <p>3. Statutes.— Repeal. — Reenactment.— A later enactment which is the substantial equivalent of a prior one, in effect continues the prior act in force instead of repealing it. p. 604.</p> <p>4. Habeas Corpus. — Scope of Inquiry. — Extradition Proceedings.— In a habeas corpus proceeding by a person under arrest pursuant to a requisition for his arrest and return to another state, the court can not consider the sufficiency of the indictment set out in the Governor’s warrant from the standpoint of testing its sufficiency on a motion to quash, but if it is reasonably possible that the facts set out in such warrant would constitute the crime with which the accused is charged, further inquiry as to the sufficiency of the indictment is precluded, p. 605.</p> <p>5. Habeas Corpus.— Extradition Proceedings.— Evidence.— While it is competent, in a habeas corpus proceeding, to avoid extradition under a requisition for the arrest and return of the accused to another state, for accused to show that he is not a fugitive from justice, where the presence of accused in the demanding state at the time of the commission of the alleged crime, and his subsequent leaving, is admitted, evidence as to his motive in leaving or as to knowledge of such leaving without obj'ection by the authorities of such demanding state, is immaterial, p. 606.</p> <p>6. Courts.— Rules of Decision.— United States Supreme Court.— State courts are bound by the decisions of the Supreme Court of the United States in construing the constitutional provision and the act of Congress relative to the extradition of fugitives from justice, p. 606.</p> <p>7. Extradition.— Proceedings on Requisition.— Delay in Delivering. — Payment of Costs. — A requisition on the Governor of this State for the return of a fugitive to another state is not rendered void either by long delay on the part of the agent of the demanding state in presenting it to the Governor, or because the attorneys for such agent were employed and paid by the prosecuting witness- and made the manual delivery of the requisition to the Governor in such agent’s stead, p. 606.</p> <p>8. Habeas Corpus. — Extradition Proceedings. — Discretion of Governor. — In a habeas corptts proceeding brought to contest the delivery of an alleged fugitive under a requisition for his return to another state, the question of whether the Governor might properly have considered the facts of long delay in presenting the requisition and that its manual delivery to him was made by an attorney for the agent of the demanding state, employed and paid by the prosecuting witness, is not a matter for determination by the court, p. 607,</p> <p>9. Habeas Cobpds. — Extradition Proceedings. — Evidence.—Motives of Officials. — Purpose of Prosecution. — In a habeas corpus proceeding to contest the delivery of a fugitive under a requisition for his return to another state, evidence is inadmissible which is offered either to impeach the motives or good faith of the governor of either this or the demanding state, to show that the person at whose instance the indictment was procured was actuated by malice, or to show the guilt or innocence of the accused. ■ p. 607.</p> <p>10. Extbadition. — Papers. — Interlineations. — Where interlineations appeared on the certificates and papers annexed to a requisition for the arrest and return of a fugitive to another state, it must be presumed, in the absence of evidence to the contrary, that they were made either before or contemporaneously’' with the execution of such papers, p. 610.</p>

<p>From Elkhart Superior Court; James L. Harmon, Judge.</p> <p>Action by William Iloerger against The Sidway Mercantile Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Jackson Circuit Court; Oren O. Swails, Judge. Action by Charles M. Huskins against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Bums 1914, Acts 1901 p. 590.)

<p>From Jackson Circuit Court; Oren O. Swails, Judge.</p> <p>Prosecution by tbe State of Indiana against "William Connors. From a judgment of conviction, tbe defendant appeals.</p>

<p>Prom Criminal Court of Marion County (43,110); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Thomas Dorak. Prom a judgment of conviction, the defendant appeals.</p>

<p>From Clark Circuit Court; Harry G. Montgomery, Judge.</p> <p>Action by Carl Dustman against Michael Switow. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590. )</p>

Prom Sullivan Circuit Court; William H. Bridwell, Judge. Action by Lee R. Kelley against John C. York and another. Prom the judgment rendered, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Superior Court of Vanderburgh. County; F. M. Hostetter, Judge. Action by Walter S. Williams against the Evansville and Southern Indiana Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Apts 1901 p. 590.)

<p>1. Criminal Law. — Witnesses.—Impeachment.—In a prosecution for murder where one of the witnesses of the assault on cross-examination denied that at an examination before the chief of police and in the presence of other officers, she had told that she knew who hit decedent and had identified another man as the one who committed the crime, the action of the court in sustaining an objection to a question asking the chief of detectives, who testified that he was present at such examination, whether on that occasion a certain man had not been brought before the chief of police and identified by the prior witness as the one who- committed the crime, on the ground that no proper foundation had been laid for the question by asking the prior witness if the latter was one of the officers present at such examination, was error, since the offered evidence was' relevant, and to make it admissible it was not necessary to name the detective in the impeaching question as one of the officers present, pp. 639,640.</p> <p>2. Appeal.. — Record.—Bill of Exceptions. — Objections.—An objection that “no question concerning the evidence is presented, for the reason that the bill of exceptions is not properly in the record” and that “it is not properly certified by the clerk”, is not sufficiently specific to require the court to examine the clerk’s certificate, p. 640.</p>

Prom Hancock Circuit Court; Earl Sample, Judge. Action in mandamus by the State of Indiana, on the relation of Ora Myers, against David H. Ellis, Treasurer of the City of Greenfield. Prom a judgment for relator, the defendant appeals.

<p>From Allen Circuit Court; J. W. Eggeman, Judge. ■</p> <p>Action by Melvina Older against George Young. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Posey Circuit Court; Merdis F. Clements, Judge. Action by the State of Indiana, on the relation of Ida Huff and others, against James White and another. From a judgment for plaintiffs, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

Prom Morgan Circuit Court; Nathan A. Whitaker, Judge. Action by Joseph Slinginger against Thomas J. Christie and another. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>Ar-BEAt.— Questions RevieioaWe.— Briefs.— Where the error assigned is the ruling on the demurrer to appellant’s complaint, appellant’s brief, which neither contains the complaint or its substance, nor states any point and authority in support thereof, is insufficient to invoke consideration of the error assigned.</p>

<p>Prom Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ira Medly. Prom a judgment of conviction, the defendant appeals.</p>

<p>Prom Superior Court of Marion County (83,441); John J. Rochford, Judge.</p> <p>Action by William S. Ryan against the Board of Commissioners of the County of Marion. Prom a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Pike Circuit Court; John L. Bretz, Judge. Action between Thomas H. French and another, and Thomas Harvey and another. From the judgment rendered, Harvey and another appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Superior Court of Marion County (87,853) ; Charles J. Orbison, Judge. Action by Alice Norton and others against the Union Traction Company of Indiana and others. From a judgment for defendants, the plaintiffs appeal.

From Marion Circuit Court (21,121); Charles Bemster, Judge. Action by Alexander W. Thomson and another against the Indiana Union Traction Company and others. From a judgment lor deiendants, the plaintiffs appeal.

Prom Howard Circuit Court; J. F. Morrison, Special Judge. Action by Alpheus L. Mendenhall and another against The Farmers Insurance Company of Kokomo, Indiana. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Criminal Law. — Plea in Abatement. — Scandalous Matter.— Striking Out Plea. — Where defendant in a criminal prosecution filed a plea in abatement embracing 123 closely typewritten pages, composed almost entirely of immaterial, redundant and impertinent matter, much of which was scandalous, and the material facts of which could have been stated within the scope of two or three typewritten pages, there was no error in sustaining a motion to strike out the whole pleading, pp. 700, 702.</p> <p>2. Pleading. — Motion to Strike. — Scandalous Matter. — While it is the general rule that a motion to strike out improper and scandalous matter should be directed only to the allegations containing the improper matter, where such allegations can be eliminated leaving such a connected statement of. material facts as constitutes a sufficient pleading, or which is capable of being so amended as to make it sufficient, a different rule prevails where the scandalous and impertinent matter predominates and is so mingled and blended with that which is pertinent and proper as to render the separation unpracticable or extremely difficult, and in such case the entire pleading may be struck from the files, p. 701.</p> <p>3. Pleading. — Scandalous Matter. — Pertinent allegations, even if false, can not be scandalous; but if they are impertinent and reflect on character or contain criminations, they are scandalous whether true or false, p. 702.</p> <p>4. Elections.— Offenses.— Removal of Ballots.— Indictment.— An indictment charging that defendant was the election inspector for a certain precinct and as such had in his possession a number of ballots to be used in such precinct for voting at the election, and that while having such ballots in his possession and custody he unlawfully, feloniously and knowingly permitted a certain number of such ballots to be unlawfully and feloniously taken and removed from his possession and custody as election official, to which taking and removing he then and there unlawfully, feloniously and knowingly consented, sufficiently charged a violation of §6914 Burns 1914, Acts 1899 p. 157, §32. p. 702.</p> <p>5. Indictment. — Sufficiency to Sustain Conviction. — Statutory Offense. — An indictment which' properly charges an offense under a statute of the State is sufficient to sustain a conviction under such statute, although the prosecuting attorney may have supposed that the offense was covered by a different statute, p. 703.</p> <p>6. Indictment. — Venue.—Judicial Notice. — An indictment charging that the offense was committed in the city of Terre Haute, Indiana, sufficiently stated the venue, and the court takes judicial notice that the city of Terre Haute is in Vigo County, p. 703.</p> <p>7. Indictment. — Requisites.—Signature.—An indictment will not be deemed defective on appeal because signed by a special prosecuting attorney who had the matter in hand, instead of by the regularly elected prosecuting attorney, since the appointment of a special prosecuting attorney is authorized by statute when the prosecuting attorney fails to attend the court, .and such appointee during the absence of the prosecuting attorney, possesses full power to perform all his duties, and in the absence of any showing to the contrary it must be presumed that the appointment was in compliance with the statute, p. 703.</p>

<p>From Jackson Circuit Court; Joseph 3. Shea, Judge.</p> <p>Action by Raura R. Moore and others against Mary Schepman and others. From a judgment for defendants, the plaintiffs appeal.</p>

From Wells Circuit Court; William H. FAchhorn, Judge. Action by Charles H. Plessinger, Receiver of the partnership of Williamson and Baker, against Willard C. Baker and another. From a judgment for defendants, the iilaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)