Volume 186 — Indiana Reports

<p>From Rush Circuit Court; Will M. Sparks, Judge.</p> <p>Action by the City of Rushville against Louis Heyneman. From a judgment for defendant, the plaintiff appeals.</p>

<p>From Lawrence Circuit Court; Oren O. Swails, Judge.</p> <p>Prosecution by the State of Indiana against John Meno and others. From a judgment of conviction, the, defendants appeal.</p>

<p>1. Statutes. — Construction.—-Intent of Legislature. — Aids.—In construing a statute, the court will seek to discover and carry out the legislative intent, and in searching for it the court will look to every-part of the statute under consideration, to the circumstances under which it was enacted, to the old law, if any, on the subject, to other statutes upon the same subject or relative subjects, whether in force or repealed, to contemporaneous legislative history and to the evils and mischiefs to be remedied. . p. 13.</p> <p>2. Statutes. — Construction.—Statutory Proceedings. — Rules of Practice. — Civil Code. — Where a proceeding is a special statutory one, and the statute does not provide any method of procedure to be followed, the general rules of practice in civil actions are applicable, p. 13.</p> <p>3. Municipal Corporations. — Improvements.-—Drains.—Reference of Appeals to Reviewers. — Statute.—In a proceeding by a city to improve an open drain under §8729 Burns 1914, Acts 1909 p. 238, providing for the appointment by the circuit court of a board of assessors to make an assessment roll showing the benefits to lands affected and a-roll awarding damages to lands injured by the proposed improvement, and that appeals from such board’s assessment may be made to the circuit, court within fifteen days from the time such assessment rolls are filed to be conducted as other appeals, the circuit court committed error. in sustaining the city’s motion to refer the appeals to three disinterested reviewers and in overruling appellant’s various motions to. submit the appeals to the court for hearing and to strikd out the report of the reviewers, p. 13.</p> <p>4. Municipal Corporations. — Public Improvements. — Drains.— Assessments. — Statute.—“Property.”—“Property” as used in §8729 Burns 1914, Acts 1909 p. 238, authorizing cities under certain conditions t9 construct or change any watercourse, drain and sewer, and providing for the payment for the improvement by making assessments against property benefited, means real property as distinguished from personal property, p. 13.</p> <p>5. Municipal Coepoeations. — Public Improvements. — Drain.— Property Assessable. — Interurban Railroad’s Right of Way.— Statute. — A company owning and operating an interurban railroad in the streets of a city does not hold any easement or interest in the land upon which the tracks are located, the permission of the city giving the right to use the streets being a part of the public easement, so that the city, and not the railroad company, is assessable for the benefits accruing to the public easement in the street from the improvement of an open drain under §8729 Burns 1914, Acts 1909 p. 238, there being no showing that the railroad’s franchise provided that it should pay any portion of the benefits to the public easement or that the railroad company’s right of way was a private one. (Marion, etc., Traction Co. V. Simmons [1913], 180 Ind. 289, distinguished.) pp. 13,15.</p> <p>6. Municipal Coepoeations. — Public Improvements. — Streets.— Property Assessable. — Railroad’s Right of Way. — A railroad company’s right of way abutting upon a street is subject to assessments for the improvement of 'such street, p. 14.</p> <p>7. Baileoads. — Interurban.—Use of Streets. — Additional Burden. < — Eminent Domain. — The use of a street by an interurban railroad does not constitute an additional burden or servitude upon the lands of frontagers, p. 14.</p>

From Washington Circuit Court; William H. Paynter, Judge. Action by the State of Indiana, on the relation of Peter M. Hamilton, against Elza V. Bartlett, trustee, etc.' From a judgment for relator, the defendant appeals.

<p>1. Appeal. — Vacation.—Parties.—Notice.—In a vacation appeal the -party appealing must make all his coparties to the judgment coappellants and give them proper notice of the appeal, p. 24.</p> <p>2. Wills. — Establishment.—Action to Resist Probate. — Appeal. —Parties.—In a vacation appeal from a judgment in an action to resist the probate' of a will, the party appealing need not join decedent’s sister as a coappellant, where she was not beneficially interested in the will, did not object to its probate and was not a party bélow nor required to be under §3154 Burns 1914, providing- that in any action to resist the probate of a will the executor and all other persons beneficially interested shall be made defendants, p. 24.</p> <p>8. Appeal. — Notice of Appeal. — Mistake in Name. — Idem Sonans. — The publication of a notice of appeal to Harley Tout wherein the name apiieared as Harley Trout was sufficient, since the names are so similar in sound as to be regarded as idem sonans. p. 24.</p> <p>4. Appeal — Pa/rties.-—-Infants.—Guardian Ad Litem. — Where, in an action to resist the probate of a will, infant parties were served with notice of the appeal and were named as appellees, it was unnecessary to- serve their guardian ad litem with notice or to make him an appellee, p. 25.</p> <p>5. Wills.- — -Establishment.—Action to Resist Probate.- — Verification of Objections. — Waiver.—Where the objections to the probate of a will were not verified as required by §3154 Burns 1914, Acts 1911 p. 325, but no objection was made thereto for want of verification until after the proponents of the will had introduced their evidence and the objectors offered evidence to support the objections, the court should have treated the defect as waived, since it was not jurisdictional, or permitted the filing of tendered verified objections, p. 25.</p> <p>6. Wills. — Action to Resist Probate. — Pleadings.—Allegations. —Sufficiency.-—-Statute.—Where objections to the probate of a will are filed in the circuit court under §3154 Burns 1914, Acts 1911 p. 354, it is not necessary to allege that they are not filed for vexation or delay, such allegations being- necessary only when objections are filed with the clerk under §3153 Burns 1914, §2595 R. S. 1881, to obtain a continuance until the succeeding term of court, p. 27.</p> <p>7. Names. — Idem Sonans. — The phonetic spelling of two names need not be exactly identical to constitute them idem sonans. p. 28.</p>

<p>Appeal. — Briefs. — Sufficiency. — Dismissal. — Where appellant’s brief, in an appeal in a highway proceeding, contains only a narrative statement of the proceedings before the board of county commissioners and the circuit court and an argument discussing certain rulings, but the errors relied on for reversal are not set out, no attempt is made to state the record or its substance, and no points and authorities are submitted in support of appellant’s contention, such brief waives the questions suggested . for failure to comply with the rules governing the preparation of briefs, and a dismissal of the appeal is required.</p>

<p>From Lake Circuit Court; W. C. McMahan, Judge.</p> <p>Drainage proceeding on the petition of John Brown and others. From a judgment for the petitioners, the Lake Agricultural Company and others appeal.</p>

<p>From Washington Circuit Court; William H. Paynter, Judge.</p> <p>Action by John. Milton.Hinds against Jennie Voyles and others. From a judgment .for plaintiff, the defendants appeal.</p>

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by- Emma S. Renner against Sarah C. Hanna and others. From a judgment for defendants, the plaintiff appeals.</p>

From St. Joseph. Circuit Court; Walter A. Funk, Judge. Action by George A. Thomas and others against Etta K. Heddon and others. From a judgment for defendants, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Mary J. Johnson and others against Mary Samuels and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>1. Appeal. — Judgments Appealable. — Construction of Statute.— Under'§1391 Burns 1914, Acts 1901 p. 566, relating to appeals to the Supreme Court, the Supreme Court has jurisdiction in an appeal from a judgment amounting to less than $50 where the construction of a statute is involved, p. 68.</p> <p>2. Highways. — Proceedings to Establish. — Report 'of Viewers.— Land Acquired. — Engineer’s Notation on Profile. — Statute.— Under §7177 Burns 1914, Acts 1905 p. 521, 552, providing that the road viewers and surveyor shall prepare and file in the office of the auditor a report containing complete plans and specifications of a proposed highway which shall be accompanied by an accurate profile thereof made by the engineer, and under §7718 Burns 1914, Acts 1905 p. 521, 523, providing that the report of the viewers shall remain on file ten days during which interested parties may examine it and that during such time the viewers shall assess such damages as shall be justly due any infant or person under disability and to any other person or corporation making written claim therefor, on ♦ account of the appropriation of, .or injury to, his property by the establishment or improvement of any highway as prescribed in such report and that no damages shall be recovered by any person other than an infant, idiot, or person of unsound mind unless claim therefor shall have been made prior to the filing by the viewers of a supplemental report setting forth the damages allowed, together with a description of the property in each case on account of which such damages were allowed, a party interested would be required only to examine the report of the viewers to determine whether there was a declaration of intention to appropriate any part of his land, and a notation endorsed on the profile prepared by the engineer that additional land was to be appropriated would not be notice thereof, since it was the intention of the legislature that lands taken, as authorized by the statutes, should be sufficiently described in the report to enable a landowner to determine what specific part of his lands was to be taken, so that he might file a claim for damages therefor as provided by the statute, p. 70.</p> <p>3. Highways. — Proceedings to Establish. — Acquisition of Land. —Notation on Profile. — Sufficiency.—Where, in a proceeding to establish a highway under §7711 et seq. Burns 1914, Acts 1913 p. 914, there was endorsed on the profile, prepared by the engineer as required by §7718 Burns 1914, Acts 1905 p. 521, 553, a notation that at all places where it was necessary to go outside the line of the road to get dirt for embankments, it should be taken from a strip of ground of a specified width' on either side of the embankment, and that the dirt for such purpose was thereby condemned, the memorandum was too indefinite to constitute notice to any one of an intention to appropriate any part of his lands for the proposed improvement, as it would require the services of an engineer to ascertain what lands would be affected by the removal of dirt. p. 72.</p>

<p>1. Judgment.- — ■ Conclusiveness.— Matters .Determined.— Where, in a proceeding to establish a drain, a railway company’s remonstrance expressly challenged the right of the circuit court to require the railroad at its own expense to construct a bridge as recommended by the report of the drainage commissioners, and the judgment rendered by the court ordering the establishment of the drain and the building of the bridge by the company was affirmed on appeal, the railway is bound by the order to construct the bridge, p. 77.</p> <p>2. Drains.- — Proceedings to Establish. — Jurisdiction of Court.— Supplementary Orders. — Although a judgment establishing a drain and ordering its construction was final in character and terminated the adversary proceedings, the action thereafter remained on the court docket for the purpose of carrying such judgment into effect and to that extent .the circuit court retained original jurisdiction over the subject-matter, and where a remonstrant which failed to construct a bridge as ordered voluntarily appeared to contest a petition requiring obedience to the order, it could not question the jurisdiction of the court, since the petition was not an original action nor one for man- ■ damus, but merely sought a supplemental order to enable the court to carry into effect its judgment, p. 77.</p> <p>3. Drains. — Proceedings to Establish. — Authority of Superintendent. — Application for Supplementary Order. — In a drainage proceeding, where the court rendered a judgment establishing a drain and ordering a railway company to construct a bridge to allow drainage water to pass under its tracks and the railroad failed to comply with such.order, the superintendent of construction had the right to apply to the court which established the drain for a supplemental order requiring the construction of the bridge within a specified time. p. 78.</p> <p>4. Drains. — Proceedings to Establish. — Application for Supplementary Order. — Defenses.—Striking Out Answer.- — -Harmless Error. — Where, in a drainage proceeding, a railroad company failed to construct a bridge over the drain as ordered by the court and the construction superintendent petitioned for an order requiring compliance with the judgment, paragraphs of answer alleging that the drain had not been completed up to the railroad company’s right of way, that it could not be so constructed without the making of an additional assessment against property owners benefited by the improvement, and that the company was willing to build the bridge whenever it became necessary, do not state a defense to the petition, and, even though proof of such facts might affect the terms and conditions • of the court’s order, error, if any, in striking out such answer was harmless where the facts alleged therein, were provable under the answer of general denial on file in the cause, pp. 78, 79. ■</p> <p>5. Pleading.— Answer.— Striking Out.— Review.— Reversal. — ' While a motion to strike out will not perform the office of a demurrer for want of sufficient facts, yet if a pleading is so clearly bad that it cannot be amended, or if, in the case of an answer or reply, it amounts only to a general denial, a judgment will not be reversed on account of the irregular procedure in sustaining such a motion, p. 79.</p> <p>6. Drains. — Proceedings to Establish. — Petition for Supplementary Order. — Answers.—Sufficiency.—Motion to Strike Out. —Where, in a drainage proceeding, the construction superintendent petitioned the court for an order to compel a railroad company to construct a bridge over a drain as ordered by the court’s original judgment, answers interposing a defense that the drain had not been completed to the defendant’s right of way and that it could not be so constructed without making additional assessments, do not allege facts constituting a bar to the relief sought by the petition, as the drainage law does not determine the order in which the several sections of a proposed drain shall be constructed and does authorize the collection of additional assessments when necessary to complete the work as judicially established; and, since the facts alleged do not constitute a defense to the petition but present only matters of fact for the consideration of the court in fixing the terms of its decree, proof of such facts were admissible under the answer of general denial, p. 80.</p> <p>7. Appeal.- — Review.—Evidence.—Presumptions.—On an appeal from a judgment rendered in a proceeding to compel a railroad company to construct a bridge over a drain, the appellate court must presume that proper steps will be taken to finish the drain as ordered and cannot pass on issues of fact presented by a defense that the drain had not been completed to a point where a bridge was necessary to permit the passage of drainage waters under the railroad’s right of way. p. 81.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by the Baltimore and Ohio and Chicago Railroad Company against Matt. J. Brown, treasurer. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (102,762); V. G. Clifford, Judge.</p> <p>Action by the Illinois Central Railroad Company against Michael E. Howard. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Record.—Amendment.—Motion to Dismiss. — Where appellants have, by leave of court, properly amended their assignment of errors and the index to the transcript after the filing of a motion by appellee to dismiss the appeal, the motion to dismiss must be overruled, p. 95.</p> <p>2. Appeal.- — Proceedings for Review. — Transcript.—Praecipe.— Where there is a general praecipe, which includes the judgment and is followed by special directions as to certain papers and entries, the latter will be controlled by the general praecipe, unless in conflict therewith, so that the failure to include the judgment in the special directions will not affect the appeal, p. 95.</p> <p>3. Appeal. — Record.—Conflict.—Recital in Bond. — On an appeal to the circuit court from the board of commissioners, an express provision of the bond which shows an appeal from a judgment “establishing the drain and confirming the assessments,” is sufficient to overcome the ambiguity arising from a clerical error dating the judgmentesubsequent to the date of the appeal.' p. 96.</p> <p>4. Appeal. — Assignment of Errors. — Joint or Separate Assignments. — Where a particular motion or pleading is joined in by two or more persons in identically the same right or interest, it is either joint or several or both, and if there is one action or ruling which affects all alike, the exceptions thereto and the assignments based thereon may he either joint or several, or both, and, on appeal, the motion or pleading, the exceptions and the assignment of.errors will be construed in harmony as to their form, unless such construction is clearly incompatible with the record, p. 96.</p> <p>5. Drains. — Proceedings to Establish. — Filing Remonstrance.— Time. — Under §6143 Burns 1914, Acts 1907 p. 508, 515, providing that the filing of a remonstrance to the report of the drainage commissioners in the office of the clerk of the circuit court shall be a sufficient filing thereof, whether in term time or vaca- ' tion, when construed with §6151 Burns 1914, Acts 1907 p. 508, 532, relating to the proceedings for the establishment of a drain on petition to the board of county commissioners, when the drainage proceeding is instituted before the board of commissioners and a remonstrance is properly filed with the county auditor within the time allowed by law, but is not actually presented to the board until after the statutory period for remonstrating has expired, the issues presented thereby must be heard and determined, and it is error to strike out such .remonstrance, p. 97.</p> <p>6. Appeal. — Review.—Waiver of Error. — Cross-errors assigned by appellee are waived by failure to brief them: p. 97.</p>

From Allen Circuit Court; John W. Eggeman, Judge. Action by Franklin P. Wilt and others against J. Herman Bueter, treasurer of the county of Allen, anc? others. - From a judgment for defendants, the plain-, tiffs appeal.

From Wells .Circuit Court; William H. Eichhorn, Judge. Action by Minnie E. Mauger, administratrix of the estate of John W. Mauger, deceased, against. John C. Curtis, receiver. From a judgment for plaintiff, the defendant appeals.

<p>1. Insurance. — Accident Insurance. — Accidental Death. — Death from Ptomaine Poisoning. — Death resulting from eating mushrooms tainted with ptomaine poisoning is death from accidental means and an insurance company is liable in such a case, under an accident policy indemnifying “against loss resulting directly and independently of any and all other causes from bodily injury effected solely through external, violent, and accidental means.” p. 127.</p> <p>2. Appeal. — Questions Reviewable. — Briefs.—Error in sustaining a demurrer is waived by failure of appellant to comply with Rule 22 of the Supreme Court in the preparation of its brief, p. 132.</p>

<p>1. Highways. — Proceedings to Establish. — Appeal to Circuit Court. — Time.—Under §3 of the act of 1915, Acts 1915 p. 644, 646, relating to appeals allowed under the gravel road law, an appeal to the circuit court from an order of the board of county commissioners establishing a free gravel road less than three miles in length must be taken and the bond filed within ten days from the time such order is finally made, appeals in such cases not being governed either by §6021 Burns 1914, §5772 R. S. 1881 or by §7793 Burns 1914, Acts 1905 p. 521, 579, on the subject of appeals to the circuit court from decisions of the board of county commissioners, p. 134.</p> <p>2. Highways. — Proceedings to Establish. — Appeal to Circuit Court. — Questions Presented.- — -On an appeal to the circuit court from an order of the board of county commissioners establishing a free gravel road less than three miles in length on a bond filed the day following the letting of the contract and after the expiration of the time for appealing from such an order, no question is presented to the circuit court as to the letting of the contract where such issue was not raised in the proceedings had before the board, p. 135.</p>

<p>1. Trial. — Instructions.—Consideration of Evidence. — In determining any material question in issue the jury has the right to consider all of the evidence pertinent thereto, whether introduced by the party having the burden of such issue or by his opponent, and an instruction which limits the jury to a consideration of the evidence introduced by the party having the burden of the issue to the exclusion of other evidence is erroneous. p. 137.</p> <p>2. Appeal . — Review.—Instructions.—Harmless Error. — In an employe’s action for injuries received while operating a saw, liability being predicated on the failure to have the saw properly guarded in compliance with §8029 Burns 1914, Acts 1899 p. 231, 234, where there was nothing contained in defendant’s evidence tending to support plaintiff on the issue whether the saw could have been guarded without destroying its sufficiency for the purpose for which it was used at the time of the injury, error in an instruction excluding defendant’s evidence from the consideration of the jury was harmless, p. 138.</p>

<p>From Clay Circuit Court; John M. Rawley, Judge.</p> <p>Prosecution by the State of Indiana against James Howe. From a judgment of conviction, the defendant appeals.</p>

From Marion Superior Court (88,044) ; Clarence E. Weir, Judge. Action by the Vehicle Apron and Hood Company against the Guarantee Tire and Rubber Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Municipal Corporations. — Injury to Pedestrian. — Statute.— Section 8962 Burns 1914, Acts .1907 p. 249, requiring that a written notice containing a brief description of the time, place, cause and nature of the injury be given to the city within sixty days thereafter as a condition precedent to maintaining an action for damages, applies only to such actions when the injury to person or property results from any defect in the condition of any bridge, street, alley or highway, but does not apply in a case where the injury resulted directly from the negligence . of the city’s agent in failing to use due care in the manner in which he raised a bridge, p. 154.</p> <p>2. Negligence. — Contributory. — Complaint. — Negativing Defenses. — A complaint for negligence is not required to negative contributory negligence under §362 Burns 1914, Acts 1899 p. 58, making contributory negligence in personal injury cases wholly a matter of defense, and a complaint is sufficient in that respect unless the facts stated therein affirmatively disclose such a defense, p. 155.</p> <p>3. Municipal Corporations. — Injury to Pedestrian. — Action.— Complaint. — Agency of City. — In an action against a city for injuries resulting from alleged negligence in raising a public bridge on which plaintiff was traveling, a complaint alleging that the city exclusively operated and controlled the opening and closing of the bridge and employed an operator to operate it and to keep off travelers when it was about to be raised, and that the operator saw and knew that plaintiff was about to enter the bridge, but failed in the performance of his duty, sufficiently alleges that the operator was acting as the agent of the city at the time of the injury, p. 155.</p> <p>4. Municipal Corporations. — Negligence of Agent. — Injury to Pedestrian.- — -Liability.—One employed by a city to operate a public bridge is an agent of the city, discharging corporate duties, and the city is liable for his acts of negligence performed in the discharge of such duties, p. 156.</p> <p>5. Bridges. — Control by City. — Injury to Pedestrian. — Liability. ■ — In an action against a city for injuries to a pedestrian resulting from the alleged negligence of the city in raising a bridge while he was upon it, the purpose of plaintiff in going over the bridge could not affect his right to recover where it appears that he was a member of the public .in a proper use of a public bridge within the city limits, and the fact that he was not crossing the bridge to go to a city park to which it led is immaterial, p. 157.</p> <p>6. Negligence. — Contributory.—Verdict for Plaintiff. — Scope.— In an action against a city for personal injuries, a general verdict for plaintiff was a finding against the city on the issue of contributory negligence, p. 157.</p> <p>7. Negligence. — Contributory.—Burden of Proof. — Sufficiency of - Evidence. — In an action against a city for personal injuries alleged to have resulted to plaintiff from the negligent operation of a public bridge, the burden on the issue of contributory negligence was on the defendant, and the court on appeal cannot find that the evidence is insufficient to sustain a verdict against defendant on such issue, unless it appears that the evidence without dispute shows a state of facts from which the court could say as a matter of law that plaintiff was guilty of negligence, p. 157.</p> <p>8. Appeal. — Review.—Evidence.—Jury Question. — Contributory Negligence. — Verdict.—Conclusiveness.—In an action against a city for personal injuries resulting to plaintiff from jumping off a bridge, alleged to have been negligently raised while he was on it, where there was evidence that a warning bell was sounded before the bridge was raised and that bystanders called a warning to plaintiff as he was about to enter the bridge, but plaintiff, who was partially deaf, denied that he heard such warnings, or that, although he looked, he saw a boat approaching for the purpose of passing, making necessary the elevation of the bridge, the question of contributory negligence was for the jury, and, the verdict having determined under the evidence that plaintiff was not guilty of negligence, the court on appeal cannot disturb such finding, p. 157.</p> <p>9. Bridges. — Injury to Pedestrian.- — -Liability of City. — In an action against a city for personal injuries sustained by plaintiff while crossing a public bridge leading to a municipal park, where the evidence shows that the plaintiff was going fishing at the time and was not on his way to the park for pleasure and amusement, his rights could not be enlarged or affected by the fact that the city had granted concessions for the operation of places of amusement in the park and was deriving a revenue on that account, p. 158.</p> <p>10. Appeal.— Review.— Evidence.— Objections.— Statement of Grounds. — An objection to evidence on the ground that it is immaterial or irrelevant presents no question for review, p. 158.</p> <p>11. Appeal. — Review.—Evidence.—-Objections.—Scope of Review. —In the review of objections to evidence, the court on appeal can consider only those grounds of objection which were presented in the trial court, p. 159.</p> <p>12. Appeal. — Review.—Instructions.—Applicability to Evidence. —In an action for personal injuries, where there was evidence that plaintiff had incurred a certain bill at the hospital to which he was confined, an instruction that the jury might, in determining the award of damages, consider plaintiff’s expenses occasioned by the injury, for nurses and hospital charges, was not objectionable as being inapplicable to the evidence, even in the absence of testimony showing that he actually had expended money for the services of a nurse or that he had such services, since it might be presumed that part of the amount paid to the hospital was for nursing, p. 159.</p> <p>13. Negligence. — Instructions.—Last Clear Chance. — In an action against a city for personal injuries resulting to plaintiff ■ from alleged negligence in raising a bridge upon which he was traveling, an instruction that, if there were time, in the exercise of ordinary care, after seeing plaintiff’s position, for the bridge tender to have stopped and lowered the bridge, and he failed to exercise such care, but continued to raise the bridge, the jury might find the defendant guilty of negligence, was not an attempt to apply the doctrine of last clear chance and was not, therefore, objectionable as being an inaccurate statement of the law in that respect, as the instruction merely informed the jury that, if the operator failed to use reasonable care to observe the presence of the plaintiff on the bridge and started to raise it while plaintiff was crossing, the jury might find defendant guilty of negligence- and was a correct statement of the law as far as it went. p. 160.</p> <p>14. Negligence. — Last Clear Chance. — Applicability.—The last clear chance doctrine has no place in the law except as it bears upon and affects the law on the subject of contributory negligence, p. 160.</p> <p>15. Bridges. — Injuries to Pedestrian. — Action for. — Instruction. —Warning.—In an action for injuries resulting to plaintiff from the raising of a city bridge while he was on it, an instruction that, if plaintiff was deaf, the bridge tender, if knowing such fact, must have used such care as was necessary under the circumstances to warn plaintiff that the bridge was about to be raised, was not reversible error, although it would have been more accurate if the word “reasonably” had been inserted before the word “necessary.” p. 161.</p> <p>16. Appeal. — Review.—Instructions.—Contributory Negligence. —Acts in Emergency. — In an action against a city for personal injuries resulting to plaintiff from jumping off of a bridge which was raised while he was on it, an instruction that a person is not responsible for his acts done under sudden peril or while in imminent danger, caused by the negligence of another, and, even though plaintiff might have escaped injury, in trying to get off the bridge, by returning by the way he had entered, instead of running across the bridge and jumping from the end that was being raised, he was not responsible for his acts done under sudden peril or imminent danger caused by defendant’s negligence, invaded the province of the jury by stating, as a matter of law, that a person is not responsible for his acts when confronted by a sudden peril or imminent danger caused by the negligence of another, since it was for the jury to determine, as a question of fact, in such a case whether plaintiff acted in the emergency as ordinary prudence required, taking into consideration the nature of the threatened .danger and the extent to which his judgment was affected by fear (Clarke v. Pennsylvania Company [1892], 132 Ind. 199, distinguished). pp. 162, 163.</p> <p>17. Negligence. — Contributory Negligence. — Sudden Peril.— Contributory negligence should not be imputed to one by reason of any act in attempting to escapé a threatened danger if his mind is deprived of all judgment and discretion on account of a reasonable fear occasioned by a danger' to which he is exposed by the negligence of another and the act in question is occasioned by such want of judgment, p. 163.</p> <p>18. Appeal. — Review.—Erroneous Instruction. — Sudden Peril.— Reversal. — In an action for personal injuries sustained by plaintiff in jumping off a bridge negligently raised while traveling on it, the giving of an instruction inyading the province of the jury by taking from it the question of plaintiff’s responsibility for his conduct when confronted by a sudden peril occasioned by defendant’s negligence and whether he acted as ordinary prudence required under the circumstances, was reversible error, where the evidence does not show plaintiff’s freedom from contributory negligence so clearly and conclusively as to enable the court on appeal to say as a matter of law that the verdict could not have been other than for plaintiff, p. 165.</p> <p>19. Appeal. — Review.—Refusal of Conflicting Instruction. — In an action against a city for injuries sustained by plaintiff by reason of the negligent' raising of a bridge on which he was traveling, an instruction to find for defendant if plaintiff was negligent in entering upon the bridge in an attempt to cross it, was properly refused, as it would have been in conflict with another correct instruction that, if plaintiff’s injury was immediately caused by the bridge tender’s negligence after he became aware of plaintiff’s dangerous situation and by his failure to use ordinary care to avoid injury, plaintiff was entitled to recover, notwithstanding his prior negligence in entering upon the bridge, p. 165.</p>

<p>1. Criminal Law. — Admission of Irrelevant Evidence. — Cure of Error by Subsequent Testimony. — Error in permitting the introduction of evidence irrelevant at the time of admission is not available if such evidence is rendered relevant by evidence subsequently introduced, p. 169.</p> <p>2. Criminal Law. — Reception of Evidence. — Discretion of Court. ■ — Striking Out Irrelevant Evidence. — Exception.-—-Where evidence is offered which is not at the time relevant, it is within the discretion of the trial court to admit it on the condition that it be rendered relevant by other evidence to be. introduced subsequently, and, if such other evidence is not produced, the remedy is a motion to strike the irrelevant testimony from the record and to withdraw it from the consideration of the jury, and, to present for review the court’s ruling on such motion, an exception thereto should be reserved and the ruling brought into the record by assigning it as a ground for a new trial, p. 169.</p> <p>3. Criminal Law. — Appeal.—Weighing Evidence. — Sufficiency. —The court on appeal will not weigh the evidence, and in determining its sufficiency to sustain a conviction will only consider such evidence as tends to support the verdict, p. 169.</p> <p>4 Criminal Law. — Appeal.—Evidence.—Sufficiency.—On an appeal from a conviction, where there is no evidence „ to support a material fact necessary to sustain the verdict, the judgment will be set aside, p. 169.</p> <p>5. Intoxicating Liquors. — Illegal Sale. — Evidence.—Sufficiency. —Statute.—On a prosecution, based on §8351 Burns 1914, Acts 1907 p. 689, for keeping, running and operating a place where intoxicating liquors were kept, sold, bartered and given away in violation of law, evidence showing that there was the accused custodian of a lodge room wherein, on the occasion in question, intoxicating liquors were served members of a club connected with the order, but that the liquors were purchased by a committee, of which defendant was not a member, with funds contributed by those participating, and that such liquors were in the custody and under the control of the committee and not of the accused, is insufficient to sustain a judgment'of conviction. (Givens v. State [1914], 182 Ind. 561; Dressel V. State [1910], 174 Ind. 752; and Kinsley v. State [1915], 184 Ind. 396, distinguished.) pp. 170,172.</p> <p>6. Intoxicating Liquors. — Illegal Sale. — Elements of Offense Evidence. — Statute.—Section 8345 Burns 1914, Acts 1907 p. 27, 30, making the keeping of intoxicating liquors in any room or-building prima facie evidence that they were kept for sale, does not apply in a prosecution based on §8351 Burns 1914, Acts 1907 p. 689, for keeping, running and operating a place where intoxicating liquors were kept, sold, bartered and given away in violation of law, where there is no evidence that the accused had the custody, control or possession of such liquors and that he had them in a room, building or other place, p. 172.</p>

From Steuben Circuit Court; Daniel M. Link, Judge. Proceedings for the construction of a drain on the petition of Dudley W. Gleason and others. From a judgment establishing the drain, Samuel A. Wolfe and others appeal.

<p>From Hancock Circuit Court; Earl Sample, Judge.</p> <p>Action by John L. Sullivan against Timothy J. Driscoll. From a judgment for plaintiff, the defendant appeals.</p>

From Wells Circuit Court; William H. Eichhorn, Judge. Action by John W. Brewer against Alfred D. Cressler and others, in which the First National Bank of Fort Wayne and others filed cross-complaints. From a judgment for plaintiffs and cross-complainants, Alfred Cressler and others appeal.

From Wayne Circuit Court; Henry C. Fox, Judge. Action by Earl A. Savage against Richard Schillinger and another. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Marion Circuit Court (25,056); Louis B. Ewbank, Judge. Proceedings between Emily W. Fletcher and Nellie W. Fletcher and others relative to the probaté of á will. From the judgment rendered, Emily Fletcher appeals. (Transferred from the Appellate Court for want of jurisdiction.)

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Prosecution by the State of Indiana against Ella • Gibbs. From a judgment of conviction, the defendant appeals.</p>

<p>From Knox Circuit Court; Benjamin M. Willoughby, Judge.</p> <p>Prosecution by the State of Indiana against William P. McQuade. From a judgment of conviction, the defendant appeals.</p>

From Allen Circuit Court; E. O’Rourke, Judge. Action by Rebecca Eady, executrix of the estate of Philip J. Eady, deceased, against the City of Decatur. From a judgment for plaintiff, the defendant appeals.

<p>1. ' Appeal. — Revieiv.—Evidence.—Verdict.—Where the evidence, in an action to contest the validity of a will, was sufficient to form an issue of fact as to testator’s testamentary capacity, the jury’s verdict cannot be disturbed, since the court on appeal cannot weigh the evidence, p. 223.</p> <p>2. Appeal. — Review.—Refusal of Instructions. — It is not- error to refuse requested instructions where the subject-matter there- . of is fully covered in the instructions given, p. 223.</p> <p>3. Depositions. — Admission in Evidence. — Where it was not contended that depositions were improperly taken nor that the witnesses were produced in court, the depositions showing that the witnesses were all nonresidents of the state, it was not error to permit them to read in evidence over an.objection that the reason for taking the depositions was not shown to still exist, p. 223.</p> <p>4. Depositions. — Motions to Suppress. — A motion to suppress a deposition should be made before the cause is submitted for trial, p. 224.</p> <p>5. New Trial. — Cause.—Newly-Discovered and Cumulative Evidence. — It is not error to overrule a motion for a new trial on the ground of newly-discovered evidence where such evidence is merely cumulative and impeaching, and of a character not calculated to produce a different result at another trial, p. 224.</p> <p>6. Witnesses. — Privileged Communications to Physicians.— Waiver. — The privilege given by statute to a patient or his legal representatives in relation to communications made to the patient’s physician may be waived, and, when once waived, it cannot be recalled and the information is no longer privileged. p.225.</p> <p>7. Appeal. — Harmless Error. — Admission of Clinical Record.— ■ Although the testator’s clinical record kept by the nurses for a hospital might be incompetent as a privileged communication in a will contest, the error, if any, in permitting it to be read in evidence was harmless where the party objecting asked his own witness to testify as to a part of such -record, p. 225.</p> <p>8. Trial. — Admissibility of Rebuttal Evidence. — Discretion of Trial Court. — It is within the discretion of the trial court to admit or exclude in rebuttal evidence which should have been given in chief, p. 225.</p> <p>9. Trial. — Rebuttal Evidence. — Res Gestae. — In an action to contest the validity of a will because of testator’s alleged unsoundness of mind, where a witness on cross-examination denied making certain statements at the time the will was executed in relation to the testator’s sanity, testimony impeaching the witness as to the denial was a part of the res gestae and,, while such testimony would have been proper if introduced in chief, it was not improper rebuttal, p. 225.</p>

<p>From Lake Superior Court; Laurence Becker, Judge.</p> <p>Action by Adam Widiger against the American Maize Products Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1397 Burns 1914, Acts 1901 p. 565, 568.)</p>

<p>1. Courts. — Appeal. — Drainage Proceedings. — Injunction. — Jurisdiction of Appeal. — Statute.—Where a complaint for an injunction to restrain a drainage commissioner from proceeding with the construction of a drain was filed in the same court in which the drainage proceeding was pending and the pleading was under a caption which included the title and number of the original action, and the record presents other indications that the matter was treated in the trial court as a step in the original proceeding, the Supreme Court will so consider it and will take jurisdiction to pass on the questions at issue, as §1392 Burns 1914, Acts 1907 p. 237, provides that appeals in proceedings to establish drains shall be to the Supreme Court, p. 235.</p> <p>2. Drains.— Judgment.— Amendment.— Authority of Court.— Notice. — The changing of the original specifications for a drain at the same term of court in which the judgment establishing the proposed improvement was entered amounted to an amendment or modification of the judgment and was within the authority of the court, since it retained jurisdiction of the subject-matter and, during the term at least, it had such jurisdiction over the parties to the proceedings as would authorize it to amend or modify the judgment without express notice to such parties, p. 236.</p> <p>3. Drains. — Judgment Establishing. — Modification.—Collateral Attack. — Where the circuit court, after entering a judgment establishing a drain, at the same term ordered a change in the original specifications, such order was, at the most, erroneous rather than void, so that the remedy of parties challenging such action was by appeal and they cannot' attack such order collaterally by an action to restrain the construction of the drain, p. 237.</p>

<p>From Howard Circuit Court; A. B. Kirkpatrick, Special Judge.</p> <p>Prosecution by the State of Indiana against Thomas A. Ruse. From a judgment of conviction, the defendant appeals.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Prosecution by the State of Indiana against the Terre Haute Brewing Company. From a judgment sustaining defendant’s motion to quash the indictment, the State appeals.

<p>From Marion Criminal Court (43,886) ; James M. Leathers, Special Judge.</p> <p>Prosecution by the State of Indiana against Harry P. Smith. From a judgment of conviction, the defendant appeals.</p>

<p>From Tipton Circuit Court; Leroy B. Nash, Judge.</p> <p>Action by Ernest E. Wishard against the Central Indiana Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against John McCrocklin. From a judgment quashing the indictment, the State appeals.</p>

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by Joseph B. Workman against the Board of Commissioners of the County of Wabash. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Scope.—Record.—Sufficiency.—Where the record fails to show that it contains all the evidence, assignments, as grounds for a new trial, that the verdict was not sustained by sufficient evidence and that it was contrary to law cannot be considered, p. 291.</p> <p>2. Appeal. — Review.—Instructions.—Failure to Point Out Error. —Waiver.—Where appellant’s brief fails to point out any specific objections to instructions, objections thereto are waived, p. 291.</p> <p>3. Wills. — Execution.—Requisites.—Attestation and, Witnessing. — A valid will must be in writing, signed by the testator or by some one for him, in his presence with his consent, and it must be attested and subscribed, in his presence, by two or more competent witnesses, but the statute does not require that they should see the testator sign or that they should see his signature, it being sufficient that he, in some manner, makes known that he has signed and requests them to sign as witnesses. p. 291.</p> <p>4. Appeal. — Review.-—Instructions.—Evidence not in Record.— Instructions considered in the absence of the evidence will not be held to be erroneous, ujiless they would be improper under any supposable state of the evidence, p. 292.</p>

<p>From Vanderburgh.Superior Court; F. M. Hostetter, Judge.</p> <p>Action, by Alvin J. Schmitt against Fred Geiger and Sons. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Elections;— Corrupt Practices.— Statutes.— Application.— • The Corrupt Practices Act, §7111a et seq. Burns 1914, Acts 1913 p. 489, applies to local option elections, p. 298.</p> <p>2. Elections.— Corrupt Practices.— Statutes.— Construction.— Indictment. — Sufficiency.—Under §7111k Burns 1914, Acts 1913 p. 502, providing that every person who shall receive, request or solicit for any person any money or thing of value for the purpose of inducing any person to vote, or refrain from voting, for or against any person or measure at any election, and that every person who, in consideration of any money or thing of ' value paid or promised, to the advantage of himself or any other person, shall vote, or refrain from voting, for or against any person or measure, shall, be guilty of corrupt practices, an indictment charging merely that the accused, in consideration of money received by him, voted at a special local option election is fatally defective for failure to allege that the money was received for the purpose of inducing the defendant to vote, or to refrain from voting, for or against the proposition submitted to the electors, it being immaterial, if the money were so received by the accused, which way he voted or whether he voted at all. p. 298.</p>

<p>From Marion Criminal Court (46,081); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Thomas Fox. From a judgment of conviction, the defendant appeals.</p>

From Boone Circuit Court; Willett M. Parr, Judge. Action by Samuel W. Harter against the Board of Commissioners of Boone county. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

From Cass Circuit Court; Joseph Claybaugh, Judge. From an allowance of certain claims by the Board of Commissioners of the County of Cass, Maurice Winfield, as an interested taxpayer, appealed to the circuit court. From the judgment there rendered, Winfield appeals.

From Delaware Circuit Court; Frank Ellis, Judge. Action, by Zerah C. Starbuck against Robert F. Bowers, administrator of the estate of Lewis I. Bowers, deceased. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Marion Superior Court (80,406) ; John J. Rockford, Judge. Action by Thomas Wise, administrator of the estate of Thomas F. Wise, deceased, against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565.)

Original action in the Supreme Court by the State of Indiana, on the relation of Arden Dearbeyne, against Charles E. Greenwald, as judge of room No. 3 of the Lake Superior Court, for a writ of mandate, and defendant demurs to the petition.

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben F. Eldridge. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against William Murphy - Draper. From a judgment quashing the indictment, the State appeals.</p>

<p>From Lake Superior Court; Walter T. Hardy, Judge.</p> <p>Action by Charles H. Friedrichs, administrator of the estate of Byron E. Fultz, deceased, against Mathew G. Lavene. From a judgment for plaintiff, the defendant appeals.</p>

From Madison Circuit Court; Luther F. Pence, Judge. Action by John Kramer and another against George Beebe, treasurer of the county of Madison. From a judgment for defendant, the plaintiffs appeal.

From Porter Circuit Court; H. H. Loring, Judge. Action by the Lake County Savings and Trust Company, administrator of the estate of Joseph Kolb, deceased, against the Chicago, Indianapolis and Louisville Railway Company. From a judgment for plaintiff, the defendant appeals.

<p>1. Conspiracy. — Appeal.-—Review.—Evidence.—Sufficiency.— In a prosecution for conspiracy to commit arson based on §2647 Burns 1914, Acts 1905 p. 584, 742, where one of the alleged conspirators testified to conversations between himself and the accused in which the latter expressed some feeling against the occupant of the building subsequently burned and offered the witness a sum of money to fire the building in question, and that, after the accused had agreed to arrange with another “to stand good for the money,” the witness without the knowledge of the defendant, procured another of the alleged conspirators to assist in starting the fire, such evidence is sufficient to support a judgment of conviction, pp. 371, 373. .</p> <p>2. Conspiracy. — Criminal Conspiracy. — Nature of. — Statute.— The term criminal conspiracy, as used in §2647 Burns 1914, Acts 1905 p. 584, 742, relating to conspiracies to commit felonies, means a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means, p. 371.</p> <p>3. Conspiracy. — Criminal 'Conspiracy. — Proof. — Conspiracies need not be established by direct evidence of the act charged, but may be proved by a number of indefinite acts, conditions and circumstances which vary according to the purpose to be accomplished, and the existence of an agreement or joint assent of the minds need not be proved directly, but ,may be inferred from the other facts shown by the evidence, p. 372.</p> <p>4. Conspiracy. — Criminal Conspiracy. — Formation.—Proof.—In establishing a conspiracy it is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose and to pursue it by a common means, but if it is shown that the defendants pursued by their acts the same object, it is sufficient, p. 372.</p> <p>5. Criminal Law.- — -Merger - of Offenses.- — -Crimes of Equal Grade. — Prosecution.-—Election by Sta)te. — The fact that the evidence may also tend to show that the accused was an accessory to the crime of arson does not prevent his conviction for conspiracy to commit such offense, the doctrine of merger of offenses having no application where the two crimes are of equal grade, and the State may elect which offense will be prosecuted, p. 373.</p> <p>6.. Criminal Law. — Evidence.—Testimony of Accomplice. — Sufficiency to Sustain Conviction. — Although the uncorroborated testimony of an accomplice should be received with caution, there is no rule of law forbidding a conviction on his evidence alone, p. 373.</p> <p>7. Criminal Law. — Appeal.—Record.—Certifying Original Bill ' of Exceptions. — Where an original bill of exceptions containing the- instructions is embodied in the record and properly certified by the clerk of the court, it will be treated on appeal as though copied into the record in accordance with the statute and the questions presented will be reviewed, p. 373.</p> <p>8. Criminal Law. — Trial. — Instructions. — Consideration as a Whole.- — Instructions are not to be considered by fragments, but as a whole, and if, when so considered, they state the law correctly, there is no error, p. 374.</p> <p>9. Criminal Law.— Trial.— Instructions.— Incomplete.— Error cannot be predicated on the giving of an instruction stating the law correctly as far as it goes, in the absence of a request for a more complete instruction and a denial of such request resulting in harm to defendant, p. 374.</p>

<p>1. Intoxicating Liquors. — Sales bjj Druggists. — License.—Statutes. — In a prosecution under §8351 Burns 1914, Acts 1907 p. 689, making it an offense for any person to keep, run or operate a place where intoxicating liquors are sold in violation of law and providing that none of the provisions of the statute shall apply to any druggist or pharmacist licensed as such by the State board of pharmacy, a druggist not so licensed cannot avail himself of the exception in favor of licensed pharmacists and may be prosecuted under such section, rather than §§8349, 8352 Burns 1914, Acts 1907 p. 27, 32, Acts 1907 p. 690, which apply regardless of license. (Shank v. State [1915], 183 Ind. 298, explained.) p. 375.</p> <p>2. Criminal Law. — Appeal.—Instructions.—Failure to Include in Bill of Exceptions. — Presumptions.—When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given, no question is presented for review as to the giving or refusal of instructions, as it will be presumed in such case that others were given covering the substance of those requested and refused and that, if the bill sets out instructions which are erroneous, they were corrected or withdrawn by other instructions not set forth in the record, p. 376.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by Amanda Bailey, administratrix of the estate of Chester Bailey, deceased, against the Goshen Milling Company. From a judgment for plaintiff, the defendant appeals.

From Clark Circuit Court; William Ridley, Judge. Action by Beatrice Montgomery, by George D. Montgomery, her next friend, against the Louisville and Southern Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Marion Probate Court (758); Mahlon E. Bash, Judge. Action by Anna Myhan against the Security Trust Company of Rochester, New York, Trustee and others. From a judgment for plaintiff, the defendant named and others appeal.

<p>From the Marion Criminal Court (44,161) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against George M. Ray. From a judgment of conviction, the defendant appeals.</p>

<p>From Lake Superior Court; Virgil S. Better, Judge.</p> <p>Proceedings on the petition of Harry H. Glueck to transfer a retail liquor license to Joseph Feczko, against which Oliver Starr remonstrates. From a judgment permitting the transfer, the remonstrant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Marion Superior' Court, sitting as a court of claims (87,202) ; V. G. Clifford, Linn D. Hay, W. W. Thornton, Theophilus J. Moll and John J. Roehford, Judges. • Action by the Metropolitan Life Insurance Company against the State of Indiana. From a judgment for the State, the plaintiff appeals.

<p>1. Husband and Wife. — Deeds to Husband and Wife. — Estates Granted. — Statute.—Under §§3953, 3954 Burns 1914, §§2922, 2923 R. S. 1881, relating to estates created by conveyances of land to two.or more persons, a conveyance of land to a husband and wife will not make them tenants in common, unless so expressed in the deed, but tenants by entireties, p. 419.</p> <p>2. Husband and Wife. — Deeds to Husband and Wife. — Estates Granted. — A deed to husband and wife providing that the grantees were “to hold the above described land during their natural life and their half of the proceeds to go to his heirs and half to hers” conveyed to the husband and wife title in fee, under .the rule in Shelley’s Case. p. 420.</p> <p>3. Husband and Wife. — Joint Tenants. — Estate of Survivor.— Where a husband and wife hold land as joint tenants, the surviving widow takes the whole estate, unless the. interest of the husband has been alienated prior to his death, p. 420.</p> <p>4. Husband and Wife. — Tenancy by Entireties. — Estate of Survivor. — Where a husband and wife hold lands in fee as tenants by entireties, the survivor takes the whole estate, p. 420.</p>

<p>From Boone Circuit Court; Willett H. Parr, Judge.</p> <p>Action by Ethel May Dailey Herron and another against the Citizens Loan and Trust Company, administrator, with the will annexed, of the estate of John C. Daily, deceased. From a judgment for plaintiffs, the defendant appeals. (Transferred from the Appel- , late Court under §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>1. Principal and Agent — Contracts by Agent.— Liability.— Evidence. — In an action for the purchase price of a quantity of lodge buttons, where the evidence showed that the defendant, the supreme commissioner of a fraternal organization, was authorized by the lodge to buy the buttons and that the negotiations leading to the sale, conducted wholly by correspondence, clearly indicated that he was acting on behalf of the order, the evidence was insufficient to sustain a verdict for plaintiff, pp. 431, 432.</p> <p>2. Principal and Agent. — Contracts by Agent. — Liability.— Where a person is known to be contracting as agent for another who is known to be the principal such contract, if within the agent’s authority, does not bind him personally, but binds the principal only. p. 432.</p>

<p>Elections. — Corrupt Practices. — Indictment.—Sufficiency.—Statute. — An indictment based on §11 of the “Corrupt Practices Act’1 (§7111k Burns 1914, Acts 1913 p. 489), making it unlawful for any person to directly or indirectly .receive money “for the purpose of inducing or procuring any person to vote, or refrain from voting, for or against any person, or for or against any measure or proposition at any election,” etc., is fatally defective where it charges merely that the accused received a certain sum of money “to promote the success of a principle to be voted on at a special local option election,” but does not allege that the money was received for the purpose of inducing any person to vote, or refrain from voting, for or against the proposition before the electors, which is the gravamen of the offense under the statute.</p>

From Marion ' Circuit Court (23,935) ; Louis B. Ewbank, Judge. Action by Charles Bremmer against Benjamin Marks and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Lake Superior Court; Walter T. Hardy, Judge. Action by the First Calumet Trust and Savings Company, administrator of the estate of Joseph Gorcsás, deceased, against the Linde Air Products Company. From a judgment for plaintiff, the defendant appeals.

<p>From Fountain Circuit Court; L. E. Schoonover, Judge.</p> <p>Information in quo warranto by the State of Indiana,, on the relation of Edward Maxwell, against James W. Ellis. From a judgment for defendant, the relator appeals.</p>

<p>1. Municipal Corporations. — Public Improvements.- — Sewers.— Assessments.— Exemptions. — Cemeteries. — Statute.— Section 8726 Burns 1914, Acts 1905 p. 219, 302, providing that land used or occupied for cemetery purposes shall not be assessed for the construction of sewers or drains adjacent thereto, applies only to such sewers'or drains as, by their location and construction, are in actual physical contact with, or which abut, adjoin or are near lots or parcels of land held or used for cemetery purposes, and the statute does not apply in a case where the sewer at its nearest point to the cemetery is more than 600 feet away, p. 448..</p> <p>2. Municipal Corporations. — Public Improvements. — Sewers.— • Assessments. — Exemptions. — Cemeteries.— Statute.— Section ' 4447 Burns 1914, Acts 1905 p. 185, providing that the property and assets of cemetery corporations not organized for profit shall be exempt from taxation, pertains only to the exemption of taxes imposed by legislative authority, and does not apply to local assessments based upon the theory of benefits to property assessed, p. 451.</p> <p>3. Statutes. — Construction. — Provisos. — Operation and Effect. — The chief purpose of a proviso is to except the clause covered by it from what would otherwise be embodied in the statute, p. 452.</p> <p>4. Municipal Corporations.— Public Improvements.— Statute. —Construction.—The proviso in §4447 Burns 1914, Acts 1905 p. 185, amending the act of 1895, Acts 1895 p. 18, exempting the real estate of cemetery corporations from sewer assessments is without legislative force since the subject-matter of the proviso is not within the title of the original act, nor a matter germane to the subject expressed therein, and there is no provision in the body of such act upon which the proviso may operate, p.' 452.</p> <p>5. Municipal Corporations. — Public Improvements. — Assessments. — Exemptions. — Presumptions.— Statutes. — Construction. — In the absence of specific statutory authority exempting property from local assessments, the exemption of real estate therefrom will not be presumed, and any law to that effect will be strictly construed, p. 452.</p> <p>6. Municipal Corporations. — Public Improvements. — Assessments. — Exemptions.-—Cemeteries.—Public Policy. — The barrier of public policy will interpose to prevent the enforcement of improvement assessments by foreclosure and sale of lots and parcels of land used or occupied for burial purposes, p. 458.</p> <p>7. Municipal Corporations. — Public Improvements. — Sewers.— Assessments.— Exemptions.— Cemeteries.— A cemetery company, incorporated for the purpose of profiting by the sale of burial lots, owning land included within a legally created drainage district, is, in the absence of a statute exempting such land from sewer assessments, liable therefor, where it appears that a reasonable assessment may be enforced against realty owned by such company without molesting the lots or parcels of ground actually in use for burial purposes, p. 458.</p>

<p>1. Municipal Corporations. — Streets.—Vacation.—Authority.— • Delegation by Legislature. — Primarily the legislature has the right to control and vacate public streets, but this jurisdiction, in this State, has been delegated to municipalities or local tribunals. p. 457.</p> <p>2. Municipal Corporations. — Vacation of Street. — Proceedings of Board of Public Works. — Presumption.-—In the absence of a contrary showing, it will be assumed that the board of public works complied with the statutes (§8700 .et seq. Burns 1914, Acts 1905 p. 219), in a proceeding to vacate a street, p. 457.</p> <p>3. Constitutional Law. — Due Process of Law. — Powers of Legislature. — “Due process of law” within the meaning of §1 of the fourteenth amendment of the federal Constitution requires only that provision shall be máde for notice in some form and a fair opportunity to be heard before final determination, but it is within the power of the legislature to prescribe the character of the notice and the tribunal before which the hearing may be had. p. 460.</p> <p>4. Constitutional Law. — Due 'Process of Law. — Vacation of Street.- — Notice.—Sufficiency.—In determining whether the notice given to a property owner in a proceeding to vacate a street is such as is contemplated by the words “due process of law,” the courts may look to the object to be accomplished and the limits within which the hearing provided by law may be confined, and, if the notice given is found suitable or admissible in the particular case under consideration, it will be sufficient to satisfy the requirements of the federal Constitution, p. 460.</p> <p>5. Constitutional Law. — Due Process of Law. — Vacation of Streets.— Notice.— Sufficiency.— Statutes. —Validity.—Section 8700 et seq. Burns 1914, Acts 1905 p. 219, relating to the appropriation of property by cities and providing, in a proceeding to vacate a street, for notice, a hearing, an award of damages and a right of appeal, is not violative of §1 of the fourteenth amendment of the federal Constitution prohibiting the taking of property by the State without due process of law, p. 460,</p> <p>6. Eminent Domain. — Appropriation of Property. — Compensation. — Vacation of Street. — Statutes.—Validity.—Section 8700 et seq. Burns 1914, Acts 1905 p. 219, relating to proceedings to vacate a street, is not invalid ás contravening §21 of the Bill of Rights of the Constitution of Indiana, providing that property shall not be taken without just compensation, nor, except in the case of the State, without such compensation being first assessed and tendered, p. 461.</p> <p>7. Eminent Domain. — Streets.—Vacation.—Damages.-—A property owner whose lands do not abut on the portion of a street vacated is entitled to recover damages where the .vacation results in leaving his property abutting on a cul-de-sac, if it appears that such owner has suffered a special and peculiar injury not shared in by the general public, p. 462.</p> <p>8. Eminent Domain. — Vacation of Street. — Appeal.—The acts of the board of public works in assessing benefits or awarding damages, as authorized by §8700 et seq. Burns 1914, Acts 1905 p. 219, are essentially judicial, and an appeal may be taken from the board’s final order or judgment, p. 463.</p> <p>9. Eminent Domain. — Vacation of Street.- — Statutes.—Scope.— Award of Damages. — Appeal.—Section 8700 et seq. Burns 1914, Acts 1905 p. 219, providing for an award of damages by the board of public works in a street vacation proceeding, is broad enough to include injury to property left abutting upon a culde-sac, by reason of the vacation and, where the board, having fully complied with the statute, did not award damages to the owner of such property, his remedy was by remonstrance and appeal and not by an independent action, p. 463.</p>

From Jay Circuit Court; James J. Moran, Judge. Action by Mary J. Justus, administratrix, against the Fort Wayne and Wabash Valley Traction Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>From Shelby Circuit Court; Alonzo Blair, Judge.</p> <p>Action by Carl Gross against the Cincinnati, Hamilton and Dayton Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>From Hancock Circuit Court; Robert L. Mason, Judge.</p> <p>Action by Samuel J. Hensley against the Indianapolis Traction and Terminal Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Jay Circuit Court; Emerson E. McGriff, Judge.</p> <p>Petition by Ray Landes for admission to bail. From a denial of the petition, the petitioner appeals.</p>

From Morgan Circuit Court; John H. James, Special Judge. . Action by the State of Indiana, on the.relation of Fred W. Fields, trustee, against George Steiger and others. From a judgment for relator, the defendants appeal.

<p>1. Appeal. — Remand.—Mandate.—Enforcement.-—Jurisdiction.— Where a cause has been remanded, the Supreme Court retains jurisdiction thereof for the purpose of enforcing its mandate, p. 524.</p> <p>2. Appeal. — Remand.—Discretion of Trial Court. — Where a cause has been remanded, the trial court has no discretion, but is bound to apply the mandáte of the Supreme Court so far as the rights of the parties have been determined on the appeal, pp. 524, 525. ’</p> <p>3. Appeal. — Remand.-—Mandate.—Construction.—On a remand of a cause, when the Supreme Court’s mandate, which is the trial court’s guide, is open to construction, it must be found in the accompanying opinion and in the reasoning stated therein, and the trial court, if doubt still remains, should apply to the Supreme Court for further explanation or direction; and no part of the opinion should be regarded as dictum haying no bearing on the mandate, p. 524.</p> <p>4. Appeal. — Mandate.—Construction.—Sale of Railroad:■ — Conditions.- — Where, in a receivership proceeding, the trial court decreed the sale of an insolvent railroad subject to the condition that the operation of the road as a steam railway be continued, and, on appeal, the Supreme Court ordered that the decree be freed of such condition as obstructive to the execution thereof, it was not a compliance with the appellate tribunal’s mandate to substitute a condition of sale that the purchaser should operate the line “as a common carrier, either as a steam, electrical or other motive power road,” the court’s opinion having clearly indicated that the requirement as to operation, and not as to mptive power, was the obstruction to be removed, p. 525.</p> <p>5. Receivers.- — Railroads.—Insolvency.—Continuation of Operation. — Where a receiver is appointed for a railroad, which has become insolvent because of unprofitable operation, it is the duty of the court to dispose of the assets for the benefit of the creditors, and it has no power to operate the road where such action would result in further loss, and the fact that communities through which the railway passes contributed for its construction and equipment does not entitle the contributors to demand that the road be operated at the expense of those holding liens on the property, p. 527.</p>

<p>1. Brokers. — Realty Brokers. — Action for Commission. — Complaint. — Sufficiency.—Written Contract.- — -In an action to recover a commission for the sale of real estate, where the complaint contains allegations showing that defendant, in answer to a letter of inquiry from plaintiff, wrote “In reply to your inquiry about the farm, will say, I have it listed with another real estate agent, and his time on it doesn’t expire until March 1st, 1914, though I may fix it with him to release it, if you have a chance you think you can make a deal. Would have to have $100.00 per acre; and will pay 2 per cent for making the transaction, providing I can make it right with the other agent,” that plaintiff, in January, 1915, procured a purchaser, who paid the stipulated consideration for the farm, and that thereafter defendant agreed that a certain sum was due plaintiff under the written contract relied on, such complaint sufficiently shows a written contract within the terms of the statute requiring contracts for commissions for the sale of realty to be in writing, and an employment and agreement to pay, and is not demurrable, p. 531.</p> <p>2. Brokers.' — Realty Brokers. — Action for Commission. — Complaint. — Surplusage.—In an action by a realty broker to recover a commission for the sale of a farm, an allegation that defendant acknowledged his obligation did not destroy the theory of the complaint as counting upon a written contract, since such allegation was surplusage, p. 532.</p>

<p>From Marion Superior Court (106,634); W. W. Thornton, Judge.</p> <p>Action by Henry W. Bennett against Ed Jackson, as Secretary of State, and others. From the judgment rendered, plaintiff appeals.</p>

<p>From Lake Circuit Court; John B. Peterson, Special Judge.</p> <p>Prosecution by the State of Indiana against John Krstovich. From a judgment of conviction, the defendant appeals.</p>

<p>1. Sales. — •Action for Price.— Complaint.— Theory.— Instructions.- — -In an action upon the common count to recover for goods sold, a complaint alleging that defendant was indebted in an amount named for wares and merchandise sold and delivered, accompanied by a bill of particulars made a part of the complaint, as required by §368 Burns 1914, §362 R. S. 1881, is sufficient within the terms of §343 Burns 1914, §338 R. S. 1881, requiring only a plain and concise statement of the facts relied on, to show that recovery was sought for. a fixed contract price, the word “sold” signifying a contract of sale made between the parties for a valuable consideration, and the allegation of indebtedness implying a present matured indebtedness due and unpaid, so that instructions that a verdict for plaintiff should be for the agreed price of the goods if one were proven, but if no price were shown to have been fixed by the contract of sale, the recovery should be for the fair cash value as established by the evidence, were proper, pp. 560, 562.</p> <p>2. Sales. — Action for Price. — Quantum Meruit. — In an action for goods- sold and delivered tried as an action upon the common count, the recovery would be upon the quantum meruit, regardless of whether it was for the price fixed by the contract of sale or for the value of the goods as-shown by the evidence, p. 562.</p>

<p>1. Bailment. — Interest of Bailee. — Damage to Property. — Right to Sue. — A bailee of personal property has such a qualified ownership as will give him a right to recover for its loss or damage as against one who has wrongfully dispossessed him of the property or destroyed it. p. 564.</p> <p>2. Bailment. — Injury to Property by Third Person. — Right to Sue. — Where a horse placed by the owner in the possession of another was killed upon a railroad crossing, either the owner or the bailee might recover, but not both, or the owner could sue both the bailee and the railroad company as joint tortfeasors, or he could bring the action against either, p. 564.</p> <p>3. Railroads. — Damage to Property. — Action.—Jury Question. —Contributory Negligence. — Where a horse was killed by being driven over a railway crossing, and the circumstances were such that reasonable minds might differ as to whether the driver exercised such care as a person of reasonable prudence would have used under like conditions, the question of contributory negligence was one of fact for the jury. p. 565.</p> <p>4. Appeal. — Verdict.—Conclusiveness.—Where there is some evidence to support the conclusion reached by the jury, the verdict cannot be disturbed on appeal, p. 565.</p>

<p>1. Limitation of Actions. • — ■ Discovery of Cause of Action. — Suspension of Statute. — The failure to discover a cause of action does not, like its concealment, operate to suspend the statute of limitations, p. 568.</p> <p>2. Limitation of Actions. — Accrual of Bight. — A cause of action accrues,, so that limitations begin to run, at the moment its owner has a legal right to sue on it, except where extrinsic facts postponing the operation of the statute are interposed, p. 568.</p> <p>3. Limitation 6f Actions. — Accrual of Bight. — Money Due under Written Contract. — Demand.—Where an employer’s liability policy was issued in March, 1903, insuring defendant for a period of twelve months against loss from liability for injuries to its employes, the premium being based upon the estimated compensation paid to employes, with a stipulation that, if the compensation actually paid should prove greater than the original estimate, defendant should pay an additional premium, no demand for payment was necessary to fix liability for additional earned premium which, if owing, was due in one year after the date of the policy, so that- an action to recover such additional premium begun in May, 1914, was barred by the ten-year statute of limitations (§295 Burns 1914, §293 R. S. 1881) in the absence of facts postponing the operation of the statute, p. 5,68.</p> <p>4. Limitation of Actions. — Fraudulent Concealment of Cause of Action. — To constitute a fraudulent concealment of a cause of action so as to prevent the running of the statute of limitations, some trick or artifice must be employed to prevent inquiry or to elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, by the use of ordinary diligence, that a right of action exists, and the acts relied on must be of an affirmative character and fraudulent, p. 568.</p> <p>5. Limitation of Actions. — Fraudulent Concealment of Cause of Action. — The refusal to allow an insurer to make an examination of the books of the insured to ascertain the compensation actually paid to the latter’s employes within the period of the policy so that the amount of additional premium due could be determined, was not a fraudulent concealment within the meaning of the law, and could not affect the running of the statute of limitations, p. 569.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by the First National Bank of Peru against Edward T. Conant and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590..)

<p>1. Appeal. — Presenting Questions for Review. — Submission of Cause to Jury. — The action of the trial court in sustaining a motion to submit a cause to a jury cannot be assigned independently as error on appeal, but such objection may be raised only as a ground in a motion for a new trial, p. 574.</p> <p>2. Appeal.' — Briefs.—Assignment of Errors. — Failure to Set Out Motion for a New Trial. — An assignment of error that the trial court erred in overruling appellant’s motion for a new trial presents no question for review where the motion is not set out in appellant’s brief, either in substance or in full, and all questions sought to be presented thereby are waived, p. 574.</p> <p>3. Appeal. — Presenting Questions for Review. — Directing a Verdict. — Any question as to the action of the trial court in directing .a verdict must be presented on appeal through the medium of a motion for a new trial, and not by an independent assignment as error, p. 574.</p>

<p>1. Appeal. — Review.—Scope.—It is the duty oí a court of appeal to consider questions of law decided by the trial court, and to determine whether the questions so presented were decided correctly or erroneously, and in so doing it is proper that the appellate tribunal should consider such questions only as were presented to, and decided by, the trial court, p. 577.</p> <p>2. Constitutional Law. — Due Process of Law. — Fifth Amendment to Federal Constitution. — Application and Scope.'■ — Article 5 of the amendments of the federal Constitution, declaring that no person shall be deprived of life, liberty or property without due process of law, does not affect the governmental powers of the states, but places a restriction on the powers of the national government, p. 577.</p> <p>S. Constitutional Law. — Act of Legislature. — Unconstitutionality. — Sufficiency of Objections. — One assailing the constitutionality of an act of the legislature must point out the particular provision of the Constitution which it is claimed the act violates, as courts will not search the Constitution to find authority to overthrow a legislative enactment, p. 577.</p>

From Scott Circuit Court; Robert A. Creigmile, Judge. Action by John F. Johnson against the Baltimore and Ohio Southwestern 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. Criminal Law. — Appeal.—Review.—Conflicting Evidence.— The court on appeal will not determine the weight of conflicting evidence, p. 585.</p> <p>2. Justices op the Peace. — Powers.—Arrests.—Under §15, Art. 7, of the Constitution justices of the peace are conservators of the peace, and are authorized by statute (§2013 Burns 1914, Acts 1905 p. 584, 616) to arrest and detain any person found violating the law until a legal warrant can be obtained, p. 585.</p> <p>3. Arrest. — Arrest without Warrant. — Escape.—Recapture.— Where one arrested for an offense committed in the presence of the arresting officer escaped, the officer was authorized, in view of §§2000, 2001 Burns 1914, Acts 1905 p. 584, 613, relating to arrest, escape and recapture, to pursue defendant and retake him without first having procured a warrant for the arrest, p. 585.</p> <p>4. Arrest. — On Criminal Charges. — Person Liable. — As a general rule every citizen must submit to lawful arrest unless privileged therefrom by §6, Art. 1, of the Constitution of the United States, and §8, Art. 4, and §12, Art. 2, of the Constitution of Indiana, and justices of the peace are not exempted thereby, p. 585.</p> <p>5. Justices of the Peace. — Arrest on Criminal Charges. — Although justices of the peace are, under §3802 Burns 1914, §2658 R. S. 1881, privileged from arrest on civil process while engaged in hearing or determining a trial, in case of arrest on a criminal charge they are in the same position as any other citizen, p. 586.</p> <p>6. Assault and Battery. — Commission in Making an Arrest.— If a justice of the peace in making an arrest was unlawfully attempting to commit a violent injury upon the prisoner, or was using more force than was reasonably necessary, he thereby became an offender, subject to arrest, and his resistance by drawing a pistol was unlawful, p. 586.</p> <p>7. Criminal Law. — Drawing Dangerous Weapon. — Instruction. —Omission of Proviso in Statute. — In a prosecution for drawing a dangerous weapon in violation of §2344 Burns 1914, Acts 1905 p. 584, 687, an instruction defining the offense, being complete as to the subject covered, was not erroneous for failure to include the exception noted in the proviso of the statute, as it was a matter of defense which need not have been negatived, p. 586.</p> <p>8. Criminal Law. — Instructions.—Request for. — Necessity.—Instructions upon the subject of privilege from arrest are not erroneous because not making any exception to the right of one to resist an unlawful arrest, as such matter should have been presented by tendered instructions, p. 587.</p> <p>9. Criminal Law.- — Instructions.—Standing of Accused in Community. — In a prosecution for drawing a dangerous weapon in violation of §2344 Burns 1914, Acts 1905 p. 584", 587, an instruction that the jury should, in fixing the penalty, consider the “standing of the man in the community” was erroneous, as such matter could not be considered for the purpose of enhancing or diminishing punishment, especially wheré there was no evidence on the subject to guide the jury. pp. 587, 588.</p> <p>10. Criminal Law. — Instructions.—Applicability to Evidence.— Instructions must he within the issues ■ and pertinent to the evidence, p. 588.</p> <p>11. Criminal Law. — Fixing Punishment. — Erroneous Instructions. — Reversible Error. — An instruction in a criminal prosecution, directing the jury to consider matters which were without the evidence and improper in fixing the punishment, cannot be said to bé harmless where the penalty assessed was much greater than the minimum for the offense charged, p. 589.</p>

<p>1. Criminal Law. — Appeal by State. — Questions of Fact. — The Supreme Court will not pass on questions suggested by the State on appeal from an adverse decision in a criminal case where such questions require a determination of questions of fact, but on an appeal by the State in a murder case under the provisions of §2162 Burns 1914, Acts 1905 p. 584, 647, where the indictment charged that defendant committed the homicide by striking deceased with a shovel and there was some evidence that the assault was with a stone or brick, the Supreme Court, in reviewing an instruction to acquit unless the killing was with a shovel, is not required to pass on any issue of fact or to consider the evidence further than necessary to obtain an understanding of the question presented, which action is within the contemplation of the statute, p. 591.</p> <p>2. Homicide. — Indictment.—Proof.-—Variance.—Instrument Used. —In a prosecution for homicide or assault with intent to kill, all material allegations of the indictment must be proved substantially as laid, but the proof of the means of commission of a homicide or assault need not conform strictly to the averment of such means in the indictment, provided the means of death or mode of applying the violence be the same in kind and agrees in substance with those charged, and as' to the allegation of the instrument by which death is inflicted, or the assault committed, there is no variance where the proof -shows that another instrument than that alleged was used if it was of a similar nature and caused the same character of wound or injury, so that in a prosecution for murder under an indictment charging that the homicide was committed by striking deceased with a shovel and there was some evidence that the assault was with a stone or brick, an instruction to acquit because of variance between the evidence and the charge in the indictment, unless the killing were with a shovel, was erroneous, p. 591.</p>

<p>1. Indictment and Information. — Conviction for Included Offenses. — Statute.—A person charged with a given crime cannot be convicted of another crime of lesser magnitude under the provisions of §2148 Burns 1914, Acts 1905 p. 584, 644, allowing conviction for offenses included in that charged, unless a conviction of the crime charged necessitates proof of all the essential elements of the lesser offense together with the added element which makes the difference in the two offenses, p. 596.</p> <p>2. Kidnapping. — Proof . — Included Offenses. — Pull proof of a charge of kidnapping may be made without proving an assault and battery, which is defined by §2242 Burns 1914, Acts 1905 p. 584, 661, as unlawfully touching another in a rude, insolent or angry manner, .p. 596.</p> <p>3. Assault and Battery. — Affidavit for Kidnapping. — Sufficiency to Charge Assault and Battery. — An affidavit for kidnapping, based on §2247 Burns 1914, Acts 1905 p. 584, 661, alleging that defendants unlawfully, feloniously, forcibly and fraudulently carried off a person named, forcibly and against his will, does not charge an assault and battery, so that, such offense not being necessarily included in the crime of kidnapping, a conviction for assault and battery under such affidavit is contrary to law and. a nullity, p. 596.</p>

<p>From Hamilton Circuit Court; Ernest E. Cloe, Judge.</p> <p>Action by Charles W. Sumner against Rosella Poffinbarger. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Wells Circuit Court; William H. Eichhorn, Judge.</p> <p>Action by Elizabeth Werkman against the Wayne Health and Accident Insurance Company. From a judgment for plaintiff,' the defendant appeals.</p>

<p>From Wabash Circuit Court; William H. Eichhorn, Special Judge.</p> <p>Action by the State of Indiana, on the relation of the Board of Commissioners of Hamilton county, against Roscoe A. Kaufman and another. From a judgment for defendants, the relator appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Perjury.- — Indictment.—Statute.—An indictment for perjury charging that the accused falsely made a voluntary affidavit before a notary public repudiating, as untrue, testimony which he had previously given before a grand jury and stating that he had been induced by a special prosecuting attorney to give such false testimony was properly based on §2376 Burns 1914, Acts 1905 p. 584, 694, providing that whoever wilfully, corruptly and falsely, before any officer authorized to administer oaths, under oath or affirmation, voluntarily makes any false certificate, affidavit or statement of any matter, for any purpose, shall be deemed guilty of perjury, §2376 Burns 1914, Acts 1905 p. 584, 694, having no application, as the affidavit does not purport to relate to a pending proceeding, and contains nothing concerning which an oath or affirmation might be required by law. p. 610.</p> <p>2. Criminal Law. — Appeal.—Review.—Admissibility of Evidence. — Waiver.-—Review of any questions as to the admissibility of evidence is waived, where appellant fails, in his brief, to point out where such evidence may be found, p. 611.</p>

From Lake Circuit Court; H. J. Paulus, Special Judge. Action by James E. Prevo and others against the City of Hammond and others. From a judgment for defendants, the plaintiffs appeal.

From Benton Circuit Court; Burton B. Berry, Judge. Action by Charles O. Blind against The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.' (Transferred from the Appellate .court - under §1397 Burns 1914, Acts 1901 p. 565.)

<p>From Marion Superior Court (92,338); Theophilus J. Moll, Judge.</p> <p>■ Action by William H. Carroll against the Fidelity and Casualty Company of Néw York. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Municipal Corporations. — Defect in Street. — Injury to Pedestrian. — Grounds of Recovery. — In an action against a city for fatal injury resulting from a failure to properly guard a stone quarry, recovery depends upon proof of the negligence charged, that it was the proximate cause of the injury, and a failure to show, as a defense, that the injured party was guilty of contributory negligence, p. 640.</p> <p>2. Trial. — Verdict.—Scope.—In an action for personal injuries, a general verdict for plaintiff is a finding in his favor on the issues of negligence and contributory negligence, p. 640.</p> <p>3. Trial. — General Verdict. — Answers to Interrogatories. — Conflict. — A general verdict will not be overthrown by answers of the jury to interrogatories, unless there is such irreconcilable conflict that the verdict cannot stand under any state of facts provable under the issues, p. 640.</p> <p>4. Municipal Corporations. — Defect in Street. — Injuries to Pedestrian. — Action.—Verdict.—Answer to Interrogatories. — In an action against a city for the death of plaintiff’s decedent, alleged to have been caused by the municipality’s negligence in failing to keep one of its streets in a reasonably safe condition for travel, where answers to special interrogatories show that deceased fell into an unguarded quarry pit adjoining the north line of the street while on his way home on a night so intensely dark that a person of normal vision could not see the pit, which was not illuminated at the time of the accident because an electric arc lamp maintained by the city for that purpose was not burning, that the location of the pit and the fact that it had ¿remained without any barrier or fence for more than ten years was known to deceased, that he could have reached his home by walking in( the center or on the south side of the street or by turning into an unimproved street by which route he would pass another unguarded pit, and that for a number of years.a footpath had been generally used by persons living on the north side of the street when passing the pit, such answers are not in irreconcilable conflict with a general verdict for plaintiff .as showing the existence of a safe and unsafe way and that deceased-was guilty of contributory negligence in failing to take the safe way. p. 640.</p> <p>5. Municipal Corporations. — Dangerous Streets. — Duty of City to Maintain Barriers or Fences. — Although, as a general rule, cities are not required to erect- barriers or fences along highways to prevent travelers from falling into nearby excavations, yet when an unguarded pit is so located as to endanger travelers using the street with ordinary care to avoid exposure to injury, reasonable precaution and prudence require the city to render the use of the street reasonably safe by placing a guard along the pit and its failure to do so is negligence; and the city is not relieved of such duty by maintaining an electric arc lamp for the purpose of illuminating the street at the place of danger, since such lamps cannot be kept lighted under all conditions. 648.</p>

<p>1. Criminal Law. — Suspended Sentence. — Execution.—Place of Imprisonment. — Where defendant, on a plea of guilty to a charge of assault and battery, was sentenced to pay a fine and to imprisonment in. the county jail, and, upon his motion, the execution of the sentence as to imprisonment was suspended, and he was paroled during good behavior on the condition that the court might, for any cause, set aside the order suspending the jail sentence, the court had. the power to order the defendant imprisoned in the Indiana State Farm, subsequently created by §9926a et seq. Burns 1914, Acts 1913 p. 660, as the place where defendant should be confined did not constitute a part of the judgment, p. 646.</p> <p>2. Criminal Law. — Sentence.—Imprisonment.—Failure to Object. — Where defendant pleaded guilty to a charge of assault and battery and the sentence as to imprisonment in the county jail was suspended during good behavior, and subsequently, on the order of suspension being revoked, he was ordered im-< prisoned in the Indiana State Farm, deféndant, in the absence of a motion to modify the order so as to require imprisonment in the county jail, cannot present any question relating to the place of his confinement, p. 647.</p> <p>3. Constitutional Law. — Constitutionality of Statute. — Right to Question. — Where defendant on his own motion obtained an order suspending as to imprisonment a sentence for assault and battery and accepted his liberty thereunder, in accordance with the provisions of the act of 1909, Acts 1909 p. 434, §2174 et seq. 'Burns 1914, and the court revoked the order of suspension under §3 of the act, defendant cannot question the constitutionality of the act as being violative of §17, Art. 5 of the Constitution, conferring upon the governor the power to grant reprieves, commutations, and pardons after .conviction, since one who invokes the provisions of a law will be denied the right to question its constitutionality, p. 647. '</p> <p>4. Constitutional Law. — Determination of Constitutional Question. — The court on appeal will not determine a constitutional question if its decision can rest upon other grounds, p. 648.</p> <p>5. Criminal Law. — Sentence of Imprisonment.- — Commencement. —In a prosecution for assault and battery with intent to kill, where defendant obtained upon his own motion an order suspending sentence as to imprisonment, the suspension being granted upon the' condition that sentence might be enforced at any time for any cause, and the order was subsequently revoked, defendant cannot assert that the term of imprisonment commenced to run from the date of the original judgment and that sentence cannot be enforced after the term for which it was to continue had expired, as the court could at ,any time set aside the order of suspension and direct that the term of imprisonment should commence on the date on which defendant should be confined, p. 648.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by the board of finance of Jackson township, Hamilton county, against the Equitable Surety Company of St. Louis, Missouri. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Jay Circuit Court; Jacob F. Denny, Judge.</p> <p>Action by Clarinda E. Wright against John T. Rook. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns .1914, Acts 1901 p. 590.)</p>

<p>1. Constitutional Law. — Impairing Obligation of Contract.— Change of Law Embodied in Contract. — Any change of the law embodied in a contract, such as a street improvement bond, which will substantially postpone, obstruct or retard its enforcement, or lessen its value, whether the change relates to its validity, construction, duration or discharge, impairs its obligation in violation of §10, Art. 1, of the Constitution of the United States, and by §24, Art. 1, of the Constitution of Indiana, and it is immaterial whether the change of láw resulting, in the impairment of the contractual obligation acts oil the remedy or directly on the contract, p. 664.</p> <p>2. Constitutional Law. — Street Improvement Bonds. — Impairing Obligation of Contract's. — Where improvement bonds were issued under §§8718, 8719 Burns 1914, Acts 1905 p. 236, and §8720 Burns 1914, Acts 1907 p. 550, providing for the payment of assessments for street improvements in installments, the issuance of improvement bonds, the payment of which should be secured by a lien on the real estate assessed, that the city treasurer should receive all money paid on installments and pay the same to the bondholders and that “he should not use the money received by him in payments of such installments for any other . purpose whatever than that of paying the bonds and coupons,” the bondholder had his contractual rights fixed by such statute, so that the act of 1915, Acts 1915 p. 549, amending §8718 Burns 1914, and providing that prepayments of assessments must be credited to »■ “special fund” to be held' in trust for the owners of bonds until the city can “invest such trust funds in bonds similar in kind and character, at par, for the benefit of said city as trustee for the holders of the bonds and interest coupons upon which such prepayments were made,” and that the city should become liable for the amount of such prepayments, is invalid, as applied to bonds issued under the former acts, as impairing the obligation of the city’s contract with the bondholders in violation of §10, Art. 1-, of the Constitution of the United States and §24, Art. 1, of the Constitution of Indiana, since the amendatory act added substantial additional terms, risks and delay in the settlement of such contract not contemplated when it was originally executed, p. 665.</p> <p>3. Injunction. — Grounds.—Apprehended Injury. — Courts will not grant an injunction where it appears that the injury is merely apprehended but without facts showing that it is likely to occur, p. 669.</p> <p>4. Injunction. — Grounds.-.—Actual Injury. — Threatened Injury. . —Where it appeared that a city was about to divert and use money held by its treasurer in trust for holders of improvement bonds in the purchase of bonds similar in kind and character, in violation of the bondholder’s contract, and the treasurer had been ordered to draw a warrant in payment therefor, and some portion of the debt evidenced by the original issue of the bonds would be lost because of the fluctuation in the value of the bonds to be purchased with the trust funds, injunction will issue in behalf of the holders of the improvement bonds, as the injury threatened was not contingent, but real, and, it appearing that it was the settled policy to divert and invest such special fund, which was derived from the prepayment of assessments for street improvements, the bondholders were not required to wait until a prepayment was actually made before bringing suit to enjoin its reinvestment, p. 669.</p> <p>5. Municipal Corporations. — Contracts in Excess of Authority. —Injunction.—The execution of a contract by a city in excess of its authority may be enjoined, p. 671.</p> <p>6. Municipal Corporations. — Unauthorized Issue of Bonds.- — - Injunction. — The issue of corporate bonds by municipalities without authority may be enjoined, p. 671.</p> <p>7. Municipal Corporations. — Unauthorized Expenditure of Funds. — Injunction.—An injunction, suit may be maintained by a taxpayer to prevent the unauthorized expenditure of corporate funds by the officers of a municipality, p. 671.</p>

<p>From Wabash Circuit Court; A. H. Plummer, Judge.</p> <p>Action by John T. Bennett against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway .Company. From a judgment for plaintiff, the defendant appeáls.</p>

<p>From Marion Criminal Court (46,357) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Michael Krempl. From a judgment of conviction, the defendant appeals.</p>

• From Lake Superior Court; Charles E. Greenwald, Judge. Action by Clinton C. Hill against Harry E. Taylor and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action by Dirrelle Chaney and others against Haddon Township of Sullivan County. From a judgment for defendant, the plaintiffs appeal.'</p>

<p>1. Courts. — Transferring Cause from Appellate Court. — Petition.— Sufficiency.— Showing Jurisdiction.— Statute.— Under §1394 Burns 1914, Acts 1901 p. 565, providing that, in cases appealable to the Appellate Court, the losing party may file a petition to have the cause transferred to the Supreme Court within thirty days after his petition for a rehearing has been overruled, the petition to transfer is jurisdictional and must set forth such facts as are necessary to show that the petitioner has brought himself within the statute, p. 690.</p> <p>2. Courts.- — Transferring Cause from Appellate Court. — Petition. — Sufficiency.—On a petition to transfer a cause from the Appellate Court, filed under §1394 Burns 1914, Acts 1901 p. 565, the Supreme Court is precluded from examining the record in the case to determine the existence of a jurisdictional fact, but it must appear from the petition itself, as a condition precedent to the right to invoke the jurisdiction of the court to pass on such application, that the proper steps have been taken in the Appellate Court to secure a review of the rulings alleged to be erroneous, p. 692.</p>

<p>From Sullivan Circuit Court; William, H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Tom Watson. From a judgment quashing the indictment, the State appeals.</p>

<p>From Allen Circuit Court; John W. Eggeman, Judge.</p> <p>Action by the Trustees of Plymouth Congregational Church against J. Herman Bueter, treasurer, and others. From a judgment for defendants, the plaintiffs appeal.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against George Fornear. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Peter Buczck. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Harry B. Colvin. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ed Hunter. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Silas N. Taylor. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against the F. W. Cook Brewing Company. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan'Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against William H. Taylor. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben F. Whittington. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Louis Atkielski. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit. Court, William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Tom Watson. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Thomas Mills. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against John F. Kramer. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben F„ Whittington. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben Gomerie. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben Stank. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Ben F. Whittington. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Tom Watson. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the' State of Indiana against George Reeves. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against the AnheuserBusch Brewing Company. From a. judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana, against Ben F. Whittington. From a judgment quashing the indictment, the State appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Tom Watson. From a .judgment quashing the indictment, the State appeals.</p>

From Pike Circuit Court; John L. Bretz, Judge. Action by the Fidelity and Casualty Company of New York against the Jasper Veneer Mills and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Sam Marlowe. From a judgment quashing the indictment, the State appeals.</p>