Volume 37 — Indiana Appellate Court Reports

<p>Prom Madison Circuit Court; John F. McClure, Judge.</p> <p>Suit by Elijah A. Henby against Georgie A. God-man. Prom a decree for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint. — Negligence. — Gas Explosions. — A complaint showing that defendant gas company in turning on plaintiff’s gas discovered a leak between the house valve and the street valve; that defendant in turning off such gas preparatory to repairs turned off the house valve instead of the street valve; that the plumber, thinking that such company had turned off the gas at the street valve, began his work of repairs and in some manner unknown to the plaintiff occupant, the gas exploded, causing injuries to plaintiff, shows that such defendant was guilty of negligence, p. 9.</p> <p>2. Negligence. — Proximate Cause. — Anticipation of Injuries.— Actionable negligence must be such that an ordinarily prudent person would anticipate that some person in the exercise of a legal right might be injured thereby, and not that the precise injury sued for should happen, p. 10.</p> <p>3. Same. — Proximate Cause. — Gas Explosion. — Where plaintiff, the tenant of a house, requested defendant gas company to turn on the gas, and defendant after turning on the street valve discovered a leak between such valve and the house valve, and then turned off the house valve awaiting repairs by the owner, the fact that the plumber ignited the leaking gas inadvertently does not prevent defendant’s liability, since where injury results from two negligent acts, both actors are liable. p. 10.</p> <p>4. Same. — Turning on Gas. — Leaks.—Failure to Turn Off.— Where a gas company turns on its gas with the knowledge that the plumbing has lately been tested and found safe, but such company ascertains that there is a leak therein, a failure by such company to turn off such gas constitutes negligence, p. 11.</p> <p>5. Trial. — Answers to Interrogatories. — Gas Explosions. — Where the answers to interrogatories to the jury show that defendant gas company turned on the tenant’s gas, discovered a leak, failed to turn off the gas, notified tenant to let it alone and defendant would repair it, and that the owner’s plumber, without the tenant’s knowledge, undertook to repair the plumbing, and in doing so ignited the gas, injuring tenant, the general verdict for tenant is not thereby overthrown, p. 13.</p> <p>6. Same. — Answers to Interrogatories. — Failure to Show by Whom Gas Was Ignited. — Where the answers to interrogatories to the jury show that defendant gas company negligently failed to turn off the gas after discovering a leak, a failure by the tenant to prove who ignited the gas, which exploded and caused tenant’s injuries, does not overthrow a general verdict in tenant’s favor. McGahan v. Indianapolis Nat. Gas Co., 140 Ind. 335, distinguished, p. 13.</p> <p>7. Evidence. — Photographs. — Preliminary Proof. — Photographs are admissible in evidence after preliminary proof of correctness is made, and it is not material that the witness giving such preliminary proof saw the taking of the photographs, p. 14.</p> <p>8. Trial. — Instructions.—Covering Only Branch of Case. — The trial court may, in an instruction, set out the contentions of parties on a single branch of the case without including the contentions in the whole case. p. 14.</p> <p>9. Same. — Instructions.—Invasion of Province of Jury. — An instruction that “there is some proof tending to show” a certain fact does not invade the province of the jury by leading the jury to believe such fact to be proved, p. 15.</p> <p>10. Same. — Instructions.—Refusal to Give. — Answers ■ to Interrogatories. — Harmless Error. — The refusal to give a requested instruction is harmless where the answers to the interrogatories to the jury show the facts assumed therein are true. p. 15.</p> <p>11. Same. — Instructions Requested Covered by Those Given.— The refusal to give an instruction ^.lready substantially given in other instructions is not error, p. 16.</p>

<p>Erom Gibson Circuit Court; O. M. Welborn, Judge.</p> <p>Suit by Garrard M. Emerson as administrator of tbe estate of Alvin H. Embree, deceased, against Albert B. Embree. Erom a decree for plaintiff, defendant appeals.</p>

<p>1. Pleading. — Complaint. — Injunction. — Gas-and-Oil Lease. —Exhibits.—Where the owners of the fee bring a suit for injunction against the life tenant and her lessee to prevent their taking and removing oil and gas from the land, the lease so executed is not a proper exhibit to the complaint, and the absence of such does not affect the sufficiency of the complaint. p. 28.</p> <p>2. Estates. — Real.—Gas and Oil. — Injunction.—Waste.—Gas and oil, not reduced to possession, are real estate, and belong to the owners of the fee who may protect same by injunction, the taking of same by the life tenant being waste, p. 30.</p> <p>3. Injunction.- — Cutting Timber. — Life Tenant. — The owners of the fee may, by injunction, prevent the life tenant from cutting . and removing timber from their lands, p. 30.</p> <p>4. Estates. — Life Tenants. — Right to Use of Gas and Oil Wells. —Where the owner of the fee has oil and gas wells in operation and a life estate is afterwards created, the life tenant will be entitled to the use of, or royalty from, such wells, but such tenant has no right to begin operations nor to lease to others the right to do so. p. 31.</p> <p>5. Injunction. — Life Tenants. — Remaindermen.-—The fact that the oil and gas will be exhausted before remaindermen will come into possession is no reason to prevent their enjoining the life tenant from boring wells to take out the gas and oil. p. 31.</p>

From Newton Circuit Court; Charles W. Hanley, Judge. Action by John E. Wild and another against the Board of Commissioners of the County of Newton. From a judgment for plaintiffs, defendant appeals, certain taxpayers joining with such board as appellants.

From Decatur Circuit Court; Francis T. Rord, Judge. Fiual report of Daniel W. Weaver as administrator of the estate of Martha J. Cray, deceased, to which James Cray excepts. From a judgment in favor of the exceptor, the administrator appeals.

<p>Erom Hancock Circuit Court; Fdward W. Felt, Judge.</p> <p>Survey by Winfield Powell. Erom a judgment of the circuit court sustaining suck survey, Martha A. Wilson appeals.</p>

<p>Erom Marion Circuit Court (12,871); Henry Clay Allen, Judge.</p> <p>Action by Cassius M. O. Willis as administrator of the estate of Charles A. Taylor, deceased, against the Metropolitan Life Insurance- Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Vermillion Circuit Court; A. F. White, Judge.</p> <p>Action by Jacob W. McGlosson against the Seelyville Coal & Mining Company. From a judgment for plaintiff, defendant appeals. (For decision of Supreme Court, see 166 Ind. —.)</p>

<p>1. Eminent Domain. — Streets.—Municipal Corporations. — Towns have the right to exercise the power of eminent domain for the widening of streets but until the statutes prescribing the method of condemnation have been fully complied with, such towns have no right to take lands for such purposes, p. 58.</p> <p>2. Injunction. — Municipal Corporations. — Streets.—Injunction lies to prevent a municipal corporation from taking plaintiff’s lands for the purpose of widening its street when no proceedings have been taken to acquire such lands, p. 58.</p> <p>3. Same. — Appropriation of Lands. — Adequate Remedy at Law. —Trespass.—The law affords no adequate remedy by an action for damages in a case where a town is threatening to appropriate plaintiff’s lands for street purposes, injunction being the only effectual remedy, p. 58.</p>

<p>1. Judgment. — Res Judicata. — Highways.—Petition to Establish by User. — The denial by the board of commissioners of defendants’ right to have a certain way established as a highway by user is not res judicata as to defendants’ right to use such way nor as to plaintiff’s right to close such way. p. 70.</p> <p>2. Highways. — Twenty Years’ User. — Consent.—Statutes.—In an action involving the question whether a certain way is a public highway, the fact of its public use for twenty years is, as to such action, conclusive of its being a public highway, whether used with or without the consent of adjoining landowners. p. 70.</p> <p>3. Highways. — Use. — Equitable Estoppel. — Where adjacent owners laid out a lane on the line between them, connecting with the public highway, and kept it open and improved, erected fences on the sides, allowed its use by the public, knew that neighbors were erecting valuable buildings in such manner as to rely upon an outlet thereby, and intending purchasers, after being told by such neighbors that it was public and after observance of all the conditions, in good faith purchased lands relying upon such appearances and representations, such adjacent owners are equitably estopped from preventing the use of such way by such purchasers, p. 70.</p> <p>4. Same. — Dedication.—Intention.—Inferences from Conduct.— The intent necessary to dedicate lands to public use for highway purposes may be inferred from conduct, p. 71.</p> <p>5. Same. — Dedication. — Acceptance. — Work by Public. — Acceptance of a highway dedicated to the public may be shown by public use, without any public work on such way, and no specific length of time is necessary to a valid dedication, assent by the landowner, and public use so long that a denial of the right to such use would discommode the public, being all that is necessary to be shown, p. 71.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Action by Vetis E. Kagy against tbe Western Union Telegraph Company. Erom a judgment for defendant, plaintiff appeals.</p>

<p>Erran Henry Circuit Court; John M. Morris, Judge.</p> <p>Action by the McCormick Harvesting Machine Company against Earl Hinchman. Erran a judgment for defendant, plaintiff appeals.</p>

<p>Erom Morgan Circuit Court; Joseph W. Williams, Judge.</p> <p>Action by Arthur W. Doty against the New Castle Bridge Company.' Erom a judgment for plaintiff, defend-</p> <p>ant appeals. (On 'transfer, see 168 Ind. -.)</p>

<p>From Randolph Circuit Court; J. W. Macy, Judge.</p> <p>Action by Richard Ladd against the Muncie, Hartford & Ft. Wayne Railway Company. From a judgment on a verdict for plaintiff for $800, defendant appeals.</p>

<p>From Hancock Circuit Court; Edward W. Felt, Judge.</p> <p>Prosecution by the State of Indiana against Henry White: From a judgment of conviction, defendant appeals.</p>

<p>Appeal and Erroe. — Assignment of Errors. — Motion to Dismiss Appeal. — Waiver.—Where the error assigned is, that the trial ■ court erred in sustaining defendants’ demurrer and rendering judgment, no question is presented; and the fact that an appellee failed to move to dismiss such appeal until after the expiration of the time for filing its brief is not a waiver of its right to a dismissal.</p>

<p>From Grant Circuit Court; PL. J. Paulus, Judge.</p> <p>Prosecution by the State of Indiana against Mamie Clark. From a judgment quashing the affidavit, the State appeals.</p>

From Hancock Circuit Court; Thomas J. Cofer, Special Judge. Action by William Higgins as administrator of the estate of Michael Higgins, deceased, against Amos D. McCormick and another. From a judgment for plaintiff, defendants appeal.

From Allen Circuit Court; E. O’Eowrke, Judge. Action by the’ Nichols & Shepard Company against Henry Berning and another. From a judgment for defendant Berning on his cross-complaint, plaintiff appeals.

From White Circuit Court; Truman F. Palmer, Judge. Action by the State of Indiana, on the relation of Jasper L. Ackerman as county auditor of White county, against James P. Karr and another. From a judgment for defendants, plaintiff appeals.

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Action by Henry B. Ledbetter against Alvareze Coggesball and another. . Erom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal and Error. — Vacation Appeal. — Service of Notice on Appellee’s Attorney. — Sufficiency.—Notice of a vacation appeal served upon appellee’s attorney of record is sufficient unless appellant has received notice, prior to such service of notice, that such attorney has been discharged by appellee.</p>

<p>1. Descent and Distribution. — Illegitimate Children. — Common Law. — At the common law an illegitimate child was not an heir of its deceased father, p. 129.</p> <p>2. Same. — Illegitimate Children. — Statutes.—Under §2630 Burns 1901, §2475 R. S. 1881, Acts 1853, p. 78, §1, an illegitimate child could inherit from its father only where such father left no legal heirs within the United States, nor legitimate children without the United States, p. 129.</p> <p>3. Same. — Illegitimate Children. — Statutes.—Repeal.—The act of 1901 (Acts 1901, p. 288, §2630a Burns 1901), providing that illegitimate children shall be heirs of their fathers under certain circumstances, repeals the act of 1853 (Acts 1853, p. 78, §1, §2630 Burns 1901, §2475 R. S. 1881) upon the same subject, p. 130.</p> <p>4. Words and Phrases.- — “Acknowledge.”—The word “acknowledge” means to admit, to own, to confess or to recognize a truth or fact. p. 131.</p> <p>5. Statutes. — Construction.—Meaning of Words. — In the construction of a statute words are to be given their ordinary meaning unless that would defeat the manifest intent, p. 132.</p> <p>6. Descent and Distribution. — Illegitimate Children. — Burden of Proof. — The burden of proof to establish that plaintiff, is the illegitimate child of her father and that he acknowledged her to be his child, is upon plaintiff, p. 132.</p> <p>7. Same. — Illegitimate Children.- — Acknowledgment.—Evidence.— Where decedent told respective witnesses that the plaintiff, an illegitimate child, “was dead sure mine;” “was his’n;” was the only child he had; “she [plaintiff’s mother] had had a child and it was his’n,” acknowledgment of paternity is sufficiently shown, there being no contradictory evidence, p. 132.</p> <p>8. Same. — Heirs.—When Persons Become. — A person becomes an heir at the death of the ancestor, and not before, p. 134.</p> <p>9. Statutes. — Remedial.—Construction.—Descent and Distribution. — Illegitimate Children. — Statutes providing that under certain circumstances illegitimate children shall be heirs of their fathers are remedial and should be liberally construed, p. 134.</p> <p>10. Same. — Retroactive.—Descent and Distribution. — Illegitimate Children. — Under §2630a Burns 1901, Acts 1901, p. 288, an illegitimate child, acknowledged by the intestate ancestor to be his, such ancestor leaving no legitimate children or descendants thereof, inherits such ancestor’s estate, although such ancestor’s acknowledgment of such child occurred before the taking effect of such statute, and not afterwards, pp. 134, 138.</p>

<p>Erom Perry Circuit Court; C. W. Cook, Judge.</p> <p>Suit by John H. Lee as township trustee of Tobin School Township against James M. Baggerly and another. From a decree for plaintiff, defendants appeal.</p>

<p>Building and Loan Associations. — Mortgages.—Misrepresentations. — Fraud.—Opinions.—Where defendant executed his bond and mortgage to a building and loan association, and received a certificate of stock therefrom, which bond, mortgage and certificate obligated defendant to make 60 payments on such stock according to the by-laws, and such by-laws provided that as soon as such payments and the profits thereon were sufficient to make such stock worth par such stock would cancel such loan, the fact that plaintiff’s agént represented, and defendant relied thereon, that such 60 payments would mature such stock and cancel said loan, constitutes no defense, being a mere opinion upon which defendant had no right to rely. Hartman v. International Bldg., etc., Assn., 28 Ind. App. 65, distinguished.</p>

<p>1. Appeal and Error. — Pleadings.—Special Findings.- — -Same Questions Presented. — Where the special findings show the same facts as stated in the pleadings, a decision on the special findings renders useless a decision on the pleadings, p. 155.</p> <p>2. Landlord and Tenant. — Contracts.—Gas-and-Oil Leases.— Right to Determine. — Where the landlord grants to his lessee, “its successors and assigns,” the exclusive right to explore for gas and oil on his land, such lessee or assigns to drill a well within six months or thereafter furnish the landlord free gas until said well is drilled or the property reconveyed or the lease forfeited by its terms, and the assignee did not put down such well within the time but did furnish such free gas which was accepted, the landlord could not, without a demand and the giving to such assignee of a reasonable time thereafter to sink a well, arbitrarily refuse to take such free gas and terminate such contract, p. 158.</p> <p>3. Trial. — Venire de Novo. — Where the special findings fully cover the facts in issue, a motion for a venire de novo should be overruled, p. 160.</p> <p>4. New Trial. — As J/ Right. — Injunction.—Quieting Title.— Statutes. — A new trial as of right under §1076 Burns 1901, §1064 R. S. 1881, is not demandable in a suit for injunction where plaintiff also incidentally asks to have his title quieted. p. 160.</p>

<p>Landlord and Tenant. — Gas-and-Oil Leases. — Assignees.—Personal Liability. — Receivers.—Conveyances.■—Where a receiver of a corporation, with the written consent of all parties concerned, petitioned the court to permit such receiver to transfer to a new corporation all of the property and assets of the' old on condition that such new corporation discharge certain liabilities against the old corporation and the receiver, which transfer was ordered made and the transfer confirmed, and a part of the assets was a gas-and-oil lease involving a liability for certain payments by’the lessee or assignee, and such lease was afterwards assigned to defendants, they became personally liable for such payments, whether they took possession and complied with other conditions of such lease or not, their chain of title being perfect and such covenants running with the title.</p>

<p>Erom Kosciusko Circuit Court; Edgar Raymond, Judge.</p> <p>Action by Charles A. Bash against James Hay and another. From a judgment on a verdict for plaintiff for $3,000, defendants appeal.</p>

Erom Montgomery Circuit Court; J oseph M. Babb, Special Judge. Suit by James B. Clow and others against James S. Brown and others. Erom a decree for part of their claim, plaintiffs appeal.

<p>From Perry Circuit Court; G. W. Cook, Judge.</p> <p>Suit by Adolph Zuelly and others against Martin F. Casper and another. From a decree for defendants, plaintiffs appeal.</p>

<p>Erom Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>Action by Edmond H. Hacker against the Muncie Pulp Company. From a judgment on a verdict for plaintiff for $3,000, defendant appeals.</p>

<p>1. Husband and Wipe. — Alienation.—Action for, by Wife. — A married woman has a right of action against any person who alienates her husband’s affections, p. 215.</p> <p>2. Same. — Alienation.—Basis of Action for. — The basis of an action by the wife for the alienation of her husband’s affections is the loss of consortium, separation being unnecessary, p. 216.</p> <p>3. Pleading. — Complaint.—Alienation.—Malice.—In án action by a wife against her mother-in-law for the alienation of the affections of such wife’s husband, her complaint must show malice on the part of such mother-in-law, the presumption being that her acts were for the best interests of her child, p. 217.</p> <p>4. Damages. — Punitive.—Alienation.—Exemplary or punitive damages may.be given in an action for the alienation of the affections of husband or wife. p. 217.</p> <p>5. Judgment. — Motions in Arrest.- — Amended Complaint.— Appeal and Error. — Where an amendment of the complaint is permitted after a motion for a new trial is overruled, a motion in arrest filed thereafter will be considered on appeal as directed to the amended complaint, p. 217.</p> <p>6. Pleading. — Complaint. ■— Amendments. — Where an amendment, asked after the overruling of a motion for a new trial, does not materially change the issues, it should be allowed. p. 218.</p> <p>7. Husband and Wife. — Alienation.—Affections.—Presumptions. ■ — -Burden of Proof. — The presumption is that the husband has affection for his wife, and the burden is on defendant, in a case of alienation, to prove the contrary, p. 218.</p> <p>8. Pleading. — Complaint. — Alienation.- — Initial Attack After Verdict. — Where the intial attack on a complaint for alienation is made after verdict, such complaint alleging that the wife was compelled to leave the husband on account of cruel and inhuman treatment, but not setting out specific acts thereof, the presumption obtains that proof of such acts was given on the trial, p. 219.</p> <p>9. Appeal and Error. — Appellate Court Rules. — Briefs. — A failure by appellant to set out in her brief the portions of the record questioned, together with her failure to set out propositions or points, as required by Appellate Court rule 22, is a waiver of such alleged errors, p. 219.</p>

From Lawrence Circuit Court; James B. Wilson, Judge. Suit by the Equitable Trust Company against Susie Torphy and another. From a decree for plaintiff for part of its claim, it appeals.

<p>1. Trial. — Instructions.—Applicability of, to Pleadings and Evidence. — Instructions requested must be shown to be applicable not only to the pleadings but also to the evidence, p. 227.</p> <p>2. Same. — Instructions.—Sales.—Conditional.—Return.—An instruction refused, that if defendant did not return a wind pumping outfit within a reasonable time his right to return same would be forfeited and the sale would be absolute, is not applicable where the evidence showed that plaintiff was to retake such outfit if, on a sixty-day trial, it did not satisfy defendant, p. 227.</p> <p>3. Sales. — Conditional.—Notice of Rejection. — Where plaintiff sold to defendant, on a sixty-day trial, a wind pumping outfit, and defendant within such sixty days notified plaintiff that it was unsatisfactory, no sale was perfected, p. 228.</p> <p>.4. Same. — Conditional.—Damages.—Responsibility for. — Where plaintiff erected on June 16, a wind pumping outfit, the defendant to pay for same if satisfactory at the end of a sixty-day trial, and on August 15, defendant gave plaintiff notice that it was unsatisfactory, defendant is not liable, in the absence of wilful misconduct; for damages to such outfit occurring in December, p. 228.</p> <p>5. Trial. — Instructions.—How Considered. — The court is not required to state in one instruction the complete law of the case, but if the instructions considered in their entirety fairly present the case to the jury, there is no available error, p. 229.</p> <p>6. Same. — Instructions Refused Covered by Those Given.— Where refused instructions are covered by those given, no error is shown, p. 231.</p>

From Allen Circuit Court; James C. Branyan, Special Judge. Action by the State of Indiana, on the relation of Cain Baker, against Jacob Funk as county treasurer of Allen county. From a judgment for plaintiff, defendant appeals. (On transfer, see 166 Ind. 455).

<p>1. Railroads. — Tickets.—Contracts.—Validity.—A provision in a railroad ticket that such ticket shall not be good for the return trip unless the holder satisfies the agent of the issuing company that he was the original purchaser, is valid and enforceable, but the passenger’s right to transportation is not affected by an arbitrary refusal of such agent to be satisfied, p. 236.</p> <p>2, Same. — Tickets. — Identification. — Contracts. ■— Where the holder of a railroad ticket, providing that the holder shall satisfy the issuing company’s agent that he was the original purchaser, by writing his name or by other means, fails to satisfy such agent by writing his name, he has the right to identify himself otherwise, p. 236.</p> <p>3. Pleading. — Complaint.—Railroads.—Tickets.—Wrongful Refusal to Honor. — Torts.—Contracts.—An action by a passenger on account of the defendant railroad company’s wrongful refusal to honor his ticket and his consequent expulsion from the station because he could not “satisfy” defendant’s agent that he was the original purchaser thereof, sounds in tort, and not in contract, p. 237.</p> <p>4. Trial. — Interrogatories to Jury. — Railroads.—Wrongful Refusal to Honor Tickets — Answers to the interrogatories to the jury, that plaintiff offered to the agent of the issuing railroad company identification that he was the original purchaser of his ticket only by his signature, do not control a general verdict for plaintiff, where plaintiff was prevented by such agent from</p> <p>■ offering further means of identification, p. 238.</p> <p>5. Damages. — Excessive. — Railroads. —■ Wrongful Refusal to Honor Ticket. — Where defendant railroad company wrongfully refused to honor plaintiff’s ticket and by reason thereof he was forcibly and roughly expelled from defendant’s station and threatened with arrest in the presence of a great number of people, a verdict for $2,000 is' excessive, there being no injury to health or loss from business, p. 238.</p>

<p>Landlord and Tenant. — Gas-and-Oil Leases. — Contracts.—Termination. — Where the landlord contracted with lessee, that if no gas or oil well was completed in thirty days the grant should be void unless the lessee should pay $143, quarterly in advance, for each year of delay, and such lessee within the thirty days paid the lessor for a' certain extension of time during which he sank a well but found nothing, and removed most of the machinery, such lease became void, and the fact that the lessee entered upon such land three years later and, without the payment of such rents, or any other agreement, sank a paying well, did not revive such lease.</p>

<p>1. Evidence. — Bonds.—Deputy Marshal. — Appointment.—Where defendant deputy marshal, in the discharge of the duties of his office, unlawfully beat plaintiff, his official bond is admissible in evidence in an action on such bond for damages for such injury, though there was no record made by the town trustees of his appointment or of his length of term and no approval of his bond, where the evidence introduced justified an inference that such appointment was made, the bond executed and delivered and that the principal therein had acted as deputy marshal for three or four months prior thereto, p. 246.</p> <p>2. Municipal Corporations. — Towns.—Trustees.—Deputy Marshal. — Appointment.—The board of trustees of a town have the power to appoint a deputy marshal (§§4350, 4351 Bums 1901, Acts 1893, p. 293, §§1, 2). p. 247.</p> <p>3. Officers. — Deputy Marshal. — Bight to Deny Capacity. — -Defendant, who has been acting deputy marshal for several months, is estopped, in an action on his official bond for damages, from denying that he was an officer de jure. p. 247.</p> <p>4. Same. — Appointment.—Collateral Attack. — Where defendant has been serving as deputy marshal for several months, his appointment is not subject to a collateral attack, p. 247.</p> <p>5. Same. —• Bonds. — Approval. ■ — • Liability. — Where defendant deputy marshal executed his bond with surety to the town, the fact that the town trustees failed to approve such bond does not release the surety, p. 247.</p> <p>6. Same. — Appointment. — Failure to Designate Term. — The failure of the town trustees to designate the term for which a deputy marshal was appointed does not release him or his surety on his official bond where it is shown that he was acting under such appointment, p. 247.</p>

<p>From Miami Circuit Court; Joseph N. Tillett, Judge.</p> <p>Condemnation procedings by the Indianapolis Northern Traction Company against Peter Dunn and another. Erom a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and Error. — Elevators.—Negligence.—Weighing Evidence. — -Where there is some evidence that defendant was negligent in the maintenance of an elevator in which plaintiff was injured, the decision of the trial court will not be disturbed. p. 260.</p> <p>2. Same. — Elevators.—Contributory Negligence. — Weighing Evidence. — Where there is evidence from which the jury could find that plaintiff was not guilty of contributory negligence in stepping into an elevator shaft, thereby receiving injuries, a verdict for plaintiff will not be disturbed on appeal. Cleveland, etc., R. Co. v. Berry, 152 Ind. 607, held inapplicable, p. 260.</p> <p>3. Evidence. — View of Premises by Jury. — The jury have a right to treat their view of the premises, ordered by the judge, as evidence in the cause, p. 261.</p> <p>4. Appeal and Error. — Instructions.—Exceptions.—How Shown. —Where an instruction in the record contained at its close the words: “Given and excepted to May 26, 1904, James M. Leathers, judge,” and it is not shown by the record or bill of exceptions otherwise that any exception was reserved, no question thereon is saved. Indiana, etc., R. Co. v. Bundy, 152 Ind. 590, followed, p. 262.</p>

From Hendricks Circuit Court; Thomas J. Gofer, Judge. Action by Nellie Reeder, upon whose death after trial, John C. Reeder as administrator of her estate was substituted as plaintiff, against the Indianapolis & Martinsville Rapid Transit Company. From a judgment on a verdict for plaintiff, defendant appeals.

<p>From Cass Circuit Court; John S. Lairy, Judge.</p> <p>Condemnation proceedings by the Indianapolis Northern Traction Company against William Ramer. From a judgment for defendant plaintiff appeals.</p>

<p>Appeal and Error. — Parties. — Joint Assignment. — Where no judgment was rendered either for or against two of the appellants, and the assignment of errors is joint, no question is presented on appeal.</p>

From Posey Circuit Court; Alexander Gilchrist, Special Judge. Suit by Clarence L. Fifer and others against Olive Jane Bachels and others. From a decree for defendants on the cross-complaint, plaintiffs appeal.

<p>Erom Superior Court of Marion County (69,271) ; James M. Leathers, Judge.</p> <p>Suit by John Monaghan against the City of Indianapolis and others. From a decree for defendants, plaintiff appeals.</p>

<p>1. New Trial. — Criminal Law. — Evidence.—Statutes.—Under subdivision nine, §1911 Burns 1901, §1842 R. S. 1881, insufficiency of the evidence is not a ground for a new trial in a criminal case. p. 324.</p> <p>2. Same. — Criminal Law. — Evidence.—Statutes.—That the decision is contrary to law, is a ground for a new trial in a criminal case under subdivision nine, §1911 -Burns 1901, §1842 R. S. 1881, and a failure of the proof to sustain the charge renders the decision “contrary to law.” p. 324.</p> <p>3. Statutes. — Construction.—Intention.—Criminal Law. — Courts, in the construction of criminal statutes, will look to the evil that was intended to be remedied, p. 327-.</p> <p>4. Criminal Law. — Intoxicating Liquors. — Sales.—Druggists.— Where a druggist, who was also a practicing physician, filled a practicing physician’s written prescription, in good faith, for a half-pint of whiskey for such physician’s patient, to be taken a teaspoonful every hour, and such whiskey was so taken, a conviction for an unlawful sale of whiskey under §7283j Burns 19.01, Acts 1895, p. 248, §9%, can not be upheld, though such practicing physician had no license at the time to practice medicine, p. 327.</p>

<p>From Scott Circuit Court; Willard New, Judge.</p> <p>Suit by Noble J. Hays against Jonathan C. Cline. From a decree for plaintiff, defendant appeals.</p>

Erom Clinton Circuit Court; Joseph Olaybaugh, Judge. Condemnation proceedings by the Indianapolis & Northwestern Traction Company against Thomas W. Douglas and others. From a judgment for defendants for less than their claim, they appeal.

<p>Prom Marion Circuit Court (9,797) ; Henry Glay Allen, Judge.</p> <p>Suit by Harvey Catterson and another against George W. Hall and others. From the decree rendered, plaintiffs appeal.</p>

<p>Erom Grant Superior Court; B. F. Harness, Judge.</p> <p>Action by Anna E. Hancock against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and Error. — Motion to Withdraw from Highway Petition. — Exceptions.—Where certain signers of a highway petition moved to withdraw their names from such petition, but no action was taken thereon and no exception of any kind taken, no question is presented, p. 366.</p> <p>2. Same. — Appellate Court Rules. — Briefs.—Where appellant fails to set out literally or substantially the questioned complaint in his brief, and suggests no objection thereto, no question thereon is presented, p. 367.</p> <p>3. Highways. — Viewers’ Reports. — Enclosures.—Viewers’ reports setting out the established line of the proposed highway and stating that certain enclosures were found, the owners of one of which consented to the establishment of the highway and the other refused consent, are in accordance with the statute (§6743 Burns 1901,’ Acts 1899, p. 116, §1). p. 367.</p> <p>4. Appeal and Error. — Highways.—Enclosures.—Judgment.— Form of. — How Questioned. — No error is presented on appeal by assigning error on the form of a judgment which establishes a highway but says nothing of enclosures existing, a motion to modify such judgment being the proper practice, p. 367.</p> <p>5. Same. — Presentation of Cause. — Record.—Exceptions.—Legislative Powers. — The manner of the presentation of a cause on appeal is for the determination of the appellate court, but the manner of making the record and saving exceptions is for the legislature, p. 368.</p> <p>6. Same. — Instructions.—Record.—Statutes.—To save questions on instructions under the act of 1903 (Acts 1903, p. 338), attorneys must comply substantially with the provisions thereof, p. 368.</p> <p>7. Same. — Instructions.—Record.—Statutes.—A filing with the clerk of the instructions in a cause twelve days after the verdict does not bring such instructions into the record by a bill of exceptions within the terms of the statute (§641i Burns 1905, Acts 1903, p. 338, §9). p. 370.</p> <p>8. Same. — Admission of Evidence. — Appellate Court Rules. Where appellant’s brief fails to set out the evidence admitted over objection, and fails to cite the record where it may be found, no question thereon is presented, p. 370.</p> <p>9. Appeal and Error. — Evidence.—Recital of. — Briefs.—Where appellant sets out in his brief simply the conclusions drawn from the evidence by counsel, no question is presented on the sufficiency of the evidence, p. 370.</p>

<p>From Warrick Circuit Court; Elbert M. Swan, Judge.</p> <p>Action by Sue R. Hall against the Grand Lodge of the Ancient Order of United Workmen. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Allen Circuit Court; E. O’Rourke, Judge.</p> <p>Action by Oliver Hebert and another against the Equitable Life Insurance Company of Iowa. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Error. — Vacation Appeal. — Parties.—Appellant, in a vacation appeal, must make all coparties parties to the appeal and name them in the assignment of errors, p. 379.</p> <p>2. Same. — Precipe. — Part of Record. — Presumptions.—Where appellant in his precipe called for only that part of the record which aifected one of several defendants, there is no presumption that such others were not properly before the court and aifected by the proceedings, p. 380.</p>

<p>From Steuben Circuit Court; Charl'es E. Emanuel, Special Judge.</p> <p>Prosecution by tbe State of Indiana against Robert Cameron. From a judgment of conviction, defendant appeals.</p>

<p>From Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by James Lay against the American Quarries Company. From a judgment for plaintiff, defendant appeals. (Transfer denied, see 166 Ind. 234.)</p>

<p>From Greene Circuit Court; Orion B. Harris, Judge.</p> <p>Action by Charles Leich and others against Joseph W. Yakey. From a judgment for plaintiffs, defendant appeals.</p>

<p>Erom Scott Circuit Court; Willard New, Judge.</p> <p>Suit by Alice Warner against William L. Jennings. Erom a decree for defendant, plaintiff appeals.</p>

<p>1. Criminal Law. — Baseball.—Sunday.—Fee.—Where the management of a Sunday game of baseball charged fifteen cents for seats in the grandstand and ten cents for “bleachers,” there is a violation of law, thé claim that the fee was paid for the “seats” and not for the game being a subterfuge or-an attempt to evade the statute, p. 401.</p> <p>2. Same. — Baseball.—Sunday.—Fee.—Where a Sunday baseball game was not free and an admission was charged to some of the spectators, the law is violated, though some may witness such game without the payment of any fee. p. 401;</p>

From Pulaski Circuit Court; William, A. Foster, Special Judge. Claim by. St. Joseph County Savings Bank against Arthur T. Randall and another, as administrators of the estate of Jennie A. Gray, deceased. From a judgment in . favor of defendants, plaintiff appeals.

<p>Erom Daviess Circuit Court; H. Q. Houghton, Judge.</p> <p>Action by LaEayette Baker against tbe Southern Indiana Railway Company. Erom a judgment on a verdict for plaintiff for $375, defendant appeals.</p>

<p>1. Pleading.- — Complaint.-—Master and Servant. — Employers’ Liability Act. — A complaint showing that plaintiff was ordered to do certain work by defendant’s foreman, to whose order plaintiff was bound to and did conform, in reference to turning a channeling machine, and that in doing such work such foreman, without waiting for plaintiff’s signal to start, negligently gave an order to other workmen to turn such machine, thus catching plaintiff and crushing him before he could escape from his dangerous position, states a cause of action under §7083 Burns 1901, Acts 1893, p. 294. p. 415.</p> <p>2. Same. — Complaint. — Master and Servant. — Negligence.— Knowledge. — In an action by a servant for negligence it is not necessary to allege actual knowledge on the part of defendant’s foreman who negligently gave an order, by reason of which plaintiff was injured, proof of actual or constructive knowledge being sufficient to establish negligence, pp. 417, 419.</p> <p>3. Master and Servant. — Employers’ Liability Act. — Conforming to Orders. — Where a servant was employed to do certain work under the direction of a foreman, a part of which was to do certain things preparatory to turning a heavy machine, in the doing of which he was injured by reason of a negligent order of the foreman, he is considered in the doing of such things as conforming to the orders of such foreman. Grand Rapids, etc., R. Co. v. Pettit, 27 Ind. App. 120, distinguished. pp. 417, 420.</p> <p>4. Trial. — Instructions.—Requisites.—Instructions should briefly, plainly and concisely state the law applicable to the evidence as viewed upon the theories of plaintiff and defendant, p. 418.</p> <p>5. Same. — Instructions.—Covered by Those Given. — Where instructions requested are substantially covered by those given, no error is committeed in refusing those requested, p. 419.</p> <p>6. Same. — Interrogatories to Jury. — Right of Counsel to Discuss. — Counsel have the right to discuss interrogatories submitted to the jury and to argue that certain facts inquired about are established by the evidence in' a certain way. p. 419.'</p>

<p>1. Trial. — Instructions. — Carriers.• — Passengers.—Ejection.— Unnecessary Force. — An instruction that the carrier is liable for the use of unnecessary force in the ejection of a passenger is within the issues where one paragraph of the complaint alleges an assault and battery upon plaintiff after presentation of his ticket, and another paragraph, before time was given for a presentation of his ticket, especially where the jury was further instructed that a passenger must not only have his ticket but must tender it when demanded, p. 422.</p> <p>2. Trial. — Carriers. — Passengers. — Ejection.—Pleading.-—-Evidence* — Where a complaint alleges that the conductor of defendant company’s train forcibly ejected plaintiff and in so doing greatly bruised plaintiff about the head, face and body, evidence that plaintiff’s ear drum was injured and his hearing impaired is admissible, p. 423.</p>

<p>Erom Boone Circuit Court; Samuel R. Artman, Judge.</p> <p>Action by the Indiana Trust Company against Jefferson Township. From a judgment for defendant, plaintiff appeals.</p>

<p>Erom Wayne Circuit Court; W. O. Barnard, Special Judge.</p> <p>Action by Elmira J. Whitesell against Thomas J. Study. Erom a judgment for defendant, plaintiff appeals.</p>

<p>From Superior Court of Madison County; Henry O. Ryan, Judge.</p> <p>Action by John Mullen against Elmer Clifford and wife. Erom a judgment for defendants, plaintiff appeals.</p>

<p>From Wells Circuit Court; Edwin C. Vaughn, Judge.</p> <p>Suit by American Window Glass Company against tbe Indiana Natural Gas & Oil Company and others. From a decree for defendants, plaintiff appeals.</p>

Erom Johnson Circuit Court; W. J. Buckingham,, Judge. Action by Mary J. Dougherty against Henry Williams, as administrator of the estate of Adam S. Dougherty, deceased. Erom a judgment for plaintiff, defendant appeals. On motion to dismiss appeal.

<p>1. Contracts. — Sales. —• Enforcement. — A contract fixing the price and terms of a sale of sash weights governs the amount of recovery therefor unless there is some exception taking the case out of the general rule. p. 455.</p> <p>2. Same. — Manufacture of Goods. — Breach.—Where plaintiff contracted to sell to defendant all the sash weights it should make during the period of such contract reserving the “right to discontinue the making” thereof any time during such period, its exercise of such right of discontinuance was not a breach of such contract, p. 455.</p> <p>3. Same. — Restraint of Trade. — Monopolies.—Statutes.—A contract by which plaintiff agrees to sell all of the sash weights it should make during the “remainder of the year” to defendant, a manufacturer of sash weights, is not void as being in violation of §3312g Burns 1901, Acts 1897, p. 159, §1, providing that all contracts, by persons who “control the output of said article of merchandise,” made to prevent competition “in the importation or sale of articles imported into this State,”- shall be void, p. 455.</p> <p>4. Same. — Monopolies.—Common Law. — Test.—A contract by which plaintiff agreed to sell all of the sash weights it should make during “the- remainder of the year” to defendant, also a manufacturer of sash weights, is not void at the common law as monopolistic, the test being whether such contract is inimical to public interest, p. 457.</p> <p>5. Same. — Corporations.—Ultra Vires. — Public Duty. — A manufacturing corporation may lawfully contract its output for a limited time to one person, p. 458.</p>

Erom Superior Court of Marion County (67,077); James M. Leathers, Judge. Suit by Alexander W. Thomson against the Midland Portland Cement Company and others. Erom an order confirming a sale of certain property by defendant receiver, plaintiff appeals.

<p>1. Pleading. — Answer. — Verification. ■— Bills and Notes. — Indorsements. — Unauthorized.—An answer, in an action by the indorsee of a bank check, that the plaintiff derived title through an unauthorized indorsement by one claiming to be the agent of the payee, is sufficient and needs no verification, p. 465.</p> <p>2. Same. — Facts.—Conclusions.-—-A pleading setting out the facts is not rendered bad by surplusage consisting of the legal conclusions from such facts, p. 466.</p> <p>3. Bills and Notes. — Checks.—Title.—Unauthorized Indorsement. — The unauthorized indorsement of a bank check confers no title on the indorsee, p. 466.</p> <p>4. Same. — Checks.—-Title.—Unauthorized Indorsement. — Subsequent Indorsees. — Subsequent indorsees have no title as against the drawer of a check, where the first indorsement was unauthorized. p. 466.</p> <p>5. Same. — Negotiable.—Title.—Innocent Subsequent Indorsees.— Equities.- — An innocent subsequent indorsee ordinarily takes negotiable paper free from the equities between the original parties or prior indorsers, p. 467.</p> <p>6. Principal and Agent. — Salesman. — Authority to Indorse Checks. — An ordinary traveling salesman has no implied authority to indorse checks payable to his principal, p. 467.</p> <p>7. Bills and Notes. — Checks.—Unauthorized Indorsement. — Innocent Indorsees. — Loss.—The drawer of a check does not put it in the power of a third party to do a wrong, within the meaning of the law, when he draws a check to the payee and such third party without authority indorses the payee’s name thereon and such check passes in due course to a subsequent indorsee, p. 468.</p>

Erom Laporte Superior Court; J ames F. Gallaher, Special Judge. Suit by Alexander J. Campbell against Erancis E. Maitland and others. Erom a decree for plaintiff and for defendant John W. Reed, the other defendants appeal.

<p>Erorn Superior Court of Vanderburgh County; James T. Walker, Special Judge.</p> <p>Action by William S. Bollard against Charles E. Pittman and others. From a judgment for defendant Pittman, plaintiff appeals.</p>

From Wells Circuit Court; Edwin G. Vaughn, Judge. Final report of May D. Hartzell as administratrix of the estate of John T. Hartzell, deceased, to which George W. Hartzell and another except. From an order overruling such exceptions, exceptors appeal.

Erom Morgan Circuit Court; J oseph W. Williams, Judge pro tern. Action by Almeedie Bryan as administratrix of the estate of Joseph A. Bryan, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Erom a judgment for plaintiff, defendant appeals.

<p>1. Descent and Distribution. — Personalty. — Conversion. — Taking Title in Individual Name. — Property purchased by the husband with money belonging to the wife, on deposit in a bank at her death, equitably belongs, two-thirds to her children and one-third to such husband, p. 499.</p> <p>2. Contracts. — Family Settlements. — Consideration.—A contract executed by the children of decedent, the surviving husband and the second wife, in settlement of the property interests in the deceased wife’s estate, is supported by a sufficient consideration, p. 499.</p> <p>3. Pleading. — Complaint. — Trusts.—Conversion of Funds. — A complaint for the recovery of converted trust funds is good though it shows that by the terms of the contract creating the trust it shall continue until the death of the trustee, a cause of action arising immediately after the breach of such agreement by the trustee, and not after his death, p. 500.</p> <p>4. Contracts. • — • Family Settlements. — Consideration.—Widow’s Election. — Statutes.—A family settlement by the second wife, the husband and the children of the deceased first wife, of the property rights in the estate of such decedent, is supported by a valuable consideration as to such second wife, and she has no right under .§2665 Burns 1901, §2504 R. S. 1881, to a period of one year after such husband’s death to decide whether she will be bound by such contract of settlement, p. 500.</p> <p>5. Trial. — Motion.—Venire de novo. — Where the special findings follow the theory of a sufficient complaint, and contain the material facts therein alleged, a motion for a venire de novo because of defects therein should be overruled, p. 505.</p> <p>6. Appeal and Error.' — Weighing Evidence. — The Appellate • Court will not weigh conflicting oral evidence, p. 506.</p> <p>7. JUDGMENT. — Pleading.—Prayer for Lien. — Decree for Transfer of Title. — Where a complaint for the recovery of converted trust funds prays that a lien be declared therefor on certain real estate, the legal title to which is in a third party, a decree that the title thereto be vested in the trustee is without the issues, p. 506.</p>

<p>Erom Daviess Circuit Court; H. Q. Houghton, Judge.</p> <p>Suit by Silas M. Ketcham against Aramittie Williams and another. Erom a decree for plaintiff, defendants appeal.</p>

<p>From Olay Circuit Court; Presley O. Oolliver_, Judge.</p> <p>Action by Charles O. Burke against the Columbian Enameling & Stamping Company. From a judgment on a verdict for plaintiff for $1,091.66 2-3, defendant appeals.</p>

<p>From Criminal Court of Marion County (34,843) ; Fremont Alford, Judge.</p> <p>Prosecution by the State of Indiana against Fred Hoffmeyer. From a judgment of conviction, defendant appeals.</p>

<p>Erom Grant Circuit Court; U. J. Paulus, Judge.</p> <p>Action by John W. Wilson against Samuel Y. Ramage. Erom a judgment for plaintiff, defendant appeals.</p>

<p>From Ohio Circuit Court; George E. Downey, Judge.</p> <p>Action by Henry Stahle against the Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Divorce. — Alimony.—Question for Court. — The amount of alimony in a case of divorce is a question for the court, reviewable only in cases of abuse of discretion, p. 551.</p> <p>2. Contracts. — Antenuptial.—Validity.-—Antenuptial contracts, free from fraud or imposition, and not against public policy, are enforceable, p. 551.</p> <p>3. Husband and Wife. — Husband’s Duty of Support. — The husband is charged with the legal duty of supporting his wife to the extent of his ability, p. 551.</p> <p>4. Contracts. — Antenuptial.—Fixing Amount of Alimony. — Public Policy. — An antenuptial contract providing that upon separation for any cause the husband shall pay the wife $200 in settlement of all liability for alimony is contrary to public policy and void. p. 552.</p> <p>5. Divorce. — Alimony.—Decree.—Effect.—A decree of divorce necessarily settles both the marital and the property rights of the parties thereto, p. 553.</p>

<p>1. Pleading. — Cross-Complaint.—When Treated as Original.— Appeal and Error. — Where the parties at the trial treat a cross-complaint as the original complaint, it will be so considered on appeal, p. 554.</p> <p>2. Action. — Misjoinder. — Quieting Title. — Nuisance. — A demurrer for misjoinder of causes should be sustained where one paragraph of a complaint is for quieting title and another is for damages caused by a nuisance, but error in overruling same is by statute not reversible (§344 Burns 1901, §341 R. S. 1881). p. 554.</p> <p>3. Evidence. — Nuisance.—Sewers.—Damages for Construction of. — In an action for damages on account of the maintenance of a nuisance by a city, it is not competent to admit evidence of damages caused by the construction of a sewer across plaintiff’s lot, such damages being recoverable only in the proceeding for the construction of such sewer, p. 555.</p> <p>4. Nuisance. — Damages.—How Proved. — A complaint for damages for the destruction of property by a nuisance is proved by evidence showing the depreciation in value of such property because of such nuisance, p. 556.</p> <p>5. Evidence. — Nuisance.—Damages.—Opinions.—In an action for damages for the maintenance of a nuisance by a city, the question “What was the damage sustained by .reason of that sewer?” was incompetent because of including damages not properly included in the action and also because of eliciting a mere opinion and not a fact. p. 556.</p> <p>6. New Trial. — Nuisance.—Damages.—Evidence.—In an action for damages for the maintenance of a nuisance, where there is no legal evidence upon which to base a verdict for plaintiff, a new trial should be granted, p. 556.</p>

<p>[No. 5,092. Filed June 30, 1905. Rehearing denied October 10, 1905. Appeal to Supreme Court dismissed April 6, 1906.]</p> <p>1. Process. — Service by Leaving Copy. — Special Appearance.— Motion to Quash. — A sheriff’s return showing that summons was served upon defendant by leaving a certified copy thereof at defendant’s last and legal place of residence, in the absence of fraud, is conclusive against a collateral attack, p. 566.</p> <p>2. Appeal and Error. — Summons.—Return.-—-Motion to Quash. . —Who Can Take Advantage of. — -The overruling of a motion to quash the return of the sheriff to the summons,' by a party upon special appearance, can not be questioned on appeal by other parties who failed to question the service upon them, p. 566.</p> <p>3. Gaming. — Action to Recover Money Lost. — Parties. — The wife of the person losing money at gambling is not a necessary nor proper relatrix in an action by the State to recover such money, p. 566.</p> <p>4. Same.' — -Money Lost. — Beneficiary. — Husband* and Wife.— Judgment. — The wife is the exclusive beneficiary of a judgment recovered by the State for money lost by her husband at gambling, p. 566.</p> <p>5. Same. — Enforcement of Judgment for Money Lost. — Parties. —Husband and Wife. — The wife is the proper plaintiff to sue for the enforcement of a judgment recovered by the State for money lost by her husband at gambling, p. 567.</p> <p>6. Pleading. — Making New Parties. — Amendments.—Under §273 Burns 1901, §272 R. S. 1881, the court has power to permit others, who may be interested, to be made parties to an action by proper amendment, p. 567.</p> <p>7. Same. — Substitution of Plaintiffs. — Amendments.—Gaming.— It is proper for the trial court to permit the wife, who is the beneficiary of a judgment recovered by the State in an action to recover her husband’s money lost at gambling, to be substituted as plaintiff instead of the State in a suit for the enforcement of such judgment, such amendment making no change in the issues, p. 568.</p> <p>8. Evidence. — Judgment for State. — Gaming.—Action by Wife. —Variance.—A judgment in favor of the State in an action to recover money lost by a husband at gambling is competent evidence to sustain a suit by the wife for the enforcement, in her behalf, of such judgment, p. 569.</p> <p>9. Trial. — Special Findings. — Evidentiary Facts. — Appeal and Error. — Where the special finding of facts contains the facts material to the issue mingled with others immaterial or evidentiary, the judgment will not be disturbed on appeal where the material facts found support such judgment, p. 569.</p> <p>10. Same.' — Special Findings. — Inferences.—Trial courts are permitted to draw reasonable inferences from facts proved, and special findings embodying facts so inferred are legally sustained by the evidence, p. 569.</p> <p>11. Same. — Special Findings. — Motions to Make Additional.— New Trial. — Motions that the trial court make additional special findings are not recognized by the Indiana procedure, the ■remedy being a motion for a new trial, p. 570.</p> <p>12. Same. — Conclusions of Law. — Gaming. — Judgment for State. — Collection by Wife. — Conclusions of law, in a suit by the wife for the enforcement in her favor of a judgment in favor of the State in an action by the State to recover her husband’s money lost at gambling, that there is due the wife the amount evidenced by such judgment, is correct, p. 570.</p> <p>13. Appeal and Error. — Weighing Evidence. — The Appellate Court will not weigh conflicting oral evidence, p. 571.</p> <p>14. Same. — Briefs.—Failure to Cite Pages of Transcript. — The failure of appellants in their brief to cite the pages of the transcript where the objectionable evidence may be found is a waiver of any questions thereon, p. 571.</p> <p>15. New Trial.' — Evidence.—Disclaimer.—A defendant refusing to file a disclaimer and filing an affirmative answer can not complain on appeal that the evidence was insufficient to sustain a judgment against him when there was some evidence to support such judgment, p. 572.</p> <p>16. Fraudulent Conveyances. — Consideration.—Gaming.—Evidence. — A conveyance, without consideration, made to the grantor’s sister for the purpose of preventing a husband who had lost his money to such grantor at gambling from recovering same, is fraudulent as to the wife who is the beneficiary of a judgment in an action by the State for the recovery thereof, p. 572.</p>

<p>From Posey Circuit Court; Alexander Gilchrist, Special Judge.</p> <p>Action by Zillab Hogan against tbe Posey County Fire Association. From a judgment for plaintiff, defendant . appeals.</p>

From Hendricks Circuit Court; Thomas J. Gofer, Judge. Action by Reuben Prebster, as surviving partner of the firm of R. & C. Prebster, against Ellis M. Weaver and another. From a judgment for ■ plaintiff, defendant Weaver appeals. Affirmed.

<p>Erom Lawrence Circuit Court; James B. Wilson, Judge.</p> <p>Action by Emily Corps, as administratrix of the estate of George Corps, deceased, against the Southern Indiana Railway Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Erom Delaware Circuit Court; Joseph G. Leffler, Judge.</p> <p>* Suit by tbe Greer-Wilkinson Lumber Company against Joseph M. Steen and others. Erom a decree for defendants, plaintiff appeals.</p>

<p>1. Carriers. — Passengers.—Live-Stock Attendant. — An attendant riding on a freight-train in the car with his live stock, which is shipped under a contract for a fixed charge, including passage to the owner or attendant, is a passenger for hire. p. 601.</p> <p>2. Trial. — Pleading.—Proof.—Variance.—Plaintiff must recover secundum allegata et probata, p. 602.</p> <p>3. Same. — Railroads. — Collisions. — Questions for Jury. — Evidence. — Where the evidence showed that plaintiff, a live-stock attendant on a freight-train, was injured while his car was standing on the track, by a terrible jar which threw him against the car rendering him unconscious, the question whether such jar was caused by defendant company was for the jury, p. 603.</p> <p>4. Same. — Evidence.—Inferences.—It is not essential for plaintiff to prove every allegation of his complaint by direct and positive evidence, since the jury has the right to draw reasonable inferences from the facts proved, p. 603.</p> <p>5. Sam:e. — Railroads. — Passengers. — Injuries. — Res Ipsa Loquitur. — Injury to plaintiff while a passenger for hire on defendant’s railroad establishes a prima facie case of negligence, and the defendant, to escape liability, must show that such injury could not have been avoided by the highest practical care. p. 604.</p> <p>6. Railroads. • — ■ Passengers Riding- in Freight-Car. — Contributory Negligence.- — Assumption of Risk. — A live-stock attendant riding, by contract, on the car containing such stock neither assumes the risks of defendant’s negligence, nor is he guilty of contributory negligence, p. 605.</p> <p>7. Trial. — Evidence.—Custom.—Railroads.—Admitting the testimony of two witnesses, over objection, that they rode in stock-cars as attendants of live stock on defendant’s road, if erroneous, was harmless, p. 607.</p> <p>8. Same. — Instructions.—Contributory Negligence. — Burden of Proof.- — An instruction, that the burden of proof in a personal injury case is on defendant and defendant must establish same by a preponderance of the evidence, though erroneous, is not reversible where the court further instructed that if the jury find that the plaintiff was guilty of any contributory negligence he cannot recover, p. 607.</p> <p>9. Same. — Instructions.—Refusal.—Point Already Covered. — It is not error to 'refuse to give instructions on a branch of the case already covered by proper instructions, p. 609.</p>

<p>From Elkhart Circuit Court; Joseph D. Ferrall, Judge.</p> <p>Action by Isaac Fultz against Henry Gilman. From a judgment for plaintiff, defendant appeals.</p>

<p>From Hamilton Circuit Court; Ira W. Christian, Judge.</p> <p>Prosecution by the State of Indiana against Charles O. McNulty. From a judgment of conviction, defendant appeals.</p>

<p>From Ripley Circuit Court; Willard New, Judge.</p> <p>Action by John TI. Ehlers against August Hartman, Sr., and others. From a judgment for defendants, plaintiff appeals.</p>

<p>From Decatur Circuit Court; Francis T. HordJudge.</p> <p>Action by Samuel N. Patterson against tbe Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Erom a judgment on a verdict for plaintiff for $6,000, defendant appeals.</p>

<p>1. Pleading. — Complaint. — Municipal Corporations. — Streets.— Obstructions. — A complaint against a town for personal injuries which alleges that an obstruction on one of the town streets frightened plaintiff's horse, thereby causing injuries, will be construed as showing that some third party placed such obstruction on such street, p. 628.</p> <p>2. Same. — Complaint. — Municipal Corporations. — Streets.—Obstructions. — Necessity for. — A complaint against a town for personal injuries caused by an obstruction of a street does not need to allege that there was no necessity for such obstruction, p. 629.</p> <p>3. Same. — Complaint. — Municipal Corporations. — Streets.—Obstructions. — Notice.—-A complaint against a town for personal injuries caused by the obstruction of a street by a third party must show that the town had notice thereof, p. 629.</p> <p>4. Same. — Complaint. — Municipal Corporations. — Streets.—Obstructions. — Negligence.—How Averred. — A complaint against a town for personal injuries, which merely shows an obstruction of the street, notice thereof to the town and injuries caused thereby, is insufficient where it fails to show that the obstruction was negligently permitted to be or remain there, p. 629.</p> <p>5. Same. — Complaint. — Municipal Corporations. — Streets.—Obstructions. — Frightening Horses. — Contributory Negligence. — A complaint against a town for personal injuries caused by the frightening of plaintiff’s horse at an obstruction in the street must show that such obstruction was such as to frighten an ordinarily gentle horse, and such averment is not for the purpose of negativing contributory negligence, p. 630.</p> <p>6. Pleading. — Complaint. — Municipal Corporations. — Streets.— Obstructions. — A complaint against a town for personal injuries caused by an obstruction of its street is not necessarily insufficient because it does not in terms show that such obstruction was within the corporate limits, especially where it is evident from the whole complaint that it was within such limits, p. 635.</p>

<p>1. Pleading. — Complaint.—Contracts.—Breach.—Motion to Make Specific. — A motion to make more specific, in an action for breach of contract and for specific performance, should be overruled to a complaint alleging that defendant paid all the debts which he owed by the profits of his farm which plaintiff had cultivated for three years in consideration that defendant, upon the payment of all of his debts, would deed to plaintiff twenty acres of land, there being no claim that plaintiff paid such debts, p. 637.</p> <p>2. Judgment.- — Complaint.—Paragraphs.—Specific Performance. —Damages.—Where a complaint consisted of two paragraphs, the first for specific performance and the second for damages, and there was a money judgment only, it affirmatively appears that the judgment rests on the second paragraph, p. 638.</p> <p>3. Pleading. — Complaint.—Contracts.-—Breach.—Damages.—Due and Unpaid. — It is not necessary that a complaint for damages for a breach of contract should in terms allege that the claim is due and unpaid, where it appears from the entire complaint that it is due and unpaid, p. 638.</p> <p>4. Same. — Complaint.—Contracts.—Breach.—Nominal Damages. ■ — -A complaint which shows a breach of contract by defendant entitles plaintiff at least to nominal damages and is therefore sufficient as against a demurrer, p. 638.</p> <p>5. Appeal and Error. — New Trial. — Evidence Not in Record.— Where the evidence is not brought into the record, questions raised by the motion for a new trial cannot be considered. p. 639.</p>

<p>1. Appeal and Error. — Answer.—Initial Attack on Appeal. — An answer can not be attacked for insufficiency of facts for the first time on appeal, p. 641.</p> <p>2. Pleading. — Ansxver.—Denial of Part of Complaint. — Avoidance of Part. — Under the Indiana code (§350 Burns 1901, §347 R. S. 1881) an answer denying part of the allegations of the complaint and avoiding others constitutes but a single ground of defense, p. 641. •</p> <p>3. Same. — Answer. — Additional Answer. — Paragraphs. — Demurrers. — Where defendant answered by a single paragraph in confession and avoidance and later filed an additional answer, also in avoidance, a demurrer to the “second paragraph of answer” presents no question, such answers presenting but a single defense and thus but one paragraph, p. 642.</p> <p>4. Appeal and Error. — Appellate Court Rules. — Briefs.—All questions not discussed in appellant’s brief are waived, p. 643.</p> <p>5. Same. — Assignment of Errors. — ■Weight of Evidence. — New Trial.- — A motion for a new trial on the ground of insufficient evidence sufficiently presents on appeal the question of the weight of the evidence, p. 643.</p> <p>6. Husband and Wife. — Descent and Distribution. — Inchoate Interests. — Husbands and wives have contingent interests in each other’s property which vest at death, and which may be taken away only by a valid marriage settlement, p. 644.</p> <p>7. Same. — Antenuptial Contracts. — Consideration. — An ante-nuptial contract made in consideration of marriage is valid and enforceable, p. 644.</p> <p>8. Same. •— Postnuptial Contracts. — Marriage.—Consideration.-—■ Marriage furnishes no consideration for a postnuptial contract, p. 644.</p> <p>9. Husband and Wipe. — Conveyances of Inchoate Rights. — The inchoate interest of the husband or wife in the other’s property cannot be conveyed without a conveyance of the property of the other, p. 645.</p> <p>10. Same. — Postnuptial Contracts. — Consideration.—The post-nuptial promise to release the wife’s property from any claim of marital rights is no legal consideration for a promise by the wife to release her marital rights in the husband’s property, p. 645.</p> <p>11. Same. — Postnuptial Contracts. — Executory.—A postnuptial promise by the husband to release his claim of marital rights in his wife’s property in consideration that she release her marital rights in his property is executory and may be disregarded by either party, p. 645.</p>

Erom Grant Circuit Court; H. J. Pa/ulus, Judge. Action by Thomas H. Snow, as administrator of John Critz, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Erom a judgment on a verdict for plaintiff for $6,000, defendant appeals.

From Monroe Circuit Court; James B. Wilson, Judge. Suit by Charles G. Corr against Peter B. Martin, as county treasurer of Monroe county. ' From a decree for plaintiff for less than prayed, plaintiff appeals.

<p>Erom Dearborn. Gircnit Court; George E. Downey, Judge.</p> <p>Action by Margratha M. Klump against the Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Evidence. — Mental Incapacity. — Negligence.—Pleading.—Evidence in chief of the mental incapacity of the plaintiff is inadmissible,' where not pleaded, in a case of negligence, pp. 668, 672.</p> <p>2. Same.- — •Mental Weakness. — Interurban Railroads. — Negligence. — In an action on behalf of a minor twelve years old for damages for injuries caused by an interurban railroad company, wherein defendant, upon cross-examination, introduced testimony that such minor was of a reckless disposition, it is erroneous to exclude evidence in rebuttal showing that such minor was mentally weak. pp. 668, 671.</p> <p>3. Trial'. — Evidence.—Peremptory Instructions. — In granting a peremptory instruction for defendant the trial court can consider only the evidence and inferences favorable to plaintiff and must treat the evidence favorable to defendant as withdrawn, p. 671.</p> <p>4. Same.' — Interurban Railroads. — Backing Car over Streets iwithout Lookout. — Negligence.—Question for Jury. — The court cannot, as a matter of law, hold that an interurban railway company, in backing a freight-car without any lookout, around a corner and over a much frequented crossing, thereby injuring a minor twelve years old while attempting to cross ahead of such car, is not guilty of negligence, such question being for the jury. p. 671.</p> <p>5. Same. — Contributory Negligence. — How Proved. — Contributory negligence in personal injury cases is a defense which may be proved under the general denial, and defendant is entitled to have all evidence introduced by plaintiff on such issue considered. p. 671.</p>

<p>1. Statutes. — Construction.—Meaning.—All parts of a statute should be construed together to ascertain its meaning, p. 676.</p> <p>2. Municipal Corporations. — Street Assessments. — Statutes for. —Strict Construction. — At common law municipal corporations have no right to assess frontagers for the payment of the cost of street improvements, and statutes granting such right are construed strictly in favor of such frontagers and against such corporations, p. 676.</p> <p>3. Same. — “Sidewalks.”—Meaning of. — Presumptions.—-A “sidewalk” means primarily a foot way along the side of a street, and the presumption is that such meaning is intended when such word is used in a statute, p. 677.</p> <p>4. Statutes. — Construction. — Municipal Corporations. — Sidewalks. — The statute (Acts 1897, p. 79, §1), providing that the board of public works of certain cities may “improve only a part, or one side of any street, or sidewalk, or other place,” should be read as though the words “or sidewalk” were omitted, the second proviso of such section specifically covering sidewalks, and such second proviso being meaningless upon any other construction. p. 678.</p>

<p>Erom Superior Court of Marion County (66,198) ; James M. Leathers, Judge.</p> <p>Action by Grafton Johnson against the Alton-Dawson Mercantile Company and Volney T. Malott, as receiver of the Terre TIaute & Indianapolis Railroad Company. Erom a judgment for plaintiff, said receiver appeals.</p>

<p>1. Pleading. — Complaint. — Exhibits. —■ Wills. — Partition. — Quieting Title. — In a cross-complaint for partition, the will, under which all parties claim title, is not the foundation of the action and therefore is not a proper exhibit, and can not be . considered, p. 688.</p> <p>2. Same. — Answer.—Sustaining Demurrer to Paragraph Whose Facts Are Provable under Another. — Sustaining a demurrer to a paragraph of answer whose facts are provable under another paragraph is harmless error, p. 688.</p> <p>3. Same. — Complaint.—Partition.—Possession.—-A cross-complaint ' showing that the cross-complainant and defendants are the owners as tenants in common of certain lands and praying partition thereof is sufficient without any direct allegation of posession of such real estate by cross-complainant, the allegation of ownership being in effect an allegation of possession or right thereto, p. 689.</p>

<p>1. Indictment and Information. — Indorsements.—Grand Jury. —Number Voting for Presentment. — Evidence.—The return, into open court, by the grand jury, of an indictment indorsed “a true bill” and signed by the foreman is sufficient evidence that at least five of the grand jurors voted for the return of such indictment, that being the number required by law for the return of a valid indictment, p. 693.</p> <p>2. Same. — Assault and Battery with Intent to Murder. — Present Ability. — An indictment for assault and battery with intent to commit murder does not need to charge that defendant had the present ability to commit the assault, p. 693.</p> <p>3. Evidence. — Prosecuting Witness’s Communicated Threats.— Defense. — Withdrawing evidence of certain communicated threats, made by the prosecuting witness against defendant, in a prosecution for assault and battery with intent to commit murder, is not reversible where the evidence showed that the defendant was in no imminent peril, that the prosecuting witness made no attack, and there was other evidence of threats remaining in the case, and where the question of intent was found in defendant’s favor, p. 693.</p> <p>4. Trial. — Criminal Law. — Instructions.—Intent.—In a prosecution for assault and battery with intent to commit murder, where defendant was acquitted of such intent, it is unnecessary to consider instructions solely on such question, p. 696.</p> <p>5. Same. — Criminal Law. — Instructions.—It is not erroneous to charge the jury in a criminal case that if they find all of the essentials of the crime charged proved beyond a reasonable doubt they should find defendant guilty, p. 696.</p> <p>6. Assault. • — ■ Threats. — A buse. — Justification. — Threats and abuse are no justification for an assault, p. 696.</p> <p>7. Appeal and Error. — Instructions.—Criminal Law. — Statutes. —The civil procedure act of 1903 (Acts 1903, p. 338) has no application to criminal procedure, p. 696.</p> <p>8. Trial. — Instructions.—Criminal Law. — Under subdivision six, §260 of the act of 1905 (Acts 1905, p. 641) all special instructions in a criminal case shall be in writing without oral modifications or explanations, p. 696.</p>

Erom Clinton. Circuit Court; John F. Neal, Special Judge. Action by Anna Bradley, as special administratrix of the estate of Erank Bradley, deceased, against David A. Coulter and another, as executors of the will of Hiram A. Bradley, deceased. Erom a judgment for plaintiff, defendants appeal.

<p>From Clinton Circuit Court; James V. Kent, Judge.</p> <p>Action by James F. Grantham against the Chicago & Southeastern Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>From Grant Circuit Court; H. J. Paulus, Judge.</p> <p>Suit by Mary E. Null against the Logansport & Wabash Valley Gas Company. From a decree for plaintiff, defendant appeals.</p>

From Superior Court of Vanderburgh County; John H. Foster, Judge. Action by James B. Swing, trustee for the creditors of the Union Mutual Fire Insurance Company, against the Evansville Ice & Cold Storage Company and another. From a judgment for defendants, plaintiff appeals.

<p>From Grant Superior Court; B. F. Harness, Judge.</p> <p>Suit by Marion Curless against the Diamond Plate Glass Company. From a decree for defendant, plaintiff appeals.</p>

<p>From Starke Circuit Court; John C. Nye, Judge.</p> <p>Action by Stephen Martin against the New York, Chicago & St, Louis Railway Company. From a judgment for plaintiff for $3,000, defendant appeals.</p>