Trial of criminal prosecutions.
See "Criminal Law," 88 6-12; "Homicide,"
2; "Receiving Stolen Goods."
For offenses relating to trade-marks, see "Trade-
Marks and Trade-Names," § 1.
Summary trial, see "Criminal Law," § 3.
& 1. Course and conduct of trial in gen-
eral.
Certain remarks of the court held not preju-
dicial as intimating to the jury that defendant's
witness had willfully suppressed a letter in his
possession while on the witness stand.-Fitz-
gerald v. Benner (Ill.) 709.
§ 2. Reception of evidence.
*Where testatrix' testamentary capacity was
not in issue in a will contest, contestants held not
entitled to introduce evidence for the purpose of
showing her mental condition.-Compher v.
Browning (Ill.) 678.
Rule as to the order of proof of the genuine-
ness of a disputed written instrument stated.
Baum v. Palmer (Ind. Sup.) 108.
*Where a party offers to prove a number of
facts by a witness, as to a large portion of which
facts the witness is incompetent to testify, it is
not error to exclude all the evidence.-Indian-
apolis & M. Rapid Transit Co. v. Hall (Ind.
Sup.) 242.
*An objection to a question made after the
same has been answered is too late to be avail-
ing. Swygart v. Willard (Ind. Sup.) 755.
Where witness was asked as to conversation
with K. as to furnishing men to machinist,
objection to conversation with machinist held
properly overruled.-Diamond Block Coal Co.
v. Cuthbertson (Ind. Sup.) 1060.
*Where an answer was not responsive to a
question, the party objecting should move to
strike it out.-Diamond Block Coal Co.
Cuthbertson (Ind. Sup.) 1060.
On an issue of contributory negligence, de-
fendant is entitled to the benefit of such evi-
dence as is relevant thereto which has been
introduced by plaintiff.-Roberts
Terre
V.
Haute Electric Co. (Ind. App.) 895.
In an action for injuries to a child 12 years
of age, plaintiff held entitled to prove the
child's mental capacity in rebuttal.-Roberts
v. Terre Haute Electric Co. (Ind. App.) 895.
*An offer of evidence held insufficient to ren-
der the exclusion of the evidence erroneous.-
Hart v. Brierley (Mass.) 286.
*An objection to evidence as irrelevant held
improperly overruled where its incompetency
was manifest.-Gearty v. City of New York
(N. Y.) 12.
Where plaintiff offers at the same time testi-
mony in chief and also in rebuttal, held error
to exclude the same and dismiss the complaint.
-Auten v. Bennett (N. Y.) 609.
§ 3. Arguments and conduct of counsel.
*Counsel in argument can attack witnesses,
though unimpeached. Chicago Union Traction
Co. v. O'Brien (Ill.) 341.
The court having indicated an intention to
submit interrogatories requested by defendant.
it was not error to permit plaintiff's counsel to
read a comment thereon to the jury.-McIntyre
v. Orner (Ind. Sup.) 750.
*In passing on a motion for directed verdict.
the court cannot weigh the evidence, but must
concede the truth of that in favor of the party
against whom the motion is made.-B. Shon-
inger Co. v. Mann (Ill.) 354.
Where, in an action on a building contract,
the evidence as to the date of the completion of
the work was conflicting, the question was for
the jury.-Fitzgerald v. Benner (Ill.) 709.
Where the court could set aside a verdict for
plaintiff as not sustained by sufficient evidence,
the court may direct a verdict for defendant.-
Green v. Macy (Ind. App.) 264.
*In considering a motion for peremptory in-
struction, the court must accept as true all the
facts and inferences against the party asking a
protection of the verdict, and in case of con-
flicting evidence, excluding that favorable to
him.-Hall v. Terre Haute Electric Co. (Ind.
App.) 334.
*On a motion for a peremptory instruction,
the court is bound to accept as true all the
facts the evidence tends to prove, and draw
whom the motion is made, and reject all evi-
all inferences favorable to the party against
dence favorable to the other.-Roberts v. Terre
Haute Electric Co. (Ind. App.) 895.
What is a reasonable time within which to
perform an act is usually a question of fact,
though if the facts are undisputed or clearly es
tablished it may be a question of law.-Ameri-
can Window Glass Co. v. Indiana Natural Gas
& Oil Co. (Ind. App.) 1006.
Affirmance by Appellate Division of judgment
on verdict dismissing complaint as based on a
matter of law held too broad.-Levy v. James
McCreery Realty Corp. (N. Y.) 1079.
§ 5. Instructions to jury-Province of
court and jury in general.
An instruction that denunciation of witnesses
by counsel should not influence the jury to dis-
regard the testimony if unimpeached is errone-
ous. Chicago Union Traction Co. v. O'Brien
(Ill.) 341.
Instruction that the law presumed an unim-
peached witness had testified truly held errone-
ous. Chicago Union Traction Co. v. O'Brien
(Ill.) 341.
Where in a will contest there was no claim of
testamentary incapacity, it was not error for
the court to charge that testatrix' capacity was
admitted, etc.-Compher v. Browning (Ill.) 678.
In an action to recover on a building contract,
an instruction held not subject to criticism as
embodying the assumption of a fact in issue.-
Fitzgerald v. Benner (Ill.) 709.
On the issue of mental capacity, an instruc-
tion held not to invade the province of the jury
by the assumption that drunkenness was some
evidence of insanity.-Swygart v. Willard (Ind.
Sup.) 755.
*An instruction which assumes the truth of
controverted facts is erroneous as invading_the
province of the jury.-Beery v. Driver (Ind.
Sup.) 967.
An instruction on the weight to be given the
testimony of witnesses held reversible error.-
Muncie Pulp Co. v. Keesling (Ind. Sup.) 1002.
An instruction as to what might be considered
in weighing the testimony of different witnesses
held proper.-Indianapolis Northern Traction
Co. v. Dunn (Ind. App.) 269.
Taking case or question from jury. An instruction in an action on a policy in-
*The question of the credibility of witness tes-suring a building against loss by fire and
tifying in contradiction of the others is for the lightning held properly refused because invading
jury. Chicago Union Traction Co. v. O'Brien the province of the jury.-Home Ins. Co. v.
(III.) 341.
Gagen (Ind. App.) 927.
*Point annotated. See syllabus.
suffi--Terre Haute & I. R. Co. v. Pritchard (Ind.
App.) 1070.
ciency.
Instruction held not erroneous as submitting
a question of law to the jury.-Chicago & J.
Electric Ry. Co. v. Patton (Ill.) 381.
Alleged error in an instruction by excluding
from the consideration of the jury, by the use
of the word "testimony," documentary evidence
in the case, held harmless, the concluding
sentence of the instruction using the word "evi-
dence" in place of "testimony".-Fitzgerald v.
Benner (III.) 709.
An instruction on weight of the testimony of
plaintiff held proper.-Hancheft v. Haas (Ill.)
845.
An instruction on the right of the jury to
disregard the testimony of a witness held not
misleading.-Hancheft v. Haas (Ill.) 845.
*An instruction on the preponderance of evi-
dence held proper.-Hancheft v. Haas (Ill.)
845.
Where, in an action on a note, the court in-
structed fully as to the issue of estoppel raised
by the reply, plaintiff could not complain be-
cause that issue was not referred to in all the
other instructions.-Baum V. Palmer (Ind.
Sup.) 108.
Instruction on burden of proof held not bad
for failing to refer to the sufficiency of circum-
stantial evidence to discharge the burden.-
New Castle Bridge Co. v. Doty (Ind. App.)
557.
*Instruction that, as a general rule, witness
interested in result will not be as fair in testi-
mony as one not interested, held erroneous.-
Muncie, H. & Ft. W. Ry. Co. v. Ladd (Ind. App.)
790.
*Instruction that, when witnesses are other
wise equally credible, greater weight should be
given to those whose means of information
are superior, held erroneous.-Muncie, H. &
Ft. W. Ry. Co. v. Ladd (Ind. App.) 790.
In an action against a railway company for
injuries received by a passenger on a train of
another company, an instruction held not open
to the objection that it gave undue prominence
to one feature of the case.-Baltimore & O. S.
W. R. Co. v. Kleespies (Ind. App.) 1015.
§ 7.
Applicability to pleadings and
*Where an instruction states a rule of law
which, though not incorrect, does not relate to
any fact in the case, it is improper. Chicago
Union Traction Co. v. O'Brien (Ill.) 341.
In an action to recover on a building contract,
an instruction omitting the question of defend-
ant's damages, by way of set-off, resulting from
plaintiff's failure to complete the work within
the specified time, held not erroneous.-Fitz-
gerald v. Benner (Ill.) 709.
*A requested instruction held properly re-
fused, unless there is some evidence to which it
was pertinent.-Allyn v. Burns (Ind. App.) 636.
In an action on a policy insuring a build-
ing against loss by fire and lightning, a request-
ed instruction held properly refused because
ignoring the facts.-Home Ins. Co. v. Gagen
(Ind. App.) 927.
An instruction in an action against two rail-
roads for injuries received by a passenger of
one in a collision at crossing held not objection-
able as eliminating the question of proximate
cause. Baltimore & O. S. W. R. Co. v. Klees-
pies (Ind. App.) 1015.
quest that under all the evidence F. was not a
In an action for injuries to a servant, a re-
superintendent within Employer's Liability Act
(Rev. Laws, c. 106) held properly refused.-
Peterson v. Morgan Spring Co. (Mass.) 220.
In an action for injuries to a servant, a re-
quest that there was no evidence that defendant
negligently failed to supply a suitable appliance
for the prosecution of the work by plaintiff held
properly refused.-Peterson v. Morgan Spring
Co. (Mass.) 220.
§ 8.
Where one asks several instructions on
particular subject held that he cannot com-
plain that the least favorable one only is given.
-National Enameling & Stamping Co. v. Me-
Corkle (Ill.) 843.
*It is not error to refuse instructions covered
by those given.-Hancheft v. Haas (Ill.) 845.
It is not error for the court to refuse to
give an instruction substantially covered by the
charge.-Springer v. Bricker (Ind. Sup.) 114.
A requested instruction relating to the jury,
determining the credibility of witnesses, held
properly refused in view of the charge given
on the subject.—Home Ins. Co. v. Gagen (Ind.
App.) 927.
*Superior court rule 48 does not prevent the
presiding justice from receiving and passing on
the requests for instructions presented for the
first time after the closing argument, and allow-
ing an exception to the party aggrieved.-Rob-
ertson v. Boston & N. St. Ry. Co. (Mass.) 513.
The receiving and refusing of instructions pre-
sented after argument held in effect the giving
of special leave to present the instructions at
that time.-Robertson v. Boston & N. St.
Ry. Co. (Mass.) 513.
Superior court rule 48, requiring instructions
requested to be presented before argument only,
means that requests presented after argument
cannot be entertained without leave of court.-
Robertson v. Boston & N. St. Ry. Co. (Mass.)
513.
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*In charging a jury, the court is not required
to cover all questions in any one instruction.-
Pittsburgh, C., C. & St. L. Ry. Co. v. Higgs
(Ind. Sup.) 299.
In action for injuries owing to plaintiff's
horses having been frightened by defendant's
automobile, an instruction defining negligence
held not erroneous.-McIntyre v. Orner (Ind.
Sup.) 750.
Instructions should be considered with ref-
erence to the charge as a whole.-Allyn v.
Burns (Ind. App.) 636.
Instruction that credit to be given witnesses
is a question for the jury held not to render
harmless previous instruction as to credibility
of witness interested in suit.-Muncie, H. & Ft.
W. Ry. Co. v. Ladd (Ind. App.) 790.
*Point annotated. See syllabus.
In an action against a carrier for ejection of
a passenger, instructions held not objectionable
as not applicable to the pleadings and evidence.
§ 10. Custody, conduct, and deliberations § 1. Actions.
of jury.
*Error in permitting the jury to take the dec-
laration into the jury room on their retire-
ment is not reversible.-Hancheft v. Haas
(Ill.) 845.
Where a motion for a venire de novo only ap-
plied to the general verdict, no question was
raised concerning the finding of the jury in an-
swer to a special interrogatory.-Spaulding v.
Mott (Ind. Sup.) 620.
*A motion for a venire de novo will not be
sustained unless the verdict, whether general or
special, is so defective and uncertain that no
judgment can be rendered on it.-Spaulding v.
Mott (Ind. Sup.) 620.
*A general verdict in favor of plaintiff is a
finding against defendant upon the issuable
facts, and is supported, as against special find-
ings, by every inference which may be drawn
from the evidence.-Union Traction Co. v. Sul-
livan (Ind. App.) 116.
*The measure of damages for the conversion
of goods is the fair market value thereof at the
date of the conversion.-Hart v. Brierley
(Mass.) 286.
*In an action for conversion, evidence that
plaintiff could buy the goods for less than the
market price held incompetent to reduce the
amount of defendant's liability.-Hart v. Brier-
ley (Mass.) 286.
TRUSTEE PROCESS.
Administration of trust funds by municipality,
see "Municipal Corporations," § 13.
Charitable trusts, see "Charities."
Creation by will, see "Wills," § 5.
Right of beneficiary to maintain bill for parti-
tion, see "Partition," § 1.
Trust deeds, see "Chattel Mortgages"; "Mort-
gages."
Where special findings followed the theory of
the complaint, and substantially found all the
material facts disclosed by the evidence, defend-81. Creation, existence, and validity.
ants held not entitled to a venire de novo for
alleged indefiniteness of such findings.-Case v.
Collins (Ind. App.) 781.
*A general verdict will not be overthrown
by special findings, unless they are so antago-
nistic that both cannot stand.-Lindley v. Kemp
(Ind. App.) 798.
*Facts which might have been proven under
the issues will be regarded as proven, if neces-
sary to avoid a conflict between the special find-
ings and general verdict.-Lindley v. Kemp
(Ind. App.) 798.
In an action on a note executed by husband
and wife, who were partners, prior to the hus-
band's death, answers to interrogatories held
not in irreconcilable conflict with the general
verdict against her.-Anderson v. Citizens' Nat.
Bank (Ind. App.) 811.
Answers to special interrogatories held not
to conflict with the general verdict on favor
of plaintiff, so as to require judgment for de-
fendant. Catterson v. Hall (Ind. App.) SS9.
*Under Burns' Ann. St. 1901, § 556, all the
facts specially found pertinent to the issue
must be construed as a whole to be incon-
sistent with the general verdict in order to
control it.--Catterson v. Hall (Ind. App.) 889.
*As concerns general verdicts, a venire de
novo reaches only such defects as are apparent
on the face of the record.-Douglas v. Indianap-
olis & N. W. Traction Co. (Ind. App.) 892.
In an action for injuries to a passenger,
general verdict held not necessarily inconsistent
with answers to interrogatories, nor outside
the issues.-Cincinnati, I. & W. Ry. Co. v.
Bravard (Ind. App.) 899.
It is within the discretionary power of the
trial court to question the jury as to the grounds
of their general verdict, and to inquire if they
had determined certain issues in the case.-Hart
v. Brierley (Mass.) 286.
§ 12. Trial by court.
*A judgment unsupported by any finding of
fact must be reversed.-Dougherty v. Lion
Fire Ins. Co., Limited, of London (N. Y.) 4.
TROVER AND CONVERSION.
Conclusiveness of verdict, see "Judgment," § 7.
Conversion by broker, see "Brokers," § 1.
Conversion by warehousemen, see "Warehouse-
men."
in question under a resulting trust in favor of
Defendant held the owner of certain property
complainants, as provided by Burns' Ann. St.
1901, § 3398.-Catterson v. Hall (Ind. App.)
889.
tention of insured to create a trust in the pro-
*Parol evidence held admissible to show the in-
ceeds of the certificate.-Mee v. Fay (Mass.)
229.
§ 2. Construction and operation.
Certain will and deed held to create an active
trust which was not executed under the stature
of uses, and under which the beneficiary took no
legal estate.-Mason v. Mason (Ill.) 692.
§ 3. Management and disposal of trust
property.
Beneficiary under trust held not entitled to
have a sale made by his trustee.-Mason v.
Mason (Ill.) 692.
In determining whether majority of testator's
children signed request for trustee to sell
land, neither the trustee nor the purchaser.
though both children, should be counted.-
Fredrick v. Fredrick (Ill.) 856.
*Where a large number of beneficiaries are
interested in trust property, the trustee should
not sell the same without notice to all the par-
ties in interest.-Fredrick v. Fredrick (III.) 876.
Where the proceeds of a certificate of insurance
is held under a valid trust, the beneficiaries are
not entitled to the possession thereof.-lee v.
Fay (Mass.) 229.
8 4. Accounting and compensation of
*Trustees under a will held only entitled to
such compensation as the law itself would
allow or the court should determine to be rea-
sonable.-Compher v. Browning (Ill.) 678.
5. Establishment and enforcement of
A family settlement held to create a trust of
the surplus income of certain land, which plain-
tiffs were entitled to enforce against the trus
tee's wife, who took such income with notice,
and repudiated the trust.-Case v. Collins (Ind.
App.) 781.
*Plaintiffs held entitled to follow the proceeds
of a bank deposit left by their mother on her
death, and received and invested in real estate
by their father in his own name in violation
of plaintiffs' rights.-Case v. Collins (Ind.
App.) 781.
*Point annotated. See syllabus.
1. Requisites and validity of contract.
Contract for sale of land, legal title to which
is in another, held not void for want of mu-
tuality.-Kuhn v. Eppstein (Ill.) 145.
2. Performance of contract.
*Lease for term of years held
suit which may affect real estate, within Chan-
cery Act (Hurd's Rev. St. 1903, c. 22) § 3,
and must be brought in the county where the
courthouse is located.-Munger v. Crowe (Ill.)
50.
§ 2. Change of venue or place of trial.
*Obligation of judge to amend a change of
venue in a proper case is imperative; but as to
whether the notice of application is sufficient
the judge has a discretion in determining.-
Glos v. Garrett (Ill.) 373.
Of objections to particular acts or proceedings.
See "Pleading," § 7.
Assignment of errors, see "Appeal and Error,"
$ 12.
Error waived in appellate court, see "Appeal
and Error," § 26.
brance within a contract for sale of land. Right to recover benefits, see "Beneficial Asso-
Kuhn v. Eppstein (Ill.) 145.
VENIRE DE NOVO.
Of criminal prosecutions, see "Criminal Law,"
§ 1.
§ 1. Nature or subject of action.
A proceeding to remove a wing of a court-
house to another part of the grounds held a
Sufficiency of service in election contest, see
"Elections," § 2.
Taking private property for public use, see
"Eminent Domain," § 3.
Tender back of goods sold on breach of war-
ranty, see "Sales," § 4.
Wrongful acts of agent, see "Principal and
Agent," § 1.
Conditions in gas lease, see "Mines and Min-
erals," § 2.
Forfeiture of railroad right of way, see "Rail-
roads," § 3.
* Point annotated. See syllabus.
Limitations contained in insurance policy, see
"Insurance," § 10.
Objections not presented in record, see "Appeal
and Error," § 11.
Proof of loss insured against, see "Insurance,"
§ 8.
Rights under contract for municipal improve-
ments, see "Municipal Corporations," § 7.
Right to appeal, see "Appeal and Error," § 3.
Right to compensation for injuries from ex-
ercise of power of eminent domain, see "Emi-
nent Domain," § 2.
Right to deny will, see "Wills," § 4.
Right to forfeit insurance, see "Insurance,"
§ 6.
Right to have appeal dismissed, see "Appeal
and Error," § 14.
Right to jury trial, see "Jury," § 1.
to show a continued nuisance rather than a
permanent injury to plaintiff's lands.-Muncie
Pulp Co. v. Keesling (Ind. Sup.) 1002.
of a stream held that a paragraph of the com-
In an action for damages from the pollution
plaint stated a cause of action.-Muncie Pulp
Co. v. Keesling (Ind. Sup.) 1002.
*A riparian owner has no right to divert
water from the stream for manufacturing pur-
poses to such an extent as to deprive a lower
riparian proprietor of the natural flow of the
stream.-New England Cotton Yarn
Co. T.
Laurel Lake Mills (Mass.) 231.
2. Natural lakes and ponds.
*Under the Colonial Ordinance of 1641-47
the commonwealth held to have title to an
island in a great pond located within a towL
Right to object to competency of witness, see which had neither been conveyed by the townL
"Witnesses," § 1.
*The warehouseman held not in fault for fail-
ing to deliver to the depositor on demand arti-
cles exempt from attachment; all the articles
deposited having been attached.-Cornell v. Ma-
honey (Mass.) 664.
*Where a warehouseman refused to deliver
goods to the depositor because they had been at-
tached by a third person, it was a good defense
to an action for conversion, and not merely a
ground for a continuance of the action for con-
version.-Cornell v. Mahoney (Mass.) 664.
Arrest without warrant, see "Arrest," § 1.
County warrants, see "Counties," § 3.
For collection of assessment for public improve-
ments, see "Municipal Corporations," 9.
Orders for payment from public funds, see "Mu-
nicipal Corporations," § 13.
Search warrant, see "Searches and Seizures."
By insured, see "Insurance," §§ 4. 5.
Covenant of in lease, see "Landlord and Ten-
ant." § 1.
Covenants of, see "Covenants," § 2.
In application for insurance, see "Insurance,"
§ 2.
On sale of goods, see "Sales," §§ 4, 6.
WATERS AND WATER COURSES.
See "Drains"; "Levees."
Dedication of easement to maintain water pipes,
see "Dedication," §§ 1, 2.
the colony, province, or commonwealth.-Attor
ney General v. Herrick (Mass.) 1045.
§ 3. Conveyances and contracts.
Contract between upper and lower riparian
owners as to the right of the former to discharge
water drawn from the stream by it into a pond
below the mill of the latter construed.-New
England Cotton Yarn Co. v. Laurel Lake Mills
(Mass.) 231.
§ 4. Artificial ponds, reservoirs, and
channels, dams, and flowage.
Defendants, having the right by grant to flood
their cranberry bog to the injury of plaintiff's
land, held not to have the right to use plaintiff's
land as a reservoir, pumping water onto it from
their bog, and then, when needed, pumping it
back.-Nye v. Swift (Mass.) 652.
An action at law held the proper remedy for
impounding water on plaintiff's land, for use
of defendants' cranberry bog.-Nye v. Swift
(Mass.) 652.
§ 5. Public water supply.
Acts 1899, p. 568, c. 254, authorizing towns
to purchase waterworks, held not to apply to
purchases made antecedent to the passage of
the statute.-Eddy Valve Co. v. Town of
Crown Point (Ind. Sup.) 536.
Contract of water company with incorporated
village to furnish water at certain rates held
enforceable by resident of the village.-Pond v.
New Rochelle Water Co. (N. Y.) 211.
Private rights of way, see "Easements."
Public ways, see "Highways"; "Municipal Cor-
porations," §§ 11, 12.
Oil or gas wells, see "Mines and Minerals,"
§§ 1, 2.
Insurance against loss from sprinkler system, Dower, see "Dower."
see "Insurance," § 7.
Prescriptive right to take water, see "Ease-
ments," § 1.
Purchase of waterworks by municipality, see
"Municipal Corporations," § 13.
Water courses in cities, see "Municipal Corpo-
rations," § 12.
1. Natural water courses.
In an action for damages to plaintiff's land
from a continued nuisance, consisting of the
pollution of a stream flowing through the land,
the measure of damages stated.-Muncie Pulp
Co. v. Keesling (Ind. Sup.) 1002.
In an action for damages from the pollution
of a stream, a paragraph of the complaint held
See "Descent and Distribution”; “Executors
and Administrators."
Admissions by legatees as evidence, see “Evi-
dence," § 5.
Assignment of errors in will contest, see "Ap-
Charitable bequests and devises, see "Chari-
peal and Error," § 12.
Competency of witnesses in will proceedings.
see "Witnesses," § 1.
Construction and execution of trusts, see
"Trusts.'
*Point annotated. See syllabus.
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