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court; Lyman G. Grundy, Judge. Action on relation of W. E. Peabody, county treasurer of Christian county, against D. T. Michael, for delinquent taxes. Judgment for plaintiff, and defendant appeals. Reversed. J. C. McBride, for appellant. A. H. Ranes, City Atty., E. A. Humphreys, State's Atty., and John E. Hogan, for appellee.

PHILLIPS, C. J. The questions involved in this case are substantially, if not exactly, the same as those which have been fully considered and decided at the present term of this court, in the case of Hoover v. People, 49 N. E. 367; and this case must be controlled by what has been there decided. For the reasons there stated, the judgment of the county court of Christian county in this case is reversed, and remanded for further proceedings in conformity with the opinion in Hoover v. People. Reversed and remanded.

PEOPLE ex rel. KOCHERSPERGER, County Treasurer, v. CUDAHY et al. (Supreme Court of Illinois. April 21, 1898.) Appeal from county court; Orrin P. Carter, Judge. Application by D. H. Kochersperger, county treasurer. An objection presented by John Cudahy was sustained, and the treasurer appeals. Affirmed. Charles S. Thornton, Corp. Counsel, and John A. May, for appellant.

PER CURIAM. This was an application by the appellant treasurer for a judgment and order of sale of certain tracts of land belonging to the appellee, for alleged unpaid delinquent special assessments. The court sustained the objection presented by the appellee, and denied the prayer of the application, and this is an appeal from such ruling of the court. The ordinance, the objections filed, and the points raised in this case are identical with those presented in the case of People v. Warneke (decided at this term) 50 N. E. 221, and, upon the authority of what is there said, the judgment must be affirmed. The judgment of the county court is affirmed. Affirmed.

TORRENCE v. PEOPLE ex rel. PEABODY, County Treasurer. (Supreme Court of Illinois. Dec. 22, 1897.) Appeal from Christian county court; Lyman G. Grundy, Judge. Application by W. E. Peabody, as county treasurer, for the use of the city of Taylorville, for a judgment against certain real estate of George W. Torrence for certain delinquent special taxes for local improvements, to which defendant filed objections. From a judgment overruling his objections and granting such application, defendant appeals. Reversed. J. C. McBride and D. M. Sharp, for appellants. A. H. Ranes, City Atty., E. A. Humphreys, State's Atty., and John E. Hogan, for appellee.

PER CURIAM. A judgment was entered by the county court in this case against appellant for $180.04, the aggregate of special taxes levied by the city of Taylorville upon separate lots of land owned by him and situated in different blocks. The report of the city clerk is in the same form as in the case of Hoover v. People, 49 N. E. 367, in which an opinion is filed with this, and the same questions are involved in the two cases. What is said in that case is equally applicable to this, and need not be repeated. The judgment of the county court is reversed, and the cause is remanded. Reversed and remanded.

BALTIMORE & O. & C. RY. Co. et al. v. TOWN OF WALKERTON. (Supreme Court of Indiana. May 24, 1898.) Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge. Action between the Baltimore & Ohio & Chicago Railway Company and others and the town of Walkerton. From a judgment in favor of the latter and a denial of a new trial, the

former appeal. Reversed. James H. Collins, J. E. & J. H. Rose, Jacob D. Henderson, and Stuart McKibben, for appellants. Walter Funk and A. L. Brick, for appellee.

MONKS, J. The questions for determination in this case are in all respects the same as those decided in the case of Paul v. Town of Walkerton (this term) 50 N. E. 725. On the authority of that case, the judgment is reversed, with instructions to sustain the appellant's motion for a new trial and for further proceedings not inconsistent with this opinion. HOWARD, J., took no part in the decision of this cause.

GEORGE v. TOWN OF WALKERTON. (Supreme Court of Indiana. May 24, 1898) Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge. Proceeding by the town of Walkerton before the board of commissioners for annexation of territory. From an order overruling the remonstrance of Silas George to the granting of the application, he appeals. Reversed. J. D. Henderson, Stuart MeKibben, and Francis M. Jackson, for appellant. Walter Funk and A. L. Brick, for appellee.

MONKS, J. The questions for determination in this case are the same as those decided in Paul v. Town of Walkerton (this term) 50 N. E. 725. On the authority of that case the judg ment is reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion. HOWARD, J., took no part in the decision of this cause.

LOUISVILLE, N. A. & C. RY. CO. v. DOMKE. (Supreme Court of Indiana. June 28, 1898.) Appeal from circuit court, Cass county; M. B. Lairy, Judge. Action by Julius Domke against the Louisville, New Albany & Chicago Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. E. Č. Field, Geo. W. Kritzinger, John F. McHugh, and MeClelland & Jenkins, for appellant. J. N. Templer & Son, M. E. Forkner, and J. G. Leffler, for appellee.

MCCABE, J. The appellee sued the appellant to recover damages on account of a personal injury received by him through the alleged negligence of the appellant. A trial of the issues formed resulted in a special verdict, upon which the trial court rendered judgment for the damages assessed conditionally by the jury, the court having previously overruled appellant's motion for a new trial. Both the several paragraphs of the complaint, as well as the facts found in the special verdict, show that the plaintiff's injury was received in and caused by the same collision which caused the death of plaintiff's decedent in the case of the Same Railway Company v. Heck (No. 17,684; decided at this term) 50 N. E. 988; and that appellee here, as the decedent there, had nothing to do with the running or management of the work train, he being a bridge carpenter on the work train. The assignment of errors in this case presents for decision the same questions, and none other, than were decided by this court in the last case referred to, with the exception that the special verdict in this case does not show, as it did in that, that the extra freight train had some verbal notice before it started out that the work train was out. But that can make no difference in the decision of the questions of law involved, as that circumstance, if it had any effect, makes this case weaker for the appellant than the other case. On the authority of that case, the judgment in this must be and is affirmed.

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Madison county; J. F. McClure, Judge. by the state, for the use of Madison county, against the Ohio Oil Company. Judgment for plaintiff. Defendant appeals. Affirmed. M. F. Elliott and Stephenson, Shirts & Fertig, for appellant. W. A. Ketcham, Merrill Moores, and C. C. Shirley, for appellee.

PER CURIAM. The questions presented by the record in this case are identical with some of the questions considered and decided in the case of State v. Ohio Oil Co., 49 N. E. 809, and on the authority of that case the judgment herein is affirmed.

OHIO OIL CO. v. STATE.

(Supreme Court

of Indiana. April 21, 1898.) Appeal from circuit court, Madison county; J. F. McClure, Judge. Suit by the state against the Ohio Oil Company. Judgment for plaintiff. Defendant appeals. Affirmed. M. F. Elliott and Stephenson, Shirts & Fertig, for appellant. W. A. Ketcham, Merrill Moores, and C. C. Shirley, for the State.

PER CURIAM. The questions presented by the record in this case were fully considered and decided against the contention of the appellant herein in the case of State v. Ohio Oil Co., 49 N. E. 809, and on the authority of the decision in that case the judgment herein is affirmed.

CLARK CIVIL TP. v. PEOPLE'S STATE BANK OF OAKLAND CITY. (Appellate Court of Indiana. June 15, 1898.) Appeal from circuit court, Perry county; Edward Gough, Judge. Action by the People's State Bank of Oakland City against Clark Civil Township of Perry county. There was a judgment for plaintiff, and defendant appeals. Affirmed. Sol. H. Esarey, for appellant. Charles A. Weathers, for appellee.

HENLEY, C. J. This cause involves the same questions as those considered and passed upon by this court in the case of School Tp. v. Grossius (No. 2,531) 50 N. E. 771, decided by this court at its present term. On the authority of that case the judgment in this cause is affirmed.

PARKER LAND & IMPROVEMENT CO. v. REDDICK. (Appellate Court of Indiana. May 12, 1898.) Dissenting opinion. Overruled. For majority opinion, see 48 N. E. 1109.

WILEY, J. From the opinion of the majority of the court affirming the judgment below, I dissented, but did not express my views in a dissent opinion. In my own mind, I thought then that the court reached a wrong conclusion, and, after a more deliberate consideration of the questions involved, I am more firmly convinced that I was correct in my original views, and that the court erred in its decision of the case. Robinson, C. J., speaking for the court, said: "The questions presented in this case are in all essential respects identical with those in the case of Improvement Co. v. Reddick (No. 2,299), and decided by this court at the last term. 47 N. E. 848. Upon the authority of the decision in that case, the judgment is affirmed." In the decision of No. 2,299 I did not take part, and, while I differ with my associates in the conclusion there reached, the principle there declared is now the law, so far as this court is concerned; and I have no inclination to refer to it further, only to show, if I can, the wide difference between it and the case I am now considering. Each of these cases was submitted to the court upon an agreed statement of facts. Among other facts, it was agreed in the former case that the appellant was the owner of a certain lot in its Woodlawn addition to Parker city, when it purchased of appellee the oil tank, for which, and the labor of its construction, ap

pellee filed the notice of his intention to hold a mechanic's lien. In the case I am now considering, among other facts, it was agreed that appellant, on the 13th day of January, 1896, held a lease upon certain described real estate; that appellee erected and placed thereon a 250barrel oil tank; that said oil tank was ordered of appellee by appellant on said 13th day of January, 1896; and that appellee, on March 11, 1896, filed his notice of intention to hold a lien thereon for labor and material in the construction of said tank. Upon the agreed facts, the court found for appellee, and rendered judgment accordingly. It was decreed that the real estate described in the notice and complaint, the drilling rig, complete, and the 250-barrel oil tank recently erected therein, etc., be sold as other lands are sold on execution, etc. The agreed statement of facts shows that on the 13th day of January, 1896, appellant had a lease on the real estate described in the notice and complaint. In the notice of appellee's intention to hold a mechanic's lien the notice described the real estate, "a drilling rig, complete," and a 250barrel oil tank. The complaint avers, and the agreed facts show, that appellant was merely the lessee of the real estate described. The complaint further avers, and the agreed facts show, the construction and erection of the tank. In the notice of appellee's intention to hold a mechanic's lien three distinct classes or articles of property are described, to wit: (1) The real estate; (2) "the drilling rig, complete"; and (3) the 250-barrel oil tank. In the agreed statement of facts no mention or agreement is made touching the "drilling rig, complete"; yet the court, in its finding and decree, directs that it be sold, with the other property. In the case of Improvement Co. v. Reddick, supra, the court based its opinion, as I understand it, upon the fact that by the construction and erection of the oil tank, under the agreed facts, upon appellant's own real estate, such tank became an accession to such real estate. In the opinion, Robinson, C. J., speaking for the court, said: "But the facts that the tank had the capacity of 250 barrels, that it was placed upon a foundation built expressly for it out of earth and lumber, and that the purchaser placed it on his own land, lead to the presumption that appellant intended to make the tank a permanent accession to the land." In the opinion the following is quoted approvingly from Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, viz.: "The united application of these requisites is regarded as the true criterion on an immovable fixture: (1) Real or constructive annexation of the article in question to the freehold; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent accession to the freehold." It was upon the theory of the principles there announced that the court held that the lien attached and could be enforced. There appellant owned the real estate, and erected on it what the court held, under the facts, to be a permanent accession to the land, and hence the right to the lien was established. I cannot concur in the holding of the court in that regard, on the ground that, in my judgment, such tank was not such "other structure" contemplated within the meaning of the statute, and in the very nature of things, under the agreed facts, was not a fixture or a permanent accession to the real estate. But, as that question is put at rest by the decision of it, further comment is useless. That the oil tank, when purchased, was personal property, there seems to be no doubt. This being so, it was not subject to the provisions of the mechanic's lien law until it attached as a permanent fixture to the real estate. The real estate upon which the tank was placed was held in fee by another. Appellant only had a leasehold interest in it, and hence it seems to me that there is no presumption that appellant intended it as a permanent accession to the land. In my judgment, also, the size of the "structure," if it be a structure in this case,

If

does not measure the right of the lienholder. a mechanic, material man, or laborer brings himself within the provisions of the statute, he is entitled to his lien, regardless of the extent or size of the building or other structure erected. If a person should purchase materials and employ a mechanic to build for his wife a flower tub, and place it in his front yard, on a foundation made of earth and boards, it would be a "structure," within the meaning of the statute, if the rule announced in these cases is the law. I cannot subscribe to that doctrine. It is the rule that a tenant may erect a house, building, or structure on the leased premises, to the end that he may have the best use of the leasehold, and he may remove it at any time before the expiration of his lease where that can be done without injury to the freehold. Can it be contended that appellant did not have the right to remove the tank at any time before the expiration of the lease, or that such removal would injure the land? In Antoni v. Belknap, 102 Mass. 193, where appellees, as lessees, erected during the term of their lease a large building for the storage of ice, it was erected upon the land leased, with wooden blocks under the corners, the sills imbedded in the ground, and banked up at the sides. Upon these facts, it was held that the building was a tenant's fixture, and not a fixture to the freehold. It seems to me that the rule there announced is a correct one, and, if so, the tank erected by appellant was but, at most, a tenant's fixture, and not a fixture to the freehold; and, if not a fixture to the freehold, the appellee had no right to a mechanic's lien. See Turner v. Wentworth, 119 Mass. 459; Moore v. Smith, 24 Ill. 513. In this case, in the agreed statement of facts, upon which the case was submitted to the court for trial, which was all the evidence in the case, and upon which the court made its finding and entered its judgment, no mention whatever is made of a drilling rig, complete; and yet in the decree the court directs the sale of the real estate, the 250-barrel oil tank, and the drilling rig, complete. It thus appears that the judgment and decree are broader than the agreed facts warrant. The judgment embraces property about which the agreed facts make no mention, and the decree orders the sale of property about which there is no evidence or showing that such property exists or is subject to sale. While counsel have not discussed this question, it is so apparent from the face of the record that it ought not to escape unnoticed. For these reasons, I think the petition for a rehearing should be granted. The majority of my associates being of a contrary view, the petition for a rehearing is overruled.

SMITH v. DEITRICH. (Appellate Court of Indiana. May 25, 1898.) Appeal from circuit court, Marshall county; A. C. Capron, Judge. Action by John R. Deitrich against David C. Smith. From a judgment for plaintiff, defendant appeals. Reversed. Samuel Parker and H. A. Logan, for appellant. J. D. McLaren, for appellee.

BLACK, J. This was an action brought by the appellee against the appellant for the recovery of the possession of certain personal property. The sufficiency of the evidence to sustain a finding in favor of the appellee is questioned. In another action, brought by one Andrew P. Callahan against Jacob C. Heinz, Frederick J. Heinz, and Charles Horstmeyer, as partners, the property in question had been seized by the sheriff, the appellant in the cause now before us, under a writ of attachment, as the property of the partnership. When so seized, the property was in the possession of John R. Deitrich, the appellee, to whom it had been assigned by said Horstmeyer, one of said partners, in trust for the benefit of certain creditors of the firm. The case at bar is the action of replevin mentioned in Callahan v. Heinz (Ind. App.) 49 N. E. 1073. In that case it was decided by this court

that the assignment to the appellee was invalid. Adhering to that decision, we must hold that the evidence was insufficient. The judgment is reversed, and the cause is remanded for a new trial.

PAINE et al. v. SILVA. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.) Exceptions from superior court, Suffolk county; John W. Hammond, Judge. Action by L. N. Paine and another against Joseph S. Silva. Judgment for plaintiffs, and defendant excepts. Overruled. Carver & Blodgett, for plaintiffs. W. A. Morse and W. W. Stover, for defendant.

HOLMES, J. This bill of exceptions substantially repeats the case which was here after the former trial, but this time the defendant excepts. Paine v. Silva, 168 Mass. 432, 47 N. E. 118. The plaintiffs' evidence was more explicit than before to conversations during the time covered by the bill, which showed that the defendant contemplated the continuous furnishing of goods to the vessel, and the charging of them to the owners either directly or through a charge to great generals. The brief submitted for the defendant, after repeating the argument previously addressed to us, adds the suggestion that the master was owner pro hac vice under the Provincetown lay,-a suggestion which is taken from the former decision, where it was made and repudiated. There is a further suggestion that the defendant's promise, if any, was a promise to answer for the debts of the master, and therefore was not binding, because not in writing. But the ground on which the plaintiffs were allowed to go to the jury was that there was evidence that the defendant made himself a debtor for the goods. There is nothing else worth mentioning. Exceptions overruled.

ALLEN et al. v. McCOY. (No. 4,741.) (Supreme Court of Ohio. Oct. 26, 1897.) Error to circuit court, Fayette county. Mills Gardner, for plaintiffs in error. Harper & Harper, for defendant in error. No opinion. Judgment of the circuit court reversed, and that of the common pleas affirmed, on the authority of MeGaughey v. Jacoby, 54 Ohio St. 487, 44 N. E 231.

AMPT v. CITY OF CINCINNATI et al. (No. 4,896.) (Supreme Court of Ohio. Dec. 17, 1897.) Error to circuit court, Hamilton county. W. M. Ampt, for plaintiff in error. Foraker & Prior and Frederick Hertenstein, for defendants in error. No opinion. Judgment affirmed.

BADGER v. GRIEVE, Sheriff. (No. 5,824.) (Supreme Court of Ohio. Jan. 11, 1898.) Error to circuit court, Clark county. C. L. Maxwell, for plaintiff in error. R. L. Gowdy, for defendant in error. No opinion. Judgment affirmed.

BARNES et al. v. McLAUGHLIN. (No. 4.706.) (Supreme Court of Ohio. Oct. 12, 1897.) Error to circuit court, Huron county. Stephen M. Young, for plaintiffs in error. J. R. McKnight, for defendant in error. No opinion. Judgment affirmed.

BEALL V. BEALL et al. (No. 4,991.) (Supreme Court of Ohio. Dec. 14, 1897.) Error to circuit court, Franklin county. J. H. Collins, for plaintiff in error. Barger & Barger, for defendants in error. No opinion. Judgment af firmed.

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BODI et al. v. WINOUS POINT SHOOTING CLUB. (No. 4,750.) (Supreme Court of Ohio. Oct. 5, 1897.) Error to circuit court, Ottawa county. George A. True and C. I. York, for plaintiffs in error. E. G. Love and J. R. Bartlett, for defendant in error.

PER CURIAM. On consideration whereof this court finds that there is error in the order and judgment of the circuit court in this, to wit: In enjoining the defendants below from setting fish nets and fishing in the waters described in said order of injunction, and removing fish therefrom, and so much of said judgment is hereby reversed. In all other respects said judgment of injunction is affirmed. Each party to pay onehalf of costs in this court.

BOYNTON et al. v. CROLL. (No. 4,791.) (Supreme Court of Ohio. Nov. 16, 1897.) Error to circuit court, Warren county. McMahon & McMahon and Joseph D. Miller, for plaintiffs in error. Patrick Gaynor, for defendant in error. No opinion. Judgment reversed on authority of McDonald v. Ketchum, 53 Ohio St. 519, 42 N. E. 322, and cause remanded to the circuit court for further proceedings.

R. BRAND CO. v. BURGRAFF et al. (No. 4,813.) (Supreme Court of Ohio. Nov. 23, 1897.) Error to circuit court, Ottawa county. E. G. Love, for plaintiff in error. C. I. York, for defendants in error. No opinion. Judgment affirmed.

BREIDINGER v. EMERINE. (No. 4,692.) (Supreme Court of Ohio. Oct. 12, 1897.) Error to circuit court, Seneca county. Brewer & Brewer, for plaintiff in error. Seney & Sayler and

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son, for plaintiff in error. Campbell & Rosemond and Robert T. Scott, for defendants in error. PER CURIAM. On consideration whereof it is ordered and adjudged by this court that the judgment of the said circuit court be, and the same is hereby, affirmed, on the ground that upon the facts found the parties are estopped from demanding partition; and, it appearing to the court that there were reasonable grounds for this proceeding in error, it is ordered that no penalty be assessed herein. Judgment affirmed.

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CITY OF BUCYRUS ex rel. CITY SOLICITOR v. BUCYRUS WATER CO. et al. (No. 4,936.) (Supreme Court of Ohio. Feb. 23, 1898.) Error to circuit court, Crawford county. Wickham, D. Cahill, F. S. Monnett, and R. V. Sears, for plaintiff in error. E. B. Finley, Thomas Beer, and S. W. Bennett, for defendants in error. No opinion. Judgment reversed on authority of Elyria Gas & Water Co. v. City of Elyria (third paragraph of syllabus) 57 Ohio St. 374, 49 N. E. 335, and cause remanded.

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COMMERCIAL BANK OF MORRIS SHARP & CO. v. PATTON, Treasurer. (No. 5,651.) (Supreme Court of Ohio. Feb 15, 1898.) Error to circuit court, Fayette county. John Logan, for plaintiff in error. Harper & Harper, for defendant in error. No opinion. Judgment affirmed on the authority of Treasurer v. Bank, 47 Ohio St. 503, 25 N. E. 697. BURKET, J., dissents.

CORDS v. MCCAFFERTY. (No. 4,783.) (Supreme Court of Ohio. Nov. 16, 1897.) Error to circuit court, Hamilton county. Keam & Keam, for plaintiff in error. C. L. Lundy and E. B. Molony, for defendant in error. No opinion. Judgment affirmed.

CORRE v. ROGERS. (No. 4,820.) (Supreme Court of Ohio. Dec. 7, 1897.) Error to circuit court, Hamilton county. Healy & Brannan and J. J. Muir, for plaintiff in error. Wright & Wright, for defendant in error. No opinion. Judgment affirmed on the ground that one cause of reversal was that the verdict was against the weight of the evidence. Other ques tions not passed upon.

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COSTELLO et al. v. HENKEL et al. 4.944.) (Supreme Court of Ohio. Jan. 18, 1898.) Error to superior court of Cincinnati. W. F. Chambers, for plaintiffs in error. Louis J. Dolle, for defendants in error. No opinion. Judgment affirmed.

CRANE et al. v. LEWIS & TALBOTT STONE CO. et al. (No. 4,908.) (Supreme Court of Ohio. Nov. 30, 1897.) Error to superior court of Cincinnati. Charles W. Baker, for plaintiffs in error. Goebel & Bettinger, for defendants in error. No opinion. Judgment affirmed.

CRITCHFIELD et al. v. CASSIL. (No. 4.857.) (Supreme Court of Ohio. Nov. 16, 1897.) Error to circuit court, Knox county. A. R. McIntire, John Adams, and Critchfield & Graham, for plaintiffs in error. William M. Koons and William L. McElroy, for defendant in error. No cpinion. Judgment affirmed.

DAY et al. v. MILLER. (No. 4.881.)_(Supreme Court of Ohio. Nov. 16, 1897.) Error to circuit court, Cuyahoga county. A. A. Stearns and A. H. Weed, for plaintiffs in error. M. H. Solloway and William H. Miller, for defendant in error. No opinion. Judgment affirmed.

DELAWARE BREWING & ICE CO. et al. v. FIRE ASS'N OF PHILADELPHIA et al. (No. 4,960.) (Supreme Court of Ohio. Dec. 7, 1897.) Error to circuit court, Delaware county. Julius L. Anderson, for plaintiffs in error. Henry M. Huggins, Huggins & Sowers, and R. A. Harrison, for defendants in error. No opinion. Judgment affirmed.

DEVER v. STIFFLER et al. (No. 4,792.) (Supreme Court of Ohio. Nov. 23, 1897.) Error to circuit court, Jackson county. John T. Moore and Tripp & Tripp, for plaintiff in error. S. F. White, R. L. Grimes, and J. K. McClung, for defendants in error. No opinion. Judgment affirmed.

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