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In this view we cannot concur. The sale is prohibited. The presence of one not a member of the proprietor's family at stated times is also prohibited. Both are offenses. The question whether one may be convicted twice for the same offense is not before us, but the presence at a prohibited time of one in the place of business, not a member of the proprietor's family, is made an offense, and the offense is clearly charged in the indictment. Petition overruled.

UNION CENT. LIFE INS. CO. v. HOLLOWELL.

(Appellate Court of Indiana. May 11, 1898.) APPEAL-REVIEW-CONFLICTING EVIDENCE-FINDING OF FACT-INTERROGATORIES TO JURY.

1. A judgment based upon special findings of a jury will not be reversed on appeal where the evidence is conflicting, and there was evidence from which the jury could have found as they did.

2. In an action on a life insurance policy, payment of premium is an ultimate fact for the jury, and their finding is conclusive on appeal.

3. Acts 1895, p. 248, provide that interrogatories to be propounded to a jury shall be so framed that the jury will be required to find a single fact in answering each interrogatory. Held that, where interrogatories requested by a party did not comply with the statute, they were properly refused.

Appeal from circuit court, Putnam county; Samuel McGregor, Judge.

Action by Robert T. Hollowell, as administrator, etc., against the Union Central Life Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Frank D. Ader, Henry Warrum, Holstein, Barrett & Hubbard, and Ramsey, Maxwell & Ramsey, for appellant. C. C. Hadley and Brill & Harvey, for appellee.

HENLEY, J. This action was begun by the appellee upon a policy of insurance issued by the appellant to one John C. Koehler. The policy was issued on the 6th day of December, 1893, and on the 27th day of February, 1894, the said Koehler died. Payment of the policy by the appellant having been refused, this action was instituted by the administrator of the decedent. This cause is here for the second time. The opinion disposing of the first appeal will be found reported in the cause of Insurance Co. v. Hollowell, 14 Ind. App. 612, 43 N. E. 277. To the complaint of the appellee the appellant answered in three paragraphs,-the first a general denial; the second pleading a condition of the policy sued on, which rendered it void if the person upon whose life the policy was issued committed suicide; the third alleged that the decedent had represented in his application for insurance that he was a total abstainer from the use of intoxicants, when in fact he was an intemperate man in that respect, and a free drinker of intoxicants. There was a

reply filed in general denial, and upon the issues thus presented there was a trial by jury, and a special verdict ordered returned under the act of 1895, providing for special verdicts by way of answers to interrogatories. Both parties moved for judgment upon the special verdict. The motion by appellee for judgment upon the special verdict was sustained, and that of appellant overruled.

The questions presented to the court by this appeal all arise upon the motion for a new trial. It is contended by counsel for appellant that there is no evidence to sustain the findings of the jury that John C. Koehler was a total abstainer from the use of intoxicants; that there is no evidence to sustain the findings of the jury that said Koehler died from natural causes, or that he did not commit suicide; and that there was no evidence to sustain the finding of the jury that the premium due upon the policy had been paid. Appellee's counsel do not contend but that these are all material facts necessary to be found before a recovery could be had under the issues joined. There can be no doubt but that the jury have found all the facts necessary to a recovery by appellee. The findings are very clear and explicit upon all the material points, and the only question which arises thereon is whether or not there is any evidence to support the findings. Upon the question of whether or not the decedent was a total abstainer from the use of intoxicants, the jury found as follows: "Inter. 30. At the time and date the said John C. Koehler made application to the defendant for insurance upon which the policy in suit was issued, was he a total abstainer in and from the use of alcoholic, malt, or vinous liquors? Ans. Yes. Inter. 31. At the time and date of the application of the said John C. Koehler for the insurance on which the policy in suit was issued, was he, the said John C. Koehler, a total abstainer from the use of intoxicating liquors? Ans. Yes. Inter. 32. At the time and date of the said John C. Koehler's application to defendant for the insurance on which the policy in suit was issued, was he, the said John C. Koehler, addicted to the use of alcoholic, malt, or vinous liquors? Ans. No. Inter. 33. At the time of the said John C. Koehler's application for the insurance upon which the policy in suit was issued, was he not in the habit of drinking beer? Ans. No. Inter. 34. At the time of making the appliIcation to the defendant for the insurance policy sued on, did he, the said John C. Koehler, use intemperately alcoholic, malt, or vinous liquors? Ans. No." The law regards representations made by the applicant in an application for insurance as a warranty to the insurer that the facts so stated are exactly as represented. They must be literally true, whether material or immaterial, or the policy is void. Insurance Co. v. Benton, 87 Ind. 132; Insurance Co. v. Cannon,

48 Ind. 264; Pierce v. Insurance Co., 62 Barb. 636; Insurance Co. v. Monninger, 18 Ind. 352; Insurance Co. v. Bevis, 18 Ind. App. 17, 46 N. E. 928. The jury in this case, by its answer to interrogatory numbered 30, said that the representation made by the decedent was literally true. Is there any evidence to sustain this finding? There was evidence to show that decedent was in the habit of drinking beer, that he was drunk nearly every Saturday night, that he often went to his meals at the hotel where he boarded in such an intoxicated condition that he was hardly able to sit at the table and feed himself. On the other hand, a large number of witnesses testified that they had often seen decedent, and had never seen him intoxicated, had never detected the smell of intoxicants on his breath, and had known him to refuse to drink intoxicants when offered him. Seventeen witnesses testified that they were often in the company of decedent, and that at no time did they ever know him to take any intoxicants, or in any way show any sign of being intoxicated. One of these witnesses was the keeper of the hotel where decedent boarded during the time covering the period in which the policy in suit was issued to him. We cannot say that the findings of the jury upon this subject were unauthorized. It was a question of fact, and there was evidence from which the jury could have found as they did find. Did decedent voluntarily take his own life? The presumption is that he did not. Insurance Co. v. Nitterhouse, 11 Ind. App. 155, 38 N. E. 1110; May, Ins. § 325. The evidence upon this point is conflicting, and we will not disturb the finding of the jury.

The jury also found that the premium on the policy of insurance issued by appellant upon the life of decedent had been paid. Payment is an ultimate fact which the jury is authorized to find. Wipperman v. Hardy, 17 Ind. App. 142, 46 N. E. 537; Braden v. Lemmon, 127 Ind. 9, 26 N. E. 476; 1 Thomp. Trials, § 1253.

It is further contended that the lower court erred in refusing to submit certain interrogatories to the jury. These interrogatories were submitted to the jury under the special verdict act of 1895, one of the requirements of which is that "the same shall be in the form of interrogatories so framed that the jury will be required to find one single fact in answering each of such interrogatories." Acts 1895, p. 248. Neither of the interrogatories refused complied with the statute, and the court properly refused them. The lower court did not refuse to allow counsel for appellant to discuss the interrogatories in their argument to the jury, and, if counsel for appellee saw fit to discuss the interrogatories in their argument, we see no reason why appellant should complain. A careful examination of the entire record convinces us that the judgment of the lower court ought to be affirmed. Judgment affirmed.

CHANDLER v. PITTSBURGH PLATEGLASS CO.

(Appellate Court of Indiana. May 12, 1898.) GAS LEASE-RIGHT TO RENTALS.

A lease of the privilege of withdrawing natural gas from the soil, reserving annual rentals during its continuance, is a leasehold interest, and unaccrued rents pass by a conveyance of the land.

Appeal from superior court, Howard county; Hiram Brownlee, Judge.

Action by Elizabeth Chandler against the Pittsburgh Plate-Glass Company. From a judgment for defendant, plaintiff appealed. Reversed.

Moon & Wolf, for appellant. Blackledge & Shirley, for appellee.

COMSTOCK, J. Appellant sued appellee to recover rents under a gas lease upon certain lands of which she is, and was at the time of the commencement of this suit, the owner. The lease provided for the annual payment of rent during its continuance. The question discussed is whether the owner of land, who has executed a gas lease, and afterwards conveys the land, is entitled to the rents maturing after the conveyance, or whether they belong to the grantee. The trial court, in sustaining the demurrer to the complaint, held that the rents belong to the original lessor, though maturing after the conveyance. This decision was upon the theory that the contract in suit was one of sale, by which certain privileges pertaining to the land described therein were sold to the Diamond Plate-Glass Company, and through it to the appellee, and that the relation of landlord and tenant was not created thereby. This precise question has not been passed upon, as we are advised, although in the recent case of Swint v. Oil Co., 38 Atl. 1021 (decided Jan. 3, 1898), the supreme court of' Pennsylvania assumed the right to the rents accruing subsequent to the deed to be in the. grantee of the reversion of lands leased for oil purposes. The analogies support the proposition that the right to the rents accruing after the conveyance of the land is in the grantee. Rents are an incident to the ownership of the land. A lease to till gives the right to use the land for one purpose; a gas lease gives the right to use for another purpose. A conveyance of land leased for tillage or other use conveys to the grantee a right to all rents on the lands thereafter maturing. Lindley v. Dakin, 13 Ind. 388; Page v. Lashley, 15 Ind. 152; King v. Anderson, 20 Ind. 385; Allen v. Shannon, 74 Ind. 164; McClead v. Davis, 83 Ind. 263; Kellum v. Insurance Co., 101 Ind. 455; Swope v. Hopkins, 119 Ind. 125, 21 N. E. 462; Butt v. Ellett, 19 Wall. 544; Howland v. Coffin, 9 Pick. 52; Van Rensselaer v. Hays, 19 N. Y. 68; Van Renssalaer v. Ball, Id. 102; Perrin v. Lepper, 34 Mich. 292; McGuffie v. Carter, 42 Mich. 497, 4 N. W. 211; Hansen v. Prince, 45

Mich. 519, 8 N. W. 584; Page v. Culver, 55 Mo. App. 606; Mills Co. v. Edwards, 24 Or. 475, 33 Pac. 987; Springer v. Phillips, 71 Pa. St. 60; Morrow v. Sawyer, 82 Ga. 226, 8 S. E. 51; Zink v. Bohn (Super. Ct. Buff.) 3 N. Y. Supp. 4; Jack. & G. Landl. & Ten. §§ 982993; 12 Am. & Eng. Enc. Law, p. 683. The statute has abolished the necessity for attornment. Burns' Rev. St. 1894, § 7096 (Rev. St. 1881, § 5215). A transfer by inheritance of land leased for mining solid minerals transfers the right to undue rents. Hendrix v. McBeth, 61 Ind. 473; Hendrix v. Hendrix, 65 Ind. 329; McDowell v. Hendrix, 67 Ind. 513. This rule was applied to rents maturing on land from an oil and gas lease thereon. Woodburn's Estate, 138 Pa. St. 606, 21 Atl. 16. A conveyance by deed is as effective as a conveyance in inheritance to transfer rents not accrued to the grantee. Burns' Rev. St. 1894, §§ 7096-7098 (Rev. St. 1881, §§ 52155217). Ir Manderbach v. Orphans' Home, 109 Pa. St. 231, 2 Atl. 422, the court held that a conveyance of land upon which there was a flowing spring transferred the right to water rents thereafter maturing under a grant of perpetual right to use water therefrom for a yearly compensation. The same court, in Wettengel v. Gormley, 160 Pa. St. 559, 28 Atl. 934, held that a lease for gas or oil, owing to the vagrant character of the substances, partakes of the character of a lease for general tillage, rather than a lease for mining or quarrying the solid minerals. The supreme court of this state holds that natural gas reduced to possession is personal property, but that the title does not vest in any private owner without it is reduced to actual possession. There can be no absolute, permanent property in natural gas until reduced to possession and placed under control. It is held to be a mineral, but of a peculiar kind. The title to it is likened to that in wild animals or fowls "in their fugitive and wandering existence," or in fish passing up and down a stream. State v. Ohio Oil Co. (Ind. Sup.) 49 N. E. 812, and authorities there cited. To construe the lease in question as a sale of the natural gas would be entirely inconsistent with the doctrine laid down in the case last cited. The contract in question was for the use of land for the purpose therein named, and the right to the compensation agreed to be paid for its use accruing after the conveyance of the land was in the grantee. Judgment reversed, with instructions to overrule the demurrer to the complaint.

NAMES v. STATE. (Appellate Court of Indiana. May 12, 1898.) ADULTERY-INDICTMENT-BILL OF EXCEPTIONS. 1. An indictment for adultery sufficiently shows that the woman has a husband living, 50 N.E.-26

where it charges, "and the said A. being then and there a married woman, and the wife of one J."

2. Affidavits to sustain causes assigned for a new trial in a criminal case must be brought into the record by a bill of exceptions; Burns' Rev. St. 1894, § 662 (Rev. St. 1881, § 650), which provides that affidavits may be made a part of the record by order of court, applying exclusively to civil cases.

Appeal from superior court, Laporte county; G. D. H. Gibson, Judge.

Charles N. Names was convicted of adultery, and he appeals. Affirmed.

Charles L. Jewett and Henry E. Jewett, for appellant. Voight & Stotsenburg and John W. Baldwin, for appellee.

ROBINSON, C. J. Appellant and one Anna Jones were indicted for adultery, and, on motion for separate trials, appellant was separately tried; resulting in a verdict of guilty, and a fine of $200, and imprisonment in the county jail for 30 days.

*

It is argued that there is no allegation in the indictment that, at the time of the alleged offense, Anna Jones had a husband living. Adultery is sexual intercourse between a married woman and any man other than her husband. State v. Smith (Ind. App.) 47 N. E. 685; State v. Chandler, 96 Ind. 591. Upon the point in question the indictment charges that "the said Charles N. Names, being then and there and the said Anna Jones being then and there a married woman and the wife of one William Jones, did then and there live," etc. The language used necessarily implies that William Jones is living. A woman cannot be a wife unless she has a husband living. If he dies, or they are divorced, she is no longer his wife. A wife is a woman who has a husband living. The charge is not simply that she had been married, but that she was then and there a married woman, and the wife of William Jones. The indictment is good. Gillett, Cr. Law, § 193; Crane v. People (Ill. Sup.) 48 N. E. 54; Burns' Rev. St. 1894, § 1964 (Rev. St. 1881, § 1891).

The only questions presented by counsel on the motion for a new trial are certain alleged errors of the court, and misconduct of a juror. These do not appear in the record, except as set out in the motion for a new trial. Affidavits were filed in support of the motion for a new trial, but these have not been brought into the record by bill of exceptions. There is no bill of exceptions in the record, and nothing that purports to be a bill of exceptions. It is well settled that affidavits to sustain causes assigned for a new trial in a criminal case must be brought into the record by a bill of exceptions. Burns' Rev. St. 1894, § 662 (Rev. St. 1881, § 650), has no application to criminal cases. Graybeal v. State, 145 Ind. 623, 44 N. E. 641. Judgment affirmed.

HUBBS et al. v. STATE ex rel. KURTZ. (Appellate Court of Indiana. May 17, 1898.) DISMISSAL OF ACTION-NEW TRIAL.

1. That a demand sued on has been paid off is matter of defense, and not ground for dismissal of an action to enforce the demand.

2. Under Horner's Rev. St. 1897, § 559 (Burns' Rev. St. 1894, § 568), providing for a new trial where the "verdict or decision is not sustained by sufficient evidence, or is contrary to law," the word "decision" is used in the sense of finding upon the facts where the cause is tried by the court; and a motion for a new trial on the ground that "the finding and judg ment of the court is contrary to the evidence," and "the finding and judgment of the court is contrary to law," states no statutory ground for a new trial.

Appeal from circuit court, Perry county; Edward Gough, Judge.

Action by the state, on the relation of Henry Kurtz, against Gibson Hubbs and others. From a judgment for plaintiff, defendants appeal. Affirmed.

William A. Land, for appellants. Sol H. Esarey, for appellee.

BLACK, J. This was an action upon the bond of a township trustee, on the relation of his successor in office. Upon the appearance of the appellants, they moved to dismiss the action, "for the reason," as stated in the motion, "that the same has been paid off in the sum of $3,500, and that the costs of this action shall be adjudged against the defendants." This motion having been overruled, issues were formed, which were tried by the court, the finding being against the appellants. The court having rendered judgment upon the finding, the appellants moved for a new trial, "for the following reasons: Firstly, the finding and judgment of the court is contrary to the evidence; secondly, the finding and judgment of the court is contrary to law." This motion having been overruled, the defendants appealed to the supreme court. The cause has been transferred from that court.

There was no error in the overruling of the motion to dismiss. The statement that the demand had been paid off was an assertion not in any proper manner established, and the correct method of establishing it was by proof under an answer setting up the fact as matter of defense upon the merits. Such matter is not proper ground for dismissal. So, also, there was no error in overruling the motion for a new trial. The only recognizable reasons for a new trial which can be supposed to have been contemplated by the appellants are those comprehended in the sixth subdivision of the causes for a new trial in section 559, Horner's Rev. St. 1897 (section 568, Burn's Rev. St. 1894), as follows: "Sixth. That the verdict or decision is not sustained by sufficient evidence, or is contrary to law." The word "decision" is used in this clause of the statute in the sense of finding upon the facts where the cause is tried by

the court. Wilson v. Vance, 55 Ind. 584; Christy v. Smith, 80 Ind. 573; Rosenzweig v. Frazer, 82 Ind. 342; Rodefer v. Fletcher, 89 Ind. 563. The motion before us did not state a ground for which a new trial may be granted under the statute. The judgment is affirmed.

HYATT et al. v. CITY OF WASHINGTON et al.

(Appellate Court of Indiana. May 10, 1898.) INJUNCTION-BOND-DAMAGES-PARTIES - MUNICI

PAL CORPORATIONS.

1. Attorney's fees for defending an injunction suit at the trial on the merits may be recovered in an action on the bond, although the injunction was not the sole object of the suit, where the court limits the recovery to the amount expended for fees on account of the injunction.

2. The names of the sureties need not appear in the body of a bond approved by the court when a restraining order is issued.

3. The city is the real party in interest in an action on a bond running to persons designated as officers of the city.

Appeal from circuit court, Daviess county: D. J. Hefron, Judge.

Action by the city of Washington and others against Martha Hyatt and others to recover on an injunction bond. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

Padgett & Padgett, for appellants. C. K. Tharp, for appellees.

ROBINSON, C. J. Appellants, in a former suit, had obtained a temporary restraining order against appellees. The injunction bond was conditioned to pay appellees all damages and costs which might accrue to them by reason of the injunction and restraining order which might be issued. On final hearing, the injunction was dissolved. This action was brought, upon the bond, to recover fees paid to counsel for services rendered at the trial of the case on its merits, which resulted in the dissolution of the injunction. It appears that no motion was made, nor services rendered, in resisting or attempting to dissolve the temporary restraining order, and that the services rendered were at the trial of the case on its merits; and it is argued by appellants' counsel that such services do not come within the conditions of the bond, and that they are not damages resulting from the granting of the temporary restraining order. It is held that, where the injunction is the sole object of the action, the necessity of paying counsel fees in defending the case on its merits is an actual damage sustained by reason of the injunction, and such fees may be recovered in an action on the bond. Raupman v. City of Evansville, 44 Ind. 392; Noll v. Smith, 68 Ind. 188. And it is further held that, where other and additional relief is sought in such cases, counsel fees may be allowed, but that they should be restricted to such fees as are necessarily paid in defeating

the injunction. And in the case at bar the record discloses that the trial court limited the recovery to the amount expended for fees on account of the injunction branch of the case. See Robertson v. Smith, 129 Ind. 422, 28 N. E. 857; 2 High, Inj. § 1688; Swan v. Timmons, 81 Ind. 243; Beeson v. Beeson, 59 Ind. 97. While the above cases do not expressly so hold, yet, reasoning from the rules they declare, we are of the opinion that the correct rule is that attorney's fees for defending an injunction suit at the trial on the merits may be recovered in an action on the bond, although the injunction was not the sole object of the action.

The names of the sureties do not appear in the body of the bond. But that is not material, as the court approved the bond when the restraining order was issued. Griffin v. Wallace, 66 Ind. 410; Potter v. State, 23 Ind. 550. Construing the complaint and the bond, filed as an exhibit, together, it is evident that the city of Washington is the real party in interest. There is, in effect, but one obligee named in the bond. Any right accruing to the persons named in the bond as obligees would not, by the express terms of the bond, accrue to them as individuals, but as officers of the municipality. The two persons named are designated as "mayor of the city of Washington" and "marshal of the city of Washington," respectively, and as individuals they have no connection with the matter. This fact clearly distinguishes the case at bar from Hildrup v. Brentano, 16 Ill. App. 443, set out at length in appellants' brief. ment affirmed.

Judg

BRODEN et al. v. THORPE BLOCK SAVING & LOAN ASS'N et al.

(Appellate Court of Indiana. May 13, 1898.) APPEAL FROM SPECIAL TERM-Bond-ForECLOSURE

-ESTOPPEL-Record.

1. Rev. St. 1894, § 1414 (Rev. St. 1881, § 1361) provides that, in an appeal from the special to the general term of the superior court, no bond shall be required, unless shown to be necessary for the protection of the parties, in which case bond shall be given, with such condition as directed by the court. Held, that the requiring of a bond was discretionary, and that the action of the court, requiring a bond and fixing its conditions, could not be reviewed on appeal unless manifest abuse of discretion appeared.

2. In an action on an appeal bond, conditioned that the appellant shall duly prosecute the appeal, and abide and pay the judgment that may be rendered or affirmed against him, a complaint which states that the appellant did not prosecute the appeal with effect, and has wholly failed to abide and pay the judgment affirmed against him, is sufficient.

3. In an appeal to a general term of the superior court from a decree of foreclosure and a personal judgment against appellant, a bond was given, upon affidavit of respondent, showing damage by the appeal, and a probability of a deficiency after the sale of the property, under Rev. St. 1894, § 1414 (Rev. St. 1881, § 1361), providing for the giving of bonds in such cases, conditioned that "appellant would prosecute the appeal with effect, and pay any judgment ren

Rehearing pending.

dered or affirmed against him." Held, that the bond was a statutory bond, and not a commonlaw obligation of indemnity, even though it did not conform to the strict order of the court,-all defects therein being cured by Rev. St. 1894, § 1235 (Horners' Rev. St. 1897, § 1221), providing that no bond taken by an officer shall be void for want of form or substance, and the principal and surety shall be bound to the amount specified in the bond,-and that a recovery could be had against the surety, after affirmance, for a deficiency arising after a sale of the property, not exceeding the amount of the bond.

4. It is too late for a surety on an appeal bond to object that it does not conform to the strict order of the court, after the court has approved it, both as to conditions and sureties. 5. Where the record shows that the longhand manuscript of the evidence had not been filed in the clerk's office until after the bill of exceptions had been approved and signed by the trial judge, the evidence is not in the record, and no exception to the overruling of a motion for a new trial can be considered on appeal.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Action by the Thorpe Block Saving & Loan Association against James Broden, Thomas Markey, and Anna Markey. Judgment for plaintiff and defendant Anna Markey. Defendants Broden and Thomas Markey appeal. Affirmed.

Morris, Newberger & Curtis, for appellants. Carter & Brown, for appellees.

WILEY, J. The appellee the Thorpe Block Saving & Loan Association was the plaintiff below, and the appellants Broden and Thomas Markey and the appellee Anna Markey were defendants. The action was on an appeal bond given in an appeal from the special to the general term of the Marion superior court, and in which such bond Thomas and Anna Markey were principals, and Broden surety. Such proceedings were had as that final judgment was rendered against Broden and Thomas Markey, and in favor of Anna Markey. Appellants' motion for a new trial was overruled, and the record which they have brought here presents only the sufficiency of the second paragraph of the complaint, and the second and third paragraphs of the separate answer of Broden to said second paragraph of complaint. The complaint was originally in three paragraphs, but a dismissal was entered as to the first and third. The appellant Thomas Markey has not assigned error in this court, and hence no question is presented in his behalf. The second paragraph of complaint avers that the appellee association recovered a judgment in the special term of the Marion superior court against Thomas Markey, Peter Zeien, and August Webber for $9,301.55, and a decree of foreclosure against Thomas and Anna Markey and the other defendants; that the real estate embraced in said decree was owned by certain of said defendants (specifying the same in detail); that lot 5 in Brown, Frank & Ketchum's subdivision, etc., as embraced in said mortgage, was owned as follows: The undivided

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