hands by virtue of his said office, and which others, has its exceptions. One of the wellsum was then and there due from the said known exceptions is that where the terms Edwin R. Stropes as treasurer, is aforesaid, of the statute are broader than the intent to his successor in office, the said James E. of the legislature the indictment must be so Bull, as treasurer of Greene county, Indiana, drawn as to effectuate the intention of the as aforesaid; that immediately after the said legislature by which it was framed. State James E. Bull had entered upon the dis- v. Turnbull, 78 Me. 392, 6 Atl. Rep. 1; Comcharge of his duties as such treasurer of monwealth v. Slack, 19 Pick. 304; State v. Greene county, in the state of Indiana, he Griffin, 89 Mo. 49, 1 S. W. Rep. 87; Moore, demanded of the said Edwin R. Stropes the Crim. Law, § 171; Bates v. State, 31 Ind. 72; said fourteen thousand four hundred and Gillett, Crim. Law, § 132; Schmidt v. State, fifty-nine dollars and forty-three cents, ($14,- 78 Ind. 41; State. v. Welch, 88 Ind. 308; 459.43,) and demanded of him to pay over or Bowles v. State, 13 Ind. 427. In the case of account for all moneys which had come into State v. Welch, supra, it was said by this his hands by virtue of the said office; that court: “It is a general rule, also, that it is the said Edwin R. Stropes failed and refused, sufficient to charge the offense in the lanand has ever since failed, to pay over or ac-guage of the statute defining it; but to this count for the said fourteen thousand four rule there are exceptions. One of these is hundred and fifty-nine dollars and forty-three where the statute is not to be taken in the cents, ($14,459.43,) or any part of it, con- broad meaning of the words used, but limittrary,” etc. The court overruled a motion to ed by construction to a special subject or quash the above indictment, and the appel- matter; in which case the indictment should lant excepted, and thereupon entered a plea charge the crime so as to bring it within the of not guilty. A trial of the cause by a jury construction placed upon the act." To the resulted in a verdict finding the appellant same effect is the case of Bowles v. State, 13 guilty as charged, and fixing his punishment. Ind. 427, and Bates v. State, 31 Ind. 72. Over a motion for a new trial, judgment was The case of Schmidt v. State, 78 Ind. 41, was rendered on the verdict, from which he ap- a prosecution against the defendant for havpeals to this court.

ing in his possession, with intent to sell the The first supposed error relied upon by the same, diseased meat, in violation of the proappellant for the reversal of the judgment vision of section 2070, Rev. St. 1881. This against him is that the court erred in over-court, in commenting upon that statute and ruling his motion to quash the indictment. the information in that case, said: “The It is earnestly contended by counsel for the construction we place upon the statute is appellant that the indictment before us is de- narrower than the general words. By confective, in that it fails to aver that the acts struction, we limit the operation of the gentherein charged were done either unlawfully, eral words to cases where the accused had fraudulently, or feloniously. On the other knowledge of the quality of the article, and hand, it is contended by counsel for the state where the sale made or intended was for that the indictment falls within the general food. In such cases, it is not sufficient to rule that it is sufficient, in charging a purely charge the offense in the language of the statstatutory crime, to follow the language of ute.” It will thus be seen that where a crim

As to inal statute is not to receive a construction whether it is sufficient in a case under the as broad as the language used would seem to statute, for the violation of which the appel-warrant, but is to be narrowed by construclant stands charged, to charge the defendant tion, an indictment drawn in the language of in the language of the statute alone, depends the statute will not be sufficient. In the light upon the construction to be placed upon that of this rule, we proceed to an examination of statute. If an outgoing clerk, sheriff, or the statute now before us, with a view of treasurer is to be deemed guilty of a felony ascertaining the intent of the legislature in for failing to pay over to his successor in of its enactment. It is well known that it is fice the money remaining in his hands, with the duty of a public officer, charged with the out regard to the surrounding circumstances receipt and disbursement of public funds, to or particular facts in the case, then it must preserve such funds for the uses for which follow that a charge against him in the lan- they were intended. Notwithstanding such guage of the statute is sufficient; for it is un- known duty, it frequently occurred that such doubtedly the general rule that, where a officers, while in office, appropriated and concrime is created by statute defining the of-verted the funds intrusted to them to their fense created, it is sufficient in an indictment own use, which fact could not well be known to charge the offense in the language of the until a successor was elected and qualified, statute. State v. Bougher, 3 Blackf. 307; and they were called upon to account, and Pelts v. State, Id. 28; Marble v. State, 13 until a criminal prosecution for such converInd. 362; Malone v. State, 14 Ind. 219; Stuck- sion was barred by the statute of limitations. myer v. State, 29 Ind. 20; Shinn v. State, 68 In contemplation of law, all moneys received Ind. 423; State v. Allisbach, 69 Ind. 50; by a public officer, and not legally disbursed, Howard v. State, 87 Ind. 68; Toops v. State, remain in his hands. Doubtless he could not 92 Ind. 19; State v. Miller, 98 Ind. 70; State be heard, when called upon by his successor v. Berdetta, 73 Ind. 185; Skinner v. State, for the funds remaining in his hands, to give ante, 115. But this general rule, like most' as an excuse for not paying the same over

that he had wrongfully converted the same to ELLIOTT, C. J. Jesse Vawter was in the his own use. To permit him to excuse him- service of the appellant, in the capacity of a self under such a plea would be to allow him brakeman on one of its freight trains; and to take advantage of his own wrong,-a thing on the morning of June 11, 1885, while en. the law never tolerates. For a failure to ac-gaged in the discharge of the duties of his count to his successor for funds thus wrong-service at Stines ville, his leg was broken. fully converted to his own use, we think he Dr. Judah, a competent and skillful surgeon would clearly be liable to prosecution and of Stinesville, was called to treat the injured punishment, under the statute we are now man. He set, dressed, and bandaged the considering.

broken limb, and gave the unfortunate man Again, at the time his successor is elected such treatment as his injury required. After and qualified he may have funds in his act- the broken limb had been set and bandaged, ual possession which he withholds, with a the conductor caused the appellees, who lived view of appropriating the same to his own at Gosport, to be summoned by telegraph; use, and thus depriving the rightful owner of and one of them obeyed the summons, and such funds. In that, and in perhaps other treated the patient, in conjunction with Dr. cases, he would be liable to prosecution un- Judab. The appellant had fully discharged der this statute. But if the funds which its duty to its injured brakeman when it procaine into his hands were destroyed by the act cured the services of a competent surgeon. of God; or if the safe in which he should The conductor had no authority to employ place them should be robbed, and the money other surgeons; for his authority was special, stolen, without his fault; or if he should de- not general, and it did not extend beyond the posit the same in a bank of good repute for duty created by the emergency which resolvency, and they should be lost, without his quired him to act. With that duty his aufault; or if, in the disbursement of the funds, thority arose, and with it terminated. He he should make an honest mistake, and pay had authority to do what the emergency deout more than he should have paid,—we domanded, in order to preserve his injured felnot think he would be liable to a criminal low employe from serious harm; but he had prosecution under this statute, and yet by no authority to do more. When the comthe terms of the statute he would be liable. pany had procured the services of a compeIt is evident, therefore, that this statute is tent surgeon, it did all that it was morally oi not to be construed in as broad a sense as its legally bound to do; and the conductor could language would imply, and an indictment not impose upon it any greater obligation. simply following its language is bad. We We hold that the conductor did have author. think that the indictment should have charged ity to at once employ the surgical aid dethat the failure of the appellant to pay over manded by the urgency of the occasion; but to his successor in office the moneys remain- we hold, also, that his authority did not exing in his hands was felonious. It is not tend beyond this limit. Railroad Co. v. Mceven charged that it was unlawful. For a Murray, 98 Ind. 358; Railroad Co. v. Brown, failure to charge that the appellant felonious-107 Ind. 336, 8 N. E. Rep. 218; Railroad Co. ly failed to pay over to his successor in office v. Stockwell, 118 Ind. 98, 20 N. E. Rep. 650. the money remaining in his hands, the in- In the case of Railroad Co. v. Brown, sudictmen: before us is defective, and should pra, the distinction is drawn between cases have been quashed. Judgment reversed, where the conductor may bind the company with instructions to the circuit court to quash and cases where he may not; and this case the indictment. The clerk will give the belongs to the latter class. The authority of usual notice to return the prisoner to the the conductor was exhausted when a compesheriff of Greene county.

tent surgeon was procured; and he could not,

as the agent of the company, employ aùdi(121 Inå. 353)

tional surgeons. If the urgency of the case LOUISVILLE, N. A. & C. Ry. Co. 0. SMITH demanded additional surgical aid, the surgeon et al.1

called might, possibly, be justified in sum(Supreme Court of Indiana. Nov. 5, 1889.)

moning it; but, as held in Railroad Co. v. MASTER AND SERVANT_LIABILITY OF MASTER.

Brown, supra, if additional assistance is reWhere a brakeman is injured in the dis-quired, the surgeon first called must include charge of his duties, and a competent surgeon, the expense in his charges. It is immaterial called with the conductor's consent, attends him, whether Dr. Judah was called by a brakethe conductor has no authority to engage addition- man or by the conductor in person; for if he al surgeons on behalf of the railroad company.

was called by the direction, express or imAppeal from circuit court, Owen county; plied, of the conductor, or if the conductor A. M. CUMING, Judge.

confirmed what had been done, he could not Action by John W. Smith and another subsequently employ another surgeon. It is against the Louisville, New Albany & Chi- possible that Dr. Smith may be entitled to cago Railway Company to recover for medio compensation for one visit,—that made is cal services rendered to one of defendant's obedience to the telegram,-for it may be brakemen. Judgment for plaintiffs. De- that he had a right to act upon it at once; fendant appeals.

but, when he found the injured man attend. Geo. W. Friedley and E. E. Field, for ap-ed by a competent surgeon, he had no right pellant. Pickens & Pickens, for appellees. to continue to give the case attention, ana * Rehearing denied.

charge the company. He was bound to know "Signed this 24th day of September, 1887, that when the agent, who possessed limited, together with the finding of facts upon the special authority, had procured the services affidavits hereto attached and made a part of a competent surgeon, his authority was hereof." The affidavits referred to present exhausted; and if, with this knowledge, he what is claimed to be an excuse for not precontinued to give the injured man attention, senting the bill of exceptions to the presiding he did it at the expense of some other person judge within the time limited. They show than the agent's principal. Judgment re- that on the 6th day of August, 10 days before versed.

the expiration of the time limited for present

ing the bill, the judge who presided at the (120 Ind. 431)

trial, having no information that a bill of exRIGLER 0. RIGLER et al.1

ceptions was being prepared to be presented (Supreme Court of Indiana. Nov. 2, 1889.) to him, left his home in Terre llaute and BILL OF EXCEPTIONS.

went to Madison, Wis., and that he did not Under Rev. St. Ind. 1881, $ 629, which pro- return until the 30th of the month. The abvides that a bill of exceptions must be presented to sence of the judge is relied on as an excuse the judge within such time as may be allowed, a bill of exceptions presented and signed after the for not presenting the bill of exceptions until expiration of such time does not become part of the after the time had expired. Without decidrecord, in the absence of any order that the pressing whether or not it would be competent in entation and signing be nunc pro tunc.

any case to show by affidavits an excuse for Appeal from circuit court, Vigo county; not presenting a bill of exceptions, as the J. M. RABB, Special Judge.

statute requires, we are quite sure that the C. F. McNutt, T. W. Harper, s. C. Davis, affidavits show no excuse in the present case and S. B. Davis, for appellant. Wm. Eggle which can be considered by an appellate triston, Edward Reed, B. E. Rhodes, E. F. bunal. Underwood v. Hossack, 40 Ill. 98, Williams, and Thos. W. Haymond, for appel- relied on to sustain the bill, supports the oplees.

posite view. In that case the presiding judge

actually signed and filed the bill, and the su. MITCHELL, J. This was a proceeding to preme court held that it would be presumed, review a judgment of the Vigo circuit. It is until the contrary appeared, that it was precharged in the complaint for review that sented to him for his signature within the there is manifest error apparent upon the time. “But," the court adiled, “if the case face of the record of the proceedings sought were different, as a matter of fact, we could to be reviewed, in that the court erred in not help the plaintiff under this motion, as overruling the plaintiff's motion for a new this court cannot direct that to be made a trial, to which ruling it is alleged the plain- matter of record which was not made so in tiff excepted, and tendered a bill of exceptions the court below." In Illinois there was no containing all the instructions and evidence, statute requiring that the bill should show which bill, it is a verred, was signed by the upon its face when it was presented to the court, and made a part of the record. What judge. Our statute, [Rev. St. 1881,] section purports to be the bill of exceptions thus al- 629, is imperative upon two points: (1) The leged to have been made a part of the record party “must, within such time as may be alin the original proceeding, together with cop-lowed, present to the judge a proper bill of ies of the pleadings and judgment, are made exceptions;” (2) “the date of the presentaa part of the complaint. The judgment was tion shall be stated in the bill of exceptions." reversed and set aside for alleged error in ad- Buchart v. Burger, 115 Ind. 123, 17 N. E. mitting certain testimony over the plaintiff's Rep. 125; Orton v. Tilden, 110 Ind. 131, 10

The propriety of the ruling of the N. E. Rep. 936. A bill of exceptions does court in holding the complaint to review suffi- not become a part of the record unless it bas cient on demurrer depends upon whether or been presented to the judge within the time not the bill of exceptions which purports to limited, and the date of its presentation stated contain the evidence in the original case was in the bill. When so presented, signed, and presented to the judge and filed so as in fact filed, it becomes a part of the record. It is to become part of the record. The settled not proper for an appellate tribunal to instirule is that a complaint to review a judgment tute an inquiry or investigation, outside of for error apparent on the record will only lie the record itself, for the purpose of ascertainfor causes which would have been available ing what the record contains, or to determine on appeal. Baker v. Ludlam, 118 Ind. 87, 20 whether excuses exist for not making a comN. E. Rep. 648. The motion for a new trial plete record. Wishmier v. State, 110 Ind. in the original case was overruled on the 18th 523, 11 N. E. Rep. 291. The record must be day of May, 1887, and 90 days' time was given judged by what appears upon its face. The within which to present bills of exceptions proper practice of signing or presenting bills for the signature of the presiding judge. The of exception, after the time limited therefor bill of exceptions containing the evidence has expired, is to have it done by an order of was signed and filed on the 24th day of Sep- the presiding judge, nunc pro tunc. As aptember, 1887. There is nothing in or about plicable to cases of that character, it is said the bill to indicate when it was presented to in Walton v. U. S., 9 Wheat. 651: “But in all the presiding judge, but attached to it is a such cases the bill of exceptions is signed certificate, signed by the judge, as follows:' nunc pro tunc, and it purports on its face to

1 Rehearing denied,

be the same as if actually reduced to form | cedent and his wife, and that they performed and signed pending the trial; and it would their part of the agreement, except so far as be a fatal error if it were to appear other- they were prevented by the conduct of the dewise." Thomp. Trials, § 2810.

cedent. They aver that they cleared up the Whether or not the facts set out in the alli land, worked upon the farm, and attended to davit would have justified the presiding julge the duties of the household, year after year, in allowing the date of its presentation to be for 20 years and more, until the year 1871, inserted in the bill, if that had been done, we when the decedent gave the use of his farm do not decide. It is sure, however, that we to one of the plaintiffs' sons; that since that can only look upon the face of the bill; and, time they have always been ready and willsince it does not conform to the requirements ing to perform their part of the contract, and of the statute, it cannot be regarded as part that Mrs. Vachon did continue to work and of the record. Whether the judge might have care for the decedent and his wife until they made it in form correct, on the facts stated, died, the death of the latter having occurred is another question. It is enough to say he in 1880 and of the former in 1888. It is has not seen fit to do so. The right to pre- averred that the plaintiffs rendered the servsent and file bills of exception after the close ices without any compensation or hope or of the trial is governéd altogether by statute; promise of reward other than the agreement and it is not within the power of this court to above mentioned; that their services were add to or take anything from the statute. It reasonably worth a specified sum per annum; follows that the bill of exceptions purporting and that the decedent, by his last will and to contain the evidence upon which error of testament, in violation of his agreement, delaw was predicated in the complaint was no vised his farm to the son of the plaintiffs, part of the record. The complaint, there- leaving them a small amount of property, not fore, did not state facts sufficient, and the to exceed the sum of $200 in value. ruling of the court in overruling the dem ur It is objected that the complaint does not rer was error. The judgment is reversed, state facts sufficient to constitute a cause of with costs, with directions to the court below action. The agreement was in parol. It reto sustain the demurrer to the complaint. lated to the disposition of real estate of which

the plaintiffs were never put in possession. (121 Ind, 3)

The contract was therefore within the inhiSCIIOONOVER 0. VACHON et al.

bition of the statute of frauds, and was inca(Supreme Court of Indiana. Nov. 5, 1889.)

pable of being specifically enforced, or of sup

porting an action for damages for its nonPAROL CONTRACTS TO MAKE WILLS - LIMITATION

fulfillment. Wallace v. Long, 105 Ind. 522, OF ACTION. 1. A parol agreement to devise a farm in con-5 N. E. Rep. 666; Roehl v. Haumesser, 114 sideration of support for life, though void under Ind. 311, 15 N. E. Rep. 345; Burns v. Fox, the statute of frauds, is sufficient foundation for 113 Ind. 205, 14 N. E. Rep. 541. If the presa claim against the promisor's estate after his ent action had been to enforce specific perdeath for the value of the support rendered.

2. The payment for such support not being formance of the contract, or to recover damdue until the death of the recipient, the statute of ages for its non-performance, the objections limitations does not begin to run against the claim to the complaint would be insurmountable; until the date of such death.

but the action is on a quantum meruit to reAppeal from circuit court, Allen county; cover the value of the services rendered. EDWARD O'ROURKE, Judge.

While an agreement like the one involved in Claim by Zachariah and Esther Vachon the present case will neither be specifically against the estate of Trueman King, de- enforced, nor allowed, unless under special ceased. The claim was allowed, and the ex- circumstances of fraud or bad faith, to serve ecutor, William H. Schoonover, appeals. as a foundation of an action for damages, it is

Wm. P. Breen, for appellant. J. B. Har well settled that such a contract overthrows per, for appellees.

the presumption that services rendered un

der it were performed gratuitously, or under MITCIIELL, J. Vachon and wife filed a a mere expectation that the testator would claim against the estate of Trueman King, voluntarily bestow a legacy upon the person deceased, upon which, after hearing the evi- performing them. Wallace v. Long, supra. dence, the court gave judgment in favor of The complaint, judged by its general scope the plaintiffs for $350. The plaintiffs al- and tenor, seeks to recover the value of the leged that many years prior to his death services rendered, and as a complaint for that King, who had no children, and whose wife purpose it is not subject to the objections was the mother of the plaintiff Mrs. Vachon, urged against it. Although the evidence in agreed with them that if they would live support of the alleged agreement to devise with him and his wife, and help them work the farm is not strong, or of the most satison the farm which King owned, and take factory character, still it cannot be said that care of him and his wife when they needed there is no evidence of such an agreement, or care during their natural lives, respectively, that the finding of the court on any material he would devise to them his farm, to be point is wholly without support. There was theirs after the death of himself and wife. evidence tending to show that the plaintiff It is a verreå that in pursuance of this agree- Zachariah Vachon on one occasion proposed ment the plaintiffs went to live with the de- purchasing 40 acres of land for himself, and

that the decedent dissuaded him from it, say-| bly of the state of Indiana, that it shall be ing: “I intend this farm to be for you and unlawful for any person or persons, compaEsther. You have worked hard enough on ny, corporation, or voluntary association to this by the time it is all cleared up. It will pipe or conduct natural gas from any point be all you need." To this the plaintiff re

To this the plaintiff re- within this state to any point or place withplied, in substance, that he was getting old, out this state. Any person or persons, comand did not want to be deceived; that he did pany, corporation, or voluntary organization not want to clear up the testator's farm, and now or hereafter incorporated under any law then be left without anything when he was of this or any other state, for the purpose of old. From this the court drew the inference drilling and mining for petroleum or natural that there had been an agreement to compen gas, or otherwise acquiring gas or petroleum sate plaintiffs for their work, and we cannot wells, and the products thereof, and to fursay, in the light of all the evidence, that the nish the same to its patrons, or to convert inference was not justified. The case pro- such product into gas for illuminating purceeded upon the theory that compensation poses or fuel, which shall have entered upon was to be made to the plaintiffs for their and acquired by deed of conveyance, or apservices after the death of King and his wife. propriated or condemned, any real estate unAssuming that the evidence supports that der any law of this state, for the purpose of theory, then the claim did not becoine due laying its pipe lines, or for any other puruntil the event occurred which entitled the pose, which shall permit any gas to be conplaintiffs to receive pay. The statute of veyed or carried through its pipes to any limitations did not, therefore, bar the clain, place without this state, or for the purpose of suit having been brought within six years being used without this state, shall forfeit all from the date of the death of the survivor. right, title, and interest in and to all real esThe statute of limitations does not begin to tateso appropriated, conveyed, or condemned, run, where a contract requires a continuing and the pipes laid thereunder, and the same service by one party, until the engagement shall revert to and become the property of has been completed. McKinney v. Springer, the persons or corporations, their heirs, suc8 Blackf. 506; McKinney v. Springer, 3 Ind. cessors, or assigns, who owned the same at 59; Buswell, Lim. § 178. There was no er- the time of such appropriation, conveyance, ror. The judgment is affirmed, with costs. or condemnation: provided, that the provis

ions of this act shall not be so construed as (120 Ind. 575)

to prevent towns or cities divided by any of STATE ex rel. CORWIN V. INDIANA & 0.

the boundary lines of this state, and having OIL, GAS & MINING Co.

a majority of the population of such cities or (Supreme Court of Indiana. Nov. 6, 1889.) towns residing within this state, from being CONSTITUTIONAL LAW-INTERSTATE COMMERCE. supplied with natural gas.” Elliott's Supp.

1. Natural gas, when brought to the surface 8 1875. On the 21st day of February, 1889, and placed in pipes for transportation, is an article an act was passed declaring that the word of commerce.

"mining" should be deemed to include the 2. Act Ind. March 9, 1889, which makes it unlawful for any person, natural or artificial, to con

sinking of gas wells, and that the incorporaduct natural gas from the state, and imposes pen- tion of companies and that the subscriptions alties for so doing, is unconstitutional, as it is leg- of stock under former laws are legalized. On islation on interstate commerce, though by other the same day an act was passed anthorizing acts it is provided that “mining” shall include the sinking of gas wells, and natural gas companies gas companies to extend their pipes beyond the are authorized to appropriate and condemn prop- corporate liinits of towns and cities. On the erty.

20th day of the same month the general asAppeal from circuit court, Jay county; J. sembly passed an act authorizing natural gas R. BOBO, Judge.

companies to appropriate and condemn propAction by the state of Indiana, on the re-erty. Id. $$ 1016, 1809. All of these acts lation of Cornelius Corwin, to have the fran- were put in immediate effect by the proper chises of the Indiana & Obio Oil, Gas & Min- emergency clause. ing Company forfeited, for offenses against The appellee's counsel contend that the act the laws of the state. Judgment for defend- of March 9, 1889, is invalid because it is inant, and plaintiff appeals.

terstate cominerce legislation, and such legJohn M. Smith and L. 8. Mitchener, Atty. islation must be exclusively fideral. In orGen., for appellant. Bell & Morris and John der to give any force to this contention, it is B. Cohrs, for appellee.

necessary to determine at the outset whether

natural gas can be considered an article of ELLIOTT, C. J. At the last session of the commerce. With this preliminary question general assembly, several acts were passed we have but little difficulty. Natural gas is upon the subject of mining, using, and dis- as much an article of commerce as iron ore, posing of natural gas. The validity of one of coal, petroleum, or any other of the like prodthese acts, that of March 9, 1889, is assailed ucts of the earth. It is a commodity which upon the ground that it contravenes the pro- may be transported, and it is an article which visions of the federal constitution. The first may be bought and sold in the markets of the section of the act, which is here the direct country. Mining Co. v. Town of Elwood, subject of controversy, reads thus: “Sec- ( 114 Ind. 332, 16 N. E. Rep. 624; Carothers tion 1. Be it enacted by the general assem-v. Philadelpliia Co., 118 Pa. St. 488, 12 Atl.

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