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of the statute are broader than the intent of the legislature the indictment must be so drawn as to effectuate the intention of the legislature by which it was framed. State v. Turnbull, 78 Me. 392, 6 Atl. Rep. 1; Commonwealth v. Slack, 19 Pick. 304; State v. Griffin, 89 Mo. 49, 1 S. W. Rep. 87; Moore, Crim. Law, § 171; Bates v. State, 31 Ind. 72; Gillett, Crim. Law, § 132; Schmidt v. State, 78 Ind. 41; State v. Welch, 88 Ind. 308; Bowles v. State, 13 Ind. 427. In the case of State v. Welch, supra, it was said by this court: "It is a general rule, also, that it is sufficient to charge the offense in the lan

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, as aforesaid, to his successor in office, the said James E. Bull, as treasurer of Greene county, Indiana, as aforesaid; that immediately after the said James E. Bull had entered upon the discharge of his duties as such treasurer of Greene county, in the state of Indiana, he demanded of the said Edwin R. Stropes the said fourteen thousand four hundred and fifty-nine dollars and forty-three cents, ($14,459.43,) and demanded of him to pay over or account for all moneys which had come into his hands by virtue of the said office; that the said Edwin R. Stropes failed and refused, and 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 of not guilty. A trial of the cause by a jury resulted in a verdict finding the appellant guilty as charged, and fixing his punishment. Over a motion for a new trial, judgment was rendered on the verdict, from which he appeals to this court.

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charge the crime so as to bring it within the construction placed upon the act.' To the same effect is the case of Bowles v. State, 13 Ind. 427, and Bates v. State, 31 Ind. 72. The case of Schmidt v. State, 78 Ind. 41, was a prosecution against the defendant for having in his possession, with intent to sell the same, diseased meat, in violation of the provision of section 2070, Rev. St. 1881. This

The first supposed error relied upon by the appellant for the reversal of the judgment 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 crimthe statute creating such crime. 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 Ind. 423; State v. Allisbach, 69 Ind. 50; Howard v. State, 87 Ind. 68; Toops v. State, 92 Ind. 18; State v. Miller, 98 Ind. 70; State v. Berdetta, 73 Ind. 185; Skinner v. State, ante, 115. But this general rule, like most

In contemplation of law, all moneys received by a public officer, and not legally disbursed, remain in his hands. Doubtless he could not be heard, when called upon by his successor for the funds remaining in his hands, to give as an excuse for not paying the same over

He

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 Stinesville, 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 such treatment as his injury required. After the broken limb had been set and bandaged, the conductor caused the appellees, who lived at Gosport, to be summoned by telegraph; and one of them obeyed the summons, and treated the patient, in conjunction with Dr. Judah. The appellant had fully discharged its duty to its injured brakeman when it procured the services of a competent surgeon. The conductor had no authority to employ other surgeons; for his authority was special, not general, and it did not extend beyond the duty created by the emergency which required him to act. With that duty his authority arose, and with it terminated. had authority to do what the emergency demanded, in order to preserve his injured fellow employe from serious harm; but he had no authority to do more. When the company had procured the services of a competent surgeon, it did all that it was morally or legally bound to do; and the conductor could not impose upon it any greater obligation. We hold that the conductor did have authority to at once employ the surgical aid demanded by the urgency of the occasion; but we hold, also, that his authority did not extend beyond this limit. Railroad Co. v. McMurray, 98 Ind. 358; Railroad Co. v. Brown, 107 Ind. 336, 8 N. E. Rep. 218; Railroad Co. v. Stock well, 118 Ind. 98, 20 N. E. Rep. 650. In the case of Railroad Co. v. Brown, supra, the distinction is drawn between cases where the conductor may bind the company and cases where he may not; and this case belongs to the latter class. The authority of the conductor was exhausted when a competent surgeon was procured; and he could not, as the agent of the company, employ additional surgeons. If the urgency of the case

Again, at the time his successor is elected and qualified he may have funds in his actual possession which he withholds, with a view of appropriating the same to his own use, and thus depriving the rightful owner of such funds. In that, and in perhaps other cases, he would be liable to prosecution under this statute. But if the funds which came into his hands were destroyed by the act of God; or if the safe in which he should place them should be robbed, and the money stolen, without his fault; or if he should deposit the same in a bank of good repute for solvency, and they should be lost, without his fault; or if, in the disbursement of the funds, he should make an honest mistake, and pay out more than he should have paid,-we do not think he would be liable to a criminal prosecution under this statute, and yet by the terms of the statute he would be liable. It is evident, therefore, that this statute is not to be construed in as broad a sense as its language would imply, and an indictment simply following its language is bad. We think that the indictment should have charged that the failure of the appellant to pay over to his successor in office the moneys remaining in his hands was felonious. It is not even charged that it was unlawful. For a failure to charge that the appellant feloniously failed to pay over to his successor in office the money remaining in his hands, the indictment before us is defective, and should have been quashed. Judgment reversed, with instructions to the circuit court to quash the indictment. The clerk will give the usual notice to return the prisoner to the sheriff of Greene county.

(121 Ind. 353)

LOUISVILLE, N. A. & C. RY. Co. v. SMITH demanded additional surgical aid, the surgeon

et al.1

(Supreme Court of Indiana. Nov. 5, 1889.) MASTER AND SERVANT-LIABILITY OF MASTER.

called might, possibly, be justified in summoning it; but, as held in Railroad Co. v. Brown, supra, if additional assistance is required, the surgeon first called must include the expense in his charges. It is immaterial whether Dr. Judah was called by a brake

Where a brakeman is injured in the discharge of his duties, and a competent surgeon, called with the conductor's consent, attends him, the 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.

Appeal from circuit court, Owen county; A. M. CUMING, Judge.

was called by the direction, express or implied, of the conductor, or if the conductor confirmed what had been done, he could not subsequently employ another surgeon. It is possible that Dr. Smith may be entitled to compensation for one visit, that made in obedience to the telegram,-for it may be that he had a right to act upon it at once; but, when he found the injured man attendGeo. 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, and

Action by John W. Smith and another against the Louisville, New Albany & Chicago Railway Company to recover for medical services rendered to one of defendant's brakemen. Judgment for plaintiffs. Defendant appeals.

1 Rehearing denied.

versed.

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 the expiration of the time limited for presenting the bill, the judge who presided at the trial, having no information that a bill of exceptions was being prepared to be presented to him, left his home in Terre IIaute and went to Madison, Wis., and that he did not return until the 30th of the month. The absence of the judge is relied on as an excuse for not presenting the bill of exceptions until after the time had expired. Without decid

(120 Ind. 431)

RIGLER v. RIGLER et al.1 (Supreme Court of Indiana. Nov. 2, 1889.) BILL OF EXCEPTIONS.

Under Rev. St. Ind. 1881, § 629, which provides that a bill of exceptions must be presented to the judge within such time as may be allowed, a bill of exceptions presented and signed after the expiration of such time does not become part of the record, in the absence of any order that the pres-ing whether or not it would be competent in entation and signing be nunc pro tunc.

Appeal from circuit court, Vigo county; J. M. RABB, Special Judge.

C. F. McNutt, T. W. Harper, S. C. Davis, and S. B. Davis, for appellant. Wm. Eggleston, Edward Reed, B. E. Rhodes, E. F. Williams, and Thos. W. Haymond, for appellees.

any case to show by affidavits an excuse for not presenting a bill of exceptions, as the statute requires, we are quite sure that the affidavits show no excuse in the present case which can be considered by an appellate tribunal. Underwood v. Hossack, 40 Ill. 98, relied on to sustain the bill, supports the opposite view. In that case the presiding judge actually signed and filed the bill, and the suMITCHELL, 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 added, "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 averred, 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 a part of the complaint. The judgment was reversed and set aside for alleged error in admitting certain testimony over the plaintiff's objection. The propriety of the ruling of the court in holding the complaint to review sufficient on demurrer depends upon whether or not the bill of exceptions which purports to contain the evidence in the original case was presented to the judge and filed so as in fact to become part of the record. The settled rule is that a complaint to review a judgment for error apparent on the record will only lie for causes which would have been available on appeal. Baker v. Ludlam, 118 Ind. 87, 20 N. E. Rep. 648. The motion for a new trial in the original case was overruled on the 18th day of May, 1887, and 90 days' time was given within which to present bills of exceptions for the signature of the presiding judge. The bill of exceptions containing the evidence was signed and filed on the 24th day of September, 1887. There is nothing in or about the bill to indicate when it was presented to the presiding judge, but attached to it is a certificate, signed by the judge, as follows:

1 Rehearing denied,

exceptions;" (2) "the date of the presentation shall be stated in the bill of exceptions." Buchart v. Burger, 115 Ind. 123, 17 N. E. Rep. 125; Orton v. Tilden, 110 Ind. 131, 10 N. E. Rep. 936. A bill of exceptions does not become a part of the record unless it has been presented to the judge within the time limited, and the date of its presentation stated in the bill. When so presented, signed, and filed, it becomes a part of the record. It is not proper for an appellate tribunal to institute an inquiry or investigation, outside of the record itself, for the purpose of ascertaining what the record contains, or to determine whether excuses exist for not making a complete record. Wishmier v. State, 110 Ind. 523, 11 N. E. Rep. 291. The record must be judged by what appears upon its face. The proper practice of signing or presenting bills of exception, after the time limited therefor has expired, is to have it done by an order of the presiding judge, nunc pro tunc. As applicable to cases of that character, it is said in Walton v. U. S., 9 Wheat. 651: “But in all such cases the bill of exceptions is signed nunc pro tunc, and it purports on its face to

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 otherwise." Thomp. Trials, § 2810.

they were prevented by the conduct of the decedent. They aver that they cleared up the land, worked upon the farm, and attended to the duties of the household, year after year, for 20 years and more, until the year 1871, when the decedent gave the use of his farm to one of the plaintiffs' sons; that since that time they have always been ready and willing to perform their part of the contract, and that Mrs. Vachon did continue to work and care for the decedent and his wife until they died, the death of the latter having occurred in 1880 and of the former in 1888. It is

Whether or not the facts set out in the affidavit would have justified the presiding judge in allowing the date of its presentation to be inserted in the bill, if that had been done, we do not decide. It is sure, however, that we can only look upon the face of the bill; and, since it does not conform to the requirements of the statute, it cannot be regarded as part of the record. Whether the judge might have made it in form correct, on the facts stated, is another question. It is enough to say he 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 of the trial is governed altogether by statute; and it is not within the power of this court to add to or take anything from the statute. It follows that the bill of exceptions purporting to contain the evidence upon which error of law was predicated in the complaint was no part of the record. The complaint, therefore, did not state facts sufficient, and the ruling of the court in overruling the demurrer was error. The judgment is reversed, with costs, with directions to the court below to sustain the demurrer to the complaint.

(121 Ind. 3)

SCHOONOVER v. VACHON et al.
(Supreme Court of Indiana. Nov. 5, 1889.)
PAROL CONTRACTS TO MAKE WILLS-LIMITATION
OF ACTION.

1. A parol agreement to devise a farm in consideration of support for life, though void under the statute of frauds, is sufficient foundation for a claim against the promisor's estate after his death for the value of the support rendered.

2. The payment for such support not being due until the death of the recipient, the statute of limitations does not begin to run against the claim

until the date of such death.

Appeal from circuit court, Allen county; EDWARD O'ROURKE, Judge.

Claim by Zachariah and Esther Vachon against the estate of Trueman King, deceased. The claim was allowed, and the executor, William H. Schoonover, appeals.

Wm. P. Breen, for appellant. J. B. Harper, for appellees.

ices without any compensation or hope or promise of reward other than the agreement above mentioned; that their services were reasonably worth a specified sum per annum; and that the decedent, by his last will and testament, in violation of his agreement, devised his farm to the son of the plaintiffs, leaving them a small amount of property, not to exceed the sum of $200 in value.

It is objected that the complaint does not state facts sufficient to constitute a cause of action. The agreement was in parol. It related to the disposition of real estate of which the plaintiffs were never put in possession. The contract was therefore within the inhibition of the statute of frauds, and was incapable of being specifically enforced, or of supfulfillment. porting an action for damages for its non

Wallace v. Long, 105 Ind. 522, 5 N. E. Rep. 666; Roehl v. Haumesser, 114 Ind. 311, 15 N. E. Rep. 345; Burns v. Fox, 113 Ind. 205, 14 N. E. Rep. 541. If the present action had been to enforce specific performance of the contract, or to recover damages for its non-performance, the objections to the complaint would be insurmountable; but the action is on a quantum meruit to recover the value of the services rendered. While an agreement like the one involved in the present case will neither be specifically enforced, nor allowed, unless under special circumstances of fraud or bad faith, to serve as a foundation of an action for damages, it is well settled that such a contract overthrows the presumption that services rendered under it were performed gratuitously, or under MITCHELL, 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 averred 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, saying: "I intend this farm to be for you and Esther. You have worked hard enough on this by the time it is all cleared up. It will be all you need." To this the plaintiff replied, in substance, that he was getting old, and did not want to be deceived; that he did not want to clear up the testator's farm, and then be left without anything when he was old: From this the court drew the inference that there had been an agreement to compen sate plaintiffs for their work, and we cannot say, in the light of all the evidence, that the inference was not justified. The case proceeded upon the theory that compensation was to be made to the plaintiffs for their services after the death of King and his wife. Assuming that the evidence supports that theory, then the claim did not become due until the event occurred which entitled the plaintiffs to receive pay. The statute of limitations did not, therefore, bar the claim, suit having been brought within six years from the date of the death of the survivor. The statute of limitations does not begin to run, where a contract requires a continuing service by one party, until the engagement has been completed. McKinney v. Springer, 8 Blackf. 506; McKinney v. Springer, 3 Ind. 59; Buswell, Lim. § 178. There was no error. The judgment is affirmed, with costs.

bly of the state of Indiana, that it shall be unlawful for any person or persons, company, corporation, or voluntary association to pipe or conduct natural gas from any point within this state to any point or place without this state. Any person or persons, company, corporation, or voluntary organization now or hereafter incorporated under any law of this or any other state, for the purpose of drilling and mining for petroleum or natural gas, or otherwise acquiring gas or petroleum wells, and the products thereof, and to furnish the same to its patrons, or to convert such product into gas for illuminating purposes or fuel, which shall have entered upon and acquired by deed of conveyance, or appropriated or condemned, any real estate under any law of this state, for the purpose of laying its pipe lines, or for any other purpose, which shall permit any gas to be conveyed or carried through its pipes to any place without this state, or for the purpose of being used without this state, shall forfeit all right, title, and interest in and to all real estate so appropriated, conveyed, or condemned, and the pipes laid thereunder, and the same shall revert to and become the property of the persons or corporations, their heirs, successors, or assigns, who owned the same at the time of such appropriation, conveyance, or condemnation: provided, that the provisions of this act shall not be so construed as to prevent towns or cities divided by any of the boundary lines of this state, and having a majority of the population of such cities or towns residing within this state, from being supplied with natural gas." Elliott's Supp. § 1875. On the 21st day of February, 1889, an act was passed declaring that the word "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 authorizing 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 limits of towns and cities. On the erty. 20th day of the same month the general as

(120 Ind. 575)

STATE ex rel. CORWIN v. INDIANA & O.
OIL, GAS & MINING CO.

(Supreme Court of Indiana. Nov. 6, 1889.)
CONSTITUTIONAL LAW-INTERSTATE COMMERCE.

1. Natural gas, when brought to the surface and placed in pipes for transportation, is an article of commerce.

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Appeal 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 & Ohio Oil, Gas & Min-emergency clause. ing Company forfeited, for offenses against the laws of the state. Judgment for defendant, and plaintiff appeals.

John M. Smith and L. S. Mitchener, Atty. Gen., for appellant. Bell & Morris and John B. Cohrs, for appellee.

The appellee's counsel contend that the act of March 9, 1889, is invalid because it is interstate commerce legislation, and such legislation must be exclusively federal. In order to give any force to this contention, it is 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. Philadelphia Co., 118 Pa. St. 488, 12 Atl.

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