The Northeastern Reporter

$72. In a proceeding to compel the granting of a liquor license, a plea, alleging the adoption of local option in a county under the local option act of 1908 (Acts Sp. Sess. 1908, c. 2), held a plea in bar, and not in abatement.Kunkle v. Coleman (Ind.) 61.

$ 72. A plea in bar in a proceeding to compel the granting of a liquor license, alleging that the election commissioners tabulated the vote, held to sufficiently allege that they "canvassed" the vote under the local option law of 1908 (Acts Sp. Sess. 1908, c. 2).-Kunkle v. Coleman (Ind.) 61.

§ 86. A liquor dealer's bond held to contemplate that the licensee would not sell liquor to intoxicated persons.-United States Fidelity & Guaranty Co. v. State (Ind. App.) 691.

VI. OFFENSES.

Construction of statutes authorizing sale on written prescription, see Statutes, §-179.

§ 131. Criminal intent held not an essential element of the offense of selling intoxicating liquors in less quantity than a quart.-Walters v. State (Ind.) 537.

§ 152. An application not complying with Burns' Ann. St. 1908, § 8352, held no defense to a prosecution of a druggist for selling whisky.-Ryan v. State (Ind.) 340.

§ 152. A sale of whisky by a druggist on an application failing to comply with Burns' Ann. St. 1908, § 8352, in stated particulars, held unlawful.-Ryan v. State (Ind.) 340.

§ 152. Sales of vinous or spirituous liquors by a druggist held unlawful unless in compliance with Burns' Ann. St. 1908, § 8352.-Ryan v. State (Ind.) 340.

$152. It is no defense to a prosecution for selling intoxicants without an application or prescription therefor that the liquor was sold in good faith, and used for medical purposes. -Ryan v. State (Ind.) 340.

$ 168. In the trial of a druggist for unlawfully selling intoxicating liquors, evidence of an unlawful sale made in accused's absence by his clerk was admissible.-Walters v. State (Ind.) 537.

VIII. CRIMINAL PROSECUTIONS. Allegations of fact or conclusions, see Indictment and Information, § 63.

while accused's license was in force, he successfully sued to enjoin the prosecuting attorney from enforcing the local option law against him. -Gaussin v. State (Ind.) 651.

§ 236. Evidence held to sustain a conviction of a druggist for selling intoxicating liquors in a less quantity than one quart at a time.Walters v. State (Ind.) 537.

XI. CIVIL DAMAGE LAWS. $283. Act March 17, 1875 (Laws Sp. Sess. c. 13) § 15, making it a misdemeanor to sell intoxicants to an intoxicated person, held still in force so far as it aids a civil action for damages brought under section 20 thereof (Burns' Ann. St. 1908, § 8355; Burns' Ann. St. 1901, § 7288: Rev. St. 1881, § 5323).-United States Fidelity & Guaranty Co. v. State (Ind. App.) 691.

$286. The sale of liquor to an intoxicated person in a restaurant belonging to the saloon keeper and partitioned off from the saloon proper held illegal, so as to make the dealer's bondsmen liable civilly for resulting damages.-United States Fidelity & Guaranty Co. v. State (Ind. App.) 691.

§ 291. To give a cause of action for damages for loss of support, under act approved March 17, 1875 (Laws Sp. Sess. 1875, c. 13) § 20 (Burns' Ann. St. 1908, § 8355; Burns' Ann. St. 1901, § 7288; Rev. St. 1881, § 5323), caused by the sale of liquor to an intoxicated person, inits use, and causing the loss of plaintiff's means toxication resulting in whole or in part from of support, must be shown.-United States Fidelity & Guaranty Co. v. State (Ind. App.) 691.

INTRUDERS.

On land, see Forcible Entry and Detainer.

INVENTORIES.

In proceedings for dissolution of corporation, see Corporations, § 614.

of goods insured, requirement of insurance pol

icy, see Insurance, § 335.

INVITED ERROR.

See Appeal and Error, § 882.

IRON-SAFE CLAUSE.

Election between acts proved, see Criminal In insurance policy, see Insurance, § 335. Law, § 678.

$200. Requisites of an accusation for an unlawful sale of intoxicating liquors stated. Walters v. State (Ind.) 537.

§ 219. Failure to set out the full Christian name of the buyer did not make an affidavit charging an unlawful sale of intoxicating liquors bad on motion to quash.-Walters v. State (Ind.) 537.

$219. In alleging an unlawful sale of intoxicating liquors, the buyer should be either specifically named or otherwise identified with reasonable certainty.-Walters v. State (Ind.) 537.

§ 221. An allegation in an affidavit for arrest for an unlawful sale of intoxicating liquors held not bad.-Walters v. State (Ind.) 537. $221. In a prosecution under Burns' Ann. St. 1908, § 8351, for illegally selling intoxicants, indictment held to sufficiently allege that accused did not have a license to sell.-Gaussin y. State (Ind.) 651.

§ 226. In a prosecution for violating Burns' Ann. St. 1908, § 8351, by keeping a place where intoxicants were illegally sold, evidence held admissible that after the adoption of local option,

ISSUES.

Identity of issues as affecting conclusiveness of
judgment, see Judgment, § 743.
Instructions ignoring, see Trial, § 253.
Judgment on trial of issues, see Judgment, §§
Presented for review on appeal, see Appeal and
Error, $$ 171–177.

198-263.

Statement of issues by judge to jury, form, req-
uisites, and sufficiency, see Trial, § 233.
Trial by jury of issues in equity, see Equity,
$$ 377-381.

JEOPARDY.

Former jeopardy as bar to prosecution, see
Criminal Law, § 187.

JOINDER.

In error, see Appeal and Error, § 749.
Of causes of action, see Action, & 50.
Of counts in indictment or information, see In-
dictment and Information, § 129.

Of husband and wife in petition for adoption.
see Adoption, § 11.

Of parties in civil actions in general, see Parties, § 30.

JOINT ADVENTURES.

See Partnership.

Joint estates, see Joint Tenancy.
Liability of syndicate subscriber as partner, see
Partnership, § 169.
Pleading in action against agent of syndicate,
see Principal and Agent, § 189.

§ 7. A manager of a syndicate authorized to
purchase a railroad held not to have authority
to pledge the credit of the subscribers to third
parties.-Jones v. Gould (N. Y.) 1071.

JOINT LIABILITIES.

Judgment against one or more parties, see
Judgment, § 239.

Of partnerships, see Partnership, § 169.

JOINT MOTION.

To make complaint more specific, see Pleading,
§ 367.

JOINT OWNERS.

See Joint Tenancy.

JOINT-STOCK COMPANIES.
Limited partnerships, see Partnership, § 376.

JOINT TENANCY.

Partition of joint property, see Partition.

$ 5. If joint owners of personalty remove to
this state with it, their ownership would remain
unchanged, and the death of either of them
would not affect the interest of the survivor.
In re Majot's Estate (N. Y.) 402.

JOINT TORT-FEASORS.

Judgment against one or more parties, see Judg-
ment, § 239.

JOURNALS.

Legislative journals, judicial notice, see Crim-
inal Law, § 304.

See Courts.

JUDGES.

Subject and title of act authorizing interchange
of judges, see Statutes, § 124.

$29. Municipal Court Act, § 13 (Hurd's
Rev. St. 1909, c. 37), authorizing judges of the
municipal court when necessary or convenient
to interchange with judges of other courts, held
not to conflict with section 10, providing qual
fications of the judges of the municipal court.
or section 12, providing for increase by election
in the number of the judges, under certain con-
ditions.-American Badge Co. v. Lena Park
Improvement Ass'n (Ill.) 972.

$ 29. The provision of Municipal Court Act,
§ 13 (Hurd's Rev. St. 1909, c. 37), for inter-
change, when necessary or convenient, of judges
of the municipal court of Chicago with judges
of other courts, held germane to the purpose of
Const. art. 4, § 34, authorizing a law to pro-
vide a complete system of local municipal gov
ernment for the city.-American Badge Co, T.
Lena Park Improvement Ass'n (Ill.) 972.

IV. DISQUALIFICATION TO ACT.
§ 51. Affidavit of disqualification of judge
filed under Rev. St. § 550, is not conclusive, but
the judge is, under such section and section
469, authorized to require additional informa-
tion.-Duncan v. State (Ohio) 481.

JUDGMENT.

As claim provable against bankrupt's estate, see
Bankruptcy, § 319.

Decisions of courts in general, see Courts, $
91-99.

Enforcement by creditors' suit, see Creditors
Suit.

On pleadings, see Pleading, § 345.
Recovery of judgment as prerequisite to cred-
itors' suit, see Creditors' Suit, § 11.
Stipulations as to judgment, matters concluded,
see Stipulations, § 18.

In actions by or against particular classes of
persons.

Mortgagees, see Mortgages, § 199.

In particular civil actions or proceedings.
Condemnation proceedings, see Eminent Do-
main, §§ 241–243.

For divorce, see Divorce, § 162.

On claims against decedent's estate, see Execu
tors and Administrators, § 255.

In criminal prosecutions.

Judicial powers and functions in general, and See Criminal Law, §§ 980-995.
delegation thereof, see Constitutional Law, §§
70-73.

Remarks and conduct on trial, see Trial. § 29.
Subjects and titles of acts relating to judges,
see Statutes, § 124.

Delegation of legislative power to fix term of
office, see Constitutional Law, § 60.

$ 7. Under Acts 1901, p. 140, § 21, amended
by Acts 1907, p. 223, a city council held un-
empowered to fix a judge's term of office.-Peo-
ple v. Board of Election Com'rs of City of East
St. Louis (Ill.) 155.

$ 7. Municipal Court Act (Acts 1905, p. 162)
§ 9, relative to the terms of judges, held not un-
constitutional. Const. art. 6. § 32; article 4, 8
34.-People v. Olson (Ill.) 157.

III. RIGHTS, POWERS, DUTIES, AND
LIABILITIES.

Application in vacation for certificates of im-
portance, see Courts, § 219.

Special laws relating to interchange of judges
of municipal and other courts, see Statutes, §
98.

Review.

See Appeal and Error; Certiorari; Criminal
Law, §§ 1036-1179.

Judgment on appeal or writ of error, see Ap-
peal and Error, §§ 1107-1212.

I. NATURE AND ESSENTIALS IN
GENERAL.
Vacation of judgment as abrogation of waiver
of jury trial, see Jury, § 28.

§ 18. Judgment in favor of a defendant who
has not joined issue on the complaint is im-
proper.-Becovitz v. Sapperstein (Ind. App.
551.

IV. BY DEFAULT.

(A) Requisites and Validity.

§ 133. A valid judgment by default, render
ed as required by Rev. St. § 5133, held not to
be vacated or suspended for failure to observe
certain requirements of a court rule.-Van In-
gen v. Berger (Ohio) 433.

VI. ON TRIAL OF ISSUES.
Judgment of appellate court, see Appeal and
Error, § 1184.

the state's attorney, alleging facts claimed to
make such appointment proper, the court had
jurisdiction to make the appointment, and hence
its judgment was not void and subject to col-
lateral attack.-Lavin v. Board of Com'rs of
Cook County (Ill.) 291.

$504. A judgment is not open to collateral
attack where the defect in the proceedings in
Northern Indiana Ry. Co. v. Lincoln Nat.
which it was rendered was a mere irregularity.
Bank (Ind. App.) 384.

XIII. MERGER AND BAR OF CAUSES
OF ACTION AND DEFENSES.
Discharge of liability of agent by recovery
against principal, see Principal and Agent, §
184.

(A) Judgments Operative as Bar.
§ 551. A decree dismissing a bill by a de-
fendant in ejectment to enjoin the prosecution
of the suit held not to debar defendant from
presenting any legal defense to the action of
ejectment.-Linnertz v. Dorway (Ill.) 938.

the Bar.

§ 248. The statement of claim and affidavit
in support thereof held to conform with and
authorize the judgment against all the defend-
ants, though the affidavit in a single instance
uses the word "defendant" in the singular. mortgage held not competent evidence to sus-
§ 632. The record in an action to cancel a
American Badge Co. v. Lena Park Improve-tain an information to disbar the defendant
ment Ass'n (III.) 972.

$252. Part of the judgment in an action to
quiet title held outside the issues and surplus-
age.-Baxter v. Baxter (Ind. App.) 881, 1039.
$256. Findings in an action by the vendor
under a bond for deed to recover defaulted pay-
ments held to sustain the judgment.-Ginther
v. Rochester Improvement Co. (Ind. App.) 698.
(D) Arrest of Judgment.

$263. A motion in arrest for an insufficient
complaint will not be sustained where the com-
plaint discloses facts sufficient to bar another
action, and its defects might have been supplied
by proof.-Ginther v. Rochester Improvement
Co. (Ind. App.) 698.

§ 263. In an action by the vendor under a
bond for a deed to recover defaulted payments,
an allegation in a complaint and an exhibit at-
tached thereto held to sustain a judgment for
the vendor as against a motion in arrest.-Gin-
ther v. Rochester Improvement Co. (Ind. App.)
698.

VII. ENTRY, RECORD, AND DOCK-
ETING.

Confirmation of special assessment, see Munic-
ipal Corporations, § 507.
Judgment in condemnation proceedings, see Em-
inent Domain, § 241.

Judgment in criminal prosecution, see Criminal
Law, § 995.

Judgment of appellate court, see Appeal and
Error, § 1184.

IX. OPENING OR VACATING.

in that action; the relator in disbarment pro-
ceedings not having been a party to the action,
and hence not entitled to rely on the record as
res judicata.-People v. Amos (III.) 857.

CATION.

XIV. CONCLUSIVENESS OF ADJUDI-
Decision of appellate court as law of the case
in lower court, see Appeal and Error, § 1195.
Former decision in same case as law of the
case, see Appeal and Error, § 1097.
Judgment in condemnation proceedings, see Em-
inent Domain, § 243.
Judgment in probate proceedings, see Wills,
§ 428.

Judgment on accounting by executor or admin-
istrator, see Executors and Administrators,
§ 513.

(A) Judgments Conclusive in General.
§ 634. The doctrine of res judicata stated.-
People v. Amos (Ill.) 857.

§ 640. Complainant having complied with a
probate order requiring her to turn over to her
daughter's administrator certain personal prop-
erty, without appealing therefrom, held estopped
thereafter to claim such property as her own.-
Mayer v. McCracken (Ill.) 355.

(B) Persons Concluded.

§ 677. One not a party to a litigation, but
for whose benefit it is brought, is concluded by
the judgment.-Gallo v. Brooklyn Savings Bank
(N. Y.) 633.

§ 678. Where testator's daughter instituted
proceedings for the construction of the will and

Filing petition to open decree as appearance, obtained a decree, that she took a base fee in
see Appearance, § 8.

§ 397. On motion to vacate judgment for
irregularities, the judgment on a proper show-
ing should be suspended until trial on the
merits, and it is error to enter final judg-
ment.-Lee v. Benedict (Ohio) 492.

XI. COLLATERAL ATTACK.
On appointment of trustee, see Trusts, § 169.
(B) Grounds.

$504. Court held to act judicially in de-
termining the necessity of appointing a special
state's attorney under Hurd's Rev. St. 1909,
c. 14. § 6. so that on the filing of a petition by

certain realty, such decree, unappealed from,
was conclusive on those claiming the property
under her.-Mayer v. McCracken (Ill.) 355.

§ 743. A decision construing a devise, ren-
dered in a suit for the construction thereof,
held conclusive in a subsequent suit.-Wallace
v. Noland (Ill.) 956.

XV. LIEN.

Judgment admeasuring dower, see Dower, § 109.

XVII. FOREIGN JUDGMENTS.

§ 822. A foreign judgment on a certificate
issued by a domestic fraternal beneficiary cor-

Custody, conduct and deliberations, see Crim-
inal Law, § 865; Trial, § 312.

In condemnation proceedings to assess compen-
sation, see Eminent Domain, §§ 222, 223.
Instructions, see Criminal Law, §§ 761, 776-
815; Trial, §§ 184-282, 312.

Presumptions as to judicial proceedings in gen- Questions for jury in civil actions, see Trial,
eral, see Evidence, § 82.

JUDICIAL DISCRETION.

Amendment of pleadings, see Pleading, § 236.
Costs in civil actions in general, see Costs, § 13.
Examination of witnesses, see Witnesses, § 226.
Order of proof, see Criminal Law. § 681.
Review of discretion in civil actions, see Ap-
peal and Error, §§ 959-978.

JUDICIAL LEGISLATION.

Encroachment by courts on legislative functions,
see Constitutional Law, § 70.

JUDICIAL NOTICE.

In civil actions, see Evidence, §§ 5-25.

§§ 139-142.

Questions for jury in criminal prosecutions, see
Criminal Law, §§ 747-761.

Taking case or question from jury at trial, see
Criminal Law, §§ 747-761; Trial, §§ 139–142.
Trial by jury of issues in equity, see Equity,
$$ 377-381.

Verdict in civil actions, see Trial, §§ 330-359.

II. RIGHT TO TRIAL BY JURY.
Demand for jury in municipal court, see Courts,
§ 189.

Proceedings for registration of land titles, see
Records. $ 9.

Tender of jury fees in municipal court, see
Courts, § 189.

12. Where the title to real property is put
in issue, a jury trial is not a privilege to be

In criminal prosecutions, see Criminal Law, § granted in the sound discretion of the court, as
304.

Necessity that jurisdiction appear of record, see
Appeal and Error, § 493.

Of courts in general, see Courts.

in probate appeals or issues in equity, but is
a right guaranteed by the Constitution.-Weeks
v. Brooks (Mass.) 45.

§ 14. Trial by jury may be demanded in an
action to recover possession of land brought un-
der Burns' Ann. St. 1908, § 1096.-Harmon v.
Pohle (Ind. App.) 119.

§ 14. Actions which are merely brought to
quiet title are triable by a jury.-Baxter v.
Baxter (Ind. App.) 881, 1039.

§ 14. Cause of action alleged in the com-
plaint held one to quiet title, and not to re-
scind a deed, so that the action was triable by
a jury. Baxter v. Baxter (Ind. App.) 881, 1039.

§ 19. A right to contest a local option elec
tion does not give a right to a jury trial, un-
less conferred by statute.-Gordon v. Corning
(Ind.) 59.

§ 28. Under power of attorney to confess
judgment and to waive jury trial, the waiver
was abrogated by vacation of the judgment.-
Morrison Hotel & Restaurant Co. v. Kirsner
(III.) 285.

§ 31. Rule as to constitutional right to jury
trial stated.-Morrison Hotel & Restaurant Co.
v. Kirsner (Ill.) 285.

§ 31. Municipal court act provision (Hurd's
Rev. St. 1909, c. 37, § 319) requiring written
Special or local laws relating to jurisdiction of demand for jury trial and payment of jury
courts, see Statutes, § 98.

fees, held subject to liberal construction.-Mor

Jurisdiction of particular actions or proceed-rison Hotel & Restaurant Co. v. Kirsner (Ill.)

ings.

See Discovery, § 52; Garnishment, § 80.
Criminal prosecutions, see Criminal Law, § 93.
Criminal prosecutions against corporations, see
Corporations, § 530.

Disbarment proceedings, see Attorney and Cli-
ent. § 36.

285.

V. COMPETENCY OF JURORS, CHAL- | Right of action by mortgagee against lessee of
LENGES, AND OBJECTIONS.

§ 117. An objection that the jury was not
regularly drawn was waived where it was not
raised until after conviction.-l'eople v. Con-
ners (Ill.) 567.

JUSTICES OF THE PEACE.

Proceedings on summary trial of criminal of-
fenses or misdemeanors, see Criminal Law,
§ 249.

JUSTIFICATION.

For assault on passenger, see Carriers, § 283.

KNOWLEDGE.

Of agent imputed to principal, see Principal
and Agent, § 177.

Of defect or danger as affecting assumption of
risk by servant, see Master and Servant, &

217.

Of defect or danger as affecting duty of master
to warn or instruct servant, see Master and
Servant, § 154.

Of defect or danger in machinery and appli-
ances as affecting liability of master for in-
juries to servant, see Master and Servant, §
125.
Of existence of custom or usage by parties to
contract, see Customs and Usages, § 12.
Of falsity of representations, see Fraud, $ 13.
Opinion evidence founded on special knowledge
as to subject-matter, see Evidence, § 474.
Affecting or element of particular acts or trans-
actions.

See Customs and Usages, § 21; Fraud, § 13;
Fraudulent Conveyances, § 162.

Liability for injuries to servant, see Master and
Servant, § 150.

Purchase of land, see Vendor and Purchaser,
$ 229.

Transfer of bill or note, see Bills and Notes, §§
340-343.

LABELS.

Ordinance regulating sale of bread as depriva-
tion of property without due process of law,
see Constitutional Law, § 296; as infringe-
ment of right of property, see Constitutional
Law, $ 87.

LABOR.

See Master and Servant; Work and Labor.
Claims against estates of decedents for services,
see Executors and Administrators, § 206.
Liens on real property for work and materials,
see Mechanics' Liens.

LACHES.

Affecting particular rights, remedies, or pro-
ceedings.

See Mandamus, § 143.

Avoidance of conveyance of homestead by wife
to husband, see Homestead, § 131.

For new trial, see Criminal Law, § 951.

In equity, see Equity, $$ 67-80.

mortgagor for injuries to premises, see Mort-
gages, § 217.

II. LEASES AND AGREEMENTS IN
GENERAL.

Fraud affecting oil lease, see Mines and Min-
erals, § 58.

III. LANDLORD'S TITLE AND RE-

VERSION.

Action by mortgagee against lessee of mortgagor
for injuries to premises, see Mortgages, § 217.
IV. TERMS FOR YEARS.

(D) Termination.

§ 95. Lease, with agreement that it could be
terminated on 30 days' notice and payment of
$400, if after 5 years the lessor desired to sell,
held terminated without a binding agreement to
convey, on the lessor's desire to sell, notice, and
tender.-Gunsenhiser v. Binder (Mass.) 705.

§ 103. A lessor desiring to avail himself of
a breach of a condition subsequent must re-
enter. Harmon v. Pohle (Ind. App.) 119.

§ 108. In an action to forfeit a lease for
nonpayment of rent, a paragraph of defendant's
answer held to state a complete defense.-Heitz
v. Knox County Home Telephone Co. (Ind.
App.) 1040.

under an oral agreement collateral to the lease
§ 108. Day fixed for the payment of rent
held not of the essence of the contract, and
hence nonpayment of the rent on that day was
not ground for forfeiture.-Heitz v. Knox Coun-
ty Home Telephone Co. (Ind. App.) 1040.

VII. PREMISES, AND ENJOYMENT
AND USE THEREOF.

(A) Description, Extent, and Condition.
§ 125. A landlord's representation in leas-
ing held a mere expression of opinion or rec-
ommendation, and not a warranty of safe
condition.-Walsh v. Schmidt (Mass.) 496.

§ 125. A landlord held not impliedly bound
to keep premises in a safe condition.-Walsh
v. Schmidt (Mass.) 496.

(B) Possession, Enjoyment, and Use.
§ 136. A farm lease held to require the les-
sees to clear 15 acres each year.-Harmon v.
Pohle (Ind. App.) 119.

(D) Repairs, Insurance, and Improve-

ments.

150. A landlord of a lodging house, who
retains possession and control of the hallways
for use in common by tenants, must maintain
them in the condition they were in at the time
of the letting to a tenant.-Faxon v. Butler
(Mass.) 707.

(E) Injuries from Dangerous or Defective
Condition.

§ 164. A tenant of a room in a lodging house
held to take the premises in the condition she
finds them, so far as the arrangement of hall-
ways used in common by the tenants are ob-
vious.-Faxon v. Butler (Mass.) 707.

§ 169. Evidence, in an action against a

To establish and enforce trust, see Trusts, 8 landlord for injury to a tenant's wife, caus-

365.

LADING.

Bill of, see Carriers, § 57.

LANDLORD AND TENANT.

Lease by mortgagor as affecting rights of mort-
gagee, see Mortgages, § 272.

Oil lease, see Mines and Minerals, § 58.

ed by defective flooring, held insufficient to
show that the landlord expressly warranted
the premises were safe.-Walsh v. Schmidt
(Mass.) 496.

§ 169. Whether a landlord of a lodging house,
who retained control of the hallways for use in
common by the tenants, was guilty of negli-
gence in failing to light a hallway according
to his custom, held for the jury.-Faxon v. But-
ler (Mass.) 707.

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The Northeastern Reporter, Volum 92