A reversal is sought because the court, in an instruction to the jury, after referring to the issues, stated that, "if the plaintiff has so proved the material allegations of her complaint, then she is entitled to recover such damages as will compensate her for the injuries." The objection urged to this instruction is that it ignores the element of contributory negligence. The jury was charged with great distinctness that contributory negligence would defeat a recovery, and that, while the burden of proving such negligence was on the defendant, yet that such defense might be made out by the evidence of the plaintiff and her witnesses with the same effect as if made by the witnesses of the defendant. Five instructions were given which referred to the subject of contributory negligence, and four were given relative to the subject of ordinary care being exercised by the plaintiff. The sixth, seventh, and ninth instructions given by the court, which were framed on lines not essentially different from the instruction complained of, were qualified by the statement that the plaintiff, upon proving the facts referred to in such instructions, was entitled to recover, unless the defendant had proved by a preponderance of evidence some act of negligence on her part contributing to her injuries. Upon a review of the instructions on the subject of contributory negligence, we are impressed with the view that the jury was overinstructed upon that subject, and it is our conclusion that the jury could not have been misled by said instruction. It was really correct, as far as it went, as it really but amounted to a statement that "then" that is, upon proving the facts alleged in her complaint, she was entitled to a recovery as the evidence then stood. The qualifying clause ought in strictness to have been added immediately thereafter, so as to guard against the possibility that the jury would misapprehend the effect of the instruction; but, presuming that the jury exercised common sense, we cannot indulge in the supposition that the jurors were not mindful of the abundant instructions which they received on the subject of contributory negligence, or that they failed to perceive that in three other instances the qualifying clause was added. A cause ought not to be reversed merely because an instruction is obnoxious to verbal criticism. The test question in every case is: Was the jury misled? Cleveland, etc., R. Co. v. Miller (Ind. Sup.) 74 N. E. 509. In the circumstances of this case, we are of opinion that the giving of said instruction did not constitute error.

Negligence and contributory negligence, under a particular state of facts, may be a question for the courts, and, as an abstract proposition, it cannot be affirmed that, because' the court instructs on that subject, its action is erroneous. Appellant's counsel have failed to point out, either in their statement of points and authorities or in their argument, wherein the court erred in instructing upon

these subjects. It does not necessarily follow that, by the omission of some fact in an instruction involving a hypothesis relative to negligence, the instruction becomes misleading. Wherein the jury might have been misled in this particular has not been indicated. Appellant has no cause of complaint that the court instructed that, if the plaintiff was acting in a careful and prudent manner, she was not guilty of contributory negligence. Such an instruction is correct as far as it goes. One of the instructions, concerning which no specific objection has been pointed out, might seem, if standing alone, to overlook the subject of assumed risk (a different thing from contributory negligence, see Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742): but, bearing in mind that the only testimony upon the subject of the appearances, as they presented themselves to appellee, fell from her own lips, and that her testimony strongly tended to negative the idea that she voluntarily cast herself upon a known and appreciated danger, there appears to be no substantial reason for supposing that the instruction was prejudicial.

The first part of appellant's instruction No. 12, which was refused, correctly stated that in certain circumstances the plaintiff had a right to remain on the car, but as the latter part of the instruction, which deals with the subject of assumed risk, was not limited to the facts stated in the first part of the instruction, we are of opinion that it was properly refused. Appellant's instruction No. 13 was not proper, as appellee had a right to assume, in the absence of notice to the contrary, that appellant had stopped its car at a place where, by the exercise of due care, she might alight in safety. Judgment affirmed.

(167 Ind. 96)

STATE V. THOMPSON. (No. 20.729.) (Supreme Court of Indiana. June 28, 1906.) 1. CRIMINAL LAW-APPEAL-BILL OF EXCEPTIONS.

Act March 10, 1905 (Acts 1905, p. 648, c. 169), in relation to public offenses, and providing that, in case an original bill of exceptions be incorporated into the transcript on appeal, it shall constitute a part of such transcript as if copied therein by the clerk, whether the original bill or copy was specified in the præcipe or otherwise directed to be incorporated into the transcript, has no application to a prosecution commenced prior to the taking effect of the statute, and in such a prosecution, where the clerk certifies up the original bill of exceptions, instead of a transcript, as directed, the original bill cannot be considered as a part of the record.

2. SAME-STATUTORY PROVISIONS.

Acts 1903, p. 40, c. 193, being an act concerning civil procedure, has no application to appeals in criminal cases.

Appeal from Circuit Court, Pike County; E. A. Ely, Judge.

Prosecution for perjury against Charles B.

Thompson. From a judgment on a verdict of acquittal, the state appeals. Appeal not sustained.

C. W. Miller, C. C. Hadley, W. C. Geake, L. G. Rothschild, and Bomar Traylor, for appellant. J. W. Wilson, Dillon & Ely, and S. G. Davenport, for appellee.

JORDAN, C. J. On December 17, 1904, an indictment against appellee, Charles B. Thompson, was returned into the Pike circuit court by the proper grand jury, charging that said Thompson, on December 2, 1904, at the county of Pike, state of Indiana, committed the crime of perjury. To this charge the accused pleaded not guilty, and on a trial by jury a verdict of acquittal was returned, and judgment was rendered thereon by the court that he be discharged and go hence without day. From this judgment the state, by its prosecuting attorney, has appealed to this court under sections 1915 and 1955, Burns' Ann. St. 1901.

The rulings upon which the assignment of errors are predicated relate to the exclusion of certain evidence offered by the state. It is claimed by its counsel that this evidence, together with the rulings of the court thereon and the exceptions reserved thereto, is exhibited by the original bill of exceptions, which has been certified up by the clerk of the lower court, instead of a transcript thereof. It appears that the prosecuting attorney made and filed with the clerk below a præcipe for a transcript. This præcipe is attached to and made a part of the clerk's certificate to the record herein. By this præcipe the clerk was requested and directed to prepare and "certify a full, true, and complete transcript of the proceedings, papers on file, and the judgment" in the cause, "to be used on appeal to the Supreme Court." The præcipe in no manner directed or requested the clerk to certify the original bill of exceptions. We are met with the contention of counsel for appellee that because the clerk has certified up the original bill of exceptions, instead of a transcript thereof as directed, said original bill cannot be considered as a part of the record in this appeal. We have repeatedly held that in appeals to this court, where the præcipe made by the party taking the appeal calls for a transcript of the proceedings, or record, etc., and that thereupon the clerk certifies up the original bill of exceptions, instead of the transcript as requested, that such original bill does not, under the circumstances, become a part of the record and therefore cannot be considered. Boos v. Lang, 163 Ind. 445, 71 N. E. 120, and the numerous cases cited on page 448 of 163 Ind., and page 121 of 71 N. E. The provisions of section 7 of an act concerning civil procedure, approved March 9, 1903 (Acts 1903, p. 340, c. 193), are not available to authorize us in this appeal to consider or regard the original bill of exceptions

as a part of the record, because the provisions of that statute are confined to procedure in civil causes and have no applica. tion to a criminal case. It is also true that section 289 of an act of the Legislature "concerning public offenses," approved March 10, 1905 (Acts 1905, p. 648, c. 169), provides that "in case an original bill of exceptions shall be incorporated into the transcript of the record of any case on appeal, such original bill shall in every case constitute a part of such transcript as if copied therein by the clerk, whether such original bill, or copy thereof, be specified in the præcipe or otherwise directed to be incorporated into such transcript." This provision, however, does not apply to or control in criminal prosecutions commenced, as in this case, prior to the taking effect of said act of 1905. Miller v. State (at last term), 76 N. E. 245; Stieler v. State (at this term), 77 N. E. 1083.

For the reasons stated we hold that the original bill of exceptions as certified in this appeal cannot be considered or regarded as part of the record. The evidence in question and the rulings of the trial court in excluding it, and the exceptions reserved, are, therefore, not presented by the record, and the appeal cannot be considered on its merits. Appeal not sustained.

(Supreme Court of Indiana. June 28, 1906.) 1. APPEAL-BRIEFS-REQUISITES.

Though, on appeal by defendant, the written instrument, which was sued on and made a part of the complaint as required by Burns' Ann. St. 1901, § 365, was not set out in defendant's brief to the extent required by the rules of court, defendant having made a goodfaith effort to comply with the rules, and the parts of the contract which he claimed to show the insufficiency of the complaint being stated in the brief, the failure to comply strictly with the rules did not amount to a waiver of any error in the ruling on the demurrer to the complaint.

2. SALES-WRITTEN CONTRACT-SUFFICIENCY. A writing requesting defendant to ship plaintiff a described engine, bearing a notice to the effect that it was subject to the acceptance and approval of defendant at its home office, and signed by a certain person as agent for defendant, but not signed by plaintiff, did not amount to a contract of sale, even though it had been accepted and ratified by defendant. 3. PLEADING-PLEADING INSTRUMENTS-VARIANCE BETWEEN ALLEGATIONS AND EXHIBIT. Where the allegations of a complaint in regard to the instrument sued on and made a part of the complaint vary from the provisions of the instrument, it controls on demurrer, and the allegations will be disregarded.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 943.]

Appeal from Circuit Court, Huntington County; Jas. C. Branyan, Judge.

Action by Henry R. Wagner against the Huber Manufacturing Company. From a judgment in favor of plaintiff, defendant appealed. Transferred from the Appellate

Court under section 1337u, Burns' Ann. St. 1901; Acts 1901, p. 590. Reversed, with instructions to sustain a demurrer to the complaint.

Lesh & Lesh, for appellant. F. M. Bowers and Milo Feightner, for appellee.

MONKS, J. Appellee brought this action to recover damages for breach of an alleged written contract for the purchase of a gasoline engine from the appellant. Appellant's demurrer for want of facts to the complaint was overruled. A jury trial resulted in a verdict and judgment in favor of appellee.

The action of the court in overruling the demurrer to the complaint is called in question by the assignment of errors. Appellee claims that appellant has waived said alleged error by failing to set out in its brief a copy or concise statement of the written instrument sued upon, which was made a part of the complaint as required by section 365, Burns' Ann. St. 1901. The written instrument is not set out to the extent required by the rules of court; but, as appellant has made a good-faith effort to comply with the rules, and the parts which appellant claims show the insufficiency of the complaint are stated in the brief, the defects suggested will be disregarded.

It was alleged in the complaint that appellant, by its authorized general agent, C. S. Cooper, agreed to sell and deliver to appellee one 14 horse power gasoline engine at Huntington or Warren, in consideration of which appellee agreed to execute and deliver to appellant his promissory notes for $250, said notes to be secured by chattel mortgage, and to deliver to appellant one steam engine; that appellant accepted and ratified said agreement, a copy of which is filed with and made a part of the complaint. The writing sued upon purports to be and is a mere order or request to appellant for a "14 horse power gasoline engine." Near the bottom of the order, under the title "Notice," is the following: "This order is subject to the acceptance and approval of said company at its home office, and when so approved and accepted is a binding contract, which no person has authority to modify or vary in any respect, or to waive any of its conditions, except in writing approved by the management at the home office, and any attempt to otherwise change any of the terms or waive any of the conditions of the warranty will not be binding on the company." The only signature to the order is, "C. S. Cooper, Agt. The Huber Co." According to its terms said order was not a contract, but a mere request to appellant, which, according to its terms, could only become a contract when accepted by the appellant at the home office. Said order was not signed by appellee. It was not his order, but, as signed, was the order of "C. S. Cooper, Agt. The Huber Co." Said order,

even if accepted and ratified by appellant as alleged in the complaint, would not be a contract with appellee, as alleged in the complaint.

It is evident that the allegations of the complaint in regard to the instrument sued upon vary from the provisions of said instrument. In such case the exhibit controls, and such allegations will be disregarded. Harrison Bldg., etc., Co. v. Lackey, 149 Ind. 10, 14, 48 N. E. 254, and cases cited. Disregarding the allegations of the complaint which vary from the provisions of the instrument sued upon, it is evident that the court erred in overruling appellant's demurrer thereto.

Other questions are argued in the briefs, but the conclusion we have reached renders their determination unnecessary.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

(167 Ind. 121) · RYAN v. RHODES et al. (No. 20,645.) (Supreme Court of Indiana. June 29, 1906.) HABEAS CORPUS-EXISTENCE OF OTHER REMEDY.

The fact that the husband of a female infant was not a party to proceedings wherein she was committed to the industrial school for girls, under Burns' Ann. St. 1901, § 8273, did not enable the husband to maintain habeas corpus on the ground that the judgment was

erroneous.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 25.]

On rehearing. Petition overruled.
For former opinion, see 76 N. E. 249.

A. F. Knotts, J. W. Noel, and F. M. Conroy, for appellant. C. W. Miller, C. C. Hodley, W. C. Geake, and L. G. Rothschild, for appellee.

JORDAN, C. J. Appellant petitions for a rehearing in this cause, and his learned counsel has from his standpoint presented an able and extensive argument in support of the petition. The argument is advanced that the judgment of the Lake superior court affected the personal and sacred domestic rights of appellant without his being a party to the proceedings in which the judgment was rendered; that for this reason he had no remedy by appeal, and the only one open to him now for asserting and enforcing the legal rights which he claims in securing the liberation of his wife from the institution to which, under the judgment, she was committed, is the remedy which he now herein invokes. But under the statute involved in the action instituted in the Lake superior court appellant was neither a necessary nor proper party. It might with equal force be argued that, had his infant wife been charged with and convicted in a court of competent jurisdiction of having violated a penal law of this state, and as a punishment for such

violation, committed to prison, appellant, by reason of the fact that he was not a party in the criminal prosecution, was entitled to the right to secure her release by writ of habeas corpus. He certainly is in no better position to avail himself of the remedy which he seeks herein under the facts than he would be in the case which we have supposed. In either his right to secure her release by writ of habeas corpus must rest on the fact that there was an absence or lack of jurisdiction on the part of the court over the subject-matter, and not the fact merely that the court erred in construing the statute under which the proceedings, or action, were had, and that its judgment was therefore wrong. When the father of appellant's minor wife presented his position to the Lake superior court, charging therein that his said daughter was incorrigible, etc., the jurisdiction of that court over the subject-matter was thereby invoked. The statute under which the proceedings in question were had invested that court with complete jurisdiction over the subjectmatter, and under the complaint filed the court was, in effect at least, requested to determine or decide as to its power under the facts to commit the incorrigible infant to the care and custody of the institution in question, as provided by the statute. As to whether the law was intended to apply alone to unmarried females under the age of 15 years, or as to whether it embraced all within the age mentioned, whether married or unmarried, was a matter for the determination of the court in placing an interpretation upon the statute. That issue or question was tendered or presented by the complaint, and under the judgment of the court it, if not expressly, was at least impliedly, settled or determined aversly to appellant's contention. Possibly the court may not have been apprised of the fact that the defendant was married. Nothing to the contrary appearing, it may have assumed that she was not, as she had not attained to the age fixed by the statute for females to enter into the married relation. But, as originally asserted, the question as to whether a married infant under the age of 15 years came within the meaning of the statute, was impliedly at least tendered, or presented, by the proceedings. The rule is well settled, since the decision of this court in Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251, that a judgment in an action or proceeding determines or settles all material issues involved between the parties to the action and all matters which might have been properly litigated and settled within the issues tendered or made by the pleading, and to this extent the judgment is not subject to a collateral attack. 1 Van Fleet's Former Adjudication, p. 2; Faught v. Faught, 98 Ind. 470. In addition to the authorities cited in the original opinion, see Stoy v. Indiana Hydraulic Power Co. (at last term) 76 N. E. 1057, and authorities there cited; 1 Elliott, General Practice, § 246.

We have again given this case a careful consideration, and are fully satisfied with the conclusions reached at the former hearing. Petition for rehearing overruled.

(167 Ind. 126)

HAAG v. DETER. (No. 20,879.) (Supreme Court of Indiana. June 29, 1906.) APPEAL-DISMISSAL-DEFECT IN ASSIGNMENT

OF ERRORS.

An appeal will be dismissed, where appellant does not comply with rule 6 of the Supreme Court, requiring the assignments of error to contain the full names of all the parties.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2992.]

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Melissa Deter against Henry M. Haag and another. From a judgment in favor of plaintiff, defendant Haag appeals. Transferred from Appellate Court, under Burns' Ann. St. § 1337u. Dismissed.

McCracken & Eikenbary, for appellant. Reasoner & Ward, for appellee.

PER CURIAM. In the court below appellee recovered a joint judgment against appellant and one Enyart, and from said judgment appellant seeks to prosecute a vacation appeal. Notice has been served on Enyart, but he has not been named as a party in the assignment of errors. Appellee makes this point, and insists on a dismissal of the appeal.

Rule 6 of this court requires that "the assignment of errors shall contain the full names of all the parties," and under the settled practice this appeal must be dismissed. Elliott, Appellate Procedure, 323; Ewbanks' Manual, § 126. It is so ordered.

(168 Ind. 169)

STIMSON v. ROUNTREE et al. (No. 20,791.)1 (Supreme Court of Indiana. June 29, 1906.) WILLS-CONSTRUCTION-ESTATE DEVISED.

A will of testatrix recited, "I give and bequeath" to a niece $3,000, to be held by the executor in trust for the niece, and declared, "It being my will * * that said sum shall be the absolute property" of the niece. The will then contained provisions for a gift over on the death of the niece. Held, that the gift over was void, and the gift to the niece was absolute.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 1387-1392.]

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Robert B. Stimson, administrator of Lucy Stimson, deceased, against Charles Rountree, executor of Florence B. Rountree, deceased, and others. From a judgment for defendants on sustaining a demurrer to the complaint, plaintiff appeals. Cause transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337u. Reversed, with directions.

1 Rehearing denied, 80 N. E. 149.

R. B. Stimson and Crane & McCabe, for appellant. Whittington & Whittington and R. H. Williams, for appellees.

MONTGOMERY, J. This action was brought by appellant as administrator of the estate of Lucy Stimson, deceased, to obtain a construction of the will of Florence B. Rountree, for an accounting by her executor, and to require payment of a legacy. Charles Rountree, in proper person and as executor, filed separate demurrers to the complaint which were sustained, and appellant electing to stand upon such complaint. Judgment was rendered against him for costs.

It is charged that the court erred in sustaining these demurrers to the complaint. Florence B. Rountree died February 12, 1902, and at the time of her death owned land of the value of $12,000, and personal property of the value of $100. Item 1 of her will bequeaths $500 out of her estate to Mary Stimson. Item 2 reads as follows: "I give and devise to my niece, Lucy Stimson, the sum of three thousand dollars out of my estate; said sum to be held by my executor hereinafter named, in trust for said Lucy Stimson, who is an invalid, and likely to remain so during her life, and in consequence thereof likely to need portions of the principal of said sum from time to time; it being my desire that in case she needs any portion of said principal sum from time to time, it be furnished to her as the need therefor may arise. Said sum or the portion thereof remaining, to be loaned by my said executor with safe and sufficient security, and the income therefrom, as well as portions of the principal thereof, to be paid to my said niece as her comfort and welfare may require from time to time. It being my will, however, that said sum of three thousand dollars shall be the absolute property of my said niece, Lucy Stimson, the same being thus placed in trust for her in order that it may thereby be the more certainly applied to her needs from time to time as above provided: In case, however, she does not survive my husband, Charles Rountree, and my niece, Mary Stimson her sister, named in item 1 of this will, then upon her (the said Lucy's) death, said sum or the portion thereof remaining, shall be divided equally between my said husband, Charles Rountree, and my said niece, Mary Stimson; and if at the time of the death of the said Lucy, my said husband, Charles Rountree, shall not then be living, in that case, the half of said sum he would have taken had he then been living, shall go to my sister, Edna B. Stimson, and if neither my said sister nor my said husband be living at the time of the death of said Lucy Stimson, then in that case, the said Mary Stimson shall take the whole of what is remaining of said sum mentioned in this

item." Item 3 gives the residue of the property "not disposed of in items 1 and 2" to Charles Rountree. Item 4 names Charles Rountree as executor. All the parties named in the will were living at the time of the death of the testatrix, but Lucy Stimson died April 5, 1903.

The precise question for decision is whether Lucy Stimson took such an estate under the will as upon her death passed to her personal representative. The primary object in construing a will is to ascertain and give effect to, the intention of the testator. This intention is determined by the application of legal rules and principles, and must be expressed in conformity to such rules, and to the laws by which rights of property are established and made secure. The intention of the testator when ascertained will be given the fullest effect possible, but if such intention, real or apparent, is found to be in conflict with any well-established rule of law, it cannot prevail. Teal v. Richardson, 160 Ind. 119, 66 N. E. 435; Mulvane v. Rude, 146 Ind. 476, 45 N. E. 659; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623; Corey v. Springer, 138 Ind. 507, 37 N. E. 322; Ross v. Ross, 135 Ind. 367, 35 N. E. 9; O'Boyle v. Thomas, 116 Ind. 243, 19 N. E. 112; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425; Bailey v. Sanger, 108 Ind. 264, 9 N. E. 159; Ridgeway v. Lanphear, 99 Ind. 251. Appellee's insistence is that the will properly construed gives an equitable estate for life to Lucy Stimson, with such legal title in the executor as will enable him to carry out the trust, with remainder over to Charles Rountree and Mary Stimson. Appellant's contention is that the will bestowed upon Lucy Stimson $3,000 absolutely, which upon her death passed to her personal representative. The disposing words of the will are, "I give and devise to my niece" the sum of $3,000 out of my estate. The duration of the estate thus given is not expressly limited. It has been frequently declared to be the law that, when an interest or estate is given in one clause of a will in clear terms. such interest or estate cannot be taken away or cut down by subsequent words that are not equally clear and decisive. Langman v. Marbe, 156 Ind. 330, 58 N. E. 191; Lumpkin v. Rodgers, 155 Ind. 285, 58 N. E. 72; Rusk v. Zuck, 147 Ind. 388, 45 N. E. 691, 46 N. E. 674; Mulvane v. Rude, 146 Ind. 476, 481, 45 N. E. 659; Rodgers v. Winklespleck, 143 Ind. 373, 374, 42 N. E. 746; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623; Mitchell v. Mitchell, 143 Ind. 113, 116, 42 N. E. 465; Ross v. Ross, 135 Ind. 367, 35 N. E. 9; O'Boyle v. Thomas, 116 Ind. 243, 19 N. E. 112; Allen v. Craft, 109 Ind. 476, 9 N. E. 919, 58 Am. Rep. 425; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467; Bailey v. Sanger, 108 Ind. 265, 9 N. E. 159.

There is, and can be, no controversy, that these words unqualified would carry an