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the notice at that time was the performance of a purely public duty resting upon the county clerk, which had before that time been neglected by him. Under the law their successors are to be elected at the November election in 1905. The neglect of the clerk would not operate to create a new term or extend the former one. The term of office of Henry M. Shepard expired on the first Monday of December, 1901, when by the law a new term began, and the county clerk in like manner neglected the performance of his duty to include in the notice of the election to be held in November, 1901, the election of his suc

cessor.

Our conclusion is that the circuit court erred in awarding the writ, so far as it required the defendant to give notice for the election of three additional judges for the circuit court and three additional judges for the superior court, and that the judgment was correct so far as it related to the election of a judge to fill the office now occupied by Henry M. Shepard. The judge so elected will hold his office for the remainder of the term of six years, which began on the first Monday of December, 1901. The judgment is reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

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1. Burns' Rev. St. 1901, § 4293 (Horner's Rev. St. 1901, § 6776), provides that, when any town improvement has been completed according to the contract, the town trustees shall cause a final estimate of the cost to be made by the town engineer, and shall require such engineer to report to the board certain facts touching the improvement. Section 4294 (section 6777) declares that after such report has been filed the board of trustees on notice shall cause a hearing of objections before a committee to be had, the board of trustees being given the power to adopt, alter. or amend the report, and assess the special benefits against the property benefited. Held, that the trustees in such investigation, and with regard to such report, acted in an administrative, and not in a judicial, capacity, and had the power at any time before the assessment of benefits to set aside or vacate the order requiring the town engineer to make the final estimate and report on the ground that the improvement had not been completed according to contract.

Appeal from circuit court, Johnson county; W. J. Buckingham, Judge.

Mandamus by the state, on the relation of Frank Lawson and others. against the town of Greenwood and others. From a judgment awarding a peremptory writ, respondents appeal. Reversed.

64 N.E.-54

E. A. McAlpin and Miller & Barnett, for appellants. Douglas Dobbins, Hawkins & Smith, Carson & Thompson, and Baker & Daniels, for appellees.

MONKS, J. The relators, contractors for the construction of a public work under the Barrett law, brought this proceeding to compel the board of trustees of the town of Greenwood, by writ of mandamus, to take action upon the report made by the town engineer, under section 4293, Burns' Rev. St. 1901 (section 6776, Horner's Rev. St. 1901), and to either "adopt, alter, or amend the same," and "cause an assessment list" to be made, as required by said law. An alternative writ was issued. Appellants filed a return in two paragraphs, the first of which was a general denial. A demurrer for want of facts was sustained to the second paragraph of said return. A trial of said cause by the court resulted in a finding and judgment for a peremptory writ as demanded.

It is insisted by the appellants that the court erred in sustaining appellees' demurrer to the second paragraph of the return to the alternative writ. The controlling question presented by this demurrer to said paragraph of return is whether or not the board of trustees of a town, after having caused a final estimate of the total cost of an improvement and the report required by section 4293, Burns' Rev. St. 1901 (section 6776, Horner's Rev. St. 1901), to be made by the town engineer, and the said report has been filed, has the power to rescind and set aside its action in causing said estimate and report to be made, on the ground that said work has not been completed according to contract. Section 4293 (section 6776) supra, provides that: "When any such improvement has been made and completed according to the contract therefor made, * the board of trus

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tees of such town shall cause a final estimate of the total cost thereof to be made by the * * * town engineer, * * ** and the board of trustees of such town shall require said * town engineer to report to * the board of trustees of such town the following facts touching said improvement." The next section, being section 4294, Burns' Rev. St. 1901 (section 6777, Horner's Rev. St. 1901), provides that after said report has been filed the board of trustees of such town shall give the notice, as required by said section, of the time and place when and where a hearing can be had upon such report before a committee to be appointed for that purpose; that any person aggrieved by such report shall have the right to appear before such committee and board of trustees, and make objections thereto, and shall be accorded a hearing thereon. The committee provided for in said section is required to make a report to the board of trustees recommending the adoption or alteration of said report, and the board of trustees have the power to adopt, alter, or amend the same, and to

assess against the several lots or parcels of ground the special benefits received. Appellees insist that the act of the board of town trustees in requiring said final estimate and the report provided for in said section 4293 (section 6776), supra, was an acceptance of the work, and that said act was judicial, and could not be rescinded. We cannot concur with appellees in their contention. When an improvement made under the Barrett law is completed according to the contract, it is the duty of the board of trustees of a town to cause the town engineer to make the final estimate, and to require him to make the report provided for in said section; and, if such board refuse to cause said final estimate and report to be made and filed, such board may be compelled to do so by writ of mandate. When such report is made and filed, the board of trustees may be compelled to act upon it by writ of mandate. The power to determine whether or not the improvement has been completed according to the contract is not strictly a judicial one, although the performance of such duty requires the exercise of judgment. Ellis v. Steuben Co., 153 Ind. 91, 92, 54 N. E. 382, and cases cited; City of Madison v. Smith, 83 Ind. 502, 515, 516. It was said by this court in Ross v. Stackhouse, 114 Ind. 200, 203, 16 N. E. 501, 502: "It is settled that where the act or decision of a common council, or other similar body, is done or made in pursuance of notice which the law requires, and is in its nature such as to adjudicate upon, or determine, or affect the substantial personal property rights of those notified, a decision once rendered cannot ordinarily be rescinded or set aside. The rule has no application, however, to matters of a merely administrative or legislative character. Bodies having cognizance of such subjects may modify, repeal, or reconsider their action in regard to matters of that nature at any time, provided the vested rights of others are not thereby affected. Over such matters they exercise a continuing power. Welch v. Bowen, 103 Ind. 252, 2 N. E. 722; Board v. Fullen, 111 Ind. 410, 12 N. E. 298." The general rule is that the governing body of a municipal corporation has the power, if vested rights are not thereby interfered with, and the rights of third parties have not intervened, to rescind action previously taken. Formal consideration and rescission are generally unnecessary where the course afterwards pursued is inconsistent with that formerly adopted. 20 Am. & Eng. Enc. Law (2d Ed.) pp. 1215, 1216; 1 Dill. Mun. Corp. § 290; Tied. Mun. Corp. § 98, on page 154; 1 Beach, Pub. Corp. §§ 297, 298. After a careful consideration of the question, we are satisfied that under the law known as the "Barrett Law," the board of trustees of a town have the power, at any time before the assessment of benefits has been made by such board under section 4294, Burns' Rev. St. 1901 (section 6777, Horner's Rev. St. 1901), against the lots and parcels of ground benefited by said im

provement, to set aside and vacate the order requiring the town engineer to make the final estimate and report required in section 4293, Burns' Rev. St. 1901 (section 6776, Horner's Rev. St. 1901), on the ground that the improvement was not completed according to the contract. Whether said board has such power after the assessment of benefits is made, we need not determine in this case.

There are some allegations in the return in regard to fraudulent conduct of appellees in procuring the board of trustees to cause said estimate and report to be made. As we deem these allegations unnecessary, the argument of appellees in regard to their insufficiency is not considered.

We determine nothing as to the sufficiency of the petition and alternative writ, as this question is not discussed by counsel in their briefs.

Judgment reversed, with instructions to overrule the demurrer to the second paragraph of return, and for further proceedings not inconsistent with this opinion.

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APPEAL RECORD

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1. An allegation in an indictment that defendant, "in pursuance of a previous arrangement and appointment * so to do, did unlawfully engage as a principal with gaid William Dickerson in a fight between each other with their fists for and upon a certain (unknown) wager," sufficiently charges the crime of prize fighting under a statute that "whoever engages as principal in any prize fight * * shall be fined," etc.

2. The index, marginal notes, and numbered lines upon the transcript, duly appearing in the record of an appeal as it comes to the supreme court, will be presumed, in the absence of a proper contrary showing, to have been added before the transcript was filed therein.

Appeal from circuit court, Sullivan county; O. B. Harris, Judge.

Robert Patten was indicted for prize fighting, and from a judgment sustaining his motion to quash the indictment the state appeals. Reversed.

E. W. McIntosh, W. H. Bridewell, W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State. John T. Hays and Will H. Hays, for appellee.

HADLEY, J. Appellee was arraigned for trial upon the following charge: "That Robert Patten, late of said county, on the 25th day of June, 1901, at and in the county of Sullivan and state of Indiana, by and in pursuance of a previous arrangement and appointment with William Dickerson so to do, did then and there unlawfully engage as a principal with said William Dickerson in a fight between each other with their fists for and upon a certain wager, which wager is

to the prosecuting attorney unknown." Appellee's motion to quash was sustained, and the state appeals.

The charge is predicated on this statute: "Whoever engages as principal in any prize fight, or attends any such fight, as a backer, trainer, second, umpire, assistant, or reporter, shall be fined," etc. No question is made as to the validity of the statute, but the sole contention is whether the facts set forth in the information constitute a prize fight within the meaning of the statute under a proper construction thereof. Appellee insists that the charge is insufficient for failure to describe the encounter in the language of the statute; that is, for failure to charge that the "defendant did unlawfully engage, as a principal, in a prize fight." Whether the charge, if made as appellee insists it should have been, would be good or bad, we are not called upon to decide. Our only task is to determine whether the one before us sufficiently states the public offense of prize fighting. That which is essential to a criminal charge is that the indictment or information shall set forth with reasonable precision and certainty all the elements necessary to constitute the offense meant to be punished, and will advise the defendant of the things which he is called upon to answer. What is necessary to an indictment is thus defined by the statute: "The indictment or information must contain: First. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties. Second. A statement of the facts constituting the offense, in plain and concise language without unnecessary repetition." Section 1800, Burns' Rev. St. 1901. The language used in clause second is precisely the language employed in clause second of section 341, Burns' Rev. St. 1901, which declares the requisite of a complaint in a civil action. The whole purpose of the legislature, in the enactment of both the Civil and Criminal Code, was to do away with useless forms, repetition, and technicality, and thus bring the procedure in both classes of action to the "common understanding." When a statute specifically, and with certainty to a common intent, defines what facts shall constitute an offense, it is usually sufficient to charge the crime in the language of the statute, but statutory language is usually insufficient where the offense is not defined by the statute. Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631, and cases cited; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Hopewell v. State, 22 Ind. App. 489, 492, 54 N. E. 127. It is proper, if not necessary, in all cases to set forth in the indictment or information the facts relied upon by the state in "plain and concise language," and from those facts the court will determine whether the charge comes within the prohibition of the statute, and its proper

name or designation. The real facts of a charge are not affected one way or another by any term or appellation which the grand jury or prosecuting attorney may give to or withhold from it. "Where the definition of an offense, whether by rule of common law or by statute," says a distinguished author, "includes generic terms, as it necessarily must, it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but it must state the species; it must descend to particulars." 1 Archb. Cr. Pr. & Pl. p. 88; Enc. Pl. & Prac. p. 480, and cases collated. When a public offense has been declared by statute, and punishment fixed therefor, without definition,as now well established may be done in this state, the courts will resort to the common law, and the general import of the language used, to determine the sufficiency of the charge within the general terms of the statute. Ledgerwood v. State, supra; Hedderich v. State, 101 Ind. 564, 572, 1 N. E. 47, 51 Am. Rep. 768. It remains to be seen if the facts alleged in the information sufficiently state the public offense of prize fighting. Webster defines a prize fight to mean "an exhibition contest of pugilists for a stake or reward," and the Century Dictionary defines the same term as "a pugilistic encounter or a boxing match for a prize or wager." For the views of other courts as to the popular meaning of the term arising upon similar statutes, see Seville v. State, 49 Ohio St. 117, 30 N. E. 621, 15 L. R. A. 516; People v. Taylor, 96 Mich. 576, 56 N. W. 27, 21 L. R. A. 287; Com. v. Barrett, 108 Mass. 302. "Prize fight" is a phrase of common use, and its employment indicates what is meant as clearly and distinctly as other English terms. When it is said that one, in pursuance of a previous arrangement and appointment with another, did unlawfully engage as principal in a fight with that other with their fists, for a wager, there is, by one of ordinary understanding, no mistaking the nature of the act. Such an act is at once understood to mean "a pugilistic encounter for a prize or wager." The facts alleged in the information constitute a prize fight within the meaning of the statute, and, being otherwise formal, are sufficient to put the appellee upon trial for that offense.

Appellee objects to a consideration of this appeal for want of an index, marginal notes, and numbered lines upon the transcript, as required by the rules of this court. As the record comes to us, all these things are supplied in accordance with the rules, and, in the absence of a proper showing that they were added after the filing, we must presume that they were added before the transcript was filed in this court.

Judgment reversed, with instructions to overrule the motion to quash, and for further proceedings in accordance with this opinion.

(159 Ind. 232)

PLACE v. BAUGHER. (Supreme Court of Indiana. Oct. 7, 1902.) EVIDENCE-DAYBOOKS-RES GESTÆ-READING TO JURY-LOCAL CUSTOM-HARMLESS ERROR.

1. As a part of the transaction of measuring certain logs purchased by plaintiff of defendant, defendant, who did most of the measuring, wrote down the number of feet of timber therein on a board. His assistant measured the balance of the logs, and all such measurements as made by himself and assistant were transferred the same day by defendant to his daybook. The correctness of such measurements and entries were testified to by defendant and his assistant, and defendant further stated that he could not, from memory alone, recall the number of feet in each log. Held, that the reading of such entries by defendant as part of his evidence was proper, they being res gestæ, and such evidence not being that exhibited by the books wholly unexplained.

2. The evidence plainly showed that it was agreed between plaintiff and defendant that defendant, a millman, was to do the measuring of the logs. Held, that the admission of evidence of a local custom that the measurements of logs made by a millman purchasing them should control in a settlement for such logs was, if error at all, harmless to plaintiff.

Appeal from circuit court, St. Joseph county; W. A. Funk, Judge.

Action by Ira F. Place against John W. Baugher. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Anderson, Du Shane & Crabill, for appellant. Shively & Wair and F. J. Lewis Meyer, for appellee.

JORDAN, J. This action was originally instituted against appellee by appellant in the court of a justice of the peace to recover $152.25, a balance alleged to be due and unpaid on a claim for 43,294 feet of logs sold and delivered by appellant to appellee at the agreed price of $10 per 1,000 feet. Appellee claimed that the logs received by him, according to measurements, contained only 27,126 feet of sound timber, and that by mistake he had paid appellant more than was actually due him for the logs, the excess, as claimed by him, amounting to $20.23, for which amount, under his pleading, he demanded judgment. A trial in the justice's court resulted in a judgment against appellant in favor of appellee for $20.23, from which judginent the former appealed to the circuit court, wherein appellee was awarded a judgment for a like amount, from which appellant appealed to the appellate court before the taking effect of the act of March 12, 1901. By virtue of the act of the general assembly approved March 13, 1901, the appeal was transferred to this court.

The real question involved is in respect to the number of feet of sound timber received by appellee from appellant. It is insisted by the latter that a new trial ought to have been granted for two reasons: (1) Because the court erred in allowing appellee to introduce his book of accounts in evidence; and (2) in permitting him to introduce evidence in rela

tion to a general custom or usage which it is claimed existed in the county of St. Joseph and in the northern part of the state of Indiana, to the effect that in the sale of logs to a millman the measurements made by the latter are taken and considered in a settlement made between the seller and the purchaser as the basis of the settlement. It appears from the evidence that appellee operated a sawmill at the town of Walkerton, in St. Joseph county, Ind., and the logs in dispute were purchased by him of appellant in the years of 1896 and 1897,-some four years and over before the trial in the lower court. Appellee was a witness in his own behalf, and testified to the delivery of the logs at his sawmill by men in the employ of appellant. The principal part of the logs were measured by appellee at his mill yard as they were delivered, and the number of feet of sound timber contained in each log according to his measurement and scaling was inscribed at the time on a piece of smooth plank, and at the close of each day's transaction he would transfer and enter these measurements in a daybook or journal of accounts, and afterwards would transfer and enter them in his general ledger. A number of the logs, it appears, were measured by one McDaniel, who was assisting appellee in operating the sawmill, and these measurements, on the same day they were made, were also entered by appellee and McDaniel in the daybook. McDaniel testified that the measurements made by him were correct. Appellee testified that he remembered of the logs being delivered at his mill by the employés of appellant, and that he, and McDaniel made the measurements as stated. and that his books exhibited the total and correct number of feet of sound timber delivered at his mill by appellant; but he further testified that he could not state from memory alone the result of his measurements, without referring to his book of accounts in which he had entered the measurements as hereinbefore stated. Over the objections and exceptions of appellant, the court permitted him, as a part of his evidence, to read the entries in question from his daybook or journal of accounts. It is contended by counsel for appellant that this, in effect, was the introduction or admission of appellee's books in evidence in his own favor, and therefore the court, in so ruling, erred. The law in this state relative to the admission in evidence of a party's account books in his favor is somewhat unsettled. The decision in each case seemingly is controlled by the particular circumstances. In De Camp v. Vandagrift, 4 Blackf. 272, which was an action of assumpsit, it was held that the plaintiff's book of accounts, in which he had charged the items for which he sued, were not admissible to support his demand, for the reason that the admission of the books, under the circumstances in that case. would be violative of the common law of England as adopted in this state. In Railroad Co. v. Noel, 77 Ind. 110, which was an action

to recover against a railroad company for the burning of a rick of wood, this court held that the trial court properly ruled in refusing to allow the defendant to put in evidence certain entries made in its own books. Woods, J., speaking for the court, said: "They are not res gestæ, nor public records. They were the private entries in the private books of the company, made by its agents in the course of their business, but not, on that account, admissible as evidence, however useful they may or might have been as a memoranda to be used in refreshing the memory of the witness who made them." But books or journals of accounts have been held admissible where the entries therein constituted a part of the res gestæ. Glover v. Hunter, 28 Ind. 185; Fleming v. Yost, 137 Ind. 95, 36 N. E. 705. The books of a bank, kept in the usual course of business, have been held admissible for the purpose of showing the state of the depositors' accounts. Culver v. Marks, 122 Ind. 554, 23 N. E. 1086, 7 L. R. A. 489, 17 Am. St. Rep. 377. See, also, Johnson v. Culver, 116 Ind. 278, 19 N. E. 129. But the point, as here presented, does not involve the mere naked question of the introduction of appellee's daybook. As disclosed by the facts, he testified that the logs were delivered at his mill; that he measured the principal portion thereof, and as a part of the transaction or matter of measuring them he would enter in writing upon a board used for that purpose the number of feet of sound timber contained in each log as ascertained by his measurement and scaling. These measurements so temporarily made were on the same day transferred to and entered by him in his regular day book or journal of accounts. He stated that the entries in respect to the number of feet and the dates on which the logs were received at his mill as entered in his book were correct. As disclosed, several years had passed since the transaction, and without reference to his books he was unable, as he testified, to give from memory alone the number of feet contained in each log which he had measured. Under these circumstances the trial court permitted him to refer to his book, and from an examination thereof to state or read therefrom as a part of his own evidence the number of feet of timber as therein entered and received by him from appellant. In so ruling under the circumstances the court did not err. The witness, as shown, made the entries himself. They were the res gestæ,-a part of the transaction of the delivery and measurement of the logs, and the admission of the evidence under the circumstances was not that which was merely exhibited by the books wholly unexplained.

We do not consider the second alleged error, relative to the admission of evidence to prove the custom or usage in controversy. and therefore the question whether such custom is unreasonable, as claimed by appellant, is not determined, for the reason that there is evidence fully showing that it was agreed

to and understood by appellant that appellee was to do the measuring and scaling of the logs at his mill. There is also evidence disclosing that appellee would sometimes measure the logs in the presence of appellant's employés who hauled and delivered them to the mill yard, one of these being appellant's own son. The latter would sometimes, as testified to by appellee, dispute with him in regard to the number of feet of sound timber in some of the logs as shown by appellee's measurements and scaling, and thereupon appellee would state to him that, if he did not want to accept his measurements, he need not leave the log at the mill; but in each instance the log was left at the mill. Appellant, on the trial, was permitted to introduce evidence to support, so far as he could, what he claimed was the number of sound feet of timber delivered by him to appellee. The lower court, it appears, regarded the evidence which appellee gave as a witness in his own favor in respect to the actual number of feet of sound timber contained in each log delivered at his mill as the most satisfactory and reliable, and rendered its judgment accordingly. If the evidence in regard to the question of custom be rejected, there still, in our opinion, remains ample undisputed evidence to justify the finding of the trial court; hence, under the circumstances, if it were conceded that the court erred in admitting the evidence in respect to the custom or usage in dispute, such error would be harmless.

We conclude that the judgment should be, and is, therefore, affirmed.

(159 Ind. 242)

DAVIS et al. v. CHASE. (Supreme Court of Indiana. Oct. 7, 1902.) By stipulation, former mandate modified. For former opinion, see 64 N. E. 88.

PER CURIAM. And afterwards, to wit, on the 7th day of October, 1902, the same being the 116th day of the May term, 1902, the court, being sufficiently advised in the premises, modifies the mandate herein, with an opinion per curiam, as follows:

Upon a stipulation filed by appellants and appellee Chase, it is ordered that this court's mandate in the above-entitled cause be modified so as to read as follows: The judgment in favor of appellee Chase is reversed, with an instruction to the court below to restate its conclusions of law by declaring the contract sued on by him to be void, and to render final judgment in favor of appellants against appellee Chase. The judgment of appellees Kreider against John Davis is affirmed, and the judgment of said Kreiders as against appellant Elizabeth is reversed, with instructions to sustain her demurrer to said Kreiders' cross-complaint, and to grant the latter leave to amend the same in the event that they apply for leave so to do.

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