contract. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. W. Talbott, Geo. W. Feldman, and A. J. Home, for appellant. L. J. Lewis Meyer, for appellee.

land, in addition to which the boundaries of | Lippman to recover damages for breach of said four-acre tract would have to include all the land lying west of Carrollton within the half quarter section named. The appellees claimed title through an administrator's sale, and it was found that appellant was an heir of the decedent. It was found also that notice of the pendency of the petition to sell was published, and was found by the court to be sufficient. This, the appellant insists, does not show jurisdiction over the person of the appellant in that proceeding, since it is not found that he was named as a defendant, and as such was included in the service of process or publication. In a collateral inquiry it has often been held that jurisdiction over the person will be presumed where the court has had jurisdiction of the subjectmatter, and it does not affirmatively appear that the person raising the inquiry was not a party. Bailey v. Rinker (Ind. Sup.) 45 N. E. 38; Shoemaker v. Arrester Co., 135 Ind. 471, 35 Ν. Ε. 280; Nichols v. State, 127 Ind. 406, 26 Ν. E. 839; Bank v. Ault, 102 Ind. 322, 1 Ν. Ε. 562. All facts necessary to the recovery of said two lots were returned, and judgment against the appellant was proper thereon; but, as to the four-acre tract, nelther from the complaint nor from the findings of the jury could the court render a judgment including a sufficient description. The judgment of the lower court is therefore reversed, with instructions to render judgment for the appellees as to said lots 11 and 12, and as to the issues concerning the 4-acre tract to render judgment for costs in favor of the appellant, but to render no judgment as to the ownership or possession of said tract of 4 acres. The costs of this appeal are adjudged against the appellees.

(18 Ind. App. 316)

JUNKIN ▼. LIPPMAN.
(Appellate Court of Indiana. Oct. 29, 1897.)
ACTION ON CONTRACT-JUDGMENT ON SPECIAL
VERDICT-NEW TRIAL.

1. Plaintiff was the lessee of a part of de fendant's building. Defendant desired to repair it, and, on account of the inconvenience to plaintiff, agreed to partition into sleeping rooms a large room owned by him, not included in the lease, and let plaintiff have it rent free, but he failed to partition such room. In an action for damages a special verdict was returned, finding every fact essential to plaintiff's recovery, except that the jury did not find within what time defendant agreed to partition the room, but they found he failed to perform the contract within a reasonable time. Held not error to render judgment for defendant on such verdict.

2. Where a special verdict fails to find a material fact essential to plaintiff's recovery, and judgment is for that reason properly rendered for defendant, the appellate court cannot, on affirming the judginent, order a new trial because justice would be thereby better subserved, or on the ground that it is the duty of the court, where a special verdict fails to find a material fact, to grant a new trial.

Appeal from circuit court, St. Joseph county; A. Anderson, Special Judge.

Action by Susan J. Junkin against Leibman

HENLEY, J. The appellant was the lessee of a part of appellee's building, situated in the city of South Bend. Appellee desired to repair and remodel the building, and on account of the inconvenience to which appellant would be put, and the loss of trade occasioned thereby to appellant, appellee agreed to partition into sleeping rooms a large room owned by him, but not included in the rental contract with appellant, which large room the appellant was to have the use of, rent free, for the losses occasioned to her by the repairing of the building. Appellee did not partition the room, and appellant, Susan J. Junkin, brought this action in the lower court against appellee, Leibman Lippman, demanding damages for the breach of the contract as above set out. The cause was put at issue, and a trial had by jury, and a special verdict returned. Upon motion therefor, the lower court rendered judgment upon the special verdict in favor of defendant, and overruled the motion of plaintiff (appellant) for judgment thereon. The motion for a venire de novo was rightly overruled. The only question before this court is the correctness of the ruling of the lower court in sustaining the motion of appellee for judgment upon the special verdict. We do not believe it would be of any value to the legal profession to set out in this opinion the finding of the jury. It is sufficient to say that the jury found, by its answers to the interrogatories submitted, every fact essential to appellant's recovery, except that they did not find within what time the appellee agreed to partition or complete the work of partitioning the large room into bedrooms. It was found that appellee agreed to do this work in consideration of appellant permitting him to make the repairs and alterations upon the building. The jury found that appellee wholly failed to perform his part of the agreement within a reasonable time, and that appellant had suffered damages in a certain sum. was certainly necessary and material for the jury to find within what time or when the work agreed to be done by appellee in partitioning the large room was to be completed. What a reasonable time is depends upon the facts to be proven, and showing the character of the work, location, and extent thereof, the season of the year, and any other matter that might tend to hasten or delay it. The special verdict herein, standing alone, as it must stand, does not show but that a reasonable time allowed appellee to complete his work would have taken him beyond the close of appellant's tenancy, and in that event appellant could not have been damaged. We do not think there was error of law in rendering

It

make them all effective, unless by so doing the purpose of the legislature will be defeated. It is made an offense for any person to keep a room with devices for betting, and it is also an offense for any person to record or register bets upon certain things specified. The "any person" in the second division cannot be said to be the "any person" used in the first division, and the word "and," connecting the two, might properly be read "or." It is clear that the legislature intended by the language used to state two distinct offenses. Streeter v. People, 69 Ill. 595; State v. Myers, 10 Iowa, 448; Miller v. State, 3 Ohio St. 475. It has long been settled by the decisions in this state that where a statute makes it a crime to do any one of several things, and they are stated disjunctively, the whole may be charged conjunctively in a single count. Davis v. State, 100 Ind. 154; State v. Stout, 112 Ind. 245, 13 N. E. 715; Fahnestock v. State, 102 Ind. 156, 1 Ν. Ε. 372.

and did then and there keep and exhibit apparatus, blackboards, blanks, papers, and other devices for the purpose of registering bets and wagers upon the results of trials and contests of skill, speed, and power of endurance of man and beasts, contrary to the form of statute in such case made and provided, and against the peace and dignity of the state of Indiana." Section 2179, Burns' Rev. St. 1894 (section 2084, Horner's Rev. St. 1897), upon which the indictment is based, reads: "Any person who shall keep any room or building or any portion of any room or building, or occupy any place or public or private grounds anywhere within the state with apparatus, books, or other devices for the purpose of recording or registering bets or wagers or of selling pools; and any person who shall record or register bets or wagers or sell pools upon the result of any trial or contest of skill, speed, or power of endurance of man or beast; or, being the owner, lessee, or occupant of any such rooms, building, part or portion thereof, shall knowingly permit the same to be used or occupied for any of the purposes aforesaid; or shall therein keep, exhibit, or employ any device or apparatus for the purpose of registering or recording such bets or wagers or for the selling of such pools; or shall become the custodian or depository, for hire or reward, of any money, property, or other thing of value staked, wagered, or pledged, as aforesaid, upon any such results, -shall be deemed guilty of a mis- | part of that division. That part of the section

demeanor, and shall, upon conviction, be fined not more than five hundred dollars nor less than five dollars, or imprisoned in the county jail for not more than six months nor less than ten days." This section of the statute defines several acts that would constitute a crime, which may be briefly stated: (1) Any person who shall keep a room or building with apparatus or other devices for the purpose of recording or registering bets or wagers; (2) any person who shall record or register bets or wagers or sell pools upon the result of any trial or contest of skill, speed, or power of endurance of man or beast; (3) any person, being the owner of a room or building, who shall knowingly permit it to be used or occupied for the purposes aforesaid; (4) any person who shall keep, exhibit, or employ any device or apparatus for the purposes of recording or registering such bets; (5) any person who shall become the custodian or depository, for hire or reward, of any money, property, or other thing of value staked or wagered upon any such results aforesaid,-shall be, etc. It is argued that it takes both the first and second divisions, as above set out, to constitute an offense, for the reason that they are joined by the conjunction "and." But we do not believe such to have been the intention of the legislature. To give the section such a construction, the words "any person" must be omitted from the second division, which would be a violation of the well-settled rule that in construing a statute such meaning will be given to the words of the statute construed as will

It is urged that that part of the statute upon which the second division of the indictment is based simply refers to the recording or registering of bets or wages generally, and that it does not mention "trials or contests of skill, speed, or power of endurance of man or beast." In that view of it, the added words would be mere surplusage, and would not render the indictment bad. But we think these words are not mere surplusage, but are properly made a

upon which this division of the indictment is based refers to recording or registering "such bets." The only bets specified in the statute are those named in the indictment, and the word "such" could have reference only to what has been before enumerated in the statute.

Appellant's counsel argue that, as the statute does not specifically state what acts constitute the offense, the indictment is not sufficient if it only follows the statute, but that the particular acts must be stated with reasonable certainty. The gist of the crime charged is keeping certain apparatus for the purpose of registering bets or wagers. The language of the statute itself is sufficiently plain, and defines with sufficient certainty the elements of the crime. The defendant is charged with keeping certain devices for unlawful purposes, and it is not material whether he had a customer or not. The indictment properly charges two of the offenses named in the statute, and the motion to quash was properly overruled. Davis v. State, supra; State v. Stout, supra; Fahnestock v. State, supra; section 1825, Burns' Rev. St. 1894 (section 1756, Horner's Rev. St. 1897).

Appellant's counsel next argue the sixth and seventh causes for a new trial. These were as follows: "(6) The court erred in giving on its own motion instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, inclusive. (7) The court erred in refusing to give instructions requested in writing by the defendant at the proper time, signed by the defendant's attorneys, and numbered 1, 2, 3, | Keyes v. State, 122 Ind. 527, 23 Ν. Ε. 1097. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15, inclusive." It is well settled in this state that, where a series of instructions are assailed collectively in a motion for a new trial, all the instructions in the group must be bad, or the assignment will not prevail. Railway Co. v. McCartney, 121 Ind. 385, 23 Ν. Ε. 258; Mock v. City of Muncie, 9 Ind. App. 536, 37 Ν. Ε. 281. It is not claimed by appellant's counsel that instructions Nos. 2, 5, 6, 7, 8, and 10 were erroneous; and we must not only assume that they state the law correctly, as no objections have been pointed out, but it is clear from a reading of some of these instructions that they correctly state the law. Nor is it claimed by counsel that the court erred in refusing to give instructions numbered 1, 2, 3, 4, 6, 8, and 9.

1. An indictment for violating Act March 11, 1895, § 4 (Horner's Rev. St. 1897, § 5323d), providing that any room where intoxicating liquors are sold under a license authorizing the sale of liquor in quantities less than a quart, with permission to drink the same on the premises, shall be situated on the ground floor of the building in which the liquors "are sold," etc., is insufficient, where it merely charges the occupation of a room for that purpose, not located as required, without alleging that liquors were actually sold therein.

2. The indictment need not allege a sale to any particular person.

Appeal from circuit court, Henry county; Eugene Bundy, Judge.

John Hipes was convicted of violating a law regulating the sale of intoxicating liquor, and appeals. Reversed.

S. H. Brown and Brown & Brown, for appellant. Frank E. Beach, Merrill Moores, and Wm. A. Ketcham, Atty. Gen., for the State.

under the law of the state of Indiana, empowering him to sell spirituous, vinous, malt, and other intoxicating liquors in less quantities than a quart at a time, with permission to drink the same upon the premises where sold, and did then and there during all of said time occupy a room for the sale of said intoxicating liquors in manner aforesaid, not then and there fronting the street or highway upon which the building of which said room formed a part is situated, contrary to the form," etc. It is argued that the motion to quash the indictment should have been sustained for the reason that a person is not liable for a violation of the provisions of the above section unless he actually sells liquor in a room not located and arranged as provided by the section. We think appellant's contention must prevail. The offense is not complete when a person has received his license to sell liquor, and has opened a room for that purpose not located as the law provides. The statute is intended to prevent the sale of liquors in a room not located as provided in the statute. Until liquors are sold in such a room, no offense has been committed. The indictment should show that liquors were sold in the particular room. The statute provides that "any room where intoxicating liquors are sold * * * shall be situated upon the ground floor or basement of the building where the same are sold," etc., not "where the same are to be sold." This fact distinguishes this case from those cases in which it is held that, under a statute making it a misdemeanor for any person to keep a building to be used for gaming, it is not necessary to charge in the indictment that gambling had actually taken place. The purpose of this statute is to regulate the sale of intoxicating liquor, and, although a person may hold a license to sell, and have a stock of liquors in a room not located as required, yet until he makes a sale in such room he has not violated the statute. would not be necessary, in an indictment in such case, to show a sale to any particular person or persons, but it should show that liquors were actually sold in such room. The motion to quash should have been sustained. Judgment reversed.

HENLEY, J., absent.

It

ROBINSON, J. Appellant was convicted of a violation of section 4 of the act of March 11, 1895 (Acts 1895, p. 250; Horner's Rev. St. 1897, § 5323d). The statute provides that: "Any room where intoxicating liquors are sold by virtue of a license issued under the law of the state of Indiana, for the sale of spirituous, vinous, malt or other intoxicating liquors in less quantities than a quart at a time, with permission to drink the same on the premises, shall be situated upon the ground floor or basement of the building where the same are sold, and in a room fronting the street or highway upon which such building is situated, and said room shall be so arranged, either with window or glass door, as that the whole of said room may be in view from the street or highway, and no blinds, screens or obstructions to the view shall be arranged, erected or placed so as to prevent the entire view of said room from the street or highway upon which the same is situated during such days and hours when the sale of such liquors are prohibited by law. Upon conviction," etc. The indictment charges that on the 24th day of August, 1895, appellant "was then and there and during all of said time a person holding a license issued | at A., stood immediately in front of the plat

(18 Ind. App. 346) CLEVELAND, C., C. & ST. L. RY. CO. V. WADE.

(Appellate Court of Indiana. Nov. 2, 1897.) CARRIERS OF PASSENGERS-NEGLIGENCE - INVITATION TO PASSENGERS-WHAT CONSTITUTES.

1. It is not negligence, per se, for a railroad company to have attached to its passenger train one or more vestibule cars whose doors are closed and locked.

2. It appeared that one of defendant's passenger trains, having five coaches, arrived at A. 10 minutes before its leaving time; that the two front coaches, which had room for all passengers