which mortgage was to the appellee, Hibberd, as trustee for the Hill Bros.

It is earnestly insisted that the evidence tending to support the finding for the defendant, considered alone, affords ample support thereto. The strongest and only evidence on the defendant's side is his own testimony and that of one of the Hill brothers. The defendant, Hibberd, testified as follows: "Q. Do you recollect of going to Grzesk's house along with Mr. Hill? A. Yes, sir. Q. Do you remember at that time of having a talk with Grzesk and his wife about securing an indebtedness due Hill Brothers? A. Not before Mr. Hill came after me. Q. State * * * what the conversation was, from beginning to end. A. The substance was this: She was anxious, and said so, to get this settled up, and have no trouble, and wanted to give security. ** * She said she wanted to secure it, so Mr. Hill would be satisfied. I told her that they held the property by a joint deed, and that Mr. Hill couldn't take a mortgage on the property the way the title stood; that it would be of no good. I says: 'The only way, Mrs. Grzesk, you can do, if you want to, you can give your interest in the property to your husband. You can do that, and I shall not advise Mr. Hill to take a mortgage unless this is done. There is no compulsion about it. You can suit yourself about that. Use your own judgment about it. If you want to do that, we will take a mortgage. If you do not do that, we will not take a mortgage, because it will not be of any good.' Then she says: "That is all right; any way to fix it up so it will be satisfactory.' I says: 'In order to do that, it will be necessary to make two deeds. I have a lady in my office, who is a single lady, and she will act as trustee; and I will draw a deed for you and your husband to sign, deeding it to Miss Jennings, and then she will sign a deed deeding it over to your husband, and then it will be his land. Then,' I says, 'we will make the mortgage.' She said, 'Go ahead.' That was the substance of the conversation. * * * I had the deeds prepared at my office. There was nothing said about conveying it back to the wife after the mortgage was made, or holding it for her benefit. * * I was acting as attorney for Hill Bros." On cross-examination by plaintiffs' counsel, the witness said: "She didn't tell me she wanted to secure the debt of her husband. * She wanted to satisfy Hill Brothers, so that there would be no trouble about it, her husband would not be troubled. * * * I think the first thing that was mentioned was the amount due. I told him what the amount was. * She said she wanted to fix it up so Mr. Hill would be satisfied. 'Well,' I says, 'you own this property by a joint deed;' and I says, "The only way you can do, that I would advise Hill to take as security, is for you to deed it over to your husband. If you want to give it to him absolutely, I will advise Mr. Hill to take a mortgage. If you don't do that, I won't advise

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him to take a mortgage.' Q. You went up there for that purpose of getting this fixed up, so you could advise him to take the security that way? A. If possible, yes, sir. I told her how the title was, and that it would have to be conveyed to him if she wanted to do that to secure the debt. That was the purpose. I had the mortgage signed by Grzesk and wife after the deeds were made." Wesley S. Hill testified: "I went down, and got Mr. Hibberd, and went up to the house, and they were all there in the room, and we talked it over with them. Mr. Hibberd told them, in order to give security, as they held their property jointly, it would be necessary for Mrs. Grzesk to deed her property or give it to her husband, as the mortgage would not be worth anything, holding the property jointly; that they couldn't give a mortgage that would be good. She said she would sign the deed anyway, so her husband could give the mortgage." The undisputed evidence shows, also, that the deed from Grzesk and wife to Miss Jennings, and the deed from Miss Jennings conveying the property back to the husband alone, were executed at the same time, and about the same time the mortgage was made by Grzesk and wife to the appellee, Hibberd, as trustee for Hill Bros., to secure the debt of the husband to them; and that both the deeds and the mortgage were taken possession of by appellee, Hibberd, and taken by his agent, Miss Jennings, and, under his directions, she delivered all of them to the recorder of the county in his office, and the same were procured to be recorded without Grzesk paying anything for recording any of the deeds. There was no consideration paid for the conveyance to Miss Jennings, and no consideration paid for the conveyance from Miss Jennings to Wladyslaw Grzesk, the husband; and afterwards, on September 30, 1896, the appellants, Wladyslaw Grzesk and Agnes, his wife, conveyed the premises back to the same Miss Jennings; and she, on the same day, at the same time, conveyed the same back to said Agnes Grzesk and Wladyslaw Grzesk, without consideration.

The appellants' contention is that this evidence shows that the mortgage is void, as it is a contract of suretyship on the part of the wife. It is settled under the statute as to married women that all contracts of suretyship entered into by them are void, no matter who for. Vogel v. Leichner, 102 Ind. 55, 1 N. E. 554. The appellants contend, and the appellee concedes, that the law is that a mortgage executed by a husband and wife on real estate held by them as tenants by entireties (as was the case here, before the conveyances to Miss Jennings, and from her back to the husband), to secure the debt of the husband, being void as to the wife by virtue of the statute forbidding her from entering into contracts of suretyship, it is also void as to the husband. Dodge v. Kemzy, 101 Ind. 102-106, and cases there cited. But it is contended that this is not such a con

a new trial. The judgment is reversed, and the cause remanded, with instructions to grant a new trial, and for further proceedings not inconsistent with this opinion.,

HOWARD, J., took no part in this decision.

(149 Ind. 21)

KERNER . BALTIMORE & O. S. W. RY. CO. (Supreme Court of Indiana. Nov. 3, 1897.) MASTER AND SERVANT-NEGLIGENCE-FELLOW

SERVANTS.

M., authorized by defendant to direct the character of work to be done by its employés, requested decedent, a skilled mechanic, and other machinists, to co-operate in putting a new driving spring into a locomotive, and, when the spring was not in a proper place, a fellow machinist proposed to strike it with a heavy iron, and M. held a torch while he did so, and the spring was driven into place with such force as to cause an iron tool to strike decedent, and kill him. Held, defendant was not liable, as a master is not bound to warn skilled servants against the improper use of appliances, and hence M.'s failure to suggest danger was that of a fellow

servant.

Appeal from circuit court, Martin county; D. J. Hefron, Judge.

Action by Mary A. Kerner, administratrix of the estate of John J. Kerner, deceased, against the Baltimore & Ohio Southwestern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

J. S. Pritchett and Reily & Emison, for appellant. W. H. De Wolf, Gardner & Gardner, and E. W. Strong, for appellee.

HACKNEY, J. This was an action for damages in the alleged negligent killing of John J. Kerner, a machinist in the employ of the appellee's predecessor, the Ohio & Mississippi Railway Company. The trial court instructed the jury, upon the close of the appellant's testimony, to return their verdict in favor of the appellee, and that ruling presents the only question for review. The evidence without conflict establishes the following facts: The decedent and five other machinists were employed in the company's roundhouse, in Washington, in January, 1892, where said decedent had been employed for several years. The machinists, as to the character of the work they should perform

of a cold chisel and the sharpened end of a short bar of iron into the slot to secure the equalizer at the point to which it had been drawn. The spring seemed too stiff for the two men to so far overcome it as to admit the key, and Brenner was directed to call other men to his assistance. When he had resumed the effort, Kerner and others, including Marion, participated; and, by means of steel hooks placed upon the equalizer and in the lower end thereof, an iron bar was inserted, and constituted a lever upon which the men applied the weight of their bodies. This, though a proper means, was not efficient; and, upon closer inspection, it was discovered that the spring was not down in the saddle by near three-quarters of an inch, whereupon one of the machinists, Von Beren, proposed to strike the spring with a heavy iron, and force it into the saddle. This suggestion was followed by the act, Marion holding the torch, that the blow might fall at the right point; and the spring was suddenly driven into place, with such force as to throw the lever, the short bar, and the cold chisel out of place with violence. One of these struck Kerner upon the head, from the effects of which he died before a physician could be summoned. It appeared that the company had supplied a device, known as a "Spring Puller," the use of which, together with the method of pulling down the equalizer with a lever, were the ordinary methods employed. It appeared also that Kerner had frequently replaced broken springs in locomotives, understood the work, and such work was, in part, that for which he was employed; that such work was constantly required of the machinists in said roundhouse, the company having in use more than 60 locomotives, and such repairs were made daily.

That the act resulting in the injury and death of Kerner was without care for the safety of any one engaged in the work then in hand is not questioned by counsel, and is without doubt in our minds. It is insisted by the counsel for appellee that the negligent act was that of a fellow servant of Kerner, and one to which Kerner's negligence contributed. On the other hand, appellant's learned counsel contend that the act was that of a vice principal, Marion, and that it was in violation of the master's duty to supply a safe place to work, and safe ma

rion; and, on the day in question, one of their number, Brenner, was directed by Marion to put into a locomotive a new driving spring in the place of one broken. Pursuant to said direction, Brenner, with his helper, raised, with jackscrews, the frame of the lo comotive, took out the broken spring, set the new one in place, and were endeavoring to pull the equalizer down to key it onto one end of the spring, and were unable to get it down far enough to admit the key into the slot of the equalizer, but had gotten the point

work. Concerning the latter contention, counsel do not advise us wherein the company was negligent, either as to place to work or the appliances of the service. Very clearly, we think, the negligence was either in the use of appliances, safe when properly used, or in failing to use a safe appliance supplied by the company. The handling and repairing of such heavy machinery as railway locomotives, with tools and appliances suited to the service, involves, at best, many hazards, which the employé assumes by his engagement in the service; and it may not be said that the place where such labor is performed is, in a legal sense, dangerous by reason of such hazards. Railway Co. v. Brown, 142 Ind. 659, 42 N. E. 359, and authorities there cited. It would be as difficult to demonstrate that the death of Kerner was in any respect due to the failure to supply proper appliances of the service, or in supplying defective appliances, as to show that the place supplied was dangerous. The plain and unmistakable cause of the injury and death of Kerner was the misuse of appliances, so far as the evidence discloses, proper in every way.

Does the fact that Marion held the torch while another struck the spring with the iron make the company liable on the ground that he was a vice principal? There is some quibbling in the arguments as to whether he was of superior rank to the other machinists, because he gave directions as to the character of work each machinist should perform from day to day. There is no room for confusion as to when one is a vice principal and when a fellow servant. It is not determined by rank in the service or the title by which he is known, but it depends upon the particular service in which he is at the time engaged. If that service is in supplying instrumentalities of the service or the place to perform the service, in short, if he is performing a duty owing by the master to the injured servant, by authority of the master, and does it negligently, or if he negligently omits a duty of the master which he is delegated to perform,-his negligence is that of the master. But if he is engaged with the servant injured in the common service of the master, not involving some duty of the master, he is a fellow servant. Coke Co. v. Peterson, 136 Ind. 398, 35 N. E. 7, and authorities there cited. It cannot be that the master, when he has supplied a safe place to work, has furnished tools and appliances free from fault, and, when he has not been careless in the employment of unskillful servants, is required also to have present, as each act of each servant is performed, some one to warn the servant against the improper use of the appliances furnished. If he is not so required, then it is clear that Marion's failure to suggest the danger from striking the spring with the heavy iron was not the failure of the company, and his failure was that of a fellow servant.

With this conclusion, it is not contended that the appellant was entitled to recover. We might, however, suggest the absence of evidence that the decedent, who was a mechanic of years of experience in the line in which all were then engaged, was free from the same negligence claimed against Marion, namely, in not foreseeing the result of striking the spring. There is no possible view of the case upon the evidence in the record which would have justified a verdict for the appellant, and the circuit court did not err in directing the verdict. Judgment affirmed.

STATE v. KATES.

(149 Ind. 46)

(Supreme Court of Indiana. Nov. 23, 1897.) INCEST-RE-ENACTMENT OF STATUTE-REPEAL

ABATEMENT OF PROSECUTION.

Act March 6, 1897 (Acts 1897, p. 184), reenacting verbatim the provisions of Rev. St. 1894, § 2076 (Rev. St. 1881, § 1990), defining and fixing the punishment for incest between stepfather and stepdaughter, does not repeal the prior act, so as to abate a prosecution begun thereunder.

Appeal from circuit court, Greene county; W. W. Moffett, Judge.

Wesley Kates was indicted for incest. From an order quashing the indictment, the state appeals. Reversed.

Wm. A. Ketcham, Atty. Gen., Merrill Moores, and Hunt & Bridwell, for the State. Short & Riddle, for appellee.

HOWARD, C. J. The court quashed an indictment charging that appellee had been guilty of the crime of incest with his stepdaughter. No objection is made to the form or substance of the indictment; but it is contended that since appellee was indicted, on February 26, 1897, under section 2076, Rev. St. 1894 (section 1990, Rev. St. 1881), and since this section of the statute was amended by the legislature, March 6, 1897 (Acts 1897, p. 184), it therefore follows that the statute under which he was indicted was impliedly repealed by the amendatory statute, and that on April 26, 1897, when the ruling was made quashing the indictment, there remained no statute under which he could be convicted, and hence that the motion to quash was properly sustained. In other words, it is sought to uphold the ruling of the court by contending that the statute which defined appellee's crime, and fixed its punishment, was repealed by the amendatory statute, which also defines the crime, and fixes its punishment. So much of section 2076, Rev. St. 1894 (section 1990, Rev. St. 1881), as defined appellee's crime, and prescribed the punishment therefor, reads as follows: "If any stepfather shall have sexual intercourse with his stepdaughter, knowing her to be such, he shall be deemed guilty of incest, and upon conviction thereof shall be imprisoned in the state prison not less than two nor more than five years, or may be imprisoned in the county jail not less than six nor more than twelve months." The same provisions, word for word, are found repeated in the amendatory statute of March 6, 1897; and there was therefore no instant of time when the words above set out were not the law upon the subject. The contention of appellee cannot be sustained. It is firmly established by the decisions of this as well as other courts that the re-enactment of a statute or of a provision of a statute is not a repeal of such statute or provision. This question was quite fully considered, and the

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authorities cited and discussed, in Sage v. State, 127 Ind. 15, 26 N. E. 667, also a criminal case. It was there said by Judge Elliott: "Principle forbids the conclusion that an amendatory statute defining an offense in substantially the same language as that employed in the statute it amends takes away the right of the state to prosecute the offender, and requires his unconditional discharge." The question was again before the court in Reynolds v. Bowen, 138 Ind. 434, 36 Ν. Ε. 756, and 37 N. E. 962, where the authorities were again reviewed, and the same conclusion reached. It was there said, citing Suth. St. Const. §§ 133, 134, 156, that "even if there were an express repeal of the law in question, and at the same time, in the same statute which repealed it, a re-enactment of the law repealed, the re-enactment would so far neutralize the repeal as to keep the old law in force without interruption"; also citing Moore v. Township of Kenockee, 75 Mich. 332, 42 N. W. 944, that, "even where the repealing statute only substantially reenacts the law repealed, it is held that inchoate statutory rights accrued under the old law are not defeated." See, further, Thomas v. Town of Butler, 139 Ind. 245, 38 N. E. 808, at pages 252, 253, 139 Ind., and pages 810, 811, 38 N. E. Judgment reversed, with costs, and cause remanded for further proceedings.

(148 Ind. 625)

HAGGERTY v. WAGNER.

(Supreme Court of Indiana. Nov. 4, 1897.) PARTITION - CO-TENANCY - INCHOATE RIGHT OF WIFE-PARTITION SALE-PARTIES-WIFE NOT NECESSARY PARTY-EFFECT OF DEED.

1. Rev. St. 1894, § 2652 (Rev. St. 1881, § 2491), provides that a surviving wife is entitled to one-third of the real estate of which her husband may have been seised in fee simple at any time during the marriage, and in the conveyance of which she may not have joined; and Rev. St. 1894, § 2660 (Rev. St. 1881, § 2499), declares that no sale, disposition, transfer, or incumbrance of the husband's property by virtue of any decree, execution, or mortgage to which she shall not be a party shall prejudice the right of the wife to her third of his lands, or preclude her from the recovery thereof, if otherwise entitled thereto. In a partition the land in question was sold and conveyed as an entirety, by a commissioner, and the proceeds divided among the parties according to their respective interests therein. The wife of one of the plaintiffs, after the death of her husband, sought to recover one-third of his share of such real estate, on the ground that she was not a party to such partition. A provision of the Code of Civil Procedure then in force (2 Gavin & H. St. § 626) required the pleadings and practice in partition to conform to the Code, a section of which (Id. p. 45, § 17) provided that "all persons having an interest in the subject of the action shall be joined as plaintiffs," and another section (Id. p. 46, § 18) that any person may be made a defendant who has or claims an interest in the controversy, or who is a necessary party to a complete determination thereof. Held, that the sale and deed extinguished the inchoate right of such widow, though she was not a party to such proceeding.

2. The inchoate right of a wife to one-third of

her husband's real estate, given by Rev. St. 1894, § 2652 (Rev. St. 1881, § 2491), subsists by virtue of the seisin of the husband, and is subject to all incidents which the law attaches to such seisin, one of which, in case of a tenancy in common, is a liability to be devested by a partition sale.

3. The clause of Rev. St. 1894, § 2660 (Rev. St. 1881, § 2499), substantially providing that the right of the wife to one-third of her husband's real estate shall not be affected by any judicial proceeding to which she was not a party, must be construed with those sections of the Code of Civil Procedure (2 Gavin & H. St. pp. 45, 46, §§ 17, 18) relating to the subject of necessary parties to civil actions, as they are in pari materia; and to give effect to each is possible by construing the requirement of the former as to parties to relate to such parties only as are necessary parties.

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4. Under 2 Gavin & H. St. p. 365, § 23, providing that the moneys arising from a partition sale "shall be paid to the persons entitled thereto according to their respective shares," no money can be paid to the wife of a co-tenant on such sale, even though made a party, as she has no share in the lands of her husband while he lives; and therefore Rev. St. 1894, § 2660 (Rev. St. 1881, § 2499), providing that no "sale ** of the husband's property, by virtue of any deto which she shall not be a party, shall prejudice or extinguish the right of the wife to her third of his lands," etc., does not apply to such sales, as she could effect nothing by being made a party.

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5. Under 2 Gavin & H. St. p. 365, § 21, providing that the conveyance executed by the commissioner for the land sold in a partition proceeding "shall bar all claims of such owners to said lands as effectually as if they themselves had executed the same," the effect of a partition sale and deed is to convey the land of the several owners absolutely, and vest the owners' title thereto in the purchaser.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Suit by Mary J. Wagner against Patrick Haggerty for partition of real estate and to quiet her title to the portion thereof alleged to belong to her. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Ayres & Jones and Caroline B. Hendricks, for appellant. T. E. Johnson, for appellee.

MCCABE, J. Appellee sued appellant in the superior court for partition of lots 16 and 17 in Hannaman's South addition to the city of Indianapolis, and to quiet her title to her alleged proportion thereof. The action was commenced May 3, 1894. The issues formed were submitted to and tried by the court, resulting in a special finding of facts, upon which the court stated conclusions of law favorable to the plaintiff. Judgment was rendered pursuant to the conclusions of law, in favor of the appellee. The conclusions of law are assigned for error.

The material facts found are, in substance, that appellee, Mary J. Wagner, and said Peter Wagner were married on November 22, 1855, in Clay county, Ind., where they lived together as husband and wife until May 11, 1887, when said Peter died intestate, leaving an estate of less than $5,000, and left surviving him said Mary J. as his widow, together with five children. At and prior to May 16, 1856, said Peter Wagner, the husband of appellee, was