OFFICERS

OF THE

SUPREME COURT.

CLERK,

GABRIEL SCHMUCK.

SHERIFF,

JAMES ELDER.

LIBRARIAN,

FREDERICK HEINER.

AT INDIANAPOLIS, MAY TERM, 1878, IN THE SIXTYSECOND YEAR OF THE STATE.

READY V. THE STATE.

CRIMINAL LAW.-Suffering Minor to play Billiards.—Indictment.--Gaming. -Under the act of March 8th, 1873, 2 R. S. 1876, p. 484, "making it unlawful for owners," etc., "of billiard tables to suffer or permit minors to play at or upon the same," etc., it is not necessary, in an indictment under section 1 of such act, to allege that any thing had been lost or won upon the game which the minor was suffered to play.

From the Fayette Circuit Court.

W. C. Forey, for appellant.

C. A. Buskirk, Attorney General, for the State.

WORDEN, J.-Indictment, the body of which is as follows: "The grand jurors of the State of Indiana, in and for the county of Fayette, good and lawful men, duly and legally impanelled, sworn and charged in the Fayette Circuit Court, at its April term, 1878, to inquire in and for the body of said county, in the name and by the authority of the State of Indiana, upon their oath, present and charge, that, on the 1st day of December, A. D. 1877, and in the county

Ready v. The State.

of Fayette and State of Indiana, Austin Ready, who was then and there the owner of, had the care, management and control of a billiard and pool table, kept in a saloon for hire, did then and there unlawfully suffer and permit one Edward McCormick, who was then and there a person under the age of twenty-one years, to play one game of pool on said billiard and pool table, with one Richard Tyner." Motion to quash overruled, and exception. Trial, conviction and judgment.

The only question made in the brief of the counsel for the appellant, as we understand it, is, whether the indictment was good; and the objection is, as we gather from the brief, that the indictment does not allege that the game, which it is alleged the defendant suffered the minor to play, was played for money or other thing of value. Whether such allegation was necessary, must depend upon the statute upon which the indictment was based.

The 1st section of the act of March 8th, 1873, 2 R. S. 1876, p. 484, provides: "That if any person owning or having the care, management, or control of any billiard table, bagatelle table or pigeon-hole table, shall allow, suffer or permit any minor to play billiards, bagatelle or any other game at or upon such table or tables, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for each game so allowed, suffered or permitted to be played, be fined in any sum not less than five dollars nor more than fifty dollars."

The 2d section of the act makes it a misdemeanor for any person having the care, etc., of such table, kept in any saloon, hotel or other public place, to permit minors to congregate about such place; and the 3d and last section provides that the act shall not apply to any case where a billiard table, etc., may be kept or used in a private family.

The object of the 1st section of the statute was evi

Ready v. The State.

dently to prevent persons having the care, etc.; of billiard tables, etc., from permitting minors to play upon such tables, the same not being kept or used in a private family; and the prohibition extends to the playing, whether there be any wager upon the game, or otherwise. To constitute the offence there need not have been anything lost or won upon the game suffered to be played by the minor. The State v. Ward, 57 Ind. 537. If the Legislature had intended that something should be lost or won upon the game thus suffered to be played by the minors, in order to constitute the offence, in other words, if that body had intended merely to prevent persons from suffering minors to gamble upon such tables, why did not the prohibition extend to gambling upon tables kept or used in private families? We can not suppose the Legislature intended to prohibit persons from suffering minors to gamble upon such tables in public, but permit it upon tables kept or used in a private family.

The view which we take of the case in no manner conflicts with the case of Williams v. The City of Warsaw, 60 Ind. 457. There the action was brought for the violation of a city ordinance, and the ordinance was construed as intended to prevent gambling, and not merely playing for amusement; because the clauses in the city charter, on which the ordinance was based, contemplated the vesting of power in the city council to pass ordinances to prohibit gambling, or gaming, in a sense that made the winning or losing of something of value upon the game an ingredient of the offence.

We are of opinion that the objection to the indictment is not well taken.

The judgment below is affirmed, with costs.

Sipe et al. v. Holliday et al.

SIPE ET AL. v. HOLLIDAY ET AL.

INJUNCTION.-Action on Injunction Bond.-Defence.-Res Adjudicata.-Matter which goes only to the merits of an action to procure an injunction can not be considered in an action on the bond given in such injunction proceeding.

SAME.-Power of County Commissioners.—Improvement of Streets of Town.— Judicial Notice.-In an action on an injunction bond, to recover damages resulting from the delay occasioned by the injunction, the complaint alleged that the defendant had enjoined the plaintiff from proceeding with the completion of a contract between the plaintiff and the board of commissioners of a certain county, for the improvement of the streets surrounding the public square of the county-seat, which action had been defeated. Held, on demurrer, that the power of such county commissioners to make such contract entered into the merits of that action, and can not be considered in this.

Held, also, it not being averred that such county seat was an incorporated town, that the court can not judicially know that it had been incorporated, and therefore no question arises as to the power of town trustees to make such improvements. SAME.-Defence.-An answer in such action setting up matter which would have been merely a defence to the action for an injunction is insufficient. SAME.-Pleading.- Title to Real Estate.-Jurisdiction of Common Pleas Court.-An answer in such action, alleging that the defendant had applied for such injunction in the court of common pleas on the ground that the improvements being made by the plaintiff would work irreparable damage to adjoining real estate alleged to belong to the defendant, is insufficient, as the title to such real estate was not so involved as to oust such court of jurisdiction.

SAME.-Jurisdiction to grant an injunction was expressly conferred on courts of common pleas by section 21, 2 G. & H., p. 25.

From the Clinton Circuit Court.

J. N. Sims, for appellants.

S. O. Bayless and A. E. Paige, for appellees.

NIBLACK, C. J.-This was a suit by David E. Holliday and John C. Meneely against Charles Sipe and Noah V. Catterlin, on an injunction bond.

The complaint may be briefly stated as follows:

That on the 5th day of November, 1872, and for some time previously thereto, the plaintiffs were engaged in boul