and diligent servants, and has furnished suitable and safe appliances with which to perform the service, it is a rare instance in which he is liable for injuries to his servants. The servants owe to the master a diligent and watchful care over his business, and they owe to each other a vigilance and caution for their own safety. The master should not be held for the consequences of their unfaithfulness to him unless he continues them with knowledge of their faithlessness. The master should not be liable for their neglect of the duty they owe to each other, for that is by no fault of his. The rule which deprives them of compensation for injuries sustained from the neglect each of the other inspires that care and vigilance in the discharge of their duties, both to the master and to themselves, which is essential to the welfare of the master and the safety of each other. When the rule is destroyed, its inducement to care is gone, and the master, if not liable for the fault of his servants as between themselves, has servants whose duties require no care excepting that each shall look to his own safety. Where it does not appear that the master has violated a duty owing to his servant, there is not, and should not be, any liability by the master. The burden must rest upon the injured servant to show by his complaint that some duty of the master has been violated. If that duty is one, the discharge of which has been delegated to another, not only the duty, but the delegation of it, as well as its violation, must be shown. The complaint before us fails to plead facts taking the case out of the general rule. Nothing is al. leged from which we can infer a breach of duty by the master, or by one standing by authority in the place of the master in the performance of any duty owing by the master. We conclude, therefore, that the allegations of the complaint are not sufficient to establish the relation of vice principal by Lawrence, the alleged negligent servant. The judgment of the circuit court is reversed.

(135 Ind. 367)

ROSS et al. v. ROSS et al. (Supreme Court of Indiana. Nov. 2, 1893.) WILLS-CONSTRUCTION-NATURE OF ESTATE.

Testator bequeathed to his wife "all my property, personal and real, after paying my just debts and claims: First, to pay my son J. $500, and, at her (my wife's) death, he to come in equal heir with my second children." Said J. was the issue of a former marriage. Held, that the widow took the fee of the realty, and not merely a life estate.

Appeal from circuit court, Fayette county; F. S. Swift, Judge.

Action for partition by Joseph W. Ross and others against Charles Ross and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

J. I. Little and D. W. McKee, for appellants. Conner & Frost and Florea & Broaddus, for appellees.

COFFEY, J. Joseph D. Ross died in December, 1865, leaving the following will:

"Falmoth, Fayette county, Indiana. December the 6th, 1865. Know all men by these presents, that I, Joseph D. Ross, of the county and state aforesaid, do make and publish this, my last will and testament. First. After all expenses paid of settling my estate, I do hereby give and bequeath to my wife, Martha Ross, all my property, personal and real, after paying my just debts and claims: First, to pay to my son Joseph W. Ross five hundred dollars, and, at her (my wife's) death, he to come in equal heir with my second children; and I therefore do appoint W. W. Thresher my executor, in executing this, my last will and testament." The appellant Joseph W. Ross, named in the above will, is a son of the testator by a former marriage; Martha being a second wife, by whom he had three children, namely, the appellee Charles Ross and the appellants Emma Ross and Mary E. Groves. Martha Ross, acting under the belief that the will vested in her the fee to the land of which the testator died seised, sold and conveyed the same; the appellees Overbeizer, Ellis, Vannuys, and McCready claiming it by mesne conveyances through her. Upon her death, the appellants, assuming that the will vested in Martha a life estate, only, in the land of which the testator died the owner, brought this suit for partition, setting out the above will in their complaint. The appellee Overheizer answered that the testator died the owner of the real estate described in the complaint, consisting of town lots in the town of Falmoth, in Fayette county, and a small tract of land adjoining the town, of little value, and nonproductive; that, at the time of the death of the testator, Joseph W. Ross, a son by a former wife, was 20 years of age, and that his children by Martha Ross were infants, the oldest not more than 6 years of age; that he alSO owned personal property inventoried at $2,300; that $700 of the personalty was used in paying debts, and the legacy bequeathed to Joseph W. Ross; that the personalty consisted of household goods, tools, mill wagons, and horses valued at $1,200, and the balance of uncollected accounts, many of which were not collectible; that, after paying said debts and legacy, the executors delivered the property to the said Martha, who never realized thereon a sum in excess of $500, which she used for the support of herself and infant children; that the character of his personalty, and the nonproductive character of his realty, were known to the testator at the time he executed the above will, and that he knew it would consume the whole of the same to support his widow and infant children; that, believing she owned the fee to said realty, the said Martha, for the support of herself and the infant children of the testator, sold and conveyed the same, by means of which the appellees became the owners thereof. To this answer, the appellant filed a demurrer, which was carried back and sustained to the complaint, to which action and ruling of the court the appellant excepted.

The only question presented by the record, and argued by counsel, is the question as to whether this will vested in Mar

tha Ross a life estate, only, in the land described in the complaint, or whether it vested in her a fee-simple interest. The purpose of construing a will is to ascertain, if possible, the intention of the testator; but such construction is generally governed by fixed and well-known rules, approved by the wisdom of ages. There is no statute in this state changing the rules of the common law as to the language necessary to be used in a will in order to vest a fee in land; but it is well settled that it is not necessary, for that pur. pose, to use the word "heirs." Any other word or words denoting an intention of the testator to pass his whole interest to the devisee, such as a devise of "all my estate," "all my interest," "all my property," "my whole remainder," "all I am worth or own," "all my right," "all my title," or "all I shall die possessed of," and other expressions of like import, will carry an estate of inheritance, if there is nothing to limit or control the operation of such words or expressions. Smith v. Meiser, 51 Ind. 419; Schouler, Wills, § 550; Pattison v. Doe, 7 Ind. 282; Roy v. Rowe, 90 Ind. 54; Lennen v. Craig, 95 Ind. 167; Chase v. Salisbury, 73 Ind. 506. So, too, whenever a will purports to dispose of real and personal property in the same terms and in the same connection, and it is manifest that the testator intended both to go together, the will must be so construed. Schouler, Wills, § 511; Ireland v. Parmenter, 48 Mich. 631, 12 N. W. Rep. 883. And where the intention is doubtful, charging the real estate devised with the payment of legacies, it will generally be held to convert the estate devised into a fee. 2 Redf. Wills, 323. While the bequest of $500 to Joseph W. Ross is not specifically charged against the real estate, it is not provided that it shall be paid out of the proceeds of the personal property. Had the personal property been consumed in the payment of debts and expenses, there is little doubt that this legacy would have been a charge on the land. We are of the opinion that the words, "all my property, personal and real, after paying my just debts and claims," found in this will, taken in the connection in which they are found, are sufficient to vest in Martha Ross the fee to the real estate of which her husband, the testator, died seised. It is settled, however, that words in a will which purport to vest a fee may be so modified and limited by other lan guage in the same instrument as to plainly indicate that it was the intention of the testator to vest a life estate, only. But where an estate in fee is devised in one clause of a will, in clear and decisive terms, it cannot be taken away or cut down by raising a doubt upon a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate in fee. Bailey v. Sanger, 108 Ind. 264, 9 N. E. Rep. 159; O'Boyle v. Thomas, 116 Ind. 243, 19 N. E. Rep. 112. In this case, the cause above set out clearly indicates, we think, an intention on the part of the testator to vest in his widow a fee to the land described in the complaint in this case. The will was evident

ly drafted by some one not skilled in such matters, and the real intention of the testator is left in doubt. We cannot say, however, after a careful analysis of this will, that it was the clear intention of the testator, by the provision to the effect that his son Joseph W. Ross should come in as an equal heir with his other children at the death of his wife, to reduce her estate to an estate for life, only. The will does not attempt to vest an estate in any of the children of the testator, except Joseph, nor does it purport to vest in him any interest in the real estate. We are of the opinion, therefore, that this will vested in Martha Ross the fee to the land of which her husband died seised, and for this reasou the circuit court did not err in sustaining a demurrer to the complaint. Judgment affirmed.

(135 Ind. 211)

PITTS v. JACKSON et al. (Supreme Court of Indiana. Oct. 31, 1893.) NOTICE OF PUBLICATION-AFFIDAVIT.

Elliott's Supp. § 1, in relation to notice by publication, permits it when defendant is a nonresident, and the action arises, inter alia, from a duty imposed by law in relation to real estate in the state, or is to try or quiet title to or possession of real estate. Held, that an affidavit for publication in an action to quiet title and declare a tax lien is insuflicient which simply states that the "cause is in relation to real estate situate" in Indiana.

Appeal from circuit court, White county; A. W. Reynolds, Judge.

Bill of review by William S. Jackson and others against Andrew T. Pitts. Decree for complainants. Defendant appeals. Affirmed.

Hartman & Hamelle, for appellant. Sellers & Uhl, for appellees.

COFFEY, J. On the 24th day of February, 1890, the appellant commenced an action in the White county circuit court, against the appellees and others, to quiet title to the land described in the complaint in this case, and for the purpose of having certain taxes paid by him declared a lien on the land. The complaint consisted of two paragraphs, the first being in the ordinary form of a complaint to quiet title. The second paragraph was based upon a tax deed, and prayed that, if such deed was found to be insufficient to convey title, the amount paid by the appellant at the tax sale, and subsequent taxes paid by him, might be ascertained and declared a lien upon the land, and such lien foreclosed. At the time of filing the complaint the appellant also filed, in open court, an affidavit showing that the appellees were nonresidents of the state, upon which the court ordered notice to the appellees by publication. At the ensuing term of court the appellant, after filing proof of publication, obtained a finding of the amount of taxes paid by him, and a decree declaring the same a lien on the land, and ordering the same sold for its payment. This action was brought by the appellees against the appellant to review the proceedings and decree in that

case. The complaint alleges that there is manifest error in such proceedings and decree, in this: that the affidavit upon which publication was ordered and made was not sufficient to warrant such publication, and that the notice issued and published was not sufficient. Omitting the caption and the jurat, the affidavit upon which publication was ordered and made is as follows: "W. H. Hainelle, being duly sworn, upon his oath says that he is one of the attorneys for the plaintiff in the above-entitled cause; that said cause is in relation to real estate situate in White county, Indiana; and that the following named defendants are all necessary parties to said action, to wit, ** and all of said defendants are nonresi dents of the state of Indiana at this time; and further affiant says not."

The statute upon the subject of publication (Elliott's Supp. § 1) provides that the clerk, by order of the court if in session, or in vacation without such order, shall cause notice of the pendency of an action by publication: "Third. Where the defendant is not a resident of the state and the cause of action is founded upon or connected with a contract, or arises from a duty imposed by law, in relation to real estate in this state, or the subject of the action is to enforce or discharge a lien, or to obtain a divorce, or to try and determine, or quiet the title to, or possession of real estate or any interest therein, or to enforce the collection of any demand by proceedings in garnish ment or attachment, or where the object is to obtain a review of a judgment, or to procure a new trial or to set aside a judgment, or enforce satisfaction of a judgment or mortgage, or set aside an entry of satisfaction of a judgment, mortgage or other lien, or to set aside a sale of real estate, or to set aside a return of the sheriff on an execution or other writ."

There having been filed an affidavit for publication, and publication made thereon, which affidavit and publication were adjudged by the White circuit court to be sufficient, the decree rendered by the court on the merits of the cause is not void. Brown v. Goble, 97 Ind. 89; Quarl v. Abbett, 102 Ind. 236, 1 N. E Rep. 476; Hume v. Conduitt, 76 Ind. 598; Muncey v. Joest, 74 Ind. 409; Railway Co. v. Sutton, 130 Ind. 405, 30 N. E. Rep. 291. This, however, is a direct attack upon the decree by way of review; and the question presented is not a question as to whether the decree is void; but the question for our decision is this: Did the court err in adjudging the affidavit sufficient to warrant notice to he given the appellees by publication? It is contended by the appellant that it was sufficient to allege in the affidavit that the action was in relation to real estate, while it is contended by the appellees that, in order to render the affidavit sufficient, it should have been stated therein that the cause of action related to a duty imposed by law in relation to real estate, or that it was to enforce a lien against real estate, or to quiet title to real estate, or some other one of the specific grounds for publication mentioned in the statute. In the case of Hamilton v. Barricklow, 96 Ind.

398, an affidavit for publication similar to the one now before us was held to be suffi. cient; but that ruling was based on section 38, 2 Rev. St. 1876, which is different in some respects from our present statute. That statute provided that publication might be made when an affidavit was filed showing that a canse of action existed against any nonresident defendant who was a necessary party to an action in relation to real estate. The affidavit in the case cited substantially followed the language of the statute then in force. But in the revision of 1881 (Rev. St. 1881, § 318) the general language used in the former statute was omitted, and in its stead the specific grounds for publication are set forth. We cannot say that an action in relation to real estate might not be insti. tuted in which none of the causes for publication named in the statute existed. If such an action should be instituted, of course the defendants thereto could not be notified by publication, for it is by virtue of the statute alone that publication under our practice can be made. We think that under our present statute the affidavit for publication should state some one of the specific causes for publication named in the statute; otherwise, it would be defective. The affidavit and publication should notify the defendant of the nature of the action against him, for it would be unreasonable to hold that a foreclosure could be had on an affidavit and publication stating that the purpose of the suit was to obtain a divorce, or to obtain any relief other than that sought in the complaint. The change made in the statute by the revision of 1881 was doubtless intended to secure to the defendant notice of the nature of the action against him, which cannot be accomplished without stating it in the affidavit and notice. The statute does not contemplate a full statement of the cause of action in the affidavit, but it does contemplate, we think, a statement of the nature of the action, to the end that it may be known whether it is a case in which publication is authorized, and in order that the defendant may be informed as to the nature of suit against which he is required to defend. Field v. Malone, 102 Ind. 251, 1 N. E. Rep. E07. The affidavit before us is defective, we think, in that it fails to state any one of the statutory grounds for publication, and the court, when it adjudged it sufficient and ordered publication issued thereon, erred. For this reason the decree based thereon, while not void and subject to collateral attack, was nevertheless erroneous and subject to review. It fol lows from what we have said that the circuit court of White county did not err in overruling the demurrer of the appellant to the complaint in this case. Judgment affirmed.

(135 Ind. 372) RHODES-BURFORD FURNITURE CO. v. MATTOX et al.1 (Supreme Court of Indiana. Nov. 2, 1893.) JUSTICE'S JUDGMENT-INJUNCTION

1. The fact that a party to an action objected to trying it in justice's court to a jury 1 See 40 N. E. 545. Rehearing denied.

of 12, instead of a legal jury of 6, does not entitle him to enjoin the judgment, since, if the jury was illegal, the trial to such jury was only an error in the proceedings, which could only be corrected by appeal, and did not affect the jurisdiction of the justice. 34 N. E. Rep. 326, affirmed.

2. In an action to enjoin a judgment in justice's court in an action of replevin, of which the justice had jurisdiction, it is immaterial whether a verdict and judgment for damages in favor of defendant therein was erroneous, or even void, as such judgment does not affect the question of jurisdiction.

On rehearing.

MCCABE, J. Appellant asks for a rehearing because, as is claimed, we failed to decide whether the legislature had power to limit the number of jurors in a civil case before a justice of the peace to 6, and failed to say in our opinion whether or not a trial had, over a party's objection and exception, with a jury of 12, instead of 6, as provided by statute, was void, and whether a verdict for damages in favor of a defendant in replevin was void. We expressly held that a trial before a justice of the peace in a civil case, with a jury of 12 instead of 6, was an irregularity, and therefore an error. That plainly implied that we were of opinion that the act referred to, providing for such a trial by a jury of 6, was a valid enactment.

It is not easy to understand what counsel means in the last two points,-wheth. er a trial, had over a party's objection and exception, with a jury of 12 instead of 6, is void or not. This being an attempt to enjoin the judgment for that cause, the question presented was whether the judgment was void or not, and not whether any of the proceedings leading up to the judgment were irregular or void. So long as the irregularity did not deprive the court of jurisdiction over the subject or the parties, its judgment, though the proceedings leading up to it, and the judgment itself, were erroneous, nevertheless, if jurisdiction remained, would not be void. It does the appellant no good, in this case, to show that it objected to a trial by 12 jurors, instead of 6, and took its exceptions. An exception before a justice of the peace is of no avail, because on appeal the whole case is tried de novo, and final judgment rendered in the appellate court without any regard to any error committed upon the trial before the justice. But if prejudicial errors in the proceedings leading up to the judg. ment, or in the judgment itself, before a justice of the peace, have been committed, which do not affect the jurisdiction over the subject or parties, the only remedy is by appeal to a higher court, where the case can be tried de novo, and where, on such trial, such errors can be avoided. If a party against whom such errors may have been committed sees fit not to so appeal from the justice's judgment, he must be deemed to have waived all such errors; and if, instead of so appealing, he seeks to enjoin the judgment, he stands in no better attitude than if he had consented to each and every one of the irregularities complained of. The statute pro

viding for a jury of six also provides that, by consent, a jury may be composed of less than six. We know no reason why the parties might not agree to a jury of more than six. But, even if this is not true, and, notwithstanding such agreeinent, the jury would not be a legal jury, it would amount only to an error in the proceedings, not affecting the jurisdiction. The same is true as to the supposed error or invalidity of the verdict assessing damages in favor of the defendant in replevin. Whether such a verdict is erroneous or not, or even void, it is not material to inquire; and we did not before, and do not now, decide whether such a verdict is proper or not, because it does not affect the question of jurisdiction, and therefore is not before us. If the justice's court had jurisdiction of the subject of the action and the parties,-and we so held in our opinion, and now hold that it had,the intervening errors did not make the judgment void, and unless the judgment was void the suit to enjoin it cannot be maintained. Petition overruled.

(135 Ind. 339)

CITY OF PLYMOUTH v. SCHULTHEIS. (No. 16,384.)

(Supreme Court of Indiana. Nov. 2, 1893.) MUNICIPAL CORPORATIONS-TANNERIES-CITY ORDINANCE-VALIDITY.

A city ordinance making it unlawful to carry on the business of a tannery within one mile of the city limits without a permit from the city council, and which does not define any of the conditions on which tanneries may be conducted or on which such permit shall issue, but leaves the propriety of granting such permit to the uncontrolled discretion of the board of health and common council, is invalid.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

John Schultheis was charged with violating an ordinance of the city of Plymouth relating to tanneries within one mile of the city limits. From a judgment for defendant, the city appeals. Affirmed.

Leopold M. Lauer, for appellant. Charles Kellison, for appellee.

HACKNEY, J. The question for review in this case is the validity of an ordinance of the city of Plymouth, the viola. tion of which is charged against the appellee. The first section of the ordinance declared it to be unlawful, within the limits, or within one mile of the limits, of said city, to carry on the business of tallow chandleries, soap factories, glue factories, slaughterhouses, powder magazines, tanneries, or other hazardous or noxious trade or business, or to erect, construct, or repair any building for any such pur. pose within such limits, without first obtaining a permit or license therefor from the common council of said city, as further provided. By the second section it was ordained that any person desiring to carry on any such business, or to construct or repair any building for any such uses, within the limits prescribed, should first apply in writing to the board of health of said city, describing particu