clause being omitted in the act of 1909. Plaintiff |ated the truck under a conditional contract bought a motor truck under a conditional con- of sale by the terms of which a bill of sale tract of sale, a bill of sale to be given when the full price was paid, plaintiff having the unquali- was to be given when the purchase price had fied right of possession and use of the truck until been fully paid. Smith v. Aldrich, 180 Mass. default in payment. Held, that as section 4 of 367, 62 N. E. 381. And until default in paySt. 1909, providing for a distinguishing mark to ment of the promissory notes given as collatbe furnished manufacturers and dealers instead eral security for the performance of the conof registering each vehicle owned or controlled by them, refers only to vehicles remaining in tract, she was given the unqualified right of their possession and under their control, the possession, of use and of management, as word "owner" must be deemed to include a per- if the truck were her own. If strangers, or son in possession of the motor car under a contract for purchase under installments, for even the vendor before condition broken, unotherwise such person would be precluded from lawfully interfered with her possession and using his vehicle on the highway, so plaintiff's use of the truck she could have maintained registration was sufficient.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 55; Dec. Dig. 20.

For other definitions, see Words and Phrases, First and Second Series, Owner.]

an appropriate action to redress the wrong.
Shaw v. Kaler, 106 Mass. 449; Brewster v.
Warner, 136 Mass. 57, 49 Am. Rep. 5; Field v.
Early, 167 Mass. 449, 45 N. E. 917; Field v.
Fletcher, 191 Mass. 494, 496, 78 N. E. 107;

Report from Superior Court, Suffolk Coun- Gamson v. Pritchard, 210 Mass. 296, 96 N. E. ty; W. P. Hall, Judge.

Action by Julia V. Downey against the Bay State Street Railway Company. On report. Judgment for plaintiff on verdict.

John E. Crowley and Jas. E. O'Connell, both of Boston, for plaintiff. Henry F. Hurlburt, Jr., and Abbot P. Mills, both of Boston,

for defendant.

715; Williston on Sales, § 330, and cases cited in notes. The words "person in control thereof" found in the earlier enactments obviously embrace a class of persons who may have no general or special property in the motor vehicle they are operating, while the word "owner" includes not only persons in whom the legal title is vested, but bailees, mortgagees in possession, and vendees under conditional contracts of sale who acquire a BRALEY, J. [1, 2] It is settled that even special property which confers ownership as if the accident could be found to have been between themselves and the general public caused solely by the defendant's negligence, for the purposes of registration. Com. v. the plaintiff cannot recover unless her auto Sherman, 191 Mass. 439, 441, 78 N. E. 98. truck which came into collision with the de- The Legislature moreover could not have infendant's car had been registered. St. 1909, tended that where the purchaser buys a car c. 534, § 10; Dudley v. Northampton St. Ry., the purchase price for which is payable by 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) installments, he cannot use it upon the public 561. The St. of 1909, c. 534, § 2, as amended ways until payment of the last installment, by St. 1912, c. 400, § 1, provides that applica- for until then the legal title remains in the tion for the registration of motor vehicles vendor as the owner who being under no oblimay be made by "the owner thereof" in the gation to do so may refuse to permit regismanner there prescribed, and the report un-tration in his name. But this result must folder which the case is before us states that low if the construction contended for is cora certificate of registration had been issued rect. The provisions of St. 1909, c. 534, § 4, to the plaintiff "as owner." But if the pre-providing for a distinguishing number or sumption of compliance with the statutory re-mark to be furnished to manufacturers and quirements was sufficient until rebutted, the dealers, instead of registering each vehicle defendant contends, that the plaintiff's evi-owned or controlled by them, refers to vehidence of title is insufficient to bring her within the provisions of the statute. Trombley v. Stevens Duryea Co., 206 Mass. 516, 518, 92 N. E. 764. The St. of 1903, c. 473, § 1, St. 1905, c. 311, § 2, St. 1906, c. 412, § 1, St. 1907, c. 580, § 1, and St. 1908, c. 648, § 3, having uniformly provided that registration should be effected by the owner or "person in control thereof," and the St. of 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, having omitted the words "person in control thereof," the defendant contends, that the plaintiff is barred from recovery unless she held the absolute title. The plaintiff bought and oper

cles which remain in their possession and control as manufacturers or dealers, and not to vehicles which have been sold either conditionally or unconditionally, followed by delivery of possession and unrestricted powers of control. The auto truck having been properly registered the validity of the vote of the commission relating to the issuance of registration certificates to lessees, where the name of the person or company actually owning the car is to be stated, need not be determined. It follows that the entry should be judgment for the plaintiff on the verdict. So ordered.

(185 Ind. 638)

SPURLOCK v. STATE. (No. 23089.) (Supreme Court of Indiana, Nov. 29, 1916.) 1. CRIMINAL LAW 1104(4)-APPEAL-RECORD-BILL OF EXCEPTIONS ORIGINAL. Where an original bill of exceptions is embodied in the record, and properly certified to by the clerk of court, it will be treated on appeal as though copied into the record, as directed by statute.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2776; Dec. Dig. 1104(4).] 2. JUDGES 19-JUDGE PRO TEM.-AUTHORITY-OBJECTIONS.

Defendant cannot after conviction for the first time question the authority of one regularly appointed and sworn as judge pro tem., who, acting as such, received the verdict.

[Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 64-67; Dec. Dig. 19.]

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Ind. 146, 48 N. E. 791, it was held that the original instructions embodied in the general bill of exceptions containing the evidence was improperly in the record, and could not be considered on appeal. The rule thus announced has been consistently followed. City of Michigan City v. Phillip, 163 Ind. 449, 71 N. E. 205; Curless v. State, supra, and cases cited; Campbell v. State, 179 Ind. 240, 100 N. E. 755, and cases cited.

A copy of a bill of exceptions transcribed into a record certainly could not import greater accuracy or verity than the original bill if bodily incorporated therein. While the statute requires that the clerk shall transcribe all original papers into the transcript in making the record for appeal, the fact that the clerk, in disregard of the statute, has embodied the original bill of exceptions in the record, should not be regarded a suffi

Robert Spurlock was convicted, and ap- cient reason for refusing to consider it as a peals. Affirmed.

R. M. Coleman, Joseph R. Williams, and Chalmer Schlosser, all of Indianapolis, for appellant. Evan B. Stotsenburg, Atty. Gen., and Omer S. Jackson, Asst. Atty. Gen., for the State.

LAIRY, C. J. [1] All questions except one presented by the assignment of error are waived by the brief. There is an attempt to bring this one question not waived into the record by a special bill of exceptions, and, unless this effort has been successful, no question is presented. The record does not contain a copy of the bill of exceptions in question, but it does contain the original bill as settled and signed by the judge of the trial court.

It has been held by this court that original papers cannot be properly embodied in a record on appeal unless such act is expressly authorized by statute, and that, when such original papers are so embodied without express statutory authority, they will not be considered on appeal as constituting a part of the record. Curless v. State, 172 Ind. 257, 87 N. E. 129, 88 N. E. 339. We have a statute which, as construed by this court, authorized the clerk to embody in the record for appeal the original bill of exceptions containing the longhand report of the evidence and matters directly connected therewith, but the application of this statute has been limited so as to confine it to the single office of exhibiting the report of the evidence and matters directly and properly pertaining thereto; it being held that the rule does not apply to a bill of exceptions by which other matters are sought to be brought into the record. Curless v. State, 172 Ind. 257, 87 N. E. 129, 88 N. E. 339. As early as the case of Reid v. Houston, 49 Ind. 181, it was held that the clerk had no authority to certify an original paper in the absence of express statutory authority. In the case of Leach v. Mattix, 149

part of the record in place of the copy required by the statute. In requiring a transcript of the proceedings to be used on appeal, there can be little doubt that the Legislature contemplated that the original record and all papers filed in the court below should remain under its control and custody; but the refusal of a court of appeal to recognize an original bill of exceptions as constituting a part of the record when such original paper has been embodied therein on appeal does not have the effect of preventing the removal of such paper, nor does it restore it to the files of the proper court. The purpose of a bill of exceptions is to save and present a question of law for decision on appeal which, without such bill, would not be presented by the record. There can be no doubt that this purpose is served as well by the original of such bill when incorporated into the record and properly certified as it could be by a certified copy. A party who seeks to present a ruling of a lower court for review by a court of appeals must show affirmatively by the record that the ruling in question was made over his objection, the nature of which must be shown, and that an exception was reserved. If the record as presented leaves the court in uncertainty, the doubt will be resolved in favor of the ruling of the trial court. However, when an original bill of exceptions is embodied in the record, and properly certified to by the clerk of the court in which it was filed, there can be no doubt as to its authenticity, and it will be treated on appeal the same as though copied into the record. The cases heretofore cited and other cases announcing a contrary rule can not be longer followed, and they are to that extent overruled.

[2] The original bill embodied in the record shows that on the 20th day of January, 1916, James A. Collins, judge of the Marion criminal court, appointed in writing one Harry C. Hendrickson as judge pro tem. of such

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-14

court for the 20th and 21st days of January, I was present on the 20th day of January, 1916, for the reason, as stated, that said 1916, exercising the functions of the judge of Collins would be absent, and that said Hen- the Marion criminal court, and that on the drickson took the oath prescribed by law as same day Harry C. Hendrickson, as judge judge pro tem. of said court. The bill fur- pro tem., exercised judicial functions in the ther shows that on the 20th day of January, same court. It is asserted that the court in 1916, the jury trying the case of State of question is a single court for which only one Indiana v. Robert Spurlock, Appellant, had judge is provided by law, and that it cannot retired to deliberate on its verdict, and that, be so organized as to permit two judges to having agreed on their verdict, the jury was perform judicial functions therein at the brought into open court and returned its ver- same time. It does not appear from the recdict, which was received by said Harry C. ord that there was any attempt by two Hendrickson, presiding as judge pro tem. of judges to perform the judicial functions of said court. the court at the same time. On the contrary, it appears that before Judge Hendrickson took the bench as judge pro tem, the regular elected judge had vacated the bench presumably on account of enforced absence, as shown by the certificate appointing the judge pro tem.

From other parts of the record it appears that appellant entered his plea and was placed on his trial on the 20th day of January, 1916, before the Honorable James Collins, the regular judge of said court, who presided during the time that the evidence | was introduced and gave the instructions to the jury and directed it to retire and deliberate under the charge of a sworn bailiff.

The bill of exceptions does not show that appellant or his attorney made any objection to the reception of the verdict by Hendrickson as judge pro tem, at the time he took the bench as such and received the verdict of the jury, and no exception was taken at the time. There can be no doubt that Hendrickson was regularly appointed and sworn as judge pro tem, and that he was assuming to exercise the functions of judge of the Marion criminal court at the time he received the verdict. Where a person, acting as judge, exercises the functions of a court under color of authority, a person who fails to question such authority at the proper time by objecting to its exercise cannot after a conviction question such authority. Schlungger v. State, 113 Ind. 295, 15 N. E. 269; Smurr v. State, 105 Ind. 125, 4 N. E. 445; Henning v. State, 106 Ind. 386, 6 N. E. 803, 7 N. E. 4, 55 Am. Rep. 756. It is asserted by appellant that judicial power cannot be conferred even by agreement of parties, and it is contended on that ground that no objection was necessary in order to raise such a question. The cases of McClure v. State, 77 Ind. 287, and Herbster v. State, 80 Ind. 484, are cited to sustain appellant's contention. These cases are not in point. In the first case an attorney, without having received any appointment as judge, received the verdict by consent of the parties to the case; and in the second an attorney tried a case by consent of the parties without any appointment from the court and without taking any oath as required by law. In those cases it was held that judicial powers could not be conferred by agreement; but in this case the power was conferred by appointment under authority of law and not by agree ment.

No error is disclosed by the record.
Judgment affirmed.

(185 Ind. 610)

ZINTSMASTER et al. v. GILL, Treasurer,

et al. (No. 22969.)

(Supreme Court of Indiana. Nov. 28, 1916.) RAILROADS 36-SUBSIDY-CONTRACT-DEPENDENT OR INDEPENDENT COVENANTS.

Stipulation in a contract to pay a subsidy, in aid of construction of a railroad, voted in proceedings pursuant to Burns' Ann. St. 1914, § 5464 et seq., and one that the company shall permanently maintain its line to, and its terminals and shops in, a city, are independent, and not dependent, so that, the road, shops, and terminals being located, constructed, and put in operation, obligation to pay the subsidy is not released by insolvency of the road, but enforce ment of the agreement for permanent maintenance, in case of nonobservance, is for a proper proceeding.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 94; Dec. Dig. 36.]

Erwin, J., dissenting.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Daniel W. Zintsmaster and others against George Gill, Treasurer, and others. From an adverse judgment, plainTransferred from the Appeltiffs appeal. late Court under section 1429, Burns' Ann. St. 1914. Affirmed.

D. F. Brooks, of Wabash, for appellants. Burdge H. Hurd, Fred H. Bowers, and Milo N. Feightner, all of Huntington, for appellees.

LAIRY, C. J. Appellants brought this action as taxpayers of Huntington township of Huntington county to enjoin George Gill as treasurer and Harold Guthrie as auditor of Huntington county from collecting a tax of $132.31, levied against their property. It is shown that a tax was levied against all Appellants urge upon the court the consid- of the taxable property of that township for eration of another question. It is claimed the purpose of paying a subsidy voted to the that the record shows that Judge Collins Cincinnati, Bluffton & Chicago Railroad

It is alleged, however, that the Cincinnati, Bluffton & Chicago Railroad Company became insolvent, and was so adjudged by a court, and that a receiver was appointed for said company. The date on which the company was adjudged insolvent and a re

Company, and that the portion assessed | corporation limits of the city of Huntington. against the property of appellants amounted to the sum stated. It appears from the complaint that the railroad company to which the subsidy in question was granted had become insolvent before the complaint in this case was filed, and that a receiver had been appointed who was in charge of its prop-ceiver appointed is not stated in the comerty, operating it under the orders of the plaint which was filed on March 29, 1912, court for the benefit of its creditors. This but it is alleged that said railroad company receiver was made a party defendant, as was was insolvent at the time the complaint was also the railroad company. The trial court filed and had been ever since the date of the sustained a demurrer to the complaint ad- appointment of the receiver, and that durdressed thereto by appellees and, upon ap-ing such time it had been operated by a repellants declining to amend, final judgment was entered against them, from which this appeal is taken. The only error assigned is based on the ruling of the court in sustaining the demurrer.

ceiver for the benefit of its creditors. By reason of the insolvency of the corporation to which the subsidy was granted, it is alleged that it is not now, and will not be in the future, able to maintain and operate its line of road between Portland and Huntington, and that it will be unable to maintain its shops and terminal in accordance with the stipulations and agreements under which such subsidy was granted.

The complaint alleges facts showing that such proceedings were had before the board of commissioners of Huntington county as resulted in an election being held on the 19th day of August, 1906, in Huntington township, that county, at which a vote was had Appellant's position is that the agreement upon the proposition of donating aid to the to pay the subsidy is dependent upon the construction of the Cincinnati, Bluffton & covenant on the part of the railroad comChicago Railroad Company, and of author-pany to maintain its shops and terminals at izing a tax on the property of that town- Huntington and maintain and operate its ship for such purpose. The election result- line of railroad between Portland and Hunted in favor of the granting of the subsidy.ington. If these covenants are dependent, Other facts are alleged, showing that the or if the agreement on the part of the comboard of commissioners in behalf of Hunt-pany to maintain its road, shops, and terington township entered into a written agree- minal was intended as a condition precedent ment with the railroad company, by the upon which depended the obligation to pay terms of which such company agreed, in con- the subsidy, then a failure from whatever sideration of such donation, to permanently cause to keep and perform such agreement maintain its line of railroad from the city would absolve the other contracting party of Portland to the city of Huntington, and from all obligations to pay the subsidy. On to permanently maintain within or adjacent the other hand, if these covenants were into the city limits of Huntington its shops tended to be independent of each other, then and terminals. On behalf of the township the failure to perform by one party would the board of commissioners agreed to collect give rise to a cause of action which might from the taxpayers of Huntington township be enforced in a proper proceeding, but it a sum of money equal to 1 per cent. of the would not have the effect of releasing the value of the taxable property of such town- other party from the obligation to perform ship, and to levy and collect such an addi- independent covenants entered into and to be tional tax on such township as would pro- performed on his part. The distinction beduce a total sum of $98,000, which it agreed tween dependent and independent covenants to collect and pay to the railroad company is well recognized. Gillum v. Dennis (1853) between the 1st day of January and the 1st 4 Ind. 417; 3 Page on Contracts, § 1471, day of May, 1908. and cases cited.

Before entering into this contract the board of commissioners heard evidence, as shown by the complaint, as to the cost of the construction of such terminals and as to the cost of the construction of the railroad within such township and outside of such terminals, and determined that the terms of the petition on which the election was held had been complied with, and that the requirements of law had been fulfilled.

The complaint does not allege that the railroad company did not construct its line of road from the city of Portland to the city of Huntington, or that it did not construct its terminals and shops within or adjacent to the

In so far as the complaint discloses the facts, the proceedings authorizing the subsidy in question were regular in all respects and were conducted in accordance with the statutes of this state on the subject. Section 5464 et seq., Burns 1914.

An examination of these statutes will show that it was the legislative purpose to secure the location and construction of railroads and other structures in connection therewith as required by the petition upon which such donations were to be voted, and to that end it was provided that no donation of money voted should be made by the board of commissioners to a railroad company un