tration board's session, before he asserted the temporary injunction, and notice directed to iscontrary theory of the law. sue to defendants of the time and place of such [2-4] In Parvin v. Wimberg, supra, an elec-hearing, and, before the date so fixed, on defendants' motion the order was dissolved, the tion contest case, this court referred to the dissolving order was not appealable under subpre-election report of a committee on the division 17 of section 1392, Burns' Ann. St. interpretation of the then new Australian 1914, allowing appeals from interlocutory orders dissolving temporary injunctions, although ballot law of 1889, and said: the order used the words "temporary injunc tion," and the judge dissolving it described it as a "restraining order" or "temporary injunc tion," since, being issued without notice, it was a mere restraining order.

"This construction having been accepted and acted upon by the officers whose duty it was to administer the law, the courts should not now ignore it, unless it is palpably wrong."

[Ed. Note. For other cases, see Appeal_and Error, Cent. Dig. §§ 670, 671, 675-679; Dec. Dig. 100(2).

For other definitions, see Words and Phrases, First and Second Series, Restraining Order; Temporary Injunction.]

Appeal from Circuit Court, Hancock County; Earl Sample, Judge.

Action by Benjamin F. Mason and others

against Harry J. Milligan and others. From an order dissolving a temporary restraining order, plaintiffs appeal. Dismissed.

John B. Hinchman, of Greenfield, Henry A. Lee, of Bloomington, and E. E. McFerren, of Indianapolis, for appellants. J. J. Daniels, of Indianapolis, for appellees.

We cannot say that the auditor's decision, following the interpretation of the committee, was so palpably wrong as to warrant interference therewith by the extraordinary process of mandate, especially where first invoked after the registration period has ended. Indeed, we are of the opinion that as the law invests the county auditor with the primary duty of determining the question of the necessity of a complete new registration, such determination, even if erroneous, if acted on in good faith by the proper election officers, cannot be assailed by mandate after the registration period has ended; and in this case, had the county auditor determined that a complete registration was unnecessary, notwithstanding the destruction of the pollbooks, and had a supplemental ERWIN, J. Action was brought by appelregistration only been held, we are of the lants, in the superior court of Marion counopinion that, after the end of the registration ty, against appellee Milligan, for damages period, no voter of the precinct could have for the wrongful conversion of certain propbeen heard in a claim that complete regis-erty, and to enjoin the delivery of a deed of tration was necessary. In every precinct of conveyance by appellee Jones, as sheriff of the state there was a registration in October, Monroe county, Ind., which the complaint the character of which, whether supplemental or complete, was indicated by the auditor's notice. Officers and voters acted accordingly, and, after October 10th, there could have been no further registration, and the voter's rights in the several precincts must be viewed in the light of the character of registration, whether complete or supplemental, that was actually held. Otherwise hopeless confusion would result. We are of the opinion, under the facts pleaded, that relator, having failed to register where complete registration was required by the auditor's notice, is not entitled to have his name placed on the registration records.

Judgment reversed, with instructions to overrule the demurrer to appellant's answer.

SPENCER, J., not voting.

(185 Ind. 319)

MASON et al. v. MILLIGAN et al. (No. 23124.)

(Supreme Court of Indiana. Nov. 9, 1916.) APPEAL AND ERROR 100(2)-DECISIONS REVIEWABLE INTERLOCUTORY ORDER "RESTRAINING ORDER"-"TEMPORARY INJUNCTION."

Where, upon filing of a complaint, a temporary restraining order was issued in conformity with the allegations and prayer of the complaint, without hearing or notice, a time fixed! for the hearing of plaintiffs' application for

alleges was about to be delivered by said sheriff to his codefendant and appellee Milligan in conformity to the terms and conditions of a certain certificate of sale, issued by said sheriff to said Milligan on a sale on a certain judgment, obtained by said Milligan against appellants in the Morgan circuit court.

Upon filing of the complaint a temporary order was issued by the court, in conformity with the allegations and prayer of the complaint, without hearing or notice, and a time was then fixed, by the court, for the hearing of the application for a temporary injunction, and directing a notice to issue for appellees of the time and place for such hearing. Before the date fixed for the hearing and before the maturity of the notice, appellees appeared and filed a motion to dissolve the order theretofore made. In the order of the court heretofore referred to, the words "temporary injunction" were used.

The venue of the cause was afterwards changed to the circuit court of Hancock county, where, after due consideration of said motion to dissolve the order theretofore issued, the judge of said court dissolved the "restraining order" or "temporary injunction." From this action of the court, appellants appealed to this court.

Appellees have here moved to dismiss this appeal, on the grounds that no appeal will lie

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

from an order of the circuit court dissolv- Appeal from Circuit Court, Harrison Couning a temporary restraining order; contend- ty; Wm. J. Ridley, Judge.

ing that the order issued by the court was Abraham Harper was convicted of rape, only a restraining order, notwithstanding and he appeals. Reversed, with instructions that the same was designated by the court, to sustain motion for new trial.

and by the parties in the record and pleadC. W. Cook, G. K. Gwartney, and M. W. ings, as a "temporary injunction." Appel- Funk, all of Corydon, W. F. Avery, of Palmylants contend that by designating the order ra, and J. H. Weathers, of New Albany, for "temporary injunction," that the same was appellant. Thomas S. Jones and William such, and was so considered by the court and Habermel, both of Corydon, Evan B. Stotsenthe parties, and that from an order dissolving burg, Atty. Gen., Charles T. Brown, of Engthe same an appeal will lie to this court, un-lish, and Sam P. Vogt and R. S. Kirkham, der subdivision 17 of section 1392, Burns 1914. both of Corydon, for the State.

The proper decision of the question involved depends upon whether the order issued. was in fact a temporary restraining order or a temporary injunction. This court having had under consideration the same question in another case, said:

LAIRY, J. Appellant prosecutes this appeal from a judgment of the trial court convicting him of the crime of rape committed upon a feeble-minded woman. The only error upon which the appellant relies is the action "The infallible distinction between a tempora- of the trial court in denying his motion for a ry restraining order and a temporary injunction is that the former issues without notice on a new trial. Several causes are embodied in showing of emergency, and the latter issues the motion, but all are waived, except the only after notice and hearing." Terre Haute one based on newly discovered evidence. & Logansport Ry. Co. v. St. Joseph, South Bend & Southern R. R. Co. et al., 155 Ind. 27, [1] For the purpose of presenting the ques30, 57 N. E. 530, 532. tion involved some facts may be stated about Governed by the rule as stated above, the which there is no controversy. It is not conorder of the court was a temporary restrain-troverted that Eva Mosier, the ing order, and not a temporary injunction, and no appeal lies to this court; there having been no disposition by the court or ruling made on the application for a temporary injunction, the same is still pending before the circuit court for consideration. An interlocutory order dissolving a temporary restraining order is unappealable. Terre Haute, etc., Ry. Co. v. S. Bend, etc., R. R. Co.,

woman

against whom the crime was committed, was so feeble-minded as to be incapable of giving consent, that she was never married, and that in the month of October, 1914, she gave birth to a bastard child, which died before Christmas. Proof of her imbecility and the birth of the child under the circumstances stated clearly established the commission of the offense of rape by some person. The corpus delicti having been established, it remained only to fix the responsibility of the crime. For the purpose of fixing the crime on the defendant, Eva Mosier testified that Abraham Harper had sexual intercourse with her a number of times in the woods near a schoolhouse, and the time was fixed in the fall and winter preceding the birth of the child. She also testified that no other person than the defendant ever had carnal knowledge of her. He denied that he had ever had any sexual relations with her.

The newly discovered evidence upon which appellant sought to obtain a new trial consists of the testimony of two witnesses, Noble C. Hurn and Levi C. Hurn. As shown by the affidavit of appellant and the separate affidavits of the proposed witnesses, they will both testify that on the second Sunday in January, 1914, they were passing an old vacant house which stood back some distance from the road, and which was known as the old Dean house, and that they saw a pair of jennies hitched near the house. Being thus attracted they went quietly to the house and, looking through a window, saw Elba Foutz and Eva Mosier on the floor in the act of sexual intercourse. Elba Foutz was a witness in the case, and gave testimony of a nature very damaging to defendant.

The state's attorney asserts that this evi- question and to present it at the first trial dence, if produced at another trial, would be was not due to a lack of diligence on the incompetent, and that the trial court prop- part of the defendant. erly refused to grant a new trial for this

reason.

The judgment is reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

(186 Ind. 374) HOLLON V. STATE. (No. 23105.)* (Supreme Court of Indiana. Nov. 10, 1916.) 1. INTOXICATING LIQUORS 152-SALE BY

DRUGGISTS-NECESSITY OF LICENSE.

To avail himself of the exception of Burns' Ann. St. 1914, § 8351, in favor of licensed druga license from the state board of pharmacy, gists, in sale of liquors, a druggist must secure without which, for unlawful sale, he may be prosecuted under such section, rather than sections 8349, 8352, which apply regardless of license.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 161, 165, 167; Dec. Dig. 152.]

CRIMINAL LAW 1122(5)—APPEAL-BILL OF EXCEPTIONS-INSTRUCTIONS.

[2, 3] If the defendant, knowing the mental condition of Eva Mosier, had carnal knowledge of her, he is guilty of the offense charged against him, and it would be no excuse or justification of his act to show that other persons had committed a similar offense against her. In this case, however, it was shown that she was pregnant, and this was a circumstance which, unexplained, tended strongly to incriminate the defendant. The fact that she was pregnant and was delivered of a child fully developed in October, 1914, clearly shows that some person had sexual relations with her some time about the month of January of that year. She testified that she had never had such relations with any one except defendant, and this fact, if true, when considered in connection with her preg-2. nancy, clearly established his guilt. He denied that he had ever had any such relations in a criminal case cannot be considered, unwith her, but the fact of her pregnancy tended strongly to corroborate her testimony. The defendant had a right to prove any fact which would explain or account for her pregnant condition on a theory consistent with his innocence. If there had been no proof of pregnancy, this evidence would not have been competent, but it was competent to explain this incriminating circumstance and for no other purpose. The evidence is proper for the consideration of the jury, in connection with all the other evidence, in determining whether the defendant did have carnal intercourse with the feeble-minded woman as charged in the indictment; but, if that fact is legally established, it can be of no importance that other persons had been guilty of a similar offense, or that another was the father of the child with which she was pregnant.

Bills of exceptions to refusal of instructions less they affirmatively show that they contain all the instructions given, since, if they do not, it must be presumed that others were given Icovering the substance of those requested.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2943; Dec. Dig. 1122(5).] Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Henry Hollon was convicted of an offense, and he appeals. Affirmed.

Alvin Padgett and Benjamin J. Burris, both of Washington, Ind., and Henry Carpenter, of Petersburg, for appellant. Evan B. Stotsenburg, Atty. Gen., Thos. H. Branaman, of Brownstown, and Stanley M. Krieg, of Petersburg, for the State.

SPENCER, J. [1] Appeal from a judgment of conviction based on an affidavit which charges appellant with keeping, runThe exact question here involved has never ning, and operating a place where intoxicatbefore been presented to this court, but de- ing liquors were unlawfully sold. In support cisions of other states support the conclu- of his assertion that the verdict of the jury sion reached in this opinion. People v. Fla-is contrary both to law and to the evidence herty, 79 Hun, 48, 29 N. Y. Supp. 641; Bice given at the trial, appellant contends that, as v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; a retail druggist, even though unlicensed as People v. Currie, 14 Cal. App. 67, 111 Pac. 108; Kanert v. State, 92 Neb. 14, 137 N. W.

975.

The Attorney General has cited a number of cases from this state to sustain the proposition that the evidence in question is incompetent. Lovell v. State, 12 Ind. 18; Wilson v. State, 16 Ind. 392; Richie v. State, 58 Ind. 355; Heath v. State, 173 Ind. 296, 90 N. E. 310, 21 Ann. Cas. 1056.

An examination of these cases will show that they are not in point as to the question directly involved in this case.

The facts disclosed by the affidavit show that his failure to discover the evidence in

such, he is not liable to prosecution under section 8351, Burns 1914, on which the affidavit is based; that a druggist who sells intoxicating liquors unlawfully may be prosecuted under either section 8349 or section

8352, Burns 1914, and under no other law. Section 8351, supra, provides, in part, that:

"Any person who shall keep, run or operate a place where intoxicating liquors are sold, bartered or given away in violation of the laws of the state * shall be • ⚫ guilty

of a misdemeanor," etc.

It provides further:

"That none of the provisions of this section is licensed as such by the state board of pharshall apply to any druggist or pharmacist who macy."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

2. ATTORNEY AND CLIENT 128-COMPENSATION-ACTION-QUESTION FOR JURY.

In suit by client for money collected, which defendant claimed was retained by him as a reasonable attorney's fee with plaintiff's consent, the question of amount due was for the jury.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 274-283; Dec. Dig. 128.]

3. APPEAL AND ERROR

1001(1)-REVIEW

In the case of State v. Cameron, 176 Ind. I pecially where the record shows that the par385, 96 N. E. 150, this court passed on sub- ties themselves proceeded on such theory. stantially the same question which is now [Ed. Note.-For other cases, see Appeal and presented for consideration, and held, in ef- Error, Cent. Dig. §§ 1056-1061; Dec. Dig. 171(3).] fect, that although a druggist need not take out a license in order lawfully to deal in certain articles of trade, yet he must be licens ed by the state board of pharmacy before he may sell intoxicating liquors or operate a place where the same are sold in any quantity under the exception contained in the statute above quoted. It is true that in the case of Shank v. State, 183 Ind. 298, at page 304, 108 N. E. 521, at page 523, we noted that reference to section 8349, Burns 1914, was inadvertently omitted from the statement in State v. Cameron, supra, that, "sections 8351, 8352, supra, cover the whole subject of sales of intoxicating liquors by druggists," but the correction thus made in no way served to disapprove the holding in the Cameron Case, and, on a present review of the question in issue, we are satisfied with the conclusions therein reached. Appellant makes no contention that, in this view of the case, the evidence is insufficient to sustain his conviction.

QUESTIONS OF FACT. Where there is some evidence to support the verdict, that is sufficient on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. 1001(1).]

4. AccOUNT STATED 1 AGREEMENT OF

PARTIES.

Before there can be an account stated, there must have been prior dealings between the parties, and after examination by each of all the items, they must have mutually agreed upon the items, and that the balance struck is just and due from the party against whom it is stated.

1.]

1-NATURE OF "Ac

[Ed. Note.-For other cases, see Account Stat[2] Certain questions are sought to be pre-ed, Cent. Dig. §§ 1-8; Dec. Dig. sented as to instructions given and refused, 5. ACCOUNT STATED COUNT STATED." but it does not appear from the bill of exAn account stated amounts to more than an ceptions containing such instructions wheth- admission of an amount due, and is a new cause er it contains all of the instructions in the of action. case. As said in State v. Winstandley, 151 Ind. 495, at page 496, 51 N. E. 1054:

"When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384 [22 N. E. 320]. In such case the presumption is that the substance of the instructions asked was embraced in the instructions given by the court, which are not contained in the bill of exceptions, and that, if any instructions given by the court, and set out in the bill of exceptions, are erroneous, they were corrected or withdrawn by other instructions - given by the court, and not set forth in the record."

We may not, therefore, consider the instructions given and refused, but it is sufficient to note that our conclusions above stated serve to dispose of the principal questions thus sought to be presented.

[Ed. Note.-For other cases, see Account Stated, Cent. Dig. §§ 1-8; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Account Stated.] 6. AccOUNT STATED 19(3) PRESUMPTION.

--

- EVIDENCE

In the absence of express agreement, the receipt and retention of a statement of account amounts to no more than prima facie proof of agreement upon a balance.

[Ed. Note.-For other cases, see Account Stated, Cent. Dig. § 93; Dec. Dig. 19(3).] Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Tirza B. Brash against William Bosson. From judgment for plaintiff, defendant appeals. Affirmed.

William Bosson, of Indianapolis, in pro. per. William W. Lowry, of Indianapolis, for appellee.

FELT, J. This is a suit to recover money

No error appearing, the judgment of the alleged to be due appellee from appellant. trial court is affirmed.

(63 Ind. App. 86)

BOSSON v. BRASH. (No. 9141.)

The complaint was in four paragraphs. The first was for money had and received. The second paragraph alleges, in substance, that on January 11, 1908, appellant received from William Lowe Rice, receiver, $3,441.63 be

(Appellate Court of Indiana, Division No. 1. longing to appellee, and then and there Nov. 9, 1916.)

1. APPEAL AND ERROR 171(3)-PRESENTATION OF OBJECTIONS-THEORY OF CAUSEPLEADINGS.

A theory of the pleadings adopted by the trial court will be adhered to on appeal, whereever the pleadings from their plain terms are susceptible of such construction and theory, es

agreed to pay the same to her; that before bringing this suit, on July 27, 1910, appellee demanded payment of said sum from appellant, and payment was by him refused. The third paragraph avers that appellant, a practicing attorney, was employed by appellee to collect for her certain promissory notes;

that he collected thereon $3,441.63 on Jan- The pleadings and records of the trial susuary 11, 1908, and on January 16, 1908, paid tain the appellee's contention as to the appellee the sum of $2,306.90, and retained theory of the pleadings and the theory on $1,135.73 as attorney's fees; that on July which the case was tried below. 27, 1910, appellee demanded from appellant the sum of $719.75, and payment was refused; that 10 per cent. of the amount collected was a reasonable fee for appellant's services; that the amount retained by him was exorbitant and unreasonable. The fourth para-is susceptible of such construction and theory. graph is substantially like the third, except it is alleged the notes provided for 5 per cent. attorney's fees, and appellant agreed to accept that amount in payment for his services.