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[Acts 1903, p. 185. In force March 7, 1903.]
476a. Wabash and Erie canal certificates.-1. That certificates heretofore issued by the general land office and the Department of the Interior of the United States, setting forth the list of lands in the State of Indiana without the strip of five miles on each side of the Wabash and Erie canal, from Terre Haute to Evansville, in the Vincennes land district, selected by the State of Indiana under the provisions of the act of Congress of March 31, 1845, to aid the State of Indiana in extending and completing said canal, now on file in the office of the auditor of state of the State of Indiana, and all copies thereof duly certified to by the Auditor of State of the State of Indiana, and all records of any such certified copies recorded in the recorder's office of any county in the State of Indiana in which any of such lands are situate, and all certified copies made by such county recorder of such record in his office, shall be admissible in evidence in all of the courts of this state in all cases where by law deeds and records, duly made and completed, are legal evidence and shall be conclusive evidence of all matters therein recited.
476b. Copies of deeds.-2. That the copies of all deeds now file in the office of the auditor of state of the state of Indiana, made by the Board of Trustees of the Wabash and Erie canal, in records kept by such Board of Trustees and afterward filed in said auditor's office, and all copies thereof duly certified to by the auditor of said State of Indiana, and all records of such copies thus certified to now or hereafter recorded in the recorder's office in any county of the State of Indiana, in which any of the lands therein described are situated, and all duly certified copies of any such record in such Recorder's office, shall be admissible in evidence in all the courts in this state of all cases where by law deeds and records, duly made and completed, are legal evidence and shall be conclusive evidence of all the matters therein recited.
476c. Recording copies of certificates.-3. That all copies duly certified to by the auditor of state of the state of Indiana of the certificate and list referred to in Section 1 of this act, and of the copies of deeds referred to in section 2 of this act, shall upon presentation be recorded in the recorder's office of any county in this state wherein any of such lands are situate. And such record when made shall have the same force and effect as other records duly authorized and made in such recorder's offices.
483. Affidavits taken in another state.
Affidavits taken and certified by an officer in another state can not be used in the courts of this state for any purpose unless such affidavits are authenticated, as provided by section 483, Burns' R. S. 1901. Jackson v. State, 161 Ind. 36.
486. Writing, execution, evidence.
When the provisions of section 486, Burns' R. S. 1901, are fully complied with, a writing may be read in evidence without proof of its execution although it is not the foundation of the action. Boseker v. Chamberlain, 160 Ind. 114.
489. Process, service, proof, publication.
When necessary to prove the publication of an ordinance, the introduction of a printed copy thereof, together with the requisite affidavit of a competent person as to publication, constitutes sufficient proof. Rowland v. City of Greencastle, 157 Ind. 591.
504. Competent witnesses.
All persons are competent witnesses in civil actions except as otherwise provided by statute. Belledin v. Gooley, 157 Ind. 49; Lake Erie R. R. Co. v. Charman, 161 Ind. 95. The former judge of a court is a competent witness to prove that certain proceedings purporting to have been had in such court were taken after the final adjournment of the court. State v. Hindman, 159 Ind. 586.
505. Incompetent witnesses.
The fact that the administrator of the estate of a decedent, in an action to contest a will, refuses to consent that the physician of the testator may testify as to confidential information received by him concerning the testator, can not be commented upon in argument nor considered by the jury in determinng the case. Brackney v. Fogle, 156 Ind. 535.
In an action to contest a will, the parties can not, over objection, prove by the physician of the testator facts learned by him relating to the mental any physical condition of the testator while discharging his professional duties. Towles v McCurdy, 163 Ind. 12.
Statements made by a patient to a physician as to how, and who, was guilty of committing an abortion upon her person, are not privileged communications when such statements can be separated from privileged communications, Seifert v. State, 160 Ind. 464.
Statements made by a person to a physician, when the physician is not acting in hi professional capacity, are not privileged communications. Seifert v. State, 160 Ind. 464. Conversations between a physician and patient, in the presence of others, are not privileged communications, and such conversations may be proven by persons who heard the same. Mason's Ass'n v. Brockman, 26 App. 182.
In an action to recover damages for personal injuries, the plaintiff can not be compelled to testify on cross-examination to conversations between plaintiff and a physician concerning such injuries. Citizens R. R. Co. v. Shepherd, 30 App. 193.
Statements made by a client to an attorney are privileged communications, and the client can not be compelled to testify to the same over his objections. George v. Hurst, 31 App. 660.
506. Executor or administrator a party, witnesses.
In an action by an administrator, under section 285, Burns' R. S. 1901, to recover damages for the death of a person, the defendant is a competent witness in his own behalf, as a judgment in such an action is not rendered either in favor of or against the estate of the decedent. Lake Erie R. R. Co. v. Charman, 161 Ind. 95.
In an action by an administrator to recover assets belonging to the estate, the heirs or legatees of the decedent are competent witnesses. Michigan Trust Co. v. Probasco, 29 App. 109.
In an action on a note against the estate of a decedent and another person, such other person is not a competent witness to prove the execution of the note by the decedent. Bowen v. O'Hair, 29 App. 466.
In an action by an executor to foreclose a mortgage executed to the testator, the defendants are not competent witnesses on their own behalf to testify as to matters occurring during the lifetime of the testator. Goodwin v. Bentley, 30 App. 477.
507. Heirs, devisees, parties, witnesses.
An action by an administrator to recover assets belonging to the estate he represents is not an action by or against heirs or devisees, and the heirs, legatees or devisees of the decedent are competent witnesses. Michigan Trust Co. v. Probasco, 29 App. 109. The wife of a beneficiary under a will is not a competent witness to prove the execution of the will. Belledin v. Gooley, 157 Ind. 49.
In an action by the heirs of a decedent on a policy of insurance, such heirs are competent witnesses as to the health of the insured at the time of the issuing of the policy. Supreme Lodge v. Andrews, 31 App. 422.
[Acts 1903, p. 100. In force February 27, 1903.]
508a. Insane, parties incompetent.-1. That in all suits by or against any person adjudged to be a person of unsound mind and under guardianship, or against his guardian, founded upon any contract with or demand against said ward; or in any suit to obtain possession of the real or personal property of said ward, or to affect the same in any manner, neither party to said transaction shall be a competent witness to any matter which occurred prior to the appointment of said guardian: Provided, however, That if the party to said transaction, under guardianship, should be adjudged by the court competent to testify, then the other party to said suit shall not be excluded: Provided, further, That the provisions of this act shall not apply to any case where a person has been adjudged to be a person of unsound mind before the taking effect of this act, nor to any contract made or transaction had before the taking effect of this act: Also provided, That in all cases contemplated by this act either party to such suit shall have the right to call and examine any party adverse to him as a witness, or the court may, in its discretion, require any party to such suit or other person to testify, and any abuse of such discretion shall be reviewable on appeal.
509. Husband and wife as witnesses.
The wife of a beneficiary under a will is not a competent witness to prove the execution of the will. Belledin v. Gooley, 157 Ind. 49.
510. Assignor or grantor, parties, witnesses.
If, in an action by an administrator on a note, the maker of the note is not a competent witness, then a person who claims that the decedent transferred the note to him, and that he transferred it to another, is not a competent witness for the defendant. Toner v. Wagner, 158 Ind. 447.
If a party calls as a witness in his behalf an adverse party, who is rendered incom petent by statute, then such party becomes a competent witness for all purposes. Young v. Montgomery, 161 Ind. 68.
515. Impeaching witness by party producing.
Under section 515 of the civil code a party may impeach his own witness by proving statements made out of court in conflict with his testimony, and this section applies to criminal actions. Adams v. State, 156 Ind. 596; Scofield v. Myers, 27 App. 375.
517. Examination of adverse party.
The evidence obtained by the examination of an adverse party, under section 517 of the civil code, can not be used for the purpose of showing that a pleading is false or sham, and should be stricken out. Stars v. Hammersmith, 31 App. 610.
ARTICLE 18.-OFFER BEFORE TRIAL.
522. Offer to allow judgment.
Offer to allow judgment.
A tender and a payment into court of the amount admitted to be due is not a sufficient compliance with section 522 of the code providing for an offer to allow judgment to be taken for a specified sum and costs. Duckwall v. Jones, 156 Ind. 682.
525. Trial of appeals or change of venue cases.
When a cause is appealed to a circuit court, and the appeal papers are filed in vacation, the appeal will stand for trial at the next term of the court, and if such papers are filed in term time the cause will stand for trial on the expiration of ten days after such filing. State v. Sopher, 157 Ind. 360.
531. Special jury.
Whenever there is no regular jury in attendance on court, or such jury is engaged, a special jury may be impaneled under order of the court to try a case. Albany Land Co. v. Rickel, 162 Ind. 222.
When a jury is voluntarily accepted by a party without having exhausted his peremptory challenges, he can not complain of the action of the court in permitting jurors to serve who had served on juries within a year. Indianapolis Ry. Co. v. Bordenchecker, 33 App. 138.
534. Struck jury, notice.
The act of 1891, section 534, Burns' R. S. 1901, attempting to amend the statute of 1881 regulating the selection of struck juries, is unconstitutional because the act sought to be amended is not properly identified. Mankin v. Pennsylvania Co., 160 Ind. 447.
536. Fees of struck jury.
Parties demanding a struck jury are liable for the fees of such jurors, and a county from which a change of venue is taken can not be charged with such fees. Board v. Board, 27 App. 378.
542. Manner and order of trial.
When the court is properly requested to instruct the jury in writing, it is error for the court to read and verbally explain the pleadings to the jury. Woodruff v. Hensley, 26 App. 592.
If instructions to a jury are not made a part of the record by a bill of exceptions, there must be a record entry showing their filing in order to make them a part of the record. Thompson v. Thompson, 156 Ind. 276; Williams v. Chapman, 160 Ind. 130; Moss Tie Co. v. Huff, 32 App. 466.
Instructions given to a jury by the court of its own motion, and not made a part of the record by a bill of exceptions, must be signed by the judge and filed in order to become a part of the record. City of Michigan City v. Phillips, 163 Ind. 449; City of Indianapolis v. Mitchell, 27 App. 589.
Instructions requested to be given to the jury after the beginning of the argument may properly be refused. Duckwall v. Williams, 29 App. 650.
Instructions requested to be given to the jury must be filed, or made a part of the record by order of the court, in order to obtain a consideration thereof on appeal. Chicago Ry. Co. v. Wysor Land Co., 163 Ind. 288.
544. Exceptions to instructions.
In order to make instructions to the jury a part of the record, without an order of court or a bill of exceptions, there must be exceptions to the instructions written on the margin, or at the close thereof, and dated and signed by the judge. Raper v. American Co., 156 Ind. 323; Malott v. Hawkins, 159 Ind. 127; City of Michigan City v. Phillips, 163 Ind. 449; Ayres v. Blevins, 28 App. 101.
[Acts 1903, p. 338. In force April 23, 1903.]
544a. Instructions, practice, exceptions, record.-1. That all instructions requested shall be plainly written and numbered consecutively and signed by the party or his counsel. The court shall indicate, before instructing the jury, by a memorandum in writing at the close of the instructions so requested the numbers of those given and of those refused and such memorandum shall be signed by the judge. All instructions given by the court of its own motion shall be in writing and shall be numbered consecutively and signed by the judge. If the court shall modify any instruction requested, the instruction as