Trout and Another v. Williams.

claim also under the law. It is a sufficient answer to this, that she has repudiated the will, and therefore is only entitled to three hundred dollars worth of personal property as widow, and to share with her children in the remaining four hundred and fifty-two dollars, whereas she has already received that entire sum, and the remaining personal property having been sold to pay debts, and the real estate divided, nothing remains in the hands of the executors. The judgment is reversed, with costs.

J. Brownlee, for appellants.

I. Van Devanter, J. F. McDowell, A. Steele and R. T. St. John, for appellee.

TROUT and Another v. WILLIAMS.

JURORS.-EXAMINATION OF.-On the trial of a eause, in which one of the material issues was whether a partnership had existed between certain persons, the court refused to allow the persons called as jurors to be asked whether they had formed or expressed an opinion as to the exist ence of such a partnership.

Held, that the refusal to allow the question was error.

DEPOSITIONS.-CERTIFICATE.-Where the certificate to depositions, which purported to have been taken before the clerk, was signed in the clerk's name by a deputy, it was held that the taking of the depositions and the making of the certificate must be construed to be the act of the clerk, the deputy simply signing his principal's name by his authority.

APPEAL from the Johnson Common Pleas.

RAY, J.-On the examination of each juror on his voire dire, the appellants, who were the defendants, asked this question:

"State whether, or not, you have formed or expressed an opinion whether Abraham Trout and Levi Trout were partners in the dry goods business, in the town of Lebanon, Boone county, Indiana, during the year last past."

Trout and Another v. Williams.

The court refused to permit this question to be answered and accepted the jurors. This was error. The question went to a material issue in the case, and if the juror had answered in the affirmative, and had not disclosed that such an opinion was formed from mere rumor, and would not disqualify him from deciding upon the evidence alone, such answer would have excluded him from the jury-box. This ruling does not conflict with the decision of Morgan v. Stevenson, 6 Ind. 169. There the examination was permitted, and the juror stated "that his mind was free to decide the case according to the evidence, though he had formed an opinion as to some of the matters in controversy." It is said in that case, that if the party desired to exclude the juror, the examination should have been continued to determine how his opinion had been formed, whether from rumor or from conversation with witnesses or parties, or from prejudice; that inasmuch as his answer stated that his mind was free to act from evidence alone, he could not be rejected at that point of the examination. It cannot be fairly claimed that that decision justified the refusal of the court in this case to permit the testing of the juror's qualification by an examination.

It is assigned as error that the court refused to suppress certain depositions certified to have been taken before the clerk of Boone county, in accordance with proper notice, because the certificate, although made in the name of the clerk, was signed in his name, "per L. Lane, deputy." We think the taking of the depositions and the making of the certificate must be construed as the act of the clerk, the deputy simply signing the name of the clerk by his authority. There was no error.

There were exceptions taken to the refusal of the court to permit certain questions to be asked on the trial, but as we see no error in the ruling of the court in this matter, we will not discuss these assignments, as the case must be reversed.

Errors are also assigned upon instructions said to have

Stuckmyer . The State.

been refused, and others said to have been given. What the nature of these instructions were, counsel have not considered it of sufficient importance to inform us in their abstract, and in deference to their judgment we limit our labors by their own.

The judgment is reversed, with costs, and the cause remanded.

S. P. Oyler and D. W. Howe, for appellants.
D. D. Banta and C. Byfield, for appellee.

STUCKMYER V. THE STATE.

ATTEMPT TO PROVOKE ASSAULT.-An affidavit for an attempt to provoke an assault and battery charged that the defendant on, &c., at, &c., did, "by words, signs and gestures, attempt to provoke A to commit an assault and battery upon him, said B."

Held, that the offense was well charged in the affidavit.

APPEAL from the Marion Criminal Circuit Court. FRAZER, C. J.-This was a prosecution under the act of 1865 (Spec. Ses., p. 165.) It was commenced before the city judge of Indianapolis. The only question is as to the sufficiency of the affidavit. It alleged that the appellant did, "on, &c., at, &c., by words, signs and gestures, attempt to provoke Jacob Riffle to commit an assault and battery upon him, said Stuckmyer."

It is objected, 1, that the words, signs and gestures are not stated or described. 2. That the assault and battery is not formally and legally described. Some authorities are cited as supporting these objections, but they seem to us not to be at all in point, and we do not therefore dwell upon them.

The Adams Express Company v. Reagan.

Upon the first question, it seems to be regarded by the books as settled, that when the offense consists in inciting or attempting to incite another to do an act, it is sufficient to aver the fact generally, without specifying the words or describing the acts employed. So are all the precedents. Arch. Crim. Pl. 681; Whart. Prec. 599, et seq.; Davis Prec. 219; Com. v. Feely, 2 Va. Cases 1.

The second objection appears to be equally without support. The point has been expressly ruled the other way. People v. Pettit, 3 Johns. 511.

The judgment is affirmed, with costs.

E. W. Kimball, for appellant.

D. E. Williamson, Attorney General, for the State.

THE ADAMS EXPRESS COMPANY . REAGAN.

COMMON CARRIERS.-If a common carrier may limit his liability by an ex-
press contract, the limitation must be reasonable in itself, and not such
as to operate as a snare or fraud upon the public.
SAME.—Where a package was shipped from Clayton, in this State, to Savan-
nah, Georgia, during the war, when transportation was much interrupted,
it was held that a condition that the carrier should not be liable for any
loss, unless a claim therefor was presented within thirty days after the
shipment at Clayton, was void.

APPEAL from the Marion Civil Circuit Court.

GREGORY, J.-The appellee was the plaintiff below. He sued upon an express receipt, which was made a part of his complaint, and is as follows:

"ADAMS EXPRESS COMPANY.

[Form 14.]

"Great Eastern, Western and Southern Express Forwarders.

"CLAYTON, INDIANA, January 24th, 1865.

"Received of A. S. Wills, one carpet valise, containing clothing; value, one hundred and seventy-five dollars,

29 21 126 130

The Adams Express Company v. Reagan.

marked Maj. Z. S. Reagan, Savannah, Georgia, in good order, which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. It is part of the consideration of this contract, and it is agreed, that said express company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said express company entrusted, or arising from the dangers of railroads, ocean or river navigation, steam, fire in stores, depots, or in transit, leakage, breakage, or from any cause whatever, unless, in every case, the same be proved to have occurred from fraud or gross negligence of said express company or their servants; nor, in any event, shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in this receipt, which receipt shall constitute the limit of the liability of the Adams Express Company. And if the same is entrusted or delivered to any other express company or agent, (which said Adams Express Company are hereby authorized to do,) such company or person so selected shall be recognized exclusively as the agent of the shipper or owner, and, as such, alone liable, and the Adams Express Company shall not be, in any event, responsible for the negligence or non-performance of any such company or person; nor, in any event, shall said express company be liable for any loss or damage, unless the claim therefor shall be presented to them at this office, within thirty days after this date, in a statement to which this receipt shall be annexed.

"All articles of glass, or contained in glass, or any of a fragile nature, will be taken at shippers' risk only, and the shipper agrees that the company shall not be held responsible for any injury by breakage or otherwise, nor for damages to goods not properly packed and received for trans