Volume 1 — Indiana Law Reporter

<p>Appeal from Marion Superior Court.</p>

<p>Appeal from Cass.</p>

<p>Action to set Aside Fraudulent Conveyance—Pleading by Complainant.—In such action by a creditor, the complaint must allege that at the time of the execution of the conveyance, there was no other property, subject to execution, sufficient for the payment of all the debts of the grantor then existing. The allegation that the grantor “owned no property of any consequence” is altogether uncertain and insufficient.</p>

<p>1. Mechanic’s Lien—Charging Separate Estate of Married Woman—Intent—Husband as Agent.—An intent to change the separate estate of a married woman , is not necessary where her husband as her agent places a house on her land, as to the enforcement of a mechanic’s lien thereon.</p> <p>2. Motion in arrest of fudgment where there are several Plaintiffs.—Such a motion, in such a case is like a joint demurrer and must he wholly overruled or wholly sustained. If either of the plaintifls joined together in such motion has stated sufficient facts, the motion will be overruled as to all.</p>

<p>Rights of Adjoining Proprietors as to Drainage.—The owner of an upper field may not construct drains or excavations so as to form new channels on to a lower field, nor can he collect the water of several channels and discharge it upon the lower field, so as to increase the wash upon it. The right of the owner of the upper field to make drains on his own land is restricted to such as are required by good husbandry, and the proper improvement of the surface of the ground, and as may be discharged into natural channels without inflicting injury on the lower field.</p>

<p>1. Recottrse of the Indorsee of a Promissory Note ana Mortgage against the Indor-serfor a Loss by Usury.—Where the maker of a promissory note secured by mortgage sets up the plea of usury, successfully, in an action by an indorsee to foreclose the mortgage and obtain a personal judgment on the note, the indoriee may recover the loss from the indorser, in a subsequent suit.</p> <p>2. Notice to the Indorser.—In such case, if the indorser is notified of the pen-dency of the first suit, and of the plea of usury set up therein, the subsequent action against him for the loss may be brought without further notice of the result in the first suit.</p> <p>3. Directing a Verdict.—Where uncontradicted evidence clearly makes out a plaintiff's case, the court may properly direct the jury to find for him.</p>

<p>1. Setting Aside Fraudulent Conveyance—Pleading.—In such action by creditors the complaint must show affirmatively a complete right to resort to the land conveyed for satisfaction of the debt. This cannot be unless the conveyance was fraudulent, when made, as against creditors, and unless the right of action which then arose is shown to continue to exist , at the time of instituting the suit. If, however, execution has been had against the debtor and due return of nulla bona thereon has been made, and suit he brought within a reasonable time thereafter, it is sufficient to aver the fact of Such judgment, execution and return.</p> <p>2. Objection must be Made in the Trial Court. —Counsel must stand by their record as they make it; and, on a question of the admissibility of evidence, cannot make objections, for the first time, in the Supreme Court.</p> <p>3. Declaration of Husband where He aud his Wife are Joint Defendants.—In such case, a declaration of the husband may be given in evidence, though not made in her presence, and be good as against him, although not good as against her.</p> <p>4. Motion jor Nero Trial.—The grounds stated in such motion will alone be considered by the court. It must be determined on its recitals, and not on matters extrinsic thereto.</p>

<p>Misrepresentations in Selling Partnership Interest.—Where an action is brought for a misrepresentation, in the sale of a partnership interest, in which no question was made or suggested as to the general value of the business, but only as to the liabilities of the firm, and the solvency of debtors, it is no answer to say that the purchaser obtained in addition to the stock of goods and the claims something more in the shape of good will. The question simply is whether the purchaaser got what he expressly bargained for.</p>

<p>Action by assignee against the maker of a promissory note. Answer, that the as-signee had notice of fraud in the procuring of the note by the original payee.</p> <p>1. Actual Notice of Fraud to Purchaser, before Maturity, of a Promissory Note.— While it is the general rule that the indorsee of a note payable in a bank in this State,’ before maturity, in good faith, and without notice, will take the note, free from all equities and defenses existing between the maker and payee; yet where such indorsee has actual notice of such defenses he takes subject to them.</p> <p>2. Evidence of an Indorsement as to Consideration.—Prima facie an indorsement is, as a general rule, evidence of a valuable consideration. But when a note has been procured by fraud, the general presumption of value paid is rebutted; and the assignee must prove that he paid value.</p> <p>3. Order of Presenting Evidence—Discretion of Court.—In general, a party may present his proof, in any order, subject, however, to the discretion of the trial court. And the ruling of a court thereon, is not a basis for the reversal of a cause.</p>

<p>1. A Justice of the Peace cannot set aside a Valid Verdict—The plain and positive duty of a Justice of the Peace, where there is a valid verdict rendered in a prosecution before him for a misdemeanor, is, to enter judgment thereon; the statute gives him no power to set aside such verdict; and he cannot set up his “legal judgment and conscience against the supreme law of the land.” This applies to all judges, but especially to Justices of the Peace.</p> <p>2. Number of Jurors.—A verdict rendered by a jury composed of six persons, in such case, is a nullity, and a Justice cannot be compelled by mandamus to render a judgment thereon.</p>

<p>Appeal from Cass.</p>

<p>1. Vacating Judgments at Law—Power of Courts.—The statute concerning the review of judgments, does not mean that judgments shall only be vacated upon the grounds therein designated, or only in the mode there prescribed to the exclusion of all other modes. Courts must and do posssss other powers than those expressly conferred by Statute. And the code does not profess to strip the courts of the powers incident to courts of equity.</p> <p>2. Vacating Judgments obtained by Fraud—Epuity Jurisdiction.—The power and right of courts of equity to set aside judgments procured by fraud, has been exercised for many years. Although the right was once doubted, it has lorg been unquestioned; and the power has often been exercised by the courts of this State.</p> <p>3. Purview of the Code—Limitation.—It is evident that the article of the code concerning reviews ofjudgments, is intended to apply to cases where a re-examination or re-consideration of the proceedings is necessary, in order to give adequate and just relief, and does not apply to cases where relief is sought on the ground of fraud in obtaining the judgment. And so the record needs not to be incorporated into the complaint in such case. Nor does the limitation of three years apply in such case. (Quick v. Goodwin, 19 Ind., 442 disapproved.) The code did not mean to enlarge the scope of a bill of review, under the old chancery practice, but did mean to provide substantially the same remedy. Courts of equity relieved against judgments obtained by fraud, not by bill of review, but by injunction.</p> <p>4. Fraud by Violating Stipulation in Agreement of Compromiee.—Such a violation is of itself such a fraud, as entitles a party against whom the judgment is rendered to equitable relief.</p>

<p>Appeal from Dearborn.</p>

<p>STATEMENT.</p> <p>Herein the appellee, an unmarried woman, sued the appellant for seducing her; and obtained a verdict for $1,000. The appellee was the principal witness, and testified in substance, as follows: In June 1875, she went to reside in Champaign, Illinois, and engaged as a seamstress and dressmaker. There, in September 1376, she became acquainted with appellant, frhen she was under twenty years of age, he being introduced to her by a mutual acquaintance. They were afterwards engaged to be married and indulged improper intimacies frequently; which coutinued until September 1877. Then'they came together to Indianapolis, and registered at the Sherman House, as husband and wife, and occupied the same room. She expected him to marry her, and that they would remove to Kansas the next spring. From Indianapolis, he went to Louisville, Ky., leaving her some money after having paid her hotel bill; and she went to her father’s near Noblesville, Ind. In October 1877, they again met, at Crawfordsville, where still farther improper intimacies occurred; in January 1878, they met at Covington; Ind., for the last time; and from their intimacy there, a miscarriage resulted. On cross examination, she admitted that when she first became acquainted with him, she was the mother of an illegitimate child, three or four years old; that she was living there under an assumed name and representing herself as a married woman living apart from her husband; that appellant furnished her money, from time to time; and that their early intimacies had resulted in a miscarriage in the spriug of 1877.</p> <p>Lex Loci as to Statutory Remedies. Held, that although the code of this State allows an unmarried woman to maintain an action for her own seduction, yet this remedy, being purely statutory, and not existing at common law, has no extra-territorial force, and does not authorize an action in this State for acts of seduction committed in another State, even if such acts are continued in this State as consequential to the original act of seduction occurring previously in another State. Comity between States only enforces such rights as are recognized as existing by the general usage of civilized nations, or rights at common law.</p>

<p>Appeal from Hancock.</p>

<p>Prosecution by Information and Affidavit.—The common law mode of prosecution for felony is by indictment; and where a prosecution is instituted by information and affidavit, the facts authorizing that mode must appear not only in the information, but also in the affidavit.</p>

<p>Appeal from Delaware Circuit Court.</p>

<p>Appeal from Clay.</p>

<p>Appeal from Grant.</p>

<p>1. Appointment of Attorney as Special Judge.—The act allowing such an appointment is constitutional.</p> <p>2 Presumption as to Action of Trial Court.—The presumption as to the action of a trial court is that of correctness, upon a question as to whether a party had the opportunity in personal presence to confer with his counsel, or was hindered by sickness, etc., or whether he could have availed himself, at any time, of the opportunity.</p> <p>3. Presumption as to Instructions.—"Where instructions are not in the record it will be presumed that they were such as to prevent any misapplication of the evidence by the jury.</p> <p>4. Statute of Limitations.—Circumstances of concealment considered by the court.</p>

<p>Appeal from Franklin.</p>

<p>Appeal from Carroll.</p>

<p>1. Appeal by One Not a Party. Where one is interested financially in a judgment rendered, in like manner as if he had been a formal party in the suit, he can appeal although not named in the judgment.</p> <p>2. Waiver in the Supreme Court. ¡Submitting a cause, by agreement, on an assignment of error as made waives all objection to the assignment.</p> <p>3. Principal and Agent. When a factor sells goods in his own name, without notice to the purchaser that he is not the principal, the latter may sue the purchaser for the price of the goods, though the agent might sue therefor in the absence of any claim by the principal.</p>

<p>Defense of Negligence in a Suit by an Attorney for Compensation.—"Where, in a suit involving the sufficiency of articles of association, such articles are declared insufficient, and afterwards the attorney who drew up such articles sues for compensation, the answer must aver directly that such articles were defective, and must aver that the work for which the plaintiff sues is that which the association had employed him to do.</p>

<p>Appeal from Gibson.</p>

<p>Appeal from Orange.</p>

<p>Appeal from Monroe.</p>

<p>Appeal from Posey.</p>

<p>1. Pleading- Former Judgment.—A plea of former adjudication needs not to contain a transcript of the former judgment, and if it does, such transcript cannot be considered a part of the plea.</p> <p>2. Questions of Fact in the Supreme Court.—The Supreme Court cannot try a questiou of fact by the briefs of counsel as evidence, and especially for the purpose of reaching a conclusion as to the sufficiency of an answer to withstand a demurrer; which admits the facts to he true exactly as pleaded. If counsel do not wish to abide by the facts as stated, they should not demur, but reply, and thus put the facts in issue. Whether a point in issue was formerly adjudicated is a question of fact) and on demurrer, the court cannot look beyond the pleading demurred to, as to such question of fact.</p>

<p>Appeal from Cass.</p>

<p>Appeal from Clinton.</p>

<p>Time of Taking Exceptions.—The statute imperatively requires an exception to be taken at the time of the ruling, although time may be granted for reducing the exception to writing.</p>

<p>Set off under Statute of Limitations.—A set-off or payment is not subject to the statute of limitations.</p>

<p>Appeal from Daviess.</p> <p>cited Graham & W. on New Trials, 1048; Humphreys v. Klick, 49 Ind. 190; Bains v. Ballou, 57 Ind. 79, as to admissions of party in regard to cumulative evidence.</p>

<p>I. New Trial on Newly Discovered Evidence—Appeal.—The decision of a lower court will not be reviewed, in refusing to grant a new trial on the ground of newly discovered evidence, unless the evidence on which the cause was decided is presented by the record.</p>

<p>Appeal from Hendricks.</p> <p>cited 25 Ind. 453; 55 Ind. 201; McDonald’s Treatise, p. 394; Bishop on Contracts, §§ 519— 520, as to statute of frauds.</p>

<p>Statute—Construction of Saving Clause. •—The statute of 1879 provides, that: “All laws upon the subject of embezzlement now in force are hereby repealed; Providedr That all prosecutions now pending under the law as it now is, and all offenses already committed, may be prosecuted under the law now in force.” Held, thap this refers to the previous existing statute upon the subject of embezzlement.</p>

cited Swighart v. State, 67 Ind. 287; Keiser v. Lewis, 57 Ind. 431, as to disqualification of jurors. cited as to bills of exception McGehee v. State, 52 Ala. 224; Busbee, N. C. 436; upon the point that a prisoner must exhaust his peremptory challenges before he can object to the qualifications of one whom he might have challenged. Brown v. State (present term); 9 Geiger, 184; 3 Humph. 315; 4 Humph. 278; 3 Heisk. 468; 5 S. C. 429; 10 Rich.

cited Sexton v. Sexton, 35 Ind. 88, 92, as to effect of statute of limitations upon a judgment, or merged cause of action; Laval et al. v. Rowley, 17 Ind. 36, as to remedy of surety, satisfying a judgment without trying the question of suretyship, and distinguishes the case from this; Story on Partnership, §139, p. 318 (3d ed.) and p. 202; Hubbell et al. v. Wolf et al., 15 Ind. 204, as to partnership and individual obligations; 23 Ind. 272, 534; 25 Ind. 90, 376; 27 Ind. 323;…

<p>Appeal from Clinton.</p>

cited 4 Blkf. 185; 6 Blkf. 356, as to seal of notary public’s acts; 57 Ind. 408, as to acknowledg-incut and record of mortgage; Hawkins et al. v. Hawkins, Adm’r., 28 Ind. 66, as to return of summons.

<p>Appeal from Allen.</p> <p>cited Lane et al. v. Taylor et al., 40 Ind. 497, as to assignment of error on the question of jurisdiction; Scraper et al. v. Pipes et al., 59 Ind. 158; Coyner v. Boyd et al., 55 Ind. 166; Hays v. Parish et al., 52 Ind., as to appeals in highway cases; Lake Erie etc. R. R. Co. v. Heath, 9 Ind. 558, as to right to demand a jury ; Scraper et al. v. Pipes et al., as to presumption in regard to the filing of an affidavit; Robinson v. Commissioners, 37 Ind. 335, as to meaning of the phrase “party to the proceeding”; Shoemaker, Auditor v. Commissioners, 36 Ind. 175, as to who may appeal; Scraper et al v. Pipes et al. supra, as to presumption of service, and effect of want of service; Molihan v. State, 30 Ind. 266, as to mode of taking appeal, and as to the purpose of a summons; Arbuckle et al. v. McCoy, 53 Ind. 63; Carr v. Eaton, 42 Ind. 386, as to making motion for a new trial because of a refusal to continue for service; Jelly v. Coff et al., 56 Ind. 336, as to waiving objection to jurisdiction; Buskirk’s Prac. pp. 276, 278, and cases cited, as to sufficiency of affidavit; Lane v. Taylor, 40 Ind. 495; Vaster v. Gilliland, 55 Ind. 275, as to objection to jurisdiction raised in the supreme court; Little v. Thompson, 24 Ind. 146; Crossley v. O’Brien, 24 Ind. 326; Shute v. Decker, 51 Ind. 241; Vandever v. Garshwiller, 63 Ind. 185, as to jurisdictional facts; Grossly v. O’Brien, supra; Commissioners v. Maride, 46 Ind. 98; Sessions v. Crunkillan, 20 Ohio St. 349; Miller v. Greham, 17 Ohio St. 1; Ferris v. Bramble, 5 Ohio St. 109; 4 N. Y. 440, as to what the record must show; Scraper v. Pipes, 59 Ind. 158, as to description of the course of a highway ; McVay v. Heavernal, 30 Ind. 101; 46 Ind. 301, as to sufficiency of bond; Combs v. Etter, 49 Ind. 535; Sells v. Seinel, 62 Ind. 253, as to what must be shown concerning the qualifications of viewers; Vaw-ter v. Gilliland, 55 Ind. 278; Hughes v. Sellers, 34 Ind. 337, as to initials and as to notice; Single v. State, 24 Ind. 28, as to definitions of “ subject ” and “ matters ” ; McKinney v. Bowman, 58 Ind. 88; Bates v. Sheets, 64 Ind. 209, as to public utility, etc.; also State v. Young, 47 Ind. 150.</p>

cited Bump on Composition in Bankruptcy p. 20 and cases there collected; National Bank v. Porter, 122 Mass. 308; Gould v. Butler, 122 Mass. 500, as to effect of not fulfilling composition agreement. (in reply) cited, Melhado v. Watson, L. R. 2 C. P. Div. 281; Bump on Comp. 18; Woolsey v. Hagan, 124 Mass. 497, as to disputing a creditor’s claim and yet compounding for it; Ex parte Peacock L. R. 8, Ch. 686 ; In re.

<p>Appeal from Cass Superior Court.</p> <p>cited Cones v. Rymon, 9 Ind. 277, as to right of new trial on new evidence.</p>

<p>Nuisance.—In a prosecution for criminal nuisance, the affidavit and information, or the indictment should show that the nuisance was to the injury of some portion of the citizens of the State. Nor is a general conclusion that it is to the great injury, etc., of all the citizens of the State sufficient.</p>

<p>Appeal from Clark Circuit Court.</p> <p>cited Gilbert v. Plant, 18 Ind. 308, as to contract by a married woman.</p>

<p>Appeal from Whitley Circuit Court.</p> <p>(Appellant’s brief not found.)</p>

cited 57 Ind. 480; 46 Ind. 438; Hamilton v. Naylor (November 24, 1880), as to sixty days’notice; City of Crawfordsville v. Barr (May 27, 1879), as to sufficiency of notice; Ogg v. Tote, 52 Ind. 159, as to authority of contractor to «rect the building, shown by the notice; Hill v. Braden, 54 Ind. 73, as to notice showing credit to be given on account of the building.

cited Jooelyn v. Barritt, 18 Ind. 128; Beddinger v. Jocelyn, 18 Ind. 326; Test v. Small, 21 Ind. 127; Cook’s Adm’r v. Gibson, 21 Ind. 303, as to venue in replevin; Beard v. Beard, 30 Ind. 171; Julian v. Beall, 34 Ind. 372, as to obligation of lower court to follow the rule laid down by the Supreme Court; Nesbit v. Beavy, 37 Ind. 300; Smith v. Jeffries, 25 Ind. 376; Stout v. Chapman, 29 Ind. 142, as to waiver of objection to personal jurisdiction. cited Jocelyn v. Barritt, 18…

<p>Appeal from Shelby Circuit Court.</p> <p>cited Spaulding v. Baldwin, 31 Ind. 378; Montgomery v. Gorrell, 51 Ind. 309; Brown v. State, 44 Ind. 222, as to filing copies with the answer; Armstrong v. JBerreman, 13 Ind. 422; Busing v. Busing, 25 Ind. 63; Lindsay v. Lindsay, 47 Ind. 383; Dale v. Bartley, 58 Ind. 101; Mclntire v. Cross, 3 Ind. 444; Doe v. Lanius, 3 Ind. 441, as to widow’s claim under a will. In reply, they review a portion of appellant’s citations infra.</p> <p>cited Cameron v. Warbritton, 9 Ind. 351; Bales v. Weddle, 14 Ind. 349; Lash v. Perry, 19 Ind. 322; Bray v. Hussey, 24 Ind. 228; Van Schwiek v. Farrow, 25 Ind. 310; Clegg v. Patterson, 32 Ind. 135; Hertman v. Sehuek, 40 Ind. 93; Jagers v. Jagers, 49 Ind. 428; Armstrong v. McLaughlin, 49 Ind. 370, as to filing copy with pleading ; Redfield on Wills, p. 433; 2 Blackf. 72; 8 Blackf. 388 ; 2 Ind. 449; 13 Ind. 413; 17 Ind. 68; 25 Ind. 95; 26 Ind. 511; 30 Ind. 39; 33 Ind. 96; 39 Ind. 58; 48 Ind. 300, as to construction of wills with regard to the intention of the testator; Armstrong v. Berreman, 13 Ind. 422, as to widow’s election.</p>

cited Dawson v. Coffman, 28 Ind. 223, as to the modification of the English law of waste in this country; also Washburn on Real Prop. §6, p. 609; also Wheeler v. Me-shing-go-me-sia, Ind. — 405; Story’s Eq. p. 559, note 3, 11, and Drown v. Smith, 52 Me. 141; 33 Ill. 212; Adams’ Eq.

cited Baugh v. State, 14 Ind. 29; Whitney v. State, 35 Ind. 503, as to sufficiency of averment in the information ; Brooster v. State, 15 Ind. 191, as to officer’s signature ; Jomer v. State, Nov-term, 1880, as to distinction between “ object” and “except.”

<p>Partnership—Ratification of Sale of Interest. — It is an elementary rule that a third perron can not, by buying the interest of one partner, become a member of the firm, unless all the partners consent; and so the act of such purchaser can not bind the firm, unless the other partners know of the purchase and retain the money paid, after such knowledge, in the common fund, thereby constituting him a member of the firm. But even if money is taken into the common fund, this will not be a ratification so far as the other partners are ignorant of the contract. Where there is no express notice, ratification can not go beyond an adoption of the acts of an agent assuming to represent the firm to the extent fairly and reasonably implied from the nature of the transaction; and so a,mere receiving of a purchaser of a partner’s interest into the firm by taking his money into the common fund, does not ratify a guaranty of perfect title, free from all liens, made to the purchaser by the seller.</p>

<p>i. Cross-Complaint in Suit by an Administrator. —Where an administrator brings suit, and the defendant files a cross-complaint to recover notes actually held by the administrator, as such, the cross-complaint will be held to charge him as adminis. trator, although it inay name him only as an individual.</p> <p>2.i Instruction.—A harmless instruction will not reverse a cause, even if erroneous.</p> <p>3. Personal Judgment against an Administrator.—In a suit by an administrator, no personal judgment can be rendered against him on a cross-complaint seeking the recovery of notes held by him as administrator. In such case no claim against him, personally, can constitute a proper counter-claim.</p>

<p>1. Sales of Real Estate and Personal Property by Administrators and Guardians. — The statute requires all real estate sales to be reported to the court for confirmation. And so, as to private sales of personal property, while there is no such express provision, yet the court ordering such sale may, under its general jurisdiction over decedents’ estates, and in the exercise of a sound discretion, refuse to confirm it if it appears a substantial advance on the price reported can be had by vacating the sale and ordering a resale. Until a confirmation, the purchaser can acquire no vested right.</p> <p>2. Jurisdiction of Circuit Court.—The court of common pleas had original and exclusive jurisdiction of all matters relating to the settlement and distribution of decedents’ estates; and since that court is abolished, the circuit courts have been ■clothed with the same jurisdiction.</p>

<p>Appellate Jurisdiction of the Circuit Courts.—When appeals from inferior courts are authorized and no express direction is otherwise given, the circuit courts necessarily take cognizance of such appeals by virtue of their general appellate jurisdiction. And this rule authorizes appeals theieto from the common council of a city, on a question of damages in laying out streets.</p>

<p>Appeal from Wayne Circuit Court.</p> <p>cited Woodburn v. Garter, 50 Ind. 377; Hamilton v. Winterrowd, 43 Ind. 393; Jarvis v. Hyatt, 43 Ind. 163; Crosby v. Wyatt, 10 N. H. 318; N. H. Savings Bank v. Colend, 15 N. H. 119, as to what constitutes an extension of time of payment by receiving interest, so as to release a surety; Dickerson v. Board, etc., 6 Ind, 128, 134; Menifer v. Clark, 35 Ind. 306; 2 Lead. Cases in Eq. 1908, to the effect that length of time is immaterial; Brandt on Suretyship, § 79, as to protection of surety.</p> <p>cited Dix v. Akens, 30 Ind. 431; Bradley v. Bradley, 45 Ind. 67; Barnes v. Rcemer, 39 Ind. 589 ; Rosebaum v. McThomas, 34. Ind. 331; Kent v. Lawson, 12 Ind. 675; City of Indianapolis v. Parker, 31 Ind, 230; Walpole’s Adm’r v. Carlisle, 32 Ind. 415, as to necessity of objecting in the trial court; Martin v. Davis, 21 Iowa, 535; Wait’s Actions and Defenses, vol. 6, p. 619, par. 5, and vol. 5, p. 354, as to property in custody of court; 39 Ind. 376; 40 Ind. 253; 29 Ind. 158, 418; 15 Ind. 308; 26 Ind. 324 ; 41 Ind. 186 ; 45 Ind. 86, as to trying question of suretyship, and its effect on creditor’s rights; Keaton v. Cox, 26 Ga. 162; Battle v. Stephens, 32 Ga. 25; Fuller v. Boring, 42 Me. 481; Kendrick v. Price, 16 Tex. 254; Brown v. Brown, 17 Ind. 475; Laval v. Rowley, 17 Ind. 36; Campbell v. Cates, 17 Ind 126; 15 Ind. 308; Brandt on Suretyship, par. 82, as to liability of surety before present code, 2 R. S. 1876, §§ 674, 675, 680, and explained these sections; and cited herein Gregg v. Wilson, 50 Ind. 490 ; Fetrow v. Wiseman, 40 Ind. 148 ; Johnson v. Meier, 62 Ind. 98.</p>

cited Binará v. West, 48 Ind. 160; C. R. & Ft. Wayne R. R. Co, v. Heaston, 43 Ind. 172; Leonard v. Blair, 59 Ind. 511, as to the right of proceeding against heirs to collect a claim ; Stephen on Pleading, p. 378, as to the presumption that an estate is still in course of administration; Hartman v. Lee, 30 Ind. 281; Ratcliff v. Lening, 30 Ind. 289; C. R. & Ft.

<p>Appeal from Carroll Circuit Court.</p> <p>cited 2 Ind. Stat., p. 170, § 334, as to right of polling jury.</p> <p>cited Spalding v. Myers (April 3, 1879), as to sufficiency of complaint; also Price v. Saunders, 60 Ind. 310.</p>

<p>Appeal from Grant Circuit Court.</p> <p>distinguished Newberry v. Detroit, etc., R. R. Co. 17 Mich 171.</p>

<p>1. Exemption in Commutation Cases.—There is no exemption of property from execution in a case of commutation for highway labor, and so the usual exemption laws can not be considered in determining whether a defendant is too poor to pay the commutation.</p> <p>2. Exemption from Laboring on Highways.—-This is effected only by a certificate from the township trustees, according to the statute. 3. Dismissal of Appeal.—Where the amount in controversy, exclusive of in terest and costs, does not exceed fifty dollars, an appeal must be dismissed.</p>

<p>Estoppel to Deny Corporate Existence.—Where there is an attempt to create a corporation under a statute, and an assertion and exercise of corporate powers, one who enters into a contract therewith can not deny the right to corporate existence: in order to annul his contract. The corporate right in such case can only be litigated in a direct proceeding in the name of the State.</p>

<p>1. Pleading—Waiver of Replication.—Going to trial without a replication waives the replication, and upon a trial the matter of the answer is deemed controverted as upon a denial.</p> <p>2. Arrest of Judgment.—A motion of arrest will be overruled if too broad j</p>

cited (per Mr. Pierce) Redman v. Deputy, 28 Ind. 338 ; Calvin v. Wiggin, 27 Ind. 489; Cross v. Wood, 30 Ind. 378; Jarvis v. Hyatt, 43 Ind. 165; Pierce v. Goldsberry, 31 Ind. 52, as to the discharge of a surety by an agreement of forbearance on the consideration of a payment of interest in advance; Rees v. Berrington, 2 Vesey Jr. 540; Huffman v. TIulbert, 15 Wend. 377 ; Rathbone v. Warren, 10 Johns. 587; Miller v. McConn, 7 Paige, 452, as to the rule of discharging sureties…

<p>Appeal from Clark Circuit Court.</p>

cited Bonnell v. State, 64 Ind. 506; Clifford v. State, 56 Ind 245; Keller v. State, 51 Ind.

<p>Appeal from Harrison Circuit Court.</p> <p>cited Davis v. State, 35 Ind. 496; Ryan v. Harrow, 27 Iowa, 494; People v. Douglas, 4 Cowen, 26; Brant v. Fowler, 7 Cowen 562; 16 N. H. 139; 13 Tex. 168; Pelham v. Page, 6 Ark. 535, as to misconduct of jurors.</p>

cited Redden v. Town of Covington, 29 Ind. 118, as to jurisdiction of circuit courts; City of Greensburg v. Corwin, 58 Ind. 518, as to an action under an ordinance being a civil action; Turner v. Cook, 36' Ind. 129, to the effect that a demurrer for want of sufficient facts does not reach a failure to verify a pleading required to be under oath.

cited Aiken v. Bruen, 21 Ind. 137, as to sale on foreclosure; Fishli v. Fishli, 1 'Blaekf. 361, as to res adjudieata, herein; Flanders v. O’Brien, 46 Ind. 284; Busenbarke v. Ramey, 53 Ind. 499, as to protection by want of notice.

Leonard v. Bates, 1 Blackf. 172, as to averment that plaintiff had offered to convey, or had conveyed, real estate before suing for the purchase money; Bundy v. Hall, 60 Ind. 171, to the effect that an insufficient answer to an insufficient complaint, is not liable to objection. cited Goodal v. Mopley, 45 Ind. 355, and code, §380, as to motion to make complaint more specific in the trial court; also, Harding v. Presbyterian Church, 20 Ind. 71; List v. Korpeter, 26 Ind. 27 ;…

<p>Appeal from Grant Circuit Court.</p> <p>cited Scraper v. Pipes, 59 Ind. 158, as to certainty of description; DeLong v. Schimmel, 58 Ind. 64; Farmer v. Pauley, 50 Ind. 583, as to effect of the word “about;” McKinsey v. Bowman, 58 Ind. 88, as to “necessity;” Western Plank Road Co. v. Stockton, 7 Ind. 500; Becker v. Turnpike Co. (May 12, 1879), as to distinction between route and termini; DeLong v. Schimmel, 58 Ind. 64; Farmer v. Pauley, 50 Ind. 583; Scraper v. Pipes, 59 Ind. 164-5; Spahr v. Schofield (May 16, 1879), as to description of course and termini; Banister v. Grassy Fork Ditching Co., 52 Ind. 181-2, as to requisites of reviewers’ report.</p> <p>Baker v. Horsey, 21 Ind. 246; Hessing v. Rosenthal, 62 Ind. 79, to the effect that the form of a judgment must be objected to in the trial court; Comer v. Himes, 49 Ind. 482, as to special findings.</p>

<p>1. Accuracy of Dates in Pleading—Specific Order.—Where an answer shows that a lien occurred in a certain year, and the plaintiff desires it to show also the month and the day, he must apply for an order requiring the defendant to make the answer more specific, as in other cases.</p> <p>2. Notice or Advertisement—Pleading.—Where a notice or an advertisement is not in any proper sense the foundation of an answer or paragraph, it is not necessary to make a copy thereof a part of the answer.</p> <p>3. Requisites of Notice of Sale under a Livery Lien.—Where the value is ten dollars or more, there must be a notice of the time and place of sale given for three successive weeks in a newspaper of the county, if there is any; and does not need to be given otherwise. But an invalid sale does not divest the lien as between the livery man and the owner.</p>

distinguished Coffin v. McClure, 23 Ind. 358, as to answers as evidence in such cases; Pursell v. Pappenheimer, 11 Ind. 327, as to construction of statute. cited Coffn v. McClure, 23 Ind. 358, as to the object of supplementary proceedings, and proceedings therein; cases cited in 2 Davis’ Dig., p. 1139, sub-title 442; Iglehart’s Plead, and Prac., p. 16, sub. 23, as to taking undisputed allegations as true; 62 Ind. 345, as to charging moneys in commissioner’s hands; 2 Davis’…

referred to Taylor v. LeviS. Stochwell (last term), and to former brief in Wasson v. Binford, on the questions involved. cited Edwards v. Keazy, 6 Cent. L. Journal, 391; Kelly v. Strange, 3 Bank. Reg. 2; Schobry v. Gibson, 17 Md. 572, to the effect that the act of 1875 is unconstitutional and void so far as it is intended to apply to prior existing contracts.

<p>Appeal from Grant Circnit Court.</p>

cited Stevens v. Hauser, 39 N. Y. —; Bump on Bankr. (7 ed.), p. 151; Rorer on Judicial Sales, 70, to the effect that bankrupt sales are judicial sales.

cited Jarman on Wills (8th rule); Lutz v. Lutz, 2 Blackf. 72, note 1; Miller v. Adkinson, 32 Ind. 433 ; McAllister v. Butter-field, 31 Ind. 25, as to extrinsic evidence to change the terms of a will. Redfield on Wills, 572; Heady, ex’r. v. State, 60 Ind. 316, as to erroneous construction of will. Judy v. Williams, 2 Ind. 449; Grimes’ ex’rs. v. Harmon, 35 Ind. 198, as to explaining intention of testator.

<p>1. Contract of a Married Woman Executed Before ker Marriage.—The statute provides for and authorizes a personal judgment against a married woman upon her contract made before her marriage, to be levied of her property only, then owned or thereafter acquired by her.</p> <p>2. Second Coverture.—Where real estate has descended to a woman by virtue of her marriage with a deceased husband, and such woman subsequently marries again, the real estate so held by her cannot be levied upon and sold on execution against her during her subsequent coverture.</p>

cited McLaughlin v. State, 45 Ind. 338; Landringham v. State, 49 Ind. 186, as to requisites of charge in an indictment; Todd v. State, 31 Ind. 518, as to crime of false pretenses; 2 Wheeler’s Crim.

explained Work v. Brayton, 5 Ind. 396, as to notice by possession, and also on same point Glidewell v. Spaugh, 26 Ind. 319, and 63 Ind. 583, considered as overruling Work v. Brayton, and cited Pell v. McElroy, 36 Cal. 268, on same point; Flanders v. O’Brien, 46 Ind. 284; Busen-bork v. Ramsey, 53 Ind. 499; Wainwright, Adm’r, v. Flanders, 64 Ind. 306, distinguished as to purchasers of a judgment, and on this point cited Orete v. Jennings, 8 Blkf. 425; Downer v. Bank, 39 Vt.…

in reply, cited Clarkson v. McCarty, 5 Blackf. 574, as to arrest after demurrer; 30 Ind. 380; 47 Ind. 580; 30 Ind. 398; Buskirk’s Prac. 264, as to the rule concerning motions in arrest; 15 Ind. 395; 25 Ind. 31, as to enforcing contracts partly void; 4 Ind. 417 and 521; 10 Ind. 321; 11 Ind. 273, as to construing contracts according .to the intention of the parties. cited 7 Ind. 717; 46 Ind. 427; 52 Ind. 125, as to Statute of Frauds; Hyer v. Norton, 26 Ind. 274, as to…

cited statutes as to special interrogatories; Bellefontaine R. R. Co. v. Hunter, 33 Ind. 336; St. Louis, etc,., R. R. Co. v. Mathias, 50 Ind. 66, as to necessity of precaution on approaching a railroad track; also, Cincinnati, etc., R. R. Co., 54 Ind. 197, on same point; Shanks v. Albert, 47 Ind. 461; Graham v. Castor, 55 Ind. 559; Penn. Co. v. Sinclair, Admr. (Nov. term, 1878, Ind.); Grand Rapids, etc., R. R. Co. v. Boyd (Ind.

<p>Appeal from Grant Circuit Court.</p> <p>cited, Graham v. Crockett, 18 Ind. 119, as to demand in replevin; and also Douch v. Rahner, 61 Ind. 64, on same point; Mason v. Weston, 29 Ind. 561; Potter v. Earnest, 45 Ind. 416; McCarnanv. Cochran, 57 Ind. 166, 169, 170, that a reference is not an averment.</p>

<p>1. Liability of Surety on an Official Bond.—The undertaking of such surety-must be strictly construed, and cannot be extended beyond the period of time provided for by the bond, and so it does not extend to acts done after the expiration of the term of office-</p> <p>2. Allegatio7i as to Continuance of the Term.—So where a bond is to continue one year, or “ until a successor is elected and qualified,” it must be alleged that a successor had not been elected and qualified when the act performed after the term of one year had closed, was done.</p> <p>3. Presumption as to Election and Qualification.—The presumption is that at the us.ual time of an election—of which the court will take judicial notice—an election was duly held and a successor was elected and qualified in the usual manner. And this presumption must be negatived in a suit on the bond for an act done after the usual time of such election and qualification.</p>

<p>Pleading in a Suit on an Injunction Bond.— Variance.—A copy of the injunction bond must be filed in order to make the complaint good, but a copy of the record of the injunction suit ought not to be filed, and if it is so its contents will not be considered, no matter now widely the averments of the complaint may vary from it.</p> <p>Herein, also, held that there was no variance between the allegation of the complaint and the restraining order of the court.</p>

<p>Appeal from Warrick Circuit Court.</p>

cited 53 Ind. 280-285, to the effect that a promissory note not governed by the law merchant is not a payment without an express stipulation; 1 Rev. Stat. 1876, § 6, p. 636; 53 Ind. 438, as to what notes are governed by the law merchant; 67 Ind. 246; 64 Ind. 431; 53 Ind. 474; 51 Ind. 124; 45 Ind. 300, as to discharge of a surety on a promissory note by extension of time; Douglass v. State ex ret., as to the doctrine applied to bonds; also, 11 Wend. 312; 30 N. Y. 474,- on…

cited, 36 Ind. 490; 58 Ind. 29; 56 Ind. 545; Buskirk’s Practice, 89, 171, to the effect that where a complaint is amended and refiled the original is superseded thereby and a demurrer to the original does not apply to the amended complaint unless again filed to it especially; Buskirk’s Practice, 171, 172; 1 Blkf. 12; 5 Blkf. 575; 14 Ind. 304; 41 Indi 489; 47 Ind. 580; 48 Ind. 37; 52 Ind. 382, that where an objection is made in the Supreme Court for the first time as to a…

<p>Appeal from Marion Superior Court.</p>

<p>Bastardy,—A child begotten before but born after marriage is not a bastard; and where a prosecution for bastardy is pending and the parties marry, it is a suíh» cient answer to set up the marriage of the defendant with the relatrix.</p>

cited Burrell’s Law Dictionary, vol. 1, p. 584, as to execution of a will before witnesses; Parsons on Bills and Notes (2 ed.), vol. 1, p. 51, as to escrow; Purrin v. Royal, 42 Ind. 132; Parsons on Contr., vol. 2 (5th ed.), pp. 527-529, and note, and cases cited, as to damages on failure of performance of condition in promissory note; Prairie, ete., Go. v. Laylor, 69 Ill. 440, as to such condition being an independent undertaking. cited Linderman v. Rosenthal, 67 Ind. 247;…

cited 25 Ind. 479; 2 Hen. & Mun. 173; Hill, on Vendors, p. 316, as to presumption of mistake from differences between actual and estimated quantity of land in a deed, as also 3 Bibb. 46; 5 T. B. Mon. 216; 1 Ired. 299, on same point. cited Hitton v. Martin, 52 Ind. 529; Walker v. Woolen, 54 Mo. 164, that a record must show that a bill of exceptions was filed within the time.

<p>cited Gleno v. Porter, 49 Ind. 500; Kimbles. Christie, 55 Ind. 140, as to excuse for want of diligence; Seeright v. Fletcher, 6 Blackf. 380; May v. Johnson, 3 Ind. 449; Cronk v. Cale, 10 Ind. 485; Rogers v. Place, 29 Ind. 557; Strough v. Gear, 48 Ind. 100 ; Nebeker v. Cutsinger, 48 Ind. 436; Steele v. Moore, 54 Ind. 52; Kimble v. Christie, 55 Ind. 140; Douglas v. Matting, 29 la. 498; Chapman v. Rose, 56 N. Y. 137; Abbott v. Rose, 65 Me. 194; Shirts v. Overjohn, Cent. L. J. 1875; Cornell v. Nebeker, 58 -Ind. 425, and cases cited, as to a note signed without reading, which has passed into the hands of a bona fide holder ; Tidd Pr. 865, Buller’s Nisi Prius, 313; Daugherty v. Campbell, 1 Blackf. 39; Lindley v. Kelly, 42 Ind. 294, as to demurrer to evidence, and the duty of the court in relation thereto; Lindley v. Kelly, supra, as to joining in such demurrer; 1 Sand. PI. and Ev., 1102,1103; Tidd Prac., 861; Strough v. Gear, 48 Ind. 102, that the dourt may then determine on the whole evidence for whom judgment should be rendered; Andrews v. Hammond, 8 Blkf. 540; Griggs v. Seely, 8 Ind. 249, as to reasonable construction of the evidence against the plaintiff on such demurrer; Spilled v. James, 32 Ind., 202, and cases cited as to defenses against a promissory note ; 2 G. & H., § 80, p. 105, as to calling in question the execution of a written instrument; XJnthank v. Turnpike Co., 6 Ind. 125; Hoefgen v. Harrison, 7 Ind. 594, as to same point; Phelan v. Morris, 17 P. F. Smith, 59; Goddard v. Haddan, Id. 82; Chapman v. Rose, 56 N. Y. 137; Neb-eker v. Cutsinger, 48 Ind. 436; Cornell v. Nebeker, 58 Ind. 425, as to alteration.</p>

<p>This case is decided by reference to Ruddle v. Thalor, and Woollen v. Whit-acre, supra.</p>

cited Gardner v. Stover, 43 Ind. 356, as to dismissing appeal for want of a brief by appellant; State ex ret. v. Delano, 34 Ind. 52, as to dismissing appeal for want of full names of parties in assignment of errors; 2 Greenleaf, Title Trespass, §§ 625, 626, as to proving ownership of real estate under a general denial in an action of trespass; also, 2 Davis p. 252, § 596, as to same point; 2 Davis, p. 168, §§ 325, 326, as to how a charge of the court must be evidenced on…

<p>1. Lien of a Mortgage—Merger.—While a mortgage is merged in a judgment of foreclosure as a cause of action, such judgment does not abridge or extinguish the lien of the mortgage. The whole theory of merger is that the greater estate or thing takes into itself the less, and this cannot be so where there are essential particulars in which the one alleged to be the inferior is really superior. And besides, mergers are not favored when they would produce injustice. As the lien of a mortgage is specific, while the lien of a judgment is general, the former is the superior.</p> <p>2. Suit to Revive Decree of Foreclosure—Statute of Limitations.—Where suit is brought to revive a decree of foreclosure on two mortgages, one of which is barred by the Statute of Limitations, the statute does not need to be pleaded, because the complaint necessarily brings up the question whether there is an actually existing lien or not.</p> <p>3. Same—Apportionment.—Nor in such a case does the rule apply that where the original mortgagor has made several conveyances, the court will, upon foreclosure, decree that the parcels be sold in the inverse order of the dates of the conveyances; for this rule was not intended to impair the rights of the mortgagee, and will not be permitted to have that effect. The rule merely enforces the equity maxim that “equities prevail in the order of time,” by adjusting the burden of the mortgage indebtedness in the order of purchase.</p>

<p>1. Partnership—Shares of Partners.—When an account is to be taken, each partner is entitled to be allowed, against the other, everything he has advanced or brought in to the partnership, and to charge the other in the account with what the other has not brought in, or has taken out more than he ought; and nothing is to be considered his share but the proportion of the residue on the balance of the account. This proportion of the residue to which each partner is entitled upon final settlement, is what remains to him after all his obligations to the firm, and to the other members thereof, respectively, arising out of the contract or articles of partnership, have been fully discharged.</p> <p>2. Special Lien of Partners.—Each partner has a special lien on the partnership stock for moneys advanced by him more than his share for the use of the co-partnership, and the lien of each partner exists not only as against the other partners, but also against all persons claiming through them or any of them.</p> <p>3. Lien by Stipulation of tke Aiticles of Co-partnership.—Partners may stipulate-in their articles, as a part of the contract of partners, for an express lien in favor of one of them to guard against any loss or defalcation which might, incidentally or otherwise, injure the business of the firm, or might injuriously affect any member of th£ firm.</p> <p>4. Notice of Lien to Creditors.—In such case it is not necessary that the articles should be recorded in order to charge creditors with notice of the rights and interests involved. Individual creditors are required to take notice of the respective rights and interests in the partnership property, where the partners are in joint possession thereof in the prosecution of the business, and of the prior claim which any person interested in the business might have against the property.</p>

<p>Appeal from Vanderburgh Circuit Court.</p>

<p>1. Power of Corporation to Arrest by Means of an Agent.—An express company, from the very nature and necessities of its business, has a right to employ agents to make an arrest of one supposed to have stolen or embezzled money or property of the company, or money or property for which it is responsible, as well as to employ agents to do its ordinary work. And such agent may pursue such suspected person, and by all proper modes cause his arrest and his punishment, if found guilty.</p> <p>2. Responsibility of Company for the Torts of such Agent.—It necessarily results from such power that the company must be held liable for any trespass such agent may commit in the prosecution of such employment, according to the general rule by which the master is held responsible for the conduct of his servant. The general rule is, then, that a corporation is liable for the willful acts and torts of its agents, committed within the general scope of their employment, as well as for acts of negligence. And the corporation is thus bound, although the particular acts were not previously authorized, nor subsequently ratified by the corporation. And thus the corporation may become liable to respond in an action for false imprisonment.</p> <p>3. Evidence under a General Averment.—Under a general averment, when there is no motion made for a more specific statement of facts, any evidence is admissible which tends to show the truth of the averment.</p> <p>4. Several Liability of Tottfeasors.—The liability of tort-feasors is not joint, but several. The action may be againt all, or any number of them. Separate actions may be prosecuted at the same time against them, and separate verdicts and judgments obtained, whether for the same or different amounts; although the plaintiff can have but one satisfaction, and whether the judgment be joint or several, there is no right of contribution which can be enforced betweenJthe defendants.</p> <p>5. Void Warrant.—Where a warrant is directed to any constable of the county, but is put into the hands of a special constable, who makes the arrest, the warrant is void and the arrest is illegal; and an action for false imprisonment will lie thereon, but not an action of malicious prosecution, unless there are malice and a want of probable cause.</p> <p>6. Evidence of Habeas Corpus Proceedings in an Action for False Imprisonment.— Where a prisoner is discharged on a writ of habeas corpus, he may introduce the proceedings on the writ in evidence as a part of the transaction.</p> <p>7. Evidence of General Character in such Action.—Where in an action for false imprisonment, the defendant, in mitigation of damages, details facts to show his good faith in the matter, the plaintiff may, in rebuttal, produce evidence of his general good character. Such evidence, however, is not admissible, in the first instance ; nor can it be specifically applied to a reputation for truth and veracity, but must relate only to honesty and integrity.</p> <p>8. Hearsay Evidence.—It is proper in such a case to produce evidence of the loss of employment by reason of the imprisonment. But the fact of such loss of employment must be proved like any other fact, and not by mere hearsay.</p>

<p>1. Parol Evidence as to Liability of an Indorser.—The prima facie liability of an indorser is controllable by proof that a different liability was intended.</p> <p>2. Mtilual Intent at the Twit of the Contract Fixes its Character.—A contract of indorsement or suretyship is fixed at the moment of its complete execution, that is, upon its delivery; and nothing said or done, by either party, afterwards, can change the character of it, though it might be used as evidence on the subject. Whether the contract is one of indorsement or suretyship depends not on the intent of one of the parties, but on the mutual understanding and intent of both. This kind of contract is not an exception to the rule which requires the consent of both parties.</p> <p>3. Special Findings,—Special findings by a jury or a court must find facts only, and not mere items of evidence.</p> <p>4. Conclusions of Law.—And conclusions of law must embrace matters of law only, and not, in part, matters of fact which should be found as such.</p>

<p>Appeal from Grant Circuit Court.</p>

<p>Appeal from Cass Circuit Court.</p>

<p>Appeal from Wabash Circuit Court.</p>

<p>Criminal Law—Appeal—No Objection Pointed Out,—Where an indictment is apparently good, and no objection is pointed out by appellant, this court will not consider assignments of error based upon the quashing of such indictment, or the overruling of a motion in arrest.</p>

<p>1. Evidence—Exception to Admission of.—Unless the specific ground of obi¿ction to evidence be stated by the party objecting to its admission, there will be no question reserved in the matter for appeal.</p> <p>2. Excluded Evidence—How to Save the Point.—Where questions are propounded to a witness and then excluded by the court, in order to save any question theraon, an offer should have been made to prove the facts sought to be elicited.</p> <p>3. Appeal—Exception.—An objection not followed by an exception is of no avail on appeal.</p> <p>4. Argument to Jury—Remarks of Counsel.—The fact that the venue of the cause had been changed, held improper to be commented on to the jury.</p> <p>5. Damages—Assault and Battery—False Imprisonment—Where the act, for commission of which damages are sought, is punishable by fine or imprisonment, punitive damages can not be recovered : but where the same suit is brought in separate paragraphs, first for assault and battery, next for false imprisonment, the latter is sufficient ground for exemplary damages.</p> <p>6. Same—Measure of Excessive.—Five hundred dollars is not too much smart money for an assault upon a female accompanied by insult and confinement, even though very brief. In such cases the verdict will not be interfered with as excessive unless it appears so outrageous at first blush as to indicate passion and prejudice.</p>

<p>1. Pleading—Exhibits.—In case where exhibits are of such character as not to become part of the complaint by being filed with it, the averments of the complaint alone can be referred to in determining whether it is sufficient.</p> <p>2. Disability—Presumption,—Where disability is not alleged or apparent, the ■contrary will be inferred.</p> <p>3. Guardian and Ward—Final Settlement—Limitation.—The same limitation applies to actions to set aside the final settlement of a guardian, as does to those of executors and adminstrators, viz: three years, where there is no disability of the plaintiff. The complaint in such case is bad if it shows suit brought after three-years.</p>

<p>Written Instruction— Verbal Repetition of—Exception.—No question is presented for decision by the Supreme Court upon a showing in the bill of exceptions that a verbal repetition was given of the substance of one of the written charges of the court below, the court having been requested before the argument to give its instructions in writing and the bill of exceptions showing that said verbal repetition was not excepted to at the time.</p>

<p>Justice of the Peace—Appeal—Amount in Controversy.—In an action before a Justice of the Peace, no counter-claim or set-off being pleaded by the defendant, and the plaintiff being content with the amount for which he recovered judgment, the amount in controversy is the sum for which the judgment was rendered. In an action originating before a Justice of the Peace, where the amount in controversy is less than $50, an appeal to the Supreme Court must be dismissed.</p>

<p>Appeal from Huntington Circuit Court.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Criminal Law—Indictment,—An indictment charging that defendant did, from the 20th day of October, 1880, and on divers other days between that day and the day of making the presentment, keep his said room and tenement to be used for gaming, is a distinct and substantive charge under the first branch of Sec. 24 of the misdemeanor act.</p>

<p>Criminal Law—Renting Property for Gaming Purposes—Evidence.—To sustain a prosecution under section 29 of the misdemeanor act, the State must show that the defendant rented the property for the purpose of gaming. There must be sufficient evidence, either direct or circumstantial, of this essential element of the offense.</p>

<p>Criminal Law—Affidavit.—The affidavit on which a prosecution for an offence is based must state that the defendant was in custody on the charge preferred against him, and that the grand jury of the county was not in session.</p>

<p>Appeal from Marshall Circuit Court.</p>

<p>Appeal from DeKalb Circuit Court.</p>

<p>1. Fraudulent Conveyance—Special Finding—Costs.—The defendant, in a suit to set aside a fraudulent conveyance, is entitled to recover judgment for his costs where the court specially finds that the conveyance was made in good faith, that the transaction was a dona fide one, and that the consideration was the full value of the property in dispute at the time of the conveyance.</p> <p>2. Cause of Action—Motion in Arrest of Judgment.—Where the foundation of a claim is the existence of a valid cause of action against á principal defendant, and the court has found that no such cause exists, a motion in arrest of judgment should be sustained in favor of a co-defendant, where the court has found against him.</p>

<p>1. Complaint—Demurrer—Husband and Wife—Coverture.—A complaint, good in part, will successfully resist an attack made by a demurrer to it as an entirety. A wife may maintain an action for money paid at the request of another, and cov-erture is no defense in such an action.</p> <p>2. Answer.—An answer which undertakes to answer a whole complaint and only answers part, is bad.</p> <p>3. Reply—Demurrer—Husband's Gift of Wife’s Services.—A husband may make a valid gift of his wife services to her, and the party against whom she seeks a recovery cannot successfully dispute her right to maintain the action.</p> <p>4. Husband and Wife— Witness.—A wife is a competent witness when she is the owner, in her own right, of the cause of action.</p>

<p>Appeal from Huntington Circuit Court.</p>

<p>Indictment—Repugnancy—Title.—An indictment is not bad for a repugnancy between the title of the cause as to the party defendant and the body of the indictment in respect to the person charged, if there is sufficient matter alleged to indi, cate the crime and person charged.</p>

<p>1. Criminal Law—Evidence—Variance,—Under an indictment charging defendant with keeping a pool table for gaming purposes, evidence that he kept a billiard table would constitute a fatal variance.</p> <p>2. Statute Construed—Evidence.—The clause “for the purpose of wagering,” etc., in sec. 74 of the misdemeanor act, clearly'means “for the purpose of” (himself) “ wagering,” and not for the purpose of permitting others to wager thereon. Evidence that third persons were permitted to wager on a billiard table is not sufficient to convict the owner under the above section.</p>

<p>1. Service of Process—Default—Affirmation on Appeal.—A judgment by default cannot be affirmed on appeal unless the record contains a transcript of a summons and return of due service thereof; an express recital in the record that there was proof of the issue and due service of process is not sufficient.</p> <p>2. Appearance.—An entry of appearance is binding only upon those for whom there had been an actual appearance, which must be shown affirmatively in some part of the record.</p> <p>3. Complaint—Demurrer—Guardian’s Sale—Defect in Bond—In a suit on an additional bond, required to be given in cases of guardian’s sale of real estate, the complaint is sufficient if it avers that it was given as such additional bond. A bond taken or approved by a judge on the bench is taken by an officer in the discharge of the duties of his office, and the defects in form and recital of the instrument come within the letter and spirit of section 790 of the code.</p> <p>4. Same—Names of Parties.—The recital of the names in the copy of a bond filed with the compiaint is not a sufficient averment that the sureties joined with the principal in the execution of the bond, although they may be identical with the names of the defendant.</p> <p>5. Genetal Denial—Proof.—Proof that the defendant had “ fully performed all the connitions of said bond according to the tenor and legal effect thereof” is admissible under the general denial.</p>

<p>1. Complaint—Conversion—Demand.—Where an actual conversion of the money sued for has been alleged in the complaint, it is wholly unnecessary to aver therein a demand made before the commencement of the suit.</p> <p>2. Same.—An allegation of a refusal to account for the assets implies a demand for an accounting before suit brought. •</p> <p>3. Same—Demurrer—Motion to make More Specific.—In such a case the remedy 1 is a motion to make more specific and not a demurrer.</p>

<p>1. Criminal Law—Verdict.—A verdict of disfranchisement in the following words, “ and disfranchished for the term of two years,” is good under the act prescribing disfranchisement as a part of the punishment for grand larceny.</p> <p>2. Motion to Quash—Objection to Indictment, How Saved.—Where an objection to an indictment is based on an inaccurate description of the property charged to have been stolen, and such objection does not reach all the goods charged to have been stolen, the proper way to save the question is not by a motion to quash, but by objection to the admission of evidence concerning the property improperly described.</p>

<p>Appeal from the Monroe Circuit Court.</p>

<p>I. Practice—Complaint—Assignment of Errors.—If there is one good paragraph to a complaint, challenged for the first time in this court, by the assignment of errors, the assignment must fail, if the error charged is want of sufficient facts to constitute a cause of action.</p> <p>2. Same—Commencement of Action.—If the record does not show the issuing of any writ, and does not show any objection, made in the court below, to the time of bringing the action, it will be presumed that the action was commenced when appearance was made and answer filed; and the fact that no objection was made to the complaint, upon the ground that the action was prematurely brought, adds strength to the presumption that the action was not commenced until appearance was voluntarily made.</p> <p>3. Complaint—Defects Ciired.—Many defects, which a demurrer would reach, are aided by a verdict, and a finding by a court must, in this respect, be given the same effect as the verdict of a jury.</p> <p>4. Same—Omission of Averments—Evidence.—Where sufficient general facts are averred, to show that omission of facts, that were not sufficiently averred, might be supplied by evidence; it will be held that they were supplied.</p> <p>5. School Law—Contract—Teacher.—Where a teacher has actually entered into a contract with a school township, to teach for a stated term at a stated compensation per day, she will not be precluded from recovering the full amount due for the term, when the failure to conduct the school each day of the term is caused by the wrongful act'or omissiom of the township authorities.</p> <p>6. Waiver of Condition.—A condition in a contract is waived, by the failure to ask a compliance with the condition, or to make complaint of its non-performance.</p>

<p>Appeal from Laporte Circuit Court.</p>

<p>1. Ptartice—Cross-Complaint—Harmless Error.—Where a question presented in two different paragraphs of a cross-complaint is the same, it is harmless error, if the court sustains a demurrer to one of the paragraphs.</p> <p>2. Voidable Conveyance—Disaffirmance.—The disaffirmance of a voidable deed may be by entry upon the land, by a written notice of disaffirmance, by a subsequent conveyance, or by another equally emphatic act declaratory of an intention to disaffirm.</p> <p>3. Destruction of Voidable Deed—Position of Party Disaffirming.—It is the act</p> <p>of disaffirmance which destroys a voidable deed, and not the proceedings which may be taken to give force and effect to the disaffirmance after it has been made. It is not necessary that the party should be in a position to recover the possession of the land when he disaffirms the deed. ,</p>

<p>Appeal from Clay Circuit Court.</p>

<p>Appeal from Clark Circuit Court.</p>

<p>Appeal from Shelby Circuit Court.</p>

<p>Appeal from Hendricks Circuit Court.</p>

<p>Appeal from Dearborn Circuit Court.</p>

<p>Exceptions and Provisos in a Criminal Statute.—Where an exception is not contained in the body of a statute or section, but in a subsequent clause, it is a matter of defense merely, and it is not necessary to negative it in the indictment.</p>

<p>1. Title of Statute.—The text of a statute must be included within the limits of the title.</p> <p>2. Revenue Act of 1875 Construed as to Compensation of City Treasurers.—It was QOt the design of this act to regulate or to change former laws concerning the compensation of city treasurers, but the design was to provide uniformity as to the time and manner of making and equalizing assessments and collecting taxes for State, county and municipal purposes, except in regard to the time of collecting city taxes.</p> <p>3. City Treasurers to be Paid by Salaries—Salaries Defined.—City treasurers are to be paid for general services, not by wages or by fees, but by salaries accurately determined and fixed on some certain basis, by which the amount shall be certain and knowable when fixed. It cannot be estimated on taxes to be collected, in the way of a percentage, although such percentage may be allowed as salary on the amount already levied, this being a certain basis. The council of each city must fix a definite salary, in its sound discretion, to be paid out of any funds available for the general purposes of the corporation.</p> <p>4. Fees and Charges in Addition to Salary.—For special services and expenses incurred in distraining, preserving and removing property taken for non-payment of taxes, the officer may be paid by fees, under the statute of 1861, such as are allowed to constables on execution sales.</p>

<p>1. Constitutionality of Criminal Law of March 29, 1879.—The said act is a general law of information throughout the State, and therefore does not conflict with the provision of the constitution which forbids the passage of local or special laws for the punishment of crimes and misdemeanors.</p> <p>2. Prosecution by Affidavit and Information.—Under section one of the Acts of 1879, p. 143, if there is no grand jury in session, and an accused person is in custody, a trial may be had on affidavit and information, and it is sufficient that such jurisdictional facts be stated in the affidavit and information. Section 2 allows the accused a right to demand a trial without delay, in the same manner; but it is not a limitation on section 1 ; so that such demand of the accused is not a necessary jurisdictional fact in such proceeding under section 1. Such demand is a mere personal right of the defendant conferred by section 2; and the court’s jurisdiction does not depend upon his exercise of the right.</p>

<p>Variance in Trial for Forgery.—-On a trial for forging a national bank note, a variance, even in the middle initial letter of the name of the register of the treas - ury, between the description of the note in the indictment and the note offered in evidence, is fatal.</p>

<p>Appeal from Allen Circuit Court.</p>

<p>1. Office of Prosecuting Attorney in two Judicial Circuits—Act of March 21, i$6i, Construed.—The appellant was elected prosecuting attorney for the 35th judicial circuit. Afterwards, and previous to the commencement of his term of office, the legislature separated a portion of the 35th circuit, including the county in which he resided, from the other counties and constituted such portion a new judicial circuit numbered 40. The act provided that the Governor should appoint a prosecuting attorney for the new district, to serve until the official term of the appellant should begin by virtue of his election, when he should be the prosecuf ing attorney for the 40th as well as the 35th district. The 40th was to be but temporary, and should, after a stipulated time, revert to the 35th. Held, That he was prosecuting attorney in both circuits after his elective term commenced until the 40th became extinct; and he had a right when doing business in the 40th to designate himself as the prosecuting attorney thereof. When the new circuit ceased to exist he remained the attorney for the entire 35th.</p> <p>2. Relation as to an Intruder in Such Case.—Such prosecuting attorney has a right to be a relator where in such case he claims that another has intruded into his office.</p>

<p>Appeal from Tippecanoe Circuit Court.</p>

<p>Appeal from Parke Circuit Court.</p>

<p>Collecting Delinquent Taxes—Commission of Treasurer.—A county treasurer has, at all times, power to levy and collect delinquent or other than a current year’s taxes, and is required to levy and collect them, whether charged on the current year’s duplicate or otherwise, as well before as after his return and settlement for the current year’s taxes, and is entitled to charge a commission of five per cent, on such taxes paid voluntarily.</p>

<p>1. Assignments of Error.—The sufficiency of the complaint, as a whole, may be assigned as error, and so the sufficiency of each paragraph be brought under review, but separate assignments on the respective paragraphs severally cannot be made; for an assignment must be such, as if true, will require a reversal of the judgment. It is in effect the appellant’s complaint in the supreme court, and each must in itself state a sufficient cause for reversing the judgment.</p> <p>2. Mistake in Instrument.—An erroneous amount inserted in a conditional promissory note by mutual mistake may be corrected in an action on the note.</p>

<p>Appeal from Hendricks Circuit Court.</p>

<p>Appeal from Dearborn Circuit Court.</p>

<p>Appeal from Greene Circuit Court.</p>

<p>1. Evidence of Destitution in an Action for Negligence.—In such action for the killing of an intestate through negligence, it is not competent to prove that the deceased left his family in destitute circumstances.</p> <p>2. Exceptions in Trial Court.—A party must state specifically his grounds of exception to a ruling, and the bill of exceptions must exhibit them as stated.</p> <p>3. Degree of Care required of a Municipal Corporation.—If there is a dangerous place in or near the usually traveled part of a street, the municipal authorities must use ordinary care to protect persons who make lawful use of the street in a reasonably prudent manner from injury. It is not sufficient to make the traveled part of the street safe, but dangerous places near it must be guarded against by proper precautions.</p> <p>-4. Proof of Prior Injuries to Other Persons.—For the purpose of showing knowledge on the part of the municipality of a dangerous place, it is competent to show that other persons had previously been injured there.</p> <p>5. Record of Council Proceedings as Evidence.—Appropriate records of the proceedings of the common council may be used as evidence in an action against a city for negligence, because the council is the agent of the city in its action, through which only it can act.</p> <p>6. Measure of Damages—Instructions.—Where facts are given in evidence which ought not to be considered in estimating damages, the instructions of the court should inform the jury what facts should be considered by them in making up their estimate, and not leave it to them to take into account facts which have no legitimate bearing on that branch of the case; and, then, they have, on this basis, properly, a very broad discretion on the matter of damages.</p>

<p>1. Stay of Execution—Affidavit—No affidavit is required in connection with a contract and entry of replevin bail. The surety owes no debt, and undertakes simply for the debt of another, which is already in judgment, excluding inquiry concerning its validity or the amount due thereon.</p> <p>2. Entry of Replevin Bail therein.—There is no explicit requirement of an attestation or formal approval by the clerk, and in the absence of an unequivocal showing to the contrary, it will be presumed from the docket entry that he approved the bond. ,</p> <p>3. Decree of Foreclosure—Alias Execution.—Where a decree of forecloure contains no personal judgment, and, on sale, the mortgaged premises do not satisfy the mortgage, an alias execution may be issued, nevertheless, by the clerk, without a special order of the court against the defendant or against the replevin bail, to be levied generally on his property. The recognizance of bail as entered and signed became in effect by virtue of §427 of the code, a judgment confessed against him, and as to him it was a personal judgment, specific in amount and capable of being enforced as an ordinary judgment is, except only that the decree against the real estate must be exhausted before resorting to an execution against the surety.</p>

<p>Appropriation of Payments by Creditor.—A creditor cannot, at his discretion, appropriate payments made by his debtor after a controversy has arisen concerning such payments. Payments thus made will be applied by a court according to the recognized rules of law governing the application of unappropriated payments.</p>

<p>Appeal from Jasper Circuit Court.</p>

<p>1. Notice in Ditch Proceedings.—The full statutory notice must be given. But if the court has jurisdiction of the subject-matter, and is required to decide all jurisdictional questions, either expressly or impliedly, and decides that notice was given, this decision will repel a collateral attack, unless the record affirmatively shows that no notice was given, and this is so, although the record shows a defective and irregular notice.</p> <p>2. Injunction—Estoppel.—But an interested person may estop himself from suing out an injunction by his silence while a ditch is being constrncted. He cannot knowingly allow expenses to be incurred and then complain afterwards.</p> <p>3. Injunction on Breach of Contract.—The mere fact that a contract has not been fulfilled is no proper ground for an injunction.</p> <p>4. Bond of Contractor.—Under the ditching law an engineer of the work may become surety on the bond of the contractor, since this is not becoming interested in the contract.</p>

<p>Appeal from Clinton Circuit Court.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>1. Right of the State to an Escheat as a Counter-claim.—Even were it to be al* lowed that the State had no right to the possession of escheated lands without an information found, yet such information may be made the subject of a counterclaim, so that, if the original complaint be dismissed, this does not dismiss the counter-claim.</p> <p>2. Possession under Escheat by Alienage.—Where an alien dies intestate leaving no one in possession, no heirs being known and no claimant appearing, the State may enter and take possession at once; but if the alien makes a devise, the State must first establish title by information before taking possession, because here are known devisees claiming the land.</p> <p>3. Harmless Ruling on a Demurrer.—Where an answer is put in to a counter* claim, by way of a general denial, under which evidence supporting special paragraphs of answer may properly be given, a ruling sustaining a demurrer to such special paragraphs is harmless, even if erroneous, and is not available on appeal.</p> <p>4. What Evidence Musi Appear in Order to Sustain a Tax Deed.—It must be shown that the taxes were legally assessed on the land, that they were legally returned as delinquent, and that the land was sold therefor at the proper time and place.</p> <p>5. Statute of Limitations as to Prior Sales for Taxes.—A reasonable time after the passage of a statute of limitations will be allowed to assert claims to lands sold for taxes, whether by individuals or by the State.</p> <p>6. Estoppel in Pais as to the Right of Escheat.—In the absence of misrepresentation or fraud, it is of the essence of an estoppel in pais that the party claiming the benefit of the estoppel shall have acted in ignorance of material and relevant facts -within the knowledge of the other party, or which the other party ought, under the circumstances, to have known and communicated.</p> <p>7. Estoppel by Deed as to the State.—An auditor’s deed on a sale for taxes can -, not bar an assertion by the State of title to the land sold, for such a deed neither expressly or impliedly contains a covenant of seizure or of warranty. It does not purport to convey any right, title or interest of the State other than the lien for the taxes assessed; and none of the parties to the sale could suppose the deed to be intended otherwise than merely as a tax deed, operative only on the title of the parties against whom the taxes were assessed for which the sale was made, and conveying to the purchaser the title, if all the proceedings are strictly lawful, but otherwise only the Hen which the State had held, or if the State had no lien, then the right to reclaim his bid. There can be no estoppel thereby against any claim the State may have to the title by escheat. The purchaser may have a right as against such claim to demand the return of the bid at the sale, of taxes since paid, and of the value of permanent and valuable improvements made on the land, but no more.</p>

<p>Appeal from Hendricks Circuit Court.</p>

<p>1. Indorsement of . Promissory Note.—Where a note is assigned by several parties before delivery to the assignee, the instrument imports a consideration against all of them and no special averment of a consideration is necessary in a complaint.</p> <p>2. Instructions on Appeal.—These are not in the record unless signed by the judge,</p> <p>3. Best Evidence of Release of Surely.—One who sets up a defense whereby he claims a release from one writing by reason of the execution of another cannot be allowed to shift the burden of proof from himself until he has produced the new writing, which he claims releases him as surety or indorser, or, having shown a good reason for not producing it, shall have proved its contents.</p> <p>4. Recalling a Witness.—It is, in some measure, a matter of judicial discretion whether a witness, after being once discharged from the stand may be recalled by the party who first called him. And it can never be an available error to exclude a mere repetition of testimony already given.</p>

<p>Appeal from Decatur Circuit Court.</p>

<p>Appeal from Cass Circuit Court.</p>

<p>Defaulting Executor.—Where an administrator or executor has been removed, he cannot be proceeded against by attachment on account of money of the estate used in his business before the removal, when he does not attempt to conceal the facts. The object of the law was only to effect a discovery and restoration, and not to punish for what can not be compensated. For any amount misappropriated or used, but not concealed, the sureties on the administration bond are liable in a civil action.</p>

<p>Forfeiture of Bail Deposit—Allowances of Prosecuting Attorney and of other Officers therein.—Where, in a criminal prosecution, the accused deposits a sum of money instead of giving bail, and it is forfeited, the prosecuting attorney is entitled to a docket fee of #10, to be paid out of it, but is not so entitled to a percentage; nor are other officers’ fees to be paid out of the amount deposited.</p>

<p>Levy Upon a Cause of Anion.—The debt or thing in action which may be given up by an execution-defendant and levied upon, sold and assigned by a sheriff under the statute, must be some tangible and well identified cause of action, upon which suit may be brought by the purchaser in the same manner as might have been done by the execution-defendant, and capable of being assigned and delivered to the purchaser, such as a paper writing signed by some third person, a ¡July itemized account, or other chose in action described upon or by some paper.</p>

<p>Appeal from Benton Circuit Court.</p>

<p>Fees of Prosecuting Attorney on Forfeited Recognizance.—A Prosecuting Attorney is not entitled to a percentage on money paid before final judgment on a forfeited recognizance*</p>

<p>1. Allegations of Indictment for Burglary of Railroad Office.—It is not necessary that such an indictment should aver that the railroad company is a corporation. This will be presumed.</p> <p>2. Proof of Corporate Character.—It is not improper in such a case to ask a witness if the company is a corporation. It is sufficient to show that it is acting as a corporation.</p>

<p>1. Failure of Tille as a Defense.—In the absence of covenants of warranty or for title, or proof of fraud, a failure of title is no defense to an action for the purchase-money of real estate.</p> <p>2. Presumption as to Instructions.—Where the evidence is not in the record, instructions will be presumed to be correct, if applicable to any supposable state of the evidence.</p> <p>3. Bill of Exceptions.—Oral testimony must be written in the bill of excep tions before the judge signs it.</p>

<p>Appeal from Monroe Circuit Court.</p>

<p>Appeal from Clinton Circuit Court.</p>

<p>Appeal from Monroe Circuit Court.</p>

<p>1. Answer Musi be Full.—Each paragraph of answer must fully answer the entire complaint, or so much thereof as it purports to answer, or it must be held bad on demurrer thereto for the want of sufficient facts.</p> <p>2. Receipt May be Explained or Disproved.—A receipt, even of a judgment, may be explained, controlled, qualified or even contradicted by parol evidence.</p> <p>3. Pleading Estoppel.—A plea of estoppel must be certain to every intent, and cannot be taken by argument or inference, because it excludes one from alleging the truth.</p> <p>4. When the Doctrine of Estoppel Applies.—The doctrine of estoppel can have no application when everything in relation to the transaction is equally known to both parties.</p>

<p>Appeal from Washington Circuit Court.</p>

<p>Appeal from Spencer Circuit Court.</p>

<p>Probate of Will Necessary.—No rights can be claimed under a will not probated in this State. When probate is made, the will is, by relation, made operative from, the death of the testator.</p>

<p>Ditch Law—Jurisdiction of Commissioners—Decisions not Attacked Collaterally.— Where the finding and order of a county board upon the fact whether the petition for a ditch is signed by a majority of land owners, and upon the appointment of appraisers to assess benefits and injuries—these being matters placed by the statute under the jurisdiction of the board—is not appealed from, such finding and order are binding and conclusive, even if erroneous, and can not be collaterally attacked.</p>

<p>Appeal from Howard Circuit Court.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>Appeal from Wells Circgit Court.</p>

<p>Appeal from Hamilton Circuit Court.</p>

<p>1. Allowance for Necessaries of IVard.—The mere fact that a guardian is stepfather to his ward does not vitiate an allowance made by the court for -his providing the ward with boarding and clothing.</p> <p>2. Jury Trial on Guardian's Report.—Trial by jury is not a matter of right in case of exceptions to the report of a guardian; and in vacation would be impracticable.</p>

<p>I. Eminent Domain as to Highways.—Where a jury, on ah application to alter a highway, has returned a verdict that the proposed change would not be of public utility, the court can not order that the petitioner be allowed to make such change, at his o <vn expense, over the lands of another, without the owner’s consent. 2. Statute Pronounced Unconstitutional.—So much of section 24 of the Highway Act as would seem to imply that such an order would be lawful is inoperative and void, as being derogatory to the constitutional rights of those whose lands might thus be appropriated without their consent when not needed for public uses.</p>

<p>I. Allegations under the Liquor Law.—In an information for violating the liquor law in selling intoxicating liquor, it is not necessary to describe the kind of liquor sold.</p> <p>2. Jurat to Affidavit—Presumption as to Officer's Signature.—It will be presumed that the jurat of an affidavit is a lawful one, and that the person by whom the oath purports to have been taken had authority to administer oaths.</p> <p>3. Judicial Knowledge as to Clerk.—A court will take judicial notice of the signature of its officers and of who is its clerk, and what is his signature.</p> <p>4. Proof of Quantity of Liquor Sold.—This proof is essential in a prosecution for selling less than a quart to an intoxicated person.</p>

<p>Appeal from White Circuit Court.</p>

<p>Appeal from Grant Circuit Court.</p>

<p>Appeal from White Circuit Court.</p>