Volume 1 — Wilson's Indiana Reports

<p>Assault and Battery — Aiding and Abetting — Conspiracy— New Trial.</p> <p>Liability for assault, extends not only to persons committing the act, but as well to those who are present, and encourage either its commission, or its continuance.</p> <p>Presence at the commission of an offense, and encouragement either by words, signs, or gestures, or being sufficiently néar, in pursuance of an agreement to assist, is aiding and abetting in the commission of the wrongful act.</p> <p>Where the evidence discloses the presence of others in a situation to render aid, the jury may determine whether such persons were not there for the purpose connected with the assault, and from such circumstances and facts, they may properly infer the formation of a conspiracy for its commission.</p> <p>A new trial will not be granted because of newly discovered evidence, where it is cumulative, or to impeach a.witness; nor for newly discovered evidence, not cumulative, if such evidence would not probably produce a different result on a new trial; nor where in support of motion for new trial, is shown a manifest lack of diligence in obtaining the evidence upon which the motion is based.</p>

<p>Before Newcomb, Judge. On a motion for an Injunction to restrain the collection of assessment made for construction of Gravel Head.</p>

<p>Trespass — Practice—Pleading—New Trial — Exceptions.</p> <p>Where no adverse possession is shown, a plaintiff in an action for trespass upon realty, may recover without showing previous possession.</p> <p>An adverse entry is not to he presumed, hut must be proven.</p> <p>A complaint in trespass, simply declaring for damages by adverse possession, and for removal of buildings, does not raise the question of title to the real estate.</p> <p>Where the defendant in an action of trespass justifies by reason of some title or easement, which gives him a legal right to do the act which is the subject of the action, he must set forth the title or right to enjoy the easement specially.</p> <p>Questions of law, arising upon the finding must be saved by exceptions to the conclusions of law.</p> <p>A motion for new trial is the proper remedy where the finding is not sustained by the evidence.</p>

<p>Common Council as Public Agents — Powers and Jurisdiction of- — Liability for illegal proceedings — Relation of Mayor to.</p> <p>The Common Council, so far as their adm.nistrative or ministerial duties extend, are agents of the city, and as such may contract, among other things, for street improvements.</p> <p>The jurisdiction of a Common Council is confined to that territory only, which is within the boundaries of the city.</p> <p>The Council has no power to contract for improvements beyond the city limits, and no assessment will lie, therefore, against property holders abutting such improvements.</p> <p>A person contracting for a street improvement has a right to presume that the Council had used the proper diligence to acquaint themselves with the city boundaries.</p> <p>Public agents exceeding, negligently using, or abusing their authority, are liable to the injured party, and the Common Council, as such, in careless.ly authorizing improvements beyond their jurisdiction, become personally liable for the value of the work done in obedience to their authority and direction. It is not sufficient to show that they acted bona fide and in ignorance of the true city boundary. They are bound to the exercise of reasonable skill and diligence in acquainting themselves with the territorial limits of the city, and are supposed to know the limit of their power.</p> <p>Affirmative participation in such unauthorized action of the Council is necessary to attach responsibility for its acts.</p> <p>The Mayor of a city, under the laws of this State, is ex officio President of the Common Council, and as such is required by law to attend their proceedings, and in case of an equal division, gives the casting vote, but in no other sense is he a part of the Council, and is not liable for the consequences of proceedings of the Council in excess of its jurisdiction, simply because he signed the ordinance.</p>

<p>Promissory Note — Surety.</p> <p> Suit against B., as surety on a promissory note executed by A., A. having been adjudicated a bankrupt. </p> <p>Defendant answered that plaintiff, without his knowledge, extended the time of payment for a consideration, and by so doing released him from further liability as surety. The plaintiff in reply declared, First, that no consideration was given for the extension.</p> <p>Second, That defendant had received security from A to indemnify him against loss on this note, and that he still held such security.</p> <p>Third, That defendant, after extension of payment, consented to, ratified, approved, and confirmed such extension.</p> <p>Held: On demurrer to these several issues—</p> <p>Sirst, That if the agreement to extend the time for payment was made without any valid consideration, it did not release the surety.</p> <p>Second, That where the surety is fully secured by property in his hands, he is estopped from, objecting to any extension of time made between creditor and principal. Such security being, in effect, an appropriation by the surety of that portion of the effects of the principal to the payment of the debt.</p> <p>Third, Where a demurrer to a paragraph of the reply has been overruled, and on the trial the issue made by such reply is found against the plaintiff, the defendant can not complain of the ruling on his demurrer.</p> <p>Pleading — Departure in — How remedied.</p> <p>A departure in pleading can not be reached by motion in arrest of judgment, but objection must be taken advantage of, by motion or demurrer, before the issues are completed. •</p>

<p>On motion for new trial, before Blair, Judge.</p>

<p>Appeal from Blair, Judge.</p>

<p>Appeal from Newcomb, Judge.</p>

<p>Appeal from Rand, Judge.</p>

<p>Appeal — Statutory exceptions, to rule in — Restraining order.</p> <p>An appeal does not lie from, an order seitmg aside a temporary restraining order.</p>

<p> .Application for injunction for infringment of Trade Mark. </p> <p>A party purchasing part of a trade mark, and adopting the balance, will be protected in his title to the former, as well as the latter.</p> <p>IThe use of some word, letter, or character, of a trade mark, by different parties, without hindrance, will not work an abandonment by him in .whom its right .of .use,.and title is vested.</p> <p>A trade mark composed of such devices as denote simply, quality of> an article, will be protected, especially if it is once established,</p> <p>it is an infringement of a trade mark, even though the imitation ancfi original, when placed side by side, would not mislead, if the similarity is such that a difference would not be noticed when seen at different times or places.</p> <p>Note, — Perpetual injunction was granted against defendants, at the following May Term, and judgment rendered against them for damages and costs. — Rep.</p>

<p>Contract, recision of — Agreement, performance of.</p> <p>‘Where an agreement contains no specified time for its performance, its execution must be within a reasonable time''. Pailing to carry out its provisions, to entitle either party to recovery for breach, a tender must be made of the consideration, on the one part, or demand for the performance of the contract on the other.</p> <p>A party who seeks to rescind a contract, must return, or offer to return, whatever consideration he has received on the contract, or at least put the parties in statu quo, as nearly as the fraud, of the opposite party will permit.</p> <p>The provisions of Sec 25, of the Act creating the Superior Court, in the determination of cases in the General Term, gives a discretionary power to enter, affirm, reverse, or modify the decision made -in Special Term, and accordingly the Court in General Term, may settle the rights of the parties, on appeal, by a discretionary Order to-the Judge, before' ■whom the case was heard in Special Terra.</p>

<p>Appeal from Newcomb, Judge.</p>

<p>Railroad — Highway crossing — Negligence.</p> <p>Where a person approaches a line of railroad, that for some distance is to be seen from, and in direction of a highway, which he is traveling, and the railroad crosses, and such person fails to use all reasonable means to ascertain whether a train is near, or that it would be safe to cross the track without stopping to look, and investigate the probabilities. of danger, and goes upon the track, and is injured by a passing train, he is guilty of negligence, and can not recover damages.</p> <p>An answer to a question collateral to the issue can not be contradicted by the interrogating party — it is conclusive against him.</p>

<p>Board of Commissioners — Contract with, when valid.</p> <p>The Board of County Commissioners is a Court of special, and limited jurisdiction — it can only transact business as a Board when in session.</p> <p>The County is not made liable on the certificate of the architect, employed' by the Commissioners .for a special duty, for materials furnished, if the order, or contract for the' materials had not been confirmed by the Board, when legally in session.</p> <p>Where the complaint shows a good cause of action, in this, that the material was furnished, and delivered at the special instance and request of the architect, and was used by direction of the Commissioners—</p> <p>Held: That an action will lie for the value of the material furnished,, irrespective of the alleged special contract.-</p>

<p>Appeal from Blair, Judge.</p>

<p>Common Council — Petition to, presumed to be made in good faith — Money consideration for signature to— Petition void — Practice.</p> <p>dlhe members of the Common Council of a city in acting upon a petition for the improvement of a street, have a right to assume that the petition is made in good faith by the owners of real estate, who are willing to pay their share of the burden, and who desire the improvement, and that all the petitioners are uninfluenced by any combination, by which a few, who are anxious for the improvement to be made, have agreed to pay a consideration, either directly or indirectly, to procure the signature of others to the petition.</p> <p>©ood faith toward the owners of real estate, who are in the minority, and who are opposed to the improvement, and to having .the burden imposed upon themselves, requires that the petitioners should all act in good faith, and all'be willing to assume their due portion of the tax, and that they should not be paid a consideration for signing the petition.</p> <p>An agreement, by which a sum of money is guaranteed io be paid to certain persons, provided they will petition the Common’ Council of a city for the improvement of a street, is void, as against public policy, and can not bo enforced.</p> <p>Where a portion of pleading is struck out on motion, but no bill of exceptions is filed making the portion struck out a part of the record, no question is presented on appeal, upon the ruling of the Court in striking out.</p> <p>Where specific facts are set out in an answer, from which a legal inference arises that the agreement sued on is corrupt and void, as against public policy, it is not error to sustain a demurrer to a reply, stating in general terms that the contract sued on was accepted, and the acts of the plaintiff, in compliance with the agreement, were done in good faith, without .■any desire, or design, to exercise a corrupt, or fraudulent influence.</p>

<p>Prayer for Injunction, to restrain the County Treasurer from enforcing payment of taxes on bank stock.</p>

<p>Costs — Rule as to, in Superior Court.</p> <p>The rule as to costs under Section 337, of the Code, applies as well to actions begun, and determined in the Superior Court.</p>

<p>Appeal from Blair, Judge.</p>

<p>Appeal from Newcomb, Judge.</p>

<p>Warrant — -for arrest of fugitives — Habeas Corpus.</p> <p>A Warrant for the ari'est of a fugitive may be served in any county in the State, by the Constable to whom the warrant was issued, in the county where the offense was committed: Provided, the certificate of the County Clerk is attached, showing that the Justice of tho Peace issuing the warrant, is duly commissioned, and qualified as such, and that his •signature thereto is genuine. .Sec. 8, G. and H. 621, and 2, G„ and, IL ;319, construed together.</p>

<p>Appeal from Baud, Judge.</p>

<p>Appeal from Blair, Judge.</p>

<p>Appeal from Rand, Judge,</p>

<p>Justice op the Peace — malfeasance of — writs issued by, must be to duly appointed officers—</p> <p>Constable — when persons acting as, liable for trespass— Arrest and False Imprisonment — ivhen ministerial officers and others are liable for.</p> <p>The provisions of the statute requiring a Justice of the Peace to record the appointment of a special constable on his docket, and to direct process to him by name, are imperative, and not directory.</p> <p>A writ directed “ to any Constable of the County, &c.,” will not justify a trespass committed by such special Constable in attempting to serve such writ.</p> <p>Parties acting at the instance of any one assuming the duties of a ministerial office, are bound to know whether he is in fact such officer, and whether he in fact bears that authority.</p>

<p>Appeal from Rand, Judge.</p>

<p>Appeal — in Superior Couri.</p> <p>An appeal can not be taken from a Special to a General Term of this Court, except in like eases where an appeal will lie from the Circuit to the Supreme Court.</p>

<p>Appeal from Bn air, Judge.</p>

<p>Promissory Note — relation of maker, and endorsers thereto.</p> <p>Endorsers — liability of—</p> <p>Makers — liability of.</p> <p>The members of a firm can not maintain a suit at law on a note against a third member, as joint obligors, because the same persons can not occupy the positions of obligor, and obligee, but they can endorse it to a thirj) party, who can maintain such action against all the makers.</p> <p>In equity, suit can he maintained by the obligees against the other obligees, in which all the equities arising on the contract can be fully adjusted between the parties.</p> <p>A person may be a joint matter, and also payee, or endorser, and his rights, and liabilities in one capacity be different from that of the other, or in other words, responsible to the holder in each capaci'y, so far, that a judgment for, or against him as endorser, would not extinguish the liability of the other parties as joint matters. Hence a judgment against two members of a firm as endorsers, does not merge the note so that suit can not he maintained against a third member as matter.</p>

<p>Treasurer of State — liability of—</p> <p>Bond of — how far liable on—</p> <p>Sureties on — Bond of how far liable.</p> <p>The act to provide a treasury system for the State of Indiana,* and the act of 1861, entitled “ an act defining certain felonies, and misdemeanors, and prescribing punishment therefor, and providing for certain evidence on the part of the State,”† must be construed in pari materia.</p> <p>The purpose of these acts is to compel the keeping of the money of the State in the safes, and vaults provided for in the first cited act, and to prohibit the use of the funds in the hands of the Treasurer by investing, loaning, or depositing the same.</p> <p>The last clause of the fifth section of the act of 1859,¶ which requires that all interest, or bonus received by the Treasurer of State, arising out of any money of the State, shall by him be fully accounted for, is not a penalty prescribed for the violation of law.</p> <p>The penalties prescribed by the act of 1861,‡ for all violations of the provisions of the set of 1859; a-how an intention on the part of She Legislature to abandon tbe remedy provided by the last clause of the fijtk section ,of the act of 1&5&, and said, clause of said act is no longer operative, tbe legislation of 1861! being inconsistent therewith.</p> <p>Where all the funds, which by law are properly ia the hands of the Treasurer of State, have been fully accounted for, and paid over, neither h% nor bis sureties are liable on Ms official bond as Treasurer, for other funds acquired by the doing of acts in Violation of law, and which acts constitute a crime, oí misdemeanor.</p>

<p>Auditor of State — duties of as custodian of the Sinking-Fund—</p> <p>Bond of — liability of sureties on—</p> <p>Sinking Fund — statutes construed—</p> <p>Embezzelment Act — construed—</p> <p>Repeal by Implication — discussed—</p> <p>Public Officer — presumption in favor of</p> <p>The Commissioners of the Sinking Fund were empowered by section eight of an act of the General Assembly, approved March 8, 1861, to temporarily deposit the income of the fund while accumulating for distribution, or the purchase of certain bonds therein named, or for other purposes of law, in responsible banking institutions, payable on demand, with interest for the benefit of the fund; and the act provided that all interest on such deposits should be carried into the fund, and become a part thereof.</p> <p>Said section was not repealed by the subsequent legislation of 1865, and 1861, whereby the custody of the fund was tranferred to the Auditor of State, and the permanent character of the investment thereof was changed.</p> <p>The Auditor of State succeeded to all the rights conferred, and to the liabilities imposed upon the Sinking Fund Commissioners by the act of 1861.</p> <p>Therefore, it was the duty of the Auditor of State, in case he loaned any portion of the fund, to do so in conformity with the statute of 1861; and if he loaned it otherwise, he and his sureties are liable in a suit on his official bond, for all interest received by him on such loans.</p> <p>The same liability exists for interest that might have been received by the fund if it had been deposited in conformity with the act of 1861, where the Auditor has used the mon'ey-of the fund in an unauthorized manner.</p> <p>The word “income,” as used in the eighth section of the act of 1861, included both principal, and interest of the money of the Sinking Fund that came into the hands of the commissioners, and authorized the temporary deposit of both principal and interest.</p> <p>The Auditor of Stale will be presumed to have done his duty as such officer, until the contrary is shown.</p> <p>By the embezzlement act of 1861, the officers therein named are prohibited from using public funds in their hands, as their o-wn, or in any manner not authorized by law; such moneys, therefore, could not become the property of the officer holding them, but remained the moneys of the particular fund on account of which they were paid to such officer.</p> <p>The word “ may,” in a statute conferring authority upon a public officer, will be construed to mean “shall,” when the public, or third persons have a claim, de fare, that the powor shall be exercised.</p>

<p>Where the record of a judgment shows that process has been served on the defendant, an omission to enter of record a default will not render the judgment inadmissible in evidence against the defendant.</p> <p>A certificate made by a Sheriff of the sale of real estate on an execution, is assignable, and will authorize the Sheriff to make a deed to the assignee.</p> <p>'The return of a Sheriff upon an execution as to matters required to be returned in the discharge of his official duties, can not be contradicted by the Sheriff, nor by the parties to the execution, by parol evidence, except in a direct proceeding.</p> <p>'Where it is shown by return, that a summons has been served in accordance with the provisions of a statute, the.party served can not, in a collateral proceeding, show by pajol that he had no notice of the action in which the summons issued.</p> <p>An innocent purchaser of property, sold at Sheriff’s sale on an execution, can not he effected by an irregularity in the issuance of the execution.</p>

<p>Divorce — when insanity, no cause for—</p> <p>Statute — construed—</p> <p>Appeal — from a judgment on “ seventh clause”—</p> <p>Insanity — when may be cause for divorce.</p> <p>The statute does not confer authority upon our Courts to decree a divorce to a party on the sole ground that the defendant has become hopelessly insane, at least when such insanity has not been superinduced by a vicious, or reckless course of conduct on the part of defendant</p> <p>Under the seventh clause of Section seven, of the Divorce Act, the discretion of the Court is to be exercised “ for any o'her cause,” but there must be an injured party, to whom only, on application, divorces are granted, to give cause of divorce.</p> <p>The husband, of a wife who has lost her reason, is not an injured party, within the meaning of the statute, because the sufferer is not a wrong doer, and when no wrong has been committed by one party to the marriage contract, it is impossible that there can be, in a legal sense, an injured party.</p> <p>An appeal lies from a judgment under the seventh — discretionary clause — of this act.</p>

<p>A demurrer to evidence admits all facts, and conclusions which the evidence-conduces to prove. The court, in considering .the demurrer, must be liberal in its inferences in favor of the plaintiff, and must consider every fact as proved which a jury might legally, and reasonably have inferred in his favor, avoiding, however, all forced, or violent inferences.</p> <p>Where it is shown that a certificate of stock in an incorporated company has' been assigned, and after 4ts assignment it was surrendered to the company, and other certificates issued for the same stock, to no greater amount than the stock surrendered, in the absence of any proof to the contrary, it will be presumed that the stock was surrendered with the-assent of those to whom it was assigned.</p> <p>A transfer of shares of stock in an incorporated company, without assignment upon the books of the company, is good as between the parties.</p> <p>The provision requiring a transfer of stock on the books of a corporation, is-for the benefit of the corporation, but if the corporation assent to a transfer otherwise than on the books, and by such transfer the persons to whom the stock is transferred become stockholders, the corporation can not object, nor can the stockholder, as long as he is in fact a stockholder.</p> <p>Evidence showing that the holder of a certificate of stock in an incorporated company has never been denied any privilege as a stockholder, and that there has never, at any time, been certificates of shares outstanding, to an amount greater than the authorized capital stock, and that the shares held were issued in lieu of a certificate of shares surrendered will not sustain a charge of over issue of stock.</p> <p>Under the act of the Legislature “ to authorize the construction of water works,” (Acts of Reg. Session 1865, p. 103), it was not necessary that the whole, or any amount of stock should have been taken, before the-organization was completed, and not being required by the act itself, there is no other rule of law requiring it.</p> <p>Under the act authorizing its organization, the water works company couldi take the Central Canal by purchase, and issue stock in payment therefor, but the amount so issued to be consistent with honesty of purpose, should be reasonably proportionate to the value of the canal. .</p> <p>The fact that the canal purchased, and owned by the Water Works Company has no value, does not show that the stock in the corporation is without value.</p> <p>Stock to the amount of $500,000, the full amount authorized to be issued by the Water Works Company, was issued on receiving a conveyance of the Central Central. One-half of this amount of stock was received by the stockholders of the Canal Company, the consideration named in the deed conveying the canal was $200,000, and by the terms of the agreement of purchase the other half was to come back, and did come back to the defendants for their own use:</p> <p>■Meld: That the defendants, and the stockholders in the Canal Company, being the owners of the stock, and parties to the agreement under which it was issued, as long as they held the stock themselves no one could be injured but themselves, by reason of the transaction reducing the value of the stock.</p> <p>The fact that it is stated on the face of a certificate of stock, 11 paid m full of the value of fifty dollars per share,” shows that the shares are not liable to further calls. It can not be held to mean that the corporation has money, or property equal in value to the par value of the stock, and is not a representation that can be relied on by a purchaser as indicating the value of the stock.</p> <p>Fraud may be shown by reason of false representations made by a seller to induce a purchaser to buy shares of stock.</p> <p>'But in the absence of any false representations by which a purchaser is induced to buy shares of stock in an incorporated company, although the stock may have been depreciated in value before the purchase by ■the acts of parties managing the business of the corporation, the purchaser can not recover against such parties.</p>

<p>Warranty — implied.</p> <p>Where a manufacturer agrees to manufacture and furnish any article for a special purpose, and it is supplied and sold for that purpose, the law implies a warranty that it is reasonably fit for that purpose.</p>

<p>Practice—</p> <p>■Surety—</p> <p>Witness—</p> <p>Sustaining a demurrer to a paragraph of answer is not available as error, if the same facts are set up in another paragraph, upon which issue is joined and the cause tried.</p> <p>A plaintiff is not compelled by the provisions of Section 41 of the code, to take a several judgement against one of the defendants before the rights of all are tried.</p> <p>In a suit upon a joint and several promise, while a defendant, who claims to be a surety of the other defendant, is resisting a recovery by setting up defenses going to the merits of the whole case, he cannot complain because the proceeding is not more diligently prosecuted against his oo-defendant.</p> <p>Where a witness is called to prove facts supposed to be favorable to the party calling him, and the witness having testified that they did not exist, the party calling him cannot then introduce testimony to show that the witness had previously made statements tending to show that the facts did exist. The party calling such witness is not precluded from calling other witnesses to prove that such facts do exist.</p>

<p>Record — relation of assignee to—</p> <p>Lien — holder of with what chargeable—</p> <p>Parties — to proceedings of foreclosure—</p> <p>Assignee — known and unknown to record.</p> <p>A party holding a secret, or unknown lien, or the unknown assignee of a known lien on mortgaged property, is chargeable with such diligence as will bring home notice of his lien to the holder of the older mortgage, and a purchaser under a senior mortgage will not be effected by such lien.</p> <p>The rule that all junior incumbrancers must be made parties to the proceedings of foreclosure, or their rights to redeem will not be barred, extends to such incumbrancers as are shown pf record, or of which the party seeking a foreclosure has notice.</p> <p>The assignee of a junior mortgage cannot redeem from a purchaser under a senior mortgage, who has had no notice of such assignment, nor is such purchaser effected by the fact that such unknown assignee was not made a party to the proceedings of foreclosure, for the purchaser is chargeable only with notice of what may be shown of record.</p>

<p>Depositions — notice in.</p> <p>A notice to take depositions requires only that reasonable precision, to inform the opposite party of the time when, and place where to betaken.</p> <p>A notice, therefore, to take depositions at a designated office, is sufficiently certain if, by usage it had come to signify the room that had beer, occupied by a firm as an office, though it was not then used as the office of the parties named in the notice; especially is such notice good if they occupied no other room, jointly, as an office.</p>

<p>Mortgage — assignment of—</p> <p>Mortgagor — rights of — on record—</p> <p>Record — satisfaction of mortgage.</p> <p>Mortgagors have the right to insist that an entry of satisfaction of their mortgage be made on the records in the Eecorder’s office upon tendering payment in full, or upon furnishing sufficient evidence of the cancellation of the mortgage, and where the record does not show that the interest of the mortgagee has been, by assignment, acquired by an assignee, a tender of the amount due to the mortgagee is good, and in suit for a judicial satisfaction the mortgagors are entitled to costs against the assignee, which were occasioned by his own negligence in not providing himself with authority to satisfy the mortgage record on payment of the debt.</p>

<p>Husband — liability of, for medical attendance on wife—</p> <p>Practice — errors, assignment of.</p> <p>A husband is liable for reasonable charges for the services of a physician employed by the wife in her illness; showing such employment, and the necessity of medical attention, form sufficient evidence to establish liability of the husband for such employment.</p> <p>Errors not assigned below, cannot be considered on appeal.</p>

<p>Promissory Note — extension of payment—</p> <p>Foreclosure — attorneys fees in—</p> <p>Attorneys Fees.</p> <p>An agreement to forbear to sue, or to extend the time of payment of an obligation for a limited time, though founded on a sufficient consideration, cannot be pleaded as a release or'bar of an action on such obligation, brought within the time limited. • In such ease the defendant is left to his action for a breach of the agreement.</p> <p>Where an agreement to extend the time of payment of a note is stipulated for an interest thereon that is usurious, such agreement cannot be enforced, nor does it constitute a sufficient consideration unless the interest had been paid for the extension.</p> <p>In a suit for foreclosure, the plaintiff is not entitled as a matter of right. t<> recover attorney’s fees on notes not due.</p>

<p>Railroad Crossing—</p> <p>Evidence—</p> <p>Instructions by Court.</p> <p>A railroad corporation is not only required to construct its tracks at a public crossing, so that they may be reasonably safe to persons driving across the same, but to maintain them in a reasonably safe condition.</p> <p>In such construction, as well as in maintaining them in a safe condition, they are bound only to ordinary care and skill, the rights and duties of corporation and individual being mutual.</p> <p>Evidence of the manner in which said crossings are generally constructed, is proper, as showing proper care and skill, but evidence of a custom of railroad companies in constructing street crossings, will not preclude the inquiry into the fact whether or not a particular crossing was properly constructed, or kept in sufficient repair to make a safe passage way over the railroad.</p> <p>It is not error to refuse any particular instruction, if the substance thereof has been given, or included in instructions given by the Court.</p>

<p>Witness — testimony of, to contract—</p> <p>Contract — instructions of Court on.</p> <p>Where an issue is presented that depends upon the making or revocation of a contract, between one of the parties to a suit, and a third person, a competent witness may testify to what was done and said between the parties to a contract, with reference to the making, or revoking the same, although the other party to the suit may not have been present at the transaction and conversation.</p> <p>It is proper for the Court to instruct the jury as to the terms and legal effect of a written contract which is in evidence.</p>

<p>Transcript — -from Justice, requirements of—</p> <p>Jurisdiction — of Inferior Court.</p> <p>The summons, and officers return thereto, are not required to be copied at length on the Justice's docket. It is sufficient if such transcript shows the fact, that these, inter alia, statutory requirements, giving the Justice jurisdiction over the persons of the parties have been judicially passed upon by him. — Newcomb, J.</p> <p>“Where the jurisdiction of an inferior court depends upon a fact, which • such court is required to ascertain and settle by its decision, such decision is conclusive.</p> <p>Where it appears from the record that the evidence of certain facts, requisite to give an inferior .court jurisdiction, have been adjudged sufficient, a finding and judgment upon such jurisdictional facts cannot be impeached collaterally, hence an answer to a suit on such judgment, that the process was not served by the proper officer, is bad.— Perkins, J.</p>

<p>Practice — answer.</p> <p>Fraud — answer of.</p> <p>An answer of fraud without avering particulars amounting to fraud is bad.</p> <p>A general answer of fraud is not good under the code.</p> <p>An alleged fraudulent grantee of a debtor cannot attack the judgment of his creditor, except for fraud.</p>

<p>Appeal —from Board of Commissioners, when may be taken.</p> <p>Section 81 of the Act creating Boards of Commissioners, is not to be construed as covering all orders, or entries made by the Board on its Becords. An appeal under this section is allowed only from such decisions of the Board as in their nature are judicial, and not where they are purely administrative.</p> <p>An appeal does not lie to this Court from an order of the Board of County Commissioners accepting a bid for stone work on the County Court House, taken by a rival, and unsuccessful bidder.</p>

<p>Pleading — reply, demurrer—</p> <p>Practice — objections, exceptions — special finding, judgment on.</p> <p>Evidence — contract.</p> <p>Where two paragraphs of a reply are the same in legal effect, and no objection is taken to one of them, the defendant is not injured by overruling a demurrer to the other.</p> <p>If the Court, at the request of one of the parties makes a special finding of facts and conclusions of law thereon, the statute requires judgment to be entered in accordance with the conclusions of law, and the only mode of saving objections to the conclusions of law is by entering exceptions to the same. A motion for judgment on the special finding will not present the question; nor will a motion for a new trial.</p> <p>Where A contracted to sell to B all the brick he should make and bum except the last kiln, at certain prices for each kiln, and deliver the same wherever in the city of Indianapolis, B should direct, and after A had burned one kiln he delivered the same to B, who accepted, them on the contract, and before the second kiln was ready for delivery B informed A that if the second kiln had more lime in it than the first, he must get another purchaser for it, but that he wanted to see it before it was sold, that he wanted the good portions of it, but A must get another purchaser for the portion having too much lime, and the second kiln had in fact more lime in it than the first, and that it was not from .any fault or fraud of A that the lime was in the kiln, the lime being in the clay, and B. knowing at the time of the contract the place where the clay to be used was to be obtained, and before B saw the second kiln A sold it to another,</p> <p>Held: That the lime in the brick of the second kiln did not justify the defendant in refusing to take any portion of the brick.</p> <p>Held: That A after having received notice from B, that if the second kiln had more lime in it than the first, he would not take it or that he would only take the good portions of it, might treat the contract as broken by B, and if A chose to waive his right of action against B for the breach, and protect himself from loss by selling to another, be had a right to do so, and B, having thus broken the contract cannot complain</p> <p>Held: That B having given notice that he would not comply with the contract as a whole, he could not, without the consent of A, acquire any rights under the contract by offering to examine the kiln and take the good portions of the brick.</p>

<p>Vacancy — statute construed, legislative will.</p> <p>Judgeship.</p> <p>On the 14th day of March, 1867, A was appointed Judge of the Wayne Circuit Court, under the act of March 11th, 1867, and commissioned to serve until the general October election, 1867. At the October election, 1867, B was elected Judge of said Court, and commissioned as a Circuit Judge. On the 29th day of April, 1869, B died. On the 4th of May, 1869, C was appointed by the Governor, Judge of said Court, and commissioned to serve until the next general election. At the next general election in October, 1870, C was elected, and on the 12th day of November, 1870, commissioned to serve for the term of years to which he may be entitled by virtue of his election, and until his successor should be elected, &c. At the October election in 1872, the voters of “Wayne county again voted for Judge of said Oourt, and D received a majority of the votes. *</p> <p>Held: That 0, who was elected at the general October election in 1870, was entitled to hold the office for the period of four years from the date of his commission, and hence there was no vacancy in said office at the time of the October election in 1872.</p>

<p>Promissory Note — payee, maker, endorser, consideration—</p> <p>Evidence — introduction and order of.</p> <p>Testimony to show fraudulent representations on the part of payees of a note to the maker, is irrelevant and inadmissible against the holder of a note for value, purchased before maturity. Though the maker of a note payable in bank may have a valid defense to it, as against the payees, yet a bona fide endorsee for value may recover upon it. It is only where want of consideration is proved, or its execution was procured by fraud, that the onus of proving value paid, and purchase before maturity, is cast upon the holder.'</p> <p>It is ordinarily within the province of counsel to arrange the order of time for the introduction of evidence, but it is the discretion of the Court, that all causes may be proceeded with, “ speedily and without delay,” to so control the order of proof as to require the observance of the prini ciple of law, that where a fact is necessary to be proved to render subsequent evidence relevant, such fact shall first be established in evidence, without r-eforence to order of time or connection with other testimony. Hence, where in a suit by the endorsee fraud is alleged to have been practiced on the maker of a promissory note, the Court may refuse to hear evidence touching such alleged fraud, until some evidence is given bringing knowledge of it home to the plaintiff, before his purchase of the note.</p>

<p>Contract — -for building, interpretation of — work and material for, part performance of — possession under.</p> <p>Special Finding—</p> <p>Where a written contract for building a h.ouse contained provisions- that the work should be done according to the directions, and instructions of the architect, and that the last payment should only be due when the building was completed, according to the plans, and specifications, to the satisfaction of the owner of the building, and of the ' architect by him employed, and the production of a certificate from the architect to that eífeet; and further, that if any dispute arose in regard to the true meaning of the drawings, and specifications, or the agreement, or as to the quality of the work, or materials, it was to be decided by the architect, whose decision should be final,</p> <p>Held: That the architect had authority to bind the owner of the building by directing such changes, or alterations as were found, in the progress of the work to be beneficial, or necessary.</p> <p>Held: That the agreement to submit matters of dispute to the architect was binding upon the parties.</p> <p>Held: That the owner of the building had a right to demand the certificate of the architect as evidence of the completion of the building, before making the final payment.</p> <p>Held: That if the contractor applies to the architect for the certificate, and he obstinately, or unreasonably refuses to furnish the same, the contractor may establish his right to recover by other evidence.</p> <p>Held: That the production of the certificate may also be waived by the owner of the building, or by mutual agreement of the parties, and such waiver may be shown by direct evidence, or it may be implied from the acts of the parties.</p> <p>Where the contractor sues in such case for work and labor done, and materials furnished in erecting the building, and not upon the special contract, if he makes out a case where he is entitled to recover, notwithstanding the written contract, which is set up in answer, the production of the certificate of the architect, or showing a demand, and • refusal of the same, is not a pre-requisite to his recovery.</p> <p>A part performance of that portion of the contract, dependent upon the production of the certificate of the architect, by .the owner of the building without objection, or protest, tends to show a waiver of the production of the certificate.</p> <p>Where it is shown that the owner of the building, while the work was in progress, accepted a portion of it by taking possession of, and occupying it, and afterwards took possession, and occupied the balance, thu3 deriving benefit from the labor of the contractor, he cannot refuse to pay the reasonable value of the labor done, and for the materials, though the written contract was no,t in all things complied with.</p> <p>Where special findings of a jury, in answer to interrogatories, do not embrace all the issues, and other facts might have been found from the evidence that would sustain the verdict, a motion for judgment on such findings should be overruled.</p>

<p>Error — assignment of-—</p> <p>Exceptions.</p> <p>Though an exception is duly taken to the refusal of the Court to grant a new trial, yet if the ruling of the Court is not assigned for error, the alleged errors accruing on the trial below, and on which the motion for a new trial is based, cannot be considered on appeal.</p> <p>Where it appears from the bill of exceptions, that no evidence was offered to a paragraph made the subject of demurrer, the ruling of the Court on this demurrer cannot be assigned for error, as the party demurring is not injured thereby.</p>

<p>Chose in action.</p> <p>A chose-in-aciicm, or any specific article, other than, money, to operate as payment of a debt, it must be affirmatively shown that it was received by the creditor upon an express agreement that it should so operate.</p> <p>Mo agreement can be implied from the simple reception of a note, acceptance, or other promise by the creditor that such is taken as payment, or extinguishment of an original debt.</p>

<p>Exceptions — bill of—</p> <p>Lien — mechanics.</p> <p>No question is presented on appeal, as to the correctness of any finding, matter of evidence, or ruling, without it shall he brought up by a bill of exceptions.</p> <p>It seems that where notice of a lien shows all existing indebtedness, and is silent as to any credit thereon, proof that a credit was given would be inadmissible.</p>

<p>Costs.</p> <p>Where a suit is commenced in the Superior Court, and the plaintiff shows that he is entitled to recover more than fifty dollars, hut the defendant also shows, that he is entitled to a set-off to an equal amount, and judgment is rendered for the defendant, the costs should he taxed against the plaintiff.</p>

<p>Appeal.</p> <p>An appeal may be taken to General Term, as it may now be taken from the-Circuit, to the Supreme Court, and where it is shown by affidavit to be necessary for the protection of the rights of the parties, unless a bond is filed, proceedings below will not be stayed; but an appeal cannot be-dismissed because a bond is not filed.</p>

<p>'Mortgagor — equity in — party to foreclosure—</p> <p>Statutes — construction—</p> <p>Practice — new trial.</p> <p>A mortgagor conveying his equity of redemption is not a necessary party to the foreclosure, unless it is sought to subject other property belonging to him to the satisfaction of the debt, which the simple foreclosure will not accomplish.</p> <p>The language of Sections 633-5-7-38, 2 Q-. & H., 294-5-6, comprehends as synonymous, the terms — “judgment-debtor, and judgment-defendant ” — and imply the same person within the meaning of the redemption law; and a subsequent purchaser under the mortgagor, in possession of the premises for one year after their sale, is a judgment debtor, and is liable for the rents, and profits in case of non-redemption.</p> <p>It is not error to refuse a new trial upon an affidavit, which contains matter that would not constitute a good defense upon the trial.</p>

<p>Practice—</p> <p>Exceptions—</p> <p>^Suretyship.</p> <p>Indorser.</p> <p>Where there^ is a plea of former adjudication, and it is shown that the issues joined were such that the question presented by the issues in the cause being tried, need not have been passed upon in arriving at the judgment rendered in the former cause, n is competent, to show by a bill of exceptions, containing the evidence, and agieement of the parties filed in the former cause, that the issues now presented were not before tried.</p> <p>Where a judgment is rendered against the makers, and an indorser of a note, without any finding that the indorser was surety for the makers, the indorser stands as a joint judgment-debtor only, and a payment of the judgment-by such indorser, extinguishes the judgment, in so far, at least, that he cannot afterwards have an execution issued for his benefit against the other parties to the judgment.</p> <p>In such case, the judgment plaintiff, after payment by the indorser, has no interest in the judgment that can he sold, or assigned to any one elsej or collected without assignment, for the benefit of any other person. Nor had such indorser any interest in the judgment that he could sell, or assign.</p>

<p>Principal, and Surety — execution against.</p> <p>Execution — how and when may be levied.</p> <p>A joint execution directed, against a principal and surety, is to be levied upon tbe property of both, but it must be satisfied in the order of their relation to tbe suit. If, after exhaüsting the" property of tbe principal, the execution is unsatisfied, the Sheriff may then, in the life time of the execution, subject the property of the surety to the judgment.</p> <p>Property that has passed into the custody of the court in bankruptcy, cannot be levied on by the Sheriff, unless his execution shows a prior lien on the property.</p>

<p>Householder.</p> <p>A married man is not absolved from tbe legal, or moral obligation of providing for his family, by his declared intention of not again living with them. Though he may be living separate, and apart from them, he is still amenable to the law for their support, and is, therefore, a resident householder, within the meaning of the act of exemption, and as such is entitled to claim the privilege of exemption of his property from sale on execution.</p>

<p>Railroads — assessment of, for taxes—</p> <p>Taxes — assessment, when valid.</p> <p>In a suit to enjoin the collection of taxes under Act of 1865, entitled, “An Act to secure a just valuation, and taxation of all railroad property within the State,” &c.</p> <p>Held: That under this act there are hut two instances in which separate pieces of rail^ad property can he listed, and taxed upon their value as pieces of property; one is where the property held by the railroad company is needed and used for railroad purposes: the other is where the assessment is made by a town or city, of railroad buildings, fixtures, and machinery connected therewith, within its limits.</p> <p>In all other cases the individual pieces of property cannot be assessed, but their value is considered within the other facts enumerated in Section 2 of the act, in estimating the value of the road upon which the assessment is to be made, and are to be deemed “ to be embodied in the taxes by the mile of the road.”</p> <p>Taxes, to be valid, must be assessed pursuant to the law authorizing them j the court cannot legalize an illegal assessment, nor make a new one.</p>

<p>Appeal Bond — suit on—</p> <p>Damages — -for rents, Sfc.</p> <p>Plaintiff alleges that defendant remained in possession of property pending an appeal for a judgment for possession, and hy reason thereof plaintiff lost his rents, and profits.</p> <p>Held: That damages for rents accruing after the judgment appealed from was rendered, and. before possession was' obtained by the plaintiff, cannot be recovered in an action on the appeal bond. The conditions of the bond, under the code, do not embrace rents and profits to he accounted as damages, for detention of property during an appeal to a court of error.</p>

<p>Evidence — of character, when in issue.</p> <p>The appellee had judgment against the defendants at Special Term. The suit was for money which the appellee claimed the defendants had unlawfully taken from his person, under such circumstances as to make them guilty of the crime of robbery, or larceny. The defendants below offered evidence of good character for honesty, and integrity at the time of the act complained of, and at the time of the trial. The evidence was excluded, and the defendants appealed.</p> <p>Held: That in civil causes such evidence was inadmissible; that although the acts complained of may be such as to constitute a criminal offense, the character of the parties is not in question, unless it is in issue; and it is only where character is a matter in issue that it ceases to be of a circumstantial nature — in such cases there is no objection to receiving it.</p> <p>Every man must be answerable for his every improper act, and the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties.</p>

<p>Notice — to tenant — -for possession—</p> <p>Pleading — when defective—</p> <p>Statute — construction—</p> <p>Superior Court — -jurisdiction.</p> <p>Complaint against a tenant holding over.</p> <p>Held: That a complaint against a tenant holding over must show that the relation of landlord and tenant existed; that the tenancy has been determined; that the plaintiff has a present right of possession, and it must describe the premises with reasonable certainty.</p> <p>The county is sufficiently identified by locating the property in the city of Indianapolis, and State of Indiana. The State being given, the Court ■will judicially take notice that the city of Indianapolis is in Marion county.</p> <p>If a complaint is good under the act of May 13,1852, concerning the unlawful detention of lands and the recovery thereof, it is unimportant whether it is sufficient under Sec. 595 of the Code.</p> <p>The Superior Court has original jurisdiction in suits against tenants holding over.</p>

<p>Mechanics’ Lien—</p> <p>Notice—</p> <p>Practice.,</p> <p>In an action to enforce a mechanics’ lien, thd notice must be filed within sixty days from the date of the last item of the account for work done or materials furnished, or if a credit be given, from the expiration oi the credit. The debt becomes due ,on the delivery of the materials, f no time is given by contract, when the year within which suit must be brought, commences to run.</p> <p>The law of mechanics’ lien is to give security, not only to the mechanic for a reasonable period, but to subsequent purchasers after that period, and the notice of lien, therefore, should so describe the claim as to inform the public to which class it belongs, whether of claims due, or not due and any ambiguities in such notice will operate to the prejudice of the authors of them, rather than to that of the public.</p> <p>A notice to acquire a mechanics’ lien cannot be reformed, as a mortgage created by the act of the owner can be to make it conform to intention— it must meet the requirements of the Statute.</p> <p>It is discretionary with the Court to permit an answer to be withdrawn, and a demurrer instead to be filed.</p>

<p>Promissory Note — sureties, liability on—</p> <p>Sureties — contribution, between.</p> <p>Suit on a note made by A, and B to (1 and indorsed by C to the plaintiffs. C answers that his co-defendants were the makers of the note, and are primarily liable, and that he is only an accommodation indorser, and that they be first exhausted to pay said note. B answering— denies C’s averments, and avers inter alia, that A is the principal, and that he is a co-surety with C, and that before suit, this defendant paid one-half of said note and costs, and that execution should now be levied on the goods of 0 for the residue.</p> <p>Demurrer by 0 to these answers was overruled.</p> <p>Held: There was nothing material in these answers, but what was clearly admissible under the general denial. The Statute does not authorize the Court to say that the debt shall be first levied of the goods of one, or more of the sureties. The creditor has a right to hold all the sureties for all the debt until it is all paid. The defendants were all liable, and as to the plaintiff, parol evidence was inadmissible to vary the liability which the law attaches to the parties from the position in which their names appear upon the paper.</p> <p>As between -themselves, the rule is different, and the Statute gives parties liable upon paper an easy and convenient remedy for sureties to have their liability, as to other parties, tried and determined.</p> <p>Held: The Statute does not authorize the Court to interfere with, or delay the remedy of the creditor in ordey to settle questions of contribution between sureties. It is only where one surety has paid more than his share, that he has a claim for contribution, there was no error in the ruling of the Court on these demurrers.</p>

<p>Contract — non-performance of-—</p> <p>On a contract of purchase, and sale, neither party can sustain a suit on the agreement for non-performance, without having first performed, or offered to perform, his part of the obligation.</p>

<p>Mortgage — application of rents on—</p> <p>Mortgagee — accounting by.</p> <p>A mortgagor is not hound to account for rents and profits while he is in. possession of the mortgaged premises.</p> <p>A mortgagee must account for the rents and profits, from the time he takes possession of the mortgaged estate, and he will he charged an occupation rent for any portion of it held hy himself. If there be no interest due at the time the mortgagee takes possession, and the annual rents exceed the amount of annual interest payable on the mortgage, such rents will be directed hy the Court, in order that the excess may be applied in sinking the principal.</p> <p>Annual rents are directed in an account of occupation rent, as well as in an account of rents and profits received.</p>

<p>Contract — specific performance—</p> <p>Practice—</p> <p>Pleading.</p> <p>Defendanffiled a general denial, also a special answer, denying compliance of plaintiff with contract, and failure to pay, or tender the sum stipulated, and to execute notes for the balance of purchase money, within a reasonable time, or at any time; that before said suit, said property increased in value, and for that, and other reasons set forth, defendant rescinded, and set aside said alleged contract. Demurrer to this answer overruled, and judgment for defendant. Plaintiff appealed.</p> <p>Held: Thai this paragraph amounts at least to the general denial, and if a special paragraph of answer amounting to the general denial is good on general demurrer — which under our code all demurrers are — then the Court committed no error in overruling the demurrer.</p> <p>Under the code if a special plea, amounting to the general issue, be pleaded with the general issue, objection should be taken to it by motion, not by demurrer.</p>

<p>Promissory Note — extension of payment; forbearance—</p> <p>Sheriff’s Sale — purchasers at, for what held—</p> <p>Assignment of Error — what necessary.</p> <p>A promissory note falling due May 1, 1872, was on that day endorsed. “ This note extended until the first day of September, 1872, at 10 per cent, interest, the payment of the within note assumed by A.” Signed A.</p> <p>In a suit to recover on said agreement, A, the defendant, answered, that he indorsed tho note as surety only, for the maker.</p> <p>Held: An answer that the contract was wholly executed without consideration as to him, A, is had.</p> <p>Any loss, trouble, or disadvantage undergone by, or charge imposed upon him to whom it is made, constitutes a good consideration.</p> <p>It is immaterial whether the party making the promise, in consideration of forbearance, has any direct interest in such indulgence, or will be benefited by the delay incident thereto. It is enough that he requests such forbearance, for the benefit to the debtor will be supposed to extend to the promissor.</p> <p>Purchasers of property at Sheriff’s sale are not held for the value of the property, but for the amount bid.</p> <p>Assigning as error, matters which are only good as reasons for a new trial is useless, and presents no question for review. If such reasons are embodied in a motion for a new trial, an assignment of error in overruling the motion, is all that is neceesary to present the question.</p>

<p>The act of March 10, 1873, increasing the salaries of Circuit Judges from $2,000 to $2,500, and repealing all laws in conflict therewith, which went into effect upon its passage, gave to said Judges the increased salary for the quarter ending March 81, 1873.</p> <p>It is competent for the Legislature to fix the amount that should thereafter be paid for past services as well as for future services. The act of March 10, in repealing the old law, left no other law in force by which these salaries could be paid.</p>

<p>Inn-keeper — liability of.</p> <p>In an aGtion to recover tie value of a watch, and other articles of property-lost while a guest at a hotel.</p> <p>Meld: That though an innkeeper may exonorate himself from liability for the loss of goods of his guests, by showing that the loss occurred without any fault or neglect of himself, or servants, or by negligent conduct of the plaintiff, he must, nevertheless, be held to answer, and is responsible for the conduct of another guest placed in a room already ■occupied, without the consent of the occupant, and recovery may be had for. the value of property so lost.</p>

<p>Constable — levy by—</p> <p>Execution — levy under—</p> <p>Judgment—</p> <p>Venue — change of.</p> <p>Where a constable, in answer to a complaint in replevin, pleads that he levied upon the property, as the property of the plaintiff, to satisfy an execution issued upon a judgment rendered before a Justice of the Peace against the plaintiff, the execution upon which the levy is made is not a written instrument within the meaning of the statute requiring such to be filed with the pleadings., It is but evidence of the facts alleged in the answer, and need not be made a part of the answer.</p> <p>When property has been levied upon, but not sold; and the time for completing the return upon an execution has not arrived, and the execution is still in the hands of the constable, no objection can be taken to the validity of the levy, because the return was not signed by the Constable.</p> <p>If a constable holds an execution, legal on its face in all respects, it is sufficient to authorize a levy, and to justify such levy, it is not necessary for the constable to allege that the Justice of the Peace, who rendered the judgment, had jurisdiction of the cause wherein the judgment was rendered.</p> <p>Where a Court has jurisdiction of the person and of the subject matter of the action, the defendant cannot stand by, and see a judgment rendered against himself, and an execution proper and legal in form issued upon the judgment, and after it has been levied upon his property, attempt by an action of replevin, to have another Court sit for the correction of errors, and reverse the proceedings of the Court that rendered the judgment.</p> <p>The validity of a judgment cannot he enquired into in this collateral way.</p> <p>If a judgment is invalid or void, a party has his remedy by appeal, or other direct proceeding.</p> <p>Applications for a change of venue cannot be repeated without some special cause.</p>

<p>Pleading — amended—</p> <p>Errors.</p> <p>A subsequent pleading, covering the entire ground of action, or defense, contained in the prior pleadings, will be regarded as substituted for such prior pleadings, which are not,to be certified by the Clerk to the Appellate Court.</p> <p>Errors alleged to have occurred on the trial below, cannot be corrected on appeal; the authority of the Court below hearing the cause, shall first be sought before resorting to an Appellate Court.</p>

<p>Injunction — will not lie, against public safety.</p> <p>Where a building has become unfit and unsafe for occupancy, by reason of fire, or inherent defects, making it dangerous in its condition, the fact of a tenant holding an unexpired term of a lease will not restrain the owner, by an injunction, from taking down the walls, and reconstructing the building, in such manner as he may deem best to secure safety, and permanency.</p>

<p>Nuisance — liability for—</p> <p>Common Council.</p> <p>The Common Council cannot, by granting a building permit, thereby authorize the erection of a building, to the injury of person, or property.</p> <p>One who erects a nuisance is liable for its continuance, as for a new nuisance, as long as it continues, and it is not in his power to release him self therefrom by granting it over to another.</p> <p>So where one, who demises his property for the purpose of having it used in such a way as must prove offensive to others, may himself be treated as the author of the mischief.</p> <p>One, who erects a nuisance, and afterwards parts with the real estate upon which it is located, either by conveyance with a warranty or covenant, that amounts to an affirmance of the nuisance, and a grant of its continuance; or leases it on terms by which he derives a benefit, or profit from its continuance, or leases his real estate, receiving rent therefor and knowing, or having reason to believe, that the use of the property for the purpose for which it is leased will prove to be injurious to the property of others, or become a nuisance, will be liable to an action for an injury resulting therefrom.</p> <p>Where the evidence shows the use for which a lumber kiln was erected, the use that had been made of it, and that the lessees thereof were intending to, and did continue to use it in the same way, and for the same purposes as formerly used by the lessor, the jury may reasonably infer that the lessor knew, or had reason to believe that the lessees would continue the use of it in the same place, and that such was their object in leasing the premises, and that if the use of the kiln, at that place, was inherently dangerous, they might find against the lessor, for he could not relieve himself from liability by leasing the real estate, and not making any agreement, covenant, or guaranty to uphold them in the use of the kiln.</p>

<p>Contract — by wife.</p> <p>A contract entered into by the wife, for work, and material to be furnished, unauthorized by the husband, will be held to be ratified by him, if, with a full knowledge of all the facts, he gives no notice of disapproval-, or otherwise seeks to absolve himself from liability within a reasonable time, by repudiating such act done without his authority.</p>

<p>Will — interpretation of-—</p> <p>Descent — laws of—</p> <p>Kindred — degrees of how computed.</p> <p>"Where two provisions in a will are inconsistent with each other, and cannot stand together, the rule that the latter provision must prevail, is only to be applied where there is an invincible repugnancy, and it is impossible to determine which clause the testator intended to prevail.</p> <p>In arriving at the intention of the testator, the entire will is to be examined, and if necessary, words and sentences may be transposed, or even supplied, to make it read as evidently intended, and as near as can be, effect given to the whole instrument.</p> <p>A general disposition, by will, of an estate, will be regarded as subject to a more specific disposition, and it is not important in applying this rule, whether the general, or more specific provision comes first in order.</p> <p>A will should not be construed so as to disinherit an heir, unless the intent to do so is clearly expressed.</p> <p>The Statute of this State regulating descents and the apportionment of estates, covers the entire law of descent, and the common law canons of descent are not in force.</p> <p>Where an intestate leaves him surviving, no widow, no child or children, or descendant of such child or children, no father or mother, no brother or sister, and no descendant of any brother or sister, no grandfather or grandmother, no uncle or aunt in the paternal line, or descendant of any such uncle or aunt, the estate will go to the next of kin.</p> <p>In ascertaining who are next of kin in such case, we are not limited in the line of lineal ascent to that of grandfather and grandmother, but the estate must go to the next of kin, though such kin is found in the line of lineal ascent further removed in degree of kindred than grandfather or grandmother.</p> <p>It is not contemplated by the Statute of descents and the apportionment of estates that two different rules should be followed in computing degrees of kindred, one to be applied in cases of descent of real estate, and the other in the distribution of personal estate.</p> <p>Degrees of kindred under the Statute of descents and apportionment of estates, are to be computed by the rule of the civil law.</p> <p>The great-grandmother of an intestate, by the rule of the civil law, is one degree nearer of kin to the intestate, than a great-uncle or great-aunt.</p> <p>The principle of representation as given in the second section of the Statute of descents, is not applicable to that part of the fifth section of the Statute which provides that in the absence of any of the kindred named in that, and the preceding sections, the estate "shall go to the next of kin in equal degree of consanguinity.” By this latter provision the estate goes to the next of kin who are living at the death of the intestate.</p>

<p>Railroad — track a warning of danger—</p> <p>Negligence — walking on track of railroad, of plaintiff and defendant—</p> <p>City Ordinance — violation of in running locomotives, and trains.</p> <p>A railroad track is of itself, notice, or warning of danger to any foot passenger crossing, or walking thereon. Such track is not constructed for a foot-way, but is to be used for running trains of cars and locomotives, propelled by an agency, and with a momentum that renders such trains and locomotives impossible of instant and complete subjection to the will of those in charge of the same.</p> <p>A person who assumes to walk upon the track of a railroad, is bound to use more care and diligence, and to keep a better lookout for approaching clanger, than if walking upon an ordinary road or foot-way.</p> <p>On approaching a person walking upon the track of a railroad, the engineer, or person in charge of a train, or locomotive, has a right to presume that the person so walking upon the track will get out of the way. The engineer, or persons in charge of the train, must not steal upon him; and if the usual signals of approach are unheeded, and danger imminent, it is their duty to use all means at their command to stop the train and avoid injury, even to a person who is on the track without right.</p> <p>A mere habit of using the tracks of a railroad with the knowledge of the-railroad company, but without invitation from the company, will not lessen the degree of care required of those so using the track.</p> <p>Where the right of a plaintiff to recover, is based on the negligence of the defendant, the plaintiff must he free from negligence contributing to the injury. The right to recover in such case does not depend upon measuring the degrees, or amount of negligence between the plaintiff and the defendant, and ascertaining which was most negligent, or whose negligence contributed most to cause the injury.</p> <p>A person who is walking upon the track of a railroad, or about to step upon such track, must erercise care in looking to see if trains or locomotives are approaching, and a failure to look, under such circumstances, is negligence.</p> <p>The running of a locomotive, or trains of cars, at a rate of speed declared to be unlawful by the ordinance of a city, or running the same backward without a watchman on the rear, contrary to such ordinance, is not, merely on account of the violation of the ordinance, an act indicating, or tending to prove a wilful purpose, or intent to commit an injury, if without the ordinance, the running under such circumstances would only be an act of negligence. The violation of such ordinance is not of itself evidence of anything more than negligence, and is not conclusive evidence of negligence.</p> <p>If an engineer in charge of a locomotive, or train of cars, looks ahead and sees a man walking at the side of the track, it is not his duty to infer that the man will walk into danger in front of his engine when it is approaching near, and giving the usual signal of approach.</p> <p>Where a person walking by the side of a railroad track, heedlessly or negligently steps upon the track in front of an approaching locomotive, he cannot recover unless those in charge of the locomotive saw his peril, or could, by the use of ordinary diligence, have seen it in time to prevent the injury, after it became apparent that he was in danger.</p> <p>(The motion for a new trial was filed in Special Term, and at the request of Judge Newcomb, who heard the cause, the motion was heard by the full bench, and the following opinion rendered by Blair, Judge. — Reporter.)</p>

<p>Bank Stock — taxation of.</p> <p>Under the act of March 4, 1873, repealing so much of the act of March 15, 1867, exempting shares of stock in banks, from municipal taxation, shares of stock in all the banks of this State are taxable for municipal purposes by the authorities of incorporated towns, and cities of the State.</p> <p>The act of Congress, approved J?eb. 10, 1868, places but one limitation on the taxing power of the State, namely, that the shares of stock in national banks shall not be taxed, at a greater rate, than is assessed upon other moneyed capital in the hands of individual citizens of such State.</p>

<p>Sale—</p> <p>Conversion.</p> <p>A purchased from B three casks of wine, but it being of an inferior quality, and not such as represented by B, A refused to receive it, and so notified B. Finally A took the wine from the railroad station, and stored it in his cellar separate from his other stock, subject to B’s ordeT, and again notified B that the wine was there subject to his order,</p> <p>Held: That by B’s acquiescence in A’s refusal to receive the wine, and a subsequent demand therefor by B, left the right of possession in him, and a title to the property until conversion.</p> <p>A conversion by one partner, in the ordinary course of business, and for the benefit of the firm, of property under, and subject to their joint control or custody, renders both liable for the proceeds, regardless of the fact that any other member was ignorant of such conversion.</p>

<p>Default — application to set aside.</p> <p>An application to set aside a default, must particularly set forth the grounds of defense; a mere general denial is not sufficient.</p>

<p>Stock — owner of,\ when entitled to dividend on shares of.</p> <p>On the 14th day of June, 1873, A agreed, at a stipulated price, to sell B 520 shares, of fifty dollars each, of the capital stock of the Indianapolis Bolling Mill Company, at B’s option, to he taken by him at any tim'e on, or before the 14th day of July, 1873. B paid $100 for the option. Before the expiration of the time, on the 14th day of July, 1873, the purchase money was paid, and the certificates of stock assigned to B. • On the 3d day of July, 1873, the Board of Directors of the I. B. M. Co., declared a dividend on the par value of the capital stock, payable on the 1st day of August ensuing. B claimed the dividend on the fehares of his purchase, and sued for their recovery.</p> <p>Held: To entitle the share holder to dividends, he must be the owner of the shares at the time the dividend is declared.</p> <p>It is immaterial when the dividend is payable, it is still a debt to the owner of the shares at the time it is declared, and set apart, and does not pass with a transfer of the shares before the debt becomes due. In selling the shares, he does not sell the debt.</p> <p>After a dividend is declared, the profits constituting the dividend are separate from, and do not pass with the stock.</p>

<p>Witness — opinion of, as evidence—</p> <p>Depositions — notice to take—</p> <p>Continuance — affidavit for.</p> <p>Upon an examination of a witness as to the probable age of a defendant at a former trial, an opinion formed from the physical appearance of the defendant, whether at the time in question he was over, or under twenty-one years of age, is admissible as evidence. The facts stated by the witness, and the opinion formed by him on those facts, are proper matters to be considered, and their effect upon the question at issue is for the Court to determine.</p> <p>A motion for continuance, supported by an affidavit fulfilling- in all formal parts the statutory requirement, is yet insufficient where it fails in other essentials, as in a notice to a distant notary to take depositions, it should show that interrogatories were sent to be propounded to witnesses, or that some other steps had been taken for directing the examination of witnesses to the subject matter in issue, and that he had provided for the fees of the officer before whom they were to be taken, and the officers serving process, else show that he expected their services without compensation. The affidavit should also show proper diligence as to time.</p>

<p>House-holder — defined.</p> <p>In a proceeding supplemental to execution, to subject certain property to the payment of a j udgment, the defendant averred that what he had, had been sot off to him as exempt, he being a house-holder. He testified “ the property (furniture) is all I own; it is in the use of myself, and wife, and little daughter; we occupy rooms in the hotel, and have the furniture in the rooms; we take our meals at the hotel table with other guests; I pay my son-in-law no board; I have nothing to pay with.”</p> <p>Upon this statement of facts, the question turned upon the construction of the meaning of the statute exempting property of house-holders from execution, or what constitutes a house-holder. The Court</p> <p>Held: It is not necessary that the head of the family should own, or rent an entire structure; he may live with his family in a part of a building, in one room of it, and so long as he keeps his family together, as a family, seperate, as a little community from others, he is a householder, and entitled to the benefit of the exemption act.</p> <p>Held: It is not necessary that the family should take their meals in the house in which they reside, nor that rent should he paid for such house, or part thereof, to constitute one a house-holder.</p>

<p>If, in the .purchase of real estate, made upon representations of the seller, where the buyer is without knowledge of the correctness of the representations, a material statement is in fact false, and is uttered for the purpose of inducing the buyer to rely upon the statement as true, and he does so rely and act, and is thereby prejudiced, it has the whole effect of fraud in vitiating the contract, though the person uttering the statement, did not know it to be false, but believed it to be true.</p> <p>One who sells property on his description, must make good, in all things, his statements, and if it b.e untrue in a material point, he is liable for that variance, though occasioned by a mistake, upon the ground that the party selling property is presumed to know whether the representations he makes are true or false.</p> <p>"Where a complaint has one good paragraph, and there is a general finding and judgment upon the complaint, it will be presumed to be upon the good paragraph.</p>

<p>Real Estate — suit to quiet title—</p> <p>Executory Contract.</p> <p>A, purchased certain real estate without knowledge, or notice of sale, made prior, to B, under executory contract, of the same property. B, claims said contract to be in force. A, declares it forfeited by B failing, &c., to pay purchase money, and that said contract was abandoned, and rescinded.</p> <p>Held: That where such contract does not appear to be void on its face, and it not being shown that such lapse of time has occurred, that a Court of equity would necessarily refuse to enforce its execution the question as to a bona fide purchaser, and as to the existence of such circumstances as would defeat its inforcement, must be determined by parol evidence.</p> <p>In such ease the plaintiff is not bound to risk the continuance in life of the witnesses that may furnish that evidence.</p>

<p>Contract — construction of.</p> <p>Where an expression in a written contract is of doubtful meaning, or is capable of different constructions, and in the performance of the contract the parties have mutually acted on a given construction, or one of the parties has knowingly acquiesced' in a construction given by the other, and the acquiescing party has received benefits that would not have been conceded to him if a different construction had been insisted on, the construction thus given to the contract by the parties must, govern in case of a suit upon the contract.</p>

<p>Mortgagor—</p> <p>Mortgagee.</p> <p>An indemnifying mortgage, of real estate, sought to be purchased, contained a provision that whenever any part or portion of the mortgaged lands can be sold by the mortgagor for their fair and adequate value, the mortgagors should release such part of the property, reserving sufficient to secure them for any amount of actual loss they may sustain.</p> <p>About one-half of the mortgaged lands were encumbered by older liens, and the amounts for which the mortgagees were liable, were not ascertained at the time the mortgage was made.</p> <p>Held: That the parties must be presumed to have contracted with reference-to the older lien, and where there is nothing to show that the mortgagees attempted to hold a lien for more than might be justly due them, or that the mortgagor ever attempted to derive any benefit from, the right to sell the real estate, or to show that either mortgagor, or mortgagees attempted, or intended that the proceeds, if any, of the real estate had been sold, should be applied to any other purpose than the payment of the mortgage debts, the mortgage cannot be held fraudulent by reason of the clause in reference to the sale of the mortgaged property.</p> <p>"Whether a mortgage is given with a fraudulent intent, is a question of fact to be determined by the Court, and the jury trying the cause.</p>

<p>Appeal — notice to parties in—</p> <p>Superior Court — appeal in.</p> <p>The rule of the statute regulating appeals from the Circuit to the Supreme-Court, governs in like eases, from the Special to the General Term of the Superior Court.</p> <p>In an appeal to the General Term, where there are several defendants, all are required to be made parties, in the manner required by the statute, else the appeal will be dismissed.</p>

<p>Forfeiture — -for non-payment of rent, demand—</p> <p>Lease — demand under, forfeiture of—</p> <p>Special Finding.</p> <p>"Where a forfeiture for non-payment of rent is to be established, a strict common law demand, both as to time, and place, must be shown, unless dispensed with by agreement of the parties, or by statute. “We have no statute dispensing with such demand. • To establish a good demand at common law, in such case, there must be a demand of the exact amount of rent due.</p> <p>"Where a special finding of facts does not cover all the matters at issue, the proper remedy is an application for a venire de novo.</p> <p>In equity, a clause providing for the forfeiture of a lease, on the ground of non-payment of rent, is usually regarded as a security for the landlord, and a Court, in the exercise of its equity powers, will in general relieve the tenant from a forfeiture, “where it has been incurred by neglecting to pay any certain sum of money, the interest upon which can be calculated with certainty, and the landlord thereby compensated for the inconvenience he may have sustained by the tenant withholding payment.”</p>

<p>Jurisdiction of Court.</p> <p>Judgment— Credit to be given to.</p> <p>Removal of Causes to Federal Court.</p> <p>Nil Debit — Plea of.</p> <p>The plea of nil debit can not be pleaded to a suit upon the judgment of a court of another State.</p> <p>If a court has jurisdiction of the parties and of the subject-matter of the suit, and proceeds to render judgment, though errors and irregularities are committed, full faith and credit must be given to that judgment in all collateral proceedings thereon in other courts.</p> <p>It is not "enough that the court had jurisdiction at the commencement of the action, and during a portion of-the proceedings; the jurisdiction must continue to the end. If it is clearly shown, that at any stage of the proceedings the jurisdiction of the court was lost, all subsequent proceedings would be void.</p> <p>Under the act of Congress for the removal of causes from State to United States Courts, whenever an application for such removal is made, and ..it is shown to be one embraced by the act, and that the party seeking the removal has complied with the required conditions, it is the duty of the State court to proceed no further in the suit. All other proceedings are coram nonjudice. A judgment thereafter rendered in the State court would be without authority, and void.</p>