Volume 101 — Indiana Reports

<p>Demurrer to Evidence. — Practice.—By demurring to the evidence, the party demurring withdraws from the consideration of the court whatever is favorable to himself, admits as true all facts against him of which there is any evidence, and consents that whatever reasonable inferences can shall be drawn from the evidence against him.</p> <p>.‘Same. — Upon such demurrer, the court will infer from the evidence every conclusion that a jury could reasonably have inferred.</p> <p>Same. — Objections to Evidence. — By demux’ring to the evidence, the party demurring waives all objections to its admissibility.</p> <p>.Same. — Motion for New Trial.— Waiver. — When there has been a demurrer to the evidence, a motion for a new trial presents no question.</p> <p>Same. — Defects in Pleadings. — Defects in pleadings will not be considered as a reason for sustaining a demurrer to the evidence.</p> <p>Mortgage. — Foreclosure.—Parties.—Title.—Parties claiming an interest in mortgaged land are proper parties defendants in an action to foreclose, and, when made parties, they are bound to set up their title or claim.</p> <p>Pleading. — Practice.—Motion in Arrest. — Supreme Court. —A complaint, to which no demurrer has been filed, will not be held bad on a motion in arrest, or on assignment in the Supreme Court that it does not state suffi■cient facts, simply because of containing statements of conclusions.</p> <p>Same. — Assignment of Error. — Answer.—An assignment of error in the Supreme Court, that the court below erred in sustaining a demurrer to a paragraph of answer, does not call in question the sufficiency of the complaint.</p> <p>Mobtgage.— Complaint to Foreclose. — Subsequent Purchaser. — Record.—Time.— Generally, a complaint to foreclose a mortgage against a subsequent purchaser from the mortgagor must allege that the mortgage was recorded at the place and time prescribed by the statute.</p> <p>Same. — Notice.—Piivity.—The registry of a deed or mortgage is notice only to those who claim through or under the grantor or mortgagor.</p> <p>Same. — School Fwnd Mortgage. — Parties, holding or claiming through or under the mortgagor in a school fund mortgage, are bound to take notice of the mortgage, although not recorded as required by the general registry laws.</p> <p>Same. — Description.—Presumption. — Acknowledgment. — It appearing upon the face of a mortgage and the certificate of acknowledgment, that the mortgage was executed in this State, between residents thereof, the presumption, in the absence of anything in the instrument to the contrary, is, that the description was intended for lands in this State.</p> <p>Same. — Auditor.—Loan by, to Self. — A school fund mortgage is not void as to the State because the county auditor has made the loan to himself.</p> <p>Same. — Interest.—Such mortgage draws the same interest after as before maturity.</p> <p>Same. — Sale without Appraisement. — Upon the foreclosure of a school fund mortgage, the court may order the land sold without appraisement.</p> <p>Same.- — Priority of Lien. — Taxes.—A sale of land for taxes which accrued after the execution- of a school fund mortgage, is subject to the mortgage lien.</p> <p>Same. — Entry of Satisfaction. — Recorder.—Auditor.—The county recorder can enter satisfaction of a school fund mortgage before foreclosure, only upon an endorsement by the county auditor that the same has been fully paid.</p> <p>Same. — Clerk.—School Fwnd. — Foreclosure.—Evidence.—For the purpose of showing that the law was complied with in making a loan of the school fund, the certificate by the clerk and recorder, and the affidavit of the mortgagor, required by the statute, are competent evidence, and, being competent for this purpose, a general objection to such evidence is properly overruled.</p> <p>Same. — Title of Mortgagor. — Presumption of Ownership. — A mortgagor is presumed to be, at the time, the owner of the land mortgaged, until something to the contrary appears.</p> <p>Same. — Possession by Mortgagor. — The possession of the land by the mortgagor, at the time of executing the mortgage, is prima facie sufficient to show that he was the owner.</p> <p>Same. — Parol Evidence. — Title to real estate may- be proved by parol, where such evidence is not objected to.</p> <p>Same. — Title from Same Source. — When two persons derive title from the same third person, it is, at least, prima facie sufficient to prove derivation from him without proving his title.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Jay Circuit Court.</p>

<p>From the Bartholomew Circuit Court.</p>

<p>Office and Offices.— Township Trustee. — Election.— Certificate of. — The right to the office of township trustee is ultimately decided by the ballots, and not upon the certificate of election, and the eligible candidate receiving the highest number of votes cast is entitled to the office.</p> <p>Election. — Quo Warranto. — Right to Try Title to Office. — A defendant in a quo warranto proceeding is not bound to confine the controversy to the-single question as to the effect of the certificate of the election officers, but has a right to assert, by answer, his title to the office, and to show . that he was the eligible candidate who received the highest number of votes; nor is he obliged, when proceeded against by an information in the nature of a quowarranlo, to yield up the office and resort to the statutory remedy for trying title to office, where a “ re-count” of the votes shows that he was duly elected.</p> <p>Same. — Evidence.—Ballots.—It is proper on the trial of an issue joined on an information in the nature of a quo warranto, to try the title to an office, to introduce in evidence the ballots cast at the election.</p> <p>Same. — ■Entries of Public Officers. — It is proper to give in evidence the entries of public officers made in the discharge of public duties, and this rule applies to an endorsement by the inspector of the election made upon a bag containing ballots.</p> <p>Same. — “Re-Count” of Voles. — The statute authorizes the circuit court to order a “ re-count ” of ballots cast at an election.</p> <p>Same. — Evidence.—Certificate of Commissioners Appointed to Recount Ballots.— The certificate of the commissioners appointed by the circuit court to recount the ballots cast at an election is competent evidence.</p>

<p>Erom the-Vermillion Circuit Court.</p>

<p>Husband and Wine. — Decedents’ Estates. — Bents from, Wife’s Land, Husband’s Liability for. — Trusts.—Acquiescence.—Where a husband, during a. long series of years, receives and applies the rents of the wife’s real estate to the common use of the family, without objection by her, and under circumstances showing no intention on the part of either that he shall be charged therewith, she can not, after his death, maintain a claim therefor against his estate; nor can she, where such rents have-been invested by the husband, with her knowledge, in other real estate, for the benefit of the family, after acquiescing in such use for a period of more than twenty years, claim him as her trustee to the extent of such investment, but she will be deemed to have waived all right to. follow such rents into the property.</p>

<p>Office and Officer. — Gratuitous Service. — Where official duties, to which no compensation is attached, are imposed upon a public officer, they must be performed gratuitously.</p> <p>Sheriff. — Compensation for Keeping Jail and Caring for Prisoners. — The act regulating the fees of sheriffs was intended by the Legislature to he a complete fee bill, prescribing, so far as could be, the services for which they should receive compensation, and the fees designated therein are to be deemed a full remuneration for all services incident to the office, and such officer is entitled to no extra compensation for keeping the county jail and caring for prisoners.</p> <p>Same. — Care of Insane Persons. — Presumption.—There being no statute authorizing the circuit court to commit insane persons, as such, to the county jail, the presumption is that they were duly committed for some offence, and that they were received and held as other prisoners, and for their care the sheriff can claim no extra compensation.</p>

<p>From the Henry Circuit Court.</p>

<p>False Imprisonment. — Pleading.—A complaint, alleging that the defendants locked the plaintiff up in a room, and by threats of violence, with weapons in hand, compelled him to confess that he had made and violated a certain promise of marriage, and extorted from him an agreement to pay a sum of money for the breach thereof, sufficiently charges false imprisonment.</p> <p>Same. — Res Adjudícala. — Breach of Promise. — In such case, an answer, alleging that an action had been brought by one of the defendants against the plaintiff for a breach of promise of marriage, wherein the matters and things complained of in the present suit had been fully adjudicated and determined, is insufficient, since the matter of the false imprisonment could not have been adjudicated in such former action.</p> <p>Same. — Demurrer.—Defect of Form. — Harmless Error. — To such answer, a demurrer, alleging that the same did not “ state facts sufficient to constitute a bar to the plaintiff’s complaint,” can not be sustained over the objection of the defendant. Yet, when it appears that the error in sustaining such a demurrer is harmless, such error will not justify a reversal of the final judgment.</p>

<p>'CRlMraAL Law. — Abortion.—Indictment.—Duplicity.—Where an indictment is not entirely formal in all its parts, but may be construed as merely averring specifically that the death of the woman was caused by the efforts of the defendant to procure an abortion, such indictment is not bad for duplicity in charging abortion and also involuntary manslaughter in the same count.</p> <p>Same. — Evidence.—Order of Proofs. — -Corpus Delicti. — To sustain a criminal charge, proof of two distinct propositions must be made, first, that the act constituting the essence of the offence was done, and, second, that it was done by the person charged. In regular order, evidence tending to implicate the party on trial ought not to be introduced until the principal fact, the corpus delicti, has been established, and to sustain a conviction it ought to be proved beyond a reasonable doubt.</p> <p>Same. — In a prosecution for procuring an abortion resulting in the death of the pregnant woman, it is the procurement of the miscarriage that constitutes the corpus delicti.</p>

<p>Constitutional Law. — Board of County Commissioners. — Inferior Courts.— Jurisdiction. — Appeals.—Under section 1, of article 7, of our State Constitution of 1851 (section 161, E. S. 1881), it was competent for the General Assembly to provide by law that the board of commissioners of each county should constitute a court of inferior jurisdiction, and to clothe such court, as has been done, with original jurisdiction and judicial power over claims and accounts against the corporate county, and other matters of local interest, providing for appeals from its decisions to courts of superior jurisdiction.</p> <p>Practice. — Claim against County. — Jurisdiction of County Board. — Appeal.— Bes Adjudicóla. — Under sections 5758, 5759 and 5760, E. S. 1881, in force since May 31st, 1879, the board of commissioners of the county has exclusive original jurisdiction of any claim against such county, and the decision of such board either for or against such claim, if not appealed' from as provided by law, is final and conclusive, and the adjudication, may be pleaded in bar of another suit on such claim.</p>

<p>Pbactice. — Burden of Proof. — Special Finding. — A party who has the burden of proof can not recover unless all the facts essential to a recovery appear in the special finding.</p> <p>Landloed and Tenant. —Crops.—Trespasser.—Notice.—Purchaser Pendente Lite. — The relation of landlord and tenant can not be created by an entry upon land without right, and the person who so enters can not take away crops sown by him, and one who enters during pending litigation, is chargeable with notice and is bound by the judgment rendered.</p> <p>Same. — Dismissal of Action. — Judgment.—One who assumes to acquire an interest in land while an appeal is pending, is bound by the judgment rendered on appeal, and the dismissal of the action upon its return to the trial court does not relieve him.</p> <p>Pbactice. — Judgment Correcting Flrror in Special Finding. —Harmless Error.— Where an error in a special finding is corrected by the final judgment, the error is rendered harmless.</p>

<p>Drainage.— Withdrawal of Part of Remonstrants. — Where, in a drainage proceeding, a number of persons join in a remonstrance, any of them may afterwards withdraw therefrom, and thereby escape liability for costs thereafter created in consequence of the remonstrance; but such action will not defeat the remonstrance, nor impair or defeat, in any manner, the right of the other remonstrants to proceed as if such withdrawal had not occurred.</p> <p>Same. — Verification of Remonstrance. — The statute does not require that the remonstrance shall be personally verified by the remonstrants, but it may he verified by them, or by some person having authority to act for them, and if verified by one or more, but not by all of the remonstrants, either personally or by agent, such verification will be treated and regarded as made by all, and if, after the remonstrance is filed, those who verified it withdraw therefrom, such act will not operate as a withdrawal of the verification, but this will remain unaffected thereby.</p> <p>Same. — Time Fixed for Report of Commissioners. — Statute Construed. — The provision of the statute, R. S. 1881, section 4275, requiring the court to designate a certain time for the drainage commissioners to report, is mandatory and should be strictly enforced, but the court may, for good cause shown, extend the time first fixed to another definite day.</p> <p>Same. — Objection must he Made Below. — An objection that the report was not filed at the time fixed comes too late when made for the first time in the Supreme Court.</p> <p>Same. — Effect of Belay of Commissioners’ Report on Right of Remonstrants.— Where the commissioners’ report is not filed at the time fixed, and a remonstrance is offered within the statutory period after the actual filing of the report, the court should permit such remonstrance to be filed.</p> <p>Same. — Where it is shown by affidavit that the wrongful action of the commissioners prevented the filing of a remonstrance at an earlier period, the court should permit its filing at the time presented.</p> <p>Same. — Appeal.—Presumption as to Name of Parties. — Where, in proceedings for the establishment of a ditch, parties signed a remonstrance as “ Hosmer & Hildreth,” and were afterwards assessed, and an appeal was taken by Stephen R. Hosmer and Charles C. Hildreth.</p> <p>Held, that it should be assumed that the appellants were, or represented, the same parties as those assessed, and therefore had a right to appeal.</p> <p>Same.— Waiver.- — Supreme Court. — Where a motion is made to dismiss an appeal because co-remonstrants were not joined therein, an agreement by the parties to submit the cause, without insisting that the others should be made co-parties, waives the objection.</p>

<p>From the Benton Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>Landlord and Tenant. — Léase.—Election of Tenant as to Longer Term.— Bescission. — -Where a tenant) who is in possession of farm premises under a lease for one year, with the privilege of three, prior to the expiration of the year notifies the lessor that he has rented another farm, and will at once vacate the premises held under such lease, and thereupon the former arrangement is mutually rescinded, such tenant thereby elects not to hold such premises longer than one year, and the tenancy is terminated at that time.</p> <p>Same. — Occupancy.—•Notice.—In such case, the mere occupancy of the land at and after the expiration of the year can not be deemed an election to hold it for three years, in the face of an express notification of a different election, and after the opposite party has acted upon the same by leasing the land to other parties.</p> <p>Beal Estate. — Action to Recover. — Landlord and Tenant. — Damages.—Eroidence. — -Where a tenant unlawfully detains possession of farm land during the season for sowing wheat, and so prevents the owner from using it for a wheat crop, in an action by the latter for possession and damages, evidence that the land is better adapted to wheat than corn is admissible.</p> <p>Same. — Rent.—In such case, evidence as to the rental value of the house situate upon the land, per month, during the time of the detention, is admissible.</p> <p>•Same. — Proof of Value of Land. — -Proof of the value of the land, in such case, during the time of its detention, is not necessary in order to entitle the plaintiff to recover.</p> <p>Witness. - Credibility. — Cross-Examination. — Any fact tending to impair the credibility of a witness, by showing his interest or bias, may be elicited on cross-examination.</p> <p>Instructions. — Harmless Error. — Practice.—There is no available error in a refusal to give an instruction to the jury which is predicated upon a fact which their answers to interrogatories show does not exist.</p> <p>Pleadins. — Construction.—In construing a pleading with reference to an allegation of fact, all its averments relating thereto will be considered.</p> <p>Practice. — Pleading.—Harmless Error. — An error in overruling a demurrer to one paragraph of complaint will not reverse the judgment where it affirmatively appears that the finding was upon another paragraph.</p>

<p>.From the Tippecanoe Superior Court.</p>

<p>Husband and Wife. — Mortgage of Land Held by Entireties.— Wife's Contract of Suretyship. — Construction of Statute. — Where land is held by husband and wife as tenants by entireties, and where, since September 19th, 1881, the date of the taking effect of section 5119, R. S. 1881, the husband and wife executed a mortgage on such land to secure the payment of an individual debt of the husband, such mortgage, as to the wife, is a contract of suretyship, which she can not, under said section, enter into, and it is void both as to her and her husband.</p>

<p>From the Harrison Circuit Court.</p>

<p>From the Clay Circuit Court.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Johnson Circuit Court.</p>

<p>From the Wayne Circuit Court.</p>

<p>Marriage. — Presumption.—Bights of Ghildren. — The presumption in favor of marriage and the legitimacy of children is- one of the strongest known to the law, and in favor of a child asserting its legitimacy this presumption applies with peculiar force.</p> <p>Same. — Solemnization.— Violation of Statute Beqmring License. — No ceremony or solemnization is necessary to validate a marriage, and a marriage is not rendered void by a failure to comply with a statute requiring the parties to obtain a licenág, though such failure may subject them to a criminal prosecution.</p> <p>Same. — Consent.— What Constitutes. — Where there is an agreement to form a present matrimonial connection, followed by cohabitation as husband and wife, no particular form of words is essential, provided it appears that the .engagement was entered into from pure motives, and that the connection was not entered into from bad motives or for the mere purpose of sexual commerce.</p> <p>Same. — Evidence.—Legitimacy of Children. — Where a child asserts its legitimacy, and another child, in order to obtain property, asserts its own illegitimacy, it will require strong evidence to overcome the presumption of marriage, and where the evidence shows that the engagement of the parents was entered into from good motives and in the belief that there was no impediment to the marriage, and is followed by continued and open cohabitation as husband and wife after all impediments are removed, and by the execution of deeds as husband and wife, the presumption will not be overborne by the general statement that the parties were not married, but such statement will be construed to mean simply that there was no formal marriage ceremony.</p>

<p>Erom the Steuben Circuit Court.</p>

<p>Pleading. — Complaint.—Demurrer.—Motion to Make Certain. — Practice.— Where the facts alleged in a complaint constitute a substantially good cause of action against the defendant, it is sufficient on demurrer and on motion to make more certain, although it might, with propriety, have been ordered to be made more certain.</p> <p>Promissory Note. — indorsement. — Warranty of Title and Genuineness.— Estoppel. — One who transfers a negotiable instrument by endorsement, warrants the title and genuineness of the paper, and, when sued upon his contract of endorsement, he is estopped from denying’the existence, legality or validity of the contract which he transfers, for the purpose of defeating his own liability thereon.</p> <p>Same. — Alteration.—Principal and Surety. — Sufficiency of Evidence. — A. W. and E. W. were private bankers, and as such loaned to D. certain money for which he executed his note to E. W., cashier, with K. and A. and another as sureties. At its maturity the note was 'renewed with K. and A. only as sureties. When it was about due again, D. procured A. W. to prepare a new note in further renewal, payable to the latter. D.. and K. signed this note, and D. then returned it to A. W., at his bank, and told A. he would find it there awaiting his signature. A. went to the bank, but told A. W. that he was unwilling to longer continue as co-surety with K., but was willing to endorse the note as surety for both D. and K. A. W. thereupon explained how that could be done, and acting under the impression that A. wished and was authorized to have the change made, drew his pen across the name “A. W.” and wrote A.’s above it, and the latter then wrote his name across the back. When the note became due E. W. brought suit thereon against D. and K., who denied the execution of the note and succeeded in their defence. In a subsequent action by A. W. against A. on his endorsement, there was a finding and judgment against the latter.</p> <p>Held, that upon the above evidence the finding will not be disturbed.</p>

<p>From the Hancock Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>' Principal and Surety. — Release by Surrender of Collateral Securities.— Where a creditor has notice of the relation of principal and surety, he holds collateral securities in trust for the benefit of the surety, and the release of such securities releases the surety to the extent of the whole value thereof.</p> <p>Same. — Assignment of Fees Due Debtor. — Surrender.—Where a creditor receives an assignment of fees due the debtor as a public officer, and agrees to collect them and apply the proceeds to the payment of his claim, and, without the consent of the surety, he allows the debtor to collect and appropriate the proceeds, the surety is proportionally released.</p> <p>.Same. — Diligence of Creditor. — Upon a failure of the creditor to use reasonable diligence to make collateral securities available, he is responsible to the surety for consequent loss, and without notice from the surety. And this does not violate the rule that mere passive negligence will not release the surety from obligation to pay on default.</p> <p>.Same. — Indemnifying a Surety. — Where a principal pays to the surety sufficient money to indemnify him, the surety holds the money for the benefit of the creditor, to whom he occupies the position of a debtor.</p>

<p>From the Switzerland Circuit Court.</p>

<p>Gbavel Boad, — Taxes in Aid of. — County Commissioners. — Special Session.— Injunction. — An order, made by a board of commissioners at a special session not legally convened, levying a special tax to aid in the construction of a gravel road, is illegal and void, and the collection thereof may be enjoined at the suit of a taxpayer.</p> <p>Same. — Statute Construed. — The sessions of the board of commissioners, pursuant to section 4441, B. S. 1881, are held for the sole purpose of receiving from the school trustees the reports therein provided for and taking action thereon, and the board has no power to transact any other business.</p>

<p>Will. — Life-Estate. — Remainder.— Title.— Judgment Lien. — A will directed that after the termination of a life-estate in the surviving widow, the executor should sell the testator’s real estate, and divide the proceeds, one-tenth to each of the testator’s ten children. During the life . of the widow, a creditor of one of the children recovered judgments against him. After the death of the widow, the administrator with the will annexed sold the real estate under the power in the will.</p> <p>Held, that on the death of the testator, the title to the land vested at once in the children, subject to the widow’s life-estate, and the executor’s power of sale under the will, and that the judgments were liens upon the one-tentli interest of the judgment defendant.</p> <p>Held, also, that the liens followed the fund in the hands of the administrator, and became liens thereon superior to any claim'of the judgment defendant or his grantee, subsequent to the judgment.</p>

<p>From the Jay Circuit Court.</p>

<p>From the Shelby Circuit Court.</p>

<p>Subety. — Subrogation.—Equities of Surety on Appeal Bond Against Purchasers. — A surety on an appeal bond has a right to be subrogated to the lien of the ’judgment appealed from and paid by him, and his equities are superior to those of a purchaser in good faith who buys the land on which the judgment is a lien after the execütion of the appeal bond.</p> <p>Same. — Appeal Bond. — Effect of. — The undertaking of the surety in an appeal bond to pay the judgment does not cut off his right to subrogation, and persons who buy after the execution of the bond are chargeable with notice of his right to subrogation. • •</p>

<p>Beal -Estate. — Reservation in Deed. — Agreement to Refund Price. — Measure of Damages. — Where, in deeds of conveyance to separate tracts of land, but which adjoin each other, made at different times, there is a clause reserving minerals, the right of way thereto, and the right to take and use any or all of said land for purposes convenient for mining and transportation, the grantor agreeing to pay actual damages to improvements and to “ refund the price paid for so much of said land as may be so taken or used, with interest,” the measure of damages for the taking of a part of each tract is to be determined by ascertaining what ratio the value of the part so taken bore,'at the time of the conveyance, to the value of the whole of the tract from which it was taken, and upon a proportionate part of the price of such tract computing interest to the time of the trial; and the whole damages for the land taken is determined by adding the damages for the parts so taken from the several tracts.</p>

<p>Mabbied Woman. — Mortgage of her Beal Estate to Seewre Husband’s Debt.— Under the statute, B. S. 1881, section 5119, a married woman can not execute a binding mortgage upon her real estate to secure her husband’s debt.</p> <p>Witness. — Contradictory Statements.— Evidence of for Impeachment Only.— The contradictory statements of a witness, introduced on cross-examination to impeach him, can only be considered for that purpose, and can not be regarded as substantial proof of the facts in dispute between the parties.</p> <p>■Same. — The contradictory statements of a husband, in the absence of his wife, on a former trial between other parties, about the property for which the note and mortgage in suit were given, while competent for the purpose of impeachment, are not evidence against the wife in this suit.</p>

<p>From tlie Grant Circuit Court.</p>

<p>Railroad. — Killing Stock. — Complaint.—“Sufficiently Fenced.” — In an action under the statute, against a railroad company for killing stock, a complaint averring that the railroad track was not “ sufficiently fenced ” at the place where the animals got on the track and were injured and killed, sufficiently alleges that the track was not “ securely fenced,” as required by the statute, and is good on demurrer.</p> <p>Supreme Court.— Weigh of Eoidenee, — Where there is evidence tending to support the verdict, the Supreme Court will not disturb it on the weight of the evidence.</p>

<p>From the Shelby Circuit Court.</p>

<p>Prosecuting Attorney. — Residence.—Judicial Circuit.— Constitutional Law. —Under sections 9 and 11 of article 7 of the Constitution of this State, of 1851, the prosecuting attorney, like the judge of each judicial circuit, is required to reside within his circuit.</p> <p>Same. — Judicial Circuits. — Legislative Power and Discretion. — Constitutional Restriction. — The General Assembly has the power, in its discretion, to divide a judicial circuit at anytime during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the restrictions that the Legislature can not, by any legislation, abridge the official terms of either of such officers, nor deprive either of them of a judicial circuit, wherein he may serve out the constitutional term for which he was. elected. Section 5 of the act of February 25th, 1885 (Acts 1885, p. 29), in so far as it relates to the office of prosecuting attorney, is unconstitutional and void.</p>

<p>Special Finding. — Motion lo Malee More Specific. — Additional Findings.— Venire de Novo. — Appeal.—Supreme Court. — Practice.—Where an appeal is taken to the Supreme Court, and the judgment is reversed upon the appellant’s exceptions to conclusions of law drawn from special findings, to which findings the adverse party made no objection, the latter can not, upon the remanding of the cause to the trial court, obtain the benefit of a new trial indirectly by a motion to make the findings more specific, and for leave to introduce further evidence upon matters in regard to which additional findings were sought, nor is he entitled to a venire de novo.</p> <p>Same. — Leaving Issue Undetermined. — Where a special finding of facts leaves some issue undetermined, such issue will be regarded as not proved by the party having the burden of proof.</p> <p>Same. — Motion for New Trial. — If there is evidence of a fact which the court ought to have found, but did not, the remedy is by a motion for a new trial on the ground that the finding is contrary to the evidence.</p> <p>Same. — Supreme Court. — Presumption.—Where the evidence is not in the record, the Supreme Court will presume that all the facts proved on the trial were found by the court in its special finding.</p> <p>Assignment op Error. — Joint Assignment. — Practice.—A joint assignment of error presents no question upon any ruling against one party individually.</p> <p>Partition. — Mortgage Lien. — Judgment.—Where partition is made of land upon which there is a purchase-money mortgage, the parties take their respective interests subject to it, without any declaration in the judgment to that effect.</p> <p>Same. — Widow.—Interest in Land Alienated by Husband. — Improvements by Alienee. — In a proceeding by a widow to have her interest in land, alienated by her husband alone, set apart to her, such interest is to be determined by the value of the land at the time of partition, excluding all the increased value from the improvements actually made by the alienee, and leaving the widow the benefit of any increase of value arising from circumstances unconnected with such improvements.</p> <p>Same. — Exception to Confirmation of Report of Commissioners. — Practice.-—-A mere' exception to the confirmation of the report of commissioners in partition presents no question as to their duty in making allowance for improvements.</p>

<p>Erom the Warren Circuit Court.</p>

<p>Garnishee. — Liability of. — A garnishee, from the time of the service of the summons upon him, is accountable to the plaintiff in the action for the amount of money, property or credits in his hands, or due and owing from him to the defendant.</p> <p>Same. — Gonversion of Securities after Summons. — Where a bank, summoned as garnishee, after the service of summons, converts and disposes of collateral securities held by it, the burden is upon it to account to the plaintiff and to show that it has properly discharged its duty as custodian of such securities.</p>

<p>From the Warren Circuit Court.</p>

<p>From the Tipton. Circuit Court.</p>

<p>Mortgage. — Indemnity. — Foreclosure. — Breach of Condition. — Pleading.— Complaint. — A complaint to foreclose a mortgage to indemnify a surety, containing an agreement to pay the debt and to keep the surety unharmed as such, which assigns for breach a failure to so pay and save-the plaintiff unharmed, and averring that the plaintiff was compelled to and did pay, is good without alleging a failure to repay the plaintiff.</p> <p>Same. — Foreclosure.—Ownership of Mortgaged Property. — Parties.—Bankruptcy. —Answer in Bar. — An answer in bar to a complaint to foreclose a mortgage, that some of the lands were not owned by the defendant, hut were- and are the property of M. who is not a defendant, is bad on demurrer; so, also, an answer that the mortgagor had been adjudged a bankrupt and discharged after the cause of action accrued.</p> <p>Same. — Statute of limitations. — A suit to foreclose a mortgage is not barred by the statute of limitations until the lapse of twenty years.</p> <p>Same. — Junior Mortgagee. — Improvements.'—■’Where a senior mortgage has-been foreclosed without making the junior mortgagee a party, and the-land sold under the decree, the junior mortgagee whose mortgage was-recorded is not bound to redeem, or offer to do so, but may sue the purchaser to foreclose, and in such case the purchaser can not claim for improvements or taxes paid.</p> <p>Same. — Marshalling Securities. — In such case, if the rights of the defendant would require that the securities be marshalled, the complaint being silent as to any facts requiring it, the defendant should by counterclaim allege such facts and pray relief.</p> <p>Practice. — Motion by Defendant to Compel Plaintiff to Enlarge Prayer for Be- ' lief.' — -A motion by a sole defendant, after issues are formed, to compel the plaintiff to enlarge his prayer for relief, comes too late, and is unwarranted at any time.</p>

<p>County Commissioners. — Claims Against County. — Exclusive Original Jurisdiction of County Board. —Repeal of Act by Implication. — The act of ] 852 (section 5771, ft. S. 1881), providing that a claimant might either appeal from the decision of the board of county commissioners disallowing his claim, or bring an original action against the county, was repealed by implication by the act of 1879 (Acts 1879, p. 106), and the only manner in which the circuit court can acquire jurisdiction of such a claim, whatever its nature, is by appeal from a decision of the board.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Evidence. — Harmless Error. — The admission of improper evidence is harmless, where it appears that there was other undisputed evidence given clearly proving the only fact upon which the improper evidence could have borne.</p> <p>Gijabdian and Wasd. — Final Report.— Discharge.— Record. — Evidence.— Payment. — A final report of a guardian showing a sum in his hands due the wards, with a prayer to be discharged, followed by an order approving the report and discharging the guardian, is no evidence that he paid the money.</p> <p>Same. — Liability of Sureties. — Where a guardian is discharged witli money of the ward in his hands, which has never been accounted for or paid, and some years later is re-appointed, and thereafter accounts only for other moneys received during the second appointment, the sureties on the first bond are liable.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>Pleading. — Reference to Another Paragraph. — Supreme Court. — Where, in the Supreme Court, no question is made upon the pleadings, and the question to be decided in that court relates to the sufficiency of the evidence, the insufficiency of a paragraph of pleading, because of its reference to and adoption of part of the allegations of another paragraph, will not avail the appellant.</p> <p>Mortgage. — Foreclosure. — Description. — Extrinsic Facts. • — • Where insufficiency of the description of land in a mortgage may be aided, and foreclosure may be authorized, without reformation, by showing extrinsic facts, such extrinsic matter must be such as does not contradict the mortgage or produce a description of other property than that described therein. It must merely explain the description in the mortgage, and point out the property by the means of identification indicated in the mortgage.</p> <p>Same. — Construction of Description of Premises. — The part of a deed which describes the premises conveyed or mortgaged should be liberally construed, with a view to make the deed available.</p> <p>Same. — Complaint.—Single Cause of Action. — A mortgage is a single cause of action, and in a complaint to foreclose it, however many notes or instalments it secures, a single paragraph only is necessary.</p>

<p>Fleading. — Demurrer.-—Incapacity to Sue. — A demurrer to a complaint for tiie second statutory cause, “ that the plaintiff has not legal capacity to sue,” has reference only to some legal disability of the plaintiff, such as infancy or idiocy, and not to the fact that the complaint fails to show a right of action in sucli plaintiff.</p> <p>Same. — Demurrer for Want of Facts. — Cause of Action in Plaintiff. — A demurrer to the complaint for the fifth statutory cause (section 339, R. S, 1881) calls in question not only the sufficiency oí the' facts stated in the complaint to constitute a cause of action, but the right of the plaintiff to maintain the action.</p> <p>Person of Unsound Mind. — Annulment of Marriage. — Incapable Party.— Guardian. — Complaint.—Under section 1025, R. S. 1881, when either of the parties to a marriage is incapable, from unsoundness of mind or want of understanding, of contracting such marriage, a suit for the annulment of such marriage can be maintained upon a complaint in the name ■only of the incapable party, and not in the name of his or her guardian.</p>

<p>Drainage. — Statute Construed. — The act of 1881 concerning drainage, B. S. 1881, sections 4273-4284, was amended, but not repealed, by the act of 1883, but the latter controls the proceedings after it took effect.</p> <p>Same. — Complaint.—Exhibits.—Under the act of 1881 the assessment made by the commissioner charged with the construction of the work constitutes a lien on the land, and a copy thereof must be exhibited with the complaint; but where the amendatory act of 1883 was in force when the court acted upon the report of the commissioners, that report as approved and confirmed or modified by the court must be the exhibit, and in any case the notice recorded is not the proper exhibit.</p>

<p>From the Cass Circuit Court.</p>

<p>From the Jay Circuit Court.</p>

<p>Bill op Exceptions. — Short-Hand Reporter. — Where a bill of exceptions purports to contain the evidence, and it appears in the form of a shorthand report written out, with the clerk’s certificate that the manuscript was filed in his office, “furnished by I. K., short-hand reporter of said court,” there is a substantial compliance with the statute upon the subject.</p> <p>Husband and Wipe. — Trust and Trustee. — Creditor’s Bill. — Where a husband receives money from his wife’s mother to be invested in lands for the wife, and without her knowledge or consent takes title in his own name and holds it thirty-three years, and then, when in debt, puts the title in the wife, having, during that time, paid the taxes and by his labor cleared and improved the land, equity will not subject it to the payment of his debts.</p>

<p>Judicial Knowledge. — Counties.—The courts of a State take judicial notice of the geography of its counties, their boundaries and the location of towns therein.</p> <p>Pbactice. — Pleading.—Complaint.—Arrest of Judgment. — Where, by intendment, a necessary fact not averred may be supplied, a complaint will he held good on motion in arrest of judgment.</p>

<p>Adoption op Childben. — Order of Court — Fraud of Adoptive ChMd — A. complaint seeking to have an order of court granting the prayer of a petition for the adoption of a child, and containing the averment, “ that at the time of said adoption said defendant” (the adoptive child) /'was eighteen years of age, and knew that said Preston Brown” (the adoptive father) “was a person of unsound mind, and that so knowing, and for the purpose of becoming the heir of said Preston Brown, and securiug the property of said Brown, he gave his consent to said adoption, and permitted said adoption be made,” does not show such fraud as will vitiate the order of the court.</p> <p>Same. — Judgment Ordering Adoption. — Collateral Attach. — A judgment of a court of competent jurisdiction, ordering the adoption of a child, fixes its status, is conclusive, and can not be collaterally attacked.</p> <p>Same. — Insanity of Adoptive Father. — A judgment upon the petition of a - person of unsound mind, praying the adoption of a child, is not void, and can only be set aside for cause.</p> <p>Same. — Bemedy of Natural Heirs. — Equity.—Diligence.—Where natural heirs seek to set aside an order for the adoption of^a child, their remedy is in equity; they must proceed promptly, and a delay of ten years will be fatal to their suit.</p>

<p>Partition. — Descents.—Husband and Wife. — Abandonment.—To a petition by a surviving husband for partition of lands of which the wife died seized, an answer that before and at her death he had abandoned her without cause, making no provision for her support, is good on demurrer under section 2448, B. S. 1881.</p> <p>Evidence. — •Practice.—Supreme. Court. — Error Compensatory. — A party, upon whose objection evidence admissible for either party has been excluded, will not be heard by the Supreme Court to complain of a subsequent exclusion of like evidence offered by him.</p>

<p>From the Carroll Circuit Court.</p>

<p>Pbactice. — Deposition.—Continuance.—Diligence.—Where a witness resides in another State, it is the duty of a party to take his deposition, and if he fails to do this he can not secure a continuance upon the ground that the witness promised to be in attendance at the trial, but violated his promise.</p> <p>■Same. — Harmless Error. — -Where a party applies for a continuance upon the ground that a witness is absent, but it appears that on the trial the witness was present and testified, the error in refusing the continuance is a harmless one.</p> <p>Same. — Nero Trial. — Newly Discovered Evidence. — One who seeks a new trial on the ground of newly discovered evidence must rebut all presumptions against him, and where a witness is subpoenaed but fails to attend, it is the duty of the party to show that he took steps to secure his attendance by compulsory process.</p> <p>Pastaedy.- — Evidence.—It is proper to permit the relatrix, in a prosecution under the statute regulating proceedings in bastardy cases, to prove .that the defendant was frequently in her company.</p>

<p>Drainage. — Assessment.—Commissioner.—Complaint.—‘Relator’ —Where suit is brought under section 4, Acts 1883, p. 178, to enforce a ditch assessment, it is not necessary for the complaint to allege that the commissioner had determined to bring suit. And if the complaint shows beyond question that the suit is in the name of the State, for the use of the commissioner, to enforce a ditch assessment, the mere fact that the commissioner has styled himself “ relator ” therein does not change the character of the action, or impair the legal effect of material averments.</p> <p>Same. — Delivery of Copies of Petition and Order of Reference. — Presumption.— The delivery by the clerk of copies of the petition and order of reference to the commissioners of drainage is not jurisdictional, and the statute conclusively presumes it to have been done, after the assessments have been confirmed and the work established; and the fact can not be disputed by an answer.</p> <p>Same. — Effect of Default. — Under section 383, R. S. 1881, a default does not admit the amount claimed to be due ; it merely admits the material and traversable averments of the complaint, and thatsomething is due the plaintiff, leaving the amount to be established by proof, and this applies to defaults in suits for enforcing ditch assessments.</p> <p>Pbactice. — Demurrer.—Failure lo Plead Over. — If a party fails to plead over after a demurrer is overruled, judgment should be entered as upon default, and the interposition of a defective answer, to which a demurrer was sustained, is a failure to plead over, and the case should thereafter proceed as though no answer had been interposed.</p>

<p>Erom the Marion Superior Court.</p>

<p>From the Jasper Circuit Court.</p>

<p>From the Tippecanoe Circuit Court.</p>

<p>Judicial Sale. — Protection of Purchaser where Judgment is Reversed. — Statute Construed. — Ejectment.—Section 669, E. S. 1881, protects purchasers at judicial sales by virtue of judgments afterwards reversed, but not a purchaser from one who was a successful party to a judgment in ejectment afterwards reversed.</p> <p>Same. —Appeal.—Notice.—Judgment.—Effect of Reversal. — A party purchasing lands, relying upon a judgment in favor of his vendor in ejectment, must take notice of the right of appeal, and is, therefore, subject to the risk of such appeal and its result.</p>

<p>From the Howard Circuit Court.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Madison Circuit Court.</p>

<p>From the .Clay Circuit Court.</p>

<p>Insurance. — Mortgage Clause.- — ■Change of Ownership. — Increase of Hazard.— Commencement of Proceeding to Foreclose. — Notice.—The mere commencement of a proceeding to foreclose a mortgage, without notice to the-insurer, is not of itself such a “change of ownership or increase of hazard ” as will avoid a contract of insurance made for the benefit of the mortgagee, within the meaning of a stipulation in the mortgage clause of the policy for notice from such mortgagee of a change of ownership or increase of hazard.</p>

<p>From the Knox Circuit Court.</p>

<p>From the Knox Circuit Court.</p>

<p>From the Grant Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>From the Warren Circuit Court.</p>

<p>Drainage. — Report of Commissioners. — Expense and Benefits. — Under section. 2 of the act of March 8tb, 1883 (Acts 1883, p. 173), the commissioners of drainage are only required to report that the estimated expense of the proposed drain will be less than the supposed benefits, and the difference between a total expense of $2,855 and aggregate benefits of $2,-912 is sufficient.</p> <p>Same. — Practice.—Sup-eme Court. — An objection to the confirmation of the report of commissioners of drainage can not be raised for the first time in the Supreme Court.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Benton Circuit Court.</p>

<p>From the Carroll Circuit Court.</p>

<p>Demurrer to Evidence. — Practice.—Effect, of Failure to Prove an Essential Fact. — A party who has not the burden of proof may demur to the evidence, and if there is an entire failure to prove one fact essential to the existence of the cause of action, the demurrer should be sustained.</p> <p>Negiigence. — Contrihutorry Negligence. — Burden of Proof. — Where aplaintff sues to recover for an injury to his property occasioned by the negligence of another, the burden is on him to show that his own negligence did not contribute to the injury.</p> <p>Same. — Railroads.—Killing Cattle. — Where there is no order of the board of county commissioners allowing stock to run at large, the owner can not recover from a railroad company for cattle killed upon a public crossing.</p> <p>Same. — Matter of Law. — Where there is no evidence from which it can be inferred that there was an order of the board of commissioners allowing stock to run at large, the court may, as matter of law, conclusively infer negligence.</p>

<p>Peactioe. — Joint Demurrer. — A joint demurrer to a pleading consisting of two or more paragraphs should be overruled if any of such paragraphs be good.</p> <p>Mechanic’s Lien. — Personal Diability to Sub-Contractor. — The person against whom, under section 5295, E. S. 1881, personal liability for a claim in favor of a sub-contractor furnishing materials for a building might be obtained through notice, and against whom the action provided for in that section could be brought, was the owner of a building for which materials were so furnished and in which they were used; and one not such an owner was not subject to be so .made liable though he were personally liable with such owner to the original contractor.</p> <p>Same. — Several Buildings Separately Owned. — The owner of one of two buildings for which materials were furnished by a sub-contractor could not, through such notice, be rendered personally liable for the materials furnished for the other building separately owned by another person ; and where a sub-contractor furnished for two buildings so separately owned materials which were used in said buildings, no distinction between the buildings being made in the furnishing of the materials or in the subcontractor’s claim therefor or his notice, no personal liability under said statute for such claim, or any part thereof, could be enforced by notice to and suit against one of such separate owners alone.</p> <p>Peactioe. — Special Finding. — Motion for New Trial. — In considering an exception to the conclusion of law in a special finding, the Supreme Court treats the statement of facts in the finding as containing all the material facts shown by the evidence. The failure of the court to state all such facts may be reached by motion for a new trial, assigning that the finding is not sustained by sufficient evidence.</p>

<p>'Sheriff’s Sale. — Statute of Frauds.- — Where it appears in a special finding that a sheriff, at the time of a sale of land by him, on execution, wrote and signed a certificate of sale to the purchaser, it will be presumed by the Supreme Court that such certificate conformed to the statute and was, therefore, sufficient to take the sale out of the statute of frauds.</p> <p>Same.— Voidable Sale. — Where a sheriff sells land on execution, and there is delay, not by agreement, in the payment of the purchase-money, which is afterward paid, and the certificate of sale is then delivered by the sheriff to the purchaser, the sale is valid as to persons who have not acquired intervening rights, though before such consummation voidable for want of compliance with the statute of frauds.</p> <p>■Same. — Inadequacy of Price.— Collateral Proceeding. — Where land sold by a sheriff on execution was, at the time of the sale, subject to judgment liens, the owners of which were entitled to redeem from such sale, it was treated as not void because of inadequacy of price in a collateral suit brought by the holder of such a lien.</p> <p>•Same. — Equal Liens. — Priority Through Diligence. — Where a person becomes the owner of land, and judgments theretofore existing against him thus at once become liens on the land, the liens are equal; but the one of the holders of .such liens who first causes execution on his judgment to be issued and levied on such land, thereby obtains a lien superior to those of other judgments, the owners of which may, as junior judgment * creditors, redeem from the sale under such execution.</p> <p>Same. — Bankruptcy.—A judgment lien may be enforced by a sale of the property upon which it is a lien, after the bankruptcy of the judgment debtor, if execution under such judgment was levied on such property before such bankruptcy.</p> <p>:Same.— Assignee’s Conveyance. — Merger.—Where a judgment debtor whose land had been sold on execution became a bankrupt during the year for redemption from such sale, his right to redeem passed to his assignee in bankruptcy; and where, without redeeming, the assignee sold and conveyed such land subject to liens thereon to the holder of the sheriff’s certificate of sale, who bought of the sheriff and of the assignee, not in trust for the judgment debtor but to protect his own interest and without fraud, the title derived under the sheriff’s sale was not merged in a title so acquired from said assignee, so as to prevent such pur•chaser from completing his title under the sheriff’s sale, at the expiration of the year for redemption, by taking the sheriff’s deed.</p>

<p>From the St.t Joseph Circuit Court.</p>

<p>Contbact. — Principal and Agent. — Commissions.—The appellant and the appellee entered into a written contract on the 7th day of July, 1880, wherein the former agreed to pay the latter three per cent, commission for selling real estate; subsequently a verbal contract was made, wherein it was agreed that the appellee should enter the service of the appellant at a compensation of one dollar and twenty-five cents per day, but there was evidence showing that the written contract was not modified or abrogated ; and that the compensation stipulated in the verbal contract was for managing appellant’s general business.</p> <p>Held, that the verbal contract did not necessarily supersede the original written agreement, and prevent the agent from recovering commissions for services performed under it.</p>

<p>From the Tippecanoe Circuit Court.</p>

<p>From the Marion Circuit Court.</p>

<p>Practice. — Judgment nn Pleadings. — Rule to Answer. — Where the parties by agreement submit a cause to the court for trial, a plaintiff who has not asked and obtained a rule to answer can not, after a finding by the court, successfully move for a judgment on the pleadings.</p> <p>■Same. — Sight of Trial Gourt to Change Suling on Demurrer. — A trial court may change a ruling on demurrer before trial, and the plaintiff can not complain of the action of the court in setting aside a ruling against him on a demurrer to the complaint and entering one in his favor.</p> <p>■Constable. — Execution.—Protection of Officer by Writ. — -A constable is protected by a writ regular on its face and issued by a court of competent jurisdiction.</p> <p>Beflevict. — Execution Defendant. — An execution defendant can not maintain an action to recover personal property seized under an execution, except in cases where it affirmatively appears that the property was exempt from execution.</p>

<p>From the Harrison Circuit Court.</p>

<p>Free Turnpike. — Appeal.—Proof of Nwmber of Petitioners. — On an appeal to the circuit court from an order of the board of county commissioners for the making of a free turnpike, in a proceeding under section 5091, et seq., R. S. 1881, the proceeding, stands for trial de novo in, the circuit court, and upon such trial the burden is on the petitioners for the improvement to prove that when said order was made by said, board, the petition had been signed by the proper number of persons, as required by section 5095, R. S. 1881.</p> <p>Same. — Appeal Bond. — Time of Filing.- — -Such an order having been made-by the board of county commissioners on the 7th of June, an appeal bond was filed and approved on the 7th of the next month.</p> <p>Held, that the bond was filed within thirty days after the decision and in proper time.</p>

<p>From the Montgomery Circuit Court.</p>

<p>Feactice.— Using BiU, of Exceptions on Former Trial as Evidence. — Motion for Judgment. — Where, upon a trial of issues of fact, the evidence consisted of a bill of exceptions containing the evidence introduced on a former trial of such issues, together with a written agreement as to additional facts, and the finding was for the defendant,</p> <p>Held, that a motion would not lie for judgment for the plaintiff, upon the ground that the evidence was written and sustained the complaint, and that'no defence was proved.</p> <p>•Same. — Supreme Court. — Conflicting Testimony. — -The Supreme Court can not weigh conflicting testimony, whatever the form in which it may be presented, but, having regard to the burden of proof, will sustain the decision of the trial court upon the evidence, where it in any degree tends to sustain such decision.</p>

<p>From the Greene Circuit Court.</p>

<p>Drainage. — Might of Property Owner not Assessed with Benefits or Damages to Demonstrate. — A property owner whose land will be injured by the construction of a ditch has a right to appear and remonstrate, although no damages are assessed in his favor, and although no benefits are assessed, against his land.</p>

<p>Pleading. — Parol Promise. — -Cause of Action.- — Sufficiency of Complaint. — Demurrer. — In declaring upon a parol promise to pay or repay money upon the happening of a certain event, the complaint is bad upon demurrer for the want of sufficient facts, unless it be averred therein that such event has happened, as it will fail to state an existing cause of action.</p> <p>Same. — Consideration.—So, also, in declaring upon such parol promise, the complaint is insufficient on demurrer, if it fail to show that the promise sued on is supported by a sufficient legal consideration.</p> <p>Same.— Voluntary Assignment for Benefit of Creditors.- — Trust Estate. — Suit by Assignee. — Exhibit.—In a suit by an assignee in a voluntary assignment for the benefit of creditors, for the recovery of a part of the trust estate, he must allege that the deed of assignment to him has been duly recorded in the recorder’s office of the proper county, and must file a copy of such deed as an exhibit; otherwise his complaint must be held bad on demurrer for the want of sufficient facts.</p>

<p>From the Pulaski Circuit Court.</p>

<p>Feaud. — Transfer of Property by Failing Debtor. — Attachment.—Replevin.— Possession. — Where a fraudulent transfer of personal property by a failing debtor is made the ground of attachment proceedings by creditors, and such ground is sustained, such attaching creditors are entitled to possession of such property as against the debtor and his vendee.</p> <p>Same. — Judgment for Value. — A judgment in favor of the attachment plaintiffs for the value of the property, in case a return can not be had, is authorized by the statute.</p> <p>Same. — Rights of Fraudulent Vendee. — The fraudulent vendee of a failing debtor is not entitled to receive, out of the property, money paid by him in such transaction, even where it has gone to bona fide creditors, as the law will leave parties who have been convicted of fraud where it finds them.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Hendricks Circuit Court.</p>

<p>From the Gibson Circuit Court.</p>

<p>From the Starke Circuit Court.</p>

<p>From the Wayne Superior Court.</p>

<p>From the Vermillion Circuit Court.</p>

<p>From the Hendricks Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>.DitAnsrAGE. — Orly.—Drainage Commissioners. — The cities of this State have exclusive jurisdiction of the matter of drainage within their limits, and there is no authority for the construction of drains in cities by drainage commissioners, under the direction of the circuit court.</p>

<p>From the Vigo Circuit Court.</p>

<p>Sheriff. — Compensation for Keeping Jail. — Beyond the compensation fixed by statute for boarding, receiving and discharging prisoners, a sheriff is not entitled to pay for services in keeping the county jail.</p> <p>¡Same. — Not Liable for Bent for Jail Besidence. — A sheriff is not bound to pay rent for the part of the jail building occupied by him as a residence.</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Shelby Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>Practice. — Injunction.—Omission from Decord of Motion to Dissohe. — Sxvpreme Court. — In the absence from the record of a motion to dissolve an injunction, the Supreme Court will not review the ruling of the trial court thereon.</p> <p>Same. — Discretion of Court. — Where a demurrer to a complaint for an injunction, and a motion to dissolve the temporary injunction, are pending at the same time, it is discretionary with the trial court as to which it will first rule upon, and the exercise of this discretion will not be reviewed in the Supreme Court.</p>

<p>Constitutional Law. — Statutes.—Natural Right. — Whether a statute encroaches upon natural rights of the citizen is a legislative and not a judicial question, and courts can not overthrow a statute upon the ground 'that it encroaches on natural rights.</p> <p>Same. — Legislative Power. — The only limitations upon the power oí the Legislature are those imposed by the State Constitution, the Federal Constitution and the treaties and acts of Congress adopted and enacted under it.</p> <p>Same. — Title of Acts of Legislature. — The title, “An act concerning public offences and their punishment,” is sufficiently comprehensive to include all crimes and misdemeanors.</p> <p>Same. — Intoxicating Liguors. — License.—The statute prohibiting the sale of intoxicating liquor between the hours of eleven o’clock P. M., and five o’clock A. M., is constitutional, and applies to licensed retailers of intoxicating liquor.</p> <p>Statutes. — Construction.—Judicial Knowledge. — Abbreviations.—Courts judicially know the meaning of abbreviations ordinarily employed and the usual method of computing time.</p> <p>Same. — Time, Compulation of. — Time is reckoned by following the hours forward, and is so reckoned as to make the period a consecutive one, unless there is something in the statute indicating a different method. The provision, “between the hours of eleven o’clock P. M. and five o’clock A. M.,” means the period intervening between eleven o’clock night and five o’clock morning of the succeeding day.</p> <p>Same. — Criminal Law. — A provision in a statute, prescribing a penalty of fine and imprisonment against one who does a designated act, is a sufficient declaration that the prohibited act is unlawful.</p> <p>Same. — Definition of Ch-ime.- — It is sufficient if an offence is so defined as to convey to the mind of a person of ordinary intelligence adequate information of the evil intended to be prohibited.</p>

<p>Pleading. — Sufficiency of Complaint. — Mistake of Law. — -As a general nile, the courts will afford no relief against mistakes of law; hut where the complaint shows that the defendant is an attorney at law, skilled and learned in the law, and that the plaintiff’s mistake of law was induced by the misrepresentations of the defendant, and was known to and taken advantage of by him, such complaint states a cause of action, good even on demurrer, and good, beyond doubt, when questioned for the first time, after verdict and judgment, in the Supreme Court.</p> <p>Same. — Special Answ&\ — Confession and Avoidance. — Argumentative Lenial.— Issue. — Where a special or affirmative answer does not confess and avoid the plaintiff’s cause of action, hut alleges facts which, if true, are utterly inconsistent with the truth of material facts averred in the complaint, such answer is an argumentative denial of such material averments of the complaint, and puts them in issue, and the burden of such issue is on the plaintiff.</p> <p>Practice. — Burden of Issue. — Open and Close. — Mr or. — On the trial the party on whom rests the burden of the issue has the right to open and close the case to the jury, and the refusal of such right is an available error for the reversal of the judgment.</p> <p>Judgment. — Statutory Lien. — Extension of Time. — Under section 608, R. S. 3881, the statutory lien of all final judgments, in the Supreme and circuit courts, for the recovery of money or costs, upon real estate and chattels real liable to execution, will terminate generally at the expiration of ten years after the rendition thereof; but such statutory lien may be extended beyond the period of ten years, by appeal or injunction, by death of the judgment defendant, or by agreement of the parties entered of record. Where, therefore, the only fact alleged or proved is that more than ten years have elapsed since the rendition of the judgment, there is no error in refusing to instruct the jury that such judgment is not a lien or cloud upon the title to real estate.</p>

<p>From the Grant Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Notice. — Name.—Signs.—A father, who had been in business for a number of years, sold out to his son, who continued the business; no change was made in the names or signs about the place of business, and the son bought goods of the appellants, who had formerly dealt with his father, but the sellers had notice that the father had retired, and that the son had succeeded him.</p> <p>Held, that the father was not liable for the goods sold to the son.</p>

<p>Drainage. — Petition and Verification. — Motion to Dismiss. — Error.—Where the petition for drainage and the verification thereof substantially follow the forms given in section 4284, R. S. 1881, there is no error in overruling a motion to dismiss the petition and proceedings for want of formality in the verification.</p> <p>Practice. — Motions and Affidavits. — BUI of Exceptions. — Record.—Appeal.-—• On appeal to the Supreme Court, motions and affidavits constitute no part of the record, unless they are made so either by a bill of exceptions or by an order of the trial court; and where it is attempted to make motions or affidavits a part of the record by bill of exceptions, they must be set out at length in such bill or be referred to therein as properly appearing elsewhere in the record.</p>

<p>From th6 Gibson Circuit Court. .</p>

<p>Railroads.' — Killing Cattle. — Evidence.—It is not necessary lor the plaintiff' in an action against a railroad company for killing cattle, to prove-by positive evidence the place where the cattle entered, but it is sufficient if facts are proved from which the place of entry can be inferred,.</p> <p>Same. — Bwrden of Proof. — The burden of proof, in an action against a railroad company for killing- cattle, is on the plaintiff to show that the-place where the cattle entered was not securely fenced; but where the-railroad company asserts that the place was one which it was not bound to fence, then the burden is on it to establish that fact.</p> <p>Same. — Private Crossings. — Fences.—The general rule is that a railroad' company is bound to fence private crossings, but this duty is not owing-to the person for whose benefit the crossing is maintained.</p>

<p>From the Monroe Circuit Court.</p>

<p>From the Greene Circuit Court.</p>