Volume 102 — Indiana Reports

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

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

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

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

<p>Pleading. — Contract.—Naked Averment of Mistake. — A naked averment of mistake, without seeking a reformation of the contract, can not avoid the defence created by the agreement.</p> <p>Same. — Reformation Should be Asked in Complaint. — Semble, that where the correction of a mistake in a written agreement is necessary to enable the plaintiff to recover, reformation should be asked in the complaint, and not by reply.</p> <p>Practice. — Pleading.—Harmless Error. — It is not an available error to sustain a demurrer to a paragraph of answer setting up facts specially which are admissible under the general denial, also pleaded.</p> <p>Same. — Where two paragraphs of reply, substantially alike, are directed to the same paragraph of answer, it is not an available error to sustain a demurrer to one, even if good.</p> <p>Same. — Appeal.—Where, on appeal, it appears from the record that the appellant, the plaintiff below, was not entitled to recover anything, rulings of the trial court, though erroueous, will be considered harmless and not available for the reversal of the judgment.</p>

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

<p>Real Estate, Action to Recover. — Tenants in Common. — Emotion.— Undivided Interest. — Right to Recover. — One tenant in common who is wrongfully evicted by a cotenant may maintain an action of ejectment to recover his undivided share of the land.</p> <p>Same. — Statute of Limitations. — In actions for the recovery of the possession of real estate, the statutory limitation is twenty years.</p>

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

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

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

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

<p>Deed. — Mule in Shelley’s Case. — Conveyance lo Class. — Construction of words-“Present Heirs." — -A deed with an introductory clause reading thus: “ This indenture wituesseth, that Isaiah Ferguson, in consideration of natural love and affection which he bears to his daughter Nancy West and her present heirs, and the sum of five dollars, the receipt whereof is hereby acknowledged, does give, grant and convey to thesaid Nancy West. and her present heirs forever,” and a habendum reading as follows: “ To have and to hold the same to the said Nancy West and her present heirs, forever,” does not, at common law, vest a fee in the grantee expressly named therein.</p> <p>Same. — Pee in Lands. — How Created at Common Law. — At common law an estate in fee could only be created by the use of the term “-heirs ” in its-technical sense, and when there were superadded words clearly showing that the word was not used in its technical sense, an estate in fee was not. vested in the grantee, nor could a fee tail be created without' the employment of the word “heirs” in its technical signification.</p> <p>Same. — Conveyance to Several.— What Estates Grantees Take. — Where an estate is granted to several persons, and their i-espective interests are not. specifically designated, they take jointly.</p>

<p>Appeal. — Decedents’ Estates. — Mandate.— An application by an administratrix to sell real estate was resisted by a surviving partner of the intestate, upon the ground that the property belonged to the partnership, and its proceeds were necessary to' pay debts of the firm, whereupon, by agreement, the sale was decreed and an order entered that so much of the purchase-money as was -necjssary to discharge the firm liabilities should be paid by the administratrix to the surviving partner. Upon refusal of the administratrix to so pay, the surviving partner instituted, in the same court, a proceeding in form for mandamus to compel payment. The proceedings were treated as in mandamus and ended in a final order compelling the payment.</p> <p>Held, that, notwithstanding the novel form of the proceeding, its substance invoked only the probate jurisdiction of the court in the matter of the estate, and an appeal from the final order not taken within the time required by sections 2454-2457, B. S. 1881, should be dismissed.</p>

<p>■County Commissioner. — Term of Office of Successor Filling Vacancy. — Where a person who has been elected to and has entered upon a full three-years’ term of the office of county commissioner resigns said office, his appointed successor will hold, by virtue of his appointment, for such portion of the remainder of such full term as may elapse before the next general election, and a person elected at such next general election as successor in such vacancy, said full term not then having expired, will hold, by virtue of his election,' not for three years from his said election, but for the unexpired portion of such resigned officer’s full term.</p> <p>Same. — Election.—Defective Notice.- — Where at a general election a vacancy in the office of county commissioner is to be filled, and there is not also to be an election of a successor for a full term, the fact that the election notice does not»show that an unexpired term of such office is to be filled at the election, will not aflect the elected commissioner’s tenure of office.</p> <p>Same.' — ■ Certificate of Election. — Collateral Attack. — In a proceeding by information to oust an incumbent of an office holding over after the expiration of his term, in favor of another holding a certificate of election as successor of the former, the defendant can not attack such certificate by showing that said holder was not elected to such office, and that a third person was elected.</p> <p>Special Verdict. — Facts not Found. — Facts not found in a special verdict are to be regarded as not proved by the party having the burden of proof.</p>

<p>Bond. — Diqwidated Damages, Complaint for. — Evidence.—In a suit on a bond which provides, that in case of breach “ the penalty therein written shall be taken and deemed as liquidated damages,” it is not necessary to aver in the complaint, nor to prove on the trial, any amount of damages actually sustained, but on proof of the execution of the bond, and a breach of it, the plaintiff is entitled to recover the liquidated damages named in the bond.</p> <p>Same. — In a complaint on a bond conditioned for the payment of liquidated damages in case of breach, averments, that by the condition of the bond the penalty was to become due as liquidated damages, that the condition of the bond has been broken, “ whereby an action hath accrued to the plaintiff against the defendant to recover the said sum ol $1,500, for which he demands judgment,” etc., are equivalent to an allegation that the penalty is due, or'that the defendant is indebted in that amount.</p> <p>Instruction. — Credibility of Witness. — Province of Jury. — An instruction, “ that the jury must determine the credibility of the witnesses,” and that certain matters (enumerating them) “ are proper matters for the jury to consider in coming to a conclusion as to whom they will believe and whom they will not believe,” does not invade the province of the jury, and is not erroneous.</p> <p>Same. — Imposing upon Jury Inference Drawn by Court. — In a suit on a bond given in compromise of a bastardy proceeding, conditioned among other things, “ that the said S. should not by his misconduct give the plaintiff legal cause for divorce,” an instruction to the jury: “If you find that he (the defendant), after their said marriage, sought the society of prostitutes, and women of bad repute for chastity, or that he, went into a private bed-room with a woman of bad repute for chastity, or a prostitute, in the night time, and remained there for some time, no one else being present, then, and in either event, your verdict should be for the plaintiff,” is erroneous, because it imposes upon the jury an inference made by the court.</p> <p>Evidence. — Husband and Wife. — Privileged Communications. — A widow is not a competent witness to testify to communications made to her by .her deceased husband during the marriage.</p>

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

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

<p>Mortgage. — Foreclosure.—■ Sheriff’s Sale.— Redemption.— Lis Pendens. — G. sued to foreclose a senior mortgage, making the junior mortgagee a party, and pending the suit he became assignee of the later mortgage. Without amendment of the complaint the case resulted in a foreclosure of the senior mortgage, a sheriff’s sale to L., and at the proper time a deed by the sheriff to L.</p> <p>Held, that after the lapse of a year from the sheriff’s sale G. had no right to maintain a suit to redeem therefrom or to foreclose the junior mortgage.</p>

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

<p>Pbomissoey Note. — Consideration.—Failure of. — Pleading.—To a complaint upon a promissory note, an answer that the sole consideration was the conveyance by deed, with covenants, of a tract of land to which the plaintiff had no title whatever, but falsely and fraudulently represented that he had a good title, which he knew to be false, upon which the defendant relied, is bad on demurrer.</p>

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

<p>'Continuance. — Absent Witness Incompetent. — A continuance should not be granted for the absence of a witness, who if present would not be competent to testify if objected to; e. g., a physician whose knowledge of the facts came to him in his professional capacity.</p> <p>Evidence. — Opinions.—Nm-Expert Witness. — A witness, not an expert, is competent to give an opinion as to the health and physical condition of another, based upon facts within his personal knowledge, which should first be stated. For reference to many authorities on the subject see opinion.</p> <p>■Same. — Declarations as to Injuries, — Statements and complaints made by a party injured as to his sufferings and symptoms at the time, whether made to his surgeon or to others, are competent evidence in his behalf in a suit to recover for his injuries.</p> <p>•Same. — Damages.—In a suit for personal injury, where the complaint avers that the plaintiff was a physician, and by reason of the injury is unable to follow his profession, it is competent to prove these facts, and also what his practice prior to the injury was worth; also the extent of his injury and its probable duration.</p> <p>Measure op Damages. — Personal Injury. — Case Hollowed. —Oily of Indianapolis v. Gaston, 58 Ind. 224, announces a correct rule for the measure of damages in a suit for personal injury.</p> <p>Excessive Damages. — Ten thousand dollars will not be held excessive damages by the Supreme Court for personal injury to a physician whose professional earnings were two thousand dollars per annum, and who suffered greatly, was rendered permanently unable to practice afterwards, .and must sooner or later die from the injury.</p>

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

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

<p>Criminal Law. — “Pimp.”—Indictment.—Duplicity.—An indictment under section 2002, R. S. 1881, charged that one F., on, etc., did unlawfully frequent houses of ill fame, well knowing them to be such, and did unlawfully frequent houses of assignation, well knowing them to be such, and did unlawfully associate with females known and reputed as prostitutes, viz., with one K. and others whose names are to the grand jury unknown, well knowing them to be such, and was then and there engaged in and about a house of prostitution, he, the said F., then and there being a male person, contrary, etc. On motion to quash,</p> <p>Held, that the indictment is not bad for duplicity.</p> <p>Same. — House of Prostitution. — Question of Fact. — In a prosecution under such an indictment, the question as to whether or not the house, which the defendant is alleged to have unlawfully frequented, and in and about which he was engaged, was a house of ill fame, assignation or prostitution, in so far as it is of importance in such case, is a question of fact for the jury, to be determined from the evidence.</p> <p>Same. — Instruction to Jury. — Prostitute.—Statute.—In such case an instruction to the jury, that “A female prostitute is a woman who has or holds unlawful sexual intercourse with men ; and any act of voluntary sexual intercourse, between an unmarried female and a male person, is whoredom ; and a single act of that kind makes a woman a whore or prostitute, these two terms meaning the same thing. And the association of a male person, not her husband, with such a woman, constitutes him a pimp,” is erroneous, for the reason that section 2003, R. S. 1881, defines-the meaning of the term “ prostitute,” and the definition given in such instruction is not in harmony with that given in said section.</p> <p>Statute. — Definition of Words. — Where a statute defines words or terms used therein, no wider or different meaning can be given them by any rule of legal construction.</p>

<p>.Drainage. — Act of April 21st, 1881. — Appeal.—Practice.—In a proceeding for the establishment of a drain before the board of commissioners un>der the act of April 21st, 1881, an appeal from the judgment of the board, taken by either party to the circuit court, is governed by the provisions? of sections 17 and 18 of that act, and not by the general statute govern-ing appeals from the decisions of boards of commissioners, and no notice of any such appeal need be given the adverse party, either by summons or otherwise.</p>

<p>Party Waul. — Covenant Running with Land. — Case Distinguished. — A. and B. being owners of adjoining ei-ty lots, the former in erecting a building on his lot placed one-half the width of a side wall thereof on B.’s lot, pursuant to a written agreement of said parties, whereby, in consideration that A. should erect such a wall, B. bound himself, his heirs, executors, administrators and assigns, that whenever B., his heirs, executors,'administrators or assigns, in any building he or they might erect on said lot so owned by B., should use said wall, or any part thereof, or attach any part of his or their building thereto, A. should be paid the full value of one-half of the original cost of said wall, and that B., his heirs, executors, administrators or assigns, should not use or attach to said wall until said value and cost should be ascertained and paid or tendered to A. After the erection of said building A. conveyed his said lot, with the improvements thereon, to C., reserving the right to receive ■compensation from adjoining property owners for the building or use of existing party walls. Afterwards D. became the owner of B.’s said lot, having purchased it with notice of said agreement, and erected a building thereon, and attached it to and used said wall.</p> <p>Held, that B.’s covenant to pay ran with his said land, while the right to receive payment- was personal to A.</p> <p>Held, also, in an action brought on said contract by A. against D., that the latter was liable to the former for one-half of the original cost of the party wall, though, by reason of injury from fire, it was worth less than its original cost. Bloch v. Isham, 28 Ind. 37, distinguished.</p>

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

<p>Practice. — Jury Trial.— Verdict.. — A party upon whose demand, resisted by the other party, a cause in equity is tried by jury which should have been tried by the court, will not be permitted afterwards to question the mode of trial, and as to him the verdict will be treated in all respects as if the case were at law, and judgment entered accordingly.</p> <p>Same. — S'•pedal Verdict.— Judgment.— Damages. — Where a special verdict states the amount of damages found for the plaintiff, in the event that, upon the facts found, the law is for the plaintiff, and no 4data are furnished by the verdict from which the court can, by computation, ascertain the damages, judgment, if for the plaintiff, must be for the damages found by the jury. Aliter, if there be data found by the verdict, which will enable the court to compute the proper damages.</p>

<p>Libel. — Communication to Employer. — A letter, written voluntarily, andfor the sole benefit of the writer, to another’s employer, using language such as,must have been understood by the employer as charging the employee with having obtained goods from the writer by fraudulent means, was held to be libellous, and not a privileged communication.</p> <p>Evidence. — Offer of Proof. — An offer of proof should not be so general as to require the court, for the purpose of determining what facts are competent, to examine a mass of previous evidence, but should specifically state competent facts which it is expected to show.</p> <p>Same. — Statements of Stranger Binding on Party. — One who has directed another to a third person, for information or direction, will be bound by the statements made by such third person.</p> <p>Same. — Intent.—Where the intent with which one has done an act becomes materia], it is proper to ask him as a witness what was the intent.</p> <p>Same. — Objection to Evidence. — There can be no available error in admitting evidence over objection, where no ground of objection is specifically stated.</p> <p>Instruction to Jury.— Court not Required to Modify Erroneous Instruction Ashed. — Unless an instruction asked is correct in terms as prayed, the court is not bound to modify it, but may refuse it.</p> <p>Pleading. — Qmeral Scope.- — A pleading must be judged by its general scope and tenor, and not by fragmentary statements therein.</p> <p>Same. — Plea of Justification. — A plea of justification in an action for libel must proceed on the theory that all the material averments of the complaint are admitted.</p> <p>Principal and Agent. — Ostensible Authority of Agent. — If a principal holds out an agent as possessing authority to control a shop or place of business, and a third person acts upon the faith of the appearances so created, the principal may be bound by the acts of such agent within the scope of such ostensible authority, although, as between the agent and his employer, no such authority in fact existed.</p> <p>Libel. — Construction-of Writing. — Justification.-JWheiher a written instrument is or is not libellous, and what will constitute justification for a libellous publication, are questions for the court, and not for the jury.</p>

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

<p>Mabbied Woman. — Surely for Husband. — Compromise of Threatened Litigation. — Promissory Note. — Mortgage.—Under section 5119, K. S. 1881, a note • and mortgage executed by a married woman, upon her separate land to secure her husband’s debt, are void; and the mere facts, without more, that the mortgagee believed he could subject said land to the payment of such debt, as having been conveyed to the wife to defraud the husband’s creditors, and was threatening to bring suit for such purpose, and that, for the purpose of avoiding su.ch threatened litigation, the note and mortgage were executed, is not sufficient to bind her as principal.</p> <p>Same. — Suit to Cancel Note and Mortgage. — Pleading.—Fraud.—In a suit by a married woman to cancel a note and mortgage executed by her to secure her husband’s debt, a paragraph of answer by the mortgagee confessing the plaintiff’s title to the land mortgaged, setting up nothing in avoidance, and seeking argumentatively to deny the complaint, by stating that the plaintiff has no title in the land because of fraud, is. bad on demurrer.</p> <p>Same. — Estoppel.—Evidence.—One who takes a mortgage from a married woman to secure her husband’s debt, with knowledge that her title is. fraudulent as against creditors of the husband, is estopped, in a suit by her to cancel the mortgage, from proving the fraud for any purpose.</p>

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

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

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

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

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

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

<p>Habeas Corpus. — Practice.—Judgment.—In a habeas corpus proceeding a formal judgment is not required to he entered.</p> <p>Same. — Appeal.—Where, in a habeas corpus proceeding, the reoord shows a decision of the court below refusing to admit the petitioner to bail, the petitioner may appeal from such decision to this court, notwithstanding the fact that no formal judgment has been rendered in the proceeding,</p> <p>Same. — Burden of Proof. — In a habeas corpus proceeding the burden of proving the allegations in the petition is on the petitioner.</p>

<p>Pleading. — Demurrer.—Plea in Abatement. — A demurrer is not a plea in abatement, and matters in abatement may be pleaded after a ruling on demurrer to the complaint, unless the matter in abatement is as to the jurisdiction of the person of the defendant. ,</p> <p>Insdbance. — Mutual Benefit Societies. — Duty of Members to Take Notice of By-Laws. —A person who becomes a member of a secret mutual benefit society is bound to take notice of its by-laws.</p> <p>Same. — Power of Mutual Benefit Societies to Limit Bight to Sue. — Mutual benefit societies may prescribe regulations as to procedure in enforcing claims, and may require appeals to superior bodies before instituting suit,,but they can not entirely take away the right to invoke the aid of the courts in enforcing claims existing in favor of its members upon contracts.</p> <p>Same. — Mutual Benefit Societies are Insurance Companies. — A mutual benefit society which, for an agreed compensation, agrees to pay benefits to its members, is not a purely benevolent society, but is, in respect to the contract to pay benefits, an insurance company.</p> <p>Same.' — -What By-Laws Will Limit Bight to Sue. — By-laws simply giving the right of appeal to a superior body, to which the mutual benefit society belongs, will not deprive a member of the right to sue; in order to have this effect the by-laws must positively require members to prosecute an appeal before resorting to the courts for redress.</p> <p>Same. — Claims for Money. — Question of Policy and Doctrine. — A member of a secret order which exercises the privileges and powers of a mutual benefit society, who sues for a benefit due him under a contract, occupies an essentially different position from one who presents a question of policy, doctrine, or discipline, and courts will entertain jurisdiction in the one case, but, as a general rule, not in the other.</p> <p>Custom. — A custom that a party shall not sue in a court of justice for money due him on a contract is not valid.</p>

<p>Vendor, and Purchaser.— Want of Title in Grantor.— When Purchase-Money can not he Withheld. — Where a deed is made and accepted, and possession taken under it, want of title in the grantor will not enable the purchaser to resist the payment of the purchase-money, or recover more than nominal damages on his covenants, while he retains the deed and possession, and has been subjected to no inconvenience or expense on account of the defect of title.</p> <p>Same. — Acceptance of Estate. — Estoppel.—By the acceptance of an estate the party accepting is estopped from denying the title under which he holds.</p> <p>Practice. — Failure to Assess Nominal Damages. — A judgment will not be reversed because of a failure to assess or allow merely nominal damages.</p>

<p>Bastabdy. — Rulings after Finding. — New Trial.— Practice. — In a bastardy case the trial proper ends with the finding that the defendant is the father of the child, and no question will be raised upon a ruling in the proceedings subsequent to such finding by assigning such ruling as a. cause for a new trial.</p> <p>Same —Evidence.— Waiver. — A failure to object to the judgment or to move-for its modification is a waiver of any supposed error of the trial court in refusing to hear evidence, offered after the finding, as to the defendant’s financial condition.</p> <p>Same. — Financial Gonditim of Defendant. — Excessive Judgment. — The'fact that the defendant in a bastardy proceeding has no property, and no means’ of obtaining money except by his labor, will not justify the reversal of a judgment of five hundred dollars, payable in instalments, for the support of the child.</p>

<p>Township Trustee. — Schools.— Gash Advanced to Teachers. — A township trustee, who in good faith employs necessary and proper teachers, and when it is unexpectedly found that the public funds provided are insufficient to pay them in full, advances the deficit out of his own money, has a demand against the school township which he may recover.</p>

<p>■Corporation.— Turnpike Company.— Consolidation.— Forfeiture. — Where a duly organized turnpike company, acting under the advice of counse^ effects a consolidation, under one management, of its property and franchises with the property and franchises of an intersecting compaby, and the common management acts for more than twelve years without question by the State, when, by legal proceedings, the consolidation is declared void, and each company thereupon assumes control of its own property and exercises its own franchises, and so continues to act for more than one year without objection, there is no forfeiture of its rights by such company.</p>

<p>Supreme Court. — Practice.—Bill of Exceptions. — Where exceptions to a guardian’s report have been disallowed upon evidence, the ruling can not'be questioned in the Supreme Court in the absence of a bill of exceptions containing the evidence.</p>

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

<p>Pbomissoby Note. — Joint Makers. — Consideration.—Separate Defence. — Answei\ — One of the joint makers of a promissory note can make the defence that as to him such note is without consideration, and an answer by him, admitting the signing of the note, but alleging that “ as to him it was executed without any consideration whatever,” is good. Anderson v. Meeker, 31 Ind. 245, and Bingham v. Kimball, 33 Ind. 184, distinguished.</p> <p>Same. — Pleading.—Practice.—Harmless Erar. — If a separate answer by one of several defendants goes to the merits of the case, and is such that the proof of it will defeat a recovery by the plaintiff, it will enure to the benefit of the other defendants; but this rule will not render harmless an error'in sustaining a demurrer to an answer by one of such other defendants who has the right to answer and defend separately.</p> <p>Pleading. — Sham Answer. — Practice.—Where an answer does not appear upon its face to be a sham, the question as to whether or not it is such should be raised in the manner provided by section 382, B. S. 1881.</p>

<p>Constitutional Law. — Schools.—Taxation.—Statute.—The statute empowering the school trustees of cities to levy a tax for tuition purposes is constitutional.</p> <p>Same. — Local Taxation.— Uniformity of Statutes. — General Laws. — Delegation of Power. — It is competent for the Legislature to delegate the power of assessing taxes for local school purposes to the inhabitants of the various localities, but the provisions of the law providing for such local taxation must be open to all school corporations of like character, and the statute must be general in its nature and operation.</p> <p>Same.— Legislative Power. — The provision of the Constitution, art. 8, sec. 1: “Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all,” does not require the Legislature to levy all school taxes, nor prohibit it from providing, by a general law, for the levying of school taxes by the local school authorities.</p> <p>Same. — General Laws.— Uniform System of Schools. — A system that secures to all the various subdivisions of the State equal and uniform rights and privileges, leaving only to the local authorities the right, under the law, to govern the local school affairs, is a general and uniform system, and a law providing such a system is a general law within the meaning of the Constitution.</p> <p>Same. — Right of Courts to Pass on Constitutionality of Statutes. — The power of the courts to declare a statute unconstitutional is a high one, is very cautiously exercised, and is never exercised in doubtful cases.</p> <p>Same. — Stare Decisis. — On constitutional questions the rule of stare decisis does not possess the same force as in ordinary cases.</p> <p>Same. — Cases Overruled. — Greencastle Tp. v. Black, 5 Ind. 557, and cases following it, in so far as they conflict with the present decision, are overruled.</p>

<p>Judgment. — Collateral Attack. — Presumption.—Pleading.—Where a judgment is attacked collaterally by any pleading, all reasonable presumptions will be indulged in favor of its validity, and the facts alleged must be such as will overcome them.</p> <p>Same. — Notice of Pendency of Action. — Where a party seeks, by complaint or cross complaint, to impeach the judgment of a court of superior jurisdiction, on the ground that he had no legal notice of the pendency of the action in which it was rendered, he must allege what, if anything, is shown by the record in relation to the issue and service of process on him.</p> <p>Same. — Jurisdiction.—Where a court has jurisdiction of the subject-matter, it will be presumed, in the absence of any showing to the contrary, that it acquired jurisdiction of the person before rendering judgment.</p> <p>Same. — Collateral Attack by Parly to Record. — Where a party to a judgment seeks to impeach its validity and have it declared void, in a subsequent action, by the allegation of facts dehors the record and not apparent on the face of the judgment, such an attack is a collateral one, and Can not be made by a party to the record.</p>

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

<p>Principal and Surety. — Contract of Surely. — The engagement of asurety is a direct original agreement with the obligee that in the event his principal fails, lie will perform the original obligation; and whether it is entered into jointly with the principal or separately, the extent and character of the obligation are the same as to both, depending only upon the form in which it is expressed.</p> <p>Same. — Contract of Guarantor. — The contract of obligors, whether entered into separately or jointly with the principal, if by its terms it appears that the principal is separately bound by an original, independent contract, to which the contract for security is collateral, and the obligors agree therein that the principal will pay or perform according to his original engagement, and that they will answer for his default in the event of failure, is a contract of guaranty.</p> <p>Same. — Bond of Bank Cashier is Contract of Guaranty. — The contract of the sureties in the bond of a hank cashier, conditioned for the faithful discharge of his duties hv such cashier, is a contract of guaranty. Elliott, J., and Zollars, J., dissent from this proposition.</p> <p>Same. — Notice of Default. — Matter of Defence. — A failure to give notice to. guarantors of the default of their principal, except in cases governed by commercial rules, is a matter of defence, and resulting damages must concur with such failure in order to work a discharge.</p> <p>Same. — Complaint.—Failure to Aver Notice of Default. — A complaint upon a contract of continuing guaranty is not subject to demurrer because of its failure to aver notice of the default.</p> <p>Same. — Liability of Cashier. — Access to Funds by Others. — Where by a by-law of a bank its cashier is made responsible for the funds and valuables of the bank, it can not be implied that his bond would not become operative until all the other officers and employees were denied access to such funds and valuables, nor that he is responsible for losses which may occur through the delinquencies of others.</p> <p>Same .— Consideration. — Approval of Bond after Appointment. — The bond of a bank cashier, executed and approved two weeks after he enters upon his duties, is upon sufficient consideration, and is operative, at least from the date of its approval.</p> <p>Same. -■ Knowledge by Employer of Misconduct of Employee. — Release of Quarantor. — The knowledge by an employer of the misconduct of an employee, whose conduct and fidelity have been guaranteed by another, which will, if concealed, release the guarantor, must relate to the service in which the employee is engaged, and must be something more than mere moral delinquency, unconnected with the subject-matter of the guaranty.</p> <p>Same. — Revocation of Guaranty. — -A continuing contract, guaranteeing the fidelity of a bank cashier, may be revoked by the guarantors without cause, upon proper notice, but the right must be exercised reasonably.</p> <p>Principal and Agent. — Declarations of Agent. — Only declarations of an agent while actually engaged in transacting the business of the principal, to which the declarations relate, are admissible.</p> <p>Practice. — Bills of Exceptions. — Bills of exceptions must be signed by the judge and filed within the time limited.</p>

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

<p>Vendor and Purchaser. — Growing Wheat. — Reservation.—Personal Property. — Wheat which in fact is attached to and is a part of the soil, although in a theoretical sense separated therefrom by a reservation in the deed of a grantor, is not in a condition to be transferred under a general designation of property on and distinct from the farm.</p> <p>Same. — Reformation of Reed. —Where a grantee, believing he is the owner of growing wheat by purchase of the land, buys from his grantor his household goods “and all other property on said farm,” he can not,’ upon discovering that the wheat was reserved but under circumstances not entitling him to a reformation, claim the wheat as a part of the personal property so purchased.</p> <p>Pleading. — Theory of Case. — Practice.—A plaintiff must recover upon the theory of the case on which his complaint proceeds or not at all.</p>

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

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

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

<p>■Contbact. — Sale of Wind-Mill. — Conditions.— Pleading. — The contract of sale of a wind-mill contained the following stipulation: “ If you accept this order and ship me the goods ordered above, it is with the distinct understanding, and is a part of this contract, that if the wind-mill does not work well for sixty days after erected, I am to notify you and give you ninety days after receipt of such notice by you in which to remedy the defect, and if you can not make it work well you are to remove the wind-mill and release me from the amount which I have paid for said mill as above stipulated.” On the reverse side of the contract was written the following, which was signed by the seller’s agent: “ The condition of this sale is that D. G. erects the mill, and after ninety days, if the mill suits J. C., he agrees to settle on the conditions named in the within order.” Action to recover the price of the mill.</p> <p>.Held, that the purchaser did not have the right to arbitrarily say he was not suited and reject the mill, but he was only relieved from keeping it by reason of any defect or failure to perform, which the seller failed, upon notice, to remedy.</p> <p>Held, also, that a paragraph of answer alleging generally that the “windmill did not work well,” and another alleging that the plaintiff’s agent “ wholly failed to cause the same to work sixty days, or any other period of time, or to work at all,” and another alleging that it “ never did work, never was of any use or value to the defendant, because it would not pump water for stock, nor do any other thing for which it was intended,” but each failing to aver the particulars in which it was defective, are not sufficient.</p>

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

<p>Master and Servant. — Scope of Authority. — Liability of Master far Injury to Another. — Where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts1 means reasonably intended and directed to the end, which result in injury to another, the master is answerable for the consequences, regardless of the motives which induced the adoption of the means; and this, too, even though the means employed are outside of his authority, and against the express orders of the master.</p> <p>Same. — Negligence.—Where O., a section foreman, returning with his crew and hand-car from work, encounters obstructions on the line of his employer’s road, and thereupon directs the car to be transferred to the track of a parallel line operated by another company, as occasionally had been done before, but without the knowledge or consent of either company, and while proceeding on such track his car is negligently propelled against the car containing the section men of such road, whereby one of the latter is injured, C.’s employer is liable.</p>

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

<p>Conteact. — Construction of. — Mistake.—In the construction of contracts the leading purpose is to ascertain the true meaning of the contracting parties ; but in doing this courts are confined to the contract as written, in the absence of proper averments of mistake.</p> <p>Same.'— Decedent^ Estates. — Agreement as to Distribution Among Heirs.— Will. —Under an agreement, signed by the heirs of L., that “ in the distribution of” his estate.B. “shall receive an equal share with each other child,” said B. is entitled to share in the common estate, if any, in which each is entitled to share, and not in personal property and lands which have been disposed of by will to one of such other children.</p> <p>Same.' — “Distribution.”—Presumption.—In the absence of a showing to the contrary, it will be' presumed that the word “distribution ” was used in the statutory and ordinary sense with reference to the personal property and money arising from the sale of real estate by the administrator, remaining after the payment of debts and legacies.</p> <p>Same. — Parties.—In an action by B. upon such contract, all the signers thereto are necessary parties defendants.</p> <p>Same.— Want of Consideration. — Answer of. — An answer that the contract sued on was executed by the defendant without any consideration whatever, is sufficient in form and substance.</p> <p>Evidence.— Witness. — Practice. —Supreme Court. — A mere offer to prove a fact by a witness, without asking any question to elicit it, is not sufficient to present any question to the Supreme Court upon a ruling rejecting the evidence.</p>

<p>Libel. — Definition.—Any written or printed publication which holds a person up to scorn or ridicule, or to a stronger feeling of contempt or execration, or which imputes or implies his commission of a crime not directly charged, is libellous.</p> <p>Same. — Excessive Damages. — Practice.—Where the amount of damages has been determined by a jury and approved by the trial court, it must appear at first blush to be grossly excessive to secure a reversal of the judgment.</p> <p>Supreme Court.— Weight of Evidence. — Where there is evidence tending to sustain the verdict, the Supreme Court will not disturb it oh the weight of the evidence.</p>

<p>Supreme Court. — Assignment of Error Attacking Complaint. — Practice.— An assignment of error in the Supreme Court, that the complaint does not state sufficient facts to constitute a cause of action, questions the-entire complaint, and if any paragraph is sufficient such assignment can not be sustained.</p> <p>Same. — Sufficiency of Evidence. — When all the evidence is not in the record' the Supreme Court can not pass upon its sufficiency.</p> <p>Same. — Practice.—Bill of Exceptions. — Omitted Evidence. — A general statement in a bill of exceptions that it contains all the evidence is controlled by an affirmative showing to the contrary.</p> <p>Instructions to Jury. — In the absence of the evidence, instructions refused will be deemed properly refused because not applicable to the case made; nor will instructions given work a reversal of the judgment unless erroneous under any supposable state of facts.</p> <p>Same. — Compromise of Crime. — A complaint to cancel a note alleged to have been executed at the demand of and taken and received by the defendant “ in full satisfaction and compromise of the crime of larceny,, robbery and embezzlement,” with which said defendant charged the maker, etc., tenders an issue to which is applicable an instruction that if the defendant took the note under an agreement, express or implied, that he would not prosecute the maker for such crime, and without any other consideration, the jury should find for the plaintiff.</p>

<p>Pleading. — Complaint to Satisfy Mortgage and Judgment. — Tender.—Supreme Court. — A complaint to secure the satisfaction of a mortgage and a judgment, alleging a tender and payment into court of “ the full amount due on the judgment and the mortgage,” but not stating the rate of interest on the judgment, or any other fact showing that the amount tendered was not sufficient, is good upon objection for the first time in the Supreme Court.</p>

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

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

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

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

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

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

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

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

<p>Marion Superior Court. — Appeal.—Assignment of Phror. — Practice.—On appeal from the general term of the Marion Superior Court to the Supreme Court, only such errors as were assigned in such general term will he considered.</p> <p>Fraud. — Contract—Damages.—Evidence.—For a consideration of evidence held sufficient to sustain a j udgment for damages for fraudulent violation of contract, see opinion.</p> <p>Instbuctions to Juby.— Weighing Evidence. — In the absence of a request for fuller instruction, it is not error for the trial court to say to the jury that they are familiar with the manner of weighing evidence, and that, further instruction is not necessary. ■</p>

<p>School Corporation. — Promissory Note. — Bank—Deposits.—Where the trustee of a 'school corporation executes promissory notes in the name of the corporation, deposits the money in his own name, and draws it out upon checks signed by himself as an individual, he becomes the creditor of the bank for such deposits, and the transaction is one between the bank and its depositor.</p> <p>Same. — Authority of Trustee to Barrow Money. — The trustee of a school corporation has no authority to borrow money and execute promissory notes therefor in the name of the corporation.</p> <p>Same. — Liability of Corporation. — Subrogation.—Where the school trustee borrows money and executes notes therefor in the name of the school corporation, the corporation will be liable if the money is actually used for the payment of legitimate claims against the corporation, and the circumstances are such as make it equitable that the lender should be subrogated to the rights of the persons whose claims the borrowed money paid.</p> <p>¡Same. — No Liability where Trustee has'Sehool Funds in Ms Hands. — Where the trustee has money in his hands derived from the school revenues or funds, the lender of money can not be subrogated to the rights of the persons holding claims against the school corporation.</p> <p>Same. — Authority of School Trustee Statutory. — Duty of Persons Healing with Him, to Ascertain the Extent of his Authority. — A school corporation is one of very limited powers; the authority of the trustee is purely statutory and all who deal with him must, at their peril, ascertain the extent of his authority.</p> <p>Same. — Estoppel.—Public and Private Corporations. — There is an essential difference between public and private corporations, for the officers of the former, exercising statutory powers, can not bind the corporation by estoppel where the acts relied upon as creating the estoppel are beyond the scope of the authority vested in such officers.</p> <p>TIes Adjudicata. — Heemon on Fomer Appeal. — The general rule is that a decision on appeal governs the case throughout all its subsequent stages, but this rule does not apply to merely incidental or collateral questions; it applies to such questions only as were presented for decision, and were decided as essential to a just disposition of the pending appeal.</p> <p>'Supreme Court. — Practice.—Evidence.—The Supreme Court will not weigh conflicting evidence, but will accept that deemed credible by the trial court, and will apply the law to the facts established by such evidence.</p> <p>•Same. — Petition for Behearing. — Points not made on the original argument will not be considered on the petition for a rehearing.</p>

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

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

<p>Seduction. — Complaint.— Previous Chastity.— Reliance on Promises. — Averments of previous chastity, or good repute for chastity, and that the-plaintiff relied on the defendant’s promises, are not essential in a com‘plaint by an unmarried wdman for her own seduction.</p> <p>Same. — Averments as to Means of Seduction. — A complaint alleging, substantially, that the defendant was the plaintiff’s suitor, and that by his attentions and professions of affection he gained her confidence and importuned and persuaded her to have sexual intercourse with him, and. that she, by reason of her confidence in and love for him, yielded, etc.,, and, also, that by promising to marry plaintiff the defendant seduced' and debauched her, sufficiently descz-ibes the means of the seduction.</p> <p>Same. — Coercion.—Demwrer.—That it remains uncertain from a paragraph, of complaint, whether the intercourse was had by means of force or by arts which amount to seduction, or both combined, is not ground for-demurrer. -</p> <p>Same. — Evidence.—For a consideration of evidence held sufficient after’ verdict to support a chaz-ge of seduction, notwithstanding an element of coercion, see opinion.</p> <p>Instructions to Jury. — That a single instz-uction, standing alone, is subject to criticism, is not ground for reversal, if, upon the charge as a. whole, the law is correctly stated to the jury.</p> <p>Jury. — Misconduct of. — Practice.—Where the trial court hears affidavits and counter-affidavits upon a charge of misconduct of the jury, its decision, if supported by evidence, will not be disturbed.</p> <p>Same. — Competency of Juror. — Jlelaiionshnp to Party. — New Trial. — The fact that a juror’s first wife, who had been dead twenty years or more, was a second cousin of a party to the action, which fact the juror did not know when he agreed to the verdict, is not a sufficient cause for a new trial.</p> <p>Witness. — Corroboration of by Previous Statements. — A witness who has been merely contradicted as to an alleged fact testified to by him can not be corroborated by showing that he related the same fact in the same way before.</p>

<p>(Criminal Law. — Competency of Juror. — Opinion as to Guilt or Innocence.— ■Conversations with Witnesses. — An opinion formed from conversations with •“ witnesses of the transaction ” absolutely disqualifies a person from ¡serving as a juror in a criminal cause, but this disqualification applies -only to opinions formed from conversations with witnesses to the trans■action constituting the gravamen of the offence charged, and not to opinions based upon conversations with witnesses to some merely incidental or collateral matter connected with the trial.</p> <p>©ame. — Discretion of Trial Court. — The judge who presides at the trial should be permitted to exercise a large discretion in determining the weight and relative importance which should be given to the answers of a juror to questions touching his qualifications to serve.</p> <p>Same. — Evidence.—Family Relations of Deceased, etc. — Presumption.—Where, in a prosecution for murder, a witness testifies to his relationship with the deceased, and also to the family relations and business of the latter, it will be presumed by the Supreme Court, in the absence from the rec■ord of the evidence in connection with which such proof was made, that the testimony was properly admitted.</p> <p>¡Same. — Previous Moral Character of Defendant. — In a prosecution for murder, evidence that the previous character of the defendant for peace and quietude was good is admissible, but his previous moral character is not a proper subject of inquiry.</p> <p>Same. — Difficulty between Deceased and Third Person. — Evidence that a third person, a short time pi-evious' to the homicide, had a difficulty with the deceased, and asked the defendant for his revolver to use upon him, which defendant refused, was properly excluded.</p> <p>Same. — Immatei'ial Evidence. — Practice.—Where offered evidence seems from the record to have been immaterial, it will be presumed that the trial court properly excluded it.</p> <p>Same. — Insanity.—Can not be Proved by Reputation. — Insanity is a fact which can not be proved by reputation.</p> <p>Same. — Partial Insanity. — Instructions.—For instructions on the subject of partial insanity see opinion.</p> <p>Same.— Instructions, How Considered.— Practice. — An instruction must be considered as a whole and not in its separate parts, and also in connection with all the other instructions, if any, given at the same time.</p> <p>Same. — Refusing Instructions Ashed. — It is not error to refuse to give instructions asked when those given by the court sufficiently cover the subject.</p> <p>Same.— Where Cause is on Trial and Undisposed of at End of Term Court May Sit Beyond Term. — Under section 325, R. S. 1843, continued in force as section 1379, R. S. 1881, where a cause is on trial and undisposed of at the end of a regular term of court, the court may continue its sitting beyond such term until the cause is fully disposed of.</p> <p>Same. — Adjournment Before Midnight. — Practice.—Where at six o’clock on Saturday evening, the last day of a term of court, it is made to appear that the cause can not be disposed of in the six hours remaining of such term, it may be adjourned over until the following Monday, without holding until midnight.</p> <p>Same. — Imperfect Record. — Amendment Nume Pro Tunc. — The power to amend imperfect records of past proceedings extends to criminal- as well as to civil proceedings.</p> <p>Same. — Appeal.—Practice.—Where, after appeal, the record is found to be imperfect, and proceedings are begun in the trial court for its amendment nunc pro tunc, there must be an appeal from the order making the amendment to bring in review the sufficiency of the evidence to sustain it.</p> <p>Same. — Notice to Defendantin Prison. — Notice to a defendant while in.prison, on conviction of manslaughter, of proceedings by the State to obtain a nunc pro tune entry amending the record, is, from the necessity of the case, sufficient.</p>

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

<p>Tax Sales.— When Void. — Personal Property. — A sale of real estate for taxes, while the owner has available personal property subject to distress and sale, is illegal and void.</p> <p>Sale. — Tender within Time for Redemption. — Deed.—Interest.—Under sections 227 and 254,1 R. S. 1876, pp. 124,128, where an invalid and void sale for taxes has been made, if the land-owner, within the time for redemption and before a deed has been issued to the purchaser, tendered to the proper officer all legal taxes due, together with the lawful interest and charges thereon, a deed subsequently issued would not entitle the purchaser to recover the twenty-five per cent, interest provided for in section 257 of the same act- Aliter, if no tender had been made within the proper time.</p> <p>Same. — Quieting Title. — In such case, the land-owner might quiet his title against the holder of such deed by averring and proving the illegality ■of the sale, the tender and bringing of the money into court for the benefit of the purchaser. - •</p> <p>Same. — Section 6466, B. S. 1881, relating to redemption, has reference to .sales which are not void.</p>

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

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

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

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

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

<p>Change on Venue. — Buie of Court.— Diligence. — An application for a change of venue, filed after the time limited by a rule of the trial court, is insufficient if it does not show the exercise of diligence to discover the fact, upon which it iá' based, within the time limited.</p> <p>Same. — Convenience of Witnesses.^-Discretion of Court. — It is within the discretion of the trial court to grant a change of venue on the ground that it is required by the convenience of witnesses, and the Supreme Court will not interfere with its action where an abuse of such discretion is not shown.</p> <p>Practice. — Dejection of Supplemental Complaint — New Trial. — Supreme Court. —The rejection of a supplemental complaint is not a cause for a new trial, but such ruling belongs to the class of cases embracing motions to strike out, to make more specific, etc., and must be presented to the Supreme Court accordingly.</p> <p>Same. — Evidence.—Where the record fails to show what it is proposed to prove by a witness, there is no available error in sustaining an objection to a question propounded to him.</p> <p>Same. — Objection to Evidence. — Bill of Exceptions.' — It is not enough to state in general terms that testimony is incompetent; hut the grounds of objection must be specifically stated and embodied in a bill of exceptions.</p>

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

<p>Pbactice.—Special Finding.—Record.—A special finding of facts, with eon- ■ elusions of law, made at the request of a party and signed by the judge, is a part of the record without an order of court.</p> <p>Swamp Lands.—Treasurer’s Certificate Evidence of Legal Title.—Under section 11 of the act of the State Legislature to regulate the sale of swamp lands, etc., approved May 29th, 1852, 1 G. & H. 599, the county treasurer’s certificate of entry is evidence of legal title to the land mentioned therein in the person in whose name it is issued.</p> <p>Same.—Act of Sept. 28th, 1850, is Grant InPrcesenti.—By the act of Congress of Sept. 28th, 1850, R. S. of U. S., section 2479 (see 1 G. & H., p. 737), the whole of the swamp and overflowed lands within this State, made unfit thereby for cultivation, which remained unsold at the passage of that act, were granted to this State, and such act was a grant inpreesenti.</p> <p>Same.—Patent.—Selection of Lands.—Evidence.—The fact that a patent was subsequently issued to this State by the United States is conclusive evidence that the lands embraced therein were selected for the State, as swamp lands, and that the selection was approved by the proper authority, and establishes title to such lands in this State, commencing on Sept. 28th, 1850.</p> <p>Same.—Relinquishment hy State.— Title of State’s Grantee.—The State has never relinquished to the United States its title to the lands so patented,, and evidence of a title, to any of such lands, derived from the United States, subsequent to Sept. 28th, 1850, is of no avail against a title acquired from the State under the swamp land act.</p> <p>Same . — Invalid Release by Governor,—The attempted release or conveyance, by the Governor of this State, to the United States, in 1859, of certain of such lands, was without authority and invalid.</p> <p>Same.— When State’s Grantee May not Question Title from, United States.— The State’s grantee is only estopped from questioning atitle derived from the United States to particular lands of those granted by the swamp, land act of 1850 for which the State received compensation instead of the lands.</p>

<p>Mortgage.—Cancellation.— Taldng New Mortgage Will not Discharge Lien of First.—The taking of a new note and mortgage by a mortgagee from a mortgagor, for the same debt, upon the same land, will not discharge the lien of the first mortgage, hut such lien will he continued in the new mortgage, even if the first he cancelled.</p> <p>Same.—Married Woman.—Judicial Sale.—Act of March 11th, 1875.—Fore-closure.'—-Where a mortgage was executed by a husband alone prior to August 24th, 1875, the date of the taking effect of the act of March 11th, 1875, in relation to the rights of a married woman upon a j.udicial sale of her husband’s lands, and after the taking effect of such act said mortgage is cancelled and a new one for the same debt executed by such husband upon the same land, the mortgagee’s rights upon foreclosure remain as they were prior to such act.</p>

<p>Supreme Court.—Assignment of Error.—Practice.-—-An assignment of error, that “the court erred in overruling the demurrers to the first, second and third paragraphs of the complaint,” does not call in question the rulings upon demurrers to each of the paragraphs separately, but all jointly, and if one is good the assignment fails.</p> <p>Same.— Weight of Eidence.—The Supreme Court will not weigh evidence nor attempt to determine any question in regard to the credibility of opposing witnesses.</p> <p>Pleading.—Complaint on Account.—Decedents’ Estates.—A complaint by an executor upon an itemized account, alleging that the defendant is indebted to the plaintiff in a certain sum of money for the rent, use and occupation of certain land belonging to his decedent, is good on demurrer for the want of facts.</p>

<p>Highway.—Change of.— Width Must he Given or Order Void.—Evidence.— Where it does not appear in a transcript of proceedings instituted under 1 B. S. 1852, p. 313, et seq., to have a highway changed and relocated, how wide the highway vacated and the one established are, an. order locating the highway is void, and the transcript is not competent evidence to show upon what line it was established, nor'to overthrow a highway established by twenty years’ user.</p> <p>Same.—Highway by Twenty Years’ User.—Statute Construed.—Under section 5035, B. S. 1881, it is the twenty years’ use of a road that makes it a public highway regardless of its origin, and it is immaterial whether the use is with the consent or over the objections of the adjoining landowners. Statements in Board, etc., v. Huff, 91 Ind. 333, in conflict with this holding, are disapproved.</p> <p>Same.—Power of County Commissioners.—Such section of the statute does not provide for the changing of highways, nor for the correction of mistakes in locating them, but is limited to roads used as highways; and before the board of commissioners can make any order for entering of record, it must be shown that the road is used as a highway, and, when resistance is made, such board can not go beyond the way as used for twenty years, and establish it upon a.different line.</p> <p>Same.—Former Adjudication.—Estoppel.—A township superintendent of roads filed before the board of commissioners a petition asking that they ascertain and enter of record a certain portion of a highway, which, it was averred, had been in use more than twenty years. A remonstrance was filed, alleging that the road had not been so used, and that it was not upon the correct line. An order was made that the board “ finds for the remonstrants and refuses the prayer of the petition,” and afterward a motion for a new trial was refused.</p> <p>Held, that these orders, if in any sense a judgment, will not prevent the county board from afterwards ascertaining and making a record of the highway as established by twenty years’ user, nor estop the successor of the road superintendent from objecting to a subsequent application for a change of the road as used to a different line.</p>

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

<p>Telegraph Company.—Failure to Transmit Message. — Penalty.—Statute Must be Strictly Construed.—In an action against a telegraph company to recover the penalty for failing to diligently transmit a message, the statute is to be-strictly construed, and the case must be brought fully within its provisions.</p> <p>Same.—Complaint.—It is not necessary that the exact words of the statute should he used in the complaint; it is sufficient, if words of equivalent meaning are employed.</p>

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