Volume 103 — Indiana Reports

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

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

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

<p>Contract.—Equitable Mortgage.—Foreclosure.—Payment when Time not Fixed by Contract.—An instrument designated “memoranda of contract,” signed by S. B. and wife and E. B., provided that S. B. had previously obtained $3,000 from E. B., with which he purchased certain described land, “ the use and control of which we do hereby turn over to the said ” E. B. “ until sold, and when sold the $3,000'above named, and one-half of the advance over, together with the $3,000 that may be obtained on the sale of said land, we will pay to ” E. B. It was stipulated that S. B, should put $200 worth of improvements on the land, and that E. B. should pay the taxes and keep the farm in- as good repair as when received; that in case E. B. should die “before the sale of the farm and the cancelling of this paper,” then the $3,000 should be a gift to S. B., and the paper should be void. S. B. died without making the improvements or selling the land. Action by E. B. on the contract, with a prayer that the land be ordered sold and his claim paid out of the proceeds.</p> <p>Held, that the instrument set out is an equitable mortgage, and that E. B. is entitled to have the land sold to pay the debt evidenced by it.</p> <p>Held, also, that as no time was fixed for the payment of the money, the law made it the obligation of S. B. to pay it within a reasonable time.</p>

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

<p>Negligence.—Railroad Grossing.—Degree of Gave.—One who attempts to cross a railroad track must exercise care proportioned to the probable danger. .</p> <p>Same.—Personal Injury.—Contributory Negligence.—Statutory Signals.—Excessive Speed.—City Ordinance.—One who is injured by a train while crossing the track of a railroad company will not be exonerated from the presumption of contributory negligence, because of the failure of those in charge of the train to give the statutory signals, or because the train was run at a rate of speed prohibited by a city ordinance, if it appears that by the exercise of proper diligence he might have avoided the injury.</p> <p>Same.—Negligence per se.—The failure to give signals at a public crossing of the approach of a train is negligence per se, and fixes the liability of the railroad company to one who, without concurring negligence, is injured thereby.</p> <p>;Samb.—Plaintiff Must Affirmatively Show Injury not to be Result of Contributory Negligence.—Contributory negligence is not a matter of defence in this State, and the plaintiff must show affirmatively, by pleading and proof, that his fault or negligence did not contribute to his injury, before he is entitled to recover therefor.</p> <p>Instructions.—Bill of Exceptions.—The clerk is authorized to copy into the transcript instructions which are properly identified by, but are not copied into, the bill of exceptions, and the place for the insertion of which is designated by the words “ here insert.”</p>

<p>City.—Defective Street.—Complaint fon' Injury.—Negligence.—Notice.—Supreme Court.—Practice.— In an action against a city for negligently permitting a street to he out of repair, whereby the plaintiff was injured, the complaint, when questioned for the first time in the Supreme Court, will be held good as'to the matter of notice, when its averments plainly imply that the city had notice of the bad condition of the street when the plaintiff was injured; and after verdict it will be inferred that the notice was in time to have enabled the city to repair the street.</p> <p>Same.—Contributory Negligence.—For averments held sufficient to rebut the presumption of contributory negligence, see opinion.</p> <p>Same.—Proof of Notice.—Notice to the corporation of the defect which caused the injury, or facts from which notice may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability.</p>

<p>Statutory Damages eor Death.—Action by Personal Representative.— Complaint.—A complaint by an administrator against a railroad company, to recover damages for the death of his intestate, must, to show a cause of action, allege that the latter left surviving him either a widow or children, or next of kin.</p> <p>Same.—Arrest of Judgment.—In the absence from the complaint of such allegation, the judgment will be arrested on motion.</p> <p>Same.—Practice.—A motion in arrest of judgment, because of a fatally defective complaint, may be properly sustained, notwithstanding the fact that a demurrer to such complaint had been previously overruled.</p>

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

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

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

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

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

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

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

<p>JubGMENT.—Non-Resident.—Notice by Publication.—Defective Affidavit.—Fe-me».—Appeal.—Where a judgment has been rendered upon notice by publication, founded on an insufficient affidavit, the remedy of a party to such judgment is by a complaint for review or by appeal.</p> <p>S3ame.—Former Adjudication.—Fmidenee.—In a subsequent suit covering the same subject-matter and between the same parties, the record of such judgment is competent evidence for the purpose of showing a former adjudication of the matter in controversy.</p>

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

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

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

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

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

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

<p>From the Pike Circuit Court.'</p>

<p>From t}ie Vanderburgh Superior Court.</p>

<p>From the Marion Criminal Court. '</p>

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

<p>Supreme Court.—Practice.—Cause for New Trial.—Assignment of Error.— ’ A ruling upon a motion to quash a writ of replevin is not a cause for a new trial, and, to present a question as to such ruling to the Supreme Court, an independent assignment of error is necessary.</p> <p>Statutory Proceedings.—Strict Compliance with Statute Necessary.—In all' statutory proceedings, ex parte in their character, a strict compliance with the substantial provisions of the statute is necessary to the validity of such proceedings.</p> <p>Animals.—Running at Large, etc.—Impounding.—Burden of Proof.—Under section 2639, R. S. 1881, one who has taken up and seeks to detain ani- . mals until certain alleged charges are paid, must show affirmatively that, at the time he took up and impounded such animals, they were running at large or pasturing upon uninclosed lands or public commons of the township.</p> <p>Same.—Compensation.—Partially Inclosed Land.—One who takes up and impounds animals found running at large in his pasture only, which is partially inclosed, is not entitled to compensation.</p>

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

<p>From the Posey Circuit Court. '</p>

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

<p>Decedents’ Estates.—Sale of Real Estate by Administrator.—Appeal.—The proceeding for the sale of real estate by an administrator is regulated exclusively by the act for the settlement of decedents’ estates, and an appeal by an aggrieved party must be taken under the provisions of such act.</p> <p>Same.—Filing Appeal Rond and Transcript.—Time.—Dismissal.—Practice.— Under sections 2454 and 2455, R. S. 1881, and the amendment of 1885 (Acts 1885, p. 194), an appeal bond must be filed, except where the administrator appeals, within ten days from the date of the decision, and the transcript must be filed within thirty days from the filing of the bond, unless, for good cause shown, the Supreme Court shall direct such appeal to be granted, on the filing of a bond, within one year; otherwise the appeal will be dismissed.</p>

<p>Judgment.—Collateral Attack.—Appeal.-.—Review.—A judgment which is erroneous, but not void, is good as against a collateral attack. The remedy is by appeal or complaint for review.</p> <p>Mandate.—Return.—County Auditor.—Allowance.—-To an alternative writ of mandate directed to a county auditor, requiring him to show cause why he should not draw a warrant on the county treasury for the amount of an allowance made by the circuit court, it is a good return that the order of such court directed that such allowance should be paid by another person out of another fund, and that the claim had never been presented to and allowed by the board of county commissioners.</p> <p>Same.—Return Need not be Verified.—Pleading.—Practice.—The return to a writ of mandate need not be verified, as, under section 1171, R. S. 1881, issues of law and fact may be joined and trial had as in civil actions.</p>

<p>Assignment eor the Benefit of Creditors.—General and Partial.— Preference of Creditors.—Under the statute of this State, where a debtor in failing circumstances makes a general assignment of all of his property in trust for the benefit of all of his creditors, he can not prefer anycreditor, but must place all of them upon an equality. Aliter, where there is only a partial assignment.</p> <p>Same.—General Rale as to Preference.—The general doctrine that a debtor may prefer a creditor does not apply where the assignment is made in the cases contemplated by the statute.</p> <p>Pleading.—Exhibit.—Practice.—"Where an instrument is set forth in a complaint, or made an exhibit thereto, it is sufficient to refer to it in the answer without again making it an exhibit.</p> <p>Practice.—Objections to Admission of Emdence.—Bill of Exceptions.—Objections to the admission of evidence must be specific, and the grounds ¡upon which they are based set forth in the bill'of exceptions.</p>

<p>Criminal Law.—Peijury. — Indictment. — Language of Statute. — Words of Equivalent Meaning.—An indictment for perjury is not bad for omitting the word “falsely,” as used in the statute in connection with the swearing, if other words conveying the same meaning are used.</p> <p>Same.—Affidavit for Continuance.—Facts Sworn to Must be Material.—An indictment for perjury, under section 2006, R. S. 1881, predicated upon an affidavit for a continuance of a pending cause, must show by a specific averment or by the statement of the facts, that the swearing was touching matters material to the point in question.</p> <p>Same.—Description of Cause in Which Affidavit is Filed.—Motion to Quash.— Where the indictment does not allege the materiality of the facts stated in the affidavit, and does not describe the cause in which such affidavit was made with sufficient certainty to show such materiality, it is had on motion to quash.</p>

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

<p>Erom the Dubois Circuit Court. ■</p>

<p>Deed.—Easement.—Right of Way.—Railroad.—Title.—A deed executed prior to May 6th, 1853, conveying to a railroad company “the right of way,” of an undefined width, over certain real estate, such deed containing a stipulation that such company was to “ have and hold the said rights and privileges to the use of said company so long as the same shall be required for the uses and purposes of said road,” conveys nothing more than an easement in or right of way over the land, and not the fee simple.</p> <p>Same.—Encumbrance.—A right of way in favor of a railroad company constitutes an encumbrance on the land so occupied.</p> <p>Same.—Pleading.—Counter-Claim.—To an action to foreclose a mortgage given for the purchase-money of certain land, a counter-claim, alleging a failure of title, is not sustained by proof of the existence of an easement or right of way over the land.</p>

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

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

<p>Supreme Court.—Complaint.—Assignment of Error.—A question as to the-sufficiency of a complaint will not be considered by the Supreme Court unless properly presented by an assignment of error.</p> <p>Attorney and Client.—Authority of Attorney to Appear.-—Under section 970, R. S. 1881, an attorney may, at the proper time, be required to produce and prove the authority under which he appears, but Ms authority' to appear can not be controverted on the trial by evidence outside the issues in the cause.</p>

<p>From tbe Marion Superior Court.'</p>

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

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

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

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

<p>‘Criminal Law.—Obtaining Goods by False■ Pretences.—Indictment.—-In an indictment for obtaining goods by false pretences, it is sufficient to charge the ownership of the goods so obtained to be in a partnership by its firm name, under section 1753, R. S.-188-1, and that the false pretences were made to the partnership by its firm name.</p> <p>Same.—Belief in Fake Representations.—"Where the indictment in such case avers that said firm “relying on said false representations,” etc., it sufficiently appears that the representations were believed to be true.</p> <p>Same.—Goods must be Obtained by Fake Pretences.—An indictment averring that, for the purpose of obtaining “'credit,” certain false representations- were made, and that by means of -the representations thus made, the defendant did then and there obtain- from, etc., “ on credit,” certain goods, etc., does not sufficiently show that the goods were delivered in pursuance of the alleged false representations, as the connection between the false pretences and the obtaining of the goods on credit is not shown.</p>

<p>Malicious Prosecution.—Probable Cause.—Proceeding at Law.—To con-' stitute a proceeding at law a malicious prosecution, it must not only be prosecuted maliciously, but without probable cause.</p> <p>Attachment.—Proceedings Wrongful and Oppressive.—To make a party liable for causing a writ of attachment to be issued, it must be shown that the proceeding was wrongful and oppressive under the law under color of which it was prosecuted.</p> <p>Same.—Trdnsfer of Claim.—Injuria sine Pamno.—The transfer of a just debt to the jurisdiction of. another State, where, by appropriate judicial proceedings, its collection was enforced with greater facility and more effectually than could have been done, if at all, in this State, is not an injury for which damages may be recovered.</p> <p>Same.—Statute Constmed.—The statute declaring such a transfer to be a misdemeanor, R. S. 1881, section 2163, was enacted to promote the public welfare, and not to redress merely private grievances.</p>

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

<p>Pleading.— Complaint to Enforce Ditch Assessment.—Notice.—A complaint to enforce the collection of a ditch assessment, which fails to allege that defendant had notice of the proceedings, or that any notice whatever was given, is bad on demurrer; and the filing of a copy of the proceedings as an exhibit, from which it appears that due notice was given, will not make the complaint good.</p> <p>Same.—Exhibits.—Instruments which are not the foundation of a pleading should not be made exhibits, and, if they are, they cannot be deemed a part of the pleading.</p>

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

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

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

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

<p>Set-Off.—Demands Must be Mutual.—Finding by Jury.—To make one demand a set-off against another, both must mutually exist between the same parties; but where the mutuality is disputed, and there is evidence from which the jury may find that the transactions were between the same parties, its finding of such fact will not be disturbed.</p> <p>Pleading.—Defect of Parties to Answer.— Waiver.—Practice.—A defect of parties to an answer which presents a set off or other claim which might constitute an independent cause of action, must be taken by demurrer when apparent, or by plea when not apparent, or it will be deemed waived.</p> <p>Pbinoibal and Agent.—Agent’s Authority to Warrant.—Presumption.—An agent, upon whom general authority to sell is conferred, will be presumed to have authority to warrant unless the contrary appears.</p> <p>Same.—Sale of Commodity not Present.—It will be presumed, in the absence of a showing to the contrary, that a warranty is not an unusual incident to a sale by an agent for a dealer in a commodity, where the thing sold is not present and subject to the inspection of the purchaser.</p> <p>Same.— When Principal Liable Notwithstanding Instructions to Agent.—Though the authority of the agent be restricted by instructions from his principal, the latter will be bound by a warranty attending a sale by the agent unless the purchaser knew of such restriction.</p>

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

<p>Promissory Note.—Title.—Pleading.—In a complaint against the maker of a promissory note, it is sufficient to show title in the plaintiff, and this may be done by alleging that it was sold and assigned to him.</p> <p>Same.—Assignment of Note Carries Mortgage.—Where the note secured by a mortgage is assigned, the assignment carries the mortgage.</p> <p>Same.—Assignment in Blank.—Evidence of Title.—The assignment of a promissory note in blank is sufficient to prove title in the holder.</p> <p>Same.— Ultra Vires.—Defence.—If a corporation had no power to purchase a note and mortgage upon which it brings suit, that fact should be pleaded as a defence.</p> <p>Mortgage.—Description.—The office of a description is to furnish means of identification, and a mortgage which does this is in that respect sufficient.</p> <p>Pleading.— Uncertainty.— Practice.—The remedy for uncertainty in a pleading is by motion, and not by demurrer.</p> <p>'•Supreme Court.—Joint Assignment of Error.—A joint assignment of error must be good as to all or it is not good as to any.</p> <p>Same.—Objections to Evidence.—Practice.—Objections to evidence which are not stated in the bill of exceptions can not be considered on appeal. Same.—Motion for New Trial.—A party can not by statements in a motion for a new trial get evidence or objections thereto into the record.</p>

<p>Review of J udgment.—Amended Supersedes Original Complaint.—It is not necessary, in a complaint to review the proceedings and judgment in an action, to set out the oi'iginal whei-e an amended complaint was filed therein.</p> <p>Same.—Record.—Practice.—No more of the record of the case to he reviewed is required to accompany the complaint or hill for review than is necessary to present the question upon which error is predicated.</p> <p>Same.—Demurrer.—A complaint properly assigning one good cause for review will not he had because others are not well assigned.</p> <p>Same.— Will.—•Mistake in Description of Land Devised.—Evidence.—An alleged mistake in the description of land devised can not be corrected by the admission of extrinsic evidence, unless the language of the will itself furnishes the basis of the correction; and where, in violation of this rule, a judgment is rendered so correcting a description in a will, a complaint to review will lie.</p> <p>Same.—Demurrer.—Where a complaint to review a judgment does not show on its face that it was not filed vithin a year from its rendition, such defect can not be reached hy demurrer.</p> <p>Practice.—Minors.—The fact that a complaint fails to aver that some of the plaintiffs are minors, suing by their next friend, will not make it bad on demurrer.</p> <p>Same.—Caption of Complaint.—Naming plaintiffs in the caption of a complaint as minors suing hy next friend is not a sufficient averment of minority.</p>

<p>Life Insurance.—Mutual Aid Association.—Action on Certificate of Membership.—Complaint.—Matter of Defence.—In an action upon a certificate of membership issued by a mutual insurance company holding no reserve fund, entitling the beneficiary to “ one thousand dollars, or so much thereof as may be realized from one assessment,” it is not necessary to aver in the complaint the number of the members of the association against whom assessments might be made, and unless it be shown in defence that one assessment would not produce the full amount of the certificate, the plaintiff is entitled to recover the maximum insured. ■</p> <p>Same.—Insurable Interest.—Grandfather and, Grandson.—Instruction.—An instruction, that “ a grandson, with whom a grandfather resides, has an insurable interest in the life of the grandfather, and a policy of insurance taken out by the grandfather in favor of the grandson, in the absence of fraud, is valid and binding on the company issuing it,” considered as a whole, is not an erroneous statement of law.</p> <p>Instructions to Jury.—Absence of Evidence from. Record.—Presumption.— Where the evidence is not in the record, the judgment will not be reversed on account of an instruction if the latter would be correct upon any state of the evidence which might have been properly before the jury, as in such case it will be presumed that the instruction was applicable.</p>

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

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

<p>Taxation.—Personal Properly.— When Deemed in Transitu.—Where property is collected from one or more points, by any means of transportation, and is awaiting the necessary preparation and facilities for further transportation, it will be deemed to be in transit while so detained, and not liable to taxation.</p> <p>Same.—Property Intended for Transportation.—Situs.—But where property is collected, even though it may be at the point of final shipment, to await indefinitely the owner’s pleasure or the rise of markets, or to undergo a partial process of manufacture, or from any other cause having no relation to the preparation for or facilities or exigencies of transportation, it will be held to have acquired a situs, .making it subject to taxation.</p>

<p>Bailroad.—Master and. Servant.—Delegation of Master’s Duties to Agent.— Negligence.—Liability of Master.—Where a master delegates duties which the law imposes upon him to an agent, the latter, whatever his rank, in performing such duties acts as the master, and for an injury to an employee caused by the negligence of such agent, the master is liable.</p> <p>Same.—Foreman.—Fellow Sei'vants.—A foreman, or other like agent, except where the master’s duties are delegated to him, is a fellow servant with those under his immediate supervision, and for his negligence the master is not liable to a servant engaged in the same general service.</p> <p>Same.—Tunnel Repairer and Trainmen Fellow Servants.—One engaged in the work of constructing and repairing tunnels upon the line of a railroad, who is injured while being carried from one point to another upon the line of the road, is a fellow servant with the engineer and other persons in charge of the train.</p>

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

<p>Prom the Jennings Circuit Court.</p>

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

<p>Criminal Law.— Malicious Trespass.— Beal Estate.— Title.— Evidence.— Where, in a prosecution for malicious trespass to real estate in tearing down and removing a fence thereon, there was no evidence tending to prove that the real estate upon which the fence stood belonged to the person named in the affidavit as owner, a conviction can not be sustained.</p> <p>Same.—Claim of Title.—Intent.—Where the evidence shows that the trespass complained of consisted in the removal, by the employees of a railroad company, of a fence from real estate claimed by the company, to protect its rights, a charge for malicious trespass can not be rightfully prosecuted, in the absence of any malicious intent.</p> <p>Same.—Private Wrongs.—The machinery of the criminal law can not be properly invoked for the redress of merely private grievances.</p>

<p>Dedication.—Passive Acquiescence, with Knowledge, in Use of Uninclosed Lot irn Town for Street Purposes.—Mere passive acquiescence, with knowledge, hy the owner of an uninclosed and unimproved lot in a town or city, in its use by the public for street or highway purposes, until such time as he maybe able and willing to improve the same, does not constitute a dedication.</p> <p>Same.—Evidentiary Facte.—Intended Dedication.—Evidentiary facts, tending to prove an intended dedication, or from which it might possibly be presumed, are not themselves such an intended dedication.</p> <p>Same.— User.—General Highway Law.—It seems that the provisions of section 5035, K. S. 1881, in relation to highways by user, are not applicable to the public streets of a town or city.</p> <p>Supreme Court.—Joint Assignment of Error.—Practice.—An alleged separate error against one of several appellants is not presented on appeal by a joint assignment of error by all.</p>

<p>Assault and Battery.—Measure of Damages.—•Instruction.—In an action by a woman for damages resulting from an indecent assault and battery, it is not error to instruct the jury that while exemplary damages can not be given, the jury, in arriving at compensatory damages, are not necessarily restricted to the naked pecuniary loss, but may allow such damages as are the direct result of the act complained of, and for injury to reputation, social position, physical suffering, mental anguish, sense of shame, humiliation and loss of honor.</p> <p>Same.—In such case a new trial will not be granted for excessive damages unless they are so clearly excessive as to indicate that the jury acted from prejudice, partiality or corruption, or were misled as to the measure of damages.</p>

<p>Real Estate, Action to Recoves.—Right to Possession—Complaint.—Under sections 1050 and 1054, R. S. 1881, a complaint to recover the possession of real estate, which fails to allege that the plaintiff is entitled to the possession, or facts showing such right, is bad both before and after verdict.</p> <p>Same.—Defect not Cured by-Verdict.—The omission from the complaint of a fact essential to the plaintiff’s cause of action is not cured by verdict.</p>

<p>County Commissioners.—Power to Change Location of County Institutions. — The board of county commissioners lias power to change the location o£ county institutions and to do all acts necessary to effect the change, and such power is a continuing one, not exhausted by a single exercise.</p> <p>Same.—Order of Discontinuance Before Selling County Poor Asylum.—It is not necessary for the board to pass an order formally discontinuing the county asylum for the poor prior to selling such asylum, for the purpose of locating it elsewhere.</p> <p>Same.—Power to Sell County Property.—Such board may sell property when in its judgment it is no longer required for county purposes.</p> <p>Same.—Ministerial Act.—Discretionary Power.—Special Session.—An order for the sale of county property is a ministerial act, calling into exercise the discretionary powers of the board, and such order may be made at a special session and executed when the board is not in session.</p> <p>Same.—Delegating to Agent Power to Sell.—The mere act of selling may be done by the county auditor at the direction of the board.</p> <p>Same.—No Appeal from Ministerial Act.—Where the board exercises judicial functions in adversary proceedings, involving private rights, there is a right of appeal, but such right does not exist where such board acts in a purely ministerial or administrative capacity.</p> <p>Same.—Exercise of Statutory Power.—Where the statute prescribes the mode of exercising a power, that mode must be adopted.</p> <p>Same.—Notice of Sale.—Terms.—Price of Property Must be Fixed by Board.— Under the statute providing for the sale of county property by the board of commissioners, the notice of sale will be insufficient as to the terms upon which it is to be made, if it does not name the minimum price which it is the duty of the board to fix upon such property.</p> <p>Same.—Kind of Security Must be Specified.—“Approved Security.”—The notice of sale must also specifically state the kind of security which the purchaser will be required to give. It is not sufficient to designate it as a note with “ approved security.”</p> <p>Same.—Batification.—An act performed by a public corporation in violation of the terms of a statute can not be ratified.</p> <p>Same.—Estoppel of Public Officers.—One who deals with public officers with limited statutory powers is bound to ascertain the scope of their authority, and he can not found an estoppel upon acts done by them in excess of their authority.</p> <p>Same.—Where both the parties to a transaction have equal knowledge, or means of knowledge of all the facts, there can be no valid estoppel.</p> <p>Same.—Action by Board to Annul Sale Made by Previous Board.—An action may be maintained by a board of commissioners to set aside an invalid sale of county property made by a previous board.</p> <p>Practice.—Finding by Jury in Equity Case.—Venire de -Novo. — In cases of equity jurisdiction, properly triable by the court, the finding of the jury will be treated as advisory unless it appears that the parties and the court treated the case as an action at law, and its form and contents are not material unless adopted by the court, and a motion for a venire de novo is not proper.</p> <p>Same.—Province of Court.—Although a finding has been made by a jury in a case properly triable by the court, the ultimate decision of all questions of fact, as well as of law, must be made by the court, and where it renders judgment according to the merits of the case, there can be no-reversal.</p> <p>Same.—Evidence.—Harmless Error.—The admission of incompetent but harmless evidence is not available for the reversal of a judgment.</p> <p>Tender.—Befusal to Hear Tender.—One who, by his own conduct, prevents a full tender being made to him, can not afterwards complain that the tender made was not sufficiently specific.</p>

<p>Pleading.—Amendment.—Supreme Court.—Practice.—The decision of the trial court granting or refusing leave to amend a pleading, where cause is shown, is not conclusive, and may be reviewed in the Supreme Court.</p> <p>Railroad.—App'opriation of Land.—Amendment of Instrument of Appropriation.—Damages.—In a proceeding by a railroad company to appropriate land for a right' of way, it has the right, upon cause shown, to amend the instrument of appropriation after the filing of the report of the appraisers and the joining of issues on exceptions thereto, by adding stipulations as to the maintenance by the company of fences and crossings calculated to reduce the amount of consequential damages.</p> <p>Same.—Injunction.—Pleading.—Practice.—An application for an order restraining a railroad company from further proceedings in the matter of appropriating land for railroad purposes must be based upon a complaint making a proper case for such relief.</p> <p>Same.—Appeal from Award of Appraisers.—Judgment for Damages.—Statute Construed.—Under section 3907, R. S. 1881, on appeal from the award of damages made by the appraisers in a proceeding to appropriate land for a right of way, the circuit court can only render judgment for the amount of compensation found due the owner, and a judgment enjoining the railroad company, on its failure to pay such amount within a certain time, from going upon or using such land until the same is paid,, is erroneous.</p>

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

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

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

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

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

<p>' From the Fayette Circuit Court.</p>

<p>From the Judge of the Clark Circuit Court.</p>

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

<p>Municipal Corporation.—Injunction.—Taxpayer.—A taxpayer of a municipal corporation may maintain an action to enjoin the unauthorized expenditure of corporate funds, or the making of an investment that will result in loss to the corporation.</p> <p>Same.—Discretionary Powers.—While corporate officers may be enjoined from wasting corporate funds, they can not be enjoined from exercising a discretionary power as to the time, manner and plan of building structures for corporate purposes.</p> <p>Trusts.—Power to Lease Trust Properly.—Trustees possess general power to lease trust property, if the lease does not exceed the quantity of estate vested in them as trustees, and is a reasonable one.</p> <p>Same.—Devise to Charitable Uses.—Perpetuities.—A devise for a charitable purpose is in its nature perpetual, and does not come within the provisions of the statute against perpetuities, section 2962, B. S. 1881.</p> <p>Same.—Perpetual leases.—Municipal Corporation.—Order of Court.— Want of Power.—Where trustees of real estate devised in trust for a charitable use executed perpetual leases of such real estate to a municipal corporation for corporate purposes, such leases are not void because of the want of power in the trustees to execute them, nor are they void for the reason that the leases were not ordered or confirmed by the proper court.</p> <p>Same.—Action to Set Aside Leases.—It is the general rule that trustees of land devised to a charitable use should only lease for years, unless ordered by the proper court to lease for a longer term; but leases for lives or long periods, though executed without the sanction of the court having the control of the trust, will not be set aside in a collateral attack or at the suit of a stranger, unless they are so clearly unreasonable or detrimental to the beneficiaries that a court will not allow the leases to stand.</p> <p>Same.—Equity.—Rights of Lessee.—Equity will protect the rights of lessees who, acting under perpetual leases of real estate devised to charitable uses, have in good faith made permanent improvements, where such leases are set aside on the application of the proper parties.</p>

<p>.Promissory Note.—Discharge of Surety.—Notice to Sue.—Pleading.—To a . complaint on a promissory note, an answer by a surety, alleging that after the note became due he notified the plaintiff tó institute suit thereon, but failing to allege that the plaintiff did not bring suit as required, and not averring any other fact as a reason for the defendant’s release from liability, is bad on demurrer, an averment that the defendant was so released being a mere conclusion of law.</p> <p>Same.—Evidence.—Issues.—Evidence, incidentally given, but not applicable to any issue formed on the pleadings, can not be taken into consideration in determining whether the finding was right upon the evidence.</p> <p>New Trial.—Impeaching and Cumulative Evidence.—As a general rule, a ■ new trial will not be granted simply to let in newly discovered impeaching evidence; nor will the discovery of merely cumulative evidence be sufficient ground for a new trial.</p>

<p>Lease.—Contract to Sell al Pkpiraiion of Term.—Specific Performance.—Mutuality.—Pqwity.—A complaint by H. alleged that on a certain date B., the defendant, leased to him certain real estate for the term of five years, with the agreement in the lease that B, would sell and convey by warranty deed, and JL should have the right to buy such real estate at the expiration of such lease, the price to be fixed by three appraisers, one to he chosen by each, and the third by the two so chosen; that under such contract H. took possession and in good faith placed valuable improvements on the property which could not be removed without total loss; that at the expiration of such lease H. notified B. of his election to buy such real estate, selected his appraiser, and in all respects was ready to comply with the contract on his part, but B. wholly refused 'to comply with the same. Prayer tor specific performance, etc.</p> <p>Held, that the complaint stales a case for equitable relief, and is good on demurrer.</p>

<p>Partnership.—Agreement to Pay for Services of Partner.—Pleading.—A partner can not recover for services rendered a firm of which he is a member, unless there is an agreement that he shall recover therefor; and a pleading, alleging that the services were rendered at the speciál instance and request of the members of the firm, is bad on demurrer.</p> <p>Same.- -Equity.—Accounting.—Under the code of 1881, a suit between partners for an accounting is one of equitable jurisdiction, and not triable as of right by a jury.</p> <p>Practice. — Pleading. — Harmless Error. — Where the general denial is pleaded, it is a harmless error to sustain a.demurrer to an argumentative denial.</p> <p>Same.—Continuance.—Sufficiency of Affidavit.—Sickness.—A party who desires the postponement of a case which he knows is set for trial, should make application in due season, fully setting forth the causes upon I which he asks the delay; and the trial court is not bound to continue a cause upon the general and indefinite statement in an affidavit that a party’s absence is caused by sickness in his family.</p> <p>•Same.—New Trial.—Affidavits filed subsequent to the ruling on the application for a continuance can not be considered, except' perhaps upon a motion for a new trial.</p>

<p>Damages.—Action for Personal Injury Does not Survive.—Malpractice.—Cases Limited.—Under section 282, R. S. 1881, an action against a surgeon for malpractice to recover for an injury to the person, in whatever form it may be brought, does not, on the death of the defendant, survive against his personal representative. Staley v. Jameson, 46 Ind. 159, and Bums v. Barenfield, 84 Ind. 43, limited.</p> <p>Elliott and Zollars, JJ., dissent.</p> <p>Partnership.—Abatement of Action Against One Partner.—Quaere, whether, upon the death of one of two partners sued jointly for malpractice and the consequent abatement of the action as to him, the action also abates as to the other? In any event, however, a plea is necessary.</p> <p>Practice.—Abatement.—Arrest of Judgment.—Where the action has abated as to one of two persons sued jointly, no judgment can be properly pronounced on a verdict against both, over a motion in arrest.</p> <p>Same.—A judgment should be arrested where such error appears on the face of the record as vitiates the proceedings.</p> <p>Evidence.—Declarations of Partner.— When Admissible.—To make the declarations of one partner admissible against the firm, they must have been made in the course of the partnership business and with respect to a transaction pertaining thereto.</p> <p>Same.—When not Admissible.—Bes Gestee.—The admissions and declarations of one partner, made after the event to which they relate has transpired, are not admissible against the other unless part of the res gestas.</p> <p>Same.— When Opinion of Physician as to Treatment of Case not Binding on Partner.—Opinions expressed by one physician, in the absence of his partner, after the employment is at an end, as to the propriety of the treatment or the results attained, are not binding on the latter.</p> <p>Same.— Expert.— Hypothetical Question.— Province of Jury.—In an action against a surgeon for malpractice, a hypothetical question which asks a witness to assume that statements made by the defendant as to the cause of certain depressions and enlargements about a dislocated joint, with all the other facts supposed, are true, and upon the whole question give his opinion as an expert whether a reduction of the joint was accomplished, is within the rule.</p>

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

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

<p>School Fund.—Expense of Management.—The Constitution requires the counties to bear the expense of managing the school fund.</p> <p>Same. — Action Against County.—An action will lie against a county for money paid out of the school fund to its officers for managing such fund.</p> <p>Same.—Direct Trust.—Statute of Limitations.—The county in receiving and disbursing the school fund acts as the trustee of a direct trust, and against such a trust the defence of the statute of limitations can not be interposed.</p> <p>Same.-—Settlement Between Board of Commissioners and County Officer Does not Conclude State.—A settlement between the board of commissioners and a county auditor, or other county officer, does not conclude the State from maintaining an action to recover school funds unlawfully paid to an officer by the board.</p> <p>Former Adjudication.— Different Causes of Action.— There can be no former adjudication where the causes of action are different.</p>

<p>Deed.—Delivery.—Acceptance.—Quieting Title.— Conveyance of Parent to Infant Child.—Presumption.—Where, in an action by a father against his daughter to set aside a deed and quiet title, the facts undisputed are, that the father, without any money consideration, and without the knowledge of the grantee, conveyed to his daughter, a child six and one-half years old, living with her father, by deed in fee simple, the real estate in controversy, and shortly thereafter caused said deed tQ be recorded, it will be presumed that the deed was delivered to, and accepted by, the grantee.</p> <p>Practice.—Weight of Evidence.—The Supreme Court will not reverse a judgment upon the weight of the evidence where there is evidence tending to sustain the finding of the lower court.</p>

<p>Telegraph Company.—Power to Regulate Office Hours.—Under section 4176, B. S. 1881, a, telegraph company may regulate, reasonably, its office hours according to the requirements of the business at the various points where it holds itself out for public service.</p> <p>Same.—Failure to Transmit.—Slatutoi-y Penalty.—The penalty for failing to seasonably transmit a message is not incurred unless there is a failure to receive and transmit during the usual office hours, both at the point where the message is received and that to which it is transmitted.</p> <p>Same.—Information to Agents as to Office Hours at Different Points.—To avoid the statutory penalty, it is not necessary that a telegraph company should keep its agents at all points informed concerning the office hours at all other points, so that the sender of a message may be voluntarily apprised of any probable delay in its transmission on that account. But it seems that a case might arise where the company would be bound to ascertain and disclose its inability to transmit the message speedily or be liable in damages.</p> <p>Howk, J., dissents.</p>

<p>Married Woman.—Contract.— Coverture.—Where, to an action on contract against a married woman, she pleads coverture, the plaintiff must reply the facts which show that the contract declared on is one which she had power to execute.</p> <p>Same.—-Executory Contract.—Statute Construed.—Under section 5115, K.. S. 1881, a married woman has general power to make executory contracts except in certain specified cases; and the provision of section 5117, that she may make contracts concerning her separate personal property! is not a limitation upon such general power.</p> <p>Same.— Wearing Apparel.—Promissory Notes.—A married woman may purchase wearing apparel for herself, and notes, executed by her for the price which she agreed to pay therefor, are valid, and may be enforced.</p>

<p>New Promise.—Beviml of Debt Discharged by Bankruptcy.—The promise, by which a debt discharged by bankruptcy proceedings is revived, must be express, clear, distinct and unequivocal, in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt.</p> <p>Same.—A promise, in these words: “ I do not intend you shall lose it, I will make it all right,” is not a sufficient new promise to revive a debt . discharged by bankruptcy. Hubbard v. Farrell, 87 Ind. 215, criticised.</p>

<p>Contract.—Acceptance.—Performance.— Consideration.— Mutuality. —Where a contract is signed by one only of the contracting parties, but is accepted by the other party, and affirmative acts constituting the consideration thereof are performed by the latter, it is the mutual and binding contract of both.</p> <p>Railroad.— Contract.—Consideration.—Where parties, in consideration of the benefits which will accrue to them by the construction of a railroad through a certain county and town, bind themselves in a sum sufficient to pay for the right of way across the county, they can not, after the road is so constructed, claim want or inadequacy of consideration to defeat the contract.</p> <p>Same.— Ultra Vires.—One who has received from a corporation the full: consideration of his agreement to pay money, can not avail himself of the objection that the contract is ultra vires.</p>

<p>Statute of Limitations.—Money Received by Public Officers.—Trusts.—The mere receipt of money under claim and color of right by public officers, does not constitute them trustees in such a sense as to bar the defence of the statute of limitations. ></p> <p>Same.—Taxes Illegally Collected.—An ordinary action may he maintained to recover taxes illegally assessed and collected.</p> <p>Same.— When Statute of Limitations a Valid Defence.— Where money can be recovered in an ordinary action, the statute of limitations is a valid defence.</p> <p>Same.—Can not he Made to Direct Trusts.—Equity.—It is only to direct trusts, exclusively cognizable by courts of equity, that the defence of the statute of limitations can not be made.</p> <p>Same.—Demand.—Where a demand is necessary to mature a cause of action, it must be made before the statute of limitations has run, to be available.</p> <p>Same.—A demand is not essential to create a cause of action for taxes illegally collected.</p>

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

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

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

<p>Drainage.—Notice.—Where notice of an intention to file a petition for drainage is of the character prescribed by the statute, it is sufficient. Same.—Need not be Formally Approved by Court.—Where the court acts upon the notice, no formal order approving it is necessary.</p> <p>Same.—Sufficiency of.—Ordinarily it is sufficient to serve notice on the person who is described in the petition and is named on the tax duplicate as the owner.</p> <p>Same.—Docketing.— Waiver.—Practice.—A failure to note on the petition the day for docketing the same is a mere irregularity, and if not objected to within three days after it is docketed the objection is waived.</p>

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

<p>Common Carrier.—Ownership of Goods Consigned.—Pleading.—A complaint against a common carrier, alleging that it negligently failed to deliver certain goods consigned by the plaintiff, to his damage, is bad on demurrer, in the absence of an averment that the plaintiff owned the goods.</p> <p>Same.—Presumption.—The right of action against a common carrier, for the loss or damage of goods consigned, will he presumed to be in the consignee, in the absence of allegations showing the contrary.</p> <p>Pleading.—Evidence.—The sufficiency of a complaint must be determined by the facts pleaded, and the court can not look to the evidence to ascertain whether any injury resulted from the ruling on demurrer.</p>

<p>Partition.—Sale by Commissioner.—Rights of Surety.—Parties.—Re-Sale.— > One who is surety for the payment of purchase-money, upon a sale of real estate by a commissioner in partition, becomes a party to the proceeding, as also does the purchaser, and, upon the failure of the latter to pay, the surety may petition for, and the court in the exercise of its chancery powers may grant, a re-sale of the property,</p>

<p>Supreme Court.—Practice.—Error Must A ffirmatively Appear.—A party who alleges error must present a record affirmatively showing it; otherwise all reasonable presumptions will be made in favor of the proceedings of the trial court.</p>

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

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

<p>Habeas Corpus.—Custody of Infant.—Interest of Child Paramount Consideration.—In a habeas corpus proceeding by a father to obtain the custody of his infant child from its maternal grandparents, the welfare of such child is the paramount consideration, and the order of the court must he made accordingly.</p> <p>Same.—Supreme Court.— Weight of Evidence.—Exception to Rule.-—When a habeas corpus case is before the Supreme Court on the evidence, the sufficiency of such evidence to sustain the finding will be passed upon.</p>

<p>Gravel Road.—Delay in Acting upon Petition.—Mere delay of the board of commissioners in taking action upon a petition for the establishment of a free gravel road does not render proceedings afterwards had thereunder void.</p> <p>Same.— Viewers Must Meet at Time Designated.—Notice.—Jurisdiction.—Where the viewers appointed under a petition for a free gravel road do not meet at the time designated in the order appointing them, and in the notice given pursuant thereto, they can exercise no jurisdiction, and their acts are void.</p> <p>Same.—Taxes.—Injunction.—Injunction will lie to restrain the collection of taxes where the proceedings of the board of commissioners are void.</p>

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

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

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