Volume 104 — Indiana Reports

<p>Real Estate. — Description.—In descriptions of real estate, monuments first control, then courses and distances, and lastly the designated quantity.</p> <p>Same. — Deed.—Intention of Parlies. — When there is a contest between the parties as to what has passed by a deed, the circumstances under which it was executed, and the intention of the parties, ought to be considered.</p> <p>Same. — Covenants of Title. — Limitation of. — Covenants of title must be lim- . ited to the estate, as well as to the particular parcel of ground, intended to be conveyed, as evinced by the description in the deed, when applied to the property as it was situated at the time of the conveyance.</p> <p>Same. — Seizin.—Breach of Warranty. — K., while the owner of a lot, built two houses thereon, one of which was intentionally lapped over twenty inches upon the north half of said lot. He subsequently conveyed the whole lot to A. Afterwards A., believing that all the south house was situate upon the south half, conveyed said south half to C. and the north half back to K. By proceedings for that purpose against K. and A., O.’s deed was reformed so as to make it convey all the ground, including the twenty inches, upon which the south house stood. K. sued A, on his covenants of warranty to .recover damages.</p> <p>Held, that K., having knowledge of all the facts at the time of taking his. deed, and that O. was in possession of the south house and the ground upon whiph it stood, under claim of title, can not recover.</p>

<p>Practice.— When Defective Complaint Cured by Judgment. — Supreme Court.— Where the defects in a complaint are such as may be obviated by evidence on the trial, they will be held cured by the finding and judgment, when questioned for the first time by an assignment of error in the Supreme Court.</p> <p>Change oe Judge. — Affidavit.— Practice — Under section 412, R. S. 1881, in any civil action, when the proper affidavit for a change of judge is made and filed by a party, the court, or the judge in vacation, has no discretion, but must grant the change.</p> <p>Same. — Proceedings Supplementary to Execution. — “Civil Action.” — A proceeding supplementary to execution is such a civil action as entitles a party, upon a proper application, to a change of venue or judge.</p>

<p>Railroad. — Ejecting Passenger from Train. — Liability of Company. — A railroad company is liable to one who has been ejected with unnecessary force from a train by the conductor, although the latter had a right to expel such person and to use reasonable force for such purpose.</p> <p>Same. — Degree of Force. — The degree of force is not to be determined by results only, but other facts, such as the resistance made by the passenger, must be taken into consideration.</p> <p>Same.— Complaint. — Where a complaint proceeds upon the theory that unnecessary force was used in ejecting the plaintiff, it must state such facts as show that the act of the conductor was unlawful, i. e., by alleging facts showing that the force employed was unnecessary.</p> <p>Same.— Wrongful Expulsion. — An action may be maintained against a railroad company by one who has been wrongfully ejected from a train, without regard to. the degree of force used in the expulsion.</p> <p>Same. — Stopping ai Siations. — Buies of Company. — Bights of Passengers. — A passenger has no right on a train which, under the rules of the company, does not stop at the station for which he purchased a ticket.</p> <p>Same. — Complaint.—A complaint by a ticket-holder for wrongful expulsion must aver that, under the rules of the company, the train on which he took passage should stop at the station named on his ticket.</p> <p>Pleading. — Theory of Complaint. — A complaint must proceed upon a distinct and definite theory, and upon that theory the case must stand or fall.</p>

<p>Divorce. — To what Extent Proceeding is Special. — Divorce proceedings are so far special as to allow all the provisions of the divorce act to have their full force, unaffected by the civil code.</p> <p>Same.' — To what Extent Code Applies. — “Civil Cases” and “Civil Actions.”— Pleading and Practice. — Divorce cases, having been of equitable cogni. zance before the adoption of the Constitution, are not included in the term “ civil cases,” as used in the Bill of Bights ; but under section 1 of the civil code (being section 249, B. S. 1881), they are “civil actions” in such a sense that the rules of pleading and practice therein provided will apply, except to the extent that a different procedure may be provided in the divorce act, and to the extent that it' may be apparent that the Legislature intended otherwise.</p> <p>Same. — Change of Judge. — Case Criticised. — A divorce proceeding is a civil action in such a sense as entitles a party thereto; upon filing the proper affidavit, under section 412, B. S. 1881, to a change from the judge on. the ground of hias and prejudice. Musselman v. Musselman, 44 Ind. 107, criticised.</p> <p>Change oe Venue. — Appointment of Special Judge.— Waiver of Irregularity. — Vacation of Judgment. — One who does, not object to the granting of a change of venue nor to the appointment and service of a special judge, can not afterwards maintain an action to vacate the judgment on the ground that such change and the appointment of the special judge were without authority.</p>

<p>Married Woman.' — Exclusion of Evidence, — Pleading.'—-Where to a suit on a promissory note, against a married woman and her husband, she answers her coverture, and that she executed the note as surety for him, it is error to exclude evidence, offered in support of her plea, that she was at the time of executing the note a married woman, and that she signed it as surety for her husband, although the reply alleged that the note was executed in part payment of the purchase-price of land sold and conveyed to her.</p> <p>Same. — Signature to Note. — A finding in such case against Warren West is sustained by the introduction of a note signed “ W. West.”</p>

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

<p>Malicious Prosecution. — Malice.—Probable Game. — Practiee.—In an action for malicious prosecution, the jury may infer malice from the want of probable cause; and where there' is evidence from which it could be found that the prosecution was instituted without probable cause, the verdict will not, on the evidence, be disturbed on appeal.</p> <p>Same. — Objection to Phidence. — Practice.—Objections to evidence, on the ground of immateriality or irrelevancy, will present no question for decision, where such fact is not apparent on the face of the evidence.</p> <p>Same. — Motive.—Pkidence.—It is competent for the defendant in an action for malicious prosecution to testify that he was not actuated by malice, and as to what his motive was in instituting the prosecution complained of.</p>

<p>Subrogation.— Volunteer. — Payment of Claim. — Payment of a claim may be made by a third person; and where a claim is paid by a third person who has no existing interest in the matter, such payment is an ex-tinguishment of the claim, and such person is a mere volunteer, and not entitled to subrogation.</p> <p>Promissory Note. — Payment.—Question of Fact. — Whether a transaction between the holder of a promissory note and the person who pays the money therefor is of such a' character as to constitute a payment that will operate tp extinguish the debt, is generally a question of fact.</p> <p>Same. — Transfer of Note. — Contract.—Payment is the discharge of a debt, and is not a contract. The purchase of a note is a contract of sale requiring the mutual" assent, either express or implied, of a buyer and seller, and a consideration.</p> <p>Same. — Agreement mth Maker. — Where a third person, at the request of the maker, pays to the holder of a promissory note the amount due thereon,.and receives the note, his agreement with the maker can not be considered in determining whether the note was purchased or paid off.</p>

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

<p>Receiver. — Pleading.—Practice. — Ordinarily, the sufficiency of a complaint, in an action in which a receiver is applied for, can not be tested by demurrer, or otherwise, at the time of the application.</p> <p>Same. — Appointment.—Purpose of Action. — The appointment of a receiver may be part of the relief asked in a complaint in actions of the class in which receivers may.be appointed, but it is doubtful whether this can be the sole purpose of an action.</p> <p>Same. — Partnership.— When Receiver will not ie Appointed. — Where a partnership has expired by limitation, and neither party desires to continue the business, a receiver will not, on the_application of one, be appointed to settle the partnership affairs, in the absence of any showing of mismanagement or improper, conduct on the part of the person against whom the relief is sought.</p>

<p>Judgment. — Clerical Mistake. — Amendment.—Courts having jurisdiction to render a judgment have inherent power to amend clerical mistakes in a direct proceeding for that purpose, where the rights of third persons have not intervened.</p> <p>Same. — Equity.—Interlocutory Order. — Proceeding for Amendment. — An interlocutory order entered in a matter, of purely equitable jurisdiction is within the control of the court making it until the proceeding in which it is made is finally disposed of, and it maybe amended, modified or set aside, as the right of the case requires, either upon direct and summary proceedings for that purpose, or by the court upon its own motion. Same. — Practice.—In such cases the court should hear the application for relief upon its merits, in a summary way, with leave to any party interested to reserve an exception upon any ruling, as in other interlocutory proceedings.</p> <p>Receiver. — Interlocutory Order.-- — Mistake.—Amendment.—Where a receiver, previous to a final settlement, is by a mistake ordered to pay out more money than had or would come into his hands as such receiver, he is entitled to have the order modified.</p>

<p>Railboad. — Negligence.—Action for Injury. — Proximate Cause. — In an action against a railroad company to recover damages for injuries caused by its alleged negligence, the complaint must not only charge the defendant with the negligent acts, whether of commission or omission, but also show with reasonable certainty that such acts were the direct or proximate cause of the accident or injury.</p> <p>Same. — Allegation of Negligence.— In such case, the allegation in the complaint, that the defendant, with gross negligence and in a careless and reckless manner, caused one of its locomotives, then and there operated ■ by its servants and agents, to rapidly approach the street crossing where the accident-occurred, without having the headlight lit in said locomotive, and without giving any reasonable, timely or proper warning, notice or signal of its approach, either by ringing the bell or blowing the -whistle at a safe and reasonable distance from said crossing, fails to show that the accident or injury was caused by the negligence of the defendant.</p> <p>Same.— Contributory Negligence. — Presumption.—Where, from the specific facts alleged in a complaint, it might well be presumed that the plaintiff was guilty of contributory negligence, yet such presumption is one of fact, and will not be allowed to overcome or outweigh the positive averment of plaintiff to the contrary.</p>

<p>Principal and Agent.— Book-keeper.— Trust.— Embezzlement.— A bookkeeper or salesman, who receives the money of his employer by virtue of his employment, receives it in a fiduciary capacity, and if he fraudulently appropriates it to his own use, he is guilty of a breach of trust.</p> <p>Same. — Property Purchased with Embezzled Money. — Equity.—Where an agent, in violation of his trust, uses the money of his principal in the purchase of property, the law implies a trust in favor of the principal, and equity will subject.such property to the latter’s claim as against either a volunteer or a fraudulent grantee.</p> <p>Same. — Judgment for Amount Due in Excess of Value of Property. — The beneficiary can not follow the trust into the property purchased by the agent and also compel payment of the money frojn the latter; hut he may obtain a judgment for the sum remaining due after deducting, the value of the property, and in one action secure both equitable and legal relief.</p> <p>JSviPEsrcE. — Undertaldng to Defraud. — Admissions.—Where two persons unite in a common undertaking to defraud another, the admissions of one are competent against both, although there is no direct evidence of a conspiracy.</p> <p>'Same. — Sufficiency in Civil Cases. — It is sufficient in all civil cases that the evidence supplies reasonable grounds for inferring facts essential to a recovery.</p> <p>•Same. — Admission without Objection. — Practice.—Evidence admitted without objection in the trial court can not be questioned on appeal.</p>

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

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

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

<p>Railboad. — Duty of Company as to Safety of Employees. — It is the duty of a railroad company to so construct aiid maintain its roadway and appendages, and its overhead structures, that its employees can perform the labor required of them with reasonable safety.</p> <p>Same. — Low Bridge. — Liability for Injury to Employee Caused by. — Where a railroad company has constructed and maintains a bridge over its track •with knowledge that it is of insufficient height and dangerous to its employees in the discharge of their duties, it is liable to a brakeman, ignorant of the danger, who is injured while passing under such bridge in the performance of his duties.</p> <p>Instbuctions to Juby. — Presumptions -when Evidence not in Record. — Where the evidence is notin the record, a judgment will not be reversed on account, of instructions given, if they would have been correct under any supposable state of the evidence under the issues. In such case, also, it will be presumed that instructions refused were not applicable to the case made.</p> <p>Special Finding. — General Verdict. — Judgment Non Obstante. — All reasonable presumptions are indulged in favor of the general verdict, while nothing will be presumed in aid of the special findings; and where the facts specially found by the jury, construed together, are not inconsistent, but may, upon any hypothesis, be reconciled, with the general verdict, the latter must stand.</p>

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

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

<p>Principal and Surety. — Liability of Surety. — A surety will not be held beyond the terms of his engagement, but the latter must be reasonably interpreted.</p> <p>Same. — Contract.—Bond for Performance of. — Sureties in a bond given to secure the performance of a contract are presumed to have contracted with knowledge of and reference to the terms of such contract, and they are bound by it if valid.</p> <p>‘Contract. — Construction of. — Intention of Parlies. — Courts will give a written contract such a reasonable construction as will make it effective according to the intention of the parties, and for this purpose it must be considered as a whole.</p> <p>Same.— Uncertainty. — Sm-plusage.—Sureties for Performance. — A contract to do, according to specifications, all of certain kinds of work on the line of a railroad, “ in the county of--, State of Indiana,” and “ that the work embraced in this contract shall be prosecuted with such force .and at such places ” as the other party may direct, is not, taken as a whole, void for uncertainty in not naming the county, as the words county of--,” may be rejected as surplusage, and the contract given effect and made binding on sureties for performance.</p>

<p>Bailment. — Lien of Mill-Owner for Sawing Lumber. — Where a mill-owner contracts to saw lumber for another at a stipulated price per thousand feet, his lien is not limited to any given lot of lumber for the price of sawing the same, but extends to the quantity in his possession for any general balance due him.</p> <p>Same. — Action for Possession. — -Partnership.—One Partner may Set wp Lien Held by Firm. — Where one partner only .is made a defendant to an action for the possession of personal property, he may set up and rely upon a lien held by the firm in defence of his possession.</p> <p>Same. — Surrender of Possession. — The voluntary surrender of the possession of property, upon which a lien is held, operates as a waiver of the lien; but mere permission by the lien-holder to an employee of the owner to pile up lumber in the former’s mill-yard for its better preservation, is not a surrender of possession.</p>

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

<p>Telegraph Company. — Buie Requiring Transient Person Sending Messages to Deposit Money for Answer. — A rule of a telegraph company, that transient persons sending messages which require answers must deposit an amount sufficient to pay for ten words, is reasonable and valid, and the company may, without liability, refuse to transmit a message until the deposit to pay for the answer is so made. -</p>

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

<p>Statute op Fbauds. — Parol Representation^ as to Credit of Another. — Parol representations concerning the character, conduct, credit, ability, trade1 or dealings of any other person, by-one not a party to the transaction, with the1 intent that such other person shall obtain credit thereby, are-within section 6 of the statute of frauds, the same being section 4909, R. S. 1881. . ' ‘</p> <p>Same. — Conspiracy.—Such representations, made -by one so situate for the purpose of'enabling another to obtain credit-are equally within the statute, whether made as the result of a conspiracy or not.</p> <p>Same. — Fraudulent Representations Advantageous to Maker. — Such representations are none the less within the statute for having been fraudulently made, with an expectation tha.t some incidental advantage might flow to-the person making them from the credit induced thereby.</p> <p>Same. — Representations as to Particular Property and .ásseís of Another. — Parol representations concerning the particular property and assets of another,, made with a view to establish the general credit and pecuniary ability of the other, are also, within the statute.</p>

<p>Railroad. — Liability to Third Persons for Stock Killed at Private Ci'ossings. — Case Explained. — Where, for the convenience of a farmer whose lands lie on both sides of a railroad, gates are put in the fence on each side of the track for a private crossing, he assumes the risk of all increased danger resulting therefrom, and as to him the track will be considered as having been securely fenced as the statute (section 4031, R. S. 1881) requires; but as to all other persons the railroad company is bound, at its peril, to keep the gates closed. Grand Rapids, etc., R. R. Co. v. Jones, 81 Ind. 523, explained.</p> <p>Same. — Cattle-Pits.—Qucere, whether a railroad company can relieve itself from liability to all persons for killing stock at a strictly private crossing by putting in cattle-pits and other safeguards, either instead of or in addition to gates in its fences?</p> <p>Instructions to Jury.— When Court May Direct Verdict. — When the controlling facts in a case are admitted or not controverted, it is not error for the court to instruct the jury as to what their verdict should be.</p>

<p>Assignment for Benefit of Creditors. — Exemption.—One who makes a voluntary assignment for the benefit of his creditors, stands merely on the same footing as regards exemption of property as an execution debtor.</p> <p>Same. — Assignment by Partners. — An assignment by partners of the partnership property for the payment of the firm debts is valid, although it does not embrace the individual property of any of the partners.</p> <p>Same. — Partner not Entitled to Exemption from Firm Assets. — Where partners make a voluntary assignment of the partnership property for the benefit of their creditors, they are not entitled to any exemption from such property until the partnership debts are fully paid.</p>

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

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

<p>Taxes. — Lien for Taxes Paid while Holding Title.— Volunteer. — One who, while holding the title to real estate under a sheriff’s sale, redeems it from a tax sale, and also pays other taxes thereon, may, where such sheriff’s sale is set aside, enforce a lien for the taxes paid, as he can not he deemed a volunteer.</p>

<p>Evidence. — Pleadings.—The pleadings in a cause, as well as the other papers constituting the basis of the action, are before the court without being read in evidence.</p> <p>Practice. — Amendment of Complaint. — Statute of Limitations. — An amendment to a complaint has relation to the time at which the complaint was filed. It is only where the amendment sets up some claim or title, not previously asserted, and involving the statute of limitations, that a different rule applies.</p> <p>Same. — School Corporation. — "Where it is apparent that a town was sued as a school corporation, but it is not specifically described as such in the complaint, the filing of -an amended complaint so describing it relates back to the time of filing the original complaint.</p> <p>Sale. — Payment in Void Securities. — Where a sale is for cash, and securities which are void, or prove to be void, are taken in payment, the creditor may sue and recover on the original cause of action.</p> <p>Same. — Question for Jury.— Weight of Evidence. — Whether a given transaction, in a controverted case, constitutes a payment, is a question for the jury, and its verdict will not be disturbed on the weight of the evidence.</p>

<p>Watebcoubse. — Change of Channel. — Riparian Owner. — Acquiescence.—Estoppel. — Presumption.—Where a change is made in the flow of a natural watercourse, either artificially or otherwise, and riparian owners acquiesce in the new state of the stream for so long a time that new rights accrue, or may be presumed to have accrued, such acquiescence is binding, and precludes a restoration of the stream and its surroundings to their original condition.</p> <p>Same. — Canal.—Right of Way. — Eminent Domain. — Benefits and Damages.— Presumption. — Statute of Limitations. — Where land is taken for a right of way for a canal under condemnation proceedings for that purpose, it will be presumed that all direct benefits to the owner were included in the assessment of damages; and where the canal company constructs embankments and structures which protect a riparian owner’s land from overflow, and maintains them for such a period of time as to permit the running of the statute of limitations, it will be presumed that the acquiescence of the owner of the fee was due in part to the benefit which accrued to his land-from such enbankments and structures, and that all the damages were assessed and paid. '</p> <p>Same. — Abandonment of Canal. — Rights of Riparian Owner. — In such case the abandonment of the canal will not divest the owner of the fee of his right to have the embankments and other structures maintained permanently for the protection of his land.</p> <p>Injunction.— Watercourse. — State of Stream. — Where a person is undertaking to destroy an existing watercourse, or to wrongfully change the existing state of the stream, so as to materially injure another’s land, the latter is entitled to an injunction.</p> <p>Supbeme Coubt. — Subn^ssion by Agreement. — Dismissal of Appeal. — Notice to Co-parties. — Where, on appeal, a cause is submitted by agreement, a motion to dismiss on the ground that notice of the appeal has not been given to co-parties, comes too late to be available.</p> <p>Coubts. — Jurisdiction.—State Comity. — The courts of this State have jurisdiction to prevent a-wrong to a citizen of another State where the wrong consists in doing an act upon land in this State.</p>

<p>Novation. — Elements of. — Novation is the substitution of one debtor, by mutual agreement, for another, whereby the old debt is extinguished. Same. — Assumption of Debt by Purchaser of Meal Estate. — The agreement of a purchaser of real estate to pay a debt evidenced by a promissory note and secured by a mortgage, as a part of the purchase-price, even where the payee subsequently agrees to accept the purchaser as the payor and release the maker, does not constitute a novation.</p> <p>Same. — Pleading.—Conclusion of Law. — An averment that the payee did release the maker is the statement of a mere conclusion of law.</p>

<p>Appeal. — Time of. — Dismissal.—Practice.—An appeal not taken within one year from the time the case was finally disposed of on its merits will be .dismissed.</p>

<p>Change of Judge. — Proceedings Supplementary to Execution. — “Oivil Action.” —A proceeding supplementary to execution is a civil action within the meaning of sections 412-417, R. S. 1881, providing for a change of venue or a change of judge; and it will be error in such case to overrule a proper motion for a change of judge.</p>

<p>Beal Estate, Action to Becover. — Statute of Limitations. — When Begins to Bun. — The statute of limitations begins to run only when the right of action accrues; and in the case of a claim to the possession of real estate, the right of action does not accrue until there is a right of entry.</p> <p>Same. — Sale on Execution against Husband, Alone.— Wife’s Interest. — -Where land was sold in 1854 upon an execution against the husband alone, the-right of the wife to enter into possession of the land did not vest untiL the death of her husband, and an action may be brought within twenty-years from that time.</p> <p>Same. — Interest Taken by Purchaser. — A sale made upon a judgment rendered against the husband alone does not convey the interest of the wife, but only that of the husband.</p> <p>Same.— Unrecorded Deed. — In such case the fact that the husband’s deed to-the land was unrecorded can not deprive the wife of her rights as against a person claiming title under such sale.</p> <p>Sheriff’s Sale. — Position of Purchaser. — A purchaser at a sheriff’s sale occupies the same position as if he had purchased the property from the debtor at the same date as that on which the judgment was rendered.</p> <p>Deed. — Quitclaim.—Golor of Title. — Police.— Sheriff’s Sale.— A quitclaim deed executed by one having no title, e. g., by one who has previously conveyed all his interest in the land, does no‘t convey even color of title-to one who takes with notice. One who buys at a sheriff’s sale made on a judgment against the first grantee will take a quitclaim deed from the grantor with notice.</p>

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

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

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

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

<p>New Trial as of Eight. — Action to Recover Real Estate. — Leasehold Interest. — A leasehold for a term of years is such a “ valid subsisting interest in real property” under section 1050, E. S. 1881, as entitles-the lessee, in an action to recover possession, to a new trial as of right under section 1064, E. 8. 1881.</p> <p>Evidence. — Partnership.—Lease of Land for Particular Business. — Rents.— Action to Recover Real Estate. — Where, upon the formation of a partnership to conduct the business of grape culture, one partner, in furtherance of the business, takes a lease for a term of fifty years to a part of the land to be used in such business and owned by the other, and then, upon a dissolution, by agreement a portion of the vineyard is set apart to the lessee in severalty, without any limitation as to its use, the latter may, in an action by him subsequently brought to recover its possession, prove its rental value for general purposes, and evidence offered by the defendant as to its rental value for grape culture only, is not admissible.</p> <p>Practice.— When Eirorin Excluding Evidence Cured by Withdrawing Objection to Admission. — Where evidence is excluded on objection, but immediately thereafter the objection is withdrawn to the only part of it which is material, the error, if any, is cured, although the party offering the evidence declines to avail himself of the concession.</p> <p>Former Adjudication. — Judgment on Eemurrer. — Where a case is disposed of on judgment-upon demurrer to an answer, and not upon its merits, it does not constitute a former adjudication. It is only where the matter in issue has been either actually or presumptively determined, that the judgment is a bar to another action.</p> <p>Eeal Estate, Action to Eecover. — Action upon Claim in Fee Simple not Bar to Action under Lease. — The commencement of an action upon a claim of title in fee simple does not estop the plaintiff from subsequently bringing an action for the same land on a claim under a lease.</p>

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

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

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

<p>Negligence. — Sufficiency of Complaint Charging. — In common law actions based on the negligence of the defendant, it must appear from the complaint, either by direct averment or from the statement of such facts as-to a certainty raise the presumption, that the injury was the result of the defendant’s negligence.</p> <p>Same. — Negligence Depends on Facts of Case. — Whether a party was negligent in a particular case depends on the facts in that case, without regard to. whether the conduct of the party was that of an ordinarily prudent man. For instructions on this subject see opinion.</p> <p>Bailroad. — Negligence.—Stepping from Moving Train. — Defective Depot Platform. — A complaint against a railroad company by a passenger who was-injured in stepping from a slowly moving train upon the platform of a regular station, alleging that the platform “ had been suffered to get out of repair and wholly unsuitable for the reception of passengers,” and that it had settled down in the center, forming an incline which caused the plaintiff to slip and fall under the train, of which defect the plaintiff had no knowledge, is not sufficient.</p> <p>Same. — Degree of Care as to Platforms and Approaches. — With respect to it» platforms and approaches, a railroad company is only held to that reasonable degree of care which is demanded of individuals upon whose premises others come by invitation or inducement for the transaction of business.</p> <p>Same. — Evidence as to Condition of Platform After Injury. — Evidence as to the condition of the platform some time after the injury is not admissible, unless it be shown that its condition is substantially the same as at the time of the injury.</p> <p>Evidence. — Proof of Value of Gratuitous Services in Action for Injury. — -Although the attendants on one suffering from an injury render their services gratuitously, he may, in an action for damages, prove the value of such services.</p> <p>Practice. — Impeachment of Witness. — Corroboration.—It is for the jury to determine whether the evidence in corroboration of a witness should outweigh the impeaching evidence.</p> <p>Supreme Court.— Pleading. — Consideration of Ruling on Demurrer. — Evidence. — Where a demurrer is filed to a complaint and overruled, the ruling must be considered upon its own merits, without regard to the evidence.</p>

<p>Supreme Court. — Condusiueness of Judgment. — The judgment o£ the Supreme Court on appeal, as'to all questions necessarily involved in the conclusion reached, rules the case throughout all its subsequent stages, and upon such questions it is conclusive upon the parties and those in privity with them.</p> <p>Same. — New Parties. — The fact that a new party comes into the case, over the objection of the other party, does not change the rule, as he will be considered to have elected to abide by the result of the case as if he had been in from the beginning.</p> <p>Decedents’ Estates. — Discretion of Tidal Court as to Evidence Concerning.— The discretion with which the trial court is invested as regards testimony concerning matters affecting a decedent’s estate, which occurred prior to the death of the decedent, must be determined upon the merits of each case.</p> <p>Same. — Interested Witness. — It is not an abuse of discretion to exclude a party from testifying as to oral declarations of the decedent, by which the witness expects to acquire property belonging to the decedent.</p> <p>Evidence. — Proof of Execution of Written Instrument. — It is not necessary that the execution of a written instrument should be proved by direct evidence; it is sufficient if its execution is fairly inferable from the facts and circumstances established by the evidence.</p>

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

<p>Exemption prom Execution. — Statutes Giving, Must be Liberally Construed. —Statutes providing for the exemption of a reasonable amount of property from seizure or sale for the payment of contract debts must be liberally construed.</p> <p>Same. — -Judgments.—Set-Off.—The holder of a judgment can not set it off , against a judgment held by the judgment debtor against him, where the property of the latter, including his judgment, is of a value less than six hundred dollars, all of which he claims as exempt. .</p>

<p>Criminal Law. — Indictment for Larceny of Money. — Description of Money.— Constitutional Law. — An indictment charging the defendant with having stolen “ five hundred and twenty dollars of the paper currency, money and bank notes, current in the United States,” is, under section 1750, E. S. 1881, sufficient as to the description of the money. The said section is not in conflict with the provision of the Constitution which provides that “ the accused shall have a right to demand the nature and cause of the accusation against him.”</p> <p>Same. — Evidence— One from whom money has been stolen is only required to give the best description of it attainable, and to show an excuse for not doing more.</p>

<p>Bailroad.— Negligence.— Broken Bail.— Presumption.— Burden of Proof. — ■ Where a car, by the breaking of a rail, is thrown from the track, resulting in injury to a passenger, a presumption of negligence arises against the railroad company, which it must rebut by clear and explicit proof that the accident could not have been avoided by the utmost skill and care, and as to showing the facts essential to negative such presumption the burden is on the company.</p> <p>Same. — Breaking of Successive Rails at Same Place. — Instruction to Jury. — In an action against a railroad company to recover damages for an injury caused by an accident resulting from a broken rail, an instruction- to the jury, that ff they find from the evidence that such rail had been put down in place of another which had broken the same morning at the same place, they might consider this fact in determining whether the rail which caused the accident was a good one, and whether it was properly and carefully put down, is proper.</p> <p>Same. — Instruction as to Measure of Damages. — Province of Jury. — In an action for personal injury, an instruction to the jury that in estimating damages they may consider past and future suffering, the value of time lost, or likely to be lost, whether the injury is likely to be permanent or not, and its probable effect upon the future health of the party, and upon all the facts ascertain the extent of the injury and award such damages as in their judgment “ will compensate, so far as money can,” for such injury, is not erroneous as invading the province of the jury.</p> <p>Evidence. — Personal Injury. — Expressions of Pain. — .Where it becomes important to illustrate the physical or mentaljcondition of a person, either at the time an injury is’ received, or from thence to the time of an inquiry as to its nature and effect, expressions of present existing pain or malady, an'd of its locality, whether made at the time the injury is received or subsequent to it, are admissible in evidence, regardless of the person to whom they are made.</p> <p>Same. — Statements to Physician after Commencing Action. — Expert.—As the basis of his opinion, a physician may testify to statements made by a patient in relation to his symptoms and condition, both past and present, when received during and necessary to an examination with a view to treatment, or when necessary to enable him to give his opinion as an expert, although such statements are made after the patient has commenced an action to recover damages for the injury.</p> <p>Supreme Court. — Erroneous Instruction, if Harmless, will not Authorize Reversal. — A judgment will not be reversed upon an erroneous instruction, when it affirmatively appears from answers to interrogatories that such instruction did not influence the jury in making their verdict.</p>

<p>Ehojiissoby Note. — Commercial Paper. — Time of Payment.— Provision in Note for Extension. — A note, although payable in a bank in this State ■ twelve months after date, is not negotiable as an inland bill of exchange when it contains a provision that “ the payee or his assigns may extend the time of payment from time to time indefinitely, as he or they may see fit,” as the time of payment is not certain and unconditional; and in an action on such note defences may be made as in actions on other non-negotiable paper.</p> <p>Same. — Plea in Abatement. — Practice.—The defence of an extension of time of payment of a promissory note should be made as a plea ip abatement, and under the statute (section 365, K. S. 1881,) it can not be pleaded with, but must precede, an answer in bar.</p>

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

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

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

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

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

<p>Pleading.— Written Instrument. — Exhibit.—Practice.—Under section 362, E. S. 1881, it is only where the complaint is founded on a written instrument that the filing of a copy as an exhibit makes it a part of the record.</p> <p>Same. — Improper Exhibit will not Aid Complaint. — Where a writing which is not the foundation of the action is filed with the complaint as an exhibit, it can not be looked to to supply an omitted averment, or to otherwise aid the complaint.</p> <p>Exemption eboh Execution. — Refusal to Allow. — Complaint for Damages.— Pleading. — A complaint to recover damages for the alleged unlawful seizure and sale on execution of property claimed as exempt must state all the facts necessary to show that the plaintiff had complied with the requirements of -section 714, E. S. 1881, providing for inventory and affidavit.</p>

<p>Demurrer to Evidence. — Exclusion of Competent Eddenee. — Practice.—By demurring to evidence the defendant does not deprive the plaintiff of the right to make available'questions upon rulings excluding evidence. Township Trustee. — Power to Employ Physician for Poor. — Where the physician employed by the county refuses to treat a poor person who is in urgent need of medical attention, the township trusteejhas authority to employ another physician.</p> <p>Same. — Evidence. — Declarations of trustee as to Payment.— In an action against the county by a physician employed by a township trustee to . treat one in need of immediate attention, the declarations of the trustee concerning payment for services so rendered are admissible in evidence.</p>

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

<p>Decedents’ Estates. — Appeal.—Law of Case. — Practice.—Where an appeal is perfected by an administrator under the law as previously declared by the Supreme Court, and under that law a motion to dismiss the appeal is overruled, that ruling, whether erroneous or not, is the law of the case, and a subsequent motion to dismiss, founded upon a different declaration of the law in another case, will be overruled.</p> <p>•Same. — Statement of Claim. — Although the statute (section 2310, R. S. 1881) requires only “ a succinct and definite statement ” of the claim against a decedent’s estate, such statement must contain sufficient facts to show prima fade that the estate is indebted to the claimant, or it is bad on demurrer.</p> <p>Same. — Claim Shaming Cause of Action in Third Person. — Where the statement shows a cause of action in favor of some person other than the claimant, it is had on demurrer for want of facts.</p> <p>■Same. — Trust.—Pleading.—An allegation in a complaint against a decedent’s estate, that the decedent died without having paid to the plaintiff certain money placed in his hands by a third person for the benefit of the plaintiff, and that it is due and unpaid, is sufficient after verdict to ■show that the decedent at his death, and his administrator upon the filing of the claim, still retained such money.</p> <p>Same. — Demand.—The filing of a claim against a decedent’s estate constitutes a sufficient demand against the administrator. It is not necessary to aver a previous demand.</p> <p>Practice. — Judgment on Bad Pleading. — Where the record affirmatively ^ shows that the judgment rests upon two pleadings, one of which is bad,. it will be reversed for a new trial.</p>

<p>— OompWni.—Transcript of Judgment. — Lien on Beal Estate. — Foreclosure of Lien. — Defence or Disclaimer. — -A complaint, averring that the plaintiffs became the owners of certain real estate through the foreclosure of a mortgage executed in 1874, and the purchase of the same by the plaintiffs’ ancestor on the sale under the decree in 1879; that in 1877 the defendant filed a transcript of a judgment against the mortgagor in the office of the clerk of the circuit court of the proper county, and the same became a junior lienupon the real estate covered by the mortgage, and praying that said judgment lien be foreclosed and forever barred, etc., sufficiently shows that the defendant was asserting such a lien or claim against the land as called for a defence or disclaimer.</p> <p>Judgment. — Filing Transcript in Olerk’s Office. — Justice of the Peace. — Lien. —Notice.—As between parties to a judgment before a justice and others with actual notice, a transcript thereof is a lien on the real estate of the defendant in the-county from the time of its filing in the clerk’s office.</p> <p>Practice.— Defect of Parties.— Demurrer.— Answer. — A complaint which does not show upon its face that there is a defect of parties is not bad on demurrer for that cause, and if such defect exists it should be shown by answer.</p> <p>Bevie.w op Judgment. — Practice Same as on Appeal. — The errors that may be made available in an action to review a judgment are the same that may be .made available on appeal from the judgment.</p> <p>Same. — Objections to Judgment Must be Made in Trial Oow't. — Default.—If no objection be made to a judgment, and no motion made to modify it in the trial court, no objection can be made available upon appeal, nor in an action to-review, however erroneous the judgment may be; and this rule has been applied to cases where judgment was rendered by default.</p>

<p>■City. — Annexation of Territory. — One or more citizens of a territory sought to be annexed to a city may maintain a suit to prevent the consummation of an attempted illegal annexation.</p> <p>Same. — Non-navigable Stream. — Where only a natural, non-navigable stream intervenes between the territory sought to be annexed and the corporate boundary of the city, that would not alone constitute a barrier to the extension of the corporate limits over territory platted into lots.</p> <p>‘Same. — Jurisdiction of Board of Commissioners. — Where territory, not platted, is sought to be annexed to a city to which it lies adjacent, the board of county commissioners has exclusive original jurisdiction over the matter, and the city must by petition secure from that body the proper order.</p> <p>Same. — Remedy.—Injunction.—Where there has been an attempted illegal annexation of territory to a city, and an attempt on the part of the city to interfere with property rights under such color of legal authority,, injunction is the appropriate remedy.</p> <p>Same. — Pleading.—Where the complaint states facts sufficient to show ai right to have a municipal corporation restrained from exercising corporate powers over a territory not legally annexed to the city, the pleading is not bad because it omits to aver that the treasurer had the tax duplicate in his hands.</p> <p>Beal Estate. — Gi’antor and Grantee. — A party who has conveyed land cannot do any act that will impair or invalidate the rights of his grantees.</p> <p>Evidence. — Pleading.—Estoppel.—A party can not give evidence of an affirmative defence of estoppel unless he has pleaded it.</p>

<p>Dbiminal Law. — Murder.—Indictment.—An indictment for murder, which charges that one W. did, on, etc., at, etc., feloniously, etc., kill and murder one F., by then and there feloniously, etc., striking him, the said F., upon his head with a dangerous and deadly weapon, to wit, a large, heavy club, which he, the said W., had and held in his hands, is sufficient, although the words “ then and there ’’ are omitted after the name of the defendant as last set out.</p> <p>Same. — Evidence.—Impeachment of Witness. — A witness in a criminal case can not be impeached by showing that out of court he had expressed an opinion as to the defendant’s guilt, which on cross-examination he denies. Same. — Where a witness for the defendant in a criminal case testifies to matters on cross-examination which are merely collateral to the main inquiry, it is not competent for the prosecuting attorney to contradict or impeach such statements.</p> <p>Same. — Evidence.—Until the State has introduced evidence tending to show that the defendant had left his neighborhood for the purpose of avoiding arrest, it is incompetent for the defendant to introduce testimony showing his intention and purpose when he so left.</p>

<p>Supreme Court. — Supersedeas Brief. — Discussing Questions Arising in Beeord. —Where appellant, in his supersedeas brief, not only points out the error or errors upon which he relies, as required by rule 16 of the Supreme Court, but also discusses the questions arising thereon fully and elaborately, he is entitled to have such questions, if properly saved and presented by the record, considered and decided without filing an additional brief.</p> <p>Bill op Exceptions. — Omission of Evidence. — Supreme Court. — Where a bill of exceptions, purporting to contain all the evidence given in a cause, shows on its face that it does not, the Supreme Court will not consider or decide any question which depends for its decision upon; the-evidence.</p> <p>Instruction to Jury. — Incomplete Instruction — Exception to. — How Saved'.— To make an exception to an Instruction, which states the law correctly as far as it goes, available for the reversal of a judgment, because of what it omits to state, instructions covering the omitted points must be requested and refused by the court.</p> <p>Same. — How Considered. — Instructions must be considered with reference to each other and as an entirety; and a judgment will not be reversed simply because one of the instructions, standing alone, may seem to be imperfect or incomplete.</p>

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

<p>Town. — Taxes.—Time of Levy. — Statute Construed. — Amendment by Implication. — Section 3348, B. S. 1881, in force since August 17th, 1855, requiring the board of trustees of an incorporated town to determine the amount of general tax for the year before the third Tuesday in May, is amended by implication by section 3262, B. S. 1881, in force since March 10th, 1879, and such tax may be determined within a reasonable time after the adjournment of the county board of equalization. See sections 6389 and 6398, B. S. 1881.</p> <p>Same. — The words “ determine the amount of general tax for the current year,” as used in section 3348, B. S. 1881, mean the final determination of the board as to the amount, assessment and levy.</p>

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

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

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

<p>J üdgment. — Default.—Complaint for Relief Against.-^Excuse for Non-Appearance. — Failure to Serve Summons May he Shown Notwithstanding Sheriff’s Return. — In a proceeding under the statute (section 99, 2 R. S. 1876, p. 82; section 896, R. S. 1881) to set aside a default and to be relieved from a judgment, the plaintiff may show, as an excuse for not appearing to the action in which he was defaulted, that the summons was not in fact served upon him, and that he had no notice of the pendency of the action, or of the rendition of the judgment, notwithstanding the fact that the sheriff’s return shows service by reading. Nichols v. Nichols, 96 Ind. 433, limited. Elliott and Howu, JJ., dissent.</p>

<p>ChtiMmAi, Law. — Appeal from Justice of Peace. —Dismissal.—Jurisdiction.— Upon appeal to the circuit court from a judgment of conviction in a criminal case before a justice of the peace, the circuit court acquires complete jurisdiction of the case, and, without its consent, the defendant can not dismiss his appeal.</p>

<p>Evidence. — Motion to Strike Out Testimony. — Practice.—Where a motion to strike out testimony is made, and the adverse party consents that it be . sustained, after which the motion is withdrawn, but the court, upon the request of such adverse party, strikes, out all the testimony objected to by the motion, the party making the motion, can not complain of the action of the court, and the original admission of the testimony is not available error.</p> <p>Same. — Expert Witness. — Hypothetical Question. — A party, seeking an opinion from an expert witness, may assume in his hypothetical question such facts as he deems proved by the evidence, and it is for the jury to determine whether the facts are correctly assumed.</p> <p>Same. — It is only where therq is no evidence at all in support of the facts assumed, or where the question is clearly irrelevant, or where it is merely speculative or improperly framed, that the court can interfere to prevent the propounding of a hypothetical question.</p> <p>Same. — It is not proper in asking hypothetical questions to incorporate in them the opinions of other expert witnesses. The opinion of an expert witness must be based on facts, and not opinions.</p> <p>Same. — Permanency of Injury. — It is competent to prove by expert witnesses the probability that the injury complained of will permanently impair the health and physical and mental ability of the plaintiff.</p> <p>Same. — Where some of the facts assumed in a hypothetical question have been eliminated by a subsequent ruling of the court, but there still remain in evidence facts upon which an opinion may be properly based, it is not error to refuse to strike out the entire opinion, though such elimination may weaken the value of the opinion.</p> <p>Same. — Bailroad.—Negligence.—In an action against a railroad company for personal injuries alleged to have been caused by the negligent conduct of the defendant’s servants, an expert medical witness was asked this question over the objection of the defendant: “State to the jury what fact you observed, what, if any, experiments you made, and what you learned to be the now condition, or the then condition, of the eyes and ear, and how it was done ? ” Held to be competent.</p> <p>Same. — It is always competent to ask a medical witness what observations he made, and what was the condition of the patient he was called upon to examine, without regard to the purpose of the examination.</p> <p>Same.— Cross-Examination of Expert Witness. — In cross-examining a medical expert it is proper for the cross-examining counsel to state hypothetical cases, for the purpose of testing the skill and knowledge of the witness.</p> <p>Same. — Practice.<—General objections to testimony, on the ground that the same is incompetent and immaterial, present no available questions entitled to consideration on appeal.</p> <p>Same. — Motion to Strike Out Testimony. — Separation of Competent from Incompetent Testimony. — Where there is competent testimony given both in the examination in chief and on cross-examination, a motion made by the party by whom the witness was called to strike out all of such testimony should be overruled. It is the duty of such party to select the competent from the incompetent testimony, and to point out in his motion the specific testimony objected to, as well as to indicate the character of his objections.</p> <p>Same. — Objection to Medical Examination, Effect of. — The fact that a plaintiff in an action for personal injuries objected to a medical examination of her person, ordered at the instance of the opposite party, can not affect the merits of the case, and should not be admitted in evidence.</p> <p>Same. — Medical Examination of Party. — Declarations of Present Pain. — Declarations, indicative of present pain, made by a party to medical witnesses at the time of treatment or examination, are admissible.</p> <p>Same. — Declarations of Party During Course of Medical Examination. — Semble, that where medical experts are ordered by the court to examine a party on the motion of his adversary, what is said by such party during the course of such medical examination, in answer to questions asked by the medical experts, is admissible in evidence.</p> <p>Same.— Medical Examination. — Experts. — Cross-Examination.— Practice.— Where medical experts are ordered by the court to examine a plaintiff, in .an action for injuries to the person, and such experts are called and questioned by the defendant as to the result of their-examination, the plaintiff may ask on cross-examination how the examination was conducted, and what questions were propounded to the plaintiff.</p> <p>Same. — Examination in Absence of Adverse Party. — Evidence of an examination of a plaintiff by a medical witness is not rendered incompetent by the fact that the adverse party was not present when it took place; nor, if the examination is properly made, because it was made after the commencement of the action.</p> <p>Same. — Proper Basis'of Opinion by Expert. — A medical expert, who has obtained knowledge of the facts of the case, and has stated the facts to the jury, may take them into consideration in giving his opinion, as well as facts communicated to him in a hypothetical question, and his opinion may rest in part on- statements made by his patient.</p> <p>SAme. — Directions of Physician. — In an action for personal injuries,it is proper for the plaintiff to prove the direptions given her by her physician, and that she had obeyed them.</p> <p>Same. — Proof of Plaintiff’s Condition. — Where the complaint states the character of the injuries received by plaintiff, and alleges permanent injury, it is proper, under these allegations, to give evidence of the mental and physical condition of the plaintiff.</p> <p>Same. — Opinion of Witness as to Age of Party. — Impeachment.—Where, on his examination in chief, a witness gives an opinion as to the age of the plaintiff, and on cross-examination is asked for and gives an opinion as to the age of a bystander, it is competent for the plaintiff to call such bystander and prove his age, for the purpose of showing the incapacity of the witness to correctly judge of a person’s age.</p> <p>Instruction to Jury. — Inferences of Fact. — It is not proper for the court to instruct the jury what inferences of fact they shall draw from the evidence, nor to instruct in detail upon the effect of facts put in evidence.</p> <p>Negligence. — Action for Personal Injury. — Degree of Care Required of Plaintiff in Securing Medical Aid. — Damages.—One who is injured by the negligence of another is bound to use ordinary care and diligence in securing medical or surgical aid, and in case of a failure so to do, this should be taken into account in estimating damages, and no damages should be allowed for ailments or diseases that have resulted from the failure to^, use such care and diligence.</p> <p>Same. — Instruction.—Damages.-—In an action by one who is injured by the negligence of another, an instruction that “ It was the duty of the plaintiff to use ordinary care to cure and restore herself, and if you find from the evidence that the plaintiff failed to use such ordinary care in the premises, but that she unnecessarily exposed herself in inclement weather, or otherwise, after receiving her injuries, if any she received in such accident, and thereby increased and aggravated such injuries, and enhanced their evil -effects, you will take these facts into account in arriving at your verdict — if you find for the plaintiff — and should' not allow ■any damages to plaintiff for any ailments, injuries or diseases, or their aggravation, from which plaintiff has been or may be suffering by reason of such exposure, and from which she would not otherwise be suffering,” correctly states the law.</p> <p>Same. — Predisposition to Disease. — Instruction.—In an action for personal injuries, alleged to have been received by the negligence of others, an instruction, in effect, that, “If you find that the plaintiff received the injuries complained of, or any of them, in the manner alleged, and at that time she was predisposed to malarial, scrofulous or rheumatic tendencies, but otherwise in good health, and that said injuries, or any of them solely, excited or developed said predisposition to malarial, scrofulous or rheumatic tendencies, so that thereby, without the fault of plaintiff, her present condition, whatever you may find that to be, has directly resulted, then I instruct you that the plaintiff is entitled to recover to the full extent of whatever you may find her present condition to be,” correctly states the law.</p> <p>Same. — Measure of Damages. — In such action, the jury, in estimating the amount of damages to which plaintiff is entitled, may take into consideration expenses actually incurred, loss of time occasioned by the immediate effect of the injuries, and physical and mental suffering caused by and arising out of such injuries. They may also consider the professional occupation of the plaintiff, and her ability to earn money. The plaintiff will be entitled to recover for any permanent reduction of her power to earn money by reason of such injuries, and the amount assessed should be such a sum as will in the judgment of the jury fully compensate the plaintiff for such injuries, or any of them so sustained.</p>

<p>Married Woman. — Mortgage.—Estoppel.—A married woman, who is not bound by a debt nor by the covenants of a mortgage given to secure its payment, is not estopped from claiming title to land conveyed to her in exchange for the mortgaged property, by a bona fide purchaser of the latter before the recording of the mortgage.</p> <p>Practice. — Pleading.—Where the complaint is bad, the overruling of a demurrer to an insufficient answer is not available error.</p>

<p>Decedents’ Estates. — Final Settlement. — Collateral Attach. — The approval by the proper court of the final settlement account of an administrator is an adjudication of all questions involved, and can not be collaterally attacked.</p> <p>Same. — Action Against Administrator after Discharge. — Omission of Property from Inventory. — Conversion.—Trusts.—While the final settlement'of a decedent’s estate remains in force, it is conclusive upon the parties interested, and an action can not be maintained against the discharged administrator to recover the proceeds of notes, belonging to the estate, which he failed to include in the inventory and account for but converted to his own use. Nor can the fact that such notes were held by the administrator, before his appointment as such, as trustee for the decedent while living change the case.</p>

<p>Cbiminal Law. — Forgery.—A forged instrument reading, “Mr. Allen — - Please let A. Garmire have team to go to Mongo, and charge same to me.” (signed) “ T. Hudson,” is within the statute defining the crime of forgery. Stale v. Cook, 52 Ind. 574, doubted.</p> <p>Same. — It is sufficient in such cases if the instrument^ bears such a resemblance to the document it is intended to represent as is calculated to deceive.</p> <p>Same. — Indictment.—Mistake in Designating Character of Instrument. — Where an instrument is set forth, a mistake of the pleader in designating its-character does not vitiate the indictment.</p> <p>Same. — Statement of Intent. — An allegation in the indictment, that the instrument was forged and uttered with the “ felonious intent to feloniously cheat and defraud,” etc., is a sufficient statement of the criminal intent.</p> <p>Same. — Erroneous Date of Instrument. — Statute of Limitations. — One who has forged a written instrument can not avail himself of the fact that a wrong date was prefixed thereto, but the true date, showing that the statute of limitations has not run, may be alleged in the indictment.</p> <p>Same.— Witnesses. — Expert.-—Statute.—Section 1801, R. S. 1881, refers to expert witnesses, and does not apply to a case where the witnesses testify as to facts within their own knowledge.</p>

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

<p>Pleading. — Complaint Good as to Part of Belief Ashed. — Demurrer.—A complaint which is sufficient as to part of the relief asked will repel a demurrer although insufficient as to other relief.</p> <p>Taxes. — Deed.— Void Sale. — State’s Lien. — The holder of the auditor’s tax deed is entitled to enforce the State’s lien, even if the sale is void, except where it is invalid for the causes enumerated in section 6495, B. S. 1881.</p> <p>Same. — Enforcement of Lien. — Contract.—Agency.—Mere representations by the vendee of a tax claim to the vendor, that he purchases it in the interest of the owner of the land, and thereby secures it at a reduction on the sum due, will not, in the absence of an agency or an agreement that the owner is to have the benefit of the reduction, prevent him from enforcing the lien for the full amount due.</p> <p>Same. — Interest.—Act March 5,1883. — Under sections 3 and 4 of the act of March 5th, 1883, the purchaser at a tax sale, whether made before or after the taking effect of such act, is only entitled to interest at the rate of twenty per cent.</p>

<p>Criminal Law. — Continuance.—Temporary Postponement. — The several statutory provisions concerning the continuance of causes have reference as well to the temporary postponement of the trial as to a continuance for the term, and when a cause is postponed until a later day in the term, it is in legal contemplation continued.</p> <p>Same. — Matter of Right. — Supreme Court. — Practice.—Neither a continuance for the term nor a postponement can be demanded as a matter of right, except upon cause shown; and in a criminal case where, immediately following the return of an indictment, the defendant, being in court, moves for a postponement till the following day, which motion is not supported by affidavit or other affirmative showing, the refusal of the trial court to sustain such motion will not be reviewed by the Supreme Court.</p>

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

<p>Highway. — Appeal from, County Commissioners. — Dismissal.—An appeal tc the circuit court will not lie from an order of the county commissioners appointing viewers to report upon the public utility of a proposed highway, and when taken it should be dismissed summarily.'</p> <p>Same. — Jurisdiction.— A proceeding for the location of a highway remains under the jurisdiction of the county commissioners until by some order or decision it is substantially ended.</p> <p>Practice. — Dismissal of Appeal. — Bill of Exceptions. — It is only where a motion to dismiss an appeal rests upon matters not apparent on the face of the record itself that a bill of exceptions is necessary to present it.</p>

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

<p>Beal Estate. — Deed.—Trust and Trustee. — Special Finding. — Presumption.—A special finding, that the land in controversy was conveyed to the ■ cashier of a bank personally, by an absolute deed of general warranty; that in the transaction a promissory note held by the bank against the grantor was paid off and surrendered; that such conveyance was fully known to the other officers of the bank at the time; that neither the-bank, during its existence, nor its officers or stockholders, asserted any claim to, or interest in, such land for more than twenty-five years, nor until after the commencement of this suit; that though such grantee' ceased to be cashier of the bank shortly after such conveyance, “ there was no such account as a real estate account in the books of the bank,” and that the plaintiffs, who were the heirs of the grantee, knew nothing of such conveyance until 1881, fails to show that the grantee took or held the land in trust for the bank, and, in the absence of any fact to the contrary, the presumption is that he paid for the land with his own personal means.</p> <p>Special Finding. — Must Show Interest of Party to Action. — Where a special finding fails to show that a party, either personally or in a representative capacity, has any interest in the subject of the action, such party can not complain of alleged errors in the conclusions of law.</p>

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

<p>Railroad. — Common Carrier. — Refusal to Receive and Carry Cattle. — Delivery for Transportation. — Where cattle intended for shipment are placed in a railroad company’s stock-pens at a station on its road, the refusal of such company afterwards to receive and carry such cattle, excuses any further delivery, or offer to deliver, for transportation, on the part of the shipper.</p> <p>Same. — Defective Stoch-Pens and Loading Facilities. — Delay of Train Beyond Regular Time to Receive Freight. — Evidence.—Pleading.—Evidence showing no wrong on the part of the railroad company except a failure to construct and keep in repair a proper fence around its stock-pens, and a failure to keep the chute in proper repair, whereby cattle intended for shipment escape from such pens, and their loading on the car was delayed until the train which was to carry them had left the station, will not support a recovery based on a complaint asking damages for a refusal to receive and carry such cattle; nor can a refusal to receive and carry be predicated upon the fact that the train was not held beyond its regular time until the cattle could be loaded.</p> <p>Same. — The ways and means for loading being in proper condition, and the duty of loading being upon the shipper, it is his duty to have the car loaded so that the train which is to move it may not be unreasonably delayed.</p>

<p>Practice. — Pleading.—Harmless Error. — Where it affirmatively appears on the face of the record that the judgment rests on a good paragraph of a pleading, an error in overruling a demurrer to a bad paragraph is harmless.</p>

<p>Taxes. — Lien for City Tax Paid by Purchaser. — Where one who has purchased real estate at a tax sale for non-payment of State and county ' taxes, afterwards pays the city tax on such property, he may,- in a suit to quiet title, have the same allowed and decreed a lien on the real estate as part of the original claim for the purchase-price.</p>

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

<p>Slander. — Open and Close. — Argumentative Denial Pro Tanto. — The plaintiff in an action for slander, in which only an argumentative denial pro tanto of the complaint has been filed, is entitled to open and close the case to the jury.</p> <p>Practice. — Jury may Take Pleadings to Jury-Boom. — It is not error to permit the jury to take with them to the jury-room the pleadings in the cause.</p> <p>Same. — Bill of Exceptions. — Filing.—A bill of exceptions, in order that it can be considered part of the record, must have been filed as required by section 629, R. S. 1881.</p>

<p>Drainage. — Notice.—Collateral Attack. — Where, in a drainage proceeding under the act of April 8th, 1881, there has been a notice of the general character required by the statute, yet defective, the order of the court based on such notice is conclusive as against a collateral attack.</p> <p>Same. — Pleading.—Jurisdiction.—Case Criticised. — In a proceeding to enforce a drainage assessment, it is not necessary to aver in the complaint that the defendant or his grantor was a party to the original proceeding, as by the assumption of jurisdiction in that proceeding and judgment by the court there was an adjudication of all jurisdictional questions. Shaw v. State, etc., 97 Ind. 23, criticised.</p>

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

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

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

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

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

<p>Pbincipad and Agent. — Purchase by Confidential Agent of Principal’s Properly. — Where one, while occupying the relation of general confidential business agent of another, is requested by the latter to find a purchaser at a fixed price for certain land, but being unable to do so proposes to buy the property himself at that price, at the same time communicating to his principal all the facts within his knowledge about the land and its value, misrepresenting or concealing nothing, and a sale is accordingly made to him, the price paid being at the time a fair one, such sale is valid.</p> <p>Same. — Burden on Agent to Show that Sale was Fair. — When the sale is seasonably attacked, the burden is on the agent to show that the bargain was fair and equitable, that he gave all the advice in his knowledge pertaining to the matter, and that there was no suppression or concealment which might have influenced the conduct of the principal.</p> <p>Same. — Agreement to Lay Out into Lots. — Payment from Proceeds. — A writing, executed by the agent as evidence of his obligation for the purchase-price, stipulating that he is to lay the land out into town lots, but specifying no time, and to pay the agreed price, with a certain rate of interest, out of the proceeds of the sales of said lots, in money or promissory notes taken, is not so contingent or unfair as to invalidate the sale.</p> <p>Same. — Subsequent Transactions. — The sale of the land can not be affected by independent dealings which were had afterwards, and which had no-relation to the principal transaction.</p> <p>Same. — Insurance of Principal’s Property in Company Represented by Agent.— Where the general business agent of another is also the agent of an insurance company, and in the latter capacity writes insurance upon the property of his principal, but with such knowledge on the part of the company as would make the policies valid, or at most merely voidable, he is entitled to be reimbursed for the premiums paid by him.</p> <p>Same. — Forfeiture of Compensation for Services. — Mere errors of judgment on the part of an agent while managing his principal’s business, or omissions which do not amount to misconduct or culpable negligence, do not work a forfeiture of the agent’s right to compensation for services.</p> <p>Same. — Interest.—Where, in order to meet the calls, in uncertain amounts, of his principal upon him, it is necessary that an agent — who, as it is received, mixes his principal’s money with his own and uses it in his business — shall keep money available, he is not chargeable with the highest obtainable rate of interest on the sums remaining in his hands, but legal interest only.</p> <p>Same. — Agent’s Liability for Loss. — An agent who, by neglect and want of diligence, fails to collect money of his principal loaned by him, is liable for the loss.</p> <p>Same. — Judgment Without Relief. — Trust Funds. — Under section 577, R. S. 1881, a judgment without relief against an agent, in favor of his principal, for money for which he is liable as a trust fund, is proper.</p>

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

<p>Draiea&e.— When Oivil Procedure and Practice Applicable. — The modes of procedure and the rules of practice prescribed by the civil code may be used to supplv omissions in the drainage statutes.</p> <p>Same. — Dismissal by Petitioner. — Under section 333, R. S. 1881, the petitioner for a drain may dismiss his case and withdraw his petition if hi® motion be made at the proper time.</p> <p>Same.— When Petitioner can not Dismiss. — It is too late for the petitioner to obtain leave to dismiss, after the filing of the commissioners’ report and the lapse of the statutory period for remonstrating, the cause being-then ready for final judgment. Section 3, act of March 8th, 1883 (Acts 1883, p. 173).</p>

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

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

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

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

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