Volume 105 — Indiana Reports

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

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

<p>Will. — Construction.—Life-Estate.—Devise of Fee to Trustee. — Where all the fee of a wife’s estate is devised by her to a trustee with the power of management and disposition, and a life-estate in part of it is carved out for her husband, with the remainder in fee vested in the trustee, the husband takes no greater estate under the will than that carved out for him. Such a devise to the husband shows an intention on the part of the testatrix to make the testamentary provision take the place of the provision made by law.</p> <p>íSame. — Agreement between Husband and Wife. — Election by Husband. — Relinquishment. — Family Settlement. — Where a husband, to secure a life-estate in the homestead owned by his wife, verbally promises to relinquish his claim to all other interest in her property, and she, in consideration of that promise, undertakes to vest such life-estate in him, the agreement is valid and may be carried into effect by will, and a family settlement after her death.</p> <p>iSame. — Contract.—Equitable Consideration. — Debtor and Creditor. — In such case, an equitable consideration is sufficient to uphold the contract of the husband, and he may perform it, notwithstanding the objections of his creditors.</p> <p>'Same. — Parol Partition. — A parol partition of lands, where possession is taken or retained under the agreement of partition, is valid, and the principle that governs such partitions applies to family settlements.</p> <p>Judgment. — Interest Affected by Lien. — The interest which the lien of a judgment affects is merely the actual interest the debtor has in property.</p> <p>Statute op Fbauds. — Defence Personal. — The defence of the statute of frauds is a personal one, and a creditor can not make it for a debtor "who insists upon performing his oral agreement.</p>

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

<p>Dbainage. — Act of April 8th, 1881. — Construction of. — Notice.—Easement.— The provision of the drainage act of April 8th, 1881, which requires notice of the petition to he posted in three public places, etc., provides a means of giving notice to all persons or corporations owning lands described in the petition, and such notice applies as well to those who own easements in land as to those who own any other interest or estate therein.</p> <p>Same. — Notice.—Collateral Attach. — In an action to foreclose a lien on the defendant’s right of way for an assessment of benefits growing out of the establishment of a ditch, it will be presumed, as against a collateral attack, that the defendant’s interest in such right of way was properly described in the petition, and that proper notice was given.</p> <p>Same. — Pleading.—Defence to Action to Foreclose Lien. — In an action to foreclose such lien, an answer that the ditch, as it is being constructed, does not conform to the plans and specifications filed, or to the ditch as described in the report of the commissioners or order of the court; that the commissioner does not intend to build such a ditch as that described and ordered, and that he has departed widely from the specifications in various particulars; that he can not and does not intend to finish the ditch; that he has abandoned the construction of about five hundred feet of the work at one end of the ditch as proposed and laid out, and that by reason thereof the water will be poured into another ditch of inadequate capacity, and will be backed on and over the defendant’s road, to its damage in a much larger sum than the amount of its assessment, is bad on demurrer.</p> <p>Same. — Twrnpihe Company. — Sale of Property. — Where a specific statutory lien is acquired upon the whole, or any part of the easement of a turnpike company in its roadway, such lien may be enforced by a decree of foreclosure and sale.</p> <p>Corporation:. — Sale of Property on Judicial Process. — As a general proposition, it is true that the property of a public corporation, essential to its corporate existence and the execution of its corporate duty, can not foe sold on execution or otherwise except as provided by statute, but as respects gravel road companies, statutory authority to that end is conáerred.</p>

<p>Decedents’ Estates. — Administraterr.—Failure to Inventory and Account for Assets. — Final Settlement. — Conclusiveness of. — The assignee of the children of a decedent can not maintain an action against the latter’s administrator, who has made a final settlement and been discharged, and while such settlement remains in force, on the ground that, as administrator, he failed to turn over to himself, as guardian of such children, their portion of assets of the estate which he failed, as administrator, to inventory and account for, because such final settlement of the decedent’s estate was an adjudication that he had properly accounted for all of such assets.</p>

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

<p>Railboad. — Statutory Action. — Contributory Negligence. — Contributory negligence is not a defence to an action based upon the statute imposing upon railroad companies the duty of fencing their tracks.</p> <p>Same. — Cattle-Guards.—-The failure to construct cattle-guards, where it is the duty of the railroad company to construct them, is regarded as a failure to fence.</p> <p>Same. — Abandonment of Animal by Owner. — -An owner who abandons his animal can not recover, although it enters upon the track of a railroad, and is killed, at a place where the company has failed to perform its statutory duty by fencing its track.</p> <p>Same. — Where the borrower of a horse, while intoxicated, rides the animal along a highway to a railroad crossing, and, there being no fence or cattle-guard as required by statute, the horse turns and proceeds upon the track until killed by an approaching train, the railroad company is not liable to the owner in an action based upon the statute requiring such companies to keep their tracks securely fenced.</p> <p>Dbtjnkekness. — Not Available to Avert Consequence of Act. — Voluntary drunkenness is not available to avert the usual and natural consequence flowing from a man’s act, and a drunken man will be held to the same measure of responsibility as a sober one, and his actions judged by the ■same standard, except in case of contracts.</p>

<p>Special Verdict. — Province of Jury. — Practice.—In framing and returning a special verdict, the whole duty of the jury is discharged when they have found and set forth, in an orderly and intelligible manner, all the principal facts which were proven within the issues submitted to them-</p> <p>Same. — Issue Involving Negligence. — When, upon an issue involving negligence, the principal or ultimate facts are determined by the jury, it then becomes the function of the court to decide, as a question of law, upon the facts found, whether or not the party to whom negligence is imputed was negligent.</p> <p>Same. — In an action for damages, growing out of the alleged negligent ' conduct of the defendant, a paragraph of the special verdict -which recites “ that the conduct of the plaintiff on the occasion of the injury was ordinarily prudent and cautious under the circumstances, and that he did not wholly contribute to said injury by any fault or negligence on his part, but that said injury was caused mostly by the agent of the defendant, driver of said car,” contains nothing more than inferences or conclusions, and will'not be regarded as a finding of facts.</p> <p>Negligence.— When a Question of Laihi. — Where the facts are undisputed, or where the jury have agreed upon and returned a special verdict setting forth the principal, contested facts, it is the province of the court to settle the question of negligence as a question of law.</p> <p>Same. — Contributory Negligence. — Getting on and off Street Car when in Motion. —The rules applicable to persons getting on and off cars operated by-steam are not to be applied in full force to street railways operated by horse-power. A person having the free use of his faculties and limbs, and having given proper notice of his desire to be taken up, the car having slackened its speed in the usual manner, it is not negligence for him to attempt to get on while it is moving slowly.</p> <p>Same. — In an action against a street railway company for personal injuries, alleged to have been occasioned by the negligent conduct of defendant’s driver, the facts were that the plaintiff was standing on a crossing, where passengers were usually taken, and signalled an approaching street car, the team attached to which was being driven in a trot; that on receiving the signal the driver slackened the speed of the team, so that when the car reached the plaintiff it was moving slowly; that as the plaintiff was in the act of stepping upon the car the driver struck the team, causing it to start rapidly, thereby suddenly jerking the car, so that the plaintiff was thrown violently to the ground and injured.</p> <p>Held, that the defendant is liable.</p>

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

<p>Judgment. — Former Adjudication. — Defo.ull.—Married Woman. — Mortgage of Land Derived from First Husband. — Action for Possession. — While married a second time a woman executed a mortgage on land derived from, her first husband. After her death a suit to foreclose the mortgage was brought and the children by the first marriage were made parties defendants to answer as to their interest. They were defaulted, and a decree of foreclosure was entered and the land was sold. Action by them-to recover possession of the land.</p> <p>Held, that the action is barred by the decree in the foreclosure suit.</p>

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

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

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

<p>Verdict. — Special and General. — Judgment.-—Practice.—Where, under the statute, a party demands a special verdict, he is entitled to a special finding of all the facts proved in the case, and to the judgment of the court upon those facts.</p> <p>Same.— When General Verdict Must he Disregarded. — If, upon a demand being made for a special verdict, both a special and a general verdict are returned by the jury, the general verdict must be disregarded.</p> <p>Conversion. — Question of Law and Fact. — Special Verdict. — Practice.—The question of a wrongful conversion of property is generally a mixed question of law and fact, and when a special verdict is to be returned the jury find the facts and the court applies the law.</p> <p>Same. — Failure of Jury to Find Material Facts.— Venire de Novo. — Railroad.— Where the jury, in a special verdict, find that the defendant, a railroad company, “ took and converted the property in controversy to its own use,” but do not set out the facts upon which such conclusion is based, the court should send them to their room to perfect their verdict, or if this be not done, a venire de novo should be granted.</p> <p>Same. — Sufficiency of Complaint Alleging Conversion. — A complaint against a. railroad company, alleging that the defendant unlawfully and wrongfully took, converted and appropriated the property in controversy to its own use by hauling it away and using it in its road, sufficiently charges a conversion.</p> <p>Same. — Location of Property. — Motion to Make Specific. — Practice.—Where, by reason of the loss of his memorandum, the plaintiff alleges that he is unable to locate the property any more definitely than that it was along the line of the defendant’s road in certain counties, it is not a reversible error to overrule a motion to make the complaint more specific.</p>

<p>Savings Bank. — Action to Wind up Affairs of Must be Brought by State Auditor. — Under section 2757, B. S. 1881, the auditor of state is the only, person authorized to maintain an action against the officers and trustees of savings banks for a violation of their statutory duties.</p> <p>Same. — Creditors Must Booh to Auditor’s Proceeding. — Where the auditor of state has brought an action to wind up the affairs of a savings bank,, all persons whose rights are involved must look to that officer and that proceeding for their enforcement. They can not maintain an independent action for that purpose.</p>

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

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

<p>Appeal. — Failure of Justice to Record Facts. — Dismissal.—If an appeal has been in fact taken from a justice of the peace, his failure to note that fact in the docket is not a sufficient cause for dismissing the appeal.</p> <p>Same. — Presumption as to Regularity of Appeal. — Supreme Court. — Where the transcript filed in the circuit court does not affirmatively show that an appeal was taken from the justice, in the absence of anything to the contrary, it will be presumed in the Supreme Court that the appeal to the circuit court was regularly taken.</p> <p>Bastardy. — Examination of Relatrix.— Waive!' by Defendant. — Where, at the ■hearing of a bastardy proceeding before a justice of the peace, the re.Iatrix is not present and is not examined, hut the defendant does not •object to the hearing on that account and makes no effort to procure her attendance, he will be deemed to have waived her examination at that hearing.</p> <p>Instructions to Jury. — Admissions.—Province of Jury. — The trial court should not declare as matter of law what ought to he left to the jury as a matter of fact, and it is error to embody in an instruction a statement of law, taken from a text-book on evidence, setting forth the circumstances under which the admissions of parties would be entitled either to great or little weight.</p> <p>Same. — Credibility of Witnesses. — Interest in Suit. — An instruction that the jury should consider the interest of parties and other witnesses and the relationship of witnesses to the parties, in weighing their testimony, is erroneous as invading the province of the jury, and as indicating to ■them as matter of law that the testimony of such witnesses is entitled to less weight than that of others.</p>

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

<p>Contract. — Delay in Performance. — Damages—'Where a contractor in good faith enters upon the performance of a contract, and incurs expense, the employer having notice of that fact, if such employer, either by an order or by negligently failing to perform an essential part to be performed by him, suspends the execution of the contract, upon a resumption and completion of the work under the contract, it will be implied that all loss necessarily occasioned by such suspension, of which the employer is at the time notified, shall fall upon him.</p> <p>Same. — -Preach of. — -Measure of Damages. — Where, on account of a failure by the employer to perform preliminary work, which, under the contract, he is required to perform, before the contractor can proceed with the work he is to perform under the contract, the latter is unable to proceed, and the work is suspended, to the injury of the contractor, without his consent, of which the employer has notice, such contractor, although he may have afterwards completed the work under the contract, may, in addition to the contract price, recover all his actual damage occasioned by such delay, including injury to tools, and interest at six per cent, for the period of the delay on all moneys invested in materials which he was bound to and did furnish, and in the labor necessary in furnishing the same.</p> <p>Same. — Instruction.—In an action to recover the contract price for work performed under a special contract, and damages for a breach of the provisions of the contract by the employer, whereby the work was delayed, etc., where it appears that on account of the failure of the employer to do certain preliminary work necessary to be done by him, before the contractor could begin to perform his part of the contract, the latter was not able to so commence his work until after the time fixed in the contract for the completion of the work, an instruction, asked by the defendant, to the effect that if at such time the employer had not performed such preliminary work, and the contractor was not ready with materials to commence the performance of his part of the contract, the latter was under no obligation to hold himself in readiness to do the Work, and that unless the jury believed that a new agreement was afterwards made the plaintiff could not recover, was correctly refused.</p> <p>Pleading.— Uncertainly of Complaint. — Evidence.— Variance. — Where the allegations of a complaint are too general and uncertain, and the defendant has made no motion to have them made more specific, he can not complain of a variance, if such allegations are made more certain by proof on the trial.</p> <p>Same.— Vanance. — It is only where the evidence shows a state of facts different from that averred in the complaint that a fatal variance may be claimed.</p>

<p>Complaint. — Railroad.—Negligence.—Motion to Make More Certain. — Where the complaint in an action against a railroad company for personal injury to plaintiff while in its employ, resulting from the alleged negligence of the defendant and its employees, charges that the plaintiff was ordered to perform certain hazardous work with which he was unacquainted, by “his superior in rank in the service” of such defendant, whereby, etc., the same is not sufficiently specific, and a motion to require the plaintiff to make his complaint more certain, so as to show the position in the defendant’s service, and the relation to both defendant and plaintiff, occupied by the persons alleged to have given such orders to him, should be sustained.</p> <p>Special Verdict. — A special verdict should be limited to the case as-made by the pleadings, should find all the facts proven under the issues, and should not embody or state conclusions of law.</p> <p>Same. — ConclusionsofLaw, etc.— Venire De Novo. — If a special verdict include findings of evidence, conclusions of law and matters outside the issues, such findings will be disregarded; still, if such verdict, stripped of such-superfluities, is yet sufficient to lead up to and support a judgment either way under the issues, a motion for a venire de novo will be overruled.</p> <p>Master and Servant. — Contract of Hin-ing. — Implied Undertaking of Master. —Co-employee.— Vice-Principal. — As a general rule, in the contract of hiring, there is an implied undertaking upon the part of the master that he will use all reasonable care to furnish safe premises, machinery and appliances for conducting the business safely, and that he will use all' reasonable care to furnish competent and prudent co-employees; and when the master has kept and performed this implied undertaking, the servant can not recover from him for injuries resulting from the business, or the negligence of such co-employees, however dangerous the business; and this rule obtains, regardless of the fact that one employee-may be the superior in rank to others in the same general employment, unless he occupies the position of vice-principal.</p> <p>Same. — Implied Undertaking on Part of Servant. — In such contract of hiring, there is an implied undertaking on the part of the servant that he will exercise reasonable care to avoid injury, and that he assumes all ordinary risks, incident to the business, and all risks from the negligence of co-employees.</p> <p>Same. — Minors.—These general rules apply to minors.</p> <p>Same. — Master's Inability where Servant is Ordered to do Hazardous Work Outside of Contract. — The servant’s implied assumption of risks, which accompanies and is a part of the contract of hiring, is confined to the particular work and class of work for which he is employed, and if the master orders him to work temporarily in another department of the general business, where the work is of such a different nature and character that it can not be said to be within the scope of the employment, and where he is associated with a different class of employees, he will not, by obeying such orders, necessarily thereby assume the risks incident to the work and the risk of negligence on the part of such employees.</p> <p>Same. — If, however, the servant, voluntarily and without directions from, the master, goes into hazardous work outside of his contract of hiring, he puts himself beyond the protection of the master’s implied undertaking.</p> <p>Same. — Defective Machinery, etc. — Knowledge.—Diligence. — If the servant claim damages from the master for injuries received on account of defective premises, buildings, machinery or appliances, he must allege and prove that the defect or the unfitness, which caused the injury, was known to the master, or was such as with reasonable diligence and attention to his business he ought to have known.</p> <p>Same. — Latent Defects and Dangers. — In all cases the master is bound to disclose to the servant latent defects and dangers, of which he has knowledge, or of which he ought to have knowledge by the exercise of reasonable attention, care and diligence, and of which the servant has no knowledge, and would not discover by the exercise of reasonable care.</p> <p>Same. — Implied Representations of Servant. — Railroad.—When a person of. apparently sufficient age, physical ability and mental caliber to perform the service, seeks an employment at the hands of a railway company, or other master, he will be held to an implied representation that he is competent to perform the duties of the position he seeks, and competent to apprehend and avoid all dangers that may be discovered by the exercise of ordinary care and prudence.</p> <p>Same. — Hazardous Work. — Orders by Co-employee. — If a servant, upon the orders of a co-employee, employed in ’the same work with him, and without authority from the master to order and control the servant’s work and movements, leaves his work which in the original contract he is hired to perform, and engages in hazardous work, he can not make the master respond in damages for the consequences.</p> <p>Same. — Contributory Negligence. — In no case will the master be held as upon a warranty against the negligence of the servant who brings injury upon himself which he might have avoided by the exercise of reasonable care and prudence.</p>

<p>Receiver. — Jurisdiction.—Judge in Vacation. — Under the provisions of section 1222, R. S. 1881, a judge in vacation is clothed with the same power and authority relative to the appointment of receivers, as is the court itself when in regular and open session, and his acts, orders and proceedings in such premises are the judicial proceedings of the court whereof he is judge.</p> <p>Same. — Voluntary Appearance of Defendant. — Where a complaint is filed by one partner, before a judge in vacation, asking the appointment of a receiver, and the defendant, a co-partner, voluntarily appears to such action and files his answer, without process, and submits the same, such judge thereby acquires full and complete jurisdiction both of the subject-matter of the action and the persons of the parties, such voluntary appearance being equivalent to the service of process.</p> <p>Same. — Collateral Attach. — The regularity or legality of the appointment of a receiver by a judge in vacation, who has acquired jurisdiction of the subject-matter of the action and the parties thereto, can not be questioned collaterally in a subsequent action.</p> <p>Same. — Appeal to Supreme Court. — Whenever the court or judge, either in term time or vacation, appoints or refuses to appoint a receiver, the party aggrieved may, under the provisions of section 1231, R. S. 1881, within ten days thereafter, appeal from the decision of such court or judge without awaiting the final determination of the case.</p> <p>Mitchell, J., dissents.</p>

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

<p>Pleading.— Written Instrument. — Filing of Copy. — Where the complaint alleges that a copy of .the written instrument declared on is filed with and made a part thereof, and a copy follows in the transcript immediately after the complaint, this is sufficient to identify and show the filing of such copy.</p> <p>Same. — Application for Life Insurance. — Exhibit.-—In an action upon a life insurance policy, it is not necessary to file a copy of the application with the complaint.</p> <p>Life Insurance. — Policy.—Inconsistent Provisions. — Construction.—Where a policy of insurance contains inconsistent and contradictory provisions, that provision most favorable to the assured will be adopted.</p> <p>Same.— Intemperance.— Forfeiture. — Cancellation.— General and Specific Provisions. — Inconsistent Stipulations. — -A specific stipulation in a separate clause of a policy of life insurance, that if the assured shall become intemperate to a certain degree the company may cancel the policy, and thus absolve itself from liability, will control a general stipulation that such a degree of intemperance shall work an absolute forfeiture.</p> <p>Same. — Suicide.— Unintentional Self-Destruction. — A provision in a policy of life insurance, that, whether sane or insane, if the assured shall die by his own hand, the policy shall be void, has no application to a case where death results by accident, or without intention or expectation, although it be caused by the hand of the assured, e. g., where death is produced by an overdraught of whiskey taken, without any intention of destroying his life, by one who had become physically and mentally weak by causes which he could not control.</p> <p>Same. — Answers to Questions in Application.— Warranty. — Burden of Proof.— In an action on a policy of life insurance, the burden is upon the defendant to prove that answers by the assured to questions contained in the application are untrue.</p> <p>Supreme Court. — Instmctions.—Brief.—Practice.—Where the legal proposition involved in an instruction is not stated in the brief of counsel, and nothing more is done than to indicate to the court the page of the record on which it may be found, with general observations concerning it, the objection to it will not be considered.</p> <p>Same. — New Trial. — Evidence.—Bill of Exceptions. — A motion for a new trial, based on alleged errors arising on the admission and exclusion of evidence, which refers to the evidence as set out in a bill of exceptions not yet filed, presents no question.</p>

<p>Township Trustee. — Lucrative Office. — The office of township trustee is a lucrative office within the meaning of the State Constitution.</p> <p>Office and Officer. — Postmaster.—Federal Officer. — Postmasters are Federal officers under the provisions of the State Constitution.</p> <p>Same. — Eligibility. — Vacation of Office. — Federal and State Officers. — The general rule is that where a man accepts an office held under the State, he vacates another held under the same sovereignty; but where a Federal office is held at the time of the acceptance of an office created by State laws, the former is not vacated by such acceptance. The Federal office may be surrendered and the State office retained, but if the incumbent elects to hold the former, he must surrender the latter.</p>

<p>ReCEIVEB. — Appointment by Judge in Vacation.— Insolvent Corporation. — Under section 1222, R. S. 1881, a judge in vacation may appoint a receiver for a corporation which is in “ imminent danger of insolvency.”</p> <p>Same. — Answer Admitting Complaint. —Adversary Proceeding. — Upon the filing of a complaint against such a corporation, alleging such cause for the appointment of a receiver, an answer admitting the truth of the complaint does not make the suit less adversary in character than it otherwise would be.</p> <p>Same.— Voluntary Appearance of Defendant. — The voluntary appearance of the defendant in such proceeding is equivalent to the service of process* and the suit is commenced and pending at and from the time of such appearance. Sections 315 and 1230, R. S. 1881.</p> <p>Same.— Validity of Proceeding in Vacation.— Collateral Attack. — The court having jurisdiction of the subject-matter of the suit and of the parties, the proceedings and orders of the judge in vacation are the proceedings and orders of the court, and, even if erroneous, are not void, and cam not be collaterally attacked.</p> <p>Mitcheul, J., dissents.</p>

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

<p>Partnebship. — Action against Surviving Parkier. — Decedents’ Estates. — Upon the death of one of two joint debtors, the creditor has a right to collect his claim, at law, from the survivor, or, at his option, proceed under the statute in regard to the settlement of decedents’ estates, against the estate of the deceased.</p> <p>Same. Plea in Abatement. — Jurisdiction.—Promissory Note. — To a suit on a promissory note executed by a partnership in the firm name, against the surviving partner, a plea in abatement is insufficient which alleges that the defendant and one R., as partners, executed the note in suit; that afterward the defendant withdrew from the firm, leaving in R.’s hands ample means to pay all the firm debts, including the note; that afterwards R. died, and the administration of his estate is still pending. that there are ample means belonging to the estate to pay the debts, including the note, which has never been presented to the administrator or filed against the estate, and that the administrator has not been made a party to the suit, wherefore the court has no jurisdiction.</p> <p>Practice. — Pleading.—Non est Factum. — Harmless Error. — It is a harmless error to sustain a demurrer to an unverified answer of non est factum, where the general denial, pleaded with it, remains.</p> <p>Evidence. — Exclusion of. — Practice.—Where no question was asked a witness, nor anything else done in that connection, except to propose to the court to prove certain recited facts, no question is presented in regard to the exclusion of his testimony.</p>

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

<p>Telephone. — State Regulation. — Act Limiting Mental Price of Instruments.— Constitutional Law. — The State has the right to prescribe the maximum, price which a telephone company shall charge for the use of its telephones, and the act of April 13th, 1886, limiting the rental price of such instruments, and also the amount which shall be collected for conversations between cities and villages, is constitutional.</p> <p>Same. — Patent.—Power of Stale to Regulate Property Created Under. — The fact that the telephone and appliances are articles patented under the Constitution and laws of the United States, while vesting in the patentee, his heirs and assigns, the exclusive right, for a limited time, to make, use and vend the tangible property brought into existence by the application of the discovery covered by the letters patent, does not preclude State regulation of the property thus brought into existence.</p> <p>Same. — Property Devoted to Public Use. — In legal contemplation all the instruments and appliances -used by a telephone company in the prosecution of its business are devoted to a public use, and property thus devoted to such use becomes a legitimate subject of legislative regulation.</p> <p>Same. — Guaranteed Mights in Property. — State regulation of property devoted to a public use is not the taking of property for a public purpose within the meaning of section 21, of article 1, of the Constitution of this State, nor is it an interference with the guaranteed rights of the citizen in private property.</p> <p>'Same.— Word “Telephone ” Includes all Instruments for Reception and Transmission of Messages. — The word “ telephone,” as used in the act of April 13th, 1885, was intended to designate, and did in fact refer to an apparatus composed of all the usual and necessary instruments for the transmission and reception of telephonic messages, and not to a single instrument only.</p> <p>Same. — Term of Art. — Evidence.—The word “telephone” having become a term of art, evidence is admissible to explain its proper meaning.</p> <p>Same. — Legislative Intention. — There being nothing in the act of April 13th, 1885, or in other laws, which requires a telephone company to construct a new line against its will, or to maintain an old line longer than it may feel justified in doing, evidence that it could not construct, or continue to use, a particular line at the price limited without loss, can not be considered in determining the legislative intention in passing such act.</p> <p>Same.- — Justice or Expediency of Act. — Remedy.—Where a statute is one which the Legislature had power to enact, the courts can not sit in judgment upon either its justice or expediency, but relief must be sought of the Legislature.</p>

<p>County Auditor.— Performing Work of Predecessor. — Compensation.— Inability of County. — Notice to Board of Commissioners. — If a county auditor is entitled to recover at all against the county for performing work which his predecessor should have done, he must clearly show that the work should have been performed by his predecessor, and that before proceeding with it he notified the board of commissioners to that effect, and that he would look to the county for compensation.</p>

<p>Instructions to Jury. — Harmless Error. — Supreme Court. — Practice.—It is a harmless error, for which a judgment will not be reversed, to refuse to give a correct instruction asked by a party, where the law is properly stated in an instruction given by the court of its own motion.</p> <p>Conversion. — Measure of Damages. — Where one unlawfully enters upon the premises of another and cuts and hauls to his mill logs belonging to the latter, the measure of damages, in an action by the owner to recover the value of the logs, is the value of the lumber in the logs at the mill and at the time they are there converted by the defendant to his own use, without any reduction for labor bestowed upon them.</p>

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

<p>Cbiminai. Law. — Bill of Exceptions. — Instructions.—Practice. — All exceptions in criminal causes, not saved by the entry of the clerk as á part of the proceedings in court, must be embraced in a bill of exceptions. Sections 1845-1849, R. S. 1881. This rule applies to instructions.</p> <p>Same. — Intent to Murder. — Threats.—Evidence.—In a prosecution for assault, and battery with intent to murder, after evidence that the prosecuting witness attacked the defendant has been introduced, proof of previous, threats by the former, although never communicated to the latter, is admissible on the ground that such threats may illustrate the character of the attack.</p> <p>Same. — Newly Discovered Evidence. — New Trial. — In such case, evidence of threats made by the prosecuting witness against the defendant, discovered after the trial, is cause for a new trial.</p>

<p>Instructions to Jury. — Omitted Points. — Practice.—An objection to an instruction to the jury, that it fails to state the difference between the various paragraphs of defendant’s answer, is unavailable. An instruction covering the point should have been asked.</p> <p>Same. — Promissory Note. — Signing and Delivery on Sunday. — Province of Jury. —In an action op a promissory note, alleged by the defendant to have been signed and delivered on Sunday, an instruction “ that, before the defendant can successfully make out that kind of a defence, he should have pleaded in writing, as well as proved by a fair preponderance of the evidence, that he not only executed the note on Sunday, but that it was delivered and accepted by the plaintiff on Sunday,” is correct, and does not invade the province of the jury.</p> <p>Same. — Rule of Construction. — Instructions are to be taken and construed together, and if, when so construed, they contain a correct statement of the law, they will afford no sufficient ground for reversal, even though a single sentence, standing alone and detached from its context, might seem to be erroneous.</p>

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

<p>■Cbimiitai. Law. — Change of Judge. — Application by One Jointly Indicted imth Another. — Presence of Other Party. — Severance.—Where one of two persons jointly indicted for murder separately applies for a change of judge, an order for such change may be made when the other party is not present, the effect of the application and order being to sever the defences.</p> <p>Same. — Separate Trials. — Court may Suggest Propriety of. — -Not only may parties jointly indicted be tried separately upon demand, but the court, when justice requires it, may suggest in express words the propriety of separate trials.</p> <p>Same. — Employment of Counsel to Assisi Prosecuting Attorney.— Discretion of Court. — It is within the discretion of the trial court to direct the employment of counsel to assist the prosecuting attorney in conducting a. trial against a person accused of felony.</p> <p>Same. — Statute.—The defendant in a criminal case, who asks the benefit of the provisions of a statute, must take the benefit just as the statute-gives it.</p> <p>Same. — Murder.—Inspection of Place by Jury. — Absence of Accused. — Evidence* —The court may, without error, upon the request of the defendant in a prosecution for murder, send the jury, unaccompanied by the defendant, to inspect the premises where the homicide was committed, a: such view does not constitute evidence in the case.</p> <p>Same. — Constitutional Law.— Section 1827, R. S. 1881, providing for a view of the place in which any material fact occurred, “with the consent of all the parties,” is constitutional.</p> <p>Sam:e. — Argument of Counsel. — Practice.—Misconduct of counsel in argument, to the jury, to be available for the reversal of the judgment, must be of such a character as to injure the substantial rights of the defendant.</p> <p>Same. — Statements as to Collateral Matters.— Character of Accused. — A statement of the prosecuting attorney in argument, upon a merely collateral matter, which it is apparent does not injure the defendant, and also a statement, without more, that the character of the accused is shown by his own witnesses, will not justify a reversal.</p> <p>Same. — -Impeachment of Witness. — Instruction.—It is not error to instruct the jury that in passing upon the credibility of a witness they may consider “ his impeachment in any case where the witness is found to be successfully impeached.”</p> <p>Same. — Misconduct of Jury. — Affidavits.—Supreme Court — Practice.—Where misconduct of the jury is assigned as cause for a new trial, and affidavits and counter-affidavits are filed and evidence is heard, but on appeal only the affidavits in support of the motion are in the record, the question will not be considered.</p>

<p>Recognizance. — Defects do not Invalidate. — Forfeiture. — Mayor of City.— Criminal Law. — Although a recognizance taken by the mayor of a city, for the appearance before him of one charged with felony, is by mistake-made payable to the city, instead of to the State, and to answer a charge of having violated “ an ordinance of said city,” instead of a statute of the State, it is valid and binding, and upon forfeiture may be enforced by the State. Sections 1221 and 1715, R. S. 1881.</p>

<p>County Commissioners. — Liability for Services of Attorney Appointed by Judge to Defend Criminal. — Although the county commissioners possess no power to contract with an attorney to prosecute or defend a criminal, yet it is within the power of the circuit judge to bind the county to pay for services rendered by an attorney under appointment by such judge, in defence of a prisoner who is found entitled to defend as a poor person.</p> <p>Same. — Failure of Judge to Make Allowance. — The failure of the court, under the order of which an attorney performs services in defence of a prisoner, to make an allowance therefor, does not discharge the county from its obligation to pay.</p> <p>Same. — Appointment of Attorney after Change of Venue. — Where the court to which a criminal case is taken for trial on a change of venue appoints an attorney to defend the prisoner, the county in which the case originated is liable to the same extent as if the appointment had been made and the case tried in that county.</p> <p>Same. — County Liable for Services in Supreme Court. — Under such appointment, the county is liable not only for services in the trial court, but also for the services of the attorney in preparing and prosecuting an appeal to the Supreme Court.</p> <p>Special Judge. — Regularity of Appointment. — Presumption on Appeal.— Where no objection to the sitting of a special judge was made until after verdict, it will be presumed on appeal, in the absence of any facts showing that he was not authorized to sit, that the proceedings were regular.</p>

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

<p>Marion Superior Court. — Parlies not Appealing to General Term can not Appeal to Supreme Court. — Dismissal of Appeal. — Where parties, against whom judgment is rendered in the Marion Superior Court at special term, do not join in an appeal to the general term of such court, they are not parties to the judgment of the court in general term, and an appeal by them from such judgment to the Supreme Court will be dismissed.</p> <p>Same. — ■ When Appeal will Lie from Judgment at Special Term to Supreme Court. — No appeal will lie from the judgment of the Marion Superior Court at special term, directly to the Supreme Court, except where some of the judges of the general term are shown to be incompetent, and then only when an appeal is perfected within one year from the rendition of the judgment. Section 1362, R. S. 1881.</p> <p>Supreme Court. — Bill of Exceptions. — Omission of Evidence.- — The Supreme Court will not consider or decide any question which depends for its decision on the evidence in the cause, where the bill of exceptions shows affirmatively that it does not contain all the evidence.</p>

<p>Appeal. — Time.—Decedents’ Estates. — Proceeding to Set Aside Final Report of Administrator. — An appeal from the judgment in a proceeding to set aside the final report of an administrator is governed by sections 2454 and 2455, R. S. 1881, relating to decedents’ estates, and must be taken •within the time there provided.</p>

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

<p>Drainage. — Notice of Filing Petition. — Act of 188$. — Under section 2 of the drainage act of 1883 (Acts 1883, p. 174), the notice to land-owners provided for therein is of the filing of the petition, and it must follow and not precede such filing.</p> <p>Same. — Irregular Notice. — Assumption of Jurisdiction. — Judgment.—Collateral Attack. — The question as to whether proper notice has been given is a jurisdictional one, and where there is some notice, and the circuit court acts under it as given, although it is irregular and defective, its judgment will stand as against a collateral attack.</p> <p>Same. — Resignation of Commissioner after Reference. — The resignation of one or more drainage commissioners, after a matter has been referred to them by name, and the appointment of their successors, will not affect the proceeding. It is not necessary to name the commissioners in the order of reference.</p> <p>Same. — Failure to File Report at Time Fixed. — Collateral Attack. — The failure of the drainage commissioners to file their report at the time fixed in the order of reference, without obtaining an extension of the time, is an irregularity available on appeal, but not on a collateral attack. Same. — Remedy.-—-Appeal.—Practice.—Where a remedy by appeal is provided, that remedy must be resorted to for the correction of all errors and irregularities.</p>

<p>Intoxicating Liquob.— Purchaser of Business not Protected by License of Vendor. — The purchaser of a saloon from one who has been licensed to sell intoxicating liquors is not protected, in conducting such business, by the license of his vendor.</p> <p>Same. — Sale.—Agency.—Contract.—Bhidenee.—For a contract and evidence considered and held sufficient to constitute a sale by the licensee to the person put in charge of the saloon, and not the mere creation of an agency, see the opinion.</p>

<p>Special Finding. — General Verdict. — Inconsistency.—Judgment non Obstante. —Contract of Settlement. — Where a complaint declares upon a written instrument, signed by the defendant, setting forth that the parties had “ settled all accounts in full up to date, November 27th, 1877, and balance due ” the plaintiff $804.21, a special finding by the jury that the defendant executed the instrument, and that he had paid nothing to the plaintiff since its execution, is inconsistent with a general verdict for the defendant on a cross complaint, setting up items of account against the plaintiff which accrued prior to the date of such instrument, and judgment should go accordingly.</p> <p>Same. — Interrogatories to Jury. — Submission by Court. — Presxmipbion.—Cases Modified. — In the absence of any showing on the subject, when the interrogatories to the jury and their answers to them appear in the record, it will be presumed that the trial court did its duty and submitted to the jury such interrogatories, with instructions to answer the same if they found a general verdict, and the special finding will be considered. Decisions in conflict with this ruling are modified.</p>

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

<p>Estoppel. — Married Woman. — Joining irn Deed to Husband’s Land, — Assertion by Her of After-Acquired Title.— Wairanty. — A wife, who joined her husband in the execution of a warranty deed conveying his land, at a time when she was not liable upon covenants of warranty, is not estopped from asserting a title to such land which she subsequently acquires in her own right.</p> <p>Taxes. — Payment by One in Possession Under Legal Title. — Lien.—Mortgage. —For taxes paid by him while in possession under the legal title a person can not enforce a lien upon the real estate as against one who obtains title thereto through the foreclosure of a mortgage already existing thereon.</p>

<p>Habeas Cobpus. — Motion to Quash Writ. — Sufficiency of Complaint. — Practice. —In habeas corpus proceedings a motion to quash the writ tests the sufficiency of the complaint or application on which it is issued.</p> <p>Same. — Statutory Requirements. — Where the complaint in a habeas corpus proceeding complies substantially with the requirements of the statute (section 1108, E. S. 1881), it is sufficient to withstand a motion to quash the writ.</p> <p>Same. — Imprisonment Under Judgment. — Judgment Must be Void to Entitle Discharge. — The writ of habeas corpus can not be used for the correction of mere errors in the judgment under which the petitioner is restrained of his liberty. To entitle him to a discharge from custody he must show, either by his petition or proof, that the judgment is void.</p> <p>Same. — Justice of the Peace. — Execution Against Body. — Jurisdiction.—Erroneous Judgment. — Collateral Attach. — Where, under sections 1559 and 1560, E. S. 1881, providing for ea. sa., a justice of the peace has jurisdiction of the subject-matter and of the parties, his judgment, upon a defective verdict, however erroneous, is not void, and can not he collaterally attacked by a party thereto in a habeas corpus proceeding.</p> <p>Statutes.— Restraint of Personal Liberty.— Construction. — Statutes which may operate in restraint of personal liberty must be strictly construed.</p>

<p>Promissory Note. — Principal and Surety. — Accommodation Endorser. — Subrogation. — One who becomes accommodation endorser for two joint makers-of a promissory note at the request of one only of such makers, upon being compelled to pay, is subrogated to the rights of the original creditor, and may maintain an action against the other maker, both presumptively standing to him as principals.</p> <p>Same. — Delivery.—Implied Authority of One Joint Maher to Procure Endorser. —A promissory note is not a complete instrument until delivery, and the possession of it by one joint maker impliedly authorizes him to secure an additional endorser.</p>

<p>Practice. — Evidence.—-.Answers to Interrogatories. — Judgment.—In determining a motion for judgment on special findings notwithstanding the general verdict, the evidence, whether documentary or otherwise, can not be considered.</p> <p>Same. — Unless it affirmatively appear that the facts specially found are irreconcilably in conflict with the general verdict, the latter must control.</p> <p>Beal Estate. — Ejectment.—.Defence.—Equitable Mortgage. — Where one holding a deed absolute on its face sues to recover possession of the land therein described, the person in possession may defeat a recovery by proof that the deed was taken as security for money loaned to, or advanced as a loan for, the person in possession. The real nature of the transaction may be inquired into, and what purports to be an absolute deed, whether made by the party claiming the equitable right, or pursuant to a judicial proceeding, or otherwise, may be shown to be in legal effect only a mortgage.</p> <p>Same. — Sheriff’s Sale. — Agreement by Purchaser to Extend Time for Redemption.- — Statute of Frauds. — An agreement made during the year for redemption by the purchaser at sheriff’s sale, or his assignee, by which the time for redemption is extended, is valid, and will prevent such purchaser or assignee from acquiring title made under such sale. Such a contract is not affected by the statute of frauds.</p> <p>Same. — Evidence.—In an action for possession of real estate, where the plaintiff claims an absolute legal title under a deed, it is proper to admit evidence showing that the plaintiff has another action pending to foreclose the defendant’s equity of redemption in the same land, thereby treating such deed as a mortgage, and this, notwithstanding the fact that the foreclosure suit was originally joined with the suit in ejectment, and the causes of action subsequently separated.</p>

<p>Drainage. — Surveyor’s Certificate to Contractor. — Must be Collected as Other Taxes. — Personal Action Against Owner will not Lie. — An action will not lie against the owner o£ land, whether a resident or non-resident, for the recovery of the amount of a certificate executed by the county surveyor to a contractor for the construction of a section of ditch, pursuant to section 4305, R. S. 1881, or for the enforcement of the lien thereby given ; but it is the duty of such surveyor to file a copy of the certificate with the county auditor, to be charged and collected as other taxes.</p>

<p>Abgument 'op Counsel.— Comments on Change of Venue. — Misconduct Justifying Reversal of Judgment. — Repeated comments of counsel for the defendant, in argument to the jury, sanctioned by a ruling of the trial court, on the fact that the plaintiff had taken a change of venue, is such misconduct as will justify a reversal, unless it appears that no harm resulted.</p> <p>Same. — The argument of counsel to the jury must be confined to the law and the evidence.</p>

<p>Criminal Law. — Instructions.—Harmless Error. — Verbal inaccuracies in instructions, or technical errors in the statement of merely abstract propositions of law, are not available for the reversal of the judgment, where they result in no substantial harm to the defendant, and where, taking the instructions as a whole, the jury are correctly charged in respect to the law applicable to the facts in the case.</p> <p>Same. — Seasonable Doubt. — An instruction on 'the subject of reasonable doubt, that in order to justify an acquittal, the doubt must “arise out of the evidence in the case,” and be such as to cause a prudent man to hesitate “ in the gravest and most important affairs of life,” is erroneous. The evidence must be such as to produce in the minds of prudent men such certainty that they would act upon the conviction produced without hesitation in their own most important affiairs.</p> <p>Same. — Indictment.—Murder.—Mortal Wounds Inflicted by Different Instruments. — Jury Need not Determine Which Caused Death. — Where the infliction by the accused upon the deceased of two mortal wounds with different instruments, resulting in death, is charged in separate counts of an indictment, the jury may find the defendant guilty as charged in both counts, without determining which wound was the immediate cause of the death..</p> <p>Same. — Evidence.—Threats.—Upon the trial for murder of one who has killed a rival suitor, evidence of a general threat made by the defendant to kill any one whose attentions should be received by the object of his jealous regard, is admissible.</p>

<p>Deainase. — Notice—Appearance.— Waiver. — Joining in Remonstrance. — The joining in a remonstrance against the establishment of a ditch and the levying of assessments, is an appearance which waives notice.</p> <p>Same. — Injunction.—Where there has been no objection to the notice, its validity can not be questioned collaterally in a proceeding for an injunction.</p> <p>Same. — Assessments not Reviewablerin Suit for Injunction. — A land-owner can not by a suit for an injunction have a review of the assessment of benefits and damages in a ditch proceeding. Such questions must be litigated before the board of commissioners, where the proceeding originated, or on appeal.</p> <p>Same. — Proceedings Must be Void to Authorize Injunction.. — An injunction will lie where the proceedings are void, but not where they are merely erroneous or irregular.</p> <p>Same.' — Appeal from Board of Commissioners. — Power of Circuit Court to Remand. — Upon appeal from a decision of the board of commissioners, in a drainage proceeding, the circuit court has authority, after a hearing, when it deems it proper, to remand the case to the board for further action.</p> <p>Same. — An order of the circuit court annulling the assessments, because they are erroneous, and remanding the case for that reason, vacates only that part of the proceeding.</p>

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

<p>Husband and Wipe —Act of April 16th, 1881. — Title.—Constitutional Law.— The subject of the act of April 16th, 1881, entitled “An act concerning husband and wife,” is sufficiently expressed in the title to render such act constitutional.</p> <p>Same.— Unity of Husband and Wife. — •Rule of Common Law. — The general rule of the common law, that the husband and wife, in legal contemplation, are one person, still prevails in this State.</p> <p>■Same. — Contracts Between. — Not Governed by General Rules of Law. — The dealings between husband and wife can not be treated as ordinary contracts, nor are they governed by the general rule applicable to persons who are distinct and separate individuals.</p> <p>Same. — Statute of Limitations. — The general statute of limitations does not apply to transactions between husband and wife.</p> <p>Statute oe Limitations. — Disability.—The statute of limitations begins to run at the time the cause of action accrues, although the party is under legal disability, but where it has fully run during such disability the action may be brought within two years after the removal thereof.</p>

<p>Partnership. — Scope of Business.— When Note Executed by One Partner in Firm’s Name not Binding on Firm. — One partner can not, in the absence of express authority, bind the firm or his copartner by a note executed by him in the name of the firm, in a transaction outside the scope of the partnership business, even where the money, property or chose in action for which the note is given is applied to the payment of a firm debt.</p> <p>Same. — Agreement by One Partner to Pay Firm Debt. — Surety.—Where one partner, upon a sufficient consideration, agrees to pay afirm liability, he thereby makes it his individual debt, the other partner merely standing as surety.</p>

<p>New Tbiae as of Eight. — Not Proper in Action to Enforce Lien. — Where it affirmatively appears that an action is to enforce a lien, a new trial as of right can not be granted.</p> <p>Same. — Appeal.—Practice.—Where a new trial as of right is erroneously granted, it is proper to remand the cause for judgment upon the first finding or verdict.</p> <p>Same. — Supreme Court. — Marion Superior Court.- — Where the effect of a judgment of the Marion Superior Court, in general term, is to remand the cause for such error, it will be affirmed by the Supreme Court on appeal.</p>

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

<p>Criminal Law. — Mere Weakness of Mind no Excuse for Crime. — Immunity from crime can not be predicated upon a merely weak or low order of intellect, coupled witb a sound mind.</p> <p>Same. — Power of Trial Court to Regulate Business and Sittings. — It is the province of the nisi prim court to regulate the course of business during the progress of trials, and, during the term, to control its own sittings.</p> <p>Same. — Requiring Night Argument.— Practice. — Beguiling counsel for the defendant in a criminal case to make a night argument, oyer a request, for a postponement until morning, unless it be shown that rights of the accused were thereby affected, is not an available question on appeal.</p> <p>Same. — Questions of Courtesy. — Supreme Court. — The Supreme Court will not undertake to regulate mere questions of courtesy between counsel, or between nisi prints courts and counsel.</p>

<p>Review op Judgment.— When Will not Lie. — Where the facts entitle a party to the relief awarded, a bill to review will not lie, even though the prayer in the complaint filed in the original action is not broad enough to cover the relief granted.</p> <p>Appearance. — Duty of Party. — Recital in Summons as to Relief Sought.— Practice. — Where a defendant is served with summons, it is his duty to appear and ascertain the nature of the cause of action alleged against him, and the fact that the recital in the summons does not fully inform him as to the relief sought, will not relieve him of the consequences of his failure to appear.</p>

<p>Statute of Limitations. — Promissm'y Note. — Payment.—Pleading.—To an answer to a complaint declaring on a promissory note, alleging that the cause of action did not accrue within twenty years, a reply that the defendant had made payments-on the note within twenty years, which were endorsed thereon, and that the defendant “then and there and thereby acknowledged the validity of such note and promised to pay the same,” is good.</p> <p>Same. — Payment only Prima Fade Evidence of New Contract. — •Rebutting Evidence. — Practice.—Under sections 301 and 303, R. S. 1881, payment on the cause of action is only prima fade evidence of a new or continuing contract and may be rebutted by other evidence, but the question as to whether the rebutting evidence is sufficient is for the trial court. The Supreme Court will not weigh the evidence.</p>

<p>Wile. — Contest of. — Trial by Jwry. — The provisions of section 409, R. S. 1881, providing for trial by the court of causes which were of exclusive-equitable jurisdiction prior to June 18th, 1852, do not apply to a proceeding to contest a will, which is of statutory creation, and in such proceeding there is a right to a trial by jury.</p> <p>Same. — Mental Capacity of Testator.— Witnesses. — Sections 498 and 499, R. S. 1881, do not prohibit the parties, in a proceeding by heirs to set aside a: will, from testifying as to facts relating to the mental capacity of the testator, although his executor be a party to the action.</p> <p>Same. — Eironeous Statement in Will as to Advancements. — Evidence.—For the purpose of showing the mental condition of the testator-, evidence that the statements in the will that he had advanced the sums designated to the parties named are erroneous, is admissible.</p> <p>Same. — Rational Disposition of Property. — Presumption.—If a testator has made a rational disposition of his property, no presumption of unsoundness of mind can be drawn from the fact that the distribution is unequal.</p> <p>Same.— Unequal or Unnatural Disposition of Property. — Inequality or injustice in the disposition of his estate, is a circumstance which may be considered, with other circumstances, on the subject of the testator’s mental capacity.</p> <p>Same. — Prior Declaration of Intention. — Where, prior to making his will and while in good health, the testator declared his intention to dispose of his property substantially as disposed of in the will, such fact tends to support the will.</p> <p>Same. — Loss of Memory. — Testamentary Capacity. — The loss of memory destroys testamentary capacity.</p> <p>Same. — General Verdict. — Sufficient when Covers Issues. — Where a general verdict covers all the issues and supplies a foundation for such a judgment as the law prescribes, nothing more than a general verdict is required.</p>

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

<p>Criminal Law. — Evidence.—Eying Declarations. — A dying statement made by the victim of a homicide, that the defendant had no reason that he knew of for the perpetration of the crime, is the statement of a fact which the declarant would have been allowed to make had he been a witness on the stand, and is admissible in evidence. Zoleaes, J., dissents.</p> <p>Same. — General Character of Rule. — The rule governing the admission of dying declarations is the same in all cases, whether the defence is insanity, self-defence or an alibi.</p> <p>Same.. — The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the latter.</p> <p>Same .-Ckoss-Examinalion of Defendant. — A defendant in a criminal case who elects to testify as a witness is to be treated, so far as the cross-examination is concerned, as any other witness.</p> <p>Same. — Evidence.—Cross-Examination.—While the cross-examination of a witness must be confined to the subject opened by direct examination, this rule does not restrict such cross-examination to the specific facts, developed by the direct examination; and when a subject is once entered on in the examination in chief, it is opened to a full and detailed investigation on cross-examination.</p> <p>Same. — Instructions to Jury. — Where an instruction stands alone upon one material point, neither explained nor qualified by any others, and erroneously expresses the law, there should be a reversal; but where it forms one of a series bearing upon a given question, and taking the entire series together the law is correctly stated, the rule is otherwise.</p> <p>Same. — Testimony of Defendant. — An instruction to the jury in a criminal case, where the defendant has testified, to the effect, “ that such testimony is to be received and weighed as in the case of the testimony of any other witness, and if in such case the defendant has testified to the commission of any other or different crime from the one for which he is being tried, you will not, nor have you the right to, consider such testimony for the purpose of punishing him for the crime here charged, nor must you talk about it in your jury room for that purpose, nor permit it to prejudice you, or bias your judgment against the cause of the defendant. But you may consider such evidence, if any there be in this case, in determining what credibility should be given to the defendant’s testimony,” is not erroneous.</p> <p>Same. — Murder.—Manslaughter.—Provocation.—An instruction which directs the jury that mere words do not constitute such a provocation as will reduce an unlawful killing from murder to "manslaughter, is not erroneous.</p> <p>Same. — Murder in Second Degree. — Self-Defence.—For instructions on these - subjects see opinion.</p> <p>Same. — Practice.—Argument of Counsel. — In the course of his argument in a homicide case, the prosecuting attorney, referring to the defendant, said: “ Will you believe this man, this person who has told so many lies, and who has just seen the shadow of the gallows ! ”</p> <p>Held,-not sufficient cause for reversal.</p>

<p>Exemption from: Execution. — Malicious Prosecution. — Judgment for Costs. —Where a judgment for costs is rendered against the plaintiff in an action for malicious prosecution, he is not, as to such judgment, entitled to claim the exemption from execution provided by section 703, R. S. 1881.</p> <p>Execution. — Injunction.—Tender.—Where an execution has been issued on a judgment which is right as to a part of its amount, the execution defendant can not enjoin the collection of the execution until he has first paid or tendered the part which is right.</p>

<p>Contract. — Judgment.—Merger.—A party can not present by piecemeal, in successive actions, claims which grow out of an indivisible, entire contract, and the judgment in the first action brought is a conclusive merger of all amounts due under or arising out of the contract prior to the' bringing of such action.</p> <p>•Same. — Only One Action for Breach of Entire Contract. — Where a contract, upon an entire consideration, stipulates for the performance of several acts in favor of the same person, at the same time, it is entire, and separate suits can not be maintained to recover for the failure to perform each several act.</p> <p>Same. — Former Adjudication. — Railroad.— Damages. — Dismissal.—Where, in consideration of the conveyance of a right of way, a railroad company contracts with the land-owner to construct and maintain fences along such right of way and a crossing over the road, a judgment, in an action upon such contract, for damages for .a failure on the part of the company to construct the crossing, is a bar to an action for a failure to construct the fences, although in the former action the plaintiff expressly dismissed and withdrew from the jury all claim for damages relating to the failure to construct the fences.</p>

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

<p>Drainage. — -Change of Judge.— Civil Aetion. — A drainage proceeding is so far a civil action that the provisions of sections 412 to 417, R, S. 1881, in relation to a change of judge, are applicable thereto.</p> <p>Same. — Remonstrance. — Special Finding. — Absence of Finding as to Publie Utility, etc. — Where it does not affirmatively appear from the special finding of facts, in a drainage proceeding, either that the proposed drain, will improve the public health, or benefit a public highway or street, or-be of public utility, the judgment must be for the remonstrants.</p> <p>Same. — Exception to Conclusion of Law Admits Cwrectness of Facts. — By excepting merely to the conclusions of law drawn from a special finding-of facts, a party admits that the facts have been fully and correctly-found by the court.</p>

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

<p>Landdoed and Tenant. — Lease.—Condition as to Sale. — Pretended. Sale to Defraud Lessee. — Damages.—Where a lease is executed, to be effective on the condition that the owner of the land does not sell it, a sale in good faith is contemplated, and if the lessee is defrauded of his rights under the lease by a pretended sale made for that purpose, he may maintain an action against the lessor for damages.</p> <p>Pbactice. — Motion for New Trial. — Questions as to the admission of evidence, and as to the assessment of damages, which are not presented by a motion for a new trial, will not be considered.</p>

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

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

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

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

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

<p>Contract. — Agreement to Release Maker of Note. — Consideration.—Where one parts with valuable property on the faith of an agreement by the payee of a promissory note, that if he does so the latter will release him therefrom, it is a sufficient consideration to uphold the agreement, •although no benefit results to such payee.</p>

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

<p>Judgment by Confession. — Affidavit of Debtor. — A judgment by confession before a justice of the peace is valid as between the parties, without an affidavit by the defendant that he justly owes the debt, and void only as to creditors. Section 1490, B. S. 1881.</p> <p>Same. — Knowledge or Consent of Creditor. — Salification.—Attorney and Client. — - A judgment by confession ih favor of a creditor, entered without his knowledge or consent, is void unless ratified by him ; but knowledge and consent on the part of the creditor’s attorney are sufficient.</p> <p>Same. — Sheriff’s Sale Under Satisfied Judgment Void. — Where a judgment has in fact been fully paid and satisfied, a subsequent sale of real estate thereunder to any person having actual or constructive notice of such fact is void, and will pass no title.</p>

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

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

<p>Contract. — Release of Claim, Against Debtor. — Consideration.—Where a creditor agrees to release a claim against his bankrupt debtor, in consideration that the latter will pay his other creditors a certain per cent, of their claims and procure a dismissal of pending bankruptcy proceedings, the consideration, in the absence of fraud or mistake, is a valid one.</p> <p>Same. — Performance.—Pleading.—To make such agreement available as a defence to an action by the creditor on the claim agreed to be released, the debtor must show that he has paid to the other creditors the per cent, agreed upon. A general averment that he “ settled with them ” is not sufficient.</p> <p>Same. — Release.—Parol Evidence Admissible to Explain. — -A release, reading “I hereby release my claim for six hundred and thirty-seven and dollars, now-in the hands of the assignee, against G— S--, bankrupt,,r may be explained, qualified or contradicted by parol evidence, and the circumstances under and the purposes for which it was executed may be shown.</p>

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

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

<p>Pleading. — Complaint. '- — Motion to Make Specific.— Occupying Claimant.— Where a complaint, under the occupying claimant law, seeks a recovery for improvements, described merely as “ clearing and fencing, removing stones and putting the land in a state of cultivation,” of the value of one hundred and fifty dollars, it is error to overrule a motion to make such complaint more specific.</p>

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

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

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