Volume 106 — Indiana Reports

<p>Telephone. — Common Cartier. — A telephone company is a common carrier of news, in the sense in which a telegraph company is a common carrier.</p> <p>Same. — Service Musi be Impartial. — The rule that requires a common carrier to serve all, so far as able, with impartiality, is applicable to a telephone company, engaged in a general telephone business.</p> <p>Same. — Act of April 8th, 1885. — The second section of the act of April 8th, 1885 (Acts 1885, p. 151), providing that a telephone company shall supply applicants with telephone facilities without discrimination or partiality, is valid.</p> <p>Same. — Legislature May Regulate Charges. — Patent.—Act of April 13th, 1885.— The Legislature has power to regulate, as in the act of April 13th, 1885, the price which a telephone company, engaged in a general telephone business, may charge for the use of its instruments, notwithstanding the patented quality of the latter.</p> <p>Same.— Word “ Telephone," Meaning of. — The word “ telephone,” as used in the act of April 13th, 1885, has reference to an organized apparatus, or combination of instruments, usually in use in transmitting and receiving telephonic messages, and not to a single instrument technically known as a telephone.</p>

<p>Railroad. — Animals.—Fences.—Where an action against a railroad company to recover for stock killed is commenced in the circuit court, it must be averred in the complaint, and proved upon the trial, that at the point where the animals entered upon the track, the railroad was not securely fenced.</p> <p>Same. — Cattle-Guards.— Wing-Fences. — Although there are sufficient fences running parallel with the track, at the point where animals entered upon it, yet, if there are no wing-fences connecting the parallel fences with the cattle-guards, the road, beyond such cattle guards at least, is not securely fenced.</p> <p>Same. — Injury Must be Done by Actual Contact with Locomotive or Cars. — In an action under the statute, evidence must be introduced from which the court or jury may find that the locomotive or cars came in actual contact with the animals killed or injured.</p>

<p>■Costs. — Motion to Stay Proceedings Until Costs of Former Action are Paid.— Practice. — Presumption.—A. motion to stay proceedings until the costs of a former suit, involving the same questions, which had been dismissed, have been paid, should be sustained, unless the presumption that the second action is vexatious is removed by a showing.</p>

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

<p>Town. — Eminent Domain. — Public Use. — Right of Lot-Owner in Street. — Compensation. — The owner of a lot abutting upon the street of a town has a property right in the street as it exists, which can not be appropriated and taken from him against his consent, without compensation; but, in the exercise of the power of eminent domain, it may be taken for a public use by due process of law.</p> <p>Same. — Discretion of Municipal Body. — Unless it is apparent at first blush that the proposed use is not public, courts can not interfere with the discretion confided to a municipal body, in doing that which the statute expressly authorizes.</p> <p>Same. — Power to Narrow Street. — The board of trustees of an incorporated town in this State have, upon the conditions imposed by the statutes, power to narrow a street, and property appropriated in making such improvement is for a public use.</p> <p>Same. — Consent of Lot-Owners. — The statute requiring the written consent of a lot-owner to the vacation of a street in front of his lot, has no application to an improvement by narrowing or altering it'.</p> <p>Same. — Benefits and Damages. — Where the report of the commissioners appointed by the board of trustees to assess benefits and damages is silent as to the value of the right in question, and resulting damages, it will be presumed that the commissioners considered them as nothing.</p> <p>Same. — Notice.—Jurisdictional Fact. — The finding of the board of trustees that due notice of the proceeding for the improvement has been given to a property-owner, is conclusive against others who were properly served-</p>

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

<p>Supreme Court. — Assignment of Error. — Change of Venue. — Where the record shows that the court in which the action was commenced overruled a demurrer to the complaint, but does not show such a ruling by the court to which a change of venue was taken, an assignment of error that- the latter court erred in overruling a demurrer to the complaint presents no question to the Supreme Court.</p> <p>Same. — Complaint.—Sufficiency of. — A complaint which is questioned for the first time by an assignment of error in the Supreme Court must, to justify a reversal of the judgment, wholly omit the averment of facts necessary to the existence of the cause of action attempted to be stated.</p> <p>Contract. — Damages.—Dismissal of Action on Agreement to Pay. — Where an action for damages is dismissed upon the agreement of the defendant to pay the plaintiff a designated sum, the latter may maintain an action on such agreement.</p> <p>Same. — Eddenee.—Papers in Prior Action. — In such case, the papers filed in the dismissed action are competent evidence to show merely that there was a- controversy between the parties, and its character.</p>

<p>Supreme Court. — Available Errors. — Practice.—-The only errors which will warrant the reversal of a judgment are such as affirmatively appear to have prejudiced the substantial rights of the party appealing.</p> <p>Railroad. — Public Aid. — Forfeiture.—Injunction.—The mere failure to locate, within a prescribed time, a railroad to which a public donation has been made, is not, under existing statutes, a cause for forfeiture of the right to such donation, and where the road has actually been located and the required amount of money expended in its construction within the township, the collection of the special tax can not be enjoined.</p> <p>Same. — Location of Poad. — Order of Commissioners Placing Tax on Duplicate Conclusive as to. — The order of the board of commissioners placing the special tax on the duplicate is conclusive as to the fact of the location of the road within the township, and can not be questioned in a proceeding for an injunction.</p> <p>Same. — Statutes Bepealed. — Sections 4060 and 4062, R. S. 1881 (sections 16 and 18, Acts 1869, p. 92), relating to public aid to railroads, have been repealed by subsequent legislation. See opinion.</p> <p>Same. — Forfeiture Must be Declared by County Commissioners. — Unless there is an adjudication by the board of commissioners, in the manner provided by existing statutes, declaring a forfeiture, because of a failure to make the expenditure required, or to complete the road within the time prescribed, the collection of the special tax can not be enjoined.</p>

<p>Railroad. — -Right of Way. —Agreement to Maintain Fence. — Damages.—For the breach of a contract by a railroad company with a land-owner to fence its right of way, the cost of erecting the fence and also special damages for animals killed, for damage done by trespassing animals, and for the loss of pasturage, may be recovered.</p> <p>Same. — Diligence.—Defence.—If one can reasonably protect himself from the consequences of the violation of a contract by another, it is his duty to do so ; but his failure in that respect, while the contract is in force, and where the other party has equal opportunity for performance and equal knowledge of the consequences of non-performance, is not available as a defence to an action for damages.</p> <p>Same. — Deed.—Contract to Locate'Depot at Certain Place. — Public Policy. — -A stipulation in a deed conveying a right of way, that in consideration of such conveyance the railroad company will locate and maintain a depot at a certain place, without any restriction or prohibition against any other location, is not void as being against public policy, and for a breach an action for damages will lie.</p> <p>Same. — Measure of Damages. — Evidence.—The damages recoverable in such case are to be determined by the injury actually sustained by the failure of the railroad company to perform its contract, and evidence tending to show the increase in value of the plaintiff’s remaining land, which the location of a station at the point agreed upon would have produced, is proper.</p> <p>Same. — Deed.—Acceptance.—Principal and Agent. — Where a railroad company accepts a deed stipulating -for the performance by it of certain acts, it can not question the authority of its agent to make the contract.</p>

<p>Pleading. — Counter-Claim.—Under sections 350 and 351, R. S. 1881, any matter which is pleaded as a counter-claim must either arise out of, or be connected with, the contract or transaction set forth as a cause of action in the complaint; otherwise the counter-claim will be bad on demurrer for the want of facts, although the facts set forth might have been a good defence if pleaded by way of answer.</p> <p>Same. — Account.—Counter-Claim as to Separate Items. — Where a complaint declares on an account, and a bill of particulars containing the items of account is filed, each item constitutes a distinct cause of action within the meaning of the statute relating to counter-claims, and a counterclaim may be founded upon any matter arising out of or connected with it.</p>

<p>City. — Improvement of Real Estate Owned by Oity. — Assessment of Adjacent Lot-Owners. — The city council has no jurisdiction to improve the property of the city, held and used for market purposes, at the expense of owners of adjoining lots.</p> <p>Same. — Injunction.—Practice.—Where the city council proceeds in any matter without jurisdiction, such proceedings are void, and injunction, is the appropriate remedy.</p>

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

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

<p>New Trial as Matter of Right. — Partition.—A party to an ordinary suit for the partition of real estate, where neither the title nor the right to possession is in question, is not entitled to a new trial as a matter of right under section 1064, R. S. 1881.</p>

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

<p>Judgment. — Relief From. — Procedure.—Appearance.—Practice.—Where the adverse party appears to a motion, made after the term, to be relieved from a judgment, as provided in section 396, B.S. 1881, and the matter is disposed of on its merits without objection to the form of procedure, such objection can not be made in the Supreme Court.</p> <p>Same. — Pleading.—An application, under such section 396, to be relieved from a judgment, which is substantially in the language of the statute, is sufficient to entitle the moving party to all the relief therein provided, including the setting aside of a default.</p> <p>Same. — Defence.—Affidavits.—Practice.—In a proceeding to be relieved from a judgment, the affidavits upon the question of the applicant’s defence to the action in which the judgment was rendered, can not be contradicted.</p> <p>Same. — Default.—Excusable Neglect. — Where a defendant has employed attorneys to defend the action, and they enter an appearance for that purpose, but, owing to a misunderstanding among all the parties and attorneys with reference to a delay pending a contemplated settlement, they are prevented from doing so, there is such excusable neglect as will entitle him to relief from a judgment by default taken under such circumstances.</p> <p>Supreme Court. — Evidence.—Bill of Exceptions. — In order that the Supreme Court may pass upon the evidence, the record must affirmatively show that it contains it all. Any statement in the bill of exceptions which will show that fact will be sufficient.</p>

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

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

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

<p>Intoxicating Liquor. —Indictment.— Fixing Offence at Date Subsequent to Return. — An indictment, charging that the defendant made an unlawful sale of' intoxicating liquor “ on the 16th day of August, 181S4’’ is bad on a motion to quash. Stale v. Sammons, 95 Ind. 22, explained.</p>

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

<p>Dbainage. — Injunction.—Injunction will^not lie to restrain a county auditor from selling allotments of ditch work, unless the proceedings which resulted in the establishment of the ditch are void on the face of the record.</p> <p>Same. — Appeal.—Collateral Attach. — Where there is a remedy for the correction of errors and irregularities by appeal, they are not available in a collateral proceeding for the overthrow of a judgment.</p>

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

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

<p>Practice. — Motion to Strike Out Part of Deposition. — New Trial. — Error in refusing to strike out parts of a deposition, to be available on appeal, must first be assigned as a cause for a new trial.</p> <p>Same. — Objection to Validity of Deposition Must be Made Before Trial. — Under section 439, K. S. 1881, an objection to the reading of a deposition, made after the trial is entered upon, on the ground that it was taken without authority of law, comes too late. When the jury is sworn, the trial is commenced within the meaning of such section.</p> <p>Contract. — Sale of Engine. — Rescission.—Evidence.—A party who is entitled to a rescission of a contract for the purchase of an engine, because it fails to comply with the warranty, may also rescind as to a belt, which is a part of the engine equipment, although the latter is not defective, and evidence as to its return to the vendor is admissible.</p> <p>Same. — Defects in Construction.— Warranty. - A machinist who repaired an engine two years after its purchase may testify as to defects in its structure and general character, where the issue is as to its fulfilment of the warranty given upon its sale.</p> <p>Same. — ■ Evidence as to Powers of Another Engine.— Comparison.— Evidence merely as to the powers of another engine of the same make and pattern, used in running machinery of the kind applied in testing the engine in controversy, is admissible, there being no formal comparison between the two attempted.</p> <p>Same. — Stipulation for Notice.— Waiver. — Although the written contract of sale provides that if, after a trial of one week, the engine fails to work well, the purchaser shall give the vendor written notice of its failure, the latter may, by subsequent conduct, waive his right to insist upon such notice. For evidence considered in this connection see opinion.</p>

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

<p>Vendor’s Lien. — Assignment of Sheriff’s Certificate of Sale. — Promissory Note.— L. sold land to M., who executed a mortgage to secure part of the purchaSe-price. Upon foreclosure and sale, L. purchased the land, and, before the expiration of the year for redemption, assigned her certificate of purchase to B., who, in part payment therefor, executed her promissory-note, stipulating therein that it was given for “ purchase-money for real estate.” In a suit by L. on the note, B. being in possession of the land: under her sheriff’s deed;</p> <p>Held, that a vendor’s lien may be declared and enforced for the amount due on such note.</p> <p>Same. — A vendor’s lien results from the transactions between the parties, and is manifested by all the circumstances attending each particular case, and if, upon looking through the transaction, it appears that the-debt is in fact part of the purchase-price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien, will be declared upon the land in favor of the person to whom the debt is due, notwithstanding the fact that the technical relation of vendor and vendee did not exist. ,</p>

<p>INJUNCTION. — Cancellation of Instrument Illegally Recorded. — Removal of Cloud on Title. — The owner of real estate may maintain an action to cancel the record of an agreement, not acknowledged and not entitled to be recorded, which casts a cloud on his title, and to enjoin the person so causing it to be recorded from setting up any claim to the real estate.</p> <p>Quieting Title. — Executory Contract. — Performance.—Answer.—To a complaint by the owner of real estate to cancel the record of an instrument casting a cloud upbn his title, an answer which, after admitting that said instrument was not entitled to be recorded, alleges that the plaintiff had full knowledge of defendant’s rights when the real estate was conveyed to him, and that defendant was ready to fulfil his part of the contract contained in said instrument, but which fails to aver that he did perform it, is insufficient.</p> <p>Same. — Vendor and Purchaser. — Notice.—Where it affirmatively appears that one of the parties to an executory contract for the sale of real estate can not perform his part of the contract, he can not prevent the sale and conveyance of the real estate to one who has knowledge of such contract.</p> <p>Contract. — May be Valid though not Entitled to Record. — An instrument or agreement may be valid between the parties and those having actual notice, though not entitled to be admitted to record.</p> <p>Same. — Actual Notice of Recorded Instrument. — An instrument, not entitled to go upon record, is not constructive notice although recorded; but to one who has actually seen it of record it will constitute notice.</p>

<p>Town. — Power to Parchase Fire Engines. — Amendment of Charter. — A town, incorporated by a special act of the Legislature, prior to the Constitution of 1851, had power under its charter to purchase fire engines, but upon amendment of the charter by the Legislature of 1873, such power was omitted.</p> <p>field, that, notwithstanding such omission, the town possesses inherent power to purchase such engines for the protection of the property of its citizens from fire. ' .</p>

<p>Exemption erom Execution.— Householder. — Widower.—A widower wlio, after his wife’s death, continues to occupy the same prqperty, the legal title to which is in his daughter, he paying no consideration for the use of the premises except by way of taxes and improvements, and who contributes to the living expenses of his daughter’s family who have come to reside with him at his request, although neither they nor others are dependent upon him for support, is a householder within the meaning of the law providing for exemption from execution.</p> <p>Proceedengs Supplementary to Execution.— Witnesses. — The judgment plaintiff, in a proceeding supplementary to execution, is not concluded by the testimony of the judgment debtor, given upon his examination, but he may examine other witnesses.</p>

<p>From the "Warrick Circuit Court.</p>

<p>Pleading. — Account.—Omission of Avermemt that Debt is Due. — A complaint on account for work and labor performed at the request of the defendant, which charges that the defendant is indebted to the plaintiff, but omits to allege that the debt is due and unpaid, is good.</p> <p>Instruction to Jury. — •Failure to Give in Writing Upon Request. — Supreme Court. — Practice.—A failure of the trial court to instruct the jury in writing upon request of the appellee, is not available to the appellant for a reversal of the judgment.</p> <p>Same. — -Exceptions to Instructions in Motion for New Trial. — Exceptions to instructions, made for the first time in the motion for a new trial, are too late to be available.</p>

<p>Decedents’ Estates. — Executor.-—Diligence in Collecting Indebtedness. — Liability. — An executor, who is indebted to the estate of his testator, and fails to pay such indebtedness, when solvent, becomes chargeable therewith in his account with his trust, notwithstanding that he may after-wards and before final settlement become insolvent.</p> <p>Same.' — -C. was indebted to the estate of W., of which he was executor. Such indebtedness was represented by a promissory note executed by C. who, as executor, and being then solvent, placed credits on the note indicating the full payment thereof, but really paid nothing thereon. He afterwards on final settlement claimed credit for the amounts so credited on the note, representing that the same was a mistake on his part, and that he had, since that time, become insolvent.</p> <p>Held, that he was not entitled to such credits, but was chargeable with the full amount of such indebtedness, in his account with his trust, and, as such executor, liable therefor.</p>

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

<p>Real Estate. — Action to Quiet Title. — Pleading.—In an action to quiet title, it is not necessary that the complaint should aver in terms that the defendant’s claim of title is adverse to the title of plaintiff, if the facts pleaded show that such claim is inconsistent therewith.</p> <p>Same. — Partition.—Right to Trial by Jury. — The partition of real estate was not a matter of exclusively equitable jurisdiction in this State prior to June 18th, 1852, nor is it a subject of exclusive equitable jurisdiction within the general principles governing.proceedings in chancery; and in an action for partition a trial by jury may be demanded.</p>

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

<p>Drainage. — Action to Collect Assessment. — Jurisdiction.—An action to collect a drainage assessment levied under section 4273, et seq., it. S. 1881, as amended by the act of 1883 (Acts 1883, p. 173), must be brought in the circuit court of the county in which the real estate assessed is situated, although the owner may reside in another county in which the drainage proceeding was instituted. See section 307, R. S. 1881.</p>

<p>Criminal Law. — Failure to Discuss Error,— Waiver. — Supreme Gourt. — A failure to discuss, in the Supreme Court, an alleged error of the trial court in overruling a motion in arrest of judgment, is a waiver of such error.</p> <p>Same. — Jury.—Rendering Verdict. — Omission to Gall Names. — While the names of the jury, when they appear in open court to render their verdict, should always be called, as provided in section 1829, R. S. 1881, yet the omission to call their names is not a fatal error, unless it appears that they were in fact not all present.</p> <p>Same. — Continuance.—Affidavit.—Bill of Exceptions. — Where an affidavit for a continuance is not set out in the bill of exceptions, or made a part thereof by the words “ here insert,” as provided in section 626, R. S. 1881, or by an order of court, a ruling on such affidavit will not be reviewed on appeal.</p> <p>Same. — Motion to Quash Venire. — Challenging Array. — Where a defendant moves to quash the venire issued for a jury, and also challenges the array, but the record does not show, in either instance, the causes for the motion and challenge, or that the defendant’s rights were prejudiced by the rulings thereon, such rulings are not available on appeal.</p> <p>Same. — Argument of Cawnsel. — Misconduct.—Where counsel for the State, in his closing argument to the jury, attempts to account for the absence of a witness for the State, but desists upon objection by the defendant and at the direction of the court, there is no such misconduct as will justify a reversal.</p> <p>Same. — Incest.—Force.—Step-Father and Step-Daughter. — Under section 1990, R. S. 1881, a step-father, who has sexual intercourse, whether by force or otherwise, with his step-daughter, knowing her to be such, is guilty of incest.</p>

<p>Taxes.— Water-Omft. — Residence of Owner. — Under section 6293, B. S. 1881, all water-craft must be listed for taxation at the place of the-owner’s residence, without regard to its actual situation.</p> <p>Same.— Water-Q-aft Owned, by Partners Residing at Different Places. — Town.— Two of the members of a firm owning water-craft resided in P., an incorporated town in this State, the property being kept at a harbor two miles beyond the town. The other partner resided in another town in the same county.</p> <p>Held, that the property is subject to taxation by the town of P.</p>

<p>Husband and Wipe. — Gift.—Exemption from Execution. — Debtor and Creditor. — -Real Estate. — Title.—Where a husband, having less money and property than the amount to which he is entitled as exempt from execution, gives a part thereof to his wife which she uses in making the first payment on real estate purchased by her, such real estate is not ■ subject to execution for the husband’s debts.</p>

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

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

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

<p>Promissory Note. — Surety.—Alteration.—Contribution.—A surety who pays a promissory note which he could defeat because of an alteration by the addition of the name of another maker, without his consent, may compel contribution from co-sureties who subsequently signed the note.</p> <p>Same. — Irregular Endorsement. — Parol Eridenee to Show Relation Between Obligors. — In the case of an irregular endorsement, the relation to each other of those liable on the note may be shown by parol evidence. Same. — Presumption of Co-Suretyship. — Where parties appear to be sureties, they will be presumed to be co-sureties.</p> <p>Same.— Who are Co-Sureties. — Persons who endorse a promissory note, not in the regular course, to give the maker credit, and who have knowledge that a person whose name is attached as maker is in fact surety, are co-sureties with the latter, and bound to contribution.</p> <p>Pleading. — Character of Determined, by Facts and not Prayer. — The facts stated, and not the prayer for relief, determine the character and theory of a pleading.</p>

<p>County Clerk. — Ineligible to Hold Over After Serving Eight Consecutive Year?. — Vacancy. — Constitutional Lato. — Where one has held, by election, the office of clerk of the circuit court for eight years consecutively, he can not, under the State Constitution, hold over upon the death, without qualifying, of. the person elected to succeed him, but upon the expiration of such period a vacancy arises which the board of commissioners may fill by appointment. Section 2 of article 6, and section 3 of article 15, of the Constitution construed.</p> <p>Same.— County Commissioners. — Filling Vacancy. — Special Session. — The board of commissioners are properly convened in special session to fill a vacancy in an office, where they meet at the time and place mentioned in the auditor’s writ to the sheriff, service of which they acknowledge, in which he is commanded to summon the members of the board to meet on a date six days later to fill the vacancy.</p>

<p>Assignment fob Benefit of Ceeditoes. — Right of Action by Creditor.— The statute governing voluntary assignments by debtors for the benefit of creditors does not suspend the creditor’s right to maintain an action at any time, in the proper court, for the recovery of a personal judgment against the assignor for the amount due.</p>

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

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

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

<p>Dbaestage. — Notice.—Judgment.—Collateral Attack. — Where there is some notice, although defective, it will protect the judgment as against a collateral attack.</p> <p>Same. — Complaint.—Exhibits.—Practice.—Instruments filed with the complaint, which do not constitute the foundation of the action, can not be considered in determining the sufficiency of the complaint.</p> <p>Same. — Action to Enforce IAen. — Copy of Assessment. -In an action to enforce a drainage assessment, a copy of the assessment must be made part of the complaint.</p> <p>Same. — Notice.—It must appear, in some manner, either in the body of the complaint, or in the copy of the assessment filed as an exhibit, that there was some notice. Albertson v. Staie, ex rel., 95 Ind. 370, limited. Same. — Presumption of Jurisdiction. — Every presumption is in favor of the jurisdiction of the circuit court; the record is prima facie evidence of it, and will be held conclusive until clearly disproved.</p> <p>Same. — Sufficiency of Complaint. — Where the complaint to collect a ditch assessment shows a petition, some notice, a judgment on the petition, and an assessment levied against the complaining property-owner, it is sufficient to require an answer.</p>

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

<p>Guardian and Ward. — Setting Aside Final Report. — Improper Payment of Money on Order of Court Obtained, by Misrepn-esenlation, — Where a guardian improperly pays out money on an order, of court obtained by misrepresentation of facts, the setting aside of his final settlement report is warranted.</p> <p>Same. — Negligence.—Res Judicata. — It is not necessary to set aside a guardian’s final report in order to maintain an action against him for negligence in the management of his trust, unless the approval of the report involve an adjudication of the matters complained of.</p> <p>Same. — Negligent Management of Real Estate. — The approval of his final report does not adjudicate the subject of the guardian’s negligence in the management of his ward’s real estate, unless it is embraced in the report.</p> <p>Same. — Rule as to Presumption Against Guardian. — Instruction.—Where no transaction or dealing between the guardian and ward is involved in an action by the latter against the former, to set aside a final report and to recover damages for negligence in the management of the trust, it is error to instruct the jury that it is their duty “ to presume in favor of the ward and against the guardian as strongly as the facts will warrant.” Jennings v. Kee, 5 Ind. 257, distinguished.</p>

<p>Foreign Corporation.— Compliance with Law Authorizing it to do Business in this State. — Presumption.—Pleading.—Where the complaint of a foreign corporation is silent on the subject, it will be presumed, on demurrer for want of facts' and want of legal capacity to sue, that it has complied with sections 3022 and 3023, R. S. 1881, authorizing it to do business in this State.</p>

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

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

<p>Guardian and Ward. — Inventory.—Damages.—A guardian’s failure to file an inventory of bis ward’s estate is a technical breach of his bond, authorizing only nominal damages unless actual damages are shown.</p> <p>Same. — Action Against 8v,reties and Administrator. — Demand.—A demand is not necessary to the maintenance of an action against the administrator and bondsmen of a deceased guardian for money in his hands at the time of his death, belonging to his wards.</p> <p>Same. — Conversim.—Penalty.—Demand.—In order to constitute such a conversion as will authorize the imposition of the ten per cent, penalty provided by statute, there must at least be a demand for the money and a refusal to pay.</p> <p>Same. — •Failure to Pay to Deceased Guardian’s Successor. — The penalty provided by section 2459, B. S. 1881, can only be imposed where the ward’s estate has been converted, destroyed, embezzled or concealed. The mere failure to pay over to the successor of a deceased guardian is not, in the absence of a demand and refusal, a conversion.</p> <p>Practice.' — Pleading.— When Deemed Amended in Supreme Court. — Where a complaint is first questioned in the Supreme Court, amendments which might have been made in the trial court, to conform it to the proof, will be regarded as having been made.</p>

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

<p>Principal and Surety. — Promissory Note. — Notice to Creditor to Sue Must be Given After, and not Before Action Accrues. — The notice which section 1210, R. S. 1881, provides a surety may give to the creditor, requiring him to forthwith institute suit on the contract, to be available for the surety’s discharge on the ground of delay, must be given when the cause of action has accrued, and not in advance of that time.</p> <p>Same. — Remedial Statute. — Abridgment of Common Law Right. — Such section being an abridgment of a common law right of the creditor, relief under it must be sought according to its express terms.</p>

<p>Principal and Agent.— Investing Prineipat’s Money in Agent’s Acme.— Where an agent, under the instructions of his principal, purchases property in his own name, the principal is entitled to all the profit arising from the transaction.</p>

<p>Execution. — Proceedings Supplementary. — Requiring Third Person to Answer as to Indebtedness. — Refusal of Debtor to Apply. — Affidavit.—Statute Construed. —The right given by section 819, B. S. 1881, to require a third person-who is indebted to the judgment debtor to appear and answer, while the execution remains in the hands of the officer, must be exercised in connection with section 816, and, as against the judgment debtor, the creditor must show in his affidavit or verified complaint that the debtor unjustly refuses to apply the money sought to be reached to the satisfaction of the judgment.</p>

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

<p>County Commissioners. — Pleading.—Where a claim filed before the county-commissioners will invoke the jurisdiction of the board over the subject-matter, it is sufficient.</p> <p>School Fund. — Action by Stale. — Statute of Lkmiaiiom. — In an action to recover school funds, the State is not barred by the statute of limitations.</p> <p>Same.— Unlawful Payment to Officers. — Settlement Between County Commissioners and Officers. — State not Concluded. — A settlement between the board of commissioners and a county officer does not conclude the State from maintaining an action to recover school funds unlawfully paid to such officer.</p>

<p>■Criminal Law. — Receiving Stolen Goods. — What Proof Necessary to Sustain Charge. — To sustain the charge of having received stolen goods, it must be proved that the goods were received, either directly or indirectly, from the thief, knowing them to have been stolen. One who receives goods from the person who received them from the thief is not guilty of the offence, although he takes wickedly, unless he receives them under circumstances which connect him with the thief.</p> <p>Same. — Indictment.— Unkimim Thief. — Identification.—Evidence.-—In charging the offence of having received stolen goods, it is sufficient to allege that they were stolen by some person to the grand jurors .unknown, but at the trial he must be in some manner identified or singled out, and it must be made to appear that the name of the thief was unknown to the grand jury, and that reasonable diligence was used to ascertain it.</p>

<p>Baiiroad. — Action for Injury at Railroad Grossing. — Contributory Negligence. —In an action by an administrator, against a railroad company, to recover damages for causing the death of his intestate at a railroad crossing, it must be affirmatively shown, either directly or circumstantially, that the deceased was free from contributory negligence, to entitle him to a recovery.</p> <p>Same. — Degree of Care Required. — Extraordinary precaution is demanded of one who has knowledge that a railroad crossing is peculiarly dangerous.</p>

<p>Promissory Notes.— Worthless, Action on not Necessary to Save Bights. — A party is not required to try to collect worthless promissory notes in order to save his rights.</p> <p>Same. — Collateral Security. — Tender.—Action Against Principal Debtor. — It is not necessary to .tender back promissory notes held as collateral security before proceeding against the principal debtor.</p> <p>Same. — Bepresentations that Notes are Good. — The representation that promissory notes are good and made by solvent parties, is not a mere representation of quality, but is the statement of a fact.</p> <p>Same. — Payment.—Burden'of Proof. — Notes not Payable in Bank. — Where it is alleged by a party that notes not payable in bank were accepted in satisfaction of a debt admitted to be due, he must affirmatively prove such fact.</p> <p>Contract. — Demand.—Where money is due the plaintiff on a contract, the suit constitutes a sufficient demand.</p> <p>Same. — Compromise.—Fraud.—Consideration.—A contract of compromise or settlement, procured by fraudulent representations, and without a valuable consideration, may be avoided.</p> <p>Statute op Limitations. — Aclmowledgment of Debt. — A written acknowledgment of a debt, contained in an agreement of compromise, is sufficient to avoid the bar of the statute of limitations.</p> <p>Evidence. — Papers Executed in Transaction. — All papers executed in the course of a transaction are admissible in evidence in a suit growing out of such transaction.</p> <p>Same. — Statements of One Party in Absence of Another. — The statements of one party to a transaction, not made in the presence of another, are not binding on the latter.</p> <p>Same. — Contract Value.— Evidence Aliunde. — Where the value of land is fixed by contract, other evidence as to its value is not admissible, in the absence of a plea of want or failure of consideration.</p> <p>Same. — Soundness of Mind. — Evidence for the defence, that the plaintiff was of sound mind at the time of a certain transaction, is not admissible where no evidence has been offered by the plaintiff to show that he was of unsound mind.</p>

<p>Highway. — Location of. — Practice on Appeal from County Board. — Upon an appeal from an order of the county board, in a proceeding 'for the location of a public highway, to the circuit court of the county, the cause must be tried de novo; that is, all questions in issue before the county board, on such appeal, must be tried anew in the circuit court.</p> <p>Same. — Public Utility. — Damages.—Trial of Issues. — Costs, How Apportioned. —Where, on remonstrance by a land-owner against the public utility of the road, and also on account of damages, there is a finding and judgment in favor of the public utility of the proposed road, and assessing the remonstrant’s damages, the costs follow the issues, and should be apportioned as provided in section 594, R. S. 1881.</p>

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

<p>Highway. — Obstruction.—Action for Injui-y. — Complaint.—A complaint by a citizen to recover for an injury accruing from the unlawful obstruction of a highway must show a special injury, or the action can not be maintained.</p> <p>Same. — Interference with Way to Market Town. — Special Injury. — The interference with the way leading to a market town is not sucli a special injury as will entitle an individual citizen to maintain a private action against one who obstructs a public highway.</p> <p>Pleading.— When Defect in Complaint Cured by Special Finding. — Assignment ofFmor. — Supreme Court. — Where there is a special finding affirmatively showing that all of the material facts were established by the evidence, the omission from the complaint of even an essential averment is not available for the reversal of the judgment, if the sufficiency of the complaint is questioned for the first time by an assignment of error in the Supreme Court.</p>

<p>Special Verdict.— What Facts to be Found. — Leaving Issue Undetermined.— Venire JDe Novo. — Under the statute, R. S. 1881, sections 545, 546, only the facts which are proved on the trial of a cause are to be found in the special verdict; and if the facts found leave some issues in the case undetermined, those issues must be regarded as not proved by the party having the burden of proof; and in such case the special verdict is not objectionable because it does not pass upon all the issues, and affords no sufficient cause for a venire de novo.</p> <p>Same. — Evidence.— In determining whether there was error in overruling a motion for a venire de novo, the Supreme Court can not look to the evidence.</p> <p>Uity. — Streets, Sidmalks and Grossings. — Liability for Failing to Keep in Safe Condition. — Negligence.—It is the duty of an incorporated city to keep all its streets, sidewalks and crossings in a reasonably safe condition and free from unnecessary and dangerous obstructions, so as not to endanger the persons of those lawfully using the same, and it is liable for negligently suffering them to become and remain unsafe, to any one injured thereby.</p> <p>Same. — Street Grossing. — Notice of Obstruction. — A street crossing, consisting of plank raised from two to two and one-half inches in height above the level of a sidewalk, is a dangerous obstruction, and where the city negligently suffers such an obstruction to remain in one of its public sidewalks and street crossings, for an unnecessary period of time, it is liable to one who is injured while passing over the sidewalk and crossing, without notice or knowledge of the obstruction.</p> <p>Elliott, J., dissents.</p>

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

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

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

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

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

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

<p>Mortgage. — Pre-Existing Debt. ■Consideration. — Husband and Wife. — Married Woman. — Suretyship.—A mortgage executed by a husband and wife, upon the separate property of the latter, to secure an overdue debt on which the husband was liable as surety only, and without any other consideration, is invalid, although executed at a time when it was competent for a married woman to encumber her property for the debt of a third person.</p> <p>Same.- — Principal and Surety. — Statute of Limitations. — The extinguishment of the engagement of the principal, however accomplished, releases the surety from liability, and if the debt of the former is barred by the statute of limitations, a mortgage given by the surety to secure it is not enforceable, although not barred.</p> <p>Same.— When Mortgage Enforceable After Debt is Barred. — Promissory Hole.— To continue a mortgage in"force as an independent original undertaking, notwithstanding the debt it is given to secure is barred, by reason of an agreement therein to pay the debt, such agreement must be made upon an adequate consideration. If the mortgage be to secure overdue notes of a third person, upon which the owner of the property is. not liable, the consideration is not sufficient.</p>

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

<p>Married Woman. — Inherited Property. — Real Estate Purchased with Proceeds of, not Acquired by Descent. — Where real estate inherited from an ancestor is sold, and with the proceeds and accumulated interest other property is purchased, the latter is acquired by purchase and not by descent. Gregory v. Van Voorst, 85 Ind. 108, modified.</p> <p>Same. — Mortgage of Separate Property to Secure Husband’s Debt.— When Valid Under Act of 1879. — A mortgage executed by a married woman, on her separate real estate, on January 13th, 1881, to secure her husband’s debt, was valid under the act of 1879, then in force, the property not having been acquired by her by descent, devise or gift.</p> <p>Same. — Principal and Surety. — Recital in Mortgage. — A wife does not become the principal debtor by merely signing her name to a note and mortgage above that of her husband and temporarily receiving the money loaned into her own hands, nor is her liability enlarged by a recital in the mortgage that she is principal and her husband surety. The loan must be made by her, and for the benefit of herself or her property.</p>

<p>County Auditor. — Taxes.—Duty of Auditor as to Omitted Property. — Powers not Judicial. — Compensation.—Under section 6416, R S. 1881, it is the official duty of the county auditor to search for and discover omitted property and to add the same to the tax-duplicate, with the proper valuation. In the discharge of this duty he has the powers of an assessor ; he does not act as a judicial officer, and his acts are not judgments, nor is he entitled to additional compensation for his services.</p> <p>Same. — County Commissioners. — Contract with Auditor to Discover Omitted Property. — Statute Construed. — The provision in section 6416, R. S. 1881, that “ No person other than the officials provided for in this law shall be employed by the county commissioners to discover omitted property,” does not authorize the employment of the county auditor, or other official named in that law, to discover omitted property at an additional compensation to that elsewhere given him for performing his official duties, and a contract to that end is void.</p> <p>Same. — Injunction.—Where a county auditor, although acting under a void contract with the county commissioners, by which he is to receive a certain per cent, of the taxes collected on omitted property discovered by him, discovers, places a valuation upon, and adds tp the tax-duplicate, omitted property, the taxpayer can not enjoin the collection of taxes thereon without a showing that he has been injured.</p>

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

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

<p>Guardian and Ward. — Acceptance by Guardian of Note Payable ¿o Predecessor Individually. — Liability.—A guardian has no right to accept as part of his ward’s estate a promissory note payable to his predecessor» in the trust in his individual capacity, and if he does accept such note, and it proves to be un-collectible, he is liable to the ward on his bond. Richardson v. State, ex rel., 55 Ind. 381, doubted and distinguished.</p>

<p>'County Auditor. — Taxes.— County Commissioners. — Contract with Auditor to Discover Omitted Property. — Compensation.—A contract between tlie county commissioners and the county auditor, by which the latter is to receive, as compensation for discovering and adding to the tax-duplicate omitted property, a certain per cent, of the taxes collected on such property, is unauthorized and void.</p> <p>Same. — Auditor not Authorized to Increase Valuation of Listed Property. — A county auditor has no authority to increase the valuation of property, properly listed by the owner for taxation, over the valuation made by the township assessor, although the latter has purposely undervalued such property.</p>

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

<p>Decedents’ Estates. — Changing Burial Place of Decedent. — Allowance for, when will not be Made. — An administratrix, a second wife, is not entitled to an allowance for expenses incurred in removing the body of the decedent from one cemetery to another, where the former was suitable, had been selected by the decedent, was nearer his home, and was the one where his first wife was buried, and where his children desired he should be interred.</p> <p>Same.— When Order Making Allowance to Administrator not Conclusive. — An administrator who secures from the court an unusual allowance can not claim that the order making it is conclusive, unless it be shown that it was made with a full and accurate knowledge of the facts.</p> <p>Same. — Allowance for Services. — An administrator, by reason of the distance of his residence from the county seat, is not entitled to extraordinary compensation for his services. An allowance of three hundred dollars for administering on an estate of less than three thousand dollars is probably excessive.</p>

<p>Judgment. — Taking in Wrong Name. — Default.—Collateral Attack. — Where1 the Christian name of a plaintiff is erroneously given in the complaint as “John,” instead of “James,” and by that name judgment is taken . against the defendant by default after proper summons, such judgment, in the absence of fraud, is not void, and will not be set aside in a collateral proceeding.</p> <p>Supreme Court. — Insufficient Complaint.— Intervening Emrs.— Practice. — ' Where the appellant’s complaint does not state a cause of action, the-judgment will not be reversed on account of intervening errors.</p>

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

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

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

<p>Contract. — Receipt.—An agreement, although in form a receipt, is valid and enforceable.</p> <p>Same.— Collateral Security. — Agreement to Apply to Designated Debt. — Promissory Notes. — Where a creditor accepts promissory notes as collateral security and agrees to apply the proceeds of such notes to a designated debt, with full knowledge of other debts, he is bound to perform. Same. — Signing Without Understanding.-— Diligence. — A party can not avoid a written agreement on the ground merely that he is “ not very conversant with the English language,” and that the instrument does not embody the agreement of the parties as he understood it.</p> <p>Same. — Consideration.—Agreement of Parties as to. — Where parties agree upon a consideration, the courts will not disturb their contract, and it is not material from whom the consideration moves.</p> <p>Same. — Special Finding. — Where the facts embodied in a special finding show a consideration for a contract, it is not necessary that such consideration should be stated in express terms.</p> <p>Same. — Married Woman. — Surety for Husband. — Mortgage. — Notice. — One who knows that a debt is that of the husband, and that the property mortgaged to secure it belongs to the wife, is chargeable with knowledge of the 'capacity in which the latter contracts.</p> <p>Same. — Equity.—The maxim that he who asks equity must do equity, can not overthrow a contract voluntarily entered into with knowledge of all the facts.</p>

<p>Promissory Note. — Non Est Factum. — Evidence.—Principal and Surety.— Where, under an issue of non est factum on the part of the surety, the-principal in a promissory note testifies that he took the note to the surety’s house about a certain date, where the latter signed it, and that, he was only there once to get a note signed, the surety may show that the principal’s visit was on a different date, and that the note then-signed is not the note sued on.</p>

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

<p>Criminal Law.. — Murder.—Jurisdiction where Crime is Commenced in One and .Consummated in A nother County.— Conspiracy. — Constitutional Law.— Where a person is seized and bound in one county, in pursuance of a conspiracy and purpose to kill there formed, and taken into another county where the murder is consummated, either county, under section 1580, R. S. 1881, has jurisdiction to punish the crime. Such statute is constitutional.</p> <p>Same. — Proof of Conspiracy by Circumstantial Evidence. — A conspiracy m ay be proved by circumstantial evidence alone.</p> <p>Same. — Conviction on Testimony of Accomplice. — A conviction of murder in the first degree will be sustained upon the testimony of an accomplice, where it is corroborated.</p>

<p>Swamp Lands. — Act of Congress 1850 a Present Grant. — The act of Congress of September 28th, 1850, relating to swamp lands, was a present grant, subject to identification of the special parcels coming within the description.</p> <p>Same. — Beaver Lake Lands. — Selection and Identification. — The selection by the State, confirmed by the act of Congress of January 14th, 1873, releasing to the State the lands known as the bed of Beaver lake, furnished the identification and perfected the title of the State to those lands, and the title thus confirmed related back to the date of the grant.</p> <p>Same. — Authority of Officers to Sell State’s Lands. — Ratification.—Public officers have no authority to dispose of the State’s lands except such as is conferred by positive statute, and sales without such authority are void, unless ratified.</p> <p>Same.— Unswroeyed Lands not Subject to Sale. — Neither under the act of the Legislature of 1851 (Acts 1851, p. 110), nor under the act of 1852 (1 G. & H. 597; 1 R. S. 1876, p. 952), by which the former was repealed, could the officers of the State sell swamp lands until they had been surveyed and platted.</p> <p>Same.— Grantee of Lands Bordering on Lake Took Thereby no Title to Latter.— The conveyance by the State in 1853 of the surveyed tracts of swamp lands bordering on and surrounding the unsurveyed lands constituting the bed of Beaver lake carried no title or interest in the latter to the grantee, and no constructive possession thereof.</p> <p>Same. — Estoppel of State. — The acceptance by the State of- a conveyance to a part of the lands constituting the bed of such lake from one who, . claiming to own such bed as riparian proprietor, by virtue merely of patents from the State conveying the lands bordering thereon, had made a private plat of the same, and ah act of the Legislature providing for the sale of the lands so accepted, do not estop the State to assert title to the remainder of the lal^e bed.</p> <p>Same. — State not Estopped, by Collecting Taxes on its Lands. — Unauthorized acts of ministerial officers, in assessing taxes upon such lands and collecting the amount from those claiming them, will not estop the State to assert its title, even though the sums collected have been appropriated to the public use.</p> <p>Same. — Standing by and Allowing Improvements. — Notice of Title. — The State can not be estopped from asserting title to its lands by standing by and permitting improvements to be made thereon, where its title is equally well known to, or equally open to the notice of, both parties.</p> <p>Same. — Adverse Possession. — Lands Covered by Water. — Statute of Limitations. —Possession without color of title is limited to the particular land over which the claimant exercises palpable acts of ownership. A naked assertion of title to the bed of a lake, almost wholly covered by water, is not sufficient to put the statute of limitations in operation.</p> <p>Same. — Action, by State to Recover Land. — Defendant May File Cross Complaint. —Although the State can not be sued, yet, when it goes into the courts to recover property, it goes as any other suitor, and the defendant is entitled to file a cross complaint and have the title litigated and quieted.</p>

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

<p>Telegraph Company. — Statutory Penalty. — Forwarded Message. — It is only the sender of a message who is entitled to recover from a-telegraph company the penalty provided by section 4176, R. S. 1881, for failing to transmit. One who directs his clerk to forward to him while absent from home an expected message from a third person, is not a sender within the meaning of such section.</p> <p>Same. — Complaint.—A complaint to recover a statutory penalty must aver facts which bring the case within the letter and the spirit of the statute.</p>

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

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

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

<p>Contract.— Specific Performance.— Agreement to Convey in Consideration of Support. — The specific performance of an agreement to convey land, in consideration of care and support to be furnished the owner during his life, will not be decreed.</p> <p>Conveyance.— Undue Influence. — Burden of Proof.— Contract. — A conveyance, obtained by entreaty, importunity and persuasion from one who is aged and infirm, mentally and physically prostrated, and in a state of dependence upon the grantee, who has no claim on him except his agreement to convey in consideration of support during life, will not be upheld. The burden is on .the grantee to show that it was made freely and voluntarily.</p> <p>Trial. — Cases of Equitable Jririsdiction. — Submission to Jury. — Harmless Error. — Where, in a case of equitable jurisdiction, the issues are submitted to the court, but a jury is called to inform the court as to the facts merely, and they return a general verdict which the court, without objection, treats as advisory and makes its own finding, there is no available error.</p> <p>Practice. — Motion for New Trial Before Finding. — A motion for a new trial, made before the court makes its finding, presents no question.</p>

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

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

<p>County. — Defective Bridge. — Injury Caused by Frightened Team. — Negligence,* —A county is not liable for an injury sustained by one, before entering-upon a bridge, by a team becoming frightened at its defective condition,, although it has been out of repair so long as to charge the county with, notice.</p>

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

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

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

<p>Eailboad. — Public Aid. — County Commissioners. — Tax Levy, Petition far.— Appeal. — Mandamus.—Election of Remedies. —A petition to obtain the levy of a tax, in pursuance of an appropriation voted in aid of a railroad, may be first presented to the board of commissioners, and in the event of an adverse decision, an appeal will lie; but if the board should refuse to act, mandamus is the appropriate remedy.</p> <p>•Same. — Delay of Courts. — The delay of the board of commissioners, in acting upon the petition at the time required by law, will not prejudice the rights of the petitioner.</p> <p>Change of Venue. — Presumption as to Begulanty. — Practice.—If the record does not affirmatively show that a change of venue was improperly .granted, it will be presumed that the cause was rightfully in the court where tire trial took place, and mere recitals in a motion can not prevail against this presumption.</p> <p>County Commissioners. — Conclusiveness of Decisions. — Collateral Attack.— The decision of the board of commissioners is conclusive upon all questions essential to the validity of the judgment pronounced by it, and they can not again be litigated except in case of a direct attack upon the judgment.</p> <p>Statute. — Public Policy. — Where a valid statute expressly authorizes an act to be done, the courts can not consider its policy.</p>

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

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

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

<p>‘Ckiminai, Law. — Appeal. -Bill of Exceptions. — Practice.—The power of the circuit court to extend the time of making out and presenting a bill of exceptions, in a criminal 'cause, is not exhausted until judgment is rendered.</p> <p>Same. — Where a motion for a new trial in a criminal cause is overruled, and sixty days given in which to make out and present a bill of exceptions and the cause continued, and no bill of exceptions is made out during said period, but at the following term at the time judgment is rendered, the court gives the defendant thirty days’ time in which to prepare and file a bill of exceptions, within which time a bill is filed, such bill of exceptions is properly in the record on appeal.</p> <p>Same. — Keeping Gaming House. — Evidence.—For evidence held insufficient to sustain the charge of keeping a gaming house, see opinion.</p>

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

<p>Pleading. — Complaint.—Averments as to Abbreviations. — In declaring upon a written instrument containing abbreviated and incomplete terms, extrinsic averments may be used in the complaint to make that intelligible which is of itself unintelligible.</p> <p>Evidence. — Abbreviations, etc., Explanation of. — Intention.—Evidence tending to explain the sense in which the parties were in the habit of using particular abbreviations and characters,' and to show their conventional meaning, is admissible, but not to show the intention of a party in making use of them.</p>

<p>Criminal Law. — Indictment. — Motion to Quash.— Practice. — A motion to quash an indictment as an entirety should be overruled, if any one of the counts therein is sufficient, even though the other counts are defective.</p> <p>Same. — Homicide.—Self-Defence.—Instruction.—Where the principal defence to an indictment for homicide is self-defence, an instruction that “ past threats or conduct of the deceased against the defendant, however violent, will not excuse homicide without a sufficient present demonstration, on the part of the deceased, to authorize the belief on the part of the defendant that the deadly purpose then existed on the part of the deceased to do the defendant great bodily harm, and the fear that it will be executed. The danger must be present, apparent and imminent from the defendant’s standpoint at the time; and the killing must be done under a well founded belief that it was absolutely necessary for the defendant to kill the deceased to save himself from death, or to save himself from great bodily harm,” is erroneous.</p> <p>Evidence.— Order of Proof. — Discretion.—The admission of evidence in rebuttal which is only proper in chief is not available error.</p>

<p>Fraudulent Conveyance. — Husband and Wife. — Debtor and Credilm'.— Consideration. — A conveyance by one person to the wife of another, will not be set aside as fraudulent against creditors of the latter and subjected to their claims, where he pays no part of the consideration although the purpose of all the parties was to put the property beyond the reach of such creditors.</p> <p>Same. — Insurable Interest. — Payment.—Although property was conveyed to the wife to defraud her husband’s creditors, yet, if it is insured for the wife’s benefit, she is entitled to the avails in case of loss, and payment by her for the property out of the insurance money does not constitute payment by the husband.</p>

<p>Practice. — Pleading.—Carrying Demurrer Back. — Where a defendant’s answer is held good on demurrer, he can not urge on appeal that the court erred in not carrying the demurrer back to the paragraph of the complaint to which the answer is addressed.</p> <p>Vendor’s Lien. — Not Lost by Acceptance of Void Securities. — A vendor’s lien is not lost by the acceptance of securities that have no legal validity.</p>

<p>Conversion. — Pleading.—Answer.—Argumentative Denial. — Demurrer.—To a complaint for conversion, an answer alleging that the taking was with the plaintiff’s consent and in pursuance of an agreement bo to do, specifically set out, amounts to an argumentative denial, but, if otherwise good, it is not for that reason insufficient to withstand a demurrer.</p> <p>Supreme Court.— Weight of Evidence. — The Supreme Court will not reverse a judgment where it appears that the merits of the cause have been fairly tried and determined in the court below, nor on the weight •of the evidence.</p>

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

<p>Promissory Hote. — Illegal Consideration. — A promissory note, given in consideration of an agreement by the payee to use his influence to secure the acquittal of one prosecuted for a felony, can not be enforced.</p> <p>Same. — Consideration Part Legal and Part Illegal. — If the consideration of a promissory note is in part legal and in part illegal, and is indivisible, there can be no recovery upon such note.</p> <p>Instructions to Jury. — Harmless Error. — Sxipreme Court. — Practice.—An erroneous instruction, if harmless to the appellant, is not available for the reversal of tire judgment.</p> <p>•Same. — Trial Court not Required to Remedy Defective Instructions Asked. — The trial court is not bound to remedy the defects in an instruction asked by a party, and unless he is entitled to have it given in terms as prayed, the court may refuse it.</p>

<p>Contract. — Sale.—Bailment.—Character of Transaction. — Receipt.—Evidence Aliunde. — Where a receipt for personal property delivered does not disclose whether the transaction is a sale or a bailment, extrinsic evidence may be resorted to.</p> <p>Same. — Ambiguous Contract. — Particular Business.— Usage.— Presumption.— Evidence. — Where a contract concerning a particular business is ambiguous, it will be presumed that it was made with reference to the ordinary course of such business, and evidence showing such course is admissible.</p> <p>■Same. — Delivery of Grain.— When Deemed in Pursuance of Sale and not of Bailment. — Where grain is received by a dealer under a contract, express ■or implied, to pay the market price therefor on the demand of the owner, but with no understanding that the latter shall have the l-ight to demand either his own or other grain in return, and the grain so received is mixed with other of like quality in bins,from which shipments are made daily, the transaction is a sale, and not a bailment.</p> <p>.Same. — Right to Demand Redelivery. — Election.—It is only where the owner retains the right from the beginning to elect whether he will demand the redelivery of his property or other of like quality and grade, that the contract will be construed to be one of bailment. If he surrenders to the dealer the right of election, it will be considered a sale, with an option on the part of the latter to pay either in money or property as stipulated.</p>

<p>Wabash and Erie Canal. — Sale of. — Purchaser Took Subject to Easements of Public. — The sale, in 1876, of the Wabash and Erie canal and its appurtenances, under a decree of foreclosure against the State, carried to the purchaser the fee simple therein, subject to the burden of any easement of the public of which he was bound to take notice.</p> <p>Same. — Highway.— Bridge.— Notice of Easement. — The continuous use by the public, for nearly forty years, as a part of a highway, of a bridge constructed by the State, having a wagon way for public travel and a towing path for navigators of the canal, was possession and notice of the easement.</p> <p>Same. — Bight of County to Use Material of Old Bridge in Bebuilding.— The purchaser of the canal and appurtenances acquired no interest in the part of the bridge used by the public as a part of the highway but only in the part used for canal purposes, and, the bridge having been washed away subsequent to the sale, the county in which it was situate has the right to rebuild it upon its former location and to use the stone in the piers and abutments of the old bridge for that purpose.</p>

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

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

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

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

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

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