Volume 107 — Indiana Reports

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

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

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

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

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

<p>'Change oe Venue.—Repeal of Statute.—So much of the act of March 10th; 1873 (section 414, R. S. 1881), relating to changes of venue, as applied to criminal cases, was impliedly repealed by sections 1778 and 1779, R. S. 1881.</p> <p>Same.—Allowance to Counsel for Defence and Prosecution.—Liability of County in which Cause Originated.—The court to which a criminal cause is taken on change of venue may, in its discretion, appoint counsel both to defend and to assist in the prosecution of such cause, and make allowances therefor out of the county treasury, which, under sections 1778 and 1779, may be collected from the county in which the cause originated.</p> <p>Same. — Conclusiveness of Allowances. — The allowances made under such sections, as to their conclusiveness, stand upon the same footing as those made under the sections of R. S. 1843, construed in Board, ele., v. Summerfield, 36 Ind. 543.</p>

<p>School Township.—Contracts of Trustee.—Notice.-—In dealing with the trustee of a school township, all persons are bound to take notice of his official and fiduciary character, and to know that he can only bind his township by contracts which are shown to be authorized by law.</p> <p>Same.—School Supplies.—Complaint on Contract for.—Necessary Averments.— A complaint against a school township, on a contract for school supplies, to be good must allege that éuch supplies are necessary and suitable for the use of the public schools of the township, and that they have been delivered to and accepted by such township.</p>

<p>Turnpike Company.— Written Contract.-—Assessments on Stock—Statute of Limitations.—Pleading.—Where one signs the articles of association of a turnpike company, formed under section 3624, el seq., agreeing therein to take and pay for a certain amount of stock, it is a written contract, the statute entering into and becoming a part of it, and an answer of the six-years’ statute of limitations, to a complaint to recover an assessment on the stock, is bad.</p> <p>Same.—May Use Line Abandoned by Another Company.—Bepairs.—A turnpike company, organized to construct a road, may take the line abandoned by another company, and to keep its road in repair it may call in stock subscriptions.</p> <p>Pleading.—Single Answer to Several Paragraphs of Complaint.—Practice.— Where a single answer is filed to two paragraphs of complaint, it is net good on demurrer unless it is sufficient as to both.</p>

<p>Negligence.— Railroad.—Complaint for Injury at Crossing.— Wilfulness.— Contributory Negligence.—A complaint against a railroad company to recover damages for an injury received at a crossing, and alleged to have been “ caused by the reckless, negligent and wilful conduct of the defendant’s employees” in propelling a locomotive backwards over the crossing, the track being hidden from view by intervening buildings, at a dangerous rate of speed, without giving warning by bell or whistle, is not good as charging a wilful injury, and, there being no averment negativing contributory negligence, it is bad on demurrer.</p>

<p>Criminal Law.—Decedent’s Estate a Person.—The estate oí a decedent is a person in legal contemplation.</p> <p>Same.—-Forging Name of Deceased Person.—One who forges the name of a deceased person to an instrument purporting to be a promissory note, for the purpose'of defrauding'his estate, is guilty of the crime of forgery.</p> <p>Same.—Plea in Abatement.— Omissions.—Omissions or defects in a plea in abatement can not be supplied or cured by intendment.</p> <p>Same.—Trial Without Plea Ph-roneous.—Practice.—The trial of a criminal case without a plea is erroneous, but the error must be presented by a motion for a new trial, and not by the assignment of errors in the Supreme Court. • •</p> <p>Same.—Information.—Mistake.—Motion in Arrest.—Where the whole information, taken together, shows that the charge of the offence is preferred by the prosecuting attorney, the use, by mistake, of the word “affiant” in the body of the indictment instead of the words “ prosecuting attorney,” is not a defect available on motion in arrest of judgment. RibIíACK, J., dissents.</p>

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

<p>•Intoxicating Liquor.—Sale to Minor.—Due Care.—To relieve one from the penalty provided by the statute for selling intoxicating liquor to a. minor, it is not enough that the seller believed in good faith from appearances that the minor was of legal age, but it must also be shown that the former used due care to ascertain his age.</p> <p>Same.—Sufficiency of Evidence.—For evidence held sufficient to sustain a conviction for selling intoxicating liquor to a minor, without exercising-proper caution, notwithstanding the latter was apparently of legal age, see opinion.</p> <p>Criminal Law.—Jury.—Reading Statutes While Considering Verdict.—Semble, that it is not error, in a criminal case, to permit the jury .'to take to their room an annotated copy of the Devised Statutes, and to read therefrom, while deliberating on their verdict, the section of the statute defining the offence for which the defendant is prosecuted, where the annotations thereto consist merely of the names of decided cases.</p>

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

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

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

<p>.Municipal Cobporation.—Defective Sewers.—Contributory Negligence.—Case Disapproved.—In actions against municipal corporations for injuries resulting from the negligent construction or maintenance of sewers, the plaintiff must show that he was free from contributory negligence. Roll v. City of Indianapolis, 52 Ind. 54V, disapproved.</p> <p>Same.— Use of Ordinary Care and Skill.—Notice of Defects.—Pleading.—Where a municipal corporation constructs a sewer, it is bound to use ordinary care and skill, and it is not necessary that it should be averred in a complaint for injuries resulting from the defective construction thereof, that the corporate authorities had notice of defects caused by want of skill or care in doing the work.</p> <p>.'Same.—Coiporate Authorities Must Keep Sewer in Repair.-—Implied Notice of Defect.—Notwithstanding the fact that a sewer may haye been constructed with care and skill, a municipal corporation is liable for injuries caused by a negligent failure to keep it in repair; and where it is suffered to remain out of repair for such length of time as that it was the duty of the corporate authorities to take notice of its condition, the law will charge the corporate officers with notice.</p> <p>.Same.— General Authority to Construct Sewers.—The authority to construct sewers is general, and resides in all municipal corporations unless expressly denied them by the Legislature.</p> <p>Same.—-Use of Private Property.—Liability for Negligence in Constructing and Maintaining Sewer. — Where a municipal corporation makes use of private property for the purpose of constructing a sewer, and in order to obtain the privilege of using the property submits to the demand of the owner to construct the sewer according to plans and specifications prepared by him, it is liable for negligence in the construction and maintenance of such sewer.</p> <p>Same.—Outlet for Sewer.—The outlet is a necessary part of a Sewer, and whenever a municipal corporation, by its system of sewerage, renders an outlet necessary, it must provide one, and it must be constructed with ordinary care and skill.</p> <p>'Same.—Inability to Citizen who Taps Sewer, for Negligent Construction or Maintenance Thereof.—A municipal corporation is liable to one who, for his private benefit, connects his premises with a sewer constructed by such corporation, for injuries resulting from the negligent construction or maintenance thereof.</p> <p>"Witness.—Bxpert Testimony, Competency of.—-Practice.—It is for the trial court to determine whether or not a witness is qualified to testify as an •expert, and the question of his competency is so exclusively for the court that its action will not be reviewed, except where there "is-ho evidence tending to prove the qualification of the witness, or there is a palpable abuse of discretion.</p> <p>Same.—Preliminary Cross-Examination of Expert.—If the evidence satisfies the trial court of the qualification of the witness, it is not bound to permit a preliminary cross-examination on the question of competency, though it has a right to do so, which right should be-liberally exercised.</p> <p>Same.— Qualification of Expert.—The study of a profession or business, without practical experience, will qualify, a witness- as an expert.</p> <p>Evidence.—Negligence.—In an action against a city to-recover for injuries caused by a defective sewer, constructed by the corporate authorities, evidence of a break in the sewer about 100 feet distant from the point where the break occurred which caused the injury for-which recovery was sought, was competent for the purpose of charging the city with knowledge, as well as for the purpose of showing the defective character of the work and materials employed, and that by reason of time and use the sewer had got out of repair.'</p> <p>Same.—In such case it is not error to permit the plaintiff to give in evidence the ordinance, advertisements, bids and contracts relating to the building of the sewer, as tending to show that the same was constructed by the city.</p> <p>Same.— Validity of Ordinance Providing for Construction of Sewer.—In such case it is not necessary for the plaintiff to prove that the ordinance directing the construction of the sewer was regularly adopted. It is enough to show that the city had assumed to adopt it, and under it had constructed the sewer.</p>

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

<p>Contract.—Receipt for Money Deposited.—Statute of Limitations.—An instrument reading, “ Beceived of Joseph S. Long sixteen hundred dollars, on-deposit, in National currency. Straus Bros.,” is a written contract for the payment of money, and the six years’ statute of limitations does not apply to an action thereon.</p>

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

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

<p>Decedents’ Estates.— Widow’s Interest in Beal Estate.—Parties to Action.— Practice.—Under our present law, the court can in no case, for the purpose of paying debts against the estate of a decedent, order the sale of the portion of the real estate which the widow owns by reason of her marital rights, whether she is made a party to the proceeding or not.</p> <p>Same.—Tenancy by Entireties.— Widow’s Interest Prior to Statute of 1852.— Judgment.—Conclusiveness of.—Prior to the taking effect of the statute of 1852, the widow took only a dower interest in the real estate of her husband, and the probate court had power to order the entire fee sold for the payment of debts; and when the widow claimed to be the absolute owner of real estate by reason of a tenancy by entireties, and being made a party to a petition by her husband’s administrator to sell such real estate, for the payment of the debts of his estate, failed to appear, and permitted such order to be made, she is bound by such proceedings, and. can not afterwards assert title.</p> <p>New Trial as oe Bight.— Waiver of Objection to.—Time of Granting.— Where, in an action for the recovery of real estate, a new trial is granted as a matter of right prior to the rendition of judgment, without exception or objection, and the parties proceed to try the case a second time,, the objection which might have been made to the granting of a new trial before judgment is waived.</p> <p>Statute oe Limitations.—Administrator’s Sale of Beal Estate.—Although an administrator’s deed to real estate is prematurely made, the title of the purchaser is protected by the five years’ statute of limitations, where the party injuriously affected is not under disability.</p> <p>Practice.—Instructions Asked Must be Signed.—There is no available error in the refusal of the court to give instructions asked, where the same are not signed by the party or his counsel.</p>

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

<p>©SEMINAL Law.—Right of Citizen to Pursue and Arrest Felon.—Murder.— Where a pickpocket is discovered plying his vocation in a crowd, a citizen has the right to arrest him upon fresh pursuit, without a warrant, and if the wrong-doer kills him while he is attempting to make the arrest, it is murder.</p> <p>Same.—Proof of Distinct Felony.—In such case, on the trial of the thief for murder, it is competent to prove, by either direct or circumstantial evidence, the recent commission of the robberies and the connection of the accused therewith, for the purpose of showing that the citizen was engaged in the performance of his duty when slain.</p> <p>Same.'—Instruction.—Speculative Doubt.—A speculative doubt as to the possibility of innocence is not such a doubt as requires an acquittal, and the jury may be so instructed.</p> <p>Same.—Instructions Considered Together.—Practice.—Where all the instructions, considered together, correctly state the law, the judgment will not be reversed because one may be defective.</p> <p>Same.—Repetition of Information Not Required.—Where the court instructs the jury as to what must be proved to constitute a felonious homicide, ■ it is not necessary to repeat such information in subsequent instructions.</p>

<p>Cbimihai, Law.— Indictment.— Grammatical Construction.—Where a pronoun is used in an indictment, there is no rule of legal or grammatical construction which requires that it shall relate to the last preceding' noun, for its antecedent. This is a matter which is governed by the-sense and meaning intended to be conveyed.</p> <p>Same.— Intoxicating Liquor.—Sale to Habitual Drunkard After Notice.—Evidence.—In a prosecution, under section 2093, R. S. 1881, for selling liquor-to a person in the habit of being intoxicated after notice given, where-there is no evidence showing that the person named in the affidavit and information was in the habit of being intoxicated, and where there is no evidence that the defendant, either in person or by agent, sold such-liquor, a conviction can not he sustained.</p>

<p>Criminal Law.—Instruction.—Slating Elements of Offence.—When it is undertaken to state in an instruction all of the elements of the offence necessary to a conviction, the instruction is bad if an essential element is omitted; but where an instruction, partially stating the necessary facts, does not charge that they alone, without reference to other facts and other instructions, will justify a conviction, it is not erroneous.</p> <p>Same.—Duty of Jury to Consider Instructions.—It is not'error to instruct the jury that if they have no well defined opinions or convictions as to what the law is relating to any matter at issue, they should give the instructions of the court a respectful consideration.</p> <p>Same.—Defendant’s Testimony.—Credibility and Weight.—Where the defendant testifies in his own behalf, an instruction that in weighing his testimony the jury should not overlook the fact that he is the defendant, and deeply interested in the result of the prosecution, and that his testimony must be consistent with all the other facts and circumstances in evidence, to have a controlling weight, is erroneous.</p>

<p>Moktgage.—Consideration.—Thejrqmise of one to pay a debt for which he is already liableas surety is not a sufficient consider-atíqnTro support a mortga^e;L<'ir •</p> <p>Same.—•Release of Groundless Claim.—Where a claim is without foundation,, a release will not constitute a valid consideration for a mortgage.</p>

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

<p>Mortgage.—Promissory Note.—Action to Procure Surrender and Cancellation.. —Chech.—Failure of Bank.—Liability for Loss.—B. employed 0. & N. to' negotiate a loan for him. They applied to D. & Co., who procured the-money from their principal, the Security Company, and deposited it in. hank. Shortly thereafter, B. executed his note and mortgage for th& ■■amount and delivered them to D. & Co., who left a check on the bank •with N. to be delivered to B. when he had obtained the release of prior ■encumbrances on his land, which the latter agreed to obtain at a certain date. B.-did not carry out his agreement at the time fixed, nor ■■subsequently, and ten days later, while the check was still in the hands of N., the bank failed.</p> <p>Held, that B. is not liable for the loss, and that he may maintain an action against the Security Company for the surrender and cancellation of the note and mortgage.</p>

<p>©badtage.—JRemonstrance.—Burden of Issue.—A land-owner, who remonstrates on the single ground that his land is assessed for too much, has the burden of the issue.</p>

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

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

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

<p>Criminal Law.—No Common Law Offences in this State.—There are no* common law offences in this State, and there can not be a conviction for any offence which is not defined by statute. Section 237, R. S. 1881.</p> <p>Same.—Indecent Liberties with Girl Under Twelve Years of Age.—Assault,.— Consent.—Indictable Offence.—Statute Construed.—One who merely takes indecent liberties with a girl under twelve years of age, with her consent, but upon her refusal to consent to sexual intercourse desists, is not, un- ' der existing statutes, guilty of an indictable offence, the girl having sufficient intelligence to understand the nature of his conduct. Sections 1909 and 1917, R. S. 1881, are construed.</p> <p>Elliott, X, dissents.</p>

<p>Co An Mines.—Miners, Lien.—Interest to Which Lien Attaches.—Lessor and Lessee.—Staiute Construed.—The lien which section 5471, R. S. 1881, imposes in favor of persons employed in and about coal mines, applies only to such interest or estate as the person operating the mine has therein. It does not bind the property of a lessor.</p>

<p>Divorce.—Interrogatories to Party not Proper.—Case Followed.—Interrogatories to the parties are not proper in an action for a divorce. Ban' v. Barr, 31 Ind. 240, followed.</p> <p>Same.—Alimony.—Discretion of Trial Gourt.—It is only where there is an • abuse of discretion that the Supreme Court will review the decision of the trial court as to the amount of alimony.</p>

<p>"Will.—Decedents’ Estates.— Widow’s Statutory Right to Five Hundred Dollars. —Relinquishment.—Election.—Cases Orilicised.—The claim of the widow ■ of a decedent to the five hundred dollars for which provision is made by section 2269, R. S. 1881, may be released and relinquished by her election to take under an inconsistent testamentary provision. Nelson v. Wilson, 61 Ind. 255, and Whiteman v. Swem, 71 Ind. 530, criticised.</p> <p>."Practice.—Jurisdiction.—Docketing Probate Cause as Civil Action Not Available Error.— The docketing and trial as an ordinary civil action of a matter which belongs to the probate jurisdiction of the circuit court, is merely an irregularity, and not an available error.</p>

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

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

<p>Pleading.—Construction of.—A pleading must proceed upon some single, definite theory, which must be determined from the general scope and character of the pleading.</p> <p>Pledge.—Contract.—Collateral Security.— Withdrawal on Reduction of Debt.— Transfer of Collaterals.—Where bonds and stocks are pledged as collateral: security, under a contract stipulating that in the event of the reduction of the indebtedness, the pledgeor should be entitled to select and withdraw from the securities so pledged an amount equal to the reduction, •one to whom the pledgeor has sold and transferred a part of such securities can maintain his right to them, as against the pledgee, where it is •shown that prior to such transfer the pledgeor had paid, or caused to be paid, on such indebtedness, a sum in excess of the value of the securities so transferred.</p> <p>'Same.—Consideration.—In such case, the pledgor can sell and transfer, either with or without consideration, the securities which he had the right under the contract to withdraw.</p> <p>'Same.— Wliut will Constitute Reductions of Indebtedness.—In such case, reductions of the indebtedness, effected in part by means of sales-of property . .mortgaged to secure the indebtedness, rents of real estate the possession ■of which had been voluntarily delivered to the pledgee, sales of .prop»erty on execution, etc., are reductions within the meaning of the contract.</p>

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

<p>Set-Oi?!’.—Action on Promissory Note.—Reply of Account as Set-Off to Set-Off Pleaded by Defendant.—One who has a note and an account against another, may sue upon the note, and reply the account as a set-off against an equal amount pleaded as a set-off by the defendant.</p> <p>Same.—Replied, Set-Off Need not be Held when Action Commenced.-—Where a set off has been pleaded by the defendant, the plaintiff may reply, by way-'of set-off to the defendant’s plea, any claim held by him at the-time such plea was filed. It is not necessary -that the claim replied should be held by the plaintiff at the time his action was commenced.-</p> <p>Pleading.—Construction.— Written Instruments.—Accounts.—Exhibits.— Uncertain Averments,—In construing pleadings, written instruments and accounts filed therewith as required by section 302, R. S. 1881, may be-looked to in aid of uncertain averments, and in many instances they are controlling.</p> <p>Instructions to Jury.—Making Part of Record Without Bill of Exceptions. —Practice.—In order that instructions may be a part of the record without a bill of exceptions, they must be filed as required by section 533, R. S. 1881, and tBe record must affirmatively show that they were so-filed.</p>

<p>Practice.'—Exclusion of Evidence.—Misconduct of Counsel in Argument.—Affidavit.—Bill of Exceptions.—Rulings of the trial court in excluding evidence, or in refusing to check the misconduct of counsel in argument, ■can not be brought into the record by affidavit. The proper mode is by a bill of exceptions.</p> <p>Argument oe Counsel.—Misconduct.— When Available for Reversal of Judgment.—It is only where the improper statements of counsel in argument .are of such, a material character as to probably influence the jury in returning a wrong verdict that they are available for the reversal of the judgment.</p> <p>Slander.—Charge of Fornication or Adultery.—It is slander to falsely charge a woman with fornication or adultery, whether in direct terms or by the use of words which impute the offence and are so understood by the hearers.</p> <p>Same. — Variance. — A variance in.the tense of the libellous words as charged in the complaint, and ¡is shown by the evidence, will not preclude a recovery.</p>

<p>Chattel Mortgage.— Recording.— Seniority.—Fraud.—Where a chattel1 mortgage is not recorded within ten days, as required by statute, but a new mortgage, duly recorded, is given in renewal, the latter will be-senior to an intervening recorded mortgage, executed by the mortgagor upon the same property for the purpose of defrauding the first mortgagee.</p> <p>Same.—Foreclosure of Fraudulent Mortgage.—Injunction.—A mortgagee of personal property, notwithstanding the mortgage debt is not due, and without regard to the solvency or insolvency of the mortgagor, may maintain a suit to enjoin the enforcement of a judgment of foreclosure-rendered upon a mortgage executed to defraud him.</p>

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

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

<p>Suretyship.—Contribution.-—Claim for Against Decedent’s Estate Triable by Jury.—A claim for contribution by a surety against the estate of a deceased co-surety is triable by jury.</p> <p>Same.—Security Held by One Surely Enures to Benefit of All.—Ti'ust.—Where one surety obtains a security, it enures at once to the benefit alike of himself and liis co-surety. He occupies the position of a trustee for his co-surety, and can not deal with the fund to the prejudice of the latter.</p> <p>Same.—Purchase at Judicial Sale hy One Surety of Principal’s Property.—Rights of Co-Surety.—Where one surety, having paid a judgment for which he and his co-surety are liable, sues out execution thereon and procures the sale of the principal’s property, which he purchases at comparatively nominal prices, and then sues his co-surety for contribution, the latter may show, in bar of the suit, that such property of the principal, at its fair value, was sufficient to satisfy the judgment.</p> <p>Pbactice.—Special Finding.—Judgment Non Obstante.—A judgment notwithstanding the general verdict will not be rendered on a special finding of facts which is vague and indefinite, and not so inconsistent with the general verdict as to control it.</p> <p>Same.—Presumptions.—All reasonable presumptions will be indulged in favor of the general verdict, while nothing will be presumed in aid of the special findings.</p>

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

<p>Review oe Judgment.—New Trial as of Bight.—Pleading.—Copy of Judgment.—A complaint to review a judgment for error in setting aside an order granting a new trial as of right, and reinstating the original judgment, should set out a copy of such original judgment.</p> <p>New Trial as oe Right.— When Not Proper.—Different Causes of Action. —Where a litigation proceeds to judgment on any substantive cause of action, in which a new trial as of right is not allowable, then, even though it embraces other causes in which a new trial as of right is allowable, a new trial as of right is not proper.</p>

<p>Reax. Estate, Action to Recover.—Plaintiff Must Succeed on Strength of His Own Title.—In an action to recover the possession of real estate the plaintiff must recover, if at all, on the strength of his own title.</p> <p>'Same.— Will.—Title.— Widow’s Bight to Possession.—A testator devised land to R. to have and hold and have full use and possession of during the natural life of the testator and his wife. R. was to have all the testator’s property at the death of the latter and his wife. He was to live on the farm with the testator and to comply with the will “ during the natural lifetime of myself and said wife.” Immediately following the devise to R. during the natural life of the testator and wife was the following provision : “ Eor and in consideration of the above said R. is to take,care of me and of my wife during our natural lifetime, and be at all expense every way in doctoring and funeral expenses.” The testator’s wife survives him.</p> <p>Held, that the devise to R. will not take effect, so as to vest in him a fee simple title, until the death of the widow.</p> <p>.Held, also, that neither R., nor any one claiming through him, can, by any right given in the will, maintain an action to oust the widow from the land, but that she is entitled to possession during her life.</p>

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

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

<p>Erom tlie Monroe Circuit Court.</p>

<p>Appeal.—Stay of Proceedings.—An appeal prayed for in term time, and perfected within the time given by the court, suspends all further proceedings under the judgment appealed from ; but an appeal in vacation, and without bond, does not so operate.</p> <p>Replevin.—Judgment for Return of Property.— Bond.—Where, in replevin ■ proceedings, the plaintiff is awarded a return of the property, it must be returned, without demand, in as good condition as when received by the defendant under the bond, and within a reasonable time after the order is made.</p> <p>Same.—Appeal.—Delay in Returning Property.—Action on Bond.—Mitigation of Damages.—Where, after an appeal to the Supreme Court by the defendant to replevin proceedings, against whom a return of the property is awarded, there is an implied understanding that no measures to enforce the penalty of the bond for a return will be taken until the appeal is disposed of, and no such steps are in fact taken until a few days béfore the final decision in the case, when the property is returned in good condition, the delay is not unreasonable, and in an action on the bond the return may be considered by the jury in mitigation of damages.</p> <p>Practice.'—Trial Without Issue.—Judgment by Confession.—Where, without objection, a party alleging affirmative matter in bis pleading goes to trial without requiring an issue to be formed upon such pleading, he can not afterwards ask judgment in his favor as by confession.</p>

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

<p>Practice.—Dismissal oj Action.—A plaintiff may dismiss his action at any time before the jury retire.</p> <p>Same.—Objections Must be Specific to be Available.—Objections, in order to be available, must be specifically made in the.trial court. Mere general objections are not available on appeal.</p> <p>Interrogatories to Jury.—Submission.—Practice.—The prayer for the submission of interrogatories to the jury is not a proper one unless the court is also asked to instruct the jury to answer them in the event that they return a general verdict.</p> <p>Same.—Trial Court May Revise, or Propound Interrogatories of its Own.—It is proper for the trial court to revise interrogatories submitted by the parties and to prepare and propound for itself interrogatories to the jury.</p> <p>Same.—Questions of Law Improper.—An interrogatory which asks the jury to decide a question of law is improper.</p> <p>Same.— Railroad.—Animals.— Fencing Track.—An interrogatory reading. “Could the defendant have lawfully fenced its track at the point” where animals entered upon it, is a question of law.</p>

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

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

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

<p>Review oe Judgment.—Election Between Remedies.—A party can not pros; ecute an appeal and a suit to review, but must elect between these remedies.</p> <p>Same.—Pendency of Appeal.—How Question as to Presented.— Practice.—A question of the pendency of an appeal can not be presented by a motion to dismiss the complaint to review. The proper method, where the fact that an appeal has been prosecuted is not apparent on the face of^the record, is by answer.</p> <p>Pleading.'—Reply.—Demurrer.—Certainty.—Where a demurrer to a reply is sufficient to indicate with reasonable certainty what paragraph of the answer the reply fails ro avoid, it presents the question of the sufficiency of the reply.</p> <p>Promissory Note.—Consideration.—Parol Evidence.—Advancement.—It is competent to show by parol the consideration of a promissory note, and where it is without consideration, or executed merely as evidence of an advancement by a father to a son, it can not be enforced.</p> <p>Same.—Pleading.— Will.—Where it is answered that the note sued on was executed as evidence of an advancement, a reply that by the terms of the will of the payee such note was. not intended as an advancement, is bad.</p>

<p>County Commissioners.—Pleading.—Practice.—No formal pleadings are required in the presentation of a claim against a board of county commissioners. It is only necessary to file a written statement or account giving the nature of the claim, and so identifying it as to bar another proceeding upon it.</p> <p>Same.—Formal Pleadings.—But where the parties elect to file formal pleadings and to form issues of law upon the facts contained in any of such pleadings, the sufficiency of the facts thus pleaded may be ruled upon as in other cases.</p> <p>Statute.—Construction.—Legislative Intention.—In construing a statute the probable intention of the Legislature must be kept constantly in view.</p> <p>Same.— When Intention Governs Letter.—The legislative intention, as collected from an examination of a statute, will prevail over the literal import of particular terms, and the strict letter of the statute, when an adherence to the letter would lead to injustice, absurdity, or contradictory provisions.</p> <p>Same.— Uncertainty.—Legislative Histoiy.—Where a statute is of uncertain meaning, by reason of obscurity in its phraseology, a recurrence to the circumstances under which it was passed may be had to ascertain the probable intention of the Legislature in .enacting it, and to that end the legislative history of the statute may be inquired into.</p> <p>Same.—Contemporaneous Legislation.—In case of doubt or uncertainty, acts. in pari materia, passed either before or after and whether in force or not, and contemporaneous legislation, not precisely in pari materia, may be referred to in order to discern the intent of the Legislature in the use of particular terms, or in the enactment of particular provisions.</p> <p>Same.—History of Country.—Judicial Notice.—The history of a country, its topography and general condition are elements which’ enter into the. construction of the laws made to govern it, and are matters of which the.courts will take judicial notice.</p> <p>Same.—Fees and, Salaries.—■Public Sentiment.—Judicial Notice of.—It is an historical fact, of which the courts will take judicial notice, that when the Legislature of 1879 met, and for several years previously, there was a strong public sentiment in favor of the reduction of the fees and salaries of public officers, which constituted an important factor in the-preceding general election, and this circumstance may be considered in ascertaining the legislative intent- in the enactment of the statute of' that year on the subject of fees and salaries.</p> <p>.Same.—Act of 1870.—Compensation of County Auditor.— (fees Adhered, to.— Stare Decisis.—Under section 22 of the act of March 31st, 1879 (R. S. 1881, section 5907), concerning fees and salaries, a county auditor, in addition to his fixed salary, is. entitled to $125 per year for each one thousand inhabitants of his county over fifteen thousand and not more than twenty thousand, and $100 for each one thousand inhabitants in excess of twenty thousand, and not to $225 per year for each one thousand inhabitants in excess of twenty thousand. Edger v. Board, etc., 70- , Ind. 331,- and Parker v. Board, etc., 84 Ind. 340, are adhered to and the doctrine of stare decisis applied.</p>

<p>Pleading.—Exhibit.— Written Instrument.—Defect Cured by Finding.—'Practice.—Under section 362, E. S. 1881, a complaint is defective for want of the original, or a copy, of the written instrument on which it is founded; but, in the absence of a demurrer, the defect will be cured by the finding of the court.</p> <p>Same.—Sufficiency of Complaint as to Part of Demand.—Demurrer.—Where a complaint is sufficient as to a part of the demand, it will withstand a demurrer which questions it as a whole.</p> <p>Same.—Common Schools.—Teacher.—Contract.—-Motion in Arrest.—Assignment of Eror.—A complaint to recover on a contract for. teaching in the public schools, which avers that the plaintiff “ performed all and singular her duties according to said contract,” is not bad on a motion in arrest of judgment nor on an assignment of error in the Supreme Court, because it fails to allege specifically performance of a duty imposed by law.</p> <p>Common Schools.—Report Required of Teacher at End of Term.—Contract.— Wages.—When persons contract with township trustees to teach public schools, the statute (section 4449, E. S. 1881), which requires them at the expiration of their terms to make a report to the trustees upon certain things, enters into and becomes a part of the contract, and until such report is made they are entitled to receive only seventy-five per centum of their agreed wages.</p> <p>Same.—Compliance with Condition.—Burden of Proof.—Where, by the terms-of the contract, the making of the required report is made a condition precedent to the payment of any wages, the burden is on the teacher, in an action on the contract, to show compliance with the condition, or a waiver by the trustee of so much as relates to seventy-five per centum, to entitle him to a. judgment.</p>

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

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

<p>From the Cas.s Circuit Court.</p>

<p>Hriminaij Law.—Murder.—Evidence.—For evidence considered and held sufficient to sustain a conviction for murder in the first degree, see opinion.</p> <p>Same.— Weight and Sufficiency of Evidence.—Supreme Court.—Practice.—Where the evidence tends to support the verdict on every material point, the Supreme Court will not reverse .the judgment merely on the weight or sufficiency of the evidence.</p>

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

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

<p>Deed.—Consideration. — Parol Evidence of. — Agreement of Grantee to Pay Encumbrance.—Where the consideration of a deed is stated in general terms, the true consideration may be shown by parol, and for this purpose it may be shown that the grantee verbally agreed, as a part of the consideration, to pay an existing encumbrance.</p>

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

<p>Pleading.—Answer.—Demurrer.—An answer must respond to the entire complaint, or to so much as it purports to answer, or it will be bad on demurrer for the want of facts.</p> <p>11 USB AND and Wiee.—Executory Contracts of Wife.—Beal Estate.—Under sections 5117 and 5119, R. S. 1881, a married woman can not convey or mortgage her real estate, nor enter into any executory contract to do so, unless her husband joins therein, nor can she enter into any contract of suretyship; but, except as thus prohibited, she has the same power to make executory contracts, and is as much bound thereby, as if she were unmarried.</p> <p>Same.—Mortgage.—Foreclosure.—Consideration.—Complaint.—Wli ere it does not appear from the complaint to foreclose a mortgage against a husband and wife, that the mortgaged real estate is the separate property of the wife, or that she is the surety of her husband, such complaint is good without an averment that,she received the consideration, ora part of it, of the notes and mortgage, either in person or in benefit to her estate.</p> <p>Same,—Mortgage of Land, Held by Entireties.— Validity.—Suretyship.—A mortgage executed by a husband and wife on land held by them as tenants by the entirety, if it is for the benefit of the common property, or to secure the individual debt of the wife, is valid and binding-on both. It is only where it is given to secure the husband’s debt—the wife being prohibited from entering into a contract of suretyship by section 5119— that it is void.</p>

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

<p>Husband and Wive.—Divorce.—Alimony.—Previous Settlement of Property Upon Wife.—Revocation.—Evidence.—Where a husband has settled property upon his wife, and she subsequently applies for a divorce on the ground of his misconduct, but does not insist on alimony, he is not entitled to show the value of the property and the consideration of the settlement, nor, in the event a divorce is granted his wife, can he obtain a revocation.</p>

<p>City.—Streets and Alleys.— Change of Established Grade.—Failure to Assess and Tender Damages.—Recovery from City.—Under section 3073, R. S. 1881, a city can not change the grade of a street or alley, which has once been regularly established, without first having the damages which will result to adjacent property-owners assessed and tendered, and where it fails to do this, an action may be maintained against it for the damages.</p> <p>Evidence.—Title to Real Estate.—Deed.—Where title by deed is relied on, a chain of title must be traced back to the ultimate source of title or to a grantor in possession under a claim of title at the time he executed his deed.</p> <p>Same.—Idem Sonans.—Presumption.—-The names Wortman and Wm'kman are not idem sonans, and the court will not assume, in the absence of proof, that they refer to the same person.</p> <p>Pleading.—General Denial.—Evidence.-—An answer in general denial puts the plaintiff to proof of all the material allegations of his complaint.</p>

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

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

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

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

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

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

<p>Negligence.—Complaint.—A complaint to recover damages for the death of a person must show that the death resulted from the negligent acts charged.</p> <p>'Same.—Widow.—Competency as Witness.—A widow is a competent witness for the plaintiff in an action by the administrator of her husband against a railroad company to recover damages for negligently causing his death. Sections 498 and 499, R. S. 1881, do not apply to such actions.</p> <p>¡Same.—Railroad.—Fraudulent Use of Pass Issued to Another.—Liability of Carrier.—One who fraudulently attempts to ride on a non-transferable pass issued to another person,, is not a passenger to whom the carrier owes a duty to carry safely, and he can not maintain an action for injuries caused by the carrier’s negligence.</p> <p>•Same.—Finding Pass on Person of Deceased Traveller.—Presumption.—Burden of Proof.—Where a non-transferable pass issued to another person is found in the pocket of one who is killed by the negligence of a railroad company, but there is no other evidence that the deceased had procured the pass fraudulently, or was attempting to travel on it, the burden is on the defendant, in an action for damages, to overcome the presumption that the deceased was a bona fide passenger.</p> <p>Same.—Conflict of Presumptions.—Where the facts of a case are consistent with both honesty and dishonesty, the courts will adopt the construction which is in favor of honesty and good faith.</p> <p>Same.—Presumption that One is a Lawful Passenger.—Conductor’s Check.— Where one is carried upon a passenger train for many hours, and the conductor of the train has given him a check, which is found upon his person after he has been killed by the carrier’s negligence, it will be presumed, in the absence of countervailing evidence, that he was lawfully upon the train as a passenger.</p> <p>Same.—Defective Bridge.—Burden of Proof.—Where a passenger, rightfully on a train, is injured by the breaking down of a bridge, the presumption is that the carrier was guilty of negligence, and the onus is upon it to prove the contrary.</p> <p>Same.—Bridge Weakened by Flood.—Extent of Carrier’s Liability .--Where a bridge is weakened by a sudden and unprecedented Hood, and there is no time or opportunity for inspecting it, the railroad company is not responsible for an injury resulting from its giving way beneath a train run with proper care and skill. Aliter, if its unsafe condition may reasonably be discovered in time to avoid danger.</p> <p>Same.—Sufficient to Prove Substance of Issue.—In actions against carriers to recover for injuries resulting from negligence, it is sufficient to prove the substance of the issue.</p> <p>Evidence.—Preponderance.—Reasonable Probability of Truth.—Duty of Jury. —It is the duty of the jury, in a civil case, to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth.</p> <p>Pbactice.—Exclusion of Evidence.—Question as to, How Presented.—To present a question upon the exclusion of evidence, the particular evidence excluded must be specified with reasonable certainty in the motion for a new trial.</p> <p>Same.—Harmless Error.—It is only a material error which will authorize the reversal of a judgment.</p> <p>Intebbogatobies to Jijby.—Answer When there is no Evidence.—If there is no evidence upon a point covered by a special interrogatory propounded to the jury, they may so answer.</p> <p>Same.—-Motion to Make Specific.— Venire de Novo.—The truth or falsity of answers to interrogatories is not presented by a motion to compel the' jury to make them more specific, nor by a motion for a venire de novo.</p> <p>Pleading.—Scope and Tenor.— The character of a pleading must be-determined from its general scope and tenor.</p>

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

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

<p>Supreme Court.— What Errors Not Available.—Practice.—Questions not presented to the trial court can not be made available on appeal.</p> <p>¡Same.—Sufficiency of Evidence.—Where there is evidence sustaining the finding of the court, it will not he disturbed.</p>

<p>.Negligence.—Towns and Oilies.—Permitting Objects Calculated to Frighten Horses to JRemain on Street.—Towns and cities, in the absence of contributory negligence, are liable for injuries resulting from the fright of horses, of ordinary gentleness, at objects naturally calculated to frighten them, and which the corporation has negligently placed, or permitted to be placed, and to remain upon the street.</p> <p>■ Same.—Complaint.—Demurrer.—Motion to Make Specific.—Practice.—Where the averments in the complaint in regard to negligence are not sufficiently specific, the objection must be reached by motion to make more specific, and not by demurrer for want of facts.</p> <p>Same.—A general averment that the injury complained of was not caused’ by any negligence on the part of the plaintiff, but was caused wholly by the negligence of the defendant, a town, in permitting a person to, carry on the business of making candy on the street, makes the complaint good as against a demurrer for want of facts.</p> <p>Instructions to Jury.— Will be Considered as a Whole.—Revei'sul of Judgment.—-If the instructions, considered as a whole, put the case fairly before the jury, the judgment will not be reversed because one, taken, alone, may not be sufficiently full.</p>

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

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

<p>Pleading.—Practice.—Complaint.—Demurrer.—A demurrer which is addressed to a complaint consisting of more than one paragraph, as am entirety, will he overruled if one paragraph be good.</p> <p>Same.—Misjoinder of Parlies Not Came for Demurrer.—Misjoinder of parties is not a cause for demurrer.</p> <p>Special Finding.— When will Control General Verdict.—It is only where-the special findings of facts, when construed together, are irreconcilably inconsistent with the general verdict, that the former will control.</p> <p>Same.—Presumptions.—All reasonable presumptions will he indulged in favor of the general verdict, hut nothing will he presumed in aid of the-special findings.</p> <p>Evidence.—Record of Justice of Peace.—The record of a justice of the peace is" competent evidence of the proceedings liad in a suit before him.</p> <p>Contract.—Assumption of Debts of Another.—Action by Creditor.—A creditor may maintain an action against one who lias agreed, for a consideration., to assume and pay the debts of the debtor.</p>

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

<p>Taxes.—Refunding by County.—Purchaser at Sale.—Reduction of Lien at Suit of Owner.—Sections 5813 and 5814, B. S. 1881, which provide for the refunding of taxes by the county to theyowner of land, where the same have been paid in pursuance of a wrongful assessment, furnish no remedy to a purchaser at a tax sale whose lien is reduced at the suit of the land-owner.</p> <p>Same.—Remedy of Purchaser.—The purchaser at a tax sale, to make a case, under section 6487, B. S. 1881, for the refunding of taxes paid by him, must show either that the land was not subject to taxation, or that the taxes had been paid befox-e tlxe sale. "</p> <p>Same.—Complaint.—The remedy of the purchaser at a tax sale is wholly statutory, and unless lie can bring lxis complaint within some provision of tlxe statute it will be bad.</p>

<p>-•Supbeme Cotjbt.—Questions of Jurisdiction Over Subject-Matter.— When May be Raised.—The rule that the question of jurisdiction over the subject- . matter of the action can be raised at .any time, does not apply to a case ' in which the record is fully made up for a final adjudication, upon other questions, in an appellate court.</p> <p>■ Same.—Appeal from, Marian Superior Court.—Assignment of Error.—Upon an appeal to the Supreme Court from the superior court of Marion county, the only error which can.be assigned is, that the superior court at general term erred in affirming or reversing the judgment rendered at special term.</p> <p>■ Same.—Pleading.— Judgment.—New Trial.—Errors in rulings upon the pleadings and upon the judgment are not causes for a new trial, but, to be available on appeal, must be separately assigned.</p>

<p>City.—Hawkers and Peddlers.—Power to Restrain.—Under subdivision 23 of section 3106, R. S. 1881, which empowers cities incorporated under the general law “ to restrain hawking and peddling,” any mode of selling goods which does not fall within these terms can not be made unlawful by ordinance.</p> <p>Same.— Definition of Hawking and Peddling.—Any method of selling goods by outcry on the streets or public places in a city, or by attracting persons to purchase goods exposed for sale at such places by placards or signals, or by going from house to house selling or offering goods for sale at retail to individuals not dealers in such commodities, whether they be carried along for present delivery, or the sales be made for future delivery, constitutes’the person so selling a hawker or peddler within the meaning of the statute.</p> <p>Same.—Constitutional Law.—Ordinance.—Discrimination Against Citizens and Products of Ollier Communities.—A city ordinance, requiring a hawker or peddler, who is not a resident of the city, and who proposes to sell goods, wares or merchandise which are not grown or manufactured in the county in which such city is situated, to procure a license and pay a fee therefor before he may lawfully follow his calling in such city, discriminates against the citizens and products of other communities, and is unconstitutional and void.</p>

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

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

<p>From the Fulton Circ,uit Court.</p>

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

<p>Conversion.—Personal Property.—Sale.—Misapplication of Proceeds. — Liability.—Where one takes possession of and sells personal property at the direction of the owner, but fails to properly apply or misapplies the proceeds, there is no conversion of the property, and his liability must be predicated on the misapplication or conversion of the proceeds.</p> <p>Same.—Complaint.—Evidence.—Under a complaint charging a conversion of property merely, there can be no recovery for a misapplication or conversion of the proceeds of a sale of the property, and evidence of a conversion or misapplication of the proceeds is not admissible.</p> <p>Pleading-.—Forms of Action.—Recovery.—The code of this State consolidates all forms of action into one denominated a civil action, but that does not affect the remedy nor authorize a recovery beyond the case . made by the complaint.</p>

<p>Injunction.—Contempt.— Jurisdiction of Special Judge.—A special judge, appointed to hear and determine a particular case, has jurisdiction to punish a party for a violation of a restraining order previously granted by the regular judge.</p> <p>Same.—Interference with Status of Personal Properly.— When no Contempt.— Where, during the pendency of an action respecting the ownership and custody- of a piano, “ the defendant and all other persons” are enjoined from removing it from the defendant’s house, where it is situate, but the defendant, before the action is determined, and without reporting his intention to the court, rents his house and moves to another State, leaving the piano in the house, but making no arrangement for its storage, the plain tiff may remove the instrument to his own house for safe-keeping without being guilty of contempt.</p>

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

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

<p>Sheriff’s Sale.—Defective Description.—Statute of Limitations.—Where the purchaser at a sheriff’s sale takes possession of the land actually sold,, and he and his grantees remain in uninterrupted possession for ten years, the title so acquired can not be afterwards disturbed, even if the description was so defective as to make the sale void.</p> <p>Same.—Action for Possession.—Where, however, the purchaser takes possession of land entirely different from that sold by the sheriff, the ten years’ statute of limitations is not available to defeat an action by the owner for possession.</p>

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

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

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

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

<p>Decedents’ Estates.— Widow’s Interest—Sale of Whole Estate to Pay Husband’s Debts.— When Binding on Heirs.—While the widow’s interest can not be sold to pay the debts of her deceased husband, on the petition of the latter’s administrator, yet, if she be dead and her heirs are made parties to the petition, a sale of the whole, under an order of the court, will deprive them of title.</p> <p>Same.— Receipt by Heir of Pwrahase-Money.— Estoppel.—Where an heir, having full knowledge that the whole estate in the land has been sold on petition of the administrator, receives and retains the purchase-money remaining after the payment of debts, he can not avoid the sale. Elliott v. Brakes, 71 Ind. 412, distinguished.</p>

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

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

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

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

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

<p>Moktgage.—Promissory Notes—Assignment of Part of Series.—Priority of Lien.—The assignment of one or more of a series of notes executed by the same person, and secured by mortgage, operates as an assignment, pro lanto, of the mortgage. The notes so assigned stand as so many successive mortgages, and the holders have priority of lien in the order in which their respective demands become-due.</p> <p>Same.—Retention of Part of Series of Notes by Mortgagee.—Rights of Assignees Holding Other Notes.—The assignees of a part of a series of notes secured by mortgage are entitled to payment out of tile mortgage fund, in preference to the notes retained by the mortgagee, although the latter mature first; but this rule does not affect the rights of the assignees as between-themselves, and where they take their assignments at thesame time, their notes will have preference according to the date of their maturity.</p>

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

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

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