Volume 108 — Indiana Reports

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

<p>Municipal Corporation.—Sewers. — Insufficient Capacity. — Negligence.— Injury by Overflows.—Liability.—Where there is no negligence in devising the plan of a sewer or in constructing it, a municipal corporation is not liable for an injury to private property resulting from overflows caused by the insufficient capacity of the sewer, unless its inadequacy is such as in itself to constitute negligence.</p> <p>SAME.—Grading Street.—Consequential Injuries.—A municipal corporation is not liable for consequential injuries resulting from the grading of streets in a careful and skilful manner; but it is liable if it undertakes to collect the water in one channel and is negligent in devising the plan, performing the work, or providing an outlet where one is made necessary by its own act.</p> <p>Same. — Natural Watercourse, What is. — Bavines through which surface water occasionally flows are not natural watercourses within the meaning of the law. To constitute a natural watercourse there must be a bed and banks and evidences of a permanent stream of running water.</p> <p>Special Fiktoiug.— What Necessary to Authm-ize Judgment Upon Notwithstanding General Verdict.—Burden of Proof—Where there is a general verdict against the party having the burden of the issue, he is not entitled to a judgment on the special findings, unless all the facts essential to a recovery by him appear in the answers of the jury and are irreconcilable with the verdict. ' -</p>

<p>City.—Annexation of Unplatted Lands.—Petition' of Council to County Commissioners.—Sufficiency when Signed by Mayor Only.—Collateral Attach.—Where the petition to the board of county commissioners for the annexation of unplatted land to a city, upon its face, appears to be the petition of the mayor and common council, but is signed by the mayor only, it is sufficient under section 3196, B. S. 1881, at least as against a collateral attack, after the board has acted upon it as the petition of the council. Same.—Contiguity.—Consent of Land-Owner.—Presumption.—Where it is proposed to annex several tracts of land, under section 3196, all need not he contiguous to the city, but it is sufficient if they are contiguous to each other and one is contiguous to.the city; and in a collateral attack upon the annexation proceedings, it will be presumed that the lands, annexed were contiguous and unplatted, and that the owners would not consent to the annexation, unless the contrary is shown.</p> <p>Same.— Petition.—It is not necessary that the petition for annexation should state that the land-owners will not consent to an annexation by the common council of the city.</p> <p>Same.—Notice.— Notice of the presentation of the petition to the county commissioners is not insufficient because signed by the mayor only, and because it does not contain the name of one of the land-owners and particularly describe his land.</p> <p>Same.—Where there is notice in the manner provided by the statute, it is sufficient as against a collateral attack.</p> <p>Pleading.—Exhibit.—An exhibit which is not the foundation of a pleading can not be looked to in aid thereof.</p> <p>Peactice.—Remedies.—Appeal. — Collateral Attach.—Informalities and irregularities must be corrected by appeal. They can not be taken advantage of in a collateral attack.</p>

<p>Real Estate.—Lease by Testator. — Life-Estate Taken Subject to. — When Rents go to Reversioner and not to Life Tenant’s Administrator.-—Wliere one takes by devise a life-estate in land, subject to an existing lease which was made by the testator, and dies during the term of the lessee, before any rent becomes due, no part of the rent for the term is payable to his administrator, but the same goes to the reversioner.</p> <p>Same.—Bequest of Personal Property.—Accounts.—A bequest of all the testator’s personal property, including notes and accounts, does not entitle the administrator of the life tenant to receive rents which become due after the death of his decedent.</p> <p>Same.—Definition of Account.—The term account has no clearly defined legal meaning, but its'primary idea is some matter of debt, or a demand in the nature of a debt, arising out of contract, and does not include rents until they have accrued.</p> <p>Same.—Time of Payment of Rents.—Usage.—Where there is no time stipulated for the payment of rent for land which is leased for the term of one year, and no such usage as that an agreement to the contrary may be implied, payment is to be made at the end of the year.</p>

<p>Principal and Surety.— Negligence of Creditor in Collection of Debt.— Release of Surety.—Any affirmative act of the creditor, such as the release or fraudulent surrender of a collateral security, whereby an indemnity of which the surety might avail himself is lost to him, discharges the surety pro tanto ; but mere passive negligence of the creditor in the collection of his debit, either from the principal debtor or from collateral-securities held by him, does not discharge the surety.</p> <p>Practice.—Stinking Out Evidence.—Harmless Eror.—Where a party is not injured by the striking out of evidence, the ruling, even if erroneous, ' is not available for the reversal of a judgment.</p>

<p>Schools.—Regulation of Studies.—Discretionary Power of School Authm-ities.— Suspension of Pupil.—Mandamus to Compel Readmission.—A rule, prescribed by the superintendent of the free graded schools of a city, with the sanction of the trustees, that the pupils in the high school department shall at stated intervals employ a certain period of time in the study and practice of music, for which purpose they shall provide themselves with a prescribed boob, is an exercise of discretionary power conferred by law, and unless the regulation is shown to be unreasonable, or a satisfactory excuse for failing to comply therewith is given, mandamus will not lie to compel the school authorities to readmit a pupil who has been suspended for disobedience thereof.</p>

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

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

<p>Criminal Law.—Embezzlement by Public Officer.—Repeal of Statute.—Section 1943, R. S. 1881, defining the offence of embezzlement by public officers, was repealed by implication by the act of March 5,1883 (Acts 1883, p. 106), upon the same subject, without any saving clause.</p> <p>Same.—Saving Otase.—Where a law prescribing penalties has been repealed, there can be no further prosecutions under it, unless the repealing statute contains a saving clause authorizing the same.</p> <p>■Same.—County Treasurer.—Embezzlement.—Indictment.-—Statute of Limitations. —Under section 1943, R. S. 1881, a prosecution against a county treasurer for embezzlement of public funds should have been begun within two years after such officer failed, at the expiration of his term, to pay ■ over such funds to his successor, and the allegation of demands and refusals subsequent to that time would not take the indictment out of the operation of the statute.</p>

<p>Criminal Law.—Indictment.—Language of Statute.—Motion to Quash.—Air indictment which, in the language of the statute, charges an assault and battery with intent to commit rape, is sufficient on a motion to quash.</p> <p>SaAie.— Weight of Evidence.—A judgment will not he reversed on the mere weight of conflicting evidence.</p> <p>Same.— Witness.—Interpreter.—Sign Language.—Although one may not bean adept in the sign language, he may nevertheless be a competent interpreter in the examination of a deaf and dumb witness, and the accuracy of the interpretation is a question of fact for the decision of the-jury.</p> <p>Same.— Court May Appoint More than One Interpreter.—The-trial court may appoint as many interpreters as it deems necessary to get the facts before the court and jury.</p> <p>Same.—Manner of Examination Through Interpreter.—Discretion. — The manner in which examinations through interpreters shall be conducted is a-matter to be regulated by the trial court, in its discretion, and will not. be reviewed on appeal in the absence of a showing, of injury..</p> <p>Same.—Modest Deaf and Dumb Witness.— Obtaining Answer to Question in Private.—-Where a question is propounded to a deaf and dumb witness which so shocks her modesty that she flees from the court room to an adjoining room, whither she is followed by an interpreter, without direction from the court or objection by the defendant, who, in such seclusion, •obtains her answer to the question, and both returning immediately to the court room, the answer is given to the jury, without a repetition of the question to the witness, the irregularity is not available, in the absence of a showing of injury.</p> <p>Same.—New Trial.—Newly Discovered Evidence.—Diligence.—Where a new trial is asked on the ground of newly discovered evidence, it must be ■shown that the moving party could not, by the exercise of reasonable diligence, have discovered and produced such evidence at the trial; and the facts which show such diligence must be stated.</p> <p>.'Same.—Imposing Unauthorized Penalty.—Objection to Judgment.—An error of the trial court in imposing a penalty not assessed by the jury, nor authorized by the statute defining the offence of which the defendant is found guilty, is not available on appeal unless the question was raised in the trial court by an objection, in some form, to the judgment.</p>

<p>Deed.— Reformation.—• Voluntary Conveyance. —■ Valuable Consideration. —■ Equity will not intervene for tlie reformation of a deed which is purely voluntary.; but a deed, made by a father to a son in consideration of services rendered and of love and affection, may be reformed.</p> <p>Same.—Complaint for Reformation.—Showing of Consideration.—A complaint to reform a deed made to the plaintiff by liis father, which alleges that the consideration was love and affection and a specified sum of money, is sufficient on demurrer as showing a conveyance upon a valuable consideration.</p> <p>Same.—Mutual 'Mistake of Fact.—Description.—Family Settlement.—A father, desiring to divide his lands among his children, executed a deed to each, intending to convey a certain portion, and each took possession of the particular tract he was to receive by the arrangement. Afterwards the plaintiff', a son of the grantor, discovered that the description which had been inserted in his deed by the scrivener, with the knowledge of both, parties, did not, as they supposed it did, carry to him the tract intended to be conveyed, and of which he had taken possession, but covered a tract not owned by the father. Suit, after the death of the father, against another child, for a reformation of the deed.</p> <p>Held, that the mistake was one of fact, and mutual, and that the plaintiff is Entitled to a reformation.</p> <p>Pleading.—When Judgment wiU not be Reversed, for Want of Exhibit.-—Where-the merits of a cause have been fairly determined, the judgment will not be reversed because a copy of a written instrument ought to have been filed with the complaint.</p>

<p>Railroad.—Donation by Oity.—Resident Freeholders, How Enumerated.—Statute Construed.—In ascertaining the number of resident freeholders so as to determine numerically whether a petition for a city to make a donation in city bonds, to aid in the construction of a railroad, is signed by a majority, as required by the statute, R. S. 1881, section 3153, all persons resident within the city, and owning a freehold interest in land, must be counted.</p>

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

<p>New Teial as oe Right.—Not Proper in Suit to Set Aside Fraudulent Conveyance.—A new trial as .of right is not allowable in an ordinary suit to set aside a fraudulent conveyance of land.</p> <p>Same.—Judgment liesting on Paragraph to Set Aside.—New Trial not Proper.— Where the record on appeal shows that the judgment rests on a paragraph of complaint to set aside a fraudulent conveyance of real estate, a new trial as of right can not be granted although there may be other paragraphs seeking to quiet title or recover possession.</p> <p>Same.—New Trial Proper in Suit to Revest Title to Land Obtained by Fraud.— A new trial as of right is proper in a suit to revest title in an owner whose land has been obtained from him by fraud, and subsequently conveyed to a fraudulent grantee.</p> <p>Same.—Second Application within Statutory Period.—The fact that the court erroneously denied a new trial as of right does not exhaust the power of the court to grant a second application within the statutory period.</p>

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

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

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

<p>IEvidence.—Location of Real Estate may be Shown by Parol.—It may be proved by parol that certain described real estate is situate within the corporate limits of a city.</p> <p>Taxes.—Sale.—Action by Purchaser to Enforce Lien.—Auditor’s Certificate.— Deed.—Evidence.—Personal Property.—In an action by a purchaser at a tax sale to enforce his lien, the auditor’s certificate of the sale and the deed issued are admissible, without first proving that the owner had no personal property.</p> <p>Same. — Omitted Property. — Illegal Assessment by Auditor. —■ Copying Void Assessment on Succeeding Duplicate.—Where an illegal and void special assessment of omitted property, made by the county auditor, is copied by him upon the duplicate of a succeeding year, if is likewise illegal and void for that year.</p> <p>Same.—Interest.—Act of March 5th, 1888.—Under section 3 of the amendatory tax law of March 5th, 1883 (Acts of 1883, p. 96), the purchaser at a tax sale previously made, whose title proves to be invalid and who seeks to enforce his lien, is entitled to interest on the amount of the lien at the rate of twenty per centum per annum from the date of the sale to the date of the decree, and not to the date of payment.</p>

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

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

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

<p>DbainAGE.— Notice.— Acquiescence in Validity of Proceedings.— Estoppel.— Where,1'in giving notice in a drainage proceeding, there is an attempt to comply with the statute, and some notice is given, though insufficient, parties who have actual knowledge of the petition and the proceedings under it, and that money has been expended on the faith that the proceedings are valid, and make no objection, will be presumed to have acquiesced in their validity, and can not afterwards move to dismiss for want of notice. Vrnard v. Taylor, 97 Ind. 90, distinguished.</p>

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

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

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

<p>Taxes.—False List.—Complaint to Recover Penalty.—Residence of Taxpayer.— Construction of Statute.—A complaint to recover the penalty prescribed by section 6339, R. S. 1881, for making a false tax list, to be sufficient must aver that the defendant was a resident of the township, to the assessor of which it is alleged he gave the false list.</p> <p>Same.—Constitutional Law.—The Penalty not a Fine.—Payment into Treasury for Use of County.—Common School Fund.~-'The fact that the penalty, when recovered, is to be paid into the county treasury for the use of the county, does not bring the statute into conflict with section 2, of article 8, of the Constitution, which provides that fines shall go into the common school fund, as such penalty is not a fine in the sense of the word as there used.</p> <p>Same.—Excessive Fines and Penalties.—Discretion of Court.—As the penalty (not less than fifty dollars nor more than five thousand dollars) must be imposed in the sound discretion of the court and in proportion to the gravity of the offence, the statute is not in conflict with section 16 of the Bill of Rights.</p> <p>Same.—Double Punishment.—As the wrong for which a penalty is recoverable under such statute is different from the wrong for which a punishment may be inflicted under section 2150, it is not in conflict with the provision of the Bill of Rights forbidding double punishment for the same offence.</p>

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

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

<p>DkaiíTAoe.—Complaint to Enforce Assessment.—Petition.—Notice.—Matters of Defence.—A complaint to enforce a drainage assessment, which shows that there was a petition and notice, and a judgment establishing the drain and confirming the assessments, is good without an averment that the defendant’s land was described in the petition, or that his name appeared in the petition or notice, these being matters of defence.</p> <p>Same.— Irregular Notice.— Jurisdiction.— Collateral Attack.—The drainage law o£ 1883 requires the petition to be filed before the notices are posted, but the fact that it is filed the day after is a mere irregularity, and not in itself sufficient to defeat the collection of an assessment.</p>

<p>Towhshep Trustee.—Overseer of Poor.—Limit of Compensation.—Statute Construed.—Under section 32 of the act of March 31st, 1879 (section 6009,, R. S. 1881), a township trustee is entitled to two dollars per day, payable out of the township fund, for services rendered in the ordinary business of the township, and to the same rate of compensation, payable out of the county treasury, for services as overseer of the poor but he is not entitled to receive two dollars from each source for the same day’s services, that amount being the limit of his compensation from either or both, according as the services are performed.</p> <p>Same.—Intermingled Services.—Action Against County for Services as Overseer. " •—Reimbursement of Township for Overcharges.—Where a township trustee1 during his term intermingles his services for the township and as overseer of the poor, and receives full compensation from the township fundi for every day when he performed any official duty, he can not recover compensation from the county for services as overseer, on the ground that he is liable to reimburse the township fund for the amount overcharged for other official services.</p>

<p>Statutes.—Penal.—Construction.—-Penal statutes must be strictly construed.</p> <p>Telegraph Company.—transmitting Message.—No Penalty for Mere Neglect.—Statute Construed.—Under the act of 1885, an action will not lie against a telegraph company to recover a penally for neglect in transmitting a message, that act providing a penalty only for bad faith, partiality and discrimination.</p>

<p>Practice.—Bill of Exceptions.—Motion to Dismiss.—Supreme Court.—Where motions to dismiss, and to strike out evidence, and the rulings thereon, are not made parts of the record by a bill of exceptions or an order of the court, no question thereon is presented on appeal.</p> <p>JtjbisdictiOjí.—Circuit Court.—Claim Against County for Supplies to Poor Persons.—Township Trustee.—The circuit court has appellate jurisdiction of a claim against a county for supplies furnished to poor persons, on orders of a township trustee, where it has been presented to and disallowed by the county commissioners.</p> <p>Poob.—Relief of.—Discretion of Township Trustee.—Under the provisions of the law of this State for the relief of the poor, the poor of each county and the transient poor shall receive all necessary relief at the expense of the proper county ; and the nature and extent of such relief in each particular case is largely entrusted to the sound discretion and practical judgment of the township trustee as overseer of the poor.</p> <p>Same.—Permanent or Temporary Relief.—Whether it will he better, in any case, to remove a resident poor person to the county asylum, as a permanent charge, or to afford him temporary relief merely, is a question for the determination of the township trustee.</p> <p>Same;—Evidence.—Orders of Trustee not Conclusive, but Admissible in Action Against County.—The orders issued by a township trustee for supplies to poor persons are not conclusive upon him or the county, but they are admissible in evidence in support of a claim against the county by the person furnishing the supplies, where there is evidence aliunde that the supplies were furnished to the persons named in the orders, and that they were entitled to the relief.</p>

<p>Criminal Law.—Larceny.— Use of Word “Haul” Instead of “Carry” in Indictment.—The use of the word “ haul ” instead of the statutory wdVd “carry” (section 1934, R. S. 1881), in an indictment charging that the ■defendant “ did feloniously steal, take and haul away ” certain personal property, will not render the indictment bad on motion to quash, the words being in one sense equivalent.</p> <p>Same.—Change of Venue from County.—Discretion of Court.—The refusal of a change of venue from the county is a matter wholly in the discretion of the trial court, in the absence of an abuse thereof.</p> <p>■Same.—Bailiff of Grand Jury <ts Juror.—New Trial.—The fact that one of the jurors on the trial of an indictment was bailiff of the grand jury which returned it, and was accepted as a juror without knowledge of such fact until after verdict, is not ground for a new trial, unless it •also appears that while acting as bailiff he was present during the deliberations of the grand jury, or was otherwise disqualified.</p> <p>Same.—Evidence.—Description of Stolen Property.—Production of in Court.—• On the trial of an indictment for larceny, the kind and quality of the property alleged to have been stolen, and subsequently found in the possession of one of the persons accused, may be described by the owner, without being produced in court, although such property is in the hands of the sheriff who had taken it on a search-warrant.</p> <p>Same.—Self-Serving Declarations.—Res Ceslce.—Statements of the accused, which are not a part of the res gestee, but in the nature of self-serving declarations, are not competent evidence in his behalf. .</p>

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

<p>Raiijroad.—Service of Summons.—Omission of Christian Name of Conductor not Ground for Quashing Sheriff’s Return.—Service on a railroad company is had in compliance with the statute, R. S. 1881, section 4027, when a copy of the summons is delivered to a conductor on any train on the road passing into or through the county. The omission of the Christian name of the conductor is not ground for quashing the sheriff’s return.</p> <p>Same.—Name of Goiporation.—The designation of the defendant in the complaint as “The Cincinnati, Hamilton and Indianapolis Railroad Company,” sufficiently indicates that the defendant is a corporation. Same.—Action for Stock Killed.-— Liability of Corporation Owning Line.—■ Under the statute, R. S. 1881, section 4025, a railroad corporation is liable for stock killed on its line at a point where it has failed to securely fence its track, whether the railroad is operated by the company owning the line, or by another.</p> <p>Same.—Evidence as to Corpomtion and. Liability.—Evidence that an animal was injured upon the track of a railway known as the Cincinnati, Hamilton and Indianapolis Railroad, a branch of the Cincinnati, Hamilton and Dayton Railroad, sufficiently indicates that the former is a corporation by that name, and presumptively liable for tbe injury.</p> <p>Evidence.—Tax Assessments.— Value of Property.—Assessment lists for taxation are not competent evidence either for or against the lister, to establish the value of property for purposes other than taxation; especially so where it is sought to arrive at the value of one article by proving the value of others with which that in question was listed.</p>

<p>Pbomissoby Note.—Indorsement by Payee.—Qualification by Parol.—Indorsement to Evidence Payment,—In an action by the holder of a promissory note against the payee on his indorsement thereof, the latter may show by parol that when he put his name upon the back of the note it had already been paid, and that his name was written thereon at the request of the plaintiff as evidence of payment.</p> <p>Same.—Collateral Security for Previous Debt.—Consideration.—An existing previous debt constitutes a sufficient consideration for the pledge of collateral paper as security for its payment,</p>

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

<p>Pleading.—Demurrer.—Amendment. — Filing New Paragraph.— Waiver of Exceptions.—Where, upon the sustaining of a demurrer to his complaint, the plaintiff, without obtaining leave to amend, files what he styles another paragraph, setting up substantially the same facts as were contained in the original complaint, the new paragraph will be treated as an amended complaint, superseding that demurred out, and waiving exceptions to the rulings thereon.</p> <p>Conteaot.—Competitive Bidding on Public Worhs.—Agreement to Forbear.— Fraud.—Partnership.—Public Policy.—No enforceable right can be predicated upon an agreement of partnership, the effect of which is to stifle or diminish competitive bidding on public works and to perpetrate a fraud on public officers.</p>

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

<p>Town.— Grade of Street.—Invalid Order Fixing.—Emergency Clause.—Notice of Adoption.—Liability of Contractor for Street Improvement to Lot-Owner for Injury.—Where an order establishing the grade of a street in a town is passed by the board of trustees without an emergency clause, and no notice of its adoption .is given, a lot-owner whose property is injured by the improvement of the street, may maintain an action against the contractor for the damage.</p>

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

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

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

<p>Action.—Commencement of.—Notice by Publication.—Statute Construed.—Statute of Limitations.—Under section 314, R. S. 1881, an action is not commenced as to a defendant against whom publication is m3.de, until the time of the first publication.</p> <p>Statute of Limitations.—Contract Made in this State.—Non-Residence of Defendant.—Statute Construed.—-Under section 297, R. S. 1881, if the contract out of which a cause of action arises is made in this State, but the defendant is all the time a non-resident, the statute of limitations does not run.</p>

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

<p>Supreme Court.—Complaint Questioned by Assignment of Error.—A complaint, which is good as against the defendants named, can not be questioned for the first time in the Supreme Court.by an assignment of errors made by parties brought into the trial court on application of one of the original defendants.</p> <p>Same.—Judgment.—Practice.—If all the persons interested in land are before the court, whether parties originally or brought in by cross complaint, the court may settle and adjudicate all conflicting titles and equities; and if those so brought in are not satisfied with the decree, but make no motion to modify, they can not question it for the first time in the Supreme Court.</p> <p>Practice.—Bill of Exceptions.—Judgment.—Objections to a judgment, not exhibited by a bill of exceptions, are unavailing.</p> <p>Judgment.—Not Rendered in Sixty Pays After Trial.—The fact that the court did not make its finding within sixty days after the conclusion of the trial, does not prejudice the rights of the parties.</p> <p>Special Finding.—Facis not Found.—Nm Trial.—Facts not stated in a special finding are deemed not proved by the party having the burden of proof, and the remedy for a failure to find all the facts embraced in the issues and the evidence, is by motion for a new trial.</p>

<p>Pleading.— Written Instrument.—Filing with Complaint.—Sufficient Showing on-Appeal.—Where the complaint alleges that a copy of the written instrument counted on “ is herewith filed,” and an instrument appears in the transcript, immediately following the complaint, corresponding with, that alleged to have been filed, it sufficiently appears, on appeal, that the statute requiring written instruments or a copy to be filed with the-complaint has been complied with.</p> <p>Replevin.—Action on Bond.— Variance Between Exhibit and Complaint.— Demurrer.—If, in an action upon a replevin bond, there is a variance between the recitals in the complaint and those in the copy of the bond filed with it, the latter will control, and the variance is not available on demurrer. •</p> <p>Same.—Allegations that Judgment is in Force.—Matter of Defence.—Where a complaint on a replevin bond alleges that the defendants have failed and refused to pay the judgment rendered in the replevin proceeding, it is not necessary to aver that it is in force and unappealed from. If it is not in force for any reason, that fact should be be made to appear by answer.</p>

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

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

<p>Dbainage.—Pending Proceedings Tinder Prior Acts not Affected by Act of 1885.—A drainage proceeding begun under the acts of 1881 and 1883, and pending when the act of 1885 (Acts of 1885, p. 12!)) went into force, was in no way affected by the latter act.</p> <p>Same.—Report of Commissioners.—Failure to File at Time Fixed. —Dismissal of Proceedings.—Where, in a drainage proceeding under the acts of 1881 and 1883, the report of the commissioners is not filed at tile time fixed by the court, and no extension of time is then asked or other action taken, the petition may be dismissed on the motion of a party affected.</p>

<p>Will.—Construction.—Independent Clauses.-—Where the two clauses of a. will create an estate in the several devisees named, and they are not united grammatically or by the expression of a common purpose, each clause must be considered and construed separately, and without relation to the other, even though the testator may have had the same intention, in regard to both.</p> <p>Same.— When Subsequent Clauses will not Control.—Where an interest or estate-is given in one clause of a will in clear and decisive terms, it can not. be'taken away or cut down by raising a doubt upon the meaning and application of a subsequent clause, nor by inference therefrom, nor by ' any subsequent words that are not as clear and' decisive-as the word» giving the interest or estate.</p> <p>Same.—Life-Estate in Widow, unth Remainder Over.—Property not Devised Follows Law of Descent.—Where, by the first clause of a will, the testator-devised one undivided third of certain real estate to his wife during her life, with remainder over to their only child, a daughter, but making no-devise over or other limitation upon the estate, the widow, on the death of the daughter, unmarried and childless, inherited the same by descent as sole heir.</p> <p>Same.—-When Widow not Entitled to Life-Estate.—Where, in such case, by a second clause of his will, the testator devised the remaining two-thirds of his real estate to his daughter, and in the event of her death before, with no children living at, the death of his wife, “ then the share of said property, above devised to my said daughter, is hereby devised and bequeathed to my father,” etc., the widow, on the happening of the contingency, is not entitled to a life-estate in.such, two-thirds,.</p> <p>Same.—Possession of Devisees.—The rule, that where a devise to one who stands in the relation of heir to the testator is to take effect in possession only upon the death of the testator’s wife, the latter' takes a life-estate by implication of law,, has no application where, by the terms of the will, the devisees are entitled to possession immediately upon the. death of the testator. ,</p>

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

<p>,Bank.—Insolvency.—Trust Fund Deposit.—Preference.—Debtor and Creditor.— An administrator, or other person, who makes a general deposit of trust funds in a bank, thereby creating the relation of debtor and creditor between himself and the bank, both acting in good faith, is not entitled to any preference over other general depositors in the event the bank ' becomes insolvent.</p>

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

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

<p>Master and Servant.—Negligence.-—Defective Appliances.—Injury of Servant.—Liability of Master. —An employer who takes personal supervision of work, and provides defective or insufficient structures or appliances to be used in its accomplishment, is liable to an employee who, without fault on his part, sustains an injury by reason of the defective instrumentalities.</p> <p>Same.—Right of Servant to Rely on Safety of Appliances.—One employed in a hazardous undertaking, over which the employer exercises personal supervision, lias the right to rely on the safety and sufficiency of the instrumentalities provided for the accomplishment of the work, unless their defectiveness is so glaring as to be open to the observation of prudent men.</p> <p>Same.—The defendant, desiring to move a heavy iron safe from his office in the second story of a building to another building, constructed an anchorage of framework at the head of the stairway loading to the street, to which ropes and pulleys were attached, to control the descent of the safe. Afterwards the plaintiff was called in and directed by the defendant to take a position in front of the safe, to assist in lowering it. The frame work gave way and the .plaintiff was injured.</p> <p>Held, that he can recover.</p>

<p>Mortgage.—Married Woman.—Land Held in Virtue of Previous Marriage.— Mortgage Luring Second Coverture Void.—Descent.—Sheriff’s Sale.—Under section 2484, R. S. 1881, a mortgage executed by a woman and her second husband upon land which descended to her as the widow of her first husband, who left children surviving him, is void and creates no lien upon such land, and a purchaser under foreclosure proceedings takes no title.</p> <p>Evidence.—Objection to Admission of Must be Specific.—An objection to the admission of evidence, that it is “ irrelevant, incompetent and immaterial,” is too indefinite and uncertain to present any question on appeal. Same.—Destroyed Records.—Latitude Allowable in Admission of Parol Evidence.—Much latitude is allowable in the admission of parol evidence to supply what has been lost by the destruction of papers and records.</p>

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

<p>Marbied Woman.—Estoppel.—Under the law of this State, a married woman is bound by an estoppel in pais like any other person, and this extends to the conveyance of land, either by deed or mortgage.</p> <p>Same.—Mortgage.—Representation that Loan is for Her Use.— When Binding. —Suretyship.—A married woman who makes a representation by affidavit, which is in good faith relied on and believed to be true, that a loan is for her own use and benefit, is estopped, in a suit to foreclose a mortgage executed upon her lands to secure the loan, to deny the truth of such representation, by asserting that the mortgage was given as a security for the debt of her husband.</p> <p>Same.—Fraud.—There can be no estoppel where there is no fraud, but there may be fraud although there was no preconceived design to mislead or deceive. It may consist in the denial of what has been previously affirmed.</p> <p>Same.—Check for Amount of Loan.—Payee Immaterial.—It is immaterial to whom the check for money loaned was made payable, for if the loan was made to the wife the mortgage is valid.</p> <p>•Special Finding.—Clerical Error.—A harmless clerical error in the special finding of facts is not available for a reversal of the judgment.</p>

<p>Telegraph Company.—Refusal to Transmit Message •Over Indirect Line When Direct Line is Available.—Penalty.—Á telegraph company is not liable for the penalty provided in section 4176, E. S. 1881, for refusing ' to receive a message for transmission from one office to the desired destination, over an indirect line necessitating repetition, where it has another office in the same town, and only a short distance from the first, from which the message can be sent directly to its destination, without repetition, and from which it subsequently is sent without delay, and promptly delivered.</p>

<p>Deed.—Cancellation.—Quieting Title.—Complaint by Heirs.—Showing of Interest.—An allegation in a complaint to cancel a deed and quiet title, that the plaintiffs “ are the heirs, and the only heirs, of ” the grantor, who, it is averred, died on a certain date, shows that the plaintiffs have such an interest in the property as entitles them, to maintain the action.</p> <p>«Same.—Mental Incapacity to Convey.—Old Age.—Presumption as to Continuance of Incapacity.—Pleading.—A complaint by heirs to' set aside a deed made by the ancestor three years before her death, alleging that at the date of the deed she was eighty years old, and so enfeebled and debilitated as to be of unsound mind and incapable of comprehending the nature of a contract, is good without averments that she had not subsequently been restored t.o reason, and had not ratified the contract, as it will be pre1 sumed, in such a case, until the eontrai-y is made to appear, that the .grantor remained of unsound mind. Hardenbrooh v. Sherwood, 72 Ind. 403, distinguished.</p> <p>■Same.—Rescission.—Consideration.— When Need, Not he Restored or Tendered. —Where the consideration received by an insane grantor is neither necessary nor beneficial to him, upon his death a rescission of the conveyance may be had by his heirs without restoring or tendering what was received, although the grantor’s insanity had not been judicially declared, and the grantee acted without knowledge of his incapacity.</p>

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

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

<p>Oonteact.—Consideration.—Parol Proof of Collateral or Contempoi'aneous Agreement.—Where a collateral agreement, whether oral or written, constitutes a condition upon which the, performance of a written contract depends, or where a contemporaneous agreement of one party forms the consideration for the written contract, such collateral or conlemporane- ' ous agreement may be shown.</p> <p>Same.— Guaranty Bond.— Action on.— Consideration. — Showing Concurrent' Contract of Agency. — In an action upon a bond, guaranteeing the payment, by the principal obligor, of’every indebtedness to the obligee, then existing or which might thereafter be incurred, but which states no consideration and shows by implication that it is collateral to some other agreement not mentioned, it may be averred and proved by parol that the consideration of the bond was a contract of agency executed concurrently with it.</p> <p>Same.—LiaMlity of Guarantors.—Bond and Contract Construed Together.—In such case, the bond and the contract of agency, having been executed contemporaneously, are to be construed together, and the obligation of the bond will be limited to indebtedness arising under and embraced by such contract.</p>

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

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

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

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

<p>Patent Right.—Regulation of Sale by State.—Police Power.—Constitutional Law.—Tile statute of this State requiring the vender of patent rights to file with the county clerk copies of the letters patent, and to make an affidavit that the letters are genuine and unrevoked, and that he has authority to sell, is a police regulation, and constitutional and valid.</p> <p>■Same.—Promissory Note.— Words Required to be Inserted in.—The provision in such statute that the words “given for a patent right” shall be inserted in any obligation taken from the vendee of a patent right, is also a police regulation, but, aside from that, it is valid as a regulation concerning promissory notes.</p> <p>-Same.—Sale of Right to Use and Manufacture.—Interest Taken Under.—The statute applies to a sale of the right to use and manufacture for sale and use, within a specified territory, the patented article, for such a sale is a grant of all the beneficial interest possessed by the patentee in such territory, and carries with it an interest in the patented right itself.</p> <p>.Sale.—Consideration.—-One who assumes to transfer what the law prohibits him from transferring, unless he does certain acts, can not yield a valid consideration to the person with whom he deals.</p> <p>Promissory Note.— Patent Right.— Sale.— Non-Compliance with Statute.— Notice of Consideration.—A promissory note, taken by the vender of a patent right who has not complied with the statute, which does not contain the words “ given for a patent right,” is inoperative as between the parties and as to one who buys with notice that it was given for such right, unless the latter affirmatively shows that his endorser was a good-faith purchaser.</p> <p>Same.—Inquiry.—Knowledge that a note, which does not contain the words required by the statute, was given for a patent right, puts a purchaser upon inquiry as to whether the vender of the right had complied with the law regulating sales thereof.</p> <p>'Same.—Payable to Bearer.—Negotiability.—A note payable to bearer is negotiable as commercial paper, if it possesses the other essential requisites of such instruments.</p> <p>Same.—Statute Declaring Void.—Illegal. Consideration.—Where a statute, in direct terms, declares void a .promissory note when given for a vicious consideration, it is ineffective even in the hands of a good-faith holder.</p> <p>Same.—Innocent Holder.—The statute regulating the sale of patent rights does not either expressly or by necessary implication declare void a note taken by a vender who has not complied with the law; and where a negotiable note is executed to such person, it is valid in the hands of an innocent holder. ,</p> <p>Pleading.—Erroneous Ruling Upon Not Cured by Special Finding.—Error in sustaining a demurrer to a good reply, to which ruling an exception i® duly taken, can not be cured by the special finding.</p>

<p>Pleading.—Complaint.— When Specific Averment of Essential Fact Not Necessary.—A complaint is not bad on demurrer for the want of a specific, averment of an essential fact, where such fact is plainly apparent from other facts pleaded.</p> <p>Same.—Surplusage.—The averment of matter for which a recovery can not. be had in the action as brought will not vitiate a complaint which states a good cause of action exclusive of such averment.</p> <p>Evidence.—Objections to Admission of.—Practice.—An objection to the admission of evidence, that it is “ incompetent, immaterial and irrelevant,” is too general to present any question.</p> <p>Arbitration.—Submission to Three Persons.— When Award by Two Invalid.— Where, in a common law arbiti-ation, under a written agreement, the submission of the matters in dispute is to three citizens, and there js no-agreement that two may act and render an award, all three must meet, hear the proofs and sign the award, to render it valid.</p>

<p>Deed.—To Heirs of Living Person.—Different Construction by Acts of Grantor.— Action for Possession.—Estoppel.—The appellant, in 1871, by warranty deed, which he caused to be recorded, conveyed “ to Anna Lyies and Isaac Lyles’ heirs,” the real estate which he now seeks to recover from a remote grantee of Anna Lyles, who conveyed it without objection by appellant, after the death of her husband. Isaac and Anna Lyles paid no consideration for the land, but were living on it when appellant executed the deed, and had children then living. There has been continuous possession by the Lyles and their immediate and remote grantees.</p> <p>Held, that the deed executed by appellant is, on its face, a grant to the heirs of Anna and Isaac Lyles jointly.</p> <p>Held, also, that the parties, by their acts, having placed such a construction-upon it as to render it effectual as a conveyance, the grantor is estopped to assert title as against subsequent good-faith purchasers.</p> <p>Same.—The rule, that a deed to the heirs of a person in life is void for uncertainty, doubted. Winslow v. Winslow, 52 Ind. 8, criticised.</p>

<p>Bill of Exceptions.—Manuscript of Short-Hand Reporter.—The long-hand manuscript of the evidence, taken by a short-hand reporter, can only be certified to the Supreme Court, as a part of the record, when it has been incorporated in a bill of exceptions.</p>

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

<p>Bilí op Exceptions.—Agreed Statement of Facts.—An agreed statement of facts, in a case not an agreed one under the statute, is mere evidence, which must be brought into the record by a bill of exceptions, and unless it is shown that the bill contains all the evidence, no question which requires a consideration of the entire evidence is presented on appeal,</p>

<p>Instructions to J ury.—Memorandum, of Exception to.—Signing by Judge.— Filing.—Under sections 533 and 535, R. S. 1881, to make instructions given or refused a part of the record, the words “ given and excepted to,” or “ refused and excepted to,” must be written on the margin or at the close of each instruction, which memorandum must be signed by . the judge, and dated, and the instructions filed.</p>

<p>Partition Fence.—Agreement of Adjoining Ovmers to Maintain Distinct Portions.—Assessment of Damages.—Statute Construed.—Under section 4848, B. S. 1881, it is competent for adjoining land-owners to agree that, instead of both maintaining the whole of the partition fence jointly, each shall maintain a distinct portion thereof, and in either event the statutory method for the assessment of damages against the party in default is applicable.</p> <p>Same.—Notice.—Sufficiency of—A written notice to the owner in default that on a day and at an hour named the other owner will call upon two disinterested freeholders “to examine all of the partition fences between my land and your land in Daviess county, in the State of Indiana,” and assess the amount necessary to make them sufficient, if they are deemed insufficient, is good under the statute.</p> <p>Same.—Eoidence.—Assessment Admissible Though Not Signed.—Identification. —The assessment made by the appraisers in such case, although not signed, is admissible in evidence after it has been properly identified.</p>

<p>Replevin.—Bond.—Stranger Gan Not Maintain Action on.—An action can not be maintained upon a replevin bond by a person who was not a party to the replevin proceeding nor an obligee in the bond.</p>

<p>New TjRrAE.—Affidavits.—Record.—Bill of Exceptions.—Affidavits in support of a motion for a new trial can only be made part of the record by order of the court or bill of exceptions.</p> <p>Witness.—Decedents’ Estates.—Parties.—Where the action is against an administrator to recover money from the decedent’s estate, parties to the record are not competent witnesses as to matters which occurred .prior to the death of the decedent.</p> <p>Suereme Court.— Weight of Evidence.—Eqmty Gases.—The Supreme Court will not disturb the finding of the trial court upon the weight of the evidence, either in law or equity cases.</p>

<p>Criminal Law.—Seduction.—Promise of Marriage.—Evidence.—In a prosecution undersection 1992, E. S. 1881, for the seduction, under a promise of marriage, of a female minor, it must be shown that the intercourse took place subsequent to the promise of marriage, and that such promise was the inducement to the intercourse. For evidence held sufficient, see opinion.</p> <p>Same.— When Affidavit for Continuance Admissible in Evidence.—Where atrial is had before the court, without a jury, it is not error to admit in evidence an affidavit for a continuance made and filed at a preceding term by the defendant, and acted upon by the same judge who presides at the trial.</p>

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

<p>Juror.—Bias.—Ineompeteney.—Intoxicating Liquor. — Criminal Law. —One who, upon the examination touching his qualifications to serve as a juror, in a prosecution for unlawfully selling intoxicating liquor, admits that he would allow less weight and credit to the testimony of the defendant, if he should testify in his own behalf, than he would if such defendant were not engaged in the business of selling liquor, is incompetent.</p>

<p>. Deed.—Escrow.—Delivery Before Performance of Condition.—Fraud.—Estoppel. —-Good-Faith Purchaser.—Where a deed is executed and placed in the' hands of a third person to be delivered to the grantee, who is already in possession of the land, only upon payment of the purchase-money, but such third person, in violation of his duty, delivers the deed, on fraudulent representations of the grantee, before the performance of the condition, and it is duly recorded, the grantor is estopped to assert title as against a subsequent good-faith purchaser.</p>

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

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

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

<p>Pleading.— Demurrer.—Amendment.— Filing New Paragraph.— Waiver of Exception.—Where, after a demurrer is sustained to a complaint, another pleading, styled a second paragraph of complaint, is filed, the latter will be treated as an amended complaint, and as waiving an exception to the ruling on the demurrer.</p> <p>Maebied Woman.—Mortgage.—Complaint to Enforce.—Necessary Averments. —Power to Contract.—Where it appears on the face of a complaint seeking to enforce a mortgage, that the latter was executed by a married woman and upon her separate property, it is necessary that it should be alleged that the debt which the mortgage was given to secure was contracted by her, and that it inured either to the benefit of herself or her estate, in order to show that the contract ivas one which she had power to make.</p> <p>Same..—Acceptance by Mortgagee of Husband’s Note.—Showing that Debt «jas Contracted by and for Benefit of Wife.—Where a mortgage is executed by a husband and wife upon the latter’s land to secure the payment of a commercial note executed concurrently with it by the husband alone, the mortgagee is not concluded by the acceptance of such note of the husband from showing that the debt evidenced by it was contracted by and for the benefit of the wife.</p> <p>Mobtgage.—Promise to Pay Debt.—Effect as Security.—Statute of Limitations. —Except as it is affected by the statute of limitations, a 'mortgage has the same force and effect as a security for a debt, whether it contains an express promise to pay written therein or not.</p> <p>Pbactice.—Pleading.—Enidenee. —Harmless Error.—Supreme Court.—Where an error is committed in sustaining a demurrer to a paragraph of complaint, in order to prevent a reversal it must affirmatively appear that there was another paragraph under which the same facts might have been proved, and that the error was therefore harmless.</p>

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

<p>•County Commissioners.—Might to Sue for Moneys Due County.—Settlement with Treasurer.—Mistake.—An action against a former county treasurer individually to recover moneys due from him to the county, by reason of a mistake on the part of the county whereby he had been given credit on final settlement for county orders which had been previously ¿redeemed and for which he had been given full credit in other settle-</p> <p>ments, may properly be brought by and in the name of the board of county commissioners. . Section 0506, R. S. 1881, providing that actions shall be brought by the State, on the relation of State and county auditors, in. certain cases, does not apply.</p> <p>Pleading.—Demurrer.— Capacity to Sue.—The cause for demurrer, that “ the-plaintiff has not legal capacity to sue,” has reference only to some legal disability, such as infancy or insanity, and not to the fact that the complaint fails to show a right of action in the plaintiff'.</p>

<p>EvroENCE.— Weight of.—Attorney and Client.—Agency.—Breach of Trust.— Damages.—Beal Estate.—Conveyance,.—Action for breach of trust and consequent damages, it being alleged in the complaint that the plaintiff had . employed the defendant, an attorney, to purchase and get possession of a tract of land for him, and that he had acquired title and possession, but refused to convey to the plaintiff, and had conveyed to another person. The only question arises upon the evidence, and as it is conflicting the finding of the trial court will not be disturbed.</p>

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

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

<p>Contbact.—Infant.— Voidable.—The contract of an infant for the purchase-of personal property not a necessary is voidable, not void.</p> <p>Same.—■Disaffirmance During Non-Age.—An infant may repudiate a contract respecting personal property during non-age.</p> <p>Same.—Disaffirmance Avoids Ab Initio.—The disaffirmance of a voidable contract of an infant avoids it ab initio, and it ceases to be effective for-any purpose.</p> <p>Same.—False Representation of Áge.—Fraud.—Action Fx Delicto Will Die-Against Infant.—An action will lie against an infant, who has obtained property on the faith of a false and fraudulent representation that he-is of full age, for the loss actually sustained by a party who dealt with him in good faith and in the exercise of reasonable diligence, where a recovery can be had without giving effect to the contract.</p> <p>Same.— When Action May be Brought.—In such a case, the action may be brought when the contract is repudiated, although the time for performance has not expired.</p> <p>Pleading.Complaint.—Demurrer.—If a complaint states facts entitling^ the plaintiff to relief, it will repel a demurrer, although it may not entitle him to all the relief prayed.</p>

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

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

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

<p>Mortgage.—Foreclosure.—Complaint.—Description of Interests of Defendants:. —It is not necessary, in a complaint for the foreclosure of a mortgage, to specifically describe the interest which each defendant has or may claim to have in the real estate covered by the mortgage.</p> <p>Same. — Becordiny. — Averments as to. - Subsequent Purchasers. — Notice.— Where it is shown by a complaint to foreclose a mortgage that any of the defendants are subsequent purchasers, it must be alleged that they purchased with actual notice of the mortgage, or that it was recorded within the time fixed by the statute, or before the sale and conveyance-of the mortgaged property; but whore it does not appear from the allegations of the complaint that any of the defendants are subsequent purchasers, it is not necessary to the sufficiency of the complaint that it should contain an averment that the mortgage has been recorded. Assignment of Error.—By Appellants Jointly.—¿Sufficiency.—Where errors are jointly assigned by several appellants, they must be well taken as-'to all. in order to be available to any one of them.</p> <p>Husband and Wife.—Fraudulent Conveyance.—Preference of Wife as Creditor.—A husband may prefer his wife as a creditor by conveying to her real estate in payment of his indebtedness to her, and such preference will be upheld, if untainted with fraud.</p>

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

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

<p>Replevin.—Authority of Person who Makes Seizure.—Sheriff’s Return.—Evidence.—Action on Bond.—Where the plaintiff in a replevin proceeding obtains possession of the property, neither he nor his sureties can, in an action on the bond, impeach the sheriff’s return, or question the authority of the person who seized the property upon the writ and from whose hands he accepted it.</p> <p>Same.—Administrator.—Chattel Mortgage.—Mitigation of Damages.—Estoppel. —Where an administrator has obtained possession of property by proceedings in replevin, he mayshowin mitigation of damages, in an action on the bond to recover the value of the property, that the estate of which he is administrator holds an unpaid chattel mortgage upon it, unless estopped by the adjudication in the replevin suit.</p> <p>Same.—Former Adjudication.—Question of Title.—Not Determined Unless Distinctly in Issue.—The action of replevin is possessory in its character, and unless the title to property is distinctly put in issue, the judgment determines nothing beyond the right of possession.</p> <p>Same.—Pleadings.—Matter in Issue.—Where the pleadings in a replevin suit show that no question of title was involved, a judgment assuming to settle the question of ownership is void.</p> <p>Same.—Collateral Inquiry.—Where subjects are adjudicated which are not in issue, they may be inquired into collaterally, notwithstanding the judgment.</p>

<p>Insurance.—Foreign Company—Notice to Agent is Notice to Company.— Notice to the resident agent of a foreign insurance company, in relation to any business of insurance transacted by him for the latter, is notice to the company.</p> <p>Same.—Condition in Policy for Notice to Company.—Sufficient Compliance With. —Where a condition of the policy requires that the assured shall give notice and also render a particular account of his loss to the company, the giving of such notice and the rendering of such account, or a tender of the same to an authorized agent of the company, constitute a sufficient compliance with the condition.</p> <p>Same.—Condition that Procura• of Insurance Shall be Agent of Assured.— When Void.—A condition in a policy of insurance, “ that any person, other than the assured, who may have procured this insurance to he taken by the company, shall be deemed to be the agent of the assured named in this policy, and not of this company,” is void as applied to a person i. e., a local agent, upon whose counter-signature the validity of the jjolicy, by its terms, is made to depend. It is doubtful whether such a condition, under any circumstances, can be made available as a defence for the company after a loss lias happened.</p> <p>Demurrer to Evidence.— What it Admits.—A demurrer to the evidence admits all facts which the evidence tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence.</p> <p>;Same.—Assessment of Damages.—Evidence.—Presumption.—Where there is a demurrer to the evidence and the jury is discharged, and, after the demurrer is overruled, the assessment of damages is submitted to the court, neither party asking for another jury, it will be presumed, if the record is silent, that the court hoard all necessary evidence on the question of damages.</p>

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

<p>Telegraph Company.—Section 4176, R. S. 1881.—Repeal of by Implication by Act of 1885.—Section 4176, R. S. 1881, relating to the duty of telegraph companies in the transmission of messages, and providing penalties, was repealed by implication by the act of April 8th, 1885 (Acts 1885, p. 151), on the same subject.</p> <p>Same.—Penalty.—Repeal of Act Providing, Poes Not Prevent Recovery.—Under section 248, R. S. 1881, the repeal of a statute providing a penalty does not extinguish a right of action which accrued thereunder, unless the repealing act expressly so provides. The act of 1885 not so providing, section 4176 is to be treated as in force for the purpose of sustaining an action to recover a penalty incurred before its repeal.</p> <p>Same.—Sender of Message.—Right of Action.—Quaere.—Under section 4176 only the sender of a message could maintain an action for the penalty therein provided. Qtiaere, whether the right of action is extended by the act of 1885.</p> <p>Same.—Burden of Proof.—Special Finding.—The burden is upon the plaintiff, in an action for the penalty, to show that he was the sender of the message, and if there is a special finding of facts, the fact that he was the sender must affirmatively appear.</p> <p>Same.—A finding that the plaintiff, Alonzo F. Brown, delivered to the telegraph company, and paid for the transmission of, a message signed “ L. F. Brown,” is not a'sufficient finding that the plaintiff was the sender.</p> <p>Sóbreme Court.—■ Special Finding.— New Trial.—Mandate on Reversal of Judgment.—Where there is a special finding of facts and conclusions of</p> <p>law, the Supreme Court, on reversing the judgment, will remand the cause for a new trial where justice requires it, instead of for judgment on the facts.</p>

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

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

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

<p>Wile.—Description of Land.—Mistake.—A will contained this provision : “As to my real estate, I dispose of it as follows: I own the east half of the northwest quarter,”, etc., “ and I hereby give and bequeath the same to my son/’ etc. The testator did not own the east half of the northwest quarter, but did own the west half.</p> <p>Meld, that as the will itself shows a mistake, it will be made to operate upon the land intended to be devised.</p> <p>Same.—Evidence.—Declarations of Testator.—Verbal declarations of a testator are not competent evidence to show a mistake in a will, but facts .and circumstances are.</p>

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

<p>Decedents’ Estates.—Appeal.—Application to Supreme Court for Leave.— Notice. — Practice. — Bes Judicata.—Where an appeal from a decision affecting a decedent’s estate is not taken within the time limited by section 2455, B. S. 1881, and afterwards an application is made to the Supreme Court for leave to appeal, the adverse party, when practicable,, is entitled to notice of such application; but where leave is granted without such notice, and both parties are brought into court, the matter will be treated as adjudicated, and a subsequent motion to dismiss will be overruled.</p> <p>Same.— Will.—Charging Land Devised With Payment of Debts.—Other Property not Beleased.—A provision in a will, charging the land devised to-the testator’s widow with the payment of all claims against his estate, does not release property left to other devisees from sale in the event that devised to the widow shall be insufficient to pay the debts.</p> <p>Same.— Unauthorized Sale of Land by Administrator.—Be-Sale.—An administrator has no authority, in the absence of a testamentary provision to that effect, to sell real estate of his decedent, except upon the order of the proper court, 'and where a sale is made without such authority, the purchase-money does not become assets in the hands of the administrator, and the purchaser takes the land subject to its liability to be again, sold under legal proceedings for the payment of debts.</p> <p>Same.—Rights of Purchaser.—Subrogation.—But where, in such case, the purchase-money derived from such unauthorized sale, is by special arrangement applied on debts of the estate, the purchaser becomes the equitable owner of such debts and is entitled to be subrogated to all the rights of the original holders, according to their respective priorities, but his lien is of no greater extent.</p>

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

<p>Vendob and Purchaser.—Assumption of Debt.—Agreement to Pay Encumbrance.—Enforcement by Creditor.—Equity.—Where a purchaser assumes the payment of a debt owing by his vendor to a third person, or expressly agrees to pay an encumbrance on the land, out of the purchase-money, such agreement inures to the benefit of the creditor, and may be enforced in equity.</p> <p>Same.—Mortgage.—An agreement between the vendor and purchaser of real estate, in which it is recited that there is a mortgage on the property which tiie former claims is paid, and which he agrees to have satisfied of record within one year, failing in which the grantee may pay the same out of purchase-money still owing by him, is not such an assumption of the mortgage debt, or such an agreement to pay it, as entitles the mortgagee to maintain an action thereon.</p>

<p>'Criminal Law.— New Trial.—Newly Discovered Evidence.— A new trial should be granted on the ground of newly discovered evidence where the latter shows a strong probability of innocence. '</p>