Volume 109 — Indiana Reports

<p>Injunction.—Jurisdiction.—Election Returns.—Alleged Illegality.—Custodian. —Secretary of State.—Speaker of House of Representatives.—The courts have no jurisdiction of a suit to enjoin the secretary of state from delivering to the speaker of the house of representatives the sealed returns, alleged to be wrongful and illegal, of an election for Lieutenant-Governor, which are directed to the speaker, as required by law, in care of the secretary, and are to be delivered to him by the latter.</p> <p>:Same.—Jurisdiction of Subject-Matter.—Consent of Pariies.—Jurisdiction over the subject-matter must be given by law; it can not be conferred by consent of the parties.</p>

<p>Taxes.—Repeal of Law.—Collection of Prior Taxes.—Act of 1872.—The collection of taxes assessed under the law in force prior to 1872 was not affected by the repeal of that law by the act of 1872.</p> <p>Same.—Act of 1881.—All taxes existing at the time the act of 1881 was passed were expressly preserved by that act, and were not affected by the repeal of prior laws.</p> <p>'Same.—Presumption of Legality.—It will be presumed, as provided by statute, that all taxes assessed upon property in this State were legally assessed, until the contrary is affirmatively shown. Section 6498, B. S. 1881.</p> <p>•Same.—Lien Perpetual.—Dropping from Duplicate.—Reinstatement.—The lien for taxes is perpetual until payment, and is not destroyed by the taxes being' dropped from the duplicates for some in ter vening years and placed for those years upon a “ register of doubtful taxes.”</p> <p>Same.—Presumption that Taxes were Placed on Duplicate hy Proper Officer.-—It will be presumed, in the absence of any showing to the contrary, that specified taxes were placed upon the duplicate in the treasurer’s hands by the county auditor, whose duty it is to do so.</p> <p>Same.—Delinquent.—Distress and Sale.—Replevin.—Legality of Assessment.— County Treasurer.—In an action against a county treasurer to replevin property distrained by him for delinquent taxes, if the duplicate in his hands is legal on its face, it is not necessary for him to show a legal assessment of the taxes.</p> <p>Same.—Authority of Treasurer to Collect.—Under the act of 1881, the county treasurer, by virtue of the duplicates placed in his hands by the county auditor, has authority to collect delinquent taxes by distress and sale of personal property, at any time, whether before or after the April settlement, whether the list provided for by section 6427 has been made or not, and whether the delinquent taxes are charged upon the current duplicate or not.</p> <p>Same.— When Replevin will not Lie.—Eeplevin will not lie to recover possession of property taken for a tax assessment.</p> <p>Evidence.—Receipt.—Contradiction by Parol.—A receipt may be explained or contradicted hy parol.</p> <p>.Supreme Court.—Agreement.— Interpretation by Parties in Trial Court.— Theory of Case.—Upon an appeal to the Supreme Court, the parties to an action will be held to the interpretation which they have placed upon an agreement in the trial court, and to the theory upon which the case was tried.</p>

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

<p>.Elections.—Laws to be Liberally Construed.—Election laws are to be liberally construed when necessary to reach a correct result, and their provisions treated as directory rather than as mandatory.</p> <p>Same.—■ Change of Preeincts.— Statute Construed.—Section 4687, R. S. 1881, prohibiting a change in the boundaries of election precincts by the county commissioners after the June term of the board next preceding any election, does not apply where the readjustment of aprecinct becomes necessary on account of a change in the boundary line between townships.</p> <p>Same.— Change of Township Boundary.—Bight to Vote.—Where the boundary line of a township is changed by the county commissioners, at their December term next preceding the April election, by the addition of territory taken from an adjoining township, the persons residing upon such territory, being otherwise legal voters, are entitled to vote at such election in the precinct into which they have been cast.</p>

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

<p>Mortgage.— When Deed Is.—Although a deed is absolute on its face, it is only a mortgage if executed to secure an existing debt.</p> <p>Same.—Release.—Consideration.—Evidence.—A release may be shown to be without consideration.</p> <p>Same.—Equity.—Merger.—Extinguishment.—Deed.—-Where the holder of a purchase-money mortgage, after a second mortgage upon the land has been executed to a third person, extends the time of payment of the amount due on his mortgage, and as a security accepts a deed to the land absolute on its face, and subsequently, without consideration and with no intention of releasing his lien, releases his mortgage of record, such mortgage will be kept alive in order that he may not lose the priority of his lien.</p> <p>Same.— Uniting of Two Estates in Mortgagee.— When Mortgage not Merged.— Even when the fee in the mortgaged property has been vested in the mortgagee by a conveyance from the mortgagor, and the mortgage has been released, it will still be upheld whenever it is for the interest of the mortgagee, by reason of some intervening title or other cause, that it should not be regarded as merged.</p> <p>Evidence.—Privileged Communications.—Attorney.—Scrivener.—Communications made to an attorney who is acting for both parties, and which are made in the presence of both, are not privileged, nor are communications made to an attorney acting as a scrivener.</p> <p>Same.— Witness.—Action by Executrix.—In an action by an executrix upon a contract made with her testator by the defendant, the latter is not a competent witness.</p> <p>Same.—Exclusion.—Harmless Eiror. —The exclusion of competent evidence is a harmless error where the result must have been the same had it been admitted.</p>

<p>Judgment.—Avoiding Payment—Fraud.—Imprisonment.—Section 22 of article 1 of the Constitution authorizes imprisonment for fraud practiced in avoiding the payment of judgment debts.</p> <p>Same.—Execution Against Body.—Affidavit—Before an execution against the body of a debtor can be issued for fraud in avoiding the payment of a judgment, it must be made to appear by the affidavit or verified complaint, that the amount due upon the judgment can not be collected by an ordinary execution against the property of the debtor.</p> <p>Same.—Civil Action.—A proceeding supplemental to execution, and a proceeding to procure an éxecution against the body of a debtor, are civil actions within the meaning of the civil code.</p> <p>Same.—Former Adjudication.—Estoppel.—A judgment in favor of the debtor in a proceeding supplemental to execution, although it is erroneous, is a bar to a subsequent proceeding for an execution against his body, where the questions of fact and the object sought in the two cases are the same.</p> <p>Same.—Form of Actions.—It is not necessary to an estoppel by judgment that the former action was the same in form as that in which the adjudication is pleaded.</p> <p>Same.—Cause of Action.— When the Same.—The right of the plaintiff, and the obligation, duty or wrong of the defendant, constitute the cause of action, and the cause of action is the same where the same evidence will support both actions.</p> <p>Same.—Money in Possession of Debtor.—Proceedings Supplemental to Execution. —Money in the possession of the judgment debtor, which he refuses to-surrender in payment of the judgment, may be reached by proceedings supplemental to execution. Wallace v. Lawyer, 54 Ind. 501, criticised.</p> <p>Same.—“Property.”—Meaning of Word.—The word “ property,” as used in the statute providing for proceedings supplemental to execution, embraces every species of things in which there may be an ownership and which may be made available in the payment of judgments, including money.</p>

<p>Drainage.—Judgment.—Pleading.—Where an answer in bar of an action to recover a drainage assessment alleges facts showing that the drainage proceedings were void for non-compliance with the law in force at the time, a reply that the drain was established under a prior act which did not contain the requirements which had been violated, is bad where such act had been repealed before the proceedings were begun.</p> <p>Former Adjudication.—Irregularities.—Estoppel.—Pleading. — Where an answer pleads a former adjudication of the matters in issue, a reply attacking the validity of the judgment in the former action, on the ground of mere irregularities and errors which are not sufficient to render it void, is bad.</p> <p>Same.—•Presumption of Regularity of Judgment.—Where a former adjudication is pleaded, it will be presumed, in the absence of an affirmative showing to the contrary, that the record of such adjudication is regular and free from error.</p>

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

<p>'Pleading.—Complaint.—Name.—Initial Letters.—Decedents’ Estates.—Practice.—The fact that only the initial letters of the Christian name of the plaintiff are given in a claim against a decedent’s estate is not such a defect as warrants the reversal of the judgment, where there is no demurrer or assignment of error questioning the sufficiency of the complaint.</p> <p>Contract.—Conditional Insurance.—Forfeiture.— Sale.— Execvior.—Where a¡ mare, insured to get with foal, is sold by the executor of the owner within eleven months from the date of service, in violation of a condition that a sale by the owner within that time should forfeit the insurance, the price for the service may be recovered.</p>

<p>Town.—Adoption of Oity Charter.—Election.—Quo Warranto.—Pleading.—It. is sufficient if a majority of the legal voters who vote at an election! held in an incorporated town to determine whether a city charter'shall be adopted, agree to the change, and an averment in an information to test the legality of the city organization, that a majority of the legal voters of the town did not vote in favor of the change, -is insufficient.</p> <p>'Same.—Inspector’s Statement.—Record of County Clerk.—Presumption of Discharge of Duly.—When nothing is shown to the contrary, it will be presumed that the inspector of such election certified to the clerk of the circuit court a proper statement of the votes cast, and that the clerk made a record of the statement in his office, as required by law.</p> <p>■Same.—Conclusiveness of Clerk’s Record.—Census.—The record made by the clerk is conclusive of the regularity of all the previous proceedings, except as to whether a majority of the votes given favored the adoption of a city charter, and it is too late to thereafter question the regularity of the census taken.</p> <p>■Same.—Legality of City Organization.—Quo Warranto by Private Citizen.— Sufficiency of Information.—An information in the nature of a quo warranto by a private citizen, to test the legality of a city organization, .must show (1) that the relator is interested in the subject-matter, (2) that he did not by his vote, or otherwise, concur in the proceedings of which he complains, and (3) that, where there is no fraud or intentional violation of law, no public or private interest will be seriously affected by the granting of the relief demanded.</p>

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

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

<p>Fraudulent Conveyance.—Husband and Wife.—Trust.—Where, without his wife’s consent, a husband takes the title to property purchased wholly with her money in his own name, a subsequent conveyance of it to her can not be set aside as fraudulent at the suit of a creditor of the husband. While the title is in the husband he holds it in trust for the wife, the equitable owner, and no act of his can enlarge his interest in the property.</p> <p>Same.—Exemption, from Execution.—Judicial Sale.—Where property alleged, to have been fraudulently conveyed by a husband is beyond the reach of his creditors by reason of the exemption law and the law vesting absolutely the wife’s inchoate one-third in the event of a judicial sale, a deed made by the husband with the intention of vesting the title in his wife, even though it be voluntary and without consideration, is not fraudulent as against creditors.</p> <p>Same.— Witness.—Suit by Administrator.—In a suit by an administrator against a husband and wife to set aside an alleged fraudulent conveyance, the defendants are not excluded, by section 498, R. S. 1881, from testifying in their own behalf, that the property sought to be reached was purchased with the wife’s money and the title taken in the name of the husband without her consent, and other matters relating to its purchase and improvement, although they occurred prior to the death of the decedent.</p> <p>Witness.— Suit in which Administrator is Party.— Statute Construed.— The proper construction of section 498, R. S. 1881, seems to be, that when a party to a subject-matter or contract is dead, and his rights in the thing or contract have passed to another, who represents him in the action which involves such contract or subject-matter, the surviving party is not competent to testify to matters occurring during the lifetime of the, decedent.</p>

<p>Railboad.—Appropriation Proceedings.—Description.—Action to Recover.— Where, in a proceeding by a railroad company to appropriate land, the description in the instrument of appropriation is sufficient to indicate to the owner the land wanted, the latter can not, after having appeared in the condemnation proceedings without making any objection to the description, maintain an action to recover the land.</p>

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

<p>Evidence.—Communications Between Husband and Wife.—Fraudulent Conveyance.—Consideration.—Statute Construed.—In a suit against a husband and wife to set aside an alleged fraudulent convey anee from the former to the latter, the negotiations between them prior to the conveyance, relative to the consideration, are not incompetent under section 497, B. S. 1881, and are admissible in evidence.</p> <p>'Ikiaí.—Special Judge.—Failure to Sign Judgment.—Bight to Sign at Subsequent Term.—Be-Trial.—Where a cause is tried by a special judge, who neglects to sign the record of the final judgment, at the term at which it is rendered, he may sign it at a subsequent term. Such failure is at most a mere irregularity, and does not entitle the judgment defendant to a re-trial.</p>

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

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

<p>Descent.—Son-in-Law.—Heir by Adoption.—Where a wife dies, without issue, prior to the death of her father, her husband, upon the death of the latter, does not inherit, as by adoption, the share of his estate which the law would have cast upon his wife had she survived her father.</p>

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

<p>■Continuance.—Refusal to Grant.—Harmless Error.—Where a party is not injured by the overruling of a motion for a continuance, there can be no reversible error.</p> <p>Same.—Absent Witness.—Diligence.—To entitle a party to a continuance on account of the absence of a witness, he must show that he has exercised proper diligence to obtain the testimony of such witness.</p> <p>Practice.—Objection to Evidence.—A general objection to the admission of evidence presents no question on appeal.</p> <p>Instructions to Jury.—Exceptions.—Bill of Exceptions.—Practice.—Where-instructions upon which error is sought to be predicated are made part . of the record by a bill of exceptions, what occurred in the way of exceptions to the giving or refusal of such instructions, must be stated in the bill as facts and be authenticated by the signature of the judge.</p>

<p>Deed.—Cancellation.—Contract.—Rescission.— Cross Bill.— When Court Should Direct Filing of.—B. was induced to convey to S., by warranty deed, a tract of land owned by him and a tract owned by M., by an agreement of S. to pay the purchase-money for the former tract and the amount of a mortgage held on the latter tract by B., and to pay M. the balance of the agreed price of his land, M. thereupon to convey the same to B.; S., failed to pay M. and he refused to convey to B. Suit by B. to rescind the contract and to cancel his deed.</p> <p>Held, that B. is entitled to the relief prayed, unless upon a cross bill, M. compels the execution of the contract between himself and S., and that, all the parties being in court, the filing of such cross bill should have been directed in order that the whole controversy might be determined.</p>

<p>Assignment of Error.—Sufficiency of Complaint.—An assignment of error, that “ the complaint does not state facts sufficient to constitute a cause of action,” is not available for the reversal of the judgment, unless some fact essential to the existence of the cause of action has been wholly omitted from the complaint.</p> <p>Drainage.—Assessment.—Complaint to Enforce.—In a suit for the collection of a drainage assessment, all that the complaint need show concerning the proceedings for the establishment of the ditch are, that some notice. was given of the filing of the petition; that the petition was filed; that the commissioners reported the benefits and damages assessed; that the report was approved by the court, and that a copy of the assessment against the defendant is made part of the complaint. Scott v. Brackett, 89 Ind. 413, distinguished.</p> <p>•Same.—Trial by Court.—Jury.—Suits for the collection of drainage assessments are triable by the court and not by a jury. Section 4276, R. S. 1881, and the amendatory act of 1883, Acts 1883, p. 176; also, section 409, R. S. 1881.</p> <p>Same.—Damages.—Set-Off.—Counter-Claim.—Damages alleged to have been sustained by reason of the failure of the drainage commissioner to construct and complete the work as petitioned for, are not a proper subject of counter-claim or set-off by the defendant in a suit by such commissioner to enforce an assessment of benefits.</p> <p>.Pleading.—Striking Out.—Bill of Exceptions.—Practice.—Supreme Court.— To present any question on appeal, upon a ruling striking out a pleading, such pleading must be brought back into the record either by a bill of exceptions or an order of the court.</p>

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

<p>City.—Street Improvement.—Notice.—If the common council of a city directs that notices inviting proposals for the improvement of a street shall be published in two newspapers, publication in one is not sufficient.</p> <p>Same.—Transcript.—Collection of Assessment.—Sufficiency of Notice.—As the transcript certified by the city clerk is made by law to stand in the nature of a complaint in a proceeding by a contractor to collect an assessment, it is good on demurrer if it shows some notice. If the notice is insufficient the fact must be set up as a defence by way of answer.</p> <p>Same.—Quaere, whether in a proceeding to enforce a street assessment the sufficiency of the notice inviting proposals can be inquired into as a fact. See opinion for cases pro and eon.</p> <p>Same.—Estoppel.—Contract.—A property-owner can not quietly permit money to be expended on work which benefits his land, under a contract with the city, and then deny the power of the city to make the contract.</p> <p>Same.—•Estimate.—The final order of the common council directing an estimate is not affected by a previous order refusing to do so.</p> <p>Same.—Assignment of Estimate.—Paiificalion.—A. ratification by the common council of an assignment of the estimate by the contractor, is equivalent to precedent authority, and entitles the assignee to collect the assessments.</p> <p>Same.—•Description of Improvement.—A resolution of the common council providing' for the improvement of a street, is sufficient if it gives a general direction as to the character of the improvement, without describing it in detail.</p> <p>Same.—Plans and Specifications.—Evidence.—The plans and specifications prepared by the city engineer are competent evidence in a suit to collect a street assessment.</p>

<p>Bailroad.—Action for Stock Killed.—Fence.—Burden of Proof.—When it is shown, in an action by the owner against a railroad company to recover the value oí a horse, that at the point where the animal went upon the track and was killed, the road was not securely fenced, the burden is then upon the defendant to show, in order to escape liability, that at that point it was not bound to maintain fences.</p> <p>Same.—• Venue.—Justice of Peace.—Such an action may be brought before any justice of the peace in the county where the animal is killed.</p>

<p>Drainage.—Complaint to Collect Assessment.— Must Show Notice of Filing Petition for Brain.—A complaint to collect a drainage assessment is bad on demurrer unless it shows, either by averment or by exhibits properly constituting a part of it, that some notice was given of the filing of the petition for the establishment of the drain.</p>

<p>! Supbeme Court.—Appeal,—Motion for New Trial.—Where the record shows that a motion for a new trial was made and overruled in the lower ■ court, but the record does n'ot disclose that any written causes for a new trial were filed, it will be presumed that no motion, accompanied by specified causes, as required by the statute, was presented to the court below.</p> <p>•Same.—Motion for New Trial.—Assignment of Errors.—Objections to the finding of the lower court, or to its rulings on the admissibility of testiifiony, are available only by a motion for a new trial, and can not be presented for the first time by assignment of error in this court.</p>

<p>Sheriff.—■ Escape of Prisoner.-— Action for.—Recapture.— Measure of Damages.—-Bastardy.—Where, during the pendency of an action against a sheriff, by the relatrix in a bastardy proceeding, for permitting the defendant in that proceeding to escape, the fugitive is re-arrested, although more than three months after his escape, and held in custody under a judgment recovered against him in his absence by the relatrix, the sheriff is liable only for actual damages. State, ex rel., v. Hamilton, 33 Ind. 502, and cases following it, distinguished.</p>

<p>Voeuntaby Assignment.—Deed—Preference of Creditors.—Fraud.—In the absence of actual fraud, a deed of assignment, under the statute, for the benefit of creditors, will be upheld as a valid general assignment notwithstanding a provision that certain creditors shall be preferred, as sucb provision will be controlled and annulled by the statute.</p>

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

<p>Vobuntaby Assignment.—Sale of Mortgaged Property.—Enforcement of Mortgage Against Proceeds.—Section 2674, E. S. 1881, concerning voluntary assignments, is not applicable to a complaint by a mortgagee seeking to enforce his mortgage against the proceeds of a sale of the mortgaged property.</p> <p>Same.—Sale by Assignee.—Payment of Lien.—Contract.—The creditors of a debtor who has made an assignment for the benefit of iris creditors can not, to tlie injury of the mortgagee, repudiate a contract made by theassignee with the holder of a chattel mortgage to sell the mortgaged, property and apply the proceeds to the payment of the lien.</p> <p>Same.—Preference of Creditor.—Chattel Mortgage.—A debtor may in good faith prefer a creditor, and a chattel mortgage executed five days prior to a deed of assignment will be upheld in the absence of a showing of-fraud.</p> <p>Tbial.-—By Court.—Suit to Set Aside a Mortgage.—A suit to set aside a mortgage is of equitable cognizance, and triable by the court.</p> <p>Special Finding.—Fads Not Found.—Presumption.—Facts not stated in a special finding are presumed, as against the party having the burden-of proof, not to exist.</p> <p>Same.—Fraud.—Chattel Mortgage.—Fraud is a question of fact, and must be found as such. - It is not enough to justify a judgment in favor of one who attacks a chattel mortgage on the ground of fraud that some of the circumstances recited in the special finding might be deemed evidences of fraud.</p> <p>Demand.— When Not Necessary.—A party who is brought into court at the suit of another is excused from making a demand which might be-required if he were the moving party.</p>

<p>Mortgage.— When Deed and Contemporaneous Contract Constitute a Mortgage. — Conditional Sale.—Where, upon construing together a deed absolute on its face and a contemporaneous written contract, it appears that at the time they were executed there was a pre-existing debt owing to the grantee, the subsequent payment'of which by the grantor would entitle him to a reconveyance of the property, and that the grantee surrendered no remedy previously available to him for the collection of his debt, and that the obligation of thegrantor remained the same, such deed and contract constitute a mortgage, and not a conditional sale.</p> <p>New Trial. —As of Right.— Cancellation of Mortgage.— Quieting Title.—A new trial as of right is not allowable in a suit to have a deed adjudged to be a mortgage and to procure its cancellation, as satisfied, even though the complaint also prays for a quieting of title.</p> <p>Estoppel.—Mortgage.—Claim, of Title.—One who takes a mortgage of real estate is estopped to claim title thereto.</p>

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

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

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

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

<p>Habeas Corpus.—Delay of Trial.—Application for Discharge from Custody-—Judgment.—Collateral Attack.—Upon the hearing of an application by a prisoner, under sections 1782 and 1784, E. S. 1881, to be discharged from custody on the ground that his trial has been delayed more than, two terms without his consent, if it appears that the delay has been caused by any act of the applicant, it is the duty of the court to remand him, and the judgment in that proceeding is conclusive on habeas corpus.</p>

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

<p>Railroad.— Liability for Animals Killed.-—■ Fence. — Station Grounds and Sidings.—A railroad company is not required to fence its track at stations and sidings where freight or passengers are received or discharged, and are not liable to pay for animals which enter upon the track at such places and are killed, without negligence on the part of the company.</p> <p>Same.—The material question in such cases is the condition of the road at the place where the animals enter upon the track, and not at the place where they are killed.</p> <p>Practice.—Short-Hand Reporter.—Long-Hand Report of Evidence.—Exhibits. —Original Papers, When Part of Record.—Bill of Exceptions.—Supreme Court.—Original papers read in evidence, and accompanying and identified by the long-hand report of the evidence taken down in short-hand by the official reporter, will be treated in the Supreme Court as constituting a part of such report, and as properly in the record when embraced in a bill of exceptions.</p> <p>Trial.—Erroneous Theory.—Supreme Court.—Reversal of Judgment.—The trial of a cause upon an erroneous theory is a mis-trial, authorizing a reversal of the judgment, except where a just conclusion has been reached upon the merits.</p>

<p>Pleading.—Complaint.—Anticipated Defence.—Promissory Note.—Release of Maker Endorsed Thereon.—Where a complaint counts upon a promissory note, and the anticipated defence to the note is a written release of the maker so endorsed on the note as to become in some sense a part of the cause of action, the plaintiff may state in the complaint the anticipated defence and the facts intended to show that it is invalid; but if the facts stated in avoidance of the defence are not sufficient for that purpose, the complaint is bad on demurrer.</p> <p>Administbatoe.—Power to Release Maker of Promissory Note.—Under the law of this State an administrator has power, in good faith and upon a sufficient consideration, to release one of the makers of a promissory note, executed to him in his fiduciary capacity, from liability for the balance of the note remaining unpaid.</p>

<p>Promissory Note.—Capacity of Payee to Endorse.— Warranty.—Estoppel.— The maker of a note negotiable under the law merchant warrants the capacity of the payee to transfer it in the usual course of business, and can not, by asserting the contrary, defeat it in the hands of a good-faith, holder.</p>

<p>Deed.—Insanity of Grantor.—Disaffirmance.—Destitution.—E., a person of unsound mind, incapable of comprehending the nature of the transaction, without any valuable consideration, conveyed her real estate to T. by deed, which was duly recorded. To secure a loan of money with which to pay off delinquent taxes and other liens against the land, T. executed a mortgage thereon to II., who had no knowledge of E.’s unsoundness of mind, but advanced the money and accepted the security in good faith, relying on the public records. E. received no benefit from the money, either in person or estate. In a suit by H. to foreclose tiie mortgage,</p> <p>Held, that although there was no disaffirmance by E. or her guardian, and no offer to make restitution of the money advanced by H., the deed was at least voidable, and that H. could not recover, as against E., who was entitled to have her title quieted as against him, by cross complaint.</p> <p>Same.—Person of Unsound Mind.—Where a person of unsound mind is brought into court as a defendant, to answer as to any interest he may have in real estate theretofore conveyed by him, the filing of an answer and cross complaint by the guardian of such person is a sufficient disaffirmance of such conveyance.</p> <p>Same.—Consideration.—Insanity of Grantor.—Good Faith.—A person holding land, for which he has paid no consideration, can not defeat an action to set aside his deed on account of the insanity of his grantor, by showing that the grantor had the appearance of being mentally sound, and that he accepted the deed without knowledge of the insanity of such grantor.</p> <p>Same.—Burden of Proof.—When it is established that the grantor of real estate was a person of unsound mind at the time the conveyance was made, the burden is upon the other party to show-that he accepted the conveyance in ignorance of such mental unsoundness, if he relies upon such fact.</p> <p>Appeal.—Practice.—Long-Hand Manuscript.—Bill of Exceptions.—Where the long-hand manuscript of the evidence is filed with, and as a part of the bill of exceptions, that is a sufficient filing; and when thus filed, it may be taken from the bill of exceptions and made a part of the record on appeal without being copied.</p> <p>Same.—■Practice.—Bill of Exceptions.—Where the record containing a bill of exceptions shows that such bill was within the proper time presented to the judge, certified by him as correct^ and ordered to be made part of the record, and bears a certificate of the clerk that such record is a full and complete transcript of the proceedings, papers filed, etc., it sufficiently shows a filing of such bill of exceptions ivithin the proper time, whether it is endorsed as having been so filed or not.</p> <p>Special Finding.—•Exceptions.—Practice.—-Where the court finds the facts specially and states conclusions of law thereon, exceptions to the latter must be taken at the time the decision is made, and exceptions taken afterwards are not available, although the opposite party is present and does not object.</p> <p>Same.—Practice.—Motion for Venire de Novo.—Where a special finding of facts is so defective, ambiguous or uncertain, that it ought to be corrected, the proper remedy is by a motion for a venire de novo.</p> <p>Witness.—Practice.-—Medical Examination of Party.—Where one of the questions at issue is as to the sanity or insanity of one of the parties at a certain time, it is not error for the court to refuse a request of the opposite party, made during the trial, to have such party put in charge of physicians for the purpose of having an examination as to her mental condition, there being no offer to show that her condition was substantially the same as at the time in question.</p>

<p>Drainage.—Petition.—Highway.—Description.—A petition for drainage is not bad for merely failing to give the name of the civil township in which a public highway, which it is alleged will be benefited, is situate.</p>

<p>Railroad.—Fence.—Stations' and Sidings.—Liability for Animals Killed.— • Instruction.—A railroad company is not required to fence its track at stations or sidings where freight is received and discharged, and is not liable for killing animals which enter upon its track at such places, and it is error to refuse to so instruct the jury where there is evidence to which such an instruction is applicable.</p>

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

<p>Injunction.—City.— Street Improvement.— Collection of Unauthorized Assessment.—Injunction will lie to restrain the collection of an assessment for a street improvement levied upon property which the city had no power to assess for such improvement.</p> <p>City.—Street Improvement.—Assessment.—Complaint to Enjoin Collection.— Ordinance.—Yeas and Nays.—Estimate.—Mistake.—Questions as to the taking of the y.eas and nays on the passage of an ordinance, as to the amount of the estimate and as to a mistake in describing the property, can not be presented by a complaint to enjoin the collection of a street improvement assessment.</p> <p>Same.—Appeal from, Precept.— Conclusiveness of Judgment.—-Description.—New Precept.—Where, on appeal by a property-owner from a precept, the proceedings are sustained, and judgment is rendered in favor of the contractor, the latter is concluded by it, if unappealed from, as to all questions before the court, including the validity of the estimate and the sufficiency of the description, and can not take out another precept.</p>

<p>Mechanic’s Lien.—Notice.—Act of1883.—Section 5 Construed.—Under section 5 of the act of March 6th, 1883 (Acts of 1883, p. 140), concerning mechanics’ liens, a verbal notification to the owner or his agent that material is being furnished to or work performed for the contractor, is sufficient to enable a material man or mechanic to acquire a lien.</p> <p>Same.— Woi-d “Notify."—Meaning of.—The word 11 notify,” used in such section, never imports or implies, of necessity, a notice in writing, and such notice will not be required unless it is clear that it was so intended.</p>

<p>Deed.— Reformation.— Mistake.—• Mutuality.— Estoppel.— Contract.— Where one party to an agreement has knowledge of a mistake, and of the other party’s ignorance thereof, and with such knowledge remains silent when he should speak, he is estopped to defeat a reformation by asserting that the mistake lacks mutuality.</p> <p>Same.—Title Rond.—Where one purchases and pays full consideration for land held by his vendor by title bond, and it is agreed that the latter shall cause a conveyance to be made to the purchaser, but, without his knowledge or consent, causes the conveyance to he made to the purchaser’s son, a reformation of the deed can not be defeated on the ground that the mistake is not mutual.</p> <p>Same.—Statute Construed.— Parent and Child.—The operation of section 2974, R. S. 1881, is restricted by subsequent sections to cases in which the party claiming the benefit of an alleged trust, himself created what he afterwards claims to be a trust, and does not prevent a father, who has paid the purchase-money, from, showing that the deed was made to a child through mistake, or contrary to his intention.</p> <p>Same.—Acquiescence.—Burden of Proof. —In a suit to reform a deed, brought within twenty years, the burden is on the defendant to show that there was such acquiescence on the part of the plaintiff, after knowledge of the mistake, as to render it inequitable to grant the relief asked.</p>

<p>Intoxicating Liquob.—Druggist — Physician.—Sale on Sunday.— Written Prescription.—:A sale of intoxicating liquor on Sunday, by a druggist, without a written prescription, is an offence under section 2099, K. S. 1881, although the druggist is himself a physician.</p>

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

<p>Dedication.—Statutory.— User.—Town.—Streets and Alleys. — Streets and alleys of a town, as fixed by continuous user for more than twenty years, will prevail as against a prior invalid statutory dedication.</p> <p>Survey.—Cmmty Surveyor.— Gonclusiveness of Decisions. — Decisions by a county surveyor are only conclusive, wlien not appealed from, in cases where he is called upon to perform a duty enjoined upon him by law.</p>

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

<p>Pleading.—Conversion.— Complaint to Recover Damages.—A complaint to> recover damages for the conversion of personal property need not allege that the plaintiff is entitled to possession of such property.</p> <p>Same.—Joinder of Causes of Action.—Under the fourth clause of section 278, R. S. 1881, a paragraph of complaint to recover damages for conversion may be joined with a paragraph to recover possession of the same property.</p> <p>Conditional Sale.—Personal Property. — Conversion. — Diability of Third Person.—Damages.—A conditional sale of personal property is valid, and if the vendee, without the knowledge or consent of the vendor, sells the property to a third person, who converts the same to his own use, the latter acquires no title as against the original vendor, and is liable to him for the damages sustained.</p> <p>Estoppel.—Pleading.—To constitute an estoppel in pais there must be a showing that the party pleading it was induced to act to his injury by something said or done by the other, or that there was misrepresentation or concealment of a material fact on the part of the latter.</p>

<p>Special Finding.—Failure to Find Facts.— Venire de Novo.—Where a special finding is so indefinite, by reason of an omission to find the facts, that it is incapable of supporting any conclusions of law, or of forming the basis of any judgment on the issues involved, a venire de novo should be granted.</p>

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

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

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

<p>Telegraph Company.—Penally.—Negligence.—Act of1885.—No penalty is recoverable under the act of April 8th, 1885, concerning telegraph companies, for a mere negligent omission to transmit a message.</p>

<p>Obiminal Law. — Forgery.—Indictment.— Uncertainty.—A written instrument, reading, “ September 4,1886. Mr. T. Hemphill: Please let Charles Shannon have one dress pattern, and oblige (signed) Theodore Points,” is so uncertain that the averment of extrinsic facts, showing its fraudulent tendency, is necessary to the sufficiency of an indictment charging forgery.</p>

<p>Mortgage.—Eminent Domain.—Taking Mortgaged Properly for Street.—Mortgagee Entitled to Damages Awarded.—The mortgagee of land which is taken by a city for a public street is an owner within the meaning of the statute governing condemnation proceedings, and may recover from the city the damages awarded, notwithstanding the amount has already been paid to the mortgagor.</p>

<p>Cbiminai, Law.—•Conspiracy.—JEhidenee.—Declarations of Co-Conspirator.— Where a conspiracy hás first been' established by sufficient proof, every declaration or act of any one-of the conspirators, during the pendency, of the criminal enterprise, in pursuance of the original plan and with reference to the common object, is competent evidence against each of. them. ' y</p> <p>Same.—Forgery.—Conspiracy.—System.—Proof of Other Forgeries, -yWhere, on the trial of one charged with the forgery of a promissory note, it is shown that the crime in question is one of a system of like crimes committed by the defendant in pursuance of a conspiracy, other notes forged, by him during, the pendency of the conspiracy and purporting to be executed by different persons, are admissible in evidence against him.</p>

<p>Common Carrier.—Evidence.—Bill of Lading.—Parol Agreement to Forward by Particular Line.“-Where a shipper accepts a bill of lading which designates no route by which the consignment is to be forwarded after reaching the terminus of the contracting company’s line, it is not competent to prove a prior parol agreement to forward by a particular line.</p> <p>Same.— When First Carrier May Select Forwarding Line.—Contract.—Provisions Supplied by Law.—Contradiction by Pavol.—The shipper, in such case, authorizes the first carrier to select any usual or reasonably direct and safe route by which to forward the consignment beyond its line, and this provision, being imported into the contract by law, is as unassailable by parol as the express terms of the contract.</p> <p>Same.—Breach of Common Lato Duty.—Evidence.—Where it appears that goods were received for shipment under a written contract set up in one paragraph of complaint, there can be no recovery under another paragraph counting on a breach of the carrier’s common law duty, and evidence of a parol agreement is not admissible under the latter paragraph.</p>

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

<p>Judgment.—Collateral Attach.—A judgment, regular on its face and one which the court had jurisdiction to render, can not be attacked collaterally.</p> <p>Instbuctions to Juby.— Verdict.— When Court May Direct.—It is not error-for the court to instruct the jury what their verdict shall be, where-the controlling facts are admitted, or are not controverted in any essential respect.</p> <p>Evidence. — Ejectment. — Materiality. — Evidence offered in an action of ejectment, by which it is proposed to show that all the matters in difference between the parties concerning the real estate in dispute had been compromised and adjusted, should be excluded where nothing has, been shown as to the materiality of the proffered evidence, or the manner in which the alleged compromise was made.</p>

<p>Judgment.—Qottateral Attack.—A party against whom an unauthorized or inequitable judgment has been obtained, whether by fraud or mistake, can not treat the judgment as invalid, until he has taken some proceedings known to the law to set it aside, or to secure its modification.</p> <p>Subbogation.—Payment of Debt of Another.—One who, for the protection of his own property, is compelled to pay a debt, to which he is a stranger, and for the payment of which another is either legally or equitably bound, becomes entitled, on the principles of subrogation, to avail himself of all the remedies to which the person to whom the payment was made was entitled.</p> <p>Sam-e.—Inability of Party for Whose Use Money has been Paid.—In such case, the party so paying money for the protection of his property, may maintain an equitable suit as for money paid to the use of the other.</p> <p>Same.—Judgment.—Payment in Pursuance of.—Where money has been paid in pursuance of a judgment, such judgment can not be interposed to prevent a recovery, in case the person receiving the money so paid fails to discharge an obligation against himself, which obligation, as a result of the same judgment, it became his duty to pay out of the money so received.</p>

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

<p>Bailment.— Warehouseman.—Sale.—Commingling of Crain.—Estoppel.—Innocent Purchaser.—Where one deposits wheat for storage, knowing that it, is to be commingled with wheat purchased by the owner of the warehouse, and that the latter is selling and publicly shipping from the-common mass, he thus confers an apparent ownership and authority to sell, and is estopped to assert title as against an innocent purchaser in the usual course of business.</p>

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

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

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

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

<p>Mortgage.— Promissory Note.— Trustee.— Agency.— Church. — Pleading.— Where a note and mortgage are executed by several persons, without’ anything to show that they are acting as trustees or agents, or in any official or representative character, such note and mortgage are the obligations of the several makers; hut where it is alleged in a complaint thereon that a church organization, which is made a defendant, being in debt and having an unfinished building, applied to the plaintiff through such persons, as its trustees and agents, for a loan, that the loan was-made to and tho money received by the church and applied to the payment of its debts and the completion of its building, and that the sum loaned is due and unpaid, a cause of action is stated against the church-</p>

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

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

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

<p>Kaii/road.—Obstruction of Waler-Flow.—Liability to Land-Owner.—A railroad company is not liable to a land-owner for injuries caused by the accumulation of surface-water on Lis premises, by reason of the construction of embankments on its right of way.</p>

<p>Chattel Mortgage.—Partnership.—Fraud.—Debtor and Creditor.— Fbfewitary Assignment.—A chattel mortgage given by a new firm to secure a bona fide indebtedness of the old partnership, or of an individual member of the latter, is not therefore fraudulent as against creditors of the new firm, nor does the fact that an assignment for the benefit of creditors is subsequently made, affect its validity.</p> <p>Same. —Mortgage of Merchandise. —Benewah of Stock.—A stipulation in a chattel mortgage covering a stock of merchandise, that additions and renewals of the stock shall be deemed to be covered by the mortgage, will not vest title thereto in the mortgagee unless followed by possession by the latter before the rights of others attach, but it does not render the mortgage invalid on its face.</p> <p>Same. — Possession by Mortgagor—Power to Sell.—A fraudulent intent can not be judicially inferred from the fact that the mortgagor, by the terms of the mortgage, may remain in possession, with leave to sell, even though he be not required by a stipulation in the mortgage to account for the proceeds of the sales.</p> <p>Same.—Pleading.— Allegations of Fraud. — A genera] averment of fraud, without more, is nqt sufficient to defeat a chattel mortgage. Whether it is fraudulent or not is a question of fact to be determined according to the circumstances of each case.</p>

<p>CoiraiA-CT.—Specific Performance.—Sale of Peal Estate.—Statute of Frauds.— Husband, and Wife.—Pelease of Inchoate Interest.—Mortgage.—Debtor and. Creditor.—A verbal agreement by a creditor with the wife of his debtor, that in consideration that she shall join her husband in a mortgage of real estate belonging to the latter, thus releasing her inchoate interest, he will, upon acquiring title through foreclosure and sale, convey to her a certain part of the property, is a parol contract for the sale of land within the meaning of the statute of frauds, and if the mortgagee refuses to convey, specific performance can not be enforced.</p> <p>Same.—Part Performance.—Payment of Consideration.— Continuation of Precedent Possession.—Neither the continuation of a precedent possession, nor the payment of the consideration, in whatever form, is such part performance of a parol contract for the sale of land as will take it out of the statute of frauds.</p> <p>Same.—Refusal to Perform Contract to Convey.—Fraud.—A refusal to fulfil a contract to convey is a moral wrong, but is not, in itself, such fraud as will justify a decree for a specific performance notwithstanding the .statute of frauds.</p>

<p>Criminal Law.— Arson.— Indictment.— Occupancy of Dwelling.-—In an indictment for arson, it is unnecessary to charge who was the occupant of the dwelling-house alleged to have been destroyed.</p> <p>Same.—Husband and Wife.—If a man unlawfully, feloniously, wilfully and maliciously sets Are to and burns the dwelling-house of his wife, wherein she permits him to live with her as her husband, he is guilty of arson, though he may have furnished the money to build the house.</p> <p>Same.—-Weight of Evidence.—The Supreme Court will not disturb a verdict in a criminal case, on the sufficiency or weight of the evidence, where there is not an absolute failure of evidence on some material point.</p> <p>Instructions to Jury.—Presumption on Appeal.—Practice.—-Where the court below erred in refusing to give to the jury instructions asked, but the record does not show that it contains all of the instructions given, it will be presumed on appeal, in aid of the judgment, that the law of the instructions refused had been given by the court of'its own motion..</p>

<p>Dbaotagb.—Highway.—Assessment Against Township.—Enforcement by Mandate.—A township may be assessed, in a drainage proceeding, for benefits to a highway, and when the assessment is properly made, payment may be enforced by mandate.</p>

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

<p>Will.—Construction.— Vested and Contingent Remainders.—Tlie law favors vested estates, and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested.,</p> <p>Same.—Survivorship.—Intention.—Survivorship is generally, in the absence . of an expressed or fairly implied intention to the contrary, construed to refer to the testator’s death.</p> <p>Same.— Vested Remainder.-—A testator devised certain land to his wife for life, providing that “ at her death the same shall be the property of and pass to my daughter, L., in fee; but if she, said L., be not living, then to her heirs forever.”</p> <p>Meld, that the survivorship referred to the testator’s death, and that the daughter took a vested remainder in fee.</p>

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

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

<p>Married Woman.—Promissory Note.—Consideration.—Principal and Surety. —Pleading.—Where, in an action against a married woman, on a promissory note, she answers her coverture, and that she executed the note as surety for a co-defendant, a reply that the consideration of the note was-personal property purchased by her for use in her separate business, is. good, without alleging that the property was delivered to or received-by her.</p> <p>Same.—Purchase of Pei'sonal Properly.—Delivery to Third Pei'son.—Evidence. —For evidence held sufficient to sustain a finding against a married', woman, holding her liable as principal upon a promissory note executed for personal property contracted for and delivered to another, see’ opinion.</p>

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

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

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

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

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

<p>Easement.—Naked License.—Revocation.—A mere naked license to pass over the lands of the licensor is revocable at the pleasure of the latter.</p> <p>Same.—Prescription.—Claim of Right.—There can he no title by prescription where the user is not under claim of right.</p> <p>Same.— User for Twenty Years. —Where there is an uninterrupted user of a way for twenty years, under claim of title, an easement therein is established, even though the original claim was not well founded.</p> <p>‘Same.—Appurtenant Way.—Where the owner of land annexes to part of it a right of way as appurtenant thereto, and then conveys the land to which the way is made an appurtenance, his grantees, near and remote, acquire an easement.</p>

<p>'Gehmutaii Law.—Trial by Special Jury.—Under the statutes of this State the courts have power, when it becomes necessary, to call a special jury to try a criminal cause.</p> <p>■Same.—Instructions.— When Defects in, Cured.—An erroneous instruction, unless it be plainly withdrawn, can not be corrected by giving an accurate but inconsistent instruction on the same subject; where, however, an inaccuracy in one instruction consists in its being merely incomplete or obscure, it may be remedied by another instruction.</p> <p>Same.—Reasonable Doubt.—Reversal of Judgment.—In order to justify the reversal of a judgment for a merely inaccurate definition of what constitutes a reasonable doubt, it must .very plainly appear that the defendant was thereby prejudiced in his substantial rights.</p> <p>.Same.—Prosecuting Attorney.—Argument.—Reference by the prosecuting attorney, in his closing argument to the jury, to recent riots in a city of .another State and the burning of the court-house by a mob, attributing the cause to the lax administration of the criminal law in that city, but not alluding to the defendant in that connection, is not a transgression of his privileges.</p> <p>Same.—■Misconduct in Argument.—A statement by the prosecuting attorney, in argument to the jury, that he has personal knowledge of the fact that the defendant is reputed to be a hotel thief, and that he has been published and portrayed in the Police Gazette as such, is misconduct, but where it appears from the evidence that a conviction was in any event inevitable, and that the punishment assessed is not excessive, the judgment will not be reversed.</p>

<p>Mandate.—Return.—•Faxes in Aid of Railroad. —Reinstatement on Duplicate. —Agreement to Accept Less than Full Amount.—Election Expenses.—Upon a petition for a mandate to compel county commissioners to reinstate on the duplicate taxes assessed in favor of a railroad company, a return showing that in a prior proceeding the beneficiaries of the tax had •agreed to accept a certain sum, if paid within sixty days, in full satisfaction of all claims on account of such tax, and that each taxpayer who should pay his proportion of such sum should be entitled to a receipt in full, and further showing that such per cent, had been collected from all who paid within sixty days, and from all others the full amount assessed against them, which had been paid over to the beneficiaries, excepting only the expenses of the election, is good, even though the withholding of the election expenses was wrongful.</p> <p>Same.—•Payment of Less Sum will not Discharge Greater.—Extent of Rule.— The rule that the payment of a less sum will not discharge a greater, only applies where the sum is liquidated, and is due upon contract. It can not apply to a claim founded upon a statutory proceeding assessing .a tax in aid of a railroad corporation.</p>

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