Volume 110 — Indiana Reports

<p>Pleading.—Amended Complaint.—Answer.—Theory of Trial.—Where an amended complaint is filed, and the plaintiff tries the case upon the theory that answers filed ío the original complaint are addressed to the complaint as amended, he h hound by that theory on appeal.</p> <p>'Same.—Demurrer.—Form.—A demurrer to answers, “ that neither of said paragraphs states facts sufficient to constitute a defence to plaintiff’s complaint,” is sufficient.</p> <p>Same.—Answer in Mitigation of Damages.—Harmless Error.—Where evidence in mitigation of damages is admissible under a paragraph left standing, an error in sustaining a demurrer to another paragraph pleading facts in mitigation, is harmless.</p> <p>Replevin.—Judgment.—Conclusiveness.—Ownership of Property.—The judgment in a.replevin action is conclusive as to all questions that were litigated or might have been litigated under the issues, including the question of ownership.</p> <p>■Same.—Regularity of Proceeding.—Bond.—Consideration.—Estoppel.—Principal and Surely.—The plaintiff in an action of replevin, and his sureties, are estopped to deny the regularity of the proceeding, or to say that there was no consideration for the bond executed by them to secure possession of the property.</p> <p>Same.—Delivery.—The delivery of the property to the plaintiff' in an. action of replevin is a sufficient consideration for the bond given to. secure possession.</p> <p>Same.—Evidence.—Proof of Contents of Writ by Parol.—Where the contents of a writ are proved by parol evidence, without objection, that method of proof is sufficient.</p>

<p>Gravel Road.—Grossing by Railroad.— Compensation.—Where a corporation, by an act of 1849, was granted a public highway for the purpose of constructing and maintaining thereon a plank road, but subsequently forfeited its rights in such highway, railroad companies which, by the same act, were given power to lay tlieir tracks across the plank road without compensation, upon such forfeiture, ceased to have any rights under that act, and can assert none as against a gravel road which is afterwards maintained on the same highway by another corporation.</p> <p>Same.—Right of Railroad to Cross Highway Without Compensation.—Section 3903, R. S. 1881, conferring upon railroad companies the power to cross highways without compensation, has reierence to ordinary highways, controlled by the public authorities and maintained by taxation, and does not embrace a highway which is used for gravel road purposes by a private corporation under a grant from the board of county commissioners.</p> <p>' Same.—■Private Sights in Highway.—Talcing by Sailroad Without Compensation.—Damages.—Maxim Do Minimis non Curat Lex.—A gravel road company has property rights in a highway used by it, under a grant, for gravel road purposes, a.nd where a railroad company lays its track across such road without the consent of the gravel road company, and without proceedings to condemn and the payment or tender-of damages, the latter corporation has a right of action, and is entitled to at least nominal damages, and in such a case the maxim de minimis non curat lex will not apply.</p>

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

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

<p>Judgment.—Debt of Record.—Action Upon.—Execution.—A judgment is a debt of record, and, whether foreign or domestic, an action may bo maintained thereon in any court of competent jurisdiction for the recovery of such debt, even where it appears that collection could be enforced by execution.</p> <p>.’Same.—Pleading.— Written Instrument.—Copy.—Record.—A judgment is not a written instrument within the meaning of section 3C2, R. S. 1881, and the filing of a copy thereof with a pleading will not make it a part of the record.</p> <p>Same.— Attachment.— Garnishmient.— Injunction.-— Fraudulent Conveyance.— Action Relating to Real Estate.— Venue.— Jurisdiction.—A suit may bo maintained in the circuit court of one county, upon a judgment rendered therein, to restrain the judgment debtor from disposing of securities taken upon a sale of land situate in another county, and to obtain ■an order against the purchaser, summoned as garnishee, requiring him to pay into court an amount sufficient to satisfy the judgment, although ■the complaint incidentally alleges that the conveyance was made to defraud the plaintiff, and to hinder and delay the collection of the judgment.</p> <p>'Same. — Promissory Note.—Endorsement.—Consideration.— Good Faith.—Ansirer.—Ail answer by the judgment debtor, that he had sold and transferred by endorsement, in good faith, all of the notes before the filing of the complaint and the granting of the restraining order, but not showing any consideration, or that any purchaser had become the holder in good faith, without notice and for value, is bad.</p> <p>Same.—Rad Complaint.—Reversal of Judgment.—Supreme Court.—Where the judgment against a defendant to an action rests upon an affidavit in garnishment and his answer as garnishee, and not upon the averments of the complaint, the judgment will not he reversed merely because the complaint, to which he did not demur, stated no cause of action against him.</p> <p>•Same.—Interlocutory Order.—Motion to Dissolve Restraining Order.—Appeal.— Where there is no appeal from an interlocutory order overruling a motion to dissolve a temporary restraining order, but the cause in which such order is made is tried upon its merits, and a final judgment rendered from which an appeal is taken, the ruling on the motion to dissolve, even if erroneous, is not available for the reversal of the judgment.</p> <p>-Attachment.—Non-Residence of Garnishee.—Pleading.—An answer in abatement by a defendant summoned as a garnishee, alleging his residence in another county, hut not showing that the attachment defendant has not been personally served with process, or that no property has been attached in the county where the action is brought, or that no resident garnishee, who is indebted to the attachment defendant or has property in his hands subject to the attachment, has been summoned, is bad on demurrer.</p> <p>Supkeme CoTJUT.—Sufficiency of Complaint.—Joint Assignment of Error.— Whore a complaint states a cause of action against one of two appellants, a joint assignment of error in the Supreme Court, challenging the sufficiency of the complaint, is not available to the other appellant.</p> <p>Basie.—Judgment.—Objections to.—Objections to the form or substance of a judgment can not be made for the first time in the Supreme Court.</p> <p>Same.—Presumptions.—Affirmative Showing of Error.—Every reasonable presumption is indulged in favor of the finding and judgment of the trial court, and unless the record on appeal excludes such presumptions, and affirmatively shows the existence of material- error, the judgment will be affirmed.</p> <p>Pleading.—Argumentative Denial.— Harmless Error.— Where a general denial is pleaded, the sustaining of a demurrer to another paragraph of answer, which is in effect only an argumentative denial, is at most only a harmless error.</p>

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

<p>Insurance.—Action cm Policy.—Defence that Assured Purposely Destroyed Property to Defraud Company.— Preponderance of Evidence.— Seasonable Doubt.—Instruction.—Where, in an action upon a policy of insurance, it is answered that the assured purposely burned the property with the intent to defraud the insurance company, it is sufficient to establish such defence by a preponderance of the evidence, and an instruction that its truth must be established beyond a reasonable doubt is erroneous.</p>

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

<p>Replevin Bail.—Remedy of, Against Judgment Defendants.—Execution.— Principal and Surely.—Where the replevin bail has been compelled to pay the judgment, he may have execution thereon against all the judgment defendants, and may enforce the collection thereof against one who is surety of the other defendants in the judgment, though he may have known of such suretyship at the time he became replevin bail, unless it appear that the surety objected to any stay of execution thereon at the time judgment was rendered.</p>

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

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

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

<p>Drainage.—Notice.—Appearande.— Waiver. — By appearing and filing a remonstrance against a drain, without objecting to the notice or proof thereof, all questions pertaining to the jurisdiction of the court over the remonstrant’s person are waived.</p> <p>Same.—Remonstrance.—Sufficiency of Notice.—Viewers’ Report.—A question as to the sufficiency of the notice is not raised by assigning it as a cause of remonstrance. Nor is the insufficiency, or mere formal irregularity, of the report of- the viewers, which can be ascertained by an inspection of the report itself, a cause of remonstrance.</p> <p>'Same.—Supreme Court.—Practice.—Questions of law raised before the board of county commissioners are not available in the Supreme Court unless presented to and ruled upon in the circuit court.</p> <p>Evidence.— Witness.—Examination.—Practice.—Available error can not be predicated upon a refusal of the trial court to permit an answer to a question propounded to a witness, unless there is a statement of the testimony expected in response thereto.</p> <p>Instbuotions to Juby.—Presumption on Appeal.—In the absence of a showing to the contrary, it will be presumed on appeal that the trial court gave to the jury all necessary and proper instructions.</p>

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

<p>Criminal Law.—Exceptions.—Bill of Exceptions.—Errors of law occurring’ at the trial, in a criminal prosecution, must be excepted to at the time the decision is made; and exceptions so taken will constitute a part of the record if shown by a bill of exceptions, signed b,y the judge and filed by the clerk at or before the time the j'udgment is rendered, or within such time thereafter as the court may allow, not exceeding sixty days.</p> <p>Same.— Larceny.— Intent.— Malicious Trespass.— Evidence.—Por evidence tending to show an intent to remove and maliciously destroy personal property of another, but held not sufficient to authorize the inference of a felonious intent to steal the same, see opinion.</p>

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

<p>Gbiminal Law.—Indictment.—Name.—Affix of “ Junior ” or “ ¡Senior.”—The word “junior” or “senior,” attached to the name of a person referred to in an indictment, is a mere matter of description, constituting no part of the name, and where such word is affixed to the name of the defendant in one part of the indictment and is omitted in another, the .sufficiency of the indictment is in no wise affected.</p> <p>Same.—Intoxicating liquor.—Sale to Habitual Drunkard.—Notice.—Section 2093, R. S. 1881, does not make it an offence to sell to a person whom the seller simply knows to be in the habit of becoming intoxicated. The offence consists in selling to such person, after the proper notice in ■writing, of his habit in that respect.</p> <p>Same.—Indictment.—Notice to Seller.—•^Residence.—An indictment charging a sale of intoxicating liquor to a person in the habit of becoming intoxicated, which does not aver that, prior to such sale, the defendant had been notified in writing, by some citizen of the township or ward wherein such person resided at the time the notice is given, that the latter was in the habit of being intoxicated, is insufficient, and a motion to quash should be sustained.</p>

<p>Voluntary Assignment.— Omitted Property.— Validity of Deed.—A deed of assignment, purporting to be made in pursuance of the act providing for voluntary assignments, and to assign all of the debtor’s property for the benefit of all his creditors, is not rendered invalid by the omission of property, or by the fact that a part of it had been previously conveyed in fraud of creditors.</p> <p>•Same.—Effect of Assignment.—Failure to Describe Property.—Prior Fraudulent Conveyance.—Subsequent Judgment Creditor.—Jjien on Undescribed Property. —A deed of assignment under the statute, from the date of recording, by force of the law, carries the title to all the assignor’s property into the trust, to be administered for the equal benefit of all his creditors, whether the property be described, withheld, or previously conveyed in fraud of creditors, and a creditor who obtains a judgment and execution after the assignment, but before omitted or fraudulently conveyed property is actually conveyed to the assignee, does not acquire a lien thereon.</p>

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

<p>Easement.—Interest in Land.—Parol Contract.—Statute of Frauds.—Part Performance.—An easement is an interest in land, and a parol contract creating it is void under the statute of frauds, unless such a part performance is shown as to take it out of the statute.</p> <p>Same. — Possession. — Continuous User. — Where immediate possession is taken and there is a continuous user, the contract is taken out of the statute.</p> <p>Same.—License.—Consideration.—Bevocation.—Where possession of a right of way over the land of another is taken under a license founded on a consideration, such license can not be revoked.</p> <p>Same.—Married Woman.—Defence of Coverture.—Notice.—An easement in the land of a married woman may be acquired without a deed; but if it were otherwise, a purchaser of the land, who takes with notice of an existing easement, can not avail himself of the coverture of his grantor to defeat it.</p> <p>Same. — Possession.—Notice to Purchaser.—Possession of an easement is sufficient to put a purchaser of the land upon inquiry, and means of knowledge is equivalent to knowledge.</p> <p>Same.—Passes With Grant of Land.—An easement passes with a grant of the land to which it is appurtenant, and is a burden upon the servient estate in the hands of subsequent owners.</p>

<p>Pabties.—Practice.—Application to he Made Party Defendant.—Division of Township.—In an action by the trustee of a new township, created by the division of a civil township, for a writ of mandate against the county auditor to compel an equitable division and apportionment of the various funds belonging to the original township at the time of the division, it is not error to deny the application of the trustee of the latter to be made a party defendant to the proceeding, he showing no substantial interest in the controversy.</p>

<p>County Commissioners. — Vacancy. — Election to Fill. — Commencement of Term.— Certificate of Election.—Where a county commissioner is-elected to fill a vacancy, he holds during the unexpired term of his predecessol only, and where he is elected to succeed himself his term under the latter election begins immediately upon the expiration of the preceding term, without regard to the date of commencement fixed in his certificate of election, and his term is not extended by his failure to qualify until the latter date.</p> <p>Same.—Failure to Elect. —Bolding Over.—Where the term of a county commissioner who was elected in 1882 expired in December, 1885, but no person was elected in 1884 to succeed him, he was entitled to hold over until his successor was elected and qualified; and where a successor was elected in 1886, under the provisions of section 4678, B. S. 1881, to fill the vacancy, the latter is en titled to the office immediately upon qualifying, hut for the unexpired term only.</p> <p>Same.—Act of 1885.—Construction.—The effect of the act of March 7th,. 1885, regulating the terms of office of county commissioners, was such as to give commissioners then holding, whose terms had become confused and had been unlawfully encroached upon by others, and whose successors had not then been elected, the right to hold three years, and if that period expired leaving a fraction of a term, they are entitled to hold such fraction to the end of the regular term of their respective districts, and until their successors have been elected.</p>

<p>New Tbiae.—Newly Discovered Evidence.—Impeachment.—Where newly discovered evidence proves a distinct and material fact, a new trial should be granted, even though such evidence may have the additional effect of impeaching the testimony of the opposite party.</p> <p>Same.—Complaint for.—Averments not Supplied by Exhibited Evidence.—Evidence made an exhibit to a complaint for a new trial after the term can not supply any averments essential to the validity of the complaint, and a question as to whether diligence is shown must be determined from the allegations in' the body of the pleading.</p> <p>Same.—Diligence.—Inquiries.—Showing as to.—A complaint for a new trial, on the ground of newly discovered evidence, must state the facts constituting the diligence used to discover such evidence, the place, time and circumstances under which inquiries were made, and it must also show that the evidence was not discovered during the term at which the case was tried.</p> <p>Same.—Sufficient Averments of Diligence.—-Where the new evidence is an account book kept by the opposite party, which is shown to have been in his possession, allegations in the complaint for a new trial, that inquiries concerning tlie book had been made oí such party upon the trial, when he was testifying as a witness, and that he had denied that. such a book was ever in existence, show diligence.</p>

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

<p>Pleading.—Demurrer.—Conclusions.—A demurrer admits as true all that is well pleaded, but it does not admit conclusions of law stated by the-pleader.</p> <p>Promissory Note.—Consideration.—Purchase of Land.—Deed.—Possession. —Assignee in Bankruptcy.—Pleading Conclusions.—To a complaint on promissory notes, taken by the plaintiff after maturity by assignment from an assignee in bankruptcy, it was answered that the consideration, for the notes was the purchase of certain land, a deed and possession thereunder; that the land was sold to the defendant by the assignee in bankruptcy; that by the terms of the sale the defendant was to have a deed from such assignee and possession thereunder, neither of which he had received, although demanded, and that the land is held adversely to him; that the bankruptcy proceedings have been closed, and the assignee discharged from his trust; and that the notes in suit are the only notes given for the land.</p> <p>Held, that the answer is not sufficient on demurrer for want of facts.</p>

<p>Injunction.—Judgment.—Lien.—Levy.—Sale.—Leal Estate.—The owner or mortgagee of land levied on under a judgment which is not a lien on it may maintain a suit to enjoin a sale.</p> <p>Judgment.—Expiration of Lien.—Leal Estate.—Execution.—Sale.—Injunction.—Where a party levies on land, and insists upon his levy, despite an inj unction obtained by a third person, he can not enforce the lien of his judgment against another parcel of land after the lapse of ten years from the date of its rendition, and may be enjoined. Section 608, R. S. 1881.</p>

<p>CJeimiítau Law.—Bill of Exceptions.—Practice.—Supi-eme Court.—The Supreme Court will not pass upon the evidence, unless the bill of exceptions affirmatively shows that it contains all the evidence given in the -trial court, and this requirement is not met by a statement in the bill, that “ this was all oí the evidence offered by the plaintiff and the defendant on the trial of this cause.”</p>

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

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

<p>Railboad.—Master and Servant.—Line of Duty.—Ejecting Passenger from. Train.—Complaint for Injury.—An averment in a complaint against a railroad company for an injury sustained in being ejected from a train, that the injury was inflicted by the “ defendant, acting through its agents and servants,” is equivalent to an averment that the defendant acted through its duly authorized agents and servants, and is sufficient to present the question at the trial as to whether the persons who performed the acts charged were the agents and servants of the defendant, and acting at the time within the line of duty.</p> <p>Same.— Wilful Injury.— When Complaint Sufficiently Specific.—A complaint, against a railroad company, alleging that the plaintiff was admitted as-a passenger into a train, and that he was wilfully and maliciously ejected therefrom by the defendant, acting through its agents and servants, while it was in motion, whereby he was injured, is sufficiently specific, without describing the kind of train, the particular servant or agent, or the time of day the train left the station where the plaintiff "took passage.</p> <p>Same.—Brakeman.—Authority to Ejeet Passenger.—Liability of Company for Wanton Injury.—A brakeman, in the absence of express orders, has no authority to eject a passenger from a train, yet a railroad company is liable for an injury wantonly inflicted by him on a passenger travelling on a train on which he is acting.</p> <p>Same.—Damages.—Evidence as to Effects of Injury.—In an action for a personal injury, an averment that the plaintiff had “ become wholly crippled and maimed, and prevented from actively pursuing liis business for life,” authorizes tlie admission of evidence that the injury would be deleterious to the plaintiff’s nervous, as well as to his general, system, and that it would diminish his strength and power of physical endurance.</p> <p>Interrogatories to Jury.—Antagonistic.— General Verdict.—Where answers to interrogatories antagonize and destroy each other, the general verdict remains unimpaired and controls the judgment.</p> <p>■Supreme Court.— Weight of Evidence.—Practice.—^here there is evidence tending to sustain the verdict in all essential respects, it will not be disturbed on appeal, notwithstanding the fact that the weight of evidence seems to be overwhelmingly against it.</p>

<p>Reward.—Apprehension of Oriminal.— When Amount of Reward Recomes Due. ■—Pleading.—Complaint.—Whei;e a reward is offered for the detection,, apprehension and conviction of a criminal, and the service is successfully rendered by a party who detected and arrested such criminal, and furnished such information as resulted in his trial and conviction, the amount of the offered reward becomes due upon the performance of the service, in the absence of a stipulation to the contrary ; and where, in an action to recover the reward, the complaint sets out the above facts, it is sufficient without the technical averment that the amount “ is due and unpaid.”</p> <p>Same.—Contract.— Withdrawal of Offered Reward.—Instruction.—In an action to recover the amount of an offered reward, for the apprehension and conviction of a criminal, where the evidence shows a contract between the parties, which had been acted upon by the plaintiff, who had detected, arrested, and furnished the necessary information for the conviction of the offender, it is not error to refuse an instruction to the jury to the effect, that although the defendant may have agreed with the plaintiff' to pay him a certain sum for such arrest, etc., yet, if before such conviction he withdrew the offer of the reward, or his agreement to pay the same, with the knowledge and consent of plaintiff, the latter could? recover nothing.</p> <p>Same.—-Defence.—City Marshal.—In such case, it is no defence that at the-time of the performance of the service, the plaintiff was a city marshal, and did nothing more than the law required of him in the discharge of' his official duties.</p> <p>Same.—-For an instruction held to correctly state the law in such case, see opinion.</p> <p>Practice.—Instruction.— Withdrawal of Paragraph of Complaint.—A defendant can not complain of an instruction to the jury which eliminates, from the case a paragraph of the complaint.</p>

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

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

<p>Estoppel.—Beal Estate.-—Conveyance.—Representation of Interest.—A widow who sells and conveys a life-estate, representing that to be all her interest, is not thereby estopped to assert, as against her grantee, a title in fee, held at the time of the conveyance as heir of a deceased child.</p>

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

<p>Appeal.—Injunction.—Contempt.—An injunction is not dissolved, or its force and effect impaired, by an appeal and the issuing of a supersedeas, and the subsequent doing of the prohibited acts is a contempt.</p> <p>Injunction.—Decree.—Validity.—Jurisdiction.—Collateral Attack.—Contempt. —The validity of an order of injunction, granted in a case where jurisdiction exists, can not be brought in question in proceedings on an attachment for contempt.</p> <p>óSame.—Disturbance of Possession.—The disturbance of the possession of real estate may be prohibited by injunction.</p> <p>'Bill oe Exceptions.—Showing as to Evidence Given.—A statement in a bill of exceptions, that it “ contains all the testimony offered in evidence on the trial,” is not a sufficient showing that the bill contains all the evidence given.</p>

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

<p>Judgment.—Payment by One Primarily Liable.—Satisfaction.—Assignment.— Payment of a judgment by one primarily liable is an absolute satisfaction of it, notwithstanding an assignment to the payor and an agreement that the judgment shall be kept alive for his benefit.</p> <p>Same.—Defending Action in Name of Party.—Estoppel of Third Person.—One who, though not a party to the action, appears and defends in the name of a party, is concluded by the judgment rendered therein.</p> <p>Principad and Subety.—Action after Judgment to Establish Suretyship.— Execution.—After a judgment has been rendered, one of the judgment defendants, who occupies the relation of surety, may maintain an action to determine that fact and to establish his right to an execution.</p>

<p>"'Voltjntaby Assignment.— Prior Mortgage.—Foreclosure.— Jurisdiction.— Where a debtor makes a general assignment, under the statute, for the benefit of his creditors, a prior mortgagee is not bound to sue .for the foreclosure of his mortgage in the circuit court, where the matter in assignment is pending, hut he may sue in any other court of competent jurisdiction, even though with his consent all the debtor’s property has been delivered into the possession of the assignee.</p> <p>■Same.—Mortgage Made in Contemplation of Assignment.—A mortgage, made in good faith by an insolvent debtor, covering all of his property, to secure a bona fide debt, although executed in contemplation of an assignment which follows on the succeeding day, is not carried into and made a part of the assignment, hut it will stand as a valid and enforceable lien, even where the mortgagee has knowledge of the contemplated .assignment.</p>

<p>Evidence.—Conversation. — Admissions. — JRailroad. — Injury at Crossing.— Statutory Signals.—In an action against a- railroad company to recover-damages for an injury at a highway crossing, alleged to have been caused by the failure of the defendant to give the signals required by law, a conversation between the injured party and- the engineer of the train, a few minutes after the accident, concerning the giving of the signals and containing admissions by the former, is admissible in evidence.</p>

<p>Negligence.—Railroad.—Permitting Fire to Escape from Right of Way.—Complaint.—A complaint, alleging that coals negligently dropped and sparks emitted from the locomotive engine of the defendant, a railroad company, set fire to an accumulation of dry grass, weeds, rubbish and other combustibles, negligently suffered to gather beside the defendant’s track and on its right of way, which fire, through the medium of said combustibles, was negligently allowed by the defendant to escape from its right of way and communicate to plaintiff’s land and to the roots of growing grass and to the hay in his field, thereby burning and consuming it, is sufficient to show that the fire was permitted to escape by the negligence of the defendant.</p> <p>Same.—Negativing Contributory Negligence.—An averment in the complaint, that the fire and damage were not caused by any negligence on the part of the plaintiff, sufficiently negatives contributory negligence.</p> <p>Same.—Inference of Negligence.—Negligence can not be inferred, prima facie, from the fact alone that fire was communicated to adjacent property by-sparks from a locomotive engine, but the party alleging negligence musí establish it, by proof. Pittsburgh, ele., li. W. Co. v. Hixon, 79 Ind. Ill, criticised.</p> <p>Same.—-Damages.—Evidence.—Meadow Land.—Destruction of Roots of Grass.. —Cost of Re-Seeding.—Rental Value— Where it is shown in such case that the land to which the fire was communicated was valuable only as meadow land, and that the roots of the grass growing thereon were destroyed, evidence ol the cost of re-seeding and of its rental value during the time it would not produce a crop of grass, is admissible upon the question of damages.</p> <p>Pleading.— Uncertainly.—Demurrer.—Motion to Make Specific.—Practice.— Objections to a pleading, upon the ground of indefiniteness or uncertainty, can not be reached by a demurrer for want of facts, but only by a motion to have it made more specific.</p> <p>Practice.—Interrogatories to Jury. — Indefinite Answers.— Venire de Novo.— Where the general verdict is perfect and complete in every particular, a venire de novo ought not to be granted, merely because the answers of the-jury to interrogatories submitted to them are “ irregular, indefinite,, improper and uncertain.”</p> <p>Supreme Court.—Lam of the Case.—Instruction to Jury.—When the Supreme Court decides a case, the questions passed upon are irreversibly settled between tbe parties, in all subsequent stages of the action, and an instruction following the doctrine declared on the first appeal, although not strictly accurate, will be sustained on a second appeal.</p>

<p>Mortgage.—Foreclosure.—Sheriff’s Sale.—Execution.—Mista,he.—Where, in a foreclosure proceeding, there is a decree foreclosing two mortgages', held by different parties upon the same real estate, which is erroneously described in the junior mortgage, and the decree thereon, there being also a personal judgment embodied in the decree in favor of the junior mortgagee, and where such real estate has been exhausted to satisfy the senior mortgage, execution may issue upon the personal judgment in favor of the junior mortgagee, without again offering for sale under the decree, either the exhausted property, intended to be mortgaged, or that which was actually described by mistake, the mortgagor never having owned or been in possession of the same.</p> <p>'Sheriff’s Sale.—Discretion of Sheriff.—In making sales of real estate on execution the sheriff has a wide discretion, and such sales will not be set aside unless it clearly appears that there has been an abuse of his discretion, to the substantial injury of the execution defendant.</p> <p>Same.—Where a sheriff, under an execution, offers for sale, first, the rents and profits of each of several lots,.second, the fee simple of each of such lots separately, then the rents and profits of all the lots, without receiving a bid, and then offers for sale and sells the fee simple of all of such lots, the sale will not be set aside for irregularity.</p>

<p>Sale.—Agency.—Evidence.—The evidence in this case tends to establish-the following facts : J. F. was for many years a shoe merchant, and had purchased goods from L. & Co. There were signs, hearing his name, in, front of the building in which he conducted his business. In June, 1880, while his business was being carried on through the agency of his sons, J. F., Jr., and M. F., the salesman of L. & Co. called at his store during his absence, and the sons gave an order for goods to be delivered in September'. The order was noted in the salesman’s book as having been given by J. F., and the sale was made upon his credit. After the order was given M. F. suggested to the salesman that J. F. might retire from the firm before the goods were to be shipped, and that the order had better be taken in the name of J. & M. F., stating at the same time that he would giye notice before the goods were forwarded as to how the firm would be. The order was so changed, hut no notice was-given. The goods were shipped to J. & M. F. at the time stipulated, and charged on the books of L. & Co. in the same way. J. F., Sr., had in the meantime retired from business, and J. F., Jr., succeeded him, the latter using the same signs and letter-heads. No such firm as J. & M. F. was ever formed. ,</p> <p>Held, that the evidence is sufficient to sustain a judgment against J. F., Sr., for the value of the goods.</p>

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

<p>Jury.— Voir Dire.—Opinion of Juror Upon Assumed Facts of Case.—Practice. —A party can not assume the facts of a case on trial and ask a juror, on his voir dire, for whom, on the facts assumed, he would find.</p> <p>Evidence.—Promissory Note.—Execution of.—Exclusion from Evidence Until Execution is Proved.—Practice.—Where the execution of a note sued on is denied under oath, the court may in its discretion exclude it from, the jury until evidence of its execution has been first given.</p> <p>Same.—Testimony on Former Trial— It is not error to refuse to admit in evidence a report purporting to contain the testimony of a witness on a former trial, it not appearing fhat such testimony was in fact given at that trial.</p> <p>Instbuctious to Jtjby.—Special Verdict.—Practice.—Where a special verdict is demanded, instructions beyond those respecting such a verdict and the usual rules concerning the credibility of witnesses, are not necessary, and if unnecessary instructions are given, available error can, not be predicated upon them.</p>

<p>Conveyance.—Avoidance.—Insanity.—Notice.—Innocent Purchaser.—A conveyance made by an insane person may be avoided, even as against a third person who purchased for full value and without actual notice of the mental disability, as a purchaser is affected with constructive notice of the incapacity of his grantors to convey.</p> <p>Same.—Insane Wife.—Secret Trust.— When Conveyance can not be Avoided.— Judgment.—But where a husband purchases land with money belonging to his wife, an insane woman, and takes the legal title in his own name,, whereby a trust results in favor of the wife, a conveyance thereof, in which she joins, can not, under section 2970, B. S. 1881, be avoided as. against a subsequent purchaser for value and without notice of her ■mental incapacity; but, being insane when she joined in the conveyance, her rights as wife are not affected thereby, nor are they barred by a judgment in an action in which her right to recover the land as owner is denied.</p>

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

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

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

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

<p>New Trial.—Misconduct of Jury.—Impeachment of Verdict.—Affidavits of Jurors.—The affidavits of jurors, to the effect that during their deliberations, while the credibility of a witness was under consideration, another juror stated, in the hearing of the jury, that he had known the witness, for a long time; that he was a sober, industrious and truthful man that he believed he was an honest man, and would not swear to a lie, etc., can not be received in support of a motion for a new trial based upon alleged misconduct of the jury.</p> <p>Same.—Statement of General Rule.—The general rule, in the absence of statutory modification, is, that affidavits or other sworn statements of jurors-will not be received upon a motion for a new trial, for the purpose of impeaching their verdict, by showing error or mistake in respect to the merits, or their own misconduct or that of their fellows, or that the misconduct of others affected their verdict.</p>

<p>Town.—Street Improvement.—Contract for with Treasurer Void as Against Property-Owner.—A contract between a town treasurer and the town for the improvement by the former of a public street is, under section 2049, K. S. 1881, void as against a property-owner assessed on account of the improvement.</p> <p>Same.—Curative Act.—Repeal of Statute.—Section 2049 being a general statute, and there being no repeal thereof, either expressly or by clear implication, contained in the act of March 19th, 1885 (Acts of 1885, p, 99), legalizing the contracts and proceedings of the town, such act did not validate the contract with the treasurer.</p>

<p>Pbincipal and SubetyExecution.—Exhausting Principal’s Pl-operty.— Duty of Sheriff.—Action Against for Damages.—Complaint.—A complaint by a surety in an execution against a sheriff, to recover damages for the latter’s failure to first levy upon and exhaust the property of the principal,, mustshow by proper averments that the plaintiff had caused thequestion of suretyship to be tried and determined as provided in section 1212, R. S. 1881, and had procured an order to be made, as provided in section. 1213, that the principal’s property should be first exhausted.</p> <p>Same.—Notice to Sheriff.—Personal Knowledge.—Mere personal knowledge of the sheriff’, or personal notice to him, of the fact of suretyship, is not sufficient to charge him with the duty of first levying upon and exhausting the property of the principal before levying upon the property of the surety.</p>

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

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

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

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

<p>Injunction.—Town.—Drain.— Wrongful Construction.—Joint Suit by Property-Owners.—The several owners of lots abutting on a street, along which the town is threatening to wrongfully construct a drain, may sue jointly for an injunction. Ueagy v. Black, 90 Ind. 534, limited.</p> <p>Same. — Consequential Damages.—Negligence.—A town may be enjoined from attempting to collect water in one channel and cast it upon the property of a citizen, but the fact that a lot-owner will suffer mere consequential damages, or that the work will be negligently done, is not sufficient to authorize an injunction against the construction of a drain.</p>

<p>Receives.—Motion to Discharge.—Foreclosure of Mortgage. — Judgment.— Supreme Gourt.—Bill of Exceptions.—Authentication.—Upon appeal from a, ruling denying a motion to discharge a receiver, the motion being based, on the ground that the questions between the parties were adjudicated' in a suit by the moving party to foreclose a mortgage upon the property in the receiver’s possession, the Supreme Court can not accept, and act upon as true, what is stated in the motion in relation to the foreclosure suit and the nature and scope of the decree, unless the facts are stated in a bill of exceptions, authenticated by the signature of the-judge.</p>

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

<p>Pleading.—Answer in Abatement.—Interest of Parties Plaintiffs.-—An answer alleging that as to some of the plaintiffs the action ought to abate, for the reason that they have no interest in the cause of action sued on, is had. Such matter Is not properly the subject of a plea in abatement,, but goes to the merits, and must be determined on the final hearing.</p> <p>Usage.—Custom.—Distinctions.—It is not essential that a usage should be shown to be so ancient “ that the memory of man runneth not to the contrary,” or that it should contain all the other elements of a common Jaw custom.</p> <p>Same.—• Usage in Particular Business.—Contract.—Evidence.—Where a usage-in a particular business is known, uniform, reasonable, and not contrary to law or public policy, evidence of it may be considered in ascertaining the meaning of an ambiguous contract.</p> <p>Same.-—Knowledge of Usage.—Evidence of the usage of a particular person: is admissible, provided it be known to the parties, or has been so long-continued, or has become so notorious in the place or neighborhood, as to justify the presumption that it must have been known to the parties.</p> <p>Same.—Packing Houses.—Storage.—Accounting in Kindand Quantity.—In the absence of an agreement to the contrary, it may he shown that packers, of pork, by the course of business at their house, did not keep the product of each customer’s hogs separate, but accounted in kind, quantity and quality, according to known, reasonable and recognized rules.</p> <p>Same.— Compensation for Slaughtering.— “ Product."— Trade Meaning.— A usage of a particular packing house, and one generally prevalent among such houses, to retain certain portions of hogs packed as compensation for slaughtering, cleaning, etc., may be shown; and so, also, it may be-shown that the term “ product,” as applied to the pork-packing business, has a known meaning peculiar to the trade, and does not include such parts of slaughtered hogs.</p> <p>Same.—Bailment.—Conversion.—Where the only practical method of conducting a business is to render to each bailor the amount of goods stored, in kind and quality, it is not a conversion of the goods bailed if the bailee treats them according to the known and usual method of conducting such business.</p> <p>Juby.—•Misconduct.—Setting Aside Verdict.—It is not misconduct, for which a vex’dict will be set aside, that during the deliberations of the jury one-of them summoned the bailiff to the door of the jury-room and had him. procure apples for the jury. °</p>

<p>Will.—Proceeding to Set Aside.—Insanity.—Instruction Upon Weight of Testimony.—In a proceeding to set aside a will on the ground of the mental incapacity of the testator to execute it, an instruction to the jury, that the testimony of the testator’s neighbors, who had long been acquainted with him, and who had frequent opportunities of observing his mind, was entitled to greater weight than that of witnesses of equal sagacity, whose opportunities were more limited, is incorrect.</p> <p>■ Same .—EMence—Opinions of Son-Expert Witnesses.—'The rule which allows the opinions of ^non-expert witnesses to be given upon the question of insanity; is one of necessity, and rests upon the proposition that there may be something in the looks, deportment, etc., of the person, not describable in words, which may contribute to the conclusion that he is -of unsound mind.</p> <p>Same.—Instructions as to Testamentary Capacity.—Inten'ogatories to Jury.—For/ a series of instructions upon the subject of testamentary capacity, and for interrogatories to the jury and answers thereto showing an utter' want of such capacity, see opinion.</p> <p>.1nste.tjg!tions to Jury.—Harmless Eror.—• Supreme Court.—A judgment will not be reversed on account of the giving of an erroneous instruction, if it was favorable to the party complaining or worked no injury to him.</p> <p>Same.—Must be Considered Together.—In civil cases, all the instructions given will be considered together, and if, thus considered, the law is correctly stated and the case fairly presented to the jury, the judgment will not be reversed because any one of the instructions, taken alone, may be inaccurate or not sufficiently full.</p> <p>Supreme Court.—Reversal of Judgment.—Affiimiative Showing of Eror.—To justify the Supreme Court in reversing a judgment, the record must affirmatively show that there was error in the pr-oceedings below, and that, the error was, or probably was, prejudicial to the party complaining on appeal.</p> <p>Same.—Instruction.—Motion for Hew Trial.—STo question can be made in the Supreme Court upon an instruction, the giving of which was not assigned as a cause for a new trial in the trial court.</p>

<p>■Criminal Law.—Indictment.—Information.—Indorsements.—Part of Record. —The original indictment, with all the indorsements required to be upon it, is a necessary part of the record when a prosecution rests thereon, and the saméis true of an information.</p> <p>Same.— Testing Sufficiency of Affidavit and Infoi'mation.—Motions to Quash and in Arrest. —The sufficiency of an affidavit and information may be tested by either a motion to quash or a motion in arrest, under the same general rules which apply to indictments.</p> <p>Same.—Time of Filing.—A motion to quash, as well as in arrest, raises the question as to whether the information was filed, and, if so, whether at the proper time.</p> <p>Same.—Jurisdiction.—Felony.—Information Filed in Vacation.—The circuit and criminal courts have no jurisdiction to try a person charged with a felony by an affidavit and information filed in vacation.</p> <p>Same.—Commencement of Prosecution.—The inquiry as to the existence of the necessary jurisdictional facts must be confined to the time of the commencement of the prosecution.</p> <p>Same.—Arrest of Judgment.—Where an affidavit and information are filed charging a person already in custody with a felony, the prosecution dates from the time of such filing, and if the conditions necessary to confer jurisdiction to proceed in that form instead of by indictment do not then exist, a motion in arrest of judgment should be sustained.</p>

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

<p>CbimihaIí Law.—Indictment.—Endorsed by Foreman of Grand Jury.—Motion to Quash.—An indictment, not endorsed by the foreman of the grand jury as required by the statute (section 1669, R. S. 1881), is bad on a motion to quash.</p>

<p>Benefit Association. — Certificate of Membership. —Accidental Injury.— Indemnity —Voluntary Exposure to Danger. —Criminal Act. — Conditions-Precedent.—Pleading.—A complaint upon a certificate of membership in a benefit association, to recover the indemnity agreed to be paid in the-event of an accidental injury, is sufficient if it sets out the circumstances under which the injury was sustained, and alleges that the plaintiff had performed all the conditions of the certificate on his part, without specifically averring that the claim is not within conditions, denying indemnity for injuries happening to a member in consequence of a voluntary exposure to unnecessary danger, or while engaged in, or in consequence of, any criminal act.</p> <p>Same.—Injury While in State of Intoxication in Public Place.—In such a case, an answer setting up the condition prohibiting a claim for indemnity on account of an injury sustained by a member while engaged in, or in consequence of, any criminal act, and alleging that at the time o£ the accident through which the plaintiff was injured, he was in a public highway, in a public place, in a state of intoxication, contrary to the criminal statutes, does not show any causative connection between the act which constituted the violation of law and the injury, and is, therefore, bad.</p>

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

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

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

<p>Fbatoulent Conveyañoe.—Creditor.—Cause of Action for Seduction.—One who has a cause of action for the seduction of his wife is, in legal contemplation, a creditor of the wrong-doer.</p> <p>Same. — Evidence. — Declarations of Grantee. — Knowledge of Claim Against Grantor.—In a suit to set aside a conveyance as fraudulent and to subject the land to sale under a judgment obtained by the plaintiff against the grantor for the seduction of his wife, it is competent to prove declarations of the grantee, prior to the conveyance, tending to show knowledge on his part of the claim against his grantor.</p> <p>Same.—Transcript of Judgment.—Defective Certificate.—Objections.—Practice. —In such case, a transcript of the. judgment is admissible to establish the claim of the plaintiff against the grantor, and objections to the form of the clerk’s certificate thereto can not be made for the first time on appeal.</p> <p>Same.—Scope of Inquiry.■—In a suit to set aside a fraudulent conveyance, the plaintiff is not confined to evidence of the one transaction, but has a right to give evidence of the general course of business between the grantor and grantee, as well as of distinct transactions.</p> <p>Same.—Conspiracy.—Declarations.—Statements of the persons by whom a fraudulent conveyance is executed, are admissible against themselves, and also against the grantee whenever it appears, either by direct or circumstantial evidence, that the grantor and grantee were acting in concert.</p> <p>Same.—Questions for Trial Court.—Supreme Court.—Practice.—Whether a conspiracy exists, and, if so, its scope and purpose, are questions for the trial court; and where there is any evidence at all supporting the decision of that court on such questions, it will be sustained on appeal.</p> <p>Same.—Notice of Fraudulent Purpose.—Subsequent Payment of Purchase-Money. —Bona Fide Purchaser.—A gi;antee, who pays the purchase-money after notice of the fraudulent purpose of his grantor, is not entitled to protection as a bona fide purchaser.</p> <p>Deposition.—Sick Witness.—Presumptions.—Where it is stated in the deposition of a witness that he is ill and unable to appear in court, the deposition is admissible, as the presumption is that the illness continued; furthermore, if, 'on appeal, the record shows that a physician’s certificate, which is not set out, was also read to the court, it will be presumed that it sustained the ruling admitting the deposition.</p> <p>Examination oe Witness.'—Leading Questions.—Discretion.—Beversal of Judgment.—It is only where there is a very clear and prejudicial abuse of discretion in permitting leading questions to be asked, that a judgment will be reversed on that ground.</p> <p>Same.—Cross-JEkaminaiion.—Questions on cross-examination must be limited to the subject covered or entered upon in the examination in chief.</p>

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

<p>Contract.—Precedent or Contemporaneous Verbal Agreement.—A-written contract can not be controlled, diminished or enlarged by any precedent or contemporaneous verbal agreement between the parties in relation to the subject-matter.</p> <p>Same.—Deed and Separate Writing Constituting One Contract.—Where a deed and a written contract are executed concurrently, each being the consideration for the other, they constitute one contract, and become the exclusive evidence of the agreements of the parties concerning the subject-matter thereof.</p> <p>Same.—■Merger of Oral Negotiations and Agreements.—Pleading.—All precedent or contemporaneous verbal negotiations and agreements are merged in a written contract between the parties covering the same subject-matter; and a complaint showing on its face that it is founded on a verbal agreement entered into by the parties preceding or concurrently with the execution of the written contract, is bad.</p> <p>'Same.—Presumption that Contract is in Parol.—-Where a pleading counts on ’ a contract which is not alleged to be in writing, it will be presumed to be in parol.</p> <p>Pleading.—Judgment Resting on Bad, Paragraph.—Reversal.—Where a judgment rests wholly or in part upon a bad paragraph of complaint which has been held good on demurrer, such judgment will be reversed.</p>

<p>Corporation.—Stock Subscription.—Payment in Property.—Subscriptions to corporation stock need not, in the absence of statutory provisions requiring it, be paid in cash, but any property which the corporation is authorized to purchase, or which is necessary for the purposes of its legitimate business, may be received in payment.</p> <p>Same.—Contract.— Ultra Vires.—Where a corporation is organized to engage in the manufacture of agricultural implements and to acquire and hold letters-patent for such articles as it may desire to manufacture, a contract to receive in payment for stock subscribed, letters-patent, implements, material and other assets of its predecessor in the same business, a partnership^ not ultra vires, but valid and binding.</p> <p>Same.— Overvaluation of Property.—Fraud.—Receiver.—Action for Unpaid Subscription.-—-The fact that property received by a corporation in full payment for stock subscription is taken at an overvaluation will not enable a receiver of the corporation to maintain an action against a shareholder as for unpaid subscription, until the transaction has been first impeached for fraud.</p>

<p>Decedents’ Estates.—Proceeding to Sell Real Estate.—Statute of Limitations. —The fifteen years’ statute of limitations (section 294, R. S. 1881) is applicable to a proceeding by an administrator for the sale of real estate to pay claims against the estate of his decedent.</p> <p>Same.—Allowance.—Accrual of Cause of Action.—Where a claim was filed in 1868, and allowed in 1869, but the judgment was subsequently reversed on appeal, and the claim finally allowed in 1872, it is held, under the facts of this case, that the cause of action accrued in 1872, and a proceeding, begun in 1886, for the sale of real estate to pay the allowance, is not barred.</p> <p>Same.—Laches.—Equitable Estoppel.—Statute of Limitations.—It is only where the laches of a party are of such a character as to work an equitable estoppel, that his right of action will be limited to a less period than that fixed by the statute of limitations.</p> <p>Same.—Quitclaim Leed.—Estoppel.—The fact that during the pendency of his claim against an estate, a creditor joins his wife, an heir, in a quitclaim deed to her interest in the land of the decedent, will not estop the creditor or the administrator from maintaining a proceeding against a remote grantee of the purchaser for the sale of the land to pay the claim, after the personal estate has been wasted without the fault of the creditor.</p> <p>Same.—Purchase of Land from Heir.—Notice of Allowance Against Estate.— Purchasers of real estate from the heirs of a decedent are bound to take notice of the record of allowances against the estate, and to know that the land, upon failure of personal assets, is liable to sale.</p> <p>Same.—Defences to Proceeding to Sell Real Estate.—Payment.—Set-Off.—Former Adjudication.—In a proceeding by an administrator for the sale of land, held by a remote grantee of the heirs, to pay a claim, the facts that the defences of payment and set-off were set up by a former administrator, who was an heir, against the allowance of the claim, and that the other heirs had requested that such defences be made and were witnesses, do not render the judgment allowing the claim a bar to such defences in the present proceeding.</p> <p>Same.—Defence by Heirs and Grantees.—Neither the act of 1875 (á R. S. 1876, p. 517) nor section 2326, R. S. 1881, denies to the heirs or their grantees, in a proceeding to sell land to pay a claim against a decedent’s estate, the right to defend against the claim upon its merits, notwithstanding it may have been allowed.</p> <p>Same.—Oivil Action.—Change of Judge.—A proceeding by an administrator for the sale of real estate is a civil action in such sense that a party may have a change of judge upon a proper application.</p> <p>Same.— Witness.—Disqualification.—Parly to Issue.—A person to be disqualified as a witness, under sections 498 and 499, E. S. 1881, must be a party to the issue to be tried, and not merely a party to the record ; if a party to the record only, he must be interested in the issue in favor of the party calling him.</p> <p>Same.—Husband and Wife.—Where a husband is incompetent as a witness under sections 498 and 499, his wife is also incompetent, and vice versa.</p> <p>Change oe Judge.—Motion.— Vacation.—Notice.—Where a motion for a change of judge is made in open court, and there acted upon, the mere fact that the affidavit was filed in vacation does not bring the matter within section 417, E. S. 1881, requiring notice.</p>

<p>Decedents’ Estates.—Administrator.—Appeal.-—Distribution of Estate.—It is the duty of an administrator to prosecute an appeal to the Supreme Court, where he has reasonable ground to believe that the court below has erred in its judgment and order as to the distribution of the estate.</p> <p>Supreme Court.—Appeal.—Administrator.—Bond.— Dnneeessary Parties.— In an appeal by an administrator or executor, no bond is necessary, and a motion’to dismiss such appeal for want of a bond, because there are other appellants unnecessarily joined, will not be entertained.</p> <p>Advancement.—Definition.—-An advancement, in legal contemplation, is the giving by a parent to a child, by way of anticipation, of the whole- or a part of that which it is supposed the child will be entitled to, on the death of the parent, or person making the advancement.</p> <p>Same.-—Parent and Child.—Intention.—The question as to whether a conveyance or transfer of money or property to a child is to be regarded as a gift, or an advancement, is to be determined by the intention of the parent.</p> <p>Same.—Presumption.— Voluntary Conveyance.—A voluntary conveyance of land by a parent to a child is presumed to be intended as an advancement, and the burden of proof is upon the party claiming it to be anything else.</p> <p>Same.—Where a question of advancement is involved, and there is no-satisfactory evidence as to the character of the transaction at the time the conveyance was made, the surrounding circumstances are looked into, and in the absence of evidence to the contrary, the law will ascribe to the donor that intention most favorable to an equal distribution of his property among all his children.</p> <p>Same.—A father conveyed to his four sons all of his real estate, comprising substantially the whole of his estate. The.se conveyances were made without any agreement that anything should be paid, except a stipulated annuity during the lifetime of the father equal to six per cent, of the consideration named in the deeds. No gifts or advancements had been made to the other children. In the absence of evidence showing a contrary intention on the part-of- the donor, Held, that such conveyances should be treated as advancements.</p> <p>Decedents’ Estates.—Advancement. — Mights of Widow. — Distribution of Estate. — Under section 2407, R. S. 1881, the widow is excluded from participation in advancements. After she receives one-third of what ■remains, after paying the $500 allowed her by law, and the debts and -expenses of administration, the surplus and the advancements are to . be aggregated, and the shares of the children equalized as nearly as may be under the several provisions of the statute on that subject.</p>

<p>Will.—Action to Contest.—Trial by Jury.—Actions to contest the validity of wills are statutory, and a trial by jury may be demanded.</p> <p>Juey.—Regular Panel.—Filling Vacancies.—Discretion of Trial Court.—The-manner of filling vacancies in the regular panel of the petit jury, no matter how occurring, is left by statute to the discretion of the trial! court, and it may direct that such vacancies be filled from bystanders, instead of from other names selected by the jury commissioners.</p> <p>Evidence.—Admission of Irrelevant and Immaterial Evidence.—Reversal of Judgment.—The admission of merely irrelevant or immaterial evidence, even though erroneous, is not, as a general rule, available for the reversal of.' the judgment.</p> <p>Same.—Expert Testimony.—Hypothetical Question.—Objection.—Whether the-facts assumed to exist for the purpose of a hypothetical question propounded to a witness called as an expert are true, or established by the evidence, is for the jury, upon the evidence adduced, and such matters, can not be made the basis of objections to the question.</p> <p>Insteuctions to Juey.—How Construed.—Reversal of Judgment.—Instructions to a jury will be construed with reference to each other and as an entirety, and if, when thus construed, they are correct and not calculated to mislead, the judgment will not be reversed because of mere-inaccuracies or loose expressions in them, separately considered.</p>

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

<p>Bond.—Of Contractor for County Work.—Gravel Road.—Defects in Bond.— Suggestion of in Complaint.—Extent of Recovery.—A bond given by a contractor for tlie construction of a gravel road, being taken in pursuance of a public statute, is an official bond and is subject to the provisions of section 1221, K. S. 1881; and in an action thereon, defects therein may be suggested in the complaint and a recovery had to the same-extent as if the bond was a perfect statutory one in terms.</p> <p>Same.—Liability of Sureties in Contractor’s Bond.—Claims Against Sub-Contractor.—The sureties in a bond given under section 4246, K. S. 1881, to-secure the performance of a contract by their principal to construct a gravel road, while liable in an action on the bond for debts incurred by the contractor in the prosecution of the work, are not liable for-debts incurred by a sub-contractor.</p>

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

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

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

<p>County.—Defective Bridges.—Negligence.—Liability.—Counties are liable for negligence in constructing and maintaining bridges upon public highways.</p> <p>Same.—Presumption that Bridges are Safe.—A traveller upon a public highway, without knowledge of defects in bridges forming parts thereof, and. himself exercising proper diligence, has a right to presume that such, bridges are in a safe condition, and to act upon that presumption.</p> <p>Same.—Tendency of Timber to Decay.—Counties Chargeable with Knowledge of.. —Counties, through their proper officers, are chargeable with knowledge-of the tendency of timber to decay, and for the failure to exercise reasonable care in providing against bridges becoming unsafe because of decaying timbers, they are liable for resulting injuries.</p> <p>Same.—Condition of Bridges.—Care Requiredto Ascertain.—Notice of Defects.— When Inferred.—A county, by its proper officers, must exercise reasonable care to ascertain the condition of and to repair its bridges, and if there are defects of such a character, and which have existed for such a length of time, that the county, by the exercise of reasonable care, might have discovered them, notice to it may be inferred.</p> <p>Same.—Size of Bridge and Character of Stream Immaterial.—Ditch.—The board of county commissioners has general supervision over the bridges of the county, and must exercise reasonable care in keeping all bridges upon the public highways of the county in a safe condition, regardless of the size of the bridge or the character of the streams or ditches over which they are constructed.</p> <p>Same.—Damages.— What not Excessive.—Five thousand dollars damages for the death of a sober, industrious and competent laborer, without means, thirty-six years old, who provided for his family as best he could, and who left surviving him a widow and six young children, are not excessive.</p> <p>Instructions to Jury.—Assuming Fact.—Where a fact is established without any conflict or contradiction, it is not an available error for the court to assume the existence of such fact in charging the jury.</p> <p>Same.—Refusal to Give Unsigned Instructions.—Instructions not signed by the party asking them, or by his attorney, as required by statute, may be refused without error.</p>

<p>Cbiminal Law.—Involuntary Manslaughter.—Indictment.—Where, from the facts charged in an indictment, the inference arises that death resulted involuntarily, while the accused was engaged in the commission of an-unlawful act, it is not necessary to state in terms that the killing was. involuntary or unintentional, in order to constitute a charge of involuntary manslaughter.</p> <p>Same.—Instruction.— Withdrawing One Count of Indictment from Consideration of Jury.—Where an indictment is in two counts, the first charging voluntary manslaughter, and the second involuntary manslaughter, and there is no evidence to justify the conclusion that the defendant intended to kill the deceased, an instruction, in effect withdrawing the first count from the consideration of the jury, is not erroneous.</p>

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

<p>■Contbact.—Clearing Land.—Meaning of Phrase.—Clearing land, in the absence of words of limitation, means removing therefrom all the timber of every size, except taking out the stumps.</p> <p>Same.—Evidence.- -Measwe of Damages.—In an action to recover damages for the breach of a contract to clear land, evidence as to what it is worth to clear the land, taking it in the condition in which it was left by the defendant, is competent.</p> <p>Same. — Written Contract.-—Parol Evidence.—Where a written contract is certain and unambiguous in its terms, parol evidence to explain or contradict it is not admissible.</p> <p>Same.—Trade Usage.— When Can Not he Shown.—A usage of trade, which is inconsistent With the express terms of a contract, can not be shown in an action upon the contract.</p>

<p>Receiver.—Partnership.— Firm Assets.—Right of Action.—A receiver of a partnership may, under the order of the court, take possession of all. firm assets and collect all debts due to the firm, hut his authority is confined to what are properly firm assets; and where an action might not have been maintained by the firm, it can not be maintained by the receiver, except where the firm has been guilty of fraud against its creditors.</p> <p>Same.—Individual Liability of Partner to Firm Creditors.—Not a Partnership Asset.—The individual liability of a member of a partnership to the firm’s creditors is not an asset of the firm, and in the absence of a statute authorizing the receiver of the partnership to enforce such liability-in behalf of the creditors, he has no such power, and the right of action, is in the creditors themselves.</p> <p>Same.— Voluntan/ Assignment of Partner.—Payment of Individual Creditors.— Surplus.—Right of Receiver to Collect for Partnership Creditors.—The receiver of an insolvent partnership, who holds his appointment under the superior court of a county, has no power by virtue of his appointment, nor can it be conferred upon him by an order of such court made upon petition of a part of the firm creditors, or otherwise, to collect for-such creditors from the assignee of a member of the firm, who is not indebted to tbe partnership, and who made an assignment under the statute, which is pending in the circuit court, the surplus that may remain in the hands of the assignee after payment of the individual creditors of the assignor.</p>

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

<p>Injunction.—Tenants in Common.-—lYasie.—One tenant in common may maintain a suit to enjoin a tenant in actual possession from committing waste, where the latter is insolvent.</p> <p>Pbactice.—Exception to Form of Judgment.—Motion to Modify.—A general exception is not sufficient to save any question as to the form of a decree; a motion to modify is essential.</p>

<p>Heal Estate.—Strict Foreclosure.—Lien.—Bight of Bedemption.—A proceeding in the nature oi a strict foreclosure may be maintained by one who holds the legal title to land against persons who have a mere lien upon or right of redemption in such land.</p> <p>'¡Same.—Such remedy is not appropriate as against a person who owns the legal title to the land.</p> <p>-Same.—Sheriff’s Sale.—Husband and Wife.—Inchoate Interest.—Mortgage.— Strict Foreclosure.-—J. purchased a tract of land at sheriff’s sale, sold as the property of B. subject to a mortgage held by P., in which B.’s wife had not joined. Subsequently, B. and his wife conveyed to Mrs. J. the undivided one-third of such real estate, which had been vested in Mrs. B. under the statute of March 11th, 1875. In the proceeding to foreclose P.’s mortgage, which was executed prior to the enactment of that statute, Mrs. J. was not made a party. C. purchased the land at the sale made in pursuance of the decree of foreclosure, and, in a partition suit brought by Mrs. J., filed a cross bill, setting up the above facts and asking that she be required to redeem the land, or, in default, that his title be quieted. The court decreed that Mrs. J, be required to redeem in six months by the payment of the amount of the mortgage and interest, or, in default, be barred and enjoined from asserting title.</p> <p>Held,, that this was error.</p> <p>Held, also, that a proceeding in the nature of a strict foreclosure was not an appropriate remedy as against Mrs. J., slie being the owner of the-legal title to one-third of the land.</p>

<p>Qtjietinu Title.—Complaint.-—A complaint to quiet title need not specifically set forth the claim of the defendant, but if it undertakes to do so and thereby shows that the defendant’s is the better title, the complaint will be bad on demurrer.</p> <p>School Lands.—Sale by Public Officers.—Lapse of Time.—Presumption of Validity.— Quieting Title.—Complaint.—It is not necessary, in a complaint to quiet title, to allege all the facts essential to establish the regularity of a sale made by public officers forty years previously; it is enough to aver generally that there was such a sale, for after such a lapse of time it will be presumed that the officers did their duty and that the sale was valid.</p> <p>Same.—Notice.—Petition by Voters.—Where school land was sold in 1847, and for non-payment of interest due on the purchase-money was again sold in 1883, four weeks’ notice of the latter sale was sufficient under the law then in force, and no petition from the voters of the township was necessary, such petition being required only when the land is first offered for sale.</p> <p>Same.—-Public Auction.—Private Sale.—Under section 4345, R. S. 1881, sales of school lands must be made at the door of the court-house of the proper county, at public auction. Section 4351 authorizes a private sale only where the land has been offered for sale at public auction and remains unsold.</p>

<p>Drainage.—Action by Commissioner to Colled Assessment.—Sufficiency of Complaint.—As to the sufficiency of a complaint by a commissioner of drainage to collect an assessment of benefits, see opinion.</p> <p>Bill of Exceptions.—Failure to ’Present to Judge Within Time Fixed.— Excuse. — Affidavits.—Supreme Court.—Practice.—A question as to whether an appellant is excusable for failing to present his bill of exceptions to the trial judge for his signature within the time allowed, can not be tried or determined in the Supreme Court on affidavits.</p>

<p>Aepeaeance to Action.— Withdrawal.— When Court Should Refuse to Allow. —After a defendant, by counsel, has appeared to an action, without process and service, filed a demurrer to the complaint, and applied for a change of venue, the court, except for good cause shown, should refuse to allow a withdrawal of the appearance.</p> <p>Same.— Withdrawal of Appearance Effects Withdrawal of Pleadings.—The withdrawal of a defendant’s appearance in a cause, of itself, effects the withdrawal of all pleadings therein.</p> <p>Judgment.—Review of.— Withdrawal of Appearance.—Default Without Sendee of Process.—Where a defendant, who has not been served with process, is permitted, after pleading, without objection by the plaintiff, to withdraw his appearance, it is error to render a judgment against him upon default, without first obtaining service of process and making proof thereof, and a complaint for review will lie.</p>

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

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

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

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

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

<p>Injunction.—Railroad.—Street.—Right of Way.—Release.—Abutting Owner. —Side Track.—The owner of a corner lot, for a valuable consideration, released to a railroad company the part of the streets adjoining his property, to the center line, for a right of way, “ to be occupied by one .track, as now located.” In constructing a switch the company proposed to lay one rail thereof for a distance of nineteen feet in front of the lot and near the intersection of the streets, on the projecting ends of the ties on which the main track was laid, and fourteen inches from the main rail. Suit for an injunction. „</p> <p>Meld, that in the absence of a showing that such occupation of the ties of the main track will impose any additional burden upon the plaintiff’s soil, or will present any additional impairment or interference with his use of the street, the injunction will not lie.</p>

<p>Pleading.—Striking Out.—Where the matters set up in affirmative answers are admissible in evidence under the general denial, which is pleaded, such affirmative answers may be struck out without error.</p> <p>Evidence.—Express Trust.—Can Eol be Established by Farol.—An express trust can not be established by parol evidence.</p> <p>Railroad.— Eight of Way.—Conveyance.— Easement.— Assignment.— Purchaser Under Foreclosure of Mortgage.—Where a right of way is conveyed, to a railroad company, the easement may be assigned or conveyed, and if there is no abandonment of the use, it will pass to the purchaser under a foreclosure of a mortgage executed by the company, embracing all of its rights and property.</p>

<p>•Chattel. Mortgage.—Debtor and Creditor.—Preferred Creditor.—Husband and Wife.—A debtor may give preferences among creditors, and a chattel mortgage, or other security given to his wife, to secure a bona fide debt due her from him, will be upheld, although at the time of its execution she may have known that he was indebted to other parties, and that suits were pending to enforce the collection of such claims.</p>

<p>Supreme Court.—Practice.—Judgment by Agreement.—Fraud, and Mistake.— The decision of a trial court, upon a question as to whether or not judgment should be rendered on an agreement theretofore made of record between the parties, or whether such agreement was the result of mistake or fraud, will not be disturbed on appeal if the evidence tends to support such decision.</p> <p>Same.—Bill of Exceptions.—Evidence.— Presumption in Aid of Judgment.— Where the bill of exceptions does not affirmatively show that it contains all the evidence heard by the court on the trial, it'will be presumed on appeal that the rulings below were fully justified by the evidence adduced.</p>

<p>Pleading.—Character Determined from. Facts Stated.—It is not the name given to a pleading, but the facts stated in it, that determine its character.</p> <p>Same.-—Misdescription of, in Filtering Judgment.—Special Finding.—Practice.—Where there is a special finding, stating facts entitling a party to the relief granted him, and pleadings upon which the judgment may be supported, it will be upheld, although the court misdescribed the pleadings in the entry of judgment.</p> <p>Supbeme Coubt.—Law of Case.—A decision by the Supreme Court, on an appeal, is the law of the case, and governs it throughout all of its subsequent stages.</p> <p>Special Finding.—Motion for Venire de Novo.—While the phrase, “ motion for a venire de novo," is not defensible on philological grounds, as applied to the special finding of a cpurt, yet its employment is justified by its convenience and general use.</p> <p>Mortgage. — Foreclosure. —Parties.— Junior Incumbrancer.— Redemption. — Reimbursement for Payments to Watchmen,—The purchaser at a sheriff’s sale, under mortgage-foreclosure proceedings, to which a junior incumbrancer was not a party, who enters into possession during the year for redemption, is to he regarded as a mortgagee in possession, and where the employment by him of a watchman is necessary to preserve the property from destruction, he is entitled to have the amount paid therefor repaid upon redemption.</p> <p>Sake.—Redemption from Mortgage.—Amount to be Paid.—A. junior incumbrancer, who is not a party to a suit to foreclose a prior mortgage, is not bound by the decree, and may redeem from the mortgage irrespective thereof; and the amount which he is liable to pay does not depend upon the judgment, but upon the covenants of the mortgage, and may include attorney’s fees and premiums paid for insurance.</p>

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

<p>Ckimestal Law.—Affidavit for Continuance.—Absent Witness.—Admission by. State as to truth of Facts Stated:—Instruction.—Where it is stated in an affidavit for a continuance, that a certain fact can be proved by an absent witness, and tire State, in order that an immediate trial may be had,. admits the truth of such fact, an instruction to the jury, that it must be taken as true for the purposes of the trial, but that “ the weight and. effect of such fact upon the merits is a question exclusively for your determination,” is not erroneous.</p> <p>Same.—Homicide.—Self-Defence. —Threats. — Witness. — Contradictory Statements Out of Court.—Instruction.—Upon a trial for homicide, where it was claimed by the defendant that he acted in self-defence, and that, the deceased had previously made threats of violence, the father of the1 latter was asked on cross-examination whether, prior to the killing, he-had not, in the presence of the deceased and one S., said to the latter-that “if those Mayfield boys (meaning the defendant and his brother) don’t watch they will get hurt, for George (meaning the deceased) will shoot them.” He answered that he did not recollect making such a, statement. S. was afterward introduced for the defendant, and testified that at the time and place mentioned such witness did make the statement in question, in the presence of himself and the deceased, and that, the latter was apparently giving attention thereto.</p> <p>Held, that an instruction, limiting S.’s testimony to its effect as impeaching evidence only, was erroneous.</p>

<p>Pleading.—Complaint Before Justice of Peace.—Sufficiency of.—Where an action is commenced before a justice of the peace, the complaint will be held good on appeal if it was sufficient to inform the defendant of the nature of the cause of action, and so explicit that a judgment thereon would bar another action for the same cause.</p> <p>Special Finding.— General Verdict.—Motion for Judgment Notwithstanding. —Where the facts specially found by a jury are inconsistent with each other, contradictory and uncertain in their meaning, and insufficient to . support any judgmen t in f ayor of the party moving for j udgment thereon, ■the general verdict will stand.</p>

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

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

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