Volume 111 — Indiana Reports

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

<p>Common Carrier.—Contract.—Care Required Concerning Goods.—A stipulation in a bill of lading issued by a transportation company, that goods received for shipment at Boston are “to be forwarded to Louisville depot only,” does not relieve the carrier from its duty to properly care for them after their arrival at the latter place.</p> <p>Same.—Duly to Provide Place of Storage.—Although the bill of lading is silent on the subject, it is the duty of a common carrier, which becomes a part of its contract, to provide a place where goods may be safely kept after they have been unloaded from the cars in which shipment is made. Same.— Warehouseman.—Negligence.—Delivery to Wrong Person.—Conversion. —After goods are unloaded and stored, the liability of the carrier becomes that of a warehouseman, whether the depot or place of storage belongs to it or to another; and if, through its negligence, the goods are delivered to a wrong person, it is liable to the owner upon its contract for damages as for a conversion.</p>

<p>Judgment.—Estoppel.—Promissory Note.—Failure of Consideration.—Cancellation.—Where, in a suit upon a part of a series of promissory notes given for the purchase-price of land, the others not being due, the answer sets up facts showing a failure of the consideration of the notes sued on only, but praying that the whole series be declared satisfied, and a judgment is rendered for the defendant, that judgment is not a bar to a proceeding upon the remaining notes, and a complaint in equity, based upon such judgment, to obtain the cancellation and surrender thereof, will not lie.</p> <p>Same.—Action Upon Series of Notes.—-.When Judgment Bars Subsequent, Action.—It is only where the judgment involves the whole of a series of notes, and settles the entire defence thereto, that it operates as an estoppel as to the whole; otherwise the judgment is a finality only as to so much of the claims and defences as were actually litigated in the first suit.</p>

<p>Pleading.—Practice.—Answer in Abatement.—Demurrer.—Motion to Strike Out.—Where an answer in abatement is pleaded with an answer in bar, it should be struck out on motion ; but neither the fact that it does not precede the answer in bar, nor that it is not verified, renders it bad on a demurrer for want of facts.</p> <p>Same.—Answer in Bar.—Abatement.—Party in Interest.—An answer which states facts showing that the plaintiff had no interest in the subject-matter of the action at the time of its commencement, and that some other person named was at the time the real party in interest in such suit, is an answer not in abatement, but in absolute bar, of the pending action.</p> <p>Will.—Bequest to Wife.—Action.—Party in Interest.—•Conversion.—Executor. —Where, by the express terms of a will, the testator gave and bequeathed all his personal property, absolutely and without limitation or restriction, to his wife, an action can not be maintained by an heir, during the lifetime of the wife, upon the bond of the executor, for the unlawful conversion by such executor of any part of the personal estate, the wife being the only party interested, and she alone having a right to complain of such conversion.</p>

<p>Appeal.—Action Begun Before Justice of Peace.—Amount of JSecovery.—Complaint.—Where, in an action instituted before a justice of the peace, the amount of the recovery both there and in the circuit court is fifty dollars, and there is no question of counter-claim or set-off, an appeal by the defendant to the Supreme Court will not lie, although the complaint demands judgment for more.</p>

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

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

<p>Real Estate.—Action to Recover.—Parent and Child.—Evidence.—In an action by a father against a daughter and her husband to recover possession of land and to quiet title, the evidence showed, in substance, that the plaintiff was the owner in fee simple of the real estate; that he was an old man ; that he had proposed to his daughter that if she would live with and take care of him during the remainder of his life, he would, at his death, give her all his property, and that she should have the use of all which he did not want to use; that the proposition was accepted, and the daughter and her family moved upon the land and into the plaintiff’s house; that a deed from the plaintiff to his daughter had been prepared but never executed.</p> <p>Held, that the evidence is not sufficient to sustain a judgment for the defendants.</p>

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

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

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

<p>Assignment for Benefit of Creditors.—Deed.—Preference of Creditors. —Fraud.—A stipulation in a deed of assignment, made under the statute, that certain creditors shall be preferred and paid in full, is controlled and annulled by the statute, and the deed, in the absence of actual fraud, will be upheld as a valid general assignment.</p>

<p>Judgment.—Gonelusiveness of.—Parties.—Judgments are presumptively only conclusive against- parties in the character in which they sue or are sued.</p> <p>Same.—Estoppel.—Former Adjudication.—The estoppel of a judgment is only presumptively conclusive where it appears that the suit and the issues were of such a character that the judgment could not have been rendered without deciding the particular matter again brought in question.</p> <p>Estoppel.—Former Adjudication.—Pleading.—Answer.—Parties.—Mortgage. —Foreclosure.—Judgment.—An answer to a complaint, in an action brought by the widow of the mortgagee to foreclose a mortgage given to secure certain promissory notes, payable to such mortgagee, which alleges that the payee and mortgagee in his lifetime, describing himself as the guardian of certain minor heirs named, instituted a foreclosure suit in the proper court, on the identical notes and mortgage, against the defendants, and that such proceedings were had in that behalf that upon the issues duly joined therein there was a finding and judgment for the defendants, but which does not allege that the merits of the case as to the plaintiff individually were in some way involved in the issues and determined by the prior judgment, is bad on demurrer.</p>

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

<p>JUROR.—Examination of, on Voir Eire.—Misconduct.—Euty of Ju/ror.—Practice. —In the examination of a juror upon his voir dire, if the general question asked fairly arouses his attention and directs it to the information desired, it is enough without specific questions covering minute phases of the subject, and it is the duty of the juror' to make full and truthful answers, neither falsely stating any fact nor concealing any, material matter within the general scope of the question, and any violation this rule is such misconduct as is prejudicial to the party.</p> <p>Same.—New Trial.—Insurance.—-In an action against a life insurance company to recover upon a policy of insurance, where a juror, in response to a question asked in the examination of the jury as to whether he held a policy of insurance issued by the defendant, answered in the negative, the truth being that he had taken out such a policy on his life for the benefit of his wife, the plaintiff having no knowledge of the fact, he is guilty by reason of such concealment of such misconduct as entitles the plaintiff to a new trial, notwithstanding his affidavit and those of his fellow-jurors, that in arriving at their verdict they were guided solely by the law and evidence.</p>

<p>Drainage.—Repair of Ditches by County Surveyor.—Act of April 6th, 1885, Constitutional.—Section 10 of the act of April 6th, 1885, making it the duty of the county surveyor to keep ditches in repair, giving him power to assess the cost upon the lands adjudged benefited in the original proceedings establishing such ditches, and providing for notice of the assessments and for an appeal to the circuit court by any person aggrieved, is constitutional.</p> <p>Same.—Limit of Surveyor’s Authority.—The authority of the county surveyor, under the statute in question, is strictly limited to keeping ditches in repair to the dimensions, as to width and depth, as required in the original specifications.</p>

<p>IBeal Estate.—Executory Contract to Convey.—Suit to Enforce.—Tender of Deed.—Complaint.— Where the vendor seeks to enforce an executory contract for the conveyance of land, the complaint must aver a tender of a •sufficient .warranty deed, and.the-tender must be kept good by bringing the instrument into court, or by an averment of a readiness and willingness to execute a deed that will vest title in the purchaser.</p>

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

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

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

<p>Married Woman.—Surety for Husband.—Mortgage.—A mortgage executed in 1875 by a married woman upon her separate property to secure her husband’s debt, was valid, under the law then in force.</p> <p>Same.—Extension of Time of Payment of Debt.—Release of Surety.—A wife, who is surety for her husband, will be released from liability the same as any other surety, by an extension of the time of payment of the debt without her consent, and the lien of a mortgage executed by her to secure it will be discharged.</p> <p>Same.—Mortgagee Bound to Inquire as to Consideration of Mortgage.—A person who accepts a mortgage upon the land of a married woman, knowing her to be married, and that the land is her separate property, is bound to inquire as to the consideration, and unless misled by her conduct or representations, he will be held to have acquired knowledge of the facts which prudent inquiry would have disclosed-</p> <p>Principad and Surety.—Mortgage.—Bankruptcy.—Discharge of Principal. —The lien of a mortgage given by a surety to secure a debt of the principal, is not .released by the latter’s discharge in bankruptcy.</p> <p>Same.—Discharge of Bankrupt as to Surely.—Proof of Claim.—A debtor is relieved from liability to his surety by his discharge in bankruptcy, whether the surety proved the debt against his estate or not.</p> <p>Same.—Moral Obligation of Bankrupt to Pay Debt.—Consideration for New Promise.—After his discharge in bankruptcy a debtor is released from legal liability to pay a prior debt, but not from the moral obligation, and the latter will constitute a sufficient consideration for a promise to pay such debt.</p> <p>■Same.—Agreement to Extend Time of Payment.—-Endorsement on Note.—Alteration of Contract.—Where, after his discharge in bankruptcy, the principal debtor and the creditor agree to an extension, for a definite period, of the time of payment of the debt, and to a reduction in the rate of interest, in consideration of which the former agrees to pay the debt at the time stipulated, and the agreement is endorsed on the back of the note originally given, the face of the note and the endorsement are to be construed together, and together they constitute the contract between the parties. Bluff v. Cole, 45 Ind. 300, and Bucklen v. Huff, 53 Ind. 474, distinguished.</p> <p>Same.—Husband and Wife.—Mortgage.—Alteration of Contract.—Release of Surely.—Where a married woman, in 1875, as surety, joined her husband in the execution of a promissory note, and executed a mortgage upon her separate property to secure it, and the husband was subsequently discharged in bankruptcy, after which, the creditor having knowledge of all the facts, an agreement to extend, for a definite period, the time of payment of the note and to reduce the rate of interest, in consideration of which the husband stipulates to pay the debt, is entered into between the creditor and the husband, without the wife’s consent, and endorsed upon the back of the note, there is such an alteration of the contract as releases the wife’s property from liability.,</p>

<p>Insurance.—Stipulation Against Other Insurance without Written Consent Endorsed on Policy.— Forfeiture.— Waiver.— Estoppel.—Pleading.—In an action to recover on a policy of fire insurance, stipulating that “ if the assured shall have or shall hereafter make any other insurance on the property insured, or any part thereof, without the consent of the company hereon written, this policy shall be void,” a complaint, alleging that after the policy was executed an agreement was made that other insurance might be taken, and that, a written stipulation to that effect would be inserted in the policy, and also showing that other valid insurance was taken, without any notice to the company or request to insert the stipulation agreed upon, does not show a waiver of the condition against further insurance or estop the company to insist that there has been a breach of such condition, and is bad on demurrer.</p> <p>Same.—Separate Items or Classes of Property Insured.— When Contract and Risk Indivisible.—Policy Void as to Part Void as to All.—Where the property covered by a policy of insurance, although consisting of separate items, appears to be so situate as to constitute substantially one risk—as a building and the furniture in it—then, even though separate amounts of insurance be apportioned to each separate item or class of property, if the consideration for the contract and the risk are both indivisible, the contract must be treated as entire; and any breach of a stipulation which renders the policy void as to part affects in the same manner all the other items.</p> <p>Same.—Construction of Policy.—Measure of Rights and Obligations.—While courts incline to such a liberal construction of insurance contracts in favor of the insured as, if possible, to avoid a forfeiture, yet, where parties have, without fraud, mistake or surprise, deliberately entered into a contract, that alone must be looked to as furnishing the measure of their respective rights and obligations.</p>

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

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

<p>■'Statute.—Repeal by Implication.—Gravel Road Acts.—Separate Systems of Procedure.—The gravel road law of March 3, 1877, was not repealed by the act of April 8, 1885, on the same subject; but an intention being manifested to not repeal the former act, two systems for the construction of gravel roads and the making and collection of assessments are created. Deisnei v. Simpson, 72 Ind. 435, distinguished.</p> <p>•Same.—Similarity of Provisions of Two Statutes.—Inconvenience.—If an intention to construct two systems for the government of the same subject is manifested, the similarity in the provisions of the two statutes, and the inconvenience worked thereby, are not sufficient to constitute a repeal of the earlier one by implication.</p> <p>Same.—Later Act Covering Same Subject-Matter.— When Former Act not Repealed.—The rule that where a later act covers the whole subject-matter of a former one, and contains irreconcilable provisions, a repeal will be implied, fails where an intention not to repeal is manifested and where both acts may stand.</p> <p>■Same.—Incompleteness of Act.—Construction.—It is not a sufficient objection to an act that it is not in itself complete in every part, for in interpreting and enforcing a statute it is not to be considered alone, but as part of a system of law.</p> <p>Gravee Boad.—Petition.—Signers to.—Jurisdiction.—Practice.—Where the petition for the construction of a gravel road on its face does not disclose the absence of jurisdictional facts, and no objection is made to it before the board of commissioners, an objection that it is not signed by the requisite number of freeholders is not maintainable on appeal.</p> <p>'Same.—Jurisdiction not Ousted by Delay.—After jurisdiction has been once acquired by the county commissioners, it is not ousted by mere delay in taking action in the case.</p> <p>•Game.—Notice.—Appearance.—Where a party appears without making an objection to the sufficiency of the notice, he can not make such objection on appeal.</p>

<p>Life Insurance.—Mutual Benefit Associations.—Members Take Notice of ByLaws.—Certificate.—Contract.—Mutual -benefit associations are in the nature of mutual insurance companies, and persons who become members thereof are bound to take notice of the by-laws, the latter becoming a part of the contract the same as if written in the certificate.</p> <p>Same.—Change of Beneficiary.—Provision of By-Laws.—The beneficiary in a. certificate issued by a mutual benefit association, providing for a change-of beneficiary, does not, during the life of the assured, have an indefeasible right in the contract or fund to be paid thereunder; but such beneficiary has an interest which can only be defeated by a change-effected in the manner provided by the by-laws.</p> <p>Same.—Attempted Change of Beneficiary by Will.— Guardian.—Executors.—Control of Fund.—Where the by-laws of a mutual benefit association, not a domestic corporation, provide for the payment of a sum of money to the dependents of a member, and fix definitely the manner of changing the-beneficiary, upon the death of the assured, without making a change in the manner specified, the beneficiary named in the certificate becomes the absolute owner of the fund, unaffected by.awill attempting to make a different disposition thereof, and, if the beneficiary is a minor under guardianship, the guardian is entitled to the possession and control of the money as against the assured’s executors.</p>

<p>Canals.— Wabash and Erie.— Title to Lands Taken by.—Easement.—Where lands were taken, occupied and used under the laws which provided for the construction of the Wabash and Erie Canal, the estate acquired therein was an estate in fee simple, and not a mere easement.</p>

<p>Promissory Note.—Payment.—Rights of Surety.—A surety in a promissory note has the right to require payment of the note to be enforced when it becomes due; or he may, without compulsion, pay and take it up and immediately institute such proceedings as are necessary for his reimbursement.</p> <p>Same.—Agreement of Third Person to Protect Surety.—An agreement “to secure and protect (at any time payment must be made) ” another in the settlement of a described promissory note, upon which the latter is surety, binds the promisor to take such measures as are necessary for the protection of the surety, whenever payment of the note, after its maturity, may be required, either by the payee or the surety.</p> <p>Same.—Consideration of Contract.—Averment of in Complaint.—Plea of Want of. —Where the consideration of a contract sued on is properly and fully averred in the complaint, a general denial puts the plaintiff to the proof thereof, and it is not error to sustain a demurrer to a paragraph of answer specifically pleading a want of consideration.</p> <p>Payment.—Giving Negotiable Note for Precedent Debt.—The giving of a negotiable promissory note, governed by the law merchant, for a precedent debt, will operate as a payment and discharge of such debt, unless it he shown that the parties did not intend that the transaction should have that effect. *</p> <p>Witness.—Recalling.—Discretion of Trial Court.—Practice.—The recalling of a witness, after he has been examined and discharged, rests in the sound discretion of the trial court. Neither party can recall him for further examination as a matter of right. The proper practice is to first obtain leave of the court.</p>

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

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

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

<p>Practice.—Appeal.—Showing of Error.—Reversal of Judgment.—Unless the record affirmatively shows the existence of error, and that it was, or probably was, prejudicial to the party complaining, the judgment will not be reversed.</p> <p>Same.—Evidence.—Examination of Witness.—Objection to Question.—Statement as to Answer Expected.—To constitute available error in ruling out a question propounded to a witness, the interrogating party must announce to the court 'what he expects to elicit in answer to the question. A general statement that he expects to follow up the question by showing a certain fact, but not announcing that he expects to make the proof by the witness interrogated, is not a compliance with the rule,</p> <p>Corporation.—Sale of Slock.—Implied Warranty.—There is no implied warranty on the part of the vendor of certificates of stock, that the corporation issuing them is a corporation de jure. If the corporation is a de facto one, that is sufficient to relieve the-vendor from any implied warranty as to the existence of the corporation.</p>

<p>Advancement.— What Constitutes.—Beal Estate.—To constitute an advancement the ancestor must, in his lifetime, divest himself of all interest in the property set apart to the lieir.</p> <p>Same.—Possession of Property by Heir.—Improvements.—Intention.—Different Disposition by Ancestor.—Where, by the direction and with the consent of the owner, his daughter and her husband enter into the possession of a tract of land, and with his knowledge make lasting and valuable improvements, it being the father’s intention that they shall reside thereon during his life, receive the proceeds, keep up repairs and pay taxes, and at his death the daughter to take a life-estate, with remainder to her children, there is no advancement, and the ancestor may make a different disposition from that intended.</p> <p>Same.—Evidence.—Declarations of Ancestor as to Intention.—In an action by the daughter to quiet title, evidence of declarations made by her father, previous to the time she took possession, showing an intention different from that asserted in the plaintiff’s behalf, is admissible.</p>

<p>Tax Sale.—Deed.—Permanent Improvements.—Adverse Title.—A purchaser of land at a tax sale, who has received a tax deed and taken possession and made permanent improvements, but whose deed is not effectual to convey title, can only recover for such improvements as were made after -receiving his deed and before notice of an adverse claim tq the land.</p> <p>>Same.—Statute Construed.— When Recovery Had for Improvements.—Section 253, of the tax law of 1872, providing that the purchaser “shall be entitled to receive what such improvements are reasonably worth, to be assessed on the trial of said cause,” does not fix the cases in which there may be a recovery, but only secures to the purchaser the value of improvements in a case where he is entitled to recover.</p>

<p>County.—Treasurer.—Agency.—Respondeat Superior.—A county treasurer is not an agent of the county in such a sense that the maxim respondeat superior can be invoked. His duties are prescribed by law, and in the exercise of his office he is in no way subject to the control of the board of county commissioners.</p> <p>Same.—Township Funds.—Defalcation of Treasurer.—Liability of County.—A county treasurer is not the agent of the county in respect to funds collected by him for townships, and, in the absence of a statute so providing, the county is not liable to the townships for his defalcations.</p> <p>Same.—Trust.—¿Township Funds Credited to General Fund of County.—The board of county commissioners has no control of the funds which the law requires to be collected for and appox-tioned to the townships, and occupies no relation of trust concerning such funds in the treasurer’s hands, unless they have actually been paid into the' corporate treasury, i. e., credited to the general fund of the county.</p> <p>Same.—Auditor.— Warrcmis/or Township Funds.—Ci'eateno Obligation Against County.—In drawing warrants upon the county treasurer for the funds in his hands belonging to the townships, the county auditor does not act as the agent of the county, nor do such warrants create any obligation against it.</p> <p>Same.—Compromise of Suit Against Defaulting Treasurer.—Rights of Townships.—Action Against County.—Where a suit has been instituted by the county auditor upon the official bond of a defaulting county tx-easurex’, and a compromise is effected, whereby a certain part of the amount converted is accepted in full satisfaction, a township which suffered a loss to its funds by the defalcation is entitled to its proportion of the sum recovered, but it can not maintain an action therefor against the county, unless it is shown that the share belonging to it has been covered into the county treasury to the credit of the general fund.</p>

<p>Contract.—Construction of Railroad.— Estimates of Engineer.—Stipulation that They Shall be Conclusive.—Recourse to Courts.—A stipulation in a contract between a railroad company and a contractor, that the estimates made by the former’s engineers as to the quality, character and value of the work performed by the contractor shall be final and conclusive against the latter, “without further recourse or appeal,” can not deprive him of the right to resort to the courts for the recovery of what may be due him, notwithstanding the estimates.</p> <p>Same.—Taking Control of Wm-k from Contractor.—A. provision in the agreement, that, if the contractor fails to employ such a force of workmen as the company’s engineer may deem adequate to a completion of the work within the time fixed, the latter may do so and charge the contractor with the amount paid in wages, must be given a reasonable construction, and control of the work can not be taken from the contractor without sufficient cause.</p> <p>Same.—Competency of Engineers.—Implied Undertaking as to.—In such case there is an implied undertaking on the part of the railroad company that the engineer to be put in charge shall be competent, honest and reasonably careful, and that he will not make delays, caused by his wrongs, a pretext for taking the work out of the control of the contractor.</p> <p>Same.—Material Furnished at Direction of Engineer.—Compensation Notwithstanding Contract.—Where the work which the contractor undertakes to do is to be performed under the direction of the railroad company’s engineer, who is clothed with almost absolute authority as to the manner in which it shall be done, the contractor is entitled to pay for piling of the original length ordered by the engineer and subsequently shortened at his direction, notwithstanding a provision in the contract that the contractor is to be paid for the lineal feet of piling actually used-</p> <p>Evidence.—Ecperts.—Railroad Builders.—Time of Performing Work.—Opinion.—Persons experienced, as contractors, in railroad building are experts, and may testify that, but for delays caused by the railroad company and its engineers, the work contracted for could have been completed within the time fixed in the contract.</p> <p>Same.—Action by Railroad Contractor.—Cost of Work.—In an action by a contractor against a railroad company, wherein it is alleged that the defendant had hindered and delayed the plaintiff in the prosecution of the work, and had wrongfully taken it out of the latter’s control, and completed it at a reckless and extravagant cost and charged the plaintiff therewith, evidence as to the reasonable cost of the work is competent.</p> <p>Supreme Court.—Brief. — Mere Restating of Causes for Bew Trial.—The mere restating in a brief of the causes assigned for a new trial does not meet the requirements of the rule of the Supreme Court relating to briefs.</p> <p>Same;—References to Record.—Parties asking for a reversal of a judgment must furnish references to such portions of the record as will show that error intervened in the proceedings below.</p>

<p>Canals.—Lands Appropriated for Reservoir Purposes.—Title Acquired.—The Wabash and Erie Canal Company acquired title in fee to land appropriated by it in 1846 for a reservoir to supply the canal with water.</p> <p>Same.—Assessment of Damages.—Lapse of Time.— Presumption.—After the lapse of so long a time since the appropriation of the land, it will be presumed that damages were assessed and tendered or were waived.</p>

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

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

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

<p>Pbincipal and Agent.—Trustee.—Style of Bank Account.—One who is put in possession of property by joint, owners, with instructions to sell it upon the best available terms, at his discretion, is an agent, and not a trustee, and his character is not changed by styling himself “ trustee," at the suggestion of one of his principals, a banking company, in making deposits with the latter of the proceeds of sales, to distinguish the account from another kept by him as agent.</p> <p>Same.— Joint Principals.—Severance of Interests. — Revocation of Agency.— Banks.—Mutual Release of Claims.—Where two banks, as principals, appoint an agent to take charge of a matter in which they are jointly interested, who deposits the joint funds in one of the banks, and a severance of the joint interest afterwards occurs, and in a compromise of differences each releases all claims against the other, the agency is thereby revoked, and a claim against the bank holding the deposit by the other principal for a share therein is discharged.</p> <p>Same.—Right of Agent to Maintain Action.—The right of an agent to bring an action in his own name in certain cases is subordinate to the rights of the principal, who may bring suit himself, and thus suspend or extinguish the right of the agent, unless in particular cases where th§ latter has a lien or some other vested right.</p> <p>Release.—Construction of.—Extrinsic Evidence.—To enable a court to construe a release from the stand-point occupied by the parties, extrinsic evidence is admissible to explain the circumstances under which it was executed, and the nature of the transaction to which it was designed to apply. The particular purpose for which it was executed ought to be kept in view, and where only general words are used they are to he construed most strongly against the party executing the release.</p>

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

<p>Appeal.—Certificate to Transcript.—Phrase “ True and Complete.”—The certification of the transcript of the record, on appeal to the Supreme Court, as “ true and. correct,” instead of “ true and complete,” in the language of the statute, is sufficient, the former phrase being equivalent to the latter.</p> <p>Same.—Motion to Dismiss.— Waiver.—Practice.—A motion to dismiss an appeal on purely technical grounds must be made, if at all, on the first appearance of the moving party in the Supreme Court; otherwise, the objection will be deemed waived.</p> <p>Same.—Joint Assignment of Error.-—-Sufficiency of.—A joint assignment of errors by two or more appellants will not present any question for decision unless it is good as to all who have united therein.</p> <p>Quieting Title.— Guardian’s Sale. — Ejectment.—Former Adjudication.— Pleading.—To a complaint by the heirs of W. against the remote grantees of B. to quiet title to real estate, an answer setting up a judgment rendered in an action prosecuted in his lifetime by W. against B., then in possession and claiming title through a sale made upon petition of the guardian of W., for the recovery of the land, wherein it was decreed that W. was not the owner and was not entitled to the possession thereof, is good.</p> <p>Judgment.—Conclusiveness.—Collateral Attack.—Jurisdiction.—A judgment rendered by a court having jurisdiction of the subject-matter and of the persons of the parties will stand as against a collateral attack.</p> <p>Same.—Guardian and Ward.—Proceedings to Sell Land.—Mere Errors and. Irregularities not Available Collaterally.—However irregular and erroneous the proceedings and orders of a court having probate jurisdiction may be, in relation to the sale and conveyance of the real estate of minor heirs, upon the petition of their guardians, yet if such proceedings and orders are not void, they are conclusive when questioned collaterally.</p> <p>.'Statute op Limitations. — Guardian’s' Sale of Real Estate.—Adverse Possession.—Ejectment.—Quieting Tille.—Where the purchaser at a guardian’s sale, made in 1852, went into immediate possession of the land, causes of action for the recovery thereof and to quiet title thereto accrued at that time, and, even if the sale was void, adverse possession having been continuously held by the purchaser and his grantees, such causes of action are barred. Sections 293 and 294, E. S. 1881.</p> <p>.'Same.—Disabilities.—Infancy.—Where one is under the disability of infancy at the time a cause of action in his favor accrues, the statute of limitations, nevertheless, begins to run, and, under section 296, R. S. 1881, the only effect of such disability is to give the party, if the full limitation has run during his infancy, two years after reaching legal age within which he may sue.</p> <p>¡Same.—Infancy and Coverture.—Where the statute of limitations begins to run during infancy, it is not impeded by the subsequent intervention of the disability of coverture, as one disability can not be tacked to .another .to stay the operation of the statute.</p>

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

<p>Taxes.—Assessment of National Bank Stock.—Right of Owner to Deduct Indebtedness.—The owner of national bank stock is entitled to deduct from its value, if he have no other credits from which the deduction can be made, the amount of the bona fide debts owing by him.</p> <p>Same.—Refusal to Allow Deduction.—Erroneous Assessment.—City.—Refunding Taxes Eironemsly Collected.—Where a taxpayer, in making his assessment list for city taxation, gives notice of his indebtedness, but does not enter it upon his list, Ynd demands of the assessor the right to deduct from the value of his national bank stock tile amount of his bona fids indebtedness, which that officer refuses to allow on the ground that such deduction is not authorized by law, and afterwards makes a like demand of the city treasurer before paying his taxes, which is also refused, the assessment, to the extent of the deduction improperly denied, is erroneous, and the taxpayer is entitled to have the excess of taxes collected refunded, whether paid voluntarily or not, and without appearing before the board of equalization and there attempting to have the assessment corrected.</p>

<p>New Trial.—As of Right.—Motion to Vacate Order Granting.—Practice.— Where a party is in court, by his attorneys, when an order is made granting the opposite party a new trial as of right, and does not object thereto, he can not afterwards move to vacate the order upon the ground that it was made without his knowledge or consent.</p> <p>Same.— When Motion to Vacate Musi he Made.—A motion to vacate and set aside an order granting a new trial as of right must be made at the earliest practicable moment to be available.</p> <p>Same.—Motion for New Trial After Term.—Where a verdict is returned on Thursday of the last week of a term of court, a motion for a new trial made on the fourth day of the next term comes too late, under section 561, R. S. 1881, and can not be entertained.</p> <p>Appeal.—Oomplaint for New Trial.—Separate Action.—The proceedings upon a complaint for a new trial after the close of the term at which a cause has been disposed of constitute a separate and distinct action, and from the judgment rendered therein an appeal may be taken to the Supreme Court. An appeal from the judgment in the original cause does not present for review the judgment rendered upon the complaint for a new trial.</p> <p>Same.—Remeso of Judgment.— Waiver.—Where a party files a complaint for review for alleged errors of law only, and prosecutes the proceeding to final judgment, he can not afterwards appeal from the judgment sought to be reviewed, as the adoption of one remedy waives the other.</p>

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

<p>Baii/road.—Bridge Abutting on Highway.—Fence.—Stock.—While a railroad company is not required to fence its track, or to maintain cattle-pits, at points where to do so would interfere with the safety of its employees in operating trains, or where fences or cattie-pits would interfere with its rights or with the rights of the public in travelling or doing business with the company, yet the burden is upon the company to show that, in constructing and maintaining a bridge abutting upon a highway, it had adopted all reasonable and practicable precautions to keep animals from entering upon the bridge from the highway; and it does not alter the casé that the bridge may have been partially in the highway, or that the animal may have been struck while upon that part of the bridge extending .into- the highway, on ground appropriated by the company.</p> <p>Same.—Securely Fenced.—Where, in the absence of a showing that it is reasonably impracticable to do otherwise, a railroad company maintains a bridge in such a condition that animals may enter upon it from a public highway, thus putting in jeopardy the safety of trains as well as the lives of the animals, the railroad is 4iot securely fenced.</p> <p>Same.—Fmdence.—Hypothetical Question.—In an action against a railroad company for killing a mare, it is not error to permit the following question to be answered: “ Suppose ‘ Little Miss ’ (the mare) was in as good condition, sound in wind and limb, at the time she was killed in October, 1884, if she was killed then, as she was when you knew her last, then I will ask you to state what was her fair market value; ” especially so where counsel apprise the court that if they do not maintain the hypothesis upon which the question is put, the evidence shall be struck out.</p> <p>Same.—Race-Horse.—General Reputation.—In such case, evidence of the general reputation of the mare among horsemen and turfmen, with reference to her being rattle-headed or disposed to break when racing, is not admissible.</p> <p>Same.—Practice.— Witness.—Where it does not appear from any statement in the record what a witness would have testified to in answer to an interrogatory, the sustaining of an objection presents no question on appeal.</p>

<p>Life Insurance.— When Premiums can not he Recovered.—Where a risk once attaches, under a valid policy, premiums paid upon it during its continuance can not be recovered back as for money had and received.</p> <p>Law of Case.—Decision of Supreme Court.—The decision of the Supreme Court in a cause remains the law of the case in all subsequent proceedings.</p>

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

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

<p>■CbimiítaIí Law.—Rape.—Penetration.—Under the statute, section 1806, K. S. 1881, the slightest penetration, the other elements of the crime being present, is sufficient to constitute rape.</p> <p>■Same.—Circumstantial Evidence.—Penetration, like any other element of crime, may be established by circumstantial evidence.</p>

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

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

<p>Free Gravel Road.—Assessment.—Collateral Attack.—Assessments for tbe construction of a free gravel road can not be impeached collaterally, unless the proceedings of the board of commissioners under which they are made are void.</p> <p>■County Indebtedness.—Free Gravel Road Bonds.—Constitutional Inhibition.—Bonds issued by a board of commissioners, under the provisions of section 5097, R. S. 1881, for the purpose of raising money for the construction of a free gravel road, do not constitute or evidence an indebtedness incurred by the county within the inhibition of article 13 of the State Constitution.</p>

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

<p>Bounty.—Military Service. — Liability of County. — Contrató, — Mutuality.— Statute of Limitations.—Where, during the late war, a county appropriated money to induce, by the payment of bounties, the enlistment of men in the military service of tho United States to fill its quota under a call for additional troops, an agreement in writing on the part of men already in the service, procured by one not shown to have been an agent of the county, to accept the offered bounty and be credited to-such county, is not responsive to the proposition contained in the order-of the county commissioners, but is more in the nature of a counter-proposition, requiring a further order of the board to make it binding as a contract, and in the absence of such further order the contract can not he deemed one wholly in writing, and the six years’ statute of limitations is a good defence to an action thereon.</p> <p>Same.—Consideration.—If a soldier was credited to a certain county at the time he was mustered in, or if such county then became entitled to have him so credited, any subsequent promise- made to him for the purpose of obtaining his consent to be credited to that county, was. without consideration.</p>

<p>rip.TMTWAT. Law.—Embezzlement.—Indictment.—“Employee.”—Meaning of and Averments as to.—The word “ employee ” has a well defined meaning, and in an indictment for embezzlement against one employed by another, charging him with having embezzled the funds of his employer, it is sufficient to describe him as an “ employee,” without setting out the facts constituting the employment.</p> <p>Same.—Supreme Court.—Practice.—Case not Reversed on Weight of Evidence.— In a criminal case the verdict will not be disturbed on appeal, nor the judgment reversed, merely on the weight or sufficiency of the evidence.</p>

<p>Contract.—Condition.—Construction.—Promise to Pay Money Upon Completion of Railroad, to Certain Points.—The instrument sued on provided that, the money sought to be recovered should become due and payable when a railroad should be built by a named company, and cars should be run from Kirklin, in Clinton county, to Carmel, in Hamilton county. It was further provided, that if said company should not construct said railroad from the former to. the latter place and run a train of cars “to within one-fourth of a mile of Carmel .within one year from this date, in Hamilton county, Indiana, and also to Indianapolis, in Marion county, Indiana, then this note shall be void.”</p> <p>Held, that there can be no recovery on the promise, unless the railroad was completed to both Carmel and Indianapolis within one year from the date of the instrument.</p>

<p>Sheriff’s Sale.— Void, Judgment,—Where a judgment is void all proceedings thereunder, including a sale, are also void.</p> <p>Same.—Sale Made Under Several Judgments, Some Valid and Some Void.—A sale made under several judgments, some of which are void and the others valid and regular, is nevertheless void.</p> <p>Judgment.—Costs.—Criminal Law.—Jurisdiction.—Dismissal of Appeal.—A judgment for costs rendered against the defendant in a criminal prosecution, upon dismissal by a court having no criminal jurisdiction, is void.</p>

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

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

<p>Supreme Court.—Assignment of Error.—Joint Assignment.—Effect of.—Complaint Good as to One Appellant.—Where a complaint is good as to one appellant, a joint assignment of errors will not prevail against it.</p> <p>Pleading.—Complaint.—Demurrer.-—A complaint which shows that the plaintiff is entitled to some relief will repel a demurrer.</p> <p>Married Woman.—Estoppel.—A married woman, whose representations were relied upon by one who contracted with her in good faith, is estopped to deny the character of her contract.</p> <p>Foreclosure op Mortgage.—Equitable Cognizance.—Not Triable by Jury. —A suit for the foreclosure of a mortgage is of equitable cognizance, and the issues therein are not triable by jury.</p>

<p>Married Woman.—Separate Real Estate.—•Mortgage Executed Upon to Secure Debt of Another.—A mortgage executed by a married woman upon her separate real estate to secure the debt of her husband or others is invalid, and can not be enforced.</p> <p>Husband and Wipe.—Tenants by Entireties.—Mortgage by to Secure Debt of Husband or Others.—A mortgage executed by a husband and wife upon real estate owned by them as tenants by entireties, to secure the payment of a debt due from the husband or others, is invalid, both as to the husband and wife.</p> <p>Same.—Coverture a Personal Defence.—Not Available for Third Parties.—Mortgage.—Grantor and Grantee.—Coverture is a personal defence, of which third parties can not avail themselves for their own benefit, and where a husband and wife mortgage real estate, and afterwards sell it, the grantee can not avail himself of the defence against the mortgage that it was executed to secure the payment of a debt due from the husband alone, and that at the time of its execution the husband and wife owned the real estate as tenants by entireties.</p> <p>Same.—-Cancellation of Mortgage.—-Where a husband and wife, owning real estate as tenants by entireties, sell and convey the same, their grantee can not maintain an action against one holding a prior mortgage thereon executed by such husband and wife to secure a debt of the husband, to have his title quieted and such mortgage cancelled on account of such facts, notwithstanding an averment in his complaint that such mortgagee recognizes and admits that the mortgage is void, and refuses either to cancel or to bring an action for its foreclosure.</p> <p>School Fund Mortgage.—Action to Set Aside.—County Auditor Not Proper Party.—In an action to set aside and cancel a mortgage executed to the State, to secure a loan from the school fund, the county auditor is not a proper defendant, and a judgment against such officer in such action will not bind the State, it not being a party.</p> <p>Semble, that the State can not be made a party to such an action.</p>

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

<p>Cjbimikaii Law.— Bill of Exceptions. — Agreement by Prosecuting Attorney Extending Time of Filing.—An agreement by the prosecuting attorney extending the time for filing a bill of exceptions beyond the statutory limit of sixty days allowed by the court (section 1847, B. S. 1881), is without authority, and a bill thereafter filed is not properly in the record, and presents no question.</p>

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

<p>Intoxicating Liquor.— Remonstrance.— Immorality.— Immorality on the part of the applicant, which may be made the basis of a remonstrance against the granting of a license to retail intoxicating liquors, under the act of March 17th, 1875, is not limited to such immorality as is. specified in that act.</p> <p>Same.— Common Gambler.—Frequenting places where gambling is permitted is, under section 2085, B. S. 1881, a public offence, and is such an immorality as unfits an applicant to be intrusted with the sale of intoxicating liquors.</p> <p>Same.—Qualification of Remonstrants.—Waiver of Objections to.—Estoppel.— Where the board of commissioners, without objection on the part of the applicant, entertains and acts upon a remonstrance, and hears and determines the questions thereby presented, and on appeal the circuit court does likewise, also without objection, all objections to the remonstrants are waived by the applicant, and the latter is estopped to deny that they are legal voters of the township.</p> <p>Interrogatories to Jury.— Withdrawal.--Practice.—To constitute available error in permitting a party to withdraw from the jury, over the objection of the adverse party, interrogatories propounded by him, it must be shown that such interrogatories were pertinent and material.</p>

<p>Office and Officer.—Quo Warranto.— Information in Nature of, Proper Proceeding for Obtaining Possession of Office.—An information in the nature of a quo warranto is the appropriate remedy for obtaining possession of an office to which a person, duly qualified, has been legally elected. It is also the proper remedy for the removal of the incumbent of an office, -who has usurped and illegally continues to hold it, and both remedies may be sought.by the same information.</p> <p>©ame.— County Auditor, Term of.— Breaking of Regular Succession.— Where there has been an unbroken succession of terms from the adoption of the existing State Constitution to the present time, and no general acquiescence in a different day or time, the commencement of the term of a county auditor dates back to, and is governed by, the time at which the term of the auditor who was in office when the Constitution took effect expired. Where, however, the regular succession .of terms has been broken by vacancies or other incidental causes, the term of a newly elected auditor begins when the regular or provisional term of his predecessor expires.</p> <p>Same —Estoppel.—It is only when his successor has not been chosen and qualified that a county auditor can continue in office beyond his term, :and whenever such officer has, in pursuance of an election to the office, served the full term of four years, and his successor has been duly elected and qualified, he is estopped frop denying that his term of office-has expired.</p> <p>Constitutional Law. —Repeal of Old Constitution by Inconsistent Provisions, of New.—Statute.—Repeal by Implication.—TÜé adoption of a new Constitution repeals and. supersedes all th.e provisions of the older-Constitution, not continued .in force,by the. new instrument; .and the same rule applies to 'amendments of an existing Constitution-, which are inconsistent with the original ‘text of the instrument amended; also to statutory enactments which are inconsistent with'later Constitutional provisions embracing the same subject-matter. . • - : •'.</p>

<p>Cbiminae Law.—Conspiracy to Defraud.—Indictment.—Naming Parlies to be Defrauded.—It is not necessary to the sufficiency of an indictment charging a conspiracy to cheat and defraud “ divers citizens of Randolph county ” and the “ public generally,” by certain false and fraudulent representations, that the names of the persons against whom the conspiracy was directed should be set out.</p> <p>Same.—Character of Pretences.—Question for Jury.—In such a case, whether the alleged pretences were of such a character as to impose upon citizens of the community, as communities are actually constituted, is a question of fact for the jury to determine.</p> <p>Same.—Protection of Weak and Credulous.—The purpose of the- law is to protect the weak and credulous from the wiles and, stratagems of the artful and cunning, as well as those whose vigilance and sagacity enable them to protect themselves.</p> <p>Same.—Renewal of Conspiracy.—After the joint design is once fairly established, every-act done in pursuance of the original purpose, .whether by one or more of the conspirators, or their agent, is ,a- renewal of the original conspiracy.</p> <p>Same.—Agent of Conspirators.—Declarations of.—Evidence.—One employed as agent by conspirators, after their criminal undertaking is on foot, to' aid in the prosecution of their designs, may testify to-false representations made by him and some of -his associates while carrying forward the business of the undertaking, although made in the absence of the person on trial.</p> <p>Same.—Employment of Agent to Commit Crime.—Liability of Principal.—One who employs an agent to assist in the execution of a criminal act is as guilty of the acts of the person employed as if he himself had performed them.</p> <p>Same .—Formal Agreement Not Essential to Formation of Conspiracy.—It is not essential to the formation of. a conspiracy that there should be any formal agreement between the parties to do the acts charged, but it is sufficient if the minds of the parties understandingly meet, so as to bring about an intelligent and deliberate agreement to do the acts, although not manifested by any formal words.</p>

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

<p>Pleading.—Matters of Description.—Amendment During Trial.—Practice.— Under section 396, B. S. 1881, the trial court may permit a party to correct a pleading as to a matter of description, even after the evidence in chief has been heard.</p> <p>Nuisance.—Public Highway.—Destruction of Culvert.—Restoration by LandOwner.—Surface Water.—Collecting into Channel and Discharging Upon Land of Neighbor.—Where the natural course of surface water is, and has been for a long period of time, through a culvert in a public highway and thence upon the lands of A., the latter has no right to fill up the culvert, thereby causing the highway to become impassable at times of high ' water, and, by the construction of a ditch, collect the water into a channel and discharge it in a body upon the lands of B., to his injury. Such acts would be the creation of a nuisance which B. would be entitled to abate by restoring the culvert, doing no wanton or unnecessary injury.</p>

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

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

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

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

<p>Gravel Road.—Act of 1SSS did not Repeal Former Acts.—The act of April 8, 1885, concerning gravel and macadamized roads, did not repeal the former acts covering that subject, hence, assessments and proceedings under the act of 1877, and the authority thereby conferred upon the board of county commissioners, are not affected hy the later statute.</p> <p>Same.—Cost to be Borne by Land, Benefited.—Legislative Intention.—Tt was the intention of the Legislature in the enactment of the gravel road laws to make the land benefited by improvements thereunder bear the whole expense of such improvements.</p> <p>'Same.—Additional Assessment.—Power of County Commissioners to Make.-—The board of commissioners has authority to levy an additional assessment, not exceeding the special benefits conferred upon the land, to pay the cost of the improvement, in case the original assessment proves insufficient, and it may do so of its own motion, without a petition.</p> <p>Same.—Matter of Additional Amount to be Referred to Viewers.—Notice.—The board of commissioners can not itself determine the additional amount to be assessed against the land-owners, but notice must be given and the matter referred to the viewers, as in the first instance.</p> <p>Same.—Agency.—Respondeat Superior.—In directing the construction of free gravel roads and levying assessments the board of commissioners is not the agent of the county, and the maxim respondeat superior can not apply in any form. "</p> <p>Same.—Cost of Improvement.—Liability of County.—The fact that a free gravel road when constructed becomes public, does not make the county liable for the cost of the improvement beyond the original estimate.</p>

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

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

<p>Criminal Law.—Instructions.—Record.—Bill of Exceptions.—Supreme Court. —Instructions which are copied into the transcript by the clerk, but not brought into the record by a bill of exceptions or by a special order of the court, will not be considered on appeal.</p> <p>SAME. —Manslaughter.—Assault and Battery with Intent to Commit.— Verdict.— Failure to Specify whether Voluntary or Involuntary.—In a prosecution for assault and battery with intent to commit manslaughter, the verdict is not vitiated, or the substantial rights of the defendant prejudiced, by a failure to specify therein whether the intent was to commit voluntary- or involuntary manslaughter.</p>

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

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

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

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

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

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

<p>Schools.—Rules twid Regulations.—Power of School Boards to Adopt.—Under the statutes ©f this State, construed in connection with the incidental powers of corporations, the various school boards, and other educational authorities, have power to adopt appropriate rules and regulations for the government of the schools under their control.</p> <p>Same.—Method of Adopting Rules.—Superintendent or Teacher May Malee.— It is not necessary that all rules for the discipline and government of schools shall be made a matter of record by the school board, or that every act, order or direction affecting their management shall be authorized or confirmed by a formal vote; but any reasonable rule adopted by a superintendent or a- teacher, not inconsistent with some statute or some other rule prescribed by higher authority, is binding upon the pupils. '</p> <p>Same.—City Schools.—Authority of Superintendent.—A rule requiring the superintendent of city schools to visit weekly all the schools under his charge, and to see that the best methods of instruction are adopted, confers upon him authority, if it were otherwise wanting, to order and promulgate such additional reasonable rules as the best interests of the schools may require.</p> <p>Same.—•Tardy Pupils.—Exclusion from School-Room During Opening Exercises.—Reasonableness of Rule.—A rule requiring tardy pupils to remain either in the hall of the school building, which is provided with heat, or in the office of the principal, until the opening exercises, lasting from ten to fifteen minutes, are concluded, in order that such exercises may not be interrupted or disturbed, is in itself a reasonable regulation.</p> <p>Same.—Enforcement of Rules.—Must be Reasonable Under the Oircumstanees.— In the enforcement of all rules for the government of a school, due regard must be had to the health, comfort, age, mental and physical condition of the pupils, and to the circumstances attending each particular emergency, and the condition of the weather, the infirmity of a pupil, and the like, may require relaxation in their strict enforcement.</p> <p>Same.— Unreasonable Enforcement oj Reasonable Rule.—A school regulation must not only be reasonable in itself, but its enforcement must also be reasonable under all the circumstances. The habit of locking the doors of a school-room during the opening exercises is not an unreasonable enforcement, under ordinary circumstances, of a rule requiring pupils to remain in the hall during that time; but if the weather is unusually severe, and proper steps are not taken for the comfort of children thus ■ excluded, such method of enforcement is unreasonable and improper.</p> <p>Same.—Liability of School Officer.—Error of Judgment.—A school officer is not personally liable for a mere mistake of judgment in the government of his school; but to create liability it must be shown that he acted in the matter complained of wantonly, wilfully or maliciously.</p> <p>Same.— Detention of Pupil After School Hours.—False Imprisonment.—The detention of a pupil for a short time after school hours, as a penalty for some omission or misconduct, is one of the recognized methods ol enforcing discipline and promoting the progress of the pupils in the common schools, and although the detention be mistaken it possesses none of the elements of false imprisonment, unless imposed from wanton, wilful or malicious motives.</p> <p>Same.—Reasonableness of Rule a Question of Lam.—Instruction.—It is for the court to determine, as a matter of law, whether or not a rule is a reasonable one, and an instruction which confounds the reasonableness of the rule with its unreasonable enforcement, and submits the matter of reasonableness to the jury as a hypothetic question, dependent upon the existence or non-existence of certain enumerated facts, thus making the question of validity one of mixed law and fact to be determined by the jury, is erroneous.</p>

<p>Conveyance.—Trust.—Grift.—Recovery of Possession.—Quieting Title.—Where the purchasers o£ land have the legal title conveyed to another, who pays no part of the consideration, the latter, in the absence of facts showing a gift of the property, becomes a trustee for the purchasers, and after a conveyance of the trust estate at the request of the beneficiaries, can not maintain an action to recover possession or quiet title.</p> <p>Same.—Evidence.— Written Instruments.—In such case it is proper to show all the transactions between the parties, and the written instruments relating to the acquisition and disposition of the property are admissible in evidence.</p> <p>Same.—Married Woman.—Suretyship.—Trust Estate.—The conveyance by a married woman, to secure her husband’s debt, of property held by her in trust for him, is not invalidated by the statute prohibiting her from entering into a contract of suretyship, as such statute applies only to property owned by her in her own right.</p>

<p>Married Woman.—Mortgage.—Surety.—Statute of1879.—Under the statute of 1879 (Acts of 1879, p, 160), a married woman might mortgage her separate property, acquired by purchase, to secure her husband’s debt.</p> <p>Same. -Duress by Husband.—Knowledge of Mortgagee.—It is no defence to a suit to foreclose a mortgage against a married woman that the latter executed the mortgage under duress by her husband, unless the mortgagee participated in or had knowledge of the duress.</p> <p>Pleading.—Additional Answers.—Refusal to Allow Filing of.—Discretion of Tidal Court.—For facts held not sufficient to show an abuse of discretion by the trial court in refusing to allow an additional paragraph of answer to be filed, see opinion.</p> <p>Special Finding.—Deception to.—Practice.—Motion for New Tidal.—A simple exception to a finding of facts does not raise a question as to whether the finding is in accordance with or contrary to the evidence, but a motion for a new trial is necessary.</p> <p>Same.—Exception to Conclusions of Law.—Admission.—An exception to conclusions of law admits, for the purposes of the exception, that the facts have been fully and correctly found.</p>

<p>Criminal Law.—Lottery.—Sale of Share or Ghance in.—Information.—Sufficiency of.—An information charging the sale of a share or chance in a lottery scheme or gift enterprise, substantially in the language of section 2077, R. S. 1881, defining the offence, is good on motions to quash and in arrest of judgment.</p> <p>Same.—Repugnant Allegations.—Surplusage.—Motions to Quash and in Arrest. —Contradictory and repugnant allegations in an information, unless containing matter which, if true, constitutes a legal bar to the prosecution, will be regarded as surplusage and afford no ground for quashing the information, where the offence is charged therein with sufficient certainty.</p> <p>Same.— Weight of Evidence.—A verdict will not be disturbed on the weight of the evidence.</p>

<p>Quieting Tithe.—Complaint.—Necessary Allegations.—A complaint to quiet, title must show, either by direct averment or by the statement of facts-from which the inference necessarily arises, that the defendant’s claim is. adverse, or unfounded, and a cloud upon the plaintiff’s title.</p> <p>Moktga-GE.—Cancellation.—Equitable Defences. — Maxim, “He Who Seeks-Equity Must do Equity.”—Application of.—A plaintiff who shows himself otherwise entitled to the aid of a court of equity will not, under the-maxim that he who seeks equity must do equity, be denied relief, unless the defendant brings forward some corresponding equity, growing out. of the subject-matter then in suit, which would, at some time subsequent to the transaction, in some form of proceeding, entitle him to a-, remedy against the other party, in respect to the subject-matter involved..</p> <p>Same.—Manned Woman.—Mortgage Without Husband Joining.—Lex Situs.— Vendor’s Lien.—Pleading.—Practice.—A mortgage executed in Michigan by a married woman, without her husband joining, upon her separate land in this State, is void, and, of itself, creates no equity which the courts can recognize; but if the debt intended to be secured thereby is purchase-money, the mortgagee may, by reason of his vendor’s lien, in a proceeding by the mortgagor to cancel the mortgage, obtain affirmative relief by cross-complaint, or by setting up the facts by way of answer may, unless his equity is acknowledged, defeat the plaintiff’s right to relief.</p> <p>Same.—Vendor’s Lien.—Equitable Subrogation.—Where a party who holds a valid mortgage upon land releases it, in order that the owner may sell the property and invest the entire proceeds in another tract, he to take á mortgage upon the latter for the amount of his debt, he in effect pays a part of the purchase-money, and, if the mortgage taken is void, will be subrogated to that extent to the rights of the vendor.</p>

<p>Witnesses.—Order Separating.—Disobedience of Order.—Where there is an order separating the witnesses, a party can not be deprived of the testimony of a witness who has been present throughout the trial, where it was not known at the time of the order, either by the witness or the party calling him, that his testimony would be required, or where the presence of such witness was not by the procurement or connivance of such party, nor attributable to any fault on his part or that of his counsel.</p> <p>Evidence.—Impeaching Testimony.—Error to Exclude.—It is error to exclude competent impeaching testimony, properly and seasonably offered, where no limit to the number of such witnesses has been fixed by the court, although other impeaching testimony has been offered and received.</p> <p>Same.— Witness.—Practice.—Where the question is as to the right of a witness to testify at all, and not as to the competency of his testimony, the party offering him is not required to state what he expects to prove by such witness.</p>

<p>Office and Offices.—County Surveyor.—Tern of Office.—Estoppel.—P. was elected county surveyor at the general election in November, 1884, and took possession of the office on the 21st of the same month. At the November election, 1886, R. was elected to the same office, and on the 22d of that month demanded of P. the office, with the property belonging thereto, which the latter refused to surrender. In a quo warranto proceeding against P.,</p> <p>Held, that having filled the office for the full term prescribed by the Constitution, he is, as against his regularly elected and qualified successor, estopped from denying that his term of office has expired.</p>

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

<p>Evidence.—Foreclosure of Mortgage.—Payment.—Set-Off.—Where the issue joined upon a complaint to foreclose a mortgage, executed to secure unpaid purchase-money, is upon pleas of payment and set-off, evidence that the cash payment stipulated in the contract of sale has been made is not competent.</p> <p>New Trial.—Surprise.— Waiver.—A party who sits by, and without asking a postponement takes the chances of a trial, can not, as a general rule, obtain a new trial on the ground of surprise.</p> <p>Practice.—Order of Introducing Evidence.—Discretion of Trial Court.—Supreme Court.—It is within the discretion of the trial court to admit or exclude in reply evidence that should have been given in chief, and unless there is an abuse of such discretionary power the Supreme Court will not disturb its decision.</p>

<p>Sheriff’s Sale.—Redemption of Real Estate.—Act of 1861.— Rents and Profits.—Judgment Debtor Alone Liable for.—Under the redemption law of 1861, no one except the judgment debtor could be held liable to the execution purchaser for the rents and profits of the real estate during the year allowed for redemption.</p> <p>Same.—Act of 1879.—Occupant of Land Liable for Rents and Profits.—The redemption law of 1879, which superseded that of 1861, made the occupant, although not the judgment debtor, liable for the rents and profits of real estate during the year for redemption.</p> <p>Same.—Redemption Law of 1881.—No Liability for Rents and Profits by Virtue of Act.—Under the act of 1881 on the subject of redemption, no one is liable to the execution purchaser, by virtue of the act alone, for the rents and profits of real estate during the period allowed for redemption.</p> <p>Same.— Vendor’s Lien.—Redemption Laws Construed.— A vendor’s lien attached to real estate in 1876. After the taking effect of the redemption law of 1881, the lien was enforced, and the real estate sold by the sheriff under the decree of foreclosure. At the time of the foreclosure and sale, and during the year following the sale, the real estate was occupied by a grantee of the judgment debtor.</p> <p>Held, that such occupant is not liable to the execution purchaser for the rents and profits of the land during the year following the sale, either under the provisions of the redemption law of 1861 or that of 1881.</p>

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

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

<p>'Contract.—Insurance.—Compromise of Disputed Liability.—Beseisdon.— When Necessary Prior to Action on Original Obligation.—A recovery can not be had upon a contract which has been released and surrendered in pursuance of a subsequent contract, upon which an amount has been paid as a compromise of a disputed liability upon the original obligation, so long as the subsequent contract remains unrescinded and in force, feven though the compromise was effected by fraud.</p>

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

<p>Mortgage. — Husband and Wife. — Tenants by Entireties. — Suretyship of Wife.—Conveyances to Evade Statute Prohibiting.—S. and wife owned land as tenants by'entireties and the former was indebted.' To evade the statute (section 5119, R. S. 1881) prohibiting a married woman from incumbering her property as surety, the land was conveyed to a trustee, who reconveyed it to the husband alone, after which it was mortgaged by the husband and wife to secure the former’s antecedent debt, and then, through another trustee, reconveved to the husband and wife as previously held. The mortgagee knew of the purpose of the conveyances.</p> <p>Held, that under the statute mentioned the mortgage is void.</p>

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

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

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

<p>Pleading.—Complaint.—Surplusage.—Statements of facts in a complaint, which are in themselves material and relevant to the cause of action, can not be regarded as surplusage, although they overthrow the pleading.</p> <p>Same.—Repugnant Allegatioris.—Where a complaint contains material and relevant facts, which constitute a defence to the action, it is bad on demurrer.</p> <p>Judgment.—Suretyship.—Contribution.—Collateral Attach.—Where a valid judgment has been rendered against several defendants, in which the question of suretyship between them has been determined, a suit for contribution afterwards brought by one of such defendants is a collateral attack on the judgment, and will fail.</p> <p>Same.—Evidence.—Reversible Error.—Parol evidence attacking a judgment which the record thereof on its face shows to be void, though incompetent, does not prejudice nor impair the rights of the party claiming under such judgment, and the admission of such evidence is not reversible error.</p> <p>Principal and Surety.—Judgment Defendants Primarily loable.—Establishment of Suretyship.—Parties against whom a judgment is taken are deemed primarily liable, unless the judgment determines the question of suretyship, though after judgment one who occupies the relation of surety may have the fact judicially established, and an order for an execution in his favor.</p> <p>Same.—Co-Sureties.—Jurisdiction.—-Jurisdiction to determine the rights of the plaintiff as against the defendants is not jurisdiction to determine the rights of the defendants on the question of suretyship, and does not of itself authorize an adjudication on that subject.</p> <p>-Same.—To secure a judicial determination of the question of suretyship, proper steps must be taken to invest the court with jurisdiction, and jurisdiction is not conferred by a complaint upon an instrument which does not on its face fully disclose the relation of the parties.</p> <p>Same.—Question of Suretyship an Independent One.—General Rule.—Exception. —The question of suretyship, so far as it affects the rights of the debtors between themselves, is an independent one, and is not as a general rule determinable upon the complaint, although there are cases where the complaint so fully discloses the facts as to give jurisdiction to adjudicate upon questions of suretyship without process issuing upon the cross-complaint, and even without a cross-complaint. Githens v. -Simmer, 68 Ind. 362, limited.</p> <p>Same.—Endorser.—Establishment of Suretyship.—An endorser can not have a judgment conclusively establishing suretyship upon the complaint of the plaintiff on a promissory note upon which, from the position of his ■ name upon the instrument, he prima facie appears as surety, without bringing the makers into court upon the question of suretyship.</p> <p>Same.—Judgment Determining Suretyship Without Proper Pleadings Void.— A judgment rendered in an action before a'justice of the peace, where the only complaint is a promissory noter bearing' the names of two makers on the face thereof and the name of another on the back, which assumes to determine the question of suretyship by adjudging the party whose name is on the back of the note to be surety, there being no pleadings filed raising such question, is invalid so far as it assumes to settle the question of suretyship, and is no bar to a subsequent action for contribution against the party so adjudged to be surety.</p> <p>Same.—Endoj-ser.—Inability of.—Presumption.—Evidence.—An endorser is not presumed to be a co-surety of one who signs as maker of a note, but parol evidence is admissible to prove that he did sign as co-surety. Same.—Contribution.—Endorser.—Co-Sureties.—■Pleading. — Complaint. — In an action for contribution, by one claiming to be surety on a promissory note upon which judgment has been rendered against an endorser who it is alleged was the co-surety of the plaintiff, it is sufficient to allege in the complaint that they were co-sureties, and that neither received any part of the consideration, without an averment that there was any contract between the parties establishing the relation claimed.</p> <p>Same.—Co-Sureties.—Contract Between Endorser and Maker.—Evidence.—Admission by Conduct.—In an action for contribution by one claiming to be surety, seeking to establish the relation of co-suretyship between himself and one claiming to be endorser merely, evidence tending to show that the latter bad entered into an agreement with the maker, after the -execution of the note, that such maker should pay him five dollars each week, and that under such agreement he had received fifteen dollars, is admissible, .not for the purpose of charging the defendant with the money received, but as an admission by conduct.</p> <p>Same.—The fact that an endorser of a promissory note received money from the principal to apply on the note is not of itself sufficient to entitle one who signs as maker to contribution. The endorser is bound to apply the money so received to a reduction of the debt, but his position is not thereby changed to that of a co-surety.</p>

<p>Lire Insurance.—Insurable Interest.—No one can have the benefit oí air insurance effected by himself upon the life of another, unless he has an insurable interest in the life insured.</p> <p>Same.—Creditor’s Insurable Interest in Life of Debtor.—Amount of Insurance Permissible.—A creditor has an insurable interest in the life of his debtor,, and may in good faith take insurance upon his life. The amount of the insurance obtained must bear some just proportion to the debt, or the extent of the obligation assumed, and the contingencies attending the maintenance of the policy, though it can not be limited to the amount of the debt.</p> <p>Same.—•Liability of Creditor for Surplus After Payment of Debt.—Where money has been collected upon a policy of insurance which had its inception in a scheme of mere speculation on the life of the insured, or where insurance is taken out by a debtor as security for the benefit of his creditor, the expense of procuring and continuing the policy being borne by the former, the amount collected, less the debt secured or the sums advanced in obtaining and keeping the policy in force, may be recovered by the personal representatives of the person insured.</p> <p>Same.— When Creditor Entitled to Full Amount of Policy.—Where a creditor receives from his debtor a policy of insurance on the life of the latter, paying all the expenses attending the issuance thereof, and all subsequent assessments and charges thereon, and being named therein as beneficiary, and upon the death of the debtor receives the amount stipulated therein, which is largely in excess of the indebtedness and the expenses of insurance paid by him, he is not liable to the representatives of the debtor for such excess, although it had been agreed between the parties that if the debtor should pay' the indebtedness and the expense of insurance the policy should be turned over to him.</p>

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

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

<p>Supreme Court.—Certiorari.—Bales of Trial Court.—The Supreme'Court: will not take notice of the existence of the rules of a trial court unless they are properly in the record on appeal, and will not require the clerk, by writ of certiorari, to certify such rules, unless embraced in a, bill of exceptions or ordered by the court to be so certified.</p>

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

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