Volume 112 — Indiana Reports

<p>Appeal Bond. — Action to Recover Real Estate. — Fixed Penally. — Liability of Sureties. — Justice of Peace. — Where, upon an appeal by the defendant from a judgment given against him by a justice of the peace for the possession of real estate and damages for its detention, the appeal bond is executed with a fixed penalty, the sureties therein are not liable beyond the sum stated, whatever may be the amount of the judgment rendered ■ against the defendant in the higher court.</p>

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

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

<p>Execution. — Proceedings Supplementary.— Pleading. — Method of Testing Sufficiency of Affidavit. — Motion to Quash. — -Practice.—In a proceeding supplementary to execution, the statutory methods of testing the sufficiency of the order and affidavit, viz., by demurrer, motion to dismiss or motion to strike out, must be pursued, and a motion to quash the writ and order, not being authorized by the statute, should be overruled.</p> <p>Same. — Civil Action. — Amendment of Affidavit. — A proceeding supplementary to execution is a civil action, and the modes of procedure and rules of practice fixed by the code in civil actions are applicable to such proceeding, except where the statute on that subject has prescribed a different procedure and practice. Where, in such a proceeding, a demurrer has been sustained to the original affidavit, the plaintiff may be allowed to amend and proceed as in other civil actions.</p> <p>Same. — Special Finding of Facts and Conclusions of Law. — Practice. —Upon the hearing of such a proceeding, the statute does not contemplate that either party may require the trial court to make a special finding of facts therein and state its conclusions of law thereon.</p> <p>Supreme Court. — Practice.—•Reversal of Judgment on Evidence. — Where the evidence does not sustain, or tend to sustain, the decision of the trial court on every material issue, the judgment will be reversed.</p>

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

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

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

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

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

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

<p>Decedents’ Estates. —Notice of Pendency of Final Settlement. — Requirements of. — The notice of the time fixed for the hearing of an executor’s or administrator’s final settlement, required by sections 23 and 26 of the act of March 7th, 1883 (Acts 1883, p. 160), may be signed by the clerk of the court in which the matter is pending, and is not insufficient if it recites that it is “ to the heirs, creditors and legatees,” instead of “ to all persons interested in said estate.”</p> <p>•Same. — Claims.— When Barred. — Statute Construed. — Exceptions to Final Settlement Report. — Practice.—Under the provisions of section 5 of the act of March 7th, 1883 (Acts 1883, p. 151), a claim against a decedent’s estate will be barred if not filed at least thirty days before the filing of the final settlement report by the executor, or administrator, subject to the exceptions of that section, and exceptions to such final settlement, filed by a creditor, based on the ground that he has a valid claim against ;such estate, which' has not been filed within the time provided by statute, no excuse for the delay being set forth, and no fraud on the part of •the executor being alleged, should, on motion, be stricken out.</p>

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

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

<p>■Statute. — Repeal by Implication. — Repeals by implication are not favored, but if a portion of a later statute will be destroyed by continuing any of the provisions of a prior one in force, the latter, to that extent, will be deemed repealed, notwithstanding a declaration in the later act that the prior one shall remain in force.</p> <p>Railroad. — Fencing Right of Way. — Act of April ISth, 1885, Bid not Repeal Prior Statute. — liability for Animals Killed.- — The act of April 13th, 1885 (Acts 1885, p. 224), relating to the fencing of railroad rights of way, did not repeal by implication the'prior act on the same subject (R. S. 1881, section 4025, et seq.), and for a failure to fence at all places required by the prior statute, railroad companies are liable as previously, except so far as farm crossings and gates are concerned.</p> <p>Same. — Joint and Several Liability of Owner and Lessee. — Incorpon-ated Towns.— Plaited Portions. —Procedure.—The prior statute not being repealed, the corporation owning a railroad, and its lessee, etc., are jointly and severally liable for the killing of animals upon the track thereof within such portions of an incorporated town as are laid out and platted, if the right of way could have been fenced at the place of the killing, and the manner of commencing and prosecuting actions and of collecting judgments is the same as formerly.</p> <p>Same: — Injury Must be Bone by Cars or Engines.- — Under the act of April 13th, 1885, as well as under the prior act, railroad companies are not liable for the injury or killing of animals unless injured or killed by the cars or engines.</p>

<p>CeimXNAI, Law. — Nuisance.—Affidavit and, Information. — Requirements of.— In an affidavit and information charging the erection and maintenance-of a nuisance, by erecting and maintaining near the dwelling-houses of divers inhabitants of the county a building in which were kept, fed and slaughtered large numbers of chickens, etc., and in and about which was deposited offal, thereby creating noisome smells, etc., it is not necessary to describe the particular location of the alleged nuisance, nor is it necessary to set out the names of the persons near whose dwelling-houses the same was maintained.</p> <p>Same.— TJnnecessai'y Averments as to Matters of Description Must be Proved as Alleged. — Matters of description in an information for the maintenance of a nuisance, as to the exact location of the same, and as to the names of the persons whose dwelling-houses are contiguous thereto, though immaterial and unnecessary, must, if set out, be substantially proved as alleged.</p>

<p>Recognizance. — Forfeiture.—Action on. — Complaint. — Pleading. — A complaint in an action on a forfeited recognizance, which alleges that the recognizance was adjudged by the court to be forfeited, and the forfeiture duly entered of record, is sufficient without an additional averment that the surety was called and required to bring in the body of his principal.</p> <p>Same. — Forfeiture May he Adjudged on Later Day of Term than Named in Recognizance. — Practice.—Where a recognizance is conditioned that the principal shall appear on the first day of the next term of the circuit court, and abide the orders of court therein, and where the cause is continued and set downvfor trial at a subsequent day in the term, the court may, on such latter day, legally adjudge the forfeiture of such recognizance, as to both principal and surety,«upon the failure of the former to appear and answer.</p> <p>Same. — Action on. — Defence.—Alteration of Indictment. — In hn action upon a forfeited recognizance, an answer which avers that the indictment against the principal therein was returned in January, 1887; that such indictment charged him with the' commission of a felony in December, 1887; that after a plea of not guilty thereto, the same, without the knowledge of either principal or surety, was changed and altered by the prosecuting attorney by the erasure of the figure 7 in the year 1887, so as to make the same read “ 1886,” is bad on demurrer. Such alteration would not affect the validity of the indictment, nor vitiate the warrant issued thereon or the recognizance executed by the prisoner.</p> <p>Same. — Evidence.—In an action on a forfeited recognizance, where, in the original proceeding, a nolle proseqwi had been entered to the indictment, and the prosecuting attorney had been ordered by the court to prepare and file an information against the defendant, charging him with the offence described in the indictment, the affidavit and information so prepared are competent evidence.</p> <p>Recobd. — Collateral Attack. — Complaint.—A record can not be impeached collaterally by the allegation of matters dehors the same, unless the complaint states what is shown by the record in relation to such matters.</p>

<p>PeACTice. — Supreme Gouri. — Appeal.—Motion, for New Trial. — Bill of Exceptions. — Where one of the causes relied on in a motion for a new trial is the rejection of offered evidence, the motion must specifically indicate the evidence offered and excluded, and the bill of exceptions must show that the evidence offered was that indicated in such motion.</p>

<p>Railboad. — Right of Way. — Liability for Killing Animah Turned into.— Fence. — Private Gate. — Where one habitually turns his horses into the right of way of a railroad company, through a gate maintained for his accommodation, in order that they may reach a pasture field adjoining the right of way, between which and the latter there is no fence, he can not recover their value if killed.</p>

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

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

<p>Municipal Cobporation.— Town. — Streets and Sidewalks. — Defects and Ob ■ struclions in. — Liability for. — A municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in a reasonably safe condition for travel by night as well as by day; but, that a pavement has become uneven, or that bricks therein may be displaced by the action of the elements, does not necessarily involve such municipality in liability if the defect can be readily discovered and easily avoided by persons exercising due care, or if the defect be of such a nature as not of itself to be dangerous to persons so using the walk.</p> <p>Same. — Contributory Negligence. — One who sees an obstruction in a street or sidewalk, and, knowing its dangerous character, deliberately goes into or upon it when he is under no compulsion to do so, or might avoid it by going around, takes the risk upon himself, and if injured on account of such obstruction can not, because of contributory negligence, maintain, an action therefor.</p>

<p>Intoxicating Liquor. — Affidavit for Continuance. — Admissibility in Evidence. — Admissions.—An affidavit for a continuance containing admissions by the accused is admissible in evidence against him, but he may explain the statements therein by any competent evidence.</p> <p>Same. — Sale to Minor. — Good Faith of Seller. — Fabrication of Evidence. — In a. prosecution for selling intoxicating liquor to a minor, it is proper to-prove facts tending to show that the defendant did not act in good faith, believing the buyer to be twenty-one years of age, and on this point the-fabrication of evidence may be shown.</p> <p>Same. — Prosecuting Attorney. — Misconduct in Argument. — "Where the prosecuting attorney confines his argument to the issues and the evidence! there is no misconduct, although there may be erroneous inferences.</p>

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

<p>Bilí 03? Exceptions. — “ Testimony " not Synonymous with “ Evidence.”— Practice. — A statement in a bill of exceptions that “this was all the' testimony given in the cause ” does not show that it contains all the evidence given, and questions which are based upon the evidence will not be considered on appeal.</p>

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

<p>Promissory Note. — Endorsement.—Fraud.—Innocent Purchaser After Moturity. — Estoppel.—Where the holder of a promissory note is induced, by fraud and without consideration, to endorse and deliver the same to another, who, after maturity, endorses it to an innocent purchaser for value and without notice, the latter takes title, the original holder being estopped as against him to deny the title of the fraudulent endorsee.</p>

<p>Sheriff’s Sale.— Upon Writ Improvidently Issued. — Sale not Void. — A sale of real estate under an alias writ is not void because the writ was improvidently issued, without an order from the judgment plaintiff. Same. — Irregularity.—Not Available to Judgment Creditor to Defeat Consummated Sale. — One who claims in the character of a judgment creditor can not avail himself of a mere irregularity to defeat a consummated sale.</p> <p>Quieting Title. — Complaint.—Belief of Different Character. — A complaint to quiet title to land, upon a specific claim of absolute ownership, does not entitle the plaintiff to relief of an entirely different character.</p>

<p>Partnership. — Set-Off.—Counter-Claim.—To a complaint by three persons-claiming to be partners, an answer by way of set-off and counter-claim that the defendant is not indebted to the firm as so constituted, but that his business dealings had been wholly with the firm composed of two of the plaintiffs only, who, as such partners, were indebted to the defendant in a sum exceeding that sued for, and offering to set off an equal sum against any amount found due said two plaintiffs and asking judgment against them for the balance, is good.</p> <p>Same. — Representations by One Partner that Another is not Member of Mrm.— One partner, dealing in the name of the firm, can not deprive another member of the firm of his interest in the partnership assets by representations to others with whom he deals that such person is not a member-of the firm, where the latter neither authorizes nor knows of such statements.</p> <p>Sam;®. — Set-Off.—Mutuality.—Where a firm composed of three persons sues to recover a debt due to the firm as so constituted, the defendant can not set off a debt due from two of the partners to him against their-proportion of the debt sued for.</p> <p>Set-Ore. — Mutuality.—Mutuality is essential to the validity of a set-off,, except where it is necessary to allow the set-off in order to prevent irremediable injustice.</p> <p>Supreme Court. — Pleading.—Harmless Error. — Where a demurrer has been sustained to a good paragraph of answer, and there is no other-paragraph under which the same facts are admissible in evidence, the Supreme Court can not, by looking to the evidence or to the finding of the trial court, pronounce the error harmless.</p> <p>Practice. — Pleading.—Evidence.—Proof of a cross complaint can not be made under an answer of general denial.</p>

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

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

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

<p>Slakdeb.— Words not Actionable Per Se. — The words “I know all about that case; while she was out there claiming to be the wife of George W. Funk, she was back here claiming to be my wife,” do not impute a. want of chastity and are not actionable per se.</p> <p>Same. — Justification.—Insufficient Answer. — An answer by the publisher of libellous words that he heard them from another, and that it is true that he did hear them, is not a justification; but to constitute a justification it must be averred that the plaintiff was guilty of the wrong or crime imputed by the words used.</p>

<p>Office and Officer. — Title to Office.— Quo Warranto.— Civil Remedy.— Pleading. — An information in the nature of a quo warranto, when brought on the relation of an individual to establish his right to an office, is regarded in the light of a civil remedy, for the determination of a civil right, and its sufficiency is to be determined by the rules applicable to pleadings in civil actions.</p> <p>'Same. — Sufficiency of Information. — 'The information must contain such a plain statement of the facts which constitute the grounds of the relator’s claim as to make it affirmatively appear that he has title to the office in controversy.</p> <p>Pleading. — • Ambiguity. — • Demurrer.— Motion to Malee Certain. — Where a pleading contains a statement of all the facts essential to constitute a cause of action, although in general and ambiguous terms, it is good on demurrer, but may be made more certain on motion.</p> <p>■County Commissioner. — Term of. — Applies to Office, Not to Person.— The term of county commissioner applies to the office, and not to the person, and it ends with the expiration of each period of three years, regardless of the time when the officer commenced service in the. term to which he was elected.</p> <p>Same. - Confusion in Terms. — Act of 1885.• — J. was elected county commissioner in 1882. By reason of the encroachments of predecessors the term to which he was elected expired in November, 1883. S. was elected to. the same term in 1884.</p> <p>Held, that under the act of March 7th, 1885, S., as the commissioner-elect,, was entitled to take possession and serve three years, and to the end of the regular term of the district.</p> <p>Same. — Commissioner-Elect.— Who is. — A commissioner who received a ma-' jority of the votes at an election held according to law is a commissioner-elect within the meaning of the act of 1885, whether he has. 'received his certificate of election or not.</p>

<p>Decedents’ Estates. — Costa Taxed Against Administrator Personally.— When a Charge Against Estate. — Where an administrator is sued in his individual capacity for the recovery of personal property of which he has taken possession ii> his representative capacity, believing it to belong to the decedent’s estate, the costs which he incurs, in good faith, in defence of the suit, and which are taxed against him personally, are a proper charge against the estate.</p> <p>■Same. — Resisting Allowance. — Party in Interest. — One who has purchased real estate which, there being no personal property, is liable to be sold .'by the administrator to make assets to pay an allowance, if it is a legal -charge against the estate, has such an interest as gives him a right to contest its validity.</p> <p>■Same. — Estoppel.— Vendor and Purchaser. — Neither the fact that his vendor is solvent, thereby giving him a remedy upon his covenant of warranty, nor that the vendor agreed to pay the claim for which the allowance is asked, prevents the purchaser from resisting the claim ; but if the latter agreed with his vendor to pay it, and for that purpose retained a part -of the purchase-money, he is estopped to dispute its validity.</p>

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

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

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

<p>Contract. — For Delivery of Personal Property. — Action for Breach, — Complaint. — Averment that Debt is Due and Unpaid. — Where a contract requires the delivery of personal property, a complaint thereon alleging a demand for the property and a refusal to deliver it, whereby the defendant has become indebted to the plaintiff in a named sum, sufficiently states a cause of action for the breach of the contract, without averring that the debt remains due and unpaid.</p> <p>Same.- — Lease.—Precedent Conditions. — Averment of Performance. — A complaint against a lessee, to recover for a breach of the contract, need not allege that the lessor has performed on his part, where it appears that, by the terms of the lease, the right of action does not depend upon any precedent conditions to be performed by him.</p> <p>Judgment. — Review of. — Jurisdiction of Person. — Appearance.—Complaint.— A complaint to review a judgment, on the ground that the court acquired no jurisdiction over the person of the defendant, is bad if the record shows an appearance by or for the defendant.</p> <p>Same.— Proceeding by Party to Set Aside. — Collateral Attack. — Matters Dehorsthe Record. — Where the record of a court of general jurisdiction, either affirmatively or by the presumptions which attach to it, shows that a judgment has been rendered against a party over whom the court had acquired jurisdiction, any attack, the sole purpose of which is to have the jndgment declared void, by showing matters dehors the record, is a collateral attack and can not be made by a party to the judgment.</p> <p>Same. — Jurisdiction.—Unauthorized Appearance. — Where the record shows, that the court acquired jurisdiction over the person of the defendant by an appearance and answer, the mere fact the latter signed the paper purporting to be an answer out of court and left it in the possession of the plaintiff’s attorney, who filed it in his absence, wherefore it is alleged that the judgment is void for want of jurisdiction, does not. entitle him to have the judgment set aside.</p>

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

<p>Evidence. — Transcript.—Certification by Justice of Peace. — Equivalent Terms. —The certification of a transcript by a justice of the peace as “a correct statement of the proceedings had before me in the above entitled ■case ” is the practical equivalent of a statement that the transcript is “a true and complete copy” of such proceedings, and authorizes its admission in evidence.</p> <p>Execution. — Dormant Judgment.— Validity for Purpose of Execution. — The validity of a judgment for the purpose of having execution upon it is not impaired because, by the expiration of ten years, it has ceased to be a lien on real estate. "'</p> <p>■'Same.— Voidable Execution. — Revival of Judgment. — An execution issued upon a dormant judgment, without a revival or leave of court, is not void, but only voidable as against direct proceedings to have it set aside. ■ - ■</p> <p>Same. — Transcript from Justice of Peace.— Filing and Recording.— Formal Proof of. — Recitals in Execution. — Where an execution, issued by the clerk •of the circuit court, upon a judgment rendered by a justice of the peace, is admitted in evidence without any objection that there has been no formal proof that the transcript of the judgment has been filed in the clerk’s office and entered in the proper order-book and judgment-docket, recitals contained in the execution that such steps had been taken will be held to supply the omission of such formal proof.</p>

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

<p>Cbiminai, Law.— Prostitute.— Indictment.— Duplicity.— Where a statute, like'section 2003, R. S. 1881, on the subject of prostitution, makes it an offence to do this, or that, or another thing, mentioning several things disjunctively, either one of which would constitute the same offence, subject to the same punishment, it is the general rule that all the things mentioned may be charged conjunctively in a single count, as constituting but a single offence.</p>

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

<p>Demurrer to Evidence. — Truth of Facts. — Inferences.—Practice.—In considering a demurrer to evidence, the court is bound to accept as true all the facts which the evidence tends to prove, and, as against the demurring party, to draw from the evidence all such reasonable inferences as a jury might draw.</p> <p>Same. — Conflicting Evidence.— What Can be Considered. — If there is a conflict in the evidence, then only such as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn.</p> <p>Same. — Question Presented. — Bill of Exceptions. — Where evidence is incorporated, as it must be, in the demurrer, the only question presented is the sufficiency of the evidence to sustain a right of action, and exceptions to rulings in rejecting or receiving evidence are not presented, a bill of exceptions being necessary for that purpose.</p> <p>Negligence. — Railroad.— Trespasser. — No action will lie against a railroad company for causing the death of a trespasser upon its track unless the act of its employees was wilful.</p> <p>Same. — Presumption that Person will Leave Track. — An engineer of a moving train has a right to presume, until the last moment, that.a person walking on the railroad track will leave it in time to avert danger.</p> <p>Same.— Wilfulness. — Constructive Intent to Inflict Injury. — To constitute wilfulness, in a legal sense, it is not necessary that there should be a formed and direct intention to kill or wound any particular person; but the intent may be a constructive or an implied one.</p> <p>Same. — Reekless Disregard of Consequences. -A reckless disregard of consequences may be so great as to imply a willingness to inflict an injury; and as to entitle a trespasser to recover, although there is no actual intent to harm him.</p> <p>Same. — Person Unconsciously in Peril. — Duty to Stop Train. — If two men are seen on the track in front of a train, one risking his own safety in an effort to signal the foremost man to leave the track, the engineer is guilty of a wilful wrong if, seeing the signals, he fails to use ordinary care to stop the train ; but it is otherwise if he does not see the signals.</p> <p>Same. — Rate of Speed.— When Not Material. — As applicable to an injury to a trespasser, the rate of speed at which the train ivas run is not material, unless there be something making it evidence of an intentional or wilful act.</p> <p>Same.— Use of Brack by Public.— License.— Where a railroad company, either expressly or by clear implication, licenses the public to use its track in a city, town or village, it can not treat one who avails himself of the license as a trespasser.</p>

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

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

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

<p>Measure oe Damages. — Breach of Contract.— Cains and Profits. — A party who has been wrongfully deprived of the profits of an executory contract may recover, byway of damages, the difference between the amount he would have been entitled to on performance and the amount it would have cost him to perform the contract.</p> <p>Same. — Procurement of Other Work. — Reduction of Damages. — Burden of Proof. —In such case the burden is upon the defendant to prove that the plaintiff could have procured other work, from which profits would have accrued, thereby preventing or reducing the damages for which he sues.</p> <p>Practice.— Witness. — Objection to Question. — Statement as to what Evidence is Expected. — Where a question is propounded to a witness, to which an objection is sustained, the party introducing the witness must, to make the ruling available as error, state to the court what evidence he expects to elicit by the answer' to the question.</p> <p>Same. — Instructions.—Making Part of Record. — It is doubtful whether instructions to the jury are such papers as may, under section 650, R. S. 1881, be made a part of the record by an order of the court, or whether . they can be brought into the record in any other manner than by bill of exceptions, or in the mode prescribed by section 535.</p>

<p>Tbust. — Parol.—Beal Estate. — Proceeds of Sale. — An express trust in land can not be established by parol; but a parol agreement to hold the proceeds of a sale of the land in trust for another is valid, if upon a sufficient consideration.</p> <p>Same. — Consideration.—Equitable Obligation. — Such an equitable obligation arises out of an agreement of a grantee to hold the land in trust for the grantor as constitutes a sufficient consideration for a subsequent agreement to hold the proceeds of a sale of the property in trust for such grantor.</p>

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

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

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

<p>Judgment. — Township. — Misnomer. — A judgment against “Brown Civil Township ” is not void on account of the inaccuracy in the name of the political corporation.</p> <p>Same. — Failure to Plead Misnomer. — Estoppel.—Where a writ is served on a party, individual or corporate, by a wrong name, if there is a failure to appear and plead' the misnomer, such party is concluded, and in all future proceedings may be connected with the judgment by proper averments.</p> <p>Same. — Default.—Failure to Call Defendant. — A failure to call a party before entering a default is a mere irregularity, and not a material error.</p> <p>Same. — Summons Against Township Trustee.— Void Judgment Against Township. — A summons against “Valentine Strange, trustee of Brown Civil Township,” is not a writ against the township, but against its agent merely, and will not support a judgment against the township..</p>

<p>Bill of Exceptions. — Clerk’s Entries. — Discrepancy in Dates. — Recitals in-Bill Control. — Where there is a discrepancy in dates, concerning the order of events, between the record entries of the clerk and the recitals, in a bill of exceptions, the latter will control.</p> <p>Same. — Reserved Questions. — Exclusion of Evidence.— What Bill Must Show.— Statutes Construed. — Construing sections 627 and 630, R. S. 1881, as in pan materia, it is necessary, when an appeal is taken under the latter-section upon a bill of exceptions only, and the question reserved is upon the exclusion of evidence, that the bill of exceptions should contain enough, of the case and the evidence touching the point in controversy as to show the relevancy of the evidence rejected.</p> <p>Contract. — Action for Non-Berformanee. — Subsequent Performance. — Damages, —Where an action has been commenced, upon an accrued cause, to recover damages for the non-performance of a contract, subsequent performance will not defeat it, unless the performance is with the consent of the plaintiff, or unless the latter accepts what has been done as a partial or complete discharge of the agreement.</p> <p>Same. — -Railroad.—Agreement to Pence. — Continuance of Cause to Enable Party to Perform. — Evidence.—Where, in an action against a railroad company to recover damages for the non-performance of a contract to construct a fence along its right of way, the cause is continued until a subsequent term under a written agreement that the defendant shall by that time construct a fence of a certain quality and pay the costs of the action and the plaintiff’s attorneys’ fees, it is not error, .upon the trial of the cause, to exclude the agreement and evidence that a fence was built, ’ unless it is shown that there was a complete compliance with the agreement upon which the cause was continued, or that the plaintiff has accepted the fence so erected as a complete or partial compliance with the contract sued on.</p>

<p>Hbaihage. — Repairs by Township Trustee. — Constitutionality of Statute. — Section 7 of the act of March 8th, 1883, amending section 10 of the act of April 8th, 1881 (section 4282, R. S. 1881), requiring township trustees to keep public drains in repair, etc., is constitutional.</p> <p>Same. — Appeal.—Injunction.—Where persons whose lands are assessed by the township trustee as benefited have notice of the assessments intime to, appeal therefrom to the circuit court, where they can obtain all the relief which the statute contemplates, but fail to do so, they can not afterwards, in a suit for an injunction, obtain such relief.</p> <p>Same. — Complaint for Injunction. — Insufficiency of — For a complaint to enjoin a county treasurer from collecting assessments levied upon lands by a township trustee to reimburse the township for money paid out for repairing and removing obstructions from public ditches, which is held insufficient to obtain equitable relief, see opinion.</p>

<p>Chattel Mortgage. — Dale of Execution. — Exhibit Controls Averments in Complaint. — The date of execution stated in a chattel mortgage, which is filed as an exhibit with a complaint to foreclose it, controls the averments in the pleading.</p> <p>Same. — Recording.—Good, Faith Purchasers. — A chattel mortgage which is not recorded within ten days after its execution is not effective against purchasers in good faith of the mortgaged property.</p> <p>Same. — Presumption as to Execution and Delivery. — The presumption is, in the absence of any showing to the contrary, that a mortgage was fully executed and delivered at its date,</p>

<p>Injunction. — Drainage Assessment. — Notice.—Complaint.—An averment in a complaint to enjoin the sale of land under a ditch assessment, that there was “ no proper or legal notice ” of the proceedings to establish the drain, is a mere conclusion, and insufficient.</p> <p>Judomenti — Irregularity.—Remedy.— Infamcy. — All persons, including infants, against whom a merely irregular judgment has been taken, must seek relief therefrom by direct proceedings or by an appeal.</p> <p>Infancy.— Voidable Proceedings. — Personal Privilege. — Persons in Privity of Estate. — In respect to voidable contracts and proceedings, infancy is a personal privilege, not available to persons in privity of estate.</p>

<p>Judgment. — Summons Against Agent. — Judgment Void Against Principal.— Township. — Trustee.—-Where the summons is issued against the trustee •of a township, a judgment thereon against the township is void, it being necessary that the writ should go against the corporation.</p>

<p>Fbaudueent Conveyance. — Presumption.—Trust in Favor of Creditors.— Where one purchases and pays the consideration for real estate, and takes the conveyance in the name of another, the transaction is presumptively fraudulent as to the prior creditors of the purchaser, and, under section 2975, R. S. 1881, a trust results in their favor.</p> <p>Same. — Subjection of Property by C-editors. — Exemption from Execution. — Other Property. — The creditors may subject such property to the payment of their claims, unless it is exempt from execution, or unless, at the time of the conveyance, or at the time suit is brought, the debtor has a sufficient amount of other property reachable by the ordinary processes of the court to pay the debt without resorting to the property so conveyed.</p> <p>Same. — Refusal to Apply Other Property. — Right of Creditor to Proceed Against Property Conveyed. — If the debtor has other property, not subject to the ordinary processes of the court, which he refuses on demand to apply to the satisfaction of the debt, the creditor may proceed against the property fraudulently conveyed, and it will he no defence for the debtor to show that he had sufficient money or other property, not reachable by the ordinary processes, with which the debt could have been paid.</p>

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

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

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

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

<p>County Clerk. — Fees.—Taxation of. — A public officer, who is required to rely upon fees for his compensation, can tax only such fees as are authorized by law, and if he is unable to collect them from the person liable the loss is his, as he accepts the office with its burdens as well as with its benefits.</p> <p>Same. - Criminal Cases. — Poor Persons.— Changes of Venue.— Allowance.— Payment Out of County Treasury. — There is no' law authorizing either the circuit court or the board of county commissioners to make an allowance to the county clerk, to be paid out of the county treasury, for services performed in criminal cases, either where the accused is admitted to defend as a poor person, or where the case is brought from another county on a change of venue.</p>

<p>CbiminAL Law. — Adultery.—Fornication.—Joint Offence.— Acquittal of One-Defendant Discharges the Other. — Adultery or fornication is the joint of-fence of both the participating persons, and if one shall be acquitted the other must be discharged.</p> <p>Same. — Prosecuting Attorney.— Void Agreement to Discharge Defendant.^-Plea in Abatement. — An agreement between the prosecuting attorney, with the approval of the court, and one charged with adultery or fornication, that if the latter shall give bond for his appearance from time to time, support his family and conduct himself with propriety, the cause shall be continued until a subsequent term of court, and such defendant then discharged, is unauthorized and void, and a plea in abatement by the other defendant founded thereon is bad, unless the agreement has been so far executed as to have resulted in the legal discharge or acquittal of the defendant with whom it is made. »</p>

<p>Deed. — Covenant of Seisin. — Law Governing. — -Where a deed is made in this State purporting to convey land in another State, the question as to -whether it contains the covenant of seisin is determined by the law of this State.</p> <p>Same. — Short Form. — Covenants Embraced in. — Under the statute of this State, the words “ convey and Warrant ” comprehend and express all the covenants of warranty as fully as if they were written out at length in the deed.</p> <p>Same. — Breach of Covenant of Seisin. — Where a grantor has neither title nor possession, the covenant of seisin is broken as soon as the deed is executed.</p> <p>Same. — Special Covenant.— Limitation of General. — A special covenant “now and forever warranting and defending the said premises against all taxes against us, and against our own acts in the premises,” limits the general covenants against encumbrances and for quiet enjoyment, but not the general covenant of seisin.</p>

<p>City. — Annexation of Platted Land. — Plat by One Having no Authority. — A city has no jurisdiction to annex, by a resolution of its common council, lots laid off and platted by one who is not the owner of the land and who has no authority in the premises.</p> <p>Same. — Husband and Wife. — Mistake.—A husband can not, without authority from his wife, plat her land, and the fact that the land which hs assumes to plat was omitted by mistake from a previous plat made and acknowledged by her can make no difference.</p> <p>Same. — Estoppel.—Taxes.—Conveyance.—Street Improvement. — A wife, whose land has been platted without her knowledge or consent by her husband, is not estopped to dispute the validity of the plat, and the subsequent annexation of the land to a city, by paying city taxes and executing conveyances, without knowledge of the facts, and in the belief that such transactions relate to lots previously and legally platted by her, nor by a street improvement of which she had no knowledge and which was made at the expense of lot-owners.</p> <p>Same. — Married Woman.' — Estoppel in Pais. — Prior to September 19th,1881, when the statutes of that year went into force, a married woman’s rights in real estate could not be affected by an estoppel in pais.</p> <p>Same. — Illegal Annexation. — Recovery of Taxes. — Statute of Limitations. — Where the plat and the annexation are void, taxes assessed and collected by the city are illegal, and may, there being no estoppel, be recovered back, unless barred by the six years statute of limitations, which begins to run with each payment.</p> <p>Same. — Removal of Married Women’s Disabilities. — Statutes of 1881. — Since the taking effect of the statutes of 1881 a married woman has been under no legal disability excepting her from the operation of the six years statute'of limitations, and where the full period of the statute had run against causes of action in her favor prior to September 19th, 1881, she had two years thereafter within which to sue, and no longer.</p>

<p>National Banks.— Impairment of Capital.— Reduction of Capital Stock to-Avoid Assessment. — ■ Suspended Claims.— Subsequent Collection.— Right of Stockholder to Compel Distribution of Assets. — Where the stockholders in a national banking association, the capital of which has become impaired by reason of past due and suspended claims, to avoid a threatened assessment by the comptroller upon the stock to make good the deficiency, lawfully reduce'the capital stock in an amount equal thereto, a stockholder can not, in case the suspended claims are subsequently realized upon and carried into the account as assets, compel the bank to distribute a share of the money so realized in proportion to the amount of , stock surrendered by him.</p>

<p>Fbee Gbaved Road. — Board of Commissioners. — Jurisdiction.— Petition.— The presentation of a petition for the establishment of a free gravel road to the board of commissioners, which is in substantial conformity with the provisions of the statute, calls into exercise the jurisdiction of the board for the determination of the sufficiency of the petition in both form and substance, whether it was signed by the requisite number of land-holders, and every other fact precedent or concurrent necessary to-the granting of the petition.</p> <p>SAKE . — Judgment.—Collateral Attack. — The judgment of a board of commissioners establishing a free gravel road, after jurisdiction has been properly acquired,' can not be collaterally assailed by a complaint which denies the jurisdiction of the board, on account of an alleged non-compliance with the statute, which requires the petition to be signed by a majority of the land-holders within certain territory.</p>

<p>Specific Peefoemaítce. — Decedenld Estates. — Administrator’s Sale.— Contract. — Vendee’s Idem. — The vendee of a purchaser of land from an administrator,, who has paid the purchase-price, hut received no deed, and whose title has been invalidated by a judgment setting aside the sale by the administrator, can not maintain an action for the specific performance of the contract of sale, hut may enforce a vendee’s lien against the land for the amount of the purchase-price paid by him, and is entitled to an order requiring the administrator to re.sell the land to make assets for the payment of his debt, in an action brought for that purpose- and proceeding upon that theory.</p>

<p>From the Hamilton Circuit Courts</p>

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

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

<p>Bankruptcy. — Discharge.—New Promise. — Consideration.—A promise by a bankrupt to pay, as soon as he is able, a debt suspended by bis discharge in bankruptcy, revives such debt, and the creditor may enforce payment upon the happening of the contingency mentioned, the old debt being a valid and sufficient consideration for the new promise to pay it.</p> <p>Same.— Composition. — Secret Preference. — Fraud.—Where creditors unite in a composition agreement, a secret promise by the debtor to one creditor to pay him more than the others, or to pay him in full if he will consent to the composition, is void, and this doctrine applies to compositions in bankruptcy proceedings.</p>

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

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

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

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

<p>'■Obiminai. Law. — Brothel.—Talcing Infant Female to. — Proeuñng Her to Have Intercourse With Men. — One who takes his daughter, under eighteen years - of age, to a brothel and instructs or commands her to have sexual intercourse with men who visit the place, which she does, is guilty of the ■offence prescribed by section 2001, R. S. 1881.</p>

<p>Bill op Exceptions. — Practice.— Leave of Court for Time in Which to Prepare Bill. — Where, upon the overruling of a motion for a new trial, exceptions are taken at the time, and on the same day leave of court is asked and granted for a specified period of time beyond the term in which to-file a bill of exceptions, within which time it is filed, it is properly in the record, although other proceedings in the cause intervened between the time of taking the exceptions and the leave of court granted for the filing of the bill.</p> <p>Supreme Court.— Verdiet not Disturbed if Supported by Any Evidence.— Practice. — The verdict of a jury, which has.met the approval of the trial court, will not be disturbed by the Supreme Court on the evidence-merely, unless the record shows an absolute failure of evidence on some material point.</p> <p>Promissory Note. — Pate of Interest. — Lex Loci Contractus. — Where promissory notes, in which no interest is specified or contracted, are executed and payable in another State, or at some specified place therein, the liability of the maker as to all matters contracted for therein is governed and measured by the laws in force in that State.</p> <p>Same. — Plaeeof Payment. — Interest.—Damages.—Lex Fori. — Where, however, promissory notes are payable generally, no place of payment being fixed, the general rule is that the lex fori governs in the collection thereof; and where no interest has been provided for therein, tlie interest recoverable after a breach of the contract is recoverable, if allowed, as damages; and where interest is adjudged as damages upon such contracts, the rate of interest will be governed by the law of the place of suit.</p> <p>Instructions to Jury. — Special Finding of Facts. — Request for. — Discretion of Court. — Practice.—The question as to the time when a party shall make a request of the court to instruct the jury to find specially upon particular questions of fact, if they render a general verdict, is left by the. code to the sound discretion of tlie trial court, and in the absence of an abuse of sucb discretion the action of that court will not be interfered with on appeal.</p>

<p>'GtjabdiAN AND "Wabd. — Death of Insolvent Guardian. — Settlement of Guardianship by Surety. — Jurisdiction.—Judgment.—Estoppel.—Where the surety ■of a deceased and insolvent guardian, at the request of the ward, who ¡has become- of age, makes a final report and settlement of the guardianship matter, which is subsequently approved by the court having probate jurisdiction, and the surety by the judgment of the court is discharged from liability on the bond, it will be presumed, in the absence of a showing to the contrary, that the court acquired jurisdiction over the person of the ward, and the judgment so rendered, while it remains in force, is a bar to an action on the bond.</p> <p>Decedents’ Estates. — Pleading Special Defences.— Demurrer. — Practice.— Under section 11 of the act of March 7th, 1883 (Acts of 1883, p. 156), an administrator may prove any defence to a claim, except a set-off or counter-claim, without special plea; but where a special defence is pleaded, it may be tested by a demurrer, as in other cases, and error in ruling upon the demurrer is available as in other cases.</p>

<p>Negligence. — Tom.—Improvement of Sidewalk by Lot-Owner. — Excavation.— To a complaint against a town to recover for an injury sustained by falling, in the night-time, into an excavation in a sidewalk, an answer that the excavation was made by the owner of the abutting lot in pursuance of an ordinance requiring him to improve the sidewalk, and that he had, when the work was left on the night in question, placed proper danger signals at the excavation, which the plaintiff', without any fault on the part of the lot-owner, had disregarded, is good.</p> <p>Same. — Danner Signals. — Keeping Watch. — Only ordinary care is required of a municipal corporation, its agents and contractors, and it is sufficient to show that proper signals or guards were placed about an excavation on quitting work, unless there are circumstances peculiar to the particular case making it necessary that a watch be kept, and if such signals or guards are removed during the night by a wrong-doer there is no liability.</p> <p>Same. — Liability of Town for Acts of Property-Omer. — The acts of a property-owner, who improves a sidewalk under an ordinance adopted in pursuance of section 3307, E. S. 1881, are not the acts of the town in such a sense as to charge the latter for his negligence; but, in order to charge the corporation, evidence of his negligence must he supplemented by evidence that the town authorities were negligent, or that the work directed to he done was intrinsically dangerous.</p>

<p>Stbuck Juey. — Peremptory Challenge. — The parties to an action do not have the right of peremptory challenge in the case of a struck jury, demanded under section 525, K. S. 1881.</p> <p>Same. — Estoppel.—Practice.—One who has peremptorily challenged struck jurors after his adversary has been permitted, over objection; to do so, is not thereby estopped to complain of such ruling.</p> <p>Dontbact. — Sale of Machine. — •Warranty.—Right of Buyer to JReject. — A contract for the sale of a machine which provides that if such machine fails, upon a fair trial, to do good work and give satisfaction the seller will take it back and tlie buyer shall pay nothing, does not give the latter the right to arbitrarily reject it, merely because he is not satisfied with it; but it must appear that it fails to give satisfaction on account of defects and a failure to do good work.</p>

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

<p>Chattel Mortgage. — Certificate of Acknowledgment. — Notary Public.— Use of Another’s Seal. — Recording of Instrument. — The fact that a notary public, in a certificate of acknowledgment to a mortgage, uses a plain notarial seal not his own, and differing somewhat in design from the one ordinarily used by him, does not affect the validity of the instrument nor render its recording illegal.</p> <p>Same. — -Breach of Official Duty. — Facts Constituting Must be Pleaded. — In such’ case, in order to entitle a party assailing the mortgage to avail himself of any breach of duty on the part of the officer in certifying the acknowledgment, it is necessary that the facts constituting the breach shall be affirmatively pleaded.</p> <p>Same. — Instrument Perfect in Form.— Unverified. Denial. — Where the complaint to foreclose the mortgage avers that it? was acknowledged and recorded, an unverified general denial only requires the plaintiff to produce an instrument showing on its face due execution, acknowledgment and registry. t</p> <p>Same. — Description.—For a description of mortgaged personal property which is held to be sufficiently specific, see opinion.</p> <p>Same. — Possession by Mortgagor. — Authority to Sell.- — Fraud.—Under the statutes of this State fraud is a question of fact, and can not be decided upon the face of a mortgage authorizing the mortgagor to retain possession and sell the mortgaged property.</p> <p>Same. — Taking Personal Judgment. — Subsequent Foreclosure. — A party who sues on a note and mortgage is not precluded from subsequently obtaining a decree of foreclosure by taking a personal judgment for the amount due, as such judgment does not merge or impair the mortgage security, and the lien continues until foreclosed.</p> <p>Same. — Estoppel.—One who accepts a chattel mortgage, in which it is stipulated that it is second and subsequent to another mortgage executed upon the same property, is estopped to assert that the prior mortgage was made with intent to defraud creditors.</p> <p>Practice. — Striking Out Evidence. — A party can not complain of the striking out of evidence, the admission of which was not authorized by his pleadings.</p>

<p>Mobtgage. — Series of Notes. — Default in Payment.— Stipulation that Whole Debt Becomes Due.— Waiver. — Where a mortgage given to secure notes maturing at different times provides that upon the failure of the mortgagor to pay the first note at maturity the others shall become due, no election on the part of the creditor being stipulated for, the latter, by merely accepting the amount of the first note after default, does not thereby waive his right to treat the whole debt as due.</p> <p>Pleading. — Abatement.—Premature Bringing of Action. — Practice.—Matter tending to show that an action has been prematurely brought is only available by plea in abatement, and if pleaded with defences in bar without verification may he stricken out or held bad on demurrer.</p> <p>Pbactice. — Galling Case for Trial. — Calling a case for trial is an announcement or declaration by the court that it has been readied in its order, and that a judicial examination of the issues upon which the decision of the case depends is about to begin.</p> <p>Change oe Ve.nue. — Buie of Gourt. — Where a rule of the trial court requires applications for changes of venue to be presented before the case is “ called for trial,” and on appeal the record shows that an affidavit for a change of judge was filed the day before the day set for trial, and nothing more, the denial of the application is erroneous.</p>

<p>1S!bw TetaIi. — As of Bight. — Bond.—Defects.— Curative Statute. — Defects in a bond executed by a party under section 1064, E. S. 1881, upon applying for a new trial as of right, are cured by section 1221, and the principal and sureties in such bond are bound as fully as if it were in all respects according to the statute requiring it.</p> <p>Same. — Setting Aside Order Granting.— Waiver of Objections to Bond. — The omission of the words “ and damages ” from such a bond does not authorize the setting aside of the order granting the new trial, on a motion made a year later, and in the absence of any previous objection to the sufficiency of the bond as executed and approved. In such case the objection to the bond, being technical and not having been made at the proper time, will be deemed waived.</p>

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

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

<p>Negligence. — Barbed Wire Fence Along Highway. — Liability of LandOwner. — The act of a land-owner in erecting upon his property, and along the line of a public highway, a barbed wire fence, does not in itself render him liable to one who sustains an injury therefrom, but there may be a liability if the fence is constructed and maintained in such a manner as to constitute negligence and a breach of duty owed to others or to the community.</p> <p>Same. — ■Injury to Animal Wandering Upon Highway.— When Owner May Becover Damages. — Where an order has been made by the proper authorities permitting horses and cattle to run at large, a land-owner, who negligently constructs and knowingly maintains in such a manner as to be dangerous, and in effect a trap, a barbed wire fence between his pasture-field and the adjacent highway, is liable for the value of a horse which,, while feeding along the highway, is attracted by other horses within the field and by the growing grass therein, and in attempting to enter-the enclosure becomes entangled in the wires and is killed.</p>

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

<p>Judgment. — Irregularities.—Collateral Attack. — Mere irregularities are not available in a collateral attack upon a judgment.</p> <p>Same. — Drainage Proceeding. — Notice.—Sufficiency.—Where there was some notice in a drainage proceeding, although defective, a collateral attack upon the judgment can not be maintained.</p> <p>Same.— Pleading. — Conclusions.—An allegation in a complaint to set aside a judgment that “ no notice was given as required by law” is a conclusion, as the sufficiency of the notice is a question for the court.</p>

<p>Practice. — Finding of Facts.— When Regarded as a General Finding. — A finding made by the court upon the trial of a cause, no matter how full it may be, will be regarded on appeal as a general finding, unless the record shows that it was made in writing, at the request of one or both of the parties, and signed by the judge.</p> <p>Same. — Resened Questions of Law. — Causes for New Trial. — Alleged errors occurring at the trial must be made grounds of a motion for a new trial, and this rule applies as well to questions of law reserved under section 630, R. S. 1881, as to questions reserved under the general rules of practice authorized by the code.</p> <p>Same. — Questions Arising on Evidence. — Bill of Exceptions. — Where, under section 630, B. S. 1881, the reserved question of law arises on evidence admitted at the trial, all the evidence which has any bearing upon the reserved question must be made part of the record by the bill of exceptions, to enable the Supreme Court to apprehend the particular question involved.</p>

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

<p>New Tbial. — Newly Discovered Evidence. — Diligence.—A new trial will not be granted on the ground of newly discovered evidence where, by the use of reasonable diligence, such evidence might have been obtained and used at the trial.</p> <p>Same. — Eacls Constituting Diligence Must be Set Out. — Mere allegations of due diligence in endeavoring to obtain evidence in the first instance is not enough, but the facts constituting the diligence used must be stated, so the court may determine whether it was sufficient.</p> <p>Same. — Absent Witness. — Efforts to Procure Testimony of. — Where a party is-denying the validity oí a marriage alleged to have been performed by a named minister, in a certain city, at a specified time, and knows, before the trial that the testimony of such minister is important, he can not, after the term, obtain a new trial on the ground of newly discovered evidence, unless he excludes negligence on his part in ascertaining the whereabouts of the minister, shows that he moved promptly' to obtain his testimony, and that he could not, by the exercise of rear sonable diligence, procure the same at the trial.</p>

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

<p>.Mortgage. — Interest of Mortgagee in Insurance Effected by Mortgagm■ on Mortgaged Premises. — A mortgagee, merely as such, has no interest, legal or equitable, in a policy o£ insurance effected by the mortgagor upon the mortgaged premises for his own benefit, in the absence of any covenant or contract requiring the latter to insure for the benefit of the former.</p> <p>Same. — Covenant.—Equitable Lien of Mortgagee. — Where a mortgagor has covenanted that he will keep the mortgaged premises insured for the benefit of the mortgagee, and either has effected or thereafter effects insurance in his own name, though without the mortgagee’s knowledge,, and without intent to perform the agreement, such insurance will be treated as having been effected under the agreement, and the mortgagee will have an equitable lien thereon.</p> <p>Same. — Performance by Mortgagor of Covenant to Insure. — Where a mortgagor, who has covenanted to insure the mortgaged premises for the benefit of the mortgagee, has effected solvent insurance, in good faith, in the name- and to the acceptance of the latter, to an amount adequate to secure the debt, and has kept the policies alive until loss occurs, he is not in default, and will be responsible thereafter only for such infirmities as existed in the insurance at the time the policies were accepted, or such as may have resulted from his own subsequent conduct.</p>

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

<p>^Partition. — Sale of Real Estate. — •Appointment of Commissioner. — Pleading.— Allegations that a commissioner to sell real estate was appointed at a certain term of court, and gave bond, which was approved by the court, etc., sufficiently shows that the appointment was made by the court.</p> <p>■Same. — Averment that Money is Due. — A complaint on the bond alleging that the commissioner’s final report showed that he had in his hands a certain sum as the relator’s distributive share of the proceeds of the ¡sale, which had never been paid to the relator by any one, is good, without a direct averment that there is due from the commissioner the sum mentioned.</p> <p>.'Same. — Commissioner to Sell. — •Vacancy.—Power to Appoint Successor.— Although there is no statute expressly providing for the appointment of a successor, in case of a vacancy, to a commissioner appointed to sell land in partition proceedings, the court nevertheless has power to fill such vacancy, and to require a bond conditioned for the faithful discharge of the duties oí the trust.</p> <p>Same. — Duty of Commissioner to Make Distribution. — Pond.—Under section 1204, R. S. 1881, it is the duty of the commissioner or his successor to pay the money arising from the sale to the persons entitled thereto, according to their respective shares, under the direction of the court, and this statutory provision becomes a part of the bond executed by him as fully as if written therein.</p> <p>"Same. — Paying Proceeds of Sale to Clerk.— When no Defence to Action on Bond. —-The fact that the commissioner paid to the clerk of the court the proceeds of the sale and took his receipt therefor, is no defence to an action on the bond of such commissioner by distributees, unless such payment was authorized by an order of the court.</p>

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

<p>Trial. — By Court. — Jury.— Waiver of Objection. — Practice.—Where a party, does not ask for a trial by jury, nor object to a trial of the cause by the court, with a jury as advisory merely, it is too late to object on appeal to the mode of trial.</p> <p>Judgment. — Former Adjudication. — Estoppel.—A judgment in a former action between the same parties is conclusive, and bars a subsequent, action, if the same facts were presented for adjudication and an opportunity afforded to litigate the entire subject-matter.</p>

<p>Negligence. — Evidence.—Presumption.—Negligence is never presumed, and a plaintiff who alleges it as a cause of action must establish the breach of duty which constitutes the negligence or a recovery will be denied.</p> <p>City. — Obstruction in Street. — Liability of Oily. — Negligence.—Notice.-—Where an obstruction is placed on a street or sidewalk by a wrong-doer, on account of Which a passer-by is injured, the city cannot be held liable for such injury unless it has actual notice of the obstruction, or the same has remained on such street or sidewalk such a length of time as to make it the duty of the corporate authorities to take notice of its existence.</p> <p>.Same. — Where an obstruction, of which the city has no notice, has been placed on a street by a third person, and. is permitted to remain an hour and three-quarters, when it occasions an injury to a passer-by, the city is not guilty of negligence, and is not liable.</p> <p>Same. — Liability for Acts of Licensees. — Notice.-—A city is not liable for the acts of persons it licenses to use its streets, unless the thing authorized is intrinsically dangerous, or the municipal authorities have notice of the negligence of its licensees.</p> <p>Pbactice. — Trial Without Issue. — Supreme Oourt. — Remedy.—Where there is in fact no answer to a complaint, but the cause is tried upon the theory that there is an answer of general denial, the plaintiff can not, on appeal, take advantage of the absence of an answer; his remedy is by appropriate motion in the trial court.</p> <p>Sijpbeme CoimT. — Reversal for Want of Evidence. — Practice.—Where there is a failure of the evidence to sustain the verdict on any one material point, the judgment will be reversed on appeal.</p>

<p>Pleading. — Reply.—Must be Responsive. — A reply which does not respond! to all the paragraphs of answer to which it is addressed is bad on demurrer.</p> <p>Statute oe Limitations. — Promissory Note. — Partial Payment by One Joint Maker. — Effect as to Others. — A payment upon á promissory note by one joint and several maker will not defeat the operation of the statute of limitations as to any other maker, nor deprive the latter of his right to avail himself of the statute as a defence.</p> <p>Same. — Mortgage.—Non-Residence.—Insolvency.—-Where, in an action upon a note and mortgage, one of four joint and several makers answers the twenty years statute of limitations, a reply alleging the death and insolvency of two, and a partial payment by the' third prior to the running of the statute, after which the latter had left the State, and still continued to be a non-resident, is bad.</p> <p>Same. — Debt not Barred, Mortgage not Barred. — A payment upon a note secured by mortgage, if sufficient to take the note out of the operation of' the statute of limitations, will have a like effect upon the mortgage; and, so long as any part of the debt remains unpaid and not barred, the-lien of the mortgage continues unimpaired.</p>

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

<p>Railroad. — Passenger.—Right to be Discharged at Depot. — Liability of Carrier for Ejecting at Another Place. — A passenger has a right to be discharged at the regular depot of the carrier, and if ejected at another place the carrier is liable.</p>

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

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