Volume 113 — Indiana Reports

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

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

<p>Railroad. — Judgment for Stock Killed or Injured. — Enforcement of. — Mode of Procedure. — Statute Construed. — The proceeding of a judgment plaintiff, under the provisions of section 4030, R. S. 1881, to enforce the payment of his judgment for animals killed or injured by the locomotives, etc., of a railroad company, is a new and original suit or proceeding, to be instituted only in the circuit court of the proper county.</p> <p>Same.. — Pleading.—Statutory Motion in Effect a Complaint. — Issue.—In such a proceeding the pleading required to be filed by the plaintiff, though called in the statute a motion, may be tested by demurrer as to the sufficiency of the facts alleged therein, and issues either of law or fact formed thereon as in other civil actions.</p> <p>Same. — Judgment.—Appeal to Supreme Court. — The decision of the court upon the hearing of such suit or proceeding is not interlocutory, but is a final order and judgment, from which an appeal will lie to the Supreme Court, without regard to the amount of the judgment sought to be enforced.</p> <p>Pleading. — Motion to Strike Out. — A motion to strike out a pleading admits the truth of all the facts well pleaded, for the purposes of the motion, and should not be sustained if the facts stated therein are relevant or pertinent to the question to which they are addressed, though not sufficient to withstand a demurrer.</p> <p>Judgment.— Void When Rendered by Justice Acting as Attorney. — Impeachment of. — A judgment rendered by a justice of the peace, who at that time, and during all the various stages of the proceeding, was and had been acting as attorney for the party in whose favor such judgment was rendered, is absolutely void, and may be attacked and impeached whenever and however it is sought to be enforced.</p>

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

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

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

<p>Vendor’s Lien. — Innocent Purchaser. — A vendor’s lien, having attached, can only be defeated by the voluntary act of the holder, unless the rights of innocent purchasers intervene.</p> <p>Same. — Judgment for Part of Purchase-Money. — Judicial Sale. — Pwchaser with Notice. — Priority of Glaims. — A sale to satisfy a judgment in favor of the assignee of a part of the purchase-money debt, the grantor not being a party, will not, in the absence of an estoppel, defeat the lien of the latter as against a purchaser with notice, but the rights of the purchaser' take precedence of the lien.</p>

<p>Notice.— Recorded Instrument.— Vendor and Purchaser.— Real Estale.~Encumbrance. — A purchaser of real estate is charged with constructive-notice of the facts shown by the record of the deed or deeds under which his grantor claimed title; and where it is shown by the record of any such deed that such grantor agreed to assume and pay off a mortgage encumbrance on the land, he is put upon inquiry thereby as to the condition of such mortgage.</p> <p>Same. — Mortgage.—Entry of Satisfaction. — In such case, however, where the record of the mortgage referred to in the deed shows that the same lias, been paid, and properly and legally released by an entry of satisfaction on the margin thereof, made by the mortgagee, the purchaser has a right to rely upon such entry as a complete discharge of the mortgage: debt.</p> <p>Vendor and Purchaser. — Assumption of Encumbrance by Grantee. — Mortgage. — Equitable Assignment of. — Satisfaction.—Remedy.—Innocent Purchaser. —A mortgagor of real estate, who sells the same and in his conveyance thereof provides that his grantee shall assume and pay a part of the mortgage debt, and who, on default of his grantee, is compelled to pay the whole of such debt, can only become the equitable assignee of his mortgagee by procuring from the latter a proper assignment of so much of the debt as his grantee was bound to pay, and if lie fails so to do, but procures a satisfaction and discharge of the whole of the same, he is without remedy, as against a subsequent purchaser of the land who has no actual notice.</p>

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

<p>Raiuroad. — Failure to Restore Highway at Crossing. — Obstruction.—Negligence. —Underthe fifth subdivision of section 3903, R. S. 1881, it is the duty of a railroad company, which constructs its track across a public highway, to restore the highway to its former state as nearly as possible, and its failure to do so constitutes actionable negligence in case an injury is caused thereby.</p> <p>Same. — Death of Horse Caused by Pulling Loaded Wagon Over Obstruction.— - Liability of Railroad Company. — Where the railroad company leaves its track nine inches above the surface of the highway, it is liable for the value of a horse, the death of which is caused by extraordinary exertion in pulling a loaded wagon over the obstruction; and the fact that the owner of the horse had knowledge of the condition of the crossing, and the further fact that lie did not lighten his load when he encountered the obstruction, do not of themselves constitute such contributory negligence as will defeat a recovery.</p>

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

<p>Cexminai, Law.— Indictment. — Description of Stolen Money. — Unnecessary Particularity. — Proof.—Under section 1750, B. S. 1881, it is only necessary, in an indictment for the larceny of money, to describe the money stolen simply as money; but if a particular description is given, it must be proved substantially as charged, or a verdict of conviction will not be sustained.</p>

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

<p>Will. — Trust.—Bents and Profits.— Widow. — Education of Children. — Execution. — Levy and Sale. — Injunction.—A restator gave to his wife the use of all his real estate, until his youngest child should become twenty-one .years of age, for the purpose of rearing and educating his children. When the youngest child should become twenty-one years old, the land was to be divided between the widow and children as the law would cast it. The widow elected to take under the will.</p> <p>Held, that, for the purposes stated in the will, the widow took the rents and profits of the land as trustee, and, during the minority of the children, such rents and profits are not subject to levy and sale on an ordinary execution against her, and injunction will lie.</p> <p>Same. — Creation of Trust. — Technical Words. — Intention of Testator. — It is not necessary that technical language should be used to create a trust, but the intention of the testator, if apparent, will be carried into effect in •all proper cases by declaring the donee or first taker to be a trustee for •those whom the testator intended to benefit.</p>

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

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

<p>Statute of Limitations. — Action for Breach of Marriage Contract. — Infancy. — Legal Disability. — Where a cause of action has accrued to an infant female for the breach of a marriage contract, she, being under disability, may bring suit within two years after becoming twenty-one years of age.</p> <p>Pleading. — Harmless Error.-— It is a harmless error to sustain a demurrer to a paragraph of answer where the facts alleged therein are admissible under another paragraph which remains in the record.</p>

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

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

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

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

<p>Cemeteby. — Purchaser of Burial Privilege. — Plight Acquired. — One who buys the privilege of burying his dead in a cemetery acquires no general right of property, but only a right to use the ground as a place of interment, and the rules governing the cemetery in force at the time the privilege is acquired measure the extent of the use.</p> <p>Same. — Catholic Cemetery. — Consecrated Ground. — Bight of Lot-Holder to Inter Non-Catholic Therein. — -Where land is conveyed for use as a burial-place for members of the Catholic Church, and is taken possession of by the' proper officers of that religious denomination and consecrated according to the laws of the church, a lot-holder has no right to inter therein any person not recognized by the church authorities as a Catholic.</p> <p>Same. — Injunction.—Bight of Church Representatives to Maintain.' — Injunction . will lie at the suit of the bishop of the diocese and the local priest, who, according to the usages of the church, are vested with control, to restrain the holder of a lot in a Roman Catholic cemetery, which has been consefcrated for burial purposes according to the laws of that denomination, from interring therein the body of his son, who was not in communion with the church at the time of his death, and who died by his own hand.</p> <p>Same. — Trust.—Death of Trustee. — Control of Property. — Church Laws. — A trust conferred upon a bishop, or other ecclesiastical functionary, so far as concerns title and ownership of land, is not in itself different from a trust vested in any other natural person, and the death of the trustee vests the trust in the courts; but, regardless of the question of title, church, officials who, under the laws of the church and by virtue of their offices, have control of the property, may maintain suits for injunctive relief concerning the same, in proper cases.</p>

<p>Dbainage. — Failure of Commissioners to Report at Time Fixed. — Motion to Dismiss Petition. — Remonstrance.— Waiver. — Practice.—A petition for drainage-may be dismissed upon the failure of the commissioners, without an order of the court granting delay, to file their report at the time fixed therefor, but such motion comes too late after the party has appeared to> the petition and filed a remonstrance thereto, or asked leave to do so, and a motion to dismiss, or strike out the petition, after such action, should be overruled.</p>

<p>Pleading. — Failure to Sign Complaint. — Amendment.—The failure to sign a complaint is a formal defect, which is cured when the pleading is subscribed under leave to amend.</p> <p>Same. — Motion for Leave to Amend. — Precedence Over Motion to Reject. — Amotion for leave to amend a complaint by signing it has precedence over a motion by the defendant to reject.</p> <p>Same. — Practice.—Motion to Quash Summons. — The defect caused by a failure to sign a complaint is reached by a motion to reject, and not by a motion to quash the summons.</p> <p>Tenants in Common. — Growing Crops. — Contract.—Partnership.—An agreement between a renter of land and another that the latter shall have an interest in the former’s portion of the grain to be grown, if he will help sow and harvest the same, does not create a partnership, but constitutes the parties owners and tenants in common of the grain.</p> <p>Same. — Sale Without Consent of Co-Tenant.— Conversion. — An owner in common can not sell or otherwise dispose of the whole property, without authority from his co-tenant; and if he assumes to do so, the purchaser only acquires the interest of his vendor; or if he converts the whole to his own use, or denies the right of his co-owner, he is liable.</p> <p>Pbactice. — Arrest of Judgment. — Where there is no counter-claim, a motion in arrest of judgment must be addressed to the plaintiff’s pleadings, and ought not to be sustained unless all the paragraphs of the complaint are so bad as not to be cured by the verdict or finding.</p>

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

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

<p>Telephone. — Rental.— Violation of Statute Fixing. — Criminal Law.— One who, being the owner and operator of a telephone line, in violation of the provisions of the act of April 13th, 1885 (Acts of 1885, p. 227), charges and collects a monthly rental in excess of three dollars, the rate fixed by such act for one telephone, is subject to the penalty therein prescribed.</p> <p>Same. — Fxtra Charge for Non-Subscribers. — -A fixed charge of one dollar per month, in excess of the three dollars allowed by the statute, for non-subscribers, which is charged and collected whether the telephone is used by non-subscribers or not, and without regard to the number of such persons who may usé it, is.a violation of the law.</p>

<p>Election. — Contest of. — Trial by Jury not Allowed. — In contested election cases a trial by jury is not permissible. *</p> <p>Same. — Seereey of Ballot. — Illegal Vote. — Presumption.—In a contested election proceeding, the voter can not be compelled to disclose the names of the persons for whom he voted, unless (as provided by statute, the validity of which is not passed on) the vote was illegal; and the legal presumption is in favor of the legality of the vote, which presumption must be overthrown before the witness can be compelled to make the disclosure.</p> <p>Same. — Residence.—Student.—Qualification of Voter.— Intention. — A student, who goes to a college town with the intention of remaining simply as a student, and who does not change his intention, does not acquire a residence; but where the intention is formed at any time to make such town his domicile, in good faith, and to the exclusion of all other places, he becomes a citizen, and, being otherwise qualified, is entitled to vote, although he intends to remain only during a limited period.</p> <p>Same. — Evidence.—Fraud,.—A party to a contested election proceeding is entitled to show, by direct or indirect evidence, that there was fraud on the part of the election officers, resulting in his injury, that votes cast were illegal, or that, by changing the ballots, or by wrongfully interfering with the election papers, a greater number of votes were credited to his opponent than he was entitled to; and the right to this evidence is not affected by the fact that illegal votes were cast for such party, or that frauds were perpetrated in his interest.'</p> <p>Same. — Ballots Best Evidence. — Presumption.—In such a case the ballots are the best evidence, and are prima facie valid if they come from the proper place and the proper custodian; but they may, nevertheless, be attacked, and the presumption in their favor be overthrown by evidence either direct or indirect.</p> <p>Witness. — Cross-Examination.—Practice.—A party who introduces a witness and examines him upon a given subject, can not successfully object to a cross-examination on that subject because a question asked on direct examination was not answered. •</p>

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

<p>Supreme Court. — Pleading.—Defective Complaint. — Where a complaint is challenged for the first time in the Supreme Court it must be radically and fatally defective, wholly omitting the averment of material and necessary facts essential to the existence of the cause of action attempted to be stated therein, to authorize or require the reversal of the judgment on account of the alleged insufficiency of facts set out in the pleading.</p> <p>Fraudulent Conveyance.— Pleading.— Complaint.— Necessary Averments of. — Supreme Court. — In an action by a creditor to annul and set.aside an alleged fraudulent conveyance of real estate, the plaintiff must show by the averments of his complaint, not only that the grantor in such conveyance had no other property subject to execution at the date of the conveyance, but that he had no such property at the time of the commencement of the action; and a complaint without such averments may be successfully challenged for the first time in the Supreme Court.</p>

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

<p>Jurisdiction. — Actions Ex Delicto. — Diability Arising Under Statute of Another State.- — An action for damages may be maintained in the courts of this State to enforce a liability accruing under the statute of another State for the death, by the wrongful act of the defendant, of the plaintiff’s intestate, the statutes of both States upon the subject involved being of the same import and character, and there being jurisdiction of the defendant. Buckles v. Ellers, 72 Ind. 220, modified to the extent of conflict.</p>

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

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

<p>Pleading. — Demurrer Must Precede Answer.— Waiver. — After pleading to • the merits of an action, there can be no demurrer, either for want of facts or defect of parties, without a withdrawal of the answer and leave of court, and where a demurrer to a complaint is pending, it is waived by the filing of an answer.</p> <p>Assignment. — Execution of.— Contract. — Action by Assignee. — Evidence.—Consideration. — Motive. —Under section 5501, R. S. 1881, a contract for the delivery of stock in an incorporated company may be assigned ; and, in an action by the assignee upon such contract, while the execution of the assignment may be challenged, and proof required that it was properly made, yet if the assignment be admitted, no question can be raised either as to the consideration upon which it was made or as to the motive which prompted it.</p> <p>Same. — Mes Adjudícala. — Estoppel.—Where, in an action by an assignee upon a written instrument assigned to him, the assignor, who is a necessary party defendant, without objection, permits a prosecution to final judgment, he is estopped from thereafter maintaining a suit upon the same instrument.</p> <p>Same. — Practice.—Appearance and Disclaimer by Assignor After Verdict. — In an action upon a written instrument by an assignee against the maker, it is not an available error for the court,, after verdict, to permit the assignor to enter his appearance to the action and file his answer disclaiming any interest in the subject-matter of such action.</p>

<p>Negligence. — Railroad.—Street.—Trespasser.—A person who walks upon a railroad track laid along a public street is not a trespasser, and may recover for a negligent injury, if without fault.</p> <p>Same.— Gontributory Negligence. — Pleading.—A general averment that the plaintiff was without fault is sufficient, unless the facts specially pleaded clearly show that he was guilty of contributory negligence.</p> <p>Same.— General Averment of Negligence.— Uncertainty. — Negligence maybe charged in general terms, and if the defendant desires a more definite statement of the facts, his remedy is by motion to make the complaint more specific, and not by demurrer.</p> <p>Same. — Highway Grossing. — Prior Right of Passage as Between Travellers and Railroad Trains. — While in a sense the rights of travellers and the railroad company upon a highway crossing are equal, yet in respect to the priority of passage the right of the company is superior.</p> <p>Same. — Slopping Train or Slacking Speed at Grossing. — Presumption.—Instruction. — A railroad company is not bound to bring its train to a stop or to slacken its speed when a person is seen crossing or about to cross the railroad track at its intersection with a highway or street, but may presume that the traveller will take all proper precautions to avoid injury, and it is error to refuse to so instruct the jury, in a proper case.</p> <p>Evidence. — Objections to. — Must be Specific. — Objections to evidence to be available must be reasonably specific. It is not enough to state that the evidence is incompetent, or that it is immaterial or irrelevant, but the particular objection must be fairly stated.</p>

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

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

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

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

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

<p>Railroad.— Wrongful Entry Upon Land. — Injunction.—Application for Must be Seasonable. — Where a railroad company enters upon land without the consent of the owner, or by the exercise of the power of eminent domain, such entry is wrongful and may be enjoined, if application be seasonably made. <■</p> <p>Same.— When Injunction Will not Lie. — Remedy.—One who consents to the use of his land by a railroad company for a right of way, and, as a subcontractor, grades and constructs the line across his land, and subsequently acquiesces for many years in the claim of the corporation, can not maintain a suit for injunctive relief, his proper remedy being an action for compensation.</p>

<p>Supreme Court. — Reversal of Judgment. — Shaming of Error. — Presumptions.— All reasonable presumptions will be indulged in the Supreme Court in favor of the rulings of the trial court, and a judgment will not be reversed unless the record affirmatively shows error which was, or probably was, prejudicial to the'party complaining.</p> <p>Evidence. — Divorce.—Injuries to Wife. — Exhibitions and, Declarations. — Res Gestas. — Presumption.—Where, in a divorce proceeding, witnesses are permitted to testify to exhibitions by the wife, in the absence of the husband, of injuries to her person, and to statements then made by her that they were inflicted by her husband, it will be presumed on appeal, in the absence of a showing to the contrary, that the exhibitions and statements were so near to the time when the injuries were inflicted as to be a part of the res gestee, and were hence properly admitted in evidence.</p>

<p>Account. — Amount Stated in Bill of Particulars. — Limitation of Recovery.— Interest. — In an action upon an account, the plaintiff is not limited in his recovery to the amount stated in the bill of particulars, where interest thereon is recoverable under section 5200, B. S. 1881.</p>

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

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

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

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

<p>Contract.— Consideration.— Sufficiency. — Judgment of Contracting Parties.— Where explanatory facts are necessary to show the insufficiency of the consideration of a contract, the courts can not, in the absence of such facts, substitute their judgment as to its sufficiency for that of the contracting parties.</p> <p>Special Finding. — Silence as to Material Fact. — Presumption.—Where the-special finding is silent as to a material fact, it will be presumed, as. against the party having the burden, that such fact was not proved.</p> <p>Same. — Judgment Upon. — Supreme Court. — Ordering New Trial. — Where the ends of justice will be better subserved by granting a new trial than by ordering judgment to be pronounced upon a special finding of facts, that course will be pursued.</p>

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

<p>Promissory Note. — Security for Marriage. — Contemporaneous Parol Agreement. — Payment.—Pkidence.—"Where, contemporaneously with the execution of a promissory note, it is orally agreed by the parties that, if the maker shall marry the payee, the latter will dismiss proceedings in bastardy and for breach of marriage contract pending against the former and the note shall be deemed satisfied, the agreement and its performance by the maker may be proved to defeat an action by the payee on the note, as showing payment; but such defence may be avoided by a showing that the agreement of the defendant was not only to marry the plaintiff, but also to treat her properly, which he had failed to do, and that on account of his cruelty she had been compelled to get a divorce.</p>

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

<p>Forcible Entry. — Trespass.—Compensatory Damages. — Motive.—Advice of Attorney. — In a civil action for forcible entry upon or for malicious injury to property belonging to another, only compensatory damages arc recoverable, and the defendant is not entitled to show the motive which induced his wrongful act, and the averment that he acted under the advice of an attorney may be struck from his answer.</p> <p>Same. — Exemplary Damages. — It is only where the jury may give exemplary or punitive damages, that the facts and circumstances which go to explain the motive or disclose the intent of the party committing the wrongful act may be shown.</p> <p>Same. — Landlord and Tenant. — Evidence.— Unsigned Lease. — In an action by a tenant against his landlord to recover da,mages for forcible entry, an unsigned lease prepared by the defendant’s attorney, containing a condition that the landlord might enter and expel the tenant before the expiration of his term, which condition, with others therein contained, the latter denies having agreed to, is not admissible in evidence against him.</p> <p>Same. — Elements in Estimating Damages. — Where a landlord has wrongfully entered and ejected his tenant, who shortly thereafter regains possession, the jury may, in assessing the latter’s damages, take into consideration and compensate him for the inj ury to his goods, the inconvenience and expense of being deprived of their use and of restoring them to their proper places, the bodily or mental anguish or suffering, the injury to his pride and social position and the sense of shame and humiliation at having his family turned into the public street.</p>

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

<p>'Criminal Law. — Judge Pro Tempore. — Trial by. — Appointment.— Waiver of Objection— Where a person other than the regular judge presides at the trial of a cause, and the record on appeal is silent upon the question of his authority to preside, it is too late, no objection having been made in the trial court, to raise any question concerning his appointment in the Supreme Court.</p> <p>•Same. — Statement of Judge. — Bill of Exceptions. — Practice.—A written statement or narration by the presiding judge, setting forth that he tried the cause by agreement of the parties, without any appointment in writing, but not possessing the requisites of a bill of exceptions, is not' a part of the record and will not be considered.</p>

<p>Drains. — Repairs.— Township Trustee.— Discretionary Power. — Act of 1SSS Constitutional. — Section 7 of the act of 1883 (Acts of 1883, p. 180), vesting in township trustees a discretionary authority to determine when repairs of public drains are necessary, is constitutional and valid, even conceding that it does not require notice of the intention to order repairs.</p> <p>Same. — Cost of Repairs. — Appeal from Trustee’s Assessment. — The authority conferred by such act upon the circuit court on appeal to determine the cost of repairs and removal of obstructions, includes the authority to determine whether the assessment which the appeal assails was made to defray such cost. *</p> <p>Same. — Notice.^-Although, in cases of this character, notice of some kind is required preparatory to a final assessment of benefits, the Legislature may prescribe wha.t it shall he and how it shall he given.</p> <p>Same. — Extent of Trustee’s Authority to Malte Repairs. — The authority of the township trustee, under the act of 1883, is to restore the ditch as nearly as practicable to its original condition; he can not construct a new ditch, or enlarge and improve an existing one, except in so far as the repairing and removal of obstructions necessarily enlarge or improve it.</p> <p>Same.— When Assessments May be Defeated. — Where the trustee, under color of making repairs and removing obstructions, departs materially from the original specifications, widens and deepens the ditch, expending in the work a sum largely in excess of its original cost, lie exceeds his authority, and assessments levied by him will not be sustained as against land-owners who attack them by appeal in the manner provided by the statute.</p>

<p>Intoxicating Liquor. — Sale on Sunday. — Sufficiency of Affidavit. — Duplicity. —An affidavit for selling intoxicating liquor on Sunday, which charges, in substance, that on a certain day, the same being Sunday, the defendant unlawfully sold to named persons a less quantity than a quart of intoxicating liquor, to wit, four gills of beer, for the sum of ten cents, to be drunk as a beverage, is not bad for duplicity as also charging the offence of selling without a license.</p> <p>Same. — Joint Sale. — Sufficiency of Evidence to Establish. — For evidence held to show a joint sale of intoxicating liquor to two persons, by indirection, see opinion.</p> <p>¡Same. — Name.—■ Variance. — "Where a sale to “ John Brown ” is charged, and the evidence shows that not to be the true name of such person, but that he had formerly been a slave, belonging to a man named Brown, by which name he had since been known, there is no variance.</p>

<p>Judgment. — Error in. — Collateral Attack. — A judgment can not be collaterally impeached by a party on the ground merely that it is erroneous.</p> <p>Same. — Quieting Title. — Effect of Decree. — Res Judicata. — A decree in an action to quiet title effectually adjudicates all claims to an interest in the land, whatever their form or character, existing at the time .the decree is rendered and not protected by it.</p> <p>Railroad. — Easement.—Quieting Title. — Res Judicata. — In an action against a railroad company to quiet title to land used as a right of way, an easement claimed by the defendant will be cut off by a decree in the plaintiff’’s favor, unless it be set up and be protected by the decree.</p> <p>Same. — Appropriation of Land. — Damages.—Evidence.—All damages, prospective as well as otherwise, arising from the appropriation of land by a railroad company, must be recovered in one action, and it is proper to prove all injuries that may naturally and proximately result from the construction and operation of the road.</p> <p>Same .— Liability of Company Succeeding to Possession of Land, Wrongfully Taken. — A railroad company which, as the successor of a trespasser, comes into possession of land in violation of the rights of the owner, is liable to the latter for all damages that may bo inflicted.</p>

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

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

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

<p>Supreme Court. — Diminution of Record. — Dismissal of Appeal. — Gertiorari. —The remedy for a diminution of the record is by application for a writ of certiorari, and pot by a motion to dismiss the appeal.</p> <p>Appeal. — To Supreme Court. — Actions Originating Before Justice or Mayor.— Replevin. — Statute Construed. — The exception in section 632, K. S. 1881, forbidding appeals to the Supreme Court in actions originating before a justice of the peace or mayor of a city, where the amount in controversy does not exceed fifty dollars, does not apply to actions of replevin.</p>

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

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

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

<p>Judgment.- — Sheriff’s Sale. — Injunction.—Complaint.—General Allegation that Judgment is Void. — A mere general allegation in a complaint to enjoin a sheriff’s sale, that the judgment under which the sale is about to be made is void, without a statement of the facts showing its invalidity, is not sufficient.</p> <p>Same. — Filing Copy With Pleading. — Part of Record. — The filing of a copy of a judgment with a complaint does not make it a part of the pleading, a judgment not being a written instrument within the meaning of section 362, B. S. 1881.</p> <p>Same. — Die».—Property Exempt from Execution. — Conveyance of. — Rights of Purchaser. — A judgment against a resident householder whose entire property, real and personal, is less than the amount allowed as exempt, from execution, does not become a lien upon the real estate of the judgment defendant, and a purchaser from the latter takes it exempt therefrom.</p>

<p>Partition. —By Parol Agreement — Enforcement of. — Possession.—Acquiescence. — Improvements.—"Where there is a parol agreement by tenants in common for partition, which is so far carried into effect that the parties-take possession of the several shares allotted to them, or that one of the parties, with the knowledge and acquiescence of the other, goes into-the exclusive possession of the share set off to him, making thereon-valuable improvements, such partition is valid and enforceable, unless infected with fraud.</p> <p>Same. — Arbitrators.—Second Award. — Evidence.—Where the persons selected by tenants in common to make a division of land, in pursuance of a parol agreement for partition, report a division, which is mutually unsatisfactory, and the parties afterwards agree between themselves as to-the share each shall have, and consent that the original arbitrators may report a division in conformity with the agreement, which they do, such report is admissible in evidence in support of the partition.</p> <p>Same. — Attorney and Client. — Confidential Communications. — Statements made by a client to an attorney for the purpose of being communicated and acted upon by the latter while conducting negotiations for the settlement of a controversy over the division of land between the client and another, are not such confidential communications as the attorney is forbidden to disclose in evidence.</p>

<p>Partnership.— Death of Member.— Dissolution. — As a general rule, the death of a partner dissolves the partnership, where no express provision has been made to the contrary; but there are exceptions to the rule, dependent upon the inherent nature of the business, of the firm, upon the contract of partnership, or up'on the testamentary disposition which the deceased partner makes of his interest, with the assent of the surviving members.</p> <p>Same. — Promissory Note.— Unauthorized Signing. — Where, in an action upon a promissory note, signed by a firm and others, the execution ' of the note by the firm is denied, and the court finds that its name was attached without authority, it is immaterial as to other makers what persons constituted the firm, and a finding, therefore, that the partnership was dissolved by the death of a member, even if erroneous, is harmless.</p> <p>Promissory Note. — Partnership.—Principal and Surety.— Unauthorized Signing of Firm Name. — Notice.— When Surety Not Discharged. — -When the name of a firm is without authority attached to a promissory note as security for the individual debt of one partner, a third person, who subsequently signs the note, also as surety, and believing the firm’s signature to be genuine, is bound to the payee, if the latter had no notice of the unauthorized character of such signature, although the payee had knowledge that the debt evidenced by the note was the individual debt of the principal obligor.</p> <p>Same. — Maker.—Endorser.—S. and another executed a note payable to the former, who then endorsed it to the plaintiff.</p> <p>Held, that S. is primarily liable as maker.</p>

<p>Mortgage. — Equitable Assignment. — The endorsement of a note secured by mortgage effects an equitable assignment of the mortgage.</p> <p>Same. — Recording Assignment. — Negligence.—Estoppel.—Priority of Mortgage. —Where the assignee of a mortgage may, under the recording acts, by procuring and putting of record an assignment, give notice of his rights, his neglect to do so will estop him from asserting the priority of his mortgage over that of a subsequent mortgagee, who took his security on the faith of a release executed by the administratrix of the original mortgagee.</p> <p>Same.- — Act of 1877. — Construction.—Extent of Application. — The act which went into force July 2d, 1877 (sections 1093, 1094, B. S. 1881), providing for the assignment of “ any mortgage of record,” applies as well to mortgages then of record and theretofore equitably assigned as to those thereafter assigned.</p> <p>Same. — Release by Administratrix. — Reliance Upon Record. — Notice.—-A subsequent mortgagee, without notice, will be justified in relying upon a release of a prior mortgage, executed by ,the administratrix of the prior mortgagee, entered of record four years after the act of 1877 went into force, without demanding the production of the note and mortgage and without inquiring as to the authority of the administratrix to execute the release.</p> <p>Same.— Corporation. — Agent.—Notice.—A finding that the agent of a corporation, who negotiated a loan of its money, acted in reliance upon a release of record of a prior mortgage, without knowledge that it had not been paid, is a sufficient finding that the corporation for which he acted had nopiotice.</p> <p>Statute.— Construction. — Retroactive Effect.— A statute must be so construed as to make it effect the purpose for which- it was enacted, and, if necessary to that end, it will be applied to past as well as to future transactions, although it does not in terms so .direct, unless to do so will impair some vested right or violate some constitutional guaranty.</p> <p>Same. — Judicial Notice. — Contemporaneous History. — In ascertaining the intent of the Legislature in the enactment of a statute, courts will take judicial notice of such contemporaneous history as led to and probably induced the passage of the law.</p>

<p>Htjsband and Wife. — Judicial Sale. — Act March 11th, 1875.— Wife’s Inchoate Interest. — Partition.—Under the act of March 11th, 1875 (R. S. 1881, sections 2508 to 2511), the inchoate interest of the wife in the real estate of her husband, sold on execution against him, vests and becomes absolute in her on the day of sale, and upon her death shortly after the sale, her husband, to whom such interest descends, may maintain a suit for partition against the purchaser at the sheriff’s sale.</p> <p>Same.— Voluntary Assignmentby Husband. — Does Not Prevent Vesting of Wife’s Inchoate Interest. — The passing of the legal title to the real estate from the husband by a deed of assignment for iiie benefit of creditors, does not prevent the inchoate right of the wife from becoming absolute and vested under such act of 1875, by virtue of a subsequent sale of the property upon judgments which became liens thereon when the legal title was in the husband.</p> <p>Same.— In What Real Estate Wife’s Interest Vests. — Application of Act of 1875. —In all judicial sales of real estate in satisfaction of judgment or other liens which attach when the legal title is in the husband and grow out of debts owed by him, in which real estate the wife has an inchoate interest by virtue of her marriage, which interest is not ordered to be sold or barred, such interest, under the act of 1875, becomes absolute and vested in her by virtue of such sales, whether at the time thereof the husband had the legal title or not.</p> <p>Same. — Quantity Taken by Wife. — Construction of Act of1875. — Under the act of 1875 the wife, by virtue of a judicial sale of her husband’s real estate, takes no vested interest in the excess above $20,000, as to which her rights are left as they were prior to the passage of such act, and depend upon her surviving the husband; but in so much of the real estate as shall not exceed $20,000 in value she takes one-third in fee simple, which, however, is liable to be reduced to one-fourth, in a suit brought against her by the creditors for that purpose, unless the whole of the property sold does not exceed in value $10,000.</p> <p>Same.— Vesting of Inchoate Interest Subject to Prior Lien. — Descent.—Where the wife’s inchoate interest in a lot by virtue of a judicial sale becomes absolute and vested in her subject to the lien of a sewer assessment, which attached prior to the passage of the act of 1875, upon her death such interest descends to the husband subject to such lien, and a sale of the lot thereafter in satisfaction of the assessment vests in the purchaser the title to the whole lot.</p>

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

<p>Husband and Wife. — Purchase of Promissory Note. — Endorsement.—A wife may buy a promissory note from ber husband, and his endorsement will convey it to her as an endorsee.</p> <p>Same. — Money Named by Wife in Separate Business. — Money earned by a wife, in a business carried on by her in her own right, belongs to her. Section 5130, K. S. 1881.</p>

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

<p>Municipal Corporations.— Changing Oradeof Street or Alley. — Consequential Damages. — Under the statute of this State, municipal corporations are liable to abutting lot-owners for consequential damages resulting from a change in the established grade of a street or alley.</p> <p>.Same. — Lowering Surface of Alley — Access to Property. — Special Injury. — The injury must be special, and not merely such as the public may suffer ; and where access to a lot is cut off by lowering the surface of an alley several feet below the previously established grade, there is a special injury, entitling the owner to damages.</p> <p>Same. — Evidence.— Value of Property.— Opinion of Non-Expert. — It is not necessary that a witness shall be an expert to entitle his opinion as to the value of property to go to the jury; but if it appears that he has an acquaintance with the value of property in the vicinity, his opinion is competent.</p> <p>Same. — Opinion as to Value of Property Before and After Change of Grade.— In an action by a lot-owner for damages resulting from a change of grade, it is competent to take the opinion of witnesses as to the value of the property before and after the change was made.</p> <p>Same. — Improvements with Reference to Grade. — It is not necessary that a lot-owner should have made improvements with reference to a grade as established in order to entitle him to recover damages resulting from a change in the grade, but the fact that improvements have been so made may augment the damages.</p> <p>Same.— Only One Action Maintainable. — Prospective Damages. — A change in the grade of an alley, done under color of legal right, is presumptively permanent in character, and a lot-owner whose property is injured thereby can not split his cause of action, but must recover all damages, past and prospective, in one action.</p>

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

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

<p>Railroad. — Amendment of Charter.— When Valid. — After vested rights have been acquired, the charter of a corporation can not he so amended as to impair them, unless the power to amend is expressly reserved; but where the original and amendatory acts are passed at the same session of the Legislature, with only a brief interval between, during which-there is no acceptance of the provisions of the original act and no rights are acquired thereunder, the amendatory act is valid.</p> <p>Same. — Failure to Complete Eoad Within Time Prescribed. — Eights of LandOwner. — The failure of a railroad company to commence or complete its road within the time prescribed by its charter is a breach of a duty owed to the State, and does not entitle a private citizen, after the road has been completed for a number of years, to recover possession of land taken for a right of way.</p> <p>Same. — Remedy of Land-Owner. — Law Governing. — Act of Incorporation. — The remedy of a citizen whose land has been taken for railroad purposes is to be sought under the law in force at the time of the entry, and is not limited to the provisions of a previous act under which the railroad company was incorporated;</p> <p>Same. — Trespass.—Damages.—Ejectment. — Estoppel. — If the entry by the railroad company is unlawful, it is a trespasser, and an action for trespass may be maintained; or, if the entry is without right, and possession is wrongfully withheld, ejectment will lie, unless, by some act or omission, the land-owner has precluded himself from asserting his right to possession.</p> <p>Same, — Verdict in Ejectment. — Description of Land. — Where, in an action for the possession of land, the complaint claims title to one hundred and twenty acres, but the other pleadings and the answers of the jury to interrogatories show that only a narrow strip is in controversy, a verdict reading “ We, the jury, find for the plaintiff and assess his damages at forty-two dollars,” is not sufficient to enable the court to render the proper judgment, and a venire de novo should be granted, it being necessary in such a case, under sections 564 and 579, R. S. 1881, that the verdict should describe the property.</p> <p>Judicial Notice. — Public Laws. — Acts of Incorporation. — The public laws of a State are before its courts without being pleaded or inserted in a record, and to this class belongs an act, declared to be a public one, incorporating a railroad company.</p> <p>Supreme Court. — Reversal of Judgment. — Evidence not in Record. — If the evidence is not in the record, the Supreme Court will not reverse the judgment, if, upon any supposable state of facts relevant to the issue, the rulings of the trial court were right.</p> <p>Verdict. — Interrogatories.— Presumptions. — No presumptions will be indulged in aid of answers to interrogatories, but reasonable intendments will be made in favor of the general verdict, and, unless tjiere is an irreconcilable conflict, judgment must go upon the latter.</p>

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

<p>Pbomissoby Note.— Want of Consideration. — General Plea of. — In an action upon a promissory note, a general plea that the note “ was given without any consideration whatever ” constitutes a good defence.</p> <p>Same. — Illegal Consideration. — Facts' Showing Must be Pleaded. — Where the maker pleads that the note sued on was given upon an illegal consideration, he must state all the facts which constituted the consideration and which rendered it illegal.</p> <p>Same.— Contract for Future Delivery of Commodity. — Margins.-—If a commodity is bought for actual future delivery, the fact that the parties are required to deposit a margin, as the market may demand, to secure the delivery of the commodity or the payment of the purchase price, as the case may be, does not vitiate the contract.</p> <p>Same. — Insufficient Plea of Illegal Consideration. — An answer that the note sued on was given for an illegal consideration, in that the only consideration therefor was the payment of margins on wheat that had never been delivered to the defendant by the plaintiff, or by any one for him, is bad for want of sufficient facts.</p>

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

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

<p>Common Carbier. — Railroad.—Failure to Furnish Transportation. — Delivery of Goods. — While a carrier is not liable for failing to furnish cars or to transport goods, unless offered at a usual or designated place for receiving freight, yet where goods are placed at a station upon the line of a railroad to be transported, the refusal of the carrier, upon demand, to furnish cars for the transportation of the property relieves the owner from making any further delivery or offer to deliver.</p> <p>Same. — Reliance Upon Contract. — Seeking Other Means of Transpmiaiion. — Reduction of Damages. — While one who is subject to injury from the breach, of a contract must make reasonable exertions to reduce his damages as much as practicable, yet where he delivers goods upon the line of a railroad in pursuance of a contract with the company for their transportation, he may rely upon the fulfilment of the contract, without attempting to obtain other modes of transportation, until he receives notice of the refusal or inability of the carrier to execute its contract.</p> <p>Same. — Contract.—Acceptance of Proposition. — Notice.—Presumption.—Where a complaint to recover for the breach of an alleged contract avers that the plaintiff contracted with the defendant, and that the terms of the' contract are set forth in a letter written on behalf of the defendant to plaintiff, it will be presumed that whatever was necessary in the way of accepting and giving notice of the acceptance of the terms proposed in the letter, in order to complete the contract, took place.</p> <p>Same. — Mutuality.—Estoppel.—If a contract, although not originally binding for want of mutuality, be nevertheless executed by the party not bound, so that the other party has actually received the benefit contracted for, the latter will be estopped from refusing performance on his part on the ground that the contract was not originally binding on the party who has performed.</p> <p>Sam:e.- — Ultra Vires. — Contract Before Completion of Road to Carry Freight.— A contract entered into by a railroad corporation before the completion, of its line of road, for the transportation of freight after the completion of its line, is not ultra vires, but is binding and enforceable.</p> <p>Same. — Receiving Benefits of Void Contract. — Estoppel.—A corporation which has received the consideration and retained the benefits of a contract which has been fully executed by the other party thereto, can not assert that it had no power to make such contract.</p> <p>Special Verdict. — Form.—Discretion of Trial Court. — Counsel may prepare and ask to have submitted to the jury such forms of a special verdict as in their judgment the evidence justifies the jury in returning; yet the degree of supervision which the trial court may exercise in such matters is left largely to its discretion.</p> <p>Same. — Harmless Error. — A party who is not harmed by the refusal of the trial court to strike out parts of a special verdict, on the ground that they embrace nothing more than conclusions of law, can not predicate available error on such ruling.</p>

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

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

<p>Criminal Law. — Forgery.— Value of Property Sought to he Obtained. — Indictment. — Under section 2206, R. S. 1881, defining the crime of forgery, the value of property sought to be obtained by means of a forged instrument is not of the essence of the offence, and a failure to allege that it was of value does not render the indictment bad.</p> <p>Same. — -Uncertainty in Forged Instrument. — Averment of Extrinsic Facts. — A charge of forgery may be predicated upon an instrument reading, “ Halls and Davisons: pleas let this boy have a soot of cloth (Signed) Mrs. Wilson. And let him have a cap, too,” if extrinsic facts showing the fraudulent tendency of the order are averred.</p> <p>Same.— Uncertainly in Criminal Pleadings. — Hoiv Peached. — For uncertainty in the statement of the facts constituting the offence intended to be charged, an indictment or information can only be questioned by a motion to quash, and never by a motion in arrest, or by an assignment of errqj in the Supreme Court.</p> <p>Same. — Bill of Exceptions. — Filing.—Under section 1847, R. S. 1881, a bill of exceptions which the record does not show to have been filed by the clerk, will not be considered as constituting a part of the record.</p>

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

<p>Dentistky. — Act to Regulate Practice of, Constitutional. — The act of March 7th, 1887, to regulate the practice of dentistry, prescribing what qualifications a person who enters upon the practice of that profession shall possess, and providing for the issuing of certificates to applicants by a. board of examiners, is constitutional and valid.</p> <p>Same. — Judicial Knowledge. — The courts will take judicial knowledge that, the dental profession is one requiring skill, and that an unskilled person may injure one who employs him, and this being so, the Legislature may prescribe the qualifications of those permitted to practice that profession.</p> <p>Same. — Legislative Power.— Wisdom and Expediency of Act. — The Legislature having plenary power over the whole subject, it alone must be the judge as to what is wise and expedient, both as to the qualifications required and as to the method of ascertaining those qualifications, and so long as it keeps within the Constitution, the courts can exercise no supervisory power.</p> <p>Same. — Corporation.—Creation by Special Act. — The provision delegating to the Indiana Dental Association the naked power to name three members of the board of examiners, provided for in said act, is not a grant of corporate power, and hence is not a violation of the constitutional provision forbidding the creation of corporations by special act.</p> <p>Same. — Board of Examiners. — Judicial Functions. — While the board of examiners in some degree acts judicially, it performs no judicial duty within the meaning of the Constitution, and, therefore, the act is not invalid because it does not make such provisions as would be necessary if the examiners constituted a judicial tribunal.</p> <p>Same. — Time and Plo.ce of Meeting of Board. — Notice.—Prosecution for Practicing Without License. — The time and place of meeting of the board of examiners are to be fixed by the persons whom the law has vested with authority, and one who desires a license must make reasonable inquiry, and if he fails to do so, he can not defend a prosecution for practicing without a license on the ground that no notice of the meeting of the board had been given him.</p> <p>Same. — Statute Invalid in Part. — A part of a statute may be declared invalid, yet if enough remains to constitute a complete statute, the latter may be enforced.</p>

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

<p>Set-Ojvf.— Judgments. — Exemption from. Execution.— Manned, Woman. — A. judgment against a husband and wife can not be set off against a judgment held by them, where they make due claim to the exemption provided by law, the right of the wife to claim exemption being as clear, under section 5124, R. S. 1881, as that of her husband.</p>

<p>New Tbiae. — As of Eight. — Granting in Absence of Opposite Party. — An order granting the defendant in a suit to quiet title a new trial as of right under the statute (section 1064, B. S. 1881), may lawfully be made in the absence and without the knowledge or consent of the plaintiff.</p> <p>Same. — Notice of Granting. — Setting Aside.— Waiver. — "Where a new trial as of right has been granted under section 1064, on an application made after the term at which the judgment was rendered, the failure of the party obtaining it to give the opposite party ten days’ notice thereof before the next succeeding term, as provided in section 1065, does not operate as a waiver of his right to such new trial or authorize the court to set aside the order granting it.</p> <p>Same. — Statute Construed. — The provision in section 1065, requiring a party obtaining a new trial as of right to give the opposite party ten days* notice thereof before the term next succeeding the granting of the application, is merely to prevent either party from forcing the other into trial during the term at which the new trial is granted, under the provisions of section 516.</p> <p>Same.— Undertaking for Costs and, Damages. — Where the opposite party does not object to the granting of a new trial, on the ground that the undertaking to pay costs and damages, required by section 1064, has not been given, and the record fails to show whether or not such undertaking was given, it will be presumed that it was either given or waived.</p> <p>Same. — Motion to Vacate Order Granting. — Special Appearance. — A motion to vacate an order granting a new trial as of right should not be entertained until the party making it has first entered his full appearance to the action. A special appearance for the purpose of making such, motion is not sufficient.</p>

<p>Dbainage. — Notice.—Collateral Attach. — Where some notice of the presentation of a petition for a drain has been given, and adjudged sufficient by the court in taking action on the petition, such notice will be held sufficient when the proceedings are collaterally attacked.</p> <p>Same. — Estoppel.—One who joins with others in petitioning for the construction of a drain, is estopped from claiming that he did not have proper notice of the presentation of the petition.</p> <p>Same. — Assessments.—Instalments.—Times of Payment. — Statute Construed.— The provision in section 4277, B. S. 1881, that assessments may be required to be paid in instalments, not exceeding twenty per cent, per month, at such times as the commissioner may fix, after thirty days’ notice, means calendar month, and the times fixed for payment of such instalments need not necessarily be exactly one month apart; but, even if the commissioner should exceed his authority in that respect, it would not invalidate the assessment as originally made.</p> <p>Same. — Misconduct of Commissioner and Contractor. — For allegations of misconduct on the part of the commissioner charged with the construction of a drain and of the contractor, which are held insufficient to defeat the collection of assessments, see opinion.</p>

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

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

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

<p>Infant. — Contract.—Disaffirmance.—Rights of Parties. — While an infant, who has purchased goods on his own account, may disaffirm his contract and recover the money paid, without first returning or offering to return them, he can not, after such action, hold the goods purchased as against his vendor.</p> <p>.Same. — Partnership. — Disaffirmance of Contract of. — Receiver.— Priority of Claims. — Where an infant partner renounces and disaffirms his contract of partnership, and files his petition in court asking the appointment of a receiver, he will be held to have thereby consented that the court shall deal with the assets and close out the business so as to settle the ultimate rights of the parties concerned; and in such case, the court will treat such assets as partnership assets, as in any other case, and apply them first to the payment of the debts of the firm.</p>

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

<p>Principal and Surety. — Suretyship, How Fixed and Determined. — Knowledge of Principal. — The relation of suretyship is fixed by the arrangement and equities between the debtors; it depends upon the relations existing between them, and is determined by inquiring who received the consideration of the contract, or who, according to the arrangements actually made and existing among themselves, ought to pay the debt. The relation may be changed between the debtors without the knowledge of the creditor if he is not thereby injured.</p> <p>Same. — Statute Construed. — Set-Off.—Pleading.—Parties.■—Under the provision of section 349, R. S. 1881, which allows a debt due the principal defendant from the plaintiff to be pleaded as á set-off against a note sued on, the “principal defendant” means the person who, according to the relations existing between the makers of the note at the time of the commencement of the suit, sustains the character of principal debtor, or the one then primarily liable for the debt.</p>

<p>City. — Street Improvement. — Contract for. — Duty of Council to Order Estimate.— Remedy. — Mandamus.—Where a contract, valid on its face, is entered into with the common council of a city for the improvement of a street, the expense of which is to be collected from adjacent lot-owners, and work is performed under it, it is the duty of the council to order an estimate, when applied for, leaving the validity of the contract to be controverted by the property-owners; and in case of a refusal to order such estimate, mandamus is an appropriate remedy.</p> <p>Vebdict. — General verdict Not Controlled by Answers to Interrogatories. — Practice. — The answers of a jury to interrogatories will not prevail against or control the general verdict unless they are irreconcilable with it.</p> <p>Supreme Court. — Judgment.—Worm of. — Motion to Modify. — Practice.—No objections to the form of a judgment will be considered in the Supreme Court unless there has been a motion to modify addressed to the trial court.</p>