Volume 114 — Indiana Reports

<p>Ihsubanoe. — Other Insurance. — Stipulation Against.— What is not Other Insurance. — If a second policy of insurance is void on its face, or if there arises from the whole instrument a presumption of invalidity for want of power to issue the policy in the first instance, it will not constitute other insurance within the meaning of a stipulation against such insurance.</p> <p>Same.— What is Other Insurance. — Where, however, a policy valid on its face has been issued, presumably within the power of the insurer, to avoid which proof of extrinsic facts is necessary, and such policy has been accepted by the assured for the purpose of obtaining additional insurance, and is held by him as a subsisting policy at the time of loss, it constitutes other insurance within the meaning of the contract. 1</p> <p>•Same. — Pleading.—To an answer setting up a violation of the stipulation against other insurance, it was replied that there was also a condition against other insurance in the policy subsequently obtained, and that such policy had been obtained without disclosing the existence of the one issued by the defendant, wherefore it was void.</p> <p>Held, that the reply is bad.</p> <p>Pheading. — Sufficiency of. — How Determined. — The sufficiency of a paragraph of answer, when demurred to, must be determined upon the facts stated therein, and not upon matters elsewhere appearing in the record.</p>

<p>Will. — Trust.—Partial Intestacy. — Descent.—Relinquishment.— A will provided that the testator’s wife should “ have the sole control, use and benefit ” of his estate, for the support and maintenance of herself and their child, so long as she remained the testator’s widow. There was no further disposition of the property. The widow accepted the provisions of the will, but subsequently remarried.</p> <p>Held, that the will conferred upon the widow no separate or individual estate in the property, but created a trust to continue during her widowhood only.</p> <p>Held, also, that as the will made no disposition of the property beyond the creation of a trust for a limited time, what remained at the expiration of the trust descends under the law governing the estates of persons dying intestate.</p> <p>Held, also, that as the widow’s acceptance of the terms of the will was not inconsistent with her contingent estate under the law, it did not operate as a relinquishment of her interest, and she and the child take equally, under section 2486, R. S. 1881.</p>

<p>Intoxicating Liquor. — Damages Resulting from, Unlawful Sale. — Action, for. —Repeal of Statute. — In so far as section 10 of the act of March 17th, 1875, regulating the sale of intoxicating liquors, defined and prescribed the punishment for a public offence, it was repealed by implication by section 186 of the act of April 14th, 1881 (section 2093, R. S. 1881); but with respect to the cause of action given by section 5323, B. S. 1881, to any person injured or damaged in person, property or means of support, on account of the use of intoxicating liquor sold in violation of such section 10, the latter section is in full force as a necessary part of section 5323.</p>

<p>Master and Servant. — Negligence.—Dangerous Employment. — Assumption of Risk. — Promise of Employer to Remedy Defect. —An employee, who continues in the service of his employer after notice of a defect augmenting the danger, assumes the risk as increased by the defect, notwithstanding he may object or complain, unless the master expressly or impliedly promises to remedy the defect.</p> <p>Same.- — Night Worh. — Furnishing Light to Employee. — Liability of Employer.— Where a light, as the employee knows, is essential to the safe performance of his work as a watchman in a railroad freight yard, in the absence of a promise to furnish the light, on which promise the employee relies, the employer is not liable for an injury resulting from an attempted performance of the service without it, although it is the master’s duty to provide the light, and although the servant had previously complained of the danger, and demanded that the light be provided.</p> <p>Same. — Great and Immediate Danger. — Where an employee knows that the danger is great and immediate, such as a reasonably prudent man would not assume, ho can not recover for an injury, even though he remained in the employer’s service in reliance upon the latter’s promise to remedy the defects which produced the danger.</p> <p>Instructions to Jury. — How Considered on Appeal. — An instruction will be considered in connection with the other instructions of the series upon the same subject; and if, when so considered, the law is expressed, no available complaint can be made, although one instruction, standing alone, may be incomplete or may contain an inaccurate statement. Negligence. — Supreme Court. — Consideration of Evidence. — Where there is no conflict of testimony, the Supreme Court must decide the legal effect of the testimony in the record, and in doing so does not depart from the rule that it will not weigh the evidence.</p>

<p>Mortgage. — Deed Absolute on Face. — A deed, absolute on its face, may be shown to have been intended as a mortgage, and be so treated in equity.</p> <p>Same. — Trust.—Deed, to Secure Advancements. — -A person who accepts a deed for the land of another, and agrees with him to advance money to pay his debts, and to sell the land to raise the money with which to repay himself the sum or sums thus advanced, holds such land as mortgagee, and not as trustee.</p> <p>Same. — Refusal to Make Advancements. — Measure of Damages. — If, in such a case, after receiving the deed, the grantee and mortgagee refuses to make the advancements agreed upon, he is liable in damages to the mortgagor, and the measure of damages is not the value of the land, nor the sum which he agreed to advance, but the actual damages resulting from the violation of the contract in refusing to make the advancements.</p> <p>Same. — Redemption.—Agreement Cutting off Right of. — An agreement in a. mortgage, or otherwise made at the same time with the mortgage, cutting off the right of redemption, will not be upheld.</p> <p>Statute oe Frauds. — Conveyance of Real Estate. — Agreement to Pay Debts of Grantor. — A promise by a grantee of real estate to pay debts of the grantor in consideration of the land conveyed, is not a promise to pay the debts of another, within the meaning of the statute of frauds, and hence need not be in writing.</p> <p>Same. — Agreement to Pay Purchase-Price of Land. — A promise to pay the purchase-price of land conveyed is not within that provision of the statute of frauds which inhibits the maintenance of an action upon a verbal contract for the sale of land.</p> <p>Vendor and Purchaser. — Agreement of Grantee to Pay Liens and Debts.— Right of Action. — Where a vendee of real estate, in consideration for the land, agrees to pay off liens, and debts of the grantor, but afterwards refuses to do so, the grantor may maintain an action against hion with- ■ out first paying off such liens and debts.</p>

<p>Negligence. — Repairing Highway. — Liability of Comiy. — The duty of repairing highways being imposed by statute upon township trustees and road supervisors, a county is not liable for an injury caused to a traveller by the negligence of those charged with such duty.</p> <p>Same. — Gonditions Essential to Make Gounty Liable. — Before liability for negligence can attach to a county, there must be a breach of some duty expressly imposed upon it by statute, and the statute must also have conferred upon its board of commissioners the power to raise and appropriate the means for the performance of the duty.</p> <p>Same. — Repairing Public Bridge. — Obstruction of Highway. — Negligence of Independent Agents. — County not Liable for. — A county is not liable for an injury caused to a traveller by the negligent obstruction of a highway by the officers or agents to whom it has committed the work of repairing a public bridge, as persons selected under such circumstances are independent public agents, who are personally responsible for their misconduct or delinquency.</p>

<p>Highway. — Opening of. — Injunction.—An injunction to restrain the opening of a highway will not lie where the proceedings under which it was established are not totally void, nor where there is an adequate remedy' by appeal.</p> <p>Same. — Petition and Notice. — Sufficiency of. — Collateral Attach. — The implied decision by the board of commissioners, by the assumption of jurisdiction, that the petition and notice for the establishment'of a highway are sufficient, is conclusive as against a collateral attack.</p> <p>Same. — Failure to Receive Notice. — Injunction.—Irreparable Damage. — Where notice of the presentation of a petition for a highway is given according to law, the failure of any person to receive actual notice thereof is no cause for a stay of proceedings by injunction. If irreparable damage is likely to he inflicted, that is a cause for remonstrance.</p> <p>Same. — Description.—Monument.— Marsh. — A well defined marsh may he used as a monument, when appropriate for that purpose, in defining the line of a proposed highway.</p> <p>Same.— Word “About" in Description. — The word “ about,” where the context limits and restrains its meaning, does not materially impair the certainty of a description.</p> <p>Same.— General Sufficiency of Description. — In describing the proposed line of road, it is enough if the geueral description is such that a surveyor can, with the assistance of the points definitely named, trace and designate the route.</p> <p>Same. — Oul de Sac. — May be Laid Out. — A cut d&sac may, in certain cases, be laid out and established as a highway.</p> <p>Same. — Judicial Notice. — Courts will take judicial notice of the county in which a public highway is located, where the lands to be affected by it are described by sections, townships and ranges.</p>

<p>Verdict. — Jury.— Return of Two Verdicts. — Venire De Novo. — Where two verdicts are returned by a jury, one for the plaintiff for the amount of his demand, and the other for the defendant on a set-off and counterclaim, the jury should be sent hack, with instructions to return a single verdict on all the issues; but where this is not done, and judgment is rendered for an amount arrived at by deducting the amount found for the defendant from that found for the plaintiff, it is error, and a venire de novo should be awarded.</p>

<p>Municipal Corporation. — Intoxicating Liquor. — License.—Municipal corporations have power to exact a license from one who has a State or county license, as well as from all other persons who keep shops for the sale of intoxicating liquors to he used on the premises.</p> <p>Same. — Statutory Offences. — Can Not be Made Punishable by Ordinance. — Section 1640, B. S. 1881, prohibiting towns and cities from making acts punishable by ordinance which are made public offences and punishable by the State, does not apply to an ordinance providing a punishment for selling intoxicating liquor without first procuring a license from the town or city, that not being an offence under the statutes of the State.</p> <p>Same. — Pleading.—In a complaint to recover a penalty fixed by ordinance, it is sufficient to recite the number of the section violated, without setting it out. If the defendant predicates his defence on the invalidity of the ordinance he must bring it forward.</p>

<p>Contract. — Against Good Morals. — Public Policy. — Replevin.—Where the owner of personal property parts with the possession thereof under a contract which is against good morals and void as against public policy, the law will not aid him to recover the possession of such property, but will leave the parties in the situation in which they have placed themselves.</p> <p>Instructions to Jury. — Reversal of Judgment. — Where all the instructions given, considered as an entirety, state the law applicable to the case, the judgment will not be reversed because of mere inaccuracies or loose expressions in any of the instructions, separately considered.</p>

<p>Tax Saee. — Purchaser’s Lien.— Void Sale. — The statutes of this State vest in the purchaser at a tax sale, whether he holds under a deed or under a certificate merely, a lien upon the land upon which the taxes were leviable, in all cases except where the sale is void because the land was not subject to taxation, or because the taxes had been paid before sale, or because the description is not sufficient to identify the land.</p> <p>Same.— Injunction.— Complaint. — Tender.— Bringing Money into Cowl.— A complaint to enjoin1'the execution of a deed to the purchaser at a tax sale is bad unless it shows a sufficient tender, and that the tender is kept good by bringing the money into court. An averment that the plaintiff is ready and willing to pay, and offers to pay, whatever sum shall be adjudged to be due the certificate-holder, but not showing that the money is brought into court, is insufficient.</p>

<p>Ta'x Sale. —Redemption.— Quieting Title.— limitation of Action.— Deed.— Section 250 of the tax law of 1872, which required actions for the recovery of real estate sold for taxes to be brought within five years from - the time sales were made, did not apply to an action by the owner to establish his right to redeem and to quiet title; and neither that section nor the fifteen years’ statute of limitations is available to a tax purchaser, unless he actually occupies the land, or has constructive possession under a duly recorded deed not void on its face, and these facts must appear.</p> <p>Same. — Presumption of Invalidity.- — -In such case, where the finding of the trial court is in favor of the owner, it will, in the absence of a showing to the contrary, be presumed on appeal, as against the tax purchaser,, upon whom the burden of proof in that respect rested, that the sale was invalid and that the invalidity appeared on the face of the deed.</p> <p>Same. — Tender.—Where the amount due is uncertain, or depends upon . different and doubtful constructions of law, it is only necessary that the party in default shall tender and bring into court the amount admitted, or which he in good faith believes to be due.</p>

<p>Execution. — Personal Property. — Levy TJpon. — Expiration of Lien. — Rights of Other Creditors. — Chattel Mortgage. — Under section 743, B. S. 1881, if a judgment plaintiff fails to take out a second execution the lien of a levy on personal property expires at the end of thirty days from the return of the writ under which the levy was made, and, as between the judgment plaintiff and a subsequent mortgagee, the levy will be deemed vacated, and such mortgagee may thereafter subject the property to sale in satisfaction of his debt, discharged from any right of the prior creditor.</p>

<p>Trust. — Debtor and Creditor. — Husband and Wife. — Fraudulent Grantee.— Where a husband, with intent to defraud his creditors, pays purchase-money liens upon his wife’s real estate, she having knowledge of and participating in his fraudulent purpose, she occupies the position of a fraudulent grantee, and is chargeable in equity as a trustee of the husband’s creditors to the extent of the sum so paid, and they may reach, the money in either the land or the avails of a sale.</p> <p>Same. — Where a husband, to defraud his creditors, gives money to his-wife, who yields no consideration and who accepts the money with knowledge of his fraudulent purpose, she is chargeable as q trustee, and may be compelled to account as such at the suit of the husband’s creditors.</p> <p>Same. — Equitable Belief.— When Granted. — There being, under the code of this State, but one form of action, equitable relief will be granted whenever the facts well pleaded demand it.</p> <p>Fbaudulent Conveyance. — Exemption from Execution. — There can not be a fraudulent conveyance of property which is exempt from execution.</p> <p>'Attachment. — Affidavit.—Quashing Proceedings. — An affidavit in attachment, which fails to show that the property sought to be reached is subject to execution, is not sufficient, and the proceedings may be quashed-</p>

<p>Tetjst.— Will.— Vested Estate. — A bequest to named persons jointly of “ one-fifth part of my estate, after my just debts are paid, and not otherwise disposed of, to remain in the hands of my executor until they become of age,” vested a present and equal interest in the legatees.</p> <p>Same. — Guardian.—Execution of Trust. — The trust created by the will could not be changed or defeated by paying the money, upon the death of the executor, to a guardian of the beneficiaries; but the mere fact that the person appointed by the court was called a guardian, rather than a trustee, could not defeat the trust, for if control of the fund was taken with knowledge of the trust, the guardian and his sureties were chargeable with its execution.</p> <p>Same. — ■ Eecedent’s Estate.— Settlement of Trust by Administrator.— It is the duty of executors and administrators who come into possession of trust property, to settle the accounts of the decedent in relation to the trust. They must -preserve the fund, but they are not bound to execute the trust, and may, with the approval of the court, pay the money to a duly appointed successor.</p> <p>Same.— Conclusiveness of Settlement.— Inability of Heirs.— Guardianship.— A settlement made by the administrator of a trustee with the guardian of the cestuis que trust, whereby the guardian’s individual note was surrendered to him in satisfaction of the amount due his wards, which settlement was reported to and approved by the court having jurisdiction, is, while it stands unimpeached, a bar to a suit against the heirs of the trustee, under section 2442, R. S. 1881, by a subsequent guardian and trustee who, as surety in the bond of his predecessor, had suffered loss by the latter’s default.</p>

<p>Criminal Law.— Murder. — Indictment.—Duplicity. — An indictment for murder which charges an assault as part of the crime, is not bad for duplicity, but charges only a single offence.</p> <p>Same. — Continuance.—Absent Witness. — Testimony as to Insanity. — An affidavit for a continuance which does not state that the non-expert witnesses, on account of whose absence the continuance is asked, will testify to specific facts indicating the insanity of the defendant at the time of the homicide, but merely that they will testify that he was of unsound mind, is not sufficient.</p> <p>Same.— Testimony of Absent Witnesses as to Threats. — Nor is an affidavit for a continuance sufficient which merely states that an absent witness will testify that threats were made; the language used must be stated.</p> <p>Same. — Argument to Jury. — Erroneous Inferences. — Errors of logic or inference in addressing the jury are not available for the reversal of a judgment; and so, where the defendant, in a prosecution for murder, introduces evidence showing that at the time*of the homicide he was confined in the penitentiary for twenty-one years, it is not a material error for the prosecuting attorney to tell the jury, in his argument, to consider that fact, and that he has eighteen years yet to serve under the former sentence, and that if sent back to the penitentiary he might kill another man.</p> <p>Same. — Insanity as a Defence. — Instruction.—It is not error to refuse to instruct the jury that partial insanity is a defence in a prosecution for crime. If a defendant is insane within the meaning of the law, he must go acquit, but the weakness or strength of his mental capacity does not affect the question of punishment.*</p>

<p>Fbaudulent Conveyance. — Husband and Wife. — Preference of Creditor.— Where a husband, who is indebted to his wife for money borrowed from her, for the purpose of paying the debt purchases real estate and causes it to be conveyed to her, and makes, with his own funds, valuable improvements thereon, the transaction is not fraudulent as to other creditors of the husband, but is a mere preference of the wife over them, and the property can not be subjected to the payment of their claims.</p>

<p>New Tjbiai. — As of Right. — Limitation of Time. — Statute Construed. — Under section 1064, R. S. 1881, it is not necessary that an application for a new trial as of right shall be passed upon by the court within one year, but the limitation therein as to time applies only to the filing of the application and the undertaking for costs and damages.</p>

<p>Beal Estate.— Wrongful Removal of House From. — Adoption of Wrong.— Conversion. — Damages.—Where A., with knowledge of the facts, permits B. to place upon his ground a house which B. has wrongfully removed from the premises of another, and refuses to permit the owner to restore' it to its original location, claiming ground rent from B., there is such an adoption by A. of B.’s wrong, and such an appropriation of the property, as to make him liable for the damages.</p> <p>Same. — New Trial as of Right. — In such a case, a party can not demand a a new trial as of right under section 1064, B. S. 1881.</p> <p>Judgment. — Default.—Setting Aside. — Sickness of Defendant. — Where a defendant, who has been duly served with a summons, is unable to attend court on the day of trial on account of sickness, yet refuses to employ an attorney to appear for him, he is not entitled to have a judgment by default set aside.</p>

<p>Taxes.' — Sleeping-Car Companies. — ■Earnings.—Interstate Commerce. — Section 6855, B. S. 1881, Unconstitutional. — A State has no power to levy a tax upon the earnings of a sleeping-car company engaged in the business of transporting passengers from one State to another, in the proportion that the distance travelled through the State bears to the entire distance for which fares are received, or otherwise, the matter of interstate commerce being exclusively of Federal jurisdiction. Section 6355, R. S. 1881, is therefore invalid.</p>

<p>Mortgage. — Foreclosure. — Parties. — Married Woman.— Right to Defend Against Void Mortgage for Protection of Herself and Grantee. — Covenants of Warranty. — Indemnifying Mortgage. — Mrs. J., as surety for her husband, united with him in executing a school fund mortgage upon land owned by them as tenants by entireties. They afterwards conveyed the land by warranty deed, and executed to the.purchaser an indemnifying mortgage upon other real estate held by them as tenants by entireties, in .which they expressly stipulated to save their grantee harmless from loss or damage under the school fund mortgage. Suit to foreclose the latter mortgage. Mrs. J. was notified by the grantee to defend.</p> <p>Held, that Mrs. J., for the protection of herself and her grantee, is entitled to be admitted as a party defendant, and that an answer by her setting up the foregoing facts is sufficient, it showing that the mortgage sought to be foreclosed is void.</p>

<p>Landlord and Tenant.— When Such Relation is Implied.— Complaint to Recover Rent. — Sufficiency of. —Where a complaint charges that the defendant is indebted to the plaintiff in a certain sum for the rent of described real estate, the law implies the existence of the contract relation of landlord and tenant, and the complaint is not bad because it fails to aver that fact.</p> <p>Pleading.— Uncertainty. — Remedy for. — The remedy for uncertainty in a pleading is a motion to make more specific, and not a demurrer.</p>

<p>Will. — Legacy.—Payment of. — As the personal estate is made by law the primary fund out of which legacies are to be paid, it will be held, in the absence of countervailing facts, that the testator intended that the personal estate only should be’used to pay them.</p> <p>Same. — Intention of Testator. — Parol Evidence. — In determining whether it was the intention of the testator to charge legacies upon land, parol evidence is competent to prove the situation and condition of the testator and his property at the time the will was made.</p> <p>Same. — Charging Legacy Upon Land. — Complaint.—A complaint to charge legacies upon land must show either that the testator had not sufficient personal property at the time the will was executed to pay them, or that he so disposed of such property by the will that it could not be made available for that purpose.</p> <p>Same. — Disposition of Personal Property. — Life-Estate.—Where the will gives the widow a life-estate in the land and in the personal property thereon, it does not show a disposition of all the personal property, and, to charge the land with the payment of legacies, the want of sufficient personal property to pay them, at the time the will was executed, must he shown.</p>

<p>Gravel Road. — Construction of.— Void Additional Assessment. — Notice.-—-Injunct-ion. — An additional gravel road assessment made by the county auditor at the direction of the county commissioners, after the original assessment has been placed upon the duplicate, without notice to the land-owner or reference to viewers, is void, and its enforcement by a sale of land may be enjoined.</p>

<p>Deed. — Delivery After Grantor’s Death. — Doctrine of Delation. — Testamentary Disposition. — A short time before his death, a father delivered to one of his sons a package of deeds to his children, which he had signed and acknowledged a year previously, and stated that the deeds belonged to the children, and directed his son to deliver them after his death. With the grantor’s' consent, the son deposited the package in a bank for safe keeping. When the grantor died, the deeds were delivered and recorded. Suit by one of the grantees to quiet his title against the claim of the judgment creditors of ariother of the grantor’s sons that the deeds are ineffectual. The plaintiff’s deed conveyed to him, “after my decease, and not before,” certain land for the expressed consideration of one dollar. Between the date of the deed and the date of its delivery to the plaintiff, the rights of no stranger, claiming under the grantor, intervened.</p> <p>Held, that the delivery of the deed to plaintiff related back to the date of the delivery of all the deeds to his brother, and took effect as of that date.</p> <p>Held, also, that the phrase “ after my decease, and not before,” did not make the deed testamentary in character, but operated merely to show that the grantee’s use and enjoyment of the land would not begin under the deed until after the grantor’s death.</p>

<p>•Special Judge. — Appointment.—Presumption of Regularity. — Supreme Court-. —Where the record is silent upon the subject, it will be presumed, on appeal, that the special judge who tried the cause was regularly appointed, and objection to his authority to preside can not be made for the first time in the Supreme Court.</p> <p>Practice. — Special Finding.— Venire de Novo. — A motion for a venirede novo will not be sustained unless the verdict or finding is so defective and uncertain upon its face that no judgment can be rendered upon it.</p> <p>Same. — Motion for Nevo Trial. — If all the facts are not found, or if facts are stated in the special finding which the proof does not warrant, the only remedy is by a motion for a new trial.</p>

<p>Intoxicating Liquor.— Unlawful Sale. — Indictment.—Omission of Formal Statutory Words. — The omission of merely formal words, where enough is alleged to indicate the offence and the person charged, affords no cause for quashing an indictment.</p> <p>Same. — Druggist.—Sale on Sunday Without. Prescription. — Statute of Dimitalions. — -The prosecution of a druggist, under section 2099, R. S. 1881, for selling intoxicating liquor on Sunday, without a prescription from a physician, may be commenced within two years. The six months’ limitation provided by section 1594, with respect to desecrations of the Sabbath, is not applicable.</p> <p>Same. — Trial Under Dad Indictment no Bar to Another Prosecution. — A trial and acquittal under an indictment which does not charge a public offence, is not a bar to a prosecution for the same act under a sufficient indictment.</p> <p>Same. — Sufficiency of Indictment Under Section 8099, B. S. 1881. — An indictment against a druggist, under section 2099, R. S. 1881, for selling intoxicating liquor without a prescription, is bad if it fails to charge that the sale was made on some one of the prohibited days mentioned in such statute.</p>

<p>Railroad. — Right of Way. — Purchaser With Notice of. — Inquiry.—Where the purchaser of land has knowledge that a grade for a railroad is constructed thereon, he is put upon inquiry as to the rights of the railroad company, and takes the land subject to all claims and equities of which inquiry would have given him information.</p> <p>Same. — Ejectment.—Acquiescence—In such case, where the land-owner acquiesces for sixteen years after the railroad has been constructed upon the grade, he can not thereafter maintain ejectment.</p>

<p>City. — Street Improvement. — Common Council. — Rejection of Bids. — Right to Reconsider. — The common council of a city, which has rejected all bids, received in pursuance of due notice of the letting of a contract for a street improvement, may, at a subsequent meeting, without a re-advertisement for bids, reconsider the vote of rejection and award the contract to one of the original bidders.</p> <p>Same. — Assessment.—Appeal from Precept. — Where the common council has,, by the publication of notice, which it adjudges sufficient, acquired jurisdiction to let a contract, section 3165, R. S. 1881, upon an appeal from a precept to enforce an assessment, precludes any inquiry into such incidental facts as the rejection of bids and the subsequent reconsideration of the vote of rejection.</p> <p>Same. — Acquiescence of Property-Owner. — Estoppel-—Unless the proceedings under wliich a street improvement is being made are totally void, a property-owner who stands by without objection, and receives the benefit of the work being done by the contractor, is estopped to thereafter question the legality of the proceedings.</p> <p>Same. — Sufficiency of Ordinance for Improvement. — An ordinance providing ' that a street shall be “ improved by gravelling in street, brick sidewalks and paved gutters,” according to specifications to be prepared by the city civil engineer, and providing for the advertisement for bids and the assessment of abutting property, is not void for uncertainty, but is sufficient to authorize the letting of a contract for the work.</p>

<p>Voluntary Assignment. — Assignee May Pursue Note Fraudulently Transferred. — The assignee of a debtor may pursue and make assets of a promissory note transferred by the assignor without consideration, and for the purpose of placing it beyond the reach of the assignee.</p> <p>Same. — Pleading.—Deed of Assignment. — The deed of assignment is not the foundation of the complaint and need not be made a part of it. Promissory Note. — Partial Ownership. — Debtor and Creditor. — Where, at the time a promissory note is executed, it is agreed by the- payee that a third person shall have an interest therein to the extent of money previously loaned the payee, such person becomes the owner of the note to that extent, and may assert his interest against creditors of the payee.</p>

<p>Township. — School Supplies. — Contract for.— Liability. — A township is not liable upon a certificate issued by its trustee for school supplies contracted for by him for future delivery, which supplies, although suitable, are not needed in the township schools, and which the township refuses to accept.</p> <p>Same. — Delivery and Acceptance. — The delivery of the goods to a railroad company by the vendor is not such a delivery as is required to make the school township liable upon a contract which its trustee had no authority to make. In such a case, liability is based upon the actual acceptance and appropriation of the goods.</p>

<p>Common Schools. — School-Houses.—- Location. — -Discretion of Trustee. — The question as to where township school-houses shall he located, and when land shall be acquired for that purpose, is left by the statute to the sound discretion of the trustee. Section 4517, R. S. 1881.</p> <p>Same. — Appeal to Gouniy Superintendent.— Upon an application by the trustee to the circuit court to acquire land for school-house purposes, questions respecting the location selected are not triable. The method of trying such questions is by appeal to the county superintendent, as provided in section 4537, R. S. 1881.</p>

<p>CbiminAL Law. — Embezzlement.—Administrator.—Demand.—The refusal of a defaulting administrator to pay to the sureties on his bond, upon a demand made by them, money which they have been compelled to pay in settlement of his defalcation, does not render him guilty of embezzlement under section 1952, R. S. 1881.</p> <p>Same. — By Whom Demand Must be Made. — To constitute embezzlement under such statute, the demand for an accounting, if made by an individual, must bo made by or for one to whom money is due from the administrator as such, the statute having reference wholly to the administrator in his relation to those interested in the estate, and for whom he is acting in the capacity of trustee.</p> <p>Same. — Flight and Concealment. — The fact that the defaulting administrator absents and conceals himself, so that his successor in the trust can. not make a demand upon him, does not enable his sureties to make the demand which will render him guilty of embezzlement.</p>

<p>Real Estate. — Action to Recover.' — New Trial as of Right. — Failure to Enter Order Granting Upon Order-Book. — Estoppel.—Where the defendant in an action to recover real estate, against whom judgment has been rendered, applies for a new trial as of right under section 1064, R. S. 1881, duly complies with all the requirements of such statute, and at a subsequent term, it being assumed that a new trial has been granted, the parties appear, and the cause is again tried, resulting in a judgment for the defendant, such judgment is a bar to a subsequent action, based upon the first judgment, to recover the possession of the real estate, although there is no entry upon the order-book of the court showing the granting of the new trial and the vacation of the original judgment.</p>

<p>Building Associations. — Dissolution.— Unredeemed Stock. — Where it is provided in the articles of association of á building association that it shall continue in operation eight years, unless it shall sooner have sufficient funds to pay its debts and redeem its stock, a resolution.dissolving the association before the time limited, without the consent of the shareholders, and”with unredeemed stock outstanding, is without effect.</p> <p>Same. — Ansels. —Mortgages.— When not Enforceable. — Receiver. —Where, by the agreement of all the shareholders, the money advanced to members is to be theirs absolutely, if they pay all dues and interest and agree to take the amounts so advanced in full for their stock, the conditions being fulfilled, mortgages executed by them are not enforceable, and do not constitute assets of the association; and where there are no assets for distribution, a receiver will not be appointed.</p>

<p>Fbauduient Conveyance. — Complaint to Set Aside. — Partnership and Individual Creditors. — -A complaint by partnership creditors to set aside, as fraudulent, a conveyance of individual property, need not allege that the grantor had no individual creditors at the time the conveyance was made and the suit commenced, such fact being a matter of defence.</p> <p>Same.— When Conveyance Not Fraudulent. — Where one receives a conveyance of property from a fraudulent grantor, without guilty knowledge or actual fraud, and upon such terms as do not divert it from the payment of the grantor’s debts or inflict substantial injury upon his creditors, such conveyance will not be set aside as even constructively fraudulent.</p> <p>Same. — Agreement of Grantee to Pay Debts of Grantor. — Where, considering the exemption to which the debtor is entitled," there is only a nominal margin between the purchase-price and the highest estimated value of the land conveyed, and the good-faith grautee has assumed to pay individual creditors of the grantor an amount approximating the value of the property, and by their acceptance has become personally bound to them, the conveyance is neither fraudulent nor legally injurious to the partnership creditors of the grantor, and will not be set aside.</p>

<p>Contract. — ■ Promise for Benefit of Third Person. — A promise, upon a sufficient consideration, made by one person to another for the benefit of a third person, may be enforced by the latter; and the fact that, at the time the promise is made, the third person has no knowledge of it, makes no difference.</p> <p>Same. — Division of Properly by Ancestor. — Conveyance.—Promise by Grantees to Pay Money to Third Persons. — Acceptance.—Presumption.—Where an ancestor, desiring to divide his property, conveyed it to certain of his descendants, the grantees promising, in consideration of obtaining more than their share of the estate, to pay certain sums to other descendants of the grantor, the provision thus made for the latter is neither a gift inter vivos nor a donation mortis causa, but a settlement of a portion of the estate upon them, somewhat in tire nature of a bequest, and in such a beneficial way as to require no express acceptance on their part, but, being infants, an acceptance will be presumed-</p> <p>Same. — Change of Contract. — Promissory Notes. — When the transaction was finally closed, with the making of the promises upon a sufficient consideration and the conveyance of the land, neither the grantor nor the grantees could change it to the detriment of the infant promisees, and the subsequent taking of notes for the agreed sums by the grantor, payable to himself, could not overthrow their rights under the original contract.</p> <p>Bile oe Exceptions. — Attorney in Cause. — Election as Judge. — One of th$ attorneys for appellants, who assisted in the trial of the cause, was elected as the successor of the judge who presided at the trial, and, after becoming judge of the court, he signed the bill of exceptions.</p> <p>Meld, that the hill of exceptions can not be regarded as a part of the record, and no question involving an examination of the evidence will he considered.</p>

<p>Negligence. — Pointing Pistol at Another. — Accidental Injury. — Liability.— One who purposely points a pistol at another, is liable for any resulting injury; but where the injury resulting from the discharge of a weapon, not purposely pointed, is purely accidental, there is no liability. .</p>

<p>Streets and Ameys. — Improvement.—Assessments.-—Repeal of Statute. — The body of section 3163, R. S. 1881, relating to assessments for street improvements, was repealed by implication by the act of April 13th, 1885 (Acts of 1885, p. 207), saving only contracts entered into before the passage of the act.’ Whether the provisos to section 3163 were also repealed, is a question not considered.</p> <p>Same.' — Enforcement of Assessments. — Section 3165, R. S. 1881, Modified but not Repealed. — Section 3165, R. S. 1881, relating to the enforcement of street improvement assessments, was not repealed by the act of 1885, but only modified so far as to require that assessments against unplatted lands shall be enforced by proceedings in the circuit court, instead of by the issuance of a precept to the city treasurer. For the enforcement of assessments against platted lands within the limits of a city, a precept may be issued under section 3165, as heretofore.</p>

<p>Promissory Hote. — Consideration. — Settlement of Disputed Question. — Acquiescence. — Estoppel.—Administrator.—The payee of a promissory note due in 1865 demanded that the renewal note should be payable in gold coin. The maker refused to execute a note so payable, and, in settlement of the dispute, a new note was executed for “ two and a half times the debt.” Various renewals of the latter note were made until 1879, when the maker refused to execute a renewal note, as he had previously done, including accrued interest, but the matter was finally settled by the maker executing nine notes. In 1883- the payee died, and the maker was appointed administrator of his estate and charged himself in his account current with the nine notes executed in 1879. In 1885 he filed a supplemental report, claiming a deduction from the amount of the nine notes, and asked that he be charged with the principal and interest of the original debt evidenced by the note maturing in 1865.</p> <p>Held, that the maker is liable for the full amount of the nine notes, he not being in a position to question their consideration after such long acquiescence in the previous settlements.</p>

<p>Injunction. — Threatened Sale of Land. — Execution Against Third Person. — A. land-owner may enjoin a threatened sale of his property upon an execution issued against the property of a third person.</p> <p>Deed. — Delivery.—Presumption.—Where a deed is found in the possession of the grantee, the presumption is, in the absence of a showing to the contrary, that it was delivered to the grantee on the day of its date.</p>

<p>Deed. — •Delivery After Death. — Marriage of Grantor. — Rights of Widow.— Notice. — The owner of land executed deeds to portions thereof to his children by his first marriage, and placed them in the hands of one of the grantees, with instructions to deliver them after his death. The grantor subsequently married again, his wife being informed before the marriage that the only estate owned by him was land not embraced in the deeds mentioned. Afterwards the grantor died, leaving no children by his last wife, and the deeds were delivered to the respective grantees, they paying no consideration.</p> <p>Meld, that the widow takes no interest in the lands conveyed.</p>

<p>Township Trustee. — Conversion of Public Funds. — Discharge in Bankruptcy. —A debt due to a township for money wrongfully appropriated by the township trustee, is not barred by a discharge of the latter in bankruptcy, and a dividend received from his estate is to be treated as a payment.</p> <p>Same. — Promissory Note. — Fiduciary Character of Debt. — The fact that the successor of a defaulting trustee takes the latter’s note for the amount due from him, does not change the character of the debt, so as to relieve it of its fiduciary character and bring it within the effect of a discharge in bankruptcy.</p> <p>Same. — Trustee Has no Authority to Take Note of Predecessor. — A township trustee has no authority to accept the note of his predecessor in payment of the sum due from him to the township, but the outgoing trustee is required to pay his obligation in money.</p> <p>Same. — Character of Debt. — Courts Will Look Behind, Note. — Courts will look behind a note, a mortgage, or even a judgment, to-ascertain the nature of the debt, and if it is one which a discharge does not bar, it will be so adjudged.</p>

<p>Highway. — Petition.—Notice.—Practice.—Bill of Exceptions. — The overruling by the circuit court, on appeal, of a motion to dismiss the petition for a highway, which motion is based on the ground that the petition is not according to law, and that no notice of its presentation to the board of commissioners was given, is not available in the Supreme Court if no objections to the petition are pointed out, or if the motion is not, so far as it relates to the notice, made a part of the record by a bill of exceptions, or if it appears that the question of notice was not raised at the first opportunity before the board.</p> <p>Same. — Appeal to Circuit Court. — Questions for Trial.— Verdict. — On appeal to the circuit court from the county commissioners, in highway cases, only such questions are for trial as were in issue before the commissioners, or as may, by leave of court, be put in issue by amended pleadings, and if the verdict covers these matters it is sufficient.</p> <p>Same.— Public Utility.— Width.— Remonstrance. — The fact that the jury, upon a trial in the circuit court, fix the width of the highway at ten feet less than the width ordered by the county commissioners, does not entitle a remonstrant to the costs in the circuit court, when his objection to the utility of the proposed road is a general one.</p> <p>Same. — Presumptions in Favor of Judgment.■ — In the absence of an affirmative showing of error, all reasonable presumptions will be indulged in favor of the rulings of the trial court.</p> <p>Same. — Harmless Error. — Where a right result is reached, a mistake in the mode of reaching it is not available error.</p>

<p>Taxes. — Seal Estate. — Error in Naming Owner Upon Duplicate. — Lien.—An inaccuracy in naming the owner of land upon the tax duplicate, does not invalidate the tax lien.</p> <p>■Same. — Tenants in Common. — Contribution.— One to whom land has descended jointly with other heirs, may pay the taxes upon the entire tract and enforce contribution from the other tenants in common.</p>

<p>Pbomissoby Note. — Forgery.— Ratification. — ■ Estoppel.— Consideration. — In the absence of an estoppel in pais, or without a new consideration for the promise, an instrument to which the name of a person has been forged can not be ratified by him so as to make him liable thereon.</p> <p>Same. — Signing by One Assuming to Act as Agent. — If the name of a party is signed by one who assumes to act as his agent, or under pretence or color of authority, ratification, understanding^, either by an express promise to pay or by accepting a chattel mortgage as indemnity, is equivalent to previous authority.</p> <p>Same. — Ratification to Conceal Grime. — Public Policy. — The ratification which the law interdicts relates only to such acts as clearly appear to have been done in violation of a criminal statute, the motive of the ratifying party being presumably the concealment of the crime or the suppression of its prosecution.</p> <p>Same.— When Unauthorized Signatme May he Ratified.- — -Where the act ratified is of an ambiguous character, and may as well be attributed to a mistaken assumption of authority as to a criminal purpose, public policy does not forbid the adoption of the act, and it can not be said to be without consideration, especially where indemnity is accepted.</p>

<p>Parties. — Joint Contract. — Surviving Obligees May Sue. — Surviving obligees may bring an action on a joint contract without joining the heirs or representatives of a deceased obligee, the common law rule vesting the whole right in the survivors not being changed by the code of civil procedure, and hence such persons are the real parties in interest.</p> <p>Contract. — Breach.—Damages.—A party who fails to perform .an act which he has agreed to perform is liable for all injuries that naturally and proximately flow from the breach, the result to be reached by taking into consideration the contract and attendant circumstances.</p> <p>Same. — Agreement to Construct liiver Embankment. — Freshets and Floods.— Where a person agrees to construct and maintain a river embankment, and the circumstances show that the parties intended that the embankment should be so maintained as to prevent overflows, and so that it might be used as a roadway, the promising party is answerable for the consequences resulting from freshets and floods.</p> <p>Same.— Unforeseen Obstacles. — A party who agrees to construct and main- ■ tain a culvert at a designated place must make it reasonably effective for the purpose it is intended to accomplish, although accident or natural causes may make the work more difficult and expensive than it was supposed it would be.</p> <p>Principal and Agent. — Evidence of Agency. — Declarations of Agent. — The relation of principal and agent may be established by circumstantial evidence, and proof that one openly acted as the agent of another, under such circumstances as implied knowledge on the part of the latter, makes a prima facie case, and authorizes the admission in evidence of his declarations.</p>

<p>Execution. — Sale of Mortgaged Chattels Under. — Constable.—Breach of Duty. —Liability on Bond. — -Where a constable levies upon and sells mortgaged chattels under execution, and delivers possession to the purchaser without requiring him to comply with the conditions of the mortgage, as required by section 722, E. S. 1881, the officer is guilty of a breach of duty, making him liable on his bond, and the title held by others is not divested, but the party in interest may reclaim possession or demand an accounting from the purchaser.</p> <p>Same. — Action Upon Officers Bond: — Measure of Damages. — Where, in such case, the mortgagee brings an action upon the bond of the officer, the amount of the mortgage debt is not the measure of his damages unless the property is worth that much; but if the value of the property is less than the debt, its value is the measure of damages. Where neither the value of the property nor its conversion by the purchaser or officer is shown, no case is made for more than nominal damages.</p>

<p>Quieting Title. — Oomplaint.—Averments of Title. — Where a complaint to' quiet title avers that the plaintiff owns the land in fee, without specifically setting forth his title, the legal implication is that he owns the whole estate absolutely.</p> <p>Married Woman. — •Mortgage.—Promissory Note. — Representations.—Estoppel. — Representations by a married woman that she is the purchaser of personal property for which she executes anote and mortgage upon her separate real estate, which representations are relied upon by the mortgagee in good faith, estop her from denying the truth of such statements.</p> <p>Same. — Duress.— Good Faith Endorsee. — Where a husband, acting in collusion with another, obtains by duress the signature of his wife to a negotiable note and a mortgage to the latter, and in like manner secures an affidavit from her falsely representing that she is the purchaser of the property for which the note and mortgage are given, she may plead the truth as against the mortgagee, but as against an endorsee of the note without notice, for value and before maturity, she is estopped.</p> <p>Triae. — Suit to Cancel Note and Mortgage. — Not Triable by Jury. — A suit to cancel a note and mortgage is purely of equitable cognizance, and it is not error to refuse a trial by jury.</p>

<p>Moetgage.— Foreclosure.— Subsequent Liens.— When Barred. — All persons who are made parties to a suit to foreclose a mortgage, and whose rights accrued subsequent to the mortgage, must bring them forward or they will be barred by the decree, as the mortgagee has a right to presume, until he has notice to the contrary, that the condition of affairs respecting the property is the same as when his mortgage was executed.</p> <p>Same. — Default.— What Admitted by. — Pleading.—In respect to such persons, tho prayer for a foreclosure of the mortgage is a sufficient invitation to set up whatever interest they have which would stand in the way of a foreclosure or give them a right of redemption, and a default is a confession that the parties who fail to appear have no such interest, without regard to the issues tendered by the complaint.</p> <p>Same. — Husband and Wife. — Tax Lien.— When Barred by Judgment. — A wife joined her husband in the execution of a mortgage upon his real estate. W. subsequently purchased the property at a tax sale and received a certificate, which he assigned to the wife, but no record of the assignment was made. Afterwards the mortgage was foreclosed, the mortgagor and his wife and W., all of whom were parties, making default. There was no mention of the tax lien in the complaint for foreclosure. The mortgagee acquired title under the decree. Afterwards the wife of the mortgagor assigned the tax certificate to the plaintiff, who received a tax deed, and now seeks to enforce a lien.</p> <p>Held, that the action can not be maintained, the decree foreclosing the mortgage being conclusive.</p>

<p>Damages.— When Deemed Liquidated. — Bond.—Penalty.—Where the purchaser of land adjoining a town agrees, as part of the consideration, to extend through it certain streets of the town, and executes a bond providing'that if the streets are not extended the obligors shall be bound in the “penal sum of two hundred and fifty dollars, the same to be recovered as liquidated damages,” the sum named is not a mere penalty, but is recoverable as liquidated damages.</p> <p>Same. — General Buk. — Where the sum named is declared to be fixed as liquidated damages, is not greatly disproportionate to the loss that may result from a breach, and the damages are not measurable by any exact pecuniary standard, the sum designated will be deemed to be stipulated damages.</p> <p>Same. — Form, of Instrument not Controlling. — The form of the instrument is not controlling, as the courts will look to the subject of the contract and to the consequences that will probably flow from a breach of its conditions.</p>

<p>Contract. — To Devise Property. — Description.—A contract in general terms to devise “ one-half of my estate ” applies to such property of all kinds as the contractor may have left subject to disposition by will or devise at his death, and is not void for the want of a more particular description.</p> <p>Same. — Action for Breach. — Damages.— Specific Performance.— Complaint.— An action for damages for the breach of the contract may be maintained, and it is not necessary to set out in the complaint a particular description of the property owned by the decedent at the date of his death. Aliicr, where the action is for specific performance or to obtain a decree affecting the land.</p> <p>Same. — Statute of Frauds. — Contract by Correspondence. — Where a contract to devise land may be extracted from letters written during the course of a correspondence through which the negotiations were carried on, it is taken out of the operation of the statute of frauds, as it may he, also, by a performance of the conditions imposed by the owner of the land.</p> <p>Same.— Lost Letters.— Secondary Evidence of Contents. — Where it is shown that the letters constituting the contract are lost, and that a diligent search for them has been fruitless, secondary evidence of their contents is admissible.</p> <p>Same. — Agent.—Parol Authority to Sign Memorandum Required by Statute.— In the absence of a statutory provision to the contrary, the authority of an agent to sign the note or memorandum required by the statute im the sale or leasing of lands may be proved by parol.</p>

<p>Pbomissoby Note. — Conditional Agreement to Return. — Consideration.—Defence. — At the time a promissory note was executed to a college for a scholarship therein, a certificate of scholarship was issued to the maker, to which was appended an agreement that the note was to be returned if ten thousand dollars’ worth of scholarships were not sold within a given time. Action upon the note.</p> <p>Meld, that the note and the agreement constitute one contract, but that the defendant can not avoid the note by merely showing a failure to sell ten thousand dollars’ worth of certificates, but he must also show that he has not used the certificate and has returned or tendered it to the college.</p>

<p>Warranty. — Sale of Goods. — Measure of Damages. — The measure of damages for a breach of warranty as to the quality of goods sold, is the difference between the actual value of the goods at the time of sale and what would have been their value had they been as warranted.</p> <p>Same. — Loss of Trade. — Interrogatories to Jury. — Judgment Notwithstanding General Verdict. — For interrogatories to the. jury and answers thereto which are held not sufficient to authorize a judgment for the plaintiff, notwithstanding the general verdict, in an action for goods sold, where the defendant pleaded a breach of warranty and asked damages for loss of trade, etc., see opinion.</p> <p>Special Verdict.— What Facts Jury May Find.— The particular facts which a jury may be required to find specially, under section 540, R. S. 1881, are facts which underlie the rights of the parties, and which may" be established by the evidence.</p>

<p>■Taxes.— Married Woman. —■ Promissory Notes. — Listing by Person not the ■ Owner. — Levy.—Tender.—Where promissory notes owned by a married woman, and subject to taxation, are listed by her husband, she can only relieve such notes from -a levy by making a strict tender of the taxes legally chargeable thereon.</p> <p>Same. — Replevin.—Replevin will not lie for property taken for a tax.</p>

<p>Negligence. — Injury at Railroad Crossing. — Contributory Hegligenoe of Traveller. — A traveller upon a highway who is injured at a railroad crossing can not recover if, by the proper exercise of the sense of sight or of hearing, he could have avoided the injury.</p>

<p>Municipal Corporation. — Natuial Qus Companies.— Use of Streets. — Jinelusive Privileges. — A. municipal corporation has no power to grant a natural gas company the exclusive privilege of using its streets, and a company obtaining such a grant is bound to take notice that it is void.</p> <p>Same. — Injunction.—A town can not enjoin a natural gas company from using its streets upon the ground that it has conferred the exclusive right to their use upon another gas company, but it may do so on the ground that the defendant has not obtained a license so to do.</p> <p>Same. — Act of 1887 Relating to Ruiural Gas. — Requirements of. — The act of 1887 relating to natural gas (Acts of 1887, p. 36) requires that a general ordinance shall be adopted by municipal corporations, giving, upon equal terms, substantially the same privileges to all companies.</p> <p>Same. — Neither a void grant of an exclusive privilege to use the town streets to one company, nor refusal to grant a special privilege to another company, authorizes the latter company to use the streets.</p> <p>Same. — Town Trustees do not Constitute the Corporation. — The trustees of a town represent but do not constitute the corporation, and, although they have violated their duty, they may invoke the aid of the courts to protect its rights.</p>

<p>Supreme Court. — Assignment of Error. — Sufficiency of Pleadings. — Where an assignment of error questions the sufficiency of a pleading, consisting of two paragraphs, as an entirety, such assignment fails if either paragraph is good.</p> <p>Verdict.— Venire de Novo. — Where the verdict is not defective or uncertain, and does not find less than the whole matter put in issue, or fail to assess damages, a venire de novo will not be granted.</p> <p>Bill on Exceptions.- — Certificate of Judge. — Effect of. — Long-Hand Manuscript of Evidence. — When a bill of exceptions, incorporating the longhand manuscript of the evidence, as prepared by the official stenographer, is presented to the judge, who approves and signs it, he thereby adopts and certifies every material statement in the bill which precedes his signature. Lyon v. Davis, 111 Ind. 384, modified to the extent of. seeming conflict.</p> <p>New Trial. — Causes for. — Excessive Damages. — The fourth cause for a new trial under section 559, R. S. 1881, viz., “ excessive damages,” is proper only in cases of torts.</p> <p>Evidence. — Copies of Lost Instruments. — To authorize the admission in evidence of a copy of a written instrument, it is only necessary to prove the loss of the original by a fair preponderance of the evidence.</p>

<p>Trust and Trustee. — Bond.—Jurisdiction.—Conversion-—A widow bad a life-estate in one-third of a tract of land. In partition proceedings the land was sold by a commissioner, and, by agreement of the parties, L. was appointed trustee aijd received the widow’s share of the proceeds from the commissioner and executed a bond payable to the State, con-, ditioned that he should pay to her the income of the money, and upon iier death pay the principal to the fee-holders. The bond was approved by the circuit court, and, with the consent of the parties, was entered of record. L. converted the money. Action upon the bond by his successor in the trust.</p> <p>Held, that the trust was within the jurisdiction of the court, and that it had authority to approve the bond, which is a valid obligation.</p>

<p>Judgment. — By Gonfession. — Presumptions.—Jurisdiction.—A judgment by-confession to be valid must be entered in a court which has jurisdiction to render the same judgment in a contested cause; but such a judgment is supported by the same presumptions which sustain other judgments when collaterally questioned.</p> <p>Same.— When a party submits himself to the jurisdiction of a competent court and confesses judgment, and the court enters judgment for the amount admitted to be due, it will be presumed that all the preliminary steps necessary to confer jurisdiction were taken.</p> <p>Same. — Affidavit.—Validity of Judgment Between Parties. — A judgment entered by confession, without the filing of an affidavit as required by section 588, R. S. 1881, is valid as between the parties, and only void as to creditors.</p> <p>Same. — Assignment.—Power of Attorney. — Authority to assign a judgment may be conferred by a power of attorney.</p> <p>Same. — Becording Power of Attorney. — A power of attorney is valid as between the parties, and for all ordinary purposes, without being recorded. The recording of such instrument only becomes material when notice to third persons is necessary.</p> <p>Same. — When Not Kept Alive. — Where a person, under a legal or equitable obligation to do so, discharges an encumbrance, he can not have such encumbrance kept alive for his benefit to the injury of another ad versely interested.</p> <p>Same. — Estoppel.—Merger.—The purchaser of land is not estopped from buying a judgment against his grantor, existing at the time of the con- ■ veyance, and enforcing it against land afterwards acquired by the latter, there being no merger of the lien in such case.</p> <p>Same.— Voidable Execution. — Sale Under. — Questions as to the right of a party to have execution upon a judgment, and as to what property should be first levied upon, can not be raised after a sale has been regularly made under the execution.</p>

<p>"Highway. — Opening of. — Injunction.— Void Proceedings. — Injunction will not lie to restrain the opening of a highway, unless the proceedings under which the road is about to be opened are so defective as to be void.</p> <p>Same. — Description of Proposed Highway. — The proceedings establishing a highway will be upheld as against a collateral attack, if the termini and intermediate course are so described therein, either by courses and distances, or by reference to known'monuments or permanent objects, that a surveyor can locate the highway therefrom.</p> <p>.Same. — Presumption that Line Given is the Center. — Bailroad Bight of Way.— The presumption that the line mentioned in giving the course of a proposed highway is to be the center thereof is overthrown if the description itself shows a contrary intent. So, if the line is described as running along the north line of a railroad, it will be assumed that the intention is that the whole width of the highway shall lie north of and adjoining the right of way, as the right of way of a railroad company can not be appropriated for highway purposes without its consent.</p> <p>Same. — Immaterial Variance. — The substitution in the viewer’s report of “ Bending’s Crossing” as the point of commencement, instead of “Ben-dig’s Crossing,” as set forth in the petition, is an immaterial variance.</p> <p>Same. — Bailroad Line as Monument. — The line of an established railroad may be referred to as a monument in the description of the course of a proposed highway.</p>

<p>Drainage. — Cost of Repairing Drain. — Assessment by Surveyor. — Injunction. —Railroad.—Right to Locate Ditch Upon Right of Way. — A railroad company which acquiesced in the location and construction of a public ditch upon its right of way, can not, in a suit by it to enjoin the collection of an assessment for the cost of repairing the ditch levied by the county surveyor under section 10 of the act of April 6th, 1885, raise the question as to whether the ditch could rightfully have been located upon its premises.</p> <p>Same. — Irregularities.— Not Available in a Collateral Attack. — Neither an irregularity in the assessment nor the failure of the surveyor to make out a certified copy of the assessment can he made available in a suit to enjoin its collection.</p> <p>Same. — Notice. — Void Proceedings. — The statute authorizing the county surveyor to levy assessments for the cost of repairing a public ditch requires that notice be given, and without notice his proceedings are void, and the collection of assessments may be enjoined.</p> <p>Same. — Enjoining Collection of Assessment. — Parties.—County.—County Dreaswe¡'. — The county is not a necessary party to a suit to enjoin the col-.lection of an assessment levied by the surveyor in such cases, but- the suit is properly maintainable against the county treasurer.</p>

<p>Town. — Street and Sidewalk Improvements. — Repeal of Statute. — The act of February 14th, 1859, relating to the compulsory improvement of sidewalks in incorporated towns (Acts of 1859, p. 184; R. S. 1881, section 3357, et seq.), was not repealed, either expressly or by implication, by the act of April 27th, 1869, relating to the improvements of streets and alleys in such towns upon petition of lot-owners. (Acts of 1869, Spec. Sess., p. 33; R. S. 1881, section 3364, et seq.)</p> <p>Same. — Term “Street” Includes “Sidewalk.” — The act of 1859 does not prescribe the only procedure for the improvement of sidewalks; on the contrary, although sidewalks are not specifically mentioned in the act of 1869, a street may be improved to its full width under the provisions of such act, as the term “street” includestsidewalks, unless-the language with which it is associated restricts its meaning.</p> <p>Same. — Contract for Improvement. — A written proposal by the town authorities of the work to be done, a written bid to do the proposed work and a written acceptance of the bid by the proper authorities, together constitute a sufficient and binding contract.</p> <p>Same. — Assessment.—Collection of. — Questions of Fact Arising Pmor to Contract. — A question as to whether or not there was a proper advertisement for bids is a question of fact which arose “ prior to the making of the contract” for the improvement of the street, and, under section 3366, R. S. 1881, is not triable in an action to enforce an assessment.</p> <p>Same.— Petition for Improvement.— Ordinance. — A petition of property-owners in an incorporated town for the improvement of “ Hope street, between Willow and Schofield streets,” authorizes an ordinance for the improvement oí “ that portion of Hope street, and sidewalks thereof, lying between Schofield and Willow streets.”</p>

<p>Corporation. — Stockholder.—Subscription for Stock. — Issue of Certificates. — To create the relation of stockholder it is not essential that a certificate should have been issued, provided a contract to take stock has been made, or provided the rights and emoluments of a stockholder have been enjoyed with the consent of the corporation; but there must in every case be some sort of subscription whereby the subscriber obtains the right, upon some condition, to demand stock and to exercise the rights of a stockholder.</p> <p>Same. — Contract.—Nudum Pactum. — Where one neither subscribes for nor receives or controls stock, and neither acts as a stockholder nor is recognized as such by the corporation, a bond executed bv him, reciting that he has retained as a loan a certain sum of his subscription to the stock . of the corporation, and that he agrees to pay interest thereon, failing in which the principal shall become due, is without consideration, and not enforceable.</p> <p>Same. — Recital in Separate Instrument Concerning Subscription for Stock. — In such case the recital in the bond that the obligor “ has retained of his subscription for two shares of capital stock * * the sum of two hundred dollars, being the amount of his subscription, as a loan,” is neither a subscription in itself nor conclusive evidence of a subscription.</p> <p>Same. — Effect of Subscription for Stock. — Whether one who subscribes for stock in a corporation becomes, by the mere fact of making the subscription, a stockholder therein, depends upon the terms of his contract and the charter of the corporation, and whether the subscription was made as preliminary to the organization, or after it was under way, for stock thereafter to be issued.</p>

<p>Animals. — Running at Large.— Impounding. — Statute.—Section 2639, B. S. 1881. authorizing the impounding of animals, has no reference to animals that have strayed from their owners, but applies to animals suffered to run at large, notwithstanding there is no order of the board of county commissioners allowing them to do so.</p> <p>Same. — Right to Detain Impounded Animals. — Estoppel.—One who seizes and impounds domestic animals is bound to strictly conform to the law, and he can detain them only for the causes specified in the statute. If he places his right to hold possession on a false ground, as by the assertion of an unfounded claim for damages, he can not afterwards change position to the injury of the owner.</p>

<p>Mandate. — Limitation of TJee of Writ. — The use of the writ of mandate is limited to the enforcement of obligations imposed by law.</p> <p>Same.— Corporation. — Duty Crowing Out of Contract. — Where the duties of a corporation, or of its trustees, grow out of matters of contract, writs of mandate will not lie against the corporation or its trustees, either in their corporate capacity or as individuals, to compel the performance of the contract, but the aggrieved party will be left to the ordinary remedies.</p> <p>Same. — Religious Society.— Use of Church Building by Other Denominations.— The trustees of a Methodist church corporation solicited subscriptions* to a building fund. To induce persons who were not members of the religious denomination represented by them to subscribe to such fund, it was stipulated in the subscription papers, with the consent of the corporation, that the house to be erected should be free to all orthodox denominations when not occupied by the Methodists. Belying upon this stipulation, members of other denominations subscribed and paid various sums of money. Some time after the completion of the building, the Methodist corporation refused to permit other denominations to use the house. Complaint by subscribers to the building fund, asking that a writ of mandate may issue to compel the trustees of the Methodist Church to designate a time when another denomination may occupy the building.</p> <p>Held, that the duty, the performance of which is sought to be compelled, is not one “ resulting from an office, trust or station,” and that, under section 1168, R. S. 1881, mandate will not lie.</p>

<p>City. — Street Improvements, — Letting of Contract. — Notice.—Where it appears that the common council of a city has given any sort of notice of the letting of a contract for the improvement of a street, its sufficiency can not be inquired into after the work has been done, under color of the proceedings, with the acquiescence of the parties benefited.</p> <p>Same. — Questions Arising Prior U) Contract. — Practice.—If, under section 3165, JR. S. 1881, which precludes any inquiry concerning facts arising prior to the making of the contract, any question relating to the sufficiency of the notice can he made — a proposition which is doubted — it can only be done by answer.</p> <p>Same. — Contractor’s Affidavit.— Void Precept — A precept issued without the filing of an affidavit by the contractor, embodying in a substantial manner all of the requirements of the statute providing for such affidavit (section 3165, JR. S. 1881), is void; and where the complaint for the enforcement oí an assessment shows an insufficient affidavit, it is bad on. demurrer.</p>

<p>Sale. — Personal Property.— Collusion to Defraud. — Bepresentatims of Solvency. ■ — One who, by collusion with another, obtains the property of a third person, by having a colorable sale., made to the co-conspirator, who' is falsely represented to be solvent, and whose note is taken by the seller, is liable for the purchase-price of the property, the seller having tendered back the worthless note.</p> <p>Same. — Statute of Frauds. — In such case there is more than an oral representation as to another’s solvency; there is an attempt by fraud to obtain property by foisting upon the owner a worthless note; and hence the case is not within the statute of frauds. Cook v. Churchman, 104 Ind. 141, distinguished.</p>

<p>Decedents’ Estates. — Notice of Appointment. — Time of Filing Claim.— Where the record does not show the date at which an administrator gave notice of his appointment, an argument based upon the assumption that a claim was not filed within the statutory period will not be considered.</p> <p>Same. — Settlement While Claim is Pending. — The final settlement of an estate while a properly filed claim against it is pending and undisposed of, is an illegality for which the settlement, upon a proper showing, will he set aside.</p> <p>Same. — Setting Aside Final Settlement. — A claimant who appears at the final settlement hearing, or who has been personally summoned to attend the same, is not entitled to have the estate reopened under the provisions of section 2403, B. S. 1883, but he must then present tlie facts regarding his claim, and, in case of an adverse ruling, his remedy is by appeal.</p> <p>Same . — Pleading.—Departure.—Where the petition of a claimant to set aside the final settlement shows that the claimant appeared by counsel at the hearing, an averment in his reply that he did not appear is a departure and will be disregarded.</p>

<p>Chattel Mortgage. - Identification of Debt.— Voluntary Assignment. — Where the condition of a chattel mortgage is that the mortgagor shall pay a promissory note for twelve hundred dollars due the mortgagee, and save him harmless from a guaranty for the same amount to B. & Co., a showing by the mortgagee that he paid certain notes to B. & Co. which he had signed' as surety for the mortgagor, and that he had also paid, as surety, a certain sum to other creditors of the mortgagor, is not, without further evidence, sufficient to connect the sums paid with the debt secured by the mortgage, and does not authorize a judgment against the assignee of the mortgagor giving the mortgagee a preference over other creditors for' the sums paid.</p> <p>Same. — Right to Retail Mortgaged Goods. — Application of Proceeds. — Presumption of Good Faith. — Where the mortgagor of chattels is authorized by the terms of tlie mortgage to retain possession of and sell the property at retail, in the ordinary course of trade, and no agreement is shown either that the proceeds of sales shall be applied upon the mortgage debt, or that the mortgagor may use such proceeds for his own benefit, it can not be judicially inferred that the mortgage was made with fraudulent ' intent; and in the absenceof a showing as to wliat application was made of the proceeds, it will be presumed that the mortgagor remained in possession under an agreement to account as the agent of the mortgagee, and the proceeds of sales will be regarded as applied to the liquidation of the mortgage debt.</p>

<p>Sheriff’s Sai.e, — Appraisement.— Void Sale. — Action by Purchaser on Sheriff’s Bond to Recover Loss. — Former Adjudication. — A purchaser of real estate at sheriff’s sale was defeated in an action to recover its possession, the sale being void by reason of a violation by the sheriff of the law respecting appraisement. The purchaser then had judgment against the sheriff for the return of undistributed money arising from his purchase, and also an order, setting aside the satisfaction of the judgment under which the sale was made; but instead of proceeding to sale thereunder, he brought this action on the sheriff’s bond to recover the amount lost under his purchase by reason of the sheriff’s neglect of duty.</p> <p>Held, that the prior judgment for the return of the undistributed purchase-money and for the revivor of the original judgment is not a bar to the pending action.</p> <p>NEwTarAli — Actions Upon Contract. — Excessive Damages. — An action on a sheriff’s bond is 11 upon contract,” and the cause for a new trial, “ Excessive damages,” which is applicable only in cases of torts, will not call in question the assessment of the amount of recovery.</p>

<p>Husband and Wipe.— Mortgage.— Wife’s Inchoate Interest.— Sale of Husband’s Land on Execution. — Action by Wife A gainst Husband, as His Surety, for Indemnity. — Where a wife joins her husband in a mortgage upon his land to secure his debt, which land is sold upon foreclosure, she can not maintain an action against him, after divorce, for damages, treating her inchoate interest as so much security funds taken to pay his debts.</p>

<p>Highway.— Vacation of Part. — Under sections 5015, 5017, K. S. 1881, a part oí a highway may be vacated.</p> <p>Same. — Irregularities.—Irregularities in highway proceedings, before the county commissioners, are not available on appeal, as the case is for trial de novo in the circuit court.</p> <p>Same. — Evidence.—Opinion as to Public Utility.- — Witnesses may not give an opinion as to the public utility of a highway which it is proposed to vacate or open.</p>

<p>Municipal Cobpobations.— Street Improvements.— Assessments.— Notice.— Constitutional Law. — “Due Process of Law.” — A law which authorizes an assessment against property, hut makes no provision for notice to the owner, and gives him no opportunity to he heard in respect to the correctness of the charge, lacks the essential element of “ due process of law,” and is unconstitutional.</p> <p>Same. — Kind of Notice and 'Hearing Required. — The notice and hearing which the Constitution demands need only he such as are adapted to the nature of the assessment proposed, and such as afford the property-owner an opportunity to show that, according to the method prescribed for making the assessment, the amount charged against him is not correct.</p> <p>Same.— “ Due Process of Law ” Applies to Street Improvement Proceedings.— Proceedings for street improvements, where the cost is to be apportioned among those benefited, although somewhat of a summary character, are within the rule which requires notice and a hearing in order that a charge may he imposed by “ due process of law.”</p> <p>Same. — City of Kvansville. — Assessments.— Validity of Ordinance. — Although neither the special charter of the city of Evansville, nor the ordinance adopted in pursuance thereof, makes provision for notice to the owners of property of the levying of assessments for street improvements, yet where the ordinance provides that the assessment shall be collected by the enforcement of the lien in the same manner that mortgages are foreclosed, and as such proceedings can only be taken in pursuance of notice, the property-owner is afforded an opportunity to question the validity of the assessment, and the ordinance is valid.</p> <p>Same. — Informalities in Proceedings. — -The provision in the charter of the city of Evansville that mere informalities of the common council in ordering the improvement or in making the assessment or apportioning tiie cost shall not be available to the property-owner as a defence, does not deprive him of any substantial right, but refers to objections which do not affect the merits of the proceedings.</p>

<p>Highways. — “ Good Ordinary Repair.” — •Meaning of Phrase. — In putting-highways in “ good ordinary repair,” within the meaning of that phrase as used in the act of 1881 relating to roads and creating the office of road superintendent (R. S. 1881, section 5064 et seq.), the superintendent might, if necessary, construct culverts and grades and do gravelling and ditching, the necessity depending upon the character of each particular road.</p> <p>Same. — Time When Repairs Shall be Made. — Directory Statute. — The provision of the statute (section 5071, R. S. 1881), that all work denominated “ ordinary " shall he done in the months of April, May, June and July, is directory, and not a limitation upon the power of the superintendent to make improvements upon highways.</p> <p>Same. — Iioad Superintendent. — Advancement of Private Funds to Pay for Improvements. — Recovery from Township. — A township road superintendent, who advanced money from his private funds to pay for improvements made upon public highways, may recover from the township the amount advanced by him, necessary to put the highways in good ordinary repair, as the transaction is not one which the law inhibits.</p> <p>Same. — Exceeding “ Good, Ordinary Repair.” — If the superintendent advanced no more money than was necessary to put a highway in “good ordinary repair)” the fact that it was put in superior repair by the use of money contributed by citizens does not prevent him from recovering for the money advanced.</p> <p>Same. — Evidence.-—Opinion.—Witnesses who have had experience in improving and maintaining highways, and who are acquainted with a particular highway, its condition and the character of the land over which it runs, may give an opinion as to what is necessary to put it in good ordinary repair.</p> <p>Practice. — Objection to Evidence. — Must be Specific. — An objection to evidence that it is “ irrelevant, incompetent and immaterial ” is too indefinite to present any question for review in the Supreme Court.</p>

<p>Bailroad. — Fence.—Private Grossing and Gates. — Liability for Injury to Animals. — A railroad company, which has constructed a private crossing and erected gates for the convenience of a land-owner, is not liable to the latter for animals which escape through the gates by reason of defective fastenings and are injured upon its track, unless it lias contracted to keep the gates closed and in proper repair.</p> <p>Same. — Duty to Keep Private Gates Closed. — It can not be implied from the fact that a railroad company constructed a crossing and gates, which are used exclusively by a land-owner, that the former came under an obligation to keep the gates closed.</p> <p>Supreme Court.— Gross-Error.— Practice.— Where no cross-error is assigned, an objection by appellee that evidence of a special defence was erroneously admitted by the trial court, under a general denial, is not available.</p>

<p>Supjreme Ooubt. — Causes for New Trial. — Assignment of Error. — Matters which are properly causes for a new trial must be assigned as such in the motion therefor or theywill not be considered on appeal.</p> <p>Same. — Harmless Errors — Reversal of Judgment. — Where the record does not show that errors complained of were either injurious or probably injurious to the appellant, they are not available for the reversal of the judgment.</p> <p>Same. — Presumptions.—All the presumptions are in favor of the correctness of the rulings of the trial court, and" on appeal they will be indulged until affirmatively overcome.</p>

<p>Sureties. — Discharge hy Refusal ofOi-ediior to Accept Payment when Tendered. —A creditor impliedly undertakes that the debt due him may be paid at maturity, and if he refuses to accept the amount when tendered, the sureties in the obligation are discharged from liability.</p> <p>Same. — Promissory Note. — Reloaning Money to Principal. — Where the holder of a note, when paymeht is tendered by the principal debtor at the maturity of the obligation, accepts part of the amount due, and, with knowledge that the other makers are sureties, reloans the balance to the principal, the sureties are thereby released.</p> <p>Same. — Tender.— Waiver. — Where the money is actually produced and offered, and the creditor does not object to the tender, hut requests the debtor to retain the money, he can not subsequently insist that the tender was not sufficient.</p> <p>Pleading.— Word “Reloan ’’ Describes a Fact. — An averment that money was reloaned for a definite time is the averment of a fact, and not of a mere conclusion. «</p>

<p>Sale. — Debtor and, Creditor. — Fraudulent Transfer of Chattels. — Trust.—One who, by collusion with an insolvent debtor, accepts a transfer of chattels belonging to the latter, and, with intent to place the property beyond the reach of the transferrer’s creditors, converts and sells it, takes no title as against such creditors, and may be compelled, in equity, to account to them, as trustee, for the value of the property so taken.</p> <p>Same. — Misjoinder of Causes of Action. — A complaint seeking judgment against the debtor upon notes executed by him, and also seeking to compel the fraudulent transferee to account for the value of the property converted by him, does not show a misjoinder of causes of action.</p>

<p>Pleading. — Complaint Before Justice of the Peace. — Sufficiency of. — A complaint, in a civil action before a justice of the peace, is sufficient if it will inform the defendant of the nature of the cause of action, and bar another action for the same cause.</p> <p>Same. — Arrest of Judgment. — For a complaint, in an action originating before a justice of the peace, which is held sufficient to withstand a motion in arrest of judgment in the circuit court, on appeal, see opinion.</p>

<p>Highway. — Proceedings to Locate. — Appearance.— Waiver. — A party who appears before the hoard of commissioners in a highway proceeding, and fails to make objections there, will be deemed to have waived all defects and irregularities' except such as render the proceedings wholly void.</p> <p>Same. — Petition.—Description.—Names of Oumers of Land. — -It is not necessary that the petition for a highway should set out a description of each separate tract of land, with the name of the owner.</p> <p>Same. — Point of Commencement. — The point of commencement of a highway is sufficiently designated by the following description: “ Beginning at the signboard situate on the north line of the N. E. quar. of section 17, in township 1 north, and range 2 west, where the Paoli and Iiaysville road intersects the Pinnick Ferry road, running thence,” etc.</p> <p>Same. — Remonstrance.—Resident Freeholders. — Public Utility. — Where a remonstrance does not show on its face that the remonstrants are resident freeholders of the county in which the highway is to be located, or where it alleges merely that the highway will “ not be of sufficient public utility,” it may be struck out.</p> <p>Same.— Circuit Court.— Power to Compel Correction of Commissioners’ Record. —The circuit court has no power to compel the board of commissioners, by an order against the board and the county auditor as its clerk, to correct its record so as to show an offer on the part of the appellant to file an amended remonstrance.</p> <p>Same. — Amendment of Remonstrance. — It is not error for the circuit court to refuse to allow a party to amend his remonstrance, which has been rejected by both the board of commissioners and the circuit court, unless a reason is shown why the amendment was not made in the commissioners’ court.</p>

<p>Debtor and Creditor. — ■ Voluntary Assignment. — Agreement to Release Glaim Upon Partial Payment. — Judicial Sale. — An agreement by a creditor to release all claim upon land previously purchased by him at a sale upon-execution, in consideration that the assignee of his debtor will pay him a certain sum, less than the amount of his bid,, is not within the rule that a partial payment will not discharge a debt, and is binding.</p> <p>Same.— Valueless Junior lien. — Redemption from Execution Sale.— Right of Creditor to Enforce. — Where a deed of assignment provides that the proceeds realized from the property conveyed to the assignee shall, after the payment of expenses,'be first applied to the redemption of lands of the assignor sold on execution, and next to the payment of liens in the order of priority, to which provisions all the creditors agree, a judgment creditor, whose lien is valueless by reason of being junior to many others, can not compel the assignee to pay him the amount of his bid at a sale-under his judgment. ‘</p>

<p>RaIi/road. — Refusal to Stop Train at Station. — Jumping from Moving Train.— Negligence. — ■Contributory Negligence. — A railroad company, although it wrongfully refuses to stop its train to allow a passenger to alight at his destination, is not liable for an injury sustained by the passenger in voluntarily jumping from the train while it is in motion.</p> <p>Same. — Proximate Cause of Injury. — Intervening Agency. — Where a passenger, at the command of the persons in charge of a moving train, jumps, therefrom upon the platform of a station, and alights safely, but is run against by another passenger alighting at the same time, and is thrown under the train by the force of the collision, and injured, the railroad company, in the absence of a further showing, is not liable.</p>

<p>MobtgAGE. — Foreclosure.—Parties.—Subsequent Purchasers — Feeds Recorded Pendente File. — Notice.— Judgment Binding Upon Strangers to Record.— March 6th, 1882, B. purchased part of mortgaged real estate, the mortgage being of record. April 11th, 1882, foreclosure proceedings were begun. October 17th, 1882, B.’s deed was recorded, and on the 1st day of December following, a. decree foreclosing the mortgage was entered. The mortgagor was in possession of the entire property. The mortgagee had no notice of B.’s title until after the decree was entered, and B. was not made a party to the foreclosure p'roceedings.</p> <p>Held, that B. is bound by the decree to the same extent as if a party to the proceedings.</p> <p>Held, also, that the mortgagee was not affected with notice of a deed recorded pendente lite.</p> <p>Held, also, that B., haying recorded the deed after the time limited by statute and while the foreclosure suit was pending, was, to all intents and purposes, a purchaser pendente lite.</p>

<p>FbauduIiENT Conveyance. — Subsequent Creditors. — Complaint.— Burden of Proof. — A complaint hy a subsequent creditor to set aside, as fraudulent, a conveyance of real estate made by his debtor, must aver an intention on the part of the grantor to defraud the plaintiff, or the class of creditors to which he belongs, and guilty knowledge on the part of the grantee, as in such case the burden of proving all that is necessary to establish the fraudulent intent rests upon the plaintiff.</p> <p>Same. — Secret Trust. — Statute Construed. — Section 4921, E. S. 1881, although not expressly so providing, applies to conveyances of real estate, and includes secret as well as declared trusts; and, under that section, where land has been conveyed to a third person in secret trust for the use of a. debtor, to whom the property really belongs, it may be reached by subsequent creditors and subjected to the satisfaction of their claims, and a complaint for that purpose will be good without an averment that the conveyance was made for the purpose of defrauding subsequent creditors.</p> <p>Same. — Judgment for Alimony. — A wife who has obtained a judgment for alimony is a subsequent creditor bf her husband within the legal meaning of that term.</p>

<p>County Commissioners. — Special Session* — Drainage Proceedings. — Presumption. — Where the board of county commissioners meets in special session and transacts business which the law authorizes it to transact at a special session (such as acting upon petitions for drains under the act of 1875, 1 E. S. 1876, p. 428), it will be presumed, in the absence of a showing to the contrary, in support of the proceedings when collaterally questioned, that it was duly convened.</p> <p>Same.— When Proceedings at Special Session are Invalid. — It is "only where the business is such as can only be transacted after giving notice, and in which adversary proceedings may be had, and for the transaction of which at a special session no express statutory authority exists, that the board can not lawfully act at a special session. Oity of Vincennes v. Windman, 72 Ind. 218, distinguished.</p> <p>Dbainage.— Notice. — Erroneous Names. — Quieting Title.— Tender. — Where the notice in drainage proceedings, instituted before the board of commissioners under the act of 1875, is defective by reason of wrong and inaccurate names of land-owners being given, yet if the board has adjudged it sufficient, and has proceeded to establish the drain, the proceedings are not void as to one who received proper notice, and if the latter’s land has been sold under an assessment, he can have his title quieted against the purchaser, if there are irregularities justifying such action, only by paying or tendering the amount due from him.</p> <p>Same.— Acquiescence.— Waiver of Irregularities.— Estoppel.— A party who stands by, without objecting, until after a drain, beneficial to his land, has been constructed in good faith under color of statutory proceedings, ■ and until the rights of others have intervened, will be deemed to have waived all irregularities in the proceedings for the establishment of the drain.</p>

<p>Deaena/je. — Act of 1885. — Additional Notice as to Lands Affected. — Time of Filing Remonstrance. — Where the land of an owner, affected by a drain proposed to be constructed under the act of 1885, is not all described in the petition, he is not limited to ten days from the filing of the final report of the commissioners within which to remonstrate, but the last proviso in section 3 of the act (Acts of 1885, p. 133J governs, and he has ten days after the additional notice there provided for has been given.</p>

<p>Guardian and Ward. — Removal of Guardian — Discretion of Probate Court. —Supreme Court. — The Supreme Court will not reverse the action of a court of probate jurisdiction in removing a guardian, except for abuse of the large discretion -vested in it.</p> <p>Same. — Costs.— Where a guardian is removed on petition, the costs of the proceedings should be taxed against him.</p>

<p>BEELEvnsr. — Before Justice of the Peace.— Evidence of Tax Assessment List.— Tax assessment lists maybe competent either as original evidence or, if the proper foundation be laid, to impeach in rebuttal.</p> <p>Same. — Evidence as Limited by Section 1549, B. S. 1881. — Jurisdiction.—Undersection 1549, B. S. 1881, the jurisdiction of a justice of the peace in replevin cases is limited to an inquiry concerning the ownership and right of possession of property seized by virtue of the writ, and to the property which the officer returns as “ not found; ” hence, where the complaint is respecting five hogs, the constable making return of a levy upon four, with no return of “ not found ” as to the other, the evidence must be confined to those levied upon.</p> <p>Same. — Sufficiency of Verdict. — In a case in replevin appealed to the circuit court from a justice of the peace, the jury found for defendant, and that he was entitled to the return of the property seized.</p> <p>Meld, that the verdict is sufficient under section 1550, B. S. 1881, without assessing the value of the property or the damages for its taking or detention.</p>

<p>Criminal Law. — Justice of Peace. — Appeal from Judgment Entered Upon Plea of Guilty. — Neither section 1643, B. S. 1881, nor any other law of this State, authorizes an appeal by the defendant from a judgment rendered by a justice of the peace upon a plea of guilty, and for the payment of which the defendant has procured replevin bail.</p>

<p>Township Trustee. — ■Defalcation.—Allowance far Services. — Assignment of, to Sureties for Indemnity.— When Not Enforceable Against Township. — The sureties on the bond of a defaulting township trustee can not recover against the township, as assignees of an order of the board of county commissioners, payable out of the township funds, given to the trustee for his services, and assigned for the indemnity of the sureties, so long as the township has an unpaid judgment against the township trustee for money lost by his default, in excess of the amount of the order. The order of allowance is not a commercial instrument, and the sureties’ rights are no greater than their principal’s.</p>

<p>Telegbaph Company. — Repeal of Statute. — Section 4177, R. S. 1881, making telegraph companies liable for special damages occasioned by a neglect of duty in respect to messages, was not repealed or affected by the act of April 8th, 1885 (Acts of 1885, p. 151), relating to telegraph and telephone companies.</p> <p>Same. — Failure to Deliver Message. — Special Damages. — Contract.— Condition Requiring Claim to be Presented Within Sixty Days. — A person to whom a message has been sent may maintain an action under section 4177, R. S. 1881, for the recovery of special damages caused by the failure of the telegraph company to deliver the message. He is not bound by the contract between the sender of the message and the company, and hence his failure to present his claim for damages within sixty days, as stipulated in the contract, is not a defence.</p> <p>Same. — Agency.— Contributory Negligence. — Where a person applies to a manufacturing company, doing business in Another city, for a situation, and directs that in the event of a vacancy he shall be notified at the place of his residence, the agent of the company, who sends a message to him offering a situation, can not, without more, be regarded as his agent, and the neglect of the sender to give further information to the telegraph company, after an ineffectual effort to deliver the message, is not a defence to an action, by the person to whom the message was sent, for damages.</p> <p>Same. — Delivery of Message. — Ineffectual Search. — Where the complaint in such case alleges that the person to whom the message was sent had resided within one mile of the receiving telegraph office, in the same house, for six years, when the message came to the receiving office, the more fact that the messenger of the telegraph company made ineffectual search and inquiry for him is not a defence.</p> <p>Same. — Measure of Damages. — Instruction to Jury. — In an action under section 4177, R. S. 1881, to recover damages for the loss of an offered situation, at two dollars per day, occasioned by the neglect of a telegraph company to deliver a message, an instruction that the measure of plaintiff’s damages will be two dollars per day from the time the message was sent to the commencement of the action, excluding Sundays, and deducting money earned at other employment, or which might have been earned by the exercise of reasonable diligence in seeking other employment, is not harmful to the defendant, and, even if erroneous, is not available for the reversal of the judgment. Niblack, J., dissents.</p>

<p>Evidence. — Negligence.—Injury by Frightened Horses. — Railroad Oars in Highway. — In an action against a railroad company to recover for an injury caused by tbe plaintiff’s horses taking fright at cars negligently permitted to encroach and stand upon a highway, where it was crossed by a side-track, the testimony of other persons, who had travelled upon the highway some days prior to the accident, that their horses had likewise taken fright at the cars, is not competent, and its admission harmful error.</p> <p>Same. — Similar Occurrences. — Evidence of, Not Competent. — Evidence of similar occurrences on other occasions is not admissible to raise a presumption that the accident in question happened, or that the place was defective and dangerous, or that the situation was of such a character that the accident resulting in the injury for which damages are claimed, might have taken place.</p> <p>Same. — Objects Calculaied to Frighten Horses. — It is not a subject to be pleaded, and proved whether a box-car, or other particular object, is naturally calculated to frighten horses, but this is to be determined by the experience, observation and intelligence of the court and jury, as applied to the facts of the case before them.</p> <p>Obstruction op Highway.— Violation of Statute. — Frightened Horses. — Damages. — The mere fact that an object is in a highway, in violation of a statute, does not necessarily make the owner liable for damages resulting from the frightening of horses, but to create liability there must be a natural causative connection between the violation of the statute and the frightening of the horses, and the injury must be proximately within the purpose and protection of the statute. '</p> <p>Same.— Eailroad. — Intermeddlers. — Negligence. — Instruction. — A railroad company may leave its ears standing upon its side-track at any point except in a highway; and if a car is so placed that it does not obstruct the highway, and is afterwards moved into the highway by intermeddlers, the company is not liable for an injury caused thereby, unless the car is negligently permitted by it to remain upon the highway an unreasonable time, and it is error to refuse to so instruct the jury.</p>

<p>VOLUNTABY Assignment. — Judgment.—Promissory Note. — Merger.—Where a creditor, after the voluntary assignment of his debtor, obtains judgment upon notes held by him at the time of the assignment, the judgment merges the notes as a cause of action, and changes the evidence of the debt, but the incidental right to share in the trust funds in the hands of the assignee is not merged, and the creditor may subsequently file and prove his claim. Bowen v-. Eichd, 91 Ind. 22, distinguished.</p>

<p>Goakdian’s Bond. — Liability of Sureties. — Sureties in a guardian’s bond are not liable beyond the amount of the penalty fixed therein. Sections 1221, 2459 and 2527, R. S. 1881, can not be so construed as to extend their liability.</p>

<p>Divorce. — Decree for Alimony. — Payment in Instalments. — Interest.—Where alimony is allowed in a gross sum, which is made payable in instalments maturing at fixed dates, interest on the instalments is not recoverable, if they be paid when due, unless it is so provided in the decree; and the fact that the judgment defendant, under an order of the court, gives bond conditioned for the payment of interest, makes no difference. If the instalments be not paid at maturity, they thereafter bear interest at the rate of six per cent., as provided in section 5199, B. S. 1881.</p>

<p>CitmiNAi/ Law. — Affidavit Before Justice of the Peace.— Unknown Persons.— Under section 1755, R. S. 1881. — which is held applicable to proceedings before justices of the peace — an affidavit charging a public offence will be sufficient if the defendant is described therein as a person whose name is unknown to the affiant.</p> <p>Same. — Insufficient Warrant. — Appearance.— Waiver of Defects. — A warrant issued by a justice of the peace commanding the arrest of a named person “ and five other persons, whose names are unknown,” is bad as to all persons arrested thereunder, except the one whose name is given, if timely objection be taken; but a motion to quash the warrant and discharge the defendants from custody will be unavailing if made after such parties have secured a continuance and entered into a recognizance for their future-appearance.</p> <p>Same.— Weight of Evidence. — Supreme Court. — A finding or verdict, if sustained by evidence on every material point, will not be disturbed by the Supreme Court, even in a criminal case, on the mere weight of the evidence.</p> <p>Pj%osecuting Attorney. — Docket Fees. — Where a prosecuting attorney appears and prosecutes a defendant, both before a justice of the peace and in the circuit court on appeal, each time obtaining a judgment of conviction, he is entitled to a fee in each' court, as provided by section 5866, E. S. 1881.</p>

<p>Beelevin. — Property Seized Upon Execution. — Bights of Beplevim, Bail. — The .statute authorizes the issuing of an execution against a replevin bail, but it is the duty of the officer to first exhaust the property of the principal debtor; and while the bail may compel the performance of that duty, he can not maintain an action of replevin against the officer to recover possession of property levied upon.</p>

<p>Negligehce. — Carrier and Passenger. — Injury from Overturned Coaeh. — Complaint for Damages. — A complaint alleging- the existence of the relation of passenger and carrier between the plaintiff and defendant, and that the former was injured by the overturning of the latter’s stage-coach, states a prima fade case against the carrier, without alleging the precise manner in which the particular acts of negligence charged resulted in the accident and injury.</p> <p>Same. — Diffident Driver. — Duty of Carrier to Provide. — It is not a defence to an action for damages that the driver, the night being dark, suffered the suggestions of the passenger to lead him off the roadway, as it was the duty of the carrier to supply the coach with a driver who himself knew the way. .</p> <p>Same. — Accord and Satisfaction. — Instruction to Jury. — Accord and satisfaction being pleaded, an instruction to the jury that if the plaintiff had agreed to accept payment of his doctor’s bill, and the right to ride in the defendant’s coaches for a time fixed free of charge, in full satisfaction of his claim for damages, he would not be entitled to recover, provided the agreement had been executed, is correct.</p> <p>Same. — Failure to Provide Lights. — Assumption of Pish. — The fact that the carrier habitually used coaches to which no lights were attached, and that the plaintiff had knowledge of the custom, when he became a passenger, does not relieve the carrier of liability, unless the failure to provide lights was such a glaring deficiency as to make it apparent to prudent persons that the journey without them could not be taken with safety.</p>

<p>Divobce. — Complaint.—Sufficiency of. — A complaint by a wife for divorce, alleging cruel and inhuman treatment, and charging specifically that the defendant had struck, kicked and choked the plaintiff, and neglected to secure medical attention for her when sick or to give her any attention himself, is good.</p> <p>Same. — Alimony.—Discretion of Trial Court. — The Supreme Court will not review the decision of the trial court respecting alimony, unless there has been an abuse of discretion.</p> <p>New Trial. — Newly Discovered Evidence. — A complaint for a new trial, on the ground of newly discovered evidence, is bad if it fails to show that the new evidence was not discovered during the term at which the decree was rendered.</p>

<p>County Commissioners. — Special Session.— What Business May he Tram-acted. — When the board of commissioners is once lawfully convened in special session, no matter for what purpose, it may at sueli session entertain and act upon any business which may be then presented for consideration, where notice is not required by law to be given previous to the action of the board. '</p> <p>Gravel Road. — County Commissioners.- — Special Session. — Notice.—Authority to Act Upon Gravel JRoad Petition. — Under section 5738, R. S. 1881, an oral notice to the members of the hoard of county commissioners of a special session is sufficient, and when so convened, or when they are lawfully in special session for the transaction of other business, they are authorized, under the provisions of the act of March 3d, 1877 (Acts of 1877, p. 82), without previous notice to any party interested, to act upon a petition then presented for the establishment of a gravel road.</p> <p>Same. — Jurisdiction.—Notice of Meeting of Viewers. — Presmvption.—In a proceeding to enjoin the collection of assessments levied for the construction of a gravel road, it will be presumed, in the absence of averment to the contrary, that, upon the appointment of the viewers and surveyor in the original proceedings, the county auditor gave the notices required by section 5092, R. S. 1881, respecting the time and place of meeting of the viewers, the kind of improvement petitioned for, etc., and that the board of commissioners thus acquired jurisdiction of the parties interested.</p> <p>Same. — Collection of Assessments. — Injunction.—In a collateral attack, every reasonable presumption will be indulged in favor of the validity of the proceedings of the board of commissioners, and in the absence of a showing that its proceedings were void, by reason qf a lack of jurisdiction of the subject-matter or parties, a suit to enjoin the collection of assessments can not be maintained.</p>

<p>Chattel Mortgage. — Mortgagor in Possession. — Sale of Property. — Trust.— An agreement between the mortgagee and mortgagor in a chattel mortgage that the latter shall continue in possession and sell the property in the usual course of business, the net proceeds to be applied upon the mortgage debt, does not create a trust, under section 4921, B. 8.1881, in favor of the mortgagor.</p> <p>Same. — Application of Proceeds of Sales 'to Mortgage Debt. — When such an ■ agreement has been entered into, and the mortgagor fails, either- in whole or in part, to apply the proceeds as stipulated, the law will make the application when necessary for the protection of other creditors. Same.— When Trust is Created. — It is only when the mortgagor is authorized to dispose of the mortgaged property substantially for his own benefit that a trust is created for his use.</p> <p>Same. — Complaint by Creditors to Set Aside; — Evidence.■—-A complaint by creditors to set aside a chattel mortgage alleged to have been executed by their debtor with fraudulent intent, states a case under section 4920, B. S. 1881, but is not sustained by evidence that the transaction, by a subsequent agreement between the mortgagor and mortgagee, had been changed into a mere conveyance of the property in trust for the use of ■the former, thus making a case under section 4921.</p>

<p>County Superintendent. —Election of. — Tie Vote. — Auditoi-’s Casting Vote. —Right of Incumbent to Hold Over. — Quo Warranto. — Township trustees met at the time required by statute to appoint a county superintendent of schools to succeed W., the then incumbent. Several ineffectual votes were taken, and on the last ballot one-half of the trustees voted for E. and the other half voted in blank. A resolution was then offered declaring that E. be appointed. The vote upon the adoption of the resolution was evenly divided for and against it. The county auditor thereupon gave a casting vote in favor of the resolution, and a certificate of election was issued to E. Quo wairanto by, W., claiming that no successor to him has been elected, and that he is entitled to hold over.</p> <p>Held, that the election of E. was void, because (1) the trustees, under section 4424, B. S. 1881, must determine, without dictation from the auditor, the manner in which the election of superintendent must be held, and that the action of the auditor, in assuming to give a casting vote upon the adoption of the resolution, was unwarranted dictation; (2) under such section 4424 the vote upon the resolution proposed did not constitute a tie authorizing the auditor to give the casting vote, and there could be no election under such resolution unless, a quorum of all the trustees being present, a majority of such trustees vote therefor.</p>

<p>Sheb.ifi,’s Sale.1 — Rents During Time A ttowed for Redemption. — Right of Purchaser to Recover. — Act of 1881. — Impairing Obligation of Contracts. — Constitutional Law. — Simple con tract ^debts were created by H. in 1880, while the redemption law of 1879 was in force. That law provided that the owner or occupant of land sold on execution should be liable to the purchaser, in case redemption should not be made, for the reasonable rents thereof during the time allowed for redemption. A sale of il.’s property was made in 1884, after the redemption law of 1879 had been superseded by that of 1881. The later law creates no liability for rents during the time allowed for redemption. It declares that its provisions shall not apply to sales made prior to its passage, but that all sales and redemptions subsequently inade shall be governed thereby.</p> <p>Hdd, that the act of 1881 governs, and rents áre not recoverable by the execution purchaser.</p> <p>Held, also, that the act of 1881 is not uncdnstitutional as impairing the obligation of contracts.</p> <p>Constitutional Law.— Obligation of Gontracts.— Enactments Impairing.— For a discussion of general principles relating to enactments which affect the remedy merely, as distinguished from those which, by limiting or changing the remedy, impair the obligation of pre-existing contracts, and for the.citation of many valuable authorities, see opinion.</p>