Volume 115 — Indiana Reports

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

<p>Bastardy. — Judgment.—Escape of Defendant from Constable. — Subsequent Arrest. — Action Upon Officer’s Bond. — Mitigation of Damages. — A judgment against a bastardy defendant, who is not in custody, that he shall be committed to jail until the judgment in favor of the relatrix be paid or replevied, is authorized by section 986, R. S. 1881, and the fact that the defendant is subsequently arrested and committed to jail in pursuance of the judgment may be pleaded in mitigation of damages in an action by the relatrix upon the bond of a constable for allowing the defendant to escape from his custody, thus limiting the plaintiff’s recovery to the damages actually sustained by reason of the escape'.</p> <p>Same.— Warrant. — Officer’s Return. — Parol Contradiction. — Evidence. —Where, in the action on the bond, the constable testifies, without objection from the plaintiff, to a state of facts showing that he had never arrested the bastardy defendant, it is not error to permit him to testify, in explanation of the apparent contradiction between his testimony and his return on the warrant, that his return showing the arrest and escape of the defendant was made in that manner at the request of the relatrix’s attorney.</p> <p>Instruction to Jury. — Reversal of Judgment. — Supreme Court. — Where the merits of a cause have been fully and fairly tried, and a right conclusion has been reached, an erroneous instruction will not authorize the reversal of the judgment.</p>

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

<p>Railroad. — Ejectment.—Statute of Limitations. — Adverse Possession. — Pleading. — A complaint in ejectment, against a railroad company incorporated under the laws of this State, which shows that the plaintiff has been the owner of the land sought to be recovered for more than twenty-five years, during all of which time the defendant has held adverse possession, is bad on demurrer as showing a cause barred by the twenty years’ statute of limitations, and not within any of the exceptions to the statute.</p> <p>Same. — Trespass.—Adverse Possession Beginning With.— The fact that the railroad company took possession of the land as a trespasser did not prevent the running of the statute of limitations, and open and adverse use for twenty years was sufficient to establish a right of way.</p> <p>Same. — Damages.— When Action to Recover Barred. — Title acquired by an adverse occupancy for twenty years will defeat any claim that the original owner may have had for damages resulting from such occupancy. Co.v v. Louisville, etc., R. R. Co., 48 Ind. 178, distinguished.</p> <p>Same. — Private Nuisance. — Prescriptive Right to Maintain. — A right to maintain a strictly private nuisance upon the land of another may be acquired by prescription, and the time necessary to perfect a prescriptive right in this State is twenty years.</p> <p>Same. — Ejectment.—Injunction.—Estoppel.—A land-owner who has stood by for thirty years, and, without objection, allowed a railroad company to expend its money in the construction and repair of its road upon his land, is estopped to maintain either ejectment or injunction.</p> <p>Same. — Damages.—Successive Actions. — Where land is taken by a railroad</p> <p>. company, all damages therefor, and all that naturally and proximately result from the proper construction and operation of the road, must be recovered in one action, as successive actions can not be maintained.</p> <p>Same. — Subsequent Purchaser. — Right of Action. — Such damages accrue to the person owning the land at the time of the construction of the road; they do not pass to a subsequent purchaser, except by a special stipulation, and to entitle him to maintain an action therefor he must procure an assignment of the claim.</p> <p>Same. — Defective Bridge. — Overflows Caused by. — Accruing of Cause of Action.— A subsequent grantee of land may maintain an action for damages resulting, during a freshet, from overflowing backwater caused by the negligent construction of a railroad bridge, prior to his purchase, over a natural watercourse flowing through his land, the cause of action for such damages accruing at the time of the overflow, and not at the time the bridge was constructed.</p> <p>Same. — Prescriptive Right to Overflow Adjoining Lands. — To constitute a prescriptive right in favor oí a railroad company to overflow the lands of another, by maintaining an insufficient and negligently constructed bridge upon its right of way, it is not enough to show that the bridge! has been maintained in the same manner for twenty years, but it must be shown that there has been a lapse of twenty years since such an invasion of the adjoining proprietor’s rights as resulted in the accruing to him of a cause of action therefor.</p> <p>Same. — Acquiescence.—Estoppel.—The facts that the plaintiff and his predecessors in the title to the land had knowledge of the erection of the bridge and the manner of its construction, and made no objections, do not, in the absence of an averment that the plaintiff knew that the bridge would flood his land and that he acquiesced therein, create an estoppel against him.</p> <p>Same. — Right to Remove Fences Encroaching Upon Right of Way. — A railroad oompany has the right to remove, without liability for damages, fences constructed upon its right of way, lawfully acquired, by an adjoining land-owner.</p>

<p>Partnership. — Execution.—Sale of Firm Property for Individual Debt. — Injunction. — While the interest of a partner in the firm property may be sold upon execution for his individual debt, specific articles of partnership property can not be so sold, and injunction will lie at the suit of the firm.</p> <p>Same. — Declarations of Partner. — Estoppel of Firm.— Notice. — Tender.—The declarations of one partner, in the absence of the other members of the firm, that certain property is the individual property of the partner for whose debt it is taken, are not within the scope of his powers as a partner, and do not estop the firm from suing to set the sale aside and to enjoin the removal of the property, which they may do without tendering the money paid by the purchaser; nor can the acquiescence of one partner in the sale of the firm property for the debt of another partner, bind the members of the firm having no notice.</p>

<p>Town. — Negligence.—Excavation in Street. — Proximate Cause of Injury. — Intervening Agency. — "Where one, while passing along the street of a town in charge of a prisoner, is seized by the latter, in an attempt to escape, and thrown into a pit negligently permitted by the town authorities to remain in the street, whereby he suffers injury, the town is not liable» its negligence not being the proximate cause of the injury.</p> <p>Same. — Instruction to Jury. — An instruction that if the street was in ordinarily safe condition for ordinary public travel, the plaintiff could not. recover, the town not being bound to provide against extraordinary conditions or circumstances, is correct as an abstract proposition, and, even if not applicable to the case made, is not harmful to the plaintiff.</p>

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

<p>Evidence. — Physician and Patient. — Knowledge Acquired in Discharge of Professional Duty.— Will. — Action to Set Aside. — In an action to set aside a will, it is not competent, if objection be made, for a physician who attended the testator in his last illness to testify as to his mental and physical condition, from knowledge acquired by him while in the discharge of professional duty. Section 497, R. S. 1881.</p>

<p>Bailroad. — Township Aid,. — Taking Stock. — Mandate to Compel Collection of Special Tax. — Mortgage.—Foreclosure and, Sale. — Under the act of 1869 (Acts 1869, Spec. Sess., p. 92) a township, upon a proper petition, voted to aid a named railroad company in constructing a railroad by taking the stock of such company to a certain amount. A special tax was levied in 1872 for one-half of the amount appropriated, and the money thus raised was paid to the company, it having done work to that amount in the township. The next year a levy was made to raise the balance of the appropriation, but it has never been placed upon the tax duplicate for collection. In 1875, and before the completion of the road, the company mortgaged all its property and franchises, became insolvent, and ceased work upon the road. At a sale under a foreclosure of the mortgage, all the property and franchises covered by the mortgage were conveyed to a new and independent corporation, sustaining no relation 'to the old company. The new company has completed the road through the township. It has neither issued nor offered to issue any capital stock to the township, but seeks by mandate to compel the collection of the second half of the taxes levied in behalf of the old company.</p> <p>Held, that no right to the appropriation passed to the new company by the mortgage and foreclosure proceedings, and it is not entitled to the money voted to the old company, and can not enforce the collection of the taxes, as it can neither demand the appropriation as a donation nor in return for stock other than that of the company to aid which the appropriation was made.</p> <p>.Same. — Aid by Way of Donations and Taking Stock. — Statutory Distinction.— The statutes of this State create a distinction between appropriations by townships, by way of donations to railroad companies, and by way of taking stock therein; and the people to be taxed have a right to determine in advance, and to impose a condition', that the amount appropriated shall be by way of taking stock; when this has been done, the money can not be demanded by the railroad company as a donation. Same. — Appropriation a Contract. — An appropriation by a township by way of taking stock in a railroad company, when within the authority given by the statutes and when the subscription is made, will be considered as a contract, just as a subscription for stock in such company by an individual is a contract, and the township is entitled to the same protection as a private subscriber.</p> <p>Same. —Subscription to Stock. — Sow Made. — Under the act of 1869, concerning aid to railroads, the simple voting of aid by a township is not a sub■scription to the stock of the railroad company, but the subscription is ■to be made by the board of county commissioners, which, for that purpose, acts as the agent of the township, and until the board exercises such power there is no perfected or enforceable subscription.</p> <p>Same.- — ■ When Appropriation Becomes a Chose in Action. — Until the railroad company to which aid has been voted occupies a position which will enable it to enforce whatever right or interest it may have in the appropriation, such appropriation is not a chose in action- in its favor which it can assign or mortgage.</p> <p>Same. — Sale of Railroad Under Foreclosure. — Release of Subscribers to Stock.— Under the act of 1865 (Acts 1865, Beg. Sess., p. 66; B. S. 1881, section 3947; et seq.), relating to the sale of railroads and the formation of new corporations, all subscriptions to the stock of a railroad company whose property has been sold under foreclosure proceedings are discharged, unless there has been a previous adjustment, and such act of 1865 is applicable to subscribers who have become such under subsequent statutes.</p>

<p>Heal Estate. — Oral Contract to Convey. — Specific Performance. — Statute of Frauds. — Where a father orally agrees to convey certain land to his son for services rendered after attaining his majority, and the latter in reliance upon the agreement enters into possession, and so continues uninterruptedly for more than twenty years, making lasting and valuable improvements, and treating the land as his own, while the father repeatedly declares that the land belongs to his son, the contract is withdrawn from the operation of the statute of frauds, and the son is entitled, upon the death of the father without making a deed, to a specific performance.</p> <p>Same. — Trust.—The son having fully performed his part of the contract and thereby paid the purchase-price for the land, his father thereafter held the title in trust for him, and, there being no open disavowal by the trustee, or insistence upon an adverse right, fully made known to the cestwi que trust, no lapse of time is a bar to an action for specific performance.</p> <p>Same. — Demand.—Repudiation of Contract. — Partition. — A suit by other heirs for partition of the land occupied by the son under the agreement with his father, constituted such a repudiation of the contract as to render unnecessary a demand by him before filing a cross-complaint asking a decree for performance.</p> <p>Same. — Proof of Contract. — In a case for specific performance of an oral contract to convey land, while the proof must clearly establish the contract, it is yet a question for the court to determine whether the proof offered is sufficient for that purpose.</p>

<p>Married Woman. — Contract.—Inability for Medical Services. — Under section 5115, B. S. 1881, removing the disabilities of married women to make contracts, coverture is not a defence to an action by a physician for medical services rendered to a wife at her request and upon her promise to pay for the same.</p>

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

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

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

<p>Instructions to Jury. — Refusal to Give. — Presumption.—Where the evidence is not in the record, it will be presumed that instructions which the trial court refused to give, on request, were refused because not applicable to the case made by the evidence.</p> <p>¿Same. — Must be Signed by Judge. — PracUee.—Under the sixth clause of section 533, R. S. 1881, neither instructions requested by a party and refused by the court, nor those given by the court of its own motion, can be made a part of the record unless signed by the trial judge.</p>

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

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

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

<p>Intoxicating Liquor.— Unlawful Sale. — Proof.—Upon an appeal from a conviction for unlawfully selling intoxicating liquor, the fact that the State did not prove the names of the alleged purchasers is immaterial if it appears that the defendant himself made such proof.</p> <p>Same.— Weight of Emdence. — Reversal of Judgment. — A judgment will not he reversed upon the weight of conflicting evidence.</p>

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

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

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

<p>Sheriee’s Sale. — Principal and Surety. — A sale of property belonging to a surety before the property of the principal has been exhausted, as required by the judgment, is not available to defeat the sale at the suit of a third person.</p> <p>Same.— When Will not be Set Aside, Even if Void. — A sheriff’s sale, whether void or voidable, under which third persons have acquired rights, will not be set aside at the suit of a judgment creditor where the latter may, by an ordinary execution, reach other property of his debtor in satisfaction of his judgment.</p> <p>Same. — Priority of Judgment Liens. — Judgments rendered against a debtor by the same court upon the same day have no priority over each other, but tlie person who first obtains an execution and levy secures a lien superior to that of the other judgment creditors.</p> <p>Same. — Irregularities.—Not Available to Judgment Creditor. — A sheriff’s sale will not be set aside, on account of irregularities, in an action by a judgment creditor.</p> <p>Same. — Description.—Levy.—Presumption.—Where real estate has been sold and conveyed by a sheriff by a correct description, it will be presumed, in a suit by a judgment creditor to set the sale aside, the contrary not being shown, that the property was correctly described in the levy.</p> <p>Same. — Notice of hvogularities. — Innocent Purchaser. — Judgment Surety. — A surety in a judgment, who purchases the property of his principal at a sheriff’s sale made upon the judgment, is not bound to take notice of irregularities in the sheriff’s proceedings, and, in the absence of actual notice thereof, he is entitled to protection as a third party and innocent purchaser.</p>

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

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

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

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

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

<p>Pleading. — Practice.—Assignment of Error. — A defendant can not assign available error upon the sustaining of a demurrer filed by another defendant to the plaintiff's complaint.</p> <p>Sheriee’s Sale. — Junior Diens. — Redemption.—Deed,.—Merger.—In a suit to foreclose a mortgage the holders of junior judgment liens were made parties defendants. At a valid sale under the decree of foreclosure, S. purchased the mortgaged property and received a certificate of sale. Before the year for redemption expired, S. also purchased from the mortgagors their equity of redemption, received a quitclaim deed from them, and went into possession. The junior lien-holders seek to enforce their liens without redeeming from the sheriff’s sale.</p> <p>Held, that the only right of the junior lien-holders was to redeem within the time allowed for that purpose.</p> <p>Held, also, that the title acquired by S. through the sheriff’s deed related back to the date of the sale and vested in him as of that 'date, and hence was not merged in the title acquired under his quitclaim deed from the mortgagors.</p>

<p>Winn. — Personal Property. — Power of Disposition.— Widow. — Promissory Note. —A testator gave his personal property to his wife, directing that what should be left undisposed of at her death should descend to his son. The widow loaned money received from her husband’s estate and took a note, which she assigned without consideration. She afterwards died. The testator’s administrator claims the note as part of the assets of the testator’s estate.</p> <p>Held, that the will at least gave to the widow an absolute power of disposition, which has been effectually exercised, and that the administrator is not entitled to the note.</p>

<p>County Commissioners. — Special Session. — ■Adjjowrning lo a Day in Vacation. — The board of county commissioners can not lawfully convene itself in special session by an order adjourning over beyond the term to a day in vacation.</p> <p>Same. — Collateral Attack Upon Proceedings. — Presumption.—Where the record, by a recital to that effect, shows that the board met in what was assumed to be a special session, and transacted business which it was authorized by law to transact at such session, it will be presumed, when ■ its proceedings are collaterally assailed, that it was regularly called in special session.</p>

<p>Telegraph Company. — Negligence.—Statutory Penally. — Special Damages.— Section 4176, R. S. 1881, relating to telegraph companies, having been</p> <p>• repealed by the act of 1885 (Acts of 1885, p. 151), the fixed penalty prescribed therein for a merely negligent breach of duty in the transmission of messages is no longer recoverable; but such companies are still liable under section 4177, and also upon common law principles, for special damages.</p> <p>Same.— Who May Maintain Action. — It is only the sender of a dispatch who occupies that privity of contract with or relation to the telegraph company which is necessary to the maintenance of a suit for the statutory penalty, and this rule is not changed by the phrase “ any party aggrieved,” as used in the act of 1885; but as to special damages a different rule prevails, and an action may be maintained therefor by the person to whom the message is sent.</p> <p>Same. — Construction of Statute. — In the construction of a statute authorizing the recovery of a penalty, a strict interpretation ought to be given to its provisions, and, in such a case, as in others where the meaning is obscure, a resort may be had to previous legislation on the same subject.</p> <p>Same. — Sale of Cattle. — Failure to Deliver Message. — Recovery for Loss of Weight. — Where one has sold cattle for future delivery, at the option of the purchaser, and the latter sends a dispatch notifying him that he will take the cattle in the morning of the next day, in pursuance of a custom among stock dealers to take and weigh cattle at early daylight, which dispatch the telegraph company fails to deliver promptly, whereby the weighing of the cattle is delayed and their weight decreased, the seller may recover for the loss of weight so resulting from the company’s negligence.</p>

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

<p>Criminal Law.— Arraignment and Plea. —■ Prosecution Originating Before Justice of Peace. — Supreme Court. — Practice.—It is not necessary, in a prosecution originating before a justice of the peace, that the record on appeal to the Supreme Court should affirmatively show that the defendant was arraigned and that a plea was entered,-either before the justice or in the circuit court.</p>

<p>Landlord and Tenant. — Invalid Contract to Devise Land. — Repairs Made by Tenant. — Liability of Landlord. — -Where one goes into possession of land under an oral agreement with the owner by which the latter is to erect a house thereon and devise the land to him, he in the meantime to pay rent for the premises, the relation of landlord and tenant exists, and the occupant can not, upon the owner failing to erect the house, charge the owner with the cost- of repairs made at the latter’s solicitation upon a house already on the land, unless he has agreed to pay therefor.</p> <p>Same. — Failure of Landlord to Erect House as Agreed. — Remedy of Tenant. — -In such case, if the failure to build the house as agreed resulted in damages to the tenant by reducing the value of the leasehold, his remedy is an action for such damages; or he might have erected the house and recovered the cost.</p> <p>Beal Estate. — Possession Under Contract to Devise. — Repudiation of Contract. —Liability for Improvements. — A will can not speak until the testator’s death, and hence one who has gone into possession of land under an agreement whereby he is to become the owner thereof by devise, can not, prior to the testator’s death, on information that the will as executed does not conform to the agreement, repudiate the contract and maintain an action on account for improvements made.</p>

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

<p>Gravel Road. — Construction of. — Additional Assessment.— Notice. — Injunction. — Where the board of county commissioners has made a final order levying an assessment for the construction of a gravel road, it exhausts its jurisdiction to assess land under the original notice, and an additional assessment, if the first proves insufficient, can not subsequently be levied against property-owners without a new notice, and, if levied, its collection may be enjoined.</p> <p>Same. — Pleading.—An averment that no notice whatever was given of the levying of an assessment is not the statement of a mere conclusion, but the statement of a material fact.</p> <p>Pleading. — Practice.—Sustaining Defective Demurrer to Bad Answer. — Harmless Error. — It is at most a harmless error to sustain a defective demurrer to a bad answer.</p>

<p>Set-Off. — Contract.—Tort.— Waiver. — A claim arising out of tort can not be pleaded by way of set-off against a cause of action founded upon or' arising out of contract; nor can the defendant, by waiving his right of action for the tort, make such claim available as a set-off. Section 348. R. S. 1881.</p>

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

<p>Office and Officer. — Mandamus.—Mandamus is not available to settle the title to an office as between adverse claimants; but where a person . holds a prima facie and uncontested title to the office, or where his title has been adjudicated and finally established by a competent tribunal, a writ of mandate may be issued to put him in possession.'</p> <p>Same. — Judgment Hendered upon Unlawful Agreement.— Validity of. — Where a judgment, fair and regular upon its face, has been entered by agreement of the parties adversely claiming an office, such judgment is binding until reversed upon appeal or set aside by a direct proceeding, although the agreement upon which it was entered may have been corrupt and unlawful.</p> <p>Practice. — Continuance.—Change of Venue. — Causes for New Trial. — The erroneous refusal to grant a continuance or to remand the cause to the court from which an irregular change of venue has been taken, are causes for a new trial, and are only available when assigned as such; but where final judgment has been entered on the pleadings, without a trial, such errors are immaterial.</p> <p>Same. — Appearance.— Waiver. — A party who appears in the court to which the venue of a cause has been changed and moves for a continuance, thereby waives his right to thereafter move that the cause be remanded on account of irregularities in taking the change.</p>

<p>Railroad. — Highway Grossing.— Wilful Injury. — A team drawing a loaded wagon was seen by the engineer of an approaching train to be coming on an up grade toward a public crossing, at a point where trains could be seen for more than nine hundred feet. The engineer sounded the signals required by statute, and also sounded danger signals. The driver of the team, a youth twenty years old, and familiar with the crossing, was lying upon the wagon seemingly asleep or otherwise unconscious. The engineer did not see the driver, but supposed he was walking on the opposite side of the team. Seeing that the team would not be halted, the engineer, when still several hundred feet from the crossing, made every effort to stop the train, but without avail, and the driver was killed.</p> <p>Hold, that the facts do not show a cause of action for either a negligent or a wilful injury.</p>

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

<p>Triae. — Argument to Jury, — Misconduct of Counsel. —Material Mror. — Where, in a cause appealed from a justice of the peace to the circuit court, the plaintiff’s counsel, in his closing address to the jury, states that the only object of the defence is to reduce the judgment obtained before the justice enough to throw the costs on the plaintiff, there is such misconduct as will require a'reversal, although the language be withdrawn upon objection being made, unless the court promptly and explicitly directs the jury to disregard the improper statement.</p> <p>Same. — Presumption that Improper Statements are Injurious. — Burden of Showing the Contrary. — Such statements are presumably prejudicial to the adverse party, and the burden is upon the party offending to show that no injury resulted, or that all proper steps were taken to prevent injury.</p>

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

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

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

<p>Foreign Insurance Companies. — Retaliatory Statute. — Constitutionality.—• Section 3 ol the act of March 3d, 1877 (section 3773, B. S. 1881), regulating foreign insurance companies doing business in this State, and containing provisions of a retaliatory character, is constitutional and valid. State, ex rel., v. Insurance Company of North America, ante, p. 257, followed.</p> <p>Same. — City.—Right to Recover Per Cent, of Premiums for Use of Fire Department— Neither such section 3 of the act of 1877, nor any other statute of this State, authorizes a city or town to recover from a foreign insurance company, for the use of its fire department, a per cent, of the premiums received from risks takeu upon property within the municipality, as provided by the laws of the State where such company was incorporated, or where, being organized abroad, it has its principal agency, as the entire regulation of such companies and the collection of taxes therefrom are committed by the laws of this State to the State officers.</p>

<p>Jud&ment. — Conclusiveness of. — Failure to Cover all the Issues. — Ejectment.— Quieting Title. — Where, in a suit to recover possession of real estate and to quiet title, judgment is given against one defendant, following which is a recital that the rights of the other defendants have not been adjudicated, the recital is not conclusive, but the effect of the judgment is to be determined by the issues and finding in the case.</p> <p>Same. — Amendment of Judgment. — Practice.—The sufficiency of a judgment, as to matter of form, can not be questioned by a motion for a new trial assigning as a cause that the judgment is contrary to law; nor is such a motion a proper method by which to secure a modification or amendment, but the remedy is by a special motion for that purpose, questions on which are to be saved by bill of exceptions.</p> <p>Beal Estate. — Possession Under Contract of Purchase. — Mechanic’s Lien.— Estoppel. — Where one who is in possession of real property under a contract of purchase procures improvements to be made thereon, with the mere knowledge and consent of the vendor, the latter is not thereby es-topped to assert his prior and recorded title as against one claiming title through the foreclosure of a mechanic’s lien attempted to be asserted by the person making the improvements.</p>

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

<p>Insurance. — Suspendan of Company. — Promissory Note. — Failure of Consideration. — Where a person contracts for insurance for five years, pays the first year’s premium in money, and executes a promissory note, payable in yearly instalments, for the balance, if the company issuing the policy becomes insolvent and suspends business before the expiration of the-first year, the note can not be enforced, there being a failure of consideration.</p>

<p>Principad and Surety. — Payment by Surely. — Indemnity.—Promissory Note. —Attorney’s Fees. — Decedent’s Estate. — Where a surety, in paying a promissory note executed by himself and his deceased principal, is not required to pay the attorney’s fees for which the note provides, he is not entitled to recover such attorney’s fees from his principal’s estate, but he is entitled to recover the amount paid by him, with interest, and no more, his cause of action being not upon the note, but upon an implied promise of indemnity.</p>

<p>Mortgage. — Mistake.—Mutuality.—Reformation.—Complaint.—Where acomplaint seeking the reformation of a mortgage alleges that the mortgagors agreed to convey the whole of a certain tract of land as security for the-debt, and that both parties intended that the entire tract should be included in the mortgage, but that by the mistake of the scrivener the description written in the mortgage covered only a part of the tract, a mutual mistake is sufficiently shown.</p> <p>Same. — Parties.—Assignment.—Where a mortgage has been assigned by the-mortgagee, the latter is not a necessary or proper party to a suit by theassignee to secure its reformation.</p> <p>Same. — Estoppel.—Where a party accepts a mortgage, believing that all the land agreed to be covered by the mortgage is included in the description, the mortgagor is estopped to assert that he intentionally brought about or silently acquiesced in the discrepancy between the instrument and the agreement.</p>

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

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

<p>Malpractice. — Contributory Negligence. — Contributory negligence is admissible as a defence to an action against a surgeon for malpractice.</p> <p>Judgment. — Against Part of Defendants. — Joint and Several Liability. — Pleading. — Under section 570, B. 8. 1881, every complaint against two or more defendants, whether founded upon contract or tort, will be treated as both joint and several, and, although the complaint may allege a joint liability, the plaintiff will be entitled to judgment against part of the defendants if he proves a cause of action against them and not against all.</p> <p>Instructions to Jury. — Making Part of Record. — Where the transcript on appeal contains a complete series of instructions, at an appropriate place, consecutively numbered, signed by the judge, filed, and with a proper caption, on the margin of each of which there is a memorandum</p> <p>. that it was given and excepted to, also signed by the judge, such instructions are, under section 535, R. S. 1881, properly in the record without a bill of exceptions or order of court, and the presumption is that they were all the instructions given by the court.</p> <p>Same. — Erroneous.— Withdrawal. — The giving of a fatally erroneous instruction can only be cured by a plain withdrawal of 'the instruction. A withdrawal will not be presumed, but must be affirmatively shown.</p>

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

<p>Chattel Mortgage. — Sale.—Purchase by Mortgagee. — Execution.—Instructions not to Levy. — Suspension of Lien. — Damages.—Where the mortgagee of chattels has become the purchaser thereof at a public sale duly made under a power contained in the mortgage, the levy afterwards of an execution in favor of judgment creditors of the mortgagor, the lien of which had been theretofore suspended by a direction to the officer not to levy, is without effect, and the mortgagee may recover from such creditors and officer damages sustained by him by the taking and withholding possession of the property.</p> <p>Same. — Achrmdedgment.—Recording.—An averment that a chattel mortgage was recorded in the proper recorder’s office carries with it the implication that it had been properly acknowledged and otherwise prepared for record.</p>

<p>Decedents’ Estates. — Administrator.—Conversion.—Fraudulent Conveyance. —Setting Aside. — Judgment.—Principal and Surety. — An administrator de bonis non, who has obtained a judgment against his insolvent predecessor and his sureties for the conversion by the former of the assets of the estate, may, without proceeding to collect such judgmentfrom the sureties, and without alleging that there are unpaid claims against the estate, maintain an action to set aside a conveyance, which the defaulting administrator had fraudulently made to his children, of land purchased by him with the trust funds, and to subject such land to the satisfaction of the judgment lien.</p>

<p>Injunction. — Equitable Jurisdiction. — Taxes.—A court of equity will not' enjoin tlie collection of taxes, claimed, to be illegal, until tlie plaintiff has first paid or tendered the amount of taxes assessed against him, the legality and validity of which he does not call in question in his complaint.</p> <p>Same. — Free Gravel Eoad Tax. — Notice.—Pleading.—Complaint.—In an action to enjoin the collection of a special free gravel road tax, an averment in the complaint that such tax was attempted to be levied on the plaintiff “ without notice to him,” is not equivalent to an averment that tlie-same was attempted to be levied “ without any notice whatever,” and is insufficient to charge want of notice.</p>

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

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

<p>Promissory Note. — Assignment.—Agreement of Assignee to Pay for Note if Ne Uses it. — Where one takes the assignment of a promissory note, agreeing 'to pay a certain sum therefor if he can use it, the subsequent use of the note as a cause .of action renders him liable for the stipulated consideration, although it may not appear that he received any money upon it.</p>

<p>Bailroad. — Negligence.—Overhead Bridges. — Brakeman.—One entering the service of a railroad company as brakeman has the right to assume that the company has constructed and maintained its roadway and bridges in such a manner that he can perform his duties with reasonable safety, and that if there is a low bridge or any such danger to be encountered in the service, he will be warned of it.</p> <p>Same. — Duly of Master to Inform Employee of Unusual Bisk. — Where there are dangers and hazards known to the master, or of which he ought to have knowledge by the use of ordinary care, and which are not ordinarily and usually incident to the business, it is his duty to inform the employee of such danger when hiring him, unless the danger is so apparent that the latter will be bound to take notice of it.</p> <p>Same. — Assumption of Bisk by Brakeman.— Unusual Dangers. — A person contracting to work upon a railroad as brakeman assumes the risks ordinarily and properly incident to such service, but he does not assume the risk of unusual dangers, such as result from low overhead bridges, of the perilous character of which he has no knowledge, or of which he is not bound to take notice.</p> <p>Same. — Negligence to Maintain Low Bridge. — A railroad company which constructs and maintains a bridge over its track so low that a brakeman can not, while his train is passing thereunder, walk or stand upon the cars, or even apply the brakes, without injury, is guilty of negligence, and liable to one who, having no knowledge of the peril, is injured while in the discharge of his duty.</p> <p>Same. — Maintenance of Low Bridges by Other Railroads. — Evidence.—In such a case, evidence that there are bridges on all railroads in the United States too low for brakemen, standing or walking upon ordinary boxcars, to pass under with safety, is not competent.</p> <p>SAME. — Evidence of Injury to Other Persons. — Notice to Company of Dangerous Character of Bridge. — Evidence that other persons, were previously injured by coming in contact with the bridge, while passing thereunder upon moving trains, is competent as showing notice on the part of the railroad company that the bridge was dangerous.</p> <p>Evidence.— Offer of Compromise. — Admissions.—A letter written by a plaintiff, prior to the commencement of his action, and containing admissions made simply to open the way to a compromise, or as a part of an attempted compromise, is not admissible against him.</p> <p>Same. — Physician.—Opinion as to Probable Effect of Injuries. — It is competent for an attending physician, after stating the character and condition of the injuries sued for, to give his opinion as to the probable results of such injuries, although he did not continuously attend the injured person to the time of the trial, and it is also competent to embody the facts stated by him in a hypothetical question put to another physician. Instructions to Jury.— Overhead Bridge. — Negligence.—Practice.—For a consideration of instructions touching the principles involved in an action for injuries caused by an overhead bridge, and also for a statement of rules of practice relating to the bringing of instructions into the record and their consideration on appeal, see opinion.</p> <p>Bilí, oe Exceptions. — Practice.—A bill of exceptions may properly be in the record, although the rendition of the judgment and the approval of an appeal bond intervene between the overruling of the motion for a new trial and the giving of time within which to file the bill.</p>

<p>Speciad Verdict. — Requisites of. — Practice.—In a special verdict, all facts essential to a recovery must be found, to entitle the party having the burden-of the issue to a judgment. Facts only are to be found, and conclusions of law contained therein must be disregarded.</p> <p>License. — Acquiescence.—Assumption of Risks by Licensee. — Where a person has a license to go upon the grounds or the enclosure of another, or uses such grounds with the mere acquiescence of the owner, he takes the premises as he finds them, and accepts whatever perils he thereby in- ■ curs.</p> <p>Negligence. — Liability of Owner of Land for Breach of Duty. — Implied Invitation. — Where the owner or occupant of lands, by enticement, allurement or inducement, either express or implied, causes another to come upon such lands, he assumes the obligation of providing for the safety and protection of the person so coming, and becomes liable for any breach of duty in that respect which causes injury to such person, in case such enticement, allurement or inducement amounts to an express or implied invitation, and an implied invitation may be inferred from some act or line of conduct, or from some designation or dedication.</p> <p>Same. — Statutory Obligation. — Liability for Violation of. — Railroad.-—As ageneral rule, where an obligation is imposed by a statute, it is negligence per se.to disregard the obligation thus imposed, and if injury is thereby inflicted, the party disregarding the statute is liable. This rule has peculiar application to the management of railroads and railroad trains.</p> <p>Same. — Statute Construed.— Railroad Crossings.— Liability of Companies for Failure to Repair. — Under the provisions of sections 3904 and 3905, B. S. 1881, all railroad companies interested in railroad crossings are required to co-operate in maintaining and keeping such crossings in repair, and are jointly liable for an injury resulting from a neglect to. observe such statute.</p>

<p>Deed. — Beal Estate. — Conveyance.—Mortgage.—Presumption.—The presumption is that an instrument is what it purports to be; and a deed, absolute on its face, will operate as a conveyance of the fee, unless the evidence proves it to be a mortgage.</p> <p>Same. — A deed can not be regarded as a mortgage where there was in fact a sale of the property for an agreed price, which was paid in full by the grantees, and where the property was in no possible contingency to re-vest in the grantors.</p> <p>Same. — It is not sufficient to transform a deed into a mortgage to prove that at the time it was made the parties agreed that, in the event the property should be sold for more than its agreed price, the grantors should receive such increased price.</p>

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

<p>Practice. — Oivil Action. — Preponderance of Evidence. — In civil actions a preponderance of the evidence only is necessary to establish the affirmative of an issue, whatever the nature of that issue may be.</p> <p>Bastardy. — Bules of Practice. — Oivil Action. — A prosecution for bastardy is a civil action, and the rules of practice applicable to other civil actions are applicable to it, except when a different or special procedure is provided by the statute.</p>

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

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

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

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

<p>Continuance. — Motion for. — Discretion of Court, — Practice.—A motion to postpone or continue a cause is addressed to the discretion of the trial court, and a judgment will not be reversed on account of a ruling upon such motion, unless it very clearly appears that the discretion of the court has been erroneously exercised.</p> <p>Same. — Absence of Attorney. — A judgment will not be reversed because a postponement or continuance was refused on account of the absence at the trial of the principal or only attorney, unless it is made to appear affirmatively that some real injustice was probably done by such refusal.</p> <p>Sam:e. — Agreement of Parties. — Sanction of Court. — An agreement by the parties thereto that a cause shall be postponed, does not operate as a postponement, without the sanction of the court, nor is the court bound by such an agreement.</p> <p>'Change op Venue. — Rule of Court. — As a general rule, it is not error to overrule a motion for a change of venue made after the time fixed by a rule of the court within which such motions shall be made.</p>

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

<p>Criminal Law. — Corporation in Hands of Receiver not Liable Oi-iminally for Acts qf the Latter. — Where a corporation is in the hands of a receiver, who has full possession of its property and entire charge of its affairs, such corporation can not be prosecuted for crimes or misdemeanors committed by the agents or servants of the receiver.</p>

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

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

<p>Supreme Court. — Practice.—Judgment not Reversed on Weight of Evidence. —A judgment will not be reversed on the weight of the evidence if there is evidence fairly tending to support it.</p> <p>Debtor and Creditor. — Preference of Creditors. — Husband amd Wife. — A debtor in failing circumstances has a right to prefer some of his creditors, including his wife, as against others, and such preferences will be • upheld, if untainted with fraud.</p> <p>Fraudulent Conveyance. — Husband and Wife.— When Court of Equity will not Interfere. — Where a conveyance from, husband to wife is attacked as fraudulent, a court of equity will not interfere to set it aside, where, by such action, no benefit can accrue to the creditors of the former.</p>

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

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

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

<p>Decedent’s Estate. — Proceeding by Administrator to Sell Land to Make Assets. — Resistance by Owners. — Claim.—Practice.—In a proceeding by an administrator to sell real estate to pay alleged claims against the estate, the owner or owners of the real estate have the right, in order to protect . it, to defend against the proceeding, and the claims upon theiruneritSj notwithstanding they may have been allowed by the administrator.</p>

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

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

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

<p>Decedent’s Estate.— Final Settlement.— Notice. — Jurisdiction.— Collateral Attach. — The filing of his final account by an administrator confers jurisdiction upon the court to hear all matters pertaining or incidental to-the final settlement of the estate, and where notice has been given of such filing by the, clerk, however defective in form, the action of the-court in the final settlement and distribution of the surplus can not be-attacked in a collateral proceeding.</p> <p>Same. — Distribution of Surplus to Heirs. — Practice.-—Jurisdiction oyer the subject of distribution of the surplus of an estate to the heirs results as an. incident to the final settlement, without additional notice, and while-issues may be formed upon, adverse claims growing out of distribution,, it is not essential that they should be.</p>

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

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

<p>Statute op Fbauds. — Part Payment. — Earnest Money. — Part payment of the contract-price of property bargained for is earnest-money, and will prevent the operation of the statute of frauds.</p> <p>Same. — Payment May be Made According to Contract of Parties. — Such part payment may be made not only in money, but in property or services, or whatever of value the parties agree shall constitute payment.</p>

<p>¡PeeADING.— Mortgage, Foreclosure of. — Promissory Note.— Complaint. — Demurrer. — Location of Mortgaged Premises. — "Where a complaint for foreclosure of a mortgage and for judgment on a promissory note secured thereby states a cause of action upon the note, a copy of which is set •out, an objection that the mortgage sued on does not show that the real estate, mortgaged is situate in any county in this State can not be reached by a demurrer for want of facts.</p> <p>Mortgage.— Misdesa-iption of Mortgaged Premises.— Reformation of Instniment. — Pleading.—Complaint.—"Where it is shown by the complaint that a mortgage sued on was delivered to the auditor of a county to secure a loan of the common school fund of the State, and the instrument ■shows on its face that it was signed and acknowledged in that county, by residents thereof, the true and full description of the mortgaged premises, if omitted from the mortgage, may be supplied by the aid of proper averments in the complaint.</p> <p>Married "Woman. — Tenancy by Entireties. — •Act of March 25th, 1879. — Debt of Husband. — Pleading.—Answer.—Necessary Averment. — An answer by a married woman, to a complaint to foreclose a mortgage, executed while the act of March 25th, 1879, was in force, that the mortgaged real estate was held by her and her husband as tenants by entireties, and that the debt secured was the debt of her husband, is insufficient, in the absence of an averment that she acquired her interest therein by gift, descent or devise.</p> <p>.Same. — Separate Property. — Improvement of, and Discharge of Liens Upon.— Mortgage. — Lien.—Where money is borrowed by the wife, or by the husband and wife, or by either of them, for the purpose of discharging valid liens existing on the wife’s separate property, or for a purpose which enures to its benefit 6r protection, a mortgage properly executed on her separate property may be enforced.</p>

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

<p>Appeal Bond. — Action on. — Supersedeas.—Mesne Bents and Profits. — An appeal bond, given to make operative a supersedeas order, in an appeal from a judgment declaring the appellee’s interest in an undivided portion of certain real estate, quieting her title thereto, and for a certain sum as damages, does not cover the mesne rents and profits of the appellee’s interest in such real estate, the only proceeding stayed being the execution on such judgment. .</p> <p>Bill op Exceptions. — Long-Hand Manusmpt of Evidence. — For long-hand manuscript of evidence, held to be properly in the record by bill of exceptions, see opinion.</p>

<p>Jurisdiction. — Circuit Court.— Want of Jurisdiction Matter of Defence. — The circuit court is presumed to have jurisdiction of causes it assumes to try, and want of jurisdiction is a matter of defence.</p> <p>Same. — Pleading.— Complaint. — Action Against County for Defective Bridge.— Board of Commissioners. — Claim.—A complaint in an action to recover damages from a county for personal injuries sustained by reason of a defective bridge, is not bad for failing to set out with particularity the character of the claim for such damages filed with the board of commissioners.</p> <p>Evidence. — Defective Bridge. — Knowledge of Commissioner as to Condition of Bridge. — In such an action evidence is competent to prove that one of the commissioners had notice of the condition of the bridge.</p> <p>Same. — Declarations Expressive of Suffering. — In an action for damages for personal injuries, the injured party may show in evidence declarations connected with existing suffering and expressive of it, though he may not prove.his declarations giving an account of the manner in which the injuries were received, or recounting what is past.</p>

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

<p>Criminal Law. — Plea of Guilty.— Withdrawal of Plea. — Discretion of Court. —Courts may, in their discretion, permit pleas of guilty to be withdrawn, or refuse to allow such withdrawal, and, except where there has been an abuse of such discretion, the Supreme Court will not interfere.</p> <p>Same.— Withdrawal of Plea. — Abuse of Discretion of Trial Court. — Where a prisoner, who is brought into court and arraigned on the same day an indictment is returned, being without counsel or means of employing them, and ignorant of his right to have counsel assigned him, acting in good faith upon an assurance from the prosecuting attorney that upon a plea of guilty the minimum punishment will be assessed, enters a plea of guilty, and punishment by imprisonment is thereupon adjudged against him eight years in excess of the minimum, he is entitled, upon motion made at the first opportunity thereafter, to a withdrawal of such plea, and the refusal of the court to sustain such motion is such an abuse of its discretion as will warrant the interference of the Supreme Court.</p>

<p>Fraud. — Fraudulent Intent.— Must be Proved. — Presumption.—The question of fraudulent intent is in all cases a question of fact, which can not be presumed, but when it is averred must be proved and found.</p> <p>Special Finding oe Facts. — Conclusions of Law. — Exception to Conclusion of Law Admits Correctness of Finding. — An exception to a conclusion of law, based on a special finding of facts, admits that the facts have been fully and correctly found by the trial court.</p> <p>Fraudulent Conveyance. — Conclusion of Law. — Practice.—In an action attacking a conveyance as fraudulent, when the special finding of facts by the trial court does not disclose the existence of fraud or fraudulent intent in the conveyance, the plaintiff is not entitled to a conclusion of law thereon, nor a judgment in his favor.</p>

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

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

<p>Statute. — Metropolitan Police Act of1883. — Construction.—Criminal Law. — Interfering with Policeman. — City of Indianapolis. — Ch-dinance.—By the provisions of section 10 of the metropolitan police act of 1883, the interfering with or interrupting a member of the police force therein provided for, when making an arrest, is made a criminal offence, and a city ordinance of said city covering the same ground is, under section 1640, B. S. 1881, ineffective and void.</p> <p>Constitutional Law. — Section 10, Metropolitan Police Act, Constitutional.— Title of Act. — Section 10 of the metropolitan police act of 1883 is embraced within the title of the act, and is constitutional.</p>

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

<p>Fraudulent Conveyance. — Action to Set Aside. — Good Faith Presumed.— Where a conveyance is assailed as fraudulent, good faith in the transaction is presumed, and such conveyance can not be impeached unless this presumption is overthrown.</p> <p>Same. — Evidence.—Circumstances.—Inference — S'uch presumption may be overcome by circumstances, and the evidence is sufficient for that purpose if it supplies grounds for a legitimate inference.</p>

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

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