Volume 116 — Indiana Reports

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

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

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

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

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

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

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

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

<p>Jurisdiction. — Justice of the Peace. — Judgment.—The jurisdiction of a justice of the peace in civil actions is a limited one, and in all jurisdictional matters the requirements of the statute must be substantially complied with, or his judgments will be void.</p> <p>Same. — Summons.— Sendee Upon Non-Resident.— When Justice’s Judgment Void. — Where, in an action before a justice of the peace, the defendant resides in another State and in that State endorses upon a summons— not issued or directed to any officer, but delivered to the plaintiff’s attorney by the justice — his acknowledgment of service and a waiver of jurisdiction, and the summons, so endorsed, is returned by the plaintiff’s attorney, whereupon a judgment is rendered against the defendant by default, such judgment is void, and may be so declared in a direct proceeding for that purpose. Sections 1431 and 1450, R. S. 1881, considered.</p>

<p>RAlLBOAD.-^J.mmafe. — Escape from Enclosure. — Contributory Negligence. — In an action by a land-owner against a railroad company for the value of a horse which escaped from his enclosure and was killed by the defendant’s train, the plaintiff is not guilty of contributory negligence if his fences were ordinarily and reasonably secure.</p> <p>Same. — No Presumption that Animal will Leave Track. — There is no presumption that a horse or other animal will step from the railroad track in time to avoid injury.</p> <p>Same. — Trespassing Animal. — Failure of Engineer to See. — Where an animal enters upon a railroad track at a point where the road is securely fenced, and is killed by a passing train, the railroad company, if liable at all, is not liable in the absence of proof that the engineer or fireman saw the animal.</p> <p>Same. — Failure to Heed Signs and Gestures. — Negligence.—Where there is no proof that the engineer saw the animal upon the track, it can not be said as matter of law that he was guilty of negligence because he failed to heed gestures and motions made by men along the way.</p>

<p>Cbiminai, Law. — Elections.— Voting More than Once. — Indictment.—Mistake in Charging Time of Commission of Offence. — An indictment returned No-' vember 3d, 1886, charged that the defendant, on November 4th, 1886, the same being the day upon which the general election was held in Indiana for Governor, etc., as required by law, voted more than once, by intentionally handing to the inspector two ballots at the same time and place, which ballots were placed in the ballot-box by the inspector.</p> <p>Held, that judicial notice will be taken that there was no election on November 4th, 1886, but that there was an election for Governor on November 4th, 1884, less than two years prior to the return of the indictment.</p> <p>Held, also, that the indictment shows that it relates to á past transaction, and that as the averments are repugnant and time not of the essence of the offence, the imperfection in stating the time is not cause for quashing the indictment.</p> <p>Held, also, that the indictment sufficiently charges a violation of the statute against voting more than once.</p>

<p>Criminal Law. — Return of Indictment. — Amendment of Record. — Plea, in Abatement. — Where the record does not show the return of an indictment into court it may be corrected by an entry nunc pro twnc, and a plea in abatement previously filed may then be overruled, the correction relating back to the time and being evidence of the return of the indictment.</p> <p>Same. — Misconduct of Bailiff. — Setting Aside Verdict. — Misconduct on the part of a bailiff or other person connected with a trial, which is known to and acquiesced in without objection by a party or his counsel, can not afterwards be made available as a ground for setting aside a verdict; even though it be of a character which would otherwise vitiate the verdict.</p> <p>Same. — Embezzlement.—Ownership.—Consignee. — A consignee has such a qualified ownership in the property consigned as will sustain a charge for the embezzlement of the property from the consignee as owner.</p> <p>Same. — Requisition.-—Jurisdiction.—Where an accused is returned to this State, upon a requisition, to answer a charge of embezzling money, he may be tried upon an indictment charging the embezzlement of property.</p>

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

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

<p>Railroad. — Crossing.—Signals.—Contract.—Damages. — Where a railroad company, desiring to cross the road of another company, agrees to provide proper signals at the crossing and a watchman to operate the same, and the parties to the contract afterwards agree upon a code of signals to be given by the watchman and observed by the parties, the company first mentioned is liable to the other company for damages caused by running its engine into the latter company’s train, which is proceeding over the crossing in obedience to a signal giving it the right thereto.</p> <p>Same. — Contributory Negligence. — Anticipation of Breach of Duty. — Until it appeared that there was a disregard of the signal by the defendant, the employees of the plaintiff were not guilty of negligence in failing to anticipate a breach of duty on the part of the defendant.</p> <p>Same. — Evidence.—In such case it is competent to prove by a qualified witness the difference in value between a car as it was after it was repaired and as it was before it was injured.</p> <p>Same. — Intoxication of Engineer. — In such case it is not error to admit evidence that the defendant’s engineer had been drinking intoxicating liquor.</p> <p>Same. — Expert.—Opinion.—A competent expert may give an opinion as to the distance at which it is safe to stop before going upon a crossing.</p> <p>Verdict. — Interrogatories to Jury. — A general verdict will stand as against answers to interrogatories, unless some fact fatal to a recovery is stated in such answers.</p>

<p>From the St. Joseph Circuit Court.</p>

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

<p>Deed. — Grant of Income of Land. — Effect of. — The general rule is, that the grant of the income of land carries an estate in the land itself.</p> <p>Same. — Life-Estate.—Deed Construed. — A grantor conveyed and warranted to A., B. and O., “ and Z. to have his support off of said farm during his lifetime,” certain land. After the description was the following: “ It is understood that rents and profits of this farm go to maintain my son, Z. At his death my grandchildren are to have the same in fee simple, after my death, as above stated.”</p> <p>Held, that Z. took a life-estate in the land.</p>

<p>Judgment. — Belief from. — Surprise, etc. — Complaint.—Showing of Meritorious Defence. — A complaint under section 396, R. S. 1881, to be relieved from a judgment on account of surprise, inadvertence or excusable neglect, is bad unless it shows a meritorious defence to the original action.</p> <p>Same. — Legal Remedies.--Vested Rights. — Obligation of Contracts. — Constitutional Law. — There are no vested rights in the law generally, nor in legal remedies, and changes therein by the Legislature are not within the inhibition of section 10 of article 1 of the Constitution of the United States, unless of such a character as to materially affect the obligation, of contracts.</p> <p>Same. — Review of Judgment. — Remedy May be Changed or Abolished. — The statute providing for a review of judgments merely prescribes a remedy, and this remedy the Legislature may change or take away altogether.</p> <p>Same. — Limitation of Action. — Disability.—Repeal of Statute. — The statute of 1881 (R. S. 1881, sections 615, 616), limiting the bringing of proceedings for review of judgments on account of error of law to one year after the removal of disability, repealed the prior statute allowing such proceedings to be brought within three years after the removal of disability; and all proceedings for review thereafter filed must be brought within the terms of the law of 1881, without regard to the time when the judgment was rendered.</p> <p>Same. — Dew Action After .Failure.— Statute Construed. — The provision in section 299, R. S. 1881, that if, after the commencement of an action, the plaintiff fail therein, a new action may be brought within five years, and be deemed a continuation of the first, for certain purposes, has no application to special proceedings for the review of judgments as provided by section 615.</p>

<p>Fbaudulent Conveyance. — Statute of Limitations. — Constructive Trust.— Under section 292, R. S. 1881, an action to set aside a fraudulent conveyance must be brought within six years, and the operation of the statute can not be avoided by showing that by the conveyance a constructive trust was created for the grantor’s creditors.</p> <p>Same. — Concealment of Cause of Action.— When Sufficient to Avoid Statute of Limitations. — The concealment of a cause of action, which, under section 300, R. S. 1881, will avoid the operation of the statute of limitations, must be affirmative in character, and the particular acts of concealment or misrepresentation must be set out in the pleading, together with the circumstances of the discovery, and the delay which has occurred must be shown to be consistent with diligence.</p> <p>Same. — Husband and Wife.— When Wife May Acquire Title as Against Creditors. — Where a husband’s land is encumbered by liens to the full value of his estate therein, and the wife, with money furnished by relatives and friends, has become the owner thereof by paying the claims of creditors who have acquired title by judicial sales and by conveyances from the husband and wife, and the subsequent payment of other liens, she will hold the same freed from the claims of the general creditors of her husband.</p> <p>Same. — Purchase-Money.—Payment.—Proceeds of Crops. — In such case, so far as the purchase-money was paid from the proceeds of crops raised on the land after it was conveyed to the wife, it was, in contemplation of law, paid by her, even though the husband assisted in producing the crops by managing the farm.</p> <p>Special Finding. — Silence as to Fact in Issue. — Presumption.—If the court fails to find on all the facts within the issues, it will be assumed that the party upon whom the burden of the issue in respect to the omitted fact rested, failed to produce evidence in support thereof.</p> <p>Bill oe Exceptions: — Signing.—Authentication of Evidence. — The signing of a mere skeleton bill of exceptions, which undertakes to incorporate the long-hand manuscript of the evidence by a “here insert,” does not amount to an authentication of the evidence by the court.</p>

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

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

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

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

<p>Pabtition. — Statute of IAimitaiiom. — Pleading.—The fifteen, and. not the twenty years statute of limitations is applicable to a suit in partition, and where an answer sets out the facts showing that the suit was not commenced within fifteen years from the time the right of action accrued, .it is good, although it is alleged as a conclusion that the action did not accrue within twenty years.</p> <p>Same. — Adverse Possession. — Erroneom Legal Advice. — Where the owner of an entire estate, acting under erroneous legal advice, asserts title to and conveys only an undivided half thereof, yields exclusive possession to the grantee, and voluntarily leaves other persons, who rely in good faith upon the same advice, in possession of the remaining half under an adverse claim of title, and the adverse possession so held by the grantee and the other persons is continued for moré than fifteen years, a suit for partition will be barred.</p> <p>Tbial. — Holding Game Under Advisement. — Delay.—Presumption.—When a judge holds a cause under advisement for more than sixty days without objection, the presumption will be indulged that he had a lawful excuse for the delay.</p> <p>Special Finding. — Signing.—Practice.—Where the record shows that the name signed to a special finding is not the name of the judge who presided when the finding was filed, the finding is defective, and, if not made a part of the record by an order of court or by a bill of exceptions, it will be considered only as a general finding.</p>

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

<p>Patent-Bight. — Sale of. — Statute Regulating.— Validity of. — The statute of this State (sections 6054, 6055, B. S. 1881), requiring vendors of patent-rights to file with the county clerk copies of the letters-patent, and to make an affidavit that the letters are genuine, and requiring, also, that promissory notes given for such rights shall contain the words “ given for a patent-right,” is valid.</p> <p>Same. — Statute Applies to Intangible Right. — Articles Manufactured Under Letters-Patent not Affected. — The statute mentioned applies only to the intangible right evidenced by the patent; it has no application to the tangible article manufactured under letters-patent.</p>

<p>Negligence. — Town.—Obstruction in Street. - Contributory Negligence of Third Person. — The contributory negligence of the driver and manager of a carriage will not defeat an action by one who was passively riding with him upon invitation, for personal injuries caused by the negligence of town authorities in leaving a dangerous obstruction in the street, without proper safeguards, if the person injured be himself without fault.</p> <p>Same. — General Rule. — One who sustains an injury without any fault of his own, or of some one subject to his control or direction, or with whom he is so identified in a common enterprise as to become responsible for the consequences of his acts, may look for compensation to any other person whose neglect of duty caused the injury, although the negligence of a third person, with whom he did not sustain the above relations, may have contributed thereto.</p> <p>Same.— When Negligence of Third Person is a Defence. — Before the concurrent negligence of a third person can be interposed to shield another, whose negligence has caused an injury to one who was without fault, it must appear that the injured person and the one whose negligence con • tributed to the injury sustained such a relation to each other, in respect to the matter then in progress, that in contemplation of law the negligent act of the third person was, upon the principles of agency, or cooperation in a common or joint enterprise, the act of the person injured.</p>

<p>Special Finding. — Comet Ultimate Conclusion of Law. — Erroneous Intermediate Conclusion not Available for Beversal of Judgment. — If the ultimate-conclusion of the trial court is right, upon the facts specially found, an intermediate error in stating a conclusion of law, not of controlling force, will not authorize the reversal of the judgment.</p> <p>Railroad. — Fence.—Agreement to Maintain. — Farm Crossing. — Liability for Animals Killed.- — -Where a railroad company, in consideration of the grant of a right of way through a farm, agrees to erect and maintain a safe private crossing and a secure fence, it is bound to pay for animals killed by its trains where they enter upon the track through the fault of the company in failing to fence the crossing in accordance with the contract.</p> <p>Same. — Leaving Crossing Oates Open. — Burden of Proof- — If the gates at the crossing are left open by the land-owner, or by a wrong-doer other than the railroad company, that is a matter of defence.</p>

<p>Township Trustee.— Void Promissory Notes. — Action Upon Official Bond,.— Promissory notes illegally executed by a township trustee are void in their inception. Holders are bound to know this as matter of law, and they can not maintain, an action upon the official bond of the trustee.</p>

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

<p>Family Settlement. — Decedent’s Estate. — Claims.—Payment.—Where one devisee, who holds enforceable claims against the testator’s estate, enters into a contract with another devisee, upon whose land the claims are a burden, in pursuance of which the latter pays to the former full consideration for the claims, the settlement is valid, in the absence of fraud or mistake, and the claims involved will be deemed extinguished.</p>

<p>Willi. — Devise to Township for Support of Common Sehooh. — Intention of Testator. — Where a devise is made to a township for the support of common schools, it clearly appears that the devise is to the school .township.</p> <p>Same. — Township Capable of Taking Under Will. — Trustee.—A township in this State is made by statute a distinct municipal corporation for school purposes, and it is capable of becoming a trustee to receive funds bequeathed to it lor the use of the public schools.</p> <p>Same. — Latent Ambiguity as to Devisee. — Extrinsic Evidence. — Where a testator' devises property “ to Harrison township,” and it is made to appear by evidence that there are many townships of that name in the State, it is competent, in order to remove the obscurity in the testator’s intention caused by the extraneous circumstances, to show by extrinsic evidence ■that the testator resided in Harrison township in a certain county, and that he sustained a relation to that township different from all others of like name.</p>

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

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

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

<p>City. — Explosives—Negligence.—Damages to Property of Citizen. — Liability of City. — A city is not liable for damages caused to the property of a citizen by the negligent manner in which other persons, acting under permission from the mayor, fire explosives within the city.</p> <p>Same. — Failure to Enforce or Enact Ordinances. — A municipal corporation is not liable for a negligent failure to enforce an ordinance, nor for omitting to enact ordinances.</p> <p>Same. — Liability for Act of Licensee. — A municipal corporation is not liable for the acts of its licensees unless it is shown that an act authorized was dangerous in itself.</p>

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

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

<p>Pbincipal and Agent. — Husband and, Wife. — The same principles govern dealings between a third person and an agent whose principal is his wife, as govern where the principal and agent are in other respects strangers; and one who purchases the wife’s property through the agency of the husband must pay for it precisely as if he had purchased through any other agent.</p> <p>Same. — Sale of Real Estate. — Payment.— Unauthorized Acceptance of Promissory Notes. — Where a husband, who is acting as the agent of his wife in the sale of her real estate, accepts his-own note and the note of a third person for the purchase-price, without authority to do so, the acceptance of such notes does not constitute payment, and the wife is entitled to affirm the contract and recover of the purchaser the agreed consideration.</p> <p>Same. — Presumption.—Burden of Proof. — There is no presumption that an agent, with authority to sell and accept payment for. his principal, is authorized to receive his own notes or the notes of a third person in payment, but the burden is upon the purchaser to show affirmatively that the agent had such authority.</p> <p>Same. — Statute of Limitations. — Where payment, mb modo, of an admitted indebtedness has in fact been made to the agent in such manner that the principal is entitled to affirm or repudiate it upon learning the facts, the statute of limitations does not begin to run until the facts are known or the payment disaffirmed.</p>

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

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

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

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

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

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

<p>Judgment. — By Default. — Complaint for Belief from. — Sufficiency of. — A complaint under section 396, B. S. 1881, to be relieved from a judgment alleged to have been taken through mistake, inadvertence, etc., is bad if it fails to show the nature of the cause of action on which the judgment was rendered, and such pertinent facts as make it reasonably clear that the defendant had and has a meritorious defence thereto.</p>

<p>Intoxicating Liquor. — License.—-Sale from Wagon in Public Highway. — An indictment charging the defendant with the offence of selling intoxicating liquors without a license, to be drank in and about his house, as such offence is defined in section 5320, K. S. 1881, is not supported by proof that the sale was made from an open wagon standing upon a public highway, in a county different from that in which the defendant lived and did business.</p> <p>Same. — “House " Defined. — A Wagon not a Home. — An open wagon is in no sense a house, within the meaning of the statute, as a house must be some sort of a building or enclosed structure.</p> <p>Same. — Construction of Statute. — -When the Legislature uses specific terms as to place, the courts must enforce the statute according to its terms, and can not, by judicial construction, supply legislative omissions.</p>

<p>From the St. Joseph Circuit Court.</p>

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

<p>Judgment. — By Agreement. — Broader Than Pleadings Authorize.- — A judgment by agreement will bind those by whose agreement it is entered, notwithstanding the pleadings would not, in a contested case, authorize such a judgment.</p> <p>Same. — Setting Aside. — Negligence of Judgment Defendant,- — Innocent Assignees. —A judgment by agreement will not be set aside where the judgment defendant has been guilty of laches and the rights of innocent third persons have intervened, although it is alleged that through the fraudulent representations of the judgment plaintiff the clerk entered the judgment for broader relief than was agreed upon by the parties.</p> <p>Same. — Beading in Open Gourt. — Presumption.—It will be presumed, in the absence of a showing to the contrary, that a judgment was read in open court as the law requires, before being signed by the judge, and that it is such a judgment as the judge intended should be entered.</p> <p>Same. — Mistake.—Negligence of Parties. — Innocent Persons. — As against innocent third persons, a party will be charged with negligence who fails to be in court when a judgment in which he is interested is read, or who, being in court, fails to call the attention of the court to mistakes in the entry of the judgment.</p> <p>Same. — Notice.—Order-Book Entry. — A. purchaser of land and a judgment affecting it is not required to look beyond the order-book where the judgment is entered and attested by the signature of the judge, and if nothing is disclosed to put him upon inquiry, he is an innocent purchaser.</p>

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

<p>Special Finding. — Conclusions of Law. — Supreme Court. — Practice.—Where a question is reserved upon a conclusion of law, but not upon the special finding upon which it is based, the latter will not be reviewed in the Supreme Court.</p>

<p>Decedents’ Estates. — Sale of Personalty. — Insufficient Security.- — Administrator Liable on Bond. — An administrator who negligently accepts promissory notes executed by insolvent persons, at a sale of his intestate’s personal property, is liable under section 2303, E. S. 1881, on his bond for both principal and interest, but he is entitled to have the notes turned over to him.</p>

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

<p>Will. — Construction.—Effect of Subsequent Clauses upon Devise. — Where an estate in fee simple is devised in one clause of a will in clear aud decisive terms, it can not be taken away or cut down by raising a doubt upon the meaning of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate in fee. For a will set out and construed, see opinion.</p>

<p>MoBTGAGE. — Consideration.—Contract.—Care and Attention. — V., being in ill health, was much at the house of Mrs. M., and at his request was nursed and cared for by her. In return for the services rendered and the kindness shown him he often promised her that, as a just compensation, he would, as soon as his father — who was aged and very wealthy, and from whom he had great expectations — should die, pay Mrs. M. a sufficient sum of money to remove all encumbrances from her homestead. After the death of his father, Y. paid to Mrs. M. the amount required to remove the encumbrances from her property, declaring that he intended it as a compensation for her services and kindness to him. Fearing that she might again encumber the property at the request of her husband or others, and to prevent that from being done, Y. proposed that a mortgage be executed to him for the amount paid, promising to release it when thought best, and to provide in his will for its cancellation, in case of his death. The mortgage was executed accordingly, but Y. died without having released it or provided for its cancellation. Suit by his executors to foreclose the mortgage.</p> <p>Held, that the mortgage is without consideration and can not be enforced, as the sum paid Mrs. M. was not a loan, but was the compensation for her care and services, as fixed by the valid and executed contract of the parties.</p> <p>Same. — Judgment of Parties as to Consideration. — • When Conclusive Upon Courts. —Where the thing agreed upon as the consideration for a contract has no determinate money value, the judgment of the parties as to the sufficiency of the consideration will not be disturbed or annulled by the courts.</p> <p>Sam:e. — Parol Evidence.— Conduct, Declarations and Admissions. — Parol testimony is competent to show the consideration of a mortgage, and evidence of the conduct and declarations of the parties in the course of their negotiations, and also the admissions of the mortgagee, are admissible.</p> <p>Same. — Attorney and Client. — Privileged Communications. — Where both parties are present, declarations to an attorney are' not privileged communications.</p> <p>Bill oe Exceptions. — Long-Hand Report of Evidence. — Practice.—The longhand report of the evidence taken by the court stenographer must be brought into the record by bill of exceptions.</p>

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

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

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

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

<p>Donyeksion. — Action.—Demand.—Where one appropriates the money or property of another, without the knowledge or consent of the latter, the appropriation is wrongful, and an action may be maintained for its recovery without averring or proving a demand.</p> <p>Decedents’ Estates. — Claims.—Demand.—Claims against an'estate, even though they be such as ordinarily require a demand before suit, may be filed and prosecuted without making a demand.</p> <p>Pleading. — Complaint.—Theory.—Judgment.—A complaint must proceed upon some single, definite theory, and a recovery will be upheld only when the evidence and the facts found support the case made by the complaint.</p> <p>Husband and Wiee. — Conversion of Wife’s Property. — Decedents' Estates.— Pleading. — Theory of Complaint. — Judgment.—Where a complaint against an administrator charges that the decedent, without the plaintiff’s consent or knowledge, wrongfully appropriated to his own use the proceeds of a sale of land belonging to the plaintiff, who was the decedent’s wife, it will not support a judgment if the proof shows that possession was taken with the plaintiff’s consent, but with no intention on her part to divest herself of title, although upon a complaint proceeding on a proper theory she may recover.</p>

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

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

<p>Paetnebship. — Firm Note. — Endoi'sement by Individual Partners. — A creditor who holds a note made by a firm and endorsed by the individual partners, has a valid joint obligation against the firm and at the same time a distinct, several and separate obligation against those who have signed as endorsers.</p> <p>Same. — Individual Property, — Conveyance to Firm to Secure Debt. — A conveyance of separate property, executed in good faith by a partner to secure a debt owing by him to the firm of which he is a member, is valid as against the individual creditors of the partner.</p> <p>Same. — Appointment of Receiver. — Operates as Assignment. — The appointment of a receiver for an insolvent firm operates to all intents and purposes as an assignment of the firm assets, with all the securities incident thereto, for the benefit of the firm creditors.</p> <p>Same. — Individual Properly Conveyed to Firm. — Administration by Receiver.— .Where individual partners, being indebted to the firm, convey thereto their separate property, either as payment or as security for the payment of their bona fide debts, such- property, upon the subsequent insolvency of 'the firm and the appointment of a receiver, vests in the receiver for the benefit of the creditors of the firm.</p> <p>Same. — Promissory Note. — Endorsement.—Preference of Creditor. — A creditor who loans money to a firm upon promissory notes executed by the firm and endorsed by the individual partners, without knowledge that such partners had previously conveyed to the firm their separate property to secure their debts due to the firm, is not, upon the subsequent appointment oí a receiver for the firm, entitled, as an individual creditor, to payment out of the separate property so conveyed, in preference to the creditors of the firm.</p>

<p>Common Schools. — School Lands. — Income From. — Suit to Becmier. — County Commissioners. — Attorney’s Fees.— Unlawful Diversion of Fwnds. — Liability of County. — It is the duty of the board of county commissioners to prosecute an action'against a township trustee who refuses to account for the income of land belonging to the congressional township fund, and in the discharge of that duty it is proper for such board to employ attorneys and pay reasonable fees for their services out of proper funds; but such fees can not be paid out of the moneys recovered in such proceeding, as such moneys, under the compact between the United States and the State of Indiana, and under section S of article 8 of the State Constitution, are inviolably appropriated to the inhabitants of the proper township for the use of the common schools, and for any deduction made therefrom for attorney’s fees or otherwise the county is liable, under sections 6 and 7 of the article cited, with interest from the date of diversion.</p> <p>'Same. — Judgment.—Bes Judicata. — A judgment of the board of commissioners rejecting a claim filed by a township trustee asking the board to pay into the county treasury, to the credit of the township, school funds unlawfully diverted to the payment of attorneys’ fees, is not a bar to an action by the State to compel the board to make good the amount so unlawfully diverted.</p>

<p>Dbainage. — Assessment.—Injunction.—In order that a suit to enjoin the collection- of a drainage assessment may be maintained, it is not enough that the proceedings for the establishment of the drain may be irregular and voidable, but it must be made to appear that they are absolutely void.</p> <p>Same. — Notice.—Collateral Attack. — A notice by publication, given under section 2 of the drainage act of 1875 (1 K. S. 1876, p. 428), although not exactly as the statute prescribes, yet affording some notice to the persons interested, will be deemed sufficient as against a collateral attack upon the judgment.</p> <p>Same. —Presumption as to Notice. — Where there is an entry in the proceedings before the county commissioners in effect reciting that all the notices required by the statute had been given, it will be assumed, in the absence of a showing to the contrary, that the statute was fully complied with.</p> <p>Same. — Injunction.—Acquiescence.—Estoppel.—A land-owner who stood by, with full knowledge and without objection, while a contractor expended his money in the construction of ditch allotments let to him in a proceeding instituted under the drainage act of 1875, can not, after the completion of the work and after the amount due therefor has been placed on the tax duplicate for collection, avail himself of a mere irregularity to enjoin the collection of the assessment.</p> <p>Same. — Act of 1S75. — County Commissioners. — Bight to Accept Work at Called Session. — Under section 12 of the act of 1875, the county commissioners had power to accept at a called session the work performed by a contractor, and the acceptance is conclusive, as against a suit for an injunction by a land-owner against whom an allotment was made, upon ■ the question of the completion of the work.</p> <p>Same. — Injunction.—Tender.—Offer to do Equity. — An injunction to restrain the collection of an amount charged against land in favor of a contractor who performed work under the drainage act of 1875, which work was accepted by the proper officers as completed, will not lie where something is due the contractor, unless the money equitably due is tendered and brought into court, if the amount is known, or, if the amount is uncertain, an offer to do equity is made.</p> <p>Injunction. — Ministerial Officer.- — A ministerial officer, who is lawfully engaged in executing an order made by a court having jurisdiction of the proceeding in which the order is made, can not be enjoined.</p>

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

<p>Telegbaph Company. — Negligence.—Penalty.—Under the act of 1885 a telegraph company is not liable for the penalty prescribed therein where the only wrong proved is a negligent one.</p> <p>Same. — Special Finding. — Presumption.—In an action to recover a penalty imposed by law, it can not be presumed, in aid of a special finding, that the defendant violated the law; the presumption is that the law was obeyed.</p>

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

<p>Township Trustee. — Compensation.—Overseer of Poor. — A township trustee, who has been paid two dollars per day for his services out of the township fund, is not entitled to an additional compensation, for the same time, as overseer of the poor.</p>

<p>Insubance. — Notice and P-oofs of Loss. — Pleading.—In an action on a policy of insurance, a general averment that the plaintiff has performed all the conditions of the policy on his part, dispenses with particular averments that notice was given and proofs of loss furnished to the insurer. Section 370, K. S. 1881.</p> <p>vSame. — When Notice and Proofs not Necessary. — After an insurance company has itself taken cognizance of a loss, and prepared such proofs as it deems essential to an adjustment, the insurer may assume, until notified to the contrary, that additional notice and proofs are not required.</p> <p>Same. — Agreement to Accept Less than Whole Debt.— Consideration. — Where the amount of a debt or liability is ascertained and uncontroverted, an agreement that the debtor may discharge his obligation by the payment of a sum less than the amount due, will not be enforced, unless it is supported by a new or independent consideration.</p> <p>Same.— Compromise. — In order that an executory contract growing out of a compromise may be enforced, there must have been an actual dispute founded upon a colorable right.</p> <p>Same. — Assignment.—Subsequent Contract Between Insurer and Insured. — The assignee of a policy of insurance is not bound by any agreement which the assignor may make with the insurance company, subsequent to the assignment, as to the amount which shall be accepted as a satisfaction of its liability.</p>

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

<p>Free Gravel Road. — Proceeding to Establish. — Meeting of Viewers. — Time. —Presumption.—Injunction.—Where the order of the board of commissioners, made in a proceeding to establish a free gravel road, required the viewers to meet on the 22d day of August, 1881, and the report of the viewers recites that in pursuance of the order they met “ on the — day ot August, 1881,’’ it will be presumed, in a suit to enjoin the collection of assessments, in the absence of proof to the contrary, that the viewers met on the day fixed.</p> <p>Same. — Petition.—Signing—Collateral Attack. — Where there is no affirmative showing that the petition for a free gravel road was not signed preliminarily by five interested land-owners, as required by section 5092, R. S. 1881, and where the reoorb of the proceedings before the board of commissioners recites that the petition was signed by the additional number required by section 5095, the petition in these respects will be held sufficient when questioned in a suit to enjoin the collection of assessments.</p> <p>Evidence.— Objection to. — Estoppel.—A party who himself first resorts to evidence of doubtful competency can not afterwards object to evidence of the same kind when introduced by his adversary.</p>

<p>Mortgage. — Foreclosure.—Recording.—Subsequent Purchaser. — Unless it affirmatively appears in a complaint for the foreclosure of a mortgage that a defendant claiming an interest in the mortgaged premises occupies the relation of a subsequent purchaser, an averment that the mortgage had been duly recorded is not essential. In such case the defendant must make his rights appear.</p> <p>Same. — Description.— When Land Presumed to be in this Stale. — A deed or mortgage made in the form prescribed by the law of this State, and purporting to have been acknowledged in this State, between parties residing in the State, and containing nothing to indicate a contrary intention, will be presumed to be of land in this State.</p> <p>Same. — School Fund Mortgage. — Omission of County and State from Description of Land. — Presumption.—Where both the county and State are omitted from the description of land embraced in a mortgage, but it appears on the face of the mortgage that it was executed by parties residing in a certain county in this State, for the purpose of securing a loan of school funds borrowed by the mortgagors through the auditor of that county, it will be presumed, without more, that the land is there situate.</p> <p>Same. — Purchaser from, School Fund Mortgagor. — Bound by Mortgage though not Recorded. — One who claims through a mortgagor who has given a mort- ' gage to secure school funds, is bound by the mortgage, even though it is not recorded according to' the registry acts. '</p>

<p>Fraudulent Conveyance. — Husband and Wife. — A husband may cause land to be conveyed to bimself and bis wife, thus vesting in them a joint tenancy with all its legal incidents, and such conveyance is only impeachable at the suit of creditors on the ground of fraud.</p> <p>Same.— Tenants by Hniireties. — Where the husband has property subject to execution more than sufficient to pay his debts, he is not guilty of fraud merely because be procures land owned by him to be conveyed to bimself and wife as tenants by entireties.</p> <p>Same. — Special Finding. — Fraud a Question of Fact. — Where a cause of action depends upon the establishment of fraud, the special finding made in the case must state that there was fraud. Fraud is a question of fact, and can not be presumed, or inferred as a matter of law.</p> <p>Same. — Conveyance to Put Property Beyond Beach of Creditors. — A statement in the special finding that the purpose of the parties in having tlie husband’s property, the value of which is not given, conveyed to himself and wife as tenants by entireties, was to place the property beyond tlie reach of creditors, is not in itself a finding of the fact of fraud.</p> <p>Same.— When Conveyance not Fraudulent as to Creditors. — A voluntary conveyance can not be adjudged fraudulent at the suit of creditors, where there is no actual fraud, if, at the time the conveyance was made or the suit was brought, the grantor bad property subject to execution sufficient to pay bis debts.</p> <p>Same. — Partnership.—Dissolution.—Husband and Wife. — Where a partner, ' being indebted to his wife, executes to her a promissory note, she may, upon the subsequent dissolution of the firm and division of the partnership property, subject his property to sale in satisfaction of a judgment obtained on the note, and she is entitled to the proceeds as against partnership creditors having no specific lien.</p> <p>Same. — Action to Set Conveyance Aside. — Right to Maintain. — It is the law of this State that a creditor, although he has not taken judgment, may successfully assail a fraudulent conveyance.</p> <p>Conspiracy. — To Defraud Creditors. — Sale.—Accounting May be Fkforeed.— A person who enters into a conspiracy to defraud the creditors of a co-conspirator, and who, pursuant to tlie purpose of the conspiracy, obtains a judgment and secures a sale under an execution thereon of property which of right should have gone to the creditors of the co-conspirator, may be compelled to account for the proceeds of the sale.</p>

<p>Beelevist.— Witness. — Decedent’s Estate. — Matters Affecting. — A dministratm’s Sale. — Gift.—Section 498, R. S. 1881, disqualifying certain persons to testify as to matters occurring during the lifetime of a decedent and affecting his estate, does not prohibit the plaintiff in an action of replevin, brought against a purchaser at an administrator’s sale to recover possession of a horse sold as property of the decedent, from testifying that the decedent had made him a gift of the animal.</p> <p>Same. — Evidence.—Declarations.—Des Gestee. — In such action, declarations of the decedent, made a day or two before he purchased the horse, that he intended to buy a horse for the plaintiff, and declarations made after the purchase, and while the animal was ostensibly in his possession, that he had bought the hors.e for the plaintiff, are competent as part of the res gesice.</p>

<p>Married Woman. — Mortgage.—Suretyship.—Heirs may Plead Ooverture of Mother. — Estoppel of Husband. — Under section 5119, R. S.-1881, a mortgage executed by a married woman upon her separate real estate, to secure her husband’s debt, is void as to her; and if she dies intestate, leaving children, they, being her privies, both in blood and estate, may defeat the mortgage by pleading the coverture of their mother, the same as she might if living; but the husband, who joined in the execution of the mortgage, and received the benefit thereof, is estopped from making such defence as to his interest in the real estate.</p> <p>Mitchell, J., does not concur in all the conclusions stated.</p>

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

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

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

<p>Negligence. — County.—Public Bridge. — Knowledge of Dangerous Condition. —Contributory Negligence. — One who drives upon a public bridge, knowing it to be out of repair and dangerous, and in such a condition that a prudent person might reasonably anticipate injury, is guilty of such contributory negligence as will defeat an action against the county for damages, although the bridge was being used by the public and he exercised care in going upon it.</p>

<p>Recognizance. — Execution of.— Waiver of Objection, to Prior Proceedings.— Forfeiture. — Where the circuit court, of its own volition, assuming that a debtor has committed perjury in his examination in proceedings supplementary to execution, makes an order that, in default of bail, he shall be committed to jail to answer to that charge at the next term of court, and in pursuance of the order the debtor enters into a recognizance with surety for his appearance, without in any way questioning the legality of the order, all objections thereto are waived, and its invalidity can not be set up as a defence to an action on the recognizance.</p>

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

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

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

<p>Criminar Law. — Adultery and Fornication. — Cohabitation.—To cohabit with another in a state of adultery or fornication, within the meaning of section 1991, E. S. 1881, is for a man and woman to live together in the manner of husband and wife, for some period of time.</p> <p>Same. — Evidence.—To sustain an indictment under the section mentioned, the evidence must establish cohabitation, including one or more acts of sexual intercourse. The intercourse may be inferred from proven circumstances, which raise such a presumption of guilt as to leave no reasonable doubt in that respect in the minds of the jury.</p> <p>Same. — Argument of Counsel. — Misconduct.—In his closing address to the jury the prosecuting attorney used the following language: “ Washington Jackson’s wife is broken-hearted over his conduct in connection with this woman. I know what I am talking ab.out. I have been to Greenfield, and heard the evidence before the grand jury, and I know what those people think about this case.”</p> <p>Held, that the language is improper, and the trial court having failed to instruct the jury to disregard it, the judgment of conviction must be reversed.</p>

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

<p>Supbeme Coubt.— Weight of Evidence. — Practice.—The finding of the trial court -will not be disturbed where there is evidence sustaining it.</p>

<p>a . Negligence. — Reckless Riding upon Street. — Liability of Infant — An infant who negligently, and without any contributory fault on the part of a pedestrian, rides down and injures the latter while crossing a public street, is liable in damages.</p> <p>Same. — Care Required of Foot Passengers inProssing Street: — A person about to cross a public street on foot must take proper precautions to avoid collision with horsemen or vehicles, but the degree of care required at a railroad crossing is not necessary.</p> <p>Same. — Anticipation of Injury. — Contributory Negligence. — Foot passengers have equal rights in streets with other persons, and one is not guilty of negligence who fails to anticipate, and take special precautions against, injury by persons riding or driving at an unusual and dangerous rate of speed.</p> <p>Same. — Evidence.—Amomit of Travel Upon Street. — In an action by a foot passenger to recover for injuries sustained in being run down in a public street, evidence of the large amount of travel upon the street is admissible as tending to show the impropriety of the defendant’s conduct in riding thereon at immoderate speed.</p> <p>Practice. — Objections to Evidence. — Must be Specific. — A general objection to the admission of evidence on the ground that it is “ incompetent, immaterial and irrelevant,” presents no question for decision.</p>

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

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

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

<p>Sheriff’s Sale.— TJnperfecled Bid. — Memorandum.—Be-Sale.—Under a decree of foreclosure the mortgaged land was offered by the sheriff for sale. The judgment plaintiff bid less than one-fourth the amount of his judgment, and the land was openly struck off to him. It is not' shown that the sheriff made any memorandum of the sale or issued a certificate. Subsequently the sheriff re-advertised the land and sold it to the same bidder for the full amount of his judgment.</p> <p>Held, that as it does not appear that the first sale was perfected, or that the sheriff exceeded his discretionary powers, that sale was not enforceable, and a re-sale was authorized.</p>

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

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

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

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

<p>Patented Bights. — -Validity of Statute. — The statute regulating the sale of patented rights is valid.</p> <p>Same. — Broker.—Commission.—Illegal Act of Principal. — Where a party employs a broker to procure a purchaser for patented rights, such broker, upon procuring such purchaser, is entitled to his commission whether a sale was made or not, although his principal had not complied with the statute regulating the sale of patent rights, the broker having no knowledge of any intention on the part of his employer to violate the law.</p> <p>Deposition. — Seal of Notary. — Clerlls Certificate. — Where a notary public in a foreign State, taking a deposition, omitted his seal from the certificate, but the clerk of the county, by a proper certificate, attested to the official character and signature of the notary, there is no cause for suppressing the deposition.</p> <p>Same. — Notice.— Motion to Suppress. — Practice.—Where a party accepts service of notice without objecting, he can not be heard in the Supreme Court to say that the notice was insufficient. If the notice is not sufficient to authorize the taking of the depositions of all the witnesses, there should be a motion to suppress the deposition not authorized, although the court may, without error, on a motion to suppress all, suppress the one improperly taken; but a party is entitled to this only as a matter of favor.</p> <p>Evidence.— Impeachment.— Character. — Evidence impeaching the character and reputation of a witness at the time he left his former residence, the time being reasonably near the examination — about two months before — is admissible.</p>

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

<p>Taxes. — Returning False List. — Penalty.—One who returns a false and fraudulent tax list is liable to the penalty prescribed in section 6339, B. S. 1881, and must he prosecuted in the mode therein prescribed, and not by indictment.</p>

<p>Vowjntaby Assignment. — Assignee.—Contract.— Consideration. — Waste.— Sureties. — Subrogation.—Practice.—Judgment.— Where an assignee in a voluntary assignment, without authority but in good faith, paid out of the genersl fund interest due on a mortgage on the trust estate, upon the parol agreement that if the court or general creditors refused to ratify it, the money was to be repaid, such use of the fund was a waste of the estate for which he became liable on bis bond to the general creditors, and upon payment thereof by the sureties of such assignee) they became subrogated to the rights of such creditors and the assignee, and were entitled to enforce the agreement, which was supported by sufficient consideration against the mortgagee, and for that purpose could properly be admitted as co-plaintiffs with such assignee and recover a joint judgment against such mortgagee.</p>

<p>Arbitration and Award. — Objection.—Evidence.—Objections to an award must be on the statutory grounds, and then the court may hear evidence pertinent thereto, but where there is conflicting evidence the conclusion reached will not be disturbed on appeal.</p> <p>Same. — Power of Court to Correct. — The extent of the power of the court under section 846, B. S. 1881, is to correct a miscalculation of figures that is evident upon the face of the award, considered in connection with the submission and the admissions of the parties made therein or in connection therewith, or to correct such other obvious mistakes in reference to the description of any person or thing referred to, or in respect to the matters submitted, or the form of the award, as appear upon the face of the papers.</p>

<p>Criminal IKW. — Kidnwpping.—Indictment.—An indictment for kidnapping, which charges an offence in the words of the statute or in words of equivalent meaning, is sufficient.</p> <p>Same. — Statute Construed. — The offence of kidnapping as defined by one branch of the statute, section 1915, K. S. 1881, is complete if the person is feloniously carried away from his residence, unless the act is done pursuant to some State or Federal law, and an arrest or an imprisonment not made pursuant to such laws constitutes the offence under the other branches of the statute if either is made with the felonious intention of carrying the person from his residence.</p>

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

<p>Sheriff’s Sale. — Action to Set Aside. — Inadequacy of Price. — Gross inadequacy of price, coupled with slight additional facts showing fraud irregularity, or any other circumstance which may have operated to prevent the property from bringing its fair value, will avoid a sheriff’s sale.</p> <p>Same. — Good-Faith Purchaser. — Irregularities.— Redemption. — Limitation of Action.— Waiver. — Mere irregularities, such as the failure to levy upon and exhaust the debtor’s personal property before resorting to his real estate, or the sale of his real estate in a body when it is susceptible of division and sale in parcels, will not necessarily render a sale void as against a good-faitli purchaser. Such irregularities, as a general rule, can only be taken advantage of by an execution defendant, and will be deemed waived if acquiesced in by him during the statutory period of redemption.</p> <p>Same. — Omission to Demand Sheriff’s Deed. — The mere omission of a purchaser to demand a deed from the sheriff at the expiration of the period for redemption, will not ordinarily defeat his absolute and continuous right to a conveyance after that time, where the sale has been properly made, the writ duly returned and a proper record thereof made.</p> <p>Same. — Duty of Sheriff to Sell Personalty. — Presumption.—Burden of Issue.— Where, instead of selling personal property as required by section 730, B. S. 1881, a tract of real estate worth $1,800 was levied on and sold to satisfy a balance of $20 due on a judgment, such sale is presumptively void because of unfairness and oppression, and the law imposes on the purchaser the burden of showing that he took no advantage of the want of actual notice to the owner of the sale, and that there was no concealment, mistake or misapprehension which induced the owner to omit to redeem within the statutory period.</p> <p>Same. — Equity.—Subsequent Mortgagees and Purchasers. — In such case, subsequent mortgagees and purchasers of land so sold are equitably entitled to have their lien and rights enforced after the statutory period of redemption, the law presuming that they were misled by the sheriff’s failure to perform his statutory duty.</p>

<p>Antenuptial Contbact. — Consideration.—Marriage and Belease of Marital Bights. — Descents.—Where, in contemplation of marriage, a written ante-nuptial contract was executed between the prospective husband and his intended wife, reciting such fact, and that both have been married before, have children by such marriage, and have separate estates, and the parties agreeing therein that “ thesurvivor of either shall take and hold no interest, or part of interest, by descent or otherwise, but the estate, both real and personal, shall descend to the heirs the same as it would if they had not married,” the marriage and release of all marital rights or interest in the others property constituted a valuable and sufficient consideration to support the contract, and the survivor (the widow) is barred from claiming any interest by descent or otherwise in the other’s estate.</p> <p>Same. — Consideration, to Wife. — In sucli case it is not necessary that the consideration should equal the dower right of a wife.</p> <p>Same. — Consideration Fixed, by Parties. — In the absence of fraud or mistake, the consideration fixed by the parties to a contract will be deemed sufficient.</p> <p>Same. — Impeachment by Lapse of Time. — The fact that the promise to marry was made six years before the antenuptial contract was executed will not impeach the consideration of the contract.</p> <p>Same. — “Heir ” of Husband. — In such case, the fact that the husband died leaving no lineal descendant will not entitle the wife to any interest in his estate as “heir” or otherwise.</p> <p>Same. — Destroyed Contract. — Secondary Evidence. — Evidence tending to show that an antenuptial contract once existed, and that it was destroyed by a party thereto, is sufficient to let in secondary evidence.</p> <p>Witness. — Discretion of Court. — It is within the discretion of the trial court to hear the testimony of a witness although not offered until after the evidence had been closed.</p>

<p>Negligence. — Injury Resulting in Death. — Implied Damage. — Defective Machinery. — The law will imply pecuniary loss in some amount to the wife and child, by the death of the husband and father, who was, at the time, employed and presumably receiving wages, and, therefore, able to discharge his obligation to support them; and a complaint, showing these facts, and that his death was caused by defective machinery owned and used by his employer, a railroad company, is sufficient.</p> <p>Same. — Injury on Sunday. — Recovery for. — The fact that decedent received the injury on Sunday while engaged in common labor will not prevent a recovery therefor.</p> <p>Special Verdict. — Instructions.—Practice.—Where the jury are required to return a special verdict, general instructions upon the law of the case are not proper, and error predicated upon the giving or refusal to give such instructions is not available.</p> <p>Same. — Defects.—How Reached. — Where the jury return a special verdict, the failure to find as to any facts in issue is not ground for a venire de now. Courts will assume a failure of proof as to the facts not found, on such motion, though such omission might be ground for a new trial.</p> <p>Evidence.— Res Gestee. — Declarations.—Declarations of a decedent made within two minutes after the injury was sustained, while he remained in the presence of the train and the defective machinery causing the injury', are admissible as part of the res gestee.</p>

<p>Eminent Domain.— Railroad Crossings. — Condemnation Proceedings. — Instrument of Appropriation. — Pleading.—In proceedings hy one railroad company to condemn and appropriate a right of way across the tracks of another, under subdivisions 5 and 6 of section 3903, R. S. 1881, the complaint ór instrument of appropriation set forth the effort to reach an agreement as follows: “ Having located the line and route of its said proposed extension of road over the lands and premises hereinafter described, and having attempted and failed, and being unable to agree with respondent in regard to the terms of, or in regard to the compensation therefor,” the plaintiff did take and appropriate said way.</p> <p>Held, that the effort to agree must be made on the three points: Compensation, points of crossing, and manner of crossing and connections, and such effort is a condition precedent to the exercise of the power to appropriate.</p> <p>Held, also, that the instrument of appropriation must affirmatively show the agreement, or failure to agree, on each of these three points, and was, therefore, insufficient in this case.</p> <p>Held, also, that the word “ terms,” as used in the instrument of appropriation, is not broad enough to cover the three essential points.</p> <p>Same.— Waiver. — Pleading.—There may be a waiver of an agreement, or of an effort to agree, but such waiver should be directly averred.</p> <p>Same. — Appeal as Waiver. — An appeal is not a waiver of any objection seasonably and appropriately made.</p> <p>Same. — Qucere.—Does the statute confer the right upon a railroad corporation to appropriate and condemn a longitudinal part of the right of way of an existing railroad company ?</p> <p>Same. — Nature of Givil Action. — Condemnation proceedings are not in the strict sense an ordinary civil action.</p> <p>Statutory Construction. — Where the meaning of a statute is not clear courts will so construe it as to promote equity and justice.</p>