Volume 117 — Indiana Reports

<p>Notice. — Due Process of Law. — Individual Property Sights. — A statute conferring upon a tribunal power to finally dispose of the property rights of an individual, and failing to provide for notice, denies to the citizen due process of law, and is unconstitutional.</p> <p>Taxation. — Board of Equalization. — Authority to Change Valuation of Individual Property. — Notice.— Unconstitutional Statute. — The statute of this State assuming to confer authority upon the county board of equalization to conclusively change the valuation placed upon property by an individual taxpayer and to add property to his list, does not provide for notice, and is unconstitutional.</p> <p>Same. — Notice to Public not Notice to Individual. — A general notice to the public, by publication or posting, of the time, place and purpose of the meeting of the board of equalization, is not such notice to an individual taxpayer as is required to authorize a change in the valuation of his property.</p> <p>Same.— Unauthorized Notice not Effective. — The fact that the taxpayer actually has notice of the proceeding is not sufficient to authorize a disposition of his individual property rights, as notice must be given under a statute providing for it, or it will be unavailing.</p>

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

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

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

<p>Appeal. — Judgment of Supreme Court. — Second Appeal. — Questions which were open to dispute, and which were either expressly or by necessary implication decided on the first appeal of a cause, are not open for review on a second appeal.</p> <p>Same. — Reversal of Cause. — Docketing in Trial Court. — Presumption.—Where an opinion of the Supreme Court reversing a judgment of the trial court is filed in the latter court during term-time, the case stands continued by force of section 660, R. S. 1881, until the next term, and, in the absence of a showing to the contrary, it will be presumed that it was regularly docketed and stood for trial at that term.</p> <p>Sam is. — Pleading.—Right to File in Reversed Cause. — Where a defendant stands by an answer to which a demurrer has been sustained, and appeals to the Supreme Court, where the ruling of the trial court on the answer is sustained, but tlie judgment is reversed for error i'n the assessment of damages merely, and a reassessment is ordered, he is not entitled, when the cause is again docketed in the trial court, to file an answer denying the allegations of the complaint, without a showing as in other cases of default.</p> <p>Same. — Judgment for More than Demand. — Amendment.—If judgment is given for a sum larger than that demanded in the complaint, the injured party must ask the trial court to correct it, and if he fails to do so, the complaint will be treated on appeal as having been amended.</p> <p>New Tbeae. — Excessive Damages. — Practice.—An assignment as a cause for a new trial that the damages are excessive, does not call in question the amount of the recovery in an action on contract, that assignment being applicable only in cases of tort.</p>

<p>Supreme Court. — Reversal of Judgment. — Failure of Proof. — A judgment will be reversed where there is an entire failure of proof as to a fact essential to the support of the action.</p> <p>Judgment. — Payment by Conveyance of Properly. — Rights of Sureties. — Where a judgment surety has become the owner of the judgment, and after-wards takes a conveyance, importing a money consideration, of real estate from his principal, an order of the court, made at the suit of a co-surety, declaring the judgment satisfied, will not be sustained unless it is shown that the property so conveyed by the principal was in payment of the judgment.</p> <p>Same. — Conveyance of Property to Surety. — Satisfaction as to Co-Surety. — Where a principal judgment debtor conveys to a surety, who has become the owner of the judgment by assignment, real estate upon which the judgment is a lien, in consideration of the payment by the surety of liens prior to the judgment, the judgment can not be declared satisfied as to a co-surety beyond the one-half of the value of the property in excess of the amount of the liens which-the grantee agreed to-pay.</p>

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

<p>Decedents’ Estates. — Final Settlement. — Jurisdiction to Set Aside. — The circuit courts have jurisdiction to set aside final settlements of administrators for fraud, mistake or illegality.</p> <p>Same. — Proceeding to Set Aside. — Remedial Statute. — Statutes providing for the setting aside of such settlements are remedial, and proceedings for that purpose must he prosecuted under the statute in force at the time they are commenced.</p> <p>Same. — Attorney Fees. — Administrator not Entitled to. — An allowance of attorney fees to an administrator for his personal services as an attorney in the settlement of an estate, is prohibited by sections 2396 and 2398, B. S. 1881, and, if made, constitutes an “ illegality ” for which the settlement may be set aside, within the meaning of section 2403.</p> <p>Same. — Eoidence.—Where a sum has been allowed to an administrator for his services as such and as an attorney, it is proper, in a proceeding to set the settlement aside, for the court to hear evidence as to the value of the services rendered as administrator, in order to ascertain the amount allowed as attorney fees.</p> <p>Same. — Administrator’s Allowance. — In making an allowance to an administrator for his services, the nature of the estate, the difficulties attending the recovery of the assets, the peculiar qualifications of the administrator, the advantage to the estate from such qualifications, and all other facts and circumstances which will enable the court to come to a proper conclusion, should be considered.</p>

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

<p>Subrogation. — Surety.—Sheriff’s Sale. — Redemption.—Innocent Purchasers.— Where a surety permits a judgment to be taken against him as a joint principal, and stands by until other persons, without notice of his rights other than that afforded by the record, have acquired title to the principal’s property through the foreclosure of a prior mortgage, and have made valuable improvements thereon, he can not afterwards, having paid the judgment, establish his: suretyship as against the good faith purchasers and be subrogated to the right of the judgment creditor; who was not a party to the foreclosure proceedings, to redeem from the sale thereunder.</p>

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

<p>Mortoage. — To Indemnify Endorser. — Married Woman. — Inchoate Interest.— "Where a married woman has joined her husband in the execution of a mortgage on his real estate to indemnify an endorser upon the note of her husband, or of him and others, she may, in a suit to foreclose the mortgage, avail herself of any valid legal or equitable defence to protect her inchoate interest in the real estate.</p> <p>Same. — Promissory Note. — Alteration.-—Extension of Time of Payment. — Release of Wife’s Inchoate Interest. — Where, after the execution of an indemnifying mortgage by a husband and wife to secure an endorser for the husband and others, the note upon which the mortgagee is endorser is, with his consent, but without the consent of the wife, so changed that one of the makers is released from liability, the inchoate interest of the wife is fully discharged from the lien of the mortgage; but the mere extension of the time of payment for a definite time and for a valuable consideration, all the parties to the note, including the indorser, consenting, will not have that effect.</p> <p>Samis. — Disability of Married, Woman. — Eoxeutoiy Contract. — Under the law of this State, as it was in 1877, a married woman could not bind herself by an executory contract, and hence a provision in a mortgage in which she joined, that “ the mortgagors expressly agree to pay the sum of money above secured and hold the mortgagee harmless therefrom,” was not binding upon her.</p> <p>Same. — Statute of Limitations. — Where a mortgage in suit contains an express agreement by the mortgagor to pay the sum of money secured thereby, an answer setting up the six years clause of the statute of limitations in bar of the suit, is bad on demurrer for the want of facts.</p>

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

<p>Shekiff’s Sale.— Venditioni Exponas by Bedemptioner. — Mortgage.— Wife’s Bights. — Where a judgment creditor redeems from a sale of a husband’s property made under the foreclosure of a prior mortgage, in which the wife joined, and afterwards procures a sale to be made under his judgment on a venditioni exponas, and obtains a sheriff’s deed to the property under the latter sale, the wife is not entitled to have one-third of the property set off to her as contemplated by section 2508, B. S. 1881, but the last sale is to be regarded, under section 773, as having been made upon the original decree, and the title acquired thereunder relates back to the date of the mortgage.</p>

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

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

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

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

<p>County Commissioner.— Term of Office. — Act of 1885. — C. was elected county commissioner in 1884. The regular term in the district for which he was elected expired in December of that year, but by reason of confusion which had resulted from the resignation of a prior commissioner, C.’s predecessor held until December, 1885, when C. entered upon his official duties. H. was elected to the same office in 1886, and claims that he was entitled to possession in December, 1887.</p> <p>Held, that C.’s right to hold did not terminate in December, 1887, but that, under the act of March 7th, 1885 (Acts of 1885, p. 69), he is entitled to hold until December, 1890, the end of the current term.</p>

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

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

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

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

<p>Biel of Exceptions. — Failure to State that it Contains all the Fmdence.— Supreme Court. — Practice.—Where a bill of exceptions does not contain the statement, “ this is all the evidence given in the cause,” or equivalent words, questions which depend upon the evidence will not be considered.</p>

<p>Justice oe Peace. — Jurisdiction.—Appearance.— Warner. — A party who appears before a justice of the peace and participates in a trial before him, can not object in the Supreme Court, for the first time, that the justice had no authority to try the case.</p> <p>Same. — Appeal.—Reduction of Judgment. — Costs.—Where judgment is rendered for seventy dollars before a justice of the peace, and on appeal the circuit court adjudges that the plaintiff is entitled to recover fifty dollars tendered by the defendant, “ and the sum of twenty-two dollars,” there is no reduction of the judgment of the justice and the defendant is not entitled to costs.</p>

<p>Decedent’s Estate. — Estate of a Deceased Administrator. — Causes for which Suit against Can be Maintained. — The estate of a deceased administrator can not be subjected to the costs of a suit, unless the administrator had neglected some duty, or unless he had been guilty of some default, for which a. suit might have been maintained against him had he lived.</p> <p>Same. — Bond of Deceased Administrator. — Suit Upon. — Suit can be maintained on the bond of a deceased administrator for the violation of any of the duties of his trust. Section 2458, R. S. 1881.</p> <p>Same. — Settlement of Trust by Administrator. — It is the duty of the executor or administrator to take possession of trust funds which remain in the hands of the decedent at the date of his death, and to settle his accounts in relation to the trust. The administrator or executor is not bound to proceed to the execution of the trust, but must preserve the fund for those entitled, and must pay it over to them, or to some one duly authorized to receive it, under the order of the proper court.</p> <p>Same. — Pleading.—Complaint against an Estate.— What it Must Contain. — A complaint against an estate need not be technically formal, but it must state the facts essential to show that the estate is liable under the statute.</p>

<p>Promissory Note. — Judgment.—Assignment.—Endorser.—Where the payee of a promissory note obtains a judgment thereon against the makers,which he assigns, he can not afterwards maintain an action on the note against an accommodation endorser.</p> <p>Same.— Who Prima Facie an Endorser. — Where the name of one not the payee is written on the back of a negotiable promissory note, his situation is prima facie that of an endorser, and the payee is bound to take notice of his rights as such.</p> <p>Same. — Pelease of Endorser. — Redemption.—Contract.—Statute of Frauds.— Where a creditor bids in the property of the debtor at a sale under a mortgage, and induces the latter not to redeem by promising to take a sheriff’s deed and hold the land, which is of value sufficient to satisfy both his claim and the mortgage debt, as a security for the payment of his claim, but violates his contract, he can not afterwards maintain an action against a surety. Such a contract is not within the statute of frauds.</p> <p>Attobney and Client. — Negligence.—Damages.—Where an attorney negligently fails to take judgment against himself as endorser of a promissory note which he is employed to collect, he is liable to his client for the damages sustained by him.</p> <p>Same. — Burden of Proof. — The burden is upon an attorney sued for negligence to show that the judgment taken by him was sufficient to protect his client, and to do this he must show that the property of the persons against whom judgment was taken was unencumbered by prior liens, or that the client, by assignment, obtained the full value of his claim.</p> <p>Same. — Taking Judgment. — Diligence.-~An attorney who can, by the exercise of reasonable skill and diligence, obtain judgment before the debt- or’s property is encumbered, is bound to do so, and- the failure of the client to redeem from liens which, through his negligence, are prior to the judgment, will not release him from liability.</p>

<p>Partnership. — Sale by One Partner to Another. — Agreement to Pay Firm, Debts. — A sale by one partner to another of his interest in the firm property, the purchasing partner agreeing in consideration of the transfer to pay the firm debts, vests title in the latter, in the absence of fraud, and he becomes individually liable to the partnership creditors.</p> <p>Exemption prom Execution. — Partnership Property. — Severance of Interest. —A partner is not entitled to claim firm property as exempt from execution, but if a severance takes place, or if one partner becomes the owner of the whole of the partnership property by purchase from his co-partner, then an exemption may be claimed.</p> <p>Same.— When Severance May Take Place. — Partners, acting in good faith, have a right to sever their joint interest in the firm property by contract of sale from one partner to another, or by a division of the property between them,at any time before the firm creditors obtain a lien thereon, and thereafter claim an exemption from execution, although at the time of the severance the firm be insolvent.</p> <p>Witness. — Emmination of. — Leading Questions. — Unless it appears that the trial court abused its discretion in allowing leading questions to be put to a witness, a judgment will not be reversed on that account.</p>

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

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

<p>Special Finding. — Exception to Conclusions of Law. — Admission as to Facts. —A party, by excepting to conclusions of law drawn by the court from a special finding of facts, admits that the finding is full and correct.</p> <p>Same. — Pleading.—Supreme Court. — Practice.—Where a plaintiff’s case must stand or fall by the facts specially found by the court, and admitted to be correctly found, an alleged error in overruling a demurrer to an answer will not be considered on appeal.</p> <p>Township. — Highway.—Illegal Expenditures by Trustee. — Reimbursement of Township by County. — Action on Trustees Bond. — Although the acts of a township trustee in laying out a highway and building a bridge thereon are negligent and illegal, yet if, after the work is done, the county commissioners donate funds from the county treasury which fully reimburse the township for all expenditures in opening the highway and building the bridge, no action can be maintained by the township on the trustee’s bond.</p>

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

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

<p>Judicial Sale. — Personal Property. — Title Taken, by Purchaser— The purchaser of personal property at a sale under execution takes only the title and interest of the judgment debtor.</p> <p>Same. — Defective Title. — Liability of Sheriff. — There is no warranty in judicial sales, and if the sheriff sells personal property in good faith, he is not responsible to the purchaser for any defect in the title.</p> <p>Same. — Liability of Execution Plaintiff. — Representation of Deputy Sheriff.— Representations by a deputy sheriff at the time of selling personal property that the title is good, will not render the execution plaintiff liable to a purchaser, upon a failure of title, unless the representations were-made by his procurement.</p> <p>Same. — Sheriff’s Liability for Representation of Deputy. — A sheriff is not liable to a purchaser, on account of representations made by his deputy as to title, where the statements are made in good faith in the belief that they are true, as in such case there is no fraud.</p> <p>Same. — Duly and Authority of Deputy. — Statements made by a deputy sheriff concerning the title to property offered for sale on execution, are outside of his duty and authority.</p> <p>PLEADlNG. — Amended Complaint. — Refusal of Leave to File. — It is not error , on the part of the trial court to refuse leave to a plaintiff to file an amended complaint, after all the evidence has been introduced, which involves an entire change in the theory of the plaintiff’s case.</p>

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

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

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

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

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

<p>Pleading. — Demurrer.—Sufficiency of. — A demurrer to a complaint, alleging for tbe reason thereof “ that the petition does not state facts sufficient to constitute a good and sufficient petition,” does not set forth any statutory cause for demurrer.</p> <p>Voluntary Assignment. — Preferred Creditors. — Deed Void in Part.— Where a deed of assignment purports on its face to convey to the assignee all of the assignor’s property, for the benefit of all of his creditors, and certain creditors are preferred therein, the provision as to the preferred creditors is void, but the deed will be upheld as constituting a valid statutory assignment.</p>

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

<p>Drainage. — Act of 18SS. — Lien of Assessment. — Pnor Mortgage-The lien of a drainage assessment levied under the act of 1883 (Acts of 1883, p. 173) is junior to the lien of a pre-existing mortgage.</p> <p>Same. — Personal Liability of Land-Owner. — The drainage act of 1883 does not create a personal liability against the land-owner, but the enforcement of the assessment is confined to the land.</p> <p>Mortgage. — Resort to Properly Plot Embraced in. — Junior Lien-Holder.— A mortgagee holding a lien on a single tract of land can not be compelled by a junior lien-holder to resort to property not embraced in his mortgage.</p>

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

<p>Descent. — Husband and Wife. — Adulterous Husband. — Judicial Sale of Husband’s Land. — Estate Acquired by Wife Thereunder. — Under section 2497, E. S. 1881, a husband who is living in adultery at the time of his wife’s death can take no part of her estate; and so, where she dies seized of land acquired by force of the act of 1875, relating to judicial sales of the husband’s property, he is entitled to no interest therein, notwithstanding the provision in said act that land so acquired by a wife shall descend to the husband, as that provision must be construed to mean that he may take when capable of taking.</p>

<p>Injunction. — Lawful Business. — Nwisance.—In order that a person may be restrained by injunction from commencing the operation of a business in itself legitimate, it must appear that the defendant threatens and intends to conduct the business in a manner which will constitute a nuisance.</p> <p>Same. — Blacksmith Shop. — Complaint by Adjacent Proprietor. — Presumption that Business udll be Properly Conducted. — -The business of blacksmithing and horse-shoeing is lawful and not in itself a nuisance, and the presumption is that one about to engage therein will conduct the same in a proper manner; therefore, a complaint for injunction alleging that the defendant is constructing a building on his lot adjacent to thfe plaintiff’s residence for the purpose of carrying on such business, is bad if it fails to aver as a fact that the defendant threatens or intends to conduct the same improperly, or that it can not be conducted at such place without material injury to the plaintiff.</p>

<p>Railroad. — Negligence.—Defective Bridge. — Continuing in Service with Knowledge of. — Assumption of Rish — One in the service of a railroad company in the capacity of baggage-master, assumes the increased risk resulting from an insufficient bridge on the line of road over which he runs, and waives any claim upon the employer for damages, if he has notice of its dangerous character and thereafter voluntarily continues in the service.</p> <p>Same. — Complaint.—Allegation that Employee was Ignorant of Danger. — A complaint against a railroad company seeking to recover for the death of an employee, caused by the fall of a bridge beneath the train on which he was employed, which it is alleged the defendant had permitted to become unsafe, is bad unless it is averred that the intestate was ignorant of the unsafe condition of the bridge.</p>

<p>New Trial. — As of Right. — Notice.—The failure of a party obtaining a new trial as of right, under section 1064, R. S. 1881, to give the notice to the opposite party required by section 1065, is not ground for vacating the order granting the new trial.</p> <p>Swamp Lands. — Patent.—Custodian of Records. — Copies.—Evidence.—Section 5628, R. S. 1881, makes the auditor of state the custodian of swamp land records, and a copy of letters-patent, properly authenticated by him, is, under section 462, admissible in evidence.</p> <p>Same. — Presumption that Officer Does Phis Duly. — Courts take knowledge that the secretary of state was required by statute to record letters-patent for swamp lands, and that the custody of such records was transferred from the secretary to the auditor of state, and, in the absence of a showing to the contrary, it will be presumed that patents were duly recorded, and that the records were turned over to the auditor.</p> <p>Same. — Designation and Certification of Records. — Evidence.—The books in which the secretary of state recorded patents were not required to be designated on the outside as records of patents, nor was the secretary required to attach any certificate to the same, and evidence that a book from which a copy of a patent was made was lacking in these respects was properly excluded.</p> <p>Same. — Recording of Patent. — Swamp land patents issued by the State are not required to be recorded in the county where the land is situate, but they are to be recorded in the office of the secretary of state, and the title of the act providing for such record is broad enough to cover this provision.</p> <p>Same. — Title.—Proof.—Common Source. — Where a plaintiff and defendant claim land in controversy through a common source of title, it is sufficient for the plaintiff to deduce his title from the common source.</p> <p>Evidence. — Estoppel.—Practice.—A party who secures a ruling excluding evidence offered by his adversary on a particular subject can not complain of the exclusion of evidence offered by himself to establish the opposite of what the other party had attempted to prove.</p>

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

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

<p>Exemption from Execution. — Becoming a Householder After Levy. — Bight to Claim Exemption. — A judgment was obtained against an unmarried man, who was not a householder. His property was levied upon under an execution issued on the judgment, and advertised for sale. Between the date of the levy and the date fixed for the sale, the debtor married and became a bona fide householder, and claimed the property, which was of less value than six hundred dollars, as exempt.</p> <p>Held, that the exemption should have been allowed, and its denial entitled the debtor to enjoin the sale.</p>

<p>Appeal Bond. — Landlord and Tenant. — Accruing Lents. — Liability of Obligors. —A bond executed in taking an appeal from a judgment of a justice of the peace awarding the plaintiff the possession of real estate and damages for its detention, covers rents accruing pending the appeal, whether it purports to do so or not (sections 5236 and 1221, R. S. 1881); and the fact that the appeal is dismissed in the circuit court, without a judgment being taken, does not affect the liability of the obligors.</p>

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

<p>Evidence. —Deed.—Secondary JSiridence of Contents. — A proper foundation must be laid before secondary evidence of the contents of a deed is admissible.</p> <p>County Recorder. — •Negligence.—Nominal Damages. — A recorder of deeds who is guilty of a breach of duty is liable only for nominal damages, unless the plaintiff proves an actual loss.</p> <p>Same. — IdaMlity to Lien-Holder. — Where a recorder negligently so records a deed, reserving a lien, as to make the amount of the lien two hundred dollars when it should be five hundred, he is not liable beyond nominal damages, unless the plaintiff proves that he can not collect the full amount of the lien from the person who assumed its payment.</p>

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

<p>Real Estate. — Contract to Convey. — Specific Performance. — Demand.—Where one who has contracted to convey real estate repudiates the contract, or denies the right of the other to receive a deed, a demand for a conveyance is not necessary before a suit to enforce specific performance.</p> <p>Same. — Defendant not Required to Make Demand. — A party who is brought into court as a defendant and challenged to litigate matters in controversy, is not required to make a demand which might be necessary if he were the moving party.</p> <p>Same. — Tenant in Common. — Right to Specific Performance by Co- Tenant. — One tenant in common, who has become the owner by assignment of a title bond executed by himself and his co-tenant, may, upon performing the conditions of the bond, enforce specific performance of the contract to convey against his co-tenant.</p>

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

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

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

<p>Assault and Battery. — Complaint for Damages.— Venue. — A complaint for damages for assault and battery need not state tbe county in which the assault was committed.-</p>

<p>School Fund Mortgage. — Sale.—In/jumction.—Secret Vendor’s Lien. — Negligence of Auditor. — A complaint to enjoin a sale of land by a county auditor to satisfy a school fund mortgage, which shows that the plaintiff, after the mortgage was executed, purchased the land under the foreclosure of a secret vendor’s lien antedating the mortgage, and alleges that the plaintiff, at the time the mortgage was executed, held a judgment against the mortgagor, but makes no claim of title under that judgment, and alleges further that the auditor in taking the mortgage failed to require an oath of the mortgagor, and a certificate of the clerk and recorder, tliat the land was unincumbered, and also failed to have the property appraised, as provided by law, is not sufficient to entitle the plaintiff to an injunction or to avoid the mortgage. For the complaint in full, see opinion.</p>

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

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

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

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

<p>Criminal Law. — .ássaiíB and Battery — House of Public Entertainment.— Liquor Shop'. — A shop for the sale of intoxicating liquors is, in a sense, a house of public entertainment, and if the proprietor strikes one whom he has ordered from his premises, and who is guilty of no misconduct justifying his forcible expulsion, he is guilty of assault and battery.</p>

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

<p>Pleading. — Answer.—Oi-oss- Complaint. — A pleading, though denominated 'an answer, will be regarded as a cross-complaint if facts are alleged therein which authorize the granting of affirmative relief.</p> <p>Res Adjtjbicata. — An adjudication once had between the parties bars all future litigation, not only as to what has been actually litigated and determined, but as to all matters within the issues that might have been litigated and determined'in the action.</p> <p>Same. — Merger.—Where the gravamen of the action is one entire, indivisible contract or wrong, the doctrine of merger applies, and when the action is once brought, tried and determined, all causes of complaint are forever cut off, whether embraced within the issues or not.</p>

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

<p>Conveyance. — Pending Proceedings to Condemn. — Grantee Ehititled to Damages Awarded. — Parol Reservation. — Evidence.—A purchaser, to whom city lots are conveyed by warranty deed while a proceeding to condemn a portion thereof for street purposes is pending, is entitled to recover from the grantor any damages that may be awarded in the latter’s name, and paid to him by the city by reason of the condemnation, and the grantor will not be permitted to prove by parol that he reserved the damages at a date prior to the execution of the deed.</p>

<p>Appeal. — Time.—Statutory Limitation. — Fraud of Appellee Preventing Appeal. —An appeal can not be taken after the time limited by statute, unless the fraud of the appellee or his counsel prevented it from being perfected within the proper time, in which case the Supreme Court, by virtue of its inherent power, may grant an appeal upon a proper application.</p>

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

<p>Quieting Title. — Defences Provable Under General Denials — Special Answers. —Demurrer.—Practice.—In suits to quiet title all matters of defence may be proved under the general denial, and hence there is no available error in sustaining a demurrer to special paragraphs of answer, although good.</p> <p>Same. — Adverse Possession.— Fraud. — Damages.— Statute of Limitations.— "Where one went into possession of real estate in 1852, claiming title and holding exclusive possession until 1885, when he conveyed to another, any right which one claiming to he the original owner may have had to quiet title, or for damages for obtaining a fraudulent deed, is barred by the statute of limitations.</p> <p>Supreme Court. — Failure of Fkidence. — Reversal of Judgment. — Practice.— A judgment will be reversed and a new trial granted if there is a failure of evidence upon any material point.</p>

<p>Contract. — Account Accruing Under. — Bight to Sue Upon. — A party is not bound to sue for the breach of a written contract, hut he may sue upon an account accruing thereunder.</p> <p>Practice. — Admission of Evidence. — New Trial. — Supreme Court. — Where the admission or rejection of evidence is not made a cause for a new trial, no question in relation thereto is presented on appeal.</p> <p>Instructions to Jury. — Supreme Court. — Practice.—Where the instructions given are not all in the record, a judgment will not be reversed on account of those which are in the record, although inaccuracies appear therein, unless they are so palpably erroneous that no supposable instructions could cure them.</p> <p>Same. — Joint Objection to. — If two appellants jointly object to instructions given, the judgment will not he reversed if the instructions are only erroneous as to one.</p>

<p>Will;. — Implied Trust. — Illegitimate Children. — Where property is devised to a wife “ to use and dispose of as she may think best for herself and my children,” she takes it charged with an implied trust for the use of herself and the testator’s children; and the word “ children ” will be held to mean the testator’s illegitimate children by the devisee, to the exclusion of his legitimate children by a former wife, when the circumstances show such to have been his intention.</p>

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

<p>Replevin. — Property in Sands of Assignee. — Jurisdiction.—One against whom a proceeding in replevin is brought in the superior court of a county can not, while failing to deny the allegation of the plaintiff’s ownership and his own unlawful detention, oust the jurisdiction of that court by asserting that he holds the property solely in the capacity of assignee under the voluntary assignment law, and must be sued in the circuit court.</p> <p>Sale. — Contract.—Personal Property. — Selection.—Delivery.— Vesting of Title. —Bailment.—Where the contract for the sale of lumber, of a certain quality and designated dimensions, provides that the seller shall saw the same and pile it on sticks in his yard, subject to the order of the purchaser at any time, who is to pay for it when put on sticks, the seller agreeing to load it on cars when ordered by the purchaser, and in pursuance of the contract the timber is sawed, the lumber selected and put on sticks in the seller’s yard, and paid for by the purchaser as invoices are rendered, the title thereby passes to the latter, and in subsequently loading the lumber upon the cars when ordered by the purchaser the seller acts as bailee, and not as owner.</p> <p>Same. — Setting Apart Too Much. — Rights of Purchaser.— Voluntary Assignment. —Tide of Assignee. — Replevin.—If, in making the selection of the lumber according to the contract, the vendor sets apart more than is called fpr by the agreement, and notifies the vendee that it is so set apart and subject to his order, there is a good delivery, and the title passes as to the quantity purchased, and the vendee has the right to take that much and refuse the balance; and if, before the property has been removed by the purchaser, but after it has been ordered shipped, the vendor makes an assignment of all his property for the benefit of creditors, the assignee acquires no title to such property, and the purchaser máy maintain replevin.</p> <p>Same . — Postponing of Title. — Insurance by Bailee.-A stipulation in the contract that the seller should obtain insurance upon the lumber while in his yard, and be responsible for any loss which might occur prior to the delivery on the cars, does not postpone the vesting of the title, the seller, as bailee, having an insurable interest.</p>

<p>Receiver. — Property in Possession. — Conversion.—Right to Sue for. — A receiver has such a special or qualified interest in property of which he obtains possession in pursuance of an order of court as entitles him to maintain an action for its wrongful taking and conversion.</p> <p>Same. — Property not in Possession. — A receiver can not maintain an action for the conversion of property of which he has never acquired possession, and as to which he does not show himself entitled to possession, beyond an averment that he was directed by the court to take such property into his possession, although he alleges that it has been wrongfully taken and converted by the defendant.</p> <p>Special Finding. — Requirements of. — Every fact necessary to the plaintiff’s recovery must be found and stated in the special finding, or the judgment must be for the defendant.</p> <p>Same. — Insufficient Complaint. — Where the facts specially found relate to a paragraph of complaint which is bad, a judgment rendered thereon for the plaintiff will be reversed.</p>

<p>Taxes.— Wrongful Assessment. — Increase of Valuation by Auditor. — .Refunding. —A county auditor lias no power to increase tlie valuation of lands for purposes of taxation as fixed by the assessor and the county board of equalization, and his action in doing so constitutes such a wrongful assessment, within the meaning of section 5813, R. S. 1881, as entitles a taxpayer to have the excess of taxes paid by him thereunder refunded.</p> <p>Same.— Valuation by Assessor and Board of Equalization Conclusive. — The valuation placed upon lands by the assessor and the board of equalization, even if too small, is conclusive upon the auditor and all other persons, until changed in some manner expressly authorized by law.</p>

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

<p>Supreme Court. — Assignment of Error. — Causes for New Trial. — Practice.— Matters which are properly causes for a new trial, and which should be embraced in a motion therefor, can not be independently assigned as errors in the Supreme Court.</p> <p>Same. — Form of Judgment. — An objection to the form of a judgment can not be made for the first time in the Supreme Court.</p> <p>Same.— Weight of Evidence. — A judgment will not be reversed on the mere weight of the evidence.</p> <p>New Triae. — Admission and Exclusion of Evidence. — Practice.—A cause for a new trial on account of the admission or exclusion of evidence, must specify the particular rulings complained of.</p> <p>Sauk — Assessment of Damages.— Waiver. — A question as to the amount of damages assessed is waived if not assigned as cause for a new trial.</p>

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

<p>Decedents’ Estates. — Sale of Real Estate. — Mortgage Men. — Priorities.— Adjudication. — Where, in a proceeding by an administrator to sell real estate to pay debts, which are not shown to be senior claims, a mortgagee, by cross-complaint, asks the foreclosure of his mortgage, and it is ordered that the mortgage be foreclosed as to part of the real estate embraced therein, and that the remainder be sold by the administrator discharged of liens, any deficiency in favor of the mortgagee to be paid by such administrator, in its order of priority, upon the further order of the court, no question of priority as between the mortgage and the debts for the payment of which the land is asked to be sold is adjudicated.</p> <p>Same. — Sale of Land Discharged, of Mens. — Application of Proceeds. — Mortgage. — Costs, Funeral Expenses, ele. — One holding a mortgage executed by a decedent upon real estate which an administrator is ordered to sell discharged of liens, is entitled, under section 2435, R. S. 1881, to have the entire proceeds of the sale applied to the payment of his mortgage debt, if so much is necessary, to the exclusion of claims for costs of administration, funeral expenses and expenses of last sickness.</p>

<p>Reflevin. — Complaint.—Description.—A complaint in replevin describing the property as “ one hundred bushels of wheat of the value of $100, said wheat having grown in and harvested on the 28th and 29th of July, 1885, having been threshed off the following described real estate and the wheat ground situate thereon,” describing the real estate, is sufficient after verdict.</p> <p>Same.— Verification of Complaint by Attorney. — Under section 1547, B. S. 1881, a complaint in replevin need not be verified by the plaintiff in person, but it may be verified by the attorney for the plaintiff, as his agent.</p> <p>Same. — Mortgage.—Foreclosure.~Purchaser at Sheriff’s Sale.— Crops. — Demand. — A purchaser of land at sheriff’s sale, Under a decree of foreclosure, upon receiving a deed becomes entitled to the immediate possession of the premises, and crops thereafter sown and harvested by the mortgagor or his lessee, without the purchaser’s consent, belong to the latter, and he may maintain replevin therefor without first making a demand.</p>

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

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

<p>Assault and Battery. — Intent.—There may be an actionable assault and battery, although there is no actual or specific intent to commit that offence.</p> <p>Same.- — Constructive Intent. — Riding Bicycle Against Footman. — One who rudely, and in such a reckless manner as to show a disregard of consequences, rides his bicycle against a person standing upon a town sidewalk, is liable as for an assault and battery, the intent being implied.</p> <p>Same. — Bicycle a “Vehicle.” — Use Upon Sidewalk Unlawful. — Personal Injuries. — Damages.—A bicycle is a vehicle within the meaning of the law, and, therefore, under section 3361, R. S. 1881, its use upon a public / sidewalk is unlawful, and its rider liable for an injury inflicted upon a footman, although the act be unintentional.</p> <p>Supreme Court. — Questions Upon Exclusion of Evidence. — BUI of Exceptions. —Practice.—Where all the evidence is not in the record, a question relating to the exclusion of evidence will not be considered, unless some statement is embodied in the bill of exceptions showing that the evidence was excluded because deemed intrinsically incompetent.</p>

<p>Supreme Court. — Weight of Evidence. — Reversal of Judgment. — Practice.— A judgment will not be reversed upon the mere weight of the evidence.</p>

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

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

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

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

<p>Bond. — Contractor for County Building. — Liability of Sureties. — Debts Incurred by Subcontractor. — Sureties on a bond given under section 4246, B. S. 1881, by a contractor for the construction of a county building are not liable for debts incurred by a subcontractor.</p>

<p>Taxes. — False List. — Omission of Property. — Penalty.—One who fraudulently omits from the tax list returned by him money on deposit belonging to him, is liable to the pecuniary penalty prescribed by section 6339, R. S. 1881, which is recoverable in an action in the name of the State, on the relation of the prosecuting attorney.</p> <p>Same. — Separate Offences. — Criminal and Civil Liability of Taxpayer. — The offences defined by sections 2150 and 6339, E, S. 1881, in relation to false returns of property for taxation, are separate and distinct, the one subjecting the taxpayer to criminal prosecution, and the other rendering him liable to a penalty recoverable in a civil action.</p> <p>Same. — Constitutional Law. — The Constitution of this State, in speaking of criminal prosecutions, does not refer to the enforcement of statutory penalties.</p>

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

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

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

<p>Contbact.— Written Lease. — Contemporaneous Parol Agreement. — Evidence.— Damages. — Counter-Claim.—In an action by a lessor, alleging breaches by the defendant of a written contract of lease, which appears on its face to be complete, and not dependent upon, or collateral to, any other contract, the defendant will not be permitted to prove, by way of counterclaim or recoupment, a contemporaneous parol agreement by the lessor to ditch the land embraced in the lease, and damages resulting to him from a breach thereof, as a written contract can not be thus varied or contradicted.</p>

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

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

<p>Partition. — Counter-Claim.—Time of Filing. — Practice.—If a defendant in partition proceedings desires to set up a claim for improvements made and taxes paid, the better practice is to file his counter-claim when he files his answer, and not after a finding has been made on the issue joined on the complaint.</p> <p>Same. — Sale mi Distribution. — The plain tiff in partition proceedings, where the real estate is found to be not susceptible of division, can not be required to pay the defendant for his interest in the property, or for improvements made or taxes paid by him thereon, as, in such case, it is the right of the plaintiff to have the real estate sold and his share of the proceeds distributed to him.</p> <p>Same. — Improvements.—Taxes.—Where the plaintiff in an action for partition is the owner of two-ninths of the property, exclusive of improvements made thereon by the defendant — who also sets up a claim for taxes paid — such plaintiff, upon the real estate being ordered sold as not susceptible of division, is entitled to receive from the commissioner two-ninths of the value of the real estate, exclusive of the improvements, less costs adjudged against him and less two-ninths of the taxes paid by the defendant on the real estate, exclusive of the improvements.</p> <p>Same. — Improvements Made with Notice of Co-Tenant’s Title. — The right of a tenant in common to compensation for improvements made by him is not a legal right, depending upon a statute, but is a right enforceable in a court of equity, and the fact that the improvements were made after notice of the co-tenant’s title will not defeat a recovery.</p>

<p>Pleading. — Demurrer.—Harmless Error. — There is no available error in overruling a demurrer to an insufficient paragraph of cross-complaint, where no relief is granted the cross-complainant under that paragraph.</p> <p>Statute oe Limitations. — Quieting Title. — An answer pleading the fifteen years statute of limitations in bar of a suit to quiet title to real estate is good.</p> <p>Same. — Coverture.—Infancy.—A reply of coverture to an answer pleading the statute of limitations in bar of a suit to quiet title is bad; so is a reply of the plaintiff’s infancy when the cause of action accrued, marriage during non-age and continued coverture.</p> <p>Same. — Adverse Possession. — Neither a suit to quiet title nor an action for partition can be maintained by plaintiffs, the youngest of whom is thirty-five years old, where it appears that the defendants and their grantors have been in the exclusive and continuous possession of the real estate for more than twenty years, under a claim of title, as in such case both proceedings are barred.</p> <p>Same. — Non-Residence of Plaintiff. — Running of Statute Against not Stayed.— The running of the statute of limitations against a plaintiff is not stayed during the time he may be a non-resident of this State. Smith v. Wiley, 21 Ind. 224, overruled.</p>

<p>Criminal Law. — False Representations. — Larceny.—Where one bargains for goods under an assumed name, paying only a part of the agreed price for the same — the contract providing that the title to the goods shall remain in the sellers until full payment is made — and immediately upon receipt of the goods ships them to a distant State and follows them there, these facts show a preconceived scheme to obtain possession of the goods, and feloniously appropriate them, and constitute a larceny.</p> <p>Same. — Larceny.—Trespass not Necessary to Constitute. — It is not necessary that there should be a trespass in order to constitute a larceny. Where a fraudulent device or scheme is resorted to for the purpose of divesting the owner of title and possession, the offence is larceny.</p> <p>Same — Newly Discovered Fkidence. — New Trial. — A defendant in a criminal case can not obtain a new trial, on the ground of newly discovered evidence, by producing a letter exculpating him from the charge, and swearing that it was written by a person by whom it purports to be signed.</p>

<p>Subrogation. — Mortgage.—Judgment.—Satisfaction-False Representations.— Husband and Wife. — Where a husband aud wife execute a'mortgage upon the former’s real estate, which is subsequently conveyed to the wife, who dies shortly after a judgment of foreclosure is rendered, leaving her husband and children surviving her; one who, at the solicitation of the husband, and upon his representation that the title is in him, and without any actual notice to the contrary, pays the amount of the judgment rendered upon the mortgage and causes satisfaction to be entered, and takes from the husband a new note and mortgage for the amount so advanced; is entitled, upon ascertaining the facts, to have the satisfaction of the judgment set aside, and to be subrogated to all the rights of the prior mortgagee, without regard to the- solvency or insolvency of the mortgagor.</p>

<p>Trade-Mark. — Infringement.—Injunction.—A label containing the words “Non-Secret Dental Vulcanite, made according to our analysis of the Akron Dental Bubber ” — the last three words being printed in a different colored ink from the rest of the label, with large type, and conspicuously displayed — is an infringement upon a trade-mark containing the words “The Akron Dental Bubber,” and injunction will lie to prevent its use.</p> <p>Same. — Intent to Deceive. — Presumption.—Where a trade-mark is used for the purpose of securing a benefit at the expense of its owner, and is not used in good faith for the purpose of explanation or information, the just presumption is that the person so using the trade-mark intends to deceive, and that he will probably succeed in his purpose, and the courts will restrain such use.</p> <p>Same. — Similitude in Substantial Parts. — When the similitude is in the substantial parts of a trade-mark there is an infringement, and an evasive attempt to hide the similarity, or a colorable explanation, which appears to be made for the purpose of escaping the effect of a wrongful use of the trade-mark, will not defeat the owner’s right to an injunction.</p> <p>Same. — Evidence.—Quality of Articles. — In a contention as to the infringement of a trade-mark, evidence as to the quality of the articles manufactured by the respective parties is not material.</p> <p>Tobt. — Action for. — Defence.—Set- Off. — Counter- Claim. — An independent tort can not be made a defence against another tort, either by way of set-off or counter-claim.</p> <p>Deposition. — Contumacious Witness.— Coercion and Punishment. — Where a witness under examination before an officer not having power to punish for contempt refuses to answer a proper question, the officer should report to a court having jurisdiction, and ask it to compel an answer or punish the contumacious witness. The deposition can not be suppressed on that account.</p> <p>Same. — For Use in Other State. — Assistance of Cowts. — The courts of the State where a deposition is taken to be used in another State, will exercise their authority, when appropriately invoked, to secure competent testimony, and will assist an officer within their jurisdiction, when assistance is properly asked, to secure answers to competent questions.</p>

<p>Attachment. — Garnishment.— Wages of Employee. — Defence.—Duty of Employer to Make. — Liability Notwithstanding Judgment. — Mailroad.—A railroad company is not bound to make a defence for an employee in proceedings against Mm in another State in which it is summoned as garnishee, and its failure to do so does not render it liable to the employee for the wages in its hands, notwithstanding the judgment in the garnishment proceeding.</p>

<p>Ceiminai. Law. — Renting Rooms for Gaming Purposes. — Evidence.—For evidence considered and held sufficient to sustain a conviction for renting a room to be used for gaming purposes, see opinion.</p> <p>Same. — Statutory Sufficiency of Evidence of Offence. — Province of Jury. — Constitutional Law. — Section 1815, B. S. 1881, prescribing what shall be sufficient evidence that a place was rented for the purpose of gaming, is not unconstitutional as being in derogation of the right of the jury to determine both the law and the facts in a criminal cause, and it is, therefore, proper to instruct the jury in accordance with the terms of that statute.</p> <p>Same. — Instruction to Jwry. — Omissions.—Where an instruction is correct as far as it purports to go. it can not be treated as erroneous because it does not go further and include some other proposition. It is only by asking a special instruction covering the omitted matter that a question can be reserved upon a failure of the court to instruct the jury upon it.</p> <p>Same. — Disagreement of Jury. — Instruction as to. — It is not error for the court to fail to instruct the jury, on its own motion, upon a contingency so remote as that involving their right to find one defendant guilty and disagree as to another.</p>

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

<p>Mandate. — Prison Warden.— Warrant for Fuel Purchased. — The warden of a State prison may be compelled by mandate to draw a warrant for fuel purchased for the prison by his predecessor, it being the duty of the warden, under sections 6140 and 6141, B. S. 1881, to purchase fuel and pay for it by drawing a warrant.</p> <p>Same. — Return.—Fraud.—Mistake.—A return by the warden alleging that the claim was rejected by the directors of the prison because they adjudged that there were improper weights, mistakes in calculations and inferiority in the quality of the fuel, but not alleging that there actually was fraud or mistake, is bad.</p>

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

<p>Practice. — Evidence.—Objection to. — An objection to evidence, to be available, must be made when a question which seems to invite improper evidence is asked, and the particular evidence and the specific grounds of objection must be fairly pointed out and stated.</p> <p>Same. — Motion to Strike Out. — li objectionable evidence is volunteered by a witness, or given in an answer that is not responsive to the question asked, or otherwise, before objection can reasonably be made, a motion should be made to strike out the particular matter which is considered improper.</p> <p>Contract. — To Furnish Material. — Measure of Damages. — The measure of damages for the breach of a contract to furnish lumber of a specified kind, is the difference between the contract price and the market value at the time and place of delivery fixed by the contract; but if the kind of material specified can not be had at the place of delivery agreed upon, it may be bought in the nearest market, or where it can be procured on the most advantageous terms, and the additional cost and expense charged to the defaulting vendor.</p> <p>Same. — Suspension of Work. — Damages Resulting From. — Where goods are sold for a special purpose, and the vendor has notice that a failure to furnish them according to the contract will occasion special damage, by the suspension of important work, he is liable, in case of default, for the direct loss resulting as the natural consequence of the suspension.</p>

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

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