Volume 118 — Indiana Reports

<p>Real Estate. — Action to Recover. — Disclaimer.—Effect of. — Demurrer.—Under section 1072, R. S. 1881, a disclaimer by the defendant will not bar an action to recover possession of real estate, nor defeat the plaintiff’s right to actual damages; but as the disclaimer is a confession, and its office to save costs accruing subsequent to the judgment, a demurrer to it will not lie.</p> <p>Same. — Costs.—If, in such a case, the defendant, in defiance of the judgment and in opposition to his disclaimer, refuses to yield possession and thus compels the plaintiff to take out a writ of ouster, he becomes liable for all costs.</p>

<p>Ne&liqence.— When Actionable. — A recovery can not be had for an injury which is the result of the joint or concurring negligence of both parties to the transaction. To charge the defendant with liability, the plaintiff must show that the injury was caused solely by the negligence of the defendant, or of persons for whose acts he is responsible.</p> <p>Railroad. — Grossing.—Drifting Train. — Negligence. — Injury to Footman.— Although a railroad company may be negligent in detaching an engine from the cars composing the train, and, by increasing its speed, widely ■separating it from the cars, which are allowed to run over a highway ■or street crossing without means of giving the statutory warning, yet if a pedestrian, who is familiar with the crossing and the habit of the company to so detach the engine, is run over and killed by the drifting train, in the daytime, when by looking of by heeding outcries he could have avoided injury, an action for damages will not lie.</p> <p>■Same. — Presumption of Negligence of Traveller. — Where it is found that the person killed could, by looking, have seen the approaching train in time to have avoided injury, and that there was nothing to prevent him, before reaching the track, from seeing the train when it was two hundred feet from the crossing, it will be presumed that he either did not look or that he deliberately took the risk of attempting to cross, notwithstanding the danger.</p> <p>Special Verdict.— When Judgment Must be Rendered Upon. — Where it appears by the answers of the jury to interrogatories that the facts, or some of them, essential to support the general verdict are in irreconcilable conflict with such verdict, the court must accept as true the facts specially found and render judgment accordingly.</p>

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

<p>Practice. — Pleading.—Exhibit.—Part ofBecord. — Bill of Exceptions. — Where a paper is properly a part of and is copied into the record as an exhibit filed with and as a part of a pleading, it need not be re-copied into the bill of exceptions, but it is sufficient to refer to it in the bill and state the fact that it was admitted in evidence and that a copy of it appears at a particular place in the record.</p> <p>Will. — Construction of. — Courts, in construing wills, will give due regard to the natural impulses and feelings of mankind, and take into consideration the general laws of descent and the rules for the disposition of estates, and beneficiaries will be held to take per stirpes unless the language used in the devise or bequest excludes such an intention.</p> <p>Same.— When Devisees Take Per Stirpes. — A testatrix provided by her will that her property should “ be divided equally between my brothers and sisters, and the children of deceased brothers and sisters, and the brothers and sisters of Perry J. Brinegar (her deceased husband), and the children of deceased brothers and sisters.”</p> <p>Held, that the children of deceased brothers and sisters of the testatrix and of her deceased husband take per stirpes, and are not entitled to share per capita with the living brothers and sisters.</p> <p>Same. — Phrase “to be Divided Equally.” — Meaning of. — The words “to be divided equally” apply as well to a division among classes as among individuals.</p>

<p>Supreme Court. — Assignment of Erors. — Brief.— Waiver. — Errors assigned by the appellant, but not discussed in the brief of his counsel, are waived.</p> <p>Same. — Intermediate Errors.— When not Available for Reversal. — Where the judgment is clearly right on the facts found, it will not be reversed on account of intermediate errors.</p>

<p>Husband and Wine. — Tenants by Entireties. — Quitclaim Heed from Husband to Wife. — Effect of. — Survivorship.—Where a husband and wife own real estate by entireties, a quitclaim deed from the husband direct to the wife, in which she does not join, but which she accepts and acts upon, is valid, and vests in the wife the whole estate in the land, and defeats the husband’s right of survivorship.</p>

<p>Cbiminal Law. — Evidence,—Objection.— Waiver. — By failing to object to a competent question the adverse party does not waive his right to move to strike out the answer, or such part of it as may be incompetent.</p> <p>Same. — Motion to Strike Out Evidence. — It is not error to overrule a motion to strike out evidence where part of the evidence embraced in the motion is competent.</p> <p>Same. — Rape.—Good Character of Defendant. — Examination of Witnesses. — In a prosecution for rape, it is proper to refuse to permit a witness, who testifies to the defendant’s good character, but who admits on cross-examination that he has heard charges against him, to be asked, on reexamination, if he ever heard any of his neighbors say that they believed the defendant was guilty of any outrage in a blackberry patch.</p> <p>Same. — Conviction of Assault and Battei'y under Indictment for £ape. — A defendant may be convicted of assault and battery under an indictment charging him with having committed a rape.</p>

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

<p>Sheriff’s Satie. — Mistake.—Sale of Wrong Land.— Trespass.— Waste. — Injunction. — A purchaser at sheriff’s sale of land sold by mistake acquires no title to the land intended to be sold and can convey none, and his grantee in taking possession thereof is a trespasser, and a subsequent purchaser from the judgment defendant may enjoin the commission of waste hy him.</p> <p>Same. — Notice of Mistake. — Fraudulent Conveyance. — Neither the fact that the purchaser from the judgment defendant bought with notice of the judgment lien and of its satisfaction by mistake, nor the fact that the land was conveyed by such judgment defendant to defraud his creditors, will defeat the suit for an injunction.</p>

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

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

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

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

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

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

<p>Supreme Court. — Brief.— Waiver of Error. — Error which is not discussed in the Supreme Court, in the brief of the party assigning it, is waived.</p> <p>Bill op Exceptions. — Practice.—Vacation.— When May be Piled in. — A bill of exceptions can only be filed in vacation, upon the authority given by the court for that purpose when in session, and such authority must appear by the record, and not by the bill of exceptions., Without such authority the bill of exceptions is no part of the record.</p>

<p>Courts. — Judges.—Ministerial Duties. — Judges can not be required by the Legislature to perform ministerial duties.</p> <p>Same. — Constitutional Duties. — Legislature May not Add to. — The Legislature has no power to add to the duties which are devolved upon judges by the Constitution.</p> <p>Same. — Supreme Court. — Syllabi of Decisions. — Reporter’s Duties. — Under the Constitution of this State the Legislature can not require the judges of the Supreme Court to discharge an essential duty of the reporter by the preparation of syllabi of decisions.</p>

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

<p>Pleading. — Theory.—A pleading must be good on the theory upon which it is drawn.</p> <p>Lien. — Real Estate.— Conveyance without Consideration.— General Debts of Grantor. — The general debts of a party who conveys land without consideration are not a lien upon the land.</p> <p>Fraudulent Conveyance. — Complaint.—A complaint to set aside a conveyance as fraudulent as against creditors must allege that the conveyance was made to defraud.</p> <p>Same. — Parties.—Administrator.—An administrator of a debtor who dies without heirs is a necessary party defendant to an action by creditors to set aside, as fraudulent, a conveyance made by the debtor.</p> <p>Same. — Agreement to Support Grantor. — Fraudulent Intent. — Notice.—A conveyance made in consideration of an agreement by the grantee to support the grantor for life, is valid, unless made with intent to defraud creditors, of which intent the grantee has notice at the time of the conveyance.</p>

<p>Contract. — Administrator’s Sale. — Agreement not to Bid. — An agreement entered into for the purpose of preventing competition at an administrator’s sale, is unlawful and void.</p> <p>Check. — Illegal Consideration.— Unlawful Contract. — A cheek given in pursuance of an agreement whereby a bid made by the drawee for property offered for sale by an administrator shall be withdrawn, and the drawer allowed to purchase the property without competition, is not enforceable.</p>

<p>Railroad. — Conductor.—•Employment of Physician. — Ratification by Company. —Where a conductor, claiming to act as the agent of the railroad company, employs a physician to render professional aid to a stranger injured by collision with his train, telling the physician that he will leave the injured person in his care for treatment, and for him to send his bill to the superintendent of the road, and the company is notified of the employment, and permits the physician to go on and render services thereunder, it thereby ratifies the conductor’s act, and is liable for services rendered until the patient is convalescent. Mitchell, J., dissents.</p> <p>Evidence. — Telegram.—Parol Evidence of Contents. — Where it does not appear that a message given to a telegraph operator for transmission was in writing, it can not be held that parol evidence of the contents of the message was improperly admitted.</p> <p>Same. — Harmless Error. — There is no available error in admitting parol proof of the contents of a telegram where it is in evidence that the information contained therein was orally communicated by the sender of the message to the receiver.</p>

<p>Pleading. — Qomplaini.—Ordinance.—Enactment.—Sufficiency of Allegation as to. — An allegation in a complaint, that an ordinance was enacted by the board of trustees of the town, is sufficient, as the trustees alone are authorized to enact ordinances.</p> <p>Municipal Corporation. — Intoxicating Liquor. — Sale, Barter or Giving Away of. — Ordinance Relating Thereto.— Validity of. — An ordinance which prohibits the sale, barter or giving away of intoxicating liquor without a license, is valid. The substantive grant contained in the statute is the power to license, regulate and restrain the sale of intoxicating liquors, but as a necessary incident to this power is included the power to prohibit the bartering or giving away of intoxicating liquors.</p>

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

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

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

<p>Execution. — Lien.—Property not subject to an execution is not subject to its lien.</p> <p>Same. — Exemption.— Conveyance by Debtor. — Sheriff’s Sale. — A judgment debtor may convey real estate which he claims as exempt from execution, and one who purchases the property at sheriff’s sale under the judgment acquires no title as against the prior grantee of the debtor, whose deed is duly recorded.</p> <p>Same. — Alias Execution. — Additional Schedule. — A purchaser of exempted property from a judgment debtor, having recorded his deed, is not bound to oppose the issue of executions or to secure additional schedules from his grantor.</p> <p>Same. — Notice.—Means of Knowledge. — A purchaser who has the means of knowledge, in legal contemplation has knowledge, and can not be deemed an innocent purchaser.</p>

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

<p>Free Gravel Boad. — Order Directing Reassessment. — Right of Appeal. — An appeal will lie from an order of the board of commissioners directing a reassessment to pay the expense of constructing a free gravel road.</p> <p>Same. — County Auditor. — Authority to Increase Assessment. — Ratification.— The county auditor has no authority to increase an assessment beyond the sum ascertained and assessed as benefits in due course of law, and his act in doing so is not validated by a mere ratification thereof by the board of commissioners.</p> <p>Same. — Statute Construed. — Section 5096, B. S. 1881, must be construed as meaning that the auditor can only add to the assessment when it appears that the addition will not make the assessment exceed the benefits ascertained and reported in compliance with the statute.</p>

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

<p>Arbitration. — Award.—Setting Aside of. — Game for. — An award will be set aside when the arbitrators, after their appointment, and while engaged in the discharge of their duties, partake of hospitalities, in the way of lodging and meals, from one of the litigants. The same influences or misconduct that would avoid the verdict of a jury, ought to avoid an award.</p> <p>Same. — Attentions Bestowed on Arbitrators. — Influence of, Immaterial. — It is immaterial whether the arbitrators were in fact influenced by such attentiohs or not. Their acceptance of them is sufficient to invalidate the award.</p> <p>Same. — Assessment of Costs. — Where an award is set aside on account of the misconduct of one of the parties, it is proper to tax such party with the costs made in the trial before the arbitrators.</p> <p>Same. — Oral Testimony of Arbitrators.— When Admissible. — Where affidavits of arbitrators are filed in support of the award they have made, the court, in its discretion, may call the arbitrators and examine them orally in relation to the matters about which they have testified in their affidavits.</p> <p>Same. — Setting Aside of Reference. — Trial by Court. — Where a case is submitted to certain arbitrators by name, and their award is set aside, it is the duty of the court, unless the parties agree upon other arbitrators, to set aside the reference and try the cause in its regular turn.</p> <p>Evidence. — Admissibility of. — Must be Embraced Within the Issues. — Under a complaint seeking a recovery for damages occasioned by the overflowing of the plaintiff’s land, washing away tiling, etc., evidence is not admissible as to any expense incurred by the plaintiff in his efforts to keep the water off of his land, such an isssue not being embraced within the pleadings.</p> <p>Same. — Irrelevant Testimony. — Rebuttal of. — If testimony is erroneously admitted in rebuttal of irrelevant testimony introduced by the other party, it is a harmless error, for which the cause will not be reversed.</p> <p>Same. — Conflicting Evidence. — Setting Aside of Verdict. — Where the evidence in a cause is conflicting, the verdict will not be disturbed on the weight of the evidence.</p> <p>Watercourse. — Obstruction of. — Instructions.—As to what constitutes a running stream or watercourse, for the obstruction of which an action will lie, see instructions set forth in opinion.</p> <p>Instructions. — Must be Considered Together. — Instructions are to be considered as a whole, and not in detached portions.</p>

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

<p>Real Estate. — Parol Contract of Purchase. — Possession.—Quieting Title.— Complaint. — Motion in Arrest. — A complaint to establish and quiet title alleged a parol contract of purchase and the payment of part of the consideration, and that the plaintiff “ immediately upon said purchase entered into possession of said real estate and has since kept in possession.”</p> <p>Held, that the complaint is sufficient, as against a motion in arrest of judgment, to show that possession was taken under and by virtue of the contract.</p>

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

<p>Deposition. — Publication After Trial has Commenced. — A party has the right to have a deposition taken by him published after the trial has commenced, although it has been regularly on file for forty-two days.</p> <p>Same. — Delay in Moving for Publication. — As either party may move to publish a deposition, neither can complain of delay on the part of the other in making the motion.</p>

<p>Will. — Legacy.—Specific and Demonstrative. — Ademption.—Married Woman.— A father executed a will devising his homestead farm to two of his sons. To bis four other children he bequeathed five hundred dollars each, to be paid in cash and to be in full of their interests in the homestead farm. The will contained a recital that the devises and bequests thus made were to be considered as a disposition of the homestead farm among the testator’s children, and were not to affect any other interest ■or estate. Afterwards, and during the testator’s lifetime, the devisees of the homestead farm furnished their father two thousand dollars, out of which he paid each of the four legatees five hundred dollars, and received from each a receipt, as follows: “ Received from William B. Eldridge $500, in consideration of my interest in his homestead farm, corresponding with his last will.” At the death of the testator the homestead farm and personal property worth five hundred dollars constituted his entire estate.</p> <p>Held, that the legacies were neither specific nor demonstrative, and that they were adeemed and satisfied by the payments made in the manner disclosed.</p> <p>Held, also, that money paid to a married woman, in ademption of a legacy, produces the same legal result as if she were unmarried.</p> <p>Same.— What Constitutes an Ademption. — An ademption results where a parent, or other person standing in loco parentis, after having made a bequest, gives a portion to the child to whom the bequest is made equal to or in excess of the amount bequeathed, the portion given and the legacy being ejusdem genesis.</p> <p>Same. — Ademption of Specific or Demonstrative Legacies. — Whether a legacy be specific or demonstrative, if it clearly appears that the particular thing or fund bequeathed has been irrevocably delivered over to the legatee in the lifetime of the testator, the legacy is adeemed.</p>

<p>Railroad.— Obstruction of Highway. — A railroad company which leaves its cars standing in a public highway is guilty of an unlawful obstruction thereof, under sections 1964 and 2170, R. S. 1881, notwithstanding it may leave a portion of the center of the roadway open for the passage of vehicles.</p> <p>Same. — Oar Standing in Highway. — Frightened Horse. — Personal Injury.— Complaint. — In an action against a railroad company for damages, the complaint is sufficient, as against a demurrer, if it alleges that the plaintiff was injured by reason of her horse becoming frightened at a car negligently left standing in a public highway along which she was lawfully driving, without alleging that there was anything peculiar or unusual about the car likely to frighten horses.</p> <p>Same. — Negligence of Employees. — Averment as to.- — A general allegation in the complaint that a car was negligently placed and allowed to remain in the highway by the employees of the defendant, is sufficient to charge the latter with negligence, without specifying the particular employees or pointing out their duties with respect to the moving of cars.</p> <p>Same. — Evidence.—Erroneous Admission.— When Party Estopped to Complain. —Where the defendant, over the objection of the plaintiff, secures a ruling admitting testimony that horses had passed the obstruction in the highway without becoming frightened, it can not complain of the admission of testimony upon the same subject in rebuttal, even if such. evidence is incompetent.</p>

<p>Free Gravel Road. — Expense of Constructing. — Limitation, of Assessment.— It is only the legitimate expense of constructing a free gravel road that can be assessed against the land-owners. If the board of commissioners exceeds its authority, the county must either bear the loss or compel the commissioners to account.</p> <p>Same. — Allowances.—Appeal.—Land-owners are not bound to appeal as each allowance is made, but they have a right to wait until final judgment is entered and then appeal.</p> <p>Same. — Appeal from Reassessment. — Questions Presented. — By an appeal from the final order made by the board of commissioners in proceedings to reassess the property benefited by the construction of the road, all questions affecting the amount of the second assessment may be brought before the court.</p> <p>Same. — Auditor not Entitled to Compensation. — There is no law providing that the county auditor shall receive compensation for services rendered by him in proceedings under the act of 1877 for the construction of a free gravel road, and he can not be allowed compensation as a part of the expense of constructing the road.</p> <p>SameAttorney’s Fees. — The fees of attorneys employed by the board of commissioners can not be charged against the land-owners, in cases where the courts decide that they had just cause for resisting an assessment.</p>

<p>Landlobd and Tenant. — Contract.—Notice to Quit. — Emdenee.—While no notice to quit is necessary where the time when the tenancy expires is fixed by written contract, yet if a notice be given, although not in the manner provided by the statute, it is admissible in evidence, in an action for possession, to show that the landlord insisted on his right to possession at the time fixed.</p> <p>Evidence.' — Motion to Strike Out. — Practice.—-A motion to strike out the testimony of a witness upon a given subject, as a whole, should be overruled if a part of such testimony is competent.</p>

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

<p>Ceiminal Law. — Involuntary Manslaughter. — Railroad Engineer. — Negligently Running Engine into Passenger Gar. — Where a railroad engineer, while engaged in operating the engine in his charge, carelessly and negligently runs the same into a passenger car standing upon the railroad track, thereby causing the destruction of the car and the death of a passenger therein, he is guilty of the offence of involuntary manslaughter, as defined by section 1908,R. S. 1881.</p>

<p>Contbact. — Incomplete Writing. — Parol Gontraet. — Pleading.—Where a letter neither contains nor purports to contain the entire contract between the parties, but, on the contrary, points to extrinsic facts, the contract is not a written, but a parol one, and it is proper to declare on it as such.</p> <p>Same. — Attorney.—Compensation for Services. — Where a railroad company contracts to pay an attorney reasonable fees “ for assisting in trials in cases against the company,” the right of the attorney to compensation is not limited to services rendered in “ trials,” in the narrowest technical meaning of the word, but he is entitled to pay for necessary services rendered in actions.</p> <p>Same. — Construction.—Acts of Parties. — Courts will follow the construction which the parties themselves, by their acts, have put upon their own contracts.</p>

<p>Railroad. — Common Carrier. — Negligence.—Contract.—Consideration. — The injury of property m transitu through the negligence of the carrier, is a sufficient consideration for an agreement on the part of the latter to pay the owner of the property a certain sum in settlement of damages.</p> <p>Same. — Adjustment of Damages. — Right to Keep Injured Property. — A railroad company has the right, in adjusting damages for injury to property caused by its negligence, to contract to keep the injured property and pay the owner its value.</p> <p>Same. — Bill of Lading. — Limitation of Inability.— Waiver. — A stipulation in a bill of lading limiting the liability of the carrier to a certain sum, is waived where the latter, in adjusting the damages resulting from its negligence, agrees to take the injured property and pay the shipper a larger sum than that limited.</p>

<p>Bank. — Eight to Apply Deposit to Payment of Note. — Suretyship.—A bank has no right, without the depositor’s consent, to apply money due him as a depositor to the payment of a note held by the bank, upon which he is liable as surety.</p> <p>Same. — Contract.—Equitable Appropriation of Deposit. — Promissory Note.— Deceiver. — Where a bank, holding an overdue note upon which a depositor is surety, agrees with the latter that an amount of his account equal to the note shall be considered as applied in payment thereof at any time, and that the note shall be held by the bank and collected for the surety’s benefit, the latter at no time to draw his account below the sum due on the note, upon the failure of the bank the depositor is entitled to any sum that the receiver may eolleet from the principal in the note, the agreement between the bank and the depositor being an equitable satisfaction of the note as to the latter, and making it his property.</p>

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

<p>Telephone. — Instrument of Commerce. — Common Carrier. — The telephone is an instrument of commerce, and persons or corporations engaged in the general telephone business are common carriers of news.</p> <p>Same. — Discrimination.—Mandamus.—A person or corporation engaged in operating telephone lines, furnishing connections, facilities and service to business houses, persons and companies, can be compelled by mandate, on the petition of one discriminated against, to furnish to such a one the same service that it furnishes to others, independent of any statutory provision against discrimination.</p> <p>Same. — Character of Service. — Statutory Regulation. — Rental Charges. — ToUStations. — A company doing a general telephone business in this State can not evade the acts of April 8th and April 13th, 1885 (Acts of 1885, pp. 151, 227), prescribing the duties of such companies and regulating the rental to be charged for the use of telephones, by ceasing to do a rental business and establishing public toll-stations, but under such acts any person,'within the local limits of the business of such a com- , pany in a town or city, has the right to demand and receive a telephone, with connections, facilities and service, at the rate per month fixed therein.</p> <p>Same. — Dines Extending into Other States. — Interstate Commerce. — The acts of 1885, relating to telephone companies, apply merely to the service to be provided to persons within this State, and they are, therefore, not open to the objection that they are void as attempting to regulate interstate commerce, although the lines of a company doing business in this State may extend into other States.</p> <p>Same.— Violation of Statute. — Penalty.—Mandamus.—The fact that the statute prescribes a penalty for the violation of its provisions, does not abridge the right of an aggrieved party to compel the telephone company, by mandamus, to furnish him with the service to which he is entitled.</p> <p>Same. — Municipal Service. — Extra Territorial Lines. — In an action by a resident of a city to compel a telephone company to furnish him with telephonic service within such city, an answer that the lines of the company extend outside of the State, and that by furnishing the plaintiff with an instrument and service he would be placed in communication with points outside of the State, is bad.'</p>

<p>Warehouse Receipts. — Endorsee for Value. — Liability of Warehousemen to. —Where warehouse receipts were issued, providing that the property described therein should be delivered only on return of the certificates properly endorsed, and the warehousemen delivered the property without the return of the warehouse receipts, they are liable to an endorsee of the warehouse receipts who in good faith loaned money upon them. They will not be heard to dispute the endorsee’s title, nor to aver that they did not receive the property on the terms specified in the receipts.</p> <p>Same.— What They Represent as True. — Innocent Parlies. — Reliamce on Representations. — The warehouse receipts issued by the appellants represent as true two very essential things: 1. That the warehousemen received the property mentioned in the receipts as warehousemen. 2. That the property will be delivered only on the return of the certificates, properly endorsed. The warehousemen, and not an innocent third party who has relied on their representations, must bear the loss.</p> <p>Same. — Representations.—Withdrawal of. — When Can Not be Lone. — It is a general rule that one who makes representations can not withdraw or deny them to the prejudice of a third person who has acted upon them in good faith, even though there is no preconceived design to defraud.</p>

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

<p>Pleading. — Amendment of Complaint. — An amended complaint has relation ordinarily to the date of the commencement of the action, and is regarded as a matter occurring in the continuation of the original cause. •</p> <p>Same. — Statute of Limitations. — Unless some new claim or title, not previously asserted, is set up by way of amendment, a plea of the statute of limitations will be determined with reference to the date when the action was originally commenced.</p> <p>Same. — Action for Personal Injuries. — Where a complaint seeking to recover for being wrongfully expelled from a train is filed within two years from the doing of the act complained of, an amended complaint, filed after that'time, seeking to recover merely for being expelled from the train with unnecessary violence, is not barred.</p> <p>Bailroad. — Expulsion from Train.— Unnecessary Force. — Damages.—Negligence. — Evidence.—In an action to recover damages for injuries sustained by being ejected from a train with excessive force, there is no question of negligence or of contributory negligence in the case, and it is error to permit the plaintiff to prove that he was upon the train in pursuance of information given him by the defendant’s ticket agent that the train would stop at the station where he wanted to alight.</p> <p>Same. — Eight of Trespasser to Eecover. — Such an action is for an unlawful invasion of the plaintiff’s right of personal security, and proceeds upon the correct assumption that he is entitled to recover for injuries sustained by being ejected from the train with needless violence, even though he was upon the train without right.</p>

<p>Pleading. — Answer.—Denial.—A paragraph of answer setting out facts which amount to a denial of the cause of action stated in the complaint, is good.</p> <p>Statute oe Limitations. — Real Estate. — Specific Performance of Contract.— Quieting Title. — Under section 294, R. S. 1881, actions for the specific performance of a parol contract of purchase\of real estate, and to quiet title to real estate alleged to have been held by a decedent in trust for the plaintiff, must be brought within fifteen years.</p> <p>New Trial. — As of Right. — Bond.—Second Application. — Error Cured. — An error in granting a new trial as of right, without a bond being tendered and approved as required by section 1064, R. S. 1881, is cured by a second order granting a new trial upon a new application and a compliance with the statute, although the first order is not formally set aside.</p> <p>Witness. — Action Between Heirs. — In an action between a brother and sister relative to the title to land which both claim through their deceased father, a brother of the claimants and his wife, who are parties to the action but not to the issues, and disclaim any interest in the subject-matter of the controversy, are competent witnesses.</p> <p>Same. — Competency under Section 500, R. S. 1881. — Where, in an action between heirs, a witness is called by one party, who testifies as to a conversation, relating to the matters in controversy, had by him with the opposite party, prior to the decedent’s death and in his absence, such opposite party becomes a competent witness, under section 500, R. S. 1881, in response to such testimony, but his right to testify is limited to the conversation in question.</p> <p>Evidence. — Real Estate. — Trust.—Payment of Taxes. — In an action seeking to establish a trust in land, receipts showing that the person sought to be declared a trustee paid the taxes on the land while it was in his possession, is competent.</p> <p>Trial.— Whether by Court or Jury.— How Determined. — In determining whether a cause is triable by the court or by a jury, under the provisions of section 409, R. S. 1881, neither the prayer for relief nor the name given to the action by the pleader is controlling, but the court will look to the substantive facts pleaded.</p> <p>Same. — Rule Stated. — Where the cause of action is one that can only be enforced by invoking the equitable powers of the court, the right of trial by jury does not maintain ; but if the cause of action does not depend on the equitable jurisdiction of the court, a trial by jury may be demanded. Johnson v. Taylor, 106 Ind. 89, and Kilts v. Willson, 106 Ind. 147, modified.</p> <p>Same. — Real Estate. — Action by Equitable Owner to Recover. — Ejectment.—An action by a plaintiff who seeks to recover the possession of land as the1 equitable owner thereof, is of exclusive equitable jurisdiction, within, the meaning of section 409, K. S. 1881, and triable by the court, but an. ordinary action in ejectment is triable by jury.</p> <p>Same. — Mixed Actions.— Withdrawal of Cause from Jury. — Instruction to Find' for Defendant. — Where, in case of the joinder of law and equity causes of action, the issues in the former are submitted to a jury, it is the duty of the court, if there is a failure of proof on the part of the plaintiff, to either withdraw the case from the jury or instruct them to find for the defendant.</p>

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

<p>Mortgaged Chattels. — Sale on Fxeoulion. — Duty of Constable. — Notice of Lien. — It is the duty of a constable, under section 722, R. S. 1881, to ascertain from the records whether property levied upon by him by virtue of an execution is mortgaged; the mortgagee is not required to give him further notice of the lien.</p> <p>Same. — Duty of Officer to Retain Possession. — Liability on Bond. — A constable must retain possession of mortgaged property sold by him until the purchaser has complied with the conditions of the mortgage, and for a breach of this duty he is liable on his bond.</p> <p>Same.— Validity of Lien. — Disputes between Purchaser and Lien-Holder. — The duty of the constable is discharged by retaining possession ; he can not compel a compliance with the conditions of the mortgage, and has nothing to do with the validity of the lien or disputes that may arise between the purchaser and lien-holder.</p> <p>Same. — Failure of Mortgagee to Set up Title at Sale. — -A mortgagee of chattels which have been levied upon by a constable in satisfaction of an execution, does not waive any right of action against the officer for a breach of duty by failing to appear at the sale and set up title.</p> <p>Same. — Responsibility of Purchaser. — It is no defence to an action upon a constable’s bond for delivering property without requiring the purchaser to comply with the terms of the mortgage, that such purchaser is a responsible person, residing within the county.</p> <p>Same. — Answer.—Nominal Damages. — -An answer that the mortgaged property remains in the custody of the purchaser, within the county, and still subject to the lien, and that the mortgage may be enforced as well as before the sale, is not good as a complete defence, as the defendants are at least liable for nominal damages.</p> <p>Same. — ■ When Mortgagee Bound to Pursue Property. — Measure of Damages.— If mortgaged property, after it has been sold on execution and delivered to the purchaser, is still in such a situation and condition that the mortgagee may pursue it and subject it to his mortgage, he is bound to do so ; and the officer, for his breach of duty in delivering the property without requiring a compliance with the mortgage, will be liable only for such damages as the mortgagee has actually sustained.</p>

<p>Teleghiaph Company.— Transmission of Message. — Penalty.—Contract.—A contract is essential to create a duty, and in order that one may recover the statutory penalty for a breach of duty in the transmission of a telegram, a valid contract must be shown, as the contract is the foundation of the action.</p> <p>Same. — Transmission on Sunday. — Necessity.—A contract by a telegraph company to transmit a message on Sunday is valid or invalid, owing to the reasonable necessity, or the want of it, for the transmission of the message on that day. For evidence held not sufficient to show a necessity, see opinion.</p> <p>Same. — Nature of Business. -In determining whether an act is, or is not, one of necessity, it is proper to give just effect to the nature of the business in which the person who does it is engaged.</p> <p>Same.— What Messages May be Sent. — A telegraph company may not transact ordinary business on Sunday, but it may keep open its offices for the receipt and transmission of messages where a reasonable necessity exists, such as those designed to relieve suffering, avert harm or prevent serious loss.</p> <p>Same. — Complaint.—Notice of Necessity. — Where a complaint against a telegraph company to recover a statutory penalty shows that the contract was made on Sunday, the complaint is bad unless the contract is shown to be valid because of the existence of a necessity for the making of the contract on that day, and that the defendant knew of the necessity.</p> <p>Same. — How Notice May be Shorn. — Where the contents of the telegram itself are not sufficient to charge the telegraph company with notice of the necessity for its transmission, the plaintiff must show knowledge by extrinsic facts. A message reading, “ Bring forty dollars if you want record,” does not show necessity.</p> <p>Same. — Prepayment of Charges. — Where the agent of a telegraph company declines to receive compensation for transmitting a message, and requests the sender to allow the expense to be paid by the receiver, the company can not escape liability on the ground that compensation was not prepaid.</p> <p>Same. — Notice of Default. — Failure to Give. — Where a contract is essential to the existence of a duty, and it contains a stipulation requiring the plaintiff to give a written notice of a default, the failure to give the notice will defeat an action to recover a penalty attached to a violation of the duty created by the contract.</p> <p>■ Same.— Tt^hen Notice or Demand not Necessary. — A provision in a contract between a telegraph company and the sender of a message, that “ the company will not be liable for damages in any case where the claim for damages is not presented in writing within sixty days after sending the message,” applies only to cases where the message is sent, and if there is a failure to transmit, no written notice or demand is required to fix the company’s liability*.</p> <p>■ Same.' — Evidence.—Declarations of Agent. — An objection to the admission of the declarations of an agent on the ground that “ no other person can bind the company except the one with whom the business is transacted,” presents no question as to the nature and scope of the agent’s authority, and is not well taken as a general proposition.</p>

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

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

<p>Pleading. — Complaint.—Attack after Verdict. — If a complaint, consisting of two paragraphs, taken as an entirety, states a cause of action in all of the plaintiffs, it is good as against an attack after verdict, although each paragraph states a cause of action only in some, and not in all, of the plaintiffs.</p> <p>Mortgage. — Consideration.—Parol Proof. — The consideration of a mortgage may be proved by parol, but it is not competent to contradict by parol the conveying part of such an instrument.</p> <p>Same. — Por Support of Mortgagee. — Cancellation.—Where, after partition of an intestate’s property, the widow conveys to the heirs all of her interest in the land, and in consideration thereof and to better secure herself means of support during her life, requires each heir to execute to her a mortgage upon the land set apart to him, for a certain sum, with interest, “ to be collected by her only,” the mortgagors, upon showing a compliance with the mortgage during the mortgagee’s lifetime, and a demand of the proper person after her death for its satisfaction, are entitled to have the mortgage cancelled.</p> <p>Supreme Court. — Special Finding. — Judgment upon. — New Trial. — Practice.. —Where the Supreme Court is satisfied from the record that it would work injustice to direct judgment upon a special finding of facts, it will' remand the cause with instructions to grant a new trial.</p>

<p>Real Estate. — Ejectment.—Quieting Title. — Pleading and Proof. — Where the plaintiff in an action of ejectment, or in a suit to quiet title, alleges a legal title, a recovery can not be had by proof of an equitable title.</p> <p>Same. — Statutory Provisions. — All the provisions of the statute in regard to actions to recover possession of real estate apply to suits to quiet title.</p> <p>Same. — Parol Contract of Purchase. — Mquitdble Title. — To constitute an equitable title to real estate under a parol contract of purchase, the claimant must show that possession was taken under the contract, and that the purchase-money was paid.</p> <p>Same. — Specific Performance. — A parol contract for the sale of real estate, the specific performance of which a court of equity will enforce, must be one that is complete and definite, and it must be just and fair in all of its provisions.</p> <p>Pleading.— Complaint. — Cross-Complaint. — General Pules. — The general rules which govern a complaint also govern a cross-complaint.</p>

<p>Stbeet Impbovement. — Surplus Earth, — The validity of a provision in an ordinance authorizing a street improvement that surplus earth accumulating in the course of the improvement shall belong to the contractor, can not, under section 3165, E. S. 1881, be questioned in a proceeding to enforce an assessment.</p> <p>Same. — Estoppel.—Where a common council acquires jurisdiction and makes a contract for a street improvement, a party benefited, who stands by, without objecting, until the work is completed, is liable for the amount assessed against him as benefits.</p> <p>Same. — Estimate.— Precept.— Presumption. — In the absence of an answer showing that the improvement was not completed according to the contract, the court must presume that the city engineer, in reporting a final estimate, and the common council, in ordering a precept, did their duty.</p> <p>Same. — Affidavit for Precept. — It constitutes no valid objection to the affidavit for a precept that it was signed and sworn to by only one of two contractors.</p> <p>Same. — Extension of Time for Completing Improvement. — The time of the contractors for the completion of the work, as fixed in the contract, may be lawfully extended by a vote of the common council.</p> <p>Same. — Amendment of Transcript or Precept. — The circuit court has no authority to amend the transcript or precept, or to authorize an amendment thereof, but such amendments must be made by the order or with the consent of the common council, after which an amended transcript may be filed.</p>

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

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

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

<p>Stbeet Impbovement. — Assessment.—Construction of Statutes. — Statutes conferring power upon municipalities to make assessments for street improvements must be strictly construed.</p> <p>Same. — Quantity of Ground Affected by Assessment. — The statute of 1881 (R. S. 1881, section 3163), authorizes cities to levy an assessment upon ground abutting on the improvement to a distance of fifty feet back from the front line, and no more can be affected.</p> <p>Same. — Act of 1885 Not Retrospective. — The act of 1885 ÍActs of 1885, p. 207), relating to street improvements, does not enlarge the lien of a contractor where the work was completed and a sale had upon a precept prior to the passage of such act.</p> <p>Statute. — Construction.—Prospective Operation. — Legislative Intention. — Unless a contrary intention clearly and strongly appears, and is manifested in appropriate words, a statute will always be given a construction that will make it operate prospectively, where to do otherwise would materially change existing rights.</p>

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

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

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

<p>Pabtneeship. — Agreement.—Limitation of Interest. — Bights of Third Persons. —A partnership agreement, whereby the money and property used and accumulated in the course of the business of the firm belong exclusively to one partner, the other member to receive as compensation for his services a share of the profits merely, is not only valid between the partners, but is also binding upon persons who deal with the profit-sharing member, with knowledge of the facts.</p> <p>Same. — Township Trustee. — Settlement with Predecessor. — Beeeiving Check upon Funds of Third Person. — Liability.—A township trustee who, upon a settlement with his predecessor in office, with knowledge of the facts, receives from him a check, drawn in the name of the lattez-’s business partner, against a fund belonging to such partner, and which the drawer is authorized to use only for matters pertaining to the partnership business, is liable, in a suit brought against him in his individual capacity, to the owner of the fund for the amount so received.</p>

<p>Prom the Decatur Circuit Court.</p>

<p>Taxes.- — Invalid Sale. — Reimbursement of Purchaser.— Governing Statute. — A proceeding, brought after the tax law of 1881 went into force, by a purchaser at a city tax sale made under the law of 1872, wherein the plaintiff seeks to be reimbursed from the city treasury for the taxes paid by him, is governed by the law of 1881.</p> <p>-Same.— When Purchaser Entitled to Reimbursement. — Description of Land. — . Oily. — Judgment.—Gonclusiveness of. — The right of a purchaser to be reimbursed from the public treasury for taxes paid by him, on account of uncertainty in the description of the land sold, only exists where the description is so indefinite as to fail to carry a lien; yet if the description is not of this character, but an action is brought by the owner of the land against the city treasurer and the purchaser, and defended by the city, wherein it is decreed that the purchaser acquired no lien, and his certificate is cancelled and the plaintifi’s title quieted, the city is concluded by the judgment, and the purchaser is then entitled to be reimbursed, under section 6487, R. S. 1881.</p>

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

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

<p>Sheriee’s Sale. — Redemption by Heir. — Right of Creditor to Re-Sale. — Where real estate sold on execution or decretal order is redeemed by an heir of the deceased judgment debtor, the sale is thereby vacated, under section 770, R. S- 1881, and the real estate again subject to sale to satisfy any unpaid balance of the judgment.</p> <p>Same. — Decedent’s Estate. — Filing Claim Against. — Release of Lien.— Waiver.— A judgment creditor, by filing a claim against the estate of the deceased debtor for the unpaid balance of his judgment and procuring it to be allowed, does not release his lien or waive his right to enforce the original judgment by a re-sale of land after the previous sale has been vacated by redemption.</p> <p>•JtjdGtMENT. — By Default. — Relief from. — Absence of Attorneys. — For facts held sufficient, under section 396, R. S. 1881, to entitle a party to relief from a judgment taken against him by default, during the absence of his attorneys, see opinion.</p>

<p>Ferries. — License.—Interstate Waters. — A State may, either directly or through a grant of power delegated to a municipal corporation, exact reasonable license fees from the keepers of ferries living within the State, although their boats ply between landings lying in two different States.</p> <p>Same. — Municipal Regulation. — The common council of a city may prescribe reasonable regulations for the government of interstate ferries, and may designate the time and place of landing, consistently with the general law and with such regulations as the board of county commissioners is authorized to make.</p> <p>Same. — Time of Running.— Bxclusive Control of County Commissioners.— City Ordinance. — The board of commissioners of the proper county is exclusively authorized by statute to regulate the hours during which a licensed ferryman, whose boat runs to and from points without the limits of the State, is required to keep his ferry open and run his boats, and a city ordinance prescribing inconsistent regulations is not enforceable.</p>

<p>Mortgage. — Representation of Title. — Estoppel.—One who represents to a third person, upon inquiry, that he has sold certain land to another, who is in possession thereof, and that the latter has sufficient title to support a mortgage to secure money which he proposes to borrow from the inquirer, is estopped, in a suit to foreclose a mortgage taken in reliance upon his representations, to deny that the mortgagor had title.</p> <p>Same. — Fraud.—Preconceived Design. — A n estoppel may arise where there is no preconceived design to deceive or mislead; the fraud consists in denying a representation upon which another has acted, and the repudiation of which will entail loss upon him.</p>

<p>Judgment. — Jurisdiction.—Collateral Attack. — Where a court of general jurisdiction has jurisdiction of the subject-matter of an action and of the parties thereto, its judgment is not void and can not he collaterally attacked, but is binding until reversed or set aside in some appropriate proceeding for that purpose.</p> <p>■Same. — Presumption as to Jurisdiction. — Where a judgment is rendered hy a court having jurisdiction of the subject-matter of the action, it will he presumed, where its record is silent, that it acquired jurisdiction of the parties.</p> <p>Bead Estate. — Mortgage.—Foreclosure.—Sale. — Title of Purchaser Relates Back. — The title acquired by a purchaser at a sale under a decree foreclosing a mortgage relates hack to the date of the mortgage.</p> <p>Bame. — Ejectment.—Possession by Stranger. — Disclosure of Title. — Where such a purchaser, in an action hy him to recover possession against one who was not a party to the foreclosure suit, makes out, prima facie, a perfect ■title, the defendant, if he has any title, must disclose it.</p>

<p>Coubts. — Judiciary an Independent Department, — The judiciary is a separate and an independent department of government. Const., art. 3.</p> <p>Same. — Constitutional Powers. — The courts are exclusively invested by the Constitution with the whole judicial power of the State, as such power existed when the Constitution was framed. Const., art. 7, sec. 1.</p> <p>Same. — Assistants.—Selection of. — Neither the Governor nor the Legislature can select persons to assist the courts in the performance of their judicial duties.</p> <p>Same. — Courts Choose Assistants. — Where assistants are necessary to enable judges to discharge their judicial functions, the power to choose such assistants resides in the court.</p> <p>Same. — Power of Appointment. — While the power of appointment is intrinsically executive, it may be exercised by a court or by a legislative body as a necessary incidental power.</p> <p>Same. — Supreme Court Commissioners. — Legislature can not Appoint. — The Legislature can not appoint commissioners of the Supreme Court to assist the judges in the performance of their duties, and the act of 1889 (Acts of 1889, p. 41), assuming to confer that power, is unconstitutional.</p> <p>Same. — Supreme Court Commission Unconstitutional. — Commissioners of the Supreme Court are unknown to the Constitution, and the Legislature can not create such offices and invest the officers with judicial powers.</p> <p>Same. — Legislature can not Confer Judicial Powers. — No body not provided for by the Constitution can exercise any part of the judicial power of the State. The Legislature has no judicial power and can confer none.</p> <p>Same. — Duties of Supreme Court. — Can not be Delegated. — Under the Constitution (section 5, article 7), the Supreme Court must decide for itself all questions of law and fact, and none of its judicial duties can be delegated to any other body or performed by deputies.</p> <p>Same. — Judicial Deputy. — There is no such thing in jurisprudence as a deputy judge.</p>

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

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

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

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

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

<p>Evidence. — Long-Hand Manuscript of. — Bill of Exceptions. — Practice.—In order to make the official reporter’s long-hand manuscript of the evidence a part of the record, it must be incorporated in a formal bill of exceptions.</p> <p>Insteuctions to Juey. — Making Part of Becord. — Bill of Exceptions. — Practice. — Instructions which are not brought into the record by a bill of exceptions, or which are not signed by the judge and filed as a part of the record, will not be considered on appeal.</p>

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

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

<p>'Contract. — Partnership.—Agreement by Third Person to Pay Creditors.— Complaint. — A complaint by partnership creditors against the members of the firm and G., wherein it is alleged that G., for the purpose of aiding the partners to defraud their creditors, took possession of the partnership property, and in consideration thereof agreed to pay all the creditors of the firm a certain per cent, of their claims, but has failed to pay the plaintiffs any part of the sum due them, wherefore a money judgment is demanded, states a good cause of action against G. for the amount which he agreed to pay.</p>

<p>Dbaiktage. — Complaint to Enforce Assessment. — For a complaint by a com missioner of drainage to enforce the lien of a drainage assessment, which is held to be sufficient on demurrer, see opinion.</p> <p>Same. — Report of Commissioners. — Power to Set Aside. — While a drainage proceeding is in fieri, the court has power to set aside the report of the commissioners and order a further consideration of the petition, and its action in doing so is at most only erroneous, and can not be collaterally questioned.</p> <p>Same. — Parties.—Notice.—Where an answer to a complaint to enforce a drainage assessment alleges that the land affected was described in the petition for the drainage, but that the defendant was not named therein and neither had notice of nor appeared to the proceeding, but fails to show that he held the legal title to the land when the petition was filed, is bad.</p> <p>Same. — Purchaser Pendente Lite. — A purchaser of land during the pendency of a petition for drainage, from a grantor who is named in the petition and has notice thereof, is bound by the proceedings to the same extent as though he had held the legal title when the petition was filed and had been named therein and duly notified.</p> <p>Same. — Lien of Assessment. — Constructive Notice. — Under section 5 of the drainage act of 1883 (Acts of 1883, p. 179), the lien of an assessment attaches as of the date of the petition, and a purchaser pendente lite is affected with notice.</p> <p>Same. — Notice.—Presumption.—To a complaint to enforce an assessment, an answer alleging a purchase of the land by the defendant after the petition for drainage was filed, and that the defendant was not a party to the drainage proceeding and had no notice, is bad, as the presumption is that his grantor was a party and was duly notified.</p> <p>Same. — Exhibit.— When Deemed Amended. — Where an exhibit might have been amended in the trial court to conform it to the proof, it will be presumed, on appeal, that it was so amended.</p>

<p>State Finance. — Act Authorizing Loan. — Consiiiut-ional Law. — The act of March 11th, 1889 (Acts of 1889, p. 390), “ authorizing the'Governor, auditor and treasurer of State to make a loan for the purpose of carrying on the State government,” does not violate section 5 of article 10 of the Constitution, and is a valid law.</p> <p>Same. — “Casual Deficits.” — -Meaning of Term. — The term “To meet casual deficits in the revenue,” as used in section 5 of article 10 of the Constitution, which specifies the contingencies in which the Legislature may authorize a debt to be contracted on behalf of the State, means a deficit not designedly brought about, but one resulting from casual or occasional discrepancies between the revenues received and the amounts required to provide for the general welfare and carry on the State government in the ordinary way, which could not be foreseen and provided for without the accumulation of an unnecessary surplus in the treasury.</p> <p>Same. — Power of Legislature. — When its Action not Subject to Review. — While the power of the Legislature to authorize a debt to be contracted on behalf of the State does not exist until a contingency contemplated by the Constitution arises, yet when such a contingency has in fact arisen, or when the Legislature, without any apparent purpose to evade the Constitution, determines that it has, its action is not subject to review or liable to be controlled by the judicial department, unless it is evident at first blush that the conditions justifying the exercise of the power did not exist.</p> <p>Same. — Deficit May be Anticipated. — It is not necessary to the validity of an act authorizing the borrowing of money on behalf of the State that an actual deficit should exist at the time the act is passed, for a casual deficit, within the meaning of the constitutional provision, may he one that is anticipated and provided for, if it is foreseen that it must necessarily occur before other provisions for replenishing the public funds can be made available.</p> <p>Same.' — Method of Providing for Deficit. — Legislative Discretion. — It is a matter within the discretion of the Legislature as to what provision shall be made, whether by increasing the tax levy or by contracting a debt, in order to provide for an inevitable deficit.</p> <p>Same. — Title of Act. — The fact that it is recited in the title of an act that the loan thereby authorized is for the purpose of carrying on the State government, rather than to provide for a casual deficit, is immaterial.</p>

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

<p>Survey. — Title to Beal Estate. — New Trial as of Bight. — A survey had under the provisions of section 5955, B. S. 1881, does not determine the title to real estate, and a party is not entitled to a new trial as of right under section 1064, B. S. 1881.</p>

<p>Husband and Wipe.— Wife May Maintain Ejectment against Husband. — Under the statutes of this State, a wife may maintain an action of ejectment against her husband to recover the possession of her separate real estate.</p> <p>'■Same.— Wife’s Separate Beal Estate.— Void Contract. — A contract made by a married woman in 1866, whereby she agreed, in consideration that her husband should pay a claim against her separate real estate, that she would give him one-half of the land, to be held by them as joint tenants, was void under the law then in force (1 R. S. 1876, p. 550, section •5), and the husband acquired no enforceable right thereunder.</p>

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

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

<p>Written Instrument. — Delivery.— What Does not Constitute. — S. signed a deed, bill of sale and promissory note, and left them upon the table. He neither said nor did anything to indicate an intention to deliver them; on the contrary, the circumstances show that he did not want to execute ■ the writings at that time. He reserved the right to examine them on the next day, and it was agreed that if the.y were found incorrect, corrections should be made. While the papers were so lying upon the table, one of the persons named therein took them up and gave them to his clerk, with instructions to put them in his vault.</p> <p>Held, that there was no delivery.</p> <p>'Same. — Illegal Consideration. — Husband and Wife. — •Divoi'ce.—Collusive Agreement to Obtain. — Writings executed by a husband for the benefit of his wife, in pursuance of a collusive agreement between them, whereby the wife is to institute a divorce proceeding for a cause which does not exist, thus abandoning a cause which she claims to exist, and the husband will not resist the proceeding, but will aid in procuring the divorce to be granted, are upon an illegal consideration, and not enforceable.</p>

<p>Dbainage. — Oity.—Establishment of Ditch im,. — Jurisdiction.—Collateral Attack. — The jurisdiction o£ the circuit court to establish a ditch, under the drainage law of 1881, partly within the limits of an incorporated city, and levy benefit assessments upon city property, can not be questioned by a property-owner in a suit to collect an assessment.</p>

<p>Set-Oef. — May be Replied. — A set-off may be pleaded to a set-off.</p> <p>Peeading. — Bill of Particulars. — Where a bill of particulars is necessary to inform the adverse party of the nature of a claim set up in a pleading, the bill must be filed or the pleading will be bad on demurrer.</p> <p>Same. — Reply.—Demurrer to. — Form.—A demurrer to a reply, assigning as cause that “the reply does not state facts sufficient to constitute a good reply to the defendant’s answer to which it is directed,” does not comply with the statute (section 357, B. S. 1881), and is bad.</p> <p>Same. — Gonnplaint.—Arrest of Judgment. — Where the complaint contains one good paragraph, a motion in arrest of judgment will not lie.</p> <p>Same. — Objection to Evidence. —Setting Aside Verdict. — A party can not challenge the sufficiency of a pleading by objecting to evidence or by a motion to set set aside the verdict.</p> <p>Same. — Sufficiency of Gomplaint. — A complaint which entitles the plaintiff to some relief is sufficient on demurrer.</p>

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

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

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

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

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

<p>Slander.— Pleading.— Harmless Error. — Where no evidence is adduced tending to prove alleged slanderous words set out in a paragraph of complaint, an error in overruling a demurrer to such paragraph becomes harmless.</p> <p>Same. — Express Malice. — Exemplary Damages. — Where, in an action for slander, express malice is proved, the jury may assess exemplary as well as compensatory damages.</p> <p>Same. — Evidence of Other Slanderous Words. — Evidence of other or similar slanderous words, spoken at other times and places, is admissible to ■ show that the words charged in the complaint were spoken with malice. Same.— When Express Malice Exists. — Where the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations, there is express malice.</p>

<p>Husband and Wife. — Deed.—Jointure.—Rights of Widow as Heir. — A husband and wife united in conveying certain real estate to M., in trust, to be immediately conveyed by the latter to the wife, in lieu of all her interest in the other lands then owned or afterwards acquired by her husband, “ as her jointure in her said husband’s lands forever.” On the same day, M. executed and delivered to the wife a deed for the real estate described. The husband died some years later, the owner of other real estate, and leaving neither children nor father or mother, but leaving brothers and sisters of the half-blood only.</p> <p>Held, that the deeds were intended by the parties to operate as a jointure; that they affect the wife’s rights as widow only; and that, under section 2490, E. S. 1881, as against the brothers and sisters of the half-blood, she takes, as heir, the whole of the estate of which her husband died seized.</p>

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