Volume 119 — Indiana Reports

<p>Municipal Cobpobation. — Street Improvements. — Injury to Property-Owner by Water. — Liability of Corporation. — A municipal corporation is liable in damages if it collects water in an artificial channel and pours it upon the land of another; but it is not liable for consequential damages caused by the grading and improvement of its streets, unless the work be negligently performed.</p>

<p>Married Woman. — Separate Seal Estate. — Conveyance to Husband. — Mortgage. — Contract of Suretyship. — Estoppel.—Where a wife transfers her separate real estate to her husband, by conveyances importing a money consideration, for the purpose of enabling him to mortgage it, as his property, to secure a loan for his own benefit, she will be estopped, as against a mortgagee who is not shown to have had knowledge that the conveyances were a mere contrivance to evade the statute (section 5119, K. S. 1881) prohibiting her from entering into contracts of suretyship, from asserting that the transfer was not bona fide.</p>

<p>Pleading. — Special Denial. — Demurrer.—A paragraph of answer which pleads facts in negation of the material facts alleged in the complaint, is a special denial and is good on demurrer.</p> <p>Contbact. — Merger of Previous Negotiations. — Where a written contract is executed all previous negotiations and understandings are merged in the writing, and parol evidence is not admissible to vary or control its legal effect.</p> <p>Same.— Written Contract of Sale. — Conversion.—Evidence.—Where á writing, signed by A., evidences a sale of timber by him to B. and states the con- - sideration and its payment, the title thereby passes to B., and in an action by him against C. for the conversion of the timber it is not competent to prove by A. that he understood the writing to be a receipt, and that he supposed he was selling the timber to C., with whom he had previously negotiated its;sale by parol, B. merely paying the purchase price for the latter.</p> <p>Same. — Previous Parol Contract of Sale. — In such case C., will not be allowed to testify as to previous negotiations between himself and A., resulting in a parol contract for the purchase of the timber, nor as to an agreement between himself and B. whereby the latter was to pay the purchase-price for C., who was to work the timber into staves, repay B. the sum advanced, after which they were to divide the profits equally.</p> <p>Same. — Contract for the Sale of Growing Timber.- — Statute of Frauds. — Instructions. — A contract for the sale of growing timber is a contract for the sale of an interest in land, and must be in writing in order to bind either party. For instructions upon this subject, the refusal to give which is held to be error, see opinion.</p>

<p>Pleading. — Death of Party. — Amendment of Complaint.— Curable Defect.— Where, upon the death^of the defendant, the complaint is not amended so as to aver his death and the appointment of an administrator, but the administrator appears and answers, the defect in the pleading is a mere informality and not, under section 658, R. S. 1881, available for the reversal of the judgment.</p> <p>Seduction. — Publication of Wrong. — Aggravation of Damages. — In an action by an unmarried female for her own seduction it is proper to allege and prove, in aggravation of the damages, the publicity given by the defendant to the seduction.</p> <p>Same. — Complaint.—Recovery of General Damages. — Where the facts constituting the seduction are set out in the complaint, together with averments that the plaintiff was damaged by reason of -the publicity given by the defendant to the wrong “ and was otherwise injured,” the plaintiff is entitled to general damages.</p> <p>Same. — Keeping Company with Other Women. — Irrelevant Kmdence. — The fact that the defendant kept company with other unmarried women during the time when he was visiting the plaintiff and when it is alleged he accomplished her seduction, is not admissible in evidence in an action to recover for the seduction.</p> <p>'Same. — Instruction to Jury. — Declarations of Defendant. — Where there is evidence to which it is applicable, an instruction that the jury, in determining whether the preponderance of the evidence is with the plaintiff, may consider any statements made by the defendant in regard to the manner in which he accomplished the seduction and the conduct of the plaintiff at the time of the intercourse, is proper.</p> <p>■Same. — Fraudulent Conveyance. — Sale of Seal Estate.— Application of Proceeds. — In an action for seduction and to set aside an alleged fraudulent conveyance of real estate by the deceased defendant, the court has authority to order the sale of the real estate by his administrator, who has appeared as a party, but it may not direct the proceeds to be applied in payment of the judgment to the exclusion of other creditors.</p>

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

<p>New Trial. — Amount of Recovery. — Supreme Cov/i't. — Practice.—No question as to the amount of the recovery is presented to the Supreme Court unless it is assigned as a cause for a new trial.</p>

<p>Canals. — Abandonment.—Adjoining Owners. — Title to Canal Bed. by Prescription. — Where a canal, instituted by the State and afterwards conveyed by it to a corporation known as the Board of Trustees of the Wabash and Erie Canal, for public purposes, was abandoned as a highway, and possession was afterwards taken by abutting lot owners, who filled up the channel and rescued the property, at great expense and in good faith, from becoming a public nuisance, and retained exclusive and continuous possession for twenty years, they acquire title by prescription as against one asserting a mere private proprietary interest in the land formerly occupied by the canal.</p> <p>Same. — Property Held for Public Use. — Statute of Limitations.- — -The rule that the statute of limitations may not confer a title by prescription in property held for an unabandoned public use, as against the State, or as against one asserting the rights of the public, has no application where it is invoked as a means of securing a merely private advantage to be enjoyed by an individual.</p> <p>Same. — Title of Canal Trustees. — Extinguishment by Adverse Possession. — Whatever proprietary title the trustees of the Wabash and Erie Canal asserted to the canal property, distinct from the public use to which it was dedicated, was subject to be extinguished by adverse occupancy for the statutory period of twenty years.</p> <p>’Same. — Estoppel.—Alter abandoning the public use and renouncing its obligation to the public, neither the corporation nor its assigns can retain the fee and protect a proprietorship therein by appealing to the repudiated public use.</p> <p>Same.— What Constitutes Adverse Possession. — An entry upon land with the intention of asserting ownership to it, and continuing in the visible and exclusive possession under such claim, exercising those acts of ownership usually practiced by owners of such land, and using it for the purposes to which it is adapted, without asking permission and in disregard of all other conflicting claims, is sufficient to make the possession adverse, and if continued for twenty years is equivalent to a grant.</p>

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

<p>Railkoad. — Injwy to Animals. — Farm Crossing. — Negligence.—In the absence of negligence on its part, a railroad company is not liable for injuring animals which enter upon its track at a private farm crossing.</p> <p>Same. — Finding as to Character of'Crossing. — A finding that animals entered upon the railroad track “ at a point where the railroad crosses a cart-way, or private way, known as McQuiddy’s Crossing,” is equivalent to a finding that the entrance was effected at a private farm crossing.</p>

<p>Pleading. — Complaint.—Theory.-—Must he Good as to all Plaintiffs. — A complaint must proceed upon some definite theory, and must state facts sufficient to constitute a good cause of action in favor of all who join as plaintiffs, upon the theory on which it proceeds.</p> <p>Sheriff’s Sale. — Invalidity of. — Setting Aside Satisfaction of Judgment. — ReSale. — Parties.—Complaint.—The grantee of a purchaser at a sheriff’s sale, which is void because of a failure to observe the appraisement law, has no cause of action, as against those claiming the real estate, to set aside the satisfaction of the judgment and subject the property to re-sale or-to redeem from an alleged illegal tax s.ale, and a joint complaint for that purpose by him and his grantor, who is the owner of the judgment, is bad.</p>

<p>Pleading. — Motion to Strike Out Parts of. — Practice.—There is no available error in overruling a motion to strike out parts of a complaint.</p> <p>Same. — Complaint.—Negligence.—A complaint charging the defendant with negligence, whereby the plaintiff, without his fault, sustained great bodily injuries, is good on demurrer.</p> <p>Same. — Answer.—Demurrer.—Harmless P/rror. — There is no available error in sustaining a demurrer to a paragraph of answer where the same facts are provable under another paragraph, or where the paragraph to which the demurrer is sustained is merely a special denial.</p> <p>Supreme Court. — Transcript.—Omission of Evidence. — New Trial. — Presump- . lion. — Where the record shows upon its face that it does not contain all of the evidence, it will be presumed that the action of the trial court in overruling a motion for a new trial was right, where the causes assigned depend upon the evidence.</p>

<p>Pleading. — Complaint.—Defect of Parties.— Demurrer. — A demurrer for a defect of parties does not question the sufficiency of the complaint to state a cause of action in favor of all the persons who are joined as plaintiffs.</p> <p>Real Estate. — Action to Recover. — Complamt.—Judgment for Possession.— Absence of Prayer for. — A judgment maybe rendered for the possession of real estate, where the facts pleaded and proved entitle the plaintiff to that relief, although the complaint contains no specific prayer for possession.</p>

<p>Fraudulent Conveyance. — Complaint to Set Aside. — Averment as to Debtor’s Insolvency. — A complaint to set aside a conveyance as fraudulent as against creditors is bad if it fails to aver that the debtor, after the conveyance, had not sufficient property left to pay his debts.</p>

<p>Will.— Widow.— Election.— Waiver of Rights under the Law.— Where a testator by his -will disposes of all his property and makes provision for his widow, which she accepts, her right to the five hundred dollars allowed her by law is waived.</p>

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

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

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

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

<p>Chattel Mobtgage. — Conversion by Mortgagee. — Extinguishment of Mortgage Debt. — Where a chattel mortgagee, by virtue of a power reserved, takes possession of the mortgaged property and converts it to his own use, the mortgage debt is extinguished to the extent of the value of the property at the time of the conversion.</p> <p>Same. — Replevin.—Conversion.—Right of Mortgagor to Have Mortgage Can-celled. —Where a mortgagee, who has obtained possession of the mortgaged property by replevin proceedings, fails to return it upon judgment being rendered against him, and converts it to his own use, the same being of greater value than the mortgage debt, the mortgagor, in a suit to foreclose the mortgage, is entitled, by cross-complaint, to have the mortgage cancelled and the notes secured thereby adjudged satisfied.</p> <p>Kill of Exceptions. — Filing too Late. — When time is given until a day-named to file a bill of exceptions, a bill filed on that day is too late and -does not become a pari of the record.</p>

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

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

<p>From the Harrison Circuit Court. -</p>

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

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

<p>Judument. — Of Another State. — Action upon. — Loss of Complaint and Summons. — Proof of. — Deposition.—In an action in this State upon a judgment rendered in another State, the depositions of the attorneys who obtained the judgment, and of the clerk of the court in which it was rendered, are competent to show the existence, loss and contents of the complaint and summons, and of the sheriff’s return showing service upon the defendants.</p> <p>Same.' — Transcript.—Clerk’s Certificate. — Evidence.—The certification of the transcript of a judgment as a “true and correct copy” instead of as a “true and complete copy,” is good.</p> <p>Same.— Variance. — Where the judgment sued on and the judgment shown by the transcript introduced in evidence are substantially the same, there is no material variance.</p> <p>Same. — Court, of Another State. — Jurisdiction.—Presumption.—Where it appears that the court of another State which rendered a judgment sued upon in this State, was a court of record, having a judge, clerk and seal, its records and proceedings are brought within sections 454 and 472, R. S. 1881, and its jurisdiction and the regularity of its proceedings will be presumed until the contrary is shown.</p> <p>Same. — Evidence.—Formal Irregularities. — Mere formal irregularities constitute no ground for rejecting a duly certified record of a judgment of another State.</p>

<p>Pleading. — Amendment.— Waiver of Exceptions.- — Where a defendant, after a demurrer has been sustained to his answer, obtains leave to amend, and files another answer, he thereby waives the exceptions taken on the original pleading.</p> <p>Pbomissoby Note. — Beal Party in Interest. — Estoppel.—The maker of a promissory note is estopped from showing that the payee was not the real party in interest at the time the note was executed.</p>

<p>Infant.— Wrongful Death of. — Damages.—Right of Action. — Guardian.—Parent. — A guardian has no right of action for the wrongful death of his infant ward, except to reimburse the ward’s estate for expenditures which he has been required to make for care and medical attendance and funeral expenses, the right of action for general damages for loss of services, etc., being in the father or mother. Section 266, B. S. 1881.</p>

<p>Conversion. — Damages.—Complaint.—A complaint alleging the conversion by the defendant of property of a given value belonging to the plaintiff, shows that the latter is damaged to the value of the property, without a specific allegation to that effect.</p> <p>Same. — Insufficient Complaint. — A complaint for conversion which fails to allege either that the property converted was of any value, or that the plaintiff sustained any damage by reason of the conversion,'is bad.</p> <p>Practice. — Judgment upon Complaint Containing Bad Paragraph. — Supreme Court. — Where judgment has been given for the plaintiff generally, without showing upon what paragraph of his complaint, error in overruling a demurrer to a bad paragraph will cause the reversal of the judgment, as the Supreme Court will not look to the evidence to determine whether or not injury resulted from the ruling.</p>

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

<p>Railroad. — Right of Wag. — Injunction.—Ejectment.—Estoppel. — Assessment of Damages. — A land-owner who stands by, without demanding compensation, until a railroad is in operation and the public interests are involved, can neither enjoin the company nor maintain ejectment proceedings, his only remedy being a proceeding for the assessment of damages.</p>

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

<p>Bepdevin Bond. — Action wpon. — Complaint.—Deject of Parties. — Where a complaint upon a replevin bond by one of two obligees alleges that the obligee who is riot joined as plaintiff has no interest in the action, a demurrer for defect of parties plaintiff is not well taken.</p> <p>Same. — Costs.—Right to Recover. — In an action upon a replevin bond the plaintiff' is entitled to recover the- costs made by him and for which he became liable in the replevin proceedings, but he is not entitled to recover the costs made by the adverse party.</p> <p>Same. — Recovery Limited by Penalty. — The recovery upon a replevin bond can not exceed the penalty of the bond, and a judgment for more is erroneous.</p>

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

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

<p>Pleading. — Negligence.—Facts Constituting. — A failure to state, in detail, the facts constituting negligence, does not render a complaint bad on demurrer.</p> <p>Interrogatories to Jury.— What Improper. — Interrogatories to the jury, which call for answers as to mere matters of evidence and not facts, are improper.</p> <p>Former Recovery. — Evidence.—Pleading.—Where the only answer pleaded to the cause of action stated in one paragraph of complaint is a general denial, evidence of a former recovery under a plea addressed to another paragraph is not available.</p>

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

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

<p>Insubance. — Ocewpaney of Property.-, — Where a complaint upon a policy of insurance, covering a barn, farming implements, hay, grain, stock, etc., alleges that on a certain day the barn, and the other property covered by the policy and in the barn at the time, were destroyed by fire, it sufficiently appears that the building was occupied at the time of its destruction.</p> <p>Same. — Complaint upon Policy. — A complaint averring that the property insured was the plaintiff’s property at the time the policy was issued, that it was on his premises when it was destroyed by fire, that the plaintiff was damaged to the value thereof, and that he had performed all the terms of the contract on his part, states a cause of action.</p> <p>Same. — Burden of Proof. — In an action upon a policy of insurance, the plaintiff need not aver the truth of statements contained in the application, nor the performance or non-performance of conditions subsequent, nor negative prohibited acts; but it is sufficient for him to show fulfilment of the conditions of recovery, and the burden is then upon the defendant to show a breach of warranties.</p> <p>Same. — Divisibility of Policy. — Where a policy of insurance covers several items of property, and the property is so situated that the risk on one item can not be affected without affecting the risk on the other items, such policy is entire and indivisible; but if the property is so situated that the risk on each item is separate and distinct, the policy is several and divisible.</p> <p>Same. — False Representations. — Divisible Risk. — Where a policy covers a barn and its contents, and a dwelling and its contents, it is several and divisible as regards the barn and house, and false representations as to the condition of the house will not avoid the policy as to the barn and its contents.</p> <p>Same. — Condition Against Encumbrances. — A provision in a policy, that “if the property shall hereafter become mortgaged or encumbered, this policy shall be null and void,” relates to liens voluntarily placed upon the property by the insured, and does not apply to judgments or other liens created by law.</p> <p>Same. — Overvaluation.—A policy of insurance will not be avoided on account of a breach of warranty as to the value of the property involved, unless the breach is a substantial one.</p> <p>Instkuctions to Juey. — Burden of Proof. — Where the defendant has withdrawn the answer of general denial, an instruction that the plaintiff is entitled to recover, unless the defendant has proved an affirmative defence by a preponderance of the evidence, is right.</p>

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

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

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

<p>Deed. — Description.-—-Mistake.— When Deed not Void. — The omission from, the description contained in a deed of the name of the State in which the land is situate does not render the deed void, if, taking all the facts appearing upon its face, with the legal presumptions which flow from them, a true description may be supplied by the aid of averments and proof.</p> <p>Same. — Beforrmatim.—Breach of Covenant of Seizin. — Damages.—In such a case, it is not essential to the grantee’s right to recover damages for a breach of the covenant of seizin that the deed should first be reformed; the deed not being void, it is only necessary that the identity of the land described be proved, under proper averments, and that a breach of the covenant, with resulting damages, be shown.</p> <p>Same. — Mistake of Fact.— What is. — It is a mistake of fact when, through ignorance, inadvertence, negligence or otherwise, the description in a deed does not in fact embrace the land which the parties intended it should, and which they supposed it did.</p> <p>Same. — Executed in Another State. — Proof of Statutory Sufficiency. — Whether a deed was executed in conformity with the statute of the State in which it purports to have been executed, so as to constitute a valid conveyance, is susceptible of proof under an averment that the deed was executed and the land conveyed by the grantor.</p>

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

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

<p>Omy. — Public Bridge. — Duly to Repair. — Liability for Injwy. — It is the duty of a city, in this State, to keep a public bridge, within its limits and of which it takes control, in repair, although such bridge may have been originally built and maintained by the county as part of a public highway, and its failure 'to do so renders it liable to one who suffers injury without contributory negligence.</p> <p>Same. — Gounty Bridge. — Acceptance by City. — A bridge constitutes part of the highway upon which it is situate, and a city, by taking charge of and improving the highway, accepts and becomes charged with the maintenance of a bridge constructed thereon by the county.</p>

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

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

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

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

<p>Railroad. — Right of Way.— Width. — Contract.—Evidence.—Acts and Declarations of Parties. — Where a railroad company acquires aright of way by contract with a land-owner, and the width of the land granted'for such right of way is not fixed by the contract, the declarations and acts of the parties are admissible in evidence to fix such width.</p> <p>Verdict. — Answers to Interrogatories.— When Control General Verdiet.— Answers of the jury to interrogatories overthrow the general verdict, only when there is such antagonism upon the face of the record as is beyond the possibility of being removed by any evidence legitimately admissible under the issues in the cause.</p>

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

<p>Argument oe Counsel. — Misconduct.—■ When Error can not be Alleged.— . Where the trial court, upon objection being made to improper argument, does all in its power to relieve the party from any injury likely to result from the misconduct of counsel, there is no action upon which error can be predicated.</p> <p>Evidence. — Exclusion of. — Question on, Sow Reserved. — Practice.—In order to reserve a question upon the exclusion of testimony, a pertinent question must be propounded to the witness, anil, upon objection, a statement made to the court as to the testimony which will be given in answer thereto, and an exception must be reserved at the time the ruling is made.</p> <p>•Slandeb.— Unmarried'Female. — Abm'tion.—Examination of Person by Medical Experts. — Wliere, in an action by an unmarried woman for slander, it is alleged that the defendant had spoken of the plaintiff that she was a whore, and had become pregnant, and had suffered an abortion to be procured upon her, the defendant is not entitled, under a plea of justification, to an order requiring the plaintiff to submit her person to an examination by medical experts.</p>

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

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

<p>Decedents’ Estates. — Olairn Against. — General Denial. — Defences Admissible Under. — Where a general denial is filed to a claim against an estate, all matters of defence, except set-off and counter-claim, may be given in evidence thereunder.</p> <p>Mortgage. — Foreclosure.—Parties.—Assignee in Bankruptcy.— Void Sale.— Satisfaction of Judgment. — Where a mortgagor becomes bankrupt and conveys his property, including that described in the mortgage, to an assignee, the latter is a necessary party to a suit to foreclose the mortgage, and a sale under a decree given in a suit to which he is not a party is void, does not satisfy the judgment, and is not a bar to an action thereon.</p> <p>Judgment. — Res Judicata. — Estoppel.—Where a judgment debtor institutes an action to have the judgment declared satisfied, it is his duty to bring forward any matter, then existing, which will entitle him to the relief sought, and all matters which he might have adduced in that proceeding, but omitted, are barred by the judgment then rendered, and can not be litigated in an action against his representatives upon the original judgment.</p>

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

<p>Will. — Interpretation.—Intention.—Whatever method may be resorted to for the interpretation of a will, it must be applied solely with a view to arrive at the intention of the testator, as his intention may be gathered from the language found in the instrument itself.</p> <p>Same. — Latent Ambiguity. — A latent ambiguity, which will justify the admission of evidence of extrinsic facts, is one which may arise, not upon the face of the will itself, but from facts therein referred to, which are extrinsic to the instrument.</p> <p>Same. — Evidence.—Extrinsic Facts. — Whenever, in applying a will to the objects or subjects therein referred to, extrinsic facts appear which produce a latent ambiguity, the court may inquire into every other material extrinsic fact or circumstance to which the will refers, and to the relation which the testator occupied to those facts, in order to arrive at a correct interpretation of the language actually employed.,</p> <p>Same. — Presumption that Words are Used in Primary Sense.— When Contrary May be Shown. — A testator is presumed to have used the words in which he expressed his intentions according to their strict and primary acceptation, and if, when applied to the extrinsic facts referred to, they are sensible, parol evidence is not admissible to show that they were used in some other sense; but it is otherwise if the words, in their strict and primary sense, are meaningless when applied to such extrinsic facts.</p> <p>Same. — Notes Executed, by Legatee to Testator.— When Discharged. — Ambiguity. —Extrinsic Evidence. — A testator bequeathed “to Philo Rogers, the young man I raised, in addition to what I have already given him, the further sum of five hundred dollars.” At the time the will was executed the testator held six notes against Rogers, aggregating six thousand dollars. Upon his death they were found among his assets, and suit was brought thereon by his administrator against Rogers. The defendant answered that he had been reared in the family of the testator, who was a man of fortune, and who had often expressed an intention to make liberal provision for the defendant; that the testator had, prior to the execution of the will, advanced money to the defendant in anticipation of the testamentary provision which he intended to make for him, taking the notes in suit merely as memoranda of the amounts and dates; that no other money or property had ever been given to him by the testator; that the words “ in addition to what I have already given him,” employed in the will, had reference to the money represented by the notes, and that the will released and extinguished such notes.</p> <p>Held, that evidence to sustain the answer, including declarations made by the testator, was admissible, a latent ambiguity being developed by the extrinsic facts referred to in the will, and that, upon proof of the facts alleged, a judgment for the defendant was proper.</p> <p>Held, also, that as the word “ given,” used in the will, if taken in its strict and primary sense, is meaningless when applied to the extrinsic facts referred to, it was competent to show that it was used in the secondary sense of “ furnished ” or “ supplied.”</p> <p>Berkshire, J., and Olds, J., dissent.</p>

<p>Circuit Court. — Adjourned Term.- — Irregularity.— Waiver of Objection. — A party who is in court by counsel when an order for holding an adjourned term is made, and has knowledge of the time determined upon, of the appointment of a special judge to hold said term, and of the setting of his case for trial at said term, but fails to make objection, waives the right to afterwards object that such adjourned term was illegal, as falling within the time for holding court in another county in the same circuit.</p> <p>Deed. — Delivery.—Non Est Factum. — Where, in an action founded upon a deed, there is no plea of non est factwm, the execution of the deed, including its delivery, is admitted.</p> <p>Same. — Mistake in Grantee’s Name. — Estoppel.—Where a deed conveying a right of way is delivered to and accepted by a railroad company, which thereafter asserts title to the land thereby conveyed, it can not repudiate the covenants of the deed on the ground that the grantee was not properly named.</p> <p>Same. — Parol Evidence. — It is competent to prove by parol the facts connected with the preparation of a deed; and, where there is a mistake of fact, it is proper to prove the contract between the parties.</p> <p>Bailroad. — Agreement to Suild Fences. — Measure of Damages. — For the breach of a contract by a railroad company with a land-owner to fence its right of way, the cost of erecting the fence, and also special damages for animals killed, for damage done by trespassing animals, and for the ■ loss of pasturage, may be recovered.</p>

<p>Railboad. — Negligence.—Accumulation of Combustible Material on Bight of Way. — Destruction of Adjoining Property. — If a railroad company negligently permits grass and other combustible matter to accumulate upon its right of way, and fire, emitted from one of its passing locomotives, falls upon and ignites such combustible matter and from thence spreads to the land of an adjoining proprietor and destroys his property, without any fault on his part, it is liable for the loss sustained.</p> <p>Same. — Adjoining Proprietor. — Not Bound to Keep Grass Burned off his Premises. — A person owning land adjoining a railroad is not bound to keep the grass burned off of his land between his hay-stacks and the right of way, and his failure to do so does not constitute negligence.</p> <p>Tenants in Common. — Craps.—Destruction by Third Person’s Negligence.— Bight of Action. — Where, under an arrangement between the owner of land and another person, the latter harvests the hay grown upon the land and gathers the whole of the yield into stacks, he to have three-fifths of the hay and the owner of the land two-fifths, the parties become tenants in common of the hay, and if it is destroyed by the negligence of a third person prior to a severance of their interests, they may maintain a joint action for damages.</p> <p>Same. — Severance of Interests.— What Sufficient to Constitute. — Prior to the destruction of the hay, each stack was measured and marked so as to leave three-fifths of the stack on one side of the division line and two-fifths on the other, the first portion being designated as that of the harvester and the second as that of the owner of the land, and it was agreed that either party could, at his convenience, cut the stacks and take the portion belonging to him. At the time of the destruction of the hay, no severance of the stacks had taken place.</p> <p>Held, that the common ownership continued until there was a manual separation or division of the property.</p> <p>Supreme Court.— Assignment of Error. — Practice.—The giving or refusing to give instructions, and the overruling of a motion to strike out part of a verdict, can not be independently assigned as errors in the Supreme Court, but must be assigned as causes for a new trial in the motion therefor, and thus brought up for review.</p> <p>Verdict. — Special.— Venire de Novo. — Practice.—An objection that a special verdict, which is otherwise sufficient, does not cover the issues in the cause, or so far cover them that the plaintiff is entitled to a judgment, is not presented by a motion for a venire de novo, but by a motion for a new trial or by a motion for judgment on the verdict.</p> <p>Same. — Omission of Facts. — Harmless Error. — When a special verdict contains no finding as to certain facts alleged in the complaint, such facts will be regarded as found against the plaintiff, and the refusal of the court to give instructions asked by the defendant relating to such facts is at most a harmless error.</p> <p>Same. — Motion to Strike Out. — A motion to strike out part of the verdict of a jury will not lie, but if the part objected to is immaterial it will be treated by the court as surplusage.</p> <p>Same. — Instructions.—Where a special verdict is demanded, it is improper to instruct the jury generally concerning the law of the case, but they may be instructed as to the nature of the action, the issues, the form of the verdict and their general duties.</p>

<p>Fbaud. — Special Finding. — Where fraud is essential to the existence of a cause of action, the plaintiff will fail if it is not found and stated in the special finding as a substantive fact.</p> <p>Read Estate. — Parol Contract to Convey. — Heirs.—Creditors.—A parol agreement for the conveyance of land, if valid between the parties, can not be successfully assailed by their heirs or grantees, even if fraudulent as to creditors.</p> <p>Same. — Adverse Possession. — Title.—-Adverse possession for twenty years, under claim and color of right, gives a perfect legal title in fee simple, without regard to the occupant's reasons for not taking a conveyance.</p> <p>Saxe. — Purchaser.—Inquiry.—One who buys real estate with knowledge that a third person is in possession, is put upon inquiry as to the rights of the latter.</p> <p>Same. — Character of Possession. — A purchaser has no right to suppose that a son is in possession as heir, when the latter’s possession began many years before the father’s death.</p>

<p>Insurance. — Indivisible Sisk. — Breach of Warranty. — A policy of insurance covering a house and the personal property therein is entire and indivisible, and a breach of warranty which will avoid the policy as to one class of property will also avoid it as to the other.</p> <p>Same. — Divisible Sisk. — Where a policy of insurance covers two or more buildings, which are so situated that the risk on each is separate and distinct, the policy is a divisible one, and breaches of warranty affecting the risk on one building constitute no defence to an action for the destruction of another.</p> <p>Same. — Condition of Properly. — Encumbrance.— Value. — Warranties that an insured house is twelve years old, when it is thirty, that the encumbrance on the land upon which the house is situate is $1,000, when it is $2,200, with a large accumulation of interest, and that the house is worth $100, when it is worth only $250, will avoid the policy.</p> <p>Same. — Agent.—Filling Blanksin Application. — Scope of Authority. — An agent, authorized to take applications for' insurance, acts within the scope of his authority when he fills out a blank application, and if, by his fault or negligence, it contains misstatements not authorized by the instructions of the applicant, the wrong will be imputed to the company.</p> <p>Same.— Writing False Answers. — Estoppel of Company. — Where an agent, authorized by his company to take applications for insurance, writes false answers to questions contained in the application, without the knowledge and contrary to the directions of the applicant, who makes true answers to such questions, the company is estopped by the answers thus written by its agent.</p> <p>Same.— Value of Property. — Honest Judgment of Insured. — Questions of value, when applied to real estate, are from necessity matters of mere opinion, and if the applicant for insurance gives the value of the property according to his honest judgment and opinion, there is no breach of warranty.</p> <p>Same. — Notice of Loss.— Unreasonable Delay. — Evidence.—A provision in a policy requiring notice of loss to be given forthwith is void under section 3770, R. S. 1881, yet the assured is required under the policy to give notice within a reasonable time. An unexplained delay of fifty days is unreasonable, and the notice may be excluded from evidence.</p> <p>Same. — Diligence.— When Question for Jury and When for Court. — Where the facts constituting diligence in giving notice are in dispute, what is a reasonable time is a question for the jury, under proper instructions; but where the facts are not in dispute, the question is for the court.</p>

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

<p>Will-.— Widow. — Emblements.—-A testator’s will provided that his wife should receive during her life one-third of all- grain raised on certain land, the same to be delivered to her in the county at any point she might designate, as soon as it should be harvested and prepared for the market according to good husbandry. The title to the land and the right of possession were vested in other persons. The provision for the widow’s benefit was made a charge upon the land. She regularly received from the occupants of the land one-third of the grain harvested up to the time of her death, which occurred in the month of May, several years after the testator’s death. Her administrator now seeks to recover the value of one-third of the crops planted prior to her death but not harvested and prepared for the market until after that time.</p> <p>Held, that as the time for harvesting and delivering the grain, as provided in the will, had not arrived at the time of the widow’s death, there was nothing to go to her legal representatives, and that the action can not be maintained.</p>

<p>Pleading. — Answer m Confession and Avoidance. — An answer in confession and avoidance is not had for failing to confess the cause of action precisely as it is alleged; it is sufficient if it confess a prima facie cause of action.</p> <p>Bank. — Suspension of. — Deposit of Another’s Money in Depositor’s Name. — Liability. — One who collects money for another and deposits it in his own name in a bank believed to be solvent, is relieved from liability for loss caused by the failure of the bank if the person entitled to the money, with knowledge of the facts, receives from the depositor the certificate of deposit in satisfaction of the latter’s obligation.</p> <p>■Same. — Deposit by Gratuitous Collector. — notification.—Where one gratuitously collects money for another and in good faith deposits it in his own name in a bank of good repute for solvency, and the person entitled to the money receives the certificate of deposit and ratifies the depositor’s acts, with knowledge of all the facts, the latter is not liable for loss caused by the suspension of the bank.</p> <p>■Same. — Evidence,—Solvency of Banh, — Separation of Accounts.' — -In such a case, evidence as to the business and solvency of the bank, and that at the time of the deposit the depositor also deposited money of his own, the two accounts being kept separate, was proper.</p> <p>Instructions to Jury. — Detached Clause.— Attach Upon. — An attack upon a detached clause of an instruction will only avail when such clause makes the entire instruction erroneous.</p>

<p>Verdict. — For Defendant.— When Gourt May Direct. — The trial court may direct a verdict for the defendant when the essential facts showing that the plaintiff has no right to recover are not controverted, or where the plaintiff’s evidence, with its legitimate inferences, is insufficient to sustain a verdict in his favor.</p> <p>RaiiboAD. — Public Crossing. — Animals.—Contributory Negligence of Owner.— Where the owner of animals permits them to run at large, unattended, ' in the vicinity of a railroad crossing, he is guilty of contributory negligence which will defeat an action for their negligent killing by a passing train, notwithstanding an order of the board of county commissioners allowing cattle to run at large.</p> <p>Same.— When Railroad Company Not Negligent.— Wilful Injury. — If the statutory signals are given, and reasonable efforts made, in the customary manner, to frighten away animals which are seen upon a public crossing, the railroad company has done all it is required to do, so far as the owner of the animals is concerned. To make it liable, an actual or constructive intent to commit the injury must be alleged and proved.</p>

<p>Assault and Battery. — Damages.—School Teacher. — Township Trustee.— School Director. — Where a township trustee and a district school director, upon the refusal of a duly employed teacher to allow a vacation of the school for a time, which they and certain patrons of the school have demanded, enter the school-house, of which the teacher is in rightful and peaceable possession, seize the latter and pull, drag and throw him out of the building, inflicting serious injuries upon him, they are guilty of a wrongful assault and battery and are liable for damages.</p> <p>Same. — License to Teach. — Special Finding. — In such a case, it is not necessary to the maintenance of the action that the special verdict should show that the plaintiff was a licensed teacher when the school term began ; but if it were, a finding that he was employed by the trustee, whose-legal duty it was to employ only qualified persons, that he was licensed when the contract was made and that his license had not been revoked when a successor in the school was employed after his injury, would be sufficient.</p> <p>Same. — Employment of Teacher. — A finding that the plaintiff was employed as a teacher by K., who was at the time trustee of the township, sufficiently shows that the employment was by the school trustee, the township trustee being ex officio school trustee.</p>

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

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

<p>Pleading. — Answer.—Exhibit.—A deed which is filed as an exhibit with an answer, but which is not the foundation of the defence pleaded, is not a part of the answer, and can not be looked to in determining its sufficiency.</p> <p>SAME. — Reply.—References to Exhibit. — Where the substantive averments of a reply consist of references to an exhibit filed with the answer, but constituting no part thereof, the reply is bad.</p> <p>Decedents’ Estates. — Conveyanceby Heir. — Administrator’s Sale. — Parties.— An heir, who has conveyed his interest in a decedent’s real estate, is not a necessary party to an application by the administrator for an order to sell such real estate, and if not a party is not concluded by the proceedings.</p> <p>Same. — Failure of Tille. — Laches of Grantee. — Promissory Note. — In such case, in an action by the grantor heir against his grantee upon a purchase-money note, a reply to the defence of a failure of title, that the defendant had assumed to pay the indebtedness to pay which the real estate was sold by the administrator, but had failed to do so, is good.</p>

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

<p>Will. — Partial Intestacy.— Widow. — Election to Take under Law. — Descent.— Where a widow refuses to accept the provision made for her by her husband’s will and elects to take under the law, she takes one-third of his land in fee, and, if he leayes no child and no father or mother, she also takes, under section 2490, R. S. 1881, any portion of his estate left undisposed of by the will, and no more.</p> <p>Same. — Contest of. — Mental Capacity. — Evidence. — Physician’s Privileged Knowledge.— Waiver of Pmvilege. — In a proceeding to contest a will on the ground of the mental incapacity of the testator, the executor or administrator, as the legal representative of the patient, and seeking to maintain the will, has the right to waive the privileged character of knowledge acquired by a physician, while attending the testator in his last illness, as to the latter’s mental condition, and call him as a witness to testify as to such mental condition when the will was executed.</p> <p>Evidence. — Exclusion of Testimony.. — Saving Question Upon. — Practice.—-In order to save any question upon the exclusion of testimony, a proper question should be asked, and, upon objection being made, the fact expected to be proved by the witness should be stated to the court.</p> <p>Interrogatories to Jury. — Submission of. — Time of Ashing. — Presumption. —Everything will be presumed in favor of the action of the trial court, and if it does not appear by the record at what time the court was asked to submit interrogatories to the jury, its refusal to submit them will not be reviewed.</p>

<p>ReaIi Estate. — Mortgage.—Description.— Words Expressing Qucmtity. — A mortgage contained a description of a part of lot 10, block 37, in tbe city of Indianapolis, tbe metes and bounds given making 45 feet and 6 inches on Delaware street, by 163 feet and 7 inches in depth. It also included other ground, described as “ also, fourteen feet and six inches (14 ft. 6 in.) off the south side of lot eleven (11) in said square thirty-seven (37), of the city of Indianapolis, being in all sixty (SO) feet front cm Delaware street, by one hundred and sixty-three feet and six inches in depth.” Lot 11 was, in fact, 196 feet in depth. The mortgage was foreclosed and the land sold, the description as given being carried through all the proceedings.</p> <p>JHeld, that the words italicised are not words of description, qualifying the preceding words, but words expressing quantity merely, and that a strip of ground off the south side of lot eleven 14 feet and 6 inches wide by 196 feet in depth passed by the mortgage and sale.</p>

<p>Eeceivee. — Appointment of. — Replevin.—Non-Residence.—The circuit court may appoint a receiver of personal property within its jurisdiction and involved in a pending action, although the defendant may reside in another State.</p> <p>Same. — Pending Action. — Defective Notice. — There may be a pending action, so as to authorize the appointment of a receiver, although the notice or service is defective.</p> <p>■Same. — Special Appearance. — A special appearance, made for the purpose of moving to quash the notice, constitutes a step in a pending action.</p> <p>.Same. — Power of Appointment. — Section 1270, It. S. 1881, does not determine the right of the court to appoint a receiver in actions of replevin, but such section must be taken in connection with section 1222, which •authorizes the appointment of a receiver, without regard to the form, •of the action, wherever justice requires it.</p>

<p>Common Carrier. — BUI of Lading. — Contract.—Merger.—Parol Evidence.— A bill of lading being both a receipt and a contract, it may, so far as it is in the nature of a receipt, be explained or contradicted by parol; but so far as it is a contract it merges all prior and contemporaneous agreements, and, in the absence of fraud, concealment or mistake, and ■ when free from ambiguity, its terms or legal import can not be explained or added to by parol.</p> <p>Same. — Compensation of Carrier. — Stipulation in Bill of Lading. — B/ule Where Amount of Charge is Omitted. — Legal Implication. — Previous Oral Contract.— I Where a bill of lading contains a stipulation as to the amount to be \ charged for transportation, it is, in the absence of fraud or mistake, con-I elusive upon the shipper; and where the amount to be charged is not ¡stated in the bill of lading, the law implies as a part of the contract jthat the carrier shall have a reasonable compensation, such as is commonly or customarily charged others for like services under like conditions, and evidence of a previous oral contract fixing the charge is not admissible.</p>

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

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

<p>Cbimibai, Law. — Desecration of the Sabbath.— Work of Necessity. — Barber.— Shaving Customer m Sunday. — Whether the shaving of a customer, by a barber, on Sunday is a work of necessity, within the meaning of the exception contained in the statute prohibiting the desecration of the Sabbath, is a question of fact for the determination of the jury, under proper instructions from the court.</p>

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

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

<p>Criminal Law. — Affidavit.—Motion to Quash. — Agreement as to Grounds of Objection. — An agreement between the prosecuting attorney and the counsel for the accused as to what objection is made to the affidavit, can not be regarded, and if the affidavit is bad it will bé so held, without reference to the ground upon which the motion to quash is rested.</p> <p>Same. — False Representations.— When not Criminal. — A criminal prosecution can not be based upon false representations which are not of such a character that a man of common understanding is justified in relying upon them.</p>

<p>Supreme Court. — Record.—Omission of Evidence.— Questions Eot Considered. — Where the record does not contain all of the evidence, questions depending upon the evidence will not he considered.</p>

<p>Constitutional Law. — Legislative Power. — Enactment of Laws. — The authority of the Legislature in the enactment of laws is subject to no restrictions except such as are imposed by the Constitution of the State, the Constitution of the United States, and the laws and treaties made in pursuance thereof.</p> <p>Same. — Statute.—Construction of. — A statute must be construed so as to uphold it, if that he fairly possible; and if it he of doubtful constitutionality, the doubts are to he resolved in favor of the enactment.</p> <p>Same. — Appointment to Office. — Power.—Executive Department. — While the appointment to office is in its nature an executive act, the exclusive right to exercise the power of appointment is not included in the general grant of power to the executive department.</p> <p>Same. — Power of Appointment. — By whom May he Exercised. — The general power to choose, elector appoint officers is not inherent in the executive or any other branch of the government, hut is a prerogative of the people, to he exercised by them or by those departments of the government to which it has been either expressly or by necessary implication confided or reserved in the Constitution, and neither the people nor those to whom the power has been confided can exercise such power except in conformity with the Constitution and the laws enacted in pursuance thereof.</p> <p>Same. — Law Emjoinedby Constitution. — Force of. — A law enacted in obedience • to and in execution of the express command of the Constitution, which is not in palpable violation of some express constitutional provision, is of as high sanction as though it were found in that instrument.</p> <p>Same. — Hospital for Insane. — Legislature May Appoint Officers of. — As the Constitution enjoins upon the Legislature the duty to make provision by law for the support and maintenance of an institution for the treatment of the insane, this is equivalent to an express grant of authority to provide for the selection of all such agents or officers as that body may deem necessary to accomplish the duty imposed, and it may either appoint such officers or agents itself or commit the power to do so to the Governor’.</p> <p>Same. — Settled Construction of Provision. — Beadopiion in New Constitution.— Effect of. — Where a constitutional provision 'has received a settled judicial construction, or a uniform legislative exposition, which has been acquiesced in by the other departments and the people, and such provision is afterwards incorporated in a new Constitution, it will he presumed that it was adopted with knowledge of the construction it had previously received, and the courts will adhere to such construction.</p> <p>.'Same. — Power of Appointment. — Practical Construction of Constitution. — As the Legislature, with the acquiescence of the people and the other departments, uniformly construed the similar provisions of the old Constitution and of the new to confer upon it the power to appoint the trustees for the State hospital for the insane, that construction is now conclusive, and can not be questioned.</p> <p>Same. — Authentication of Act. — Absence of Governor's Signature. — Presumption. —Where an act, which does not have the signature of the Governor, is certified by the legal custodian, and is properly authenticated and complete in form, judicial investigation is at an end, the conclusive presumption being that the act became a law in some constitutional method, without the approval, or notwithstanding the disapproval, of the Governor.</p> <p>Same. — Extraneous Facts not Admissible. — The validity or proper authentication of an act can not be brought in question by instituting an inquiry of fact into matters extraneous to the act itself.</p>

<p>Mortgage. — Foreclosure.—Subsequent Purchaser. — Taxes and Improvements.— Attorney.— Unauthorised Contract of Settlement. — Ratification.—Deed.—Where it' is adjudged, in an action by A. to foreclose a mortgage that he shall pay to B., who is a subsequent purchaser, a certain sum of money for taxes paid and improvements made by the latter, and that B. shall thereupon execute a deed to A. for the real estate, and afterwards A.’s attorney, although having no authority to that end (of which want of authority B. is ignorant), enters into a contract with B. that the payment of the judgment and the delivery of the deed and possession of the real estate shall constitute a full settlement of the matters in controversy between the parties, and the money is thereupon paid, the deed executed and possession of the real estate delivered, A. can not, upon a subsequent reversal of the judgment on appeal, he having received and retained the benefits of the contract, and thereby ratified the same, recover from B. the money paid.</p>

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

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

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

<p>Mandamus. — Jurisdiction.—Inferior Court. — Correction of Record. — A writ of mandate may not be issued by the circuit court to compel a county auditor to correct an erroneous description of land appearing in the records of the board of county commissioners in a drainage proceeding had before such board.</p> <p>Same. — Proper Remedy. — Appeal.—In such case the proper remedy is by an application to the board of commissioners, and the circuit court can only acquire jurisdiction by appeal from the judgment of the board.</p>

<p>Costs. — Judgment for. — Right to Enter after Final Disposition of Cause. — Change of Venue. — Failure to Perfect. — Where, upon the failure of a party to perfect a change of venue applied for by him, the court sustains a motion to tax the costs against him, as provided in section 413, B. S. 1881, and the sustaining of the motion is entered of record, but no judgment for such costs is rendered, the court has jurisdiction, upon a proper application made by the adverse party after the dismissal of the cause, to then enter the judgment.</p>

<p>Decedents’ Estates. — Olaim.—Allowance.—Employment of Comsel to Resist. —Conclusive Adjudication. — Sale of Real Estate. — Where persons claiming an interest in real estate, as the grantees of a decedent’s heirs, employ counsel to assist the administrator in resisting the allowance of a claim filed against the estate, an adjudication that the claim is valid is conclusive upon them, and they can not afterwards bring it in question in a proceeding by the administrator to sell the land to pay debts.</p> <p>Same. — Evidence. —Record of Allowance. — -The record of the allowance of a claim against the estate of a decedent is prima facie evidence of the validity and amount of the claim.</p> <p>Evidence. — Offer to Introduce. — Practice.—To present any question upon the exclusion of evidence, the offer to introduce it must be specific; if the evidence is parol, the witness should be put upon the stand and questioned, and the testimony expected stated; if the evidence is documentary, it should be identified and then offered.</p>

<p>Appeal. — Highway Proceedings. — Adverse Report of Reviewers. — An appeal will not lie from the board of commissioners where the reviewers report . against the public utility of a proposed highway, the remedy of the petitioners being to file a bond for costs and-petition over.</p>

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

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

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

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

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

<p>•Criminal Law. — Affidavit Not Sumn to. — Motion to Quash. — A paper purporting to be an affidavit charging the offence of assault and battery, but not sworn to, is bad on a motion to quash.</p>

<p>Mobtgage. — Foreclosure.— Disputed Ownership. — Judgment on Pleadings.— Where, in a suit to foreclose a mortgage, the mortgagor brings the amount due into court, the plaintiff is not entitled to a judgment on the pleadings against him until an issue joined between the plaintiff and another defendant as to the ownership of the mortgage is determined.</p> <p>Biel oe Exceptions. — Oral Testimony. — Stenographers Report. — Must he in Bill when Signed. — The stenographer’s report of oral testimony is not a written instrument within the meaning of the code, and can not be brought into a bill of exceptions by the use of the words “ here insert,” but must be incorporated in the bill before it is signed by the judge.</p>

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

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

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

<p>Decedents’ Estates.: — Indemnifying Chattel Mortgage. — Execution and Sale. —Conversion of Mortgaged Property. — An administrator who has taken a chattel mortgage from an insolvent debtor to indemnify the estate against loss on account of the decedent having become surety for the mortgagor, may, without first paying the debt, maintain an action against an unsecured creditor of the mortgagor who has caused the mortgaged property to be seized and sold on execution in satisfaction of his claim.</p> <p>Same. — Right of Administrator to Take Mortgage. — Order of Court. — It is not necessary that an administrator should obtain an order of court to that end before taking a mortgage to indemnify the estate in his hands against loss.</p> <p>Debtob and Cbeditob. — Fruits of Vigilance.- — One creditor has a right to obtain security for his claim, if it be honest, to the exclusion of other creditors.</p>

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

<p>GRiarmAi Law. — House of Ill-Fame. — Continuous Offence. — Former Conviction. — The offence of keeping a house of ill-fame, as defined by section 1994, R. S. 1881, is a continuing one, and one conviction is a bar to all other prosecutions for the continuous keeping of the same house prior to the returning of the indictment upon which the conviction was had.</p>

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

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

<p>Promissory Note. — Indemnity.—Loss Essential to Liability. — A promissory note 1?111011 is executed merely to indemnify the payee against loss for money advanced for the maker as margins in a joint transaction by the parties in grain, is not enforceable by the payee if no loss occurs.</p> <p>Same. — Transactionin Gi-ain. — Retention by Payee of Malcevs Profits. — Where, in a joint transaction in grain, one party advances for the other the amount of money necessary to make the purchase, and takes the latter’s note to indemnify him against loss, it being agreed that in case of a profit the payee shall collect the maker’s share and apply it upon the note, the note is not enforceable by the payee if the maker’s share of the profits collected and retained by him is equal to the amount due on the note.</p> <p>Same. — Sale of Commodity. — Margins.—Gambling Contract. — Where it is mutually understood and intended by all the parties to a contract that the commodity said to be sold is neither to be delivered nor paid for, but the contract is to be settled by the seller or purchaser, according as the market shall decline or advance, paying the difference between the contract price and the market price, such contract is a gambling contract and void, and a promissory note executed in the course of such a transaction to indemnify the payee against loss for money advanced for the-maker as margins, is not enforceable by the payee.</p> <p>Same. — Pleading.—Reply.—In an action by the payee upon a promissory note which the defendant asserts (1) was given to indemnify the plaintiff against loss for money advanced in a transaction in grain, which had resulted profitably, and that the defendant’s share of the profits, which the plaintiff had collected and retained, amounted to more than the note, and (2) that the note evidences money advanced by the plaintiff for the defendant in a gambling transaction in grain, a reply that the note was given for money loaned, that the transaction in grain was subsequent to and wholly unconnected with the execution of the note, and that the plaintiff had accounted to the defendant for all profits accruing to him in said transaction, is good.</p> <p>Same. — Settlement.—A settlement prior to the maturity of a note of all other business matters between the maker and payee, can not make the note enforceable if it is void as being the outgrowth of an illegal gaming contract.</p>

<p>Supreme Court Reports. — Publication and Sale. — Compensation of Reporter. — Act of 1889 Void. — The act of March 4th, 1889 (Acts of 1889, p. 87), relating to the publication of the Supreme Court Reports and the compensation of the reporter, assumes to create an entire new system, and as that system can not be given effect, according to the legislative intent, in the absence of the provision requiring the judges of the Supreme Court to prepare the syllabi of all decisions, which provision has been declared unconstitutional, the whole act is invalid, and the statutes enacted prior to its passage govern.</p>

<p>Descent. — Degrees of Kindred. — How Computed. — Degrees of kindred are computed in this State according to the rules of the civil law, and the statute of descents covers every conceivable state of circumstances that can surround the descent of property.</p> <p>Same. — Next of Kin. — Great-Grandmother.—Under section 2471, R. S. 1881, the real estate of an intestate descends to a great-grandmother, as being “ the next of kin in equal degree of consanguinity,” in preference to a great-aunt or uncle of the same maternal or paternal line.</p> <p>Same. — Will.— Construction of.— Vested Remainder. — A testator devised land to his daughter for life, with remainder over in fee to her child or children, in case she should survive him, leaving a child or children. By a subsequent clause of the will the testator devised to his widow a life-estate in the same land, and after her death to his right heirs in fee. The daughter survived the testator, but died soon after, leaving a son, who also died, leaving a son. The latter died unmarried and without issue, leaving the testator’s widow, his great grandmother, as his next of kin.</p> <p>Held, that the daughter’s son took a vested remainder in fee, which was in nowise affected or cut down by the doubtful expressions contained in the subsequent clause of the will, and that it passed to the testator’s widow upon the death of her great-grandson.</p>

<p>Apprentice. — Poor Child. — Power of Superintendent of County Asylum.— Consent of Judge. — Under sections 6092 and 5337, R. S. 1881, construed together, an indenture made by the superintendent of a county asylum apprenticing a child is invalid unless approved by the judge of the court having probate jurisdiction.</p> <p>Same. — Annulment of Indenture. — Right of Mother to Sue. — Prima facie, the right of action to set aside an indenture of apprenticeship made by the overseers of the poor is in the father of the child, and an action is not well brought by the mother unless she avers facts showing that she is entitled to sue.</p>

<p>Sdpbeme Cotjet. — Brief.— Waiver of Errors. — -Alleged errors, which are not discussed in the brief of counsel, are waived.</p> <p>Same. — Assignment of Error. — A joint assignment of error by several appellants presents no question as to a ruling affecting only one of them.</p>

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

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

<p>Rateboad. — Personal Injury.— Complaint. — Motion to Make Specific. — Where a complaint against a railroad company to recover for personal injuries alleges that the injuries were caused by the defendant suddenly and greatly increasing the speed of its train while the plaintiff was in the act of stepping off at a depot platform, it is not error to overrule a motion to make the complaint more specific by stating what agent or employee, and what acts of such agent or employee, caused the sudden increase of speed.</p> <p>Same. — Alighting from. Moving Train. — Negligence.—There is no conclusive legal presumption that one who voluntarily alights from a moving train is guilty of such negligence as will defeat an action for injuries, but the question as to whether the act constitutes negligence is to be determined by the jury upon a consideration of the rate of speed the train had acquired, the place, and all the circumstances connected with the act of alighting.</p> <p>Same. — Sick Passenger. — Carrying into Train. — Obligation of Company to Assistants. — Opportunity to Alight. — Where a passenger is so sick and enfeebled as to make it necessary for assistants to carry him from the station t'o a seat in the train upon which he has secured passage, the railroad company, having contracted to carry him with knowledge of his condition, is bound to allow him the required assistants, and is under an obligation to stop the train long enough to afford the persons aiding such passenger, although their services are voluntarily offered, a reasonable opportunity to leave the train, the same as if they were passengers.</p> <p>Same. — Sudden Increase of Speed. — Injury to Person Alighting. — "Where one enters a train at a station to assist in carrying into a car a sick passenger whom the railroad company has contracted to carry, and while ini the car the train is started before he has had a reasonable time to get' off, yet at a rate of speed so slow as to enable him to alight in safety^ but after he has reached the platform of the car and is in the act of alighting the speed is so suddenly and greatly increased, through the negligence of the trainmen, as to throw him off and injure him, the company is liable.</p> <p>Yebbict. — Answers to Interrogatories. — Judgment Upon. — It is only where there is a direct conflict between the general verdict and the facts found by the jury in their answers to interrogatories that a motion for judgment on the answers, notwithstanding the general verdict, will be sustained.</p>

<p>Taxes. — -False List. — Penalty.—Survival of Action for. — A cause of action to recover the penalty imposed by section 6339, R. S. 1881, upon any person who gives a false and fraudulent list or statement of his taxable ■ personal property, does not die with the taxpayer, but, under section 283, R. S. 1881, survives and may be maintained against his personal representative.</p> <p>Same. — New Night of Action. — Subject to General Statutes Pegulating Limitation and Survival. — Whenever a new right of action is given by statute, the right is subject to all general statutes regulating the limitation and survival of actions, unless it is expressly excepted therefrom.</p> <p>Same. — Complaint to Neeover Penalty. — Insufficiency of.- — It is only for failing to give a correct list of the property owned on the 1st day of April of any current year that the penalty is prescribed, and where the complaint to recover the penalty merely alleges that the taxpayer gave a false statement of the property owned by him “ in the years 1885 and 1886,” it is bad.</p>

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

<p>Winn. — Collateral Attach upon. — Action to Quiet Title. — A will which has been duly admitted to probate in another State can not be attacked in an action to quiet title brought in this State, although the execution of the will was procured by fraud.</p> <p>Pbactice. — Finding of Trial Court. — Inferences in Support of. — The finding of the trial court will not be disturbed where the evidence supplies grounds for inferences in support of it.</p>

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

<p>Marriage.— Validity of. — Living First FLusband. — Divorce will be Presumed. —In favor of the validity of a second marriage contracted hy a woman while her first husband is alive, it will be presumed that the first marriage was legally dissolved by a divorce before the second was entered into, and one who asserts the invalidity of the later marriage must show that there had been no divorce.</p> <p>Same. — Fhidence.—Proof of Negative. — Burden.—Where a negative is essential to the existence of-a right, the party claiming the right has the burden of proving such negative; benee where one bases his claim, to land upon the alleged invalidity of a marriage, he must, by proper proof, remove every presumption in favor of the legality of the marriage, although to do this lie must prove a negative.</p> <p>Same. — Conveyance.—Quieting 'Title. — Evidence.—Where a widow has conveyed land acquired by virtue of a second marriage contracted by her, and her grantee sues to quiet title as against relatives of the husband who assert the invalidity of the marriage, a transcript showing that the grantor’s first husband obtained a divorce from her in the courts of another State after the execution of the conveyance, does not, if admissible in evidence at all, overcome the presumption that the wife had prior to her second marriage obtained a divorce.</p> <p>MitcheeIi, J., dissents.</p>

<p>Special Verdict. — Formal Statements. — Omission of. — Where the facts are properly stated, the omission of mere formal statements, or the usual formal conclusion, will not vitiate a special verdict.</p> <p>Railroad. — Duty to Passengers. — Must Provide Safe Alighting Places. — It is the duty of a carrier of passengers to provide and maintain safe alighting places, and for a negligent breach of this duty it is liable to a passenger who sustains injury without his fault.</p> <p>Same. — Platforms and Stations. — Lights.—A railroad company is bound to keep the platforms at its stations in a safe condition, and if passengers are discharged after dark it must provide lights.</p> <p>Same. — Defective Platform. — Injury to Passenger. — Concurring Negligence of Third Party. — Where a railroad company discharges a passenger in the night-time at the crossing of another railroad, where the stations of the two companies are connected by an unlighted platform, so constructed as to lead the passenger to believe that it is designed for the use of travellers in passing from one station to the other, and the passenger, in going from the station where he alighted to the other station, and exercising care, falls through an unguarded hole in the platform and is injured, the carrier is liable, although the negligence of the other company concurred in causing the injury.</p> <p>Same. — Proximate Cause. — ¡If an injury results from a negligent act of a defendant, such act will be deemed the proximate cause, unless the consequences are so unnatural and unusual that they could not have been foreseen and provided against by the highest practicable care.</p> <p>Evidence. — Medical Witness. — Opinion as to Probable Results of Personal Injury. — It is competent to ask a medical witness, either on direct or cross-examination, to give his opinion as to the probable results of an injury to the person.</p>

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

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

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