Volume 120 — Indiana Reports

<p>Insolvent Debtors. — Attorney for Assignee. — Borrowing Trust Funds. — Purchase of Claims. — Profits.—Where the attorney for the assignee of insolvent debtors borrows trust fuuds from the assignee, and uses the money in purchasing claims against the debtors, which are afterwards filed against the estate and allowed by the assignee, he is bound to account to the estate for any profits realized by him in the transaction, although there may be no fraudulent-purpose.</p> <p>Same. — Replevin.—Value of Goods-. — Judgment not Conclusive. — Where some of the claims are purchased by the attorney from creditors who have brought an action to replevy goods sold to the insolvents, and he causes judgment to be entered in favor of the replevin plaintiffs, declaring that the goods are of the value stated in their affidavits, and then sells such goods at private sale on his own account, he is not concluded by the value as fixed by the judgment, but is only bound to account for the true value.</p> <p>Same. — Interest.— When Assignee Chargeable with. — The assignee of insolvent debtors is chargeable with interest on the funds in his hands from the time when, by the exercise of diligence, he could have secured an order declaring a dividend.</p>

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

<p>Pleading. — -Complaint to Recover Real Estate. — Damages.—-Misjoinder.— It is not a misjoinder to join in the same complaint a paragraph seeking to recover the possession of real estate with another claiming damages for its detention.</p> <p>Same. — Misjoinder.—Question of, How Raised. — The only way to raise the question of a misjoinder of causes of action is by demurrer, and it is not error for the lower court to overrule a motion to docket separately the different paragraphs of complaint, as independent actions, on the ground of misjoinder.</p> <p>Supreme Court. — Error in Overruling Demurrer for Misjoinder. — Judgment not Reversed for. — The Supreme Court will not reverse a judgment for error committed in sustaining or overruling a demurrer for misjoinder of causes of action.</p> <p>Heal Estate. — Kite to. — Circuit Court. — Judgment of. — Sheriff’s Sale. — The judgment of the circuit court showing jurisdiction of the person and subject-matter, and valid on its face, is prima fade sufficient to support a sheriff’s sale and title to real estate claimed under it.</p>

<p>Drainage. — Act of 1883. — Notice.—The notice required by the drainage-act of 1883 must follow, and not precede, the filing of the petition, and where the notice is that the petition will be filed at the next term of court, it is not sufficient, and the proceedings may be dismissed upon the. motion of one who has not submitted to the jurisdiction of the court.</p> <p>Same. — Refusal to Give Further Notice. — Dismissal of Petition. — Bill of Perceptions. — Practice.—No question is presented on appeal as to the action of the trial court in dismissing a petition for drainage, upon the refusal of the petitioner to give further notice of the filing of the petition, unless it is preserved by a bill of exceptions.</p>

<p>Execution. — Insolvent Debtor. — A debtor who has no property subject to execution is insolvent.</p> <p>Same. — Exemption.—Lien.—Where a debtor owns less property than he is entitled to claim as exempt from execution, such property is not subject to levy, and an execution does not become a lien thereon.</p> <p>■'Same. — Sheriff.—Failure to Levy. — Exempt Property. — A sheriff is not liable for failing to make a levy where the debtor owns no more property than he is entitled to claim as exempt from execution.</p> <p>Same —Presumption that Debtor will Claim Exemption. — While the right to claim property as exempt is a personal privilege of the debtor, the law presumes that he will make such claim.</p> <p>■Same. — Tort.— Presumption.— Burden of Proof. — In an action against a sheriff for failing to make a levy, it will not be presumed in favor of the plaintiff that his judgment was rendered in tort, but if such is the fact he must establish it.</p>

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

<p>Insurance. — Sale of Insured Property. — Assignment of Policy. — Upon a sale and transfer of property covered by a policy of insurance, and an assignment of the policy to the purchaser, duly assented to'by the insurance company, a new and original contract of indemnity arises between, the company and the assignee, which the latter may enforce without-regard to what may have occurred prior to the assignment.</p> <p>Same. — Encumbrances.—Forfeiture by Assignor. — Rights of Assignee. — Where the owner of insured property mortgages it, without notice to the insurer and in violation of a condition in the policy, after which he sells the property and assigns the policy to the purchaser, who obtains the assent of the insurer to the assignment, the latter at the time of giving its assent having no actual knowledge of the mortgage, the insurer can not set. up the previous forfeiture by the assignor to defeat an action by the assignee.</p> <p>Same. — Inquiry as to Encumbrances. — An applicant for insurance is not. bound, unless inquired of, to disclose whether or not the property insured is encumbered.</p>

<p>Pleading. — Amendment.—Chattel Mortgage. — Creditor’s Bill. — Where a complaint seeks to set aside chattel mortgages and subject the mortgaged property to sale to pay judgments held by the plaintiff against the mortgagor, an amendment to the effect that the mortgagor had been permitted to retain possession of the property and dispose of a part of the same, does not change the cause of action, and it is not error to allow such amendment to be made after the evidence is heard, in order to conform the complaint thereto.</p> <p>Chattel Mortgage. — Fraud.—Satisfaction.~Theory of Action. — Judgment.— Where the gravamen of an action' by creditors is fraud in the execution of chattel mortgages by the debtor, a judgment for the plaintiffs ordering the mortgaged property to be sold in satisfaction of their claims, solely on the theory that the mortgages have been satisfied by the payment of the indebtedness which they were given to secure, is not authorized.</p> <p>Same. — Sale.—Appraisement.—In such case, fraud not being found, it is error to order the mortgaged property to be sold without relief from valuation and appraisement laws.</p> <p>Finding. — Power of Court to Change after Entering of Becord. — After a finding has been announced and entered of record the power of the court over it is at an end, except that it may at any time before the close of the term at which judgment is rendered grant a new trial.</p> <p>Same. — Character of. — Harmless Modification. — All findings, which are not technically special findings, are regarded as general findings; and where facts are stated, an erroneous modification thereof on the motion of a party is harmless.</p>

<p>Slander. — Complaint.—Sufficiency of. — A complaint for slander alleged that the defendant spoke of and concerning the plaintiff that he “ took and drove off his (meaning defendant’s) ducks and sold them, and that if he (meaning plaintiff) was so mean as to drive his (meaning defendant’s) ducks off and sell them, he could have them,” which charge it is alleged was false.</p> <p>Meld, that the words alleged to have been spoken are not actionable per se, and that in the absence of an averment of extrinsic facts giving them a criminal meaning, the complaint is bad, even after verdict.</p>

<p>Negligence. — Bicycle.—Plights of Boad. — A bicycle is a vehicle, and is entitled to the rights of the road equally with a carriage or other veliiele.</p> <p>Same. — Frightened Horses. — Liability of Bicycle Bider. — The riding of a bicycle in the center of a highway, at a speed of fifteen miles an hour, to within twenty-five feet of horses attached to a carriage gping in the opposite direction, is not negligence, rendering the rider of the bicycle liable for injuries caused to the occupant of the carriage by the horses taking fright.</p> <p>Same.— What Necessary to Liability. — To make the rider of a bicycle, who is proceeding along a public highway, liable for injuries caused by horses taking fright at his machine, which he propels at a speed of fifteen miles an hour until near the horses, it must be shown that the acts done by him were done at a time, or in a manner, or under circumstances, which showed a disregard for the rights of others.</p> <p>Same. — Gomplaint.—Motion to Make Specific. — Where a complaint charges the defendant, in general terms, with negligence in riding a bicyle upon a public highway, whereby the plaintiff’s horse was frightened and ran away, thereby injuring him, a motion to have it made more specific by stating the particular acts constituting the negligence of the defendant should be sustained.</p>

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

<p>Cbiminau Law. — Malicious Trespass.- — Claim of Eight. — A prosecution for malicious trespass will not lie where the act charged was done under an honest claim of right, without a mischievous or malicious intent.</p>

<p>Real Estate. — Action to Recover. — Defendant Admits Possession by Pleading. — Where, in an action to recover possession of real estate, the defendant appears and files a general denial, he thereby admits that he lias possession of the entire tract in controversy.</p> <p>Same . — Conflicting Descriptions.- — Which is Controlling. — Quieting Title. — Survey. — Monuments.—Showing Location by Parol. — In an action to quiet title, the court, in pursuance of a survey made by its order, found that the plaintiff was the owner of, and gave judgment quieting title to, one hundred and fifty acres of land, to be taken off the south side of a certain fractional section in a given township and range, its full length from east to west, and wide enough north and south to include one hundred and fifty acres; this description was followed by courses and distances purporting to describe said one hundred and fifty acres, but in fact describing less than half that quantity of land. In an action by the same plaintiff against the same defendants to recover possession of the land,</p> <p>Held, that as the description first given is complete and reliable, and describes the quantity of land which the plaintiff was adjudged to own, it controls the subsequent description by courses and distances.</p> <p>Held, also, that for the purpose of showing a mistake in the latter description, parol evidence was admissible to show tbe location of the stakes planted by the surveyor, where they can not be found.</p>

<p>Criminal Law. — Minor.—Pool Table. — Permission to Play Upon. — Indictment. — Duplicity.—Statute Construed. — Under section 2087, B. S. 1881, which provides that any person owning or managing a pool table, etc., who allows or suffers a minor to play at or upon such table, shall, upon • conviction thereof, for each game so allowed or suffered to be played, be fined in any sum not more than fifty dollars nor less than five dollars, the offence consists in allowing the minor to play, the number of games played under one permission relating merely to the question of punishment, and hence where an indictment charges the playing of four games of pool at one time and place, it is not bad for duplicity.</p> <p>Same.— Witness. — Immaterial Testimony. — In a prosecution for permitting a minor to play upon a pool table, a question propounded to a witness asking him whether or not “ he is the same person who had been a witness in several liquor cases,” is objectionable, as calling for immaterial testimony.</p>

<p>Supreme Court. — Complaint.—Assignment of Error Upon. — It can not he assigned as error that a particular paragraph of a complaint does not state facts sufficient to constitute a cause of action ; the complaint can only be questioned in such w.ay as an entirety.</p> <p>Deed. — 2b Indemnify Surety. — Mortgage.—-A deed executed by a judgment debtor to indemnify against loss one who has become liable as replevin bail is, in legal effect, a mortgage.</p> <p>Money Had and Received. — Right of Action for. — The right of action for money had and received is based upon the fact of the receipt of money, or its equivalent, by one from another, under such circumstances as that the law implies a promise to repay it.</p> <p>Same. — Action on Implied Promise. — Proof of Express Promise. — Variance.— Amendment of Complaint. — Where the complaint is based upon an implied promise to repay money paid out by the plaintiff for the defendant’s benefit, proof showing an express promise to repay is an immaterial variance, and the plaintiff may amend his complaint after trial to make it conform tp the evidence.</p>

<p>Common Carrier. — Connecting Dines. — 1lelationto Original Contract. — Where a contract is made with a common carrier for the transportation of goods, no intermediate carriers being designated, and containing no provisions that its stipulations shall enure to the benefit of all the carriers, an intermediate carrier, by accepting the goods for transportation, is bound by the ordinary rules in the absence of a special contract, and can claim the benefit of none of the provisions of the original contract.</p> <p>Same. — Detention for Freight.— Waiver. — A common carrier waives his right to detain goods for the freight if his refusal to deliver is on the ground that they are not in his possession at the place where a demand 'is duly made.</p> <p>Same.- — Declarations of Agent.— Whenf Principal Bound. — A corporation haying invested an agent with general authority to adjust claims against it, the declarations of such agent in the adjustment of a claim are competent evidence against it.</p> <p>Same. — Limitation of Damages. — Not Available when Negligence is. Shown. — A limitation of damages, without reduction in rate of freight, will not avail when negligence is shown.</p> <p>Pleading. — Allegation of Partner’s Names.— Unnecessary when. — Allegation of Incorporation. — Where the names of the plaintiffs are given in full in the title of a cause, in alleging that the plaintiffs are partners, it is suf- - fieient to allege that fact without again giving their names ; and, also, where the name of a defendant imports that it is a corporation, a specific allegation is unnecessary.</p>

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

<p>Gravee Road. — Contractor's Bond. — Mistake.—Mistakes in a bond given pursuant to the statute to secure the performance of a contract for the construction of a free gravel road, may be corrected, under section 1221, R. S. 1881, so as to give the bond the effect intended by the law.</p> <p>Same. — Liability of Sureties. — The obligors in a bond executed by a contractor to secure the construction of a free gravel road are not liable for debts incurred by the contractor in the prosecution of the work, in the absence of a condition to that effect, unless a mistake is averred and proved.</p> <p>Same. — Sale of Claims. — Champerty.—A sale of claims for work performed and materials furnished in the construction of a free gravel road is not champertous, but is authorized by the code, and the assignee becomes the real party in interest.</p> <p>ChamperIY. — Assignment of Claim. — An assignment of a claim can not be defeated by the debtor by alleging facts showing that a champertous agreement was entered into by the plaintiff and the original holder of the claim at the time of the assignment.</p>

<p>Arrest or Judgment. — Motion.—Time of.Making. — A motion in arrest of judgment may not be made after judgment is rendered.</p> <p>New Trial. — Motion for. — Judgment befoi-e Disposed of. — A motion for a new trial may be made at any time during the term at which the finding’is announced, or on the first day of the succeeding term, where the finding is announced on the last day of a term, and a judgment rendered before such motion is disposed of is not final within the meaning of the statute regulating appeals.</p> <p>Same. — Vacating Judgment, — Absence of Formal Order. — Where a new trial is had and a new j udgment is rendered, the effect is to vacate the previous judgment, although there maybe no formal order setting it aside. Pleading. — Complaint.—Defects Cared by Verdict. — If a complaint states facts sufficient to bar another action for the same cause, it is sufficient after verdict to uphold the judgment, as the defects will be deemed cured.</p> <p>Same, — Striking Out. — Harmless Error. — There is no available error in ■striking out a paragraph of answer where the facts averred therein are admissible in evidence under another paragraph which remains in the record.</p>

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

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

<p>Evidence. — Promissory Note. — Alterations.—A promissory note is admissible in evidence, after proof of the genuineness of the signature, without evidence being first introduced in explanation of alterations appearing on its face.</p> <p>Same.— Witness. — Impeachment.—Testimony on Formen' Trial. — Stenographer’s Beport of. — The stenographer’s long-hand report of the testimony given by a witness on a former trial of a cause is not competent evidence to contradict or impeach such witness; but, if the proper'foundation is laid, the stenographer may testify as to statements made hy the witness on the former trial.</p> <p>Instkuctions to Juby. — Special Verdict. — Where a special verdict has been requested, it is not error to refuse to give a general instruction as to the law of the case.</p> <p>Argument of Counsel.- — Bight to Operand Close. — In an-action upon a promissory note the plaintiff is entitled to open and close the argument, where the issue is joined by a general denial of the complaint.</p>

<p>Set-Off. — Mutuality.—Promissory Note. — Mutuality is essential to the validity of a set-off, and a defendant can not use a promissory note in which a third person has an interest as a set-off against a claim asserted by the plaintiff.</p> <p>Same. — Evidence.—Where a defendant offers a promissory note as a set-off, the contract under which he claims to be the owner thereof is admissible in evidence to show that he has not such an interest in the note as entitles him to use it as a set-off.</p> <p>Promissory Note. — Ownership.—Judgment.—Estoppel.—Where one who has an interest in a promissory note is not a party to an action in which the ownership of the note is brought in question, the judgment rendered in that action does not affect his rights.</p>

<p>Township Trustee. — Certificate of Allowance — Assignment.—Individual Act. —Liability on Bond. — The act of a township trustee in assigning a certificate of allowance for services, and afterwards procuring a duplicate certificate and taking credit therefor in his settlement with the county commissioners, is an individual act, and creates no liability in favor of the assignee on the trustee’s official bond.</p>

<p>ObiminaXi Law. — Rape upon Child under Twelve Years Old. — Information.— Where an information charges rape upon a female child under twelve years of age, it is not necessary to allege that she was ravished forcibly and against her will.</p> <p>Same. — Assault and Battery with Intent to Commit Rape. — Child under Twelve Years Old. — Resistance not Necessary to Constitute Offence. — Under an itlformation charging rape upon a child less than twelve years old, there may be a conviction for assault and battery with intent to commit rape, without evidence tending to show that the defendant’s advances were resisted by the child, or that she was incapable of resisting. Stephens v. State, 107 Ind. 185, overruled.</p> <p>Same. — Touching of Person. — Failwre of Proof. — A conviction for assault and battery with intent to commit rape upon a child under twelve years of age, is not sustained where there is no proof that the defendant touched the person of the child, or that he did any act from which a touching can be inferred.</p>

<p>Mortgage. — Description.—Office of. — The office of a description is not to identify land, but to furnish the means of identification, and where the description contained in a mortgage does this, it is not void.</p> <p>Same. — School Fund Mortgage. — Foreclosure.—Party in Interest. — County Auditor. — Right to Testify where Heirs or Administrators are Parties. — In a suit upon the relation of a county auditor to foreclose a school fund mortgage executed during his term of office, the relator is not a party in interest within the meaning of the statuté prohibiting parties from testifying as witnesses where heirs or administrators are parties.</p>

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

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

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

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

<p>Intoxicating Liquor. — License.—Notice of Application. — Place of Sale.— Insufficient Description. — Where there is no street named Main street in a town, and where the only lots therein numbered twenty-three are lots twenty-three east and twenty-three west, both situate upon Michigan street, a notice of an intention to apply for license to retail intoxicating liquors which describes the location of the proposed place of sale as being upon lot twenty-three on Main street, does not comply with the statute (section 5314, R. S. 1881), and is bad when attacked by a remonstrance.</p>

<p>New Total. — Newly Discovered Evidence. — Change of Remit. — There is no available error in refusing a new trial on the ground of newly discovered evidence where the new evidence is not of such a character as would probably change the result on another trial.</p> <p>Same . — Amendment of Application. — Materiality of Evidence. — While it seems that an application for a new trial may be amended at a subsequent term by inserting additional affidavits, a refusal to a,llow the amendment is only available where the new evidence is material.</p>

<p>Bill or Exceptions. — Must be Signed by Judge. — A bill of exceptions which is not signed or attested by the judge is without force.</p> <p>Special Verdict. — Must be Requested. — Where a party submits to the court the form of a special verdict and asks that it be placed before the jury, but doe3 not request that a special verdict be returned, the court does not err in refusing to submit the paper to the jury.</p> <p>New Trial. — Inconsistency between Verdict and Interrogatories. — Inconsistency between the general verdict and the answers to interrogatories is not a cause for a new trial.</p> <p>Verdict. — Support of Evidence. — Answers to Interrogatories. — Answers of the jury to interrogatories can not be used to determine whether the verdict is supported by the evidence, where the evidence is not in the record.</p> <p>Interrogatories to Jury. — Definite Answer. — Refusal to Require. — It is not error to refuse to require the jury to give a more definite answer to an interrogatory, where the answers to other interrogatories cover the subject.</p>

<p>Measure oe Damages. — Breach of Contract to Saw Lumber. — Where one agrees to saw timber belonging to another into lumber of certain dimensions and for a certain purpose, but saws it in such a manner as to make it unfit for the purpose intended, the measure of damages is the difference between the market value of the lumber as it is sawed and its market value if sawed according to the contract.</p> <p>Same. — Theory of Action. — Skill.—Negligence.—Instruction.—If, in such case, the owner of the lumber predicates his right to recover damages upon the unskilful and negligent manner in which it was sawed, and upon this theory issue is joined and evidence heard, he can not object to an applicable instruction, on the ground that under the contract a failure to saw the lumber as agreed gave a right of action for damages without regard to the question of skill.</p> <p>Same. — Harmless Instruction. — Where the jury determine that a party is not entitled to recover any damages, no available error can be predicated upon an instruction which assumes to state the rule for the measurement of damages.</p>

<p>Highway. — Change of Location.— Vacation. — Consolidation.—Petitioners Required. — A proceeding for the change of a highway is properly brought, under section 5046, B. S. 1881, merely upon the petition of the persons through whose lands it runs, even though the change involves the vacation of the highway and its consolidation with another running upon a different line, but also upon the petitioners’ lands, which latter highway it is asked may be widened.</p>

<p>Highway. — Road Districts. — Township Trustee May Reduce Number of. — iSupervisor. — Under the act of April 13th, 1885 (Acts of 1885, page 202), a township trustee may reduce the number of road districts in his township, if the public interests will be thereby subserved, even though by doing so a duly elected supervisor may be deprived of official responsibility.</p>

<p>Cbhunai, Law. — Disturbing Meeting. — “ Salvation Army.” — One who enters a room where a collection of persons known as the “ Salvation Army ” are conducting religious services according to their accustomed method, and, with his hat on and a cigar in his mouth, persists in conducting himself in an offensive manner, and so diverts attention from the services then in progress, is guilty of disturbing a meeting, within the meaning of section 1988, R. S. 1881.</p> <p>' Same. —Information.—Descriptive Matter. — Surplusage.— Variance. — An in - formation for disturbing a religious meeting is complete without an allegation that the defendant’s conduct was to the disturbance of certain named persons, and as the latter allegation is surplusage, a failure to prove that all the persons whose names are given were disturbed, is not a variance.</p>

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

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

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

<p>Promissory Note. — Constructive Delivery. — The acts of the maker of a promissory note which the law will construe as a delivery must he such as to evince an unmistakable intention to give the note effect and operation according to its terms, and to relinquish all power and control over it in favor of the' obligee.</p> <p>Same.— What is not a Delivery. — Upon being requested by his creditor to execute a mortgage to secure a debt, the debtor refused to do. so, stating that he had signed a note for the amount and left it in a bank for the creditor’s benefit. Upon the death of the debtor the note, duly signed, was found among his private papers. It is not stated in the special finding that the note was actually left with the bank at any time for the payee’s benefit, or that it ever was under the control of the payee or of any person for his use.</p> <p>Held, that a delivery is not shown.</p> <p>Same. — Compelling Delivery. — Estoppel.—Statute of Limitations. — Where one is induced to forego his purpose to secure his money before the statute of limitations has barred his claim, by the ássurance of the debtor that a note has been signed and delivered to a bank for his benefit, he may, upon the death of the debtor with the note still in his possession, be entitled to compel a delivery, or to require it to be treated, in an equitable suit, as having been delivered as represented.</p>

<p>City Clerk. — Bond.—Condition to Account for Moneys. — Section 3095, R. S. 1881, authorizes the bond of a city clerk to be conditioned for the payment of all moneys received by him according to law and the ordinances of the city.</p> <p>Same, — Conversion.—Sureties.— Validity of Ordinance. — Estoppel to Deny. — In an action upon the official bond of a city clerk to recover moneys collected by him pursuant to ordinances of the city, which it is alleged he failed to pay over and converted to his own use, in violation of the condition of his bond, the obligors are estopped to assert that the ordinances under which the clerk received the moneys, and which were in existence when the bond was executed, are void for the reason that under the statutes prescribing the duties of city officers all moneys belonging or due to the city must be paid to its treasurer.</p>

<p>Widow.— Will. — Election.—Statutory Requirements. — Where a widow dies within a year after the death of her husband, without having made an election ifl writing, signed, acknowledged, and filed with the clerk as provided by the statute (Elliott’s Suppl., section 428), as to whether she would take under her late husband’s will or under the law, she Will be deemed to have taken under the will, notwithstanding the fact that she, being ignorant of the statutory requirement, had in fact determined to take under the law, and in pursuance of that determination had taken actual possession of one-third of the land left by her husband.</p> <p>Same. — Right to Elect is Personal. — Death before Election. — The right to elect is strictly personal and can be exercised only by the widow, and if she dies before the time for election has expired, the right expires with her, in the absence of a statute authorizing its exercise afterwards by her heirs or representatives.</p>

<p>Criminal Law. — Trial upon Information. — Grand Jury, Sessions of. — The circuit or criminal courts are not bound to call a grand jury for each term of court or for any particular time in a term, so that, under section 1679, R. S. 1881, a person who has been arrested in vacation for any of-fence, except treason and murder, and recognized to appear at the succeeding term of court, may be prosecuted upon affidavitand information if no session of a grand jury has intervened.</p> <p>Same.— Receiving Stolen Goods. — Amendment of Affidavit. — Where a defendant is charged before a justice of the peace with the offence of receiving stolen goods, and is recognized to appear in the circuit court to answer the charge, the State may there file an amended affidavit and an information thereon in which the accused is charged in separate counts with receiving stolen goods and with the larceny of the same goods.</p> <p>Same.— Verdict. — Harmless Defect. — Judgment.—Where a verdict is defective in a particular harmless to the defendant, a judgment which follows the verdict is not void, and sentence thereon may be pronounced.</p> <p>Same. — Election by State. — Where a defendant is charged in separate counts with receiving stolen goods and with the larceny of the same goods, a refusal to require the State to elect upon which count it will try the defendant is not erroneous.</p> <p>Same. — Juror.—Previously Expressed Opinion. — New Trial. — To entitle a defendant to a new trial on account of a previously expressed opinion by a juror, he must show affirmatively that at the time he accepted such person as a juror he was ignorant of the facts disqualifying him.</p>

<p>Will. — Seal Estate. — Charge upon for Payment of Debts. — Personal Inability of Devisees. — Where a will provides that real estate devised to the testator’s wife and mother shall be held liable, in equal portions, to pay his debts if his personalty is not sufficient for that purpose, “ and to this end I make a charge upon my estate so devised to perform the same,” the devisees do not, by accepting the testamentary provision, become personally liable for the indebtedness of the estate.</p> <p>Family Settlements. — Decedents Estate. — Claims.—Payment by Devisees.— Extinguishment. — Where one devisee, who holds enforceable claims against the testator’s estate, enters into a contract with another devisee, upon whose land the claims are a charge, in pursuance of which the latter pays to the former full consideration for the claims, the settlement is valid, in the absence of fraud or mistake, and the claims involved will be deemed extinguished.</p>

<p>Town. — Sidewalks.—Power to Compel Building of. — Under the statutes in force in 1875, the board of trustees of an incorporated town had power to compel the grading and building of sidewalks, whenever, in their opinion,the public convenience required it, and if lot-owners refused to do the work, to let a contract for the improvement, pay the cost out of the treasury and collect the same from such lot-owners by suit.</p> <p>Same. — Authority to Make Improvement. — Estoppel of Property-Owner. — If the owner of property in a town stands by, and, without objecting, permits improvements to be made which benefit his property, he is estopped to afterwards deny the authority of the town to make the improvements.</p> <p>Pleading. — General Denial. — Demurrer.—The Supreme Court must decide a case upon the record as it comes to it, and where the record shows that the trial court sustained a demurrer to an answer of general denial, the error is available.</p> <p>Same. — Joint Answer. — Supreme Court. — Assignment of Error. — Where an answer filed in the trial court is the joint answer of ail the defendants to the action, infants as well as adults, it must be so considered on appeal, and a joint assignment of error upon a ruling thereon is proper.</p>

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

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

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

<p>Railroad. — Platform Between. Stations. — Duty to Keep in Repair. — Inability for Negligence. — Where two railroad companies use in common a platform extending from the station of one to that of the other, and over which their passengers may be expected to pass in going from one station to the other, they are bound to keep it in safe condition, and are both liable for injuries resulting to passengers from their failure to do so.</p>

<p>Will. — Contest of.— Witness. — Competency.—Opinion.—In a proceeding to> contest a will, the heirs and devisees are competent witnesses as to the mental condition of the testator, and, not being experts, such witnesses, must state the facts upon which they base their opinions, including the conduct of the testator, what he said, and, perhaps, a full history of his life.</p> <p>Same. — Mental Incapacity.— Undue Influence. — Evidence.— Views of Testator as to Making Wills. — In a proceeding to contest a will on the grounds of mental incapacity and undue influence, a conversation between the testator and another in relation to the former’s views upon the subject of making wills, in which he spoke strongly against giving one child a larger share of the estate than another, is competent.</p> <p>Same. — Mental Condition. — Cross-Examination.—A witness having testified. . as to the physical and mental condition of the testator during the last, year of his life, a question on cross-examination as to whether the witness would, during that period, have taken a note from the testator, and whether he ever heard anybody question his sanity, is not competent.</p> <p>Same. — Domestic Relations of Testator. — Where it is sought to set aside a will on the grounds of insanity and undue influence, it is competent to-show the relations existing between the testator and his family, as to. whether they were friendly or otherwise.</p> <p>Same. — Condition of Testator’s Mind. — Scope of Inquiry. — To enable the jury to determine as to the condition of the testator’s mind at the date of the will, it is proper to show its condition at any time prior thereto.</p> <p>Same. — Opinion of Witness. — The testator, having been a lawyer, and having conducted the trial of a cause before a justice of the peace a short time prior to his death, the justice might properly detail the facts as to the manner in which the testator conducted the trial, but his mere opinion that he managed the cause “ well and shrewdly ” is not competent.</p> <p>Same. — Impeachment of Witness. — Where a witness, upon facts stated by him, gives his opinion that the testator was of sound mind, it is proper to show, by way of impeachment, that he had stated out of court that the testator was childish, and that he was going crazy.</p> <p>Same. — Contradiction as to Collateral Matter. — Interest and Hostility of Wit-, ness. — -The general rule that where a witness is cross-examined on matters collateral to the issues, his answers can not be contradicted by the party putting the questions, has no application where it is sought to show that the witness has an interest in the case, or that he is hostile to one of the parties to the action.</p> <p>Same.— Verdict. — Support of Evidence. — Where a complaint to contest a will charges both mental incapacity and undue influence, a general, verdict setting aside the will, will withstand an attack upon the ground that it is not supported by the evidence, if there is evidence tending to support one of the charges made by the complaint.</p> <p>Same. — Instruction to Find for the Defendant. — Where, in a proceeding to contest a will, there is some evidence tending to support the charge of undue influence, it is proper to refuse to instruct the jury that they should find for the defendants on that issue on the ground that there is no such evidence. \</p> <p>Evidence. — Objection to. — Practice.—Where a witness who is competent to • testify as to some matters is placed upon the stand for examination, an objection then interposed that such witness is not competent to testify as to certain other matters, thus imposing upon the court the burden of watching the testimony and separating the competent from the incompetent, is not well taken.</p> <p>Same. — Admission of Incompetent Testimony. — Motion for New Trial. — Where some of the testimony of a witness is competent, a motion for a new trial which is predicated upon the admission of testimony of such witness must point out, with clearness and certainty, the particular evidence objected to.</p> <p>Misconduct oe Counsel.— Argument.— Practice. — It is only where the court is called upon to correct the injury resulting from the misconduct of counsel during the trial and refuses to do so, whereupon an exception is reserved, that any question can be presented in relation thereto on appeal, unless the injured party moves to discharge the jury.</p> <p>Interrogatories to Jury. — New Trial. — Assignment of Error. — The refusal of the court to require a jury to answer an interrogatory more specifically may be assigned as a cause for a new trial, but it can not be independently assigned as error in the Supreme Court.</p> <p>Instructions to Jury.- — Argument upon Legal Questions. — Discretion of Court. — As the trial court has power to hear argument and authorities bearing upon legal questions involved in its instructions, its discretion in doing so must be harmfully abused in order to constitute available error.</p> <p>Same. — Supplying Omissions. — A judgment will not be reversed on account of an instruction which is meaningless as it appears in the record, but which, upon supplying evidently omitted words, is correct as an abstract legal proposition.</p> <p>Special Judge. — Power of. — Final Disposition of Cause. — Where a cause is tried before a special judge, and a verdict returned on the last day of the term of court, such special judge has authority to hear a motion for a new trial filed on the first day of the next term, and to make a final disposition of the cause.</p> <p>Yerotct. — Support of Evidence. — Interrogatories.—If a general verdict is supported by the evidence, a motion for a new trial, assigning as a reason that it is not so supported, should, be overruled, without regard to the manner in which interrogatories are answered. •</p> <p>Same. — Answers to Interrogatories. — Where there is nothing in the record to show that the verdict is not based upon the charge which the evidence tends to support, it is wholly immaterial whether or'not the answers to interrogatories addressed to another branch of the case are supported by the evidence.</p>

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

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

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

<p>Judgment. — Collateral Attach. — A judgment is only subject to collateral attack when it is void.</p> <p>Same. — Jurisdiction.—Notice by Publication. — Affidavit.—Sufficiency of — Where notice is given by publication, the judgment of the court that the publication and the affidavit upon which it is based are sufficient to give it jurisdiction is conclusive upon all the parties, as against a collateral .attack.</p> <p>Same. — Judgment before Notice is Completed. — A judgment rendered upon notice by publication, before the notice has run the full period prescribed by the statute, is not void, although erroneous, and not subject to collateral attack.</p> <p>Same. — Quieting Title. — Removal of Encumbrances. — Notice by Publication.— Under section 318, R. S. 1881, a decree to quiet title to real estate and to remove therefrom apparent liens, may be rendered upon notice by publication.</p>

<p>Pleading. — Complaint upon Beplemn and Appeal Bonds. — For a complaint . counting in separate paragraphs upon a replevin bond and upon an appeal bond, which is held to be good, see opinion.</p> <p>Replevin Bond. — Technical Defects. — Estoppel.—The obligors in a replevin bond, under which the possession of the property in controversy has been obtained, are estopped, in an action on the bond for a failure to comply with an adverse judgment of the court, to set up as a defence that the statutory provisions relating to the execution of the bond were not technically complied with.</p> <p>Same. — Acceptance and Approval of Bond. — Where a replevin bond is delivered to the sheriff, and he, acting upon such delivery, places the property in the possession of the principal obligor, this constitutes an acceptance and approval of the bond.</p> <p>'Same. — Action upon Bond. — Subsequent Issuing of Execution. — In an action upon a replevin bond, the fact that the plaintiff, after the beginning of the action, causes an execution to be issued upon the judgment rendered in the replevin proceeding, and also upon the judgment under which the property was seized prior to the institution of the replevin proceeding by the defendant, does not constitute a defence.</p> <p>Appeal Bond. — Term-Time Appeal. — Approval of Bond. — ■'Where an appeal is taken in term, and the court fixes the amount of the bond required,. approves the surety named and designates the time within which the bond must be filed, this constitutes an approval of the bond by the court, and an approval by the clerk is not necessary.</p> <p>Special Findino. — Time of Requesting. — Discretion of Court. — If the request for a special finding is not made at the commencement of the trial, the right thereto is waived, and thereafter it is a matter within the sound discretion of the court whether or not it will make a special finding.</p>

<p>Streets and Alleys. — Laying Out or Altering. — Reference to City Commissioners. — Assessment of Damages and Benefits. — Under sections 3166 and 3167, R. S. 1881, when a city undertakes to lay out a new street or alley, or to alter an existing one, it must refer the matter to the city commissioners provided for therein, for the assessment of the benefits and damages accruing to property owners from such improvement.</p> <p>Same. — Failure to Refer to City Commissioners. — Liability of City. — Where a city undertakes to widen an alley into a street without referring the matter to the city commissioners for the assessment of benefits and damages, thus depriving a property owner of the right to have his damages assessed in the manner prescribed by the statute, it is liable to such person for the damages which were assessable by the commissioners.</p> <p>Same.— What Damages Assessable by City Commissioners. — The city commissioners may assess damages accruing from the laying out or the altering of a street, but they have no power to assess damages resulting from the manner in which the street may afterwards be graded, or otherwise-improved, and for damages of the latter kind the city does not become liable on account of its failure to refer the matter of the improvement to the city commissioners.</p> <p>Same.— Grading of Street.— When Lot Owner Entitled to Damages. — -An abutting lot owner is not entitled to recover damages resulting from the-original grading of a street, but to entitle him to damages on account of the grading of a street he must show that there Was a prior established grade, and that the damages for which he sues were caused by a change therein.</p>

<p>Damages. — ■Wrongful Death. — Action by Administrator. — Next of Kin. — Complaint. — Where a complaint for damages resulting from, the death of a person by the wrongful act of another, judged by its general scope and tenor, shows that the deceased left next of kin, and that the aotion is prosecuted by an administrator in his representative capacity, it is sufficient if it states a cause of action in his favor in that capacity, although some persons are described as next of kin who are not such.</p> <p>Same. — Driving Vicious Stallion into Crowd. — Liability for Injury. — -One who drives a vicious and unmanageable stallion into a crowd of vehicles, standing in a place set apart for them, away from the travelled road,' at an agricultural fair where there is a great gathering of people, and, knowing the vicious disposition of the horse, strikes him with a whip, thereby causing him to leap on a wagon and injure an occupant thereof, is liable for damages.</p> <p>Instructions to J uiiy. — Refusal to Give. — Supreme Court. — Where neither the evidence adduced nor the instructions given by the court are in the record, a ruling refusing to give instructions asked will not be considered on appeal.</p>

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

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

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

<p>Trial. — Finding by Jury.— When Deemed General. — Where the court, of its own motion and for its information, calls a jury to find as to ’the facts, the finding will be deemed a general, and not a special finding.</p> <p>Supreme Court. — Questions Delating to Evidence.— When not Presented. — In the absence of a bill of exceptions, no question is presented upon the admission of evidence, or as to whether the evidence supports the finding.</p>

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

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

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

<p>Corporation. — Turnpike.—Director.—Services Rendered by in Construction of. — Compensation.—Where a director of a turnpike company, by agreement with his co-directors, performs labor and furnishes material necessary and proper in the construction and repair of the bridges and roadbed of the turnpike, the capital stock subscribed for the purpose having been exhausted, he is entitled to recover a reasonable compensation for such labor and materials,</p>

<p>Crimin al Law. — Obstruction of Highway. — Corporation May be Prosecuted.— A corporation maybe prosecuted criminally for obstructing a public highway. Sections 1897 and 1964, R. S. 1881.</p> <p>Same. — Removal of Obstruction. — Mandate.—The fact that a corporation may be compelled by mandate to remove an obstruction placed by it in a public highway is not a defence to a prosecution for maintaining such obstruction.</p> <p>Same. — Indictment for Obstructing Highway. — All that is necessary to constitute a good indictment for obstructing a public highway is to allege such facts as meet the requirements of the statute defining the offence.</p> <p>Same. — Criminal Intent. — Bad Faith. — To constitute the offence of obstructing a public highway, it is not necessary, under the statute, that there be a criminal intent, and the indictment need aver none, nor need it aver that the acts were done in bad faith.</p> <p>Same. — Condition of Highway before Obstruction.- — An indictment for obstructing a public highway need not allege the condition of the highway before the obstruction complained of.</p>

<p>Promissory Note. — Fraud.—Where one is induced to sign a promissory note by a cunningly devised scheme, preconcerted for the purpose of ■ deceiving him, and made effective by false statements, a conclusion of fraud is warranted.</p> <p>Same. — Bona Fide Holder. — Notice of Fraud. — Burden of Proof. —In an action by an endorsee upon a promissory note which was obtained from the maker by fraud, the burden is upon the plaintiff to show that he is a bmafide holder of the note, which includes proof that he acquired it without notice of the fraud.</p>

<p>Common Law. — Presumption that it Prevails in Other States. — In the absence of any showing to the contrary, the presumption is that the common law prevails in other States.</p> <p>Attachment. — Courts of Other States.- — ■ Jurisdiction.— Presumption. — The writ of attachment is the creature of statute law, yet where a court of a State in which the common law is presumed to prevail has issued</p> <p>' such a writ, in aid of a pending proceeding in which it had jurisdiction of the subject-matter and to which the defendant appeared, it will be, presumed, in an action in this State upon the attachment bond, that the court did not exceed its powers.</p> <p>Same. — Common-Law Bond. — Complaint on. — An action may be maintained in this State upon an attachment bond executed in a proceeding had in the courts of a State in which the common law presumably prevails, without setting out any statute authorizing it to be taken, as such bond will be deemed a common-law bond, and a recovery may be had thereon under the rules applicable to actions on ordinary contracts.</p>

<p>Master and Servant. — Negligence.—Machinery.—Patent Defect. — Assumption of Bisk. — Contributory Negligence. — One who, being employed by another to assist in loading heavy timbers upon a car, can by looking see that the hooks attached to a crane used in the work are dulled and incapable of safely holding tlie timbers raised by it, but continues in the service without objection, will be deemed to have assumed the risk created by the defect, and can not recover for an injury resulting to him by reason thereof.</p>

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

<p>Criminal Law. — Arson.—Attempt to Commit. — The statute relating to arson, B. S. 1881, section 1927, prescribes no penalty for an attempt to commit arson, and the offence defined is complete, and the penalty enforceable, only when property is actually burned.</p>

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

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

<p>Wrox..— Widow. — Life Estate. — Limited Power of Disposition. — Trust Estate.— Accounting Among Heirs. — Descent.—A testator devised all of his real and personal property to his wife for life, with remainder over to his children, share and share alike. The widow was given power, as executrix, to sell any or all of the property to pay debts or to make advancements, and it was provided that whatever of the estate remained in her hands at her death should be equally divided among the testator’s children, taking advancements into consideration. The widow sold part of the estate and loaned of the proceeds a large sum to two of the sons, they agreeing to account to the other children at her death.. These sons also came into possession of other property belonging to the estate. The widow died, never having qualified as executrix, and no. letters of administration-were ever issued on the testator’s estate.</p> <p>Held, that as the widow had a power of disposition only for defined purposes and as executrix, the part of the estate which was not applied to such purposes, constituted, aside from rents and profits and interest and income, a trust fund for the benefit of all the children, and an action will lie by the other children against the sons to enforce an accounting.</p> <p>Held, also, it appearing that there are no debts, that the account between the heirs may be adjusted by a court of equity without the intervention of an administrator.</p> <p>Held, also, that as, by the terms of the will, the children were given the same interest in the testator’s property that they would have taken without the will, they are considered as taking by descent.</p>

<p>■Corporation. — Gravel Road. — Forfeiture of Charter. — Where a gravel road company undertakes by its articles of association to construct a road nine miles in length and builds but six, by the provisions of section 3641, R. S. 1881, it forfeits its right only to the unconstructed part, and retains all the rights and privileges conferred by the statute as to the remaining part.</p> <p>Same. — Failure of Directors to File Report. — The failure of the directors to file a report with the Secretary of State does not work a forfeiture of the charter.</p>

<p>Pleading. — Complaint.—Joint Action.— What Must be Shown. — In a joint action based on section 2442, R. S. 1881, relating to the liability of heirs a complaint which fails to show á cause of action in favor. of all the plaintiffs is bad.</p> <p>Arbitration. — Agreement to Arbitrate. — Not Entered of Record. — Nunc Pro Tunc Entry. — An agreement to submit all matters in issue to arbitration, made in the presence of the court, but not entered of record, is not a perfected agreement, for the court can speak only by its record, and a nunc pro tunc entry can not be resorted to, to correct it.</p> <p>Same. — Parol Agreement. — At common law, an agreement to arbitrate, and the award thereon, in parol was valid, and notwithstanding the statutory provision in regard to arbitrations, the rules of the common law are still in force.</p> <p>Same. — Guardian and Ward. — A guardian at common law could agree to an arbitration for his ward.</p>

<p>Eeau Estate. — Description.—Judicial Notice.— Judicial notice is taken that land in this State described as “the east half of the southeast quarter of section 22, township 23 north, range 10 east,” is not a fractional eighty-acre tract of land.</p> <p>Same. — Indefinite Desciiplion.— Void Sale. — A sale of real estate by the following description, viz., “ the fractional east half of the southeast quarter of section 22, township 23, range 10 east, containing sixty-one acres more or less, in Blackford county, Indiana,” is void, the description being too indefinite to furnish the means of identifying the land.</p> <p>Same. — Deed to Land Adversely Held. — Action to Recover, — Statute Construed, —Section 1073, B. S. 1881, providing that any person having a right to recover possession of or quiet title to real estate in the name of another, shall have a right to sue in his own name, gives validity to deeds which prior to its passage were void as against a third person in possession.</p> <p>Sam:e. — Real Party in Interest. — Under sections 1073 and 251, E. S. 1881, construed together, one who has conveyed land adversely occupied by another can not maintain an action in his own name to recover possession for the benefit of his grantee, but such action must be brought in the name of such grantee, who is the real party in interest.</p>

<p>Real Estate. — Action to Recover. — Complaint.—Conclusions of Law.— Variance. — Where a complaint to recover real estate alleges that the plaintiff is the owner in fee, and that fact is stated in the special finding, and a proper judgment is rendered, the fact that the conclusions of law characterize the plaintiff’s title merely as “ good and sufficient,” is not material.</p> <p>Same. — Swamp Land. — Meander Line. — Riparian Owner. — Where one, by a chain of conveyances running back to the United States, acquires title to “ that part of the northeast fractional quarter of section 36, township 23 north, range 4 west, lying south of the Kankakee rivet,” being swamp land, the meander line of the river does not constitute the boundary of his land, but he is a riparian owner, and may maintain an action of ejectment against one who, without his consent, has taken possession of the land lying between such meander line and the river.</p>

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

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

<p>Mortgage. — Foreclosure.—Res Adjudícala. — Where a widow seeks to have her one-third interest in the realty of her deceased husband set off to her in severalty, or, failing in that, to be allowed to redeem from a mortgage executed by the husband before his death, the theory of the existence of the mortgage having been adopted, a judgment awarding the partition is not an adjudication of the right of the holders of the mortgage to foreclose.</p>

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

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

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

<p>New Tbial. — As of Right. — Action to Set Aside Conveyance of Real Estate. —Judgment Lien. — “Where a creditor seeks to set aside a conveyance of real estate in order to subject it to a prior judgment lien, asserting that his debtor is the real owner, the title to the land having been fraudulently taken in the name of another, the debtor is not as of right entitled to a new trial, the title to the land being involved only collaterally.</p>

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

<p>In'xoxtcatiug Liquors.— Unlawful Sale. — Civil Liability. — Under section 5323, R. S. 1881, one who sells intoxicating liquors to another in violation of the liquor law, is liable personally, as well as upon his bond, to any one who has thereby sustained damage to person, property or means of support.</p> <p>Same. — Sale to Intoxicated Person. — Damages to Wife by Being DHven from Some. — One who sells liquors to an intoxicated person, knowing his condition, is liable under section 5323, R. S. 1881, for damages sustained by the wife of the vendee by being driven from home into the cold by her husband, while crazed by the effect of the liquors so sold, whereby she is made sick and suffers pain, loss of time, and expense in being cured.</p> <p>Same. — Character of Action. — Contributory Negligence. — Complaint.—The action in such case is not predicated upon the negligence of the defendant, but upon an aggressive wrong, and the plaintiff is not required to aver that she was free from fault contributing to the injury sustained.</p>

<p>From the HaDeoc'k Circuit Court.</p>

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

<p>Promissory Note.— Escrow.— Delivery before Condition Performed. — Inability. — One in whose hands a note has been placed by the maker to be delivered to the payee upon the performance of certain conditions by him, and who, in violation of his obligation, delivers the note to the payee before the performance of the conditions, is liable in damages to the maker, who has become responsible to the payee’s endorsee, a bona fide holder.</p>

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

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

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

<p>Negligence. — Comity.—Public Bridge. — A county is not liable for an injury caused to a traveller by a bridge giving way, unless it appears that the county authorities failed to exercise ordinary care in constructing or maintaining the bridge.</p> <p>Same. — Defective Construction of Bridge. — Safely Using. —Pleading.-—The fact that a bridge was safely used for thirteen years does not overcome a direct averment that it was negligently constructed of unsafe and unsuitable materials.</p> <p>Same. — Statute of Limitations. — As the right of action does not accrue until the injury is received, the statute of limitations does not begin to run until then, although the defendant’s negligence runs back many years prior thereto.</p> <p>Same. — Proximate Result of Negligence. — Pleading.—Where the facts pleaded show that the plaintiff’s injury was the proximate result of the defendant’s negligence, this is sufficient without a direct averment to that effect.</p> <p>Same. — Negligent Construction of Bridge. — Notice.—Pleading.—Where the complaint alleges that the defendant county negligently constructed the bridge, which caused the plaintiff’s injury, of unsafe and unsuitable material, it is not necessary to aver that the defendant had notice of its unsafe condition.</p> <p>Same.' — Repairs.—-Employment of Incompetent Persons. — Where a county knowingly employs incompetent persons to repair a bridge, and has knowledge that their work is so negligently and unskilfully done as to leave the bridge in an unsafe condition, it is liable for resulting injuries.</p> <p>Evidence. — Personal Injury. — Statements as to Nature and Location of Pain.— Surgeon. — The surgeon who attended an injured person may, in an action for damages, give in evidence the statements made by the plaintiff as to the nature and location of the pain from which he was suffering .</p> <p>Venire de Novo.— When wül he Denied. — Where the verdict is perfect on its face, and so fully finds the facts as to enable the court to pronounce judgment upon it, a motion for a venire de novo will be denied, although the verdict may not find upon all the issues. Bosseher v. Cramer, 18 Ind. 44, has been overruled.</p>

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

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

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

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

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

<p>Contract. — Rescission.—Action to Set Aside Conveyance. — Reconveyance of Consideration. — Where a plaintiff seeks to set aside a conveyance of land to defendant, alleging that his grantor’s title to the land which was the consideration of the conveyance, purchased by the defendant but not conveyed, was defective for non-conformity in the execution and acknowledgment of his deed with the law of Tennessee, of which the grantor was a resident, he will not be permitted to rescind his contract in the absence of an offer to reconvey, the formal defects complained of not rendering the title void.</p> <p>Same. — Rescission.—A person will not be permitted to rescind a contract in order to reclaim what he has parted with and to retain what he has received in the transaction.</p> <p>Deed. — Acknowledgment.—Defective Certificate.— Who may Take Advantage of. —As a general rule, only subsequent purchasers for value can take advantage of the omission of words of identification, or other formal defects in the certificate of acknowledgment.</p>

<p>Will. — Capacity-of Testatrix. — Instruction to Jwry. — An instruction to the jury that a person of unsound mind, all mental defects being included in the word “ unsound,” is incapable of making a valid will, whether or not such unsoundness affected the disposition of the property, is erroneous.</p> <p>Same.— Witnesses. — Credibility of. — Instruction to Jury. — Where a jury is charged that witnesses residing near the testatrix, being more intimate with her, and having better opportunities of observation than those living farther away, other things being equal, are entitled to greater credit, the instruction is erroneous, as an invasion of the province of the jury.</p> <p>Instructions. — Relating to Evidence.— When Ermeous. — It is only the duty of the court, in case of an instruction in regard to the evidence, to look into the record and determine whether there is any evidence to which the instruction is applicable, and if there is, and the instruction is erroneous, and such as is liable to mislead the jury, the judgment must be reversed.</p>

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

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

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

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

<p>Pleading-. — Complaint.— Evidence.— Demurrer.— Harmless Error. — Where the same evidence can be introduced, and the same relief granted, under the second as under the first paragraph of complaint, there is no available error in sustaining a demurrer to the first paragraph, if the demurrer to the second is overruled.</p> <p>Supreme Court. — Reversal of Judgment.— Weight of Evidence. — Where there is evidence tending to support the finding of the court, the Supreme Court will not reverse a judgment on the weight of the evidence.</p> <p>Evidence. — Town Plat. — Exclusion of. — Harmless Error. — When the record of an alleged plat of a town, without date, acknowledgment, or date of recording, is refused admission in evidence, but another plat, conceded to be identical with the one excluded, is admitted, there is no error in excluding it.</p>

<p>Contract. — Specific Performance. — Real Estate. — Conveyance of Wife’s Interest in. — Statute of Frauds. — Debtor and Creditor. — An agreement not in writing, but which it is averred was to be reduced to writing, entered into between a creditor and the wife of his debtor, whereby the creditor agreed, in consideration of the conveyance to him by the debtor, his wife joining, of certain real estate, to convey to the debtor’s wife, upon the fulfilment of certain conditions, an undivided one-third interest in said real estate, falls within clause 4, section 4904, K. S. 1881, and is incapable of specific performance, being a parol contract for the sale of lands, under the statute of frauds.</p> <p>Same. — Execution of Deed. — Failure to Demand. — Fraud.—Conceding that the creditor was morally bound to execute the conveyance to his debtor’s wife, without a demand therefor, no demand being alleged, the failure to do so would not constitute a fraud. To hold so would be to abolish all distinction between fraud and breach of contract.</p> <p>Same. — Demand and Refusal. — Statute of Frauds. — Presumption of Fraud. — If a demand had been made for the execution of the agreement and a refusal, and afterwards a demand for a deed, and a refusal, no presumption of fraud would have arisen such as would have taken the case out of the operation of the statute of frauds; at most, this would have shown an unwillingness to comply with the contract.</p> <p>Pleading. — Fraud, how Pleaded.. — Presumption of Fraud. — IIow Created.— Fraud can not be pleaded in general terms, but the facts or circumstances constituting the fraud must he averred. The presumption of fraud arises from facts or circumstances which tend to show bad faith, and-which operate prejudicially on the rights of others.</p> <p>Appeal. — Partition Proceeding.— When Appeal May be Taken. — Interloctutory Judgment. — Where the action is one primarily for partition, an appeal will not lie from the interlocutory order of the court appointing commissioners to make partition between the parties, hut where the orders for partition and appointment of commissioners are mere incidents to the judgment and decree of the court, and the principal questions involved are the title to real estate, the right to the possession thereof, and the recovery of damages, the judgment of the court as to these questions is a finality, and the right of appeal exists.</p>

<p>Avoid Deed of. — A complaint by a judgment creditor, seeking to set aside a fraudulent conveyance, solely on account of the mental incapacity of the grantor, does not aver a good cause of action. The deed of an insane person can only be avoided by the grantor or his privies in blood or estate.</p> <p>Same. — Suit to Set Aside a Fraudulent Gomiey'ance.— What Constitutes a Good Complaint. — A complaint to set aside a fraudulent conveyance, alleging that the conveyance was accepted by the grantee with knowledge of the fraudulent purpose, and as a mere volunteer, who has paid no consideration, is a good complaint, notwithstanding an averment of the mental incapacity of the grantor.</p> <p>Same. — How Judged. — Isolated Averment. — Effect of. — Surplusage.—A pleading is to be judged from its general scope and tenor. An isolated averment will not be permitted to control the general frame and tenor of the pleading. Such an averment must be treated as mere surplusage, and surplusage will not vitiate a pleading.</p>

<p>Injunction. — Taxes.—Receipts for. — Transfer oftoBa/nlc. — Cash Credit. — Payment. — County Treasurer. — Assignment.—Lien.—Fraud.—Where a county treasurer transfers to a bank receipts for taxes due from it, receiving ■ credit therefor as for so much cash deposited, and checks against it, drawing the amount out of the bank, in the absence of fraud the transaction is consummated as if the bank had paid the taxes in cash and received the money on deposit; and after an assignment by the-bank, an injunction will lie to prevent the enforcement of the alleged lien for said taxes.</p> <p>Bank.— Receipts for Taxes.— Deposit. — When Considered Made. — Pass-book Entry. — Misrepresentations of Solvency. — Although the credit for the amount of the tax receipts is not entered on the books of the bank until five days after it is credited in the pass-book, the deposit will be deemed to have been made when credited in the pass-book; and a county treasurer who after that time cheeks out more than he deposits, including the amount credited for taxes, is uninjured by misrepresentations of the solvency of the bank.</p> <p>Same. — Debits and Credits. — Fktry of. — Balance.— When Considered Stmck.— Where money is paid into and drawn out of a bank, or other debts and credits are entered by the consent of both parties in the general banking account of the customer, a balance may be considered struck at the date of each payment or entry on either side of the account.</p> <p>Same.— Deposit.— Cashier.— Bank-book Entry. — Effect of.— Admissions.— Where a deposit is made, the amount and date thereof being entered by the cashier or teller in the bank-book of the depositor, such entries, when made by the proper officer, bind the bank as admissions.</p> <p>Same. — Checks and Drafts Received as Deposits. — Title to Same. — Diability of Bank. — Depositor.—If checks, drafts, or other evidence of debt are received in good faith as deposits, the bank crediting them as so much money, the title to the checks or drafts is immediately transferred to the bank, which becomes legally liable to the depositor as for so much money deposited.</p>

<p>Municipal Corporation. — Cities.—Common Council. — Jurisdiction.—Local Improvements. — In the matter of local improvements jurisdiction is conferred upon municipal corporations over the whole subject thereof, and the common councils of those corporations are invested with exclusive original jurisdiction.</p> <p>Jurisdiction. — Extent of. — Tribunal.— Cases of a General Class. — Where a tribunal has jurisdiction of a general class of cases, every case of that class is within the subject of the tribunal’s jurisdiction. Any movement in a case belonging to a class over which the tribunal has authority is jurisdiction. Allen v. Jones, 47 Ind. 438, modified; Naünerv. Blake, 56 Ind. 127, distinguished.</p> <p>Same.-— Of Subject and Person.— Void Judgment. — Statutory Requirements. — • Non-Compliance with. — Effect of. — Where it appears that a case is one of a general class over which the tribunal has jurisdiction, the judgment is not absolutely void if the particular subject was within the territorial jurisdiction of the court, and there was jurisdiction of the person, although the statutory requirements may not all have been complied with by the tribunal or its officers.</p> <p>Drainage. — Assessment for. — Common Council.— Jurisdiction of.— Collateral Attach upon. — Suit to Quiet Title. — An assessment for construction of sewer drainage is within the subject of the jurisdiction of the common council, and can not be declared void in a collateral attack to quiet title to land sold for the assessment, unless it appears there was no authority over the particular improvement ordered or the particular property assessed.</p> <p>Same. — Local Assessment. — Sale of Land for.— Quieting Title.— General Decree. ■ —Payment of Lien.— Void Assessment. — One who seeks to quiet title to land sold for an assessment for drainage is not entitled to a general decree while any part of the assessment is due; one who would save his title must pay, or tender payment of, the lien. Unless the assessment is wholly void he is not entitled to a general decree.</p> <p>■ Same.— Way Improved.— Giiy’s Ownership of.— How Disproved — Where an improvement has been made and property benefited, the property-owner seeking afterwards to show that the way improved did not belong to the city, must show that it was not acquired by condemnation, purchase, dedication, or prescription.</p>

<p>Injunction. — Specifications of Cause. — Must be Considered Separately. — Where several specifications oí cause for an injunction are assigned, they must, be considered separately, and they can not aid each other.</p> <p>Same. — Railroad Aid Tax. — Election for. — Attempt to Set Aside.— What Must be Averred. — In such a ease a specification that an election to vote a railroad tax is void because of failure to give proper notice, without an allegation that the board of commissioners did not levy the tax sought to be enjoined, is demurrable.</p> <p>Bailboad. — Tax in Aid of — Tax Duplicate. — Entry upon. — Presumption.— County Commissioners.— Validity of Election. — Collateral Attach. — The appearance of a railroad aid tax upon the tax duplicate creates the presumption that it was levied by the board of commissioners. The validity of the election authorizing it is necessarily reviewed in making the levy, and can not be attacked in an injunction proceeding.</p> <p>Same. — County Commissioners’ Record. — Petition for Tax. — Absence of Formal Order.— Tax lAst Entry. — Effect of. — Where the proceedings of the board of commissioners contain no formal order granting the prayer of a petition for a railroad aid tax, an entry of the tax in the tax list of the township petitioning for it is sufficient to show that it was assessed.</p> <p>Evidence. — Cownty Commissioners’ Record. — Entry in. — Parol Testimony.— Inadmissibility of. — Parol testimony is inadmissible to prove that an entry in the commissioners’ record, properly signed and attested, was placed there without their authority. It is wholly immaterial who prepared the entry, or that it was prepared with or without the authority of the board of commissioners. If they adopted and passed it, it was as effectual as if it had been prepared by their order.</p> <p>Same. — Tax Duplicate. — Admission of in Evidence. — The admission in evidence of a tax duplicate showing that one who seeks to enjoin the collection of a railroad tax is delinquent as to other taxes, is not objectionable.</p> <p>Pleading. — Injunction Proceeding. — Complaint.—Demurrer.— Where a demurrer is sustained to certain specifications in one paragraph of complaint for injunction and is overruled as to the same specifications in a subsequent paragraph, there is no available error.</p>

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

<p>Railroad. — Freight Train. — Injury to Passenger. — Refusal to Leave Platform. —Assumption of Bisk. — A passenger who remains on the platform of a car at the rear end of a long freight train, after a request or order from the employees of the railroad to enter the car, voluntarily occupies a place of danger, and assumes the risk of being thrown from the car and injured by the sudden jerk of the train on being put in motion.</p> <p>Same. — Mode of Travel Adopted. — Bisks Incident to. — Passenger’s Assumption of. — Passengers assume the risks incident to the means of transportation adopted, and one who takes passage on a freight train, although with a caboose attached, must take notice of the character of the train and use such ordinary care to avoid injury as the nature of the mode of travel will admit; one of the risks to be guarded against being that arising from the sudden jerk of the train on starting, due to the taking up of slack between the cars.</p> <p>Same. — Direction of Company’s Employees. — Passenger’s Observance of. — Resulting Injury. — Garner’s Liability. — A passenger is justified, as a general rule, in obeying the directions of the employees of the carrier, and if he receives injury in obeying them, the carrier is liable, even if it appears that if the passenger had not obeyed he would have escaped injury.</p> <p>Same. — Instruction.—Garner’s Liability. — Erroneous Statement of — An instruction which states in substance that notwithstanding the warning given to the passenger, and his disobedience of the same, he would be entitled to recover, if the conductor of the train, at the moment of giving the signal to start, saw the passenger in a position which the conductor knew to be dangerous, and without giving him a reasonable time to enter the car, and by a sudden jerk in starting the cars the passenger was injured,-is erroneous.</p>

<p>Insurance. — Husband and Wife.- — Parties.—Gomplaimt.— Wife’s Interest in Policy. — Failure to Aver. — A complaint by a husband and wife, in a joint action on an insurance policy, issued to the husband alone, which fails to aver that the wife ever acquired any interest in the policy, is bad for a failure to state facts sufficient to constitute a cause of action.</p> <p>Same — Separate Peal Estate of Wife. — Husband has no Insurable Interest in.— Sections 5116 and 5117, E. S. 1881, of the “Married Women’s” Act, take away from the husband all right to the possession or control of the wife’s separate estate. He has no present right of enjoyment, and no interest in the rents and profits of his wife’s real estate. A policy of insurance secured thereon by the husband, who has no insurable interest therein, is unenforceable.</p>

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

<p>Married Woman. — Husband and Wife. — Estate by Entireties.— Void Mortgage. — Contract of Suretyship. — Where husband and wife hold an estate by entireties through a conveyance made to diem jointly, his note being-accepted for the purchase-money, the debt is his, not hers, and a. mortgage to secure the note executed by both is, under section 5119, B. S. 1881, void as against the wife.</p> <p>Same. — Mortgage.—Oral Negotiations and Stiptdations. — Merger of. — In an action to foreclose said mortgage, neither fraud nor mistake being alleged, all oral negotiations and stipulations are merged in the contract, as reduced to writing in the execution of the deed, note, and mortgage.</p> <p>Action. — Parties to. — Husband and Wife. — Joint Assignment of Errors by.— Where husband and wife are parties to an action they may join in an-assignment of error as to rulings which affect the wife alone, the rule in 110 Ind. 131, not being applicable to husband and wife.</p>

<p>Natural Gas. — Transportation of. — Interstate Commerce. — Constitutional and Unconstitutional Provisions. — Interblending of. — The act of March 9th, 1889, Acts of 1889, p. 369, has for its object to prevent persons from conveying natural gas from this state into another state, with the imposition of penalties for so doing, and is unconstitutional, being legislation in reference to interstate commerce. The provision of the act as to the sinking of wells, is so bound up with the provisions designed to* effect the principal object that separation can not be made, without completely destroying the statute, and substituting another for it by judicial construction.</p> <p>Same. — Commercial Commodity.— When it Becomes. — Natural gas in the earth may not be a commercial commodity, but when brought to the surface and placed in pipes for transportation, it assumes that character as completely as coal on the cars, or petroleum in the tanks.</p> <p>Constitutional Law. — Interstate Commerce.— Commercial Commodities.— Transportation, of Between States. — Transportation of commercial commodities from state to state is interstate commerce, and the state legislature can neither burden nor réstriet it.</p> <p>Same. — Foreign Corporations. — Legislative Power over. — Limit of. — While the legislature may regulate or restrict the business of foreign corporations within the state, it can not do so where it operates upon interstate commerce.</p> <p>Same. — Bights of Property. — Legislative Control of — It is not in the power of the legislature to prevent one person from buying, or another from selling property. The rights of property are not subject to such absolute legislative control. This is the general rule, and it applies to such property as natural gas, petroleum, and coal.</p> <p>Same. — Police Power. — Exercise of by the State. — The states may, so long as they do no moré than legitimately exercise the police power, legislate upon matters connected with interstate commerce. The act under consideration, however, can not be deemed a legitimate exercise of the police power of the state. It does not assume to provide for the safety, health, or comfort of the citizens of the state.</p> <p>Same. — -Provisions of a Statute. — Separation of.— When can not be Made. — When the provisions of a statute are so closely blended that a separation can not be effected without substituting another law for that intended to be enacted, none can be made by the courts.</p>

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

<p>Mortgage. — Purchase-Money.—Non-Joinder of Wife. — Foreclosure.—Right of Redemption by Surviving Wife. — Where a wife does not join in a purchase-money mortgage on real estate, and the mortgage is foreclosed, she not being made a partylto the foreclosure proceeding, and the premises sold, the wife, upon the death of her husband, has the right to redeem from said sale. Until her husband’s death she had no claim, legal or equitable, upon the land. Not having been made a party to the action, she was not affected by the decree of foreclosure.</p> <p>Same.— Wife’s Inchoate Interest. — Right of Redemption.- — Immediately upon the death of her husband, by virtue of section 2491, R. S. 1881, the title to one-third of the said real estate, the husband’s estate being worth less than $10,000, vested in the surviving wife, subject to the said mortgage indebtedness, and then, and not until then, her right to redeem came into existence.</p> <p>Same. — Mortgagee in Possession. — Bents and Profits. — Improvements.—Surviving Wife.— What Charged with. — The appellant in this case having bought the said real estate from the purchaser at the sheriff’s sale, as against the surviving wife, occupies the position of a mortgagee in possession; he is chargeable with the rents and profits from the date of the death of the husband, and she is chargeable with the mortgage debt and interest' thereon at six per cent, per annum, and likewise for taxes paid, together with the cost of improvements made by the appellant and his grantee.</p> <p>Same. — Action to Bedeem. — Statute of Limitations. — Demand.—Tender.—Section 294, B. S. 1881, governs the time within which the action to redeem must be brought, and the surviving wife had fifteen years from the death of her husband to institute her suit. She was not bound as a condition precedent to the bringing of the action to redeem to make a demand or a tender.</p> <p>Practice. — Decree.—Proper Form of. — For the proper form of decree in such a case, see the closing part of the opinion.</p> <p>Same.— Unavailable Error. — "Where an error has been made in a decree by which the appellant is not injured, hut benefited, he can not complain thereof.</p>

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

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

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