Volume 121 — Indiana Reports

<p>Evidence. — Motion to Strike Out. — It is not error to overrule a motion to strike out evidence where part of the evidence embraced in the motion is competent.</p> <p>Special Verdict. — Finding.—Material Facts. — Judgment.—The party having the burden can not have judgment unless the special verdict finds all the facts essential to a recovery.</p> <p>Same. — -Form of.— Venire de Novo. — Practice.—In the absence of a motion for a venire de novo, ór a motion to remand the case to the jury, no question is presented as to the form of the verdict.</p>

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

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

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

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

<p>Constitutional Law. — Department of Geology. — Appointment of Officers.— Provision Relating to.— Unconstitutionality of. — The act of the General Assembly (Elliott’s Suppl., sec. 1863), establishing a department of geology and natural resources, four divisions being included, whose chiefs are to be appointed by the director of the department elected by the Legislature, is unconstitutional and void, falling within the inhibition of article 3, section 1, of the Constitution, in so far as it seeks to deprive the executive of the State of his constitutional prerogative to fill by appointment vacancies in the offices named.</p> <p>Same. — Inspector of Mineral Oils. — State Office. — Creation of by Legislature.— Vacancy. — Governor’s Right to Fill. — The inspector of mineral oils, one of the divisions above named, is a State officer, and the office a State office, and the Legislature having created the office, but having no power itself to fill it, or to vest the director of the department with the power, on the instant of its creation the office was vacant, and the Governor had the right to fill by appointment such vacancy.</p> <p>Same. — Appointing Power. — Executive Function. — When Legislature may Exercise. — While the power to appoint to office is intrinsically an executive function it is exercisible by the Legislature, or the courts, as an incident of the principal power, i. e., where necessary to the exercise of such legislative or judicial power.</p> <p>Same. — Residuum of Power.— Where Resident. — The residuum of power abides with the people, and the three governmental departments have only such power as has been delegated to them in the Constitution.</p> <p>Same. — Appointment of Officers. — Section 1 of Article 15 Construed. — Under article 15, section 1, of the Constitution, providing for the appointment of officers not otherwise provided for in that instrument, the Legislature, where the Constitution does not provide otherwise for the filling of a vacancy in an office, may provide the manner in which it shall be filled; but unless it is an office created for the purpose of enabling one of the other departments the better to perform its functions the power of appointment must be lodged with the executive department.</p> <p>Same. — Legislature.—Article 15, Section 1. — Appointing Power Conferred by.— Article 15, section 1, confers no appointing power on the Legislature except as to offices in existence when the Constitution came into force.</p> <p>Same. — Officers.—Provisions for Appointment. — Present Constitution. — Departure from the Old. — Presumption.—All the officers provided for in the present Constitution having been made elective by the people, a radical departure from the provisions of the old Constitution, and other State offices soon after the adoption of the new Constitution having been created and made elective, the presumption is that all State offices are elective, and that vacancies may be filled by executive appointment until a general election by the people.</p> <p>Same. — Pleading.—Complaint.—Insufficiency of. — The said office being a State office, the Legislature could not delegate the power of appointment to it to another State officer, and a complaint by a relator seeking to recover possession of the office against an appointee of the director of the department elected by the Legislature, which fails to allege the relator’s appointment by the Governor, is technically bad.</p> <p>Elliott, C. J., and Mitchell, J., dissent.</p>

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

<p>Decedents’ Estates. — Administraíor’s Sale. — Agreement of Widow.— Void Sale. — Where real estate of a decedent, mortgaged to secure debts, is sold by order of the probate court upon application of the administrators, the widow and her children being made parties to the proceeding, the former by an instrument in writing waiving the publication and posting of notice required by statute and assenting to the sale of the whole, upon agreement that one-third of the proceeds should be paid to her, the sale is void, the probate court having exceeded its jurisdiction.</p> <p>Same. — Invalid Order of Sale. — Heirs’ Assertion of Title. — Estoppel.—The right of the heirs to assert title to the undivided one-third of the land is not affected by the invalid order of sale, unless their ancestor, through whom they claim, received the purchase-money, or was estopped to assert title by making the administrators her agents. If she received and retained her share of the purchase-price, the widow, as well as the heirs, would be estopped.</p> <p>Special Fiumira. — Venire de Novo. — Informed Motion Fen'. — New Trial — Supreme Court. — Where the facts found in a special finding, after eliminating the evidence set forth,' are wholly insufficient to support any judgment, although the motion for a venire de novo is informal, the .Supreme Court will order a new trial, to the end that justice may be done.</p>

<p>Township Trustee. — Inability of Outgoing Trustee. — Comity Commissioners. —Settlement with. — Where a township trustee seeks to recover from his predecessor in office a sum of money which he claims the outgoing trustee failed to pay over on demand, he can not do so after making a written report to the board of commissioners wherein he claimed credit for the same money as that for which he sues, and the claim was allowed and credit given him, until the order of the board of commissioners approving the report is set aside.</p> <p>Same. — Money Advanced by. — Credit for. — Nominal Damages. — Where a township trustee pays out money for the township, on claims justly due from the township, he is entitled to a credit for it. If he pays money after the specific fund out of which the money should have been paid has been exhausted, he is entitled to be reimbursed, and can not be held liable for anything more than mere nominal damages. It makes no difference if the books show that the trustee is indebted to some of the funds, if in point of fact he is, upon a settlement of all accounts, a good faith creditor of the township.</p>

<p>Pleading. — Averments—Should be Direct and Certain. — All averments in a pleading should he direct and certain, and not in the alternative, or in ambiguous language.</p> <p>Corporation. — Liability of Stockholders. — Section 3869,B. S. 1881, Construed.— Under the first proviso of section 3869, R. S. 1881, relating to the liability of the stockholders of a corporation, the party sued must be a stockholder, or member of the corporation, and a subscriber for unpaid stock; . and his liability is only to the corporation, or its receiver. A subscriber for stock, who is not also a stockholder, is not liable on account of the statute, but simply on his subscription.</p>

<p>Decedents’ Estates. — Estate Taken by Intestate in Consideration of Love and Affection. — Quantity of. — Section 2473, B. S. 1881, of the statute regulating the descent and distribution of intestates’ estates, providing that “ An estate which shall have come to the intestate by gift or by conveyance in consideration of love and affection, shall, it the intestate die without children or their descendants revert to the donor, if living, at the intestate’s death,” does not create an estate in reversion in the donor, nor does it annex any condition to the estate of the donee, which is a fee simple absolute.</p> <p>Same. — Donor Takes as Heir. — Chargeable with Debts of Donee. — The donor, on the death of the donee, takes the estate as lieir, not as reversioner or remainder man, and charged with his debts.</p> <p>Guardian and Ward. — Death of Ward. — Sale of Real Estate to Pay Debts.— Validity of. — Order of Court. — •'Where an order is obtained from the court by a guardian to sell the estate of his ward to pay debts, and the ward having died before the sale, the proceedings are.continued, the provisions of the statute (section 2523, E. S. 1881) being complied with, a sale made by the guardian under the order already obtained, and duly confirmed by the court, is a valid sale.</p>

<p>Judgment. — Promissory Note. — Joint Makers. — Merger.—Non-Resident. — A judgment against one of the joint makers of a note does not merge the cause of action and bar a separate action against the other maker where he is a non-resident, and not made a party to the former suit.</p> <p>Same. — Joint Obligors. — Note Executed by One. — Judgment upon. — Action.— Merger. — Where a note is executed by one joint obligor in consideration of their joint indebtedness, a judgment upon it is not a merger of the right of action against the other joint obligor, the right of proceeding against him having been expressly reserved.</p> <p>Promissory Note. — Principal and Surely. — Extension of Time. — Release of Surety. — Cognovit. — The acceptance by the payee of a promissory note from the principal, payable one day after date, and a cognovit confessing judgment on the same and shortening the time of obtaining it, there being no agreement by the payee not to proceed on the old indebtedness until the note becomes due, does not constitute an extension of time within the rule releasing sureties.</p>

<p>Mobtgage. — Registry Law. — Purchase-Money.—Priwity.—Rights of Assignee. —Notice.—A purchase-money mortgage executed to the vendors of land, through neglect of the justiee of the peace with whom it was entrusted,was not recorded till after the recording of a junior mortgage executed by the vendee to secure a note given for money already obtained to make the cash payment on the land ;</p> <p>Held, in an action by the assignee of the junior mortgage, who had taken the assignment of the mortgage after the purchase-money mortgage was recorded, and from one chargeable with notice, that the assignee was himself chargeable with the notice of its existence; and that it was his duty to ascertain from the records the condition of the title at the time he acquired his mortgage.</p> <p>Same. — Mortgage to Secure Gash Payment. — Agreement to Execute. — Rights of Vendor. — An agreement by one who intends to buy land to execute a mortgage to one from whom he borrows money will not prejudice the rights of the vendors under a mortgage executed to secure the unpaid purchase-money.</p> <p>Same. — Money Advanced to Buy Land. — Subrogation.— Vendor’s Lien. — One who advances money to buy land is not entitled to be subrogated to the rights of the vendor where it would result in defeating the vendor’s lien for the unpaid purchase-money.</p>

<p>Pabtnebship. — Instruction.—Partnership Interest. — Pwchase of by One of the Partners. — An instruction which assumes that the purchase hy one of three partners of the interest of one of the partners in the firm business, is such a transaction as authorizes the purchaser to bind the third partner without his knowledge or consent, is erroneous.</p> <p>Same. — When Partners not Agents for Each Other — Partners are not agents for each other in transactions which relate to the formation or dissolution of the firm, or concerning the disposition of the firm property to each other. The purchase hy one partner of the interest of another in the firm property is not a partnership transaction.</p> <p>Same. — Sale of Partnership Interrest. — Promissory Note for. — Partner's Lack of Authority to Give. — Notice of. — Subsequent Ratification. — The effect of a sale hy one partner of his interest in the business, to whoever made, is a dissolution of the firm, and the purchasing partner has no implied authority to sign the name of the remaining partner to an obligation without his consent. One taking a note with knowledge that it is so given can not claim that he had no notice of the want of authority of the partner who signed the note. Unless the continuing partners subsequently ratify the transaction in some way, they are not bound.</p> <p>Same. — Promissory Note. — Plea of Non Est Factum.— What Plaintiff must Prove. — The execution of the note having been denied under oath, it was essential to a recovery that the plaintiff should prove that it was given in a transaction within the scope of the partnership business.</p> <p>Instbitctiobs to Jtjby. — Contradictory Instructions.— Owing of Not a Harmless Error. — When instructions given are contradictory, and necessarily/ tend to confuse and mislead the jury, or when they are not applicable to the evidence, and are liable to have a like effect, the error can not be regarded as a harmless one.</p>

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

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

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

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

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

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

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

<p>Bill of Exceptions. — Date of Presentation to Judge. — Must be Stated, in the Dill. — In order that a bill of exceptions may become a part of the record, it must be presented to the judge within the time limited, and the date of its presentation must be stated in the bill.</p>

<p>Cobober. — Post-Mortem, Examination. — Physician.—Compensation.—A physician employed by the county to treat the poor of the asylum when sick, is entitled to recover for the value of his services rendered at the request of the county coroner in making a post-mortem examination of the body of one of the dead paupers who has come to his death by casualty.</p>

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

<p>Former Adjudication. — Vendor's Lien. — Action to Foreclose. — Mortgage.— Prior Foreclosure Suit. — Pleading.—Answer.—In an action against the heirs of a decedent to foreclose a vendor’s lien for unpaid purchase-money, the answer alleged a prior suit, — the plaintiff and the defendants in the present action being made parties thereto, the plaintiff appearing and setting up the vendor’s lien, — to foreclose a mortgage covering the real estate against which the vendor’s lien is now sought to be enforced, a judgment adverse to the plaintiff in the foreclosure suit, and a decree quieting defendants, title against all the parties to the suit except ■ the mortgagee, whose mortgage, upon his cross-complaint, was foreclosed.</p> <p>Held, that the answer did not show a good defence of former adjudication as against the holder of the vendor’s lien.</p> <p>Same. — Foreclosure.—Judgment.— Upon. Whom Conclusive. — Parties.—A judgment in a foreclosure suit, or in a suit to quiet title, is conclusive of any claim or title adverse to the plaintiff in that case, as against all who were made parties; but those who were strangers to the controversy in which the judgment was rendered are not precluded from again bringing the same matter in contest.</p> <p>Same. — How Limited. — Parties and Privies. — In actions in personam,, the doctrine of former adjudication is limited to parties to the issue on which the jndgment was pronounced and privies. The party who invokes the doctrine of former adjudication must'be one who tendered to the other an issue to which the latter could have demurred or pleaded.</p> <p>Same. — Co-Defendants.—Issue with Plaintiff. — Judgment.—Effect of. — Where one of two defendants makes an issue with the plaintiff, a judgment settling the issue so made in favor of the defendant does not determine the question between the co-defendants.</p>

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

<p>Deed,— Judgment Creditor.— Unrecorded Deed. — Equities.—Where a writ of attachment was issued against A. on October 28th, 1884, and judgment rendered in the plaintiff’s favor on January 8th, 1885, and on July 31st, 1886, in pursuance of an order of sale made on July 7th, 1886, a piece of land was sold to the judgment plaintiff to satisfy said judgment, the purchaser at such sale did not acquire any title as against one in possession claiming under a deed for said land, executed by A. on August 1st, 1884, to B., who paid a valuable consideration for the land, and purchased it in good faith, but who did not record his deed until May of the following year.</p> <p>Same. — Sheriff’s Sale.— When Title Passes. — The purchaser at the sheriff’s sale did not obtain title to the land by the sale, for title does not pass until the year for redemption expires and a deed is executed by .the sheriff. If it were conceded that he acquired title at the time of the sale, it would not aid him, for at that time the deed was of record, and he was bound to take notice of it.</p> <p>Same. — Registry Law. — Pre-Existing Debt. — Solder of Claim for. — Bona fide Purchaser. — A creditor holding a claim for a pre-existing debt, is not a bona fide purchaser within the meaning of our registry law. No lien has been released, nor any money advanced by the creditor on the faith that his debtor continued to be the owner of the land. It is only those • who stand in that position that our registry law protects against unrecorded deeds.</p> <p>Same. — Registration of Deed. — Effect of. — The registration of a deed adds nothing to its effectiveness as a conveyance; all that it accomplishes is to impart notice.</p> <p>JuDSMEtiT. — Lien of. — The lien of a judgment or attachment does not extend beyond the interest of the debtor in the land. It does not displace prior equities or rights.</p> <p>Same. — Judgment Creditor. — Purchaser at Sheriff’s Sale.— What He Acquires. —A judgment creditor who buys at his own sale, acquires only the interest which the judgment debtor had in the property at the time the judgment was entered.</p>

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

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

<p>Special Jud&e. — Appointment.—Objection.—Supreme Court. — Where no objection is made to the appointment of a judge or to his authority to act as judge pro tempore at any stage of the proceedings, an objection to his appointment will not be considered by the Supreme Court.</p> <p>Practice.— Venire de novo. — Special Finding. — A venire de novo will not be granted for any other cause than a defect in the form of the special finding.</p> <p>Guardian and Ward. — Partition.—A guardian is authorized by sections 1394 and 2542, R. S. 1881, to institute an action of partition in the ward’s behalf and prosecute it in his own name.</p> <p>Beal Estate. — Adverse Possession. — Color of Title. — Continuous possession of real estate under claim of ownership for thirty years or more confers a complete title. The adverse possession need not he under color of title in this State.</p> <p>Tax Sale. — Deed.-— What Claimant Must Show. — One making a claim of ownership to real estate under a sale for delinquent taxes, must establish affirmatively that all the requirements of the law, from the listing of the property to the execution of the deed, were strictly complied with,</p> <p>Partition. — Action.—Statute of Limitations not Available. — An action for partition is not an action for possession, and the statutory five years’ period of limitation is not available to one resisting it.</p> <p>Husband and Wire.— Antenuptial Agreement.— Marital Bight.— Will.— Life-Estate. — Where, by an antenuptial agreement upon a valuable consideration, the husband deprives himself of his marital rights in his wife’s land, and by the will of the testatrix takes a life-estate in the whole of the real estate, setting up no other claim to the real estate, he will be deemed to have accepted the provisions of the will, and no one else can interpose any other claim in his behalf.</p> <p>Will. — Construction of. — Failure to Name Executor. — Tenants in Common.— Partition. — Where real estate is devised to one for life, and after his death the proceeds of the sale thereof, directed by the will to he made, to certain named devisees, no executor being named in the will — the manner of making the sale, and by whom, being unprovided for — the devisees become tenants in common of the real estate after the death of the life-tenant, and may maintain partition.</p> <p>Tenants in Common. — In Exclusive Possession.- — -What Chargeable with. — A tenant in common who has been in exclusive possession, denying the rights of other tenants in common, must account for his own use and occupation as well as for rents received from third persons.</p>

<p>Jurisdiction. — Statute.—Construction.—Under section 312, E. S. 1881, when there are several defendants, and the court obtains jurisdiction over one of them, it has jurisdiction over all others residing within the State by issuing and serving process on them.</p>

<p>Pleading. — Demwrer.—Incapacity to Sue. — A demurrer to a complaint,, assigning as cause that the plaintiff has no legal capacity to sue, has, reference only to some legal disability of the plaintiff, such as infancy,, idiocy, or coverture, and not to the fact that the complaint does not show a right of action in the plaintiff.</p> <p>Same. — Demurrer.—Party Plaintiff. — A demurrer assigning as cause, “ that there is not any proper party plaintiff” in said action, does not allege one of the six statutory causes of demurrer to a complaint (section 339, K. S. 1881), and presents no question for the consideration of tbe= court.</p>

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

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

<p>GuABDIAN and Wabd. — Payment to Guardian by Mistake. — Liability of Surety. — Where money has been paid by mistake by the administrator of an estate to a guardian, and the guardian in making his report to the court charged himself with such overpayment, an action can not be maintained on his bond in favor of the wards for the recovery of such sum of money. The money was not that of the wards, and the surety on the guardian’s bond is not liable for its misappropriation.</p>

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

<p>Decedents’ Estates. — Legacy.—Account Current. — Mistake in. — Correction of. — Where a legacy was allowed by the executor, and in his account current he reported that he had paid the same, and claimed and received credit for it, when, in fact, the legacy had not been paid, the legatee may maintain an action to correct the misstatement in the account current. The legatee is not bound to sue the executor on his bond, nor is he bound to file a claim against 'the estate.</p> <p>Same. — Correction of Reports and Accounts. — Under the provisions of the statute the court has the power to make corrections in the record, and to cause mistakes in accounts current to be rectified. Until the final settlement is made accounts and reports may be reviewed and errors corrected.</p> <p>Same. — Action.— Will. — Exhibit.—The will was not the foundation of the action in this case, and it would have been bad pleading to have made it an exhibit to the complaint.</p> <p>Same. — Parties.— Who not Necessary. — The heirs of the executor, he being dead, were not necessary parties to the action, nor was it necessary to make his administrator a party.</p> <p>Bill oe Exceptions. — Oral Evidence.— When Must be Embodied. — Oral evidence must be embodied in the bill of exceptions before it is signed by the judge. It is only by virtue of the statute that written instruments can be made part of the bill by reference.</p>

<p>Easements. — Adjmning Lot- Owners. — Lateral Support. — Removal of. — Measure of Damages. — A lot-owner has the legal right to the support to his lot from the adjoining land. If such support he removed, and, by reason of such removal, his lot caves and is injured, by reason of which he suffers damages, he has a right of action against the person removing the support for the amount of the damage sustained to his land The measure of damages is the diminution in the value of the lot.</p> <p>Same. — Injury to Buildings. — Instruction.—An instruction which, upon fair interpretation, stated to the jury that one removing the lateral support of an adjoining lot would be liable to the lot-owner for the damages resulting to the buildings thereon, regardless of the manner in which the same was done, whether the injury was caused by the negligent and careless manner in which the dirt was removed, or whether it was removed in a careful or prudent manner, is erroneous.</p> <p>Witness. — Becall 'of. — Cross-Examination.—To what Limited. — Where a witness is recalled and examined as to particular facts, it is proper to limit the cross-examination to the particular matters testified to by the witness when recalled.</p>

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

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

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

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

<p>Judgment. — Default.—Courts Adjournment. — Vacation.—Where a defendant, duly served with process, is notified to appear at a day in regular term, but by reason of the court’s adjournment before the day fixed the appearance day falls in vacation, the action of the court in adjourning, it being the duty of the defendant to appear and defend, does not prejudice the rights of the plaintiff, and a default and judgment against the defendant will not be set aside.</p>

<p>Common Cabbies. — Loss of Baggage. — Salesman’s Catalogue. — Agent’s Negligence. — Liability of Principal. — Where a valise given in charge of the agent of one engaged in transferringbaggage to be conveyed from one depot to-another is lost through the agent’s negligence, the carrier is liable for the value of the contents of the valise, including a travelling salesman’s catalogue, a book carried with him for his personal use and convenience, used by him in his business and necessary to be carried in the discharge of his duties.</p>

<p>'Tbespass. — License.—Fraud.—Pleading.—Reply.—Demurrer.—Where, in an action in trespass for entering upon the plaintiff’s premises and into his dwelling-house, it being alleged by way of aggravation that the defendant having wrongfully entered, attempted to seduce the plaintiff’s wife, the defendant answers, in justification, that he entered by plaintiff’s license, a reply admitting the license but charging that the plaintiff’s consent to his entering upon the premises was fraudulently obtained, no facts being averred constituting the fraud, is subject to a demurrer.</p> <p>Same. — Evidence.—Demurrer.—It appeared in the plaintiff’s evidence that he had borrowed the defendant’s shovel, and the latter, his neighbor, entered upon the plaintiff’s premises, with his consent and authority, to obtain possession of it. Prom this evidence the inference could not be drawn that the defendant was a trespasser, and to it a demurrer was properly sustained.</p> <p>PbAED. — False Representation. — Zb Whatit must Relate. — A false representation, in order to be available as a cause of action or defence, must relate to some existing or past fact, and not merely be a promise as to future ■conduct or intention.</p>

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

<p>Pleading. — Demurrer.—When will Die. — A demurrer will lie only where the pleading is so indefinite and uncertain as entirely to fail to state a cause of action.</p> <p>Bailkoad. — Aid Tax. — Defieieney.—Additional Levy. — Taxpayer.—Bight of. Petition. — County Commissioners. — A taxpayer has the right to compel an additional levy sufficient to pay the amount voted to a railroad company, or he may petition the hoard of commissioners to order the necessary assessment.</p>

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

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

<p>Quieting Title. — Good Complaint for.— What Constitutes. — A complaint which alleges that the plaintiff is the owner of certain real estate; that the defendant wrongfully assorts title to it, and that he has no interest in or title to the same, is a good complaint to quiet title, although in addition damages are claimed by reason of certain false and slanderous statements which it is averred the defendant made concerning the plaintiff’s title to the property, and which prevented its sale.</p> <p>Same. — Cross-Complaint.—New Trial as of Might. — Plea in Bar. — Demurrer.— In a suit to quiet title the defendant filed a cross-complaint, asserting a lien on the real estate in controversy; which lien was upheld by the court, and the land ordered to be sold to satisfy it. The plaintiff filed a motion for a new trial, as matter of right under the statute, and the court sustained the motion as to the issue joined, on the complaint, but denied it as to the judgment rendered on the issue joined on the cross-complaint. The defendant then pleaded the recovery on his cross-complaint in bar to the further prosecution of the suit, and a demurrer to this plea was overruled.</p> <p>Held, that it was error not to have granted the new trial as matter of right as to the whole case, and that the demurrer should havcbeen sustained.</p> <p>Same. — New Trial as of Might. — Form of Issues Immaterial. — Where the title to land, or a claim to an interest or lien therein is asserted, and the plaintiff seeks to remove it, and thus clear his title from the claim which clouds it, the losing party is entitled to a new trial as of right, no matter what form the issues may assume.</p>

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

<p>Erom the -Madison Circuit Court.</p>

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

<p>From tlie Orange Circuit Court.</p>

<p>Jubisdiction. — Justice of the Peace. — Appeal.—Increased Judgment. — Where an action is commenced before a justice of the peace, and a judgment rendered in favor of the plaintiff, and an appeal is taken to the circuit court, and the plaintiff there files a reply, increasing the amount of his demand, but which added to the amount originally claimed to be due does not exceed the sum of two hundred dollars, the action was properly instituted before a justice of the peace, although judgment was rendered on appeal for more than two hundred dollars, such excess being for interest which accrued after the action was instituted, or for attorney’s fees occasioned by the appeal.</p>

<p>Pleading. — Complaint.—Foreclosure of Mortgage. — Tenants by the Fhtñreties.— Where real estate owned by the husband and wife, as tenants by the entireties, was mortgaged by them, each signing the mortgage and note, an averment in a complaint to foreclose the mortgage, that the loan was made to them jointly, raises the presumption that the wife was a principal and not the surety of her husband, and state a good cause of action against them as principals.</p> <p>Same. — Amendment of.— When may be Made. — In a suit to foreclose a mortgage the court permitted the plaintiff to amend his complaint after the cause had been submitted to it for its decision, by adding after the word “ dollars,” in the original complaint, the words “ for their joint use and benefit.”</p> <p>Held, that it was in the discretion of the court to permit such amendment to be made.</p> <p>Same. — Abuse of Discretion by Court. — It is not error to allow amendments to conform the pleadings to the evidence after the cause has been finally-submitted to the court or jury trying the same, where the amendment does not change the cause of action or defence, unless the circumstances . are such as to show an abuse of discretion.</p>

<p>Tenants in Common. — Occupying Claimant. — Rents and Profits. — Accounting. — Improvements Made under Claim, of Title. — The owner of an undivided interest in land who occupies the whole estate in good faith, under claim and color of title to the whole, and has made permanent and valuable improvements under the mistaken belief that he is the owner of the whole estate, is only accountable, unless some peculiar circumstances are shown, for the fair rental value of the property, in the condition in which it was when he took possession.</p>

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

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

<p>Seduction. — Means Employed.— Complaint.— What must be Averred. — In an action for seduction it is unnecessary to aver in direct terms that the promises of the seducer were relied on. A general statement of the means resorted to for the purpose of seducing an unmarried woman will make the complaint good as against a demurrer, and the remedy of the defendant, if he deems the complaint vague and indefinite, is by a motion to make it more specific.</p> <p>Same. — Action far.— Woman of Nonage may Maintain. — A woman of nonage may maintain an action under our statute for her own seduction.</p> <p>Same. — Evidence.—Continued Conduct of Defendant may be Shown. — It is competent for the plaintiff to give evidence tending to show that she and the defendant were together during the time in which she alleges that he importuned and persuaded her to yield, and to show that they were in a place where it was likely that sexual intercourse would take place. The plaintiff is not confined to evidence of one act, nor to evidence cov-' ering one particular day or week, but she has a right to give evidence covering many acts, and extending over a considerable period of time.</p> <p>Same. — Resulting Consequences. — Assessment of Damages. — Jury.— The plaintiff may prove the consequences resulting from the defendant’s wrong, such as pregnancy, child-birth, and sickness, which may be considered by the jury in the assessment of damages.</p>

<p>Criminal Law. — Abduction.—Indictment.—Insufficiency of. — An indictment under section 1993, K. S. 1881, providing that “ Whoever entices or takes away any female of previous chaste character from wherever she may be to a house of ill-fame or elsewhere, for the purpose of prostitution, shall be imprisoned,” etc., must aver that the female was enticed or taken to a house of ill-fame or to a house of like character.</p> <p>Same. — Indictment.—An averment in the indictment that the female was taken to a place named, “for the purpose of unlawfully and feloniously prostituting her,” is not equivalent to the words of the statute, to wit, “ for the purpose of prostitution.”</p>

<p>Pleading.— Comity. — Bridge. — Negligence.—Injury. — Proximate Cause. — Complaint.— What Must be Averred.- — Where in an action to recover damages for an injury to a horse caused by the negligence of the county in suffering a bridge to become unsafe, the complaint alleges the unsafe condition of the bridge and the injury, but fails to show any connection between the two facts, there can be no recovery. In every such case the plaintiff must show that the unsafe condition of the bridge was the proximate cause of the injury.</p>

<p>Practice. — Trial without Issue.— Waiver. — Where the parties go to trial before the cause is at issue, they waive all questions which would otherwise be available to them because of the absence of the necessary pleadings.</p> <p>Special Finding. — Practice.— Venire de Novo. — A venire de novo will not be awarded where the special finding or special verdict is not defective in form.</p> <p>Same. — Failure to Find Fads. — New Trial. — If the verdict or finding does not cover all the issues in the case, or all the material facts involved in any of the issues, the remedy is by a motion for a new trial, and not for a venire de novo. ■</p> <p>Same. — Omission of Material Foot. — Presumption as to Fkidenee. — Where a fact material to any issue in the case is omitted from the special finding or special verdict, the presumption is that there was not evidence sufficient to establish the fact, and the omission is equivalent to a finding against the party having the burden of the issue as to that particular fact.</p> <p>Fbatjdtjlent Conveyance. — Creditors Sill to Set Aside. — Intent.—A Question of Fad. — Special Finding. — The question of fraudulent intent is a question of fact, and not of law, under the statute of this State, and in an action in the form of a creditor’s bill to set aside a conveyance as fraudulent, where there is a special finding, a fraudulent intent must be found as a fact, otherwise the conveyance can not he held to be fraudulent as to creditors.</p> <p>Same..— Wife’s Inchoate Interest. — Sight of Disposal in Fh.change. — A wife, having an inchoate interest in the real estate of her husband, has the right on the exchange of his land for other land, to sell her inchoate interest for the best price possible, if she acts in good faith, without reference to her husband’s financial condition.</p>

<p>Pbactice. — Instructions.—Instructions to become a part of the record must he signed by the judge and filed by the proper officer.</p>

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

<p>Injunction. — Free Gravel Roads. — Appropriation of Material for. — Assessment of Damages. — Injunctive relief will not be granted to an owner of gravel to prevent its appropriation under the free gravel road act, on the ground that the gravel in controversy was designed to be used in the construction of a gravel road located but not contracted for, being a different gravel road from the one for which the appropriation was about to be made, and that no other gravel was as convenient for use in the construction of the proposed road, and that irreparable damage would result to the plaintiff and general public if the appropriation should be made. These matters might be proper to be inquired into on the assessment of damages, as provided for in said act, but do not afford any basis for an injunction.</p> <p>Same. — When will not Die. — Adequate Remedy at Law. — Where a party has a just and adequate remedy at law the extraordinary remedy of injunction will not lie. In the present instance adequate relief is afforded under section 896, B. S. 1881, providing for the assessment of damages where an appropriation is made. No limitation is put upon the questions to be tried in such a proceeding, and an appeal may be taken to the circuit court.</p>

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

<p>Contract. — Parol Evidence to Vary. — How Far Admissible. — The actual consideration of a written contract may be shown by parol evidence, but where the acts that a party agrees to perform are specifically set forth, it can not be shown by parol evidence that he agreed to do other things. Where there is neither fraud nor mistake the parties can not add a stipulation to a written contract complete in all its parts.</p> <p>Same. — Express Warranty.- — Where there is a written instrument embodying the terms of the contract between buyer and seller, an express warranty can not be imported into the contract by parol evidence.</p> <p>Sale.— Written Contract. — Warranty. — -A written proposal for a sale of flour machinery, which became by acceptance the contract between the parties, contained the following statement: “ We will furnish the following machinery for a one-hundred-barrel mill (of twenty-four hours) set up in your mill building.”</p> <p>Held, it did not constitute a warranty that the machinery would manufacture any particular grade of flour.</p> <p>Same. — For Special Purpose. — Implied Warranty. — Extent of. — A manufacturer of machinery, who sells it to a person whom he knows buys it for a special purpose, and with the intention of putting it to a particular use, does, as a general rule and in the absence of an express warranty, impliedly warrant that the machinery is reasonably fit for that purpose, and reasonably suited to that use. The implied warranty does not extend beyond that limit.</p> <p>Same. — Representations as to the Future. — How Construed. — The representations of the sellers of machinery as to what the machinery would do in the future must be deemed to be expressions of opinion, and not fraudulent in their nature, unless facts are averred which give them a different effect.</p> <p>Same. — Pleading.—Answer.—Averment of Fraud. — Where an answer charges that the plaintiffs, who were the sellers of the machinery, were experts in flour-mill machinery, and made certain representations as to what the machinery would do in the future, it must, in order to charge fraud upon them, show that they knew, or had reason to believe, that the statements as to what the machinery would accomplish were false and fraudulent.</p> <p>Pleading. — Fraud.—How Pleaded. — One who charges fraud must plead all the facts constituting the fraud, for, as the presumption is in favor of fair dealing, he can secure nothing by intendment.</p> <p>Mabbied Woman. — May Become Partner. — Under the act of 1881 a married woman may become a partner in a business.</p>

<p>Municipal Cobpobation. — Assessments.—Collateral Attach. — Presumption.— In a collateral attack upon the right of the city to enforce its assessments, every presumption will be taken in favor of the action of the city and its officers, and unless the complaint discloses a state of facts which show clearly that the assessments are void, the right to enforce their collection will be presumed.</p> <p>Same. — Ten Per Cent. Limit. — Assessments Void only as to Excess. — Assessments for the construction of sewers, drains and cisterns which exceed ten per cent, of the assessed value of the property appearing upon the tax duplicate, prohibited by the proviso of section 3106, B. S. 1881, relating to their construction, are void only as to the excess; and plaintiffs seeking to annul the assessments can not complain in a collateral proceeding until they have paid, or offered to pay, all except the excess.</p> <p>Same. — Section 3106, R. S. 1881. — Specification 43 Unmodified. — Section 753, Elliott’s Supp., relating to street improvements and the collection of assessments therefor, neither limits nor widens in any way the operation of specification 43, section 3106, relating to the construction of sewers, drains and cisterns.</p> <p>Same.- — •Improvement Ordinances. — Publication.—Property-Holders Chargeable with Notice. — The statute for the incorporation of cities makes provision for the publication of only such ordinances as are penal in fheir character. It is the duty of residents of the city to take notice of the acts and proceedings of the common ^council relating to public matters, and property-holders knowing that improvements are being made must inform themselves as to the authority by which it is done.</p> <p>Same.— Contractors. — Payment of by City. — The ordinances having provided how the assessments should be made, and the proportion to be paid by the property-holders and by the city, declaring the assessments liens upon the property, and providing the mode of their collection, it was proper for the city to pay the contractors and levy the assessments in instalments, thereby lessening the burden of the property-holders.</p> <p>Same. — Precepts.—May Issue in City’s Name. — In such a case, although the ordinances did not provide in whose name the precepts should issue, the payment by the city not discharging the assessments as against the property-holders, the money being still due the city, the assessments may be made for the benefit of the city and precepts issued in its name.</p> <p>Same. — Assessment of Property. — How Shall be Made. — That the property was not assessed as provided for in section 3163, E. S. 1881, is immaterial, as the section under which the improvement was made (3106, E. S. 1881) provides that the'estimated cost and assessment shall be made upon the property benefited thereby in such equitable manner as the common council may deem just.</p> <p>Same. — Benefits.—Appointment of Committee to Ascertain. — A resolution in accordance with the provisions of the ordinances and with the statute, by which a committee is appointed to ascertain the benefits to the different pieces of property, is unobjectionable. ,</p>

<p>County Glebe. — Bond.—Breach of. — Sufficiency of Complaint. — The official bond of a county clerk provided, among other things, that he should faithfully discharge the duties of said office of clerk of the court of said county, and should' pay over to the person or persons entitled to the same all money that might come into his hands as such. A complaint for damages by reason of the breach of said bond states a good cause of action where it alleges that trust-money was paid into the hands of said clerk, who was required by the order of the circuit court to keep and hold said money in trust, subject to the further order of the court; but that in disregard of such order the clerk lavishly spent and wasted said money, and has resigned his office and fled to parts unknown, and is a fugitive from justice, leaving no money in the office of the clerk of said circuit court and of said county, and leaving no money subject to the order of said circuit court.</p> <p>Same. — Trust Funds. — Agreement in Relation to. — Order of Court. — ClerRs Liability. — Where the circuit court made an order that certain money paid into the hands of the clerk of said court should be kept and held by him in trust, subject to the further order of the court, the administratrix of the estate to which said money belonged, and said clerk, could not make any agreement changing the effect of the order, and relieving the clerk from liability under it.</p> <p>Same. — Release of Surely. — County Commissioners. — The board of county commissioners are only empowered to accept the original bonds of county clerks, and the other officers named in an act of the General Assembly, passed and approved Dec. 18th, 1851, and said board have no authority to accept new bonds whereby sureties on the original bonds are released. The only way in which a surety on the official bond of a county clerk can obtain his release is by following strictly the mode prescribed for securing such release by an act of the General Assembly, approved May 31, 1852.</p>

<p>Ratdkoad. — Injury to Employee. — Authority of Conductor to Employ Swrgeon. —Additional Surgeons. — A conductor has authority, when one of the brakemen on his train is injured, to employ a competent surgeon to attend the injured man, and the railroad company will be bound thereby. He has no authority, however, to employ additional surgeons, and if he does so, the railroad company can not be made to pay for their services.</p> <p>Same. — Employment of Surgical Aid by Brakeman. — Batification by Conductor. —It is immaterial whether the surgeon who first attended the injured man was called by a brakeman or by the conductor in person; for if he was called by the direction, express or implied, of the conductor, or if the conductor confirmed what had been done, he could not subsequently employ another surgeon.</p> <p>Same. — Principal and Agent. — Limit of Conductor’s Authority. — Second Surgeon Chargeable with Knowledge of. — The surgeon who came last was bound to know that when the agent, who possessed limited.special authority, had procured the services of a competent surgeon, his authority was exhausted, and if, with this knowledge, he continued to give the injured man attention, he could not compel the agentVprincipal to compensate him for such services.</p>

<p>Intoxicating Liquor. — Sale without License, — Premises.—Indictment.—Insufficiency of. — An indictment under section 5320, R. S. 1881, charging a defendant with selling intoxicating liquors without a license, and suffering it “ to be drank in and about the house where sold,” but without averring that such house was the house of the seller, is insufficient.</p>

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

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

<p>Constitutional Law.— Wages. — Money Payments.— Waiver of by Antecedent Contract.— Violation of Statute. — In an action by the plaintiff for the val ue of services rendered in the coal mine of the defendants, the answer! admitting the employment and services rendered, averred their performance under a contract antecedent to the employment, whereby the plaintiff expressly waived his right to demand and receive his wages and pay for mining coal, every two weeks, in lawful money of the United States, as provided by statute, and also averred a sale and delivery to the plaintiff in accordance with the waiver, of goods, wares, and merchandise in payment of his demand.</p> <p>Held, that the contract is void in so far as it assumes to waive, by an antecedent agreement, the right to receive wages in lawful money of the United States, being in violation of the statute, sections 1599 and 1610, Elliott’s Supplement.</p> <p>Held, also, that the answer is a plea of payment, and is bad, as it does not state facts in bar of the action.</p> <p>Same. — Lawful Money. — Protection of. — Statute.—Constitutionality.—The statute in question is constitutional. The Legislature has such authority over the right to contract as to prohibit contracts from being made in advance waiving the right to payment in the lawful medium of payment. This it may do in order to protect and maintain the lawful money of the Nation!</p> <p>Pleading. — Plea of Accord and Satisfaction. — Must aver Pelivery and Acceptance. — A plea of accord and satisfaction is bad which fails to aver a delivery and acceptance of the goods in satisfaction of the debt.</p>

<p>Husband And Wine. — Action for Damages. — Loss of Wife’s Services m Business. — A husband in an action for damages sustained by him on account of injuries alleged to have been received by his wife, is entitled to recover — proper averments being made in the complaint — for the loss of the services of his wife as the manager of a business'which the husband was carrying on.</p> <p>Same. — Section SISO, B. S. 1881, Construed. — Section 5130, R. S. 1881, in no way changes the relation between husband and wife. It makes the wife the sole owner of her earnings when she perforins services for persons other than her husband, and of profits made from any trade or business carried on by her. It has no application to a case like the ease at bar, where the wife is performing services for her husband.</p> <p>Same.— Wife’s Services.— Value of. — •How Estimated. — A husband is entitled to recover for the damages sustained on account of the loss of the services of his wife, and the value of her services, and loss sustained by reason of her inability to perform them, must necessarily depend on the character and value of the services which she is capable to perform and is accustomed to perform for her husband</p>

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

<p>Stjpbeme Cotjbt. — Weight of Evidence. — Where there is evidence to support the finding the Supreme Court will not weigh the evidence to determine whether in its opinion the trial court rendered a proper conclusion supported by what the Supreme Court might conclude was a preponderance of the evidence.</p> <p>Pleading.— Written Instrument.— Cause of Action. — Practice. — Where a plaintiff sues on a written contract, he must, if he recovers at all, recover on the cause of action sued upon.</p>

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

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

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

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

<p>Conteact. — Decedent’s Estate. — Statute of Frauds. — Agreement not to be Performed within One Year. — Performance on One Side. — Effect of. — In a suit by A. against his daughter and her husband upon two promissory notes, each for $2,000, it was agreed by A., in compromise, that if the defendants would execute to him promissory notes equal in amount to the accrued interest on his claim when his granddaughter should have arrived at the age of twenty-one, he would assign to his granddaughter the notes in dispute, and, upon her becoming of age, pay her $2,000, making in all a sum equal to that given his grandsons. The agreement was fully carried out except as to the payment of the $2,-000 by A.</p> <p>Meld, the defendants having fully performed their part of the contract within the year, that A.’s promise, though parol, is capable of enforcement against his estate, and is without the statute of frauds.</p> <p>Same. — Consideration.—-The defendants having released their defence to the notes, and agreed to pay the same with interest to A.’s granddaughter, and also having paid the costs of litigation, and executed with security notes for the accrued interest, which they afterwards paid, a sufficient consideration for A.’s promise is shown.</p> <p>Same. — Attorney at Compromise. — Competency of as Witness. — -An attorney of the defendants and A.’s granddaughter present at the compromise to advise with his clients in reference to the negotiations resulting in the settlement, attorneys of both sides being present, is a competent witness, the prohibition of section 500, E. S. 1881, having no application in such a case.</p>

<p>Libel. —Imputation of Crime. — Teacher.—A newspaper publication, false and made for tbe purpose of scandalizing the plaintiff, as admitted by the demurrer to the complaint, under the heading, “ A School Child Killed in Pike County by a Teacher,” stated that a little girl, immediately after being punished by her teacher, a young woman, dropped to the floor, and, with a stream of blood running from her mouth, died ; that the teacher was lodged in jail, and that threats of lynching her were made.</p> <p>Held, that the matter was libellous perse.</p> <p>Same. — Libellous Publication. — Identification of Plaintiff. — The plaintiff haying sued as “ Louey Kelley,” although spoken of in the publication as “ Miss Louise Kelley,” alleging in the complaint that the libellous publication was concerning her, and that the author of the alleged libellous matter meant to charge her with murdering the child, is sufficiently identified as the person to whom reference was made.</p>

<p>Taxes. — School Fund Mortgage. — Foreclosure.—Divesting Tax Diem. — Where a mortgage to secure a school fund loan is assumed by the purchasers of the real estate, the mortgagors to whom the loan was made do not, by a subsequent purchase of the real estate sold by the auditor to satisfy the mortgage, take the property divested of liens for taxes asserted by the city in which the property is situated.</p> <p>Same. — Double Assessment. — Belief from.— When Gan be Had. — •Tender.—In such case the mortgagors can not have relief from a double assessment of taxes until they make a tender of the taxes legally assessed.</p>

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

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

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

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

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

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

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

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

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

<p>Pboceedings Supplementaby to Execution. — Evidence. — Testimony to be Elicited. — Informing Court as to. — Buie.—The rule in the trial of an ordinary civil or criminal prosecution that the party calling the witness must, upon objection, inform the court as to the testimony he expects to elicit, is not applicable in proceedings supplementary to execution where the object of the examination is to obtain information supposed to be peculiarly within the knowledge of the party being examined and entirely unknown to the party making the examination.</p> <p>Same. — Examinations.—Laiitude Allowed. — In such examinations the court should allow great liberality, and if the questions propounded are at all pertinent the court should require that they be answered.</p> <p>Same. — Assessment List. — Admissibility.—In such a proceeding assessment lists are competent evidence, following Towns v. Smith, 115 Ind. 480.</p>

<p>Judgment.— By Default. — B,elief from.— How Obtained. — Where a final judgment hy default has been taken, the only remedy of a defendant who failed to appear before final judgment was taken, is to ask to be relieved from the judgment on account of mistake, surprise, etc.; to institute proceedings to review the judgment; or, in a proper case, to institute direct proceedings to set aside the judgment for fraud or deceit.</p> <p>Same. — Default.—Motion for New Trial. — An ordinary motion for a new trial is unavailing to set aside a final judgment rendered hy default.</p>

<p>Guaranty. — Original Undertaking. — What Constitutes. — When an instrument of writing resolves itself into a promise or undertaking on the part of the person executing it to do a particular thing which another is hound to do, in the event such other person does not perform the act himself, it is an original undertaking, and not a strict or collateral guaranty.</p> <p>Same. — Collateral Guaranty. — Absolute Promise to Pay. — The following instrument of writing: “Columbus, Ind., July 30th, 1885. Mr. Hading, Esq., Hope, Indiana. Dear Sir — I have made a contract with Stephen A. Douglass for a lot of staves, to be delivered at Hope, Indiana. Any white or burr oak timber you may sell him I will stand good for, or, in other words, will guarantee the pay for it. Yours truly, J. A. Mc-Gregor,” is not a strict or collateral guaranty, but' is a direct, absolute and original promise to pay the person to whom it is addressed for any white or burr oak timber he might sell to the person named therein.</p> <p>Same. — Notice of Acceptance and Default. — Delivery of Instrument. — Principal and Agent. — The above contract being an original undertaking in the nature of a surety, the party signing it was not entitled to notice either of its acceptance or of the failure of the person named therein to pay. Its acceptance and the performance of the conditions upon which it rests is all that is necessary to make the contract complete and enforceable. By delivering the instrument to Douglass the appellee made him his agent to deliver it to the appellant.</p>

<p>Former Adjudication. — Bill to Review Judgment. — The rule upon the subject of former adjudication does not apply to a direct attack upon a judgment, a bill to review a judgment being such an attack.</p> <p>Mortgage. — Foreclosure.—Bill to Review Decree. — Registry Law.— Unrecorded Deed. — Mortgagees.—Where third persons enter into the possession of land under a deed for the benefit of the grantees therein named, the deed being unrecorded, and hold possession continuously for more than forty years, asserting their absolute ownership, and treating the land as their own, and at the end of that period execute a mortgage founded on a valuable consideration and accepted in good faith, the mortgagees, having neither actual notice of the deed nor that imparted by record, can not be deprived of their rights under their mortgage by one of the grantees, an infant, of two years at the time of the conveyance to the mortgagors, who claims under the unrecorded deed executed forty years before, and the judgment of foreclosure will not be reviewed upon a complaint by such grantee grounded upon the discovery of new matter, alleging the facts as above, and the existence of the deed not known till after the judgment of foreclosure.</p> <p>Same. — Mortgagees.—Bona Fide Purchasers.- — Mortgagees who acquire an interest in the land, in good faith and for a valuable consideration, occupy substantially the same position with reference to an unrecorded deed as a bona fide purchaser.</p> <p>Real Estate. — Adverse Possession. — dolor of Title. — It is not necessary in order to constitute an adverse possession that there should be color of title; it is enough if there be an assertion of ownership and unbroken possession for the requisite length of time.</p>

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

<p>Former Adjudication. — Married Woman. — Suretyship.—Res Adjudicata.— A suit was brought in Illinois, in a court having jurisdiction of the subject-matter and the person, to recover judgment on certain promissory notes executed by a husband and wife. The wife appeared to the action and pleaded suretyship. Judgment was rendered against her, notwithstanding the plea. The plaintiff afterwards instituted a suit in Indiana to foreclose a mortgage executed by the husband and wife to secure the payment of the notes, on which judgment had been before taken.</p> <p>.Held, that in the subsequent action the defence of suretyship and coverture could not be pleaded; that said questions were res adjudicata.</p> <p>Same. — Applies to Whatever Might have Been Pleaded. — It Would make no difference whether the defence of suretyship was in fact pleaded as a defence to the suit on the notes or not. The wife was in court and pleaded to the complaint. It was her duty to plead all the defence she had to the notes. If she failed to plead her defence of suretyship, and personal judgment was rendered against her, she would be as completely barred from raising the question thereafter as if she had pleaded it and it had been adjudicated against her.</p> <p>Same. — Form of the Action Immaterial. — It is not necessary that the form of the action shall be the same in both cases in order for the former to be a bar to the latter. It is sufficient if the question in controversy has been once litigated between the same parties.</p> <p>Same. — Record of Former Trial. — Conclusiveness of. — The record of the. former case (the transcript having been properly certified in accordance with the provisions of section 472, R. S. 1881) was properly admitted in evidence. It showed that the question of suretyship had been raised, tried and decided in favor of the plaintiff, and was conclusive evidence of it.</p> <p>Same — Parol Evidence. — Record Unaffected Thereby. — Where a witness is permitted to testify as to the evidence introduced, and the issues tried in the former trial, no injury can result, even if the evidence is improperly admitted, as the record of the former trial is conclusive as to those questions, and can not be affected in any way by parol evidence.</p> <p>Practice. — Demurrer.—Improper Ruling Upon.— When Fot Available Error.— Where demurrers are filed respectively by the appellee and appellant to a paragraph of answer, and to the reply thereto, and the rulings of the court are assigned as error.and cross-error, there is no available er- . ror if the paragraph of answer was insufficient, even if the demurrer was improperly overruled to the reply. f</p>

<p>Intoxicating Liquor.— Unlawful Sale. — Defence of Agency.— Evidence.— Cross-Examination. — In a prosecution for the unlawful sale of intoxicating liquor, the defendant having introduced evidence tending to show that he made the sale for one T., who had a license, as his agent or bartender, the State had the right to meet the testimony either by a cross-examination of the defendant’s witnesses or hy calling witnesses after the defendant had rested his case.</p> <p>Same. — Agency.—Evidence to Disprove. — The State had the right, as throwing light upon the question whether the defendant was carrying on the business as the agent of T. or for himself, to show by its witness, a station agent, that goods were shipped occasionally in the name of the defendant, some of which came subsequently to the date of the sale; and the fact that some of the articles were shipped after the alleged sale, did not render the testimony incompetent.</p> <p>Same.' — Prosecuting Attorney. — Reported Cases. — Right to Read from. — The prosecuting attorney has the right in argument to the jury to read from law books, and from the Indiana Reports, and to state his own conclusions as to what was proven by the evidence in the light of the decided cases so read.</p>

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

<p>Cbiminal Law. — Larceny of Money. — Description.—Indictment.—Sufficiency of. — Evidence.—An indictment for the crime of larceny, in proper form, which charges that the accused, of a county named, “ did then and there feloniously steal, take, and carry away five dollars in money, then and there being of the value of five dollars, and of the goods and chattels of A. B., contrary,” etc., is, under section 1750, R. S. 1881, a sufficient indictment; and under such indictment any of the different species declared to be money in the section named may be proven.</p>

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

<p>Insurance. — Action on Policy. — ComploAnt.—Sufficiency of. — In an action on a policy of insurance containing a condition that if the buildings insured should become vacant or unoccupied, or be used for any other purpose than that mentioned in the application without consent endorsed on the policy, the policy should be null and void, a complaint is sufficient which avers that the plaintiff “has, upon bis part, performed each and every act which, by the terms of said policy, he was required to do.”</p> <p>Same. — Application.—Statements in.— When Deemed Representations. — Where an agent of an insurance company who takes the application and writes out the answers contained therein, with full knowledge of the facts, and, relying upon his own knowledge, writes out the answers to the same, knowing that the applicant has no accurate knowledge in regard to the facts inquired about, and is unable to give accurate information in regard to the same, the statements made in the application must be taken to be representations, and not a warranty.</p>

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

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

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

<p>Decedents’ Estates. — Administrator’s Sale to Pay Debts. — Heir’s Share of Proceeds. — Set-Off of Against Debt Due Estate. — Creditors.—A debt due the estate of an intestate from an heir may be retained out of his distributive share of the surplus proceeds of real estate, which has been regularly sold in order to make assets to pay debts, as against one who took a mortgage on the undivided interest in the land sold, the mortgage having been taken pending the settlement of the estate, with knowledge of the indebtedness of the heir. Olds, J., and Berkshire, J., dissent. Ball v. Oreen, 90 Ind. 75, modified.</p> <p>Same. — Eight of Heirs. — Lien-Holders with Notice. — The right of heirs to participate equally in the estate of their ancestor is superior to that of a lien-holder with notice.</p>

<p>Pleading. — Complaint.—Amendment to. — How May be Made. — Where, after the filing of a complaint, the same was amended by writing the amendment below the signatures of counsel, as originally subscribed to the complaint, and the complaint was then resubscribed under the amendment, the amendment was properly made.</p> <p>Practice. — Joint Action. — Separate Recovery. — If two or more'persons bring a joint action, alleging a joint cause of action, and it turns out upon the trial that upon the facts alleged in the complaint, some, but not all, of the plaintiffs are entitled to recover, the court or jury, as the case may be, under section 568, E. S. 1881, should so find, and the judgment should be rendered accordingly. The same rule applies in the case of two or more defendants.</p> <p>Same. — Husband and Wife. — Special Verdict. — -Omission in. — How Remedied. —Where a suit is brought by a husband and wife, and a special verdict is returned in favor of the wife, but is silent as to the husband, the party against whom the verdict is returned can not complain of such omission, if he does not request, at the proper time, that the verdict be made to speak as to the husband.</p> <p>Same. — Retraxit.—Effect of. — Motion to Reject. — Where a plaintiff to an action filed a retraxit, and the court overruled a motion to reject the retraxit, the error in so ruling, if any was committed, was a harmless error, as the party making the motion recovered judgment against the party filing the retraxit. There was no error, however, in overruling said motion. It clearly entitled the defendant to judgment against the party filing the retraxit, if there was any doubt about it before, and that was the most that he could claim.</p> <p>Same. — Filing of Retraxit. — Effect as to Non-Joining Party. — Where one plaintiff files a retraxit, and a motion is made to reject the same, the motion and the ruling thereon can not prejudice a plaintiff who has not joined in the retraxit.</p>

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

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

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