Volume 122 — Indiana Reports

<p>Landlord and Tenant. — Holding Over. — Suit for Possession. — Justice of Peace. — Jurisdiction.—The jurisdiction of justices of the peace in suits before them under section 5225, R. S. 1881, against tenants holding over to recover possession of real estate, is co-extensive, territorially with the county; and complaint may be made before any justice of the peace of the county in which the lands are situate.</p> <p>Same. — Term.—Gontingent Limitation. — Notice.—An agreement that a tenancy shall expire on the breaking down of a grist-mill leased, creates a contingent limitation of the term, and upon the happening of the contingency, the tenant is bound to take notice of it, and surrender the possession, a notice to quit being unnecessary.</p>

<p>Drainage. — Statute Relating to. — Not Applicable to Fresh- Water Lakes. — The statutes of the State relating to drainage, apply and were only intended to apply to wet and marshy lands, swamps, ponds and the like, and do not provide a system of drainage for the fresh-water lakes of the State. Same. — Railroad.—Right of Way. — Assessment of — In the establishment of a ditch, it is expressly provided by section 1175, Elliott’s Supp., that the easement or right of way of a railroad company may be assessed.</p> <p>Same. — Proceeding to Establish a Ditch. — Special Proceeding. — Trial by Jury. —Mode of Trial. — Legislature may Prescribe. — A proceeding to establish a ditch is a special proceeding, purely of statutory origin. In such a case the Legislature may prescribe the mode of trial, and extend or withhold the right of trial by jury at its pleasure. The constitutional provision in reference to the right of trial by jury, is only applicable to that class of common-law actions wherein the right existed when the Constitution was adopted.</p> <p>Same. — Practice.—Motion for a New Trial.- — ■ When Necessary. — When a motion for a new trial is required in an ordinary civil action to present a question to the Supreme Court, it is equally necessary that such a motion be filed in a proceeding to establish a ditch, for the presentation of a similar question.</p>

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

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

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

<p>Drainage. — Ditch. — Bestoralion to Original Dimensions. — County Surveyor. — Discretionary Power. — Where a county surveyor, upon being served by a land-owner with the statutory notice (Section 1193, Elliott’s Supp.) requiring him to repair a drain by cleaning it out to its full dimensions as required by the original specifications, exercises the discretion committed to him and determines that it is his duty to clean it out, his judgment is conclusive as to the necessity of making the repairs ; and no ground for judicial interference is presented, unless the complaint shows that the surveyor is proposing to do something beyond the restoration of the drain to its original dimensions.</p>

<p>City. — Obstruction of Street. — Negligence.—Liability.—Where a city authorizes a track to be laid in a plank-covered street for the use of a street-railway company, the iron rails projecting four inches above the planked surface, and permits it to remain in that condition to the injury of persons using the street for travel, it is liable for its own negligence in failing to exercise the ordinary care and skill required of a municipal corporation in making and keeping its streets in a reasonably safe condition for travel by persons employing ordinary care.</p> <p>Same. — Permitting Obstruction of Street. — Negligence.—Question of Fact for Jury. —Whether an obstruction or defect in a street is such as it is negligence on the part of the municipality to suffer to exist is generally a question of fact for the jury.</p> <p>Same. — Contributory Negligence.-^-The concurring fault of the driver of the vehicle in which the plaintiff is riding will not defeat his action.</p>

<p>Cbimihau Law. — Libel.—Truth of Publication. — Good, Faith. — The defendants in a criminal prosecution for libel are not guilty of the crime charged where the words published, whether published in good faith or not, are true.</p> <p>Same. — Reasonable Doubt,— Verdict. — Where, from all the evidence, a reasonable doubt arises in the minds of the jury as to the truth of the publication, the accused is entitled to the benefit of the doubt, and to a verdict of not guilty.</p> <p>Same.— Imputation of Crime. — Acquitted.—JJoiv Justified. — Instruction.—An instruction asked is erroneous which is to the effect that in so far as the publication imputed to the prosecuting witness the commission of a crime, to justify an acquittal it was necessary for the jury to find that the defendants had proved the truth of the words beyond a reasonable doubt.</p> <p>Same. — Prosecuting Witness. — Pad Character of. — Effect.—Instruction.—Evidence tending to show that the prosecuting witness is a person of bad character is competent as bearing upon his credibility as a witness, and in mitigation of punishment, but is not competent as tending to show that the accused is innocent of the charge of libel; and it is error for the court to refuse to give an instruction asked to that effect.</p> <p>Same. — Publication to be Considered in Entirety. — Instruction as to Evidence.— A written instrument, or publication, should be considered as a whole, and from the entire instrument, or publication, the meaning, or legal effect, must be determined ; and it is not error to charge the jury to consider the scope and meaning of the editorial as a whole, as well as all other facts and circumstances in evidence.</p>

<p>Bridge. — Keeping in Repair. — County Commissioners. — Culvert.— Statute.— A structure, or culvert, over a ravine, made by filling in the depression with earth and gravel, there being in the center under the highway an archway of stone masonry covered by a parapet, which was erected for the purpose merely of draining surface water off the public highway is not a bridge within the meaning of the statute, which requires the board of commissioners of each county to cause all the bridges therein to be kept in repair.</p> <p>Same. — Term “ Bridge ” Defined. — Common Law. — The term “ bridge,”' in its common-law meaning, the sense employed by the statute, denotes a structure erected over a river, creek, pond, lake, or stream of water flowing in a channel, between banks more or less defined, although such channel may be occasionally dry, in order to facilitate public passage over the same.</p>

<p>Pleading. — Physician.—Professional Semces. — Action to Becover for. — Complaint. — Failure to Aver Breach of Contract — A paragraph of complaint by a physician to recover for professional services and medicines furnished, which alleges a promise by the defendant to pay for the. services and medicines, but fails to aver a breach of the promise, is bad, and subject to a demurrer.</p> <p>Same. — Complaint Fntitling Plaintiff to Part Belief.— Demurrer. — Such a complaint, containing the other necessary averments, is not bad for a failure to allege that the medicines were furnished, if it shows that the services were rendered; for a complaint entitling a plaintiff to part of the relief sought, is good .against a demurrer.</p> <p>Same. — Services Bendered. — Direct Averment. — Absence of. — A paragraph of complaint, in such action, which avers that “ the services rendered and medicines furnished were of the value of three hundred dollars and charged to the defendant,” is bad because it does not aver directly that any services were rendered or medicines furnished.</p>

<p>Appeal. — Filing Transcript. — Subsequent Notification of Prosecuting Attorney. —Where a transcript is filed in the office of the clerk of the Supreme Court, in a criminal case, after which the prosecuting attorney is notified of the appeal, all being done within ninety days, there is a substantial compliance with the statute regulating appeals.</p> <p>Criminal Law. — Trespass.— Unlawful Fhtry on Land. — Possession of Owner. —Need not be Averred. — It is not necessary, in a criminal prosecution under section 1941, R. S. 1881, making it unlawful to enter upon land after being forbidden to do so by the owner, to aver that the owner, who forbade the unlawful entry upon the land, was in. actual possession. As ' against one having no right to enter, it is enough that either the owner, occupant, agent, servant, or either, forbids the entry.</p> <p>Same.— Verdict.— Words “Fine ” and “ Punishment.”— Use of Synonymously.— Motion for Venire de Novo. — A verdict that, “ We, the jury, find the defendant guilty and assess her punishment at the sum of five dollars,” is not bad for failing to use the word fine instead of punishment, and motion for a venire de novo will not be sustained. The defendant was not prejudiced by the jury’s use of the words as synonymous.</p>

<p>Pleading. — Recovery of Judgment. — Plaintiff must Proceed on Definite Theory. — The plaintiff to an action, before he can recover judgment, must proceed upon some definite theory, which the evidence he introduces must support.</p> <p>Mortgage. — Certificate of Purchase.- — Assignment of. — Assignee’s Grantee.— Purchaser with Notice. — Equity of Redemption. — A sheriff’s certificate of purchase of real estate was assigned by the holder to secure loans of money, the assignments being endorsed on the certificate. Afterwards it was agreed, in consideration of the payment of the interest on the loans, that the assignor should retain the use of the money for three years, and that if the principal and interest were paid the assignee should deed to the assignor his interest in the real estate by virtue of the certificate, the assignee in whose control the real estate was to be to rent it and apply the surplus proceeds to the payment of the assignor’s debt. The assignee having procured a sheriff’s deed, as contemplated, the assignments on the surrendered certificate being endorsed thereon, subsequently made a conveyance to a third person, to whom also, shortly after, the assignor'executed a quitclaim deed.</p> <p>Held, that the assignee’s grantee was a purchaser with notice, and bound to know the contents of the sheriff’s deed, a link in her chain of title, and to know that the relation of the assignor and assignee was that of mortgagor and mortgagee.</p> <p>Same. — Assignors Theory of Action. — Damages.—The assignor, still holding her equity of redemption unimpaired, may not maintain an action on the theory that her equity of redemption is lost against the assignee to recover, as damages, the value of the real estate less the amount due him.</p> <p>Same. — Quitclaim Deed. — Affirmance of Conveyance. — The conveyance by the assignor, by quitclaim deed, to the assignee’s grantee, was an affirmance by the assignor of the conveyance by the assignee, and in an action to compel the assignee to account for the consideration received from his grantee, together with the rents and profits received by him, if found to be in excess of the debt secured, and all proper outlays which he had made on account of the property, including taxes paid, he is chargeable with the difference.</p>

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

<p>Attorney General. — Contracts.—Authority to Make. — A contract made with the attorney general is void, unless he is expressly or impliedly authorized by statute to make it.</p> <p>Same. — Officers with Statutory Powers. — Persons Pealing with. — Notice.—All persons dealing with officers exercising statutory powers, and whose authority is limited by statute, are charged with notice of the scope of such officers’ authority.</p> <p>Same. — Real Estate. — Action to Recover. — Employment of Attorney. — The attorney general has no authority to contract with an attorney for his services in the prosecution of actions in behalf of the State to recover real estate belonging to it; and of this the attorney is bound to take notice.</p> <p>Same. — State Lands. — Attorney’s Services in Recovery of. — Legislative Adjustment of Claim. — The Legislature, by an act passed March 9,1889,having authorized the sale of the lands, and adjusted the claim for such services, it took jurisdiction of the matter and withdrew from the courts any jurisdiction to adjudicate upon the right to recover, or the amount to be recovered.</p> <p>Court of Claims. — Statute.—Suit Against State,— When may he Prosecuted.— Adjustment hy Legislature. — The law authorizing the State to be sued only authorizes suits to be brought in cases where there is a liability on the part of the State to the claimant, which has not been adjusted by the Legislature.</p>

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

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

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

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

<p>Deed. — Execution of. — -Finding.—-Delivery.—The finding that a deed was executed includes, as a necessary and essential incident, the delivery of the instrument; for there can not be an execution of a deed without an actual or constructive delivery.</p> <p>Same. — Retention by Grantor of Recorded Deed. — Delivery and Acceptance. — A wife, for the purpose of putting land beyond the reach of her husband, signed and acknowledged a deed in which the land was conveyed to her children, all of whom but one were infants. Three of the grantees, including the adult, had knowledge of, and assented to, the conveyance. After the deed was signed and acknowledged the grantor caused it to be recorded and then took possession of it, intending to retain the deed and the land in her possession until her death.</p> <p>Held, that these facts constituted a prima facie delivery and acceptance of the deed.</p> <p>Same.— Voluntary Conveyance by Parent. — Placing'of on Record.- — Presumption of Intention. — The making of a voluntary conveyance, absolute in form, and beneficial in effect, by a father or mother, to one who is not swi juris, and placing it upon record, is deemed to evince an unmistakable intention on the part of the grantor to give the deed effect, and pass the title to the grantee, the assent of the latter, if nothing further appears, being presumed from the beneficial character of the transaction.</p>

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

<p>"Verdict.— Weight of Evidence.- — -Motion for New Trial. — Supreme Court.— Reversal of Judgment. — "Where there is some evidence tending to support the verdict, or the finding of the court, the judgment will not be reversed on account of the overruling of a motion for a new trial, assigning as cause that the verdict or finding is not supported by the evidence.</p> <p>Contract. — For Care and Support. — Ereach.—Action for Damages by Administrator.— Verdict. — Evidence.—In an action by an administrator to recover damages for the breach of a contract for the care and support of his decedent, the evidence showed that a written contract had been executed between the deceased and the defendant whereby the defendant, in consideration of $500 and the household goods owned by the deceased agreed to take care of him and support him during his lifetime, and after his death to give him(deeent burial. Theevidence tended to show a discharge of the obligation to pay the $500 by a delivery by the decedent to the wife of the defendant of two promissory notes, amounting to $500. The evidence on behalf of the defendants tended to prove a rescinding of the contract by mutual agreement, the deceased making a new contract for his support with the wife of the defendant, by which the two notes were assigned to her, the contract being left in the hands of a third person for safe-keeping and uncalled for at the beginning of this suit. There was evidence tending to prove that the wife of the defendant refused to keep the deceased longer than three years, when he was removed to the house of another.</p> <p>Held, that a verdict for the plaintiff was not wholly unsupported, by the evidence.</p> <p>Same. — Promissoe'y Holes. — Assignment.—Evidence.—The two notes assigned by the deceased and delivered to the wife of the defendant were admissible in evidence, the theory of the plaintiff being that the notes were assigned and accepted in discharge of the obligation to pay $500 in maintenance of the deceased.</p> <p>Same. — Evidence.—Conversation.—lies Gestae. — What was said by the wife of the defendant, in his absence, when the deceased finally left the house of the defendant, is admissible in evidence as a part of the res gestee, being explanatory of that act.</p> <p>Same. — Instruction to Jury. — The jury having been instructed that if the deceased had not paid the $500 stipulated for in the contract the plaintiff could not recover, an instruction to the jury to the effect that an endorsement of two notes for that amount to the defendant or to his wife, with the defendant’s knowledge and consent constituted payment, was not erroneous.</p> <p>Same. — Care and Support. — Expense.—Admissibility of Proof. — It was not error for the court to permit the plaintiff to prove what it was reasonably worth to keep the deceased until bis death, or to prove what it was worth to give him decent burial.</p>

<p>Instructions to Jury. — Copies of. — Contained in Motion for New Trial. — • Record. — Supreme Qourl. — Where copies of what purport to be the instructions are copied into the motion for a new trial, and these copies, as a part of that motion, are copied into the record, they will not be regarded as instructions given by the court.</p> <p>Evidence. — Dying Declarations.— Res Gestee. — Declarations in an antemortem statement which relate to the res gestee, made while the person is suffering from a mortal wound, without the hope of recovery, are admissible in evidence.</p> <p>Same. — Ante-Mortem Statement.— Objection to as Entirety. — Where such statement is objected to as an entirety the objection will fail if any part of . the statement is competent evidence.</p>

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

<p>Will. — Construction.—Testator’s Intention. — Description of Land. — Where a testator devises to his two daughters a tract of land described as the “ west half of the southwest quarter ” of a certain section, township and range, which he never owned, owning instead the west half of the northeast quarter of the above-mentioned section, township and range, the devisees will not be permitted to show the facts as stated as a basis for the ■ inference that the testator must have intended to dispose of the prop- \ erty actually owned by him, and that the description as found in the will was the result of inadvertence or mistake.</p> <p>SAME. — Elimination of Words and Phrases.— Court’s Ohancenj Powers. — The chancery powers of a court can not be invoked to reform a will by eliminating words or phrases and supplying others, so as to make the instrument conform to what may be supposed to have been the real intention of the testator.</p> <p>Same. — Residue of Real Estate. — Disposition of by 7/ill and Codicil. — Construction. — One of the clauses of a will directed that the residue of the testator’s real estate, not theretofore disposed of, should go to his two sons share aqd share alike, while the last clause (contained in a codicil) declared that all the residue of his estate, not therein specifically devised, should go to all his children share and share alike. The codicil referred to revoked certain devises and bequests, but made no disposition of real estate, except in the residuary clause.</p> <p>Held, that the codicil controls the disposition of the undisposed-of residue.</p> <p>Same. — Reduction of Devise to One. — Effect as to Others. — Where a given number of acres to be taken from a tract of land are devised by one clause of a will to A., and by another the remainder is devised to B. and C., the modification of the devise to A. by a codicil subsequently executed diminishing it, the devise to B. and C. being left unchanged, adds nothing to that to B. and C.</p>

<p>Intoxicating Liquor. — Sale to Habitual Drunkard. — Indictment.—Sufficiency. —An indictment under section 2093, E. S. 1881, for selling liquor to an habitual drunkard, charging a sale to a person in the habit of “ becoming intoxicated,” is sufficient, though the words of the statute are “ being intoxicated,” instead of “ becoming intoxicated.”</p> <p>Same. — Intoxication at Time of Sale. — Averment of. — Where an indictment avers that J. D. unlawfully gave away to one A. H. one gill of intoxicating liquor, he being a person in the habit of becoming intoxicated, a sale to a person in the habit of becoming intoxicated at the time of the sale is in effect charged.</p> <p>Same. — Instruction.—Refusal of. — An instruction asked, to the effect that if the person to whom the liquor was sold was not a person in the habit of being intoxicated at the time of the sale to him, the giving or selling to him of intoxicating liquor by the defendant would not make the defendant liable, is not improperly refused when the jury is instructed by . the court that “ to entitle the State to a conviction it must have proved beyond a reasonable doubt that at the time the notice in question 9 9 was served on the defendant 9 9 9 A. H. was a person in the habit of being intoxicated, and that at the time said intoxicating liquor was sold or given to him by the defendant 9 9 9 the said H. was in the habit of being intoxicated.”</p> <p>Same. — Notice to Diquor Seller.— Who May Give. — Indictment.—If an indictment for the sale of liquor to an habitual drunkard, charges that notice was given by a citizen of the township wherein such person in the habit of becoming intoxicated resides, it is sufficient to prove that such person was at the time of giving the notice a citizen of the township, and the fact that such person also resides within the ward of a city is immaterial.</p> <p>Jury. — Time of Swearing. — Informality as to.— Waiver. — Where, without objection, a defendant proceeds to trial, he thereby waives any informality in the manner or time of swearing the jury.</p> <p>Same.— Venire de Novo. — Where it appears by the record that the defendant was first arraigned and pleaded to the indictment, and afterwards the jury were impanelled and sworn, the record is conclusive, and a motion for a venire de novo was properly overruled.</p> <p>Venire de Noyo'. — Motion for. — Defects Presented. — By a motion for a venire de novo only such defects as are apparent on the face of the record are presented. Such motion can not be supported by extrinsic evidence, as by a verified motion.</p> <p>J uror. — Competency of. — Sale of Intoxicating Liquor. — Prejudice against.— Where a challenged juror answers that he has a prejudice against the sale of intoxicating liquors, and that he would think that a man engaged in such business would be of bad moral character; but that the fact that a witness was engaged in such business would not have any influence upon him in weighing the evidence of such witness or determining his credibility; that he has not formed or expressed any opinion in the case, and that he could give the defendant a fair and impartial trial upon the law and the evidence, he is competent.</p>

<p>Trust and Trustee. — Deed.—Contemporaneous Written Agreement.— When it Constitutes a Trust. — Heirs owned a piece of real estate as tenants in common, and two of tlie tenants in common conveyed tlieir interest in said real estate to the other tenant in common by a deed, absolute on its face, naming a money consideration, but contemporaneously with, and as a part of the transaction, the grantee signed and delivered to the grantors a written agreement which required of her certain duties in respect to the payment of the debts of the ancestor, and the making of repairs, and the ultimate disposition of the property, and the distribution of the proceeds, after reimbursing herself. .</p> <p>Held, that this constituted a perfectly executed' and explicitly declared trust, which a court of equity is bound to recognize and enforce.</p> <p>Held, also, that the recital in the deed and in the contemporaneous contract that the conveyance had been made for the consideration of $4,000 did not render inoperative the trust declared in the writing.</p> <p>Same. — Duty of Trustee to Sell Property. — Absence of Discretion. — A provision in the contemporaneous written agreement that the grantee “ may sell ” whenever she had an opportunity to do so, at a fair price, did not vest in her the absolute discretion to determine whether or not she would sell the property at all, or whether she would keep it for her own use and enjoyment. Her duty was to offer the property for sale within a reasonable time after the debts were paid, and to use all reasonable diligence to obtain the best price. \</p> <p>Same. — Naked Powers. — Power Coupled with a Trust. ■ -Distinction Between.— Mere naked powers are purely discretionary, the donee of such a power is not subject to the compulsory power of a court of chancery. Where, however, the power is coupled with a trust for the benefit of third parties, or in the execution of which third parties are interested, it becomes imperative, and its execution may be coerced.</p> <p>Same. — How the Trust May be Manifested. — It is not necessary that the deed, or instrument, in which the estate which is to be affected by the trust is granted, should also contain the declaration of the trust upon which the property is to be held. The trust may be manifested, or proved, by any writing signed by the party to be charged, or by the party who is entitled to declare the trust, provided the fiduciary relations are set forth in the writing with sufficient certainty.</p> <p>Conveyance. — Consideration.—Parol JSoidence to Show. — The consideration of a contract, or conveyance, is always open to extrinsic inquiry, and may be shown by parol evidence.</p>

<p>Drainage. — Petition.—Parties Defendant. — Persons who have no title of record need not, under the statute, be made defendants to a drainage petition, but if they have an interest in the land affected by the prpposed ditch, they may come in and defend.</p> <p>Same. — Parties Admitted on Application. — •Rights of. — Remonstrance.—Such persons admitted on application may attack the petition or remonstrate, their rights being substantially the same as those of the original parties except in so far as they are limited or qualified by law.</p> <p>Same. — Dimissal of Petition. — Land-Owners.—Where the statute provides that “ if two-thirds in number of the land-owners named as such in the petition resident in the county or counties where the lands affected are situated shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the cost of the petitioners,” it is error to dismiss the petition unless two-thirds in number of the resident land-owners remonstrate.</p>

<p>Quieting Title. — Cross-Complaint.—Sufficiency of.— In a suit to recover the possession of real estate, a cross-complaint alleges a good cause of action to quiet the title to said real estate which avers, among other things, that the cross-complainant is the owner of said real estate, and has been in possession thereof for fifteen years, and has made valuable improvements thereon, etc.; that the said real estate had been levied upon to satisfy an execution in favor of the plaintiff against the cross-complainant’s grantor upon a judgment long before rendered; that the cross-complainant was about to institute an injunction proceeding to prevent the sale of said real estate under said execution, when he was assured by the execution plaintiff and his attorney that he need not pay any attention to said sale; that it was not his intention to purchase or disturb the cross-complainant’s title; that he would bid off the land at a nominal sum merely to get it out of the way; that this was only to enable the sheriff to legally sell other valuable tracts of real estate which he desired to have sold; that he need not trouble himself to redeem from said sale; that relying upon said promises the cross-complainant permitted the land, which was of the value $6,000, to be sold for the nominal sum of $1, and did not redeem from said sale; that the purchaser secured a sheriff’s deed for the said real estate, and was proclaiming publicly that he was the owner of the same.</p> <p>Same. — Statute of Frauds. — Non-Application of. — The statute of frauds has no application to-the cause of action alleged in the above paragraph of cross-complaint. The cross-complaint does not seek to enforce a contract for the sale of real estate. The theory of the pleading is, that the cross-complainant is the owner of the real estate, and holds the legal title thereto, and that the plaintiff is asserting a claim thereto, and the demand is that the cross-complainant’s title to the land be quieted.</p> <p>Same. — Cross-Complainant’s Right of Action.— When it Accrued. — Negligence in Assertion of Rights. — As long as the plaintiff made no claim to the real estate, and permitted the cross-complainant to occupy it undisturbed, the latter had no right of action. It was not until the plaintiff asserted title, and instituted proceedings to recover the land, that it became necessary for the cross-complainant to ask that his title be quieted. Under the facts set forth the cross-complainant was not guilty of negligence in the assertion of his rights.</p> <p>Same. — Redemption Law. — Statute of Limitations. — The cause of action set forth in the second paragraph of cross-complaint, is not to redeem from the sheriff’s sale, but to quiet title. The redemption law has no possible application in such a case. The gravamen of the action is to quiet title to real estate, and not to enforce a parol contract, or for relief against fraud. The six years’ period of limitation does not apply. The period of limitation in such a case is fifteen years.</p>

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

<p>Intoxicating Liqtjor. — Affidavit and Information. — Insufficiency of under Section 2093, B. S. 1881. — Notice.—Service of upon Proprietor. — Employee.— Motion to Quash. — An affidavit and information which allege that an employee of a saloon sold intoxicating liquor to a person named who was in the habit of being intoxicated, after due notice in writing had been served by a citizen of the proper township upon the proprietor of the saloon, that the person to whom the liquor was sold was in the habit of being intoxicated, which notice it is averred was also left at and in the saloon, do not comply with the requirements of section 2093, R. S. 1881, and the motion to quash was properly sustained.</p> <p>Same. — Notice. —Sufficiency of, a Question of Proof. — What the Information Should have Charged. — The charge should have been that notice in writing had been given the defendant, and it would then have become a question of proof whether or not serving a notice upon the proprietor, and leaving a copy in the saloon, conveyed notice to the employee. It is only required to make the indictment or information sufficient that the charge should be laid substantially in the language of the statute, leaving the question of the sufficiency of the proof to the court or jury trying the cause.</p>

<p>Jtjdsment. — Relief.—Application for. — Complaint.—County Commissioners.— Falsity of Record. — Where a complaint, in an application to set aside a judgment, amounts to no more than that since the trial of the cause in ■ which the judgment was rendered the plaintiffs have discovered new evidence by which they can prove the falsity of the record of the board of commissioners establishing a gravel road, and showing notice of the filing of the report of the commissioners to assess the benefits, and the confirmation of such report by the board, a case for relief is not made under section 396, R. S. 1881, providing for the relief of a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.</p> <p>Same. — New Trial. — Newly-Discovered, Evidence. — Complaint.—Sufficiency of.— Such a complaint is not sufficient, as a complaint, for a new trial, on account of newly-discovered evidence. To be good for that purpose, the evidence given on the former trial should be set out; the complaint should have been filed not later than the second term after the discovery of such evidence, and within one year from the date of the rendition of the judgment sought to be vacated.</p>

<p>Corporation. — Complaint.—Plea in Abatement. — Insufficiency of. — Pleading.— The complaint in this case alleged that the president of a corporation on May 7th, 1885, presented to the directors of said corporation his claim, in writing, for salaiy due and expenses incurred on behalf of the corporation; that the same was allowed; that thereafter for value received, it was assigned to the plaintiff; that it was due and unpaid. The corporation pleaded in abatement that, on February 14th, 1883, its board of directors, at a meeting at which the assignor of the claim was present, adopted a resolution which provided, among other things, “ that the salary of the president and secretary of the company be paid monthly out of the money that may come into the hands of the treasurer from the first sale of bonds,” and that no bonds had been sold, etc.</p> <p>-Held, that the plea was bad for two reasons: 1st. The said resolution did not create a condition precedent to the payment of the officers’ salaries. 2d. The plea in abatement discloses the fact that a portion of the claim sued upon is made up of items expended on behalf of the company, to which there is no pretence that the resolution relied upon was applicable.</p> <p>Same. — Answer.—Board of Directors. — -Executive Committee Appointed by.— Powers of. — Assignor.—Payment.—A paragraph of answer was filed in the above cause which averred that on June 8th, 1882, the corporation through its board of directors adopted a by-law which provided for the appointment of an executive committee, to act until the next annual election of director’s, and to possess all the duties and powers of the board of directors during the intervals between the meetings of said board, and to report their action to said board; that said committee on June 15th, 1883, adopted a resolution suspending the salaries of the officers of the corporation, including the president, which was reported to the board of directors on the — day of-, 1883, and said resolution had never been rescinded or resisted; and that all sums due the assignor of the claim on account of salary and expenses had been fully paid.</p> <p>Held, that the answer was bad. It did not show that the action of the committee was approved by the board of directors, neither did it show when the authority of the committee to act ceased. The payment alleged is not shown to have been made before notice of the assignment to the plaintiff.</p> <p>Same. — Answer in Bar. — Partial Answer. — A paragraph of answer is bad which is pleaded in bar to the action, and not as a partial answer, and upon its face shows that it applies to only a portion of the claim sued upon.</p> <p>Same. — Answer.—Settlement.—Mistake or Fraud in. — Absence of Allegation as to. — Diligence.—A paragraph of answer was filed in the above cause which alleged that on February 14tb, 1883, the officers, directors and stockholders of the corporation entered into an agreement for reasons stated, that no part of the officers’ salaries should be paid until the sale of certain first mortgage bonds ; that said bonds had not been negotiated; that the assignor of the claim sued upon for certain considerations named, agreed that his salary should be suspended until the sale of said bonds, and that no payment should be paid to him except in the event of the sale of said bonds; that all the expenses incurred by him had been paid.</p> <p>Held,, that the answer was bad, as it does not allege any mistake or fraud in the settlement alleged in the complaint on May 7th, 1885, nor does it deny that the assignor of the cause of action had an account or claim, against the company on account of salary or money expended, nor does it allege that due diligence had been used to make a sale of the bonds.</p>

<p>Mortgage. — Executed by Husband for Purchase-Money. — Foreclosure.—Action Against Wife. — Limitation of Action. — Neither the six nor fifteen years’ statute of limitation bars an action to foreclose a mortgage against the wife, which is executed by the husband alone for the purchase-money of real estate. The mortgage lien is not barred until twenty years have elapsed from the time the cause of action has ac- • crued.</p> <p>Same. — Statute of Limitations. — So long as the mortgage is in full force and not barred by the statute of limitations as to the husband, it is in full force against the wife.</p>

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

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

<p>Criminal Law. — Affidavit.—Sufficiency of. — Following Usual Avocation on Sunday. — An affidavit which charges, in general terms, that the defendant, being over fourteen years of age, etc., was found engaged in following his usual avocation on Sunday, selling and delivering merchandise to customers, charges a public offence under section 2000, B. S. 1881. The offence consists in following his usual avocation on Sunday, and the kind of merchandise sold, to whom sold, and for what price, are wholly immaterial. The charge is in the language of the statute, and is, in this class of cases, sufficient.</p>

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

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

<p>Malpractice. — Action Against Partners. — Death of Partner Pendente Lite.— Survival of Action. — Where,pending suit against two physicians, partners, for damages for an injury alleged to have heen caused by the negligent and unskilful manner in which they reset and treated the plaintiff’s dislocated shoulder, one of the defendants dies, the action, while abating against the personal representatives of the deceased partner, may be prosecuted to judgment against the surviving partner.</p> <p>Same.' — Evidence.—Declarations of Physician. — It was not error to permit the plaintiff to describe the acts and repeat declarations made to him by the physician, deceased, while resetting his shoulder and treating it afterwards.</p> <p>Same. — Medical Examination of Parly. — It was not error to permit the plaintiff to exhibit his shoulder to the jury.</p> <p>Same.- — Physician Engaged in Other Occupation. — Evidence. — Evidence to prove that the physician who set the shoulder was extensively engaged in farming at and prior to the time of the injury was competent as affecting his skill and knowledge in his profession.</p> <p>Same. — Medical Examination.— When may he Properly Refused. — Where the •application for the medical examination of the plaintiff is not made until after the close of the plaintiff’s evidence, and no reason is shown for the delay in making it, it will not be error to refuse the order, especially where the plaintiff offers to submit to a private examination as soon as the attendance of medical experts on his behalf can be secured.</p> <p>Evidence. — Medical Boohs. — Reference to in Cross-Examination of Experts._ It is proper in a cross-examination, in order to test the learning of an expert witness, to refer to books of approved authority upon the subjects under investigation.</p> <p>Instructions to Jury. — As to Bias of Witnesses. — Propriety of. — An instruction to the jury that “the credit and.weight that should be attached to the testimony of a witness, depends upon his disinterestedness in the result of the suit, and his freedom from bias and prejudice. Wherever a witness is lacking in any of these respects it tends in a greater or less degree to weaken the force of his testimony,” is of doubtful propriety.</p>

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

<p>Animáis. — •Sheep-Killing Dogs. — Liability of Township. — Statute Construed.— Pleading. — The statute providing for the payment, by a township, for sheep killed and maimed by dogs (Elliott’s Supp., sections 444,445), does not confine the right to recover for sheep killed to persons engaged in sheep husbandry, but includes all citizens who are the .owners of sheep kept in the township; and, hence, a complaint which alleges that the sheep killed and injured were owned and pastured on the farm of the plaintiffs in the township is not bad for failing to allege that the plaintiffs were engaged in sheep husbandry, and that the sheep were owned and kept by them in the course of business as sheep raisers.</p> <p>'Same. — Sworn Deport. — Filing.—Complaint.—A complaint in an action founded on the above statute must allege the filing of a sworn statement with the trustee, in compliance with the law.</p>

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

<p>Deed. — Grantee’s Assumption of Mortgage Debt. — Mistake of Scrivener. — Deformation of Instrument. — Where a scrivener, in preparing a deed for land subject to a mortgage, by mistake and inadvertence, without the knowledge or direction of the purchaser, inserts a stipulation in the deed to the effect that the grantee assumes and agrees to pay the mortgage debt, the purchaser, who remains in ignorance of such stipulation until suit is brought, is entitled to have the deed reformed.</p> <p>Same. — Mortgagee.—Estoppel.—The mortgagee, present at the sale, with knowledge that the property was sold subject to the mortgage only, having'parted with nothing on the faith of the stipulation written in the deed, can not prevent the reformation of the deed by appealing to the doctrine of estoppel.</p>

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

<p>Pleadings. — Pleas in Abatement and in Bar. — Order of Pleading. — Where pleas in bar to an action on a promissory note are withdrawn and afterwards filed as pleas in abatement, it is error not to reject them upon motion, the statute (section 365, R. S. 1881), which is mandatory, providing that pleas in abatement shall precede pleas in bar.</p> <p>Same. — Promissory Note. — Principal and Surely. — Pktension of Time. — Answer Alleging. — Reply.—Sufficiency of. — To an action on a promissory note, extension of time by the payees was pleaded by the surety as matter in abatement instead of in bar, which it really was. The reply alleged that the surety after-the extension of time for payment, and with knowledge of such extension, gave the plaintiffs a written notice informing them that he was surety, and requiring them to sue upon the note.</p> <p>Held, that the reply avoided the answer considered, as pleaded, as an answer in abatement, the position of the surety being inconsistent in asking the action to abate, which he required the plaintiffs to bring.</p>

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

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

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

<p>Promissory Note. — Note of Third Person in Payment. — Judgment upon.— Estoppel. — Where the note of a third person is taken for a pre-existing debt, which is surrendered, and the holder of the note thus taken elects to sue and merge the note into a judgment, he will be estopped to say that he did not take the new note in substitution for and in extinguishment of the old debt.</p>

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

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

<p>Bill of Exceptions. — Long-Sand Manuscript Sow Made Part of. — A long-hand manuscript is not a written instrument within the meaning of section 626, R. S. 1881, so as to become part of the bill of exceptions by reference. To become part of the record it must be incorporated bodily into the bill of exceptions. Section 1410, R. S. 1881.</p> <p>Sams. — Certification of.— When Maybe Made. — The clerk of the circuit court can certify the long-hand manuscript of the evidence to the Supreme Court under the provision of section 1410, R. S. 1881, only when the same has been incorporated into a bill of exceptions.</p> <p>Evidence. — Not in Record.— Verdict. — Supreme Court. — Presumption.—Where the evidence is not properly in the record it will be presumed in favor of the rulings of the lower court that the evidence was sufficient to sustain the verdict of the jury.</p> <p>Railroad. — Postal Agent. — Death from Derailment of Car. — Construction of Car. — Evidence.—In an action to recover damages on account of the death of a postal agent caused by the car in which he was employed being thrown from the track and demolished, evidence relating to the making and inspection of cars generally, and not confined to the car in question, is inadmissible.</p> <p>Same. — Negligence.—Instruction.— Verdict. — In such action it was proper to instruct the jury that if the deceased was a postal agent, being carried on the railroad of the defendant, and the car in which the agent and mail were carried ran off the track and thereby killed him without any fault on his part, such facts would make a prima facie case of negligence, and would entitle the plaintiff to a verdict, unless it were found that the defendant, and those from whom it procured its cars, had used due care in constructing them, and from time to time had inspected them and failed to find any defects contributing to the injury.</p> <p>Same. — Probable Earnings of Deceased. — Measure of Damages. — Instruction.— An instruction to the jury that they might assess as damages what the deceased “ might have earned,” no't to exceed $10,000, during the period of his life in which he would have probably earned money, less proper deductions for cost of support and for the present payment of the damages assessed, is a proper instruction as to the measure of damages, where the jury in addition are instructed as to taking into consideration, as hearing upon the sum he would earn, his industry, sobriety, health, etc.</p>

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

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

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

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

<p>School Fund Mortgage. — -Payment of Interest by County. — Reimbursement of. — Foreclosure.— What School Fund is Entitled, to. — Where money is loaned out of the congressional school fund, and the mortgagor fails to pay the interest for a number of years, and during those years the county pays it out of its general fund, and afterwards the mortgage is foreclosed and the land is bid in by the auditor of the county on account of said school fund, and-subsequently the land is sold and conveyed to a third party, the school fund is only entitled to the principal of said loan and the interest thereon until after the county treasury is reimbursed because of the interest it has paid to the said fund on account of said loan.</p> <p>Same. — Duty of County as to Payment of Interest. — Sections 4893 and 4394,R.S. 1881, Construed. — The school fund is entrusted to the county, and it is charged with the amount which it receives; if loss occurs the county has to make that loss good ; and if the borrower, to whom the fund is loaned, fails to pay the interest as it annually falls due, the cou.nty is bound to pay it; and if the money is not loaned the county is chargeable with the interest thereon, and must pay it. When this is done, the obligation of the county has been fully met. It never was the intention of the framers of the Constitution that the school fund should be enhanced at the expense of the county, but simply that the fund should be preserved intact, and the interest annually paid. The provision in section 4394, R. S. 1881, in reference to the demands for which the mortgaged land shall he sold to satisfy, applies also to the preceding section.</p>

<p>Streets. — Railroad.—Nuisance.—Abatement of. — Evidence.—In an action for the abatement of a nuisance, by the removal of a railroad track, it is competent to prove that the plaintiff consented to the occupancy of the street, and assisted in making the fill upon which the track was laid.</p> <p>Same. — Abutting Owner. — Consent of to Occupancy of Street. — Injunction.'—An abutting owner, who expressly consents to the occupancy of a street, can not afterwards ask a court to enjoin the use of the street or award him damages.</p> <p>Same.— Use of by Railroad. — Grant of Right by City. — Liability for Making Grant. — Abutting Owner’s Proprietary Interest. — A city, in granting a right to a railroad company to use a street, does not deprive an abutting owner of his proprietary right in the street. The grant by the municipal corporation simply grants the privilege the city has power to grant. In granting such a privilege a city exercises a power delegated to it by the sovereign, and it is not liable for exercising such a power.</p> <p>Same. — Abutting Owner. — Recovery of Damages by. — Against whom Recovery Must be Had. — Railroad.—City.—The abutting owner, notwithstanding the grant by the municipality, has a right to recover such damages as he may have sustained by the additional burden imposed upon his land. His right to compensation, however, is against the railroad company, and not against the city.</p> <p>Same. — Recovery of Damages.— What Abutting Owner Must Show. — It is incumbent upon a property-owner who seeks to recover damages for the construction of a railroad track in a street, to show that the additional burden caused injury to his property. Where there are no damages there can be no recovery.</p>

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

<p>Statute of Frauds. — Promissory Note. — Joint Obligors.— Verbal Agreement of Surely to Pay Co-Obligor’s Half. — One of the joint obligors on a promissory note paid the entire note taking security from his co-obligor for his half, the surety verbally agreeing to stand as security for the coobligor’s one-half to the other obligor.</p> <p>Held, that the verbal promise of the surety to indemnify the obligor against loss by his co-obligor’s failure to pay his half, amounted to a promise to pay the co-obligor’s half, and is within the statute of frauds and unenforceable.</p>

<p>CbiminaIí Law. — Affidavit.-—Omission of Notarial Seal. — Information.—Motion to Quash. — Where the seal of the notary is not attached to the affidavit verified before him until after the verdict has been returned, a motion to quash the affidavit and the information based upon it should be sustained. The attaching of the seal after the motion in arrest of judgment is made, but before it is ruled upon, will not cure the error committed in overruling the motion to quash.</p>

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

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

<p>Real Estate. — Action to Recover. — Permissive Occupation. — Statute of Limitations. — Case Distinguished.• — Where a person occupies the land of another, without color or claim of title, and admitting the' title of the true owner, for twenty yeai-s, the right of the owner to recover his land is not barred by the statute of limitations. Vanduyn v. Hepner, 45 Ind. 589, distinguished.</p> <p>Same. — Adverse Possession to Defeat Action for Recovery. — In order to defeat an action for the recovery of real estate there must be an actual possession by an adverse claimaflt, and aij, intention by him to oust the true owner and possess for himself, and. this must be continued for twenty years.</p>

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

<p>Township Trustee. — Authority to Incur Debt. — The trustee has no authority to incur a debt beyond the fund on hand, and that to be derived from the tax levy for the year, without an order from the board of commissioners.</p> <p>Practice.— Written Instrument. — Question on Ruling as to. — Supreme Gourt. Where a written instrument is offered and excluded it must be brought into the record in order to present any question on the ruling excluding it.</p>

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

<p>Judgment. — By Default. — Belief From. — Where a defendant is properly served with process, he will not be relieved from a judgment taken against him by default, when his only excuse for not appearing is that he supposed the suit was commenced by the plaintiff’s son, against whom he had a set-off to the amount of his claim, and with whom he had an agreement that the action should be dismissed, it not appearing that the plaintiff or the attorney was responsible for his mistake or neglect.</p> <p>Same. — Counter- Affidavits. — Decision of Lower Court. — Where in such a proceeding affidavits and counter-affidavits are heard, the decision of the court will not be disturbed in case it is supported by any evidence.</p>

<p>Change oe Venue. — Delay in Filing Affidavit. — Where the affidavit for a change of venue is not filed until after the day fixed by a rule of court, no excuse being shown for the delay, it is not error to overrule the motion for a change of venue.</p> <p>Criminal Law! — Garrymg Concealed Weapons. — Mail Gamer a “Traveller —Where, in a prosecution for carrying concealed weapons, the evidence shows the defendant, a mail carrier, to have been carrying the weapon, while in the discharge of his duties, and entrusted with a sum of money, he is not liable, being a traveller within the exemption of the statute.</p> <p>Section 1985, R. S. 1881.</p>

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

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

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

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

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

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

<p>Mortgage. — Foreclosure.—Copy of Assignment. — Setting Out in Complaint. — In an action by the assignee of a note and mortgage to recover judgment on the note, and foreclose the mortgage, it is not necessary to set out in the complaint a copy of the assignment.</p> <p>Same. — Mortgagor.—Covenants of Warranty. — Estoppel to Deny Ownership.— A husband who executes a mortgage containing full covenants of warranty, with nothing on the face of the mortgage as to the ownership of the land therein described, is estopped from denying that at the time he executed it he owned the mortgaged premises.</p> <p>Same. — Foreclosure.—Husband and Wife. — Defence of Surety. — Reply.—Overruling Demurrer. — -Where, in an action to foreclose a mortgage executed by husband and wife, it appears on the face of the complaint that the money which the mortgage was intended to secure was borrowed and used by the wife to pay off a mortgage-lien upon the land, hers by descent from her father, an answer is bad which merely alleges generally that the debt was the husband’s debt, and the wife signed the mortgage as surety; and it is not error to overrule a demurrer to a reply attempting to set up an estoppel against a plea alleging want of power in the wife to make the mortgage.</p>

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

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

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

<p>Drainage. — Railroad.—Assessments.—Confirmation of by Court. — Lien.—Condition Precedent. — Filing Notice. — Under the act of 1883 the approval and confirmation by the court of the assessments as made in the report of the drainage commissioners creates the lien, and it is not necessary as a condition precedent to the right of the drainage commissioner to maintain an action for the collection of the assessments, that the percentage of assessments made by the commissioner having the work in charge shall have been reported to and confirmed by the court, nor that the commissioner shall have filed in the recorder’s office of the county notice that the work has been established by the court, and of the several assessments against the several tracts of land. Scott v. State, etc., 89 Ind. 368, distinguished.</p> <p>Same. — Finding.—Conclusion of Law. — Where the court, in an action against a railroad company to collect ditch assessments, after finding the facts specially as requested, instead of slating its conclusions of law in the usual manner, finds the amount tobe recovered and that the assessment be foreclosed on the property of the road described in the complaint, the only conclusion of law possible relating to the sum due and the lien, the objection that the court failed to state its conclusion of law on the facts found can not be sustained.</p> <p>Same. — Lien.— Void Sale. — Statute.—The statute (Elliott’s Supp., section 1189) creating a lien upon the road does not authorize the body of the road to be sold, and an order directing such sale is void.</p>

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

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

<p>Apptcat.. — Dismissal of. — Assignment of Errors.— When Must he Made. — Unless the assignment of error is made within one year from the date of the rendition of the judgment appealed from, the appeal will be dismissed, notwithstanding the transcript may have been filed within the year.</p>

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

<p>Constitutional Law. — Schools and School Affairs. — Exclusive Power of Legislature Over. — Local Self-Government. — The control of schools and school affairs is vested in the law making power of the State, upon the principle that schools are intrinsically matters of State concern, and not of a local nature. Both by the Constitution and the intrinsic nature of the duty and the power, the authority is exclusively legislative, and the matter over which it is to be exercised solely of State concern.</p> <p>Same. — Legislative Power not Exhausted by Exercise. — Legislative Discretion. — ■ Change of Plans. — The power over schools being a legislative one, is not exhausted by exercise. The Legislature having tried one plan is not precluded from trying another. It has a choice of methods, and may change its plans as often as it deems necessary or expedient, and for mistakes or abuses it is answerable to the people, but not to the courts.</p> <p>Same. — Public Schools. — Statutory Authority Over. — It has been the uniform course, since the organization of the State, to regulate and control school affairs by legislation. All the public schools have been established under legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school that has been established owes its existence to legislation; and every school officer owes his authority to the statute.</p> <p>Same.— Uniform System of Common Schools. — Constitutional Provision Concerning. — The Constitution expressly enjoins upon the General Assembly the duty “ to provide, by law, for a general and uniform system of common schools,” and the power is granted to enable the General Assembly to effectively perform the duty. It is impossible to conceive of the existence of a uniform system of common schools, without power lodged somewhere, to make it uniform, and even in the absence of express constitutional provisions that power must necessarily reside in the Legislature.</p> <p>Same. — Course of Study. — System of Instruction. — Authority of General Assembly as to. — If the power does reside in the General Assembly, then it must have, as an incident of the principal power, the authority to prescribe the course of study and the system of instruction that shall be pursued and adopted, as well as the books which shall be used.</p> <p>Same. — Monopolies.—Act of March %d, 1889, does not Create. — The act of March 2d, 1889 (Acts 1889, p. 74), is not within the constitutional provisions directed against monopolies. There is no exclusion of bidders, no limitation of the right to furnish school books to the people of the State to any class; on the contrary, all who are prepared to supply such books as the statute makes the standard are invited to compete for the contract. No special privilege is granted to any one, no right denied to any one, for all are invited to enter the field as competitors.</p> <p>'Same. — Procuring and Supplying of Books.— What Legislature May Prescribe. —The Legislature has the power to require a designated series of books to be used in the schools, and to require that the books selected shall be obtained by the school officers from the person to whom the contract for supplying them may be awarded. It may not only prescribe regulations for usingthe books designated, but it may, also, declare how the books shall be obtained and distributed.</p> <p>¡Same. — Legislative Discretion. — ■Courts can not Control. — Where the power exercised is a legislative one, it is indisputably true that the courts can not control the legislative discretion.</p> <p>■Same. — Exercise of Legislative Bight. — Privileges Conferred. — If the right of regulation and control exists, then the fact that the exercise of the right does exclude some publisher is an inseparable and unavoidable condition of the exercise of the right. Without it the right is annihilated. If a clear and legislative right can not be exercised without conferring privileges in the nature of a monopoly, then a monopoly may be created, for a denial of the right will not be suffered.</p> <p>¡Same. — Public Officer. — Duty of. — How May be Deduced. — At is not necessary that a statute should in direct terms declare the duty of an officer, in order to make it an imperative one. The duty may be deduced from the general provisions and scope of the statute, regard being had to the evil intended to be remedied, and the object sought to be accomplished.</p> <p>¡Same. — Act of March %d, 1889. — Duties of Township Trustees Under. — Under the act of March 2d, 1889 (Acts 1889, p. 74), the township trustees in this State are required to procure the books for which the State board contracts. They can not determine whether they will, or will not, procure the books. To give effect to the intention of the Legislature, and to secure the accomplishment of the principal object of the statute, it must be held that its provisions create a legal duty which the trustees can not put on or off at pleasure. It is manifest that to so construe the statute as to enable township trustees to refuse to make reports, or to prepare certificates, or to procure books, would defeat the leading purpose of the legislature.</p> <p>Same. — School Officers — Legislature May Prescribe Duties of. — The power over the school system is legislative and exclusive, and the Legislature has authority to impose upon all officers whose tenure is legislative, such duties respecting school affairs, as it deems proper. All such officers take their offices cum onere, and must do what the Legislature commands or else resign.</p> <p>Berkshire, J., dissents.</p>

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

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

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

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

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

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

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

<p>Guardian and Ward. — Informal Settlement. — Condition of Estate. — Securities Taken. — Duty of Guardian. — A guardian who makes an informal settlement with, and obtains a release from, his ward, assumes the burden of making it clearly appear that he fully and fairly disclosed the condition of the ward’s estate at the time of the settlement, and that he paid over the amount found due either in money or such securities as had been taken iu pursuance of the order of the court, or in the exercise of such diligence and prudence as men display in the conduct of their own affairs. The burden rests upon the guardian to show affirmatively that he exercised the required degree of care in taking the securities which he turned over to his ward, or that they were good beyond peradventure, and that they will be collectible when they fall due.</p> <p>Same. — Settlement.—Retention of Ward’s Property. — A settlement out of court, without turning over to the ward the money, property, or securities which actually constitute the trust estate, is not such a settlement as will stand in a court of equity when seasonably assailed.</p> <p>Same. — Loans on Individual Credit. — Risk.—Loans made on the credit of individuals, or firms, without security, or with doubtful security, are ordinarily at the risk of the guardian.</p> <p>Same. — Insolvent Securities. — Exoneration of Guardian. — Tn order that a guardian may be exonerated from loss on account of insolvent securities taken in the course of the guardianship, it is his duty to keep the trust estate separate from his own funds, and to act in good faith and observe that sound discretion and prudence usually exercised by diligent men about their own business.</p> <p>Same. — Turning Over Estate.- — -Settlement in Good Faith. — Cancellation of.— Where adequate care is observed, and the condition of the estate and the character of investments are truthfully reported to the court, as the law requires, a guardian may relieve himself and his sureties by turning over the estate to his ward, who has attained his majority, in the condition in which it actually exists at the time a settlement is made. Where a settlement is thus made, and it afterwards turns out that securities so taken and turned over were worthless, in order to justify a cancellation of the settlement there must appear to have been negligence or bad faith on the part of the guardian.</p> <p>Same. — Notes Taken in Individual Transactions. — Acceptance of by Ward.— Release Not a Bar to Setting Aside Final Settlement. — Where unsecured notes, the makers of which are of doubtful solvency, have been taken in the individual transactions of the guardian, and where these have been accepted in lieu of money upon the faith that they were available solvent securities, the receipt and release of the ward is not a bar to the opening up of the final settlement.</p> <p>Same.— Withholding Receipt and Release.— Guardian’s Duly. — In such case the law makes it the duty of the guardian to withhold the receipt and the release, and not secure his discharge as guardian until the money due his ward has been paid over.</p> <p>Same. — Tendering Back Notes.— Condition Precedent. — Tendering back the notes so taken is not a condition precedent to the maintenance of the action to set aside the final settlement. An offer of the ward at the hearing to return whatever may have been received is sufficient.</p>

<p>Banks and Banking. — Presentation of Check. — Drawermthout Funds on Deposit. — Presentation of a check, and notice of non-payment to the drawer, are not necessary where the drawer has no funds on deposit for the payment of the check, or has withdrawn them, or if by agreement between the drawer and payee the check is not to be presented.</p> <p>Same. — Checks.—Where Drawn. — The checks in controversy in this case were each dated at “ Lafayette, Ind.,” and drawn on the “ First National Bank,” the name of no other place or bank appearing upon the check, and the evidence showing that there was a First National Bank at Lafayette.</p> <p>Held, that the presumption is that the checks were drawn upon the First National Bank of Lafayette.</p> <p>Same.— When Checks begin to Draw Interest. — The cause of action accrues upon checks when presented, or when they would have been presented if there had been any funds of the drawer in the bank, and the payee is entitled to interest from that date.</p> <p>Same. — Check.— Willingness of Bank to Pay. — Evidence.—Evidence to prove that a bank would have paid a check, whether the drawer had any funds in the bank or not, is properly excluded. The bank having none of the funds of the drawer, the payee is relieved from making a demand], and a willingness on the part of the bank to pay the check of the drawer can make no difference.</p> <p>Same. — Bank Entries. — Admissibility of. — Entries in the books of a bank, in the usual course of business, showing the state of the depositor’s account, are admissible, though some of the persons making the entries are dead, others beyond the jurisdiction of the court, and others have no recollection of the transaction except to know that the books were kept in due course of the banking business, and were correct.</p> <p>Same. — Abstract of Books. — Fkpert Witness. — -It is competent to permit an expert witness, who has examined the books of a bank and made an abstract of them, and testified as a witness, to give in evidence the statement to be read to the jury, an opportunity being given for cross-examination.</p> <p>Pleading. — Cause of Action. — Declaration on in Various Forms. — Proof.— Where each cause of action is declared on in several various forms of averments, it is not necessary that the allegations of each paragraph of the complaint should be proved.</p>

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

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

<p>Statute oj? Frauds. — Seal Estate. — Sale.—Memorandum.—Insufficient Description. — A memorandum of a sale of real estate alleged to have been made by the defendant to the plaintiff was as follows: “$200. New Albany, April 23d, 1887. Received of J. B. Wilstach two hundred dollars as part purchase-money of a lot at $2,560. Balance twenty-three . hundred and sixty dollars. Geo. Heyd, Admr. Est. Jacob Heyd.” And I endorsed on the reverse side were the words “ The lot No. 14 Ekin ave.”</p> <p>lleld, in an action for damages for the alleged breach of contract for the sale of the lot, that the memorandum of sale, which is wholly defective independent of the endorsement of the number of the lot, is insufficient to take the case out of the statute of frauds.</p>

<p>Township.— County Commissioners. — Employment of Attorneys by. — Liability of Township for.- — -Where attorneys are employed by the board of county commissioners in a proceeding against a county auditor to compel that officer to place certain taxes on the duplicate, the township in which the alleged taxable property is situated is not liable for the payment of the fees of said attorneys.</p> <p>Same. — Attorney’s Fees. — Non-Liability of Township. — Employment by County Commissioners. — The service for which compensation is claimed having been performed in pursuance of the request of the board of county commissioners in an action against the county auditor, without any employment from the township authorities, the township can not be held liable.</p> <p>Same. — Attorney’s Fees.— When Township Bound for.- — -Cownty Commissioners. — Sow Far can Bind Township. — To bind the township, in the present instance, its obligation must be predicated upon some statute imposing liability, or it must have arisen out of a contract either express or implied, and the contract must have been made by the township, or by some one on its behalf who had authority, and who undertook to bind it as its agent. There is no statute imposing such liability, and the board of county commissioners can only bind the township in matters specifically prescribed and pointed out in the law. It does not appear, however, that the board of commissioners assumed to act for the township. The presumption is that the board was acting for the county.</p>

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

<p>Witness. — Ante-Trial Examinatim. — Introduction of by Opposing Party. — Contradiction of Answers Therein. — Where one of the parties to a suit is examined out of court under the provisions of section 510, R. S. 1881, the opposing party may introduce said examination in evidence, and then testify to a state of facts directly in conflict with some of the answers made in said examination, and in addition negative in specific and direct language certain of the said answers.</p> <p>Same. — Ante-Trial Examination. — Musi be Introduced, as an Entirety. — Contradiction of. — Impeachment of Witness. — The examination must be introduced as an entirety. The opposing party by its introduction is not precluded by the answers made therein. Wheth.er the party so examined is regarded as a witness testifying in the presence of the court or not, the opposing party is not concluded from showing by other witnesses the contrary of what appears in the examination. Under section 507, R. S. 1881, a party producing a witness is even allowed to impeach him by showing that he has made statements out of court which differ from his evidence in court, and may contradict him by other evidence.</p>

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

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

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