Volume 123 — Indiana Reports

<p>Township Trustee. — Contraction- of Debt'by, in Excess of Fund on Sand.— Sow May be Made. — County Commissioners. — A township trustee has no power to bind his township by contracting a debt in excess of the fund on hand to which the debt is chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, without first procuring an order from the hoard of county commissioners, as provided in sections 6006 and 6007, R. S. 1881.</p> <p>Same. — School Supplies. — Purchase of without Authority. — Suit to Recover for.— Value of Property Received.— Whal Township May Show as to. — Rescission of Contract. — Tender.—Evidence.—When the trustee of a school township undertakes to bind his township by contracting a debt in disregard of the above sections, and property has been received and retained which is beneficial to the township, it is competent for the township to show that the property is worth less than the contract price, without offering to rescind the contract or tendering back the property received.</p> <p>Same. — Invalid. Contract for School Supplies. — Right of Recovery against Township.— What Based upon. — -Extent of Township’s Obligation. — Where it appears, in a case like the present, that the contract was invalid for want of a compliance with the statute, the right to recover does not rest upon the contract, but upon the fact that the township received and enjoyed the benefit of property suitable and necessary for the use of the schools. In such a case the township is only bound to pay the actual cash value of what it received.</p>

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

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

<p>Judgment. — Suretyship. — Subrogation. — Statute of Limitations: — Where a judgment is recovered against both the makers oí a promissory note} prima fade co-principals, the issue of suretyship not having been tried or adjudged in the proceedings, an action brought subsequently by one of the judgment defendants who has paid the judgment to try the question of his suretyship in the judgment and to be subrogated to the rights of the judgment plaintiff is governed by section 292, R. S. 1881, which requires all actions on accounts and contracts not in writing to be brought within six years next after the cause of action accrues, and is barred by the statute of limitations if not brought within that time. The action in such case is upon the implied promise of the principal to pay the surety.</p>

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

<p>Feaudueent Conveyance.— Voluntary Conveyance Without Consideration.— Fraud. — Allegation of. — It is not necessary in an action to set aside a fraudulent conveyance to allege fraud, or the knowledge of fraud, on the part of a person taking a voluntary conveyance without a consideration.</p>

<p>Building Association. — Property of. — Liability of Secretary. — The secretary of a building association is not an insurer of the property and money coming into his hands as such secretary, but his liability is only that of an ordinary trustee or bailee for hire. Following Norwood v. Harness, 98 Ind. 134.</p> <p>Same. — Promissory Note. — Loss of Without Secretary’s Negligence. — Liability.— Where such secretary entrusts a promissory note for safe keeping to the president of the association, a responsible person and a prudent business man, the association having no place for the safe keeping of its securities, and it is lost through no negligence of the secretary, and comes into the hands of the makers who defeat an action for recovery, the secretary is not liable for the amount of the note.</p>

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

<p>Ckiminaij Law. — Keeping Disorderly Liquor Shop. — Indictment.—Sufficiency of. — A count in an indictment charging the defendant with a violation of section 2097, R. S. 1881, is good, which employs the language of the statute in charging the offence. A second count of the indictment is also good, which sets forth the particular disorderly acts and conduct of those who were allowed to drink liquor in the appellee’s dram shop.</p>

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

<p>Administrator. — Appointment of. — Discretion of Circuit Court as to. — The circuit court has a wide discretion in matters concerning the appointment of administrators, and the appellate court will not control that discretion, -nor interfere with its exercise, except where it has been abused.</p>

<p>• Municipal Cobeobation. — Bonds of. — Recovery Upon When Lost. — Indemnification of City. — In a suit brought against a municipality upon certain of its bonds, the plaintiff is entitled to recover where the complaint avers that the bonds were lost before maturity, and while they were held and owned by the plaintiff, and the offer is made to indemnify the city against loss on account of the inability of the plaintiff to present, or return the bonds for cancellation, and an approved bond is brought into court for the indemnity of the city.</p> <p>Same. — Municipal Bonds. — Governed by Law Merchant. — Municipal bonds, drawn payable to bearer, are negotiable as inland bills of exchange, and are, therefore, only payable after they are due, upon presentation at the office of the city treasurer, or at the place where they are made payable. They are governed by the law merchant.</p> <p>Bill oe Exchange. — Payment of. — Agreement of Acceptor, or Payor, as to.— Paioer of Court of. Equity Concerning. — The agreement of an acceptor, or payor, of a bill of exchange is, that upon a date fixed he will pay upon presentment of the identical bill. He has the right to insist upon the condition, but a court of equity has the power to compel payment upon suitable indemnity being offered.</p> <p>Contbact.— Unforeseen Accident. — Equitable Relief Against. — Where an accident occurs, which was not anticipated and provided for when the contract was made, and which leaves one of the parties remediless in a court of law, the jurisdiction of a court of equity may then be invoked to give relief against the accident.</p>

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

<p>Paeineeship. — Surviving Partner. — Firm Property. — Control of. — A surviving partner has the right to the control and possession of the property of the firm, and may dispose of it in order to adjust the partnership accounts, and is only liable to the representatives of the deceased partner for what remains in his hands after the partnership affairs are settled.</p> <p>Same. — Heirs.—Bights of. — Payment of Debts. — Suiplus.—The rights of the heirs of a deceased partner are subject to the adjustment of all claims between the partners, and attach only to the surplus which remains when the partnership debts are all paid, and the affairs of the firm wound up. Until all the debts are paid the rights of the heirs do not attach.</p> <p>Same. — Suiviving Partner. — Accounting by.— What Heirs Must Show. — Where it appears that the surviving partner has paid all the partnership debts, and that the estate of the deceased partner is indebted to him, it is essential to the right of the heirs to call him to account that they make it appear that he has in his hands partnership property in excess of the amount required to reimburse himself.</p> <p>Same. — Custody of Assets. — Mismanagement.—A surviving partner is entitled to the custody and management of the assets, unless it be shown that he is committing waste, or otherwise mismanaging the affairs of the firm, and is only liable to the heirs or representatives of the deceased partner for what remains after everything is settled up.</p> <p>Same. — Testamentary Power. — Fkeeutors.—Discretion of. — -Where the powers conferred by a will include the power to settle, adjust, and compromise all debts owing by the testator, and to make settlements with his former partners, and each of thfem, without authority from any court, and to sell and convey, either at public or private sale, any or all of the testator’s real estate on such terms as to them shall seem best, in order to pay and satisfy debts against his estate, the purpose of the testator plainly appears to invest his executors with power to make compromises and settlements at their discretion, and to sell and convey his real and personal estate according to their best judgment.</p> <p>Same. — Sale.—Notice.—-A sale made by the executors under such powers, without giving notice of the time, place, and terms of sale, and without including the value of the real estate in the bond given by them when they qualified, does not render the conveyance invalid.</p> <p>Same. — Testator’s Interest. — Conveyance to Surviving Partner. — Impeachment of. — Fraud.—A conveyance by the executors in pursuance of the terms of such will to the surviving partner of the interest of the testator in the firm property, in consideration of the payment by the surviving partner of the firm debts, and of certain individual debts of the deceased partner, and a conveyance to the widow of certain real estate, will not be disturbed by a court of equity until it is impeached as fraudulent or unfair; or unless collusion between the executors and surviving partner is shown.</p> <p>Same. — Deceased Partner. — -Interest of.- — Purchase from Personal Representatives. — While a surviving partner may not become a purchaser of the firm property at his own sale, he is not disqualified from becoming the purchaser of the interest of his deceased partner in the partnership business from his legal representatives.</p> <p>SAME. — Accowniing between Executors and Surviving Partner. — Acquiescence in. — Court of Equity. — A settlement and accounting between the executors and the surviving partner having been had, a court of equity, after an acquiescence in the settlement for fourteen years, unexplained by circumstances, will not decree the opening up of the account, although it appears that the settlement has been irregularly made.</p>

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

<p>Mobt&AQ-e. — Foreclosure of. — Conclusiveness of Judgment. — Failure of Party to Appear. — Sheriff’s Certificate.— Vohmtary Transfer of. — Partition.—Certain real estate owned by A. was mortgaged by him to B., guardian, and thereafter A. conveyed to C. one-half of.the mortgaged premises, and subsequently conveyed the remainder to D., subject to one-half of said mortgage. Afterwards A. paid off one-half of said mortgage indebtedness, but no release was entered of any portion of said mortgage. The mortgage was foreclosed, C. and all persons interested being made parties defendant. C., relying as it is alleged upon her warranty deed, and on the belief that her portion of the real estate was released from the lien of said mortgage, did not enter an appearance. Judgment was rendered on the mortgage note for the balance due, and a decree of foreclosure entered against C. and the other defendants, and the whole tract ordered to be sold. The mortgagee was the purchaser at sheriff’s sale, and thereafter he assigned one-half of the sheriff’s certificate to A.’s wife and one-half to his ward, and they obtained from the sheriff at the expiration of the year of redemption each a deed for an undivided one-half of said real estate.</p> <p>Held, that C. was bound by the judgment in the foreclosure proceeding, and could not maintain an action to enjoin the sale of said real estate in a partition suit instituted by the holders of the sheriff’s deed.</p> <p>Held, also, that the transfer of one-half of the sheriff’s certificate to A.’s wife was a voluntary transfer, under the facts of the ease, without any consideration, but that C. could not question such transfer.</p> <p>Same. —Foreclosure Proceeding. — Failure of Party to Assert Rights. — Default. —Judgment.—Where one is made a party to a foreclosure proceeding, and has knowledge of facts that would protect her rights in said action, and fails to appear and assert her rights, but suffers default, she is bound by the judgment rendered in the foreclosure proceeding.</p> <p>Deed. — Covenants of Warranty. — Husband and Wife. — After-Acquired Title.— Where real estate is owned by the husband, and he and his wife join in a warranty deed to the same, the husband is liable on the covenants of warranty, and if he afterwards acquire a title to said real estate, it will enure to the benefit of his grantee. The wife, however, is not bound by said covenants, and if she afterwards acquire title to said real estate it does not enure to the benefit of the husband’s grantee.</p>

<p>Real Estate. — Contract to Convey in Consideration of Care and Support.— Specific Performance. — An executory agreement to convey real estate in consideration of support and maintenance to be furnished, or of personal services to be performed, will not be specifically enforced. The agreement must have been executed at least so far that a refusal would operate as a fraud upon the party who has performed his part, and place him in a situation in which he could not De comnensated in damages.</p> <p>Same. — Possession.—Where such a contract is established by comp (tent evidence, and has been withdrawn from the operation of the statute by possession taken thereunder, and by fair and complete performance on the one hand, a decree for specific performance may be had in favor of the party who has taken possession and fully performed his part in reliance on the contract.</p> <p>Same. — Beneficiary.—Contract.— Performance.— Fraud. — Where it appears that the contract was fully and fairly performed, to the entiresatisfaction of the beneficiary, it is too late, in the absence of any showing that the latter was overreached, or unfairly dealt with, for his heirs or personal representatives to insist that the contract was uncertain and indefinite, or that it was of a class which, while remaining executory, will not be specifically enforced.</p> <p>Same. — Conveyance.—Repudiation.— Demand. — Where a party who has covenanted to convey real estate repudiates, or denies, the contract, demand for a conveyance is not a condition precedent to an enforcement of the specific performance of such contract.</p>

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

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

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

<p>Ceiminal Law. — Indictment.—Transcript.—Grand Jury.— Variance in Name of Foreman of. — Presumptions.—Where the name of Thomas Bellows appears on the indictment as the foreman of the grand jury returning the same, while the transcript recites that George Bellows acted as such foreman, it must be presumed that he whose name appears on the indictment, was the duly appointed foreman, and that the recital to the contrary in the transcript is a mistake of the clerk. It must be also presumed that the judge whose duty it was to inspect the indictment, knew who the foreman of the grand jury was at the time the indictment was returned.</p> <p>Same. — Mode of Constituting Grand Jury. — Defect in Indictment as to. — Must be Baised by Plea.— When Plea must be Filed. — A defect in an indictment which relates to the mode of constituting the grand jury, and which does not appear upon the record, ean only be raised by plea, and that plea must be filed before entering a plea of not guilty.</p>

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

<p>Libel. — Damages.—Malice.—A person injured by the publication of a libellous article, or the speaking of false and slanderous words, is entitled to compensation for the injury sustained, whether the person speaking the words or publishing the article did so maliciously or not.</p> <p>Same. — Exemplary Damages.— When not Allowed. — In an action seeking the recovery of damages for the publication of a malicious libel, the alleged libellous charge being that the plaintiff had committed the crime of grand larceny, no exemplary damages can be assessed. The motives which led to the publication are not material.</p> <p>Same. — Evidence.—Improper Admission of.— When Parly can not Complain.— Where, in an action for malicious libel, the defendant has improperly been permitted to testify over the objection of the plaintiff, as to his motive in making the publication, and his belief as to the truth of the facts stated in the article, and that he had no malice toward the plaintiff, he can not complain that the court allowed the plaintiff to introduce in evidence other articles published in his paper subsequent to the article complained of, derogatory to the plaintiff’s character. A party must be consistent. When he asks and obtains a ruling admitting evidence in his own favor, he can not complain when the court adheres to the same rule in admitting the evidence of his adversary.</p> <p>Same. — Malice.-—Conversation to Show Absence of. — Inadmissibility of in Evidence. — In an action for malicious libel, when the charge was of such a character that exemplary damages could not be assessed, a conversation between the plaintiff’s father and a witness for the defendants, at which the plaintiff was not present, and which could only be competent to show what knowledge and evidence the defendants were in possession of and acted upon in publishing the article complained of, as' tending to rebut the presumption of malice, was properly excluded.</p> <p>Evidence. — Cross-Examinatim.—Conversations.—Impeachment of Witness. — It is not competent on the cross-examination of a witness to 'interrogate him concerning conversations with a third person which were not referred to in the examination in chief, and which were not called out for the purpose of impeaching the witness by showing that he had made statements out of court different from those he had made on the witness stand.</p>

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

<p>Cbiminal Law.— Witness. — State can not be Compelled to Call. — The State can not he compelled to call witnesses at the instance of the accused. If the accused desires the testimony of the witnesses not called he must call them.</p>

<p>From the La Porte Circuit Court.</p>

<p>WiMj. — Construction of.— Widow. — Life-Estate.—One of the items of a will was as follows: “ I will and bequeath to my wife, H. E. C., all my real estate and personal property for her maintenance and the maintenance of my four children (naming them); my said wife shall have full control and management of my said property, to sell or dispose of any or all of said property, and to collect all debts due me, and to do any and all things necessary to fully settle up my estate without administration, or being accountable to any person, court or tribunal.” It was provided further, in another item, that any of the estate remaining after the death of the testator’s wife should go to his children in equal portions. There were other items providing that the wife should manage the estate, school the children, with directions as to the building of a house, and as to the manner of controlling the estate. The widow having married after the death of the testator, had one child by her second husband, and afterwards died; and after her death the child died. The children by the first marriage all survive, and the land devised was never sold.</p> <p>Held, that the wife took only a life-estate in the land, with a power of disposition limited to the purposes named in the will, and that neither her husband nor her child by him took any interest in the land at her death.</p>

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

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

<p>Judgment. — Idem of. — Prior Equities. — A judgment is a lien on the interest the debtor has in the land. Prior equities will prevail against a judgment lien.</p> <p>Same. — Lien.—Husband and Wife. — Peal Estate.- — Purchase of udtk Wif¿s Money. — Equitable Owner. — Where land is purchased with money given to the wife by her father to buy a home, and afterwards the husband buys other land, which it is agreed shall belong to the wife, it being understood by the party advancing the purchase-money that he is to be repaid from money to be realized from the sale of the property first purchased, and is so repaid, the wife is the equitable owner of the land last purchased, and it is not subject to the lien of a judgment obtained against the husband.</p>

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

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

<p>Alley. — Obstruction of. — Action for Damages.— When Private Citizen may Maintain. — An action for damages can not be maintained by a private citizen against one who obstructs a public highway, unless such citizen, by reason of such obstruction, has sustained some damage peculiar to himself, and not suffered by the public generally.</p> <p>Same. — Action by Private Citizen. — Special Damages. — Sufficiency of Complaint. —Where, in an action for damages for the obstruction of an alley, it is alleged in the complaint that the plaintiff’s building, in which is a dry goods and grocery store, and in which the post-office is maintained, and her barn, corn-crib, wood-house, and other outbuildings are erected upon this alley, and that it furnishes the means of ingress and egress to and from all except the store building, and that such obstruction wholly cuts off such ingress and egress, an interest and an injury are shown, such as are not common to the public generally.</p> <p>Same. — Dedication to Public. — Declarations of Owner. — Admissibility of. — Evidence. — The declarations of a person, while owning the land over which the alley alleged to be obstructed runs, tending to prove an intention to dedicate the alley to the use of the public as a highway, are competent.</p> <p>Same. — Intention to Dedicate to Public. — How Determined. — As to whether a person intends to make a dedication of ground to the public for a street or other purpose, must be determined from his acts and declarations explanatory thereof, in connection with all the circumstances that surround and throw light upon the subject, and not from what he may subsequently testify in relation to his real intentions.</p> <p>Same. — Dedication to Public.— What Amounts to. — Where the owner of the lots over which the alley alleged to be obstructed runs, sold the lots with reference to this alley as a public highway, it amounted to a dedication thereof to the public.</p> <p>Same.— Verdict. — Sufficiency of. — In an action for damages for the obstruction of an alley, where the verdict upon a reasonable construction assesses the damages with reference to the alley in controversy, as an appurtenance to the property of the plaintiff, it covers all the issues presented by the pleadings and is sufficient to authorize the rendition of judgment upon it.</p>

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

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

<p>Statute of Limitations. — Exceptions.— Pleading.— Demurrer. — "Where there are exceptions in the statute of limitations, a demurrer will not •lie to a complaint unless it appears that the case is not within any of of the exceptions.</p> <p>•Jurisdiction. — Allegation of Jurisdictional Facts. — Where the court in which an action is brought is one of general jurisdiction, it is unnecessary to allege jurisdictional facts.</p> <p>Bill of Exceptions. — Date of Presentation.— Where Must Appear.— Endorsement. — The date of the presentation of a bill of exceptions must appear in the bill itself, and not by way of endorsement.</p> <p>Practice. — Question upon Instruction. — How Must he Presented. — Where a party desires to present a question on instructions to be considered by the Supreme Court without the evidence, section 630 of the statute, or rule 30, must be followed in making up the record.</p> <p>Evidence. — Competent and Incompetent. — Mingling of. — A party who mingles competent with incompetent evidence can not complain if the whole offer is rejected. A party must, in offering evidence, separate the competent from the incompetent, and offer only the former, for he has no right to impose that duty on the court.</p> <p>Seduction. — Means Employed. — Promise of Marriage. — Reliancewpon.—Pleading. — Where a complaint for seduction, in stating the means used by the defendant to accomplish his purpose, alleges that one of the promises made by him was that he would marry the plaintiff, it is sufficient without averring that the plaintiff relied upon the promise.</p> <p>Same. — Reputation of Plaintiff. — Evidence.—In an action for seduction, evidence tending to prove that after the seduction of the plaintiff her reputation was bad, is inadmissible.</p> <p>Same. — Intimacy between Plaintiff and Defendant. — Evidence.—In such action it is competent to permit the plaintiff to prove the intimacy of the defendant with her, and to show his general line of conduct. This is true, even though several acts of sexual intercourse are shown to have taken place.</p> <p>Same.— Defendant’s Financial Standing.— Evidence. — In an action by a woman for her own seduction, it is proper to give evidence of the financial standing of the defendant.</p>

<p>Mokiqage. — Notes Secured by. — Assumption of Payment by Grantee. — Grantee's Discharge in Bankruptcy. — Effect of. — A. purchased a town lot of B. and gave his notes, secured by mortgage, in part payment therefor. A. subsequently conveyed the lot to C., who, as a part of the consideration, endorsed the notes and assumed the payment of them. O. conveyed the real estate, by warranty deed, to D., and D., also by warranty deed, to E. C. (A.’s grantee) paid off all the notes except one, and upon this unpaid note an action was brought against A. by the widow of the mortgagee, and a judgment recovered, which A. was compelled to pay; C. became a bankrupt, and secured a discharge in a bankruptcy proceeding. A suit was instituted by A.’s heirs against C. and the several grantees.</p> <p>Held, that when C. received his conveyance he became liable as the principal debtor for the payment of the notes of his grantor, and there was, therefore, an existing indebtedness from which the proceedings in bankruptcy discharged him.</p> <p>Same. — Discharge in Bankruptcy. — Answer Alleging. — Sufficiency of. — A.’s grantee, in separate answers, and in bar of his personal liability, alleged his discharge as a bankrupt by the proper court, a copy of his certificate of discharge being filed with the answers.</p> <p>Held, that the answers were good. The court in which the bankruptcy proceedings occurred having jurisdiction, the validity of the judgment is not subject to collateral attack. It was wholly immaterial whether A.’s grantee became a bankrupt voluntarily or involuntarily,</p> <p>AME. — Release.—Purchaser with Notice. — The discharge of A.’s grantee, the principal debtor, as a bankrupt, did not release the mortgage. The mortgage debt, evidenced by the note, being unpaid, and the mortgage unsatisfied of record when E. received his conveyance, he was a purchaser with notice.</p> <p>Same. — Gonmyance.—-Principal and Surety. — Covenants.—When A. conveyed to his grantee, the latter became the principal and the former his sewas not an encumbrance covered by the covenants in the deed of the grantor. curity. The debt having become the debt of the grantee, the mortgage</p> <p>Same.— Title. — Notice of Encumbrance. — Payment of Mortgage Debt.- — E., who acquired title to the property, with notice of the encumbrance, held it subject to the payment of the mortgage debt, at the suit of any one into whose hands it should come, except the principal debtor, A.’s grantee. A., as surety, having paid the debt, was subrogated to the rights of the mortgagee, with his remedy.</p> <p>Supreme Court. — Evidence.—Failure of to Support Finding. — Reversal of Judgment. — While a judgment will not be reversed where there is some evidence, however slight, to support the finding of the court, or the verdict of the jury, the judgment will be reversed if the finding is not sustained by sufficient evidence.</p>

<p>Public Officer. — Compensation of. — Liability of Comity for. — The rule is that before a public officer can demand and receive compensation for services rendered for a county, in the absence of a contract, he must show: First. A statute authorizing him to receive compensation for such services, and fixing the amount thereof; and, Second. A statute authorizing the commissioners to pay for such services out of the county treasury. A county can not be liable for fees and charges of officers without an express statute upon the subject.</p> <p>County Surveyor. — Sendees of Deputies. — County not Liable for. — There is no statute in the State fixing any compensation to be paid to deputy surveyors for services rendered to the county, or to any one else, and the county can not be required to pay for such services. They must be paid by the officer who employs the deputies, and not out of the public treasury.</p> <p>Same. — Acts of 1889, p. 58. — Sendees Required by.— Who Must Perform. — Deputy Surveyors. — Services of. — Non-liability of County for. — It seems that the services required of the county surveyor under the drainage act approved February 28th, 1889 (Acts of 1889, p. 53), are to be performed by him personally, and not by deputy. The county is not liable for the services of deputies employed by the county surveyor to do any of the work embraced in said act. Certain of the duties imposed upon the surveyor by said act are of a judicial character, and judicial power can not be delegated.</p>

<p>Insubance. —Indivisibility of Policy.— Void as to One Item. — E/fect as to Other Items. — Where a policy of fire insurance provided, among other things, that in case the assured was not the sole, absolute and unconditional owner of the property insured, the policy should be void, and among the items covered by the policy was a soda fountain and appurtenances which had been purchased with a reservation of title in the seller until the notes for the purchase-price had been fully paid — no statement to that effect appearing in the policy — and full payment had not been made at the date of the fire, the policy was void as to the soda fountain and apparatus connected therewith, and was also void, by reason thereof, as to all the other items covered by the same risk. The contract was entire and indivisible, and to hold the company liable would be to enforce upon it an obligation which it never entered into.</p> <p>Same. — True Title of Property — ■Failure to Slate. — Effect of.- — -Absence of Fraudulent Intention. — Knowledge of Agent. — Where the validity of the insurance is made to depend upon the assured being the absolute and unconditional owner of the true title of the property insured, a failure to set forth the title with substantial accuracy renders the policy void, not only as to the property, the title to which is not truly represented, but as to all other property covered by the same policy, and subject to the same risk. This is so, even though the owner had no intention to deceive. This rule has no application, however, in case it appears that the agent of the insurance company, who consummated the contract and issued the policy, was informed, or knew of the true state of the title, or ownership of the property.</p> <p>New Tbial. — Seasonableness of Motion.— When too Late to Object. — Where a motion for a new trial has been made and entertained by the court, it is too late after a new trial has been granted to object that the motion was not seasonably made.</p>

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

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

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

<p>Assignment on Ebbob. — Availability of Error in Favor of All Joining. — An assignment of error must assign an error which is available in favor of all who join in the assignment.</p> <p>Pbactice. — Evidence.—Not Properly in Record.— Supreme Court. — Where what purports to be the evidence is written out and signed by a person who adds to his name the word “ reporter,” and is attached to the transcript, no question upon the evidence is presented for consideration, it not being properly in the record.</p>

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

<p>Proceedings Supplementary to Execution. — New Parties. — In a proceeding supplementary to execution, new parties may be brought in by proper pleadings, and be required to answer in respect to any interest or conflicting claim which they may have or assert to the property or indebtedness due the execution defendant which is sought to be reached.</p> <p>Same. — Trial by Jury. — In a proceeding supplementary to execution, when issues of fact are formed, a jury trial as in ordinary civil cases is proper.</p> <p>Abatement. — Prior Action Pending.— What Plea Must Show. — A plea in abatement on the ground of a prior action pending, is insufficient which does not show that another action was pending between the same parties, involving the same cause of action, at the time the proceeding sought to be abated was commenced.</p> <p>Venire de Novo. — General Verdict. — Sufficiency of. — Where a general verdict is returned by the jury, and the whole issue is found, there is no ground upon which to predicate a motion for a venire de novo.</p> <p>New Trial. — Application for.— When Must be Made. — An application for a new trial must be made during the term at which the verdict or decision is rendered, or if the verdict or decision be rendered on the last day of the session or term of court, then on the first day of the next term.</p> <p>Same. — Motion for. — Time of Filing. — Agreement as to. — Authority of Attorney to Make. — Semble, it is exceedingly doubtful whether an attorney would have authority to bind his client by an arrangement whereby the motion for a new trial .might be made at the next term of court, although the decision or verdict was not rendered on the last day of the term, unless the agreement is entered upon the minutes of the court, or made in conformity with the provisions of the.statute.</p>

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

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

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

<p>Husband and Wipe. — Separate Properly of Wife. — Husband’s Possession of. —Presumption.—The presumption of law, under the statute of this State, is that the separate property, or money, of a wife, which is taken possession of by the husband, is to be considered as held by him for her use and benefit, until such presumption is overcome by evidence showing that she intended to make a gift of the property to him.</p> <p>Same.— Wife’s Separóle Property. — Possession of by Husband.— Wife’s Consent. — Trustee.—Decedents’ Estates. — Where the wife never acquired the actual dominion over her money, the husband having collected and appropriated it to his own use before it ever came to her possession, the mere fact that she consented that he might collect and receive the money, raises no presumption whatever that she intended to bestow it upon her husband. In such a case, he becomes her agent, or trustee, and must account, unless he affirmatively shows that the intention of his wife was to bestow her property upon him as a gift. The wife may file a claim against his estate for the recovery thereof.</p> <p>Same.— Wife’s Separate Estate. — Income of.— Use by Husband. — Presumption as to. — Where a husband, with the consent of his wife, is in the habit of receiving the income, profits and dividends of her separate estate, and using them for the benefit of the family, a different rule prevails, and it will be presumed that the wife consented and agreed that he should so receive and use them, and the law will not compel him to account.</p> <p>Decedents’ Estates.— Widow. — Filing of Claim by.— Will. — Right of Election. — When Must be Exercised. — Abatement.-—-Where a widow presents a claim against the estate of' her husband, before she renounces the provision made for her by the will, no obstacle is presented thereby to the recovery of the money due her, nor is the fact that she has not renounced the benefits of the will any ground for the abatement of her claim. The statute gives her one year within which to elect whether she will take under the provisions of the will or under the law.</p> <p>Same.— Will. — Correspondence with Statutory Provisions. — Effect of. — Where a will makes the same provision for the wife as that made by the statute, it may be doubted whether the will as to her is not a nullity. In such a case the law takes the preference and casts the estate, and the will is inoperative.</p> <p>Same. — Evidence.—Conversation between Claimant and Heir. — Admissibility of. —A conversation between a claimant against an estate and one of the heirs, though it may have occurred in the presence of the testator, was not a matter which occurred with the testator during his lifetime, within the meaning of the statute.</p>

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

<p>City. — Streets.—Grading.—Damages Occasioned by Failure to Exercise Proper Skill. — Liability.—In the absence of some statute upon the subject, a city is not liable to an individual citizen for damages caused by the grading of a street, nor for damages caused by changing the grade of a street when once established. Where, however, the city in grading the streets and making public improvements fails to exercise proper care and skill in the selection of a plan, and by reason thereof an injury to the owner of private property occurs, which, by the exercise of reasonable skill and care, could have been avoided, the city is liable for such injury.</p> <p>Same. — Gka/nge of Grade. — Action for Damages. — Pleading.—Complaint.— Insufficiency of Under Theory Adopted. — A complaint in an action for damages, on the theory that damages have been occasioned to the plaintiff by a change in the established grade of a street, is bad where it contains no allegation that a grade had been legally established, and that a change was made in the grade without first assessing the damages occasioned thereby.</p>

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

<p>Ajdministeatoe. — Conversion.—Fraudulent Conveyance. — Setting Aside. — An administrator de bonis non, who obtains a judgment against his predecessor for the conversion by the former of the assets of the estate, may, without proceeding to collect the judgment from the sureties, maintain an action to set aside a conveyance which the defaulting administrator has fraudulently made of land purchased with the trust funds.</p>

<p>Ees Adjudicata. — Matters Determined on Former Appeals. — Matters determined on former appeals are res adjudicata. The judgment is conclusive upon the question throughout all subsequent stages of the case.</p> <p>Evidence. — Dost Public Record.— When Contents May be Shown by Parol.— To entitle a party to give parol evidence of the contents of a paper alleged to be lost, he must show that a diligent and careful search was made at the proper place and by the proper persons, and that it could not be found. Where a paper which the law req uires to be filed and kept by a public officer as part of the records or papers of his office, is alleged to be lost, the court has a right to require before receiving parol evidence of its contents that careful and diligent search was made in the office, and by one so fully acquainted with the office, records and papers as to make it probable that if the paper was in the office he would find it.</p>

<p>Slander. — Pleading.—Several Sets of Slanderous Words Spoken. — Complaint Alleging. — Demurrer to Whole Complaint. — Where the demurrer is to the whole complaint in an action for slander, if one set of slanderous words, there being several sets alleged to have been spoken, are properly pleaded so as to constitute a cause of action, the demurrer to the complaint is properly overruled.</p> <p>Same. — Actionable Words. — Need not be Specific. — Inducement.—Innuendo.— Where slanderous words are used, which, by proper inducement and innuendo, may be shown to have been used with the intent to charge, and were understood by the persons who heard them to charge, a female with fornication, incest, adultery or whoredom, they are actionable the same as if the person speaking the words had charged such female in specific words with being guilty of fornication or adultery.</p> <p>Same.— Understanding of Words Spoken. — Statement of by Witnesses. — In an action for slander it is not error to allow the witnesses to state their understanding of the words proved to have been spoken by the defendant.</p> <p>Same. — -Words Spoken at Other Times and Places. — Malice.—In such action it is competent to prove the speaking of slanderous words at other times and places than alleged in the complaint, as tending to show malice and ill-will.</p>

<p>Mechanic’s Lien.— On Married, Woman’s Separate Estate.— Pleading.— Husband Made Party. — Demurrer. —The rule that a complaint must state facts sufficient to constitute a cause of action against all who are made defendants, does not apply to one who is made a party to a foreclosure or other suit of an equitable character, or in the nature of a proceeding in rem to answer to his supposed or possible, but unknown or undefined interest in the property to be affected by the litigation. Hence, in an action to foreclose a mechanic’s lien against a married woman’s separate estate, the husband being made a party to answer to any interest he may have in the land, it is not error to overrule the husband’s separate demurrer to the complaint.</p> <p>Same.— Uncompleted Building. — Lien for Work upon. — Laborers and material men who are employed to do work or furnish material, with the purpose of the employer, then formed, to continue the work to the completion of a building for which the foundation is thus being prepared, are entitled to acquire a lien under the statute. If the work be done or materials furnished for the use or purpose designated in the statute, the right to acquire a lien is complete, and the right to a lien will not be defeated because the owner may for any reason fail to complete the work.</p> <p>Same. — Notice.—Land Included. — The notice to acquire a mechanic’s lien does not, by including more land than is necessary to discharge the lien, render the lien invalid, nor does it render it necessarily indefinite.</p> <p>Same. — Release of Lien. — Recovery of Personal Judgment. — Taxation of Costs.— Where, in an action to enforce and foreclose a mechanic’s lien upon real estate, the property is released from the lien, which is valid, by the execution of an undertaking pursuant to the statute, and a personal judgment is recovered for less than fifty dollars, the original demand being for less than that amount, the defendant is not entitled to have the costs taxed against the plaintiffs, such action not being within the provisions of section 591, E. S. 1881, regulating the subject of costs in certain actions for money demands on contracts.</p> <p>Same. — Notice Creating Lien. — Exhibit.—The original, or the copy of a notice creating the lien, must be exhibited with or made part of the complaint.</p>

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

<p>Promissory Note. — Surely.—Liability of. — May be Fixed by Agreement. — A party signing a note as surety may, at the time of such signing, fix his liability as between him and the other parties whose names precede his, by agreement, written or parol, express or implied, without consultation with the other sureties whose names appear on the note.</p> <p>Same. — Suit for Contribution. — Answer Alleging Non-Liability.- — Sufficiency of. —Demurrer.—An answer to a suit instituted by a surety on a note to compel contribution from the defendant, is good which avers that the defendant, at the time he signed the note, did so with the express understanding and agreement, both with the principals in the note and the payee, that he was to be liable only as a surety for the plaintiff. This being true, as admitted by the demurrer filed to the answer the defendant was not a co-surety with the plaintiff, and was not liable to contribution.</p> <p>Same. — Evidence.—Liability of Parly. — Conversations Relating to. — Admissibility of. — Res Oestce. — Conversations between the defendant and the principals in the note and the payee, pending the negotiations which resulted in the signing of the note paid by the plaintiff, relating to the character of the liability which the defendant would assume in signing, and also what was said at the time the defendant signed the note, were admissible in evidence, though had in the absence of the plaintiff. They were part of the res gestee, and tended to show the character in which the defendant signed the note, and his relation to the other parties to the paper.</p>

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

<p>Costs. — Illegal Taxation. — Injunction.—Assault and Battery. — Where a defendant, charged with assault and battery, is acquitted by the justice, but is held to answer a charge of attempting to provoke an assault, directed by the justice to he preferred, to which, after a change of venue, he pleads guilty, paying the fine and costs, the taxing of the costs of the former case into the latter is a nullity, and injunction will lie to prevent their collection.</p>

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

<p>Telegbaph Company. — Message.—Failure to Deliver. — Statutory Penalty.— Residence.— What Complaint Must Show. — A paragraph of complaint seeking to recover the statutory penalty for the failure of a telegraph company to deliver a message is bad where it fails to aver, in accordance with section 4178, R. S. 1881, that the person to whom the message was addressed resided within one mile of the telegraph station, or within the city or town in which such station is.</p> <p>Same. — Statute.—Repeal of by Implication. — Act of 1885, p. 151, Construed.— Repeals by implication are not favored, and if a reasonable construction can be found, which will enable both the old and the new laws to stand, that construction will be applied. The act of 1885 (Acts 1885, p. 151) did not repeal by implication section 4178, R. S. 1881. There is nothing in the said act regulating the distance or prescribing the limits within which telegraph companies shall deliver messages.</p> <p>Same. — Non-Delivery of Message. — Sufficiency of Complaint. — Mental Anguish. —Recovery of Damages for. — A paragraph of complaint which seeks to recover damages from a telegraph company for a breach of duty because of its failure to deliver the following message: “February 21st, 1887. Jamestown, Indiana. To S. Clements. My wife is very ill — not expected to live. Wm. Reese,” and which contains proper averments as to the pre-payment of the message, its importance, and the urgency of its delivery, and the knowledge of the company in reference thereto, and the uneasiness, anguish and anxiety suffered by the plaintiff by reason of its non-delivery, states a good cause of action, and under it the plaintiff is entitled to recover substantive damages.</p> <p>Same. — Resulting Mental Anguish. — Ignorance of Telegraph Company. — Answer. —Insufficiency of. — An answer to the above paragraph of complaint is bad which alleges that the telegraph company was not informed when it undertook to send the message by what appeared on the face of it, or otherwise, that the appellant would suffer pecuniary loss and be damaged because of mental suffering in case of a failure to deliver the message.</p> <p>Same. — Importance of Message. — Notice to Company. — Duty of Company. — Negligence.- — -When the importance of a telegraph message appears on its face the company will be held to have notice of the urgency for its delivery, and to have contracted with reference to it. It is the duty of the company under such circumstances to make prompt and reasonable effort to deliver the message to the person to whom it was addressed, and failing to do so the company will be guilty of negligence.</p> <p>Same. — Non-Delivery of Message. — Mental Anguish. — Right to Recover for.— Measure of Damages. — When, at the time of the delivery of a message to it, the telegraph company has information that mental anguish might, and most probably would, come to some person in case it failed to act promptly in transmitting and delivering the message, such a result is within the undertaking. In such a case the sender of the message is entitled to recover damages for the mental suffering which he endured; and his measure of damages is the amount paid for the transmission of the message, and in addition what would seem to be just as a compensation for his mental anguish.</p> <p>Statute. — Penal.—How Construed. — Recovery of Penally.— What Complaint Must Show. — Penal statutes are to have a strict construction, and to recover a penalty the facts stated in the pleading must clearly show a right to the penalty claimed, notwithstanding such strict construction.</p>

<p>Receiver. — Trust Properly. — Purchase of. — A receiver may not purchase for his own benefit property connected with the subject-matter of his receivership, or in his possession in that capacity.</p> <p>Same. — Mortgaged Premises. — Purchase of. — Rents and Profits. — Disposition of # by Gourl. — Where a receiver, appointed to receive the rents and profits of mortgaged land pending the sale and during the year for redemption, acquires title to the mortgaged premises in his hands as such receiver, his act in so doing may be treated by the parties to the suit in which he was appointed as absolutely void, and as conferring on him no right to the rents and profits which he was appointed to receive. He can not question the correctness of any order made by the court for the disposition of the funds in his hands.</p> <p>Same. — Control of by Courts. — Application of Receivership Funds. — Courts have power over their own receivers to control them in the settlement of all demands against the property in their hands. A receiver has no discretion in general in the application of funds in his hands by virtue of his receivership, but holds them strictly subject to the order of the court, and to be disposed of as the court may direct.</p>

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

<p>Gift. — Causa Mortis. — Facts Constituting. — The deceased had a tin box, which he kept in a private drawer in the vault of a hank safe. Shortly before his death he entrusted the keys of his box and private drawer to the cashier of the bank, in whose custody they remained until after the decedent’s death. Three days before his death, with knowledge that dissolution was imminent, he declared to the cashier that it had always been his purpose to give P. G. D. $5,000, and that he had put $2,000 in gold in a bag and marked the name of the latter upon it, and left it in the tin box in the vault (the bag so marked was found after bis death in the tin box); he then directed the cashier to go to the bank and count out $3,000 more in gold coin and put in a sack and mark it as the other sack was marked, and that he should also count out $1,000 in currency and place it in an envelope for Mrs. N., and put her name upon it. He then directed that in case of his death, the sacks and package should be delivered by the cashier to the parties indicated by the writing thereon. The testator upon being informed that his directions as to counting out the gold coin and currency and marking it bad been carried out, expressed his approval.</p> <p>Held, that the above facts show a valid delivery to the cashier for the use of the donees, and that the delivery was made in view of impending death.</p> <p>Same. — Causa Mortis.— When Consummated. — A gift causa mortis is consummated when a person in peril of death, and under the apprehension of approaching dissolution from an existing disorder, delivers, or causes to he delivered, to another, or affords the other the means of obtaining possession of any personal goods for his own use, upon the express or implied condition that in case the donor shall be delivered from the peril of death, the gift shall be defeated.</p> <p>Same. — Delivery to Third Person.— Validity of. — The delivery need not be made to the donee personally, but may be made to another as his agent or trustee. A delivery thus made is as effectual as though it had been made directly to the donee.</p> <p>Same. — Delivery to Third Person. — Effect of. — Trustee for Intended Donee.— Where one in view of impending dissolution, clearly and intelligently manifests an intention to make a present gift of personal property to another, and in consummation of his intention makes such a delivery to a third person for the use of the intended donee as he is then capable of making, considering the character and situation of the property, the person to whom the delivery is made will be presumed, in the absence of countervailing circumstances, to take the property as the trustee of the intended donee, and not merely as the agent of the donor.</p> <p>Same. — Donees.—Acceptance of Gift by Them. — Presumption as to. — Trustee.— Delivery.— When Effectual. — It was not necessary that the donees should have constituted the cashier of the bank their bailee or trustee, nor that they should have known of the intended gift, or of the delivery, in order to make it an effectual delivery to him as their trustee. The gift being beneficial to them, their acceptance of it is presumed, until the presumption is removed.</p> <p>Same. — Trustee for Donees. — Competent Witness. — The cashier of the bank being the trustee for the donees, and not the agent of the donor, was a competent witness in a suit involving the validity of the gift.</p>

<p>Special Finding. — Partition.—Advancement.—Gift.—In a suit for partition between heirs the finding stated that the deceased made advancements to certain of his children, and that no other advancements were made to either the children or the grandchildren of the deceased; but stated also, after the facts so found, that the advancements were made with the avowed purpose of making the children to whom the advancements were made as nearly equal as he was able to his two other children, and that the deceased then said he was not able to give them an amount equal to the advancements he had made to his other two children.</p> <p>Held, disregarding the matter of evidence improperly in the finding, or taking the finding as a whole without eliminating the evidence, that the finding was sufficient to support a conclusion of law that the money paid by the ancestor to his children was by way of advancement and not as a gift, and charging them therewith.</p> <p>Same. — Evidence Intermingled with Facts. — Elimination of. — Conclusion of Law. • — The finding of the evidence, although it be all the evidence, will not support a conclusion of law. The fact that the court has intermingled with the finding of facts statements or items of evidence will not vitiate the finding, if sufficient facts be found to support the conclusion of law; but if by eliminating from the finding the items of evidence, there be sufficient facts found to support the conclusions of law, and the proper conclusion of law is stated from the facts found, there is no error in the conclusion of law, and the case will not be reversed.</p>

<p>From the La Porte Circuit Court.</p>

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

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

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

<p>Marriage Contract. — Breach of. — Complaint.— Sufficiency of. — A complaint in an action for breach of promise of marriage alleged that on October 1st, 1885, in consideration that the plaintiff being unmarried, at the request of the defendant, promised to marry him, the defendant promised to marry the plaintiff on or about April 30th, 1886; that the plaintiff had been during all the time and still vras ready; that she had incurred great expense in preparation for the marriage, of all of.which defendant had notice; that the defendant refused to marry the plaintiff at the date fixed, and that he has hitherto wholly refused to do so.</p> <p>Held, that the complaint is sufficient, and not open to the objection that there were no mutual promises maturing at the same time.</p> <p>Held, also, that there is a sufficient averment of the breach of the promise.</p> <p>Same. — Contract to Marry Generally. — Agreement to Marry Within Reasonable lime Implied. — Where the conduct and language of the parties are such as clearly to indicate a mutual engagement and understanding to marry either on a day fixed or within a reasonable time, the contract is sufficiently established. A contract to marry generally, without specifying the time, implies an agreement to marry within a reasonable time.</p> <p>Same.— When Right of Action Accrues. — Any conduct by a party who has promised to marry another, which amounts to a repudiation of the contract, renders the contract no longer obligatory on the other, and constitutes such a breach as entitles the latter to sue.</p>

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

<p>Bastabdy. —Justices of the Peace. — Jurisdiction.—Justices of the peace have jurisdiction in bastardy proceedings, and a judgment rendered by a justice is a bar to another prosecution for the same purpose.</p> <p>Same. — Provision for Maintenance of Ghild. — Judgment of Dismissal. — Bar to Puture Prosecution. — "Where proceedings in bastardy are instituted by an infant female before a justice of the peace, and in the absence of the defendant, he having fled before arrest, his friends pay her a sum of money, and it is then shown to the justice by the plaintiff and her attorney that suitable provision has been made for the child, whereupon a judgment of dismissal is entered, such judgment is a bar to a future prosecution, unless it appears that the court was misled and deceived as to the provision made for the child.</p>

<p>Practice. — Motion to Strike Out Parts of Complaint. — Overruling of. — Harmless Error. — Error can not be predicated upon the overruling by the court of a motion to strike out parts of a complaint.</p> <p>Life Insurance. — Policy.—Conditions Working Forfeiture. — Construction of. —All conditions in policies of insurance which when violated work a forfeiture as against the assured, are to be construed, liberally in favor of the assured and strictly against the insurer.</p> <p>Same. — Condition as to Intemperance of Accused. — Construction.—Under a condition in a policy of life insurance, avoiding it if the assured “ shall become so far intemperate as to impair his health seriously and permanently, or induce delirium tremens,” it is not enough to work a forfeiture that the assured was a person who indulged in the use of intoxicating liquor unless the impairment of health resulting therefrom was serious and permanent.</p> <p>Same. — Term “Delirium Tremens.” — Instruction Defining.- — An instruction defining the term “ delirium tremens ” as signifying “ that diseased condition of the brain said to be produced by the excessive and prolonged use of spirituous liquors,” is not unfair to the insurance company.</p> <p>Same. — Physician.—Competency of as Witness. — Under section 497, B. S. 1881, providing that physicians shall not be competent witnesses “ as to matter communicated to them, as such, by patients, in the course of their professional business,” the attending physician of the assured is not competent to testify to facts within his knowledge because of the eonfidental relation existing between him and his patient.</p> <p>Same. — Testimony of Partner. — The testimony of one of two physicians, partners, as to information secured when the assured was in consultation with the other in the office of the firm, is also incompetent under section 497, supra.</p> <p>Witness. — Competency of.— Waiver. — Depositions.—Where depositions are taken to break the force of the witnesses’ testimony as given in the deposition previously taken by the other party, objection to the competency of the witnesses is not thereby waived.</p> <p>¡Same. — “Preliminary Proofs of Death.” — Certificate of. — Bill of Exceptions. — Evidence. — The objection that the “preliminary proofs of death” are not shown to have been made to the company as a condition precedent to the bringing of the action, can not be sustained, when a physician testifies to forwarding, a proper certificate to the company, and the bill of exceptions recites that the certificate was read in evidence to the jury by the insurance company.</p>

<p>Tax Sale. — Insufficient Description. — Lien.—Repayment of Purchase-Money. —Mandate.—At a tax sale land was sold by the following description: 115x138 feet, corner of Columbia and Sixth streets, section 20, town. 23, range 4 west, city of Lafayette.</p> <p>Held, that the description, while not sufficient to pass title, is sufficient to carry the lien, and that the purchaser can not compel by mandate the repayment of the money paid at the tax sale.</p>

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

<p>County Commissioners. — Officers.—Auditor.—Fees can not be Increased.— Free Gravel Hoads. — A board of county commissioners has no authority to make orders whereby the statutory fees of the auditor of the county will be increased, by allowing him compensation for services to be rendered in connection with the construction of free gravel roads, and in the swearing of parties to claims for allowances filed before the county board.</p>

<p>Verdict. — General.—Answers to Interrogatories. — New Trial. — Motion for.— Evidence. — If a general verdict is supported by the evidence a motion for a new trial will be overruled which assigns as a reason that it is not so supported, without regard to the manner in which interrogatories may be answered.</p>

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

<p>Railboad. — Station Platforms. — Duty to Keep in Repair. — Liability for Injuries. — Railway companies are bound to keep the platforms at their passenger stations in a safe condition for persons to enter and leave the cars, and a failure to do so is a neglect of duty which makes the company liable to persons injured without fault on their part on account of such defective platform.</p> <p>Same. — Injury to Passenger while Alighting from Train. — Contributory Negligence. — Question of Fact for Jury. — Where a passenger, riding on the caboose of a freight train, carefully alights therefrom while the train is moving slowly, about two miles an hour, stepping from the caboose to the platform of the station, and is thrown under the train and injured, by reason of its defective condition, unknown to him, the question as to whether or not such passenger was guilty of contributory negligence is a fact to be determined by the jury.</p> <p>Same. — Evidence.—In an action to recover for such injury sustained, a question as to the effort made by the plaintiff to prevent himself from falling is not objectionable as calling for a conclusion or opinion.</p> <p>Same. — How Accident Occurred. — Evidence as to. — Physician.—Competency of as Witness. — In such action a physician who had assisted in dressing the plaintiff’s injuries, and while so engaged, in conversation with the plaintiff had asked how the accident occurred, is incompetent to testify as to the information obtained.</p> <p>Same. — Platform.—Implied Representation of Safety. — Instruction.—An instruction to the jury to the effect that a railroad company, in constructing a platform for the use of passengers in getting on and off trains at a pub-lie railway station, impliedly represents' to the public that it is reasonably safe and sufficient for such purpose, and that it is their duty to make it so that it may be used safely in approaching and leaving trains in any way in which passengers might reasonably and with reasonable care be expected to approach and leave trains, is unobjectionable.</p> <p>Same. — Defective Condition of Platform,. — Passenger’s Knowledge of. — Instruction. — It was not error to instruct the jury to the effect that although the passenger may have previously known of the condition of the platform, and known its condition at the time he stepped upon it, he was not required to abandon the use of it and seek some other place of approaching and leaving the train, and that if he used care proportioned to the known danger, and was injured by reason of such defect, he would not be barred from recovery.</p> <p>Witness. — Cross-Examination of.-r-Refusal. — Harmless Error. — There is no available error in a ruling sustaining an objection to cross-examining questions when afterwards a full cross-examination of the witness on the subject is permitted.</p> <p>Same. — Testimony on Former Trial.- — -Bill of Exceptions Containing. — Inadmissibility of to Contradict Witness at Retrial. — A bill of exceptions containing the testimony given by a witness at a former trial is inadmissible for the purpose of contradicting or impeaching the same witness at a retrial of the same cause.</p>

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

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

<p>Special Yeedict. — Replevin.—Right of Possession. — Remand.—Sufficiency oj Averments os to. — A special verdict in an action of replevin which finds that the plaintiff was and is the owner of the animal in dispute, and follows this finding with a statement of facts showing such ownership, is not open to the objection that a conclusion of law merely is stated. A sufficient refusal by the defendant to deliver the animal to the plaintiff is shown by a statement in the special verdict that the plaintiff made a demand of the defendant of the property described in the complaint, and after said demand was made plaintiff caused a writ of replevin to be issued and replevied the property from the defendant.</p> <p>Same. — Personal Property. — Rightful Possession Shown. — Continuation of Right Presumed. — When the facts stated in a special verdict show a rightful possession of personal property, the continuation of the right must be presumed until the contrary is made to appear.</p> <p>Replevin. — Remand.— When Necessary. — It is only in cases where the property of one person is lawfully in the possession of another, and where a demand will render the possession unlawful, that a demand is necessary to the maintenance of an action of replevin.</p> <p>EsteAYS. — Ruty of Taker-Up. — Personal Notice to Owner.— What Must Contain. — Advertising and Posting. — Estray Law Strictly Construed. — One who takes up an animal as an estray is not entitled to retain the same as against the owner for the payment of charges and damages unless within twenty-four hours after such taking up he gives notice to the owner of such animal, if known, and he can be immediately found. Such notice must contain a statement of the trespass and the damages assessed: otherwise it will be insufficient. In cases where personal notice is given, the statute requiring notice by posting or advertising does not apply. Laws like the estray law are construed strictly against the party claiming the benefit thereof, and he must follow their provisions closely or lose all benefit therefrom.</p>

<p>County Surveyor. — Repair of Drains. — Injunction.—Completion of Ditch.— Presumption. — In an action to enjoin the county surveyor, and certain persons to whom he had let the contract, from proceeding with the repair of a drain, where it appears that the drain was duly located and established, that the lands benefited were assessed and the work allotted, and that the county surveyor was proceeding seven years afterwards to put the drain in repair, it will he presumed, as against a general averment that the drain was not completed according to the original plans and specifications, that the work was duly accepted as the law required; and the acceptance creates the conclusive presumption that the work was completed according to the plans and specifications on file.</p> <p>Same. — Contract to Repair. — Notice.—-There is no statute requiring the county surveyor to give notice of the letting of the contract to repair, nor is it required that the repairs shall he made by contract.</p>

<p>Principal and Surety. — Judgment.—Collateral Security. — Reassignment of by Judgment Creditor. — Non-Release of Surely.— Conveyance. — Pees due a judgment debtor, as a public officer, were assigned to the judgment creditor as collateral security to secure the payment of the judgment. The judgment debtor’s surety brought an action to enjoin the enforcement of the judgment, and to have the judgment declared satisfied. It was alleged that the judgment creditor, without attempting to collect the fees assigned, out of which he might have collected his judgment, reassigned them to the principal debtor. The surety claimed his release because of such surrender of the security. The evidence showed that before this assignment to the judgment creditor the judgment debtor had conveyed to his surety the land subject to the judgment creditor’s lien, under an agreement that he was to pay the consideration named on the judgment, and on other indebtedness of his grantor.</p> <p>Held, that making the conveyance released the principal debtor, and that the judgment may be enforced against the surety.</p> <p>Same. — Fee-Bills.—Evidence.—Testimony that fee-bills were issued on all the fees due the principal debtor, and that nothing could be collected thereon, was inadmissible on behalf of the defendant, as calling for the opinion of the witness.</p> <p>Same. — Book-Entries.—Memorandum, of. — IMdence.—A book prepared by the surety, containing a copy of the copies of the original book entries, showing the fees due the principal debtor, was inadmissible in evidence, it appearing by the evidence that there was a copy of the original entries at hand which could have been given in evidence.</p> <p>Same. — Reinstatement of Judgment. — Transcript of Evidence. — Inadmissibility of in Subsequent Action for Injunction. — The transcript of the evidence given before the master commissioner in a suit by the judgment creditor against the principal debtor and the surety to reinstate the judgment in controversy, the record of which had been destroyed, was inadmissible in the subsequent action to prevent the enforcement of the judgment, the judgment in the reinstatement proceedings having been rendered on default, and not upon the evidence contained in the transcript.</p> <p>Same. — Real Estate Lien. — Conveyance.—Where land upon which a judgment creditor has a lien is conveyed by the principal debtor to his surety as an indemnity, the reassignment by the judgment creditor of the collateral security assigned after the conveyance to secure the payment of the judgment, does not discharge the lien on the land in the hands of the surety.</p>

<p>Bailment. — Letting of Animal for Eire. — Negligence of Bailee. — Instruction to Jury. — In an action to recover damages for the death of a mare, owned by the plaintiff and hired by the defendants, to be used in operating a street railway, caused, as alleged, by the defendants’ authorizing and permitting their servants to carelessly and negligently use, feed, and water said mare improperly, it was not error to charge the jury to the effect that the plaintiff, by hiring the mare for such use, engaged that she was reasonably fit and suitable for the work which she was hired to perform; that the defendants had the right to rely upon her being fit and suitable for such work, and they were only required to use and treat her with reasonable care; but that if, after having tried her at such work, it became plainly manifest that she was unfitted for it, and that further use at such work would be injurious and endanger health and life, it was their duty to abstain from further use of her without notifying the plaintiff and obtaining his consent, and the defendants had no right to abuse her.</p>

<p>Prosecuting Attorney. — Recognizance Bond. — Judgment of Forfeiture.— Failure to Have Entered. — Official Bond. — Action wpon. — Liability of Surety. —-The State may not maintain an action on the official bond of a prosecuting attorney in case he neglects to cause a default and judgment of forfeiture to be taken and entered against a defendant and his recognizors upon the failure of the defendant to appear and answer a criminal charge preferred against him at the time specified in the recognizance, as there is no statute which in terms imposes this duty on that officer. In the absence of such a statute the sureties are not liable for what may have been a mere mistake or inadvertence.</p>

<p>Jtjby.— Vacancies. — Summoning Persons Outside Court Boom. — Befusal of the Court to Direct. — It is not error for the court to refuse to direct the sheriff to fill vacancies in the jury hy summoning persons outside of the court room.</p> <p>Deed. — By Insane Person. — How Avoided.- — -A deed of a person of unsound mind, made before office found, to one who has no knowledge of the grantor’s incapacity, is only voidable, and in order to avoid it, the consideration received must be tendered to the grantee.</p> <p>Same. — Mere Mental Weakness not Sufficient to Avoid. — Instruction.—Mere weakness of mind, impairing only the capacity to transact business prudently and judiciously, is not sufficient to avoid a deed in a case where there is not fraud; and an instruction to that effect is not erroneous.</p> <p>Judgment. — Jurisdiction.—Where there is jurisdiction of the subject and of the parties a judgment is not void, although there may be numerous errors in the record and proceedings.</p> <p>Same. — Collateral Attack. — Insanity.-—If a party seeks to avoid a judgment upon the ground that he was of unsound mind, he must assail the judgment directly, for it is not vulnerable upon a collateral attack.</p>

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

<p>Verdict. — Contradictory Answers to Interrogatories. — In -an action against an attorney to recover money collected by him, on notes placed in his hands for collection, which he failed to pay over on demand, the jury rendered a general verdict for the plaintiff, and also answered two interrogatories, as follows: “ 1. Did the plaintiff make a demand on the defendant for payment before the commencement of this suit?” Answer. "Yes.” “2. What was said when the demand was made?” Answer. “1 How soon can you make the collection ? ’ ” Defendant’s motion for judgment on the interrogatories was sustained.</p> <p>Held, in an action to review the judgment, that the answers to the interrogatories are contradictory, and that, therefore, judgment should have been rendered on the general verdict.</p> <p>Held, also, that the second interrogatory was improper, since it called for a statement of evidence and not of fact.</p> <p>Judgment. — Review of. — Motion for New Trial.— Overruling of. — Bill of Exceptions. — In an action to review a judgment, in order that the overruling of a motion for a new trial in the former case may be considered in the Supreme Court, the ruling must be saved by a bill of exceptions filed within the time allowed.</p>

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

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

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

<p>From the La Porte Circuit Court.</p>

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

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

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

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

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

<p>Practice. — Imperfect Record. — Failure to Incorporate Evidence. — Where the evidence is not in the record, and the record is not made up under the provisions of the statute, or the rules of the Supreme Court, in such a mode as to present the questions arising on the admission of evidence, or the rulings upon instructions, without the entire evidence, an appeal will not he sustained.</p>

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

<p>From the De Kalb Circuit Court.</p>

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

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

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

<p>Practice. — Sale of Beal Estate. — Action to Recover Commission. — Additional Parties. — Motion to Make. — Proper Overruling of. — In an action to recover a commission on the sale of real estate it was not error for the court to overrule the motion of the defendant, supported by affidavit, to make certain persons parties to the action, on the ground that said persons were each claiming that they had made a sale of the property mentioned in the complaint as the agent of the defendant, and were claiming a commission for such sale. The controversy between said persons and the defendant could not in any way affect the right of the plaintiff to recover, if the defendant, as alleged in the complaint, had employed him to sell the real estate at an agreed per cent., and he had, in fact, made the sale. Section 272, E. S. 1881, does not apply to such a ease.</p> <p>Judgment. — Recovery of Less Amount.— Who Can Not Complain of. — A defendant can not complain that the plaintiff recovered judgment for a less amount than he was entitled to, if entitled to anything. If an error was committed, the error was not prejudicial to the defendant.</p>

<p>Warranty. — Breach of. — Partners.—Damages.—Action.—Practice.—Where a steam boiler is sold with an express warranty to a firm composed of two partners, and there is a breach of the warranty after one of the members of the firm has sold his interest in the firm property to the other and retired from the firm, the remaining partner may maintain an action for the damages sustained because of such breach.</p> <p>Same. — Mill.—Destruction of by Boiler Explosion. — Mental Value. — Measure of Damages.— Witnesses. — Where a boiler sold with warranty explodes, the rental value of the mill, for which the boiler furnished the motive power, during the time it remained idle on account of such explosion, is an element of damages in an action for the breach of the warranty, and in ascertaining such value witnesses acquainted with the capacity of the mill and its daily work may be called.</p>

<p>Free Gravel Road. — Establishment of. — Covmty Commissioners. — Special Session. — The board of commissioners havepower to act at a special session, in the matter of the establishment of a free turnpike road.</p> <p>Same. — Appeal by Some Property Owners. — Effect of as to Others. — An appeal by some of those whose property would be affected by the establishment of a free turnpike road, from the order of the board of commissioners, in reference to the same, does not have the effect to stay or suspend pro- - ceedings as to those who did not appeal. Meehan v. Wiles, 93 Ind. 52, distinguished.</p> <p>Evidence. — Introduction of After Argument. — Discretion of Court. — Where after the close of the evidence, and the argument of counsel, the court permitted one of the parties to the action to introduce additional testimony, there is no available error, unless it is made to appear that the court abused the discretion it has in such a matter, to the detriment of the complaining party.</p> <p>Berkshire, J., dissents.</p>

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

<p>Marine Insurance. — Action on Policy. — Complaint.—Sufficiency of. — In an action on a marine insurance policy, by tbe terms of which the company is liable for any loss occasioned by fire, except when caused by explosion of boiler, and except as limited by certain warranties contained in the policy, a complaint which alleges that the loss was eaused by fire which was not caused by the explosion of any boiler, and alleges generally that the plaintiffs had performed all the conditions of the contract on their part, is sufficient.</p> <p>Same. — Conditions Precedent. — Pleading.—Under section 370, R, S. 1881, which applies to insurance policies the same as to other contracts, it is sufficient to allege generally the performance of conditions precedent in a policy of insurance.</p> <p>Same.— Warranties. — Pleading.—In an action on a policy of insurance the plaintiff is not required to negative in his complaint warranties and exceptions stated in the policy. If the loss is within a warranty or exception it is matter of defence, which must he pleaded affirmatively by the defendant.</p> <p>Same. — Express Covenants against Loss.— General Warranties by Insured.— Liability of Company. — Where a marine insurance policy contains an express covenant against loss occasioned to the steamer by fire, except when caused by explosion of boiler, and except as limited by warranties therein contained, such covenant is not modified by general warranties on the part of the insured that the insurer shall be free from “ loss or damage caused by the bursting of boilers, by the collapsing of flues, by the explosion of gunpowder,” etc., and the insurer is liable to the insured for all losses caused by fire, except fires caused by the explosion of boilers.</p> <p>Contract.— Construction of by Parties to. — The construction by the parties to a contract of the language employed therein should not be disregarded by the court.</p>

<p>Decedents’ Estates. — Administrator.—Judgment in Favor of. — Parol Evidence. — In a sait to set aside a judgment rendered in favor of an administrator against the estate he represented, parol evidence is not admissible to contradict the record and establish the fact that the estate was not indebted to the administrator at the time of the rendition of the judgment.</p> <p>Same. — Judgment in Famor of Administrator. — Validity of. — Where an administrator files a claim, in his own favor, against the estate he represents, and the record shows that the court appointed an attorney to represent the interests of the estate, and after investigation of the merits of the claim the attorney reported to the court an amount agreed upon to he allowed in settlement, and the court approved of such adjustment and allowed the claims to the amount agreed upon, the adjustment and allowance by the court bind the representatives of the estate, and are an adjudication as to the validity and amount in favor of such administrator, and is equally binding upon such administrator, and subsequent administrators of such estate, as would be the allowance of a claim in favor of a third party.</p>

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

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

<p>Marriage Contract. — Breach of. — Competency of Parties to Contract. — Allegation of. — In an action for the breach of a marriage contract the complaint need not aver that the parties were of marriageable age when the alleged contract was made, as the presumption is, as to all contracts, that the parties are competent to contract until the contrary is shown.</p> <p>Same. — Reciprocal Contract. — An allegation that “ the plaintiff and defendant, on the-day of-, agreed to marry one another,” is a sufficient averment of a mutual promise to marry.</p> <p>Same. — Character of Plaintiff. — Evidence.—Where the defendant is permitted to testify to having heard rumors and reports which were calculated to bring the plaintiff into disrepute before the jury, the plaintiff may introduce evidence of her good character for virtue, chastity, and honesty.</p> <p>Same. — Evidence.—Sufficiency of to Show Breach. — The defendant wrote to the plaintiff, informing her that he had heard reports derogatory to her character, and that he would not visit her until he had investigated them. A month or more elapsed after the receipt of this letter before the plaintiff commenced her suit, the parties in the meantime neither meeting nor communicating with each other.</p> <p>Meld, that a breach of the contract was shown.</p> <p>Same. — Declarations of Plaintiff. — Res Cesta. — The plaintiff asked a witness, called by her, the following question : “ What declaration, if any, did she [plaintiff] make in regard to her disappointment, and refusal of defendant to marry at the time she showed you the letter,” and the witness answered as follows: ' “ I was at her house on Saturday, after she received the letter introduced in evidence from defendant; she showed the letter to me, and asked me what she ought to do about it; William Coffman was along; she wanted to know wnat she had best do; I don’t think I gave her any advice; I don’t remember what she did say; she appeared to be somewhat troubled about it. She was not shedding tears, but she seemed like her mind was bothered.”</p> <p>Held, that the question was improper, as it assumed that the defendant had refused to marry the plaintiff.</p> <p>Held, also, that the declarations contained in the answer, made two days after the receipt of the letter, and in the absence of the defendant, were incompetent, since they formed no part of the res gestee.</p> <p>Bill of Exceptions. — Evidence.—Concluding Statement as to. — A statement at the close of a bill of exceptions, that “ This was all the evidence introduced upon the trial of said cause,” instead of the usual formal statement, “ This is all the evidence given in the cause,” is sufficient to identify the evidence, the word “ introduced,” as used, being the equivalent of the word “ give.”</p> <p>Practice. — Motion for New Trial. —Erroneous Instructions. — How Assigned as Error. — A motion for a new trial assigning as cause that the court erred in refusing to give instructions requested, must designate specifically the instructions relied upon. Where this is not done no question as to the propriety of the instructions is presented to the Supreme Court.</p>

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

<p>City. — Defective Sidewalk.— Injwy Gamed by.— Contributory Negligence.— Where a person goes upon a sidewalk of a public street which is known to be defective, but the defect is one which does not render the way impassable and necessarily dangerous, and while thereon, and using due care to avoid injury, sustains injuries caused by the defective sidewalk a recovery can not be defeated by the city on the ground that the plaintiff was guilty of contributory negligence.</p>

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

<p>Supreme Court. — Excessive Damages. — New Trial. — Practice.—The assignment, as a cause for a new trial, that the verdict is not sustained by sufficient evidence, presents no question to the Supreme Court as to the amount of the recovery. In order to present that question it must be assigned as cause for a new trial that the amount of recovery was too large.</p>

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

<p>Change oe Venue. — Rule of Cowt. — Affidavit.—Under a rule of court requiring all applications for a cliange of venue to be made by the “ second Tuesday of the term,” it was not error to deny an application for a change of venue on account of alleged undue influence, where the affidavit alleged that the undue influence was not discovered before the second Tuesday, but did not allege that it was not known on that day.</p> <p>Evidence. — Judgment.—Execution.—Record of Former Suit. — In an action by a judgment debtor against a sheriff to recover the possession of personal property levied on by virtue of an execution to satisfy the judgment, and claimed by the judgment debtor as exempt, the record of a former suit by a third person against the sheriff, involving the title to the same property after it was levied on by virtue of the execution, and of which the present plaintiff testified in the former action that such third person was the owner, is admissible in evidence in behalf of the defendant.</p> <p>Judgment. — Personal Property, — Sale of by Judgment Debtor. — Repurchase of.— Lien. — Exemption.—Where, after the sale of personal property by a judgment debtor, it is decided in an action between the purchaser and the sheriff, who holds an execution against the judgment debtor, that the property is subject to the lien, the judgment debtor bn repurchasing the property takes it subject to the lien, and is concluded by the judgment in the former case from setting up a claim to exemption.</p>

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

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