Volume 124 — Indiana Reports

<p>Township Trustee. — Settlement.—Appeal from County Commissioners. — A taxpayer who alleges that he is aggrieved by the action of the board of county commissioners in approving a report and settlement made by the sureties on the bond of a township trustee, can not appeal to the circuit court by filing an affidavit and appeal bond. In making settlements with township trustees, and in the examination and confirmation of their reports, county commissioners act, not judicially, but in a ministerial capacity, and the general right of appeal authorized by statute is applicable only to decisions of a judicial character.</p>

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

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

<p>Drainage. — Appeal.—Amendment of Petition. — Upon an appeal in a drainage proceeding, begun before the board of commissioners, it is in the discretion of the circuit court to permit an amendment of the petition.</p> <p>Same. — Location of Pitch. — Description.—Under the statute, section 4286, R. S. 1881, a particular description of the location of the proposed ditch, or drain, is not required. The petition is sufficient if it contains a general description of the proposed starting point, route, and terminus of the ditch.</p> <p>Same. — Covmiy Commissioners.— Remonstrance. — Appeal. — All grievances growing out of the establishment and construction of a public ditch should be presented to the board of commissioners, and settled in that tribunal. The aggrieved parties may remonstrate before the board against the report of the viewers, or reviewers, and where, having opportunity to file their remonstrances, they fail to do so, the circuit court may properly refuse to allow them to be filed on appeal.</p> <p>Same. — Appeal.—Motion for Judgment. — Where, on such appeal, there is no issue for trial, it is not error for the court, the question of the jurisdiction of the board having been disposed of, to sustain the appellee’s motion for judgment establishing the ditch, on the petition, report of viewers, etc.</p>

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

<p>Will. — Construction.—Estate During Widowhood. — A testator devised to his wife and heirs, “ for her to dispose of as she sees best * * * the tract of land now living on * * * during the time she lives a widow, or in my name. Then said land is to be divided equally amongst the present heirs of David Rupert and Mary, his wife, or the proceeds of the same, as the case may be.”</p> <p>.Held, also, that the widow having remarried without disposing of said estate, the estate ceased upon said second marriage, and that the land remained for distribution among the children of the appellee and the testator in accordance with the terms of the will.</p>

<p>Attorney’s Fee. — Promissory Note. — Action on. — The sum of $60 is not an unreasonable attorney’s fee in a suit upon a promissory note where tender is made of $510 and after trial the sum of $968.49 is recovered.. Contract. — Parol Evidence to Vary. — Parol evidence is inadmissible to prove that a written contract is different from what the writing states it to be.</p> <p>Same.— Contractual Consideration. — Parol Evidence. — Where the consideration of a contract is contractual it can not be varied, changed or modified by parol evidence.</p>

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

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

<p>Quieting Titee. — Disclaimer.—Pleading.—In an action to quiet title it is not error to overrule a demurrer to an answer by the defendants, who are not in possession, which disclaims any interest in the real estate in controversy and alleges that the defendants had never claimed any interest in the land.</p> <p>Mortgage. — Permanent Improvements by Mortgagee. — Recovery for. — Repairs. —Where one goes into possession of land under a deed absolute upon its face, but which is, in fact, a mortgage, believing, in good faith, that he is the owner of the land, and makes permanent improvements thereon, he is not entitled to recover for the value of the improvements, but may recover for the value of repairs.</p>

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

<p>Attorney’s Fees.— Unconditional Promise to Pay.— Validity of. — An unconditional promise to pay attorney’s fees is valid.</p> <p>Same.— Value of Attorney’s Services. — Proof.—Competency of. — In an action on a promissory note containing an unconditional promise to pay attorney’s fees where the complaint avers that a reasonable fee is fifty dollars, it is competent to prove the value of the attorney’s services, although there is no direct averment in the complaint that an attorney was employed.</p> <p>Same. — Evidence.—-It was not error to refuse to permit the defendant to prove that the plaintiff was an attorney, and competent to prosecute the action himself. A man is not bound to be his own attorney.</p> <p>Same. — Agreement by Attorney to Receive One-Fourth of. — Mitigation of Damages. — Where the defendant offered to prove in mitigation of damages that the attorney employed by the plaintiff had agreed to receive one-fourth of the attorney’s fees, it was error to reject such offered evidence. The holder of a note can recover only what he agrees to pay his attorneys.</p>

<p>Contract. — Acceptance of Order. — Consideration.—One Myers delivered to Coombs & Co. an order duly signed by him, and addressed to the Olds Wagon Works, and accepted by it, substantially as follows. “From this date you will please credit all shipments I may make to you to Coombs & Co., subject to settlement with them by note on ninety days’ time, except doubletrees, etc., bought of me for cash, which I will collect.”</p> <p>Held, that an indebtedness due from Myers to C. & Co., and the agreement of the latter to make further advances to the former, were an adequate consideration for tlie execution of the order as between the immediate parties thereto; and the agreement of Myers to ship, and his subsequent shipment|to, and the receipt of material by, the Olds Wagon Works, were an adequate consideration for the acceptance of the order by the latter, and for the agreement to credit and pay the amount of such shipments to Coombs & Co.</p> <p>Same. — General Verdict. — Issues.—M., in the suit by Coombs & Co. against the Olds Wagon Works (the acceptor of the order), having been made a party merely to answer to his indebtedness to Coombs & Co., and no issue having been joined between M. and the plaintiffs, a general verdict assessing the damages of the plaintiffs at a specified sum was good.</p> <p>Same. — Interpretation.—Ambiguity.—How Removed. — In interpreting a contract the language employed therein is the exclusive medium through which to ascertain its meaning; but in case the terms employed are ambiguous, or susceptible of more than one meaning, the situation of the parties and the circumstances under which the contract was made may be considered.</p>

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

<p>Township. — Purchase by Trustees of School Land for Joint Graded School.— Statute. — The statute, section 4446, R. S. 1881, empowers the trustees of two or more school townships to organize a joint graded school, and to purchase suitable real estate to be used for that purpose. The trustees are the sole judges of the right to purchase property of this character, and in the absence of fraud between the trustees and the seller their decision is conclusive.</p> <p>Same. — Propriety of Purchase. — Action upon Note for Purchase-Money. — The advisability or necessity of the school, or the question as to whether the property purchased was suitable or proper, can not be inquired into in an action upon a note given for the purchase-money.</p> <p>Same. — Parties.—In an action upon the note for the purchase-money, which was made payable to the trustees of the Moorefield Lodge of Masons, the vendors of cthe real estate, and by them endorsed and assigned to the plaintiff, neither the trustees nor the grand lodge is a necessary party defendant.</p> <p>Same. — Fraternal Order. — Knowledge of Members not Knowledge of Order. — ■ The knowledge of a member of a fraternal order of any fact is not the knowledge of the order; and the charge of fraudulent knowledge of the order is not established by the fraudulent knowledge or actions of a member of it.</p> <p>Same. — Fraudulent Purpose of Trustee. — Sale by Vendor in Good Faith. — Recovery on Note for Purchase-Money. — Although the trustee had a fraudulent purpose in purchasing the property, if the sale was made by the vendor in good faith, and taken possession of by the township and retained, a recovery on the note for the purchase-money can not be defeated.</p>

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

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

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

<p>Master and Servant. — Railroad.—Action against for Wrongfully Causing Death of Employee. — Complaint.—Sufficiency.—A complaint by an administrator in an action against a railroad company for negligently causing the death of his decedent while he was engaged in repairing a tunnel on the line of the road, alleged the insufficiency of the braces of the tunnel, and its dangerous condition, and that it had long remained in such condition, the defendant knowingly allowing it to become and remain so; that the defendant, well knowing the dangerous condition of the tunnel, and that its condition was not visible by ordinary observation, ordered the deceased, who was free from fault, without warning him of the character or condition of the supports, braces or walls, or of the danger, to work at the place where he was injured and killed, and exposed him to the perils and hazards of falling timbers, stones and dirt; that the deceased was wholly without fault, and wholly ignorant of the condition or character of the tunnel, rocks, dirt and supports.’</p> <p>Held,, that the complaint was not subject to the objection that it appeared therefrom that the deceased assumed the risk of the necessarily hazardous work, nor to the objection that it did not show that the danger could not have been known to the deceased by the use of ordinary diligence and care.</p> <p>Same. — Special Verdict. — Judgment for Flainiiff. — The jury in their special verdict found facts sufficient to show that the railroad company did not . provide a safe place for the deceased to work; that the foreman, entrusted with the superintendency of the work, and acting for the master, had full knowledge of the dangerous character of the tunnel and the liability of the rock to fall and kill the deceased; that he might, with reasonable diligence, have guarded- against the danger; that the death of the deceased was caused hy the foreman’s negligence, and that the deceased was without fault, and had no knowledge of the dangerous condition of the tunnel, or the crack in the rock, or its liability to fall and injure him.</p> <p>Held, that the plaintiff was entitled to judgment.</p> <p>Same. — Respondeat Superior. — An employer must use ordinary care and reasonable skill to make safe the place where he requires his employees to work. This duty the employer can not delegate, and he can not escape responsibility by delegating the duty of looking after and providing a safe place to any other person. If the employer delegates such duty to another, such person acts for the employer, and if such duty is negligently performed the employer is responsible.</p> <p>Same. — Foreman in Charge of Work — Fellow-Servants.—A foreman entrusted with exclusive control of work, and of providing a safe place for employees to work, acts in the discharge of such duty for the master, and is not a fellow-servant of one injured through his negligence in failing to provide a safe place for him to work, and the railroad company is liable.</p>

<p>County Clerk. — Ministerial Duty. — Statute Defining. — Section 1213, R. S. 1881, provides that where an issue involving the question of suretyship is made between defendants jointly sued, if the issue be found in favor of the surety, the court shall make an order directing the sheriff to levy the execution first upon and exhaust the property of the principal before a levy shall be made upon the property of the surety, “and the clerk shall endorse a memorandum of the order upon the execution.”</p> <p>Same. — Execution.—Failure to Endorse Order to Exhaust Principal’s Property. —Liability for Neglect. — The complaint in an action by a surety against the clerk of the court and the sureties on his official bond, based upon the above statute, alleged that the clerk of the court failed to set out the order of the court in the execution directing the sheriff to levy the execution first upon the property of the principal and to endorse a memorandum of the order thereon as required, and that in consequence the property of the plaintiff instead of that of the principal was sold to satisfy the execution, which to prevent further loss he was required to redeem. It further alleged the possession by the principals, at' the time the execution was issued, of sufficient property to have satisfied the execution, but that “ soon after the levy and sale of the property of the surety they became insolvent, and have continued so.”</p> <p>Held, that the complaint is insufficient, and demurrable, since it fails to allege such a state of facts as to show affirmatively that the plaintiff suffered loss and that the loss was occasioned by the officer, it not appearing by the averments of the complaint of what character the property was, or whether or not it was subject to execution, for, if so, the plaintiff, subrogated to the rights of the judgment creditor, could have seized the property for his reimbursement.</p>

<p>Slander. — Express Malice. — Declarations of Defendant Tending to Show.— Admissibility. — In an action for slander the testimony of a witness tending to show that the defendant knew that the charges he made against the plaintiff were unfounded, is competent for the purpose of proving express malice.</p> <p>Same. — Fraudulent Conveyances by Defendant. — Evidence of. — At the time of the publishing of-slanderous words the plaintiff occupies the position of a creditor and may prove that certain fraudulent conveyances were made by the defendant.</p> <p>Same. — Defendant’s Financial Condition. — Proof that the defendant, after being threatened with an action for slander, made voluntary conveyances of his property, was competent for the purpose of showing the financial condition of the defendant.</p> <p>Same. — Impeachment of Witness. — The rule permitting a party to contradict his own witness applies only where the testimony is a surprise to the party calling him, and is prejudicial; and, hence, a witness called by the defendant having denied, in answer to a question, that he had sexual intercourse with the plaintiff, it was not competent to prove by other witnesses other declarations of the witness to the contrary.</p> <p>Same. — Evidence.—A witness for defendant testified that he had a conversation with the defendant in March, which the defendant denied, offering to prove that the conversation took place in November, and to state what was said.</p> <p>Held, no impeaching question having been asked the witness, that the testimony of defendant as to the conversation in November was incompetent.</p> <p>Same. — Specific Acts of Impropriety. — Specific acts of impropriety committed by the plaintiff long after slanderous words are spoken, are not competent evidence.</p>

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

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

<p>Conveyance. — Insane Person. — Action for Rescission. — Tender of Deed to be Signed. — Where one takes a conveyance from a person whom he knows to he of unsound mind, and refuses to rescind the contract and reconvey the land upon demand made, claiming it as his own, he will not be allowed, when suit is brought, to defeat the action by reason of its not being alleged in the complaint that a deed was tendered to him to sign at the time he refused to convey, and asserted title to the land.</p> <p>Same. — Complaint.—Sufficiency of. — In an action to rescind a contract for the sale of land, and to recover the same, where a complaint alleges that the defendant, for the fraudulent purpose of procuring a conveyance of the land, ingratiated himself into the confidence of an old, infirm,'and weak-minded lady, and that by feigning an affection for her, and by falsely representing to her that he was a man of means, he obtained the land, worth $4,000 lor $1,500, which by a condition in the mortgage could not be collected for ten years, fraud is sufficiently shown.</p>

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

<p>Real Estate. — Action to Recover. — Title by Possession. — Where a complaint to recover real estate alleges title in fee in the plaintiff, and the facts found in the special verdict show title through possession continued for the requisite period by the ancestor of the plaintiff’s grantor, and heirs, the allegation of the complaint is supported, a title in feeisshown. Same. — Title Traced to Common Source. — Where title is claimed through a common grantor, it is sufficient to trace it to that source.</p> <p>Same. — Election to Sue for Damages. — Condition Broken. — Where one elects to sue for damages and accepts judgment, he is precluded from entering for condition broken.</p>

<p>Insurance. — Policy.—Condition Avoiding. — “ Vacant or Unoccupied.” — The policy of insurance upon a dwelling-house was conditioned to be void if the house should become “vacant or unoccupied.” The tenant moved out of the building on the 26th day of March. After her removal the parties to whom the owner had previously rented it made certain repairs on the premises, intending to move into the house on the 1st day of April. On the 30th day of March, the day the repairs were completed, the prospective tenants put some hay into the loft of a stable on the premises, and buried some potatoes on the lot near the house. The dwelling was destroyed by fire on the 31st day of March. It was unoccupied when burned, and the only articles in it were some planes left after the completion of the repairs.</p> <p>Held, that the house was vacant within the meaning of the condition of the policy, and that the policy was void.</p>

<p>County Superintendent. — Special Bond Required by School Book Law.— Failure to Give Within Time Limited. — Rejection of Bond by County Commissioners. — Appeal.—On the 3d day of June, 1889, the plaintiff was elected county superintendent of schools of Knox county. On the 20th day of June, 1889, the board of- commissioners declared the office vacant, because of the failure of the plaintiff to file the special bond required by section 10 of the act of March 2d, 1889. The plaintiff presented the special bond required by statute on August 12th, 1889, but it was rejected by the board. The plaintiff appealed from the decision of the board refusing to accept the bond, to the circuit court.</p> <p>Held, that the rejection of the bond, since it operated to bring in question the plaintiff’s right to the office, which was declared vacant, was a judicial act, and that, therefore, an appeal lay. Board. etc.,Y. State, 61 Ind. 379, doubted and distinguished.</p> <p>Same.— Vacancy of Office. — Question as to, Judicial. — Decision of Board of Commissioners. — Appeal.—The question whether an office is or is .not vacant, is intrinsically a judicial one; and where the board of commissioners assumes to declare a legislative office vacant, it assumes to exercise judicial power, and an appeal will lie from the decision.</p> <p>Same.- — Special Bond.— When Must be Filed. — Statute.—Under section 10 of the act of 1889 all superintendents elected after the passage of the act must file a special bond within thirty days after their election; but superintendents elected prior to the taking effect of the statute are allowed thirty days to file such bond after the issuance of the Governor’s proclamation.</p> <p>Same. — Official Bond. — Filing of. — Statute, Directory. — Title to Office. — Non-Forfeiture of. — The statutes, however, requiring official bonds to be filed within a designated time are directory, and not mandatory. Unless the statute makes the filing of a bond within a limited time a condition precedent to the right to the office, the failure to file it within the time prescribed will not work a forfeiture of the right to the office, nor create a vacancy; and hence the mere failure by the superintendent elected after the passage of the act, and rightfully in office, to give the additional and special bond required, did not forfeit his title to the office, and authorize the office to be declared vacant.</p> <p>Same. — Ouster of Officer. — Judicial Power. — The power to oust an officer rightfully in office is essentially a judicial one, except where it is exercised by the appointing power.</p> <p>Same. — Official Bond. — Doubt as to Time of Filing. — Ouster Without Hearing. — Where an officer is rightfully in office, and there is a fair question as to whether the time within which he is directed to file a special bond in order to entitle him to continue in office begins to run from the date of his election, or upon the happening of a future event, and he files a bond within the time designated after such event does happen, a declaration that he has vacated the office, made without a hearing, does not oust him.</p>

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

<p>Cokpobation. — Preferred Claim for Wages. — Statute.— Laborer Within Meaning of. — The plaintiff was employed by the Broad Eipple Natural Gas Company to superintend the construction of its pipe lines. As superintendent he had full supervision of the digging of gas trenches, the laying of gas pipes, etc., with full authority to hire and discharge employees. The superintendency of the employees required considerable walking along the pipe lines, also, the testing of the wells made necessary the handling of wrenches and other tools for short periods of time, but aside from this he did no other physical or manual labor than was incident to his superintendency of the employees engaged in such work, . and such as he at times did voluntarily. The company became insolvent, and a receiver was appointed.</p> <p>Held, that the plaintiff was a laborer, within the meaning of the statute (Elliott’s Supp., section 1605), and was entitled to have his claim for wages declared a preferred claim, to be paid before a distribution of the assets among the general creditors.</p>

<p>Married Woman. — Suretyship. — Burden of Proof. — Where a married woman is sued upon her individual note, which is secured by a mortgage on her separate real estate, her ¡husband joining, the burden is upon her to show her suretyship, since it will not be presumed that she occupies the relation of surety, or guarantor, but that fact must be established by affirmative evidence.</p>

<p>Verdict. — Answers to Interrogatories. — If there is any reasonable hypothesis whereby the general verdict and the answers to interrogatories can be reconciled, the general verdict will be sustained.</p> <p>Insurance. — Action on Policy. — Notice of Loss. — Question of Fact, for Jury.— Verdict. — Judgment non Obstante Veredicto. — Where the policy of fire insurance sued on provides that the assured shall “ render a particular account of the loss ’’ as soon after the fire as possible, it is a question of fact, to be determined by the jury from all the evidence, whether the account of the loss was sent as soon as possible ; and, hence, in an action on a policy for the loss of lumber destroyed by fire, where the evidence showed that the assured was a very large manufacturing company, with many departments; that it was assured in many companies, and that the president of the company, whose duty it was to make out the detailed statement of the Joss, was absent a portion of the time between the date of the fire and proof of loss, the company, a general verdict, supported by evidence, having been returned for the assured, was not entitled to judgment non obstante veredicto merely because the particular account of the loss was not sent to the company until almost two months after the fire occurred.</p> <p>Same. — Lumber Destroyed.— Value. — Dow Determined. — Contract for Purchase of. — Inadmissibility of. — The value of the lumber destroyed must be determined by its market value at the time and place destroyed. A contract by the assured for the purchase of lumber to be cut in another •State, to be delivered in the future, is not admissible for the purpose of showing the market price of dry lumber destroyed.</p> <p>New Trial. — Excessive Damages. — Practice.—An assignment as a cause for a new trial that the damages assessed are excessive applies only to actions for tort, and is not applicable to actions on contract.</p>

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

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

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

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

<p>Verdict. — Answers to Interrogatories. — Judgment.—Where there is any reasonable hypothesis upon which the general verdict and the answers to interrogatories can be reconciled, the general verdict will control the judgment of the court.</p> <p>Corporation. — Railroad.—Contract for Construction of Roadway. — Director's Unauthorized Act. — A railroad company is not bound by a contract for the construction of the roadway made by one of its directors without authority; and the fact that the director owns a majority of the stock of the company does not alter the rule.</p> <p>Same.— Garnishment. — Estoppel.—The director of a railroad company, with whom the company had a contract for the construction of a portion of its roadway, without authority from the company, made in the company’s name a contract with certain contractors for the same portion of the roadway. After the contract was made the company was consolidated with another company. An action was brought upon an indebtedness claimed to be due from the contractors to the plaintiffs, and the corporations were garnisheed. There was no evidence that when the work was done under the contract by the principal defendants, either of the corporations had any knowledge of the unauthorized contract of the director. Although the corporations were garnisheed there was nothing to indicate that the contractors were looking to them for payment ; nor did the estimates, which showed no more than that the materials furnished and work done were for the building of the line of the road of the consolidated corporation, indicate that the contract was made with the company. Estimates were made by the director’s engineer to the chief engineer of the consolidated corporation, he supposing that they were for work done and material furnished by the director to the corporation under his contract.</p> <p>Held, that on the evidence the company was not estopped to deny the indebtedness claimed.</p>

<p>Highway. — New.—Removal of Fence. — Notice. — Injunction. — The statute (section 5030, R. S. 1881) requires the supervisor, when a public highway shall have been laid out through any inclosed land, to give sixty days’ notice in writing to the owner, or occupant, to remove the fence ; but such owner, or occupant, shall not be compelled to remove the fence between the 1st day of April and the 1st day of November. Hence, a a notice given on the 21st day of March is insufficient, the owner being entitled to sixty days’ notice, independent of the time intervening between the 1st day of April and the 1st day of November; and a supervisor proceeding upon such insufficient notice to remove the fence on the 1st of November, may be enjoined.</p>

<p>Supreme Court. — Questioning of Answer by Assignment of Error. — An answer can not be questioned for the first time in the Supreme Court.</p> <p>Bailroad. — Injury to Animals. — Construction of Cattle-Guards.— Opinion Eoidenee. — In an action to recover for the value of horses killed on the track of a railroad, the opinion of an expert witness that the construction of a cattle-guard under the track at the place where the horses entered upon it would render the use of the tracks dangerous, is inadmissible.</p> <p>Same. — Maintaining Fence. — Burden of Proof. — In such action the burden is upon the defendant to show affirmatively that the place where the animals entered was one that it could not fence without endangering the safety of its employees.</p>

<p>From the Huntingtoh Circuit Court,</p>

<p>Insurance. — Action cm. Policy. — Proof of Loss.— Waiver. — Where an insurance company, after being notified by the insured of the loss, obtains possession of the policy and refuses to pay or adjust the loss, and so notifies the insured, proof of loss is waived by the company, and it is es-topped to set up the failure to furnish proof as a breach of the policy.</p> <p>Same. — Compromise. — Fraud.—Settlement must be Rescinded before Suit.— Where a compromise is effected on an insurance policy, and a receipt in full executed, and the policy surrendered, while the settlement stands unrescinded, although it may have been obtained by fraud, no action can be maintained on it. The insured must at least rescind, or offer to rescind, and tender back the money received on the contract or settlement, before he can bring his suit.</p> <p>Interrogatories to Jury. — Signature of Foreman. — Where the general verdict is signed by the foreman, with the word “ foreman ” affixed to the name, and the interrogatories and answers are signed in the same name, but with the word “ foreman ” omitted, the objection can not be maintained that the interrogatories and answers are improperly signed.</p>

<p>Contract. — Statute of Frauds. — Debt of Another. — Promise to Pay as Part Consideration of Property Purchased. — A party who assumes and agrees to pay a debt of a third person as part payment of the consideration for property purchased does no more than promise to pay his own debt, and hence such promise is not within the statute of frauds.</p>

<p>Judgment. — Action to Set Aside. — Infancy.—Fraud.—The plaintiffs in their complaint to set aside for fraud two certain judgments theretofore rendered against them while they were minors, alleged that in an action in which it was averred that the plaintiffs’ grantor, to defraud his creditors, had conveyed certain real estate to the plaintiffs, a judgment was taken subjecting said real estate to sale to satisfy a judgment held against such grantor; that no guardian ad litem was appointed for them in such suit, or any appearance made by them therein; that the fact of their minority was concealed from the court, etc.; that the purchaser’s assignee subsequently brought his action to quiet title; that they were personally served with process; that before the return day of the summons a guardian ad litem was appointed for them, now almost twenty years of age, without their knowledge or consent; that in the trial at once had the guardian admitted the averments of the complaint, and judgment was rendered quieting title.</p> <p>Held, that while the action of the court in rendering judgment before the appearance day was irregular, fraud is not shown, it not appearing that by any imposition upon the court it was induced to dispose of the case before the appearance day, or that plaintiffs were prevented from appearing to the action upon that day, to which, it will be presumed, they would have been permitted to make an active defence, or otherwise have been able to protect their rights.</p>

<p>Promissory Note. — Consideration.—Parol Evidence to Show. — Pleading.— Answer. — Sufficiency of. — A husband and wife wishing to procure a home applied to the uncle of the,wife, a bachelor, who was on intimate terms with them, and from whom he had received many kindnesses, for money with which to make the cash payment. He first gave them one thousand dollars, which was applied as a cash payment on the land, two notes for seven hundred and fifty dollars each being given for the remainder of the purchase-money; and afterwards he gave them fifteen hundred dollars more with which to purchase said notes. It was agreed with the donor, when the money was delivered, that the principal should never be repaid, but that the donor should be paid an annuity equal to the interest on the sums donated during his natural life. To secure this promise on the part of the husband and wife a note for one thousand dollars was executed to the donor, and the notes purchased were also assigned to him. All the notes were secured by mortgages on the land. An'action was brought on the notes by the administrator after the donor’s death, and the facts as above were stated in the answer as a, defence.</p> <p>Held, that the answer states a good defence to the action; and as the money advanced did not constitute the consideration of the note, that evidence to prove the averments in the answer, such evidence going to the consideration of the notes, was admissible, and was not a violation of the rule prohibiting the admission of parol evidence to contradict a written instrument.</p>

<p>New Trial. — Newly Discovered Evidence. — Slander. —In an action for slander, a new trial should not be granted the defendant on the ground of newly-discovered evidence where the evidence alleged to have been discovered is of an act of unchastity committed long after the slanderous words were published.</p> <p>Same. — Newly discovered evidence, to authorize a new trial, should be of such a character as to render it probable that a second trial would result differently from the first.</p>

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

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

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

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

<p>Tax Sale . — Execution of Deed. — Injunction.—Tender.—Pleading.—In an action to enjoin the execution of a deed to the purchaser at a tax sale on account of irregularities in the sale which render it ineffectual to convey title, a paragraph of complaint which alleges that a tender was made of the amount due, but fails to allege that the tender was brought into court for the benefit of the purchaser, is bad.</p> <p>Same, — Purchaser’s IAm.— Void ¡Sale. — A tax sale, although made in violation of mandatory provisions of the statute, vests in the purchaser the lien of the State upon the land upon which the taxes were leviable, in all cases except where the sale was void because the land sold was not liable to taxation, or where the taxes had been paid, or the desctiption of the land was so imperfect as to fail to identify the land, or where the sale was made without authority of law.</p> <p>Same. — Sale Ineffectual to Convey Title, but Carrying Lien of State. — Redemption by Delinquent Taxpayer. — Statute.—Where a tax sale is ineffectual to convey title, but carries to the purchaser the lien of the State (Section 6488, E. S. 1881), the delinquent taxpayer can redeem from such sale only ’ upon the conditions prescribed by section 6466, R. S. 1881, relating to redemption from tax sales. Mitchell, C. J., dissents.</p>

<p>Railroad. — Fire from, Passing Engine. — Negligence.—Inability of Company.— Where a railway company negligently permits dry grass and other combustible matter to accumulate upon its right of way, and they are set on fire by passing engines, and the fire is negligently permitted to escape to the land of an adjoining owner, without negligence on his part, the company is liable.</p> <p>Same. — Contributory Negligence. — It is not contributory negligence for the adjacent owner to permit dry grass and stubble on his land which will spread fires negligently set by the railway company.</p> <p>Same. — Complaint.—Special Verdict. — Theory Proceeded on. — Judgment.— Where the complaint proceeds upon the theory that the plaintiff’s injury was caused by the negligence of the defendant in permitting rubbish, and other combustible matter, to accumulate on its right of way from which the fire escaped to the land of the plaintiff; while the verdiet rests upon the theory that the injury was occasioned by the negligence of the company in failing to provide its engines with proper sparkarresters, a judgment for the plaintiff based thereon will not be sustained.</p> <p>Same. — Special Verdict. — Finding of Negligence. — Mere Conclusion. — A special verdict should state facts, not conclusions. A finding that one of the parties has been guilty of negligence is a mere statement of a conclusion, and will not support a judgment.</p>

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

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

<p>Drainage. — Insufficient Description of Property Assessed. —Deformation.—A drainage commissioner, on a showing that in the original petition there was an insufficient description of the property upon which the assessment was levied, is entitled to have the description so corrected, or reformed, as to make the assessment effective.</p>

<p>Animals.— Vicious Dog. — Injuries by. — Complaint.—Sufficiency of. — A complaint in an action for injuries caused by defendant’s dog, which alleges that on and before a day named “ the defendant kept a dog which he well knew was of a fierce and dangerous nature, and improper to go at large, and accustomed to attack and bite mankind; yet the defendant wrongfully and negligently allowed said dog to go at large without being properly secured; that on said date said dog, without any fault on the part of the plaintiff, attacked and bit the plaintiff,” is not subject to the objection that it does not specifically allege that the defendant, at the time of the injury, was permitting his dog to run at large knowing his vicious disposition.</p> <p>Instructions to Jury. — To be Considered as a Whole. — Bill of Deceptions.— Instructions must be considered as a whole, and if sought to be reviewed in the Supreme Court they must be brought into the record by a bill of exceptions, or signed by the judge, and filed as part of the record.</p> <p>Evidence. — Admissibility.—Question of. — Improper Presentation. — No question is presented as to the admission of evidence where it does not appear from the record how the evidence was given — whether it was in response to a question or was volunteered — or what objection was made.</p>

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

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

<p>Easement. — Surface Water. — Rights of Adjacent Owners. — A land-owner, who hy means of ditches and drains concentrates surface water, and by that means carries it where it was not accustomed to flow, and discharges it on a lower land-owner, is liable for the payment of the damage caused thereby.</p> <p>¿Same. — Damages.—In such case the plaintiff is entitled only to compensatory damages.</p>

<p>Bill or Exchange. — Agreement Without Consideration to Release Acceptor.— Answer Alleging. — An agreement without consideration by the assignee of a bill of exchange to release the accommodation acceptor is void. In an action against the acceptor by the assignee an answer which sets up such an agreement is bad.</p>

<p>Real Estate. — Broker.—Commission. — Contract of Agency. — Construction of. — A contract of agency for the sale of land provided for a broker’s commission of 5 per cent, on the amount of the consideration. It was further provided that “ If said real estate is transferred, or sold, outside of the influence or agency of said Leslie, or withdrawn from the market within twelve months from this date I agree to pay said Leslie a commission of 2 per cent. If a customer is introduced through the agency of said Leslie, and a sale is afterwards consummated with said customer I agree to pay the commission aforementioned, whether the time of this agreement shall have expired or not.”</p> <p>Held, that the principal had the right to withdraw his real estate from the market, or to sell it to a purchaser not furnished by the agent, in which case he would have been liable for a commission of 2 per cent.; but that having done neither, and having sold to a purchaser furnished by the agent after the expiration of a year, he was liable for the commission of 5 per cent., the contract being a continuing one until terminated in some manner provided for by the contract.</p>

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

<p>Master and Servant. — Injury to Employee in Gravel Pit. — Assumption of Pish — Where an employee at work in a gravel pit, while engaged in digging a bed of gravel from under a thin stratum of clay is injured by the falling of the clay, there can be no recovery from the master. The employee in such a case takes upon himself the dangers incident to the work, and is bound to know that when the earth is undermined it will fall in.</p>

<p>Easement. — Right of Way. — Grant of. — Ownership of Streams, Ele. — The grant of a right of way to a railroad company being the grant only of an easement, the owner of the fee remains the owner of springs, streams, and minerals. Subject to the use of the right of way, he may make all lawful use of the land.</p> <p>Same. — Parol Reservation of Water Right. — Statute of Frauds. — A parol agreement reserving to the grantor the right to use the water of a stream which runs across the land granted for the purpose of a road, is not void under the statute of frauds; the right to the water remaining in the grantor, he is, by the agreement, but confirmed in his existing legal right.</p>

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

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

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

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

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

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

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

<p>Criminal Law. — Renting Room for Gaming Purposes. — Emdence.—Statute. —It shall be sufficient evidence of the fact that a building or room was rented for the purpose of gaming if gaming is actually carried on therein with' the knowledge of the owner, or under such circumstances that he has good reason to believe that his room is being so used, and takes no reasonable steps to restrain the occupant from continuing the unlawful use. Section 2079, R. S. 1881. Ifence direct evidence to prove that there was a specific agreement or intent on the part of the lessor and his lessee at the time he leased the room that it was to be used for the purpose of gaming, is unnecessary.</p> <p>Same. — Burden of Proof — Statutory Presumption Affecting. — Constitutionality of Statute. — While statutes which undertake to make proof of certain facts absolute or conclusive of guilt are unconstitutional, those which merely declare statutory presumptions affecting the burden of proof, are valid.</p> <p>Same. — Emdence.—Competency of. — Any evidence which tends to prove that gaming is actually carried on in the room, and that the lessor knows, or has good reason to believe that it is being carried on and suffered by his lessee,is competent as tending to prove, or raise a presumption, that the room is rented for the purpose of gaming.</p> <p>Same. — Evidence that it was generally reputed that the room was kept as a gambling room, and that the lessee who had been indicted had pleaded guilty to the charge of keeping a room in which gambling was permitted while occupying the lessor’s room, was competent as tending to raise an inference that the lessor, who was engaged in business near by, in the same community with the lessee, knew of the facts.</p> <p>Same.— Use by Tenant of Room for Unlawful Purpose. — Remedy of Landlord.— The mere fact that a tenant uses premises for an unlawful purpose does not, of itself, avoid the lease: hut the landlord may apply to a court of equity to restrain the tenant and to avoid or forfeit the lease.</p>

<p>Cbiminal Law. — Forgery.—Indictment. — Forged Instrument.— When Need not be Set Out in Ucee Verba. — Where an instrument alleged to he forged is lost, destroyed, in the hands of the defendant, or its whereabouts are unknown to the grand jury returning the indictment, such instrument need not be set out m hae verba, but it is sufficient to set out the substance and describe the instrument, and state the reason why the grand jury are unable to set it out in kcso verba.</p> <p>Same. — Forged Instrument. — Seasons for not Setting out in Hcec Verba.— Statement of Disjunctively. — The statement of two reasons laid in the disjunctive why the forged instrument is not set out in hoec verba does not render the indictment bad, such averments not relating to the statement of the charge, or the definition of the offence.</p>

<p>Will. — Construction of. — Conditional Life-Estate. — Remainder Over in Fee to Lawful Heirs. — A testator devised land to his son during his natural life, declaring that upon the death of his son or upon his refusal to occupy or live on the farm, “ I will, devise and bequeath the same to the said Samuel M. Conger’s heirs.” Samuel M. Conger took possession of the farm, but afterwards conveyed it by warranty deed, and ceased to live upon it. This suit is by the children of Samuel M. Conger, who is still in life, their claim being that under the will of their grandfather the title vested in them, and that they became entitled to the possession when their father abandoned and conveyed away the land.</p> <p>Held, that the word “ heirs ” is to be construed to mean “ children,” and that upon the death of the testator the devisee took a life-estate in the land defeasible upon condition that he refused to live upon or occupy the estate, and that the will created a vested remainder over in fee to . the testator’s children, to take effect in possession upon the termination of the estate of the father.</p> <p>Held, also, that immediately upon the conveyance by their father the children were entitled to possession.</p> <p>Same.— Life-Estate.— Remainder. — Restraint wpon Alienation.— Where an estate for life, or years, is created with a reversion to the grantor, or a valid remainder over to designated persons, conditions imposing restrictions and qualifications upon the power to alienate or use the estate are valid.</p> <p>Same. — Power to Restrain Alienation. — Foundation of. — The foundation of the power to restrain alienation rests upon the fact that there remains, or is vested, in some one a valid remainder or reversion, whose estate in possession is contingent upon some event, which defeats the precedent estate, and who is entitled to take advantage of the prohibited act or use.</p> <p>Same.— Word “Heirs.” — Meaning of Term. — Rule in Shelley’s Case. — When it becomes manifest that the word “ heirs ” was used as a synonym for “ children,” or in some modified sense, the rule in Shelley’s case will not be applied to overturn the testator’s intention.</p>

<p>Bna, of Exceptions. — Failure of Judge to Sign Within Time Allowed. — A bill of exceptions signed by the judge and filed with the clerk is properly a part of the record, notwithstanding the failure of the judge to sign the bill which was presented at the proper time until the time allowed had expired.</p> <p>Master and Servant. — Injmy to Contractor’s Employees. — Liability of Principal. — One who lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed, except that it shall conform to a particular standard when completed, is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let.</p> <p>Same.-— Visible Bisk — Assumption of. — An employee injured by the caving in of a ditch which he is assisting to construct through a soil composed largely of sand and gravel, can not recover for such injury, since the liability of the trench to cave in, and the danger, are alike open to the observation of all parties.</p>

<p>Judgment.— Of Justice of Peace. — Duration of Lien.— The lien of a judgment rendered before a justice of the peace extends ten years from the date of the rendition of the judgment, and not ten years from the date-of filing the transcript of the judgment in the clerk’s office.</p>

<p>Criminal Law.— Kidnapping. — Statute.— Exceptions. — An indictment for kidnapping based upon section 1915, K. S. 1881, which defines the of-fence as follows: “ "Whoever kidnaps or forcibly or fraudulently carries off or decoys from his place of residence, or arrests or imprisons any person with the intention of having such person carried away from his place of residence unless it be in pursuance of the laws of this State or of the United States, is guilty of kidnapping,” etc., must in addition to alleging the unlawful and felonious character of the acts with which the defendant is charged negative the exceptions in the statute, and allege that the acts were not done in pursuance of the laws of this State or of the United States.</p> <p>Same. — Exception in Statute. — Averment in ‘ Negation of. — Insufficiency.—An averment in the indictment that the defendant carried away from her residence the person named, “ not then and there having established a claim upon her according to the laws of the State of Indiana or the United States,” is not the equivalent of that required by the statute.</p>

<p>Bbincipad and Sueety. — Gross- Complaint. — Sufficiency of. — Statute.—In an action upon a note and to foreclose a mortgage executed to secure it, a cross-complaint which alleges that the defendant executed the note and mortgage as the surety of the co-defendant and demands that the interest of the co-defendant he first sold before the sale of any of the property of the cross-complainant, is good under section 1212. R. S. 1881, relating to the rights of sureties.</p> <p>Same. — Assumption of Liability by Surety. — An answer to such cross-complaint which alleges that the cross-complainant agreed with the plaintiff and his co-defendant to pay and satisfy the note and mortgage, is good.</p> <p>Same. — Parol Negotiations. — Merger.—Where a contract has finally been reduced to writing, all previous parol negotiations are merged in the written contract. Where therefore land has been conveyed by warranty deed, a prior parol agreement to satisfy an encumbrance upon the land is ineffectual for any purp'ose as an agreement.</p> <p>Same. — Pleading.—Departure.—-In an action upon a promissory note where one of the defendants, a married woman, alleges her suretyship, a reply which attempts to show a liability upon a subsequent undertaking is a departure, and is bad.</p> <p>Same. — Change of Relative Position. — Where a surety for a valualle consideration agrees with the principal to pay the joint indebtedness, he thereby becomes the principal and the principal becomes his surety.</p> <p>Estopped.— Who May Take Advantage of. — One who insists upon the acts of another as working an estoppel, must show that he acted upon the same and was influenced thereby to do some act which would result in an injury if the other is permitted to gainsay or deny the truth of what he did.</p>

<p>Widow. — Expenses of Husband’s Last Sickness. — Liability.—Statute Construed. —Under section 2422, R. S. 1881, making the widow liable for the expenses of the last sickness of her husband, when the estate is set off to her on petition, a suit is not maintainable against the widow on a judgment rendered against the husband upon a note executed by him before his death for medical services. The widow is liable only for an unliquidated indebtedness created on account of the last sickness of the husband, and is not liable to suit on notes executed by her husband or the judgments rendered against him.</p>

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

<p>Corporation. — Subscription to Stock. — Articles of Association. — Acknowledgment. — Statutory Requirement. — Failure to Comply with. — Non-Liability of Subscriber. — The statute (section 3851, R. S. 1881) requires that the persons who desire to organize a corporation shall “ make, sign, and acknowledge, before some officer capable to take acknowledgment of deeds, a certificate, in writing,” etc. The mere signing of the articles of association is not sufficient to complete the obligation, but in order to make valid and effective articles of association against all who sign, all must acknowledge them as the statute requires. One who simply signs the articles of association without acknowledging them, as the law requires, does not become a stockholder, and is not bound by his subscription.</p>

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

<p>Speciad Finding. — Motion to Strike Out Parts of. — New Trial. — A motion to strike out parts oí a special finding is not authorized by any rule of practice. Where the court fails to find all the facts proven, or finds the facts contrary to the evidence, the remedy is by motion for a new trial.</p> <p>County Commissionebs. — Drainage Proceedings. — Appeal.—Remanding of Oause. — Where the appeal from the board of commissioners to the circuit court involves a particular matter embraced in one or more issues, it is the duty of the circuit court to try such matter de novo, and to render a final judgment thereon, after which the cause may be remanded to the board of commissioners for further proceedings in accordance with the judgment. Where, therefore, on appeal the questions for tidal are the utility of a ditch and the legality of the order establishing it, and the circuit court upon a trial de novo finds in favor of the petitioners on the question of utility, and in favor of the appellants as to the other question, it has the right to remand the cause to the board, with directions to proceed according to'its judgment.</p>

<p>Fbadduleno: Conveyance. — Husband and Wife. — Title to Property Transferred. — Evidence.—A wife brought an action against a constable and the creditors of her husband to recover the possession of personal property taken under execution against the husband. The theory of the defendants was that any title which the plaintiff had to the property was acquired through her husband in fraud of his creditors.</p> <p>Held, that it was competent for the defendants to prove that a certain mare — part of the property levied upon — was kept in a stable which was under the control of the husband as tenant.</p> <p>Same. — Husband and Wife. — Loan.— Promissory Note for. — Preference of Wife. — From whatever source the wife acquired money, so that its acquisition was not tainted with bad faith, she had a right to loan it to her husband and take his promissory note therefor; and, when in failing circumstances, he had a right to prefer her to the exclusion of other creditors.</p> <p>Same. — Civil Action. — Evidence.—Preponderance.—In a civil action, whenever the plaintiff has a preponderance of evidence in his favor as to any fact as to which he has the onus, he is entitled to have that fact found in his favor.</p>

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

<p>Master and Servant. — Assumption of Risk. — Pleading. — An employee can not reebver from the employer for an injury produced by some cause incident to the nature of his services, and the master is not responsible for the known risks incident to the service in which the servant engages. In such a case, in order to make a good complaint, it must be averred that the plaintiff had no knowledge of the danger. An allegation that the plaintiff was free from fault does not take the place of averments showing that the risk was not one knowingly assumed as an incident of his service.</p> <p>.Pleading. — Paragraph of Complaint. — Questioning of by Assignment of Error.— An attack upon one of several paragraphs of a complaint made for the first time in the assignment of errors will be unavailing, even though the paragraph assailed may be radically defective.</p>

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

<p>Pbincepad and Surety. — Judgmentnot Disclosing Suretyship. — Subrogation.—A judgment was rendered against S. and H. before a justice of the peace and a lien obtained upon the real estate by the filing of a transcript. S. afterwards mortgaged the land to Y. to secure a debt. The mortgage was foreclosed, Y. becoming the purchaser at the sheriff’s sale. The judgment obtained against S. and H. did not disclose H.’s suretyship, and Y. had no knowledge that he was surety. H. having paid the judgment after the mortgage was given, sought to have himself declared a surety and subrogated to the lien of the judgment creditor.</p> <p>Be Id, that as against Y., to whom the mortgage was given after the rendition of the judgment and before its payment, he is not entitled to subrogation.</p>

<p>Convict. — Parole.—Violation of Conditions. — Pardon.—Credit for Good Conduct. — Pelease.—Prisoner When Entitled to. — On the 25th of May, 1885, the appellant was sentenced to imprisonment for a term of five years. On the 17th of March, 1888, he was released from imprisonment on parole, hut was recommitted to prison October 21st, 1889, at the command of the Governor, for a violation of the terms of the parole. Under the act allowing convicts good time the prisoner would have been entitled to his release on December 12th, 1889.</p> <p>Held, that the parole by the Governor did not have the effect of an unconditional pardon, but was a mere parole, and that upon a violation of its conditions, which the prisoner had accepted, and which made the Governor the sole judge of the breach of the parole, the Governor had the power to order his recommitment to prison.</p> <p>Held, also, that under section 1, Acts 1883 (Elliott’s Supp., section 2026), allowing convicts credit for good time, the prisoner was not entitled to credit for good time during his absence on parole.</p> <p>Held, also, that the prisoner was entitled to his discharge at the expiration of the time for which his sentence ran, less the time for which he was entitled to credit as good time earned, although for a part of the time covered by the sentence he was absent on parole, the conditions of which he violated.</p>

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

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

<p>Poor Person. — Application to be Admitted to Prosecute. — Refusal.—Discretion of Court. — It is only where there is a clear case of abuse of discretion on the part of the trial court in refusing an application to be admitted to prosecute an action as a poor person that its judgment will be'reversed.</p> <p>Same. — Non-Resident.—Cost-Bond.—Where such an application is denied a non-resident it is not error, upon the refusal of the plaintiff to file the bond for costs required by the statute (section 589, R. S. 1881), without any additional showing as to the claim, or inability to give the bond, to dismiss the complaint.</p>

<p>Tax Sale. — Foreclosure of Tax Lien. — Costs.—Liability of County. — Where an action is brought in the name of the State, on the relation of the prosecuting attorney, to foreclose the lien of the State for taxes (Elliott’s Supp., section 2147), and a sum sufficient is not realized from the sale of the real estate to pay the costs due the officers of the court in consequence of the proceeding, the county in which the land is listed is not liable in its corporate capacity for the balance of such costs.</p>

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

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

<p>Railboad. — Injury to Animals where Company is not Required to Fence. — Non-liability. — A railroad company is not liable for injuries to animals that enter upon its track at places where to maintain fences would interfere with the discharge of its duty to the public, or with the rights of the public in the use of the highway, or in doing business with the company, nor at any place where fences and connecting cattle-guards would make the running and handling of trains, or the necessary and proper switching of cars, more hazardous to its employees. Where animals enter upon railroad grounds at such places and are killed within limits that can not be and are not required to be fenced, the company is not liable.</p> <p>Same. — Railroad companies can not be required to erect and maintain fences along uninclosed and unimproved lands, nor in the platted portions of cities, towns and villages, but they are, nevertheless, liable for injury to animals that enter upon their tracks at such places, in case the track was not,but might have been, securely fenced without interfering with the discharge of its duty to the public, or without increasing the danger to its employees in the discharge of their duties.</p> <p>Same. — Maintenance of Cattle-Guards. — Opinion Evidence. — Inadmissibility of. —It was not error to exclude the evidence of a witness whose opinion was asked as to whether or not a cattle-guard could have^been maintained at a particular place without increasing the danger to the defendant’s trainmen. That was a conclusion for the jury to draw from all the evidence in the case.</p>

<p>Replevin. — Complaint.—Sufficiency of.— Under section 1266, R. S. 1881, authorizing actions of replevin for possession of personal property, a complaint which alleges that the plaintiffs are the owners of the property, and entitled to the possession, and that the defendant has possession without right, and unlawfully detains the same from the owner, is sufficient to entitle the plaintiffs to maintain an action for possession.</p> <p>Same. — Title.—The complaint is sufficient to try the title to the property without the averment required by section 1267, R. S. 1881, that the property was not seized under an execution, or, if so seized, that it was. exempt.</p>

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

<p>Pbactice. — Motions to Strike Out Pleadings. — Bill of Exceptions. — Motions to strike out pleadings and to separate and number paragraphs of pleading, and the rulings thereon, must be brought into the record by a proper bill of exceptions or be made a part of the record by order of the court.</p>

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

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

<p>Evidence. — Testimony by Comparison of Signature. — Non-Expert Witnesses.— Cross-Examination.- — Where the genuineness of a signature to a bond in suit is in dispute, papers not in evidence in the cause nor admitted to be genuine can not be used for making comparisons between the signatures thereto and the signature whose genuineness is disputed, and it is not error to refuse to allow the plaintiff to cross-examine the defendant’s witnesses, who are not experts, and who have not referred to the papers in their direct examination, with reference to the genuineness of the signatures to such papers.</p> <p>Sadie. — Microscopic Enlargement of Signature. — Inadmissibility of.- — -It is not error to refuse to submit to the jury for inspection a microscopic enlargement of a disputed signature, where the original is in court and where it is not proposed'to compare it with enlarged copies of signatures admitted to be genuine.</p> <p>Same. — Jury.—Incompetency of Testimony. — A witness, shown to be acquainted with another’s handwriting, may refer to the papers in his possession known to be in the writing of another, for the purpose of refreshing his memory before testifying, but such papers, the signatures to which not having been admitted to be genuine, are not competent testimony to go to the jury.</p>

<p>Animals. — Impounding of by Supervisor. — Compensation for Care and Feed.— A supervisor who takes up and impounds sheep which have escaped from the enclosure of the owner, can not recover for feeding and caring for them, where the owner immediately makes diligent search for them. Such animals can not be considered as running at large within the meaning of the statute (section 2637, E>. S. 1881, et seq.).</p>

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

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

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

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

<p>Oeeice and Oeeiceb. — Executive Appointment Before Vacancy. — Smrender of Office by Incumbent. — An appointment made by the Governor to an office rightfully held at the time of the appointment by an incumbent, whose term has not expired, is void. The surrender of the office to the appointee by such incumbent does not validate his void appointment, nor can any future act of the Governor validate such appointment.</p> <p>SAME. — Chief of Bureau of Statistics. — Certificate of Election by Legislature.— Governor’s Commission. — The General Assembly, assuming to divest the Governor of the power to appoint the chief of the bureau of statistics, in contravention of the Constitution, itself elected such officer. Upon his election, a certificate thereof having been presented to the Governor, the Governor issued to him a commission in which was recited the nature of his title, and that he was commissioned as the elect of the General Assembly. It further appeared by the records of the executive office that the commission was issued because of the election by the General Assembly.</p> <p>Held, that the issuing of the certificate was not the exercise of the appointing power, and conferred no title to the office.</p> <p>Same. — Beeords of Governor’s Office. — Evidence.—The records of the Governor’s office mentioned above are competent evidence in a suit by a subsequent appointee of the Governor contesting the right of such person commissioned by the Governor to hold the office.</p> <p>Same. — Appointee of Legislature under Void Election. — Governor’s Commission. —Effect of. — A commission issued by the Governor to an appointee of the Legislature under a void election, which recites that it is issued because of such election, can not be given the effect of an executive appointment upon the theory that all persons being presumed to know the law, the Governor knew that the sole power of appointment was possessed by him, and not by the Legislature, at the time of the issuing of the commission.</p> <p>Same. — A commission by the Governor to an officer, which recites that the person commissioned derives his claim of title because of an election by the Legislature, and is commissioned because thereof, is conclusive that such person is not the Governor’s appointee.</p> <p>Mitchell, C. J., and Elliott, J., dissent.</p>

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

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

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

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

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

<p>School Lahd. — Purchase.—Forfeiture of Contract. — Re-Sale. — Outstanding Lien. — Tenants in Common. A., the assignee of a certificate of purchase of school lands sold in compliance with section 4345, R. S. 1881, occupied the land until his death. At his death his children inherited the land as tenants in common, subject, by the terms of the will, to the widow’s life-estate. The interest instalments remaining unpaid after the death of the widow, the land was resold under section 4347, R. S. 1881, and B. became the purchaser.</p> <p>Held, that B., who was the owner, when the sale was made, of an undivided interest by purchase from one of the children, could not acquire title by purchase at such sale against the owner of an undivided interest by purchase from another of the children. Elston v. Piggott, 94 Ind. 14, distinguished.</p> <p>Same. — Forfeiture.—Effect of. — Surplus.—A forfeiture, under section 4347, K. S. 1881, upon the failure of the purchaser of school lands to make payments, does not divest the title of the purchaser to the real estate, but simply authorizes the State to sell the real estate for its own reimbursement, the surplus going to the purchaser.</p>

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

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

<p>Pbbadhtq. — Notice by Publication. — General Appearance. — Amended Complaint. — Where a defendant, who has been notified by publication, enters a general appearance, the trial court may permit the filing of an amended complaint which relates to the same transaction and sets up substantially the same facts embraced in the original complaint.</p> <p>Same. — Appearance.—Due Process of Law. — Where a notice, whatever its character, brings a defendant into court, secures an appearance and gives an adequate opportunity to the defendant to be heard, there is due process of law, and objections are unavailing.</p> <p>Same. — Action for Damages. — Fraudulent Representations as to Value of Stock. — Complaint.—Sufficiency of Against Demurrer. — A. complaint alleged that the plaintiff exchanged land with the defendant for shares of the capital stock of a corporation of which the defendant was president; that the defendant knew the financial condition of the corporation and the value of its capital stock; that for the purpose of defrauding the plaintiff, and to induce him to accept the stock, .the defendant represented that the financial condition of the corporation was good, and that its capital stock was of par value; that for the purpose of preventing the plaintiff from ascertaining the condition of the corporation and the value of its capital stock, the defendant fraudulently requested the plaintiff to make no inquiries as to the financial condition of the company, or as to the value of its capital stock, for the reason that he did not want other stockholders to know that he was selling his stock; that the plaintiff, relying upon the representations of the defendant, exchanged his land for the stock; that the defendant knew at the time of making the representations that the corporation was insolvent and its capital stock worthless.</p> <p>Held, that the complaint states a cause of action for damages caused by fraudulent representations, and is good against demurrer.</p> <p>Same. — Measure of Damages. — Complaint.—The measure of damages is the difference between the actual value of the corporate stock and its value had it been as represented by the defendant, and not the value of the ' land exchanged for the stock; and hence the complaiqt is not bad for failing to state specifically the value of the land exchanged for the stock.</p> <p>Same. — Facts Pleaded by way of Recital. — Demurrer.—Facts must be pleaded directly and positively, and it avails nothing as against a demurrer to plead them by way of recital.</p> <p>Contract. — Rescission.—Retention of Goods. — Damages.—While a party can not sue for the rescission of a contract while retaining the goods received under it, he may retain the goods and maintain an action for damages for fraudulent representations.</p> <p>Same. — Rescission.—Election of Remedies. — Amendment of Complaint. — Where no election of remedies is compelled by the adverse party, and nothing more is done than to file a complaint for rescission, and in the same proceeding so amend it as to make it a complaint for damages, there is no such act or conduct as concludes the plaintiff.</p> <p>Vendor and Purchaser. — Fraud on Part of Vendee.— Vendor’s Lien.— Where a vendee fraudulently induces a vendor to accept in payment of the purchase-money property that is worthless or of less value than that represented, the lien is not waived.</p>

<p>Mobtgage. — Acquisition of to Perfect Title. — Endorser and Endorsee. — Foreclosure.- — Estoppel.-—A party who acquires a mortgage for the purpose of perfecting a title for which he has previously bargained does not occupy the position of an ordinary endorsee. He occupies no better position than his assignors, and if their acts and representations worked an estoppel against them the estoppel operates against the assignees.</p> <p>Same. — Representations Whereby Another is Induced to Change His Position.— Estoppel. — If a party who holds a mortgage declares it to be invalid or agrees not to enforce it, or makes representations or does acts whereby another is induced to change his position and expend money, he is estopped by such representations and acts, whether fraudulent or not, to foreclose the mortgage.</p> <p>Estoppel. — Representations.— Subsequent Penial. — It is not necessary in order to create an estoppel that the person who makes the representations upon which another acts, should, at the time of making them, intend to defraud the person to whom they were made, for the fraud consists in subsequently attempting to gainsay or deny the representations to the injury of the persons who acted upon them.</p>

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

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