Volume 125 — Indiana Reports

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

<p>Pleading. — Action .for Partition. — Sufficiency of Answer. — Advancements.— Purchaser from, Heir. — Decedent s’ Estates. — In a suit for partition an answer is good which avers that the land in controversy belonged to A.; that during his lifetime he made certain advancements to his heirs; that after his death there was a settlement between his heirs, and the said real estate was assigned to B., a daughter of A., as her share in her father’s estate ; that the plaintiffs in the partition suit are the grandchildren of A., being the children of C., a deceased daughter of A.; that the plaintiffs and their mother had been advanced to their full share in the estate of said A., and had no interest in said real estate; that the defendant purchased said real estate of B., A.’s said daughter, and her husband, in good faith, and for its full value, without notice that the plaintiffs had, or claimed to have, any interest in or title to the said real estate.</p> <p>Same. — Partial Reply. — Demurrer.—A reply to the foregoing answer is bad which alleges that the said land was devised to the plaintiffs by the will of the ancestor, and therefore can not be treated as an advancement. The reply, while purporting to be a reply to the whole answer, in no way seeks to deny or avoid the advancement alleged in the answer to have been made to the mother of the plaintiffs in her lifetime, nor does it deny the allegation of the answer as to the division made after the death of the ancestor, by which the property in controversy was given to the grantor of the defendant as her share in her father’s estate. At most, the reply can only be said to be a partial reply, when it purports to be a reply to the whole answer, and is, therefore, bad, and the demurrer was properly sustained to the same.</p> <p>Advancements. — Purchaser from Heir.— What he may Show as to Advancements. — A purchaser from an heir may set up advancements to the other heirs. He stands in the same relation to the estate as did the heir; he receives whatever' interest the heir has in the estate. If the heir from whom he purchases has been advanced, that fact may be shown to reduce the interest of the heir, and likewise reduce the interest received by the purchaser. When the purchaser alleges that she purchased of the heir all of the real estate described in the complaint, in good faith, and for a valuable consideration, she has the right to allege and prove such facts as establish the title of the heir from whom she purchased to all of the real estate.</p>

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

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

<p>Dedication.— What Does Not Constitute. — Streets and Alleys. — Railroad.— Abutting Property Owner. — Injunction.—Where a railroad company desired to have a portion of an alley vacated in order to build a passenger depot, and presented a petition to the common council offering to donate to the city a certain strip of ground to be used as a street or alley in consideration of the vacation of the said alley, and the city, through its proper officers, rejected the proposition of exchange by failing to act thereon, but assessed the benefits to the company growing out of the vacation of the said alley at a certain sum, which sum was paid by the company into the city treasury, and afterwards the company, for the purpose of making a convenient and necessary way of approach to, and egress from, its passenger depot, curbed and paved the strip of ground which it had proposed to donate to the city, and constructed convenient and necessary gates, all of which was done at its own expense, the said strip of ground did not become a public street of the city, subject to a right of all the citizens to use it as a public thoroughfare. An abutting property-owner could not enjoin the company from erecting a fence along the boundary of said strip of ground.</p> <p>Same. — Proposition to Dedicate. — Not Acted Upon. — Effect of. — No rights accrued to the public on account of the proposition contained in the petition of the. railroad to the common council. Inasmuch as only the matter of vacating the alley was acted upon and referred to the city commissioners, everything relating to the opening of a new street must be deemed to have been abandoned. A mere proposition, or offer, on the one hand, not acted on or accepted, is not a contract.</p> <p>Same.— Use of Ground By Owner’s Permission. — When Does Not Constitute Dedication. — One who devotes a portion of his land for use as a way of travel for his own convenience and accommodation, will not be deemed to have dedicated it to the public simply because the public also use the way with the land-owner’s permission.</p>

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

<p>Jurisdiction. — Court of General Jurisdiction. — Presumption as to. — Where a court is a court of general jurisdiction, and it does not appear from the record that it was without jurisdiction, the Supreme Court will presume in favor of its jurisdiction.</p> <p>Same. — Empanelling of Qi-and Jmy. — Presumption Concerning. — Transcript.— Indictment. — Change of Venue. — Degree of Certainty in Criminal Procedure. —-Where it affirmatively appears in the record, and also by recital in the copy of the indictment which it contains, that the indictment was returned by a grand jury of Huntington county, the presumption must be that it was a legally empanelled grand jury, and the circuit court of the county to which the cause was taken on a change of venue will not be deprived of jurisdiction on the ground that there is nothing in the transcript nor the copy of the indictment to show that the grand jury was duly empanelled. Reasonable certainty is all that is required under our code of criminal procedure.</p> <p>Grand Juby. — Irregularity in Organization of.— Waived by Plea of Not Guilty. — Where, after the return of the indictment, and before asking that the venue be changed, the defendant entered his plea of not guilty, he thereby waived any irregularity in the organization of the grand jury.</p> <p>Change of Venue. — ■From County. — Criminal Case, — Duty of Clerk in Making up Mecord. — Presumption as to. — Jurisdiction of Court. — How Questioned. —Where a change of venue from the county is taken in a criminal cause, the statute makes it the duty of the clerk of the court where the cause originated to make a transcript of the proceedings had in that court, and to seal it up, together with the original papers, and deliver the same to the sheriff of his county, whose duty it is to deposit the package in the clerk’s office of the county to which the change of venue is taken. When such transcript has found its way to the court to which the venue has been changed, it must be presumed that it did so in the manner prescribed by law, and the contrary not appearing, it must be presumed that the original papers accompanied the transcript. If such was not the case, it was incumbent on the defendant to make that fact affirmatively appear in order to raise the question of jurisdiction.</p> <p>Evidence. — -Criminal Law. — Identification of Defendant. — Forcible Examination of His Person. — Party Making May Testify. — The defendant, while in jail in another State, was visited by A. to ascertain if he was the person named in the indictment, and if so to take steps for his removal to Indiana to answer to said indictment. He requested permission of the defendant to make an examination of his body for certain marks or scars thereon, for the purpose of identification, and the defendant refusing to grant the request, he was hand-cuffed and the proposed examination made forcibly and against his will.-</p> <p>Held, that it was competent for the party making said examination to testify on the trial of the defendant as to the marks and scars which he claimed to have discovered in said examination, and that the testimony did not fall within the constitutional inhibition, that “ No person, in any criminal prosecution, shall be compelled to testify against himself.’</p>

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

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

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

<p>'County Superintendent. — Election of by Toymship Trustees. — Quorum.— What Constitutes. — Cov/nty Auditor.— When Entitled to Vote. — All the township trustees of a county, eight in number, met at the county auditor’s office at the time designated in section 4424, B. S. 1881, for the purpose of electing a county superintendent. After effecting an organization, which was irregular by reason of the auditor casting the deciding vote for chairman, one of the trustees moved thatthe defendant be appointed county superintendent for the two years next ensuing. Four of the trustees voted in favor of the motion, and four, after protesting against the course pursued, declined to vote. Upon the chairman’s announcement that the vote was a tie the auditor voted in favor of the motion, and the chairman declared the defendant duly elected. Afterwards the defendant filed his bond and was duly qualified, and took possession of the office.</p> <p>Held, that the defendant was duly elected; that there was a quorum present; that he received the votes of all those present and voting, which was a majority of the number necessary to constitute a quorum, and that he received the necessary number without the vote of the auditor, who would only be entitled to vote in case of a tie. State, ex rel., v. Edwards, 114 Ind. 581, and State, ex rel., v. Porter, 113 Ind. 79, distinguished.</p>

<p>Moktgage. — Foreclosure.— When Mortgagor not Necessary Parly. — In a suit to foreclose a mortgage where only a decree for the sale of the landj and not a personal judgment, is sought, the mortgagor who has parted with title is not a necessary party. To cut off the equity of redemption it is only necessary to bring before the court the parties holding the legal title.</p> <p>Same. — Motion to Set Aside Decree. — Insufficiency of Affidavit Supporting.— Where a decree foreclosing a mortgage is rendered for want of an answer, a motion, supported by affidavit, to set aside the decree will be overruled unless the showing made discloses a substantial defence to the action.</p> <p>Same. — Promissory Note. — Duress, Illegal Consideration and Coverture. — Personal Defences. — In an action upon a note and to foreclose a mortgage executed to secure it against the purchasers of the land, the execution of the note under duress, the illegality of the consideration and the coverture of one of the mortgagors are not available as defences to the defendants, being defences personal to the mortgagors.</p>

<p>Advancement. — Money Furnished and Land Conveyed by Father to Son.— Absence of Contemporaneous Agreement. — No Resulting Trust or Indebtedness Arises. — Presumption. — Burden of Proof. — Where a father furnishes money to his suu, and purchases land, and causes it to he conveyed to his son without any contemporaneous understanding or agreement concerning the repayment of the purchase-money, no resulting trust arises, nor does the son presumably become the debtor of his father. The presumption is that the amount paid was an advancement from the father to the son, and the burden of proof is upon the party who asserts that it is something else.</p> <p>Same. — Conversion of into a Debt. — New Consideration Necessary. — If a transaction between father and son amounts to an advancement at the time it takes place, it can not afterwards be converted into a debt without the intervention of some new consideration.</p> <p>Same. — Money Paid by Father for Son.— What Necessary to Constitute it a Debt. — It is not necessary that there should have been an agreement between the father and the son in order to constitute money paid by the former for the benefit of the latter an advancement, but in order that money so paid should constitute a debt, the contemporaneous facts and circumstances must make it appear that it was understood and intended at the^time to be a debt.</p> <p>Same. — Secret Intention of Father. — Not Sufficient to Create Indebtedness. — Presumption. — Creditors.—A mere secret intention of the father, to treat the money paid as a debt, would not be effectual as against the son nor as against his creditors to overcome the presumption that it was to be an advancement.</p>

<p>Vendor and Purchases. — Number of Acres. — False Statement as to.— What Vendor Can Recover for. — Where a sale of land was made not for a gross sum, but at so much per acre, and the seller, with knowledge of the number of acres of land in the tract conveyed, misled the purchaser by stating it to be materially greater than it was, and the purchaser, relying upon said representation, and believing it to be true, purchased the tract, the seller can not recover for any greater number of acres than the tract contained.</p> <p>Same. — Discovery of False Statement. — Recording of Deed Thereafter. — Right of Recoupment not Affected Thereby. — Purchase-Money Note. — Damages.—The fact that the purchaser caused the deed to be recorded after he discovered that the tract did not contain the number of acres represented does not preclude him from recouping. He had a right to have the contract value of the number of acres not conveyed to him deducted from the purchase-money note. It is firmly settled that a party may affirm a contract and recoup or recover damages.</p>

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

<p>Insurance. — Non-Payment of Premium.— Waiver of Bight to Declare Forfeiture of Policy. — The right to declare a forfeiture of a policy for the non-payment of premium may be waived, which waiver may be manifested by conduct as well as by words.</p> <p>Same. — Acceptance of Premium. After Loss. — Forfeiture of Policy.— Waiver.— The insured paid in money a part of the premium, and executed his note for the remainder. The note was not paid at maturity, and judgment was recovered thereon against the insured before the loss occurred. A stay of execution was procured, and at the expiration thereof, which was after the loss, the judgment was paid and satisfied. The policy contained this provision : “ In case the assured fails to pay the premium note at the time specified, then this policy shall cease to be in force, and remain null and void during the timo said note remains unpaid after its maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium, however, revives the policy and makes it good for the balance of the term.”</p> <p>Held, that the company was liable £ or the loss, since by accepting the premium after the loss occurred it waived the right to declare a forfeiture of the policy, and confirmed the contract as of the date of its execution. American Ins. Co. v. Henley, 60 Ind. 515, and American Ins. Co. v. Leonard, 80 Ind. 272, distinguished.</p>

<p>Life Insubance. — Benefit Society. — Equitable Change of Beneficiary. — How Effected. — S. was the holder of a beneficiary certificate in a mutual benefit society. The by-laws of the order provided that when a member desired to change the beneficiary named in the certificate, he must, among other things, surrender the old certificate. The beneficiary originally named had been the wife of the deceased. She abandoned him, however, and refused to live with him, and without his consent took the certificate away with her. Upon a demand for its return, she stated that it was lost. The deceased being desirous of changing the beneficiary, complied with all the requirements of the by-laws in respect thereto, save the surrender of the old certificate, assigning its alleged loss for his failure to do so. It is charged that the officers of the subordinate lodge conspired with the wife to prevent the change of beneficiary, and refused to certify said application, etc., and no new certificate was issued.</p> <p>Held, that the acts of the decedent constituted an equitable change of beneficiary, and that the person in whose favor the decedent desired a new certificate to issue was entitled to the fund.</p> <p>Same. — Bight to Change Beneficiary. — Non-Compliance with By-Laws. — Effect of. — The right of the assured to make a change in the beneficiary existed as soon as the certificate was issued. It was his duty, while it was within his power to do so, to follow the mode provided by the bylaws in making the change. Whenever a state of circumstances existed, however, which deprived him of the power of literally complying with the conditions of the by-laws he was relieved of a literal compliance therewith, but was not divested of the right to make the change. Having done all in his power toward complying with the by-laws in making the change, and having been prevented by the wife from a formal compliance, she can not now set up her own wrongful act to prevent a recovery for the benefit of the new beneficiary.</p> <p>Same. — Bight of -Beneficiary. — How May be Defeated. — Imperfect Changes of Beneficiaries. — Equitable Buie. — The beneficiary in such a certificate of insurance does not, during the life of the member, have an indefeasible right in the contract or fund, but such beneficiary has an interest which can only be defeated by a change effected in the manner provided by the by-laws. There are exceptions, however, to this general doctrine, and equity will aid imperfect changes of beneficiaries, and considers that done which ought to have been done, and never requires impossibilities.</p> <p>Pleading.— Written Instrument. — Exhibit. — Cross- Complaint. — Practice.— Where a written instrument, which is the foundation of a cross-complaint, has been exhibited with the complaint, it may be referred to in the cross-complaint by reference to the complaint, without again setting it out as an exhibit.</p>

<p>Venire De Novo.— Verdict in Proper Form. — Answers to Interrogatories.— Where the verdict is in proper form, a motion for a venire de novo will not lie. The answers to interrogatories propounded to a jury can not be brought into question by a motion for a venire de novo.</p> <p>Interro&atories to Jury. — Failwreto Answer. — Practice.—When the jury fail to fully and properly answer interrogatories, the proper practice is to send them back to their room that they may answer further. If the evidence is of such a character that they can not answer the interrogatories, or if they can not agree upon proper answers, they should so state.</p> <p>Animads.— Vicious Dog. — Failure to Confine. — Damages.—Contributory Negligence. — Whoever keeps a dog which has a propensity to bite mankind, is required to keep him confined, and if he fails to do so must respond in damages for the animal’s ferocious act to any person injured thereby, if he was guilty of no contributory negligence.</p> <p>Same. — Instruction to Jury. — Ability to Control Vicious Animal. — The following instruction was requested by the plaintiff to be given to the jury: “ The fact that the defendant or defendant’s wife may have been able to control the dog, by calling him off or speaking to him when he would run at any one, even if the jury believe this fact proven, is not such a restraining as is contemplated by the law, and would not release or excuse the defendant from the charge of negligence if the other facts in said cause are proven that would require the defendant to restrain his dog.” The court’s refusal to give this instruction was an error, as the evidence disclosed that the defendant’s wife, though she might have been able ordinarily to control the animal, did not do so on this occasion, and her presence did not excuse the defendant’s failure to confine the dog.</p> <p>Verdict. — Insufficient Evidence. — New Trial. — Where there is not sufficient evidence to support the verdict a new trial should be granted.</p>

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

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

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

<p>Negligence. — Concealed Pitfall. — Injury to Infant. — Damages.—Dealing with Children. — Degree of Care Requisite. — Where the proprietors of a saw-mill situated in the public part of a town, near to a public highway, had by their knowledge and acquiescence given license to children of tender years to use their uninclosed lot surrounding the mill as a play-ground, and without any warning to them or others, constructed a pitfall in the ground where such children were accustomed to play, which they filled with burning embers and which gave forth no signs of its condition, or the danger in stepping upon its covering, and while in this condition a child of tender years entered upon it, as he was accustomed to do, without any knowledge of its changed condition, and was severely burned and injured, they were liable under such circumstances to respond in damages. Greater care must be exercised in dealing with children of tender years than with older persons who have reached the age of discretion.</p>

<p>Animals. — Cruelty to. — Mutilation of Dog. — Prosecution Under Act of 1889.— Section 2101, E. S. 1881, relative to cruelty to animals, was repealed by the act of March 11th, 1889. (Elliott’s Supp., section 329 et seq.) Under the later act a prosecution may be maintained for the mutilation of a dog. It is broad enough in its terms to include dogs not listed for taxation as well as those that are listed.</p> <p>Same. — Affidavit.—Not Necessary to Describe Injury. — In a prosecution by affidavit and information, for the mutilation of a dog, it is not necessary to describe the injury in the affidavit. The statute does not do so, and it'is sufficient to follow the language of the statute, unless some sufficient reason exists for greater particularity.</p>

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

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

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

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

<p>Divorce. — Residence of Plaintiff. — Failure of Proof. — Statutory Requirement.— The statute declaring that the bona fide residence of the petitioner, in a divorce proceeding, shall be proved by at least two witnesses who are resident freeholders and householders of the State, is mandatory, and can not be satisfied or set aside by a tacit agreement or admission of the defendant nor in any other manner. There must be actual proof to the satisfaction of the court by witnesses possessing the statutory qualifications. A tacit agreement and admission, at the trial, by the defendant’s counsel, that the plaintiff had been a resident of the State for the requisite period does not cure the defect in the proof.</p>

<p>Action. — By Assignee of Qlaim.— Venue. — Statute Construed.-^-Section 312, E. S. 1881, providing that “ any action brought by the assignee of a claim arising out of contract, whether assigned in writing or by delivery, shall be commenced in the county where one or more of the parties immediately liable to judgment and execution reside,” has no application in a case where the action is in rent and the party immedi* ately liable is a non-resident.</p> <p>Same. — Parties to. — Equitable Assignment. — Statute Construed. — Section 276, E. S. 1881, providing that “ When any action is brought by the assignee of a claim arising out of contract, and not assigned by endorsement in writing, the assignor shall be made a defendant, to answer as to the assignment or his interest in the subject of the action,” must be construed with sections 251 and 269, E. S. 1881, providing respectively that “Every action must be prosecuted in the name of the real party in interest,” and “ Those united in interest must be joined as plaintiffs or defendants.” The section has no application in a case where the obligee, who has assigned an interest in the dai^n, is urging the assignment. In such case the assignor and assignee are proper party plaintiffs, and the obligor will be as fully protected by the judgment of the court as though the obligee was a party defendant.</p> <p>Pleading. — Demurrer.—Jurisdiction.— Waiver. — Where a defendant appears and demurs to a complaint he waives all question as to the court’s jurisdiction over his person.</p> <p>Same.— Variance. — Effect of. — A variance between a copy of a contract filed as an exhibit and the complaint, will be disregarded on appeal. As the variance could have been avoided by amendment at the trial, the amendment will be presumed to have been made.</p> <p>Same. — Beal Estate Agent. — Action for Commission. — Allegation of Performance of Contract.— When not Necessary. — Where an agent contracted to sell certain real estate on commission within a certain time, and the owner reserved the right of making a sale in the meantime, but in case he did so the agent was to receive the same fee as if he had effected a sale, and a sale was made by the owner within seventeen days after the contract was made, the agent, in order to recover on his contract, was not required to allege performance on his part.</p> <p>Same. — Allegation that Claim is Due and Unpaid.— When not Beqwired. — In such case it appearing, taking the pleading as a whole, that the claim was due and unpaid, the plaintiff was not required to allege in express terms that fact.</p>

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

<p>Divorce. — Procurement of in Territory. — Residence.—Answer.—Reply.—Jurisdiction. — In an action for divorce, where the defendant answered that he had procured a divorce from the plaintiff in the Territorial court of Montana, having been a resident of the Territory for more than the statutory period required to give the court jurisdiction, a reply is good which alleges that the defendant was not a resident of Montana at any time, but had always been a resident of Indiana.</p> <p>Same. — Non-Residence of Either Party.— Void Decree. — Status of Party.— Power of Court Over. — Where neither the plaintiff nor the defendant is a resident of the State or Territory in which a decree of divorce is pronounced, the courts have no jurisdiction, and their decree is void. To give validity to the decree of a court in a suit for divorce, one at least of the parties must be a resident of the State or Territory in which a decree dissolving the marriage is rendered. Marriage gives to the parties a peculiar legal status, and the courts of one State can not, by judgment or decree, fix the status of the citizens of another State.</p>

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

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

<p>Highway. — Establishment of. — Appeal.—Filing of Affidavit with Auditor.— Presumption as to. — County Commissioners. — In an appeal from the decision of the board of county commissioners establishing a highway, where no affidavit appears among the papers in the cause, or in the transcript prepared of the proceedings by the county auditor, and transmitted by him, together with all the papers, to the clerk of the circuit court, the court, in the absence of a showing to the contrary, has the right to presume that none was filed.</p> <p>SAMH. — Parly to Proceeding.— Who is. — May Appeal Without^Filing Affidavit. —Section 5772, R. S. 1881, Construed. — Where a person is named in a petition to establish a highway as one of the persons over whose land the highway was to pass, and whose property was to be appropriated for a public use, he is a party to the proceeding to establish the public highway in question. He may appeal from the decision of the board of county commissioners without filing an affidavit with the auditor, and although he did not file any remonstrance with the board, and did not appear in any manner to the proceedings. Section 5772, R. S. 1881, requiring the filing of an affidavit,has no application to persons who are parties to the proceeding.</p>

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

<p>Habeas Corpus. — 1Repeated Prosecution of Prisoner. — Legality of Process.— Statute. — The petitioner in an application for a writ of habeas corpus alleged that be had been twice convicted of arson, and that on appeal the judgment had been reversed in each instance; that a prosecution for conspiracy, in connection with the crime of arson, was then instituted by affidavit and information, and dismissed ; that an indictment was then returned against him, which indictment, on the prisoner’s motion, was quashed, and the petitioner ordered by the court to remain in custody to answer any charge that might be made by the grand jury; that no accusation having been presented against him he applied for a writ of habeas corpus, and was discharged upon his own recognizance to await the action of the grand jury. It was further alleged that immediately after such discharge the petitioner was again arrested and confined in jail by the sheriff upon a pretended affidavit and information made by the sheriff, charging him with conspiracy, and that he was then in his custody. Upon a return made by the sheriff the writ was denied, and the petitioner again remanded to his custody.</p> <p>Held, that under section 1119, R. S. 1881, which provides that “ No court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody upon a warrant issued from the circuit court.upon an indictment or information,” a ease was not made entitling the petitioner to a discharge, and that the judgment of the court would not be disturbed, it not appearing that there was any delay in the last prosecution, or that the crime with which the prisoner was last charged was the same as that charged against him in either of the former prosecutions.</p>

<p>Pabtition. — Title not in Issue. — Division of Land. — Where the title is not put in issue in a partition proceeding the judgment does no more than divide the land. The title may be put in issue, and if so the decree is conclusive.</p> <p>Shebife’s Sabe.— Upon Decree against Married Woman. — Land Held in Virtue of Previous Marriage. — Sale does not Pass Title. — A purchaser at a sale made upon a decree of foreclosure rendered against a woman who acquires property from her first husband under the statute, and who marries a second time, acquires no title by mere force of the decree and sale.</p> <p>Quieting Title. — Conclusive Decree. — Collateral Attach. — In a suit to quiet title, where there is jurisdiction, a decree declaring the plaintiff to be the owner in fee simple of the land, with an order that the title of the plaintiff be quieted as to all of the defendants, and that they be di- ( vested of all title, is conclusive upon all the parties to the suit, and is i not subject to collateral attack.</p>

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

<p>Principal and Surety. — Promissory Note. — Neglect or Failure to Pursue Mahers.— When Surety not Released. — The mere neglect or failure of the holder of a note, in the absence of a statutory notice, to pursue the makers until the principal becomes insolvent, affords no ground for the exoneration of a surety. Mere' delay in proceeding to collect the debt, in the absence of a binding agreement made upon a valid consideration, or the surrendering of securities, or the. release of a lien, or some active fraud, which results in injury, which the surety had no means of averting, will not release the latter.</p> <p>Pleading. — Answer.—Must Proceed on Definite Theory. — It is necessary that the facts pleaded in an answer should make it good on the theory on which they were pleaded.</p>

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

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

<p>Intoxicating Liquor. — Sale Upon Day of Primary Election. — Section 2098, P. S. 1881, Construed. — Under section 2098, K. S. 1881, which provides that “ Whoever shall sell, barter, or give away to be drunk as a beverage, any spirituous, vinous, malt or other intoxicating liquor * upon the day of any election in the township, town or city, where the same may be holden, * ® shall be fined,” etc., it is a crime for a person having a license under the law to sell intoxicating liquors in a less quantity than a quart at a time on the day of a primary election held by a political party to select candidates to be voted for at a general election.</p> <p>Same. — Section 2098, B. S. 1881. — Ascertainment of Legislative Intent. — In construing section 2098, section 2099 of the same act which prohibits druggists and their clerks from selling intoxicating liquors upon the day of any State, county, township, primary or municipal election in the township, town or city where the same is held, is to be considered therewith in ascertaining the legislative intent.</p> <p>Elliott, J., and Coffey, J., dissent.</p>

<p>Pleading. — Plea in Abatement. — Non-Residence of Defendants. — A plea in-abatement, in an action of replevin, is good which avers that the defendants were residents of the State Of Ohio; that none of them resided in Tipton county, Indiana, where the suit was instituted, and that none of them had ever resided in that county, or were served with process therein. If the property which the plaintiffs were seeking to recover was not in that county, and the defendants being non-residents of the State had never been found therein, the Tipton Circuit Court prima faeie had no jurisdiction.</p> <p>Same. — Answer.—Service upon Agents. — An answer to such a plea in abatement is good which avers that the defendants had a store in Tipton county, Indiana, where the action was commenced ; that the cause of action grot? out of, and was connocted with, the business of the defendants in that county, and that process was served upon the agents of the-defendants, in that county, in charge of their said business. See section 309, B. S. 1881.</p>

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

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

<p>Cobpobation. — Stockholders.— When not Personally Liable. — Complaint.—Insufficiency of. — A complaint which alleges that the plaintiffs are the holders of unsatisfied judgments against an insolvent railroad corporation, and which seeks the recovery of a personal judgment against the defendants to the action, who are alleged to have subscribed to the stock of said corporation, and to have been stockholders therein at the time the several debts due the plaintiffs were incurred, fails to state a good cause of action, in the absence of any averment that the defendants, as subscribers to the stock, are indebted for unpaid balances, or that the plaintiffs’ claims were for labor done in the construction of the road.'</p>

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

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

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

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

<p>Married Woman. — Defence of Husband. — Promissory Note. — Execution of to Pay Attorney’s Fee.— Validity of. — Husband and Wife as Principals on Note. —A married woman may bind berself by a note executed by her for the payment of the fee of an attorney, employed by her to defend her husband against a criminal charge. The fact that she joined her husband in executing the note does not imply that she was not a principal, for in a note signed by a husband and wife both may be principals; indeed, the husband may be the surety of the wife. The relation of the parties to the note, and the capacity in which they contracted, depend upon the contract with the creditor, and not solely upon the signatures to the instrument.</p> <p>Instructions to Jury. — Must be Considered Together. — Instructions can not be overthrown by dissecting them and assailing detached clauses in detail, but if taken as a whole they accurately declare the law they will be sustained.</p>

<p>County Commissioners. — Allowance by. — Appeal from. — Voluntary Services. —Insufficiency of Showing as to. — Where a board of county commissioners allowed to certain claimants a sum of money to reimburse them for money paid out by them for the construction of a levee, and all that the record shows is that the persons to whom the allowance was made, with others, voluntarily constructed a levee on each side of the Salamonie river in the city of Portland, and that this levee was constructed on the land of an individual who afterwards dedicated it to the public for use as a public highway, the facts set out are altogether insufficient to bring the claim within the statute which denies the right of appeal from an allowance made by a board of county commissioners for voluntary services. No facts appear which show that the board of commissioners might, under any statute in force at the time, have entered into a contract for the construction of the work.</p> <p>Same.— Allowancesfor Voluntary Services.— When can be Made. — Boards of county commissioners are not authorized to make allowances without restraint or limit, under the guise of making allowances for services rendered and things furnished voluntarily. Allowances of that character can only be made when the circumstances are such that the board might have lawfully entered into a contract with those to whom the allowance was made for the services rendered or things furnished.</p> <p>Same. — Illegal Allowance.— Who May Appeal from. — If a board of commissioners makes an allowance when it would have had no power to make a contract for the services or things for which the allowance is made, the allowance is illegal, and any taxpayer feeling aggrieved may have relief-by appeal.</p> <p>Same. — Allowance.—Right of Appeal. — How Determined. — Where an appeal is taken from an allowance made upon a claim for a certain sum of money, presented to the board of county commissioners by the claimants, it is a question of law for the court to determine after hearing all the facts, or after the facts are found, whether the decision appealed from was one which made an allowance for voluntary services within the discretion of the board, and from which no appeal would lie.</p>

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

<p>Peomissoby Note. — Bohemian Oats.— Gambling Contract. — Void Between Parties as Against Public Policy. — Bona Fide Purchaser. — Ten bushels of i oats, of the actual value of thirty or forty cents a bushel, were delivered by one party to the other, upon an agreement that the party re- ' ceiving the oats should execute his note for $100, the party furnishing the oats agreeing in’turn to sell twenty bushels of oats to be delivered by the maker of the note, at the price of $10 per bushel, both parties presumably having full knowledge of the actual value of the oats.</p> <p>Held, that between the parties to it the contract was void as against public policy.</p> <p>Held, also, that the note, which was commercial paper, was enforceable in the hands of an innocent holder, if he could make it appear that he was a bona fide purchaser for value without notice.</p> <p>Same. — Assignee.—Knowledge Sufficient to Put Upon Inquiry. — Where the circumstances show that the purchaser of paper refrained from making inquiry lest he should thereby become acquainted with the transaction out of which the note originated, he can not occupy the attitude of a holder in good faith without notice. The plaintiff’s evidence having shown that he purchased five notes, including the one in suit, against five different persons at the same time, from a person with whom he was on intimate terms, and who is shown to have been connected with the Bohemian oats scheme, and it further appearing that the notes were sold at a rate much above the ordinary discount, the inference was warranted that the plaintiff had such knowledge as made it his duty to make inquiry into the transaction.</p> <p>Same. — Speculative Transaction. — Bond Executed in. — Invalidity of as Contract. — Return of not Condition Precedent to Defence on Note. — The bond . executed by the seller as a part of the transaction in which it was stipulated it would sell twenty bushels of oats for the makers of the note at $10 per bushel, with the stipulation that it was understood between the parties that “ the transaction covered by this obligation is of a speculative character, and is not based upon the real value of the grain,” although forming the chief consideration of the note was of no value as a contract, and the defendants were not bound to return it as a condition precedent to defend against an action upon the note.</p> <p>Contract.— Writings Executed Simultaneously Must be Construed Together.— Where two or more writings are executed at the same time and relate to the same transaction or subject-matter, they must be construed together in determining the contract between the parties.</p>

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

<p>Practice. — Demurrer to Evidence. — Amendment of Complaint Thereafter.— In an action for damages for personal injuries, where, after the introduction of the plaintiff’s testimony, the defendant demurred thereto, and the jury was discharged, it was proper for the court to permit the plaintiff, after the discharge of the jury, to amend his complaint by alleging that he had not been guilty of any contributory negligence. If the defendant had, after the amendment, asked permission to withdraw its demurrer it would have been the duty of the court to have granted its request, and its refusal would have been error.</p> <p>Demurrer to Evidence. — Effect of. — Where a demurrer is addressed to the evidence all the material facts which the evidence tends to establish, assisted by all reasonable inferences which a jury might draw from such evidence, are to be taken in favor of the party against whose evidence the demurrer is addressed.</p>

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

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

<p>Execution. — Lien.—Saw Affected by Appointment of Receiver. — Lien-holders May Levy upon Property After Sale. — Where executions become liens on personal property, and afterwards a receiver is appointed, in a proceeding to which the lien-holders are not made parties, such appointment of the receiver and the sale of the property by him do not divest such liens. While the property is in the hands of the receiver the right to enforce the lien is suspended ; but after a sale the lien-holders have the right to levy upon and sell the property.</p> <p>Same. — Administration of Estate by Receiver not Purely a Proceeding in Rem.— The administration of an estate by a receiver is not purely a proceeding in rem, and the acts of such receiver, and the orders of the court in which the estate is administered, do not bind persons who are not parties to the proceeding, and who have no opportunity of being heard.</p>

<p>Negligence. — Action for Personal Injuries and Injury to Properly. — Bill of Particulars. — Gan not be Required. — In an action for damages for personal injuries and injury to the plaintiff’s team occasioned by the negligence of the defendant, a general motion applicable to the personal injury and to the property alleged to have been damaged, to require the plaintiff to make his complaint more specific by filing a bill of particulars was properly overruled.</p> <p>Same. — Complaint.—Denial by Plaintiff of Contributory Negligence. — General Denial only Proper Answer. — In such action the plaintiff having averred that the injury occurred through the negligence of the defendant, without any fault on his part, the only appropriate answer was a denial. The defendant could not confess and avoid. Hence, it was not error to sustain plaintiff’s motion to reject an answer following the general denial, which alleged that the plaintiff was guilty of contributory negligence.</p> <p>Bill of Exceptions. — Dale of Presentation. — Must be Stated in the Bill.— Where the date of the presentation of the bill of exceptions, as stated in the body of the bill, indicates that it was not presented until after the time limited had expired, the bill is not properly in the record, although following the proper authentication and signature of the judge there is a personal statement signed by the judge showing that the bill had been presented within the proper time. The statute is imperative, and the date of presentation must be stated- in the bill of exceptions.</p>

<p>Easement. — Might of Way. — Derivation of Title To.- — Need not be Averred.— Complaint. — Jn an action to enjoin the defendant from obstructing and closing up a right of way, which the plaintiff claimed over and across the lands of the defendant, it is not necessary to allege in' the complaint the particular manner in which the plaintiff derived title to the right of way.' The averment in the complaint that he is the owner of a certain tract of real estate, and also of an easement and right of way across the land of the defendant (describing it), is a sufficient allegation of ownership to withstand a demurrer.</p> <p>Same. — Non-Mevocable Lieense. — Parol Evidence to Establish. — Admissibility of. — Under the allegations of a complaint averring broadly a right of way over and across the lands of the defendant, it is competent to prove a parol non-revocable license to pass over the said land.</p> <p>Same. — New Trial as of Might. — An action to enjoin the closing up of a right of way, and for damages, is not an action to recover land, and the defeated party is not entitled to a new trial as a matter of right.</p> <p>Practice. — Cross-Complaint.—Sustaining Demurrer to.— When Harmless Error. — It is harmless error to sustain a demurrer to a cross-complaint when all the averments of the cross-complaint can be proved under an answer of general denial on file.</p>

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

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

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

<p>Parol Trust. — Action to Enforce. — Complaint.—Insufficiency of. — The complaint alleges that the land therein described was deeded by P. to C.; that while purporting on its face to be an absolute deed it was intended by the parties to the instrument to secure C. for advances made by him to P.; that he should sell enough of the land to reimburse himself, and convey the remainder to P.’s wife; that C.’s advances were fully paid, and the land conveyed by him to J. under the express oral agreement,' made at the time, that J. should dispose of the land, as necessity required, and pay the proceeds to his mother, the wife of P., during her lifetime, and if any portion remained unsold, at the time of her death, the same should be sold and the proceeds paid to her three children equally, one of whom was the plaintiff; that J. sold portions of the land during the lifetime of his mother, paying the proceeds to her, and after her death sold other portions, converting the proceeds to his own use; that J. died intestate, and that his administrator is threatening to sell portions of said land for the payment of J.’s debts. Judgment was prayed that the sale be enjoined; that a commissioner be appointed to sell the land, and that he be directed to pay one-third of the proceeds of the sale to the plaintiff, taking into account all sales of said lands made by J. since the death of his mother.</p> <p>Held, that the complaint was bad, as it attémpted to enforce a parol trust in land, which is forbidden by section 2969, it. S. 1881.</p> <p>Held, also, that the complaint could not be sustained on the theory that it was an action to recover the proceeds of sales made by J. in his lifetime, for in such hn action the heirs are neither necessary nor proper parties, and such an action can not be brought against an administrator by complaint and summons.</p> <p>Pleading. — Must Proceed upon Definite Theory. — Every pleading must proceed upon some definite theory, and its sufficiency must be determined by the theory upon which it proceeds.</p>

<p>Gaming. — Loan of Money to be Used in Purchase of Options. — Lender’s Knowledge.— When Recovery will not be Defeated. — Mere knowledge on the part of a person loaning money that the borrower intends to use it by engaging in the purchase of options on grain in the market of another State, or investing in wagering or gambling contracts, will not defeat a recovery. In order to defeat a recovery it must appear that the person loaning the money did something more than loan the money in furtherance of the deal, or in aid of the illegal transaction.</p> <p>Peomissoby Note. — Action Upon. — Pleading.— Answer Alleging Want of Consideration. — Sufficiency of Reply. — To an answer alleging want of consideration, a reply which alleges that the first note was given for money loaned, and that the note in suit was given in renewal, is sufficient.</p>

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

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

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

<p>Appeal. — From, Proceeding Instituted for Construction of Will. — Not Governed as to Time by Decedents’ Act. — An appeal from a proceeding instituted by an executrix against the beirs and legatees oí the decedent to bave tbe will construed is not governed as to tbe time of taking tbe appeal by the provisions of the decedents’ act.</p> <p>Will. — Disposition of Beal Estate. — Subsequent Sale. — Proceeds.—Bequest of Personal Property.^-Wife’s Legacy. — A testator directed that certain real estate should be sold and a disposition of the proceeds made. After-wards he conveyed said real estate, and at the time of his death held certain promissory notes, a part of the proceeds arising from the conveyance. The first clause of the will read thus: “ I give and bequeath to my wife all the personal property which I may own at my death.”</p> <p>JSeld, that the notes given for the real estate and held by the testator at the time of his death passed to the widow under said clause, and became a part of the wife’s legacy.</p> <p>Same. — Subsequent Conveyance of Devised Beal Estate. — Provision of Will.Bendered Inoperative Thereby. — Where a testator disposes of real estate, and thereafter conveys it, the provisions of the. will relating thereto are rendered inoperative.</p>

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

<p>From the’Jay Circuit Court.</p>

<p>Brnr. os' Exchange. — Copy of Acceptance. — Averments of Complaint not Controlled Thereby. — In an action upon a bill of exchange drawn by the defendant, payable to his own order and endorsed by him to the plaintiffs, the acceptance is not the foundation of the action, and the copy thereof filed with the complaint can not control its averments.</p> <p>Same. — Presentment for Payment and Protest. — When Made in Time. — A thirty-day bill of exchange drawn on February 11th, 1884, and accepted on the same day, was properly presented for payment and protest on the 15th day of‘March, 1884, there being twenty-nine days in February, 1884, which would make the bill payable on March 12th, and the three days of grace bringing it up to March 15th.</p> <p>Same. — Legal Presentment for Payment.— What Constitutes. — Notice of Dishonor.— When not at Variance with Complaint. — Where a bill of exchange was taken to the place designated in the acceptance as the place of payment, and the place was unoccupied and closed, and no one could be found to whom presentment for payment could be made, in legal effect the bill was presented and payment refused. The statement in the notice of dishonor that the bill was duly presented for payment without a recital of the fa'cts, does not conflict with the allegation in the complaint setting forth the facts in detail.</p> <p>Same. — Notice of Dishonor.— When Mailed in Time. — Where the notice of protest was mailed by the notary the next day after the protest was made, at the post-office in Chicago, Illinois, to the Citizens’ Bank of Attica, Indiana, addressed to said bank at that place with directions to the bank to forward the same to the defendant, whose address was unknown to the notary, it was mailed within the proper time. The paper was payable in the State of Illinois, and was, therefore, controlled by the statutes of Illinois relating to commercial paper. Under the laws of that State a period of three days of grace was allowed after the maturity of the bill, and forty-eight hours thereafter’given to the notary in which to mail the notice.</p> <p>SAME— Notice of Protest. — Sufficiency of. — Designation, of Months by Figures.— The notice of protest was as follows: “State of Illinois, County of Cook, Chicago,'Illinois, 3 — 15—1884: Sir: A draft for $500 on F. W. Pullen & Co., dated 2 — 11—84, payable thirty days after date, endorsed by-, has been this day by me protested for non-payment, and I hereby notify you that payment has been duly demanded, and the holder looks to you for payment, damages, interest and costs. Done at the request of the First National Bank of Chicago.</p> <p>“ To James Brown. Orville Peckeotst, Notary Public.”</p> <p>Meld, that the employment of figures to designate the months did not vitiate the notice.</p> <p>Meld, also, that the bill was so described in the notice as to give to the defendant the information that it was the paper sued on that was protested.</p> <p>Meld, also, that the defendant could but understand from the notice that the First National Bank of Chicago held the bill, or at least that he could ascertain its whereabouts by inquiring of said bank.</p>

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

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

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

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

<p>Intoxicating Liquob. — Oiiy Ordinance Regulating Saloons.— Validity of.— A city ordinance providing that any one keeping a saloon where intoxicating liquors are sold to be drank on the premises “ shall close the same for the night at 11 o’clock P. M. of each day, at which time such persons shall raise all door-screens and remove any obstructions, so as to give an unobstructed view of the interior, and require all other persons to vacate said premises, and shall not reopen the same until 5 o’clock A. m. the following morning,” is a valid ordinance. Cities are empowered to make such regulations as those provided for in the ordinance. Sections 3106, 3154, B. S. 1881.</p>

<p>Street Improvement. — Lien for Local Assessment. — Notice.—Notice at some stage of the proceedings prior to a conclusive judgment is requisite in order to authorize the subjection of property to a special lien for a local assessment.</p> <p>Same. — Act of March 8th, 1889. — Constitutionality of. — Notice.—The act of March 8th, 1889, provides notice to the property-owners, and is constitutional.</p> <p>Same. — Proceedings for Injunction. — Only Jurisdictional Questions Available.— An injunction suit to prevent the improvement of a street at the expense of the abutting owners, is a collateral attack upon the proceedings of the corporate officers, and only defects or irregularities affecting the jurisdiction can be made available. .Questions as to the manner in which the work was done under the contract, and kindred questions, can not' be considered in such suit, for they do not go to the jurisdiction.</p> <p>Same. — Act of 1889. — Authority of Municipal Corporation to Order Local Assessments. — Insufficient Petition. — The act of March 8th, 1889, does not restrict the authority tf£ municipal corporations to order local assessments to cases where petitions are filed, but invests them with authority to order the assessments by a vote of two-thirds of the members of the common council or board of trustees without a petition. Hence, the fact that there is an. insufficient petition does not necessarily render the proceedings void for want of jurisdiction, for the proceedings may not have been founded upon the petition.</p> <p>Same. — Town Trustees. — Adjudication of Sufficiency of Petition. — Collateral Attach. — Where the record showed that a petition was presented to the town trustees, and that they adjudged it to be sufficient, this was an adjudication upon a jurisdictional fact, and is conclusive against a collateral attack.</p>

<p>Railroad. — Completion of Orade. — Acquiescence of Land-Owner. — Injunction—Ejectment.—A land-owner who stands by and permits a railroad company to enter and construct its road, or complete its grade, or expend a considerable amount of money in the construction of its road-bed, thereby waives his right to maintain either an action of ejectment or for an injunction to prevent further prosecution of the work.</p> <p>Same. — Assessment of Damages. — But if the company has unlawfully entered upon the land, the owner may maintain an action for damages, or institute proceedings under the statute^ for the assessment of his damages.</p> <p>Same. — Trespass.—Limitation of Actions. — Section 292, L. S. 1881. — Where a a railroad company unlawfully entered and took possession of a street, and constructed and completed its grade, the cause of action of the abutting land-owner thereupon accrued, and under section 292, B. S. 1881, which limits actions for injuries to real property to six years, the action must be brought within six years from the completion of the grade, or it is barred.</p>

<p>Criminal Law.— Evidence.— Declarations' of One Jointly Indicted.— When Inadmissible. — Where there is no evidence in the record tending to show that there was a conspiracy for the commission of the offence charged, between the defendant and one jointly indicted with him, but not on trial, declarations of the latter, prior to the commission of the alleged crime, made in the absence of the defendant, can not be admitted in evidence against him.</p>

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

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

<p>Pleading. — Marriage Contract. — Action for Breach of. — Answer Alleging Conspiracy to Defraud. — Insufficiency of. — In an action for breach of promise, an answer is bad which alleges that the plaintiff conspired with another to defraud the defendant by setting up a false claim that the latter had promised to marry her, but which does not state that anything was done to induce the promise. The answer is also bad for the reason that a single paragraph of answer can not confess a cause of action and also deny it.</p> <p>Instructions to Jury. — Must be Considered as an Entirety. — Where the instructions to the jury, taken as an entirety, show that there is no error in them by which the jury could have been misled, it is unavailing to detach from one of the instructions a brief clause and assault it.</p> <p>Misconduct of Counsel.— When Unavailing Ehror. — Where counsel were guilty'of misconduct in referring to a change of venue, but upon objection the court promptly checked the counsel and instructed the jury that the question of a change of venue was one they had no right to consider, the misconduct of counsel was not such error as to justify a reversal of the judgment.</p> <p>Same. — Objections to. — Must be Specifically Stated to Avail on Appeal. — Objections to the conduct of counsel in argument can not be made available on appeal unless the grounds of the objection are specifically stated.</p>

<p>Pleading. — Assault and Battery. — Action for Damages. — Complaint.—The Unlawfulness of Beating Need not be Alleged. — Presumption.—It is not necessary to aver in a complaint to recover damages for an alleged assault and battery, that the beating was unlawful and wrongful. When it is charged that the defendant assaulted and beat the plaintiff, the legal implication is that the act was unlawful, and the burden of justifying his conduct is cast upon the defendant.</p>

<p>Bepuevek. — Pleading.—Allegation of the Unlawful Obtaining of Property Unnecessary. — In an action for the recovery of the possession of personal property and damages for its unlawful detention, it is not necessary to allege in the complaint that the defendant unlawfully obtained possession of the property therein described. The question as to the means by which the defendants obtained possession is immaterial, if at the time of the commencement of the suit, they were unlawfully detaining the same from the plaintiffs.</p> <p>Principal and Stjbety. — Payment of Debt by Surety before Maturity.— When Action May be Maintained. — If a surety pays the debt of the principal before maturity he can not maintain an action until the time for payment has expired, but if he is not repaid at that time he may sue to recover the amount which he paid in discharge of the debt.</p> <p>•Chattel Mortgage. — Conversion of Mortgaged Property. — Action for. — Mortgage not Made Part of Complaint. — Filing Copy. — In an action for the wrongful conversion of property alleged in the complaint to have been mortgaged to the plaintiffs, the action is not based on the mortgage, and the mortgage can not be made a part of the complaint by filing a copy thereof.</p> <p>Same. — Personal Property Fkicumbered by Mortgage Lien. — Purchaser.—Liability of to Holder of Mortgage. — One who purchases personal property encumbered by a valid mortgage lien, and converts such property to his own use,is liable to the person holding and owning such mortgage. Same. — Must be Recorded within Ten Days. — A chattel mortgage not recorded within ten days after its execution is void as to the holder of a chattel mortgage on the same property, executed at a subsequent date, but recorded within the statutory period.</p> <p>Same. — Conversion.—Pleading.—Recorded Mortgage. — Notice.—In an action for the unlawful conversion of mortgaged property, an answer is bad that alleges that the defendants bought the property in good faith, and removed it to another county where it was destroyed by fire, without their fault or negligence. The mortgage was duly recorded, and of its existence the defendants were bound to take notice.</p> <p>Pleading. — Sufficiency of Demurrer. — A demurrer in the following form: “ The plaintiffs demur separately to each, the second, third and fourth paragraphs of the answer of the defendant, and for cause of demurrer say that neither of said paragraphs states facts sufficient,” is sufficient to call in question the sufficiency of the answers in question as a defence to the complaint in the case.</p>

<p>CkiminaIí Law.— Subornation of Perjury. — Indictment. — What it Musi Charge. — Under section 2008, B. S. 1881, which provides that “whoever suborns or procures any person to commit perjury, is guilty of subornation of perjury,” the indictment must charge that the defendant procured another to commit perjury, and that the party procured committed the crime.</p> <p>Same. — Insufficiency of Indictment. — Under section 2006, B. S. 1881, defining-what shall constitute perjury, an indictment for subornation of perjury which alleges the procuring of an affidavit before a notary public in the form of an ordinary complaint, falsely charging a person with being the father of the affiant’s unborn bastard child, but which does not aver that any prosecution was ever commenced before any justice of the peace, or that any legal proceedings were' pending in which such affidavit was made, or filed, is insufficient, and a motion to quash should be sustained-</p>

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

<p>Municipal Cobpokation. — Street Improvement. — Section 8, Acts 1889,p. 889, Construed. — The common council of a city may, under section 2, Acts 1889, p. 239, declare in the same resolution the necessity for a proposed street improvement, and order the same to be made. It is not necessary under said section to first pass a resolution declaring the necessity of such improvement, and then afford those interested an opportunity to be heard as to the necessity for the construction of said work before a valid order can be made for such improvements. It is a substantial compliance with the requirements of the statute to embrace both matters in one resolution, and the doing so will not render the proceedings-. void.</p> <p>Same. — Imposition of Burdens upon Primate Property. — Statute Relating to.— Sow Construed. — Failure to Comply Strictly with Statutory Requirements.— . Collateral Proceeding. — Jurisdiction.—Statutes granting to municipal corporations powers which involve the imposition of burdens upon private property are to be strictly construed, and where such statute requires the doing of some particular thing, in its nature jurisdictional, as a condition precedent to the right to impose such burden, the failure to do the thing required will render the whole proceeding void. In matters of local improvement, however, where jurisdiction over the whole subject is conferred upon a municipal corporation, with power to make local assessments for that purpose, any failure to comply styictly with any statutory requirement, not affecting the jurisdiction, will be regarded as a mere irregularity, and in a collateral proceeding will be disregarded.</p> <p>Same. — Common Council. — Order for Proposed Improvement. — Sature of. — Sow. far Binding. — An order entered by the common council of a city to make a particular improvement, is not in the nature of a judgment. It is a mere preliminary step, looking to a public improvement to be made or not, as the common council in its discretion may determine, from which it may recede at any time before the contract for the improvement is concluded.</p> <p>Same. — Local Improvement. — Statutory Requirements Concerning. — Attempt of Municipality to Comply with.— When Proceedings not Void. — Where the whole subject of the matter of local improvement, and the assessments to be made in aid thereof, is conferred upon municipal corporations-having charge of, and exclusive original jurisdiction over, such improvement, as in this State, the proceedings of such corporation will not beheld void where there has been an attempt to comply with a statutory requirement, though such attempt does not amount to a strict compliance with the statute, if the corporation, in addition to its jurisdiction, over the subject-matter, acquires jurisdiction over the persons to be affected. In this case there was an attempt to comply with the statute. A petition was filed, the resolution declaring the necessity for the improvement was adopted, and the statutory notice was given.</p> <p>Same. — Secessity of Proposed Improvement. — Common Council Must Determine. —Matter of Benefits and Costs. — Right of Property-Owners to he Seard as to.— Sections 6 ay,d 7, Acts 1889, pp. 848-H, Construed. — As to whether or not a particular improvement is -necessary, must, of necessity, be left to the discretion of the common council of the city where the improvement is to be made. This question, under the statutes in force in this State, may be determined by such council, without notice to the property-owner who is to be affected by such improvement. Assessments to pay for the improvement are made upon the assumption that the property affected is benefited in a sum equal to the cost. But whether or not such improvement benefits the property in a sum equal to its cost, is essentially a judicial question, upon which the property-owner is entitled to notice and a hearing. Sections 6 and 7, Acts 1889, pp. 242-3, provide for such notice to be given to the owners of property abutting upon a street to be improved, and afford them an opportunity to be heard on the question of benefits.</p> <p>Statute. — Construction of. — Legislative Intent. — How Ascertained. — In the construction of a statute the court will seek to discover and carry out the intention of the Legislature in its enactment. In the search for that intention the court will look to each and every part of the statute; to the circumstances under which it was enacted; to the old law upon the subject, if any; to other statutes upon the-same subject, or relative subjects, whether in force or repealed; to contemporaneous legislative history, and to the evils and mischiefs to be remedied.</p>

<p>Will. — Contest of. — Pleading.—Complaint.—Copies of Deeds, etc., Set Out in Will. — Surplusage.—In an action under section 2596, R. S. 1881, to contest the validity of a will, it is not necessary to set out with the complaint a copy of the will, and hence it is unnecessary to set out copies of deeds, or writings, referred to in the will, and if they are so set out they may be properly struck out on motion.</p> <p>Same. — Demurrers for Misjoinder. — ,General Statute as to Does Not Apply.— Such action being a special proceeding, the general statute as to the joinder of causes of action, and a demurrer for misjoinder, and providing for causing actions improperly joined to be separately docketed, does not apply to the extent of making it error to strike out of a complaint to contest a will surplus matter, even though it might state a cause of action for some other purpose.</p> <p>Same.— Will and, Probate. — Admissibility of in Evidence. — In an action to contest a will, on the ground of the unsoundness of mind of the'testator, it is not error to admit in evidence the will, and probate thereof, although the probate contains the ex parte affidavit of one of the witnesses, stating that the testator was of sound mind at the time of the execution of the will. Where the record of a will is offered in evidence the probate and will can not be severed, and the will admitted and the probate rejected.</p>

<p>Tbust. — Conveyance to One but Consideration Paid by Another.— When Trust Results. — Where a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust results in favor of the latter, unless the grantee shall have taken the conveyance in his own name without the consent of the person with whose money the consideration was paid, or unless it shall be made to appear that by agreement, without any fraudulent intent, the person to whom the conveyance was made, was to hold the land in trust for the one paying the purchase-money. Sections 2974, 2976, R. S. 1881.</p> <p>Same. — Evidence Insufficient to Establish. — Where it appeared that a son a single man, living with and working for his father, bargained for and paid the purchase-price of real estate the title to which was taken in the father’s name, but it was not certain that the money paid was not earned in the father’s service, and the evidence was not satisfactory that the father ever acknowledged the trust, and it did not appear who took possession, or that the son asserted ownership during his father’s lifetime, a finding by the court that there was no agreement to hold the. land in trust for the son’s benefit will not be disturbed.</p>

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

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

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

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

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

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

<p>Execution. — Actual Value of Properly Sold. — Amount Realized Conclusive Evidence of. — Where property is regularly exposed to sale on execution, there being no fraud or irregularities in such sale, the amount realized must be taken as conclusive evidence as between the parties interested of the actual value of such property.</p> <p>Principal and Surety. — Release of Surely. — Satisfaction of Judgment.— Value of Property. — M. recovered judgment upon a promissory note, which judgment became a lien upon the real estate of one of the sureties, subject to a mortgage by which it was encumbered. M. purchased the mortgage, and at a sale upon a decree of foreclosure purchased the real estate for less than the mortgage indebtedness.</p> <p>Held, that such purchase did not operate as a satisfaction of the judgment, although the property was, in fact, of value more than sufficient to pay the judgment and the lien of the mortgage. The amount realized at the sale must be taken as conclusive evidence of the value of the property as between M. and the sureties. Sanders v. Weelburg, 107 Ind. 266, modified.</p>

<p>Assessment oe Damages. — Application of Land-Owner. — Railroad.—Right of Way. — Amendment of Description of Land. — Right to Amend After Reversal. — Where an application was made for a writ for the assessment of damages on the ground that a railway company had located and was about to proceed with the construction of its road across the petitioner’s land, without having made or tendered any compensation for the accruing damages, and a judgment for damages in pursuance of the application thus made was reversed, because the description of the land appropriated, as required by the statute, was not sufficiently precise, it was proper for the court below, when the case came back, to grant leave to amend the description of the land appropriated, as the same was set forth in the application and writ. Proceedings such as these are amendable in matters of description so long as they remain in fieri.</p> <p>Same. — Exceptions to Amount of Damages.— When may be Filed. — Appeal.— Where exceptions are filed by either party within ten days after the filing of the award provided for in section 3907, R. S. 1881, or the inquest provided for in section 896, R. S. 1881, an appeal is thereby ■effected, and the case then stands for amendment, or for the filing of ad- . ditional exceptions, or the making of new issues, the same as in any other action. An appeal having been effected within ten days, by the filing of exceptions, it was not error to permit the opposing parly to file exceptions to the amount of damages awarded, after the expiration of ten days, and after the cause had come back to the trial court upon reversal in the Supreme Court.</p> <p>Same. — Appropriation of Land. — Consent of Owner to. — Effect of cm Recovery of Damages. — A land-owner who consents to the appropriation of his land by a railroad company, is not precluded from seasonably instituting proceedings for the amount of his damages.</p> <p>Same. — Assertion of Claim for Compensation.— When Must be Made. — Statute of Limitations. — The claim for compensation must be asserted within the statute of limitations. After that period has elapsed, it will be conclusively presumed that the damages were assessed and paid, or that they were waived. As long as the owner of land, over which a railway company is seeking to obtain the right of way, retains complete possession and control of the same, the statute of limitations does not begin to run against his right of recovery for damages. When a railway company finished its grade on the petitioner’s land, in 1873, but the landowner retained complete possession and control of the land until 1885, when the defendant having acquired the rights of its predecessor, took possession, commenced laying ties, and otherwise equipping the road for use, a proceeding then instituted for the assessment of damages was seasonably brought.</p>

<p>Pleading. — County Work. — Action on Contractor’s Bond. — Copy of Contract with County.— Unnecessary to File with Complaint. — In an action instituted by a subcontractor against one who had contracted to build a county asylum, and the sureties on his bond, for failure to pay the plaintiff for work and labor done, and materia] furnished in the course of the erection of said building, it is not necessary to set out in the complaint a copy of the agreement between the contractor and the county commissioners. The suit is founded upon the bond executed by the contractor and his sureties, and not upon said agreement. It is only necessary to set out with the pleadings such instruments of writing as constitute the foundation of the action, or defence.</p> <p>Contractor’s Bond. — County Work. — Changes in Contract with County.— Laborers and Material Men Unaffected Thereby. — Changes made by a contractor and the board of county commissioners in the course of the erection of a county building, without the consent of the laborers or material men employed thereon, will not deprive the latter of a right of action on the contractor’s bond. The bond required of him by statute is required for their benefit and security.</p>

<p>Guardian and Ward. — Action Against Guardian.— When Must he Brought After Ward’s Majority. — Statute of Limitations. — The right of the ward to maintain an action against the guardian for failure to account for money due the ward, is barred in six years from the time the ward becomes of age.</p>

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

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

<p>AnimAIi.-Sunning at Large. — Action for Personal Injuries. — Vicious Disposition of Animal. — Complaint.— What it Must Aver. — In an action to recover damages for personal injuries sustained by the plaintiff by being attacked by a cow belonging to the defendant, which he permitted to run at large, a complaint is defective that fails to allege that the animal possessed a vicious disposition, or propensity, which inclined it to attack mankind. Without such allegation there is necessarily no charge that the defendant had notice of any such evil disposition. And as the wilful conduct of the animal in attacking the plaintiff was not such as the defendant had a right to expect, or might anticipate, he is not responsible for the injury caused by such unexpected and wilful conduct.</p> <p>Same. — Owner of Domestic Animal. — -Duty of to Keep Confined. — Failure to Do So.— When Liable for Damages. — The common law is in force in this State, except so far as domestic animals are permitted to run at large by the board of commissioners, as provided in section 2637, R. S. 1881, and it therefore becomes the duty of the owner to keep them confined to his own premises. The owner of a domestic animal, however, is not liable because of a negligent failure to keep it confined on his own premises, except for the consequences which may he anticipated because of its well-known disposition and habits, unless it is possessed of a vicious disposition, of which he had notice.</p>

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

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

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

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

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

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

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

<p>Life Insurance. — Assignment of Policy to Creditors. — Agreement as to Surplus. — Validity of. — Rights of Widow and Children to Surplus. — A. in his lifetime procured a policy of insurance upon his own life, payable on his death to his executors, administrators, or assigns. Afterward, with the consent of the company, he assigned and transferred, by endorsement in writing, said policy to certain creditors, and delivered the same to them, taking back from said assignees an agreement in writing to keep up said insurance, and upon’ his death and the payment to them of the amount due them, with interest and all premiums paid, and expenses incurred on account of said insurance to pay the balance to his heirs, or to his order. A. died without giving any further order as to the disposition of the proceeds of the policy. The assignees paid the premiums, and kept up the policy. After reimbursing themselves a balance remained, which was paid to the administrator. The widow and children of A. filed a petition, asking an order upon the administrator to pay said sum to them. The petition was resisted by an unsecured creditor of A.</p> <p>Held, that the widow and children were entitled to the money ; that the assignment of the policy was not in fraud of creditors, and was valid, and transferred the surplus to A.’s heirs.</p> <p>Same. — Insolvent Debtor. — Insurance for His Family. — The law favors the making of a reasonable provision by a man for his family, and those who are dependent upon him, and it is not a violation of the statute, and in fraud of creditors, for a debtor, though insolvent, to contribute and pay a reasonable amount of insurance for the benefit of his family.</p> <p>Same. — Pleading.—Agreement with Assignees. — Proper Exhibit with Complaint. —The agreement taken by A. from the assignees of the policy was properly made an exhibit to the complaint filed by his widow and children to recover the balance in the hands of the administrator. The action is properly an application to the court for an order requiring the administrator to turn over to the petitioners the money received on the policy, and the said agreement is the basis of their right to have such an order made.</p> <p>Same. — Transfer of Policy. — Sufficiency of. — Surplus.—Liability of Assignees as to. — The' transfer of the policy by A. was complete. It was assigned by an endorsement in writing, and delivered. The agreement taken from the assignees provided, in effect, that any surplus remaining should be paid to A.’s heirs, unless he made some further order in regard to it. When he died without making any further order the legal liability of the assignees was to pay the surplus to his heirs.</p>

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

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

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

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

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

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

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

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

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