Volume 126 — Indiana Reports

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

<p>Municipal Corporation. — Sale of Intoxicating Liquor.— Validity of City Ordinance. — Defence.—Pleading.—In an action for the violation of a city ordinance the complaint charged that the defendant, on the 4th day of July, was in charge of a certain place wherein intoxicating liquors were sold on secular days to be drank on the premises, and that he suffered a certain person to enter said place on said day in violation of certain sections named of a city ordinance.</p> <p>Held, on demurrer, that the complaint was sufficient. Under section 3066 R. S. 1881, it is sufficient to recite the number of the sections violated, without filing a copy of the ordinance. The defendant must, if he claims that such ordinance is invalid, bring the question of invalidity forward by way of defence, and not by demurrer to the complaint.</p>

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

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

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

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

<p>Contempt. — Disobedience of Subpoena Requiring A Itendance of Witness Before Grand Jury. — Attachment.— Recognizance. — Action Upon.— Continuance.— Overruling Motion For. — Where an action upon a recognizance given by one under arrest upon an attachment for contempt was commenced in the April term of the Grant Circuit Court, and before the close of the term the defendants appeared and the cause was continued; and thereafter, at the September term, they moved for a stay of proceedings in order to make an application to the Blackford Circuit Court, in which the entry of forfeiture was made, to set aside such entry, such motion was properly overruled. The Supreme Court will take judicial notice of the fact that there was an intervening term of the Blackford Circuit Court between the April and September terms of the Grant Circuit Court, and the defendants, had they been diligent, might have made their application to that court, and had a hearing before the commencement of the term of the Grant Circuit Court, at which they made their motion,</p> <p>Sajie. — Recognizance.—Fntry of Forfeiture. — Gondition Precedent to Suit.— Defence. — While such entry of forfeiture was a condition precedent to a suit upon the recognizance by the State, it was not a hindrance to a complete defence by the defendants, if for any reason they were not liable.</p> <p>Same.— Witnesses Before Grand Jury. — Authority of Glerh to Issue Subpoenas For. — Statute.—While there is no statute which, in express language, directs the clerk of the court to issue subpoenas for witnesses to appear before the grand jury, by implication from sections 1797,3 858,1682,1671, 1785,1417,1664, and 5854, R. S. 1881, the authority clearly appears, and the court may punish for contempt one who disobeys such subpoena.</p> <p>Same.— Proceedings for. — Section 10IS, R. S. 1881, Regulating.— Section 1013, R. S. 1881, regulating proceedings for contempt, has no application to an attachment for contempt of one who disobeys a subpoena commanding him to appear before the grand jury as a witness. Section 1014 expressly excepts witnesses subpoenaed to testify in any case, civil pr criminal.</p> <p>Same. — Attachment.—Authority of Sheriff to Take Recognizance. — Section 1705, R. S. 1881, confers upon the officer authorized to execute a warrant in a criminal case the authority to take the recognizance of the person named in the warrant. An attachment for contempt is a warrant in a criminal action, within the meaning of said section, and the sheriff has authority to execute it, and accept bail in the sum fixed by statute.</p>

<p>Guardian and Ward.— Ward’s Personal Property. — Guardian may Mam~ tain Action of Replevin. — The guardian has the right to the custody of the personal property owned by the ward, and may maintain an action for its possession.</p>

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

<p>Sale. — Public Auction. — Non-Compliance with Terms of Sale. — Tender of Money Instead of Note. — Title.—Ileplevin.—One who purchases at a public sale, made pursuant to a public notice, presumptively purchases upon the terms proposed. And where a purchaser at such sale refuses, in compliance with his agreement, to execute an interest-bearing note, payable eight months after date, for the amount of his bid, as required by the terms of sale, but afterwards makes a tender of money, which is refused, the seller retaining possession of the property, such purchaser can not maintain replevin. The tender of money being insufficient, the change of ownership was not complete.</p>

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

<p>Elections.— Votes Cast for Ineligible Candidate. — Votes cast for a person not eligible to an office can not be counted against tlie opposing candidate who is eligible; and such candidate, though receiving a less number of votes, is duly elected and entitled to the office.</p> <p>Same. — Time of Holding. — Judicial Notice. — Pleading.—The Supreme Court will take judicial notice of the time fixed by law for holding elections, and a complaint in a proceeding to compel the county auditor, by mandate, to accept the official bond of a township trustee duly elected, is not bad for failing to allege when the regular election was held.</p> <p>Mandamus. — Township Trustee’s Bond. — Approval of by County Avditor. — Mandate will lie to compel the county auditor to accept and approve the official bond of a township trustee duly elected.</p> <p>Same. — Amount of Bond. — Sufficiency of Complaint as to. — Demurrer.—Where a complaint, in a mandamus proceeding to compel the county auditor to approve the bond of a township trustee duly elected, avers that the relator tendered to the auditor a good and sufficient bond, without alleging that the bond tendered was in a penalty double the amount of money likely .to come into his hands in any one year during his office, it is good against a demurrer. If the complaint was uncertain, the remedy washy a motion to make it more specific.</p> <p>Same. — Proof of Identity and Election. — Complaint.—Answer.—An averment in the answer that at the time the relator furnished his bond he presented no proof of his election or identity is not equivalent to an averment that he was not personally known to the defendant, and that the defendant did not know that he had been duly elected to the office of trustee.</p>

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

<p>IVIARRIiSD WoMAN.- Separate Real Estate.-F~wer to Eiwumber.-C'onfiiet of Iawa-Lez Si1us.-Th~ power, or capacity, of a married woman to convey or encumber her separate real estite is to be determined by the law of the place where the property is situate, and this rule applies to questions of infancy,covertnre, majority, and of legal capacity generally. Statutes which either give or destroy capacity to contract have, as a general rule, no eetra-territorial force where the particular contract involved relates to the conveyance or encumbering of real estate situate in a foreign jurisdiction.</p> <p>SAM~.-SeparaieProp~r1y. -Discharge of Lien Upon.-Mortqage.-Lien.- A mortgage ezecuted in Kentucky by a husband and wife on the wife's separate. real estate in Indiana, to secure the repayment of money borrowed for the purpose of discharging prior encumbrances on the ~ separate real estate constitutes a valid</p>

<p>Deed. — Delivery.—Evidence Insufficient to Establish. — A. after signing and acknowledging deeds conveying land to two of his sons placed them in a box in a room which he occupied with the family of one of them. While the deeds were in the box, in the absence of the father, and without his consent, the sons opened the box and read the deeds but did not take them. He never told either of his sons that the deeds were in the box, gave the grantees no authority to take them from the box, nor told them they were entitled to do so. He made no effort to deliver the deeds, and at no time did they pass out of his control and under the control of the sons or any one in their behalf. After his death the deeds could not be found.</p> <p>Held, that there was no delivery.</p>

<p>Constitutional Law. — Selling Uwmspeeted Meats. — Act Prohibiting. — Unconstitutionality of. — The act of March 2d, 1889 (Acts 1889, p. 150), entititled “An act for the protection of the public health by promoting the growth and sale of healthy cattle and sheep, making it a misdemeanor to sell the same without inspection before slaughtering within this State, and to authorize cities to appoint inspectors,” is in violation of the Constitution of the United States, and void.</p>

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

<p>Intoxicating Liquob. — Unlawful Sale, — Beer. — Sufficiency of Affidavit.— In a prosecution under section 5320, JR. S. 1881, for the sale of intoxicating liquors without a license, an affidavit charging the defendant with the unlawful sale of beer is not subject to the objection that it does not charge the sale of malt or intoxicating liquor. Beer is a malt liquor, and is, by the statute (section 5313,JR. S. 1881), declared to be an intoxicating liquor.</p> <p>Same. — Ohio River. — Jurisdiction.—Where the Ohio river constitutes the boundary between the States of Kentucky and Indiana, low-water mark on the north side of the river is the southern boundary of the State of Indiana; but under sections 1 and 2, article 14, of the State Constitution, and an act of the Commonwealth of Virginia, entitled “An act concerning the erection of the district of Kentucky into an independent State,” 1 Rev. Laws of Virginia, p. 57, the State of Indiana has concurrent jurisdiction in civil and criminal cases with the State of Kentucky on the Ohio river, as far as said river forms the common boundary between said States.</p> <p>Same. — Sale of on Ohio River. — Indictment.— Venue. — Where a violation of the criminal laws of this State, occurs on the Ohio river it is proper to charge in the indictment that the offence was committed in the county opposite the place where the act was committed constituting the crime; and hence, where intoxicating liquors are sold without license in a boat anchored in the Ohio river opposite Harrison county, Indiana, south of low-water mark on the Indiana side, the offender may be charged, tried and convicted in Harrison county, Indiana.</p> <p>Same. — Absence of Provision Granting License to Sell on Ohio River. — Sale Without License. — The fact that no provision is made by law for granting a license to sell intoxicating liquors upon the Ohio river does not authorize the sale thereof without a license.</p> <p>Same. — License Law. — Constitutionality of. — The license law providing for the granting of license to retail intoxicating liquors, requiring that the vender shall be a male inhabitant of the State, is not in conflict with that section of the Constitution of the United States which provides that “ The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States.”</p> <p>Instbuctions to Juey. — Request for Made after Argument Begun. — Refusal of. — An objection that the court erred in refusing to instruct the jury in writing, as requested, will not avail on appeal where it does not affirmatively appear by the record that the request was made before the commencement of the argument in the cause. 8</p> <p>Cbiminai, Law. — Instruction.—Fine.—Costs.—In a prosecution for the unlawful sale of intoxicating liquors, an instruction requested that “ If you should find the defendant guilty, as charged, you may, in your discretion, return a verdict assessing a fine against him, and also find that he shall not pay the costs of this prosecution,” may be properly refused. In such a case it is not discretionary with the jury to fine, or not to fine, the defendant, but they must assess a fine against him of not less than the prescribed amount; nor is it a matter of mere arbitrary discretion with the jury to relieve a defendant, found guilty, of the payment of costs, but a reason for so doing must be shown.</p> <p>Same. — Discharge of Jury. — Instruction Ordering Acquittal, of Defendant. — In a criminal prosecution an instruction requested placing the right of the defendant to an acquittal upon the mere fact that a jury had been empanelled, without any regard to the facts which may have led to their discharge, is erroneous.</p> <p>Same. — Reception of Verdict. — Absence of Accused. — An objection in a criminal case that the trial court erred in receiving the verdict of the jury in the absence of the defendant, will not be available on appeal for a reversal of the judgment where it does not affirmatively appear by the record that the defendant was in the custody of the sheriff, and it does not appear, except by inference, that he was not present in court at the time the verdict of the jury was received.</p>

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

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

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

<p>Deed. — Construction.—Buie in Shelley’s Case. — N. E. conveyed to his mother certain real estate “ during the term of her natural life, and to descend to her heirs in equal portions, the said N,, the maker of this deed, included, after death.” The covenants of warranty were with the grantee and her heirs.</p> <p>Held, that the deed was governed by the rule in Shelley’s Case, and that the grantee took an absolute title in fee.</p>

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

<p>Bill of Exceptions. — Date of Presentation. — "Where the time limited for the presentation of the bill of exceptions expires on the 16th day of May, and the date of presentation as stated in the bill is the 1st day of June, the bill is not properly in the record, although following the signature of the judge is a memorandum to the1 effect that the presentation was made at the proper time, as the time stated in the bill controls.</p> <p>Seduction. — Pecuniary Condition of Defendant. — Evidence.—In an action for seduction evidence of the pecuniary condition of the defendant is admissible.</p> <p>Appeal. — Misconduct of Counsel. — Failure to Boise Question of. — After the close of the evidence, and during the argument, counsel for the plaintiff stated to the court, in the presence of the jury, that he had a witness in court by whom he could prove that two witnesses who testified against his client had admitted the falsity of their evidence. He offered to interrogate the witnesses, whereupon the court, upon objection, excluded the testimony.</p> <p>Meld, that the defendant having made no objection to the statement at the trial, and there being no decision of the court to which exception was taken, no question as to the misconduct of counsel was presented on appeal.</p>

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

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

<p>Pleading.— Verification of. — Heirs and Others not Parties to Instrument.— Where an instrument is the' foundation of, or is referred to in a pleading in an action against parties other than those who are alleged to be parties to it, a joint answer by all or any number of defendants denying the execution, verified by the oath of any one of the defendants, puts the plaintiff upon proof of the execution of the instrument as against all those who join in the answer. The rule that all who are parties to an instrument which is the foundation of a pleading, should verify a plea denying the execution of the instrument in order to require proof of its execution, will not be extended to heirs or other persons. not parties to the instrument.</p> <p>Evidence. — Disputed Signatwe. — Comparison.—In order to determine the genuineness of a signature a comparison may be made between a signature that is admitted by the opposite party to be genuine, and is already in evidence for some other purpose, and has thus become subject to examination by the jury, and the signature whose genuineness is in question.</p> <p>Same. — Time,—Judicial Notice. — Courts take judicial notice of the days on which fall Sundays and holidays, and the court may properly charge the jury that certain dates fall on Sunday.</p> <p>.Instructions to Jury. — Equity Cases. — In equity cases general instructions as to the law applicable to the facts of the case are not proper, and the giving, or refusal to give, instructions of a general nature is not available error.</p>

<p>Set-Off. — Action on Note. — Assignment.—In an action on a note executed by the defendant to the plaintiff’s endorser, a note of the endorser which the defendant had contracted to purchase from the payee, but which was not delivered until after the defendant had received notice of the endorsement to the plaintiff, is not available as a set-off.</p>

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

<p>Sale.— What Constitutes. — Bailment.—Wheat was delivered to dealers in grain, to be paid for in twenty or thirty days, at whatever price prevailed. The wheat was placed in railroad cars, and not in the warehouse of the dealers.</p> <p>Held, that this was a sale, and not a bailment.</p>

<p>Execution. — Judgment for Costs. — Interest.—Injunction.—A judgment for costs draws interest. Where an execution' has been issued on a judgment for costs the collection of such execution will not be enjoined on the ground that the execution is for a greater sum than the costs taxed, where the interest on the judgment remains unpaid.</p>

<p>Railkoad. — Personal Injuries. — Passenger Hiding cm Free Pass. — Right of Recovery. — Carrier’s Liability for Negligence. — Common carriers are subject to the same liability for injuries resulting from negligence to persons riding on a free pass as they are to those who pay full fare. The right of the carrier to limit the severity of his common law liability by special contract is well settled, but does not extend to acts which result from his negligence, or the negligence of his employees.</p> <p>Same. — Pleading.—Answer of Settlement and. Release.— When Reply to Need Not be Verified. — Sufficiency of Reply to Avoid Settlement. — Where, in an action against a railroad company to recover damages for personal injuries, the defendant pleaded a settlement and written release of the cause of action, to which the plaintiff replied his mental incapacity at the time of the execution of the release and the making of the settlement, and his refusal to receive the money, and notice to the company that he disaffirmed the settlement before the institution of suit, the reply need not be verified. It admitted the execution of the release upon which the defendant relied as a defence, and was not, therefore, a plea of non est factum. The facts pleaded were abundantly sufficient to avoid the settlement and release.</p> <p>Same. — Consideration of Settlement and Compromise. — Restoration of as Pleaded. —Effect of. — Where the consideration for a settlement and compromise, as pleaded, has been fully restored, the defendant can not complain that there was yet an additional consideration besides that relied on in the answer, which has not been restored. A party is not bound to make proof of the avoidance of a defence any broader than the defence pleaded.</p> <p>Same. — Collision Between Trains. — Presumption as to Negligence. — JHow Overcome. — Where trains carrying passengers are brought into collision with other trains, the passenger is not put to the impossible task of proving negligence. The presumption of negligence arises from the collision against the railway company, and it assumes the burden of overcoming the presumption by proof that the accident happened notwithstanding the highest degree of care and prudence on its part.</p> <p>Same. — Exercise of Due Care by Carrier. — Where the jury found that while the train on which the plaintiff was being carried was ascending a steep grade a number of the cars, including the caboose in which the plaintiff and others were seated, became detached from the engine and the forward part of the train, and the detached cars running backward came in collision with the engine of an advancing train, which was following the forward train at an interval of only eight minutes, and which could not be seen from the forward train, it can not be said, as a matter of law, that the railroad company was exercising due care in running trains up a steep grade, on a curved track, where one train could not be seen from the other, without a greater interval between them.</p>

<p>Mortgage. — Junior Mortgagee. — Payment of Senior Mortgage. — Subrogation. —Where a junior mortgagee pays off a senior mortgage in order to protect his lien, the payment does not extinguish the older mortgage, but it will be kept alive by equity for the protection of the mortgagee.</p> <p>Same. — Mechanic’s Lien. — Priorities.—Subrogation.—The purchaser of lots one and two, to secure the purchase-money, executed a mortgage on said lots, which was recorded January 7th, 1884. The purchaser, as he supposed, took possession of lots one and two, and on April 30th, 1884, began the erection of a house. Various persons sold to the purchaser materials to build the house; notices of their intention to hold liens were filed, and in a suit to foreclose the liens a decree was rendered in which it was declared that the liens attached as of the 'date of April 1st, 1884. During the time the purchaser was erecting the house referred to it was supposed that he was in possession of lots one and two ; but on July 24th, 1884, it was discovered that he had erected the house on lots one and six. The purchaser, who had not then recorded his deeds to lots one and two, surrendered it to the vendor, and took a deed for lots one and six, and at the same time executed a purchase-money mortgage. The vendor transferred the note and mortgage, the transferrees holding a part of the mechanic’s liens referred to. The plaintiffs, to whom the purchaser executed a mortgage for the property after the execution of the purchase-money mortgage, were compelled to pay the senior mortgage held by the transferrees to protect their junior lien. The transferrees, upon receiving the amount due on their mortgage, delivered it to the plaintiffs.</p> <p>Held, that the plaintiffs became subrogated to the rights of the owners of the senior mortgage, and that such owners were not in a position to defeat the plaintiffs, from whom they accepted payment of the senior mortgage, by setting up the mechanic’s liens held by them at the time of the payment o'f the mortgage, and of which they averred the plaintiffs had notice.</p> <p>Pleading. — Complaint.—Lemmrer.—A complaint which shows the plaintiff entitled to some relief will prevail against a demurrer.</p>

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

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

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

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

<p>Judgment. — Against Sureties. — Confession of. — Duress.—Threats made by an agent to the sureties on bonds executed to his principal, the condition of which had been broken, that unless they executed a power of attorney, authorizing an attorney to confess judgment, he and his principal would pursue the bonds to judgment, with attorney’s fees, do not constitute duress, and a judgment confessed in virtue of the power of attorney so obtained will not be annulled.</p> <p>Same. — Equitable Belief.— When Plaintiff not Entitled to. — One who seeks equitable relief from a judgment alleged to have been improperly rendered, but who does not show that he has paid the amount for which it is conceded he was liable, or that he had a good defence, or was prejudiced because of the manner in which the judgment was rendered, will not be afforded such relief.</p>

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

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

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

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

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

<p>Usage. — Proof of not Competent to Alter Express Terms of Contract. — By a written agreement between a packing company and the plaintiff the latter undertook to cultivate, during the proper season, a certain number of acres in tomatoes, and deliver all of the product, as it ripened from day to day, to the former. The company agreed to receive, unload and weigh all the tomatoes to be raised “ on usual- business hours, from 6 o’clock on Monday morning till 10 o’clock on Saturday morning of each week during the season,” at a stipulated price. The plaintiff sued the company, alleging that it had exposed itself to the stipulated forfeiture by failing to attend at its place of business and receive, weigh and unload the tomatoes offered according to the terms of the contract. There was evidence that for six years prior to the making of the contract, under a contract in substantially the same language as that sued on, in , respect to the time of receiving and weighing the vegetables, the company’s warehouse had not been opened for receiving and weighing tomatoes until 7 o’clock in the morning.</p> <p>Held, that it was not competent to displace or alter the express stipulation in the contract that the tomatoes were to be received and weighed during usual business hours, from 6 o’clock in the morning, by proof of a usage by which during former years the warehouse was not open for the reception of tomatoes until 7 o’clock in the morning.</p> <p>Same. — Evidence of when Admissible. — The purpose for which evidence of a usage is heard is to explain or illustrate the intention of parties to a contract in reference to matters concerning which the contract is not explicit, thereby importing into the contract terms not inconsistent with any of its provisions; but where the contract is clear and explicit resort can not be had to proof of a usage which would contradict or supersede any of its terms.</p>

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

<p>Crimrtai, Law. — Rape.—Character of Resistance Necessary. — Where a woman is not of unsound mind, and has reached the age fixed by law as that at which there is capacity to consent, the crime of rape is not made out unless it appears that there was actual resistance, or that resistance was prevented by violence, or restrained by fear. Whitney v. State, 35 Ind, 503, disapproved.</p> <p>Same. — Evidence.—In a prosecution for rape it was competent to prove that the prosecutrix came in a cheerful manner, and hand in hand with the accused, from the place where the rape was alleged to have been perpetrated. The testimony was competent as tending to authorize the inference that' no outrage had been perpetrated, and also as affecting the credibility of the prosecutrix.</p> <p>Same. — Impeachment of Witness. — Character of Accused. — How May Not be Attached. — It was not competent to impeach the witness so testifying by attempting to show that she had made a statement derogatory to the character of the defendant. Such a statement, if made, would not tend to contradict her testimony. The opinion of a witness as to the character of an accused can not be given through the medium of an impeaching question, or that of impeaching evidence.</p>

<p>-Gravel Boad. — Construction of under Act of 1869. — Money Advanced. — Collection of Assessments under Act of 1877. — Conversion of by President. — Eight of Action of Lender. — A gravel road company was incorporated under tlie act of May 14th, 1869. Lands were assessed for the construction of the road and the assessments placed on the tax duplicate for collection prior to 1875. S. and M., in anticipation of the collection of the assessments, agreed with the directors of said company to advance to it, and did advance to it, certain sums of money to he expended- in the construction of said road, and which were so expended. In 1875 the Legislature repealed said act of 1869 without any saving clause so far as it authorized the levying and collection of said assessments, but in 1877 the act of 1869 was revived as to such assessments placed on the tax duplicate prior to the passage of the act of 1875, in cases where the directors of such companies had incurred liability on account of such assessments in the construction of the road.</p> <p>Meld, that the president of the gravel road company, who collected said assessments in accordance with the provisions of the act of 1877, held said fund as a trustee for the creditors who had advanced the money to construct the road on the faith of said assessments, and any diversion of the fund into other channels was a conversion which rendered him directly liable to the cestui que trust.</p> <p>Same. — Statute of Limitations.— When Gause of Action Accrued. — Until the president of the graVel road company received and converted the fund, or refused to apply it on request, there was no right of action. Even if the company, in an action agaijnst it by the plaintiff could have successfully invoked the statute of limitations as a defence to the action, such defence was not available to the defendant. The statute, by virtue of which the president of the company collected the assessment, makes no distinction as between debts barred by the statute of limitations and those not barred. All creditors representing claims falling within the provisions of the statute were alike beneficiaries arising from the payment of the assessments.</p> <p>Same. — Company not Necessary Party to Action. —The gravel road company had no interest in or claim upon the said fund collected by its president, and it was not necessary to make the company a party to an action instituted by the plaintiff for the conversion of said fund by the president to his own use.</p> <p>Same. — Consideration Paid for Indebtedness. — Immateriality of. — The consideration paid by the plaintiff in purchase of the indebtedness sued upon was wholly immaterial; the holders of the claims might have given them to him had they seen proper, and it would have been no concern of the defendant and no defence to the action.</p>

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

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

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

<p>Set-Off. — Of Notes and Judgments. — Exemption from, Execution. — A debtor may rightfully claim a note as exempt from execution, although the maker of the note may hold notes or judgments against him, and in a suit by the debtor on the note the maker can not defeat the exemption law by setting off against the note sued on a note executed by the debtor, or a judgment rendered against him.</p>

<p>Promissory Note. — Action cm. — Pleading.—Answers Alleging Want of Consideration. — Sufficiency of. — In an action on a note the first paragraph of answer alleged an entire want of consideration, and the second, pleaded as a partial answer, alleged a want of consideration as to part of the amount. Each paragraph alleged notice to the endorsee when it purchased the obligation and paid the consideration.</p> <p>Heid, that the paragraphs were good as against a demurrer.</p> <p>Same. — Fraud. — Consideration Without Value. — Rescission. — Pleading.— Where the answer in an action on a note alleged that the defendant was induced by fraud to execute the obligation, and that the consideration received was entirely without value, an averment of an offer on the part of the defendant to rescind the contract was unnecessary, and the answer was good notwithstanding the absence of such averment.</p> <p>Same.— Tender of Performance. — A defendant sued on a note answered that he was induced by fraud to execute such note, and that the consideration received was entirely without value, and it appeared that the conditions of a bond which formed part of,such consideration could be performed only by the perpetration of a fraud like that practiced upon the defendant.</p> <p>Held, that such defendant was not bound to tender performance of his part of the obligation.</p> <p>Same. — Purchaser of. — Inquiry by. — While a bank or person purchasing commercial paper, tainted with fraud, is bo'und to show the payment of a valuable consideration, and to rebut notice of the fraud, such purchaser is not called upon to make inquiry of the maker,.or holder, as to the circumstances under which the paper is executed, unless there is something about the paper itself, or the circumstances under which it is presented, to excite suspicion.</p>

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

<p>Execution. — Judgment Against Husband. — Sale of His Undivided Two-Thirds Interest in Real Estate. — Collateral Attach by Judgment Creditor.— Wife’s Interest. — Where a judgment is recovered against the husband and a writ of execution is issued and levied on, the undivided two-thirds of a certain piece of real estate owned by the husband, whose wife was living at the date- of the rendition of the judgment, and the issuance and levy of the execution, and the sale thereunder, the title of the purchaser at such sale can not he successfully attacked in a collateral proceeding by a judgment creditor of the husband, whose judgment was recovered on the same day, and who subsequent to the first sale levied upon all of the land and became a purchaser under said levy. Whether the sale of the undivided two-thirds of the land was strictly regular or not is unimportant. It covered the judgment debtor’s actual interest, and is not absolutely void as against a judgment creditor. A judgment creditor can not successfully object to a sale because of irregularities.</p>

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

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

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

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

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

<p>Advancements. — Mining Stock Charged to Children.— When not Considered, as Advancements. — A. charged certain shares of mining stock which he had purchased against two of his daughters. He also charged them with assessments made on said stock from time to time, and paid by him, and credited them with the amount of a dividend on said stock, received by him and paid by him to them. These shares, together with other shares, were held by the Bank of California for the account and in the name of said A., as trustee, and were never in the actual possession of said A. Subsequently to the charging of said shares against his daughters, the bank upon the written order of A. delivered to one M. all the shares held by said bank for A., as trustee, including the shares charged against his daughters. M. sold all of said shares and invested the proceeds thereof in other mining stocks. Afterward, upon the order of A., M. borrowed money upon the shares last purchased for the purpose of making, and did make, additional purchases of mining stock. The stocks thus pledged for loans, and those purchased with the borrowed money, were afterwards sold by the pledgees to pay the loans, and nothing was realized over and above the amount of said-loans. No shares of stock were ever delivered to either of said daughters, nor did they ever have the possession of or exercise any control over the same, or have anything to do with the disposition of said stock.</p> <p>Meld, that the shares of stock so charged against said daughters could not, in the settlement of the father’s estate, be considered as an advancement to them.</p> <p>Practice. — Motion for a New Trial — When May he Filed. — Finding of Facts. —It is proper to make and file a motion for a new trial immediately after the verdict of the jury is returned, or the finding of facts announced by the court.</p>

<p>School Lands. — Not Subject to Assessments for Construction of Drains. — The Congressional township lands in this State are not subject to assessments in aid of the construction of public ditches or drains.</p>

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

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

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

<p>Specific Performance. — Parol Contract for Conveyance of Land.— When will be Enforced. — Where the vendee has taken possession under a parol contract for the conveyance of lands resting upon a valuable consideration, and has made permanent and valuable improvements, specific performance of the contract will be enforced.</p> <p>Same. — Change of Possession. — Where the vendees were already occupying the land as tenants or as former owners, and continued in possession after the parol contract was made, there is no such taking of possession as will bring the case within the exception of the statute of frauds. To bring a parol contract for the sale of real estate within the exception to tke statute, there must be an open and risible change of possession under the contract.</p>

<p>Pbactice. — Assignment of Error. — Questions Presented Therein. — Failure to Discuss. — Effect of. — Special Verdict. — Where counsel fail to discuss any question presented by the record they thereby waive any that may have been involved by their assignment of error. No question is presented as to the sufficiency of the facts found in the special verdict to entitle the appellee to judgment when counsel fail to discuss the question presented by the assignment of error as to the sufficiency of the special verdict, and no objection whatever is pointed out or suggested.</p> <p>Kaibboad. — Negligence.—Injury to Infant. — Bumning Switch. — In an action for damages for negligence on the part of the defendant railroad company, whereby a child of tender years was injured by a car running detached from the train at a street crossing, in the city of New Albany, the evidence showed that the employees in charge of a heavy freight train were making a running switch, crossing the public streets in the city of New Albany, where the tracks were continually being crossed and recrossed by the public, and by children, which fact was well known to said employees, and that at the time of the accident they had no watchman at the front end of the train, and no precaution was taken to avoid injury to persons travelling upon said streets and liable to cross the tracks at any time. The brakeman was upon the back end of the detached car, and gave no heed to persons and children who might be crossing the track in front of the car, and could not see what was in front.</p> <p>Held, that' the evidence clearly established negligence on the part of the defendant company.</p>

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

<p>Judgment. — Record of. — Constructive Notice. — The record of a judgment is only constructive notice of all facts therein expressly recited, and of such facts as may he fairly inferred from the recitals.</p> <p>Same. — Recording of by Wrong Name. — Constructive Notice. — Lien.—The record of a judgment against William Mankediek is not constructive notice to a purchaser in good faith of real estate of which H. W. Mankedick is the remote grantor, that the judgment is against H. W. Mankedick and a lien upon the land.</p>

<p>Mechanic’s Lien. — Notice.—Overstatement,of Olaim. — A mistake by which one seeking to enforce a mechanic’s lien overstated the claim in the notice will not defeat the lien where it does not appear that the mistake has operated to any one’s prejudice.</p> <p>Same. — Notice.—Failure to State that Claim is Due. — The failure to state in the notice of the intention to hold a lien-that the claim is due, does not impair the notice as between the original parties.</p> <p>Same. — Foreclosure Suit. — Equitable Cognizance. — Trial by Jury. — N suit to foreclose a mechanic’s lien is of equitable cognizance, and there is no right of trial by jury.</p> <p>Same. — Verbal Notice of Intention — A verbal notice to the owner that a material man or mechanic intends to hold a lien upon the property is sufficient.</p> <p>Same. — Release of Lien.— When Ineffective. — Where a material man proposed in writing to waive his lien if the contractor should receive the amount due him for erecting the house, but the proposition was not accepted nor the contractor paid, there was no release of the right to hold the lien. A release is not effective unless the terms upon which it is conditioned are complied with by the party asserting a right under it.</p>

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

<p>Descents. — Ma-to-sin-ia Indians. — Lands of. — How they Descend. — Sale of to Pay Debts. — The real estate of a member of the Ma-to-sin-ia band of Indians, who died in 1880, having received title to his land under the act of Congress of 1872, did not descend to his heirs free from the demands of creditors. Said land, on proper petition, might be sold to pay the claim of a creditor of the decedent, whose claim did not belong to the class the payment of which said act of Congress expressly provided should never be enforced against the land to which the act referred.</p>

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

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

<p>Township Trustee. — Action against as School Trustee. — Assignment of Error against as Trustee of Civil Township. — Effect of. — Where the appellant, by his complaint filed in the circuit court, complained of the acts of the appellee in the capacity of school trustee, and in the assignment of error, which .is the appellant’s complaint in the Supreme Court, proceeded against the appellee in his capacity as trustee of the civil township, no question is presented by the assignment of error. The assignment of error must be against the person in whose favor the alleged erroneous ruling was made. The township trustee represents two corporations — the civil and the school township. The two corporations have as distinct and separate an existence in law as regards their rights and liability to sue and be sued as if they were two separate territorial subdivisions, or two distinct persons or corporations, though they are ' represented by the same officer.</p>

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

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

<p>Common Cabbier. — Rebate to Shipper. — Contract Providing for.— Validity of. — A contract entered into between a railroad company and a firm engaged in the grain business, whereby the railroad company agreed to transport grain for said firm between certain points at a certain price per hundred weight, the said firm stipulating, however, to pay a greater price per hundred weight, it being agreed that said firm should be entitled to a certain rebate per hundred weight, to be repaid promptly to said firm after such shipment, is valid. Such a contract is, in contemplation of law, nothing more than an agreement to carry the grain at the compensation ultimately agreed upon, inasmuch as the provision binding the carrier to pay back part of the nominal compensation, simply fixes the amount of actual compensation, although provision is made for a peculiar mode of payment.</p> <p>Same. — Rebate to Shipper.— When Contract Providing for is Illegal. — A contract giving a special rate to a shipper, and providing for a drawback, is not in itself illegal and void. To have that effect other elements must enter into the contract; but when such elements are present in such form, as to make the discrimination unjust or oppressive, the contract will be illegal.</p> <p>Same. — Freight Rales. — -Maintenance of by “ Pool.” — Illegality of. — A contract entered into between competing common carriers for the establishment and maintenance of freight rates, forming what is known as a “ pool,” being a combination for no other purpose than that of stifling competition, and providing means to accomplish that purpose, is illegal. Such a combination being void, any one of the associated carriers-has a right to provide by special contract for a special rate to a shipper, and such contract will be upheld when no element of partiality, oppression, or improper favoritism entered into the contract.</p> <p>Same. — Rebate.—Special Contract with Shipper. — Duly of Carrier as to. — Right of Shipper to Recover. — If a common carrier makes a special contract to repay part of the sum received from the shipper, he must perform his part of the contract, unless he overthrows the presumption of fairness and right by countervailing facts. It is not necessary for the shipper to prove that the rate charged and paid by him, under his contract, was excessive or unjust. His right to recover rests upon the contract providing for a drawback.</p> <p>Same. — Quantity of Grain to be Shipped. — Silence of Contract as to. — Contract not Invalid. — Revocation of Contract. — A contract binding a carrier to-transport as many car loads of grain as the shipper may desire transported, is not ineffective, for the reason that the shipper is under no obligation to ship any definite or designated quantity of grain. Possibly such a contract may be revoked, but if acts are done in performance it is, at all events, valid as to those acts, for until there is an effective revocation the contract remains in force. A proposal, although revocable in its nature, becomes effective if accepted and acted upon before annulled by revocation.</p> <p>.Same. — Principal and Agent. — Evidence.—Where the evidence shows that the carrier forbade the allowance of drawbacks on grain shipped by the plaintiffs to G. & F., and there is evidence tending to show that thereafter a person representing the company, and one, too, who had acted for the carrier in making former contracts with the plaintiffs, entered into a contract as to rebates with the plaintiffs subsequent to said notice of interdiction on the part of the carrier, treating the notice referred to as ineffective and inducing the plaintiffs to believe that it had no force, a verdict allowing the plaintiffs a rebate on grain shipped by them to said G. & F. subsequent to said order of interdiction, will not he disturbed.</p> <p>'Same. — Testimony of Agent. — Admissibility of. — Where the evidence shows that S. was more than a special agent of the carrier, and that his authority respecting contracts for freight was of wide scope, and that the claim of the plaintiffs for the drawback or rebate was presented to S. as the representative of the carrier at Indianapolis, and that communications concerning the claim were made to him, and that he conducted the general negotiation by correspondence with his principals, and by interviews with the plaintiffs, it was competent for 0., one of the plaintiffs, to detail statements made to him by S. in reference to said matter.</p> <p>Same. — Agent—Authority.—Scope of. — Declarations of Agent as to Past Transaction. — Where authority is delegated to an agent to transact business, and that business requires continuous negotiations, or is a business not fully ended by a single act-, hut requires a series of acts to complete it according to the intention of the parties and commercial usages, the authority of the agent does not expire with the performance of one act, although that act may be of prime importance. The same rule prevails where the agent is authorized to conduct a single transaction, for as to that transaction, he is a general agent invested with full authority to perform all acts necessary to fully consummate the transaction. This rule, however, does not permit the declaration of an agent narrating a past transaction to be given in evidence.</p> <p>Evidence. — Testimony.— What Necessary to Entitle it to Admission. — It is sufficient to entitle testimony to admission that there is some evidence, direct or circumstantial, tending to make it competent. It is not necessary that the connecting evidence should distinctly establish the facts which give the character of competency to the testimony.</p> <p>Practice. — Production of Books and Papers. — Order for. — Party Complaining of Order. — Remedy of. — Where a motion is sustained requiring a party to produce certain books and papers, the party is not bound to disregard the order of the trial court, suffer for the disobedience and then seek redress by appeal. Having objected in due season, in proper mode, and having appropriately saved an exception, all was done that could be legally required to be done in order to present the question on appeal.</p> <p>Same. — Production of Books and Papers.— Use of Directed by Court. — Presumption on Appeal. — If instruments of evidence are used in the mode required by law, it can not be said that there was prejudicial error, although the notice for their production may have been defective, or the. order upon it too broad. Where, after a general order for the production of books and papers, the court directed what use should be made of the same, and there is nothing to show that the direction was not an appropriate one, or that it was not fully obeyed, it must be presumed on appeal that there was no irregularity or error in the ultimate action of the trial court.</p> <p>Special Finding. — Must be Considered as a Whole. — A special finding like a special verdict, or a series of instructions, must be considered as a whole, and it can not be dissected into fragmentary parts and successfully assailed in detail. One part may be considered in connection with other connected parts, or parts referring to the same transaction, and if taken as a whole the finding legitimately supports the judgment it will be upheld.</p> <p>Same. — Sufficiency of. — It is sufficient if in a special finding the substance of the issue is established, and a finding containing more facts than the plaintiff is required to prove is not ill provided the facts are connected with the main issue, support it, and do not establish a distinct and independent cause of action.</p>

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

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

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

<p>Malpractice. — Complaint.— When Sounding in Tort. — Exemption.—In an action against a physician for damages growing out of alleged malpractice, the complaint alleged that the plaintiff, haying injured his right shoulder and arm, “the defendant, being then a practicing physician and surgeon, as such undertook faithfully, skilfully and diligently to treat and set, and endeavor to cure and heal said arm and shoulder.” Then follow proper averments as to his lack of skill, negligence, etc.</p> <p>Held, that the action was in tort, and not on contract, and that judgment having been recovered against the defendant he was not entitled to an exemption.</p>

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

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

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

<p>Exemption fkom Execution. — Action against Sheriff. — Complaint.—Sufficiency of. — In an action against a sheriff for selling the property of the plaintiff which he claimed he was entitled to as exempt from execution, the complaint alleged that the defendant levied an execution issued on a judgment recovered against the plaintiff on a promissory note upon the land of the plaintiff, of the value of $7,000; that the plaintiff was entitled to claim the benefit of the exemption laws of the State of Indiana, and that he made out and delivered to the defendant the schedule prescribed by statute and demanded that all of his personal property contained therein, of the value of $287, be set off as exempt from execution, and that the defendant, after having made a sale of said real estate, pay to him the difference between the appraised value of the personal property and the sum of $600 allowed him as exempt from execution, from the proceeds of the sale; that the defendant sold the real estate and refuses to pay any part of the purchase-money received therefor to the plaintiff.</p> <p>Held, that the complaint states a good cause of action, and is sufficiently certain.</p> <p>Same. — Second Exemption as Against Alias Execution. — Eight of Plaintiff to Claim. — In an action against a sheriff for selling property claimed as exempt from execution, the defendant answered that the execution levied upon the property was an alias, and that as against the original execution an exemption had been allowed.</p> <p>Held, that the answer did not state a good defence; that the fact that the plaintiff had had one exemption did not defeat his right to another if made in good faith, and that if the demand for the second exemption was not made in good faith the burden was on the defendant to allege and prove the fraud.</p>

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

<p>From the Dubois Circuit Court."</p>

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

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

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

<p>Former Adjudication. — Question not Raised. — Motion to Dismiss Complaint. —Where the pleadings do not show affirmatively that there has been an adjudication of the questions presented, a motion to dismiss on the ground of a former adjudication may be properly overruled.</p> <p>Same. — Improper Presentation of Question. — Where a cross-complaint is demurred to on the ground that the questions presented are the same as presented in a former case, but the cross-complaint contains no reference to the former action, the question of res judicata is not properly presented by the demurrer, and it is not error to overrule it.</p> <p>Practice. — Reversal of Erroneous Ruling by Trial Court. — Where the trial court makes a ruling and afterwards during the progress of the case is convinced that the ruling is erroneous, it may of its own motion reconsider and reverse it.</p> <p>Same. — Harmless Eiror. — Available error can not be predicated on the overruling of a demurrer to a complaint where judgment is rendered against the plaintiff and is not appealed from.</p> <p>Same. — Action for Cancellation of Judgment. — Separate Issues Joined on Complaint and Cross-Complaint. — New Trial. — Where the principal instituted an action to cancel a judgment against him and the surety, and the surety, who was made a party defendant, also sought in his cross-complaint the cancellation of the judgment as to him, and separate issues were joined, their rights were separate and distinct, and it was not error to grant a new trial to the surety, who was entitled to it, and deny it to the principal who was not.</p> <p>Estoppel. — Representations to Surety. — Where a creditor represented to the surety of tlie debtor that a certain note and mortgage executed by the debtor were delivered to the judgment creditor as collateral security for the note executed by the surety, and for other notes of the debtor in the hands of the creditor, and that the surety should be free from liability by seeing to it that the land covered by the mortgage sold for enough to satisfy it, and represented to the surety, after judgment upon the note executed as collateral security, that if the mortgaged premises sold for enough to satisfy the judgment on such note he would have nothing to pay, he is not estopped to enforce his judgment against the surety, where it does not appear that the surety acted upon the representations made.</p> <p>Judicial Notice. — Supreme Court. — Pleadings in Former Case. — This court will take judicial notice of the pleadings, issues and judgment in a former case decided by it.</p>

<p>Agreed Case. — Affidavit in. — By whom May be Made. — Agreement Signed by Party through Attorney — Effect of. — In an agreed case under the statute, the affidavit required by section 553, R. S. 1881, is sufficient if made by one, only, of the parties. Where the agreement is signed by the appellant in person, and by the appellee, acting through the attorney who represented him in the court below, and who represents him as counsel in the Supreme Court, and it appears from the record that the agreement as to the facts was submitted to the trial court by the parties, that it was acted upon by the trial court, and that a finding and judgment were made upon it, and there is nothing in the record showing that the appellee repudiated the act of his attorney who represented him in the court below and represents him here, the appellee is bound by the agreement.</p> <p>Same.— When will be so Considered. — Supreme Court. — Where both the parties toan action submit a case upon the theory that it is an agreed case under the statute, it will be so regarded by the Supreme Court unless to do so would work a manifest injustice.</p> <p>Insane Person.— Wife of Entitled to Medical Attention. — Estate of Husband Bound. — Guardian.—The wife of an insane man is entitled to medical attention, and the physician who renders it upon the request of the guardian of the insane husband is entitled to compensation out of the estate held in trust for him by his guardian. Execution. — Sale.— Separate Bids. — Holding in Abeyance.— The sheriff, upon a decree foreclosing a tax lien, first offered the lots for sale separately. The judgment debtor, by his attorney, bid for the separate parcels a sum insufficient to satisfy the writ, and the sheriff held the bids in abeyance until he offered the property as a whole. The debtor, whose bid on the property, in gross, was the highest, being unable to pay the full amount bid, the attorney, on the refusal of the sheriff to grant an extension of time, withdrew all bids made on her behalf, and the property was sold to another.</p>

<p>Held, that the sale was valid.</p>

<p>Highway. — Public Street. — Abutting Property-Owner. — The owner of property abutting on a public street has a private property right, distinct from that of the public, of which he can not be deprived without compensation.</p> <p>Same. — '-Diverting Street to Another Use. — Tender of Compensation. — A street can not be diverted from the use to which it was dedicated, and an additional burden can not be laid upon the property abutting on the street without lawful authority, and after compensation has been paid, or tendered.</p> <p>Municipal Corporation. — Maintenance of Pump on Public Street. — Nuisance.— Urban Servitude. — A well originally dug in a street by a lot-owner may be taken charge of by the corporate authorities, and made fit for convenient public use. A municipal corporation is not guilty of maintaining a nuisance where it does no more than construct a platform around the mouth of a well dug in the street by an abutting property-owner, and causes a pump to be be placed in it for the use and convenience of the public.</p> <p>Same. — It is immaterial whether a well, hydrant, fountain, or the like was dug, or erected, by a municipal corporation as a part of a general plan of improvement, for a thing of that kind, promotive, as it presumptively is, of public convenience, may be adopted by the municipality and maintained for public use.</p> <p>Sam:e. — Officers of. — Performance of Duties by. — Presumption as to. — Bow Bebutied. — It can not be presumed that a wrong was committed by the officers of a public corporation. It must be presumed that they rightfully performed their duty. The burden is on the party complaining to rebut the presumption by bringing forward countervailing facts, not by pleading bare conclusions or recitals.</p>

<p>Measure oe Damages. — Contract for Exclusive Bight to Sell. — Breach of.— True Measure of Damages. — Instruction.—Prospective Profits. — The plaintiffs alleged in their complaint that they rented a small piece of ground of the defendant for a huckster or candy stand during the fair, in September, 1888, and that it was a part of the agreement that there was to be no ground rented for competing stands within designated limits, and that this agreement was violated by the defendant by allowing competing stands within said limit. Prayer for damages for breach of contract.</p> <p>Held, that an instruction was erroneous to the effect that the plaintiffs were entitled to recover as damages the profits they would have realized upon goods that they did not sell in consequence of the opposition of rival sellers permitted on the ground in violation of the qontract.</p> <p>Held, also, that the true measure of damages would be the difference in the rental of the ground unoccupied by competing stands within the designated limits according to the contract and the rental of the ground occupied by competing stands as it is alleged to have been.</p>

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

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

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

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

<p>Eminent Domain. — Railroad.—Appropriation of Land Occupied by Track for Streets. — Municipal Corporation,. — Injwnction.—The statute authorizing municipal corporations to appropriate lands for streets does not confer the power upon them to- seize land occupied and used by a railroad company. Land already appropriated to a public use can not be appropriated to another public use unless the statute -clearly confers authority to make a second seizure. •' Where the municipal authorities have instituted proceedings to appropriate a strip of ground occupied by a railroad track, which strip is part of a continuous railroad, an injunction proceeding will lie to prevent the appropriation.</p>

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

<p>Intebstate Commeboe. — Municipal Corporation. — Ordinance Requiring License .Fee. — Invalidity of. — An ordinance which prohibits any travel-ling merchant, or pedler, from selling, or offering to sell, any merchandise without having obtained a license, can not be enforced against one who makes negotiations for the sale of property situated and owned in another State. An ordinance requiring a license fee from agents representing citizens of another State, who offer goods not in this State for sale by sample, is void, because it assumes to establish a regulation affecting commerce between the States.</p>

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

<p>Appeal. — Question not Presented. — Where it is stated in the motion for a ■ new trial and in the affidavit supporting it, that a written request for written instructions was made and overruled, but such request does not appear in the record or in the bill of exceptions, no question is presented to this court on the ruling denying the request.</p> <p>Supbeme Coubt. — Law of Corse. — A decision by the Supreme Court on appeal is the law of the case and governs it throughout all of its subsequent stages, even in the Supreme Court upon another appeal.</p> <p>Pobmeb Adjudication. — Demurrer.—The plaintiff, in a former action, between the same parties,alleged in his complaint that he had assigned to the defendant, an attorney, a note as collateral security to secure the payment of a judgment recovered by the defendant against him, and that the defendant took a judgment waiving valuation and appraisement laws, which was not authorized by the note, whereby the plaintiff suffered loss. A demurrer to the complaint was sustained, and on appeal the judgment was affirmed. The complaint in the present action, alleging the same facts, proceeds upon the theory that the defendant is liable for the negligence alleged in the collection of the note, not as attorney, but as assignee.</p> <p>Held, that the adjudication on the demurrer in the former action was conclusive on the parties, and that, therefore, the demurrer to the complaint in the second action should have been sustained. Coffey, J.,' dissents.</p> <p>Same. — Special Verdict. — Where the jury find the facts as to a former case between the same parties, and it appears that the judgment therein rendered is a bar to a second action, the court may disregard a finding by the jury that the matters involved in the second action were not adjudicated in the first, and render a verdict for the defendant on the special verdict. Whether the facts found by the jury constitute a former adjudication is for the court to determine.</p>

<p>Wita. — Devise of Proceeds of Land,— Construction. — A testator gave to his wife one-half of the proceeds of his farm from year to year, after deducting taxes and repairs, during her natural life or till his minor son became of age.</p> <p>Meld¡ that the devise vested in the widow an interest in the land.</p>

<p>Set-Off. — Plea Of. — Burden of Proof. — Bill of Exceptions. — Judgment.— Where the answer admits the execution of the note in suit, and pleads a set-off, and the general denial is pleaded by way of reply, the burden is on the defendant to establish the set-off; and where the bill of exceptions, which purports to set out the evidence, contains no evidence establishing the set-off, a judgment for the plaintiff will not be disturbed on the evidence.</p>

<p>'Statute of Limitations. — Action on Judgment. — Inapplicability of Statute Relating to Belief Against Fraud. — Where the trustee of a corporation, chosen to collect subscriptions to the stock,to be applied in discharging liens upon the property, while engaged in executing the trust paid to a lien-holder the amount of his judgment and took an assignment thereof, an action by the receiver of the corporation to set aside the execution sale thereon and to cancel the sheriff’s deed, is not an action for relief against fraud, within section 292, R. S. 1881, which requires such an action to be commenced within six years.</p> <p>Same. — Satisfaction of Judgment. — An action against the assignee of a judgment to have the judgment which has been paid declared satisfied, is not barred by the fact that more than six years have elapsed from the date of the assignment.</p> <p>Former Adjudication. — Action by Tenant. — Landlord not Bound. — A suit by the tenant of a corporation to enjoin the sale on execution of the leased premises, is not a bar to a subsequent action by the corporation, where it appears that the corporation did not control the litigation in the prior suit, or occupy such a relation to the controversy, that it was bound to appear and assume control thereof.</p> <p>New Triad. — As of Bight.— When will not be Granted. — Different Causes of Action. — Where a cause proceeds to judgment which embraces a substantive cause of action, in which a new trial as a matter of right is not allowable, then, even though it embraces other causes in which a new trial as of right is allowable, a new trial as of right will not be granted.</p>

<p>Judgment. — By Confession. — Rendered in Another Stale.— Validity of. — Collateral Attack. — A judgment of a court of a sister State having general jurisdiction, the record being regular, and showing an appearance on behalf of the defendants and a confession of judgment against them, and that such appearance was authorized by a power of attorney duly executed by such defendants authorizing such appearance and confession of judgment, can not be attacked collaterally. The same faith and credit must be given to the judgment as if rendered within this State.</p> <p>SAME.— When Not Void. — Collateral Attack. — A judgment is not void unless the thing lacking, or making it so, is apparent in the record. If it do not appear the judgment is not void, though it may be voidable. Unless a judgment is void it can not be-attacked collaterally.</p> <p>Same. — Married Woman. — Plea of Suretyship. — Former Adjudication. — Attachment Proceedings. — Where a judgment was rendered by confession against A. and his wife, in the State of Illinois, in a court of general jurisdiotion, and an action was afterward brought on the judgment in Indiana, and attachment proceedings instituted and the property of the-wife attached, the latter could not show as a defence to the judgment and attachment proceedings that the debt represented by the judgment was the debt of her husband, and that she was only surety upon the note sued on, and merged in the judgment rendered in Illinois, and that the property attached is her individual property, and not liable for the debt. The judgment in Illinois fixed her status and relation to the debt, and liability for its payment. Having failed to set up her suretyship when sued in Illinois, she could not do so thereafter.</p>

<p>Ejectment. — Quieting Title. — Abstract of Title Fwrnished by Plaintiff. — Sufficiency of. — Motion to Make More Specific. — Bill of Particulars. — Actions for Tort. — In an action to recover the possession of the land described in the complaint and to quiet title thereto, where the plaintiff had filed an abstract of title showing upon what deeds of conveyance she relied to prove such title, she was not required to furnish any more definite information, and a motion requiring her to furnish a more specific abstract of title and a bill of particulars was properly overruled. As a general rule a bill of particulars will not be ordered in actions for tort.</p>

<p>Railroad. — Right of Way. — Senior and Junior Railroad Companies. — Jnjwnction. — Where a railroad company entered into a written agreement with another company whereby the latter acquired the right, upon certain considerations named, to construct its railroad across and over the ■.ground and across the main and side-tracks of the senior company at Marion, Indiana, and after making such agreement, the senior company permitted the junior company to locate its right of way and construct its track over a strip of ground owned by the senior company^ but which had not been acquired for, or devoted to, a public use by said company, the latter could not thereafter, even though the compensation for the ground in dispute was not included in the agreement, enjoin the junior company from constructing a side-track on said strip of ground within the limits of its right of way, it not appearing that the side-track would in any way directly or indirectly affect the operation of trains over the senior company’s road, or that it would necessarily obstruct any approach to the depot, or other grounds of the senior company, and used in the transaction of its business. For a discussion of the rights of senior and junior railroad companies, as to right of way, use of tracks, sidings, switches, etc., see opinion.</p>

<p>Oeiminal Law. — Defective Information. — Prosecution Notwithstanding. — Abatement. — Grand, Jury. — When the accused is in actual custody he may be prosecuted by information, when the grand jury is not in session, although the information, or process, upon which he was originally arrested and placed in custody may have been defective, or irregular. Where the original prosecution abates, by reason of some irregularity, or informality, the court may direct that the accused be retained for a trial upon the merits of the accusation against him.</p>

<p>Contbact. — Sale of Beal Estate. — Cancellation of Sale. — Agreement of Grantee to Discharge Certain Indebtedness of Grantor. — Construction of. — Trust.—A. sold a tract of land to B., who paid therefor a certain sum in cash and assumed the payment of two mortgages on the land as a part of the ■consideration. Attachment proceedings were thereafter instituted against A., to which B. was made a party. While these proceedings were pending A. and B. entered into a written agreement, whereby the latter agreed to sell any part or all of the land theretofore purchased by him from A., provided that he should not sell it for less than its value, and after retaining from the proceeds of the sale enough to discharge all the liens against the land and enough to pay him “all the money that may be legally due him, with interest at the rate of six per cent.,” he was to pay what might remain to A.</p> <p>Held, that the parties to the agreement having accepted the second contract as a cancellation or rescission of the sale, and having so treated it, the rights of the parties are to he adjusted accordingly, although it may not in fact have operated as a cancellation or rescission.</p> <p>Held, also, that if the contract of purchase was afterwards cancelled or rescinded, the debts assumed by B. were no longer his personal debts.</p> <p>Held, also, that if B. was negligent in not selling the farm according to the second agreement, he was only chargeable with the reasonable value of the farm, or what it might have been sold for by the exercise of ordinary diligence, from which he was entitled to deduct the purchase-money paid by him, as well as the encumbrances that remained on the land, or for which it was sold, as well as any other sums of money paid by him on A.’s account which had not been otherwise adjusted.</p>

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

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

<p>Supbeme Coubt. — Conflicting Evidence.— Verdict will not be Disturbed. — The Supreme Court will not disturb a verdict on the ground that it is not sustained by sufficient evidence, if there is a conflict in the evidence. Evidence.. — Fori of a Writing Offered in Evidence. — Entire Writing may be Read. —Where a part of a letter was read in evidence, over the objection of the defendants, the plaintiff can not complain if the defendants should insist that as a part of the letter had gone to the jury it should all go in evidence, and after such insistence the entire letter was offered and read to the jury.</p>

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

<p>Will. — Construction.—Quantity of Estate. — A will read as follows: “I give and bequeath to my beloved wife, Elizabeth Neidigh, all my personal property, both real and personal, excepting a sufficient sum to pay just debts and funeral expenses.”</p> <p>Held, that the widow took the fee simple title to the land.</p>

<p>Appeal. — Return of Summons. — Defective Endorsement on Complaint.— Waiver of Objections. — An objection that the endorsement on the complaint of the time for the return of the summons is defective can not be made for the first time in this court, although some of the defendants were infants.</p> <p>Ejectment. — Possession.—Injunction.—Injunction will lie to restrain interferentíe with the execution of a writ of ejectment issued on a judgment for possession.</p> <p>Same. — Judgment in. — Collateral Attach. — The judgment in ejectment can not be attacked in the injunction proceedings because of some defect in the notice given in the ejectment proceedings, or some error in the ruling of the court in that action. Such defects and errors are not availing in a collateral attack.</p>

<p>Maebied Woman. — Loan to. — Suretyship.—Where a married woman applies for a loan, in the absence of her husband, representing that she desires to borrow the money for her own use, and the loan is made, and she receives the money, without any knowledge on the part of the lender that it is not for her own use, and executes a note and a mortgage to secure it on her separate property, her husband joining, such married woman is liable as principal to the payee of the note. The lender in such case is not affected by any disposition afterwards made by her of the money received.</p>

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

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

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

<p>Pbomissoex Note. — Payable at Bank. — Inland Bill of Exchange. — A note payable to order at a bank in this State is negotiable as an inland bill of exchange. The fact that the bank at which the note is made payable and negotiable is also the payee does not destroy its commercial quality.</p> <p>Same. — Endorser.—Liability of as Endorser or Surety. — Notice of Non-Payment, —One who endorses such note before delivery, with the intention of assuming the liability of an endorser, in order to give the principal in the note credit with the bank, is liable as an endorser, and not as surety, and the failure of the bank to give notice of the dishonor of the note results in his discharge; and it is immaterial that the bank and the maker of the note intended that the endorser should be bound as surety, unless there was an agreement with the endorser.</p> <p>Same. — Blanks.—Power to Fill. — Alteration.—Where one signs a note in blank, or leaves blanks in it necessary to be filled in order to make it a complete contract, and delivers it in this condition, he thereby clothes the holder with implied authority to fill the blanks. But where a contract complete in all its terms is intrusted to the maker by the indorser to be delivered, he has no implied authority to make an agreement with the payee that the endorser shall be liable as surety.</p>

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

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

<p>Juey. — Bailiff.—The bailiff should not remain in the room during the deliberations of the jury.</p> <p>Same. — Misconduct of. — Where the jury, after being out for more than twelve hours, without arriving at a verdict, agree that ballots shall be cast, and that the verdict of the jury shall be returned for the party receiving the majority of the ballots, the verdict so obtained is erroneous.</p> <p>Juror. — Affidavit.—Impeachment of Verdict. — The affidavit or evidence of a juror is inadmissible to impeach his verdict.</p> <p>Supreme Couet. — Reversal of Judgment. — Unless it affirmatively appears that the judgment is right notwithstanding errors in the record, the judgment will not be affirmed notwithstanding such errors.</p>

<p>Drainage. — Ditch Extending into More than One County. — Repairs.—How-Paid for. — Statute Construed. — Under section 10, Acts 1885, providing for the construction and repair of ditches extending into more than one county, where the surveyor of the county in which the ditch was established repairs a ditch extending into another county, it is his dut)' to apportion the cost and certify to the county auditor of each county such portion as is chargeable against the lands in such county. It is then the duty of the county auditor of each county to draw his warrant on the treasury for such portion of the cost as is chargeable against the lands in his county, for which amount the treasurer of such county will be reimbursed by the collection of the assessments against the lands in such county.</p>

<p>Township Trustee. — Overpayments.—Shortage.—Set-Off.—In an action on the bond of a township trustee he is entitled to set off against the shortage in one fund overpayments on account of another, so far as the shortage was occasioned thereby.</p>

<p>Pbincipal and A&ent. — Action for Commiesion. — Pleading.—Answer.—Sufficiency of. — In an action to recover a commission for the sale of real estate, an answer is good which alleges that the plaintiff, who resided in the county where the land was situated, and knew the value thereof, agreed to make a diligent effort to sell the same for the best price that could he obtained in the county, or neighborhood; that he sold the same, which was worth eighty dollars per acre, for sixty dollars per acre, when, if he had made the effort he agreed to make, he could have sold it for the former price; that the defendant, who resided in another county, was compelled to rely upon the representations and statements of the plaintiff as to the value of the land; that because of the plaintiff’s non-compliance with his contract the defendant was damaged in the sum of one thousand dollars (a sum greater than the claim in suit).</p>

<p>Appellate Court. — Jurisdiction.—Su/preme Gourt. — Where the exercise of appellate power is invoked by appeal, the jurisdiction is in the Supreme Court in all cases except those specified in the act creating the Appellate Court. If the case is one of appellate cognizance, and does not fall within one of the classes over which the Appellate Court is given jurisdiction, it is within the jurisdiction of the Supreme Court.</p> <p>Same. — Constitutionality of Statute. — Where the constitutionality of any statute, Federal or State, is in issue, the jurisdiction is exclusively in the Supreme Court.</p> <p>Same.1 — Jurisdiction of Subject-Matter. — Gonsent of Parties.- — Jurisdiction of the subject-matter can not be conferred by agreement or assertion of parties or counsel; it must be given by law.</p> <p>.Same.— Validity of Statute. — Question, How Presented. — A mere allegation in the pleading that a statute is unconstitutional will not present the question of its validity; it must appear from the record that there is a substantial foundation for the allegation.</p> <p>Same. — Misdemeanors.—Felonies.—Appeals from the circuit, superior and criminal courts in cases of misdemeanors are within the jurisdiction of the Appellate Court, but the Supreme Court has jurisdiction of appeals in eases of prosecution for felonies, the jurisdiction of that class of cases remaining unchanged.</p> <p>Same. — Gases Originating before Justice of the Peace. — Amount in Controversy.— The Appellate Court has jurisdiction of all cases originating before a j ustice of the peace where the amount in controversy, exclusive of costs, exceeds fifty dollars. The amount in controversy is to be determined from the record and the material parts of the pleading, and not from the formal demand for judgment.</p> <p>Same. — Gases for Recovery of Money Only. — Amownt in Controversy. — How Determined. — The Appellate Court has jurisdiction of “ all cases for the recovery of money only where the amount in controversy does not exceed one thousand dollars.” All money recoveries, whether in actions on contract or for torts, belong to the class designated by the provisions fixing the amount of one thousand dollars as the limit of the jurisdiction. If the recovery does not exceed the limit of one thousand dollars, and is for money only, the jurisdiction is, as a general rule, in the Appellate Court, although interest accruing subsequent to the judgment may increase the amount which the judgment will yield beyond one thousand dollars.</p> <p>Same. — Where there is a recovery which does not exceed one thousand: dollars, and a simple money judgment is rendered, the case, as a general rule, will fall to the Appellate Court. Where, however, there is a recovery with which the plaintiff is content, and there is no counterclaim, the judgment is the standard by which jurisdiction is to be determined.</p> <p>Same. — No Recovery. — Demurrer Sustained to Complaint. — Where there is no-recovery, as in cases where a demurrer is sustained to the complaint, the amount is not to be determined from the formal demand for judgment, but from the body of the pleading.</p> <p>Same. — Doubt as to Amount of Recovery.- — Cross-Complaint and Counter-Claim. —If from the material statements of a complaint there is a probability that more than one thousand dollars may be recovered upon trial, the jurisdiction in a case where a demurrer is erroneously sustained to-a complaint is in the Supreme Court. If a cross-complaint or counterclaim is filed making a real controversy for a sum exceeding one thousand dollars, the jurisdiction is ordinarily in the Supreme Court.</p> <p>Same. — Equitable Actions. — Suits in equity are not within the jurisdiction of the Appellate Court, for where any relief beyond a money recovery is demandable, or is awarded, the whole case 'falls to the Supreme Court, although a money judgment may be included in the decree.</p> <p>Same. — Actions for Recovery of Specific Personal Property. — All actions for the recovery of specific personal property are within the jurisdiction of the Appellate Court.</p> <p>Same. — Actions Between Landlord, and Tenant. — -The Appellate Court has jurisdiction of all actions between landlord and tenant for the recovery of the leased premises. All actions for the recovery of real property where the relation of landlord and tenant does not exist, or where the recovery of the demised property is not sought, are within the jurisdiction of the Supreme Court.</p> <p>Same. — Appeals from Orders Allowing or Disallowing Claims Against Decedents’ Estates. — The last class of cases designated in the act does not embrace general probate matters, but is confined to orders allowing or disallowing claims against decedents’ estates. Actions to contest wills, applications for the appointment or removal of administrators, and like cases, are not embraced within it.</p>

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

<p>Appellate Court. — Jurisdiction.—Application to Set Aside Judgment. — An application to be relieved from a judgment by default, rendered in an action on a note where the amount involved was less than one thousand dollars, is within the jurisdiction of the Appellate Court.</p>

<p>Appellate Coubt. — Jurisdiction.—Action by Municipal Corporation to Recover Penalty for Violation of City Ordinance. — In an action by a municipal corporation to recover a penalty for the violation of a city ordinance, where the validity of the ordinance is not involved, the Appellate Court has jurisdiction of an appeal from a judgment against the corporation.</p> <p>Same. — One of the Judges of Counsel. — The fact that one of the judges of the Appellate Court was of counsel does not deprive that court of jurisdiction.</p>

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

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