Volume 127 — Indiana Reports

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

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

<p>Criminal Law. — Grand Jury. — Irregularities.—Abatement.—The failure of the court to interrogate a by-stander, called as a grand juror, before permitting him to become one of the panel, as required by statute (section 1651, B. S. 1881), is not sufficient cause for abatement of the prosecution, if such person is in fact a qualified juror.</p> <p>Same. — Mwder.—Accessory before the Fact. — Amendatory Act. — Ex Post Facto Law. — The act of March 9th, 1889 (Elliott’s Supp., section 302), amending section 1788, E. S. 1881, which declares who shall be deemed an accessory before the fact to the crime of murder and prescribes the punishment, makes no change in the former law except as to the remedy. The change made does not take away the right of the State to prosecute for a felony committed prior to its enactment, as a change in the remedy is not within the constitutional inhibition in respect to ex post facto legislation.</p> <p>Same. — Re-Enactment of Statute. — Statute not Repealed. — An amendatory statute, defining an offence in substantially the same language as that employed in the statute it amends, and simply re-enacting it, does not deprive the State of the right to prosecute for an offence committed before the act became effective.</p> <p>Same. — Evidence.—On the trial of a man as accessory before the fact to r„the murder of an illegitimate child by its mother, which he had made the condition of his marrying the mother, it was competent for the State to prove by her that she was pregnant as the result of an illicit intercourse with the accnsed, such fact tending to render probable her statement that he advised and encouraged her to murder the child ; but it was not competent for the defence to prove specific acts of immorality with other men, as that she had previously given birth to an illegitimate child.</p> <p>Same. — Confidential Communications. — The admission of evidence that the accused and his wife were in a room by themselves after the arrest does not violate the rule protecting communications between husband and wife.</p> <p>Same. — Testimony of Deceased, Witness. — Stenographer’s Report. — The official stenographer may properly be permitted to read from his report of the testimony of a witness given on a former trial, who had since died.</p> <p>Same. — Defendant’s Statement before Coroner. — The statement of the defendant, accused as an accessory before the fact, made before the coroner, authenticated by the coroner’s certificate and identified by him as the statement made by the defendant, was properly admitted in evidence, and the accused had no right, on cross-examination of the coroner, to inquire whether the statement was all reduced to writing.</p> <p>Same.— Witness. — Impeachment of Character. — Where a witness, whose character was sought to be impeached, had been imprisoned in one of the prisons of the State, remote from her place of residence, and was, during the seven yeai'S intervening between the time of the trial and the time she last resided at her former home so confined in prison, it was not error to refuse to permit a witness who had testified as to the character of such witness at the time she resided at her former home, to testify as to the general character of the witness at such former residence at the time of the trial.</p> <p>Same.— Witness’s Interest in Defendant’s Cause. — Defendant’s witness may properly be asked on cross-examination if he did not leave home in order to enable the defendant to obtain a continuance, as the question tends to show the interest of the witness in the defendant’s cause.</p> <p>Same. — Complicity of Accused. — Evidence.—The defendant made the murder of an illegitimate child a condition of his marrying the mother, and to influence him to take her as his wife she murdered the child. For a number of years she declined to implicate her husband, and continued to do so until the defendant, after she had been in prison for some years, applied for a divorce.</p> <p>Held, that it was competent for the State to prove when the wife made known her husband’s complicity in the crime.</p> <p>Same.— Words and Acts of Accessory. — Where death results from afelonious act of the principal, brought about by the counsels or commands of the accessory, the latter is guilty, although death may not have resulted immediately or directly from the act of either of the wrong-doers. Nor is it necessary that the acts or words of the accessory should directly incite or expressly command the principal to commit the homicide; it is enough if it appears that the acts or words of the accessory were intended to secure the unlawful killing of the deceased, and that they effected that result.</p> <p>Aboument oe Ooustsei..— What Does not Constitute Misconduct. — Erroneous inferences from the evidence drawn by counsel and stated in their addresses to the jury, or mistaken opinions of the law expressed by them in such addresses, do not, as a general rule, entitle the complaining party to a new trial.</p>

<p>Descent. — Childless Second Wife. — Interest of as Widow. — Forced Heirs.— Prior to the act of March 11,1889, a childless second wife took an interest equal to the undivided one-third in fee simple in her deceased husband’s real estate. During her lifetime the children of her husband had no vested estate in the property which descended to her, but at her death they became her heirs by compulsion of law.</p> <p>Same. — Partition.—Title not in Issue. — Tn a suit for partition by one of the children of the deceased husband against the widow and the other children, if the title is not directly put in issue by the pleading, a decree adjudging the widow was entitled to an estate for life is not conclusive as to her interest.</p> <p>Same. — • Warranty by Heirs Apparent. — Where one of the children of the deceased husband executes a warranty deed to her expected interest in the widow’s one-third and dies before the widow, such warranty deed does not bind her children, and they are not estopped to set up their title as the heirs of the widow, at the widow’s death.</p> <p>Same.— Warranty Deed. — Estoppel.—Where one of the children assumes to convey and warrant the title to a reversionary interest equal to the undivided one-third of the real estate previously set off to the widow, the grantee acquires by the deed a one-third interest in the land, subject to the estate of the widow and the grantor, and all those claiming through him are estopped to assert the contrary.</p>

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

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

<p>Master and Servant. — Known, Danger. — Assumption of Risk. — An employee assumes all the risks incident to the service into which he enters, but where the negligent breach of duty on the part of the employer augments the hazards of the service the employee may, unless by voluntarily continuing in the employer’s service he has assumed such danger, hold the employer accountable for an injury caused by such negligent breach of duty.</p> <p>Same. — Concurrent Negligence of Master and Fellow-Servant. — Where the master is negligent he is responsible, although the negligence of a fellow-servant may have concurred in bringing injury upon the plaintiff.</p> <p>Same. — Continuance in Service After Danger Increased. — Instruction.—An employee who voluntarily remains in his employer’s service after its danger has been increased by the employer’s negligence, can not recover, since he assumes the risk from such known danger; but this rule does not apply where the employer promises to take steps to remove the threatened danger. Hence, it is not error to refuse an instruction unqualifiedly asserting that jf the employee remains in the service after he acquires knowledge of the increased danger he can not recover. Such instruction is erroneous also for the reason that knowledge that a master is not discharging his duty in making safe the place where he requires his employees to work will not defeat a recovery by an employee injured by the master’s neglect of duty, unless it is inferable that the breach of duty augmented the dangers of the service.</p> <p>Same. — Both the question as to whether there was a negligent breach of duty by the employer, and the question as to whether such a breach of duty increased the dangers of the service, are, generally,' questions of fact. If only one inference can be drawn from the facts, and the facts are uncontested, the question may be one of law ; hut where the facts are controverted, or where more than one inference may be reasonably drawn from the facts, the question is, generally, one of fact for the jury. Where more than one inference may be drawn from the facts established by the evidence, the questions as to what inferences shall be deduced are, usually, questions of mingled law and fact, and must be submitted to the jury under appropriate instructions as to the governing rule of law.</p> <p>Same. — Contributory Negligence. — Assumption of Risk. — Instruction.—Where it is a material question whether the employee, having knowledge of the danger, .assumedlit as one of the risks incident to his service, an instruction treating the employee’s knowledge as affecting only the question of contributory negligence, while erroneous, is not ground for reversal, where other instructions treat his knowledge as affecting the assumption of the risk, and the jury find specially that the employee did not have knowledge of the increased peril.</p> <p>Verdict. — Answers to Interrogatories. — The general verdict will stand, unless the antagonism between it and the special answers to interrogatories is so clear and strong as to preclude a reconciliation.</p> <p>Instructions to Jury. — Improperly Expressed. — Refusal of Request. — Unless the instruction asked is expressed in proper terms the trial court may refuse to give it; it is not bound to modify or amend it.</p>

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

<p>Injunction. — Pleading.—Answer.—In an injunction proceeding to restrain a natural gas company from laying its pipes on the land of the plaintiff, an answer denying the ownership of the plaintiff and asserting title in a third person, from whom the defendant had permission to enter upon the land, is good.</p> <p>Same. — Evidence.—Nature of Threatened Injury. — Evidence that the plaintiff had acquiesced in the occupancy of the land, and that she had offered to receive a certain compensation for allowing the defendant to construct its line of pipe, is competent, as tending to show the nature and extent of the threatened injury sought to be restrained.</p> <p>Same.' — Evidence.—A deed executed by plaintiff’s grantor to a third person, conveying an interest in the land, is properly admissible in evidence as showing the character of the injury.</p> <p>Same. — Finding of the Jury. — Court May Disregard. — An injunction proceeding is one of exclusive equitable cognizance, and the trial court is not bound by the finding made by the jury.</p>

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

<p>Taxes. — Foreclosure of Tax Lien. — Removal of Suit to United States Cireuit Court. — On the removal to the Circuit Court of the United States of a suit to quiet title on a tax deed, or to foreclose a lien, that court has power, in a chancery proceeding, to hear and determine the action, and its finding and decree is final and conclusive, and can not be impeached or questioned in a subsequent action in the Supreme Court of this State.</p> <p>Same. — Sale.—Setting Aside of. — Under a decree of the Circuit Court of the United States foreclosing a tax lien, a sale of the land was made by the special commissioner appointed by the court. On the application of the junior mortgagee the sale was set aside. Thereupon the mortgagee paid into court a certain sum of money, which was accepted by the purchaser at the sale and the complainant in full satisfaction of their claim, and the court entered an order declaring the mortgagee subrogated to all the rights of the complainant in the decree of foreclosure.</p> <p>Held, that while the payment to' the complainant satisfied the decree as to him, it was kept alive as to the mortgagee, and that a subsequent sale might be made.</p> <p>Same. — Subrogation.—Prior Mortgagee. — Notice.—The fact that the prior mortgagee had no notice of the application made by the junior mortgagee to be subrogated to the rights of the complainant in the decree, did not^render the order of the court void, as the junior mortgagee and the complainant, the only parties interested, were in court.</p> <p>Same. — Foreclosure of Tax Lien. — Owner of Land not Made Party. — •Invalidity of Sale. — In a suit to quiet title on a tax deed against the mortgagees of the land the owner of the land was not made a party. A decree was rendered declaring the tax deed invalid. The lien for taxes due was declared superior to the liens of the mortgagees and foreclosed, and the land was sold.</p> <p>Held, that the sale was void as to the owner ; that while a mortgagee was estopped by the decree to deny that the lien held by the complainant was superior to the liens held by the mortgagees, he was not estopped to assert that the owner held the title to the land when the decree was rendered.</p>

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

<p>Summons. — Against Township Trustee. — A summons, reading, “You are hereby commanded to summons trustee Cicero school township,” etc., sufficiently indicates that the action is against the township, and not against the trustee personally, and the township is bound to take notice of the pendency of the action. Vogel v. Brown Township, 112 Ind. 299, distinguished.</p>

<p>Township Trustee. — School Supplies. — Note.— When Township Bound. — A note, or other obligation, executed by the township trustee for school supplies purchased on credit does not bind the school corporation ; it is bound only where the school supplies were actually delivered to the school township.</p> <p>Same.— Value of Supplies. — Evidence.—The notes or certificates issued by a township trustee do not preclude, the school township from proving the actual or true value of the property purchased by the trustee. Evidence of the value of the property alleged to have been sold to the school township is properly admissible.</p> <p>Evidence. — General Objections. — General objections to evidence arc unavailing, and only such objections as are specifically stated will be noticed on appeal.</p> <p>Same. — -Witness’s Interest. — An objection that certain letters given in evidence were written after the notes in suit had been assigned, is unavailing where the letters are competent as tending to show the interest of some of the witnesses in the cause.</p>

<p>Winn. — Contest of. — Purchasers from, Devisee. — Parties.—In an action to set aside a will admitted to probate, and to establish and probate a lost will, purchasers of land from the devisee under the probated will are proper parties defendant.</p> <p>Same. — Prosecution of Claim against Estate. — Estoppel.—The fact that the plaintiff, with knowledge of the execution of the will, which disinherited her, prosecuted a claim to final judgment against the administratrix with the will annexed, for services rendered to the testator, and for property converted by him, did not estop the plaintiff to deny the validity of the will.</p> <p>Same. — -Pleading.—Answer Alleging Final Settlement. — To a suit to contest a will, an answer alleging a final settlement and ap order of the court discharging the administratrix with the will annexed, presents no defence where the estate consists of both personal and real property.</p> <p>Same. — Pleading.—Striking out Allegations. — In a suit to contest a will allegations in the complaint relating to an agreement by the terms of which it is alleged the testator agreed with his brother to make a will bequeathing all his property to the plaintiff may properly be stricken out.</p> <p>Pleading. — Partial Defence. — Demurrer.—A pleading which purports to answer the whole complaint, and the matters therein pleaded, amounting to a partial defence only, is bad on demurrer.</p>

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

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

<p>Partition. — Action by Assignee in Insolvency. — Recording of Deed- of Assignment. — Sufficiency of Allegation as to. — In an action for partition by the assignee of an insolvent debtor, an allegation in the complaint that the deed of assignment was duly filed and recorded in the recorder’s office of the county in which the assignor resided and in which the real es-. tate is situated, shows a compliance with the requirement of section 2663, R. S. 1881, that the deed shall be filed with the recorder of the county in which the assignor resides within ten days after its execution, and be recorded as other deeds.</p> <p>Same. — Deed of Assignment. — Exhibit.—The deed of assignment is not the foundation of such action, and the assignee is not required to file a copy of the instrument with the complaint as an exhibit.</p> <p>Same. — Action for. — Leave of Court. — An assignee in insolvency can not maintain an action for partition as a matter of course. Unless he makes it appear that it will be to the interest of his trust to bring the action, and that he is acting under the direction of the court, his action will fail.</p>

<p>Practice. — Motion to Strike out Pleading. — Harmless Error. — Overruling a i motion to strike out parts of a pleading is not available error.</p> <p>Same. — Contract.—Parol.—Presumption.—A contract not alleged to be in writing is conclusively presumed to rest in parol; and available error can not be predicated on the overruling of a motion to make a complaint on contract more specific by alleging whether the contract was in writing or by parol.</p> <p>Life Insurance. — Insurable Interest. — A creditor has an insurable interest in the life of his debtor.</p> <p>Same. — Judgment Debtor. — Assignment of Policy. — Duress.—Estoppel.—Where a debtor assigns a policy of insurance on his life to his creditor to secure a debt, and acquiesces.in the assignment for many years, taking no steps to avoid it, and knowing that it was necessary to pay the premiums to keep it alive, he can not, in a suit on the policy, avoid the assignment on the ground of duress.</p> <p>Statute of Limitations. — Life Insurance. — Payment of Premiums. — Repayment out of Proceeds. — Where the insured assigns a policy of life insurance to a creditor to secure his debt, on which the assignee is to pay the premiums, which are to be repaid out of the proceeds of the policy, the fact that he paid such premiums more than six years before the policy matured, or before the commencement of the suit thereon, does not bar his right to apply the money when collected to a repayment of such premiums, the six years’ statute of limitations having no application to such a case. “</p>

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

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

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

<p>Banks. — Application of Checks. — Rights of Holder. — The husband of the plaintiff, as her agent, sold some wheat for her, and received therefor from the grain merchant a check payable at the defendant bank to himself or bearer. The check was delivered to a third party to be presented to the bank for payment. Such third party, on presenting the check, claimed a certain sum of the amount represented thereby as due him, and stated that the remainder belonged to the plaintiff’s husband. The bank paid the sum claimed as due and appJ ied the remainder to a debt due from the husband to the bank.</p> <p>Held, that the proceeds of the check belonged to the plaintiff, and that the defendant having failed to pay the same on demand, she was entitled to recover in an action for money had and received.</p> <p>Held, also, that the plaintiff was not bound to tender her check when she demanded payment.</p>

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

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

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

<p>Street. — Obstruction of. — Injunction.—A private individual may maintain an action because of an obstruction of a public street, where such obstruction peculiarly affects him, although it does not affect the general public.</p> <p>Same.-^Injunction. — Irreparable Injury. — If the damages' are irreparable such as affecting the free use of a residence, or an abutting lot, cutting off ingress or egress thereto, and endangering the property, life and health of persons residing thereon, an injunction will be granted to prevent the obstruction.</p> <p>Injunction. — Complaint as Evidence. — A verified complaint, in an action for an injunction, submitted to the court on the trial as evidence in the case, will be treated as any other document put in evidence.</p> <p>Railroad.— Tracks Laid, in Street. — Double Tracks. — “Line of Bailroad.”— A city granted a right of way to a railroad company to lay its track in a street, upon condition that it grade and gravel such street, and make and maintain all necessary culverts and crossings, the grade to be established so as not to materially interfere with the convenience of the public in crossing the track where other streets intersected such street. Another condition was that the “ line of the railroad ” should “be located so as not to approach the sidewalk-curbstone nearer than fifteen feet.” The company also prosecuted proceedings of appropriation, and had the damages sustained by all the adjacent land-owners assessed. The use to be made of the property was in no way limited.</p> <p>Held, that the company had a right to lay one or more tracks in the street; that the words, “ line of the railroad,” as used in the ordinance, had reference to the outer rail of the track, and so long as there was a clear fifteen feet,between such outer rail and the curbstone, and the track was not raised above the established grade of the street, an abutting landowner could not object.</p>

<p>Easement. — Owner of Servient Estate. — Proof of Disability. — While a right can not be acquired by prescription against one under disabilities, the person claiming the right is not required to aver and prove that the owner of the servient estate was not under disabilities. If disability is relied on as a defence it must be established by the party asserting it, as disability is not presumed.</p> <p>Same.— Ways. — Prescription.—Where there is a continuous and uninterrupted use of a private way over the land of another by an adjoining owner for more than twenty years, and the owner of the dominant estate during such time expends money in improving the way, and the . owner of the servient estate marks its boundaries and fences it, a title to the way by prescription is established.</p> <p>Same. — Intersection of Private Way with Public Road. — Erection of Gate. — The owner of the servient estate has no right to erect a gate at the place where a private way acquired by prescription intersects a public road, where no gate was erected during the requisite term for acquiring the way.</p> <p>Same. — Purchaser of Servient Estate with Knowledge. — One who takes an estate upon which a servitude has been imposed, with knowledge of its existence, holds it subject to the same servitude and in the same manner as it was held by his grantor.</p>

<p>Contract. — Parol Negotiations. — Merger.—The rule that all parol negotiations are conclusively presumed to be merged in the written contract has no application to contracts made after the execution of the writing. Written contracts may be modified, changed or rescinded by parol at any time after their execution.</p> <p>Common Carriers. — Shipment of Freight. — Subsequent Parol Contract.- — Evidence. — In an action against a railroad company for the breach of a contract for the shipment o£ cattle, evidence of conversations between the plaintiffs and the agent of the defendant is admissible to prove that a. written contract lor transportation was abandoned, and that the cattle were shipped under a parol contract subsequently made.</p>

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

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

<p>Evidence. — Expert Testimony. — Instruction.— Weight. — Interest.—An instruction that “The jury, in judging of the weight of expert evidence, should consider the character of the witness and the interest, if any, he has in the case,” is erroneous.</p>

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

<p>Cbimiítal Law. — Affidavit for Gontinucmce. — Sufficiency of. — An affidavit of the prosecuting attorney for a continuance on the ground that because of a change by the court of the time appointed for trial he was not able to secure the attendance of a certain witness named in the affidavit, which does not show that he did not have information of the change of the time appointed in season to secure the testimony of said witness, is insufficient.</p>

<p>Chattel Mortgage. — Sale on Execution. — Personal property under mortgage may be levied upon and sold by execution, subject to the mortgage lien.</p> <p>Same— Nature of Mortgagee’s Interest. — The mortgagee of personal property is a mere lien-holder.</p> <p>Same. — Attachment of Mortgaged Property by Mortgagee. — Waiver of Lien.— Estoppel. — A levy of a writ'of attachment by the mortgagee upon personal property mortgaged to him is not a waiver of his mortgage lien; and the mere fact of the levy does not estop him to foreclose or claim under his mortgage lien.</p>

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

<p>Contract or a State. — In entering into a contract a State lays aside its attributes as a sovereign and binds itself substantially as one of its citizens does when he enters into a contract. By the act of entering into a contract it abrogates the power to annul or impair it.</p> <p>Action Against a State. — Failure to Make Appropriation. — Mandate.—A ,/ State can not be sued, nor can an action- for mandate to compel the pay-1- ment of a valid claim of a State be maintained against its officers, unless an appropriation has been made by the Legislature for the payment of such claim; but a proceeding for a mandate may be maintained against the auditor of state, if a proper appropriation has been made, to compel him to draw a warrant for the amount due.</p> <p>Constitutional Law. — •One Department Controlling Another. — One depart-y ment of a State can not control another department; nor can the courts ' supply the omission of the Legislature to make an appropriation.</p> <p>Appropriation. — Implied, what is. — Sufficiency.—An appropriation need not be made in any particular form or in express terms ; it may be implied. It is sufficient if the intention to make the appropriation is clearly evinced by the language employed in the statute upon the subject, or if it is evident that no' effect can possibly be given a statute unless it be construed as making the necessary appropriation. Nothing more is requisite than the designation of the amount and the fund out of which it shall be paid; but a promise to pay, contained in a bond of the State, lawfully issued, is not an appropriation.</p> <p>Same. — No Funds in Treasury. — An appropriation may be made even when there is no funds in the treasury to meet it.</p> <p>Repudiation. — Presumption.—A State has no right to repudiate its valid obligations, neither directly nor by indirection ; and no such a purpose will be imputed to it by the court unless a contrary intention is clearly manifested. In ascertaining whether or not a State intended to repudiate a valid claim the whole course of legislation upon the subject will be examined by the courts.</p> <p>Same. — Change of Remedy. — A State has the power to withdraw a remedy, and thus defeat its creditor.</p> <p>Payment.. — Place of can not be Changedby Debtor. — A debtor can not change the place where he has agreed to pay off his obligation.</p> <p>Contract. — Law Part of. — Effect of Change of Law. — The law in force at the time a contract is made enters into and becomes a part of it; and no subsequent change of the law can affect such contract.</p> <p>Repeal or Statutes. — Repealing Act Unconstitutional. — A repeal of a statute can not be accomplished by an unconstitutional statute; and if an act repealing a former act is invalid, an appropriation made by such former act is not affected by such invalid act, and remains in force.</p> <p>Same. — Effect upon Appropriation. — A State can not invalidate its contract after it is made by repealing the statute authorizing its creation; and an attempt to annul such a contract does not affect an appropriation made in the statute authorizing the assumption of the obligation.</p> <p>Interest. — ■Liability of a State for. — A State is not liable for interest upon its obligations unless it contracts to pay it in pursuance of a statute authorizing the contract. The general interest statute does not apply to the Slate.</p> <p>Same . — Interest after Debt Due.— Compound Interest. — A statute authorized the issue of bonds of the State bearing interest at the rate of five per cent, per annum, payable semi-annually. No coupons were issued for the interest. If any instalment of interest was not demanded at a certain named place before the expiration of thirteen months from the time it became due, the State had the right to pay it at its own treasury. The bonds were made made payable at the end of twenty years from the time of their issue, and after twenty years the State might, at its pleasure, redeem them.</p> <p>Held, that the bonds drew five per cent, interest after the expiration of the twenty years; but that interest upon (or compound) interest could not be recovered.</p> <p>State Sinking Fund Debt. — Acts of 1846, 1847 and 187%. — Interest.— Failure to Demand when Bonds were Due. — State bonds were issued in 1852 under the acts of 1846 (Acts 1846, p. 1), 1847 (Acts 1847, p. 3), authorizing the funding of the State debt, payable in the city of New York. The act of 1846 created a sinking fund for the payment of the State’s indebtedness. By an act of 1872 (Acts 1872, p. 27), the sinking fund was merged in the general fund of the State, and the State agency in the city of New York, and the sinking fund commissioners, established by the act of 1846, were abolished. Previous to 1872 such commissioners had stopped the payment of interest, and had declared that no interest would be paid on the bonds issued by authority of the acts of 1846 and 1847, because of the fact that none had been demanded for several years. Before stopping the payment of interest the commissioners had published a notice of their intention to do so, as to all bonds not presented in New York at the agency by a certain named date. This action of the commissioners was ratified by the act of 1872, and thebonds and interest declared payable at the office of the State treasury. In 1865 (Acts 1865, p. 48) an appropriation was made to pay off all of the State’s indebtedness. The bonds in suit were not presented for payment, nor was payment demanded, until about 1890.</p> <p>Held, that the action of the sinking fund commissioners in stopping payment of interest was unauthorized ; that that part of the act of 1872 ratifying such action was unconstitutional, and that such bonds drew interest until actually paid at the rate specified in the bonds. Compound interest was denied.</p>

<p>Street. — Obstruction of. — Mandamus.—Pleading.—A complaint in an action to compel a city by mandamus to remove an obstruction from an alley placed therein by a railroad company, with the consent of the city, must, in order to be sufficient, make it affirmatively to appear that an unlawful use is made of the alley.</p>

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

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

<p>Slander. — Pleading.—Answer.—In an action for slander in charging the plaintiff with adultery with one man, an answer which alleges that she was guilty of adultery with another man, is bad.</p> <p>Bill op Exceptions. — Time of Filing. — Where the record shows that the • bill of exceptions was not filed within the time allowed by the court, and it does not appear in the body of the bill when it was presented, the bill will not be regarded as properly in the record.</p>

<p>Deposition. — Suppression of Part of Answer. — The suppression of a part of a witness’s answer to a question propounded to him in taking a deposition, which has the effect of completely destroying his answer thereto, is error.</p> <p>Fraudulent Conveyance. — Trustee.—Lien of Judgment. — Proof of Consideration. — Assumption of Debt by Grantee. — Preference of Creditors. — W. was indebted to M. who was in failing circumstances, and said M. was indebted to A., G., B., T., L., I. and others. I. had a judgment against M. on his debt. W. conveyed a tract of land to A., in consideration of A. paying W.’s debt to M. and assuming the debts of G., B., T. and L., and cancelling his own debt against M. M. assented to this arrangement.</p> <p>Held, that it was error to refuse to allow W., after having fully testified to the arrangement, on cross-examination, to testify that part of the consideration was the assuming of M.’s debts to G., T. and others.</p> <p>Held, also, that it was not error to allow him to testify on cross-examination that M. desired to pay his debts; thathe was willing to agree to any arrangement to pay them off; that he, W., after seeing M., went to A. and A. agreed to take the tract at the price named by W. in payment of his debt from M., and that M. agreed to pay certain other of A.’s debts due to G., T. and others.</p> <p>Held, also, that A. was not a trustee for W.; that I.’s judgment was not a lien on the land conveyed; that a sale of such land upon execution issued on said judgment was void, if the transaction was entered into and carried out in good faith; that it made no difference how A. paid L., G., B. and T., and that I. could not object on the ground that he was not a preferred creditor.</p>

<p>Common Carrier. — Ejection of Passenger. — Damages.—The plaintiff, a boy of 16, became a passenger ou the defendant’s train, and gave the conductor his ticket. Afterwards the conductor again demanded a ticket, and refusing to believe the plaintiff’s statement that he had given him a ticket demanded fare. The plaintiff gave the conductor ten cents, all the money he had. The conductor accepted the money, but ordered the boy to get off the cars before reaching his destination, which he did, being thereby compelled to walk the remainder of the distance.</p> <p>Held, that damages in the sum of $195 were not excessive.</p>

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

<p>Fraudulent Conveyance. — Action to Set Aside. — Pleading. — Necessary Averments. — In a suit by a creditor to set aside a conveyance of property on the ground that it was made to defraud creditors, an averment that at the time the suit was brought the debtor had no property out of which the debt might be collected, or an averment equivalent thereto, is material and necessary, and its omission is fatal.</p> <p>Same. — Debtor’s Unsoundness of Mind. — Advantage Taken of by Grantee. — A creditor can not avoid a conveyance made by his debtor solely because the debtor was of unsound mind when he made it. Nor does the fact that the grantee, knowing of the debt and of the debtor’s mental weakness, took advantage of such weakness for the purpose and with the intention of thereby defrauding the creditor, authorize the creditor to appeal to a court of equity to set aside such deed, unless he is injured thereby.</p>

<p>Bastardy. — Evidence.—In a prosecution for bastardy the relatrix may properly be permitted to testify to repeated acts of sexual intercourse with the defendant prior to the time of the alleged conception, as tending to show the relations existing between the parties.</p> <p>Same. — Declarations.—Where, in such case, the defendant, to impeach the relatrix, introduces in evidence statements of the relatrix that the defendant was not, the father of the child, her statements that he was the father of the child, made about the same time, are admissible.</p>

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

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

<p>Schools. — Suspension of Pupil. — Mandamus.—Contempt of. — In an action to compel a city school superintendent by mandamus to re-admit to school the relator’s son alleged .to have been wrongfully suspended, the answer alleged that the boy had been suspended for a violation of a rule, which was set out. A demurrer to the answer was-overruled, and a reply of general denial was then filed. The trial resulted in a finding for the relator and a peremptory writ issued. Immediately thereafter the boy was re-admitted to school, but for a violation of the same rule for which he had been first suspended he was again suspended.</p> <p>Held, that the court by overruling the demurrer to the answer adjudged that the rule was reasonable, and hence the defendant was not in contempt in suspending the pupil a second time.</p>

<p>Decedents’ Estates. — Law Favors Equal Distribution of Estate. — Per Stirpes or Per Capita. — The law favors an equal distribution of an estate'among the children of the deceased owner; and it favors a distribution between near and remote heirs per stirpes in preference to per capita.</p> <p>Wide. — Construction in Doubt. — Descent Given by Statute Preferred. — If the intent of the testator is doubtful, and two constructions are applicable thereto, that construction will be adopted which casts the property where the law would cast it if no will had been .executed.</p> <p>Same. — Intent as to Particular Clause. — Entire Will Examined. — In the construction of a clause of a will the court will look to the whole instrument, if, by so doing, any light will be thrown upon the particular clause in dispute or to be construed.</p> <p>Same. — Construction.—Paramount Object. — The paramount object in construing a will is to construe it so as to express the true intention and meaning of the testator.</p> <p>Same. — Per Stirpes. — Per Capita. — A will provided that after the death or marriage of the testator’s wife, one-fourth part of his property should be “ held ” by his son, O., “ during his natural life, and in case he should die leaving no child or children of his own, then said property to go to any surviving child or grandchildren, in equal parts.”</p> <p>Held, that such fourth part was vested in O. for and during his natural life; one-third of the remainder, real and personal,in K., the surviving son of the testator, O. dying childless; one-third in his two grandchildren, who were children of a deceased son of the testator, and the remaining third in another set of grandchildren, children of another deceased child of said testator; such grandchildren inheriting per , stirpes and not per capita.</p> <p>Same. — Property in Trust. — Remainder.—A second clause provided that the testator’s son, D., shall “ have and hold ” one-fourth of the testator’s property “in trust (for his children now born, or-which may hereafter be born), during his natural life,” “with the right to use any income or rents of said property to aid in raising and educating said children,” without bond, “ but for any waste or abuse of trust [to] be removed, and another appointed by the court.”</p> <p>Held, that D. held and enjoyed this fourth part in trust for his children, born and to be born, for his natural life, subject to the trust and duty upon his part to appropriate so much of the rents, profits and income as was necessary for the purpose of raising and educating his children ; that the remainder, in fee simple and absolutely, vested in D.’s children, then in being, subject to open and let in any other children born thereafter to him ; and that D. was not required to give bond, but might be removed for waste or breach of trust.</p>

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

<p>Pleading. — Ansiver.—General Denial. — When the general denial is pleaded no error is committed by sustaining a demurrer to an answer which sets up only such facts as are admissible in evidence under the general denial.</p> <p>Practice. — Instructions.—Exceptions to Parts. — Where instructions, taken as a whole, state the law of the case correctly, error in a single instruction, or a clause of an instruction, will not be available for a reversal of the judgment.</p> <p>Supreme Court. — Request for Instructions. — Refusal of. — Available error can not be predicated on the refusal of a request for instructions where the record fails to show that the instructions were signed by the party, or his attorney, or that they were presented before the argument began.</p>

<p>Title. — Sheriff’s Sale. — Relation Bach to Date of Judgment. — The title of a purchaser of land, at a sheriff’s sale relates back to the time the judgment became a lien on the land sold, and all the right and interest possessed by the judgment debtor at the date such judgment became a lien vest in the purchaser.</p> <p>Same. — Color of. — A sale on a school fund mortgage, though void, gives a color of title to the purchaser.</p> <p>Judgment. — Lien.—Defendant Haring no 'Title to Land. — If the defendant has no legal title to the land the judgment against him is not a lien thereon.</p> <p>Same. — Extent of Lien. — A «judgment is a lien only upon the debtor’s interest in the land sought to be subjected to it,</p> <p>Equal Equities. — Priority of Time. — If - the equities of two parties are equal, the one first in point of time is the superior one.</p> <p>Subrogation. — Sale on Execution. — A purchaser at a sheriff’s sale acquires by subrogation the rights of the judgment plaintiff or execution creditor in the event that the sale is ineffective to convey title.</p> <p>Same. — Prior Equity. — In 1859 E., the owner of certain real estate, mort. gaged it to the State for the benefit of the school fund. In 1871 F. mortgaged the land to S., and the mortgage was foreclosed, but no sale was made on the decree. One month after such foreclosure the auditor sold the land by virtue of the school fund mortgage, and executed a deed to the purchaser, S. One year previous to such foreclosure six judgments were rendered against S. for a total sum of $20,000; executions were issued and levied upon the land. One year after the foreclosure the land was sold to L. on one of these executions, and he assigned the certificate of sale to J., and J. took out a sheriff’s deed thereon at the expiration of the year of redemption. Eight months after the foreclosure S. executed a mortgage to M., trustee, of which mortgage P. became the owner by assignment. Seven years after such foreclosure F. executed a quitclaim deed to U., who afterwards brought suit to set aside the sale under the school fund mortgage, and succeeded in obtaining a decree allowing him to redeem from it. A redemption • was made by him, he paying the money into court.</p> <p>Held, that J., and notP., was entitled to the money, upon the ground that their equities being equal, the one prior in point of time was entitled to preference.</p>

<p>Drainage. — Repairs. — Assessments. —Appeal.—Evidence. — Under section 1193, Elliott’s Supp., relating to the repair of ditches by the county surveyor, on an appeal to the circuit court from an assessment made by the county surveyor, apportioning the expense of repairing a ditch, evidence that the money expended by the surveyor was for excavating and repairing a ditch on a different line from that designated in the original specifications, is admissible.</p>

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

<p>Labor. — Preferred Claim. — Assignment for Benefit of Creditors. — Act of March 3d, 1885, TJnrepealed. — The act of March 3d, 1885 (Acts 1885, p. 36), which provides that all debts due any persons for manual or mechanical labor shall be a preferred claim in all cases against any individual^ co-partnership, etc., where the property shall pass into the hands of an assignee or receiver, was not repealed by the act of March 17th, 1885 (Acts 1885, p. 95), and is in full force.</p>

<p>Fraudulent Conveyance. — Action to Set Aside. — Rights of Creditors. — A 'creditor can not maintain for his own benefit a suit to set aside a fraudulent conveyance made by a debtor who afterwards executes a voluntary assignment for the benefit of creditors where the trust is accepted and fully administered, although neither the assignee nor the creditor has any knowledge of the fraudulent conveyance until after the final settlement of the trust and the discharge of the assignee.</p>

<p>Judge. — Inferior Court. — A judge or magistrate of a court of inferior jurisdiction, acting in a matter which is within his jurisdiction, is entitled to the same immunity accorded to a judge of a court of general jurisdiction.</p> <p>Same. — In such a case, a judge or a magistrate of a court of limited jurisdiction is acting within his jurisdiction if the court, over which he presides, has jurisdiction of the subject-matter, and he has acquired jurisdiction of the persons of the parties litigant.</p> <p>Same. — A court of limited jurisdiction has jurisdiction of the subject-matter in a given case if it has jurisdiction of -the class of cases to which the particular case belongs.</p> <p>Same. — A magistrate or a judge of any court, whether of general or of limited jurisdiction. only exceeds his jurisdiction so as to incur civil liability where he acts wholly without jurisdiction, and where the authority which he assumes to exercise is a usurped authority.</p> <p>Same. — Where a court of limited jurisdiction has jurisdiction in a given cause of both subject-matter and of the parties, an application for a change of venue, properly made and erroneously refused, will not render the judge or magistrate liable for thereafter assuming to retain jurisdiction and dispose of the case. Same. — Deciding a motion for a change of venue is a judicial act, and the immunity accorded for such decision extends to the consequences legitimately flowing therefrom.</p> <p>Same. — Mayor.—Change of Venue Denied. — Civil Liability. — A mayor who maliciously, or corruptly, refuses to grant a change of venue, upon proper application made, in a case pending before him, is not liable, civilly, to the person applying for it, although such person be fined and imprisoned as a result of the trial. Dietrichs v. Schaw, 43 Ind. 175; Barkeloo v. Randall, 4Blackf. 476; Krutz v. Howard, 70 Ind. 174, doubted.</p>

<p>Pleading. — Action on Bond. — Breach of Warranty. — Oross-Complaint—In an action on the bond of an insurance agent, a cross-complaint, based on a breach of contract, 'which alleges that the company sold to the agent renewals warranted to be worth a certain sum; that they were afterwards ascertained to be worth a much less sum, whereupon the contract was cancelled and the notes given in consideration for the renewals surrendered, does not state a cause of action, as the complainant is not shown to have been injured by the breach of the warranty.</p> <p>Same. — Answer.—B,elease of Bond. — An answer by the sureties on such bond alleging that the obligee agreed to cancel the bond on the compliance by the principal with certain stipulations, without alleging a compliance or an offer of compliance, is bad.</p>

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

<p>Judgment. — Enforcement Enjoined. — -Insolvency of Plaintiff. — Lien on Defendants Land Owed by Plaintiff. — An insolvent judgment creditor, seeking to enforce his judgment generally, who has conveyed to the judgment debtor, by warranty deed, a tract of land upon which there is a valid mortgage owed by such creditor, will be enjoined until such mortgage is satisfied, regardless of the fact that such creditor has especially agreed to pay it.</p>

<p>Descent. — Interest of Childless Second Wife. — Reversionary Interests of Heirs. — * Rights of Ch-edilors. — The act of March 31th, 1889, provides that where a man marries a second wife, and has by her no children, and dies, leaving children by his first wife, the interest of such second childless wife in the lands of the decedent shall be only a life-estate, and the fee of the same shall, at the death of such husband, vest in such children, subject only to the life-estate of the widow.</p> <p>Held, that the portion of the 1 and in which the widow takes a life-estate is free from the demands of creditors, and is not subject to be made assets by sale for the payment of debts.</p> <p>Held, also, that where all the lands of the decedent are,with the consent of the widow, sold to make assets, she is entitled to the value of her life-estate out of the proceeds of the portion subject to the life-estate, and that the children are entitled to the remainder of the proceeds of such portion.</p>

<p>Judgment. — Collateral Attach. — A judgment rendered by a court of competent jurisdiction against a defendant for violating the statute prohibiting the obstruction of public ditches can not be collaterally attacked.</p>

<p>Witness. — Impeachment of by Party Producing. — Surprise.—Discretion of Trial Court. — A party producing a witness may show that he has made statements different from his present testimony, upon the ground of surprise. In such an instance the matter is of necessity left very much to the discretion of the trial court. Section 507, R. S. 1881.</p> <p>Appeai. — Presumption.—Error.—The presumption, on appeal, is that the lower court did not commit an error.</p>

<p>Promissory Note. — Consideration.—Execution and Payment of Bail-Bond.— The defendant’s son, on a plea of guilty to petit larceny, was fined in a certain sum and committed to jail in default of payment. The defendant and his son paid a part of the judgment, and to secure a stay of execution on the remainder executed a replevin bond. The plaintiff, at the request of the defendant, also signed the bond, and the defendant executed his note as collateral security. The son was not in jail when the bond was signed, but had been released two days before. After the expiration of the stay the plaintiff paid the judgment and instituted an action on the note.</p> <p>Held, that the fact that the son had been released from jail when the plaintiff signed the bond was no defence to the action, and that execution of the bond and the payment constituted a good consideration for the note.</p>

<p>Deed. — Construction.—Life-Estate and Remainder. — Rule in Shelley's Case.— The grantor conveyed to the grantee by deed certain real estate, “for life, and after his death to the then living children of his body; ” a right to a living off the real estate was reserved to the grantor, it being expressly understood that “the grantee is to have no greater interest than a life-estate, and that at his death said tract shall go to the children of his body then living.”</p> <p>Held, that the rule in Shelley’s Case does not apply, and that the grantee took only a life-estate, and that the children, who were living at the time of the making of the deed, and at the death of the grantor, took the fee.</p>

<p>Fraud. — Concealment by Attorney of Material Fact. — If an attorney misleads his client, who is relying upon him, by the fraudulent concealment of material matters or by false statements, the transaction will be annulled by the courts.</p> <p>Partition. — Collateral Attach. — A partition sale after it-is confirmed can not be collaterally attacked on the ground that the commissioner, who was the attorney of the complaining party, entered into a conspiracy to defraud the plaintiff of his right in the land sold. An independent action to set the sale and transfen aside does not lie.</p> <p>Pleading. — Complaint.—Sufficiency of. — See opinion for a complaint sufficient to show fraud in a commissioner’s sale of land.</p>

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

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

<p>Moetgage. — Action to Foreclose. — Plea of Payment. — Sufficiency of Evidence.— In an action on a mortgage alleged to have been lost, where, as tending, to establish a plea of payment, one witness testifies that the plaintiff told him that “ the mortgagor had lifted the mortgage,” and another testified that she saw the mortgage in the possession of the mortgagor, a verdict for the defendant will not be disturbed as unsupported by the evidence.</p>

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

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

<p>Will. — Life-Estate.—Rule in Shelley’s Case. — Where the testator in his will devises an estate to his son for life, and provides that at the son’s death the persons who would have inherited from the son, had he owned the fee at the time of his death, shall take the same and in the same proportion as the law would cast it upon them, and declares that the provisions of the item shall “ only vest in the devisee a life-estate * * and no more,” the rule in Shelley’s Case does not apply and the son takes ■only a life-estate.</p>

<p>Real Estate. — Purchaser at Sheriff’s Sale. — Title.—Relation Back to Rendition oj Judgment. — The title of the purchaser of land at a sheriff’s sale relates back to the rendition of the judgment on which the sale is made. Same.— Wrongful Possession. — Damages.—After the expiration of the year for redemption the purchaser at the sheriff’s sale is entitled to a judgment for possession, and for damages to the amount of the rental value against a purchaser from the judgment debtor, subsequent to the rendition of the judgment, who wrongfully continues in possession after the expiration of the year for redemption.</p> <p>Same. — Loss by Pire. — Liability of Occupant. — The purchaser from the judgment debtor does not become a mere trespasser by remaining in possession, since his entry into possession was rightful, and he is not liable for the loss of the building by fire, the result of an accident, during his occupancy of the property.</p> <p>Pbactice. — Cross-Errors.—Amount of Recovery. — Question of, How Presented. —Where a plaintiff desires to present a question as to the amount of recovery, the correct practice is to move for a new trial, and assign the proper cause in the motion.</p>

<p>Criminal Law. — Embezzlement by Guardian. — Affidavit and Information.— Sufficiency of. — Statute of Limitations,. —An affidavit and information against a guardian for the embezzlement of the funds of his ward charged that the defendant on the day of his appointment as guardian, October 10th, 1879, collected money and other personalty belonging to the ward; that the ward became of age March 5th, 1889, and that on November 28th, 1890, a demand for settlement was made, which the defendant refused to comply with, and converted the money to his own use.</p> <p>Held, that as the date of the demand for settlement, though not the date of the reception of the money by the guardian, was within the period of limitation, the affidavit was sufficient, and that a prosecution instituted December 19th, 1890, was not barred by the statute.</p> <p>Held, also, that an averment in the information, that the accused fled from the county and concealed himself, is not sufficient to avoid the operation of the statute of limitations, where there is no averment as to how long the absence or concealment continued.</p> <p>Guardian and Ward. — Guardian. — Void Order of Removal. — Collateral Attack. — An ex parte order of the circuit court removing a guardian, made without notice to the guardian, and without appearance by him, is void and may be collaterally attacked.</p>

<p>From the Dela ware Circuit Court.</p>

<p>Negligence. — Pleading.—Particularity.—Indefiniteness.—In an action for negligence it is not necessary that the complaint specify, with any great degree of particularity, the elements entering into the cause of the action in order that it may withstand a demurrer. If the defendant desires a more particular statement, a motion that it be inserted is the proper practice.</p> <p>Same. — Steam Engine out of Repair. — A steam engine in use which is so out of repair as to be in an unsafe condition for such use is a nuisance.</p> <p>Same. — Lessor not Liable. — A lessor is not liable for an explosion of steam boilers he leases to a lessee caused by defects arising therein subsequently to the lessee’s taking possession thereof, even though they be in such a condition that they will naturally become dangerous if the tenant fails to repair'them.</p>

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

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

<p>Receiver. — Action by Against Tenant Wrongfully Holding Over. — Leave of Court. — Pleading.—Complaint.—Where one holding under a receiver as • lessee or tenant refuses to surrender, the receiver is entitled to maintain an action to recover possession in his own name without an order of court, and the complaint need not allege that the receiver has been authorized by the court to bring the action.</p> <p>Same. — Title.—Estoppel.—One who has taken a lease from and become the tenant of a receiver, is estopped to deny the title of his lessor while he remains in possession under the lease.</p>

<p>Mechanic’s Lien. — Notice.—Sufficiency of. — A notice from a material man of his intention to hold a lien “ for work and labor done and material furnished by me in the construction and erection of said house, which work and labor done and material furnished was done and furnished by me at your special instance and request,” sufficiently shows that the material was furnished for the owner’s building.</p> <p>Same. — A notice to the owner from a material man of his intention to hold a lien is sufficient, whether oral or written, if it puts the owner on his guard, and enables him to take steps to protect himself against loss.</p>

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

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

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

<p>Guardian and Ward. — Action on Bond. — Burden to Show Breach. — Exceptions to Report. — Burden.—In an action on a guardian’s bond the burden is on the relator to show a breach of its condition; but on exceptions to his report the burden is on him to show that the money expended was for the best interests of his ward.</p> <p>Same. — Ex Parte Orders. — Effect.—Collateral Attack. — Ex parte orders made by the court in a matter of a guardianship, whether by way of direction to the guardian, or of approval of action theretofore taken by him, are regarded as prima facie correct, but, as a rule, are within the control of the court making them until final settlement of the guardianship. At any time before final settlement and discharge of the guardian they may be set aside, corrected, or modified, but they can not be collaterally attacked, as in a suit upon the guardian’s bond for a misapplication of the funds of the trust. The only attack that can be made upon them is in a direct proceeding in the court having control over them.</p> <p>Same. — Action on Bond, — Plea of Payment. — Evidence.—In an action upon a guardian’s bond for misapplication of the funds of the trust, under the general denial, the guardian may show an application of such funds pursuant to orders of the court, a plea of payment being unnecessary ; and a witness may testify to the payment of the money pursuant to such orders, and to the fact that he ascertained the amount by calculation required to be paid over.</p>

<p>Mandamus. — -To Justice of the Peace. — Dismissal of Action. — Judgment for Costs. — Issuance of Execution. — Where a civil suit is dismissed by a justice of the peace for want of prosecution, he may be compelled by mandamus to enter a judgment in favor of the defendant against the plaintiff for his costs, andlo issue an execution thereon.</p>

<p>Vendor and Purchaser. — Possession.—¿Notice.—Where the owner of a farm conveys to a railroad company a strip of land eighty feet wide for a right of way and the company takes possession of forty feet only and fences the same in and constructs its road thereon, leaving the remaining forty feet in the possession of the owner, who continues to use it as a part of his farm, the conveyance not having been recorded, the railroad company’s possession of the part occupied and used is not constructive notice to a subsequent purchaser of the farm of the extent of the railroad company’s purchase. Nor is a recital of the deed to such purchaser to the effect that his conveyance is subject to the right of way of the railroad company notice to him that such right of way is of greater extent than the way actually occupied.</p> <p>Pleading. — Reply.—Demurrer.—Practice.—A reply, pleaded with the general denial, which sets up only such facts as are admissible under the general denial, is demurrable, and the subsequent withdrawal of the general denial will not render the ruling sustaining the demurrer available error.</p>

<p>CbiminaIí Law. — Appeal by the State. — Instmetion.—Review.—In an appeal by the State, where there is no statement in the bill of exceptions show-' ing that there was evidence to which the instructions requested were relevant, no question of law is presented upon the refusal of the request.</p>

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

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

<p>Supreme Court. — Practice.—No question is presented on the ruling of the trial court in excluding, in a prosecution for rape, a report made by the grand jury where the report is not embodied in the bill of exceptions.</p>

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

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

<p>Highway.— Vacation Proceedings. — Order Approving Report of Reviewers.— May be Appealed from. — Where, in a proceeding to- vacate a highway, viewers are appointed who report in favor of the vacation, and upon remonstrance reviewers are appointed who report against the vacation, an appeal will lie to the circuit court from the final order of the board approving the report of the reviewers, and the case may there be tried de novo. McKee v. Gould, 108 Ind. 107, and Bowman v. Jobs, 123 Ind. 44, distinguished.</p> <p>Coffey, J., dissents.</p> <p>Same. — Inutility of Highway. — Finding.—Where the circuit court, without the intervention of a jury, finds that a highway will not be of public utility, and that it should be vacated, this court will not disturb the finding where there is evidence to support it.</p> <p>Same. — Damages for Vacation. — Court's Refusal to Allow. — New Trial. — A. person through whose land an established highway is sought to be vacated is entitled to recover such damages as he may sustain by the vacation; and where the evidence is undisputed that such person is entitled to damages, the remonstrant should be given a new trial on the refusal of the court to allow damages.</p>

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

<p>Married Woman. — Contract of Suretyship. — Estoppel.—A husband and wife executed a second mortgage upon two parcels of land, one of which was owned by the husband and wife jointly, the other by the husband in severalty, to indemnify the mortgagees against loss as sureties for the husband. To enable the husband and wife to borrow money to discharge the lien of the first mortgage and thereby to avoid a threatened foreclosure, the indemnifying mortgage was released on the agreement of the husband and wife to execute a junior mortgage in place of the released mortgage, and assign to the mortgagees, as collateral security, a note belonging to the wife.</p> <p>Held, that the wife was the surety of the husband in the entire transaction ; that she was entitled to the possession of the note pledged as collateral security, not being estopped to assert her right to the possession, ' as the mortgagees, with knowledge of the facts, were chargeable with knowledge of the legal consequences.</p>

<p>Ceiminai, Law. — Assault and Battery. — Jurisdiction-Circuit Courts. — The act of March 9, 1889 (Acts 1889, p. 363), which provides that upon conviction of assault and battery, in the courts named in the section, the punishment shall be as therein stated, does not deprive the circuit court of jurisdiction of the offence.</p> <p>Same.— Unreasonable Punishment of Child.- — -Verdict.—Review on Appeal. — On a prosecution of a father for an assault and battery on his child, it appeared that the father chained his fourteen-year-old child to a sewing-machine, and left her thus alone in the house with her infant brother during the day.</p> <p>Held, that a verdict that the punishment was unreasonable and unlawful, will not be disturbed on appeal.</p>

<p>Continuance. — Application for Unsupported by Affidavit. — Disregarding of.— An application for a postponement of a trial on account of the absence of a witness, which is unsupported by the affidavit required by section 410, E. S. 1881, may be properly disregarded.</p> <p>New Trial. — Refusal of Application for Continuance. — The refusal of an application for a continuance on the ground of the absence of a witness is not cause for a new trial where the facts expected to be proved by the absent witness were proved by another witness .as fully as it was possible to prove them.</p> <p>Abgtjment oj? Counsel. — Misconduct.—Where the prosecuting attorney, in argument, spoke of a witness for the defendant as “this scoundrel who has served a term in the penitentiary,” there being no evidence to support the charge, he was guilty of misconduct, and the refusal of the court, upon objection made, to attempt to correct it, was reversible error.</p>

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

<p>Municipal Corporation. — Defective Sidewalk. — Personal Injuries. — Pleading. — Complaint.—A complaint against a city to recover for an injury in consequence of a defective sidewalk, which alleges that a sidewalk had been negligently left out of repair and unsafe for use, of which the city had notice for more than a month; that while plaintiff was carefully walking along it in the night-time, it gave way under his weight, by reason of its decayed condition, and he was, without fault on his part, precipitated down an embankment, sustaining injuries, states a cause of action.</p> <p>Same. — Failure to Place Signals. — Such complaint is not defective for failing to allege that proper signals of the dangerous condition of the sidewalk were negligently omitted to be placed so as to warn travellers of its dangerous condition.</p> <p>Same. — Defence Admissible under General Denial may be Struck Out. — An answer to such complaint, pleaded with the general denial, which allegés that the plaintiff knew the defective condition of the sidewalk, hut that, notwithstanding such knowledge, he voluntarily, and of his own free will, ventured to travel on the same, and assumed the risk of his journey thereon, may properly be’ stricken out, since it alleges only such matters as are admissible under the general denial.</p> <p>Same. — Defence.—In such action an answer alleging that the city was indebted up to the constitutional limit, and had no funds available for the repair of its streets and sidewalk, presents no defence, since a city has power under sections 3162, 3164,3165, R. S. 1881, to repair its streets and sidewalks at the expense of adjacent property-owners.</p> <p>Instructions to Jury. — Where it does not appear that all the instructions given are in the record, an objection that the court erred in refusing to give certain instructions asked, is unavailing.</p> <p>Juror. — Misconduct of. — New Trial. — Misconduct of a juror in separating from the other jurors, after they had retired to deliberate of their verdiet, without the permission of the court, and remaining out of sight of the bailiff and the .other jurors for a half hour, when it appears that during such absence he did not communicate with any one in relation to the case or upon any subject connected therewith, is not such misconduct as to authorize a new trial.</p>

<p>Fbatjdtjlent Conveyance. — Assignment.—Creditors Preferred by Mortgages Given Them. — Part of Assignment. — A debtor in failing circumstances and contemplating mating an assignment of all his property for the benefit of his creditors, may prefer such of his creditors as he sees fit to do so, by executing to them mortgages upon his property to secure their debts; and if the transaction is in good faith it matters not how short an interval of time there is between the execution of such mortgages and the deed of assignment, so that the former, in point of time, in their execution, precede the latter. Such mortgages do not become a part of the assignment, and are not to be taken in connection with the deed thereof.</p>

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

<p>Statute of Frauds. — Agreements not to be Performed Within One Year.— Where by the terms of a contract, it is not to be performed within the year, or where it can not be performed within the year, according to the intent and understanding of the parties, as evidenced by its terms, such contract is within the statute, and an action can not be maintained upon it. The statute of frauds has no application to a contract which may or may not be performed within a year.</p> <p>Same. — Contract.—Construction.—An oral contract whereby the plaintiff was to trade certain land belonging to the defendant for other lands, and to pay the difference in money to be furnished by the defendant, and whereby, when the trades were made, and title to the lands acquired, they were to become partners, to use the land together, sell the timber and sell the land and divide the profits “ after paying back to the defendant what he was out,” is not within the statute of frauds prohibiting the bringing of an action on an oral agreement not to be performed within one year.</p> <p>Arrest of Judgment. — Complaint.—A motion in arrest of judgment will not lie if a complaint contains one good paragraph.</p>

<p>Advancement. — Presumption.—Burden of Proof. — A voluntary conveyance-of land by a parent to a child is presumed to have been intended as an advancement, and the burden of proof is upon the party claiming that it is not.</p> <p>Pabtition. — Interlocutory Order. — Advancement.— Where partition is ordered the court can do no more than fix the amount to be charged against a co-tenant as an advancement, and the commissioners make the proper apportionment of the land between the tenants, deducting from the share of a tenant the amount advanced to him.</p> <p>Same. — Buie for Commissioners. — The commissioners, in making partition, must apportion and set apart to each tenant, by metes and bounds, the. portion in value to which he is entitled; and if there be advancements to be taken into consideration, they ascertain the value of the land to be partitioned, together with the advancements to the tenants, and apportion to each tenant his share of the real estate. If, by reason of an advancement, a tenant is not entitled to a part of the real estate, then they apportion it between the other tenants. Their acts are not judicial, but mere computations based on the judgment of partition defining the share of each tenant.</p> <p>Witness.— Widow. — Competent in a Partition Suit of Her Deceased Husband’s Land. — Effect of Advancement on Her Interest. — In an action for partition by the heirs of a land-owner, his widow, though a party to the record, is competent to testify to the statements of her husband concerning advancements made to one of the heirs, if no objection is made that such statements are confidential and for that reason incompetent. Advancements made by her husband in no way affect her right to one-third of his real estate, and she has no interest in the controversy in relation to such advancements.</p>

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

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

<p>Damages. — Child.—Parent's Might to Recover for Loss of Services. — Kindness and Attention to Family. — In an action by a father for the death of his child it is not error to instruct the jury that in estimating his damages they may consider the condition of his family at the time of the aeci•dent, take into account all the services the child might reasonably have performed in the family until it attained its majority, including actual labor in helping to carry on the household affairs, the pecuniary acts of kindness and attention which might reasonably be anticipated that it ■would have performed which would administer to the family’s comfort as well as their necessities, if accompanied by the statement that they can not consider the fact that the father has been deprived of the happiness, comfort and society of his child, nor acts of affection simply and loss of companionship, and that the recovery is limited by law to the actual pecuniary loss.</p> <p>Practice. — Objections to Question. — Only objections raised in the trial court to a question put to a witness will be considered in the Supreme Court; and other grounds for the exclusion of such a question will not there be available.</p> <p>Negligence. — Contributory.—Crossing Track. — Approaching Train Obscured by Cars Standing on Side-Track. — A child seven years of age attempting to cross a railroad track at a street crossing, when a train standing on such crossing is so moved as to give a clear passage way, is not guilty of such contributory negligence as will defeat a recovery by its father, if another train on an opposite and parallel track, and only a few feet from the first track, unseen by the child, suddenly strikes and injures such child in attempting to cross the second track, when if it had remained standing between the tracks it would have escaped injury.</p>

<p>Witness.— Volunteer Statement. — Cross-Examination.—Where a witness, on direct examination, volunteers a statement not called for, and the statement is allowed to go to the jury without objection, it is not error to permit a cross-examination relative to the volunteer statement.</p> <p>Bbid&e. — Injuries Caused by Breaking Down of. — Traveller’s Knowledge of Defect. — Instruction.—In an action against a county for injuries caused by the breaking down of a bridge, an instruction that if the plaintiff was acquainted with the bridge, and knew the kind of timbers of which it was constructed, and knew how long such timbers had been in the bridge, “ the plaintiff is chargeable with knowledge of the tendency of such timbers to decay, incident to age and long use,” is erroneous. In approaching a bridge the traveller has a right to assume that the officers charged with its erection and maintenance have done their duty, and that he can pass over it in safety.</p> <p>Same. — Instruction.—In such action an instruction that if the plaintiff knew the kind of timbers of which the bridge was constructed, the length of time they had been in it, that a part of the same kind of timber still remained, and that plaintiff might have reached his destination by travelling another route, the jury might consider the plaintiff’s knowledge of such facts in determining whether the bridge was unsafe; and whether the plaintiff had knowledge of its actual condition, is erroneous.</p>

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

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

<p>Dbainage. — Authority of Drainage Commissioners.— Objections. — The authority of drainage commissioners to act in the matter of opening a ditch can not be questioned for the first time by a motion for a new trial.' Same. — New Trial. — It is no ground for granting a new trial to the appellant that other lands than his were not properly assessed.</p>

<p>Mobtgage. — Reformation After Foreclosure and Sale. — Where, by mutual mistake of the parties, the description of the mortgaged premises is so defective that no title will pass under a sale, or where, by such mutual mistake, land is described which does not belong to the mortgagor, instead of land which does, there may be a reformation of the mortgage even after sale.</p> <p>SAME; — Debt Extinguished by Sale of Land under Recree. — In case of such a mutual mistake in the land intended to be mortgaged, yet if land is mortgaged which is owned by the mortgagor, and there is a foreclosure, sale and purchase thereunder by the mortgagee, and the amount of the bid is the amount of the debt due, and the land purchased is worth in value the amount of the bid, the debt is paid, the mortgage extinguished, and there can be no reformation.</p> <p>Judgment. — Satisfaction by Sale. — A sale of land on execution or order of sale which has not been set aside, is a satisfaction of the judgment to the extent of the net amount realized by the sale.</p> <p>Tbust. — Guardian Purchasing Land with Ward’s Money. — A guardian who purchases and improves a lot or tract of land with his ward’s money, taking the title in his own name, creates a resulting or constructive trust in the lot or tract in favor of the ward.</p> <p>■Same. — While the legal title remains in the guardian, one who, in good faith, huys and acquires a title from him, or takes a mortgage from him on such property, without any notice of the ward’s equity, acquires rights therein superior to those of the ward.</p>

<p>Fraudulent Convey atsge. — Plaintiff Himself Having Conveyed Land, Sought to be Beached is not Estopped. — Collateral Attack on Decree of Settlement.— A father bequeathed his real and personal estate to his wife during her life, to be used and enjoyed by her as she might direct. The real estate,.however, could not be sold nor disposed of until after her decease, unless it was necessary for her support and maintenance after the personal property had been exhausted. The rents and profits were given to the wife. After the death of his wife, all his real estate, and such of his personal estate as she had not consumed, were given, in equal parts, to his three children, John, George a'nd Mary. His wife qualified as executor, and loaned George, of the assets of the estate, several thousand dollars, taking his notes due to herself personally. After his mother’s death John qualified as executor of his father’s will and recovered judgment on the notes in favor of his father’s estate, and it was a part of the judgment that no execution should issue upon the judgment until the estate was settled. At the final settlement of the estate, this judgment against George was assigned, by decree of the court, to John, and it was decreed that there was due thereon from George to John a specified amount. In an action by John against George to subject the interest in the real estate, which he had inherited from his father, and which it was alleged he had fraudulently conveyed to his wife, and that he was insolvent,to this decree,</p> <p>Held, that the complaint stated a good cause of action, and that there were not two or more causes of action improperly joined; that John was not estopped from subjecting the real estate that George had fraudulently conveyed to his wife to his claim, by reason of the fact that he, John, had himself conveyed all his interest therein by a warranty deed he having the right to prosecute the action for the benefit of his grantee and to save himself from liability on his warranty; that the decree in the settlement of the father’s estate settled the right of John to recover the balance due on the judgment against George, and that that fact could no longer be controverted.</p> <p>Same. — Statute of Limitations. — Practice.—Immaterial Error. — The wife of George plead the six years’ statute of limitations.</p> <p>Held; that the facts alleged in the complaint,which were not controverted and were matters of record introduced in evidence, showed that the cause of action arose within six years previous to the commencement of the action, and that there was no available error in sustaining a demurrer to the answer.</p> <p>Decedents’ Estates. — Heir’s Share of Proceeds Set Off Against Debt Due Estate. — A debt due the estate from a legatee may be retained out of his distributive share of the surplus proceeds of the estate and applied to the payment of a debt due the estate from such heir, although such indebtedness arose after the death of the decedent.</p> <p>Advancement. — Money Borrowed by an Heir from, the Estate. — Money borrowed from the estate by an heir may be treated as an advancement in an action brought by the heirs for a partition of the decedent’s estate after the estate is settled.</p>

<p>Mandamus. — Governor Can Not he Mandated. — The courts can not, by man-damns, compel the Governor of this State to act in matters affecting his gubernatorial duties. Mandamus does not lie to compel him to issue a commission to a person claiming to be elected to an office. Gray v. State, ex rel., 72 Ind. 567, distinguished.</p> <p>Constitution. — Three Departments Distinct. — One department of the government can not invade the province of either of the other two.</p>