Volume 129 — Indiana Reports

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

<p>Mortgage. — Insanity of Mortgagor. — Setting Aside Decree of Forecloswre.— Where a valid mortgage is executed by a husband, his wife joining, a decree of foreclosure will not be set aside because when it was rendered the husband was insane, at least where the defendant was a purchaser in good faith after a judgment for possession, and where there is no tender of payment.</p>

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

<p>Schools. — Study of German. — Statute Construed. — In the act of May 5,1869,. section 4497, B. S. 1881, which provides that “ whenever the parents or guardians of twenty-five or more children in attendance at any school of a township, town, or city, shall so demand, it shall be the duty of the school trustee, or trustees, of said township, town, or city, to procure efficient teachers, and introduce the German language as a branch of study into such schools,” the words “ any school ” mean any place where a public school is taught, with its complement of teachers and • scholars.</p> <p>Same.— Where German Must be Taught When Demand is Made. — Where, under such statute, the requisite demand is made on the board of school commissioners for the teaching of German in a certain school of a city, the requirement of the statute is not met by providing that the language shall be taught in another school of the city when the pupils have reached a certain grade, but it must be taught in the particular school where the demand is made.</p> <p>McBride, J., and Olds, J., dissent.</p> <p>Same. — Refusal to Introduce German Because of Lack of Funds. — Insufficiency. of Excuse. — The board of school commissioners can not set up a lack of funds as an excuse for their refusal to introduce the study of German, where it appears that studies not named in the statute as required studies are taught at -an expense greater than would be necessary for the teaching of German.</p>

<p>Office and Offices. — Officers de fado and de jure. — Salary.—Where a defacto officer assumes to retain the office after the qualification of the-officer de jure and continues to discharge its duties, a payment of salary to such de facto officer by a disbursing officer of the State, with full knowledge of the invalidity of the de facto officer’s title, is no defence to an action for the salary by the officer de jure, who has also discharged the duties of the office.</p> <p>Appbofbiation. — For Salary. — Constitutional Law. — In an act appropriating money to pay the salary and expenses of a certain office, a provision that it shall be paid to a certain person named and none other, is unconstitutional and void as attempting to adjudicate as to who is the legal officer entitled to the salary.</p>

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

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

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

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

<p>Dbainage. — Bitch, Assessment. — Belinquency.—The assessment for the construction of a ditch, under sections 4285-4317, B. S. 1881, becomes due upon the acceptance of the work by the surveyor, and where the certificate of acceptance is filed with the auditor in August, the assessment becomes delinquent if not paid on or before the first Monday of November, and the land may be sold. Cullen v. Strauz, 124 Ind. 340, followed.</p> <p>New Tbial. — Excessive Bamages. — The fourth cause for a new trial, viz., • “ Excessive damages,” is proper only in cases of torts.</p>

<p>Will. — Construction.—Life-Estate.—Power of Disposition.— Vested Remainder. — The will of the testator, after mentioning the disposition of certain property during his lifetime, devised to his wife all of his other property, to be held and used by her during her natural life. The will also provided, as to certain notes, that she was to collect the same, with the privilege to use so much thereof as she might deem necessary to carry on her business, etc. The will further provided: “But before her (the wife’s) death, I desire her to provide by will, or otherwise, for a distribution of whatever of my estate may remain in her hands among her and my children in such manner as she in her judgment shall deem best and most equitable. Such distribution not to take effect until after her death.”</p> <p>Held, that when a will limits the estate of the first taker to life, the devisee can not take a fee, although he may be invested with a power to appoint those who shall take that estate.</p> <p>Held, also, that under the will as to the personal property a right was vested in the widow to use such of it as she chose, and to distribute what remained at her death, at her pleasure, among the members of the class designated by the testator.</p> <p>Held, also, that as to the real estate the fee was not in the widow at any time, and she could not devise the same, and that the remainder was vested in the heirs at the date of the testator’s death.</p> <p>Same. — Disinheritance of Heir. — Ambiguity as to. — An heir can not be disinherited unless the intention to disinherit be expressed, or is to be clearly and necessarily implied. Where one construction of an ambiguous will leads to the disinheritance of the heir, and another to a result favorable to the heir, the latter construction must be adopted.</p> <p>Same. — The Word “Estate” In. — How Construed. — The word “estate” in a will may, if it is necessary to do so in order to carry out the intention of the testator, be construed to mean one species of property only. It does not always mean both real and personal property.</p>

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

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

<p>Subrogation.— Void Mortgage. — Judgment.—Payment of by Mortgagees. — A husband and wife, who were under guardianship, falsely represented that the guardianship had been terminated, and that they had been adjudged of sound mind, and they induced a firm of attorneys to accept a mortgage on the undivided interest of the wife in certain real estate, to secure the compensation agreed upon for legal services to be rendered. Prior to the date of the guardianship a judgment had been rendered against the wife, which was a lien upon her interest in the real estate mortgaged as aforesaid.</p> <p>Held, that the mortgage was void by reason of the legal incapacity of the mortgagors to execute the same.</p> <p>Held, also, that the attorneys, having paid off the judgment rendered against the wife to protect what they erroneously supposed was a valid mortgage, were entitled to be subrogated to the lien of said judgment, with priority over a judgment rendered in favor of the guardian for services, etc.</p> <p>Same. — Rigid of.— Upon what Depends. — The right of a creditor to be subrogated to the securities of one whose claim he has paid, does not depend upon the solvency or insolvency of the debtor, but upon the circumstances attending the payment of the debt, to which the security was an incident.</p> <p>Same. — The right of subrogation does not depend upon or grow out of the ability of the parties to make valid contracts, as it is not founded upon contract, either express or implied, but upon principles of equity and justice, intended to afford protection to a meritorious creditor, and prevent the sweeping away of the fund, from which, in good conscience, he ought to be paid.</p>

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

<p>^Municipal Corporation. — Ordinance Relating to Explosive Substances.— Invalidity of. — A. city ordinance placing restrictions upon the keeping and storing of inflammable or explosive oils is invalid which fails to specify the rules and conditions to be observed in such business, and which does not admit of the exercise of the privilege by all citizens alike, who will comply with such rules and conditions; but which does admit of the exercise of an arbitrary discrimination by the municipal authorities, between citizens who will so comply.</p>

<p>Pleading. — Overruling Motion to Strike Out. — Not Reversible Error. — Over- • ruling a motion to strike out a pleading or a part of a pleading is not error for which a cause will he reversed.</p> <p>Practice. — Circuit Court. — Presumption in Favor of Rulings. — The circuit court is entitled to every reasonable presumption in favor of the regularity of its proceedings. In this court it must affirmatively appear that the court below erred to justify reversing its judgment.</p> <p>Same. — Evidence.—Pailure to Object to. — Alleged error in the admission of evidence will not be considered on appeal where the record fails to show that any objection was made or exception taken in the trial court.</p> <p>Supreme Court. — Conflicting Evidence. — Reversal of Judgment. — Where the evidence is conflicting, if there is some evidence tending to sustain the verdict, the judgment will not be reversed by the Supreme Court.</p> <p>Mechanic’s Lien. — Dwelling and Appurtenant Buildings.— Joint Lien.— Where work has been done in the repair of a dwelling-house and outbuildings, which are appurtenant to the dwelling, a joint lien may be taken upon the dwelling with the appurtenant out-buildings.</p>

<p>Agreed Case. — Agreed State of Facts. — An agreed state of facts is not an agreed case under section 553, R. S. 1881, providing for submitting agreed cases.</p> <p>Same. — Where, asbere, the proceeding on its face appears to be an actual adversary proceeding, and there is nothing to indicate that it is a feigned action, the agreement as to the evidence will not change the character of the case, nor will it overturn the presumption that there is an actual controversy.</p> <p>Limitation of Aotion. — Suit to Enforce Legacy. — Fifteen Tears’ Statute of Limitations. — A testator bequeathed to his son A. a legacy of two hundred dollars, and devised to his son B. the residue of his estate. The legacy to A. has never been paid. B. took possession of the real estate devised to him upon the death of his father. Testator owed no debts at the time of his death, and left no personal estate. On a judgment recovered against B. the land was sold, and a deed executed to the purchaser. The administrator, more than sixteen years after the will was admitted to probate, sought to enforce the legacy against the purchaser of the land, and petitioned for an order to sell the real estate of his decedent for the payment of debts due from the estate.</p> <p>Held, that the suit is barred by the fifteen years’ statute of limitations.</p>

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

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

<p>Pleading. — Sufficiency of Answer. — Reply.—The Supreme Court will not look beyond the allegations of an answer, to the reply, for the purpose of determining its sufficiency.</p> <p>Same. — Exhibits.— When Pari of Pleading. — Exhibits are to be considered as a part of a pleading only in cases where they are copies of the instrument upon which the pleading is founded.</p> <p>Practice. — Assignment of Error. — Failure to Make Specific Objection. — Where it is assigned as error that the court erred in rendering judgment upon a demurrer, but no specific objection was made thereto, and no exception was taken, the judgment will not be disturbed.</p>

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

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

<p>Mortgage. — Foreclosure.—Inadequacy of Security. — Rents and Profits During Year for Redemption. — Receiver.—Where lands are sold at a mortgage foreclosure sale, and the mortgage creditor is the purchaser, if he shows that the mortgaged lands are inadequate to secure the debt, that the debtor is insolvent, and that the lands, or a material part of them, are in the actual occupancy of tenants who are to pay rent therefor by a share of such crops as they raise thereon, or otherwise, a court of equity may appoint a receiver to collect the rents and profits accruing from that portion of such lands as are occupied by tenants, and hold them to the expiration of the year allowed for redemption, subject to the order of the court, to be paid to the debtor, if he redeems, or to the mortgage creditor, if the debtor does not redeem. Elliott, J., and Miller, J., dissent.</p> <p>Same. — Redemption.—Receiver.—Statutes.—For a consideration of section 767, R. S. 1881, providing for the redemption of lands from judicial sales, and clause seven of section 1222, R. S. 1881, relating to the appointment of receivers during the time allowed for redemption, see opinion.</p>

<p>Arbitration and Award. — Action for Work and Labor. — Counter-Claim for Fraud — Submission to Arbitration.— Award, Bar to Subsequent Action. — In an action for work and labor and for material furnished in the construction of a building, the defendants pleaded a counter-claim claiming damages occasioned by the alleged fraud and misrepresentation of the plaintiffs in relation to the estimates of material and the cost of construction of such building. All matters in dispute in the action, matters of defence, counter-claims, etc., were submitted to arbitration, and a finding made by the arbitrators in favor of the defendant.</p> <p>Held, that the award was a bar to any subsequent suit against the plaintiffs for the alleged fraud set up in the counter-claim.</p> <p>Same. — Joint Tort Feasors. — Award Against One. — Effect of upon Others.— The defendants, by setting up their claim for damages on account of the fraud complained of as a counter- claim against one of the alleged tort-feasors, and submitting the whole controversy to arbitration, thereby elected to rely upon such proceeding for their compensation, to the abandonment of the other tort-feasors.</p> <p>Same. — Pleading.—Reply.—Demurrer.—Where, in an action against such tort-feasors, the answers show tliat everything connected with the former action was submitted to arbitrators, and that their award covered the whole ground of the controversy, a reply is demurrable which does not dispute the fact that all demands, including that embraced in the counter-claim, were submitted to arbitration, but alleges simply that the arbitrators did not award the plaintiffs anything on that account.</p> <p>Same. — Separation of Arbitrators. — Sufficiency of Reply. — It appeared from the allegations of the reply that the three arbitrators considered the evidence, and that two of them found for the plaintiffs, and that one of them drew up an award, which was signed by both of said arbitrators, when they separated; that after the award had been signed and the separation taken place the two who had found for the plaintiffs procured an attorney to draw up another award in favor of the same party, and for the same amount, and without consultation with the other arbitrators signed this award and promulgated it.</p> <p>Held, that the allegations of the reply are not sufficient to show a completion of the work of the arbitrators and a final separation after the first award; that the separation, so far as appears from the allegations, may have been only an adjournment to another time and place, or a mere temporary separation.</p> <p>Pbactioe. — Pleading. — Reply. — Demurrer. — General Denial. — Subsequent Withdrawal of. — A reply which sets up only such facts as are admissible under the general denial already in is demurrable, and the subsequent withdrawal of the general denial will not render the ruling sustaining the demurrer available error.</p>

<p>Indian Lands. — Title m Fee Simple. — Taxation.—Certain lands which by tbe treaty of 1818 between the United States and the Miami nation of Indians were granted or released to the principal chief of the Miami nation in fee simple, in consideration of the cession by the tribe of certain lands to the United States, are not liable for taxation while the ■owners of the same keep up their tribal relations with the Miami nation. The third article of the ordinance of 1787, relating to the lands and property of Indians, is in force in this State. The language of said clause is broad enough to cover the claims of individual Indians and titles held in fee simple acquired by treaty or otherwise from the United States. State, ex rel., v. Board, etc., 63 Ind. 497, distinguished.</p>

<p>Injunction. — Prevention of Erection of Building.— When Action will Lie.— Municipal Ordinance. — Where it is shown that the erection of a building, if permitted, will be in express violation of a valid municipal ordinance, although it would not be a nuisance per $e, an individual who shows such fact, and shows in addition that its erection will work special and irreparable injury to him and his property, is entitled to relief by injunction.</p> <p>Same. — Parties to Action.— Who May be Joined as Plaintiff. — Although the plaintiffs, in such an action, are shown to be the owners of separate and distinct tenements, and thus are not united in interest with each other, yet there is one object of common interest among all of them. They all claim one general right to be relieved from that which they insist is a nuisance, and which alike affects all of them. Their common danger and interest in the relief sought authorize them to join in the action.</p> <p>Municipal Corporation. — Police Powers.— Ordinance. — Protecting Against Fire — Cities in this State possess ample power to enact and enforce reasonable ordinances to secure protection against fire. In the absenee of express statutory authority, the enactment and enforcement of reasonable regulations of this character are recognized as a legitimate exeicise of the police power necessary to the safety of the city. In addition to the power thus possessed, the statutes of this State confer express authority upon cities to establish fire limits, and prevent the erection of wooden buildings in such parts of the city as the common council may determine. The statutory power thus conferred is not a limitation upon the common law power of the city in this particular.</p> <p>Same. — Repairs of Building. — Public Safety. — Removal of Building. — Power of Municipality to Compel. — •Nuisance.—If the owner of a building proposes to make repairs or additions to it of such material or in such manner as to clearly menace the public safety or to greatly endanger adjacent property, the city authorities have ample power to interfere and prevent the making of such repairs or addition. They may also remove, or compel the removal of, wooden buildings erected in violation of a valid ordinance; not necessarily because the buildings thus erected are a nuisance, but because their erection was in violation and defiance of the law.</p> <p>Same. — Deprivation of Power to Make Repairs. — Ordinance.—Invalidity of.— A municipal ordinance is invalid which arbitrarily attempts to take from the owner of a frame or wooden building all power to make repairs necessary for its preservation, or necessary for its enjoyment, regardless of the effect which such repairs may have upon the public, upon adjacent property, or upon the rights of others; and applies with equal force to buildings detached and remote from all others as to those in immediate proximity to others ; and not only to repairs which would tend to create danger, but also to those which would serve to remove or diminish it.</p>

<p>Trust and Trustee. — Cestui que Trust. — Decree.—Where a trustee, who represents the beneficiaries, is in court, the decree rendered binds them in so far as it affects the trust property.</p> <p>Mortgage. — Foreclosure.—Decree, who Bound By. — Trustee and Beneficiaries. — Judgment Creditors. — Partition.— Counter-Claim — At an execution sale the judgment creditors chose of their own members certain ones as trustees. The judgment debtor’s land was purchased by those so chosen, as trustees for themselves and the other creditors, and the sheriff’s certificate was issued to them as trustees. In a suit to foreclose a mortgage executed by the judgment debtor the trustees were made parties.</p> <p>Held, that the decree of foreclosure rendered therein, adjudging the mortgage to be a paramount lien, was binding on the trustees and the other creditors as the beneficiaries of the trust.</p> <p>Held, also, that even if the. judgment creditors were not parties to the foreclosure suit through their chosen trustees, the decree was not a nullity, and the mortgagee had a right, in a subsequent suit, to secure a decree barring their equity of redemption. Such right may be set up as a counter-claim in a suit by all the creditors for partition of the land.</p> <p>Execution. — Sheriff’s Sale. — Judgment Creditor’s Bid. — It is sufficient to make a sheriff’s sale effective, in cases where the judgment creditor is the purchaser, if the amount of the bid is properly credited upon the execution, by his direction and authority.</p> <p>Same. — Holder of Sheriff’s Certificate of Purchase. — Redemption from Mortgage Foreclosure. — The holder of a sheriff’s certificate of sale under execution on a judgment may redeem lands sold on a decree of foreclosure of a mortgage made by the judgment debtor,, the lien of which is prior to that of the j udgment.</p> <p>Same. — Right of Redemption as Judgment Creditor. — Sufficiency of Application to Redeem, How Determined. — Such holder of a sheriff’s certificate is entitled to redeem in the character of a judgment creditor, and not as owner, and hence the sufficiency of the application must be determined by section 772, R. S. 1881, which requires a statement specifying the amount and date of the judgment, and the amount due and unpaid.</p> <p>Constitutional Law. — Obligation of Contract. — Statute Reducing Interest on Redemption from Mortgage. — A statute enacted subsequently to the execution of a mortgage, reducing the rate of interest which the purchaser might receive on his bid in case of redemption from ten per cent, to eight per cent., is not unconstitutional as impairing the obligation of a contract between the mortgagor and the mortgagee.</p> <p>New Trial. — As of Right. — Partition.—Where, in an action for partition, the question of title is directly put in issue and adjudicated, the unsuccessful party is entitled to a new trial as of right.</p> <p>Execution.- — Right of Redemption. — Purchaser Under Execution. — Equitable Title. — Lien-Holder.—The title remains in the judgment debtor, not only until the right of redemption .is lost, but until the power to redeem no longer exists, and the power to redeem ends only when the holder of the certificate demands a deed. The holder of a sheriff’s certificate, who has taken no steps to obtain a deed, is no more than a lien-holder, regardless of the time which has elapsed since the sale. The expiration of the year allowed for redemption enlarges his rights by adding to his lien an equitable interest in the land sold. If he demands a deed, l}e acquires a legal title. Until he procures a deed he can not redeem as owner under section 768, R. S. 1881, but must redeem as a judgment creditor, or lien-holder, under section 772, R. S. 1881. Olds, J., dissents.</p>

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

<p>Mortgage.' — Priority of Lien. — Pre-Existing Debt. — Knowledge of Earlier Mortgage.- — Phidenee—A mortgage was executed to the plaintiff, on the 27th day of June, 1884, to secure a loan then made to the mortgagors, and the mortgage was recorded on the 28th day of January, 1885. The same parties executed a mortgage on the same real estate on the 22d day of November, 1884, to a bank, which latter mortgage was recorded on the 25th day of November, 1884.</p> <p>Held, that if the mortgage to the bank was executed to secure a pre-existing debt, without any extension of the time of payment, as a consideration for the mortgage, the plaintiff’s mortgage would constitute.a prior lien on the property.</p> <p>Held, also, that if the bank, as it was claimed, and as there was some evidence to show, had knowledge of the existence of the plaintiff’s mortgage at fhe time of the execution of its own mortgage, then, notwithstanding the fact that the mortgage to the bank may have been given for value, the plaintiff’s mortgage would have priority.</p> <p>Held, also, that the mortgage to the bank having been excluded when offered in evidence, and this ruling not being brought before the Supreme Court for review, the bank, under the evidence in the case, could not in any event have its mortgage declared a prior lien.</p>

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

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

<p>Deed. — How Construed. — Exception in Favor of Grantee, — Doubtful Language. —Where the language of a deed will admit of two constructions, the one less favorable to the grantor is to be adopted. An exception in a deed is to be taken most favorable for the grantee. If the language of a conveyance is doubtful, it must be construed so as to ascertain, if possible, the intention of the parties.</p> <p>Same.— What Passes Under it. — In a conveyance of property, everything, essential to the enjoyment of the property is to be considered, in the absence of language indicating a different intention on the part of the grantor, as passing with it, either as a parcel thereof or appurtenant thereto.</p> <p>Same. — MIL Property. — Conveyance of.— What it Includes. — Maintenance of Dam. — The conveyance of mill property carries with it, whether the word “ appurtenances ” be used or not, all the incidents and privileges connected with its use, p.nd this includes the right to maintain a dam, so as to produce a head, or power, equal to that which existed at the time the conveyance was executed.</p> <p>Same. — Right to Maintain Dam. — Deprivation of Right. — Compensation for Loss. — The right to maintain a dam at the height it exists at the time of a conveyance of mill property, is of itself property, and a part of the thing sold, and the covenants of the deed extend to and cover the right to maintain the dam at such height, as an incident of the estate and necessary to its enjoyment, and if the grantee is deprived of such right because the grantor had not the right to maintain it at the height covenanted, he is entitled to compensation for such loss.</p> <p>Same. — Right of Flowage. — Reference to Mortgage. — Effect of. — Where a deed purported to convey certain mill property, with all its privileges and appurtenances, and then referred to a certain mortgage in which the right of flowage was greatly restricted, the provision in the mortgage can not be regarded as placing a limitation upon the rights and privileges granted. It would require clear and explicit words of limitation to cut down the express and implied grant of the right of fiowage as it existed at the date of the execution of the conveyance.</p> <p>Same. — Direct Language and Words of Recital. — Repugnance Between. — How Construed. — As between terms directly given as the language of the grantor, and words incorporated by way of recital, from another instrument, in case of repugnance, that which is recited must be rejected, and that which is direct adhered to, as being most likely to express the intention of the parties.</p>

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

<p>Masteb and Sebvant. — Fellow-Servants.—Whether in a given case one is acting as the representative oí the master, or merely as a co-employee with others employed by the same master, depends upon the character of the duties imposed upon him and which he is performing at the time, and not upon his rank or title.</p> <p>Same.— Who are Fellow-Servants. — Where an employee of a railroad company, intrusted with the duty of saving a bridge whose destruction is threatened by a freshet, in pursuance of the authority conferred upon him, calls out the employees from the various departments of the railroad company’s service to unite in saving the bridge, chooses the place where they should work, and directs what appliances they should use, he is not a fellow-servant with those under'liis control.</p> <p>Same —Duty of Master. — The master’s duty to his employees to provide safe places for them to work is a continuing one, and requires him to use ordinary care to keep them safe, and if they become unsafe through his neglect, or are made unsafe through his act, he must answer in damages to a servant who is injured thereby, who is himself free from contributory negligence.</p> <p>Same. — Assumption of Risk of Employment. — Where the master orders a servant to do something which involves encountering a risk not contemplated in his employment, although the risk is equally open to the observation of both, it does not necessarily follow that the servant either assumes the increased risk, or is negligent in obeying the order. If the apparent danger is such that a man of ordinary prudence would not take the risk, the servant acts at his peril; but unless the apparent danger is such as to deter a man of ordinary prudence from encountering it, the servant will not be compelled to abandon the service, or assume all additional risk, but may obey the order, using care in proportion to the risk apparently assumed.</p>

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

<p>Appeal. — Perfection of. — Notice to Go-Parties. — Remedying Defect. — Section 633, R. S. 1881, declares that all appeals must be taken within one year from the time the judgment is rendered. All appeals not taken in accordance with section 638, R. S. 1881, providing for- appeals in term time, require notice to be given. Section 635, R. S. 1881, provides that a part of several co-parties may appeal, but in such cases they must serve notice of the appeal upon all the other co-parties, and file the-proof thereof in the Supreme Court.</p> <p>Meld, that where a part of several co-parties appeal without complying with section 635 or 638, the defect can not be remedied, after the time limited for effecting appeals has expired,by filing in the Supreme Court a written appearance of a party not appealing and his refusal to join in the appeal.</p>

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

<p>Criminal Law. — Filing Information. — Order-Book Entry. — It is not necessary for the clerk to make an order-book entry of the filing of an information, The mere statement of the clerk that an information was filed, as shown by his file-mark on the back of an information, is sufficient prima facie to give jurisdiction.</p> <p>Same. — Dismissal of Appeal. — Insufficient Showing for. — Where it is not made to appear that an entry of such filing was made by the clerk upon the order book, the alleged failure of the clerk to copy into the transcript the order-book entry showing the filing of the affidavit in the court below is not available for a dismissal of the appeal in a criminal case, where the clerk states in the transcript that the affidavit and information were filed.</p> <p>Same. — Embezzlement.—Surviving Partner. — Person Acting in Fiduciary Capacity.— Who is.--A surviving partner, who is engaged under the statute in winding up the partnership affairs, is acting in a “fiduciary capac ity ” within the meaning of section 1952, R. S. 1881, defining the crime of embezzlement by administrators, executors, or other persons acting in a fiduciary capacity.</p> <p>Same. — Assets.— When Deemed in Possession of Surviving Partner by Virtue of Trust. — When a surviving partner has filed the. inventory and bond required, and entered upon the discharge of the duties imposed upon him by law, the assets of the partnership come into his possession by virtue of the trust within the meaning of section 1952.</p> <p>Same. — Sufficiency of Information. — An information for embezzlement under the above section, which charges that the money came into the defendant’s hands as such surviving partner, is good upon motion to quash.</p>

<p>New Teial. — As of Bight. — Foreclosure of Mortgage. — In a suit to foreclose a mortgage, brought by the assignee thereof, where the only question involved is as to the right of such assignee to foreclose the mortgage notwithstanding á release executed by the assignor, the ownership of the land is not in controversy, and the unsuccessful party is not entitled to a new trial as of right.</p> <p>Same. — Special Verdict. — Such a suit is triable by the court, and it is not bound by the facts stated in the special verdict, which is merely advisory.</p>

<p>Grand Jury. — Excusing Juror. — Presumption.—Where, under section 1649, K. S. 1881, authorizing the court to excuse grand jurors from attendance for certain reasons, a grand juror is excused by the court, and the reason for his excuse is not. shown by the record, it will be presumed that he was excused upon some of the grounds prescribed by the statute.</p> <p>Same.— Vacancy. — Selection from By-Standers.— Where grand jurors are excused the vacancy may be filled by a selection from the by-standers.</p> <p>Special Judqe. — Appointment of. — Statute.—Section 4 of the act of March 1st, 1855 (2 Davis Stat. 10), relative to the appointment of special judges, is still in force, except in so far as it is in conflict with the act of March 7th, 1877 (Acts 1877, p. 28), and the appointment of a judge pro tern, by the regular judge, who is unable to preside at a term of court on account of illness, is valid.</p> <p>Cbiminai, Law. — Change of Venue. — Defective Transcript.— Voluntary Appearance of Defendant. — Jurisdiction.—Where the venue of a criminal cause was changed on motion of the defendant, and a transcript was filed in the clerk’s office of the court to which the change of venue was taken, which transcript was defective, but it appeared by the record that after the filing of such defective transcript, the cause was continued by “ consent of parties,”</p> <p>Held, that it will be presumed that the defendant voluntarily appeared, and submitted himself to the jurisdiction of the court, and consented to a continuance; that the court had jurisdiction, the appearance and agreement constituting a waiver of any mere technical informality in the transmission and certification of the papers.</p> <p>Same. — Assault with Intent to Kill. — Instruction.—In a prosecution for assault with intent to kill, it is not error to refuse to charge the jury that, if the evidence showed that the defendant was not interfering with the prosecuting witness, and was seized by him, and in the effort to get away the pistol was discharged, and the prosecuting witness was injured, the defendant should be acquitted.</p> <p>Same. — Instruction— Nor is it error to refuse to charge that “ A saloon is a public place in which all persons that so desire may go, and no one has a right to expel another therefrom by force and violence,” since those in charge of a saloon may lawfully expel therefrom one who is guilty of gross misconduct and in so doing may use such force as is reasonably necessary to accomplish that result.</p>

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

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

<p>Negligence. — Needless Exposure to Banger. — One who needlessly and recklessly exposes himself to open and obvious danger is guilty of' negligence. If he thereby suffers injury he is guilty of such negligence as will preclude a recovery against the persons causing such injury.</p> <p>Master and Servant. — Risks Assumed by Employee. — Hazardous Employment. — A servant assumes all the ordinary and usual risks of the business upon which he enters, so far as these risks are known to him, or could be readily discernible by a person of his age and capacity, in the exercise of ordinary care. This *is true even though the duties of the service may be from their nature necessarily hazardous.</p> <p>Same. — Knowledge of Befeet. — Continuance in Service. — Master’s Promise to Repair. — An employee who voluntarily continues in the master’s service after notice of defects in tools, machinery, or other appliances which augment the danger of his service, thereby assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect.</p> <p>Same. — Character of Risks Assumed by Employee — The risks thus impliedly assumed by the employee are the usual risks fairly incident to his service, whether that service is rendered specially hazardous by the use of defective appliances or not. He does not necessarily assume all the risks incident to the business carried on by the employer, but only such as are connected with, and incidental to, his employment.</p> <p>Same. — Risk not Contemplated in Employment. — Employee Acting under Orders. —To What Extent Protected. — "Where a master orders a servant to do something which involves encountering a risk not contemplated in his employment, although the risk is equally open to the observation of both, it does not necessarily follow that the servant either assumes the increased risk, or is negligent in obeying the order. If the apparent risk is such that a man of ordinary prudence would not take the risk, the servant acts at his peril. But unless the apparent danger is such as to deter a man of ordinary prudence from encountering it, the servant will not be compelled to abandon the service, or assume all additional risk, but may obey the order, using care in proportion to the risk apparently assumed, and if he is injured the master must respond in damages. For risk which plaintiff did not assume by reason of his employment, see opinion.</p> <p>Special Verdict.— What it Should Contain. — Failure to Find upon Material Fact. — Effect of. — A special verdict should contain a finding by the jury upon every material fact in issue necessary to constitute the plaintiff’s cause of action or the defendant’s defence upon which there is evidence. There need be no finding upon immaterial facts, nor upon facts presumed but not within the issues. A failure to find upon any material fact in issue is equivalent to a finding against the party upon whom the burden rests to establish such fact.</p> <p>Same. — Failure to Find upon Material Fact. — Remedy for. — Motion for New Trial. — If the special verdict fails to find material facts, within the issues, which were established by the evidence, the remedy is not by motion to coerce the jury into making such finding, but by a motion for a new trial by the party aggrieved.</p>

<p>County Commissioners. — Establishment of Highway. — Plea in Abatement.— In a proceeding before a board of county commissioners to lay out and establish a public highway, it was not error 'to strike from the files a plea in abatement, in which it was alleged that less than six of the persons signing the petition resided in the immediate neighborhood of the proposed highway. If the party filing the plea possessed the right to appear and contest the jurisdictional fact set up in his plea, he had that right without the filing of any pleading whatever. In such a proceeding the question of jurisdiction can not be made an adversary one. As the plea was improperly filed with the board of commissioners, it was not error for the circuit court to refuse to allow it to be refiled.</p> <p>Amicus Curiíe.— What His Mights are. — Ap amicus enrice may appear, and, with the permission of the court, introduce evidence for his own benefit, but he can not except to any ruling made by the court, as he has no right to complain if the court refuses to accept his suggestion.</p>

<p>Besuuting Trust. — Evidence Establishing. — Quieting Title. — When a resulting trust in land is claimed, and the evidence, while it does not show an express contract between the parties, does show that the relation oí principal and agent existed between them, and that the land was purchased by the agent in the absence of the principal, and with her money, it is sufficient to create a resulting trust under the provisions of section 2976, B. S. 1881, and upon the death of the agent, the trust being terminated thereby, the principal is entitled to have her title to the land quieted.</p>

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

<p>Stbeets. — Opening of. — Appeal to Circuit Court.^Transcript Constitutes Complaint. — Objection.—How Stated. — Recitals in Transcript. — Inconclusiveness of. —In proceedings to open a street under section 3180, R. S. 1881, upon appeal to the circuit court the transcript constitutes the complaint, and the appellant must state specifically in writing the grounds of his objection to the proceedings of the common council and city commissioners, and no other question can be tried or heard, and “ issues of law and of fact may be found, tried and determined as in other actions at law.” Upon such an appeal, an issue of fact may be raised by an objection that the resolution to refer the matter of opening the street to the commissioners was not adopted by a two thirds vote of the common counoil, as required by law. The recitals in the transcript to the contrary are not conclusive.</p> <p>■Same. — City Commissioners. — Referring Back Report to.— What Reference is for. — Assessment of Additional Properly. — Invalidity of. — Under sections 3174 and 3189, E. S. 1881, which provide for the referring back of reports to the city commissioners, the reference is for the purpose of readjusting or changing the assessment, or amending or changing the report by the commissioners as to the persons, or property of the persons, previously notified of the proceedings, and it does not contemplate any action on the part of the commissioners which will affect other persons and property. An assessment of additional property by the commissioners upon such a reference is without any authority of law and void. The statute would be void if it had contemplated the assessment of the lands of other persons upon such a reference, for it makes no provision for the giving of notice to them. It is a statute which provides for the taking of private property for public use, and must be strictly coniStrued.</p>

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

<p>"Vendor and Purchaser. — Notice.—If a purchaser of land have notice of facts making it incumbent upon him to make due inquiry, he is bound by all the knowledge which a reasonable inquiry would have imparted.</p> <p>Same. — Bona Fide Purchaser.— Who is not. — One who purchases with full knowledge of prior equitable or legal rights is not a purchaser in good faith.</p> <p>■Same —Notice Before Payment of Purchase-Money. — Notice before payment of the purchase-money prevents the acquisition of the character of a bona fide purchaser.</p> <p>Same. — Description of Land. — Correction of Mistakes. — Mistakes in the description of land may always be corrected against a party who buys with full knowledge of another’s prior purchase of land from the same grantor.</p> <p>Pleading. — Deed.—Exhibit.—Deeds or other instruments forming evidence of title are not the foundation of pleadings asserting title, and if made exhibits they will be disregarded.</p>

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

<p>Pleading. — Supplemental Complaint. — Demurrer.—A motion to strike out*a supplemental complaint may properly be overruled.</p> <p>Same. — Demurrer.—Sustaining a demurrer defective in form to a pleading which is wholly insufficient is not available error.</p> <p>■Cokpobation. — Misappropriation of Corporate Funds by Officers. — Action by Stockholder for Receiver. — Pleading.—Where a majority of the directors of a corporation are charged with a misappropriation and conversion of the assets of the corporation, a complaint by a stockholder for an accounting and the appointment of a receiver need not allege that before the commencement of the action a demand was made upon the directors to bring suit in the name of the corporation.</p> <p>Same. — Conversion.—Interest.-—Where the secretary and treasurer of a corporation fraudulently appropriates to his own use, under the guise of salary, large sums of money belonging to the corporation, he is liable for interest on the amount so appropriated.</p> <p>Same. — -Turnpike Company. — Refusal of Officers to Make Repairs. — Appointment of Receiver. — Where the owners of the majority of the corporate stock of a turnpike company neglect and refuse to make needed repairs in the roadway, thus rendering the property non-productive, the court may properly appoint a receiver.</p> <p>Same. — Sale of Property. — Decree.—Where a suit brought by a stockholder against a corporation and its officers merely seeks an accounting and the appointment of a receiver, a decree ordering a sale of the property is erroneous.</p> <p>Courts. — Continuance Beyond Term. — The adjournment of the trial of a cause which is in progress the last day of a term to a subsequent day, when the trial is again resumed, is not an adjourned term, but is a continuation of the existing term under the provisions of section 284, Elliott’s Supp., and no notice is necessary.</p>

<p>Deed. — Reformation.—A court of equity will reform a written instrument, not only in oases of mutual mistake, but also when, by the fraud of one of the parties to the instrument, the language inserted in it is materially different from that agreed on.</p> <p>Same. — Fraudulent Omission. — Fraud of Husband.— Wife’s Excuse for not Having Deed Read.- — Where a husband, after deserting his wife, proposed to. her to join him in conveying a tract of land to their children, reserving, to her the rents and profits during her life, and the wife, who was unable to read, in good faith joined in the execution of the deed, but the husband procured the deed to be so written that it would convey the fee to the children without the reservation of rents and profits agreed upon, which deed was signed by the wife upon the representation of the husband that it was prepared in accordance with the agreement,</p> <p>Held, that the wife had a right to rely upon the husband’s sincerity, and that a sufficient excuse for her not having the deed read is shown.</p> <p>Same. — Laches.—In a suit by the wife for a reformation of such deed, the-fraud was admitted and the answer alleged that the suit was not instituted until nine years afer the fraud was discovered; that the wife surrendered her possession of the land at the request of the childrens’ guardian; that the guardian rented the land, and expended part of the rents in the improvement of the land and part in compensating the wife for the maintenance of the children; that the guardian, to make the improvements and provide for the maintenance of the children, had anticipated rents and profits for several years in advance.</p> <p>Held, that the delay of nine years in bringing'the suit was not such laches as made the wife’s equity stale and barred relief.</p> <p>Same. — Husband and Wife. — Separation —Judgment for Alimony no Bar to Action for Reformation. — A judgment for alimony recovered by the wife in a suit for divorce after the execution of the deed is no bar to the action for its reformation, as there is no question of property rights between the husband and wife.</p> <p>Practice. — Equity.—Submission to Jury of Questions of Fact. — Objection to Manner of Submission. — Interrogatories amd Instructions. — Where, in a suit in equity, the court submits questions of fact to the jury, it is not bound by their verdict, which is merely advisory, and may disregard their findings. The parties can not complain of the manner in which the questions of fact are submitted to the jury, or object to the form of the interrogatories or instructions.</p>

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

<p>County. — Liability of for Failure of County Commissioners to Keep Jail m Healthy Condition. — A county is not liable for the illness o£ a prisoner confined in its jail, caused by the failure of the county commissioners to keep the jail in a healthy condition.</p>

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

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

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

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

<p>Preading. — Complaint.—Motion to Reject. — Where a complaint is sufficient to withstand a demurrer it is not error to overrule a motion to reject parts of the complaint. „</p> <p>Same. — Motion to Strike Out.— When Properly Overruled. — A motion to strike out a paragraph of pleading admits the truth of all the facts well pleaded for the purpose of the motion, and it should not be sustained if the facts stated in the paragraph are relevant or pertinent to the question to which they are addressed, though not sufficient to withstand a demurrer.</p> <p>Marriage Contract. — Action for Breach. — Answer.—Rescission of Contract. —Must be Specially Pleaded. — In an action to recover damages for an alleged breach of a marriage contract, the rescission of the contract is a proper defence to be pleaded to the action. It is error for the court to strike out a paragraph of answer alleging such a defence. The defence has to be specially pleaded, and is not admissible under the general denial.</p> <p>Same. — Incurable Disease of Defendant. — Mitigation of Damages. — In such an action it is competent for the defendant to prove in mitigation of damages that at the timé of the breach he was afflicted with an incurable disease, and that marriage would' have an injurious effect upon him, and probably shorten his life.</p>

<p>Vendor and Purchaser. — Bona Fide Purchaser. — Notice.—Notice, either actual or constructive, before the payment of the purchase-money, prevents the acquisition of the character of a bona fide purchaser.</p> <p>Same. — Constructive Notice. — One who has notice of such facts as would put a. reasonably prudent man upon inquiry is charged with the knowledge that an inquiry, reasonably prosecuted, would impart.</p> <p>Same.— Vendor’s Lien. — Bona Fide Purchaser. — An administrator’s deed contained nothing showing that the purchase-money was not fully paid. The proceedings prior to the order of sale showed merely that for part of the purchase-money notes were executed. The order of sale required the administrator to take freehold sureties, and his report of the sale indicated that he did take such sureties, though he did not in fact do so. The defendants purchased the land from the grantees of the administrator after the purchase-money notes became due. The administrator brought an action to enforce a vendor’s lien on the land in their hands.</p> <p>Held, that the defendants were not chargeable with notice of such a lien, and that it could not be enforced.</p>

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

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

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

<p>Porcible Entry and Detainer. — Appeal.— When Lies. — Justice of the Peace. — Title to Land. — Jurisdiction.—How Ousted. — An action was instituted before a justice of the peace for the forcible entry and detainer of land. The judgment in the circuit court, to which the case was carried by appeal, was in favor of the plaintiff for fifteen dollars.</p> <p>Held, that, in such action, the title to the land is not involved, and the appeal from the circuit court, if any right of appeal existed, was to the Appellate and not to the Supreme Court.</p> <p>Held, also, where jurisdiction of the justice is asserted to be ousted be* cause title is in issue, it must so appear from the record.</p>

<p>Married Women. — Deed.—Wife not Joining. — Foreclosure Sale. — Inchoate Interest of Wife.— When Becomes Perfect. — Quieting Pities — Practice.—A husband and wife joined in the execution of a mortgage on the husband’s real estate. The husband afterward conveyed the mortgaged premises by deed, the wife not joining. After the latter conveyance was made the mortgage was foreclosed, the owner of the land and the-wife being made parties defendant to the foreclosure proceeding.</p> <p>Held, that it was proper for the court, upon the suggestion of the wife,, without any cross-complaint being filed, to direct the sheriff to first, offer the undivided two-thirds of the land for sale.</p> <p>Held, also, that the sale of two-thirds of the land being sufficient to discharge the mortgage indebtedness, the inchoate interest of the wife in an undivided one-third became perfect upon the sale by the sheriff and the execution of a deed pursuant to such sale, and that she might have her title quieted.</p>

<p>'Contract. — Breach of.— Measure of Damages.— Injunction. — Where the parties to a contract have agreed upon the damages which may be recovered for a breach thereof, the remedy is for the recovery of the sum thus fixed, and injunction will not lie. The sum fixed by the parties themselves in their contract will, in the absence of fraud, be deemed to be adequate, and the proper measure of damages by the court.</p> <p>¡Same. — Restraint of Trade. — Stipulated Penalty.— When Same Can be Recovered. — Where a physician, upon selling out his business, agreed “ to practice medicine no more ” after a certain date in the town where he had been following his profession, and the contract further provided that a stipulated penalty should be paid if the agreement was broken, the penalty is recoverable in an action based upon the breach of the agreement. For construction of the peculiar phraseology of the contract, see opinion.</p>

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

<p>Pleading. — Misjoinder of Parties. — Demurrer.—In an action by a wife for damages for the destruction of her property caused by the negligence of the defendant, where the name of the husband appears in the caption of the complaint as plaintiff, but is not mentioned in the body of the complaint,' and no attempt is made to state a joint cause of action, the name of the husband in the caption will be regarded as surplusage, and the complaint is not bad on demurrer for failure to present a good cause of action in favor of both plaintiffs.</p> <p>Same. — Negligence.—A complaint which charges negligence in general terms is good on demurrer.</p> <p>Negligence. — Natural Gas Company. — Escape of Gas from Mains. — Duty to Public. — A natural gas company which has its mains and pipes laid in the streets of a town owes a duty to the citizens and property-owners to use reasonable and ordinary care in so planting its pipes and mains as to prevent the escape of gas therefrom in such quantities as to become dangerous to life and property.</p>

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

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

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

<p>Churches. — Deed of Trust. — Propagation of Certain Doctrines. — Diversion of Trust. — Where property has been dedicated by way of trust to support and propagate any definite doctrines or principles, and is being diverted from the usé intended by the donor, by teaching a doctrine different from that contemplated at the time the donation was made, it is the duty of the court to make such orders in the premises as will secure a faithful execution of the trust confided. But, to induce a court of equity to interfere, the case must present a plain and palpable abuse of trust.</p> <p>Same. — Ecclesiastical Decisions. — How Regarded by Civil Tribunals. — Where a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the right and nothing more, taking the ecclesiastical decisions out of which the civil right arises as it finds them, and accepts such decisions as matter adjudicated by another legally constituted jurisdiction.</p> <p>Same. — Manner of Determining Right of Property of Organization. — Amendment of Church Constitution. — Powers of General Conference. — Property was deeded to persons named in the deed as trustees, and to their successors in office, in trust, for the Church of the United Brethren in Christ; to have and to hold “ as long as said society may continue to use the meeting-house as a house of religious worship, for the use of the members of the society of such church in the United States according to the rules and discipline which from time to time may be agreed upon and adopted by the church at their general conference, and in further trust and confidence that they shall at all times forever thereafter permit such ministers and preachers belonging to such church as shall from time to time be duly authorized by the said general conference to preach and expound God’s holy word therein.”</p> <p>Held, that, under the constitution of said church, the general conference has power to determine what is the constitution under which it acts, and to determine what is the confession of faith of the church which it represents.</p> <p>Held, also, that the amended constitution, etc., of said church was properly adopted by its membership, two-thirds of the members voting on the question voting in favor thereof.</p> <p>Held, also, that when the general conference resolved that a revised confession of faith and amended constitution had become the fundamental belief and organic law of said church (two-thirds of the members of the church voting, having voted in favor thereof), and that it would be in. force after a certain date, the same was in force after that date.</p> <p>Held, also, that those who adhered to the amended constitution and revised confession of faith constitute said church, while those who refuse to do so, must be regarded as seceders, the revised confession of faith not being unscriptural or antagonistic to the doctrines, etc., of the church which existed at the time of the execution of the deed to the land in controversy.</p> <p>■Same. — Amendment of Constitution-. — Proportion of Votes Necessary. — Where a two-thirds vote was required to amend the constitution of said church, it is not necessary that two-thirds of the entire membership of the church should vote in favor of so amending, but simply that two-thirds of those actually voting, should vote in favor thereof.</p>

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

<p>Criminal Law. — Former Acquittal Procured by Fraud. — Subsequent Prosecution. — Collateral Attach. — “Where a prosecution is regularly commenced by the prosecuting attorney, and the State is represented throughout by him, but pending the prosecution the prosecuting attorney is bribed to procure an acquittal, the judgment of acquittal thus procured is not void because of the fraud, but only voidable, and can not be collaterally attacked by the State.</p>

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

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

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

<p>Easement. — Prescription.— Use for More than Twenty Years. — Where, by agreement, a right of way is established by mistake over the land of another, and its use is continued for more than twenty years, a title is acquired which is appurtenant to and passes with the land.</p> <p>Same. — Effect of Subsequent Survey. — No survey after twenty years can change the rights of the parties, or entitle the one over fyhose land such right of way has been established to interfere with its free use.</p>

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

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

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

<p>Practice. — Appeal to Supreme Court. — Sufficiency oj Complaint, How Tested. —Where the sufficiency of a complaint is questioned for the first time by an assignment of error in the Supreme Court, such assignment must be predicated upon the complaint as an entirety, and not upon the separate paragraphs thereof.</p> <p>County Commissioners. — Action Against. — A suit can not be maintained against a board of county commissioners until it has been given an opportunity to act.</p> <p>Same. — Refusal to Act. — Right of Action Against. — While no action will lie against the board of county commissioners until an opportunity is given it to act, still, after-a refusal to act an action maybe maintained against it.</p> <p>Same. — Comity Treasurer. — Suit by to Recover for Erroneous Payments. — Section 6510, R. S. 1881, Construed. — -Section 6510 relates to county revenue only. In an action against a board of commissioners to collect money ' erroneously paid into the county treasury it was held error to render judgment against the county for any other funds except such as went into the county treasury as county revenue. The county can not be held liable for money erroneously paid in for the use of the State, township or corporations.</p> <p>Jurisdiction. — Circuit Court. — Complaint Need not Show. — As the circuit court is a court of general jurisdiction, its authority to proceed in a cause need not affirmatively appear by the complaint.</p>

<p>Pleading. — Complaint.—Exhibits.—It is only proper to make an instrument an exhibit when it is the foundation of an action. Any other exhibit will be disregarded.</p> <p>Principal and Surety. — Creditor’s Inaction.— When Surety not Released.— A creditor does not lose his right to hold the surety by inaction or passiveness except in cases where the surety has taken such steps as compel the creditor to proceed or lose his claim.</p> <p>Same. — Release of Surety. — Notice to Creditor to Proceed. — A surety is not released by the failure of the creditor to proceed against the principal until the surety has complied with the statutory provision by notifying, the creditor to proceed against the principal. The surety can only obtain his release by following the provisions of the statute in his behalf.</p> <p>Sam:e. — Institution of Suit. — Notice.—A suit, no matter what its character,, can not operate as a notice so as to release a surety.</p>

<p>Mortgage. — Foreclosure.—Sheriff’s Sale. — Offer of Rents and Profits. — In a foreclosure proceeding, it is not necessary for the sheriff to offer the rents and profits of all the tracts together before offering to sell the fee.</p> <p>Same. — Rule of Property. — The case of Adler v. Sewell, 29 Ind. 598, has become a rule of property, and where a sheriff's sale has been made in accordance with the rulings in that case it will not be disturbed.</p> <p>Same. — Sheriff’s Deed. — Sufficiency of. — A sheriff’s deed giving the names of the mortgagors and owners of the land sold, and such a description of the judgment and decree that there can be no mistake in its identification as the one authorizing the sale of the premises, is sufficient.</p>

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

<p>Fraudulent Conveyance. — Action to Set Aside. — No Other Property. — Defective Finding. — In a suit by a creditor to set aside a conveyance of property on the ground that it was made to defraud creditors, where the special finding fails to show that the grantor had no property other than the land out of which the debt sued for might have been made, either at the time of the conveyance, or from that time up to the time suit was brought, the defendant is entitled to judgment.</p> <p>Special Finding. — Amendment of After Verdict. — After the rendition of judgment the court can not amend and supply defects in a special finding on motion of one of the parties.</p>

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

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

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

<p>Criminal Law. — Manslaughter.—Self-Defence.—On the trial of an indictment for manslaughter, the defendant testified that when he shot the de-■ cedent the decedent was about seven steps away from him, had thrown at him his weapon, an ax, and was turning away from him.</p> <p>JHeld, that a claim of self-defence was not tenable, and that a verdict of guilty was sustained by the evidence.</p> <p>New Trial. — Newly-Discovered Evidence. — A new trial will not be granted because of newly-discovered evidence which is merely cumulative; nor will a new trial be granted on account of newly-discovered evidence when the sole purpose of such evidence is impeachment; and the fact that the party was surprised by the testimony of the witness proposed to be impeached of contradicted will not change the rule.</p>

<p>Elections. — Tie Vole. — Determination of by Lot. — Cases Followed. — Election boards maybe compelled, by mandate, to reassemble and determine by lot which of the rival candidates for a township office, who have received an equal number of votes, shall be entitled to the office. Following Johnston v. State, ex rel., 128 Ind. 16, and Wills v. State, ex rel., 128 Ind. 359.</p> <p>Same. — Illegal Votes. — The election officers, having counted the votes given for each of the candidates, and certified that the vote was a tie vote, can not be heard, in a proceeding brought to compel them to complete their official duties, to contradict such return, by alleging that illegal votes were received, and that, in fact, there was not a tie.</p> <p>Same. — If illegal votes were, in fact, received and counted for either, or both, the candidates, that must be determined by a contest of election, or other appropriate method, after one or the other of the rival candidates shall have received his certificate of election.</p> <p>Same. — Flection Board. — Mandate to. — Time of Meeting. — It is proper for the court, in its mandate, to fix a particular time when the board shall reassemble and proceed to cast lots.</p> <p>Same. — Removal of Member, — Appointment of Successor. — Where, pending the mandate proceedings, one of the judges of election moves from the State, it is proper for the court to direct the inspector of elections to select one elector of the township of the same political faith of the judge moving away to act in his place, and that they should then proceed to cast lots to determine who should be entitled to the office.</p>

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

<p>Corporation. — Lien.— Wages of Employees. — Insolvent Corporation. — Transfer of Property.— Whatis “ Property." — To What Properly Lien First Attaches.— Notice. — A corporation went into the hands of a receiver on the 19th of May, 1888. It had been hopelessly insolvent for more than thirty days prior to that time- On the 5th of May the corporation entered into a written contract for the purchase of a large quantity of scrap-iron, to be delivered within thirty days after the date of the contract. On the day before the appointment of the receiver the corporation sold and assigned said contract to the appellant. The iron was delivered to the appellant and sold by him.</p> <p>Held, that the contract for the delivery of the iron was “ property ” within the meaning of section 1285, R. S. 1881, and that the employees of the insolvent corporation, having fully complied with the statutory requirements (sections 5286 and 5287, R. S. 1881), acquired a lien thereon for their unpaid wages.</p> <p>Held, also, that the corporation could not avoid the lien given by statute by transferring its property before the notice of the intention to hold a lien was filed in the recorder’s office.</p> <p>Held, also,i that those dealing with insolvent corporations must take notice that the wages of employees are a lien upon their property, and that the title acquired by purchase or otherwise from such a corporation is subject to such lien.</p> <p>Held, also, that the contract for the delivery of the scrap-iron being the last property transferred by the insolvent corporation, the same was subject to the payment of the liens held by the employees before resort could be had to property transferred at an earlier date.</p>