Volume 130 — Indiana Reports

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

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

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

<p>Way.— Use by Strangers. — Diversion of Use. — The grant of the right to transport stone from a designated tract of land over a certain tract owned hy the grantor, can not be used with the permission of the grantee by a third person for the purpose of carrying stone quarried in another tract of land.</p> <p>Pleading. — Allegations of Ownership. — Sufficiency as to. — See opinion.</p>

<p>New Trial. — Newly-Discovered Evidence. — Affidavit of Witness Musi be Pro-dueed. — Defendant in Custody no Excuse. — On a motion for a new trial because of newly-discovered evidence, the affidavit of the witness who will testify as alleged must.be produced, and it is no excuse that the party moving for the new trial is in custody.</p> <p>Judgment. — Arrest of. — The fact that the number on the indictment and the number of the cause are different is not sufficient to authorize the arrest of the judgment, if the record show that all the proceedings subsequent to the return made by the grand jury were had on the indictment thus returned.</p>

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

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

<p>Equity. — Injunction.—Inadequate Remedy. — If there is' an inadequate remedy at law, equity will assume jurisdiction.</p> <p>Action. — The lapse of time between the bringing of a suit and the rendition of a decision therein can not defeat the plaintiff, if he has not been guilty of laches in the prosecution of the cause of action.</p> <p>Judgment. — Lien.—Right to Maintain Action to Assert Superiority of.-— The owner of a judgment which is a lien upon real estate may bring an action to have his lien declared prior to and free from a claim asserted to be superior to it.</p> <p>Same. — Lien.—How Given. — Extending.—The lien of a judgment is given by statute, and can not be prolonged by the court beyond the time fixed by the statute.</p> <p>Same. — Action to Enforce Lien of. — Expiration of Lien Pending Suit, Effect. —Costs.—A judgment lien can not be enforced against an inferior lien after the former has expired, although the action for that purpose was brought on such judgment before it expired, such lien having expired during the pendency of the suit. In such an instance the plaintiff is entitled to recover costs up to the time of the decision of the court.</p> <p>Pbactice. — Supreme Court. — Reversal.— When will Hired Lower Court to Enter Judgment. — Where the facts are not in dispute, all the material matters appearing upon the face of the record, and such record enables the appellate court to ascertain and declare the justice of the cause, that court will direct the lower court what judgment to enter, and not remand the cause for a new trial.</p>

<p>Assignment tor Benefit os’ Creditors. — Preferring Creditor, Can Not be Pone in Peed of Assignment. — A debtor in failing circumstances may prefer certain of his creditors to the exclusion of his other creditors; but such preferences can not be made as a part of the general assignment under the statute for the benefit of all his creditors.</p> <p>Same. — Preference.—Knowledge of Insolvency. — Preference After Beginning Preparation for Assignment. — A debtor, with a knowledge of his insolvency, and in contemplation of a general assignment, may preface such an assignment by executing to any of his creditors a mortgage upon his property to secure their claim; but where he has entered upon the performance of any formalities necessary to make an assignment under the statute for the benefit of all his creditors, he can not thereafter make any valid preference if he perseveres in and completes the assignment thus begun.</p> <p>Mortgage. — Execution Includes Pelivery and Acceptance. — The execution of a mortgage includes its delivery to and acceptance by the mortgagee.</p> <p>Same. — .Recording as Evidence of Execution. — The record of a mortgage is prima facie evidence of its prior execution, but it is not conclusive, and it may be shown that, although recorded on a certain date, it was not delivered until afterward.</p>

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

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

<p>Judgment. — Judgment Filed in Other County. — Duration of Lien. — The lien of a judgment of a circuit court, filed in a eounty other than the one in which it was rendered, expires at the same time the lien expires in the county in which such judgment was rendered.</p>

<p>Pbactice. — Evidence.—Objection to, Particularity of . — Objections to evidence, to be available, must he reasonably specific; and it is not enough to state that it is “incompetent,” “ immaterial,” or “improper.”</p> <p>Evidence. — Proof of Value of Land. — Opinion by Witness Unacquainted with Value ofLandin that Vicinity. — A witness, after stating the location of land and his knowledge of it, may give his opinion of its value, based upon such facts, without it being shown that he knew anything about the market value of lands in that vicinity.</p> <p>Same. — Proof of Value both Before and After Construction of Railroad. — In proving the value of land affected by the construction of a railroad, proof of its value, both before and after the construction of such road, may be made.</p>

<p>Chattel Mortgage. — Partnership Property. — Execution of by One Partner.— One partner may execute a valid chattel mortgage of partnership goods, to secure a partnership debt, by signing the firm name.</p> <p>Same. — Purchase Without Notice Within Ten Pays After Execution and Before JBecording. — A chattel mortgage recorded in the proper county within ten days after its execution is a valid lien on the property mortgaged as against a person who purchased it before such mortgage is recorded and without notice thereof.</p>

<p>Criminal Law. — Failure of Proof.— Unnecessary Averment. — A mere failure to prove, with technical exactness, an averment which was not necessary, nor of the essence of the offence charged, will not be sufficient to authorize a reversal of the case on appeal.</p> <p>Practice.— Variance.- — When Objection Must be Eaised. — A party desiring to take advantage of a variance between the pleadings and proof must make his objection at the proper time during the trial, and, if he does not do so, he can not afterwards avail himself of such variance.</p> <p>Witnesses. — Separation.— Witness Disobeying Order. — Party not at Fault.— Where a party is without fault, and a witness disobeys an order directing a separation of the witnesses, such party can not be denied the right of having the witness testify, but the conduct of the witness may be shown to the jury upon the question of his credibility.</p>

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

<p><Juo Warranto. — Information.—Relator’s Interest Must be Shown. — In an action to dissolve a corporation, brought by an individual, the information must disclose the relator’s interest in the subject-matter of the action; and merely alleging “ that the relator claims an interest in the corporation and franchise which is the subject of this information,” is not sufficient.</p>

<p>Change op Venue. — Number of Changes.. — A party is entitled to only one change of venue from the county.</p> <p>Same. — Failure to Pay Costs. — Payment by Opposite Party. — If the party asking the change of venue fails to pay the costs, the opposite party may do so and cause the change to be perfected, unless the conduct of the party asking it shows that he had waived the change; but a mere failure to perfect.it does not show such a waiver.</p> <p>Same. — A party can not prevent the court’s sending a cause to a particular county by showing in his affidavit for a change that the same causes are operating against him in such county as exist in the county where the suit was brought; such a statement is for the information of the court, serving to aid it in the exercise of its discretion.</p> <p>Life Insubance. — Suicide.—Forfeiturefor.—Accidental Death. — A condition in a policy of life insurance that it shall be void if the insured shall die by his own hand has no application where the insured kills himself by accident.</p> <p>Same — Suicide.—Insanity.—Such a condition does not apply if the insured takes his life while of unsound mind, if his mind is so impaired by disease that he does not comprehend the moral character of his act, though he may have sufficient mental capacity to know the physical consequences of the deed.</p> <p>Same. — Compromise Procured by Fraud. — Where a party has been induced by fraud to settle a claim on an insurance policy, and has surrendered the policy on the payment of the amount of the compromise; he may rescind such compromise and sue for the remainder due on the policy.</p>

<p>PRACTICE. — Assignment of Error. — Assigning that the court erred in “ overruling the appellant’s answer in abatement” presents no question on appeal.</p> <p>Criminal Law. — Dismissal.— When May be Made. — Before jeopardy attaches a prosecution may he dismissed, although an indictment has been preferred.</p> <p>Same. — Information.— When Prosecution May be by. — After a nolle prosequi is entered and a prosecution ended, thfe accused may be prosecuted by information if the grand jury has been discharged and the court is in session. *</p> <p>Same. — -Conspiracy.—Proof of. — Co-Conspirators.—A conspiracy can not be proved by the declarations of the alleged conspirator as against his co-conspirator.</p> <p>Same. — Deelarations of Receiver as Against Thief. — The declarations of a receiver of stolen goods are not admissible against the thief, unless it is first shown that a conspiracy existed between the former and the latter.</p> <p>Same. — Admission of Receiver. — If there be evidence showing a conspiracy, the admissions of the receiver made before the crime is committed is competent as against the thief; otherwise it is not.</p>

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

<p>Bailroad. — Levy of Execution on Locomotive. — Injunction.—An executive officer may levy upon- and sell a locomotive upon an execution he holds against the railway company, and such company can not enjoin the sale.</p>

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

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

<p>Highway. — Collateral Attach on Proceedings. — Presumption.—In a collateral attack on a highway proceeding, the presumption is that such proceeding is not void.</p> <p>Same. — Notice of Establishment. — The establishment of a highway without notice to the land-owner affected, his agent or occupant, is void.</p> <p>Same. — Injunction.—A complaint to enjoin the opening of a highway through the plaintiff’s land for want of notice must contain an averment that neither he nor his agent nor the occupant thereof had such notice.</p> <p>County COMMISSIONERS. — Presumption as to Jurisdiction. — The presumption is in favor of the jurisdiction of the commissioners’ court, and the regularity of their proceedings, where a collateral attack is made upon the same.</p>

<p>PARTITION. — Building Erected TJnder Agreement that One Person Should Own the Upper and Another the Lower Stoi-y. — There can he no partition of a building as between the parties where it is built under an agreement to the effect that the first story and the ground should be owned by one of them and the second story by the other, with a right of egress and ingress overmuch ground for the owner of the upper story.</p>

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

<p>Boundaries. — Settlement of by Agreement After Survey Made. — Evidence of on Appeal. — If the parties affected, after a survey is made, and during the time they have the right to appeal therefrom, mutually agree on a line between their properties, and yield possession of land to which they claim title to each other, and set posts and move their fence to the agreed line, they thereafter are estopped to deny that the agreed line was the boundary line; and on appeal from such survey such agreement may be given in evidence as a complete defence.</p> <p>Practice. — Irrelevant Gross-Examination Showing Defence without Objection.— Witness Recalled and Objection Interposed for First Time. — If a plaintiff permits, without objection, a defendant to go into his defence on cross-examination of the former’s witness, he can not thereafter object when such witness is recalled and additional questions relating to such de-fence are propounded to him. It is then too late to object.</p>

<p>Advancement. — Will.—Equal Distribution. — Interest.— Unduly Advanced Distributee. — Refunding.—"Where a will shows that it was the intention of the testator to make an equal distribution of his estate, and some of the distributees have received more than the others, the latter are entitled to a sum sufficient to put them on an equal footing with the former, with interest thereon, in addition, from the date of the testator’s death until payment made, if there are sufficient assets for that purpose left after the payment of the debts of the deceased and the costs of administration ; but the distributees who have received greater amounts than their co-distributees can not be made to refund in order to bring about such equalization.</p>

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

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

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

<p>Jurisdiction. — Injury to Land Lying in Another State. — Defendant Having Railroad Running Through this and such Other State. — An action can not be maintained in this State for an injury to land lying-in another State caused by a railway company having a line of railroad running through this and such other State.</p> <p>Same. — Trespass to Real Estate. — Action Local. — An action of trespass for an injury to real estate must he brought in the county where the real estate is situated.</p>

<p>Practice. — Technicalities.—Disregarding.—Informalities.—Slight informalities, or failures to comply strictly with the rules of practice, in matters where such informalities or omissions will not work injustice or impose any hardship on the opposite party, should be disregarded when a substantial controversy existing between the parties is so presented that the court can apply the law and adjust their rights.</p> <p>Interrogatories to Jury.— When Control General Verdict. — A general verdict can be overturned by the special findings of the jury only when such verdict and findings can not be reconciled with each other under any supposable State of facts provable under the issues.</p> <p>Same. — Presumption in Favor of General Verdict. — The court will not presume anything in aid of the special findings of a jury, but will make every reasonable presumption in favor of the general verdict.</p> <p>Same. — Motion.—Sufficiency of. — Motion as follows: “ The defendant files motion for judgment on answers to interrogatories notwithstanding the general verdict for plaintiff.”</p> <p>Held, sufficient, though deemed very informal.</p> <p>Negligence.— Wife Injured at Railroad Grossing when Riding with Her Husband. — Imputing His Negligence to Her. — A wife injured at a railroad crossing by the negligence of the railway company, while travelling with her husband who is driving his wagon in which she is riding, is not prevented from recovering her damages from such company by reason of the fact that he was guilty of negligence in approaching such crossing. His negligence in such an instance is not imputed to her.</p>

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

<p>Police Power. — Delegation to Municipalities.— How Made. — The police power primarily inheres in the State ; but the Legislature may delegate, at least a part of it, to municipal corporations, either in express tends' or by implication arising from the fact of the creation of such corporations.</p> <p>Municipal Corporations. — Enumeration of Powers in General Statute. — Effect. — The enumeration in the general statute for the incorporation of cities, of certain powers which would belong to the corporation without such specific enumeration is merely a declaration of a pre-existing power, or of a power which is inherent in the nature of a municipal corporation, and which is essential to enable it to accomplish the end for which' it is created. Such enumeration of powers, although it include a portion of those usually implied, does not necessarily operate as a limitation of corporate powers by excluding those not enumerated.</p> <p>Same. — Health and Safety of Inhabitants. — Right to Guard. — By the act authorizing or incorporating a municipal corporation, the Legislature expressly delegates to the municipality the power to preserve the health and safety of its inhabitants.</p> <p>Same. — Lighting Street. — Implied Power. — The power to light the streets and public places of a municipality is one of its implied and inherent powers, necessary to properly protect the lives and property of its inhabitants, and as a check on immorality. No statute is necessary to give it this power.</p> <p>Same. — Discretion.—Not Controlled by Courts. — The discretion of municipal corporations, within the sphere of their powers, is not subject to judicial control, except in case of fraud or where the discretion has been grossly abused to the oppression of the inhabitants.</p> <p>Same. — Power to Light. — Implied Povier to Select Means. — The power to light a city carries with it incidentally the further power to procure or furnish whatever is necessary for the production and dissemination of the light.</p> <p>Same. — Light.—Furnishing to Private Consumers. — A city has the power to establish works for lighting its streets, and may, in connection there- ■ with, furnish private consumers such light by contract.</p> <p>Same. — Resolution.—Ordinance.— When May Use Either One. — Where a city has power to act in a given instance, and its charter or the general law does not prescribe the manner of its action, it may accomplish its purpose either by a resolution or by an ordinance.</p> <p>Judicial Notice. — Electricity.—The courts take judicial notice of electricity and of its properties, but not of the several methods of generating, transmitting or using it.</p>

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

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

<p>Peactice. — Damages.—Omission to Aver. — Defect Cured by Verdict. — The omission of an averment of the amount of damages sustained is cured by the verdict.</p> <p>Same. — Damages.—Failure of Proof. — Injunction.—If there is no proof of damages, the court can only award nominal damages, even though the plaintiff be entitled to an injunction.</p> <p>Injunction.- — Mandatory.— When May Issue. — If there be an unlawful invasion of the plaintiff’s rights, irreparable and continuing in its nature, the court may issue a mandatory injunction on final hearing, and it may do so in extreme oases in the first instance.</p> <p>Same. — Apartment House. — Sale of Part. — Removal of Water-Pipe in Joint Service. — If the owner of a double apartment house, which is served by a single water pipe for domestic purposes in both parts of the house, sell or lease one-half of the house, such water-pipe being appurtenant thereto and essential to the enjoyment of the half sold, he may be restrained from afterwards removing such pipe, and be compelled to restore it.</p>

<p>Interrogatories. — Presumption of Submission to Jury. — If the record shows a request for answers to interrogatories in case a general verdict be returned, and a general verdict and interrogatories with answers be returned, it will be presumed that the court submitted such interrogatories to the jury.</p> <p>Special Findings. — Irreconcilability.—Sufficiency to Overturn General Verdict. — To overthrow the general verdict the special findings must be irreconcilably in conflict with it upon any reasonable hypothesis.</p> <p>Same. — Reconcilable with General Verdict Under any State of Facts. — Evidence. —A general verdict is not controlled by the special findings if such findings are reconcilable with each other under any supposable state of facts provable under the issues, without reference to the evidence.</p> <p>Same. — Presumption in Aid of. — The court will not presume any thing in aid of the special findings, but will make every reasonable presumption in favor of the general verdict.</p> <p>Same.— When will Prevail. — If the special findings can not be reconciled with the general verdict, the former must prevail.</p> <p>Negligence.— When Question for Court.— When for Jury. — Where the facts in an action for negligence are undisputed, and the inferences which may be drawn from them are unequivocal, and can lead to only one conclusion, the court will adjudge as a matter of law that there was, or was not, negligence; but if the facts are disputed or equivocal, and different inferences can reasonably be drawn from them, the question of negli-genee must be determined by the jury under the instructions of the court.</p> <p>Same. — Traveller Approaching Railroad. — Failure to Look. — Inferences Drawn hy Court. — A traveller approaching a railroad with the intention of crossing is bound to know that to attempt- to cross near and in front of a moving train involves danger; and if he does not look and listen the court will draw the inference that his act contributed to the injury.</p> <p>Same. — Servant Working at Grossing. — Right to Presume Signals will be Given. —Must Use Care to Avoid Injury. — A servant rightfully working upon the track of a railway is justified in assuming that those in charge of moving trains will obey an express mandate of the law requiring signals to be given at crossings ; but this does not absolve him from the necessity of using reasonable care, proportioned to the dangers incident to his work and position, to avoid injury to himself.</p> <p>Same. — Rule Applicable to Travellers Approaching and to Servant Working on Track. — The rule applicable to a traveller approaching a track, requiring him to look, and attributing to him contributory negligence if he do not, is not applicable to a servant of the company on the track repairing it.</p> <p>Same. — Servant.—Presumption of Knowledge Arising from Showing His Acquaintance with Locality and Duty of Servants in Rwnning Trains. — Where - a servant is injured at a railway crossing by a moving train, which crossing he has known for several years, the courts will presume, in the absence of a showing to the contrary, that during these years the employees of the company, working at that point, had been observant of the duty of reciprocal care for the safety of each other which the law imposes upon them, and obedient to the law relative to the running of trains over crossings, and the injured servant with knowledge of such facts would be justified in acting on the assumption that such careful observance of duty would continue.</p> <p>PRACTICE. — Judgment on Reversal.— When will not be. — Order Entered on Interrogatories. — On reversal of a judgment entered on the special findings of the jury, t'he Supreme Court will seldom order the entry, by the lower court, of a judgment on the general verdict; but will order that a new trial be granted, unless the entire record below is in the transcript and affirmatively shows that no injury would be done the appellee by entry of a judgment on the verdict.</p> <p>Same. — Rules of Practice Must be General. — Pules of practice must be general, and should be framed with a view to insuring, so far as possible, just results in all cases, aud minimizing the danger of injustice being done to parties in any case.</p>

<p>Negligence. — Inexperienced Servant. — Presumption of his Exercise of Care.— One employing an inexperienced servant has a right to presume that he will exercise some degree of care to avoid injury, and that he will not place himself in a dangerous position, unless thatposition is the one he is ordered to occupy.</p> <p>Same. — Servant Engaged in Cleaning Railway Locomotive. — Going Under it.— An inexperienced servant employed in cleaning a locomotive, who gets under it for that purpose without first notifying the person in charge of it of his intention, is guilty of contributory negligence.</p> <p>Same. — General Allegation of Care Overcome by Specific Allegations Showing Contributory Negligence. — The general averment of a want of negligence on the part of the plaintiff is controlled by the specific allegations of fact which show that he was negligent.</p> <p>Same. — Incompetent Fellow-Servant. — Ignorance of Plaintiff of His Incompc-teney. — In order to hold a master liable for the incompetency of his servant, whom he knows to be incompetent, when such servant has inflicted an injury on another servant, the latter must aver and show that he himself was ignorant of the fact that his fellow-servant was incompetent.</p> <p>Master and Servant. — Fellow-Servants. — Engineer and Cleaner of Locomotive. — A servant in charge of a locomotive in a yard, and another servant engaged in cleaning it, are fellow-servants.</p>

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

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

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

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

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

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

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

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

<p>City. — Street.—Laying Out Across a Railroad Track. — A city in this State has power to lay out a street across a railroad’s right of way.</p> <p>Costs. — Appeal from Assessment of Damages. — On an appeal from a street assessment allowing damages, but assessing an equal amounl of benefits, a land-owner appealed to the circuit court, and on trial the damages and benefits were both increased in an equal amount.</p> <p>Held, that the appellant was not entitled to his costs in the circuit court.</p>

<p>Bill of Exceptions. — Objections and Exceptions to Evidence. — The negative evidence afforded by one bill of exceptions that a given objection was not made and a given exception was not taken because not shown by that bill, is overcome by the affirmative evidence of the other that the objection was duly made and excepted to at the time.</p> <p>Ceiminal Law. — Assault and Battery with Intent to Kill. — Plea of Self-De-fence. — Peaceable Character of Prosecuting Witness. — State may Show in Rebuttal. — On a trial for assault and battery with intent to kill, where the defendant pleaded self-defence, and testified to facts of which he claimed to have personal knowledge tending to show that the prosecuting witness was quarrelsome and vicious, it was not error to permit the State to introduce in rebuttal evidence of the general character of the prosecuting witness for peaceableness.</p>

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

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

<p>Ceiminae Law. — Subsequent Admissions of Accomplice. — Declarations and admissions made by an accomplice, in the absence of the person on trial, long after the time when it is claimed that the crime for which such person is being tried was committed, are inadmissible.</p> <p>• Same. — Two Counts. — One for Larceny and One for Receiving Stolen Goods. —Declarations Improperly Received. — Enor Cured by Verdict. — But in such an instance, where the declarations relate to the receipt of the stolen goods, a verdict returned only on the count for larceny renders the error immaterial.</p> <p>Same. — Erroneous but Inconsequential Evidence. — Erroneous' but vague and inconsequential evidence, that does not probably injure a defendant,' will not work a reversal of a case.</p> <p>Same. — Instructions Depriving Jury of Right to Pass on Credibility of Prosecuting Witness. — An instruction that deprives á defendant of the right of the jury to consider, for what it is worth, evidence affecting the credibility of the prosecuting witness is erroneous.</p> <p>Same. — Felonious Taking. — Instruction Failing to State that in Larceny the Taking Must be so. — Failure to Distinguish Between Presumptions of Law and Fact. — An instruction reciting what is sufficient to constitute a larceny, but omitting to inform the jury that the taking must havfe been felonious in order to constitute the transaction a larceny, and also failing to distinguish between presumption of fact and law, is erroneous.</p> <p>Same. — Defendant’s Knowledge of Contents of Bundle Containing Money or of Felonious Taking. — An instruction that if the defendant’s wife took a bundle, containing money, alleged to have been stolen from a trunk in a room, and handed it out through a window to him and he took it, he would be guilty of larceny, is erroneous, for not also containing a statement that he must have known, in order to convict him, of the contents of the bundle, or that the money was taken with a felonious intent.</p>

<p>Negligence.— General Averment of Freedom from Oontribulory Negligence.— Specific Averment of Facts Overcoming. — A general averment that the plaintiff “ was without fault or negligence in all said matter, and acted with prudence and with care in all said transactions,” is sufficient to show that the plaintiff was free from contributory negligence, unless the specifie averment of facts show that he was, notwithstanding, guilty of such negligence.</p> <p>Same.— Use of Senses cmd Exercise of Beaconing Faculties by Plaintiff. — A person is bound to use the senses, and exercise the reasoning faculties with which nature has endowed him; and if he fail to do so, and is injured in consequence, neither he, in life, nor his representatives after his death, can recover for resulting injuries.</p>

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

<p>Sthbet IMPROVEMENT. — Extension of Time for Completing Improvement. — In the absence of fraud, the time for the completion of a street improvement under a contract may be lawfully extended by a vote of the common council.</p>

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

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

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

<p>Husband and Wife. — Antenuptial Contract Procured by the Husband's Fraud. —Setting Aside. — Husband’s Subsequent Conduct. — An antenuptial agreement which the intended husband by fraud and misrepresentations procures from his intended wife may be set aside at her instance before the marriage is dissolved or he dies; and his misconduct after marriage 1 toward her may be shown for the purpose of showing that her act in bringing the suit was not premature.</p>

<p>Wmii. — Construction.—Life-Estate to Wife and Fee to Son, Charged with Burden. — A testator gave to his wife his real and personal property “ to keep and hold during the term of her natural life, and give her all rights and power to sell and convey as her property, that is if she will never get married again; and after my wife’s death my real estate and personal property, together with all I own and possess, with all money due me, shall go over to my son,” E., “ and his heirs forever.” He then gave to E., after his wife’s death, all his personal property, money and choses in action, and required him to pay the testator’s debts out of the personal property. Then followed a clause providing that at the wife’s death the real estate should he appraised at its lowest cash value, and E. was required to pay two-thirds of the amount to the testator’s three grandchildren when they arrived at the age of twenty-one years. The testator then adds, in explanation of the language he had used, as follows : “ So this is understood that my son,” E., “ shall be the owner of my property, real and personal, and carry on my business, and out of my real estate he will pay the other parties above named their third part in money.”</p> <p>Held, that the wife took a life-estate in the real estate, and the son, E., took the fee charged with the payment of the two-thirds of its value to the grandchildren named.</p>

<p>Descent.— Widow During Second Marriage Conveying to Her Child with Assent of Her Memaining Children. — A widow who marries a second time may, during such marriage, convey real estate, which she holds by virtue oí her former marriage, to one of her children-by her first marriage, if her other children by such'marriage join in the deed of conveyance.</p>

<p>Courts. — Inherent Power to Orant Relief. — A court of general jurisdiction has inherent power to grant equitable relief without the aid of a statute empowering it to> act.</p> <p>Judgment. — Enjoining.—Laches.—Relief Available in Original Action. — Mistake, Fraud or Accident. — A court of equity will not enjoin the enforcement of a judgment claimed to have been obtained by fraud, mistake or accident, unless the complaint shows, in addition to the fraud, accident or mistake relied upon, that it could not have been prevented by the use of reasonable diligence on the part of the plaintiff, that he has been diligent in seeking relief, and that the law afforded him no efficient remedy for the maintenance of his defence in the action in which such judgment was rendered.</p>

<p>Fbaud. — False Representations as to Faet in Public Record. — Relying Upon. —A false representation made for a fraudulent purpose may be relied upon by the person to whom it is made, although the representation is of a fact contained in a public record.</p> <p>Same. — Notice of Fads in Public Record. — Duty to Take. — Persons are bound, in the absenc'e of fraud, to take notice of the facts exhibited in a public record.</p> <p>Subrogation. — Fraudulent Representations of Debtors. — Money Advanced to Pay off Liens and Redeem from Sale. — If a debtor, by fraudulent representations, induces a person to advance money to pay off liens, redeem the debtor’s property from sale, and to release his own judgment, which is a lien on such property, such person will be subrogated, as against such debtor, to the rights of the persons whose liens his money went to pay. Same.— Volunteer.— Who is Not: — A person -who advances money to pay off liens and protect liis own interests is not a volunteer.</p> <p>Same. — Keeping Lien Alive. — A lien will be kept alive where equity requires it and the parties intended that it should not he extinguished.</p> <p>Same. — Subsequent Lien Holder.— When Subrogated to Lien Prior to Lien of Third Person. — Money paid by a mortgagee, to remove prior liens, under the belief, induced by fraudulent representations of the mortgagor, that his mortgage would become the senior lien, is entitled to be sub-rogated to the liens he has thus paid off as against a person who knew nothing of such representations, and whose lien is prior to the mortgage lien and junior to the liens satisfied.</p> <p>Redemption. — Lay for Palling on Sunday. — Where the last day of the redemption year falls on Sunday, the land may be redeemed on the following Monday.</p> <p>Same. — Oomputationlqf Time. — In computing the time within which a redemption from a sheriff’s sale may be made, the day of sale must be excluded.</p>

<p>Highway. — Damages Reduced by Benefits Received by Opening. — In estimating the damages which a land-owner will sustain by reason of establishing a highway over his land, the benefit he will receive must also be considered.</p> <p>Same. — Pay for Fences Already Erected. — If the proposed highway will not require any additional fences, but will only require those already constructed to be removed, the land owner is not entitled to pay for such fences, but only for the cost of removing them.</p> <p>Same. — Appropriation of Fences. — There can be no appropriation of fences in the way of a proposed highway.</p> <p>Same. — Damages.—Opinions of Witnesses. — The opinions of witnesses tending to prove the market value of land, through which a proposed highway will run, without such highway, and its market value with the highway established and opened, may "be given in evidence.</p> <p>Same. — Opinion.—What is not — A question whether or not the opening of the highway will be a convenience to the land of the person asking damages, and to persons residing on it, so far as travel in a certain direction is concerned, does not call for an opinion, but for a fact.</p> <p>Same. — Opinion of Witness Whether Highway Would Affect Market Value of Land of Person Asking Damages. — When a witness has testified that he is acquainted with the market value of land in the neighborhood of the proposed highway, and that such highway would affect the market value of the land over which it was to be located ancf opened, he may then give his opinion whether or not it would affect the market value of the land of the person asking damages.</p>

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

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

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

<p>Master and Servant. — Fellow-Servant.—Section Foreman.— Vice-Principal when. — A section foreman of a railroad, with power to employ and discharge section hands, is a vice-principal when employing and discharging servants; but he is a fellow-servant in his control of the men after their employment; and for an injury to a member of his gang, occasioned by such foreman’s negligence, the railroad company is not liable.</p> <p>Same. — Eanh of Servant not Determinative. — Whether or not two persons, at a given time, are fellow-servants is not a question of rank.</p> <p>Same.— When and where not a Fellow-Servant. — If at the time the offending servant performs the act by which another servant is injured he is in the performance of a duty which the master owes to his servants, he is not a fellow-servant; but if the offending servant is in the discharge of a duty which he owes to the master, he is a fellow-servant with others engaged in the same common business.</p> <p>> Same. — Delegation of Power. — Diahility of Master. — Vice-Principal.—A master can not rid himself of the duty he owes to his servants by delegating his authority to another; and if he attempts to do so, the person to whom he delegates the power to act is a vice-principal, and not a fellow-servant.</p>

<p>Subrogation. — Indemnifying Mortgage. — Sale of Land. — Misappropriation of Collateral Security. — Subrogation to Mortgage Held by Person Misappropriating Collateral Securities. — A. brought suit against B. to foreclose a mortgage the latter had given the former to secure the purchase-money thereof. C. and her husband had previously executed an indemnifying mortgage to D. on the same property B. mortgaged. Subsequently C. and her husband sold the land to A., by whom it was sold to B. At the time of the sale by C. she placed in A.’s hands certain notes and accounts to secure her from loss by reason of the indemnifying mortgage executed to D. A. undertook to collect the notes and accounts and to properly apply their proceeds ; but she, after collecting such proceeds, appropriated them to her own use. The indemnifying mortgage executed to D. was released and satisfaction entered of record.</p> <p>Held, that C. was entitled to so much of the proceeds of A.’s mortgage, and to be subrogated thereto, as would satisfy her claim against A.</p> <p>Same. — Following Properly. — Change of Form. — The form into which property changes is not material, for equity will follow the property into whatever form it may assume in order to secure it for the person entitled to it.</p> <p>Jurisdiction. — No Right of Action. — Existence of. — Jurisdiction is nothing more than judicial authority over a general subject, and may exist even though there be no right of action.</p> <p>Pleading. — Prayer not a Test of. — A pleading is tested and construed by the facts it states, not by its prayer.</p> <p>Evidence. — Objection to. — Part Competent.— If part of the testimony of a witness is competent, a general objection to all of it may be overruled.</p>

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

<p>Appeal. — Amendment of Bill of Exceptions. — An appeal will not lie to the Supreme Court from a proceeding instituted in the Superior Court to amend a bill of exceptions embraced in the transcript of a case then pending in the Supreme Court.</p>

<p>CRIMINAL Law. — Instructions.—Directing Bailiff to Give. — It is error for the trial court, in a criminal prosecution, to direct the bailiff to go into the jury room and give the jury instructions as to the return of their verdict.</p> <p>Same. — Recaption of Verdict by Attorney. — It is error to direct that the verdict should be received by an attorney, unless he is appointed a special judge.</p>

<p>Fbatjd. — Misrepresentations Procuring Sale. — Defence in Action for Purchase-Money. — Fraudulent and wilful representations concerning the adaptability and value of land, who relies thereon, and which brings about a sale to the person to whom they are made, can be pleaded as a de-fence in an action to recover the purchase-money, to so much of such purchase-money as actually exceeds the value of the land so purchased.</p> <p>Same. — Agent.—Conspiracy.—Misrepresentations.—The fraudulent representations of an agent made in pursuance of a conspiracy between the principal and agent are the representations of the principal.</p>

<p>Negligence.— OfBailroad Company. — Defective Tie. — Injury to Employe.— In an action for the death of plaintiff’s decedent, alleged to have been caused by the defendant’s negligence, the complaint alleged that while the decedent, a yard conductor in the employ of the defendant, was making up a train and coupling cars his foot caught under the slivered portion of a defective tie, whereby he was, without fault on his part, thrown down on the track, run over and killed; that the decedent had no knowledge of the defective tie which caused his injury, and that the defendant had knowledge of such defect long enough before the decedent was injured to have repaired the same, but negligently failed and refused to make such repair.s .</p> <p>Held, that the complaint stated a cause of action. "</p> <p>Bill oe Exceptions. — Evidence.—The long-hand manuscript of the evidence, taken by the official reporter, does not become part of the record on appeal to the Supreme Court unless it is embodied in a bill of exceptions.</p>

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

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

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

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

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

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

<p>Judicial Sale. — Liens on Land Sold. — Assumption of. — In the absence of an assumption of, or agreement to pay, existing liens, land sold at a judicial sale remains the primary fund for the payment of the encumbrances thereon, to the extent of its value and in the order of their seniority.</p> <p>Same. — Purchaser not Liable for Liens on Land Purchased. — A purchaser at a judicial sale is not, by the mere fact of his purchase, liable to pay the debts secured by liens on the land purchased.</p> <p>SAME. — Purchaser Buying in Liens and Causing Sale Thereon. — Title as Against Junior Lien-Holder. — A purchaser of land at a judicial sale may cause said land to he sold on a prior lien that he has acquired, and obtain a valid title to said land by purchase at such sale as against a junior lien-holder.</p>

<p>Negmoence. — Contributory Negligence. — Averment that Plaintiff was Free from. — Effect.—An averment in the complaint, in an action for negligence, that the plaintiff was without fault or negligence which contributed to his injury is sufficient, unless it is overcome by the specific averments of the complaint, showing, notwithstanding, that he was guilty of contributory negligence.</p> <p>"Verdict. — Directing, when Evidence is Conflicting. — Where the evidence relating to any material question of fact is conflicting, the court can not, as to such question, direct a verdict.</p> <p>Same. — Evidence Equivocal.— Where the evidence, although uncontradicted, is equivocal in its character, and is fairly susceptible of two interpretations, one tending to support the claims of plaintiff and the other of the defendant, the court can not direct the verdict.</p> <p>Pbactice. — Interrogatories.— Verdict Shown to be Based on Bad Paragraph.— If it affirmatively appears from the interrogatories that the verdict is in part based upon an insufficient paragraph of complaint, it is a sufficient cause for a new trial, being “ contrary to law.”</p> <p>Same.— Verdict in Part Based on Bad Paragraph.— One Paragraph in Part Unsupported by Evidence —A verdict which is in part based on a bad paragraph of complaint, or which the record shows is in part based upon a paragraph of complaint which is wholly unsupported by the evidence, can not stand.</p>

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

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

<p>Winn. — Language of. — Sow Construed. — In the construction of wills, courts seek to ascertain and promulgate the intention of the testator. In ascertaining such intention, isolated statements and clauses of the testament will not be selected, and their meaning determined, without any relation to other clauses or parts of the will. The courts will look to the whole instrument, and construe each part with relation to the language used in other parts of the instrument, which sheds any light on the controverted portion of the will.</p> <p>Same. — Mem, Relating to Real and Personal Property. — Construction of— Life-Estate. — A will contained the following item: “ I will and bequeath all my property, both real and personal, to my faithful and beloved wife, to do with and dispose of after my decease as she may think best, and I hereby enjoin it upon her to pay all debts which may be due at my decease. And I further declare it to be my will that, at the decease of my wife, my real estate be equally divided among my heirs, and the personal property which she may leave to be disposed of as she may desire.” This was the only item in the will relating to the real estate. It was not necessary to sell the real estate to pay debts.</p> <p>Held, that the item of the will referred to, gave to the widow a life-estate only in the land, and the remainder to the heirs, and that the absolute title to tlie personal property was in the widow with full power of disposition.</p>

<p>Judgment. — Default.—Foreclosure of Mortgage. — Purchaser of Tax Title.— Beneficiaries of Purchaser. — How Affected by. — Decree of Foreclosure. — Quieting Title. — A suit was instituted to foreclose a mortgage, and a party was made defendant to the suit who held a lien against the mortgaged premises which was junior and subject to the mortgage. After he was served with process, and during the pendency of the foreclosure proceeding, he purchased the mortgaged property at a tax sale, taking the certificate of purchase in his own name. The purchase was in fact made with the money of third parties and for their use and benefit, but without any fraudulent intent between the purchaser and the beneficiaries. A judgment by default was entered against said defendant in the foreclosure proceeding.</p> <p>Held, that if said defendant had purchased the tax title in his own right, the lien would have been barred by the decree of foreclosure.</p> <p>Held, also, that the beneficiaries of such purchaser do not occupy any better position than the original purchaser.</p> <p>Held, also, that it was not necessary that the purchaser of the tax title should have been sued as a trustee in order to bind the beneficiaries, there being nothing to indicate that such a relation existed.</p> <p>Held, also, that the appellee, or the mortgagees under whom he claims title, was not required to pay or to offer to pay the taxes on the land for which it was sold, in order to have the title to the land quieted.</p>

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

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

<p>Bill op Exceptions.— Use of “Testimony ” for “Evidence.” — The using of the word “ testimony ” for “ evidence,” in a bill of exceptions, where the meaning is obvious, will not defeat the operation of such an instrument.</p> <p>Same.— Use of “Offered ’’for “Introduced.” — The use of the word “ offered ” in place of “ introduced,” in a bill of exceptions, with reference to the introduction of evidence, is sufficient if the record affirmatively shows that all the evidence offered was introduced. The error occasioned by the inadvertent use of the word “ offered ” for “ introduced,” in such a connection, is cured by the phrase “ this was all the evidence given in the cause.”</p> <p>Same. — Nunc Pro Tunc. — Appeal.—New Trial. — A bill of exceptions may be amended by a nunc pro tunc entry, and the order appealed from without a motion for a new trial.</p> <p>Same.— Who May Apply for Correction. — The party who has prepared a bill of exceptions may apply to have it corrected; but the evidence will be more closely scrutinized than if the opposite party made the application.</p> <p>Same. — Laches.—A party who has been guilty of laches in securing the correction of a defective bill of exceptions will not be granted any relief.</p> <p>Nunc Peo Tunc Entey. — Auxiliary.—Appeal.—A proceeding for a nunc pro tunc order is part of the original cause of action, and auxiliary thereto, and may be brought up on appeal of that action.</p> <p>Same. — Appeal.—How Taken. — Nunc pro tunc entries made during the progress of a case can not be appealed from as such, but may be brought up with the case when an appeal of such case is taken; but such entries made after the case has been determined maybe appealed from without bringing up the entire case.</p> <p>Same. — Motion for a New Trial. — In order to present the sufficiency of the evidence on a motion for a nunc pro tune entry, a motion for a new trial is not necessary.</p> <p>Same. — Notice.-—Summons.—A mere notice is sufficient on a motion for a nunc pro tune entry, and a summons is not required; but if a summons is issued it will be treated as a notice.</p> <p>Same. — Pleading.—Motion.—Sufficiency.—On such a motion no formal pleading is necessary, and no great strictness is required in the preparation of the motion.</p> <p>Same. — Inherent Power of Court. — A statute is not necessary to enable a court to correct mistakes and make its record speak the truth.</p> <p>Same. — Office Not to Correct Mistakes.- — Such an entry can not be used as a medium whereby a court can change its rulings actually made, however erroneous or under whatever mistakes of law or facts such ruling may have been made; nor to correct mistakes made by counsel in the introduction of evidence.</p>

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

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

<p>CRIMINAL Law. — Indictment.—Conspiracy.—Value of Goods. — An indictment for a conspiracy to commit a burglary is not defective for failing to state the kind or value of goods intended to be stolen.</p> <p>Same. — Conspiracy.—Acquaintanceship of Conspirators. — On a charge of conspiring to commit a burglary or other crime the acquaintance of the conspirators with each other may be shown.</p> <p>Same. — Defendant’s Knowledge of Property in House to be Burglarized. — On such a charge it may be shown that valuable property was kept in the house or place to be burglarized without first showing that the accused knew of it.</p> <p>Same. — Evidence Showing Endeavor of Accused to Meet Fellow-Conspirators.— Evidence tending to show, in connection with otffer evidence already given, that the accused was endeavoring to meet his fellow-conspirators, is admissible.</p> <p>Same. — Answer Not in Record. — An erroneous question to which no answer appears in the record is not such an error as will reverse the case.</p> <p>Same. — Conspiracy, Remark of Judge that it Had Been Shown. — Curing Error. — A remark of the judge, on the trial of a conspiracy to commit a crime, that in his opinion sufficient evidence had been introduced to show the conspiracy charged, and, upon the theory that a third person was one of the conspirators, his declarations in furtherance of the conspiracy and carrying out the unlawful design are admissible, is erroneous ; but the court ma.y cure the error in its general charge to the jury by stating to them to disregard the opinion of the court.</p> <p>Same. — Casual Remark of Court.— Withdrawing. — A casual remark made by the court in the presence of the jury maybe withdrawn just as an erroneous instruction, and the error, if any, will be cured.</p> <p>Instructions. — Presumption as to Instructions Refused. — Instructions Not All in Record —If the record does not contain all the instructions given to the jury, it will be presumed that the instructions given, but omitted from the record, gave the substance of all proper instructions refused.</p> <p>Same. — Evidence Not in Record. — Presumption.—If the evidence is not in the record, every reasonable presumption will be indulged to uphold the instructions given.</p> <p>Change oj? Venue. — Discretion of Court. — Abuse.—On a charge of a conspiracy to commit a burglary, the ruling of the court upen the motion for a change of venue from the county is a matter very much within the discretion of the court, and its refusal to grant the change is not reversible error, unless it is shown that there was an abuse of discretion.</p>

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

<p>Malicious Prosecution. — Malice.—Evidence.—III- Will Against Third Persons. — In an action for malicious prosecution it is competent to prove the ill-will or malice of the defendant against the plaintiff, but it is not competent to prove that the defendant entertained malice against third persons.</p> <p>Same. — Where it becomes necessary to show the intent, it is competent to' prove the transactions between the immediate parties, and the nature of the controversy between them.</p>

<p>Fraudulent Conveyance. — Setting Aside. — Special Finding. — Fraudulent Intent. — In an action to set aside a conveyance as fraudulent, where there is a special finding, a fraudulent intent must be found as a fact, otherwise the conveyance can not be held to be fraudulent as to creditors.</p>

<p>Assignment fob Benefit of Cbeditoks. — Mights of Assignee to Possession. —Under sections 2662 et seg., R. S. 1881, the assignee may recover, as against the assignor, the actual possession of the real estate embraced in the deed of assignment, for the purpose of letting the same to tenants.</p> <p>Same. — Inchoate Interest of Assignor’s Wife. — Where the wife of an assignor for the benefit of creditors does not join in the deed of assignment, her inchoate interest in the land conveyed does not become perfect until a sale by the assignee, who is entitled to actual possession until such sale.</p>

<p>Practice. — Trial Court. — Presumptions in Favor of Proceedings of. — On appeal the presumption is in favor of the proceedings of the trial court, and a party who assails them must affirmatively show prejudicial error.</p>

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

<p>Verdict. — Special Findings Unauthorized. — Unauthorized findings inserted in a special verdict must be disregarded.</p> <p>Mortgage.— When Deed may be a Mortgage. — Purchaser with Notice.--An absolute conveyance, without any accompanying written defeasance, contract of repurchase, or other written agreement, may be shown by means of extrinsic and parol evidence to be in reality a mortgage, as between the parties to it and as against all those deriving title from or under the original grantee who are not bona fide purchasers for value and without notice.</p> <p>Same. — How Construed in Absence of Evidence. — Prima facie such an instru- ■ ment is an absolute deed; and a court will so recognize and treat it in the absence of affirmative evidence changing its apparent character.</p> <p>Fraudulent Conveyance. — Aiding Grantor to Recover. — Heir.— Wife. — As between the parties a court of equity will never interfere at the instance of a fraudulent grantor, who executes a conveyance to cheat his creditors, to aid him in the recovery of his property; and the heirs of a fraudulent grantor can no more question the validity of the conveyance than he can liimself, but his wife can, although she join in the deed, if she had no knowledge of the intended fraud.</p> <p>'Costs. — Quieting Title. — Disclaimer,—-In order to recover his costs, a defendant in a suit to quiet title must file his disclaimer when he first appears; and if he does not then but afterwards file his disclaimer the plaintiff will be entitled to a judgment for all costs accrued up to the date of its filing.</p>

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

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

<p>PRACTICE. — Reversing Case on Weight of the Evidence. — The Supreme Court will usually not reverse a case on the evidence, although the appellant has the preponderance.</p>

<p>Practice. — Supreme Court. — Failure to Specifically Point Out Defects in Pleading. — Defects in a pleading which are not apparentfrom abarestatement, , must be specifically pointed out by counsel, and they must support their position by argument, and, if need be, by the citation of authorities ; and unless this is done, the court will assume that no defects exist in the pleading.</p> <p>Jurisdiction.— When Collateral Attack will not Lie. — Where there is general jurisdiction of the subject, and the jurisdiction of the particular case depends upon the facts, the decision of the tribunal making it is conclusive against a collateral attack.</p> <p>Same. — By Consent. — Consent or acquiescence can not confer jurisdiction of the general subject; but jurisdiction of a particular instance falling within the scope of the general subject may be given by consent, either express or implied.</p> <p>Same. — Notice Necessary. — -There can be no jurisdiction without notice.</p> <p>Same. — Notice.—Sufficiency.—If the notice given is sufficient to call into exercise the authority of the court and invoke its judgment upon the jurisdictional facts, the decision of the court that there was notice can not be held void, and its judgment on that ground collaterally attacked.</p> <p>Same. — Defective Notice. — If there is a notice provided for by law, and notice is assumed,to be given under the law, then there is jurisdiction, •although the notice is defective.</p> <p>Gbavel Hoads. — Collateral Attack on Decision of Board of Comiy Commissioners. — The decision of a board of county commissioners that a petition for a free gravel road is sufficient, and that it is signed by the proper number of freeholders, is conclusive as against a collateral attack.</p> <p>Same. — Extent ofPmoer of County Board. — A board of county commissioners have not only power to order free gravel roads to be constructed, but also to order bonds to be awarded for its construction.</p> <p>Same. — Notice of Assessment. — The board has no authority to order the making of an assessment, or second assessment, without first giving notice thereof.</p> <p>Same. — Assessment.— When Effective. — Approved.—The assessment for a free gravel road does not become effective until approved by the board of county commissioners.</p> <p>Same. — Injunction.—Bringing Suit Before Assessment Under Defective Notice.— If a suit is brought to enjoin an assessment about to be made under a defective notice, an answer setting up such notice and an assessment [ made subsequently to the commencement of such suit, is insufficient.</p>

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

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

<p>New Tb.IA.Ii. — Newly-Discovered Evidence. — Diligence.—A new trial will not be granted on account of newly-discovered evidence, wherever, by the use of reasonable diligence, the evidence might have been discovered, and obtained for use at the trial. The facts constituting the diligence used before the trial to obtain the evidence must be pleaded, and it is not sufficient merely to allege that due diligence was used.</p> <p>Same. — Complaint Must Show Materiality of Newly-Discovered Evidence. — In an action for a new trial on the ground of newly-discovered evidence, the complaint is fatally defective if it fails to show, upon its face, the nature of the original action and the materiality of the newly-discovered evidence.</p>

<p>From the St. Joseph Circuit Court.</p>

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

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

<p>Appeal. — Final Judgment. — In an action to quiet title, where all tlfe defendants demurred to the complaint, but one, who filed . a cross-complaint, and judgment was rendered against the demurrants, and the cause continued on the cross-complaint, the judgment was notfinal, and can not be appealed from.</p> <p>Same. — Jurisdiction.—Where the judgment appealed from is not a final judgment, the consent of the parties will not give the Supreme Court jurisdiction.</p>

<p>Execution. — Sale of Judgment. — Action to Set Aside. — Sufficiency of Complaint.- — -In an action to set aside the sale of a judgment on execution, a complaint alleging that the plaintiff did not give up the judgment to be levied on is sufficient under section 724, R. S. 1881, which provides that choses in action may he levied upon when given up.</p> <p>Same ■ — -Sufficiency of Answer. — An answer to such complaint, confessing that the plaintiff did not give up the judgment for levy and sale, and failing to allege any matter sufficient to avoid such confession, is bad on demurrer.</p>

<p>PRACTICE. — Pendency of Another Action. — How Raised. — Motion to Dismiss.— Plea in Abatement. — It is proper to overrule a motion made by a guardian ad litem to dismiss an action for the reason “ that there is now pending in this court another action in which it is sought to have settled the only question which can be adjudicated in this cause.” The matter sought to be raised by the motion must be plead in an answer of abatement, duly verified.</p> <p>Affidavit. — Sworn to Upon Belief. — An affidavit sworn to upon the belief of a party is equivalent to swearing that it is true. .</p> <p>Pleading.— Want of Verification. — Demurrer.—Motion to Reject. — Want of verification of a pleading can not be raised by a demurrer, but must be taken advantage of by a motion to reject for want of verification.</p> <p>Injunction.— Verification of Complaint.— When not Required. — Where the only relief prayed for is an injunction upon the final hearing, a verification of the complaint is not required. Where the appeal is from the final judgment, and not from an interlocutory order granting a temporary injunction, it is wholly immaterial whether the complaint was verified or not.</p> <p>Same.— Will. — Devise of Lands. — Sale of Lands by Devisee without Right.— Trustee May Enjoin Purchaser. — Certain lands were devised to a party for and during his natural life, upon the express condition that the devisee should not sell or dispose of his interest in the lands by a sale in gross, or hold and enjoy the same in any other manner than by renting out the same from year to year and receiving the rents. The will also provided that after closing up the trust and making settlement with the court, the executor should not be finally discharged, but should act as trustee upon the failure of the devisee to keep the taxes upon the lands devised to him fully and promptly paid, or if he should attempt tosell the same in gross.</p> <p>Held, that the trustee might maintain an action to restrain the defendant to whom it was alleged the devisee sold said lands in gross from taking possession of the same, the insolvency of said defendant being alleged, and it being shown that the lands had been sold for taxes, and that they had not been redeemed from the sale,and that the trustee had in his hands no means of said trust with which to pay the taxes, and no way of acquiring such means except by renting out the lands as provided in said will.</p> <p>Action. — Survival of. — Death of Defendant. — Substitution of Heirs. — Complaint Applies to Them. — Where in a cause of action which survives, heirs are substituted as defendants upon the death of their ancestors, they stand in precisely the same relation to the plaintiffs that the original defendants did, and the allegations of the complaint apply to them as if they were original defendants.</p>

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

<p>Elections. — Construction of Law by Election Officers. — A construction of the election law accepted and acted upon by the officers of election, whose duty it is to administer the law, should not be ignored by the courts, unless it is palpably wrong.</p> <p>Same. — Power of Legislature Over. — It is within the power of the Legislature to prescribe the manner of holding elections and the mode in which electors shall express their choice.</p> <p>Same. — Elector Must Vote in the Manner Presciihed by Law. — If an elector does not choose to indicate his choice in the manner prescribed by law, he can not complain if his ballot is not counted.</p> <p>Same. — Australian System. — Stamping Ballot. — An elector can not indicate his choice in any other manner than by stamping one of the squares of his ballot with the stamp; and he can not stamp his ballot elsewhere, and leave the election board to guess at his intention.</p> <p>Same. — Lrregularities.—Directory Provision of Law Violated. — Mere irregularities on the part of the election officers, or their omission to observe some merely directory provision of the law, will not vitiate an election.</p> <p>■Same. — Directory and Mandatory Provisions. — What are. — If a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts must so hold whether the particular act in question goes to the merits or affects the result of the election or not, for such a statute is mandatory, and the courts can not enter into the question of its policy.</p> <p>Same. — Mandatory when Merits of Election are Affected.— Directory when Merits not Affected. — If a statute simply provides that certain things shall be done within a particular time, or in a particular manner, and does not declare that their performance shall be essential to the validity of an election, they will be regarded as mandatory if they affect the merits of the election, and as directory only if they do not affects its merits.</p> <p>Same. — Departure from Mode of Holding Election, When Does not Invalidate. — A departure from the mode of holding an election as prescribed by statute, which, does not deprive legal voters of their right to vote, or permit illegal voters to participate in the election, or cast uncertainty on the result, does not affect the validity of the election.</p> <p>Same. — ClerPs Initials Indorsed on Wrong Corner of Ballot. — The statute requiring election clerks to indorse their initials on.the ballot is mandatory ; but the requirement that they indorse their initials in a particular place is directory only; and a ballot indorsed at an improper place can not for that reason be rejected.</p> <p>Same. — Ballot Placed in Wrong BaUot-Box. — The fact that the election officers place a ballot in the wrong ballot-box by mistake will not vitiate the ballot and authorize its rejection in making the count.</p> <p>Statute. — Construction.— Examining Other Statutes. — Legislative Intent.— Meaning Doubtful. — Purpose.—History.—For the purpose of construing a statute and ascertaining the legislative intent the courts will look to-the whole statute and all its parts, and when such intention is so ascertained, it will prevail over the literal import and the strict letter of the statute; and where the meaning is doubtful and uncertain, the-courts will look into the situation and circumstances under- which it was enacted to other statutes, if there are any on the same subject, whether passed before or after the statute under consideration, whether in force or not, as well as to the history of the country, and will carefully consider, in this connection, the purpose sought to be accomplished.</p>

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

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

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

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

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

<p>Highway. — Proceedings to Establish. — Remonstrance.—Negligence of Appellant’s Attorney. — Appeal.—In a highway proceeding, objections must he appropriately presented to the hoard of commissioners or they can not he made available in the circuit court on appeal. It is no excuse for appellant’s failure to file a remonstrance before the board that his attorney was negligent, as the negligence of the attorney is the negligence of the client.</p>

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

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

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

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

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

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