Volume 132 — Indiana Reports

<p>Highway. — Location of. — Report of Viewers. — Public Utility. — In the matter of the location and opening of a highway the statute does not require the viewers to state in their report that the road will be of public utility. Their report recommending the opening of the road is a sufficient expression of their judgment that it will be of public utility. McKee v. Gould, 108 Ind. 107, Jones v. Duffy, 118 Ind. 440, Bowman v. Job, 123 Ind. 44, distinguished.</p> <p>Same. — Bescription of. — Report of Viewers Must Contain. — The viewers must give a description of the location of the proposed highway by metes and bounds. Por sufficiency of description see opinion.</p> <p>Same. — Selection of “ Best Ground.” — Report Need not State. — While the statute makes it the duty of the viewers to “locate and mark” the highway “on the best ground,” they are not required to state in their report that they have selected the best ground for the route of the proposed highway.</p>

<p>INJUNCTION. — Establishment of Highway. — Disobedience of Mandate. — Contempt of Court. — Where the board of county commissioners appointed viewers and laid out and established a highway on a section line in a certain township, and the supervisors of certain road districts in said township were mandated to open up said highway on said section linej but disregarding said mandate, they proceeded to open up said highway on a different line, and for that purpose were endeavoring to wrongfully take possession of a portion of the appellee’s real estate, and to permanently deprive him of the same, the latter may enjoin them from so doing. The fact that the defendants were liable to punishment for contempt in disobeying the mandate of the court would not prevent the appellee from proceeding against them by way of injunction.</p>

<p>Municipal Corporation. — Validity of Penal Ordinance.— Justice of the Peace. — Appeal to Supreme Court. — Where a party was prosecuted before a justice of the peace for the violation of a penal ordinance of a town, the amount demanded being twenty dollars, and the only question involved being the guilt or innocence of the accused, there is no right of appeal, on the part of the town, to the Supreme Court, under section 632, R. S. 1881. The failure to convict the accused left the ordinance unaffected by the litigation, so that the validity of the ordinance upon which the prosecution was based was not in question.</p>

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

<p>Raiekoad. — Action for Personal Injuries. — Complaint.—Averments as to Contributory Negligence. — In an action against a railroad company to recover damages for personal injuries, it must affirmatively appear from the averments of the complaint that the injured party himself was without fault. This may be by the simple general averment that he was without fault, or there may be such a statement of facts without any such general averment as will be sufficient.</p> <p>Same. — Foreign Car. — Duly of Employee to Inspect. — If the employee of a railroad company is injured by reason of defects in a car transferred to said company by another railroad, and by the rules of the company known to said employee, it is his duty to inspect said car; he can not recover for injuries caused simply by his failure to make the inspection.</p>

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

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

<p>Will. — Election Under. — Husband, and Wife. — Where a wife dies testate, making provision in her will for her husband, the husband may elect to take under the will or under the law, but can not take under both; and when he elects to take under the one, he divests himself of his rights under the other.</p> <p>Verdict. — Should Have Reasonable Construction. — Technical Defects. — A ver* diet, however informal, is good if the court can understand it. It is to' have a reasonable intendment, and to receive a reasonable construction, and is not to be avoided unless from necessity, and, if rendered upon substantial issues of fact, should not be disregarded on account of mere technical defects.</p>

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

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

<p>Jurisdiction. — Justice of the Peace. — Killing of Stock — Railroad.—Summons. —Service.—In an action before a justice of the peace against a railroad company to recover damages for the hilling of stock, it is not essential in order to confer jurisdiction upon the justice that the return of the constable (the writ having been served upon aconductorof the company) shall show that he made the service within his own county. Where the person or individual served resides within the county, or, like conductors of railways, are constantly passing through it, the presumption will be entertained, in the absence of a showing to the contrary, that the officer did not depart from the limits of his jurisdiction.</p>

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

<p>Municipal Corporation. — Councilman Moving into Another Ward. — Vacation of Office. — Where a councilman is elected from a certain ward in a city, and after his election he moves into and becomes a resident of another ward, he does not by such action vacate his said office, for he is not an officer of the ward from which he was elected, but an officer of the entire city. The statute only provides that he shall be a resident of the ward at the time of his election.</p>

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

<p>Mabbied Woman. — Interest of in Husband’s Lands.— When Divested by Judgment. — A judgment rendered against a married woman and her husband, quieting the title to land owned by the husband during coverture, but which prior to the action he alone conveyed, is binding on the wife after the husband’s death, and prevents her from recovering the interest in the property given by 'section 2491, K. S. 1881. Curren v. Driver, 33 Ind. 480, overruled.</p>

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

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

<p>County. — Liability for Negligence of its Officers. — In an action for damages alleged to have been occasioned by the negligence and carelessness of the county commissioners in the care and control of a court-house, the county is not liable. It can not be held liable for the negligence of its agents or officers, nnless made so by statute.</p>

<p>Fraudulent Conveyance. — Husband and Wife. — Transfer of Property to Wife.— Valid Indebtedness. — Sights of Creditors. — Where a husband, when he was perfectly solvent, and long before the debt in suit was contracted, gave his wife a sum of money which she kept for several months and then loaned to him, under an agreement that he would repay it, and he transferred to her ajn interest in a farm in payment thereof, her said interest can not be subjected to the payment of her husband’s indebtedness.</p>

<p>Master and Servant. — Liability of Employer for Injury of Employee by Co-Employee. — Where laborers are engaged together at the same place in a work that requires co-operation, and for the furtherance of a common purpose, and so associated as to bring them in frequent contact with each other, they are co-laborers, and the employer can not be held liable for an injury to one employee by the negligence of a co-employee.</p> <p>Pleading. — Action for Damages. — Contributory Negligence. — In an action for damages the complaint must allege that the plaintiff is without fault, or an equivalent averment, or the complaint will be fatally defective.</p>

<p>Graved Road. — Including of Within Municipal Limits. — Exaction of Tolls.— Mow Affected. — The extension of the limits of a municipal corporation, so as to embrace a turnpike owned by a private corporation can not take from the corporation the right to exact tolls.</p> <p>Same. — Answer in Justification. — An answer in justification is bad which assumes that the defendants had a right to the road within the corporate limits, the answer alleging that “ said road when said acts complained of were done, became a public street of said city,” and admitting the destruction of a toll house and gate belonging to the turnpike company, but attempting to justify the act by alleging that they were worthless. If the toll house was the property of the turnpike company, the defendants had no right remove or confiscate it, even if it was valueless. An answer in justification must fully justify the wrongful acts charged in the complaint, or it will be insufficient.</p>

<p>Appellate Court. — Jurisdiction.—Action for Recovery of Specific Personal Property. — Equitable Defence. — The Appellate Court has jurisdiction where an appeal is taken in an action for the recovery of specific personal property, although intermediate between the filing of the complaint and the rendition of the judgment defences of ah equitable nature may be interposed.</p>

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

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

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

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

<p>Drainage. — Judgment Establishing Ditch. — Correction of. — The drainage law contemplates that after judgment has been rendered by the court, establishing a ditch, and ordering its construction,.the case shall remain upon the docket of the court while the ditch is in progress of construction. It is on the docket, however, only for the purpose of carrying into effect the judgment'actually entered, and not for any action modifying or changing that judgment.</p> <p>Same. — Correction of Judgment After Term. — Notice.— Waiver of. — After the expiration of the term at which judgment has been rendered by the court establishing a ditch, no order can be made modifying or correcting the judgment, except upon notice again bringing the parties before it, or upon their voluntary appearance, and a waiver of notice by them.</p> <p>Same.— What Constitutes Waiver of Notice. — Where, however, the court had rendered judgment against the remonstrators, establishing the ditch, and the clerk had taxed the costs of the proceedings against them, but no judgment for costs had been so entered up, and a motion was filed for a nunc pro tunc entry, to that effect, and the remonstrators, after entering a special appearance expressly challenging thq jurisdiction of the court oyer their persons, and before any ruling was made on that question, filed a counter-motion on the subject of costs, they thereby waived want of notice, and the action was equivalent to a full and voluntary appearance to appellee’s motion.</p> <p>Same. — Judgment for Costs Against Demonstrators. — Nunc pro Tunc Entry.— A finding and judgment against remonstrators, establishing a ditch, properly and necessarily involves a judgment for costs. See section 590, R. S. 1881. The failure of the clerk to enter, as a part of the judgment, a judgment for costs, was a mere omission to record a part of the judgment actually rendered, as shown by the record, and the omission could be supplied by a nunc pro tunc entry.</p> <p>Same. — Judgment Establishing Ditch. — Collateral Attack. — The circuit court having jurisdiction over the subject-matter of the construction of public drains, the judgment of a circuit court establishing a particular drain, can not be attacked collaterally, on the ground that said drain¡ if constructed, will have an effect not contemplated by the Legislature in the enactment of the drainage law.</p> <p>Jurisdiction. — Collateral Attack.— When Must be Made. — Direct Attack.— When too Date. — Where the court has jurisdiction of the subject-matter, and objection is made to its jurisdiction over a particular case, the objection must be promptly made, and comes too late after the parties pursue the case to final judgment in the court of last resort without raising the jurisdictional question, and raise it for the first time when the judgment of affirmance by the Supreme Court is spread on the records of the circuit court. After such a delay, the question of jurisdiction could not be raised, even in a direct attack on the judgment.</p> <p>Judgment. — Nunc pro Tunc Entry.— When May he Made. — A nvmc pro time entry may be made if there is any entry or memorandum found among the records of the case, required by law to be kept, showing action taken, or orders made by the court, which the clerk has failed to record.</p>

<p>Assignment oe Ebbobs. — Names of Parties. — Omission of. — An assignment of errors is defective in which neither the names of all the appellants, nor the Christian name of one of the appellees appear either in the title or the body of the assignment of errors.</p> <p>Appeal. — Dismissal of. — Assignment of Errors. — Failure to Name Parties.— Notice to Go-Parties. — A failure to name all the parties in an assignment of errors, or a failure to give notice to co-parties, against whom judgment was rendered in the court below, is a ground for the dismissal of the appeal.</p> <p>Same. — Objection to Assignment of Errors. — Waiver of. — Submission of Cause.— What Does not Constitute. — An agreement on the part of appellees to allow counsel for appellant an extension of time for filing his brief, with a request that, when the briefs were filed, the case should be passed upon in the regular way, and afterwards a second agreement for an extension, in which the right to make any legal objection to the record and assignment of errors was reserved, did not constitute a waiver of any objection to the assignment of errors, or a submission of the cause by agreement.</p>

<p>Special Verdict. — Defects in Can Not be Supplied by Intendment. — In an action where the jury returned a special verdict, and the defendant moved for a judgment in his favor on the finding, and the motion was sustained and judgment rendered accordingly, the plaintiff on appeal must fail, unless the facts set out in the special verdict support the material allegations of the complaint. Defects in special verdicts can not be supplied by intendment.</p> <p>Railroad. — Rislcs Assumed by Employees. — Contributory Negligence. — Duly of Employer. — When a person enters into the employment of a railroad company, the employer is under no obligation to examine the employee as to his experience or fitness, unless said applicant be a child, and said employee assumes the risk of such perils as are incident to the same, and must exercise care proportion ate to the danger of the service. The employee will be held to'have knowledge of what is open and obvious, and to recover damages for an ,injury sustained he must be free from contributory negligence.</p> <p>Master and Servant. — Duty of Employer. — It is the duty of an employer to provide a safe working place and appliances for his employee, but he is not an insurer.</p>

<p>MUNICIPAL CoepOBATION. — Ordinance Providing for Supply of Gas. — Construction of. — Exclusive Privilege. — The defendant passed an ordinance granting to the plaintiff’s assignors, for a period of twenty-five years, the privilege of laying gas mains, to supply gas for illuminating purposes, along certain streets of the city. It was provided that the defendant should maintain a certain number of lamp-posts, and such additional lamp-posts and lamps along said mains as the city council might from time to time direct. It was further provided that, upon the erection of said lamps, the city should take sufficient gas from the company to keep the said lamps lighted, and should pay at the rate of three dollars per month for each and every lamp. Afterwards an extension of the mains was ordered, and the plaintiff submitted a proposition concerning the use and payment of the additional lamps to be provided. The proposition was accepted by the common council, with the stipulation “that it be in force no longer time than the original contract.” This subsequent arrangement was referred to as a contract in a number of resolutions passed by the common council in ordering the extension of mains.</p> <p>Held, that although no definite time was mentioned in the ordinance during which the defendant was obligated to take gas for lighting its street lamps, the interpretation of the ordinance by the ordinary rules of construction and the acts of the parties thereunder, show that, by the ordinance, the city contracted to pay for twenty-five years for the gas furnished by the lamps provided for therein and by those afterward erected.</p> <p>Held, also, that the ordinance did not grant an exclusive use of the streets, and that a monopoly was not given for supplying the city with gas for street lighting purposes.</p> <p>Held, also, that the contract was not void on account of any supposed surrender by the common council of its legislative power.</p> <p>Same. — 1light to Contract for Supply of Cas.— What Period not Considered Unreasonable. — A city has the power to contract for a supply of gas or water for a period extending beyond the tenure of office of the individual members of the common council making such contract. It can not be said that twenty-five years is an unreasonable time for which to contract for a supply of light or water.</p> <p>Same. — Act of March 3d, 1883, Construed. — The act of March 3d, 1883 (Elliott’s Supp., section 794), authorizing the common councils of cities to contract for light for its streets and alleys for a period of time not exceeding ten years, does not affect the contract sued on. By the fourth section of the act, existing contracts, except such as confer exclusive privileges, are declared to be valid. The contract involved did not confer exclusive privileges, and it is therefore not affected by said act.</p> <p>Same. — Pleading.—Answer.—Conflict of Ordinances. — In an action brought by the plaintiff to recover for gas supplied to the defendant for public street lighting, under said ordinance, a demurrer was properly sustained to a paragraph of answer which alleged that, at the time of the passage of said ordinance, an ordinance of the defendant was in force which required that proposals for work, the estimated cost of which should exceed $40, should be let to the lowest bidder after a notice for proposals had been given by publication, and that the ordinance in suit was passed in violation of this ordinance. The ordinance claimed to have been violated evidently referred to' work done for the city, and not to contracts such as the one in suit. If the passage of the ordinance sued on was within the prohibition of the other ordinance, its passage repealed it pro tanto.</p> <p>Same. — Answer.—Attempted Partial Annulment of Contract. — A paragraph of answer was also bad which alleged that the common council, by resolution, prohibited.the plaintiff from supplying gas after a certain date for ten of the lamp-posts specified in the complaint. The contract was mutually binding upon both the contracting parties, and neither could, by its own act, prejudice the position of the other.</p> <p>Contract. — Ambiguous.—Construction oj by Parties. — Duty oj Court. — It is the duty of a court, where the language of a contract is indefinite or ambiguous, to adopt the construction and practical interpretation which the parties themselves have put upon the contract, and to enforce that construction.</p> <p>Practice. — Appeal.—New Trial. — Amount oj Recovery. — In order to present a question on appeal, relating to the amount of the recovery, it must be assigned as a cause for a new trial.</p>

<p>Common Carrier. — Transportation of Live Stock. — Owner Accompanying.— Liability of Carrier. — Where the property which a railroad company agreed to carry was live stock, and the owner undertook, by special contract entered into with the company, to go with the stock and care for it, he is bound to show that the injury or loss for which he is seeking to recover damages was not attributable to the failure to perform or the negligent or improper performance of acts which he undertook to perform. He must show that the injury was caused by the carrier’s breach of duty.</p> <p>Same. — Special Contract Exempting Carrier from, Certain Perils. — Rule as to Recovery. — Burden of Proof. — Although a carrier can not contract for exemption from his own fraud or negligence, he may limit his liability by special contract, and there can be no recovery where the loss is caused by one of the perils from which the contract exempts the carrier. The burden of establishing the exemption is, however, upon the company.</p> <p>Pleading. — Several Demurrer. — A demurrer in the following language: “Come now the defendants and demurr severally to each paragraph •of the complaint as amended, because the same does not state facts sufficient to constitute a cause of action against defendants,” must be regarded as a several demurrer ¡addressed to each paragraph of the complaint.</p> <p>Practice. — Demurrer.— Overruling of' to Bad Paragraph of Complaint.— Where a demurrer is erroneously overruled to a bad paragraph of a complaint, and it is not affirmatively shown by the record that the judgment rests on the good paragraphs, a reversal must be adjudged.</p> <p>Contbact. — Special.—Breach of. — Pleading.—Where a plaintiff declares upon a special contract, he must state facts showing an actionable breach of that contract, and he can not recover upon any contract except that upon which he specially declares.</p>

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

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

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

<p>Mortgage. — Foreclosure.— Action to Redeem,.— Counter-Claim.— Demurrer. —In an action to redeem a tract of land, sold upon a foreclosure of a mortgage, and for an accounting and a judgment for rents received by tbe appellee while in possession of the land the appellant can not complain of the action of the court in overruling a demurrer to a counter-claim filed by the appellee, the court having found against the appellant in his action to recover the land or redeem it from sale, and in favor of the appellee upon the issues joined involving its ownership.</p>

<p>Deposition. — When May be Taken. — Who Determines. — Befusal of Witness to Submit to Examination. — Contempt.—The deposition of a witness may be taken under the terms of our statute, although a state of facts does not exist at the time that would render the deposition admissible in evidence. The question as to whether a cause for taking a deposition exists is for the party who seeks to take it, and a witness may be punished for contempt for his refusal to submit to the examination. The statutes of the State do not enumerate any causes for taking depositions, but simply provide for the causes in which they may be read. See sections 423 and 432, R. S. 1881.</p>

<p>Winn.— Construction of.— Specific Legacies.— Charge Upon Seal Estate. — “Where a testator made various bequests of money, and then, by the terms of the will, gave to his son and daughter “ all the balance or residue of his estate, real and personal,” and after the payment of the testator’s debts and the costs of administration there was not sufficient personal estate left to pay the bequests, they became a charge on the real estate, as it was not specifically devised, but merely included in the residuary clause.</p> <p>Same. — Sale of Land to Pay. — Specific Legacies. — Duty of Aministrator to Sell. —It is the duty of an administrator with the will annexed to pay specific bequests, and if they are a charge upon or a lien against the real estate, and it becomes necessary to sell the real estate for the purpose of paying them, it is his duty to do so.</p>

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

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

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

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

<p>Will. — Construction of. — Apparent Mistake. — Extrinsic Evidence. — Where one item of a will devised the house and lot on which the testator resided “being parts of lots number fifteen and sixteen,” etc., to his wife during her natural life, and a subsequent item of the will devised “ the same lot number fifteen so devised to my said wife during her lifetime ” to the testator’s youngest daughter, and “ to her heirs in fee simple forever,” there is such a mistake apparent on the face of the will as will permit the introduction of extrinsic evidence to show that the testator intended to devise the same property to his daughter in fee that he had in the previous item of the will devised to his wife for life.</p> <p>Same. — Admission of Evidence Explaining. — Partial Intestacy to he Avoided, —Where a will itself discloses the fact that there was a mistake in drafting the instrument, or there are sufficient indications of a latent ambiguity, it is not error to allow extrinsic evidence to be introduced for the purpose of explaining and arriving at the intention of the testator. A will is not to be so construed as to create a partial intestacy where the result can be reasonably avoided.</p>

<p>Railroad. — Personal Injuries. — Complaint.—Averment as lo Contributory Negligence. — Motion to Make More Specific. — In an action against a railroad company to recover damages for a personal injury, a general aver- ’ ment that the injury happened without the fault or negligence of the plaintiff is sufficient. It is not necessary to set out affirmatively all the precautions taken to avoid the injury. If a more particular and definite statement of the facts was desired, the remedy was hy motion to make the complaint more specific. For review of the evidence see close of the opinion.</p> <p>Same. — Rale of Speed. — Violation of City Ordinance. — Negligence per se. — It is negligence per se to run a train of cars in violation of a city ordinance, and if any one is injured in consequence of such negligence without being himself guilty of contributory negligence, he may recover damages for such injury.</p> <p>Same. — Instructions to Jury. — Injury at Grossing. — Care lo be Exercised by Plaintiff. — In an action against a railroad company to recover damages for a personal injury, the defendant cannot successfully complain of an instruction which informed the jury that “ if safety under the circumstances required that he (plaintiff) should stop his horse to ascertain whether it was safe to cross the track or not, it was his duty to stop and look and listen, and if, failing in this, he was caught by the engine and injured, he can not recover.”</p> <p>Same. — An instruction in such an action that the plaintiff could not recover if “ at the time of and just preceding the injury he could, by looking in the proper direction, have seen the train coming towards him in time to have avoided the injury,” although no warning was given of its approach, and although the train was running in violation of a city ordinance, is not objectionable because of the omission of the element of listening, the same having been fully treated of in other instructions.</p> <p>Instructions to Jury. — Omission of Statement of Fact. — When instructions are given to the jury applicable to the law of the case they are not objectionable because they do not state any facts, nor advise the jury what the plaintiff should have done under the circumstances to have shown him to be in the exercise of due care.</p> <p>Municipal Corporation. — Incorporation of. — Judicial Notice Taken of.— Judicial notice will be taken by the courts that a city is incorporated under the general laws of the State.</p> <p>Evidence. — Objection to. — Must be Specifically Stated. — Authentication of Ordinance. — An objection to the authentication or proof of an ordinance must be specifically pointed out. Questions will not be considered for the first time on appeal when the attention of the court below was not specifically called to the grounds of the objection.</p>

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

<p>Railroad. — Fellow-Servants.—“ Section Boss ” and Section Hand. — A member of one “ section gang ” is a fellow-servant of the boss of another “section gang” employed by the same railroad company, they being engaged in the same general service and in the same line of duty, and he can not recover for an injury occasioned by the negligent running of . the hand-car, in charge of said boss, into the hand-car on which the plaintiff was riding.</p> <p>Negligence. — Contributory.—Action Under Apprehension of Sudden Danger. —One who does an act under an impulse, or upon a belief created by a sudden danger, attributable to another’s negligence, is not to be regarded as guilty of contributory fault, even though the act be regarded as a negligent one, if performed under circumstances not indicating sudden peril.</p>

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

<p>Real Estate — Conveyance of.— Want of Consideration. — Parol Evidence Admissible. — When there is fraud or mistake in executing or securing, the execution of a conveyance, for which no consideration is paid, parol evidence is admissible.</p> <p>Evidence.— When Admissible to Show Fraud or Mistake. — When the defendant answered by general denial, and also filed a cross-complaint, there was an issue formed under which evidence tending to prove fraud and mistake was admissible.</p>

<p>Taxation. — Special School Tax. — Board of School Trustees of Oily Has Power to Make Levy Independently of Oommissioners. — Duty of Auditor to Make and Extend the Assessment. — A board of school trustees, for the purpose of creating a special school revenue in accordance with section 4467, R. S. 1881, levied a special school tax of 40 cents on each $100 of taxable property in the city and 50 cents on each poll. The special levy was duly certified to the auditor of the county with the request that he make the proper assessment of the special school tax as levied by the board of trustees, and extend the same upon the tax duplicate; but the auditor, under the direction of the board of commissioners, failed and refused to extend the assessment on the tax duplicate, and modified the levy made by the board of school trustees.</p> <p>Meld, that section 4467, R. S. 1881, authorizes a board of school trustees of a city to levy the tax independently of the board of commissioners, and when made it is the duty of the auditor to make the assessment, and extend the same on the tax duplicate.</p>

<p>Appeal. — In Term.— When Irregularities will not Invalidate. — Supreme Court. —Notice.—When an appeal bond is filed and approved in open court at the same term that the motion for a new trial was overruled, and within a reasonable time after the prayer for an appeal, an irregularity,such as the failure to name the sureties on the bond at the. time of praying the appeal, will not invalidate' the appeal. The appeal having been taken in term, notice was not required.</p> <p>Evidence. — Value of Life-Estate. — Non-Expert Witness. — A witness is not-competent to testify as to how much a- person’s life-estate would be-worth at sheriff’s sale, considering his age and physical condition, when he is not shown to have the slightest knowledge of the matter upon which he necessarily gave an opinion in answering the question, viz.: the effect of the person’s physical condition upon his expectancy of life..</p>

<p>Trust and Trustee.- — Husband and Wife.— When Husband will be Deemed to Hold in Trust for Wife. — Real Estate. — Adverse Possession. — Statute of Limitations. — When a father, in consideration of natural love and affection, agreed to convey to his married daughter a certain tract of land, but before the conveyance was made it was mutually agreed between the father, the daughter and a brother of the daughter, who held a tract of land which he desired to exchange for the first named tract, that the father should convey said tract to the brother of appellee, and in return therefor the brother should convey his tract of land to appellee; that the land, as per agreement, was conveyed by the father to the brother of appellee, and that appellee entrusted the conveyance of the land, to be made to her by her brother, in the hands of her husband as her agent; that instead of making the conveyance to her the husband fraudulently took the conveyance in his own name, and concealed the fact from appellee, and such fact did not come to her knowledge until after the death of her husband, who died intestate.</p> <p>Held, that such action by the husband was a gross fraud upon the rights of the wife, and that equity will hold the husband to be the trustee of the wife, and that the property so held in trust is not subject to the debts of the husband.</p> <p>Held, also, that the question as to whether the wife did or did not have adverse possession of the land was wholly immaterial, the evidence and the special findings showing that the husband fully recognized the right of the wife up to the time of his death.</p> <p>Held, also, that the statute of limitations would not commence to run until the husband disowned his trust.</p>

<p>Cities and Towns. — Power to Issue Bonds. — A town can not, under the Constitution of this State, issue bonds to obtain funds with which to rebuild a school-house, when the issuance of the bonds will create a debt in excess of two per centum of the taxable value of the property within the corporate limits of the town.</p> <p>Same. — Enjoining Issuance of Bond. — A taxpayer may maintain an injunction to prevent the issuance of corporate bonds without authority.</p>

<p>Ckimihal Law. — Seduction.—Evidence.—Sufficiency of to Warrant a Conviction.. — In a criminal action for seduction, the only evidence introduced to corroborate the testimony of the prosecutrix was the testimony given by Charles Simon, of a conversation with the appellant, in which the appellant said: “ That Ella was a good girl, and he expected to make her Mrs. La Eosae.”</p> <p>Held, that the evidence of the prosecutrix was not sufficiently corroborated to authorize a conviction under section 1807, E. S. 1881.</p>

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

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

<p>Change of Venue. — Collateral Attack on Judgment for Refusal to Grant. — A judgment can not be successfully attacked collaterally for a wrongful refusal to grant a change of venue. The judgment is not void.</p> <p>Habeas Corpus. — Review of Magistrate’s Decision Molding Prisoner in Custody. — If the committing magistrate has jurisdiction to order a person accused of crime into custody, a writ of habeas corpus will not issue to secure his release.</p> <p>Same. — Collateral Attack on Justice’s Judgment. — The judgment of a justice of the peace holding a prisoner in custody for trial can not he assailed upon a petition for a writ of habeas corpus. Smelzer v. Lockhart, 97 Ind. 315, overruled.</p>

<p>Criminal Law. — Alibi.—Instructions.—Reasonable Doubt of Accused’s Presence at Place of Crime at a Particular Time. — In a prosecution for larceny, where the prosecuting witness has testified that the property was stolen on a certain night, it is not error to refuse an instruction to the effect that if the jury have a reasonable doubt, from the evidence, whether or not the accused was at the place of the crime on such night they must acquit.</p> <p>Same. — Defining Alibi. — It is not error to refuse to give the jury a definition of “ alibi.”</p> <p>Same. — Jury Considering, Instructions. — Other Crimes. — In determining a defendant’s guilt or innocence, the jury can not consider the commission of other crimes by him; but it is not error to refuse to instruct the jury that they should not consider any act of the accused, which he has testified to, and which they believe to be wrong.</p> <p>Same. — Reputation of Accused for Veracity. — Neighborhood Reports. —If a man’s neighbors generally say nothing about his truthfulness that fact. of itself may be evidence that his general reputation for truth is good; and whether or not he has such a reputation is a question for the jury.</p>

<p>Appeal. — Questions Arising on Trial. — How Presented. — Questions arising on the trial, and not on the pleadings, must, on appeal, be presented by a bill of exceptions.</p> <p>Bill of Exceptions. — Stenographer’s Report. — How Made a Part of the Record. — When a stenographer’s report is brought into the transcript by the clerk it is not a bill of exceptions. Such a report, to be a part of the record, must be properly embodied in a bill of exceptions.</p>

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

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

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

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

<p>Divorce. — Effect of Decree on Wife’s Eight to Husband’s Seal Estate. — Third Parties. — A decree in divorce settles all property rights between husband and wife, but not between her and third parties.</p> <p>Same. — Conveyance by Wife under Coercion or Ignorance. — Suit after Divorce to Set Aside. — In 1883 a wife through coercion and under mistake joined in the execution of a deed conveying certain real estate of her own, and thereafter continued to live with him without fear or constraint, until 1887, when she obtained a divorce from him for cruelty. During the period between the date of the conveyance and date of the divorce, she lived and cohabited with her husband without fear or constraint, and had by him two children, but never made any complaint or inquiry concerning the deed until after the trial of the divorce case. In the divorce case the husband filed an answer alleging that she had received ■ from him certain real estate and personal property which was to be in full of all interest and claim she had in all property then or thereafter owned by both of them, and in full of alimony. After the divorce the grantee of the lands conveyed them to the husband, and she then brought suit to quiet title thereto and to cancel the deed.</p> <p>Held, that she could maintain the action.</p> <p>Held, that the facts stated did not show a ratification.</p> <p>Held, that she was not bound to bring an action to quiet title and to cancel the deed while she was cohabiting with her husband.</p> <p>Held, also, that the answer in the divorce case did not raise an issue; that the parties had no power to make a valid contract concerning alimony, and that she was not bound by the decree so far as the land in controversy was concerned.</p> <p>Same. — Contract Concerning Alimony. — Husband and wife have no power to enter into a contract concerning alimony in a prospective divorce proceeding.</p>

<p>Adoption. — Husband and Wife Jointly Adopting. — Husband and wife may jointly adopt a child.</p> <p>Same. — Foreign Adoption. — Filing Record in this State. — By filing in the courts of this State a certified copy of the adoption of a child in another State, the child is not thereby re-adopted; and the child, without the presence or consent of the adopting husband and wife, may cause a record thereof to be made in any court of this State.</p> <p>Same. — Effect of Filing Record. — The effect of filing a certified copy of the record of the adoption of a child in another State simply enables the adopted child to enforce such rights as arise out of the original adoption ; and until there has been such a compliance with the statute the courts of this State will not recognize or enforce those rights.</p> <p>Same. — Adult.—Adoption of. — There is nothing to prevent the adoption of an adult.</p> <p>Same. — Child Adopted by Husband and Former Wife. — Right of Childless Widow of Second Marriage as Against Such Child. — A child jointly adopted during a former marriage by husband and wife, takes a fee simple in the real estate of the husband, subject to the life-estate of the childless widow by a second or other marriage, owned by the adopting father at any time during such subsequent marriage in the conveyance of which she has not joined with him. Odds, J., and Coffey, J., dissent.</p> <p>Descent. — Rights of Childless Widow by Second Marriage. — Life Estate. — A childless widow by a second marriage, when children by a former marriage survive her, takes only a life-estate from her husband, and not a fee simple.</p>

<p>Decedents’ Estates.&emdash;Heal Estate by First Marriage.&emdash;Children Surviving. &emdash;Not Subject to Debts Contracted During Second Marriage.&emdash;Where a widow re-marries, holding real estate by virtue of her previous marriage, and there are children alive by such first marriage, such real estate can not, after her death, be sold by her administrator to make assets for the payment of debts contracted during her second marriage.</p>

<p>Peactice. — Motion to Separate Causes of Action. — Demurrer for Misjoinder of Causes. — A complaint was filed containing two paragraphs, the first charging the fraudulent taking of plaintiff’s money and property and appropriating the same to the purchase of real estate, and taking the title to the same in the name of the defendant’s wife, and praying for a judgment and that a lien be declared on the real estate; the second paragraph/asked' for a judgment for the money so appropriated. A motion was made to require the causes of action to be separated, which was overruled. A demurrer to the complaint on the ground of a misjoinder of causes of action was overruled.</p> <p>Held, that the rulings of the court were harmless, and constituted no reversible error.</p> <p>Same. — Judgment.—Evidence Supporting. — Where there is evidence tending to support the finding, the judgment will not be reversed.</p> <p>Same. — Evidence.—Harmless Error. — If evidence is erroneously admitted, and it works no harm to the adverse party, it will not be a cause for reversal.</p> <p>Same. — Evidence.—RebvMal.— What Competent. — Where the defendants testified in relation to their property, it was not error to allow evidence tO' be introduced concerning an inventory of his property filed by one of the defendants asking exemption from sale on execution, also concerning a mortgage executed by defendants.</p> <p>Same. — Parol Evidence. — Contents of Record. — Where one testified to having, a mortgage, that he commenced foreclosure proceedings, and that he afterwards took a conveyance of the mortgaged property, paying a difference of sixty dollars to the mortgagors, it was not error to admit, such evidence, as it was not proof of the contents of the record.</p>

<p>Criminal Law. — Trial by Less than Twelve Jurors. — Affidavit.—Bill of Exceptions. — In a prosecution for a criminal offence, where it was alleged as a ground for a new trial that during the progress of the cause two of the twelve jurors selected by the parties were discharged by the court by reason of illness, and that the verdict was rendered by the remaining ten jurors, and there was what purported to be an affidavit in support of the charge, but no reference was made to the same in the motion for a new trial, and it was not embraced in the bill of exceptions, the question is not properly presented on appeal.</p>

<p>Criminal Law. — Prosecution for Murder. — Administration of Poison. — JDeclarations of Decedent. — Bes Gestee. — Where the defendant was indicted for murder, for administering poison in liquor to the deceased, it was proper on the trial of the charge to admit in evidence complaints of the deceased made shortly after taking the liquor that it was bitter, and aceusing the defendant of having put quinine in it, the complaints having been made while the defendant was within hearing, and there being evidence that he heard the same, although he denied hearing them.</p> <p>Same. — Declarations of Deceased After Ocmrrence. — Inadmissibility' of. — Declarations made by the deceased to his wife, in the absence of the appellant and some time after the occurrence, to the effect that the appellant had invited him to take a drink of blackberry wine, and that it was very bitter, etc., were not admissible in evidence. They were so separated from the act as to be merely narrative of what had occurred, and did not constitute a part of the res gestee.</p> <p>Same. — Dying Declarations. — Such declarations or facts stated by the deceased, which he would be permitted to testify to if a witness, are admissible as dying declarations, the conditions existing which permitted of the introduction of his dying declarations in evidence.</p> <p>Same. — Deputation of Defendant for Peace and Quietude.— Use of Word “ Inoffensive”. — Evidence of the general reputation of the accused for peace and quietude is admissible in a prosecution for murder, though the murder may have been committed by poisoning. The use of the word “inoffensive” as well as the words “peace” and “quietude” in interrogating the witness was not objectionable.</p> <p>Same. — Evidence.—It was not error to refuse to permit the defendant to prove that he had drank liquor with the deceased out of a bottle marked “ poison,” taken from the barn, and that the deceased said at the time that he marked the bottle and put whisky in it, and put it in the barn in order that his hired men would not know where it was, and in order that the women folks would not “ catch on” to it, and to prove that he had other bottles at the same place, it not appearing when this occurred nor that at the time of the taking of the drink and death of the-deceased he kept bottles in such manner at the barn, and from which he might have drank by mistake.</p> <p>Same. — Suicidal Tendency of Deceased — Facts not Tending to Prove. — It was not proper for the defendant to offer in evidence isolated facts as to the financial condition or domestic troubles of the deceased which would not show any suicidal tendencies on his part.</p> <p>Same. — Gounsel to Assist Prosecution. — Appointment of in Absence of Defendant. — The court may appoint counsel to assist in the prosecution of a felony in the absence of the defendant, this being no part of the trial.</p>

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

<p>Mechanic’s Lien. — Action to Foreclose.— What Notice Must Contain.— Notice to Owner Must he Proved. — Averment as to Notice in Complaint.— Where material is furnished to a contractor, the notice of an intention to acquire a mechanic’s lien, given under section 1690, Elliott’s Supp. (Acts 1883, p. 141), need not contain a recital showing that notice had also been given to the. owner in accordance with section 5 of said act. In an action to foreclose the lien, however, it must be averred in the complaint and proved on the trial that such notice was given.</p> <p>Same — Notice With Endorsement. — Admissible in Evidence. — It was not error to admit in evidence the original notice with the endorsement made upon it by the recorder, showing that it was filed with him for record, and the time of such filing.</p> <p>Same. — Recording of Notice in Wrong Record. — Evidence.—Harmless Error.— While the notice of an intention to acquire a mechanic’s lien is required to be recorded in the “ Miscellaneous Record,” and it was erroneous to admit in evidence an entry in what was denominated the“ Mechanic’s Lien Record ” of the county, showing the record of the notice, still it was harmless error, as the controversy being between the immediate parties, and no question as to innocent third parlies being involved, the lien was acquired by the filing of the notice and was not affected by the failure of the recorder to record it in the “ Miscellaneous Record,” or by his mistake in recording it in the “ Mechanic’s Lien Record,” a record not known to the law.</p>

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

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

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

<p>Evidence. — Advancements.—Declarations of Decedent. — Res Gestee. — Partition. — In an action for partition where pleadings were filed which presented the question for decision whether some of the heirs of the decedent had not received property from him as an advancement, declarations of the deceased, made several years after the transaction, as to the terms upon which the money and property were turned over to his children were too remote in point of time to he admitted in evidence as part of the res gestee.</p> <p>Same. — Declarations Against Interest of Party Mahing. — Such declarations were not admissible in evidence either upon the ground that they were declarations against the interest of the parly by whom they were made, inasmuch as so far as the interest of the decedent was concerned it was immaterial whether the transfer of the money and property was by way of gift or advancement.</p> <p>Same. — Exclusion of Period of Remoteness. — Evidence that the decedent had purchased the land in controversy with money received from his first wife, the mother of the heirs, was properly excluded in view of the remoteness as to time, and its indirection as to the main question.</p> <p>Same. — Conversation with Decedent. — Party Testifying Against Herself. — Remedy of Other Parties. — A party to an action being competent to testify against herself, although her testimony embraced conversations with a person since deceased, the other parties to the action can not complain when they failed to ask, as was their right to do, to have a specific and clear instruction directing the jury that such testimony was not competent against them.</p>

<p>Fraudulent Conveyance.— Volunteer. — Fraudulent Intent of Grantor.-— Notice of to Grantee Unnecessary. — It is not necessary for the purpose of setting aside a fraudulent conveyance to a volunteer, who paid no consideration, to allege and prove notice to the grantee of the fraudulent intent of the grantor.</p> <p>Same. — Complaint.—Averment of Grantor’s Insolvency. — Sufficiency of. — The averment in the complaint that the grantor did not have at the time of the conveyance, nor has he had since, or at the time of the commencement of the action, sufficient property subject to execution to pay his debts, is a sufficient allegation as to his insolvency during that time.</p>

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

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

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

<p>Drainage. — Repair of Ditch. — Performance of Work. — Surveyors Authority Concerning. — Where a surveyor is acting within the scope of his authority in repairing a ditch, the question as to whether he adopted the best or cheapest plan for its performance is not open to inquiry. The fact that the workmen were paid by the day — no fraud or collusion being claimed — and that no competition was invited, does not furnish an excuse to the land-owner for a refusal to reimburse the county for the expense of such work.</p> <p>Same. — Obstruction of Ditch by Others.— When no Defence to Payment of Assessments. — Upon appeal to the circuit court from assessments levied by a county surveyor for the repair of a ditch, the appellants can not escape liability on the ground that a large part of the obstruction which rendered the cleaning of the ditch necessary was occasioned by the cattle of some of the other land-owners obstructing the ditch, and that no additional assessment had been levied against such land-owners where they made no effort to prove the amount of additional cost in removing such obstructions. In the absence of such proof the presumption is that the additional cost was merely nominal.</p> <p>Same. — Surveyor Exceeding His Authority. — Effect on Payment of Assessments. —The fact that a county surveyor exceeded his authority in repairing a ditch will not relieve the land-owners from paying for benefits received by the doing of such work as was within the jurisdiction of the surveyor, and where the assessments levied fall short of the amount paid for the repairs by the county, the Supreme Court will presume, in the absence of evidence to the contrary, and in favor of the findings of the lower court that the appellants’ lands were not assessed for more than their just proportion of legitimate cost for repairing the ditch.</p> <p>Same — Lands not Liable for Repairs. — Where lands are not assessed for the construction of a ditch, they oan not be assessed for its repair. Elliott’s Supp., section 1193.</p>

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

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

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

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

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

<p>Decedents’ Estates. — Action for Widow’s Statutory Allowance. — Answer of Adultery and Champerty. — Sufficiency of Answer. — Where an action is-brought by a widow against the executor of her deceased husband to compel him to pay her $500, as provided by law, out of the assets of the estate, and there is an answer in bar alleging that the plaintiff bad lived separate from her husband and in adultery, but failing to allege that she had either left her husband or was living in adultery at the time of his death, and that the plaintiff had no interest in the prosecution of the claim, and was only suffering her name to be used in the interest of her counsel, who were to receive one-half of all the money recovered in her name, and that her brother, by previous arrangement, was to receive the other half, is bad. Even if she had made a champertous agreement she would not be bound by it, and might ignore it.</p>

<p>Judgment. — Assumption of Mortgage Indebtedness. — Sufficiency of Gross-Complaint. — Where in a suit to foreclose the lien of certain ditch taxes, certain of the defendants appeared and filed a cross-complaint against the plaintiff and two of their co-defendants on certain notes secured by mortgage and recovered judgment by default against one of the defendants to the cross-complaint, on the ground that he had assumed to pay the mortgage indebtedness as a part of the purchase-price of the real estate, the averments in the cross-complaint that said defendant purchased the mortgaged property, agreeing to assume the indebted- >- ness thereon as part of the purchase-price, and that he had failed to pay any part thereof, was sufficient to authorize the rendition of a personal judgment against him.</p> <p>Same. — Default.—Relief Against. — Inadvertence and Excusable Neglect. — Insufficiency of Showing. — In an action by said defendant to be relieved from said judgment, on the ground that it had been taken against him through his mistake, inadvertence and excusable neglect, the fact that the process served in the action was not distinctly read to him, and that he was told by the sheriff, and by his attorneys, that he need not appear, when he furnished no excuse for not reading the process himself, and did not show that his attorneys had been informed of the facts of the case, would not entitle him to such relief.</p> <p>Statute oe Fbauds. — Oral Assumption of Mortgage Indebtedness. — An agreement to assume the payment of a mortgage indebtedness on real estate, as part of the purchase-price thereof, is not within the statute of frauds.</p>

<p>Trust and Trustee. — Special Finding. — Fraud.—Recovery.—In an action against a trustee’s administrator for a conversion of money by the decedent,where there is a special finding of the court, but such special finding does not show that there was any actual fraud on the part of the trustee, the case must be treated as one into which no element of fraud enters. Where fraud is essential to a recovery, it must be found as an ultimate or inferential fact.</p> <p>Same. — Statute of Limitations. — Exceptions to. — The rule that the statute of limitations is a bar to suits in equity as well as actions at law has its exceptions in direct trusts, and technical and continuing trusts, which are creatures of, and fall within the exclusive jurisdiction of chancery.</p> <p>Same. — Statute of Limitations.' — Declarations.—Estoppel.—Mere declarations of the trustee that he had so arranged matters that appellant would get his money will not, in the absence of fraud, operate by way of estoppel to preclude the appellee from setting up the statute of limitations.</p> <p>Special Findings —Must State Facts not Evidence. — In a special finding, mere statements of matter of evidence are out of place and can not be considered in this court. It is the duty of the trial court to determine what the evidence proves and state its judgment or conclusions as to the fact.</p> <p>Statute oe Limitations. — Continuing Trust. — Demand.— When Necessary.— The statute of limitations does not run until a cause of action accrues, and where there is a continuing trust, or where the contract is a continuing one and of such a character as to make a demand necessary to a complete cause of action, the statute does not begin to run until a demand has been made.</p>

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

<p>Apportionment Act. — Fictitious Suit. — Collusion.—Motion to Dismiss. — An action was brought questioning the validity of two acts of the Legislature and to enjoin the officers of the county from acting under them, and to compel them to proceed under an earlier act of the Legislature relating to the same subject.</p> <p>Held, that the action was properly brought against the officers named, and the fact that such officers, relator, and attorneys all entertain the same opinion of the laws in question, or are otherwise agreed, is immaterial.</p> <p>Held, also, that when the Attorney General moved to dismiss the appeal on the ground that the suit was fictitious and collusive, and all the par. ties to the original litigation file affidavits and answers denying collusion, and asserting that the controversy is real, and there is nothing in the record or in the showing made by the Attorney General sufficient to authorize a dismissal, the motion could not be entertained.</p> <p>Practice. — Admitting New Parties. — When it is shown that the determination of a cause may seriously affect the rights of those not parties, it is proper, on a sufficient showing, to permit them to intervene and present their side of the controversy.</p> <p>Same. — Action Affecting the Public. — Calling in Attorney Ceneral. — When the adjudication sought is such as will affect the general public, it is the duty of the court to take such additional steps as may be necessary to a full presentation of the questions involved, as, for example, calling in the Attorney General.</p> <p>Constitutional Law. — Motives of Legislature. — In a proper case, the court can determine whether a statute is constitutional or unconstitutional, but it can not judge as to the motives of the Legislature in its enactment.</p> <p>Appeals. — Filing Transcripts. — Order of. — Advancement.—Appeals must be docketed and heard in the order in which the transcripts are filed, but the court may, in cases involving important public interests, direct otherwise and advance the hearing of the cause, but a party is not entitled to such advancement as a matter of right.</p>

<p>Bill of Exceptions. — Averments in Evidence. — A statement in a bill of exceptions that certain testimony was offered in evidence does not make the testimony a part of the record, and is not equivalent to the averment that such testimony was given.</p> <p>Judgment. — Defendant Entitled to on General Denial. — Where there was no evidence introduced entitling the plaintiff to recover, the defendant is entitled to a finding and judgment on the issue joined by his answer in general denial, and it matters not whether the evidence supports his affirmative answers or not.</p>

<p>Highways. — Establishment of. — Special Assessment. — Notice.—In proceedings to establish a public road, where an adjacent owner’s land is sought to be subjected to a special assessment, notice is essential to confer jurisdiction.</p> <p>Judicial Proceedings. — Void.— Validating Statute Invalid. — Where judicial proceedings are void because of an entire absence of notice to a property owner, a subsequent statute assuming to validate such proceedings is invalid.</p>

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

<p>From the De Kalb Circuit Court.</p>

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

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

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

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

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

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

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

<p>Equity. — Action for Cancellation of Conveyance. — Trial by Jwy. — An action to have certain conveyances cancelled and the title revested in the grantor on the ground that at the date of their execution the grantor was of unsound mind and that the conveyances were procured by fraud and without consideration would, prior to the 18th day of June, 1852, have fallen within the exclusive jurisdiction of a court of equity, and it was not error to refuse to grant a trial by a jury. Section 1064, R. S. 1881.</p> <p>Same. — Decree Affecting Lands Outside of State. — In an equitable action, the court having jurisdiction of the person is able, by process against the defendants in personam, to enforce its decree affecting' land without, as well as within the State.</p> <p>Pleading. — Sow to be Construed. — The nature of an action must be determined from the general character and scope of the pleading, disregarding isolated and detached allegations not essential to the support of its main theory, and must he construed as proceeding upon the theory which is most apparent and most clearly outlined by the facts stated. Such a construction should be given as will give full force and effect to all of its material allegations and as will afford the pleader full relief for all injuries stated in his pleading.</p>

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

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

<p>Mortgage. — Action to Foredose by Junior Mortgagee. — Senior Mortgagee Made Party. — When not Barred by Judgment. — “Where the holder of a senior mortgage was made a party defendant to an action brought by a junior mortgagee to foreclose his mortgage, and the complaint only called in question such liens as had accrued since the mortgage in suit was executed, the judgment therein that the mortgage sued on was the prior lien on the premises would not bar the'right of the senior mortgagee, who simply filed a general denial and allowed judgment to be taken against him by default,to have his mortgage subsequently foreclosed.</p> <p>Same.— When Senior Mortgagee Barred by Judgment. — Where the holder of a junior mortgage instituted an action to foreclose the same and made a senior mortgagee a party defendant to the action, and the complaint alleged that the several defendants had or claimed to have some interest in or lien upon said mortgaged premises, “ hut if any such interest, lien or claim exists in behalf of them, or either or any of them, it is junior and subordinate to the lien of said mortgage,” and the senior mortgagee failed to plead his prior mortgage, and the mortgage sued on was held to be senior to any lien held by any of the defendants, the judgment estopped the senior mortgagee from subsequently asserting his right under his mortgage.</p> <p>Same.— When Equity Will not B,elieve Against Judgment. — W’here in the latter case the counsel for the senior mortgagee were informed by a clerk in the office of plaintiff’s attorney that he was made a party to the foreclosure suit in order to bar his equity of redemption under a judgment for costs he held, and for no other purpose, the appellant had no right to rely upon such statement as against the allegations in the complaint against him and the facts do not make a case calling for the exercise of the inherent power of a court of equity to set aside a judgment obtained by fraud or rendered through the mistake of the court. Such power will only be exercised when the party asking it is without fault, and where he proceeds without unreasonable delay after discovery of the fraud or mistake.</p>

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

<p>Common Carrier. — Overcharge of Freight.— Voluntary Payment. — The payment of an overcharge of freight to a railroad company engaged as a common carrier of goods is not a voluntary payment within the ordinary meaning of that term, and a shipper has the right to sue upon his contract and recover back the excess of freight paid over the contract rate.</p> <p>Same. — Complaint.—Averment as to Payment of Excess. — Where in an action to recover excess of freight the complaint charged that the excess so charged and received by the defendant was $2,800, but it did not appear by affirmative allegation that it was paid by the plaintiffs, the inference will be indulged that it was, as they were the shippers, and the complaint will be good as against a demurrer.</p> <p>Same.— Unjust Discrimination Against Shipper. — Instruction to Jury. — In such an action, where the evidence showed that for some years prior to the 1st of January, 1887, the plaintiffs and several other parties had been engaged in the business of purchasing and shipping railroad tics over the defendant’s road from the stations named in the complaint to the city of Evansville, and that prior to that date a uniform rate of freight per car load of two hundred ties was charged, and that after that date the defendant raised the freight rate ten dollars per car on all shippers except one D., an instruction was proper which informed thé jury that if during .several months of the year 1887 the plaintiffs shipped a large number of cross-ties in the usual manner over the defendant’s road, and during the same time D. shipped a greater number of car-loads under special contract, which, in addition to the contract of assignment contained other stipulations of advantage to the defendant, the natural and necessary effect of the transaction, considered in detail and altogether, was a substantial discrimination in favor of D., against the plaintiffs, whereby the plaintiffs were made to pay the defendant many hundred dollars in excess of that paid by D. for similar services, and in excess of the value of all that was done or furnished or to be done or furnished by him under the special contract, and the plaintiffs, upon making a demand would be entitled to recover for the excess of freight so paid by them.</p> <p>Same.— When Might to Discriminate Inapplicable. — Where the ’commodity shipped for D. and the commodity shipped for the plaintiffs was the same, and all was shipped in full car-loads and from the same stations, the rule does not apply which permits a carrier to discriminate in favor of a shipper who transports large quantities of a given commodity in one parcel at a time as against a shipper who transports the same com-modify in small quantities in broken packages. Neither does the rule apply which permits the common carrier to discriminate in favor of one class of goods over others of a different class.</p> <p>Same. — Shipment of Larger Number of Car-Loads. — No Basis for Discriminention. — The fact that D. was able to furnish a larger number of car-loads of ties than the plaintiffs would not justify a discrimination in his favor over the rates charged to the plaintiff. As to whether the fact that D. agreed to furnish the defendant such ties as it desired for its own use at a given price relieved the discrimination of its objectionable feature, by which it became a reasonable discrimination, was a question of fact which was properly submitted to the jury for its determination.</p> <p>Same. — Establishment of Discriminating Bates for Badlroad’s Advantage. — A carrier can not rightfully establish rates in order to keep on the line material for which it has use, or to keep the price low for its own advantage, producers being entitled to sell where they wish and in the most available market.</p> <p>Same.— When DiscHmination Unjust. — -Consideration.—If the contract was of such a character as to destroy the business of the plaintiffs by reason of the discrimination in favor of D., and thus enable D. to acquire a monopoly of the business of purchasing and shipping cross-ties over defendant’s road, the discrimination was unjust without regard to the consideration upon which it was based.</p> <p>Same. — Instruction to Jmy. — An instruction was properly refused which excluded from the consideration of the jury the question as to whether there had been an unjust discrimination made by the defendant in favor of D., whereby the plaintiff had been damaged.</p>

<p>Mechanic’s Lien. — Failure to Give Notice to Owner. — Special Finding of Facts. — In an action by a material man to foreclose a mechanic’s lien, the materials having been furnished at a time when it was necessary to give notice to the owner in order to acquire a lien, the burden was on the plaintiff to establish the fact of notice, and the failure of the court in its special finding of facts to find upon that point was equivalent to a finding against the plaintiff.</p> <p>Same. — When the court, instead of finding that either notice was or was not given, made a finding containing recitals of a portion of the evidence, with certain evidentiary facts, all bearing upon the question of notice, but made no finding whatever as to the fact itself, the finding must be regarded as against the plaintiff upon that subject.</p> <p>Same. — Practice.—Special Finding not Sustained by Sufficient Fhidence. — In order to present the question raised hy the failure of the court to find on the fact of the notice, it was proper for the appellant to move for a new trial on the ground that the special finding was not sustained by sufficient evidence and was contrary to the evidence.</p>

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

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

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

<p>Statute of Limitations. — Possession under Void Peed. — Color of Title.— Coverture. — Possession under a void deed is sufficient to give color of title, as against the grantors, and to set in motion the statute of limitations, and the coverture of the appellant, who was the grantor, does not affect the question.</p> <p>Same. — Quieting Title. — An action to quiet title to land is governed by section 294, R. S. 1881, and must be brought within fifteen years.</p>

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

<p>Pleading. — Action on Written Instrument. — Failure to File Exhibit. — Demurrer. — The statute which requires a copy of the original of an instrument of writing upon which a pleading is founded to be filed with the pleading, is imperative; and where the pleading avers that a copy is filed, but no copy is found in the record, the pleading is bad on demurrer.</p>

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

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

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

<p>Board op Guardians. — Decree Committing Children to Custody of. — Petition to Set Aside.- — Insufficiency of. — Where, by decree of court, the custody of children was taken from the parents and committed to a “ Board of Children’s Guardians,” the decree will not be set aside upon a petition of the parents, which alleged that the children were not at any timé neglected, abandoned or .cruelly treated or subjected to vicious influences ; that the mother of the children was so distracted in mind and so crazed with grief over her children being taken from her that she was at the time incapable of comprehending or doing anything; and that the petitioners were able and willing to take care of the children, and to make reasonable provision for their physical comfort and welfare and to give them a good education. A judgment that has all the attributes of a valid judgment imports absolute verity, and can not be successfully avoided by allegations which simply contradict it. Under such an attack it must be conclusively presumed that there was evidence fully justifying the judgment of the court of original jurisdiction.</p> <p>Same — Constitutionality of Statute Establishing. — The statute of this State which provides that children may be taken from the custody of parents whose course of life or whose evil conduct unfits them to rear children, and be committed to the custody of a “ Board of Children’s Guardians ” is constitutional. The interests and rights of the parents are guarded in said statute by the requirement that their children shall not be taken from them without a hearing upon due notice in the i mrts of the State.. There is neither denial nor abridgment of eonstitutk ial rights.</p> <p>Judgment. — Impeachment of. — Mental Incapacity of Par i.— What Must be Alleged. — One who seeks to impeach a judgment upon the ground of mental incapacity must directly state material facts, showing the existence of such mental incapacity at the date of the rendition of the-judgment.</p> <p>Pbactice. — Answers to Interrogatories.— When Party May Not Compel.— Where a petitioner has no cause of action he has no right to compel answers to interrogatories.</p>

<p>Decedents’ Estates. — Land Held in Trust for First Wife. — Action by Second Wife. — Purchaser forValue. — In an action by the second wife of deceased and his only heir by her against the heirs of the deceased by his first wife concerning a certain tract of land which was claimed by the heirs of the first wife to have been held in trust for their mother, and that it descended wholly to them, the following facts appeared in the evidence: In 1837 the father of E. F., decedent’s first wife, left the State of Ohio and entered land in Huntington county. Prior to leaving there was some talk between B. and his daughter and son-in-law about entering a certain tract of land for her, adjoining certain land which her husband expected to enter on his own account. B. entered several tracts of land, and I. F., the husband of E. F., entered and paid for eighty acres with his own money. Another eighty acres was entered, B. furnishing $100, the amount necessary to make the entry; and the certificate for this entry was in the name of I. F., but was given to B. After-wards J. F. gave B. a receipt for the $100. Upon the execution of the certificate for the $100, the certificate of entry was given to I. F., who obtained title, improved and occupied the land until his death. B. sued I. F. and obtained judgment for the $100. Proof was made of statements made by I. F. to the effect that the land was bought for his first wife. I. F. executed mortgages on the land to secure the payment of his own obligations. B. stated in the presence of I. F. and his wife, without her objection, that the $100 was a loan to I. F. There was no evidence of fraud or bad faith on the part of I. F. The court below found against the heirs of the first wife.</p> <p>Held, that, on the evidence, the judgment of the court below can not be disturbed.</p> <p>Held, also, that the finding was correct for the reason that J. F., the second wife of I. F., as such was a purchaser for value, and that if there was a trust she had no notice of it.</p>

<p>Municipal Corporation. — Ordinance.— Use of Streets. — Grant to a Particular Company. — License.—An ordinance which specifically and by name grants to a company (in this instance a natural gas company) the right to use its streets, etc., for the purpose of laying its pipes, etc., simply grants a license or permission to the particular company to .use the streets for the purpose designated, and does not grant a special and exclusive franchise to the company to occupy and use the streets of the city for said pupose.</p> <p>Same. — Ordinance.—Talcing Effect in Future. — The fact that part of the provisions of an ordinance was not to take effect until a date designated in the future, would not affect either the validity of the entire ordinance nor of the particular provisions.</p> <p>Same. — Natural Gas. — Maximum Rate to be Charged. — City May Prescribe.— Under the act of March 7th, 1887 (Acts 1887, p. 36), municipal corporations have the authority to regulate the supply, distribution and consumption of natural gas, including the fixing of maximum rates to be charged therefor.</p> <p>Same. — Act of March 7th, 1887 (Acts 1887, p. S6), Construed. — Scope of.— Title of Act. — If the body of an act is ambiguous or doubtful, reference may be had to its title to aid in ascertaining the legislative intent. A reference to the title of the act above referred to shows that it was the purpose of the Legislature to empower a municipality with authority to do more than merely require the payment of a license fee by persons and corporations to whom it granted the privilege of using its streets and alleys for the distribution of natural gas therein. It was evidently the legislative purpose to confer upon the municipality the power to fix the maximum rate to be charged as a part of its power to regulate the supply, consumption and distribution of natural gas within its limits.</p> <p>Same. — Maximum Rates. — Right to Fix by Subsequent Ordinance. — Reserved Power of City. — Where the ordinance under which the plaintiff company was operating contained nothing whatever on the subject of rates, the city had the right to pass a subsequent ordinance fixing maximum rates to be charged consumers, which should apply as well to the plaintiff company as to others. The plaintiff company in accepting its franchise and in entering upon its work without exacting a stipulation reserving to itself the power to fix its own charges or otherwise contracting for a restraint of the powers of the city, acted in full view of the reserved power of the city, under the statute, to establish maximum charges by which it should be governed.</p> <p>Same. — Supplying Natural Qas a Public Work. — Delegation of Control Over to City. — The work of supplying natural gas to cities is a public one, for which property may be appropriated under the right of eminent domain. Property thus employed is devoted to a public use, and is subject to control and regulation by the State, and the State may delegate such control in whole or in part to municipal corporations in so far as relates to property thus devoted to such use'within their limits. The right of control thus possessed, and which may be so delegated, includes the power to fix reasonable maximum rates that may be charged by the holder of the franchise, unless the State or the municipality is restrained by some provision in the charter or grant of the license which amounts to a contract.</p> <p>Same. — Furnishing Qas to all Consumers. — Ordinance May Bequire. — A provision in an ordinance requiring any corporation, company, firm or individual accepting the provisions of the ordinance, to furnish gas to all consumers along the line of mains whenever applied for,is valid.</p> <p>Same. — Filing of Bond. — Subsequent Ordinance Bequiring. — Invalidity of as to Plaintiff Company. — Where the plaintiff company received its franchise under an ordinance which did not require the filing of a bond on its part, it could not be required to file a bond (the execution of the bond was of itself made a full acceptance of the new ordinance, with all of its requirements) in compliance with a provision to that effect contained in a later ordinance.</p> <p>Same. — Belief by Injunction. — Where the employees in charge of the work of the plaintiff company were arrested, prosecuted and fined for the refusal of the company to file such bond, and further prosecutions were threatened if the refusal was persisted in, the plaintiff company had the right to go into a court of equity and have the enforcement of the bond provision of the later ordinance against it stayed by injunction.</p> <p>Coffey, J., dissents to so much of the opinion as holds that the statute therein set out confers the right to regulate the price at which natural gas shall be furnished.</p>

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

<p>Evidence. — Report of Drainage Commissioners not Competent. — Error.—Reports of drainage commissioners are not competent evidence on an appeal from such assessments, and when proper objections are made and exceptions are taken, the admission of such evidence will constitute reversible error.</p> <p>Same. — Location of Ditch. — In Discretion of Commissioners. — Can not Review in Absence of Fraud. — The location of a ditch upon the best, cheapest and most available route is a matter left to the judgment of the commissioners, which, in the absence of fraud, is not subject to review by the court, and evidence to that effect should be excluded.</p> <p>Same. — Exclusion of. — Immateriality.—It was not error to refuse to allow the remonstrators to ask a witness on cross-examination if he did not go with the commissioners and direct them where to locate the ditch, as such evidence was immaterial.</p> <p>Costs.— Uncalled Witnesses. — Manner of Taxing. — Discretionary with Court.— The matter of taxing the costs of witnesses who were subpoenaed and were not called to testify on the trial, is a question largely in the discretion of the trial court.</p>

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

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