Volume 133 — Indiana Reports

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

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

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

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

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

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

<p>Erom tlie Adams Circuit Court.</p>

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

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

<p>Appeal. — Dismissal of.— Violation of Rule of Supreme Court. — Insufficiency of Brief. — Where an appellant, in his brief, cites no authority and attempts no argument in support of his assignment of errors, there is such a violation of a rule of this court as will work a dismissal of the appeal.</p>

<p>Receiver.- — Appointment of. — Sufficiency of Cause. — Test of. — Opinion Alone not Sufficient. — In an action brought for the appointment of a receiver without notice, the sufficiency of the cause required to be shown must be, first, the necessity of the appointment of a receiver at all/ second, the necessity for not giving notice to the adverse party; and sufficient cause not being defined in the statute, that question must be determined by the adjudged cases and precedents. The statement in the complaint that there is an emergency for the immediate appointment of a receiver without notice, being a mere statement of opinion,[is not a sufficient showing, but the facts on which the opinion is founded should be pleaded.</p> <p>Same. — For insufficiency of facts to appoint a receiver without notice, see opinion.</p> <p>Same. — When Notice Must he Given. — Insufficient Excuse for not Giving. — Cause ■for Appointment. — The mere non-residence of one of the defendants is no excuse for not giving notice to a defendant who is not a non- resident, and the mere apprehension of the complainant, not supported by sufficient facts, will not be cause for the appointment of a receiver without notice.</p> <p>Same. — Authority of. — Effect on of Appeal. — Effect of Appeal on Case Below.— What Questions Considered on Appeal. — When an appeal is taken from the appointment of a receiver, the authority of the receiver is suspended until a determination of the appeal, and the cause, notwithstanding the appeal, remains in the nisi prim court, and amendments and other changes in the pleadings may be made as in other cases. In such a case, on appeal, no question will be determined except that which immediately led to the appointment of the receiver without notice.</p> <p>Practice. — Objections and Exceptions.— When Made and Taken. — -In ordinary ’ adversary proceedings, in order to save a question for review in this court, not only must the exceptions be taken at the time the decisions are made, but they can not be taken after that time; but, in ex parte proceedings, when objections and exceptions are taken at the earliest legal oppor- ' funity they will be sufficient. An appeal will lie from an appointment of a receiver by a judge in vacation, although there is no provision in the code for taking exceptions in vacation.</p> <p>Appeal.— When will not Lie. — Receiver.—Appointments of. — How to Secure Appeal. — In an action appointing a receiver an appeal will not lie from a ruling of the court overruling a motion to vacate an order appointing a receiver, but in order to secure an appeal the course pointed out by the statute must be followed.</p>

<p>.Railkoad. —Statute Construed. — Act of March 9th, 1889, Acts of 1889, p. 279. — Notice of Arrival of Trains, etc'.- — In an action against a railroad company, based upon the act of March 9th, 1889, requiring corporations, companies, or persons operating a railroad in this State, to write upon a blackboard in each passenger depot, at which station there is a telegraph office, at least twenty minutes before the schedule time for the arrival of each passenger train stopping at such station, the fact whether such train is on time, and if late how much, and providing a penalty or forfeiture for the violation of said act, etc., a demurrer questioning the validity of the statute was sustained.</p> <p>Meld, that the act is constitutional, and that the demurrer to the complaint should have been overruled.</p> <p>'Same. — Statute Construed. — The word “ Station ” as TJsed in the Statute. — Meaning of. — The word station, as used in the statute, is synonymous with the word passenger depot, meaning the place, the grounds and the buildings prepared for and used by the traveling public at such points in waiting for, taking and leaving the trains; and by the company in operating the road at that point.</p> <p>Same. — Statute Construed. — Imposed Duty. — What Follows by Necessary Implication. — Where the Legislature imposes the duty of doing a certain thing it carries with it the doing of such things as are necessary to perform the duty commanded, and the imposed duty of noting upon blackboards whether or not a train is on time, or if late how much, carries with it, by necessary implication, the furnishing of the blackboard and the necessary material 'to write with.</p> <p>.Same. — Statute Construed. — Judicial Notice of how Mailroads are Operated. — Class Legislation. — The court takes judicial knowledge that telegraph lines are maintained, operated and used in connection with railroads, and that it is necessary to do so to properly operate them and give advice as to the time of running trains, and in transacting the business of the road; and the fact that some company may operate a line of road by telephone, or ■some other means of communication, does not invalidate the law which is confined to those operated by telegraph, upon account of class legislation, for the law applies to all alike who operate roads by means of telegraphic information.</p> <p>.Same. — Statute Construed. — Forfeiture.—-What Acts Constitute. — Frequency of Forfeitures. — Whether there is a failure to make an entry on the board concerning the train, as required by the act, or whether there be an entry concerning such train, which is false, there could be but one forfeiture ns to such train at such station during the same trip.</p> <p>Same. — Statute Construed. — Interstate Commerce. — Inierferencewith.—Police Regulations. — Competency of — While the statute, requiring notice under certain condition of the arrival of passenger trains, deals with persons and corporations engaged in interstate commerce, yet the statute is a proper police regulation, which does not interfere with interstate commerce, and is in the power of the Legislature to enact.</p> <p>Same. — Statute Construed. — Act Requiring Notice of Arrival of Trains.— When Operative. — Acts of Servants of Same Master not Interstate Commerce. — The act requiring notice of the arrival of trains, etc., is operative only when the company or person operating a railroad possesses the information, or the means of conveying such information to the point where it is to he noted, and the fact that to carry out the law, as required by the statute, would necessitate the transmission of knowledge belonging to the master by a servant to a servant of the same master in another State, does not impose any restrictions to the freedom of commerce, and would not be an interference with interstate commerce, for the reason that the act of the servant or servants is the act of the master, and a person can not carry on commerce with himself.</p> <p>Statute Construed. — Penal Statutes Strictly Construed. — Common Sense View. —Meaning of Words.— What is not a Violation of Rule. — Where a court, in construing a penal statute, takes a common-sense view of the statute as a whole and adopts the sense of the words which best harmonizes with the object and intent of the Legislature, there is not a violation of the rule which requires that such statutes shall be strictly construed’.</p> <p>Same. — Act not in Conflict with Section 2 of Article 8 of Constitution.-— Disposition of Money Collected by Fines and Forfeitures. — Distinction Between Criminal and Civil. — That part of the statute which provides that the penalty for violation of the act shall be paid into the county treasury for the use of the county is not in conflict with section 2 of article 8 of the Constitution, which provides that fines assessed in breaches of the penal laws of the State shall go into and be a part of the common school fund. Such section of the Constitution only has reference to moneys obtained as a penalty for the violation of the criminal laws of the State, and forfeitures in criminal cases.</p> <p>Same. — Legislative Discretion — Interest of Prosecuting Attorney in Amount Recovered.— Validity of Act. — The fact that the law gives to the prosecuting attorney an interest in the amount recovered does not affect the validity of the law, as that is a matter in the discretion of the Legislature in fixing the compensation of such officer.</p>

<p>Patent-Bight. —■Statute Construed. — Authentication.—Meaning of. — Filing Copy with Clerk.' — In ail action to enforce the collection of a promissory note, and to foreclose a mortgage executed by the defendant to the plaintiff for a patent-right, the defendant answered that the transaction was unlawful, and the contract non-enforceable, because of the failure of the vendor of the patent-right to comply with section 6054, B. S. 1881, by filing a “duly authenticated” copy of the letters-patent in the clerk’s office. Before the execution of the note and mortgage in question, the plaintiff filed with the clerk what purported to be a copy of the letters-patent, which was only authenticated by the affidavit of the vendor.</p> <p>Held, that the authentication required by the statute is, apart from the affidavit, such official certificate and attestation as would render the letters-patent admissible in evidence.</p> <p>Held, also, that the contract was not enforceable, because a properly authenticated copy of the letters-patent was not filed with the clerk before the contract was executed.</p>

<p>Gbavel Road. — Free.—Inducements to Sign Petition. — Injury from. — Remedy.— When Precluded. — Where a free gravel road is sought to be established, and inducements are held out by certain petitioners to influence others to sign the petition, and the latter are harmed by such inducements, they should seek redress by objecting to the sufficiency of the petition before it is passed upon by the board of commissioners, and failing to do so, if the adjudication was effectual, they are precluded by the judgment.</p> <p>Same. — Preliminary Surrey and Report. — Bond to Secure Costs. — Approval of.— Ministerial Act. — The act of approving a bond to secure the expense of a preliminary survey and report, in establishing a free gravel road, is a mere ministerial act, and the fact that one of the commissioners acting in such approval was a petitioner and interested party did not amount to error.</p> <p>Same: — Judicial Act of Board. — Acting Member Disqualified.- — Judgment Voidable. — Presumption as to Notice. — Collateral Attach. — The action of a board of commissioners, in passing upon the sufficiency of the petition and appointing the viewers and surveyor, is a judicial one, and the participation of a commissioner disqualified by interest or otherwise makes the judgment voidable; and the statute having provided for notice, it will be presumed, in a collateral attack, that such notice has been giveri, and an opportunity to appeal afforded the parties adversely affected, and the board of commissioners having acquired jurisdiction both of the subject matter and the person, the proceedings are not subject to a collateral attack by injunction or otherwise. If, however, there was no provision for notice, or opportunity given to appeal, injunction would be the proper remedy.</p> <p>Judgment. — Action to Set Aside. — Facts Affecting Such Action. — When an action is brought to declare a judgment a nullity, the fact that the greater portion of the members of the court were disinterested, and, also, that a large number of parties litigant, other than such disqualified judge or judges, were interested in and would be affected by such judgment, is not without weight.</p>

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

<p>Insurance. — Existing Incumbrance on Property Insured. — True Representation-by the Assured. — Fake Entry in Application by Company’s Agent.- — -Recovery not Precluded. — Where there is a provision in an insurance policy against an incumbrance of the property insured, and the assured represented the property to be unincumbered, when in fact it was incumbered, such incumbrance will be fatal to a recovery in case of a loss of the insured property; but where the assured truthfully answered that the property was incumbered, and the agent of the insurance company, who undertook to fill out the blank application for insurance, stated that there was noincumbrance, the company will be held to have taken the risk with knowledge of the incumbrance, and the assured, in case of loss, will not be-precluded from a recovery because of such incumbrance.</p> <p>Same. — Executing New Evidence of Incumbrance for Old. — Effect on Policy.— Where an assured executed new notes and a mortgage to secure the payment of a pre-existing debt and lien upon the insured property, there is-not a new and additional incumbrance upon the property such as will avoid the policy; for there is no increase of risk by the change of indebtedness.</p> <p>Same. — -Over-Valuation by Assured. — Effect on Policy. — In the absence of allegations of fraud, an answer alleging that, the assured madcj an overvaluation of his property, and thus forfeited his policy,is insufficient, unless there is an over-valuation so gross as to authorize the inference, taken in connection with other circumstances, of an intent to mislead.</p> <p>Same. — Application for. — Agent Authorized to Take. — Fake Entry in Application by Agent. — True Statement by Assured. — Effect.—An agent authorized to receive applications represents the insurance company, and if he receives truthful information from the assured, and undertakes to correctly fill the application, but, instead of doing so, inserts false statements, the assured will not be made to suffer because of the wrongful act of the agent.</p> <p>Same. — Policy.—Subsequent Incumbrance in Violation of. — Effect. — If, in an insurance policy, there is a warranty against subsequent incumbrances, the policy will, as a general rule, be vitiated, if a subsequent incumbrance is created.</p> <p>Same. — Incumbrance.—Mistake in Computation of. — Effect on Policy. — Where an assured, in computing the amount of incumbrance due on his insured property, makes a mistake as to the amount due, and executes a renewal of the incumbrance for a greater amount than is actually due, by reason of the mistake in computation, there is in reality no increase of incumbrance, and the policy will not be thereby avoided.</p> <p>Same. — Contract of. — Notice of Loss. — When Waived. — The principle, that where a contract is repudiated, or where a party denies liability under it, tlie performance, of stipulations requiring notice, demand, or the like, are waived, fully applies to contracts of insurance:</p> <p>Same. — Pleading.—Answer.—Confession and Avoidance.— When Available.— When the answer confesses the allegations concerning the filling up of the application, and the statement of the applicant to the agent of the company, the answer is bad unless it effectively avoids such allegations, which are material and relate to a vital point.</p> <p>Pleading. — Complaint.—Anticipating a Defense. — When Proper and Necessary. — While a party is not bound, as a rule, to anticipate a defense, yet it is often proper and highly necessary for him to do so ; and if such anticipation fails to avoid the defense, the complaint will be bad.</p> <p>Practice. — Failure to Fully State Facts Essential to a Recovery in a Special Finding. — Effect on Prior Erroneous Rulings. — Where there are palpable and influential errors, as in rulings upon demurrers, the mere failure in ' the special finding, to fully state facts - essential to a recovery, does not avoid the effect of prior erroneous rulings.</p> <p>Same. — Overruling Demurrer to Bad Answer. — When Error. — When Harmless. — Where a demurrer is overruled to an answer which is plainly bad, there is unquestionably error which will reverse the judgment, unless it clearly appears from the record proper that no harm was done the plaintiff.</p> <p>Forfeiture. — Not Favored by Courts. — Not Aided by Intendments. — Courts are reluctant to grant forfeitures, except in very clear cases, and intendments can not be taken in favor of the party asking the forfeiture.</p>

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

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

<p>From Hendricks Circuit Court.</p>

<p>Estoppel. — Answer by Way of. — Necessary Allegations. — Conveyance by Minor. —Representations as to Age.- — Where a minor conveys real estate, and on arriving at twenty one years of age disaffirms his deed and sells the same to another who brings suit to quiet his title to the land and have the deed made during minority declared void and set aside, and the defendant answers by way of estoppel, but does not allege that the minor made any representations as to his age, in connection with the sale, as an inducement for the defendant to purchase, upon which he relied, or that he was actually misled by his grantor, such answer, as an estoppel, is fatally defective.</p> <p>Statute of Limitations. — Quieting Title. — Statute Applicable to. — Actions-to quiet title are governed by the fifteen years’ statute of limitation, and not by the two years’ statute.</p> <p>Pbactice. — Overruling Demurrer to Bad Answer. — Effect where all Defenses are Admissible under General Denial. — In an action where all defenses may be given in evidence under the general denial, yet if other answers setting up specific defenses are filed, which are clearly bad, and demurrers to the same are overruled, such action will constitute reversible error; the rule being that a judgment will be reversed for an error in overruling a demurrer to a bad answer, unless it affirmatively appears that such ruling was harmless. The theory that the answers are good is presumed to have been adhered to throughout the case.</p>

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

<p>Conveyance. — Deed.—Construction of.- — Surplusaye in.- — Inchoate Interest of Wife can not be Conveyed. — Not a Present Estate. — Where a deed made by ■a husband and wife contains all the matter essential to a conveyance in fee simple of the interest of both grantors, but contained the clause, “intending hereby to convey absolutely to said grantee, as executor .aforesaid, all the interest of Sarah Davenport in said premises,” such clause will be treated as mere surplusage, and will not operate to make it the intention of the parties to convey simply the inchoate interest of the wife (for the fee simple was in the husband), which would be a nullity. The inchoate interest of the wife in the lands of her husband is not a present estate, and so long as the title remains in the husband, the inchoate interest alone can not be conveyed.</p> <p>Deed. — Construction of. — Construed Most Favorably to Grantee. — Will be given Some Effect if Possible. — When a deed is ambiguous, and it is necessary to resort to rules of construction^ the instrument will be considered as a whole, and construed most favorably to the grantee; and, if possible, some effect will be given to the deed; for it will be assumed that the parties intended the deed to be operative, and not a mere nullity.</p>

<p>Jurisdiction. — Supreme Court. — Agreement of Parties Can Not Confer Jurisdiction. — A Question of Law. — For jurisdiction of the subject-matter in controversy, the court must look to the law, and the agreement of the parties litigant that this court has jurisdiction does not affect the question.</p> <p>Supreme Court. — Highest Judicial Tribunal.- — Takes Its Sank and Authority from the Constitution. — Not Subject to Legislative Interference. — The Supreme Court is the highest judicial tribunal of the State, and takes its rank from the Constitution, and the Legislature can not deprive it of authority incident to its position or deprive it of its rank; for distribution of judicial power is made and vested by the Constitution.</p> <p>Legislature. — Constitutional Law. — Power to Create Appellate Tribunals. — The Legislature can create appellate tribunals inferior to the Supreme Court by limiting their jurisdiction to cases not of the highest grade, and to appeals from recoveries of a limited nature.</p> <p>Statute Construed. — Appellate Court. — Act Creating. — Transferring Cases from Appellate Court Docket to Supreme, and vice versa. — In the act creating the Appellate Court the provision regulating the practice in the Supreme and Appellate Courts, by providing for the transfer of cases from one docket to the other, is not special legislation, and is, therefore, not void a's being unconstitutional.</p> <p>Appellate Court. — Transfer of Cases from Supreme Court to.— Validity of Act. — Statute Construed. — The act providing for the transfer of cases to the Appellate Court, which were appealed to the Supreme Court prior to its enactment, is valid; for remedies and tribunals may be changed by substitution without impairing vested rights.</p> <p>Same. — Jurisdiction of. — Given Expressly by Statute.- — -No Implied Jurisdiction — The statute creating the Appellate Court expressly designates the class of appeals over which it is given jurisdiction, and the express mention of one thing implies the exclusion of others.</p> <p>Same. — Jurisdiction of. — Title to Seal Estate Incidentally Involved. — Where the question of title to real estate is a mere incidental matter, and there is no decree or judgment affirming it to be in one or denying it to be in another, and the recovery is for money only, and does not exceed one thousand dollars, the jurisdiction is in the Appellate Court.</p> <p>Appeal. —Theory in Trial Court, Theory on Appeal. — The theory upon which a case was tried must be adhered to on appeal.</p> <p>Title. — Partition Proceedings. — Title in Issue. — Effect on.- — In an action for partition, title to real estate may be put in issue; and the judgment rendered thereon, if in a court of competent jurisdiction, and the question of title appears on the face of the record, -will operate as a former adjudication in any subsequent litigation between the same parties involving the same matter.</p> <p>Same. — In Fee. — How Acquired. — Easement.—Title of in Fee. — Title in fee to land may be acquired by possession or limitation. An easement is an estate in land, and may, therefore, be held in fee.</p> <p>Same. — In Fee. — Effect on of Strengthening or Augmenting Deeds. — When a grantee once acquires an estate in fee it remains in him, unless he subsequently divests himself of it, and he may accept deeds strengthening his title or augmenting appertaining privileges without losing title once vested. . •</p> <p>Special Verdict. — Failure to Embrace all Matters in Issue.' — Venire de Novo. — When Motion for Will Die. — New Trial. — Motion for. — When Proper.— Practice. — A special verdict that does not embrace all the matters in issue is not bad as against a motion for a venire de novo, as such motion only lies where the verdict upon its face is defective in form. Where the verdict is contrary to the evidence, or does not state a fact which the party believes the evidence establishes, the remedy is by a motion for a new trial.</p> <p>Same. — When Sufficient to Support a Judgment. — Conclusions of Law and Matters of Evidence in. — Effect on. — If a special verdict states sufficient facts to support a judgment, the mere presence of conclusions of law or matters of evidence will not vitiate the verdict; the rule being that verdicts are to receive a reasonable construction, and are not to be disregarded if they can thus be sustained.</p> <p>Practice. — Special Verdict. — Motion for Judgment on. — Saving Exceptions.— If the facts stated in a special verdict entitle' a party to judgment, the proper procedure is by a motion for judgment; and the question of the sufficiency of the facts may be saved by an exception to the ruling on such motion by the party adversely affected thereby.</p> <p>Damages.— What the Verdict Must Show. — Assessment of in the Alternative.— In action to recover damages only, the amount of the damages must be stated, or such facts stated as leave nothing to be done but to compute them ; and the usual and appropriate method of making the assessment is in the alternative.</p> <p>Judgment. — Failure of to Follow Verdict. — Remedy for. — When the judgment fails to follow the verdict, the remedy is not by a motion for a new trial, or for a venire de novo, but by a motion to modify the judgment.</p> <p>Same. — Special Verdict. — Assessment of General Swm, Inconsistent with Specific Facts. — Effect cm Judgment. — Not Ground for a Venire de Novo. — Whore a special verdict states the general sum as the damages, it is not necessarily bad, on a motion for a venire de novo, although the specific facts stated may not, in law, entitle the successful party to the damages specified in the general statement, for the appropriate judgment may be entered on. the specific facts.</p> <p>Same.— Ultimate. — Effect on of Intermediate Errors. — Intermediate errors will not reverse where the ultimate judgment is right. -</p> <p>OoifVEYAirCE.— What Passes by Implication. — Grant of Mill, Mill-race, etc.— In a conveyance granting a mill-race, a mill, or the like, a grant of the land forming an essential part of the thing granted is conveyed, although there may be no specific designation of the particular parcel or quantity of land occupied by the mill or race. 9</p>

<p>From the Yanderburgh Circuir Court.</p>

<p>Apportionment. — In Violation of the Constitution. — Judicial Jurisdiction of Act for. — Legislative Discretion. — A Political Question. — The Legislature, in making an apportionment of the State for legislative purposes, has a certain degree of discretion which can not be interfered with; but when such act is in violation of the Constitution of the State, and the validity of the statute is called in question, the question is not merely political, but is a judicial one, and the courts have jurisdiction to pass upon it.</p> <p>Same. — Legislative Discretion. — Equality of Representation. — Approximation to.- — Unit of Representation. — Fractions of. — The Legislature has no discretion to make an apportionment in violation of the enumeration of the-inhabitants authorized to vote, as provided for in the Constitution; and, because exact equality is not possible, the General Assembly is not excused from making such an apportionment as will approximate the equality required by the Constitution; and this rule forbids the formation of districts containing large fractions unrepresented, where it is possible to avoid it, while other districts are largely over-represented. While the General Assembly has much discretion in disposing of the fractions of the unit of representation, yet it is not beyond control.</p> <p>Jurisdiction. — A Political Question. — What Constitutes Such a Question.— Courts Will not Take Cognizance of. — Courts decline to take cognizance of political questions, which generally arise when there is an attempt made to prevent the incumbent of either the executive or legislative department of government from performing an act which such incumbent claims the right to perform by virtue of his office, or to compel him to perform some act which he declines or refuses to perform.</p> <p>Constitution. — Provisions of. — IIow Construed.— Constitutional provisions are rarely, if ever, merely directory.</p> <p>Statute Construed. — Questions of Validity of. — -When Considered. — Rules Governing. — Courts are reluctant to declare acts of the Legislature unconstitutional, and, in passing upon such a question, are governed by the following rules: first, a court will never decide a question involving the constitutionality of a statute, if the merits of the case in which it is. involved can he determined without such decision; and, second, a court will never declare a statute unconstitutional where there is any doubt upon the subject.</p> <p>Same. — Apportionment Acts of 1891 and 1879.- — Constitutionality of. — The act of March 5, 1891, and the act of 1879, purporting to redistrict the State, for legislative purposes, are in conflict with the Constitution of the State,, and therefore void.</p> <p>'Office and Officer. — Officer De Facto. — Validity of Acts of. — Where one is elected to an office under an unconstitutional statute, he is an officer de facto, and his acts performed before ouster are as valid as the acts of an ■ officer de jure.</p> <p>^Recovery. — Theory of Complaint. — Relief Sought. — Not Entitled to. — Suit Must Fail. — As the complaint proceeds upon the theory that representatives and senators should be elected under the act of 1879, and as that act has been held unconstitutional, the relief sought can not be granted, and the suit must fail. The court erred in overruling the demurrer to the complaint.</p> <p>Eehearing. — Petition for.— Waiver of. — Effect of Waiver. — After an opinion has been rendered in a cause pending in this court, and all the parties to the appeal have joined in a waiver of the right to petition for a rehearing of the case, and accept as conclusive such opinion of the court, and the court has ordered the clerk of this court to certify the cause to the court below, such procedure divests this court of jurisdiction of both the cause and the parties.</p> <p>Same. — Appearance of Attorney General as Amieus Curia. — Can not Petition for a Rehearing. — Where a suit pending in this court is of such a character as to affect the entire people of the State so as to require the services of the Attorney General, and he is ordered by the court to appear in behalf of the people, he is not a party to the suit, and is, therefore, not. entitled to petition for a rehearing, his relation being that of an amicus curia.</p>

<p>Special Finding. — Containing Improper Mailer. — Disregarding Improper Mailer. — Can not be a Foundation for a Conclusion of Daw. — If the special findings embrace matters not proper or competent to be considered by the court, or facts which could only be established by considering incompetent evidence, such portion of the finding should be disregarded, and can not form a basis for a conclusion of law.</p> <p>Evidence. — Contract.—Written Instrument. — When Parol Evidence Admissible lo Add lo, Vary or Contra,diet — It is a rule of law that where a contract has been finally committed to writing all prior negotiations and stipulations between the parties are merged in the writing, and its terms can not be varied, contradicted or added to by parol evidence; but this rule has ño application when the writing shows upon its face that it does not embrace the entire contract, and additional facts are necessary to show its nature and extent.</p> <p>Assignment. — Equitable.— What Constitutes. — Liquidation of Firm. — General' Assets. — What not a Part of. — A firm of Wood & Smith were engaged in the cooperage business, manufacturing tierces for Kingan & Co., and the latter was to pay the firm -of Wood & Smith one dollar for each tierce that was manufactured before needed, and was stored in the warehouse;. and such tierces, on being examined and approved by said Kingan & Co., an-additional sum of 37^ cents was to be paid for them. Said firm of Wood & Smith being indebted to one C., whose demand was due, and said firm of Wood & Smith being unable to pay it, one Wilson Morrow advanced the money desired, and said Wood & Smith made a note for the amount to said C., and C. endorsed the same to said Morrow; and, as additional security for the money advanced, Wood & Smith executed the following writing: “Indianapolis, August 15, 1891. We hereby agree to pay balance due on tierces stored in our brick warehouse, viz. : (3,500) three thousand five hundred tierces, and (2,000) two thousand in Patrick Manley’s cellar; balance to be 374- cents per tierce; amount subject to Wilson Morrow’s demand, as fast as tierces are delivered during-the packing season of 1891-92. Above tierces are fully insured by us. Wood & Smith.”</p> <p>Held, that the above writing, executed by Wood & Smith to Morrow, was an equitable assignment of the 37^ cent fund due on said tierces, and that said fund was not, on the liquidation of the firm, a part of the general assets of the firm.</p>

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

<p>Evidence. — Impeaching Testimony. — Effect of. — Impeaching testimony goes only to the credibility of the witness, and only affects matters in dispute, in so far as it weakens the credibility of the witness sought to be impeached.</p> <p>Same. — Admitting Incompetent Evidence. — When Will Not Work a Reversal.— Presumption. — Cases may arise where the facts are so fully and conclusively proved by other testimony that the appellate tribunal will not reverse the judgment because incompetent evidence was admitted to the same facts; but where incompetent evidence of an influential character, is allowed to go to the jury, it will be presumed to have prejudiced the objecting party, and, unless this presumption is rebutted, the judgment must be reversed.</p> <p>'Same. — Res Gestae. — Declarations.— When a Part of. — Principal and Agent.— Railroad. — Damages.—-Where, in a suit for damages for injuries sustained while braking on a railroad, the declarations of an engineer concerning the transaction were offered and admitted in evidence, the declarations were not admissible against the principal unless they were made while the agent was conducting said transaction for the principal, and constituted a part of the res gestae.</p> <p>Same. — Res Gestae. — Declarations a Part of. — Rule as to. — In determining^ when declarations amount to a part of the res gestee, each case must depend, in a great degree, upon its particular facts and circumstances; but when the declarations of the agent are made to the person whose interests are directly involved, at the place where the transaction happened, so near the occurrence in point of time as to be justly and reasonably regarded as a part of it, refer directly to the transaction, and are not narratives of the past, they should ordinarily be regarded as a part of the res gestee. For the application of the rule, see opinion.</p> <p>Same. — Res Gestee.— Whole of Conversation Admissible. — Exception.-—Under the rule that declarations forming a part of the res gestee are admissible in evidence, the whole conversation is admissible, unless part is excluded by other rules of law.</p> <p>Same. — Declaration.—Past Event. — Opinion Not a Part of Res Gestae. — A declaration of an agent, which is a combination of an opinion and a narration of a past event, can not be a part of the res gestee.</p> <p>New Tbiad. — Motion for. — Certainty Reepuired in.— Verbatim Copy. — Where a motion is made for a new trial because the court erred in permitting incompetent evidence to go to the jury, it is not required that the evidence be set out in detail, or that it be stated verbatim, or that a verbatim statement of the objection made to its introduction be given; it being sufficient if the matter be alluded to with such certainty that the court could not mistake the matter and ruling complained of.</p> <p>Same. — Argument on Motion for. — Was Question for Properly Padsed. —• Gan Not Be Questioned After Decision. — After parties have joined in a discussion for a new trial, and have obtained a decision, they can not be heard to say that the question was not properly raised.</p> <p>Pbactice. — Evidence.—Objectionable Matter Goupied with Competent. — Motion to Strike Out. — Where incompetent matter is coupled with competent in answer to a proper question, the proper way to save the error is by a motion to strike out.</p>

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

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

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

<p>Erom the La Porte Circuit Court.</p>

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

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

<p>Conveyance. — Voluntarily by Parent to Qhihl. — Presumption as to. — Advancement. — Burden of Proof. — A voluntary conveyance of land by a parent t* one of his children is presumed to have been intended as an advancement, and the burden of showing that it was not so intended rests upo» the person who asserts it to be anything else.</p> <p>Evidence. — Declarations.—Effectiveness of. — Evidence consisting oi declarations is generally considered a weak class of evidence, from the fact that the party making them may not have clearly expressed his meaning, or may have been misunderstood, or the witness may have unintentionally altered the expression.</p>

<p>■Criminal Law. — Criminal Conspiracy. — Indictment.—Sufficiency of. — Surplusage. — Motion to Quash. — An indictment which charges a public offense with reasonable certainty is good, although the offense may not be charged with strict formality, and there may be surplusage in the indictment, and defects that do not affect the substantial rights of the defendant are not sufficient to authorize the quashing of the indictment or information. For the indictment, see opinion.</p> <p>Same. — False Pretense. — May Consist of Acts. — Acts, as well as words, may constitute a false pretense in the meaning of the law.</p> <p>Same. — Criminal Conspiracy to Defraud Dife Insurance Company.- — Insurance Policy. — Need Not Be Incorporated in Indictment. — In an indictment charging a criminal conspiracy to defraud a life insurance company by endeavoring to make it to be believed and understood that the assured had been burned to death, and thereby attempting to induce the beneficiary of the assured to recover the amount of said policy, and the insurance company, on the faith of said false representation, to pay the amount of said policy, it is not necessary to incorporate the policy of insurance in the indictment.</p> <p>Same. — Criminal Conspiracy. — Object of Can Not Affect. — Gravamen of the Offense. — In a criminal conspiracy to defraud a life insurance company, it can make no difference that the immediate and direct object of the conspirators was to obtain money for the beneficiary in the policy, for the gravamen of the offense consists in the felonious purpose to defraud another out of money or property.</p> <p>Same. — Criminal Conspiracy. — Beneficiary of Life Policy Not a Conspirator.— Does Not Affect Guilt of Others. — In an indictment charging a criminal conspiracy to defraud a life insurance company, it is not necessary to allege that the beneficiary of the policy was one of the conspirators, the allegation that they feloniously désigned to deceive her and indhce her to make a false claim is sufficient.</p> <p>Same. — Cmminal Conspiracy. — Involving an Innocent Person. — Effect.—It can not avail a defendant in an action for criminal conspiracy to set up in defense that the success of the wicked-.seheme depended, in part, on the action of an innocent person.</p> <p>Same. — Criminal Conspiracy. — Presumption as to Action of Beneficiary. — Intention. — Presumption as to. — In an action for criminal conspiracy to defraud a life insurance company; it is to be presumed that the beneficiary of the life policy will accept the benefit, and proceed to recover the amount of the policy, when she believes it to be due; and it is also presumed that a, person intends the natural and legal consequences of his actions.</p> <p>Same. — Criminal Conspiracy. — Conspirators’ Scheme. — Presumption as to Intention of. — In an action for criminal conspiracy, it is to be presumed that the conspirators acted upon the theory that their scheme would not be discovered, and that their fraudulent plan would be successful; and the fact that they were foiled can be of no benefit to them.</p> <p>Same. — Plea in Abatement. — How Construed. — Necessary Allegations. — A plea in abatement must be strictly construed, and, in order to defeat a prosecution, ought, at least, to state the substance of the material allegations of the indictment relied upon as the ground for abating the, prosecution.</p> <p>Same. — Instruction to Jury. — Demand of Joint Defendants fof Separate Trials. —Where two or more defendants are charged with the same offense in the same indictment, it is not error for the court, in instructing the jury, to inform them that the defendants had demanded separate trials.</p> <p>Same. — Criminal Conspiracy. — Instruction to Jury. — Life Insurance Policy.— Beneficiary’s Ignorance of. — Effect.-—In an action for criminal conspiracy to defraud a life insurance company, it was error for the court to instruct the jury that the defendant must be acquitted, unless it is made to appear that the beneficiary of the policy knew of the existence of such policy.</p> <p>Same.- — Criminal Conspiracy. — Evidence.—Insurance Policy. — In an action for criminal conspiracy to defraud a life insurance company, the policy, though not a part of the indictment, is admissible in evidence, for a written instrument may often be competent evidence, and yet not be a necessary part of the pleading.</p> <p>Instructions to Jury. — Exceptions to.— Can Not Be Taken in Cross.— Failure of Record to Contain All the Instructions. — Where the record does not show that all the instructions given in the case are in the record, this court can not consider any question on the giving or refusal of instructions ; exceptions to instructing can not be taken in gross, hut must be taken specifically.</p> <p>Same. — Not Correct in Terms Asked. — Refusal to Qive. — Effect.—■'Where an instruction is not correct in the terms in which it is asked, it is not error for the court to refuse to give it, even though the court, had it so elected, might have modified it so as to express the law.</p>

<p>Statute oe Limitation. — Right to Plead. — Averment in Complaint Can Not Affect. — Five Years Statute. — Administrator’s Sale. — Action to Set Aside.— In an action to set aside an administrator’s sale of real estate, an averment in the complaint, of the date when the plaintiff became twenty-one years of age, is surplusage, and can not aflect the right of the defendant to set up in answer the statute of limitation; and, in such case, the five years statute being pleaded and governing, a demurrer to it should have been overruled.</p> <p>Bija op Exceptions. —Filing Previous to Day Fixed by Court. — Effect.— Where a day is fixed by the court, on which to file a bill of exceptions, and the bill is filed on the day previous, the bill is seasonably filed, and does not have the same effect as if it had been filed after the time allowed.</p> <p>Administbatob’s Sale.— Void. — Record. — Constructive Notice. — Subsequent Purchasers. — Attorney and Client. — -Where an action was brought to set aside an administrator’s sale of real estate as void, and the record shows that the firm of O’Brien and Graham, acting as attorneys for said administrator, procured an order for the sale of said real estate, and that when sold, said real estate was purchased by one Robert Graham, the record was sufficient to jiut subsequent purchasers on inquiry, and was constructive notice of the illegality of. the sale, said Robert Graham being a member of the said firm of O’Brien and Graham.</p> <p>Same.— Void. — Action to Set Aside.— What is Required of Plaintiff. — Where an action is brought to set aside a void administrator’s sale of land, the plaintiff is not entitled to the relief demanded until he accounts for the amount paid out of the proceeds of said sale on liabilities of said estate, for which the land was liable.</p> <p>Notice. — Constructive.—Record.—Void Administrator’s Sale. — Subsequent Purchaser. — A record of an illegal sale by an administrator is sufficient to amount to constructive notice of such illegality, when the connection between the facts disclosed by the record and the facts to be discovered are such that the former may be said to furnish a reasonable and natural clew to the latter.</p>

<p>Conveyance. — Right of Way. — Natural Gas Line. — Effect of Instrument.— Attempt to Release. — Effect.—Where A. granted to B. a right of way through his land to lay a natural gas pipe-line, and the writing is signed by the grantor alone, which is accepted by'the grantee, and the written instrument is duly recorded in the proper county, the instrument is a contract entered into by both the parties, and can not be annulled by one of them only; and where the grantee afterwards executes a writing by way of cancellation of the former instrument, and has it entered of record upon the margin of the record of the first-named instrument, it can not, so far as it concerns the rights of the grantor, have any effect. For contract, see opinion.</p> <p>Same. — Lease.—•Gas Pipe-Line. — Benefit to Grantor Dependent Upon Grantee’s Action. — Mistake of Grantee. — Dine Laid Wholly Without Grantor’s Land.— Effect on Bights. — Where A. grants to B. a right of way to lay a natural gas pipe-line, and the lease grants to A., in consideration of said right of way, the free use of gas from said pipes when laid, and certain other rights, said grantor of the right of way has no rights under the lease until the grantee has occupied said right of way, and the grantee can not be bound to use the right of way in a definite time, under penalty, unless so specified in the lease; and where the grantee of the right of way, by mistake, placed said pipe-line entirely off the grantor’s land, and believing they were in said right of way, permitted the grantor to make connection and use the gas, such acts did not estop the grantee, nor secure any additional rights to the grantor.</p>

<p>Dedication.— Street. — Town Plat. — Effect of. — Question of Law. — Marking streets upon the plat of a town, or an addition thereto, and selling lots with reference thereto, constitutes a dedication of the ground so marked for the use of a public street, and whether a plat contains an express dedication of the streets so platted is a matter of law for the court.</p> <p>Highway. — Adverse User. — No Rights Acquired by. — Nuisance.—A person can not acquire any right in a legally established highway by adverse user, for the user, as long as it continues, is a nuisance and punishable by fine.</p> <p>Estoppel. — In Pais. — Facts Equally Known or Accessible to All Parlies.— Facts that are equally known or accessible to all parties concerned can not constitute an estoppel in pais.</p>

<p>Municipal Corpobations. — Street Improvement. — Method of Procedure. — Collateral Attack.- — -Common Cohmcil. — Jurisdiction of. — Where the common council of a city undertook, without a petition from two-thirds of the property owners interested, to improve a certain street, it is not enough — in a proceeding to enjoin the assertion of a lien on the property of the adjoining owners, on the ground that the proceedings to establish said improvement were void — -to assert that two-thirds of the adjoining lot owners did not petition for the improvement. As such an action is a collateral attack upon the proceedings of the corporate officers, it is not proper as to any defects or irregularities which do not affect the jurisdiction; and a decision of the council, upon jurisdictional facts, is conclusive as against a collateral attack, and without a showing to the contrary, it will be presumed that the council correctly decided jurisdictional questions.</p> <p>Same. — Street Improvements. — -Property-Holders in Interest. — Action of. — Estoppel. — Injunction.—When proceedings are being taken by a city council to improve a street, property holders in interest can not stand by while the contract is being executed and the improvement made, and then embarrass the city or the contractor hy denying the propriety of the work, or the manner of its execution; and having pursued their legal remedy, and submitted to the jurisdiction of the tribunal charged hy law with an adjudication of such questions, equitable relief — by way of injunction — will be denied.</p>

<p>Trust and Trustee. — Pleading.—Cross-Complaint Setting up Trust. — Sufficiency of. — Statutory Provision. — In an action concerning real estate, the cross-complaint setup, in substance, the following state of facts: A. purchased ofB. certain real estate, and by agreementbetween A. andC., A. furnished all of the purchase money, and the title to said real estate was taken in the name of C., for the use and benefit of A., all of which transaction was done without any fraudulent intent, and with the understanding between A. and C. that C. should hold said land in trust for A., and that C. did so hold it. To which cross-complaint a demurrer was addressed and sustained.</p> <p>Held, that the facts set up in the cross-complaint were sufficient to constitute a trust within the provision of section 2976, B. S., 1881, and that the demurrer to the cross-complaint should have been overruled.</p>

<p>Railkoad. — Mail Service. — Railway Postal Clerk — Liability to for Injuries.— Photograph Commission. — Honored by Company to which it is not Addressed. —Effect.—A railway postal clerk with a photograph commission, who is entitled to free transportation while along his line of duty', or going to or returning therefrom, is a passenger whose right to a passage is in the contract with the government to carry the mails and the person in charge of the same for a given consideration; and if such postal clerk, while so being carried, is injured by the negligence of the railway company, he has a right of action against said company for his damages sustained, and this is true of a company which becomes the owner of the line of railway after said commission has been issued, and which respects and honors the requests contained in said commission, as if made of them.</p> <p>Same. — Accepting as a Passenger without Fare. — Liability to. — A carrier is liable to persons whom it accepts as passengers, and of whom it demands no fare, to the same extent as it is liable to persons who pay fare.</p> <p>Same. — Passenger.—Liberty of. — Liability of Company with Reference to any Car. — The liability of a railway company to a passenger is the same, whether he be in one car or another, so he has ,a right to be there.</p> <p>Same. — Railway Postal Clerk — Extra Service when not on Regular Run. — Liability of Company to for Injuries. — -The fact that a postal clerk does extra work on a train, while not on his regular run, does not make him a trespasser, or render him any the less a passenger, or affect the liability of the company for damages sustained by reason of the company’s negligence.</p> <p>Same. — Railway Postal Clerk — Right to be Carried. — Presumption as to. — Duty of Conductor. — A postal clerk, whose commission has been honored by the railway company, has the right to presume that it will still be honored, and that he is entitled to a free pass on said line, and it is the conductor’s duty to see that all persons on the train are rightfully there.</p>

<p>Appeal.— When Ruling of Court Below Can Not be Questioned. — An appellant can not question the correctness of a ruling upon his demurrer to certain of the pleadings, when the judgment of the court is such as to have set such pleading at naught.</p> <p>Same.- — ■Motion to Modify Judgment. — Bill of Exceptions. — Defeet of. — No Question Presented. — Where the ruling of the court in refusing to entertain a motion to modify its judgment is assigned as error, and the bill of exceptions does not contain such motion, and there is nothing in the bill to show that such motion was in writing, — the question is not presented in such a form as to enable this court to consider it.</p>

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

<p>Special Finding. — Repugnancy.—Sufficiency of Finding to Support a Conclusion of Law. — In an action to recover money donated in fraud of creditors, where it is specially found, among other things, that such suit was not commenced until six years after the fraudulent transaction, it does not disprove the fact, as found by the court, that the parties to said fraudulent transaction concealed the facts up to the day of the bringing of said suit. For the sufficiency of the special finding to support the conclusions of law, see opinion.</p> <p>Same. — -Evidentiary Facts in. — Effect.—The presence of evidentiary facts in a special finding can not control or overthrow ultimate facts found.</p> <p>Statute oe Limitations. — Concealment of Cause of Action. — Affirmative Acts. — To take a case out oi the statute of limitations because of concealment of the cause of action, there must be shown affirmative acts which amount to more than mere silence.</p> <p>Interest. — Fraudulent Donation of Money. — Donee Chargeable with Interest.— When and Mow Long.-r-'Where a husband, with intent to defraud his creditors, donates money to his wife, the wife is chargeable with interest on said money from the time suit was instituted to recover said money.</p>

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

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

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

<p>Appeal. — Complaint.—Question Arising on. — Failure to Incorporate Complaint in the Record. — Effect.—In order to present any question arising on the pleadings, it is necessary that the pleadings upon which the cause was determined should be incorporated into the record.</p>

<p>Will. — Construction of. — Lapsing Legacy. — Provision Against. — 1low Construed. — Meaning of the Word “Descend.” — A. devises to B., his wife, a life estate in certain real estate, and devises the remainder after her death to C., his son, and if C. should die without issue, then one-third of said real estate to “descend” to his (C.’s) wife, if living, and the remainder to go to A.’s children.</p> <p>Held, that if C. should survive A., he (C.) would take absolutely the remainder limited on the life estate, and in the event of C.’s death before A., C.’s wife would take one-third of said land, and the remaining two-thirds would go to A.’s children.</p> <p>Held, also, that the provision of the will, disposing of the real estate in ease of C.’s death, had reference to the death of C. before the death of the testator.</p> <p>Held, also, that the word “descend,” as used in the will, must be construed in the sense of to go, so as not to defeat the evident intention of the testator, such sense being the common and ordinary one.</p> <p>Held, also, that upon the death of C.’s widow, she having married again, her husband held an interest in the land so obtained by her.</p> <p>Same. — A Provision Against a Legacy Lapsing. — A testator may provide against the lapsing of a legacy by designating to whom the legacy shall go in case of the death of the first legatee.</p> <p>Same. — Construction of. — Presumption.—In construing a will, the legal presumption against a total or a partial intestacy must be adhered to.</p> <p>Quieting Title. — Judgment.—Incorrect in its Terms. — Incompleteness of. — Reversal of. — Where an action was brought to quiet title to certain real estate, and all the defendants joined in a general denial, and all except one in an answer by way of#cross-complaint alleging title to one-tliird of said land, and asking for a partition, and the trial court found against the plaintiff on the complaint, and in favor of the cross-complainants on the cross-complaint, and the court rendered judgment setting off to the cross-complainants the full one-third part in value of said lands, it appearing that the defendant who did not join in the cross-complaint has an interest in said land, and the judgment not having the effect to quiet the title to the .other two-thirds, as prayed for, and which right was not disputed, the judgment on appeal should be reversed.</p>

<p>Municipal Corporation. — Petition to Widen a Street. — Rejecting Commissioners’ Report. — Termination of Cause. — No Power to Revise or Put on Pool a New Proceeding as to Same, Without a New Petition. — Where the board of trustees of an incorporated town, on a petition to widen a certain street, appointed three commissioners to assess the benefits and damages, and make report of the same, and, upon' hearing the report, rejected it, the board of trustees, in rejecting the report, terminated the proceedings, and such board had no authority to revise the proceedings, or put on foot new proceedings to widen the street, without a new petition being filed for that purpose.</p>

<p>Criminal Law. — Indictment.—Duplicity.—Statute Enumerating Several Acts Equally Criminal. — Alleging Two or More of Such Acts in a Single Count. — ■ Conviction on, When. — “ White-Cap Act.” — Where a criminal statute provides that the doing of this or that, setting out several particulars, the doing of any of which shall constitute a crime, and the offender punished in a given way, an indictment based upon such a statute may allege, in a single count, the doing of any number of such acts, and the count will not be bad for duplicity, and the crime may be established by proving the defendant guilty of any one of such acts.</p> <p>Same. — Statute Construed.— “While-Cap Act.”- — -Constitutionality of. — The “Whit,e-Cap Act” (section 362, Elliott’s Supp.) is not unconstitutional as being in conflict with the provision of the Constitution against “cruel •and unusual punishment.” (Const., Art. I., section 16).</p> <p>Evidence. — Impeaching Testimony. — Proof of Statements at Variance with Testimony. — Rebutting Testimony. — Where a witness has been impeached by testimony that he has made statements contrary to his evidence in the case, the party who called such impeached witness may prove, in rebuttal, by the witness himself, or by other witnesses, that the witness, on other occasions, had stated the facts as he gave them in evidence.</p> <p>Appeal. — Transcript of Record. — Recital of Matters not Properly in the Record Presents no Question. — An order of a court convening the grand jury and the charge to the grand jury, when in no way connected with the trial of a cause, are not a part of the record of the cause, and their recital in the record, by the clerk, presents no question for the consideration of this court.'</p>

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

<p>Witness. — Credibility and Weight of Evidence. — Determined by Tried Court.— The credibility of a witness, and the weight to be given his testimony, are questions to be determined by the trial court.</p> <p>Same. — Impeachment.— Deposition in Evidence. — Impeachment hy a Former Deposition. — Foundation for. — Death of Deponent. — Where a deposition is read in evidence, the deponent can not be impeached by introducing a former deposition of said deponent, taken and used in another case, unless the proper foundation for such impeachment is laid. The death of the "witness does not alter the rule.</p> <p>Instructions to Jury. — Promissory Note. — Principal and Surety. — Plea of Want of Consideration. — Instruction as to Consideration. — In an action on a promissory note against a principal and his sureties, when the defense of “want of consideration” is set up, an instruction which is to the effect that a valid consideration as between the principal debtor on the note and his creditor is sufficient to support the undertaking of the sureties.</p> <p>Evidence. — Decedent's Estate. — Claimant.—Incompetency of as Witness. — Reversible Error. — Where in an action against A., the principaron a promissory note, and B., a surety, and the estate of 0., another surety, the plaintiff was permitted to testify generally in her own behalf and against all the defendants, and the court refused to instruct the jury to disregard the plaintiff's testimony as affecting the decedent’s estate, such action constituted reversible error as to the estate’.</p>

<p>Jurisdiction. — Appellate Court.- — Power to Construe Statutes. — Action to Recover Penalty for Violation of Tax Law. — Recovery Less than One Thousand Dollars. — An action to recover a penalty for fraudulently converting personal property into property not taxable, for the purpose of evading the payment of taxes thereon, is, on appeal, within the jurisdiction of the Appellate Court, when the amount of the recovery in the trial court, is less than one thousand dollars, unless some other question not within its jurisdiction arises.</p> <p>The appellate Court has power to construe statutes, es.</p>

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

<p>Collateral Attack.— When Can Avail Nothing. — Where the widow of a decedent petitioned to have all of her deceased husband’s estate set off to her free from the demands of creditors, upon the ground that it did not exceed in value the sum of $300, and such proceedings were taken as resulted in an order purporting to vest in her all of said property; and the heirs of said decedent, subsequently thereto, instituted proceedings to partition such property, claiming two-thirds thereof as having descended to them from their father, such partition proceeding being a collateral attack on the proceedings and order of the Probate Court setting aside said property to the widow, must fail, unless the order of the Probate Court is an absolute nullity.</p> <p>Real Estate. — Conveyance.—Description.—Sufficiency of. — A description of real estate is sufficient to pass title when the land can he identified by extrinsic evidence.</p> <p>Clerical Error. — Jiecord of Probate Court. — Error in Christian Name. — Setting Apart Estate to Widow. — Where, in the proceedings of a Probate Court to set off to the widow the whole of the estate, the record in one place calls the widow “Tobetha,” but elsewhere she appears by the name of . “Delilah Parker,” and in every instance, by whatever name called, she appears as the widow of James Parker, such record, when taken together, shows that the writing of the name “Tobetha” was a mere clerical error, and that the person named in the record was the widow of the decedent.</p>

<p>Judgment. — Decree.—Form of Agreed to.- — Binding Effect of.— Waiver of Defects in Fkidence.— Waiver of Defects in Complaint. — Judgment Extra-Judicial. —Fraud.—Mistake.—Where all the parties to a cause of action are in court, and enter into an agreement as to the form in which a decree shall be entered, and the decree is entered in pursuance of such agreement, the decree is valid, and binds the parties to the judgment. It matters not whether the evidence in the record supports the finding, for the parties have supplied and waived all defects in the evidence by their agreement that judgment shall be entered in a certain form; and where a judgment has been thus entered, and it is not in strict compliance with the complaint, all right to question the validity of the complaint has been waived, and the judgment, in so far as it does not exceed the jurisdiction of the court, will be valid, and can not be changed or modified, except on proof of fraud, by which a party was induced to enter into such agreement, or mistake in the form of such decree.</p> <p>Same. — Agreement as to Form. — Endorsement of the Abbreviation “O. JT.” with Signatures. — Effect of. — Where the parties to an action agreed as to the form in which a decree should be entered, and a form was drafted and submitted to counsel, who, acting for their clients, endorsed thereon the letters “O. K.,” and signed their names, such endorsement was an assent to the decree as drafted, and was binding on the attorneys’ clients.</p>

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

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

<p>Assignment op Error. — Joint Assignment. — When no Question is Presented. —When an assignment of error is that “the court below erred in refusing to quash the service of the writ of mandate and the return of the sheriff thereof,” if either the writ or service is valid the assignment of error will present no question; as the assignment is joint in its application, the acts referred to must be jointly bad or the assignment of error will fail.</p> <p>Taxes. — Superseding and Repealing Act. — Dog Tax. — Act of March 5, 1891.— The act of March 5, 1891 (Acts 1891, p. 453), relating to the taxation of dogs, and the disposition of the funds to be derived from such taxation, was general in its provisions, and intended to supersede all previous laws pertaining to said subject of taxation.</p> <p>Same. — Dog Tax. — Act of March 7, 1883, and April 8, 1885, Repealed.— Not Revived by Act of March 6, 1891. — When the act of March 6, 1891, relating to the taxation of dogs, was passed, the laws relating to the same subject, approved March 7, 1883, and April 8, 1885, were not in force, as they were in conflict with the act approved March 5, 1891, and were repealed by it, and could not be revived by the manner in which they were referred to in section 47 of the act of March 6, 1891, relating to taxation.</p> <p>Same. — Dog Tax. — Township Trustee Entitled to. — County Treasurers Should Pay Over. — The act of March 6, 1891 (Acts 1891, p. 286, section 236), makes the township trustee the custodian of the dog fund for the purpose mentioned in the statute, and when properly applied for, the county treasurer is required to pay over such fund.</p>

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

<p>tract for a Lease. — A hydraulic company sold a certain tract of land adjoining their hydraulic canal, and agreed, as part consideration, to furnish the grantees free water power for three ye'ars, and after said time to execute a lease for water power for a certain rent per annum, the lease to provide for a lien on the machinery and fixtures of a mill to be erected on said land, and to license the lessor, in default of payment of rent, to enter upon the premises, and shut off the water power, and take posses-Lease.— Contract of. — 1lent.—Lien for.' — Machinery and Fixtures. — When Chattels. — Scope of Lien.- — “Goods."—Meaning of. — License.—Verbal Consion of said machinery and fixtures, and hold the same free and discharged of all claim, right or title of the lessees, their heirs and assigns, until all rents, interest, damages, and costs due the lessee shall be paid, which lease was never executed, but the water rents were received by the hydraulic company, from time to time, and by its successor, with knowledge of the several changes in ownership of said mill, and upon the terms stipulated.</p> <p>Held, that the right to enter upon the premises, and to shut off the water power, and to take possession of the machinery and fixtures, and to hold the same free and discharged of all claim, right, or title of the owners, until all the rents, etc., shall be paid, gives no interest in the land beyond a mere license to enter thereon for the purposes mentioned.</p> <p>Held, also, that from the nature of the contract, the machinery and the fixtures of the mill must remain personal property.</p> <p>Held, also, that the machinery and fixtures being attached to the realty as a part of it, and essential to its use and value, could not enlarge the scope of the lien so as to include the realty.</p> <p>Held, also, that the lien mentioned in the lease contract is a chattel lien, and that the word “goods,” as used in the statute of frauds, is broad enough to cover “fixtures and machinery.”</p> <p>Lien. — Action on Oral Agreement to Execute a Mortgage.— When Equity will not Aid. — Fraud.—Inevitable Accident. — Relief Against. — In an action to subject machinery and mill fixtures to an equitable lien for water rent, upon an oral agreement to execute a written evidence of such lien, where it does not appear that the failure to execute such instrument was because of fraud or accident, but by neglect, equity will not aid to enforce such a lien, as it only comes to the aid of those who, though awake, have been entrapped by fraud, or have been prevented from getting their agreement put into writing by inevitable accident, and not to one who sleeps on his rights.</p> <p>Pleading. — Contract.— When Copy of Need not be Filed with Complaint.— Where an action is not to enforce a written contract, but to enforce, as executed, a contract, the terms of which had never been reduced to writing, the action is not such as requires a copy of the contract to be filed with the complaint.</p> <p>Oontbaot. — Lease.—Right of Lessee to Assign his Interest in. — Consent of Lessor. —Rent.—A lease contract, the provisions of which restricted the power of the lessees to transfer their rights in the lease without the consent of the lessor in writing, added nothing to the financial obligation of the lessees, and did not alter the terms upon which rents were to be paid.</p>

<p>Deed. — jReal Estate. — Conveyance to Husband and Wife. — Provision Against Estate in Entirety. — Tenancy in Common.- — Where a deed to a husband and wife contains the following: “Each of the above grantees having contributed equally in the purchase of the above-described real estate, it is the express understanding and agreement that said real estate shall be held by them in common, and not in joint tenancy,” the quoted provision clearly being intended to make the husband and wife tenants in common, and not in the entirety, effect will be given to the intent of the deed.</p> <p>Beal Estate. — Husband and Wife. — Conveyance to. — Words Limiting Estate. —Tenancy in Common. — Tenancy in Entirety. — Where a conveyance is made to a husband and wife without any words limiting the estate, they will hold it as tenants in entirety, but where there are words in the deed so limiting the estate conveyed that it appears that the grantor intended that the grantees should hold by moieties, such intention will prevail.</p> <p>Appeal. — Error Assigned on Pleading Alone. — Transcript.—■ What it Should Contain. — Where error is predicated upon a ruling on a pleading alone, the transcript of the record need not contain any of the proceedings after the ruling complained of.</p> <p>Pleading. — Partition.—Sufficiency of Complaint. — Present Interest. — Failure to Allege. — A complaint for partition of land, which does not allege a present interest in the land, is insufficient.</p>

<p>Railroad. — Passenger.-—-Expulsion from Train. — ■Action for Damages. — Complaint.- — -Necessary Allegations. — Theory of Complaint. — A complaint against a railroad company, for a wrongful expulsion from one of its trains by the company’s employes, is bad if it proceeds upon the theory that unnecessary force and violence were used in effecting such expulsion, unless it affirmatively shows by a statement of facts that the force employed was unnecessary, epithets alone not being sufficient to overcome the presumption that the conductor did a lawful act; and the complaint is equally defective if it proceeds upon the theory of an invasion of the plaintiff’s right as a passenger, when it does not affirmatively show by a statement of facts, that the plaintiff complied with the reasonable regulations of the company; that the conductor did a wrongful act; that the rules and regulations of the company allowed the train from which he was expelled to carry passengers, and to stop at the station for which he had taken passage.</p> <p>Same. — Rules and Regulations of the Company. — Agreements or Statements in Violation of by Ticket Agent or Conductor.-^A statement or agreement of a ticket agent or a conductor, in contravention of the rules and regulations of the company, that a train shall stop at a certain station, can not bind the company.^</p>

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

<p>Railboad. — Right of Way Along a Street. — Failure to Assess or Tender Damages. — Laying Track. — Suit to Enjoin. — Fee of Street not in Adjoining Lot-Owners. —Special Damages. — ‘ ‘ Community in General. ” — Meaning of. —Where a railroad company had secured from the proper municipal officers, the light to lay their railroad track in a certain street, which right, as a street, was acquired by more than twenty years’ adverse user, and the fee of which was not in the adjoining lot-owners, a person who had leased a lot abutting on said street, and erected a business house thereon, has no right to enjoin the company from laying their railroad track, when such company has not assessed, or tendered to the plaintiff, the damages he will sustain by reason of said track and its use as such, unless he can show that he will suffer damages thereby different from the community in general, and the term “community in general” means those who reside in the immediate vicinity of the railroad, and are subject to the inconveniences incident to its structure.</p> <p>Stbeets and Alleys. — Easement in. — Abutting Lot-Owner. — Peculiar and Distinct Interest of. — An owner of a lot abutting upon a street may have a peculiar and distinct interest in the easement in the street in front of his lot, which includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ingress and egress to and from his lot, which is an interest distinct from that ./possessed by the general public, and is appendant to the lot and the improvements thereon.</p>

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

<p>Conveyance.- — Sale of Expectancy by Heir. — When not Enforceable After a Merger of Expectancy Into a Vested Estate. — Against Public Policy. — Necessary Allegations and Proof. — Insanity of Ancestor. — -Where a person conveys his expectant interest in his ancestor’s estate, such contracts being regarded with disfavor by the law, and as against public policy, before such contract can be enforced it must be alleged and proven that there was neither fraud nor oppression, and that the ancestor had knowledge of such contract, and acquiesced therein, and the fact that the ancestor is insane, and incapable of consenting to the contract, constitutes no exception to the rule.</p>

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

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

<p>Exemption from Execution. — Sufficiency of Answer. — Necessary Allegations.— After Acquired Night of Exemption. — Can not Perpetuate Fraud. — Fraudulent Intent. — Effect on Night to Exemption. — In an action to set aside a conveyance of land as fraudulent, and subject said land to the payment of a judgment, the defendant answered, in addition to the general denial, “that she was — on the date of the execution of said contract upon which judgment was taken, at the date of the conveyance in the plaintiff’s complaint mentioned, and at the date of the rendition of the judgment — and now is, a resident householder of the State of Indiana; that she is the head of a family keeping house; that the defendant Hugh Fielder (the grantee and son of the grantor) is an infant about ten years old, and is supported by, and lives with, the defendant; that at the date of the conveyance in the plaintiff’s complaint mentioned, to wit, on the 31st day of May, 1887, and on the date of the rendition of the judgment, and ever since the date aforesaid, the defendant was not the owner of property worth over six hundred dollars, including the property in the complaint mentioned; ” that all of the real estate, personal property, goods, money, dioses in action, etc., were worth less than $600; that she was, and now is, entitled to exempt said property from sale, and she prays that it may be exempted from sale to satisfy said judgment, and that plaintiff may not recover. To this answer a demurrer was addressed and overruled.</p> <p>Held, that the answer does not disclose that she was a householder and entitled to exempt said property, at the time she conveyed it, and that she could not perpetuate fraud in a conveyance by asserting and receiving the benefits of an after acquired right of exemption.</p> <p>Held, also, that the general allegation that one was at a stated time>“ a resident householder of the State of Indiana,” is not equivalent to the essential allegation of facts constituting her right to such exemption at the time.</p> <p>Held, also, that, if at the time of a conveyance, a grantor is entitled to exemption of such property, the creditor is in no better position by reason of the existence of a fraudulent intent, as such property is beyond the reach of creditors.</p> <p>Held, also, that the demurrer addressed to said answer should have been sustained.</p> <p>Fraudulent Conveyance.— When Grantor can not Deny Validity. — Setting Aside. — No Neversion to Grantor. — A fraudulent grantor can not deny the validity of his conveyance as between himself and his grantee, and, if as to others, such conveyance be set aside, no part’ of the property or its proceeds may return to the grantor.</p> <p>Same. — Cm not be Validated by After Acquired Eight. — Exemption-.—Debtor and Creditor. — A conveyance which is fraudulent as to creditors can not afterwards bo validated as to them by an after acquired right of exemption.</p>

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

<p>Action Against the State. — Right to Maintain. — limitation of. — Statute Construed. — Act of March 9,1889. — To authorize a person having a money demand against the State, to maintain an action for the same, under the statute, Acts 1889, p. 265, it must be a claim express or implied, arising at law or equity, and must have accrued within fifteen years from the time of the commencement of the action, the limitation in section 1 of said act having express reference to the time when the demand accrued, and not to the time when the right to sue accrued.</p> <p>Action. — Claim May Exist Independent of Right to Sue. — Claim and Right of Action Accruing at Different Times. — A claim or demand may exist without a right of action for the same, and a claim may accrue at one time, and a right of action therefor at another time.</p>

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

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

<p>Promissory Note. — Attorney’s Fee. — Provision for in Note. — Failure to Allege Value of Fee. — Proof of Value.— When Proof Necessary. — In an action upon a promissory note providing for attorney’s fee, the amount claimed as such fee should be alleged, but in the absence of such an averment, evidence may be introduced as to the reasonable value of the services, and a recovery had thereon, under the general claim for damages, and, where the value of the fee is not admitted, proof as to the value thereof is necessary.</p> <p>Discretion. — Refusal of Court to Allow Plaintiff to Amend Complaint. — ■When Such Action not Reviewable on Appeal. — Where the court refused to allow the plaintiff to amend his complaint on the eve of trial, such power being in the discretion of the court, the Supreme Court can only review the action of the court when there has been a clear abuse of discretion.</p> <p>Burden op Proop.— When on Defendant. — Right to Open and Close. — Where the plaintiff is not required to make proof of his allegations, to entitle him to recover, the burden is on the defendant to establish his defense, and he has a right to open and close the case before the jury.</p> <p>Trial by Jury. — Joinder of Equitable and Legal Defenses.— When Error to Submit to Jury. — Trial by Court. — Where an answer consisting of two paragraphs setting up respectively two defenses, one equitable and triable by the court, and the other legal and triable by a jury, it is noterror to submit the cause to a jury, over the general objection of the plaintiff; but should the plaintiff confine his objection to the submission to a jury of that part of the cause embracing the equitable defense, then it would be reversible error to overrule it, and thus submit the whole cause, unless no evidence had been introduced in support of the legal defense.</p> <p>Instructions to Jury. — Correct in Terms, but Without Case Made by Pleadings. — Fhroneous.—The giving of an instruction which is correct in terms, but lies entirely without the case made by the pleadings, is erroneous, and, if not harmless, will work a reversal of the cause.</p>

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

<p>Lien. — Drainage.—Ditch Assessment. — When Does not Affect Mortgagee.— Mortgage Lien Superior to. — The lien of a public ditch assessment, upon land affected thereby, can not bind a mortgagee who acquired the title to said land, by his mortgage, free from such assessment, a senior mortgage lien being superior to the lien acquired under the ditch assessment.</p>

<p>Will. — Construction of.— Vested Estates. — Contingent Remainders not Favored. ■ — Decedent’s Estate.■ — -The law favors vested estates, and remainders will never be held to be contingent when they can, consistently with the intention of the testator, be held to be vested. The prime object in the construction of a will is to arrive at the intention of the testator.</p> <p>Same. — Devise in Fee'Simple. — Conditional Vesting of. — Divesting Devisee and Vesting Same in Others by Will. — Land may be devised to a person in fee, to be divested on the failure of certain conditions, and then to vest in other persons. '</p> <p>Same. — Vested Estates. — Conditional Vesting of Estate. — Contingent Remainder. —A. devised all of his estate to his wife during her lifetime, and directed that at her death it be divided equally among his two children and a grandson, the devise to the grandson being upon the condition that he attain the, age of twenty-one years; should the grandson die without issue, his share to be equally divided between his two children before mentioned, or their descendants according to law..</p> <p>Held, that, as the law favors vested estates, the fee to one-third of the estate, upon the death of the testator, vested in the grandson, regardless of his age, subject to be divested in case he did not attain the age of twenty-one years, and that, should he die without issue, his share should go equally to the other two children, or to their descendants according to law.</p>

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

<p>Taxes. — Tax Law of 1891. — Assessment of “Railroad Traek” and “Rolling Stock.” — Due Process of Law. — Equal Protection of the Law. — Constitutional Law. — Under the tax law of 1891, the only real difference in the assess- ■ ment of “railroad track” and “rolling stock” and other property is that other property is valued and assessed by assessors and county boards of review, with a right of hearing on the part of the owners of such property, before the county board of review, which is vested with power to correct errors, and a right of appeal is given from such board to the State board ; while property denominated “railroad track” and “rolling stock ” is valued and assessed in the first instance by the State board, with a right of hearing before such board, to the owners of such property, with power vested in such board to correct errors. The difference in the mode of assessment is not such as denies to owners of such railroad property the “equal protection of the law,” nor does it deny them “due process of law.”</p> <p>Same. — Railroad.—Importation of Values.— Unit Rule of Valuation.- — Interstate Commerce. — The tax law of 1891 is not invalid as authorizing the importation of values, by reason of considering the road as a unit and taking , such value for assessment as the part of the road lying within the State bears to the whole road, and such a mode of assessment does not interfere with interstate commerce.</p> <p>Same. — State Board, of Tax Commissioners. — Finality of Action. — Fraud.-—The record required to be kept by the State board is final and conclusive, and the court can not inquire into the assessment made by the State board, unless it be attacked for fraud.</p> <p>Same. — State Board of Tax Commissioners.- — Not a Judicial Tribunal. — Constitutionality of Act Creating. — The tax law of 1891 is not invalid as conferring judicial powers upon the State Board of Tax Commissioners, the Constitution requiring that judicial officers shall be elected by the people, and the law providing that two members of said board shall serve by appointment, and the other members being executive and administrative State officers.</p> <p>Same. — State Board of Tax Commissioners. — Fixing Values on a Wrong Basis. —The record of the State board does not show that values were fixed on a wrong basis. '</p>

<p>Appeal from the Fayette Circuit Court.</p>

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

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

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

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

<p>Appeal. — Overruling Motion to Strike Out. — -Not Cause for Reversal. — Ihe Supreme Court will not reverse a judgment on account of the failure of the trial court to sustain a motion to strike out parts of the complaint.</p> <p>Fraudulent Conveyance. — Action to Set Aside. — Right to Maintain. — Necessary Averment. — A Claim for Tort Constitutes One a Creditor. — A voluntary conveyance in fraud of creditors may be set aside at the suit of subsequent creditors when it has been executed to defraud subsequent as well as existing creditors; in such a case it is necessary to aver and prove that the conveyance was made for the purpose of defrauding subsequent creditors ; and where one has a cause of action against another for damages for a tort, the former is a creditor, and entitled to maintain an action to set aside a conveyance made by the latter in fraud of creditors.</p> <p>Same.' — Action to Set Aside. — Complaint.—Sufficiency.—Necessary Allegation. —In an action to set aside a fraudulent conveyance the complaint is insufficient if it does not aver that the grantor did not have, at the time of the conveyance, property sufficient to pay his indebtedness; and the statement that such grantor did not have property subject to execution at the time the action was commenced, or at the time an execution was issued and returned, is not sufficient to take the place of the above-mentioned essential averment.</p>

<p>Assignment oe Ebbob. — Insufficiency of Assignment. — When Agreement of Parties in Trial Court will not Bind on Appeal. — Agreement to Abide Result of Another Action. — Where the record shows that the parties to the action agreed that the finding and decree therein should be in accordance with the decision of the court in another cause, No. 1,710, which was pending, and was then being held under advisement, and when judgment was rendered in said cause, No. 1,710, and the cause, as to the parties to said agreement, was adjudged in accordance with said cause, No. 1,710, an appeal was taken, and' it was assigned as error that “ the court below erred in finding for appellee, and rendering judgment and decree in his favor in accordance with the finding and decree in said cause, No. 1,710, - mentioned in the record in this cause,” such assignment of error presents no question for review, as the agreement of the parties in the trial court can not affect the parties on appeal so as to make the judgment on appeal, in cause No. 1,710, conclusive as to the rights of the parties to said agreement, on appeal.</p>

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

<p>Appeal from the Sullivan Circuit Court.</p>

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

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

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

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